Amal Khalil v. Nancy A. Berryhill, No. 8:2017cv00306 - Document 21 (C.D. Cal. 2018)
Court Description: MEMORANDUM DECISION by Magistrate Judge Frederick F. Mumm: (see attached) Accordingly, the Plaintiff's argument is without merit. For the foregoing reasons, the decision of the Commissioner is AFFIRMED. (jm)
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Amal Khalil v. Nancy A. Berryhill Doc. 21 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 AMAL KHALIL, 11 No. CV 17-306 FFM Plaintiff, MEMORANDUM DECISION 12 v. 13 14 15 16 17 NANCY A. BERRYHILL, Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security, Defendant 18 19 20 Plaintiff Amal Khalil brings this action seeking to overturn the decision of 21 22 the Commissioner of the Social Security Administration (“SSA”), which denied 23 her April 2, 2014 application for a period of disability and Disability Insurance 24 benefits (the “Application”) pursuant to Title II of the Social Security Act (the 25 “Act”). (Administrative Record (“AR”) 129-132.) The parties have consented, 26 under 28 U.S.C. § 636(c), to the jurisdiction of the United States Magistrate 27 Judge. Pursuant to the Case Management Order filed on March 24, 2017, the 28 /// 1 Dockets.Justia.com 1 parties filed a Joint Stipulation (“JS”) detailing their respective arguments and 2 authorities. (Dkt. 20.) 3 The Court has reviewed the parties’ Joint Stipulation and the record in this 4 matter. For the reasons discussed below, the decision of the Commissioner 5 challenged in this action is affirmed. I. 6 7 PROCEDURAL HISTORY Plaintiff protectively filed her Application on April 2, 2014, which the 8 Administration denied by initial determination. (AR 59-70, 129-132.) The 9 matter was heard before an Administrative Law Judge (“ALJ”) on August 27, 10 2015. (AR 45-58.) The ALJ issued a decision denying Plaintiff’s claim on 11 October 14, 2015. (AR 28-41.) In the decision, the ALJ determined Plaintiff had 12 not engaged in substantial gainful activity since her disability onset date, January 13 3, 2012. (AR 33, 129-132.) The ALJ further found that Plaintiff suffered the 14 following impairments: 15 1. Obesity; 16 2. Chronic Fatigue Syndrome; 17 3. Lumbar and Cervical Strain/Sprain; 18 4. Fatty Liver; and, 19 5. Depressive Disorder. 20 (AR 33.) However, the ALJ ultimately determined Plaintiff’s impairments do not 21 meet one or more conditions in the Listing of Impairments in 20 C.F.R. Part 404, 22 Subpart P, Appendix 1. (AR 34.) 23 The ALJ determined that Plaintiff still has the residual functional capacity 24 (“RFC”) to perform light exertional work, but in so determining, articulated 25 several exceptions. (AR 35.) In the decision, the ALJ found that Plaintiff is no 26 longer capable of performing past relevant work as an art director and still 27 photographer. (AR 40.) The ALJ further concluded that Plaintiff is not disabled 28 under the Act. (AR 41.) 2 1 On December 22, 2016, the Appeals Council denied Plaintiff’s request to 2 review the ALJ’s decision, thus, it stands as the Commissioner’s final decision. 3 (AR 1-8.) II. 4 ISSUE IN DISPUTE The sole issue in dispute is whether the vocational expert deviated from the 5 6 Dictionary of Occupational Titles (“DOT”) without reasonable explanation. (JS 7 4.) III. 8 STANDARD OF REVIEW Under 42 U.S.C. § 405(g), this Court reviews the Administration’s 9 10 decisions to determine if: (1) the Administration’s findings are supported by 11 substantial evidence; and (2) the Administration used the proper legal standards. 12 Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citations omitted). 13 “Substantial evidence is more than a scintilla, but less than a preponderance.” 14 Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998) (citation omitted). To 15 determine whether substantial evidence supports a finding, “a court must consider 16 the record as a whole, weighing both evidence that supports and evidence that 17 detracts from the [Commissioner’s] conclusion.” Auckland v. Massanari, 257 18 F.3d 1033, 1035 (9th Cir. 2001) (internal quotation marks omitted). If the evidence in the record can reasonably support either affirming or 19 20 reversing the ALJ’s conclusion, the Court may not substitute its judgment for that 21 of the ALJ. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) 22 (citing Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 23 1995)). However, even if substantial evidence exists to support the 24 Commissioner’s decision, the decision must be reversed if the proper legal 25 standard was not applied. Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 26 1014-15 (9th Cir. 2003); see also Smolen, 80 F.3d at 1279. 27 /// 28 /// 3 VI. 1 2 DISCUSSION At step five, the ALJ must establish that the claimant is capable of 3 performing jobs in the economy. 20 C.F.R. §§ 404.1520(f)-(g), 404.1560(c); see 4 Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir.1995). There are two ways for 5 the Commissioner to meet her burden at step five: (1) by reference to the 6 Medical-Vocational Guidelines contained in 20 C.F.R. Part 404, Subpart P, 7 Appendix 2 (the “Grids”); or (2) through the testimony of a vocational expert as 8 to other work in the economy that the claimant can perform. Osenbrock v. Apfel, 9 240 F.3d 1157, 1162 (9th Cir. 2001) (citing Tackett v. Apfel, 180 F.3d 1094, 10 1100-01 (9th Cir. 1999)). 11 The ALJ is required to seek the testimony of a vocational expert when a 12 non-exertional limitation 1 is “sufficiently severe so as to significantly limit the 13 range of work permitted by the claimant’s exertional limitation.” Hoopai v. 14 Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007) (internal quotation marks omitted). 15 The DOT lists jobs along with a description of the physical, mental, and 16 experience requirements of each job. The DOT’s listings are presumptively 17 authoritative. See Pinto v. Massanari, 249 F.3d 840, 845-46 (9th Cir. 2001). If 18 the VE’s testimony regarding job requirements differs from the DOT, the VE 19 must provide a persuasive rationale supported by evidence justifying the 20 discrepancy. See Light v. Soc. Sec. Admin., 119 F.3d 789, 793 (9th Cir.1997). 21 Here, the ALJ determined that Plaintiff could not perform her past work, 22 but could perform other nationally-available work. (AR 35.) The ALJ posed 23 hypotheticals to the testifying VE at the hearing. (AR 45-58.) The first 24 25 26 27 28 1 Non-exertional limitations include, e.g., limitations on seizing, holding, grasping, or turning an object; bending, stooping, and crouching; vision and speech limitations; environmental restrictions (such as restrictions on exposure to noise or breathing irritants); and mental restrictions. Social Security Ruling 85-15, 1985 WL 56857 (S.S.A.), *3. 4 1 hypothetical included exertional limitations identical to the RFC, supra 2 (“Hypothetical One”). (AR 54-57.) In response to Hypothetical One, the VE 3 testified that an individual with the profile of Plaintiff’s RFC could perform the 4 work of a storage facility rental clerk2 and a cleaner (housekeeping). 3 (AR 55.) An ALJ may not “rely on a vocational expert’s testimony regarding the 5 6 requirements of a particular job without first inquiring whether the testimony 7 conflicts with the [DOT].” Massachi, 486 F.3d at 1152. Here, the ALJ did ask 8 the VE if his testimony has been “consistent with the Dictionary of Occupational 9 Titles and its companion publications.” (AR 57.) The VE responed, “It has been, 10 Your Honor.” (Id.) Plaintiff contends it was improper for the ALJ to rely on the VE’s 11 12 testimony that being a storage facility rental clerk would require performing 13 “simple tasks,” because the DOT rates such work as requiring reasoning level 3. 4 14 (JS 6, AR 57.) Plaintiff further contends that the VE’s testimony “conflicts with 15 the DOT and that the VE did not provide a reasonable explanation.” (JS 5-7, 16 citing Zavalin v. Colvin, 778 F.3d 842, 846-8 (9th Cir. 2015).) Defendant 17 contends that, even if reasoning level 3 does conflict with simple, repetitive work, 18 /// 19 /// 20 /// 21 22 23 2 3 24 25 26 27 28 DOT 295.367-026 DOT 323.687-014 4 The DOT indicates that there are six levels of reasoning development. Meissl v. Barnhart, 403 F.Supp.2d 981, 983 (C.D.Cal.2005). Level 3 provides that the claimant will be able to “[a]pply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form. Deal with problems involving several concrete variables in or from standardized situations.” (DOT 237.367–014.) 5 1 then the ALJ’s failure to resolve the conflict amounts to harmless error.5 (JS 9, 2 citing Zavalin, 778 F.3d 842; Massachi v. Astrue, 486 F.3d 1149 (9th Cir. 2007); 3 and, Molina v. Astrue, 674 F.3d 1104 (9th Cir. 2012). Here, the Court finds that, to the extent the ALJ may have erred in failing 4 5 to inquire into the apparent inconsistency between the requirements for the 6 occupation listed in the DOT with Plaintiff’s RFC, that error was harmless. The 7 VE identified another occupation, cleaner, housekeeping, that exists in significant 8 numbers in the national economy (464,000 jobs) that Plaintiff could perform. 9 (AR 55.) The identification of a single occupation is ordinarily sufficient to 10 satisfy the Commissioner’s burden at step five. See Tommasetti v. Astrue, 533 11 F.3d 1035, 1043-44 (9th Cir. 2008). Plaintiff contends that working as a housekeeper “leads to one reasonable 12 13 conclusion—patrons will complain and [Plaintiff] would have to take such 14 complaints”; a scenario that would be inconsistent with her RFC. (JS 5-7, AR 15 55-56.) Plaintiff cites no authority for the proposition that working as a 16 housekeeper conflicts with the restriction that she not perform stressful jobs, such 17 as taking complaints. (See JS 7.) Instead, Plaintiff urges the Court to adopt the 18 notion that “common experience dictates that when one is a guest at a hotel, 19 restaurant, club, or beauty parlor … complaining to the person cleaning usually 20 will get the management involved and [the] issue resolved.” (JS 7.) However, anecdotal evidence, dramatizations, and “common experience” 21 22 are not binding authority. Absent authority, Plaintiff’s argument, that all 23 housekeeping activities are inherently stressful, imposes on the ALJ’s province 24 25 5 26 27 28 Harmless error is “inconsequential to the ultimate nondisability determination”. Stout v. Commissioner of the Social Security Administration, 454 F.3d 1050, 1054 (9th Cir. 2006) (“We recognize harmless error applies in the Social Security context … [and a] decision of the ALJ will not be reversed for errors that are harmless.” (internal citations omitted). 6 1 and on the VE’s province. See Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2 2005). 3 Accordingly, the Plaintiff’s argument is without merit. V. 4 5 6 7 CONCLUSION For the foregoing reasons, the decision of the Commissioner is AFFIRMED. IT IS SO ORDERED. 8 9 10 Dated: September 4, 2018 /s/ Frederick F. Mumm s HON. FREDERICK F. MUMM UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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