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Downey v. Astrue

August 30, 2010

WILLARD DOWNEY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

(Doc. 1)

BACKGROUND

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying his application for disability insurance benefits ("DIB") pursuant to Title II of the Social Security Act. 42 U.S.C. § 405(g). The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.*fn1

FACTUAL BACKGROUND

Plaintiff was born in 1956, has a ninth-grade education, and previously worked as a roofer. (Administrative Record ("AR") 23, 25, 26.) Plaintiff stopped working because of an "aortic mechanic valve replacement." (AR 26.)

On October 11, 2005, William Holmes, M.D., an orthopedic surgeon, reported that Plaintiff complained of right shoulder pain exacerbated by overhead lifting and repetitive reaching and grasping. Plaintiff took occasional Vicodin for discomfort. (AR 183.) On January 19, 2006, Plaintiff reported to Dr. Holmes that his shoulders bothered him with overhead lifting, reaching, and pulling. (AR 177.)

On March 13, 2006, Plaintiff filed an application for DIB, alleging disability beginning March 10, 2006, due to heart valve replacement and shoulder pain. (AR 9, 11, 97.)

On June 1, 2006, D.D. Sharbaugh, a state agency medical consultant, assessed Plaintiff's physical residual functional capacity ("RFC"). (AR 149-56.) The consultant opined that Plaintiff could (1) occasionally lift and/or carry up to 50 pounds and frequently up to 25 pounds; (2) stand and/or walk for a total of about six hours in an eight-hour workday; (3) sit for about six hours in an eight-hour workday; and (4) perform limited pushing and/or pulling with the upper extremities. (AR 150.) Plaintiff was "limited to bilateral frequent overhead work." (AR 152.) Plaintiff had no postural, visual, communicative, or environmental limitations. (AR 151-53.)

On July 2, 2006, Dr. Holmes completed a questionnaire indicating that Plaintiff had an unlimited ability to sit, stand, and walk. (AR 198.) Plaintiff could lift "20 to 30 pounds frequently" and "15 pounds occasionally" during the workday. (AR 199.) Plaintiff could occasionally reach, handle, feel, push, pull, and grasp. (AR 199.)

On July 11, 2006, Robert Master, M.D., a cardiologist, completed a questionnaire indicating that Plaintiff should not work on a roof. (AR 163.) Dr. Master opined that Plaintiff could sit, stand, and walk for eight hours in an eight-hour workday, and he did not need to lie down or elevate his legs (AR 163), and could reach, handle, feel, push, pull, and grasp for eight hours a day (AR 164).

The Commissioner denied Plaintiff's application initially and again on reconsideration; consequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR 47-52, 61-65.) On January 15, 2008, ALJ Sandra Rogers held a hearing where Plaintiff testified that he could only sit for 20 minutes, stand for 10 minutes, and lift up to ten pounds. (AR 32.)

The Social Security Administration has taken administrative notice of the Dictionary of Occupational Titles (the "DOT"), which is published by the Department of Labor and gives detailed physical requirements for a variety of jobs. Massachi v. Astrue, 486 F.3d 1149, 1152 n.8 (9th Cir. 2007); see also 20 C.F.R. § 404.1566(d)(1). A vocational expert ("VE") testified that, according to the DOT, Plaintiff's past work as a roofer was medium*fn2 with no transferable skills to light or sedentary jobs. (AR 38.) A hypothetical person of the same age, education, and work experience as Plaintiff could not perform Plaintiff's past relevant work if that person could at most lift 20 to 30 pounds occasionally and 15 pounds frequently, and could occasionally reach, handle, feel, push, pull, and grasp. (AR 39.) Such a person, however, could perform the light, unskilled jobs of parking lot attendant and sales attendant. (AR 40-41.)

The VE further testified that 15,200 unskilled parking lot and sales attendant jobs accommodated the occasional use of the upper extremities. The VE further explained that he had eroded the total available jobs by 50% to account for Plaintiff's non-exertional limitations that prevented Plaintiff from using his hands more than occasionally. The VE testified that the reduced number of parking lot and sales attendant jobs accommodated "limited arm usage" in that the jobs "fit the hypothetical of light work with only occasional hand and arm ...


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