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Bryant v. Colvin

United States District Court, C.D. California, Eastern Division

May 7, 2014

KEVIN BRYANT, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of the Social Security Administration, Defendant.

MEMORANDUM OF DECISION

ANDREW J. WISTRICH, Magistrate Judge.

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

Administrative Proceedings

The parties are familiar with the procedural facts, which are summarized in the joint stipulation. [JS 2]. In a November 8, 2011 written hearing decision that constitutes the Commissioner's final decision in this case, an administrative law judge (the "ALJ") found that plaintiff had no exertional limitations, but that he had nonexertional limitations limiting him to simple and repetitive tasks in a nonpublic environment requiring no intense interpersonal contact with others; no fast-paced work, such as moving assembly lines; no reading, writing, or mathematics above the second-grade level; and no work at unprotected heights or around dangerous machinery. [JS 2; Administrative Record ("AR") 14, 70]. Based on the testimony of a vocational expert ("VE"), the ALJ found that plaintiff's RFC did not preclude him from performing alternative jobs that exist in significant numbers in the national economy, namely the Dictionary of Occupational Titles ("DOT") jobs of hand packager, DOT occupational classification number 920.587-018; packaging machine operator, DOT occupational classification number 920.685-078; and warehouse worker, DOT occupational classification number 922.687-058. Accordingly, the ALJ concluded that plaintiff was not disabled through the date of his decision. [AR 19-25].

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)).

Discussion

The only disputed issue is whether a conflict exists between the DOT's description of the jobs of hand packager, packaging machine operator, and warehouse worker, and the VE's testimony, which the ALJ adopted, that a person with plaintiff's RFC can perform those alternative jobs. [JS 3-13].

At step five, the Commissioner has the burden of establishing, through the testimony of a vocational expert or by reference to the Medical-Vocational Guidelines, that the claimant can perform alternative 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); see Johnson v. Shalala , 60 F.3d 1428, 1435 (9th Cir. 1995) (noting that a rebuttable presumption exists that the job classification information in the DOT controls) (citing Villa v. Heckler , 797 F.2d 794, 798 (9th Cir. 1986)). A VE's "testimony may give rise to such a conflict in at least two different ways. First, the [VE] 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 VE'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 it, determine whether the VE's explanation is reasonable, decide whether a basis exists for relying on the VE 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 ALJ relied on a vocational expert's testimony, particularly in cases where the expert's testimony conflicts with the [DOT]." Massachi , 486 F.3d at 1153.

Plaintiff contends that his nonexertional limitations prohibiting fast-paced work and working around dangerous machinery preclude him from performing the DOT jobs of hand packager and packaging machine operator because the job information in the DOT indicates that those jobs demand the performance of "tasks requir[ing] fast-paced and moving assembly line type work because these tasks need to get completed as quickly as possible." [JS 4-5, 7-8]. Plaintiff also contends that his RFC precludes performance of the DOT job of warehouse worker because that job would require plaintiff to perform public work and work around dangerous machinery. [JS 5-7].

Those contentions lack merit. The ALJ instructed the VE to let him know if any of the VE's testimony conflicted with the DOT. [AR 68]. The VE agreed to do so and did not indicate that any such conflict existed. [AR 68-73]. Furthermore, the DOT occupational classifications for the jobs of packaging machine operator, hand ...


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