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Alva v. Astrue

September 15, 2009

DENNIS ALVA, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

(Social Security Case)

This matter is before the Court for review of the decision by the Commissioner of Social Security denying Plaintiff's application for disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have consented that the case may be handled by the Magistrate Judge. The action arises under 42 U.S.C. §405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner. The parties have filed the Joint Stipulation ("JS"), and the Commissioner has filed the certified Administrative Record ("AR").

Plaintiff raises the following issues:

1. Whether the Administrative Law Judge ("ALJ") erred in his analysis of the vocational issues and whether the testimony of the vocational expert is flawed;

2. Whether the ALJ's analysis of Plaintiff's testimony and subsequent rejection of that testimony is legally sufficient; and

3. Whether the ALJ gave appropriate weight to the opinions of Plaintiff's treating physicians and evaluated all of the medical evidence.

(JS at 3.)

This Memorandum Opinion will constitute the Court's findings of fact and conclusions of law. After reviewing the matter, the Court concludes that the decision of the Commissioner must be affirmed.

I THERE IS NO ERROR AT STEP FIVE OF THE SEQUENTIAL EVALUATION At Step Five of the sequential evaluation process (see 20 C.F.R. §404.1520(a)), after it is determined at the preceding step that the claimant may not perform his or her past relevant work (see 20 C.F.R. §404.1520(f)), the ALJ must determine whether the claimant is able to do any other work considering his residual functional capacity ("RFC"), age, education, and work experience. If other specific work is identified, the individual is found to be not disabled.

In this case, the ALJ adopted the testimony of a vocational expert ("VE") at the hearing that, at Step Five, there were jobs in the national economy which were identified as being available to Plaintiff.

Plaintiff challenges the Step Five finding, and the Court has discerned the following issues contained within this challenge:

1. That the jobs identified do not specifically allow Plaintiff the opportunity to "lie down during lunch breaks," which was included within the RFC as determined by the ALJ. (See AR at 19.) Essentially, Plaintiff appears to be asserting that because of an inability to lie down during lunch breaks, the identified jobs constitute a deviation from the descriptions contained in the Dictionary of Occupational Title ("DOT"), which deviation is not sufficiently explained in the testimony of the VE;

2. That the identified jobs are not appropriately classified as "light" exertional work based on the VE's testimony;

3. As to one of the jobs (information clerk) identified at Step Five, there is a deviation because this occupation assertedly requires "significant standing and/or walking" which exceeds the RFC as determined by the ALJ. (See AR at 19, JS at 5.)

A. Applicable Law.

Under applicable regulations, the Commissioner takes administrative notice of reliable job information available from various governmental and other publications, which includes the DOT. (See 20 C.F.R. §404.1566(d)(1)); Massachi v. Astrue, 486 F.3d 1149, 1152, n.8 (9th Cir. 2007).)

The Ninth Circuit had occasion to extensively discuss the matter of job requirements which deviate from DOT descriptions, in the case of Johnson v. Shalala, 60 F.3d 1428 (9th Cir. 1995). There, the VE identified occupations classified in the DOT as "light" work, which is considered a more strenuous exertional category than "sedentary." Although the ALJ had determined that the claimant in that case was capable of only sedentary work (see 60 F.3d at 1431, n.1), the ALJ adopted the VE's identification of the two available jobs at Step Five, which had an RFC requiring the ability to perform light work. The appellate court rejected the argument that the claimant in that case was precluded from performing these jobs ...


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