Alonzo Clayton v. Michael J. Astrue, No. 5:2010cv01588 - Document 16 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. For these reasons, the Court concludes that the Agency's decision that Plaintiff is not disabled is supported by substantial evidence and is not based on legal error. As such, it is affirmed. IT IS SO ORDERED. **PLEASE REVIEW DOCUMENT FOR FULL AND COMPLETE DETAILS** (ca)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 ALONZO CLAYTON, Plaintiff, 11 12 13 14 v. MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 10-1588-PJW MEMORANDUM OPINION AND ORDER 16 17 Plaintiff appeals the decision of Defendant Social Security 18 Administration ( the Agency ), denying his application for 19 Supplemental Security Income ( SSI ). 20 Administrative Law Judge ( ALJ ) erred in concluding that he could 21 work despite his limitations. 22 Court finds that, even assuming that the ALJ erred in part, any error 23 was harmless. 24 He claims that the For the reasons set forth below, the The ALJ determined that Plaintiff had the residual functional 25 capacity to perform light work with the following qualifications that 26 are relevant to this appeal: (1) avoid concentrated exposure to 27 hazards; (2) limited to simple work with up to three-step instructions 28 in a relatively habituated setting; (3) no work around fast-moving 1 or hazardous machinery. 2 vocational expert testified that, with these limitations, and 3 consistent with the Dictionary of Occupational Titles ( DOT ), 4 Plaintiff could perform three jobs: marker (DOT No. 209.587-034), 5 route aide (DOT No. 239.687-010), and information clerk (DOT No. 237- 6 367-018). 7 (Administrative Record ( AR ) 12-13.) The (AR 66-67.) Plaintiff complains that all three jobs require capabilities that 8 he does not have or expose him to hazards that he must avoid. 9 Stip. at 3-6.) (Joint He argues, for example, that the duties of a marker-- 10 which include mark price tickets, attach the price tickets to 11 merchandise, record number and types of articles marked and pack them 12 in boxes, compare printed price tickets with entries on purchase order 13 to verify accuracy, and notify supervisors of discrepancies -clearly 14 exceed his limitation to simple work that involves one to three step 15 instructions. 16 The fact that there are numerous duties listed in the DOT for a 17 particular job does not mean that an employee is necessarily required 18 to do every task identified therein at one time. Nor is there 19 anything in the DOT that suggests that he would. Further, the 20 vocational expert testified that his testimony was consistent with the 21 DOT. 22 that now represents Plaintiff in this court--did not challenge this 23 testimony, ask about any potential inconsistencies between the 24 testimony and the DOT, or inquire of the vocational expert as to the (AR 67.) (Joint Stip. at 6.) The Court simply does not agree. And counsel for Plaintiff -a lawyer from the same firm 25 26 27 28 2 1 basis of his opinion that Plaintiff could perform this job despite his 2 limitations.1 (AR 67.) For these reasons, the Court concludes that the ALJ did not err 3 4 when he found, consistent with the vocational expert s testimony, that 5 Plaintiff could perform the job of marker despite the fact that he was 6 limited to simple work, involving one- to three-step instructions. The vocational expert testified that there were 2,900 marker jobs 7 8 in the local economy and 494,000 jobs in the national economy. 9 67.) (AR These numbers are sufficient to support a finding of not 10 disabled. 11 (holding 1,300 jobs in the local economy and 622,000 jobs in the 12 national economy support finding of not disabled). 13 See Thomas v. Barnhart, 278 F.3d 947, 960 (9th Cir. 2002) Plaintiff s other arguments, though colorable, do not compel a 14 different result. He complains, for example, that he is unable to 15 perform the work of an information clerk because it requires Level 4 16 reasoning, which he believes is beyond his capabilities, i.e., simple 17 work with up to three-step instructions. 18 Level 4 reasoning requires a worker to: (Joint Stip. at 3-5.) 19 Apply principles of rational systems to solve practical 20 problems and deal with a variety of concrete variables 21 in situations where only limited standardization 22 23 24 25 26 27 28 1 The Court notes that it is not unusual for social security lawyers to ask and receive in excess of $900 per hour for their work in these cases. Presumably, these lawyers are experts in social security law and appear at the administrative hearings to vigorously advocate for their clients. As such, counsel s argument 18 months after the administrative hearing that the vocational expert s testimony was inconsistent with the DOT rings somewhat hollow. Had counsel raised that issue at the time, the ALJ, the vocational expert, and counsel could have addressed the issue and resolved any real or perceived questions about the testimony. 3 1 exists. 2 in written, oral, diagrammatic, or schedule form. 3 Examples of rational systems are: bookkeeping, internal 4 combustion engines, electric wiring systems, house 5 building, farm management, and navigation. 6 7 Interpret a variety of instructions furnished DOT 237.367-018. Arguably, someone who is limited to simple work with up to three- 8 step instructions could not perform Level 4 work. Even were the Court 9 to reach this conclusion, however, Plaintiff would still not be 10 entitled to relief because this alleged error would not affect the 11 ALJ s ultimate non-disability determination since, even without these 12 jobs, Plaintiff would still be found to be not disabled. 13 Carmickle v. Comm r, Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th 14 Cir. 2008) (explaining harmless error rule in social security cases 15 supports upholding ALJ s decision if error was inconsequential to 16 ultimate nondisability determination). 17 See, e.g., Plaintiff also complains that the ALJ erred when he concluded 18 that Plaintiff could work as a route aide because it required him to 19 be exposed to dangerous machinery, i.e., conveyor belts, and Plaintiff 20 was restricted from concentrated exposure to hazards and fast-moving 21 machinery. 22 with Plaintiff, it would be of no import because the ALJ s finding 23 that Plaintiff could perform the marker job is supported by the DOT 24 and the record and there are a sufficient number of marker jobs in the 25 local and national economy to support the ALJ s ultimate finding that 26 Plaintiff was not disabled. (Joint Stip. at 5-6.) Again, even were the Court to agree 27 28 4 1 For these reasons, the Court concludes that the Agency s decision 2 that Plaintiff is not disabled is supported by substantial evidence 3 and is not based on legal error. 4 IT IS SO ORDERED. 5 As such, it is affirmed. DATED: October 28, 2011 6 7 8 9 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S:\PJW\Cases-Soc Sec\CLAYTON, A 1588\memorandum opinion and order.wpd 5
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