United States District Court, D. Nevada
CELIA B. TOLENTO, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
ORDER MOTION FOR REVERSAL AND/OR REMAND [ECF NO. 19],
CROSS MOTION FOR SUMMARY JUDGMENT TO AFFIRM [ECF NO.
FERENBACH, UNITED STATES MAGISTRATE JUDGE
Court inadvertently entered the Report and Recommendation
(ECF No. 22) in this case. Accordingly, IT IS HEREBY ORDERED
that the report and recommendation on the Motion for Reversal
and/or Remand (ECF No. 19) and Cross Motion for Summary
Judgment to Affirm (ECF No. 20) is stricken.
matter involves Plaintiff Celia B. Tolento's appeal from
the Commissioner's final decision denying her social
security benefits. Before the Court is Tolento's Motion
for Reversal or Remand (ECF No. 19) and the Commissioner of
Social Security's motion for summary judgment to affirm
(ECF No. 20). For the reasons stated below the Court denies
Tolento's motion to reverse or remand and grants the
Commissioner's motion for summary judgment to affirm.
Fifth Amendment prohibits the government from depriving
persons of property without due process of law. U.S. Const.
amend. V. Social security claimants have a constitutionally
protected property interest in social security benefits.
Mathews v. Eldridge, 424 U.S. 319, 332 (1976). 42
U.S.C. § 405(g) authorizes the district court to review
final decisions made by the Commissioner of Social Security.
district court will not disturb an Administrative Law
Judge's (“ALJ”) denial of benefits unless
“it is not supported by substantial evidence or it is
based on legal error.” Burch v. Barnhart, 400
F.3d 676, 679 (9th Cir. 2005). When reviewing an ALJ's
decision, “the findings of the Commissioner of Social
Security as to any fact, if supported by substantial
evidence, shall be conclusive.” 42 U.S.C.
§ 405(g). Substantial evidence means, “such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion” and is defined as
“more than a mere scintilla” of evidence.
Gutierrez v. Comm'r of Soc Sec., 740 F.3d 519, 522
(9th Cir. 2014); Burch, 400 F.3d at 679.
evidence could give rise to multiple rational
interpretations, the court must uphold the ALJ's
conclusion. Burch, 400 F.3d at 679. This means that
the Court will uphold the Commissioner's decision if it
has any support in the record. See, e.g.,
Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1988)
(stating that the court may not reweigh evidence, try the
case de novo, or overturn the Commissioner's
decision if the evidence preponderates against it).
applied the five step sequential analysis pursuant to 20
C.F.R § 404.1520. The ALJ found that while Tolento
suffered from various physical impairments, she also
maintained “the residual functional capacity to perform
light work… and occasional overhead reaching with both
arms.” (AR 17). The ALJ found that Tolento was therefore
able to work as a receptionist, and thus denied her social
security benefits. (AR 21). The ALJ based his determination
upon the Dictionary of Occupational Titles
(“DOT”) 237.367-038, claimant's medical
history, objective medical evidence, and the testimony of a
vocation expert who testified that Tolento had the residual
functioning capacity to work as a receptionist. (AR 17-21,
claims that the ALJ made a legal error when he concluded that
she had the residual function capacity to continue working as
a receptionist. Specifically, Tolento argues that the DOT
definition of “receptionist” requires frequent
reaching without defining if that reaching includes overhead
reaching. (ECF No. 19 at 7). Tolento argues that given the
vagueness of this definition, the ALJ's finding that
Tolento had the residual capacity to engage in work as a
receptionist is in conflict with his finding that she had the
residual capacity to engage in only occasional overhead
reaching. (ECF No. 19 at 7).
Analysis of Potential Conflict
Commissioner's decision will be upheld if it has any
support in the record. Bowling, 36 F.3d at 434.
While an ALJ may rely on the testimony of a vocation expert
in reaching a decision, an ALJ must first inquire if the
testimony conflicts with the DOT. Silvera v. Astrue,
No. CV 09-1935 JC, 2010 WL 3001619, at *3 (C.D Cal July 29,
2010). The failure to do so, however, may be harmless error
if no actual conflict exists. Id. For there to be a
conflict between an expert's testimony and the DOT, the
discrepancy must be “obvious or apparent.”
Gutierrez v. Colvin, 844 F.3d 804, 808 (9th Cir.
2016). For a discrepancy to be obvious or apparent, the
testimony “must be at odds with the
Dictionary's listing of job requirements that
are essential, integral, or expected.” Id.
ALJ's decision that Tolento had the residual functional
capacity to work as a receptionist did not contradict his
finding that she had the residual capacity to engage in only
occasional overhead reaching, because his decision has
sufficient support within the record. While Tolento argues
that the DOT definition is too vague to support the ALJ's
finding, the ALJ did not rely solely on the DOT definition in
reaching his decision. He also consulted a vocation expert
who testified that given Tolento's physical impairments,
she could perform the work of a receptionist. (AR 40-43).
Further, the ALJ met his affirmative responsibility to
question the vocation expert about any potential conflict
between his testimony and the DOT definition. After informing
the vocation expert of Tolento's restriction ...