Rebecca Ann Jaramillo v. Nancy A. Berryhill

Filing 19

MEMORANDUM OPINION by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 REBECCA ANN JARAMILLO, ) ) Plaintiff, ) ) v. ) ) NANCY A. BERRYHILL, ACTING ) COMMISSIONER OF SOCIAL SECURITY, ) ) Defendant. ) ___________________________________) NO. CV 17-6036-E MEMORANDUM OPINION 17 18 PROCEEDINGS 19 20 21 Plaintiff filed a Complaint on August 14, 2017, seeking review of 22 the Commissioner’s denial of benefits. The parties filed a consent to 23 proceed before a United States Magistrate Judge on September 13, 2017. 24 25 Plaintiff filed a motion for summary judgment on December 27, 26 2017. Defendant filed a cross-motion for summary judgment on 27 January 26, 2018. 28 without oral argument. The Court has taken both motions under submission See L.R. 7-15; “Order,” filed August 18, 2017. 1 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 2 3 The Court previously remanded Plaintiff’s disability claim for 4 further administrative proceedings. See Administrative Record (“A.R.” 5 633-44 (Memorandum Opinion and Judgment filed January 15, 2015, in 6 Jaramillo v. Colvin, CV 14-3827-E). 7 since January 26, 2011, based on a combination of alleged exertional 8 and non-exertional impairments (A.R. 26, 52-65, 155, 174). 9 contained a “Residual Functional Capacity Questionnaire” (“RFC Plaintiff had asserted disability The record 10 Questionnaire”) from October 2012, signed by Dr. Herman Carillo (one 11 of the physicians at a clinic where Plaintiff had received treatment) 12 (A.R. 370-73). 13 impairments disable her from all employment (id.). The RFC Questionnaire opined that Plaintiff’s 14 15 An Administrative Law Judge (“ALJ”) found Plaintiff not disabled 16 despite severe impairments, relying on the opinions of non-treating, 17 non-examining physicians who had reviewed some but not all of 18 Plaintiff’s medical records (A.R. 31-36, 84-88, 93-96, 102-06, 111, 19 119). 20 consultative physicians. 21 the RFC Questionnaire as allegedly inconsistent with the objective 22 medical evidence, and because Plaintiff testified that she had not 23 been seen or treated by Dr. Carillo (A.R. 33; see also A.R. 65-66 24 (Plaintiff’s testimony that she saw another doctor and a physician’s 25 assistant at the clinic)). The ALJ had not ordered that Plaintiff be examined by any The ALJ rejected the opinions expressed in 26 27 28 In previously remanding this matter, the Court held that the ALJ had erred by: (1) not fully developing the record concerning Dr. 2 1 Carillo’s role, if any, in Plaintiff’s treatment; (2) relying solely 2 on the opinions of the non-examining physicians to determine 3 Plaintiff’s residual functional capacity; and (3) failing to order a 4 consultative examination of Plaintiff. See A.R. 638-43. 5 6 On remand, a new ALJ held two administrative hearings, obtained 7 evidence from consultative examiners and a vocational expert, and 8 issued a new, partially-favorable decision. 9 (decision), 582-96 (hearing transcripts), 929-34 (vocational expert 10 interrogatories), 949-51 (vocational expert cross-interrogatories), 11 1061-67 (2014 Internal Medicine Consultation evaluation by Dr. John 12 Sedgh), 1549-55 (2016 Internal Medicine Consultation evaluation by Dr. 13 Sedgh), 1632-39 (2016 Comprehensive Psychological Evaluation by Dr. 14 Michael Cohn). 15 number of “severe” impairments since her alleged onset date, but has 16 retained a residual functional capacity for a limited range of 17 sedentary work: See A.R. 556-70 The ALJ found that Plaintiff has suffered from a 18 19 [S]he can stand up to two (2) hours and walk up to two (2) 20 hours, cumulatively, and sit up to six (6) hours, 21 cumulatively, in an eight-hour workday; she can lift and 22 carry up to 20 pounds occasionally and ten pounds 23 frequently; she can occasionally climb, balance, bend, 24 stoop, push and pull, finger, handle, and crawl; she may 25 frequently perform complex technical work and can perform a 26 full range of simple, repetitive work at level 7 reasoning; 27 she may exercise frequent concentration and persistence in 28 pace; she may have occasional contact with co-workers and 3 1 the general public; and she may perform work at stress level 2 5 on a scale of (1) one to (10) ten, one, by example, the 3 work of a night dishwasher and ten being the work of an air 4 traffic controller, as these occupations are generally 5 performed in the national economy. 6 7 See A.R. 561 (emphasis added). 8 9 Given this capacity, the ALJ found Plaintiff disabled as of 10 April 23, 2015 – the date Plaintiff turned 50 and became an individual 11 “closely approaching advanced age.” 12 Pt. 404, subpt. P, App. 2 (the “Grids”), Rule 201.09).1 13 the period from Plaintiff’s alleged onset date until April 23, 2015, 14 the ALJ found that there were sedentary unskilled jobs existing in 15 significant numbers in the national economy that Plaintiff could 16 perform: 17 Ampoule Sealer (DOT 559.687-014). 18 vocational expert’s opinion at A.R. 932-34, which the ALJ claimed was 19 consistent with the information found in the Dictionary of 20 Occupational Titles (“DOT”)). See A.R. 569-70 (citing 20 C.F.R. However, for Stuffer (DOT 731.685-014), Addresser (DOT 209.587-010), and See A.R. 569-70 (adopting 21 22 STANDARD OF REVIEW 23 24 25 Under 42 U.S.C. section 405(g), this Court reviews the Administration’s decision to determine if: (1) the Administration’s 26 27 28 1 A conclusion of disability, when directed by the Grids, is irrebuttable. See Cooper v. Sullivan, 880 F.2d 1152, 1157 (9th Cir. 1989). 4 1 findings are supported by substantial evidence; and (2) the 2 Administration used correct legal standards. 3 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 4 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 5 682 F.3d 1157, 1161 (9th Cir. 2012). 6 relevant evidence as a reasonable mind might accept as adequate to 7 support a conclusion.” 8 (1971) (citation and quotations omitted); see also Widmark v. 9 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). See Carmickle v. Substantial evidence is “such Richardson v. Perales, 402 U.S. 389, 401 10 11 If the evidence can support either outcome, the court may 12 not substitute its judgment for that of the ALJ. 13 Commissioner’s decision cannot be affirmed simply by 14 isolating a specific quantum of supporting evidence. 15 Rather, a court must consider the record as a whole, 16 weighing both evidence that supports and evidence that 17 detracts from the [administrative] conclusion. But the 18 19 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 20 quotations omitted). 21 22 DISCUSSION 23 24 25 I. Substantial Evidence Does Not Support the ALJ’s Finding that Plaintiff Could Perform Work Before She Turned 50. 26 27 28 Substantial evidence does not support the ALJ’s determination that Plaintiff could perform the identified jobs prior to April 23, 5 1 2015. In making this determination, the ALJ relied on the vocational 2 expert’s opinion. 3 this opinion and information found in the DOT. There exists an unexplained inconsistency between 4 5 “[T]he best source for how a job is generally performed is 6 usually the Dictionary of Occupational Titles.” Pinto v. Massanari, 7 249 F.3d 840, 845 (9th Cir. 2001) (citations omitted). 8 DOT “is not the sole source of admissible information concerning 9 jobs”; an ALJ also may rely on the testimony of a vocational expert However, the 10 concerning the requirements of a particular occupation. See Johnson 11 v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995) (citation omitted). 12 Such testimony can furnish substantial evidence to support an ALJ’s 13 determination that a claimant is not disabled. 14 Secretary, 882 F.2d 1474, 1478-80 (9th Cir. 1989). See Barker v. 15 16 Before relying on vocational expert testimony concerning the 17 requirements of a particular occupation, “the ALJ must ask the 18 [vocational expert] if his or her testimony is consistent with the 19 DOT.” 20 191 (9th Cir. 2010) (citing Massachi v. Astrue, 486 F.3d 1149, 1152-53 21 (9th Cir. 2007)); see also Zavalin v. Colvin, 778 F.3d 842, 846 (9th 22 Cir. 2015) (discussing the ALJ’s duty to resolve an apparent conflict 23 between vocational expert testimony and the DOT; the “failure to 24 resolve an apparent inconsistency may leave. . . a gap in the record 25 that precludes us from determining whether the ALJ’s decision is 26 supported by substantial evidence”) (citing, inter alia, SSR 00-4p). 27 /// 28 /// Wentz v. Commissioner Social Sec. Admin., 401 Fed. App’x 189, 6 1 SSR 00-4p provides in pertinent part: 2 3 In making disability determinations, we rely primarily 4 on the DOT. . . for information about the requirements of 5 work in the national economy. 6 and 5 of the sequential evaluation process. 7 [vocational experts]. . . at these steps to resolve complex 8 vocational issues. . . . We use [the DOT] at steps 4 We may also use 9 10 Occupational evidence provided by a [vocational expert] 11 . . . generally should be consistent with the occupational 12 information supplied by the DOT. 13 unresolved conflict between [vocational expert]. . . 14 evidence and the DOT, the adjudicator must elicit a 15 reasonable explanation for the conflict before relying on 16 the [vocational expert]. . . evidence to support a 17 determination or decision about whether the claimant is 18 disabled. . . . When there is an apparent 19 20 Neither the DOT nor the [vocational expert]. . . 21 evidence automatically “trumps” when there is a conflict. 22 The adjudicator must resolve the conflict by determining if 23 the explanation given by the [vocational expert]. . . is 24 reasonable and provides a basis for relying on the 25 [vocational expert]. . . testimony rather than on the DOT 26 information. 27 28 See SSR 00-4p, 2000 WL 1897804, at *2 (Dec. 4, 2000) (emphasis added); 7 1 see also Gutierrez v. Colvin, 844 F.3d 804, 808 (9th Cir. Nov. 29, 2 2016) (“For a difference between an expert’s testimony and the [DOT’s] 3 listings to be fairly characterized as a conflict, it must be obvious 4 or apparent.”). 5 6 In the present case, the ALJ defined a residual functional 7 capacity limiting Plaintiff to only occasional handling and fingering. 8 The vocational expert identified three jobs a person with this 9 capacity assertedly could perform: Stuffer, Addresser and Ampoule 10 Sealer. According to the DOT, however, a person with this capacity 11 could not perform any of these three jobs. 12 of the three jobs requires frequent (i.e. more than occasional) 13 handling, and two of the three jobs also require frequent fingering. 14 See DOT 731.687-014, 1991 WL 679811 (1991) (Stuffer job requires 15 frequent handling); DOT 209.587-010, 1991 WL 671797 (1991) (Addresser 16 job requires frequent handling and frequent fingering); DOT 559.687- 17 014, 1991 WL 683782 (1991) (Ampoule Sealer requires frequent handling 18 and frequent fingering). According to the DOT, each 19 20 The ALJ purported to rely on the vocational expert’s opinion to 21 find Plaintiff not disabled before her 50th birthday. As a matter of 22 law, the apparent, obvious and unresolved conflict between the 23 vocational expert’s opinion and the DOT precludes such reliance. 24 Social Security Ruling (“SSR”) 00-4p;2 Light v. Social Sec. Admin., 25 119 F.3d 789, 794 (9th Cir. 1997) (error that “[n]either the ALJ nor 26 the vocational expert explained the reason for departing from the 27 2 28 Social Security Rulings are “binding on the ALJs.” Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). 8 See 1 DOT”); Johnson v. Shalala, 60 F.3d at 1435 (“an ALJ may rely on expert 2 testimony which contradicts the DOT, but only insofar as the record 3 contains persuasive evidence to support the deviation”). 4 5 At step five of the sequential evaluation process, the burden 6 shifts from the claimant to the Administration to show that the 7 claimant is able to perform other work that exists in significant 8 numbers in the national economy. 9 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2). Tackett v. Apfel, 180 F.3d at 1100; Absent explanation of the 10 apparent conflict between the vocational expert’s opinion and the DOT, 11 the vocational expert’s opinion cannot constitute substantial evidence 12 to support the conclusion that Plaintiff could work before her 50th 13 birthday. 14 Burkhart v. Bowen, 856 F.2d 1335, 1341 (9th Cir. 1988) (Administration 15 may not speculate concerning the requirements of particular jobs). See Zavalin v. Colvin, 778 F.3d at 846; see generally 16 17 During the administrative proceedings and before this Court, 18 Plaintiff’s counsel failed to point out the inconsistency between the 19 vocational expert’s opinion and the DOT. 20 might argue that this failure effected a waiver of the issue, the 21 argument would not be well taken. 22 investigate and resolve any apparent conflict between the [vocational 23 expert’s] testimony and the DOT, regardless of whether a claimant 24 raises the conflict before the agency.” 25 874, 882 (9th Cir. 2017) (“Shaibi”) (citing SSR 004-p; distinguishing 26 from situation where claimant waived right to invoke non-DOT sources 27 to challenge vocational expert’s job-number estimates because the ALJ 28 had no duty sua sponte to take administrative notice of non-DOT To the extent Defendant First, “an ALJ is required to 9 Shaibi v. Berryhill, 870 F.3d 1 sources); Lamear v. Berryhill, 865 F.3d 1201, 1206 (9th Cir. 2017) 2 (“Lamear”) (“our law is clear that a counsel’s failure [to raise the 3 issue] does not relieve the ALJ of his express duty to reconcile 4 apparent conflicts through questioning: 5 conflict between the vocational expert’s testimony and the DOT – for 6 example, expert testimony that a claimant can perform an occupation 7 involving DOT requirements that appear more than the claimant can 8 handle – the ALJ is required [under SSR 004-p] to reconcile the 9 inconsistency.’”) (quoting Zavalin v. Colvin, 778 F.3d at 846; ‘When there is an apparent 10 emphasis added)); see also Randazzo v. Berryhill, 2017 WL 6374297, at 11 *1 (9th Cir. Dec. 13, 2017) (rejecting argument that claimant waived 12 issue of conflict between vocational expert testimony and the DOT by 13 failing to raise the issue before the ALJ; citing Lamear, 865 F.3d at 14 1205-06, and distinguishing Shaibi, 870 F.3d at 881-83); Alvarenga v. 15 Berryhill, 2018 WL 400740, at *2, *4 (C.D. Cal. Jan. 12, 2018) 16 (rejecting argument that plaintiff waived claim that the ALJ erred by 17 failing to resolve an apparent conflict between the DOT and vocational 18 expert testimony by not raising the claim with the ALJ; citing, inter 19 alia, SSR 00-4p and distinguishing Shaibi); Borutta v. Berryhill, 2018 20 WL 324087, at *5 (C.D. Cal. Jan. 5, 2018) (rejecting identical waiver 21 argument; also noting that “[a]n ALJ cannot simply rely on the 22 [vocational expert’s] testimony that no such conflict exists”) 23 (citations and internal quotation marks omitted). 24 25 Second, the Court must review the administrative decision to 26 determine if the decision is supported by substantial evidence. 27 Carmickle v. Commissioner, 533 F.3d at 1159. 28 unresolved conflict discussed above prevents the vocational expert’s 10 See The apparent and 1 opinion from constituting substantial evidence to support the 2 administrative decision. 3 4 5 II. The Court is Unable to Conclude that the ALJ’s Error Was Harmless. 6 7 “[A]n ALJ’s error is harmless where it is inconsequential to the 8 ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 9 1104, 1115 (9th Cir. 2012) (citations and quotations omitted); see 10 Treichler v. Commissioner, 775 F.3d 1090, 1105 (9th Cir. 2014) 11 (“Where, as in this case, an ALJ makes a legal error, but the record 12 is uncertain and ambiguous, the proper approach is to remand the case 13 to the agency”); cf. McLeod v. Astrue, 640 F.3d 881, 887 (9th Cir. 14 2011) (error not harmless where “the reviewing court can determine 15 from the ‘circumstances of the case’ that further administrative 16 review is needed to determine whether there was prejudice from the 17 error”). 18 the ALJ’s error was harmless. 19 evidence fails to support the ALJ’s step five determination that 20 Plaintiff can perform the jobs identified. Under these standards, the Court is unable to conclude that As previously indicated, substantial 21 22 III. Remand for Further Administrative Proceedings is Appropriate. 23 24 The circumstances of this case warrant remand for further 25 administrative proceedings, which could remedy the ALJ’s error. 26 McLeod v. Astrue, 640 F.3d at 888; see also INS v. Ventura, 537 U.S. 27 12, 16 (2002) (upon reversal of an administrative determination, the 28 proper course is remand for additional agency investigation or 11 See 1 explanation, except in rare circumstances); Leon v. Berryhill, 880 2 F.3d 1041 (9th Cir. 2017) (reversal with a directive for the immediate 3 calculation of benefits is a “rare and prophylactic exception to the 4 well-established ordinary remand rule”); Dominguez v. Colvin, 808 F.3d 5 403, 407 (9th Cir. 2015) (“Unless the district court concludes that 6 further administrative proceedings would serve no useful purpose, it 7 may not remand with a direction to provide benefits”); Treichler v. 8 Commissioner, 775 F.3d at 1101 n.5 (remand for further administrative 9 proceedings is the proper remedy “in all but the rarest cases”). 10 Here, it is unclear whether there exists an explanation for the 11 conflict discussed above. 12 other jobs Plaintiff could have performed before her 50th birthday. 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// It is also unclear whether there may exist 12 1 CONCLUSION 2 3 For all of the foregoing reasons,3 Plaintiff’s and Defendant’s 4 motions for summary judgment are denied and this matter is remanded 5 for further administrative action consistent with this Opinion. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: February 14, 2018. 10 11 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3 27 28 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. 13

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