James D. Fuller v. Michael J. Astrue, No. 2:2008cv07062 - Document 17 (C.D. Cal. 2009)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh re: REQUEST to Proceed In Forma Pauperis, Declaration in Support 1 . The Court concludes that the vocational experts testimony that Plaintiff could perform the three jobs he identified did not conflict with the DOT and, therefore, the ALJ did not err in relying on that testimony. For these reasons, the Agencys decision is affirmed and the case is dismissed with prejudice. IT IS SO ORDERED. (rp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 JAMES D. FULLER, Plaintiff, 11 12 13 14 v. MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 08-7062-PJW MEMORANDUM OPINION AND ORDER 16 17 I. INTRODUCTION 18 Before the Court is Plaintiff s appeal of a decision by Defendant 19 Social Security Administration ( the Agency ), denying his 20 applications for Supplemental Security Income ( SSI ) and Disability 21 Insurance Benefits ( DIB ). 22 Law Judge ( ALJ ) erred when he determined that Plaintiff was capable 23 of performing three jobs that require reaching above the shoulder 24 because Plaintiff is unable to reach above his shoulder with his right 25 arm. 26 concludes that the ALJ did not err in finding that Plaintiff could 27 perform these three jobs and, therefore, the Agency s decision is 28 affirmed. (Joint Stip. at 5-6.) Plaintiff claims that the Administrative As explained in detail below, the Court 1 II. DISCUSSION 2 Plaintiff was born in June 1961. (Administrative Record ( AR ) 3 545.) He worked as a service technician from 1983 until 2001, when he 4 stopped working because he was not making enough money to live on and 5 pay all the bills. 6 pain in his right shoulder--which has since been diagnosed as rotator 7 cuff impingement syndrome--and began treatment. 8 he applied for DIB and SSI, alleging an inability to work due to 9 arthritis in his right shoulder and right hand, inability to sleep, (AR 91, 547 49.) In April 2005, he developed (AR 274.) In 2006, 10 and high cholesterol. 11 and Plaintiff requested a hearing before an ALJ. 12 Plaintiff appeared with counsel at the administrative hearing and 13 testified. 14 interrogatories to a vocational expert who provided written responses. 15 (AR 60 64, 72 78.) 16 Plaintiff was capable of working. 17 vocational expert s opinion. 18 (AR 91.) (AR 539 62.) The Agency denied the claim initially On August 9, 2007, The ALJ thereafter submitted written In short, the vocational expert opined that Plaintiff did not object to the On May 15, 2008, the ALJ issued a decision denying Plaintiff s 19 applications. 20 functional capacity to perform a full range of light work except that 21 he could only occasionally reach with his right arm and could never 22 reach above his shoulder with that arm. 23 vocational expert s submission, the ALJ determined that Plaintiff 24 could not perform his past work but could perform work as a 25 photofinishing counter clerk, a laminating machine offbearer, and a 26 furniture rental consultant. 27 28 (AR 17-25.) He found that Plaintiff had the residual (AR 20.) Relying on the (AR 25.) Plaintiff takes exception to this finding. He contends that the ALJ erred in determining that he could perform these jobs because all 2 1 three require reaching above the shoulder with both arms and Plaintiff 2 is unable to do this. 3 (Joint Stip. at 6.) The Agency disagrees. It argues that the description of these 4 three jobs in the Dictionary of Occupational Titles ( DOT ) does not 5 specify that overhead reaching with both arms is required. 6 Stip. at 12.) 7 relying on the vocational expert s finding that Plaintiff could 8 perform all three jobs despite his inability to reach over his 9 shoulder with his right arm. 10 Court sides with the Agency. 11 (Joint As a result, the Agency claims, the ALJ did not err in For the reasons explained below, the Once a claimant has met his burden at step four of demonstrating 12 that he cannot perform his past relevant work, the burden shifts to 13 the Agency at step five to establish that the claimant is capable of 14 performing other jobs in the economy. 15 404.1560(c); see Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 16 1995). 17 See 20 C.F.R. § 404.1566(e); see also Tackett v. Apfel, 180 F.3d 1094, 18 1101 (9th Cir. 1999). 19 reliable job information contained in various publications, including 20 the DOT. 21 authoritative source on the characteristics of jobs. 22 Massanari, 249 F.3d 840, 845-46 (9th Cir. 2001). 23 DOT is not the sole source for this information and the Agency may 24 rely on the testimony of a vocational expert for information on jobs. 25 Johnson, 60 F.3d at 1435. 26 differs from the DOT, however, he or she must provide a persuasive 27 rationale supported by the evidence to justify the departure. 28 Light v. Soc. Sec. Administration, 119 F.3d 789, 793 (9th Cir. 1997). 20 C.F.R. §§ 404.1520(f)(g), This burden can be met through the use of a vocational expert. It can also be satisfied by taking notice of 20 C.F.R. § 404.1566(d). The DOT is a presumptively See Pinto v. Nevertheless, the Where the vocational expert s testimony 3 See 1 Here, the ALJ found at step four that Plaintiff could perform 2 light work but could only reach occasionally with his right arm and 3 could not reach above his shoulder at all. 4 limitations in mind, the ALJ determined that Plaintiff could not 5 perform his past relevant work as a heavy equipment mechanic. 6 24.) 7 (AR 20.) With these (AR The ALJ determined that Plaintiff s limitations precluded the use 8 of the medical-vocational guidelines (or Grids ) and solicited input 9 from a vocational expert. (AR 24-25.) The ALJ did so by providing 10 the vocational expert with a list of questions, to which the 11 vocational expert provided written responses. 12 vocational expert found three jobs that Plaintiff could perform 13 despite his reaching limitations: photofinishing counter clerk, 14 laminating machine offbearer, and furniture rental consultant. 15 61-62.) 16 require occasional reaching. 17 4th Ed. Revised 1991, Nos. 295.357-018, 569.686-046, and 249.366-010. 18 In Plaintiff s view, reaching includes reaching above the shoulder 19 and, because he is unable to reach that high with his right arm, he 20 cannot perform any of the jobs identified by the vocational expert. 21 (Joint Stip. at 6.) 22 (AR 60-63, 72-78.) The (AR According to the job descriptions in the DOT, all three jobs See Dictionary of Occupational Titles, There is no support for this argument. To begin with, the DOT does not define reaching as reaching 23 above shoulder height, nor does anything in the job descriptions for 24 these three jobs suggest that reaching above the shoulder with either 25 arm, never mind both arms, is required. 26 Occupational Titles, 4th Ed. Revised 1991, Nos. 295.357-018, 569.686- 27 046, and 249.366-010. 28 vocational expert s findings and the DOT. See Dictionary of Thus, there is no apparent conflict between the 4 1 Plaintiff points out that, in the Handbook for Analyzing Jobs and 2 Social Security Ruling ( SSR ) 85-15, reaching is defined as 3 extending hands and arms in any direction. 4 argues that these definitions should be incorporated into the DOT. 5 Again, the Court disagrees. (Joint Stip. at 6.) 6 The fact that reaching as a general matter can involve 7 extending hands or arms in any direction does not mean that the 8 reaching required for the jobs identified by the vocational expert 9 involves reaching at or above shoulder level. He Because the nature of 10 the particular reaching action required in the performance of the jobs 11 at issue is not specified in the DOT, the ALJ properly relied on the 12 vocational expert s testimony that Plaintiff could perform the jobs in 13 question despite the limitations on his reaching. 14 ( Reaching (extending the hands and arms in any direction) ... [is] 15 required in almost all jobs. 16 therefore, may eliminate a large number of occupations a person could 17 otherwise do. 18 effects, and the assistance of a [vocational expert] may be needed to 19 determine the effects of the limitations )(emphasis added). 20 See SSR 85-15 Significant limitations of reaching ... Varying degrees of limitations would have different This is particularly true in this case, where the vocational 21 expert s testimony was provided in writing to Plaintiff s counsel to 22 give him an opportunity to object or request clarification and counsel 23 did neither. 24 objection to the vocational expert s testimony is tacit approval of 25 that testimony.1 (AR 58-59, 69-70.) Plaintiff s failure to raise an 26 27 28 1 Plaintiff s counsel arguably raised the alleged inconsistency between the DOT and the vocational expert s testimony after the ALJ (continued...) 5 Although not binding on the Court, Carey v. Apfel, 230 F.3d 131 1 2 (5th Cir. 2000), is instructive. In Carey, the ALJ relied on the 3 testimony of a vocational expert to find that the claimant, whose left 4 arm had been amputated, could perform work as a cashier or ticket 5 seller. 6 testimony was inconsistent with the DOT because both jobs required a 7 certain level of dexterity as well as frequent handling and fingering 8 with two hands and the claimant had only one hand. 9 Fifth Circuit disagreed. On appeal, the claimant argued that the vocational expert s Id. at 146. The The court first noted that there was no 10 conflict between the vocational expert s testimony and the DOT because 11 the DOT did not state that the jobs required the use of both hands. 12 Id. 13 opportunity to object to the vocational expert s testimony that the 14 claimant could perform the jobs with one hand or to cross-examine him 15 on the issue and he chose not to. 16 under those circumstances, the ALJ properly relied on the expert s 17 testimony. The court further noted that the claimant s counsel had had the Id. The court concluded that, Id. 18 Like the claimant in Carey, Plaintiff did not object to the 19 vocational expert s testimony that Plaintiff could perform work that 20 required reaching despite the fact that Plaintiff s ability to reach 21 was limited. 22 reaching meant with both arms. 23 concludes that the ALJ did not err in interpreting the language of the 24 DOT or in relying on the vocational expert s testimony that Plaintiff 25 could work. Like the claimant in Carey, Plaintiff later argued that Like the court in Carey, the Court 26 27 1 28 (...continued) issued his decision. (AR 537-38.) But, clearly, that was too late. 6 1 Finally, Plaintiff argues that the ALJ erred in relying on the 2 vocational expert s testimony because it was plainly in conflict with 3 the DOT descriptions for these jobs and the vocational expert never 4 explained his justification for departing from the DOT, as he was 5 required to do under SSR 00-4p and Massachi v. Astrue, 486 F.3d 1149 6 (9th Cir. 2007). 7 Massachi and SSR 00-4p require an ALJ to inquire about conflicts 8 between the vocational expert s testimony and the DOT. 9 and the vocational expert testified that there were none. 10 11 (Joint Stipulation at 9-13.) Plaintiff is mistaken. The ALJ did so (AR 62, This was all that was required.2 77.) In the end, the Court concludes that the vocational expert s 12 testimony that Plaintiff could perform the three jobs he identified 13 did not conflict with the DOT and, therefore, the ALJ did not err in 14 relying on that testimony. 15 is affirmed and the case is dismissed with prejudice. For these reasons, the Agency s decision 16 IT IS SO ORDERED. 17 DATED: December 15, 2009 18 19 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 S:\PJW\Cases-Soc Sec\Fuller\Memorandum and Opinion.wpd 25 26 27 28 2 The vocational expert opined that Plaintiff could not perform 50% of the furniture rental consultant jobs due to his reaching limitations. (AR 62.) This signals to the Court that the vocational expert did consider how Plaintiff s limitations would affect his ability to perform all three jobs. 7

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