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Durward J. Bendt v. Michael J. Astrue

September 25, 2012

DURWARD J. BENDT,
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

Plaintiff appeals a decision by Defendant Social Security Administration ("the Agency"), denying his application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). He claims that the Administrative Law Judge ("ALJ") erred when he:

(1) relied on the vocational expert's testimony that Plaintiff's former jobs involved light work; (2) found that Plaintiff was not credible; and (3) overlooked Plaintiff's physical and mental impairments. For the reasons discussed below, the Agency's decision is affirmed.

II. SUMMARY OF PROCEEDINGS

In May 2008, Plaintiff applied for DIB and SSI, alleging that he was disabled due to back pain, emotional problems, and blindness in one eye. (Administrative Record ("AR") 131-37, 181, 189-96.) His application was denied initially and on reconsideration. (AR 76-84.) He then requested and was granted a hearing before an ALJ. (AR 94-103.) On August 13, 2010, he appeared with counsel for the hearing. (AR 36-75.) On October 21, 2010, the ALJ issued a decision denying benefits. (AR 14-24.) Plaintiff appealed the decision to the Appeals Council, which denied review. (AR 1-3, 9.) This action followed.

III. ANALYSIS

A. The Vocational Expert's Testimony

The vocational expert identified Plaintiff's former jobs at Orchard Supply Hardware ("OSH") as light work, though, as Plaintiff explained, some of the duties he performed in those jobs--like stocking 60 pound bags of concrete--entailed heavy lifting. Plaintiff argues that the vocational expert ignored these duties in classifying the jobs at OSH and that the ALJ in turn erred by relying on the vocational expert's testimony to conclude that Plaintiff could work. For the reasons explained below, the Court finds that the vocational expert erred but that the error was harmless.

In classifying a claimant's job, a vocational expert is required to consider all of the duties performed by the claimant on that job. See Valencia v. Heckler, 751 F.2d 1082, 1086 (9th Cir. 1985). A vocational expert may not consider the least demanding aspects of the job and assess a claimant's ability to perform the job based on those minimally demanding duties. Id.

That is what the vocational expert did here. She classified Plaintiff's jobs at OSH as a sales clerk and a retail manager as light work--despite the fact that Plaintiff was required to lift as much as 60 pounds at a time in these positions--and concluded that Plaintiff could still perform them. (AR 68-70.) But, as Plaintiff testified, at OSH, all of the employees, regardless of their title, were required to perform all of the duties necessary to run the store, including lifting heavy bags of materials. (AR 42-43.) The vocational expert's failure to take this requirement into account in classifying Plaintiff's past relevant work was error. See Valencia, 751 F.2d at 1086.

The vocational expert's error was harmless, however, because the ALJ did not rely on it in determining that Plaintiff was not disabled. (AR 23.) Rather, he concluded that Plaintiff could perform these jobs as they are typically performed in the national economy. (AR 23.) This, he is allowed to do. See Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001). And the Dictionary of Occupational Titles ("DOT") lists these jobs as light work. See DOT 290.477-014 (sales clerk);

DOT 185.167-046 (retail manager). Thus, the vocational expert's error was inconsequential to the ALJ's ultimate determination that Plaintiff could perform his past relevant work as it is generally performed in the national economy and, therefore, the error was ...


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