Opinion
NO. ED CV 15-1362-E
03-30-2016
LAKESHA S. HARRISON, 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 July 8, 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 August 28, 2015. Plaintiff filed a motion for summary judgment on January 8, 2016. Defendant filed a motion for summary judgment on March 10, 2016. The Court has taken the motions under submission without oral argument. See L.R. 7-15; "Order," filed July 14, 2015.
BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
Plaintiff, a former "cashier II," asserts disability since January 31, 2010, based on a combination of alleged physical and mental impairments (Administrative Record ("A.R.") 24-210, 217-769). An Administrative Law Judge ("ALJ") found Plaintiff has severe physical impairments that restrict Plaintiff to a limited range of light work not requiring more than occasional reaching above the shoulder bilaterally (A.R. 26-27).
A vocational expert testified that a person restricted to this limited range of light work could perform Plaintiff's past relevant work as a "cashier II; D.O.T. [Dictionary of Occupational Titles] code 211.462-010" (A.R. 57). The vocational expert also testified that a person with the residual functional capacity the ALJ found Plaintiff to retain also could perform the job of "counter clerk" (A.R. 58). The vocational expert indicated that there are approximately 6,000 "counter clerk" positions nationally (id.). /// ///
The vocational expert actually testified that 3,000 positions nationally would exist after a 50 percent erosion for a vocational restriction Plaintiff apparently does not require (A.R. 58). Hence, there appear to be 6,000 positions nationally, according to the vocational expert.
The ALJ asked the vocational expert, "Is your testimony consistent with the Dictionary of Occupational Titles?" (A.R. 59). The vocational expert responded:
The Dictionary of Occupational Titles doesn't address absenteeism or position changing. My testimony, with respect to those factors, is based on my experience (A.R. 59).At the end of the administrative hearing, Plaintiff's counsel argued, inter alia, that the national job numbers claimed by the vocational expert were not "significant" numbers (A.R. 60).
In the subsequent decision denying benefits, the ALJ found Plaintiff could perform her past relevant work "as generally performed" (A.R. 32). The ALJ neither recognized nor explained any inconsistency between the Dictionary of Occupational Titles ("DOT") and the testimony of the vocational expert. The ALJ did not identify any other job Plaintiff assertedly could perform, and did not rule on the issue of whether any such job existed in "significant" numbers nationally (A.R. 31-32). The Appeals Council denied review (A.R. 1-3).
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
I. Substantial Evidence Does Not Support the ALJ's Finding that Plaintiff Can Perform her Past Relevant Work "As Generally Performed."
"[T]he best source for how a job is generally performed is usually the Dictionary of Occupational Titles." Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001). Although the matter is somewhat unclear, the DOT appears to provide that a person restricted to occasional reaching above the shoulder could not perform Plaintiff's past relevant work "as generally performed." According to the DOT, the job of "cashier II" requires "reaching" "frequently." DOT 211.462-010. "Reaching" means "extending the hands and arms in any direction." SSR 85-15 (emphasis added); see Mkhitaryan v. Astrue, 2010 WL 1752162, at *3 (C.D. Cal. April 27, 2010) (citing the "Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles," Appendix C). "Any direction" would appear to include above the shoulder. See id. Consequently, many courts have discerned a conflict between the requirement of frequent reaching and a preclusion or restriction on reaching overhead or above the shoulder. See, e.g., Bochat v. Colvin, 2016 WL 1125549, at *2 (C.D. Cal. March 22, 2016); Hernandez v. Colvin, 2016 WL 1071565, at *5 (C.D. Cal. March 14, 2016); Imran v. Colvin, 2015 WL 5708500, at *5 (C.D. Cal. Sept. 28, 2015); Carpenter v. Colvin, 2014 WL 4795037, at *7-8 (E.D. Cal. Sept. 25, 2014); Skelton v. Commissioner, 2014 WL 4162536, at *13 (D. Or. Aug. 18, 2014); Lamb v. Colvin, 2014 WL 3894919, at *5-6 (E.D. Cal. Aug. 4, 2014); Riffner v. Colvin, 2014 WL 3737963, at *4-5 (C.D. Cal. July 29, 2014); Nguyen v. Colvin, 2014 WL 2207058, at *2-3 (C.D. Cal. May 28, 2014); Barnes v. Colvin, 2014 WL 931123, at *7-8 (W.D. Wash. March 10, 2014); Giles v. Colvin, 2013 WL 4832723, at *4 (C.D. Cal. Sept. 10, 2013); Winder v. Astrue, 2013 WL 489611, at *2-3 (C.D. Cal. Feb. 6, 2013); Duff v. Astrue, 2012 WL 3711079, at *3-4 (C.D. Cal. Aug. 28, 2012); McQuone v. Astrue, 2012 WL 3704795, at *3-4 (E.D. Cal. Aug. 24, 2012); Newman v. Astrue, 2012 WL 1884892, at *5 (C.D. Cal. May 23, 2012); Richardson v. Astrue, 2012 WL 1425130, at *4-5 (C.D. Cal. April 25, 2012); Bentley v. Astrue, 2011 WL 2785023, at *3-4 (C.D. Cal. July 14, 2011); Hernandez v. Astrue, 2011 WL 223595, at *5 (C.D. Cal. Jan. 21, 2011); Mkhitaryan v. Astrue, 2010 WL 1752162, at *3; Caruso v. Astrue, 2008 WL 1995119, at *7 (N.D. N.Y. May 6, 2008); see also Prochaska v. Barnhart, 454 F.3d 731, 736 (7th Cir. 2006) ("It is not clear to us whether the DOT's requirements include reaching above shoulder level and this is exactly the sort of inconsistency the ALJ should have resolved with the expert's help").
Case law on this issue is not uniform. Several courts have discerned no conflict between the requirement of frequent reaching and a preclusion or restriction on reaching overhead or above the shoulder. See Parker v. Colvin, 2014 WL 4662095, at *9 (W.D. Pa. Sept. 18, 2014); King v. Commissioner, 2013 WL 3456957, at *3 (E.D. Mich. July 9, 2013); Brister v. Colvin, 2013 WL 2318842, at *11-13 (D. Or. May 27, 2013); Alarcon v. Astrue, 2013 WL 1315968, at *4 (S.D. Cal. March 28, 2013); Lidster v. Astrue, 2012 WL 13731, at *3 (S.D. Cal. Jan. 3, 2012); Provenzano v. Astrue, 2009 WL 4906679, at *5 (C.D. Cal. Dec. 17, 2009); Fuller v. Astrue, 2009 WL 4980273, at *2 (C.D. Cal. Dec. 15, 2009); Rodriguez v. Astrue, 2008 WL 2561961, at *2 (C.D. Cal. June 25, 2008).
Although an ALJ sometimes properly may rely on vocational expert testimony in conflict with the information in the DOT, social security rulings and case law require recognition of the conflict and an explanation for the reliance. /// /// /// /// ///
Social Security Ruling 00-4p provides:
Social Security rulings are "binding on ALJs." Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990).
When a [vocational expert] provides evidence about the requirements of a job or occupation, the [ALJ] has an affirmative responsibility to ask about any possible conflict between that [vocational expert] evidence and information provided in the DOT. . . .///
If the [vocational expert's] evidence appears to conflict with the DOT, the [ALJ] will obtain a reasonable explanation for the apparent conflict.
When vocational evidence provided by a [vocational expert] is not consistent with information in the DOT, the [ALJ] must resolve this conflict before relying on the [vocational expert] evidence to support a determination or decision that the individual is or is not disabled. The [ALJ] will explain in the determination or decision how he or she resolved the conflict. The adjudicator must explain the resolution of the conflict irrespective of how the conflict was identified (emphasis added).
For this purpose, the "information provided in the DOT" includes the information provided in the DOT's "companion publication," the "Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles (SCO)." See SSR 00-4p.
Elsewhere, SSR 00-4p similarly provides that "[w]hen there is an apparent unresolved conflict between [vocational expert] evidence and the DOT, the [ALJ] must elicit a reasonable explanation for the conflict before relying on the [vocational expert] evidence to support a determination or decision about whether the claimant is disabled." (emphasis added). "The procedural requirements of SSR 00-4p 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]." Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007).
In the present case, the ALJ asked whether the vocational expert's testimony was consistent with the DOT. The vocational expert's answer, which was only partially responsive, focused exclusively on absenteeism and the alternating of positions between sitting and standing (A.R. 57-59). The vocational expert's answer said nothing about the testimony's consistency or inconsistency with the DOT's reaching requirements. Neither the vocational expert nor the ALJ recognized the possible conflict between the vocational expert's testimony and the DOT's reaching requirements for Plaintiff's past relevant work. Consequently, neither the vocational expert nor the ALJ provided any explanation that might support preferring the vocational expert's testimony over the arguably conflicting information in the DOT. This was error. See SSR 00-4p; Light v. Social Security Administration, 119 F.3d 789, 794 (9th Cir. 1997) (error that "[n]either the ALJ nor the vocational expert explained the reason for departing from the DOT"); Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995) ("an ALJ may rely on expert testimony which contradicts the DOT, but only insofar as the record contains persuasive evidence to support the deviation").
The Court also observes that it is not at all clear from the ALJ's decision that the ALJ actually relied on the vocational expert's testimony in finding Plaintiff could perform Plaintiff's past relevant work as generally performed (A.R. 32).
It is true that the claimant has the burden of proving an inability to perform his or her past relevant work. See Sanchez v. Secretary, 812 F.2d 509, 511 (9th Cir. 1987). It is also true that an ALJ need not always consult a vocational expert to find that 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). Absent the vocational expert's testimony in the present case, however, the record lacks substantial evidence that a person with Plaintiff's limitations could perform Plaintiff's past relevant work. See Burkhart v. Bowen, 856 F.2d 1335, 1341 (9th Cir. 1988) (administration may not speculate concerning the requirements of particular jobs); Pinto v. Massanari, 249 F.3d at 844 (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"); 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 . . ."). /// /// ///
Defendant appears to argue that the failure by Plaintiff's counsel to point out these errors at the time of the administrative hearing should bar Plaintiff from raising these errors now (Defendant's Motion at 9-10). If Defendant is suggesting that a disability claimant waives an error by failing to raise the error at the administrative level, the suggestion lacks merit. See Sims v. Apfel, 530 U.S. 103 (2000) ("Sims") (claimant may raise for the first time before the court arguments not raised before the Appeals Council); see also Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005) (court discerned error in the ALJ's failure to address an apparent conflict between the DOT and the testimony of the vocational expert, even though plaintiff's counsel had failed to argue the error at the administrative level; "a plaintiff challenging a denial of disability benefits under 42 U.S.C. § 405(g) need not preserve issues in the proceedings before the Commissioner or her delegates" [citing Sims]); Harris v. Apfel, 2001 WL 204836, at *1 (D. Or. Feb. 19, 2001), aff'd, 40 Fed. App'x 581 (2002) (Commissioner conceded that Sims "requires" the conclusion that a claimant does not waive his or her argument by failing to raise the argument before the ALJ). "Social security proceedings are inquisitorial rather than adversarial. It is the ALJ's duty to investigate the facts and develop the arguments both /// /// /// /// /// /// /// for and against granting benefits. . . ." Sims, 530 U.S. at 110-11.
Defendant cites the unpublished decisions of Wentz v. Commissioner, 401 Fed. App'x 189 (9th Cir. Oct. 26, 2010) and Solorzano v. Astrue, 2012 WL 84527 (C.D. Cal. Jan. 10, 2012). Neither decision constitutes controlling authority. Moreover, like the United States District Court for the Eastern District of California, this Court "does not interpret Wentz as holding that, whenever a VE states that there is no conflict between the VE's testimony and the DOT, that testimony must be accepted by the ALJ regardless of whether there is an unexplained apparent conflict, or that the ALJ may rely on testimony that appears to conflict with the DOT so long as the VE offers a mere conclusion that there is no conflict." Gonzales v. Astrue, 2012 WL 2064947, at *4 (E.D. Cal. June 7, 2012); accord Marquez v. Astrue, 2012 WL 3011779, at *2-3 (D. Ariz. July 23, 2012). In light of Sims, this Court also agrees with the Eastern District that "[t]o the extent [cases such as Solorzano] stand for the proposition that a plaintiff is barred from seeking reversal of an erroneous ALJ decision when they neglect to object to said errors at the hearing, they are unconvincing." Clark v. Colvin, 2015 WL 5601406, at *6 (E.D. Cal. Sept. 22, 2015).
II. The Court is Unable to Conclude that the ALJ's Errors Were Harmless.
Defendant argues that any error concerning Plaintiff's past relevant work was harmless because the vocational expert testified: (1) a person with Plaintiff's limitations could also perform the job of "counter clerk"; and (2) there exist 6,000 "counter clerk" positions nationally. "[A]n ALJ's error is harmless where it is inconsequential to the ultimate nondisability determination." Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (citations and quotations omitted); 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 and ambiguous, the proper approach is to remand the case to the agency"); cf. 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"). Under these standards, the Court is unable to conclude that the ALJ's errors were harmless.
First, the ALJ never adopted, or even evaluated, the vocational expert's testimony concerning the "counter clerk" job. In particular, the ALJ did not decide whether 6,000 positions nationally constitute a "significant" number of positions. Whether there exists a significant number of positions nationally is a question of fact to be determined in the first instance by the ALJ. See Martinez v. Heckler, 807 F.2d 771, 775 (9th Cir. 1986). Furthermore, recent case law within the Ninth Circuit may render dubious any conclusion that 6,000 positions nationally constitute a "significant" number of positions. See Gutierrez v. Commissioner, 740 F.3d 519, 529 (9th Cir. 2014) ("the ALJ's finding that 25,000 national jobs is sufficient presents a close call"); Branch v. Colvin, 2015 WL 5225951, at *7 (D. Nev. Sept. 8, 2015) (8,500 jobs nationally not significant); Baker v. Commissioner, 2014 WL 3615497, at *8 (E.D. Cal. July 21, 2014) (14,500 jobs nationally not significant); but see Evans v. Colvin, 2014 WL 3845046, at *1 (C.D. Cal. Aug. 4, 2014) (6,200 jobs nationally deemed significant). /// /// /// ///
III. Remand for Further Administrative Proceedings is Appropriate.
The circumstances of this case warrant remand for further administrative proceedings, which could remedy the ALJ's errors. See 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, 808 F.3d 403, 407 (9th Cir. 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." Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014). --------
LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: March 30, 2016.
/S/_________
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE