Hensley v. Commissioner of Social Security

Filing 18

ORDER Reversing Agency's Denial of Benefits and Remanding for Further Proceedings, signed by Magistrate Judge Sandra M. Snyder on 6/4/15. CASE CLOSED. (Verduzco, M)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 SHARON LOUISE HENSLEY 10 Plaintiff, 11 12 13 v. Case No. 1:14-cv-00505-SMS ORDER REVERSING AGENCY’S DENIAL OF BENEFITS AND REMANDING FOR FURTHER PROCEEDINGS CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. 14 15 Plaintiff Sharon Louise Hensley seeks judicial review of a final decision of the 16 17 18 19 20 Commissioner of Social Security (“Commissioner”) denying her application for supplemental security income (“SSI”) pursuant to Title XVI of the Social Security Act (42 U.S.C. § 301 et seq.) (the “Act”). The matter is before the Court on the parties' cross-briefs, which were submitted, without oral argument, to the Honorable Sandra M. Snyder, U.S. Magistrate Judge. Plaintiff contends that the ALJ erred in two ways: (1) by concluding that Plaintiff's work as a 21 22 23 24 25 26 27 28 sample provider qualified as past relevant work when her earnings did not exceed the requisite level necessary to characterize the job as substantial gainful activity, and (2) by accepting without analysis the vocational expert's misclassification of Plaintiff's job caring for special needs students. Following consideration of applicable law and the administrative record as a whole, the Court agrees that the ALJ failed to articulate fully (1) his basis for treating Plaintiff's prior work as substantial gainful activity and (2) his acceptance of the vocational expert's categorization of Plaintiff's prior /// 1 1 work as a job title with highly dissimilar duties and requirements. Therefore, the Court reverses the 2 denial of disability benefits and remands for additional proceedings. 3 I. 4 Procedural History On January 3, 2011, Plaintiff filed an application for supplemental security income, alleging 5 disability beginning August 1, 2010. The Commissioner initially denied the claims on May 26, 6 2011, and upon reconsideration, on August 18, 2011. On October 5, 2011, Plaintiff filed a timely 7 request for a hearing. 8 9 Plaintiff appeared and testified at a hearing on May 10, 2012. Edwin T. Kurata, an impartial vocational expert, also appeared and testified. 10 On September 14, 2012, Administrative Law Judge John C. Tobin denied Plaintiff’s 11 application. The Appeals Council denied review on February 19, 2014. On April 9, 2014, Plaintiff 12 filed a timely complaint seeking this Court’s review. 13 II. Factual Background 14 A. 15 Plaintiff (born May 9, 1948) last worked in 2010 demonstrating products in supermarkets and Plaintiff's Testimony 16 warehouse club stores such as Costco. She distributed product samples and sometimes cooked the 17 product she was promoting. She last earned significant income in 2007, when she earned about 18 $3700. Thereafter, she attended community college and worked part time, never earning more than 19 $900 per year. Plaintiff completed all requirements for an associate degree in history and political 20 science except for math classes, which she was unable to pass because of a learning disability 21 (dyscalculia). Plaintiff had also previously worked as a teacher's assistant in a special education 22 program. 23 Plaintiff experienced constant back, neck, and arm pain, which she treated with Aleve. She 24 had difficulty standing or sitting in a single position, ultimately experiencing pain, muscle spasms, 25 and breathing difficulty. The pain had become progressively worse and impaired her ability to sleep. 26 In response to the ALJ's question, Plaintiff testified that since she supported herself on a social 27 security check of $229.00 per month, she lacked the funds for prescription pain medication. 28 /// 2 1 Although she still drove, Plaintiff had difficulty turning to look behind the car and depended 2 on functioning side mirrors. At the time of the hearing, Plaintiff did not own a car and commuted by 3 bus. Using the bus was difficult because of the walking required to and from the bus stop. 4 Combined with her remote residence in Mojave, limited transportation interfered with Plaintiff's 5 ability to secure affordable medical care.1 6 7 Plaintiff also had high blood pressure and diabetes. She was attempting to reduce her blood sugar level through diet so that she would not need to take insulin. 8 B. 9 In an undated disability report, Plaintiff stated that since her last report on June 21, 2011, her 10 levels of pain had increased. She recently experienced an instance of unbearable pain that prevented 11 her turning her head to the right. She had also begun to have recurrent pain in the toes of her left 12 foot that occurred just after she went to bed and prevented sleep for about two hours until it 13 subsided. 14 Disability Report On March 26, 2013, Plaintiff reported that her stamina had decreased as she experienced 15 increased pain in her neck, shoulders, back, and left arm. To prevent back spasms, which left her 16 breathless and in severe pain, she needed to rest frequently. She was unable to secure regular 17 medical care since the nearest free clinic was in Bakersfield, sixty miles away by bus. She had 18 begun to experience dizzy spells but had no health insurance and lacked the funds to pay for 19 necessary tests. She was also being treated for acid reflux disease and high blood pressure. 20 C. 21 On February 22, 2000, Plaintiff was treated at the emergency room of Antelope Valley 22 Hospital. She had injured her back while lifting a child at work. The emergency room doctors 23 diagnosed back strain and prescribed pain medication and referred Plaintiff to a workers 24 compensation physician. 25 26 Medical Records From 2002 to 2012, Plaintiff received primary care from the Antelope Valley Community Clinic. Initially, she was treated at the Care-avan mobile clinic. The administrative record includes 27 28 1 Although a mobile medical clinic previously served Mojave residents monthly, the service succumbed to lack of financing. Thereafter, Plaintiff needed to travel to a clinic in Lancaster to obtain medical care. 3 1 treatment notes for twenty appointments, annually at first and monthly at the end. Plaintiff's 2 diagnoses included high blood pressure (hypertension), obesity, anxiety, arthritis (and joint pain 3 generally), GERD, chronic neck and back pain, abnormal EKG, and type 2 diabetes. Her treating 4 physicians consistently recommended weight loss through diet and exercise; Plaintiff ultimately lost 5 approximately thirty pounds. 6 7 On January 12, 2011, radiologist Marcelo Spector, M.D., noted that a chest x-ray revealed a calcified aorta consistent with atherosclerotic disease. 8 9 On April 22, 2011, internist Kristof Siciarz, M.D., performed a consultative exam for the agency. Plaintiff identified her chief complaints to be back and neck pain, both of which had 10 affected her for many years, but had been exacerbated by a lifting injury two years earlier. The 11 straight leg raise test was positive at sixty degrees.2 Dr. Siciarz diagnosed chronic neck and back 12 pain with mild limitation of range of motion in the back and discomfort when turning the neck; 13 hypertension; and diabetes. He opined that Plaintiff could lift and carry fifty pounds occasionally 14 and 25 pounds frequently, and stand, walk, and sit for six hours in an eight-hour workday. 15 On April 26, 2011, William Goldsmith, M.D., a psychiatrist and neurologist, prepared a 16 psychiatric evaluation for the agency. He noted that Plaintiff was a good historian and did not claim 17 psychiatric disability.3 Dr. Goldsmith, who diagnosed no psychiatric or personality problems, 18 opined that Plaintiff had a GAF of 60.4 He opined: 19 /// 20 /// 21 22 23 24 25 26 27 28 2 The straight leg raising test is administered during a physical examination to determine whether a patient with low back pain has an underlying herniated disc. The test is positive if the patient experiences pain down the back of the leg when the leg is raised. Miller v. Astrue, 2010 WL 4942814 (E.D. Cal. November 30, 2010) (No. 1:09-cv-1257-SKO). 3 The agency apparently considered the possibility of a mental health impairment because of a mention in a medical report of anxiety. See AR 249. 4 The Global Assessment of Functioning (GAF) scale may be used to report an individual=s overall functioning on Axis V of the diagnosis. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders at 32 (4 th ed., Text Revision 2000) (ADSM IV TR@). It considers Apsychological, social, and occupational functioning on a hypothetical continuum of mental health-illness,@ excluding Aimpairment in functioning due to physical (or environmental) limitations.@ Id. at 34. The first description in the range indicates symptom severity; the second, level of functioning. Id. at 32. In the case of discordant symptom and functioning scores, the final GAF rating always reflects the worse of the ratings. Id. at 33. GAF 60 is at the top of the range GAF 51-60, which indicates AModerate symptoms (e.g., flat affect and circumstantial speech, occasional panic attack) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).@ Id. at 34. 4 1 3 The claimant is a formerly high functioning woman with above average intelligence. She stopped work because of her physical problems. She is in need of a good medical work up and treatment. 4 AR 227. 5 Dr. Goldsmith concluded that Plaintiff was capable of performing understanding and 2 6 7 carrying out both simple and detailed and complex instructions. Her ability to maintain concentration, persistence, and pace was intact. She remained able to work without special or 8 additional supervision. Her ability to relate and interact with supervisors, coworkers, and the public 9 10 was slightly impaired, as was her ability to adapt to the stresses common to a normal work 11 environment. Plaintiff was able to maintain regular attendance and to perform work activities 12 consistently. 13 14 15 P. Bianchi, M.D., prepared a physical residual functional capacity assessment on May 2, 2011. Dr. Bianchi opined that Plaintiff could lift and carry fifty pounds occasionally and 25 pounds frequently, and could sit, stand, and walk six hours in an eight-hour workday. 16 17 18 19 On May 23, 2011, Heather Barons, Psy.D., completed the psychiatric review technique, concluding that Plaintiff had no medically determinable impairment. Chiropractor Wayne Hodges, D.C., C.C.S.P., examined Plaintiff on April 20, 2012. Dr. 20 Hodges, who had treated Plaintiff from 1997 to 2002, noted that Plaintiff had experienced cervical, 21 lumbar, and thoracic pain since the 1990s. The pain was exacerbated by her injury in 2000. Dr. 22 Hodges opined: 23 24 25 26 The patient has a degenerative lumbar disc with likely stenosis which is aggravated with prolonged weight bearing. She also has increased thoracic kyph[o]sis and degenerative spondylosis in the upper thoracic region. There is a chronic myofascial pain syndrome with abnormal posture related to the anterior head translation which aggravates the cervical and thoracic spine structures causing cervicogenic pain. 27 AR 317. 28 5 On June 1, 2012, physician assistant Shimeaka Garrett conducted an initial health assessment 1 2 of Plaintiff, who was transferring her care to National Health Services in Tehachapi. Ms. Garrett 3 noted that Plaintiff was uncomfortable in her chair and constantly readjusted her position. Lab 4 testing confirmed Plaintiff's diabetes and revealed high cholesterol levels. Ms. Garrett and N. 5 Avadalla, M.D., referred Plaintiff for an MRI of her neck and for spinal x-rays. 6 Mohamed Naheedy, M.D., reviewed Plaintiff's x-rays on June 27, 2012. The thoracic spine 7 x-ray revealed minimal degenerative changes, minimal scoliosis, and possibly mild osteoporosis. 8 9 Cervical spine x-rays showed mild-to-moderate bilateral uncovertebral and facet hypertrophy from 10 C3 to C7 with no foraminal impingement. Dr. Naheedy opined that calcification in the right and left 11 mid-neck suggested artery calcification. Lumbar spine x-rays indicated moderate to severe disc 12 degeneration at L5-S1 and minimal bilateral facet hypertrophy as well as minimal narrowing of the 13 disc spaces at L4-L5 and L3-L4. 14 At a National Health appointment on June 28, 2012, Plaintiff reported dizziness and 15 16 palpitations. Ms. Garrett ordered a 24-hour Holter monitor and a CT of the brain. In late June and early July 2012, radiologist Lawrence McNutt, M.D., interpreted the MRI 17 18 results. The MRI of Plaintiff's lumbar spine indicated mild degenerative disc disease at L2-L3 and 19 L3-L4, and moderate degenerative disc disease at L4-L5 and L5-S1. Although Dr. McNutt observed 20 minimal degenerative change of the mid-thoracic spine, the spinal cord appeared mildly atrophic, 21 measuring 5 mm. in diameter. The cervical spine had mild degenerative change with a poorly 22 characterized lesion in the spinal cord at C3. Because the MRI had been performed without 23 24 intravenous contrast, "the differential diagnosis is quite broad and includes both benign and 25 malignant neoplasm, infection, posttraumatic change and even demyelinating disease." AR 359. Dr. 26 McNutt recommended a follow-up exam with contrast enhancement. 27 /// 28 /// 6 D. 1 Vocational Expert Testimony Vocational expert Edwin T. Kurata testified that Plaintiff's past work included demonstrator 2 3 in supermarkets (No. 297.354-010, light, SVP 3) and teacher aide II (No. 249.367-074, light, SVP 4 3). Mr. Kurata noted that since Plaintiff was required to lift and carry the students to various 5 locations within the school, she performed the teacher aide position as heavy. 6 For the first hypothetical question, the ALJ directed Mr. Kurata to assume a hypothetical 7 person of the same age, education, and experience as Plaintiff, who could perform medium work 8 9 with occasional stooping, kneeling, crouching, and crawling. Mr. Kurata opined that the 10 hypothetical person could perform Plaintiff's past work as a demonstrator and could work as a 11 teacher aide as normally performed (light work). 12 13 14 For the second hypothetical question, the ALJ directed Mr. Kurata to assume the same hypothetical person described in the first hypothetical question, except that the second hypothetical person was limited to work at the light exertional level and needed to alternate sitting and standing 15 16 17 on the half hour. Mr. Kurata opined that the hypothetical person could not perform Plaintiff's past work and would have no transferable skills. Because the ALJ considered the work available to the 18 second hypothetical person to be determinable using the Grids, he did not ask Mr. Kurata to provide 19 examples of jobs available in California or in the national marketplace. 20 III. 21 22 Discussion A. Scope of Review Congress has provided a limited scope of judicial review of the Commissioner’s decision to 23 24 deny benefits under the Act. In reviewing findings of fact with respect to such determinations, a 25 court must determine whether substantial evidence supports the Commissioner’s decision. 42 U.S.C. 26 § 405(g). Substantial evidence means “more than a mere scintilla” (Richardson v. Perales, 402 U.S. 27 389, 402 (1971)), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 28 10 (9th Cir. 1975). It is “such relevant evidence as a reasonable mind might accept as adequate to 7 1 support a conclusion.” Richardson, 402 U.S. at 401. The record as a whole must be considered, 2 weighing both the evidence that supports and the evidence that detracts from the Commissioner’s 3 decision. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the evidence and making 4 findings, the Commissioner must apply the proper legal standards. See, e.g., Burkhart v. Bowen, 856 5 F.2d 1335, 1338 (9th Cir. 1988). The Court must uphold the ALJ’s determination that the claimant is 6 not disabled if the ALJ applied the proper legal standards and the ALJ’s findings are supported by 7 substantial evidence. See Sanchez v. Secretary of Health and Human Services, 812 F.2d 509, 510 8 9 10 (9th Cir. 1987). “Where the evidence as a whole can support either outcome, we may not substitute our judgment for the ALJ’s.” Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985). 11 B. 12 To qualify for benefits, a claimant must establish that he or she is unable to engage in 13 14 Legal Standards substantial gainful activity because of a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 15 16 17 See 42 U.S.C. § 423(d)(2)(A); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). A claimant must demonstrate a physical or mental impairment of such severity that he or she is not only unable 18 to do his or her previous work, but cannot, considering age, education, and work experience, engage 19 in any other substantial gainful work existing in the national economy. Id. 20 21 To encourage uniformity in decision making, the Commissioner has promulgated regulations prescribing a five-step sequential process for evaluating an alleged disability. 20 C.F.R. §§ 22 404.1520; 416.920. The process requires consideration of the following questions: 23 24 25 26 27 28 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a “severe” impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant’s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. 8 1 Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. 2 4 Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 5 Lester v. Chater, 81 F.3d 821, 828 n. 5 (9th Cir. 1995). 3 6 If a claimant is found "disabled" or "not disabled" at any step, the remaining steps need not be 7 addressed. Tackett, 180 F.3d at 1098. 8 At steps one through four, the claimant bears the burden of proof, subject to the presumed 9 10 non-adversarial nature of Social Security hearings and the Commissioner's affirmative duty to assist 11 claimants in developing the record whether or not they are represented by counsel. Tackett, 180 12 F.3d at 1098 n. 3; Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996). If the first four steps are 13 14 adequately proven, the burden shifts to the Commissioner to prove at step five that considering the claimant's residual functional capacity, age, education, and work experience, he or she can perform 15 16 17 other work that is available in significant numbers. Tackett, 180 F.3d at 1098; Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998). The ALJ found that Plaintiff had not engaged in substantial gainful activity since the alleged 18 19 onset date of January 3, 2011. Her severe impairments were degenerative disc disease in the cervical 20 and lumbar spine, diabetes mellitus, and hypertension. None of these impairments alone or in any 21 combination met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, 22 Subpart P, Appx. 1 (§§ 416.920(d), 416.925, and 416.926). Plaintiff had the residual functional 23 24 capacity to perform medium work as defined in 20 C.F.R. § 416.967 (c), except that she could only 25 occasionally stoop, kneel, crouch, or crawl. Plaintiff was able to perform her past relevant work as a 26 demonstrator and teacher assistant. (Having resolved the case as step four, the ALJ did not reach 27 step five.) Accordingly, the ALJ concluded that Plaintiff was not disabled. 28 /// 9 1 2 C. Past Relevant Work as Demonstrator Plaintiff contends that, because her earnings as a supermarket demonstrator were minimal, 3 the ALJ erred in treating it as past relevant work. The Commissioner responds that even though 4 Plaintiff earned little in recent years, her earnings within the last fifteen years were sufficient to 5 support the ALJ's finding. 6 At step four, an ALJ must determine whether a claimant has the residual functional capacity 7 to perform his or her past relevant work in light of his or her residual functional capacity. 20 C.F.R. 8 9 § 416.920(f); Lewis v. Apfel, 236 F.3d 503, 515 (9th Cir. 2001). A claimant's prior work is past 10 relevant work "when it was done within the last 15 years, lasted long enough for [the claimant] to 11 learn to do it, and was substantial gainful activity." 20 C.F.R. § 416.965 (a). See also Andry v. 12 Colvin, 2013 WL 5305903 at *3 (E.D. Cal. Sept. 19, 2013) (No. 2:12-cv-00746-KJN) (holding that a 13 14 job constitutes past relevant work only if it was substantial gainful activity). "Substantial gainful activity is work activity that is both substantial and gainful." 20 C.F.R. § 15 16 17 416.972. "Substantial work activity is work activity that involves doing significant physical or mental activities. Your work may be substantial even if it is done on a part-time basis or if you do 18 less, get paid less, or have less responsibility than when you worked before." 20 C.F.R. § 19 416.972(a). ""Gainful work activity is work activity that you do for pay or profit. Work activity is 20 gainful if it is the kind of work usually done for pay or profit, whether or not a profit is realized." 20 21 C.F.R. § 416.972(b). 22 The "primary consideration" in determining whether work is substantial gainful activity is the 23 24 earnings from that work. 20 C.F.R. § 416.974(a)(1). A claimant's earnings are "a presumptive, but 25 not conclusive, sign of whether a job is substantial gainful activity." Lewis, 236 F.3d at 515. Each 26 year, the Social Security Administration determines the minimum monthly amount that a claimant 27 must earn for his or her job to constitute substantial gainful activity ("substantial gainful activity 28 amount"). www.socialsecurity.gov/ACT/COLA/sga.html (May 26, 2015). A claimant's earning less 10 1 2 than monthly substantial gainful activity amount gives rise to a presumption that he or she has not engaged in substantial gainful activity. Lewis, 236 F.3d at 515. If the presumption applies, the burden of proof at step four shifts from the claimant to the 3 4 Commissioner. Lewis, 236 F.3d at 515. The claimant is deemed to have carried his or her burden 5 unless the Commissioner determines that the claimant has nonetheless engaged in substantial gainful 6 activity based on substantial evidence. Id. Five factors are relevant in an ALJ's determination of 7 substantial gainful activity despite low earnings: (1) the nature of the claimant's work; (2) how well 8 9 the claimant performs to work; (3) if the work is performed under special conditions; (4) if the 10 claimant is self-employed; and (5) the amount of time the claimant spends at work. 20 C.F.R. § 11 416.973. If the ALJ fails to identify any particular evidentiary or testimonial evidence to support the 12 conclusion of substantial gainful activity despite earnings below the presumptive amount, the 13 14 conclusion is not supported by substantial evidence and the district court must reverse. Eksund v. Astrue, 343 Fed.Appx. 228, 229 (9th Cir. 2009); Aguirre v. Colvin, 2013 WL 4718334 at *6 (C.D. 15 16 Cal. Sept. 3, 2013) (No. EDCV 12-01378-MAN). In her work history report, Plaintiff indicated that from 1990-2010, she worked as a 17 18 demonstrator once weekly for four hours. See AR 157-AR 158. During that twenty-year period, 19 Plaintiff also worked as a telemarketer (1984-1996), an insurance salesperson (1992-1995), and a 20 teacher's assistant (1997-2000). As a result of her on-the-job injury, Plaintiff did not work from 21 February 2000 until 2003. 22 According to the Commissioner's own report, prepared to determine whether Plaintiff had 23 24 been employed for sufficient quarters to qualify for disability insurance benefits, the average 25 monthly amount of Plaintiff's annual income exceeded the substantial gainful earnings amount in 26 only three times in those 20 years: 1993,5 1997, 1998, and 1999. The three years within the fifteen- 27 year look-back period (1997, 1998, and 1999) were the only full years in which she also worked as a 28 5 In 1993, Plaintiff worked three jobs: insurance salesperson, telemarketer, and demonstrator. 11 1 2 3 teacher's assistant in special education programs for the Los Angeles County schools (before she was injured in February 2000). The Commissioner concedes that from 2003 through 2010, when Plaintiff only worked as a 4 demonstrator, her income never reached the substantial gainful earnings amount. But the 5 Commissioner argues that, by failing to provide evidence of her earnings as a demonstrator in 1997, 6 1998, and 1999, Plaintiff failed to meet her burden of proving that her earnings as a demonstrator in 7 that three-year time period. 8 9 Although Plaintiff's income for 1997, 1998, and 1999 establishes a presumption that she 10 engaged in substantial gainful activity during those years, the regulatory provisions are merely 11 guidelines and "do not relieve an ALJ of the duty to develop the record fully and fairly." Corrao v. 12 Shalala, 20 F.3d 943, 948 (9th Cir. 1994) (quoting Dotson v. Shalala, 1 F.3d 571, 576 (7th Cir. 13 1993)). See also Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001) ("Although the burden of 14 proof lies with the claimant at step four, the ALJ still has a duty to make the requisite factual 15 16 17 18 19 20 21 findings to support his conclusion"); Lewin v. Schweiker, 654 F.2d 631, 634-35 (9th Cir. 1981) (holding that the hearing decision must include a statement of the facts on which the ALJ's conclusion is based so that a reviewing court may understand the decision's basis). "Earnings can be a presumptive, but not conclusive, sign of whether a job is substantial gainful activity." Lewis, 236 F.3d at 515. The ALJ must address both the claimant's earnings and the remaining factors set forth in 20 C.F.R. § 416.973. Corrao, 20 F.3d at 948. In particular, the 22 Court notes the limited nature of Plaintiff's employment as a demonstrator—only four hours 23 24 weekly—and the absence of any evidence regarding the existence of such a position for sufficient 25 hours to constitute substantial gainful activity. See, e.g., Clester v. Apfel, 70 F.Supp.2d 985, 991-92 26 (S.D. Iowa 1999) (finding that substantial evidence did not support a conclusion that claimant's work 27 delivering newspapers met the definition of substantial gainful activity). 28 12 1 The Court rejects the Commissioner's assignment to Plaintiff of the burden of producing 2 evidence breaking down her earnings for 1997, 1998, and 1999, when the inclusion of detailed 3 income information in the disability insurance analysis suggest that that the Social Security 4 Administration had ready access to the necessary evidence. The ALJ has an independent "duty to 5 fully and fairly develop the record and to assure that the claimant's interests are considered." 6 7 Widmark v. Barnhart, 454 F.3d 1063, 1068 (9th Cir. 2006) (quoting Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983)). Satisfying the duty to develop the record is critical when the evidence is 8 9 ambiguous or inadequate to allow for its proper evaluation. Mayes v. Massanari, 276 F.3d 453, 459- 10 60 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). The duty to develop 11 the record fully and fairly includes developing the evidence needed to evaluate the claimant's 12 earnings against the guidelines. See Milton v. Schweiker, 669 F.2d 554, 556 (8th Cir. 1982). 13 14 Having failed to analyze fully whether Plaintiff's employment as a demonstrator constituted substantial gainful activity in 1997, 1998, or 1998, the Commissioner's post hoc rationalization 15 16 17 cannot prevail. In the absence of any evidence or analysis of Plaintiff's earnings as a demonstrator in 1997, 1998, and 1999, the Court cannot conclude that the ALJ's determination was supported by 18 substantial evidence. Accordingly, the Court will remand the case for consideration of whether 19 Plaintiff's 1997, 1998, and 1999 work as a supermarket demonstrator satisfied the regulatory 20 requirements for substantial gainful activity. (Plaintiff does not address the question of whether her 21 1997, 1998, and 1999 work as a teacher's aide satisfied the regulatory requirements for substantial 22 gainful activity. In the course of attributing Plaintiff's income to the two jobs at which she worked in 23 24 25 those years, the ALJ is also directed to consider whether Plaintiff's work as a teacher's aide was substantial gainful activity.) 26 D. 27 Plaintiff contends that since Plaintiff's work as a teacher assistant included no clerical duties, 28 Incorrect Occupational Identification the ALJ erred in accepting the vocational expert's identification of her past work as Teacher Aide, 13 1 Clerical (DOT No. 249.367-074) and in concluding that Plaintiff could therefore perform her prior 2 work as generally performed. The Commissioner responds that the ALJ properly relied on the 3 vocational expert's testimony. 4 The vocational expert identified Plaintiff's prior work as Teacher Aide II, defined as follows: 5 Performs any combination of the following duties in classroom to assist teaching staff of public or private elementary or secondary school: Takes attendance. Grades homework and tests, using answer sheets, and records results. Distributes teaching materials to students, such as textbooks, workbooks, or paper and pencils. Maintains order within school and on school grounds. Operates learning aids, such as film and slide projectors and tape recorders. Prepares requisitions for library materials and stockroom supplies. Types material and operates duplicating equipment to reproduce instructional materials. 6 7 8 9 10 Although the DOT categorizes Teacher Aide, Clerical (DOT No. 249.367-074) as light work, 11 12 13 the vocational expert testified that Plaintiff performed the position as heavy work. The hearing decision adopted the vocational expert's categorization and concluded that Plaintiff had the residual 14 functional capacity to continue it as light work, the exertional level at which it is typically 15 performed. The exertional level of Teacher Aide II is not its only difference from the work that 16 Plaintiff performed for the school district, however; Plaintiff's work included little or no clerical 17 work, consisting of physical assistance of children unable to function independently, such as 18 personal care, transferring a student to a walker, or lifting a 75-pound student on and off the bus. 19 20 21 The hearing decision articulated no basis for the disparity between Plaintiff's prior work and the DOT description: the ALJ never questioned the vocational expert in that regard. 22 When occupational evidence presented by a vocational expert is inconsistent with the DOT, 23 the ALJ must question the expert for a reasonable explanation for the disparity. Lee v. Astrue, 2010 24 WL 653980 (E.D.Cal. Feb. 19, 2010) (No. 1:08-cv-01505-GSA). If the ALJ fails to explore the 25 disparity and the reasoning behind it, the Court is unable to determine whether substantial evidence 26 supports the ALJ's finding. Id. 27 28 /// 14 1 2 3 4 5 6 7 8 9 10 The ALJ has the duty to set forth the underlying factual findings to support his conclusion at step four. Pinto, 249 F.3d at 844. The court explained: This is done by looking at the "residual functional capacity and the physical and mental demands" of the claimant's past work. 20 C.F.R. §§ 404.1520(e) and 416.920(e). The claimant must be able to perform: 1. The actual functional demands and job duties of a particular past relevant job; or 2. The functional demands and job duties of the occupation as generally required by employers throughout the national economy. SSR 82-61. This requires specific findings as to the claimant's residual functional capacity, the physical and mental demands of the past relevant work, and the relation of the residual functional capacity to the past work. SSR 82-62. Pinto, 249 F.3d at 844-45. In this case, the vocational expert and the ALJ considered only the exertional differences 11 12 13 between the listing and Plaintiff's prior work, but disregarded the complete dissimilarity of the tasks to be performed. Particularly because the record includes no evidence of Plaintiff' having performed 14 any prior clerical work, this error requires the Court to reverse the Commissioner's determination 15 and remand for further proceedings. 16 17 The Court takes judicial notice of another DOT listing, Child Care Attendant, School (DOT No. 355.674-010), which appears to contemplate the type of work that Plaintiff actually performed: 18 19 20 21 22 Attends to personal needs of handicapped children while in school to receive specialized academic and physical training: Wheels handicapped children to classes, lunchrooms, treatment rooms, and other areas of building. Secures children in equipment, such as chairs, slings, or stretchers, and places or hoists children into baths or pools. Monitors children using life support equipment to detect indications of malfunctioning of equipment and calls for medical assistance when needed. Helps children to walk, board buses, put on prosthetic appliances, eat, dress, bathe, and perform other physical activities as their needs require. 23 24 As part of his re-analysis of step four (and step five, if needed), the ALJ shall secure the 25 supplemental testimony of a vocational expert regarding the propriety of characterizing 26 Plaintiff prior work as Teacher Aide, Clerical (DOT No. 249.367-074) as opposed to 27 Child Care Attendant, School (DOT No. 355.674-010), as well as any other appropriate 28 job classification as the vocational expert may identify. 15 E. 1 Harmless Error Because the hearing decision did not address step five, the errors at step four were 2 3 not harmless. 4 IV. 5 6 Conclusion and Order The Court hereby REVERSES the Commissioner's denial of disability benefits to Plaintiff and REMANDS this case for further proceedings as outlined above. The Clerk of Court is directed 7 to enter judgment for the Plaintiff. 8 9 10 11 12 IT IS SO ORDERED. Dated: June 4, 2015 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16

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