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Margarita Gutierrez v. Michael J. Astrue

January 24, 2012

MARGARITA GUTIERREZ,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,
DEFENDANT.



The opinion of the court was delivered by: Patrick J. Walsh United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Before the Court is Plaintiff's appeal of a decision by Defendant Social Security Administration ("the Agency"), denying her applications for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB"). Plaintiff claims that the Administrative Law Judge ("ALJ") erred when he ignored the opinion of the reviewing doctor and when he relied on the vocational expert's testimony that Plaintiff could work despite her limitations. (Joint Stip. at 5-6.) For the reasons explained below, the ALJ's decision is reversed and the case is remanded for further proceedings.

II. SUMMARY OF PROCEEDINGS

In September 2008, Plaintiff applied for SSI and DIB, alleging, ultimately, that she was disabled due to diabetes, high blood pressure, back problems, depression, and pain. (Administrative Record ("AR") 89-106, 114, 148.) The Agency denied the applications initially and on reconsideration. (AR 51-59.) Plaintiff then requested and was granted a hearing before an ALJ. Plaintiff, who was not represented by counsel, testified at the hearing on January 22, 2010. (AR 18-46.) The ALJ subsequently issued a decision denying benefits. (AR 8-17.) Plaintiff appealed to the Appeals Council, which denied review. (AR 5-7.) She then commenced this action.

III. DISCUSSION

A. The ALJ's Reliance on the Vocational Expert's Testimony

The ALJ determined that Plaintiff was capable of performing light work but was moderately limited in her ability to maintain concentration and attention and could only use her left hand occasionally. (AR 14.) The ALJ accepted the vocational expert's testimony that, despite these limitations, Plaintiff could still perform her former jobs of sales clerk, accounting clerk, and credit card control clerk. (AR 16.) Plaintiff claims that the ALJ erred in doing so. She points out that the vocational expert never testified about the sales clerk position and that the ALJ never asked the vocational expert if her testimony was consistent with the Dictionary of Occupational Titles ("DOT"), as required under the regulations. (Joint Stip. at 5-6.)

The Agency concedes that the vocational expert never testified about the sales clerk position, but argues that the error was harmless because she did testify about the other two positions and that testimony is enough to support the ALJ's finding that Plaintiff could work. (Joint Stip. at 7, n.3.) The harmless error analysis turns on the resolution of Plaintiff's other argument here, i.e., that the ALJ failed to ask the vocational expert about any apparent or actual conflicts between her testimony and the DOT. The Agency concedes that the ALJ erred here, too, when he failed to ask the vocational expert if her testimony was consistent with the DOT, but argues that any error was harmless because there was no inconsistency. (Joint Stip. at 7-8.) For the following reasons, the Court sides with the Agency.

The DOT is the presumptive source on the characteristics of jobs in the national economy. See Pinto v. Massanari, 249 F.3d 840, 845-46 (9th Cir. 2001). Nevertheless, it is not the sole source of this information and the Agency may rely on the testimony of a vocational expert for information on jobs. Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995). But, before relying on a vocational expert's testimony, an ALJ must inquire whether the testimony conflicts with the DOT. Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007); Social Security Ruling 00-4p. Failure to do so requires reversal unless the error was harmless, i.e., there was no actual or apparent conflict or the vocational expert provided sufficient support for her conclusion so as to explain away any conflicts. Coleman v. Astrue, 423 Fed. App'x 754, 756 (9th Cir. 2011); Massachi, 486 F.3d at 1154 n.19.

Though it is not clear from her brief, Plaintiff seems to argue that there is a conflict or an apparent conflict between the vocational expert's testimony that Plaintiff could work as an accounting clerk and the DOT description of this job. (Joint Stip. at 6.) Presumably, this conflict is between the "specific vocational preparation," or SVP, of 5, which requires six months to one year of training, and Plaintiff's limitations in her ability to maintain concentration and attention. (Joint Stip. at 6.) Though not clear from the single sentence she devotes to this issue, she is, apparently, arguing that her mental limitations preclude her from learning how to perform this job.

Plaintiff, however, has not explained how it is that any limitations she suffers as a result of her mental impairment---which, arguably, would interfere with her efforts to master the duties of a job---would preclude her from performing a job that she already knows how to perform and, in fact, already has performed. Nothing in this record suggests that Plaintiff's impairment has caused her to lose the fountain of knowledge she had before she suffered her mental impairment. As such, this argument is rejected.

Plaintiff also argues that the vocational expert's testimony is inconsistent with the descriptions of the jobs of credit card control clerk and accounting clerk because they require frequent or constant reaching, handling, and fingering and Plaintiff can only occasionally use her left hand. (Joint Stip. at 6-7.) The Court does not find that there is any actual or potential conflict between the DOT and the vocational expert's testimony that Plaintiff could perform these jobs despite this limitation. The DOT job descriptions for these two jobs do not include a requirement for use of both hands. See DOT Nos. 216.482-010 (accounting clerk) and 249.367-026 (credit card control clerk). And, generally speaking, the requirement that an employee frequently use his hands to perform a job does not mean that he has to be able to use both hands. See, e.g., Carey v. Apfel, 230 F.3d 131, 146 (5th Cir. 2000) (holding vocational expert's testimony that claimant, whose left arm had been amputated, could perform work as cashier or ticket seller was not inconsistent with DOT requirement of occasional or frequent handling and fingering where DOT did not specifically require use of both hands).

Plaintiff argues that the ALJ and, in turn, the Court, should rely on the Revised Handbook for Analyzing Jobs, which Plaintiff describes as a companion publication to the DOT. (Joint Stip. at 5-6.) In Plaintiff's view, this handbook supports her position that two hands are needed for the clerk positions identified by the ALJ. The Court does not find the handbook binding on the Court or the ALJ, nor did Plaintiff cite any authority to suggest that it was. Further, even if the ALJ had consulted it, the result of this case would not have been different because, as Plaintiff points out in ...


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