Annie B Powell v. Michael J Astrue, No. 2:2012cv11044 - Document 15 (C.D. Cal. 2013)

Court Description: MEMORANDUM OF DECISION by Magistrate Judge Andrew J. Wistrich. The Commissioners decision is affirmed. IT IS SO ORDERED. (mz)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 13 14 15 16 17 ANNIE B. POWELL, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN1, ) Acting Commissioner of the Social ) Security Administration, ) ) Defendant. ) ) _____________________________________) Case No. CV 12-11044 AJW MEMORANDUM OF DECISION 18 Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the 19 Social Security Administration (the Commissioner ), denying plaintiff s application for supplemental 20 security income ( SSI ) benefits. The parties have filed a Joint Stipulation ( JS ) setting forth their 21 contentions with respect to each disputed issue. 22 Administrative Proceedings 23 Plaintiff filed her application for benefits in April 2009, alleging that she had been disabled since 24 November 18, 2008. [JS 2]. Plaintiff s application was denied. [JS 2; Administrative Record ( AR ) 87- 25 91]. Plaintiff requested an administrative hearing, which was conducted before an administrative law judge 26 (the ALJ ) on February 2, 2011. [AR 46]. Plaintiff was represented by counsel during the hearing and 27 28 1 Carolyn W. Colvin is substituted as defendant in place of her predecessor in office, Michael J. Astrue. See Fed. R. Civ. P. 25(d). 1 testified on her own behalf. [AR 48-73]. Testimony also was received from a vocational expert. [AR 73- 2 79]. In an April 23, 2011 written hearing decision that constitutes the Commissioner s final decision in this 3 case, the ALJ found that plaintiff had severe impairments consisting of left shoulder pain-sprain; left ankle 4 pain, post surgery; and migraine headaches by history. [JS 2-3; AR 29]. The ALJ further found that plaintiff 5 retained the residual functional capacity ( RFC ) to perform a restricted range of light work, and that her 6 RFC did not preclude her from performing her past relevant work as a security guard. [AR 30-31, 33-34]. 7 Accordingly, the ALJ concluded that plaintiff was not disabled through the date of his decision. The 8 Appeals Council denied plaintiff s request for review. [AR 1, 5-7]. 9 Standard of Review 10 The Commissioner s denial of benefits should be disturbed only if it is not supported by substantial 11 evidence or is based on legal error. Stout v. Comm r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 12 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). Substantial evidence means more than 13 a mere scintilla, but less than a preponderance. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 14 2005). It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 15 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (internal quotation marks omitted). The court is 16 required to review the record as a whole and to consider evidence detracting from the decision as well as 17 evidence supporting the decision. Robbins v. Soc. Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); 18 Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). Where the evidence is susceptible to more than 19 one rational interpretation, one of which supports the ALJ s decision, the ALJ s conclusion must be upheld. 20 Thomas, 278 F.3d at 954 (citing Morgan v. Comm r, Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999)). 21 Discussion 22 Past relevant work 23 Plaintiff contends that the ALJ s finding that plaintiff s RFC did not preclude performance of her 24 past relevant work as a security guard is not supported by substantial evidence. [JS 4-11, 15-16]. 25 A social security disability claimant bears the burden of proving that she cannot perform either the 26 actual functional demands and job duties of a particular past relevant job or the functional demands and 27 job duties of the occupation as generally required by employers throughout the national economy. Pinto 28 v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001) (quoting Social Security Ruling ( SSR ) 82-62, 1982 WL 2 1 31386); see also Burch, 400 F.3d at 679; Villa v. Heckler, 797 F.2d 794, 798 (9th Cir. 1986). The ALJ s 2 obligation is to make the requisite factual findings to support the conclusion that the claimant can perform 3 past relevant work. This is done by looking at the residual functional capacity and the physical and mental 4 demands of the claimant s past work. Pinto, 249 F.3d at 844-845 (quoting 20 C.F.R. §§ 404.1520(e) and 5 416.920(e)). Information from the Dictionary of Occupational Titles ( DOT ) or the testimony of a 6 vocational expert may be used to ascertain the demands of an occupation as ordinarily required by 7 employers throughout the national economy at steps four and five of the sequential evaluation procedure. 8 See SSR 00-4p, 2000 WL 1898704, at *2. Further, [t]he claimant is in the best position to describe just 9 what he or she did in [past relevant work], how it was done, what exertion was involved, what skilled or 10 semiskilled work activities were involved, etc. See SSR 82-41, 1982 WL 31389, at *4. 11 A vocational expert testified that plaintiff s past work as a security guard corresponded to DOT 12 occupational classification number 372.667-034. [AR 75]. He testified that this job is performed at the light 13 exertional level. The expert also explained that the DOT classifies this work as having a Specific 14 Vocational Preparation 32, but that he believed the work could also be performed as SVP 2, or even SVP 15 1, which is unskilled work. [AR 75, 79]. The ALJ posed a question about a hypothetical person who could 16 perform light work with the additional restrictions that the person could not climb ladders, ropes and 17 scaffolds, but could occasionally climb stairs and ramps, and occasionally stoop, kneel, crouch, crawl and 18 balance. [AR 76]. The ALJ further described the hypothetical person as someone who is right-hand 19 dominant, who can frequently push or pull with the left upper extremity, and who can occasionally lift and 20 reach with the left upper extremity but not over the shoulder level. [AR 76]. Finally, the ALJ limited the 21 hypothetical person from exposure to hazardous machinery, unprotected heights, or other high-risk 22 23 2 24 25 26 27 28 Specific Vocational Preparation ( SVP ) is a term of art used in the DOT to classify how long it generally takes to learn the job. Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990). SVP is defined as the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation. DOT, Appendix C. The DOT defines SVP 1 as [s]hort demonstration only, SVP 2 as [a]nything beyond short demonstration up to and including 1 month, and SVP 3 as [o]ver 1 month up to and including 3 months. DOT, Appendix C. Using the skill level definitions in 20 C.F.R. 404.1568 and 416.968, unskilled work corresponds to an SVP of 1-2; [and] semi-skilled work corresponds to an SVP of 3-4 . . . . SSR 00-4p, 2000 WL 1898704, at *3. 3 1 hazardous or unsafe conditions. [AR 76]. The vocational expert testified that the hypothetical person could 2 perform plaintiff s past relevant work as a security guard generally and as actually performed. [AR 76]. 3 The ALJ asked the vocational expert to tell him if his testimony conflicted with the DOT. The vocational 4 expert indicated that the only deviation was his explanation that he believed the job could be obtained at 5 a lower SVP. [AR 79]. The ALJ accepted this testimony and added that plaintiff could perform her past 6 relevant work at SVP level 3 because she had undergone formal training to be certified by the State of 7 California to perform that work and she had obtained her Guard Card. [AR 53-54, 75]. 8 The vocational expert s testimony in response to a hypothetical question incorporating all of the 9 limitations the ALJ ultimately included in his RFC finding was substantial evidence supporting the ALJ s 10 step-four finding. See Bayliss, 427 F.3d at 1218 ( A vocational expert s recognized expertise provides the 11 necessary foundation for his or her testimony. Thus, no additional foundation is required. ). The ALJ also 12 permissibly relied on plaintiff s testimony and earning records to support the determination that she could 13 perform her past relevant work as actually performed. [JS 34]. While the ALJ did not describe plaintiff s 14 testimony regarding her past relevant work in his discussion of step four, it is clear that the ALJ was 15 referencing the detailed analysis of plaintiff s testimony that the ALJ provided in support of his credibility 16 determination. [AR 34]. Specifically, plaintiff testified she worked as a security guard at Securitas Security 17 Services USA ( Securitas ) from 2008 to 2009, and that she stopped working there because her employer 18 would not reassign her when she returned after a medical leave. [AR 53]. Plaintiff said that she took two 19 or three weeks of medical leave, and when she returned to work, they wouldn t put me back on the post. 20 [AR 72; see also AR 53]. Plaintiff testified that she was not sure of the reason she had been on medical 21 leave, but that it could have been when I twisted my ankle or when I was sick with the flu or whatever it 22 was that had me down. [AR 72]. She said that her employer did not give her a specific reason for not 23 reassigning her, but that she th[ought] it was missing too many days at work, you know, even though I was 24 still seeing a doctor, still, you know, I wasn t there enough to do what they wanted me to do. [AR 72-73]. 25 Plaintiff testified that after she stopped working at Securitas, she looked for other jobs in security and for 26 customer service and warehouse jobs, putting in anything I could put in. [AR 53]. Plaintiff also testified 27 that was still actively looking for work at the time of the hearing, and that she had applied for a job at a 28 Target warehouse just the week before. [AR 53-54]. She said that she had submitted an application for 4 1 warehouse or assembly line work but would take whatever I can get. [AR 54]. When the ALJ inquired 2 whether plaintiff would go back to Securitas if they asked her to come back to work, she replied that she 3 would renew her Guard Card and she surely will go back. [AR 67]. 4 Plaintiff s testimony about her past work as a security guard and her active attempts to return to that 5 (or any) job supports the inference that she could still perform her past relevant work as actually performed. 6 Therefore, the ALJ did not err in relying on that evidence along with other substantial evidence in the record 7 to conclude that plaintiff was not precluded from performing her past security guard job as actually 8 performed. [AR 53, 71-73; see also AR 135, 143, 146 (earnings records), 259 (plaintiff s statement to an 9 examining physician that she worked in security until she was fired ), 308 (plaintiff s statement to a 10 treating physician that she was laid off )]. See Courter v. Comm r, Soc. Sec. Admin., 479 F. App x 713, 11 722 (6th Cir. 2012) (holding that the ALJ properly found that the claimant could perform her past relevant 12 work based on her admission that she was still capable of performing that work); Kimble v. Colvin, 2013 13 WL 1290651, at *10 (E.D. Wash. Mar. 27, 2013) (holding that the plaintiff could meet the demands of her 14 past relevant work as a housekeeper where she admitted that she performed various housekeeping jobs for 15 over one year, but reversing because the ALJ failed to establish whether that work amounted to substantial 16 gainful activity); Rodriguez v. Astrue, 2009 WL 2750071, at *5 (D. Idaho Aug. 25, 2009) (holding that 17 substantial evidence supported the ALJ s determination that the claimant could perform her past relevant 18 work as a fast food worker where she worked at McDonald s for 17 years, and said that she can work at her 19 own pace and could return to McDonald s if they asked her to come back). 20 Plaintiff contends that the position of security guard requires frequent reaching but that the ALJ 21 found that she can only occasionally reach with her left arm, and cannot reach with that arm over her 22 shoulder. [AR 8-9]. The ALJ correctly noted in his decision that the DOT job of security guard requires 23 frequent reaching. [AR 34]. See DOT, 372.667-034, 1991 WL 673100. However, the DOT does not 24 specify that frequent reaching requires the use of both arms. DOT, 372.667-034, 1991 WL 673100; see 25 Carey v. Apfel, 230 F.3d 131, 146 (5th Cir. 2000) (stating that the DOT does not contain any requirement 26 of bilateral fingering ability or dexterity . . . . ). In the RFC, which plaintiff does not challenge except as 27 discussed below, the ALJ took plaintiff s left extremity limitations into consideration [AR 31], and found 28 that she was able to perform the security guard job because she was still capable of frequent reaching with 5 1 her right upper extremity. [AR 34]. Plaintiff has failed to establish that this was error. See Carey, 230 F.3d 2 at 146 (holding that a vocational expert s testimony that the claimant could perform work as cashier or ticket 3 seller notwithstanding amputation of his non-dominant left hand was not inconsistent with the DOT s 4 requirement of occasional or frequent handling and fingering for those jobs because the DOT does not 5 require bilateral manual dexterity); Landrum v. Colvin, 2013 WL 3819675, at *6 (C.D. Cal. July 23, 2013) 6 (rejecting the argument that the claimant could not perform jobs that require frequent reaching due to 7 limitations in his ability to reach overhead with his right extremity because the DOT did not require frequent 8 reaching with both arms, and the record showed that claimant had no limitation with his left arm); Palomares 9 v. Astrue, 887 F. Supp. 2d 906, 920 (N.D. Cal. 2012) (holding that where the vocational expert testified that 10 his answers were consistent with the DOT and specifically considered the evidence indicating that the 11 claimant had reaching and lifting limitations on his left side only, there was no conflict between the 12 vocational expert s testimony that a person so limited could perform a DOT job that required constant 13 reaching because the DOT does not require constant reaching with both arms, and collecting cases); 14 Diehl v. Barnhart, 357 F. Supp. 2d 804, 809, 822 (E.D. Pa. 2005) (noting that the vocational expert testified 15 that security guard jobs are generally cited for individuals who have limited upper extremity use to one 16 arm, and holding that there was no material conflict between the DOT and the vocational expert s 17 testimony that a person who could occasionally use his dominant right upper extremity and frequently use 18 his left upper extremity could perform DOT jobs that require frequent reaching, including the job of security 19 guard). 20 Plaintiff also contends that the ALJ did not properly ascertain the demands of her former work and 21 then compare the demands with her present capacity. [JS 5-6]. However, the ALJ specifically stated that 22 in comparing the [plaintiff s RFC] with the physical and mental demands of [security guard] work, the 23 undersigned finds that the claimant is able to perform it as actually and generally performed. [AR 34]. 24 Contrary to plaintiff s assertion, it was not impossible for the ALJ to make this comparison based on the 25 evidence in the record. [JS 9-10]. As noted above, the ALJ could properly rely on plaintiff s own 26 statements and testimony that she could perform the demands of her previous work as she actually 27 performed it, and that she was seeking to return to the same work at the time of the hearing. See Tate v. 28 Astrue, 2012 WL 4005976, at *6 (S.D. Cal. Sept. 11, 2012) (rejecting the argument that the ALJ did not 6 1 include specific and detailed findings regarding plaintiff s actual past relevant work and her limitations on 2 repetitive fingering in determining her past relevant work as a cashier where the claimant testified at the 3 hearing that she worked as a cashier in two previous jobs); Bustos v. Astrue, 2012 WL 5289311, at *8 (E.D. 4 Cal. Oct. 23, 2012) (holding that the ALJ did not err in finding that the claimant could perform his past 5 relevant work where the ALJ relied on the vocational expert s testimony in response to a hypothetical that 6 reflected the RFC finding, and the claimant essentially conceded at the administrative hearing that he could 7 do his past relevant work). 8 Nonexamining physician s opinion 9 Plaintiff contends that the ALJ improperly ignored a limitation to standing and walking for four 10 hours found in the opinion of nonexamining state agency physician M. Bayar, M.D. [JS 16-18, 20]. 11 As mentioned, the ALJ found plaintiff had an RFC with a restricted range of light work, which 12 included the ability to stand and walk up to six hours in an eight hour work day. [AR 30]. In making this 13 determination, the ALJ stated that he relied in part on an August 12, 2009 state agency consultative 14 examination by Dr. Adi Klein. Dr. Klein opined that plaintiff could perform the exertional requirements 15 of light work with certain nonexertional limitations. Dr Klein s opinion expressly included the ability to 16 sit, stand, or walk for six hours in an eight-hour workday. [AR 263]. 17 The ALJ also said that he relied on an August 27, 2009 nonexamining RFC assessment by Dr. Bayar. 18 [AR 33]. Dr. Bayar s functional assessment was nearly identical to Dr. Klein s evaluation, but included 19 additional postural limitations, and, as relevant here, a limitation to standing and walking four hours in an 20 eight-hour workday. [AR 266-267; JS 16, 18]. 21 In summarizing this evidence the ALJ stated that Dr. Klein s opinion was based upon clinical data 22 and diagnostic findings gathered during the evaluation, and added that Dr. Klein s credentials, training, and 23 experience as a board-certified internist bolstered the reliability of his opinion. [AR 33]. The ALJ stated 24 he gave generous weight to Dr. Bayar s assessment as well, given . . . [his] review of the medical records 25 available at the time and its consistency with Dr. Klein s report. [AR 33]. The ALJ further stated that Dr. 26 Bayar also appropriately extended [plaintiff] the benefit of the doubt in finding that greater functional 27 limitations are reasonably supported in this case and incorporated Dr. Bayar s occasional postural 28 limitations into the RFC. [AR 30, 33, 263, 267]. However, the ALJ did not mention Dr. Bayar s limitation 7 1 to four hours of standing and walking, and did not include it in his hypothetical to the vocational expert or 2 in the RFC. [AR 30-31, 76]. 3 Plaintiff contends that the ALJ erred in ignoring the four-hour limitation that appears in Dr. Bayar s 4 assessment. Plaintiff argues that this additional two hour limitation difference between the RFC and Dr. 5 Bayar s standing and walking limitation is important because it is doubtful plaintiff could perform her 6 past relevant work []as a security guard which entails among other responsibilities patrol[ing]. [JS 17- 7 18]. Further, it would impact her ability to do light work, which requires the ability to stand and/or walk 8 for six hours.3 [JS 20]. 9 An ALJ is not bound by any findings made by State agency medical or psychological consultants 10 but must consider and evaluate their findings using the relevant factors in paragraphs (a) through (e) of [20 11 C.F.R. §§ 404.1527, 416.927], such as the consultant s medical specialty and expertise in our rules, the 12 supporting evidence in the case record, supporting explanations the medical or psychological consultant 13 provides, and any other factors relevant to the weighing of the opinions, and must explain in the decision 14 the weight given to the opinions of a State agency medical or psychological consultant . . . . 20 C.F.R. 15 §§ 404.1527(f)(2)(i), 416.927(f)(2)(i); see also SSR 96-6p, 1996 WL 374180, at *1-*2; Sawyer v. Astrue, 16 303 F. App x. 453, 455 (9th Cir. 2008) ( An ALJ is required to consider as opinion evidence the findings 17 of state agency medical consultants; the ALJ is also required to explain in his decision the weight given to 18 such opinions. ). 19 The ALJ s failure to explicitly acknowledge or reject Dr. Bayar s standing and walking limitation 20 was not legal error. Dr. Bayar never examined plaintiff. If a physician does not examine the plaintiff, his 21 22 23 24 25 26 27 28 3 Light work involves lifting no more than twenty pounds at a time with frequent lifting or carrying of objects weighing up to ten pounds. Even though the weight lifted may be very little, a job is in this category when it 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. The full range of light work requires standing or walking, off and on, for a total of approximately six hours of an eight-hour workday. Sitting may occur intermittently during the remaining time. In addition, occasional bending from the waist is required to lift and carry objects. Unlike work at the medium level, frequent bending or stooping is not required for light work. Moreover, limitations in an individual s ability to climb, bend, kneel or crawl will not significantly erode the occupational base at either the light or medium level of exertion. See 20 C.F.R. §§ 404.1567(b), 416.967(b); SSR 85-15, 1985 WL 56857, at *6-*7; SSR 83-10, 1983 WL 31251, at *5-*6; SSR 83-14, 1983 WL 31254, at *4-*5. 8 1 opinion, based solely on documentary history and objective laboratory evidence can not, standing alone, 2 be afforded substantial weight. Lester v. Chater, 81 F.3d 821, 831-823 (9th Cir. 1995) (citing Gallant v. 3 Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984)). When supported by other evidence in the record, however, 4 the opinion of a non-examining physician may serve as substantial evidence. Andrews v. Shalala, 53 F.3d 5 1035, 1041 (9th Cir. 1995); Magallanes v. Bowen, 881 F.2d 747, 752 (9th Cir. 1989). Plaintiff has not cited 6 to any other evidence supporting Dr. Bayar s opinion that plaintiff was limited to four hours of standing and 7 walking. Dr. Klein, the only treating or examining physician to assess plaintiff s functional abilities, opined 8 that plaintiff could perform the exertional requirements of light work, including sitting, standing, and 9 walking for six hours in an eight-hour day. The ALJ discussed Dr. Klein s evaluation in detail and clearly 10 credited it. See Andrews, 53 F.3d at 1040-1041 (explaining that more weight is given to the opinions of 11 treating and examining physicians because they have a greater opportunity to know and observe the patient 12 as an individual). Dr. Klein based his opinion on his examination and on a review of [a]ll medical 13 documentation submitted, including an x-ray report and a CT scan report. [AR 262-263]. See 20 C.F.R. 14 §§ 404.1527(c)(4), 416.927(c)(4) ( Generally, the more consistent an opinion is with the record as a whole, 15 the more weight we will give to that opinion. ). 16 The ALJ explained he was giving weight to Dr. Bayar s nonexamining opinion based on its 17 consistency with Dr. Klein s opinion and Dr. Bayar s review of medical records available to him at the 18 time. [AR 33]. Dr. Bayar s opinion plainly is not consistent with Dr. Klein s opinion insofar as Dr. Bayar 19 limited plaintiff to four hours of standing and walking. The full range of light work requires the ability to 20 stand and walk, off and on, for six hours in an eight-hour day, and Dr. Klein unquestionably found that 21 plaintiff could do so. Limiting plaintiff to four hours of standing and walking is inconsistent with Dr. 22 Klein s opinion. Such a limitation also is inconsistent with the ALJ s finding that plaintiff can perform the 23 DOT job of security guard, which is light work. 24 It is true that Dr. Klein also found no postural limitations, and the ALJ nonetheless adopted Dr. 25 Bayar s occasional postural limitations in climbing ramps or stairs, balancing, stooping, kneeling, 26 crouching, or crawling. [AR 30-31, 267]. However, those occasional postural limitations were not 27 28 9 1 materially inconsistent with Dr. Klein s opinion because they do not significantly restrict the ability to 2 perform work at the light exertional level. See note 3, supra. 3 Although the ALJ s decision is not a model of clarity in this respect, an ALJ is not required to recite 4 [any] magic words to justify rejecting evidence, provided that the ALJ s grounds for doing so can 5 reasonably be inferred from his or her decision. Magallanes, 881 F.2d at 755 ( [O]ur cases do require such 6 an incantation. As a reviewing court, we are not deprived of our faculties for drawing specific and legitimate 7 inferences from the ALJ's opinion. It is proper for us to read the [ALJ s decision], and draw inferences 8 relevant to [the rejected evidence], if those inferences are there to be drawn. ); see also Batson v. Comm'r 9 of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004) ( [T]he Commissioner's findings are upheld if 10 supported by inferences reasonably drawn from the record, and if evidence exists to support more than one 11 rational interpretation, we must defer to the Commissioner's decision[.] ) (citing Gallant, 753 F.2d at 12 1452 1453; Morgan, 169 F.3d at 599). It can reasonably be inferred from the ALJ s written decision as a 13 whole that he permissibly rejected Dr. Bayar s four hour standing and walking limitation because that 14 limitation was not consistent with Dr. Klein s opinion that plaintiff could meet the exertional demands of 15 light work and lacked the support of other substantial evidence in the record. Accordingly, plaintiff s 16 contentions lack merit. Conclusion 17 18 For the reasons stated above, the Commissioner s decision is supported by substantial evidence and 19 reflects application of the proper legal standards. Accordingly, the Commissioner s decision is affirmed. 20 IT IS SO ORDERED. 21 22 23 24 December 19, 2013 _____________________________ ANDREW J. WISTRICH United States Magistrate Judge 25 26 27 28 10

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