Sanders v. Commissioner Social Security Administration
Filing
27
Opinion and Order. The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter. Signed on 07/07/2015 by Judge Anna J. Brown. See attached 20 page Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ROGER SANDERS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner, Social Security
Administration,
Defendant.
BRUCE W. BREWER
P.O. Box 421
West Linn, OR 97068
(360) 688-0458
Attorney for Plaintiff
BILLY J. WILLIAMS
Acting United States Attorney
RONALD K. SILVER
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1003
1 - OPINION AND ORDER
3:14-CV-00586-BR
OPINION AND ORDER
DAVID MORADO
Regional Chief Counsel
LISA GOLDOFTAS
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900
Seattle, WA 98104
(206) 615-2531
Attorneys for Defendant
BROWN, Judge.
Plaintiff Roger Sanders seeks judicial review of a final
decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff's application
for Disability Insurance Benefits (DIB) under Title II of the
Social Security Act.
This Court has jurisdiction to review the
Commissioner's final decision pursuant to 42 U.S.C. § 405(g).
For the reasons that follow, the Court AFFIRMS the decision
of the Commissioner and DISMISSES this matter.
ADMINISTRATIVE HISTORY
Plaintiff filed an application for DIB on October 5, 2004,
alleging a disability onset date of September 28, 1990.
Tr. 1019.1
The application was denied initially and on
reconsideration.
An Administrative Law Judge (ALJ) held a
hearing on April 30, 2008.
1
Tr. 983-1015.
At the hearing
Citations to the official transcript of record filed by
the Commissioner on September 5, 2013, are referred to as "Tr."
2 - OPINION AND ORDER
Plaintiff was represented by an attorney.
Plaintiff, a medical
expert (ME), and a vocational expert (VE) testified at the
hearing.
The ALJ issued a decision on June 27, 2008, in which he
found Plaintiff was not disabled before his December 31, 1999,
date last insured, and, therefore, was not entitled to DIB.
Tr. 10-22.
Plaintiff appealed the matter to the United States
District Court.
On October 20, 2011, United States Magistrate
Judge Paul Papak entered a Judgment of Remand in which he
remanded the matter to the ALJ
to further consider Plaintiff's date last insured
as it appears it is December 31, 1991, and not
December 31, 1999, as found in the decision.
Further, the Administrative Law Judge shall obtain
additional vocational expert testimony at step 5
regarding the number of jobs available and the
support for any jobs that are inconsistent with
the Dictionary of Occupational Titles. Plaintiff
will have the Opportunity for a de novo hearing.
Tr. 1029.
On March 6, 2012, the Appeals Council entered an order in
which it remanded the matter to the ALJ noting:
[A] review of the Social Security earnings record
reflects that the claimant is actually so last
insured on December 31, 1991. . . . Thus, the
claim for [DIB] should only be adjudicated through
December 31, 1991. . . . Moreover, . . .
supplemental vocational expert evidence is needed
regarding consistency with the Dictionary of
Occupational Titles.
Tr. 1040.
An Administrative Law Judge (ALJ) held a hearing on remand
3 - OPINION AND ORDER
on October 29, 2013, regarding Plaintiff’s disability during the
closed period of September 28, 1990, through December 31, 1991.
Tr. 1104-18.
At the hearing Plaintiff was represented by an
attorney and a VE testified.
On December 9, 2013, an ALJ issued
a decision on remand in which he found Plaintiff was not disabled
between September 28, 1990, and December 31, 1991, and,
therefore, he was not entitled to DIB benefits for the closed
period.
Tr. 1016-28.
Pursuant to 20 C.F.R. § 404.984(d), that
decision became the final decision of the Commissioner when the
Appeals Council denied Plaintiff's request for review.
Tr. 1-4.
See Sims v. Apfel, 530 U.S. 103, 106-07 (2000).
BACKGROUND
Plaintiff was born August 18, 1951; was 56 years old at the
time of the first hearing; and was 62 years old at the time of
the second hearing.
Tr. 1027.
Tr. 48.
Plaintiff completed high school.
Plaintiff does not have any past relevant work
experience.
Tr. 1027.
Plaintiff alleges disability during the relevant period due
to degenerative disc disease of the cervical spine.
Tr. 1022.
Except when noted, Plaintiff does not challenge the ALJ’s
summary of the medical evidence.
After carefully reviewing the
medical records, this Court adopts the ALJ’s summary of the
medical evidence.
See Tr. 1024-26.
4 - OPINION AND ORDER
STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Cir. 2012).
Molina v. Astrue, 674 F.3d 1104, 1110 (9th
To meet this burden, a claimant must demonstrate his
inability "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."
§ 423(d)(1)(A).
42 U.S.C.
The ALJ must develop the record when there is
ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.
McLeod v. Astrue, 640 F.3d
881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
453, 459–60 (9th Cir. 2001)).
The district court must affirm the Commissioner's decision
if it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole.
U.S.C. § 405(g).
42
See also Brewes v. Comm’r of Soc. Sec. Admin.,
682 F.3d 1157, 1161 (9th Cir. 2012).
Substantial evidence is
“relevant evidence that a reasonable mind might accept as
adequate to support a conclusion.”
Molina, 674 F.3d. at 1110-11
(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009)).
"It is more than a mere scintilla [of
evidence] but less than a preponderance."
574 F.3d at 690).
5 - OPINION AND ORDER
Id. (citing Valentine,
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities.
2009).
Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.
The court must weigh all of the evidence whether it
supports or detracts from the Commissioner's decision.
Ryan v.
Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
Even
when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner’s findings
if they are supported by inferences reasonably drawn from the
Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).
record.
The court may not substitute its judgment for that of the
Commissioner.
Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.
2006).
DISABILITY ANALYSIS
I.
The Regulatory Sequential Evaluation
The Commissioner has developed a five-step sequential
inquiry to determine whether a claimant is disabled within the
meaning of the Act.
2007).
Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.
See also 20 C.F.R. § 404.1520.
Each step is potentially
dispositive.
At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity.
20 C.F.R. § 404.1520(a)(4)(I).
6 - OPINION AND ORDER
See also Keyser v.
Comm’r of Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011).
At Step Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairment or combination of impairments.
404.1520(a)(4)(ii).
20 C.F.R. §§ 404.1509,
See also Keyser, 648 F.3d at 724.
At Step Three the claimant is disabled if the Commissioner
determines the claimant’s impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
§ 404.1520(a)(4)(iii).
20 C.F.R.
See also Keyser, 648 F.3d at 724.
The
criteria for the listed impairments, known as Listings, are
enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed
Impairments).
If the Commissioner proceeds beyond Step Three, she must
assess the claimant’s residual functional capacity (RFC).
The
claimant’s RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite his limitations.
§ 404.1520(e).
20 C.F.R.
See also Social Security Ruling (SSR) 96-8p.
“A
'regular and continuing basis' means 8 hours a day, for 5 days a
week, or an equivalent schedule."
SSR 96-8p, at *1.
In other
words, the Social Security Act does not require complete
incapacity to be disabled.
Taylor v. Comm’r of Soc. Sec. Admin.,
659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885
7 - OPINION AND ORDER
F.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work he has done in the past.
20 C.F.R. § 404.1520(a)(4)(iv).
See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do any other work that exists in
the national economy.
20 C.F.R. § 404.1520(a)(4)(v).
Keyser, 648 F.3d at 724-25.
See also
Here the burden shifts to the
Commissioner to show a significant number of jobs exist in the
national economy that the claimant can perform.
Lockwood v.
Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010).
The Commissioner may satisfy this burden through the testimony of
a VE or by reference to the Medical-Vocational Guidelines set
forth in the regulations at 20 C.F.R. part 404, subpart P,
appendix 2.
If the Commissioner meets this burden, the claimant
is not disabled.
20 C.F.R. § 404.1520(g)(1).
ALJ'S FINDINGS
At Step One the ALJ found Plaintiff had not engaged in
substantial gainful activity during the relevant period of
September 28, 1990, through December 31, 1991.
Tr. 1022.
At Step Two the ALJ found Plaintiff during the relevant
period had the severe impairment of degenerative disc disease of
8 - OPINION AND ORDER
the cervical spine.
Tr. 1022.
The ALJ found Plaintiff’s
impairments of hepatitis C, liver disease, and a hernia were not
severe during the relevant period.
Tr. 1022.
At Step Three the ALJ concluded Plaintiff's medically
determinable impairment during the relevant period did not meet
or medically equal one of the listed impairments in 20 C.F.R.
part 404, subpart P, appendix 1.
Tr. 1022.
The ALJ found
Plaintiff had the RFC during the relevant period to perform light
work.
Tr. 1022.
The ALJ found Plaintiff could lift ten pounds
frequently and twenty pounds occasionally, could walk half a
block, could stand for thirty minutes, and could sit for one
hour.
Tr. 1022.
The ALJ found the Plaintiff could occasionally
use his right upper extremity for reaching above shoulder height
and occasionally rotate his head or neck.
Tr. 1022.
The ALJ
also found Plaintiff was “limited to repetitive tasks without the
exercise of independent judgment.”
Tr. 1022.
At Step Four the ALJ concluded Plaintiff had not performed
any past relevant work.
Tr. 1027.
At Step Five the ALJ found Plaintiff could perform jobs
during the relevant period that exist in significant numbers in
the national economy.
Tr. 1027.
Accordingly, the ALJ found
Plaintiff was not disabled during the relevant period.
9 - OPINION AND ORDER
DISCUSSION
Plaintiff contends the ALJ erred when he (1) did not give
Plaintiff a de novo hearing; (2) improperly rejected Plaintiff’s
testimony; (3) improperly gave “little weight” to the opinion of
nontreating physician Thomas Gritzka, M.D.; (4) erred at Step
Three when he found Plaintiff’s impairment did not medically
equal Listing 1.04; and (5) did not explain inconsistences
between the VE’s testimony and the information contained in the
DOT.
I.
Plaintiff received a sufficient hearing.
As noted, Magistrate Judge Papak and the Appeals Council
directed the ALJ to conduct a de novo hearing on remand.
The
Appeals Council directed the ALJ to provide Plaintiff “and his
representative with the opportunity to present additional,
relevant evidence and/or argument regarding the period ending
December 31, 1991.”
Tr. 1019, 1041.
Plaintiff asserts he did
not receive a do novo hearing because he did not testify at the
hearing on remand.
At the hearing on remand Plaintiff’s attorney explained
Plaintiff was not at the hearing because Plaintiff’s counsel had
been unable to contact Plaintiff.
Tr. 1107.
The ALJ noted
Plaintiff was not a necessary witness on remand because Plaintiff
already had testified fully at the April 2008 hearing about his
impairments and limitations during the remote, closed period.
10 - OPINION AND ORDER
Tr. 1108.
Plaintiff’s attorney proceeded with the hearing.
Tr. 1104-18.
“The burden is on the party claiming error to demonstrate
not only the error, but also that it affected his substantial
rights, which is to say, not merely his procedural rights.”
Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012).
Because
Plaintiff testified about his impairments and their effect on his
ability to work during the relevant period at the first hearing,
the Court concludes Plaintiff has not established that the ALJ
erred when he found Plaintiff’s testimony was unnecessary on
remand nor has Plaintiff shown any such error was not harmless.
II.
The ALJ gave clear and convincing reasons for partially
rejecting Plaintiff’s testimony.
Plaintiff alleges the ALJ erred when he failed to give clear
and convincing reasons for partially rejecting Plaintiff's
testimony at the April 2008 hearing.
In Cotton v. Bowen the Ninth Circuit established two
requirements for a claimant to present credible symptom
testimony:
The claimant must produce objective medical evidence
of an impairment or impairments, and he must show the impairment
or combination of impairments could reasonably be expected to
produce some degree of symptom.
Cir. 1986).
Cotton, 799 F.2d 1403, 1407 (9th
The claimant, however, need not produce objective
medical evidence of the actual symptoms or their severity.
Smolen, 80 F.3d at 1284.
11 - OPINION AND ORDER
If the claimant satisfies the above test and there is not
any affirmative evidence of malingering, the ALJ can reject the
claimant's pain testimony only if he provides clear and
convincing reasons for doing so.
Parra v. Astrue, 481 F.3d 742,
750 (9th Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834 (9th
Cir. 1995)).
General assertions that the claimant's testimony is
not credible are insufficient.
Id.
The ALJ must identify "what
testimony is not credible and what evidence undermines the
claimant's complaints."
Id. (quoting Lester, 81 F.3d at 834).
At the April 2008 hearing Plaintiff testified he did not
believe he could have worked during the closed period because at
that time he spent “[all] day long” lying down to keep pressure
off of his neck and taking pain medication.
Tr. 995.
Plaintiff
testified during the relevant period that he had pain at “a ten
[on a scale of one to ten and [he could] get it down to maybe a
seven by taking pain medication . . . and [using] that little
TENS machine.”
Tr. 996.
Plaintiff conceded Thomas Rosenbaum,
M.D., his treating neurosurgeon during the closed period,
“suggested surgery would be something [Plaintiff] should
consider.”
Tr. 994.
Plaintiff, however, did not “want to take a
chance on doing any kind of neck surgery because I was scared
that maybe it would paralyze me forever or something,” and “as
long as I kept going to [the] chiropractor and kept doing the
medication I was out of pain enough.”
12 - OPINION AND ORDER
Tr. 995.
The ALJ found Plaintiff’s testimony at the April 2008
hearing to be only “partial[ly] credible.”
Tr. 1024.
The ALJ found Plaintiff’s work history undermined his
assertion of total disability during the closed period.
Tr. 1026.
Specifically, even though Plaintiff testified he
performed salvage logging work, Plaintiff’s certified earnings
record did not show any earnings by Plaintiff from 1980 through
1989, which was ten years before Plaintiff’s alleged onset date.
The ALJ noted “[s]uch a . . . work history . . . raises questions
as to whether [Plaintiff’s] . . . unemployment [during the closed
period] is actually due to his medical impairments.”
Tr. 1026.
The ALJ also found Plaintiff’s self-described activities of daily
living during the closed period were not “limited to the extent
one would expect, given the complaints of disabling symptoms and
limitations.”
Tr. 1026.
Specifically, Plaintiff reported he was
able to do chores such as cooking, laundry, and cleaning; he was
able to drive, grocery shop, and do household errands; and he was
independent in his personal hygiene and financial affairs.
Tr. 1026.
Finally, the ALJ noted the treatment that Plaintiff
received during the closed period was “essentially routine and/or
conservative in nature and [was] generally successful in
controlling his symptoms” as indicated by Plaintiff’s refusal to
undergo surgery.
Tr. 1027.
On this record the Court finds the ALJ provided clear and
13 - OPINION AND ORDER
convincing reasons supported by substantial evidence in the
record for finding Plaintiff's testimony was only partially
credible.
The Court, therefore, concludes the ALJ did not err
when he rejected Plaintiff's testimony in part.
III. The ALJ did not err when he gave little weight to the
opinion of reviewing physician Thomas Gritzka, M.D.
On June 13, 2008, Dr. Gritzka, a nontreating, reviewing
physician, opined in a letter to Plaintiff’s counsel that
Plaintiff “suffered from clinically significant herniated discs
at CS-6 and C6-7.”
Tr. 981.
Dr. Gritzak further stated:
Based on the objective evidence, [Plaintiff’s]
spine condition has equaled listed impairment 1.04
since at least 6-29-90. His findings as of that
date are equal in severity to the findings set
forth by the listing. . . . His condition at that
time did not strictly meet listing 1.04A because
he did not have documented motor loss. However,
the forgoing [sic] findings (two levels of
herniated nucleus pulposi, two levels of nerve
root compromise i.e. compression, thecal sac
indentation, and reversal of the cervical lordotic
curve caused by muscle splinting) are medically
equivalent to the findings set forth in the "A"'
category of listing l.04. In other words, the
clinical and radiographic evidence establishes a
near-meeting of the listing but for the lack of
documented motor loss. However, the other
findings, in fact, represent a more debilitating
and painful condition than mere motor loss.
Tr. 982.
The ALJ gave Dr. Gritzka’s opinion “little weight.”
Tr. 1026.
A nonexamining physician is one who neither examines nor
treats the claimant.
Lester, 81 F.3d at 830.
“The Commissioner
may reject the opinion of a non-examining physician by reference
14 - OPINION AND ORDER
to specific evidence in the medical record.”
Sousa v. Callahan,
143 F.3d 1240, 1244 (9th Cir. 1998)(citation omitted).
"The
opinion of a nonexamining physician cannot by itself constitute
substantial evidence that justifies the rejection of the opinion
of either an examining physician or a treating physician."
at 831.
Id.
A nonexamining physician's opinion can constitute
substantial evidence if it is supported by other evidence in the
record.
Morgan v. Comm'r of Soc. Sec. Admin, 169 F.3d 595, 600
(9th Cir. 1999).
The ALJ noted Dr. Gritzka’s opinion did not “square with the
examination results of Dr. Rosenbaum,” Plaintiff’s treating
neurosurgeon.
Tr. 1026.
Specifically, Dr. Rosenbaum noted in a
November 1990 letter addressed to Plaintiff’s chiropractor and
drafted after an examination of Plaintiff:
It appears that [Plaintiff] has made very
significant progress with chiropractic treatment
and is now at a low level of discomfort. I
concurred with him that continued chiropractic
treatment would be appropriate and also gave him a
prescription for Clinoril as an anti-inflammatory
agent to be used for several weeks and then on an
as necessary basis if it offers him any relief. I
asked him to contact my office should he have an
exacerbation of his symptoms or need to consider
the surgical alternative in the future.
Tr. 177.
In addition, in August 1991 Plaintiff’s chiropractor
cleared Plaintiff to work during Plaintiff’s time in jail.
Tr. 183.
In June 1991 Plaintiff reported to his chiropractor
15 - OPINION AND ORDER
that he had been “lifting heavy furniture for the County.”
Tr. 185.
The ALJ also noted Frank McBarron, M.D., a medical expert,
testified at the April 2008 hearing that Plaintiff’s “treatment
notes and radiological imaging [did] not support a finding of
disability prior to 2004.”
Tr. 1025.
Dr. McBarron also
testified although Plaintiff “may have experienced pain and/or
decreased rand of motion prior to 2004, such symptoms do not
satisfy the criteria of section 1.04.”
Tr. 1025.
On this record the Court concludes the ALJ did not err when
he gave little weight to the opinion of Dr. Gritzka because the
ALJ supported his decision by reference to specific, substantial
evidence in the record.
IV.
The ALJ did not err at Step Three.
Plaintiff asserts the ALJ erred at Step Three when he found
Plaintiff’s impairment did not equal Listing 1.04 during the
relevant period.
Plaintiff relies on the opinion of Dr. Gritzka
in which he opined that Plaintiff’s impairment equaled Listing
1.04.
The decision whether a plaintiff equals a Listing is an
issue reserved to the Commissioner.
C.F.R. § 404.1527(d)(3).
See SSR 96-5p at *3-4; 20
The Commissioner “will not give any
special significance to the source of an opinion on issues
reserved to the Commissioner.”
16 - OPINION AND ORDER
20 C.F.R. § 404.1527(d)(3);
SSR 96-5p.
As noted, the ALJ gave little weight to Dr. Gritzka’s
opinion for legally sufficient reasons.
In addition, an “opinion
is . . . less persuasive [when] it was obtained by Appellant only
after the ALJ issued an adverse determination.”
Sullivan, 877 F.2d 20, 23 (9th Cir. 1989).
Weetman v.
Here Dr. Gritzka’s
opinion was solicited after Dr. McBarron opined Plaintiff did not
meet Listing 1.04 during the relevant period.
On this record the Court finds the ALJ did not err when he
found Plaintiff’s impairment was not equivalent to Listing 1.04
because the ALJ provided specific reasons supported by
substantial evidence in the record for doing so.
V.
The ALJ did not err at Step Five.
Plaintiff asserts the ALJ erred at Step Five when he relied
on VE “testimony that diverged from the Dictionary of
Occupational Titles without explanation.”
Specifically,
Plaintiff asserts
Plaintiff cannot perform the prolonged sitting
required of sedentary jobs. . . . Most unskilled
occupations do not allow the worker to change
positions at will. A worker who cannot sit for
prolonged periods cannot perform the sitting
necessary for sedentary work and a worker who
cannot be on his feet for prolonged periods cannot
perform the standing/walking necessary for the
performance of light jobs. SSR 83-12.2. The
sedentary job identified by the ALJ to deny the
claim in step five is not described by the DOT as
allowing the worker to alternate out of the seated
position after one hour. Nor are the light jobs
identified by the ALJ described by the DOT as
17 - OPINION AND ORDER
allowing the worker to walk half a block and stand
only 30 minutes.
Pl.’s Opening Br. at 13.
At the October 2013 hearing the ALJ asked the VE a
hypothetical that included all of the limitations that the ALJ
set out in Plaintiff’s RFC.
The ALJ also asked the VE to advise
him whether any of the positions identified by the VE were
inconsistent with the DOT.
The VE identified the sedentary
position of call operator and two light positions of cashier and
rental clerk and did not indicate that any of those positions
were inconsistent with the DOT.
Tr. 1112-13.
When a VE’s testimony deviates from the DOT, “the ALJ must
first determine whether a conflict exists” and then “determine
whether the vocational expert’s explanation for the conflict is
reasonable and whether a basis exists for relying on the expert”
rather than the DOT.
(9th Cir. 2007).
Massachi v. Astrue, 486 F.3d 1149, 1153
Reasonable explanations for conflicts between
the DOT and VE testimony include the reality that “[e]ach
occupation [in the DOT] represents numerous jobs,” VEs may have
additional information about particular job requirements from
other publications or from the VE’s professional experience, and
“[t]he DOT lists maximum requirements of occupations as generally
performed, not the range of requirements of a particular job as
it is performed in specific settings.”
SSR 00-49, 2000 WL
1898704, at *2-*3 (Dec. 4, 2000)(emphasis added).
18 - OPINION AND ORDER
See also
Massachi, 486 F.3d at 1153 n.17.
Here Plaintiff noted SSR 83-12 has found “[u]nskilled types
of jobs are particularly structured so that a person cannot
ordinarily sit or stand at will.”
The record, however, does not
reflect Plaintiff needed to stand at will.
Instead the record
reflects and the ALJ included in his hypothetical to the VE that
Plaintiff would only need to change positions after sitting for
an hour.
In addition, the DOT explanations for the light jobs
identified by the VE are not inconsistent with Plaintiff’s RFC.
For example, the DOT describes the cashier position as follows:
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.
DOT 211.462-010 (cashier).
On this record the Court does not find any basis to conclude
that the VE’s testimony contradicts the DOT, and, therefore, the
ALJ did not err when he relied on the testimony of the VE in
finding Plaintiff could perform other work in the national
economy during the closed period.
CONCLUSION
For these reasons, the Court AFFIRMS the decision of the
19 - OPINION AND ORDER
Commissioner and DISMISSES this matter.
IT IS SO ORDERED.
DATED this 7th day of July, 2015.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
20 - OPINION AND ORDER
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