Petrie v. Astrue , 412 F. App'x 401 ( 2011 )

10-2070-cv
Petrie v. Astrue
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the
2 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
3 on the 8th day of March, two thousand eleven.
4
5 PRESENT:
6
7 WILFRED FEINBERG,
8 DEBRA ANN LIVINGSTON,
9 RAYMOND J. LOHIER, JR.,
10
11 Circuit Judges.
12 _______________________________________________
13
14 BRUCE D. PETRIE,
15
16 Plaintiff-Appellant,
17
18 v. No. 10-2070-cv
19
20 MICHAEL J. ASTRUE, Commissioner of Social Security,
21
22 Defendant-Appellee.
23 ______________________________________________
24
25 HOWARD D. OLINSKY (Jaya Shurtliff, on the brief), Olinsky
26 & Shurtliff, Syracuse, New York, for Plaintiff-Appellant.
27
28 SUSAN REISS, Special Assistant U.S. Attorney (Stephen P.
29 Conte, Regional Chief Counsel – Region II, Office of the
30 General Counsel Social Security Administration, on the
1
1 brief), for Richard S. Hartunian, U.S. Attorney for the
2 Northern District of New York, Syracuse, New York, for
3 Defendant-Appellee.
4 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED
5 that the judgment of the district court be AFFIRMED.
6 Plaintiff-Appellant Bruce D. Petrie (“Petrie”) appeals from a judgment of the U.S. District
7 Court for the Northern District of New York (Sharpe, J.) affirming the decision of the Commissioner
8 of Social Security Michael J. Astrue (“Commissioner”), and dismissing Petrie’s complaint. Petrie
9 challenges the Commissioner’s denial of Disability Insurance Benefits (“DIB”) and Supplemental
10 Security Income (“SSI”) under the Social Security Act, 42 U.S.C. § 301 et seq. Pursuant to 28
11 U.S.C. § 636(b)(1), Petrie’s case was referred to a Magistrate Judge (Bianchini, M.J.) who issued
12 a Report and Recommendation (“R&R”) recommending that the decision of the Commissioner be
13 affirmed. On March 19, 2010, the district court adopted the R&R in its entirety and dismissed
14 Petrie’s complaint. Petrie timely appealed on May 17, 2010. We assume the parties’ familiarity
15 with the underlying facts and procedural history.
16 On appeal, Petrie argues that the Administrative Law Judge (“ALJ”) failed to apply the
17 proper legal standards in evaluating his mental impairments and his residual functional capacity
18 (“RFC”),1 and in denying him DIB and SSI benefits under the Social Security Act. Petrie contends
19 that the ALJ did not properly apply the “Treating Physician Rule,” 20 C.F.R. §§ 404.1527, 416.927,
20 and the Psychiatric Review Technique (also called the “Special Technique”). Petrie also argues that
21 the ALJ was required to consult a vocational expert to determine whether Petrie could perform his
1
The Social Security Administration’s regulations define RFC as the most work a
claimant can perform in a work setting despite his physical or mental limitations. See 20 C.F.R.
§ 404.1545(a).
2
1 past work as a cook.
2 “When considering an appeal of a disability case, we undertake our own plenary review of
3 the administrative record to determine whether substantial evidence supports the [Commissioner]’s
4 denial of benefits.” Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (internal quotation marks
5 omitted). Our focus “‘is not so much on the district court’s ruling as it is on the administrative
6 ruling.’” Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quoting Schaal v. Apfel, 134 F.3d 496,
7 500-01 (2d Cir. 1998)). We do not determine de novo whether a claimant is disabled; rather, we set
8 aside an ALJ’s decision only where it is “based upon legal error or is not supported by substantial
9 evidence.” Pratts, 94 F.3d at 37. Substantial evidence is “‘more than a mere scintilla. It means
10 such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”
11 Id. (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). We must “consider[ ] the whole
12 record, examining the evidence from both sides, because an analysis of the substantiality of the
13 evidence must also include that which detracts from its weight.” Williams ex rel. Williams v. Bowen,
14 859 F.2d 255, 258 (2d Cir. 1988) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488
15 (1951)).
16 For purposes of both DIB and SSI eligibility, a claimant is “disabled,” and thus entitled to
17 benefits, where he demonstrates an “inability to engage in any substantial gainful activity by reason
18 of any medically determinable physical or mental impairment which can be expected to result in
19 death or which has lasted or can be expected to last for a continuous period of not less than 12
20 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); see also Berry v. Schweiker, 675 F.2d 464,
21 466 (2d Cir. 1982). A claimant’s physical or mental impairment is not “disabling” under the Social
22 Security Act unless it is “of such severity that he is not only unable to do his previous work but
3
1 cannot, considering his age, education, and work experience, engage in any other kind of substantial
2 gainful work which exists in the national economy.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B);
3 see also Rosa, 168 F.3d at 77.
4 The Social Security Administration has promulgated a five-step sequence for evaluating
5 disability claims. 20 C.F.R. §§ 404.1520, 416.920; see also Berry, 675 F.2d at 467. First, the
6 Commissioner of Social Security considers whether the claimant is currently engaged in “substantial
7 gainful activity.” 20 C.F.R. §§ 404.1520 (a)(4)(i), 416.920(a)(4)(i); see also Berry, 675 F.2d at 467.
8 If he is not, the Commissioner proceeds to the second step and determines whether the claimant has
9 a “severe medically determinable physical or mental impairment,” 20 C.F.R. §§ 404.1520(a)(4)(ii),
10 416.920(a)(4)(ii), that “significantly limits his physical or mental ability to do work activities,”
11 Berry, 675 F.2d at 467. If the claimant does suffer such an impairment, the third step is “whether,
12 based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of
13 the regulations.” Berry, 675 F.2d at 467; see also 20 C.F.R. §§ 404.1520(a)(4)(iii),
14 416.920(a)(4)(iii). If so, the claimant is per se “disabled” and thus presumptively qualified for
15 benefits. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If not, the Commissioner
16 proceeds to the fourth step and examines whether, “despite the claimant’s severe impairment, he has
17 the residual functional capacity to perform his past work.” Berry, 675 F.2d at 467; see also 20
18 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant is unable to perform his past work,
19 the Commissioner finally determines whether there is other work the claimant can perform, taking
20 into consideration the claimant’s RFC, age, education, and work experience. See 20 C.F.R.
21 §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Berry, 675 F.2d at 467.
22 The claimant bears the burden of proof as to the first four steps. See Rosa, 168 F.3d at 77;
4
1 Berry, 675 F.2d at 467. Once the claimant has fulfilled his burden, it shifts to the Commissioner at
2 step five. See Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009). This, however, is only a limited
3 burden shift, in that the Commissioner “need only show that there is work in the national economy
4 that the claimant can do; he need not provide additional evidence of the claimant’s residual
5 functional capacity.” Id.; see also 20 C.F.R. §§ 404.1560(c)(2); 416.960(c)(2).
6 A. Treating Physician Rule
7 Petrie first contends that the ALJ misapplied the Treating Physician Rule by failing to give
8 various medical opinions controlling weight. He also argues that the ALJ had an obligation to re-
9 contact Petrie’s treating sources when he found their opinions inadequate. Further, Petrie argues
10 that, in giving his treating physicians’ opinions minimal weight, the ALJ failed to consider all
11 relevant factors. Petrie’s objections have no merit.
12 “A treating physician’s statement that the claimant is disabled cannot itself be
13 determinative.” Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003) (internal quotation
14 marks omitted). Nevertheless, under the “treating physician” rule, “a treating source’s opinion on
15 the issue(s) of the nature and severity of [a claimant’s] impairment(s)” is given “controlling weight”
16 if the opinion is “well supported by medically acceptable clinical and laboratory diagnostic
17 techniques and is not inconsistent with the other substantial evidence in [the] case record.” 20
18 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); see also Green-Younger, 335 F.3d at 106; Schisler v.
19 Sullivan, 3 F.3d 563, 567 (2d Cir. 1993).
20 “The opinion of a treating physician is accorded extra weight because the continuity of
21 treatment he provides and the doctor/patient relationship he develops place him in a unique position
22 to make a complete and accurate diagnosis of his patient.” Mongeur v. Heckler, 722 F.2d 1033,
5
1 1039 n.2 (2d Cir. 1983) (per curiam). The opinion of the treating physician “is not afforded
2 controlling weight where . . . the treating physician issued opinions that are not consistent with other
3 substantial evidence in the record, such as the opinions of other medical experts.” Halloran v.
4 Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (per curiam). The report of a consultative physician may
5 constitute such substantial evidence. Mongeur, 722 F.2d at 1039.
6 1. Controlling Weight
7 Petrie insists that the medical opinions of two of his physicians, who concluded that he could
8 not perform unskilled work, were entitled to controlling weight. The ALJ refused to give controlling
9 weight to these opinions because one of the physicians, Dr. Suresh Patil, had only examined Petrie
10 once, while the other, Dr. Vilas Patil, had only four treatment notes bearing his signature, two of
11 which were merely co-signatures on reports by other providers. In addition, Dr. Vilas Patil
12 completed his medical opinion over a year after he had last personally seen Petrie. Petrie
13 nevertheless contends that this was an improper ground on which to refuse to give controlling
14 weight, since all of his mental health providers worked at the same institution and thus had access
15 to Petrie’s records and to one another.
16 We disagree. In Mongeur, we emphasized that the opinion of a treating physician is given
17 extra weight because of his unique position resulting from the “continuity of treatment he provides
18 and the doctor/patient relationship he develops.” 722 F.2d at 1039 n.2 (emphasis added). By
19 contrast, we reasoned that a physician who only examined a claimant “once or twice” did not see
20 that claimant regularly and did not develop a physician/patient relationship with the claimant, id.,21 even though other practitioners in the same facility had also submitted medical opinions on behalf
22 of the claimant, id. at 1035. As a result, we concluded that such a physician’s medical opinion was
6
1 “not entitled to the extra weight of that of a ‘treating physician.’” Id. at 1039 n.2. The ALJ
2 therefore did not err in refusing to find Drs. Vilas Patil’s and Suresh Patil’s opinions controlling, due
3 to the physicians’ “limited and remote contact” with Petrie.
4 Moreover, the medical opinions submitted by Petrie were contradicted by those of several
5 medical experts. See Halloran, 362 F.3d at 32; Mongeur, 722 F.2d at 1039. As the ALJ noted, two
6 consultative psychologists, including one from the state agency, opined that he had abilities
7 sufficient to perform unskilled work. The ALJ rightly found that these opinions were consistent
8 with Petrie’s mental status reports, which noted significant improvements since Petrie had begun
9 treatment. The ALJ relied on these reports to find that Petrie had been sleeping well, maintained
10 a good appetite, had good humor and appropriate affect, and was generally cooperative. He also
11 observed that Petrie’s Global Assessment of Functioning Score (“GAF”)2 was assessed at 65,
12 indicating mild symptoms but generally good functioning. The ALJ therefore did not err in
13 concluding that Drs. Vilas Patil’s and Suresh Patil’s opinions were not entitled to controlling weight.
14 2. Obligation to Seek Additional Information
15 Petrie next argues that the ALJ was required to seek additional information from Petrie’s
16 treating sources before refusing to give their opinions controlling weight. Petrie’s contention is
17 without merit.
2
GAF is a scale that indicates the clinician’s overall opinion of an individual’s
psychological, social, and occupational functioning. American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders 376-77 (4th ed., text revision, 2000)
(“DSM-IV-TR”). The GAF scale ranges from 0 to 100; GAF scores from 61-70 indicate some
mild symptoms or some difficulty in social, occupational, or school situations, but general
functioning and the existence of some meaningful personal relationships. DSM-IV-TR at 34.
GAF scores between 51-60 indicate that the individual has moderate symptoms or moderate
difficulty in social, occupational, or school situations. DSM-IV-TR at 34.
7
1 We have held that “an ALJ cannot reject a treating physician’s diagnosis without first
2 attempting to fill any clear gaps in the administrative record.” Rosa, 168 F.3d at 79 (citing Schaal,
3 134 F.3d at 505). “[W]here there are deficiencies in the record, an ALJ is under an affirmative
4 obligation to develop a claimant’s medical history even when the claimant is represented by
5 counsel.” Id. (internal quotation marks omitted). However, we have also recognized “the flip-side
6 of this same proposition”: “where there are no obvious gaps in the administrative record, and where
7 the ALJ already possesses a ‘complete medical history,’ the ALJ is under no obligation to seek
8 additional information in advance of rejecting a benefits claim.” Id. at 79 n.5.
9 Petrie does not point to, nor do we find, any “deficiencies” or “obvious gaps” in the
10 administrative record. To the contrary, the voluminous record is replete with Petrie’s medical
11 records detailing the course of his impairments and treatment. The ALJ was therefore under no
12 obligation to seek additional information from Petrie’s treating sources.
13 3. Failure to Consider All Factors
14 Petrie next contends that the ALJ failed to consider all relevant factors in giving his treating
15 physicians’ opinions minimal weight. This contention is also without merit.
16 When an ALJ refuses to give controlling weight to the medical opinion of a treating
17 physician, he/she must consider various “factors” in deciding how much weight to give the opinion.
18 See 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); Halloran, 362 F.3d at 32. These factors include:
19 “(i) the frequency of examination and the length, nature and extent of the treatment relationship; (ii)
20 the evidence in support of the treating physician’s opinion; (iii) the consistency of the opinion with
21 the record as a whole; (iv) whether the opinion is from a specialist; and (v) other factors brought to
22 the Social Security Administration’s attention that tend to support or contradict the opinion.”
8
1 Halloran, 362 F.3d at 32; Schaal, 134 F.3d at 503. The Commissioner must also give “good
2 reasons” for the weight given to the treating source’s opinion. 20 C.F.R. §§ 404.1527(d)(2),
3 416.927(d)(2); Halloran, 362 F.3d at 32; Schaal, 134 F.3d at 503-04. Nevertheless, where “the
4 evidence of record permits us to glean the rationale of an ALJ’s decision, we do not require that he
5 have mentioned every item of testimony presented to him or have explained why he considered
6 particular evidence unpersuasive or insufficient to lead him to a conclusion of disability.” Mongeur,
7 722 F.2d at 1040; see also Halloran, 362 F.3d at 32; Berry, 675 F.2d at 469. Similarly, where
8 “application of the correct legal standard could lead to only one conclusion, we need not remand.”
9 Schaal, 134 F.3d at 504.
10 Of the above-listed factors, Petrie complains that the ALJ did not expressly consider: 1) the
11 length of the treatment relationship and frequency of the examination; 2) the extent to which the
12 opinions of Drs. Vilas Patil and Suresh Patil were supported by medical and laboratory findings; and
13 3) whether the physicians are specialists. This contention is without merit.
14 At the start, the ALJ clearly considered the length of the treatment relationship and frequency
15 of the examination in assigning minimal weight to Dr. Vilas Patil’s opinion, since he noted that Dr.
16 Patil had only four treatment notes bearing his signature, two of which appeared to be for
17 examinations performed by another provider. Dr. Vilas Patil’s own opinion states that he treated
18 Petrie “sporadically,” and the ALJ also observed that at the time Dr. Patil rendered his opinion, it
19 had been a year since he had last seen Petrie personally. Similarly, the ALJ assigned minimal
20 weight to Dr. Suresh Patil’s opinion because it followed only one initial appointment with Petrie.
21 Moreover, although he ultimately found Dr. Suresh Patil’s opinion to have little weight, the
22 ALJ clearly considered the extent to which it was supported by medical findings. The ALJ credited
9
1 Dr. Suresh Patil’s assigning a GAF score of 55-60 to Petrie, indicating “merely moderate symptoms
2 or difficulty functioning,” and Dr. Patil’s observation that Petrie had a poor treatment compliance
3 record and sometimes stopped his medications altogether, resulting in an increase in symptoms. The
4 ALJ’s express consideration of Dr. Vilas Patil’s medical opinion was brief, moreover, principally
5 because the medical opinion itself contained few medical or laboratory findings to consider. Dr.
6 Vilas Patil described his clinical findings by listing symptoms that Petrie himself reported, and by
7 noting that Petrie displayed “good eye contact, euthymic mood, and anxiety.” Dr. Vilas Patil’s
8 opinion also declined to assign Petrie a GAF score on the basis of “insufficient information.”
9 Finally, the ALJ did not expressly discuss the fact that Drs. Vilas Patil and Suresh Patil were
10 specialists and thus entitled to have their opinions be given greater weight. It is nevertheless clear
11 from the record as a whole that the ALJ properly considered this factor. The regulations provide that
12 an opinion of a specialist regarding medical issues related to his or her area of specialty must be
13 given more weight than the opinion of a source who is not a specialist. See 20 C.F.R.
14 §§ 404.1527(d)(5), 416.927(d)(5). The regulations treat statements from both physicians and
15 psychologists as “medical opinions.” 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2) (“Medical
16 opinions are statements from physicians and psychologists . . . that reflect judgments about the
17 nature and severity of [a claimant’s] impairment(s) . . . .”). Here, the ALJ expressly treated the
18 assessments of Drs. Vilas Patil and Suresh Patil as “medical opinions of record” and noted that,
19 pursuant to a ruling of the Social Security Administration, findings of fact made by a state agency
20 psychological consultant must be treated as an expert opinion, albeit one from a non-examining
21 source. See SSR 96-6p.
22 In sum, the ALJ gave proper consideration to all relevant factors pursuant to applicable
10
1 regulations. Petrie’s argument is therefore unpersuasive.
2 B. Psychiatric Review Technique
3 Petrie next argues that the ALJ failed to apply properly the Psychiatric Review Technique
4 at the second and third steps of the five-step evaluation. Petrie generally repeats his claim, here, that
5 the ALJ failed to give proper weight to the medical opinions of Drs. Vilas and Suresh Patil. We
6 disagree.
7 In addition to the five-step analysis, the regulations “require application of a ‘special
8 technique’ at the second and third steps of the five-step framework.” Kohler v. Astrue, 546 F.3d
9 260, 265 (2d Cir. 2008); see also 20 C.F.R. §§ 404.1520a(a), 416.920a(a). This technique “requires
10 a reviewing authority to determine first whether the claimant has a ‘medically determinable mental
11 impairment.’” Kohler, 546 F.3d at 265-66 (quoting 20 C.F.R. § 404.1520a(b)(1)). “If the claimant
12 is found to have such an impairment, the reviewing authority must ‘rate the degree of functional
13 limitation resulting from the impairment(s) in accordance with paragraph (c),’ . . . which specifies
14 four broad functional areas.” Id. at 266 (quoting 20 C.F.R. § 404.1520a(b)(2)). These areas are:
15 “(1) activities of daily living; (2) social functioning; (3) concentration, persistence or pace; and (4)
16 episodes of decompensation.” Id. (citing 20 C.F.R. § 404.1520a(c)(3)), see also 20 C.F.R
17 § 416.920a(c)(3).
18 Each of the first three areas is rated on a scale of “[n]one, mild, moderate, marked, and
19 extreme.” 20 C.F.R. §§ 404.1520a(c)(4), 416.920a(c)(4). The fourth area is rated on a scale of
20 “[n]one, one or two, three, four or more.” Id. “[I]f the degree of limitation in each of the first three
21 areas is rated ‘mild’ or better, and no episodes of decompensation are identified, then the reviewing
22 authority generally will conclude that the claimant’s mental impairment is not ‘severe’ and will deny
11
1 benefits.” Kohler, 546 F.3d at 266. By contrast, if the claimant’s mental impairment is severe, then
2 the reviewing authority must “compare the relevant medical findings and the functional limitation
3 ratings to the criteria of listed mental disorders” to determine whether the impairment “meets or is
4 equivalent in severity to any listed mental disorder.” Id. (citing 20 C.F.R. § 404.1520a(d)(2)). If
5 yes, then the claimant is “disabled.” Id. If not, the reviewing authority must then assess the
6 claimant’s residual functional capacity. Id. (citing 20 C.F.R. § 404.1520a(d)(3)).
7 The regulations also require that the application of the special technique be documented. Id.8 (citing 20 C.F.R. § 404.1420a(e)). Generally, a medical or psychological consultant will complete
9 a standard document, known as a “Psychiatric Review Technique Form” (“PRTF”). Id. Pursuant
10 to the regulations, the ALJ’s written decision must “reflect application of the technique,
11 and . . . ‘include a specific finding as to the degree of limitation in each of the [four] functional
12 areas.’” Id. (quoting 20 C.F.R. § 404.1520a(e)(2)).
13 In this case, the ALJ relied on a PRTF completed by a state agency reviewing psychologist,
14 who concluded in 2005 that Petrie’s mental impairments caused a mild restriction of activities of
15 daily living, and moderate difficulties in maintaining social function, concentration, persistence, or
16 pace. Although the reviewing psychologist found the record to contain insufficient evidence of
17 repeated episodes of decompensation, each of extended duration, the ALJ found that Petrie had no
18 such repeated episodes because Petrie was hospitalized only once for four days during the relevant
19 time period. The ALJ thus adopted the PRTF in part and proceeded to assess Petrie’s RFC.
20 We agree with the district court that the ALJ properly applied the special technique and that
21 substantial evidence supported his conclusion. Evidence in the record consistently showed that
22 Petrie was able to dress, bathe, and groom himself on a daily basis. Petrie himself stated that he
12
1 could cook and prepare food, manage money, use public transportation, and perform general
2 cleaning, laundry, and shopping. A consultative examination further found that Petrie’s attention,
3 concentration, and memory skills were intact, and that his intellectual functioning was in the average
4 range. Petrie was even offered a cleaning job by the manager of his residence, which Petrie later
5 accepted. In light of this evidence, we decline to find that the ALJ erred in his application of the
6 Psychiatric Review Technique.
7 C. Vocational Expert and Past Work
8 Petrie finally argues that the ALJ was required to consult a vocational expert in determining
9 whether, under step four, Petrie was capable of performing his past work as a cook. Petrie also adds
10 that the ALJ erroneously identified a semi-skilled occupation as unskilled work that Petrie was
11 capable of performing.
12 Petrie’s arguments are unavailing. Under the fourth step of the five-step analysis, “the
13 claimant has the burden to demonstrate an inability to return to h[is] previous specific job and an
14 inability to perform h[is] past relevant work generally.” Jasinski v. Barnhart, 341 F.3d 182, 185 (2d
15 Cir. 2003) (emphasis omitted). This inquiry “requires separate evaluations of the previous specific
16 job and the job as it is generally performed.” Id. The Dictionary of Occupational Titles (“DOT”)
17 is used to evaluate jobs as they are generally performed. See id. While an expert “is often called
18 upon” to explain the requirements of particular jobs, see id., step four of the analysis does not
19 require that an ALJ consult an expert. See 20 C.F.R. §§ 404.1560(b)(2), 416.960(b)(2) (“A
20 vocational expert or specialist may offer expert opinion testimony . . . about whether a person with
21 the physical and mental limitations imposed by the claimant’s medical impairment(s) can meet the
22 demands of the claimant’s previous work, either as the claimant actually performed it or as generally
13
1 performed in the national economy.” (emphasis added)). The ALJ therefore did not err in declining
2 to consult a vocational expert.
3 In addition, we agree with the district court that the ALJ’s citation to a semi-skilled cooking
4 occupation in the DOT was a mere typographical error. The ALJ’s citation to DOT code number
5 313.687-010 (“cook helper, pastry”), differs in only one digit from two unskilled jobs listed in the
6 DOT. According to the DOT, a kitchen helper sweeps and mops floors, washes pots and pans by
7 hand, transfers supplies and equipment by hand, and washes and peels vegetables with a knife or
8 peeling machine. DOT 318.687-010. Similarly, a cook helper washes, peels, and cuts vegetables
9 and fruits, and cleans, cuts, and grinds meats, poultry, and seafood. DOT 317.687-010. A cook
10 helper also helps prepare and measure food items and ingredients, and stores foods in designated
11 areas. Id.12 Here, Petrie stated that his general job duties included making sandwiches and salads, cutting
13 and preparing foods, opening and closing the “grill area,” dishwashing, general custodial work, and
14 unloading and stocking supplies. As Petrie’s own submissions confirm that his previous work duties
15 are substantially the same as the unskilled duties of a kitchen helper or a cook helper, we do not
16 believe that the ALJ’s determination was improper on this ground.
17 D. Conclusion
18 We have reviewed the parties’ remaining arguments and find them to be moot or without
19 merit. The judgment of the district court is therefore AFFIRMED.
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
14