Cesar Anthony Vazquez v. Carolyn W. Colvin, No. 8:2016cv02078 - Document 35 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF COMMISSIONER by Magistrate Judge Alexander F. MacKinnon. IT THEREFORE IS ORDERED that Judgment be entered affirming the decision of the Commissioner and dismissing this action with prejudice. (See document for further details.) (sbou)
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Cesar Anthony Vazquez v. Carolyn W. Colvin Doc. 35 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CESAR ANTHONY VAZQUEZ, 12 Plaintiff, 13 v. 14 15 Case No.: SA CV 16-02078 AFM MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF COMMISSIONER NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 Defendant. 17 18 19 I. BACKGROUND 20 Plaintiff Cesar Anthony Vazquez filed an application for disability benefits 21 under Title II of the Social Security Act on June 26, 2013. After denial on initial 22 review and on reconsideration, a hearing took place before an Administrative Law 23 Judge (“ALJ”) on May 29, 2015. In a written decision dated July 10, 2015, the ALJ 24 found that Plaintiff was not under a disability within the meaning of the Social 25 Security Act (“the Act”) since June 26, 2013, the date the application was filed. 26 The Appeals Council declined to set aside the ALJ’s unfavorable decision in a 27 notice dated September 21, 2016. Plaintiff filed a Complaint herein on 28 Dockets.Justia.com 1 September 29, 2017, seeking review of the Commissioner’s denial of his 2 application for benefits. 3 In accordance with the Court’s Order Re: Procedures in Social Security 4 Appeal, the Plaintiff filed a memorandum in support of the complaint on 5 September 29, 2017, (“Pl. Mem.”); the Commissioner filed a memorandum in 6 support of her answer on December 22, 2017 (“Def. Mem.”); Plaintiff a reply on 7 January 5, 2018. This matter now is ready for decision. 8 9 II. DISPUTED ISSUES As reflected in the parties’ memoranda, the disputed issues raised are as 10 11 follows: 12 1. 13 testimony. 14 2. 15 Vocational Expert’s testimony and the Dictionary of Terms (“DOT”). Whether the ALJ failed to properly consider the claimant’s Whether the ALJ failed to resolve a conflict between the 16 17 III. STANDARD OF REVIEW 18 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 19 determine whether the Commissioner’s findings are supported by substantial 20 evidence and whether the proper legal standards were applied. See Treichler v. 21 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Substantial 22 evidence means “more than a mere scintilla” but less than a preponderance. See 23 Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d 24 1028, 1035 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a 25 reasonable mind might accept as adequate to support a conclusion.” Richardson, 26 402 U.S. at 401. This Court must review the record as a whole, weighing both the 27 evidence that supports and the evidence that detracts from the Commissioner’s 28 conclusion. Lingenfelter, 504 F.3d at 1035. Where evidence is susceptible of more 2 1 than one rational interpretation, the Commissioner’s decision must be upheld. See 2 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 3 4 IV. FIVE-STEP EVALUATION PROCESS 5 The Commissioner (or ALJ) follows a five-step sequential evaluation process 6 in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester 7 v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995), as amended April 9, 1996. In the 8 first step, the Commissioner must determine whether the claimant is currently 9 engaged in substantial gainful activity; if so, the claimant is not disabled and the 10 claim is denied. Id. If the claimant is not currently engaged in substantial gainful 11 activity, the second step requires the Commissioner to determine whether the 12 claimant has a “severe” impairment or combination of impairments significantly 13 limiting his ability to do basic work activities; if not, a finding of nondisability is 14 made and the claim is denied. Id. If the claimant has a “severe” impairment or 15 combination of impairments, the third step requires the Commissioner to determine 16 whether the impairment or combination of impairments meets or equals an 17 impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. part 18 404, subpart P, appendix 1; if so, disability is conclusively presumed and benefits 19 are awarded. Id. If the claimant’s impairment or combination of impairments does 20 not meet or equal an impairment in the Listing, the fourth step requires the 21 Commissioner to determine whether the claimant has sufficient “residual functional 22 capacity” to perform his past work; if so, the claimant is not disabled and the claim 23 is denied. Id. The claimant has the burden of proving that he is unable to perform 24 past relevant work. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). If the 25 claimant meets this burden, a prima facie case of disability is established. Id. The 26 Commissioner then bears the burden of establishing that the claimant is not 27 disabled, because he can perform other substantial gainful work available in the 28 national economy. Id. The determination of this issue comprises the fifth and final 3 1 step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 2 828 n.5; Drouin, 966 F.2d at 1257. 3 4 V. THE ALJ’S APPLICATION OF THE FIVE-STEP PROCESS 5 At step one, the ALJ found that Plaintiff had not engaged in substantial 6 gainful activity since June 26, 2013, his application date. (Administrative Record 7 (“AR”) 38.) At step two, the ALJ found that Plaintiff had the following severe 8 impairments: left shoulder acute rotator cuff tear and acromioclavicular arthritis; 9 right shoulder rotator cuff tear; lumbar degenerative disc disease; and history of L4- 10 5 discectomy in 2007 with subsequent redo in 2008. (Id.) At step three, the ALJ 11 found that Plaintiff did not have an impairment or combination of impairments that 12 meets or medically equals the severity of one of the listed impairments. (AR 39.) At 13 step four, the ALJ found that Plaintiff had the following residual functional capacity 14 (“RFC”): occasionally able to lift and/or carry 20 pounds, frequently lift and/or 15 carry 10 pounds; able to stand and/or walk six hours in an eight-hour workday; able 16 to sit six hours in an eight-hour workday; occasionally push or pull with bilateral 17 upper extremities; frequently climb ramps/stairs, stoop, kneel, crouch, and crawl; 18 occasionally climb ladders/ropes/scaffolds; never reach overhead with the left upper 19 extremity; and occasionally reach overhead with the right upper extremity. (AR 39- 20 42.) The ALJ determined that Plaintiff was capable of performing his past relevant 21 work as a salesperson and, therefore, was not disabled. (AR 42-43.) 22 23 VI. DISCUSSION 24 A. 25 An ALJ’s assessment of pain severity and claimant credibility is entitled to 26 “great weight.” Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989). Where the 27 claimant has produced objective medical evidence of an impairment which could 28 reasonably be expected to produce some degree of pain and/or other symptoms, and Whether the ALJ properly considered the claimant’s testimony. 4 1 the record is devoid of any affirmative evidence of malingering, the ALJ may reject 2 the claimant’s testimony regarding the severity of the claimant’s pain and/or other 3 symptoms only if the ALJ makes specific findings stating clear and convincing 4 reasons for doing so. See Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986); 5 see also Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). Since the 6 Commissioner has not argued that there was evidence of malingering and that a 7 lesser standard consequently should apply, the “clear and convincing” standard 8 applies to the ALJ’s adverse credibility determination. See Burrell v. Colvin, 775 9 F.3d 1133, 1136 (9th Cir. 2014) (applying “clear and convincing” standard where 10 the government did not argue that a lesser standard should apply based on evidence 11 of malingering). 12 “General findings [regarding a claimant’s credibility] are insufficient; rather, 13 the ALJ must identify what testimony is not credible and what evidence undermines 14 the claimant’s complaints.” Burrell, 775 F.3d at 1138. An ALJ’s findings “‘must be 15 sufficiently specific to allow a reviewing court to conclude the adjudicator rejected 16 the claimant’s testimony on permissive grounds and did not arbitrarily discredit a 17 claimant’s testimony regarding pain.’” Brown-Hunter v. Colvin, 806 F.3d 487, 493 18 (9th Cir. 2015) (quoting Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991)). 19 A reviewing court should not have to speculate regarding the ALJ’s grounds for 20 rejecting a claimant’s subjective symptom testimony, Bunnell, 947 F.2d at 346, and 21 “implicit” findings that a claimant’s testimony is not credible are insufficient. 22 Albalos v. Sullivan, 907 F.2d 871, 874 (9th Cir. 1990). 23 Here the ALJ concluded that she did not believe that Plaintiff’s symptoms 24 were as severe as he alleged because Plaintiff did not receive treatment generally 25 expected of a person suffering from a disabling impairment. (AR 41-42.) 26 Specifically, the ALJ relied upon: (1) significant gaps in Plaintiff’s medical 27 treatment, with only infrequent trips to the doctor for his alleged disabling 28 symptoms; (2) Plaintiff’s previous surgery was generally effective in relieving the 5 1 symptoms; and (3) Plaintiff’s use of medications did not suggest debilitating 2 symptoms. (AR 41-43.) Plaintiff argues that these reasons were not sufficient to 3 discredit his testimony. For the reasons discussed below, the Court finds that the 4 reasons were specific and legitimate bases for an adverse credibility determination. 5 The first reason offered by the ALJ is that Plaintiff’s record had significant 6 gaps in treatment and displayed “relatively infrequent trips to the doctor for 7 allegedly disabling symptoms.” (AR 41-42.) Plaintiff argues that these gaps in 8 treatment were the result of Plaintiff’s becoming uninsured, and points to his 9 testimony that he could not afford to see doctors between October 2013 and 10 February 2015. (See AR 73-74.) Plaintiff also notes that a person need not be totally 11 disabled or comatose to qualify as disabled. See Cooper v. Bowen, 815 F.2d 557, 12 561 (9th Cir. 1987). 13 When assessing credibility, the ALJ may properly rely on inadequately 14 explained or unexplained failure to seek treatment. See Molina v. Astrue, 674 F.3d 15 1104, 1113 (9th Cir. 2012). Notwithstanding Plaintiff’s proffered explanation, the 16 Commissioner correctly points out that the medical record reveals significant gaps 17 during which the Plaintiff did not seek treatment for many of his alleged 18 musculoskeletal impairments – and in particular, his back which served as a chief 19 basis for his disability – even after Plaintiff became re-insured. (See AR 384-421, 20 488-539.) The medical visits occurring after February 2015 indicate Plaintiff sought 21 treatment for his clavicle and right shoulder injuries sustained when he fell from the 22 balcony. (AR 389-390, 393-395, 401, 404, 416, 436.) Plaintiff’s explanation that he 23 was unable to obtain treatment because he was uninsured does not entirely explain 24 his extended failure to seek treatment or to mention his alleged back pain during 25 physical examinations. As such, the ALJ appropriately took this fact into 26 consideration when deciding to discount the Plaintiff’s testimony. See Marsh v. 27 Colvin, 792 F.3d 1170, 1173 n. 2 (9th Cir. 2015). 28 6 1 The second reason offered by the ALJ is that Plaintiff’s surgeries were 2 generally effective in relieving his symptoms. (AR 42-43.) Plaintiff complains that 3 the ALJ failed to identify the page in the record where petitioner testified that the 4 surgery was effective. He also argues that there was testimony contradicting the 5 ALJ’s statement, namely, Plaintiff’s testimony that his back surgery “obviously” 6 made him feel worse because it resulted in permanent nerve damage down his leg. 7 (AR 58.)1 8 Contrary to Plaintiff’s suggestion, the ALJ did not mischaracterize the 9 evidence. During the hearing, Plaintiff testified that the surgery on his left shoulder 10 was successful and that his shoulder had “completely healed” six to eight months 11 after the surgery. (AR 41-42, 62, 69-70.) Plaintiff’s medical records confirm that 12 his left shoulder pain improved after surgery. (AR 408.) With regard to Plaintiff’s 13 back impairment, the record reveals he underwent back surgery in 2008. (AR 58, 14 327.) The only reference to back pain in the record is one occasion in June 2012, 15 when Plaintiff informed his physician his back pain “fluctuated” and that symptoms 16 were relieved by massage. (AR 311.) Notably, Plaintiff’s physician did not 17 document symptoms of back pain during examinations in July 2013 or April 2015. 18 (AR 300-302, 401-403.) Furthermore, Plaintiff testified that at the time of the 19 hearing that he was receiving treatment for his right shoulder and collarbone as a 20 result of a recent fall from a balcony; he did not mention undergoing continued 21 treatment for his back. (See AR 61, 63, 74-75.) In fact, Plaintiff said that although 22 the fall from the balcony had caused him to suffer back pain so that he remained in 23 bed for about a week, Plaintiff’s back had recovered and he “felt better.” (AR 70.) 24 Thus, the record contains substantial evidence supporting the finding that Plaintiff’s 25 surgeries were generally effective in relieving Plaintiff’s pain. See Celaya v. Halter, 26 1 27 28 Plaintiff’s counsel acknowledged that Plaintiff’s medical records contained no documentation confirming Plaintiff’s alleged nerve damage in his left leg. (AR 5657.) 7 1 332 F.3d 1177, 1181 (9th Cir. 2003) (concluding that the ALJ appropriately 2 rejected the plaintiff’s subjective complaints of pain by relying upon medical 3 evidence suggesting that the underlying complaints upon which her reports of pain 4 were predicated had come under control). Further, where the evidence could be 5 subject to more than one interpretation, the ALJ’s interpretation must be upheld if 6 that interpretation is rational, as it is here. See Burch v. Barnhart, 400 F.3d 676, 7 680-81 (9th Cir. 2005). 8 Third, the ALJ found that Plaintiff’s “use of medication does not suggest the 9 presence of impairments which is more limiting than found in this decision.” (AR 10 42.). 11 To the extent that the ALJ determined that Plaintiff’s medication use 12 suggested that his pain was satisfactorily resolved, the record supports that finding. 13 According to Plaintiff, he had been “constantly treated” for his back pain and the 14 numbness in his left leg and “that’s why I’m taking the pain medication.” (AR 57.) 15 Yet, Plaintiff received no prescription pain medication during the period from 16 approximately October 2013 to the end of 2014. (AR 73-74.) According to 17 Plaintiff, during this time, he took prescription painkillers “as needed, not as regular 18 as regular as you’re supposed to.” (AR 74.) Plaintiff explained that he took the 19 prescription medication once every two or three days and also took some over-the- 20 counter pain medication. (AR 74.) Though it occurred during the period in which 21 the Plaintiff was uninsured, the ALJ properly considered it because it suggests that 22 Plaintiff’s need for pain medication is not as significant as he alleges and that his 23 impairments can be effectively controlled with medication. See Parra v. Astrue, 24 481 F.3d 742, 751 (9th Cir. 2007) (finding that treatment with over-the-counter 25 pain medication is sufficient to discount a claimant's testimony regarding the 26 severity of the impairment); Warre v. Comm’r of Soc. Sec., 439 F.3d 1001, 1006 27 (9th Cir. 2006) (“Impairments that can be controlled effectively with medication are 28 not disabling for the purpose of determining eligibility for SSI benefits”); see also 8 1 Abreu v. Astrue, 303 F. App’x. 556, 558 (9th Cir. 2009) (holding that substantial 2 evidence supported the ALJ’s credibility findings where ALJ observed that 3 claimant mostly saw a doctor for medication refills and opined that “[f]or the most 4 part, medication regimens appear to be effective in pain control”). 5 The ALJ also found that there was evidence that Plaintiff was “not entirely 6 compliant in taking prescribed medications,” and explained that his non-compliance 7 suggested that his impairments were not as limiting as he claimed them to be. (AR 8 42.) Plaintiff contends that the ALJ erroneously considered his failure to take his 9 prescribed hypertension medication because the ALJ did not consider hypertension 10 to be a condition capable of reducing Plaintiff’s RFC. 11 To begin with, it is not clear that the ALJ could not consider Plaintiff’s non- 12 compliance with regard to his hypertension medication in making a credibility 13 determination. See generally Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (an 14 ALJ may consider a claimant’s failure to follow prescribed pain treatment as a basis 15 for finding the complaint unjustified or exaggerated). Nevertheless, assuming that 16 the ALJ improperly relied upon Plaintiff’s failure to take his prescribed 17 hypertension medication, the error is harmless in light of the other sufficiently clear 18 and convincing evidence supporting her credibility determination. See Bray v. 19 Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (where the ALJ 20 presented four other independent proper bases for discounting the plaintiff’s 21 testimony, reliance on the plaintiff’s continued smoking to discredit her, even if 22 erroneous, amounts to harmless error); Batson v. Comm’r of Soc. Sec. Admin., 359 23 F.3d 1190, 1197 (9th Cir. 2004) (concluding that, even if the record did not support 24 one of the ALJ’s stated reasons for disbelieving a claimant’s testimony, the error 25 was harmless). 26 Finally, Plaintiff contends that the ALJ erred in discounting Plaintiff’s daily 27 activities as evidence of his limitations. The ALJ addressed Plaintiff’s daily 28 activities as follows: 9 1 Although the claimant has described daily activities which are fairly 2 limited, two factors weigh against considering these allegations to be 3 strong evidence in favor of finding the claimant disabled. First, 4 allegedly limited daily activities cannot be objectively verified with 5 any reasonable degree of certainty. Secondly, even if the claimant’s 6 daily activities are truly as limited as alleged, it is difficult to attribute 7 that degree of limitation to the claimant’s medical condition, as 8 opposed to other reasons, in view of the relatively weak medical 9 evidence and other factors discussed in this decision. 10 (AR 42.) 11 Because it was not the sole reason for her decision, the ALJ permissibly 12 considered the lack of objective medical evidence supporting Plaintiff’s alleged 13 limitations as negatively affecting his credibility. See Burch, 400 F.3d at 681 14 (“Although lack of medical evidence cannot form the sole basis for discounting 15 pain testimony, it is a factor that the ALJ can consider in his credibility analysis.”). 16 The ALJ, however, could not properly reject Plaintiff’s daily activities 17 merely because they “could not be objectively verified.” See Moseley v. Colvin, 18 2013 WL 6044316, at *2 (C.D. Cal. Nov. 12, 2013); Bernal v. Astrue, 2011 WL 19 1790052, at *6 (C.D. Cal. May 9, 2011); Haller v. Astrue, 2008 WL 4291448, at *5 20 (E.D. Cal. Sept. 18, 2008). Nevertheless, as discussed above, the error was harmless 21 because the ALJ provided other sufficiently clear and convincing legitimate reasons 22 for her credibility assessment. 23 24 B. Whether the ALJ failed to resolve a conflict between the Vocational Expert’s testimony and the DOT. 25 Plaintiff argues that the ALJ failed to resolve a conflict that was created 26 between the vocational expert’s (“VE”) testimony and the DOT. In relevant part, 27 the ALJ determined that Plaintiff had an RFC that allowed for reaching overhead 28 with his right arm occasionally, and never allowed for reaching overhead with his 10 1 left arm. During the hearing, the VE testified that a claimant with Plaintiff’s RFC 2 could perform Plaintiff’s past relevant work as a salesman, graphic art (DOT 3 254.251-010) an occupation which the DOT notes requires “frequent reaching.” 4 Reaching is defined in Social Security Ruling 85-15 as “extending the hands and 5 arms in any direction.” The VE did not explain how a person limited to reaching 6 overhead with his right arm occasionally and never with his left arm, could perform 7 a job that requires frequent reaching. Plaintiff notes that the ALJ has a duty to fully 8 and fairly develop the record, see Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 9 1983), and argues that the ALJ’s failure to solicit the VE’s explanation for the 10 discrepancy amounts to reversible error. The Commissioner agrees that an apparent 11 conflict between VE testimony and the DOT must be resolved, but argues that there 12 is no such conflict in this case.2 13 As the Ninth Circuit has made clear, if a VE’s “opinion that the applicant is 14 able to work conflicts with, or seems to conflict with, the requirements listed in the 15 Dictionary, then the ALJ must ask the expert to reconcile the conflict before relying 16 on the expert to decide if the claimant is disabled.” Gutierrez v Colvin, 844 F.3d 17 804, 807 (9th Cir. 2016); see Massachi v. Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 18 2007) (an ALJ must ask a VE if the evidence he or she is providing is consistent 19 with the DOT and must “obtain a reasonable explanation for any apparent 20 conflict”). A conflict must be “obvious or apparent” to trigger the ALJ obligation to 21 inquire further. Gutierrez, 844 F.3d at 808. 22 2 23 24 25 26 27 28 The Commissioner’s contention that the Plaintiff waived this issue by failing to raise it at the administrative hearing is unpersuasive. Plaintiff’s failure to raise a DOT conflict during the administrative hearing does not constitute a waiver because the ALJ retains an affirmative duty to reconcile apparent conflicts between the VE and the DOT through testimony. See Lamear v. Berryhill, 865 F.3d 1201, 1206 (9th Cir. 2017); see also Shaibi v. Berryhill, 870 F.3d 874, 882 (9th Cir. 2017) (“It is true that an ALJ is required to investigate and resolve any apparent conflict between the VE’s testimony and the DOT, regardless of whether a claimant raises a conflict before the agency.”) (citing SSR 00-04p). 11 1 Here, the VE testified that her opinion was consistent with the DOT. (AR 76, 2 82.) Nevertheless, the Court must determine whether an apparent conflict existed 3 such that the ALJ was required to obtain an explanation from the VE. 4 For a difference between an expert's testimony and the Dictionary’s 5 listings to be fairly characterized as a conflict, it must be obvious or 6 apparent. This means that the testimony must be at odds with the 7 Dictionary’s listing of job requirements that are essential, integral, or 8 expected. 9 Id. Where “the job itself is a familiar one – like cashiering – less scrutiny by the 10 ALJ is required.” Id. It follows that the more obscure the job, the less likely 11 common experience will dictate the result. Lamear v. Berryhill, 865 F.3d 1201, 12 1205 (9th Cir. 2017); see, e.g., Cochrane v. Berryhill, 260 F. Supp. 3d 1317, 1336 13 (D. Or. 2017) (“[W]hile anyone who has walked into a corner grocery store may be 14 able to observe whether a cashier frequently reaches overhead, the same cannot be 15 said for a photofinishing counter clerk which is a more specific position.”). 16 The decision in Gutierrez is instructive to the Court’s analysis. There, the 17 claimant could not reach above shoulder level with her right arm. 844 F.3d at 807. 18 The VE opined that she could work as a cashier. The ALJ did not specifically 19 question the VE about how the claimant could perform that work in light of her 20 inability to reach overhead with her right arm. Id. The claimant argued that the ALJ 21 should have recognized a conflict between the DOT and the VE’s testimony and 22 should have questioned the VE more closely. Id. The Ninth Circuit rejected the 23 argument, explaining that “reaching” generally connotes extending the hands in any 24 direction and not all jobs involve reaching overhead. Id. The Court concluded that 25 the ALJ did not commit error because, based on common experience, it is “unlikely 26 and unforeseeable” that a cashier would need to reach overhead, and even more rare 27 for one to need to reach overhead with both arms. Id. at 808-09 & 809 n.2. 28 12 1 Here, the VE testified that Plaintiff could perform work as a salesman, 2 graphic art (DOT 254.251-010). The DOT’s description of the occupation’s duties 3 states that a salesman, graphic art: 4 Sells graphic art, such as layout, illustration, and photography, to 5 advertising agencies and industrial organizations for use in advertising 6 and illustration: Plans and sketches layouts to meet customer needs. 7 Advises customer in methods of composing layouts, utilizing 8 knowledge of photographic and illustrative art and printing 9 terminology. Informs customer of types of artwork available by 10 providing samples. Computes job costs. Delivers advertising or 11 illustration proofs to customer for approval. May write copy as part of 12 layout. 13 DOT 254.251-010. 14 Nothing in the description of the position of salesman, graphic art involves 15 duties that would require overhead reaching. Indeed, Plaintiff testified that as he 16 performed it, the position required reaching forward to place things onto tables, but 17 did not indicate that any of the duties of his previous work required him to reach 18 overhead. (See AR 78-79.) Furthermore, the occupation of a salesman, graphic art 19 is relatively familiar, and nothing about the “essential, integral or expected” 20 requirements of the job would require overhead reaching, particularly the bilateral 21 or frequent overhead reaching Plaintiff was incapable of performing. In sum, 22 considering Plaintiff’s testimony and the DOT description and applying a common 23 sense approach, the Court finds that the VE’s testimony did not present any 24 25 26 27 apparent or obvious conflict requiring resolution by the ALJ. See Bryant v. Berryhill, 2017 WL 2835051, at *9 (C.D. Cal. June 30, 2017) (finding that the record did not reflect an obvious or apparent conflict between the vocational expert's testimony that Plaintiff could perform work as a truck driver given his 28 13 1 limitations on overhead reaching and the DOT); Barron v. Colvin, 2017 WL 2 417192, at *4 (C.D. Cal. Jan. 31, 2017) (finding no apparent or obvious conflict 3 between the DOT and VE’s testimony that the plaintiff could perform work as 4 information clerk, small products assembler and counter clerk given the 5 requirement that Plaintiff needs to stand or stretch at least ten percent of the day), 6 judgment entered, 2017 WL 445228 (C.D. Cal. Jan. 31, 2017); see also Feibusch v. 7 Astrue, 2008 WL 583554, at *5 (D. Haw. Mar. 4, 2008) (citations omitted) (“[T]he 8 use of two arms is not necessarily required for jobs that require reaching and 9 handling.”); Diehl v. Barnhart, 357 F. Supp. 2d 804, 822 (E.D. Pa. 2005) (person 10 with limited use of one arm could perform jobs requiring frequent reaching, 11 handling, and fingering, and therefore there was no conflict between DOT and 12 vocational expert's testimony to that effect). 13 14 IT THEREFORE IS ORDERED that Judgment be entered affirming the 15 decision of the Commissioner and dismissing this action with prejudice. 16 17 18 DATED: 2/20/2018 19 20 21 ____________________________________ ALEXANDER F. MacKINNON UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 14
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