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Payne v. Commissioner of Social Security

United States District Court, D. Oregon

November 13, 2017

Commissioner of Social Security, Defendant



         Plaintiff brings this proceeding to obtain judicial review of the Commissioner's final decision denying plaintiff's applications for a period of disability, disability insurance benefits and supplemental security income benefits.

         The ALJ found that plaintiff had the following severe impairments: degenerative disc disease, carpal tunnel syndrome, osteoarthritis, and a history of recurring gastritis and urinary tract infections. TR. 14.

         At Step Four of the Disability Analysis, the ALJ found that plaintiff could perform her past relevant work as a sales person as it was generally performed in the national economy. As a predicate to the Step Four finding, the ALJ determined plaintiff had the Residual Functional Capacity (RFC) to perform a reduced range of light work, including the restriction that, due to occasional symptoms of urinary incontinence, plaintiff required "close, ready access to a restroom at all times." TR. 15.

         Plaintiff contends that the ALJ erred in his Step Four analysis, and in assessing the medical opinions and plaintiff's testimony.

         I. The ALJ7 s Step Four Finding Is Not Contrary to Law And Is Supported by Substantial Evidence

         A plaintiff has the burden of showing they can no longer perform their past relevant work - if they are able to perform their past relevant work, they are not disabled. Barnharrt v. Thomas, 540 U.S. 20, 25 (2003).

         The ALJ made a reasonable translation of the medical evidence regarding plaintiff s symptoms from urinary incontinence and put it into a concrete functional limitation. See, Rounds v. Commissioner, 807 F.3d 996, 1006 (9th Cir. 2015) ("the ALJ is responsible for translating and incorporating clinical findings into a succint RFC") . The ALJ compared the RFC finding to plaintiff s past work as a sales clerk and determined plaintiff could perform that work "as generally performed, according to the Dictionary of Occupational Titles [DOT]." Tr. 19.

         In addition to the AL J's application of the DOT, the Vocational Expert also testified an individual with plaintiff s RFC could perform sales work. Tr. 53. The ALJ did not need to and did not rely on this testimony that supports the AL J's finding. VE testimony at Step Four is "useful, but not required." Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993). The ALJ's own comparison of the plaintiff's ability with the description of the sales clerk job in the DOT is enough. See, Pinto v. Commissionerf 249 F.3d 840, 845 (9th Cir. 2001) ("the best source for how a job is generally performed is usually the DOT").

         The VE also provided subsequent, additional testimony in response to questions from plaintiffs attorney. Plaintiff attempts to use this additional, unnecessary testimony to argue that the ALJ's Step Four finding was in conflict with the VE's additional testimony regarding plaintiffs bladder symptoms. However, defendant persuasively argues that plaintiffs argument is based on functional limitations that were not present in the appropriate RFC that the ALJ found. Plaintiff contends that the ALJ's "failure to acknowledge ... or provide an adequate explanation to reconcile this testimony and the RFC precludes judicial review as to whether the ALJ's Step Four denial is based upon substantial evidence." P. 8 of Plaintiffs Memo. Plaintiff cites no authority suggesting an ALJ must discuss vocational expert testimony regarding restrictions not included in the RFC finding and no such authority exists.

         Plaintiff also states that "the description of the plaintiff's past relevant work as generally performed in the DOT is facially inconsistent with the RFC." P. 7 of Plaintiff's Memo. However, plaintiff does not actually explain how the RFC finding was facially inconsistent with the DOT's description of the sales person work and the Commissioner asserts no such conflict exists. Plaintiff did not file an optional Reply brief. Plaintiff has not shown how the ALJ erred in his comparison of plaintiff s ability with the requirements of the sales person job.

         The ALJ's findings were not contrary to law and substantial evidence supported the ALJ's finding that plaintiff could perform her past relevant work.

         II. The ALJ Did Not Err in the Evaluation of Opinion Evidence

         Plaintiff argues that "[d]espite purporting to give dispositive weight to the physical capacity evaluation opinion, the ALJ's RFC does not incorporate the 15 pound lifting restriction and does not explain why." P. 12 of Plaintiff Memo. Plaintiff is incorrect. The ALJ did not give dispositive weight to this assessment, but instead gave it "partial weight, " " crediting it only to the extent that it supported a limitation to light work." Tr. 18. The functional limitation in the assessment, including the limitation to 15 pounds lifting, is only slightly less than the 20 pound lifting requirement for light level work included in the RFC finding. Although partial weight was afforded this assessment because it was close to the ALJ's RFC finding, the specific restrictions contained in the physical capacity assessment were rejected ...

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