Shannon C. Strnad v. Nancy A. Berryhill

• Court: District Court, C.D. California
• Decided: April 13, 2020
• Docket: 5:19-cv-00874
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SHANNON C. S., ) Case No. ED CV 19-874-PJW ) 11 Plaintiff, ) ) MEMORANDUM OPINION AND ORDER 12 v. ) ) 13 ANDREW M. SAUL, ) COMMISSIONER OF THE ) 14 SOCIAL SECURITY ADMINISTRATION, ) ) 15 Defendant. ) ) 16 17 I. 18 INTRODUCTION 19 Plaintiff appeals a decision by Defendant Social Security 20 Administration (“the Agency”), denying her application for 21 Supplemental Security Income (“SSI”). She contends that the 22 Administrative Law Judge (“ALJ”) erred when he determined that she 23 could perform the jobs of marker and cleaner. For the reasons 24 explained below, the Court concludes that the ALJ’s finding that 25 Plaintiff could perform the job of marker is supported by substantial 26 evidence and, therefore, the ALJ’s decision is affirmed.1 27 28 1 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Andrew M. Saul, Commissioner of the Social Security (continued...) 1 II. 2 SUMMARY OF PROCEEDINGS 3 In July 2013, Plaintiff was found to be disabled due to affective 4 and anxiety disorders. (Administrative Record (“AR”) 112-121.) In 5 February 2017, the Agency conducted a continuing disability review and 6 determined that Plaintiff was no longer disabled. (AR 141-148, 177- 7 180.) Plaintiff requested and was granted a hearing before an ALJ. 8 (AR 181-197.) In May 2018, Plaintiff appeared with counsel and 9 testified at the hearing. (AR 46-47, 67-78.) That same month, the 10 ALJ found that Plaintiff was no longer disabled. (AR 10-24.) 11 Plaintiff appealed to the Appeals Council, which denied review. (AR 12 1-3.) She then filed the instant action. 13 III. 14 ANALYSIS 15 The ALJ determined that Plaintiff could not perform fast-paced 16 work. (AR at 19.) Despite this limitation, he found that she could 17 perform the job of marker (i.e., someone who attaches price tags to 18 products in a store). (AR 24, 78-82.) Plaintiff argues that the ALJ 19 erred in doing so because the marker job requires frequent handling 20 and reaching as well as “repetitive or short-cycle work,” both of 21 which Plaintiff equates with fast-paced work. (Joint Stip. at 8; 22 Dictionary of Occupational Titles (“DOT”) No. 209.587-034.) This 23 argument is rejected. There is nothing in the DOT that defines 24 frequent handling and reaching or “repetitive or short-cycle work” as 25 fast-paced. See DOT No. 209.587-034. Nor has Plaintiff cited to any 26 27 1 (...continued) 28 Administration, is substituted in as the defendant. 2 1 case law to support her argument that the requirements are 2 interchangeable with fast-paced work. 3 Plaintiff looks for support in the Social Security 4 Administration’s Program Operations Manual System (“POMS”). As she 5 points out, POMS specifies that unskilled work, like the job of 6 marker, is to be performed “at a consistent pace without an 7 unreasonable number and length of rest periods.” (Joint Stip. at 8 8-9.) In Plaintiff’s view, this description translates into fast- 9 paced work. Here, again, the Court disagrees. To begin with, POMS is 10 not binding on the ALJ or the Court. Shaibi v. Berryhill, 870 F.3d 11 874, 880 (9th Cir. 2017) (citing Lockwood v. Comm'r Soc. Sec. Admin., 12 616 F.3d 1068, 1073 (9th Cir. 2010)). The DOT is the presumptive 13 authority and it does not describe the job of marker as fast-paced. 14 See Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995) (finding 15 DOT is the rebuttable presumptive authority on job classifications). 16 Second, even assuming that POMS was controlling, it would not mandate 17 reversal here because the POMS section cited by Plaintiff describes 18 the mental abilities needed for the job, not the physical abilities, 19 which is Plaintiff’s focus in the case at bar. POMS DI 20 25020.010(B)(3)(I). 21 Plaintiff argues that the Court should rely on its common 22 experience to conclude that most people would consider the marker job 23 fast-paced. (Joint Stip. at 9.) The Court does not find this 24 argument persuasive. The Court has had limited experience with 25 markers and has no idea what most people would think about the pace of 26 the work. In the absence of such contradictory experience, the Court 27 will uphold the ALJ’s reliance on the DOT and the vocational expert to 28 conclude that Plaintiff could perform the work of a marker. Further, 3 1 |} because there are 300,000 marker jobs in the national economy, the ALJ 2 warranted in concluding that Plaintiff could find work. Gutierrez Comm’r of Soc. Sec., 740 F.3d 519, 528-29 (9th Cir. 2014) (holding 25,000 jobs across several regions is enough to uphold ALJ’s decision that there were significant number of jobs in national economy). 6 Plaintiff contends that the ALJ also erred in concluding that she 7 |} could work as a cleaner because that job is fast-paced and requires 8 |} contact with the public. (Joint Stip. at 7-9; AR at 19, 24.) Though Court is inclined to agree with Plaintiff that the cleaner job 10 | reguires public contact, it need not decide whether the ALJ erred in 11 concluding that Plaintiff could perform this job because, even 12 assuming that he did, there are enough marker jobs in the national 13 |} economy to support his conclusion that Plaintiff was not disabled. 14 | See Gray v. Comm'r of Soc. Sec., 365 Fed. App'x 60, 63 (9th Cir. 2010) 15 | (affirming ALJ’s decision where claimant could perform only one of 16 | three jobs identified by the ALJ but significant number of jobs in 17 | national economy for that one job supported ALJ’s decision that 18 || claimant was not disabled). As such, the ALJ’s decision is affirmed. 19 IV. 20 CONCLUSION 21 For these reasons, the Agency’s decision is affirmed and the case 22 is dismissed with prejudice. 23 IT IS SO ORDERED. 24 DATED: April 13, 2020. flexed 9 Ur%o6 . 26 PATRICK J. WALSH 27 UNITED STATES MAGISTRATE JUDGE 28 |] s:\Paw\cases-Social Security\SHANNON S, ED 19-874\Memo Opinion and Order.wpd