Jeremy Joseph Dureso v. Andrew Saul

• Court: District Court, C.D. California
• Decided: October 1, 2020
• Docket: 5:19-cv-01899
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION 10 11 JEREMY J.D.1, Case No. CV 19-1899-AS 12 Plaintiff, MEMORANDUM OPINION 13 v.

14 ANDREW M. SAUL, Commissioner of Social Security, 15 Defendant. 16

18 For the reasons discussed below, IT IS HEREBY ORDERED that, 19 pursuant to Sentence Four of 42 U.S.C. § 405(g), the Commissioner’s 20 decision is affirmed. 21

23 24

25 1 Plaintiff’s name is partially redacted in accordance with 26 Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of 27 the Judicial Conference of the United States. 28 1 PROCEEDINGS 2 3 On October 3, 2019, Plaintiff filed a Complaint seeking review 4 of the denial of his application for supplemental security income 5 (“SSI”) by the Commissioner of Social Security (“Commissioner” or 6 “Agency”). (Dkt. No. 1). The parties have consented to proceed 7 before the undersigned United States Magistrate Judge. (Dkt. Nos. 8 11, 12, 13). On February 26, 2020, Defendant filed an Answer along 9 with the Administrative Record (“AR”). (Dkt. Nos. 15, 16). The 10 parties filed a Joint Stipulation (“Joint Stip.”) on July 16, 2020, 11 setting forth their respective positions regarding Plaintiff’s 12 claims. (Dkt. No. 20). 13 14 The Court has taken this matter under submission without oral 15 argument. See C.D. Cal. C. R. 7-15. 16 17 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 18 19 On August 18, 2015, Plaintiff filed an application for SSI, 20 alleging a disability onset date of November 18, 2014. (AR 174). 21 The Commissioner denied Plaintiff’s application initially and on 22 reconsideration. (AR 102-116). On August 10, 2018, Plaintiff, 23 represented by counsel, testified at a hearing before 24 Administrative Law Judge (“ALJ”) Joel Tracy. (AR 35-67). The ALJ 25 also heard testimony from Gregory S. Jones, a vocational expert 26 (“VE”). (AR 62-65). On September 4, 2018, the ALJ issued a 27 decision denying Plaintiff’s application. (AR 15-28). 28 1 Applying the five-step sequential process, the ALJ found at 2 step one that Plaintiff has not engaged in substantial gainful 3 activity since August 21, 2015, the application date. (AR 17). 4 At step two, the ALJ found that Plaintiff had the following severe 5 impairments: major depressive disorder, recurrent and moderate; 6 borderline intellectual functioning disorder; panic disorder; 7 learning disorder; bilateral flat feet; diabetic neuropathy; 8 diabetes, Type 2; and obesity.2 Id. At step three, the ALJ 9 determined that Plaintiff does not have an impairment or 10 combination of impairments that meet or medically equal the 11 severity of any of the listings enumerated in the regulations.3 12 (AR 18-20). 13 14 The ALJ then assessed Plaintiff’s residual functional capacity 15 (“RFC”)4 and concluded that he has the capacity to perform less 16 17

18 2 The ALJ found Plaintiff’s hypertension, hyperlipidemia, and arthritis of the lower back and left knee to be slight 19 abnormalities that did not affect Plaintiff more than minimally and are therefore nonsevere. (AR 17). The ALJ also found that 20 Plaintiff’s alleged intellectual disorder was not supported by evidence and is therefore not a medically determinable impairment. 21 (AR 18). 22 3 Specifically, the ALJ considered whether Plaintiff meets 23 the criteria of Listing 12.04 (depressive and bipolar related disorders), 12.05 (intellectual disorder), 12.06 (anxiety and 24 obsessive-compulsive disorders), and 12.11 (neurodevelopmental disorders). (AR 18-20). Although obesity and diabetes mellitus 25 are not listed impairments, the ALJ also considered their effects singly or in combination with other impairments. (AR 18). 26 27 4 A Residual Functional Capacity (“RFC”) is what a claimant can still do despite existing exertional and nonexertional 28 limitations. See 20 C.F.R. § 404.1545(a)(1). 1 than the full range of medium work, as defined in 20 C.F.R. 2 § 416.967(c).5 (AR 20). Specifically, the ALJ found that: 3 4 [Plaintiff] is capable of . . . lifting and/or carrying 5 50 pounds occasionally and 25 pounds frequently; sitting 6 for six hours, each, out of an eight-hour workday; 7 standing and/or walking for up to four hours out of an 8 eight-hour workday, with normal breaks; frequent pushing 9 and pulling with the bilateral upper extremities and 10 bilateral lower extremities; frequent handling and 11 fingering, bilaterally; occasionally balancing, 12 stooping, crouching, kneeling, and crawling; 13 occasionally climbing ramps and stairs but never climbing 14 ladders, ropes, and scaffolds, working at unprotected 15 heights or around dangerous machinery with unprotected 16 moving parts; remembering and carrying out simple 17 instructions and making simple work related decisions; 18 sustaining an ordinary routine without special 19 supervision; tolerating occasional interactions with 20 coworkers and supervisors and no interactions with the 21 public; and tolerating occasional changes in work 22 setting. 23 24 (AR 20-21). 25

26 5 “Medium work involves lifting no more than 50 pounds at 27 a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that he or 28 she can also do sedentary and light work.” 20 C.F.R. § 416.967(c). 1 At step four, the ALJ found that Plaintiff does not have any 2 past relevant work. (AR 26). Based on Plaintiff’s RFC, age, 3 education, work experience, and the VE’s testimony, the ALJ 4 determined at step five that there are jobs that exist in 5 significant numbers in the national economy that Plaintiff can 6 perform, including electronics worker, bench assembler, and 7 production assembler. (AR 26-27). Accordingly, the ALJ found that 8 Plaintiff has not been under a disability, as defined in the Social 9 Security Act, from August 21, 2015, the application date, through 10 September 4, 2018, the date of the ALJ’ s decision. (AR 27). 11 12 On August 14, 2019, the Appeals Council denied Plaintiff’s 13 request for review. (AR 1-6). Plaintiff now seeks judicial review 14 of the ALJ’s decision, which stands as the final decision of the 15 Commissioner. 42 U.S.C. §§ 405(g), 1383(c). 16 17 STANDARD OF REVIEW 18 19 This Court reviews the Commissioner’s decision to determine 20 if it is free of legal error and supported by substantial evidence. 21 See Brewes v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012). 22 “Substantial evidence” is more than a mere scintilla, but less than 23 a preponderance. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 24 2014). To determine whether substantial evidence supports a 25 finding, “a court must consider the record as a whole, weighing 26 both evidence that supports and evidence that detracts from the 27 [Commissioner’s] conclusion.” Aukland v. Massanari, 257 F.3d 1033, 28 1035 (9th Cir. 2001) (internal quotation omitted). As a result, 1 “[i]f the evidence can support either affirming or reversing the 2 ALJ’s conclusion, [a court] may not substitute [its] judgment for 3 that of the ALJ.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 4 (9th Cir. 2006). 5 6 DISCUSSION 7 8 Plaintiff’s sole claim is that, at step five, the ALJ 9 improperly relied on the VE’s testimony in finding that Plaintiff 10 could perform alternative work, without resolving an apparent 11 conflict between the VE’s testimony and the Dictionary of 12 Occupational Titles (“DOT”). (Joint Stip. at 4-10, 13-15). After 13 consideration of the parties’ arguments and the record as a whole, 14 the Court finds that the ALJ did not err. 15 16 A. Legal Standard for ALJ’s Assessment at Step Five 17 18 At step five of the sequential evaluation process, “the 19 Commissioner has the burden to identify specific jobs existing in 20 substantial numbers in the national economy that a claimant can 21 perform despite his identified limitations.” Zavalin v. Colvin, 22 778 F.3d 842, 845 (9th Cir. 2015) (citation omitted). In making 23 this finding, the ALJ determines “whether, given the claimant’s 24 RFC, age, education, and work experience, he actually can find some 25 work in the national economy.” Id. at 846 (citation omitted); see 26 also 20 C.F.R. § 404.1520(g) (stating that “we will consider [your 27 RFC] together with your vocational factors (your age, education, 28 and work experience) to determine if you can make an adjustment to 1 other work”). The Commissioner may meet this burden by adopting 2 the testimony of a VE or by reference to the Grids. Osenbrock v. 3 Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). “In making this 4 determination, the ALJ relies on the DOT, which is the [Agency’s] 5 ‘primary source of reliable job information’ regarding jobs that 6 exist in the national economy.” Zavalin, 778 F.3d at 845–46 (citing 7 Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990)); see 20 8 C.F.R. § 404.1566(d)(1) (noting that the Agency “will take 9 administrative notice of reliable job information available from 10 various governmental and other publications,” including the DOT); 11 SSR 00-4p, at *2 (“In making disability determinations, [the Agency 12 relies] primarily on the DOT . . . for information about the 13 requirements of work in the national economy.”). 14 15 The VE’s occupational testimony should be consistent with the 16 DOT. SSR 00-4p, at *2. “When a VE . . . provides evidence about 17 the requirements of a job or occupation, the [ALJ] has an 18 affirmative responsibility to ask about any possible conflict 19 between that VE . . . evidence and information provided in the 20 DOT.” Id. at *4. “For a difference between [the VE’s] testimony 21 and the [DOT’s] listings to be fairly characterized as a conflict, 22 it must be obvious or apparent.” Gutierrez v. Colvin, 844 F.3d 23 804, 808 (9th Cir. 2016). 24 25 When there is an apparent conflict between the VE’s testimony 26 and the DOT, “[n]either the DOT nor the VE . . . evidence 27 automatically ‘trumps.’” SSR 00-4p, at *2. In such a situation, 28 the Commissioner has an affirmative duty to resolve the conflict - 1 - for example, by eliciting a reasonable explanation from the VE - 2 - before relying on the affected portion of the VE’s testimony in 3 support of a disability determination. Id.; see Zavalin, 778 F.3d 4 at 846; Massachi v. Astrue, 486 F.3d 1149, 1153-54 (9th Cir. 2007). 5 “The ALJ’s failure to resolve an apparent inconsistency may leave 6 [the court] with a gap in the record that precludes [the court] 7 from determining whether the ALJ’s decision is supported by 8 substantial evidence.” Zavalin, 778 F.3d at 846. 9 10 B. The ALJ’s Step Five Determination was Supported by Substantial 11 Evidence 12 13 At the administrative hearing, the ALJ presented a 14 hypothetical to the VE based on the ALJ’s ultimate RFC assessment, 15 including the limitation to standing/walking for up to four hours 16 in an eight-hour workday. (AR 62-63). The VE testified that a 17 hypothetical individual with that RFC could perform several jobs 18 existing in significant numbers in the national economy — 19 specifically, electronics worker (DOT 726.687-010), bench 20 assembler (DOT 706.684-022), and production assembler (DOT 706.687- 21 010), which are all light, unskilled positions.6 (AR 64). The VE 22 stated that his testimony was consistent with the DOT. (AR 65). 23 The ALJ relied on this testimony in deciding that Plaintiff can 24 perform alternative work at step five. (AR 27). 25

26 6 The ALJ described the alternative jobs as medium, 27 unskilled positions. (AR 27). In fact, the VE testified that the jobs were light, unskilled positions, which is also reflected in 28 the DOT, as discussed below. (AR 64). 1 Here, Plaintiff contends an apparent conflict exists between 2 the DOT and the VE’s testimony. (Joint Stip. at 7-8). The 3 alternative jobs identified by the VE are categorized in the DOT 4 as light work. See DOT 726.687-010 (electronics worker); DOT 5 706.684-022 (bench assembler); DOT 706.687-010 (production 6 assembler). Plaintiff points out that, under Social Security 7 Ruling 83-10, the full range of light work requires standing or 8 walking for a total of approximately six hours out of an eight- 9 hour workday. SSR 83-10, at *6. The RFC, however, limits Plaintiff 10 to only standing/walking for up to four hours out of an eight-hour 11 workday. (AR 20). Because the Social Security Rulings indicate 12 that the standing/walking requirements for light work exceed the 13 RFC’s standing/walking limitations, Plaintiff contends he could 14 not perform any of the light work identified by the VE, which the 15 ALJ adopted without eliciting a reasonable explanation for the VE’s 16 deviation from the DOT. 17 18 However, as Defendant correctly points out, neither the Social 19 Security Rulings nor the DOT indicate that light work always 20 requires up to six hours of standing/walking. (Joint Stip. at 12). 21 Specifically, Social Security Ruling 83-10 also finds that a job 22 is in the light work category “when it involves sitting most of 23 the time but with some pushing or pulling of arm-hand or leg-foot 24 controls.” SSR 83-10, at *5. And, significantly, the DOT 25 categorizes a job as light work “(1) when it requires walking or 26 standing to a significant degree; or (2) when it requires sitting 27 most of the time but entails pushing and/or pulling of arm or leg 28 controls; and/or (3) when the job requires working at a production 1 rate pace entailing the constant pushing and/or pulling of 2 materials even though the weight of those materials is negligible.” 3 See DOT 726.687-010 (electronics worker); DOT 706.684-022 (bench 4 assembler); DOT 706.687-010 (production assembler). There is 5 nothing in the DOT descriptions for the alternative work identified 6 by the VE and adopted by the ALJ that indicate the level of 7 standing/walking required to perform the jobs. See id. Thus, the 8 alternative jobs could be categorized as light work because of 9 pushing and/or pulling requirements, not necessarily because of 10 standing/walking requirements. 11 12 Because the DOT does not specify the standing/walking 13 requirements of the alternative jobs, the Court cannot find that 14 there is an obvious or apparent conflict between the DOT and the 15 VE’s testimony. See, e.g., Devore v. Comm’r of Soc. Sec., 2015 WL 16 3756328, *4 (E.D. Cal. June 16, 2015) (“the limitation of four 17 hours standing/walking is not necessarily inconsistent with the 18 ‘light work’ jobs identified by the DOT”); Lewis v. Berryhill, 2017 19 WL 3498625, at *5 (C.D. Cal. Aug. 15, 2017) (“there was no conflict” 20 between a limitation to standing/walking for up to four hours and 21 the DOT description for the light jobs of electronics worker and 22 bench assembler); Saiz v. Astrue, 2012 WL 1155946, at *4 (C.D. Cal. 23 Apr. 6, 2012) (“not all light work jobs require standing or walking” 24 for six hours out of an eight-hour workday, and therefore there 25 was no conflict between an RFC precluding a plaintiff from standing 26 for more than four hours and the light work of bench assembler). 27 As such, the ALJ reasonably adopted the VE’s testimony in finding 28 that Plaintiff could perform alternative work. 1 Accordingly, because substantial evidence supports the ALJ’s 2 finding at step five, no remand is required. 3 4 CONCLUSION 5 6 For the foregoing reasons, the decision of the Commissioner 7 is AFFIRMED. 8 LET JUDGMENT BE ENTERED ACCORDINGLY. 9

11 Dated: October 1, 2020 12

13 ______________/s/_____________ ALKA SAGAR 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28