Massachi v. Astrue

• Decision Date: 11 May 2007
• Docket Number: No. 05-55201.,05-55201.
• Citation: 486 F.3d 1149
• Parties: Eshagh MASSACHI, Plaintiff-Appellant, v. Michael J. ASTRUE, Commissioner of the Social Security Administration, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

486 F.3d 1149 Eshagh MASSACHI, Plaintiff-Appellant,
v.
Michael J. ASTRUE, Commissioner of the Social Security Administration, Defendant-Appellee. No. 05-55201. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 9, 2007. Filed May 11, 2007.

[486 F.3d 1150]

Stephanie M. Simpson, Northridge, CA, for the plaintiff-appellant.

Armand Roth, Assistant United States Attorney, and Eric K.H. Chinn, Special Assistant United States Attorney, San Francisco, CA, for the defendant-appellee.

Appeal from the United States District Court for the Central District of California; Victor B. Kenton, Magistrate Judge, Presiding. D.C. No. CV-04-00044-VBK.

Before T.G. NELSON, SUSAN P. GRABER, and SANDRA S. IKUTA, Circuit Judges.

T.G. NELSON, Circuit Judge.

Eshagh Massachi appeals the district court's grant of summary judgment upholding the Commissioner of Social Security's denial of Supplemental Security Income ("SSI") benefits. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in part and vacate and remand in part.

We must decide for the first time whether, in light of the requirements of Social Security Ruling ("SSR") 00-4p, an administrative law judge ("ALJ") may rely on the testimony of a vocational expert regarding the requirements of a particular job without first inquiring whether that expert's testimony conflicts with the Dictionary of Occupational Titles. Consistent with other circuits that have considered this question, we hold that an ALJ may not.

I. Background

Massachi filed for SSI disability benefits in 1996 based on depression and other

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problems. In the final step of the five-step inquiry to determine disability,¹ the ALJ found that Massachi was not disabled within the meaning of the Social Security Act because he could adjust to other work. The ALJ also assessed Massachi's residual functional capacity² and found that Massachi "often" suffered from deficiencies of concentration, persistence, or pace resulting in failure to complete tasks in a timely manner. The ALJ relied on the reports of two psychiatrists and the testimony of a vocational expert.

Both Marat Pushin, M.D., and Sohini Parikh, M.D., Massachi's psychiatrists, diagnosed Massachi with major depression. Both also found that Massachi's ability to understand, remember, and carry out simple one or two-step instructions was intact. Dr. Pushin found that Massachi's ability to understand, remember, and carry out extensive or complex instructions was impaired and that his ability to maintain concentration and attention throughout the interview was mildly impaired. Dr. Parikh noted that Massachi had a mild to moderate impairment in his ability to reason and to make social, occupational, and personal adjustments, but opined that he should be able to interact appropriately with peers. Dr. Parikh concluded that Massachi would not be able to respond appropriately to the usual work settings in such matters as attendance and would have a hard time adjusting to changes in the work routine because of his depression and poor concentration.

Massachi sought review of the ALJ's decision and the district court remanded the case. It ordered the Appeals Council to instruct the ALJ to re-evaluate Massachi's residual functional capacity based on an accurate and complete summary of the findings of the two psychiatrists and to obtain additional vocational expert testimony regarding the re-evaluation. Accordingly, the Appeals Council vacated the ALJ's original decision.

Pursuant to the remand order, the ALJ re-examined Dr. Pushin's and Dr. Parikh's findings and reassessed Massachi's residual functional capacity. As part of the new residual functional capacity assessment, the ALJ changed the determination regarding deficiencies in concentration, persistence, and pace from "often" to "mild to moderate."

On remand, the vocational expert, Lynne Tracy, testified again. Consistent with the new residual functional capacity assessment, the ALJ asked Tracy a hypothetical question about whether an individual of Massachi's age and education who was limited to simple tasks because of "mild to moderate impairment in his ability to reason, concentrate, make social adjustments and personal adjustments" would be able to perform Massachi's past work in metallurgy. Tracy responded that he would not, but that someone fitting such a description could perform entry-level work such as janitorial or cleaning jobs. Moreover, such work was available in the relevant locality (the greater Los Angeles area). When Massachi's attorney

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added to the hypothetical that the individual "often suffered from deficiencies of concentration, persistence and pace," Tracy testified that the individual would be incapable of working, even if "often" only meant up to one-third of the day. The ALJ did not ask Tracy whether her testimony was consistent with the Dictionary of Occupational Titles.

At step five of the analysis, relying on Tracy's new testimony, the ALJ again found that Massachi was capable of performing other work. Thus, the ALJ again found that Massachi was not disabled. Massachi filed a second action in district court, and the district court entered an order granting summary judgment to the Commissioner. On appeal, Massachi contends: 1) that the ALJ erred by relying on the vocational expert's testimony; 2) that the ALJ's residual functional capacity assessment was not supported by substantial evidence; 3) that the ALJ's finding at step three of the analysis was not supported by substantial evidence; and 4) that the ALJ was not impartial.

II. Standard of Review

This court reviews de novo a district court's order affirming an ALJ's decision to deny benefits.³ However, the scope of our review is limited. We may set aside a denial of benefits only "if it is not supported by substantial evidence or if it is based on legal error."⁴ "Where the evidence as a whole can support either" a grant or a denial, "we may not substitute our judgment for the ALJ's."⁵

III. Discussion

A. The ALJ's reliance on the vocational expert's testimony

For the first time, we address the question whether, in light of the requirements of SSR 00-4p,⁶ an ALJ may rely on a vocational expert's testimony regarding the requirements of a particular job without first inquiring whether the testimony conflicts with the Dictionary of Occupational Titles. We hold than an ALJ may not. In so holding, we join the Third, Seventh, and Tenth Circuits.⁷ We also follow our own precedent.

SSR 00-4p unambiguously provides that "[w]hen a [vocational expert] . . . provides evidence about the requirements of a job or occupation, the adjudicator has an affirmative responsibility to ask about any possible conflict between that [vocational expert] . . . evidence and information provided in the [Dictionary of Occupational Titles]."⁸ SSR 00-4p further provides that the adjudicator "will ask" the vocational

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expert "if the evidence he or she has provided" is consistent with the Dictionary of Occupational Titles and obtain a reasonable explanation for any apparent conflict.⁹

Our...