United States District Court, C.D. California, Eastern Division
LISA A. DIXON DUNN, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.
MEMORANDUM OF DECISION
J. WISTRICH United States Magistrate Judge
filed this action seeking reversal of the decision of
defendant, the 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.
procedural facts are summarized in the joint stipulation.
[See JS 2]. In a written hearing decision that
constitutes the Commissioner’s final decision in this
matter, the Administrative Law Judge (“ALJ”)
concluded that plaintiff was not disabled because her
residual functional capacity (“RFC”) did not
preclude her from performing alternative jobs available in
significant numbers in the national economy. [JS 2;
Administrative Record (“AR”) 10-22].
Commissioner’s denial of benefits should be disturbed
only if it is not supported by substantial evidence or is
based on legal error. Brown-Hunter v. Colvin, 806
F.3d 487, 492 (9th Cir. 2015); 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 v. Barnhart, 278
F.3d 947, 954 (9th Cir. 2002) (citing Morgan v.
Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th
contends that the ALJ erred in finding that plaintiff could
perform the alternate jobs of assembler, inspector, and
stuffer identified in the ALJ’s decision because the
demands of those jobs exceed her RFC as found by the ALJ.
five of the sequential evaluation, 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 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).
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, and stating
that an ALJ may rely on expert testimony that contradicts the
DOT “only insofar as the record contains persuasive
evidence to support the deviation”) (citing Villa
v. Heckler, 797 F.2d 794, 798 (9th Cir. 1986)). 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 (stating that before an ALJ
can rely on VE testimony, the ALJ must “[i]dentify and
obtain a reasonable explanation for any conflicts between
occupational evidence provided by VEs” and information
in the DOT and “its companion publication, the Selected
Characteristics of Occupations Defined in the Revised
Dictionary of Occupational Titles, ” and must
“[e]xplain in the determination or decision how any
conflict that has been identified was resolved”). 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.
found that plaintiff could perform a narrowed range of
unskilled light work. [AR 14-15]. One of the nonexertional
limitations he included in plaintiff’s RFC was that
plaintiff “would be off task up to approximately 10% of
a workday or work week (which is about 48 minutes a day or 4
hours a week).” [AR 15]. The ALJ’s hypothetical
questions to the vocational expert (“VE”)
included the limitations incorporated into his RFC finding,
including that “the individual would likely be off task
up to 10[%] of the work day or work week due to chronic
pain.” [AR 49]. The VE testified that such a
hypothetical person could not perform plaintiff’s past
relevant work but could perform the alternative jobs of
assembler, inspector, and stuffer as set forth in the
Dictionary of Occupational Titles
(“DOT”). [AR 47-49]. The VE testified that his
testimony was consistent with the DOT. [AR 49]. Based on the
VE’s testimony, the ALJ concluded that plaintiff
retained the RFC to perform those jobs. [AR 21-22].
contends that being off-task 10% of a workday or workweek
would preclude her from performing any of the jobs identified
by the VE at the substantial gainful activity level because
she would “miss the equivalent of two days of work per
month [and] would be fired from the job. Most companies would
not permit an individual to miss that amount of work on a
regular basis.” [JS 5].
testimony was to the contrary. He testified that being
off-task 10% of the workday or workweek “would be
within most employers’ tolerance. So the jobs would
remain.” [AR 49]. The ALJ then asked if there would be
any erosion in the numbers of those jobs available as a
result of that limitation, and the VE said “no.”
is not a vocational expert. She offers no factual or legal
support whatsoever for her conclusory assertion that the
10% off-task limitation included in her RFC would
preclude performance of the DOT jobs of assembler, inspector,
or stuffer. The VE’s testimony on that point was
competent evidence and unambiguously contradicts plaintiffs
argument. Plaintiff was represented by counsel during the
administrative hearing. Plaintiff s ...