Danielle Johnson v. Michael J. Astrue, No. 5:2010cv01177 - Document 17 (C.D. Cal. 2011)
Court Description: MEMORANDUM DECISION & ORDER by Magistrate Judge Stephen J. Hillman, The decision of the Commissioner is affirmed. (SEE ORDER FOR FURTHER DETAILS) (lmh)
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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION 11 12 13 14 15 16 17 18 DANIELLE JOHNSON, Plaintiff, v. MICHAEL J. ASTRUE, 19 Commissioner of Social Security, 20 21 22 Defendant. ) ) ) ) ) ) ) ) ) ) ) Case No. CV 10-1177 (SH) MEMORANDUM DECISION AND ORDER This matter is before the Court for review of the decision by the Commissioner of 23 Social Security denying plaintiff s applications for Disability Insurance Benefits and for 24 Supplemental Security Income. Pursuant to 28 U.S.C. § 636(c), the parties have 25 consented that the case may be handled by the undersigned. The action arises under 42 26 U.S.C. § 405(g), which authorizes the Court to enter judgment upon the pleadings and 27 transcript of the record before the Commissioner. The plaintiff and the defendant have 28 filed their pleadings (Plaintiff s Brief with Points and Authorities in Support of Remand 1 1 or Reversal [ Plaintiff s Brief ]; Defendant s Memorandum of Points and Authorities in 2 Opposition to Reversal or Remand of the Commissioner s Final Decision), and the 3 4 5 6 7 8 defendant has filed the certified transcript of record. After reviewing the matter, the Court concludes that the decision of the Commissioner should be affirmed. On January 18, 2007, plaintiff Danielle Johnson filed an application a period of disability or Disability Insurance Benefits. On January 19, 2007, plaintiff filed an application for Supplemental Security Income. Both applications alleged an inability to 9 work since December 12, 2003, due to Reflex Sympathetic Dystrophy and Complex 10 Regional Pain Syndrome. (See 1 Administrative Record [ AR ] 129-84). On August 4, 11 2009, an Administrative Law Judge ( ALJ ) found that plaintiff was not disabled within 12 the meaning of the Social Security Act. (See 1 AR 6-16). 13 Following the Appeals Council s denial of plaintiff s request for a review of the 14 hearing decision (see 1 AR 1-3 ), plaintiff filed this action in this Court. 15 ISSUE NOS. 1 AND 2: 16 17 18 19 20 21 22 23 24 Plaintiff asserts that the ALJ improperly determined that plaintiff could perform her past relevant work as a receptionist, because (a) the ALJ did not consider the physical and mental demands of that work as actually performed and (b) such work was inconsistent with the job description contained in the Dictionary of Occupational Titles. Defendant argues that the ALJ properly found that plaintiff could perform such work. In the Decision, the ALJ initially found that plaintiff had the following severe impairments: pain disorder and mild foot drop. (AR 14). The ALJ subsequently found that plaintiff had the following residual functional 1 25 capacity ( RFC ) : . . . [T]he claimant has the residual functional capacity to perform light work 26 27 . . . . in that she can lift/carry up to 10 lbs. frequently and 20 lbs. occasionally; 28 1 The RFC is the most a claimant can do despite his or her limitations. 20 C.F.R. §§ 404.1545(a), 416.945(a). 2 1 occasionally push and pull with the left upper extremity and left lower extremity; 2 occasionally balance, climb, bend, stoop, kneel, squat, and balance; but she cannot 3 4 5 6 7 8 9 climb ladders, ropes or scaffolds; she can occasionally grip and grasp with the left upper extremity; and she should avoid extreme cold/heat/vibrations, machinery, and heights. (AR 14).2 The ALJ subsequently found that plaintiff could perform her past relevant work as a receptionist: The claimant indicated in her work history and testimony that she performed 10 the [receptionist] job within 15 years of adjudication. Therefore, this job 11 meets criteria for past relevant work. [¶] In comparing the claimant s 12 residual functional capacity with the physical and mental demands of this 13 work, the undersigned finds that the claimant is able to perform it as actually 14 and generally performed. The claimant s residual and functional capacity as 15 described herein allows for performance of her past relevant work as a 16 receptionist since this job falls within the parameters of light work as per the 17 18 19 20 vocational expert s testimony. The vocational expert s testimony is being relied upon due to its consistency with the Dictionary of Occupational Titles and her familiarity with the legal requirements of our programs. (AR 15). 21 22 23 Contrary to plaintiff s assertion, the ALJ properly considered the physical and mental demands of plaintiff s past work as a receptionist. See 20 C.F.R. § 404.1560(b) 24 ( We will first compare our assessment of your residual functional capacity with the 25 physical and mental demands of your past relevant work. ); 20 C.F.R. § 416.960(b) 26 2 Light more than 20 pounds at a 27 lifting or carrying ofwork involves lifting no 10 pounds. 20 C.F.R. §§time with frequent objects weighing up to 404.1567(b), 416.967(b). If a claimant can do light work, he or she can also do sedentary work, unless 28 there are additional limiting factors. Id. The Court notes that plaintiff does not challenge the ALJ s determination about plaintiff s RFC. 3 1 (same); Villa v. Heckler, 797 F.2d 794, 797-98 (9th Cir. 1986) ( To determine whether a 2 claim has the residual functional capacity to perform his past relevant work, the [ALJ] 3 4 5 6 7 8 must ascertain the demands of the claimant s former work and then compare the demands with his present capacity. ). The ALJ properly relied on plaintiff s statements about her past receptionist work - plaintiff stated that her job involved message taking, greeting clients, scheduling, [r]eceptionist duties, copy and put together client files, order supplies, data entry, filing, 9 pick up files from wherehouse (sic) ; that each day she walked for one hour, stood for 10 three hours, sat and wrote, typed or handled small objects for eight hours, stooped and 11 knelt for two hours, crouched and reached for four hours, and did not climb, crawl or 12 handle, grab, or grasp big objects; that she had to carry file folders approximately fifty 13 feet and carry boxes of files approximately one hundred feet; that fifty pounds was the 14 heaviest weight she lifted; and that she frequently lifted less than ten pounds (see 1 AR 15 141, 156) -- in assessing the physical and mental demands of that work. See Social 16 Security Ruling 82-62 ( The claimant is the primary source for vocational 17 documentation, and statements by the claimants regarding past work are generally 18 sufficient for determining the skill level; exertional demands and nonexertional demands 19 of such work). 20 While plaintiff focuses on her limitations in pushing/pulling with the left upper and 21 left lower extremities and in gripping/grasping with the left upper extremity (see 22 Plaintiff s Brief at 2-3, 5), those tasks were not included in the job description provided 23 24 by plaintiff, and according to medical records plaintiff is right-handed (see 1 AR 254). 25 Plaintiff failed to show that her RFC prevented her from doing her past receptionist work. 26 See Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001)( At Step Four, claimants have 27 the burden of showing that they can no longer perform their past relevant work. ). Thus, 28 the ALJ did not err in finding that plaintiff can perform her past receptionist work based on the comparison between her RFC and the physical and mental demands of such work. 4 1 Moreover, the ALJ properly relied on the vocational expert s testimony that a 2 person with plaintiff s RFC could perform the job of receptionist using a description 3 consistent with the Dictionary of Occupational Titles ( DOT )3 (see 1 AR 46-48). See 20 4 C.F.R. § 404.1560 (b)(2) ( We may use the services of vocational experts . . . or other 5 resources, such as the Dictionary of Occupational Titles . . . to obtain evidence we need 6 to help us determine whether you can do your past relevant work, given your residual 7 functional capacity. . . . [A] vocational expert . . . may offer expert opinion testimony in 8 9 response to a hypothetical question about whether a person with the physical and mental 10 limitations imposed by the claimant s medical impairment(s) can meet the demands of the 11 claimant s previous work, either as the claimant actually performed it or as generally 12 performed in the national economy. ); 20 C.F.R. § 404.960(b)(2) (same). Plaintiff, 13 relying on the description of strength needed for a receptionist,4 argues that her 14 limitations (occasionally pushing and pulling with the left upper extremity and left lower 15 16 3 The vocational expert cited DOT 323.687-014 which defines the duties of a 17 receptionist as follows: Receives callers at establishment, determines nature of business, and directs callers 18 to destination: Obtains caller s name and arranges for appointment with person called upon. Directs caller to destination and records name, time of call, nature of 19 business, and person called upon. May operate PBX telephone console to receive incoming messages. May type memos, correspondence, reports, and other 20 documents. May work in office of medical practitioner or in other health care facility and be designated Outpatient Receptionist (medical ser.) Or Receptionist, 21 Doctor s Office (medical ser.). May issue visitor s pass when required. May make future appointments and answer inquiries [INFORMATION CLERK (clerical) 22 237.367-022]. May perform variety of clerical duties [ADMINISTRATIVE CLERK (clerical) 219.362-010] and other duties pertinent to type of establishment. 23 May collect and distribute mail and messages. 24 25 4 The following paragraph is located under the description of the duties of a receptionist contained in DOT 237.367-038: 26 STRENGTH: Sedentary Work - Exerting up to 10 pounds of force occasionally (Occasionally: activity or condition exists up to 1;3 of the time) and/or negligible 27 amount of force frequently (Frequently: activity or condition exists from 1/3 to 2/3 of the time) to lift, carry, push, pull, or otherwise move objects, including the 28 human body. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met. 5 1 extremity and occasionally gripping and grasping with left upper extremity) renders her 2 unable to perform the work as a receptionist, as such work requires exerting a negligible 3 4 5 6 7 8 amount of force frequently (push and pull) and handling frequently. Plaintiff claims that as a result of her limitations she would be relegated to performing her job as a one handed worker and therefore would not be able to do various receptionist tasks (operate PBX telephone console to receive incoming messages; type memos, correspondence, reports, and other documents; or collect and distribute mail and messages). (Plaintiff s 9 Brief at 4-5). Contrary to plaintiff s assertion, the job of receptionist as described in DOT 10 11 237.367-038 is not inconsistent with plaintiff s RFC. Since there is an and/or before 12 the words a negligible amount of force frequently, a receptionist may not have to use a 13 negligible amount of force frequently. Moreover, the description plaintiff relies on 14 refers to the strength factor required for sedentary work, which is less than the strength 15 factor required for light work (which the ALJ found petitioner capable of doing). See 16 Selected Characteristics of Occupations Defined in the Revised Dictionary of 17 Occupational Titles, 1993 Edition (noting that the assessment of physical demands is 18 focused primarily on the physical demands of the job not the physical capacities of the 19 worker ). Moreover, by not challenging the ALJ s finding that she can perform light 20 work, plaintiff implicitly admits that she can perform sedentary work, and that at the very 21 least she can exert a negligible amount of force. 22 In any event, even if the ALJ erred in finding that plaintiff can perform her past 23 24 relevant work as a receptionist based on the vocational expert s testimony using the DOT 25 description, the ALJ s finding is harmless in light of the ALJ s other finding that plaintiff 26 can perform her past relevant work as a receptionist (relying on plaintiff s statements of 27 her past work). See Social Security Ruling 82-61 ( [A] claimant will be found to be not 28 disabled when it is determined that he or she retains the RFC to perform: 1. The actual functional demands and job duties of a particular past relevant job; or 2. The functional 6 1 demands and job duties of the occupation as generally required by employers throughout 2 the national economy. ); Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993) ( [S]ince 3 4 5 6 7 8 [the plaintiff] failed to show he was unable to return to his previous job as a receiving clerk/inspector, the burden of proof remained with [the plaintiff]. The vocational expert s testimony was thus useful, but not required. ); Tommasetti v. Astrue, 533 F.3d 1035, 1038 (stating that an ALJ s error is harmless when it is clear from the record that . . . it was inconsequential to the ultimate nondisability determination. ). 9 ORDER 10 11 For the foregoing reasons, the decision of the Commissioner is affirmed. 12 DATED: May 3, 2011 13 14 15 16 STEPHEN J. HILLMAN UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 7
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