Page:Datastorm Technologies v. Excalibur Communications.pdf/7

 seller] are defined in the Dictionary of Occupational Titles, U.S, Dep’t of Labor (4th ed. 1977) (DOT ), as well as Selected Characteristics of Occupations Defined in the Dictionary of Occupational Titles, U.S. Dep’t of Labor (1981) (Selected Characteristics ). The Secretary routinely relies on these publications in determining the skill level of a claimant’s past work, and in evaluating whether the claimant is able to perform other work in the national economy. See Villa v. Heckler, 797 F.2d 794, 798 (9th Cir.1986) (“The Secretary may rely on the general job categories of the [DOT], with its supplementary Selected Characteristics, as presumptively applicable to a claimant's prior work.”). See also 20 CFR. § 404.1566(d)(1) (DOT is the Secretary’s primary source of reliable job information)…. 903 F.2d at 1276.

The burden was on the Secretary to show why the job descriptions in the D.O.T. should not apply in this case. Terry, supra, 903 F.2d at 1278. Plainly, the vocational expert was applying the D.O.T. when he testified. He specifically referred to “cashier II,” not simply “cashier.” Nor is the Secretary’s appeal to “common knowledge” persuasive; it would be presumptuous for the Court to take judicial notice that the definitions were simply wrong, given the enormous amount of research that has obviously gone into compiling them. It may be that there are other subcategories of cashier than those listed in the D.O.T. If so, and if such other subcategories were at the sedentary rather than the light exertional level, that would have been an appropriate subject for expert testimony. Distasio v. Shalala, 47 F.3d 348, 350 (9th Cir.1995). No such testimony was sought.

In short, the D.O.T. definitions were presumptively applicable, and it was the Secretary’s burden to produce evidence to the contrary. She failed to do so.

The Secretary argues alternatively that there was no need for a vocational expert to testify as to whether there were jobs that plaintiff could perform. This argument is based on the assumption that the plaintiff was capable of performing a full range of sedentary work and that the rules in 20 C.F.R. Part 404, Subpart P, Appendix 2 (the “grids”) thus dictate that plaintiff was not disabled. If the ALJ had clearly made a finding that plaintiff could perform a full range of sedentary work, the Secretary’s argument might be persuasive. 20 C.F.R. Part 404, Subpart P, Appendix 2, § 200.00(a) provides, in pertinent part, that: "… Where the findings of fact made with respect to a particular individual’s vocational factors and residual functional capacity coincide with all of the criteria of a particular rule, the rule directs a conclusion as to whether the individual is or is not disabled…."

However, the ALJ never found that plaintiff could perform a full range of sedentary work. In fact, the ALJ stated that he was using grid Rule 202.21 as a “framework,” because he did not consider it dispositive of plaintiff’s claim. The ALJ was required to look beyond the grids. When a claimant suffers from an impairment that restricts her performance of a full range of work at the appropriate exertional level, the grids are not dispositive, and the Secretary must rely on other evidence. 20 C.F.R. Part 404, Subpart P, Appendix 2, § 200.00(e); Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 577 (9th Cir.1988).

The Secretary argues that the Court should ignore the Secretary’s own decision that the plaintiff was not capable of performing a full range of sedentary work, because it was not supported by substantial evidence. She contends that, pursuant to 42 U.S.C. § 1383(c)(3), which incorporates 42 U.S.C. § 405(g), the Court has the authority to make new findings that the ALJ never made,