Opinion
Case No. 04cv2450-J (RBB).
February 28, 2006
This matter comes before the Court on Plaintiff Hollis Skinner's ("Plaintiff") Motion for Summary Judgment and Defendant Jo Anne B. Barnhart's ("Defendant") Cross-Motion for Summary Judgment. [Doc. No. 10, 17.] On December 9, 2004, Plaintiff filed this action, challenging the Social Security Administration's denial of his claim for Supplemental Security Income ("SSI") disability benefits. [Doc. No. 1.] On October 6, 2005, Magistrate Judge Ruben B. Brooks issued a Report and Recommendation ("RR") recommending the Court grant in part, and remand, Plaintiff's Motion for Summary Judgment, and deny Defendant's Motion for Summary Judgment. ( See RR at 31.) The parties were permitted to file objections to the RR no later than October 28, 2005. ( See id. at 31-32.) To date, neither party has filed objections or requested any additional time in which to do so. The Court incorporates by reference the factual and procedural background set forth in the RR. For the reasons set forth below, this Court ADOPTS IN PART and REJECTS IN PART the RR, GRANTS Defendant's Motion for Summary Judgment, and DENIES Plaintiff's Motion for Summary Judgment.
Background
At the time Plaintiff filed the Complaint, he was sixty-three years old. ( See Admin. R. at 70.) He served in the army for three years, and has worked in the past as an industrial specialist, corrections officer, corrections case manager, golf ball inspector, and assembly line worker. ( See RR at 2.) Plaintiff has not engaged in profitable employment since June 26, 2001; however, at the time of the administrative hearing, he was working part-time taking surveys for a marketing company. ( See id.)
On April 16, 2002, Plaintiff filed an application for disability insurance benefits. ( See id.) His application was based on a back disorder, patellofemoral narrowing in both knees, bilateral upper leg disorder, tinnitus, and hearing loss. ( See id.) On May 30, 2002, the ALJ denied his claim. ( See id.) On November 5, 2002, Petitioner filed a request for an administrative hearing after his request for reconsideration of the initial application was denied. ( See id.)
On February 12, 2003, the Administrative Law Judge ("ALJ") Albert Tom conducted a hearing. ( See RR at 3.) Plaintiff testified at the hearing that he was unable to work because of his knee problems. ( See id. at 10.) He stated he had difficulty walking up and down stairs, standing for more than fifteen to twenty minutes, and sitting for more than thirty minutes at a time. ( See id. at 8, 10.) He also claimed he spent a considerable amount of time lying down because the pain in his knees was so severe, and the pain affected his ability to focus and concentrate. ( See id. at 10.) Plaintiff testified he also suffered from back and prostate ailments, which affected his ability to work because the conditions caused him pain and a need to urinate once every hour and a half. ( See id. at 11.)
At the hearing, evidence and testimony from a number of doctors was presented. ( See id. at 3-8.) The following is a timeline drawn from the evidence.
On a note dated March 17, 2000, Dr. Guerin, a doctor of internal medicine, referred Plaintiff to an orthopedic specialist. ( See id. at 11.) However, Plaintiff did no present any records indicating he had actually visited an orthopedic specialist. ( See id.)
On May 10, 2002, Plaintiff visited Dr. Dorsey for an orthopedic consultation. ( See id.) Dr. Dorsey stated that Plaintiff complained of lower back pain extending to his feet, and knee pain with swelling, clicking and popping. ( See id.) Plaintiff had told Dr. Dorsey that the pain was worse when bending or lifting. ( See id.) Plaintiff did not report the use of a cane or any other assistive devices. ( See id.) Dr. Dorsey reported that he had diagnosed Plaintiff as suffering from moderate degenerative disc disease in both knees and mild degenerative disc disease of the lumbar spine. ( See id. at 4.) However, Dr. Dorsey also found that Plaintiff was still able to "lift, carry, push or pull twenty pounds occasionally and ten pounds frequently, stand and walk for four hours out of an eight-hour workday, and occasionally stoop and crouch." ( Id.)
On May 23, 2002, Dr. Tiedeman, a medical consultant, completed a Physical Residual Functional Capacity Assessment based on Dr. Dorsey's diagnosis. ( See RR at 4.) He similarly concluded that "Plaintiff could lift and/or carry twenty pounds occasionally and ten pounds frequently, stand and walk for four hours, and sit for six hours in an eight-hour workday." ( Id. at 4-5.) He also reported that Plaintiff had only "occasional postural limitations for climbing, balancing, stooping, kneeling, crouching, and crawling." ( Id. at 5.) Dr. Tiedeman further stated that Plaintiff's "allegations regarding the nature and severity of his symptoms were partially credible and supported by medical evidence, but [his] contentions regarding the severity of his related functional restrictions were not supported by the record." ( Id.) He also ruled out the possibility that Plaintiff suffered from a hearing impairment. ( See id.) On October 24, 2002, Dr. Hartman affirmed Dr. Tiedeman's assessment. ( See id.)
On May 24, 2002, Dr. Lopez gave Plaintiff a comprehensive exam. ( See id. at 5.) At that time, Plaintiff stated he was suffering from knee pain and swelling, but denied having any other problems, such as ear pain, decreased hearing, tinnitus and back pain. ( See id.) Plaintiff was prescribed ibuprofen (for osteoarthritis), Zantac (for gastroesophageal reflux disease), Viagra (for sexual dysfunction) and Prazosin (for hypertension). ( See id.)
On July 8, 2002, Plaintiff met with physical therapist Florence Freeland for a consultation. ( See RR at 6; Admin. Rec. at 123.) Plaintiff reported "a pain level in his knees of five to seven out of ten . . . [and] aching and stiffness in his left knee upon waking in the morning[, which] sometimes kept him awake at night." ( See id. at 6.) He also stated that "sitting or standing for longer than one hour bothered him, and if he stood for too long, his knees would buckle." ( Id.) Ms. Freeland found that Plaintiff suffered from osteoarthritis, and believed physical therapy would be beneficial. ( See id.) On July 15, 2002, Plaintiff went to physical therapy, but did not attend any more sessions after that date. ( See id.)
On September 10, 2002, during Plaintiff's second visit to Dr. Lopez's office, Dr. Lopez informed Plaintiff that knee x-rays taken on May 28, 2002, indicated Plaintiff had mild osteoarthritis of the medial and patellofemoral joint spaces. ( See id. at 6-7.) On October 25, 2002, Plaintiff visited Dr. Lopez for a third time, and reported knee pain from behind with knee effusion and a pain level of eight on a scale of one to ten. ( See id. at 7.)
On November 20, 2002, during a follow-up appointment, Dr. Greenberg determined Plaintiff's knee pain had worsened, but found no evidence of swelling, effusion, locking, or instability. ( See id. at 7.) He also noted it was difficult for Plaintiff to stand up from a sitting position. ( See id.) Dr. Greenberg referred Plaintiff for steroid injections. ( See id.) However, Plaintiff did not take the prescribed injections. ( See id. at 20-21.) On February 11, 2003, Plaintiff visited Dr. Mongeon, who diagnosed him with osteoarthritis in his knees, type II diabetes, and hypertension. ( See id.)
The ALJ heard testimony from both Plaintiff and vocational expert John Kilcher, M.A., concerning the jobs Plaintiff held in the past, his ability to continue working his case manager job as he actually performed it, and his ability to work the job as it is performed in the national economy. ( See id. at 9-13.) Plaintiff testified that he worked as a corrections case manager from April 1997 to June 1998, where he was required to handle inmate paperwork at his desk fifty percent of the time and walk around the prison facility the remaining time. ( See id. at 9-10.) Mr. Kilcher testified that the DOT classifies the case manager position as skilled and sedentary, which requires a person be able to sit up for approximately six hours, and occasionally walk and stand for no more than two hours out of an eight-hour day. ( See id. at 12.); see generally 20 C.F.R. §§ 404.1567(a), 416.967(a) (2005) ("The regulations define sedentary work as requiring primarily sitting, some walking and standing, and minimal lifting."); see also Diaz v. Chater, 55 F.3d 300, 306 (7th Cir. 1995). However, Mr.Kilcher also stated that according to Plaintiff's description of how he actually performed his case manager job, Plaintiff performed the position at a light-exertion level, which requires more physical activity than skilled and sedentary work. ( See id. at 12.); see generally 20 C.F.R. §§ 404.1567(b), 416.967(b) (2005) ("Light work involves lifting no more than twenty pounds at a time with frequent lifting or carrying of objects weighing up to ten pounds" and "requiring much walking or standing. . . ."); see also Diaz, 55 F.3d at 306.
The ALJ posed three hypotheticals to the vocational expert to determine whether Plaintiff could perform certain jobs in his condition. ( See RR at 12-13.) The first hypothetical reflected Plaintiff's own description of his ailments, specifically asking the expert whether a sixty-one-year-old man could perform the functions of a case manager if he had knee problems, back problems, and prostate disease; was able to lift only twenty pounds; and was able to do a combination of sitting, standing and walking (as opposed to lying down) for two hours out of an eight-hour workday. ( See id. at 12.) The expert's opinion was that a person under these circumstances could not perform any work. ( See id.)
The second hypothetical was based on Dr. Dorsey's medical testimony, specifically asking the expert whether a person could perform the functions of a case manager if he/she could lift ten pounds frequently and twenty pounds occasionally; could stand and walk four hours out of an eight-hour workday; and had no restrictions on sitting. ( See RR at 12.) Under those circumstances, the expert's opinion was that work as a case manager could be performed. ( See id.)
The third hypothetical was based on Dr. Tiedeman's medical testimony, specifically asking the expert whether a person could perform the functions of a case manager if he/she could lift and carry ten pounds frequently and twenty pounds occasionally; could stand and walk at least two hours in an eight-hour workday, and could sit for six hours out of an eight-hour workday. ( See id. at 12-13.) The expert's opinion was that a person in that condition could perform the job of a case manager. ( See id. at 13.)
After considering the vocational expert's testimony, the ALJ concluded that Plaintiff did not qualify for disability benefits because he was able to work as a case manager as performed in the national economy. ( See id. at 14.) The ALJ determined that the medical evidence established Plaintiff had severe osteoarthritis of the knees and mild lumbar degenerative disc disease, but concluded that Plaintiff retained the residual functional capacity to perform work-related activities. ( See id.) Plaintiff was only restricted from work involving lifting and carrying more than ten pounds frequently and twenty pounds occasionally, and standing or walking for more than four hours in an eight-hour workday. ( See id.) The ALJ found that work as a case manager as it was performed in the national economy did not require the performance of the precluded work-related activities. ( See id.) The ALJ relied on the vocational expert's answers to the second and third hypotheticals in reaching this conclusion. ( See Admin. R., ALJ's Op., at 26.) Based on the above reasons, in addition to Plaintiff's medical, work and educational history, the ALJ concluded that Plaintiff was not entitled to disability benefits. ( See id. at 14.)
Legal Standard
The district court's duties in connection with a magistrate judge's report and recommendation are set forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1). See Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1) (2005). The district court must "make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1) (2005); see also Johnson v. Nelson, 142 F. Supp. 2d 1215, 1217 (S.D. Cal. 2001). When no objections are filed, the district court may assume the correctness of the magistrate judge's findings of fact and decide the motion based on the applicable law. See Johnson, 142 F. Supp. 2d at 1217. "Under such circumstances, the Ninth Circuit has held that `a failure to file objections only relieves the trial court of its burden to give de novo review to factual findings; conclusions of law must still be reviewed de novo.'" Id. (quoting Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989)).
Discussion
I. The Hypotheticals Relied Upon by the ALJ Were Supported by Substantial Evidence Because the Hypotheticals Included All of Claimant's Physical Limitations
In his Motion for Summary Judgment, Plaintiff argues the ALJ erred by improperly relying on the vocational expert's answer to a hypothetical that incompletely described Plaintiff's condition. ( See Pl.'s P. A., Mot. for Summ. J., at 11.) Plaintiff complains the ALJ failed to consider his constant knee pain, a condition he claims affects his ability to concentrate and focus. ( See id. at 13.) The RR concludes that the ALJ was justified in discrediting Plaintiff's knee pain testimony because the hypotheticals relied upon by the ALJ were complete in that they included all of Plaintiff's physical limitations supported by substantial evidence. ( See RR at 25.) For the reasons set forth below, this Court ADOPTS the RR's denial of Plaintiff's contention that the ALJ improperly relied on the responses of the vocational expert to incomplete hypotheticals.
A. The ALJ was Justified in Rejecting Plaintiff's Subjective Pain Testimony as a Limitation to be Included in the Hypotheticals
A claimant can object to an ALJ's decision discrediting a claimant's testimony about subjective pain limitations if the ALJ did not have specific and legitimate reasons for disbelieving the claimant's testimony. See Embrey v. Bowen, 849 F.2d 418, 423 (9th Cir. 1988). First, the claimant must produce objective medical evidence to establish the impairment from which the claimant suffers is reasonably expected to produce pain. See Batson v. Commissioner of Social Security Admin., 359 F.3d 1190, 1196 (9th Cir. 2004). Even if claimant satisfies this step, the ALJ may still reject the claimant's subjective testimony with "specific findings stating clear and convincing reasons for doing so." Id. (quoting Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996)).
In the instant case, although Plaintiff satisfied step one by presenting objective medical evidence of joint disease and osteoarthritis in both knees, conditions which are reasonably expected to produce symptoms of soreness, aching and pain, the ALJ gave a number of specific and legitimate reasons for refusing to include Plaintiff's subjective pain as a limitation to two of the hypotheticals posed to the vocational expert. ( See RR at 12-13, 20.) The ALJ found that Plaintiff's pain was not severe because: (1) Plaintiff's ailments required only conservative and minimal treatment, (2) Plaintiff disregarded his doctor's recommendations, and (3) Plaintiff made inconsistent statements about his condition. ( See id. at 21.)
1. Plaintiff's Condition Required only Conservative and Minimal Treatment
The ALJ was justified in not including Plaintiff's subjective pain testimony as a limitation in the hypotheticals relied upon by the ALJ because Plaintiff's condition was not severe enough to require more than conservative and minimal treatment. The prescription of only minimal or conservative treatment tends to suggest a lower level of pain. See Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) ("[The ALJ] cited the doctor's records . . . to show that medical evidence does not support the degree of functional limitation claimed. For example, the ALJ noted that Dr. Hunt prescribed only `conservative treatment' . . . suggesting a lower level of both pain and functional limitation."). When Plaintiff first visited Dr. Dorsey on May 10, 2002, he did not report that he was taking medication even though he had stated an onset date of June 26, 2001. ( See RR at 21.) Therefore, Plaintiff was able to live with the alleged pain for almost one year without taking any medication.
The ALJ also found that Plaintiff's ailments were not severe because when Plaintiff was prescribed pain medication, he was prescribed the non-narcotic variety. ( See id. at 22); Ruiz v. Apfel, 24 F. Supp. 2d 1045, 1049 (C.D. Cal. 1998). If a doctor does not prescribe narcotic pain relievers, it is presumed the symptoms do not require them, which further suggests that severe pain allegations are exaggerated. See Ruiz, 24 F. Supp. 2d at 1049 ("Plaintiff's physicians presumably did not prescribe more potent narcotic painkillers because her symptoms did not require them, further suggesting that her excess pain allegations were exaggerated."). Plaintiff's symptoms did not require narcotic pain medication because on May 24, 2002, Dr. Lopez prescribed Plaintiff ibuprofen, a non-narcotic pain reliever, for his osteoarthritis. ( See RR at 5.) Therefore, medical evidence supports the conclusion that Plaintiff's symptoms were not so severe as to require strong pain medication, suggesting Plaintiff's pain allegations were exaggerated.
The final factor supporting the ALJ's conclusion that Plaintiff's condition was not severe is that none of Plaintiff's doctors recommended surgery. ( See id. at 22.) When a doctor does not recommend surgery, it suggests that the patient's condition is "not severe enough to warrant such invasive treatment." Ruiz, 24 F. Supp. 2d at 1049-50. Substantial evidence showing that Plaintiff's symptoms required only conservative and minimal treatment casts doubt on Plaintiff's allegations of severe pain.
2. Plaintiff Disregarded Doctors' Recommendations
A second reason supporting the ALJ's decision to discredit Plaintiff's subjective pain testimony was Plaintiff's apparent disregard of his doctors' recommendations. "[A]n unexplained, or inadequately explained, failure to . . . follow a prescribed course of treatment" can be used to cast doubt on the credibility of a plaintiff's pain allegations. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). Although Dr. Greenberg gave Plaintiff an orthopedic referral for steroid injections, nothing in the administrative record indicates Plaintiff sought this treatment. ( See RR at 21-22.) Plaintiff also did not give any explanation as to why he did not seek the treatment. ( See id.) In addition, Plaintiff did not explain why he refused the assistance of a cane, despite his physical therapist's suggestion that he use a cane to help with his limp. ( See id. at 22.) Plaintiff's refusal of his doctors' recommendations on two occasions casts substantial doubt on his subjective pain testimony and his claim that he was unable to focus and concentrate due to the pain he suffered.
3. Plaintiff Made Inconsistent Statements About His Condition
The final reason supporting the ALJ's conclusion was Plaintiff's inconsistent statements regarding the severity of his condition and the pain he suffered. "In assessing the claimant's credibility, the ALJ may . . . consider the claimant's reputation for truthfulness and any inconsistent statements in [claimant's] testimony." Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2003). On April 29, 2002, Plaintiff, in his answer to an Exertional Daily Activities Questionnaire, reported he must rest two to three hours during the day. ( See RR at 24-25.) However, on October 3, 2002, he did not report needing any rest periods during the day when he filled out the same questionnaire. ( See id. at 25.) Plaintiff's statement regarding the amount of rest he needed in the first questionnaire is clearly inconsistent with his statement that he did not need to rest at all in the second questionnaire.
The ALJ also found that Plaintiff's testimony at the hearing that he needed to lie down for six hours each day was inconsistent with his doctors' findings about the amount of time he needed to rest. "The ALJ stated that . . . none of the doctors indicated that [Plaintiff] needed to rest that amount of time." ( Id.) For instance, Dr. Dorsey rebutted Plaintiff's claim that he needed to lie down for six hours each day by finding that Plaintiff could walk and stand four hours out of an eight-hour day. ( See id. at 4.) Therefore, Plaintiff's inconsistencies cast doubt on his credibility and provide clear and convincing reasons for rejecting his claim of excess pain.
Accordingly, the Court FINDS the ALJ gave clear and convincing reasons for rejecting Plaintiff's claim of excess pain as a limitation in the hypotheticals posed to the vocational expert.
B. The ALJ Based His Conclusion Upon Hypothetical that Included All of Plaintiff's Physical Limitations
In order for the vocational expert's testimony to have evidentiary value and serve as support for the ALJ's decision, the hypotheticals posed to the expert must reflect all of the claimant's limitations. See Embrey, 849 F.2d at 423. In the instant case, the Court FINDS the ALJ was justified in relying on the vocational expert's responses to the second and third hypotheticals because both hypotheticals reflected all of the limitations on record and were supported by medical testimony.
The second hypothetical reflected Dr. Dorsey's diagnosis that Plaintiff was capable of lifting, carrying, pushing or pulling twenty pounds occasionally and ten pounds frequently; standing and walking for four hours out of an eight-hour workday; and occasionally stooping and crouching. ( See RR at 4, 12-13.) Thus, it was proper for the ALJ to rely on the vocational expert's conclusion that a person with the limitations set forth in the second hypothetical was capable of performing the job of case manager. ( See id. at 12.)
The third hypothetical reflected Dr. Tiedeman's diagnosis that Plaintiff was capable of lifting and/or carrying twenty pounds occasionally and ten pounds frequently; standing and walking for four hours; and sitting for six hours in an eight-hour workday. ( See id. at 4-5, 12-13.) The ALJ also correctly relied on the expert's response to the third hypothetical that the person could perform the job of case manager. ( See id. at 12-13.)
Moreover, the ALJ was justified in placing more evidentiary value on the vocational expert's responses to the second and third hypotheticals, than on the first hypothetical, because the limitations specified in the first hypothetical were not supported by medical testimony. The first hypothetical reflected only Plaintiff's subjective description of his condition, including that he can only stand for fifteen to twenty minutes at a time, sit for about thirty minutes, and do a combination of sitting, standing and walking for two hours out of an eight-hour day. ( See Admin. R., Vocational Expert's Test., at 177-78.) Plaintiff's statements were not supported by the medical evidence on the record. ( See RR at 12.)
Accordingly, the Court ADOPTS the RR's conclusion affirming the ALJ's reliance on the expert's responses to the second and third hypotheticals because these two hypotheticals were a complete reflection of Plaintiff's physical limitations as supported by the evidence on the record.
II. The ALJ Properly Concluded that Plaintiff is Capable of Performing His Past Relevant Work as it is Performed in the National Economy
The ALJ found that Plaintiff was not qualified for disability support because he was capable of performing his past relevant work as a corrections case manager as it is generally performed in the national economy. ( See Admin. R., ALJ's Op., at 25.) Plaintiff claims the ALJ erred because the ALJ did not give adequate weight to Plaintiff's testimony regarding how he actually performed the job of a case manager. ( See Pl.'s P. A., Mot. for Summ. J., at 11-13.) The Magistrate Judge recommended Plaintiff's case be remanded because the ALJ improperly found Plaintiff to be capable of performing his past relevant work as a corrections case manager. ( See RR at 25, 31.) Specifically, the RR concluded that: (1) the ALJ's finding that Plaintiff is capable of performing the case manager position as it is performed in the national economy is not supported by substantial evidence; and (2) the vocational expert's testimony concerning this matter was confusing and contradictory. For the reasons set forth below, the Court REJECTS the RR's recommendation to remand, and FINDS that the ALJ properly found Plaintiff did not qualify for disability support because he is capable of performing the job of case manager as it is performed in the national economy.
The ALJ may find the claimant capable of performing his past work if: (1) he can perform "[t]he actual functional demands and job duties of a particular past relevant job; or" (2) he can perform "[t]he functional demands and job duties of the occupation as generally required by employers throughout the national economy." Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001) (emphasis added) (quoting Policy Ruling, S.S.R. 82-61 (Cum. Ed. 1982)). The ALJ's decision will be upheld if it is supported by substantial evidence in the record. See Smolen v. Charter, 80 F.3d 1273, 1279 (9th Cir. 1996). Substantial evidence is defined as "more than scintilla but less than a preponderance." Id. Furthermore, substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
A. The ALJ's finding that Plaintiff Could Perform his Past Relevant Work as it was Performed in the National Economy was Based on Substantial Evidence
The Court REJECTS the RR's recommendation to remand Plaintiff's case because the ALJ relied on substantial evidence to find that Plaintiff could perform his past position as a case manager as it is performed in the national economy. That is, a reasonable person could reach the same conclusion as the ALJ in light of the medical evidence and vocational expert testimony presented at the hearing. See Andrews, 53 F.3d at 1039. The vocational expert testified that from his visits to correctional facilities in California and Ohio, he found that case managers usually sit and interview inmates in their offices. ( See Admin. R., Vocational Expert's Test., at 181.) He further stated that the case manager is only occasionally required to walk around the building. ( See id.) The vocational expert added that the DOT classified the case manager position as skilled and sedentary. ( See id. at 176.) "Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools." 20 C.F.R. § 416.967(a) (2005). In addition, "[a]lthough a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties." Id. Dr. Dorsey concluded that Plaintiff was capable of carrying out more than the tasks required of sedentary work because Plaintiff could "lift, carry, push, or pull twenty pounds occasionally and ten pounds frequently, stand and walk for four hours out of an eight-hour workday and occasionally stoop and crouch." (RR at 4.) Dr. Tiedeman reached a similar assessment of Plaintiff's impairments in concluding that "Plaintiff could lift and/or carry twenty pounds occasionally and ten pounds frequently, stand and walk for four hours, and sit for six hours in an eight-hour workday." ( Id. at 4-5.) Therefore, Plaintiff's condition met and exceeded the requirements for sedentary work because he can (1) occasionally lift and carry twenty pounds, and (2) walk or stand for four hours out of an eight-hour workday. Taken together, these findings satisfy the substantial evidence test because they provide much more than a scintilla of evidence that Plaintiff was capable of performing sedentary work, which is what the case manager position requires both according to the DOT, and the vocational expert's studies of several prison facilities in California and Ohio.
B. The RR Incorrectly Concluded that the Vocational Expert's Testimony was Contradictory and Confusing
The RR found the ALJ incorrectly concluded that Plaintiff could perform his past work as a case manager as performed in the national economy because the vocational expert's testimony on this point was contradictory. ( See RR at 28-30.) The RR also argues that it is "unclear whether the vocational expert intended to testify that Plaintiff could perform the case manager position as [Plaintiff] described it or only perform the position as it is described in the DOT." ( Id. at 26.) Thus, the RR recommends reversal of the ALJ's decision and remand of Plaintiff's case. However, the ALJ's decision must be upheld when supported by substantial evidence that is "susceptible to more than one rational interpretation." Andrews, 53 F.3d at 1039-40. For the reasons set forth below, the Court REJECTS the RR's recommendation to remand.
The ALJ's decision is upheld because when considered in context, the vocational expert's testimony can be interpreted to establish that Plaintiff is capable of performing the case manager position as it is performed in the national economy. The RR found it confusing that when Plaintiff's attorney asked the vocational expert whether "except for the [case manager] job as [Plaintiff] described, . . . would [the case manager] job [as performed in the national economy] be available under that [second] hypothetical[,]" the vocational expert responded, "[n]o, it would not." (Admin. R., Vocational Expert's Test., at 179.) The RR seems to interpret this testimony to mean that a person with the physical limitations set forth in the second hypothetical would not be able to perform the case manager position as it is described in the DOT. ( See RR at 29-30.) However, the more reasonable interpretation is that the vocational expert was stating a person with the physical limitations set forth in the second hypothetical would have a higher ability to perform physical activity than required by the DOT for the case manager position. A person with the limitations in the second hypothetical could lift ten pounds frequently and twenty pounds occasionally, whereas the DOT only requires a person lift a minimal amount of weight. ( See id. at 12); 20 C.F.R. §§ 404.1567(a), 416.967(a) (2005). Furthermore, a person with the limitations in the second hypothetical could stand and walk four hours out of an eight-hour workday, whereas the DOT only requires a person to occasionally stand and walk for two hours out of an eight-hour workday. ( See RR at 12); Diaz, 55 F.3d at 306. Finally, a person with the limitations in the second hypothetical has no restrictions on sitting, whereas the DOT restricts a person to sitting for six hours out of an eight-hour workday. ( See RR at 12); Diaz, 55 F.3d at 306. Therefore, this Court's interpretation of the vocational expert's testimony is more reasonable than the RR's because a person with the limitations set forth in the second hypothetical is capable of engaging in a higher level of physical activity than that required by the DOT.
The reasonableness of this Court's interpretation is even more evident when the above response from the vocational expert is taken in context with the rest of the vocational expert's testimony. Before asking the above question, the Plaintiff's attorney had just asked the vocational expert the following question in reference to the ALJ's second hypothetical: "[a]m I assuming [the] case manager [position] would be performed as . . . described under the DOT versus as performed [by Plaintiff]?" The vocational expert replied, "[t]hat's correct." (Admin. R., Vocational Expert's Test., at 179.) Thus, the vocational expert was stating that a person subject to the physical limitations of the second hypothetical would be capable of performing the case manager position as performed under the DOT and in the national economy. ( See id. at 178-79.) The vocational expert never retracted that conclusion. ( See id. at 180-85.) The RR's interpretation that the vocational expert was stating a person with the physical limitations set forth in the second hypothetical would not be able to perform the position as it is described in the DOT is inconsistent with the vocational expert's conclusion.
The RR also found confusing the vocational expert's testimony that the DOT's description of case manager "pretty well meets" the Plaintiff's description of the job. (Admin. R., Vocational Expert's Test., at 180.) The RR mistakes the vocational expert's statement to mean the Plaintiff's description of the case manager position and the DOT's description are approximately the same. However, the phrase "pretty well meets" means that Plaintiff's experience as a case manager involved the same duties as is required in the DOT, but Plaintiff did not perform those duties at the same exertional level described in the DOT. ( See id.) The vocational expert explained that Plaintiff performed a portion of the case manager position at a light-exertional level, whereas in the national economy the entire position is performed at a sedentary-exertional level. ( See id. at 179-81.) When the testimony is read clearly from beginning to end, the evidence supports the reasonable interpretation reached by the ALJ. See Shalala, 53 F.3d at 1039. Therefore, the testimony supports the conclusion that Plaintiff could perform his past work as case manager as it is performed in the national economy.
Furthermore, the vocational expert's testimony was not contradictory and confusing because, as the RR acknowledges, Plaintiff admitted the vocational expert's conclusion that "Plaintiff could perform the case manager position as it is described in the DOT and performed in the national economy." (RR at 25-26; see also Pl.'s P. A., Mot. for Summ. J., at 12 ("[t]he case manager job as described by the DOT can be performed by Mr. Skinner. . . .")) Therefore, the RR's conclusion that the vocational expert's testimony was confusing is rejected because the Plaintiff, himself, interpreted the vocational expert's testimony to mean that Plaintiff was capable of performing the case manager position as it is performed in the national economy.
Taking all the evidence in the record into consideration, such as the medical testimony, vocational expert's testimony, and responses to the hypotheticals, the Court FINDS the ALJ's interpretation is a rational one that is supported by substantial evidence. For the reasons given above, this Court FINDS the ALJ properly found Plaintiff capable of performing past work as a case manager as it is performed in the national economy.
C. The ALJ Was Not Required to Give Weight to Plaintiff's Description of His Past Relevant Work
Plaintiff's assertion in his Motion for Summary Judgment that the ALJ gave too much weight to the vocational expert's description of the case manager position, and did not give enough weight to Plaintiff s description, is inapposite. ( See Pl.'s P. A., Mot. for Summ. J., at 12-13). The ALJ can deny benefits if a claimant can perform the job as it is actually performed in the national economy. See Pinto, 249 F.3d at 845 ("ALJ is not required to make . . . findings regarding a claimant's past relevant work both as generally performed, and as actually performed; rather, vocational expert merely has to find that a claimant either can or cannot continue his or her past relevant work as defined by applicable regulations.").
Plaintiff testified that he performed his job as a case manager by sitting half the time and walking the other half of the time. ( See Pl's P. A., Mot. for Summ. J., at 6-7.) In the vocational expert's opinion, if the ALJ adopted Plaintiff's description of the job as he performed it, the job would be classified as light-exertional, rather than the DOT's classification as sedentary. ( See Admin. R., Vocational Expert's Test., at 176.) Further, the vocational expert stated that Plaintiff would not be able to perform the job as Plaintiff characterized it. ( See id. at 182.) However, despite Plaintiff's testimony, the ALJ applied the correct standard because the ALJ's decision was based on the sound conclusion that Plaintiff was able to perform his past relevant work as it is performed in the national economy. Thus, the ALJ was not required to consider whether Plaintiff could perform his past relevant work as he actually performed it. See Pinto, 249 F.3d at 845. Accordingly, the Court REJECTS Plaintiff's argument that the ALJ erred in not giving more weight to this testimony about the job as he actually performed it.
Conclusion
For the foregoing reasons, the Court ADOPTS the RR's conclusion denying Plaintiff's contention that the ALJ improperly relied on the responses of the vocational expert to incomplete hypotheticals, REJECTS the RR's recommendation to remand Plaintiff's case, and FINDS the ALJ properly found Plaintiff did not qualify for disability support because he is capable of performing the job of case manager as it is performed in the national economy. Thus, the Court GRANTS Defendant's Cross-Motion for Summary Judgment, and DENYS Plaintiff's Motion for Summary Judgment.
IT IS SO ORDERED.