Richard Paul Wagner v. Nancy A. Berryhill, No. 2:2017cv05698 - Document 24 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION by Magistrate Judge Alka Sagar. The decision of the Commissioner is AFFIRMED. (See document for complete details) (afe)
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Richard Paul Wagner v. Nancy A. Berryhill Doc. 24 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION 10 11 RICHARD PAUL WAGNER, Case No. CV 17-5698-AS Plaintiff, 12 MEMORANDUM OPINION 13 14 15 v. NANCY A. BERRYHILL, Acting Commissioner Of Social Security, Defendant. 16 17 18 PROCEEDINGS 19 20 On August 1, 2017, Plaintiff filed a Complaint seeking 21 review of the denial of his application for Disability Insurance 22 Benefits (“DIB”). 23 proceed before the undersigned United States Magistrate Judge. 24 (Dkt. Nos. 11, 12). 25 Answer along with the Administrative Record (“AR”). 26 15, 16). 27 (“Joint 28 regarding Plaintiff’s claims. (Dkt. No. 1). The parties have consented to On December 28, 2017, Defendant filed an (Dkt. Nos. On July 18, 2018, the parties filed a Joint Stipulation Stip.”), setting forth their respective positions (Dkt. No. 23). Dockets.Justia.com 1 2 The Court has taken this matter under submission without oral argument. See C.D. Cal. L.R. 7-15. 3 4 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 5 6 On 7 framer, 8 application alleging an inability to work because of a disability 9 since October 9, 2013. November a cook, 4, 2014, and a Plaintiff, painter, (see (AR 172-73). formerly employed AR filed 186), as his a DIB Plaintiff’s application was 10 denied initially on February 17, 2015, (AR 113-16), and upon 11 reconsideration on May 28, 2015. (AR 119-23). 12 2015, an Administrative Law Judge, Lesley Troope (“ALJ”), heard 13 testimony from Plaintiff and a vocational expert, Carmen Roman 14 (“VE”). 15 representative, was advised of his right to representation, and 16 expressly waived that right both verbally and in writing. 17 44-46, 151-53). 18 additional documents, which were added to the record. 19 48). 20 to further develop the evidence in Plaintiff’s case and “possibly 21 send [Plaintiff’s] entire medical record to a psychologist for an 22 opinion.” (AR 41-82). Plaintiff, who On December 22, appeared without a (AR Plaintiff also submitted a substantial amount of (AR 46- At the end of the hearing, the ALJ noted that she was going (AR 79). 23 24 The ALJ issued a decision in Plaintiff’s case on March 3, 25 2016. 26 summarized the developments since the hearing: (AR 17-33). At the beginning of the decision, the ALJ 27 28 2 1 [O]n January 13,2016, I sent medical interrogatories to 2 Dr. 3 expert. . . . 4 interrogatories was received and was added into the 5 record. 6 additional evidence to [Plaintiff] and allowed ten days 7 for comments. 8 the hearing office at which time he was given a compact 9 disc (CD) that contained his entire electronic file 10 including the additional records he submitted at the 11 hearing. 12 on February 8, 2016. 13 request a supplemental hearing, I consider the record 14 fully developed and closed the record. Ashok I. Khushalani, an impartial medical Dr. Khushalani’s response to the medical On January 28, 2016, I proffered the On January 29, 2016, [Plaintiff] came to [Plaintiff’s] proffer response was received Given that [Plaintiff] did not 15 16 (AR 17 sequential 18 disability claim. 17). The ALJ process then to proceeded evaluate to apply Plaintiff’s case the and five-step deny his has not (AR 19-33). 19 20 At step one, the ALJ determined that Plaintiff 21 engaged in substantial gainful activity since October 9, 2013, 22 the alleged onset date. 23 that 24 chondromalacia of the right knee; degenerative disc disease of 25 the 26 hernia, 27 with psychotic features; schizophrenia; and post-traumatic stress Plaintiff cervical and has lumbar status-post (AR 19). the following spine; hernia At step two, the ALJ found obesity; surgery; 28 3 major severe history impairments: of depressive umbilical disorder 1 disorder (PTSD).1 2 Plaintiff’s impairments do not meet or equal a listing found in 3 20 C.F.R. Part 404, Subpart P, Appendix 1. 4 proceeding to step four, the ALJ found that Plaintiff has the 5 Residual Functional Capacity (“RFC”)2 to perform light work3 with 6 the following limitations: (Id.). At step three, the ALJ found that (AR 20). Before 7 8 [Plaintiff] 9 occasionally and 10 pounds frequently; he can stand 10 and/or walk for six hours in an eight-hour workday with 11 regular breaks; he can sit for six hours in an eight- 12 hour workday with regular breaks; he can perform all 13 postural 14 remember and carryout simple, routine and repetitive 15 work instructions; he should work with things rather 16 than 17 judgements typical of unskilled work; he can perform 18 work involving occasional and predictable work changes 19 gradually 20 concentration can lift activities with people; occasionally; he introduced; and/or and/or can he make can pace, carry he 20 can simple understand, work-related maintain generally, pounds for attention, two hours 21 1 22 23 The ALJ found Plaintiff’s history of shingles and remote history of seizure disorder and headaches to be non-severe. (AR 20). 2 24 25 26 27 A Residual Functional Capacity is what a claimant can still do despite existing exertional and non-exertional limitations. See 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). 3 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. § 404.1567(b). 28 4 1 increments in the performance of simple, routine and 2 repetitive 3 interaction with general public due to distractibility; 4 he is limited to occasional, brief, superficial and 5 task 6 coworkers 7 occasional, 8 interactions with supervisors. work oriented at instructions; interactions any one brief, he should with no more and he is time; superficial and have no than 1-3 limited to task oriented 9 10 (AR 23). 11 perform any past relevant work. 12 testimony at step five, the ALJ found that Plaintiff, with his 13 age (forty-four on the alleged disability onset date), “limited 14 education,” work experience, and RFC, can perform the following 15 representative 16 national 17 Titles (“DOT”) 302.685-010), ticket marker (DOT 209.587-034), and 18 garment sorter (DOT 222.687-014). 19 ALJ concluded that Plaintiff had not been under a disability, as 20 defined in the Social Security Act, from October 9, 2013, through 21 the date of the decision. At step four, the ALJ noted that Plaintiff is unable to jobs economy: existing laundry (AR 30). in worker Relying on the VE’s significant numbers (Dictionary of (AR 30-32). in the Occupational Accordingly, the (AR 32). 22 23 Plaintiff requested that the Appeals 24 ALJ’s decision on March 18, 2016. 25 uncle, 26 submitted a brief on Plaintiff’s behalf. 27 30, 28 review. Bert 2017, Wagner, the as Appeals (AR 1). his (AR 13). non-attorney Council Council denied review the He appointed his representative, (AR 160-64). Plaintiff’s who On May request for Plaintiff now seeks judicial review of the 5 1 ALJ’s 2 Commissioner. decision, which stands as the final decision of the decision to supported by See 42 U.S.C. § 405(g). 3 4 STANDARD OF REVIEW 5 6 This 7 determine 8 substantial evidence. 9 (9th Cir. 2012). Court if it reviews the is of free Administration’s legal error and See Brewes v. Comm’r, 682 F.3d 1157, 1161 “Substantial evidence” is more than a mere 10 scintilla, but less than a preponderance. 11 759 12 substantial evidence supports a finding, “a court must consider 13 the record as a whole, weighing both evidence that supports and 14 evidence 15 Aukland 16 (internal quotation omitted). 17 can support either affirming or reversing the ALJ’s conclusion, 18 [a court] may not substitute [its] judgment for that of the ALJ.” 19 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). F.3d 995, that v. 1009 (9th detracts Massanari, Cir. from 257 2014). the F.3d Garrison v. Colvin, To determine [Commissioner’s] 1033, 1035 whether conclusion.” (9th Cir. 2001) As a result, “[i]f the evidence 20 21 PLAINTIFF’S CONTENTIONS 22 23 Plaintiff asserts two claims on appeal to this Court. (See 24 Joint Stip. at 5-26). 25 relying on the VE’s testimony that he can perform jobs existing 26 in substantial numbers in the national economy because those jobs 27 conflict with the RFC finding limiting him to “occasional, brief 28 superficial and First, he contends that the ALJ erred in task-oriented interactions 6 with supervisors.” 1 (Id. at 5-8, 11-13). 2 properly develop the record with respect to the education and 3 social/adaptive abilities required to perform these jobs. 4 at 13-19, 24-26). Second, he argues that the ALJ failed to (Id. 5 6 DISCUSSION 7 8 After considering the record as a whole, the Court finds 9 that the Commissioner’s findings are supported by substantial 10 evidence and are free from material legal error.4 11 12 A. The ALJ Did Not Err in Relying on the VE’s Testimony 13 14 Plaintiff contends that the ALJ erred in relying on the VE’s 15 testimony at step five to find that Plaintiff can work as a 16 laundry worker, a ticket marker, or a garment sorter. 17 Stip. at 5-8). 18 with the ALJ’s RFC finding limiting him “to occasional, brief, 19 superficial 20 (Id.). 21 precludes any basic work activity. 22 regulations, which provide that basic work activities include the 23 ability to respond appropriately to supervision, coworkers, and and (Joint Plaintiff asserts that this finding conflicts task Plaintiff oriented contends interactions that this with supervisors.” limitation actually He points to the agency’s 24 4 25 26 27 The harmless error rule applies to the review of administrative decisions regarding disability. See McLeod v. Astrue, 640 F.3d 881, 886–88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (an ALJ’s decision will not be reversed for errors that are harmless). 28 7 1 usual work situations, and impairments that limit this ability 2 “may reduce [a claimant’s] ability to do past work and other 3 work.” 4 416.945(e))). 5 agency’s Program Operations Manual System (“POMS”) stating that 6 the ability to “accept instructions and respond appropriately to 7 criticism from supervisors” is critical for performing unskilled 8 work. (Id. at 6 (citing and quoting 20 C.F.R. §§ 416.922(b)(5), Plaintiff also points to provisions of the (Id. at 6-7 (quoting POMS DI 25020.010 ¶ B.3.k)). 9 10 Plaintiff argues that the ALJ failed to discuss or 11 explicitly 12 appropriately to supervisors other than in brief exchanges of 13 information or handing off products. 14 contends, moreover, that even under a “general understanding” of 15 occupations, it is apparent that the ability to engage in more 16 than 17 performing 18 Plaintiff 19 particularly 20 education, and emotional state at the hearing rendered him unable 21 to address the conflict. find superficial whether contact substantial suggests, Plaintiff with because his able is activity. that lack to (Id. at 7). supervisors gainful finally, is remand of Plaintiff essential (Id. is respond at 7-8). warranted representation, to here limited (Id. at 13). 22 23 The ALJ bears the burden at step five to establish that work 24 exists 25 Plaintiff can perform. 26 Cir. 2012). 27 relies] 28 publication, the SCO) for information about the requirements of in significant numbers in the national economy that Beltran v. Astrue, 700 F.3d 386, 389 (9th “In making disability determinations, [the Agency primarily on the DOT 8 (including its companion 1 work in the national economy.” 2 also relies on VEs at step five “to resolve complex vocational 3 issues.” 4 a claimant’s ability to work, the ALJ poses a hypothetical to the 5 VE 6 limitations, both physical and mental” supported by substantial 7 evidence in the record. 8 (9th Cir. 2002) (quoting Flores v. Shalala, 49 F.3d 562, 570–71 9 (9th Cir. 1995). that Id. SSR 00-4p, at *2. The Agency When soliciting the VE’s opinion regarding whether must include “all of the claimant’s functional Thomas v. Barnhart, 278 F.3d 947, 956 If the VE’s testimony conflicts with the DOT, 10 the ALJ must obtain a reasonable explanation for the conflict. 11 SSR 00–4p, at *2; Massachi v. Astrue, 486 F.3d 1149, 1152 (9th 12 Cir. 2007). 13 the necessary foundation for his or her testimony. 14 additional foundation is required.” 15 1040, 1051 (9th Cir. 2017) (quoting Bayliss v. Barnhart, 427 F.3d 16 1211, 1218 (9th Cir. 2005). Otherwise, “[a] VE’s recognized expertise provides Thus, no Buck v. Berryhill, 869 F.3d 17 18 Here, the ALJ appropriately relied on the VE’s hearing 19 testimony to find that Plaintiff was capable of performing jobs 20 that exist in substantial numbers in the national economy. 21 ALJ did so after posing a hypothetical to the VE that contained 22 all of Plaintiff’s limitations, supported by substantial evidence 23 in the record. 24 v. Bowen, 881 F.2d 747, 756–57 (9th Cir. 1989) (ALJ's reliance on 25 VE 26 Plaintiff’s limitations that were found credible and supported in 27 record). 28 superficial, testimony The See Bayliss, 427 F.3d at 1218) (citing Magallanes was This and proper included where the task-oriented hypothetical limitation to interactions 9 contained “occasional with all brief, supervisors.” 1 (AR 76). 2 perform the representative jobs of a laundry worker, a ticket 3 marker, and a garment sorter, which exist in substantial numbers 4 in the national economy. The VE opined that a person with these limitations can (AR 77-78). 5 6 Plaintiff has failed to identify any conflict between the 7 VE’s testimony and the DOT. 8 opinion constituted substantial evidence, which the ALJ properly 9 relied upon in the decision to find Plaintiff not disabled. Absent such a conflict, the VE’s (AR 10 31-32); 11 obligation 12 publications or information. 13 Berryhill, 14 particular, may be “entitled to respect” under Skidmore v. Swift 15 & 16 persuasive 17 Christensen v. Harris Cnty., 529 U.S. 576, 587—88 (2000), but it 18 “is not binding either on the ALJ or on a reviewing court.” 19 Shaibi, 883 F.3d 1102, 1107 (9th Cir. 2017) (citing Lockwood v. 20 Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1073 (9th Cir. 2010)); 21 see also Moore v. Apfel, 216 F.3d 864, 868—69 (9th Cir. 2000) 22 (declining to review allegations of noncompliance with internal 23 agency manual because such a manual “does not carry the force and 24 effect of law.”). Co., see Massachi, to resolve 883 323 486 F.3d U.S. at 1152-54. conflicts 1102, 134 F.3d other ALJ had no vocational See SSR 00-4p, at *2; Shaibi v. 1109 (1944), interpretation with The (9th Cir. the an of to ambiguous 2017). extent it POMS, in provides regulation, a see 25 26 Regardless, Plaintiff has also failed to identify any 27 conflict 28 Plaintiff’s argument, the ALJ’s RFC finding limiting Plaintiff to with POMS or other non-DOT 10 sources. Contrary to 1 only 2 interactions with supervisors,” (AR 23, 76), is not inconsistent 3 with an ability to perform unskilled work. 4 Berryhill, 2018 WL 3126104, at *6 (S.D. Cal. June 26, 2018) 5 (rejecting the argument that the RFC limitation to occasional 6 superficial 7 inconsistent 8 Burtenshaw v. Berryhill, 2018 WL 550590, at *7 (C.D. Cal. Jan. 9 23, 2018) (same); Markell v. Berryhill, 2017 WL 6316825, at *9 “occasional, brief, interactions with an superficial, with co-workers ability to and task-oriented See, e.g., Remer v. and perform supervisors unskilled was work); 10 (N.D. Cal. Dec. 11, 2017) (same). 11 find 12 appropriately to criticism from supervisors, nor did the record 13 compel such a finding. 14 gave great weight to the medical expert, Ashok I. Khushalani, 15 M.D., who reviewed Plaintiff’s records and found him capable of 16 performing “simple tasks with occasional public contact,” and 17 only mildly limited in his ability to “[i]nteract appropriately 18 with supervisor(s).” Plaintiff unable to accept Furthermore, the ALJ did not instructions and respond To the contrary, for example, the ALJ (AR 29, 1246, 1250). 19 20 Accordingly, the ALJ properly relied on the VE’s testimony 21 because the hypotheticals presented to the VE considered all of 22 Plaintiff’s limitations that were supported by the record. 23 Thomas, 278 F.3d at 956 (considering VE testimony reliable if the 24 hypothetical 25 limitations, both physical and mental supported by the record); 26 Bayliss, 427 F.3d 1211, 1218 (9th Cir. 2005) (“A VE’s recognized 27 expertise 28 testimony”). posed provides includes the all necessary 11 of claimant’s foundation for See functional his or her 1 B. The ALJ Did Not Fail to Properly Develop the Record 2 3 In Social Security cases, the ALJ has a special, independent 4 duty to develop the record fully and fairly, and to assure that 5 the claimant’s interests are considered. 6 242 F.3d 1144, 1150 (9th Cir. 2001); Smolen v. Chater, 80 F.3d 7 1273, 1288 (9th Cir. 1996); Brown v. Heckler, 713 F.2d 441, 443 8 (9th Cir. 1983). 9 about facts relevant to her decision. Tonapetyan v. Halter, The ALJ has a basic duty to inform herself Heckler v. Campbell, 461 10 U.S. 458, 471 n.1 (1983) (Brennan, Jr., concurring). 11 claimant is not represented by counsel before the ALJ, it is 12 “incumbent upon the ALJ to scrupulously and conscientiously probe 13 into, 14 Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003). 15 ALJ's duty to develop the record fully is also heightened where 16 the claimant may be mentally ill and thus unable to protect her 17 own interests.” 18 Sullivan, 975 F.2d 558, 562 (9th Cir. 1992)). 19 “[a]mbiguous evidence, or the ALJ's own finding that the record 20 is inadequate to allow for proper evaluation of the evidence, 21 triggers the ALJ's duty to ‘conduct an appropriate inquiry.’” 22 Id. (quoting Smolen, 80 F.3d at 1288). 23 if the plaintiff can demonstrate prejudice or unfairness in the 24 administrative 25 present. inquire of, and explore for all the Where a relevant facts.” “The Tonapetyan, 242 F.3d at 1150 (citing Higbee v. proceeding as a result In such cases, Remand is warranted only of not having counsel Vidal v. Harris, 637 F.2d 710, 713 (9th Cir. 1981). 26 27 28 Plaintiff contends that the VE’s testimony that he can perform the jobs of laundry worker, garment sorter, and ticket 12 1 marker 2 perform those occupations.” 3 the alleged inconsistencies, Plaintiff cites the O*NET database 4 and the Occupational Outlook Handbook (“OOH”). 5 For 6 categorized in O*NET under the occupational group of maids and 7 housekeeping, and O*NET indicates that these workers usually need 8 a high school education; work directly for the public 70% of the 9 time; establish and maintain interpersonal relationships 69% of is “inconsistent example, Plaintiff with adaptive abilities (Joint Stip. at 13). points out that required to To demonstrate (Id. at 14-16). laundry workers are 10 the 11 subordinates 68% of the time. 12 Reports 13 https://www.onetonline.org/link/summary/37-2012.00)). 14 points 15 includes ticket takers. 16 Reports 17 www.onetonline.org/link/summary/43-5081.02)). 18 sorter job, included in the miscellaneous group of “production 19 workers, all other,” Plaintiff cites the OOH, which indicates 20 that 21 education 22 than one month and up to twelve months of combined on-the-job 23 experience and informal training. 24 of 25 Outlook Handbook, Data for Occupations Not Covered in Detail, 26 https://www.bls.gov/ooh/about/data-for-occupations-not-covered- 27 in-detail.htm)). time; and for to 37-2012.00 similar for and - with worker peers, or Maids and for Housekeeping the O*NET Cleaners, Plaintiff category that (Id. at 15-16 (citing O*NET Online, jobs moderate-term Statistics, supervisors, (Id. at 14 (citing O*NET Online, requirements 43-5081.02 production Labor communicate U.S. - Marking typically on-the-job 13 For require a training, https:// the high garment school meaning more (Id. at 14-15 (citing Bureau Department 28 Clerks of Labor, Occupational 1 Plaintiff contends that these requirements listed in O*NET 2 and the OOH conflict with his own limitations, and thus the ALJ 3 had a duty to conduct further inquiry and develop the record. 4 (Id. at 17-19). 5 here due to his mental impairment in addition to his lack of 6 representation. 7 that he was prejudiced because the ALJ left it unclear whether 8 Plaintiff is actually illiterate, and an inability to read would 9 further preclude the occupations at issue. Plaintiff contends that this duty was heightened (Id. at 17-18). Plaintiff additionally asserts (Id. at 17, 24-26). 10 11 Notwithstanding Plaintiff’s contentions, the ALJ satisfied 12 her 13 social/adaptive abilities required to perform the jobs at issue 14 because 15 Plaintiff concedes that the allegedly conflicting requirements 16 are not stated in the DOT. 17 does 18 responsibility 19 Instead, “[a] conflict must exist between the VE’s testimony and 20 the DOT in order to trigger the ALJ's responsibility to resolve 21 the conflict.” 22 2016) (finding that because the DOT was silent on whether the 23 jobs 24 conflict (citing Quechan Indian Tribe v. U.S. Dep’t of Labor, 723 25 F.2d 733, 735 (9th Cir. 1984)). duty the not at develop VE’s create issue to the record testimony a regarding did conflict (Id. at 14, 24). conflict, inquire not the about nor does other education with the or DOT. The DOT’s silence it trigger vocational any sources. Dewey v. Colvin, 650 F. App’x 512, 514 (9th Cir. allowed for a sit/stand option, there is no 26 27 28 The ALJ had no obligation to address the VE’s deviation from other sources such as O*NET or OOH. 14 See Shaibi, 883 F.3d at 1109 1 (“[W]e can find no case, regulation, or statute suggesting that 2 an ALJ must sua sponte take administrative notice of economic 3 data in the CBP or the OOH. 4 to investigate and resolve any apparent conflict between the VE’s 5 testimony and the DOT . . . [b]ut Shaibi cites to no authority 6 suggesting that the same is true for the CBP and OOH.”); Gonzalez 7 v. Berryhill, No. CV 17-5402, 2018 WL 456130, at *3 (C.D. Cal. 8 Jan. 17, 2018) (“an ALJ is under no obligation to consult the OOH 9 or to attempt to reconcile It is true that an ALJ is required conflicts between the OOH and 10 vocational expert testimony”) (citing cases). 11 reasoned, in Shaibi, that “unlike the DOT, which is comprised of 12 self-contained descriptions of the requirements for performance 13 of various jobs, using the job distribution information in the 14 CBP and OOH requires information and inferences not contained in 15 the documents themselves and so not amenable to an ALJ’s sua 16 sponte 17 Commissioner of Social Security has reached a similar conclusion 18 about O*NET. 19 Panel (“OIDAP”), Finding Report: A Review of the National Academy 20 of Sciences Report, A Database for a Changing Economy: Review of 21 the 22 available at http://ssa.gov/oidap/Documents/; see also Dimmett v. 23 Colvin, 816 F.3d 486, 489 (7th Cir. 2016) (noting that the Agency 24 “hasn't endorsed the O*NET and in fact is developing its own 25 parallel 26 Beamesderfer v. Berryhill, 2018 WL 2315956, at *7 (C.D. Cal. May 27 18, 2018) (discussing the OIDAP report). consideration.” Shaibi, 883 F.3d at The Ninth Circuit 1110 n.6. The See Occupational Information Development Advisory Occupational Information classification Network system,” 28 15 (O*NET) (June which is still 28, 2010), pending); 1 Because the VE’s testimony did not conflict with the DOT, 2 the 3 Plaintiff, 4 representative jobs. 5 Plaintiff not 6 inadequate 7 adaptive 8 therefore satisfied her duty to develop the record. 9 242 ALJ appropriately with has or his at on see to Indeed, F.3d that whether perform the testimony perform 486 shown regarding needed VE’s could Massachi, sufficiently 1150. the limitations, ambiguous abilities F.3d relied at the certain 1152-54. record Plaintiff those that was the The jobs. had ALJ Tonapetyan, ALJ further accounted for and mental impairments by 10 Plaintiff’s 11 obtaining additional information after the hearing. 12 she sent interrogatories to a medical expert, and then obtained 13 Plaintiff’s response to the medical expert’s opinion. lack of representation As noted, (AR 17). 14 15 The ALJ also did not err with respect to Plaintiff’s ability 16 to read and write. 17 is 18 Plaintiff “was apparently able to write letters to the hearing 19 office and complete multiple forms such as the Adult Disability 20 Report, Disability Appeal Reports and Function Reports.” 21 (citing AR 184-95, 223-31, 274, 331, 590-93, 666-72)). 22 found 23 (Id.). 24 working for many years in skilled occupations,” including as a 25 “taper/drywall 26 Plaintiff contends that the ALJ “never asked if [he] actually 27 wrote the letters” that are in the record. 28 Regardless, even to the extent that the record may be ambiguous illiterate. “no The ALJ noted Plaintiff’s allegation that he (AR indication 31). that The ALJ someone observed, else however, completed that (Id. The ALJ that form.” In addition, the ALJ noted that Plaintiff “was apparently finisher” and a 16 painter. (AR 30, 31, 73). (Joint Stip. at 17). 1 as to whether Plaintiff actually wrote the letters himself, the 2 ALJ 3 supports the ALJ’s finding “that while [Plaintiff] may possibly 4 be limited in reading and writing, he is not limited to the 5 degree he alleges and is certainly not illiterate.” 6 The 7 Plaintiff has “very, very limited ability to read and write,” and 8 “while not completely illiterate, is very close to that.” 9 74). reasonably ALJ resolved provided this the matter, limitation and to substantial the VE, evidence (AR 31). stating that (AR As noted, the VE testified that Plaintiff could perform 10 certain representative jobs with the provided limitations, (AR 11 77-78), and Plaintiff has not identified any conflict between 12 this testimony and the DOT. 13 the VE’s testimony to find that Plaintiff was not disabled. The ALJ thus appropriately relied on 14 15 Accordingly, Plaintiff has failed to establish that the ALJ 16 did not adequately develop the record, or otherwise erred in 17 relying on the VE’s testimony to conclude that Plaintiff was not 18 disabled. 19 prejudice or unfairness resulting from his lack of representation 20 or mental impairment to warrant remand. Moreover, Plaintiff has 21 22 23 // // 24 25 // 26 27 28 17 failed to demonstrate any 1 ORDER 2 3 4 For the foregoing reasons, the decision of the Commissioner is AFFIRMED. 5 6 LET JUDGMENT BE ENTERED ACCORDINGLY. 7 8 Dated: August 14, 2018. 9 ______________/s/_____________ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18
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