Hector Ascencio Valles v. Carolyn W. Colvin, No. 5:2015cv00432 - Document 33 (C.D. Cal. 2016)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen L. Stevenson. For the reasons stated above, the Court finds that the Commissioner's decision is supported by substantial evidence and free from material legal error. Neither reversa l of the ALJs decision nor remand is warranted. IT IS ORDERED that Judgment shall be entered affirming the decision of the Commissioner of the Social Security Administration. IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this Memorandum Opinion and Order and the Judgment on counsel for plaintiff and for defendant. (es)
Download PDF
<![CDATA[
Hector Ascencio Valles v. Carolyn W. Colvin Doc. 33 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 HECTOR VALLES, Plaintiff 12 13 14 15 v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, No. EDCV 15-0432 (KS) MEMORANDUM OPINION AND ORDER Defendant. 16 17 18 INTRODUCTION 19 20 On March 6, 2015, Hector Valles (“Plaintiff”), filed a Complaint seeking 21 judicial review of a denial of his application for a period of disability and disability 22 insurance benefits (“benefits”.) (Complaint, ECF No. 1.) On August 17, and 26, the 23 parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned 24 United States Magistrate Judge. (Consents, ECF Nos. 23, 24.) On December 29, 25 2015, the parties filed a Joint Stipulation, whereby Plaintiff seeks an order reversing 26 the Commissioner’s decision and awarding benefits or, in the alternative, remanding 27 the matter for further administrative proceedings; and Defendant seeks an order 28 affirming the Commissioner’s decision or, in the alternative, remanding the matter Dockets.Justia.com 1 2 for further administrative proceedings. (Joint Stip., ECF No. 32). The Court has taken the Joint Stipulation under submission without oral argument. 3 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 4 5 6 On January 4, 2012, Plaintiff filed an application for benefits, alleging 7 disability beginning November 1, 2001 due to an above-elbow amputation of his left 8 arm with phantom limb pain and right-sided carpal tunnel syndrome as well as 9 hypertension, headaches, gastroesophageal reflux disease, back pain, knee pain, and 10 depressive disorder. (Administrative Record (“A.R.”) 11; 13-15.) Plaintiff’s claim 11 was denied initially on August 29, 2012 and upon reconsideration on March 6, 2013. 12 (A.R. 11; 85-88.) On March 20, 2013, Plaintiff requested a hearing, which was held 13 on October 9, 2013. (Id.) Administrative Law Judge Paul Colter (“ALJ”) presided 14 over the hearing which included testimony by an impartial vocational expert (“VE”) 15 and Plaintiff who was represented by an attorney. (A.R. 11; 20.) In a written 16 decision dated November 29, 2013, the ALJ denied benefits determining that 17 Plaintiff suffered from non-severe impairments. (A.R. 8-24.) On January 7, 2015, 18 the Appeals Council denied Plaintiff’s request for review of that decision. (A.R. 1- 19 3.) Plaintiff then filed this civil action. 20 SUMMARY OF ADMINISTRATIVE DECISION 21 22 23 The ALJ utilized the five-step sequential evaluation process to determine 24 whether Plaintiff was disabled. 20 C.F.R. § 416.920. At the first step, the ALJ 25 found that Plaintiff had engaged in substantial gainful activity during 26 repairing washing machines (DOT1 627.261-010 SVP 7, medium) and as a general 27 helper at Goodwill (DOT 919.683-014, SVP 2, light), but concluded there had been 28 1 “DOT” refers to the Dictionary of Occupational Titles. 2 2006 1 a continuous 12-month period(s) since the alleged disability onset date during which 2 Plaintiff did not engage in substantial gainful activity and based the reminder of the 3 findings on the period when Plaintiff did not engage in substantial gainful activity. 4 (Id.) (A.R. 13.) At the second step, found that Plaintiff suffered from the following 5 severe impairments: “amputated left arm (above elbow), with phantom limb pain; 6 and right-sided carpal tunnel syndrome.” (A.R. 13.) The ALJ noted that Plaintiff 7 alleged other impairments, including hypertension, headaches, gastroesophageal 8 reflux disease, back pain, knee pain, and depressive disorder, but found that these 9 impairments did not individually or in combination “cause more than minimal 10 limitation in the [Plaintiff’s] ability to perform basic work activities,” and, on that 11 basis, found that these additional impairments were non-severe. (Id.) 12 13 At the third step, the ALJ considered Plaintiff’s impairments and determined 14 that such impairments did not meet or medically equal the criteria of an impairment 15 listed in 20 CFR Part 404, Subpart P, Appendix 1. (A.R. 15-16.) Next, after 16 considering Plaintiff’s questionnaire and testimony, medical records (including 17 MRIs, X-rays, progress notes, records of taking medication, a consultative exam by 18 Dr. Sean To M.D., and the opinions of four state agency consultant physicians, Tim 19 Schumacher, PhD, Kevin Gregg, M.D., F, Kalmar, M.D., and J. Hartman, M.D.), the 20 ALJ determined that Plaintiff had the residual functional capacity (“RFC”) to 21 22 perform “light work” as defined in 20 CFR 416.967 (b), except he is able to 23 lift, carry, push or pull 20 pounds occasionally and 10 pounds frequently; 24 stand/walk for about 6 hours out of 8; sit for about 6 hours out of 8; 25 frequently perform postural activities such as climbing, balancing, stooping, 26 kneeling, crouching, and crawling; and never climb ladders, ropes, or 27 scaffolds. Regarding his left upper extremity, [Plaintiff] cannot reach, handle, 28 finger, or feel. Regarding his right (dominant) upper extremity, he can 3 1 frequently handle and finger. Lastly, [Plaintiff] must avoid concentrated 2 exposure to extreme cold, vibration, and hazards, such as machinery and 3 heights. 4 5 (A.R. 19.) 6 7 At the fifth step, the ALJ considered Plaintiff’s RFC, “age, education, work, 8 experience,” and the VE testimony to conclude that Plaintiff can perform “jobs that 9 exist in significant numbers in the national economy.” (A.R. 19.) This was based 10 on the VE’s testimony that “given all of [the limiting] factors [a hypothetical] 11 individual would be able to perform the requirements of representative occupations 12 such as surveillance systems monitor (Dictionary of Occupational Titles (“DOT”) 13 379.367-010, unskilled, SVP 2, sedentary), with 5,000 positions nationally and 14 information clerk at a call center (DOT 237.367-046, unskilled, SVP 2, sedentary), 15 with 80,000 positions nationally.” (A.R. 19-20.) 16 17 STANDARD OF REVIEW 18 19 Under 42 U.S.C. § 405(g), this Court reviews the ALJ’s decision to determine 20 whether it is free from legal error and supported by substantial evidence in the 21 record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “Substantial 22 evidence is more than a mere scintilla but less than a preponderance; it is such 23 relevant evidence as a reasonable mind might accept as adequate to support a 24 conclusion.” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 25 2014) (internal quotation marks and citations omitted). “Even when the evidence is 26 susceptible to more than one rational interpretation, [reviewing courts] uphold the 27 ALJ’s findings if they are supported by inferences reasonably drawn from the 28 record.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). The Court will 4 1 also not reverse the Commissioner’s decision “[w]here evidence is susceptible to 2 more than one rational interpretation,” even if it were to disagree with the ALJ’s 3 conclusions. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 4 5 Where the ALJ has properly considered all of the limitations for which there 6 is record support, the ALJ’s RFC determination will not be overturned so long as the 7 ALJ applied the correct legal standard and the RFC assessment is supported by 8 substantial evidence. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). 9 Although this Court cannot substitute its discretion for that of the ALJ, it must 10 nonetheless review the record as a whole, “weighing both the evidence that supports 11 and the evidence that detracts from the Commissioner’s conclusion.” Lingenfelter v. 12 Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (internal quotation marks and citation 13 omitted). “The ALJ is responsible for determining credibility, resolving conflicts in 14 medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 15 1035, 1039 (9th Cir. 1995). 16 17 The Court may review only the reasons stated by the ALJ in her decision “and 18 may not affirm the ALJ on a ground upon which [s]he did not rely.” Orn, 495 F.3d 19 at 630; see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). However, 20 the Court will not reverse the Commissioner’s decision if it is based on harmless 21 error, which exists when it is “clear from the record that an ALJ’s error was 22 ‘inconsequential to the ultimate nondisability determination.’” Robbins v. Soc. Sec. 23 Admin., 466 F.3d 880, 885 (9th Cir. 2006) (quoting Stout v. Comm’r of Soc. Sec., 24 454 F.3d 1050, 1055 (9th Cir. 2006).) 25 26 Courts must “remand for further proceedings when . . . an evaluation of the 27 record as a whole creates serious doubt that a claimant is, in fact, disabled.” 28 5 1 Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014); see also Burrell v. Colvin, 2 775 F.3d 1133, 1140-42 (9th Cir. 2014). 3 DISCUSSION 4 5 6 Plaintiff challenges the ALJ’s decision on the following two grounds, that: (1) 7 the ALJ’s adverse credibility assessment of Plaintiff was not supported by 8 substantial evidence; and (2) there was an inconsistency between the DOT job 9 requirements and the ALJ’s holding that Plaintiff “can perform the jobs such as 10 surveillance systems monitor and information clerk at a call center.” (Joint Stip. at 11 3.) 12 13 1. The ALJ’s Credibility Assessment Is Legally Sufficient and Supported by Substantial Evidence. 14 15 16 The ALJ found that Plaintiff’s “statements concerning the intensity, persistence 17 and limiting effects of [the alleged] symptoms are not entirely credible.” (A.R. at 18 17.) 19 20 a. Legal Standard for Assessing A Claimant’s Credibility 21 22 An ALJ must make two findings before determining that a claimant’s pain or 23 symptom testimony is not credible. Treichler v. Comm’r of Soc. Sec., 775 F.3d 24 1090, 1102 (9th Cir. 2014). “First, the ALJ must determine whether the claimant 25 has presented objective medical evidence of an underlying impairment which could 26 reasonably be expected to produce the pain or other symptoms alleged.” Id. (quoting 27 Lingenfelter, 504 F.3d at 1036). “Second, if the claimant has produced that 28 evidence, and the ALJ has not determined that the claimant is malingering, the ALJ 6 1 must provide specific, clear and convincing reasons for rejecting the claimant’s 2 testimony regarding the severity of the claimant’s symptoms” and those reasons 3 must be supported by substantial evidence in the record. Id.; see also Marsh v. 4 Colvin, 792 F.3d 1170, 1174 n.2 (9th Cir. 2015). 5 6 b. The ALJ’s Analysis of Plaintiff’s Credibility 7 8 9 The ALJ evaluated Plaintiff’s statements and hearing testimony, which the ALJ summarized as follows: 10 11 The claimant alleges he is unable to work due to injuries he sustained in a motor 12 vehicle accident on his alleged onset date, November 1, 2001. Specifically, the 13 claimant as in a coma after the accident, and his left arm was amputated above 14 the elbow when he woke up. He has had 2 prosthetic devices for his missing left 15 arm, but they do not work. He still experiences phantom limb pain. He also 16 experiences lower back and knee problems, especially on the left side, as well 17 as high blood pressure, depression, and carpal tunnel syndrome in his right 18 upper extremity, which causes numbness and pain in his wrist and hand. He 19 only has 50% use of his left leg, and cannot hold objects with his right hand. He 20 describes his pain as constant and severe (10 on a scale of 10), and said he 21 spends his days watching television and napping. His medications cause side 22 effects like dizziness, nausea, weakness, constipation, and tiredness. He can 23 only walk about one block before needing to stop and rest for 15 minutes. 24 Overall, his impairments affect his ability to lift, squat, bend, stand, reach, walk, 25 sit, kneel, climb stairs, remember, complete tasks, concentrate, use his hands, 26 and get along with others. 27 28 (A.R. 16-17.) 7 1 The ALJ found that Plaintiff’s “medically determinable impairments could 2 reasonably be expected to cause the alleged symptoms.” (A.R. 17.) While the ALJ 3 noted that examining physician, Linda Smith, MD, “observed that [Plaintiff] was 4 probably trying to manipulate her, and that he probably was not compliant with his 5 medication” (A.R. 18), the ALJ did not determine that Plaintiff was malingering. 6 i. Specific, Clear, and Convincing Reasons Supported by 7 Substantial Evidence 8 9 10 The ALJ must “specifically identify the testimony [from the claimant that] 11 she or he finds not to be credible and . . . explain what evidence undermines the 12 testimony.” Treichler, 775 F.3d at 1102 (quoting Holohan v. Massanari, 246 F.3d 13 1195, 1208 (9th Cir. 2001)). Plaintiff argues that although “the ALJ briefly 14 summarized plaintiff’s testimony and statements, the ALJ did not provide which 15 statements he specifically accepted or rejected nor did he provide clear and 16 convincing reasons for rejecting plaintiff’s testimony and statements.” (Joint Stip. 17 at 5.) 18 The ALJ did, in fact, identify specific inconsistencies that cast doubt on 19 20 Plaintiff’s credibility as a whole. 21 consistently reported phantom limb pain and medication side effects to treatment 22 providers, he worked after his alleged onset date, including skilled, medium jobs, 23 which he performed at substantial gainful activity levels.” (A.R. 18.) Although 24 Plaintiff “indicated that he is unable to perform any activities of daily living,” he 25 also indicated that “he did not perform any of these tasks prior to his alleged onset 26 date.” 27 “routinely document largely normal physical and mental functioning.” (Id.) (Id.) The ALJ noted that “although [Plaintiff] Further, the ALJ observed that Plaintiff’s medical examinations 28 8 1 On this record, the Court finds that the ALJ provided specific, clear and 2 convincing reasons for discounting Plaintiff’s credibility. See Orn, 495 F.3d at 636 3 (ALJs may use inconsistencies between the plaintiff’s testimony and prior 4 statements, conduct, and daily activities as grounds for discrediting the plaintiff’s 5 subjective symptom testimony); see also Ghanim v. Colvin, 763 F.3d 1154, 1165 6 (9th Cir. 2014) (a claimant casts doubt on his claim of disability by holding himself 7 out as capable of working after the alleged onset date); Bray v. Comm’r of Soc. 8 Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (An ALJ may properly discredit a 9 claimant’s testimony where he worked and sought out other employment after the 10 alleged onset of disability). Further, the ALJ’s credibility determination is 11 supported by substantial evidence in the record. 12 ii. Substantial Evidence Supports the ALJ’s Adverse Credibility 13 Determination 14 15 16 Besides his own testimony, little in Plaintiff’s objective medical record 17 supports a finding of disability from the alleged onset date of November 1, 2001. 18 Plaintiff’s medical history is comprised largely of records from 2012 to 2013,with 19 the exception of records dating from his left arm amputation and left knee surgery 20 following his automobile accident in late 2001 (A.R. 273-83), and a single 21 psychiatric evaluation dated October 13, 2009, where Dr. Smith concluded 22 Plaintiff’s “psychiatric prognosis is fair. ” (A.R. 203.) 23 Smith’s assessment “some weight” and noted that the “remainder of the evidence of 24 record . . . fails to demonstrate any deficits in the [Plaintiff’s] mental functioning.” 25 (A.R. 14.) The ALJ only gave Dr. 26 27 After his amputation and knee surgery, there appears to be little or no 28 objective medical evidence—aside from the prescription of pain medication— 9 1 corroborating Plaintiff’s complaints of “really bad” back pain five times per week, 2 knee pain every day, “really bad” hand and arm pain, depression or any mental 3 health conditions. 4 objective evidence of 5 “suggesting that this impairment may not be as bothersome as alleged.” (Id.) The 6 ALJ reasoned that taking these factors in combination, “these aspects of the record 7 indicate that the claimant is only partially credible.” (Id. at 19.) Even so, the ALJ 8 restricted Plaintiff to a reduced range of light work given the evidence of his left 9 arm amputation, right arm carpal tunnel syndrome, an osteochondral defect of the 10 medial femoral condyle of his left knee, chronic hypertension, phantom limb pain 11 and medication side effects. (Id.) (A.R. 37-41, 255, 262). The ALJ also noted that despite carpal tunnel syndrome, Plaintiff declined surgery 12 13 While “subjective pain testimony cannot be rejected on the sole ground that it 14 is not fully corroborated by objective medical evidence,” here it is bolstered by 15 Plaintiff’s prior work which is inconsistent with his allegations of complete 16 disability. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (emphasis 17 added) (citation omitted). 18 disability onset date of November 1, 2001. However, between 2006 and 2011, 19 Plaintiff, by his own admission, worked on and off as an appliance technician for a 20 laundromat, including lifting and moving heavy machinery. (A.R. 31-32, 164.) 21 Plaintiff states that he stopped working on March 31, 2011 because he “was laid off 22 due to lack of work and also [his] disability [sic] wwas affecting [his] ability to 23 work.” (A.R. 31, 151, 152.) Plaintiff testified that his low back pain started “when 24 [he] was working --doing the appliances because [he] used to deliver . . . things 25 ranging from 250, to 350 pounds.” (A.R. 36.) He further testified that “somehow 26 [he] was able to do that. [He] felt healthy enough. So [he] was delivering the 27 machines, repairing and everything. . . .[O]nce in a while, would feel like oh, my Plaintiff first applied for benefits in 2012, alleging a 28 10 1 back.” (A.R. 36. See also A.R. 32 (“My back and everything wasn’t that bad. And 2 then again it started going out.”).) 3 4 Thus, to the extent that the ALJ discounted Plaintiff’s testimony about the 5 intensity, persistence and limiting effects of the alleged symptoms, the ALJ 6 explained his findings with legally sufficient reasons supported by substantial 7 evidence in the record. 8 (Where, as here, the ALJ’s finding is supported by substantial evidence, the Court 9 may not engage in second-guessing.) Chaudhry v. Astrue, 688 F.3d 661, 672 (9th Cir. 2012) 10 11 2. The ALJ’s Step Five Determination is Not Inconsistent with the DOT. 12 13 14 15 16 17 18 19 20 21 22 23 Plaintiff argues that the ALJ erred at step five because he adopted the findings of the VE identifying jobs that Plaintiff could perform even though “both jobs identified by the VE are inconsistent with Plaintiff’s limitations,” as detailed in the ALJ’s RFC. (Joint Stip. at 15.) Specifically, Plaintiff contends that the identified jobs “of a surveillance systems monitor while not requiring any reaching, handling, fingering or feeling still requires use of his bilateral upper extremities and information clerk at a call center would require plaintiff to do a combination of reaching, handling, and fingering with the bilateral upper extremities.” (Id. at 16.) Because the ALJ determined that Plaintiff's RFC precluded jobs that require, inter alia, reaching, handling, fingering, or feeling with his left upper extremity, Plaintiff claims that the ALJ erred. (A.R. 16; Joint Stip. at 16.) 24 25 26 27 28 At step five, the burden shifts to the ALJ to identify jobs that exist in significant numbers in the national economy that the claimant can perform. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006); Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999); Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 11 1 1995). The ALJ can meet this burden by: (1) the testimony of a VE, who can assess 2 the claimant’s limitations and identify any existing jobs the claimant can perform; or 3 (2) relying on the Medical-Vocational Guidelines set forth in 20 C.F.R. part 404, 4 Subpart P, Appendix 2. Lounsburry, 468 F.3d at 1114; Tackett, 180 F.3d at 1100- 5 01. The ALJ may also rely on the DOT in evaluating whether the claimant is able to 6 perform other work in the national economy. Johnson, 60 F.3d at 1435; see also 20 7 C.F.R. § 416.966(d)(1) (DOT is source of reliable job information). 8 9 Here, the ALJ relied on the testimony of the VE to determine whether 10 Plaintiff, given his RFC, could perform other jobs that exist in significant numbers 11 in the national economy. (A.R. 47.) Following the VE’s testimony, the ALJ asked 12 the VE “has your testimony today been according to the DOT?” and received an 13 affirmative response. 14 determine conclusively that the ALJ met his affirmative responsibility to ask about 15 any possible conflict between the VE’s evidence and information provided in the 16 DOT. See Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007); See also SSR 17 00-4p at *4 (describing ALJ’s obligation to identify and investigate potential 18 conflicts with the DOT.) See also Mejia v. Colvin, 2015 U.S. Dist. LEXIS 146384, 19 17-18 (C.D. Cal. Oct. 28, 2015) (citing Wentz v. Comm'r Soc. Sec. Admin., 401 F. 20 App’x 189, 191 (9th Cir. 2010) (emphasizing that an ALJ is required to directly ask 21 the VE “whether her testimony conflicted with the DOT,” and distinguishing cases 22 where the “ALJ asked the VE if her testimony was consistent with the DOT, not 23 whether it conflicted with the DOT,” and where the “ALJ asked the VE whether her 24 opinion was based on the DOT.”)) However, the Court need not reach this issue 25 because it finds no inconsistencies between the VE’s testimony and the DOT. 2 26 27 28 (A.R. 47.) Based on this exchange, the Court cannot 2 The Commissioner suggests that “Plaintiff’s declination to question the VE undermines his current claim that the jobs identified by the VE were inconsistent with his RFC.” (Joint Stip. at 20; see also A.R. 47 “Ms. Carlos, do you have any questions? No questions, Your Honor.”) To the extent that the Commissioner attempts to characterize precedent as supportive of its conclusion, the Court reminds the Commissioner that it is not counsel's burden to identify conflict, and the burden remains with the ALJ under Massachi and SSR 00-4p. Therefore, the fact that 12 1 According to the DOT job description, a surveillance systems monitor: 2 3 Monitors premises of public transportation terminals to detect crimes or 4 disturbances, using closed circuit television monitors, and notifies 5 authorities by telephone of need for corrective action: Observes television 6 screens that transmit in sequence views of transportation facility sites. 7 Pushes hold button to maintain surveillance of location where incident is 8 developing, and telephones police or other designated agency to notify 9 authorities of location of disruptive activity. Adjusts monitor controls when 10 required to improve reception, and notifies repair service of equipment 11 malfunctions. 12 13 DOT 379.367-010. According to the DOT job description, an information clerk at a 14 call center: 15 16 Answers telephone calls from customers requesting current stock quotations 17 and provides information posted on electronic quote board. Relays calls to 18 REGISTERED REPRESENTATIVE (financial) 250.257-018 as requested by 19 customer. May call customers to inform them of stock quotations. 20 21 DOT 237.367-046. 22 Both jobs are assigned exertional levels of “unskilled” “sedentary”. 23 24 The only support Plaintiff offers for arguing that the above DOT job 25 descriptions somehow conflict with Plaintiff’s RFC limitations as assessed by the 26 ALJ, is to portray the jobs of surveillance system monitor and information clerk at a 27 28 Plaintiff’s counsel did not question the VE, or challenge the VE’s interpretation or application of the DOT during her closing comments, is inconsequential. (Id. at 47-48.) 13 1 call center as requiring use of the bilateral upper extremities—which was precluded 2 in the RFC limitations. Notably, Plaintiff does not dispute that according to the 3 DOT, the jobs of surveillance systems monitor and information clerk at a call center 4 did not actually require any reaching, handling, fingering, or feeling of the bilateral 5 upper extremities. 6 7 Rather, Plaintiff contends that because both alternative jobs are at the 8 unskilled sedentary exertional level, and most such jobs “require good use of the 9 hands and fingers,” Plaintiff cannot perform them due to his amputation of the left 10 arm. (Joint Stip. at 17-18.) Specifically, Plaintiff argues that he cannot perform the 11 job of surveillance systems monitor because “[i]t would be difficult for an individual 12 with one arm to push the hold button to maintain surveillance of location where 13 incident is developing and telephone police at the same time to inform them of the 14 developing situation.” (Joint Stip. at 18.) Similarly, Plaintiff argues that he cannot 15 perform the job of information clerk at a call center because that job requires “an 16 individual to answer or make phone calls all day,” which Plaintiff cannot do “with 17 the use of only one arm.” (Joint Stip. at 18.) 18 19 Plaintiff’s argument that the assessed RFC is not compatible with the VE’s 20 testimony or the DOT is not rooted in objective data concerning how either job is 21 “generally performed” or “actually performed.” 22 appears to derive entirely from conjecture and personal opinion. For instance, the 23 DOT does not specify that a surveillance systems monitor must push a hold button 24 with one arm while simultaneously telephoning police with the other arm. There is 25 also no apparent conflict between the assessed RFC and the job requirement of 26 answering or making phone calls. Recently, this Court found that such arguments 27 based on “common sense,” do not overcome the actual language contained in the 28 14 Rather, Plaintiff’s contention 1 DOT. See e.g. Jones v. Colvin, 2015 U.S. Dist. LEXIS 33815, **14-15 (C.D. Cal. 2 Mar. 18, 2015). 3 4 In Jones, a plaintiff argued that the “ALJ erred in relying on the VE's 5 testimony that plaintiff could perform the occupation of school bus monitor, because 6 it would be ‘impossible’ for plaintiff to perform this occupation given that she: (1) 7 needs to use a cane whenever changing from sitting to standing, or vice versa; and 8 (2) cannot withstand exposure to concentrated vibration.” Jones, 2015 U.S. Dist. 9 LEXIS 33815, at *13. Although Jones conceded that “the VE’s testimony is 10 consistent with the DOT,” she maintained that “the ALJ erred because it ‘defies 11 common sense’ to charge an individual who requires a cane to go from sitting to 12 standing, and vice versa, with maintaining discipline and safety and preventing 13 altercations,” and that “[a]nyone who has had the pleasure of riding on a school bus 14 is well aware that the ride is extremely bumpy and has constant vibration.” Id. at 15 **14-15. Unpersuaded, this Court upheld “the ALJ’s determination that plaintiff 16 could perform the occupation of school bus monitor,” stating that it was “aware of 17 no legal authority that permits an ALJ to reject VE testimony and the DOT 18 whenever he feels it conflicts with ‘common sense’ and his own personal 19 experiences.” Id. at *15. 20 21 Here, as in Jones, Plaintiff offers no authority to support his contention that 22 the ALJ should not have relied on “the DOT's description of the requirements for 23 each listed occupation and on VE testimony about the specific occupations that the 24 plaintiff can perform.” Id. 25 determination that Plaintiff, based on the VE’s testimony, can perform the 26 occupations of surveillance systems monitor and information clerk, lacks legal error 27 and is supported by substantial evidence. Zavalin v. Colvin, 778 F.3d 842, 846 (9th 28 Cir. 2015); see also Osenbrock v. Apfel, 240 F.3d 1157, 1163 (9th Cir. 2001) Accordingly, the Court finds that the ALJ’s 15 1 (testimony of a VE constitutes substantial evidence); Bayliss, 427 F.3d at 1218 2 (ALJ may rely on “any reliable job information,” including the testimony of a VE); 3 Johnson, 60 F.3d at 1435. 4 CONCLUSION 5 6 7 For the reasons stated above, the Court finds that the Commissioner’s 8 decision is supported by substantial evidence and free from material legal error. 9 Neither reversal of the ALJ’s decision nor remand is warranted. 10 11 12 Accordingly, IT IS ORDERED that Judgment shall be entered affirming the decision of the Commissioner of the Social Security Administration. 13 14 IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of 15 this Memorandum Opinion and Order and the Judgment on counsel for plaintiff and 16 for defendant. 17 18 LET JUDGMENT BE ENTERED ACCORDINGLY. 19 20 DATED: April 21, 2016 21 22 23 __________________________________ KAREN L. STEVENSON UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 16
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
