Martha Terrazas v. Michael J Astrue, No. 5:2012cv00323 - Document 18 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Ralph Zarefsky. (See document for details). (ib)
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O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MARTHA TERRAZAS, 12 13 14 15 16 Plaintiff, vs. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) CASE NO. ED CV 12-00323 RZ MEMORANDUM OPINION AND ORDER 17 Plaintiff Martha Terrazas presents a single argument why the Commissioner 18 was wrong in finding that she is not entitled to receive Supplemental Security Income. She 19 asserts that the Commissioner s decision rested on the testimony of the vocational expert, 20 who deviated from the DICTIONARY OF OCCUPATIONAL TITLES without explaining why. 21 The Court does not agree with Plaintiff s argument. 22 The Commissioner s delegate, the Administrative Law Judge, found that 23 Plaintiff had a major depressive disorder [AR 15], but nevertheless retained the residual 24 functional capacity to work at all exertional levels, so long as the work was limited to 25 simple, repetitive tasks. [AR 18] Relying on the testimony of the vocational expert [AR 26 21, 80-81], the Administrative Law Judge then found that Plaintiff could perform any of 27 three jobs a bagger, a bottling line attendant, or a basket filler each of which existed 28 /// /// 27 28 -2- work history automatically would be disabled. This is not the law. 26 DICTIONARY. 17 illiteracy automatically translated into disability, then even illiterate persons who had a the vocational expert s testimony was consistent with the information contained in the 16 25 English. In accordance with this fact, the Administrative Law Judge specifically found that 15 claimant is not per se disabled if he or she is illiterate. 249 F.3d at 847. Indeed, if descriptions of any of the three jobs that requires greater than a minimal familiarity with 14 24 had no communication skills whatsoever. Moreover, there is nothing in the DOT 13 Pinto v. Massanari, 249 F.3d 840 (9th Cir. 2001), the Ninth Circuit acknowledged that [a] considered as illiterate in English; the Administrative Law Judge did not find that Plaintiff 12 23 ability to communicate in English was tethered to the finding that Plaintiff was to be 11 not predominantly English-speaking nevertheless sometimes are employable. Even in in the same way as an individual who is illiterate in English (20 CFR 416.964). Thus, the 10 22 Judge found that [t]he claimant is not able to communicate in English, and is considered 9 able to have some literacy. Yet the cases recognize the modern reality that people who are Law Judge s finding was more specific than what Plaintiff says; the Administrative Law 8 21 to do some reading and writing in English. To begin with, however, the Administrative 7 argument, a person with an English level of 1" according to the DICTIONARY has to be though requiring the lowest level of English competence, nevertheless requires the ability 6 20 inconsistent with the DICTIONARY; Plaintiff says that each of the identified jobs, even 5 automatically would be disabled if he or she had a disability. This is because, by Plaintiff s that she could not communicate in English, the vocational expert s testimony was 4 19 In this Court, Plaintiff says that, because the Administrative Law Judge found 3 Plaintiff s argument would mean that a person who is illiterate in English concluded, Plaintiff was not under a disability and not entitled to receive benefits. [Id.] 2 18 in sufficient numbers in the economy. [AR 21] Therefore, the Administrative Law Judge 1 While illiteracy or the inability to communicate in English Thus, Social Security regulations provide: working with things (rather than with data or people) and in these work functions at the unskilled level, literacy or ability to communicate in English has the least significance. 5 6 7 8 20 C.F.R. Part 404, Subpart P. App. 2 at ยง 200.00(i). The regulations thus contemplate that primary work functions in the bulk of unskilled work relate to 4 Judge talked to the Plaintiff in English before swearing in the interpreter. [AR 66] Plaintiff is, after all, a naturalized U.S. citizen, who has not lived outside the country since 1969, when she was ten years old [AR 116], and who completed the eleventh grade of high school seven years later [AR 132], obviously therefore in the United States. She has 25 26 27 28 -3- Administrative Law Judge that Plaintiff could speak English, and the Administrative Law 24 81]). This is not a case of unexplained and direct conflict with the DICTIONARY. 20 simply because Plaintiff felt more comfortable that way; the interpreter informed the is someone who simply places plastic bags over household furnishing or other items. [AR 19 23 involved were not those requiring literacy ( this is not a bagger in the supermarket. This 18 Although the administrative hearing was conducted with an interpreter, this was done DICTIONARY, and the expert, in discussing one of the jobs, made clear that the tasks 17 22 found (at Step five) that the vocational expert s conclusion was consistent with the 16 Finally, the decision comports with the reality of Plaintiff s situation. was required of the claimant s prior work. Here, as noted, the Administrative Law Judge 15 21 not explain how his conclusion deviated from the DICTIONARY s finding that basic literacy 14 12 Pinto remanded a step four determination because the vocational expert did that a person be literate in English. 11 13 there may well be jobs, certainly those at an unskilled level, in which it is not so important 10 9 may significantly limit an individual s vocational scope, the 3 2 1 perform the jobs identified by the Administrative Law Judge. 3 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 -4- RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE DATED: November 26, 2012 The decision of the Commissioner is affirmed. English. [AR 130] The record contains substantial evidence that this kind of person could 2 4 acknowledged that she can read and understand English and write more than her name in 1
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