Evelyn Ann Kammerer v. Carolyn W. Colvin, No. 5:2016cv01973 - Document 20 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Douglas F. McCormick. For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. See document for further information. (dv)
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Evelyn Ann Kammerer v. Carolyn W. Colvin Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 EVELYN ANN KAMMERER, 12 Plaintiff, 13 14 15 v. Case No. ED CV 16-1973-DFM MEMORANDUM OPINION AND ORDER NANCY A. BERRYHILL, Acting Commissioner of Social Security,1 16 Defendant. 17 18 Evelyn Ann Kammerer (“Plaintiff”) appeals from the Social Security 19 20 Commissioner’s final decision denying her application for Social Security 21 Disability Insurance Benefits (“DIB”). For the reasons discussed below, the 22 Commissioner’s decision is affirmed and this matter is dismissed with prejudice. 23 /// 24 /// 25 /// 26 27 28 1 On January 23, 2017, Berryhill became the Acting Social Security Commissioner. Thus, she is automatically substituted as Defendant under Federal Rule of Civil Procedure 25(d). Dockets.Justia.com 1 I. 2 BACKGROUND 3 Plaintiff applied for DIB on August 30, 2012, alleging a disability 4 beginning March 10, 2009. Administrative Record (“AR”) 59. After Plaintiff’s 5 application was denied initially and upon reconsideration, she requested a 6 hearing before an administrative law judge (“ALJ”). AR 89-99, 101-07. On 7 March 9, 2015, a hearing was held in front of an ALJ. AR 26-58. The ALJ heard 8 testimony from Plaintiff, who was represented by counsel, as well as a medical 9 expert (“ME”) and a vocational expert (“VE”). See id. 10 In a written decision issued March 27, 2015, the ALJ denied Plaintiff’s 11 claim for benefits. AR 9-25. The ALJ concluded that Plaintiff “last met the 12 insured status requirements of the Social Security Act on March 31, 2014.” AR 13 14. Further, based on his review of the evidence, the ALJ determined that 14 Plaintiff possesses the residual functional capacity (“RFC”) 15 to perform light work . . . except she is limited to frequent 16 overhead reaching with the non-dominant left upper extremity. 17 She is capable of occasional pushing/pulling with the non- 18 dominant left upper extremity. Further, she is able to perform 19 occasional manipulation with the dominant right upper extremity 20 including fine fingering and handling while being limited to less 21 than occasional or rare manipulation with the left upper extremity. 22 Lastly, she is restricted from climbing ladders, ropes or scaffolds as 23 well as working at unprotected heights. 24 25 AR 15. Based on the VE’s testimony, the ALJ found that through the date last 26 insured, Plaintiff could perform jobs that existed in significant numbers in the 27 national economy, and was not therefore disabled. AR 20-21. 28 Plaintiff requested review of the ALJ’s decision. AR 7-8. The Appeals 2 1 Council denied review in July 2016, and the unfavorable ALJ decision became 2 the final decision of the Commissioner. See 20 C.F.R. § 404.984. This action 3 followed. 4 II. 5 DISCUSSION Plaintiff argues that the ALJ erred (1) in discounting the opinion of 6 7 consultative examiner, Dr. Xiao-Quan Yuan, and (2) in the step-five analysis. 8 Joint Stipulation (“JS”) at 3. For the reasons discussed below, the Court finds 9 that the ALJ did not err in discounting Dr. Yuan’s opinion, and any step-five 10 error was harmless. 11 A. 12 13 Dr. Yuan’s Opinion Plaintiff argues that the ALJ erred by according little weight to Dr. Yuan’s opinion. JS at 3-8. 14 1. Applicable Law 15 Three types of physicians may offer opinions in Social Security cases: 16 those who treated the plaintiff, those who examined but did not treat the 17 plaintiff, and those who did neither. See 20 C.F.R. § 404.1527(c);2 Lester v. 18 Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as amended Apr. 9, 1996). A treating 19 physician’s opinion is generally entitled to more weight than an examining 20 physician’s opinion, which is generally entitled to more weight than a 21 nonexamining physician’s. Lester, 81 F.3d at 830. When a treating or examining 22 physician’s opinion is uncontroverted by another doctor, it may be rejected only 23 24 25 26 27 28 2 Social Security Regulations regarding the evaluation of opinion evidence were amended effective March 27, 2017. Where, as here, the ALJ’s decision is the final decision of the Commissioner, the reviewing court generally applies the law in effect at the time of the ALJ’s decision. See Fox v. Berryhill, No. 16-4738, 2017 WL 3197215, at *3 n.6 (C.D. Cal. July 27, 2017). Accordingly, the Court applies the version of 20 C.F.R. § 404.1527 in effect at the time of the ALJ’s March 2015 decision. 3 1 for “clear and convincing reasons.” See Carmickle v. Comm’r Soc. Sec. Admin., 2 533 F.3d 1155, 1164 (9th Cir. 2008) (citing Lester, 81 F.3d at 830-31). Where 3 such an opinion is contradicted, the ALJ must provide only “specific and 4 legitimate reasons” for discounting it. Id.; see also Garrison v. Colvin, 759 F.3d 5 995, 1012 (9th Cir. 2014). Moreover, “[t]he ALJ need not accept the opinion of 6 any physician, including a treating physician, if that opinion is brief, conclusory, 7 and inadequately supported by clinical findings.” Thomas v. Barnhart, 278 F.3d 8 947, 957 (9th Cir. 2002); accord Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th 9 Cir. 2001). The weight accorded to a physician’s opinion depends on whether it 10 is accompanied by adequate explanation, the nature and extent of the treatment 11 relationship, and consistency with the record as a whole, among other things. 20 12 C.F.R. § 404.1527(c). 13 2. a. 14 15 Relevant Facts Consultative Examiner Dr. Nahel Al Bouz On May 26, 2013, Dr. Bouz, a board certified internist, examined Plaintiff 16 at the Social Security Administration’s (“SSA”) request. AR 628-33. Dr. Bouz 17 observed “[r]eflex sympathetic dystrophy of the left hand status post two carpal 18 tunnel surgery.” AR 632. Plaintiff had full range of motion of the left hand but 19 significant hyperesthesia and weakness of the left handgrip. Id. Plaintiff was able 20 to make a fist and oppose all fingers with both thumbs. Id. 21 With regard to Plaintiff’s right hand, Dr. Bouz observed “carpal tunnel 22 syndrome” with irritated nerves on the right side and a positive carpel tunnel 23 syndrome test. Id. “[T]here was no thenar or hypothenar muscular atrophy and 24 [Plaintiff] was able to make a full fist and oppose all fingers with the right 25 thumb. She had a good strength in the hand.” Id.3 Dr. Bouz also diagnosed 26 27 28 3 “Thenar” refers to the base of the thumb, and “hypothenar” refers to the muscles that control the little finger. 4 1 Plaintiff with hypertension and diabetes with normal foot examination. Id. 2 Based on the examination, Dr. Bouz concluded that Plaintiff had several 3 physical limitations: she could push, pull, lift and carry 20 pounds occasionally 4 and 10 pounds frequently, and she could use her hands for fine and gross 5 manipulation only frequently. AR 633. Dr. Bouz concluded that Plaintiff had no 6 other physical limitations. See id. 7 8 9 b. Medical Consultants On June 25, 2013, at the SSA’s request, Dr. Richard Surrusco reviewed Plaintiff’s medical records and opined that Plaintiff could lift and carry 20 10 pounds occasionally and 10 pounds frequently; stand, walk, and sit for 6 hours 11 in an 8-hour day; frequently climb ramps and stairs, balance, stoop, kneel, and 12 crouch; occasionally crawl; and never climb ladders, ropes, or scaffolds. AR 67- 13 68. Dr. Surrusco also opined that Plaintiff’s left hand was limited in handling 14 and fingering. AR 68. 15 On December 5, 2013, Dr. N. J. Rubaum reviewed Plaintiff’s medical 16 records on reconsideration and rendered a similar assessment. AR 81-83. Dr. 17 Rubaum agreed with all of Dr. Surrusco’s limitations but added that Plaintiff’s 18 ability to push and pull with her left hand was limited. AR 81. 19 20 c. Dr. Xiao-Quan Yuan On December 27, 2014, Dr. Yuan, a board certified neurologist, 21 performed a neurological evaluation of Plaintiff at the SSA’s request. AR 636- 22 44. Plaintiff’s chief complaint was bilateral carpal tunnel syndrome. AR 636. 23 Specifically, Plaintiff complained of constant burning in some of the fingers in 24 her left hand and pain in the palm when touching anything. Id. Upon 25 examination of her hands, Dr. Yuan noted “no clubbing, cyanosis or edema.” 26 AR 638. Further, he noted “no warmth, erythema or swelling.” Id. He also 27 observed that the range of motion in Plaintiff’s “upper and lower extremities is 28 grossly within normal limits.” Id. Further, motor strength in Plaintiff’s wrist 5 1 flexion and extension was 4/5. Id. Motor strength was 5/5 otherwise. Id. Based 2 on the above, Dr. Yuan diagnosed Plaintiff with bilateral carpal tunnel 3 syndrome with surgery complications in the left wrist. AR 639. Dr. Yuan opined 4 that Plaintiff could lift and carry 10 pounds occasionally and less than 10 pounds 5 frequently; could stand and walk less than 6 hours in an 8-hour day, but was not 6 limited in her ability to sit; and her use of both hands was severely limited. Id. 7 On January 3, 2015, Dr. Yuan completed a “Medical Source Statement 8 Of Ability To Do Work-Related Activities (Physical)” form. AR 641-44. Dr. 9 Yuan again opined that Plaintiff could lift and carry 10 pounds occasionally and 10 less than 10 pounds frequently; stand and walk less than 6 hours in an 8-hour 11 day; and sit without limitation. AR 641-42. Further, Dr. Yuan opined Plaintiff 12 was limited in her ability to push and pull with her upper extremities. AR 642. 13 Plaintiff could never balance, kneel, crouch, crawl, stoop, or climb ramps, stairs, 14 ladders, ropes, or scaffolds. Id. Dr. Yuan also opined that Plaintiff should be 15 limited to occasional reaching in all directions, handling, fingering, and feeling. 16 AR 643. Dr. Yuan concluded these limitations were a result of “constant pain, 17 burning sensation on both fingers and hands, and weakness of wrist 18 flexion/extension.” AR 642. 19 d. Medical Expert Dr. Arthur Brovender 20 At the hearing, Dr. Arthur Brovender testified as the ME. He had 21 reviewed Plaintiff’s medical record and testified as to Plaintiff’s physical 22 limitations. Dr. Brovender explicitly disagreed with Dr. Yuan’s conclusion and 23 opined that Plaintiff could lift and carry 20 pounds occasionally and 10 pounds 24 frequently. AR 35, 37. Further, Plaintiff’s use of her left upper extremity was 25 limited to rare handling, grasping and fingering, and occasional pushing and 26 pulling. AR 35-36. Plaintiff’s use of her right upper extremity was limited to 27 occasional handling, grasping and fingering. Finally, Dr. Brovender opined that 28 Plaintiff was not limited in her ability to reach. AR 35. 6 e. 1 2 The ALJ’s findings In determining Plaintiff’s RFC, the ALJ gave great weight to the opinions 3 of Dr. Brovender, Dr. Al Bouz, Dr. Surrusco and Dr. Rubaum. AR 19. The ALJ 4 gave little weight to Dr. Yuan’s opinion. Id. 5 3. Discussion 6 Plaintiff contends that the ALJ improperly rejected Dr. Yuan’s opinion. 7 JS at 3-8. Drs. Bouz, Surrusco, Rubaum, and Brovender’s opinions contradict 8 Dr. Yuan’s. Compare AR 639 with AR 35-37, 67-68, and 81-83. Dr. Yuan 9 opined that Plaintiff could lift and carry 10 pounds occasionally and less than 10 10 pounds frequently. AR 639. Drs. Bouz, Surrusco, Rubaum, and Brovender 11 opined that Plaintiff could carry 20 pounds occasionally and 10 pounds 12 frequently. AR 35-37, 67, 81. Because of the contradicting opinions, the ALJ 13 needed to provide “specific and legitimate” reasons for rejecting Dr. Yuan’s 14 opinion. See Garrison, 759 F.3d at 1012. The Court finds that the ALJ provided 15 specific and legitimate reasons supported by substantial evidence in the record 16 for discounting Dr. Yuan’s opinion. 17 First, the ALJ found that Dr. Yuan’s opinion was not supported by “the 18 medical record showing that [Plaintiff] did not have any other medical or 19 musculoskeletal issues such that she would be so significantly limited with 20 postural maneuvers or with lifting/carrying.” AR 19. Substantial evidence in the 21 record supports the ALJ’s determination. Plaintiff was diagnosed with bilateral 22 carpal tunnel syndrome in March 2008. AR 343. In January 2010, Plaintiff 23 underwent carpal tunnel release and partial nerve repair surgery. AR 432-34. 24 Although this surgery did not relieve Plaintiff’s symptoms, she received a 25 ganglion block injection in May 2010, which relieved her pain by 80% within 26 one month. AR 401. In October 2010, Plaintiff underwent another ganglion 27 block injection in her left wrist, which was the last treatment she received until 28 she sustained an injury in May 2014. AR 281. 7 1 Plaintiff argues that Dr. Yuan’s opinion was supported by the medical 2 record, citing to her complaints of constant pain and burning, surgeries to her 3 left wrist from which she did not fully recover, and an injury she sustained in 4 May 2014 that exacerbated the pain in her left wrist. JS at 6. Plaintiff’s argument 5 is meritless. The ALJ found that the record as a whole did not support Dr. 6 Yuan’s extreme limitations, not that Plaintiff had unlimited use of her hands. 7 Dr. Brovender’s testimony supports the ALJ’s finding: Dr. Brovender 8 specifically noted that the record does not support Dr. Yuan’s opinion on 9 Plaintiff’s lifting and carrying limitation. AR 36. Also, the ALJ explained that 10 the lack of treatment after October 2010 until Plaintiff’s injury in May 2014 11 suggests that Plaintiff’s symptoms “were resolved or her disorder was well 12 managed with medication.” AR 17. “A conservative course of treatment can 13 undermine allegations of debilitating pain.” Carmickle, 533 F.3d at 1162. 14 Although there might be an alternative explanation for the gap in treatment, the 15 ALJ’s conclusion must be upheld when the evidence is susceptible to more than 16 one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 17 2005). Last, while Plaintiff fell in May 2014 and injured her left wrist (AR 646), 18 she “last met the insured status requirements of the Social Security Act on 19 March 31, 2014.” AR 14. Plaintiff must prove that her disability existed prior to 20 that date, and therefore her later injury does not undermine the ALJ’s 21 determination or his weighing of the medical opinions. See Kirkruff v. Berryhill, 22 No. 15-02274, 2017 WL 1173910, at *8 (D. Or. Mar. 28, 2017) (finding no error 23 in ALJ’s rejection of Plaintiff’s symptom testimony about injury after date last 24 insured); Nobles v. Berryhill, No. 15-2525, 2017 WL 1037613, at *7 (E.D. Cal. 25 Mar. 17, 2017) (rejecting Plaintiff’s reliance on MRI where MRI reflected injury 26 after date last insured); Burr v. Colvin, No. 16-05356, 2016 WL 6803419, at *2 27 (W.D. Wash. Nov. 17, 2016) (disregarding physician opinions on limitations 28 from injury after date last insured). 8 1 Second, the ALJ explained that Dr. Yuan’s opinion is inconsistent with 2 his own clinical findings. AR 19. During his examination, Dr. Yuan noted that 3 there was “no clubbing, cyanosis or edema.” AR 638. Further, he noted “no 4 warmth, erythema or swelling.” Id. He also observed that the range of motion in 5 Plaintiff’s “upper and lower extremities is grossly within normal limits.” Id. 6 Further, motor strength in Plaintiff’s both wrist flexion and extension was 4/5. 7 Id. Motor strength was 5/5 otherwise. Id. Despite the unremarkable findings, 8 Dr. Yuan concluded that Plaintiff can lift and carry 10 pounds occasionally and 9 less than 10 pounds frequently. AR 639. An ALJ may discount a doctor’s 10 opinion if it is contradicted by his own findings. See Johnson v. Shalala, 60 F.3d 11 1428, 1433 (9th Cir. 1995). 12 Third, the ALJ explained that Dr. Yuan’s opinion was inconsistent with 13 the other doctors’ opinions. AR 19. As discussed above, the state agency 14 consultants, the other consultative examiner, and the ME all opined that 15 Plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently, 16 contradicting Dr. Yuan’s opinion. Compare AR 639 with AR 35-37, 67-68, and 17 81-83. Further, the ME explicitly opined that Dr. Yuan’s opinion is not 18 supported by the record. 19 Plaintiff argues that Dr. Yuan’s opinion should control, because he was an 20 examining physician. JS at 6. She also argues that Dr. Yuan’s opinion should 21 outweigh Dr. Bouz’s opinion, because it is more recent. Id. at 7. 22 Opinions of non-examining physicians may serve as substantial evidence 23 when the opinions are consistent with independent clinical findings or other 24 evidence in the record. Thomas, 278 F.3d at 957. Here, the non-examining 25 doctors reviewed Plaintiff’s medical records and reached the same conclusions 26 regarding her physical limitations. As such, their opinions constitute substantial 27 evidence. Also, Dr. Yuan’s examination may be more recent, but it occurred 28 after Plaintiff’s date last insured. Thus, unlike Dr. Yuan, Dr. Bouz examined 9 1 Plaintiff during the relevant time period. Accordingly, the ALJ’s citation to four 2 other doctors’ opinions that conflicted with Dr. Yuan’s was a specific and 3 legitimate reason for rejecting it. 4 B. 5 The ALJ’s Step-Five Assessment Plaintiff contends that the ALJ improperly determined that she could 6 perform alternative work through the date last insured, because the VE did not 7 explain the conflict between his testimony and the Dictionary of Occupational 8 Titles (“DOT”) occupational requirements. See JS at 16-19. 9 10 1. Applicable Law At step five of the sequential evaluation process, the Commissioner must 11 demonstrate that the claimant can perform work that exists in “significant 12 numbers” in the national or regional economy, taking into account the 13 claimant’s RFC, age, education, and work experience. Tackett v. Apfel, 180 14 F.3d 1094, 1100-01 (9th Cir. 1999); 20 C.F.R. § 404.1560(c). In making a 15 disability determination, the Dictionary of Occupational Titles (“DOT”) is the 16 primary source for “information about the requirements of work in the national 17 economy.” Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007) (citing SSR 18 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000)). The ALJ may also use VE 19 testimony to obtain occupational evidence. Id. 20 When a VE’s testimony presents an “apparent or obvious” conflict with a 21 DOT occupation, the ALJ “must elicit a reasonable explanation for the conflict 22 before relying on the [expert’s] evidence to support a determination or decision 23 about whether the claimant is disabled.” SSR 00-4p, 2000 WL 1898704, at *2; 24 Gutierrez v. Colvin, 844 F.3d 804, 807 (9th Cir. 2016). Failure to perform this 25 step is procedural error. Massachi, 486 F.3d at 1153-54 & n.19. 26 2. Relevant Facts 27 At the hearing, the VE identified Plaintiff’s past relevant work as a 28 marker, department manager, and stock clerk. AR 54. The ALJ presented the 10 1 following hypothetical to the VE: 2 an individual the same age and education as [Plaintiff] with past 3 relevant work experience in the positions listed . . . limited to light 4 work activities; frequent overhead reaching on the non-dominant 5 left side; occasional pushing or pulling on the non-dominant left 6 side; less than occasional manipulation [handling and fingering] 7 on the non-dominant left side; occasional manipulation [handling 8 and fingering] on the dominant right side; no ladders, ropes or 9 scaffolds; no unprotected heights. 10 11 AR 55. The VE opined that the hypothetical individual could not perform 12 Plaintiff’s past relevant work. AR 56. The VE further opined that “with 13 occasional fine fingering for the right [hand] and reaching,” there would be 14 other work in significant numbers in the national economy as a furniture rental 15 consultant (DOT 295.357-018) and counter clerk (DOT 249.366-010). Id. The 16 ALJ specifically asked the VE about conflicts with the DOT. AR 57. The VE 17 stated that there were no conflicts. Id. Plaintiff’s counsel did not ask the VE any 18 questions. Id. 19 In his written decision, the ALJ determined, under SSR 00-4P, that the 20 VE’s testimony was “consistent with the information contained in the [DOT].” 21 AR 21. Based on the VE’s testimony, the ALJ found that, before the date last 22 insured, Plaintiff had been able to perform work that existed in significant 23 numbers in the national economy—i.e., as a furniture rental consultant or 24 counter clerk. AR 20-21. 25 3. Analysis 26 Plaintiff contends that the ALJ erred in determining that she could have 27 worked as a furniture rental consultant and counter clerk. See JS at 16-19. 28 Plaintiff argues that the DOT descriptions of those jobs require occasionally 11 1 bilateral reaching, fingering, and handling. Id. at 17. Plaintiff points to her left 2 hand restrictions and argues that the VE should have explained the conflict 3 between her RFC and the DOT descriptions. See id. at 16-19. 4 “[N]ot all potential conflicts between a [VE’s] job suitability 5 recommendation” and the DOT’s job description “will be apparent or obvious,” 6 and the ALJ “need only follow up on those that are.” Gutierrez, 844 F.3d at 7 807-08. Accordingly, “[f]or a difference between an expert’s testimony and the 8 [DOT] to be fairly characterized as a conflict, it must be obvious and apparent.” 9 Id. at 808. “This means that the testimony must be at odds with the [DOT’s 10 description] of job requirements that are essential, integral, or expected.” Id. 11 “[T]asks that aren’t essential, integral, or expected parts of a job are less likely to 12 qualify as apparent conflicts that the ALJ must ask about.” Id. 13 Accordingly, the ALJ “must ask follow up questions of a vocational 14 expert when the expert’s testimony is either obviously or apparently contrary to 15 the [DOT], but the obligation doesn’t extend to unlikely situations or 16 circumstances.” Id. Thus, “where the frequency or necessity of a [job’s] task is 17 unlikely and unforeseeable . . . there’s no [such] obligation.” Id. Courts may use 18 their “common experience” in this analysis. Lamear v. Berryhill, 865 F.3d 1201, 19 1205 (9th Cir. 2017). 20 Here, the DOT describes the jobs identified by the VE as follows: 21 Furniture Rental Consultant: Rents furniture and accessories 22 to customers: Talks to customer to determine furniture preferences 23 and requirements. Guides or accompanies customer through 24 showroom, 25 compatibility of various styles and colors of furniture items. 26 Compiles list of customer-selected items. Computes rental fee, 27 explains rental terms, and presents list to customer for approval. 28 Prepares order form and lease agreement, explains terms of lease to answers questions, 12 and advises customer on 1 customer, 2 information from customer. Forwards forms to credit office for 3 verification of customer credit status and approval of order. Collects 4 initial payment from customer. Contacts customers to encourage 5 followup transactions. May visit commercial customer site to solicit 6 rental contracts, or review floor plans of new construction and 7 suggest suitable furnishings. May sell furniture or accessories. 8 and obtains customer signature. Obtains credit DOT 295.357-018, 1991 WL 672589. 9 Counter Clerk: Receives film for processing, loads film into 10 equipment that automatically processes film for subsequent photo 11 printing, and collects payment from customers of photofinishing 12 establishment: Answers customer's questions regarding prices and 13 services. Receives film to be processed from customer and enters 14 identification data and printing instructions on service log and 15 customer order envelope. Loads film into equipment that 16 automatically processes film, and routes processed film for 17 subsequent photo printing. Files processed film and photographic 18 prints according to customer's name. Locates processed film and 19 prints for customer. Totals charges, using cash register, collects 20 payment, and returns prints and processed film to customer. Sells 21 photo supplies, such as film, batteries, and flashcubes. 22 DOT 249.366-010, 1991 WL 672323. Both occupations require “occasional” 23 reaching, handling, and fingering. Id.; DOT 295.357-018, 1991 WL 672589. 24 Plaintiff’s RFC limited her to frequent overhead reaching with her left 25 upper extremity and “less than occasional or rare” manipulation with her left 26 upper extremity. There is no conflict between the DOT descriptions and 27 Plaintiff’s “frequent” ability to reach on her left side. The question, therefore, is 28 whether a conflict exists between the occupations’ requirement of “occasional” 13 1 handling and fingering, and Plaintiff’s limitation to “rare” manipulation with 2 her left side.4 The SSA has defined “handling” as “seizing, holding, grasping, 3 turning or otherwise working primarily with the whole hand or hands.” SSR 85- 4 15, 1985 WL 56857, at *7 (Jan. 1, 1985) (emphasis added). “Fingering involves 5 picking, pinching, or otherwise working primarily with the fingers.” Id. Given these ambiguous definitions and the DOT’s descriptions, the Court 6 7 concludes that while an obvious conflict may exist between the RFC and the 8 counter clerk requirements, any error is harmless because no apparent conflict 9 exists with the furniture rental consultant requirements. Fingering and handling 10 film with both hands would likely be an integral part of a counter clerk’s job; it 11 would be hard to load film into equipment, for example, with one hand. It is far 12 from obvious, however, that an essential part of being a furniture rental 13 consultant would involve bilateral fingering or handling. The VE testified that 14 there are 22,000 furniture rental consultant positions nationally, and Plaintiff 15 does not contest the sufficiency of this number. See Gutierrez v. Comm’r of Soc. 16 Sec. Admin., 740 F.3d 519, 527-29 (9th Cir. 2014) (“A finding of 25,000 jobs 17 likely does not fall into the category of ‘isolated jobs’ existing in ‘very limited 18 numbers.’”). Thus, any error in failing to ask the VE to resolve the counter clerk 19 error was harmless. See Buckins v. Berryhill, 706 F. App’x 380, 381 (9th Cir. 20 2017) (finding ALJ erred in failing to asking VE to resolve conflicts between 21 opinion and DOT, but error was harmless because there was no conflict as to 22 other occupations identified by VE that existed in significant numbers in 23 national economy). 24 /// 25 /// 26 27 28 4 The ALJ told the VE that by “manipulation,” he meant “handling or fingering.” See AR 55-56. 14 1 III. 2 CONCLUSION 3 4 For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. 5 6 Dated: February 23, 2018 __________________________ DOUGLAS F. McCORMICK United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15
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