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Etter v. Astrue

October 22, 2010


The opinion of the court was delivered by: Honorable Oswald Parada United States Magistrate Judge


The Court now rules as follows with respect to the disputed issues Listed*fn1 in the Joint Stipulation ("JS").*fn2


As reflected in the Joint Stipulation, the disputed issues which Plaintiff raises as the grounds for reversal and/or remand are as follows:

(1) Whether the Administrative Law Judge ("ALJ") could rely upon the testimony of the vocational expert ("VE");

(2) Whether the ALJ properly considered the evidence of mental impairment; and

(3) Whether the ALJ properly considered Plaintiff's testimony. (JS at 4.)


Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether the Commissioner's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means "more than a mere scintilla" but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed. 2d 842 (1971); Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (citation omitted). The Court must review the record as a whole and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, the Commissioner's decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).


A. The ALJ's Findings

The ALJ found that Plaintiff has the severe impairments of history of kidney cancer, treated, without recurrence; chronic kidney disease, stage 2, stable; history of bariatric surgery without complications; depression; and fibromyalgia. (Administrative Record ("AR") at 21.) The ALJ further found that Plaintiff had the residual functional capacity ("RFC") to perform light work with the following limitations: Plaintiff could lift and carry twenty pounds occasionally and ten pounds frequently; stand and/or walk six hours in an eight-hour day; sit six hours in an eight-hour day, with appropriate breaks; occasionally stoop and bend; and climb stairs but cannot climb ladders, work at heights, or balance. (Id. at 24.) He noted Plaintiff should work in an air-conditioned environment and is limited to simple, repetitive tasks. (Id.)

Relying on the testimony of a vocational expert ("VE"), the ALJ concluded that Plaintiff was unable to perform any of her past relevant work as a paralegal or office manager. (Id. at 32.) However, considering Plaintiff's age, education, work experience, and RFC, the ALJ found that Plaintiff could perform the requirements of such occupations as Cashier II (Dictionary of Occupational Titles ("DOT") No. 211.462-010), Office Helper (DOT No. 239.567-010), and Mail Clerk (DOT No. 209.687-026. (AR at 33.)

B. The ALJ's Reliance on the VE's Opinion Was Not Error

The ALJ synthesized the record for the benefit of the VE after hearing the testimony of Plaintiff, Samuel Landau, M.D., and a friend of Plaintiff. (Id. at 69.) The ALJ directed the VE to assume an individual with the same vocational profile as Plaintiff, with the physical and environmental limitations eventually found. (Id.) The VE testified that such a person could perform Plaintiff's past relevant work. (Id.) The ALJ then directed the VE to assume an individual also limited to simple, repetitive tasks. (Id.) The VE testified that the additional limitation would eliminate the ability of Plaintiff to perform her past relevant work. (Id.) When asked if there existed other work in the national economy which such an individual could perform, the VE identified the occupations of Cashier II (DOT No. 211.462-010), Office Helper (DOT No. 239.567-010), and Mail Clerk (DOT No. 209.687-026). (AR at 70.) The VE expressly defined each of the three occupations as light and unskilled, with a specific vocational preparation of two. (Id.) In response to a hypothetical from Plaintiff's counsel adding that the hypothetical individual was also limited in her ability to respond appropriately to changes in the work setting (id. at 73), as clarified by the ALJ to mean that the individual requires a habituated setting in which to perform a simple, repetitive occupation (id. at 73-74), the VE testified that such an individual, limited to simple, repetitive tasks in a strictly habituated, object-oriented setting could still perform the job of Small Products Assembler II (DOT No. 739.687-030) (AR at 74). The VE also testified that given the additional limitation, the positions of Cashier, Office Helper, and Mail Clerk would be eliminated because those were more "multi-tasking types of positions." (Id.)

Plaintiff claims that of the three occupations the ALJ mentioned in his decision, two (Cashier II and Office Helper) are simple but not repetitive, and the other (Mail Clerk), is repetitive, but not simple. (JS at 5, 7-9.) In support, she notes that The Revised Handbook for Analyzing Jobs, Ch. 10 (Dept. of Labor 1991) ("RHAJ") defines and describes eleven temperaments required for work activity, including the temperament for repetitive work activity. (Id. at 5.) She contends that if the DOT description of the occupation does not include the temperament attribute of "repetitive" work activity, then by definition the occupation is not repetitive. (Id.) Neither Cashier II nor Office Helper contain that temperament. (Id. Exs. 1, 2.) As a result, Plaintiff contends that the VE improperly failed to explain her rationale for why the occupations identified would be classified as simple or repetitive. (Id. at 5.)

The RHAJ defines repetitive work activity as:

Performing REPETITIVE or Short Cycle Work involves performing a few routine and uninvolved tasks over and over again according to set procedures, sequence or pace with little opportunity for diversion or interruption. Interaction with people is included when it is ...

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