Opinion
CV-20-00487-TUC-SHR (DTF)
02-04-2022
Victoria West, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
ORDER
Honorable D. Thomas Ferraro United States Magistrate Judge
Plaintiff Victoria West (“West”) brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of a final decision by the Commissioner of Social Security (“Commissioner”) that found she was not disabled. (Doc. 1.) The parties have fully briefed this issue. (Docs. 24, 27, 28.) This matter was referred to the undersigned United States Magistrate Judge for report and recommendation. (Doc. 15.) As more fully set forth below, based on the pleadings and the submitted administrative record (“AR”), the Court recommends that the district court, after its independent review, affirm the decision of the Commissioner.
I.BACKGROUND
West was born in 1956 and was 63 years old at the time of the ALJ's decision. (AR 40, 75.) She completed high school and three years of college. (AR 40.) She previously worked as a chef/cook in varying capacities. (AR 29, 53-55.)
On December 8, 2017, West protectively filed a Title II application for a period of disability and disability insurance benefits (“DIB”) alleging disability beginning May 1, 2017. (AR 21, 174-75.) On June 19, 2018, West's claims were initially denied. (AR 21, 83-95.) On November 26, 2018, West's claims were denied on reconsideration. (AR 21, 98-118, 130.) West filed a request for hearing. (AR 137.) On April 15, 2020, an administrative hearing was held before Administrative Law Judge (“ALJ”) Laura Speck Havens. (AR 21, 35.)
West alleged disability because of Parkinson's disease and its symptoms, sequelae of Lyme disease, and depression. (AR 24, 210.) In her appeal, West focuses on the ALJ's categorization of her past relevant work, thus, the content of West's medical records are not at issue in her appeal and the Court will pretermit discussion of the medical evidence. (See Doc. 24 at 3.)
At the hearing, West and Vocational Expert (“VE”) Ruth Van Fleet testified. (AR 35-36.) West testified regarding her background and symptoms. (AR 40-61, 65-66.) The VE testified that a person with the ALJ's hypothetical limitations could perform West's past relevant work as a chef. (AR 63-64.)
On April 24, 2020, the ALJ issued his unfavorable decision denying West's claims. (AR 30.) At step one, the ALJ determined that West had not engaged in substantially gainful activity since May 1, 2017. (AR 23.) At step two, the ALJ determined West had the following severe impairments: Parkinson's disease and Lyme disease. Id. He did not consider West's depression to be severe. (AR 24-25.) At step three, the ALJ found that West did not have an impairment or combinations of impairments that meets or is equal in severity to one listed in 20 C.F.R. Part 404, Subpart P, App. 1. (AR 25.)
After step three and before step four, the ALJ determined that West had the residual functional capacity (“RFC”) to “perform light work” with the following limitations:
Claimant can lift/carry 20 pounds occasionally and 10 pounds frequently. Claimant can sit for 6 hours out of an 8 hour day and stand for 6 hours out of an 8 hour day or walk for 6 hours out of an 8 hour day, i.e., be on her feet for 6 hours per day. Claimant can frequently fine finger with her left upper dominant extremity. Claimant can occasionally climb ladders/stairs and can frequently balance, stoop, kneel, crouch or crawl.(AR 25.) The ALJ stated that West's statements related to the intensity, persistence, and limiting effects of her symptoms “are not entirely consistent with the medical evidence and other evidence in the record.” (AR 26.)
At step four, the ALJ concluded that West has past relevant work as a chef, “(DOT #313.131-014), light but performed at the medium exertional level, SVP 7 (private in home);” deli chef, “(cook) (DOT #313.374-010) medium and performed at medium exertional level, SVP 5 (grocery);” and cook, “(DOT #315.361-010) medium and performed at medium exertional level, SVP 6 (outfitter).” (AR 29.) At step five, the ALJ resolved that West is capable of performing her past relevant work as a chef “as generally performed in the national economy but not as actually performed.” Id. To make this determination, the ALJ relied on the VE's testimony. Id.
On September 15, 2020, the Appeals Council denied West's request for review thus making the ALJ's unfavorable decision the Commissioner's final decision for purposes of this Court's review under §§ 405(g) and 1383(c)(3). (AR 1-3.) On November 4, 2020, West filed a complaint challenging the ALJ's unfavorable decision. (Doc. 1.) This Court has jurisdiction pursuant to §§ 405(g) and 1383(c)(3).
II. ISSUES ON REVIEW
West raises only one issue on review. West asserts that “the case should be remanded for consideration of evidence because the ALJ misinterpreted vocational expert (VE) testimony to determine that West could return to past relevant work.” (Doc. 24 at 2.)
III. STANDARD OF REVIEW
A person is disabled if their “physical or mental impairment or impairments are of such severity” that they are unable to do both their previous work and, considering their “age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists” in their immediate area, or whether a specific job vacancy exists for them, or whether they would be hired if they applied for work. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
“The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings of the Commissioner are meant to be conclusive if supported by substantial evidence. §§ 405(g), 1383(c)(3). Substantial evidence is “more than a mere scintilla but less than a preponderance.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)).
The court may overturn the decision to deny benefits only “when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). This is because the ALJ “and not the reviewing court must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Matney ex rel. Matney, 981 F.2d at 1019 (quoting Richardson v. Perales, 402 U.S. 389, 400 (1971)); see Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). The Commissioner's decision, however, “cannot be affirmed simply by isolating a specific quantum of supporting evidence.” Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). Reviewing courts must consider the evidence that supports as well as detracts from the Commissioner's conclusion. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975). Even if the ALJ made an error, courts may affirm if the error was harmless, in other words that it was “inconsequential to the ultimate nondisability determination.” Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (quoting Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)). Courts cannot “affirm the denial of benefits on a ground not invoked by the Commissioner in denying the benefits originally.” Stout v. Comm'r of Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (quoting Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir. 2001)); see Marsh v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015).
IV.DISCUSSION
Plaintiff argues the ALJ's step-four conclusion, that Plaintiff can perform her past relevant work, is not supported by substantial evidence. Specifically, Plaintiff asserts that the ALJ misinterpreted the VE's testimony to determine that West could return to past relevant work as a chef. (Doc. 24 at 2.)
To support a determination that the claimant has the capacity to perform her past relevant work, the ALJ must make three findings: “1. A finding of fact as to the individual's RFC. 2. A finding of fact as to the physical and mental demands of the past job/occupation. 3. A finding of fact that the individual's RFC would permit a return to his or her past job or occupation.” Titles II & Xvi: A Disability Claimant's Capacity to Do Past Relevant Work, in Gen., SSR 82-62 (1982). The assessment at step two and three can be based on one of two findings, “1. The actual functional demands and job duties of a particular past relevant job; or 2. The functional demands and job duties of the occupation as generally required by employers throughout the national economy.” Titles II and Xvi: Past Relevant Work-the Particular Job or the Occupation as Generally Performed, SSR 82-61. Thus, a claimant is not disabled if she “can perform the functional demands and job duties as generally required by employers throughout the economy.” SSR 82-61; Villa v. Heckler, 797 F.2d 794, 798 (9th Cir. 1986) (Plaintiff has the “burden of proving an inability to return to his former type of work and not just to [her] former job.”).
ALJs may rely on “the general job categories of the Dictionary, with its supplementary Selected Characteristics, as presumptively applicable to a claimant's prior work.” Villa, 797 F.2d at 798 Claimants can overcome this presumption “by demonstrating that the duties in his particular line of work were not those envisaged by the drafters of the category.” Id. Social Security Ruling 82-61 sets forth the “generally performed test” as follows:
A former job performed in by the claimant may have involved functional demands and job duties significantly in excess of those generally required for the job by other employers throughout the national economy. Under this test, if the claimant cannot perform the excessive functional demands and/or job duties actually required in the former job but can
perform the functional demands and job duties as generally required by employers throughout the economy, the claimant should be found to be “not disabled.”SSR 82-61(3). “[T]he ALJ may not classify a past occupation ‘according to the least demanding function.'” Stacy v. Colvin, 825 F.3d 563, 569-70 (9th Cir. 2016) (quoting Carmickle v. Comm'r, SSA, 533 F.3d 1155, 1166 (9th Cir. 2008)).
Here, he ALJ assessed Plaintiff's RFC as required and concluded Plaintiff could perform light work. (AR 25); 20 C.F.R. § 404.1567(b). Plaintiff is not challenging the ALJ's RFC finding. (Doc. 24 at 6.) With respect to the second and third factors, the ALJ made the following findings:
The claimant is capable of performing past relevant work as a Chef. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565).
. . . The [] claimant had past relevant work as follows:
• Chef (DOT #313.131-014), light but performed at the medium exertional level, SVP 7 (private in home)
• Deli Chef (cook) (DOT #313.374-010) medium and performed at medium exertional level, SVP 5 (grocery)
• Cook (DOT #315.361-010) medium and performed at medium exertional level, SVP 6 (outfitter)
After a review of the evidence and a comparison of the physical and mental demands of this past relevant work to the claimant's residual functional capacity, undersigned adopts the vocational expert's testimony and finds that the claimant can perform her past relevant work of a Chef, DOT #313.131-014, as generally performed in the national economy but not as actually performed. Undersigned notes that the vocational expert initially testified that this position was a composite position, however after further testimony of the claimant and close scrutiny of the example duties of a Chef (private in home) (DOT #313.131-014), the vocational expert determined this work was actually not a composite job. Hearing at 11:37).(AR 29.) The Parties do not contest the ALJ's conclusion that Plaintiff is unable to perform her past relevant work as a deli chef or cook as actually or generally performed, nor do they contest that she cannot perform her past relevant work as a chef as actually performed. Thus, the sole issue is whether the ALJ's determination that Plaintiff can perform her past relevant work of a chef as generally performed in the national economy is supported by substantial evidence. (Doc. 24 at 8-10; Doc. 27 at 5.)
Plaintiff testified a wealthy family employed her as a private chef, in which her duties could range from cooking a meal for a single person to cooking for parties of up to fifty or more people. (AR 54.) Plaintiff testified that this position entailed cooking for the family two meals per day, but the family hosted a lot of events and three- or four-day retreats, which would require cooking three meals per day for about thirty people on average. (AR 58, 60.) Plaintiff also had to manage all the food and drink inventory, handle all the ordering and purchasing of food and drinks, perform duties of a hostess and greet arrivals and direct them to their rooms when the family was not there, handle bookwork and paperwork, be on site for scheduled maintenance, handling hiring and supervision of temporary staff for the large events/retreats, prepare menus for all meals, and cleaning the kitchen after each meal. (AR 58-60, 65-66.) Plaintiff's schedule while hosting large groups would usually entail working from 5:00 a.m. until 11:00 p.m., but she would have shorter days when she only had to prepare meals for the family since she did not have to prepare breakfast. (AR 60.)
The VE testified Plaintiff had worked as a chef (DOT #313.131-014), which the DOT classifies as light, skilled, SVP 7, but Plaintiff performed it as a medium level. (AR 62.) Further, the VE testified that West had worked in a private duty capacity and at times performed the functions of a catering manager or manager of food services (187.167-106, light, skilled, SVP 7). (Id.) The VE initially stated that at times Plaintiff's performed her position as a hybrid job, but after further questioning the VE clarified that Plaintiff's additional duties; e.g. preparing the menu, manage inventory, coordinating other staff, etc., are contained within the DOT description for chef and, thus, her position was not a composite position. (AR 65-67.) Upon questioning by counsel for the Plaintiff, the VE testified that “It sounds to me like she's had jobs that aren't typical, . . . . Those are more unique. . . . It sounds to make her jobs more unique, though, as far as being the cook because her job tasks varied. They're not the same every single day, like working in a restaurant.” (AR 70-71.)
Group 313 of the DOT “includes occupations concerned with planning menus, estimating consumption, and cooking food in hotels or restaurants.” 313 CHEFS AND COOKS, HOTELS AND RESTAURANTS, https://occupationalinfo.org/defset52413.html (last accessed January 20, 2022). The occupation of chef (DOT #313.131-014) has an industry designation within the Hotel and Restaurant Industry and it description is:
Supervises, coordinates, and participates in activities of cooks and other kitchen personnel engaged in preparing and cooking foods in hotel, restaurant, cafeteria, or other establishment: Estimates food consumption, and requisitions or purchases foodstuffs. Receives and examines foodstuffs and supplies to ensure quality and quantity meet established standards and specifications. Selects and develops recipes based on type of food to be prepared and applying personal knowledge and experience in food preparation. Supervises personnel engaged in preparing, cooking, and serving meats, sauces, vegetables, soups, and other foods. Cooks or otherwise prepares food according to recipe [COOK (hotel & rest.) 313.361-014]. Cuts, trims, and bones meats and poultry for cooking. Portions cooked foods, or gives instructions to workers as to size of portions and methods of garnishing. Carves meats. May employ, train, and discharge workers. May maintain time and payroll records. May plan menus. May supervise kitchen staff, plan menus, purchase foodstuffs, and not prepare and cook foods [EXECUTIVE CHEF (hotel & rest.) 187.167-010]. . . .313.131-014 Chef, DICOT 313.131-014, 1991 WL 672704 (2016).
Plaintiff argues that her past relevant work “was not just a cook but a banquet coordinator in a private home, a position that the DOT does not contemplate.” (Doc. 24 at 10.) Plaintiff emphasizes that the context of position identified by the VE is in a hotel or restaurant, not a private home. Id. at 9. Additionally, Plaintiff states that, while the DOT contains a job title that addresses a private home setting, Cook (domestic ser., DOT 305.281-010), it does not encompass all of her duties. Id. “Ms. West is likely to be able to show not only that her job duties in the past relevant work that she was found able to perform at the light level was actually medium work not contemplated by the DOT, as explained above; but also that her skills would not transfer to other light positions with “very little, if any, vocational adjustment required in terms of tools, work processes, work settings, or the industry.'” (Doc. 24 at 11) (quoting 20 CFR part 404, Appendix 2, Rule 202.00.f). Plaintiff further asserts that “Because Ms. West is a person closely approaching retirement age, changing work setting from remote outfitter, grocery store, or private residence to something like a restaurant would be more than ‘very little' vocational adjustment.” (Id.).
The Commissioner responds that Plaintiff's arguments are misplaced because she relies on descriptions of duties as she “actually performed” them and that the “DOT description of the chef occupation notes that the worker could be ‘cooking food in hotel, restaurant, cafeteria, or other establishment.' Thus, a private in home chef would reasonably fall within that description.” (Doc. 27 at 5-6) (quoting DOT #313.131-014). Further, the Commissioner argues that a claimant is the primary source for how a job is actually performed, but the ALJ may rely on the VE's testimony and the DOT as to how a job is generally performed. (Doc. 27 at 6.)
Plaintiff's argument that her past relevant work is a position not contemplated by the DOT and that the context of position was misidentified by the VE is unavailing. In Lourdes V. v. Berryhill, the plaintiff argued that the context of the her past relevant work was misidentified where the VE identified the position as a Food and Beverage Order Clerk (hotel & rest.), but the plaintiff argued her position was strictly clerical in nature and should be identified as Order Clerk (clerical). No. 2:18-CV-02157-AFM, 2019 WL 1639746, at *3 (C.D. Cal. Apr. 15, 2019). The court held “that while the occupation identified by the VE may not be a precise match with Plaintiff's job . . ., it is entirely consistent with Plaintiff's own description of her job as answering phones and taking produce orders.” Id. The Court further held that “Although Plaintiff did not perform her duties in the setting of a restaurant or hotel, she cites no authority for the proposition that the variation in setting necessarily precludes the conclusion reached by the VE.” Id. The court also reviewed the record as a whole and noted that “nothing in the record suggests that her duties substantially differ from the description in the occupation of order clerk, food and beverage.” Id.
Similarly, here, although the occupation of chef (DOT #313.131-014) (hotel & rest.), as identified by the VE, “may not be a precise match with Plaintiff's job” as a chef in a private home setting, “it is entirely consistent with Plaintiff's own description of her job.” See Dawn H. v. Berryhill, No. 3:17-CV-1927-SI, 2019 WL 281289, at *6 (D. Or. Jan. 22, 2019) (“Although the DOT description does not precisely match Plaintiff's description of her work as a document preparer, the Court concludes that the ALJ did not err” because “her work was analogous”). As discussed above, Plaintiff fully testified as to her job duties, supra at 7, and the ALJ and the VE relied upon Plaintiff's testimony in determining that she can perform her past relevant work as a chef (hotel & rest.) as generally performed in the national economy. See SSR 82-62 (“The claimant is the primary source for vocational documentation, and statements by the claimant regarding past work are generally sufficient for determining the skill level[, ] exertional demands and nonexertional demands of such work.”); Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993) (stating that claimant's own description of past work is considered highly probative).
Additionally, “[t]he DOT is used to define the requirements of jobs as ‘usually performed,' which may vary from specific former jobs.” Cook v. Astrue, No. CV-08-636-TUC-DTF, 2010 WL 729414, at *15-17 (D. Ariz. Mar. 1, 2010) (citing SSR 82-61). In Coehoorn v. Berryhill, the court discussed that in the Ninth Circuit “the ‘generally performed test' is designed for situations where a claimant's past job was especially demanding when compared with industry standards.” No. ED CV 16-373-KS, 2017 WL 1407636, at *7 (C.D. Cal. Apr. 19, 2017) (quoting Stacy v. Colvin, 825 F.3d 563, 569 (9th Cir. 2016) (citation omitted)). Further, the court held that:
Nevertheless, an ALJ is authorized to use a VE to evaluate “how a particular job is usually performed” and evaluate that job “according to the particular facts of each individual case.” See SSR 82-61. Consequently, a VE or an ALJ may properly determine at step four that the demands and duties of a claimant's PRW correspond to the “industry standard” of a job description in the DOT, even where the claimant “actually performed” that job at a higher exertional level, and find that the claimant can perform that job as it was “generally performed” in the national economy, so long as that determination is supported by substantial evidence. See Stacy, 825 F.3d at 570-71. In other words, if substantial evidence supports the finding that a job identified by the VE and relied upon by the ALJ is equivalent as “generally performed” to the PRW, a denial at step four may be upheld. See id.Id.
Plaintiff's position was initially discussed as a hybrid/composite job due to the additional duties beyond simply cooking. The ALJ elicited additional testimony from both Plaintiff and the VE and determined that cooking was Plaintiff's primary duty, estimated at 80 percent of the requirements of her position, and the additional duties were encompassed within the requirements of chef (DOT #313.131-014) (hotel & rest.). (AR 65-67); see Stacy, 825 F.3d at 569-70 (holding that where Plaintiff was engaged in his primary duty 70-75 percent of the time, “[t]he fact that his employer also required him to occasionally do other, non-supervisory tasks does not change the fundamental nature of his work.”). The VE testified that Plaintiff's position in a private home that consisted of cooking for a family as well as cooking for large event gatherings was “unique” and that she would be unable to perform her position as actually performed. However, the VE testified that based upon the Plaintiff's testimony as to the duties of her past relevant work and the ALJ's RFC determination, that Plaintiff could perform the position of chef (DOT #313.131-014) (hotel & rest.) as generally performed in the national economy.
The Court must consider the entirety of the record in determining whether to affirm the Commissioner's decision. Tackett, 180 F.3d at 1098. The ALJ, relying upon the testimony of Plaintiff and the VE, ultimately concluded that Plaintiff could perform her past work as a chef (hotel & rest.), and that finding is not erroneous. See Carillo-Yeras v. Astrue, 671 F.3d 731, 734 (9th Cir. 2011) (“We may overturn the ALJ's decision ‘only if it is not supported by substantial evidence or if it is based on legal error.'” (quoting Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002))). Nothing in the record suggests that West's duties substantially differ from the description in the occupation of chef (hotel & rest.). See Lourdes V., 2019 WL 1639746, at *3. There is substantial record evidence to support the conclusion that Plaintiff could perform her past relevant work as generally performed in the national economy and it is this evidence upon which the ALJ relied for his decision. Accordingly, the Court recommends that the district court find the ALJ did not err as to this issue.
V. RECOMMENDATION
Based on the foregoing, the Magistrate Judge RECOMMENDS that the district court, after its independent review, enter an order affirming the Commissioner's final decision.
This Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Fed. R. App. P., should not be filed until entry of the district court's judgment.
However, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the District Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a, d), 72(b). Thereafter, the parties have fourteen (14) days within which to file a response to the objections. No. reply briefs shall be filed unless the district court grants leave to do so. The Clerk of Court is directed to terminate the referral of this matter. Filed objections should bear the following case number: CV-20-00487-TUC-SHR. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).