Ollie Kelly v. Michael J Astrue, No. 2:2011cv03295 - Document 19 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jay C. Gandhi. IT IS ORDERED THAT judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits. (bem)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 OLLIE KELLY, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 16 17 Defendant. ) Case No. CV 11-3295 JCG ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 18 19 I. 20 INTRODUCTION AND SUMMARY 21 On April 25, 2011, plaintiff Ollie Kelly ( Plaintiff ) filed a complaint against 22 defendant Michael J. Astrue ( Defendant ), the Commissioner of the Social Security 23 Administration, seeking review of a denial of supplemental security income benefits 24 ( SSI ). [Docket No. 3.] On October 31, 2011, Defendant filed his answer, along with a certified copy 25 26 of the administrative record. [Docket Nos. 13-15.] In sum, having carefully studied, inter alia, the parties joint stipulation and 27 28 the administrative record, the Court concludes that, as detailed below, there is 1 substantial evidence in the record, taken as a whole, to support the decision of the 2 Administrative Law Judge ( ALJ ). Thus, the Court affirms the Commissioner s 3 decision denying benefits. 4 II. 5 PERTINENT FACTUAL AND PROCEDURAL BACKGROUND Plaintiff, who was 51 years old on the date of his administrative hearing, is a 6 7 high school graduate. (See Administrative Record ( AR ) at 29, 33, 108, 165.) On May 27, 2008, Plaintiff filed for SSI, alleging that he has been disabled 8 9 since December 1, 2006 due to mental problems, hypertension, and asthma. (See 10 AR at 65, 108, 161.) On November 9, 2009, Plaintiff, represented by counsel, appeared and 11 12 testified at a hearing before an ALJ. (See AR at 29-63.) The ALJ also heard 13 testimony from Craig Rath, Ph.D., a medical expert ( ME ), and Kelly Winn14 Boaitey, a vocational expert ( VE ). (Id.; see also id. at 100, 102.) On February 4, 2010, the ALJ denied Plaintiff s request for benefits. (AR at 15 16 17-25.) Applying the familiar five-step sequential evaluation process, the ALJ 17 found, at step one, that Plaintiff has not engaged in substantial gainful activity since 18 his SSI application date. (Id. at 19.) At step two, the ALJ found that Plaintiff suffers from severe impairments 19 20 consisting of lumbar spondylosis, left knee pain, obesity and asthma[, and] mood 21 disorder, [not otherwise specified]. (AR at 19 (bold omitted).) At step three, the ALJ determined that the evidence did not demonstrate that 22 23 Plaintiff s impairments, either individually or in combination, meet or medically 24 equaled the severity of any listing set forth in the Social Security regulations.1/ (AR 25 at 19-20.) 26 27 28 1/ See 20 C.F.R. pt. 404, subpt. P, app. 1. 2 The ALJ then assessed Plaintiff s residual functional capacity2/ ( RFC ) and 1 2 determined that he can: 3 lift and carry up to 20 pounds occasionally and 10 pounds 4 frequently, and sit, stand and walk 6 hours in an 8-hour workday 5 . . . except [Plaintiff] must avoid even moderate exposure to 6 fumes, odors, dusts, gases and poor ventilation. His impairments 7 restrict him to limited public contact and inherently stressful 8 interpersonal situations. [Plaintiff] must avoid jobs with close 9 supervision and high production quotas, and is limited to object 10 oriented work. 11 (AR at 20 (bold omitted).) 12 The ALJ found, at step four, that Plaintiff has no past relevant work. (AR at 13 24.) 14 At step five, based on Plaintiff s RFC and the VE s testimony, the ALJ found 15 that there are jobs that exist in significant numbers in the national economy that 16 [Plaintiff] can perform, including small parts assembler, hand packager, and office 17 helper. (AR at 24-25 (bold omitted).) Thus, the ALJ concluded that Plaintiff was 18 not suffering from a disability as defined by the Act. (Id. at 17, 25.) 19 Plaintiff filed a timely request for review of the ALJ s decision, which was 20 denied by the Appeals Council. (AR at 1-3, 13.) The ALJ s decision stands as the 21 final decision of the Commissioner. 22 / / / 23 24 2/ Residual functional capacity is what a claimant can still do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 26 n. 5 (9th Cir. 1989). Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant s 27 residual functional capacity. Massachi v. Astrue, 486 F.3d 1149, 1151 n. 2 (9th 28 Cir. 2007). 3 1 III. 2 STANDARD OF REVIEW 3 This Court is empowered to review decisions by the Commissioner to deny 4 benefits. 42 U.S.C. ยง 405(g). The findings and decision of the Social Security 5 Administration must be upheld if they are free of legal error and supported by 6 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001, as 7 amended Dec. 21, 2001). If the court, however, determines that the ALJ s findings 8 are based on legal error or are not supported by substantial evidence in the record, 9 the court may reject the findings and set aside the decision to deny benefits. 10 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 11 242 F.3d 1144, 1147 (9th Cir. 2001). 12 Substantial evidence is more than a mere scintilla, but less than a 13 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such relevant 14 evidence which a reasonable person might accept as adequate to support a 15 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d 16 at 459. To determine whether substantial evidence supports the ALJ s finding, the 17 reviewing court must review the administrative record as a whole, weighing both 18 the evidence that supports and the evidence that detracts from the ALJ s 19 conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be affirmed 20 simply by isolating a specific quantum of supporting evidence. Aukland, 257 F.3d 21 at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the 22 evidence can reasonably support either affirming or reversing the ALJ s decision, 23 the reviewing court may not substitute its judgment for that of the ALJ. Id. 24 (quoting Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). 25 IV. 26 ISSUE PRESENTED 27 A single disputed issue is presented here: whether the ALJ properly 28 concluded at step five that Plaintiff could perform alternative work. (Joint Stip. at 54 1 11, 14-16.) 2 V. 3 DISCUSSION AND ANALYSIS 4 Plaintiff argues that the ALJ improperly relied on the VE s testimony that 5 Plaintiff can perform alternative work. Plaintiff contends that the error lies in the 6 identification of the cited work despite the ALJ limiting [Plaintiff] to no high 7 production quota work. (Joint Stip. at 5-6.) Plaintiff maintains that the VE is 8 incorrect in testifying that the identified three occupations do not have high 9 production quotas and are not assembly line work. (Id. at 6.) 10 A. Step-Five Determination 11 At step five of the sequential evaluation, the burden of proof shifts to the 12 Commissioner to identify specific jobs existing in substantial numbers in the 13 national economy that a claimant can perform despite his identified limitations. 14 Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). One method of 15 demonstrating the existence of these jobs is through the testimony of a VE, who can 16 assess the effect of any limitation on the range of work at issue, identify jobs which 17 are within the RFC, if they exist, and provide a statement of the incidence of such 18 jobs in the region where the claimant lives or in several regions of the country. 19 Social Security Ruling ( SSR ) 83-12,3/ 1983 WL 31253, at *3. Pursuant to SSR 00-4p, when a VE provides evidence about the requirements 20 21 of a job or occupation, the ALJ has an affirmative responsibility to ask about any 22 possible conflict between that testimony and the Dictionary of Occupational Titles 23 24 25 26 27 28 3/ The Commissioner issues Social Security Rulings [( SSRs )] to clarify the Act s implementing regulations and the agency s policies. SSRs are binding on all components of the [Social Security Administration]. SSRs do not have the force of law. However, because they represent the Commissioner s interpretation of the agency s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations. Holohan v. Massanari, 246 F.3d 1195, 1203 n. 1 (9th Cir. 2001) (internal citations omitted). 5 1 ( DOT ) and to obtain a reasonable explanation for any conflict.4/ 2000 WL 2 1898704, at *4. An ALJ may not rely on a VE s testimony without first inquiring 3 whether the testimony conflicts with the DOT. Massachi v. Astrue, 486 F.3d 1149, 4 1152 (9th Cir. 2007). 5 Neither the DOT nor the testimony of the VE automatically trumps when 6 there is a conflict. Massachi, 486 F.3d at 1153 (footnote omitted). Accordingly, 7 the ALJ must first determine whether a conflict exists. Id. If it does, the ALJ must 8 then determine whether the [VE s] explanation for the conflict is reasonable and 9 whether a basis exists for relying on the expert rather than the [DOT]. Id. 10 B. The ALJ Properly Relied on the VE s Testimony 11 The Court finds that the ALJ s step-five determination is supported by 12 substantial evidence and the ALJ properly relied on the VE s testimony. In assessing Plaintiff s RFC, the ALJ determined that Plaintiff must avoid 13 14 jobs with . . . high production quotas. (AR at 20.) In questioning the VE whether 15 Plaintiff could perform alternative work based on his RFC, the VE responded that 16 Plaintiff could perform the jobs of small products assembler, DOT 706.684-022, 17 1991 WL 679050, hand packager, DOT 559.687-074, 1991 WL 683797, and office 18 helper, DOT 239.567-010, 1991 WL 672232. (Id. at 55-57.) The VE stated that her 19 opinion was consistent with the [DOT]. (Id. at 58.) Further, when questioned by 20 Plaintiff s attorney whether the cited positions normally have production quotas or 21 some type of [certain pace] that they need to be performed at, the VE responded: 22 Well, any job is going to require that someone accomplish things 23 during the workday. It is not, though, a job where in an assembly 24 line and things are going on quickly, it s more of a bench type 25 26 4/ The Commissioner primarily relies on the DOT for information about the requirements of work in the national economy. Massachi, 486 F.3d at 1153 28 (internal quotation marks and footnote omitted) 27 6 1 thing where simple assembly is going. So yes there is production 2 but not high production quota as outlined by the doctor. 3 (Id. at 59.) 4 Here, Plaintiff fails to establish that there is a conflict between the VE s 5 testimony and the DOT. Although the small products assembler job refers to 6 performing work at [a] bench as [a] member of [an] assembly group, DOT 7 706.684-022, neither the hand packager or office helper positions explicitly define 8 the jobs as involving an assembly line, as asserted by Plaintiff. (See Joint Stip. at 6.) 9 More importantly, there is no requirement of any production expectancy affiliated 10 with any of the jobs listed by the VE. See DOT 706.684-022 (small products 11 assembler); DOT 559.687-074 (hand packager); DOT 239.567-010 (office helper); 12 see, e.g., Scott v. Comm r, 2011 WL 720198, at *9 (N.D. Ohio 2011) (explaining 13 that the job of hand packager does not require an ability to maintain concentration, 14 persistence or pace and requires only a markedly low aptitude ability for 15 performing repetitive or short cycle work but concluding that the job does not 16 require any production expectancy ); Young v. Apfel, 40 Fed.Appx. 157, 161-63 17 (6th Cir. 2002) (affirming ALJ s conclusion that bench assembly and hand packing 18 jobs did not involve high production quotas). 19 Further, testimony from the VE was elicited explaining the production 20 requirements of the jobs cited. In fact, the VE stated that the jobs of small products 21 assembler, hand packager, and office helper require production but not high 22 production quota[s]. (AR at 59.) The VE also reported that the jobs require only 23 simple assembly. (Id.) Accordingly, the VE s statements demonstrate that the VE 24 considered Plaintiff s specific limitations and the specific DOT descriptions of these 25 jobs, and substantial evidence supports the ALJ s conclusion that the VE s 26 descriptions did not conflict with the DOT descriptions. See also Massachi, 486 27 F.3d at 1154 n. 19 (If ALJ did not ask the VE whether her testimony conflicted with 28 the DOT, error could be harmless, were there no conflict, or if the [VE] had 7 1 provided sufficient support for her conclusion so as to justify any potential 2 conflicts[.] ). 3 Thus, since there is no apparent conflict between the VE s testimony and the 4 DOT, the ALJ was not required to provide a reasonable explanation for relying on 5 that part of the VE s testimony. See SSR 00-4p, 2000 WL 1898704, at *4 ( If the 6 VE s . . . evidence appears to conflict with the DOT, the adjudicator will obtain a 7 reasonable explanation for the apparent conflict. ) (emphasis added). 8 Based on the foregoing, IT IS ORDERED THAT judgment shall be entered 9 AFFIRMING the decision of the Commissioner denying benefits. 10 11 Dated: April 26, 2012 ____________________________________ 12 Hon. Jay C. Gandhi 13 United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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