Sylvia Ceballos v. Carolyn W Colvin
Filing
22
MEMORANDUM AND OPINION by Magistrate Judge Alka Sagar. The decision of the Commissioner is affirmed. (See Order for complete details) (afe)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA-EASTERN DIVISION
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) No. CV 13-1583-AS
)
)
Plaintiff,
) MEMORANDUM OPINION
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of the
)
Social Security Administration, )
)
Defendant.
)
)
SYLVIA CEBALLOS,
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PROCEEDINGS
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On
September
11,
2013,
Plaintiff
filed
a
Complaint
seeking
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review of the denial of her application for Social Security benefits.
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(Docket Entry No. 1.)
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United States Magistrate Judge.
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January 10, 2014, Defendant filed an Answer to the Complaint along
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with the Administrative Record (“A.R.”).
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The parties filed a Joint Stipulation (“Joint Stip.”) on July 2,
27
2014, setting forth their respective positions on Plaintiff’s claim.
The parties consented to proceed before a
(Docket Entry Nos. 8, 10.)
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1
On
(Docket Entry Nos. 13, 14.)
1
(Docket
Entry
No.
20.)
The
Court
2
submission without oral argument.
has
taken
the
matter
under
See C.D. Cal. L.R. 7-15.
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BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
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On
February
1,
7
Supplemental
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Plaintiff alleged an inability to work since February 11, 2010 due to
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severe
Social
depression,
2012,
Plaintiff
Security
paranoia,
(A.R. 166.)
Income
suicidal
filed
an
application
(“SSI”).
tendencies,
(A.R.
and
for
142—47.)
homicidal
10
tendencies.
On April 2, 2013, the Administrative Law
11
Judge (“ALJ”), Mason D. Harrell, Jr., examined the record and heard
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testimony from Plaintiff and vocational expert Mary Jesko.
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42.)
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application.
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following severe impairments: depression and obesity.
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However, the ALJ found that Plaintiff was not disabled within the
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meaning of the Social Security Act.
(A.R. 23—
On June 24, 2013, the ALJ issued a decision denying Plaintiff’s
(A.R. 6-22.)
The ALJ determined that Plaintiff had the
(A.R. 11.)
(See A.R. 13—18.)
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Plaintiff requested that the Appeals Council review the ALJ’s
19
20
decision.
(A.R. 14—15.)
The request was denied on July 19, 2013.
21
(A.R. 1—4.)
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Commissioner, allowing this Court to review the decision.
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U.S.C. §§ 405(g); 1383(c).
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/ /
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/ /
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/ /
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/ /
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/ /
The ALJ’s decision then became the final decision of the
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See 42
PLAINTIFF’S CONTENTIONS
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2
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Plaintiff alleges that the ALJ erred in: (1) discounting the
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credibility of Plaintiff’s testimony and subjective complaints in
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support of her disability claim, and (2) finding an inconsistency
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between the Dictionary of Occupational Titles (“DOT”) and the ALJ’s
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holding that the Plaintiff can perform the jobs of small products
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assembler and garment folder.
(Joint Stip. 3.)
9
DISCUSSION
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A.
The ALJ Did Not Err In Evaluating Plaintiff’s Credibility
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An ALJ’s assessment of a claimant’s credibility is entitled to
14
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“great weight.”
See Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th
16
Cir. 1990); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985).
17
“[T]he ALJ is not required to believe every allegation of disabling
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pain, or else disability benefits would be available for the asking,
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a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).”
20
Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012).
21
whether a claimant’s testimony is credible, the ALJ engages in a two-
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step analysis.
23
2014).
Molina v.
In order to determine
Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir.
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First, the claimant “must produce objective medical evidence of
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26
an
underlying
27
produce the pain or other symptoms alleged.’”
28
947
F.2d
impairment
341,
344
‘which
(9th
could
Cir.
3
reasonably
1991)
be
expected
to
Bunnell v. Sullivan,
(quoting
42
U.S.C.
1
§ 423(d)(5)(A)(1988)).
In
producing
evidence
of
the
underlying
2
impairment, “the claimant need not produce objective medical evidence
3
of the pain or fatigue itself, or the severity thereof.”
4
Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).
5
“need only show that [the impairment] could reasonably have caused
6
some degree of the symptom.”
Smolen v.
Instead, the claimant
Id.
7
8
9
Second, once the claimant has produced the requisite objective
medical
evidence,
the
“ALJ
may
reject
the
claimant’s
testimony
10
regarding the severity of her symptoms.”
11
Absent affirmative evidence of malingering, however, the ALJ may only
12
reject
13
convincing reasons for doing so.”
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alleged symptoms, an ALJ may consider: “(1) ordinary techniques of
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credibility
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prior
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testimony by the claimant that appears to be less than candid; (2)
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unexplained or inadequately explained failure to seek treatment or to
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follow a prescribed course of treatment; and (3) the claimant’s daily
20
activities.”
21
record
22
other third parties.”
a
plaintiff’s
evaluation,
inconsistent
and
testimony
Id.
such
as
statements
“by
Smolen, 80 F.3d at 1284.
offering
Id.
clear
and
In assessing a claimant’s
claimant’s
concerning
specific,
reputation
the
symptoms,
for
and
lying,
other
An ALJ may also consider “the claimant’s work
observations
of
treating
and
examining
physicians
and
Id.
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24
Here,
the
ALJ
examined
the
Administrative
Record
and
heard
25
testimony from Plaintiff.
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that Plaintiff had produced objective medical evidence of underlying
27
impairments that “could reasonably be expected to cause some of the
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alleged
symptoms.”
(A.R.
Based on the record, the ALJ determined
14.)
However,
4
the
ALJ
found
that
1
Plaintiff’s
“statements
concerning
the
intensity,
persistence
2
limiting effects of these symptoms are not entirely credible.”
3
and
14.)
(A.R.
4
The Court agrees with Plaintiff that some of the ALJ’s reasons
5
6
for discounting her testimony were not clear and convincing.
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example, the ALJ found that Plaintiff’s description of her symptoms
8
were
9
otherwise make it more convincing.”
“vague
and
general,
lacking
the
specificity,
(A.R. 14.)
which
For
might
However, the ALJ
10
failed to specifically identify what testimony he found not credible.
11
See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (“the ALJ
12
must
13
undermines the claimant’s complaints.”) (quoting Lester v. Chater, 81
14
F.3d 821, 834 (9th Cir. 1995)).
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finding, Plaintiff testified that she “paces a lot, get[s] agitated,
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and anxious,” that she sees hallucinations and hears voices talking
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to her, and that she thinks people are conspiring against her.
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31—32.)
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paranoid, anxious, agitated, and borderline aggressive.
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Plaintiff also stated that she tried to kill her sister and another
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male
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testimony, the Court finds that Plaintiff has described her symptoms
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with
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convincing reason to discredit Plaintiff’s testimony.
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157 F.3d at 722.
identify
what
testimony
is
not
credible
and
what
evidence
Moreover, contrary to the ALJ’s
(A.R.
Plaintiff stated that when she gets depressed, she is sad,
relative.
(A.R.
sufficient
35—36.)
particularity.
Based
Thus,
on
this
the
is
(A.R. 33.)
above
not
a
mentioned
clear
and
See Reddick,
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The
ALJ
also
discredited
Plaintiff’s
credibility
Plaintiff’s description of her daily activities.
5
based
on
Orn v. Astrue, 495
1
F.3d 625, 639 (9th Cir. 2007) (“[D]aily activities may be grounds for
2
an adverse credibility finding if a claimant is able to spend a
3
substantial part of his day engaged in pursuits involving performance
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of physical functions that are transferable to a work setting.”)
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ALJ noted that Plaintiff indicated she could take care of hygiene and
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perform self-care, cook, do chores, and follow safety precautions.
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(A.R. 14.)
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abilities and social interactions required in order to perform these
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activities
The
The ALJ found that some of the physical and mental
are
the
same
employment.
as
those
reiterated that “[g]enerally, an ALJ should not consider activities
12
like
13
attendance, club activities, or social programs to be substantial
14
gainful activities.”
15
2001).
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be disabled.”
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2001) (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).
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Here, Plaintiff’s reported daily activities are not indicative of her
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ability to work and do not detract from her subjective complaints.
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Thus, the ALJ erred in discrediting Plaintiff because she was engaged
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in some limited activities of daily living.
oneself,
household
Ninth
and
11
of
the
obtaining
maintaining
care
However,
for
10
taking
(Id.)
necessary
tasks,
Circuit
hobbies,
has
school
Lewis v. Apfel, 236 F.3d 503, 516 (9th Cir.
“One does not need to be ‘utterly incapacitated’ in order to
Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir.
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Nevertheless, an error by the ALJ with respect to one or more
24
factors in a credibility determination may be harmless if the ALJ’s
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“remaining
determination
were
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adequately supported by substantial evidence in the record.”
See
27
Carmickle v. Commissioner, 533 F.3d 1155, 1162-63 (9th Cir. 2008);
28
Robbins
v.
reasoning
Soc.
Sec.
and
ultimate
Admin.,
466
6
credibility
F.3d
880,
885
(9th
Cir.
2006)
1
(quoting Stout v. Comm’r, 454 F.3d 1050, 1055 (9th Cir. 2006)) (the
2
Court will not reverse the Commissioner’s decision if it is based on
3
harmless error, which exists only when it is “clear from the record
4
that
5
nondisability determination.’”).
6
reasons
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fully supported by the record.
an
ALJ’s
for
error
was
discrediting
‘inconsequential
to
the
ultimate
Here, the ALJ provided acceptable
Plaintiff’s
testimony,
each
of
which
is
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First, the ALJ noted that the findings of Plaintiff’s doctors
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regarding her mental impairments were inconsistent with her claims of
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continuing
12
hospitalized
13
suicide, the treatment notes submitted by Christopher E. Berger, M.D.
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indicate that her symptoms of depression were subsequently controlled
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with medication.
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“stable and improving” and Plaintiff reported feeling better after
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treatment.
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showed
19
suggested to Plaintiff that she volunteer or do work as a caregiver.
20
(A.R.
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confirmed
no
symptoms. 1
debilitating
in
February
2010
(A.R. 273—75.)
and
Although
September
Plaintiff
2011
for
was
attempting
Dr. Berger found that Plaintiff was
Moreover, her psychotic episodes were resolved, and she
signs
275.)
of
On
these
paranoia.
April
24,
findings,
(A.R.
2012,
a
concluding
273—75.)
physician
that
Dr.
at
Berger
Norton
Plaintiff’s
even
Clinic
“depression
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The ALJ may consider objective medical evidence in determining
a claimant’s credibility regarding subjective symptom testimony, as
long as the ALJ does not reject such testimony solely because it is
unsubstantiated by the objective medical evidence.
20 C.F.R. §§
404.1529(c), 416.929(c); Rollins v. Massanari, 261 F.3d 853, 856, 857
(9th Cir. 2001) (“While subjective pain testimony cannot be rejected
on the sole ground that it is not fully corroborated by objective
medical evidence, the medical evidence is still a relevant factor in
determining the severity of the claimant’s pain and its disabling
effects.”).
7
1
[was] under much better control with Dr. Burger [sic] & her new
2
meds.”
3
Unwalla,
4
medications]
5
treatment.”
(A.R. 296.)
M.D.,
Furthermore, on October 12, 2012, Khushro
found
and
that
seem[ed]
to
Plaintiff
be
doing
was
“adhering
well
with
the
[to
her
current
(A.R. 306.) 2
6
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The
ALJ
also
concluded
that
Plaintiff
stopped
working
for
8
reasons other than disability, noting that Plaintiff quit her job as
9
a nurse in order to take care of her sick mother.
(A.R. 14.)
In
10
assessing credibility, an ALJ may consider the fact that a claimant
11
stopped working for reasons other than disability.
12
Massanari, 268 F.3d 824, 828 (9th Cir. 2001).
13
despite her decision to stop working in 2001, she developed a severe
14
medical impairment years later when she was hospitalized in 2010 and
15
2011.
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20
21
22
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24
25
26
27
(Joint Stip. 6.)
See Bruton v.
Plaintiff argues that
However, Plaintiff cannot demonstrate that
2
Plaintiff testified at the hearing that after her September
2011 hospitalization, she also sought treatment with a psychiatrist
until July 2012 and then a therapist on a weekly basis. (A.R. 25—26;
30—31.)
Plaintiff argues that the ALJ should have attempted to
obtain the therapist and psychiatrist records which were not present
in the medical record. Plaintiff is correct that the ALJ has a duty
to fully and fairly develop the record and assure that the claimant’s
interests are considered. See Smolen v. Chater, 80 F.3d 1273, 1288
(9th Cir. 1996). However, the therapist and psychiatrist were never
mentioned in the disability reports Plaintiff completed, (see A.R.
165—84;
188—203),
and
Plaintiff
has
neither
suggested
nor
demonstrated that the missing records contain evidence that
Plaintiff’s disability cannot be controlled with medication and
treatment. Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1008
(9th Cir. 2006) (“Impairments that can be controlled effectively with
medication are not disabling for the purpose of determining
eligibility for [disability] benefits.”).
Thus, the Court is not
persuaded that the ALJ’s failure to obtain these records requires
reversal and remand.
28
8
1
these
hospitalizations
2
which
3
Plaintiff’s hospital records indicate that her chief complaint was
4
“stress of being unemployed.”
5
Court
6
following
7
Accordingly,
8
determination.
prevents
noted,
resulted
Plaintiff
from
Plaintiff’s
the
from
severe
working.
As
(A.R. 231.)
mental
hospitalizations.
substantial
a
status
(A.R.
evidence
impairment
Defendant
notes,
Additionally, as the
improved
273,
supports
medical
the
dramatically
296,
304,
306.)
ALJ’s
credibility
9
10
B.
The ALJ’s Holding That Plaintiff Can Perform The Jobs Such as
11
Small Products Assembler and Garment Folder Is Not Inconsistent
12
With The DOT
13
14
The ALJ determined, based on the testimony of vocational expert
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(“VE”) Mary Jesko, that Plaintiff is capable of performing the jobs
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of
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available in significant numbers in the national economy.
18
18.)
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ALJ’s holding that the Plaintiff can perform these jobs, because the
20
ALJ determined in his RFC that Plaintiff’s impairments will cause her
21
to miss work 1 to 2 times a month.
small
parts
assembler
and
garment
folder,
both
of
which
are
(A.R. 17—
Plaintiff contends that there is a DOT inconsistency in the
(Joint Stip. 25.)
22
23
An
ALJ
may
not
rely
on
a
VE’s
testimony
regarding
the
24
requirements of a particular job without first inquiring whether the
25
testimony
26
Massachi v. Astrue, 486 F.3d 1149, 1152—53 (9th Cir. 2007).
27
the ALJ asked the VE whether missing work 1-2 days a month would
28
change his testimony that Plaintiff could perform the jobs of small
conflicts
with
the
DOT,
9
and
if
so,
why
it
conflicts.
Here,
1
products assembler and garment folder.
(A.R. 40.)
The VE responded
2
that 1-2 days “would be an acceptable degree of absence from the
3
workplace, so that would not have an adverse impact.”
4
The VE also testified that his testimony was consistent with the
5
Dictionary of Occupational Titles.
(A.R. 41.)
(A.R. 40.)
6
7
Accordingly, the ALJ was entitled to rely on the VE’s testimony.
8
See Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (“A VE’s
9
recognized expertise provides the necessary foundation for his or her
10
testimony.”); Lair v. Colvin, No. 5:12-cv-00932—SP, 2013 WL 1247708,
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*4 (C.D. Cal. Mar. 23, 2013) (“Because the VE testified that there
12
was no conflict between plaintiff’s RFC and the DOT and because
13
Plaintiff’s counsel did not question the VE regarding any alleged
14
inconsistencies between the DOT and plaintiff’s RFC, the ALJ was
15
entitled to rely upon the VE’s testimony.”).
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ORDER
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For the foregoing reasons, the decision of the Commissioner is
affirmed.
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LET JUDGMENT BE ENTERED ACCORDINGLY.
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Dated: June 15, 2015.
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_/s/__________________________
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE
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