GARY S. AUSTIN, Magistrate Judge.
Plaintiff Roy Lee Maxwell ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for disability insurance benefits pursuant to Title II of the Social Security Act. The matter is currently before the Court on the parties' briefs which were submitted without oral argument to the Honorable Gary S. Austin, United States Magistrate Judge.
On June 25, 2014, Plaintiff filed an application for disability insurance benefits pursuant to Title II alleging disability beginning January 10, 2014. AR 41. The Commissioner denied the application initially on October 30, 2014, and upon reconsideration on March 13, 2015. AR 41. On May 11, 2015, Plaintiff filed a timely request for a hearing before an Administrative Law Judge. AR 41.
Administrative Law Judge Lisa Lunsford presided over an administrative hearing on March 28, 2017. AR 54-91. Plaintiff appeared and was represented by an attorney. AR 54. Impartial vocational expert Gretchen Bakkenson (the "VE") also testified. AR 54.
On May 9, 2017, the ALJ denied Plaintiff's application. AR 41-49. The Appeals Council denied review on May 1, 2018. AR 1-3. On June 29, 2018, Plaintiff filed a complaint in this Court. Doc. 1.
Plaintiff (born August 26, 1954) worked for Chevron for forty years, ending his career there as a safety supervisor in the health and human services group. AR 60, 64, 106. Managing safety of "people, processes, and equipment," Plaintiff initiated safety programs, conducted field operations, attended meetings and training, trained various people within the company and managed approximately 300 employees. AR 65. Plaintiff completed two years of college and extensive technical training relevant to his career. AR 66-67.
In 2010, Plaintiff's fiancée Joanne was brutally assaulted and mutilated by her mentally ill adult son. AR 70, 73, 74. In the course of the assault, Joanne attempted to call Plaintiff for help. AR 71. Although Plaintiff was only minutes away he was busy at work and did not answer his phone. AR 70-71. Joanne survived in a coma for two years before her other children elected to withdraw life support. AR 72. Plaintiff felt great guilt for his failure to save his fiancée. AR 70-71. Various related occurrences resulted in additional emotional trauma.
Plaintiff began experiencing short blackouts after the assault. AR 74. More often he experienced panic attacks with symptoms such as dizziness, lightheadedness, stomach and joint pain, shortness of breath, high blood pressure and excessive sweating. AR 75-78. He experienced violent nightmares. AR 77. His work suffered. AR 75. While flying to Oregon on January 10, 2014, Plaintiff lost consciousness and stopped breathing. AR 68-69. He stopped working thereafter. AR 69. Doctors attribute his anxiety and panic attacks to post traumatic stress syndrome (PTSD). AR 67.
Pursuant to 42 U.S.C. §405(g), this court has the authority to review a decision by the Commissioner denying a claimant disability benefits. "This court may set aside the Commissioner's denial of disability insurance benefits when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole." Tackett v. Apfel, 180 F.3d 1094, 1097 (9
If the evidence reasonably could support two conclusions, the court "may not substitute its judgment for that of the Commissioner" and must affirm the decision. Jamerson v. Chater, 112 F.3d 1064, 1066 (9
To achieve uniformity in the decision-making process, the Commissioner has established a sequential five-step process for evaluating a claimant's alleged disability. 20 C.F.R. §§ 416.920(a)-(f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding that the claimant is or is not disabled. 20 C.F.R. §§ 416.927, 416.929.
Specifically, the ALJ is required to determine: (1) whether a claimant engaged in substantial gainful activity during the period of alleged disability, (2) whether the claimant had medically determinable "severe impairments," (3) whether these impairments meet or are medically equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1, (4) whether the claimant retained the residual functional capacity ("RFC") to perform his past relevant work, and (5) whether the claimant had the ability to perform other jobs existing in significant numbers at the national and regional level. 20 C.F.R. § 416.920(a)-(f).
The ALJ found that Plaintiff had not engaged in substantial gainful activity since the alleged onset date of January 10, 2014. AR 43. His severe impairments included posttraumatic stress disorder (PTSD), generalized anxiety disorder/panic disorder, mood disorder NOS, obsessive compulsive personality traits, lumbar and thoracic degenerative disc disease, hypertension and obesity. AR 43. None of the severe impairments met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d); 404.1525; and, 404.1526). AR 44.
The ALJ concluded that Plaintiff had the residual functional capacity to perform medium work with the following limitations: never climb ladders, ropes or scaffolds; no exposure to hazards such as unprotected heights or moving machinery; and, perform no more than simple tasks. AR 45. Plaintiff would be off task five per cent of the workday. AR 45.
Plaintiff was not able to perform any past relevant work; however, jobs that Plaintiff could perform existed in significant numbers in the national economy. AR 48. Accordingly, the ALJ found that Plaintiff was not disabled from January 10, 2014, through May 9, 2017 (the date of the hearing decision). AR 49.
Plaintiff contends that his residual functional capacity precludes performance of the alternative jobs identified by the ALJ at step five. Doc.11 at 5-9. The Commissioner disagrees, contending that the ALJ properly relied on the opinion of the vocational expert. Doc. 14 at 4-10. The difference in the parties' positions requires the Court evaluate whether Plaintiff could perform the positions identified as available to him in the national economy.
The vocational expert identified Plaintiff's past work as safety engineer (DOT No. 010.061-014, light, SVP 8). AR 86. She testified that Plaintiff's past work could not be performed by a hypothetical person with the same age, education and work experience as Plaintiff. AR 86-87. Specifically, the hypothetical person was limited to medium work; could never climb ladders, ropes or scaffolds; could have no exposure to hazards such as moving machinery or heights; was limited to simple tasks; and, would be off task five percent of the time. AR 86-87. However, the hypothetical person could perform other work, including (1) dishwasher
In determining whether appropriate jobs exist for the claimant, the ALJ generally will refer to the DOT, which sets forth "detailed physical requirements for a variety of jobs." Light v. Social Sec. Admin., 119 F.3d 789, 793 (9
Social Security Ruling 00-4p is intended, among other things, to clarify standards for the use of vocational experts in administrative hearings. SSR 00-4p at *1. The ruling emphasizes that before relying on a vocational expert's testimony to support a disability determination or decision, an ALJ must: "Identify and obtain a reasonable explanation for any conflicts between occupational evidence provided by VEs ... and [e]xplain in the determination or decision how any conflict that has been identified has been resolved." Id.
By identifying the DOT as the primary source of information, the ruling contemplates that the ALJ will be familiar (or will familiarize herself) with the provisions of the DOT applicable to the claim being considered. SSR 00-4p at *2. Vocational experts are intended to assist in resolving complex questions, generally by testifying at administrative hearings. Id.
Vocational expert testimony should generally be consistent with DOT provisions. Id. The ALJ may rely on vocational expert testimony that contradicts the DOT but only insofar as the record contains persuasive evidence to support the deviation. Massachi v. Astrue, 486 F.3d 1149, 1153 (9
The ruling imposes "an affirmative responsibility" to ask about any conflict between the vocational expert's testimony and information provided in the DOT. SSR 00-4p at *4. The ALJ must:
An ALJ can only properly rely on testimony inconsistent with the DOT after he or she has determined both whether the VE has deviated from the DOT and whether any deviation is reasonable. Massachi, 486 F.3d at 1152-54. Reasonable deviations may include occupations for which the DOT does not provide information but for which information is available elsewhere and occupations for which the general information in the DOT does not apply in the specific situation. Id. at 1153 n. 17. Evidence sufficient to support a deviation from the DOT may consist either of specific findings of fact regarding a plaintiff's ability to perform particular jobs or of inferences drawn from the context of the expert's testimony. See Johnson v. Shalala, 60 F.3d 1428, 1435 n. 7 (9
Plaintiff contends that the ALJ erred in failing to probe inconsistencies between the hypothetical person's residual functional capacity and additional limitations, and the three exemplary occupations that the vocational expert opined that the hypothetical person could perform. Plaintiff contends that two occupations, dishwasher and laundry worker present hazards precluded by the additional limitations and that the remaining occupation, order picker, required occasional climbing precluded by the limitations.
Plaintiff contends that both dishwashing and laundry work would exposure Plaintiff to wet or humid environmental conditions. In addition, dishwashing presents additional hazards of cold, heat, and loud noise. None of these additional hazards are precluded by Plaintiff's residual functional capacity, which explicitly provides only that Plaintiff should not be exposed to hazards such as unprotected heights or moving machinery. AR 45. Hazards of moving mechanical parts and high exposed places are not present in either occupation. See DICOT 318.687-010, 1991 WL 672755 (January 1, 2016); DICOT 361.684-014, 1991 WL 672983 (January 1, 2016). Accordingly, no inconsistency appears between Plaintiff's residual functional capacity and limitations and the vocational expert's testimony and the DOT.
Order pickers (warehouse workers) are exposed to occasional climbing (exists up to one-third of the time). DICOT 922.687-058, 1991 WL 688132 (January 1, 2016). As noted above, the ALJ asked generally whether the VE's testimony was consistent with the DOT and received an affirmative response. The ALJ did not ask specifically about the apparent inconsistency between the DOT's specifications concerning climbing by an order picker.
The Ninth Circuit does not expect an ALJ to conduct an independent review of a DOT listing in order to determine whether he or she must question a vocational expert in detail about a potential conflict. "[N]ot all potential conflicts between an expert's job suitability recommendation and the Dictionary's listing of `maximum requirements' for an occupation will be apparent or obvious ... an ALJ need only follow up on those that are." Gutierrez v. Colvin, 844 F.3d 804, 807-08 (9
For example, although Mrs. Gutierrez had weight bearing and overhead reaching limitations of her right arm but full use of her left arm, the vocational expert opined that she could work as a cashier. Id. The DOT provides generally that cashiering involves frequent reaching. Id. "While `reaching' connotes the ability to extend one's hands and arms `in any direction,' SSR 85-15 . . . at *7 . . ., not every job that involves reaching requires the ability to reach overhead." Id. Although the DOT specifies that both cashier and stock clerk jobs require frequent reaching, the court contrasted the work performed by stock clerks who frequently reached overhead to stock shelves, with the reaching performed by a cashier, who almost never has to reach overhead. Id. Observing that the work of cashiers is commonly known, the court concluded that an ALJ has no obligation to ask specific questions where common experience indicates that the frequency or necessity of a task is unlikely and unforeseeable. Id. In such instances, an ALJ is entitled to rely on the expert's experience in job placement to account for the requirements of a particular job. Id. at 809.
The Ninth Circuit considered the Gutierrez holding in Lamear v. Barryhill, 865 F.3d 1201 (9
The court distinguished Mr. Lamear's case from that of Mrs. Gutierrez, finding that common experience was not sufficient to conclude that an individual with limitations in handling, fingering and feeling could perform the job duties described in the DOT descriptions. Id. at 1205. In reaching its conclusion, the court noted that all three positions require frequent handling, fingering, and reaching, indicating that such activities could be performed for as much as two-thirds of the workday. Id. at 1206. In addition, the DOT descriptions included such general tasks for these jobs as "opening and sorting mail, stuffing envelopes, distributing paperwork, and counting change." Id. at 1205.
The Ninth Circuit has also applied Gutierrez in a series of unpublished cases which illustrate the fact-dependent nature of an ALJ's duty to inquire. See Vargas v. Berryhill, 735 Fed. Appx. 413 (9
Order pickers fall within the occupational title of Laborer, Stores, of which Order Picker is an alternative job title. DICOT 922.6867-058, 1991 WL 688132 (January 1, 2016). The description includes many functions that require no climbing at all:
As was the case within Gutierrez, not every job within this title requires climbing of any kind. Depending on the industry, warehouses include those in which products are stored on shelves or in stacks reaching towards a high ceiling, and those in which the products to be picked for orders are within easy reach of a worker on the floor. Given the variety of functions within this category, the variety of warehouse configuration in which the jobs may be performed, and the DOT description of climbing as" occasional," the Court is reluctant to conclude that climbing is an "essential, integral or expected parts of a job." See Gutierrez, 844 F.3d at 808.
Even if the ALJ erred in failing to question the vocational expert about the occasional climbing required by warehouse laborers, the error is harmless. A harmless error is one that is "inconsequential to the ultimate nondisability determination." Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9
Based on the foregoing, the Court finds that the ALJ's decision that Plaintiff is not disabled is supported by substantial evidence in the record as a whole and based on proper legal standards. Accordingly, this Court DENIES Plaintiff's appeal from the administrative decision of the Commissioner of Social Security. The Clerk of Court is directed to enter judgment in favor of Defendant Andrew Saul, Commissioner of Social Security, and against Plaintiff Roy Lee Maxwell.
IT IS SO ORDERED.
