John Tony Posadas v. Carolyn W Colvin

Filing 29

AMENDED MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF COMMISSIONER by Magistrate Judge Alexander F. MacKinnon. Re 27 (See document for details). (ib)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11

Plaintiff,

12
13
14
15

Case No. ED CV 16-00034 AFM

JOHN TONY POSADAS,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

AMENDED
MEMORANDUM OPINION AND
ORDER AFFIRMING DECISION
OF COMMISSIONER

Defendant.

16
17
18

The Memorandum Opinion and Order Affirming Decision of Commissioner,

19

filed on December 20, 2016 (ECF No. 27), is amended on page 9, line 10 to read:

20

. . . conflict between the VE’s testimony and the DOT descriptions for check

21

cashier . . .

22

I.

23

BACKGROUND

24

Plaintiff John Tony Posadas filed his application for disability benefits under

25

Title II of the Social Security Act on August 26, 2013. After denial on initial

26

review and on reconsideration, a hearing took place before an Administrative Law

27

Judge (ALJ) on May 12, 2015. In a decision dated July 24, 2015, the ALJ found

28

that Plaintiff was not disabled within the meaning of the Social Security Act for the

1

period from July 14, 2012 through the date of the decision. The Appeals Council

2

declined to set aside the ALJ’s unfavorable decision in a notice dated November 13,

3

2015. Plaintiff filed a Complaint herein on January 6, 2016, seeking review of the

4

Commissioner’s denial of his application for benefits.

5

In accordance with the Court’s Order Re: Procedures in Social Security

6

Appeal, Plaintiff filed a memorandum in support of the complaint on October 11,

7

2016 (“Pl. Mem.”), and the Commissioner filed a memorandum in support of her

8

answer on November 15, 2016 (“Def. Mem.”). Plaintiff did not file a reply. This

9

matter now is ready for decision. 1

10

II.

11

DISPUTED ISSUE

12

The Plaintiff raises the following disputed issue: Whether the ALJ erred in

13

reliance on the testimony of the vocational expert (“VE”) in determining Plaintiff

14

could perform other work.

15

III.

16

STANDARD OF REVIEW

17

Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to

18

determine whether the Commissioner’s findings are supported by substantial

19

evidence and whether the proper legal standards were applied. See Treichler v.

20

Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Substantial

21

evidence means “more than a mere scintilla” but less than a preponderance. See

22

Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d

23

1028, 1035 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a

24

reasonable mind might accept as adequate to support a conclusion.” Richardson,

25

402 U.S. at 401. This Court must review the record as a whole, weighing both the

26
27
28

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.
1

2

1

evidence that supports and the evidence that detracts from the Commissioner’s

2

conclusion. Lingenfelter, 504 F.3d at 1035. Where evidence is susceptible of more

3

than one rational interpretation, the Commissioner’s decision must be upheld. See

4

Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).

5

IV.

6

FIVE-STEP EVALUATION PROCESS

7

The Commissioner (or ALJ) follows a five-step sequential evaluation process

8

in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920;

9

Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995), as amended April 9, 1996.

10

In the first step, the Commissioner must determine whether the claimant is

11

currently engaged in substantial gainful activity; if so, the claimant is not disabled

12

and the claim is denied. Id. If the claimant is not currently engaged in substantial

13

gainful activity, the second step requires the Commissioner to determine whether

14

the claimant has a “severe” impairment or combination of impairments significantly

15

limiting his ability to do basic work activities; if not, a finding of nondisability is

16

made and the claim is denied. Id. If the claimant has a “severe” impairment or

17

combination of impairments, the third step requires the Commissioner to determine

18

whether the impairment or combination of impairments meets or equals an

19

impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. part

20

404, subpart P, appendix 1; if so, disability is conclusively presumed and benefits

21

are awarded. Id. If the claimant’s impairment or combination of impairments does

22

not meet or equal an impairment in the Listing, the fourth step requires the

23

Commissioner to determine whether the claimant has sufficient “residual functional

24

capacity” to perform his past work; if so, the claimant is not disabled and the claim

25

is denied. Id. The claimant has the burden of proving that he is unable to perform

26

past relevant work. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). If the

27

claimant meets this burden, a prima facie case of disability is established. Id. The

28

Commissioner then bears the burden of establishing that the claimant is not
3

1

disabled, because he can perform other substantial gainful work available in the

2

national economy. Id. The determination of this issue comprises the fifth and final

3

step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at

4

828 n.5; Drouin, 966 F.2d at 1257.

5

V.

6

THE ALJ’S APPLICATION OF THE FIVE-STEP PROCESS

7

At step one, the ALJ found that Plaintiff had not engaged in substantial

8

gainful activity since July 14, 2012, the alleged onset date. (AR 24.) At step two,

9

the ALJ found that Plaintiff had the following severe impairments: osteoarthritis of

10

the bilateral knees; internal derangement status post right knee arthroscopy;

11

syncope; disorder of the right upper extremity; and mild obesity. (Id.) At step

12

three, the ALJ found that Plaintiff does not have an impairment or combination of

13

impairments that meets or medically equals the severity of one of the listed

14

impairments. (AR 25.) At step four, the ALJ found that Plaintiff had the residual

15

functional capacity (“RFC”) to perform sedentary work as defined in 20 C.F.R.

16

§§ 404.1567(a) as follows:

17

[Plaintiff] can lift and/or carry 10 pounds occasionally and frequently,

18

stand or walk 2 hours in an eight-hour day with use of a cane for

19

ambulation, sit 6 hours in an 8-hour workday with no prolonged

20

walking greater than 15 minutes (with the ability to use a cane). The

21

[plaintiff] can sit 6 hours in an 8-hour workday with the ability to stand

22

and stretch not to exceed 10 percent of the day. [Plaintiff] cannot

23

kneel, crawl, squat, repetitively climb, or work with hazards such as

24

working at unprotected heights, operating fast or dangerous

25

machinery, or driving commercial vehicles. In addition, [plaintiff]

26

cannot walk on uneven terrain, perform forceful griping and grasping

27

with the right upper extremity, or climb ladders, ropes or scaffolds.

28

(AR 25.)
4

1

Finally, at step five, based on the VE’s testimony, the ALJ concluded that

2

Plaintiff could not perform his past relevant work, but has acquired work skills

3

from past relevant work that are transferable to other occupations with jobs existing

4

in significant numbers in the national economy (such as check cashier and

5

telephone solicitor). (AR 29.) Accordingly, the ALJ concluded that Plaintiff was

6

not disabled as defined by the Social Security Act from July 14, 2012 through the

7

date of the decision. (AR 30.)

8

VI.

9

DISCUSSION

10

At step five of the sequential evaluation process, “the burden shifts to the

11

Commissioner to demonstrate that the claimant is not disabled and can engage in

12

work that exists in significant numbers in the national economy.” Hill v. Astrue,

13

698 F.3d 1153, 1161 (9th Cir. 2012); see also 20 C.F.R. §§ 404.1520(a)(4)(v),

14

416.920(a)(4)(v).

15

Commissioner’s “primary source of reliable job information” and creates a rebuttal

16

presumption as to a job classification. See Johnson v. Shalala, 60 F.3d 1428, 1434

17

n.6, 1435 (9th Cir. 1995); see also Tommasetti v. Astrue, 533 F.3d 1035, 1042 (9th

18

Cir. 2008). Where, as here, the testimony of a VE is used at step five, the VE must

19

identify a specific job or jobs in the national economy having requirements that the

20

claimant’s physical and mental abilities and vocational qualifications would satisfy.

21

See Osenbrock v. Apfel, 240 F.3d 1157, 1162-63 (9th Cir. 2001); Burkhart v.

22

Bowen, 856 F.2d 1335, 1340 n.3 (9th Cir. 1988); 20 C.F.R. §§ 404.1566(b),

23

416.966(b).

The Dictionary of Occupational Titles (“DOT”) is the

24

In the present case, the dispute focuses on the restriction in the RFC of

25

stretching or standing up to 10 percent of an 8 hour workday, i.e., up to 48 minutes

26

a day, referred to as a “sit/stand option.” Plaintiff does not challenge the accuracy

27

of the hypothetical presented to the VE, but contends that the sit/stand option in the

28

RFC conflicts with the DOT description for the jobs of check cashier and telephone
5

1

solicitor and that the ALJ erred by not eliciting a reasonable explanation from the

2

VE for the deviation under Social Security Ruling (SSR) 00-4p.

3

Commissioner, in response, argues that there is no conflict with the DOT because

4

the DOT is silent on this “sit/stand option” and that the ALJ satisfied SSR 00-4p by

5

verifying that the VE based her testimony on the DOT and would explain if there

6

were any deviation from the DOT. For the reasons set forth below, the Court finds

7

that the ALJ did not err in her reliance on the VE.

The

8

In response to initial questioning by the ALJ, the VE testified that she

9

understood she needed to advise the ALJ of any conflict ─ and to give the basis of

10

her opinion ─ if the VE gave an opinion that conflicted with information in the

11

DOT. (AR 60-61.) Using the assumption of the limited range of sedentary work as

12

stated in the RFC, the VE testified that a hypothetical individual could not do

13

Plaintiff’s past work.

14

hypothetical individual (with certain transferrable cashiering and sales skills from

15

Plaintiff’s prior work) could perform the jobs of a check cashier (DOT 211.462-

16

026) and a telephone solicitor (DOT 299.357-014). (AR 67-68.) The VE did not

17

advise the ALJ of any conflict between her opinion and the DOT and, therefore, did

18

not provide an explanation of a deviation from the DOT. Relying on the VE’s

19

testimony, the ALJ found that Plaintiff could perform a significant number of jobs

20

in the national economy and was not disabled. (AR 30.)

(AR 67.)

However, the VE also testified that the

21

Under Ninth Circuit law interpreting SSR 00-4p, an ALJ (i) must ask a VE if

22

the evidence he or she is providing is consistent with the DOT and (ii) must “obtain

23

a reasonable explanation for any apparent conflict.” See Massachi v. Astrue, 486

24

F.3d 1149, 1152-53 (9th Cir. 2007). In the present case, the ALJ substantially

25

complied with the first requirement by obtaining the VE’s agreement that if “if you

26

give me an opinion that conflicts with information in the DOT, you need to advise

27

me of the conflict . . . .” (AR 60-61.) By not advising the ALJ of a conflict, the

28

VE implicitly found there was none.
6

And Plaintiff agrees that the DOT

1

descriptions for check cashier (DOT 211.462-026) and telephone solicitor (DOT

2

299.357-014) do not expressly address the need for the sit/stand option. (See Pl.

3

Mem. at 9 (“Because the DOT does not address sit/stand options . . . .”)) Plaintiff

4

nevertheless contends that the ALJ was required to obtain a reasonable explanation

5

of an “apparent conflict” between the VE’s opinion and the DOT. Thus, the issue is

6

whether a conflict existed that required an explanation from the VE ─ despite the

7

DOT’s silence on the sit/stand option.

8

The recent Ninth Circuit decision in Gutierrez v. Colvin, __ F.3d __, 2016

9

WL 6958646 (9th Cir. Nov. 29, 2016), discussed the approach for determining

10

whether a conflict exists between VE testimony and the DOT: “For a difference

11

between an expert’s testimony and the [DOT’s] listings to be fairly characterized as

12

a conflict, it must be obvious or apparent. This means that the testimony must be at

13

odds with the [DOT’s] listing of job requirements that are essential, integral or

14

expected. . . . [W]here the job itself is a familiar one ─ like cashiering ─ less

15

scrutiny by the ALJ is required.” Id. at *2. In Gutierrez, the DOT description for a

16

cashier stated that the job required frequent reaching, but the RFC did not permit

17

lifting of the right arm above shoulder. In holding that there was no apparent or

18

obvious conflict, the Ninth Circuit looked at the type of duties listed in the DOT

19

description, applied common knowledge regarding the normal work of a cashier,

20

and concluded that the typical cashier did not need to reach overhead frequently:

21

“[A]n ALJ must ask follow up questions of a vocational expert when the expert’s

22

testimony is either obviously or apparently contrary to the [DOT], but the

23

obligation doesn’t extend to unlikely situation or circumstances. . . . Given how

24

uncommon it is for most cashiers to have to reach overhead, we conclude that there

25

was no apparent or obvious conflict between the expert’s testimony and the

26

[DOT].” Id. at *3.

27

Gutierrez, however, did not address whether the DOT’s silence on a sit/stand

28

option is in obvious or apparent conflict with a VE’s testimony that a person
7

1

requiring a sit/stand option can perform a particular job.

Indeed, there is no

2

controlling Ninth Circuit authority on this question, although a number of

3

unpublished decisions have addressed it. See Manley v. Colvin, 2016 WL 7191541

4

at *3-4 (C.D. Cal. Dec. 12, 2016) (discussing cases). For example, Dewey v.

5

Coleman, 650 Fed. Appx. 512 (9th Cir. 2016), recently held that there was no

6

conflict where the DOT was silent on whether the particular jobs in question

7

allowed for a sit/stand option and the testimony of the VE indicated that claimant

8

(who required a sit/stand option) could perform those jobs.

9

Here, the Court likewise concludes that there is not an apparent or obvious

10

conflict between the pertinent DOT descriptions and the requirement that Plaintiff

11

needs to stand or stretch at least ten percent of the day.

12

describes the duties of a check cashier as “Cashes checks, prepares money orders,

13

receives payment for utilities bills, and collects and records fees charged for check-

14

cashing service. May receive payment and issue receipts for such items as license

15

plates.”

16

requirements of this job would not require sitting all of the time and would not

17

prevent standing or stretching for a total of 48 minutes over an eight hour day.

18

Tasks such as receiving payments and collecting fees may well be done standing up

19

some of the time. Similarly, the duties of a telephone solicitor under DOT 299.357-

20

014 include calling prospective customers, recording names of customers solicited,

21

developing lists of prospects, typing reports, and contacting drivers ─ none of

22

which prohibits the 10% standing or stretching required by Plaintiff. Moreover,

23

according to the DOT, both the check cashier and telephone solicitor jobs are

24

sedentary work, involve sitting most of the time, and may include walking or

25

standing for brief periods occasionally (i.e. up to 1/3 of the time). The essential,

26

integral or expected requirements of these job duties do not prevent Plaintiff from

27

changing his sitting and standing as needed, and do not preclude Plaintiff from

28

standing or stretching the required 48 minutes over the course of the day. It would

DOT 211.462-026

In the language of Gutierrez, the “essential, integral or expected”

8

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 VE’s testimony and the DOT descriptions for check cashier

11

and telephone solicitor. Accordingly, the ALJ was not required to ask the VE to

12

provide an explanation of any deviation from the DOT, and there was no error in

13

the ALJ’s reliance on the VE’s testimony in making the step five determination of

14

other work 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 29, 2016

20

ALEXANDER F. MacKINNON
UNITED STATES MAGISTRATE JUDGE

21
22
23
24
25
26
27
28

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.

2

9