Gene Pena v. Michael J Astrue, No. 5:2010cv01086 - Document 17 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Ralph Zarefsky. (ib)
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Gene Pena v. Michael J Astrue Doc. 17 O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 GENE PENA, 12 13 14 15 Plaintiff, vs. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) CASE NO. ED CV 10-01086 RZ MEMORANDUM OPINION AND ORDER 17 The Administrative Law Judge found that Plaintiff Gene Pena had a single 18 severe impairment, equinus contractures of the legs with a history of polio. [AR 20] That 19 impairment, according to the medical expert means that the foot would turn downward 20 and inward. [AR 63] In light of this impairment, the Administrative Law Judge placed 21 various limitations on Plaintiff s residual functional capacity [AR 21] and, relying on the 22 testimony of the vocational expert, found that there were jobs in the economy that Plaintiff 23 could perform. Therefore, he found Plaintiff was not disabled. Plaintiff challenges the 24 decision on two grounds. 25 First, Plaintiff challenges the classification of Plaintiff s residual functional 26 capacity as falling into the category of light work. Plaintiff notes that, had he been 27 confined to sedentary work, the Medical-Vocational Guidelines ( the grids ), 20 C.F.R. 28 Part 404, Subpart P, Appendix II, would have dictated a finding of disabled under Rule Dockets.Justia.com 1 201.14. Calling Plaintiff s capacity as one to perform light work, Plaintiff says, enabled 2 the Administrative Law Judge to escape the directive of the grids which are mandatory 3 if they apply, Cooper v. Sullivan, 880 F.2d 1152 (9th Cir. 1989) and instead wrongly 4 to find Plaintiff not disabled. 5 A person s capacity falls into the light category based largely on strength, the 6 ability to lift no more than 20 pounds at a time, with frequent lifting or carrying of objects 7 weighing up to 10 pounds. 20 C.F.R.ยง 404.1567(b). The regulations provide that a job 8 also may fall into this category when, even though the amount lifted is not great, there is 9 a significant amount of walking or standing involved. Id. Here, the Administrative Law 10 Judge found that Plaintiff s ability to stand or walk was quite limited; he could do so for 11 no more than a total of two hours in an eight hour period, and only in increments of fifteen 12 to thirty minutes; he had to be able to use a cane as needed; he could not push pedals, climb 13 ladders, run, jump, squat, kneel, crawl, balance, or walk on uneven terrain. [AR 21] In this Court, Plaintiff states that the classification of light work is 14 15 unreasonable. He says that a person who has to use a cane in one hand cannot 16 simultaneously carry a twenty-pound object in the other hand. That is a plausible position, 17 but it is not the state of the evidence. Thus, when the Administrative Law Judge asked the 18 vocational expert her opinion of the ability to work if a claimant with the identified residual 19 capacity needed a walker rather than just a cane, the expert replied that it would eliminate 20 all work because the hands would be monopolized hanging onto the walker. [AR 82] The 21 clear inference of the statement is the reverse, that a claimant with the stated capacity could 22 perform the jobs she specified using only a cane and, presumably therefore, having the 23 other hand available to carry as needed. No contrary evidence in the record has been 24 identified. 25 Thus, there was evidence to support the residual functional capacity that the 26 Administrative Law Judge identified and, since Plaintiff could perform the strength 27 component of light work, it was permissible for the Administrative Law Judge not to 28 classify him as having only the capacity to perform sedentary work. In the circumstances -2- 1 where one category of the grids would dictate a finding of disabled, and a higher 2 exertional category would dictate a finding of not disabled, it is appropriate for the 3 Administrative Law Judge to consult a vocational expert if the claimant s capacity lies 4 somewhere in between. Thomas v. Barnhart, 278F.3d 947, 960 (9th Cir. 2002), citing 5 Moore v. Apfel, 216 F.3d 864, 870-71 (9th Cir. 2000). 6 Plaintiff also contends that the Administrative Law Judge wrongly relied on 7 the testimony of the vocational expert, because the vocational expert did not persuasively 8 explain her deviation from the description of jobs in the Labor Department s DICTIONARY 9 OF OCCUPATIONAL TITLES. Plaintiff says that the three jobs the vocational expert identified 10 were jobs in the light category, and that the vocational expert s opinion of the number of 11 jobs that would be eroded by Plaintiff s functional restrictions is not reliable because, when 12 questioned, the vocational expert could not give strong back-up to her opinions. Calling 13 such testimony a deviation from the DICTIONARY OF OCCUPATIONAL TITLES is a straw man. 14 Testimony as to how many jobs exist does not mean that those jobs which do exist are not 15 in the light category. 16 The real issue is whether the Administrative Law Judge was justified in 17 accepting the testimony of the vocational expert, and relying on it as the basis for his 18 conclusion that there were jobs in the economy that Plaintiff could perform. No Ninth 19 Circuit authority has been cited on this point, but the Sixth Circuit has addressed the issue. 20 In Sias v. Secretary of Health and Human Services, 861 F.2d 475 (6th Cir. 1988), the 21 claimant was restricted to working with one leg elevated. Pointing out that the vocational 22 expert had no personal knowledge of anyone working with such a restriction, the claimant 23 asserted that the vocational expert therefore could not opine about the likelihood of 24 employers accommodating his impairment. The Court, however, observed that [i]t is the 25 Secretary s job to evaluate the trustworthiness of a vocational expert s testimony, 861 26 F.2d at 480, and ruled that [t]here is . . . no requirement that the vocational expert have 27 direct first-hand knowledge of someone in the claimant s condition performing the jobs he 28 is said to be capable of performing. 861 F.2d at 481. The Court concluded that there was -3- 1 no reason to believe that the Administrative Law Judge had not carefully weighed the 2 credibility of the witness, and that the Court could not make a de novo determination of 3 the vocational expert s credibility. 861 F.2d at 481. 4 Likewise, in Barker v. Shalala, 40 F.3d 789 (6th Cir. 1994), the plaintiff 5 challenged the testimony by the vocational expert, arguing that the identified jobs, as listed 6 in the DICTIONARY OF OCCUPATIONAL TITLES, required different exertional and skill levels 7 from those he retained after his impairments. The Court noted that the expert could, and 8 did, explain the sources that he used for his opinion. The Court also noted that the expert 9 was available for, and subject to vigorous cross-examination, that the expert s credibility 10 was fully probed at the hearing, and that credibility was properly within the province of the 11 Administrative Law Judge to determine. 40 F.3d at 795, citing Sias, supra. Finally, the 12 Court noted that the Administrative Law Judge s credibility findings were entitled to 13 deference on review, and that there was no clear error in accepting the vocational expert s 14 testimony. Id., citing King v. Heckler, 742 F.2d 968, 974 (6th Cir. 1984). 15 Here, Plaintiff s counsel examined the vocational expert as to the basis for his 16 conclusion as to how much of the job base was eroded by the restrictions placed on 17 Plaintiff s remaining functional capacity. The expert referred to her experience generally 18 and responded to counsel s questions about how long it had been since she made site visits, 19 and what records of those visits she had prepared. The visits were several years earlier; the 20 records did not presently exist. [AR 83-87] But an expert is entitled to rely on knowledge 21 generally acquired over time and, as in Sias and Barker, does not have to have precise 22 personal knowledge as to the situations involved. The Administrative Law Judge, not the 23 Court, makes the determination as to the credibility of the expert, and that determination 24 is due deference. The Court sees no basis not to accord such deference here. 25 /// 26 /// 27 /// 28 /// -4- In accordance with the foregoing, the decision of the Commissioner is 1 2 affirmed. 3 4 DATED: March 8, 2011 5 6 7 8 RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5-
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