United States District Court, C.D. California
MEMORANDUM OPINION AND ORDER
E. SCOTT United States Magistrate Judge.
Demitri Corbin (“Plaintiff”) appeals the final
decision of the Social Security Commissioner denying his
applications for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”). For the reasons discussed below, the
Commissioner's decision is AFFIRMED.
graduated from college with bachelor's degree in acting
and directing. Administrative Record (“AR”) 59.
For more than twenty years, he worked in the catering
industry as a waiter, bartender, and banquet captain while
also pursuing his interest in the performing arts. AR 60. In
May 11, 2012, he injured his back in an industrial accident
while helping coworkers push a heavy pallet of bar products
up a ramp. AR 62, 1026. Pushing pallets was
“out of [his] job description, ” but he was
trying to help a short-staffed loading crew. Id. A
November 2012 MRI revealed lumbar spine disc injuries, and he
underwent reparative surgery in August 2013. AR 65, 726. As
early as May 2013, he sought authorization through his
employer's workers' compensation insurer to obtain a
cervical MRI, but he did not obtain one until July
2014. AR 66, 761. Based on those MRI results, in
January 2016, he had multi-level cervical spine fusion
surgery. AR 67.
filed his relevant benefits application in May and June of
2015, alleging a disability onset date of May 12, 2012. AR
252-57. An Administrative Law Judge (“ALJ”)
conducted a hearing on June 4, 2016, at which Plaintiff, who
was represented by an attorney, appeared and testified. AR
55-99. The ALJ issued an unfavorable decision on August 16,
2016. AR 33-54.
found that Plaintiff does not suffer from any severe mental
impairment. AR 39. The ALJ, however, found that Plaintiff
suffers from the severe physical impairments of lumbar and
cervical degenerative disc disease (status post two
surgeries) and left middle trigger finger. AR 39. Despite
these impairments, the ALJ found that Plaintiff retained the
residual functional capacity (“RFC”) to perform
light exertional work with additional limitations on certain
postural and manipulative activities. AR 41. Due to his
cervical spinal fusion surgery, the ALJ precluded Plaintiff
from work that requires “turning his head from side to
side.” AR 42.
on this RFC and the testimony of a vocational expert
(“VE”), the ALJ found that Plaintiff could
perform his past relevant work as a waiter, bartender,
theater arts teacher, teacher's aide, or banquet captain
(as generally performed, not as actually performed). AR 48.
Based on these findings, the ALJ concluded that Plaintiff was
not disabled. Id.
One: Whether the ALJ satisfied his obligations under
Social Security Ruling (“SSR”) 00-4p which
requires ALJs to “[i]dentify and obtain a reasonable
explanation for any conflicts between occupational evidence
provided by VEs … and information in the Dictionary of
Occupational Titles (DOT) … and [e]xplain in the
determination or decision how any conflict that has been
identified was resolved.” Dkt. 17, Joint Stipulation
(“JS”) at 3.
is silent concerning the head-turning requirements of listed
jobs. Plaintiff argues that whenever a VE testifies about a
job requirement not in the DOT, the ALJ must obtain an
explanation of the VE's opinion. Plaintiff further argues
that the explanation the VE gave in this case was not legally
sufficient. JS at 9.
Two: Whether the ALJ erred in discounting
Plaintiff's testimony concerning the limiting effects of
his impairments. JS at 3.
Three: Whether the ALJ's assessment of the medical
evidence is supported by substantial evidence. Id.
ease of discussion, the Court divided Issue Three into the
following three sub-issues:
Three A: Whether the case should be remanded to permit
the ALJ to consider Plaintiff's new evidence.
Three B: Whether the ALJ erred in finding that Plaintiff
does not suffer from a severe mental impairment.
Three C: Whether the ALJ's RFC determination is
supported by substantial evidence.
Issue One: Alleged Conflict between the DOT and the
Relevant Administrative Proceedings.
hearing, the ALJ asked the VE if a hypothetical person with
all the restrictions in Plaintiff's RFC - except the
restriction against turning his head from side to side -
could do Plaintiff's past relevant jobs. AR 94. The VE
testified that the hypothetical person could work as a
waiter, bartender, theater arts teacher, or teacher's
aide. Id. The VE also explained that the
hypothetical person could work as a banquet captain as that
job is described in the DOT (i.e., light work) but not as
Plaintiff performed it (i.e., medium work). AR 93-94.
next asked the VE to consider the same hypothetical person,
but add a restriction that he could not turn his head side to
side. AR 97. The VE testified that the additional restriction
did not change her opinions, saying, “I don't know
why you could not turn your body.” Id. The VE
subsequently affirmed that her testimony was consistent with
the DOT and “supplemented by continuing education,
other vocational resources, and experience.” AR 98.
relied on the VE's testimony to find that Plaintiff could
perform his past relevant work. AR 48.
may not rely on a VE's testimony regarding the
requirements of a job without first inquiring whether the
testimony conflicts with the DOT. Massachi v.
Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 2007) (citing
SSR 00-4p). If there is a conflict between the VE's
testimony and the DOT, an ALJ must determine whether there is
a reasonable explanation for the deviation. Id.
Reasonable explanations for deviating from the DOT include
that the DOT “does not provide information about all
occupations, information about a particular job not listed in
the [DOT] may be available elsewhere, and the general
descriptions in the [DOT] may not apply to specific
situations.” Id. at 1153, n.17 (citing SSR
00-4p). “The procedural requirements of SSR 00-4p
ensure that the record is clear as to why an ALJ relied on a
vocational expert's testimony ….”
Id. at 1153.
Ninth Circuit has not addressed in a published decision the
question of whether an apparent conflict with the DOT arises
when the DOT is silent as to a particular mental or physical
requirement. Unpublished decisions go each way. Compare
Dewey v. Colvin, 650 Fed.Appx. 512, 514 (9th Cir. 2016)
(finding no conflict between sit/stand option and DOT because
“the DOT is silent on whether the jobs in question
allow for a sit/stand option”), with Buckner-Larkin
v. Astrue, 450 Fed.Appx. 626, 628-29 (9th Cir. 2011)
(finding “conflict” between at-will sit/stand
option and DOT was adequately addressed by VE based on
VE's own research and experience). This Court declines to
find that a conflict always exists when the DOT is silent and
instead adopts a case-by-case approach. See Wester v.
Colvin, 2015 WL 4608139, *5 (C.D. Cal. July 31, 2015)
(“[W]hen a VE relies on a functional limitation about
which the DOT is silent or unclear, a conflict may exist
depending upon the circumstances of the case.”). For
example, in Gutierrez v. Colvin, 844 F.3d 804, 807
(9th Cir. 2016), the Ninth Circuit found no “obvious or
apparent” conflict that triggered the ALJ's duty to
inquire further where the VE opined that a claimant precluded
from overhead reaching with her right arm could work as a
cashier, where the DOT description required frequent reaching
but did not specify in what direction. The Ninth Circuit
reasoned that it was “unlikely and unforeseeable”
that a cashier would need to reach overhead, and even more
rare for one to need to reach overhead with both arms.
Id. at 808-09 and 809 n.2. In contrast, the Ninth
Circuit found a conflict in Lamear v. Berryhill, 865
F.3d 1201, 1205 (9th Cir. 2017), because the court could not
“say that, based on common experience, it is likely and
foreseeable that an office helper, mail clerk, or parking lot
cashier with limitations on his ability to ‘handle,
finger and feel with the left hand' could perform his
the VE opined that Plaintiff could perform teaching jobs
(i.e., teacher's aide and theater arts teacher) and food
service jobs (i.e., bartender, waiter, and banquet captain)
despite his inability to turn his head side to side. AR 97.
As Plaintiff points out, the likely and foreseeable way these
jobs are performed includes the need to look at many people,
and thus to look in different directions. JS at 5-6. This
potential inconsistency triggered the ALJ's duty to
inquire under SSR 00-4p.
here had no need to inquire because the VE spontaneously
explained her testimony. The VE explained that someone
performing those jobs could meet the need to look in
different directions by turning his body rather than turning
his neck. AR 97.
argues that this is not a “reasonable
explanation” as required by SSR 00-4p. Plaintiff claims
that the VE's testimony that a worker who must look in
different directions can do so by turning his body is nothing
more than “a personalized hunch.” JS at 9.
VE's recognized expertise provides the necessary
foundation for his or her testimony.” Bayliss v.
Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005).
Claimants, especially when represented by counsel, cannot
argue that a VE's testimony lacks foundation when they
fail to question the VE at the hearing about the challenged
testimony. Lang v. Comm'r of SSA, 2014 WL
1383247, at *5 (E.D. Cal. Apr. 8, 2014) (“Plaintiff
chose not to inquire as to the VE's methodology at the
hearing and now attempts to prove that the numbers were made
up due to the absence of evidence that the numbers were not
made up - a void in the record that Plaintiff chose not to
VE's testimony is substantial evidence if “a
reasonable mind might accept [it] as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S.
389, 401 (1971). A reasonable mind might accept that a person
who cannot turn his head side to side could nevertheless
perform Plaintiff's past relevant work by turning his
body when he needs to look in different directions. Indeed,
Plaintiff testified that he can still drive, an activity that
constantly requires looking in different directions, despite
being unable to turn his head side to side. AR 88. The ALJ
did not err in relying on the VE's adequately explained
Issue Two: Plaintiff's Pain Testimony.
Rules for Evaluating Claimants' Subjective
ALJ's assessment of symptom severity and claimant
credibility is entitled to “great weight.”
Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir.
1989); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir.
1986). “[T]he ALJ is not ‘required to believe
every allegation of disabling pain, or else disability
benefits would be available for the asking, a result plainly
contrary to 42 U.S.C. § 423(d)(5)(A).'”
Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir.
2012) (citation omitted).
ALJ finds testimony as to the severity of a claimant's
pain and impairments is unreliable, “the ALJ must make
a credibility determination with findings sufficiently
specific to permit the court to conclude that the ALJ did not
arbitrarily discredit claimant's testimony.”
Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir.
2002). In doing so, the ALJ may consider testimony from
physicians “concerning the nature, severity, and effect
of the symptoms of which [the claimant] complains.”
Id. at 959 (citation omitted). If the ALJ's
credibility finding is supported by substantial evidence in
the record, courts may not engage in second-guessing.
evaluating a claimant's subjective symptom testimony, the
ALJ engages in a two-step analysis. Lingenfelter v.
Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007).
“First, the ALJ must determine whether the claimant has
presented objective medical evidence of an underlying
impairment ‘which could reasonably be expected to
produce the pain or other symptoms alleged.'”
Id. at 1036 (citation omitted). If so, the ALJ may
not reject a claimant's testimony “simply because
there is no showing that the impairment can reasonably
produce the degree of symptom alleged.”
Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir.
if the claimant meets the first test, the ALJ may discredit
the claimant's subjective symptom testimony only if he
makes specific findings that support the conclusion.
Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir.
2010). Absent a finding or affirmative evidence of
malingering, the ALJ must provide “clear and
convincing” reasons for rejecting the claimant's
testimony. Lester v. Chater, 81 F.3d 821, 834 (9th
Cir. 1995); Ghanim v. Colvin, 763 F.3d 1154, 1163
& n.9 (9th Cir. 2014). The ALJ must consider a
claimant's work record, observations of medical providers
and third parties with knowledge of claimant's
limitations, aggravating factors, functional restrictions
caused by symptoms, effects of medication, and the
claimant's daily activities. Smolen, 80 F.3d at
1283-84 & n.8. “Although lack of medical evidence
cannot form the sole basis for discounting pain testimony, it
is a factor that the ALJ can consider in his credibility
analysis.” Burch v. Barnhart, 400 F.3d 676,
681 (9th Cir. 2005).
are two ways for an ALJ to “use daily activities to
form the basis of an adverse credibility determination: if
the claimant's activity contradicts his testimony or if
the claimant's activity meets the threshold for
transferable work skills.” Phillips v. Colvin,
61 F.Supp.3d 925, 944 (N.D. Cal. 2014). The first way is
satisfied if a claimant gives contradictory testimony about
his activities or if there are “contradictions between
[the claimant's] reported activities and his asserted
limitations.” Morgan v. Comm'r of the SSA,
169 F.3d 595, 600 (9th Cir. 1999). The second way is
satisfied “[i]f a claimant is able to spend a
substantial part of his day engaged in pursuits involving the
performance of physical functions that are transferable to a
work setting ….” Id.
The ALJ's Evaluation of Plaintiff's
completed an Adult Function Report. AR 305-13. The ALJ gave
this report's description of Plaintiff's activities
“significant probative weight” because it was
consistent with other evidence concerning Plaintiff's
activities (i.e., a third-party report completed by his
friend, Patricia Lawson, and Plaintiff's medical progress
notes). AR 47.
hearing, Plaintiff testified that he could not lift more than
ten pounds because his doctor had restricted him from doing
so. AR 71. He also testified that if he uses his hands to
write or type for more than fifteen or twenty minutes, then
he experiences “numbness and tingling” and must
stop. AR 71-72. He estimated that he could continuously stand
for one hour, sit for two hours, and walk for one and a half
hours. AR 74-76. After a one-hour therapy walk in the
morning, he can do additional walking later to run errands.
AR 77. Even if he mixes up standing and walking, he cannot
sustain those activities for five or six hours per day. AR
75. He lies down between thirty and sixty minutes each day.
his mental impairments, Plaintiff reported that his anxiety
prevents him from going to crowded places alone. AR 308. On a
checklist with nineteen functional abilities potentially
affected by his condition, Plaintiff checked all nineteen,
including hearing, seeing, memory, ...