Eloisa Frias v. Carolyn W. Colvin, No. 2:2015cv02185 - Document 19 (C.D. Cal. 2015)

Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY by Magistrate Judge John E. McDermott. IT IS HEREBY ORDERED that Judgment be entered affirming the decision of the Commissioner of Social Security and dismissing this case with prejudice. (es)

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Eloisa Frias v. Carolyn W. Colvin Doc. 19 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 ELOISA FRIAS, Plaintiff, 13 14 v. CAROLYN W. COLVIN, 15 Acting Commissioner of Social Security, 16 Defendant. 17 ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 15-02185-JEM MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY 18 PROCEEDINGS 19 On March 24, 2015, Eloisa Frias (“Plaintiff” or “Claimant”) filed a complaint seeking 20 review of the decision by the Commissioner of Social Security (“Commissioner”) denying 21 Plaintiff’s application for Social Security Disability Insurance benefits. The Commissioner filed 22 an Answer on July 8, 2015. On November 3, 2015, the parties filed a Joint Stipulation (“JS”). 23 The matter is now ready for decision. 24 Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed bef ore this 25 Magistrate Judge. After reviewing the pleadings, transcripts, and administrative record (“AR”), 26 the Court concludes that the Commissioner’s decision must be affirmed and this case 27 dismissed with prejudice. 28 Dockets.Justia.com 1 BACKGROUND 2 Plaintiff is a 48-year-old female who applied for Social Security Disability Insurance 3 benefits on May 20, 2011, alleging disability beginning February 4, 2011. (AR 20.) The ALJ 4 determined that Plaintiff had not engaged in substantial gainful activity since February 4, 2011, 5 the alleged onset date. (AR 22.) 6 Plaintiff’s claim was denied initially on October 18, 2011, and on reconsideration on April 7 10, 2012. (AR 20.) Plaintiff filed a timely request for hearing and on July 9, 2013, the 8 Administrative Law Judge (“ALJ”) Mary L. Everstine held a video hearing in San Luis Obispo, 9 California. (AR 20.) Plaintiff appeared in San Luis Obispo and testif ied at the hearing. (AR 10 20.) Plaintiff was represented by counsel. (AR 20.) Vocational expert (“VE”) Alan E. 11 Cummings also appeared and testified at the hearing. (AR 20.) 12 The ALJ issued an unfavorable decision on July 22, 2013. (AR 20-29.) The Appeals 13 Council denied review on October 28, 2014. (AR 10-12.) 14 DISPUTED ISSUES 15 As reflected in the Joint Stipulation, Plaintiff raises the following disputed issues as 16 grounds for reversal and remand: 17 1. substantial evidence and free of legal error. 18 19 20 21 22 Whether the ALJ’s finding of no-severe mental impairment is based on 2. Whether substantial evidence supports the ALJ’s determination that Ms. Frias can return to her past relevant work as an eligibility worker. STANDARD OF REVIEW Under 42 U.S.C. § 405(g), this Court reviews the ALJ’s decision to determine whether 23 the ALJ’s findings are supported by substantial evidence and free of legal error. Smolen v. 24 Chater, 80 F.3d 1273 , 1279 (9th Cir. 1996); see also DeLorm e v. Sullivan, 924 F.2d 841, 846 25 (9th Cir. 1991) (ALJ’s disability determination must be supported by substantial evidence and 26 based on the proper legal standards). 27 Substantial evidence means “‘more than a mere scintilla,’ but less than a 28 preponderance.” Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting Richardson v. 2 1 Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is “such relevant evidence as a 2 reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 3 401 (internal quotation marks and citation omitted). 4 This Court must review the record as a whole and consider adverse as well as 5 supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). W here 6 evidence is susceptible to more than one rational interpretation, the ALJ’s decision m ust be 7 upheld. Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). 8 “However, a reviewing court must consider the entire record as a whole and may not affirm 9 simply by isolating a ‘specific quantum of supporting evidence.’” Robbins, 466 F.3d at 882 10 (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)); see also Orn v . Astrue, 495 11 F.3d 625, 630 (9th Cir. 2007). THE SEQUENTIAL EVALUATION 12 13 The Social Security Act defines disability as the “inability to engage in any substantial 14 gainful activity by reason of any medically determinable physical or mental impairment which 15 can be expected to result in death or . . . can be expected to last for a continuous period of not 16 less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Commissioner has 17 established a five-step sequential process to determine whether a claimant is disabled. 20 18 C.F.R. §§ 404.1520, 416.920. 19 The first step is to determine whether the claimant is presently engaging in substantial 20 gainful activity. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). If the claimant is engaging 21 in substantial gainful activity, disability benefits will be denied. Bowen v. Yuckert, 482 U.S. 137, 22 140 (1987). Second, the ALJ must determine whether the claimant has a severe impairment or 23 combination of impairments. Parra, 481 F.3d at 746. An impairment is not severe if it does not 24 significantly limit the claimant’s ability to work. Smolen, 80 F.3d at 1290. Third, the ALJ must 25 determine whether the impairment is listed, or equivalent to an impairment listed, in 20 C.F.R. 26 Pt. 404, Subpt. P, Appendix I of the regulations. Parra, 481 F.3d at 746. If the impairment 27 meets or equals one of the listed impairments, the claimant is presumptively disabled. Bowen, 28 482 U.S. at 141. Fourth, the ALJ must determine whether the impairment prevents the 3 1 claimant from doing past relevant work. Pinto v. Massanari, 249 F.3d 840, 844-45 (9th Cir. 2 2001). Before making the step four determination, the ALJ first must determine the claimant’s 3 residual functional capacity (“RFC”). 20 C.F.R. § 416.920(e). The RFC is “the most [one] can 4 still do despite [his or her] limitations” and represents an assessment “based on all the relevant 5 evidence.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). T he RFC must consider all of the 6 claimant’s impairments, including those that are not severe. 20 C.F.R. §§ 416.920(e), 7 416.945(a)(2); Social Security Ruling (“SSR”) 96-8p. 8 If the claimant cannot perform his or her past relevant work or has no past relevant work, 9 the ALJ proceeds to the fifth step and must determine whether the impairment prevents the 10 claimant from performing any other substantial gainful activity. Moore v. Apfel, 216 F.3d 864, 11 869 (9th Cir. 2000). The claimant bears the burden of proving steps one through four, 12 consistent with the general rule that at all times the burden is on the claimant to establish his or 13 her entitlement to benefits. Parra, 481 F.3d at 746. Once this prima facie case is established 14 by the claimant, the burden shifts to the Commissioner to show that the claimant may perform 15 other gainful activity. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). T o support 16 a finding that a claimant is not disabled at step five, the Commissioner must provide evidence 17 demonstrating that other work exists in significant numbers in the national economy that the 18 claimant can do, given his or her RFC, age, education, and work experience. 20 C.F.R. 19 § 416.912(g). If the Commissioner cannot meet this burden, then the claimant is disabled and 20 entitled to benefits. Id. THE ALJ DECISION 21 22 In this case, the ALJ determined at step one of the sequential process that Plaintiff has 23 not engaged in substantial gainful activity since February 4, 2011, the alleged onset date. (AR 24 22.) 25 At step two, the ALJ determined that Plaintiff has the following medically determinable 26 severe impairments: right shoulder impingement, status post right shoulder surgical repair; 27 status post right carpal tunnel release and tenosynovectomy; degenerative disc disease lumbar 28 spine and cervical spine. (AR 22.) 4 At step three, the ALJ determined that Plaintiff does not have an impairment or 1 2 combination of impairments that meets or medically equals the severity of one of the listed 3 impairments. (AR 23.) The ALJ then found that Plaintiff has the RFC to perform light work as defined in 20 4 5 C.F.R. § 404.1567(b), with the following limitations: 6 Claimant is further limited to occasional climb, stoop, crouch, and crawl; 7 frequent balance and kneel; frequent, but not constant, handling and 8 fingering; occasional left foot control and pushing/pulling; and occasional 9 overhead reaching bilaterally. 10 (AR 23-28.) In determining the above RFC, the ALJ made an adverse credibility determination, 11 which Plaintiff does not challenge here. (AR 25.) At step four, the ALJ found that Plaintiff is able to perform her past relevant work as an 12 13 eligibility worker. (AR 28.) Consequently, the ALJ found that Claimant was not disabled, within the meaning of the 14 15 Social Security Act. (AR 28-29.) 16 DISCUSSION 17 The ALJ’s decision must be affirmed. The ALJ properly determined that Plaintiff’s 18 mental impairments are nonsevere. The ALJ’s RFC is supported by substantial evidence. The ALJ properly determined that Plaintiff was able to perform her past relevant work as 19 20 an eligibility worker. The ALJ’s nondisability determination is supported by substantial evidence and free of 21 22 legal error. 23 I. 24 25 26 27 THE ALJ PROPERLY DETERMINED THAT PLAINTIFF’S MENTAL IMPAIRMENTS ARE NONSEVERE Plaintiff contends that the ALJ’s nonseverity finding as to her mental impairments is not supported by substantial evidence. The Court disagrees. /// /// 28 5 1 A. 1. 2 3 Relevant Federal Law Nonseverity At step two of the sequential inquiry, the ALJ determines whether the claimant has a 4 medically severe impairment or combination of impairments. Bowen, 482 U.S. at 140-41. An 5 impairment is not severe if it does not significantly limit the claimant’s ability to work. Smolen, 6 80 F.3d at 1290. The ALJ, however, must consider the combined effect of all the claimant’s 7 impairments on his ability to function, regardless of whether each alone was sufficiently severe. 8 Id. Also, the ALJ must consider the claimant’s subjective symptoms in determining severity. 9 Id. 10 The step two determination is a de minimis screening device to dispose of groundless 11 claims. Bowen, 482 U.S. at 153-54. An impairment or combination of impairments can be 12 found nonsevere only if the evidence establishes a slight abnormality that has no more than a 13 minimal effect on an individual’s ability to work. See SSR 85-28; Webb v. Barnhart, 433 F.3d 14 683, 686-87 (9th Cir. 2006); Smolen, 80 F.3d at 1290; Yuckert v. Bowen, 841 F.2d 303, 306 15 (9th Cir. 1988) (adopting SSR 85-28). If an adjudicator is unable to determine clearly the effect 16 of an impairment or combination of impairments on the individual’s ability to do basic work 17 activities, the sequential process should not end at step two. Webb, 433 F.3d at 687 (adopting 18 SSR 85-28). 19 20 2. Physician Opinions The ALJ’s RFC is not a medical determination but an administrative finding or legal 21 decision reserved to the Commissioner based on consideration of all the relevant evidence, 22 including medical evidence, lay witnesses, and subjective symptoms. See SSR 96-5p; 20 23 C.F.R. § 1527(e). In determining a claimant’s RFC, an ALJ must consider all relevant evidence 24 in the record, including medical records, lay evidence, and the effects of symptoms, including 25 pain reasonably attributable to the medical condition. Robbins, 446 F.3d at 883. 26 In evaluating medical opinions, the case law and regulations distinguish among the 27 opinions of three types of physicians: (1) those who treat the claimant (treating physicians); (2) 28 those who examine but do not treat the claimant (examining physicians); and (3) those who 6 1 neither examine nor treat the claimant (non-examining, or consulting, physicians). See 20 2 C.F.R. §§ 404.1527, 416.927; see also Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). In 3 general, an ALJ must accord special weight to a treating physician’s opinion because a treating 4 physician “is employed to cure and has a greater opportunity to know and observe the patient 5 as an individual.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citation om itted). If 6 a treating source’s opinion on the issues of the nature and severity of a claimant’s impairments 7 is well-supported by medically acceptable clinical and laboratory diagnostic techniques, and is 8 not inconsistent with other substantial evidence in the case record, the ALJ must give it 9 “controlling weight.” 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). 10 Where a treating doctor’s opinion is not contradicted by another doctor, it may be 11 rejected only for “clear and convincing” reasons. Lester, 81 F.3d at 830. However, if the 12 treating physician’s opinion is contradicted by another doctor, such as an examining physician, 13 the ALJ may reject the treating physician’s opinion by providing specific, legitimate reasons, 14 supported by substantial evidence in the record. Lester, 81 F.3d at 830-31; see also Orn, 495 15 F.3d at 632; Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). W here a treating 16 physician's opinion is contradicted by an examining professional’s opinion, the Commissioner 17 may resolve the conflict by relying on the examining physician’s opinion if the examining 18 physician’s opinion is supported by different, independent clinical findings. See Andrews v. 19 Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995); Orn, 495 F.3d at 632. Sim ilarly, to reject an 20 uncontradicted opinion of an examining physician, an ALJ must provide clear and convincing 21 reasons. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). If an examining physician’s 22 opinion is contradicted by another physician’s opinion, an ALJ must provide specific and 23 legitimate reasons to reject it. Id. However, “[t]he opinion of a non-examining physician cannot 24 by itself constitute substantial evidence that justifies the rejection of the opinion of either an 25 examining physician or a treating physician”; such an opinion may serve as substantial 26 evidence only when it is consistent with and supported by other independent evidence in the 27 record. Lester, 81 F.3d at 830-31; Morgan, 169 F.3d at 600. 28 7 1 B. Analysis 2 Plaintiff Eloisa Frias alleges pain and weakness in her neck, upper and lower back, right 3 shoulder, right carpal tunnel syndrome, and depression and anxiety. (AR 22, 24.) The ALJ 4 acknowledged Plaintiff’s medically determinable severe physical impairments of right shoulder 5 impingement, carpal tunnel release, and degenerative disc disease. (AR 22.) The ALJ 6 assessed a light work RFC with some limitations, noting improvement with treatment and 7 medication. (AR 23-24, 28.) The ALJ, however, found that Plaintiff’s impairments of 8 depression and anxiety are nonsevere. (AR 22, 27.) Plaintiff, relying on moderate limitations 9 found by consulting psychological examiner Dr. Debra Di Giaro and two State agency 10 reviewers, contends that the ALJ’s mental nonseverity finding lacks the support of substantial 11 evidence. 12 The ALJ did afford significant weight to the opinion of Dr. Di Giaro who reported that 13 Claimant denied any previous psychiatric hospitalizations, outpatient mental health treatment, 14 or psychotherapy. (AR 26.) She also denied any history of suicide attempts, major depression, 15 psychosis, schizophrenia, bipolar disorder, OCD, or PTSD. (AR 26.) Dr. Di Giaro diagnosed 16 adjustment disorder with mixed anxiety and depressed mood. (AR 26.) Dr. Di Giaro opined 17 that the Claimant’s ability to work in the workplace was essentially intact, with only mild 18 impairments in maintaining regular attendance and completing a normal workweek without 19 interruptions from a psychiatric standpoint. (AR 26, 357-358.) Dr. Di Giaro also opined that 20 Claimant’s ability to deal with stress in the workplace is moderately impaired. (AR 358.) 21 State agency reviewers Dr. Kim Morris and Dr. William Meneese opined Claimant had 22 moderate limitations in ability to maintain concentration, persistence or pace, understand and 23 remember detailed instructions, complete a workweek, or respond appropriately to changes in 24 the workplace. (AR 27, 70, 71, 89, 90.) The ALJ gave only some weight to the opinions of Dr. 25 Morris and Dr. Meneese. (AR 27.) 26 Plaintiff contends that the moderate limitations assessed by Dr. Di Giaro, Dr. Morris, and 27 Dr. Meneese cannot be viewed as nonsevere. Plaintiff further notes that the ALJ did not 28 mention Dr. Di Giaro’s assessment of moderate limitations in Claimant’s ability to deal with 8 1 stress in the workplace. (AR 358.) Although true, the ALJ made clear that she was rejecting all 2 assessments of moderate limitations based on contradicting evidence and she gave specific, 3 legitimate reasons for rejecting such limitations. The ALJ specifically noted that the medical 4 evidence is devoid of any mental health treatment or psychiatric hospitalizations, and Claimant 5 is receiving no mental health treatment or psychotherapy. (AR 22, 26.) Thus, the ALJ found 6 that Claimant’s medically determinable mental health impairments “to be only mild in severity.” 7 (AR 22.) The ALJ specifically found Claimant had no restrictions in daily activities or in social 8 functioning, and only had mild difficulties in regard to persistence, concentration and pace. (AR 9 23.) She further found that the brief references to mild depression and anxiety in the record 10 are not enough to establish a severe impairment. (AR 27.) Mild limitations generally are 11 considered nonsevere. See 20 C.F.R. § 404.1520a(d)(1). 12 The ALJ provided sound reasons for rejecting the moderate limitations assessed by Dr. 13 Di Giaro, Dr. Morris, and Dr. Meneese. The ALJ made an adverse credibility finding (AR 25, 14 27) that Plaintiff does not contest. As there has not been any mental health treatment or 15 records (AR 26), the opining medical sources were dependent on Plaintiff for their opinions. 16 Medical source opinions based on the subjective complaints of a claimant whose credibility has 17 been discounted can be properly disregarded. Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th 18 Cir. 2001). 19 More specifically, the ALJ repeatedly noted Plaintiff’s lack of mental health treatment. 20 (AR 22, 26, 27, 28.) Conservative treatment is a valid basis for discounting credibility. 21 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). Additionally, the ALJ found that 22 Claimant’s daily activities are inconsistent with disabling limitations, which is a legitimate 23 consideration in evaluating credibility. Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 24 1991). The ALJ identified a long list of activities, including chores, cooking, exercising, and 25 shopping. (AR 28, 26.) Medication resulted in significant improvement in Plaintiff’s functional 26 ability to do these activities. (AR 26, 28.) Impairments that can be controlled effectively with 27 medication are not disabling. Warre v. Comm’r of Soc. Sec., 439 F.3d 1001, 1006 (9th Cir. 28 2006). The ALJ concluded that Plaintiff’s daily activities “reveal a claimant who is not 9 1 constantly experiencing pain, depression or anxiety” and are further proof that she is capable of 2 performing past relevant work. (AR 28.) An ALJ may reject a physician’s opinion that is 3 contradicted by the claimant’s own admitted or observed abilities. Bayliss, 427 F.3d at 1216. Thus, the ALJ rejected the moderate limitations assessed by Dr. Di Giaro, Dr. Morris, 4 5 and Dr. Meneese for specific, legitimate reasons supported by substantial evidence. Plaintiff 6 does not address any of the reasons presented by the ALJ for rejecting the moderate 7 limitations assessed by Dr. Di Giaro, Dr. Morris, and Dr. Meneese. Plaintiff disagrees with the ALJ’s nonseverity determination, but it is the ALJ who has the 8 9 responsibility to resolve ambiguities in the record. Andrews, 53 F.3d at 1039. W here the ALJ’s 10 interpretation of the record evidence is reasonable, as it is here, it should not be second11 guessed. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). The ALJ’s nonseverity determination in regard to Plaintiff’s mental impairments is 12 13 supported by substantial evidence. The ALJ’s RFC is supported by substantial evidence. 14 II. 15 16 17 18 19 20 21 22 23 24 25 26 27 THE ALJ PROPERLY DETERMINED PLAINTIFF COULD PERFORM HER PAST RELEVANT WORK Plaintiff contends that the ALJ erred in finding that Plaintiff is able to perform her prior relevant work (“PRW”) as an eligibility worker. The Court disagrees. A. Relevant Federal Law A claimant has the burden of proving that he or she no longer can perform past relevant work. Pinto, 249 F.3d at 844. The ALJ, however, has a duty to make requisite factual findings to support his conclusion on PRW . Id. This is done by examining a claimant’s RFC and the physical and mental demands of the claimant’s PRW. Id. at 844-45. Social Security regulations advise the ALJ to consider first whether the individual still can do PRW as he or she actually performed it because individual jobs within a category may not entail all of the requirements of a job in that category as set forth in DOT. SSR 96-8p; Pinto, 249 F.3d at 845. The claimant is an important source of information about PRW. SSR 82-41; Pinto, id. Other sources of information that may be consulted include VE testimony and the Dictionary of Occupational Titles (“DOT”). 20 C.F.R. §§ 1560(b)(2) and 416.960(b)(2); SSR 82-61. 28 10 1 The ALJ then can proceed to determine whether a claimant can perform his or her PRW 2 as generally performed. Id. Typically, the best source of how a job is generally performed in 3 the national economy is the DOT. Id. The DOT raises a presumption as to job classification 4 requirements. Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995). An ALJ m ay accept 5 vocational expert testimony that varies from the DOT, but the record must contain “persuasive 6 evidence to support the deviation.” Id. at 846 (quoting Johnson, 60 F.3d at 1435). The ALJ 7 has an affirmative responsibility to ask whether a conflict exists between a VE’s testimony and 8 the DOT. SSR 00-4p; Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007). If there is a 9 conflict, the ALJ must obtain a reasonable explanation for the conflict and then must decide 10 whether to rely on the VE or DOT. Id.; Massachi, 486 F.3d at 1153. Failure to do so, how ever, 11 can be harmless error where there is no conflict or the VE provides sufficient support to justify 12 variation from DOT. Id. at 1154 n.19. 13 B. Analysis 14 The ALJ assessed Plaintiff with a light work RFC restricted to “occasional overhead 15 reaching bilaterally.” (AR 23-24.) The ALJ posed a hypothetical question to the VE containing 16 all of the limitations in the ALJ’s RFC, including the overhead reaching limitation. (AR 49.) The 17 VE testified that with the ALJ’s RFC Plaintiff could perform her past relevant work as an 18 eligibility worker as described in DOT code 195.267-010. (AR 48-49.) The ALJ then asked the 19 VE whether his opinion is based on the DOT and he answered in the affirmative. (AR 49.) The 20 ALJ concluded that Plaintiff could perform her past relevant work as an eligibility worker as 21 actually and generally performed. (AR 28.) The ALJ also concluded that the VE’s testimony 22 was consistent with the DOT. (AR 28.) Plaintiff contends that the DOT requirement of “frequent 23 reaching” conflicts with ALJ’s RFC limitation of “occasional overhead reaching bilaterally.” (AR 24 23-24.) Thus, Plaintiff argues that the VE’s testimony and the ALJ’s PRW finding are 25 inconsistent with the DOT, and that the VE and ALJ failed to explain that conflict. The Court 26 disagrees. 27 There is no conflict between the ALJ’s RFC limitation of “occasional overhead reaching 28 bilaterally” and the DOT requirement of “frequent reaching.” The DOT does not define 11 1 “reaching,” but the Commissioner has described reaching as “extending the hands and arms in 2 any direction.” SSR 85-15, at *7 (1985 W L 56857); see also Revised Handbook For Analyzing 3 Jobs, Ex.1 at 12-6. Case law has established that the DOT’s “reaching” limitation includes 4 above the shoulder reaching. Newman v. Astrue, 2012 WL 1884892, at *5 (C.D. Cal. May 23, 5 2012); Hernandez v. Astrue, 2011 WL 223595, at *3 (C.D. Cal. Jan. 21, 2011); Mkhitaryan v. 6 Astrue, 2010 WL 1752162, at *3 (C.D. Cal. Apr. 27, 2010). The reaching limitation, however, is 7 generic and would include reaching downward, outward, and at and below shoulder level, as 8 well as above the shoulder reaching, which is but a subset of all reaching. Reaching need not 9 always include overhead reaching nor does it preclude overhead reaching less than frequent. 10 See Philpott v. Colvin, 2015 WL 4077307, at *7 (C.D. Cal. Jul. 6, 2015); Cortez v. Colvin, 2014 11 WL 1725796, at *9-10 (C.D. Cal. Apr. 30, 2014). T hus, the Court rejects Plaintiff’s assertion 12 that the DOT requires frequent overhead reaching for the eligibility worker position. 13 The DOT job description, moreover, does not reveal any conflict between a frequent 14 reaching requirement and a limitation to no more than occasional overhead reaching: 15 Interviews applicants or recipients to determine eligibility for public assistance: 16 Interprets and explains rules and regulations governing eligibility and grants, 17 methods of payment, and legal rights to applicant or recipient. Records and 18 evaluates personal and financial data obtained from applicant or recipient to 19 determine initial or continuing eligibility, according to departmental directives. 20 Initiates procedures to grant, modify, deny, or terminate eligibility and grants for 21 various aid programs, such as public welfare, employment, and medical 22 assistance. Authorizes amount of grants, based on determination of eligibility 23 for amount of money payments, food stamps, medical care, or other general 24 assistance. Identifies need for social services, and makes referrals to various 25 agencies and community resources available. Prepares regular and special 26 reports as required, and submits individual recommendations for consideration 27 by supervisor. Prepares and keeps records of assigned cases. 28 12 1 DOT 195.267-010. These tasks do not indicate any overhead work is required. Plaintiff’s own 2 descriptions of this job indicate no frequent overhead reaching is required for the eligibility 3 worker job. Indeed, she did not specify any tasks that required overhead reaching. Her work 4 history reports indicate reaching in all directions was required only fifteen minutes a day or at 5 most two hours a day. (AR 198, 207, 219.) Thus, all reaching required is only occasional at 6 most, and any overhead reaching only a subset of the reaching actually required. Thus, 7 Plaintiff’s own experience demonstrates that eligibility worker jobs need not always require 8 more than occasional overhead reaching. As noted in Strain v. Colvin, 2014 WL 2472312, at *2 (C.D. Cal. Jun. 2, 2014), while the 9 10 DOT recognizes that reaching is required, a reasonable person would conclude, once 11 reviewing the job descriptions, that the job would not require constant or frequent overhead 12 reaching. Indeed, many DOT job descriptions specifically indicate when overhead work is 13 involved. See Gonzalez v. Colvin, 2013 WL 3199656, at *3-4 (D. Ore. Jun. 19, 2013) (giving 14 numerous examples of DOT job descriptions making clear overhead reaching is required). To 15 find a conflict, this Court would have to read a requirement into the DOT that is not there. Id. at 16 *4. As the DOT does not discuss overhead reaching, there is no conflict between the DOT and 17 the ALJ’s RFC limitation. Strain, 2014 WL 2472312, at *2 (C.D. Cal. Jun. 2, 2014). T he ALJ 18 correctly relied on the testimony of the VE who is knowledgeable about job requirements and 1 19 who testified that he relied on the DOT. Id. The VE’s testimony is substantial evidence. A 20 VE’s recognized expertise provides the necessary foundation for his or her testimony. Bayliss, 21 427 F.3d at 1218. No additional foundation is required. Id. Two other reasons weigh against Plaintiff’s contention. First, at the hearing, Plaintiff’s 22 23 counsel never pursued the issue with the VE or asked the VE about any potential conflict 24 between the RFC limitation to only occasional overhead reaching bilaterally with the DOT 25 26 27 28 1 Plaintiff’s reliance on Rivers v. Colvin, 2014 WL 3845096, at *2 (C.D. Cal. Aug. 4, 2014) is misplaced. In Rivers, the ALJ never inquired of the VE whether there was a conflict between the DOT and the ALJ’s RFC, unlike here. Additionally, Rivers is at odds with Gonzalez, Strain, Philpott, and Cortez, supra. The Court declines to follow Rivers. 13 1 requirement for the eligibility worker job of frequent reaching. Numerous cases have held that 2 the ALJ is entitled to rely on the VE’s uncontradicted opinion in such circum stances. Cortez v. 3 Colvin, 2014 WL 1725796, at *9 (C.D. Cal. Apr. 30, 2014); Carillo v. Astrue, 2012 WL 4107824, 4 at *5-6 (C.D. Cal. Sep. 18, 2012); Solorzano v. Astrue, 2012 WL 84527, at *6 (C.D. Cal. Jan. 5 10, 2012). Second, we must remember that at step four of the sequential process Plaintiff has 6 the burden to prove that she is unable to perform her past relevant work. Pinto, 249 F.3d at 7 844. Plaintiff has not met that burden here. The ALJ’s step four determination that Plaintiff can perform her past relevant work as an 8 2 9 eligibility worker as generally performed is supported by substantial evidence. There is no 10 conflict between the DOT requirement of frequent reaching for that job and the ALJ’s RFC 11 limitation of occasional overhead reaching bilaterally. *** 12 The ALJ’s nondisability determination is supported by substantial evidence and free of 13 14 legal error. 15 ORDER 16 IT IS HEREBY ORDERED that Judgment be entered affirming the decision of the 17 Commissioner of Social Security and dismissing this case with prejudice. 18 19 DATED: December 10, 2015 20 /s/ John E. McDermott JOHN E. MCDERMOTT UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 2 26 27 28 The Commissioner concedes there is a conflict between Plaintiff’s description of the eligibility worker position as actually performed and the ALJ’s RFC regarding fingering. The ALJ’s error is harmless because the ALJ correctly found that Plaintiff could perform this position as generally performed. Carmickle v. Comm’r Soc. Sec. Adm., 533 F.3d 1155, 1162-63 (9th Cir. 2008) (“the relevant inquiry . . . is whether the ALJ’s decision remains legally valid, despite [any] error”). 14

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