Summary
noting that decisions considering this issue are not consistent
Summary of this case from Gonzales v. ColvinOpinion
NO. ED CV 11-2042-E
07-20-2012
JOE MUNOZ, JR., Plaintiff, v. MICHAEL J. ASTRUE, 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 January 6, 2012, seeking review of the Commissioner's denial of benefits. The parties filed a consent to proceed before a United States Magistrate Judge on February 15, 2012. Plaintiff filed a motion for summary judgment on June 15, 2012. Defendant filed a motion for summary judgment on July 16, 2012. The Court has taken both motions under submission without oral argument. See L.R. 7-15; "Order," filed January 9, 2012.
BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
Plaintiff, a former warehouse worker, asserts disability based on alleged mental impairments (Administrative Record ("A.R.") 26-46, 48, 108-09, 139, 153). Dr. Romualdo R. Rodriguez, a consultative physician, diagnosed a "depressive disorder," but opined that Plaintiff is "[a]ble to understand, remember, and carry out simple one or two-step job instructions . . . [and is] [a]ble to do detailed and complex instructions" (A.R. 233-34). Dr. N. Haroun, a state agency physician, opined that Plaintiff's depression "should not preclude him from performing at least simple 1-2 step tasks," but also opined that Plaintiff is "moderately limited" in his "ability to carry out detailed instructions" (A.R. 239, 246, 248).
Plaintiff testified to depression that allegedly prevents him from doing much of anything (A.R. 35, 38, 41-42). Plaintiff assertedly cannot concentrate long enough or well enough to read or even to watch television (A.R. 38, 41-42). Plaintiff's sister reported that Plaintiff previously was able to "concentrate [and] stay functional," but now "can't stay focused enough to have any activities" (A.R. 160-63). Plaintiff's sister indicated that Plaintiff's condition affects his ability to follow instructions and "its [sic] hard for him to stay focused" (A.R. 164). According to the sister, Plaintiff tends to "get very confused," and cannot follow written instructions well (id.).
The Administrative Law Judge ("ALJ") found that a severe "depressive disorder" has reduced Plaintiff's mental capacity such that Plaintiff can perform only "one-to-two step instruction jobs" (A.R. 12-15). A vocational expert testified that a person so limited could perform Plaintiff's past relevant work as a warehouse worker (A.R. 48-49).
According to the Dictionary of Occupational Titles ("DOT"), Plaintiff's past relevant work requires "Reasoning Development Level 2." DOT § 922.687-058. The DOT defines Level 2 as requiring the worker to "[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions." DOT Appendix C. Level 2 appears to require a slightly higher level of functioning than Level 1. The DOT defines Level 1 as requiring that the worker "[a]pply commonsense understanding to carry out simple one-or-two-step instructions. . . ." Id.
The ALJ did not ask the vocational expert whether the expert's testimony was consistent with the information in the DOT (A.R. 48-49). The vocational expert did not volunteer whether the expert's testimony was consistent with the information in the DOT (id.). The ALJ's decision states that "the vocational expert's testimony is consistent with the information contained in the [DOT]" (A.R. 16).
In apparent reliance on the vocational expert's testimony, the ALJ found that Plaintiff still can perform Plaintiff's past relevant work (A.R. 16). The ALJ therefore denied benefits (id.). 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). 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 Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006).
DISCUSSION
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); see 20 C.F.R. § 422.408.
Occupational evidence provided by a [vocational expert] generally should be consistent with the occupational information supplied by the DOT. When there is an apparent unresolved conflict between [vocational expert] evidence and
the DOT, the adjudicator 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. At the hearings level, as part of the adjudicator's duty to fully develop the record, the adjudicator will inquire on the record, as to whether or not there is such consistency. . . . When a VE or VS provides evidence about the requirements of a job or occupation, the adjudicator has an affirmative responsibility to ask about any possible conflict between that VE or VS evidence and information provided in the DOT.
"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); see Light v. Social Security Administration, 119 F.3d 789, 794 (9th Cir. 1997) (error exists where "[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").
In the present case, the ALJ erred by failing to "inquire, on the record, as to whether or not" the vocational expert's testimony was consistent with the information in the DOT. See SSR 00-4p. Whether this error was material depends on whether there existed "an apparent unresolved conflict" between the vocational expert's testimony and the DOT. See id.
Plaintiff argues that there plainly existed "an apparent unresolved conflict," relying on the wording of the ALJ's residual functional capacity finding. In making this argument, Plaintiff equates the ALJ's limitation to "one-to-two step instruction jobs" with a limitation to jobs requiring no more than Level 1 reasoning.
Defendant argues that there did not exist any "apparent unresolved conflict" between the vocational expert's testimony and the DOT, notwithstanding the wording of the ALJ's residual functional capacity finding. In making this argument, Defendant submits that the ALJ did not intend the limitation to "one-to-two step instruction jobs" to entail a limitation to jobs requiring no more than Level 1 reasoning.
Several district courts have discerned material error in administrative decisions in which ALJs have found that claimants who were limited to "one-to-two step instruction" jobs could perform jobs requiring Level 2 reasoning. See, e.g., Ibarra v. Astrue, 2012 WL 2603266, at *3 (C.D. Cal. July 3, 2012); Wiszowaty v. Astrue, 2012 WL 967415, at *21-23 (N.D. Ind. March 21, 2012); Pouria v. Astrue, 2012 WL 1977278, at *2-3 (C.D. Cal. June 1, 2012); Whitlock v. Astrue, 2011 WL 3793347, at *5 (D. Or. Aug. 24, 2011). Yet, at least one district court repeatedly has refused to discern any material error in administrative decisions in which ALJs have found that claimants who were limited to "one-to-two step instruction" jobs could perform jobs requiring Level 2 reasoning. See, e.g., Seechan v. Astrue, 2010 WL 1812637, at *10-11 (E.D. Cal. May 5, 2010); Villafana v. Astrue, 2010 WL 1286818, at *9-10 (E.D. Cal. March 29, 2010); Lee v. Astrue, 2010 WL 653980, at *10-11 (E.D. Cal. Feb. 19, 2010).
Even if the above-cited decisions were consistent and binding (and they are neither), the decisions would not necessarily dictate the result in the present case. Here, the decisive question concerns the intendment of the ALJ's residual functional capacity finding (as incorporated into the hypothetical posed to the vocational expert). Specifically, the decisive question is: Did this ALJ find that this severe mental impairment limited this Plaintiff to jobs requiring only Level 1 reasoning? See Gonzales v. Astrue, 2012 WL 14002, at *12 (E.D. Cal. Jan. 4, 2012) (suggesting that the difference in courts' conclusions regarding "whether an RFC limitation for simple, one-to-two step instructions is compatible with DOT reasoning level 2" "appears to be predicated on the particular facts of each case and what the ALJ or the physician's words of limitation meant in the context of the medical evidence in the record"). For the reasons discussed below, the Court concludes that the intendment of the ALJ's residual functional capacity finding is unclear in relation to the question presented. Because the intendment is unclear, remand for clarification is appropriate. See, e.g., 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").
There exist at least three reasons why this Court cannot dismiss the possibility that the ALJ's residual functional capacity finding intended to limit Plaintiff to jobs requiring only Level 1 reasoning. First, in defining Plaintiff's residual functional capacity, the ALJ chose language closely paralleling the language of the DOT's definition of Level 1. The ALJ found Plaintiff capable of working in "one-to-two step instruction jobs"; the DOT defines Level 1 as entailing the ability "to carry out simple one-or-two-step instructions." Other judges of this Court have deemed similar parallelism of language sufficiently significant to require remand on similar facts. See, e.g., Ibarra v. Astrue, 2012 WL 2603266, at *3; Martinez v. Astrue, 2012 WL 589671, at *9 (C.D. Cal. Feb. 22, 2012); Coleman v. Astrue, 2011 WL 781930, at *5-6 (C.D. Cal. Feb. 28, 2011). Defendant essentially invites the Court to attribute this parallelism to mere coincidence. Defendant argues the Court should infer that the ALJ's restriction of Plaintiff to "one-to-two step instruction jobs" did not intend to restrict Plaintiff to "simple one-or-two step instruction" jobs, because, in context, these very similar phrases should be accorded very different meanings. Though seemingly counterintuitive, the invited inference could be correct, in light of the opinions of Dr. Rodriguez and the context provided by other statements in the ALJ's decision. Nevertheless, the invited inference would be unduly conjectural, in the absence of clarification from the ALJ.
Furthermore, the ALJ's hypothetical question to the vocational expert assumed an individual "limited to one to two simple instruction jobs" (A.R. 48) (emphasis added).
Second, Dr. Naroun, one of the physicians whose opinions the ALJ cited with approval, also used language nearly identical to the language of Level 1 (A.R. 246) ("simple one-two step tasks"). Another judge of this Court regarded as significant a physician's use of language similar to the language of Level 1. See Calderon v. Astrue, 2012 WL 2806266, at *4 (C.D. Cal. July 6, 2012). In Calderon, the ALJ had found the claimant capable of performing jobs requiring Level 2 reasoning despite a physician's opinion that the claimant was limited to following "simple one and two step instructions." Because of the physician's choice of language, the Calderon Court could not confidently deem harmless the ALJ's omission of this limitation from the ALJ's residual functional capacity determination. Id. at *4.
Dr. Naroun found Plaintiff limited in his "ability to carry out detailed instructions," although Dr. Rodriguez reached an opposite conclusion (compare A.R. 248 with A.R. 234). The ALJ's apparent approval of both of these physicians' opinions injects additional uncertainty into the record (see A.R. 15).
Third, contrary to Defendant's arguments, the record does contain some evidence that Plaintiff's mental impairments have reduced his functioning below Level 2 reasoning. In addition to the opinion of Dr. Naroun that Plaintiff is moderately limited in Plaintiff's ability to carry out detailed instructions, Plaintiff's sister corroborated Plaintiff's alleged lack of capacity to function. An ALJ must consider a lay witness' reported observations of a claimant, and can reject those observations only by giving "reasons germane" to that witness. See Stout v. Commissioner, 454 F.3d 1050, 1053 (9th Cir. 2006); Regennitter v. Commissioner, 166 F.3d 1294, 1298 (9th Cir. 1999); Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996); Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996); see also SSR 96-7p. The ALJ's decision fails even to mention the sister's statements (A.R. 11-16). Thus, the Court cannot infer that the ALJ's decision properly rejected the sister's statements regarding Plaintiff's asserted functional limitations (see id.).
Most of the above-cited authorities speak in terms of the "testimony" of lay witnesses. The standards discussed in these authorities, however, "appear equally applicable to written statements" submitted by lay witnesses. Hendrix v. Astrue, 2010 WL 60959, at *10 (C.D. Cal. Jan. 4, 2010); accord Hughes v. Commissioner, 2010 WL 4561404, at *1 (9th Cir. Nov. 12, 2010) (applying to written statements by lay witnesses the same standards applicable to testimony by lay witnesses); cf. Schneider v. Commissioner, 223 F.3d 968, 974-75 (9th Cir. 2000) (ALJ should have considered letters submitted by claimant's friends and ex-employers in evaluating severity of claimant's functional limitations).
In arguing the alleged harmlessness of the ALJ's violation of SSR 00-4p, Defendant submits that the ALJ need not have consulted a vocational expert at all. It is 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 limited to "one-to-two step instruction jobs" can perform Plaintiff's past relevant work. The DOT appears to suggest that a person so limited cannot do so. The ALJ's own opinion may not properly supply the vocational evidence necessary to depart from the DOT. See Light v. Social Security Administration, 119 F.3d 789, 794 (9th Cir. 1997) (an explanation and "persuasive" supporting evidence must accompany any administrative deviation from the DOT); Burkhart v. Bowen, 856 F.2d 1335, 1341 (9th Cir. 1988) (administration may not speculate concerning the requirements of particular jobs).
Finally, the fact that Plaintiff previously performed the warehouse worker job, of course, is not a sufficient basis on which to conclude he could do so at the time of the ALJ's decision. Many if not most mental impairments are progressive in nature. See Blankenship v. Bowen, 874 F.2d 1116, 1121-22 (6th Cir. 1989), cited with approval in Morgan v. Sullivan, 945 F.2d 1079, 1082-83 (9th Cir. 1991). There exists record evidence, including the sister's statements, suggesting a significant, relatively recent deterioration in Plaintiff's mental capacity.
This Court cannot deem the ALJ's errors harmless on the ground that the record supports the conclusion Plaintiff actually possesses greater capacity than the capacity to perform "one-to-two step instruction jobs." The ALJ's capacity determination must circumscribe the Court's analysis. See Gonzalez v. Astrue, 2012 WL 2064947, at *4 (E.D. Cal. June 7, 2012) ("The Court cannot reassess the medical evidence to conclude Plaintiff is less limited than indicated by the ALJ's RFC determination").
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CONCLUSION AND ORDER
The errors discussed above were potentially prejudicial to the ALJ's decision, such that the decision must be reversed. See McLeod v. Astrue, 640 F.3d 881, 887 (9th Cir. 2011) (reversal appropriate 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"). When a court reverses an administrative determination, "the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation." INS v. Ventura, 537 U.S. 12, 16 (2002) (citations and quotations omitted). Remand is proper where, as here, additional administrative proceedings could remedy the defects in the decision. See Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984).
Therefore, Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion.
LET JUDGMENT BE ENTERED ACCORDINGLY.
_________________
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE