United States District Court, C.D. California, Eastern Division
JEFFREY J. IBACH, 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 applications 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 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].
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 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].
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).
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
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
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