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Worrall v. Colvin

United States District Court, Ninth Circuit

December 9, 2013

CAROLYN W. COLVIN, Commissioner of the Social Security Administration, Defendant.


ANDREW J. WISTRICH, Magistrate Judge.

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

Administrative Proceedings

Plaintiff, who is now 48 years old, filed an application for SSI benefits on August 15, 2008, alleging that he had been disabled since January 1, 2006. [JS 2; Administrative Record ("AR") 19, 185-188]. Plaintiff's applications were denied initially and upon reconsideration. [JS 2; AR 53-57, 65-70]. Plaintiff requested an administrative hearing, which was conducted before Administrative Law Judge Sharilyn Hopson (the "ALJ") on March 29, 2011. [AR 28-46]. Plaintiff, who was represented by an attorney, appeared telephonically and testified on his own behalf. [AR 30-42]. Testimony also was received from Troy Scott, a vocational expert. [AR 42-45].

On April 1, 2011, the ALJ issued a written decision denying plaintiff's application for SSI benefits. [AR 17-24]. The ALJ found that plaintiff had the following severe impairments: asthma, mood disorder, intermittent explosive disorder, antisocial personality disorder, and methamphetamine dependence. [AR 19]. The ALJ determined, however, that plaintiff's impairments, singly or in combination, did not meet or equal an impairment included in the Listing of Impairments (the "Listing"). [AR 19-20]. See 20 C.F.R. Pt. 404, Subpt. P, App. 1. The ALJ further found that plaintiff retained the residual functional capacity ("RFC") "to perform a full range of work at all exertional levels but with the following nonextertional limitations: no exposure to extreme hot, extreme cold, dust, fumes, and other pollutants; simple repetitive tasks; no work around children; no public contact; and only non-intense contact with coworkers and supervisors." [AR 20-22]. The ALJ found that plaintiff's RFC precluded him performing his past relevant work as a plumber, warehouse worker, and forklift driver. [AR 22]. Based on the testimony of the vocational expert ("VE"), however, the ALJ determined that plaintiff could perform alternative jobs that exist in significant numbers in the national economy. [AR 23]. Specifically, the ALJ found that plaintiff could perform the alternative jobs of hand packager, packaging machine operator, and electronics worker. [AR 23]. Accordingly, the ALJ concluded that plaintiff was not disabled at any time up to the date of her decision. [AR 24]. The Appeals Council denied plaintiff's request for review. [AR 1-4].

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, Soc. Sec. Admin. , 169 F.3d 595, 599 (9th Cir. 1999)).

Statement of Disputed Issue

The only disputed issue is whether there is a conflict between the Dictionary of Occupational Titles ("DOT") and the ALJ's finding that plaintiff can perform alternate jobs of hand packer, packing machine operator, and electronics worker. [JS 3].


Plaintiff contends that the ALJ erred in finding that he was not disabled because an unresolved conflict exists between the ALJ's finding that plaintiff's RFC allows him to perform alternative work as a hand packager, electronics worker, and packaging machine operator and the classification of those jobs in the DOT. [JS 3-4].

At step five of the sequential evaluation procedure, the Commissioner has the burden of establishing, through the testimony of a VE or by reference to the Medical-Vocational Guidelines, that the claimant can perform other jobs that exist in substantial numbers in the national economy. Bruton v. Massanari , 268 F.3d 824, 827 n.1 (9th Cir. 2001). "Where the testimony of a VE is used at Step Five, the VE must identify a specific job or jobs in the national economy having requirements that the claimant's physical and mental abilities and vocational qualifications would satisfy." Osenbrock v. Apfel , 240 F.3d 1157, 1162-1163 (9th Cir. 2001).

Under Ninth Circuit law and Social Security Ruling ("SSR") 00-4p[1], an ALJ may not rely on a VE's testimony regarding the requirements of a particular job without first inquiring whether that testimony conflicts with the DOT. Massachi v. Astrue , 486 F.3d 1149, 1152 (9th Cir. 2007). A VE's "testimony may give rise to such a conflict in at least two different ways. First, the vocational expert may testify that a particular job requires a particular exertional or skill level, when the DOT expressly provides that the job requires a different exertional level." Carey v. Apfel , 230 F.3d 131, 144 n.2 (5th Cir. 2000). "A second, and different type of conflict may arise when the [VE's] testimony places the ALJ's finding with respect to the claimant's residual functional capacity or the claimant's specific impairments in conflict with the exertional or skill level or the specific skills required for the identified jobs in the DOT." Carey , 230 F.3d at 144 n.2.

Neither the DOT nor the vocational expert's testimony "automatically trumps when there is a conflict." Massachi , 486 F.3d at 1153 (footnote omitted). If an apparent conflict exists, the ALJ must obtain an explanation for any apparent conflict, determine whether the vocational expert's explanation is reasonable, decide whether a basis exists for relying on the expert rather than on the DOT, and explain how he or she resolved the conflict. Massachi , 486 F.3d at 1152-1153; see SSR 00-4p, 2000 WL 1898704, at *2-*4. This procedural requirement "ensure[s] that the record is clear as to why an ...

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