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Joanne Wyerman v. Michael J. Astrue

October 26, 2012

JOANNE WYERMAN, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Hon. Jay C. Gandhi United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Joanne Wyerman ("Plaintiff") challenges the Social Security Commissioner's ("Defendant") decision denying her application for disability benefits. Three issues are presented for decision here:

1. whether the Administrative Law Judge ("ALJ") properly held at step five*fn1 that Plaintiff can perform the occupations of packing machine operator, security gate guard, and retail sales clerk, (see Joint Stip. at 3-12);

2. whether the ALJ properly assessed Plaintiff's credibility,*fn2 (see id. at 20-24); and

3. whether the ALJ properly and fully developed the record. (See id. at 17-19.)

The Court addresses -- and rejects -- Plaintiff's contentions below.

A. The ALJ's Step Five Determination

Plaintiff first complains that the ALJ improperly concluded at step five that she could perform the duties of a security gate guard. (Joint Stip. at 6-7.) Specifically, Plaintiff argues that this position conflicts with her residual functional capacity prohibiting exposure to "extreme temperatures." (Id.; see Administrative Record ("AR") at 20.) Under the Dictionary of Occupational Titles ("DOT"), the position of security gate guard is partially spent outdoors (e.g., patrolling building grounds and regulating traffic). See DOT 372.667-034. From this, Plaintiff reasons that the position would require exposure to "the weather frequently, including when it is hot, cold, snowing, [and] raining" and would thus conflict with her limitation against extreme temperatures. (Joint Stip. at 7.) Plaintiff's claim is untenable for at least two reasons.

First, Plaintiff's conclusion that the position of security gate guard requires exposure to extreme temperatures is contradicted by the very language of the DOT. Under the DOT, the position is described as requiring frequent exposure to the weather, but absolutely no exposure to "[e]xtreme [c]old," "[e]xtreme [h]eat," "[h]umid[ity]," or "[a]tmospheric [c]ond[itions]." See DOT 372.667-034.

Second, as a matter of mostly common, exposure to weather does not necessarily imply exposure to extreme temperatures, in and of itself. Granted, exposure to weather is an unavoidable fact of life, but "extreme" temperatures suggests a much rarer occurrence. It thus appropriate that the DOT would distinguish between the two notions.

Thus, Plaintiff's claim here is unconvincing, and the Court finds no error.*fn3

B. Plaintiff's Credibility

Plaintiff next asserts that the ALJ failed to present adequate reasons to reject her credibility. The Court disagrees.

An ALJ can reject a plaintiff's credibility "only upon (1) finding evidence of malingering, or (2) expressing clear and convincing reasons for doing so." Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). "General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence ...


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