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Wanda Sue Bruce v. Carolyn W. Colvin*Fn1

February 28, 2013


The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge


Plaintiff filed this action seeking reversal of the decision of the defendant, the Acting Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's application for disability insurance benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.


The parties are familiar with the procedural history of this case, which is summarized in the Joint Stipulation. [See JS 1-2]. In a written hearing decision that constitutes the final decision of the Commissioner, an administrative law judge ("ALJ") found that plaintiff had severe impairments consisting of obesity, degenerative disc disease of the cervical and lumbar spine, and a history of cervical fusion.

[Administrative Record ("AR") 13]. The ALJ found that plaintiff retained the residual functional capacity ("RFC") to lift and carry 20 pounds occasionally and 10 pounds frequently; sit for six hours with normal breaks; stand and walk for two hours; and engage in occasional postural activities. She could not use ladders, ropes, or scaffolds and could not tolerate exposure to unprotected heights, concentrated vibration, or temperature extremes. [AR 14]. Relying on the testimony of a vocational expert, the ALJ determined that plaintiff had past relevant work as an assistant store manager, Dictionary of Occupational Titles ("DOT") job number 185.117-010, and had acquired transferable skills from her past relevant work. [AR 22].

The ALJ determined that plaintiff, who was a person of "advanced age" (ages 55-59) on her alleged onset date and became a person "closely approaching retirement age" (ages 60-64) when she turned 60 on December 4, 2009, could not perform her past relevant work as actually or generally performed, but could perform alternative jobs available in significant numbers in the national economy. [AR 22-23]. Accordingly, the ALJ found plaintiff not disabled through the date of his decision. [AR 23].

Standard of Review

The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Soc. Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas, 278 F.3d at 954 (citing Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999)).


Vocational expert testimony

Plaintiff contends that the vocational expert erroneously classified plaintiff's past relevant work and the transferable skills she acquired from that work, and also failed to identify alternative jobs within plaintiff's RFC that require little, if any, vocational adjustment. Plaintiff contends that the vocational expert's testimony therefore does not provide substantial evidence supporting the ALJ's finding that plaintiff can perform alternative work available in significant numbers in the national economy. [JS 4-14].

Plaintiff was represented by counsel during the administrative hearing. In her hearing testimony and disability reports, plaintiff said that she worked for 20 years as an "assistant manager" or "assistant store director" at Sav-On Drugs. [AR 31, 159-160]. The vocational expert testified that plaintiff had past work as an "assistant store manager,"and that she acquired transferable skills from her past work. [AR 22]. The ALJ further found that little vocational adjustment would be required for plaintiff to perform the alternative semiskilled, sedentary jobs of retail secretary, DOT job number 201.362-030; administrative assistant, DOT job number 169.167-010; and sales agent, retail finance, DOT job number 250.357-026. [AR 22-23]. The ALJ concluded that the vocational expert's testimony was consistent with information in the DOT. [AR 23].

The Commissioner "relies primarily on the [DOT] for information about the requirements of work in the national economy," but also "uses testimony from vocational experts to obtain occupational evidence." Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007). The "general job categories" of the DOT are "presumptively applicable to a claimant's prior work. The claimant, however, may overcome the presumption that the [DOT's] entry for a given job title applies to him by demonstrating that the duties in his particular line of work were not those envisaged by the drafters of the category." Villa v. Heckler, 797 F.2d 794, 798 (9th Cir. 1986). "If the [ALJ] incorrectly categorized [the claimant's] occupation, . . . then the description applicable to that category is irrelevant" to assessing the demands of the claimant's past relevant work as generally performed. Villa, 797 F.2d at 798.

Additionally, an ALJ may not rely on a vocational expert's testimony regarding the requirements of a particular job without first determining whether a conflict exists between the expert's testimony and the DOT. "If it does, the ALJ must then determine whether the vocational expert's explanation for the conflict is reasonable and whether a basis exists for relying on the expert ...

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