Opinion
NO. ED CV 15-889-E
01-04-2016
VIRGINIA GUTIERREZ, Plaintiff, v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
MEMORANDUM OPINION AND ORDER OF REMAND
Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY ORDERED that Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion.
PROCEEDINGS
Plaintiff filed a complaint on May 6, 2015, seeking review of the Commissioner's denial of disability benefits. The parties filed a consent to proceed before a United States Magistrate Judge on July 13, 2015. Plaintiff filed a motion for summary judgment on November 6, 2015. Defendant filed a cross-motion for summary judgment on December 7, 2015. The Court has taken the motions under submission without oral argument. See L.R. 7-15; "Order," filed May 11, 2015.
BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
Plaintiff asserts disability since November 9, 2009, based on a combination of alleged impairments (Administrative Record ("A.R.") 65-84, 200-01, 206-07, 249). An Administrative Law Judge ("ALJ") found Plaintiff suffers from several severe "medically determinable impairments," including "severe left ear hearing loss with fluctuating hearing in the right ear" (A.R. 27). In defining Plaintiff's supposed residual functional capacity, however, the ALJ failed to include any hearing limitation (A.R. 29). Similarly, in framing hypothetical questions for the vocational expert, the ALJ failed to mention Plaintiff's severe hearing impairment (A.R. 91). In at least partial reliance on the vocational expert's testimony, the ALJ found that a person having Plaintiff's supposed residual functional capacity could perform all of Plaintiff's past relevant work (A.R. 32). The Appeals Council denied review (A.R. 1-5).
STANDARD OF REVIEW
Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); see also Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).
If the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ. But the Commissioner's decision cannot be affirmed simply by isolating a specific quantum of supporting evidence. Rather, a court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [administrative] conclusion.Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and quotations omitted).
DISCUSSION
As the ALJ expressly acknowledged, "[a]n impairment or combination of impairments is 'severe' within the meaning of the regulations if it significantly limits an individual's ability to perform basic work activities" (A.R. 26). See 20 C.F.R. § 404.1520(c); 20 C.F.R. § 416.920(c). Here, the ALJ erred by defining a residual functional capacity that failed to comprehend the necessarily significant work-related limitations caused by Plaintiff's severe hearing impairments. See, e,g. Spurling v. Commissioner, 2009 WL 1393369, at *12 (N.D. W. Va. May 14, 2009) (ALJ erred where "[t]he ALJ did not include any limitation in his RFC for Plaintiff's hearing loss even though he found it to be a severe impairment"). The ALJ similarly erred by failing to mention any hearing limitation in the hypothetical questions posed to the vocational expert. See DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991) (hypothetical question to the vocational expert must "set out all of the claimant's impairments"); accord Gamer v. Secretary, 815 F.2d 1275, 1280 (9th Cir. 1987); Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984).
At one point in the ALJ's decision, the ALJ appears to backtrack on the earlier finding of severe medically determinable hearing impairments (A.R. 30) ("the claimant has not provided evidence in the form of audiogram testing to establish the existence of a severe medically determinable hearing impairment"). To the extent that the ALJ's decision is inconsistent or ambiguous on the issue of whether Plaintiff has any significant hearing-related limitation, remand would be required to clarify the decision. See Regennitter v. Commissioner, 166 F.3d 1294, 1297 (9th Cir. 1999) (an ALJ's inaccurate characterization of the record, when material, warrants remand); Rodriguez v. Astrue, 2011 WL 1103119, at *9 (E.D. Cal. March 22, 2011) ("remand for further proceedings is proper due to the ambiguity of the ALJ's decision . . ."); Mingo v. Apfel, 1998 WL 373411, at *2 (D. Kan. July 1, 1998) (remand necessary where the Administration conceded the ALJ's findings were internally inconsistent).
Defendant appears to argue that any error was harmless, positing that Plaintiff's hearing limitations assertedly would not impact her past relevant work as a "customer service representative." This argument must be rejected. On the present record, substantial evidence does not support the conclusion Plaintiff could perform her work as a "customer service representative" notwithstanding her severe hearing impairments.
Although the claimant has the burden of proving an inability to perform his or her past relevant work, "the ALJ still has a duty to make the requisite factual findings to support his [or her] conclusion." Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001). The incompleteness of the hypothetical questions posed to the vocational expert in the present case prevents that expert's testimony from furnishing substantial evidence that Plaintiff can perform her past relevant work. See DeLorme v. Sullivan, 924 F.2d at 850; Gamer v. Secretary, 815 F.2d at 1280; Gallant v. Heckler, 753 F.2d at 1456. An ALJ need not always consult a vocational expert to help determine whether a claimant can perform the claimant's past relevant work. See Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993); Miller v. Heckler, 770 F.2d 845, 850 (9th Cir. 1985). However, "[t]o determine whether a claimant has the residual capacity to perform his [or her] past relevant work, the [Administration] must ascertain the demands of the claimant's former work and then compare the demands with his [or her] present capacity." Villa v. Heckler, 797 F.2d 794, 797-98 (9th Cir. 1986); see 20 C.F.R. § 404.1520(e).
In finding that an individual has the capacity to perform a past relevant job, the determination or decision must contain among the findings the following specific findings of fact:
1. A finding of fact as to the individual's RFC [residual functional capacity].
2. A finding of fact as to the physical and mental demands of the past job/occupation.
3. A finding of fact that the individual's RFC would permit a return to his or her past job or occupation. SSR 82-62 (emphasis added).See Dealmeida v. Bowen, 699 F. Supp. 806, 807 (N.D. Cal. 1988).
In making these findings, the ALJ must conduct a searching inquiry and analysis.
The decision as to whether the claimant retains the functional capacity to perform past work which has current relevance has far-reaching implications and must be developed and explained fully in the disability decision. Since this is an important and, in some instances, a controlling issue, every effort must be made to secure evidence that resolves the issue as clearly and explicitly as circumstances permit.
Reasonable inferences may be drawn, but presumptions, speculations and suppositions must not be used. SSR 82-62.
Evidence concerning the hearing-related demands of Plaintiff's past relevant work (including Plaintiff's past relevant work as a "customer service representative") is sparse or non-existent on the present record. The ALJ's failure to inquire further regarding these demands constituted error. See SSR 82-62; see also Burkhart v. Bowen, 856 F.2d 1335, 1341 (9th Cir. 1988) (Administration may not speculate concerning the requirements of particular jobs); Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983) ("the ALJ has a special duty to fully and fairly develop the record and to assure the claimant's interests are considered . . .").
The Court is unable to conclude that the above-discussed errors were harmless. See Treichler v. Commissioner, 775 F.3d 1090, 1105 (9th Cir. 2014) ("Where, as in this case, an ALJ makes a legal error, but the record is uncertain or ambiguous, the proper approach is to remand the case to the agency"); Garcia v. Commissioner, 768 F.3d 925, 932-34 (9th Cir. 2014) (a failure to develop the record is not harmless unless it is "clear from the record" that the error was "inconsequential to the ultimate nondisability determination"; citing Tommasetti v. Astrue, 533 F.3d 1035 (9th Cir. 2008)); see also McLeod v. Astrue, 640 F.3d 881, 887 (9th Cir. 2011) (error not harmless where "the reviewing court can determine from the 'circumstances of the case' that further administrative review is needed to determine whether there was prejudice from the error").
Remand is appropriate because the circumstances of this case suggest that further administrative review could remedy the ALJ's errors. McLeod v. Astrue, 640 F.3d at 888; see also INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an administrative determination, the proper course is remand for additional agency investigation or explanation, except in rare circumstances); Dominguez v. Colvin, 2015 WL 8600040, at *3 (9th Cir. Dec. 14, 2015) ("Unless the district court concludes that further administrative proceedings would serve no useful purpose, it may not remand with a direction to provide benefits"); Treichler v. Commissioner, 775 F.3d at 1101 n.5 (remand for further administrative proceedings is the proper remedy "in all but the rarest cases").
CONCLUSION
For all of the foregoing reasons, Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion.
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. "[E]valuation of the record as a whole creates serious doubt that [Plaintiff] is in fact disabled." See Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014). --------
LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: January 4, 2016.
/s/_________
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE