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Lupe Yarrito v. Michael J. Astrue

December 21, 2010


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


Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's application for disability insurance benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

The procedural facts are summarized in the Joint Stipulation. [JS 2]. In a May 19, 2008 hearing decision that constitutes the Commissioner's final decision in this matter, an administrative law judge ("ALJ") found that plaintiff had severe impairments consisting of a torn meniscus, carpal tunnel syndrome, depression, and degenerative changes in the cervical and lumbosacral spine. [Administrative Record ("AR") 11]. The ALJ found that plaintiff retained the residual functional capacity ("RFC") for medium work involving simple repetitive tasks, and that she "should avoid contact with the general public." [AR 12].

The ALJ concluded that plaintiff was not disabled because her RFC did not preclude her from performing her past relevant work. [AR15].

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 ALJ's decision, the ALJ'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)).


Past relevant work Plaintiff contends that the ALJ erred in failing to make adequate findings to support his determination that her RFC did not preclude performance of her past relevant work. [JS 3-8].

Citing a "Work History Report" completed by plaintiff, the ALJ found that plaintiff's past jobs as a "repacker/picker/processor," "office assistant," and "student assistant" were past relevant work. [AR 15 (citing AR 110-113]. The ALJ further found that [i]n comparing the claimant's [RFC] with the physical and mental demands of this work, the [ALJ] finds that the claimant is able to perform it as actually performed by the claimant. The claimant's descriptions of her past relevant work indicates that it was performed at the level which is within her capacity. [AR 15 (citing AR110-113)].

Plaintiff argues that her written descriptions of her jobs as a "student assistant" and "office assistant" show that those jobs entailed contact with the general public. [JS 4]. Plaintiff reported that in her job as a student assistant, she "used to work with disabled people, helping them get around, filling out paper work for them." [AR 113]. Plaintiff further contends that the record creates a "reasonable presumption" that her job as an office assistant "also requires some degree of contact with the general public." [JS 4].

Plaintiff does not contend that evidence in the record proves that her job as "repacker-UPS-picker-processor" at Black & Decker Distribution involved contact with the general public. However, she argues that the ALJ erred in making that assumption without adducing additional evidence from plaintiff, the Dictionary of Occupational Titles ("DOT") or a vocational expert about the demands of her past jobs as actually or generally performed.

A social security disability claimant bears the burden of proving that she cannot perform either the "actual functional demands and job duties of a particular past relevant job" or the "functional demands and job duties of the occupation as generally required by employers throughout the national economy." Pinto

v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001) (quoting SSR 82-62); see also Burch, 400 F.3d at 679; Villa v. Heckler, 797 F.2d 794, 798 (9th Cir. 1986). The ALJ's obligation is "to make the requisite factual findings to support" the determination that the claimant can perform past relevant work; "[t]his is done by looking at the residual functional capacity and the physical and mental demands of the claimant's past work." Pinto, 249 F.3d at 844-845 (quoting 20 C.F.R. ยงยง 404.1520(e) and 416.920(e)). "[T]wo sources of information . . . may be used to define a claimant's past relevant work as actually performed: a properly completed vocational report," and "the claimant's own testimony." Pinto, 249 F.3d at 845; see SSR 82-61, 1982 WL 31387, at *2, and SSR 82-41, 1982 WL 31389, at *4.Information from the DOT, or the testimony of a vocational specialist, ...

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