Hector Prieto v. Carolyn W. Covlin

Filing 27

MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF COMMISSIONER by Magistrate Judge Alexander F. MacKinnon. (ib)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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HECTOR PRIETO,

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Case No. ED CV 16-00221 AFM

Plaintiff,
v.

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CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

MEMORANDUM OPINION AND
ORDER AFFIRMING DECISION OF
COMMISSIONER

Defendant.

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I.

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BACKGROUND

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Plaintiff Hector Prieto protectively filed his applications for disability

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benefits under Title II of the Social Security Act and for supplemental security

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income under Title XVI of the Social Security Act on May 18, 2012. After denial

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on initial review and on reconsideration, a hearing took place before an

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Administrative Law Judge (ALJ) on November 4, 2013 but was continued to

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March 12, 2014 to allow Plaintiff time to provide additional medical evidence. In a

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decision dated April 2, 2014, the ALJ found that Plaintiff was not disabled within

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the meaning of the Social Security Act for the period from July 14, 2011 through

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the date of the decision. The Appeals Council declined to set aside the ALJ’s

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unfavorable decision in a notice dated December 4, 2015.

Plaintiff filed a

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Complaint herein on February 4, 2016, seeking review of the Commissioner’s

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denial of his applications for benefits.

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

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Appeal, Plaintiff filed a memorandum in support of the complaint on November 7,

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

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answer on December 13, 2016 (“Def. Mem.”). Plaintiff did not file a reply. This

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matter now is ready for decision. 1
II.

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DISPUTED ISSUE

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As reflected in the parties’ memoranda, the disputed issue is whether the ALJ

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

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Plaintiff could perform other work.

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III.

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STANDARD OF REVIEW

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

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determine whether the Commissioner’s findings are supported by substantial

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

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

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

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

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

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

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

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

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The decision in this case is being made based on the pleadings, the
administrative record (“AR”), and the parties’ memoranda in support of their
pleadings.
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conclusion. Lingenfelter, 504 F.3d at 1035. Where evidence is susceptible of more

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

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

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IV.

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FIVE-STEP EVALUATION PROCESS

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

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

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

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

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

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

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

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

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

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

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

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whether the impairment or combination of impairments meets or equals an

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

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

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

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

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Commissioner to determine whether the claimant has sufficient “residual functional

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

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

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

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

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

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disabled, because he can perform other substantial gainful work available in the
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national economy. Id. The determination of this issue comprises the fifth and final

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

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

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V.

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THE ALJ’S APPLICATION OF THE FIVE-STEP PROCESS

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

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gainful activity since July 14, 2011, the alleged onset date. (AR 12.) At step two,

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the ALJ found that Plaintiff had the following severe impairments: diabetes

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mellitus II, hepatitis C, mild degenerative joint disease of the bilateral knees,

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bilateral carpal tunnel syndrome, obesity, chronic pain syndrome, diabetic

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neuropathy, degenerative disc disease of the lumbar and thoracic spine, lumbar

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radiculopathy, hypothyroidism, complex regional pain syndrome of the right lower

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extremity, personality disorder and history of testicular cancer in remission. (Id.)

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At step three, the ALJ found that Plaintiff does not have an impairment or

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

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the listed impairments. (Id.) At step four, the ALJ found that Plaintiff had the

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residual functional capacity (RFC) to perform light work as defined in 20 C.F.R.

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§§ 404.1567(b), 416.967(c) except as follows:

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[Plaintiff] is limited to standing and/or walking for four hours out of an

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eight hour workday but for no more than 30 minutes at one time.

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Further, he will likely require the use of a single point cane or support

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from a rail or counter for standing or walking for more than 30

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minutes. He is able to sit for six hours out of an eight-hour workday

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but requires brief position changes at his workstation after

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approximately one hour. He is able to perform occasional bending,

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stooping, climbing steps, and balancing. However, he is restricted

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from crawling, squatting, crouching, and kneeling as well as working

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at unprotected heights, around moving machinery or other hazards. He
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is

precluded

from

jobs

requiring

hypervigilance

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concentration on a particular task in consideration of his pain, side

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effects of medications, and personality disorder. While he is capable

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of frequent use of his bilateral upper extremities, he is restricted from

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repetitive or constant fine or gross manipulation bilaterally with his

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upper extremities and cannot perform any forceful gripping. Further,

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he is precluded from repetitive or constant pushing/pulling with his

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lower extremities such as operating foot pedals.

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concentrated exposure to extreme temperatures and walking on uneven

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terrain. He is restricted from working at a job requiring fast-paced

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production or assembly line type work. Lastly, he is likely to be off

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task 5% of the workday or work week. (AR 14.)

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According to the VE, Plaintiff’s RFC prevented him from performing any of

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his past relevant work. (AR 19.) Finally, at step five, based on the VE’s testimony

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and Plaintiff’s age, education, work experience, the ALJ concluded that Plaintiff is

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capable of making a successful adjustment to light, unskilled work (such as bench

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assembler, swatch clerk, or counter clerk) that exist in significant numbers in the

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national economy that Plaintiff can perform. (AR 19-20.) Accordingly, the ALJ

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concluded that Plaintiff has not been disabled as defined in the Social Security Act

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since July 14, 2011. (AR 20.)

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intense

He is to avoid

VI.

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or

DISCUSSION

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

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

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

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

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416.920(a)(4)(v).

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

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

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

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

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

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

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

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

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

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416.966(b).

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

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(i) standing and/or walking for four hours out of an eight hour workday but for no

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more than 30 minutes at one time and sitting for six hours per workday, but with

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brief position changes after approximately one hour, referred to as a “sit/stand”

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option or restriction;2 and (ii) being off task 5% of the workday (i.e., 24 minutes per

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eight-hour workday). Plaintiff does not challenge the accuracy of the hypothetical

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presented to the VE, but contends that the sit/stand restriction and the 5% off-task

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limitation conflict with the DOT description for the jobs of bench assembler,

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swatch clerk, and counter clerk and that the ALJ erred by not eliciting a reasonable

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explanation from the VE for the deviation under Social Security Ruling (SSR) 00-

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4p. For the reasons set forth below, the Court finds that the ALJ did not err in

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reliance on the VE in the step five determination.

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In this case, it is not disputed that the ALJ’s questions to the VE included in

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their hypothetical all of the limitations that the ALJ found were part of plaintiff’s

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RFC. Based on this hypothetical, the VE testified that an individual could not do

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Plaintiff’s past relevant work. (AR 105.) However, the VE also testified that the

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hypothetical individual could perform the jobs of bench assembler (DOT 706.684-

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As summarized in Plaintiff’s memorandum, Plaintiff “needs the option to
alternate sitting and standing every 30 minutes and on the hour. . . .” (Pl. Mem. at
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022), swatch clerk (DOT 222.587-050, and counter clerk (DOT 249.366-010). (AR

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105-06.) The ALJ then followed up and asked about the impact of the sit/stand

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limitation. (AR 106.) The VE responded that the number of national jobs did not

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need to be reduced due to this limitation “[b]ecause these positions can be done in a

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seated position or in a standing position and there’s no issue with regards to either

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position.” (Id.) The ALJ also asked the VE about the limitation of being off task

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for up of 5% of the workday, and the VE testified that would not reduce the number

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of jobs existing in the national economy. (Id.) Relying on the VE’s testimony, the

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ALJ found that Plaintiff could perform a significant number of jobs in the national

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economy and was therefore not disabled. (AR 20.)

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

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

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

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F.3d 1149, 1152-53 (9th Cir. 2007). Plaintiff agrees that the DOT descriptions at

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issue do not expressly address the need for the sit/stand option. (See Pl. Mem. at 9

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(“Because the DOT does not address sit/stand options . . . .”).)

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descriptions also do not include off-task limitations or requirements.

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

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

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whether conflicts existed with the DOT that required an explanation from the VE ─

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despite the DOT’s silence on the sit/stand restriction and 5% off-task limitation.

The DOT
Plaintiff

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

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

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

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

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

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

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expected. . . . [W]here the job itself is a familiar one ─ like cashiering ─ less
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scrutiny by the ALJ is required.” Id. at *2. In Gutierrez, the DOT description for a

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

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

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

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

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

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

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

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

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

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

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[DOT].” Id. at *3.

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

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restriction or a 5% off-task limitation is in obvious or apparent conflict with a VE’s

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testimony that a person requiring those limitations can perform a particular job.

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Indeed, there is no controlling Ninth Circuit authority on the question concerning

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the sit/stand restriction, although a number of unpublished decisions have addressed

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it. See Manley v. Colvin, 2016 WL 7191541 at *3-4 (C.D. Cal. Dec. 12, 2016)

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(discussing cases). For example, Dewey v. Coleman, 650 Fed. Appx. 512 (9th Cir.

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2016), recently held that there was no conflict where the DOT was silent on

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whether the particular jobs in question allowed for a sit/stand option and the

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testimony of the VE indicated that claimant (who required a sit/stand option) could

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perform those jobs. In addition, various district court decisions have found no

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conflict between the DOT and VE testimony based on a hypothetical including an

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off-task limitation. See, e.g., Smith v. Colvin, 2016 WL 3456906 at *2 (C.D. Cal.

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June 22, 2016); Arellano v. Colvin, 2016 WL 3031770 at *5-6 (C.D. Cal. May 25,

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2016); Diesta v. Colvin, 2016 WL 6778216 at *8-11 (D. Hi. Nov. 15, 2016).

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

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between the pertinent DOT descriptions and the VE’s testimony. According to the

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DOT, the duties of counter clerk include receiving film for processing, loading film

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into processing equipment, collecting payments, answering customer questions,

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filing film, using a cash register, and selling photo supplies. See 1991 WL 672323.

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The swatch clerk duties include collecting cloth samples, marking sample lots,

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filing swatch cards and mailing swatches to customers. See 1991 WL 672126. The

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bench assembler duties include repetitive tasks on an assembly line for small

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products, positioning parts, fastening parts, and loading and unloading set up

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machines. See 1991 WL 679050. In the language of Gutierrez, the “essential,

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integral or expected” requirements of these jobs would not require standing or

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sitting all of the time, and would not prevent alternating sitting and standing every

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30 minutes and on the hour. Nor do the DOT job descriptions prevent being off

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task for 5% of the time (24 minutes) over the course of a workday. It would be a

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very unlikely or uncommon circumstance where performing the jobs of bench

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assembler, swatch clerk, or counter clerk would not permit the sit/stand option or

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the need to be off task for 5% of the workday.3 See Gutierrez, 2016 WL 6958646

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at *3.
In addition, the VE4 affirmatively stated that his testimony was “consistent

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with the Dictionary of Occupational Titles.”

(AR 106.)

The VE was also

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questioned about the sit/stand option and testified that the jobs of bench assembler,

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swatch clerk, and counter clerk “can be done in a seated position or in a standing

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position and there’s no issue with regards to either positioning.” (Id.) Similarly,

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The Court also notes that bench assembler and counter clerk are relatively
familiar jobs, thereby requiring less scrutiny by the ALJ. See Gutierrez, 2016 WL
6958646 at *2.
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Plaintiff does not challenge the credentials or expertise of the VE. (AR 104,
298-304.)
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the VE testified that a person who needed to be off task for 5% of the workday

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could perform these occupations. (Id.) Therefore, even if an obvious or apparent

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conflict could be found, the VE provided support for any deviation from the DOT.

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The ALJ was entitled to rely on this testimony of the VE. See Bayliss v. Barnhart,

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427 F. 3d 1211, 1218 (9th Cir. 2005); Smith, 2016 WL 3456906 at *2; SSR 00-4p

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(2000 WL 1898704 at *2).

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Finally, the Court finds persuasive the reasoning of Laufenberg v. Colvin,

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2016 WL 6989756 at *9 (C.D. Cal. Nov. 29, 2016), that to hold conflicts exist in

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circumstances such as these “would mean that VEs always create conflicts with the

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DOT whenever they mention any of the multitude of things about a job not

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expressly addressed in the DOT.” No controlling authority requires a finding of

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that type of conflict.

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In sum, the Court concludes that there was no error in the ALJ’s reliance on

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the VE’s testimony in making the step five determination of other work that

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Plaintiff could perform. There was not an obvious or apparent conflict between the

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VE’s testimony and the DOT descriptions for bench assembler, swatch clerk, and

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counter clerk.

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explanation of any deviation from the DOT, and in any event, the ALJ did obtain

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testimony from the VE that reasonably addressed this issue.

Thus, the ALJ was not required to ask the VE to provide an

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IT THEREFORE IS ORDERED that Judgment be entered affirming the
decision of the Commissioner and dismissing this action with prejudice.

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DATED: December 29, 2016

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____________________________________
ALEXANDER F. MacKINNON
UNITED STATES MAGISTRATE JUDGE

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