Glenn Wilson v. Michael J. Astrue, No. 5:2011cv00178 - Document 15 (C.D. Cal. 2011)

Court Description: ORDER AFFIRMING DECISION OF COMMISSIONER by Magistrate Judge Robert N. Block, (See document for details.) IT THEREFORE IS ORDERED that Judgment be entered affirming the decision of the Commissioner and dismissing this action with prejudice. (rla)

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1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 17 18 GLENN WILSON, ) Case No. EDCV 11-0178 RNB ) Plaintiff, ) ) ORDER AFFIRMING DECISION OF vs. ) COMMISSIONER ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ) _____________________________ The Court now rules as follows with respect to the two disputed issues listed 19 in the Joint Stipulation.1 20 With respect to Disputed Issue No. 2, the Court notes that, while the 21 description in the Dictionary of Occupational Titles ( DOT ) for the job of Auction 22 Assistant indicates that the job requires reaching frequently, it does not specify that 23 24 1 As the Court advised the parties in its Case Management Order, the 25 decision in this case is being made on the basis of the pleadings, the administrative 26 record ( AR ), and the Joint Stipulation ( Jt Stip ) filed by the parties. In accordance with Rule 12(c) of the Federal Rules of Civil Procedure, the Court has determined 27 which party is entitled to judgment under the standards set forth in 42 U.S.C. ยง 28 405(g). 1 1 the job requires more than occasional over shoulder work bilaterally. The vocational 2 expert ( VE ) at the September 10, 2010 administrative hearing, Mr. Scott, testified 3 in response to the second hypothetical posited by the Administrative Law Judge 4 ( ALJ ) that, even with a limitation to no more than occasional over shoulder work 5 bilaterally, a hypothetical person matching plaintiff s vocational profile and plaintiff s 6 other physical and mental limitations could perform the auction assistant job. (See 7 AR 296.) Indeed, Mr. Scott testified in response to the ALJ s third hypothetical that, 8 even if the hypothetical person were altogether precluded from over shoulder work 9 bilaterally, the person could still perform that job. (See id.) In response to the ALJ s 10 specific question, Mr. Scott further testified that his testimony was consistent with the 11 DOT. (See AR 297.) The ALJ subsequently established that Mr. Scott s opinions 12 were based on the auction assistant job as generally performed, as distinguished from 13 how plaintiff performed it. (See AR 299.) 14 Plaintiff s contention that there was an inconsistency between his residual 15 functional capacity as determined by the ALJ and the job requirements for the auction 16 assistant job as generally performed in the national economy per the DOT is based on 17 the testimony of Ms. Porter, who provided vocational expert testimony at the previous 18 administrative hearing held before a different ALJ on March 31, 2008. (See Jt Stip 19 at 15-16.) In response to a hypothetical posited to her, Ms. Porter testified that she 20 did not think a preclusion from any reaching with the right upper extremity above 21 shoulder level would permit the performance of the auction assistant job because she 22 thought that the auction assistant job would require lifting over the head. (See AR 23 36-37.) It is clear to the Court that, in making his vocational determination, ALJ 24 Radensky was relying on Mr. Scott s testimony at the September 10, 2010 25 administrative hearing, not Ms. Porter s testimony at the March 31, 2008 26 27 28 2 1 administrative hearing.2 Ms. Porter s testimony does not establish that Mr. Scott s 2 testimony deviated from the DOT. To the extent that Ms. Porter s testimony 3 conflicted with Mr. Scott s testimony, it was within the ALJ s province to resolve that 4 conflict adversely to plaintiff. See Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 5 1971) ( Where there is conflicting evidence sufficient to support either outcome, we 6 must affirm the decision actually made. ). 7 With respect to Disputed Issue No. 1, the Court notes that the determination 8 that a claimant is capable of performing his/her past relevant work properly may be 9 based on either the past relevant work as performed by the claimant or the past 10 relevant work as generally performed in the national economy. See, e.g., Matthews 11 v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993); Sanchez v. Secretary of Health and 12 Human Svcs., 812 F.2d 509, 511 (9th Cir. 1987). Here, the ALJ found, based on Mr. 13 Scott s expert testimony, that plaintiff was able to perform his past work as an 14 assistant ring person at an auction as it is normally performed. (See AR 245.) 15 Accordingly, even if plaintiff is correct that the ALJ erred in failing to make specific 16 findings of fact as to the physical and mental demands of plaintiff s past work as an 17 assistant ring person at an auction (see Social Security Ruling 82-623; see also Pinto 18 v. Massanari, 249 F.3d 840, 844-45 (9th Cir. 2001)), the Court finds that any error by 19 the ALJ in failing to do so here was harmless error because plaintiff has failed to 20 convince the Court that there was any inconsistency between his residual functional 21 capacity as determined by the ALJ and the job requirements for his auction assistant 22 job as generally performed in the national economy per the DOT. See Curry v. 23 24 2 For the reasons stated by the Commissioner (see Jt Stip at 10-12), the Court is satisfied that the mis-reference to the vocational expert s name (see AR 245) 26 was either a typographical or a clerical error. 27 3 The Ninth Circuit has stated that Social Security Rulings are binding on 28 ALJs. See Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). 25 3 1 Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1991) (harmless error rule applies to review 2 of administrative decisions regarding disability). 3 Consequently, the Court finds that reversal is not warranted based on the ALJ s 4 alleged error in finding that plaintiff was capable of performing his past work as an 5 auction assistant because plaintiff has not met his burden at Step Four of the 6 Commissioner s sequential evaluation process to show that he can no longer perform 7 his past relevant work. 8 9 ******************* IT THEREFORE IS ORDERED that Judgment be entered affirming the 10 decision of the Commissioner and dismissing this action with prejudice. 11 12 DATED: October 31, 2011 13 14 15 ROBERT N. BLOCK UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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