Gigi Marie Perry v. Nancy A. Berryhill, No. 2:2018cv01441 - Document 21 (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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Gigi Marie Perry v. Nancy A. Berryhill Doc. 21 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION 11 12 13 14 15 16 17 18 GIGI MARIE PERRY, ) ) Plaintiff, ) ) v. ) ) NANCY A. BERRYHILL, ) Acting Commissioner of the ) Social Security Administration,) ) Defendant. ) ) Case No. CV 18-01441-AS MEMORANDUM OPINION 19 20 PROCEEDINGS 21 22 On February 21, 2018, Plaintiff filed a Complaint seeking review of 23 the denial of her application for Supplemental Security Income. (Docket 24 Entry No. 1). The parties have consented to proceed before the 25 undersigned United States Magistrate Judge. (Docket Entry Nos. 11-12). 26 On July 18, 2018, Defendant filed an Answer along with the 27 Administrative Record (“AR”). (Docket Entry Nos. 15-16). On October 2, 28 2018, the parties filed a Joint Stipulation (“Joint Stip.”) setting Dockets.Justia.com 1 forth their respective positions regarding Plaintiff’s claims. (Docket 2 Entry No. 19). 3 4 The Court has taken this matter under submission without oral 5 argument. See C.D. Cal. L.R. 7-15. 6 7 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 8 9 On June 12, 2014, Plaintiff, formerly employed as a data entry 10 clerk, an in-home support services provider, and in the student support 11 services department at Santa Monica College (see AR 40-44, 177), filed 12 an application for Supplemental Security Income alleging a disability 13 since January 1, 2011. (See AR 20, 146-54). On September 16, 2016, the 14 Administrative Law Judge (“ALJ”), Robin Rosenbluth, heard testimony from 15 Plaintiff (represented by counsel) and vocational expert Carmen Roman. 16 (See AR 38-71). On November 30, 2016, the ALJ issued a decision denying 17 Plaintiff’s application. (See AR 20-32). After determining that 18 Plaintiff had severe impairments –- ”bilateral carpal tunnel syndrome, 19 left shoulder strain and bursitis, tendonitis, and chronic obstructive 20 pulmonary disease” (AR 22)1 --, but did not have an impairment or 21 combination of impairments that met or medically equaled the severity of 22 one of the listed impairments (AR 24-25), the ALJ found that Plaintiff 23 had the residual functional capacity (“RFC”)2 to perform light work3 with 24 1 The ALJ found that Plaintiff’s other impairments –- 25 hypertension and affective disorder – were non-severe. (AR 22-24). 2 26 A Residual Functional Capacity is what a claimant can still do despite existing exertional and nonexertional limitations. See 20 27 C.F.R. § 416.945(a)(1). 28 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.” (continued...) 2 1 the following limitations: cannot reach overhead with non-dominant left 2 upper extremity, and can occasionally reach in all other directions with 3 left upper extremity; can frequently handle, finger and feel with 4 bilateral upper extremities; can frequently climb ramps and stairs, but 5 cannot climb, ladders, ropes or scaffolds; can frequently balance, can 6 occasionally stoop, kneel, crouch, and crawl; can occasionally push and 7 pull with left upper extremity; cannot have concentrated exposure to 8 dust, fumes or other pulmonary irritants. (AR 25-30). Relying on the 9 vocational expert’s testimony at Step Five, the ALJ found that Plaintiff 10 could perform the following jobs existing in significant numbers in the 11 national economy –- parking lot cashier (Dictionary of Occupational 12 Titles [“DOT”] 211.462-010); labeler (DOT 920.687-126); and information 13 clerk (DOT 237.367-018) (AR 30-31) –- and therefore found that Plaintiff 14 was not disabled within the meaning of the Social Security Act. (AR 15 31). 16 Plaintiff requested that the Appeals Council review the ALJ’s 17 Decision. (See AR 142). The request was denied on December 18, 2017. 18 (See AR 1-5). The ALJ’s Decision then became the final decision of the 19 Commissioner, allowing this Court to review the decision. See 42 U.S.C. 20 §§ 405(g), 1383(c). 21 22 STANDARD OF REVIEW 23 24 This Court reviews the Administration’s decision to determine if 25 it is free of legal error and supported by substantial evidence. 26 27 28 3 (...continued) 20 C.F.R. § 416.967(b). 3 See 1 Brewes v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012). “Substantial 2 evidence” is more than a mere scintilla, but less than a preponderance. 3 Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). To determine 4 whether substantial evidence supports a finding, “a court must consider 5 the record as a whole, weighing both evidence that supports and evidence 6 that detracts from the [Commissioner’s] conclusion.” Aukland v. 7 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (internal quotation 8 omitted). As a result, “[i]f the evidence can support either affirming 9 or reversing the ALJ’s conclusion, [a court] may not substitute [its] 10 judgment for that of the ALJ.” Robbins v. Soc. Sec. Admin., 466 F.3d 11 880, 882 (9th Cir. 2006).4 12 13 PLAINTIFF’S CONTENTION 14 15 Plaintiff solely alleges that the ALJ erred in relying on the 16 vocational expert’s testimony to determine that Plaintiff could perform 17 certain jobs in significant numbers in the national economy. (See Joint 18 Stip. at 4-8, 12-13). 19 // 20 // 21 // 22 23 24 25 26 4 The harmless error rule applies to the review of 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). 27 administrative decisions regarding disability. 28 4 1 DISCUSSION 2 3 After consideration of the record as a whole, the Court finds that 4 the Commissioner’s findings are supported by substantial evidence and 5 are free from legal error. 6 7 A. 8 The ALJ Properly Relied on the Vocational Expert’s Testimony 9 Plaintiff asserts that the ALJ erred in relying on the vocational 10 expert’s testimony to find that Plaintiff could perform the parking lot 11 cashier, labeler and information clerk jobs based on the ALJ’s RFC 12 assessment, specifically, the ALJ’s findings that Plaintiff “cannot 13 reach overhead with her non-dominant left extremity and can only 14 occasionally reach in all other directions with her left upper 15 extremity” (AR 25). Plaintiff claims that the vocational expert’s 16 testimony that Plaintiff could perform those jobs conflicts with the 17 description of those jobs in the DOT regarding the reaching 18 requirements, and that the ALJ was required, but failed, to elicit from 19 the vocational expert a reasonable explanation for the deviation from 20 the DOT. (See Joint Stip. at 4-8, 12-13). Defendant asserts that the 21 ALJ properly relied on the vocational expert’s testimony because the 22 testimony did not conflict with the DOT with respect to the reaching 23 requirements. (See Joint Stip. at 8-12). 24 25 At the administrative hearing, the ALJ asked the vocational expert 26 whether there are any representative light jobs in the national economy 27 that a hypothetical person with Plaintiff’s age, education and work 28 experience –- who, with the same limitations as those found in 5 1 Plaintiff’s RFC, including not reaching overhead with her non-dominant 2 left arm and occasionally reaching in all other directions with her left 3 arm –- can perform. The vocational expert identified the following 4 jobs: parking lot cashier (DOT 211.462-010, light, SVP-2, 300,000 5 nationally), labeler (DOT 920.687-126, light SVP-2, 25,000 nationally), 6 and information clerk (DOT 237.367-018, light SVP-2, 14,000 nationally). 7 (See AR 66-67). The vocational expert testified that her testimony was 8 consistent with the DOT. (AR 68). 9 10 After citing the vocational expert’s testimony (except for a 11 misstatement about the number of parking lot cashier jobs), and after 12 finding that the “vocational expert’s testimony is consistent with the 13 information contained in the Dictionary of Occupational Titles,” the ALJ 14 concluded that, “considering the claimant’s age, education, work 15 experience, and residual functional capacity, the claimant is capable 16 of making a successful adjustment to other work that exists in 17 significant numbers in the national economy.” (See AR 31). 18 19 An ALJ may rely on the DOT and a vocational expert’s testimony to 20 determine whether a claimant, given his or her age, education, work 21 experience and residual functional capacity, “actually can find some 22 work in the national economy.” Zavalin v. Colvin, 778 F.3d 842, 846 23 (9th Cir. 2015); Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 689 24 (9th Cir. 2009); 20 C.F.R. § 416.966(e); 20 C.F.R. § 416.920(g). 25 However, an ALJ may not rely on a vocational expert’s testimony 26 regarding the requirements of a particular job without first inquiring 27 whether the testimony conflicts with the DOT. Massachi v. Astrue, 486 28 F.3d 1149, 1152-53 (9th Cir. 2007)(citing SSR 00-4p). 6 If there is a 1 conflict between the vocational expert’s testimony and the DOT, an ALJ 2 must determine whether there is a reasonable explanation for the 3 deviation. Id.; Zavalin, 778 F.3d at 846 (“When there is an apparent 4 conflict between the vocational expert’s testimony and the DOT -- for 5 example, expert testimony that a claimant can perform an occupation 6 involving DOT requirements that appear to be more than the claimant can 7 handle –- the ALJ is required to reconcile the inconsistency.”; citing 8 Massachi, 486 F.3d at 1153-54); see also Johnson v. Shalala, 60 F.3d 9 1428, 1435 (9th Cir. 1995)(“[A]n ALJ may rely on expert testimony which 10 contradicts the DOT, but only insofar as the record contains persuasive 11 evidence to support the deviation.”). The conflict between the 12 vocational expert’s testimony and the DOT must be “obvious or apparent” 13 –- meaning, “the testimony must be at odds with the [DOT’s] listing of 14 job requirements that are essential, integral, or expected” –- in order 15 to trigger the ALJ’s obligation to inquire further. Gutierrez v. 16 Colvin, 844 F.3d 804, 808)(9th Cir. 2016); Lamear v. Berryhill, 865 F.3d 17 1201, 1205 (9th Cir. 2017); 18 19 The occupations of parking lot cashier and information clerk 20 require frequent reaching, see DOT 211.462-010, 1991 WL 671840; DOT 21 237.367-018, 1991 WL 672187, and the occupation of labeler requires 22 constant reaching, see DOT 920.687-126, 1991 WL 687992. Reaching is 23 defined as “extending the hands and arms in any direction.” SSR 85-15. 24 25 Contrary to Plaintiff’s assertion (see Joint Stip. at 6), there was 26 no obvious conflict between the vocational expert’s testimony and the 27 DOT. The DOT descriptions for each of the three occupations did not 28 include a requirement for using both arms to reach, and “the use of two 7 1 arms is not necessarily required for jobs that require reaching and 2 handling.” Salcido v. Astrue, 2012 WL 2160346, *4 (C.D. Cal. June 13, 3 2012)(citations omitted). Since there was no obvious or apparent 4 conflict between the vocational expert’s testimony and the DOT, the ALJ 5 did not err in relying on the vocational expert’s testimony. See 6 Gutierrez, 844 F.3d at 808 (“Here, the ALJ didn’t err because there was 7 no apparent or obvious conflict between the expert’s testimony that Ms. 8 Gutierrez could perform as a cashier, despite her weight bearing and 9 overhead reaching limitations with her right arm and the [DOT’s] general 10 statement that cashiering requires frequent reaching.”); Butt v. 11 Berryhill, 727 Fed.Appx. 913, 914 (9th Cir. 2018)(“Even if Butt was 12 unable to perform any reaching with her right arm, there is no evidence 13 that her left arm has any limitations with above-shoulder reaching. The 14 vocational expert’s testimony regarding Butt’s ability to perform her 15 past work as a preschool teacher is thus consistent with the DOT.”); but 16 see Lamear, 865 F.3d at 1205 (“[W]e cannot say that, based on common 17 experience, it is likely and foreseeable that an office helper, mail 18 clerk, or parking lot cashier with limitations on his ability to 19 ‘handle, finger and fee with the left hand’ could perform his duties. 20 The DOT’s lengthy descriptions for these jobs strongly suggest that it 21 is likely and foreseeable that using both hands would be necessary to 22 perform ‘essential, integral, or expected’ tasks in an acceptable and 23 official manner.”). 24 // 25 // 26 // 27 28 8 1 ORDER 2 3 For the foregoing reasons, the decision of the Commissioner is 4 AFFIRMED. 5 6 LET JUDGMENT BE ENTERED ACCORDINGLY. 7 8 DATED: November 28, 2018 9 10 11 /s/ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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