Eubanks v. Commissioner Social Security Administration, No. 3:2012cv00422 - Document 22 (D. Or. 2013)
Court Description: OPINION AND ORDER. For the reasons stated above, the Commissioner's final decision denying benefits to plaintiff is AFFIRMED. This action is DISMISSED. IT IS SO ORDERED. Signed on 7/17/2013 by Judge Malcolm F. Marsh. (pvh)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON MELANIE EUBANKS, beneficiary of the claim of Nicholas Zawicki, deceased, Plaintiff, v. COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant. BRUCE W. BREWER 419 Fifth Street Oregon City, OR 97045 Attorney for Plaintiff S. AMANDA MARSHALL United States Attorney District of Oregon ADRIAN L. BROWN Assistant United States Attorney 1000 S.W. Third Ave., Suite 600 Portland, OR 97204-2902 WILLY M. LE Social Security Administration Office of the General Counsel 701 Fifth Ave., Suite 2900, M/S 221A Seattle, WA 98104 Attorneys for Defendant 1 - OPINION AND ORDER Case No. 3:12-cv-00422-MA OPINION AND ORDER MARSH, Judge Plaintiff Melanie Eubanks, widow and beneficiary of claimant Nicholas A. final Zawicki, brings this action for judicial review of a decision of the claimant's Commissioner of application for Social Security denying disability insurance under Title II of the Social Security Act, benefits 42 U.S.C This Court has jurisdiction pursuant to 42 U.S.C. the reasons that follow, § §§ (DIB) 401-403. 405(g). For this court affirms the decision of the Commissioner. FACTUAL AND PROCEDURAL BACKGROUND On August 8, claimant 1 2008, protectively filed an application for a period of disability and disability benefits. Claimant alleged disability beginning April 1, 2008, as amended, due to depression and degenerative disc disease of the spine. The claims were denied initially on December 5, 2008, and on reconsideration on March 20, 2009. Claimant filed a request for a hearing before an administrative law judge (ALJ). a lumbar hearing April 28, 2010, attorney and testified. at The ALJ held which claimant appeared with his Also appearing and testifying were David R. Rullman, M.D., a medical expert; Richard M. Hinks, a vocational expert; and plaintiff. 1 For clarity, I refer to Melanie Eubanks as "plaintiff ¢ and Nicholas Zawicki as "claimant ¢ throughout this opinion. 2 - OPINION AND ORDER On May 5, 2010, the ALJ issued an unfavorable decision. The Appeals Council denied claimant's request for review on January 4, 2012, and therefore, the ALJ's decision became the final decision of the Commissioner for purposes of review. Claimant was 39 years old as of the date of the hearing, has an eighth grade education, and can read and write in English. Claimant has past relevant work as an auto parts delivery driver, construction laborer, and salvage worker. THE ALJ'S DISABILITY ANALYSIS The Commissioner has established a five-step sequential process for determining whether a person is disabled. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. is potentially dispositive. Each step The claimant bears the burden of proof at steps one through four. Admin., 574 F.3d 685, 416.920. § Bowen v. See Valentine v. Comm' r Soc. 689 (9th Cir. 2009); Tackett v. Apfel, F. 3d 1094, 1098 (9th Cir. 1999). Sec. 180 At step five, the burden shifts to the Commissioner to show that the claimant can do other work which exists in the national economy. Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995). The ALJ concluded that claimant met the insured status requirements of the Social' Security Act through December 31, 2012. A claimant seeking DIB benefits under Title II must disability on or prior to the last date insured. establish 42 u.s.c. 416(I) (3); Burch v. Barnhart, 400 F. 3d 676, 679 (9th Cir. 2005). 3 - OPINION AND ORDER § At step one, the ALJ found that claimant has not engaged in substantial gainful activity since his amended alleged onset of disability date of April 1, 2008. See 20 C.F.R. § 404.1571 et seq. At step two, the ALJ found that neither claimant's depression nor lumbar degenerative disc disease were medically determinable impairments. However, giving claimant the benefit of every doubt, the ALJ found claimant's degenerative disc disease of the lumbar spine a severe impairment. See 20 C.F.R. 404.1520(c). § At step three, the ALJ found that claimant's impairment, or combination of listed impairments, impairment. See did not meet 20 C.F.R. §§ or medically equal 404.1520(d), a 404.1525, 404.1526. The ALJ assessed claimant with a residual functional capacity (RFC) C.F.R. to perform modified light exertion work as defined in 20 §§ limitations. 404.1567(b), except with some mild nonexertional Specifically, the ALJ determined that claimant can walk 20 minutes at a time or up to four blocks at a time on a level surface; he can sit for sit for six or more hours and stand and walk two hours in each activity (cumulatively, not consecutively) in a normal eight-hour work day with normal breaks; claimant can lift and carry 20 pounds occasionally and 10 pounds frequently; claimant can push/pull 20 pounds occasionally; claimant has 90 percent stamina secondary to fatigue complaints; and claimant is limited to unskilled work. 4 - OPINION AND ORDER See 20 C.F.R. §§ 404.1527, 404.1529. At step four, the ALJ found claimant unable to perform any past relevant work. At step five, See 20 C.F.R. 404.1565. § the ALJ concluded that considering claimant's age, education, work experience, and residual functional capacity, jobs exist in significant numbers claimant can perform. Accordingly, in the national economy that See 20 C.F.R. the ALJ concluded that §§ 404.1560(c), 404.1566. plaintiff is not disabled within the meaning of the Act. ISSUES ON REVIEW On appeal to this court, plaintiff contends the ALJ committed the following testimony; (1) errors: improperly discredited claimant's (2) failed to give the opinion of Jeffrey Young, D.O., controlling weight; (3) failed to properly consider the lay testimony; and (4) failed to confirm that the vocational expert's (VE) testimony is consistent with the Dictionary of Occupational Titles (DOT). The Commissioner argues that plaintiff has failed to challenge the ALJ's Step Two determination that claimant did not establish any medically determinable impairments, and therefore, plaintiff's remaining issues are waived. Alternatively, the Commissioner submits that the ALJ's alternative nondisability determination at Step Five must be affirmed. Ill/ Ill/ 5 - OPINION AND ORDER STANDARD OF REVIEW The district court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings 42 are supported by substantial evidence in the record. § u.s.c. "Substantial evidence means 405(g); Andrews, 53 F.3d at 1039. more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable adequate to support a conclusion." 690. The Commissioner's the evidence is interpretation·. Id.; Valentine, decision susceptible to Molina v. Astrue, mind might must be more accept 57 4 F. 3d at upheld, than as one even if rational 674 F.3d 1104, 1111 (9th Cir. 2012); Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). If the evidence supports the Commissioner's conclusion, the Commissioner must be affirmed; "the court may not substitute its judgment for that of the Commissioner." F. 3d 1152, 1156 (9th Cir. 2001); Edlund v. Massanari, 253 Batson v. Commissioner of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). DISCUSSION I. Step Two At Step Two, the ALJ must determine whether a claimant has one or more impairments that significantly limit his or her ability to conduct basic work activities. Ukolov v. Barnhart, 420 F.3d 1002, 1003 (9th Cir. 2005); 20 C.F.R. § burden to present evidence 6 - OPINION AND ORDER of 404.1520(c). medical A claimant has the signs, symptoms, and findings 2 laboratory I establish that physical or mental impairment that is determinable medically a severe, and that can be expected to result in death or which has lasted or can be expected to last for a continuous period of at least twelve months. Pain is impairment. not an 20 C.F.R. § Id. Moreover, 404.1529. "'under no circumstances may the existence of an impairment be established on the basis of symptoms alone.'" Ukolov, 420 F.3d at 1005 (quoting SSR 96-4p, available at 1996 WL 374187 *1)); see also 20 C.F.R. § 404.1508. Step two is "a de minimis screening device [used) to dispose of groundless claims." Cir. 1996) . The Smolen v. Chater, 80 F.3d 1273, 1290 (9th court must determine whether an ALJ had substantial evidence to find that the medical evidence clearly established that the claimant did not have a impairment or combination of impairments. medically severe Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (citation omitted); see also Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) ("Despite the deference usually accorded to the Secretary's application of regulations, numerous appellate courts have imposed a narrow construction upon the severity regulation applied here."). An impairment or ,An 'impairment' must result from an anatomical, physiological, or psychological abnormality that can be shown by medically acceptable clinical and laboratory diagnostic techniques[.]" SSR 96-4p. A "symptom" is "'an individual's own perception or description of the impact of his or her physical or mental impairment ( s) [. ] ' " Ukolov v. Barnhart, 4 20 F. 3d 1002, 1005 (9th Cir. 2005) (quoting SSR 96-4p). 7 - OPINION AND ORDER combination of impairments can be found "not severe" only if the evidence establishes a slight abnormality that has "no more than a minimal effect on an individual's ability to work." Webb, 433 F. 3d at 686 (citation omitted). In this case, the ALJ determined at Step Two that claimant's alleged depression is not severe. The ALJ's finding concerning claimant's alleged depression is supported by substantial evidence in the record, and is not challenged by plaintiff. claimant's alleged back pain at Step Two, In discussing the ALJ exhaustively examined claimant's medical records. The ALJ detailed a November 2000 MRI of claimant's lumbar spine which revealed mild degenerative changes at L4-5, "indicative of very early degenerative changes" without stenosis, and otherwise normal. 2001 April 18, Tr. 206. The ALJ discussed that the result of an electromylegram (EMG) nerve conduction study was entirely normal, noting that claimant was observed to sit without pain for the duration of the testing, and had full strength in all extremities. Tr. 201, 252. The ALJ noted that in April 2001, claimant was released to perform "medium exertion" level work. 249-56. The ALJ noted that several months later, Tr. claimant underwent a physical in order to attend truck driving school as part of vocational retraining. Tr. 386. The ALJ discussed that in February of 2002, claimant saw Terry L. Connor, D.O., complaining of back pain with heavy lifting, and 8 - OPINION AND ORDER that the treatment notes suggested claimant was working at that time. Tr. 383. At that time, claimant was diagnosed with a back Id. strain, and released to light duty work. The ALJ discussed that claimant next sought treatment from Dr. Connor in September of 2004, who noted that "it has been Tr. 380. since we've seen him." 2~ years Claimant reported to Dr. Connor that he had been free of any serious episodes since 2002, recently had a sudden recurrence of back Dr. pain. but Connor diagnosed lumbosacral strain and prescribed Celebrex and Skelaxin. As the ALJ noted, Dr. Connor reported that claimant had a decreased range of motion and muscle spasms. The ALJ also discussed that claimant reported to Dr. Young on April 11, 2008, for follow up treatment after sustaining a facial fracture that he received in a bar fight a couple of weeks earlier. As the ALJ discussed, Dr. Young noted that claimant had received good relief with Norco, and that claimant indicated he was drinking 12 to 24 drinks per weekend. The ALJ discussed a September 23, 2008 orthopedic consulative examination conducted by Terri Robinson, M.D. Dr. Robinson noted that claimant complained of atypical radiculopathy into his midback and legs, and that all imaging revealed no abnormalities or degeneration at L5-Sl. The ALJ noted that Dr. Robinson did not find any muscular atrophy or bony deformities, and that claimant's complaints and pain 9 - OPINION AND ORDER behaviors were out of proportion to the clinical findings and the examination. Dr. Robinson assessed that claimant's physical exertional capacity at medium. Tr. 420-24. The ALJ discussed that claimant's treating physician became Dr. Young in April of 2008, and that in January of 2009, claimant Dr. Young noted a mild decreased reported continued low back pain. range At that time, findings. Percocet a day. Dr. Young but tenderness, of motion and reported otherwise normal claimant reported taking six to eight The ALJ noted that despite the benign findings, prescribed and Oxycodone The Morphine. also ALJ discussed a January 25, 2010 letter authored by Dr. Young in which Dr. Young opines that claimant suffers lumbar degenerative disk disease at the L4-5, chronic low back pain, gastroesophageal reflux disease (GERD) and that claimant would miss three days of work each month due to low back pain and depression. claimant's concurrent "minimal revealed degenerative January narrowing changes," which X-rays of his 2010 at were The ALJ discussed that L4-5" showing lumbar spine "very early unchanged essentially since imaging in 2000. Next, the ALJ discussed the testimony of the medical expert Dr. Rullman, who opined that claimant's X-rays and MRI's over a 10year period demonstrated no abnormalities of any significance. Rullman testified that aside from claimant's subjective complaints, Dr. Young with there was no "medically based diagnosis" of lumbar degenerative disc disease. 10 - OPINION AND ORDER agreeing Dr. The ALJ also noted Dr. Rullman's Glass, who expressed examining another observation of that concern claimant Dr. physician, narcotics used to perpetuate and legitimize his back pain. The ALJ concluded his lengthy Step Two findings.by stating: [W)e find the claimant's alleged back pain is without medical signs or clinical findings to establish as a medically determinable impairment. Nonetheless, in order disability sequential the to proceed on through evaluation process, the claimant must have at least one Therefore, only in giving the severe impairment. claimant every benefit of doubt do we find his alleged back pain is severe. Tr. 19. that because plaintiff does The Commissioner contends the remaining challenges to the challenge the Step Two finding, ALJ's decision at Steps Reply, not In the Four and Five are superfluous. plaintiff argues that because the ALJ continued with the sequential evaluation, Step Two arguments were unnecessary. As will substantial claimant's be evidence alleged back ALJ's the supports was pain without conclude that determination below, explained further that I signs or clinical findings, and thus was not a medically determinable impairment. As the ALJ discussed, claimant suffered a low back strain in 2000, and he was ultimately released in 2001 to perform medium work. Claimant performed periodic work at the medium exertion level, notably doing demolition work as recently as March of 2008, a month before his alleged onset date. 11 - OPINION AND ORDER At that point, claimant sustained As noted by a facial fracture in a bar fight and stopped working. the ALJ, claimant sought follow up treatment from Dr. Young for an alleged exacerbation of his Percocet and Oxycodone. complaints, as and was prescribed However, aside from claimant's subjective correctly ALJ the low back pain, determined, his lumbar degenerative disc disease is not substantiated by any clinical findings demonstrating anything more than a slight abnormality at Moreover, as the ALJ discussed, his MRis and X-rays remained L4-5. unchanged from 2000 to 2010 and the condition appeared not to impact his ability to work, given that claimant performed medium exertion work for three months in 2008. Thus, there are no medical signs, symptoms or clinical findings which demonstrate that claimant's very early degenerative disc disease would limit his or her ability to conduct basic work activities. To the contrary, the evidence before me establishes only a slight abnormality that has "no more than a minimal effect on an individual's (citation omitted). ability to work." Webb, 433 F.3d at 686 Thus, based on the evidence in the record, the ALJ could have concluded that claimant was not disabled at Step Two. It appears that in an abundance of caution, the ALJ continued the sequential evaluation until reaching a decision at Step Five. In an abundance of caution, I do the same. Ill/ 12 - OPINION AND ORDER II. Plaintiff's Credibility regarding testimony claimant's a whether determine To subjective pain or symptoms is credible, an ALJ must perform two a is stage §§ 404.1529, in which the 20 C.F.R. stages of analysis. threshold test The first 416.929. claimant must produce objective medical evidence of an underlying impairment that could be. Tommasetti, 533 F.3d at 1039; Smolen, second of stage the alleged. At the 80 F.3d at 1282. analysis, credibility symptoms the produce to expected reasonably absent affirmative evidence of malingering, the ALJ must provide clear and convincing reasons for discrediting the claimant's testimony regarding the Carmickle v. severity of the symptoms. Admin., Sec. Lingenfelter v. 2008); (9th Cir. 1166 F.3d 1155, 533 Commissioner Soc. Astrue, 504 F. 3d 1028, 1036 (9th Cir. 2007). The ALJ must make findings that are sufficiently specific to permit the reviewing court conclude to that 2002); Factors Orteza v. the ALJ determinations Barnhart, Thomas v. Shalala, consider may include claimant's treatment F. 3d 50 the history, 278 F.3d 947, 748, when objective the 750 making not Tommasetti, arbitrarily discredit the claimant's testimony. F.3d at 1039; ALJ did 533 the 958 (9th Cir. (9th Cir. such medical 1995). credibility evidence, the claimant's daily activities, inconsistencies in testimony, effectiveness or adverse side effects 13 - OPINION AND ORDER of any pain character relevant and medication, evidence. Tommasetti, 533 F.3d at 1039. At the hearing, when asked to describe his pain, testified that his pain was a 12 on a 10-point scale. claimant After prompting by his attorney to be realistic, claimant responded that Claimant stated that his pain his pain was typically at an eight. limits his activities in all areas, and described that he can sit for 20 minutes, stand for 20 minutes, and walk for 25 minutes, and Claimant testified that he lies down can lift only five pounds. Claimant also for five to six hours a day to relieve his pain. testified that he from suffers depression, including suicidal thoughts. In a disability report, claimant stated that when his back goes out, he will be in bed for four days. Claimant also described that his back pain interrupts his sleep, and limits his ability to lift. In the disability report, claimant indicated that he stopped working on March 30, 2008, because he was assaulted. a September 2008 Function Report, Tr. 156. In claimant described that he is able to cook, put dishes away and vacuum, but that he is no longer able to mow the lawn or pull weeds. Tr. 165. In the decision, the ALJ concluded that claimant's medically determinable impairment could reasonably be expected to produce some symptoms, but that 14 - OPINION AND ORDER claimant's statements concerning the intensity, persistence, and limiting effects of those symptoms were not entirely credible. The ALJ specific, gave clear discounting claimant's testimony. to report his employment 2008 and convincing for The ALJ found claimant's failure a reason compelling to doubt claimant worked for As the ALJ discussed, claimant's veracity. reasons three months in 2008 performing construction demolition work, but failed to report this employment in September of 2008 and again in March of 2009 in his reports to the Commissioner. noted that claimant The ALJ also failed to disclose his history of alcohol abuse. The ALJ appropriately discredited claimant for his lack of candor concerning employment his statements about his alcohol use. (claimant's spotty consideration); history work and history See Thomas, was see Verduzco v. Apfel, a his inconsistent 278 F.3d at 959 valid credibility 188 F.3d 1087, 1090 (9th Cir. 1999) (relying on inconsistent statements about alcohol use to reject claimant's testimony). The ALJ also discredited claimant because his complaints are not supported by the medical evidence. When the claimant's own medical record undercuts his assertions, the ALJ may rely on that contradiction to discredit the claimant. 742, 750-51 (9th Cir. 2007). noted that there was no Parra v. Astrue, 481 F.3d The ALJ discussed that Dr. Robinson medical evidence to "corroborate his atypical complaints of radiculopathy," and found claimant's pain 15 - OPINION AND ORDER complaints proportion" of "out be to examination his to and The ALJ found that claimant's medical records clinical findings. have consistently been within normal limits, citing records from As discussed above, the ALJ's findings are multiple physicians. Thomas, wholly supported by substantial evidence in the record. 278 F.3d at 959. The ALJ also found that claimant's activities of daily living (ADLs) functioning and alleged his with Plaintiff complains that the ALJ failed to assess the limitations. extent inconsistent are activities his of and transferable to a work setting. As the ALJ found, such whether are activities I disagree. claimant was working in a medium exertion job as recently as one month before his amended onset date, appears to have in a stopped working after he was bar and fight. The Claimant also reported playing music in a bar and driving. was not credible 1vi th respect to his limitations and pain allegations. See ALJ's Berry support findings v. As true, (inconsistencies 622 between his conclusion F. 3d 1228, self-reported supported adverse credibility finding). that 1235 claimant (9th symptoms and Cir. 2010) activities Even if the ALJ erred in relying on claimant's alleged ADLs to discredit him, any such error is harmless. The ALJ's remaining reasons, when considered in isolation or in combination, provide clear and convincing support 16 - OPINION AND ORDER for the adverse credibility determination. Carmickle, 533 F.3d at 1162; Tommasetti, 533 F.3d at 1040. III. Physician's Opinion reject To the examining physician, opinion uncontroverted of treating a or the ALJ must present clear and convincing Bayliss v. reasons for doing so. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); Rodriguez v. Bowen, 876 F.2d 759, 761-62 (9th Cir. 1989). If a treating or examining doctor's opinion is contradicted by another doctor's opinion, legitimate reasons. this it may be rejected by specific and Bayliss, 427 F.3d at 1216. burden by providing a conflicting medical evidence, detailed summary of An ALJ can meet the facts and stating his own interpretation of that evidence, and making findings. Tommasetti, 533 F.3d at 1041; Carmickle, 533 F.3d at 1164; Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). When evaluating conflicting opinions, an ALJ is not required to accept an opinion that is not supported by clinical findings, or is brief or conclusory. Bray v. Commissioner of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009); Magallanes, 881 F.2d at 751. is based on An ALJ also may discount a physician's opinion that a claimant's discredited subjective complaints. Tommasetti, 533 F.3d at 1040. Here, plaintiff complains that the ALJ erred in rejecting the opinion of claimant's treating physician, Dr. Young, who opined the claimant would miss work three days a month due to depression and 17 - OPINION AND ORDER Dr. Young's opinion was contradicted by numerous other back pain. opinions, including Dr. Robinson and Brad Lorber, M.D., examining physicians who opined that claimant could perform a full range of medium work. I Tr. 18, 249-259, 420. readily conclude that the ALJ has provided specific and Here, the legitimate reasons for rejecting Dr. Young's opinion. ALJ gave several reasons for giving Dr. (1) weight: complaints; his opinion was based on Young's opinion little claimant's subjective (2) his opinion is not supported by clinical findings or medical signs; and (3) his diagnoses are not supported by his own treatment notes. As discussed at length above with respect to Step Two, ALJ's determination that claimant's lumbar degenerative the disc disease was not supported by medical signs or clinical findings is supported by substantial evidence. Moreover, Dr. Young's treatment notes do not reflect that he conducted any independent clinical testing to confirm the diagnoses in his opinion letter. Indeed, the ALJ expressed concern that Dr. Young prescribed narcotic pain medication based on such benign medical findings. discounted Dr. Young's opinion because it was Thus, the ALJ based solely claimant's subjective pain complaints, was brief and conclusory, and unsupported by his own treatment notes. (ALJ not required to accept Bray, 554 F. 3d at 1228 opinion inadequately supported by clinical findings or based on discredited subjective complaints); 18 - OPINION AND ORDER Bavliss, 427 F.3d at 1216. I find no error in the ALJ's treatment of Dr. Young's opinion. IV. Lay Testimony Lay witness testimony as to a claimant's symptoms or how an impairment affects his ability to work is competent evidence, which the ALJ must take into account. Stout v. Commissioner, Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006); Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). The ALJ is required to account for competent lay witness testimony, reasons for doing so. and if he rejects it, to provide germane Valentine, 574 F.3d at 694; Dodrill, 12 F.3d at 919. Plaintiff household testified chores, such that as she performs cleaning and nearly shopping. all of Tr. the 41. Plaintiff stated that she observed claimant lying down four or five hours a day and watching television. Plaintiff also described that claimant had difficulty remembering to things, and that she needed to write things down in order to assist claimant. Tr. 42. Plaintiff described limitations which were similar to those described by reasons for plaintiff. claimant. discounting Accordingly, claimant's the ALJ' s testimony well-supported apply equally to Molina, 674 F.3d at 1117; Valentine, 574 F.3d at 694. Thus, the ALJ did not err in discounting plaintiff's lay testimony. 19 - OPINION AND ORDER V. VE Testimony Plaintiff complains that the ALJ erred because he failed to inquire whether the VE's testimony was consistent with the DOT. This requirement is based on SSR 00-4p, which provides that when a VE testifies concerning the requirements of a job or occupation, an ALJ has an "affirmative responsibility to ask about any possible conflict between" the VE' s evidence and the information provided in This Ruling further provides that an ALJ "will ask" the the DOT. VE if the evidence he or she has provided "is consistent with the DOT, and obtain a explanation reasonable for apparent any conflict." The Ninth Circuit has determined that an ALJ may rely upon the testimony of a VE regarding the requirements of a particular job, but first must inquire whether the VE's testimony is conflicts with Massachi v. Astrue, the Dictionary of Occupational Titles. 486 An ALJ's failure to inquire is a F.3d 1149, 1152 (9th Cir. 2007). procedural error, and may be harmless if no conflict existed or if the VE "provided sufficient support for [his) conclusion so as to justify any potential Id. conflicts." at 1154 n.l9. It is plaintiff's burden to establish that the error was prejudicial. See Shinseki v. Sanders, 556 U.S. 396, 407 (2009); accord Ludwig v. Astrue, 681 F. 3d 1047, 1054 (9th Cir. 2012). At the containing hearing, all the 20 - OPINION AND ORDER the ALJ posed limitations in a hypothetical the RFC. to Based the on VE the hypothetical, the VE identified two occupations that claimant could Production Line Assembly Worker, DOT§ 706.687~010, perform: Hand Packager, decision DOT that the 559.687-674. 4 § VE's and While the ALJ noted in his is "testimony information contained in the 3 consistent with the [DOT]," the ALJ did not explicitly pose this question to the VE at the hearing. Compare Tr. 22 with Tr. 45-48. Plaintiff argues that this finding is insufficient because conflicts between the VE's testimony and the DOT exist. argues the jobs identified by the VE are "light" Plaintiff jobs only. According to plaintiff, claimant cannot be on his feet more than The DOT description of the production line assembly worker job is as follows: "Performs repetitive bench or line assembly operations to mass-produce products, such as automobile or tractor radiators, blower wheels, refrigerators, or gas stoves: Places parts in specified relationship to each other. Bolts, clips, screws, cements, or otherwise fastens parts together by hand, or using handtools or portable power tools. May tend machines, such as arbor presses or riveting machine, to perform force fitting or fastening operations on assembly line. May be assigned to different work stations as production needs require. May work on line where tasks vary as different model of same article moves along line. May be designated according to part or product produced." 3 4 The DOT description of the hand packager job is as follows: "Inspects molded plastic products, such as bottle caps or tops, for defects, and packs inspected products into shipping cartons: Visually examines molded products for defects, such as scratches, discoloration, and flash, and discards defective products. Packs inspected product in cartons according to customer specifications, and carries cartons to storage area. May attach metal bands to bottle tops prior to packing to form necks for bottles and measure necks to ensure specified length, using gauge." 21 - OPINION AND ORDER two hours a day, can walk a distance of four blocks, and can perform at only 90 percent stamina, and thus the jobs identified exceed claimant's abilities as described in the ALJ' s RFC. The I Commissioner submits that the ALJ's error is harmless at best. agree. Initially, I note that "light" jobs require "a good deal of walk or standing, or ... involve[) sitting most of the time with some pushing and pulling of arm or leg controls." 404.1567(b). 20 C. F. R. § Although claimant was limited to pushing/pulling 20 pounds occasionally in the RFC, plaintiff has failed to establish that this conflicts with "some" pushing and pulling of leg controls Additionally, as defined in the regulation. in response to the ALJ's hypothetical, the VE testified that claimant could perform "bench work." In reading the VE's testimony, it is clear that the VE intended that claimant would be sitting 'tlhile performing the jobs he identified. Tr. 48. Moreover, reviewing the DOT descriptions of the jobs also fails to reveal an apparent conflict between the VE's testimony and the DOT. Indeed, the production line assembly worker job specifically provides for bench work, and the hand packager job fails to describe any length of time the job is performed standing or walking that would exceed claimant's RFC. Plaintiff correctly states that no light job specifically provides for a worker who has 90 percent stamina. conflict appears speculative 22 - OPINION AND ORDER at best. In the This potential RFC, the ALJ specifically "subjective stated that fatigue the stamina complaints" and limitation that the was ALJ based on intended to address those complaints by limiting claimant to modified light exertion, as opposed to his previously performed heavy and medium work. Tr. 20. As discussed above, the ALJ's adverse credibility determination is wholly supported by substantial evidence in the record. Thus, I conclude that plaintiff has failed to demonstrate that actual an testimony and establish, or the apparent DOT. conflict Furthermore, existed between plaintiff has when considering the record as a whole, the VE' s failed to that actual prejudice resulted from the ALJ's failure to so inquire. Massachi, 486 F.3d at 1154 n.19; Ludwig, 681 F.3d at 1055 (in the absence of a demonstration that the decision would have been different, reversal on the basis of procedural error is not warranted) . CONCLUSION For the reasons stated above, the Commissioner's decision denying benefits to plaintiff is AFFIRMED. final This action is DISMISSED. IT IS SO ORDERED. DATED this ~ day of JULY, 2013. Malcolm F. Marsh United States District Judge 23 - OPINION AND ORDER
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