Ronald Soto v. Michael J. Astrue, No. 5:2010cv00723 - Document 15 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Plaintiff Ronald Soto (Soto) filed a Complaint on May 19, 2010. Pursuant to 28 U.S.C. § 636(c), the parties filed consents to proceed before the magistrate judge on June 3 an d 21, 2010 (Dkt. Nos. 8, 9.) On January 19, 2011, the parties filed a Joint Stipulation (JS) that addressed the disputed issues. The Court has taken the matter under submission without oral argument. Having reviewed the entire file, the Court affirms the decision of the Commissioner. IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. (mp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RONALD SOTO Plaintiff, 12 v. 13 14 MICHAEL J. ASTRUE, Commissioner of Social Security 15 Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) No. EDCV 10-723 AGR MEMORANDUM OPINION AND ORDER Plaintiff Ronald Soto ( Soto ) filed a Complaint on May 19, 2010. Pursuant to 28 17 18 U.S.C. § 636(c), the parties filed consents to proceed before the magistrate judge on 19 June 3 and 21, 2010 (Dkt. Nos. 8, 9.) On January 19, 2011, the parties filed a Joint 20 Stipulation ( JS ) that addressed the disputed issues. The Court has taken the matter 21 under submission without oral argument. Having reviewed the entire file, the Court affirms the decision of the 22 23 Commissioner. 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. 2 PROCEDURAL BACKGROUND 3 On July 3, 2007, Soto filed applications for disability insurance benefits and 4 supplemental security income benefits. Administrative Record ( AR ) 9. In both 5 applications, Soto alleged a disability onset date of October 5, 2006. Id. The 6 applications were denied initially and on reconsideration. AR 9, 47-51. Soto requested 7 a hearing before an Administrative Law Judge ( ALJ ). AR 52. On April 21, 2009, an 8 ALJ conducted a hearing at which Soto, a medical expert, and a vocational expert 9 ( VE ) testified. AR 19-36. On July 23, 2009, the ALJ issued a decision denying 10 benefits. AR 9-18. On April 17, 2010, the Appeals Council denied the request for 11 review. AR 1-3. This action followed. 12 II. 13 STANDARD OF REVIEW Pursuant to 42 U.S.C. § 405(g), this Court reviews the Commissioner s decision 14 15 to deny benefits. The decision will be disturbed only if it is not supported by substantial 16 evidence, or if it is based upon the application of improper legal standards. Moncada v. 17 Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th 18 Cir. 1992). In this context, substantial evidence means more than a mere scintilla but less 19 20 than a preponderance it is such relevant evidence that a reasonable mind might 21 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 22 determining whether substantial evidence exists to support the Commissioner s 23 decision, the Court examines the administrative record as a whole, considering adverse 24 as well as supporting evidence. Drouin, 966 F.2d at 1257. Where the evidence is 25 susceptible to more than one rational interpretation, the Court must defer to the decision 26 of the Commissioner. Moncada, 60 F.3d at 523. 27 /// 28 /// 2 1 III. 2 DISCUSSION 3 A. Disability 4 A person qualifies as disabled and is eligible for benefits, "only if his physical or 5 mental impairment or impairments are of such severity that he is not only unable to do 6 his previous work but cannot, considering his age, education, and work experience, 7 engage in any other kind of substantial gainful work which exists in the national 8 economy." Barnhart v. Thomas, 540 U.S. 20, 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 9 (2003). 10 B. The ALJ s Findings 11 The ALJ found Soto has the following severe impairments: psychotic disorder 12 substance induced and mood disorder substance induced. AR 12. If Soto stopped the 13 substance abuse, he would have the residual functional capacity ( RFC ) to perform the 14 full range of medium work. AR 14. He could perform simple repetitive tasks, in a non15 public setting; and work with moderate limitation in ability to do the following: carry out 16 detailed instructions, maintain attention and concentration for extended periods, interact 17 appropriately with the general public, and set realistic goals or make plans independently 18 of others. Id. The ALJ found that if Soto stopped the substance abuse, he would be 19 capable of performing past relevant work as a store laborer as it is actually and generally 20 performed. AR 17. 21 C. Past Relevant Work 22 Soto contends the ALJ erred by failing to determine the extent of Soto s contact 23 with the public in performing his past work as a store laborer. 24 At step four of the sequential analysis, the claimant has the burden to prove that 25 he cannot perform his prior relevant work either as actually performed or as generally 26 performed in the national economy. Carmickle v. Comm r Soc. Sec. Admin., 533 F.3d 27 1155, 1166 (9th Cir. 2008) (citation omitted). Although the burden of proof lies with the 28 claimant at step four, the ALJ still has a duty to make the requisite factual findings to 3 1 support his conclusion. Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001). The ALJ 2 must make specific findings as to the claimant s residual functional capacity, the 3 physical and mental demands of the past relevant work, and the relation of the residual 1 4 functional capacity to the past work. Id. at 845; Social Security Ruling 82-62; see also 5 20 C.F.R. §§ 404.1520(e), 416.920(e). The ALJ is not required to make explicit findings 6 as to whether a claimant can perform past relevant work both as generally performed 7 and as actually performed. Pinto, 249 F.3d at 845. The ALJ found that if Soto stopped the substance abuse, he could return to his 8 9 past relevant work as a store laborer, both as actually and generally performed. AR 17. 10 The VE questioned Soto as to the nature of his past relevant work. AR 33. Soto stated 11 he took orders for loading on trucks and drove a fork lift. Id. The VE testified that the 12 store laborer job was medium, unskilled work and that it was non-public work. AR 342 13 35; see Dictionary of Occupational Titles ( DOT ) 922.687-058. The ALJ specifically 14 asked the VE if the store laborer work involved the public. AR 35. The VE replied, Not 15 from the description I saw[;] it was more of the stocking and unloading than dealing with 16 customers. Id. The ALJ asked Soto, Are you stocking and unloading trucks owned by 17 the customers or are you stocking and unloading Home Depot trucks? Id. Soto replied, 18 It was stocking and unloading Home Depot trucks. Id. The ALJ stated, Okay, all right 19 so that would fit then. Id. Soto s attorney stated he had no questions for the VE. Id. Soto s description of his prior work (see AR 33-34, 121) and the VE s opinion, 20 21 which in turn relied on specific job classifications in the DOT, constitute substantial 22 evidence supporting the ALJ s determination that Soto can perform his past relevant 23 work as actually and generally performed. See Matthews v. Shalala, 10 F.3d 678, 681 24 1 25 26 Social Security rulings do not have the force of law. Nevertheless, they constitute Social Security Administration interpretations of the statute it administers and of its own regulations, and are given deference unless they are plainly erroneous or inconsistent with the Act or regulations. Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989). 27 2 28 The DOT raises a rebuttable presumption as to job classification. Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995). 4 1 (9th Cir. 1993) (claimant s testimony about past relevant work is highly probative ); 2 Pinto, 249 F.3d at 845-46 ( the best source for how a job is generally performed is 3 usually the Dictionary of Occupational Titles ). Soto s attempt to distinguish the facts in 4 Matthews is misplaced. He argues he did not specifically testify that his past work did 5 not require public contact. JS 7. However, the ALJ drew reasonable inferences from the 6 testimony. See Lewis v. Barnhart, 281 F.3d 1081, 1083-84 (9th Cir. 2002) (ALJ is 7 responsible for resolving conflicts and ambiguities in claimant s testimony about past 8 relevant work). There is no evidence in the record that Soto dealt with customers at 3 9 Home Depot. As to past relevant work as generally performed, the VE s testimony was 10 11 consistent with the DOT. Soto argues the VE s testimony was inconsistent with the DOT 12 because the DOT listing for the store laborer job indicates that such a worker [m]ay 13 drive vehicle to transport stored items from warehouse to plant or to pick up items from 14 several locations for shipment. JS 3. Soto assumes that transporting items from a 15 warehouse to plant or picking up items for shipment necessarily involves public contact. 16 Such an assumption is speculative. Soto also contends that may, according to the 17 Merriam-Webster dictionary, means possibility or requirement; thus, some contact with 18 the public would be required of a store laborer. JS 3, 7. Soto s reasoning, however, is 19 flawed. The DOT definition of may indicates that the specific duty is not required in all 4 20 establishments. See DOT, Parts of the Occupational Definition, 1991 WL 645965, § 21 22 23 24 25 26 27 28 3 This case is distinguishable from those in which the claimant provided evidence that his/her past relevant work required duties inconsistent with the RFC. See Pinto, 249 F.3d at 845 (claimant testified job required constant standing, bending and stooping). 4 Many definitions contain one or more sentences beginning with the word May . They describe duties required of workers in this occupation in some establishments but not in others. The word May does not indicate that a worker will sometimes perform this task but rather that some workers in different establishments generally perform one of the varied tasks listed. DOT, Parts of the Occupational Definition, 1991 WL 645965, § 5(c). 5 1 5(c). As the Commissioner argues, the DOT lists the store laborer job as having the 2 lowest level of interaction with people. JS 6; see DOT 922.687-058. The VE s testimony 3 was consistent with the DOT and Soto s RFC. The ALJ did not err. IV. ORDER 4 5 6 7 IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. 8 9 10 DATED: August 4, 2011 ALICIA G. ROSENBERG United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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