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Vargas v. Berryhill

United States District Court, E.D. California

May 12, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1]Defendant.




         On June 19, 2015, Plaintiff Refugio Vargas (“Plaintiff”) filed a complaint seeking judicial review of a final decision of an administrative law judge's (“ALJ”) denial of his applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) pursuant to Titles II and XVI of the Social Security Act. (Doc. 1). On February 3, 2017, the Court issued an order affirming the ALJ's decision and entered a judgment in favor of the defendant, Nancy Berryhill, and against Plaintiff. (Docs. 26 and 27). On February 21, 2017, Plaintiff timely filed a Motion to Amend the Judgment pursuant to Rule 59 (Doc. 28), which the Commissioner of Social Security (“the Commissioner” or “Defendant”) opposed. (Doc. 30). Plaintiff filed a Reply on April 4, 2017. (Doc. 31). For the reasons set forth below, Plaintiff's motion is DENIED.


         A. Background

         In the appeal to this Court, Plaintiff argued that the ALJ improperly found he could work as a packager and kitchen helper because the ALJ did not properly acknowledge that there was a conflict between the vocational expert's (“VE”) opinion and the Dictionary of Occupational Titles (“DOT”). Specifically, he contended that pursuant to the DOT, a kitchen helper and a packager are required to constantly reach in all directions and that the VE and the ALJ erred in finding he could perform these jobs notwithstanding that Plaintiff had a limitation of occasionally (less than two hours in an eight hour day) reaching at shoulder length or above with his non-dominant arm.[3] (Doc. 19).

         The Court found that the ALJ improperly determined that Plaintiff could perform his past work as a packager. However, that the error was harmless because Plaintiff could perform work as a kitchen helper. (Doc. 26). In doing so, the Court applied the standards outlined in Gutierrez v. Colvin, 844 F.3d 804, 808 (9th Cir. 2016), and explained that an ALJ's duty to inquire about a conflict between the DOT and a VE's testimony is fact-specific and is only required when the conflict is either obviously or apparently contrary to the DOT. (Doc. 26, pgs. 6-8). The Court examined the duties of a kitchen helper and concluded that similar to Gutierrez, the ALJ did not err since it was not obvious that the job of kitchen helper requires overhead reaching, especially as Plaintiff's limitation only restricted the use of his non-dominant hand for less than two hours in an eight hour day. (Doc. 26, pg. 10). The Court found that the ALJ's decision applied the proper legal standards and was supported by substantial evidence. In the instant motion, Plaintiff argues that the Court erred in its analysis and requests that the judgment be amended.


         A. Legal Standard

         District courts may alter or amend its judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. While Rule 59(e) allows for an amendment, “the rule offers an ‘extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources'.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir.2003) quoting 12 James Wm. Moore et al., Moore's Federal Practice § 59.30 [4] (3d ed. 2000). There are four grounds upon which a Rule 59(e) motion may be granted: 1) the motion is “necessary to correct manifest errors of law or fact upon which the judgment is based;” 2) the moving party presents “newly discovered or previously unavailable evidence;” 3) the motion is necessary to “prevent manifest injustice;” or 4) there is an “intervening change in controlling law.” Turner v. Burlington Northern Santa Fe Railroad Co., 338 F.3d 1058, 1063 (9th Cir. 2003) (quoting McDowell v. Calderon, 197 F.3d 1253, 1254 n. 1 (9th Cir.1999)). A motion to amend judgment under Rule 59(e) “may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.” Exxon Shipping Co. v. Baker, 554 U.S. 471, 486 n. 5, 128 S.Ct. 2605 (2008).

         B. The Court Did Not Clearly Err

         Although not entirely clear from Plaintiff's motion, he appears to argue that the Court's decision is based on a manifest error because it mischaracterized his argument and focused on whether Plaintiff could occasionally reach overhead with his non-dominant arm as opposed to Plaintiff's actual limitation which included occasional reaching at shoulder level or above. (Doc. 28, pgs. 4-6 and Doc. 31, pgs. 3-6). He also argues that a review of the VE's testimony reveals that the VE similarly misunderstood the limitation, and therefore erroneously gave testimony that a kitchen helper did not require more than overhead reaching as opposed to reaching at shoulder level or above. Id.

         Plaintiff's distinction that this limitation entails reaching at shoulder level or above as opposed to overhead reaching does not change the Court's analysis or conclusion. First, Plaintiff's arguments with regard to this issue as it pertains to the kitchen helper job were vague in his initial pleadings.[4] Second, the Court understood Plaintiff's limitation as it clearly articulated it in it's decision when discussing Plaintiff's Residual Functional Capacity (“RFC”).[5] Finally, a review of the transcript of the administrative hearing reveals that the VE also understood the limitation. During the hearing, the ALJ presented a hypothetical to the VE that included the limitation of using the left non-dominant arm to reach at shoulder level or above for less than two hours in an eight-hour day. AR 432. The VE testified that a worker with this limitation could work as a packager. AR 433. However, the ALJ asked the VE to give him an example of one or two jobs that a person with these limitations could do. AR 432-433. The VE stated, “At the medium level such a hypothetical individual could be a kitchen helper - 318.687-010 unskilled, SVP 2 and medium physical demand. It is basically a dishwasher, but they do other activities as well in the kitchen. There are in the national economy in excess of half a million such positions, and in the State of California 67, 000 plus positions.” AR 433.

         It is clear from this testimony that the VE believed that Plaintiff could perform the work as a kitchen helper despite his ability to only occasionally reach at shoulder level or above for less than two hours per day with his non-dominant hand. Plaintiff correctly points out that after the VE identified the kitchen helper job, the VE stated, “it is real difficult to identify medium jobs that do not have reaching above shoulder frequently.” AR 433. The VE indicated that he would need to go to the light level to find additional jobs that Plaintiff could perform. AR 433. The ALJ did not ask for additional jobs, although the ...

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