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Charihs Lavon Harris Glass v. Michael J. Astrue

October 10, 2012


The opinion of the court was delivered by: Honorable Oswald Parada United States Magistrate Judge


The Court now rules as follows with respect to the disputed issue listed *fn1 in the Joint Stipulation ("JS").*fn2


As reflected in the Joint Stipulation, the sole disputed issue raised by Plaintiff as the ground for reversal and/or remand is whether the administrative law judge ("ALJ") properly developed and considered the vocational evidence of record. (JS at 3.)


Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether the Commissioner's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means "more than a mere scintilla" but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (citation omitted). The Court must review the record as a whole and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, the Commissioner's decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).


A. The ALJ's Findings.

The ALJ found that Plaintiff has the severe impairments of diabetes mellitus; bilateral carpal tunnel syndrome; hypertension; sleep apnea; and obesity. (AR at 11.) The ALJ found that Plaintiff has the residual functional capacity ("RFC") to perform sedentary work, except that she "can perform unskilled, simple work with limitation for occasional posturals (climbing (but never ropes or scaffolds), balancing, stooping, kneeling, crouching, crawling)," and only occasional reaching, handling, fingering, and feeling. (Id.) The ALJ also found that Plaintiff cannot perform work on a conveyor belt or similarly fast-paced environment. (Id.)

Relying on the testimony of the vocational expert ("VE"), the ALJ determined that an individual with Plaintiff's age, education, work experience, and RFC, would be able to perform the requirements of such occupations as Call Out Operator (Dictionary of Occupational Titles ("DOT") 237.367-014), and Surveillance Systems Monitor (DOT No. 379.367-010). (AR at 15.) Thus, the ALJ determined that Plaintiff has not been under a disability, as defined by the Social Security Act. (Id.)

B. The ALJ Failed to Properly Consider the Vocational Evidence.

Plaintiff contends that the ALJ's determination that she could perform alternative occupations at Step Five of the sequential evaluation process was not supported by substantial evidence, and that it would have been appropriate for the ALJ to find Plaintiff disabled through the application of Social Security Ruling 96-9p, because she has a sedentary RFC with "significant bilateral manipulative limitations." (JS at 4.) She argues that it is "blatantly unfair" that Plaintiff "could have been found disabled through direct application of Social Security Ruling 96-9P by a different [ALJ], but instead was found capable of performing two occupations by this [ALJ] who went beyond Social Security Ruling 96-9P and obtained vocational expert testimony." (Id. at 5.)

Plaintiff also contends: (1) the description of the job duties for these two occupations, developed over thirty years ago, is no longer appropriate given significant workplace changes since that time, including the advent of computers; (2) these occupations do not occur in significant numbers in the region; (3) her RFC suggests she should be limited to occupations with a reasoning level no more than 1, and that the two level 3 reasoning occupations suggested by the VE and adopted by the ALJ are inconsistent with that limitation; (4) she needs unscheduled breaks three to four times a day, lasting anywhere from ten to fifteen minutes each, including frequent resting of her hands, thereby precluding performance of these two occupations; (5) the position of call out operator requires making three to six or more calls per hour with necessary typing associated with those phone calls, in excess of the "occasional" manipulative limitation set forth by the ALJ; and (6) her limitations to simple unskilled work, and no fast-paced work, would preclude the position of surveillance system monitor because such a position requires "immediate response," and "the need to react immediately should an event occur," thereby exceeding the GED reasoning level applicable pursuant to the RFC. (Id. at 4-9.)

The Court is unpersuaded by all of the above contentions, with the exception of contention 3, at least ...

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