Tolento v. Berryhill

Filing 23

ORDERED that 22 Report and Recommendation is STRICKEN. ORDERED that 19 Tolento's Motion for Reversal and/or Remand is DENIED. FURTHER ORDERED that 20 the Commissioner's Cross-Motion to Affirm is GRANTED. Signed by Magistrate Judge Cam Ferenbach on 2/8/2018. (Copies have been distributed pursuant to the NEF - MMM)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 5 CELIA B. TOLENTO, 6 Plaintiff, 2:17-cv-01516-VCF 7 8 9 vs. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 10 ORDER MOTION FOR REVERSAL AND/OR REMAND [ECF NO. 19], CROSS MOTION FOR SUMMARY JUDGMENT TO AFFIRM [ECF NO. 20]. 11 The Court inadvertently entered the Report and Recommendation (ECF No. 22) in this case. 12 Accordingly, IT IS HEREBY ORDERED that the report and recommendation on the Motion for Reversal 13 and/or Remand (ECF No. 19) and Cross Motion for Summary Judgment to Affirm (ECF No. 20) is 14 stricken. 15 16 This matter involves Plaintiff Celia B. Tolento’s appeal from the Commissioner’s final decision 17 denying her social security benefits. Before the Court is Tolento’s Motion for Reversal or Remand (ECF 18 No. 19) and the Commissioner of Social Security’s motion for summary judgment to affirm (ECF No. 19 20). For the reasons stated below the Court denies Tolento’s motion to reverse or remand and grants the 20 Commissioner’s motion for summary judgment to affirm. 21 STANDARD OF REVIEW 22 The Fifth Amendment prohibits the government from depriving persons of property without due 23 process of law. U.S. CONST. amend. V. Social security claimants have a constitutionally protected 24 property interest in social security benefits. Mathews v. Eldridge, 424 U.S. 319, 332 (1976). 42 U.S.C. § 25 1 405(g) authorizes the district court to review final decisions made by the Commissioner of Social 2 Security. The district court will not disturb an Administrative Law Judge’s (“ALJ”) denial of benefits 3 4 unless “it is not supported by substantial evidence or it is based on legal error.” Burch v. Barnhart, 400 5 F.3d 676, 679 (9th Cir. 2005). When reviewing an ALJ’s decision, “the findings of the Commissioner of 6 Social Security as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 7 405(g). Substantial evidence means, “such relevant evidence as a reasonable mind might accept as 8 adequate to support a conclusion” and is defined as “more than a mere scintilla” of evidence. Gutierrez 9 v. Comm’r of Soc Sec., 740 F.3d 519, 522 (9th Cir. 2014); Burch, 400 F.3d at 679. If the evidence could give rise to multiple rational interpretations, the court must uphold the 10 11 ALJ’s conclusion. Burch, 400 F.3d at 679. This means that the Court will uphold the Commissioner’s 12 decision if it has any support in the record. See, e.g., Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 13 1988) (stating that the court may not reweigh evidence, try the case de novo, or overturn the 14 Commissioner’s decision if the evidence preponderates against it). DISCUSSION 15 16 I. Factual Background The ALJ applied the five step sequential analysis pursuant to 20 C.F.R § 404.1520. The ALJ 17 18 found that while Tolento suffered from various physical impairments, she also maintained “the residual 19 functional capacity to perform light work… and occasional overhead reaching with both arms.” (AR 20 17).1 The ALJ found that Tolento was therefore able to work as a receptionist, and thus denied her social 21 security benefits. (AR 21). The ALJ based his determination upon the Dictionary of Occupational Titles 22 (“DOT”) 237.367-038, claimant’s medical history, objective medical evidence, and the testimony of a 23 vocation expert who testified that Tolento had the residual functioning capacity to work as a 24 receptionist. (AR 17-21, 28-45). 25 1 AR signifies a citation to the Administrative Record Tolento claims that the ALJ made a legal error when he concluded that she had the residual 1 2 function capacity to continue working as a receptionist. Specifically, Tolento argues that the DOT 3 definition of “receptionist” requires frequent reaching without defining if that reaching includes 4 overhead reaching. (ECF No. 19 at 7). Tolento argues that given the vagueness of this definition, the 5 ALJ’s finding that Tolento had the residual capacity to engage in work as a receptionist is in conflict 6 with his finding that she had the residual capacity to engage in only occasional overhead reaching. (ECF 7 No. 19 at 7). 8 II. 9 Analysis of Potential Conflict A Commissioner’s decision will be upheld if it has any support in the record. Bowling, 36 F.3d at 10 434. While an ALJ may rely on the testimony of a vocation expert in reaching a decision, an ALJ must 11 first inquire if the testimony conflicts with the DOT. Silvera v. Astrue, No. CV 09-1935 JC, 2010 WL 12 3001619, at *3 (C.D Cal July 29, 2010). The failure to do so, however, may be harmless error if no 13 actual conflict exists. Id. For there to be a conflict between an expert’s testimony and the DOT, the 14 discrepancy must be “obvious or apparent.” Gutierrez v. Colvin, 844 F.3d 804, 808 (9th Cir. 2016). For 15 a discrepancy to be obvious or apparent, the testimony “must be at odds with the Dictionary’s listing of 16 job requirements that are essential, integral, or expected.” Id. 17 The ALJ’s decision that Tolento had the residual functional capacity to work as a receptionist did 18 not contradict his finding that she had the residual capacity to engage in only occasional overhead 19 reaching, because his decision has sufficient support within the record. While Tolento argues that the 20 DOT definition is too vague to support the ALJ’s finding, the ALJ did not rely solely on the DOT 21 definition in reaching his decision. He also consulted a vocation expert who testified that given 22 Tolento’s physical impairments, she could perform the work of a receptionist. (AR 40-43). Further, the 23 ALJ met his affirmative responsibility to question the vocation expert about any potential conflict 24 between his testimony and the DOT definition. After informing the vocation expert of Tolento’s 25 restriction on bilateral overhead reaching, the ALJ specifically asked the vocation expert if his testimony 1 was consistent with the definition found within the DOT. (AR 41-43). The expert answered in the 2 affirmative. (AR 43). 3 There is no conflict between the vocation expert’s testimony and the definition provided in DOT 4 237.367-038. Any discrepancy between the vocation expert’s testimony and the DOT definition is not 5 apparent or obvious. Therefore, no conflict between the two exists. Tolento is correct that the language 6 in DOT 237.367-038 does not specify the direction of reaching required of a receptionist. However, this 7 very omission demonstrates that frequent over-head bilateral reaching is not an essential, integral, or 8 expected requirement of being a receptionist. See Brister v. Colvin, No. 3:12-CV-00726-JE, 2013 WL 9 2318842, at *11 (D. Ord. May 27, 2013) (where the Court held that a DOT definition that required 10 frequent reaching did not indicate that the position required frequent overhead reaching). The DOT is 11 silent as to whether receptionists must engage in more than occasional overhead reaching. The vocation 12 expert testified that (1) someone with Tolento’s specific physical impairments may work as a 13 receptionist, and (2) that his testimony did not conflict with DOT 237.367-038. There is substantial 14 evidence in the record to support the Commissioner’s decision. (AR 17-21, 28-45). 15 ACCORDINGLY, 16 IT IS HEREBY ORDERED that Tolento’s Motion for Reversal and/or Remand (ECF No. 19) is 17 18 19 20 21 22 23 24 25 DENIED. IT IS FURTHER ORDERED that the Commissioner’s Cross-Motion to Affirm (ECF No. 20) is GRANTED. DATED this 7th day of February, 2018. _________________________ CAM FERENBACH UNITED STATES MAGISTRATE JUDGE

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