Joe Harris v. Michel J. Astrue, No. 2:2010cv00798 - Document 18 (C.D. Cal. 2010)
Court Description: OPINION AND ORDER by Magistrate Judge Rosalyn M. Chapman; IT IS ORDERED that: (1) plaintiffs request for relief is denied and defendants request for relief is granted; and (2) the Commissioners decision is reversed, and the action is remanded to the Social Security Administration for further proceedings consistent with this Opinion and Order, pursuant to sentence four of 42 U.S.C. § 405(g), and Judgment shall be entered accordingly. See order for details. (jy)
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Joe Harris v. Michel J. Astrue Doc. 18 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 JOE HARRIS, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) No. CV 10-0798-RC OPINION AND ORDER 17 18 Plaintiff Joe Harris filed a complaint on February 5, 2010, 19 seeking review of the Commissioner’s decision denying his application 20 for disability benefits. 21 answer to the complaint, and the parties filed a joint stipulation on 22 September 9, 2010. On July 9, 2010, the Commissioner filed an 23 24 BACKGROUND 25 On April 2, 2007, plaintiff, who was born on November 5, 1952, 26 applied for disability benefits under the Supplemental Security Income 27 program (“SSI”) of Title XVI of the Act, claiming an inability to work 28 // Dockets.Justia.com 1 since June 1, 2003,1 due to breathing problems, headaches, high blood 2 pressure, and left leg problems. 3 plaintiff’s application was initially denied on July 20, 2007. 4 66-69. 5 was held before Administrative Law Judge Stuart M. Kaye (“the ALJ”) on 6 May 21, 2008. 7 a decision finding plaintiff is not disabled. 8 plaintiff appealed this decision to the Appeals Council, which denied 9 review on November 19, 2009. A.R. 14, 24-25, 130. The A.R. The plaintiff then requested an administrative hearing, which A.R. 26-51, 71. On September 22, 2008, the ALJ issued A.R. 11-23. The A.R. 4-10. 10 11 DISCUSSION 12 I 13 The Court, pursuant to 42 U.S.C. § 405(g), has the authority to 14 review the decision denying plaintiff disability benefits to determine 15 if his findings are supported by substantial evidence and whether the 16 Commissioner used the proper legal standards in reaching his decision. 17 Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009); Vernoff v. 18 Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). 19 20 The claimant is “disabled” for the purpose of receiving benefits 21 under the Act if he is unable to engage in any substantial gainful 22 activity due to an impairment which has lasted, or is expected to 23 last, for a continuous period of at least twelve months. 24 § 1382c(a)(3)(A); 20 C.F.R. § 416.905(a). 42 U.S.C. “The claimant bears the 25 26 27 28 1 On June 4, 2003, plaintiff previously applied for SSI benefits, and Administrative Law Judge Earl J. Watts denied his application on August 27, 2004, finding plaintiff was not disabled. A.R. 52-63. 2 1 burden of establishing a prima facie case of disability.” Roberts v. 2 Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 3 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996). 4 5 The Commissioner has promulgated regulations establishing a five- 6 step sequential evaluation process for the ALJ to follow in a 7 disability case. 8 must determine whether the claimant is currently engaged in 9 substantial gainful activity. 20 C.F.R. § 416.920. In the First Step, the ALJ 20 C.F.R. § 416.920(b). If not, in the 10 Second Step, the ALJ must determine whether the claimant has a severe 11 impairment or combination of impairments significantly limiting him 12 from performing basic work activities. 13 so, in the Third Step, the ALJ must determine whether the claimant has 14 an impairment or combination of impairments that meets or equals the 15 requirements of the Listing of Impairments (“Listing”), 20 C.F.R. § 16 404, Subpart P, App. 1. 17 Fourth Step, the ALJ must determine whether the claimant has 18 sufficient residual functional capacity despite the impairment or 19 various limitations to perform his past work. 20 If not, in Step Five, the burden shifts to the Commissioner to show 21 the claimant can perform other work that exists in significant numbers 22 in the national economy. 20 C.F.R. § 416.920(c). 20 C.F.R. § 416.920(d). If If not, in the 20 C.F.R. § 416.920(f). 20 C.F.R. § 416.920(g). 23 24 Applying the five-step sequential evaluation process, the ALJ 25 found plaintiff has not engaged in substantial gainful activity since 26 April 2, 2007, the application date. 27 plaintiff has the following severe impairments: 28 hypertension, joint pain and gastritis” (Step Two); however, he does 3 (Step One). The ALJ then found “asthma, 1 not have an impairment or combination of impairments that meets or 2 equals a listed impairment. 3 plaintiff has no past relevant work. 4 concluded plaintiff is able to perform a significant number of jobs in 5 the national economy; therefore, he is not disabled. (Step Three). The ALJ next determined (Step Four). Finally, the ALJ (Step Five). 6 7 II 8 9 A claimant’s residual functional capacity (“RFC”) is what he can still do despite his physical, mental, nonexertional, and other 10 limitations. Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); 11 see also Valentine v. Commissioner, Soc. Sec. Admin., 574 F.3d 685, 12 689 (9th Cir. 2009) (RFC is “a summary of what the claimant is capable 13 of doing (for example, how much weight he can lift).”). 14 found plaintiff has the RFC to perform medium work2 “except that the 15 [plaintiff] must be able to change position at will; climb, balance, 16 stoop, kneel, crouch and crawl occasionally; and avoid concentrated 17 exposure to fumes, odors, dusts, gases and poor ventilation.” 18 18. Here, the ALJ A.R. 19 20 At Step Five, the burden shifts to the Commissioner to show the 21 claimant can perform a significant number of jobs in the national 22 economy. 23 v. Astrue, 499 F.3d 1071, 1074-75 (9th Cir. 2007). 24 burden, the Commissioner “must ‘identify specific jobs existing in Bray v. Astrue, 554 F.3d 1219, 1222 (9th Cir. 2009); Hoopai To meet this 25 26 2 27 28 Under Social Security regulations, “[m]edium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds.” 20 C.F.R. § 416.967(c). 4 1 substantial numbers in the national economy that [the] claimant can 2 perform despite [his] identified limitations.’” 3 F.3d 1111, 1114 (9th Cir. 1999) (quoting Johnson v. Shalala, 60 F.3d 4 1428, 1432 (9th Cir. 1995)). 5 to meet this burden: “(1) by the testimony of a vocational expert, or 6 (2) by reference to the Medical Vocational Guidelines [“Grids”] at 20 7 C.F.R. pt. 404, subpt. P, app. 2.”3 8 1099 (9th Cir. 1999); Bray, 554 F.3d at 1223 n.4. 9 [the Grids] do not adequately take into account [a] claimant’s Meanel v. Apfel, 172 There are two ways for the Commissioner Tackett v. Apfel, 180 F.3d 1094, However, “[w]hen 10 abilities and limitations, the Grids are to be used only as a 11 framework, and a vocational expert must be consulted.” 12 Barnhart, 278 F.3d 947, 960 (9th Cir. 2002); Bray, 554 F.3d at 1223 13 n.4. Thomas v. 14 15 Hypothetical questions posed to a vocational expert must consider 16 all of the claimant’s limitations, Valentine, 574 F.3d at 690; Thomas, 17 278 F.3d at 956, and “[t]he ALJ’s depiction of the claimant’s 18 disability must be accurate, detailed, and supported by the medical 19 record.” 20 expert Susan Green the following hypothetical question: Tackett, 180 F.3d at 1101. Here, the ALJ asked vocational 21 22 23 24 25 26 27 28 3 The Grids are guidelines setting forth “the types and number of jobs that exist in the national economy for different kinds of claimants. Each rule defines a vocational profile and determines whether sufficient work exists in the national economy. These rules represent the [Commissioner’s] determination, arrived at by taking administrative notice of relevant information, that a given number of unskilled jobs exist in the national economy that can be performed by persons with each level of residual functional capacity.” Chavez v. Dep’t of Health & Human Servs., 103 F.3d 849, 851 (9th Cir. 1996) (citations omitted). 5 1 Let’s assume we have a hypothetical person who is 54 and 2 then becomes 55. So, we’re going to have two different 3 situations here. The first one is 54. 4 55, okay, who has a high school education and no past work, 5 who has no exertional limitations, in other words has no 6 limitation in his ability to lift, carry, stand, walk and 7 sit except that he requires the ability to change position 8 at his own volition. 9 needs to stand up, he could do so, and so on. . . . And the next one is In other words, if he’s sitting and he He has 10 no postural limitations, no manipulative limitations, no 11 visual limitations . . . , no communicative limitations. 12 would have to avoid concentrated exposure to fumes, odors, 13 dust, gases and poor ventilation. 14 would have no severe mental impairment. 15 hypothetical, is there any work in the local or national 16 economy that such a person could perform? He In addition to that, he Given such a 17 18 A.R. 48. The vocational expert responded that such an individual 19 could work as a cashier II, Dictionary of Occupational Titles (“DOT”) 20 no. 211.462-010,4 and an assembler, DOT no. 712.687-010, A.R. 48-49, 21 both of which are light work.5 U.S. Dep’t of Labor, Dictionary of 22 23 24 25 26 27 28 4 The DOT is the Commissioner’s primary source of reliable vocational information. Johnson, 60 F.3d at 1434 n.6; Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990). 5 Under Social Security regulations, “[l]ight work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling 6 1 Occupational Titles, 183, 708 (4th ed. 1991). Based on this 2 testimony, the ALJ found plaintiff can perform a significant number of 3 jobs in the national economy. A.R. 22. 4 5 The plaintiff contends, however, that the ALJ’s Step Five 6 determination is not supported by substantial evidence because the 7 vocational expert’s testimony supports the conclusion that plaintiff 8 is disabled as of November 5, 2007, when he turned 55 years old. 9 Specifically, plaintiff argues that since the vocational expert 10 identified only light work that plaintiff can perform in response to 11 the ALJ’s hypothetical question, plaintiff should be considered 12 disabled under Rule 202.04 of the Grids, 20 C.F.R. Pt. 404, Subpt. P, 13 App. 2, Rule 202.04.6 14 1157 (9th Cir. 1989) (“[W]here application of the grids directs a 15 finding of disability, that finding must be accepted by the 16 [Commissioner]. 17 results from a combination of exertional and nonexertional 18 limitations.”). 19 burden at Step Five, but argues a remand for further proceedings is 20 necessary because the vocational expert did not specifically address See also Cooper v. Sullivan, 880 F.2d 1152, That is so whether the impairment is exertional or The Commissioner acknowledges he has not carried his 21 22 23 24 25 26 27 28 of arm or leg controls. To be considered capable of performing a full or wide range of light work, [the claimant] must have the ability to do substantially all of these activities.” 20 C.F.R. § 416.967(b). 6 Rule 202.04 provides that an individual is disabled if that person is: of advanced age, which is 55 years old, 20 C.F.R. § 416.963(e); is a high school graduate or more, but whose degree does not provide for direct entry into skilled work; has prior unskilled work experience or no experience; and is able to perform light work. 7 1 whether plaintiff is able to perform the limited range of medium work 2 set forth in plaintiff’s RFC; rather, the vocational expert only 3 provided certain examples of work plaintiff could perform. 4 48 (“Given [the] hypothetical, is there any work in the local or 5 national economy that such a person could perform? . . . 6 give me an example?”). 7 vocational expert inferentially answered the question of whether 8 plaintiff could perform the limited range of medium work set forth in 9 plaintiff’s RFC when, in response to a question about whether See A.R. Can you The plaintiff disagrees, arguing the 10 plaintiff could perform sedentary work,7 the vocational expert 11 responded: 12 which requires someone to be seated predominantly six hours a day, if 13 he needs to alternate positions, there would be no sedentary work 14 available to him, only the light.” “I would say by nature of the definition of sedentary work A.R. 49. 15 16 The Commissioner is correct. Although Rule 202.04 provides that 17 an individual with plaintiff’s education and work experience who is 18 limited to light work is considered disabled as of his 55th birthday, 19 the record does not clearly show that Rule 202.04 applies to 20 7 21 22 23 24 25 26 27 28 “‘Sedentary work’ contemplates work that involves the ability to sit through most or all of an eight[-]hour day.” Tackett, 180 F.3d at 1103; see also Vertigan v. Halter, 260 F.3d 1044, 1052 (9th Cir. 2001) (“In a work environment requiring sedentary work, the Social Security Rules require necessary sitting as the ability to do such for six to eight hours a day.”); 20 C.F.R. § 416.967(a) (“Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.”). 8 1 plaintiff. 2 testimony only relates to plaintiff’s ability to do sedentary work – 3 not the RFC’s limited range of medium work. 4 challenge the ALJ’s RFC assessment that he can perform a limited range 5 of medium work, see Jt. Stip. at 4:3, and the ALJ’s hypothetical 6 question to the vocational expert encompassed that RFC, the vocational 7 expert should have discussed whether plaintiff can perform any medium 8 work in the national economy.8 9 respond to the ALJ’s hypothetical question, and the ALJ did not 10 As the vocational expert’s testimony makes clear, her further pursue the matter. Since plaintiff does not Unfortunately, she did not fully Therefore, a remand is required. 11 12 13 III When the Commissioner’s decision is not supported by substantial 14 evidence, the Court has authority to affirm, modify, or reverse the 15 Commissioner’s decision “with or without remanding the cause for 16 rehearing.” 17 1076 (9th Cir. 2002). 18 is appropriate if enhancement of the record would be useful.” 19 v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). 20 appropriate remedy so the ALJ may provide the vocational expert with a 21 hypothetical question accurately reflecting plaintiff’s RFC and 22 properly determining whether plaintiff is able to perform a 42 U.S.C. § 405(g); McCartey v. Massanari, 298 F.3d 1072, “Remand for further administrative proceedings Here, remand is the 23 24 25 26 27 28 8 Under the Act, an individual with plaintiff’s education and prior work experience who can perform the full range of medium work is not considered disabled upon reaching his 55th birthday. 20 C.F.R. Pt. 404, Subpt. P, App. 2, Rule 203.14. Since plaintiff cannot perform the full range of medium work, A.R. 18, without the testimony of a vocational expert, it is unclear whether plaintiff can perform any medium work in the national economy. 9 Benecke 1 significant number of jobs in the national economy – both before and 2 after his 55th birthday. 3 211 F.3d 1172, 1180 (9th Cir.), cert. denied, 531 U.S. 1038 (2000). Vasquez, 572 F.3d at 597; Harman v. Apfel, 4 5 ORDER 6 IT IS ORDERED that: (1) plaintiff’s request for relief is denied 7 and defendant’s request for relief is granted; and (2) the 8 Commissioner’s decision is reversed, and the action is remanded to the 9 Social Security Administration for further proceedings consistent with 10 this Opinion and Order, pursuant to sentence four of 42 U.S.C. 11 § 405(g), and Judgment shall be entered accordingly. 12 13 DATE: November 18, 2010 14 15 /S/ ROSALYN M. CHAPMAN ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE R&R-MDO\10-0798.mdo 11/18/10 16 17 18 19 20 21 22 23 24 25 26 27 28 10
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