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Ibach v. Colvin

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

February 15, 2017

JEFFREY J. IBACH, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

MEMORANDUM OF DECISION

          ANDREW J. WISTRICH United States 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. The parties have filed a Joint Stipulation (“JS”) setting forth their contentions with respect to each disputed issue.

         Administrative Proceedings

         The procedural facts are summarized in the Joint Stipulation. [See JS 2]. In an April 23, 2014 written hearing decision that constitutes the Commissioner's final decision in this matter, the Administrative Law Judge (“ALJ”) found that plaintiff retained the residual functional capacity (“RFC”) to perform a restricted range of light work. Based on this RFC, the ALJ determined that plaintiff could not perform his past relevant work, but that he could perform alternative work available in significant numbers in the national economy. Specifically, the ALJ found that plaintiff could perform the following jobs listed in the Dictionary of Occupational Titles (“DOT”): cashier (DOT code 211.462-010), storage facility clerk (DOT code 295.367-026), and office helper (DOT code 239.567.101). [Administrative Record (“AR”) 26-28]. Accordingly, the ALJ found plaintiff not disabled at any time from April 20, 2011, his alleged onset date, through the date of the ALJ's decision. [AR 28].

         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. 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 Cir. 1999)).

         Discussion

         Plaintiff contends that the ALJ impermissibly relied on testimony from the vocational expert (“VE”) that deviated from the DOT without adequate explanation, and therefore that the ALJ erred at step five of the sequential evaluation procedure. According to plaintiff, the three alternative DOT jobs identified by the ALJ do not conform to the RFC limitations permitting plaintiff to be off-task up to 10% of the workday, and precluding him from performing work above the shoulder with his dominant right arm. [JS 6-8]. Plaintiff also contends that he cannot perform the job of office helper because he cannot stand or walk for more than twenty to thirty minutes at a time, and he cannot work as a storage facility clerk because he is prohibited from performing work requiring hypervigilance. [JS 9].

         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 his past work or 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).

         The ALJ must pose hypothetical questions that set out all of the claimant's impairments for the VE to consider, and then the VE “translates these factual scenarios into realistic job market probabilities . . . .” Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999). Hypothetical questions posed to the VE must accurately describe all of the limitations and restrictions of the claimant that are supported by substantial evidence in the record. Robbins, 466 F.3d at 886; Tackett, 180 F.3d at 1101. The ALJ “is free to accept or reject restrictions in a hypothetical question that are not supported by substantial evidence.” Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006) (quoting Osenbrock, 240 F.3d at 1164-1165). In order to support a finding that the claimant can perform jobs in the national economy, any hypothetical question posed to a VE must reflect all of the claimant's limitations. Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993); DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991).

         After consideration of all the evidence, ALJ determined that plaintiff retained the RFC

to perform light work as defined in 20 CFR [§] 404.1567(b) except he could stand and/or walk for a total of six hours out of an eight-hour workday, but for no more than 20 to 30 minutes at a time; he could sit for six hours out of an eight-hour workday, with brief position changes after approximately one hour; he could occasionally bend, stoop, climb steps, and balance; he could not kneel, crawl, squat, or crouch; he could not climb ladders, ropes or scaffolds; he could not work at unprotected heights, around moving machinery or other hazards; he could not do above-the-shoulder work with the right dominant arm; he could not do repetitive or constant pushing or pulling with the lower extremities, such as operating foot pedals; he could not do fast-paced or assembly line type of work; he could not do work requiring hypervigilance or intense concentration on a particular task, meaning that jobs should be precluded if the very nature of the job would be such that an individual could not be off-task for the shortest amount of time, like watching a surveillance monitor or where safety might be an issue; and he would likely be off-task up to 10% of the workday or workweek due to chronic pain or side effects of medications.

[AR 21-22].

         At the hearing, the ALJ asked the VE if a hypothetical person of plaintiff's age, education, work experience, and RFC could perform any work currently available in the national economy. [AR 53-54]. The ALJ omitted the off-task restriction in her first iteration of the hypothetical. [AR 53-54]. The VE identified three light work occupations that such a hypothetical person could perform: cashier, storage facility clerk, and office helper. The VE noted that there would be approximately a 50% job erosion in the cashier job to permit ...


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