Page:Datastorm Technologies v. Excalibur Communications.pdf/6

 that it prevented her from performing her previous jobs of office management coordinator, housecleaner, and telephone salesperson.

Once the plaintiff established that she could not perform her previous jobs, the burden shifted to the Secretary to demonstrate that plaintiff could engage in other types of substantial gainful work that exist in the national economy. See, e.g., Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir.1984). Here, the ALJ found that plaintiff could not perform her past work, which was classified as exertionally “light” or “medium,” as defined by HHS regulations. 20 C.F.R. § 404.1567. At plaintiff’s hearing the ALJ took the testimony of a vocational expert, who testified that in spite of her impairments plaintiff could perform other jobs identified as “cashier II” and “ticket taker” jobs. Accordingly, the ALJ found that plaintiff was ineligible for disability benefits. It is this finding that plaintiff challenges.

Plaintiff’s motion attacks the ALJ’s failure to use the job definitions in the Dictionary of Occupational Titles (D.O.T.) published by the Department of Labor, among other things. Specifically, plaintiff argues that the D.O.T.’s definition of “cashier II” requires the ALJ to find plaintiff disabled, based on the ALJ’s previous finding that plaintiff was limited to sedentary work. As plaintiff points out, the D.O.T. defines the job of “cashier II” as requiring “light” exertion. § 211.462–010, D.O.T. (4th ed., rev. 1991).

The same argument applies to the ALJ’s finding that plaintiff could do a ticket taker job. The Secretary points out, and plaintiff does not dispute, that the vocational expert misspoke and should have referred to the job plaintiff could perform as “ticker seller,” rather than “ticket taker.” “Ticket seller” is defined in § 211.467–030 of the D.O.T. as also requiring light exertion.

Thus, if the ALJ was obligated to use the same job definitions in the D.O.T., plaintiff must prevail. In this case, the Court concludes that the ALJ erred in failing to use those job definitions.

20 C.F.R. § 416.966(d) provides, in pertinent part, as follows: "When we determine that unskilled, sedentary, light, and medium jobs exist in the national economy (in significant numbers either in the region where you live or in several regions of the country), we will take administrative notice of reliable job information available from various governmental and other publications. For example, we will take notice of—

(1) Dictionary of Occupational Titles, published by the Department of Labor…."

20 C.F.R. § 416.967 provides, in pertinent part, as follows: "To determine the physical exertion requirements of work in the national economy, we classify jobs as sedentary, light, medium, heavy, and very heavy.

These terms have the same meaning as they have in the Dictionary of Occupational Titles, published by the Department of Labor."

(bold added.)

The Secretary does not dispute that if the definitions in the D.O.T. must be applied, then the ALJ’s findings were erroneous; however, the Secretary contends that the definitions do not apply for two reasons. First, she contends that they are wrong. Specifically, she argues that “it is common knowledge that the [D.O.T.] contains only general occupational descriptions, whereas the [vocational expert] testified on the basis of his personal knowledge of specific jobs.” Regarding the ticket seller job, the Secretary argues that “it is common knowledge shared by anyone who has attended a ball game or a movie that ticket sellers … frequently perform this occupation at the sedentary level of exertion.”

While the Secretary’s argument is not frivolous, it is contrary to controlling authority. In Terry v. Sullivan, 903 F.2d 1273 (9th Cir.1990), the 9th Circuit reviewed a claimant’s argument that the same job definitions involved herein—cashier II and ticket seller—were binding on the Secretary. The 9th Circuit agreed with the claimant, stating that:

[The claimant’s] argument is persuasive because it relies entirely on the Secretary’s own resources. Both [cashier II and ticket