Fred Tillmon v. Carolyn W. Colvin

Filing 19

MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. (mz)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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FRED TILLMON,

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Case No. EDCV 16-1760 SS
Plaintiff,

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v.

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MEMORANDUM DECISION AND ORDER

NANCY A. BERRYHILL,1
Acting Commissioner of the
Social Security Administration,

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Defendant.

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I.

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INTRODUCTION

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Fred Tillmon (“Plaintiff”) brings this action seeking to
overturn the decision of the Commissioner of the Social Security
Administration

(the

“Commissioner”

or

“Agency”)

denying

his

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Nancy A. Berryhill is now the Acting Commissioner of Social
Security and is substituted for former Acting Commissioner Carolyn
W. Colvin in this case. See Fed. R. Civ. P. 25(d).
1

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application for Supplemental Security Income benefits (“SSI”).

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August 17, 2016, Plaintiff filed a Complaint commencing the instant

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action.

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the Administrative Record (“AR”).

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filed a memorandum in support of the Complaint (“P. Mem.”).

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March 20, 2017, Defendant filed a memorandum in support of the

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Answer (“D. Mem.”).

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§ 636(c), to the jurisdiction of the undersigned United States

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Magistrate Judge.

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On

On January 4, 2017, Defendant filed an Answer along with
On February 13, 2017, Plaintiff
On

The parties consented, pursuant to 28 U.S.C.

For the reasons stated below, the Court AFFIRMS

the Commissioner’s decision.

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II.

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PROCEDURAL HISTORY

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In 2010, Plaintiff filed a prior application for SSI.

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(AR

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12, 100).

The Agency denied Plaintiff’s application initially on

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July 21, 2010, and on reconsideration on October 26, 2010.

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100).

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Judge (“ALJ”), and, on July 26, 2011, ALJ Teresa Hoskins Hart held

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a

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Plaintiff proceeded without counsel before ALJ Hart.

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100).

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hearing, as did Michael Bliss, Plaintiff’s friend.

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On March 26, 2012, ALJ Hart found that Plaintiff was not disabled

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under the Social Security Act (the “Act”).

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sought review of ALJ Hart’s decision before the Appeals Council,

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which denied Plaintiff’s request.

(AR

Plaintiff requested a hearing before an Administrative Law

hearing

to

review

Plaintiff’s

application.

(AR

24-63).

(AR 24-35,

Vocational expert (“VE”) Troy Scott also testified at the

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2

(AR 24, 42).

(AR 100-07).

(AR 111).

Plaintiff

The decision became

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the final decision of the Commissioner, (AR 111), and Plaintiff

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did not challenge the decision further.

(See AR 93-94).

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Plaintiff filed the instant application for SSI on July 29,

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5

2013.

(AR 12, 126).

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December

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Plaintiff’s application initially on October 31, 2013, and on

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reconsideration

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Plaintiff requested a hearing before an ALJ.
2015,

31,

ALJ

Plaintiff alleged a disability onset date of

2009.

on

(AR

12,

January

Michael

114,

16,

Radensky

127).

2014.

conducted

The

(AR

Agency

141-45,

(AR 155).

On January

5,

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Plaintiff’s application.

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by Brandon Sanchez, testified before ALJ Radensky.

(AR 12, 64).

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VE Corinne J. Porter also testified at the hearing.

(AR 12, 64).

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On February 24, 2015, ALJ Radensky found that Plaintiff was not

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disabled under the Act.

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ALJ Radensky’s decision before the Appeals Council, which denied

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review on July 25, 2016. (AR 1-3, 6). The ALJ’s decision therefore

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became the final decision of the Commissioner.

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commenced the instant action on August 17, 2016.

(AR 12-19).

hearing

149-53).

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(AR 12, 64-96).

a

denied

to

review

Plaintiff, represented

Plaintiff sought review of

(AR 1).

Plaintiff

(Dkt. No. 1).

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III.

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FACTUAL BACKGROUND

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A. Background and ALJ Hearing Testimony

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26

Plaintiff was born on August 7, 1960.

(AR 244).

He was 54

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years old when he appeared before ALJ Radensky. (AR 70). Plaintiff

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did not complete high school and does not have a GED, but he is
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able to read and write “basic stuff.”

(AR 70-71).

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last worked “six [or] seven years” earlier, helping a neighbor

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maintain yards as a “cleaner.”

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applied for any work more recently.

(AR 67, 91).

Plaintiff had

Plaintiff had not

(AR 68-69).

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6

There

is

some

evidence

in

record

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commitment in 2012.

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substance abuse and mental health issues.

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addition,

it

(AR 360).

the

appears

that

of

a

psychiatric

The records indicate possible

Plaintiff

(AR 360-361).

reported

two

episodes

In
of

10

custody, one in 2004 and one in 2008, and that he received mental

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health treatment in custody.

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records, Plaintiff denied drug or alcohol use, but Plaintiff’s

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treating physician mentioned in her notes that “[Plaintiff] smelled

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of ETOH [alcohol].”

(AR 360, 408).

In later medical

(AR 386).

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Plaintiff claimed that he had been diagnosed with paranoia,

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schizophrenia, bipolar disorder, and “mental depression.” (AR 72).

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He claimed that he could not “see [him]self” around “too many”

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people because when his “mind goes bad” he believes that people

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are “out to get” him.

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medication for his impairments, although it made him nauseated and

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caused “shakes” over his whole body for ninety minutes at a time

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twice a week.

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medications made him tired and made it difficult to get out of bed.

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(AR 76).

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thoughts and hallucinations.

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that he was “fine” when he took his medication, provided he was

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“by [him]self.”

(AR 72).

(AR 74-75).

Plaintiff claimed that he took

Plaintiff also claimed that his

Plaintiff maintained that he also experienced suicidal
(AR 77, 79).

(AR 81).
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Plaintiff testified

At the time of the 2015 hearing, Plaintiff lived with his

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sister, niece, and great nephew.

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he cooks TV dinners and does laundry “every now and then.”

(AR

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83).

and

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socializes only with his friend “Mike.”

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the bus to appointments.

Plaintiff

claimed

that

(AR 82).

he

does

Plaintiff claimed that

not

shop

(AR 84).

or

drive

Plaintiff takes

(AR 84-85).

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Plaintiff’s attorney asked VE Porter whether an individual

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with Plaintiff’s “difficulties with maintaining social functions,

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pace and persistence and his inability to act appropriately with

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the public” could perform Plaintiff’s past relevant work.

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VE Porter testified that Plaintiff could return to his past work

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as

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factor.”

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would be required to “interact[] with the public in the sense of

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whoever’s house he’s cleaning.” (AR 94).

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she “got the impression [Plaintiff] was doing lawn work.”

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Plaintiff stated, however, that he never performed any work inside

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the house while he worked as a cleaner.

a

cleaner,

noting

(AR 94).

that

public

interaction

(AR 94).

“wouldn’t

be

a

Plaintiff’s attorney asked whether Plaintiff

VE Porter testified that
(AR 94).

(AR 95).

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During the prior 2011 hearing before ALJ Hart, VE Scott

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testified that an individual with Plaintiff’s vocational profile

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who was limited to the performance of “simple, repetitive tasks”

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with “limited social contact” would be able to perform Plaintiff’s

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past work as a cleaner.

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same individual could also return to Plaintiff’s past relevant work

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if the individual also could not come into contact with the general

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public.

(AR 58-60).

(AR 60).
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VE Scott confirmed that the

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B. Treating Psychiatrist Denise Persichino, D.O.

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In July 2013, Plaintiff visited Dr. Denise Persichino, D.O.,

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complaining of a “real short” temper and depression and that his

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medication made him “very tired.”

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observed that Plaintiff was “very talkative [and] energetic [and]

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hyperverbal” and continued his prescriptions.

(AR 384).

Dr. Persichino

(AR 384).

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In August 2013, Plaintiff visited Dr. Persichino, complaining

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of depression with “5-6 good days” per month, anger, panic attacks,

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and visual and auditory hallucinations.

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recommended

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prescriptions.

supportive

psychotherapy

(AR 382).
and

Dr. Persichino

continued

Plaintiff’s

(AR 382).

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On September 24, 2013, Dr. Persichino completed a Mental

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Disorder Questionnaire Form regarding Plaintiff’s impairments. (AR

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408-12).

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swings, depression, homicidal thoughts, suicidal thoughts, visual

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and auditory hallucinations, and anxiety.

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Persichino also stated that Plaintiff would sometimes “lose time”

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and spend up to half an hour in an “almost catatonic” state. (AR

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410).

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“racing thoughts” would affect his ability to concentrate and

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complete tasks in a “time efficient manner” and that he had

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“significant difficulty” with authority figures.

Dr. Persichino observed that Plaintiff suffered from mood

(AR 408, 410).

Dr.

Dr. Persichino stated that Plaintiff’s mood swings and

(AR 411).

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In December 2013, Plaintiff visited Dr. Persichino, reporting
anxiety, visual and auditory hallucinations, and depression.
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(AR

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433).

Dr. Persichino modified Plaintiff’s medication regimen and

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prescribed supportive therapy.

(AR 433).

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4

In January 2014, Plaintiff visited Dr. Persichino, reporting

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“improved” depression and that his hallucinations had been “good”;

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Dr. Persichino noted that Plaintiff was “more talkative [and]

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upbeat [and] happy” and continued his medication regimen.

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431).

(AR

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C. State Agency Medical Consultants

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On October 29, 2013, State Agency reviewing physician Dr. P.

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Ryan, M.D., reviewed Plaintiff’s medical records and provided a

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medical assessment.

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been “no material change” since ALJ Hart had found Plaintiff not

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disabled one year earlier.

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Plaintiff’s

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impairments were not supported by his treatment history, further

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noting that Plaintiff’s condition “appear[ed] to get better during

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periods of compliance w/ treatment.”

(AR 117-22).

allegations

Dr. Ryan stated that there had

(AR 118).

regarding

Dr. Ryan also stated that

the

severity

of

his

mental

(AR 120).

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On January 15, 2014, State Agency reviewing physician Dr.

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Joshua D. Schwartz, Ph.D., reviewed Plaintiff’s medical records

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and provided a medical assessment.

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opined that Plaintiff could carry out “simple one and two step

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tasks with adequate concentration, persistence and pace,” but also

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stated that Plaintiff should have “no contact w/ the general

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public.”

(AR 137).
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(AR 132-37).

Dr. Schwartz

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D. Work History Report

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In a September 2013 Work History Report, Plaintiff reported

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that he worked as a “laborer” in 2002 and in providing “assistance

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to [a] landscaper” in 2009.

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“laborer” included cleaning garden tools and removing them from a

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truck.

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[a] landscaper” involved “clean[ing] and stack[ing] tools” and

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using rakes, trimmers, and hedgers.

(AR 273).

(AR 272).

Plaintiff’s duties as a

Plaintiff’s duties in providing “assistance to

(AR 274).

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IV.

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THE FIVE STEP SEQUENTIAL EVALUATION PROCESS

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To

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qualify

for

disability

benefits,

a

claimant

must

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demonstrate a medically determinable physical or mental impairment

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that prevents him from engaging in substantial gainful activity2

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and that is expected to result in death or to last for a continuous

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period of at least twelve months.

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721

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impairment must render the claimant incapable of performing the

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work he previously performed and incapable of performing any other

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substantial gainful employment that exists in the national economy.

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Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42

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U.S.C. § 423(d)(2)(A)).

(9th

Cir.

1998)

(citing

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Reddick v. Chater, 157 F.3d 715,
U.S.C.

§ 423(d)(1)(A)).

The

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Substantial gainful activity means work that involves doing
significant and productive physical or mental duties and is done
for pay or profit. 20 C.F.R. §§ 404.1520, 416.910.
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1

To decide if a claimant is entitled to benefits, an ALJ

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conducts a five-step inquiry.

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20 C.F.R. §§ 404.1520, 416.920.

steps are:

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5

(1)

Is the claimant presently engaged in substantial

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gainful activity?

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not disabled.

If so, the claimant is found

If not, proceed to step two.

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(2) Is the claimant’s impairment severe?

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claimant is found not disabled.

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If not, the

step three.

If so, proceed to

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(3) Does the claimant’s impairment meet or equal one

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on the list of specific impairments described in

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20 C.F.R. Part 404, Subpart P, Appendix 1?

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the claimant is found disabled.

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to step four.

If so,

If not, proceed

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(4) Is the claimant capable of performing his past

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work?

If so, the claimant is found not disabled.

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If not, proceed to step five.

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(5) Is the claimant able to do any other work?

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the

claimant

is

found

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claimant is found not disabled.

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9

disabled.

If

If not,
so,

the

The

1

Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari,

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262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett); 20 C.F.R.

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§§ 404.1520(b)-404.1520(f)(1) & 416.920(b)-416.920(f)(1).

4
The claimant has the burden of proof at steps one through four

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6

and

the

7

Bustamante, 262 F.3d at 953-54.

8

meets his burden of establishing an inability to perform past work,

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the Commissioner must show that the claimant can perform some other

10

work that exists in “significant numbers” in the national economy,

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taking into account the claimant’s residual functional capacity

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(“RFC”), age, education, and work experience.

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at

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404.1520(f)(1), 416.920(f)(1).

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testimony of a vocational expert or by reference to the Medical-

16

Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P,

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Appendix 2 (commonly known as “the Grids”).

18

240 F.3d 1157, 1162 (9th Cir. 2001) (citing Tackett). When a

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claimant has both exertional (strength-related) and nonexertional

20

limitations, the Grids are inapplicable and the ALJ must take the

21

testimony of a vocational expert.

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869 (9th Cir. 2000).

1098,

Commissioner

1100;

has

the

Reddick,

burden

of

proof

at

step

five.

If, at step four, the claimant

157

F.3d

at

Tackett, 180 F.3d

721;

20

C.F.R.

§§

The Commissioner may do so by the

Osenbrock v. Apfel,

Moore v. Apfel, 216 F.3d 864,

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V.

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THE ALJ’S DECISION

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Preliminarily, ALJ Radensky observed that ALJ Hart previously
found Plaintiff not disabled.

(AR 12).
10

As a result, ALJ Radensky

1

ruled

that

there

2

nondisability” with respect to the unadjudicated period.

(AR 12).

3

ALJ

“changed

4

circumstances” and therefore adopted the findings of ALJ Hart’s

5

decision.

Radensky

was

found

a

“rebuttable

that

presumption

Plaintiff

had

not

of

continuing

shown

(AR 12).

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ALJ Radensky then applied the five-step process in Plaintiff’s

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case.

At step one, ALJ Radensky observed that Plaintiff had not

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engaged in substantial gainful activity since July 29, 2013, the

10

application date.

(AR 14).

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Plaintiff’s severe impairments included psychotic disorder, not

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otherwise

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physiological dependence.

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found that Plaintiff did not have an impairment or combination of

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impairments that meets or medically equals the severity of one of

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the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1

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(20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526).

specified,

and

At step two, ALJ Radensky found that

history

of

(AR 14).

polysubstance

abuse

with

At step three, ALJ Radensky

(AR 15).

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ALJ Radensky then found that Plaintiff possessed the RFC to

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perform a full range of work at all exertional levels, with the

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nonexertional limitations that Plaintiff could perform “simple,

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repetitive

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precluded from contact with the public.

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Plaintiff’s

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Persichino’s opinion and “great weight” to the opinions of State

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agency medical consultants.

tasks

RFC,

with

ALJ

limited

Radensky

social

assigned

(AR 18).

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28
11

interactions”
(AR 16).
“some

and

was

In evaluating

weight”

to

Dr.

1

At step four, ALJ Radensky determined that Plaintiff was

2

capable of performing his past relevant work as a cleaner as

3

actually and generally performed.

4

therefore determined that Plaintiff was not disabled within the

5

meaning of the Act.

(AR 18-19).

ALJ Radensky

(AR 19).

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VI.

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STANDARD OF REVIEW

9
10

Under 42 U.S.C. § 405(g), a district court may review the

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Commissioner’s decision to deny benefits.

The court may set aside

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the Commissioner’s decision when the ALJ’s findings are based on

13

legal error or are not supported by “substantial evidence” in the

14

record as a whole.

15

(9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); Smolen v.

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Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Fair v. Bowen,

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885 F.2d 597, 601 (9th Cir. 1989)).

Aukland v. Massanari, 257 F.3d 1033, 1035

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19

“Substantial evidence is more than a scintilla, but less than

20

a preponderance.”

21

Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)).

22

evidence which a reasonable person might accept as adequate to

23

support a conclusion.” Id. (citing Jamerson, 112 F.3d at 1066;

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Smolen,

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evidence supports a finding, the court must “‘consider the record

26

as a whole, weighing both evidence that supports and evidence that

27

detracts from the [Commissioner’s] conclusion.’” Aukland, 257 F.3d

28

at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir.

80

F.3d

Reddick, 157 F.3d at 720 (citing Jamerson v.

at

1279).

To

12

determine

It is “relevant

whether

substantial

1

1993)).

If the evidence can reasonably support either affirming

2

or reversing that conclusion, the court may not substitute its

3

judgment for that of the Commissioner.

4

21 (citing Flaten v. Sec’y, 44 F.3d 1453, 1457 (9th Cir. 1995)).

Reddick, 157 F.3d at 720-

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6

VII.

7

DISCUSSION

8
9

Plaintiff challenges ALJ Radensky’s decision on two grounds.

10

First, Plaintiff contends that ALJ Radensky failed to properly

11

consider Dr. Persichino’s opinion.

12

Plaintiff contends that ALJ Radensky erred at step four by finding

13

that he could perform his past relevant work as a cleaner.

14

Mem. at 6-9).

(P. Mem. at 3-6).

Second,

(P.

15
The Court disagrees.

16

ALJ Radensky afforded proper weight to

17

Dr. Persichino’s opinion and did not err by determining that

18

Plaintiff could return to his past relevant work.3

Accordingly,

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25
26
27
28

Defendant also argues that the Court should affirm the ALJ’s
decision because Plaintiff has failed to rebut the presumption of
continuing nondisability or to challenge the ALJ’s finding on this
issue. (D. Mem. at 2-4 (stating that presumption of continuing
nondisability should be applied and presenting other arguments “in
the alternative”)).
Plaintiff argues that his claims should be
considered “regardless of whether [Plaintiff] did not rebut the
presumption of continuing nondisability.” (P. Mem. at 2).
The
Court deems it appropriate to evaluate Plaintiff’s proposed grounds
for reversal, particularly as the Ninth Circuit has disapproved of
applying the presumption of continuing nondisability where, as
here, it appears that the claimant was unrepresented by counsel at
the time of his prior claim. See Lester v. Chater, 81 F.3d 821,
827-28 (9th Cir. 1995).
3

13

1

for

the

reasons

discussed

below,

2

the

Court

finds

that

ALJ

Radensky’s decision must be AFFIRMED.

3
4
5

A.

ALJ Radensky Provided Specific And Legitimate Reasons To
Assign Dr. Persichino’s Opinion “Some Weight”

6
7

Plaintiff contends that the ALJ failed to properly consider

8

Dr. Persichino’s opinion.

9

and finds that the ALJ provided specific and legitimate reasons

10

(P. Mem. at 3-6).

The Court disagrees

for assigning Dr. Persichino’s opinion “some weight.”

11
12

Social Security regulations require the ALJ to consider all

13

relevant medical evidence when determining whether a claimant is

14

disabled.

15

Where the Agency finds that the treating physician’s opinion about

16

the nature and severity of the claimant’s impairments is well-

17

supported by accepted medical techniques and is not inconsistent

18

with the other substantive evidence in the record, that opinion is

19

ordinarily controlling. 20 C.F.R. § 404.1527(c)(2); Orn v. Astrue,

20

495 F.3d 625, 631 (9th Cir. 2007).

20 C.F.R. §§ 404.1520(e), 404.1527(c), 416.927(c).

21
22

Nevertheless, the ALJ is also “responsible for determining

23

credibility, resolving conflicts in medical testimony, and for

24

resolving ambiguities.”

25

(9th Cir. 1995); see also Tommasetti v. Astrue, 533 F.3d 1035, 1041

26

(9th Cir. 2008) (“[T]he ALJ is the final arbiter with respect to

27

resolving ambiguities in the medical evidence.”).

28

that are supported by substantial evidence are conclusive.

Andrews v. Shalala, 53 F.3d 1035, 1039

14

Findings of fact
42

1

U.S.C. § 405(g); see also Key v. Heckler, 754 F.2d 1545, 1549 (9th

2

Cir. 1985) (“Where the evidence as a whole can support either

3

outcome, [the court] may not substitute [its] judgment for the

4

ALJ’s.”); Ryan v. Comm’r, 528 F.3d 1194, 1198 (9th Cir. 2008)

5

(“‘Where

6

interpretation,’ the ALJ’s decision should be upheld.”) (quoting

7

Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)).

8

not address every piece of evidence in the record, but only evidence

9

that is significant or probative.

10

evidence

is

susceptible

to

more

than

one

rational

An ALJ need

See Howard ex rel. Wolff v.

Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003).

11
12

Furthermore, “[t]he treating physician’s opinion is not . . .

13

necessarily conclusive as to either a physical condition or the

14

ultimate issue of disability.”

15

751 (9th Cir. 1989).

16

opinion depends on whether it is supported by sufficient medical

17

data and whether it is consistent with other evidence in the record.

18

See 20 C.F.R. § 404.1527.

19

physician’s opinion whether or not that opinion is contradicted.

20

Andrews, 53 F.3d at 1041 (citing Magallanes, 881 F.2d at 751).

21

reject the uncontroverted opinion of a claimant’s physician, the

22

ALJ

23

Andrews, 53 F.3d at 1041.

24

is contradicted by other doctors, the Commissioner may reject the

25

opinion by providing “specific and legitimate reasons” for doing

26

so that are supported by substantial evidence in the record.

27

Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001).

must

present

Magallanes v. Bowen, 881 F.2d 747,

The weight given a treating physician’s

clear

The ALJ may disregard the treating

and

convincing

reasons

for

doing

To

so.

Where the treating physician’s opinion

28
15

See

1

ALJ Radensky cited specific and legitimate reasons supported

2

by the record for giving “some weight” to Dr. Persichino’s opinion.

3

As ALJ Radensky noted, Plaintiff was able to complete various

4

household tasks and answer questions during the hearing without

5

difficulty.

6

of the State agency medical consultants, ALJ Radensky found that

7

the consultants’ opinions were

8

medical evidence” and similarly noted that Plaintiff was able to

9

cook, use public transportation, and handle money.

(AR 18).

In affording “great weight” to the opinions

“consistent with the objective

(AR 18).

10

Although Plaintiff is correct that he need not be “incapacitated”

11

to be disabled, (P. Mem. at 5), ALJ Radensky was permitted to

12

consider whether any restrictions assessed by Dr. Persichino were

13

inconsistent with Plaintiff’s demonstrated abilities. See Rollins,

14

261 F.3d at 856.

15

Dr. Persichino’s opinion was consistent with the record as a whole.

16

20 C.F.R. § 404.1527.

17

legitimate reasons for the weight he assigned to Dr. Persichino’s

18

opinions.

ALJ Radensky also properly considered whether

Accordingly, the ALJ provided specific and

19
20

Moreover, the Court observes that ALJ Radensky afforded Dr.

21

Persichino’s opinion “some weight,” not “no weight” or “little

22

weight.”

23

limitations would sometimes cause him to “lose time,” affect his

24

ability to concentrate and complete tasks in a “time efficient

25

manner,” and cause “significant difficulty” with authority figures.

26

(AR 410-11).

27

“simple repetitive tasks with limited social interactions” and no

28

“contact with the general public.”

Dr.

Persichino’s

opinion

stated

that

Plaintiff’s

ALJ Radensky’s RFC specifically limited Plaintiff to

16

(AR 16).

The RFC assessed by

1

ALJ

Radensky

therefore

2

limitations

3

Radensky

4

(stating, after evaluating Dr. Persichino’s opinion, that “the

5

limitations

6

[Plaintiff’s] allegations and limitations found in the record”)).

observed

assigning

appears

by

that

assessed

Dr.

account

Persichino,

opinion

herein

to

“some

properly

for

many

consistent

weight.”

take

into

of

the

with

ALJ

(See

AR

18

consideration

7
8

The Court therefore disagrees with Plaintiff’s contention that

9

ALJ Radensky improperly evaluated Dr. Persichino’s opinion and

10

finds that ALJ Radensky provided specific and legitimate reasons

11

for assigning it “some weight.”

12
13
14

B.

ALJ Radensky Did Not Err In Determining That Plaintiff Could
Return To His Past Relevant Work

15
16

Plaintiff contends that ALJ Radensky erred at step four by

17

finding that he could perform his past relevant work as a cleaner.

18

(P. Mem. at 6-9).

The Court disagrees.

19
20

Once the ALJ determines a claimant’s RFC, he then compares

21

these limitations with the job duties of the claimant’s previous

22

work.

23

perform “[t]he actual functional demands and job duties of a

24

particular past relevant job” or “[t]he functional demands and job

25

duties

26

throughout the national economy.”

27

840, 845 (9th Cir. 2001); Lewis v. Barnhart, 281 F.3d 1081, 1083

28

(9th Cir. 2002) (claimant must be able to perform past relevant

At step four, the question is whether the claimant can

of

the

occupation

as

generally

17

required

by

employers

Pinto v. Massanari, 249 F.3d

1

work either as actually performed or as generally performed in the

2

national economy).

3

job as “actually” performed, ALJs consider “a properly completed

4

vocational report” and the claimant’s testimony.

5

at 845; see also Social Security Ruling (“SSR”) 82–62, 1982 WL

6

31386, at *1, *3 (SSA 1982) (“The claimant is the primary source

7

for

8

regarding past work are generally sufficient for determining the

9

skill level[,] exertional demands and nonexertional demands of such

10

vocational

When classifying a claimant’s past relevant

documentation,

and

statements

Pinto, 249 F.3d

by

the

claimant

work.”).

11
12

The best source for information regarding how an occupation

13

is “generally performed” is usually the Dictionary of Occupational

14

Titles (“DOT”).

15

However, an ALJ may rely on expert testimony which contradicts the

16

DOT if the record contains persuasive evidence to support the

17

deviation.

18

1435 (1995)); see also SSR 82-61, 1982 WL 31387, at *2 (SSA 1982)

19

(ALJ may obtain testimony from VE where available documentation is

20

not “sufficient to determine how a particular job is usually

21

performed”). Here, ALJ Radensky found that Plaintiff could perform

22

his past relevant work as actually performed and as generally

23

performed in the regional and national economy.

24

based

25

regarding Plaintiff’s prior application for benefits.

his

Pinto, 249 F.3d at 845-46 (citations omitted).

Id. at 846 (citing Johnson v. Shalala, 60 F.3d 1428,

opinion

principally

on

the

(AR 19).

testimony

of

The ALJ
VE

Scott

(AR 19).

26
27

Plaintiff claims that, because some of the tasks listed in

28

the DOT definition of “cleaner” appear to involve contact with the
18

1

public

and

social

interactions,

Plaintiff

is

precluded

2

performing work as a cleaner.

3

Plaintiff claims that a cleaner must “keep premises of office

4

building, apartment house, or other commercial or institutional

5

buildings in clean and orderly condition and also set up table and

6

chairs in auditoriums or halls.

7

common areas and places open to the public clean where [Plaintiff]

8

may have to deal or come into contact with the public.

9

also noted having limited social interactions.

(P. Mem. at 7-8).

from

Specifically,

This would consist of keeping

The RFC

However, it does

10

not address with who, for example with supervisors or co-workers.

11

As this job would also require [Plaintiff] to deliver messages or

12

transport small equipment or tools between departments, which would

13

lead to social interactions between co-workers and supervisors and

14

possibly with the general public [sic].

15

mentioned, [Plaintiff] would not be able to perform his past

16

relevant work as a cleaner.”

Based on the above-

(Id. at 8).

17
18

Plaintiff is incorrect.

The mere fact that some of the tasks

19

in the DOT definition of “cleaner” may result in contact with the

20

public

21

incorrectly relied on VE testimony that Plaintiff could return to

22

his past relevant work.

23

in Gutierrez v. Colvin is instructive.

24

was unable to lift her right arm above her shoulder, and her RFC

25

included limitations to her ability to reach above shoulder level.

26

A VE opined that the claimant could work as a cashier and stated

27

that his opinion was consistent with the DOT’s description of

28

working as a cashier. The ALJ therefore concluded that the claimant

or

social

interactions

does

not

mean

that

the

ALJ

The Ninth Circuit’s analysis of the DOT

19

In Gutierrez, the claimant

1

could work as a cashier.

On appeal, the claimant argued that the

2

DOT definition of “cashier” required frequent “reaching,” and the

3

ALJ was required to ask specific questions of the VE regarding the

4

claimant’s ability to work as a cashier given her inability to

5

reach overhead.

6

Cir. 2016).

See Gutierrez v. Colvin 844 F.3d 804, 807 (9th

7
8

The Ninth Circuit affirmed the ALJ’s opinion, observing that

9

the DOT definition specified several duties required of only some

10

cashiers.

Id. at 808 (“The [DOT’s] definition of ‘cashier’ [is] a

11

windy, highly technical, 1000-word effort that specifies that a

12

cashier may need to ‘reach frequently,’ but also be able to read

13

‘adventure stories and comic books,’ write in ‘cursive,’ ‘interpret

14

bar

15

cars.’”). The Ninth Circuit ruled that the ALJ did not err “because

16

there was no apparent or obvious conflict between the [VE’s]

17

testimony that [the claimant] could perform as a cashier, despite

18

her weight bearing and overhead reaching limitations with her right

19

arm, and the [DOT’s] general statement that cashiering requires

20

frequent reaching.”

21

a difference between an expert’s testimony and the [DOT’s] listings

22

to be fairly characterized as a conflict, it must be obvious or

23

apparent,” i.e., “the testimony must be at odds with the [DOT’s]

24

listing

25

expected.”

graphs,’

of

and

job

follow

Id.

‘instructions

for

assembling

model

The Ninth Circuit also noted that, “[f]or

requirements

that

are

essential,

integral,

or

Id.

26
27
28

Gutierrez’s

treatment

of

the

DOT

is

relevant

here.

Plaintiff’s argument relies heavily on several elements of the DOT
20

1

definition of “cleaner” that may be required of only some cleaners.

2

See DOT 381.687-014 (cleaner keeps premises in clean and orderly

3

condition

4

surfaces, and trim; may cut and trim grass, shovel snow, deliver

5

messages, transport small equipment or tools, or set up tables and

6

chairs

7

interactions and contact with the public may be incidental to some

8

work as a “cleaner,” it is unclear that social interaction and

9

public contact could necessarily be characterized as “essential,

10

integral, or expected” in this occupation such that there is a

11

“conflict”

12

Plaintiff could work as a cleaner.

and

in

cleans

auditorium

between

the

and

or

polishes

hall).

DOT

lighting

fixtures,

Moreover,

definition

and

VE

although

marble

social

testimony

that

Gutierrez, 844 F.3d at 808.

13
14

Here, in the 2011 hearing before the ALJ, VE Scott confirmed

15

that that an individual with Plaintiff’s vocational profile who

16

was limited to the performance of “simple, repetitive tasks” with

17

“limited social contact” and no contact with the general public

18

would be able to perform Plaintiff’s past work as a cleaner.

19

58-60).

20

the DOT.

21

Corine Porter specifically considered whether Plaintiff’s work

22

would require contact with the public and determined that it would

23

not,

24

principally involved “doing lawn work.”

25

correct that Plaintiff has made no showing that his “speculative,

26

lay interpretation of the DOT” should overcome expert VE testimony.

27

(D. Mem. at 11-12 (citing Bayliss v. Barnhart, 427 F.3d 1211, 1218

28

(9th Cir. 2005))); see also SSR 00-4P, 2000 WL 1898704, at *2 (SSA

(AR

VE Scott reported that his testimony was consistent with
(AR 57).

particularly

In the second hearing, on January 5, 2015, VE

because

Plaintiff’s

21

work

as

(AR 94).

a

“cleaner”

Defendant is

1

2000) (ALJ is entitled to rely on VE’s experience in job placement

2

to account for a particular job’s requirements).

3
4

The Court therefore disagrees with Plaintiff’s contention that

5

ALJ Radensky erred at step four by finding that Plaintiff could

6

perform his past relevant work as a cleaner.4

7

\\

8

\\

9

\\

10

\\

11

\\

12

\\

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Moreover, as Defendant notes, a conflict between Plaintiff’s RFC
and the DOT definition of “cleaner” affects whether Plaintiff may
work as a cleaner as that occupation is “generally performed.” (D.
Mem. at 12); see also Pinto, 249 F.3d at 845-46. At step four, a
claimant is not disabled if he can perform either “[t]he actual
functional demands and job duties of a particular past relevant
job” or “[t]he functional demands and job duties of the occupation
as generally required by employers throughout the national
economy.” See id. at 845. ALJ Radensky found that Plaintiff could
work as a cleaner “as actually and generally performed.” (AR 19
(emphasis added)).
Plaintiff’s arguments regarding the DOT are
irrelevant to whether Plaintiff could work as a cleaner as he had
actually performed that work in the past. Therefore, it appears
that the error asserted by Plaintiff is inconsequential to the
ultimate non-disability determination and therefore harmless. See
Carmickle v. Comm’r, 533 F.3d 1155, 1162 (9th Cir. 2008).
4

22

1

VIII.

2

CONCLUSION

3
4

Consistent with the foregoing, IT IS ORDERED that Judgment be

5

entered AFFIRMING the decision of the Commissioner.

The Clerk of

6

the Court shall serve copies of this Order and the Judgment on

7

counsel for both parties.

8
9

DATED:

June 16, 2017
/S/
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE

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11
12
13

THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW, LEXIS OR
ANY OTHER LEGAL DATABASE.

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