Harlan Parker Edmonds v. Carolyn W. Colvin

Filing 26

MEMORANDUM OPINION AND ORDER by Magistrate Judge Sheri Pym. IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits, and dismissing the complaint with prejudice. (See document for further details.) (iva)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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11 HARLAN PARKER EDMONDS,
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Plaintiff,

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v.

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NANCY A. BERRYHILL, Acting
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Administration,
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Defendant.
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Case No. ED CV 15-2027-SP
MEMORANDUM OPINION AND
ORDER

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I.

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INTRODUCTION

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On October 1, 2015, plaintiff Harlan Parker Edmonds filed a complaint

22 against defendant, the Commissioner of the Social Security Administration
23 (“Commissioner”),1 seeking a review of a denial of a period of disability, disability
24 insurance benefits (“DIB”), and supplemental security income (“SSI”). The parties
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Pursuant to Fed. R. Civ. P. 25(d), Nancy A. Berryhill, the current Acting
27 Commissioner of Social Security Administration, has been substituted as the
28 defendant.
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1 have fully briefed the matters in dispute, and the court deems the matter suitable
2 for adjudication without oral argument.
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Plaintiff presents one disputed issue for decision, whether the Administrative

4 Law Judge (“ALJ”) erred at step five. Plaintiff’s Memorandum in Support of
5 Complaint (“P. Mem.”) at 3-10; Memorandum in Support of Defendant’s Answer
6 (“D. Mem.”) at 2-6.
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Having carefully studied the parties’ memoranda on the issue in dispute, the

8 Administrative Record (“AR”), and the decision of the ALJ, the court concludes
9 that, as detailed herein, the ALJ did not err at step five. Consequently, the court
10 affirms the decision of the Commissioner denying benefits.
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II.

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FACTUAL AND PROCEDURAL BACKGROUND

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Plaintiff, who was forty-five years old on the alleged disability onset date, is

14 a high school graduate who completed one year of college. AR at 43, 59, 163.
15 Plaintiff has past relevant work as a service manager. Id. at 55.
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On April 16, 2012, plaintiff protectively filed applications for a period of

17 disability, DIB, and SSI, alleging an onset date of May 7, 2010 due to chronic
18 obstructive pulmonary disease (“COPD”), degenerative disc disease, and right
19 knee problems.2 Id. at 59, 65. The Commissioner denied plaintiff’s applications
20 initially and upon reconsideration, after which he filed a request for a hearing. Id.
21 at 87-90, 94-98.
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On November 26, 2013, plaintiff, represented by counsel, appeared and

23 testified at a hearing before the ALJ. Id. at 35-58. The ALJ also heard testimony
24 from Gloria Lasoff, a vocational expert (“VE”). Id. at 54-58. At the hearing,
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Plaintiff filed three prior applications for DIB and SSI, on April 9, 2008 and
27 February 24, 2009. AR at 60. The prior applications were denied at the initial
28 level. Id.
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1 plaintiff amended the application to allege a closed period from May 7, 2010
2 through February 4, 2013.3 Id. at 38, 40. On January 13, 2014, the ALJ denied
3 plaintiff’s claim for benefits. Id. at 24-31.
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Applying the well-known five-step sequential evaluation process, the ALJ

5 found, at step one, that plaintiff had not engaged in substantial gainful activity
6 from May 7, 2010 through February 4, 2013, the amended alleged closed period.
7 Id. at 26.
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At step two, the ALJ found plaintiff suffered from the following severe

9 impairments: COPD; degenerative disc disease; degenerative joint disease; and
10 obesity. Id.
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At step three, the ALJ found plaintiff’s impairments, whether individually or

12 in combination, did not meet or medically equal one of the listed impairments set
13 forth in 20 C.F.R. part 404, Subpart P, Appendix 1 (the “Listings”). Id. at 27.
The ALJ then assessed plaintiff’s residual functional capacity (“RFC”),4 and

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15 determined he had the RFC to perform light work with the limitations that plaintiff:
16 could occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and
17 stairs; could not climb ladders, ropes, or scaffolds; could not be exposed to
18 hazards; could not have concentrated exposure to pulmonary irritants, extreme
19 cold, or vibration; and required a job where he could sit and stand or walk as
20 needed. Id. at 27.
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On February 4, 2013, plaintiff re-engaged in substantial gainful activity as a
service manager. AR at 39.
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Residual functional capacity is what a claimant can do despite existing
25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 115526 56 n.5-7 (9th Cir. 1989). “Between steps three and four of the five-step evaluation,
the ALJ must proceed to an intermediate step in which the ALJ assesses the
27 claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151
28 n.2 (9th Cir. 2007).
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The ALJ found, at step four, that plaintiff was unable to perform his past

2 relevant work as a service manager. Id. at 29-30.
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At step five, the ALJ found that given plaintiff’s age, education, work

4 experience, and RFC, there were jobs that existed in significant numbers in the
5 national economy that plaintiff could perform, including office helper, information
6 clerk, and cashier II. Id. at 30-31. Consequently, the ALJ concluded plaintiff did
7 not suffer from a disability as defined by the Social Security Act (“Act” or “SSA”).
8 Id. at 31.
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Plaintiff filed a timely request for review of the ALJ’s decision, which was

10 denied by the Appeals Council. Id. at 9-11. The ALJ’s decision stands as the final
11 decision of the Commissioner.
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III.

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STANDARD OF REVIEW

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This court is empowered to review decisions by the Commissioner to deny

15 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security
16 Administration must be upheld if they are free of legal error and supported by
17 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001)
18 (as amended). But if the court determines that the ALJ’s findings are based on
19 legal error or are not supported by substantial evidence in the record, the court may
20 reject the findings and set aside the decision to deny benefits. Aukland v.
21 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d
22 1144, 1147 (9th Cir. 2001).
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“Substantial evidence is more than a mere scintilla, but less than a

24 preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such
25 “relevant evidence which a reasonable person might accept as adequate to support
26 a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276
27 F.3d at 459. To determine whether substantial evidence supports the ALJ’s
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1 finding, the reviewing court must review the administrative record as a whole,
2 “weighing both the evidence that supports and the evidence that detracts from the
3 ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be
4 affirmed simply by isolating a specific quantum of supporting evidence.’”
5 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th
6 Cir. 1998)). If the evidence can reasonably support either affirming or reversing
7 the ALJ’s decision, the reviewing court “‘may not substitute its judgment for that
8 of the ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir.
9 1992)).
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IV.

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DISCUSSION

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Plaintiff contends the ALJ erred at step five because he erroneously relied on

13 the testimony of the vocational expert without asking the VE to resolve a conflict.
14 P. Mem. at 3-10. The ALJ determined plaintiff required a sit/stand option and the
15 VE identified three jobs plaintiff could perform with that limitation. But the
16 Dictionary of Occupational Titles (“DOT”) is silent on the sit/stand option for
17 those jobs. See id. Plaintiff contends this constitutes a conflict and the ALJ was
18 required to inquire about the conflict in order to provide the VE the opportunity to
19 explain the deviation. See id. Without the explanation, plaintiff argues the VE’s
20 testimony did not constitute substantial evidence. See id.
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At step five, the burden shifts to the Commissioner to show that the claimant

22 retains the ability to perform other gainful activity. Lounsburry v. Barnhart, 468
23 F.3d 1111, 1114 (9th Cir. 2006). To support a finding that a claimant is not
24 disabled at step five, the Commissioner must provide evidence demonstrating that
25 other work exists in significant numbers in the national economy that the claimant
26 can perform, given his or her age, education, work experience, and RFC. 20
27 C.F.R. §§ 404.1512(f), 416.912(f).
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ALJs routinely rely on the DOT “in evaluating whether the claimant is able

2 to perform other work in the national economy.” Terry v. Sullivan, 903 F.2d 1273,
3 1276 (9th Cir. 1990) (citations omitted); see also 20 C.F.R. §§ 404.1566(d)(1),
4 416.966(d)(1) (DOT is source of reliable job information). The DOT is the
5 rebuttable presumptive authority on job classifications. Johnson v. Shalala, 60
6 F.3d 1428, 1435 (9th Cir. 1995). An ALJ may not rely on a VE’s testimony
7 regarding the requirements of a particular job without first inquiring whether the
8 testimony conflicts with the DOT, and if so, the reasons therefor. Massachi, 486
9 F.3d at 1152-53 (citing Social Security Ruling (“SSR”) 00-4p). But failure to so
10 inquire can be deemed harmless error where there is no apparent conflict or the VE
11 provides sufficient support to justify deviation from the DOT. Id. at 1154 n.19.
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In order for an ALJ to accept a VE’s testimony that contradicts the DOT, the

13 record must contain “‘persuasive evidence to support the deviation.’” Id. at 1153
14 (quoting Johnson, 60 F.3d at 1435). Evidence sufficient to permit such a deviation
15 may be either specific findings of fact regarding the claimant’s residual
16 functionality, or inferences drawn from the context of the expert’s testimony.
17 Light v. Soc. Sec. Admin., 119 F.3d 789, 793 (9th Cir. 1997) (citations omitted).
18 Where the ALJ fails to obtain an explanation for and resolve an apparent conflict –
19 even where the VE did not identify the conflict – the ALJ errs. See Hernandez v.
20 Astrue, 2011 WL 223595, at *2-*5 (C.D. Cal. Jan. 21, 2011) (where VE incorrectly
21 testified there was no conflict between her testimony and DOT, ALJ erred in
22 relying on VE’s testimony and failing to acknowledge or reconcile the apparent
23 conflict); Mkhitaryan v. Astrue, 2010 WL 1752162, at *3 (C.D. Cal. Apr. 27, 2010)
24 (“Because the ALJ incorrectly adopted the VE’s conclusion that there was no
25 apparent conflict [and] the ALJ provided no explanation for the deviation,” the
26 ALJ “therefore committed legal error warranting remand.”).
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At the outset of the VE’s testimony here, the ALJ asked the VE if she was

2 familiar with the DOT, to which she replied in the affirmative. AR at 54. Then, in
3 response to a hypothetical person with the same RFC as plaintiff, the VE testified
4 that such person could perform work existing in the national economy including
5 the jobs of office helper (DOT 239.567-010), information clerk (DOT 237.3676 018), and cashier II (DOT 211.462-010), all of which are light work. Id. at 56.
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The ALJ’s failure to ask the VE whether her testimony conflicted with the

8 DOT constituted error. Merely asking the VE whether she was familiar with the
9 DOT was not equivalent to asking the VE whether her testimony conflicted with it.
10 Nor was it equivalent to asking the VE to provide testimony consistent with the
11 DOT. As such, the ALJ erred.
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Nevertheless, the error was harmless because there was no conflict, either

13 obvious or apparent. See Massachi, 486 F.3d at 1154, n.19. The DOT is silent on
14 whether the identified jobs – or any of the jobs it lists – allow for a sit/stand option.
15 Thus, it cannot be said there was an obvious conflict. The question then is whether
16 there was an apparent conflict that required the ALJ to conduct a further inquiry.
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There is no controlling Ninth Circuit authority, and the courts in the circuit

18 have been divided, on the issue of whether there is an apparent conflict between a
19 VE’s testimony that a claimant who requires a sit/stand option could perform
20 certain jobs and the DOT when it is silent on the sit/stand option. Compare
21 Coleman v. Astrue, 423 Fed. Appx. 754, 756 (9th Cir. 2011) (finding there was an
22 apparent conflict between the VE’s testimony that a claimant with a sit/stand
23 option could perform certain sedentary and light work and the DOT); Urena v.
24 Colvin, 2015 WL 5826786, at *5 (C.D. Cal. Sept. 30, 2015) (noting cases suggest
25 there is an apparent conflict between the DOT and VE when the VE testifies there
26 are jobs available for those who require a sit/stand option); Hall v. Colvin, 2015
27 WL 5708465, at *5 (C.D. Cal. Sept. 29, 2015) (there is a conflict when the VE
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1 testified there were light jobs that did not have a sit/stand option but then failed to
2 explain why the identified jobs could be performed with a sit/stand option); with
3 Dewey v. Colvin, 650 Fed. Appx. 512, 514 (9th Cir. 2016) (there was no conflict
4 between the VE’s testimony about a claimant who requires a sit/stand option and
5 DOT, where DOT was silent on whether the jobs allowed for a sit/stand option);
6 Posadas v. Colvin, 2016 WL 7480252, at *4 (C.D. Cal. Dec. 29, 2016) (ALJ was
7 not required to ask the VE for an explanation because there was no apparent or
8 obvious conflict between the VE’s testimony and DOT, which was silent on the
9 sit/stand option); Villalpando v. Colvin, 2016 WL 6839342, at *5 (C.D. Cal. Nov.
10 21, 2016) (agreeing “there can be no conflict between the vocational expert’s
11 testimony and the DOT where . . . the DOT is silent on the subject in question”).
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The Third, Sixth, and Seventh Circuits have issued non-controlling opinions

13 on this issue. All found there was no conflict between a vocational expert’s
14 testimony and the DOT when the DOT is silent on the sit/stand option. See
15 Sanborn v. Comm’r, 613 Fed. Appx. 171, 177 (3d Cir. 2015); Forrest v. Comm’r,
16 591 Fed. Appx. 359, 364 (6th Cir. 2014); Zblewski v. Astrue, 302 Fed. Appx. 488,
17 494 (7th Cir. 2008).
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Although there is a lack of controlling authority settling the issue, a recent

19 Ninth Circuit decision provides guidance. In Gutierrez v. Colvin, the Ninth Circuit
20 held that for a conflict to be apparent, the VE’s testimony must be at odds with the
21 essential, integral, or expected requirements of a job. 844 F.3d 804, 808 (9th Cir.
22 2016) (regarding whether there was an apparent conflict between the VE’s
23 testimony that a claimant, who was precluded from lifting her right arm above her
24 shoulder, could perform the job of cashier when the DOT specified the job
25 involved frequent reaching). Although Gutierrez did not address the exact issue
26 here, it presented the approach for determining whether an apparent conflict exists.
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Looking at the duties of office helper, information clerk, and cashier II as

2 described by the DOT, none of the “essential, integral, or expected” requirements
3 of the job would require plaintiff to sit or stand the entire time without changing
4 positions, with the possible exception of office helper. Both the information clerk
5 (DOT 237.367-018) and cashier II (DOT 211.462-010) positions involve assisting
6 customers, either by providing them with travel information or by receiving
7 payment from customers for goods or services received. There is nothing in the
8 “essential, integral, or expected” duties to suggest these jobs could not be
9 performed while either sitting or standing, and with the option to change positions.
10 The office helper position (DOT 239.567-010) contemplates the employee will
11 perform any combination of a variety of duties in a business or commercial office,
12 most of which would appear to involve frequent changes of position and could well
13 accommodate a sit/stand option. But because the possible duties include
14 specializing in deliveries between departments, which might require extensive
15 walking and standing, it is possible some portion of office helper jobs could not
16 readily accommodate a sit/stand option.
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Even if the court assumes there may be an apparent conflict as to the office

18 helper position, however, there is none between the VE’s testimony and the DOT
19 when considering the essential, integral, and expected duties of the information
20 clerk and cashier II jobs. Given Gutierrez and the most recent Ninth Circuit
21 opinion on this issue, Dewey, this court thus finds there was no obvious or apparent
22 conflict between the VE’s testimony and the DOT as to the information clerk and
23 cashier II jobs. The VE testified that, combined, these two latter jobs have 57,000
24 positions regionally and 3,042,000 positions nationally. AR at 56. Accordingly,
25 the ALJ’s failure to ask the VE whether there was a conflict was harmless, and the
26 ALJ therefore did not err at step five in concluding there are jobs that exist in
27 significant numbers in the national economy that plaintiff can perform.
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V.

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CONCLUSION

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IT IS THEREFORE ORDERED that Judgment shall be entered

4 AFFIRMING the decision of the Commissioner denying benefits, and dismissing
5 the complaint with prejudice.
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7 DATED: March 31, 2017
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SHERI PYM
United States Magistrate Judge

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