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Oscar Valdez v. Michael J. Astrue

July 25, 2011

OSCAR VALDEZ PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge

MEMORANDUM OPINION AND ORDER (Social Security Case)

This matter is before the Court for review of the decision by the Commissioner of Social Security denying Plaintiff's application for disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have consented that the case may be handled by the Magistrate Judge. The action arises under 42 U.S.C. §405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner. The parties have filed the Joint Stipulation ("JS"), and the Commissioner has filed the certified Administrative Record ("AR").

Plaintiff raises the following issues:

1. Whether the Administrative Law Judge ("ALJ") properly determined Plaintiff capable of performing past relevant work as a cashier (JS at 3); and

2. Whether the ALJ made proper credibility findings (JS at 8.)

This Memorandum Opinion will constitute the Court's findings of fact and conclusions of law. After reviewing the matter, the Court concludes that the decision of the Commissioner must be affirmed.

I

THE ALJ DID NOT ERR IN DETERMINING THAT PLAINTIFF CAN PERFORM HIS PAST RELEVANT WORK AS A CASHIER

In Plaintiff's first issue, he asserts that the ALJ erroneously determined that he could perform his past relevant work as a cashier. (See JS at 3, et seq.; AR at 19, ¶ 6.)

Plaintiff notes that the ALJ determined his residual functional capacity ("RFC") to include the ability to "occasionally do fine fingering with the right hand." (AR 16.) According to the Dictionary of Occupational Titles ("DOT") definition of the exertional requirements of Plaintiff's past relevant work ("PRW") as a cashier II (see DOT 211.462-010), this job includes a requirement of frequent fingering, defined as a range of one-third to two-thirds of the time. (See JS, Exhibit ["Ex."] 2.) In this respect, the parties do not disagree. Plaintiff's assertion is that the DOT description of this job inferentially includes the requirement of "undoubtedly requir[ing] the use of frequent fine fingering to effectively perform the required tasks, ... [and] require[s] bilateral manual dexterity." (JS at 3.)

Plaintiff's argument is, essentially, that there is an unexplained deviation between the exertional requirements of the identified DOT job and Plaintiff's RFC. Plaintiff correctly cites Ninth Circuit case law which squarely holds that in the event there is such a deviation, the ALJ must provide a specific explanation for it. See JS at 5, citing Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001); Light v. Social Security Administration, 119 F.3d 789, 793 (9th Cir. 1997), citing Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995).

As to this issue, the principal and defining issue is whether there is, in fact, a deviation between the DOT requirements of the identified job and Plaintiff's RFC. Although Plaintiff does have some limitations in his ability to perform fine manipulations with his right hand, there are no such restrictions identified with the use of his left hand. Testimony by the vocational expert ("VE") at the administrative hearing provides no basis upon which to define the DOT job as requiring fine fingering or such manipulative functions with both hands. Indeed, the hypothetical questions posed to the VE at the hearing by the ALJ assumed only occasional fine fingering with the right hand. (AR 42, 43.) In response, the VE identified that Plaintiff could indeed do his PRW.

The DOT does not expressly contain a requirement, as to this identified job, that it requires fine fingering with both hands. Indeed, numerous case decisions both on the appellate and trial level have found that in similar cases, it cannot be concluded that a requirement of bilateral fine fingering can be read into a DOT job description, where the job description does not explicitly state as much. See, e.g., Carey v. Apfel, 230 F.3d 131, 146 (5th Cir. 2000); Feibusch v. Astrue, 2008 WL 583554, *5 (D. Haw., 2008); Diehl v. Barnhart, 357 F.Supp.2d 804, 822 (E.D. Pa. 2005); McConnell v. Astrue, 2010 WL 1946728 (C.D. Cal. 2010).

Moreover, even if the testimony of a VE is not required in a case where resolution of the disability question occurs at Step Four of the sequential evaluation process, here, the ALJ in fact did utilize a VE's testimony to assist in the determination. See Fuller v. Astrue, 2009 WL 4980273, *3 (C.D. Cal. 2009)(where nature of particular action required in performance of job not specified in DOT, ALJ may properly rely on testimony ...


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