Chapman v. Commissioner of Social Security, No. 2:2020cv01858 - Document 30 (D. Nev. 2021)
Court Description: ORDER denying 27 Motion for Reversal and Remand; ORDER granting 28 Defendant's Cross-Motion to Affirm. Signed by Magistrate Judge Elayna J. Youchah on 11/2/2021. (Copies have been distributed pursuant to the NEF - HAM)
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Chapman v. Commissioner of Social Security Doc. 30 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 ALICIA CHAPMAN, 5 6 7 8 Case No. 2:20-cv-01858-EJY Plaintiff, ORDER v. COMMISSIONER OF SOCIAL SECURITY, Defendant. 9 Plaintiff Alicia Chapman (“Plaintiff”) seeks judicial review of the final decision of the 10 Commissioner of the Social Security Administration (“Commissioner” or the “Agency”) denying 11 her application for disability insurance (“DIB”) under Title II of the Social Security Act. For the 12 reasons stated below, the Commissioner’s decision is affirmed. 13 I. BACKGROUND 14 On August 25, 2016, Plaintiff filed an application for DIB alleging an onset date of August 15 1, 2015. Administrative Record (“AR”) 276-82. The Commissioner denied Plaintiff’s claims by 16 initial determination on November 28, 2016, and upon reconsideration on January 26, 2017. AR 17 165-71, 173-79. On May 24, 2018, Administrative Law Judge (“ALJ”) Rebecca L. Jones held a 18 hearing at which Plaintiff appeared and gave testimony. AR 106-146. A supplemental hearing was 19 held on August 28, 2018. AR 69-105. The ALJ heard testimony from Plaintiff and vocational expert 20 (“VE”) Doug Lear. AR 91-102. Plaintiff’s attorney conducted a brief cross-examination of the VE. 21 AR 99-102. The ALJ ultimately found that Plaintiff was not disabled, issuing her determination on 22 August 20, 2019. AR 31-44. When the Appeals Counsel denied Plaintiff’s request for review on 23 July 27, 2020, AR 1-90, the ALJ’s decision became the final order of the Commissioner. 42 U.S.C. 24 § 405(g). This civil action followed. 25 II. STANDARD OF REVIEW 26 The reviewing court shall affirm the Commissioner’s decision if the decision is based on 27 correct legal standards and the legal findings are supported by substantial evidence in the record. 42 28 1 Dockets.Justia.com 1 U.S.C. § 405(g); Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). 2 Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable 3 mind might accept as adequate to support a conclusion.” Ford v. Saul, 950 F.3d 1141, 1154 (9th 4 Cir. 2020) (quoting Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019)). 5 Commissioner’s alleged errors, the Court must weigh “both the evidence that supports and detracts 6 from the [Commissioner’s] conclusion.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986) 7 (internal citations omitted). In reviewing the 8 “When the evidence before the ALJ is subject to more than one rational interpretation, we 9 must defer to the ALJ’s conclusion.” Batson, 359 F.3d at 1198, citing Andrews v. Shalala, 53 F.3d 10 1035, 1041 (9th Cir. 1995). A reviewing court, however, “cannot affirm the decision of an agency 11 on a ground that the agency did not invoke in making its decision.” Stout v. Comm’r Soc. Sec. 12 Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (internal citation omitted). Finally, the court may not 13 reverse an ALJ’s decision when an error is harmless. Burch v. Barnhart, 400 F.3d 676, 679 (9th 14 Cir. 2005) (internal citation omitted). “[T]he burden of showing that an error is harmful normally 15 falls upon the party attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 16 (2009). 17 18 III. A. 21 22 23 24 Establishing Disability Under The Act To establish whether a claimant is disabled under the Act, there must be substantial evidence 19 20 DISCUSSION that: (a) the claimant suffers from a medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months; and (b) the impairment renders the claimant incapable of performing the work that the claimant previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. 25 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999), citing 42 U.S.C. § 423(d)(2)(A). “If a claimant 26 meets both requirements, he or she is disabled.” Id. 27 The ALJ employs a five-step sequential evaluation process to determine whether a claimant 28 is disabled within the meaning of the Act. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. 2 1 § 404.1520(a). Each step is potentially dispositive and “if a claimant is found to be ‘disabled’ or 2 ‘not-disabled’ at any step in the sequence, there is no need to consider subsequent steps.” Tackett, 3 180 F.3d at 1098 (internal citation omitted); 20 C.F.R. § 404.1520. The claimant carries the burden 4 of proof at steps one through four, and the Commissioner carries the burden of proof at step five. 5 Tackett, 180 F.3d at 1098. 6 The five steps are: 7 Step 1. Is the claimant presently working in a substantially gainful activity? If so, then the claimant is “not disabled” within the meaning of the Social Security Act and is not entitled to disability insurance benefits. If the claimant is not working in a substantially gainful activity, then the claimant’s case cannot be resolved at step one and the evaluation proceeds to step two. See 20 C.F.R. § 404.1520(b). 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Step 2. Is the claimant’s impairment severe? If not, then the claimant is “not disabled” and is not entitled to disability insurance benefits. If the claimant’s impairment is severe, then the claimant’s case cannot be resolved at step two and the evaluation proceeds to step three. See 20 C.F.R. § 404.1520(c). Step 3. Does the impairment “meet or equal” one of a list of specific impairments described in the regulations? If so, the claimant is “disabled” and therefore entitled to disability insurance benefits. If the claimant’s impairment neither meets nor equals one of the impairments listed in the regulations, then the claimant’s case cannot be resolved at step three and the evaluation proceeds to step four. See 20 C.F.R. § 404.1520(d). Step 4. Is the claimant able to do any work that he or she has done in the past? If so, then the claimant is “not disabled” and is not entitled to disability insurance benefits. If the claimant cannot do any work he or she did in the past, then the claimant’s case cannot be resolved at step four and the evaluation proceeds to the fifth and final step. See 20 C.F.R. § 404.1520(e). Step 5. Is the claimant able to do any other work? If not, then the claimant is “disabled” and therefore entitled to disability insurance benefits. See 20 C.F.R. § 404.1520(f)(1). If the claimant is able to do other work, then the Commissioner must establish that there are a significant number of jobs in the national economy that claimant can do. There are two ways for the Commissioner to meet the burden of showing that there is other work in “significant numbers” in the national economy that claimant can do: (1) by the testimony of a vocational expert [(“VE”)], or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2. If the Commissioner meets this burden, the claimant is “not disabled” and therefore not entitled to disability insurance benefits. See 20 C.F.R. §§ 404.1520(f), 404.1562. If the Commissioner cannot meet this burden, then the claimant is “disabled” and therefore entitled to disability benefits. See id. Id. at 1098–99 (internal alterations omitted). 27 28 3 1 B. Summary of ALJ’s Findings 2 At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity 3 from the alleged onset date of August 1, 2015 to the date last insured, December 31, 2015. AR 37. 4 At step two, the ALJ found that Plaintiff suffered from severe medically determinable impairments 5 consisting of moderate to severe right acromioclavicular joint arthrosis and mild cervical 6 degenerative disc disease. Id. The ALJ also found that Plaintiff suffered from a number of medically 7 determinable impairments not lasting for a continuous period of at least 12 months and therefore not 8 rising to the level of severe under 20 CFR 404.1509. Id. At step three, the ALJ found that Plaintiff 9 had no impairment or combination of impairments meeting or equaling any “listed” impairment in 10 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 38. 11 In preparation for step four, the ALJ found that Plaintiff had the residual functional capacity 12 (“RFC”) 1 through the date last insured to “perform sedentary work as defined in 20 CFR 13 404.1567(a);” to “stand and/or walk for 15 to 20 minutes at a time and less than two hours in total 14 in an eight-hour workday … sit for more than six hours total in an eight-hour workday … 15 occasionally balance, stoop, kneel, crouch, and climb,” but “she could never crawl.” AR 39. 16 Plaintiff had the RFC to “occasionally reach overhead and at shoulder height bilaterally.” Id. 17 At step four, the ALJ found Plaintiff “capable of performing past relevant work as a 18 ‘“[r]eceptionist’” as actually and generally performed because receptionist work does not require 19 Plaintiff to perform “work-related activities precluded by” Plaintiff’s RFC. AR 43. 20 Based on the above, the ALJ concluded that Plaintiff “was not under a disability, as defined 21 in the Social Security Act, at any time” from the alleged onset date through the date last insured. Id. 22 23 24 25 26 27 1 28 “Residual functional capacity” is defined as “the most you can still do despite your limitations.” 20 C.F.R. § 416.945(a)(1). 4 1 C. Step Four Analysis 2 2 1. 3 At the time of her 2018 hearings, Plaintiff was a 57-year-old married woman with a high 4 school diploma and no dependent children. AR 76, 119-120. Plaintiff’s husband, who is not 5 working due to disability, and has been receiving disability benefits since 2014, suffers from frequent 6 seizures. AR 120-121. Plaintiff’s descriptions of her work history includes a massage school 7 receptionist position she held from 1996-2006, a medical receptionist position she held from 2007- 8 2009, a housekeeper position she held in 2012, a seasonal position at Target in 2012, and, most 9 recently, a caregiver position she began in September 2015. AR 80, 129, 330. Plaintiff’s relevant history and past work. 10 At step four, “the claimant is the primary source for vocational documentation, and 11 statements by the claimant regarding past work are generally sufficient for determining the skill 12 level, exertional demands, and nonexertional demands of such work.” SSR 82-62. Plaintiff testified 13 that from 2007 to 2009, she had worked as a medical receptionist full time. AR 129. As a medical 14 receptionist, her duties included answering phones, checking in patients, making appointments, 15 “filing, making phone calls, taking care of the front desk,” arranging appointments and looking into 16 medical records. Id. Plaintiff also testified that she had worked as a receptionist at a college, greeting 17 students, answering phones, making appointments, copying, filing, and general “administrator 18 assistant work.” AR 130. 19 Plaintiff further described her medical receptionist job at her second hearing on August 28, 20 2018. She testified that, for eighteen months she worked for Dr. Loren Finley, OB/GYN, as a 21 medical receptionist. AR 84-85. Her work involved, “customer service, patient service, filing, 22 making appointments, scheduling appointments, checking insurance … getting files and everything 23 ready for the next day, mainly office work … computer, faxing … answer[ing] the phones.” AR 85. 24 In addition to testimony, the administrative record includes a Work History Report Plaintiff 25 completed describing the requirements of her medical receptionist job. AR 334. On the handwritten 26 2 27 28 The Court only summarizes Plaintiff’s work history and the VE testimony offered at Plaintiff’s second administrative hearing because Plaintiff stipulates to the ALJ’s findings in steps one through three, to the RFC finding prior to step four, and stipulates that “the ALJ fairly and accurately summarized the evidence contained in the Administrative Record.” ECF No. 27 at 3. The ALJ’s failure to reconcile alleged conflicts between the RFC finding and the requirements of Plaintiff’s past relevant work is the only basis for Plaintiff’s challenge. Id. 5 1 form, Plaintiff wrote that her medical receptionist job required her to “answer multi[ple] phone lines, 2 maintain up keep of front office, customer services, filing, operate front office equipment” and 3 perform “charting.” Id. She wrote that the job required her to walk, stand, crawl, handle, grab, or 4 grasp big objects, and climb for zero hours, sit for 6-7 hours, stoop for 1/3 of the day, kneel for 1/2 5 of the day, and write, type, or handle small objects for 1/3 of the day. Id. Plaintiff left blank the 6 spaces indicating the amount of time spent crouching and, most importantly, reaching. Id. 7 The ALJ at the first hearing asked Plaintiff to explain why she felt unable to work as of the 8 alleged onset date of August 1, 2015. AR 131. Plaintiff began by describing an “incident” in 2014, 9 when she discovered her husband “on the floor, table cracked open” after a near-fatal seizure. AR 10 132-33. She described “difficulties in [her] mind” related to her husband’s seizure, AR 131-32, 11 attempting to cope with and being “overwhelmed” by anxiety around her husband’s condition, and 12 ultimately seeking counselling in 2016 for her psychological distress and “depression.” AR 133. 13 When asked if she believed she could have handled working as a medical receptionist during that 14 period, Plaintiff responded that the receptionist position “wasn’t really that bad;” that she could have 15 done it a “couple of days a week or so” but not on a full-time basis. AR 134. When asked to 16 elaborate on why returning to the position would have been a problem for her, Plaintiff responded, 17 “I don’t know if it would’ve been a problem so much,” Id., and continued, “I don’t know if I, if I 18 would’ve been able to concentrate full-time, eight hours a day on my job and give it 100 percent if 19 my mind is going to always focus on what’s going on with my husband. Is he okay? Why didn’t he 20 answer the phone? Did he have a seizure? Is he on the floor? I mean, that’s what I was going 21 through.” AR 134-35. The ALJ asked Plaintiff if it was “fair to say that, during this time, it was 22 more of what was going on with your depression and going on mentally than what was going on 23 with you physically?” AR 135. Plaintiff responded, “I would probably say yeah.” Id. 24 Plaintiff also testified at her first hearing to issues with her rotator cuff, for which she saw a 25 physical therapist sometime between 2015-2016. AR 135-136. She testified that physical therapy 26 was helpful. AR 136. In addition, Plaintiff said she suffered from “a little bit of stiffness” “every 27 once in a while” due to degenerative disc disease in her neck. Id. She further testified at her second 28 hearing that the physical therapy “was helpful during that time,” but that she now had to return for 6 1 more physical therapy to treat her rotator cuff. AR 90. At one point during Plaintiff’s first hearing, 2 when the ALJ was questioning Plaintiff about her work in 2015 as a caregiver, the ALJ asked if 3 Plaintiff’s shoulder ever interfered with her work, to which she responded, “I would say more of my, 4 my legs, my knees, and I would say more of my mind.” AR 142. 5 2. 6 VE Doug Lear appeared telephonically at Plaintiff’s supplemental hearing on August 28, 7 2018 to testify before the ALJ. AR 74. An ALJ is not required to consult a vocational expert in 8 making her determination that a claimant can perform past relevant work at step four, but the 9 regulations permit VE testimony at this stage. 20 C.F.R. § 404.1560(b)(2) (“We may use the services 10 of vocational experts or vocational specialists ... to obtain evidence we need to help us determine 11 whether you can do your past relevant work, given your residual functional capacity.”). VE testimony at Plaintiff’s second administrative hearing. 12 At the second administrative hearing, the ALJ went through Plaintiff’s work history with 13 Plaintiff again for the benefit of the VE. AR 76-93. The VE testified that Plaintiff performed past 14 relevant work as a home attendant, sales attendant, receptionist, administrative clerk, cleaner, and 15 general clerk. AR 93-94. The VE in relevant part classified Plaintiff’s past work at the OB/GYN 16 office as “receptionist,” DOT number 237.367-038, defined as “sedentary” and “semiskilled” work, 17 specific vocational preparation or “SVP” 3 level 4. AR 94. Following the classification testimony, 18 the ALJ posed a series of hypotheticals to the VE, the fourth of which is repeated here: 19 I would like you to assume an individual with the Claimant’s age, education and work experience, who is able to perform work at the sedentary level. This person could stand and walk for less than two hours total, for 15 to 20 minutes at a time, would be able to sit for more than six hours in an eight-hour work day, occasionally climb, balance, stoop, kneel, and crouch, could never crawl, and could occasionally reach overhead and shoulder height bilaterally. 20 21 22 23 AR 98. When the ALJ asked whether the hypothetical individual could work in any of Plaintiff’s 24 past relevant positions “as it was actually performed or as customarily performed per the DOT,” the 25 VE responded that the individual could work as a receptionist. Id. On the subject of overhead 26 reaching, the VE in a previous hypothetical commented that the term is not defined in the DOT, but 27 3 28 The SVP is “the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation.” DOT, App. C, 1991 WL 688702. 7 1 that in his experience none of Plaintiff’s past relevant occupations would “require reaching overhead 2 more than occasionally.” AR 95. The VE made no similar comment about bilateral reaching. After 3 the VE finished testifying, the ALJ asked him if his testimony was “consistent with the Dictionary 4 of Occupational Titles,” to which the VE responded, “[i]t has.” AR 101. 5 3. 6 The ALJ ultimately found that Plaintiff could perform her past relevant work as a receptionist 7 without “the performance of work-related activities precluded by the claimant’s residual functional 8 capacity.” AR. 43. The ALJ went on to list Plaintiff’s past relevant work by DOT number, exertion 9 level, and SVP. Id. In support of her finding, the ALJ wrote, 10 The ALJ’s step four findings. [t]he vocational expert testified during the supplemental hearing that an individual with the above-referenced residual functional capacity would be able to perform the past relevant work as a Receptionist. The undersigned agrees with the vocational expert’s testimony. After comparing the residual functional capacity with the physical and mental demands of this job, the undersigned finds that the claimant was able to perform it as actually and generally performed through the date last insured (SSR 00-4p). Pursuant to SSR 00-4p, the undersigned determined that the vocational expert’s testimony is consistent with the information contained in the DOT. 11 12 13 14 15 Id. The above represents the whole of the ALJ’s step four analysis. 16 D. Issues Presented 17 Plaintiff contends that the ALJ’s finding at step four that Plaintiff was capable of performing 18 receptionist work “as generally performed” is not supported by substantial evidence. Specifically, 19 Plaintiff contends the ALJ erred by improperly failing to “inquire as to the existence of” and “note 20 apparent conflicts between” the vocational expert’s testimony and the DOT. ECF No 27 at 4. 21 Plaintiff’s reasoning is as follows: the fourth hypothetical presented was the only hypothetical that 22 was “substantially identical to the RFC that the ALJ ultimately found.” 4 Id. The VE testified that 23 this hypothetical individual could perform the occupation of receptionist. Id. Therefore, the ALJ’s 24 step four finding that Plaintiff could perform her past relevant work as a receptionist was based on 25 the fourth hypothetical. Id. Both the hypothetical and the RFC included a limitation to 26 4 27 28 Plaintiff writes that the fourth hypothetical is substantially similar to her RFC, ECF No 27 at 4, but on the following page states, “[a]s such, the ALJ’s finding at step four was based on the expert’s response to the first hypothetical. Id. at 5. As the fourth hypothetical and not the first is identical to Plaintiff’s RFC, the Court treats Plaintiff’s statement on page 5 of her brief as a typo. 8 1 “occasionally” reaching overhead and at shoulder height bilaterally. AR 39, 98. The tables 2 presented in the Selected Characteristics of Occupations (“SCO”), 5 however, lists the occupation of 3 receptionist as requiring “frequent” reaching. SCO at 07.04.02. Plaintiff argues that this is an 4 “apparent” conflict that the ALJ had a duty to reconcile according to the Ninth Circuit as articulated 5 in Lamear v. Berryhill, 865 F.3d 1201, 1206 (9th Cir. 2017). ECF No. 27 at 4. Plaintiff contends 6 that the ALJ failed to do so, and that her step four finding is not supported by substantial evidence 7 as a result. Id. 8 1. 9 The ALJ did not err in failing to resolve the conflict between the VE testimony and the SCO because the conflict was not “apparent.” 10 At step four, the claimant has the burden of proving both that she cannot perform her past 11 relevant work as actually performed and that she cannot perform her past relevant work as generally 12 performed in the national economy. Stacy v. Colvin, 825 F.3d 563, 569 (9th Cir. 2016). The ALJ, 13 however, is still obligated to adequately develop the record at step four. C.F.R. § 404.1545(a)(3); 14 Crane v. Shalala, 76 F.3d 251, 255 (9th Cir. 1996). The obligation to develop the record “is triggered 15 only when there is ambiguous evidence or when the record is inadequate to allow for proper 16 evaluation of the evidence.” Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001). 17 Included in the ALJ’s duty to develop the record is the obligation to resolve apparent conflicts 18 between VE testimony and the DOT. SSR 00-4p; 6 Massachi v. Astrue, 486 F.3d 1149 (9th Cir. 19 2007). This obligation persists at step four despite the fact that VE testimony is not required at this 20 stage. Pinto v. Massanari, 249 F.3d 840, 846 (9th Cir. 2001). A conflict is a discrepancy between 21 the testimony and DOT that is “obvious or apparent.” Gutierrez v. Colvin, 844 F.3d 804, 807 (9th 22 Cir. 2016). 23 Plaintiff’s argument that “the ALJ failed to inquire as to the existence of conflicts between 24 the vocational testimony and the DOT,” ECF No. 27 at 4, is misleading. At the close of the VE’s 25 5 26 27 28 The SCO is the companion volume to the DOT providing more detailed explanations of the occupations listed in the DOT. The ALJ’s duty to resolve conflicts between VE testimony and the DOT includes considering information presented in the SCO. SSR 00-4p. 6 SSR 00-4p reads, “[w]hen there is an apparent unresolved conflict between VE or VS evidence and the DOT, the adjudicator must elicit a reasonable explanation for the conflict before relying on the VE or VS evidence to support a determination or decision about whether the claimant is disabled. At the hearings level, as part of the adjudicator's duty to fully develop the record, the adjudicator will inquire, on the record, as to whether or not there is such consistency.” 9 1 testimony, the ALJ explicitly asked him to confirm that his testimony was consistent with the DOT, 2 and the VE said that it was. AR 101. To the extent that Plaintiff is arguing that the ALJ had a duty 3 to make a more extensive conflicts inquiry, Lamear v. Berryhill holds that “the ALJ’s obligation to 4 inquire further” is only triggered where a conflict is “obvious or apparent.” Lamear, 865 F.3d at 5 1205. This means that “tasks that aren't essential, integral, or expected parts of a job are less likely 6 to qualify as apparent conflicts that the ALJ must ask about.” Gutierrez, 844 F.3d at 808. Further, 7 “where the job itself is a familiar one … less scrutiny by the ALJ is required.” Id. 8 Plaintiff argues that a limitation to occasional overhead and bilateral reaching constitutes an 9 “apparent” conflict with the SCO, which asserts that receptionists engage in reaching “frequently” 10 from 1/3 to 2/3 of the time. SCO at 07.04.02. The SCO does not distinguish between overhead and 11 bilateral reaching, a fact the VE repeatedly noted in his testimony before going on to explain that in 12 his experience, none of Plaintiff’s past work required “overhead reaching” more than occasionally. 13 AR 95; see also AR 98 (“again, the overhead reaching is based upon experience”). While the ALJ 14 has a duty to “ask follow up questions” in the face of ambiguous evidence, “the obligation doesn't 15 extend to unlikely situations or circumstances” and is “fact dependent.” Gutierrez, 844 F.3d at 808- 16 09. 17 While an ALJ is not “free to disregard the Dictionary’s definitions,” neither is she expected 18 to interrogate every minute departure from the DOT or ignore common sense. Id. at 808. In 19 Gutierrez v. Colvin, for example, the Court declined to find an apparent conflict between a claimant 20 who could never reach overhead with her right arm and VE testimony that claimant could perform 21 the job of cashier, despite the Dictionary listing the position as requiring “frequent” reaching. Id. at 22 807. In coming to its conclusion, the Court acknowledged that, “[a]ccording to the Dictionary, 23 ‘frequent reaching’ is required of … cashiers … But anyone who’s made a trip to the corner grocery 24 store knows that while a clerk stocking shelves has to reach overhead frequently, the typical cashier 25 never has to.” Id. The DOT’s “general statement” that the job required frequent reaching did not 26 obviously compel the conclusion that a cashier would likely be reaching overhead frequently; rather, 27 this was an “unlikely and unforeseeable” scenario not consistent with its typical understanding of 28 10 1 cashier work. Id. Therefore, the conflict was not sufficiently obvious or apparent such that the ALJ 2 was required to probe more deeply into the VE’s testimony. Id. 3 Here, at least with respect to overhead reaching, the VE’s testimony clarifying that “overhead 4 reaching is not defined” by the Dictionary, but that experience suggests the receptionist position 5 only requires occasional reaching overhead was not sufficiently apparent to trigger the ALJ’s 6 obligation to “inquire further” into possible conflicts. AR 95; Lamear, 865 F.3d at 1205. Just as the 7 Court found no obvious need for a typical cashier to reach overhead frequently in Gutierrez, despite 8 the DOT’s classification, the Court does not find an apparent or obvious unresolved conflict here. 9 The ALJ was entitled to rely on the VE’s professional experience and her own common sense that 10 overhead reaching is not frequently required in receptionist work, which is, after all, a sedentary job 11 according to the DOT. 12 Whether the same can be said for bilateral reaching is less clear. Plaintiff correctly notes that 13 the VE never specifically mentioned bilateral reaching at shoulder height, and that his reaching 14 testimony was limited to overhead reaching only. ECF No. 27 at 5. Plaintiff argues that, with respect 15 to the job of receptionist, “our common experience does not rule out reaching at shoulder height” 16 frequently. ECF No 29 at 3-4. She writes, “[o]ur common experience tells us that when we are 17 sitting, something right in front of us—such as a computer screen, telephone, switchboard, etc.—is 18 effectively at shoulder height when we reach for it.” Id. at 3. The Court sees some merit to these 19 arguments, but ultimately does not find a conflict here sufficiently apparent to trigger the ALJ’s duty 20 to interrogate the VE beyond what took place. 21 First, the Court is not persuaded that an individual sitting at a receptionist’s desk, for 22 example, would indeed need to raise her arms all the way to shoulder height to reach for a computer 23 screen or phone, especially considering that office chairs can be adjusted by height or moved closer 24 to the objects in question to minimize the need for extensive reaching. While common experience 25 does not absolutely “rule out” the need to reach, common experience also does not obviously lead 26 to the conclusion that a receptionist would need to reach at shoulder height over 1/3 of the time as 27 opposed to “occasionally.” 28 11 1 The description of a receptionist’s duties in the DOT itself does not immediately suggest a 2 need for receptionists to reach at shoulder height bilaterally at a frequent rate. U.S. Dep’t of Labor, 3 Dictionary of Occupational Titles, 237.367-038 (4th ed. 1991), 1991 WL 672192. The DOT entry 4 states that a receptionist: 5 [r]eceives callers at establishment, determines nature of business, and directs callers to destination: Obtains caller's name and arranges for appointment with person called upon. Directs caller to destination and records name, time of call, nature of business, and person called upon. May operate PBX telephone console to receive incoming messages. May type memos, correspondence, reports, and other documents. May work in office of medical practitioner or in other health care facility and be designated Outpatient Receptionist (medical ser.) or Receptionist, Doctor's Office (medical ser.). May issue visitor's pass when required. May make future appointments and answer inquiries [INFORMATION CLERK (clerical) 237.367-022]. May perform variety of clerical duties [ADMINISTRATIVE CLERK (clerical) 219.362-010] and other duties pertinent to type of establishment. May collect and distribute mail and messages. 6 7 8 9 10 11 12 Id. As Defendant aptly notes, “[n]othing in this description suggests that medical receptionists spend 13 more than one-third of their workday extending their arms between shoulder and head level.” ECF 14 No. 28 at 7. 15 The Court can imagine a workplace set-up demanding receptionists engage in frequent 16 bilateral reaching at shoulder height, but ultimately the difference between the occasional bilateral 17 reaching Plaintiff could perform and the frequent reaching receptionists generally perform according 18 to the SCO is not distinct enough to constitute an “obvious or apparent” conflict. This is especially 19 true given that the SCO only defines reaching generally as “[e]xtending hand(s) and arm(s) in any 20 direction,” which presumably is not limited to overhead or shoulder height reaching, but rather could 21 be reasonably interpreted to include reaching at a downward angle below shoulder height level. SCO 22 C-3. 23 The facts here do not demonstrate the ALJ ignored an apparent conflict between the DOT 24 and VE testimony. The VE testified that an individual with Plaintiff’s limitations, who could 25 “occasionally reach overhead and shoulder height bilaterally” could perform “the occupation of 26 receptionist.” AR 98. Just as in Gutierrez, “[t]he ALJ was entitled to rely on the expert’s 27 “experience in job placement” to account for “a particular job’s requirements … and correctly did 28 so here.” Gutierrez, 844 F.3d at 809, quoting SSR 00-4P, 2000 WL 1898704, at *2 (2000). 12 1 2. 2 Regardless of whether Plaintiff could perform her work as generally performed, there was sufficient evidence in the record for the ALJ to conclude that she could perform her job as actually performed. 3 Because a claimant has the burden of proving the inability to perform past work as generally 4 performed and as actually performed, Stacy, 825 F.3d at 569, a claimant who does not establish 5 disability with respect to either work as generally or actually performed is not disabled. Craig v. 6 Berryhill, Case No. 2:17-cv-02978-GMN-EJY, 2019 WL 4936033, at *16 (D. Nev. Sept. 17, 2019) 7 (“the ALJ must make findings of fact regarding … whether Plaintiff can return to past relevant work 8 either as actually performed or as generally performed in the national economy. … If a claimant can 9 perform his past relevant work either as actually performed or generally performed, he is not 10 disabled.”). Defendant argues that, because Plaintiff “offers no specific challenge to the ALJ’s 11 finding that she could perform her receptionist job as she actually performed it … th[e] Court should 12 reject Plaintiff’s argument and affirm the ALJ’s step four finding.” ECF No 28 at 6. In response, 13 Plaintiff points out that the ALJ combined the two types of work when questioning the VE; therefore, 14 her non-specific challenge to the ALJ’s step four finding that Plaintiff could perform past relevant 15 work is appropriate. ECF No. 29. 16 A review of the record confirms that the ALJ and VE indeed discussed actual and general 17 performance simultaneously. See e.g., AR 95, 7 AR 98. 8 Insofar as Defendant is arguing that Plaintiff 18 has waived her right to challenge the ALJ’s actual performance finding, 9 the Court finds that 19 Plaintiff’s general challenge to the ALJ’s conclusion that “the claimant was able to perform [past 20 relevant work] as actually and generally performed” is sufficient. AR 43. 21 This conclusion, however, does not mean that Plaintiff does not have to specifically establish 22 inability to perform past work as actually performed, as is her burden. Berryhill, 2019 WL 4936033 23 at *16; Stacy, 825 F.3d at 569. The two sources of information on which an ALJ may base a 24 7 25 26 27 28 ALJ: Could an individual with these limitations perform any of the Claimant’s past work as it was actually performed or as customarily performed per the DOT? VE: Yes, Your Honor. She could perform all past work as defined by the DOT and performed. 8 ALJ: Could an individual with these limitations perform any of the Claimant’s past work as it was actually performed or as customarily performed per the DOT? VE: Yes, Your Honor. The occupation of receptionist would remain, Your Honor. 9 Defendant does not explicitly raise the issue of waiver, but rather repeatedly mentions that Plaintiff failed to challenge the ALJ’s actual performance finding at the hearing, despite being represented by counsel. See, e.g., ECF No. 28 at 6. 13 1 determination as to Plaintiff’s past work as actually performed are a vocational report and the 2 claimant’s own testimony. Pinto, 249 F.3d at 845. Defendant argues that Plaintiff’s handwritten 3 description of her receptionist job contained in the administrative record does not establish her 4 inability to work as a receptionist as she actually performed the job. ECF No. 28 at 7. Plaintiff 5 describes her receptionist work as requiring her to “[a]nswer multi[ple] phone lines, maintain up 6 keep of front office, customer services, filing, operate front office equipment, charting.” AR 334. 7 This, Defendant argues, is not inconsistent with her RFC. ECF No. 28 at 7. With respect to reaching, 8 Defendant argues Plaintiff stated on her Work History Report that she “did not need to walk, stand, 9 climb, crawl, handle, or reach.” ECF No. 28 at 2 (emphasis added). Plaintiff responds that this is a 10 mischaracterization of her responses. The form in question does not report the amount of reaching 11 Plaintiff states she performed on the job; rather, Plaintiff left the space for reaching blank. ECF No. 12 29 at 2; AR 334. A blank response, Plaintiff argues, is in contrast to her responses regarding walking, 13 standing, climbing, crawling, and handling all of which have a “0” in the space for reporting number 14 of hours per day. Id. In the end, however, what is true is that Plaintiff described the amount of time 15 she spent in various types of activity, while reporting nothing for reaching. AR 34. The Court finds 16 that Plaintiff’s failure to describe how many hours she spent reaching daily is not a claim that she 17 was reaching more than 1/3 of the day as precluded by her RFC. 18 Plaintiff also argues that the description of her receptionist job she provided was “not 19 adequate to support the conclusion that Plaintiff’s duties were meaningfully different, in terms of the 20 amount of reaching, than the general description.” ECF No. 29 at 2. This argument again misstates 21 Plaintiff’s burden, which is not to establish that the ALJ lacked evidence to conclude Plaintiff’s 22 actual work deviated from the job as customarily performed, but rather to establish that her 23 limitations as articulated in the RFC prevented her from performing receptionist work as she has 24 actually performed in the past. Berryhill, 2019 WL 4936033 at *16; Stacy, 825 F.3d at 569. Plaintiff 25 has not met this burden and, indeed, much of the testimony at her hearings affirmatively contradicts 26 the claim that she could not return to her old position due to the limitations described in her RFC. 27 With respect to the OB/GYN receptionist job, Plaintiff testified that it “wasn’t really that 28 bad,” that she did not know if returning to the job “would’ve been a problem so much,” but that she 14 1 was unsure if she could handle it full time because she did not know if she “would’ve been able to 2 concentrate full-time, eight hours a day on [the] job and give it 100 percent if [her] mind is going to 3 always focus on what’s going on with [her] husband.” AR 134-35. And, Plaintiff de-emphasizes 4 the negative effects of her shoulder injury. AR 136. The ALJ in her decision specifically notes that 5 “[t]he record strongly suggests that the claimant did not work during the relevant period primarily 6 due to taking care of her husband. Notably, the claimant acknowledged during the hearing that she 7 was unable to work full-time through the date last insured because she was focused on her husband’s 8 fragile health. … This evidence greatly suggests that her physical symptoms were not as limiting as 9 claimed.” AR 40. While the validity of Plaintiff’s RFC is not at issue, Plaintiff’s testimony casts 10 doubt on her claim that she could not perform receptionist work as it was actually performed. 11 Plaintiff does not offer a meaningful affirmative argument that she was unable to work as a 12 receptionist as actually performed. Her testimony supports the opposite conclusion. Plaintiff 13 confined her appeal to challenging the ALJ’s step four determination on the basis that the ALJ’s 14 finding was not supported by substantial evidence, a standard the Ninth Circuit describes as 15 “extremely deferential.” Thomas v. CalPortland, 993 F.3d 1204, 1208 (9th Cir. 2021). Because the 16 ALJ was only required to find substantial evidence that Plaintiff was not disabled with respect to her 17 work as actually performed or as generally performed, and here the Court finds substantial evidence 18 of both, the Commissioner’s decision is affirmed. 19 20 21 IV. ORDER IT IS HEREBY ORDERED that Plaintiff’s Motion for Reversal and Remand (ECF No. 27) is DENIED. 22 IT IS FURTHER ORDERED that Defendant’s Cross-Motion to Affirm is GRANTED. 23 DATED this 2nd of November, 2021. 24 25 26 ELAYNA J. YOUCHAH UNITED STATES MAGISTRATE JUDGE 27 28 15
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