The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER GRANTING MOTION TO ALTER PRIOR JUDGMENT OR ORDER
Defendant Michael J. Astrue, Commissioner of Social Security ("Commissioner"), moves pursuant to Federal Rule of Civil Procedure 59(e) to alter or amend this court's September 29, 2008 Order Granting in Part and Denying in Part Cross-Motions for Summary Judgment ("Order"). Specifically, the court found that the ALJ's failure to ask the vocational expert ("VE") if her testimony conflicted with the Dictionary of Occupational Titles ("DOT") constituted reversible error under Massachi v. Astrue, 486 F.3d 1149 (9th Cir. 2007). The Commissioner argues that remand to the ALJ for further consideration is not warranted under the circumstances because such an error is harmless in light of the evidentiary record. Plaintiff opposes the motion.
A motion to alter or amend a judgment or order under Rule 59(e) or Rule 60 is appropriate where "(1) the district court is presented with newly discovered evidence, (2) the district court committed clear error or made an initial decision that was manifestly unjust, or (3) there is an intervening change in controlling law." Duarte v. Bardales, 526 F.3d 563, 567 (9th Cir. 2008); School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (citations omitted), cert. denied, 114 S.Ct. 2742 (1994). The Government argues that any error in the underlying administrative proceeding is harmless because "substantial evidence  supports the ALJ's conclusion that the VE's testimony was consistent with the DOT (Dictionary of Occupational Titles)." (Motion at p. 2:15-16). For the reasons set forth below, the court finds this argument persuasive and therefore reconsiders its prior Order.
The court incorporates the analysis set forth in its earlier Order and addresses the issues raised by the Commissioner. "The procedural requirements of SSR 00-4 ensure that the record is clear as to why an ALJ relied on a vocational expert's testimony, particularly in cases where the expert's testimony conflicts with the" DOT. Massachi, 486 F.3d at 1152. Where there is an apparent conflict between the VE's testimony and the DOT, "at a minimum" the ALJ "must inquire through a vocational expert into the possible inconsistency." Burns v. Barnhart, 312 F.3d 113, 127 (3rd Cir. 2002) (finding that Social Security Ruling 00-4p requires the ALJ to ask the vocational expert whether any possible conflicts exist between the vocational expert's testimony and the DOT).
As the VE's testimony was consistent with the DOT, the Commissioner concludes that there was no need for testimony explaining the inconsistencies as no material inconsistency exists. Consequently, the Commissioner concludes that the court committed clear error. As set forth in the Order, two of the positions identified by the VE (counter clerk and office helper) require a level two reasoning level. (Order at 18-21). A level two GED reasoning means the worker must apply "commonsense understanding to carry out detailed but uninvolved written or oral instructions and deal with problems involving a few concrete variables in or from standardized situations." 1 U.S. Dept of Labor, DOT Titles Nos. 239.567-010, 249.366-010, at 210, 217 (4th ed. Rev. 1991). Reasoning at GED level one means the worker must apply "commonsense understanding to carry out simple one-or two-step instructions and deal with standardized situations with occasional or no variables in or from these situations encountered on the job." Id., No. 230.687-101, at 205.
In addressing Plaintiff's reasoning level (and as set forth in the Order), the ALJ determined that Plaintiff was able to perform "simple, repetitive work [and] to understand detailed but uncomplicated instructions, and simple one/two instructions." (Admin. R. 19; Order at p.19). While the ALJ's findings do not precisely parrot the definition of GED level two in the DOT, the degree or level of reasoning identified by the ALJ is consistent with the definition of GED level two in the DOT. In this sense, there is no apparent conflict between the VE's testimony and the DOT which would trigger the further consistency review contemplated in Massachi. As the scope of this court's review of the Commissioner's decision is limited to determine whether it is supported by substantial evidence and is free of legal error, Hermes v. Secretary, 926 F.2d 789, 790 (9th Cir. 1991), the court finds that it would be clear error to remand this matter for further determinations where the evidentiary record supports the Commissioner's decision.
In sum, the court grants the motion to reconsider the prior Order. The Clerk of Court is instructed to enter judgment on the cross motions for summary judgment (Docket Nos. 18, 19), in favor of Defendant and against Plaintiff on all claims.
© 1992-2009 VersusLaw ...