Maria Lourdes Suarez v. Michael J. Astrue, No. 2:2008cv03989 - Document 17 (C.D. Cal. 2009)

Court Description: MEMORANDUM AND OPINION; ORDER by Magistrate Judge Oswald Parada: IT THEREFORE IS ORDERED that Judgment be entered affirming the decision of the Commissioner, and dismissing this action with prejudice. (am)

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1 ` 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 MARIA LOURDES SUAREZ, ) Case No. CV 08-3989-OP ) Plaintiff, ) ) MEMORANDUM OPINION; ORDER v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) ) Defendant. ) ) 18 The Court1 now rules as follows with respect to the disputed issue listed in 19 the Joint Stipulation ( JS ).2 20 /// 21 /// 22 23 24 25 26 27 28 1 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the United States Magistrate Judge in the current action. (See Dkt. Nos. 8, 9.) 2 As the Court advised the parties in its Case Management Order, the decision in this case is being made on the basis of the pleadings, the Administrative Record, and the Joint Stipulation filed by the parties. In accordance with Rule 12(c) of the Federal Rules of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g). 1 I. 2 DISPUTED ISSUE 3 As reflected in the Joint Stipulation, the disputed issue which Plaintiff is 4 raising as the ground for reversal and/or remand is whether Plaintiff retains the 5 residual functional capacity ( RFC ) to perform her past relevant occupation of 6 hospital housekeeper. (JS at 3.) 7 II. 8 STANDARD OF REVIEW 9 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s decision 10 to determine whether the Commissioner s findings are supported by substantial 11 evidence and whether the proper legal standards were applied. DeLorme v. 12 Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means more 13 than a mere scintilla but less than a preponderance. Richardson v. Perales, 402 14 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Desrosiers v. Sec y of 15 Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial 16 evidence is such relevant evidence as a reasonable mind might accept as 17 adequate to support a conclusion. Richardson, 402 U.S. at 401 (citation 18 omitted). The Court must review the record as a whole and consider adverse as 19 well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 20 1986). Where evidence is susceptible of more than one rational interpretation, the 21 Commissioner s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 22 1452 (9th Cir. 1984). 23 III. 24 DISCUSSION 25 The ALJ Properly Determined that Plaintiff Could Perform Her Past 26 Relevant Work. 27 Plaintiff contends that the ALJ improperly determined that she can perform 28 2 1 her past relevant work as a hospital housekeeper. (JS at 4-10, 14.) Specifically, 2 Plaintiff argues that she cannot perform her past relevant work because she does 3 not have the requisite language skills due to her illiteracy and inability to 4 communicate in English, and she no longer retains the physical ability to perform 5 the job. (Id. at 5.) The Court disagrees.3 6 Here, the ALJ relied on the opinions of Plaintiff s treating physicians and 7 consultative examiners, combined with the medical record as a whole, to 8 determine that Plaintiff retained the RFC to perform a range of medium work 9 with no significant limitations. (AR at 23.) At the hearing, Plaintiff testified that 10 she was previously employed as a housekeeper at Arcadia Methodist Hospital, 11 and she quit her previous employment because she broke her leg. (Id. at 471.) 12 Given the above limitations, the ALJ requested that the VE identify Plaintiff s 13 vocational profile, including her past relevant work. (Id. at 475.) The VE 14 identified Plaintiff s vocational profile and past relevant work as follows: 15 Present age is age 54 which classifies her as a person closely 16 approaching advanced age. She has a 6th grade education classfying 17 [sic] her as a person with a marginal education. And as she testified 18 here today she spoke very little English. She worked as a hospital, 19 hospital cleaner, a hospital housekeeper, DOT code 323.687-010. 20 That s medium and unskilled work with an SVP of two and according 21 22 3 23 24 25 26 27 28 Plaintiff also argues that, [t]he same analysis applies to any alternative work which the ALJ may have inquired about during the hearing. (JS at 14 n.5.) Regardless of Plaintiff s contention, the ALJ is not required to determine whether Plaintiff can perform alternative work if the ALJ properly determines that Plaintiff can perform her past relevant work. See Lester v. Chater, 81 F. 3d 821, 828 n.5 (9th Cir. 1995); see also Tackett v. Apfel, 180 F. 3d 1094, 1098 (9th Cir. 1999) (If a claimant is found disabled or not disabled at any step of the fivestep analysis, there is no need to complete further steps.). 3 1 to 9E3 it appears she also performed it a medium level. 2 (Id.) The VE then opined that if Plaintiff was limited to a range of medium work, 3 she could perform her past relevant work of hospital housekeeper. (Id. at 476.) 4 After reviewing the medical evidence and properly discounting Plaintiff s 5 credibility, the ALJ agreed with the VE s conclusion and determined that Plaintiff 6 could perform her past relevant work as hospital housekeeper.4 (Id. at 23.) 7 A. 8 Due to her alleged inability to stand and walk for seven hours, Plaintiff 9 Physical Demands. argues that she is unable to perform the job of hospital housekeeper. (JS at 5-6.) 10 In the ALJ s RFC finding, the ALJ determined, inter alia, that Plaintiff can 11 perform a range of medium work while sitting, standing, and walking for six 12 hours in an eight-hour workday. (AR at 23.) While Plaintiff indicated that her 13 past relevant job required her to stand and walk for seven hours, the VE 14 determined that Plaintiff, contrary to her allegations, performed her past relevant 15 work of hospital housekeeper at a medium level. (Id. at 123, 475-76.) Notably, 16 the ALJ discounted Plaintiff s allegations of disabling pain and symptoms based 17 on the adverse credibility finding. (Id. at 26-27.) The ALJ indicated that Plaintiff 18 made many [i]nconsistent statements, causing the ALJ to be cautious 19 accepting the claimant s allegations in the absence of substantial objective 20 medical support. 5 (Id. at 27.) Thus, the ALJ s adverse credibility finding 21 combined with the VE s testimony that Plaintiff performed her past work at a 22 medium level both indicate that Plaintiff could perform the job of hospital 23 housekeeper, both generally and as actually performed. 24 25 26 27 28 4 See U.S. Dep t of Labor, Dictionary of Occupational Titles [hereinafter DOT ], § 323.687-010 (4th ed. Rev. 1991). 5 Plaintiff does not dispute the ALJ s credibility finding. (See generally JS.) Accordingly, the Court will not address this issue. 4 1 B. 2 Plaintiff argues that her illiteracy and inability to communicate in English 3 4 Language Requirement. also prevent her from performing her past relevant work. (JS at 5-7.) Hospital Housekeeper requires the ability to perform medium work with a 5 Language Level of two. See DOT § 323.687-010. Level two provides that a 6 claimant will be able to fulfill the following reading, writing, and speaking 7 requirements: 8 Reading: Passive vocabulary of 5,000-6,000 words. Read at rate 9 of 190-215 words per minute. Read adventure stories and comic books, 10 looking up unfamiliar words in dictionary for meaning, spelling, and 11 pronunciation. 12 airplanes. Read instructions for assembling model cars and 13 Writing: Write compound and complex sentences, using cursive 14 style, proper end punctuation, and employing adjectives and adverbs. 15 Speaking: Speak clearly and distinctly with appropriate pauses 16 and emphasis, correction punctuation, variations in word order, using 17 present, perfect, and future tenses. 18 DOT App. C § III. Language development and reasoning development are two 19 of three divisions comprising the General Educational Development ( GED )6 20 Scale. Id. 21 22 Plaintiff incorrectly argues that the Commissioner bears the burden of proving that Plaintiff is illiterate and unable to communicate in English. (JS at 6 23 24 25 26 27 28 6 The GED scale embraces those aspects of education (formal and informal) which are required of the worker for satisfactory job performance. This is education of a general nature which does not have a recognized, fairly specific occupational objective. Ordinarily, such education is obtained in elementary school, high school, or college. However, it may be obtained from experience and self-study. DOT App. C. 5 1 citing Silveira v. Apfel, 204 F. 3d 1257, 1261 n.14 (9th Cir. 2000).) The court in 2 Silveira held that the Commissioner, at step five, bears the burden of establishing 3 that plaintiff can perform other work given a plaintiff s RFC, age, education, and 4 work experience. Id.; see also Bustamante v. Massanari, 262 F. 3d 949, 953-54 5 (9th Cir. 2001.) However, the present case is a step-four issue and is, thus, unlike 6 the burden required in Silveira. A claimant has the burden of proof at steps one 7 through four of proving an inability to perform past relevant work, subject to the 8 presumption that Social Security hearings are non-adversarial, and to the 9 Commissioner s affirmative duty to assist claimants in fully developing the 10 record even if they are represented by counsel. Tackett, 180 F.3d at 1098 & n.3. 11 Thus, Plaintiff, not the Commissioner, bears the burden of proving that her 12 language skills prevented her from performing her past relevant work. Id. 13 Plaintiff argues that the record supports her contention that she is illiterate 14 and unable to communicate English for the following reasons: (i) she spoke in 15 Spanish to the social security field officer; (ii) she required interpretation services 16 at the hearing and during a consultative exam; and (iii) on her application for 17 benefits, she stated that she is unable to read, write, or speak in English. (JS at 5.) 18 However, the record belies Plaintiff s contention. At the hearing, Plaintiff 19 testified that she spoke very little English. (AR at 473.) Plaintiff also admitted 20 to taking and passing a nurse s assistant certification test, which was administered 21 in English. (Id.) Next, there are several instances in the record where Plaintiff s 22 treating and consultative physicians instructed her in English. (Id. at 388-89, 23 399-03, 417, 425-26.) In 2006, a patient chart summary noted that Plaintiff had 24 no physical, cognitive or language barriers to learning, and her patient 25 education was provided in English. (Id. at 403.) Thus, Plaintiff s contention that 26 she was illiterate and unable to communicate in English is unsupported by the 27 record. Moreover, as stated above, the ALJ discounted Plaintiff s contentions 28 6 1 based on an adverse credibility finding, which Plaintiff does not dispute. See 2 supra Part III.A. Accordingly, the Court finds that Plaintiff has failed to prove 3 that she is illiterate and unable to communicate in English. 4 To the extent Plaintiff argues that a conflict exists between the VE s 5 testimony and the DOT regarding language requirements, Plaintiff s argument is 6 without merit. When there is an apparent unresolved conflict between the VE 7 testimony and the DOT, the ALJ must elicit a reasonable explanation from the VE 8 to resolve the conflict. SSR 00-4p. However, there is no apparent conflict 9 between the VE testimony and the DOT. The VE explicitly included Plaintiff s 10 testimony that she spoke very little English in finding that Plaintiff could 11 perform her past relevant work. (AR at 475-76.) When asked if his opinions 12 were consistent with the DOT, the VE answered in the affirmative. (Id. at 476.) 13 Moreover, Plaintiff fails to explain how the language level two required of a 14 hospital housekeeper necessarily conflicts with her allegation that she spoke little 15 English. Thus, the Court is unable to find a that a conflict exists between the VE 16 testimony and the DOT regarding language requirements. 17 18 Based on the foregoing, the Court finds that the ALJ properly determined that Plaintiff could perform his past relevant work. Thus, there was no error. 19 IV. 20 ORDER 21 22 IT THEREFORE IS ORDERED that Judgment be entered affirming the decision of the Commissioner, and dismissing this action with prejudice. 23 24 25 Dated: September 15, 2009 HONORABLE OSWALD PARADA United States Magistrate Judge 26 27 28 7

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