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Willrodt v. Astrue

July 19, 2010


The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge


Plaintiff filed this action for judicial review of the decision of the Commissioner of the Social Security Administration (the "Commissioner") denying plaintiff's application for supplemental security income ("SSI) benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

The parties are familiar with the procedural history of this case, which is summarized in the Joint Stipulation. [See JS 2]. In an April 15, 2009 hearing decision that constitutes the Commissioner's final decision in this matter, an administrative law judge (the "ALJ") concluded that plaintiff was not disabled because she could perform jobs existing in significant numbers in the national economy. [Administrative Record ("AR") 19-20].

Standard of Review

The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm'r, Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Social Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the [Commissioner's] decision, the [Commissioner's] conclusion must be upheld." Thomas, 278 F.3d at 954 (citing Morgan v. Comm'r of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)).


Step 5 finding

Plaintiff contends that she cannot perform the alternative jobs identified by the ALJ in light of the residual functional capacity ("RFC") assessed by the ALJ. [See JS 4-20].

The ALJ found that plaintiff had a severe impairment consisting of Crohn's disease controlled with medication. [AR 14]. The ALJ determined that plaintiff retained the RFC to perform a range of light work. Specifically, he found that plaintiff could lift and/or carry twenty pounds occasionally and ten pounds frequently; stand and/or walk two hours in an eight-hour work day; sit for six hours; climb stairs, but not ladders; and perform simple, repetitive tasks that are object oriented. The ALJ also found that plaintiff should not have any intense interaction with others and should be able to take two five-minute breaks a day. [AR 15].

A vocational expert testified that the light, unskilled jobs of sewing machine operator, Dictionary of Occupational Titles ("DOT") job number 689.685-118, and electronics worker, DOT job number 726.687-010, could be performed with the limitations identified by the ALJ. [AR 43]. Asked by the ALJ whether her testimony was consistent with the DOT, the vocational expert answered "yes." [AR 44].

Plaintiff argues that the jobs of sewing machine operator and electronics worker are classified as light work in the DOT, and that those jobs exceed her RFC because the ALJ limited her to standing and/or walking for two hours in an eight-hour day. [JS 6]. Plaintiff further contends that the ALJ erred by failing to obtain a reasonable explanation for the apparent conflict between the DOT and the vocational expert's testimony. [JS 8-9].

The Commissioner relies primarily on the DOT for "information about the requirements of work in the national economy." Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007)(quoting Social Security Ruling ("SSR") 00-4p, 200 WL 1898704, at *2)). There is a rebuttable presumption that the information in the DOT and its supplementary Selected Characteristics is controlling. Villa v. Heckler, 797 F.2d 794, 798 (9th Cir. 1986); accord, Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995). The Commissioner "also uses testimony from vocational experts to obtain occupational evidence." Massachi, 486 F.3d at 1153.

An ALJ may not rely on a vocational expert's testimony regarding the requirements of a particular job without first inquiring whether that testimony conflicts with the DOT. Massachi, 486 F.3d at 1152. Neither the DOT nor the vocational expert's testimony "automatically trumps when there is a conflict." Massachi, 486 F.3d at 1153 (footnote omitted). The ALJ must obtain an explanation from the vocational expert for any conflict and must then determine whether the explanation is reasonable, and whether a basis exists for relying on the expert rather than the DOT. Massachi, 486 F.3d at 1153; see Johnson, 60 F.3d at 1428 (stating that an ALJ may rely on expert testimony which contradicts the DOT "only insofar as the record contains persuasive evidence to support the deviation"). Examples of reasonable explanations for deviation are that the DOT "does not provide information about all occupations, information about a particular job not listed in the [DOT] may be available elsewhere, and the general descriptions in the [DOT] may not apply to specific situations." Massachi, 486 ...

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