Jerry L Slye v. Michael J Astrue, No. 2:2011cv02401 - Document 23 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jean P Rosenbluth, AFFIRMING THE COMMISSIONER. (See document for details.) (rla)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JERRY SLYE, Plaintiff, 12 13 vs. 14 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. 16 ) Case No. CV 11-2401-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) AFFIRMING THE COMMISSIONER ) ) ) ) ) ) ) 17 18 I. 19 PROCEEDINGS Plaintiff seeks review of the Commissioner s final decision 20 denying his application for Supplemental Security Income ( SSI ). 21 The parties consented to the jurisdiction of the undersigned U.S. 22 Magistrate Judge pursuant to 28 U.S.C. § 636(c). This matter is 23 before the Court on the parties Joint Stipulation, filed January 24 19, 2012. The Court has taken the Joint Stipulation under 25 submission without oral argument. For the reasons stated below, 26 the Commissioner s decision is affirmed and this action is 27 dismissed. 28 II. BACKGROUND 1 1 Plaintiff was born on November 17, 1959. 2 Record ( AR ) 118.) (Administrative He has an 11th-grade education. (AR 126.) 3 He claims to have been disabled since January 1, 1999, from 4 injuries sustained when he was shot in the neck during a 5 carjacking. 6 (AR 126, 141, 162-63.) On March 6, 2008, Plaintiff filed an application for SSI. 7 (AR 108-13.) After Plaintiff s application was denied, he 8 requested a hearing before an Administrative Law Judge ( ALJ ), 9 which was held on August 27, 2009. (AR 28-40.) Plaintiff 10 appeared with counsel and testified on his own behalf. (Id.) On 11 October 13, 2009, the ALJ denied Plaintiff s claim, determining 12 that he had the severe impairments of degenerative disc disease, 13 facet arthritis in the lumbar spine, status post gunshot wound in 14 left scapular area, status post thoracotomy/sternotomy and chest 15 tubes, left shoulder pain, atypical chest pain, and posttraumatic 16 stress disorder (AR 21) but was not disabled because he had the 17 residual functional capacity ( RFC )1 to perform light work . . 18 . with the following limitations: right hand dominant with left, 19 non-dominant upper extremity limited to occasional reaching 20 overhead or laterally; avoid environments where speech is a 21 critical factor; ability to work with public and adapt to normal 22 workplace stressors; some difficulty with change as long as not 23 drastic changes (AR 22). The ALJ found, based on the Vocational 24 Expert ( VE ) s testimony, that Plaintiff had the RFC to perform 25 26 1 RFC is what a claimant can still do despite existing 27 exertional and nonexertional limitations. 20 C.F.R. § 416.945(a); see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 28 (9th Cir. 1989). 2 1 the job of office helper. (AR 26.) On January 20, 2011, the 2 Appeals Council denied Plaintiff s request for review. (AR 1-4.) 3 This action followed. 4 Plaintiff raises one disputed issue: whether the ALJ 5 properly determined that Plaintiff could perform alternative work 6 activity. (J. Stip. at 4.) 7 III. STANDARD OF REVIEW 8 Pursuant to 42 U.S.C. § 405(g), a district court may review 9 the Commissioner s decision to deny benefits. The Commissioner s 10 or ALJ s findings and decision should be upheld if they are free 11 of legal error and are supported by substantial evidence based on 12 the record as a whole. § 405(g); Richardson v. Perales, 402 U.S. 13 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971); Parra v. 14 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence 15 means such evidence as a reasonable person might accept as 16 adequate to support a conclusion. Richardson, 402 U.S. at 401; 17 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It 18 is more than a scintilla but less than a preponderance. 19 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 20 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether 21 substantial evidence supports a finding, the reviewing court 22 must review the administrative record as a whole, weighing both 23 the evidence that supports and the evidence that detracts from 24 the Commissioner s conclusion. 25 720 (9th Cir. 1998). Reddick v. Chater, 157 F.3d 715, If the evidence can reasonably support 26 either affirming or reversing, the reviewing court may not 27 substitute its judgment for that of the Commissioner. 28 720-21. 3 Id. at 1 2 IV. THE EVALUATION OF DISABILITY 3 People are disabled for purposes of receiving Social 4 Security benefits if they are unable to engage in any substantial 5 gainful activity owing to a severe physical or mental impairment 6 that is expected to result in death or which has lasted, or is 7 expected to last, for a continuous period of at least 12 months. 8 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 9 (9th Cir. 1992). 10 A. 11 The Commissioner (or ALJ) follows a five-step sequential The Five-Step Evaluation Process 12 evaluation process in assessing whether a claimant is disabled. 13 20 C.F.R. § 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 14 (9th Cir. 1995) (as amended Apr. 9, 1996). In the first step, 15 the Commissioner must determine whether the claimant is currently 16 engaged in substantial gainful activity; if so, the claimant is 17 not disabled and the claim is denied. § 416.920(a)(4)(i). If 18 the claimant is not engaged in substantial gainful activity, the 19 second step requires the Commissioner to determine whether the 20 claimant has a severe impairment or combination of impairments 21 significantly limiting his ability to do basic work activities; 22 if not, a finding of nondisability is made and the claim is 23 denied. § 416.920(a)(4)(ii). If the claimant has a severe 24 impairment or combination of impairments, the third step requires 25 the Commissioner to determine whether the impairment or 26 combination of impairments meets or equals an impairment in the 27 Listing of Impairments ( Listing ) set forth at 20 C.F.R., Part 28 404, Subpart P, Appendix 1; if so, disability is conclusively 4 1 presumed and benefits are awarded. § 416.920(a)(4)(iii). If the 2 claimant s impairment or combination of impairments does not meet 3 or equal an impairment in the Listing, the fourth step requires 4 the Commissioner to determine whether the claimant has sufficient 5 RFC to perform his past work; if so, the claimant is not disabled 6 and the claim is denied. § 416.920(a)(4)(iv). The claimant has 7 the burden of proving that he is unable to perform past relevant 8 work. Drouin, 966 F.2d at 1257. If the claimant meets that 9 burden, a prima facie case of disability is established. Id. If 10 that happens or if the claimant has no past relevant work, the 11 Commissioner then bears the burden of establishing that the 12 claimant is not disabled because he can perform other substantial 13 gainful work in the national economy. § 416.920(a)(4)(v). That 14 determination comprises the fifth and final step in the 15 sequential analysis. § 416.920; Lester, 81 F.3d at 828 n.5; 16 Drouin, 966 F.2d at 1257. 17 B. 18 At step one, the ALJ found that Plaintiff had not engaged in The ALJ s Application Of The Five-Step Process 19 any substantial gainful activity since the date of his 20 application for SSI.2 (AR 21.) At step two, the ALJ concluded 21 that Plaintiff has the following severe impairments: 22 degenerative disc disease, facet arthritis in the lumbar spine, 23 status post gunshot wound in left scapular area, status post 24 thoracotomy/sternotomy and chest tubes, left shoulder pain, 25 atypical chest pain, and posttraumatic stress disorder. (Id.) 26 27 28 2 The ALJ lists this date as February 8, 2008. (AR 21.) This appears to be a typographical error, however, as the record shows Plaintiff applied for SSI on March 6, 2008. (AR 108.) 5 1 At step three, the ALJ found that Plaintiff did not have an 2 impairment or combination of impairments that met or equaled any 3 of the impairments in the Listing. (Id.) At step four, the ALJ 4 found that Plaintiff has the residual functional capacity to 5 perform light work as defined in 20 C.F.R. 416.967(b) with the 6 following limitations: right hand dominant with left, non7 dominant upper extremity limited to occasional reaching overhead 8 or laterally; avoid environments where speech is a critical 9 factor; ability to work with public and adapt to normal workplace 10 stressors; some difficulty with change as long as not drastic 11 changes. (AR 22.) At step five, the ALJ found that Plaintiff 12 was unable to perform his past work as a truck driver but that he 13 retained the RFC to perform the job of office helper. 14 (AR 26.) The ALJ relied on the hearing testimony of the VE in holding 15 that Plaintiff was capable of performing the office helper job. 16 At the hearing the ALJ posed the following hypothetical to the 17 VE: 18 Hypothetically we have an individual who can perform 19 light work as normally known by SS but it would be 20 further reduced as follows. He would with his You re 21 right-handed, are you not, sir? 22 [Plaintiff:] 23 Okay. [¶] So is the hypothetical person. Yes. His left, 24 non-dominant upper extremity would limit him to only 25 occasionally reaching, either above head or laterally. 26 He also should avoid environments where speech would be 27 a critical factor because the hypothetical person, as 28 you ve heard this morning with the claimant, has a very 6 1 weak, hoarse voice. 2 the public, could adapt to normal workplace stresses and 3 would have some difficulties with change, but were they 4 not 5 reasonably. In that instance this person obviously could 6 not perform the claimant s past relevant work. But could 7 he, in your opinion, perform light, unskilled work of any 8 nature? drastic 9 (AR 36-37.) He also would be able to work with changes could generally handle them The VE responded that yes, Plaintiff could perform 10 light, unskilled work. (AR 37.) The VE gave the following 11 examples of work Plaintiff would be able to perform: 12 The first one is that of an office helper. The DOT 13 number is 239.567-010. It s considered light per the DOT 14 and has an SVP of 2, which is unskilled. 15 approximately five to 6,000 jobs in the regional economy 16 and when specifically, the regional economy I m talking 17 about the greater Los Angeles area nationally there are 18 approximately seven to 800,000 nationally. There are 19 A 20 attendant. 21 with 22 approximately five to 6,000 jobs in the regional economy 23 and again, seven to 800,000 nationally. an second job would be that of DOT number is 915.473-010. SVP of 2, which is a parking lot It s also light unskilled. There are 24 In both of these jobs they re as long as you can 25 use it doesn t require bilateral use of the hands. And 26 if it s on an occasional basis I would assume it could be 27 used as a helper to the other non-disabled arm. 28 could perform both jobs. So [he] There is no overhead reaching. 7 1 And because these are unskilled jobs, would not would 2 you know, there would be normal workday stresses. 3 (AR 37-38.) 4 V. DISCUSSION 5 Plaintiff contends that the ALJ erred in finding that he 6 could perform the job of office helper3 because of two alleged 7 conflicts between the Dictionary of Occupational Titles ( DOT ) 8 description of that job and Plaintiff s functional limitations. 9 Plaintiff contends that the office helper job requires frequent 10 (existing from over 1/3 up to 2/3 of the time) use of both upper 11 extremities to reach, which conflicts with the ALJ s 12 hypothetical to the VE. (J. Stip. at 6.) Additionally, 13 Plaintiff contends that it requires more than minimal speaking, 14 which also conflicts with the hypothetical. (Id.) Plaintiff 15 argues that the ALJ failed to identify and resolve these 16 conflicts between the VE s testimony and the DOT description, 17 thus requiring reversal of the ALJ s decision. 18 (Id. at 7-13.) An ALJ must ask a hypothetical question to a VE that is 19 based on medical assumptions supported by substantial evidence in 20 the record and that reflects all of the plaintiff s limitations. 21 Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995). When a VE 22 provides evidence about the requirements of a job, the ALJ has a 23 responsibility to ask about any possible conflict between that 24 evidence and the DOT. See SSR 00-4p, 2000 WL 1898704, at *4; 25 26 3 Plaintiff also raises various arguments as to the VE s 27 testimony that he could perform the job of parking lot attendant. Because the ALJ did not find that Plaintiff could perform that 28 job, however, the Court does not address it. 8 1 Massachi v. Astrue, 486 F.3d 1149, 1152-54 (9th Cir. 2007) 2 (holding that application of SSR 00-4p is mandatory). An ALJ s 3 failure to do so is procedural error, although the error is 4 harmless if no actual conflict exists or the VE provided 5 sufficient evidence to support the conclusion. 6 Id. at 1154 n.19. Regarding the speaking requirement, Plaintiff contends that 7 the ALJ erred in failing to inquire about a potential conflict 8 between the VE s testimony and the DOT with respect to how much 9 Plaintiff would be required to speak in the job of office helper. 10 Although the ALJ did fail to inquire about any potential 11 conflict, the error was harmless. The ALJ recognized that 12 Plaintiff has severe voice problems and that Plaintiff s voice 13 is hoarse and partially dysphonic, and he included in his 14 hypothetical to the VE that Plaintiff should avoid environments 15 where speech would be a critical factor. 16 165.)4 (AR 24, 31-32, 37, The DOT states that the office helper position requires 17 talking only occasionally up to 1/3 of the time. 18 239.567-010, available at 1991 WL 672232. DOT It further states that 19 Speaking-Signaling is a [n]ot [s]ignificant part of the job. 20 Id. Thus, speech is not a critical factor in that position. 21 Because there is no actual or potential conflict between the DOT 22 description and the VE s testimony or the ALJ s RFC finding, the 23 ALJ s failure to inquire as to potential conflicts was harmless. 24 See Massachi, 486 F.3d at 1154 n.19. 25 Regarding the reaching requirement, Plaintiff contends 26 27 28 4 At least one doctor indicated that Plaintiff s voice, while husky and hoarse, slowed and soft, was also clear and coherent. (AR 171.) 9 1 that the DOT job description of office helper require[s] 2 frequently reaching with both arms in all directions and thus 3 conflicts with the ALJ s RFC assessment limiting him to only 4 occasional reaching and no overhead reaching with the left arm. 5 (J. Stip. at 7.) Plaintiff is incorrect that the DOT job 6 description requires bilateral reaching. The DOT definition of 7 office helper states that the job requires frequent reaching, 8 handling, and fingering but does not specify whether both hands 9 or simply one hand may be used. 10 at 1991 WL 672232. See DOT 239.567-010, available The VE testified that [t]here is no overhead 11 reaching and the job doesn t require bilateral use of the 12 hands. (AR 38.) Courts have routinely held that a job 13 requiring reaching, handling, or fingering does not necessarily 14 involve the use of both hands absent affirmative evidence to the 15 contrary. See McConnell v. Astrue, No. EDCV 08-667 JC, 2010 WL 16 1946728, at *7 (C.D. Cal. May 10, 2010) (collecting cases); 17 Gutierrez v. Astrue, No. CV 10-9690-PJW, 2012 WL 234366, at *2 18 (C.D. Cal. Jan. 24, 2012) ( [G]enerally speaking, the requirement 19 that an employee frequently use his hands to perform a job does 20 not mean that he has to be able to use both hands. ). 21 Similarly, there is no conflict between the DOT job 22 description requiring frequent reaching, see DOT 239.567-010, 23 available at 1991 WL 672232, and Plaintiff s RFC because it is 24 undisputed that Plaintiff is right-handed and has full use of his 25 right arm. (AR 36, 164 (noting right shoulder flexion is within 26 normal limits ).) The RFC specifically limited only the left, 27 non-dominant upper extremity to occasional reaching; there was 28 no such limitation on the right hand. 10 (AR 22.) Similarly, the 1 hypothetical posed to the VE also limited only the left, non2 dominant upper extremity to occasional reaching. (AR 37.) 3 Thus, there was no conflict between the RFC and the DOT with 4 respect to the reaching requirement, because Plaintiff could 5 frequently reach with his right hand. See McConnell, 2010 WL 6 1946728, at *7 ( [S]ince the DOT does not expressly state that 7 the jobs of host and information clerk can be performed by a 8 claimant who lacks the use of one arm, the ALJ appropriately 9 obtained the testimony of a vocational expert to assist in the 10 step five determination. ). Any error in not asking about a 11 potential conflict thus was harmless. 12 1154 n.19. See Massachi, 486 F.3d at Plaintiff s contentions do not warrant remand. 13 VI. CONCLUSION 14 Consistent with the foregoing, and pursuant to sentence four 15 of 42 U.S.C. § 405(g),5 IT IS ORDERED that judgment be entered 16 AFFIRMING the decision of the Commissioner and dismissing this 17 action with prejudice. IT IS FURTHER ORDERED that the Clerk 18 serve copies of this Order and the Judgment on counsel for both 19 parties. 20 21 22 DATED: February 9, 2012 JEAN ROSENBLUTH U.S. MAGISTRATE JUDGE 23 24 25 26 27 28 5 This sentence provides: The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. 11
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