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Janet A. Hernandez v. Michael J. Astrue

January 21, 2011


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 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 a written hearing decision that constitutes the final decision of the Commissioner, an administrative law judge ("ALJ") found that plaintiff had severe impairments consisting of status post operative adhesive capsulitis of the shoulders bilaterally, status post operative bilateral carpal tunnel syndrome, cervical sprain/strain, and lumbar sprain/strain. [JS 2; Administrative Record ("AR") 19]. The ALJ found that plaintiff retained the residual functional capacity ("RFC") to perform light work that allowed her to alter positions for one to two minutes every hour, involved occasional fine and gross manipulation with the hands bilaterally, and did not require work at or above shoulder level. [AR 20]. The ALJ concluded that plaintiff was not disabled because her RFC did not preclude her from performing work available in significant numbers in the national economy. [See JS 2; AR 23-24].

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, Soc. 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. Soc. 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 Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)).


Vocational expert's testimony Plaintiff does not challenge the ALJ's RFC assessment or the manner in which he framed his hypothetical question. Plaintiff contends, however, that the ALJ erred in relying on the testimony of the vocational expert ("VE") in response to the ALJ's hypothetical question incorporating the limitations in plaintiff's RFC. Plaintiff contends that the VE's testimony conflicts with presumptively reliable information in the Dictionary of Occupational Titles ("DOT") and its companion publication, Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles ("SCO"). Plaintiff argues that the VE failed adequately to explain that deviation, and that the ALJ failed to acknowledge or reconcile the conflict in his decision. [See JS 4-15].

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.

"Where the testimony of a VE is used at Step Five, the VE must identify a specific job or jobs in the national economy having requirements that the claimant's physical and mental abilities and vocational qualifications would satisfy." Osenbrock v. Apfel, 240 F.3d 1157, 1162-1163 (9th Cir. 2001). An ALJ may not rely on a VE'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 VE'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 VE 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").

The ALJ asked the VE to assume the existence of a hypothetical individual matching plaintiff's age, education, and work experience who is limited to light work but "[n]eeds to take a few minutes every hour, a minute or two to make a brief body adjustment," can perform "occasional gripping, typing, grasping, bending," and is "precluded from work at or above shoulder level." [AR 444]. The VE testified that such an individual could not perform plaintiff's past relevant work, but was not precluded from performing the jobs of storage facility clerk, DOT occupational code number 295.367-026; cashier II, DOT occupational code number 211.462-010; and usher, DOT occupational code number 344.677--014. The VE explained that the number of cashier II jobs that the hypothetical person could perform would be eroded by 90% due to the "upper-extremity limitations," but that with the 90% erosion, approximately 4,000 jobs would remain locally and 150,000 available nationally. [AR 444-445]. Asked whether the information she provided was consistent with the DOT and the SCO, "unless otherwise stated," the VE answered, "Yes." [AR 446].

The ALJ relied on the VE's testimony to find that plaintiff could perform alternative jobs available in significant numbers in the national economy. [AR 24].

Plaintiff contends that the ALJ did not acknowledge or reconcile apparent conflicts between the occupational definitions in the DOT and SCO of the jobs of storage facility clerk, cashier II, and usher and the VE's testimony ...

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