United States District Court, C.D. California
January 20, 2015
DAISY SAVASLI, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant
For Daisy Savasli, Plaintiff: Steven G Rosales, LEAD ATTORNEY, Law Office of Lawrence D Rohlfing, Santa Fe Springs, CA.
For Carolyn W Colvin, Acting Commissioner of Social Security, Defendant: Assistant U.S. Attorney LA-CV, LEAD ATTORNEY, Office of U.S. Attorney, Civil Division, Los Angeles, CA; Assistant U.S. Attorney LA-SSA, LEAD ATTORNEY, Office of the General Counsel for Social Security Adm., San Francisco, CA; Sundeep R Patel, LEAD ATTORNEY, Office of the United States Attorney, Social Security Administration, San Francisco, CA.
MEMORANDUM DECISION AND ORDER
FREDERICK F. MUMM, United States Magistrate Judge.
Plaintiff brings this action seeking to overturn the decision of the Commissioner of the Social Security Administration denying her application for Supplemental Security Income benefits. Pursuant to the Case Management Order filed on September 20, 2013, the parties filed a Joint Stipulation (" JS") detailing each party's arguments and authorities. The Court has reviewed the administrative record (the " AR"), filed April 7, 2014, and the JS.
On February 18, 2010, plaintiff filed the subject application. Plaintiff's application was denied initially and on reconsideration. Plaintiff thereafter filed a request for a hearing before an administrative law judge (" ALJ"). After the hearing, ALJ Sharilyn Hopson issued a decision denying benefits. Plaintiff sought review of the decision by the Appeals Council, which denied the request.
Plaintiff filed her complaint herein on September 18, 2013.
Plaintiff raises a single issue in this action: whether the ALJ properly determined that plaintiff could perform the work identified by the vocational expert (" VE").
STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether the Commissioner's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means " more than a mere scintilla" but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Desrosiers v. Secretary of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is " such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. This Court must review the record as a whole and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). Where evidence is susceptible to more than one rational interpretation, the Commissioner's decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984). However, even if substantial evidence exists in the record to support the Commissioner's decision, the decision must be reversed if the proper legal standard was not applied. Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1014-15 (9th Cir. 2003); see also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996).
1. Whether there is a DOT inconsistency in the ALJ's holding that plaintiff can perform the jobs of information clerk, assembler-small products I, and office helper.
Claims of disability are evaluated under a five-step sequential procedure. See 20 C.F.R. § 404.1520(a)(4); 20 C.F.R. § 416.920(a)(4). At step four of the procedure, the ALJ must determine whether the claimant has an ability to perform his past relevant work (" PRW"). 20 C.F.R. § 404.1520(a)(4)(iv) and § 404.1560(b); 20 C.F.R. § 416.920(a)(4)(iv) and § 416.960(b). If, at step four of the procedure, the claimant meets his burden of establishing an inability to perform PRW, at step five, the Commissioner has the burden of showing that the claimant can engage in other substantial gainful work that exists in the national economy, taking into account his residual functional capacity (" RFC"), age, education, and work experience. 20 C.F.R. § 416.920(g).
The testimony of a VE may constitute substantial evidence of a claimant's ability to perform work which exists in significant numbers in the national economy when the ALJ poses a hypothetical question that accurately describes all of the limitations and restrictions of the claimant that are supported by the record. See Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999); see also Lewis v. Apfel, 236 F.3d 503, 517 (9th Cir. 2001) (" If the record does not support the assumptions in the hypothetical, the vocational expert's opinion has no evidentiary value").
Here, the ALJ obtained testimony from the VE that, based on the RFC found by the ALJ, plaintiff could perform the jobs of information clerk, assembler-small products I, and office helper. Plaintiff points out that the ALJ is required ask the VE whether the jobs the VE has identified conflict with the information in the Dictionary of Occupational Titles (" DOT") and, if so, to explain the conflict. It is undisputed that the ALJ did not ask this question. This error is subject to review for harmlessness.
Defendant contends that the error was harmless. However, plaintiff contends that the descriptions of these jobs in the DOT are inconsistent with plaintiff's RFC. Specifically, plaintiff asserts that the DOT descriptions do not state that these jobs can be performed by someone who must elevate her feet six inches when sitting and that, therefore, the error was not harmless.
The critical question is whether the DOT job descriptions can be construed as conflicting with plaintiff's RFC. Plaintiff contends that district courts have held that where the DOT is silent as to a restriction a conflict arises as to that restriction. The cases cited by plaintiff on this issue primarily relate to the requirement of a " sit/stand" option. In those cases arguably the nature of the work might have precluded a sit/stand option and further testimony was required to clarify the issue.
Defendant has cited other district court decisions finding that a conflict does not necessarily arise by reason of the absence of any mention in the DOT of a particular restriction. Those cases also primarily addressed the absence of any reference to a sit/stand option in the job descriptions at issue.
In the Court's view, a rigid rule with respect to this issue is inappropriate. Whether a conflict arises in such a situation depends on the nature of the job and the nature of the restriction. Here nothing in the DOT descriptions of the jobs at issue suggests that elevating the legs six inches while seated would have any impact whatsoever on the performance of the job. Stated another way, while seated, plaintiff would not be required to do anything with her feet and presumably could raise them six inches at will.
Moreover, plaintiff's counsel cross-examined the VE but did not ask him any questions regarding the applicability of the restriction at issue to any of the jobs identified by the VE. Particularly where, as here, it is not intuitive that elevating the legs would be precluded by the DOT definition, plaintiff should have raised the issue at the hearing if he wished to preserve it. The VE could have addressed the issue on the record avoiding the entire basis for plaintiff's complaint herein. Under these circumstances, the Court finds that plaintiff has waived the issue.
Therefore, the Court finds the ALJ's error in failing to ask the VE whether information in the DOT conflicted with plaintiff's RFC to be harmless.
For the foregoing reasons, the judgement of the Commissioner is affirmed.
IT IS SO ORDERED.
In accordance with the Memorandum Decision and Order filed concurrently herewith,
IT IS HEREBY ADJUDGED that the decision of the defendant, the Commissioner of Social Security Administration, is affirmed and this action is dismissed with prejudice.