Tony L Grigsby v. Michael J Astrue, No. 2:2012cv07062 - Document 18 (C.D. Cal. 2013)
Court Description: MEMORANDUM AND OPINION by Magistrate Judge Victor B. KentonThe Memorandum Opinion will constitute the Court's findings of fact and conclusions of law. After review the matter, the Court reject's Plaintiff's single issue asserting grounds for relief, and, finding that the Decision is supported by substantial evidence, affirms the ALJ's Decision and orders the case dismissed with prejudice. (rh) (rh)
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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 TONY L. GRIGSBY, 12 13 14 Plaintiff, v. 15 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 12-07062-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 issues: 28 1. Whether the Administrative Law Judge ( ALJ ) should have 1 obtained vocational expert testimony. (JS at 3.) 2 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 WAS NOT REQUIRED TO OBTAIN VOCATIONAL EXPERT TESTIMONY 9 Plaintiff contends that in this case the ALJ erred by not 10 obtaining vocational expert ( VE ) testimony, particularly with regard 11 to the impact on the job base of non-exertional impairments. 12 In determining Plaintiff s residual functional capacity ( RFC ), 13 the ALJ accepted the most limiting elements of Plaintiff s 14 consultative examiner s opinions, and concluded that Plaintiff can 15 perform sedentary work with occasional lifting and carrying of objects 16 that weigh up to 20 pounds; standing and walking for no more than two 17 of eight hours, cumulatively; can no more than occasionally perform 18 postural changes; and can do no more than frequent reaching overhead 19 with either upper extremity. (AR 14.) 20 It should be noted that Plaintiff does not disagree with the RFC; 21 rather, it is Plaintiff s contention that after the ALJ concluded at 22 Step Four of the sequential evaluation process that he can no longer 23 do his prior relevant work, a VE was necessary to determine the impact 24 of 25 ultimately, whether Plaintiff could perform any full time work. Plaintiff s non-exertional impairments on the job base, and 26 27 A. Applicable Law. 28 Once Plaintiff has established that he is unable to return to his 2 1 past relevant work, the burden shifts to the Commissioner to establish 2 whether there are other jobs which exist in significant numbers which 3 Plaintiff 4 functional capacity, and vocational profile. 5 meet this burden either by utilizing the Medical Vocational Guidelines 6 ( Grids ) in Appendix 2, Subpart P, 20 C.F.R. Part 404 or by calling 7 upon the services of a vocational expert. 8 1094, 1101 (9th Cir. 1999). can perform, considering his age, education, residual The Commissioner can Tackett v. Apfel, 180 F.3d 9 Pertinent principles regarding application of the Grids are 10 articulated by the Ninth Circuit in Polny v. Bowen, 864 F.2d 661 (9th 11 Cir. 1988), where the following discussion ensued: 12 The major issue on appeal is whether the 13 administrative law judge erred in applying the grids in this 14 case where the applicant s impairment was not exertional. 15 The 16 nonexertional restriction and so the application of the 17 grids was appropriate. 18 (9th Cir.), modified 794 F.2d 1348 (1986), we held that where 19 an 20 limitations the use of the grids was permissible. 21 decision, in accord with other authority - e.g., Lebron v. 22 Secretary of Health and Human Services, 747 F.2d 818 (1st 23 Cir. 1984) - recognizes the force of the Secretary s own 24 regulations which state that the grids apply where an 25 individual has a combination of impairments resulting in 26 both strength limitations and nonexertional limitations. 27 20 C.F.R. Pt. 404, Subpt. P, App. 2, §200.00(e)(2). 28 Secretary applicant argues had that Polny had no significant In Razey v. Heckler, 785 F.2d 1426 both exertional (864 F.2d at 663.) 3 and nonexertional That 1 In Desrosiers v. Secretary of Health and Human Services, 846 F.2d 2 573, 576-577 (9th Cir. 1988), the Court held that Social Security law 3 does not preclude application of the Grids in cases which present non- 4 exertional 5 claimant s non-exertional limitations significantly limit the range of 6 work permitted by her exertional limitations. (Id. at 577.) 7 The limitations: Commissioner s The own ALJ should regulations first and determine rulings if are a also 8 consistent in defining the scope and limits of the applicability of 9 the Grids. 10 In Social Security Ruling ( SSR ) 83-14, the following illustrative discussion is found: 11 Section 200.00(e)(2) of Appendix 2 provides that, 12 where an individual has an impairment or combination of 13 impairments resulting in both strength limitations and 14 nonexertional limitations, the rules in this subpart are 15 considered 16 disabled may be possible based on the strength limitations 17 alone and, if not, the rule(s) reflecting the individual s 18 maximum residual strength capabilities, age, education, and 19 work experience provide a framework for consideration of how 20 much the individual s work capability is further diminished 21 in terms of any types of jobs that would be contraindicated 22 by 23 combinations of nonexertional and exertional limitations 24 which cannot be wholly determined under the rules in this 25 Appendix 2, full consideration must be given to all of the 26 relevant 27 definitions 28 appropriate sections of the regulations, which will provide the in determining nonexertional facts and in the first whether limitations. case discussions 4 in of a finding Also, accordance each factor in of these with the in the 1 insight into the adjudicative weight to be accorded each 2 factor. 3 (SSR 83-14.) 4 5 SSR 83-14 also notes that: 6 A particular additional exertional or nonexertional 7 limitation may have very little effect on the range of work 8 remaining that an individual can perform. 9 therefore, comes very close to meeting a table rule which The person, 10 directs a conclusion of Not disabled. 11 an additional exertional or nonexertional limitation may 12 substantially reduce a range of work to the extent that an 13 individual is very close to meeting a table rule which 14 directs a conclusion of Disabled. 15 On the other hand, (SSR 83-14.) 16 17 Numerous examples are provided in the regulations. In SSR 83-14, 18 for example, it is noted that in jobs at the medium level of exertion, 19 there would be more of a likelihood of a requirement to ascend or 20 descend ladders and scaffolding, to kneel, and crawl, but limitations 21 of these activities would not significantly affect the occupational 22 base. 23 exertional limitations or restrictions have very little effect on the 24 exertional occupational base, the conclusions directed by the Grids 25 would 26 significantly eroded the exertional job base, it is directed that the 27 remaining portion of the job base will guide the decision. 28 where the adjudicator does not have a clear understanding of the SSR 83-14 notes that where it is clear that additional non- not be affected. In cases 5 where such limitations have It is only 1 effects of additional limitations on the job base, [that] the services 2 of a VS [vocational expert] will be necessary. (SSR 83-14.) 3 4 B. 5 The existence of nonexertional impairments does not, per se, 6 Analysis. require that the ALJ elicit testimony from a VE. 7 See, Applicable Law, supra, and Bates v. Sullivan, 894 F.2d 1059, 8 1063 (9th Cir. 1990); Desrosiers v. Sec y of Health & Human Srvs, 846 9 F.2d 573, 577 (9th Cir. 1988). 10 Here, the ALJ found that Plaintiff could perform the exertional 11 requirements for sedentary work. (AR 12.) 12 requirements of sedentary work found at 20 CFR § 416.967(a), it is 13 noted that this is work primarily performed in a seated position with 14 occasional 15 assessed in Plaintiff s case by the ALJ were that he could no more 16 than occasionally perform postural changes and could no more than 17 frequently reach overhead from either upper extremity. (AR 12.) 18 question, then, is whether substantial evidence supports the ALJ s 19 conclusion that neither of these two nonexertional limitations was of 20 a level of severity that would require input from a VE. standing and walking. The Utilizing the exertional nonexertional limitations The 21 With regard to the limitation to no more than occasional postural 22 changes, both the Commissioner and the Dictionary of Occupational 23 Titles ( DOT ) define occasional as an activity or a condition that 24 exists up to one-third of the time. (See SSR 840-10.) 25 changes, 26 crouching and crawling. these include climbing, balancing, As to postural stooping, kneeling, See 20 CFR § 416.969a(C)(vi); SSR 840-14). 27 Sedentary jobs require that the individual perform tasks mostly 28 in a seated position with limited walking and standing, and the 6 1 regulations provide that postural movements are not usually required 2 and any limitations on postural movements would not usually erode an 3 occupational base for sedentary work. (See 4 sedentary work is performed primarily in a seated position, no 5 significant 6 limitation in the nonexertional area did not significantly limit the 7 availability of sedentary work. stooping is required. Thus, SSR 96-7p.) Plaintiff s Since postural 8 Further, a limitation to occasional performance of nonexertional 9 tasks does not amount to a level of severity which would typically 10 erode the occupational base. 11 With regard to the nonexertional limitation to no more than 12 frequent reaching overhead with either upper extremity, the 13 Commissioner and DOT define frequent as an activity or condition 14 which exists from one-third to two-thirds of the time. (See SSR 83- 15 10.) 16 any work at or above his shoulder level. 17 overhead 18 significance that would erode the occupational base and thus might 19 require testimony from the VE. (See SSR 83-14.) Plaintiff is not an individual who is incapable of performing reaching does not amount to A limitation to frequent a level of severity or 20 In sum, the nonexertional limitations which the ALJ found, and 21 with which Plaintiff does not disagree, are not of such severity as to 22 have either required the ALJ to seek the testimonial assistance of a 23 VE, or which would have precluded reliance on the Medical Vocational 24 Guidelines, 20 CFR Part 404, Subpt, B, Appendix 2 (the Grids ). 25 Because the ALJ correctly and permissibly relied upon the Grids, which 26 directed a finding of non-disability, the ALJ was not required to 27 specifically identify other jobs at Step Five of the sequential 28 evaluation process. See Odle v. Heckler, 707 F.2d 439, 440 (9th Cir. 7 1 1983). 2 For the foregoing reasons, the Court rejects Plaintiff s single 3 issue asserting grounds for relief, and, finding that the Decision is 4 supported by substantial evidence, affirms the ALJ s Decision and 5 orders the case dismissed with prejudice. 6 IT IS SO ORDERED. 7 8 9 DATED: June 18, 2013 /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 8
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