Johnny Reese III v. Michael J Astrue, No. 5:2011cv00540 - Document 15 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Paul L. Abrams. IT IS HEREBY ORDERED that: 1. plaintiff's request for reversal, or in the alternative, remand, is DENIED; and 2. the decision of the Commissioner is AFFIRMED. IT IS FURTHER ORDERE D that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. **See Order for details.** (ch)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 JOHNNY REESE III, 13 Plaintiff, 14 15 ) ) ) ) ) ) ) ) ) ) ) ) v. 16 MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 17 Defendant. No. ED CV 11-540-PLA MEMORANDUM OPINION AND ORDER 18 19 I. 20 PROCEEDINGS 21 Plaintiff filed this action on April 12, 2011, seeking review of the Commissioner s denial of 22 his application for Supplemental Security Income payments. The parties filed Consents to 23 proceed before the undersigned Magistrate Judge on April 28, 2011, and April 29, 2011. Pursuant 24 to the Court s Order, the parties filed a Joint Stipulation on December 7, 2011, that addresses their 25 positions concerning the disputed issues in the case. The Court has taken the Joint Stipulation 26 under submission without oral argument. 27 / 28 / 1 2 3 4 II. BACKGROUND Plaintiff was born on April 28, 1980. [Administrative Record ( AR ) at 60-61.] He has a high school education [AR at 139], and past relevant work as a warehouse worker. [AR at 127.] 5 On March 28, 2007, plaintiff applied for Supplemental Security Income payments, claiming 6 an inability to work since February 16, 2007, due to injuries to his left leg and gunshot wounds to 7 his head, left hand, left shoulder, and right underarm. [AR at 60-61, 124, 135, 159.] After his 8 application was denied initially and upon reconsideration, plaintiff requested a hearing before an 9 Administrative Law Judge ( ALJ ). [AR 62-72, 75.] A hearing was held on November 19, 2008, 10 at which plaintiff appeared with counsel and testified on his own behalf. [AR at 29-59.] A 11 vocational expert ( VE ) and a third party witness also testified. [AR at 44-58.] The ALJ 12 determined that plaintiff was not disabled. [AR at 5-15.] On May 6, 2009, the Appeals Council 13 denied plaintiff s request for review. [AR at 1-4.] On June 18, 2009, plaintiff filed a complaint in 14 this Court in Case No. ED CV 09-1049-PLA. [See AR at 394.] On April 28, 2010, the Court 15 entered judgment for plaintiff and remanded the case back to the ALJ for further proceedings. [AR 16 at 394-403.] On remand, a different ALJ held another hearing on December 17, 2010, at which 17 time plaintiff appeared with counsel and again testified on his own behalf. A medical expert, a VE, 18 and a third party witness also testified. [AR at 336-79.] On January 27, 2011, the ALJ issued an 19 opinion again finding plaintiff not disabled. [AR at 327-35.] This action followed. 20 21 III. 22 STANDARD OF REVIEW 23 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner s 24 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial 25 evidence or if it is based upon the application of improper legal standards. Moncada v. Chater, 26 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 27 In this context, the term substantial evidence means more than a mere scintilla but less 28 than a preponderance -- it is such relevant evidence that a reasonable mind might accept as 2 1 adequate to support the conclusion. Moncada, 60 F.3d at 523; see also Drouin, 966 F.2d at 2 1257. When determining whether substantial evidence exists to support the Commissioner s 3 decision, the Court examines the administrative record as a whole, considering adverse as well 4 as supporting evidence. Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th 5 Cir. 1989). Where the evidence is susceptible to more than one rational interpretation, the Court 6 must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523; Andrews v. Shalala, 7 53 F.3d 1035, 1039-40 (9th Cir. 1995); Drouin, 966 F.2d at 1258. 8 9 IV. 10 THE EVALUATION OF DISABILITY 11 Persons are disabled for purposes of receiving Social Security benefits if they are unable 12 to engage in any substantial gainful activity owing to a physical or mental impairment that is 13 expected to result in death or which has lasted or is expected to last for a continuous period of at 14 least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin, 966 F.2d at 1257. 15 16 A. THE FIVE-STEP EVALUATION PROCESS 17 The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing 18 whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821, 19 828 n.5 (9th Cir. 1995, as amended April 9, 1996). In the first step, the Commissioner must 20 determine whether the claimant is currently engaged in substantial gainful activity; if so, the 21 claimant is not disabled and the claim is denied. Id. If the claimant is not currently engaged in 22 substantial gainful activity, the second step requires the Commissioner to determine whether the 23 claimant has a severe impairment or combination of impairments significantly limiting his ability 24 to do basic work activities; if not, a finding of nondisability is made and the claim is denied. Id. 25 If the claimant has a severe impairment or combination of impairments, the third step requires 26 the Commissioner to determine whether the impairment or combination of impairments meets or 27 equals an impairment in the Listing of Impairments ( Listing ) set forth at 20 C.F.R., Part 404, 28 Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. 3 1 If the claimant s impairment or combination of impairments does not meet or equal an impairment 2 in the Listing, the fourth step requires the Commissioner to determine whether the claimant has 3 sufficient residual functional capacity to perform his past work; if so, the claimant is not disabled 4 and the claim is denied. Id. The claimant has the burden of proving that he is unable to perform 5 past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a prima facie 6 case of disability is established. The Commissioner then bears the burden of establishing that 7 the claimant is not disabled, because he can perform other substantial gainful work available in 8 the national economy. The determination of this issue comprises the fifth and final step in the 9 sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 10 F.2d at 1257. 11 12 B. THE ALJ S APPLICATION OF THE FIVE-STEP PROCESS 13 In this case, at step one, the ALJ found that plaintiff had not engaged in any substantial 14 gainful activity since March 28, 2007, the date of the application. [AR at 329.] At step two, the 15 ALJ concluded that plaintiff has the severe impairments of status post multiple gunshot wounds 16 to his upper and lower extremities and head; cognitive disorder secondary to gunshot wound; 17 mood disorder, not otherwise specified; rule out post traumatic stress disorder; cannabis abuse; 18 and seizure disorder. [Id.] At step three, the ALJ determined that plaintiff s impairments do not 19 meet or equal any of the impairments in the Listing. [Id.] The ALJ further found that plaintiff 20 retained the residual functional capacity ( RFC )1 to perform light work as defined in 20 C.F.R. 21 § 416.967(b), 2 except that plaintiff is limited to carrying/lifting 10 pounds frequently, 20 pounds 22 occasionally; standing/walking 2 hours in an 8 hour workday; sitting 6 hours in an 8 hour workday, 23 with normal breaks; occasionally pushing/pulling and use of arm levers and controls with his left 24 1 25 26 27 28 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. See Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 2 20 C.F.R. § 416.967(b) defines light work as work involving lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds and requiring a good deal of walking or standing or sitting most of the time with some pushing and pulling of arm or leg controls. 4 1 upper extremity; no foot controls with his left lower extremity; he can climb stairs and ramps but 2 only less than occasionally; he cannot climb ladders, ropes, or scaffolds; no walking on uneven 3 terrain; a hand held device is not required for ambulation but he should be allowed to use a drop 4 foot brace and a cane for long distances; no work at unprotected heights, around flashing, strong 5 or bright lighting or around strong odors; simple repetitive tasks with no interaction with the public; 6 no tasks requiring hypervigilance; and no fast pace[d] work. [AR at 330-31.] At step four, the ALJ 7 concluded that plaintiff was not capable of performing his past relevant work. [AR at 334.] At step 8 five, the ALJ found, based on the vocational expert s testimony and the application of the Medical- 9 Vocational Guidelines, that there are jobs that exist in significant numbers in the national 10 economy that [plaintiff] can perform. [AR at 334-35.] Accordingly, the ALJ determined that 11 plaintiff is not disabled. [AR at 335.] 12 13 V. 14 THE ALJ S DECISION 15 Plaintiff contends that the ALJ: (1) failed to properly consider whether plaintiff meets and/or 16 equals Listing Section 1.03; (2) improperly concluded that plaintiff can perform certain jobs found 17 in the Dictionary of Occupational Titles and failed to elicit an explanation from the VE as to 18 whether there is any conflict between the ALJ s RFC determination for plaintiff and the jobs that 19 the VE testified plaintiff can perform; (3) failed to properly determine plaintiff s RFC; and (4) posed 20 an incomplete hypothetical question to the VE. [Joint Stipulation ( JS ) at 3.] As set forth below, 21 the Court respectfully disagrees with plaintiff and affirms the ALJ s decision. 22 23 A. ALJ S FAILURE TO PROPERLY CONSIDER WHETHER PLAINTIFF MEETS AND/OR EQUALS LISTING SECTION 1.03 24 25 26 Plaintiff contends that he meets and/or equals the requirements to qualify for a finding of disabled under Listing Section 1.03. [JS at 3-9.] 27 To meet or equal the Listing, plaintiff has the burden of establishing that he meets or equals 28 each characteristic of the listed impairment. Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). 5 1 To meet a listed impairment, a claimant must establish that he or she meets each characteristic 2 of a listed impairment relevant to his or her claim. To equal a listed impairment,3 a claimant must 3 establish symptoms, signs and laboratory findings at least equal in severity and duration to the 4 characteristics of a relevant listed impairment ... Id. (quoting 20 C.F.R. § 404.1526) (emphases 5 in original); see also 20 C.F.R. § 416.926(a) (An impairment(s) is medically equivalent to a listed 6 impairment in appendix 1 of subpart P of part 404 of this chapter if it is at least equal in severity 7 and duration to the criteria of any listed impairment. ). 8 Listing Section 1.03 requires a finding of disability for an individual who has had 9 [r]econstructive surgery or surgical arthrodesis4 of a major weight-bearing joint, with inability to 10 ambulate effectively, as defined in 1.00B2b, and return to effective ambulation did not occur, or 11 is not expected to occur, within 12 months of onset. 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 1.03. 12 Section 1.00B2b provides the following description concerning What [the Administration] Mean[s] 13 by Inability to Ambulate Effectively : 14 (1) Definition. Inability to ambulate effectively means an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously with the individual s ability to independently initiate, sustain, or complete activities. Ineffective ambulation is defined generally as having insufficient lower extremity functioning ... to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities. ... 15 16 17 18 (2) To ambulate effectively, individuals must be capable of sustaining a reasonable walking pace over a sufficient distance to be able to carry out activities of daily living. They must have the ability to travel without companion assistance to and from a place of employment or school. Therefore, examples of ineffective ambulation include, but are not limited to, the inability to walk without the use of a walker, two crutches or two canes, the inability to walk a block at a reasonable pace on rough or uneven surfaces, the inability to use standard public transportation, the inability to carry out routine ambulatory activities, such as shopping and banking, and the inability to climb a few steps at a reasonable pace with the use of a single hand rail. The ability to 19 20 21 22 23 24 25 26 27 28 3 The Social Security Administration refers to this as medical equivalence. See 20 C.F.R. §§ 404.1526, 416.926. 4 Arthrodesis is defined as: the surgical fixation of a joint by a procedure designed to accomplish fusion of the joint surfaces by promoting the proliferation of bone cells. Dorland s Illustrated Medical Dictionary, at 152 (29th ed. 2000). 6 walk independently about one s home without the use of assistive devices does not, in and of itself, constitute effective ambulation. 1 2 3 Id. at § 1.00B2b. At step three of the five-step process, the ALJ determined that plaintiff s 4 impairments do not meet or equal any of the impairments in the Listing. [AR at 329.] Specifically, 5 the ALJ stated that [n]o treating or examining physician has recorded findings equivalent in 6 severity to the criteria of any listed impairment, including Listing [Sections] 1.00, 11.00, [and] 7 12.00, nor does the evidence show medical findings that are the same or equivalent to those of 8 any listed impairment of the Listing. [AR at 329-30.] 9 Plaintiff first argues that he meets or equals Listing Section 1.03 s requirement of 10 reconstructive surgery or surgical arthrodesis of a major weight-bearing joint because he 11 underwent surgery on February 16, 2007 for multiple gunshot wounds to both thighs and the left 12 and right leg, and underwent another surgery on February 21, 2007 to his left thigh. [JS at 4-5.] 13 However, 20 C.F.R., Part 404, Subpart P, Appendix 1, Section 1.00F provides, in relevant part: 14 [m]ajor joints refers to the major peripheral joints, which are the hip, knee, shoulder, elbow, 15 wrist-hand, and ankle-foot. Thus, under Section 1.00F of the Listing, the left leg is not a major 16 joint. Moreover, plaintiff has not presented evidence that he has had surgical arthrodesis or 17 reconstructive surgery of any of the joints identified in Section 1.00F. Therefore, plaintiff fails to 18 establish that he meets the characteristic of reconstructive surgery or surgical arthrodesis of a 19 major weight-bearing joint. Similarly, plaintiff fails to establish that his impairments equal this 20 characteristic, as he points to no symptoms, signs, or laboratory findings showing that his leg 21 surgery is at least equal in severity to reconstructive surgery or surgical arthrodesis of a major 22 weight-bearing joint. See Tackett, 180 F.3d at 1099 (citing 20 C.F.R. § 404.1526); see also 20 23 C.F.R. § 416.926(a).5 24 5 25 26 27 28 Plaintiff s relies on Marcia v. Sullivan, 900 F.2d 172 (9th Cir. 1990), to argue that the ALJ s finding in this case was insufficient to show that he considered plaintiff s possible equivalence to Listing Section 1.03. This reliance is misplaced. In Marcia, the Ninth Circuit held that where the ALJ failed to address medical evidence presented by the claimant in an effort to establish equivalence, the ALJ s finding as to equivalence was insufficient. See Marcia, 900 F.2d at 176. Here, plaintiff states that he underwent surgery ... for multiple gunshot wounds to both thighs and (continued...) 7 1 In addition, plaintiff argues that he meets or equals Section 1.03 s requirement of an 2 inability to ambulate effectively because the ALJ determined that plaintiff s RFC to perform light 3 work includes the following limitations: no foot controls with his left lower extremity; ... no walking 4 on uneven terrain; a hand held device is not required for ambulation but he should be allowed to 5 use a drop foot brace and a cane for long distances. [JS at 5-7; AR at 330.] The ALJ s finding 6 that plaintiff should be able to use a drop foot brace and a cane for long distances does not 7 establish under 20 C.F.R., Pt. 404, Subpt. P, App. 1, Section 1.00B2b that he has insufficient 8 lower extremity functioning ... to permit independent ambulation without the use of a hand-held 9 assistive device(s) that limits the functioning of both upper extremities (emphasis added). In 10 addition, while the ALJ s finding that plaintiff cannot walk on uneven terrain may indicate that 11 plaintiff is unable to walk a block at a reasonable pace on rough or uneven surfaces, which could 12 impact his ability to ambulate effectively (see 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 1.00B2b), the 13 Court finds that the inability to ambulate effectively alone is not sufficient to establish that plaintiff 14 equals Section 1.03, i.e., plaintiff has not shown that he equals each characteristic of Section 1.03. 15 Plaintiff does not meet or equal Listing Section 1.03, and remand is not warranted on this issue. 16 See Tackett, 180 F.3d at 1099. 17 / 18 / 19 / 20 / 21 22 23 24 25 26 27 28 5 (...continued) the left and right leg, and underwent another surgery ... to his left thigh. [See JS at 4-5.] He has not presented any evidence of how his leg surgeries are medically equivalent to reconstructive surgery or surgical arthrodesis of a major weight-bearing joint. Thus, plaintiff has not established that the ALJ s finding that [n]o treating or examining physician has recorded findings equivalent in severity to the criteria of any listed impairment, including Listing 1.00 ... nor does the evidence show medical findings that are the same or equivalent to those of any listed impairment of the Listing[s] [AR at 329-30], was insufficient. See Roberson v. Astrue, 2011 WL 1211483, at *3 n.3 (C.D. Cal. Mar. 30, 2011) (where the claimant did not present evidence of medical equivalence, her reliance on Marcia to argue that the ALJ failed to properly consider her equivalence to the Listing was misplaced). 8 1 B. ALJ S FAILURE TO EXPLAIN HIS DEVIATION FROM THE DOT OR OBTAIN A REASONABLE EXPLANATION FROM THE VOCATIONAL EXPERT 2 3 Plaintiff argues that due to ... plaintiff s RFC limiting him to occasionally pushing/pulling and 4 use of arm levers and controls with his left upper extremity, he would be unable to perform [the 5 jobs of sewing machine operator, compact assembler, and film touch-up inspector] ... because 6 such jobs would require frequently and/or constantly reaching using both of his arms. [JS at 15.] 7 Plaintiff further contends that [n]either the ALJ nor the VE articulated reasons for deviating from 8 the DOT, and that the ALJ therefore erred in determining that plaintiff can perform these jobs. 9 [JS at 16.] 10 [T]he best source for how a job is generally performed is usually the Dictionary of 11 Occupational Titles. Pinto v. Massanari, 249 F.3d 840, 845-46 (9th Cir. 2001) (citing Johnson v. 12 Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995)). 13 classification requirements. See Johnson, 60 F.3d at 1435. An ALJ may rely on VE testimony that 14 varies from the DOT description of how a job is performed only insofar as the record contains 15 persuasive evidence to support the deviation. Light v. Soc. Sec. Admin., 119 F.3d 789, 793 (9th 16 Cir. 1997) (citing Johnson, 60 F.3d at 1435). Moreover, when a VE ... provides evidence about 17 the requirements of a job or occupation, the [ALJ] has an affirmative responsibility to ask about any 18 possible conflict between that VE ... evidence and the information provided in the DOT. Social 19 Security Ruling6 00-4p. SSR 00-4p further provides that [i]f the VE s ... evidence appears to 20 conflict with the DOT, the adjudicator will obtain a reasonable explanation for the apparent conflict. 21 Id. Nevertheless, the ALJ s failure to ask the VE about potential conflicts and obtain a reasonable 22 explanation for any conflicts is harmless error where there is no actual conflict or where the VE has 23 provided sufficient support for her conclusion so as to justify any potential conflicts. Massachi v. 24 Astrue, 486 F.3d 1149, 1154 n.19 (9th Cir. 2007). The DOT raises a presumption as to job 25 26 27 28 6 Social Security Rulings ( SSR ) do not have the force of law. Nevertheless, they constitute Social Security Administration interpretations of the statute it administers and of its own regulations, and are given deference unless they are plainly erroneous or inconsistent with the Act or regulations. Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989). 9 1 In his RFC determination for plaintiff, the ALJ found that plaintiff s ability to perform light 2 work is limited to, among other things, occasionally pushing/pulling and use of arm levers and 3 controls with his left upper extremity. [AR at 330.] At plaintiff s hearing before the ALJ, the ALJ 4 asked the vocational expert to assume a hypothetical person of plaintiff s age, education, past 5 relevant work experience, and with all of the limitations that the ALJ determined plaintiff has, 6 including the limitation that plaintiff can only occasionally push and pull and use arm levers and 7 controls with his left upper extremity. [AR at 375-76.] When asked whether plaintiff can perform 8 jobs in the national economy other than his past work, the VE testified, in relevant part, as follows: 9 10 11 12 13 14 15 16 17 Yes, there would be work. Examples at the range of light would be sewing machine operator, light, SVP 2, the DOT of 689.685118 -- there s one DOT in that group. There are more than 16,000 light, unskilled sewing machine operators in the region or 190,000 nationally. There -- moving to sedentary, because other positions at the range of light was standing and walking only two out of eight, would potentially have odors. So ... just going to sedentary. Small items assembly, which is not a DOT number but a group of positions -typically assembler items weighing less than one pound. The Dictionary of Occupational Titles as a sample would be a cosmetic assembly [sic], 739.687-066. There are over 2,000 sedentary, unskilled assembly positions in the region, 50,000 plus nationally. Or production inspector type positions -- again, inspecting items typically weighing less than one pound with a sample DOT of a circuit inspector, 726.684-050 -- more than 500 positions in the region with 10,000 nationally. That s a sample of three. 18 19 [AR at 376-77.] The ALJ did not ask the VE whether there was any conflict between her testimony 20 as to plaintiff s ability to perform these jobs and plaintiff s limitations as set forth in the ALJ s RFC 21 determination for plaintiff. [See AR at 377.] In his decision, the ALJ stated: 22 23 24 25 26 27 [T]he Administrative Law Judge asked the vocational expert whether jobs exist in the national economy for an individual with [plaintiff s] age, education, work experience, and residual functional capacity. The vocational expert testified that given all of these factors the individual would be able to perform the requirements of representative occupations such as sewing machine operator, light, svp 2, DOT 689.685-118, 16,000 positions regionally, nationally 190,000 positions; small item assembly -- DOT for cosmetic assembly is 739.687-066, sedentary, unskilled, svp 2, 2,000 positions regionally, nationally 50,000 positions; and production inspector -- circuit inspector DOT 726.684[]-050, sedentary, unskilled, svp 2, more than 500 positions regionally, and 10,000 positions nationally. 28 10 2 Pursuant to SSR 00-4p, the vocational expert s testimony is consistent with the information contained in the Dictionary of Occupational Titles. 3 [AR at 335.] The ALJ therefore concluded that plaintiff can perform other jobs that exist in 4 significant numbers in the national economy and found plaintiff not disabled. [Id.] 1 5 The jobs of sewing machine operator and compact assembler7 require reaching 6 frequently, i.e., one-third to two-thirds of the time. DOT 689.685-118; DOT 739.687-066. The 7 job of film touch-up inspector8 requires reaching constantly, i.e., two-thirds or more of the time. 8 DOT 726.684-050. 9 Plaintiff first argues that due to ... plaintiff s RFC limiting him to occasional[] pushing/pulling 10 and use of arm levers and controls with his left upper extremity, he would be unable to perform 11 any of the jobs given by the ALJ ... because such jobs would require frequently and/or constantly 12 reaching using both of his arms. [JS at 15.] In so arguing, however, plaintiff conflates the 13 function of being able to reach with that of being able to push, pull, and use arm levers and 14 controls. [P]ushing[] and pulling are primary strength activities, and are therefore exertional. 15 SSR 83-10. By contrast, a limitation on an individual s ability to reach is a nonexertional 16 impairment, or an impairment which does not directly affect the ability to sit, stand, walk, lift, 17 carry, push, or pull. Id. Thus, there is no conflict between the ALJ s finding that plaintiff is limited 18 to only occasional pushing, pulling, and use of arm levers or controls with his left upper extremity, 19 which are exertional impairments, and the demand that plaintiff be able to frequently or constantly 20 reach, which is a nonexertional requirement.9 Moreover, the ALJ s RFC determination for plaintiff 21 22 23 7 24 25 26 27 28 DOT No. 739.687-066, referred to by the VE and the ALJ as cosmetic assembler, is listed in the DOT as compact assembler. 8 DOT No. 726.684-050, referred to by the VE and the ALJ as circuit inspector, is listed in the DOT as film touch-up inspector. 9 The Court therefore finds that the ALJ s determination of the frequency with which plaintiff can push, pull, or use arm levers and controls is irrelevant to the frequency with which plaintiff must be able to reach to perform the three jobs the ALJ found he can do. 11 1 does not contain any limitation as to plaintiff s ability to reach.10 [See AR at 330-31.] Therefore, 2 plaintiff s argument that he cannot perform the three jobs identified by the ALJ that call for constant 3 or frequent reaching, simply because plaintiff can only occasionally push, pull, or use arm levers 4 and controls with his left upper extremity, fails. 5 For this reason, plaintiff also cannot establish that the ALJ or the VE improperly failed to 6 articulate[] reasons for deviating from the DOT. [JS at 16.] In his hypothetical question to the 7 VE, the ALJ included the limitation that the hypothetical person can only occasionally push and 8 pull and use arm levers and controls with his left upper extremity. [AR at 375-76.] The VE 9 testified that such a person could perform the jobs of sewing machine operator, compact 10 assembler, and film touch-up inspector. As there is no conflict under SSR 83-10 between the 11 limitations the ALJ found for plaintiff s left upper extremity and an individual s ability to reach 12 constantly or frequently, the VE s testimony that plaintiff can perform the three jobs does not 13 deviate from the DOT s description of the jobs reaching requirements, but is consistent with 14 them. Thus, the ALJ was not required to provide a reasonable explanation for relying on that part 15 of the VE s testimony. See, e.g., SSR 00-4p ( If the VE s ... evidence appears to conflict with the 16 DOT, the adjudicator will obtain a reasonable explanation for the apparent conflict. ) (emphases 17 added). For the same reason, although the ALJ did not ask the VE whether any conflict existed 18 between the DOT and the VE s testimony that the three jobs can be performed by a hypothetical 19 person with all of the limitations the ALJ determined plaintiff has, that failure was harmless error 20 as to the issue of the jobs reaching requirements. See Massachi, 486 F.3d at 1154 n.19. 21 22 23 24 25 26 27 28 10 The Commissioner contends that there is no conflict between a DOT job description that requires the performance of manipulative functions, such as reaching, and VE testimony that such a job can be done by a hypothetical person who is only limited in his ability to perform such functions as to one arm. [See JS at 16-18.] There is a split of authority as to whether there is a conflict between a DOT job description requiring some level of reaching, and VE testimony that a hypothetical person who is limited in his ability to reach as to one arm can perform that job. Compare Marshall v. Astrue, 2010 WL 841252, at *6 (S.D. Cal. Mar. 10, 2010), Meyer v. Astrue, 2010 WL 3943519, at *8-9 (E.D. Cal. Oct. 1, 2010), and Walls v. Astrue, 2010 WL 5672742, at *5 (S.D. W.Va. Dec. 20, 2010), with Fuller v. Astrue, 2009 WL 4980273, at *2-3 (C.D. Cal. Dec. 15, 2009), and Diehl v. Barnhart, 357 F.Supp.2d 804, 822 (E.D. Pa. 2005). Nevertheless, the outcome in this action is not affected by this issue. 12 1 Moreover, plaintiff s objective medical record supports the ALJ s silence in his RFC 2 determination as to any limitation on plaintiff s ability to reach. The Commissioner defines 3 reaching as extending the hands and arms in any direction. SSR 85-15. Plaintiff has not 4 pointed to any medical notes or reports indicating that he is limited in his ability to extend his arms 5 and hands in any direction. Rather, the only two medical reports in the record evaluating plaintiff s 6 upper extremities did not find that he had any such limitations. On July 12, 2007, consultative 7 examiner Dr. Bunsri T. Sophon, an orthopaedic surgeon, performed a complete orthopedic 8 evaluation of plaintiff and concluded the following as to plaintiff s upper extremities: no deformity 9 in plaintiff s shoulders, arms, elbows, forearms, wrists, and hands; no evidence of muscle atrophy 10 or spasm in plaintiff s shoulders, arms, elbows, forearms, wrists; and that the range of motion in 11 plaintiff s shoulders, elbows, and wrists was within normal limits. [AR at 266, 268, 270.] On July 12 19, 2007, a nonexamining physician completed a physical residual functional capacity assessment 13 ( PRFCA ) for plaintiff, in which the physician opined that plaintiff does not have any manipulative 14 limitations, including in his ability to reach[] in all directions. [AR at 275.] The ALJ stated in his 15 decision that he assigned great weight to the opinions of both Dr. Sophon and the nonexamining 16 physician who completed the July 19, 2007, PRFCA. [See AR at 333-34.] Accordingly, based on 17 the absence of evidence establishing any limitation on plaintiff s ability to reach, and on the 18 opinions of Dr. Sophon and the nonexamining physician, there is substantial evidence to support 19 the ALJ s implicit conclusion that plaintiff can reach frequently or constantly, and can therefore 20 perform the jobs of sewing machine operator, compact assembler, and film touch-up inspector. 21 Based on the foregoing, the Court finds that there is no conflict under SSR 83-10 between 22 the limitations the ALJ found for plaintiff s left upper extremity and his ability to reach constantly 23 or frequently, and therefore plaintiff also has not established that the ALJ or the VE improperly 24 failed to articulate[] reasons for deviating from the DOT. Remand is not warranted on this issue. 25 See Moncada, 60 F.3d at 523 (ALJ s decision will be disturbed only if it is not supported by 26 substantial evidence or if it is based upon the application of improper legal standards). 27 / 28 / 13 1 C. ALJ S FAILURE TO PROPERLY DETERMINE PLAINTIFF S RESIDUAL FUNCTIONAL CAPACITY 2 3 Plaintiff argues that the ALJ erred by not including in his RFC determination for plaintiff 4 certain standard precautions for a person with a seizure disorder, such as avoid[ing] extreme 5 heat, no exposure to dangerous or moving machinery, no working around pools of water and no 6 responsibility for the safety of others. [JS at 19.] The Commissioner contends that the ALJ 7 reasonably determined plaintiff s RFC, but also that even if [p]laintiff had proved the functional 8 limitations he [contends that the ALJ improperly omitted from his RFC], those limitations would not 9 preclude the jobs identified by the ALJ at step five. [JS at 20-21.] 10 11 The Dictionary of Occupational Titles describes the job of sewing machine operator as follows: 12 18 Tends machine that automatically stitches designs to decorate mattress covers and to hold padding in place: Places spools of thread on spindles and draws ends through guides, tensions, and needle eyes. Inserts bobbin in shuttle and draws thread through slot in shuttle wall. Clamps covering material and padding in frame and places frame in rack under sewing head of machine. Bolts pilot pattern plate on platform beneath frame, using wrench. Places pilot or guide bar extending from frame in guide channels of pilot pattern and starts machine. May move pilot or guide bar by hand. May attach framed cover to pulleys that draw it away from machine as cover is stitched, and guide cover under presser foot by hand to stitch design. 19 DOT 689.685-118. The DOT describes the job of compact assembler as follows: Joins upper and 20 lower halves of vanity compacts: Inserts pins in hinges to join halves, using fingers or tweezers. 21 Attaches spring catch lock by pressing it into place with pinching tool. Fits mirror on inside of 22 cover. DOT 739.687-066. Finally, the DOT describes the job of film touch-up inspector as 23 follows: 13 14 15 16 17 24 25 26 27 Inspects and repairs circuitry image on photoresist film (separate film or film laminated to fiberglass boards) used in manufacture of printed circuit boards ... : Inspects film under magnifying glass for holes, breaks, and bridges (connections) in photoresist circuit image. Removes excess photoresist, using knife. Touches up holes and breaks in photoresist circuitry image, using photoresist ink pen. Removes and stacks finished boards for transfer to next work station. Maintains production reports. May place lint free 28 14 paper between dry film sheets to avoid scratching circuit images on film. 1 2 3 DOT 726.684-050. The DOT further provides that exposure to extreme heat and moving 4 mechanical parts in the job is not present in any of these three jobs. DOT 689.685-118; DOT 5 739.687-066; DOT 726.684-050. 6 Plaintiff contends that [t]he fact that plaintiff would have safety precautions due to his 7 seizure disorder would clearly impact his everyday functioning in all work-related activities and his 8 ability to perform other work such as the jobs [the ALJ found he is able to perform]. [JS at 19.]11 9 Nevertheless, plaintiff fails to establish how the limitations of having to avoid extreme heat, 10 exposure to dangerous or moving machinery, and working around pools of water, or that of not 11 having responsibility for the safety of others, would preclude him from being able to perform the 12 jobs of compact assembler and film touch-up inspector. Indeed, the DOT states that exposure to 13 extreme heat and to moving mechanical parts is not present in either of these jobs.12 DOT 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 Plaintiff argues that the ALJ should have incorporated all necessary seizure limitations in plaintiff s RFC determination, and that he instead omitted all seizure limitations. [JS at 20.] However, plaintiff states merely that [t]he standard precautions for a person with a seizure disorder could be to avoid extreme heat, no exposure to dangerous or moving machinery, no working around pools of water and no responsibility for the safety of others, and does not present any other limitations -- actual or hypothetical -- related to his seizure disorder. [JS at 19; emphasis added.] Moreover, the only seizure-related limitation in the record assigned by a physician is an emergency room physician s February 5, 2010, directive of no driving until cleared by neurology. [AR at 500.] Thus, the Court addresses herein only those limitations that plaintiff has raised. Moreover, as the Commissioner points out, the ALJ did include in plaintiff s RFC some prophylactic functional limitations that encompassed seizure precautions [JS at 20], including no work at unprotected heights, around flashing, strong or bright lighting[,] or around strong odors. [AR at 330-31.] 12 The Court notes that while the DOT description for the job of sewing machine operator also states that exposure to extreme heat and moving mechanical parts is not present, it nevertheless includes the following description: [t]ends machine that automatically stitches designs to decorate mattress covers ... DOT 689.685-118. However, even if a sewing machine operator is exposed to moving mechanical parts, and even assuming arguendo that plaintiff cannot be exposed to dangerous or moving machinery, the ALJ s conclusion that plaintiff can perform this job would still be harmless error given the Court s determination herein that the ALJ did not err in finding that plaintiff can perform the jobs of compact assembler and film touch-up inspector. See Stout v. Comm r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (an error is harmless if it is (continued...) 15 1 739.687-066; DOT 726.684-050. Moreover, the DOT descriptions for these two jobs do not 2 indicate that water, let alone exposure to pools of water, is involved in either job, nor do they 3 indicate that either job is supervisory or safety-related. Id. While the presumption raised by the 4 DOT as to job classification requirements is rebuttable (see Johnson, 60 F.3d at 1435), plaintiff 5 has not rebutted the presumption that an individual who has the limitations of not having 6 responsibility for the safety of others and of having to avoid extreme heat, exposure to dangerous 7 or moving machinery, and working around pools of water, would not be able to perform the jobs 8 of compact assembler and film touch-up inspector. Thus, the Court finds that even if the ALJ 9 erred by omitting these limitations from plaintiff s RFC determination, the error would be 10 inconsequential to the ultimate disability determination, and therefore harmless. See Stout, 454 11 F.3d at 1055; Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006). A decision of the 12 ALJ will not be reversed for errors that are harmless. Burch v. Barnhart, 400 F.3d 676, 679 (9th 13 Cir. 2005) (citing Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1991)). Accordingly, remand is 14 not warranted on this issue. 15 16 D. ALJ S FAILURE TO POSE A COMPLETE HYPOTHETICAL QUESTION TO THE VOCATIONAL EXPERT 17 18 Plaintiff argues that the ALJ s hypothetical question to the VE was incomplete because it 19 did not contain the following limitations, which are standard precautions for an individual with a 20 seizure disorder: avoid[ing] extreme heat, no exposure to dangerous or moving machinery, no 21 working around pools of water and no responsibility for the safety of others. [JS at 23.] As the 22 Court determined supra that the ALJ s failure to include these limitations in plaintiff s RFC was 23 harmless error, the omission of these limitations from the ALJ s hypothetical question to the VE 24 likewise was inconsequential to the ultimate disability determination. Thus, even if the ALJ erred 25 by not including these limitations in the hypothetical question posed to the VE, such error would 26 27 12 28 (...continued) inconsequential to the ultimate disability determination ). 16 1 be harmless. See Stout, 454 F.3d at 1055. Remand is not warranted on this issue. See Burch, 2 400 F.3d at 679. 3 4 VI. 5 CONCLUSION 6 7 8 9 10 11 IT IS HEREBY ORDERED that: 1. plaintiff s request for reversal, or in the alternative, remand, is denied; and 2. the decision of the Commissioner is affirmed. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. 12 13 DATED: January 17, 2012 PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17

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