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Wentz v. Commissioner Social Security Administration

United States Court of Appeals, Ninth Circuit
Oct 26, 2010
401 F. App'x 189 (9th Cir. 2010)

Summary

holding that ALJ's reliance on VE's testimony was proper where ALJ asked the VE to identify any conflicts with the DOT, the VE identified none, and the claimant's attorney did not challenge that testimony

Summary of this case from Hamilton v. Commissioner of Social Security

Opinion

No. 10-35003.

Submitted October 8, 2010.

The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2)(C).

Filed October 26, 2010.

Tim Wilborn, Wilborn Law Office, PC, Oregon City, OR, for Plaintiff-Appellant.

Adrian Lee Brown, Assistant U.S. Attorney, Office of the U.S. Attorney, Port-land, OR, Terrye Erin Shea, Esquire, Special Assistant U.S. Attorney, Social Security Administration, Office of the General Counsel, Seattle, WA, for Defendants Appellee.

Appeal from the United States District Court for the District of Oregon, Garr M. King, District Judge, Presiding. DC No. 3:08 cv-0661 PK.

Before: TASHIMA, PAEZ, and CLIFTON, Circuit Judges.



MEMORANDUM

This disposition is not appropriate for publication and is not precedent except as provided by9thCir. R. 36-3.

Debra Wentz appeals the district court's judgment affirming the Social Security Commissioner's denial of her application for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I

Wentz contends that the ALJ erred at Step 4 of the Sequential evalation Process by rejecting there categories by rejecting three categories of evidence: (1) Wentz's testimony concerning severe and disabling symptoms, such as an inabilty to sit for longer than twenty minutes;(2) the corroborating testimony of three lay witnesses; and (3) the opinions of two treating physicians, Dr. Molloy and Dr. Kenyon.

We conclude that the ALJ properly rejected each category of evidence. Wentz's testimony about the severity of her symptoms conflicted with reports by her psychiatrist, Dr. Sally Godard, indicating that Wentz was in fair health during much of the relevant time period. Wentz's testimony also conflicted with evidence of her daily activities, which suggested that she led a more active life than her alleged symptoms would permit. This contradictory evidence adequately supports the ALJ's negative credibility determination under the clear and convincing standard. See Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). Dr. Godard's reports and the evidence of daily activities also conflict with, and support the ALJ's rejection of, the lay witness testimony. See Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009). Finally, the ALJ did not err by discounting the treating physicians' opinions, which were based almost entirely on Wentz's subjective complaints. See Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009).

II.

Wentz also contends that the ALJ made two errors at Step 5. First, she argues the ALJ propounded an inaccurate hypothetical to the vocational expert ("VE"). The hypothetical asked the VE to assume that Wentz, due to mental impairments, could perform only "simple 1, 2, 3 step work." In contrast, in the residual functional capacity ("RFC") determination, the ALJ described Wentz's mental impairment as limiting her to "simple, routine, repetitive work." Although the hypothetical described the mental impairment differently than the RFC, this difference in diction does not render the hypothetical inaccurate. Wentz does not cite any authority suggesting that a VE would understand the phrase "simple, routine, repetitive work" to impose more severe limitations than the phrase "simple 1, 2, 3 step work." And the record shows that the VE understood the "simple 1, 2, 3" limitation to be so restrictive as to permit performance of only unskilled jobs, while excluding both skilled and semiskilled work. Accordingly, we conclude that the discrepancy between the language of the hypothetical and the RFC was immaterial. See Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995) (noting that VE hypothetical is proper so long as it "reflects all the claimant's limitations").

Second, Wentz contends that the VE's testimony (on which the ALJ relied) conflicted with the Dictionary of Occupational Titles ("DOT"). To rely on vocational expert testimony, the ALJ must ask the VE if his or her testimony is consistent with the DOT. Massachi v. Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 2007) (citing SSR 00-4p). If the VE identifies a conflict with the DOT, the ALJ must obtain a "reasonable explanation" for the conflict before relying on the testimony. Id. at 1153.

Here, the ALJ asked the VE to identify any conflicts between her testimony and the DOT, and the VE identified none. Wentz's attorney then cross-examined the VE, but did not challenge her representation that her testimony comported with the DOT. Accordingly, the ALJ met his obligations under Massachi and SSR 00-4p to investigate potential conflicts with the DOT, and his reliance on the VE testimony was therefore proper.

AFFIRMED.


Summaries of

Wentz v. Commissioner Social Security Administration

United States Court of Appeals, Ninth Circuit
Oct 26, 2010
401 F. App'x 189 (9th Cir. 2010)

holding that ALJ's reliance on VE's testimony was proper where ALJ asked the VE to identify any conflicts with the DOT, the VE identified none, and the claimant's attorney did not challenge that testimony

Summary of this case from Hamilton v. Commissioner of Social Security

finding ALJ entitled to rely on VE's testimony where on cross-examination, Plaintiff's representative did not challenge VE's testimony regarding potential conflict with DOT

Summary of this case from Metoyer v. Colvin

finding ALJ reliance on VE testimony proper where ALJ asked VE to identify conflicts and VE identified none

Summary of this case from Metoyer v. Colvin

finding that ALJ did not present improper hypothetical to vocational expert where ALJ stated claimant was limited to "simple 1, 2, 3 step work but found in his RFC assessment that Plaintiff was limited to "simple, routine, repetitive work"

Summary of this case from Morris v. Astrue

concluding "the ALJ met his obligations under Massachi and SSR 00-4p to investigate potential conflicts with the DOT"

Summary of this case from Go v. Berryhill

concluding "the ALJ met his obligations under Massachi and SSR 00-4p to investigate potential conflicts with the DOT"

Summary of this case from Norwood v. Colvin

affirming ALJ opinion when claimant's attorney cross-examined the VE, but did not challenge her representation that her testimony comported with the DOT

Summary of this case from Schneider v. Colvin

emphasizing that an ALJ is required to directly ask the VE "whether her testimony conflicted with the DOT," and distinguishing cases where the "ALJ asked the VE if her testimony was consistent with the DOT, not whether it conflicted with the DOT," and where the "ALJ asked the VE whether her opinion was based on the DOT."

Summary of this case from Valles v. Colvin

In Wentz, the court found that the ALJ met his obligations under Massachi and SSR 00-4p, noting that "the ALJ asked the VE to identify any conflict between her testimony and the DOT, and the VE identified none."

Summary of this case from Mejia v. Colvin

In Wentz, the Ninth Circuit found that an ALJ adequately determined whether the VE's testimony deviated from the DOT where (1) the ALJ asked the VE to identify any conflicts between her testimony and the DOT; (2) the VE identified no such conflicts; and (3) the claimant's attorney cross-examined the VE but did not challenge her representation that her testimony comported with the DOT.

Summary of this case from Norris v. Colvin

In Wentz, the Ninth Circuit found that an ALJ's reliance on a VE's testimony was proper where the ALJ asked the VE to identify any conflicts between her testimony and the DOT, the VE identified no such conflicts, and the claimant's attorney cross-examined the VE but did not challenge her representation that her testimony comported with the DOT.

Summary of this case from Norris v. Colvin

In Wentz, the plaintiff alleged that an error occurred at step five of the ALJ's analysis because the VE's testimony (on which the ALJ relied) conflicted with the Dictionary of Occupational Titles ("DOT").

Summary of this case from Marquez v. Astrue
Case details for

Wentz v. Commissioner Social Security Administration

Case Details

Full title:Debra WENTZ, Plaintiff-Appellant, v. COMMISSIONER SOCIAL SECURITY…

Court:United States Court of Appeals, Ninth Circuit

Date published: Oct 26, 2010

Citations

401 F. App'x 189 (9th Cir. 2010)

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