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Rodney D. Lidster v. Michael J. Astrue

January 3, 2012

RODNEY D. LIDSTER,
PLAINTIFF,
v.
MICHAEL J. ASTRUE,
DEFENDANT.



The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge

ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING FOR SUMMARY JUDGMENT DEFENDANT'S CROSS-MOTION

Plaintiff Rodney D. Lidster filed a Complaint for Judicial Review and Remedy on Administrative Decision Under the Social Security Act. The parties filed cross-motions for summary judgment.*fn1 Plaintiff requests the Court to reverse the decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff's application for disability insurance benefits or remand the case for a new hearing. For the reasons which follow, Plaintiff's motion for summary judgment is DENIED and the Commissioner's cross-motion is GRANTED.

Plaintiff was a mail carrier for the United States Postal Service for 21 years. In 2001 he sustained a right shoulder injury when he was reaching up to case a magazine for his route. He was diagnosed with right shoulder strain secondary to injury at work with labral tear.*fn2 In 2002 he underwent arthroscopic surgery, however pain in his right shoulder continued. After he returned to work, the pain eventually became unbearable. His last day of work was in February 2007 and he officially retired from the Postal Service on April 30, 2007.

On July 25, 2007, at the age of 57, Plaintiff filed a claim for disability insurance benefits under Title II of the Social Security Act, which was denied. A hearing before an Administrative Law Judge ("ALJ") was held on August 19, 2009. Plaintiff, medical expert Michael Stuart Gurvy, and vocational expert John P. Kilcher testified. On November 25, 2009, The ALJ found Plaintiff not disabled and denied his application. The Appeals Council denied de novo review, and Plaintiff appealed to this Court pursuant to 42 U.S.C. Section 405(g).

In reaching her decision, the ALJ followed the five-step sequential evaluation process set forth in 20 C.F.R. Section 404.1520(4). First, she found Plaintiff had not engaged in substantial gainful activity since the alleged onset of his disability on March 3, 2007. (Administrative Record ("AR") at 14.) Second, she determined Plaintiff suffered from a severe impairment consisting of repetitive motion injury to his right shoulder. (Id.) Third, she concluded that none of Plaintiff's impairments or combination of impairments met or medically equaled one of the listed impairments in the regulations. (Id. at 15.)

Next, she concluded Plaintiff had a residual functional capacity ("RFC") "to perform medium work as defined in 20 C.F.R. § 404.1567(c) with the following additional limitations: only frequent handling, feeling, grasping, fingering and manipulating of the right and reaching at waist level on the right; no reaching above the shoulder level on the right; and no climbing ladders." (AR at 15.) The ALJ considered objective medical evidence as well as Plaintiff's symptoms statements of pain in the right shoulder radiating into his elbow and back. She found that Plaintiff's impairments could reasonably be expected to cause these symptoms, but rejected his statements concerning the intensity, persistence and limiting effects of the pain as not credible to the extent they were inconsistent with the RFC. (Id. at 15-16.)

Based on the RFC finding and Mr. Kilcher's vocational opinion, the ALJ found at step four that Plaintiff was able to perform his past work as a mail carrier because he could case mail, which requires overhead reaching, with his left hand rather than right. (Id. at 18-19 & 39-40.) This was sufficient to find Plaintiff not disabled for purposes of social security disability benefits, and did not require the ALJ to proceed to the last and fifth step of the evaluation. See 20 C.F.R. § 404.1520(a)(v).

Plaintiff contends the ALJ erred in her RFC determination and conclusion that he was not disabled. He attacks these findings in three respects: (1) the conclusion that Plaintiff could perform his previous job as a mail carrier is in conflict with the Dictionary of Occupational Titles ("DOT") description of the job; (2) the ALJ erred by giving insufficient weight to the opinion of Arnold Markman, M.D., Plaintiff's treating physician, that Plaintiff was unlikely to be able to return to his job; and (3) to the extent they were inconsistent with the RFC, the ALJ rejected Plaintiff's statements about the debilitating effects of pain as not credible.

The Court "may reverse the ALJ's decision to deny benefits only if it is based upon legal error or is not supported by substantial evidence." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1. (9th Cir. 2005). The denial of benefits must be affirmed if the decision is supported by substantial evidence and applies the correct legal standards. Batson v. Comm'r of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial evidence means "more than mere scintilla but less than a preponderance." Desrosiers v. Sec'y of HHS, 846 F.2d 573, 575-76 (9th Cir. 1988) (internal quotation marks and citations omitted). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Ostenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). "Under this standard, the Commissioner's findings are upheld if supported by inferences reasonably drawn from the record, and if evidence exists to support more than one rational interpretation, [the reviewing court] must defer to the Commissioner's decision." Batson, 359 F.3d at 1193 (internal citations omitted).

Vocational Expert's Testimony Regarding Ability to Perform Past Relevant Work

Plaintiff contends there is a conflict between the frequent reaching requirement of a mail carrier job as described in the DOT and Plaintiff's limitation of no reaching above the shoulder level on the right side, and that the ALJ therefore should have more appropriately questioned the vocational expert at the hearing. Because the ALJ complied with her duty in this regard, Plaintiff's argument is rejected.

The ALJ may not "rely on a vocational expert's testimony regarding the requirements of a particular job without first inquiring whether the testimony conflicts with the [DOT]." Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007). The ALJ's duties in questioning the vocational expert were established in the Social Security Ruling 00-4p as follows: when a vocational expert provides evidence about the requirements of a job or occupation, the adjudicator has an affirmative responsibility to ask about any possible conflict between that vocational expert evidence and information provided in the Dictionary of Occupational Titles. SSR 00-4p further provides that the adjudicator will ask the vocational expert if the evidence he or she has provided is consistent with the Dictionary of Occupational Titles and obtain a reasonable explanation for any apparent conflict.

Massachi, 486 F.3d at 1152-53 (internal quotation marks, brackets, ellipses and footnotes omitted, emphases in original). These procedural requirements ensure that the record is clear as to why an ALJ relied on a vocational expert's testimony, particularly in cases where the expert's testimony conflicts with the Dictionary of Occupational Titles. In making disability determinations, the Social Security Administration relies primarily on the Dictionary of Occupational Titles for information about the requirements of work in the national economy. The Social Security Administration also uses testimony from vocational experts to obtain occupational evidence. Although evidence provided by a vocational expert generally should be consistent with the Dictionary of Occupational Titles, neither the Dictionary of Occupational Titles nor the vocational expert evidence automatically trumps when there is a conflict. Thus, the ALJ must first determine ...


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