Opinion
No. ED CV 10-00864-VBK.
February 28, 2011
MEMORANDUM OPINION AND ORDER (Social Security Case)
This matter is before the Court for review of the decision by the Commissioner of Social Security denying Plaintiff's application for disability benefits. Pursuant to 28 U.S.C. § 636(c), the parties have consented that the case may be handled by the Magistrate Judge. The action arises under 42 U.S.C. § 405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the Administrative Record ("AR") before the Commissioner. The parties have filed the Joint Stipulation ("JS"), and the Commissioner has filed the certified AR.
Plaintiff raises the following issues:
1. Whether the Administrative Law Judge ("ALJ") properly complied with the order of the Appeal Council; and
2. Whether there is a DOT inconsistency in the ALJ's holding that Plaintiff can perform the jobs of kitchen helper, packager and cleaner.
(JS at 3.)
This Memorandum Opinion will constitute the Court's findings of fact and conclusions of law. After reviewing the matter, the Court concludes that for the reasons set forth, the decision of the Commissioner must be reversed.
I THE ISSUE OF WHETHER THE ALJ COMPLIED WITH THE ORDER OF REMAND OF THE APPEALS COUNCIL IS NOT WITHIN THE JURISDICTION OF THIS COURT. ALTERNATIVELY, THE ALJ DID NOT FAIL TO DEVELOP THE RECORD.Plaintiff contends in her first issue that the ALJ did not properly comply with the Order of the Appeals Council remanding the case to the Administrative Law Judge. (JS at 3, et seq., citing AR 105-106.)
Following issuance of a decision by the ALJ on August 18, 2008, the Appeals Council issued an Order remanding the case to the ALJ for further hearing. The Appeals Council ordered that upon remand, the Administrative Law Judge will, among other things, do the following:
"Obtain additional evidence concerning the [Plaintiff's] mood disorder/depression in order to complete the administrative record in accordance with the regulatory standards regarding consultative examinations and existing medical evidence (20 CFR 404.1512-1513). The additional evidence should include updated treatment records from Dr. Nakai and Patricia Jennings, the treating marriage and family therapist, and updated records from Dr. Pham. The additional evidence may include, if warranted and available, a consultative mental status examination with psychological testing and medical source statements about what the [Plaintiff] can still do despite the impairments."
(AR 105-106.)
Plaintiff specifically complains that the ALJ failed to obtain additional updated treatment records from Dr. Nakai and Patricia Jennings, the treating marriage and family therapist, and updated records from Dr. Pham.
In his decision following the remand directive from the Appeals Council (AR 8-17), the ALJ cited and relied upon a report that had been obtained following the Appeals Council Order by Dr. Bagner, on September 13, 2009. (AR 580-583.) Dr. Bagner had performed a complete psychiatric evaluation on that date at the request of the Department of Social Services. The ALJ adopted Dr. Bagner's findings as "generally consistent with the residual functional capacity found herein." (AR 14.)
Following this decision, Plaintiff requested review by the Appeals Council (AR 4), which on April 22, 2010 denied review (AR 1-3.)
As framed, Plaintiff's issue is not justiciable by this Court. When the Appeals Council denied Plaintiff's request for review of the ALJ's decision, that decision became the final decision of the Commissioner, subject to judicial review. See 42 U.S.C. § 405(g). Federal courts have jurisdiction only to review final decisions of administrative agencies. Thus, when the Appeals Council denied review of the ALJ's second decision, and made that decision final, by doing so it declined to find that the ALJ had not complied with its remand instructions. See Tyler v. Astrue, 3005 Fed.Appx. 331 (9th Cir. 2008); Thompson v. Astrue, 2010 WL 2991488 (C.D. Cal. 2010).
If Plaintiff's claim is construed as an argument that the ALJ failed to develop the record, it still fails. As noted, the ALJ did obtain a complete consultative psychiatric evaluation following remand. Consequently, there was no failure to develop evidence regarding Plaintiff's mental impairment.
Plaintiff's first issue is therefore deemed without merit.
II THIS CASE MUST BE REMANDED FOR FURTHER HEARING TO ADDRESS AN INCONSISTENCY BETWEEN THE JOBS IDENTIFIED AT STEP FIVE OF THE SEQUENTIAL EVALUATION PROCESS AND PLAINTIFF'S RESIDUAL FUNCTIONAL CAPACITYA vocational expert ("VE") testified at the second hearing, which occurred on February 2, 2010. (AR 20-44.) The ALJ posed a hypothetical question to the VE which incorporated certain functional limitations assessed by Dr. To, who performed an independent internal medicine evaluation at the request of the Department of Social Services on August 15, 2009. (AR 574-579.) One of those functional restrictions, which the ALJ incorporated in the hypothetical question, contained a restriction from working with "heavy and moving machineries." (See also AR 13, note 5.) Considering this hypothetical, the VE identified three jobs which Plaintiff could perform: cook's helper; hand packager; and industrial cleaner. (AR 43.) As Plaintiff points out, and the Commissioner does not dispute, each of these jobs are identified by Dictionary of Occupational Titles ("DOT") codes which contain job descriptions, and each of these job descriptions involves working with machinery which might be construed as heavy and/or moving machinery. For example, the cook's helper job (DOT Code 317.687-010) entails "clean[ing], cut[ting]; and grind[ing] meats, poultry and seafood." The second job, hand packager (DOT Code 920.587-018), entails the following: "starts, stops, and regulates speed of conveyer." Finally, the third job, that of industrial cleaner (DOT Code 381.687-018), might require a worker to clean conveyers, pick up refuse by cutting grass or shoveling snow, operate an industrial truck to transport materials within a plant, start pumps to force cleaning solution through machinery, and start pumps to lubricate machines.
Plaintiff cites the Ninth Circuit case of Pinto v. Massanari, 249 F.3d 847 (9th Cir. 2001) for its holding that in order for an ALJ rely on job description in the Dictionary of Occupational Titles that fails to comport with a claimant's noted limitation, the ALJ must definitively explain this deviation. Further, Plaintiff argues that under Ninth Circuit precedent, an ALJ "may rely on expert testimony which contradicts the DOT, but only insofar as the record contains persuasive evidence to support the deviation." (JS at 14, citing Light v. Social Security Administration, 119 F.3d 1428, 1435.
The Commissioner puts forth a two-part argument. First, that there is no deviation between the identified jobs and Plaintiff's residual functional capacity ("RFC"), because the DOT only lists the maximum requirements of jobs as generally performed, not the range of requirements of a particular job as performed in specific settings. (JS at 17, citing Social Security Ruling ("SSR") 00-4p.) Second, Plaintiff argues that the job descriptions contained in the DOT do not entail the use of dangerous equipment, or, specifically, heavy and moving machinery. For the following reasons, the Court rejects both of these contentions.
First, as to the issue of deviation from the DOT descriptions, the Ninth Circuit's decision in Massachi v. Astrue, 486 F.3d 1149 (9th Cir. 2007) addressed this issue in the context of interpreting SSR 00-4p. As Massachi makes clear, SSR 00-4p provides unambiguous guidance which requires the adjudicator to discharge an affirmative responsibility to ask about any possible conflict between VE evidence and information provided in the DOT. (Id. at 1152.) As Massachi noted, these procedural requirements "ensure that the record is clear as to why an ALJ relied on a vocational expert's testimony, particularly in cases where the expert's testimony conflicts with the [DOT]." (Id. at 1153.) The DOT descriptions of each of the three identified jobs in this case clearly entail the use of heavy and/or moving machinery, such as conveyer belts, pumps, grinders, and the like. The Commissioner's argument that the use of such machinery is only a maximum requirement of a job as it is generally performed, is a question which should have been submitted to the VE. The Commissioner does not have the expertise of a vocational expert, and thus cannot provide such evidence. That is the point of the opinion in Massachi. There is a possible deviation here between the job requirements and Plaintiff's RFC, and that must be explained by expert testimony. At the second hearing, the ALJ did not ask the VE whether there was or might be a variance between the identified jobs in the DOT and the functional limitations set forth in the hypothetical question. This has created a gap in the evidence which cannot be filled by speculation. Further, the Commissioner's interpretation of Plaintiff's argument is incorrect. She does not argue that the issue is whether she can operate what the Commissioner calls "dangerous equipment." Rather, Plaintiff sticks to the RFC as defined by the ALJ which precludes her from operating heavy and moving machinery. These questions must be resolved on remand by expert testimony.
For the foregoing reasons, this matter is remanded for further hearing consistent with this Memorandum Opinion.
IT IS SO ORDERED.
DATED: February 28, 2011