Dennis v. Commissioner Social Security Administration
Filing
37
AMENDED OPINION AND ORDER. For the reasons set forth above, plaintiff's Motion to Alter or Amend the Judgment (#34) is GRANTED as to the VE's failure to identify jobs by DOT title and to establish the number of those jobs in existen ce. Accordingly, the Commissioner's decision is AFFIRMED in part, and REVERSED as to the Step Five findings, and REMANDED for the limited purpose of obtaining VE testimony concerning the specific job titles by DOT code and the number of those jobs in existence in response to the ALJ's hypothetical questions. IT IS SO ORDERED. Signed on 04/20/2012 by Judge Malcolm F. Marsh. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
GARY DENNIS,
Case No. 3:10-cv-01251-MA
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social
Security,
Defendant.
BRUCE W. BREWER
Attorney at Law
419 Fifth Street
Oregon City, Oregon 97045
Attorney for Plaintiff
S. AMANDA MARSHALL
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97204
LEISA A. WOLF
Special Assistant United States Attorney
Office of the General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900 MiS 221A
Seattle, Washington 98104
Attorneys for Defendant
1 - AMENDED OPINION AND ORDER
AMENDED OPINION AND ORDER
MARSH, Judge:
On March 6,
2012,
this Court issued an Opinion and Order
(#32), affirming the final decision of the Commissioner of Social
Security denying plaintiff Gary Dennis' applications for benefits
and
dismissing
plaintiff's
case.
Plaintiff
now
moves
for
reconsideration of that Opinion pursuant to Fed. R. Civ. P. 59(e).
For
the
reasons
set
forth
below,
plaintiff's
motion
for
reconsideration is GRANTED.
BACKGROUND
Born on April 8, 1971, plaintiff filed his first applications
for supplemental security income
(SSI)
and disability insurance
benefits (DIB) in November 1996, alleging disability as of January
1, 1991.
On May 13, 2004, at his third hearing, plaintiff amended
his alleged onset date to June 15, 1995, and asserted disability
due to anxiety, borderline intellectual functioning, hepatitis C,
attention deficit hyperactivity disorder,
personality disorder,
and tendonitis.
seizures,
depression,
As detailed in the Opinion,
plaintiff's case has a lengthy procedural history including remand
orders from the Appeals Council and this court.
The current proceeding involves plaintiff's appeal from the
ALJ's
fourth
unfavorable
decision.
decision directly to this Court.
Plaintiff
appealed
In his complaint,
that
plaintiff
alleged that the ALJ erred by: 1) determining that his substance
abuse was material; 2)
finding that his impairments did not meet
2 - AMENDED OPINION AND ORDER
listing
12.05C;
3)
improperly
rejecting
lay
testimony;
4)
inadequately evaluating a physician's opinion; 5) concluding that
plaintiff had past relevant work;
and 6)
applying the Medical-
vocational Guidelines (the "Grids") at Step Five.
In my March 6,
2012 Opinion, as is relevant here, I concluded that even if the ALJ
erred in finding that plaintiff could perform past relevant work or
the
ALJ
harmless
erroneously
because
the
relied
upon
ALJ made
the
Grids,
alternative
such
Step
errors
Five
were
findings
supported by VE testimony.
DISCUSSION
Reconsideration
under
Rule
59 (e)
"should not
be
granted,
absent highly unusual circumstances, unless the district court is
presented with newly discovered evidence, committed clear error, or
if
there
is
McDowell v.
an
intervening
Calderon,
change
197 F.3d 1253,
banc), cert. denied, 529
u.S.
in
the
1255
controlling
(9th Cir.
law."
1999)
(en
1082 (2000).
In his motion to reconsider, plaintiff argues that this Court
committed clear error in two ways: 1) by not finding that the ALJ
erroneously utilized the Grids at step five; and 2) by relying on
the VE testimony at Step Five where the VE testimony does not
identify jobs by specific DOT title or
incidence.
plaintiff submits that based on my findings,
Therefore,
the ALJ's decision
must be reversed and remanded and my Opinion and Order and Judgment
must be corrected accordingly.
3 - AMENDED OPINION AND ORDER
In response, the Commissioner contends that this case should
be resolved at Step Four because plaintiff can perform his past
relevant work.
noted
that
I disagree.
plaintiff
In my previous Opinion and Order, I
raised a
concern
about
whether
relevant work constituted substantial gainful activity.
his
past
I adhere
to my previous opinion on that point.
Plaintiff first asserts that the Court committed clear error
because "the ALJ did, in fact,
the claim."
Id.
at
3-4.
[improperly] use the [G]rids to deny
As I
discussed in the Opinion,
the
Commissioner can meet his step five burden by applying the Grids or
taking the testimony of aVE.
1340
1111,
(9th Cir.
1114
1988); see also Lounsburry v.
(9th
inapplicable
Burkhart v. Bowen, 856 F.2d 1335,
when
Cir.
2006) .
a
claimant's
I
noted
Barnhart,
that
nonexertional
the
468 F.3d
Grids
limitations
"are
are
'sufficiently severe' as to significantly limit the range of work
permi tted by the claimant's exertional limitations."
Astrue, 499 F.3d 1071, 1075 (9th Cir. 2007).
Hoopai v.
In such instances,
the Commissioner must take the testimony of a VE and identify
specific
jobs
limitations.
As I
that
the
claimant
can
perform
despite
his
Burkhart, 856 F.2d at 1340.
noted at page 19 of the Opinion,
plaintiff has non-
exertional limitations in the areas of concentration and social
functioning.
Therefore, to the extent that the ALJ relied on the
Grids, I found that the ALJ erred.
4 - AMENDED OPINION AND ORDER
Continuing,
I discussed that
because the ALJ made alternative Step Five findings, his reliance
on the Grids was harmless.
Plaintiff now contends that the ALJ's reliance on the VE's
testimony is misplaced because the VE did not identify any jobs by
DOT
code
or
establish
the
specific
number
existence in the local and national economies.
of
those
jobs
in
Plaintiff contends
that because the ALJ's Step Five findings are not supported by
substantial evidence in the record,
I erred in failing to remand
Although plaintiff did not present this specific issue
this case.
in his earlier briefing, a closer examination of the VE's testimony
demonstrates that plaintiff is correct.
Here, the ALJ determined that, absent plaintiff's substance
abuse,
he has the RFC to perform medium exertion work, involving
simple, routine, repetitive tasks and minimal public contact.
1046.)
At the most recent hearing,
(Tr.
the ALJ posed the following
hypothetical to the VE:
[a]ssume an individual of similar age, education, work
experience as the claimant. Assume that this individual
would be [capable to] work at the medium exertion
level[.]
And this individual would be restricted to
simple work, nothing complex, no skilled work[.]
And
they should have minimal interaction with the public.
Assuming that hypothetical, would there be work such an
individual could perform which exists in the national
economy?
(Tr. 1416.)
The
VE
responded
in
two
parts,
first
concerning
whether
plaintiff could perform his past relevant work, and second, whether
5 - AMENDED OPINION AND ORDER
other jobs existed that plaintiff could perform.
The VE stated
that the hypothetical individual could perform some work "from the
relevant
grinder
work history period,"
and
kitchen
helper.
such as
(Tr.
hopper
1416.)
feeder,
The
VE
casting
previously
identified these jobs as having DOT codes of 699.686-010, 705.684074,
and 318.687-010,
respectively.
The VE also stated that in
addition, there would be a "substantial number of other unskilled
medium and light jobs that could be performed.
(Id.)
However,
those additional jobs were not identified by DOT title or incidence
in the national or regional economy.
The ALJ then added to the hypothetical that the individual
would need to have minimal interactions with co-workers.
responding in two parts,
the VE testified that the position of
kitchen helper would be eliminated,
casting grinder would
testified that "[a] t
still
be
but that hopper feeder and
appropriate.
Further,
least 50 percent of the unskilled,
[exertion jobs]" and a
Again,
"substantial number of light,
the
VE
medium
unskilled
jobs" in existence in the national economy also could be performed,
even with the additional restriction.
(Tr. 1417.)
Again, however,
the VE did not identify specific jobs by DOT title or incidence.
As I stated in the Opinion,
the ALJ expressly adopted the VE's
testimony in his alternative findings at Step Five.
As this further inquiry reveals, although the VE identified a
substantial
number
of
unskilled
6 - AMENDED OPINION AND ORDER
light
and
medium
jobs
that
plaintiff could perform,
it is clear that the ALJ's failure to
positively identify such jobs by DOT title and incidence renders
his Step Five finding unsupported by substantial evidence.
C.F.R. § 1560(c) (2).
20
Therefore, it is clear that the ALJ has erred
at Step Five, that the error is not harmless, and the matter must
be
remanded
Commissioner,
to
obtain
Soc.
such
evidence.
Sec.
Admin.,
533
See
F.3d 1155,
Carmickle
1167
v.
(9th Cir.
2008) (remanding case where ALJ erroneously relied upon VE's generic
classifications without DOT numbers).
It is unfortunate that the
information was neither solicited nor provided at the May 20, 2010
hearing.
Moreover, I question the utility of plaintiff's motion
given the very limited scope of the remand necessitated by this
order.
However, as plaintiff correctly states, a remand to obtain
such evidence is necessary and I erred in failing to so order in my
earlier Opinion.
As such,
plaintiff's motion is granted.
Accordingly,
this
case is remanded for the limited purpose of obtaining VE testimony
in
response
to
the
ALJ's
hypothetical
questions,
including
identifying specific jobs by DOT title that plaintiff can perform,
and
their
incidence
in
the
national
and
regional
or
local
economies.
I
note that in my earlier Opinion,
I
found no error with
plaintiff's RFC and concluded that the ALJ's hypothetical questions
properly
incorporated
plaintiff's
7 - AMENDED OPINION AND ORDER
RFC
and
other
limitations.
Further,
plaintiff
does
not
challenge
the
RFC
findings
on
reconsideration and I adhere to my previous Opinion in all other
respects.
CONCLUSION
For the reasons set forth above, plaintiff's Motion to Alter
or Amend the Judgment (#34) is GRANTED as to the VE's failure to
identify jobs by DOT title and to establish the number of those
jobs in existence.
Accordingly, the Commissioner's decision AFFIRMED in part, and
REVERSED as to the Step Five findings, and REMANDED for the limited
purpose of obtaining VE
testimony concerning
the
specific
job
titles by DOT code and the number of those jobs in existence in
response to the ALJ's hypothetical questions.
IT IS SO ORDERED.
DATED this ~ day of April, 2012.
·L2t~ ~44-e#(
Malcolm F. Marsh
United States District Judge
8 - AMENDED OPINION AND ORDER
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