Eduardo Rodriguez v. Carolyn W. Colvin

Filing 27

MEMORANDUM OPINION AND ORDER by Magistrate Judge Ralph Zarefsky. (ib)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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EDUARDO RODRIGUEZ,

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Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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CASE NO. CV 13-09525 RZ
MEMORANDUM OPINION
AND ORDER

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Plaintiff Eduardo Rodriguez asserts that the Social Security Commissioner

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wrongly denied his claim for disability benefits. He principally complains about the

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Administrative Law Judge’s acceptance of the vocational expert’s opinion, and the failure

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of the Appeals Council to adjust the decision as a result of newly-submitted evidence. The

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Court finds no error, and affirms.

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Relying on the testimony of the vocational expert, the Administrative Law

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Judge found that Plaintiff, who has a variety of impairments [AR 25], nevertheless could

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perform certain jobs which exist in sufficiently plentiful amounts in the relevant economy.

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He identified the jobs of Cafeteria Attendant, Routing Clerk and Dry Cleaner. [AR 33] In

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this Court, Plaintiff asserts that those jobs do not match his residual functional capacity.

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Plaintiff cites law to the effect that a vocational expert is entitled to deviate

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from the Labor Department’s DICTIONARY OF OCCUPATIONAL TITLES as long as the record

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contains persuasive evidence in support of the testimony. Johnson v. Shalala, 60 F.3d

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1428, 1435 (9th Cir. 1995); Light v. Social Security Administration, 119 F.3d 789,793 (9th

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Cir. 1993). The flaw in Plaintiff’s analysis, however, is that the expert’s testimony is fairly

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read as saying that the expert was not deviating from the DICTIONARY. The Administrative

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Law Judge asked the vocational expert at the outset to state if any of his testimony deviated

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from the DICTIONARY, and the expert said that he would [AR 64]; thereafter the expert

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testified, including referencing categories in the DICTIONARY, without indicating that his

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testimony differed. The Court concludes, therefore, that the vocational expert did not think

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that he was deviating from the DICTIONARY.

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Plaintiff, however, says that he was. Plaintiff says that the Administrative

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Law Judge ruled that he should have no direct interaction with the public [AR 27], whereas

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the DICTIONARY’s description of the cafeteria worker job includes the tasks of carrying

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trays from food counters to tables for patrons, and that such a worker may circulate among

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diners and serve coffee. These are, however, only two of the several tasks mentioned in

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the DICTIONARY’s definition, and the DICTIONARY also indicates that a person’s

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performance in the “People” domain is not significant. Given these factors, the Court does

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not find that the vocational expert deviated from the DICTIONARY in any material way as

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to the Cafeteria Attendant job.

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Plaintiff also says that the vocational expert deviated from the DICTIONARY

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as to the Dry Cleaner position. Here Plaintiff’s argument is that because the Administrative

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Law Judge found that he would need to be off task five percent of the time, he could not

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perform as a dry cleaner because that position requires a worker to notice spots on

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garments and to open valves to admit cleaning fluids. Plaintiff posits that he might need

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to be off task when he should be looking for spots or opening a valve to allow cleaning

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fluid into a washing machine.

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There is no necessary conflict between the DICTIONARY’s description and the

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vocational expert’s testimony, however. The DICTIONARY does not say that a dry cleaner

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must be on task one hundred percent of the time. The vocational expert was given a
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hypothetical question including a residual functional capacity that matched Plaintiff’s, and

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he testified that a person with such a capacity could perform the job of Dry Cleaner. The

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Court assumes, therefore, that the vocational expert concluded that such a person could be

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off task five percent of the time. A vocational expert would be qualified to give such an

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opinion, and such a opinion would not need to conflict with the DICTIONARY. That opinion

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stands as substantial evidence in support of the decision.

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Plaintiff does not claim any conflict between the vocational expert’s testimony

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and the DICTIONARY with respect to the third job the vocational expert identified, Routing

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Clerk, and therefore the Court need not address any supposed inconsistency as to that

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position.

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Plaintiff does say, however, that he could not perform any of these jobs for an

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additional reason — that the Administrative Law Judge found that he could only work at

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eighty percent of his co-workers’ pace. [AR 27] However, the vocational expert testified

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that there are jobs for such workers; such a worker would be, in the vocational expert’s

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verbiage, a “C” worker, and would likely be the first to go in a lay-off situation [AR 70],

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but this does not mean that the jobs are not available. Plaintiff has tortured the vocational

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expert’s testimony into a construct that such a person was able to work only at eighty

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percent of an eighty percent level, but that is not what the vocational expert said. Again,

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the vocational expert’s testimony stands as substantial evidence in support of the

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Administrative Law Judge’s decision. Bayliss v. Barnett, 427 F.3d 1211, 1218 (9th Cir.

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2005).

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Plaintiff’s last claim is that a statement from his physician, which he submitted

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to the Appeals Council after the hearing, demonstrates that he is disabled. The Court

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disagrees. The statement indicates Plaintiff can do far less than Plaintiff himself said he

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could do. Furthermore, Plaintiff in this Court argues that the physician’s opinion is

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justified by records which the Administrative Law Judge already had considered, and by

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similar opinions which he had considered and rejected. The subsequent opinion thus did

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not require any further evaluation by the Appeals Council or the Administrative Law

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Judge.
In accordance with the foregoing, the decision of the Commissioner is

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affirmed.
DATED: January 20, 2015

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RALPH ZAREFSKY
UNITED STATES MAGISTRATE JUDGE

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