John Tony Posadas v. Carolyn W Colvin

Filing 27

MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF COMMISSIONER by Magistrate Judge Alexander F. MacKinnon. IT IS ORDERED that Judgment be entered affirming the decision of the Commissioner and dismissing this action with prejudice. (See document for further details.) (sbou)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 Case No. ED CV 16-00034 AFM JOHN TONY POSADAS, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF COMMISSIONER Defendant. 17 18 I. 19 BACKGROUND 20 Plaintiff John Tony Posadas filed his application for disability benefits under 21 Title II of the Social Security Act on August 26, 2013. After denial on initial 22 review and on reconsideration, a hearing took place before an Administrative Law 23 Judge (ALJ) on May 12, 2015. In a decision dated July 24, 2015, the ALJ found 24 that Plaintiff was not disabled within the meaning of the Social Security Act for the 25 period from July 14, 2012 through the date of the decision. The Appeals Council 26 declined to set aside the ALJ’s unfavorable decision in a notice dated November 13, 27 2015. Plaintiff filed a Complaint herein on January 6, 2016, seeking review of the 28 Commissioner’s denial of his application for benefits. 1 In accordance with the Court’s Order Re: Procedures in Social Security 2 Appeal, Plaintiff filed a memorandum in support of the complaint on October 11, 3 2016 (“Pl. Mem.”), and the Commissioner filed a memorandum in support of her 4 answer on November 15, 2016 (“Def. Mem.”). Plaintiff did not file a reply. This 5 matter now is ready for decision. 1 6 II. 7 DISPUTED ISSUE 8 The Plaintiff raises the following disputed issue: Whether the ALJ erred in 9 reliance on the testimony of the vocational expert (“VE”) in determining Plaintiff 10 could perform other work. 11 III. 12 STANDARD OF REVIEW 13 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 14 determine whether the Commissioner’s findings are supported by substantial 15 evidence and whether the proper legal standards were applied. See Treichler v. 16 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Substantial 17 evidence means “more than a mere scintilla” but less than a preponderance. See 18 Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d 19 1028, 1035 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a 20 reasonable mind might accept as adequate to support a conclusion.” Richardson, 21 402 U.S. at 401. This Court must review the record as a whole, weighing both the 22 evidence that supports and the evidence that detracts from the Commissioner’s 23 conclusion. Lingenfelter, 504 F.3d at 1035. Where evidence is susceptible of more 24 than one rational interpretation, the Commissioner’s decision must be upheld. See 25 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 26 27 28 1 The decision in this case is being made based on the pleadings, the administrative record (“AR”), the parties’ memoranda in support of their pleadings, and plaintiff’s reply. 2 1 IV. 2 FIVE-STEP EVALUATION PROCESS 3 The Commissioner (or ALJ) follows a five-step sequential evaluation process 4 in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; 5 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995), as amended April 9, 1996. 6 In the first step, the Commissioner must determine whether the claimant is 7 currently engaged in substantial gainful activity; if so, the claimant is not disabled 8 and the claim is denied. Id. If the claimant is not currently engaged in substantial 9 gainful activity, the second step requires the Commissioner to determine whether 10 the claimant has a “severe” impairment or combination of impairments significantly 11 limiting his ability to do basic work activities; if not, a finding of nondisability is 12 made and the claim is denied. Id. If the claimant has a “severe” impairment or 13 combination of impairments, the third step requires the Commissioner to determine 14 whether the impairment or combination of impairments meets or equals an 15 impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. part 16 404, subpart P, appendix 1; if so, disability is conclusively presumed and benefits 17 are awarded. Id. If the claimant’s impairment or combination of impairments does 18 not meet or equal an impairment in the Listing, the fourth step requires the 19 Commissioner to determine whether the claimant has sufficient “residual functional 20 capacity” to perform his past work; if so, the claimant is not disabled and the claim 21 is denied. Id. The claimant has the burden of proving that he is unable to perform 22 past relevant work. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). If the 23 claimant meets this burden, a prima facie case of disability is established. Id. The 24 Commissioner then bears the burden of establishing that the claimant is not 25 disabled, because he can perform other substantial gainful work available in the 26 national economy. Id. The determination of this issue comprises the fifth and final 27 step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 28 828 n.5; Drouin, 966 F.2d at 1257. 3 1 V. 2 THE ALJ’S APPLICATION OF THE FIVE-STEP PROCESS 3 At step one, the ALJ found that Plaintiff had not engaged in substantial 4 gainful activity since July 14, 2012, the alleged onset date. (AR 24.) At step two, 5 the ALJ found that Plaintiff had the following severe impairments: osteoarthritis of 6 the bilateral knees; internal derangement status post right knee arthroscopy; 7 syncope; disorder of the right upper extremity; and mild obesity. (Id.) At step 8 three, the ALJ found that Plaintiff does not have an impairment or combination of 9 impairments that meets or medically equals the severity of one of the listed 10 impairments. (AR 25.) At step four, the ALJ found that Plaintiff had the residual 11 functional capacity (“RFC”) to perform sedentary work as defined in 20 C.F.R. 12 §§ 404.1567(a) as follows: 13 [Plaintiff] can lift and/or carry 10 pounds occasionally and frequently, 14 stand or walk 2 hours in an eight-hour day with use of a cane for 15 ambulation, sit 6 hours in an 8-hour workday with no prolonged 16 walking greater than 15 minutes (with the ability to use a cane). The 17 [plaintiff] can sit 6 hours in an 8-hour workday with the ability to stand 18 and stretch not to exceed 10 percent of the day. [Plaintiff] cannot 19 kneel, crawl, squat, repetitively climb, or work with hazards such as 20 working at unprotected heights, operating fast or dangerous 21 machinery, or driving commercial vehicles. In addition, [plaintiff] 22 cannot walk on uneven terrain, perform forceful griping and grasping 23 with the right upper extremity, or climb ladders, ropes or scaffolds. 24 (AR 25.) 25 Finally, at step five, based on the VE’s testimony, the ALJ concluded that 26 Plaintiff could not perform his past relevant work, but has acquired work skills 27 from past relevant work that are transferable to other occupations with jobs existing 28 in significant numbers in the national economy (such as check cashier and 4 1 telephone solicitor). (AR 29.) Accordingly, the ALJ concluded that Plaintiff was 2 not disabled as defined by the Social Security Act from July 14, 2012 through the 3 date of the decision. (AR 30.) 4 VI. 5 DISCUSSION 6 At step five of the sequential evaluation process, “the burden shifts to the 7 Commissioner to demonstrate that the claimant is not disabled and can engage in 8 work that exists in significant numbers in the national economy.” Hill v. Astrue, 9 698 F.3d 1153, 1161 (9th Cir. 2012); see also 20 C.F.R. §§ 404.1520(a)(4)(v), 10 416.920(a)(4)(v). The Dictionary of Occupational Titles (“DOT”) is the 11 Commissioner’s “primary source of reliable job information” and creates a rebuttal 12 presumption as to a job classification. See Johnson v. Shalala, 60 F.3d 1428, 1434 13 n.6, 1435 (9th Cir. 1995); see also Tommasetti v. Astrue, 533 F.3d 1035, 1042 (9th 14 Cir. 2008). Where, as here, the testimony of a VE is used at step five, the VE must 15 identify a specific job or jobs in the national economy having requirements that the 16 claimant’s physical and mental abilities and vocational qualifications would satisfy. 17 See Osenbrock v. Apfel, 240 F.3d 1157, 1162-63 (9th Cir. 2001); Burkhart v. 18 Bowen, 856 F.2d 1335, 1340 n.3 (9th Cir. 1988); 20 C.F.R. §§ 404.1566(b), 19 416.966(b). 20 In the present case, the dispute focuses on the restriction in the RFC of 21 stretching or standing up to 10 percent of an 8 hour workday, i.e., up to 48 minutes 22 a day, referred to as a “sit/stand option.” Plaintiff does not challenge the accuracy 23 of the hypothetical presented to the VE, but contends that the sit/stand option in the 24 RFC conflicts with the DOT description for the jobs of check cashier and telephone 25 solicitor and that the ALJ erred by not eliciting a reasonable explanation from the 26 VE for the deviation under Social Security Ruling (SSR) 00-4p. 27 Commissioner, in response, argues that there is no conflict with the DOT because 28 the DOT is silent on this “sit/stand option” and that the ALJ satisfied SSR 00-4p by 5 The 1 verifying that the VE based her testimony on the DOT and would explain if there 2 were any deviation from the DOT. For the reasons set forth below, the Court finds 3 that the ALJ did not err in her reliance on the VE. 4 In response to initial questioning by the ALJ, the VE testified that she 5 understood she needed to advise the ALJ of any conflict and to give the basis of 6 her opinion 7 DOT. (AR 60-61.) Using the assumption of the limited range of sedentary work as 8 stated in the RFC, the VE testified that a hypothetical individual could not do 9 Plaintiff’s past work. if the VE gave an opinion that conflicted with information in the (AR 67.) However, the VE also testified that the 10 hypothetical individual (with certain transferrable cashiering and sales skills from 11 Plaintiff’s prior work) could perform the jobs of a check cashier (DOT 211.462- 12 026) and a telephone solicitor (DOT 299.357-014). (AR 67-68.) The VE did not 13 advise the ALJ of any conflict between her opinion and the DOT and, therefore, did 14 not provide an explanation of a deviation from the DOT. Relying on the VE’s 15 testimony, the ALJ found that Plaintiff could perform a significant number of jobs 16 in the national economy and was not disabled. (AR 30.) 17 Under Ninth Circuit law interpreting SSR 00-4p, an ALJ (i) must ask a VE if 18 the evidence he or she is providing is consistent with the DOT and (ii) must “obtain 19 a reasonable explanation for any apparent conflict.” See Massachi v. Astrue, 486 20 F.3d 1149, 1152-53 (9th Cir. 2007). In the present case, the ALJ substantially 21 complied with the first requirement by obtaining the VE’s agreement that if “if you 22 give me an opinion that conflicts with information in the DOT, you need to advise 23 me of the conflict . . . .” (AR 60-61.) By not advising the ALJ of a conflict, the 24 VE implicitly found there was none. 25 descriptions for check cashier (DOT 211.462-026) and telephone solicitor (DOT 26 299.357-014) do not expressly address the need for the sit/stand option. (See Pl. 27 Mem. at 9 (“Because the DOT does not address sit/stand options . . . .”)) Plaintiff 28 nevertheless contends that the ALJ was required to obtain a reasonable explanation 6 And Plaintiff agrees that the DOT 1 of an “apparent conflict” between the VE’s opinion and the DOT. Thus, the issue is 2 whether a conflict existed that required an explanation from the VE 3 DOT’s silence on the sit/stand option. despite the 4 The recent Ninth Circuit decision in Gutierrez v. Colvin, __ F.3d __, 2016 5 WL 6958646 (9th Cir. Nov. 29, 2016), discussed the approach for determining 6 whether a conflict exists between VE testimony and the DOT: “For a difference 7 between an expert’s testimony and the [DOT’s] listings to be fairly characterized as 8 a conflict, it must be obvious or apparent. This means that the testimony must be at 9 odds with the [DOT’s] listing of job requirements that are essential, integral or 10 expected. . . . [W]here the job itself is a familiar one like cashiering less 11 scrutiny by the ALJ is required.” Id. at *2. In Gutierrez, the DOT description for a 12 cashier stated that the job required frequent reaching, but the RFC did not permit 13 lifting of the right arm above shoulder. In holding that there was no apparent or 14 obvious conflict, the Ninth Circuit looked at the type of duties listed in the DOT 15 description, applied common knowledge regarding the normal work of a cashier, 16 and concluded that the typical cashier did not need to reach overhead frequently: 17 “[A]n ALJ must ask follow up questions of a vocational expert when the expert’s 18 testimony is either obviously or apparently contrary to the [DOT], but the 19 obligation doesn’t extend to unlikely situation or circumstances. . . . Given how 20 uncommon it is for most cashiers to have to reach overhead, we conclude that there 21 was no apparent or obvious conflict between the expert’s testimony and the 22 [DOT].” Id. at *3. 23 Gutierrez, however, did not address whether the DOT’s silence on a sit/stand 24 option is in obvious or apparent conflict with a VE’s testimony that a person 25 requiring a sit/stand option can perform a particular job. 26 controlling Ninth Circuit authority on this question, although a number of 27 unpublished decisions have addressed it. See Manley v. Colvin, 2016 WL 7191541 28 at *3-4 (C.D. Cal. Dec. 12, 2016) (discussing cases). For example, Dewey v. 7 Indeed, there is no 1 Coleman, 650 Fed. Appx. 512 (9th Cir. 2016), recently held that there was no 2 conflict where the DOT was silent on whether the particular jobs in question 3 allowed for a sit/stand option and the testimony of the VE indicated that claimant 4 (who required a sit/stand option) could perform those jobs. 5 Here, the Court likewise concludes that there is not an apparent or obvious 6 conflict between the pertinent DOT descriptions and the requirement that Plaintiff 7 needs to stand or stretch at least ten percent of the day. 8 describes the duties of a check cashier as “Cashes checks, prepares money orders, 9 receives payment for utilities bills, and collects and records fees charged for check- 10 cashing service. May receive payment and issue receipts for such items as license 11 plates.” 12 requirements of this job would not require sitting all of the time and would not 13 prevent standing or stretching for a total of 48 minutes over an eight hour day. 14 Tasks such as receiving payments and collecting fees may well be done standing up 15 some of the time. Similarly, the duties of a telephone solicitor under DOT 299.357- 16 014 include calling prospective customers, recording names of customers solicited, 17 developing lists of prospects, typing reports, and contacting drivers 18 which prohibits the 10% standing or stretching required by Plaintiff. Moreover, 19 according to the DOT, both the check cashier and telephone solicitor jobs are 20 sedentary work, involve sitting most of the time, and may include walking or 21 standing for brief periods occasionally (i.e. up to 1/3 of the time). The essential, 22 integral or expected requirements of these job duties do not prevent Plaintiff from 23 changing his sitting and standing as needed, and do not preclude Plaintiff from 24 standing or stretching the required 48 minutes over the course of the day. It would 25 /// 26 /// 27 /// 28 /// DOT 211.462-026 In the language of Gutierrez, the “essential, integral or expected” 8 none of 1 be a very unlikely or uncommon circumstance where a check cashier or telephone 2 solicitor could not stand or stretch as required in the RFC.2 3 Finally, the Court finds persuasive the reasoning of Laufenberg v. Colvin, 4 2016 WL 6989756 at *9 (C.D. Cal. Nov. 29, 2016), that to hold a conflict exists in 5 circumstances such as these “would mean that VEs always create conflicts with the 6 DOT whenever they mention any of the multitude of things about a job not 7 expressly addressed in the DOT.” No controlling authority requires a finding of 8 that type of conflict. 9 In sum, the Court concludes that there was not an obvious or apparent 10 conflict between the RFC and the DOT descriptions check cashier and telephone 11 solicitor. Accordingly, the ALJ was not required to ask the VE to provide an 12 explanation of any deviation from the DOT, and there was no error in the ALJ’s 13 reliance on the VE’s testimony in making the step five determination of other work 14 that Plaintiff could perform. * 15 * * IT THEREFORE IS ORDERED that Judgment be entered affirming the 16 17 * decision of the Commissioner and dismissing this action with prejudice. 18 19 DATED: December 20, 2016 20 21 ALEXANDER F. MacKINNON UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 2 The Court also notes that check cashier and telephone solicitor are relatively familiar jobs, thereby requiring less scrutiny by the ALJ. See Gutierrez, 2016 WL 6958646 at *2. 9

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?