Montero v. Berryhill
Filing
28
ORDER AFFIRMING THE DECISION OF THE SOCIAL SECURITY ADMINISTRATION COMMISSIONER. Related: 1 (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
PATRICK H. MONTERO,
Plaintiff,
vs.
CAROLYN W. COLVIN, Social
Security Administration
Commissioner,
Defendant.
______________________________
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CIVIL NO. 15-00196 HG-KSC
ORDER AFFIRMING THE DECISION OF THE SOCIAL SECURITY
ADMINISTRATION COMMISSIONER
This case involves the appeal of the Social Security
Administration Commissioner’s denial of Supplemental Security
Income benefits to Plaintiff Patrick H. Montero.
Plaintiff filed an application for Supplemental Security
Income on the grounds that injuries to his arms and wrists
have prevented him from doing any work since November 1, 2010.
The Social Security Administration denied his application.
Following an administrative hearing, the Administrative Law
Judge (“ALJ”) held that Plaintiff was not disabled at any time
through the date of the ALJ’s decision of November 12, 2013.
The Appeals Council denied Plaintiff's request for review and
1
Plaintiff appealed to this Court.
The Court AFFIRMS the decision of the Social Security
Administration Commissioner.
PROCEDURAL HISTORY
On June 30, 2011, Plaintiff Patrick H. Montero filed an
application for Supplemental Security Income with the Social
Security Administration.
(Administrative Record (“AR”) at
110-16, 126, ECF No. 15).
On September 15, 2011, the Social Security Administration
denied Plaintiff’s application.
(AR at pp. 53-61, 75).
On November 7, 2011, Plaintiff moved for Reconsideration
of the denial of his Supplemental Security Income Application.
(AR at p. 79).
On November 2, 2012, Reconsideration was denied.
(AR at
pp. 63-73, 82-84).
On November 27, 2012, Plaintiff requested a hearing
before an Administrative Law Judge (“ALJ”).
(AR at p. 85).
On October 24, 2013, an ALJ conducted a hearing on
Plaintiff’s Application.
(AR at pp. 23-52).
On November 12, 2013, the ALJ issued a decision denying
Plaintiff’s request for Supplemental Security Income.
pp. 6-16).
2
(AR at
On December 15, 2013, Plaintiff filed a request for
review of the ALJ’s decision before the Appeals Council for
the Social Security Administration.
(AR at p. 4).
On March 27, 2015, the Appeals Council for the Social
Security Administration denied further review of Plaintiff’s
application and rendered a final administrative decision by
the Commissioner of Social Security.
(AR at pp. 1-3).
On May 26, 2015, Plaintiff sought judicial review of the
Commissioner of Social Security’s final decision to deny
Plaintiff’s application for Supplemental Security Income in
this Court pursuant to 42 U.S.C. § 405(g).
(Complaint for
Review of Supplemental Security Income Determination, ECF No.
1).
On September 8, 2015, the Magistrate Judge issued a
briefing schedule.
(ECF No. 20).
On October 5, 2015, Plaintiff filed PLAINTIFF’S OPENING
BRIEF.
(ECF No. 21).
On November 9, 2015, Defendant filed DEFENDANT’S
ANSWERING BRIEF.
(ECF No. 22).
On November 16, 2015, Plaintiff filed a Motion for an
extension of 7 days to file the Reply Brief, which was
granted.
(ECF Nos. 23, 24).
On November 30, 2015, Plaintiff filed PLAINTIFF’S REPLY
3
BRIEF.
(ECF No. 25).
On February 3, 2016, the Court held a hearing on
Plaintiff’s appeal of the decision of the Social Security
Administration Commissioner.
BACKGROUND
Plaintiff was born on October 2, 1961 and is a high
school graduate.
No. 15).
Hawaii.
(Administrative Record (“AR”) at p. 27, ECF
Plaintiff resides with his parents on the Island of
(Id. at pp. 27-29, 36-37).
Plaintiff filed an
application for Supplemental Security Income as a result of
injuries to his wrists and arms.
(Id. at p. 9).
The claim
was initially denied on September 15, 2011, and again upon
reconsideration on November 2, 2012.
(Id.)
Plaintiff
requested a hearing on his application and on October 24,
2013, Plaintiff testified before an Administrative Law Judge.
(Id.)
Plaintiff testified that in the 1990's he was in a car
accident that caused his wrists to be slammed into the
dashboard, resulting in injuries.
(Id. at pp. 32-33).
Plaintiff also described a history of rotator cuff surgeries
unrelated to his car accident.
(Id. at pp. 43-44).
Plaintiff testified that the injuries and pain symptoms
have increased over time.
(Id. at pp. 32-33).
4
Plaintiff had
surgery on his left wrist on October 6, 2010.
(Id. at p. 12).
Plaintiff stated that as of November 1, 2010, he was no longer
able to engage in his previous work as a tree trimmer and a
construction laborer.
(Id. at pp. 27-28, 33).
Plaintiff’s medical records reflected pain and weakness
in both writs, carpal tunnel syndrome and decreased range of
motion in both wrists, and swelling and mild separation of
bones in the left wrist.
(Id. at pp. 12-13, 338-39).
Plaintiff testified that he could still perform tasks
with his right-dominant hand and was able to engage in most
daily activities and tasks around the house.
36).
(Id. at pp. 34-
Plaintiff testified that he had more pain and
limitations in using his left hand.
(AR at pp. 39-40).
The Administration Law Judge denied Plaintiff’s
application for benefits, finding that although he could not
perform his previous work, there was work that existed in
significant numbers that Plaintiff could perform.
15-16).
(Id. at pp.
The Administration Law Judge relied on the testimony
of a vocational expert to find that someone with Plaintiff’s
limitations could perform work as a Flagger, Usher, Sandwich
Board Carrier, or Boat Rental Clerk.
(Id.)
Plaintiff sought review of the Administrative Law
Judge’s decision with the Appeals Council, which denied
5
Plaintiff's request for review and rendered a final
administrative decision by the Commissioner of Social
Security.
(Id. at pp. 1-3).
STANDARD OF REVIEW
A claimant is disabled under the Social Security Act if
he or she is unable to “engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which ... has lasted or can be expected to
last for a continuous period of not less than 12 months.”
42
U.S.C. § 423(d)(1)(A); see 42 U.S.C. § 1382c(a)(3)(A); Burch
v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
A decision by the Commissioner of Social Security must be
affirmed by the District Court if it is based on proper legal
standards and the findings are supported by substantial
evidence on the record as a whole.
See 42 U.S.C. § 405(g);
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971);
see also Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir.
1993).
ANALYSIS
6
I.
Applicable Law
The Social Security Administration has implemented
regulations establishing when a person is disabled so as to be
entitled to benefits under the Social Security Act, 42 U.S.C.
§§ 423, 1382c.
The regulations establish a five-step
sequential evaluation process to determine if a claimant is
disabled.
The Commissioner of the Social Security
Administration reviews a disability claim for Supplemental
Security Income by evaluating the following:
(1)
Is the claimant presently engaged in substantial
gainful activity? If so, the claimant is not
disabled. If not, proceed to step two.
(2)
Is the claimant’s alleged impairment
sufficiently severe to limit his ability to
work? If not, the claimant is not disabled.
so, proceed to step three.
If
(3)
Does the claimant’s impairment, or combination
of impairments, meet or equal an impairment
listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1? If so, the claimant is disabled.
If not, proceed to step four.
(4)
Does the claimant possess the residual
functional capacity to perform his past relevant
work? If so, the claimant is not disabled. If
not, proceed to step five.
(5)
Does the claimant’s residual functional
capacity, when considered with the claimant’s
age, education, and work experience, allow him
to adjust to other work that exists in
significant numbers in the national economy? If
so, the claimant is not disabled. If not, the
7
claimant is disabled.
Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1052
(9th Cir. 2006) (citing 20 C.F.R. §§ 404.1520; 416.920).
The claimant has the burden of proof at steps one through
four, and the Commissioner has the burden of proof at step
five.
Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir.
2001).
II.
The Administrative Law Judge Reviewed Plaintiff’s
Application By Using the Five-Step Sequential Evaluation
At the Plaintiff’s October 24, 2013 administrative
hearing, the Administrative Law Judge (“ALJ”) for the Social
Security Administration reviewed Plaintiff’s claim by engaging
in the five-step sequential evaluation.
First, the ALJ determined that Plaintiff was not engaged
in substantial gainful activity since the date of his
Application for Supplemental Security Income. (Administrative
Record (“AR”) at p. 11, ECF No. 15).
Second, the ALJ found that Plaintiff had an impairment
that limited his ability to work based on the injuries to his
wrists following a car accident in the 1990's.
32-33, ECF No. 15).
(AR at pp. 12,
Plaintiff also reported a history of
rotator cuff repair surgery, and a recent surgery in October
6, 2010 performed on his left wrist.
8
(AR at pp. 12, 32-34,
43-44, ECF No. 15).
Plaintiff testified that he is right-hand dominant, and
that he has pain in both his right and left hand, but his left
hand is worse.
(AR at pp. 12, 35, ECF No. 15).
Plaintiff
testified that he cannot grip with his left hand, and that his
wrist pain is aggravated by doing basic tasks like getting
dressed, bathing, driving, washing dishes, or holding any
object for any length of time.
(AR at pp. 12, 35-43, ECF No.
15).
The ALJ reviewed the medical evidence and testimony and
determined Plaintiff had the following severe impairments:
scapho-lunate advanced collapse type wrist, status
post radial styloidectomy and injury to the
superficial branch of the radial nerve in the left
upper extremity; and, degenerative changes at the
right first metacarpal phalangeal joint and
persistence of several small ossicles adjacent to
the right ulnar styloid process in the right upper
extremity.
(AR at p. 11, ECF No. 15).
Third, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments
in 20 C.F.R. Part 404, Subpart P, Appendix 1.
20 C.F.R. §
416.920(d), 416.925 and 416.926.
Fourth, the ALJ evaluated the medical evidence,
Plaintiff’s testimony, and other evidence in the record to
9
determine Plaintiff’s residual functional capacity.
The ALJ relied primarily on the medical report submitted
by the examining physician, Dr. Antoine Cazin, dated October
31, 2012.
The medical report stated that Plaintiff was
limited in his ability to use his upper limbs, with use of his
left extremities worse than his right.
ECF No. 15).
(AR at pp. 13, 338-39,
Dr. Cazin reported that Plaintiff was able to
lift a fifteen pound weight with his right hand without
difficulty but had difficulty lifting a ten pound weight with
his left hand due to his poor left hand grip.
339, ECF No. 15).
(AR at pp. 13,
Dr. Cazin also stated that Plaintiff had
some difficulty with fine manipulation.
(AR at p. 339, ECF
No. 15).
The ALJ determined that Plaintiff has the residual
functional capacity to perform light work as defined in 20
C.F.R. § 416.967(b), with the following limitations:
[Plaintiff] can lift up to 10 pounds frequently and
up to 15 pounds occasionally with the dominant right
upper extremity, but he cannot lift more than up to
5 pounds occasionally with non-dominant left upper
extremity; he cannot engage in forceful grasping and
torqueing, with either upper extremity; and he is
restricted to occasional handling and fingering and
no forceful pinching, with his non-dominant left
upper extremity.
(AR at pp. 11-15, 45-46, ECF No. 15).
Fifth, the ALJ found that there are jobs that exist in
10
significant numbers in the national economy that Plaintiff can
perform given his age, education, work experience, and
residual functional capacity.
(AR at pp. 15-16, ECF No. 15).
The ALJ examined a vocational expert in determining that there
are jobs that exist in significant numbers that Plaintiff can
perform.
(AR at pp. 45-48, ECF No. 15).
The ALJ determined
that Plaintiff was not disabled and denied his application
based on the fifth step in the Social Security
Administration’s sequential step evaluation process.
(AR at
p. 16, ECF No. 15).
In this case, Plaintiff's appeal concerns the ALJ’s
decision regarding step five in the evaluation process.
The
Plaintiff challenges the ALJ’s determination that there is
available work for Plaintiff that exists in significant
numbers in the national economy.
III.
The ALJ Properly Concluded that Plaintiff Can
Perform Work that Exists in Significant Numbers in
the National Economy
The Commissioner for Social Security Administration must
show that a claimant can perform some work that exists in
“significant numbers” in the national economy, taking into
account the claimant’s residual functional capacity, age,
education, and work experience.
Tackett v. Apfel, 180 F.3d
11
1094, 1100 (9th Cir. 1999).
The Commissioner may satisfy this
burden with testimony of a vocational expert.
Osenbrock v.
Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001).
The vocational expert’s testimony may constitute
substantial evidence of a claimant’s ability to perform work
which exists in significant numbers in the national economy
when the ALJ poses hypothetical questions that accurately
describe all of the limitations and restrictions of the
claimant that are supported by the record.
Tackett, 180 F.3d
at 1101; Magallanes v. Bowen, 881 F.2d 747, 756-57 (9th Cir.
1989).
ALJ’s routinely rely on the Dictionary of Occupational
Titles issued by the United States Department of Labor “in
determining the skill level of a claimant’s past work, and in
evaluating whether the claimant is able to perform other work
in the national economy.”
1276 (9th Cir. 1990).
Terry v. Sullivan, 903 F.2d 1273,
The Dictionary of Occupational Titles
is the presumptive authority on job classifications.
Johnson
v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995).
The ALJ found that Plaintiff had the residual functional
capacity to perform “light work” with restrictions limiting
lifting of certain weights, and limiting the use of his hands.
Specifically, the ALJ found that Plaintiff “can lift up to 10
12
pounds frequently and up to 15 pounds occasionally with the
dominant right upper extremity, but he cannot lift more than
up to 5 pounds occasionally with non-dominant left upper
extremity; he cannot engage in forceful grasping and
torqueing, with either upper extremity; and he is restricted
to occasional handling and fingering and no forceful pinching,
with his non-dominant left upper extremity.”
(AR at p. 11,
ECF No. 15).
Plaintiff's past relevant work included work as a tree
trimmer and a construction laborer.
15).
(AR at pp. 28-29, ECF No.
The ALJ found that Plaintiff’s residual functional
capacity would prevent him from engaging in his past work.
(AR at p. 46, ECF No. 15).
The ALJ posed a hypothetical to the vocational expert
regarding the type of other work a person with Plaintiff's
residual functional capacity could perform.
The ALJ posed the
following hypothetical to the vocational expert:
I want you to consider a hypothetical situation that
we would have a person who would be closely
approaching advanced age, have a high school
education, no particular limitation sitting, standing
or walking. With the dominant upper extremity, the
individual would be able to lift fifteen pounds
occasionally, ten pounds frequently. With the nondominant upper extremity only occasionally up to five
pounds. With either hand, no forceful grasping,
twerking. With the non-dominant upper extremity,
occasional handling, and fingering, and in addition to
the no forceful grasping or twerking, there’d be – I’d
13
also add no forceful pinching.
(AR at pp. 45-46, ECF No. 15).
The vocational expert testified that a person with such a
residual functional capacity could perform work in the
following four positions:
(1)
Flagger, Dictionary of Occupational Titles Code
372.667-022, with around 100 jobs in the local
economy and at least 20,000 in the national economy;
(2)
Usher, Dictionary of Occupational Titles Code
344.667-014,1 with an excess of 100 jobs in the local
economy and at least 34,000 in the national economy;
(3)
Sandwich Board Barrier, Dictionary of Occupational
Titles Code 299.687-014, with around 100 jobs in the
local economy and at least 5,000-10,000 in the
national economy; and
(4)
Boat Rental Clerk, Dictionary of Occupational Titles
Code 295.467-014, with around 100 jobs in the local
economy and about 10,000 in the national economy.
(AR pp. 46-48, ECF No. 15).
The evidence shows that the ALJ considered the particular
facts of Plaintiff's case and posed a complete hypothetical
question to the vocational expert.
The ALJ incorporated the
weight and hand-usage limitations set out in the medical
report of the examining physician, Dr. Cazin, in formulating
the hypothetical question to the vocational expert.
1
(AR at
The Parties agree that the correct Dictionary of
Occupational Titles Code for Usher is 344.667-014. (Pla.’s
Opening Brief at p. 12, n.2, ECF No. 21; Def.’s Answering
Brief at p. 4, n.3, ECF No. 22).
14
pp. 35-42, 45-46, 338-39, ECF No. 15).
The hypothetical also incorporated Plaintiff’s testimony.
Plaintiff testified that he was able to do everyday tasks like
button his shirt, brush his teeth, shave with a straight
razor, and engage in leisure activities.
ECF No. 15).
(AR at pp. 35-43,
Plaintiff testified that he was able to go
fishing, to use a bow and arrow, and to paint his parents’
house using both a roller and a brush.
(Id.)
The
hypothetical posed by the ALJ incorporated the limitations
identified by the Plaintiff and the examining medical
physician.
The hypothetical limited the use of grasping and
pinching, as Plaintiff testified that he had difficulty
buttoning his pants and cutting meat.
(AR at pp. 35, 40, ECF
No. 15).
Plaintiff challenges the ALJ’s decision at step five of
the evaluation process on three grounds.
First, Plaintiff argues that the ALJ erred by failing to
ask the vocational expert whether his testimony conflicted
with the Dictionary of Occupational Titles.
Second, Plaintiff asserts that the vocational expert’s
testimony conflicted with the Dictionary of Occupational
Titles.
Third, Plaintiff claims that the ALJ did not adequately
15
develop the record and assist him in the proceedings.
1.
The ALJ Did Not Inquire of the Vocational Expert
Whether a Conflict Existed Between his Testimony and
the Dictionary of Occupational Titles
Social Security Ruling 00-4p states that when a
vocational expert provides evidence to the ALJ about the
requirements of a job or occupation, the ALJ has an
affirmative responsibility to ask about any possible conflict
between the vocational expert’s evidence and information
provided in the Dictionary of Occupational Titles.
4p, 2000 WL 1898704 (2000).
S.S.R. 00-
SSR 00-4p further provides that
the ALJ “will ask” the vocational expert if the evidence
provided is consistent with the Dictionary of Occupational
Titles and obtain a reasonable explanation of any apparent
conflict.
Id.
The Ninth Circuit Court of Appeals held in Massachi v.
Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 2007) that Social
Security Ruling 00-4p requires the ALJ to inquire of the
vocational expert whether the expert’s testimony conflicts
with the presented evidence from the Dictionary of
Occupational Titles.
Here, it is undisputed that the ALJ did not specifically
inquire of the vocational expert whether his testimony
16
conflicted with the jobs he cited in the Dictionary of
Occupational Titles.
Plaintiff argues in his Opening Brief
that failure to conduct such an inquiry of the vocational
expert requires remand.
Contrary to Plaintiff’s argument,
remand is not automatically warranted when an ALJ did not ask
the vocational expert about potential conflicts with the
Dictionary of Occupational Titles.
Rather, the ALJ’s failure
to inquire is subject to “harmless error” review.
Massachi,
486 F.3d at 1154 n.19; Perea v. Comm’r Social Security, 574
Fed. Appx. 771, 771-72 (9th Cir. 2014); Huizar v. Comm’r of
Social Security, 428 Fed. Appx. 678, 679-80 (9th Cir. 2011).
2.
The ALJ’s Failure to Ask the Vocational Expert if a
Conflict Existed With the Dictionary of Occupational
Titles Was Harmless Error
The Ninth Circuit Court of Appeals has explained that it
has long recognized that harmless error principles apply in
the Social Security Act context.
Molina v. Astrue, 674 F.3d
1104, 1115 (9th Cir. 2012).
Failure to inquire of the vocational expert whether his
testimony conflicts with the Dictionary of Occupational Titles
evidence is harmless error where there is no apparent conflict
with the Dictionary of Occupational Titles.
Flores v. Colvin,
546 Fed. Appx. 638, 640-41 (9th Cir. 2013); Broom v. Colvin,
17
2015 WL 1180514, *5 (C.D. Cal. Mar. 13, 2015).
a.
There Was No Conflict Between the Vocational
Expert’s Testimony Regarding Light Work
Positions and the Definitions in the Dictionary
of Occupational Titles
Plaintiff asserts that there was a conflict between the
vocational expert’s testimony as to the light work positions
available and the definitions in the Dictionary of
Occupational Titles.
21).
(Pla.’s Opening Brief at p. 12, ECF No.
Review of the record demonstrates that there was no
conflict between the vocational expert’s testimony and the
Dictionary of Occupational Titles.
The vocational expert responded to the ALJ’s hypothetical
by stating that there were light work positions available for
a person with such impairments in the following four
occupations:
(1)
Flagger is defined as follows:
Controls movement of vehicular traffic through
construction projects: Discusses traffic routing
plans, and type and location of control points with
superior. Distributes traffic control signs and
markers along site in designated pattern. Directs
movement of traffic through site, using sign, hand,
and flag signals. Warns construction workers when
approaching vehicle fails to heed signals to prevent
accident and injury to workers. Informs drivers of
detour routes through construction sites. Records
license number of traffic control violators for
police. May give hand marker to last driver in line
18
up of one-way traffic for Flagger (construction) at
opposite end of site, signaling clearance for
reverse flow of traffic.
DOT #372.677-022, 1991 WL 673097.
(2)
Usher is defined as follows:
Assists patrons at entertainment events to find
seats, search for lost articles, and locate
facilities, such as restrooms and telephones.
Distributes programs to patrons. Assists other
workers to change advertising display
DOT #344.677-014, 1991 WL 672865.
(3)
Sandwich Board Carrier is defined as follows:
Wears sign boards and walks in public to advertise
merchandise, services, or belief. May distribute
handbills to passers-by [ADVERTISING-MATERIAL
DISTRIBUTOR (any industry)]. May wear costume to
attract attention [IMPERSONATOR, CHARACTER (any
industry)]. May work for labor organization and be
designed Picket, Labor Union (nonprofit org.).
DOT #299.687-014, 1991 WL 672646.
(4)
Boat Rental Clerk is defined as follows:
Rents canoes, motorboats, rowboats, sailboats, and
fishing equipment: Explains rental rates and
operation of boats and equipment to customer.
Assists customers in and out of boats. Launches and
moors boats. Tows disabled boats to shore, using
motorboat. Calculates rental payment and collects
payment from customer. May make minor adjustments
and repairs on motors of motorboats, such as
replacing battery, using handtools. May pump water
out of boats, using mechanical pump.
DOT #295.467-014, 1991 WL 672596.
(AR at pp. 46-48, ECF No. 15).
19
The ALJ found that pursuant to S.S.R. 00-4p “the
vocational expert’s testimony is consistent with the
information contained in the Dictionary of Occupational
Titles.”
(AR at p. 16, ECF No. 15).
Plaintiff argues the light work positions identified by
the vocational expert conflict with the Dictionary of
Occupational Titles because they include requirements that he
cannot perform, specifically lifting more than fifteen pounds
and carrying such weight.
(Pla.’s Opening Brief at p. 12, ECF
No. 21; Pla.’s Reply Brief at p. 4, ECF No. 25).
Plaintiff misconstrues the record.
A position classified
as light work does not necessarily require the physical
exertion that Plaintiff attempts to read into the definitions.
The Dictionary of Occupational Titles lists Flagger, Usher,
Sandwich Board Carrier, and Boat Rental Clerk positions as
“light work.”
Each position includes the light work
definition similar to the physical exertion requirements set
forth in 20 C.F.R. § 416.967(b).
The Dictionary of
Occupational Titles lists the strength for each position as
“light work” stating it as follows:
Light work - Exerting up to 20 pounds of force
occasionally (Occasionally: activity or condition
exists up to 1/3 of the time) and/or up to 10 pounds
of force frequently (Frequently: activity of
condition exists from 1/3 to 2/3 of the time) and/or
20
a negligible amount of force constantly (Constantly:
activity or condition exists 2/3 or more of the
time) to move objects. Physical demand requirements
are in excess of those for Sedentary Work. Even
though the weight lifted may be only a negligible
amount, a job should be rated Light Work: (1) when
it requires walking or standing to a significant
degree; or (2) when it requires sitting most of the
time but entails pushing and/or pulling of arm or
leg controls; and/or (3) when the job requires
working at a production rate pace entailing the
constant pushing and/or pulling of materials even
though the weight of those materials is negligible.
See DOT #372.677-022, 1991 WL 673097; DOT #344.677-014,
1991 WL 672865; DOT #299.687-014, 1991 WL 672646; DOT
#295.467-014, 1991 WL 672596 (emphasis added).
Plaintiff’s argument that the positions require lifting
and carrying 20 pounds is incorrect.
None of the positions
indicate that lifting 20 pounds would be a mandatory
requirement of the jobs.
Aside from the Sandwich Board
Carrier, none of the positions describe any job tasks that
would require substantial “carrying.”
None of the positions
describe lifting or carrying weight beyond the limitations
provided in the hypothetical posed by the ALJ.
None of the
positions indicate that carrying any significant weight is a
requirement of the job duties identified by the vocational
expert.
See DOT #372.677-022, 1991 WL 673097; DOT #344.677-
014, 1991 WL 672865; DOT #299.687-014, 1991 WL 672646; DOT
#295.467-014, 1991 WL 672596.
21
The vocational expert’s testimony did not conflict with
the Dictionary of Occupational Titles because the regulations
make clear that lifting or carrying 20 pounds is not
necessarily a requirement of any light work position.
The
regulations provide that “[e]ven though the weight lifted [in
a light work position] may be very little, a job is in [the
light work] category when it required a good deal of walking
or standing, or when it involves sitting most of the time with
some pushing and pulling of arm or leg controls.”
20 C.F.R. §
416.967(b).
The primary requirements of the positions identified by
the vocational expert involve a “good deal” of sitting,
standing, or walking that would prevent the positions from
being classified as sedentary.
20 C.F.R. § 416.967(b); see
DOT #372.677-022, 1991 WL 673097; DOT #344.677-014, 1991 WL
672865; DOT #299.687-014, 1991 WL 672646; DOT #295.467-014,
1991 WL 672596.
Plaintiff was found not to have any limitations in
sitting, standing or walking as required to perform the light
work jobs as identified by the vocational expert.
45-46, ECF No. 15).
(AR at pp.
Plaintiff does not dispute that he has no
limitations in sitting, standing, or walking that would allow
him to perform light work as limited by the hypothetical posed
22
by the ALJ.
There is no conflict between the vocational
expert’s testimony as to the positions available based on the
limitations set forth in the ALJ’s hypothetical and the
definitions in the Dictionary of Occupational Titles.
b.
There Was No Conflict Between the Vocational
Expert’s Testimony as to the Jobs Available
Based on Use of Hands and the Definitions in the
Dictionary of Occupational Titles
Plaintiff argues in his opening brief that the Usher and
Boat Rental Clerk positions require “good use of both hands.”
(Pla.’s Opening Brief at p. 12, ECF No. 21).
Plaintiff also
argues that the Flagger position requires frequent handling,
which would not be permitted with Plaintiff’s left, nondominant hand.
(Id.)
Again, Plaintiff has mischaracterized
the requirements of the positions identified by the vocational
expert.
None of the positions identified by the vocational
expert, including the Usher and Boat Rental Clerk positions,
state that “good use of both hands” is required.
See DOT
#344.677-014, 1991 WL 672865; DOT #295.467-014, 1991 WL
672596.
Courts in the Ninth Circuit Court of Appeals have
routinely held that a job requiring reaching, handling, or
fingering does not necessarily involve the use of both hands
23
absent affirmative evidence to the contrary.
Feibusch v.
Astrue, Civ. No. 07-0244BMK, 2008 WL 583554, at *5 (D. Haw.
Mar. 4, 2008); Slye v. Astrue, 2012 WL 425266, *4 (C.D. Cal.
Feb. 9, 2012) (citing McConnell v. Astrue, 2010 WL 1946728, at
*7 (C.D. Cal. May 10, 2010)(collecting cases) and Gutierrez v.
Astrue, 2012 WL 234366, at *2 (C.D. Cal. Jan. 24, 2012)
(finding that the requirement that an employee frequently use
his hands to perform a job does not mean that he has to be
able to use both hands.”)).
The ALJ’s hypothetical limited the use of hands in the
question posed to the vocational expert.
Specifically, the
ALJ stated: “With either hand, no forceful grasping twerking.
With the [left] non-dominant upper extremity, occasional
handling, and fingering, and in addition to the no forceful
grasping or twerking, there’d be — I’d add no forceful
pinching.”
(AR at pp. 45-46, ECF No. 15).
The vocational expert took these limitations into account
and identified positions that required only occasional
reaching, handling, and fingering using one hand.
It is
undisputed that Plaintiff was not limited in reaching,
handling, or fingering with his dominant right hand.
There is no conflict between the Dictionary of
Occupational Titles definitions and the testimony of the
24
vocational expert as to the positions available.
Plaintiff’s
contentions that the positions identified by the vocational
expert conflict with the definitions because they require
considerable use of both hands is belied by the record.
c.
The ALJ Did Not Err in Relying on the Vocational
Expert’s Testimony to Find that Work is
Available for Plaintiff in “Significant Numbers”
in the National Economy
Plaintiff asserts that the ALJ erred by failing to make
appropriate inquiries of the vocational expert about the
number of available jobs someone with Plaintiff’s limitations
could perform.
(Pla.’s Opening Brief at p. 13, ECF No. 21).
According to the Social Security Act, an individual shall
be determined to be under a disability if he is unable to do
his previous work and cannot engage:
in any other kind of substantial gainful work which
exists in the national economy regardless of whether
such work exists in the immediate area in which he
lives, or whether a specific job vacancy exists for
him, or whether he would be hired if he applied for
work. For purposes of the preceding sentence (with
respect to any individual), ‘work which exists in
the national economy’ means work which exists in
significant numbers either in the region where such
individual lives or in several regions of the
country.
42 U.S.C. § 1382c(a)(3)(B).
The burden of establishing that there exists other work
in “significant numbers” lies with the Commissioner of Social
25
Security.
Tackett, 180 F.3d at 1099.
The AJL did ask the vocational expert about the number of
positions available for someone with Plaintiff’s limitations
and relied on the vocational expert’s testimony that there are
approximately 69,000 to 74,000 Flagger, Usher, Sandwich Board
Carrier, and Boat Rental Clerk positions in the national
economy.
The ALJ relied on the vocational expert’s testimony
to find that work exists for Plaintiff in significant numbers.
(AR at pp. 16, 46-48, ECF No. 15).
The Ninth Circuit Court of Appeals has “never set out a
bright-line rule” for what constitutes a significant number of
jobs but it has found that more than 25,000 jobs nationally
constitutes a significant number.
Gutierrez v. Comm’r of Soc.
Sec., 740 F.3d 519, 529 (9th Cir. 2014).
The regulations explain that work does not constitute a
significant number when there are only “isolated jobs that
exist only in very limited numbers in relatively few locations
outside of the region where [a claimant] live[s].”
20 C.F.R.
§ 416.966(b).
The ALJ’s reliance on the testimony of the vocational
expert as to the number of relevant jobs in the national
economy was warranted.
1218 (9th Cir. 2005).
Bayliss v. Barnhart, 427 F.3d 1211,
The ALJ’s finding that more than 69,000
26
positions were available for Plaintiff in the national economy
does not fall into the category of “isolated jobs” existing in
“very limited numbers.”
20 C.F.R. § 416.966(b).
The ALJ’s
finding that 69,000 or more positions exist in the national
economy satisfies the requirements of 42 U.S.C. §
1382c(a)(3)(B).
Id.
An ALJ must clarify discrepancies in the record only
where there is an apparent unresolved conflict that arises
between the vocational expert’s testimony and the Dictionary
of Occupational Titles.
Mickelson-Wurm v. Comm’r Soc. Sec.
Admin., 285 Fed. Appx. 482, 486 (9th Cir. 2008).
There was no
conflict between the vocational expert’s testimony and the
Dictionary of Occupational Titles and the ALJ properly
determined that the Plaintiff was not disabled.
Bayliss, 427
F.3d at 1218.
3.
The ALJ Properly Developed the Record and Afforded
Plaintiff the Opportunity to Question the Vocational
Expert and Call Witnesses
a.
The ALJ Was Not Required to Ask a Hypothetical
to the Vocational Expert On Behalf of the
Plaintiff that Included Impairments that Were
Not Supported by Substantial Evidence
Plaintiff argues that the ALJ erred when he did not help
him formulate a hypothetical to the vocational expert. (Pla.’s
Opening Brief at p. 14, ECF No. 21).
27
The ALJ has an affirmative duty to assist the claimant in
developing the record.
Bustamante, 262 F.3d at 954.
The
Ninth Circuit Court of Appeals has explained that when a
claimant appears at a hearing without counsel, the ALJ must be
especially diligent in ensuring that favorable as well as
unfavorable facts and circumstances are elicited.
Key v.
Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985).
The hearing transcript demonstrates that the ALJ properly
developed the record.
The ALJ explicitly informed Plaintiff
that he could cross-examine the vocational expert about his
testimony and the ALJ affirmatively volunteered to assist the
Plaintiff with posing hypothetical questions to the vocational
expert.
(AR at pp. 48-49, ECF No. 15).
The ALJ explained the
process to Plaintiff as follows:
ALJ:
Okay. What, what’s happening between
me and Mr. Fleck [the vocational
expert], Mr. Montero, is in this
analysis if, if I – I can pose a
hypothetical situation. The
vocational expert responds and tells
me whether there are any jobs to which
a person who fits that profile with
those limitations could – that exist,
the jobs exist in the national economy
.... So, you at this point can ask Mr.
Fleck about any answers he gave. You
can also say, you know, Judge, I heard
what you said, but I can’t do all
those things that you said I could do,
and I can help you pose a different
hypothetical question to Mr. Fleck.
28
(AR at pp. 48-49, ECF No. 15).
Plaintiff responded to the ALJ’s offer of assistance by
asserting that he could not work in any position.
49-50, ECF No. 15).
(AR at pp.
Plaintiff did not pose a different
hypothetical to the vocational expert and did not request that
the ALJ pose a different hypothetical to the vocational
expert.
In Plaintiff’s briefs he claims that he responded to the
ALJ’s offer of assistance by attempting to pose a hypothetical
question and alleges the ALJ ignored his testimony.
(Pla.’s
Opening Brief at pp. 15-16, ECF No. 21; Pla.’s Reply Brief at
p. 9, ECF No. 25).
Plaintiff has misstated the record.
The
transcript reflects that Plaintiff’s response to the ALJ’s
offer of assistance was as follows:
Pla:
Well, well, you know what, you know
what? I’m thinking you know, like I’m
hearing this, and I’m thinking, you
know I’ve considered getting you know
similar types of jobs, but what’s –
why I say I cannot be responsible and
be of any really value to any employer
is because there’s a lot of times like
I say, I’m sitting here right now.
I, I didn’t do nothing just now, and my
hands start aching. It just starts aching,
and any – you ever had pain where you
cannot, you cannot think straight, like it
kind of boggles your mind, I mean. You
know, I, I get that, and I, I don’t, I, I
don’t think I could be of any use to, to
anybody, like I say I, I, I do things
29
around the house at home, I, I, I cannot, I
cannot do it continuously everyday. I’m,
I’m not okay everyday.
Some, some days some, just out of the blue,
I mean I just – it just starts aching. I,
I don’t know why maybe something I did
yesterday, you know, and it agitated it,
or, or what, but it just – you know and,
and I know of like an employer they need
somebody who they can rely on. I mean you
know, every, every employer wants somebody
they can, they can depend on. That’s going
to be there when they need them, you know
all, all the time, I mean you know, and I
cannot, I, I can’t. I, I really I can’t, I
can’t – I wish I could say I could, I mean,
and – because I, I would like nothing more
than to be working.
(AR at pp. 49-50, ECF No. 15).
Plaintiff did not express a desire to pose a question to
the vocational expert.
Plaintiff argued that he was unable to
work in any position due to his injuries.
Plaintiff also alleges there was an error by the ALJ
because he did not include limitations in his hypothetical
based on Plaintiff’s testimony that he is unable to engage in
any work.
Plaintiff relies on language in the Ninth Circuit
Court of Appeals’ decision in Gallant v. Heckler, 753 F.2d
1450, 1456 (9th Cir. 1984) to argue that an ALJ should include
limitations in a hypothetical that he does not find credible.
(See Pla.’s Opening Brief at p. 9, ECF No. 21).
Contrary to Plaintiff’s position, the ALJ is not required
30
to pose hypothetical questions to the vocational expert when
the limitations in the hypothetical are not supported by
substantial evidence.
Magallanes, 881 F.2d at 756.
The Ninth
Circuit Court of Appeals has routinely held that it is proper
for an ALJ to limit a hypothetical to the limitations that are
supported by substantial evidence in the record.
Britton v.
Colvin, 787 F.3d 1011, 1013 (9th Cir. 2015) (citing Osenbrock,
240 F.3d at 1164); Pruitt v. Comm’r Soc. Sec., 612 Fed. Appx.
891, 894 (9th Cir. 2015); Greger v. Barnhart, 464 F.3d 968,
973 (9th Cir. 2006).
Plaintiff argues in his briefs to the Court that the ALJ
should have included limitations for rest breaks and days
missed from work into the hypothetical posed to the vocational
expert.
(See Pla.’s Opening Brief at p. 15, ECF No. 21;
Pla.’s Reply Brief at pp. 10-12, ECF No. 25).
The ALJ was not
required to pose these limitations to the vocational expert
because he discredited Plaintiff’s testimony regarding the
need for such limitations.
Rollins v. Massanari, 261 F.3d
853, 857 (9th Cir. 2001); Batson v. Comm’r Soc. Sec. Admin.,
359 F.3d 1190, 1197 (9th Cir. 2004).
Plaintiff himself chose
not to pose a hypothetical with these limitations and he did
not testify as to his ability to work if provided with a
typical employer’s sick leave benefits.
31
Plaintiff argues that the ALJ did not issue a credibility
determination that would support the exclusion of Plaintiff’s
testimony from the ALJ’s hypothetical.
p. 11, ECF No. 25).
(Pla.’s Reply Brief at
Plaintiff is incorrect.
The ALJ
specifically found that Plaintiff’s “statements concerning the
intensity, persistence and limiting effects of [Plaintiff’s]
symptoms are not entirely credible.”
(AR at p. 12, ECF No.
15).
The ALJ is not required to believe every allegation of
disabling pain made by a claimant.
597, 603 (9th Cir. 1989).
Fair v. Bowen, 885 F.2d
The ALJ may discredit a claimant’s
testimony when the claimant reports participation in everyday
activities indicating capacities that are transferable to a
work setting.
Molina, 674 F.3d at 1113 (citing Morgan v.
Comm’r Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999)).
The ALJ credited the medical evidence in the record,
particularly the examining physician’s report as to the
limitations in Plaintiff’s upper extremities.
14, ECF No. 15).
(Id. at pp. 13-
The ALJ incorporated these limitations in
the hypothetical posed to the vocational expert.
The ALJ did not credit Plaintiff’s statements that he was
unable to work at all based on the persistence of his
symptoms.
The ALJ declined to credit the testimony that
32
Plaintiff was unable to work based on Plaintiff’s own
statements that demonstrate he has adequate mobility in his
extremities that allow him to perform regular tasks.
The ALJ
stated: “[w]ith regard to his activities of daily living, he
testified that he tries to do things around the house, though
certain things cause wrist/hand pain.
He stated he recently
painted the home, but it took him about half a year...In his
function reports, while he described difficulty using his
hands, his statements essentially reflect adequate mobility,
for instance, he is able to go shopping for necessities, and
has gone fishing.”
(AR at p. 14, ECF No. 15).
The ALJ did not err in discrediting Plaintiff’s testimony
that he may be unable to work in the positions identified by
the vocational expert.
The ALJ may discredit the claimant’s
testimony that he is totally impaired and unable to work when
the claimant testifies that he is able to participate in daily
activities, even when the testimony suggests some difficulty
functioning.
Molina, 674 F.3d at 1113; Fair, 885 F.2d at 603;
Turner v. Comm’r Soc. Sec., 613 F.3d 1217, 1225 (9th Cir.
2010).
The ALJ was not required to pose a hypothetical to the
vocational expert based on the pain limitations Plaintiff
claimed he had because the ALJ properly found that such
33
limitations were not supported by the record.
Rollins, 261
F.3d at 857.
b.
Plaintiff Declined to Call His Witness
Plaintiff claims that the ALJ erred by not asking him at
the end of the hearing whether he wanted to call a witness.
(Pla.’s Opening Brief at p. 16, n.4, ECF No. 21).
The record reflects that Plaintiff was informed about the
procedures for calling witnesses at the hearing and never
affirmatively requested to have a witness testify.
(AR at pp.
49-50, ECF No. 15).
At the beginning of the hearing, the ALJ explained the
purpose of the hearing and informed the Plaintiff that his
decision would be based on the exhibits and testimony taken at
the hearing.
(AR at p. 25, ECF No. 15).
The ALJ stated that
it was his understanding that the Plaintiff had brought a
witness to testify and informed Plaintiff that he would be
allowed to call her to testify following Plaintiff’s own
testimony.
(Id.)
Plaintiff responded to the ALJ by stating: “She just was,
if you needed to, you know ask her any question or anything
like that.”
(Id.)
Following the testimony of the Plaintiff and the
34
vocational expert, the ALJ provided Plaintiff the opportunity
to question the vocational expert and to provide additional
testimony.
(AR at pp. 49-50, ECF No. 15).
Plaintiff provided
additional testimony but he never requested that a witness
testify on his behalf. (Id.)
The ALJ explained the process by
which he would issue a decision and informed Plaintiff of
potential actions he could pursue after the hearing.
pp. 50-51).
(Id. at
Plaintiff did not indicate he wished to call a
witness.
Plaintiff has not demonstrated any prejudice or
unfairness by the ALJ as Plaintiff was provided with the
opportunity to call a witness but did not do so.
See Vidal v.
Harris, 637 F.2d 710, 713 (9th Cir. 1981) (explaining that
lack of counsel does not affect the validity of an
administrative hearing unless the claimant can demonstrate
prejudice or unfairness).
The Court has reviewed the entire record and finds that
there is substantial evidence to support the ALJ’s decision.
CONCLUSION
The Commissioner of Social Security Administration’s
decision is AFFIRMED.
35
The Clerk of Court is Ordered to CLOSE THE CASE.
IT IS SO ORDERED.
DATED: February 5, 2016, Honolulu, Hawaii.
/s/ Helen Gillmor
Helen Gillmor
United States District Judge
Patrick H. Montero v. Carolyn W. Colvin, Social Security
Administration Commissioner; Civ. No. 15-00196 HG-KSC; ORDER
AFFIRMING THE DECISION OF THE SOCIAL SECURITY ADMINISTRATION
COMMISSIONER
36
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