Lawrence E Saiz v. Michael J Astrue, No. 5:2011cv00290 - Document 27 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle. IT IS ORDERED that Judgment shall be entered affirming the decision of the Commissioner of the Social Security Administration. (mz)
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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 LAWRENCE E. SAIZ, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. EDCV 11-00290-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on February 22, 2011, seeking review of 19 the denial of plaintiff s application for a period of disability, 20 disability insurance benefits ( DIB ), and supplemental security income 21 ( SSI ). On March 23, 2011, the parties consented, pursuant to 28 22 U.S.C. 636(c), 23 Magistrate Judge. 24 2012, in which: 25 decision and remanding this case for the payment of benefits or, 26 alternatively, 27 Commissioner requests that his decision be affirmed or, alternatively, 28 remanded for further administrative proceedings. § to proceed before the undersigned United States The parties filed a Joint Stipulation on February 1, plaintiff seeks an order reversing the Commissioner s for further administrative proceedings; and the 1 On March 6, 2012, this Court issued a minute order ( Minute Order ) 2 requesting that the Commissioner submit: (1) an improved transcript of 3 the 4 limitations were included in the hypothetical question to the vocational 5 expert; and/or (2) supplemental briefing that supports the claim of 6 harmless error. 7 stipulated to withdraw Disputed Issue I ( Whether The ALJ Properly 8 Propounded A Complete Hypothetical To the Vocational Expert ) from their 9 February 1, 2012 Joint Stipulation. hearing, if possible, which establishes (Minute Order at 1-2.) that all appropriate On April 2, 2012, the parties (Docket No. 26.) The Court 10 thereafter took the remaining issue presented under submission without 11 oral argument. 12 13 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 14 15 On January 24, 2008, plaintiff filed an application for a period of 16 disability, DIB, and SSI. (Administrative Record ( A.R. ) 18.) 17 Plaintiff, who was born on September 7, 1958 (A.R. 28),1 claims to have 18 been disabled since December 18, 2007 (A.R. 18, 149), due to colon 19 cancer and depression (A.R. 88, 92). 20 21 After the Commissioner denied plaintiff s claim initially and upon 22 reconsideration (A.R. 18, 88-96), plaintiff requested a hearing (A.R. 23 100). 24 appeared and testified at a hearing before Administrative Law Judge 25 Mason Harrell, Jr. (the ALJ ). (A.R. 18, 37-83.) Plaintiff s brother- On October 27, 2009, plaintiff, who was represented by counsel, 26 1 27 28 On the alleged disability onset date, plaintiff was 49 years old, which is defined as a younger individual. (A.R. 17; citing 20 C.F.R. §§ 404.1563, 416.963.) Plaintiff is now in the closely approaching advanced age category. (Id.) 2 1 in-law, Frank Chavez, and a vocational expert, Sandra Fioretti, also 2 testified. 3 (A.R. 18-30), and the Appeals Council subsequently denied plaintiff s 4 request for review of the ALJ s decision (A.R. 4-6). 5 now at issue in this action. (Id.) On December 9, 2009, the ALJ denied plaintiff s claim That decision is 6 7 SUMMARY OF ADMINISTRATIVE DECISION 8 9 The ALJ found that plaintiff meets the insured status requirements 10 of the Social Security Act through December 31, 2011. 11 ALJ also found that plaintiff has no past relevant work experience2 (A.R. 12 28) and has not engaged in substantial gainful activity since December 13 18, 2007, the alleged onset date (A.R. 20). 14 plaintiff has the following severe impairments: 15 otherwise specified; antisocial traits; alcohol abuse and a history of 16 methamphetamine abuse, but not since December 2007; colon cancer; and 17 status post hernia operation. 18 plaintiff does not have an impairment or combination of impairments that 19 meets or medically equals one of the listed impairments in 20 C.F.R. 20 Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 21 404.1526, 416.920(d), 416.925, 416.926). (A.R. 20.) (A.R. 20.) The The ALJ determined that depression, not He also determined that (Id.) 22 23 After reviewing the record, the ALJ determined that plaintiff has 24 the residual functional capacity ( RFC ) to perform a limited range of 25 light work, as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), with 26 27 28 2 Although the ALJ found that plaintiff has no past relevant work experience, it does appear that plaintiff has prior work experience. (See, e.g., A.R. 165.) 3 1 the following limitations: 2 3 [plaintiff can] lift and/or carry 20 pounds occasionally and 4 10 pounds frequently; walk three to four blocks; stand and/or 5 walk for four hours out of an eight-hour workday; and perform 6 simple repetitive tasks in a nonpublic setting. 7 is precluded from intense interactions with coworkers and 8 supervisors; jobs that require hypervigilance; and jobs that 9 have safety operations. [Plaintiff] 10 11 (A.R. 21.) 12 13 Based on his RFC assessment and after having considered plaintiff s 14 age, education,3 work experience, and the testimony of the vocational 15 expert, the ALJ found that jobs exist in the national economy that 16 plaintiff could perform, including bench assembler and small products 17 assembler II. 18 that, because plaintiff could not perform the full range of light work, 19 the testimony of a vocational expert was necessary to determine the 20 extent to which plaintiff s limitations eroded the occupational base for 21 light work. 22 occupational base, the vocational expert testified that an individual 23 with plaintiff s limitations could perform the above-listed jobs. (Id.) 24 She further testified that her testimony was consistent with the 25 Dictionary of Occupational Titles ( DOT ). 26 concluded that plaintiff has not been under a disability, as defined in (A.R. 29-30.) (A.R. 29.) In so finding, the ALJ specifically noted Even with a 50 percent erosion of that (Id.) Accordingly, the ALJ 27 3 28 The ALJ found that plaintiff has a limited education and is able to communicate in English. (A.R. 28.) 4 1 the Social Security Act, from December 18, 2007, through the date of his 2 decision. (A.R. 30.) 3 STANDARD OF REVIEW 4 5 6 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 7 decision to determine whether it is free from legal error and supported 8 by substantial evidence in the record as a whole. 9 F.3d 625, 630 (9th Cir. 2007). Orn v. Astrue, 495 Substantial evidence is such relevant 10 evidence as a reasonable mind might accept as adequate to support a 11 conclusion. 12 a mere scintilla but not necessarily a preponderance. 13 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). While inferences from the 14 record can constitute substantial evidence, only those reasonably drawn 15 from the record will suffice. 16 1066 (9th Cir. 2006)(citation omitted). Id. (citation omitted). The evidence must be more than Connett v. Widmark v. Barnhart, 454 F.3d 1063, 17 18 Although this Court cannot substitute its discretion for that of 19 the Commissioner, the Court nonetheless must review the record as a 20 whole, weighing both the evidence that supports and the evidence that 21 detracts from the [Commissioner s] conclusion. 22 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 23 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 24 responsible for determining credibility, resolving conflicts in medical 25 testimony, and for resolving ambiguities. 26 1035, 1039 (9th Cir. 1995). Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 27 28 The Court will uphold the Commissioner s decision when the evidence 5 1 is susceptible to more than one rational interpretation. Burch v. 2 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 3 review only the reasons stated by the ALJ in his decision and may not 4 affirm the ALJ on a ground upon which he did not rely. 5 at 630; see also Connett, 340 F.3d at 874. 6 the Commissioner s decision if it is based on harmless error, which 7 exists only when it is clear from the record that an ALJ s error was 8 inconsequential to the ultimate nondisability determination. Robbins 9 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 10 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 11 at 679. However, the Court may Orn, 495 F.3d The Court will not reverse 12 13 DISCUSSION 14 15 Plaintiff claims that the ALJ erred at step five of the sequential 16 evaluation in determining that plaintiff could perform other work in the 17 national economy. 18 Specifically, plaintiff claims that, pursuant to the descriptions of 19 light work provided by the DOT and the Commissioner, the jobs identified 20 by the vocational expert require six hours of standing and walking. 21 (Joint Stip. at 12.) 22 legal 23 individual who is precluded from standing . . . more than four hours can 24 perform 25 standing/walking. error, the (Joint Stipulation ( Joint Stip. ) at 4, 11.) because As such, plaintiff claims that the ALJ committed he alternative offered no work explanation which requires [as six to] how hours an of (Id. ) 26 27 At step five, the burden shifts from the claimant to the ALJ to 28 prove that, based on the claimant s RFC, age, education, and past work 6 1 experience, 2 significant numbers in the national economy. 3 1273, 1291 (9th Cir. 1996); 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1560(c), 4 416.920(a)(4)(v), 416.960(c). 5 by either taking the testimony of a vocational expert or by referring to 6 the Grids. 7 1999)(describing how the vocational expert s testimony and the Grids are 8 used at step five). 9 upon the testimony of a vocational expert, the hypothetical posed to the 10 vocational expert must be accurate, detailed, and supported by the 11 medical record. 12 vocational expert does not reflect all the claimant s limitations and/or 13 is not supported by evidence in the record, the [vocational] expert s 14 testimony has no evidentiary value to support a finding that the 15 claimant can perform jobs in the national economy. 16 Shalala, 17 quotations omitted). 10 the claimant is able to perform work that exists in Smolen v. Chater, 80 F.3d The ALJ can meet his burden at step five See Tackett v. Apfel, 180 F.3d 1094, 1100-01 (9th Cir. F.3d If the ALJ chooses, as he did in this case, to rely Id. at 1101. 678, 681 If the hypothetical presented to the (9th Cir. 1993)(citation Matthews v. and internal 18 19 The ALJ has an affirmative responsibility to ask whether a conflict 20 exists between the testimony of a vocational expert and the DOT. SSR 21 00-4p, 2000 SSR LEXIS 8, at *9; Massachi v. Astrue, 486 F.3d 1149, 1152- 22 53 (9th Cir. 2007). 23 testimony from the vocational expert, an ALJ may accept testimony from 24 a vocational expert that contradicts the DOT, but the record must 25 contain persuasive evidence to support the deviation. 26 Massanari, 249 F.3d 840, 846 (9th Cir. 2001)(quoting Johnson v. Shalala, 27 60 F.3d 1428, 1435 (9th Cir. 1995)). 28 by determining whether the vocational expert s explanation is reasonable If there is a conflict between the DOT and 7 Pinto v. The ALJ must resolve any conflict 1 and provides sufficient support to justify deviating from the DOT. 2 00-4p, 2000 SSR LEXIS 8, at *9; Massachi, 486 F.3d at 1153. 3 failure to do so, however, can be harmless error when there is no 4 conflict or the vocational expert provides a basis for relying on the 5 his or her testimony rather than on the DOT. SSR An ALJ s Id. at 1154 n.19. 6 7 At the October 27, 2009 administrative hearing, the ALJ asked the 8 vocational expert whether a hypothetical individual who was limited, as 9 is plaintiff, to, inter alia, walking three to four blocks at a time, 10 standing/walking for four hours out of an eight-hour workday, lifting up 11 to 20 pounds occasionally and 10 pounds frequently, no work with the 12 public, no intense interactions with co-workers and supervisors, and no 13 responsibility for safety operations, could perform plaintiff s prior 14 work. 15 individual could not perform plaintiff s prior work. 16 vocational expert testified, however, that such an individual, with the 17 additional limitation to simple repetitive tasks, could perform the jobs 18 of bench assembler and small products assembler II, after a 50 percent 19 erosion. 20 with the DOT, the vocational expert answered, Yes. (A.R. 81.) (Id.) The vocational expert testified that such an (A.R. 82.) The When asked by the ALJ if her testimony was consistent (Id.) 21 22 The ALJ relied on the vocational expert s testimony in finding that 23 there are jobs that exist in significant numbers in the national 24 economy that [plaintiff] can perform. 25 ALJ noted that [plaintiff] s ability to perform all or substantially 26 all of the requirements of [the full range of light work] has been 27 impeded by additional limitations. (Id.) Accordingly, [t]o determine 28 the extent to which these (A.R. 29.) limitations 8 erode In so finding, the the unskilled light 1 occupational base, the [ALJ] asked the vocational expert whether jobs 2 exist in the national economy for an individual with [plaintiff] s age, 3 education, work experience, and [RFC]. 4 after considering the above factors, the vocational expert testified 5 that such an individual would be able to perform other work, such as 6 bench assembler and small products assembler II. (Id.) The ALJ noted that, (Id.) 7 The ALJ did not err in relying on the vocational expert s testimony 8 9 that plaintiff could perform other work in the national economy. As an 10 initial matter, the ALJ complied with his affirmative duty to confirm 11 that 12 information provided in the DOT. 13 ( When a [vocational expert] provides evidence about the requirements of 14 a job or occupation, the [ALJ] has an affirmative responsibility to ask 15 about any possible conflict between that [vocational expert s] evidence 16 and information provided in the DOT. 17 will: 18 provided conflicts with information provided in the DOT ). 19 the vocational expert testified that a hypothetical individual with 20 plaintiff s limitations could perform jobs such as bench assembler and 21 small parts assembler II, the ALJ asked the vocational expert whether 22 her testimony was consistent with the DOT. 23 replied, Yes. the vocational expert s testimony was consistent with the SSR 00-4p, 2000 SSR LEXIS 8, at *8-9 In these situations, the [ALJ] Ask the [vocational expert] if the evidence he or she has Here, after The vocational expert 24 25 Further, contrary to plaintiff s claim, there does not appear to be 26 a clear and apparent conflict between the DOT and the vocational 27 expert s testimony with respect to the standing/walking requirements. 28 Plaintiff claims that the light jobs identified by the vocational 9 1 expert require six hours of standing and walking. 2 it is true that the full range of light work requires standing and 3 walking, off and on, for a total of approximately [six] hours of an 4 [eight]-hour workday, SSR 83-10, 1983 SSR LEXIS 30 (emphasis added), 5 not all light work jobs require standing or walking for that amount of 6 time, see 20 C.F.R. §§ 404.1567(b), 416.967(b) (noting that job may be 7 classified as light when it involves sitting most of the time with some 8 pushing and pulling of arm or leg controls ). 9 DOT description for the alternative jobs identified by the vocational 10 expert -- to wit, bench assembler and small products assembler II -- a 11 job can be classified as light when it requires sitting most of the 12 time but entails pushing and/or pulling of arm or leg controls and/or 13 the job requires working at a production rate pace entailing the 14 constant pushing and/or pulling of materials even though the weight of 15 those materials is negligible. 16 DOT 739.687-030 (assembler, small products II). 17 there does not appear to be a clear inconsistency between the DOT and 18 the vocational expert s testimony, the ALJ was under no duty to make 19 additional inquiries. 20 482, 21 discrepancy . . . only where there is an apparent unresolved conflict 22 that 23 DOT )(emphasis in original). 486 (9th arises Cir. between (A.R. 12.) While Indeed, as noted in the See DOT 706.684-042 (bench assembler); Accordingly, because See Michelson-Wurm v. Comm r SSA, 285 Fed. Appx. 2008)(stating the that vocational the ALJ expert s must clarify testimony and the the 24 25 Moreover, even assuming arguendo, that there was a clear and 26 apparent conflict between the vocational expert s testimony and the 27 DOT, as plaintiff contends, an ALJ may rely on expert testimony which 28 contradicts the DOT [so long as] the record contains persuasive evidence 10 1 to support the deviation. 2 (9th Cir. 2008)(citations omitted); see Massachi, 486 F.3d at 1154 n.19 3 (noting that there is no reversible error if there was no conflict or 4 the vocational expert provided sufficient support for her conclusion so 5 as to justify any potential conflicts ); Johnson, 60 F.3d at 1435-36 6 (noting that DOT classifications are rebuttable and are not the sole 7 source of admissible information concerning jobs). 8 to permit such a deviation may be provided either through specific 9 findings of fact Tommasetti v. Astrue, 533 F.3d 1035, 1042 regarding plaintiff s RFC or Evidence sufficient through inferences 10 reasonably drawn from the context of the expert s testimony. 11 Light v. SSA, 119 F.3d 789, 793 (9th Cir. 1997). 12 13 The vocational expert s testimony provides sufficient support for 14 any alleged deviation from the DOT. 15 expert 16 limitations, including, inter alia, standing/walking for not more than 17 four hours out of an eight-hour day, could perform other jobs in the 18 national economy. Specifically, after reducing the occupational base by 19 50 percent based on plaintiff s limitations,4 the vocational expert 20 testified, based on her expertise, that such an individual could perform 21 the jobs of bench assembler and small products assembler II. 22 Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005)(noting that a 23 vocational 24 foundation for his or her testimony[,] . . . no additional foundation is testified that expert s a As noted above, the vocational hypothetical recognized individual expertise with provides plaintiff s the See necessary 25 4 26 27 28 Although the vocational expert did not specifically state that the 50 percent erosion in the occupational base was due to plaintiff s various limitations, such a conclusion is reasonably inferred. See Light, 119 F.3d at 793; see also Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)(noting that an ALJ is entitled to draw inferences logically flowing from the evidence). 11 1 required ) 2 account plaintiff s various limitations by eroding the occupation base 3 of each proffered job by 50 percent, the vocational expert provided a 4 sufficient rationale to support any purported deviation/inconsistency 5 with the DOT. 6 DOT listing indicates the maximum requirements of occupations as they 7 are generally performed, and a vocational expert can provide more 8 specific information about jobs or occupations than the DOT). 9 any error committed by the ALJ in failing to address any apparent 10 In other words, because the vocational expert took into See SSR 00-04p, 2000 SSR LEXIS 8, at *6 (noting that a As such, conflict was harmless. 11 12 Accordingly, the ALJ did not commit reversible error in relying on 13 the vocational expert s testimony concerning plaintiff s ability to 14 perform other work. 15 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 12 1 CONCLUSION 2 3 For the foregoing reasons, the Court finds that the Commissioner s 4 decision is supported by substantial evidence and is free from material 5 legal error. Neither reversal of the Commissioner s decision nor remand 6 is warranted. 7 8 Accordingly, IT IS ORDERED that Judgment shall be entered affirming 9 the decision of the Commissioner of the Social Security Administration. 10 IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of 11 this Memorandum Opinion and Order and the Judgment on counsel for 12 plaintiff and for defendant. 13 14 LET JUDGMENT BE ENTERED ACCORDINGLY. 15 16 DATED: April 6, 2012 17 18 19 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 13
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