Jeanie L. Manley v. Carolyn W. Colvin, No. 5:2016cv01179 - Document 18 (C.D. Cal. 2016)
Court Description: MEMORANDUM OPINION by Magistrate Judge Charles F. Eick. For all of the foregoing reasons, Plaintiff's motion for summary judgment is denied and Defendant's motion for summary judgment is granted. (ec)
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Jeanie L. Manley v. Carolyn W. Colvin Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 JEANIE L. MANLEY, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, Acting ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. ED CV 16-1179-E MEMORANDUM OPINION 17 18 PROCEEDINGS 19 20 Plaintiff filed a Complaint on June 6, 2016, seeking review of 21 the Commissioner’s denial of benefits. The parties filed a consent to 22 proceed before a United States Magistrate Judge on July 8, 2016. 23 24 Plaintiff filed a motion for summary judgment on October 18, 25 2016. Defendant filed a motion for summary judgment on November 17, 26 2016. The Court has taken both motions under submission without oral 27 argument. 28 /// See L.R. 7-15; “Order,” filed June 8, 2016. Dockets.Justia.com 1 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 2 3 Plaintiff asserted disability since March 18, 2002, based on 4 alleged physical and mental impairments (Administrative Record 5 (“A.R.”) 159-63, 170-73, 197-205). 6 (“ALJ”) examined the medical record and heard testimony from 7 Plaintiff, one of Plaintiff’s friends, and a vocational expert (A.R. 8 17-27, 32-63, 275-332). An Administrative Law Judge 9 10 The ALJ found Plaintiff not disabled (A.R. 17-27). According to 11 the ALJ, Plaintiff suffers from severe “blind left eye from trauma; 12 history of left ankle pain without evidence of deformity or 13 arthropathy; history of right wrist trauma without evidence of 14 arthropathy or deformity; and questionable history of Grave’s [sic] 15 disease” (A.R. 19). 16 residual functional capacity to perform light work with certain 17 limitations, i.e., Plaintiff “can only walk 15 minutes at a time, 18 stand 25 minutes at a time, and after sitting an hour she would need 19 to be able to stand and walk for one minute,” and “needs normal breaks 20 every couple of hours” (A.R. 21-22, 24-25 (adopting consultative 21 internal medicine examiner’s opinion that Plaintiff could do light 22 work at A.R. 319-23, but adding restrictions based on Plaintiff’s 23 testimony regarding her alleged limitations in walking, standing, and 24 sitting at A.R. 47-48, 55-60)). 25 functional capacity could perform the light, unskilled jobs of 26 “cleaner, housekeeping” and “silver wrapper,” existing in significant 27 numbers in the national economy (A.R. 26-27 (adopting vocational 28 expert testimony at A.R. 54-62, testimony which the vocational expert The ALJ determined that Plaintiff retains the The ALJ found that a person with this 2 1 said was consistent with the Dictionary of Occupational Titles 2 (“DOT”))). 3 denied review (A.R. 5-9; see also A.R. 333-36 (additional evidence)). The Appeals Council considered additional evidence but 4 5 STANDARD OF REVIEW 6 7 Under 42 U.S.C. section 405(g), this Court reviews the 8 Administration’s decision to determine if: (1) the Administration’s 9 findings are supported by substantial evidence; and (2) the 10 Administration used correct legal standards. See Carmickle v. 11 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 12 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner 13 of Social Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). 14 Substantial evidence is “such relevant evidence as a reasonable mind 15 might accept as adequate to support a conclusion.” 16 Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); 17 see Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). Richardson v. 18 19 If the evidence can support either outcome, the court may 20 not substitute its judgment for that of the ALJ. 21 Commissioner’s decision cannot be affirmed simply by 22 isolating a specific quantum of supporting evidence. 23 Rather, a court must consider the record as a whole, 24 weighing both evidence that supports and evidence that 25 detracts from the [administrative] conclusion. But the 26 27 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 28 quotations omitted). 3 1 Where, as here, the Appeals Council considered additional 2 evidence but denied review, the additional evidence becomes part of 3 the record for purposes of the Court's analysis. 4 Commissioner, 682 F.3d at 1163 (“[W]hen the Appeals Council considers 5 new evidence in deciding whether to review a decision of the ALJ, that 6 evidence becomes part of the administrative record, which the district 7 court must consider when reviewing the Commissioner's final decision 8 for substantial evidence”; expressly adopting Ramirez v. Shalala, 8 9 F.3d 1449, 1452 (9th Cir. 1993)); Taylor v. Commissioner, 659 F.3d See Brewes v. 10 1228, 1231 (2011) (courts may consider evidence presented for the 11 first time to the Appeals Council “to determine whether, in light of 12 the record as a whole, the ALJ’s decision was supported by substantial 13 evidence and was free of legal error”); Penny v. Sullivan, 2 F.3d 953, 14 957 n.7 (9th Cir. 1993) (“the Appeals Council considered this 15 information and it became part of the record we are required to review 16 as a whole”); see generally 20 C.F.R. §§ 404.970(b), 416.1470(b). 17 18 DISCUSSION 19 20 After consideration of the record as a whole, Defendant’s motion 21 is granted and Plaintiff’s motion is denied. The Administration’s 22 findings are supported by substantial evidence and are free from 23 material1 legal error. 24 /// 25 26 1 27 28 The harmless error rule applies to the review of administrative decisions regarding disability. See Garcia v. Commissioner, 768 F.3d 925, 932-33 (9th Cir. 2014); McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011). 4 1 Plaintiff argues that: (1) the walking, standing, and sitting 2 limitations in the ALJ’s residual functional capacity assessment 3 equate to a “sit/stand option”; and (2) the DOT is silent on whether 4 particular light work jobs accommodate a sit/stand option; and 5 (3) there is a consequent “apparent conflict” between the vocational 6 expert’s testimony and the DOT. 7 discussed below, Plaintiff’s argument fails to demonstrate any 8 material error. See Plaintiff’s Motion, pp. 6-9. 9 10 SSR 00-4p2 provides in pertinent part: 11 12 In making disability determinations, we rely primarily 13 on the DOT. . . for information about the requirements of 14 work in the national economy. 15 and 5 of the sequential evaluation process. 16 [vocational experts]. . . at these steps to resolve complex 17 vocational issues. . . . We use [the DOT] at steps 4 We may also use 18 19 Occupational evidence provided by a [vocational expert] 20 . . . generally should be consistent with the occupational 21 information supplied by the DOT. 22 unresolved conflict between [vocational expert]. . . 23 evidence and the DOT, the adjudicator must elicit a 24 reasonable explanation for the conflict before relying on 25 the [vocational expert]. . . evidence to support a 26 determination or decision about whether the claimant is When there is an apparent 27 2 28 Social Security Rulings are “binding on ALJs.” v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). 5 Terry As 1 disabled. . . . 2 3 Neither the DOT nor the [vocational expert]. . . 4 evidence automatically “trumps” when there is a conflict. 5 The adjudicator must resolve the conflict by determining if 6 the explanation given by the [vocational expert]. . . is 7 reasonable and provides a basis for relying on the 8 [vocational expert]. . . testimony rather than on the DOT 9 information. 10 11 See SSR 00-4p (available at 2000 WL 1897804 (Dec. 4, 2000)); see also 12 Gutierrez v. Colvin, 2016 WL 6958646, at *2 (9th Cir. Nov. 29, 2016) 13 (“For a difference between an expert’s testimony and the [DOT’s] 14 listings to be fairly characterized as a conflict, it must be obvious 15 or apparent”). 16 17 In the present case, the ALJ consulted a vocational expert, who 18 testified that there exist significant numbers of two specific jobs 19 performable by a person who can only walk for 15 minutes at one time, 20 stand for 25 minutes at one time, and sit for one hour before needing 21 to stand and walk for one minute, with the overall capacity of 22 walking, standing, and sitting up to six hours each in a workday in 23 some combination, with normal breaks every couple of hours (A.R. 55- 24 56, 60-62). 25 testimony (and the ALJ’s reliance thereon) did not violate SSR 00-4p. Contrary to Plaintiff’s argument, the vocational expert’s 26 27 28 The DOT states that a job is “light work” when the job requires walking or standing to a significant degree, or when the job requires 6 1 sitting most of the time but entails pushing and/or pulling of arm or 2 leg controls. 3 standing, and walking requirements of the light work jobs in question, 4 including the issue of whether these jobs can accommodate a sit/stand 5 option. 6 (4th Ed. R 1991); “Silver Wrapper,” DOT 318.687-018, 1991 WL 672757 7 (4th Ed. R. 1991). 8 the mere silence of the DOT an “obvious or apparent” conflict with the 9 testimony of the vocational expert. The DOT is otherwise silent on the specific sitting, See “Cleaner, Housekeeper,” DOT 323.687-014, 1991 WL 672783 Thus, Plaintiff invites this Court to discern from 10 11 There is no controlling Ninth Circuit authority regarding whether 12 the DOT’s silence regarding a sit/stand option is in “obvious or 13 apparent” conflict with a vocational expert’s testimony that a person 14 requiring a sit/stand option can perform a particular job. 15 Dewey v. Coleman, 650 Fed. App’x 512, 514 (9th Cir. 2016) (“Dewey”) 16 (no conflict between vocational expert testimony and the DOT regarding 17 whether jobs allow for a sit/stand option because the DOT is silent on 18 the issue; the ALJ properly consulted a vocational expert, who 19 indicated there were jobs the claimant could perform; the vocational 20 expert’s testimony did not deviate from the DOT); with Coleman v. 21 Astrue, 423 Fed. App’x 754, 756 (9th Cir. 2011) (conflict between 22 vocational expert testimony and the DOT where the claimant needed to 23 alternate sitting, standing and walking on an hourly basis, and the 24 vocational expert testified that the claimant could perform certain 25 sedentary and light occupations which, by the DOT, involve sitting 26 most of the time or walking or standing to a significant degree; the 27 ALJ erred in failing to ask the vocational expert if the expert’s 28 testimony conflicted with the DOT); and Buckner-Larkin v. Astrue, 450 7 Compare 1 Fed. App’x 626, 628-29 (9th Cir. 2011) (any conflict was “addressed 2 and explained” where vocational expert testified that jobs would allow 3 for an at-will sit/stand option and stated that, although the DOT does 4 not discuss a sit/stand option, the expert’s opinion was based on his 5 own labor market surveys, experience, and research); see also 6 Laufenberg v. Colvin, 2016 WL 6989756, at *8-9 (C.D. Cal. Nov. 29, 7 2016) (agreeing with Dewey, although acknowledging that district court 8 decisions on the issue are divided); Villalpando v. Colvin, 2016 WL 9 6839342, at *4-5 (C.D. Cal. Nov. 21, 2016) (same). 10 11 This Court agrees with Dewey. There is no “obvious or apparent 12 conflict” between the DOT and a vocational expert’s testimony that a 13 particular job can accommodate a sit/stand option. 14 otherwise would mean that [vocational experts] always create conflicts 15 with the DOT whenever they mention any of the multitude of things 16 about a job not expressly addressed in the DOT.” 17 Colvin, 2016 WL 6989756, at *9. 18 jurisprudence appears to require the discernment of such omnipresent 19 “conflicts.” 20 capacity determination properly may be characterized as requiring a 21 sit/stand option, there was no material error in the administrative 22 decision. “[T]o hold Laufenferg v. Neither SSR 00-4p nor Ninth Circuit Therefore, even if the ALJ’s residual functional See Dewey, 650 Fed. App’x at 514. 23 24 An ALJ properly may consult a vocational expert to identify 25 unskilled jobs performable by a person who must alternate sitting and 26 standing. 27 2001) (“the Commissioner has ruled that in circumstances such as 28 Aukland’s, where a claimant is only qualified for unskilled jobs and See Aukland v. Massanari, 257 F.3d 1033, 1036 (9th Cir. 8 1 is unable to sit for prolonged periods, the services of a vocational 2 expert are required”) (citing SSR 83-12).3 3 relied on the vocational expert’s identification of specific jobs 4 performable by a person with Plaintiff’s residual functional capacity. 5 See generally Bayliss v. Barnhart, 427 F.3d 1211, 1217-18 (9th Cir. 6 2005). 7 was free from material legal error. 8 F.3d 1219, 1222 (9th Cir. 2009). 9 /// 10 /// 11 /// 12 /// 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// Here, the ALJ properly The ALJ’s decision was supported by substantial evidence and See Bray v. Commissioner, 554 20 21 22 23 24 25 26 27 28 3 SSR 83-12 provides: [M]ost jobs have ongoing work processes which demand that a worker be in a certain place or posture for at least a certain length of time to accomplish a certain task. Unskilled types of jobs are particularly structured so that a person cannot ordinarily sit or stand at will. In cases of unusual limitation of ability to sit or stand, a [vocational specialist] should be consulted to clarify the implications for the occupational base. See SSR 83-12 (available at 1983 WL 31253 (Jan. 1, 1983)) (emphasis added). 9 1 CONCLUSION 2 3 For all of the foregoing reasons, Plaintiff’s motion for summary 4 judgment is denied and Defendant’s motion for summary judgment is 5 granted. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: December 12, 2016. 10 11 12 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
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