Oscar Valdez v. Michael J. Astrue, No. 5:2010cv01647 - Document 15 (C.D. Cal. 2011)
Court Description: MEMORANDUM AND OPINION by Magistrate Judge Victor B. Kenton. The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. (rh)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 OSCAR VALDEZ 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 10-01647-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for 20 disability benefits. 21 consented that the case may be handled by the Magistrate Judge. 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the record before 24 the Commissioner. 25 ( JS ), and the Commissioner has filed the certified Administrative 26 Record ( AR ). Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the Joint Stipulation 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge ( ALJ ) properly 1 determined Plaintiff capable of performing past relevant 2 work as a cashier (JS at 3); and 3 2. Whether the ALJ made proper credibility findings (JS at 8.) 4 5 This Memorandum Opinion will constitute the Court s findings of 6 fact and conclusions of law. After reviewing the matter, the Court 7 concludes that the decision of the Commissioner must be affirmed. 8 9 I 10 THE ALJ DID NOT ERR IN DETERMINING THAT PLAINTIFF 11 CAN PERFORM HIS PAST RELEVANT WORK AS A CASHIER 12 In Plaintiff s first issue, he asserts that the ALJ erroneously 13 determined that he could perform his past relevant work as a cashier. 14 (See JS at 3, et seq.; AR at 19, ¶ 6.) 15 Plaintiff notes that the ALJ determined his residual functional 16 capacity ( RFC ) to include the ability to occasionally do fine 17 fingering with the right hand. (AR 16.) 18 of 19 requirements of Plaintiff s past relevant work ( PRW ) as a cashier II 20 (see DOT 211.462-010), this job includes a requirement of frequent 21 fingering, defined as a range of one-third to two-thirds of the time. 22 (See JS, Exhibit [ Ex. ] 2.) 23 disagree. 24 job inferentially includes the requirement of undoubtedly requir[ing] 25 the use of frequent fine fingering to effectively perform the required 26 tasks, ... [and] require[s] bilateral manual dexterity. (JS at 3.) 27 28 Occupational Titles ( DOT ) According to the Dictionary definition of the exertional In this respect, the parties do not Plaintiff s assertion is that the DOT description of this Plaintiff s argument is, essentially, that there is an unexplained deviation between the exertional requirements of the 2 1 identified DOT job and Plaintiff s RFC. Plaintiff correctly cites 2 Ninth Circuit case law which squarely holds that in the event there is 3 such a deviation, the ALJ must provide a specific explanation for it. 4 See JS at 5, citing Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 5 2001); Light v. Social Security Administration, 119 F.3d 789, 793 (9th 6 Cir. 1997), citing Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 7 1995). 8 As to this issue, the principal and defining issue is whether 9 there is, in fact, a deviation between the DOT requirements of the 10 identified job and Plaintiff s RFC. Although Plaintiff does have some 11 limitations in his ability to perform fine manipulations with his 12 right hand, there are no such restrictions identified with the use of 13 his left hand. 14 administrative hearing provides no basis upon which to define the DOT 15 job as requiring fine fingering or such manipulative functions with 16 both hands. Indeed, the hypothetical questions posed to the VE at the 17 hearing by the ALJ assumed only occasional fine fingering with the 18 right hand. (AR 42, 43.) 19 Plaintiff could indeed do his PRW. 20 Testimony by the vocational expert ( VE ) at the In response, the VE identified that The DOT does not expressly contain a requirement, as to this 21 identified job, that it requires fine fingering with both hands. 22 Indeed, numerous case decisions both on the appellate and trial level 23 have found that in similar cases, it cannot be concluded that a 24 requirement of bilateral fine fingering can be read into a DOT job 25 description, where the job description does not explicitly state as 26 much. 27 Feibusch v. Astrue, 2008 WL 583554, *5 (D. Haw., 2008); Diehl v. 28 Barnhart, 357 F.Supp.2d 804, 822 (E.D. Pa. 2005); McConnell v. Astrue, See, e.g., Carey v. Apfel, 230 F.3d 131, 146 (5th Cir. 2000); 3 1 2010 WL 1946728 (C.D. Cal. 2010). 2 Moreover, even if the testimony of a VE is not required in a case 3 where resolution of the disability question occurs at Step Four of the 4 sequential evaluation process, here, the ALJ in fact did utilize a 5 VE s testimony to assist in the determination. 6 2009 WL 4980273, *3 (C.D. Cal. 2009)(where nature of particular action 7 required in performance of job not specified in DOT, ALJ may properly 8 rely on testimony from vocational expert to determine whether claimant 9 can perform job in question despite claimant s limitations). 10 In this case, the limitations posed See Fuller v. Astrue, to the VE adequately 11 encompass Plaintiff fine fingering limitations, and thus, the ALJ was 12 entitled to rely upon the VE s testimony that Plaintiff could perform 13 his PRW. 14 regard to the first issue asserted by Plaintiff. Based on this analysis, the Court does not find error with 15 16 II 17 THE ALJ MADE PROPERLY CREDIBILITY FINDINGS 18 In Plaintiff s second issue, he asserts that the ALJ did not make 19 proper 20 Plaintiff 21 supported by specific, cogent reasons. (See JS at 9, and citations.) 22 In his decision, the ALJ relied upon several discrete reasons to 23 assess, and depreciate, Plaintiff s subjective complaints. This Court 24 must determine whether the ALJ s findings were specific and supported 25 by the record. 26 Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). 27 28 findings to asserts depreciate that the his ALJ s subjective findings pain (see AR complaints. 19) are not See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989); The ALJ provided three reasons to detract from Plaintiff s credibility. First, he observed that the objective medical evidence 4 1 did not support the degree of pain complaints that Plaintiff asserted. 2 (See AR at 30-31.) 3 legal contention that a contradiction between the medical record and 4 a claimant s subjective testimony is a sufficient reason, in and of 5 itself, to make a credibility finding (see JS at 12, citing Carmickle 6 v. Commissioner of Social Security Administration, 533 F.3d 1155 1161 7 (9th 8 discrepancy can form one basis upon which a credibility assessment may 9 be made. Cir. While the Court disagrees with the Commissioner s 2008)), it is a correct legal statement that such a Here, the ALJ relied upon the testimony of the medical 10 expert ( ME ) who had reviewed the entire medical record and indicated 11 that Plaintiff could work with some stated limitations. (AR 17-18, 29- 12 36.) 13 prepared by an unknown person, and the limitations set forth in that 14 check-box form are not substantiated by objective medical findings. 15 It is therefore not entitled to deference. 16 The check-box medical form in the record (AR 373-375) was The ALJ also noted that Plaintiff has followed a conservative 17 treatment regimen. 18 substantiated 19 recognized as valid. 20 Cir. 2007), cert. denied, 128 S.Ct. 1068 (2008). 21 received only brief periods of steroid injections or physical therapy, 22 and some medication. by (AR the 18-19.) record, This and as conclusion a is, credibility in fact, factor, is See Parra v. Astrue, 481 F.3d 742, 750-51 (9th Here, Plaintiff 23 As a final factor, the ALJ did note that Plaintiff s condition 24 improved when he complied with his prescribed treatment regimen. (AR 25 18-19.) 26 and by case precedent as a valid credibility assessment factor. 27 Tommasetti v. Astrue, 533 F.3d 1035, 1039-40 (9th Cir. 2008). 28 Again, this observation is supported by the medical record, See For the foregoing reasons, the Court cannot second-guess the 5 1 ALJ s 2 evidence in the record, and is supported by specific and legitimate 3 reasons. 4 5 6 credibility assessment, since it is The decision of the ALJ will be affirmed. based on substantial The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 7 8 DATED: July 25, 2011 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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