OpenJurist

917 F2d 1307 Madrigal v. W Sullivan

917 F.2d 1307

Unpublished Disposition

Edward C. MADRIGAL, Plaintiff-Appellant,
v.
Louis W. SULLIVAN, M.D.,* Secretary of Health
and Human Services, Defendant-Appellee.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

1

No. 89-55590.

2

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 1, 1990.
Decided Nov. 8, 1990.

3

Before ALARCON and WILLIAM A. NORRIS, Circuit Judges, and MARSH, District Judge**

4

MEMORANDUM***

5

Appellant Edward Madrigal appeals the denial of his application for social security benefits. The ALJ found that appellant was not disabled and was capable of performing sedentary work. A vocational expert testified that plaintiff could perform the job of a self-service parking lot attendant or gate keeper. The Dictionary of Occupational Titles (hereinafter "DOT") classifies the jobs of parking lot attendant and gate keeper as requiring "light" exertion. Appellant contends that the ALJ should be precluded from relying upon vocational expert testimony about the level of exertion required to perform a job that has already been classified by the DOT.

STANDARD OF REVIEW

6

The Court of Appeals reviews the district court's grant of summary judgment de novo. Boyes v. Sullivan, 901 F.2d 717, 721 (9th Cir.1989). However, the role of the court in reviewing the Secretary's decision is a limited one. Id. (quoting Allen v. Heckler, 749 F.2d 577, 579 (9th Cir.1985).) The court will set aside a denial of benefits "only if the Secretary's findings are based upon legal error or are not supported by substantial evidence in the record as a whole." Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir.1989); see 42 U.S.C. Sec. 405(g) (1982).1 In determining whether there is substantial evidence, the court is required to review the administrative record as a whole. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir.1989).

DISCUSSION

7

1. Use of Vocational Expert Testimony to Rebut DOT Classification

8

The DOT, with its supplementary Selected Characteristics, contains relevant information concerning various types of work as well as detailed descriptions of the skills and tasks involved in most jobs in the economy. Employment and Training Administration, U.S. Dept. of Labor, Selected Characteristics of Occupations Defined in the DOT (1981).

9

Following the district court's decision and the filing of this appeal, this court issued a decision in Barker v. Secretary of Health and Human Services, 882 F.2d 1474 (9th Cir.1989) which supports the district court's conclusion. In Barker, a vocational expert testified that the claimant was capable of performing hospital laundry work, which he classified as "light work." On appeal, the claimant argued that the vocational expert incorrectly characterized the laundry worker job as "light work" when the DOT classifies laundry work as "medium." The court found "[t]his argument meritless, since as the vocational expert testified, his testimony referred to hospital laundry work and distinguished from the commercial laundry work described in the DOT." Id. at 1478, n. 1.

10

Appellant contends that his position is supported by Terry v. Sullivan, 903 F.2d 1273, 1278-79 (9th Cir.1990). However, that decision is not on point. In Terry, the ALJ relied upon a vocational expert's testimony that an older, semi-skilled claimant could perform jobs which the DOT indicated required significant training, and a job not specifically identified by the DOT, without an explanation of why the skill classification was inapplicable. Terry is distinguishable both because it involved the transferability of skills rather than an exertional classification, and also because this court refused to reach the issue of whether an expert may identify jobs not specifically delineated in the DOT, instead holding that the overall evidence was insufficient to satisfy the more stringent burden placed upon the Secretary due to the claimant's age. Id. at 1278-79.

11

Further, a "Special Notice" found in the Selected Characteristics of Occupations Defined in the DOT advises that

12

"The user should be cautious in interpreting information in this publication. Occupational definitions described in the [DOT], are composite descriptions of occupations as they may typically occur and may not coincide with a specific job as actually performed in a particular establishment or in a given industry."

13

Id. (emphasis added), Introduction, p. v. See also Wright v. Sullivan, 900 F.2d 675, 683 (3rd Cir.1990) (recognizing that DOT's listing of jobs is not all-inclusive).

14

The district court concluded that the jobs identified by the vocational expert were not specifically delineated in the DOT, and did involve a lower exertional level than that identified by the DOT classifications. The record fully supports this conclusion. Dr. Aloia, the vocational expert, sufficiently distinguished the jobs of "self-service" parking lot attendant or gate keeper from the jobs identified in the DOT which involved greater supervision of the premises and more active involvement in parking the automobiles.

15

Thus, the ALJ may properly rely, as he did here, upon the more specific and detailed vocational expert testimony regarding potential jobs for someone with claimant's limitations. Accordingly, although the DOT is an administrative tool that should be used as a starting point for analysis, it does not apply to all jobs in the economy and should not be used to foreclose reliance upon supplemental information from vocational experts.

2. Issues not before the District Court

16

Claimant contends that the ALJ erred by failing to consider all reported impairments in determining his residual functional capacity, failing to include all reported impairments in the hypothetical question given to the vocational expert, and improper reliance on the medical-vocational grids where claimant suffered from non-exertional impairments not addressed by the grids.

17

Generally, the court of appeals will not consider arguments not raised in the district court. Copeland v. Bowen, 861 F.2d 536, 540-41 (9th Cir.1988) (quoting Hormel v. Helvering, 312 U.S. 552, 556-57, 61 S.Ct. 719, 721, 85 L.Ed. 1037 (1941)). Such arguments may be considered if evidence of exceptional circumstances is presented. Id.

18

Based on the record, the latter three issues raised by claimant on appeal were not raised in the district court. No exceptional circumstances have been shown, and the issues will not be considered.

19

AFFIRMED.

*

Louis W. Sullivan is substituted for Otis R. Bowen pursuant to Fed.R.App.P. 43(c)(1)

**

Honorable Malcolm F. Marsh, United States District Judge for the District of Oregon, sitting by designation

***

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

1

"Substantial evidence" means more than a mere scintilla, but less than a preponderance. It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Swenson, 876 F.2d at 687 (citations omitted)