Imelda Burciaga v. Michael J. Astrue, No. 2:2010cv02207 - Document 17 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman. The decision of the Commissioner is affirmed. (db)
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Imelda Burciaga v. Michael J. Astrue Doc. 17 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 WESTERN DIVISION 9 10 IMELDA BURCIAGA, 11 Plaintiff, 12 13 14 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 10-2207-MLG MEMORANDUM OPINION AND ORDER 17 18 Plaintiff Imelda Burciaga seeks judicial review of the Social 19 Security Commissioner’s denial of her application for Disability 20 Insurance benefits (“DIB”) and Supplemental Security Income (“SSI”) 21 benefits. For the reasons stated below, the decision of the 22 Commissioner 23 prejudice. is affirmed and the action is dismissed with 24 25 I. Facts and Procedural Background 26 Plaintiff was born on May 13, 1955. She has a sixth grade 27 education and has relevant work experience as a sewing machine 28 operator. (Administrative Record (“AR”) 27, 28, 104, 116.) 1 Dockets.Justia.com 1 Plaintiff filed an application for SSI and DIB on April 19, 2007, 2 alleging disability as of July 20, 2000, due to hypertension and 3 diabetes mellitus. (AR 17, 42.) 4 Plaintiff’s application was denied initially and upon 5 reconsideration. (AR 47-56.) An administrative hearing was held on 6 April 21, 2008, before Administrative Law Judge (“ALJ”) Ariel L. 7 Sotolongo. Plaintiff, represented by an attorney, testified, as did 8 a vocational expert (“VE”). (AR 25-41.) 9 ALJ Sotolongo issued an unfavorable decision on September 23, 10 2008. (AR 17-22.) The ALJ found that Plaintiff suffered from the 11 following severe impairments: morbid obesity, diabetes mellitus and 12 hypothyroidism. (AR 19.) The ALJ further found that Plaintiff’s 13 impairments did not meet the requirements of any listed impairment 14 found in 20 C.F.R. Part 404, Subpart P, Appendix 1. (AR 20.) The 15 ALJ 16 (“RFC”) was as follows: determined that Plaintiff’s residual functional capacity 17 The claimant can lift and/or carry up to 20 pounds 18 occasionally and up to 10 pounds frequently; can stand 19 and/or walk for four hours out of an eight-hour workday; 20 and can sit for four hours out of an eight-hour workday. 21 The claimant can frequently push and/or pull with the 22 lower extremities. The claimant’s residual functional 23 capacity is consistent with a narrowed range of light 24 exertion. 25 (AR 26 determined that Plaintiff was capable of performing her past 27 relevant work as a sewing machine operator and overlock sewing 28 machine operator. (Id.) The ALJ concluded that Plaintiff was not 20-21.) Relying upon the VE’s 2 testimony, the ALJ also 1 disabled as defined in the Social Security Act. (AR 21.) 2 The Appeals Council denied review on January 29, 2010. (AR 1- 3 3.) Plaintiff then timely commenced this action, and on October 26, 4 2010, the parties filed a joint stipulation (“Joint Stp.”) of 5 disputed facts and issues. Plaintiff contends that the ALJ erred in 6 finding that Plaintiff was capable of performing her past work. 7 (Joint Stp. 3.) Defendant contends that Plaintiff actually raises 8 three separate issues: (1) the requirements of Plaintiff’s past 9 relevant work exceed the RFC assessment; (2) Plaintiff was entitled 10 to a finding of disability at Step Four based upon the Medical- 11 Vocational 12 Plaintiff’s 13 impairment and included associated restrictions. (Joint Stp. 6.) 14 The Court agrees with Defendant’s characterization of the issues 15 and will therefore discuss each of these issues separately. Guidelines; borderline and (3) the intellectual ALJ should have functioning as included a severe 16 Plaintiff requests that the Court reverse and order an award 17 of benefits or, in the alternative, remand for further proceedings. 18 (Joint Stp. 17.) The Commissioner requests that the ALJ’s decision 19 be affirmed. (Joint Stp. 18.) 20 21 22 II. Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 23 Commissioner’s 24 decision must be upheld unless “the ALJ’s findings are based on 25 legal error or are not supported by substantial evidence in the 26 record as a whole.” Tackett v. Apfel, 180 F.3d 1094 (9th Cir. 27 1999); 28 Substantial evidence means more than a scintilla, but less than a Parra decision v. Astrue, to deny 481 benefits. F.3d 3 742, 746 The Commissioner’s (9th Cir. 2007). 1 preponderance; it is evidence that a reasonable person might accept 2 as adequate to support a conclusion. Lingenfelter v. Astrue, 504 3 F.3d 1028, 1035 (9th Cir. 2007)(citing Robbins v. Soc. Sec. Admin., 4 466 5 substantial evidence supports a finding, the reviewing court “must 6 review the administrative record as a whole, weighing both the 7 evidence that supports and the evidence that detracts from the 8 Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 720 9 (9th Cir. 1996). “If the F.3d 880, 882 (9th Cir. 2006)). evidence can To support determine either whether affirming 10 or reversing the ALJ’s conclusion,” the court “may not substitute 11 its judgment for that of the ALJ.” Robbins, 466 F.3d at 882. 12 13 14 15 III. Discussion A. The ALJ Properly Assessed Plaintiff’s RFC and Determined That She Could Perform Her Past Relevant Work 16 Plaintiff claims that the ALJ improperly determined that she 17 was capable of performing her past relevant work as a sewing 18 machine operator. (Joint Stp. 4.) Plaintiff argues that a sewing 19 machine operator must be able to sit for at least six hours per day 20 and must constantly operate foot controls. (Joint Stp. 4.) Because 21 the ALJ found that Plaintiff could only sit for four hours out of 22 an eight-hour workday and because she was limited to frequent 23 pushing and pulling with the lower extremities, the requirements of 24 Plaintiff’s past relevant work exceed the ALJ’s RFC assessment, and 25 therefore the ALJ erred in finding she was capable of performing 26 her past relevant work. (Joint Stp. 4.) 27 Plaintiff “bears the initial burden of establishing disability 28 by showing that a physical or mental impairment prevents [her] from 4 1 engaging in any of [her] previous occupations.” Allen v. Secretary 2 of Health & Human Serv., 726 F.2d 1470, 1472 (9th Cir. 1984). 3 Moreover, it is Plaintiff’s burden to prove that she cannot return 4 to her former type of work, not just to her former job. Villa v. 5 Heckler, 797 F.2d 794, 798 (9th Cir. 1986). A claimant is not 6 disabled if she can perform the duties of her past relevant work. 7 See 20 C.F.R. § 404.1520(f). 8 9 Plaintiff has failed to produce any evidence to show that she is unable to perform her past relevant work. Her arguments 10 regarding an inability to perform the requirements of her past work 11 are conclusory and unsupported by the medical record. 12 Further, the ALJ’s findings under step four of the sequential 13 evaluation process, as well as other evidence in the record, 14 support the determination that Plaintiff is capable of performing 15 her past relevant work. The hypothetical that the ALJ posed to the 16 VE properly incorporated the relevant medical evidence in the 17 record as well as Plaintiff’s past relevant work as a sewing 18 machine operator. (AR 36, 39.) Based upon this hypothetical, the VE 19 testified that Plaintiff could perform her past relevant work, even 20 if she were limited to no more than four out of eight hours for 21 standing and walking and to at least frequent pushing and pulling 22 with the lower extremities. (AR 36, 39.) The ALJ was entitled to 23 rely 24 determination. (AR 21-22.) See 20 C.F.R. § 416.960(b)(2) (ALJ may 25 rely on a vocational expert’s “expertise and knowledge concerning 26 the physical and mental demands of a claimant’s past relevant work, 27 either as the claimant actually performed it or as generally 28 performed”). on the vocational expert 5 in reaching his disability 1 In addition, the ALJ appropriately relied upon the medical 2 evidence in the record in determining that Plaintiff retained the 3 RFC to sit for four hours out of an eight-hour day and to 4 frequently push and/or pull with the lower extremities. (AR 20-21.) 5 Plaintiff argues that a knee impairment would prevent her from 6 pushing or pulling with her legs to the extent required to perform 7 her past work. However, there is no medical evidence in the record 8 to support Plaintiff’s claim of constant knee pain. As noted by the 9 ALJ, “in over 200 pages of treating records there is only one 10 entry, in 2006, that states ‘occasional pain in the knees,’ and 11 there is no evidence of any diagnosis or treatment for this 12 condition.” (AR 20.) Further, the ALJ properly relied upon the 13 opinion of the consultative examining physician, Dr. Bloom, who 14 found that, while Plaintiff had some “crepitation present in the 15 right knee,” her 16 evidence of any other abnormalities in her knees. (AR 260.) gait was “essentially normal” and there was no 17 The ALJ properly relied upon the VE’s opinion, as well as the 18 medical evidence in the record, in determining that Plaintiff was 19 capable of performing her past relevant work, and the decision is 20 supported by substantial evidence in the record. Therefore, no 21 relief is warranted on this claim of error. 22 B. 23 24 Plaintiff Is Not Entitled to a Finding of Disability Based Upon the Grids Plaintiff next contends that she is entitled to a finding of 25 disability 26 “Grids”), at 20 C.F.R., Part 404, Subpart P, Appendix 2, § 202.01. 27 (Joint Stp. 4, 5.) 28 based upon the Medical-Vocational Guidelines (the Once a claimant has demonstrated the existence of a severe 6 1 impairment that precludes her from doing past work, the burden 2 shifts 3 significant number of jobs in the national economy that the 4 claimant can perform despite her impairment. Burkhart v. Bowen, 856 5 F.2d 1335, 1340 (9th Cir. 1988). The Commissioner may satisfy this 6 burden by: (1) taking the testimony of a vocational expert or (2) 7 applying the grids at 20 C.F.R., Part 404, Subpart P, Appendix 2. 8 Id. 9 involve substantially uniform levels of impairment.” Desrosiers v. 10 Sec’y of Health & Human Servs., 846 F.2d 573, 578 (9th Cir. 1988) 11 (Pregerson, J., concurring). The grids categorize jobs by three 12 physical-exertional 13 capacity limited to sedentary work,” “[m]aximum sustained work 14 capacity limited to light work,” and “[m]aximum sustained work 15 capacity limited to medium work.” Tackett v. Apfel, 180 F.3d 1094, 16 1101 (9th Cir. 1999). These exertional levels are further divided 17 by a claimant’s age, education, and work experience. Id. The grids 18 direct a finding of “disabled” or “not disabled” depending on a 19 claimant’s particular combination of factors. Id. to the Commissioner to demonstrate that there are a The grids provide a system “for disposing of cases that requirements: “[m]aximum sustained work 20 At the administrative hearing, the ALJ commented that, if 21 Plaintiff had a “significant pathology of the knees that ... would 22 preclude her use of the pedals in [sic] a frequent or constant 23 basis,” then she would likely be found disabled based upon the 24 Grids. (AR 39.) However, as discussed above, the ALJ found that 25 Plaintiff did not have any significant impairment of the knees, 26 based upon a lack of any medical evidence in the record and based 27 upon the consultative examining physician’s findings. (AR 20.) The 28 ALJ even left the record open to allow Plaintiff to submit post7 1 hearing medical records regarding any impairment of her knees. (AR 2 39-40.) As noted by the ALJ, the medical records that Plaintiff 3 submitted after the hearing provided no evidence of any knee 4 impairment, nor any diagnosis or treatment of a knee condition. (AR 5 20. 6 Because the ALJ properly determined that Plaintiff was able to 7 perform her past relevant work as a sewing machine operator, the 8 Grids were inapplicable to Plaintiff’s claim, and therefore would 9 not mandate a finding of disability. Accordingly, Plaintiff is not 10 entitled to relief on this claim. 11 C. Plaintiff Has Failed to Establish That She Has a Severe 12 Mental 13 Performing Her Past Relevant Work 14 Impairment Or That It Precludes Her From Plaintiff contends that the ALJ erred in failing to find that 15 her 16 impairment at step two of the sequential evaluation process and in 17 failing to include this mental impairment in the hypothetical to 18 the VE. (Joint Stp. 4-5.) Plaintiff also argues that, because she 19 was diagnosed with an I.Q. between 70-79, which is in the bottom 20 10% of the population, she cannot perform her past work as a sewing 21 machine operator because the jobs identified by the VE require an 22 intellectual ability above the 10th percentile. (Id.) borderline intellectual functioning was a severe mental 23 Plaintiff has failed to show that she has a severe mental 24 impairment. A claimant for disability benefits has the burden of 25 producing evidence to demonstrate that he or she was disabled 26 within the relevant time period. Johnson v. Shalala, 60 F.3d 1428, 27 1432 (9th Cir. 1995). At step two, the Commissioner considers if a 28 claimant has an “impairment or combination of impairments which 8 1 significantly limits [her] physical or mental ability to do basic 2 work activities.” 20 C.F.R. 404.1520(c). This is referred to as the 3 “severity” requirement and does not involve consideration of the 4 claimant’s 5 404.1520(c); see 42 U.S.C. § 1382c(a)(3)(G). “An impairment or 6 combination of impairments can be found ‘not severe’ only if the 7 evidence establishes a slight abnormality that has ‘no more than a 8 minimal effect on an individual’s ability to work.’” Smolen v. 9 Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citations omitted); see 10 age, education, or work experience. 20 C.F.R. § also 20 C.F.R. § 404.1521(a). 11 Here, Plaintiff has not provided any medical evidence to show 12 that her mental impairment “significantly limits her ability to do 13 basic work activities.” Webb v. Barnhart, 433 F.3d 683, 686 (9th 14 Cir. 2005). Although the examining consultative psychologist, Dr. 15 Roger 16 functioning, he concluded that Plaintiff’s impairment did not limit 17 her ability to perform work related activities: “[Plaintiff’s] 18 problems are essentially physical in nature. There would be no 19 objective 20 disorder. Any symptoms and complaints of a psychiatric nature are 21 most likely transient, not exceeding a slight degree, and in 22 response to fluctuations in her physical condition. Therefore, 23 there would be no psychiatric functional limitations.” (AR 237.) Izzi, diagnosed evidence to Plaintiff support with the borderline presence of intellectual a psychiatric 24 Further, Dr. Izzi noted that, by Plaintiff’s own report, the 25 only reason that she stopped working was because the company she 26 worked for had closed, and if it had not closed, she would still be 27 working. (Id.) Plaintiff also stated that she had been actively 28 looking for work, and when asked why she currently could not work, 9 1 she reported that she could not find a job. (Id.) 2 In addition, the reviewing state physician, Dr. Dudley, found 3 that Plaintiff’s borderline intellectual functioning was not a 4 severe mental impairment and that she had no functional limitations 5 as a result of her borderline intellectual functioning. (AR 269- 6 79.) The ALJ specifically cited Dr. Izzi’s and Dr. Dudley’s reports 7 in 8 impairment at step two of the sequential evaluation. (AR 20.) 9 Accordingly, because there was no medical evidence in the record to 10 show that Plaintiff’s borderline intellectual functioning prevented 11 her from performing any work related activities, the ALJ properly 12 determined that Plaintiff’s mental impairment was not severe. 13 Therefore, the ALJ was not required to include Plaintiff’s mental 14 impairment in the hypothetical to the VE. concluding that Plaintiff did not have a severe mental 15 Plaintiff also argues that her I.Q. of 70-79, which is below 16 the bottom 10% of the population, prevents her from performing her 17 past relevant work as a sewing machine operator because the jobs 18 identified by the VE require an intellectual ability above the 10th 19 percentile. However, as discussed in detail above, although Dr. 20 Izzi diagnosed Plaintiff with borderline intellectual functioning, 21 he also found that she had no functional limitations that would 22 preclude her from performing any work related activities. (AR 237.) 23 The mere fact that Plaintiff has an I.Q. between 70 and 79, does 24 not, 25 impairment. In addition, Plaintiff reported that the only reason 26 that she was not currently working was because the company for 27 which she was working had closed, not because of an inability to 28 perform her work due to a mental impairment. (Id.) Further, the without more, establish that 10 she has a severe mental 1 fact that Plaintiff was able to work for many years as a sewing 2 machine operator despite her borderline intellectual functioning 3 undermines her contention that she cannot perform her past relevant 4 work. Therefore, Plaintiff is not entitled to relief on this claim. 5 6 7 8 IV. Conclusion For the reasons stated above, the decision of the Commissioner is affirmed. 9 10 Dated: November 2, 2010 11 12 ______________________________ Marc L. Goldman United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11
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