Yolanda M. Campos v. Michael J. Astrue, No. 2:2010cv08603 - Document 19 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Yolanda M. Campos filed this action on January 13, 2011. Pursuant to 28U.S.C. § 636(c), the parties consented to proceed before the magistrate judge onJanuary 19 and 28, 2011. (Dkt. Nos. 7, 8.) On November 18, 2011, the partiesfiled a Joint Stipulation (JS) that addressed the disputed issues. The court has taken the matter under submission without oral argument.Having reviewed the entire file, the court affirms the decision of theCommissioner. (See Order for details.) (mp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 YOLANDA M. CAMPOS, 12 Plaintiff, 13 v. 14 15 16 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 17 18 ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 10-8603 AGR MEMORANDUM OPINION AND ORDER Yolanda M. Campos filed this action on January 13, 2011. Pursuant to 28 19 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge on 20 January 19 and 28, 2011. (Dkt. Nos. 7, 8.) On November 18, 2011, the parties 21 filed a Joint Stipulation ( JS ) that addressed the disputed issues. The court has 22 taken the matter under submission without oral argument. 23 24 25 26 27 28 Having reviewed the entire file, the court affirms the decision of the Commissioner. 1 I. 2 PROCEDURAL BACKGROUND 3 On or about May 1, 2008, Campos filed applications for disability insurance 4 benefits and supplemental security income benefits alleging an onset date of 5 February 14, 2004.1 AR 17. The applications were denied initially and upon 6 reconsideration. AR 17, 41, 43. Campos requested a hearing before an 7 Administrative Law Judge ( ALJ ). AR 57. On February 8, 2010, the ALJ 8 conducted a hearing at which Campos and a vocational expert testified. AR 23- 9 40. On February 19, 2010, the ALJ issued a decision denying benefits. AR 17- 10 22. On July 29, 2010, the Appeals Council denied the request for review. AR 4- 11 6. This action followed. 12 II. 13 STANDARD OF REVIEW 14 Pursuant to 42 U.S.C. § 405(g), this court reviews the Commissioner s 15 decision to deny benefits. The decision will be disturbed only if it is not supported 16 by substantial evidence, or if it is based upon the application of improper legal 17 standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. 18 Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 19 Substantial evidence means more than a mere scintilla but less than a 20 preponderance it is such relevant evidence that a reasonable mind might 21 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 22 determining whether substantial evidence exists to support the Commissioner s 23 decision, the court examines the administrative record as a whole, considering 24 adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the 25 26 27 28 1 The record contains various filing dates on or about May 1, 2008. See Administrative Record ( AR ) 17, 41, 43, 101, 107. Campos filed prior applications for disability insurance benefits and supplemental security income benefits on November 15, 2006, which were denied at the initial level and without appeal. AR 19. 2 1 evidence is susceptible to more than one rational interpretation, the court must 2 defer to the Commissioner s decision. Moncada, 60 F.3d at 523. 3 III. 4 DISCUSSION 5 A. 6 A person qualifies as disabled, and thereby eligible for such benefits, only 7 if his physical or mental impairment or impairments are of such severity that he is 8 not only unable to do his previous work but cannot, considering his age, 9 education, and work experience, engage in any other kind of substantial gainful 10 work which exists in the national economy. Barnhart v. Thomas, 540 U.S. 20, 11 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003). Disability 12 B. 13 The ALJ found that Campos has the severe impairment of seizures. AR 14 19. Campos has the residual functional capacity ( RFC ) to perform light work 15 with no balancing, no working at unprotected heights, and no working around 16 dangerous moving machinery. AR 21. She has mild restriction of activities of 17 daily living, mild difficulties in maintaining social functioning and mild difficulties in 18 concentration, persistence or pace. Id. She can perform simple, repetitive 19 tasks with limited contact with the general public. Id. She is unable to perform 20 her past relevant work, but there are jobs that exist in significant numbers in the 21 national economy that she can perform. AR 21-22. The ALJ s Findings 22 C. 23 Campos argues that the ALJ improperly applied the Medical-Vocational Reliance on the Grids 24 Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2 (the Grids ), to find her 25 not disabled. JS 5-7. 26 When a claimant has exertional and non-exertional limitations, the ALJ 27 must consult the grids first. Lounsburry v. Barnhart, 468 F.3d 1111, 1115 (9th 28 Cir. 2006). The ALJ can use the grids without vocational expert testimony when 3 1 a non-exertional limitation is alleged because the grids provide for the evaluation 2 of claimants asserting both exertional and non-exertional limitations. Hoopai v. 3 Astrue, 499 F.3d 1071, 1075 (9th Cir. 2007) (citation omitted). Vocational expert 4 testimony is required only when a non-exertional limitation is sufficiently severe 5 so as to significantly limit the range of work permitted by the claimant s exertional 6 limitations. Id. (citation and quotation marks omitted). When non-exertional 7 limitations do not limit significantly the range of work permitted by the claimant s 8 exertional limitations, use of the Grids is appropriate. Desrosiers v. Sec y of 9 Health & Human Servs., 846 F.2d 573, 577 (9th Cir. 1988). The ALJ found that Campos has the RFC to perform light work except that 10 11 her non-exertional limitations limit her to work involving simple, repetitive tasks 12 with limited contact with the general public, and no balancing, no working at 13 unprotected heights, and no working around dangerous moving machinery. AR 14 21. Applying the Grids, the ALJ further found there are jobs that exist in 15 significant numbers in the national economy that Campos can perform.2 AR 22. 16 He found Campos not disabled under the Grids. Campos does not directly address the applicable legal standards. She 17 18 appears to be arguing that application of the Grids was improper because: (1) 19 the ALJ failed to define limited public contact; (2) not all unskilled work 20 precludes the public; and (3) not all unskilled work is simple and repetitive. JS 21 12. 22 As an initial matter, the ALJ did not preclude Campos from all contact with 23 the public; thus, Campos argument that not all unskilled work precludes the 24 public is moot. Campos remaining arguments fail. 25 26 27 28 2 Although a vocational expert testified that a person with Campos RFC could perform other jobs, the ALJ did not rely on that portion of her testimony. AR 22, 36-38. 4 1 Limited public contact is consistent with unskilled light work. Light work 2 represents substantial work capability compatible with making a work adjustment 3 to substantial numbers of unskilled jobs and, thus, generally provides sufficient 4 occupational mobility even for severely impaired individuals who are not of 5 advanced age and have sufficient educational competencies for unskilled work. 6 20 C.F.R. Pt. 404, Subpt. P, App. 2, Rule 202.00(b). Unskilled work requires little 7 or no judgment to do simple duties that can be learned on the job or in a short 8 period of time and does not focus on working with people. 20 C.F.R. §§ 9 404.1568(a), 416.968(a). Even though the ALJ did not define limited contact 10 with the general public, the phrase is reasonably compatible with a job that does 11 not focus on working with people. 12 Campos argument that not all unskilled work is simple and repetitive also 13 fails. The ALJ need not demonstrate that Campos can do all unskilled jobs. 14 Rather, the ALJ need only provide evidence that other work exists in significant 15 numbers in the national economy that a claimant can do. Lounsburry, 468 F.3d 16 at 1114; see also 20 C.F.R. Pt. 404, Subpt. P, App. 2, Rule 202.00(a) 17 ( Approximately 1,600 separate sedentary and light unskilled occupations can be 18 identified in eight broad occupational categories, each occupation representing 19 numerous jobs in the national economy. ). 20 Further, to the extent that Campos contends that the restrictions regarding 21 balancing, unprotected heights, and dangerous machinery significantly limit her 22 range of work, the contention is unfounded. See Social Security Ruling3 ( SSR ) 23 85-15 ( A person with a seizure disorder who is restricted only from being on 24 unprotected elevations and near dangerous moving machinery is an example of 25 26 27 28 3 Social Security rulings do not have the force of law. Nevertheless, they constitute Social Security Administration interpretations of the statute it administers and of its own regulations, and are given deference unless they are plainly erroneous or inconsistent with the Act or regulations. Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989). 5 1 someone whose environmental restriction does not have a significant effect on 2 work that exist[s] at all exertional levels. ); see also SSR 96-9p (postural 3 limitations related to balancing do not erode the occupational base for a full range 4 of unskilled sedentary work). 5 Thus, because Campos non-exertional limitations do not significantly limit 6 the range of work permitted by her exertional limitation to light work, the ALJ 7 properly applied the Grids. See Desrosiers, 846 F.2d at 577. The ALJ did not 8 err. 9 10 D. Examining Psychologist Campos argues the ALJ erred in failing to include in his RFC the examining 11 psychologist s limitation that Campos is currently able to understand, remember 12 and carry out simple and repetitive instructions but in doing so she is slow. She 13 would have difficulty with pace in fast-paced types of positions. AR 259. In the 14 mental status examination, the psychologist, Dr. Riahinejad, found that Campos 15 showed evidence of psychomotor slowing. 4 AR 257. 16 The ALJ acknowledged Dr. Riahinejad s finding that Campos would have 17 difficulty with pace in fast-paced types of positions. AR 21. The ALJ then stated 18 that the state agency physicians concluded that the claimant could perform 19 simple, repetitive tasks. Id. The ALJ found that the conclusions of the 20 consultative examiner along with the conclusions of the medical consultants 21 were consistent with the objective findings and the evidence of record. Id. 22 Dr. Balson, a State Agency review psychiatrist, rated Campos degree of 23 limitation in maintaining concentration, persistence, or pace as moderate. AR 24 340. Dr. Balson found Campos was moderately limited in her ability to maintain 25 26 27 28 4 Campos points out that her intelligence scores were within the upper end of the mildly mentally retarded range of intellectual ability. AR 258. However, Dr. Riahinejad concluded that [t]his appears to be an underestimate. She complained of having a headache and vision problems which might have negatively affected her overall scores. Id. 6 1 attention and concentration for extended periods. AR 344. Dr. Balson agreed 2 with Dr. Riahinejad that Campos could perform simple, repetitive tasks and 3 expressly noted Dr. Riahinejad s assessment that in doing so Campos is slow.5 4 AR 348-49.6 Dr. Balson found Campos was not significantly limited in her ability 5 to perform activities within a schedule, sustain an ordinary routine without 6 special supervision, and complete a normal workday and workweek without 7 interruptions from psychologically based symptoms and to perform at a consistent 8 pace without an unreasonable number and length of rest periods. AR 344-45. 9 Citing Stubbs-Danielson v. Astrue, 539 F.3d 1169 (9th Cir. 2008), the 10 Commissioner argues that a limitation to simple work adequately captures a 11 finding that a claimant has moderate limitations in concentration, persistence or 12 pace. In Stubbs, the ALJ had translated the claimant s pace and mental 13 limitations into the only concrete restrictions available to him Dr. Eather s 14 recommended restriction to simple tasks. Id. at 1174. The court found that this 15 did not constitute a rejection of a physician s opinion that Stubbs had a slow pace 16 and was moderately limited in her ability to perform at a consistence pace without 17 an unreasonable number and length of rest periods. Id. at 1173-74. The court 18 held that the ALJ s RFC properly incorporated the limitations, including those 19 related to pace. Id. at 1174-75. 20 21 22 23 24 25 26 27 28 5 Campos argues that Dr. Balson inaccurately summarized Dr. Riahinejad s opinion and that the ALJ adopted the inaccurate summary, which resulted in error. JS 14-15. Campos does not identify or explain the inaccuracy. Without more, such vague and conclusory assertions are insufficient to overturn the ALJ s findings. See Independent Towers of Washington v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (noting that a bare assertion does not preserve a claim); Hibbs v. Dep t of Human Res., 273 F.3d 844, 873 n.34 (9th Cir. 2001) (finding argument too underdeveloped to be capable of assessment). 6 Although Campos reported to Dr. Riahinejad in August 2008 that she was seeing a psychiatrist and was taking Prozac, the medical record appears to show that Campos received mental health treatment only by her primary care doctor until she went to the DMH in November 2009. AR 256, 269-83, 557-61. She denied previous mental health services and reported to the DMH that her medications were effective. AR 557-58. 7 1 Here, in contrast to Stubbs, Campos was found to be not significantly 2 limited in her ability to perform activities within a schedule and perform at a 3 consistent pace without an unreasonable number and length of rest periods. AR 4 344-45. The ALJ did not err. See Batson v. Comm r of Soc. Sec. Admin., 359 5 F.3d 1190, 1193 (9th Cir. 2004) (ALJ s findings must be upheld if supported by 6 inferences reasonably drawn from the record ); Macri v. Chater, 93 F.3d 540, 7 543-44 (9th Cir. 1996) (ALJ is entitled to draw inferences logically flowing from 8 the evidence). 9 F. 10 State Agency Physician In her reply, Campos argues the ALJ erred by failing to articulate specific 11 and legitimate reasons for rejecting Dr. Balson s opinion that she had significant 12 difficulties in responding appropriately to changes in the work setting. JS 20. 13 Dr. Balson found Campos was moderately limited in her ability to respond 14 appropriately to changes in the work setting. AR 345. Dr. Balson concluded 15 Campos could perform simple, repetitive work. AR 340-46, 348-49. The ALJ 16 credited Dr. Balson s opinion, finding it consistent with the objective findings and 17 the evidence of record. AR 21. The ALJ reasonably interpreted Dr. Balson s 18 opinion. See Batson, 359 F.3d at 1193. The ALJ did not err. 19 IV. 20 ORDER 21 22 23 24 IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. 25 26 DATED: February 14, 2012 ALICIA G. ROSENBERG United States Magistrate Judge 27 28 8

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