Florence Wratten v. Michael J. Astrue, No. 2:2011cv00088 - Document 13 (C.D. Cal. 2011)

Court Description: MEMORANDUM AND OPINION AND 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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 FLORENCE WRATTEN, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 11-00088-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 issue: 28 Whether the Administrative Law Judge ( ALJ ) properly found that 1 Plaintiff could perform other work in the national economy. (JS at 3- 2 5.) 3 This Memorandum Opinion will constitute the Court s findings of 4 fact and conclusions of law. After reviewing the matter, the Court 5 concludes that the decision of the Commissioner must be affirmed. 6 7 I 8 THE ALJ PROPERLY FOUND THAT PLAINTIFF 9 COULD PERFORM OTHER WORK 10 Plaintiff contends that the ALJ s finding that she could perform 11 other work in the national economy was not supported by substantial 12 evidence because the ALJ erred in finding that she had transferable 13 skills without also showing that very little vocational adjustment was 14 required. (JS at 3-5.) 15 The ALJ found that Plaintiff was an individual of advanced age at 16 all times relevant to the decision and had the residual functional 17 capacity ( RFC ) to perform light work as defined in 20 C.F.R. 18 §404.1567(b), except that she was limited to frequent climbing, 19 balancing, stooping, kneeling, crouching and crawling, and must avoid 20 all exposure to pulmonary irritants such as dusts, fumes, gases and 21 odors. 22 these findings. (AR 56, 60.) Plaintiff does not dispute the correctness of 23 At Plaintiff s administrative hearing (AR 7-42), the ALJ posed to 24 the vocational expert ( VE ) hypothetical questions which included all 25 of Plaintiff s limitations. 26 that an individual of Plaintiff s age, education, work experience and 27 RFC could not perform her past work as a general duty nurse. 28 38.) (AR 37-38.) In response, the VE stated (AR 37- Next, the ALJ asked if such an individual could perform other 2 1 work in the national economy. The VE responded, 2 Yes, Your Honor. 3 described 4 transferable skills. 5 occupation medical assistant, DOT code 079362010. 6 exertion, skilled, specific vocational preparation level 7 six... . 8 been a general duty nurse would have transferable skills is 9 the occupation phlebotomist. could An individual such as you have just perform two occupations based on This individual could perform the Light Another occupation to which an individual who had This is DOT code 079364022. 10 This work is light in exertion. It is semi-skilled with a 11 specific vocational preparation level of three . . . . 12 (AR 38.) Based on this testimony, the ALJ found Plaintiff had 13 acquired work skills from her past relevant work as a registered nurse 14 and could perform other work in the national economy. 15 concluded Plaintiff was not disabled. (AR 60-61.) He (AR 61-62.) 16 17 A. Applicable Law. 18 For individuals capable of light work, The presence of acquired 19 skills that are readily transferable to a significant range of semi- 20 skilled or skilled work within an individual s residual functional 21 capacity would ordinarily warrant a finding of not disabled regardless 22 of the adversity of age ... . 23 §202.00(e). 20 C.F.R. §404, Subpart P, App. 2, 24 In order to find individuals of advanced age (age 55 or over) not 25 disabled, they must have acquired skills from their past work that 26 are transferable to skilled or semiskilled work. 27 903 28 §404.1568(d)(4). F.2d 1273, 1275 (9th Cir. 3 1990); see Terry v. Sullivan, also 20 C.F.R. 1 To determine whether an individual of advanced age but less than 2 60 years old 3 transferable to light work, the ALJ considers the degree of skill 4 required, 5 similarity 6 involved. 7 individual closely approaching retirement age (age 60-64) and capable 8 of light work has acquired skills transferable to light work, the ALJ 9 must further find that the light work is so similar to past relevant the of and capable similarity raw of of materials, light tools work and has acquired machines products, 20 C.F.R. §404.1568(d)(2), (4). used, processes and skills and the services To determine whether an 10 work that very little, if any, vocational adjustment is necessary. 11 20 C.F.R. §§404.1568(d)(4); 404, Subpart P, App. 2, §202.00(f). 12 13 B. 14 Plaintiff contends that, for her skills to be transferable to 15 other jobs, the ALJ was required to show that very little, if any, 16 vocational adjustment is required pursuant to (1) 20 C.F.R. §404, 17 Subpart P, App. 2, §202.00(f), and (2) Terry and Renner v. Heckler, 18 786 F.2d 1421 (9th Cir. 1986). 19 Analysis. (JS at 3-5.) Plaintiff s contention fails because, first, 20 C.F.R. §404, 20 Subpart P, App. 2, §§202.00(f) does not apply here. As noted above, 21 subsection (e) of that regulation states that individuals capable of 22 light work who have acquired transferable skills ordinarily are not 23 disabled. 24 contends that subsection (f) of the regulation requires the ALJ also 25 to show very little, if any, vocational adjustment. 26 Subsection (f) states, 20 C.F.R. §404, Subpart P, App. 2, §202.00(e). Plaintiff (JS at 3-4.) 27 For a finding of transferability of skills to light for 28 individuals of advanced age who are closely approaching 4 1 retirement age (age 60 or older), there must be very little, 2 if any, vocational adjustment required in terms of tools, 3 work processes, work settings, or the industry. 4 20 C.F.R. §404, Subpart P, App. 2, §§202.00(f); see also 20 C.F.R. 5 §404.1568(d)(4). 6 of advanced age who are closely approaching retirement age (age 60 or 7 older). 8 C.F.R. §404.1568(d)(4). While Plaintiff is of advanced age (age 55 or 9 older), she is not closely approaching retirement age (age 60 or Subsection (f) clearly applies only to individuals 20 C.F.R. §404, Subpart P, App. 2, §§202.00(f); see also 20 10 older). 11 subsection(f) does not apply here. 12 it does not require a showing of very little vocational adjustment. 13 14 15 20 C.F.R. §404.1563(e). Contrary to Plaintiff s contention, Subsection (e) controls here and 20 C.F.R. §404, Subpart P, App. 2, §§202.00(e); see also 20 C.F.R. §404.1568(d)(4). Second, Terry and Renner do not apply here. Terry and Renner 16 both require a showing of very little, if any, vocational adjustment 17 when the individual is limited to sedentary work. 18 1275; and Renner, 786 F.2d at 1423-24. 19 20 C.F.R. §404, Subpart P, App. 2, §201.00(f), a regulation pertinent 20 to individuals limited to sedentary work. 21 and Renner, 786 F.2d at 1423. 22 than sedentary work; she was capable of light work. 23 above, the regulation concerning individuals of Plaintiff s age and 24 capable of light work does not require a showing of very little 25 vocational 26 §§202.00(e),(f); see also 20 C.F.R. §404.1568(d)(4). adjustment. 20 Terry, 903 F.2d at Both of those cases relied on Terry, 903 F.2d at 1275; Here, Plaintiff was capable of more C.F.R. §404, Subpart As discussed P, App. 2, 27 Finally, even if Plaintiff qualified for application of the 28 factors identified in §201.00(f), the record demonstrates that her 5 1 ability to perform the jobs identified at Step Five would require 2 very little, if any, vocational adjustment. Indeed, in her previous 3 occupation as a nurse, Plaintiff testified that she often did blood 4 draws, which is what a phlebotomist does. (See AR at 17; 37-38; 129.) 5 Plaintiff s contention lacks merit. 6 For the foregoing reasons, the decision of the ALJ will be 7 8 affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 9 DATED: September 14, 2011 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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