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Olivia Huerta v. Michael J. Astrue

July 12, 2012

OLIVIA HUERTA,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,
DEFENDANT.



The opinion of the court was delivered by: Marc L. Goldman United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Olivia Huerta ("Plaintiff") seeks judicial review of the Commissioner's final decision denying her application for disability insurance benefits ("DIB") pursuant to Title II of the Social Security Act. For the reasons stated below, the decision of the Commissioner is affirmed and the action is dismissed with prejudice.

I. BACKGROUND

Plaintiff was born on November 19, 1966. (Administrative Record ("AR") at 698.) She has relevant work experience as a food server, bakery manager, and warehouse worker. (AR at 652.) Plaintiff first filed her application for benefits on June 23, 2006, alleging disability beginning July 18, 2005, due to multiple cervical discopathies, multiple disc protrusions in the lumbar spine, depression, shoulder pain, knee pain, and anxiety. (AR at 10.) The Social Security Administration denied Plaintiff's applications initially and upon reconsideration. (AR at 74-85.) The matter was heard by an Administrative Law Judge (ALJ), who issued an unfavorable decision on June 16, 2009. Plaintiff sought review of that decision, and in a Memorandum Opinion and Order dated March 9, 2011, this Court reversed the decision and remanded to the Commissioner for further consideration of the opinion of examining physician Thomas W. Jackson, M.D. See Huerta v. Astrue, No. EDCV 10-1095, 2011 WL 836660 (C.D. Cal. March 9, 2011).

A new hearing was held before ALJ Sharilyn Hopson on June 22, 2011. (AR at 636.) Plaintiff, who was represented by counsel, testified at the hearing, as did a vocational expert ("VE") and a medical expert. (AR at 636.) The ALJ issued a decision on August 11, 2011, denying Plaintiff's application. (AR at 636-54.) The ALJ found that Plaintiff suffers from the following severe impairments: degenerative disc disease of the entire spine, left shoulder tendinitis, obesity, depression, anxiety. (AR at 639.) Nevertheless, the ALJ determined that Plaintiff has the residual functional capacity ("RFC") to perform a limited range of light work activity.*fn1 (AR at 640.)

Plaintiff commenced this action for judicial review on November 23, 2011. On June 22, 2012, the parties filed a joint statement of disputed issues ("Joint Stip."). Plaintiff contends that the ALJ: (1) failed to properly develop and evaluate the vocational evidence, and (2) improperly assessed her credibility in considering her subjective complaints.*fn2 (Joint Stip. at 4.) Plaintiff seeks reversal and an award of benefits, or alternatively, remand for further administrative proceedings. (Joint Stip. at 24-45.) Defendant requests that the ALJ's decision be affirmed, or, if the Court finds that the ALJ committed reversible error, that the Court remand for further administrative proceedings. (Joint Stip. at 25-27.)

II. STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The Commissioner or ALJ's decision must be upheld unless "the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole." Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1990); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such evidence as a reasonable person might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). It is more than a scintilla, but less than a preponderance. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). To determine whether substantial evidence supports a finding, the reviewing court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). "If the evidence can support either affirming or reversing the ALJ's conclusion," the reviewing court "may not substitute its judgment for that of the ALJ." Robbins, 466 F.3d at 882.

III. Analysis

A. The Vocational Evidence

At the hearing, the VE testified that someone with Plaintiff's limitations would be able to perform the following three occupations: (1) electronics worker, which carries the number 726.687-010 in the Dictionary of Occupational Titles ("DOT"); (2) Receptionist, with a DOT number of 237.367-046; and (3) Parking Lot Booth Attendant, with a DOT number of 915.473-010. (AR at 653, 688-89.) Based on this testimony, the ALJ concluded that Plaintiff retained the ability to perform jobs existing in significant numbers in the national economy. (AR at 653.)

Plaintiff contends that the VE did not properly identify any occupation that Plaintiff would be able to perform. She argues that the occupation of Electronics Worker requires numerous duties that are incompatible with the standing and head position limitations identified in her RFC. (Joint Stip. at 7.) She also argues that the DOT number provided by the VE for Receptionist actually identifies a Telephone Quotation Clerk, and that Plaintiff is not able to perform either the duties of a Telephone Quotation Clerk, DOT 237.367-046, or those of a Receptionist, DOT 237.367-038. (Joint Stip. 5-6.) Similarly, the DOT number provided by the VE for Parking Lot Booth Attendant actually identifies a Parking-Lot Attendant, an occupation that Plaintiff would be unable to perform. (Join Stip. at 6.) Plaintiff also maintains that it was error for the ALJ to fail to address the VE's testimony that Plaintiff would be unable to sustain work activity if she were taking unscheduled breaks or missing days from of work. (Join Stip. at 8.)

Despite Plaintiff's arguments to the contrary, the VE's testimony that someone with Plaintiff's RFC would be able to perform the occupation of Electronics Worker does not conflict with the DOT. The DOT's description of Electronics Worker includes multiple tasks. (Joint Stip at Ex. D.) While it appears that at least two of the tasks, those involving moving and unloading parts, require standing up and moving, there is no indication that many of the other tasks, such as preparing components and printing, cannot be performed sitting down. As Plaintiff's RFC allows for some mobility, there is nothing inconsistent on its face between the DOT description and Plaintiff's RFC. Similarly, it is not clear from the DOT description that the tasks would be incompatible with Plaintiff's head and neck limitations. There is no indication that the tasks cannot be performed while maintaining a comfortable head position, or that Plaintiff would be unable to switch positions every 15 to 30 minutes. It was reasonable for the ALJ to rely on the VE's testimony that someone with Plaintiff's standing and head and neck limitations could perform the occupation of Electronics Worker, particularly in light of the absence of any obvious contradiction with the DOT description. See Johnson v. Shalala, 60 F.3d 1428, 1435 -366 (9th Cir. 1995) (finding it proper for the ALJ to rely on a VE's testimony regarding which available jobs the claimant could perform). Accordingly, the ALJ's finding that Plaintiff could perform the occupation of Electronics Worker was supported by substantial evidence.

As Plaintiff points out in the Joint Stipulation, the DOT number the VE gave for Receptionist actually identifies the occupation of Telephone Quotation Clerk. (Joint Stip. at 5, Ex. A.) The occupation of Receptionist, which carries a DOT number of 237.367-038, is a semi-skilled occupation, and therefore incompatible with Plaintiff's RFC limitation of simple, repetitive tasks. (Joint Stip. at B.) The DOT describes the occupation of Telephone Quotation Clerk as involving telephone calls with customers regarding stock quotations. (Joint Stip. at ...


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