Josefina S. Allain v. Michael J. Astrue, No. 2:2009cv00810 - Document 17 (C.D. Cal. 2009)
Court Description: MEMORANDUM OPINION and ORDER by Magistrate Judge Marc L. Goldman. The decision of the Commissioner is affirmed. (See Order for details) (db)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 WESTERN DIVISION 9 10 11 JOSEFINA S. ALLAIN, 12 Plaintiff, v. 13 14 15 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 09-00810-MLG MEMORANDUM OPINION AND ORDER 17 18 Plaintiff Josefina S. Allain seeks judicial review of the 19 Commissioner s denial of her application for Social Security 20 Disability Insurance ( SSDI ) benefits under the Social Security 21 Act. For the reasons stated below, the decision of the Social 22 Security Commissioner is affirmed. 23 24 I. Factual and Procedural History 25 Plaintiff was born on December 29, 1948. She has a college 26 education and has worked as a payroll supervisor, accountant, and 27 director of human resources. (Administrative Record ( AR ) at 104- 28 06.) 1 Plaintiff filed her application for disability benefits on May 2 28, 2006, alleging disability as of May 5, 2005 due to depression, 3 anxiety, 4 cholesterol. 5 initially on August 1, 2006, and upon reconsideration on May 18, 6 2007. (AR at 61, 68.) An administrative hearing was held on May 7, 7 2008 before Administrative Law Judge ( ALJ ) Dale A. Garwal. (AR at 8 31-58.) Plaintiff was represented by counsel and testified on her 9 own behalf. (AR at 34-52.) Vocational expert ( VE ) Ronald K. 10 dysthymic (AR disorder, at 98-99, high 118.) blood Her pressure, application and was high denied Hatakeyama also testified at the hearing. (AR at 53-57.) 11 ALJ Garwal issued an unfavorable decision on May 29, 2008. (AR 12 at 13 substantial gainful activity since her alleged onset date of May 5, 14 2005. 15 dysthymic disorder and personality disorder, but these impairments, 16 alone or in combination, did not meet the requirements of a listed 17 impairment in 20 C.F.R., Part 404, Subpart P, Appendix 1. (AR at 18 13-16.) The ALJ concluded that Plaintiff could not return to her 19 past relevant work, but that she retained the residual functional 20 capacity 21 environments not requiring more than minimal contact with the 22 public. (AR at 16-19.) Finally, the ALJ determined that Plaintiff 23 was not disabled because there were a significant number of jobs in 24 the national and local economy that Plaintiff could perform based 25 on testimony of the vocational expert and use of the Medical- 26 Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, App. 2, Rule 27 201 ( the grids ), as a framework for decision. (AR at 19-20.) 28 8-21.) The ALJ Plaintiff s ( RFC ) found severe to that Plaintiff impairments perform simple, had were not found routine engaged to tasks in include in work The Appeals Council denied review on December 4, 2008, (AR at 2 1 1-3), and Plaintiff commenced this action on February 6, 2009. 2 Plaintiff contends that the ALJ erred by failing to propound a 3 complete hypothetical to the VE. (Joint Stip. at 7.) 4 5 II. Standard of Review 6 Under 42 U.S.C. § 405(g), a district court may review the 7 Social Security Commissioner s decision to deny benefits. The 8 Commissioner s decision must be upheld unless the ALJ s findings 9 are based on legal error or are not supported by substantial 10 evidence in the record as a whole. Tackett v. Apfel, 180 F.3d 1094 11 (9th Cir. 1999); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 12 2007). Substantial evidence means more than a scintilla, but less 13 than a preponderance; it is evidence that a reasonable person might 14 accept as adequate to support a conclusion. Lingenfelter v. Astrue, 15 504 F.3d 1028, 1035 (9th Cir. 2007)(citing Robbins v. Soc. Sec. 16 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether 17 substantial evidence supports a finding, the reviewing court must 18 review the administrative record as a whole, weighing both the 19 evidence that supports and the evidence that detracts from the 20 Commissioner s conclusion. Reddick v. Chater, 157 F.3d 715, 720 21 (9th Cir. 1996). If the 22 or reversing the ALJ s conclusion, the reviewing court may not 23 substitute its judgment for that of the ALJ. Robbins, 466 F.3d at 24 882. 25 // 26 // 27 // 28 // evidence 3 can support either affirming 1 III. The ALJ Posed a Complete Hypothetical Question to the VE 2 Plaintiff contends that the ALJ failed to pose a complete 3 hypothetical 4 Plaintiff argues that the ALJ s description to the VE that she was 5 limited to simple, routine tasks with minimal social contact 6 failed to account for his finding that her severe impairments 7 resulted in moderate deficiencies in concentration, persistence, 8 and pace. (Joint Stip. at 5-6.) 9 to the VE. (Joint Stip. at 7.) In particular, Plaintiff claims that the ALJ s determination that Plaintiff 10 has 11 maintaining concentration, persistence, or pace were part of the 12 ALJ s findings at the residual functional capacity assessment 13 stage. Plaintiff goes on to argue that, as such, her moderate 14 difficulties had to be propounded to the VE in those exact terms. 15 (AR at 5-6.) In other words, Plaintiff argues that the VE should 16 have been asked to assume a person that had those two moderate 17 deficiencies and was limited to simple, routine tasks and no work 18 requiring more than minimal contact with the public. (See Joint 19 Stip. at 5.) 20 moderate difficulties in both social functioning and Plaintiff s argument is unpersuasive because it conflates the 21 ALJ s findings at steps two through five of the sequential 22 analysis.1 The ALJ s determination that Plaintiff suffers from 23 moderate difficulties in social functioning and concentration, 24 1 25 26 27 28 The five steps are as follows: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant s impairment is severe ; (3) whether the impairment meets or equals one of the listings in 20 C.F.R. § 404, Subpart P, Appendix 1; (4) whether the claimant is able to return to past relevant work; and (5) whether the claimant can do other types of work. 20 C.F.R. § 404.1520(a)(4). 4 1 persistence, or pace was part of the ALJ s analysis of the severity 2 of 3 Plaintiff s severe impairments were presumptively disabling at step 4 three. See SSR 96-8p, 1996 WL 374184, *4 (S.S.A. 1996). The ALJ was 5 then required to translate these broadly phrased limitations into 6 vocational limitations affecting Plaintiff s specific residual 7 functional capacity at step five. See e.g., Stubbs-Danielson v. 8 Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) ( The ALJ translated 9 [plaintiff s] condition, including pace and mental limitations, 10 Plaintiff s impairment at step two, and whether or not into... simple tasks . ). 11 In other words, at steps two and three, the ALJ determined 12 Plaintiff has the aforementioned moderate limitations. (AR at 13- 13 16.) At step five, the ALJ translated those limitations into the 14 hypothetical propounded to the vocational expert: Plaintiff s 15 moderate difficulty in social functioning was translated into a 16 limitation to a work environment not requiring more than minimal 17 contact 18 difficulty in concentration, persistence or pace was translated 19 into a limitation to work involving simple, routine tasks. (Id.) 20 At its core, Plaintiff s argument is that simple, routine tasks 21 is not an accurate translation of her moderate difficulties with 22 concentration, persistence, and pace.2 Plaintiff argues that this 23 inadequate 24 hypothetical. 25 A with the public. translation hypothetical posed (AR at resulted to a 16.) in VE Plaintiff s a must legally contain moderate erroneous all of the 26 27 2 28 Plaintiff does not contend that her difficulties in social functioning were inadequately described to the VE. 5 1 limitations of a particular claimant. 20 C.F.R. § 404.1545; Bray v. 2 Comm r of Soc. Serv., 554 F.3d 1219, 1228 (9th Cir. 2009); Delorme 3 v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991). If the hypothetical 4 fails to reflect all of the claimant s limitations, the VE s 5 testimony cannot support a finding that the claimant could perform 6 jobs in the national economy. Id. However, the ALJ need only 7 include in the hypothetical those limitations that the ALJ finds 8 credible and that are supported by substantial evidence in the 9 record. Osenbrook v. Apfel, 240 F.3d 1157, 1164-65 (9th Cir. 2001). 10 In the Ninth Circuit, An ALJ s assessment of a claimant 11 adequately 12 persistence, or pace where the assessment is consistent with 13 restrictions 14 Danielson, 15 describing claimant as capable of performing simple tasks despite 16 her slow pace); accord, Howard v. Massanari, 255 F.3d 577, 582 (8th 17 Cir. 18 concerning someone who is capable of doing simple, repetitive, 19 routine tasks adequately captures [plaintiff] s deficiencies in 20 concentration, 21 hypothetical describing Plaintiff as capable of performing simple, 22 routine tasks is consistent with the medical evidence in the 23 record, the ALJ s hypothetical adequately captured Plaintiff s 24 moderate difficulties in concentration, consistency, and pace. 2001) captures restrictions identified 539 F.3d ( Based at on in the 1174-75 this persistence, related medical the pace. ). concentration, testimony. (affirming record, or to ALJ s hypothetical ALJ s Thus, Stubbs- if hypothetical the ALJ s 25 In Plaintiff s case, the medical evidence is consistent with 26 the ALJ s hypothetical describing her as capable of performing 27 simple, routine tasks. Dr. Mallare, a state agency reviewing 28 physician considered Plaintiff s 6 moderate deficiencies in 1 concentration, persistence, or pace and concluded that Plaintiff 2 has adequate memory, understanding, and concentration to perform 3 simple repetitive tasks with minimal social contact. (AR at 176.) 4 Because this evidence is consistent with the medical evidence as a 5 whole, it provides substantial evidence supporting the ALJ s RFC 6 assessment. See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 7 1995). Similarly, in both Stubbs-Danielson and Howard, the residual 8 functional 9 physicians was a key factor in concluding that the ALJ adequately 10 translated the claimants moderate difficulties into a legally 11 sound hypothetical. 12 capacity assessment of non-examining state agency The state agency examining physician determined that Plaintiff 13 could 14 instructions 15 attention and concentration. (AR at 163-65.) Further, Plaintiff s 16 physician 17 concentration and task completion as not greatly affected. (AR at 18 198.) For these reasons, Plaintiff s medical records indicate that 19 the ALJ s hypothetical adequately captured Plaintiff s moderate 20 deficiencies in concentration, persistence, or pace. See Stubbs- 21 Danielson, 539 F.3d at 1174; Sabin v. Astrue, 2009 WL 2013526, at 22 *2 (9th Cir. June 12, 2009). Therefore, the ALJ properly relied 23 upon the VE s opinion, and the conclusion that Plaintiff is not 24 disabled is supported by substantial evidence in the record. 25 // 26 // 27 // 28 // understand, at remember, without the and difficulty, Inglewood carry despite Medical 7 out short, mildly Clinic simplistic diminished described her 1 2 3 IV. Conclusion For the reasons stated above, the decision of the Commissioner is affirmed. 4 5 Dated: October 27, 2009 6 7 ______________________________ Marc L. Goldman United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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