Matthew Wimberly v. Michael J Astrue, No. 2:2011cv04933 - Document 25 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER by Magistrate Judge Jean P Rosenbluth: (See document for details.) VI. CONCLUSION: For the reasons stated above, Plaintiff's motion for summary judgment 18 is DENIED, Defendant's motion for summary judgment 24 is GRANTED, the decision of the Social Security Commissioner is AFFIRMED, and the action is DISMISSED with prejudice.. (rla) Modified on 2/21/2012 (rla).

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 MATTHEW WIMBERLY, 10 Plaintiff, 11 vs. 12 13 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 14 Defendant. 15 ) Case No. CV 11-4933-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) AFFIRMING THE COMMISSIONER ) ) ) ) ) ) ) 16 17 I. PROCEEDINGS 18 Plaintiff Matthew Wimberly seeks review of the 19 Commissioner s final decision denying his application for 20 Supplemental Security Income benefits ( SSI ). The matter is 21 before the Court on the parties cross-motions for summary 22 judgment. The Court has taken both motions under submission 23 without oral argument. For the reasons stated below, Plaintiff s 24 motion is denied and Defendant s is granted, the decision of the 25 Commissioner is affirmed, and this action is dismissed with 26 prejudice. 27 II. BACKGROUND 28 Plaintiff was born on July 23, 1962. 1 (Administrative Record 1 ( AR ) 37.) He has past work experience as a caregiver, 2 construction worker, and laborer. (AR 64.) Plaintiff originally 3 filed an application for SSI benefits on December 7, 2004, 4 alleging disability beginning on April 1, 2004, from injuries to 5 his hands, gunshot wounds in his legs, and arthritis in his hands 6 and legs. (AR 63.) Following a 2006 hearing before an 7 Administrative Law Judge ( ALJ ), the ALJ determined that 8 Plaintiff retained the residual functional capacity ( RFC )1 to 9 perform a significant number of jobs that existed in the local 10 and national economy. (AR 14.) After a request for review by 11 the Appeals Council was denied, Plaintiff appealed to this Court, 12 which concluded that remand was appropriate because the ALJ had 13 improperly ignored the opinion of a state agency physician. See 14 Wimberly v. Astrue, No. CV 07-1952-JC, 2008 WL 4381617 (C.D. Cal. 15 Sept. 25, 2008). 16 Upon remand, a hearing was held before ALJ Cynthia A. Minter 17 on October 22, 2009. (AR 271.) Plaintiff, who was represented 18 by counsel, testified at the hearing, as did a Vocational Expert, 19 Barbara Miksic ( VE Miksic ). (Id.) The ALJ determined that 20 Plaintiff had a more limited RFC than found by the ALJ in the 21 2006 hearing decision. (AR 273-74.) She nevertheless found that 22 Plaintiff was not disabled and denied the application. 23 79.) (AR 271- On April 6, 2011, the Appeals Council declined review. 24 253-55.) 25 26 1 RFC is what a claimant can still do despite existing 27 exertional and nonexertional limitations. 20 C.F.R. § 416.945(a); see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 28 (9th Cir. 1989). 2 (AR 1 Plaintiff contends that the ALJ s determination that 2 Plaintiff could perform gainful work available in the national 3 economy was not supported by substantial evidence. 4 at 3-9.) (Pl. s Mot. Specifically, Plaintiff challenges the ALJ s finding 5 that he could perform the occupation of call out operator as 6 well as her determination that the occupation of surveillance 7 system monitor existed in sufficient numbers in the economy 8 suitable to his limitations. (Pl. s Mot. at 5-7.) Plaintiff 9 also argues that even if he did have the RFC to perform the 10 identified occupations, a finding of disabled was still warranted 11 based on a comparison to the Medical-Vocational Guidelines, 20 12 C.F.R. Part 404, Subpart P, Appendix 2, Rule 201. (Pl. s Mot. at 13 6-8). 14 III. STANDARD OF REVIEW 15 Under 42 U.S.C. § 405(g), a district court may review the 16 decision of the Commissioner (or ALJ) to deny benefits. The 17 Court may set aside the Commissioner s decision when the ALJ s 18 findings are based on legal error or are not supported by 19 substantial evidence in the record as a whole. Aukland v. 20 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. Chater, 21 80 F.3d 1273, 1279 (9th Cir. 1996). Substantial evidence is 22 more than a scintilla, but less than a preponderance. 23 v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). Reddick It is relevant 24 evidence which a reasonable person might accept as adequate to 25 support a conclusion. Id. To determine whether substantial 26 evidence supports a finding, the court must consider the record 27 as a whole, weighing both evidence that supports and evidence 28 that detracts from the [Commissioner s] conclusion. 3 Aukland, 1 257 F.3d at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th 2 Cir. 1993)). If the evidence can reasonably support either 3 affirming or reversing that conclusion, a court may not 4 substitute its judgment for that of the Commissioner, and the 5 ALJ s decision must be upheld. Reddick, 157 F.3d at 720-21. 6 IV. THE EVALUATION OF DISABILITY 7 People are disabled for purposes of receiving Social 8 Security benefits if they are unable to engage in any substantial 9 gainful activity owing to a severe physical or mental impairment 10 that is expected to result in death or which has lasted, or is 11 expected to last, for a continuous period of at least 12 months. 12 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 13 (9th Cir. 1992). 14 A. 15 The Commissioner follows a five-step sequential evaluation The Five-Step Evaluation Process 16 process in assessing whether a claimant is disabled. 20 C.F.R. 17 § 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 18 1995) (as amended Apr. 9, 1996). In the first step, the 19 Commissioner must determine whether the claimant is currently 20 engaged in substantial gainful activity; if so, the claimant is 21 not disabled and the claim is denied. § 416.920(a)(4)(i). If 22 the claimant is not engaged in substantial gainful activity, the 23 second step requires the Commissioner to determine whether the 24 claimant has a severe impairment or combination of impairments 25 significantly limiting his ability to do basic work activities; 26 if not, a finding of nondisability is made. § 416.920(a)(4)(ii). 27 If the claimant has a severe impairment or combination of 28 impairments, the third step requires the Commissioner to 4 1 determine whether the impairment or combination of impairments 2 meets or equals an impairment in the Listing of Impairments 3 ( Listing ) set forth at 20 C.F.R., Part 404, Subpart P, Appendix 4 1; if so, disability is conclusively presumed and benefits are 5 awarded. § 416.920(a)(4)(iii). If the claimant s impairment 6 does not meet an impairment in the Listing, the fourth step 7 requires the Commissioner to determine whether the claimant has 8 sufficient RFC to perform his past work; if so, the claimant is 9 not disabled. § 416.920(a)(4)(iv). The claimant has the burden 10 of proving that he is unable to perform past relevant work. 11 Drouin, 966 F.2d at 1257. If the claimant meets that burden, a 12 prima facie case of disability is established. Id. If that 13 happens or if the claimant has no past relevant work, the 14 Commissioner then bears the burden of establishing that the 15 claimant is not disabled because he can perform other substantial 16 gainful work available in the national economy. 17 (4)(v). § 416.920(a) That determination comprises the fifth and final step in 18 the sequential analysis. § 416.920; Lester, 81 F.3d at 828 n.5; 19 Drouin, 966 F.2d at 1257. 20 B. 21 At step one, the ALJ found that Plaintiff had not engaged in The ALJ s Application of the Five-Step Process 22 any substantial gainful activity since December 7, 2004. 23 273.) (AR At step two, the ALJ concluded that Plaintiff has the 24 following severe impairments: he is status post a right hand 25 fracture and right elbow injury and he is status post gun shot 26 wound injuries to the bilateral thighs. (Id.) At step three, 27 the ALJ found that Plaintiff did not have an impairment or 28 combination of impairments that met or equaled any of the 5 1 impairments in the Listing. (Id.) At step four, the ALJ made 2 the following findings: 3 [T]he claimant has the [RFC] to lift and carry 10 pounds 4 frequently and up to 15 pounds occasionally, he requires 5 a job which allows him to alternate between sitting and 6 standing, he is unable to walk and stand more than 2 7 hours in an 8 hour workday and he can sit 6 hours in an 8 8 hour workday. 9 he would need to alternate positions to standing so that 10 he can move around in his work area for up to 5 minutes 11 at 12 occasional above the shoulder reaching with the right 13 hand and arm, but would be capable of frequent above the 14 shoulder reaching with the left hand and arm. 15 have 16 difficulty gasping due locking of the fingers and a grasp 17 which may be incomplete. This may lead to difficulty 18 holding a glass and the claimant might be prone to 19 dropping things due to his grasp. Additionally, he would 20 be limited to occasional fingering with the right hand 21 and fingering with keyboarding may be difficult due to 22 finger locking. Lastly, the claimant would be limited to 23 occasional pushing and pulling with the right upper 24 extremity and left lower extremity, but he is capable of 25 frequent 26 extremity. a time. However, after sitting for 30 minutes, Additionally, difficulty 27 (AR 273-74.) pushing handling and he with pulling would the with be right the limited to He would hand left with upper The ALJ therefore determined that Plaintiff was 28 unable to perform any past relevant work. 6 (AR 277.) At step 1 five, the ALJ found that Plaintiff could perform other work that 2 existed in significant numbers in the national economy. 3 278.) (AR Specifically, the ALJ found that Plaintiff was capable of 4 performing the jobs of surveillance system monitor, based on the 5 testimony of VE Miksic at the October 22, 2009 hearing, and call6 out operator, based on evidence from the 2006 hearing. 7 (Id.) At the October 2009 hearing, after VE Miksic testified that 8 Plaintiff could perform the surveillance system monitor job, 9 Plaintiff s counsel asked, 10 [W]e have this person who s 47 years old and if we re 11 going to compare this 47-year-old person who could do the 12 full range of sedentary work who s three years older, 13 someone who was 50, so [your] testimony is telling us 14 that basically that these physical limitations that have 15 been documented are a greater vocational detriment than 16 three years of age, is that correct? 17 (AR 388.) VE Miksic responded, Yes. (AR 389.) The ALJ then 18 asked, 19 [C]ould you say that again? 20 thought I was on the same wave length but I just want to 21 be sure I understand your argument. 22 (Id.) You kind of lost me. I Counsel then stated, 23 What I was positing was comparing this hypothetical 24 person here with the one job to a person who s 50 years 25 old who has basically the full range of sedentary work. 26 Who s worse off, essentially, this 47-year-old person or 27 someone who s three years older who can do the full range 28 of sedentary work and Ms. Miksic testified that these 7 1 vocational factors and impairments and limitations are 2 worse vocationally. 3 person who s 50 years old is disabled at sedentary, my 4 client who s limited to the one job would also have to be 5 found disabled. 6 (Id.) So, what I m saying is that if a The ALJ responded that that was a creative argument. 7 (Id.) 8 V. DISCUSSION 9 A. The ALJ Properly Found that Sufficient Numbers of 10 Surveillance System Monitor Jobs Existed in the Economy 11 that Plaintiff Could Perform 12 Plaintiff contends that the ALJ erred in adopting the 13 testimony of VE Miksic regarding the number of surveillance 14 system monitor jobs in the economy because the numbers were not 15 supported by substantial evidence. (Pl. s Mot. at 6.) At the 16 hearing, VE Miksic testified that someone with Plaintiff s RFC 17 would be able to perform the occupation of surveillance system 18 monitor, which involves sedentary work and carries the number 19 379.367-010 in the Dictionary of Occupational Titles ( DOT ). 20 See 1991 WL 673244. (AR 385.) She further testified that there 21 were approximately 1500 such jobs locally and 98,000 nationally. 22 (Id.) In response to a question from Plaintiff s counsel 23 regarding the source of this information, the VE testified that 24 she had used data from the U.S. Bureau of Labor Statistics from 25 the first quarter of 2009. 26 (AR 386.) Following the ALJ s decision denying benefits, Plaintiff 27 submitted new evidence to the Appeals Council seemingly 28 undermining VE Miksic s testimony regarding the availability of 8 1 surveillance system monitor jobs suitable to Plaintiff s RFC. 2 (AR 256-67.) The evidence consisted primarily of two statements 3 from the Occupational Employment Quarterly ( OEQ ), a publication 4 of United States Publishing Company, a private company. The 5 statements were from the third quarter of 2009 and showed that 6 there were no surveillance system monitor positions available in 7 the national or local economy at the sedentary level.2 8 67.) (AR 256- As Plaintiff has an RFC that is even more restrictive than 9 sedentary, the OEQ statements purportedly demonstrated that no 10 surveillance system monitor jobs that Plaintiff could perform 11 existed in the relevant time period. (AR 278.) The Appeals 12 Council denied review, finding that the additional documentation 13 was insufficient to rebut the testimony of the vocational expert 14 and the [DOT]. 15 (AR 253.) When, as here, new and material evidence is submitted to 16 the Appeals Council relating to the period on or before the date 17 of the [ALJ s] hearing decision, the Appeals Council must 18 consider the additional evidence in determining whether to grant 19 review. See 20 C.F.R. § 416.1470(b). When, as here, the Appeals 20 Council did consider additional evidence but denied review, the 21 additional evidence becomes part of the administrative record for 22 purposes of this Court s analysis. See Harman v. Apfel, 211 F.3d 23 1172, 1179-80 (9th Cir. 2000); Taylor v. Comm r of Soc. Sec. 24 25 26 27 28 2 The OEQ statements submitted by Plaintiff list employment based on census codes. Each census code comprises a group of codes from the DOT. The DOT code for surveillance system monitor, 379.367-010, falls under census code 392. (AR 261.) The OEQ statements, which break down employment data for each census code into exertional levels, state that there are no sedentary positions for census code 392. (AR 265, 267.) 9 1 Admin., 659 F.3d 1228, 1232 (9th Cir. 2011). This Court then 2 engages in an overall review of the ALJ s decision, including 3 the new evidence, to determine whether the decision was 4 supported by substantial evidence and was free of legal 5 error. 3 6 Taylor, 659 F.3d at 1232. The resolution of this case is governed by Gomez v. Chater, 7 74 F.3d 967, 972 (9th Cir. 1996). In that case, the ALJ relied 8 upon the Medical-Vocational Guidelines to find that there were 9 jobs in the national economy that the claimant could perform. 10 Id. In seeking review of the ALJ s decision, the claimant 11 submitted to the Appeals Council a vocational expert s report 12 concluding that there were no jobs she could perform. 13 971. Id. at The Ninth Circuit held that because the ALJ relied on 14 proper evidence in concluding to the contrary, the Appeals 15 Council was free to reject evidence produced by [the claimant s] 16 vocational expert, evidence which was obtained after an adverse 17 administrative decision. Id. at 972. Moreover, the Appeals 18 Council was not required to make any findings concerning its 19 rejection of the evidence. 20 Id. Here, similarly, the ALJ s decision was supported by 21 substantial evidence and free of legal error because she properly 22 relied on VE Miksic s testimony, as to which Plaintiff has not 23 24 25 26 27 28 3 This review comes under sentence four of 42 U.S.C. § 405(g), not sentence six. See, e.g., Boucher v. Astrue, No. C09-1520-JCC, 2010 WL 2635078 (W.D. Wash. June 25, 2010). Sentence six review considers whether to compel the Commissioner to accept additional evidence not previously incorporate[d] . . . into the record. § 405(g). Here, the Commissioner already incorporated the additional evidence into the record before the Appeals Council. 10 1 identified any error, and the DOT. See 20 C.F.R. § 416.966(e) 2 (authorizing ALJs to rely on vocational expert testimony to 3 determine occupational issues); Osenbrock v. Apfel, 240 F.3d 4 1157, 1163 (9th Cir. 2001) (testimony of qualified vocational 5 expert constitutes substantial evidence). Rather, Plaintiff 6 seems to claim only that his evidence, which he likewise did not 7 present until after an adverse administrative decision, was 8 somehow better than VE Miksic s testimony and the DOT s 9 description of the surveillance system monitor job as sedentary. 10 See DICOT 379.367-010, 1991 WL 673244. 11 gain remand. That is not enough to See Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 12 2002) ( Where the evidence is susceptible to more than one 13 rational interpretation, one of which supports the ALJ s 14 decision, the ALJ s conclusion must be upheld. ). 15 Accordingly, substantial evidence supported the ALJ s finding 16 that Plaintiff could perform the surveillance system monitor job, 17 and that determination was free of legal error.4 Thus, remand 18 is not warranted on this basis.5 19 4 Because the Commissioner properly concluded that Plaintiff 20 could perform the job of surveillance system monitor, the Court 21 does not consider Plaintiff s argument that it erred in finding that he could perform the call-out operator job. Any error was See Gray v. Comm r of Soc. Sec. Admin., 365 F. App x 60, 63 (9th Cir. 2010) (affirming ALJ s finding that Plaintiff could find work because, [e]ven assuming, arguendo, that two of the three jobs named by the [vocational expert] . . . were inconsistent with [plaintiff s residual functional capacity], third job was not and was enough to support ALJ s conclusion). 22 necessarily harmless. 23 24 25 26 5 The Court further notes that Plaintiff has not presented 27 any reason why he did not proffer his evidence, which presumably was available at the time of the hearing (if not for the third 28 quarter of 2009, then for the second quarter), to the ALJ, rather 11 1 2 3 B. Plaintiff s Argument that a Finding of Disabled Was Warranted Based on the Grid Is Without Merit Plaintiff contends that a finding of disabled was warranted 4 based on comparison of the occupational base available to him 5 with the occupational base available to other claimants who are 6 considered disabled under the Medical-Vocational Guidelines, 20 7 C.F.R. Part 404, Subpart P, Appendix 2, Rule 201 ( the grid ). 8 (Pl. s Mot. at 7-8.) According to Plaintiff, he is capable of 9 performing fewer jobs than a person who would have been deemed 10 disabled under Rule 201.12 of the grid and thus was entitled to a 11 disabled determination. 12 App. 2, R. 201.12. (Id.); 20 C.F.R. Pt. 404, Subpt. P, Specifically, Plaintiff asserts that he is 13 worse off vocationally than a person three years older but 14 capable of performing the full range of sedentary work. (Pl. s 15 Mot. at 7.) He cites Swenson v. Sullivan, 876 F.2d 683, 689 (9th 16 Cir. 1989), for the proposition that comparison to adjacent grid 17 rules is appropriate. 18 (Id. at 7-8.) Swenson merely stands for the proposition that an ALJ errs 19 than waiting to submit it to the Appeals Council. Reviewing 20 administrative records supplemented with information the ALJ did 21 not consider mire[s] the federal courts in an Alice in Wonderland exercise of pretending that evidence the real ALJ Angst v. Astrue, 351 F. App x 227, 229-30 (9th Cir. 2009) (Rymer, J., concurring). It also encourages inertia by not penalizing those who, for no reason other than lack of preparation, do not present their best evidence to the ALJ. Taylor relies on Ramirez v. Shalala, 8 F.3d 1449 (9th Cir. 1993), for the proposition that review of such evidence in these circumstances is proper, see 659 F.3d at 1232, but in fact Ramirez did not decide the issue. See Angst, 351 F. App x at 229; Mayes v. Massanari, 276 F.3d 453, 461 n.3 (9th Cir. 2001). Nonetheless, because Taylor holds that district courts must consider such evidence and review the overall record, the Court does so here. 22 didn t know existed was really before him. 23 24 25 26 27 28 12 1 by failing to clarify ambiguous testimony concerning the 2 operation of the grid. 876 F.2d at 688. There is no statute, 3 regulation, or case law holding that an ALJ must carry out a 4 comparison between entries on the grid. 5 In this case, the ALJ did seek clarification of the record. 6 After Plaintiff s counsel asked VE Miksic about whether Plaintiff 7 was in a worse position than someone three years older with fewer 8 RFC limitations and VE Miksic answered that he was, the ALJ 9 asked, 10 [C]ould you say that again? 11 thought I was on the same wave length but I just want to 12 be sure I understand your argument. 13 (AR 389.) You kind of lost me. I Counsel then explained his position further, and the 14 ALJ responded that it was a creative argument. 15 the ALJ did all that was required of her. (Id.) Thus, Accordingly, remand is 16 not warranted on this ground. 17 VI. CONCLUSION 18 For the reasons stated above, Plaintiff s motion for summary 19 judgment is DENIED, Defendant s motion for summary judgment is 20 GRANTED, the decision of the Social Security Commissioner is 21 AFFIRMED, and the action is DISMISSED with prejudice. 22 23 24 DATED: February 21, 2012 25 JEAN ROSENBLUTH U.S. MAGISTRATE JUDGE 26 27 28 13

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