Leck Signavong v. Michael J. Astrue, No. 5:2010cv00917 - Document 19 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle. IT IS ORDERED that Judgment shall be entered affirming the decision of the Commissioner of the Social Security Administration. (mz)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LECK SIGNAVONG, 12 13 14 15 16 ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) ) Defendant. ___________________________________) NO. EDCV 10-917 MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on June 28, 2010, seeking review of the 19 denial by the Social Security Commissioner (the Commissioner ) of 20 plaintiff s application for a period of disability, disability insurance 21 benefits ( DIB ), and supplemental security income ( SSI ). On July 22, 22 2010, the parties consented, pursuant to 28 U.S.C. § 636(c), to proceed 23 before the undersigned United States Magistrate Judge. 24 filed a Joint Stipulation on March 30, 2011 in which: 25 an order reversing the Commissioner s decision and remanding this case 26 for the payment of benefits or, alternatively, remanding the matter for 27 further administrative proceedings; and defendant requests that the 28 Commissioner s decision be affirmed or, alternatively, remanded for The parties plaintiff seeks 1 further administrative proceedings. The Court has taken the parties 2 Joint Stipulation under submission without oral argument. 3 4 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 5 6 Plaintiff filed an application for a period of disability, DIB, and 7 SSI on February 5, 2008. 8 Plaintiff, who was born on June 12, 1953 (A.R. 140, 147, 151),1 claims 9 to have been disabled since December 20, 2004, due to paralysis of the 10 left side of his body, left leg pain, left arm numbness, the spinal 11 cord, memory loss, hypertension, weakness, dizziness, depression (A.R. 12 13, 13 standing, walking, sitting, kneeling, climbing stairs, seeing, following 14 instructions, concentrating, completing tasks, and getting along with 15 others (A.R. 13, 175). 16 experience as a security guard. 156), (Administrative Record ( A.R. ) 9, 151, 128.) as well as difficulties lifting, squatting, bending, Plaintiff has past relevant work ( PRW ) (A.R. 17.) 17 18 After the Commissioner denied plaintiff s claim initially and upon 19 reconsideration (A.R. 55-66), plaintiff requested a hearing (A.R. 68). 20 On September 15, 2009, and November 18, 2009, plaintiff, who was 21 represented by counsel, appeared and testified at a hearing before 22 Administrative Law Judge Mason D. Harrell, Jr. (the ALJ ). 23 50.) 24 medical expert Dr. Michael Kania, M.D. and vocational expert Corinne J. 25 Porter. (A.R. 19- At the November administrative hearing, testimony was given by On December 28, 2009, the ALJ denied plaintiff s claim (A.R. 26 27 28 1 On the alleged disability onset date, plaintiff was 51 years old, which is defined as a person closely approaching advanced age. 20 C.F.R. §§ 404.1563, 416.963. 2 1 9-18), and the Appeals Council subsequently denied plaintiff s request 2 for review of the ALJ s decision (A.R. 1-3). 3 issue in this action. That decision is now at 4 5 SUMMARY OF ADMINISTRATIVE DECISION 6 7 The ALJ found that plaintiff has not engaged in substantial gainful 8 activity since December 20, 2004, the alleged onset date of plaintiff s 9 disability. (A.R. 11.) The ALJ also determined that plaintiff meets 10 the insured status requirements of the Social Security Act through 11 December 31, 2008. 12 following severe impairments: 13 hip, depression, and post-traumatic stress disorder.2 14 further concluded, however, that plaintiff does not have an impairment 15 or combination of impairments that meets or medically equals one of the 16 impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 17 C.F.R. 18 416.926). §§ (Id.) 404.1520(d), The ALJ concluded that plaintiff has the degenerative joint disease of the left 404.1525, 404.1526, (Id.) 416.920(d), The ALJ 416.925, (A.R. 12.) 19 20 After reviewing the record, the ALJ determined that plaintiff has 21 the residual functional capacity ( RFC ) to perform less than a full 22 range 23 416.967(b). of light work as defined in 20 C.F.R. §§ 404.1567(b) and Specifically, the ALJ found that: 24 25 [plaintiff] can stand and/or walk for 4 to 6 hours in an 8- 26 hour workday, for one hour at a time without the use of a 27 2 28 The ALJ determined that plaintiff s alleged involving his left shoulder is not severe. (A.R. 11.) 3 impairment 1 cane; he can occasionally stoop or bend; he has no sitting 2 limitations; he can not climb, balance, or work at heights; he 3 can occasionally to frequently push and pull with his left 4 arm; he would have slight difficulty operating hand controls 5 and using tools with his left hand; he can do frequent simple 6 gripping and fine coordinated movements with his left hand and 7 fingers; he has unrestricted use of the right upper extremity; 8 he can lift and/or carry 15 pounds frequently and 30 pounds 9 occasionally; he can do simple tasks in a non-public work 10 setting, with occasional contact with supervisors 11 and coworkers; and he may miss work 1-2 times per month. 12 13 (A.R. 13.) 14 15 The ALJ concluded that plaintiff was capable of performing his PRW 16 as a security guard. (A.R. 17.) The ALJ determined that plaintiff s 17 PRW, as generally performed, does not require the performance of work- 18 related activities precluded by plaintiff s RFC. 19 finding, the ALJ relied on the testimony of the vocational expert. 20 (Id.) 21 testimony of medical expert Dr. Kania. 22 concluded that plaintiff has not been under a disability within the 23 meaning of the Social Security Act from December 20, 2004, the alleged 24 disability onset date, through the date of his decision. 25 18.) 26 /// 27 /// 28 /// (Id.) In making this The ALJ also noted that his finding was supported by the 4 (Id.) Accordingly, the ALJ (A.R. 9, 17- 1 STANDARD OF REVIEW 2 3 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 4 decision to determine whether it is free from legal error and supported 5 by substantial evidence in the record as a whole. 6 F.3d 625, 630 (9th Cir. 2007). 7 evidence as a reasonable mind might accept as adequate to support a 8 conclusion. 9 a mere scintilla but not necessarily a preponderance. Orn v. Astrue, 495 Substantial evidence is such relevant Id. (citation omitted). The evidence must be more than Connett v. 10 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). While inferences from the 11 record can constitute substantial evidence, only those reasonably drawn 12 from the record will suffice. 13 1066 (9th Cir. 2006)(citation omitted). Widmark v. Barnhart, 454 F.3d 1063, 14 15 Although this Court cannot substitute its discretion for that of 16 the Commissioner, the Court nonetheless must review the record as a 17 whole, weighing both the evidence that supports and the evidence that 18 detracts from the [Commissioner s] conclusion. 19 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 20 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 21 responsible for determining credibility, resolving conflicts in medical 22 testimony, and for resolving ambiguities. 23 1035, 1039 (9th Cir. 1995). Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 24 25 The Court will uphold the Commissioner s decision when the evidence 26 is susceptible to more than one rational interpretation. 27 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 28 review only the reasons stated by the ALJ in his decision and may not 5 Burch v. However, the Court may 1 affirm the ALJ on a ground upon which he did not rely. Orn, 495 F.3d 2 at 630; see also Connett, 340 F.3d at 874. 3 the Commissioner s decision if it is based on harmless error, which 4 exists only when it is clear from the record that an ALJ s error was 5 inconsequential to the ultimate nondisability determination. Robbins 6 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 7 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 8 at 679. The Court will not reverse 9 DISCUSSION 10 11 12 Plaintiff claims that the ALJ improperly found that plaintiff could 13 perform his PRW as a security guard. (Joint Stipulation ( Joint Stip. ) 14 at 4-10, 14-17.) 15 16 I. 17 The ALJ Committed No Reversible Error In Determining That Plaintiff Could Perform His PRW As A Security Guard. 18 19 At step four of the sequential evaluation process, a claimant bears 20 the burden of proving that he or she can no longer perform his or her 21 PRW. 22 Notwithstanding claimant s burden, the ALJ still has a duty to make the 23 requisite factual findings to support his or her conclusion regarding 24 plaintiff s ability to perform his or her PRW. 25 able to perform: 26 a particular past relevant job ; or (2) [t]he functional demands and 27 job 28 throughout the national economy. Pinto duties of v. Massanari, 249 F.3d 840, 844 Id. (9th Cir. 2001). A claimant must be (1) [t]he actual functional demands and job duties of the occupation as generally required by employers Id. at 845 (citations omitted). 6 1 Accordingly, the ALJ must make specific findings as to the claimant s 2 [RFC], the physical and mental demands of the [PRW], and the relation of 3 the [RFC] to the past work. Id. 4 5 In general, an ALJ should consider first whether claimant can 6 perform his or her PRW as actually performed and then as generally 7 performed. 8 a job is generally performed is the Dictionary of Occupational Titles 9 (the DOT ). Pinto, 249 F.3d at 845. Typically, the best source for how Id.; Social Security Ruling ( SSR ) 00-4p, 2000 WL 10 1898704, at *2 (noting that we rely primarily on the DOT . . . for 11 information about the requirements of work in the national economy ).3 12 Although occupational evidence provided by the vocational expert is 13 generally expected to be consistent with the DOT, [n]either the DOT nor 14 the [vocational expert s] evidence automatically trumps when there is 15 a conflict. SSR 00-4p, 2000 WL 1898704, at *2. 16 17 The ALJ has an affirmative responsibility to ask whether a conflict 18 exists between the testimony of a vocational expert and the DOT. 19 00-4p, 2000 WL 1898704, at *4; Massachi v. Astrue, 486 F.3d 1149, 1152 20 (9th Cir. 2007). 21 from 22 vocational expert that contradicts the DOT, but the record must contain 23 persuasive evidence to support the deviation. Pinto, 249 F.3d at 846 24 (quoting Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995)). the SSR If there is a conflict between the DOT and testimony vocational expert, an ALJ may accept testimony from a The 25 3 26 27 28 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. Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989). Accordingly, they are given deference, unless they are plainly erroneous or inconsistent with the Act or regulations. Id. 7 1 ALJ must resolve any conflict by determining whether the vocational 2 expert s explanation is reasonable and provides sufficient support to 3 justify deviating from the DOT. 4 Massachi, 486 F.3d at 1153. 5 harmless error when there is no conflict or the vocational expert 6 provides a basis for relying on the his or her testimony rather than on 7 the DOT. SSR 00-4p, 2000 WL 1898704, at *4; An ALJ s failure to do so, however, can be Id. at 1154 n.19. 8 9 At the November 18, 2009 administrative hearing, the ALJ asked the 10 vocational expert whether a hypothetical individual who was limited, as 11 is plaintiff, to, inter alia, standing/walking for four to six hours out 12 of an eight-hour workday, but not more than one hour at a time, and 13 simple tasks that are performed in a nonpublic setting, could perform 14 plaintiff s PRW. 15 hypothetical individual with the limitations described by the ALJ would 16 be able to perform plaintiff s PRW as generally performed but not as 17 actually performed. 18 testimony was per the DOT, the vocational expert answered Yes. 19 (A.R. 48.) 20 there are in the region and nation, the vocational expert testified 21 that, 22 positions in the region, and 20,000 nationally. 23 expert further testified that the kind of security guard jobs [she is] 24 referring to, would be guarding a construction site, which is - seems 25 to be a very popular position right now. 26 in their car. (A.R. 47.) The vocational expert testified that a (A.R. 47-48.) When asked by the ALJ if her In response to the ALJ s question of how many such positions after eroding the numbers by 90 percent, there (Id.) are 3,000 The vocational One that is typically sitting And - or an industrial site, as well. (Id.) 27 28 After the ALJ s examination, plaintiff s counsel elicited the 8 1 following testimony from the vocational expert: 2 3 Q 4 5 Does the limitation to simple [tasks] impact the ability of the security guard jobs? A No, I don t think it does. Q I did notice that you had indicated it as a semiskilled 6 7 job. 8 9 10 A It is a semiskilled job with [a Specific Vocational 11 Preparedness ( SVP ) score of] three, which is the lowest 12 range of, of semiskilled work. 13 posed as simple wasn t posed as simple unskilled work or 14 simple repetitive work; it was posed as simple work. And 15 I believe that such as the job is performed, there s no 16 reports required in that type of watch guard or security 17 guard. And the way that was 18 19 Q And the person who s sitting in his car, isn t it his job 20 to actually approach and confront or address people from 21 the public that may look like they shouldn t be there? 22 23 A No, that s not actually the way that is performed. It would be making a call to the police. 24 25 26 Q So there s no interaction at all with the guard and the, 27 and the member of the public? It s just a reporting type 28 function and calling the police? 9 1 A If the public would come up and approach the guard, but 2 that is not a requirement of a job where one is, is 3 earning minimum wage or $8 an hour, is to chase someone 4 or approach somebody about - when they re on property 5 such as that. It would be to notify. 6 7 (A.R. 48-49.) 8 9 10 Upon re-examination, the ALJ elicited the following testimony from the vocational expert: 11 12 Q Your, your testimony s consistent with the DOT, right? A As I explained, yes. 13 14 15 16 ALJ: As you explained. Okay. . . . 17 18 (A.R. 48-49.) 19 finding 20 performed, because plaintiff s PRW does not require the performance of 21 work-related activities precluded by plaintiff s RFC. that The ALJ relied on the vocational expert s testimony in plaintiff is able to perform his PRW as generally (A.R. 17.) 22 23 Contrary to plaintiff s contention, the ALJ did not err in relying 24 on the vocational expert s testimony that plaintiff could perform his 25 PRW as a security guard.4 As an initial matter, the ALJ complied with 26 27 28 4 Plaintiff claims that the neither the ALJ nor the vocational expert identified the DOT number for the job of security guard. (Joint Stip. at 5.) However, as defendant properly notes, plaintiff s 10 1 his affirmative duty to confirm that the vocational expert s testimony 2 was consistent with the information provided in the DOT. 3 2000 WL 1898704, at *4 ( When a [vocational expert] provides evidence 4 about the requirements of a job or occupation, the [ALJ] has an 5 affirmative responsibility to ask about any possible conflict between 6 that [vocational expert s] testimony and information provided in the 7 DOT. 8 if the evidence he or she has provided conflicts with information 9 provided in the DOT ). Here, after the vocational expert testified that 10 a hypothetical individual with plaintiff s limitations could perform 11 plaintiff s PRW as generally performed but not as actually performed, 12 the ALJ asked the vocational expert whether her testimony was consistent 13 with the DOT. In these situations, the [ALJ] will: SSR 00-4p, Ask the [vocational expert] The vocational expert replied, Yes. 14 15 In addition, after plaintiff s counsel examined the vocational 16 expert, and the 17 regarding 18 industrial or construction site, the ALJ again asked the vocational 19 expert whether her testimony was consistent with the DOT. 20 vocational expert responded in the affirmative. 21 satisfied his duty to verify that the vocational expert s testimony 22 regarding plaintiff s capacity to perform his PRW was consistent with 23 the DOT. 24 vocational expert s testimony, the ALJ was under no duty to make the vocational requirements expert provided additional of security guard the information position at an Again, the The ALJ, therefore, As there was no apparent inconsistency between the DOT and the 25 26 27 28 assertion is incorrect, because the vocational expert submitted a Past Relevant Work Summary ( Summary ) that identified the correct DOT number for a security guard position and referred to this Summary when she testified at the administrative hearing. (Joint Stip. at 12 n.3, see A.R. 48, 226.) 11 1 additional inquiries. See Michelson-Wurm v. Comm r SSA, 285 Fed. Appx. 2 482, 2008)(stating 3 discrepancy . . . only where there is an apparent unresolved conflict 4 that 5 DOT )(emphasis in original); see also SSR 00-4p, at *4 (referring to an 6 apparent conflict). 7 testimony, the ALJ concluded that plaintiff s PRW does not require the 8 performance of work-related activities precluded by plaintiff s RFC. 486 (9th arises Cir. between the that vocational an ALJ expert s must clarify testimony and the the Accordingly, based on the vocational expert s 9 10 However, even assuming arguendo, that there was an apparent 11 unresolved conflict between the vocational expert s testimony and the 12 DOT, as plaintiff contends, an ALJ may rely on expert testimony which 13 contradicts the DOT [so long as] the record contains persuasive evidence 14 to support the deviation. 15 (9th Cir. 2008)(citations omitted); see Massachi, 486 F.3d at 1154 n.19 16 (noting that there is no reversible error if there was no conflict or 17 the vocational expert provided sufficient support for her conclusion so 18 as to justify any potential conflicts ); Johnson, 60 F.3d at 1435-36 19 (noting that DOT classifications are rebuttable and are not the sole 20 source of admissible information concerning jobs). 21 to permit such a deviation may be either specific findings of fact 22 regarding plaintiff s RFC, or inferences drawn from the context of the 23 expert s testimony. Tommasetti v. Astrue, 533 F.3d 1035, 1042 Evidence sufficient Light v. SSA, 119 F.3d 789, 793 (9th Cir. 1997). 24 25 The vocational expert s testimony provides sufficient support for As noted above, the vocational 26 any alleged conflict with the DOT. 27 expert 28 limitations, including, inter alia, standing/walking for not more than testified that a hypothetical 12 individual with plaintiff s 1 one hour at a time and simple tasks in a non-public work setting, could 2 perform plaintiff s PRW, as generally performed, as a security guard. 3 Specifically, after reducing the occupational base by 90 percent based 4 on 5 plaintiff could perform the job of security guard at an industrial or 6 construction site, which she noted was typically performed while seated 7 in a car. 8 plaintiff s RFC limitations and the specific requirements of the job of 9 security guard at an industrial or construction site in determining that limitations,5 plaintiff s the vocational expert testified that The vocational expert s testimony shows that she considered 10 plaintiff could perform his PRW. 11 persuasive 12 testimony matching the specific requirements of a designated occupation 13 with the specific abilities and limitations of [plaintiff] ). evidence to See Johnson, 60 F.3d at 1435 (finding support alleged deviation when there was 14 15 Furthermore, contrary to plaintiff s contention, the vocational 16 expert sufficiently addressed any alleged inconsistency and/or deviation 17 between the DOT requirements for a security guard and plaintiff s RFC 18 limitations. 19 requirements of 20 settings. SSR 21 vocational expert may be able to provide more specific information 22 about a job or occupation than the DOT. As recognized by SSR 00-4p, [t]he DOT lists maximum a particular 00-4p, 2000 job WL as it 1898704, is at performed *3. Id. in specific Accordingly, a In this case, the 23 5 24 25 26 27 28 Although the vocational expert did not specifically state that the 90 percent erosion in the occupational base was due to plaintiff s various limitations, such a conclusion is reasonably inferred. See Light, 119 F.3d at 793 (noting that [e]vidence sufficient to permit . . . a deviation [between the vocational expert s testimony and the DOT] may be either specific findings of fact regarding the claimant s residual functionality, or inferences drawn from the context of the expert s testimony )(citations omitted); see also Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)(noting that an ALJ is entitled to draw inferences logically flowing from the evidence). 13 1 vocational expert 2 walking/standing limitations and any alleged deviation with the DOT, the 3 vocational expert testified that the particular security guard positions 4 that plaintiff could perform - to wit, a security guard position at an 5 industrial or commercial site with a 90 percent erosion - typically 6 would involve sitting in a car. 7 limitations with respect to sitting, there is no conflict. 8 with respect to plaintiff s RFC limitation to non-public work and the 9 DOT requirement did of just that. warning With respect to plaintiff s Because plaintiff s RFC includes no violators of rule Similarly, infractions and 10 apprehending or expelling miscreants, the vocational expert testified 11 that the security guard position would not require plaintiff to chase or 12 approach members of the public. 13 required to notify the police.6 Rather, plaintiff only would be 14 15 Lastly, contrary between to the plaintiff s level three contention, reasoning there required is no for the 16 inconsistency 17 position of security guard and plaintiff s RFC limitation to simple 18 19 20 21 22 23 24 25 26 27 28 6 Plaintiff claims that, in explaining the requirements of the job, the vocational expert s explanation appeared to go to the underlying nature of the job - it is not well paid - rather than address the distinction between sitting in a car and walking the premises or working out of a guard shack. (Joint Stip. at 7.) However, when asked whether the security guard position identified by the vocational expert required plaintiff to approach and confront or address people from the public that may look like they shouldn t be there, the vocational expert responded that that s not actually the way [the job] is performed. It would be making a call to the police. (A.R. 49.) When further questioned whether there was any interaction between the security guard and the public, the vocational expert testified that is not a requirement of a job where one is, is earning minimum wage . . . . It would be to notify. (Id.) Thus, while the vocational expert does make reference to the fact that the industrial or construction site security guard job earns minimum wage, the vocational expert also clearly testified that the job, as actually performed, only involves notifying the police, not approaching, confronting, and/or addressing the public. Accordingly, plaintiff s claim is unpersuasive. 14 1 tasks. According to the DOT, the job of security guard requires level 2 three reasoning skills. The DOT defines level 3 reasoning skills as the 3 ability to [a]pply commonsense understanding to carry out instructions 4 furnished in written, oral, or diagrammatic form. Deal with problems 5 involving from 6 situations. several concrete variables in or standardized DOT Appendix C, Section III, 1991 WL 688702. 7 8 9 Currently, there is a split among the circuit courts on whether a limitation to simple, repetitive tasks is compatible with the 10 performance of jobs with a level three reasoning as defined in the DOT. 11 Adams v. Astrue, 2011 WL 1833015 (N.D. Cal. May 13, 2011)(comparing 12 Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005)(a surveillance 13 systems monitor job with a DOT reasoning level of three was not suitable 14 for a claimant whose RFC limited her to simple and routine work tasks ) 15 with Terry v. Astrue, 580 F.3d 471, 478 (7th Cir. 2009)(a claimant 16 limited to simple work could perform the job of surveillance systems 17 monitor, which had a reasoning level of three) and Renfrow v. Astrue, 18 496 F.3d 918, 920-21 (8th Cir. 2007)(a claimant with an inability to do 19 complex technical work was not precluded from jobs with a reasoning 20 level of three)). 21 question directly, the weight of authority in this Circuit holds that a 22 limitation to simple, repetitive tasks is incompatible with a reasoning 23 level of three.7 Although the Ninth Circuit has yet to address this 24 7 25 As noted by the court in Torrez v. Astrue, 2010 WL 2555847 (E.D. Cal. June 21, 2010): 26 Several district court cases in this circuit question whether a claimant limited to simple, repetitive tasks, is capable of performing jobs requiring level three reasoning under the DOT. In McGensy v. Astrue, 2010 WL 1875810 (C.D. Cal. May 11, 2010), the Court noted that while case law has held that a 27 28 15 1 Critically, however, there is no such similar weight of authority 2 in this Circuit when plaintiff, as in this case, is limited to only 3 simple tasks, as opposed to simple and repetitive tasks. 4 Astrue, for example, the district court was faced with this very issue. 5 2011 U.S. Dist. LEXIS 44789 (E.D. Cal. April 19, 2011). 6 court did not cite any authority directly on point, it reasoned that 7 [g]iven the significant case law within [the Ninth] Circuit that 8 questions whether a claimant limited to simple, repetitive work is 9 capable of performing jobs with a Reasoning Level of 3, the [c]ourt 10 [would] not reach a different conclusion simply because Plaintiff s RFC 11 does not include a limitation to repetitive work. In Funches v. Although the Id. at *14. 12 13 The court noted that, under these circumstances, the ALJ is 14 required to determine whether a conflict exists and, if so, whether 15 16 17 18 19 20 21 22 23 24 25 26 27 28 limitation to simple, repetitive tasks is consistent with level two reasoning, this restriction is inconsistent with the requirements for level three reasoning, in particular the job of mail clerk. Id. at *3 (citing Pak v. Astrue, 2009 WL 2151361 at *7 (C.D. Cal. July 14, 2009)( The Court finds that the DOT s Reasoning Level three requirement conflicts with the ALJ s prescribed limitation that Plaintiff could perform only simple, repetitive work ); Tudino v. Barnhart, 2008 WL 4161443 at *11 (S.D. Cal. Sept. 5, 2008)( [l]evel-two reasoning appears to be the breaking point for those individuals limited to performing only simple repetitive tasks ; remand to ALJ to address the conflict between Plaintiff s limitation to simple, repetitive tasks and the level-three reasoning ); Squier v. Astrue, 2008 WL 2537129 at *5 (C.D. Cal. June 24, 2008)(reasoning level three is inconsistent with a limitation to simple repetitive work )). In addition, in Bagshaw v. Astrue, 2010 WL 256544 at *5 (C.D. Cal. January 20, 2010), the court expressly cited Hackett [v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005)] in concluding that a mail clerk job, which requires level three reasoning under the DOT, was inconsistent with [plaintiff s] intellectual functional capacity limitation to simple, routine work. 2010 WL 2555847, at *8-*9 (finding that the DOT precludes a person restricted to simple, repetitive tasks, from performing work . . . that requires level three reasoning). 16 1 the vocational expert s explanation for the conflict is reasonable and 2 whether a basis exists for relying on the expert rather than the 3 [DOT]. Funches, 2011 U.S. Dist. LEXIS 44789, at *15 (citations 4 omitted). However, while the ALJ stated that the testimony of the 5 vocational expert was consistent with the DOT and concluded that 6 plaintiff could perform other work, the court found that there was no 7 indication in either the testimony or the interrogatories . . . that the 8 ALJ asked the [vocational expert] whether a conflict existed. 9 *16. Id. at Because the ALJ did not pose this question to the vocational 10 expert, the court found that it could not determine whether substantial 11 evidence supported the ALJ s determination that plaintiff could perform 12 other 13 specifically directed the ALJ to obtain a reasonable explanation from 14 the [vocational expert] for the conflict between her testimony and the 15 DOT. work. Id. Therefore, the court remanded the case and Id. at *17. 16 17 Here, unlike in Funches, the ALJ twice confirmed that the 18 vocational expert s testimony was consistent with the DOT. Further, the 19 vocational expert specifically testified that plaintiff s limitation to 20 simple tasks did not preclude his performance of the industrial or 21 construction site security guard job - a job which requires level three 22 reasoning skills. 23 the vocational expert noted that the ALJ had not restricted plaintiff 24 to repetitive work, and the specific requirements of the job did not 25 involve writing reports.8 In explaining plaintiff s capacity to do such work, As such, in this case, there was no apparent 26 8 27 28 To the extent plaintiff relies on Stroda v. Astrue, 2010 WL 129814 (W.D. Wash. Jan. 11, 2010) and claims that the vocational expert improperly focused on the SVP score of the security guard job when concluding that plaintiff s limitation to simple tasks was not 17 1 conflict between plaintiff s limitation to simple tasks and his ability 2 to perform jobs requiring level three reasoning.9 3 there were such a conflict, the vocational expert provided persuasive 4 testimony to support her conclusion that plaintiff could perform the job 5 of security guard at an industrial or construction site notwithstanding 6 his limitations. However, even if 7 8 Thus, the vocational expert s testimony regarding the specific 9 requirements of the security job at an industrial or construction site, 10 after a 90 percent erosion, provides a sufficient rationale to support 11 any purported deviation/inconsistency between the vocational expert s 12 testimony and the DOT. 13 failing to address any apparent conflict was harmless. Accordingly, the 14 ALJ did not commit reversible error in relying on the vocational 15 expert s testimony concerning plaintiff s ability to perform his PRW, 16 and remand is not warranted. 17 /// 18 /// 19 /// As such, any error committed by the ALJ in 20 21 22 23 24 25 26 27 28 inconsistent with a security guard job, plaintiff s claim is unpersuasive. First, prior to testifying about the SVP score of a security guard, the vocational expert testified that a limitation to simple tasks does not impact the ability to perform the job of an industrial or construction site security guard. Second, there is no indication that the vocational expert relied on the SVP for the job of security guard to justify her finding. Rather, it appears that the vocational expert was attempting to further explain her finding that plaintiff s limitation to simple tasks alone does not impact his ability to perform the job of security guard. 9 Moreover, and perhaps telling, plaintiff does not identify any level three reasoning skill that he is unable to perform as a result of his limitation to simple tasks. Rather, plaintiff generally contends that his limitation to simple tasks is incompatible with the performance of a job requiring level three reasoning. 18 1 CONCLUSION 2 3 For the foregoing reasons, the Court finds that the Commissioner s 4 decision is supported by substantial evidence and is free from material 5 legal error. Neither reversal of the Commissioner s decision nor remand 6 is warranted. 7 8 Accordingly, IT IS ORDERED that Judgment shall be entered affirming 9 the decision of the Commissioner of the Social Security Administration. 10 IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of 11 this Memorandum Opinion and Order and the Judgment on counsel for 12 plaintiff and for defendant. 13 14 LET JUDGMENT BE ENTERED ACCORDINGLY. 15 16 DATED: October 25, 2011 17 18 19 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 19
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