Kirkland Dalke v. Michael J. Astrue, No. 5:2010cv01659 - Document 17 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION; AND ORDER by Magistrate Judge Oswald Parada: IT THEREFORE IS ORDERED that Judgment be entered affirming the decision of the Commissioner and dismissing this action with prejudice. (am)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 KIRKLAND DALKE, ) Case No. EDCV 10-01659-OP ) Plaintiff, ) v. ) MEMORANDUM OPINION; ORDER ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ) 17 The Court1 now rules as follows with respect to the disputed issues listed in 18 the Joint Stipulation ( JS ).2 19 / / / 20 / / / 21 / / / 22 23 1 24 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the United States Magistrate Judge in the current action. (See Dkt. Nos. 6, 8.) 25 2 As the Court stated in its Case Management Order, the decision in this case is made on the basis of the pleadings, the Administrative Record, and the Joint 27 Stipulation filed by the parties. In accordance with Rule 12(c) of the Federal Rules 28 of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g). 26 1 1 I. 2 DISPUTED ISSUES 3 As reflected in the Joint Stipulation, the disputed issues raised by Plaintiff as 4 the grounds for reversal and/or remand are as follows: 5 (1) Whether there is an inconsistency between the Dictionary of 6 Occupational Titles ( DOT ) and the Administrative Law Judge s 7 ( ALJ ) finding that Plaintiff can perform the jobs of cashier and 8 electronics worker; and 9 (2) 10 Whether the ALJ made proper credibility findings and properly considered Plaintiff s subjective symptoms. 11 (JS at 3.) 12 II. 13 STANDARD OF REVIEW 14 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s decision 15 to determine whether the Commissioner s findings are supported by substantial 16 evidence and whether the proper legal standards were applied. DeLorme v. 17 Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means more 18 than a mere scintilla but less than a preponderance. Richardson v. Perales, 402 19 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Desrosiers v. Sec y of 20 Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial 21 evidence is such relevant evidence as a reasonable mind might accept as adequate 22 to support a conclusion. Richardson, 402 U.S. at 401 (citation omitted). The 23 Court must review the record as a whole and consider adverse as well as 24 supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). 25 Where evidence is susceptible of more than one rational interpretation, the 26 Commissioner s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 27 (9th Cir. 1984). 28 / / / 2 1 III. 2 DISCUSSION 3 A. The ALJ s Findings. 4 The ALJ determined Plaintiff s residual functional capacity ( RFC ) as follows: 5 [T]he claimant has the residual functional capacity to perform less than 6 a full range of light work . . . the claimant can lift 20 pounds occasionally 7 and 10 pounds frequently; he can be on his feet for two hours in an 8- 8 hour workday; he can sit without restriction; he must be allowed to use 9 a cane as needed. The claimant also has the following seizure 10 precautions: the claimant cannot work at heights; he cannot drive or 11 operate dangerous equipment; he cannot work around open bodies of 12 water. In addition, the claimant is able to perform simple, repetitive 13 tasks; and he can be expected to miss work twice a month. 14 (AR at 11.) Given Plaintiff s age, education, work experience, and RFC, the 15 vocational expert ( VE ) determined that Plaintiff could perform the following 16 jobs: (i) cashier (DOT 211.462-010); and (ii) electronics worker (DOT 726.68717 010). (AR at 39.) In support of the finding of non-disability, the ALJ adopted the 18 VE s findings and determined that Plaintiff could perform these jobs, both existing 19 in significant numbers in the national economy. (Id. at 15.) 20 B. The ALJ s Reliance on the VE s Testimony. 21 Plaintiff contends that the ALJ erred in determining Plaintiff could perform 22 the jobs of cashier and electronics worker. (JS at 3-8.) With respect to the cashier 23 job, Plaintiff contends that under the DOT, the job requires a reasoning level of 24 three, which exceeds his limitation to performing simple, repetitive tasks. (Id. at 425 5.) With respect to the electronics worker job, Plaintiff contends that the job 26 requirements as described in the DOT do not allow him to use his cane, and expose 27 him to driving or operating dangerous equipment, thereby conflicting with his 28 seizure limitations. (Id. at 5-8, 11-12.) 3 1 Once a claimant has met his burden at step four of demonstrating that he 2 cannot perform his past relevant work, the burden shifts to the Commissioner at 3 step five to establish that the claimant is capable of performing other jobs in the 4 economy. 20 C.F.R. §§ 404.1520(f)(g), 404.1560(c); see Johnson v. Shalala, 60 5 F.3d 1428, 1432 (9th Cir. 1995). This burden can be met through the use of a VE. 6 See 20 C.F.R. § 404.1566(e); see also Tackett v. Apfel, 180 F.3d 1094, 1101 (9th 7 Cir. 1999). It can also be satisfied by taking notice of reliable job information 8 contained in various publications, including the DOT. 20 C.F.R. § 404.1566(d). 9 The DOT is a presumptively authoritative source on the characteristics of jobs. 10 See Pinto v. Massanari, 249 F.3d 840, 845-46 (9th Cir. 2001). Nevertheless, the 11 DOT is not the sole source for this information, and the Commissioner may rely on 12 the testimony of a VE for information about jobs. Johnson, 60 F.3d at 1435. 13 Where the VE s testimony differs from the DOT, however, he or she must provide 14 a persuasive rationale supported by the evidence to justify the departure. See Light 15 v. Soc. Sec. Admin., 119 F.3d 789, 793 (9th Cir. 1997). 16 Here, the ALJ made a specific finding that there was no inconsistency 17 between the VE s testimony and the DOT: Pursuant to SSR 00-4p, the vocational 18 expert s testimony is consistent with the information contained in the Dictionary of 19 Occupational Titles. (AR at 15.) Defendant concedes that the VE s testimony 20 was incorrect with respect to Plaintiff s ability to perform the cashier job. (JS at 921 10.) Under the DOT, the cashier job requires a reasoning level of three. DOT 22 211.462-010. The ALJ found, based on the VE s testimony, that Plaintiff could 23 perform the cashier job, despite his finding that Plaintiff is limited to simple, 24 repetitive tasks. (AR at 11, 15.) Numerous district courts in this Circuit have held 25 that a limitation to simple, repetitive tasks is inconsistent with a reasoning level of 26 three. See, e.g., Carney v. Astrue, No. EDCV 09-1984 JEM, 2010 WL 5060488, at 27 *4-5 (C.D. Cal. Dec. 6, 2010) (jobs with a reasoning level of three are unsuitable 28 for someone limited to simple, repetitive tasks ); Burns v. Astrue, No. EDCV 094 1 1686-JEM, 2010 WL 4795562, at *5-6 (C.D. Cal. Nov. 18, 2010) (same); Wright 2 v. Astrue, No. EDCV 10-400 SS, 2010 WL 4553441, at *4-5 (C.D. Cal. Nov. 3, 3 2010) (same); Torrez v. Astrue, No. 1:09-cv-626 JLT, 2010 WL 2555847, at *8-9 4 (E.D. Cal. Jun. 21, 2010) (same); McGensy v. Astrue, No. EDCV 09-152-AGR, 5 2010 WL 1875810, at *3-4 (C.D. Cal. May 11, 2010) (same); Pak v. Astrue, No. 6 EDCV 08-714-OP, 2009 WL 2151361, at *7 (C.D. Cal. Jul. 14, 2009) (same); 7 Tudino v. Barnhart, No. 06-2487 BEN (JMA), 2008 WL 4161443, at *11 (S.D. 8 Cal. Sept. 5, 2008) (same). Accordingly, the ALJ s reliance on the VE s testimony 9 to find that Plaintiff could perform the cashier job was error. However, the ALJ s 10 finding amounts to harmless error. Stout v. Comm r of Soc. Sec., 454 F.3d 1050, 11 1055 (9th Cir. 2006) (an ALJ s error is harmless where such error is 12 inconsequential to the ultimate non-disability determination); Curry v. Sullivan, 13 925 F.2d 1127, 1131 (9th Cir. 1991) (harmless error rule applies to review of 14 administrative decisions regarding disability). As discussed below, the ALJ 15 properly relied on the VE s testimony to find that Plaintiff could perform the 16 electronics worker job. 17 With respect to Plaintiff s contention that the ALJ erroneously relied on the 18 VE s testimony to determine that he could perform the job of electronics worker, 19 his contention is without merit. First, Plaintiff contends that he cannot perform the 20 electronics worker job because the job requires exposure to driving or operating 21 dangerous equipment, which conflicts with his seizure limitations. In support of 22 his contention, Plaintiff recites a number of tasks included in the job description 23 that involve the use of hand tools, power tools, and heating equipment. (JS at 6-7.) 24 However, the job description does not classify any of this equipment as dangerous, 25 and makes no additional references to proximity or exposure to dangerous tools, 26 equipment, or machinery. For example, with respect to moving mechanical 27 parts, the job description states, Not Present - Activity or condition does not 28 exist. DOT 726.687-010. Although the job description states that an electronics 5 1 worker performs any combination of the tasks listed by Plaintiff, it does not state 2 that a worker is required to perform all of them. Id. Moreover, Plaintiff has not 3 provided any evidence demonstrating that the equipment required for the 4 electronics worker job is dangerous. Additionally, the job description does not 5 make any reference to driving. Id. Thus, there is no apparent conflict between the 6 VE s testimony and the DOT with respect to Plaintiff s seizure limitations. 7 Second, Plaintiff contends that it would not be possible for the plaintiff to 8 fully perform this job while using his cane, thus relegating plaintiff to a one9 handed worker. (JS at 7.) Specifically, Plaintiff contends that because he must 10 use his cane, he would not be able to load and unload parts from ovens, baskets, 11 pallets, and racks while using his cane and only using one of his hands. Moreover, 12 plaintiff would not be able to use his cane and only use one hand to move parts and 13 finished components to designated areas of plant [sic]. (Id.) However, the job 14 description does not specify that Plaintiff must use both of his hands to perform 15 these tasks or any other tasks associated with the electronics worker job. DOT 16 726.687-010; see Carey v. Apfel, 230 F.3d 131, 146 (5th Cir. 2000) (finding no 17 conflict between VE s testimony and DOT where DOT did not contain any 18 requirement of bilateral fingering ability or dexterity and VE specifically testified 19 that jobs of cashier and ticket seller could be performed with use of only one arm 20 and hand). Plaintiff merely assumes that the tasks associated with the electronics 21 worker job require the use of two hands. Again, he has not provided any evidence 22 to support his contention. Thus, there is no apparent conflict between the VE s 23 testimony and the DOT with respect to Plaintiff s limitation to using a cane as 24 needed. 25 Further, the ALJ posed a hypothetical question to the VE that included all of 26 Plaintiff s limitations noted in the RFC finding, including his limitations on 27 driving, operating dangerous equipment, and using a cane. (AR at 38-39.) In 28 response, the VE testified that Plaintiff, with the stated limitations, could still 6 1 perform the cashier and electronics worker jobs. (Id. at 39.) The VE s testimony, 2 at least with respect to the electronics worker job, constitutes substantial evidence 3 supporting the ALJ s determination that Plaintiff could perform that job. Tackett, 4 180 F.3d at 1101. 5 Based on the foregoing, the Court finds that the VE s testimony that Plaintiff 6 could perform the electronics worker job did not conflict with the DOT, and, 7 therefore, the ALJ did not err in relying on that testimony. Accordingly, the ALJ s 8 erroneous reliance on the VE s testimony that Plaintiff could perform the cashier 9 job, which conflicted with the DOT, was harmless. 10 C. The ALJ s Credibility Determination and Consideration of Plaintiff s 11 Subjective Symptoms. 12 Plaintiff contends that the ALJ erred in finding that his reported symptoms 13 and limitations were not credible and failing to provide sufficient reasons for 14 rejecting his subjective complaints of impairment. (JS at 12-17, 20.) 15 An ALJ s assessment of pain severity and claimant credibility is entitled to 16 great weight. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. 17 Heckler, 779 F.2d 528, 531 (9th Cir. 1986). An ALJ s credibility finding must be 18 properly supported by the record and sufficiently specific to ensure a reviewing 19 court that the ALJ did not arbitrarily reject a claimant s subjective testimony. 20 Bunnell v. Sullivan, 947 F.2d 341, 345-47 (9th Cir. 1991). Where, as here, an 21 ALJ s disbelief of a claimant s testimony is a critical factor in a decision to deny 22 benefits, the ALJ must make explicit credibility findings. Rashad v. Sullivan, 903 23 F.2d 1229, 1231 (9th Cir. 1990); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 24 1981); see also Albalos v. Sullivan, 907 F.2d 871, 874 (9th Cir. 1990) (an implicit 25 finding that claimant was not credible is insufficient). 26 Under the Cotton test, where the claimant has produced objective medical 27 evidence of an impairment which could reasonably be expected to produce some 28 degree of pain and/or other symptoms, and the record is devoid of any affirmative 7 1 evidence of malingering, the ALJ may reject the claimant s testimony regarding 2 the severity of the claimant s pain and/or other symptoms only if the ALJ makes 3 specific findings stating clear and convincing reasons for doing so. See Cotton v. 4 Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986); see also Smolen v. Chater, 80 F.3d 5 1273, 1281 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993); 6 Bunnell, 947 F.2d at 343. 7 To determine whether a claimant s testimony regarding the severity of her 8 symptoms is credible, the ALJ may consider, inter alia, the following evidence: (1) 9 ordinary techniques of credibility evaluation, such as the claimant s reputation for 10 lying, prior inconsistent statements concerning the symptoms, and other testimony 11 by the claimant that appears less than candid; (2) unexplained or inadequately 12 explained failure to seek treatment or to follow a prescribed course of treatment; 13 (3) the claimant s daily activities; and (4) testimony from physicians and third 14 parties concerning the nature, severity, and effect of the claimant s symptoms. 15 Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); see also Smolen, 80 16 F.3d at 1284. 17 Here, the ALJ provided several clear and convincing reasons for finding 18 Plaintiff s subjective complaints of impairment to be less than credible. 19 Relying on Plaintiff s grandmother s description of his daily activities, the 20 ALJ found Plaintiff not to be a credible witness and discredited the severity of his 21 subjective complaints. (AR at 12.) Plaintiff s grandmother, Juanita Dalke, 22 completed a Function Report - Adult - Third Party on December 23, 2008, 23 regarding Plaintiff. In the report, Ms. Dalke stated that Plaintiff was able to drive a 24 car, shop for groceries, watch television daily and talk on the phone with friends, 25 prepare meals, groom himself, and perform household chores and yard work. (Id. 26 at 161-66.) Thus, the ALJ could properly rely on Plaintiff s daily activities, such 27 as completing household chores and yard work, preparing meals, and shopping, to 28 support his adverse credibility determination. See, e.g., Thomas, 278 F.3d at 9588 1 59 (ALJ may properly consider inconsistencies between claimant s testimony and 2 claimant s daily activities); Morgan v. Apfel, 169 F.3d 595, 599-600 (9th Cir. 3 1999) (ALJ may properly rely on contradictions between claimant s reported 4 limitations and claimant s daily activities); Tidwell v. Apfel, 161 F.3d 599, 602 5 (9th Cir. 1998) (daily activities inconsistent with total disability undermined 6 subjective testimony of disabling pain); Orteza v. Shalala, 50 F.3d 748, 750 (9th 7 Cir. 1995) (ALJ may properly rely on claimant s daily activities, including ability 8 to drive); Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989) (ALJ may properly rely 9 on daily activities inconsistent with claim of disabling pain); SSR 96-7p. 10 The ALJ also found Plaintiff less credible because he avoided mention of his 11 alcoholism, which the ALJ found caused most, if not all, of his complaints. (AR 12 at 12.) An ALJ may consider ordinary techniques of credibility evaluation to 13 determine whether Plaintiff s testimony regarding the severity of his symptoms is 14 credible, such as the Plaintiff s reputation for lying, prior inconsistent statements 15 concerning the symptoms, and other testimony by the Plaintiff that appears less 16 than candid. Smolen, 80 F.3d at 1284; see also Thomas, 278 F.3d at 958-59. 17 Plaintiff testified at the hearing that he did not have a problem with alcohol, and 18 that he did not drink alcohol because he was in AA classes. (AR at 24-25.) 19 However, Plaintiff also testified that he had a few beers every now and then, 20 including the night before the administrative hearing, and that his doctor 21 probably told him to refrain from alcohol when he took Dilantin for his seizures. 22 (Id. at 25, 38.) As the ALJ noted, the medical record indicates that Plaintiff s 23 alcoholism causes most, if not all, of his complaints. (Id. at 13.) Plaintiff 24 previously demonstrated symptoms associated with alcoholism, including the 25 appearance of coffee grounds in his vomitus, severe dental decay, a slightly fatty 26 liver, a mild amount of ascites with associated thickened gallbladder walls, a 27 gallbladder polyp, chronic liver disease, and gastritis. (Id. at 222-23, 242, 303-04, 28 308, 318, 320.) On May 19, 2009, Plaintiff s physician noted that he appeared to 9 1 be very drunk and needed his mother s assistance due to his staggering gait. 2 (Id. at 326.) Dr. Linda Smith, the psychiatric consultative examiner, diagnosed 3 Plaintiff with alcohol abuse and stated that he does not appear to be altogether 4 credible in his responses to her questions. (Id. at 263, 266.) Thus, the ALJ could 5 properly rely on Plaintiff s lack of candor regarding his alcoholism to support his 6 adverse credibility determination. 7 Finally, the ALJ discounted Plaintiff s credibility based on discrepancies 8 between Plaintiff s complaints and the objective medical evidence. With respect to 9 the frequency of Plaintiff s seizures, Plaintiff testified at the administrative hearing 10 that he experienced one seizure a week, black[ed] out for one to two minutes 11 during his seizures, and fell occasionally. (Id. at 21-22.) In a Seizure 12 Questionnaire dated December 11, 2008, Plaintiff stated that he had been having 13 seizures since 2005, and that his seizures lasted between fifteen minutes and five 14 hours, during which he lost consciousness, had convulsions, and bit his tongue. 15 (Id. at 169.) The ALJ found that Plaintiff s own statements regarding the 16 frequency of his seizures were inconsistent. (Id. at 12.) In addition to these 17 inconsistent statements, the ALJ noted that Plaintiff s condition responded well to 18 medication. See, e.g., Warre v. Comm r of Soc. Sec. Admin., 439 F.3d 1001, 1006 19 (9th Cir. 2006) (impairments that can be controlled effectively with medication are 20 not disabling); Crane v. Shalala, 76 F.3d 241, 254 (9th Cir. 1996) (ALJ properly 21 considered claimant s good response to treatment). In contrast to Plaintiff s claim 22 that he had been experiencing seizures since 2005, the ALJ noted that Plaintiff was 23 not prescribed medication for seizures as of August 24, 2007. (Id. at 11, 212, 233.) 24 On June 19, 2008, Plaintiff was prescribed Dilantin for his seizures, shortly after 25 being hospitalized for a seizure. (Id. at 11, 211-12.) On August 21, 2008, Plaintiff 26 reported to his physician that he had experienced a few seizures since his 27 previous visit, but that he was better. (Id. at 11, 246.) On November 20, 2008, 28 Plaintiff s physician noted that Plaintiff s Dilantin level had increased and there 10 1 were no further seizures. (Id. at 11, 245.) On June 9, 2009, Plaintiff s physician 2 noted that Plaintiff had experienced two seizures since his previous visit on May 3 19, 2009, but that his Dilantin level had been increased again, and he had not 4 experienced any more seizures. (Id. at 11, 325.) The State agency consulting 5 physician s findings were consistent with the ALJ s findings. (Id. at 11, 294-95.) 6 Although an ALJ may not disregard a claimant s testimony solely because it is not 7 substantiated affirmatively by objective medical evidence, the lack of medical 8 evidence is a factor that the ALJ can consider in his credibility assessment. Burch 9 v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). Thus, the ALJ could properly rely 10 on the discrepancy between Plaintiff s subjective complaints and the objective 11 medical evidence to support his adverse credibility determination. 12 Based on the foregoing, the Court finds that the ALJ provided clear and 13 convincing reasons, supported by substantial evidence in the record, for rejecting 14 Plaintiff s credibility. Thus, there was no error. 15 IV. 16 ORDER 17 Based on the foregoing, IT THEREFORE IS ORDERED that Judgment be 18 entered affirming the decision of the Commissioner and dismissing this action with 19 prejudice. 20 21 Dated: June 14, 2011 22 HONORABLE OSWALD PARADA United States Magistrate Judge 23 24 25 26 27 28 11

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