Charles Woodbury Jr v. Michael J Astrue, No. 5:2011cv00314 - Document 19 (C.D. Cal. 2011)

Court Description: MEMORANDUM DECISION AND ORDER by Jean P Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. IT IS FURTHER ORDERED that the Clerk serve copies of thisOrder and the Judgment on counsel for both parties. (twdb)

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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 CHARLES WOODBURY JR., ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the Social ) Security Administration, ) ) Defendant. ) _______________________________) Case No. EDCV 11-00314 JPR MEMORANDUM DECISION AND ORDER 17 18 INTRODUCTION 19 Plaintiff Charles Woodbury Jr. brings this action seeking to 20 overturn the decision of the Commissioner of the Social Security 21 Administration denying him Supplemental Security Income ( SSI ). 22 parties consented to the jurisdiction of the undersigned U.S. 23 Magistrate Judge pursuant to 28 U.S.C. § 636(c). 24 before the Court on the parties Joint Stipulation, filed October 27, 25 2011. 26 is AFFIRMED. 27 28 The This matter is For the reasons stated below, the decision of the Commissioner 1 PROCEDURAL HISTORY Plaintiff filed an application for SSI on November 19, 2008.1 2 3 (Administrative Record ( AR ) 130-36.) 4 1991, as the onset date of his disability. 5 Commissioner denied benefits on February 17, 2009. 6 Plaintiff submitted a request for reconsideration on March 11, 2009. 7 (AR 57.) 8 request for reconsideration. 9 requested a hearing before an administrative law judge ( ALJ ). 10 Plaintiff listed June 1, (AR 130.) The (AR 52-56.) On April 17, 2009, the Commissioner denied Plaintiff s (AR 58-63.) On May 5, 2009, Plaintiff (AR 66.) 11 On May 11, 2010, Plaintiff s hearing proceeded before ALJ Jay 12 Levine.2 13 9-21.) On July 13, 2010, Plaintiff requested Appeals Council review. 14 (AR 4.) The Appeals Council denied Plaintiff s request for review on 15 January 29, 2011. 16 the instant Complaint. (AR 22-47.) The ALJ denied benefits on June 24, 2010. (AR 1-3.) (AR On February 24, 2011, Plaintiff lodged Plaintiff does not challenge any aspect of the ALJ s decision 17 18 other than his determination, at step five of the process, that 19 Plaintiff could perform certain jobs. 20 the vocational expert s ( VE s ) testimony conflicted with the 21 description of the jobs in the Dictionary of Occupational Titles 22 ( DOT ) and the ALJ did not clarify the inconsistencies, and 23 therefore the Commissioner s decision must be reversed and the matter 24 remanded for a new hearing. Plaintiff s only claim is that (J. Stip. at 3-4.) 25 26 27 28 1 Plaintiff had previously sought benefits, on October 16, 2007, and was denied. (AR 9.) 2 Plaintiff was represented by counsel at the hearing. 2 (AR 24.) 1 2 FACTUAL HISTORY A. Generally Claimant was born on January 23, 1957. 3 He has a 12th- 4 grade education. 5 1, 1991, based on a seizure disorder, and not to have worked since 6 then.3 7 He claims to have been disabled since June (AR 14.) The Medical Evidence4 B. 8 9 (Id.) (AR 17.) As the ALJ found, many if not most of Plaintiff s recent medical tests performed by his treating physicians produced normal results 10 despite Plaintiff s seizure disorder. (AR 14-16.) On July 7, 2007, 11 a CT scan of Plaintiff s head was negative for abnormalities. 12 282-83.) 13 within normal limits. 14 visited the Loma Linda VA Medical Center emergency room, where the 15 results of a physical and mental examination were normal. 16 72.) 17 neurologist. 18 and oriented, had normal language and speech, had 5/5 motor strength, 19 had normal gait, and possessed intact sensory perceptions. (AR On October 12, 2007, the results of an EEG5 test were (AR 279.) On December 18, 2007, Plaintiff (AR 268- On March 5, 2008, Plaintiff was examined by Dr. Tom Bohr, a (AR 264-67.) The doctor found that Plaintiff was alert (Id.) He 20 21 22 23 24 25 3 The Court notes, however, that Plaintiff apparently told a doctor in January 2009, after he filed his claim for Social Security benefits, that he worked for a year in 1998 repairing lawn equipment. (AR 29091.) 4 Plaintiff does not generally contest the ALJ s determinations concerning the medical evidence. (J. Stip. at 3.) 5 26 27 28 Electroencephalogram tests measure and record the electrical activity of the brain and may detect seizures by showing changes in the normal pattern of the brain s electrical activity. Kathleen Deska Pagana & Timothy J. Pagana, Mosby s Manual of Diagnostic & Laboratory Tests 573 (4th ed. 2010). 3 1 found no objective evidence of epilepsy, and two EEGs were normal. 2 (Id.) 3 April 21, 2008, but the doctors there found that he was 4 neurologically within normal limits, with no head trauma, dizziness, 5 or slurred speech. 6 again normal, and his seizures were found to have decreased in 7 frequency as a result of various medications. 8 7, 2008, an ophthalmologist found that plaintiff s eyesight was 20/20 9 and his refractive error could be corrected through the use of over- Plaintiff was treated at the Loma Linda emergency room on (AR 259-61.) On October 22, 2008, two EEGs were On November 10 the-counter reading glasses. 11 exam found the frequency of Plaintiff s seizures to be reduced. 12 317.) 13 (AR 216-17.) (AR 220.) On January 20, 2010, an (AR Plaintiff s mental state was also generally assessed to be 14 normal. 15 normal during the visit to the Loma Linda emergency room. 16 At the April 21, 2008, exam, his mental status examination was 17 overall within normal limits (AR 261); the same was true for an 18 August 30, 2008, visit (AR 236). 19 examined by a psychologist, who diagnosed personality disorder not 20 otherwise specified with antisocial features and borderline 21 intellectual functioning. 22 severely mentally impaired, indicating only some mild symptoms or 23 some difficulty in social, occupational, or school functioning, but 24 generally functioning pretty well. 25 noted, some of the psychologist s tests indicated memory 26 malingering reflecting attempt[ ] to simulate cognitive 27 impairment. 28 // On December 18, 2007, his mental state was assessed as (AR 271.) On January 28, 2009, Plaintiff was (AR 293.) (AR 16, 293.) 4 She found that he was not (AR 16, 290-94.) As the ALJ 1 // 2 C. Hearing Testimony Plaintiff and his mother testified at the hearing. 3 Plaintiff s 4 mother testified that she and Plaintiff do the laundry together and 5 keep the house clean. [Plaintiff] [c]leans the bathrooms. (AR 44.) 6 The ALJ posed the following hypothetical to VE David Rinehart: 7 Assuming 8 education, no prior work experience in the last 15 years, 9 assume this person has is capable of a medium range of 10 work, no work on dangerous machinery, no work on unprotected 11 heights, no extreme heat, to climb stairs, but no ladders, 12 this person is restricted to entry-level work, and no fast- 13 paced work such as conveyer belt or piece work. 14 work in the regional or national economy such a person could 15 perform? 16 a hypothetical individual of claimant s age, Is there any (AR 44-45.) The VE responded that Plaintiff could perform the work of floor 17 18 waxer, day worker, and production helper. 19 that all were consistent with the DOT. (AR 45.) He testified (Id.) Plaintiff interrupted to say that [t]hey won t let me work any 20 21 kind around any kind of chemicals or sharp tools or objects or 22 working on a computer that all the medication I m on it s like a 23 waxer, something made out of soaps and that chemical, it s too strong 24 a chemical. (AR 46.) The ALJ then modified the hypothetical for the VE to exclude any 25 26 work that involved industrial level fumes, gasses, particles. 27 (Id.) 28 of production helper and floor waxer, but he would not be able to be The VE testified that Plaintiff could still perform the jobs 5 1 a day worker because they use[] chemicals, sprays, and what not. 2 (Id.) 3 the job of retail bagger, which was also consistent with the DOT. 4 (Id.) 5 D. 6 The VE added that the hypothetical person could also perform The ALJ s Decision In his written decision issued June 24, 2010, the ALJ found that 7 Plaintiff was not entitled to SSI. 8 severe impairment, seizure disorder vs. pseudo-seizure disorder (20 9 CFR 416.971 et seq.). 10 (AR 11.) He found that Plaintiff had a The ALJ described Plaintiff s Residual Functional Capacity ( RFC ) as follows: 11 [P]erform a significant range of medium work as defined in 20 12 CFR 416.967(c) except the claimant can lift and/or carry 50 13 pounds occasionally, and 25 pounds frequently; the claimant 14 can stand and/or walk 6 hours in a 8-hour workday; the 15 claimant can sit intermittently during the remaining time in 16 the workday; the claimant is 17 unprotected heights or dangerous machinery; the claimant is 18 precluded from climbing ladders but can climb stairs; the 19 claimant is precluded from working with industrial level 20 gases, fumes, particulates, extreme heat, or fast-pace work 21 such as conveyor belt or piece work; and the claimant can 22 perform entry level work such as simple repetitive tasks. 23 precluded from working at (AR 12-13.) 24 The ALJ wrote that 25 [t]he 26 factors 27 requirements of representative occupations such as floor 28 waxer, DOT 381.687-034, medium, unskilled, svp 2, with 5,900 vocational the expert individual testified that given would able to 6 be all perform these the 1 jobs in the regional economy and 154,000 in the national 2 exonomy; day worker, DOT 301.687-014, medium, unskilled, svp 3 2, with 6,700 jobs regionally and 109,000 jobs nationally; 4 and production helper, DOT 529.686-070, medium, unskilled, 5 svp 6 nationally. 7 testimony is consistent with the information contained in the 8 Dictionary of Occupational Titles. 2, with 15,000 jobs regionally and 390,000 jobs Pursuant to SSR 00-4p, the vocational expert s 9 Based on the testimony of the vocational expert, I 10 conclude that considering the claimant s age, education, work 11 experience, and residual functional capacity, the claimant is 12 capable of making a successful adjustment to other work that 13 exists in significant numbers in the national economy. 14 finding of not disabled is therefore appropriate . . . . 15 16 A (AR 17-18.) In making the not disabled determination, the ALJ found that 17 Plaintiff s statements concerning the intensity, persistence and 18 limiting effects of [his] symptoms are not credible to the extent 19 they are inconsistent with the above residual functional capacity 20 assessment. 21 medical tests had showed normal functioning. (AR 14.) 22 23 The ALJ noted that many of Plaintiff s (AR 14-15.) STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 24 Commissioner s decision to deny benefits. 25 the Commissioner s decision when the ALJ s findings are based on 26 legal error or are not supported by substantial evidence in the 27 record as a whole. 28 Cir. 2001); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). The Court may set aside Aukland v. Massanari, 257 F.3d 1033, 1035 (9th 7 1 Substantial evidence is more than a scintilla, but less than a 2 preponderance. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 3 1998). 4 accept as adequate to support a conclusion. 5 whether substantial evidence supports a finding, the court must 6 consider the record as a whole, weighing both evidence that 7 supports and evidence that detracts from the [Commissioner s] 8 conclusion. 9 2 F.3d 953, 956 (9th Cir. 1993)). It is relevant evidence which a reasonable person might Id. To determine Aukland, 257 F.3d at 1035 (quoting Penny v. Sullivan, If the evidence can reasonably 10 support either affirming or reversing that conclusion, a court may 11 not substitute its judgment for that of the Commissioner, and the 12 ALJ s decision must be upheld. Reddick, 157 F.3d at 720-21. DISCUSSION 13 14 The ALJ Did Not Err When He Found That Plaintiff Could Perform 15 The Jobs Of Floor Waxer and Production Helper6 16 Plaintiff contends that the ALJ erred in finding that Plaintiff 17 could perform work as a floor waxer or production helper because the 18 ALJ s findings concerning Plaintiff s RFC conflicted with the 19 description of these jobs in the DOT and with the VE s testimony, and 20 the ALJ did not clarify the inconsistencies with the VE. 21 at 4.) 22 job of floor waxer because it requires exposure to chemicals or the 23 job of production helper because it requires conveyer-belt work. 24 (Id.) (J. Stip. Specifically, Plaintiff asserts that he cannot perform the The ALJ found that Plaintiff could not work around 25 26 27 6 28 The Commissioner concedes that the ALJ erred in finding Plaintiff capable of work as a day worker. 8 1 industrial-level fumes, gasses, particulates and should not do 2 fast pace work such as conveyor belt or piece work. 3 (AR 13.) The ALJ may rely on expert testimony that contradicts the DOT if 4 the record contains persuasive evidence to support the deviation. 5 See Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995); 6 Tommasetti v. Astrue, 533 F.3d 1035, 1042 (9th Cir. 2008). 7 1. 8 The DOT defines floor waxer as follows: 9 Cleans, waxes, and polishes floors Floor Waxer by hand or machine: 10 Removes dirt and blemishes from floor, using various cleaning 11 solvents and compounds, according to composition of floor. 12 Applies paste or liquid wax to floor with rags or machine. 13 Polishes floor with electric polishing machine or weighted 14 brush. 15 16 DOT 381.687-034, 1991 WL 673262 (4th ed. 1991). On its face, this definition does not conflict with the ALJ s 17 finding that Plaintiff cannot work with industrial-level chemicals, 18 as cleaning solvents and compounds need not be industrial level. 19 Indeed, the DOT description notes that toxic caustic chemicals are 20 not involved in the job. 21 cannot work with any kind of chemicals, nothing else in the record 22 supports that assertion, and the ALJ specifically found that 23 Plaintiff was not credible to the extent his testimony conflicted 24 with the RFC. 25 Plaintiff works with soaps and chemicals in helping his mother do the 26 laundry and clean bathrooms. 27 28 Id. Although Plaintiff stated that he Moreover, it is a fair inference from the record that For these reasons, Plaintiff s claim that the ALJ erred when he concluded that Plaintiff could perform the job of floor waxer is 9 1 rejected. 2 Plaintiff s appeal. 3 jobs locally and 154,000 nationally. 4 numbers are sufficient to support the ALJ s decision that there were 5 a significant number of jobs in the economy that Plaintiff could 6 perform. 7 (holding 2300 jobs in San Diego county a significant number); Barker 8 v. Sec y of HHS, 882 F.2d 1474, 1479 (9th Cir. 1989) (holding 1266 9 jobs in local area a significant number). Further, the resolution of this issue is dispositive of According to the VE, there were 5900 floor waxer (AR 45.) Clearly, these See Moncada v. Chater, 60 F.3d 521, 524 (9th Cir. 1995) Thus, even assuming the 10 ALJ erred in his determination that Plaintiff could perform the work 11 of a production helper (see below), reversal would not be warranted. 12 See Gray v. Comm r, 365 Fed. App x 60, 63 (9th Cir. 2010) (affirming 13 ALJ s finding that Plaintiff could find work because, [e]ven 14 assuming, arguendo, that two of the three jobs named by the 15 [vocational expert] . . . were inconsistent with [plaintiff s 16 residual functional capacity], third job was not and was enough to 17 support ALJ s conclusion). 18 2. Production Helper 19 The DOT defines Production Helper in pertinent part as follows: 20 Feeds machine hoppers with ingredients, transports and packs 21 finished products, and performs any combination of following 22 tasks in food processing and packaging establishment: Dumps 23 prepared ingredients into hoppers of grinding and mixing 24 machines. 25 about plant and warehouse, using handtruck. Stacks processed 26 food in warehouse and coolers. Packs food products in paper 27 bags and boxes. 28 and jars. Transfers finished products and raw materials Loads packaging machines with bags, cans, Verifies weights of filled containers emerging 10 1 from packaging machines. 2 on 3 flavoring on foods. 4 conveyor belts. Removes foreign material from food Sprinkles grated cheese and other DOT 529.686-070, 1991 WL 674732 (4th ed. 1991). 5 Plaintiff contends that the DOT description conflicts with the 6 ALJ s RFC, which precluded fast-pace work such as conveyor belt or 7 piece work. 8 involve conveyor-belt work, and not all conveyor-belt work is fast 9 paced. Obviously, however, not all production-helper jobs The DOT description itself says that the job involves any 10 combination of the listed items. 11 390,000 production-helper jobs in the national economy. 12 insignificant number of production-helper jobs must exist in the 13 national economy that do not involve fast-paced conveyor-belt work. 14 See Moncada, 60 F.3d at 524 (noting that DOT lists broad, general 15 categories the subcategories of which may have fewer requirements). 16 To the extent the DOT description is inconsistent with the ALJ s RFC 17 findings, the error is therefore harmless.7 18 The ALJ found that there are Some not- CONCLUSION The ALJ correctly determined that Plaintiff could perform the 19 20 job of floor waxer. 21 Thus, Plaintiff s contentions do not warrant remand. 22 23 24 25 26 27 28 7 Any error was also harmless because the VE testified that Plaintiff could perform the job of retail bagger, and nothing in the DOT s description of that position is inconsistent with the ALJ s RFC determination. See DOT 920.687-014, 1991 WL 687964 (4th ed. 1991). 11 1 Consistent with the foregoing, and pursuant to sentence four of 2 42 U.S.C. § 405(g),8 IT IS ORDERED that judgment be entered AFFIRMING 3 the decision of the Commissioner and dismissing this action with 4 prejudice. 5 Order and the Judgment on counsel for both parties. IT IS FURTHER ORDERED that the Clerk serve copies of this 6 7 8 DATED: November 16, 2011 JEAN ROSENBLUTH U.S. MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 This sentence provides: The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. 12

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