Shahean A. Juarez v. Kilolo Kijakazi

• Court: District Court, C.D. California
• Decided: February 3, 2023
• Docket: 5:21-cv-01800
• Status: Unknown

Opinion

Case 5:21-cv-01800-GJS Document 18 Filed 02/03/23 Page 1 of 7 Page ID #:1427

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SHAHEAN J.,1 11 Case No. 5:21-cv-01800-GJS Plaintiff 12 v. 13 MEMORANDUM OPINION AND KILOLO KIJAKAZI, Acting ORDER 14 Commissioner of Social Security, 15 Defendant. 16

17 18 I. PROCEDURAL HISTORY 19 Plaintiff Shahean J. (“Plaintiff”) filed a complaint seeking review of the 20 decision of the Commissioner of Social Security denying her applications for 21 Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). 22 The parties filed consents to proceed before the undersigned United States 23 Magistrate Judge [Dkts. 11 and 12] and briefs [Dkts. 16 (“Pl. Br.”) & 17 (“Def. 24 Br.”)] addressing disputed issues in the case. The matter is now ready for decision. 25 For the reasons set forth below, the Court finds that this matter should be affirmed. 26 27 1 In the interest of privacy, this Order uses only the first name and the initial of 28 the last name of the non-governmental party in this case. Case 5:21-cv-01800-GJS Document 18 Filed 02/03/23 Page 2 of 7 Page ID #:1428

1 II. ADMINISTRATIVE DECISION UNDER REVIEW 2 Plaintiff filed applications for DIB and SSI in January 2019, alleging 3 disability beginning August 15, 2003. [Dkt. 15, Administrative Record (“AR”) 15, 4 218-29, 232-37.] Plaintiff’s applications were denied at the initial level of review 5 and on reconsideration. [AR 15, 144-48, 150-54, 156-60.] A telephone hearing was 6 held before Administrative Law Judge Elizabeth Stevens Bentley (“the ALJ”) on 7 December 15, 2020. [AR 15, 32-49.] 8 On January 20, 2021, the ALJ issued an unfavorable decision applying the 9 five-step sequential evaluation process for assessing disability. [AR 15-26.] See 20 10 C.F.R. §§ 404.1520(b)-(g)(1), 416.920(b)-(g)(1). At step one, the ALJ determined 11 that Plaintiff engaged in substantial gainful activity from January 2005 through 12 December 2005 but had not engaged in substantial gainful activity from the alleged 13 onset date of August 15, 2003 through December 31, 2004, and from January 1, 14 2006 through the date of the decision, January 20, 2021. [AR 17-18.] At step two, 15 the ALJ determined that Plaintiff has the following severe impairments: epilepsy 16 and bipolar disorder. [AR 18.] At step three, the ALJ determined that Plaintiff does 17 not have an impairment or combination of impairments that meets or medically 18 equals the severity of one of the impairments listed in Appendix I of the 19 Regulations. [AR 19.] See 20 C.F.R. Pt. 404, Subpt. P, App. 1. The ALJ found that 20 Plaintiff has the residual functional capacity (“RFC”) to perform a full range of 21 work at all exertional levels and is able to perform simple and routine tasks, but 22 Plaintiff is not able to climb ladders, ropes, or scaffolds, must avoid concentrated 23 exposure to hazards, is limited to occasional coworker contact, and must have no 24 public contact. [AR 21.] At step four, the ALJ determined that Plaintiff has no past 25 relevant work. [AR 25.] At step five, based on the testimony of the vocational 26 expert (“VE”), the ALJ found that Plaintiff could perform other work that exists in 27 significant numbers in the national economy, including representative occupations 28 such as Hand Packager and Machine Feeder. [AR 25-26.] Therefore, the ALJ 2 Case 5:21-cv-01800-GJS Document 18 Filed 02/03/23 Page 3 of 7 Page ID #:1429

1 concluded that Plaintiff has not been disabled from August 15, 2003, through the 2 date of the decision. [AR 26.] 3 The Appeals Council denied review of the ALJ’s decision on August 27, 4 2021. [AR 1-6.] This action followed. 5 Plaintiff contends that the ALJ’s step five determination that Plaintiff can 6 perform the representative occupations of Hand Packager and Machine Feeder is 7 inconsistent with Plaintiff’s RFC. [Pl. Br. at 1-8.] 8 The Commissioner asserts that the ALJ’s decision is supported by substantial 9 evidence and should be affirmed. [Def. Br. at 1-7.] 10 11 III. GOVERNING STANDARD 12 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 13 determine if: (1) the Commissioner’s findings are supported by substantial 14 evidence; and (2) the Commissioner used correct legal standards. See Carmickle v. 15 Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Brewes v. Comm’r 16 Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). “Substantial evidence … is 17 ‘more than a mere scintilla’ … [i]t means – and only means – ‘such relevant 18 evidence as a reasonable mind might accept as adequate to support a conclusion.’” 19 Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (citations omitted); Gutierrez v. 20 Comm’r of Soc. Sec., 740 F.3d 519, 522 (9th Cir. 2014) (“[s]ubstantial evidence is 21 more than a mere scintilla but less than a preponderance”) (internal quotation marks 22 and citation omitted). 23 The Court will uphold the Commissioner’s decision when “‘the evidence is 24 susceptible to more than one rational interpretation.’” Burch v. Barnhart, 400 F.3d 25 676, 681 (9th Cir. 2005) (quoting Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 26 1989)). However, the Court may review only the reasons stated by the ALJ in the 27 decision “and may not affirm the ALJ on a ground upon which he did not rely.” 28 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court will not reverse the 3 Case 5:21-cv-01800-GJS Document 18 Filed 02/03/23 Page 4 of 7 Page ID #:1430

1 Commissioner’s decision if it is based on harmless error, which exists if the error is 2 “inconsequential to the ultimate nondisability determination, or that, despite the 3 error, the agency’s path may reasonably be discerned.” Brown-Hunter v. Colvin, 4 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations omitted). 5 IV. DISCUSSION 6 Plaintiff contends there is an inconsistency between Plaintiff’s RFC limitation 7 that she should “avoid concentrated exposure to hazards” and the ALJ’s finding that 8 Plaintiff can perform the jobs described in the Dictionary of Occupational Titles 9 (“DOT”) as Hand Packager2 and Machine Feeder,3 because both jobs involve 10 11 12 2 The DOT description for the job of Hand Packager states:

13 Packages materials and products manually, performing 14 any combination of [the] following duties: Cleans packaging containers. Lines and pads crates and 15 assembles cartons. Obtains and sorts product. Wraps protective material around product. Starts, stops, and 16 regulates speed of conveyor. Inserts or pours product into containers or fills containers from spout or chute. Weighs 17 containers and adjusts quantity. Nails, glues, or closes and 18 seals containers. Labels containers, container tags, or products. Sorts bundles or filled containers. Packs special 19 arrangements or selections of product. Inspects materials, products, and containers at each step of packaging process. 20 Records information, such as weight, time, and date 21 packaged. DOT No. 920.587-018 (emphasis added). 22

23 3 The DOT description for the job of Machine Feeder states:

24 Feeds or removes metal, plastic, or other stock and material from automatic fabricating machines: Places 25 stock into hoppers, onto conveyors of self-centering 26 machine bed, or lifts coils of sheet metal or wire onto feedrack. Removes stock from conveyor and piles it into 27 boxes, truck, or on feed conveyor for next operation. May push dual control buttons to activate machine. May work 28 in pairs to feed or remove pieces from machine. May 4 Case 5:21-cv-01800-GJS Document 18 Filed 02/03/23 Page 5 of 7 Page ID #:1431

1 “exposure to hazards such as dangerous/moving machinery.” [Pl. Br. at 3-5.] 2 Specifically, Plaintiff contends her need to avoid concentrated exposure to hazards 3 precludes her from performing work as a Hand Packager, because the DOT lists that 4 position as involving use of a “conveyor belt,” which is “a type of dangerous 5 moving machine.” [Pl. Br. at 4.] Similarly, Plaintiff contends that the Machine 6 Feeder job is precluded because it involves “feed[ing] or remov[ing] items/material 7 from automatic fabricating machines as well as working with a conveyor belt.” [Pl. 8 Br. at 5.] A reversal or remand is not warranted on these bases. 9 “In making disability determinations, the Social Security Administration 10 relies primarily on the [DOT] for information about the requirements of work in the 11 national economy.” Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007) 12 (internal quotation marks omitted); Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. 13 2001) (“[T]he best source for how a job is generally performed is usually the 14 [DOT].”). When a VE’s testimony regarding the requirements of a particular job 15 contradicts the DOT, the record must contain “persuasive evidence to support the 16 deviation.” Massachi, 486 F.3d at 1153 (internal quotation marks and citation 17 omitted); see also Social Security Ruling (“SSR”)4 00-4P, 2000 WL 1898704, at *4 18 (2000)) (“When vocational evidence provided by a VE [ ] is not consistent with 19 information in the DOT, the [ALJ] must resolve [the] conflict before relying on the 20 VE [ ] evidence to support a determination or decision that the individual is or is not 21 22 thread sheet metal or wire through machine. 23 DOT No. 699-686-010 (emphasis added). 24 4 The Commissioner issues SSRs “to clarify the [Social Security] Act’s 25 implementing regulations and the agency’s policies. SSRs are binding on all 26 components of the [Social Security Administration]. SSRs do not have the force of law. However, because they represent the Commissioner’s interpretation of the 27 agency’s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations.” Holohan v. Massanari, 246 28 F.3d 1195, 1202 n.1 (9th Cir. 2001) (internal citations omitted). 5 Case 5:21-cv-01800-GJS Document 18 Filed 02/03/23 Page 6 of 7 Page ID #:1432

1 disabled.”). 2 Here, no apparent conflict exists between the VE’s testimony and the DOT 3 job descriptions for the Hand Packager and Machine Feeder jobs, as they relate to 4 Plaintiff’s need to avoid concentrated exposure to hazards. Social Security Ruling 5 96-9p defines “hazards,” for purposes of the DOT, to include “moving mechanical 6 parts of equipment, tools, or machinery; electrical shock; working in high, exposed 7 places; exposure to radiation; working with explosives; and exposure to toxic, 8 caustic chemicals.” SSR 96-9P, 1996 WL 374185, at *9 (Jul. 2, 1996) (emphasis 9 added); see also French v. Berryhill, No. EDCV 17-0566-KS, 2018 WL 1322106, at 10 *8 (C.D. Cal. Mar. 13, 2018) (referring to SSR 96-9P as “the [Social Security] 11 Commissioner’s own relevant definition of ‘hazards’”); Novoa v. Colvin, No. CV 12 13-00219-MAN, 2014 WL 3854369, at *7-8 (C.D. Cal. Aug. 6, 2014) (relying on 13 the SSR 96-9p definition of “hazards,” as the “ALJ did not expand upon his 14 definition of ‘hazard’ either in the RFC or in the hypothetical to the VE”). 15 Plaintiff’s contention that the Hand Packager and Machine Feeder jobs involve 16 exposure to hazardous machinery is belied by the DOT job descriptions, which 17 indicate that work in the proximity of moving mechanical parts is not required. See 18 DOT Nos. 699-686-010, 920.587-018; see also SSR 96-9P, 1996 WL 374185, at *9. 19 Specifically, the job descriptions for Hand Packager and Machine Feeder state that 20 moving mechanical parts are “Not Present,” meaning the ”[a]ctivity or condition 21 does not exist.” DOT Nos. 699-686-010, 920.587-018. Because these jobs do not 22 involve exposure to the hazards of working with “moving mechanical parts of … 23 machinery,” they do not involve exposure to hazardous machinery and are not in 24 excess of Plaintiff’s RFC. SSR 96-9P, 1996 WL 374185, at *9; see also Hernandez 25 v. Colvin, 2016 WL 805252, at *8 (C.D. Cal. Feb. 29, 2016) (rejecting argument that 26 the occupation of hand packager was inconsistent with claimant’s RFC precluding 27 work with dangerous machinery because the DOT provides that the hazard of 28 “[m]oving [m]echanical [p]arts” is not present and does not exist); Anderson v. 6 Cage 5:21-cv-01800-GJS Documenti18 Filed 02/03/23 Page 7of7 Page ID #:1433

1 || Colvin, 2015 WL 1005407, at *5 (C.D. Cal. Mar. 6, 2015) (agreeing that based on 2 || the DOT description, the hand packager occupation does not involve work around 3 || hazardous machinery); Ramos v. Kijakazi, No. 20-23478-CIV, 2021 WL 5746358, 4 || at *4-6 (S.D. Fla. Nov. 9, 2021), report and recommendation adopted sub nom. 5 || Ramos v. Kijakazi, No. 20-CV-23478, 2021 WL 5743332 (S.D. Fla. Dec. 2, 2021) 6 || (finding that RFC precluding work with “hazards” did not conflict with VE’s 7 || testimony that claimant could perform work as a machine feeder). Moreover, none 8 || of the other hazards described in SSR 96-9p (i.e., electric shock, high exposed 9 || places, radiation, explosives, and toxic caustic chemicals), are included in the job 10 || descriptions for Hand Packager or Machine Feeder. See DOT Nos. 699-686-010, 11 || 920.587-018. Thus, the ALJ did not err in crediting the VE’s testimony, as it did not 12 || present an actual or apparent conflict with the DOT. 13 Accordingly, the ALJ’s step five determination is supported by substantial 14 || evidence. 15 16 Vv. CONCLUSION 17 For all of the foregoing reasons, IT IS ORDERED that the decision of the 18 || Commissioner finding Plaintiff not disabled is AFFIRMED 19 20 IT IS SO ORDERED. 21 22 || DATED: February 3, 2023 Ua 23 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28