“When there is an apparent conflict 13 between the vocational expert’s testimony and the DOT . . . the ALJ is required to 14 reconcile the conflict.”
How later courts described this case
- “When there is an apparent conflict 13 between the vocational expert’s testimony and the DOT . . . the ALJ is required to 14 reconcile the conflict.”
- “Although the [claimant] 10 clearly does suffer from diabetes, high blood pressure, and arthritis, there is no 11 evidence to support his claim that those impairments are ‘severe.’”
- the failure to address an impairment at 2 || step two is harmless if the ALJ discussed it in the RFC determination
- in an RFC 22 assessment, the ALJ should consider all limitations imposed by both severe and 23 non-severe impairments
Written by the judges who cited it.
The opinion
Case 2:20-cv-08628-SP Document 28 Filed 09/28/22 Page 1 of 12 Page ID #:954
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
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11 LORI S., ) Case No. 2:20-cv-08628-SP
)
12 Plaintiff, )
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13 v. ) MEMORANDUM OPINION AND
) ORDER
14 )
KILOLO KIJAKAZI, Acting )
15 Commissioner of Social Security )
Administration, )
16 )
Defendant. )
17 )
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19 I.
20 INTRODUCTION
21 On September 21, 2020, plaintiff Lori S. filed a complaint against defendant,
22 the Commissioner of the Social Security Administration (“Commissioner”),
23 seeking a review of a denial of supplemental security income (“SSI”). The parties
24 have fully briefed the issues in dispute, and the court deems the matter suitable for
25 adjudication without oral argument.
26 Plaintiff presents three disputed issues for decision: (1) whether the
27 Administrative Law Judge (“ALJ”) erred at step five; (2) whether the ALJ erred at
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1 step two when she failed to find plaintiff’s asthma was a severe impairment; and
2 (3) whether the ALJ erred in considering plaintiff’s lumbar spine impairment, both
3 in finding it not severe at step two, and in assessing plaintiff’s residual functional
4 capacity (“RFC”). Memorandum in Support of Plaintiff’s Complaint (“P. Mem.”)
5 at 2-14; see Memorandum in Support of Defendant’s Answer (“D. Mem.”) at 2-10.
6 Having carefully studied the parties’ memoranda on the issues in dispute, the
7 Administrative Record (“AR”), and the decision of the ALJ, the court concludes
8 that, as detailed herein, the ALJ did not err at step two or five, and also did not err
9 in assessing plaintiff’s RFC. The court therefore affirms the decision of the
10 Commissioner denying benefits.
11 II.
12 FACTUAL AND PROCEDURAL BACKGROUND
13 Plaintiff, who was 50 years old on the application date, attended school
14 through the tenth grade. AR at 70-71, 203. Plaintiff has no past relevant work. Id.
15 at 64.
16 On January 8, 2018, plaintiff filed an application for SSI due to
17 Guillain-Barre syndrome, high blood pressure, thyroid problems, depression, acid
18 reflux, asthma, vertigo, and migraines.1 Id. at 71. The application was denied
19 initially and upon reconsideration, after which plaintiff filed a request for hearing.
20 Id. at 98-115.
21 On May 8, 2020, plaintiff, represented by counsel, appeared and testified at
22 a hearing before the ALJ. Id. at 31-69. The ALJ also heard testimony from Gail
23 Maron, a vocational expert (“VE”). Id. at 64-68. On May 21, 2020, the ALJ
24 denied plaintiff’s claim for benefits. Id. at 10-21.
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1 Plaintiff had previously been granted SSI benefits in 2010. AR at 44-45, 71.
28 Plaintiff was deemed not disabled in May 2016. Id. at 45.
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Case 2:20-cv-08628-SP Document 28 Filed 09/28/22 Page 3 of 12 Page ID #:956
1 Applying the well-known five-step sequential evaluation process, the ALJ
2 found, at step one, that plaintiff had not engaged in substantial gainful activity
3 since January 8, 2018, the application date. Id. at 12.
4 At step two, the ALJ found plaintiff suffered from the severe impairments of
5 Guillain-Barre syndrome, vertigo, bipolar disorder, anxiety, post-traumatic stress
6 disorder, obesity, and a substance abuse disorder. Id.
7 At step three, the ALJ found plaintiff’s impairments, whether individually or
8 in combination, did not meet or medically equal one of the listed impairments set
9 forth in 20 C.F.R. part 404, Subpart P, Appendix 1. Id. at 13.
10 The ALJ then assessed plaintiff’s RFC,2 and determined plaintiff had the
11 RFC to perform medium work as defined in 20 C.F.R. § 416.967(b), with the
12 limitations that plaintiff: could not climb ladders, ropes, and scaffolds; could not
13 have exposure to dangerous work hazards including unprotected heights and
14 exposed moving machinery; was limited to up to detailed, but not complex, work
15 tasks and work not requiring a fast assembly quota pace as defined at the hearing;
16 was limited to occasional work interactions with co-workers, supervisors, and the
17 public; and was limited to work tolerating up to three percent off task behavior
18 during the workday due to momentary symptom distractions. Id. at 15-16.
19 The ALJ found, at step four, that plaintiff had no past relevant work. Id. at
20 20.
21 At step five, the ALJ found there were jobs that existed in significant
22 numbers in the national economy that plaintiff could perform, including cook
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2 Residual functional capacity is what a claimant can do despite existing
25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155-
26 56 n.5-7 (9th Cir. 1989). “Between steps three and four of the five-step evaluation,
the ALJ must proceed to an intermediate step in which the ALJ assesses the
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claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151
28 n.2 (9th Cir. 2007).
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Case 2:20-cv-08628-SP Document 28 Filed 09/28/22 Page 4 of 12 Page ID #:957
1 helper and hand packager. Id. at 20-21. Consequently, the ALJ concluded plaintiff
2 did not suffer from a disability as defined by the Social Security Act. Id. at 21.
3 Plaintiff filed a timely request for review of the ALJ’s decision, which the
4 Appeals Council denied. Id. at 1-3. The ALJ’s decision stands as the final
5 decision of the Commissioner.
6 III.
7 STANDARD OF REVIEW
8 This court is empowered to review decisions by the Commissioner to deny
9 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security
10 Administration (“SSA”) must be upheld if they are free of legal error and
11 supported by substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th
12 Cir. 2001) (as amended). But if the court determines the ALJ’s findings are based
13 on legal error or are not supported by substantial evidence in the record, the court
14 may reject the findings and set aside the decision to deny benefits. Aukland v.
15 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d
16 1144, 1147 (9th Cir. 2001).
17 “Substantial evidence is more than a mere scintilla, but less than a
18 preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such
19 “relevant evidence which a reasonable person might accept as adequate to support
20 a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276
21 F.3d at 459. To determine whether substantial evidence supports the ALJ’s
22 finding, the reviewing court must review the administrative record as a whole,
23 “weighing both the evidence that supports and the evidence that detracts from the
24 ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be
25 affirmed simply by isolating a specific quantum of supporting evidence.’”
26 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th
27 Cir. 1998)). If the evidence can reasonably support either affirming or reversing
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1 the ALJ’s decision, the reviewing court “‘may not substitute its judgment for that
2 of the ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir.
3 1992)).
4 IV.
5 DISCUSSION
6 A. The ALJ Did Not Err at Step Five
7 Plaintiff contends the ALJ erred at step five because she improperly relied
8 on the testimony of the vocational expert, who identified jobs that exceeded
9 plaintiff’s RFC. P. Mem. at 2-8. Specifically, plaintiff argues the ALJ erred when
10 she failed to ask the VE to reconcile the apparent conflicts between the VE
11 testimony and the Dictionary of Occupational Titles (“DOT”). Id. Plaintiff alleges
12 that the job of cook helper required “significant interactions with co-workers” and
13 the job of hand packager involved exposure to various hazards, both of which are
14 precluded by plaintiff’s RFC. Id. at 4-8.
15 At step five, the burden shifts to the Commissioner to show that the
16 claimant retains the ability to perform other gainful activity. Lounsburry v.
17 Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). To support a finding that a
18 claimant is not disabled at step five, the Commissioner must provide evidence
19 demonstrating that other work exists in significant numbers in the national
20 economy that the claimant can perform, given his or her age, education, work
21 experience, and RFC. 20 C.F.R. § 416.912(b)(3).
22 ALJs routinely rely on the DOT “in evaluating whether the claimant is able
23 to perform other work in the national economy.” Terry v. Sullivan, 903 F.2d 1273,
24 1276 (9th Cir. 1990) (citations omitted); see also 20 C.F.R. § 416.966(d)(1) (DOT
25 is a source of reliable job information). The DOT is the rebuttable presumptive
26 authority on job classifications. Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir.
27 1995). An ALJ may not rely on a VE’s testimony regarding the requirements of a
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1 particular job without first inquiring whether the testimony conflicts with the DOT,
2 and if so, the reasons therefor. Massachi, 486 F.3d at 1152-53 (citing Social
3 Security Ruling (“SSR”) 00-4p).3
4 In order for an ALJ to accept a VE’s testimony that contradicts the DOT, the
5 record must contain “‘persuasive evidence to support the deviation.’” Id. at 1153
6 (quoting Johnson, 60 F.3d at 1435). Evidence sufficient to permit such a deviation
7 may be either specific findings of fact regarding the claimant’s residual
8 functionality, or inferences drawn from the context of the expert’s testimony.
9 Light v. Soc. Sec. Admin., 119 F.3d 789, 793 (9th Cir. 1997) (citations omitted).
10 Where the ALJ fails to obtain an explanation for and resolve an apparent conflict –
11 even where the VE did not identify the conflict – the ALJ errs. See Zavalin v.
12 Colvin, 778 F.3d 842, 846 (9th Cir. 2015) (“When there is an apparent conflict
13 between the vocational expert’s testimony and the DOT . . . the ALJ is required to
14 reconcile the conflict.”); see, e.g., Hernandez v. Astrue, 2011 WL 223595, at *2-*5
15 (C.D. Cal. Jan. 21, 2011) (where VE incorrectly testified there was no conflict
16 between her testimony and DOT, ALJ erred in relying on VE’s testimony and
17 failing to acknowledge or reconcile the apparent conflict); Mkhitaryan v. Astrue,
18 2010 WL 1752162, at *3 (C.D. Cal. Apr. 27, 2010) (“Because the ALJ incorrectly
19 adopted the VE’s conclusion that there was no apparent conflict [and] the ALJ
20 provided no explanation for the deviation,” the ALJ “therefore committed legal
21 error warranting remand.”). For a conflict to be apparent, the VE’s testimony must
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3 “The Commissioner issues Social Security Rulings to clarify the Act’s
implementing regulations and the agency’s policies. SSRs are binding on all
25 components of the SSA. SSRs do not have the force of law. However, because
26 they represent the Commissioner’s interpretation of the agency’s regulations, we
give them some deference. We will not defer to SSRs if they are inconsistent with
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the statute or regulations.” Holohan v. Massanari, 246 F.3d 1195, 1202 n.1 (9th
28 Cir. 2001) (internal citations omitted).
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1 be at odds with the essential, integral, or expected parts of a job. Gutierrez v.
2 Colvin, 844 F.3d 804, 808 (9th Cir. 2016).
3 At the hearing, in response to a hypothetical person with plaintiff’s RFC, the
4 VE testified that such person could perform the jobs of cook helper (DOT
5 317.687-010) and hand packager (DOT 920.587-018). AR at 65. The VE further
6 testified the jobs were consistent with the DOT, but portions of the hypothetical –
7 including the limitations concerning fast pace assembly and being off task – were
8 not in the DOT. Id. at 67. The VE relied on her education, training, and work
9 experience to determine whether plaintiff could perform the jobs with those
10 limitations. Id.
11 There was no apparent conflict between the VE’s testimony that plaintiff
12 could perform the job of cook helper and the DOT. In her RFC determination, the
13 ALJ limited plaintiff to “only occasional required work interactions with co-
14 workers, supervisors, and the public.” Id. at 16. The DOT describes the job as
15 requiring a cook helper to “[a]ssist[] workers engaged in preparing foods for
16 hotels, restaurants, or ready-to-serve packages by performing” a variety of duties
17 including cleaning and peeling vegetables, stirring soup, weighing ingredients,
18 carrying pans and food, and cleaning work areas. DOT 317.687-010, 1991 WL
19 672752. Plaintiff contends the fact that a cook helper must assist other workers
20 means he or she must have significant interactions with co-workers. P. Mem. at 4.
21 But plaintiff’s argument is based solely on her own interpretation of this DOT
22 provision. To the contrary, the DOT states that the level of interactions required is
23 “not significant,” and the description of the tasks do not indicate they require more
24 than occasional interactions with others. See, e.g., Brown v. Berryhill, 2018 WL
25 748150, at *3 n.6 (C.D. Cal. Feb. 7, 2018) (the job of cook helper requires a level
26 of interaction that is “not significant”) (citing DOT 317.687-010); Henley v.
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1 Astrue, 2012 WL 2804852, at *7 (W.D.N.C. May 9, 2012) (the job of cook helper
2 does not require significant interaction with others).
3 There also was no apparent conflict between the VE’s testimony that
4 plaintiff could perform the job of hand packager and the DOT. The ALJ
5 determined plaintiff could “never have exposure to dangerous work hazards
6 including unprotected heights and exposed moving machinery.” AR at 15. A hand
7 packager packages materials and products manually, and his or her duties may
8 include: cleaning packaging containers; sorting products; weighing containers;
9 starting, stopping, and regulating speed of conveyor; and nailing, gluing, or closing
10 containers; and recording information such as weight, time, and date packaged.
11 DOT 920.587-018, 1991 WL 687916. Plaintiff contends the operation of a
12 conveyor and nailing containers are hazards, and therefore the VE’s testimony
13 conflicts with the DOT. P. Mem. at 6. But the DOT defines hazards as “moving
14 mechanical parts of equipment, tools, or machinery; electrical shock; working in
15 high, exposed places; exposure to radiation; working with explosives; and
16 exposure to toxic, caustic chemicals.” SSR 96-6p. Although the job of hand
17 packager may entail starting, stopping, and regulating the speed of a conveyor, the
18 DOT expressly states that exposure to moving mechanical parts is “not present” in
19 the hand packager position. See DOT 920.587-018, 1991 WL 687916. Likewise,
20 with respect to nailing containers, the DOT does not define the use of simple tools
21 such as a hammer as a hazard. See, e.g., Contreras v. Berryhill, 2018 WL
22 2448120, at *7 (C.D. Cal. May 30, 2018) (tools such as scissors and a knife do not
23 fall within the Commissioner’s definition of hazards); Peterson v. Astrue, 2011
24 WL 1131495, at *4-*5 (D. Or. Mar. 2, 2011) (tools such as hammers are not
25 hazards under the DOT); Phonn v. Astrue, 2010 WL 2850768, at *3 (C.D. Cal. Jul.
26 20, 2010) (“A knife is a tool; it is not a hazardous machine.”). As such, there was
27 no apparent conflict between the VE’s testimony and the DOT. See, e.g.,
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1 Hernandez v. Colvin, 2016 WL 805252, at *8 (C.D. Cal. Feb. 29, 2016) (there was
2 no conflict between the VE testimony and DOT because the DOT states that the
3 hazard of moving mechanical parts is not present); Anderson v. Colvin, 2015 WL
4 1005407, at *5 (C.D. Cal. Mar. 6, 2015) (agreeing that based on the DOT
5 description, the hand packager occupation does not involve work around hazardous
6 machinery); Bryant v. Colvin, 2014 WL 1831016, at *4 (C.D. Cal. May 7, 2014)
7 (“[T]he DOT indicates that hand-packager jobs do not involve exposure to
8 dangerous machinery.”).
9 Accordingly, the ALJ did not err at step five. Substantial evidence
10 supported the ALJ’s step five findings.
11 B. The ALJ Did Not Err in Considering Plaintiff’s Asthma and Lumbar
12 Spine Impairment
13 Plaintiff argues the ALJ erred at step two when she failed to recognize her
14 asthma and her lumbar spine impairment as severe impairments. P. Mem. at 8-14.
15 Plaintiff also contends the ALJ failed to consider her back pain in her RFC
16 determination. Id. at 14.
17 At step two, the Commissioner considers the severity of the claimant’s
18 impairment. 20 C.F.R. § 416.920(a)(4)(ii). “[T]he step-two inquiry is a de
19 minimis screening device to dispose of groundless claims.” Smolen v. Chater, 80
20 F.3d 1273, 1290 (9th Cir. 1996). Here, the ALJ found plaintiff suffered from the
21 severe impairments of Guillain-Barre syndrome, vertigo, bipolar disorder, anxiety,
22 post-traumatic stress disorder, obesity, and a substance abuse disorder. AR at 12.
23 In reaching this finding, the ALJ specifically discussed plaintiff’s asthma and
24 lumbar spine impairment and found them to be non-severe. Id. at 12-13. With
25 regard to asthma, the ALJ noted plaintiff demonstrated faint rhonchi in her lower
26 field and was diagnosed with mild, persistent asthma in January 2017, but was able
27 to manage her symptoms with inhaler medications. Id. at 13. The ALJ also noted
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1 plaintiff was a long-term smoker, which suggested that her asthma was not as
2 limiting as she alleged. Id. As for plaintiff’s lumbar spine impairment, the ALJ
3 found that to be non-severe because plaintiff only had mild objective findings and
4 conservative treatment history. Id.
5 1. Asthma
6 The ALJ did not err when she found plaintiff’s asthma to be non-severe at
7 step two. Plaintiff was diagnosed with asthma in her childhood. AR at 290. But
8 the mere diagnosis of an impairment does not establish that it was severe. See
9 Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999) (“Although the [claimant]
10 clearly does suffer from diabetes, high blood pressure, and arthritis, there is no
11 evidence to support his claim that those impairments are ‘severe.’”); see also
12 Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) (“The mere existence of an
13 impairment is insufficient proof of a disability.”). Plaintiff’s medical records
14 indicate that other than faint rhonchi in January and May 2017 and two claims of
15 shortness of breath, plaintiff was able to manage her asthma with inhaler
16 medications. See AR at 262, 270, 498, 509. At her examinations prior to and
17 during the relevant period, plaintiff consistently exhibited no wheezing, good air
18 movement, normal breath, and lungs that were clear to auscultation. See, e.g., id.
19 at 301, 304, 486, 495, 526, 553, 756, 850. An October 2018 chest x-ray showed no
20 abnormalities. Id. at 861. Indeed, throughout the relevant period, plaintiff’s
21 physicians opined plaintiff’s asthma was mild and without complication. See, e.g.,
22 id. at 497, 501, 507, 631.
23 Even if the ALJ’s conclusion that plaintiff’s smoking aggravates her asthma
24 was in error, there was no harm. The medical records reveal scant complaints
25 about symptoms and indicate that plaintiff’s asthma was well-managed with
26 medications. See Warre v. Comm’r, 439 F.3d 1001, 1006 (9th Cir. 2006)
27 (“Impairments that can be controlled effectively with medication are not disabling
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1 for purposes of determining eligibility for SSI benefits.”). Indeed, even plaintiff’s
2 reported asthma attack during the hearing was so mild that plaintiff apparently just
3 needed to pause for a moment. See AR at 37.
4 Thus, the ALJ did not err at step two when she found plaintiff’s asthma was
5 not a severe impairment. Substantial evidence supports the non-severity finding.
6 2. Lumbar Spine Impairment
7 Similarly, the ALJ did not err at step two when she found plaintiff’s lumbar
8 spine impairment to be non-severe. As the ALJ recognized, there were some
9 objective findings of a lumbar spine impairment, but they were sparse and the
10 treatment was conservative. AR at 13. A June 2016 x-ray showed trace right
11 convex scoliosis at L2-3, plaintiff alleged gait abnormality in September 2016, and
12 plaintiff had lower back pain while performing the single leg raise in November
13 2017. Id. at 513, 563, 735. Plaintiff’s few complaints of back pain were treated
14 with gabapentin and ibuprofen. Id. at 271-72. During the relevant period, plaintiff
15 only complained of back pain on two occasions, and physicians treated it with
16 ibuprofen. Id. at 494, 633-35. Indeed, records from the relevant period reflect no
17 tenderness, normal strength, and normal range of motion even on the two occasions
18 plaintiff complained of pain. See id. at 484, 495, 637, 850.
19 Plaintiff correctly contends that regardless of the severity finding, the ALJ
20 was still required to address plaintiff’s lumbar spine impairment in the RFC. P.
21 Mem. at 4; see Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (in an RFC
22 assessment, the ALJ should consider all limitations imposed by both severe and
23 non-severe impairments). Here, the ALJ addressed plaintiff’s complaints, physical
24 limitations, and obesity in the decision, including the only symptom plaintiff
25 alleged relating to her back, which was an inability to sit too long due to her back
26 seizing up. See AR at 16-17, 61. Thus, even if the ALJ erred in failing to find
27 plaintiff’s lumbar spine impairment severe, the error was harmless. Lewis v.
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1 |] Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (the failure to address an impairment at
2 || step two is harmless if the ALJ discussed it in the RFC determination).
3 Accordingly, the ALJ’s step two findings were supported by substantial
4 || evidence, and any error was harmless since the ALJ considered plaintiff's non-
5 || severe impairments in formulating her RFC.
6 V.
7 CONCLUSION
8 IT IS THEREFORE ORDERED that Judgment shall be entered affirming
9 || the decision of the Commissioner denying benefits and dismissing this action with
10 || prejudice.
11
12 | DATED: September 28, 2022 LRP
13 Ne
14 United States Magistrate Judge
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