Pedro Peralez v. Michael J. Astrue, No. 5:2012cv00358 - Document 18 (C.D. Cal. 2013)
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. IT IS SO ORDERED. 1 [SEE ORDER FOR FURTHER DETAILS] (gr)
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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 PEDRO PERALEZ, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 12-00358-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 ). 27 28 Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the Joint Stipulation Plaintiff raises the following issues: 1. Whether there is an inconsistency between the Dictionary of 1 Occupational Titles ( DOT ) and the Administrative Law 2 Judge s ( ALJ ) holding that Plaintiff can perform jobs such 3 as hand packer, dishwasher, and food preparer. (JS at 3.) 4 5 This Memorandum Opinion will constitute the Court s findings of 6 fact and conclusions of law. After reviewing the matter, the Court 7 concludes that the decision of the Commissioner must be affirmed. 8 9 I 10 THERE IS NO DOT INCONSISTENCY BETWEEN THE ALJ S IDENTIFICATION 11 OF JOBS AND PLAINTIFF S RESIDUAL FUNCTIONAL CAPACITY 12 Plaintiff contends that there is a DOT inconsistency in the ALJ s 13 determination of jobs that he can perform, as identified at Step Five 14 of 15 functional capacity ( RFC ). 16 with the ALJ s assessment of his RFC, but rather, with the application 17 of that RFC to jobs identified at Step Five. the sequential evaluation process, and Plaintiff s residual Notably, Plaintiff does not disagree 18 Based on testimony from a vocational expert ( VE ), the ALJ 19 determined that Plaintiff can perform the jobs of hand packer, 20 dishwasher, and food preparer. (AR 20-21.) 21 As determined by his RFC, Plaintiff can perform a limited range 22 of medium exertional work, use a cane as necessary, occasionally climb 23 stairs, but no climbing of ladders, working at heights, or balancing. 24 Plaintiff 25 requiring fast-paced work such as assembly line work. (AR 13-14.) 26 cannot perform jobs requiring hypervigilance or jobs Plaintiff extensively quotes from the language of the DOT as to 27 each of the jobs, assesses his opinion 28 requirements, and then concludes that he is not capable of performing 2 as to their exertional 1 2 these jobs. The Court first notes that the ALJ relied upon the testimony of 3 the VE at the hearing. (AR 51-54.) 4 that the VE is familiar with the DOT and the occupations identified 5 therein. (AR 51.) The ALJ specifically required the VE to explain any 6 testimony that he would provide which would not be in conformance with 7 the DOT. (AR 52.) 8 Plaintiff does not disagree. 9 jobs at Step Five, and Plaintiff, represented by counsel, neither 10 Specifically, the ALJ affirmed The ALJ then posed a hypothetical (Id.), with which Thereafter, the VE identified available objected to this testimony, or asked to do any cross-examination. 11 Plaintiff first asserts that the identified job of hand packer 12 requires balancing or fast paced work such as assembly line work from 13 which he is precluded. 14 preclude Plaintiff from performing any assembly line work, but only 15 fast-paced work. Assembly line work is only one example of what might 16 be considered fast-paced work. 17 job does not indicate that it requires assembly line work. 18 the job of hand packer might incorporate some assembly line work, this 19 does not necessarily translate into the type of fast-paced work from 20 which Plaintiff is precluded. Plaintiff also contends that because he 21 is precluded from balancing, the hand packer job is unavailable 22 because it requires occasional balancing. But the ALJ was entitled to 23 rely upon the testimony and expertise of the VE in this regard. 24 ALJ may take administrative notice of reliable job information, 25 including that provided by a VE. 26 1211, 1218 (9th Cir. 2005). 27 requirements set out in the DOT were not inconsistent with each other. 28 See DOT 920.587-018. As the Commissioner notes, the ALJ did not Moreover, the DOT description of this Even if An See Bayliss v. Barnhart, 427 F.3d Here, the testimony of the VE and the job 3 1 With regard to the second job identified, that of dishwasher 2 (kitchen helper), the Court again concludes that the VE s testimony 3 was not inconsistent with the requirements of the DOT. 4 318.687-010. 5 paced work, but the fact is that even if this job could be considered 6 assembly line work, it would not necessarily entail fast-paced work. 7 Similarly, Plaintiff s claim that because he may occasionally be 8 required to use a cane he cannot perform this job is not well founded 9 because there is no indication in the DOT requirement of this job that See DOT Plaintiff again contends that this job requires fast- 10 both hands are required. Not all of the requirements of the job would 11 require bilateral functions. 12 Finally, as to the job of food preparer (DOT 311.472-010), while 13 this would require that Plaintiff serve customers and deal with 14 people, and thus there would be public contact in contravention of the 15 RFC requirement of no public contact, still, at Step Five, the ALJ met 16 his burden by identifying two jobs (hand packager and dishwasher) 17 which exist in significant numbers in the national economy. Any error 18 in identifying the third job (food preparer) is considered harmless. 19 See Carmickle v. Commissioner of Soc. Sec. Admin.. 533 F.3d 1155, 1162 20 (9th Cir. 2008). 21 For the foregoing reasons, the Court concludes that the ALJ 22 properly identified a sufficient number of jobs at Step Five of the 23 sequential evaluation process, and that the jobs identified did not 24 conflict with the requirements of the DOT, insofar as they might 25 exceed Plaintiff s RFC. 26 // 27 // 28 // Thus, the Court rejects Plaintiff s issue. 4 1 2 3 The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 4 5 6 DATED: January 3, 2013 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5
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