Ronald R Suschank v. Michael J Astrue, No. 2:2011cv03620 - Document 24 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION and ORDER by Magistrate Judge Marc L. Goldman: For the reasons discussed below, the decision of the Commissioner is affirmed and the action is dismissed with prejudice. (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 WESTERN DIVISION 11 12 RONALD SUSCHANK, 13 ) ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff, 14 v. 15 MICHAEL J. ASTRUE, Commissioner of Social Security, 16 17 Defendant. 18 Case No. CV 11-3620-MLG MEMORANDUM OPINION AND ORDER 19 20 Plaintiff Ronald 21 Commissioner s 22 Benefits ( DIB ) and Supplemental Security Income ( SSI ) benefits under 23 the Social Security Act. For the reasons discussed below, the decision 24 of the Commissioner is affirmed and the action is dismissed with 25 prejudice. 26 // 27 // 28 // denial Suschank of his seeks application judicial for review Disability of the Insurance 1 I. Factual and Procedural History 2 Plaintiff was born on November 10, 1961. (Administrative Record 3 ( AR ) at 38.) He has a high school education and has work experience as 4 a sheet metal fabricator and maintenance worker. (AR at 121, 125.) 5 Plaintiff filed an application for DIB and SSI benefits on August 16, 6 2004, alleging that he had been disabled since July 1, 2002, due to a 7 heart 8 hernia/testicle surgeries. (AR at 120.) Plaintiff s application was 9 denied initially on March 15, 2005 and upon reconsideration on May 19, 10 condition, seizures, lung and breathing problems and 2005. (AR at 43-47, 52-56.) 11 An administrative hearing was held on October 4, 2006 before 12 Administrative Law Judge ( ALJ ) Peggy M. Zirlin. (AR at 345-371.) ALJ 13 Zirlin issued an unfavorable decision on October 24, 2006. (AR at 12- 14 30.) Upon the stipulation of the parties, the matter was remanded to the 15 ALJ on April 25, 2008. (AR at 410-417.) A second administrative hearing 16 was held on July 1, 2009. (AR at 530-540.) 17 On August 27, 2009, ALJ Zirlin again denied Plaintiff s 18 applications for benefits. (AR at 378-404.) The ALJ found that Plaintiff 19 had not engaged in substantial gainful activity during the relevant time 20 period. (AR at 400.) The ALJ further found that the medical evidence 21 established 22 impairments: status post myocardial infarction with stent placement in 23 2000, early onset arteriorsclerotic cardiovascular disease, status post 24 bilateral inguinal hernias, recurrent cysts in the testicles with 25 multiple surgical treatment, seizure disorder, obesity, and chronic 26 bronchitis secondary to cigarette smoking. (Id.) However, the ALJ 27 concluded that Plaintiff s impairments did not meet, or were not 28 medically equal to, one of the impairments listed in 20 C.F.R., Part that Plaintiff suffered 2 from the following severe 1 404, Subpart P, Appendix 1. (AR 17.) 2 The ALJ concluded that Plaintiff retained the residual functional 3 capacity ( RFC ) to perform light/sedentary work as defined in 20 CFR 4 404.1567(b) and 416.967(b) as follows: lift and carry less than 5 5 pounds frequently and occasionally, stand and walk 6/8 hours, sit 6/8 6 hours, occasionally climb, balance, stoop, kneel, crouch and crawl and 7 no exposure to unprotected heights or hazardous machinery. Given the 8 smoking history and his lung testing, I also find that he should avoid 9 concentrated 10 exposure to fumes, odors, dusts, gasses and poor ventilation. (AR at 400-401.) 11 The ALJ found that Plaintiff was unable to perform his past 12 relevant work as a sheet metal fabricator and maintenance worker. (AR at 13 403.) However, the ALJ further found, based on the vocational expert s 14 ( VE ) testimony at the first administrative hearing, that there were 15 jobs that exist in significant numbers in the national economy that 16 Plaintiff could perform, such as assembler, reception/information clerk, 17 cashier II and information clerk. (AR at 404.) Accordingly, the ALJ 18 concluded that Plaintiff was not disabled within the meaning of the 19 Social Security Act. (Id.) 20 On February 28, 2011, the Appeals Council denied review (AR at 372- 21 374), and Plaintiff timely commenced this action for judicial review. On 22 May 11, 2012, the parties filed a Joint Stipulation ( Joint Stip. ) of 23 disputed facts and issues. Plaintiff contends that the ALJ erred at step 24 5 of the sequential evaluation by finding that Plaintiff could perform 25 the jobs of assembler, reception/information clerk, cashier II and 26 information clerk. (Joint Stip. at 3.) Plaintiff asks the Court to 27 reverse and award benefits, or in the alternative, remand for further 28 administrative proceedings. (Joint 3 Stip. at 19.) The Commissioner 1 requests that the ALJ s decision be affirmed. (Joint Stip. at 20.) 2 3 II. Standard of Review 4 Under 42 U.S.C. § 405(g), a district court may review the Social 5 Security Commissioner s decision to deny benefits. The Court must uphold 6 the Social Security Administration s disability determination unless it 7 is not supported by substantial evidence or is based on legal error. 8 Ryan v. Comm r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)(citing 9 Stout v. Comm r of Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 10 2006)). Substantial evidence means more than a scintilla, but less than 11 a preponderance; it is evidence that a reasonable person might accept 12 as adequate to support a conclusion. Lingenfelter v. Astrue, 504 F.3d 13 1028, 1035 (9th Cir. 2007)(citing Robbins v. Soc. Sec. Admin., 466 F.3d 14 880, 882 (9th Cir. 2006)). To determine whether substantial evidence 15 supports a finding, the reviewing court must review the administrative 16 record as a whole, weighing both the evidence that supports and the 17 evidence that detracts from the Commissioner s conclusion. Reddick v. 18 Chater, 157 F.3d 715, 720 (9th Cir. 1996). If the evidence can support 19 either affirming or reversing the ALJ s conclusion, the reviewing court 20 may not substitute [its] judgment for that of the ALJ. Robbins, 466 21 F.3d at 882. 22 23 III. Discussion 24 Plaintiff contends that the ALJ improperly relied upon the VE s 25 testimony that Plaintiff could perform the identified jobs because those 26 jobs, as defined by the Dictionary of Occupational Titles ( DOT ), 27 require lifting a greater amount of weight than the ALJ found Plaintiff 28 capable of lifting in the ALJ s assessment of Plaintiff s RFC. (Joint 4 1 Stip. at 4.) The ALJ based her conclusion that Plaintiff could perform 2 a significant number of jobs in the economy on the testimony of the VE. 3 (AR at 366-367.) 4 5 At the administrative hearing, the ALJ posed the following hypothetical question to the VE, preceded by a caveat: 6 [A]ny job you identify in any hypothetical must be consistent 7 with the job as it is described in the DOT. If there is any 8 difference, you must explain the discrepancy or reason for the 9 discrepancy and your source of information. Please assume the 10 existence 11 Claimant, who has the same educational background, and the 12 same past work experience. Assume further this individual can, 13 as indicated, in Exhibits 5F and 6F, lift and carry up to five 14 pounds frequently and occasionally, stand and/or walk about 15 six hours in an eight-hour workday, sit about six hours in an 16 eight-hour 17 climbing, balancing, 18 crawling. Avoid 19 hazardous machinery. Would such an individual be able to do 20 the past work? 21 of an individual workday all both who with is normal stooping, exposure the to same breaks. kneeling, age as Occasional crouching unprotected the heights and and (AR at 366.) 22 The VE responded that Plaintiff would not be able to perform his 23 past relevant work but concluded that Plaintiff would be able to 24 perform several jobs in the national economy, including the sedentary 25 jobs of assembler (DOT 734.687-018) and reception/information clerk 26 (DOT 237.367-046) and the light jobs of cashier II (DOT 211.462-010) 27 and information clerk (DOT 237.367-018). (AR at 366-367.) 28 // 5 1 Plaintiff corrrectly claims that the VE s testimony is 2 inconsistent with the DOT.1 However, the ALJ questioned the VE about 3 the apparent inconsistency between the VE s testimony and the DOT. When 4 the VE was questioned regarding whether the two light jobs require 5 lifting at least ten pounds, the VE stated, [T]he jobs that I am 6 providing in the light duty while they are considered light duty, they 7 are also jobs that intrinsically do not require much in the way of any 8 lifting and carrying and certainly would be well within the five pound 9 limitation. (AR at 367.) Similarly, when the ALJ asked whether the two 10 sedentary jobs require lifting up to ten pounds, the VE replied, No, 11 that would be while the Dictionary of Occupational Titles say [sic] 12 that you may lift up to 10 pounds, the vast majority of jobs that are 13 considered sedentary do not require any lifting whatsoever, Your 14 Honor. (Id.) 15 Although evidence provided by a VE is generally expected to be 16 consistent with the DOT, [n]either the DOT nor the VE . . . evidence 17 automatically trumps when there is a conflict. Social Security 18 Ruling ( SSR ) 00-4p; Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 19 2007). Rather, the DOT raises a rebuttable presumption as to a job 20 classification, and [a]n ALJ may rely on expert testimony which 21 contradicts the DOT, but only insofar as the record contains persuasive 22 evidence to support the deviation. Johnson v. Shalala, 60 F.3d 1428, 23 1435 (9th Cir. 1995); Massachi, 486 F.3d at 1153 (when a conflict 24 between a VE s testimony and the DOT arises, the ALJ must make an 25 26 27 28 1 Plaintiff also claims that the ALJ erred in relying on the VE testimony from the 2006 hearing. However, Plaintiff has failed to demonstrate that this was legal error or that circumstances had changed between the hearings that would have let to a different result had a VE testified at the 2009 hearing. 6 1 inquiry with the VE and then determine whether the VE s explanation 2 for the conflict is reasonable and whether a basis exists for relying 3 on the expert rather than the [DOT] ). 4 Here, the ALJ specifically questioned the VE about whether any of 5 the requirements of the four jobs identified by the VE conflicted with 6 the DOT. (AR at 366.) The VE explained the deviation, noting that 7 although the DOT classified the jobs as requiring lifting more than 8 five pounds, the jobs he identified involved very little lifting in 9 actual practice, a conclusion based upon his expert knowledge of the 10 specific characteristics and requirements of each of these jobs. (AR 11 at 366, 367.) See Johnson, 60 F.3d at 1435 ( Introduction of evidence 12 of the characteristics of specific jobs available in the local area 13 through the testimony of a vocational expert is appropriate, even 14 though the job traits may vary from the way the job title is classified 15 in the DOT. ) The ALJ was entitled to rely on the VE s expertise and 16 persuasive 17 Schweiker, 694 F.2d 639, 643 (9th Cir. 1982) (essential role of a VE 18 is 19 probabilities ). There was no error. to testimony translate[] in deviating factual from scenarios the into DOT. See realistic Sample job v. market 20 Plaintiff also claims that because of his limitation to lifting 21 less than five pounds, the VE should have further eroded the number of 22 jobs available in response to the ALJ s hypothetical question. (Joint 23 Stip. at 9.) The VE noted the number of jobs available in the local and 24 national economy: (1) assembler with 2,800 jobs locally and 67,000 jobs 25 nationally; (2) reception/information clerk with 6,500 jobs locally and 26 102,000 jobs nationally; (3) information clerk with 550 jobs locally 27 and 10,100 jobs nationally; and (4) cashier II with 21,200 jobs locally 28 and 500,000 jobs nationally (eroded 50% by the VE due to the RFC s 7 1 limitation to no concentrated exposure to fumes, odors, dusts, gasses 2 or poor ventilation). (AR at 366, 367.) 3 As discussed above, the VE explained the deviation from the DOT, 4 explaining that the jobs he identified involved lifting little, if any, 5 weight. Therefore, there was no need for the VE to erode those jobs to 6 accommodate Plaintiff s limitation of lifting less than five pounds 7 because those jobs in practice do not require lifting any greater 8 weight. However, even assuming without deciding that the VE should have 9 further eroded the job base, there were still significant numbers of 10 jobs that Plaintiff could perform in the local and national economy. 11 See, e.g., Moncada v. Chater, 60 F.3d 521, 524 (9th Cir. 1995) (finding 12 that 2,300 jobs in San Diego County constitutes a significant number 13 within the region so as to meet the requirements of 42 U.S.C. § 14 423(d)(2)(A)); Barker v. Secretary, 882 F.2d 1474, 1478-79 (9th Cir. 15 1989) (finding that 1,266 jobs in the Los Angeles/Orange County area 16 constitutes a significant number); but see Beltran v. Astrue, --- F.3d 17 ---, 2012 WL 1526257 at *3 (9th Cir. May 2, 2012)(finding 135 jobs 18 regionally and 1,680 jobs nationally not to be a significant number). 19 Thus, any possible error was harmless, see Burch v. Barnhart, 400 F.3d 20 676, 679 (9th Cir. 2005), and the ALJ properly deferred to the VE in 21 determining the existence and number of jobs that Plaintiff could 22 perform. 23 Accordingly, the ALJ s finding at step five of the sequential 24 process that Plaintiff is capable of performing other substantial 25 gainful activity is supported by substantial evidence in the record, 26 and Plaintiff is not entitled to relief. 27 // 28 // 8 1 2 3 IV. Conclusion For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. 4 5 DATED: May 22, 2012 6 7 8 9 ____________________________ MARC L. GOLDMAN United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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