Catherine A. Bordbar v. Michael J. Astrue, No. 2:2010cv02095 - Document 16 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton, The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. (SEE ORDER FOR FURTHER DETAILS) (lmh)
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Catherine A. Bordbar v. Michael J. Astrue Doc. 16 1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 CATHERINE A. BORDBAR, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 10-02095-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff’s application for 20 disability benefits. 21 consented that the case may be handled by the Magistrate Judge. 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the record before 24 the Commissioner. 25 (“JS”), and the Commissioner has filed the certified Administrative 26 Record (“AR”). Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the Joint Stipulation 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge (“ALJ”) properly Dockets.Justia.com 1 2 considered the testimony of the vocational expert; and 2. Whether the ALJ properly considered the significant erosion 3 4 of the vocational base. (JS at 4.) 5 6 This Memorandum Opinion will constitute the Court’s findings of 7 fact and conclusions of law. After reviewing the matter, the Court 8 concludes that the decision of the Commissioner must be affirmed. 9 10 I 11 THE ALJ DID NOT ERR AT STEP FIVE OF THE SEQUENTIAL EVALUATION 12 PROCESS IN DETERMINING THAT PLAINTIFF COULD PERFORM IDENTIFIED JOBS 13 14 A. Introduction. 15 After having her applications for disability insurance benefits 16 (“DIB”) 17 administratively, 18 proceeded to a hearing before an ALJ on July 15, 2009. (AR 24-53.) 19 that hearing, testimony was taken from a vocational expert (“VE”). 20 Thereafter, the ALJ issued an unfavorable decision (AR 14-23), the 21 Appeals Council denied review (AR 7-9), and this lawsuit followed. 22 and supplemental Plaintiff security Catherine income Ann (“SSI”) Bordbar denied (“Plaintiff”) At The ALJ utilized the well-known five-step sequential evaluation 23 process. 20 C.F.R. §404.1520; §416.920. 24 Plaintiff’s residual functional capacity (“RFC”) which, in pertinent 25 part, 26 production 27 coworkers and the public” (AR 18), the ALJ agreed with the testimony 28 of the VE at Step Five that Plaintiff could perform the representative limited Plaintiff quotas and to only “1-2 step occasional 2 Based on a determination of instruction contact with jobs with no supervisors, 1 occupations of mail sorter (Dictionary of Occupational Titles [“DOT”] 2 209.687-026), laundry sorter (DOT 361.687-014), and thread cutter (DOT 3 789.684-050). (AR 22.) 4 Five conclusion that constitutes the basis for her first issue. 5 Specifically, Plaintiff asserts that the Reasoning Level required for 6 these jobs pursuant to the DOT exceeds the Reasoning Level assessed by 7 the ALJ. 8 9 It is Plaintiff’s disagreement with this Step The DOT, at Appendix C III, sets out a tripartite concept called “General Educational Development (“GED”).” GED “embraces those 10 aspects of education (formal and informal) which are required of the 11 worker for satisfactory job performance. 12 GED scale is denominated “Reasoning Development.” 13 are six levels of reasoning development. 14 decision, Level One requires the ability to “apply common sense 15 understanding to carry out simple one or two-step instructions.” 16 Reasoning Level Two requires the ability to “apply common sense 17 understanding to carry out detailed but uninvolved written or oral 18 instructions.” 19 “apply common sense understanding to carry out instructions furnished 20 in written, oral, or diagrammatic form. 21 several concrete variables in or from standardized situations.” 22 One of the divisions of the Within this scale As pertinent to this Reasoning Level Three requires that the individual Deal with problems involving Plaintiff reasons that in formulating an RFC which limits her to 23 “1-2 step 24 occasional contact with supervisors, coworkers and the public,” the 25 ALJ was assessing that Plaintiff has a maximum reasoning level of 1, 26 which, 27 understanding to carry out simple one or two-step instructions.” as instruction noted, jobs requires with the no production ability 28 3 to quotas “apply and common only sense 1 B. Analysis. 2 Plaintiff received a complete psychiatric evaluation (“CE”) at 3 the request of the Department of Social Services on March 31, 2007, 4 from Dr. Simonian (AR 218-223). 5 part, that Plaintiff is able to understand, remember and carry out 6 simple one or two-step job instructions, and is also able to complete 7 detailed and complex instructions. (AR 222.) The State Agency medical 8 consultant, on May 9, 2007, completed a Psychiatric Review Technique 9 Form, which indicates that Plaintiff would have no limitations in 10 performing activities of daily living and in her ability to maintain 11 concentration, persistence or pace; no episodes of decompensation of 12 extended duration, but would have moderate limitations in her ability 13 to maintain social functioning. (AR 224-34.) 14 the State Agency medical consultant completed a “Mental Residual 15 Functional Capacity” assessment, and assessed moderate limitations in 16 the following areas: ability to work in coordination with others 17 without being distracted, interact appropriately with the public, 18 accept instructions and respond appropriately to criticism, and get 19 along with coworkers. 20 assessed. 21 substantial gainful activity with limited contact with others. (AR 22 235-37.) Dr. Simonian assessed, in relevant Also, on the same day, Otherwise, no significant limitations were The consultant concluded that Plaintiff could perform 23 Significantly, the ALJ found that although Plaintiff had not 24 received any recent treatment for depression, “the opinions of the 25 [psychiatric] consultative examiner and the State Agency medical 26 consultant are reasonable.” (AR 21.) 27 these assessments, the ALJ adopted the RFC, including the mental 28 component, previously noted in this decision. 4 Based on her agreement with 1 Plaintiff’s past relevant work (“PRW”) was as a data entry clerk 2 and telephone operator. These are identified as SVP 3-4 level (semi- 3 skilled) with a Reasoning Level of 3. (AR 48-50, 117-123, 128-136, 4 140.) 5 common sense understanding to carry out instructions furnished in 6 written, oral, or diagrammatic form. 7 several 8 Plaintiff claims that the ALJ assessed an RFC which limited her to 9 Reasoning Level 1 types of jobs. As noted, a Reasoning Level of 3 requires the ability to “apply concrete variables in or Deal with problems involving from standardized situations.” Effectively, Plaintiff equates the 10 RFC of “1-2 step simple instruction kinds of jobs with no production 11 quotas” with the language of Reasoning Level 1 which requires the 12 ability to “apply common sense understanding to carry out simple one 13 or two-step instructions.” 14 comparing the literal words used in the descriptions in the DOT with 15 the words utilized by the ALJ in assessing Plaintiff’s RFC. Plaintiff 16 concedes that word similarity is not the determinative factor, citing 17 Meissl v. Barnhart, 403 F.Supp.2d 981, 984-85 (C.D. Cal. 2005). 18 There, the Court determined that where plaintiff was found capable of 19 performing simple tasks at a routine pace, there was no error at Step 20 Five in identifying a job which required a Reasoning Level of 2. 21 Magistrate Judge Larson rejected Plaintiff’s contention that the ALJ 22 had erred in identifying at Step Five a Reasoning Level 2 job because 23 that reasoning level uses the word “detailed.” 24 Reasoning Level 2, while utilizing the word “detailed,” also modifies 25 this by the word “uninvolved.” 26 which would compare the two scales “based on the serendipity that they 27 happen to employ the same word choice, ...” (Id. at 984.) 28 observed that Reasoning Level 1 “appl[ies] to the most elementary of The matter is not resolvable, however, by Then The Court noted that Thus, the Court rejected an analysis 5 The Court 1 occupations; only the slightest bit of rote reasoning being required.” 2 (Id.) 3 cows as they come off a truck; pasting labels on filled whiskey 4 bottles; and tapping the lid of cans with a stick. 5 observed, “someone able to perform simple, repetitive instructions 6 indicates a level of reasoning sophistication above those listed.” 7 (Id.) 8 holding of other Courts, citing Hackett v. Barnhart, 395 F.3d 1168, 9 1176 (10th Cir. 2005) which reached a similar conclusion. (Id.) 10 Such jobs were identified in Meissl as, for example, counting As the Court The Court noted that this conclusion was consistent with the Other Courts in the Central District have issued opinions 11 consistent with Meissl. 12 1641341 13 “Plaintiff’s limitations to simple repetitive work are consistent with 14 a reasoning level of 2.” (Id. at *13.) 15 Astrue, 2010 WL 2652278 (C.D. Cal. 2010, the Court determined that an 16 RFC which allowed the individual to “understand and carry out simple 17 instructions, avoid ordinary hazards, and sustain concentration and 18 attention for simple repetitive tasks, but not complex tasks” was not 19 incompatible with jobs identified at Step Five which required Level 2 20 reasoning. 21 (C.D. Cal. For example, in Harris v. Astrue, 2010 WL 2010), Magistrate Judge Segal concluded, Similarly, in Wortman v. The ALJ’s decision did not identify a particular Reasoning Level 22 as being within Plaintiff’s ability. 23 reasonable inferences from the ALJ’s decision. 24 Bowen, 881 F.2d 747, 755 (9th Cir. 1989). 25 past relevant work required Reasoning Level 3, while the identified 26 jobs at Step Five only require Reasoning Level 2. 27 determined that Plaintiff has a depressive disorder as part of her 28 severe impairments, there is no indication in the record that she has 6 The Court must therefore make See Magallanes v. Here, as noted, Plaintiff’s Although the ALJ 1 organic impairments or cognitive deficits. (AR 38-39, 187, 191, 194, 2 218-223.) 3 perform detailed and complex instructions. (AR 222.) Her intelligence 4 and mental functioning is in the average range. (AR 20-21, 220-221.) 5 Other than having moderate limitations in certain areas related to 6 social functioning, Plaintiff has no limitations in her activities of 7 daily living, and in maintaining concentration, persistence and pace. 8 Consequently, it would not be a fair inference from the record that 9 the ALJ intended to assess Plaintiff as having a maximum Reasoning Indeed, the psychiatric CE concluded that she was able to 10 Level of 1. For all of these reasons, the Court concludes that the 11 ALJ did not err at Step Five of the sequential evaluation process. 12 The Court need not address Plaintiff’s discussion concerning the 13 applicability of the Medical-Vocational Guidelines (“Grids”) to the 14 one sedentary occupation identified by the VE at the hearing, as the 15 ALJ did not rely upon identification of that occupation in her Step 16 Five conclusion. 17 As to Plaintiff’s second issue, the Court determines that the ALJ 18 properly considered the testimony of the VE at Step Five of the 19 sequential evaluation process. 20 her exertional limitations do not fall between two Grid Levels. 21 because of her non-exertional limitations could she not perform a full 22 range of light work (AR 18), and the ALJ did consider the Grids and 23 the two Grid Rules which apply to differing age groups for individuals 24 performing light work. (AR 22-23.) 25 limitations that the ALJ took the testimony of the VE. (AR 48-53.) 26 Plaintiff’s assertion of a production quota or limited public contact 27 are both non-exertional limitations which are not contemplated by the 28 Grids, therefore making a VE necessary. Contrary to Plaintiff’s contention, 7 Only It was due to the non-exertional The VE did identify several 1 jobs within the light exertional framework that Plaintiff could 2 perform which were consistent with her non-exertional limitations. 3 The case of Moore v. Apfel, 216 F.3d 864 (9th Cir. 2000) is not 4 applicable to Plaintiff’s case. 5 error with regard to the second issue identified by Plaintiff. 6 7 8 For this reason, the Court finds no The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 9 10 11 DATED: February 1, 2011 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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