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Janice Miller v. Michael J. Astrue

March 8, 2011

JANICE MILLER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



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

MEMORANDUM OF DECISION

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 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 was not disabled because she retained the residual functional capacity ("RFC") to perform her past relevant work as a security guard and security monitor. [Administrative Record ("AR") 15].

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)).

Discussion

Past relevant work

Plaintiff contends that the ALJ erred in finding that plaintiff can perform her past relevant work because: (1) the demands of those jobs are inconsistent with the ALJ's RFC finding; (2) he did not make sufficient findings as to the physical and mental demands of those jobs; and (3) vocational expert testimony was required.

The ALJ found that plaintiff had asthma that was severe, and that she retained the RFC to perform light work that did not involve exposure to a "heavy concentration of respiratory contamination." [AR 12]. The ALJ found that plaintiff's RFC did not preclude her from performing her past relevant work as a security guard and security monitor as those jobs were actually and generally performed. [AR 14].

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). "Although the burden of proof lies with the claimant at step four, the ALJ still has a duty to make the requisite factual findings to support his conclusion." Pinto, 249 F.3d at 844. "This 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. §§ 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 Dictionary of Occupational Titles ("DOT"), or the testimony of a vocational specialist, may be used to ascertain the demands of an occupation as ordinarily required by employers throughout the national economy at steps four and five of the sequential evaluation procedure. See SSR 00-4p, 2000 WL 1898704, at *2.

The ALJ found that plaintiff could perform her past relevant work as actually performed and as defined by the DOT, that is, as generally required by employers throughout the national economy. Plaintiff did not describe the duties involved in her actual past job as a security guard. The ALJ, however, relied on the DOT to find that the job was light and semiskilled. [AR 14]. The DOT contains job classification information for two "security guard" jobs. The DOT job of "security guard," occupational code number 372.667-034, is classified as light work and does not involve exposure to "atmospheric cond[itions]" or "toxic caustic chem[icals]." Nothing in the DOT job definition for that job indicates that it involves exposure to a heavy concentration of respiratory contamination. The same is true of DOT occupational code number 372.667-038, "merchant patroller," a light job that has the alternate title of "security guard."

Plaintiff's suggestion that the DOT job of security guard might expose her to a heavy concentration of respiratory contamination because the work setting could be an industrial plant, or because she might have to approach smokers, is speculative and conflicts with information in the DOT, on which the ALJ permissibly relied. Substantial evidence supports the ALJ's finding that plaintiff could perform the DOT job of security guard with the RFC he described.

The ALJ also found that plaintiff had past relevant work as a "security monitor," a job she described as "monitor-alam [sic] calls" for a "security company." [AR 95]. Plaintiff wrote in a vocational report that this job entailed monitoring calls for an alarm company, calling the police and fire departments when alarms went off, completing daily logs, and resetting the alarm system. [AR 95]. Her job description indicates that the job was sedentary because it involved sitting for six hours a day, with walking and standing during the remaining work hours, and involved lifting and carrying ...


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