Carrillo-Castro v. Astrue

Filing 23

ORDER by Magistrate Judge Bernard Zimmerman granting in part and denying in part 18 Motion for Summary Judgment (bzsec, COURT STAFF) (Filed on 4/5/2011)

Carrillo-Castro v. Astrue

Doc. 23

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The parties have consented to the Court's jurisdiction for all proceedings, including entry of final judgment under 28 U.S.C. § 636(c). Because the Appeals Council denied review, the decision of the ALJ becomes the decision of the Commissioner for purposes of review. 1
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

MARTHA CARRILLO-CASTRO, Plaintiff(s), v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant(s).

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No. C10-0460 BZ ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

Plaintiff Martha Carrillo-Castro appeals from a final decision by the Commissioner of Social Security (Commissioner) denying review of the Administrative Law Judge's (ALJ) decision.1 The ALJ found that plaintiff was not eligible for

disability benefits because she was capable of performing past relevant work as a clothes marker and waitress.2

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Administrative Record (AR.) 29.

In her motion for summary

judgment, plaintiff asks the Court to reverse the decision of the Commissioner and order the payment of benefits. In the

alternative, she asks the Court to remand for the correction of legal errors. summary judgment. Plaintiff filed an application for disability insurance benefits alleging disability due to problems with her back, right arm, wrists, and hands with an onset date of June 20, 2006. The ALJ concluded that plaintiff retained the residual Defendant has filed a cross-motion for

functional capacity to perform light work, except that she was limited to occasional reaching overhead with the right arm, occasional crawling, and occasional pushing and pulling with the right arm. AR. 28.

Following the standard five-step process for evaluating plaintiff's claim,3 the ALJ first found that plaintiff had not performed substantial gainful activity since the onset date. AR. 27. At step 2, the ALJ found that plaintiff suffered from

a right shoulder injury, degenerative disc disease to the lumbar and cervical spine areas, right thumb tenosynotis, and right elbow tenosynopathy. Id. At step 3, the ALJ found that

plaintiff's impairments did not meet or equal any impairment set out in the Listing of Impairments.4
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AR. 28.

At step 4,

20 C.F.R. § 404.1520

25 26 27 28 The Commissioner has acknowledged that certain impairments are so severe that they preclude substantial gainful activity. These impairments are set out in the Listing of Impairments, 20 C.F.R. Part 404, Subpt. P, App. 1. A claimant whose impairment or combination of impairments meet or equal the "Listings" is presumptively disabled. 2
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the ALJ found plaintiff capable of performing past relevant work as a clothes marker and waitress, and therefore not disabled within the meaning of the Social Security Act. 29. The Commissioner's decision to deny benefits will be disturbed only if it is not supported by substantial evidence or is based on legal error. 42 U.S.C. § 405(g); Batson v. AR.

Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001). "Substantial evidence" means "more than a scintilla, but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, "Where the evidence is susceptible

1214 n.1 (9th Cir. 2005).

to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." 2002). Plaintiff's Language Skills Plaintiff first contends that the ALJ erred in his findings at step 4 because she does not possess the necessary English language and literacy skills to perform her past work as generally performed. She further argues that the ALJ had a Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.

duty to make requisite factual findings, such as establishing whether plaintiff was literate, to support his conclusion. Plaintiff's reliance on Pinto v. Massanari in support of her position is misplaced. 249 F.3d 840 (9th Cir. 2001). The

ALJ in Pinto made an affirmative finding that the claimant was illiterate in English. Id. at 843. The ALJ, however, did not

explain how this limitation related to the finding that the 3

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claimant could not perform past relevant work.

Id. at 846-47.

While the District Court affirmed the ALJ's decision, the Ninth Circuit remanded for several reasons, including the ALJ's failure to explain how his specific finding regarding claimant's language skills factored into her disability determination. Id. at 846-48. The Ninth Circuit never held

that the ALJ was required to consider claimant's language skills as part of step 4.5 In Perez v. Astrue, the Ninth Circuit was presented with an argument based on Pinto similar to what plaintiff now makes. 247 Fed.Appx. 931 (9th Cir. 2007). The Ninth Circuit

held that Pinto did not apply because the ALJ did not make an affirmative finding of illiteracy and claimant's inability to speak English was tangential to her disability claim for pain and depression. Id. at *2. The same is true for this matter.

Unlike Pinto and similar to Perez, the ALJ in plaintiff's case never made a specific finding regarding her literacy. Rather,

the ALJ focused on plaintiff's alleged claims for disabilities which were physical in nature. Thus, I find that the ALJ did

not commit error by not considering plaintiff's claimed inability to speak English at step 4 of the proceeding. Plaintiff's motion for summary judgment on this ground is DENIED. /// Pinto explained that it is "unclear whether the ALJ should have considered Pinto's language skills at all at step four, given that Pinto's difficulties with language are independent of the disability upon which she bases her claim." 249 F.3d at 847, fn. 5. This is true for plaintiff's claim as well. 4
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Plaintiff's Physical Limitations The ALJ found plaintiff capable of performing light work restricted to "occasional crawling, occasional right overhead reaching, and occasional pushing pulling with the right dominate arm." AR. 28. The ALJ also found, based in part on

vocational expert testimony, that plaintiff was capable of returning to past relevant jobs, even though the Dictionary of Occupational Titles (DOT) describes the occupations of clothes marker and waitress as both requiring "frequent reaching." See DOT §§ 209.587-034 and 311.477-018. It is the possible

conflict between the DOT's requirement of "frequent reaching" and plaintiff's restriction to "occasional overhead reaching" that plaintiff now contests. Social Security Regulation (SSR) 00-4p regulates how an ALJ may use occupational evidence in a disability determination. See SSR 00-4p at 2-4. Under the regulation,

when a vocational expert testifies "about the requirements of a job or occupation, the adjudicator has an affirmative responsibility to ask about any possible conflict between" the vocational expert's testimony and the "information provided in the [DOT]." Id.; see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)(the ALJ may not rely on a vocational expert's testimony regarding the requirements of a particular job without first inquiring whether the testimony conflicts with the DOT). If the vocational expert's testimony is not

consistent with DOT, the ALJ must ask the expert if there is a reasonable explanation for the conflict. SSR 00-4p.

Here, as in Massachi, the ALJ failed to ask the 5

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vocational expert whether his testimony conflicted with the DOT and, if so, whether there was a reasonable explanation for the conflict. This is particularly troubling because there

may be conflict between the vocational expert's testimony that the plaintiff can perform a job which the DOT describes as requiring "frequent reaching." While it may be possible that

the "frequent reaching" described by the DOT does not require more than occasional overhead reaching, this cannot be determined because the ALJ failed to ask for testimony on possible conflicts. Thus, the Court cannot determine whether

the ALJ properly relied on the vocational expert's testimony. See Massachi, 486 F.3d at 1154; Hernandez v. Astrue, 2011 WL 223595 (C.D. Cal. 2011)(reversing and remanding where ALJ failed to reconcile expert testimony that plaintiff could perform a job that required "frequent reaching" when plaintiff was "precluded from work at or above shoulder level"). Accordingly, a remand for further administrative proceedings is appropriate. See Massachi, 486 F.3d at 1153 (vacating in

part with instructions to remand where "we have an apparent conflict with no basis for the vocational expert's deviation," and therefore the court "cannot determine whether the ALJ properly relied on [the expert's] testimony"). For the foregoing reasons, plaintiff's motion for summary judgement is GRANTED IN PART and DENIED IN PART; the matter is REMANDED to the Commissioner so that the ALJ can adhere to the requirements of SSR 00-4p and determine: (1) whether the DOT requirements for the jobs recommended by the vocational expert are consistent with plaintiff's limitations; and (2) whether 6

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there is a reasonable explanation for any inconsistencies between the vocational expert's testimony and the DOT. Defendant shall submit a proposed form of judgment forthwith. Dated: April 5, 2011 Bernard Zimmerman United States Magistrate Judge

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