Esmeralda Madrid v. Michael J. Astrue, No. 5:2010cv01288 - Document 18 (C.D. Cal. 2011)
Court Description: MEMORANDUM OF DECISION by Magistrate Judge Andrew J. Wistrich. The Commissioner's decision is supported by substantial evidence and reflects application of the proper legal standards. Accordingly, the Commissioner's decision is affirmed. IT IS SO ORDERED. (mz)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 13 14 15 16 17 ESMERALDA MADRID, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the Social ) Security Administration, ) ) Defendant. ) _____________________________________) Case No. EDCV 10-1288 AJW MEMORANDUM OF DECISION 18 Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the 19 Social Security Administration (the Commissioner ), denying plaintiff s application for Supplemental 20 Security Income benefits. The parties have filed a Joint Stipulation ( JS ) setting forth their contentions 21 with respect to each disputed issue. 22 Administrative Proceedings 23 The parties are familiar with the procedural history of this case, which is summarized in the Joint 24 Stipulation. [See JS 2]. In a written hearing decision that constitutes the final decision of the Commissioner, 25 an administrative law judge ( ALJ ) found that plaintiff had severe impairments consisting of obesity, type 26 2 diabetes mellitus, status post fracture of the left wrist, hypertension, and depressive disorder not otherwise 27 specified. [JS 2; Administrative Record ( AR ) 10]. The ALJ found that plaintiff retained the residual 28 functional capacity ( RFC ) to perform the exertional requirements of light work, but that she is precluded 1 from climbing ladders, ropes, or scaffolds; working at heights; balancing; and performing forceful gripping, 2 grasping, or twisting with her left hand. The ALJ also restricted plaintiff to 4- and 5-step moderately 3 complex and habituated tasks that do not involve responsibility for the safety of others or fast-paced work. 4 [AR 11]. The ALJ concluded that plaintiff was not disabled because her RFC did not preclude her from 5 performing work available in significant numbers in the national economy. [See JS 2; AR 16-17]. 6 Standard of Review 7 The Commissioner s denial of benefits should be disturbed only if it is not supported by substantial 8 evidence or is based on legal error. Stout v. Comm r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 9 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). Substantial evidence means more than 10 a mere scintilla, but less than a preponderance. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 11 2005). It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 12 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is 13 required to review the record as a whole and to consider evidence detracting from the decision as well as 14 evidence supporting the decision. Robbins v. Soc. Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); 15 Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). Where the evidence is susceptible to more than 16 one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld. 17 Thomas, 278 F.3d at 954 (citing Morgan v. Comm r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)). 18 Discussion 19 Alternative work finding 20 Plaintiff does not challenge the ALJ s RFC assessment or the manner in which he framed his 21 hypothetical question. Plaintiff contends, however, that the ALJ erred in relying on the testimony of the 22 vocational expert ( VE ) in response to the ALJ s hypothetical question incorporating plaintiff s limitations 23 that were supported by the record. Plaintiff contends that there are apparent inconsistencies between the 24 VE s testimony in response to the hypothetical question and information in the Dictionary of Occupational 25 Titles ( DOT ). Plaintiff argues that the ALJ erred in failing to acknowledge or reconcile the conflict in 26 his decision, and that the vocational expert s testimony did not constitute substantial evidence supporting 27 the ALJ s disability determination. 28 At step five of the sequential evaluation procedure, the Commissioner has the burden to establish 2 1 that there are a significant number of jobs in the national economy that the claimant can perform. The 2 Commissioner may meet that burden by taking the testimony of a vocational expert, or by referring to the 3 grids. Tackett v. Apfel, 180 F.3d 1094, 1100-1101 (9th Cir. 1999). Where the testimony of a VE is used 4 at Step Five, the VE must identify a specific job or jobs in the national economy having requirements that 5 the claimant's physical and mental abilities and vocational qualifications would satisfy. Osenbrock v. 6 Apfel, 240 F.3d 1157, 1162-1163 (9th Cir. 2001). 7 An ALJ may not rely on a VE s testimony regarding the requirements of a particular job without first 8 inquiring whether that testimony conflicts with job information in the DOT. Massachi v. Astrue, 486 F.3d 9 1149, 1152 (9th Cir. 2007). A VE s testimony may give rise to such a conflict in at least two different 10 ways. First, the vocational expert may testify that a particular job requires a particular exertional or skill 11 level, when the DOT expressly provides that the job requires a different exertional level. Carey v. Apfel, 12 230 F.3d 131, 144 n.2 (5th Cir. 2000). A second, and different type of conflict may arise when the [VE s] 13 testimony places the ALJ's finding with respect to the claimant's residual functional capacity or the 14 claimant's specific impairments in conflict with the exertional or skill level or the specific skills required 15 for the identified jobs in the DOT. Carey, 230 F.3d at 144 n.2. 16 Neither the DOT nor the VE s testimony automatically trumps when there is a conflict. Massachi, 17 486 F.3d at 1153 (footnote omitted). The ALJ must obtain an explanation from the VE for any conflict and 18 must then determine whether the explanation is reasonable, and whether a basis exists for relying on the 19 expert rather than the DOT. Massachi, 486 F.3d at 1153; see Johnson v. Shalala, 60 F.3d 1428, 1428 (9th 20 Cir. 1995) (stating that an ALJ may rely on expert testimony which contradicts the DOT only insofar as 21 the record contains persuasive evidence to support the deviation ). 22 During the May 7, 2009 administrative hearing [AR 56-72], the ALJ posed hypothetical questions 23 to the VE. One such question asked the VE to assume the existence of a right-hand dominant hypothetical 24 individual with plaintiff s age, education, and prior work experience who can lift and carry up to ten pounds 25 frequently and twenty pounds occasionally; cannot climb ladders, ropes or scaffolds, work at heights, 26 balance, or perform forceful gripping, grasping, or twisting with the non-dominant left hand; can perform 27 28 3 1 occasional fine manipulation with the non-dominant left hand1; has no limitations with the dominant right 2 hand; and can perform moderately complex tasks, four to five steps, habituated, but should not be placed 3 in charge of the safety of others or required to do any fast-paced work. [AR 69]. 4 he VE testified that such an individual could not perform plaintiff s past relevant work, but was not 5 precluded from performing the light, unskilled jobs of information clerk, DOT occupational code number 6 237.367-018; shoe packager, DOT occupational code number 920.687-166; and counter clerk, DOT 7 occupational code number 249.366-010. [AR 69-70]. The VE testified that those three jobs were not an 8 exhaustive list, but were representative. [AR 70]. Asked whether his testimony was consistent with the 9 DOT, the VE testified that it was. [AR 70]. The ALJ relied on the VE s testimony to find that plaintiff could 10 perform the jobs identified by the VE and therefore was not disabled. [AR 16-17]. 11 Plaintiff contends that there are apparent, unresolved inconsistencies between the occupational 12 definitions in the DOT for the jobs of counter clerk, shoe packager, and information clerk, and the VE s 13 testimony that a person with plaintiff s RFC could perform those jobs. 14 Counter clerk 15 16 Plaintiff argues that her RFC entirely precludes handling with the left hand, and therefore she cannot perform the occasional handling required to perform the DOT job of counter clerk. 17 A limitation in the ability to grip, grasp, or twist is a limitation in handling, which the 18 Commissioner defines as the ability to seiz[e], hold[ ], grasp[ ], turn[ ], or otherwise work[ ] primarily with 19 the whole hand or hands . . . . SSR 85-15, 1985 WL 56857, at *7. The DOT states that the job of counter 20 clerk requires handling (as well as reaching, and fingering) occasionally, meaning up to one-third of the 21 time. [See JS, Exhibit B]. 22 According to the Commissioner, reaching and handling are required in almost all jobs. Significant 23 24 25 26 27 28 1 The ALJ omitted the limitation to occasional fine manipulation with the left hand from his RFC finding. However, plaintiff acknowledged that the omission did not prejudice her because it was included in the ALJ s hypothetical question to the VE, upon whose testimony the ALJ relied to identify alternative jobs within plaintiff s RFC. See McLeod v. Astrue, F.3d , 2011 WL 1886355, *4-*5 (9th Cir. 2011) (holding that under the harmless error standard applicable to social security disability appeals, the record must show a substantial likelihood of prejudice to the party claiming error in order to warrant reversal and remand). 4 1 limitations of reaching or handling, therefore, may eliminate a large number of occupations a person could 2 otherwise do. Varying degrees of limitations would have different effects, and the assistance of a VS may 3 be needed to determine the effects of the limitations. SSR 85-15, 1985 WL 56857, at *7. 4 Consistent with SSR 85-15, the ALJ obtained VE testimony, and the VE identified jobs that a person 5 with plaintiff s limitations can perform. Plaintiff has not demonstrated that an actual or apparent conflict 6 exists between the VE s testimony and the DOT. Contrary to plaintiff s assertion, the ALJ did not preclude 7 plaintiff from all handling with the left upper extremity. Instead, the ALJ s hypothetical question and his 8 RFC finding posit an inability to perform forceful gripping, grasping, or twisting with the non-dominant 9 left hand. [AR 11, 68-69]. The ALJ found that plaintiff could perform occasional fine manipulation with 10 the left hand and had no limitation involving the dominant right hand. [AR 68-69]. The VE testified that the 11 DOT job of counter clerk was compatible with the RFC described by the ALJ. [AR 68-69]. The VE also 12 testified that his testimony was consistent with the DOT. 13 Plaintiff has not argued or shown that a person who has full use of the dominant right hand but 14 cannot forcefully grip, grasp, or twist with left hand is unable to perform the occasional handling required 15 for the DOT job of counter clerk. Neither the definition of handling nor the DOT in general contain[s] 16 any requirement of bilateral fingering ability or dexterity . . . . Carey, 230 F.3d at 146. The DOT rates 17 the relative level of manual dexterity and finger dexterity required to perform the job of counter clerk 18 as equivalent to that possessed by the lowest third of the population, excluding the bottom ten percent. [JS, 19 Exhibit B]. In other words, the DOT indicates that the job requires a relatively low degree of manual 20 dexterity, which supports the inference that a partial limitation in handling with the non-dominant hand 21 would not prohibit performance of that job. 22 Plaintiff argues that the VE does not appear to have eroded the occupational base to account for 23 the handling impairment, but plaintiff has not shown that any erosion of the light, unskilled occupational 24 base was warranted. In SSR 96-9p, the Commissioner stated that 25 [a]ny significant manipulative limitation of an individual's ability to handle and work with 26 small objects with both hands will result in a significant erosion of the unskilled sedentary 27 occupational base. . . . When the limitation is less significant, especially if the limitation is 28 in the non-dominant hand, it may be useful to consult a vocational resource. 5 1 SSR 96-9p, 1996 WL 374185, at *8. The Commissioner s policy rulings do not suggest that such a 2 limitation will significantly erode the light occupational base. In this case, of course, plaintiff is not 3 restricted to sedentary work, her handling limitation involves only the non-dominant left hand, she is not 4 totally precluded from handling with that hand, and the ALJ did consult a VE to ascertain the effects of that 5 limitation. 6 Even the total loss of use of the dominant hand, such as that resulting from an amputation, does not 7 necessarily preclude reliance on a VE s testimony that a claimant can perform jobs classified by the DOT 8 as requiring some degree of handling and manual dexterity. The Fifth Circuit, for example, held that no 9 apparent or actual conflict existed between the VE s testimony and the DOT where the VE testified that the 10 claimant, who had no use of his non-dominant left hand due to amputation, could perform the light, 11 unskilled jobs of cashier or ticket taker, and the DOT specified that both of those jobs require frequent 12 handling (from one-third to two-thirds of the time) and manual dexterity equivalent to that possessed by in 13 the lowest one-third of the population excluding the bottom ten percent. Carey, 230 F.3d at 145-146; see 14 also Waite v. Bowen, 819 F.2d 1356, 1358, 1360-1361 (7th Cir. 1987) (holding that the ALJ permissibly 15 relied on a VE s testimony that a claimant with no use of his non-dominant left arm could perform light and 16 sedentary alternative jobs, including retail sales clerk, telephone operator, ticket agent, and crossing guard). 17 There was no conflict requiring resolution by the ALJ between the DOT and the VE s testimony that 18 a person with plaintiff s limitations, including a preclusion against forceful gripping, grasping, and twisting, 19 could perform the DOT job of counter clerk. Accordingly, the ALJ did not err in relying on the VE s 20 testimony, which amounts to substantial evidence supporting the ALJ s finding that alternative jobs exist 21 within plaintiff s RFC. The VE also testified that 1,400 counter clerk jobs were available in the regional 22 economy (defined as Orange, Riverside, San Bernardino, and Los Angeles counties), and that 23,000 such 23 jobs were available in the national economy. That number of alternative jobs is sufficient to support a 24 finding of non-disability at step five. Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (holding that 25 between 1000 and 1500 jobs in the local area was a significant number of jobs) (citing Barker v. Sec y of 26 Health & Human Servs., 882 F.2d 1474, 1479 (9th Cir. 1989)). Accordingly, it is unnecessary to consider 27 plaintiff s contentions that the ALJ erred in relying on the VE s testimony that the jobs of information clerk 28 and shoe packager are within plaintiff s RFC. 6 1 2 Conclusion The Commissioner's decision is supported by substantial evidence and reflects application of the 3 proper legal standards. Accordingly, the Commissioner's decision is affirmed. 4 IT IS SO ORDERED. 5 6 June 17, 2011 7 8 9 _______________________________ ANDREW J. WISTRICH United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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