Maria V Caballero v. Carolyn W Colvin, No. 5:2014cv01266 - Document 20 (C.D. Cal. 2015)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Sheri Pym. IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits, and dismissing this action with prejudice. (See document for specifics.) (iva)

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Maria V Caballero v. Carolyn W Colvin Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MARIA CABALLERO, 12 13 14 15 16 17 18 ) ) ) Plaintiff, ) ) v. ) ) ) CAROLYN W. COLVIN, Acting Commissioner of Social Security ) ) Administration, ) ) Defendant. ) ) Case No. ED CV 14-1266-SP MEMORANDUM OPINION AND ORDER 19 I. 20 INTRODUCTION 21 On June 23, 2014, plaintiff Maria Caballero filed a complaint against 22 defendant, the Commissioner of the Social Security Administration 23 (“Commissioner”), seeking a review of a denial of disability insurance benefits 24 (“DIB”) and supplemental security income (“SSI”). Both plaintiff and defendant 25 have consented to proceed for all purposes before the assigned Magistrate Judge 26 pursuant to 28 U.S.C. § 636(c). The court deems the matter suitable for 27 adjudication without oral argument. 28 1 Dockets.Justia.com 1 Plaintiff presents one issue for decision: whether there is a conflict between 2 the testimony of the vocational expert (“VE”) and the Dictionary of Occupational 3 Titles (“DOT”), such that the Administrative Law Judge (“ALJ”) erred at step five 4 in relying on the VE’s testimony. Memorandum in Support of Plaintiff’s 5 Complaint (“P. Mem.”) at 3-7; Memorandum in Support of Defendant’s Answer 6 (“D. Mem.”) at 1-7. 7 Having carefully studied the parties’ moving and opposing papers, the 8 Administrative Record (“AR”), and the decision of the ALJ, the court concludes 9 that, as detailed herein, the ALJ did not err at step five. Consequently, the court 10 affirms the decision of the Commissioner denying benefits. 11 12 13 II. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff, who was forty-four years old on the alleged disability onset date, 14 has a twelfth grade education. AR at 25, 120, 130. Plaintiff has past relevant 15 work experience as a child care attendant, which is considered an unskilled job. 16 Id. at 125, 166, 328-29. 17 On April 28, 2009, plaintiff filed applications for DIB and SSI, alleging that 18 she had been disabled since October 1, 2008 due to a heart attack and injured right 19 ankle. Id. at 112, 116, 124. The Commissioner denied plaintiff’s application 20 initially and upon reconsideration, after which she filed a request for a hearing. Id. 21 at 46-56. Plaintiff, represented by counsel, appeared and testified at a hearing 22 before ALJ Mason D. Harrell Jr. Id. at 21-41. The ALJ denied plaintiff’s claim 23 for benefits on April 13, 2011. Id. at 11-17. 24 Plaintiff filed a complaint in this court. Id. at 366. On May 14, 2013, this 25 court reversed the Commissioner’s decision and remanded the case to the 26 Commissioner with an order to “reconsider plaintiff’s subjective complaints,” 27 appropriately crediting or rejecting them, prior to assessing plaintiff’s residual 28 functional capacity (“RFC”) and determining whether plaintiff can perform her 2 1 past relevant work or perform other jobs that existed in significant numbers in the 2 national economy. Id. at 366-75. 3 The Appeals Council vacated the Commissioner’s decision and remanded 4 the case to an ALJ for another hearing and “any further action needed to complete 5 the administrative record” prior to issuing a new decision. Id. at 383. On 6 September 3, 2013, plaintiff, represented by counsel, appeared before ALJ Joseph 7 D. Schloss. Id. at 337. The ALJ heard testimony from plaintiff and from Dr. 8 Stephen Kaplan, a medical expert. Id. at 338-49. The ALJ continued the hearing 9 to permit plaintiff time to submit additional medical evidence and fully develop 10 the record prior to making a ruling. Id. at 349. 11 On March 10, 2014, plaintiff, represented by the same counsel, appeared at 12 a supplemental hearing and again testified before the ALJ. Id. at 326, 331-34. 13 The ALJ also heard testimony from Luis Mas, a vocational expert. Id. at 327-31. 14 On March 24, 2014, the ALJ denied plaintiff’s claims for benefits. Id. at 306-17. 15 Applying the well-known five-step sequential evaluation process, the ALJ 16 found, at step one, that plaintiff had not engaged in substantial gainful activity 17 since October 1, 2008, the alleged onset date. Id. at 309. 18 At step two, the ALJ found that plaintiff suffered from the following severe 19 impairments: history of myocardial infarction; cardiomegaly; and fracture of the 20 right ankle, status post open reduction and internal fixation (ORIF) surgery. Id. 21 The ALJ found plaintiff’s high blood pressure, history of being overweight, and 22 anxiety disorder to be non-severe. Id. 23 At step three, the ALJ found that plaintiff’s impairments, whether 24 individually or in combination, did not meet or medically equal one of the listed 25 impairments set forth in 20 C.F.R. part 404, Subpart P, Appendix 1 (the 26 “Listings”). Id. at 310. The ALJ specifically analyzed plaintiff’s impairments 27 in light of 1.02, 1.06, 4.00, and the paragraph B and C criteria of listings under 28 12.00. Id. 3 The ALJ then assessed plaintiff’s RFC,1 and determined that she had the 1 2 RFC to perform a range of light work with the limitations that plaintiff could: lift 3 or carry 20 pounds occasionally and 10 pounds frequently; stand or walk for four 4 hours out of an eight-hour workday; and sit for six hours out of an eight-hour 5 workday. Id. at 310-11. 6 The ALJ found, at step four, that plaintiff could not perform her past 7 relevant work. Id. at 315. 8 At step five, the ALJ found there were additional jobs that existed in 9 significant numbers in the national economy that plaintiff could perform, 10 including small parts assembler, swatch clerk, and checker. Id. at 315-16. 11 Consequently, the ALJ concluded that plaintiff did not suffer from a 12 disability as defined by the Social Security Act (“SSA”). Id. at 317. 13 Plaintiff filed a request for review of the ALJ’s decision, which was denied 14 by the Appeals Council.2 The ALJ’s decision stands as the final decision of the 15 Commissioner. 16 III. 17 STANDARD OF REVIEW 18 This court is empowered to review decisions by the Commissioner to deny 19 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 20 Administration must be upheld if they are free of legal error and supported by 21 22 1 Residual functional capacity is what a claimant can do despite existing 23 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155-56 nn.5-7 (9th Cir. 1989). “Between steps three and four of the five-step 24 evaluation, the ALJ must proceed to an intermediate step in which the ALJ 25 assesses the claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 2007). 26 2 Although this does not appear in the Administrative Record, plaintiff 27 asserts the Appeals Council denied review (P. Mem. at 2) and defendant does 28 not dispute this. 4 1 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 2 (as amended). But if the court determines that the ALJ’s findings are based on 3 legal error or are not supported by substantial evidence in the record, the court 4 may reject the findings and set aside the decision to deny benefits. Aukland v. 5 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 6 1144, 1147 (9th Cir. 2001). 7 “Substantial evidence is more than a mere scintilla, but less than a 8 preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such 9 “relevant evidence which a reasonable person might accept as adequate to support 10 a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 11 F.3d at 459. To determine whether substantial evidence supports the ALJ’s 12 finding, the reviewing court must review the administrative record as a whole, 13 “weighing both the evidence that supports and the evidence that detracts from the 14 ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be 15 affirmed simply by isolating a specific quantum of supporting evidence.’” 16 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 17 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 18 the ALJ’s decision, the reviewing court “‘may not substitute its judgment for that 19 of the ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 20 1992)). 21 IV. 22 DISCUSSION 23 Plaintiff argues the ALJ erred because he improperly relied on the testimony 24 of the VE, who identified jobs that exceeded plaintiff’s RFC. P. Mem. at 2-7. 25 Specifically, plaintiff alleges that the ALJ erred by failing to identify and explain 26 inconsistency between the VE’s testimony and the DOT. Id. 27 At step five, the burden shifts to the Commissioner to show that the 28 claimant retains the ability to perform other gainful activity. Lounsburry v. 5 1 Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). To support a finding that a 2 claimant is not disabled at step five, the Commissioner must provide evidence 3 demonstrating that other work exists in significant numbers in the national 4 economy that the claimant can perform, given his or her age, education, work 5 experience, and RFC. 20 C.F.R. §§ 404.1512(f), 416.912(f). 6 ALJs routinely rely on the DOT “in evaluating whether the claimant is able 7 to perform other work in the national economy.” Terry v. Sullivan, 903 F.2d 1273, 8 1276 (9th Cir. 1990) (citations omitted); see also 20 C.F.R. § 416.966(d)(1) (DOT 9 is source of reliable job information). The DOT is the rebuttable presumptive 10 authority on job classifications. Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 11 1995). An ALJ may not rely on a VE’s testimony regarding the requirements of a 12 particular job without first inquiring whether the testimony conflicts with the 13 DOT, and if so, the reasons therefore. Massachi, 486 F.3d at 1152-53 (citing 14 Social Security Ruling (“SSR”) 00-4p).3 But failure to so inquire can be deemed 15 harmless error where there is no apparent conflict or the VE provides sufficient 16 support to justify deviation from the DOT. Id. at 1154 n.19. 17 In order for an ALJ to accept a VE’s testimony that contradicts the DOT, the 18 record must contain “‘persuasive evidence to support the deviation.’” Id. at 1153 19 (quoting Johnson, 60 F.3d at 1435). Evidence sufficient to permit such a 20 deviation may be either specific findings of fact regarding the claimant’s residual 21 functionality, or inferences drawn from the context of the expert’s testimony. 22 Light v. Soc. Sec. Admin., 119 F.3d 789, 793 (9th Cir. 1997) (citations omitted). 23 24 25 26 27 28 3 “The Commissioner issues Social Security Rulings to clarify the Act’s implementing regulations and the agency’s policies. SSRs are binding on all components of the SSA. SSRs do not have the force of law. However, because they represent the Commissioner’s interpretation of the agency’s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations.” Holohan v. Massanari, 246 F.3d 1195, 1203 n.1 (9th Cir. 2001) (internal citations omitted). 6 1 Here, the ALJ, as required, asked the VE to ensure his testimony was 2 consistent with the DOT and to inform the ALJ should there be any deviation. AR 3 at 328. Although the ALJ fulfilled his initial obligation to inquire whether the 4 VE’s testimony conflicted with the DOT, that was not the end of the ALJ’s 5 obligations. Where a VE wrongly testifies that there is no conflict, if “evidence 6 from a VE ‘appears to conflict with the DOT,’ SSR 00-4p requires further inquiry: 7 an ALJ must obtain ‘a reasonable explanation for the apparent conflict.’” 8 Overman v. Astrue, 546 F.3d 456, 463 (7th Cir. 2008) (quoting SSR 00-4p). 9 Where the ALJ fails to obtain an explanation for and resolve an apparent conflict – 10 even where the VE did not identify the conflict – the ALJ errs. See Hernandez v. 11 Astrue, 2011 WL 223595, at *2-5 (C.D. Cal. Jan. 21, 2011) (where VE incorrectly 12 testified there was no conflict between her testimony and DOT, ALJ erred in 13 relying on VE’s testimony and failing to acknowledge or reconcile the conflict); 14 Mkhitaryan v. Astrue, 2010 WL 1752162, at *3 (C.D. Cal. Apr. 27, 2010) 15 (“Because the ALJ incorrectly adopted the VE’s conclusion that there was no 16 apparent conflict, . . . the ALJ provided no explanation for the deviation” and 17 “therefore committed legal error warranting remand.”). 18 A. Plaintiff’s RFC Compared to the Definition of Light Work 19 The ALJ found plaintiff’s RFC limited to the range of light work that 20 requires lifting or carry 20 pounds occasionally, and 10 pounds frequently, and 21 involves no more than four hours standing and walking, or six hours sitting, 22 during any eight-hour workday. AR at 310; P. Mem. at 3-4. The ALJ relied on 23 the definition of light work in 20 C.F.R. §§ 404.1567(b) and 416.967(b) and SSR 24 83-10. Id. at 311. Plaintiff argues that under the definition in these regulations, 25 the jobs described by the VE are incompatible with plaintiff’s ability to stand or 26 walk a maximum of four hours per workday. P. Mem. at 4-7. 27 28 7 1 The federal regulations and Social Security policy define light work as 2 involving “lifting no more than 20 pounds at a time with frequent lifting or 3 carrying of objects weighing up to 10 pounds.” 20 C.F.R. §§ 404.1567(b), 4 416.967(b); SSR 83-10. The SSR notes the requirement of “a good deal of 5 walking or standing” is the characteristic that most often distinguishes light work 6 from sedentary work. SSR 83-10. According to the SSR, very few jobs involving 7 light work can be accomplished while in a seated position, and those that can be 8 generally require a greater exertion of force than sedentary work. Id. “[T]he full 9 range of light work requires standing or walking, off and on, for a total of 10 approximately 6 hours of an 8-hour workday,” with the possibility of sitting 11 intermittently during the remaining two hours of the day. Id. Because plaintiff is 12 limited to standing or walking no more than four hours in an eight-hour workday, 13 she argues the ALJ erred in not restricting her to jobs with only a sedentary 14 exertional level. P. Mem. at 5; see 20 C.F.R. §§ 404.1567(a), 416.967(a). The 15 court disagrees. 16 The VE testified, and it is undisputed, that the three jobs identified by the 17 VE are “light work.” AR at 329-30; see DOT 706.684-022 (small parts 18 assembler); DOT 222.587-050 (swatch clerk); DOT 222.687-010 (checker I). 19 According to the ALJ’s RFC determination, plaintiff is capable of performing only 20 “a range of light work,” not the “full range.” AR at 310. Nonetheless, the DOT 21 definition of light work under each of the vocations discussed by the VE does not 22 require performance of the “full range” of light work and does not conflict with 23 plaintiff’s RFC. The DOT defines “light work” for these positions as involving 24 the exertion of “up to 20 pounds of force occasionally”; or “up to 10 pounds 25 frequently”; or “a negligible amount of force constantly.” DOT 706.684-022, 26 222.587-050, 222.687-010. The definition for these jobs goes on to state that 27 where the weight lifted is only negligible, the job is still light work when, in 28 8 1 addition, the employee is required to: (1) “walk[] or stand[] to a significant 2 degree”; (2) sit for the majority of the time while “pushing and/or pulling of arm 3 or leg controls”; or (3) “work at a production rate pace entailing the constant 4 pushing and/or pulling of materials.” Id. Thus, nothing in the DOT’s description 5 of these positions requires standing or walking six hours in an eight-hour 6 workday. On the contrary, it allows for jobs that involve mostly sitting. Plaintiff’s 7 RFC, which limits her to standing and walking for no more than four hours, fits 8 within this definition. 9 B. The ALJ Did Not Err at Step Five Because There Is No Actual or 10 Apparent Conflict Between the VE Testimony and the DOT 11 After acknowledging that “a 50 year old individual with a twelfth grade 12 education . . . [who] is limited to a range of light work in that she can lift and carry 13 20 pounds occasionally, 10 pounds frequently, with no other postural limitations 14 except stand and walk would be limited to four hours out of an eight hour day, and 15 could sit for six hours out of an eight hour day,” could not do plaintiff’s past 16 relevant work as a child care attendant, the ALJ asked the VE whether there would 17 be other jobs for that individual. AR at 329. The VE indicated such an individual 18 could perform other “unskilled, light jobs in the economy,” including small parts 19 assembly, swatch clerk, and checker I. Id. at 329-30. 20 The hypothetical presented to the VE specifically and appropriately 21 included plaintiff’s standing and walking limitation. Id. Once presented with an 22 accurate hypothetical based on an uncontested RFC, the VE is charged with 23 “translat[ing] factual scenarios into realistic job market probabilities.” Sample v. 24 Schweiker, 694 F.2d 639, 643-44 (9th Cir. 1982). “The DOT lists maximum 25 requirements of occupations as generally performed, not the range of requirements 26 of a particular job as it is performed in specific settings.” SSR 00-4p. An ALJ 27 may rely on the testimony of a VE “to provide more specific information about 28 9 1 jobs or occupations than the DOT.” Id; Massachi, 486 F.3d at 1152-53; Bayliss v. 2 Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (“A VE’s recognized expertise 3 provides the necessary foundation for his or her testimony. Thus, no additional 4 foundation is required.”); SSR 00-4p. There is nothing in the DOT descriptions 5 of the jobs identified by the VE that conflicts with plaintiff’s RFC. 6 The ALJ limited plaintiff to a range of light work, presented the VE with a 7 hypothetical that reflected plaintiff’s age, educational level, relevant past work, 8 and RFC. There is no actual or apparent conflict between the DOT and plaintiff’s 9 RFC. Therefore, at step five, the ALJ did not err in relying on the VE’s testimony. 10 V. 11 CONCLUSION 12 IT IS THEREFORE ORDERED that Judgment shall be entered 13 AFFIRMING the decision of the Commissioner denying benefits, and dismissing 14 this action with prejudice. 15 16 DATED: September 29, 2015 17 18 SHERI PYM United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28 10

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