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Vizcarra v. Berryhill

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

April 5, 2018

FERNANDO M. VIZCARRA, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.

          MEMORANDUM OPINION AND ORDER

          DOUGLAS F. MCCORMICK UNITED STATES MAGISTRATE JUDGE

         Fernando M. Vizcarra (“Plaintiff”) appeals from the Social Security Commissioner's final decision denying his applications for Social Security Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). For the reasons discussed below, the Commissioner's decision is affirmed and this matter is dismissed with prejudice.

         I. BACKGROUND

         Plaintiff filed applications for DIB and SSI alleging disability beginning on April 27, 2010. See Administrative Record (“AR”) 13, 206-15. Plaintiff's claims were denied, as was his request for reconsideration. See AR 96-117, 120-26. Plaintiff then requested a hearing before an administrative law judge (“ALJ”). See AR 135-37. On January 13, 2015, the ALJ conducted a hearing at which he heard testimony from a vocational expert (“VE”) and Plaintiff, who was represented by counsel. See AR 30-73.

         On February 23, 2015, the ALJ issued a written decision denying Plaintiff's claims for benefits. See AR 13-25. Despite finding that Plaintiff had severe impairments of a right distal tibia/fibula fracture, status post open reduction internal fixation and hardware removal, and osteoarthritis of the right ankle, the ALJ determined that his impairments did not meet or equal the severity of a listed impairment. See AR 15-16. He also found that Plaintiff retained the residual functional capacity (“RFC”) to perform sedentary work with the following limitations:

[Plaintiff] can lift and/or carry 10 pounds occasionally and less than 10 pounds frequently; he can stand and/or walk for two hours out of an eight-hour workday with regular breaks; he can sit for six hours out of an eight-hour workday with regular breaks; he can occasionally push and/or pull with the right lower extremity; he cannot climb ladders, ropes, or scaffolds; he can occasionally climb ramps and stairs, balance, stoop, and crawl; and he must avoid exposure to all hazards.

AR 16.

         In reaching this conclusion, the ALJ determined that Plaintiff's testimony and other statements about the extent of his limitations were “less than fully credible.” AR 17. The ALJ found that Plaintiff was unable to perform his past relevant work as an audio visual technician or truck driver. See AR 22. However, based on the testimony of the VE, the ALJ found that Plaintiff could perform other work in the national economy: assembler, nut sorter, and final assembler. See AR 23. The ALJ concluded that a finding of “not disabled” was warranted. AR 23-24.

         On June 13, 2016, the Appeals Council denied review of the ALJ's decision, which became the final decision of the Commissioner. See AR 1-6. Plaintiff sought judicial review in this Court. See Dkt. 1.

         II.

         DISCUSSION

         The parties dispute whether “the ALJ could rely upon vocational expert testimony with an apparent conflict with the Occupational Outlook Handbook.” See Joint Submission (Dkt. 29) (“JS”) at 4.

         A. Applicable Law

         At step five of the Commissioner's sequential evaluation process, “the burden shifts to the Commissioner to demonstrate that the claimant is not disabled and can engage in work that exists in significant numbers in the national economy.” Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); see also 20 C.F.R. §§ 404.1566(b), 416.966(b). The Dictionary of Occupational Titles (“DOT”) is the Commissioner's “primary source of reliable job information” and creates a rebuttable presumption as to a job classification. Johnson v. Shalala, 60 F.3d 1428, 1434 n.6, 1435 (9th Cir. 1995); see also Tommasetti v. Astrue, 533 F.3d 1035, 1042 (9th Cir. 2008). Where, as here, 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 ...


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