Damon Anderson v.Michael J. Astrue, No. 5:2010cv01941 - Document 15 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton, The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. (SEE ORDER FOR FURTHER DETAILS) (lmh)

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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 DAMON ANDERSON, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 10-01941-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 held 1 that Plaintiff can perform his past relevant work as a mail 2 clerk. 3 2. 4 the ALJ properly considered the demands of Plaintiff s past relevant work. 5 3. 6 7 Whether Whether the ALJ properly considered Plaintiff s testimony and made correct credibility findings. (JS at 2-3.) 8 9 This Memorandum Opinion will constitute the Court s findings of 10 fact and conclusions of law. After reviewing the matter, the Court 11 concludes that the decision of the Commissioner must be affirmed. 12 13 I 14 THE ALJ PROPERLY DETERMINED THAT PLAINTIFF 15 CAN PERFORM HIS PAST RELEVANT WORK AS A MAIL CLERK 16 Following an administrative hearing (AR 18-33), at which 17 testimony was taken from a vocational expert ( VE ), the ALJ issued a 18 Decision (AR 9-17), assessing that, at Step Four of the sequential 19 evaluation process, Plaintiff could return to his past relevant work 20 ( PRW ) as a mail clerk, DOT 209.687-026. (AR 16.) 21 the ALJ s determination of Plaintiff s residual functional capacity 22 ( RFC ), which precluded Plaintiff, in part, from working with moving 23 machinery. (AR 13.) 24 This was based on In his first issue, Plaintiff contends that the ALJ erred because 25 his PRW as a mail clerk, as that 26 requirements are defined in the Dictionary of Occupational Titles 27 ( DOT ) would require him to work with moving machinery. 28 contends that there exists a deviation between the identified job and 2 occupation s non-exertional Plaintiff 1 the requirements of the DOT which was not sufficiently explained by 2 the ALJ. 3 In questioning the VE, the ALJ asked her to insure that her 4 testimony is consistent with the DOT, and if not, to identify the 5 deviation. (AR 31.) In response, the VE identified Plaintiff s PRW as 6 mail clerk. 7 because of the moving machinery preclusion is not well taken, because 8 the DOT definition of mail clerk does not require that the person work 9 around moving machinery. Plaintiff s argument that he is not capable of this job As identified, a mail clerk can open 10 envelopes by hand or machine, and can similarly seal envelopes in the 11 same fashion. 12 the function of addressing mail could require use of machinery, but 13 this does not defeat the ALJ s identification of this job as being 14 within Plaintiff s RFC at Step Four, for several reasons. 15 DOT contains a separate job identification entitled Addressing - 16 Machine Operator (Clerical), DOT 208.582-010. Second, as a matter of 17 legal 18 occupations as they are generally performed. (See Social Security 19 Ruling ( SSR ) 00-4p.) 20 slight discrepancy between the job identification in the DOT and a 21 particular 22 apparent distinction. 23 as to allow expert VE testimony to identify that particular job as 24 available to this Plaintiff. Any more substantial deviation, however, 25 would require testimony by the VE to explain the deviation. Any other 26 rule would simply allow a VE s testimony, per se, and without any 27 explanation, 28 requirements of a particular identified job. As the Commissioner concedes, it might be argued that application, the lists the maximum requirements of In this regard, where there might only be a individual s to DOT First, the RFC, a VE s testimony can resolve that Here, the deviation, if any, is so de minimis substitute for the 3 exertional or non-exertional Here, the VE was 1 specifically asked to identify any available jobs in accordance with 2 the requirements of the DOT. 3 that the slight variation or deviation between Plaintiff s RFC and the 4 general 5 sufficiently resolved by the VE s testimony, based upon her expertise. 6 In this circumstance, the Court cannot find any error. non-exertional It can be fair to presume, therefore, requirements of the identified job was 7 Plaintiff s second issue does not merit substantial attention. 8 There he questions whether the ALJ properly considered the demands of 9 his past relevant work. His argument is that the ALJ performed 10 insufficient fact finding in determining the actual physical and 11 mental demands of plaintiff s past relevant work. (JS at 8.) 12 This argument has no merit, because it is factually incorrect. 13 Indeed, there is substantial evidence in the record about Plaintiff s 14 PRW. 15 described his duties in that job. (AR 128-134.) 16 considered vocational information in making his findings of fact. (AR 17 31-32, 129-30, 137, 146-48.) 18 Commissioner 19 information available from various governmental and other publications 20 [including the DOT]. (See 20 C.F.R. §404.1566(d).) 21 22 For example, in his Disability Report - Adult, Plaintiff Thus, will the ALJ take did Further, as required by statute, the administrative take The ALJ further note of notice reliable of and reliable relevant job job information in determining that Plaintiff could return to his PRW. 23 24 II 25 THE ALJ PROPERLY CONSIDERED PLAINTIFF S TESTIMONY AND CREDIBILITY 26 Plaintiff contends that the ALJ improperly rejected his 27 subjective descriptions concerning his seizure disorder. 28 cites a Seizure Questionnaire (AR 143-145), and his testimony at the 4 Plaintiff 1 2 administrative hearing (AR 22-29). The ALJ found that Plaintiff s credibility was limited to the 3 extent it was inconsistent with the defined RFC. In accordance with 4 the requirements of 20 C.F.R. §404.1529, and SSR 96-7p, the ALJ set 5 forth various reasons for depreciating Plaintiff s credibility. These 6 include the fact that Plaintiff is repeatedly not compliant with his 7 medications. (AR 175, 186, 187, 190, 192, 197, 211, 213, 214-15, 216- 8 17, 218-19, 222, 223, 230, 239, 278.) 9 accuracy of this interpretation of his treatment records. Plaintiff has not disputed the Failure to 10 take prescribed medication is a factor which undermines credibility. 11 See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). 12 Plaintiff also made inconsistent statements regarding his 13 seizures. 14 not had a seizure since his Dilantin dose was increased. (AR 15, 203.) 15 In May 2005, however, he reported having seizures almost every day for 16 the last several months. (AR 202.) 17 reporting is a viable credibility assessment factor. 18 As the ALJ noted, he reported in February 2005 that he had Such inconsistency in self- Finally, as the Commissioner notes, there is a lack of objective 19 clinical 20 complaints. 21 abnormalities (AR 15, 196), accompanied by an indication that if 22 Plaintiff were compliant with his medication, his seizures would be 23 reasonably controlled. (AR 232-233.) 24 is, again, a relevant credibility factor. 25 The evidence which corroborates Plaintiff s subjective These include EEG results which reflected no diagnostic Court determines that This lack of objective evidence the ALJ relied upon specific 26 credibility factors which are documented in the record to depreciate 27 Plaintiff s credibility regarding the nature and extent of his seizure 28 disorder. 5 1 2 3 The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 4 5 DATED: September 16, 2011 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 6 7 8 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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