Willie L Durden v. Michael J Astrue, No. 2:2011cv01211 - Document 29 (C.D. Cal. 2012)

Court Description: MEMORANDUM AND OPINION AND ORDER by Magistrate Judge Sheri Pym: IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits, and dismissing this action with prejudice. (am)

Download PDF

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 WILLIE L. DURDEN, 12 13 14 15 16 17 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security Administration, Defendant. ) Case No. CV 11-1211-SP ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 18 19 I. 20 INTRODUCTION 21 On February 18, 2011, plaintiff Willie L. Durden filed a complaint against 22 defendant Michael J. Astrue, seeking a review of a denial of Supplemental Security 23 Income ( SSI ) benefits. Both plaintiff and defendant have consented to proceed 24 for all purposes before the assigned Magistrate Judge pursuant to 28 U.S.C. 25 § 636(c). The parties briefing is now complete, and the court deems the matter 26 suitable for adjudication without oral argument. The sole issue presented for decision here is whether the Administrative Law 27 28 Judge ( ALJ ) properly determined at step five that plaintiff is capable of 1 performing other work in the national economy. Pl. s Mem. at 5-10; Def. s Mem. 22 5; Pl. s Reply at 3-4. 3 Having carefully studied, inter alia, the parties written submissions and the 4 Administrative Record ( AR ), the court concludes that, as detailed herein, there is 5 substantial evidence in the record, taken as a whole, to support the ALJ s decision. 6 Specifically, the ALJ properly determined at step five that plaintiff is capable of 7 performing other work in the national economy. The court therefore affirms the 8 Commissioner s decision denying benefits. 9 II. 10 FACTUAL AND PROCEDURAL BACKGROUND 11 Plaintiff, who was fifty-two years old on the date of his September 11, 2008 12 administrative hearing, has a seventh-grade education. See AR at 55, 62. His past 13 relevant work includes employment as a security guard, loader and unloader, 14 grocery checker, and dock worker. Id. at 69, 128, 137-39. 15 On December 18, 2006, plaintiff applied for SSI, alleging that he has been 16 disabled since December 31, 2003 due to asthma, hypertension, mental problems, 17 and problems with his heart, kidney, and back. See AR at 76, 100-03, 127. 18 Plaintiff s application was denied initially, after which he filed a request for a 19 hearing. Id. at 72, 76-80, 81. 20 At a hearing on April 8, 2008 at which plaintiff failed to appear, the ALJ 21 heard testimony from Dr. Harvey Halperin, a medical expert, and Sandra Snyder, a 22 vocational expert ( VE ). AR at 44-54. On September 11, 2008, plaintiff, 23 represented by counsel, appeared and testified at a hearing before the ALJ. Id. at 24 59-69. The ALJ also again heard testimony from VE Snyder at the September 11, 25 2008 hearing. Id. at 69-71. On April 6, 2009, the ALJ denied plaintiff s request for 26 benefits. Id. at 18-33. 27 Applying the well-known five-step sequential evaluation process, the ALJ 28 found, at step one, that plaintiff has not engaged in substantial gainful activity since 2 1 the date of his SSI application. AR at 20. 2 At step two, the ALJ found that plaintiff suffers from severe impairments 3 consisting of: hypertension, obesity, paranoid schizophrenia, alcohol abuse, and 4 borderline cognitive ability. AR at 20. 5 At step three, the ALJ determined the evidence does not demonstrate that 6 plaintiff s impairments, either individually or in combination, meet or medically 7 equal the severity of any listing set forth in 20 C.F.R. Part 404, Subpart P, Appendix 8 1. AR at 23. The ALJ then assessed plaintiff s residual functional capacity ( RFC )1/ and 9 10 determined that he can perform light work with the following limitations: lift 10 11 lbs frequently and 20 lbs occasionally ; stand or walk or sit a total of 6 hours in an 12 8 hour day ; occasionally stoop or climb ; no limits regarding simple instructions 13 or simple judgments ; precluded from detailed or complex instructions or 14 judgments ; limited to simple changes in the work routine ; precluded from 15 interaction with the public ; occasionally interact with co-workers and 16 supervisors ; and precluded from production rate jobs with production quotas 17 measured periodically throughout the workday, but he can sustain production rate 18 jobs with quotas to be met at the end of the workday or workweek. AR at 26 19 (emphasis omitted). 20 The ALJ found, at step four, that plaintiff is unable to perform any past 21 relevant work. AR at 31. 22 At step five, based upon plaintiff s vocational factors and RFC, the ALJ 23 24 1/ Residual functional capacity is what a claimant can still do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 26 n.5 (9th Cir. 1989). Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant s 27 residual functional capacity. Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 28 2007). 3 1 found that there are jobs that exist in significant numbers in the national economy 2 that [plaintiff] can perform. AR at 32 (emphasis omitted). The ALJ therefore 3 concluded that plaintiff was not suffering from a disability as defined by the Social 4 Security Act. Id. at 18, 33. 5 Plaintiff filed a timely request for review of the ALJ s decision, which was 6 denied by the Appeals Council. AR at 1-3, 9. The ALJ s decision stands as the 7 final decision of the Commissioner. 8 III. 9 STANDARD OF REVIEW 10 This court is empowered to review decisions by the Commissioner to deny 11 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 12 Administration must be upheld if they are free of legal error and supported by 13 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). 14 But if the court determines that the ALJ s findings are based on legal error or are 15 not supported by substantial evidence in the record, the court may reject the findings 16 and set aside the decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 17 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001). 18 Substantial evidence is more than a mere scintilla, but less than a 19 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such relevant 20 evidence which a reasonable person might accept as adequate to support a 21 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 22 F.3d at 459. To determine whether substantial evidence supports the ALJ s finding, 23 the reviewing court must review the administrative record as a whole, weighing 24 both the evidence that supports and the evidence that detracts from the ALJ s 25 conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be affirmed 26 simply by isolating a specific quantum of supporting evidence. Aukland, 257 F.3d 27 at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the 28 evidence can reasonably support either affirming or reversing the ALJ s decision, 4 1 the reviewing court may not substitute its judgment for that of the ALJ. Id. 2 (quoting Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). 3 IV. 4 DISCUSSION 5 Plaintiff contends that [b]ecause the ALJ found significant erosion in 6 [plaintiff s] ability to perform the full range of light unskilled work, the ALJ 7 should have applied Rule 201.10 2/ of the Medical-Vocational Guidelines (the 8 grids ),3/ 20 C.F.R. pt. 404, subpt. P, app. 2, and found him disabled. Pl. s Mem. at 9 7, 10. The court disagrees. 10 At step five, the burden shifts to the Commissioner to show that the claimant 11 retains the ability to perform other gainful activity. Lounsburry v. Barnhart, 468 12 F.3d 1111, 1114 (9th Cir. 2006). There are two ways for the Commissioner to meet 13 this burden: (a) by the testimony of a VE; or (b) by reference to the grids. Tackett, 14 180 F.3d at 1100-01 (citations omitted). But the Commissioner may rely on the 15 grids alone only when the grids accurately and completely describe the claimant s 16 abilities and limitations. Id. at 1102 (internal quotation marks and citations 17 18 2/ According to Rule 201.10, a person limited to sedentary work as a result of 19 severe medically determinable impairment(s) who is closely approaching an 20 advanced age, has limited or less than a high school education, and whose previous work experience is skilled or semiskilled (skills not transferrable), is presumptively 21 disabled. 20 C.F.R. pt. 404, subpt. P, app. 2, Rule 201.10. 22 3/ The grids present, in table form, a shorthand method for determining the 23 availability and number of suitable jobs for a claimant. Tackett v. Apfel, 180 F.3d 24 1094, 1101 (9th Cir. 1999). The grids categorize jobs by three physical exertional levels, consisting of sedentary, light, and medium work. Id. These exertional levels 25 are further divided by the claimant s age, education, and work experience. Id. The 26 grids direct a finding of disabled or not disabled based on the number of jobs in the national economy in the appropriate exertional category. Id. A claimant must be 27 able to perform the full range of jobs in an exertional category for the grids to apply. 28 Id. 5 1 omitted). When a claimant s RFC does not coincide exactly with the full range of 2 work in one of the grids three exertional levels, the Commissioner may not rely 3 solely on the grids and must obtain the testimony of a VE. Widmark v. Barnhart, 4 454 F.3d 1063, 1070 (9th Cir. 2006). 5 Here, the gravamen of plaintiff s argument is that because he was assessed as 6 having an RFC of reduced range of light exertion, Social Security Administration 7 Program Operations Manual System ( POMS ) DI 25001.001 ¶B.71 directs the ALJ 8 not to use the light grid rule as a framework for the decision, but instead to use the 9 sedentary grid rule. Pl. s Mem. at 8-10; Pl. s Reply at 3-4. Plaintiff therefore 10 contends that the ALJ should have used Rule 201.10 and found plaintiff disabled. 11 Pl. s Mem. at 10. 12 Contrary to plaintiff s contention, however, POMS does not impose judicially 13 enforceable duties upon the ALJ. See Hermes v. Sec y of Health & Human Servs., 14 926 F.2d 789, 791 n.1 (9th Cir. 1991) (POMS is an internal Social Security 15 Administration manual, for the use of Social Security Administration employees, 16 and has no force and effect of law ; however, [i]t is, nevertheless, persuasive 17 authority.). Moreover, even if POMS had the force and effect of law, POMS DI 18 25001.001 ¶B.71 does not mandate the ALJ to use a lower exertional rule level. 19 Instead, it merely suggests using a lower exertional rule as a framework if there is a 20 considerable reduction in the available occupations at a particular exertional level. 21 See POMS DI 25001.001 ¶B.71. 22 The real issue is whether the ALJ was justified in accepting the testimony of 23 the VE, and relying on it as the basis for his conclusion that there were jobs in the 24 economy that plaintiff could perform. Both parties agree, and the court finds, that 25 plaintiff s RFC does not coincide exactly with the full range of light or sedentary 26 27 28 6 1 work.4/ See Pl. s Mem. at 5-6; Def. s Mem. at 4-5. As a result, reliance solely on 2 the grids was not permitted and the ALJ rightfully relied on the testimony of the VE. 3 See Widmark, 454 F.3d at 1070. 4 During the hearing before the ALJ, based upon plaintiff s limitations, the VE 5 testified about two alternative occupations at the light exertional level that plaintiff 6 could perform: (1) laundry sorter (Dictionary of Occupational Titles ( DOT ) No. 7 361.687-014) with 3,500 local positions and 50,000 national positions; and (2) cloth 8 folder (DOT No. 589.687-014) with 7,000 local positions and 60,000 national 9 positions. AR at 70; see also Barker v. Sec y of Health & Human Servs., 882 F.2d 10 1474, 1478-79 (9th Cir. 1989) (citing approvingly decisions that have found several 11 hundred jobs significant ); 20 C.F.R. § 416.966(b) ( Work exists in the national 12 economy when there is a significant number of jobs (in one or more occupations) 13 having requirements [that the claimant is] able to meet with [his] physical or mental 14 abilities and vocational qualifications. ). Having carefully reviewed the DOT s 15 description of the requirements of the two alternative jobs, the court finds and 16 plaintiff does not argue otherwise that there is no inconsistency between the DOT 17 and the VE s testimony. Compare AR at 70 with DOT Nos. 361.687-014, 589.68718 014. The VE s testimony therefore qualifies as substantial evidence to support the 19 ALJ s step five finding that plaintiff retains the ability to perform other gainful 20 activity. See Jones v. Heckler, 760 F.2d 993, 998 (9th Cir. 1985) ( To qualify as 21 substantial evidence, the testimony of a vocational expert must be reliable in light of 22 23 24 25 26 27 28 4/ Light work involves lifting no more than twenty pounds at a time with frequent lifting or carrying of objects weighing up to ten pounds. See 20 C.F.R. § 416.967(b). A job in this category also requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. Id. Sedentary work involves lifting no more than ten pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. See 20 C.F.R. § 416.967(a). Jobs are sedentary if walking and standing are required occasionally. Id. 7 1 the medical evidence. (citations omitted)). 2 Accordingly, the ALJ met his burden and properly concluded that plaintiff 3 retains the ability to perform other gainful activity that exists in significant numbers 4 in the national economy. Lockwood v. Comm r, 616 F.3d 1068, 1071 (9th Cir. 5 2010), cert. denied, __U.S.__, 131 S. Ct. 2882, 179 L. Ed. 2d 1189 (2011) (the 6 Commissioner s burden, at step five, is only to show that the claimant can perform 7 some other work that exists in significant numbers in the national economy ). 8 V. 9 CONCLUSION 10 IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING 11 the decision of the Commissioner denying benefits, and dismissing this action with 12 prejudice. 13 14 Dated: March 2, 2012 15 ____________________________________ 16 SHERI PYM UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 8

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.