Opinion
No. CV-11-339-TUC-JGZ-DTF
05-02-2012
Jose Abel Marquez, Plaintiff, v. Michael J. Astrue, Commissioner of Social Security Administration Defendant.
REPORT AND RECOMMENDATION
Plaintiff Jose Abel Marquez brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of a final decision by the Commissioner of Social Security (Commissioner). This case presents two issues on appeal: whether the Administrative Law Judge (ALJ) failed to provide sufficient justification for the conflict between the testimony of the vocational expert and the Dictionary of Occupational Titles; and whether the hearing transcript has a material defect. Before the Court are Marquez's Opening Brief, Respondent's Response and a Reply. (Docs. 16-18.) Based on the pleadings and the administrative record submitted to the Court, the Magistrate Judge recommends the District Court, after its independent review, remand this case for further proceedings.
PROCEDURAL HISTORY
Marquez filed an application for Supplemental Security Income (SSI) and Disability Insurance Benefits (DIB) on March 28, 2008. (Administrative Record (AR) 120, 128.) Marquez alleged disability from September 14, 2006. (AR 120.) Marquez later amended his application to reflect a closed period of disability ending on August 1, 2009, when he returned to work. (AR 37, 109.) Marquez's application was denied upon initial review (AR 63-70) and on reconsideration (AR 72-77). A hearing was held on November 4, 2009 (AR 34-56), after which ALJ M. Kathleen Gavin found, at Step Five, that Marquez was not disabled (AR 17-26). The Appeals Council denied Marquez's request to review the ALJ's decision. (AR 1.)
FACTUAL HISTORY
Marquez was born on July 25, 1965, making him 41 at the alleged onset date of his disability. (AR 120.) Marquez left school after the eighth grade. (AR 39.) He worked his entire career in roofing, beginning as a laborer and moving into sales. (AR 40, 46.)
The ALJ found that Marquez had the following severe impairments, cervical spine degenerative disc disease, and status post- left shoulder fracture with residual brachial plexopy and axillary neuropathy. (AR 20.) The ALJ concluded that Marquez could perform light work "not involving any overhead work with his left upper extremity, climbing of ropes, ladders or scaffolds, or more than occasional postural movements." (AR 22.) The ALJ found Marquez unable to perform his past relevant work as a roofer because it required doing heavy work. (AR 24.) Because Marquez could not perform all the requirements of light work, the ALJ took testimony from a vocational expert (VE). (AR 25.) The VE stated that Marquez could work as a cashier, parking attendant and courier. (Id.) The ALJ found her testimony consistent with the Dictionary of Occupational Titles (DOT), and based on her input he concluded that Marquez was not disabled because he could perform other work available in the economy. (Id.)
STANDARD OF REVIEW
The Commissioner employs a five-step sequential process to evaluate SSI and DIB claims. 20 C.F.R. §§ 404.920, 416.1520; see also Heckler v. Campbell, 461 U.S. 458, 460-462 (1983). To establish disability the claimant bears the burden of showing he (1) is not working; (2) has a severe physical or mental impairment; (3) the impairment meets or equals the requirements of a listed impairment; and (4) claimant's residual functional capacity (RFC) precludes him from performing his past work. 20 C.F.R. §§ 404.920(a)(4), 416.1520(a)(4). At Step Five, the burden shifts to the Commissioner to show that the claimant has the RFC to perform other work that exists in substantial numbers in the national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). If the Commissioner conclusively finds the claimant "disabled" or "not disabled" at any point in the five-step process, he does not proceed to the next step. 20 C.F.R. §§ 404.920(a)(4), 416.1520(a)(4).
In this case, Marquez was denied at Step Five of the evaluation process. The Step Five determination is made on the basis of four factors: the claimant's RFC, age, education and work experience. Hoopai, 499 F.3d at 1074. "The Commissioner can meet this burden through the testimony of a vocational expert or by reference to the Medical Vocational Guidelines." Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir. 2002).
"The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings of the Commissioner are meant to be conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is "more than a mere scintilla but less than a preponderance." Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The court may overturn the decision to deny benefits only "when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole." Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). This is so because the ALJ "and not the reviewing court must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ." Matney, 981 F.2d at 1019 (quoting Richardson v. Perales, 402 U.S. 389, 400 (1971)); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004).
DISCUSSION
Marquez contends the ALJ erred at Step Five by failing to provide a sufficient justification for the conflict between the VE's testimony and the DOT. He also argues that the transcript from the hearing has a material defect.
Step Five Decision
Marquez argues that the VE's testimony was in conflict with the DOT and the ALJ failed to provide sufficient justification for relying on the VE's conflicting testimony. When asked, the VE indicated there was no conflict between the DOT and her testimony regarding the jobs she concluded Marquez could perform, cashier, parking attendant and courier. (AR 54-55.) Relying on the VE's testimony, the ALJ found there was no conflict and there were jobs Marquez could perform. (AR 25.)
SSR 00-4p requires that when there is a conflict between the DOT and the testimony of a vocational expert, an ALJ must resolve the conflict. Regardless of how a conflict is identified, before relying on the VE's testimony, the ALJ must resolve it and explain the resolution in her decision. Id. The Court first must determine if there is a conflict between the DOT and the VE's testimony because the ALJ has not acknowledged any conflict.
Marquez argues that the ALJ erred in finding no conflict because the VE was purportedly identifying jobs not requiring any overhead reaching with a person's left arm, however, the jobs she identified all require frequent reaching. Defendant does not dispute that Marquez cannot perform any overhead reaching with his left arm and that the jobs identified by the VE require frequent reaching under the DOT classification. However, he contends there is no conflict because the DOT does not indicate that the jobs require a person to reach overhead with both arms.
Reaching is extending arms and hands in any direction. Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles, App. C; SSR 85-15. Thus, frequent reaching includes reaching overhead with both arms. The DOT does not distinguish between types of reaching or reaching with the left or right hand. In light of the broad definition of reaching, the VE's testimony regarding Marquez's ability to perform the three identified jobs is not consistent with the DOT's description of these jobs as requiring frequent reaching. See Jordan v. Astrue, No. 09-CV-1559-MMA, 2010 WL 2816234 (S.D. Cal. May 4, 2010) (finding conflict between VE testimony, that claimant limited to occasional overhead reaching with right shoulder could perform particular jobs, and DOT descriptions that jobs required frequent reaching); Silvera v. Astrue, No. CV-09-1935-JC, 2010 WL 3001619 (C.D. Cal. July 29, 2010) (finding that frequent reaching requirement in the DOT description potentially conflicts with claimant's restriction to perform only occasional overhead reaching because DOT does not distinguish overhead from other reaching); Meyer v. Astrue, No. 1:09-cv-01448-JLT, 2010 WL 3943519 (E.D. Cal. Oct. 1, 2010) (concluding that restriction to occasional overhead reaching with one arm may be inconsistent with DOT requirement for frequent reaching and ALJ, not the court, had to resolve the possible conflict).
Defendant relies on a case in which the court concluded that a VE's testimony, that a person with one arm could perform the jobs identified, provided substantial evidence to support the ALJ's decision that the claimant could perform certain jobs even though the DOT identified fingering and handling as requirements of those jobs. Carey v. Apfel, 230 F.3d 131, 146-47 (5th Cir. 2000). Carey is distinguishable because, in addition to providing the claimant's limitations in a hypothetical, the ALJ explicitly asked the VE if a person with one arm could perform the identified jobs. Id. at 140. Here, neither the VE nor the ALJ clarified the potential conflict between Marquez's reaching limitation and the job requirements. Further, the case pre-dates SSR 00-4p and it is an out-of-circuit case that is not controlling.
Defendant also relies on a Tenth Circuit case, Segovia v. Astrue, 226 F. App'x 801, 804 (10th Cir. 2007). This case is not precedential, relies on Carey and fails to discuss the requirements of SSR 00-4p. More importantly, as discussed above, the Court disagrees with that circuit's determination that there is no conflict between a limitation on overhead reaching and a requirement to do frequent reaching. The Tenth Circuit noted that the DOT description of the jobs at issue in that case did not indicate that they involved predominantly overhead reaching rather than other types of reaching. Id. That precisely highlights the problem - the DOT is broad and a VE must explain the potential conflicts between her testimony and the broad descriptives. It is not for a court to guess that there is no conflict, rather, the ALJ is required to gather the necessary evidence from a VE and explain how the inconsistency is resolved. See Meyer, 2010 WL 3943519 at *8. As the Ninth Circuit held before SSR 00-4p was issued, an ALJ may only rely on expert testimony that contradicts the DOT if there is persuasive record evidence to support such deviation. Johnson v. Shalala, 60 F.3d 1428, 1436 (9th Cir. 1995). Here, the record provides no evidentiary support for the ALJ's reliance on the VE's testimony to the extent it was inconsistent with the DOT.
The ALJ failed to explain the inconsistency between the VE's testimony and the DOT and there is not substantial evidence supporting the ALJ's decision. Therefore, the matter must be remanded for further proceedings.
Transcript
During the hearing, when the ALJ posed a hypothetical to the VE a portion of his question was not transcribed:
So assuming a person who can perform work at the light exertional level, no overhead work with the left arm, and then no climbing ropes, ladders or scaffolding, others occasional [inaudible], I assume that he wouldn't be able to perform his past relevant work at all?(RT 54.) The ALJ went on to use that same set of limitations for additional questions. (Id.) Neither the VE nor Plaintiff's counsel asked for any clarification and apparently understand the entirety of the question. (AR 54.)
It is the Commissioner's obligation to file with the Court a certified copy of the record. 42 U.S.C. § 405(g). As acknowledged by both parties, the missing transcription likely amounts to only a few words. However, the transcript gap occurred during the ALJ's recitation of Plaintiff's limitations, which is the central issue in this appeal. Because this case is subject to remand on other grounds, including additional VE testimony, the Court finds it most expedient to direct the ALJ to re-do the entirety of the testimony from a VE.
REMEDY
The Court has discretion to remand for further development of the record or for an award of benefits. 42 U.S.C. § 405(g); see Harman v. Apfel, 211 F.3d 1172, 1173-74 (9th Cir. 2000). Remand for further development is necessary in this case because the ALJ needs to obtain additional testimony from a VE to resolve the conflict between the VE's initial limited testimony and the DOT. Further, Plaintiff requested only a remand for additional administrative process not an award of benefits.
RECOMMENDATION
For the foregoing reasons, the Magistrate Judge recommends the District Court, after its independent review, enter an order remanding the case to the ALJ for further consideration.
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within 14 days of being served with a copy of this Report and Recommendation. If objections are not timely filed, they may be deemed waived. The parties are advised that any objections filed are to be identified with the following case number: CV-11-339-TUC-JGZ.
DATED this 2nd day of May, 2012.
/s/_________
D. Thomas Ferraro
United States Magistrate Judge