Lance Mitchell Druckerman v. Carolyn W Colvin, No. 5:2013cv01836 - Document 19 (C.D. Cal. 2014)

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. **See Order for details.** (ch)

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Lance Mitchell Druckerman v. Carolyn W Colvin Doc. 19 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 ) ) ) Plaintiff, ) ) v. ) ) ) CAROLYN W. COLVIN, Acting Commissioner of Social Security, ) ) ) Defendant. ) LANCE MITCHELL DRUCKERMAN, 18 19 Case No. EDCV 13-01836-JEM MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY PROCEEDINGS On October 16, 2013, Lance Mitchell Druckerman ( Plaintiff or Claimant ) filed a 20 complaint seeking review of the decision by the Commissioner of Social Security 21 ( Commissioner ) denying Plaintiff s application for Social Security Disability and 22 Disability Insurance benefits. The Commissioner filed an Answer on February 6, 2014. 23 On July 3, 2014, the parties filed a Joint Stipulation ( JS ). The matter is now ready for 24 decision. 25 Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before this 26 Magistrate Judge. After reviewing the pleadings, transcripts, and administrative record 27 ( AR ), the Court concludes that the Commissioner s decision must be affirmed and this 28 case dismissed with prejudice. Dockets.Justia.com BACKGROUND 1 2 Plaintiff is a 53-year-old male who applied for Social Security Disability and 3 Disability Insurance benefits on March 30, 2009, alleging disability beginning September 4 5, 2008. (AR 114.) The ALJ determined that Plaintiff has not engaged in substantial 5 gainful activity since September 5, 2008, the alleged onset date. (AR 116, 150.) 6 Plaintiff s claim was denied initially on July 21, 2009. (AR 114.) Plaintiff filed a 7 timely request for hearing, which was held before Administrative Law Judge ( ALJ ) Sally 8 C. Reason, on March 22, 2010, in West Los Angeles, California. (AR 114.) Plaintiff 9 appeared and testified at the hearing and was represented by counsel. (AR 114.) 10 Vocational expert ( VE ) Gregory S. Jones also appeared and testified at the hearing. 11 (AR 114.) 12 The ALJ issued an unfavorable decision on July 21, 2010. (AR 114-134.) Plaintiff 13 requested review of the decision with the Appeals Council. (AR 25-27.) The Appeals 14 Council granted the request for review, found legal error in the ALJ s decision, and 15 vacated and remanded for further administrative proceedings. (AR 141-143.) 16 On January 11, 2012, Plaintiff appeared and testified at a hearing before ALJ Sally 17 C. Reason, in West Los Angeles, California. (AR 148.) Plaintiff was represented by 18 counsel. (AR 148.) Medical expert ( ME ) Glenn E. Griffin, Ph.D., and VE Lynne Tracy, 19 also appeared and testified. (AR 148.) A supplemental hearing took place on March 22, 20 2012, also in West Los Angeles, California. (AR 148.) Plaintiff appeared and testified 21 and was represented by counsel. (AR 148.) VE Gregory Jones also appeared and 22 testified. (AR 148.) 23 The ALJ issued a second unfavorable decision on April 16, 2012. (AR 148-170.) 24 Plaintiff again requested review of the decision with the Appeals Council. (AR 27.) The 25 Appeals Council denied the request for review. (AR 6-12.) DISPUTED ISSUES 26 27 As reflected in the Joint Stipulation, Plaintiff raises the following disputed issues as 28 grounds for reversal and remand: 2 1 1. the past relevant work ( PRW ). 2 3 Whether the ALJ properly determined that Lance Druckerman could perform 2. Whether the ALJ properly considered the testimony of Lance Druckerman. 4 STANDARD OF REVIEW 5 Under 42 U.S.C. § 405(g), this Court reviews the ALJ s decision to determine 6 whether the ALJ s findings are supported by substantial evidence and free of legal error. 7 Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); see also DeLorme v. Sullivan, 8 924 F.2d 841, 846 (9th Cir. 1991) (ALJ s disability determination must be supported by 9 substantial evidence and based on the proper legal standards). 10 Substantial evidence means more than a mere scintilla, but less than a 11 preponderance. Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting 12 Richardson v. Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is such 13 relevant evidence as a reasonable mind might accept as adequate to support a 14 conclusion. Richardson, 402 U.S. at 401 (internal quotation marks and citation 15 omitted). 16 This Court must review the record as a whole and consider adverse as well as 17 supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). 18 Where evidence is susceptible to more than one rational interpretation, the ALJ s 19 decision must be upheld. Morgan v. Comm r of the Soc. Sec. Admin., 169 F.3d 595, 599 20 (9th Cir. 1999). However, a reviewing court must consider the entire record as a whole 21 and may not affirm simply by isolating a specific quantum of supporting evidence. 22 Robbins, 466 F.3d at 882 (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 23 1989)); see also Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 24 25 THE SEQUENTIAL EVALUATION The Social Security Act defines disability as the inability to engage in any 26 substantial gainful activity by reason of any medically determinable physical or mental 27 impairment which can be expected to result in death or . . . can be expected to last for a 28 continuous period of not less than 12 months. 42 U.S.C. §§ 423(d)(1)(A), 3 1 1382c(a)(3)(A). The Commissioner has established a five-step sequential process to 2 determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. 3 The first step is to determine whether the claimant is presently engaging in 4 substantial gainful activity. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). If the 5 claimant is engaging in substantial gainful activity, disability benefits will be denied. 6 Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Second, the ALJ must determine whether 7 the claimant has a severe impairment or combination of impairments. Parra, 481 F.3d at 8 746. An impairment is not severe if it does not significantly limit the claimant s ability to 9 work. Smolen, 80 F.3d at 1290. Third, the ALJ must determine whether the impairment 10 is listed, or equivalent to an impairment listed, in 20 C.F.R. Pt. 404, Subpt. P, Appendix I 11 of the regulations. Parra, 481 F.3d at 746. If the impairment meets or equals one of the 12 listed impairments, the claimant is presumptively disabled. Bowen, 482 U.S. at 141. 13 Fourth, the ALJ must determine whether the impairment prevents the claimant from 14 doing PRW. Pinto v. Massanari, 249 F.3d 840, 844-45 (9th Cir. 2001). Before 15 making the step four determination, the ALJ first must determine the claimant s residual 16 functional capacity ( RFC ). 20 C.F.R. § 416.920(e). The RFC is the most [one] can 17 still do despite [his or her] limitations and represents an assessment based on all the 18 relevant evidence. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The RFC must 19 consider all of the claimant s impairments, including those that are not severe. 20 C.F.R. 20 §§ 416.920(e), 416.945(a)(2); Social Security Ruling ( SSR ) 96-8p. 21 If the claimant cannot perform his or her PRW or has no PRW, the ALJ proceeds 22 to the fifth step and must determine whether the impairment prevents the claimant from 23 performing any other substantial gainful activity. Moore v. Apfel, 216 F.3d 864, 869 (9th 24 Cir. 2000). The claimant bears the burden of proving steps one through four, consistent 25 with the general rule that at all times the burden is on the claimant to establish his or her 26 entitlement to benefits. Parra, 481 F.3d at 746. Once this prima facie case is 27 established by the claimant, the burden shifts to the Commissioner to show that the 28 claimant may perform other gainful activity. Lounsburry v. Barnhart, 468 F.3d 1111, 4 1 1114 (9th Cir. 2006). To support a finding that a claimant is not disabled at step five, the 2 Commissioner must provide evidence demonstrating that other work exists in significant 3 numbers in the national economy that the claimant can do, given his or her RFC, age, 4 education, and work experience. 20 C.F.R. § 416.912(g). If the Commissioner cannot 5 meet this burden, then the claimant is disabled and entitled to benefits. Id. THE ALJ DECISION 6 7 In this case, the ALJ determined at step one of the sequential process that Plaintiff 8 has not engaged in substantial gainful activity since September 5, 2008, the alleged 9 onset date. (AR 116, 150.) 10 At step two, the ALJ determined that Plaintiff has the following medically 11 determinable severe impairments: HIV positive; history of bilateral wrist surgery; left 12 knee surgery; right shoulder surgery; bilateral foot surgery; acid reflux; obesity; and 13 hypertension. (AR 150-156.) 14 At step three, the ALJ determined that Plaintiff does not have an impairment or 15 combination of impairments that meets or medically equals the severity of one of the 16 listed impairments. (AR 156-158.) 17 The ALJ then found that Plaintiff has the RFC to perform light work as defined in 18 20 C.F.R. § 404.1567(b) except he can sustain occasional keyboarding 30 minutes at a 19 time, up to 4 hours in an 8 hour day; he can sustain occasional overhead reaching with 20 the right (dominant) upper extremity; and he can sustain frequent (not constant) fine 21 hand manipulation, bilaterally. (AR 158-169.) In determining this RFC, the ALJ made an 22 adverse credibility determination. (AR 160.) 23 At step four, the ALJ found that Plaintiff is capable of performing his PRW as an 24 office manager as it is generally performed. (AR 169.) 25 Consequently, the ALJ found that Claimant was not disabled, within the meaning 26 of the Social Security Act. (AR 170.) 27 / / / 28 / / / 5 DISCUSSION 1 2 The ALJ properly discounted Plaintiff s credibility in determining Plaintiff s RFC. 3 The ALJ properly found that Plaintiff can perform his PRW as an office manager as it is 4 generally performed. 5 The ALJ s RFC and PRW determinations are supported by substantial evidence. 6 The ALJ s nondisability determination is supported by substantial evidence and free of 7 legal error. 8 I. THE ALJ PROPERLY DISCOUNTED PLAINTIFF S CREDIBILITY 9 The ALJ found that Plaintiff has the medically determinable severe impairments of 10 HIV positive, history of bilateral wrist surgery, left knee surgery, right shoulder surgery, 11 bilateral foot surgery, acid reflux, obesity and hypertension. (AR 150.) Nonetheless, the 12 ALJ found that Plaintiff retained the residual functional capacity to perform a limited 13 range of light work. (AR 158.) Plaintiff does not challenge the ALJ s treatment of the 14 medical evidence but contends that the ALJ improperly discounted Plaintiff s subjective 15 symptom testimony in determining Plaintiff s RFC. The Court disagrees. 16 A Relevant Federal Law 17 The ALJ s RFC is not a medical determination but an administrative finding or 18 legal decision reserved to the Commissioner based on consideration of all the relevant 19 evidence, including medical evidence, lay witnesses, and subjective symptoms. See 20 SSR 96-5p; 20 C.F.R. § 1527(e). In determining a claimant s RFC, an ALJ must 21 consider all relevant evidence in the record, including medical records, lay evidence, and 22 the effects of symptoms, including pain reasonably attributable to the medical condition. 23 Robbins, 446 F.3d at 883. 24 The test for deciding whether to accept a claimant s subjective symptom testimony 25 turns on whether the claimant produces medical evidence of an impairment that 26 reasonably could be expected to produce the pain or other symptoms alleged. Bunnell 27 v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991); see also Reddick, 157 F.3d at 722; 28 Smolen, 80 F.3d at 1281-82 esp. n.2. The Commissioner may not discredit a claimant s 6 1 testimony on the severity of symptoms merely because they are unsupported by 2 objective medical evidence. Reddick, 157 F.3d at 722; Bunnell, 947 F.2d at 343, 345. If 3 the ALJ finds the claimant s pain testimony not credible, the ALJ must specifically make 4 findings which support this conclusion. Bunnell, 947 F.2d at 345. The ALJ must set 5 forth findings sufficiently specific to permit the court to conclude that the ALJ did not 6 arbitrarily discredit claimant s testimony. Thomas v. Barnhart, 278 F.3d at 947, 958 (9th 7 Cir. 2002); see also Rollins v. Massanari, 261 F.3d 853, 856-57 (9th Cir. 2001); Bunnell, 8 947 F.2d at 345-46. Unless there is evidence of malingering, the ALJ can reject the 9 claimant s testimony about the severity of a claimant s symptoms only by offering 10 specific, clear and convincing reasons for doing so. Smolen, 80 F.3d at 1283-84; see 11 also Reddick, 157 F.3d at 722. The ALJ must identify what testimony is not credible and 12 what evidence discredits the testimony. Reddick, 157 F.3d at 722; Smolen, 80 F.3d at 13 1284. 14 B. Analysis 15 In determining Plaintiff s RFC, the ALJ concluded that Claimant s medically 16 determinable impairments reasonably could be expected to cause his alleged 17 symptoms. (AR 160.) The ALJ, however, also found that Plaintiff s statements 18 regarding the intensity, persistence and limiting effects of these symptoms were not 19 credible to the extent inconsistent with the ALJ s RFC. (AR 160.) Because the ALJ did 20 not make a finding of malingering, he was required to provide clear and convincing 21 reasons supported by substantial evidence to discount Plaintiff s credibility. Smolen, 80 22 F.3d at 1283-84. The ALJ did so. 23 First, the ALJ found that there was a lack of sufficient objective medical evidence 24 to support Plaintiff s subjective symptom allegations. (AR 160-169.) An ALJ is entitled 25 to consider whether there is a lack of medical evidence to corroborate a claimant s 26 alleged pain symptoms so long as it is not the only reason for discounting a claimant s 27 credibility. Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005). Here, Plaintiff 28 complained of significant physical pain but there was no objective evidence of any 7 1 musculoskeletal impairment of the spine. (AR 161.) The ALJ also found insufficient 2 objective medical evidence to corroborate continued use of wrist splints or Claimant s 3 use of assistive medical devices. (AR 161.) Plaintiff is HIV positive and claimed that he 4 has AIDS but medical records do not corroborate an AIDS diagnosis. (AR 162.) No 5 treating source has documented Plaintiff s alleged hand tremors. (AR 162.) The ALJ 6 determined Plaintiff had non-severe mental health impairments. (AR 162.) Plaintiff does 7 not address any of these findings except to note the observation of a psychologist of 8 hand tremors. (AR 162, 572.) As stated by the ALJ, however, no treating source 9 documented recurrent neurological manifestations or anything else that would be 10 consistent with hand tremors. (AR 162.) 11 Second, the ALJ made findings that Plaintiff had exaggerated his condition. An 12 ALJ may reject the credibility of a claimant who exaggerates his condition. Thomas, 278 13 F.3d at 954, 960. The ALJ found that Plaintiff told two consultative examiners that he 14 had suffered a heart attack but the treating medical records document treatment for 15 chest pain, not myocardial infarction. (AR 162.) The ALJ treated this as an 16 overcharacterization or exaggeration of his actual condition. (AR 162.) The ALJ also 17 found that Plaintiff overcharacterized his HIV positive status. (AR 162.) He told Dr. 18 Sean To that he had been very sick and was told he had AIDS but in fact he takes no 19 anti-retroviral medications and receives no HIV treatment (AR 158) and medical records 20 do not support an AIDS diagnosis. (AR 162.) Plaintiff does not offer any response to 21 these findings. 22 Plaintiff disputes the ALJ s interpretation of the evidence regarding Plaintiff s 23 credibility but it is the ALJ who is responsible for resolving ambiguities in the record. 24 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Where the ALJ s interpretation 25 of the record is reasonable as it is here, it should not be second-guessed. Rollins, 261 26 F.3d at 857. 27 28 8 The ALJ properly discounted Plaintiff s credibility for clear and convincing reasons 1 2 supported by substantial evidence. The ALJ s RFC is supported by substantial 3 evidence. 4 II. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 THE ALJ S PRW DETERMINATION IS SUPPORTED BY SUBSTANTIAL EVIDENCE Plaintiff contends that the ALJ erred in finding at the fourth step of the sequential process that Plaintiff can perform his PRW as an office manager as that job is generally performed. The Court disagrees. A. Relevant Federal Law A claimant has the burden of proving that he or she no longer can perform PRW. Pinto, 249 F.3d at 844. The ALJ, however, has a duty to make the 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. A claimant must be able to perform: (1) the functional demands and job duties of a particular past relevant job as he or she actually performed it, or (2) the functional demands and job duties of the occupation as generally required by employers throughout the national economy. SSR 82-61; Pinto, 249 F.3d at 845. In making this determination, the ALJ must make the following findings of fact: 1. A finding of fact as to the individual s RFC. 2. A finding of fact as to the physical and mental demands of the 20 21 22 23 24 25 26 past job/occupation. 3. A finding of fact that the individual s RFC would permit a return to his or her past job or occupation. SSR 82-62. Past work experience must be considered carefully to assure that the available facts support a conclusion regarding the claimant s ability or inability to perform the functional activities of past work. Id. The ALJ s decision must be developed and explained fully in the disability decision. Id. 27 28 9 1 Social Security regulations advise the ALJ to consider first whether the individual 2 still can do PRW as he or she actually performed it because individual jobs within a 3 category may not entail all of the requirements of a job in that category set forth in the 4 Dictionary of Occupational Titles ( DOT ). SSR 96-8p; Pinto, 249 F.3d at 845. The 5 claimant is an important source of information about his or her PRW. SSR 82-41; Pinto, 6 id. Other sources of information that may be consulted include VE testimony and the 7 DOT. 20 C.F.R. §§ 404.1560 (b)(2) and 416.960 (b)(2); SSR 82-61. 8 The ALJ then can proceed to determine whether a claimant can perform his or her 9 PRW as generally performed. Id. Typically, the best source of how a job is generally 10 performed in the national economy is the DOT. Id. An ALJ may accept VE testimony 11 that varies from the DOT, but the record must contain persuasive evidence to support 12 the deviation. Id. at 846 (quoting Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 13 1995)). The ALJ has an affirmative responsibility to ask whether a conflict exists 14 between a VE s testimony and the DOT. SSR 00-4p; Massachi v. Astrue, 486 F.3d 15 1149, 1153 (9th Cir. 2007). If there is a conflict, the ALJ must obtain a reasonable 16 explanation for the conflict and then must decide whether to rely on the VE or DOT. Id.; 17 Massachi, 486 F.3d at 1153. Failure to do so, however, can be harmless error where 18 there is no conflict or the VE provides sufficient support to justify variation from DOT. Id. 19 at 1154 n.19. 20 B. Analysis 21 The ALJ assessed Claimant with a light work RFC limited to occasional 22 keyboarding 30 minutes at a time up to 4 hours in an 8 hour day, occasional overhead 23 reaching with the right dominant upper extremity and frequent (not constant) fine hand 24 manipulation bilaterally. (AR 158.) With this RFC, the ALJ determined that Plaintiff 25 could perform his PRW as an office manager as it is generally performed. (AR 169.) 26 The VE testified at the January 11, 2012 hearing that Claimant had PRW as a 27 bookkeeper (DOT 210.382-014) and office manager (DOT 169.167-034). (AR 169.) 28 These were sedentary jobs that required medium exertion as actually performed by 10 1 Claimant. (AR 169.) Thus, the ALJ s light work RFC excluded these jobs as actually 2 performed. The VE further testified that Claimant could not perform the bookkeeper job 3 as generally performed (AR 79) but that he could perform the office manager job as 4 generally performed. (AR 169.) The VE distinguished the two occupations on the basis 5 that the keyboarding required for the office manager position is more sporadic than it is 6 for the bookkeeping job. (AR 79.) The VE s distinction is consistent with the ALJ s RFC 7 limitation to occasional keyboarding. 8 Plaintiff contends that the ALJ s PRW finding is erroneous because the ALJ 9 improperly segregated the Claimant s PRW according to the least demanding work 10 functions. Plaintiff testified that for both the bookkeeping and office manager jobs he 11 was performing tasks required by both jobs. (AR 76.) His PRW was a composite or 12 hybrid job with significant elements of two occupations. Plaintiff contends that the VE 13 improperly excluded from consideration the bookkeeping or total requirements of the 14 office manager job and simply segregated out the least demanding office manager 15 functions. 16 The Court disagrees. Claimant had two different occupational designations, 17 bookkeeper and office manager. The VE testified that the office manager occupation 18 had a wider variety of duties than the bookkeeping job and that, while it required some 19 bookkeeping keyboarding functions, they were more sporadic than with the 20 bookkeeper. (AR 79.) The VE did not exclude bookkeeper keyboarding functions from 21 her assessment of the office manager position nor consider only non-keyboarding office 22 manager duties. The VE did not say Claimant was unable to perform any bookkeeping 23 or keyboarding work. Plaintiff has misframed the issue and would evaluate the office 24 manager position as if it required greater keyboarding functions than the VE testified was 25 true. 26 Plaintiff s case authority is distinguishable. Plaintiff cites Valencia v. Heckler, 751 27 F.2d 1082, 1086 (9th Cir. 1985) but in that case the claimant was an agricultural worker 28 doing medium exertional work but occasionally doing light work sorting tomatoes. The 11 1 ALJ improperly characterized Plaintiff s PRW as light work based on tomato sorting, 2 excluding from consideration other medium level agricultural work required for the job. 3 That mischaracterization did not occur here. As already noted, the VE did not exclude 4 from consideration keyboarding functions that were more sporadic than with the 5 bookkeeper. (AR 79.) Similarly, in Carmickle v. Comm r, Soc. Sec. Adm., 533 F.3d 6 1155, 1166-67 (9th Cir. 2008), the ALJ and VE improperly classified a claimant s PRW 7 as a light work supervisory job even though 80% of the time Claimant was performing 8 medium duty manual labor which was excluded from consideration. Again, the ALJ and 9 VE did not exclude from consideration the more sporadic bookkeeping keyboarding 10 functions of Claimant s office manager job. In Vertigan v. Halter, 260 F.3d 1044, 1051 11 (9th Cir. 2001), the ALJ erroneously characterized a claimant s PRW as a receptionist 12 and cashier even though she had never worked as a cashier and her work as a 13 pharmacy clerk only required cashier work occasionally. Unlike in Vertigan, the ALJ and 14 VE did not parse out or exclude bookkeeping keyboarding functions from Plaintiff s office 15 manager job. 16 Plaintiff s last argument is that the VE s testimony that the office manager s 17 keyboarding functions are more sporadic than a bookkeeper s conflicts with the DOT. 18 The Court disagrees. 19 The DOT provides the following description of the duties of an office manager 20 (169.167-034): 21 Coordinates activities of clerical personnel in establishment or 22 organization: Analyses and organizes office operations and procedures, 23 such as typing, bookkeeping, preparation of payrolls, flow of 24 correspondence, filing, requisition of supplies, and other clerical services. 25 Evaluates office production, revises procedures, or devises new forms to 26 improve efficiency of workflow. Establishes uniform protection, retrieval, 27 transfer, and disposal of records. Plans office layouts and initiates cost 28 reduction programs. Reviews clerical and personnel records to ensure 12 1 completeness, accuracy, and timeliness. Prepares activities reports for 2 guidance of management, using computer. Prepares employee ratings 3 and conducts employee benefit and insurance programs, using computer. 4 Coordinates activities of various clerical departments or workers within 5 department. May prepare organizational budget and monthly financial 6 reports. May hire, train and supervise clerical staff. May compile, store, 7 and retrieve managerial data, using computer. 8 (Emphasis added.) Plaintiff does not explain how the above description conflicts with 9 the VE s testimony or the ALJ s RFC. The VE s testimony that the office manager s 10 keyboarding functions are more sporadic than the bookkeeper s is not inconsistent with 11 the above office manager description. The VE s distinction between the two occupations 12 is supported by a comparison of the DOT job descriptions for both occupations. The 13 bookkeeper occupation characterizes the functions of numerical recording14 recordkeeping and accounting, auditing and bookkeeping services as significant. 15 (DOT 210.382-014.) By comparison, the DOT job description for office manager regards 16 numerical recording-recordkeeping as not significant. (DOT 169.167-034.) The VE s 17 recognized expertise, moreover, provides the necessary foundation for his or her 18 testimony. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). No additional 19 foundation is required. Id. The ALJ reasonably relied on the VE s testimony. 20 Plaintiff also contends that the VE s testimony conflicts with the DOT limitation to 21 frequent fingering for the office manager job. (DOT 169.167-034.) Again, Plaintiff does 22 not explain why the VE s testimony conflicts with the DOT. The ALJ s hypothetical 23 question to the VE includes a limitation to frequent fingering as contained in the DOT. 24 (AR 78.) So does the ALJ s RFC. (AR 158.) The VE testified that with the ALJ s RFC 25 limitations the Claimant could perform the office manager position as generally 26 performed. (AR 79.) The mere fact that the office manager job includes some computer 27 work (keyboarding) is not inconsistent with the RFC limitation to occasional keyboarding 28 up to 4 hours a day. Plaintiff again attempts to equate the keyboarding demands of both 13 1 the office manager and bookkeeping jobs but fingering in the office manager DOT 2 description need not be limited to keyboarding duties. There is nothing inconsistent 3 between a limitation to occasional keyboarding up to 4 hours of keyboarding and two 4 hours of non-keyboarding fingering. Again, the VE s recognized expertise provides the 5 necessary foundation for her testimony. Bayliss, 427 F.3d at 1218. The ALJ reasonably 6 relied on the VE s testimony. 7 The Court observes that the ALJ did not ask the VE if her testimony was 8 consistent with the DOT. The error was harmless, however, because there was no 9 conflict between the VE s testimony and the DOT, Massachi, 468 F.3d at 1154 n.19, and 10 in any event the ALJ found that the VE clarified any distinctions from the DOT by noting 11 that the keyboarding functions of the office manager job were more sporadic than with 12 the bookkeeping occupation. (AR 169.) 13 The ALJ s determination at the fourth step of the sequential process that Plaintiff 14 could perform his PRW as an office manager as generally performed is supported by 15 substantial evidence. *** 16 17 The ALJ s nondisability determination is supported by substantial evidence and 18 free of legal error. ORDER 19 20 IT IS HEREBY ORDERED that Judgment be entered affirming the decision of the 21 Commissioner of Social Security and dismissing this case with prejudice. 22 23 DATED: October 9, 2014 24 /s/ John E. McDermott JOHN E. MCDERMOTT UNITED STATES MAGISTRATE JUDGE 25 26 27 28 14

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