Theodore Moody v. Andrew Saul

• Court: District Court, C.D. California
• Decided: June 28, 2021
• Docket: 2:20-cv-04382
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 THEODORE M.,1 ) Case No. CV 20-4382-JPR 11 ) Plaintiff, ) 12 ) MEMORANDUM DECISION AND ORDER v. ) AFFIRMING COMMISSIONER 13 ) ANDREW SAUL, Commissioner ) 14 of Social Security, ) ) 15 Defendant. ) ) 16 ) 17 I. PROCEEDINGS 18 Plaintiff seeks review of the Commissioner’s final decision 19 denying his application for Social Security supplemental security 20 income benefits (“SSI”). The matter is before the Court on the 21 parties’ Joint Stipulation, filed April 2, 2021, which the Court 22 has taken under submission without oral argument. For the 23 reasons discussed below, the Commissioner’s decision is affirmed. 24 25 26 1 Plaintiff’s name is partially redacted in line with 27 Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case 28 Management of the Judicial Conference of the United States. 1 1 II. BACKGROUND 2 Plaintiff was born in 1972. (Administrative Record (“AR”) 3 101.) He completed some high school (AR 76, 239)2 and worked as 4 a telephone solicitor (AR 78-80). 5 In September 2016, he applied for SSI. (AR 71, 113, 214- 6 25.) The Commissioner denied his claim (AR 101-13) and rejected 7 his request for reconsideration (AR 115-27). He requested a 8 hearing before an administrative law judge. (AR 145-48.) One 9 was held on December 14, 2018, at which Plaintiff, who was 10 represented by counsel, testified, as did a vocational expert. 11 (See AR 67-100.) On April 8, 2019, the ALJ found that he was not 12 disabled and could perform his past relevant work as a telephone 13 solicitor. (AR 24-25.) Plaintiff requested review from the 14 Appeals Council, which it denied on March 16, 2020. (AR 1-6, 15 210-12.) This action followed. 16 III. STANDARD OF REVIEW 17 Under 42 U.S.C. § 405(g), a district court may review the 18 Commissioner’s decision to deny benefits. The ALJ’s findings and 19 decision should be upheld if they are free of legal error and 20 supported by substantial evidence based on the record as a whole. 21 See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 22 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence 23 means such evidence as a reasonable person might accept as 24 adequate to support a conclusion. Richardson, 402 U.S. at 401; 25 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It 26 27 2 Plaintiff testified that he completed “ninth or tenth” grade, “something like that” (AR 76), but in an Adult Disability 28 Report he said he finished 11th grade (AR 239). 2 1 is “more than a mere scintilla but less than a preponderance.” 2 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 3 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). “[W]hatever the 4 meaning of ‘substantial’ in other contexts, the threshold for 5 such evidentiary sufficiency is not high.” Biestek v. Berryhill, 6 139 S. Ct. 1148, 1154 (2019). To determine whether substantial 7 evidence supports a finding, the reviewing court “must review the 8 administrative record as a whole, weighing both the evidence that 9 supports and the evidence that detracts from the Commissioner’s 10 conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 11 1998). “If the evidence can reasonably support either affirming 12 or reversing,” the reviewing court “may not substitute its 13 judgment” for the Commissioner’s. Id. at 720-21. 14 IV. THE EVALUATION OF DISABILITY 15 People are “disabled” for Social Security purposes if they 16 can’t engage in any substantial gainful activity owing to a 17 physical or mental impairment that is expected to result in death 18 or has lasted, or is expected to last, for a continuous period of 19 at least 12 months. 42 U.S.C. § 423(d)(1)(A); Drouin v. 20 Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 21 A. The Five-Step Evaluation Process 22 An ALJ follows a five-step sequential evaluation process to 23 assess whether someone is disabled. 20 C.F.R. § 416.920(a)(4); 24 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as 25 amended Apr. 9, 1996). In the first step, the Commissioner must 26 determine whether the claimant is currently engaged in 27 substantial gainful activity; if so, he is not disabled and the 28 claim must be denied. § 416.920(a)(4)(i). 3 1 If the claimant is not engaged in substantial gainful 2 activity, the second step requires the Commissioner to determine 3 whether the claimant has a “severe” impairment or combination of 4 impairments significantly limiting his ability to do basic work 5 activities; if not, a finding of not disabled is made and the 6 claim must be denied. § 416.920(a)(4)(ii) & (c). 7 If the claimant has a “severe” impairment or combination of 8 impairments, the third step requires the Commissioner to 9 determine whether the impairment or combination of impairments 10 meets or equals an impairment in the Listing of Impairments 11 (“Listing”) set forth at 20 C.F.R., part 404, subpart P, appendix 12 1; if so, disability is presumed and benefits are awarded. 13 § 416.920(a)(4)(iii) & (d). 14 If the claimant’s impairment or combination of impairments 15 does not meet or equal one in the Listing, the fourth step 16 requires the Commissioner to determine whether the claimant has 17 sufficient residual functional capacity (“RFC”)3 to perform his 18 past work; if so, he is not disabled and the claim must be 19 denied. § 416.920(a)(4)(iv). The claimant has the burden of 20 proving he cannot perform past relevant work. Drouin, 966 F.2d 21 at 1257. If the claimant meets that burden, a prima facie case 22 of disability is established. Id. 23 If that happens or if the claimant has no past relevant 24 25 3 RFC is what a claimant can do despite existing exertional 26 and nonexertional limitations. § 416.945(a)(1); see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). The 27 Commissioner assesses the claimant’s RFC between steps three and four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) 28 (citing § 416.920(a)(4)). 4 1 work, the Commissioner bears the burden of establishing that the 2 claimant is not disabled because he can perform other substantial 3 gainful work available in the national economy, the fifth and 4 final step of the sequential analysis. § 416.920(a)(4)(v). 5 B. The ALJ’s Application of the Five-Step Process 6 At step one, the ALJ found that Plaintiff had not engaged in 7 substantial gainful activity since September 19, 2016, his 8 application date.4 (AR 19.) At step two, he concluded that 9 Plaintiff had severe impairments of “status post gunshot wounds, 10 anxiety, and depression.” (Id.) At step three, he found that 11 Plaintiff’s impairments did not meet or equal a Listing. (AR 20- 12 21.) 13 At step four, he determined that Plaintiff retained the RFC 14 to perform “medium work” with some limitations: 15 [He] can lift and carry 50 pounds occasionally and 25 16 pounds frequently. He can stand and walk for 6 hours in 17 an 8-hour workday. The claimant can sit about 6 hours in 18 an 8-hour workday. He is able to push and pull an 19 unlimited amount other than as shown for lifting and 20 carrying. The claimant can frequently balance, stoop, 21 kneel, crouch, crawl, and climb. He can frequently 22 interact with coworkers and the public. 23 (AR 21.) 24 The ALJ accepted the VE’s testimony that Plaintiff could 25 return to his past work as a telephone solicitor “as actually and 26 27 4 The ALJ also found that Plaintiff had “not engaged in substantial gainful activity since the alleged onset date” (AR 28 19), which was July 13, 2016 (AR 71, 217). 5 1 generally performed.” (AR 24-25.) Thus, he was not disabled. 2 (AR 25.) 3 V. DISCUSSION 4 Plaintiff asserts that the ALJ failed to resolve a conflict 5 between the VE’s testimony and the Dictionary of Occupational 6 Titles. (See J. Stip. at 4-6.) For the reasons discussed below, 7 the VE’s testimony did not conflict with the DOT. The ALJ 8 therefore did not err. 9 A. Applicable Law 10 To ascertain the requirements of occupations as generally 11 performed in the national economy, the ALJ may rely on VE 12 testimony or information from the DOT. SSR 00-4P, 2000 WL 13 1898704, at *2 (Dec. 4, 2000) (in making disability findings, SSA 14 relies “primarily on the DOT . . . for information about the 15 requirements of work in the national economy” and “may also use 16 VEs . . . at these steps to resolve complex vocational issues”); 17 SSR 82–61, 1982 WL 31387, at *2 (Jan. 1, 1982) (“The [DOT] 18 descriptions can be relied upon — for jobs that are listed in the 19 DOT — to define the job as it is usually performed in the 20 national economy.” (emphasis in original)). 21 When a VE provides evidence about a job’s requirements, the 22 ALJ must ask about “any possible conflict” between that evidence 23 and the DOT. See Gutierrez v. Colvin, 844 F.3d 804, 807 (9th 24 Cir. 2016) (“If the expert’s opinion that the applicant is able 25 to work conflicts with, or seems to conflict with, the 26 requirements listed in the [DOT], then the ALJ must ask the 27 expert to reconcile the conflict before relying on the expert to 28 decide if the claimant is disabled.”); see also SSR 00-4p, 2000 6 1 WL 1898704, at *4. The conflict must be “obvious or apparent” to 2 trigger the ALJ’s obligation to inquire further, and the inquiry 3 is “fact-dependent.” Lamear v. Berryhill, 865 F.3d 1201, 1205 4 (9th Cir. 2017) (citing Gutierrez, 844 F.3d at 808). 5 B. Relevant Background 6 1. The VE’s testimony 7 The ALJ asked the VE to consider a hypothetical person 8 limited to “frequent contact with co-workers and the general 9 public,” among other constraints. (AR 95-96.) The ALJ asked 10 whether that hypothetical person could perform Plaintiff’s past 11 work as a “telephone solicitor,” see DOT 299.357-014, 1991 WL 12 672624 (Jan. 1, 2016). (AR 96.) “Yes,” the VE testified. (Id.) 13 When asked by the ALJ whether his testimony was consistent with 14 the DOT, the VE said, “Yes, as well as my professional work 15 experience in placement.” (AR 97.) In his decision, the ALJ 16 accepted and expressly relied on the VE’s testimony. (See AR 24- 17 25.) 18 2. The telephone-solicitor job 19 According to the DOT, a telephone solicitor, also known as a 20 telemarketer, performs these job duties: 21 Solicits orders for merchandise or services over 22 telephone: Calls prospective customers to explain type of 23 service or merchandise offered. Quotes prices and tries 24 to persuade customer to buy, using prepared sales talk. 25 Records names, addresses, purchases, and reactions of 26 prospects solicited. Refers orders to other workers for 27 filling. Keys data from order card into computer, using 28 keyboard. May develop lists of prospects from city and 7 1 telephone directories. May type report on sales 2 activities. May contact [drivers] to arrange delivery of 3 merchandise. 4 DOT 299.357-014, 1991 WL 672624. The occupation requires workers 5 to “frequently” talk and hear. Id. “Frequently” means up to 6 two-thirds of the workday. Id. 7 At the hearing, Plaintiff testified that when he worked as a 8 telephone solicitor, he did not do any actual “customer service 9 work,” such as “tak[ing] complaints, resolv[ing] billing issues, 10 . . . resolv[ing] issues at all.” (AR 95.) Although some of his 11 phone-solicitor jobs were apparently part time (see, e.g., AR 12 78), others, including his most recent, in 2014, were full time 13 (AR 79, 240). At one of his phone jobs, apparently “all” he did 14 was “call[] people to see if they wanted solar windows.” (AR 15 79.) 16 C. Analysis 17 In Plaintiff’s view, the telephone-solicitor job requires 18 more than frequent contact with the public. (J. Stip. at 5-6.) 19 So, he claims, the VE’s testimony that someone limited to 20 frequent contact with others could work as a telephone solicitor 21 conflicted with the DOT. (Id.) By failing to resolve that 22 conflict, he argues, the ALJ erred. (Id.) 23 But no obvious or apparent conflict exists. True, the 24 telephone-solicitor duties include calling prospective customers, 25 quoting prices, persuading customers, referring orders to 26 coworkers, and contacting drivers. DOT 299.357-014, 1991 WL 27 672624. These duties require contact with others. But the 28 remaining duties — recording names, addresses, purchases, and 8 1 reactions of prospects solicited; keying data; developing lists 2 of prospects; and typing reports — do not. Id. And the DOT 3 notes that a telephone solicitor need only “frequently” hear and 4 talk, which necessarily means that a worker need only frequently 5 interact with others. Id. Thus, the DOT’s description matches 6 the VE’s testimony.5 7 Plaintiff resists this conclusion and urges this Court to 8 rely on “common experience and understanding” to find a conflict. 9 (J. Stip. at 5.) “[T]he lay understanding of this occupation,” 10 he argues, “is that the essential, core job function is to 11 interact with, assist, and/or manipulate the public.” (Id. 12 (citing Gutierrez, 844 F.3d at 808).) In Gutierrez, the Ninth 13 Circuit found no obvious or apparent conflict between the DOT’s 14 statement that cashiers engage in frequent reaching and expert 15 testimony that someone unable to reach overhead could perform the 16 job. Gutierrez, 844 F.3d at 807-09. Common experience guided 17 the court: “[A]nyone who’s made a trip to the corner grocery 18 19 5 As noted above, the ALJ found that Plaintiff could perform 20 the telephone-solicitor job as actually and generally performed. (AR 25.) Based on the limited information in the record, the job 21 as Plaintiff actually performed it did not differ significantly 22 from the DOT’s description. (Compare AR 77-79, 91-93, 95, with DOT 299.357-014, 1991 WL 672624; but see AR 79 (Plaintiff 23 testifying that “all” he did in one phone-solicitor job was “call[] people”).) But even if the ALJ erred in finding that 24 Plaintiff could still do the job as actually performed, any error was harmless because he clearly could do the work as generally 25 performed. See Plischke v. Colvin, No. 3:13-cv-05607-KLS., 2014 26 WL 2711824, at *6 (W.D. Wash. June 16, 2014) (finding any error in ALJ’s holding that plaintiff could perform past work as 27 actually performed harmless because she could perform work as generally performed); Jones v. Colvin, No. CV 12-4473-SP., 2013 28 WL 1752411, at *3 (C.D. Cal. Apr. 22, 2013) (same). 9 1 store knows that while a clerk stocking shelves has to reach 2 overhead frequently, the typical cashier never has to.” Id. at 3 808. 4 Common experience here supplies little guidance. The 5 average person sometimes fields calls from telemarketers. But 6 that is it. Unlike observing a cashier, few people have seen a 7 telemarketer working throughout the day. Even fewer have 8 observed that worker long enough to determine whether the typical 9 telemarketer constantly — not just frequently — interacts with 10 the public and others. 11 Moreover, the law recognizes that the telephone-solicitor 12 job requires “frequent” such contact. See, e.g., Lee v. Comm’r 13 of Soc. Sec., No. 1:13-cv-01054-SAB., 2014 WL 4374260, at *9 14 (E.D. Cal. Sept. 3, 2014) (“Common sense would suggest that a job 15 as a telemarketer would involve frequent interaction with the 16 public.”); see also Adams v. Astrue, No. CIV S-09-2437 DAD 17 (TEMP)., 2011 WL 476432, at *4 (E.D. Cal. Feb. 4, 2011) (“It is 18 apparent from the DOT’s description of the duties involved with 19 [telephone solicitor] that frequent interaction with the public 20 and supervisors is required.”). 21 Because no obvious or apparent conflict exists, the ALJ did 22 not err by failing to elicit more testimony from the VE.6 23 24 25 26 6 Because the Court finds no error, it need not address the Commissioner’s alternative argument that Plaintiff forfeited his 27 claim. (See J. Stip. at 7-8); Hanbey v. Astrue, 506 F. App’x 615, 616 (9th Cir. 2013) (declining to address waiver argument 28 because even if plaintiff preserved issue, he lost on merits). 10 1 VI. CONCLUSION 2 Consistent with the foregoing and under sentence four of 42 3 U.S.C. § 405(g), IT IS ORDERED that judgment be entered AFFIRMING 4 the Commissioner’s decision denying Plaintiff SSI benefits, 5 DENYING Plaintiff’s request for remand, and in the Commissioner’s 6 favor. 7 8 DATED: __________________ _____________________________ June 28, 2021 JEAN ROSENBLUTH 9 U.S. Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11