JACQUELINE CHOOLJIAN, Magistrate Judge.
On February 14, 2013, plaintiff Leslie A. Darling ("plaintiff") filed a Complaint seeking review of the Commissioner of Social Security's denial of plaintiff's application for benefits. The parties have consented to proceed before a United States Magistrate Judge.
This matter is before the Court on the parties' cross motions for summary judgment, respectively ("Plaintiff's Motion") and ("Defendant's Motion"). The Court has taken both motions under submission without oral argument.
Based on the record as a whole and the applicable law, the decision of the Commissioner is REVERSED AND REMANDED for further proceedings consistent with this Memorandum Opinion and Order of Remand.
On October 12, 2007, plaintiff filed an application for Supplemental Security Income. (Administrative Record ("AR") 108). Plaintiff asserted that he became disabled on February 1, 2007, due to back, groin and leg pain. (AR 138). The Administrative Law Judge ("ALJ") examined the medical record and heard testimony from plaintiff (who was represented by counsel) and a vocational expert on February 24, 2010 ("Pre-Remand Hearing"). (AR 20-45).
On April 2, 2010, the ALJ determined that plaintiff was not disabled through the date of the decision ("Pre-Remand Decision"). (AR 8-16). The Appeals Council denied plaintiff's application for review of the Pre-Remand Decision. (AR 1).
On July 19, 2011, this Court entered judgment remanding the case for further proceedings based upon the parties' Stipulation to Voluntary Remand Pursuant to Sentence Four of 42 U.S.C. § 405(g) and to Entry of Judgment. (AR 414-15). The Appeals Council in turn remanded the case for a new hearing. (AR 418-19). On remand the ALJ heard testimony from plaintiff (who again appeared with counsel), and a vocational expert on August 14, 2012 ("Post-Remand Hearing"). (AR 368-409).
On November 9, 2012, the ALJ determined that plaintiff was not disabled for the period of October 12, 2007 (i.e., when plaintiff filed the benefits application at issue in this case) to February 3, 2011 (i.e., until plaintiff was granted benefits commencing on February 4, 2011 based on a subsequent application for Supplemental Security Income) ("Post-Remand Decision").
To qualify for disability benefits, a claimant must show that the claimant is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months."
In assessing whether a claimant is disabled, an ALJ is to follow a five-step sequential evaluation process:
The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five.
Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of benefits only if it is not supported by substantial evidence or if it is based on legal error.
To determine whether substantial evidence supports a finding, a court must "`consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.'"
Plaintiff contends, in part, that a reversal or remand is warranted because the ALJ's determination at step five that there are jobs that exist in significant numbers in the national economy which plaintiff could perform is not supported by substantial evidence. The Court agrees. As the Court cannot find the ALJ's error harmless, a remand is warranted.
At step five of the sequential evaluation process, the Commissioner has the burden to demonstrate that the claimant can perform some other work that exists in "significant numbers" in the national economy, taking into account the claimant's residual functional capacity, age, education, and work experience.
At an administrative hearing, an ALJ may seek testimony from a vocational expert as to "(1) what jobs the claimant, given his or her residual functional capacity, would be able to do; and (2) the availability of such jobs in the national economy."
ALJs routinely rely on the Dictionary of Occupational Titles ("DOT") "in determining the skill level of a claimant's past work, and in evaluating whether the claimant is able to perform other work in the national economy."
At the Post-Remand Hearing, the vocational expert testified that there were only three jobs that plaintiff (or a hypothetical individual with plaintiff's characteristics) could perform, specifically (1) packager (DOT § 559.687-074) — total 40,000 positions in California, and 400,000 positions nationwide; (2) inspector (DOT § 727.687-066) — total 47,000 positions in California, and 434,000 positions nationwide; and (3) assembler (DOT § 731.687-034) — total 20,000 positions in California, and 235,000 positions nationwide. (AR 402-03). The vocational expert opined that the total number of positions for each job would be eroded by two thirds, however, essentially due to plaintiff's limited ability to use foot controls. (AR 400-03).
On cross-examination, the vocational expert testified that he used the "Job Browser Pro" software program as "the basis of [his employment] numbers." (AR 403-04). When plaintiff's attorney asked the vocational expert whether, with respect to the inspector position, his job estimates represented totals for the particular "DOT number" as opposed to "the entire code," the ALJ interrupted and suggested that the attorney submit briefing on a different issue (i.e., the region(s) from which the ALJ should consider employment numbers). (AR 403-04).
On August 17, 2012 (i.e., after the Post-Remand hearing), plaintiff's attorney submitted a letter brief to the ALJ, together with documents plaintiff represents were generated by the Job Browser Pro software program for each of the representative jobs the vocational expert identified at the hearing ("Job Browser Pro reports"). (Plaintiff's Motion at 9) (citing AR 552-577).
Plaintiff essentially contends that the vocational expert's testimony regarding the number of positions available for the jobs of packager, inspector, and assembler was not reliable, and therefore could not serve as substantial evidence supporting the ALJ's determination at step five that the representative jobs existed in "significant numbers" in the national economy. (Plaintiff's Motion at 8-14; Reply at 3-7). The Court agrees that a remand is warranted to permit the ALJ properly to consider the Job Browser Pro reports and to reevaluate whether substantial evidence supports the non-disability determination at step five.
First, the ALJ said nothing in the decision about the Job Browser Pro reports plaintiff provided after the Post-Remand Hearing. For the reasons discussed below, the Job Browser Pro reports were significant probative evidence that the ALJ should have considered at step five. The ALJ's silent disregard of such evidence was legal error.
Second, although a vocational expert's testimony may, without more, constitute substantial evidence of the number of jobs that exist in the national economy,
Here, as plaintiff correctly points out (Plaintiff's Motion at 10-13; Reply at 4-6), the Job Browser Pro reports suggest that the employment numbers the vocational expert provided at the hearing may have erroneously pertained to entire Occupational Employment Survey ("OES") statistical groups rather than the individual representative occupations encompassed therein. For example, the vocational expert testified that there were 47,000 positions in California and 434,000 nationally for the individual occupation of inspector (DOT § 727.687-066), and 40,000 positions in California and 400,000 nationally for packager (DOT § 559.687-074). (AR 402). The Job Browser Pro reports, however, reflect significantly fewer positions for all of OES group No. 51-9061 (i.e., 47,720 for California and 434,170 nationally) — the OES group that encompasses both the inspector and packager occupations, and which contains a total of "782 specialty occupations (unique DOT codes)." (AR 554, 561, 563, 570). Similarly, the vocational expert testified that for the individual assembler occupation (DOT § 731.687-034) there were 20,000 positions in California and 235,000 nationally — virtually the same numbers as for all of OES group No. 51-9399 (i.e., 20,190 in California, 235,910 nationally) the OES group that encompasses the assembler occupation and which contains a total of 1587 individual occupations. (AR 572, 575). Moreover, the hearing transcript suggests that the vocational expert based his opinions solely on the raw data generated by the Job Browser Pro program (i.e., without any evaluation based on professional experience).
Accordingly, the vocational expert's testimony regarding the availability of the individual representative jobs, which the ALJ adopted, could not serve as substantial evidence supporting the ALJ's determination at step five that plaintiff could perform jobs that existed in "significant numbers" in the national economy.
Finally, the Court cannot conclude that the ALJ's error was harmless since the vocational expert testified that the only jobs available at the light exertional level were the three representative jobs, and defendant points to no persuasive evidence in the record which could otherwise support the ALJ's determination at step five that plaintiff was not disabled.
For the foregoing reasons, the decision of the Commissioner of Social Security is reversed in part, and this matter is remanded for further administrative action consistent with this Opinion.
LET JUDGMENT BE ENTERED ACCORDINGLY.
