Dorene Campos v. Michael J. Astrue, No. 2:2011cv02405 - Document 20 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Dorene Campos filed this action on March 30, 2011. Pursuant to 28 U.S.C.§ 636(c), the parties consented to proceed before the magistrate judge on April 12 and 18, 2011. On Ma rch 15, 2012, the parties filed a Joint Stipulation (JS) that addressed the disputed issue. The court has taken the matter under submission without oral argument. Having reviewed the entire file, the court affirms the decision of the Commissioner. IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. (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 DORENE CAMPOS, 12 Plaintiff, 13 v. 14 15 16 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 17 18 ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 11-2405 AGR MEMORANDUM OPINION AND ORDER Dorene Campos filed this action on March 30, 2011. Pursuant to 28 U.S.C. 19 § 636(c), the parties consented to proceed before the magistrate judge on April 20 12 and 18, 2011. (Dkt. Nos. 7, 9.) On March 15, 2012, the parties filed a Joint 21 Stipulation ( JS ) that addressed the disputed issue. The court has taken the 22 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 April 11, 2003, Campos filed an application for supplemental security 4 income benefits, alleging an onset date of July 1, 2000. Administrative Record 5 ( AR ) 73-76. The application was denied. AR 38-41. On December 8, 2004, an 6 Administrative Law Judge ( ALJ ) conducted a hearing at which Campos and a 7 vocational expert ( VE ) testified. AR 329-48. On May 23, 2005, the ALJ issued 8 a decision denying benefits. AR 32-37. On March 3, 2006, the Appeals Council 9 issued an order vacating the ALJ s decision and remanding the matter for further 10 11 review. AR 69-72. On September 21, 2006, a second ALJ conducted a hearing, at which 12 Campos and a VE testified. AR 349-69. On October 3, 2006, the ALJ issued a 13 decision denying benefits. AR 14-22. On February 23, 2007, the Appeals 14 Council denied the request for review. AR 5-7. 15 On April 4, 2007, Campos filed a complaint in this court. On April 15, 2008, 16 this court issued a remand order. AR 402-09. On May 27, 2008, pursuant to the 17 remand order, the Appeals Council vacated the ALJ s decision and remanded the 18 case for further proceedings consistent with this court s order. AR 401. 19 On September 10, 2009, the ALJ conducted a hearing at which Campos 20 and a VE testified. AR 556-73. On November 13, 2009, the ALJ issued a 21 decision denying benefits. AR 380-94. On January 24, 2011, the Appeals 22 Council denied the request for review. AR 370-72. This action followed. 23 II. 24 STANDARD OF REVIEW 25 Pursuant to 42 U.S.C. § 405(g), this court reviews the Commissioner s 26 decision to deny benefits. The decision will be disturbed only if it is not 27 supported by substantial evidence, or if it is based upon the application of 28 2 1 improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); 2 Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 3 Substantial evidence means more than a mere scintilla but less than a 4 preponderance it is such relevant evidence that a reasonable mind might 5 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 6 determining whether substantial evidence exists to support the Commissioner s 7 decision, the court examines the administrative record as a whole, considering 8 adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the 9 evidence is susceptible to more than one rational interpretation, the court must 10 defer to the Commissioner s decision. Moncada, 60 F.3d at 523. 11 III. 12 DISCUSSION 13 A. 14 A person qualifies as disabled, and thereby eligible for such benefits, only 15 if his physical or mental impairment or impairments are of such severity that he is 16 not only unable to do his previous work but cannot, considering his age, 17 education, and work experience, engage in any other kind of substantial gainful 18 work which exists in the national economy. Barnhart v. Thomas, 540 U.S. 20, 19 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003). 20 Disability B. The ALJ s Findings 21 The ALJ found that Campos had the severe impairments of obesity, 22 Hepatitis C, hypertension, diabetes, degenerative lumbar disc disease and 23 bilateral knee osteoarthritis. AR 390. Campos had the residual functional 24 capacity ( RFC ) to perform light work except that she was limited to occasional 25 climbing, balancing, stooping, kneeling, crouching and crawling activities.1 Id. 26 Campos cannot perform any past relevant work. AR 393. However, based on 27 28 1 Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. 20 C.F.R. § 416.967(b). 3 1 the VE s testimony, the ALJ found there were a significant number of jobs in the 2 national economy that she could perform such as inspector, marker, office 3 helper, assembler, order clerk and call out operator. AR 393-94. 4 C. Compliance With The Court s Remand Order 5 Campos asserts that the ALJ failed to comply with this court s remand 6 order. Specifically, Campos argues that the ALJ simply obliterated any mental 7 functioning limitation in his decision. JS 6. 8 9 The ALJ must comply with a district court's remand order. See Sullivan v. Hudson, 490 U.S. 877, 886, 109 S. Ct. 2248, 104 L. Ed. 2d 941 (1989) 10 ( Deviation from the [district] court's remand order in the subsequent 11 administrative proceedings is itself legal error. ); Holliday v. Astrue, 2010 U.S. 12 Dist. LEXIS 29808, *8-*9 (C.D. Cal. 2010). Failure to comply with a court's 13 remand order is subject to harmless error analysis. Blanquet v. Astrue, 2011 14 U.S. Dist. LEXIS 6879, *12 (C.D. Cal. 2011); see also McLeod v. Astrue, 640 15 F.3d 881, 887 88 (9th Cir. 2011) (harmless error rule). 16 This court found that the ALJ erred in ignoring Dr. Hudson s psychiatric 17 report, ignoring Dr. Townsend s unrebutted finding that Campos was moderately 18 limited in her ability to respond appropriately to work pressures in a usual work 19 setting, and failing to include that limitation in the hypothetical to the VE. AR 408. 20 The matter was remanded at step five of the sequential analysis so the ALJ 21 may add the limitation that Campos was moderately limited in her ability to 22 respond appropriately to work pressures in a usual work setting in his 23 hypothetical to the VE. AR 409. 24 On remand, the ALJ stated that the sole reason for the remand was . . . for 25 me to address the findings of Drs. Hudson and Dr. Townsend, both of whom 26 found moderate limitations in [Campos] ability to respond appropriately to work 27 pressures in a usual work setting. AR 387. The ALJ obtained updated medical 28 records and rejected the moderate limitation found by Drs. Hudson and 4 1 Townsend. AR 388-89. The ALJ initially included only mild mental limitations 2 (including adapting to work place changes) in his hypothetical to the VE. AR 568. 3 The VE identified both light and sedentary jobs that such an individual could 4 perform. AR 569-70. The ALJ asked whether moderate mental limitations 5 would preclude the ability to do entry level work or unskilled work, and the VE 6 expert responded that it would not prevent an individual from performing the light 7 or sedentary jobs he had identified previously. AR 572-73. Contrary to Campos argument, even assuming the ALJ erred on remand in 8 9 rejecting a moderate limitation in the ability to respond appropriately to work 10 pressures in an usual work setting, [r]eversal on account of error is not 11 automatic. Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012). The burden 12 is on the party claiming error to demonstrate not only the error, but also that it 13 affected his substantial rights, which is to say, not merely his procedural rights. 14 Id. Among the case-specific factors to be considered is an estimation of the 15 likelihood that the result would have been different. Id. (citation omitted). Campos has not shown prejudice. Given the VE s testimony, the ALJ s 16 17 decision would not have been any different had he accepted the moderate mental 18 limitation. In the form on which Dr. Townsend assessed moderate limitation in 19 Campos ability to respond appropriately to work pressures in an usual work 20 setting, the term moderate was defined as follows: There is moderate limitation 21 in this area but the individual is still able to function satisfactorily. AR 310. The 22 social security regulations do not equate moderate mental limitations with an 23 inability to perform gainful work activity. 20 C.F.R. § 416.920a(c)(4). In the 24 absence of prejudice, Campos is not entitled to reversal. Ludwig, 681 F.3d at 25 1055. 26 Campos argues that a moderate mental limitation affects the ability to work 27 up to one third of the work day. However, the cases on which Campos relies do 28 not stand for that proposition as a matter of law. In the Third Circuit case cited by 5 1 Campos, Morales v. Apfel, the court noted that the VE in that case defined 2 moderately limited to mean that the claimant was unable to perform the tasks up 3 to a third of the time. 225 F.3d 310, 314 n.4 (3d Cir. 2000). By contrast, the form 4 Dr. Townsend used defined moderate to mean that the individual was still able to 5 function satisfactorily, and the VE in this case testified that such an individual 6 would be able to perform the jobs identified. AR 310, 572-73. In other words, the 7 VE in this case did not define the term moderate in the same way as the VE in 8 Morales.2 In this circuit, determination of prejudice is determined in light of the 9 circumstances of the case, as opposed to presumptions and generalizations. 10 Ludwig, 681 F.3d at 1054 (citation omitted). 11 IV. 12 ORDER 13 14 15 16 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. 17 18 19 DATED: July 12, 2012 ALICIA G. ROSENBERG United States Magistrate Judge 20 21 22 23 24 25 26 27 28 2 The VE in this case made clear that if moderate were defined to mean that the individual was unable to work up to one third of the work day, that hypothetical individual would not be able to sustain full-time, competitive work. AR 571-72. 6

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