Opinion
For Brad H. Sell, Plaintiff: Steven G Rosales, LEAD ATTORNEY, Law Office of Lawrence D Rohlfing, Santa Fe Springs, CA.
For Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant: Assistant U.S. Attorney LA-CV, LEAD ATTORNEY, Office of U.S. Attorney, Civil Division, Los Angeles, CA; Assistant U.S. Attorney LA, LEAD ATTORNEY, Office of the General Counsel for Social Security Adm., San Francisco, CA; Tova D Wolking, LEAD ATTORNEY, U.S. Attorney's Office, Social Security Administration, San Francisco, CA.
ORDER AFFIRMING DECISION OF ADMINISTRATIVE LAW JUDGE
HON. MICHAEL R. WILNER, UNITED STATES MAGISTRATE JUDGE.
I. SUMMARY OF RULING
Plaintiff Sell challenges the denial of his application for Social Security benefits. On appeal, Plaintiff contends that the Administrative Law Judge (ALJ) erred by finding that Plaintiff has the ability to perform his past employment.
The Court disagrees. Substantial evidence supports the ALJ's decision that Plaintiff was able to hold one of his previous jobs as Plaintiff actually performed it. As a result, the Court affirms the ALJ's decision.
II. PLAINTIFF'S CONDITIONS AND PROCEEDINGS BELOW
Plaintiff applied for disability benefits. Following an administrative hearing, the ALJ found that several of Plaintiff's physical and mental conditions constituted " severe impairments" as that term is used under federal regulations. (AR 22.)
The ALJ determined that Plaintiff had the residual functional capacity (RFC) to perform " light work" with numerous additional exertional and non-exertional limitations. (AR 24.) The RFC specifically precluded Plaintiff from performing " inherently stressful jobs such as take complaints or work as an emergency medical technician." (Id.) The RFC also required that Plaintiff be able to stand and stretch every hour for one to three minutes. (Id.)
A vocational expert testified that Plaintiff could perform one of his past jobs as an administrative clerk with this RFC. (AR 106.) The ALJ concluded that Plaintiff was not disabled and denied benefits. (AR 29-30.)
III. DISCUSSION
Plaintiff contends that the RFC precluded him from holding the identified position, and that the ALJ erred in relying on the vocational expert's testimony on this topic.
A. Facts and Decision Below
Among the jobs that Plaintiff previously held for nearly two years was a position as an assistant construction manager. (AR 177, 179.) In a questionnaire submitted to the agency, Plaintiff answered the question " What did you do all day?" He described his job as " manag[ing] paperwork and site construction activities." (AR 179.) He characterized his position as requiring three hours of walking, two hours of standing, and three hours of sitting each day. (Id.) Plaintiff further described the position as requiring light lifting, no carrying, and no supervision of others. (Id.) Plaintiff made no mention of handling work-related complaints in the questionnaire or on the form's addendum. (AR 179, 184.)
At the hearing, Plaintiff testified about the construction management job in somewhat more detail. He explained that he worked in a trailer at a job site. (AR 79.) Plaintiff further testified that he was involved in " handling documents, going into a computer, and then also walking the job site to make sure that the contractors were following" the construction plans. (Id.) Again, Plaintiff did not disclose that his job actually involved handling complaints or other stressful tasks in any capacity. He also did not indicate that he was required to sit at a desk all day without respite.
After reviewing Plaintiff's work history report and listening to Plaintiff's testimony, a vocational expert testified about Plaintiff's ability to perform his past relevant work. The expert equated Plaintiff's past construction management position with the job of " administrative clerk" under the Labor Department's Dictionary of Titles (DOT). (AR 104-05.) The applicable DOT listing (219.362-010) includes " adjusts complaints" among the numerous functions that an administrative clerk could be expected to perform. The DOT listing says nothing about whether the job may be performed by a person required to stand briefly on a regular basis.
The DOT is a publication that sets forth the components and requirements of various jobs. The DOT listings establish the " minimum skill level and physical exertion capacity required to perform" a particular job. Brault v. Soc. Sec. Admin., 683 F.3d 443, 446 (9th Cir. 2012).
The ALJ presented a hypothetical question to the vocational expert using Plaintiff's RFC. (AR 105-06.) The hypothetical specifically included the limitation that Plaintiff could not work in " inherently stressful jobs such as taking complaints or work as an [E.M.T.]." (AR 106.) The vocational expert opined that Plaintiff could perform his previous construction management job as listed in the DOT " and as actually performed." (Id.)
Based on the Court's review of the hearing transcript (which stated that Plaintiff could not work as an " ante") and the RFC in the written decision, it is apparent that the ALJ's actual limitation was that Plaintiff not hold a stressful job like an " E.M.T." -- that is, an emergency medical technician.
Plaintiff was present for the ALJ's presentation of the RFC to the expert and the expert's opinion regarding Plaintiff's past work. After that, the ALJ gave Plaintiff the opportunity to tell the ALJ " anything else you think I ought to know before I make a decision." (AR 108.) Plaintiff did not provide more information about his past work. Although Plaintiff was not represented by an attorney, the Court observes that Plaintiff spoke freely, candidly, and directly with the ALJ throughout the hearing.
In her written decision, the ALJ concluded that Plaintiff previously worked as an administrative clerk at a " light level." (AR 29.) The ALJ found that the job did not require " performing high stress tasks such as taking complaints." (Id.) Additionally, the ALJ expressly determined that Plaintiff could perform his past relevant work as an administrative clerk as he actually performed it. (Id.) The ALJ therefore found Plaintiff not disabled.
B. Standard of Review and Relevant Law
Under 42 U.S.C. § 405(g), a district court may review the agency's decision to deny benefits. The ALJ's findings and decision must be upheld if they are supported by substantial evidence and are free of legal error. Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). Substantial evidence is proof in an amount or of a nature that " a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). If the evidence presented in an administrative proceeding " can reasonably support either affirming or reversing the decision" of the agency, this Court " may not substitute [its] judgment for that of the Commissioner" or the ALJ. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).
At step four of the sequential analysis used in Social Security disability cases, the relevant inquiry is whether a claimant can demonstrate that he or she is unable to perform past relevant work " either as actually performed or as generally performed in the national economy." Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1166 (9th Cir. 2008) (emphasis added). There is no requirement that the ALJ make " explicit findings at step four regarding a claimant's past relevant work both as generally performed and as actually performed." Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001) (emphasis in original). An ALJ may conclude that a person is able to perform a previous job as the person actually performed it independent from the DOT's description of the general characteristics of the job. That conclusion itself must be " supported by substantial evidence in the record." Tweedy v. Astrue, 460 F.App'x 659, 661 (9th Cir. 2011). The claimant bears the burden of proof at this step. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). Nevertheless, the ALJ " has a duty to make the requisite factual findings to support his conclusion." Pinto, 249 F.3d at 845. " This requires specific findings as to the claimant's residual functional capacity, the physical and mental demands of the past relevant work, and the relation of the residual functional capacity to the past work." Id.
The ALJ may use two sources of information to define a claimant's past relevant work as actually performed: (1) " a properly completed vocational report"; and (2) " the claimant's own testimony." Id. at 845. A claimant's own testimony may be sufficient to establish that the claimant can or cannot perform the former job. Abreu v. Astrue, 303 F.App'x 556, 559 (9th Cir. 2008) (plaintiff's " testimony itself provides substantial evidence to support the ALJ's conclusion that [claimant] could perform his past relevant work"). Although not required, an ALJ may also use vocational expert testimony to establish a claimant's ability to perform past work. Such testimony is " useful, but not required." Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993); Parker v. Astrue, 384 F.App'x 596 (9th Cir. 2010) (where evidence sufficiently supports the ALJ's classification of past relevant work, the ALJ was not required to seek the input of a vocational expert).
C. Analysis
The ALJ affirmatively concluded that Plaintiff was capable of performing his past construction management job as he actually performed it even with the limitations incorporated in the RFC. That decision is supported by substantial evidence in the record. As a result, the ALJ's decision denying benefits must be affirmed.
Here, the ALJ made the " requisite findings" to support the step-four determination. Pinto, 249 F.3d at 844-45. The RFC contained a limitation based on Plaintiff's mental health status that precluded him from holding an " inherently stressful" job like handling complaints or working as a paramedic / EMT. Nowhere in the record -- Plaintiff's work history report, his testimony at the administrative hearing, or after hearing the colloquy between the ALJ and the vocational expert about Plaintiff's past employment -- did Plaintiff ever contend that his construction job approached that level of stress. The ALJ therefore had no evidentiary basis to conclude that Plaintiff was unable to handle his previous job as he actually held and performed it. Bustamante, 262 F.3d at 953-54.
And, although the written decision dealt with the question rapidly, the ALJ made an adequate factual finding -- that was certainly supported by substantial evidence -- that Plaintiff's RFC did not preclude him from holding his former construction job. Pinto, 249 F.3d at 845; Carmickle, 533 F.3d at 1166; Abreu, 303 F.App'x at 559. Whether the ALJ relied on Plaintiff's statements about his old job, the expert's analysis, or both, there was ample proof that Plaintiff's no-stress RFC limitation did not pose an obstacle to him performing the job. Pinto, 249 F.3d at 845; Matthews, 10 F.3d at 681.
Instead, Plaintiff contends that, because the DOT listing for the position includes the phrase " adjust complaints, " he was unable to perform the job as it is generally performed. (Docket # 19 at 9-11.) Maybe so. But Social Security regulations required him to prove that he couldn't hold his old job under both criteria; that is, how he actually performed it and how it is generally performed. Carmickle, 533 F.3d at 1166. If the ALJ properly concluded that Plaintiff's RFC did not prevent him from holding his previous job in the manner that he actually worked, that is the end of the analysis. The ALJ did so here. That decision is clearly supported by proof that a " reasonable mind [would] accept as adequate" to support the decision. Burch, 400 F.3d at 679.
To the extent that the vocational expert incorrectly opined that Plaintiff could perform the clerk job as listed in the DOT, any error by the ALJ in accepting that conclusion was surely harmless. Plaintiff cannot demonstrate that he was prejudiced by that decision: the ALJ was still entitled to deny the application based on the " actually performed" analysis described above. Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012) (reversal " not automatic" in disability cases, but requires showing of likelihood of different result on remand).
Plaintiff's complaints regarding the stand-and-stretch limitation are also without merit. Plaintiff expressly stated (in his written work report and his hearing testimony) that he regularly stood and walked during the work day at his construction management job. The ALJ had more than sufficient evidence to make the common sense finding that Plaintiff could satisfy the one-to-three-minute stretching component of the RFC in his old job as actually performed. Again, whether the DOT addressed this issue in the national job listing is irrelevant to the direct proof regarding how Plaintiff admitted that he really performed this job in the past.
Plaintiff failed to carry his burden of demonstrating that he was unable to do his construction management job as he previously performed it. Bustamante, 262 F.3d at 953-54. Plaintiff's testimony and work history report, as well as the vocational expert's opinion based on that evidence, reasonably support the ALJ's conclusion at that Plaintiff could return to his past work even with the restrictive RFC assessed here. Parra, 481 F.3d at 746. The ALJ's decision regarding Plaintiff's previous work as actually performed was not erroneous.
IV. CONCLUSION
The ALJ's denial of Plaintiff's application for disability benefits was supported by substantial evidence in the record and contained no legal error. Therefore, the Court AFFIRMS the decision.
IT IS SO ORDERED.
JUDGMENT
It is the judgment of this Court that the decision of the Administrative Law Judge is AFFIRMED. Judgment is hereby entered in favor of Defendant.