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Brian Davis v. Michael J. Astrue

November 20, 2012

BRIAN DAVIS, 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

Brian Davis ("Plaintiff") challenges the Social Security Commissioner's ("Defendant") decision denying his application for disability benefits. Two issues are presented for decision here:

1. whether the Administrative Law Judge ("ALJ") erred at step five in finding that Plaintiff could perform the positions of industrial cleaner, landscape worker, and dishwasher, (see Joint Stip. at 3-7); and

2. whether the ALJ erred in rejecting the opinion of Plaintiff's treating physician, Dr. Arvind Salwan. (See id. at 18-22.)

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, based upon the testimony of the vocational expert ("VE"), that he could perform the duties of an industrial cleaner, landscape worker, and dishwasher. Specifically, Plaintiff argues that these positions, as described by the Dictionary of Occupational Titles ("DOT"), conflict with his residual functional capacity ("RFC") prohibiting him from "operat[ing] motorized equipment [and] work[ing] around unprotected machinery." (Joint Stip. at 5-6; see AR at 19.) The Court, however, is unpersuaded.

As a matter of law, neither the DOT nor the testimony of a VE "automatically 'trumps' when there is a conflict" between the two. Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007) (footnote omitted). Instead, if a conflict appears to exist, the ALJ must obtain a "reasonable explanation" for that conflict. See SSR 00-4p, 2000 WL 1898704, at *4.

Here, no such conflict appears to exist between the DOT and the VE's testimony. Three reasons guide that determination.

First, the positions of industrial cleaner and dish washer do not require performance of all of the duties described by their DOT entries. These entries merely require the performance of "any combination" of the described duties. See DOT 381.687-018, DOT 318.687-010. Thus, even if the job duties described by the DOT conflict with Plaintiff's RFC -- which, as shown below, is a doubtful proposition -- those duties are not crucial to the position. Consequently, no inherent conflict exists between Plaintiff's RFC and the DOT. See Ballesteros v. Astrue, 2011 WL 836656, at *4 (C.D. Cal. Mar. 8, 2011) (reasoning the same). At minimum, then, the positions of industrial cleaner and dish washer are viable ones, and any error pertaining to the landscape worker position is harmless. See Batson v. Comm'r of Soc. Sec., 359 F.3d 1190, 1197 (9th Cir. 2004) (harmless errors do not warrant reversal).

Second, regarding the limitation against operating motorized equipment, the Court notes that all three positions largely mandate the use of simple, handheld tools. See, e.g., DOT 381.687-018 (handtrucks and steam cleaners), DOT 406.687-010 (grass seed spreaders and general handtools), DOT 318.687-010 (brooms, mops, and handtrucks). Where the DOT describes equipment that is arguably motorized, it does not require their use. For instance, under the DOT, an industrial cleaner "[m]ay" operate an industrial truck to transport materials. DOT 381.687-018. Similarly, a landscape specialist has the option of mowing lawns with "hand mower or [a] power-driven lawnmower." DOT 406.687-010 (emphasis added). Likewise, a dish washer may peel vegetables "using [a] knife or peeling machine." DOT 318.687-010 (emphasis added).

Third, as for the limitation against working around unprotected machinery, the DOT describes these positions as requiring no interaction with "[m]oving [m]ech[anical] [p]arts." See DOT 381.687-018, DOT 406.687-010, DOT 318.687-010. Presumably, in the absence of any moving parts, there is nothing from which one would need protection. Thus, it is unlikely that these positions involve unprotected machinery.

Accordingly, the Court does not find error with the ALJ's step five determination.

B. The ALJ's Rejection of Dr. Salwan's Treating Opinion Plaintiff next asserts that the ALJ improperly rejected the opinion of Plaintiff's treating ...


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