(SS) Culverson v. Commissioner of Social Security ( 2022 )

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 JASON ALLEN CULVERSON, Case No. 1:21-cv-01033- EPG 13 Plaintiff, FINAL JUDGMENT AND ORDER REGARDING PLAINTIFF’S SOCIAL 14 v. SECURITY COMPLAINT 15 COMMISSIONER OF SOCIAL SECURITY, (ECF Nos. 1, 16). 16 Defendant. 17 18 This matter is before the Court on Plaintiff’s complaint for judicial review of an 19 unfavorable decision by the Commissioner of the Social Security Administration regarding his 20 application for disability and supplemental security income benefits. The parties have consented 21 to entry of final judgment by the United States Magistrate Judge under the provisions of 28 22 U.S.C. § 636(c) with any appeal to the Court of Appeals for the Ninth Circuit. (ECF No. 9). 23 Plaintiff argues that: (1) “The ALJ harmfully erred by failing to identify and resolve an 24 apparent conflict between the DOT [Dictionary of Occupational Titles,] and VE [vocational 25 expert] testimony per SSR 00-4p”; and (2) “The MRFC [mental residual functional capacity] is 26 not supported by substantial evidence.” (ECF No. 16, p. 2). 27 Having reviewed the record, administrative transcript, the briefs of the parties, and 28 the applicable law, the Court finds as follows: 2 A. DOT and VE Testimony 3 Plaintiff first argues that the ALJ erred in failing to identify and resolve an apparent 4 conflict between the DOT and VE Testimony. This issue implicates the ALJ’s assessment of the 5 following residual functional capacity for Plaintiff: 6 After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity (RFC) to perform medium work as 7 defined in 20 CFR 404.1567(c) and 416.967(c) except as restricted by the following: the claimant can sit, stand, walk for up to 6 hours each in an 8-hour 8 day; he can lift/carry up to 50 pounds occasionally and 25 pounds or less 9 frequently, and may push/pull within those weight restrictions; he is limited to frequent climbing of ramps/stairs, balancing, stooping, kneeling, crouching and 10 crawling; he should not be exposed to unprotected heights or dangerous moving 11 mechanical parts; he is limited to simple, routine tasks and simple work-related decisionmaking; he is limited to occasional interaction with supervisors; he should 12 be limited to work in isolation, meaning that other individuals, but not many, may be present in the vicinity (e.g., during a graveyard shift in a commercial building 13 where there may be some building tenants and security present but relatively few 14 since the shift is outside normal business hours); only incidental interactions with others are required in order to accomplish work. 15 (A.R. 27). Based on the RFC’s limiting Plaintiff to occasional and incidental interactions with 16 others, the ALJ asked the VE at the hearing whether “the DOT address[es] things like working in 17 isolation” as defined in a hypothetical by the ALJ. (A.R. 56). The VE replied that the DOT did 18 not address this issue but that she “utilized [her] experience working with employers, job 19 placement, individuals with disabilities on occasion as well as [her] peers and research.” (A.R. 20 57). The ALJ posed a series of hypotheticals to the VE to determine what jobs the Plaintiff may 21 be able to perform. (A.R. 55-57). Based on the VE’s testimony; the RFC; and the Plaintiff’s age, 22 education, and work experience, the ALJ concluded that a significant number of jobs existed that 23 Plaintiff could perform, such as the occupations of janitor/cleaner or landscape worker. (A.R. 32- 24 33). 25 Under the DOT, the occupation of janitor/cleaner has the following description: 26 Cleans rooms and halls in commercial establishments, such as hotels, restaurants, 27 clubs, beauty parlors, and dormitories, performing any combination of following duties: Sorts, counts, folds, marks, or carries linens. Makes beds. Replenishes 28 supplies, such as drinking glasses and writing supplies. Checks wraps and renders Performs other duties as described under CLEANER (any industry) I Master Title. 2 May be designated according to type of establishment cleaned as Beauty Parlor Cleaner (personal ser.); Motel Cleaner (hotel & rest.); or according to area cleaned 3 as Sleeping Room Cleaner (hotel & rest.). 4 DOT Code 323.687-014, available at 1991 WL 672783.1 5 Under the DOT, the occupation of landscape worker has the following description: 6 Maintains grounds and areas along highway right-of-way of city, state, and national parks: Sows grass seed, using spreader, or plants trees, shrubs, or flowers, 7 according to instructions and planned design of landscaped area, using handtools. 8 Applies herbicide or mulch to designated areas, using sprayers. Grubs and weeds around bushes, trees, and flower beds. Trims hedges and prunes trees, using 9 handtools. Mows lawns, using hand mower or power-driven lawnmower. Picks up and burns or carts away paper and rubbish. Repairs and paints benches, tables, and 10 guardrails, and assists in repair of roads, walks, buildings, and mechanical 11 equipment, using handtools. May live on-site and be designated Campground Caretaker (government ser.). May be referred to as Groundskeeper, Parks and 12 Grounds (government ser.). 13 DOT Code 406.687-010, available at 1991 WL 673342. 14 Plaintiff argues that there was an apparent conflict between the DOT and the VE’s 15 testimony about the availability of jobs, which conflict the ALJ harmfully erred in failing to 16 resolve. (ECF No. 16, pp. 8-12). Specifically, Plaintiff contends that the DOT’s descriptions of 17 these occupations do not address the degree to which a worker interacts with others and the ALJ 18 should have inquired further as to how many jobs for these occupations are available that account 19 for the RFC’s limitations on interaction with others. 20 Plaintiff’s argument relies on SSR 00-4p, which, in pertinent part, provides as follows: 21 Occupational evidence provided by a VE . . . generally should be consistent with the occupational information supplied by the DOT. When there is an apparent 22 unresolved conflict between VE . . . evidence and the DOT, the adjudicator must elicit a reasonable explanation for the conflict before relying on the VE . . . 23 evidence to support a determination or decision about whether the claimant is 24 disabled. At the hearings level, as part of the adjudicator’s duty to fully develop the record, the adjudicator will inquire, on the record, as to whether or not there is 25 such consistency. 26 1 DOT Code 323.687-014 corresponds to “cleaner, housekeeping.” DOT Code 382.664-010, available at 27 1991 WL 673265, corresponds to “janitor” with a similar description of cleaning duties but also notes some maintenance type responsibilities. The parties all cite to DOT Code 323.687-014 as the applicable 28 section, so the Court will refer to that section going forward. 2 Evidence, & Other Reliable Occupational Info. in Disability Decisions, SSR 00-4P (S.S.A. Dec. 3 4, 2000), available at 2000 WL 1898704. Upon review of the record, the Court finds no error 4 regarding the requirements of SSR 00-4P. 5 Notably, “[f]or a difference between an expert’s testimony and the Dictionary’s listings to 6 be fairly characterized as a conflict, it must be obvious or apparent. This means that the testimony 7 must be at odds with the Dictionary’s listing of job requirements that are essential, integral, or 8 expected.” Gutierrez v. Colvin, 844 F.3d 804, 808 (9th Cir. 2016). As discussed above, here the 9 VE testified that the DOT did not address things like working in isolation as defined by the ALJ. 10 (A.R. 56). Accordingly, because the DOT did not address this issue, the VE’s testimony cannot 11 be said to “be at odds” with the job requirements for the occupations of janitor/cleaner and 12 landscape worker. See Villalpando v. Colvin, No. 8:16-CV-00056 (VEB), 2016 WL 6839342, at 13 *5 (C.D. Cal. Nov. 21, 2016) (collecting cases noting that “there can be no conflict between the 14 vocational expert’s testimony and the DOT where . . . the DOT is silent on the subject in 15 question”). 16 Moreover, “[a]n ALJ may take administrative notice of any reliable job information, 17 including information provided by a VE” because “[a] VE’s recognized expertise provides the 18 necessary foundation for his or her testimony.” Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 19 2005). Here, the VE testified that the DOT did not address working in isolation but she “utilized 20 her experience working with employers, job placement, individuals with disabilities on occasion 21 as well as [her] peers and research.”2 (A.R. 57). Plaintiff, represented by counsel at the hearing, 22 raised no objection to the VE’s experience, qualifications, or testimony regarding the availability 23 2 Citing a portion of the VE’s testimony, Plaintiff suggests that the VE failed to consider the availability of 24 jobs that require limited interaction with others. (ECF No. 16, p. 9). However, the cited testimony 25 concerned what the ALJ phrased in a hypothetical as “true isolation, meaning there are no other individuals in this person’s immediate vicinity so something like work from a home office” that allowed 26 for electronic communication. (A.R. 57). While the VE testified that she “couldn’t give [the ALJ] any numbers because [she had] never looked up that particular thing,” it is clear from the context of the 27 hearing that the ALJ did not use this hypothetical to determine the availability of jobs for janitors/cleaners or landscape workers because its limitation of “true isolation,” i.e., working “by electronic means,” would 28 not apply to janitors/cleaners or landscape workers who work on-site. (AR 57-58). 2 Sec., 740 F.3d 519, 527 (9th Cir. 2014) (noting that, where claimant did not challenge the VE’s 3 testimony regarding the number of jobs available to him, there was nothing to suggest that a 4 significant number of jobs were unavailable). 5 Based on the foregoing, the Court concludes that there was no apparent conflict for the 6 ALJ to resolve and the ALJ properly relied on the VE’s testimony as providing a foundation for 7 the availability of jobs consistent with Plaintiff’s RFC. 8 B. MRFC 9 Plaintiff argues that the ALJ’s MRFC assessment is not supported by substantial evidence 10 because the ALJ failed to account for certain limitations assessed by state agency psychological 11 consultant Dr. J. Collado despite giving great weight to this opinion. (ECF No. 16, p. 12 – citing 12 AR 113-15). Specifically, Plaintiff argues that the MRFC’s limitation of Plaintiff to simple 13 repetitive tasks and to limited contact with others did not reflect the following moderate 14 limitations assessed by Dr. Collado: 15 Mr. Culverson was “moderately” limited in his “ability to perform activities within a schedule, maintain regular attendance and be punctual within customary 16 tolerances;” “moderately” limited in his ability to “complete a normal workday and workweek without interruptions from psychologically based symptoms and to 17 perform at a consistent pace without an unreasonable number and length of rest 18 periods;” “moderately” limited in his ability to accept instructions and respond appropriately to criticism from supervisors;” “moderately” limited in his ability to 19 “respond appropriately to changes in the work setting” and “moderately” limited in 20 his ability to set realistic goals or make plans independently of others. 21 3 The Court notes that Plaintiff’s motion for summary judgment cites data from “Occu Collect” that 22 Plaintiff contends shows that the occupations of janitor/cleaner and landscape worker require more extensive interaction with others than common experience may suggest. (ECF No. 16, pp. 11-12). 23 However, Occu-Collect is not included in the list of published sources for “reliable job information,” such as the DOT, listed in 20 C.F.R. § 404.1566(d). And “the ALJ is not required to reconcile conflicts between 24 the VE’s testimony and non-DOT sources,” such as Occu Collect. Tommy D. J. v. Saul, No. EDCV 20- 25 1013-RAO, 2021 WL 780479, at *5 (C.D. Cal. Mar. 1, 2021). Moreover, “Social security disability claimants must raise challenges to the accuracy of a VE’s job-number estimates at some point during 26 administrative proceedings to preserve the challenge on appeal in federal district court.” White v. Kijakazi, No. 20-16846, 2022 WL 3149224, at *6 (9th Cir. Aug. 8, 2022) (considering job estimates where claimant 27 had submitted them to the Appeals Council) (internal citation and quotation marks omitted). Here, Plaintiff does not state, nor does the record reveal, that Plaintiff presented any job estimates from “Occu Collect” 28 during the administrative proceedings. 2 A claimant’s RFC is “the most [a claimant] can still do despite [his] limitations.” 20 3 C.F.R. §§ 404.1545(a), 416.945(a); see also 20 C.F.R. Part 404, Subpart P, Appendix 2, 4 § 200.00(c) (defining an RFC as the “maximum degree to which the individual retains the 5 capacity for sustained performance of the physical-mental requirements of jobs”). “In 6 determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record, 7 including, inter alia, medical records, lay evidence, and the effects of symptoms, including pain, 8 that are reasonably attributed to a medically determinable impairment.” Robbins v. Soc. Sec. 9 Admin., 466 F.3d 880, 883 (9th Cir. 2006) (internal quotation marks and citations omitted); see; 10 Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999) (holding that ALJ was 11 “responsible for resolving conflicts” and “internal inconsistencies” within doctor’s reports); 12 Tommasetti v. Astrue, 533 F.3d 1035, 1041-1042 (9th Cir. 2008) (“[T]he ALJ is the final arbiter 13 with respect to resolving ambiguities in the medical evidence.”). 14 In reviewing findings of fact with respect to such determinations, this Court determines 15 whether the Commissioner’s decision is supported by substantial evidence. 42 U.S.C. § 405(g). 16 Substantial evidence means “more than a mere scintilla,” Richardson v. Perales, 402 U.S. 389, 17 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 18 (9th Cir. 1975). It is “such relevant evidence as a reasonable mind might accept as adequate to 19 support a conclusion.” Richardson, 402 U.S. at 401 (internal citation omitted). 20 True, the ALJ gave great weight to Dr. Collado’s opinion, and a similar opinion from a 21 different state agency consultant, Dr. Brill, that assessed moderate limitations relating to 22 Plaintiff’s ability to work with others.4 (A.R. 31 – citing A.R. 74, 87, 102, 115). However, 23 Plaintiff overlooks that these opinions, despite assessing moderate limitations, contained specific 24 functional limitations that supported the assessed MRFC. Specifically, both doctors concluded 25 that Plaintiff had “the residual functional capacity consistent with simple basic work-activities 26 that can [b]e learned in up to one month” and Plaintiff would “need a setting with reduced contact 27 4 As the ALJ noted, “[t]he record does not contain a relevant medical opinion from a treating source 28 regarding the claimant's capacity for work-related activity.” (A.R. 31). 1 | with supervisors, coworkers, and the public.” (A.R. 74, 115). The ALJ incorporated these 2 || opinions into the RFC by limiting Plaintiff to “simple, routine tasks,” “occasional interaction with 3 || supervisors,” and “incidental interactions with others.” (A.R. 27). Thus, the MRFC was 4 | ultimately consistent with the doctors’ medical opinions. See Stubbs-Danielson v. Astrue, 539 5 | F.3d 1169, 1174 (th Cir. 2008) (concluding that RFC properly found claimant could perform 6 | “simple, routine, repetitive sedentary work, requiring no interaction with the public” where there 7 || was a medical opinion that claimant could “carry out simple tasks” despite “several moderate 8 | limitations in other mental areas”). 9 Accordingly, the Court concludes that the MRFC assessment is supported by substantial 10 | evidence. 11 | IL CONCLUSION AND ORDER 12 Based on the above reasons, the decision of the Commissioner of Social Security is 13 | affirmed. And the Clerk of the Court is directed to close this case. 14 15 IT IS SO ORDERED. 16 | Dated: _ August 23, 2022 [sJe— Fahey □ 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28