Seaberry v. Commissioner of Social Security

Filing 22

ORDER signed by Magistrate Judge Edmund F. Brennan on 3/22/2018 ORDERING 15 Plaintiff's Motion for Summary Judgment is DENIED; the Commissioner's 20 Cross Motion for Summary Judgment is GRANTED; and the Clerk is directed to enter judgment in the Commissioner's favor and close the case. CASE CLOSED (Reader, L)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

BRIAN SEABERRY,

12

Plaintiff,

13
14
15

No. 2:16-cv-2310-EFB

v.

ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security
Defendant.

16
17

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security

18
19

(“Commissioner”) denying his application for Supplemental Security Income (“SSI”) under Title

20

XVI of the Social Security Act. The parties have filed cross-motions for summary judgment. For

21

the reasons discussed below, plaintiff’s motion is denied and the Commissioner’s motion is

22

granted.

23

I.

BACKGROUND

24

Plaintiff filed an application for SSI, alleging that she had been disabled since January 22,

25

2012.1 Administrative Record (“AR”) at 165-170. Plaintiff’s application was denied initially and

26

upon reconsideration. Id. at 87-91, 102-108. On June 17, 2014, a hearing was held before

27
28

1

Plaintiff subsequently amended his disability onset date to January 22, 2013. AR 9.
1

1

Administrative Law Judge (“ALJ”) Lawrence Duran. Id. at 24-60. Plaintiff was represented by a

2

non-attorney at the hearing, at which he and a vocational expert (“VE”) testified. Id. On May 14,

3

2015, the ALJ issued a decision finding that plaintiff was not disabled under section

4

1614(a)(3)(A) of the Act.2 Id. at 9-19. The ALJ made the following specific findings:

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

1. The claimant has not engaged in substantial gainful activity since January 22, 2013, the
application date (20 CFR 416.971 et seq.).
***
2. The claimant has the following severe impairments: hypertension, diabetes mellitus, and
diabetic neuropathy (20 CFR 416.920(c)).
***
2

Disability Insurance Benefits are paid to disabled persons who have contributed to the
Social Security program, 42 U.S.C. §§ 401 et seq. Supplemental Security Income (“SSI”) is paid
to disabled persons with low income. 42 U.S.C. §§ 1382 et seq. Under both provisions,
disability is defined, in part, as an “inability to engage in any substantial gainful activity” due to
“a medically determinable physical or mental impairment.” 42 U.S.C. §§ 423(d)(1)(a) &
1382c(a)(3)(A). A five-step sequential evaluation governs eligibility for benefits. See 20 C.F.R.
§§ 423(d)(1)(a), 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The
following summarizes the sequential evaluation:
Step one: Is the claimant engaging in substantial gainful
activity? If so, the claimant is found not disabled. If not, proceed
to step two.
Step two: Does the claimant have a “severe” impairment?
If so, proceed to step three. If not, then a finding of not disabled is
appropriate.
Step three: Does the claimant’s impairment or combination
of impairments meet or equal an impairment listed in 20 C.F.R., Pt.
404, Subpt. P, App.1? If so, the claimant is automatically
determined disabled. If not, proceed to step four.
Step four: Is the claimant capable of performing his past
work? If so, the claimant is not disabled. If not, proceed to step
five.
Step five: Does the claimant have the residual functional
capacity to perform any other work? If so, the claimant is not
disabled. If not, the claimant is disabled.

26

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

27

The claimant bears the burden of proof in the first four steps of the sequential evaluation
process. Yuckert, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential
evaluation process proceeds to step five. Id.
2

28

1

3. The claimant does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart
P, Appendix 1 (20 CFR 404.416.920(d), 416.925 and 416.926).

2
3

***

4
4. After careful consideration of the entire record, the undersigned finds that the claimant has
the residual functional capacity to perform light work as defined in 20 CFR 416.967(b)
except with the following limitations: he could lift and carry 20 pounds occasionally and
ten pounds frequently; stand, walk, and sit six hours of an eight-hour day with a sit-stand
option in 30 minute intervals at will; he needs to elevate his feet at will, when seated, 24
inches; use of a cane for walking; occasional climbing and stooping to knee level; never
kneeling, crouching, crawling, or climbing ladders, ropes, or scaffolds; and may be absent
or off task 5% of the time.

5
6
7
8
9

***

10

5. The claimant is unable to perform any past relevant work (20 CFR 416.965).

11

***

12

6. The claimant was born [in] 1964 and was 48 years old, which is defined as a younger
individual age 18-49, on the date the application was filed (20 CFR 416.963)

13
14

7. The claimant has at least a high school education and is able to communicate in English
(20 CFR 416.964).

15
16

8. Transferability of job skills is not material to the determination of disability because using
the Medical-Vocation Rules as a framework supports a finding that the claimant is “not
disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20
CFR Part 404, Subpart P, Appendix 2).).

17
18
19

9. Considering the claimant’s age, education, work experience, and residual functional
capacity, there are jobs that exist in significant numbers in the national economy that the
claimant can perform (20 CFR 416.969 and 416.969(a)).

20
21

***
22
23

10. The claimant has not been under a disability, as defined by the Social Security Act, since
January 22, 2013, the date the application was filed (20 CFR 416.920(g)).

24
25

Id. at 11-18.

26

/////

27

/////

28

/////
3

1

Plaintiff’s request for Appeals Council review was denied on July 29, 2016, leaving the

2

ALJ’s decision as the final decision of the Commissioner. Id. at 1-4.

3

II.

4

LEGAL STANDARDS
The Commissioner’s decision that a claimant is not disabled will be upheld if the findings

5

of fact are supported by substantial evidence in the record and the proper legal standards were

6

applied. Schneider v. Comm’r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000);

7

Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel,

8

180 F.3d 1094, 1097 (9th Cir. 1999).

9

The findings of the Commissioner as to any fact, if supported by substantial evidence, are

10

conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is

11

more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th

12

Cir. 1996). “‘It means such evidence as a reasonable mind might accept as adequate to support a

13

conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v.

14

N.L.R.B., 305 U.S. 197, 229 (1938)).

15

“The ALJ is responsible for determining credibility, resolving conflicts in medical

16

testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.

17

2001) (citations omitted). “Where the evidence is susceptible to more than one rational

18

interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.”

19

Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).

20

III.

21

ANALYSIS
Plaintiff argues that the ALJ erred at step-five of the sequential evaluation by relying on

22

the vocational expert’s testimony to find that he was not disabled. Specifically, plaintiff contends

23

that the ALJ failed to resolve conflicts between the vocational expert’s testimony and the

24

Dictionary of Occupational Titles (“DOT”) as well as the Occupational Outlook Handbook

25

(“OOH”).

26

A.

27

At the fifth step, the ALJ is required to “identify specific jobs existing in substantial

28

Relevant Legal Standards

numbers in the national economy that [the] claimant can perform despite her identified
4

1

limitations.” Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). The ALJ must first assess

2

the claimant’s residual functional capacity (“RFC”), which is the most the claimant can do despite

3

her physical and mental limitations. 20 C.F.R. § 416.945(a)(1). The ALJ then must consider

4

what potential jobs the claimant can perform given her RFC, age, education, and prior work

5

experience. 20 C.F.R. § 416.966; see Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). “In

6

making this determination, the ALJ relies on the [Dictionary of Occupational Titles], which is the

7

SSA’s primary source of reliable job information regarding jobs that exist in the national

8

economy.” Zavalin v. Colvin, 778 F.3d 842, 845-46 (9th Cir. 2015) (quotation marks omitted).

9

In additional to the DOT, an ALJ may rely on testimony from a vocational expert who

10

testifies about the jobs the claimant can perform in light of her limitations. 20 C.F.R.

11

§§ 404.1566(e), 416.966(e); Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir.

12

2009). Generally, occupational evidence provided by a vocational expert should be consistent

13

with the occupational information supplied by the DOT. Massachi v. Astrue, 486 F.3d 1149,

14

1153 (9th Cir. 2007) (citing SSR 00-4p, at *4). However, “an ALJ may rely on expert testimony

15

which contradicts the DOT, but only insofar as the record contains persuasive evidence to support

16

the deviation.” Johnson, 60 F.3d at 1435.

17

B.

18

At the administrative hearing, the ALJ posed multiple hypothetical questions to the

Background

19

vocational expert. In the second question, the ALJ asked if an individual approaching advanced

20

age, with plaintiff’s education, work experience, and residual functional capacity, except the

21

limitation that the individual may be absent or off task 5 percent of the time, could perform

22

plaintiff’s prior work as a gas line and meter inspector. AR 51. The vocational expert concluded

23

that the need for the individual to elevate his feet at 24 inches would preclude such work. Id. at

24

52. He explained that if an individual had to elevate his feet while sitting, it would make it

25

difficult for the individual to accomplish tasks. Id. at 52-53. The ALJ clarified that the individual

26

only needed to be able to elevate the legs at will, not the entire time he was sitting. Id. at 53-54.

27

Plaintiff also added that he typically elevates his feet about 4 hours a day. Id. at 54. The

28

vocational expert concluded that the hypothetical individual would still be precluded from
5

1

performing plaintiff’s past relevant work due to the need to elevate feet at will. Id. at 55. He

2

further noted that the requirement for a cane to walk would also be an impediment to walking on

3

uneven terrain, which is likely required for inspecting gas lines. 55.

4

The vocational expert testified, however, that there were other jobs that plaintiff could

5

perform, but that the number of available positions would be eroded by the need to elevate feet at

6

will for half the workday. Id. at 56. Specifically, he concluded that plaintiff could work as an

7

information clerk, general office clerk, and a survey worker, which are all light, unskilled

8

positions. Id. at 57-58. The ALJ followed up with a third hypothetical, which asked the

9

vocational expert to assume the same facts as the prior hypothetical, but add the limitation that the

10

person may be absent or off task 5 percent of the time. The vocational expert concluded that the

11

person could still perform all three jobs. Id. at 58. The vocational expert further stated that his

12

testimony was consistent with the DOT, but noted that several of the issues presented were not

13

addressed by the DOT. Specifically, he stated that the DOT does not address the requirement of

14

elevated feet or being absent or off task 5 percent of the time. Id. Based on the vocational

15

expert’s testimony, the ALJ concluded that plaintiff was not disabled because there were a

16

significant number of jobs in the national economy that plaintiff could perform. Id. at 17-18.

17

C.

18

Plaintiff first argues that the ALJ failed to resolve a conflict between the vocational

Analysis

19

expert’s testimony that plaintiff could perform the work as an information clerk, general office

20

clerk, and a survey worker, as defined by the DOT, and plaintiff’s RFC. ECF No. 15 at 8-11. He

21

contends that all jobs are jobs are characterized as light work under the DOT—requiring standing

22

and walking up to 6 hours a day—which conflict’s with the requirement that he elevate his legs

23

for 4 hours a day. Id.

24

The DOT classifies all three jobs as light exertional level. Information Clerk, DOT

25

237.367-018, 1991 WL 672187; Office Helper, DOT 239.567-010, 1991 WL 672232; Survey

26

Worker, DOT 205.367-054, 1991 WL 671725.3 The primary difference between light and

27
28

3

The DOT refers to two of the positions as “Officer Helper” and “Survey Worker,” while
the vocational expert referred to these jobs as “general office clerk” and “survey worker.” For
6

1

sedentary work is that the former generally requires a good deal of walking or standing. SSR 83-

2

10; 20 C.F.R. § 404.1567(b). However, jobs that required a great deal of sitting but with pushing

3

and pulling of arm-hand or leg-foot controls are also categorized as light work. Id. To perform

4

the full range of light work, the claimant must be able to stand or walk, off and on, for

5

approximately 6 hours during a typical 8 hour work day. SSR 83-10.

6

As a threshold matter, the ALJ did not specifically find that plaintiff needed to elevate his

7

legs four hours a day. Instead, the ALJ’s RFC determination found that plaintiff maintained the

8

ability to stand and walk for up to six hours in an eight-hour day, but would need a sit-stand

9

option and the ability to elevate his feet at will when sitting. AR 12. Thus, the premise of

10

plaintiff’s argument—that plaintiff must elevate his legs for four hours a day—is absent from the

11

plaintiff’s RFC.4 But even assuming plaintiff has such a limitation, the vocational expert

12

considered the impact that a need to elevate his legs for prolonged periods would have on his

13

ability to work to work as an information clerk, general office clerk, and a survey worker.

14

Specifically, the ALJ concluded that the requirement that plaintiff elevate his legs 4 hours a day

15

would eliminate 50 percent of the available positions for all three jobs. Thus, even if plaintiff’s

16

RFC had conflicted with the DOT’s definition of these jobs as light work, the vocational expert

17

addressed and resolved the conflict.

18

Plaintiff also contends that the vocational expert failed to account for the need to use a

19

cane for walking. ECF No. 15 at 8, 11. Plaintiff is mistaken. The vocational expert specifically

20

testified that “if the cane is constantly used that doesn’t eliminate all light jobs but it eliminates a

21

good deal of jobs, any jobs that might require any carrying of bulky items and so forth.” AR 54.

22

He further testified use of cane would impede the ability to walk on uneven terrain. Id. at 55.

23

None of the jobs identified by the ALJ require carrying bulky items or walking on uneven terrain.

24

See Information Clerk, DOT 237.367-018, 1991 WL 672187 (requiring worker to provide travel

25

information and furnish patrons with timetables and travel literature); Office Helper, DOT

26

239.567-010, 1991 WL 672232 (furnishes workers with clerical supplies, sorts and delivers mail,

27
28

ease of reference, the court uses the job names provided by the vocational expert.
4
Plaintiff does not challenge the ALJ’s RFC determination.
7

1

distributes paperwork, and packages); Survey Worker, DOT 205.367-054, 1991 WL 671725

2

(contacts and interviews people at home, place of business, on street, or by telephone to compile

3

statistical information). Accordingly, there is no conflict with plaintiff’s need to use a cane for

4

walking and the vocational expert’s testimony that plaintiff could perform these positions.

5

Lastly, plaintiff argues that the ALJ erred in relying on testimony that conflicted with the

6

Occupational Outlook Handbook (“OOH”) and O*NET. He contends that under OOH, including

7

its cross-references to O-NET, the job descriptions for the three positions reflect that the positions

8

are more accurately categorized as sedentary, as opposed to light, work. ECF No. 15 at 12-13.

9

He further notes that the vocational expert testified that an individual that would need to have his

10
11

legs raised for 4 hours a day would have difficulty performing sedentary work. Id. at 13.
The U.S. Court of Appeals for the Ninth Circuit has recently declined to treat the DOT

12

and the OOH the same. In Shaibi v. Berryhill, 870 F.3d 874 (9th Cir. 2017), the plaintiff argued

13

that the ALJ improperly relied on the vocational expert’s estimate of available jobs in finding that

14

there were a significant number of jobs the plaintiff could perform. Id. at 880, as amended, No.

15

15–16849, slip op. at 16–17 (9th Cir. Feb. 28, 2018). The court held that the plaintiff had waived

16

the argument because he was represented by counsel during the administrative proceedings, but

17

failed to raise the issue before the agency. Id. The Ninth Circuit explained:

18
19
20
21
22
23
24

[W]e can find no case, regulation, or statute suggesting that an ALJ
must sua sponte take administrative notice of economic data in the
[County Business Patterns] or the OOH. It is true that an ALJ is
required to investigate and resolve any apparent conflict between
the VE's testimony and the DOT, regardless of whether a claimant
raises the conflict before the agency. But Shaibi cites to no
authority suggesting that the same is true for the CBP and OOH.
Our precedent holds, instead, that an ALJ may rely on a vocational
expert's testimony concerning the number of relevant jobs in the
national economy, and need not inquire sua sponte into the
foundation for the expert's opinion.
Id. at 881 (citations omitted).

25

Thus, the Ninth Circuit has already ruled that the OOH and the DOT do not stand on the

26

same footing. See Paris v. Berryhill, 2017 WL 4181093, at *4 (E.D. Cal. Sept. 20, 2017) (citing

27

to Shaibi to find that “the Ninth Circuit has rejected plaintiff’s contention that the ‘OOH stands

28

on the same footing as the DOT.’ ”). Moreover, courts in this circuit have consistently found that
8

1

an ALJ is under no obligation to resolve a conflict between the vocational expert’s testimony and

2

the OOH. See Meza v. Berryhill, 2017 WL 3298461, at *8 (C.D. Cal. Aug. 2, 2017) (“The ALJ

3

was not required to resolve any conflicts between the OOH or O*NET.”); Palomino v. Colvin,

4

2015 WL 2409881, at *6 (C.D. Cal. May 20, 2015) (“[P]laintiff has cited to no authority for the

5

proposition that an ALJ is bound by the OOH.”); Gandara v. Berryhill, 2017 WL 4181091, at *5

6

(E.D. Cal. Sept. 20, 2017) (“[P]laintiff fails to provide authority for the proposition that an ALJ

7

must sua sponte identify and take administrative notice of the educational requirements in the

8

OOH, compare them with the VE’s hearing testimony, and determine any inconsistencies.”);

9

Willis v. Astrue, 2009 WL 1120027 at *3 (W.D. Wash. Apr. 24, 2009) (“First, plaintiff provides

10

no basis for relying on a perceived conflict between the O-NET and the VE testimony . . . . SSR

11

00-4p and cases decided subsequent to that ruling specifically require the resolution of conflicts

12

between the DOT and a VE’s testimony . . . . Plaintiff fails to provide any support for a

13

contention that the creation of the O-NET altered this requirement.”); Walker v. Berryhill, 2017

14

WL 1097171, at *4 (C.D. Cal. Mar. 23, 2017) (noting that the “Ninth Circuit has long recognized

15

the primacy of the DOT,” and holding that the ALJ was not required to resolve any conflict

16

between the VE’s testimony and the OOH).

17

The ALJ was not obligated to resolve any conflict between the OOH or O*NET.

18

Accordingly, the ALJ properly relied on the vocational expert’s testimony to find that plaintiff

19

could work as an information clerk, a general office clerk, and a survey worker.

20

IV.

CONCLUSION

21

Accordingly, it is hereby ORDERED that:

22

1. Plaintiff’s motion for summary judgment is denied;

23

2. The Commissioner’s cross-motion for summary judgment is granted; and

24

3. The Clerk is directed to enter judgment in the Commissioner’s favor and close the

25

case.

26

DATED: March 22, 2018.

27
28
9