The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 ROMESHA G.1, Case No. 5:19-cv-00949-GJS
12 Plaintiff
13 v. MEMORANDUM OPINION AND
ORDER
14 ANDREW SAUL, Commissioner of
Social Security,
15
Defendant.
16
17 I. PROCEDURAL HISTORY
18 In October 2015, Plaintiff, then a minor, filed an application for Supplemental
19 Security Income (“SSI”). [AR 257-63.] Plaintiff alleged she became disabled in
20 1996, and was found disabled as a child. Upon attaining the age of eighteen, the
21 Social Security Administration (“SSA”) was required to make a redetermination of
22 Plaintiff’s status applying the adult disability standards. [AR 102-05, 125-27.] On
23 March 20, 2018, Plaintiff appeared and testified at a hearing before an
24 Administrative Law Judge (“ALJ”), who later found her not disabled. [AR 12-57.]
25
26
27 1 In the interest of privacy, this Order uses only the first name and the initial of
the last name of the non-governmental party in this case.
28
1 The Appeals Council denied review on March 22, 2019. [AR 1-3.]
2 Plaintiff timely filed the present action seeking review in the District Court.
3 The parties filed consents to proceed before the undersigned United States
4 Magistrate Judge briefs addressing the single issue presented. [Dkts. 16 (Pl.’s Brf.),
5 19 (Df.’s Brf.) and 20 (Pl.’s Reply).] The matter is now ready for decision. For the
6 reasons discussed below, the Court finds that this matter should be affirmed.
7
8 II. ADMINISTRATIVE DECISION UNDER REVIEW
9 The ALJ issued an unfavorable decision on April 27, 2018. The ALJ
10 correctly stated that individuals who are eligible for SSI benefits as children must
11 have their disability redetermined under the rules for disability used for adults when
12 they attain the age of majority. [AR 15.] The medical improvement review
13 standard does not apply in such situations. [AR 16.] The ALJ thus applied the five-
14 step sequential evaluation process used for adults who file new applications for SSI.
15 See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
16
At step one, the ALJ noted that Plaintiff had been found disabled as a child.
17
Thus, she had not engaged in substantial gainful activity since her alleged onset date
18
[AR 17]. At step two, the ALJ determined that Plaintiff suffered from the severe
19
impairments of asthma, allergies, migraines versus tension headache, anemia, failure
20
to thrive, leukopenia, and mood disorder due to general medical condition. [AR 17,
21
citing 20 C.F.R. 416.920(c)).] The ALJ determined at step three that Plaintiff did
22
not have an impairment or combination of impairments that meets or medically
23
equals the severity of one of the impairments listed in Appendix I of the
24
Regulations, (“the Listings”) [AR 16]. See 20 C.F.R. Pt. 404, Subpt. P, App. 1.
25
Next, the ALJ found that Plaintiff had the residual functional capacity (“RFC”) to
26
perform light work as defined in 20 C.F.R. 416.967(b) except as follows:
27 She can occasionally lift 10 pounds and rarely lift 20 pounds, but is
precluded from frequent lifting; she can stand and walk for four hours
28 in an eight hour workday; she can sit for four hours in an eight hour
1 mtwuisstt ,a avnodi dc oeuxlpdo soucrcea stoio anlal lelyn vpierrofnomrmen atlall o itrhrietra nptoss; tsuhrea lm acutsitv witioersk; sinh ea
2 climate controlled environment; she cannot climb ropes or scaffolds;
she can concentrate for up to two hour periods of time, but would be
3 limited to unskilled tasks with only occasional interaction with the
general public; she is precluded from fast-paced production or
4 assembly line-type work; and she is precluded from jobs requiring
hypervigilance or intense concentration on a particular task, meaning
5 she is precluded from work where the claimant could not be off task for
even the shortest amount of time, like watching a surveillance monitor
6 or where the claimant would be responsible for the safety of others.
7
[AR 18.]
8
Plaintiff raises a single issue in her challenge to the ALJ’s findings and
9
determination of non-disability: whether the ALJ erred in accepting the testimony
10
of the Vocational Expert (“VE”), where Plaintiff contends that the expert’s
11
testimony was “in plain contradiction” to the Dictionary of Occupational Titles and
12
the alleged conflict between the DOT job requirements and Plaintiff’s RFC was
13
insufficiently explained. [Pl.’s Brf. at 2.] Plaintiff requests reversal and remand for
14
further administrative proceedings or for payment of benefits. [Pl.’s Brf. at 17-18
15
(only requesting remand); Pl.’s Reply at 3-4 (alternatively requesting payment of
16
benefits).] The Commissioner asserts that the ALJ’s decision should be affirmed.
17
[Df.’s Brf. at 7.]
18
19
III. GOVERNING STANDARD
20
Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to
21
determine if: (1) the Commissioner’s findings are supported by substantial
22
evidence; and (2) the Commissioner used correct legal standards. See Carmickle v.
23
Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Brewes v. Comm’r
24
Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012) (internal citation omitted).
25
“Substantial evidence is more than a mere scintilla but less than a preponderance; it
26
is such relevant evidence as a reasonable mind might accept as adequate to support a
27
28
1 conclusion.” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir.
2 2014) (internal citations omitted).
3 The Court will uphold the Commissioner’s decision when the evidence is
4 susceptible to more than one rational interpretation. Molina v. Astrue, 674 F.3d
5 1104, 1110 (9th Cir. 2012). However, the Court may review only the reasons stated
6 by the ALJ in his decision “and may not affirm the ALJ on a ground upon which he
7 did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court will not
8 reverse the Commissioner’s decision if it is based on harmless error, which exists if
9 the error is “inconsequential to the ultimate nondisability determination, or if despite
10 the legal error, the agency’s path may reasonably be discerned.” Brown-Hunter v.
11 Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations
12 omitted).
13
14 IV. DISCUSSION
15 A. Vocational Expert’s Testimony
16 Plaintiff contends the ALJ erred by relying on the testimony of the vocational
17 expert (“VE”) that Plaintiff could perform the representative jobs of bench
18 assembler, an unskilled job at an SVP of 2, sticker, an unskilled job with an SVP of
19 1, and buckle-wire inserter, another unskilled job with an SVP of 1. The vocational
20 expert testified that there were significant jobs within the national economy
21 considering these positions (a conclusion that the parties do not challenge). [AR 52-
22 53.]
23 The vocational expert’s testimony was based on four hypothetical questions
24 presented by the ALJ, only two of which are relevant here, where the second
25 hypothetical builds on the first:
26 ALJ: I would like you to consider a younger individual with a high
school education and no past relevant work. . . . The first
27 [hypothetical] has to do with there are no exertional limitations, but the
individual should avoid concentrated exposure to fumes, odors, gases,
28 or other pulmonary irritants as well as extreme temperatures; no
1 The individual can concentrate for up to two-hour periods of time, but
2 would be limited to unskilled tasks with only occasional interaction
with the public; no fast-paced or production or assembly line type
3 work. When I said no outside work, what I really mean is there would
have to be a climate-controlled environment. No jobs requiring
4 hypervigilance or intense concentration on a particular task.
5 And what I mean by this limitation is if I could preclude work where
the work is such that the person couldn’t be off task for even the
6 shortest amount of time, something like watching a surveillance
monitor or aware of the safety of the – this individual would be
7 responsible for the safety of others. So those would not be appropriate
work environments. Given these limitations, would this individual be
8 able to do any work that exists in the national economy. And if so, can
you give me three examples?
9
VE: Yes. There would be some jobs. [Light exertional jobs such as
10 electronics worker; small products assembler; and hand packager.]
11 ALJ: All right. Let me give you a second hypothetical and this adding
onto the first. And I’m going to give you some exertional limitations as
12 well. The individual can occasionally lift 10 pounds, rarely lift 20
pounds, no frequent lifting. The standing and walking is four out of
13 eight, the sitting is six out of – four out of eight.
14 The individual would require – they could rarely climb ladders and
stairs; occasionally all other postural; frequently twist; avoid all
15 exposure to all environmental irritants. Given these limitations, would
this individual be able to perform the jobs that you identified in
16 hypothetical number one?
17 [AR 50-52.]
18 Given the above modified hypothetical, the VE responded that three
19 previously identified positions would not be available, but that the three sedentary,
20 unskilled positions identified above – bench assembler, sticker, and buckle-wire
21 inserter – would be appropriate. [AR 52.] With respect to the bench assembler
22 position, the VE testified that “it’s an occupation I’ve evaluated over the years and it
23 is a position where an individual could sit or stand to perform those tasks involved.”
24 [AR 53.] With respect to all three positions, the VE noted that “it is . . . outside the
25 DOT, the sitting and standing for four in eight for each could be accommodated in
26 those positions just based on my experience over the years.” [AR 53.]
27 Finally, the ALJ specifically inquired as to whether the VE’s testimony was
28 otherwise consistent with the DOT:
1 ATiLtlJe:s eIxs cyeoputr w tehsetrime yoonuy’ cvoen aslirsetaednyt wnoitthe dth teh aDt iict’tiso dniafrfyer oefn tO bcacsuepda otino nal
2 your opinion?
3 VE: I believe it’s consistent other than what I’ve addressed.
4 [AR 54.]
5 To ascertain the requirements of occupations as generally performed in the
6 national economy, the ALJ may rely on VE testimony or information from the DOT.
7 Pinto v. Massarani, 249 F.3d 840, 845-46 (9th Cir. 2001). Should an “apparent or
8 obvious” conflict arise between a VE’s testimony regarding the claimant’s ability to
9 perform a certain job and the DOT’s description of that job, “the ALJ must ask the
10 [VE] to reconcile the conflict” and must determine whether the VE’s explanation is
11 reasonable before relying on the VE’s testimony. Gutierrez v. Colvin, 844 F.3d 804,
12 807-08 (9th Cir. 2016); see Massachi v. Astrue, 486 F.3d 1149, 1153-54 (9th Cir.
13 2007) (explaining that neither the DOT nor VE evidence “automatically trumps
14 when there is a conflict” and that if the ALJ determines that a conflict exists, “the
15 ALJ must then determine whether the vocational expert’s explanation for the
16 conflict is reasonable and whether a basis exists for relying on the expert rather than
17 the [DOT].”).
18 Plaintiff argues that the occupations identified by the VE have requirements
19 that are inconsistent with Plaintiff’s RFC and that the ALJ failed to address these
20 alleged conflicts between the VE’s testimony and the DOT requirements.
21 Specifically, Plaintiff contends that VE’s testimony conflicts with the following
22 RFC limitations: (1) to four hours of sitting/four hours of standing/walking; (2) no
23 frequent lifting; and (3) no fast-paced production work.
24 As explained further herein, the Court finds that there is no apparent or
25 obvious conflict between the VE’s testimony and the DOT’s job requirements
26 requiring any further resolution by the ALJ.
27 First, with respect to the sit/stand requirement of Plaintiff’s RFC, the
28 vocational expert noted that the RFC’s four/four requirement was inconsistent with
1 sedentary jobs, which, as Plaintiff notes, generally require only two hours of
2 standing or walking in an eight hour day. [AR 53 (VE’s testimony); Pl. Brf. at 7
3 (citing 20 C.F.R. 416.967(a)).] The VE testified that based on his experience, which
4 involved evaluation of the jobs he had identified over a period of years, the RFC
5 requirement of four hours of standing/walking could be accommodated. A
6 vocational expert’s “recognized expertise provides the necessary foundation for his
7 or her testimony. Thus, no additional foundation is necessary.” Bayliss v. Barnhart,
8 427 F.3d 1211, 1217 (9th Cir. 2005). The ALJ was thus entitled to rely on the VE’s
9 testimonial evidence, and Plaintiff presents no evidence, only argument, to the
10 contrary. Plaintiff’s sit/stand argument thus fails.
11 Plaintiff’s second argument – that the identified jobs must, based on common
12 sense, require frequent lifting – requires too many assumptions and mental gyrations
13 to hold water. The VE testified that there were no conflicts other than those he
14 identified between Plaintiff’s RFC and the job requirements as described in the
15 DOT, and specifically that the identified jobs did not require frequent lifting. [AR
16 52.] Plaintiff thus attempts to manufacture a conflict by arguing that the regulations
17 are vague as to whether frequent lifting of “negligible amounts” (as opposed to the
18 ten or twenty pound limitations specifically included in her RFC) is consistent with
19 Plaintiff’s “no frequent lifting” limitation. [Pl. Brf. at 10-11.]2 The definition of
20 “negligible” is “so small or unimportant as to be not worth considering” or
21 “insignificant.” [LEXICO Powered by Oxford US Dictionary located at
22
23
2 Plaintiff concludes that frequent lifting of negligible amounts is required to
24
perform the jobs identified by the VE. She bases this conclusion on her contention
that frequent “reaching, handling, and fingering” – which the jobs require and her
25
RFC permits – by necessity also requires lifting negligible amounts. [Pl. Brf. at 11-
12.] She makes similar arguments about the dexterity required to perform the
26
identified jobs. [Id. at 12-13.] But as the Commissioner correctly notes, “lifting” is
a distinct limitation (i.e., a different vocational requirement) than reaching,
27
fingering, handling, or dexterity. [Df.’s Opp. at 4.]
28
1 http://www/lexico.com/ev/definition/negligible.] Plaintiff cites no evidence or
2 caselaw to support her argument that “lifting negligible amounts” is ever a
3 consideration in a disability determination and the Court cannot locate any such
4 support either. Common sense dictates that it is not – it is so “unimportant as to be
5 not worth considering.” Moreover, it is clear that the ALJ was referencing the usual
6 exertional limitation standards when she specifically mentioned the frequency with
7 which Plaintiff could lift ten or twenty pounds – “occasionally” and “rarely,” not
8 “frequently.” And again, the VE testified that the identified jobs did not require
9 frequent lifting. [AR 55.] While perhaps creative, Plaintiff’s frequent lifting
10 argument is without merit.
11 Plaintiff’s third and final argument relates to her RFC limitation to jobs not
12 requiring fast-paced production or assembly line work. On direct examination, the
13 VE testified that there was no conflict between Plaintiff’s restriction from
14 performing fast-paced work and the requirements of the identified jobs. On cross
15 examination, Plaintiff’s counsel elicited testimony from the VE that all employers
16 would require some metric – some amount of required production – by which to
17 measure performance. Counsel asked about the existence of jobs where the
18 employee “[w]ould not be expected to meet any sort of production quotas or
19 benchmarks, would be able to just work at whatever pace that person had to work at
20 that day and sometimes it would be a pace that was slower than your average
21 employee.” [AR 56.] The VE responded that, “none of these jobs that I’ve outlined
22 or any other jobs that I’m familiar with would be amenable, or an employer would
23 be amenable to, a no quota or no standard of employment.” [Id.] From this
24 testimony, Plaintiff argues that there is a conflict because the ALJ did not properly
25 define “fast-paced,” which rendered “the residual functional capacity assessment
26 and questioning of the vocational expert vague.” [Pl. Brf. at 15.] Plaintiff’s
27 argument is nonsensical. That jobs that require no standard of productivity do not
28 exist does not somehow render a limitation to “no fast-paced” assembly line jobs
1 |} vague. The VE testified clearly that the identified jobs did not require fast-paced
2 || work and the ALJ was entitled to rely on this testimony.
3 Plaintiff has not identified an “apparent or obvious” conflict between the VE’s
4 || testimony regarding the claimant’s ability to perform the jobs identified by the VE
5 || and the DOT’s description of those jobs. Accordingly, remand is not warranted
6 || here.
7
8 V. CONCLUSION
9 For all of the foregoing reasons, IT IS ORDERED that the decision of the
10 || Commissioner finding Plaintiff not disabled is AFFIRMED.
11 IT IS SO ORDERED.
12 DATED: April 20, 2020 TT
13
14 GAIL J. STANDISH
UNITED STATES MAGISTRATE JUDGE
15
16
17
18
19
20
21
22
23
24
25
26
27
28