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Ana Melena v. Michael J. Astrue

August 2, 2012


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


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 there is a Dictionary of Occupational Titles ("DOT") inconsistency in the Administrative Law Judge's ("ALJ") finding that Plaintiff can perform jobs such as hand bander and tube operator;

2. Whether the ALJ properly determined that Plaintiff did not meet Listing 11.03; and

3. Whether the ALJ fully and fairly developed the record. (JS at 3.)

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.



In his Decision (AR 19-28), the ALJ adopted the opinion of the testifying vocational expert ("VE") at the hearing held on July 12, 2001 (AR 312-351) regarding two jobs available to Plaintiff. This Step Five conclusion is set out at AR 28, in which the ALJ identifies the following two jobs: hand bander (DOT 920.687-030) and tube operator (DOT 239.687-014). The ALJ made this Step Five determination based on his determination of Plaintiff's RFC, which is set out at AR 23: "[Plaintiff] has the [RFC] to perform a limited range of sedentary exertion. The [Plaintiff] is limited to lifting and carrying 10 pounds occasionally and less than 10 pounds frequently. She can stand and walk for two hours out of an eight-hour workday, and she can sit for six hours out of an eight-hour workday. She is limited to simple repetitive tasks which do not require hypervigilance, and which are non-public. She might miss work up to twice a month. She cannot perform work, which requires spine dexterity, such as threading a needle. She has the usual seizure precautions, ..." (Emphasis added.)

In her first issue, Plaintiff focuses upon that part of the assessed RFC in which the ALJ determined that Plaintiff cannot perform work which requires fine dexterity, such as threading a needle. In Plaintiff's opinion, the two jobs identified at Step Five would require Plaintiff to use fine fingering constantly to perform them. Plaintiff's counsel provides anecdotal descriptions of these two jobs, and assesses that based on these descriptions, "constant fine fingering" is a required non-exertional element of these jobs.

Plaintiff makes a second, or sub-argument, that she is not capable of performing these jobs because they require the ability to subtract, which she asserts is beyond her capability. (JS at 6-7.) Plaintiff is generally correct in citing applicable law which requires that for an ALJ to rely upon a job description in the DOT which fails to comport with a claimant's limitations, the deviation must be explained. (See JS at 6, citing Pinto v. Massanari, 249 F.3d 840 (9th Cir. 2001).)

Plaintiff's arguments are undermined in several ways. First, Plaintiff's assessment that both identified jobs require fine fingering does not correlate with the DOT descriptions of these jobs. As to the job of hand bander, the DOT description requires fingering which is done "constantly," identified as more than two-thirds of the time, but the finger dexterity demands are expressed in terms of population in the lowest one-third, which excludes the bottom ten percent and requires only a "low degree." This description does not correlate with Plaintiff's claim that the job requires fine fingering. In addition to that, the VE's testimony at the July 12, 2011 hearing must be accounted for, and when this is done, does not support Plaintiff's argument. The VE testified that Plaintiff could not perform any "fine dexterity like threading a needle." (AR 344.) In identifying the jobs of hand bander and tube operator, the VE indicated that these were "not threading a needle, it is fine work." (AR 344-45.) This does not correlate with the fine dexterity which the VE identified as something like threading a needle, which the ALJ reiterated in his Decision. (AR 23.) Finally, the ALJ, as required, did ask the VE whether her testimony was consistent with the DOT, which elicited a positive response. (AR 345.)

Turning to the claim made by Plaintiff that she is incapable of subtraction, there is no such limitation in the RFC. (AR 23.) The ALJ did note that Dr. Glassman had opined that it is "possible" that Plaintiff cannot subtract, but he also concluded that she has average intelligence. In any event, the issue is somewhat of a red herring, in view of the VE's testimony that inability to do subtraction would not preclude Plaintiff from performing the job of hand bander. (AR 345.) Any deviation between Plaintiff's inability to do subtraction, assuming, arguendo, that this is a fact, and ...

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