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Fuller v. Astrue

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


December 15, 2009

JAMES D. FULLER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.

The opinion of the court was delivered by: Patrick J. Walsh United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Before the Court is Plaintiff's appeal of a decision by Defendant Social Security Administration ("the Agency"), denying his applications for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB"). Plaintiff claims that the Administrative Law Judge ("ALJ") erred when he determined that Plaintiff was capable of performing three jobs that require reaching above the shoulder because Plaintiff is unable to reach above his shoulder with his right arm. (Joint Stip. at 5-6.) As explained in detail below, the Court concludes that the ALJ did not err in finding that Plaintiff could perform these three jobs and, therefore, the Agency's decision is affirmed.

II. DISCUSSION

Plaintiff was born in June 1961. (Administrative Record ("AR") 545.) He worked as a service technician from 1983 until 2001, when he stopped working because he was "not making enough money to live on and pay all the bills." (AR 91, 547--49.) In April 2005, he developed pain in his right shoulder--which has since been diagnosed as rotator cuff impingement syndrome--and began treatment. (AR 274.) In 2006, he applied for DIB and SSI, alleging an inability to work due to arthritis in his right shoulder and right hand, inability to sleep, and high cholesterol. (AR 91.) The Agency denied the claim initially and Plaintiff requested a hearing before an ALJ. On August 9, 2007, Plaintiff appeared with counsel at the administrative hearing and testified. (AR 539--62.) The ALJ thereafter submitted written interrogatories to a vocational expert who provided written responses. (AR 60--64, 72--78.) In short, the vocational expert opined that Plaintiff was capable of working. Plaintiff did not object to the vocational expert's opinion.

On May 15, 2008, the ALJ issued a decision denying Plaintiff's applications. (AR 17-25.) He found that Plaintiff had the residual functional capacity to perform a full range of light work except that he could only occasionally reach with his right arm and could never reach above his shoulder with that arm. (AR 20.) Relying on the vocational expert's submission, the ALJ determined that Plaintiff could not perform his past work but could perform work as a photofinishing counter clerk, a laminating machine offbearer, and a furniture rental consultant. (AR 25.)

Plaintiff takes exception to this finding. He contends that the ALJ erred in determining that he could perform these jobs because all three require reaching above the shoulder with both arms and Plaintiff is unable to do this. (Joint Stip. at 6.)

The Agency disagrees. It argues that the description of these three jobs in the Dictionary of Occupational Titles ("DOT") does not specify that overhead reaching with both arms is required. (Joint Stip. at 12.) As a result, the Agency claims, the ALJ did not err in relying on the vocational expert's finding that Plaintiff could perform all three jobs despite his inability to reach over his shoulder with his right arm. For the reasons explained below, the Court sides with the Agency.

Once a claimant has met his burden at step four of demonstrating that he cannot perform his past relevant work, the burden shifts to the Agency at step five to establish that the claimant is capable of performing other jobs in the economy. 20 C.F.R. §§ 404.1520(f)(g), 404.1560(c); see Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). This burden can be met through the use of a vocational expert. See 20 C.F.R. § 404.1566(e); see also Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999). It can also be satisfied by taking notice of reliable job information contained in various publications, including the DOT. 20 C.F.R. § 404.1566(d). The DOT is a presumptively authoritative source on the characteristics of jobs. See Pinto v. Massanari, 249 F.3d 840, 845-46 (9th Cir. 2001). Nevertheless, the DOT is not the sole source for this information and the Agency may rely on the testimony of a vocational expert for information on jobs. Johnson, 60 F.3d at 1435. Where the vocational expert's testimony differs from the DOT, however, he or she must provide a persuasive rationale supported by the evidence to justify the departure. See Light v. Soc. Sec. Administration, 119 F.3d 789, 793 (9th Cir. 1997).

Here, the ALJ found at step four that Plaintiff could perform light work but could only reach occasionally with his right arm and could not reach above his shoulder at all. (AR 20.) With these limitations in mind, the ALJ determined that Plaintiff could not perform his past relevant work as a heavy equipment mechanic. (AR 24.)

The ALJ determined that Plaintiff's limitations precluded the use of the medical-vocational guidelines (or "Grids") and solicited input from a vocational expert. (AR 24-25.) The ALJ did so by providing the vocational expert with a list of questions, to which the vocational expert provided written responses. (AR 60-63, 72-78.) The vocational expert found three jobs that Plaintiff could perform despite his reaching limitations: photofinishing counter clerk, laminating machine offbearer, and furniture rental consultant. (AR 61-62.) According to the job descriptions in the DOT, all three jobs require occasional reaching. See Dictionary of Occupational Titles, 4th Ed. Revised 1991, Nos. 295.357-018, 569.686-046, and 249.366-010. In Plaintiff's view, "reaching" includes reaching above the shoulder and, because he is unable to reach that high with his right arm, he cannot perform any of the jobs identified by the vocational expert. (Joint Stip. at 6.) There is no support for this argument.

To begin with, the DOT does not define "reaching" as reaching above shoulder height, nor does anything in the job descriptions for these three jobs suggest that reaching above the shoulder with either arm, never mind both arms, is required. See Dictionary of Occupational Titles, 4th Ed. Revised 1991, Nos. 295.357-018, 569.686-046, and 249.366-010. Thus, there is no apparent conflict between the vocational expert's findings and the DOT.

Plaintiff points out that, in the Handbook for Analyzing Jobs and Social Security Ruling ("SSR") 85-15, "reaching" is defined as "extending hands and arms in any direction." (Joint Stip. at 6.) He argues that these definitions should be incorporated into the DOT. Again, the Court disagrees.

The fact that "reaching" as a general matter can involve "extending hands or arms in any direction" does not mean that the reaching required for the jobs identified by the vocational expert involves reaching at or above shoulder level. Because the nature of the particular reaching action required in the performance of the jobs at issue is not specified in the DOT, the ALJ properly relied on the vocational expert's testimony that Plaintiff could perform the jobs in question despite the limitations on his reaching. See SSR 85-15 ("Reaching (extending the hands and arms in any direction) ... [is] required in almost all jobs. Significant limitations of reaching ... therefore, may eliminate a large number of occupations a person could otherwise do. Varying degrees of limitations would have different effects, and the assistance of a [vocational expert] may be needed to determine the effects of the limitations")(emphasis added).

This is particularly true in this case, where the vocational expert's testimony was provided in writing to Plaintiff's counsel to give him an opportunity to object or request clarification and counsel did neither. (AR 58-59, 69-70.) Plaintiff's failure to raise an objection to the vocational expert's testimony is tacit approval of that testimony.*fn1

Although not binding on the Court, Carey v. Apfel, 230 F.3d 131 (5th Cir. 2000), is instructive. In Carey, the ALJ relied on the testimony of a vocational expert to find that the claimant, whose left arm had been amputated, could perform work as a cashier or ticket seller. On appeal, the claimant argued that the vocational expert's testimony was inconsistent with the DOT because both jobs required a certain level of dexterity as well as frequent handling and fingering with two hands and the claimant had only one hand. Id. at 146. The Fifth Circuit disagreed. The court first noted that there was no conflict between the vocational expert's testimony and the DOT because the DOT did not state that the jobs required the use of both hands. Id. The court further noted that the claimant's counsel had had the opportunity to object to the vocational expert's testimony that the claimant could perform the jobs with one hand or to cross-examine him on the issue and he chose not to. Id. The court concluded that, under those circumstances, the ALJ properly relied on the expert's testimony. Id.

Like the claimant in Carey, Plaintiff did not object to the vocational expert's testimony that Plaintiff could perform work that required reaching despite the fact that Plaintiff's ability to reach was limited. Like the claimant in Carey, Plaintiff later argued that "reaching" meant with both arms. Like the court in Carey, the Court concludes that the ALJ did not err in interpreting the language of the DOT or in relying on the vocational expert's testimony that Plaintiff could work.

Finally, Plaintiff argues that the ALJ erred in relying on the vocational expert's testimony because it was plainly in conflict with the DOT descriptions for these jobs and the vocational expert never explained his justification for departing from the DOT, as he was required to do under SSR 00-4p and Massachi v. Astrue, 486 F.3d 1149 (9th Cir. 2007). (Joint Stipulation at 9-13.) Plaintiff is mistaken. Massachi and SSR 00-4p require an ALJ to inquire about conflicts between the vocational expert's testimony and the DOT. The ALJ did so and the vocational expert testified that there were none. (AR 62, 77.) This was all that was required.*fn2 In the end, the Court concludes that the vocational expert's testimony that Plaintiff could perform the three jobs he identified did not conflict with the DOT and, therefore, the ALJ did not err in relying on that testimony. For these reasons, the Agency's decision is affirmed and the case is dismissed with prejudice.

IT IS SO ORDERED.


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