United States District Court, D. Oregon, Portland Division
Linda S. Ziskin Las Vegas, NV
Martin R. Cohen Douglas Way Lake Oswego, OR Attorneys for Plaintiff
S. Amanda Marshall United States Attorney Portland, OR
David J. Burdett Social Security Administration Fifth Avenue, Suite Seattle, WA, Attorneys for Defendant
FINDINGS AND RECOMMENDATION
DENNIS J. HUBEL, Magistrate Judge.
Plaintiff Daniel Ratliff ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits ("DIB") under Titles II the Social Security Act. The only disputed issue on appeal is whether the Administrative Law Judge ("ALJ") erred in concluding, at step five of the five-step sequential evaluation process, that Plaintiff could perform work which exists in significant numbers in the national economy based upon the vocational expert's ("VE") testimony regarding the job of office helper. This Court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g). For the reasons that follow, the Commissioner's decision should be affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff applied for DIB on November 30, 2009. (Tr. 18.) Plaintiff's application alleged a disability onset date of July 17, 2009. (Tr. 18.) The application was denied initially on March 2, 2010, and upon reconsideration on May 20, 2010. (Tr. 18.) Plaintiff appeared and testified at a hearing held on May 24, 2011, before ALJ Eleanor Laws. (Tr. 18.) At the time, Plaintiff was a forty-six year old high school graduate who was studying business at Portland Community College and served as a tutor at his church. (Tr. 40-41, 55-56, 75.) His work history included time as an aircraft mechanic, painter's assistant, heating, ventilation, and air conditioning ("HVAC") technician, and electrician helper. (Tr. 69-74.)
At the hearing, the ALJ elicited testimony from the VE. The ALJ asked the VE to consider a person of Plaintiff's age, education and vocational background, who is able to: (1) lift and/or carry twenty pounds occasionally and ten pounds frequently (extertional limitation); (2) push and/or pull twenty pounds occasionally and ten pounds frequently (extertional limitation); (3) climb ladders, ropes and scaffolds occasionally (postural limitation); and (4) climb ramps and stairs frequently (postural limitation). (Tr. 76.) After ruling out Plaintiff's past relevant work, the VE testified that an individual with these limitations could, at minimum, perform the light duty, unskilled jobs of repack room worker, light janitorial worker or shelving clerk. (Tr. 76-79.) The VE also confirmed that these jobs were appropriate for a hypothetical individual limited to simple, routine tasks. (Tr. 78-79.) The ALJ then altered the hypothetical by asking the VE to assume that the hypothetical individual described by the ALJ could only: (1) perform simple, routine tasks; (2) balance, stoop, kneel, crouch, crawl, or climb ladders, ropes, scaffolds, ramps and stairs occasionally (postural limitations); and (3) sit or stand two hours in an eight-hour workday (extertional limitations). (Tr. 80.) The VE testified that an individual with these limitations could perform two unskilled, sedentary jobs that exist in significant numbers in the regional and national economy: an office helper (8, 000 positions in Oregon and 320, 000 positions nationally) and loss prevention monitor. (Tr. 80.) The VE also confirmed that these jobs were appropriate for a hypothetical individual limited to frequent handling (manipulative limitation), but they would not be appropriate for an individual limited to occasional handling. (Tr. 81.)
In a final hypothetical, the ALJ essentially asked the VE to disregard any "extertional or any other limitations" and assume that the hypothetical individual would experience deficits in concentration that would cause the person to "be off task, resulting in production falling below [eighty] percent of the average worker, on average." (Tr. 81.) The VE testified as follows: "That would preclude sustained gainful work. The [hypothetical] person would not be able to meet the demands of competitive employment." (Tr. 81.)
After the ALJ's questioning, Plaintiff's counsel altered the second hypothetical already posed to indicate that the hypothetical individual was limited to only occasional contact with coworkers, supervisors and the general public. (Tr. 81-82.) In particular, the VE testified that the job of office helper would require more than occasional contact with coworkers or supervisors. (Tr. 82) ("So when you say occasional and it's restricted to one-third of the day, even though it's casual with coworkers, it just exists. And you have to be open for any interactions with the supervisor, because it's on his terms.")
Plaintiff's counsel then posed the following question to the VE regarding her prior testimony: "[Y]ou had mentioned... [that] the office helper [job]... [is] listed as light in the [Dictionary of Occupational Titles], but recent additions showed significant numbers of sedentary work, and you listed those. What did you mean by that? I mean, the DOT hasn't been published for decades." (Tr. 82.) The VE explained that her statement was based on more up-to-date information from employment statistics, the Occupational Outlook Handbook, the U.S. Census Bureau, and the Bureau of Labor and Industries. (Tr. 83.) These sources, according to the VE, reflect the fact that technological advances have reduced the extertional demands of the office helper position, even though it's listed as light duty under the DOT. (Tr. 83.) In other words, the VE was explaining her deviation from the DOT--namely, why she limited her response to the second hypothetical to sedentary positions (8, 000 positions in Oregon), as opposed to light duty position (22, 000 to 25, 000 positions). (Tr. 84.)
On June 8, 2011, the ALJ issued a decision denying Plaintiff's claim for benefits. (Tr. 28.) Plaintiff then requested review of the ALJ's decision, which was subsequently denied by the Appeals Council on November 6, 2012. (Tr. 1-3.) As a result, the ALJ's decision became the final decision of the Commissioner that ...