Melvin Harris v. Michael J Astrue, No. 5:2008cv01440 - Document 16 (C.D. Cal. 2009)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Oswald Parada. IT THEREFORE IS ORDERED that Judgment be entered affirming the decision of the Commissioner, and dismissing this action with prejudice. (see document for specifics) (mrgo)
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1 2 3 4 5 6 -O- 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 20 21 MELVIN HARRIS, ) Case No. EDCV 08-1440-OP ) Plaintiff, ) v. ) MEMORANDUM OPINION; ORDER ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ) The Court1 now rules as follows with respect to the disputed issues listed in the Joint Stipulation ( JS ).2 /// /// /// I. 22 23 1 24 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the United States Magistrate Judge in the current action. (See Dkt. Nos. 7, 8.) 25 2 As the Court advised the parties in its Case Management Order, the decision in this case is being made on the basis of the pleadings, the Administrative 27 Record, and the Joint Stipulation filed by the parties. In accordance with Rule 28 12(c) of the Federal Rules of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g). 26 1 1 DISPUTED ISSUES 2 As reflected in the Joint Stipulation, the disputed issues which Plaintiff 3 raises as the grounds for reversal and/or remand are as follows: 4 1. 5 6 the record regarding Plaintiff s mental impairment; 2. 7 8 Whether the ALJ considered the severity of Plaintiff s mental impairment; 3. 9 10 Whether the Administrative Law Judge ( ALJ ) properly developed Whether the ALJ considered the mental and physical demands of Plaintiff s past relevant work; and 4. 11 Whether the ALJ appropriately established that Plaintiff could perform the jobs of electronics worker and bench assembler. 12 (JS at 2-3.) 13 II. 14 STANDARD OF REVIEW 15 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s decision 16 to determine whether the Commissioner s findings are supported by substantial 17 evidence and whether the proper legal standards were applied. DeLorme v. 18 Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means more 19 than a mere scintilla but less than a preponderance. Richardson v. Perales, 402 20 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Desrosiers v. Sec y of 21 Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial 22 evidence is such relevant evidence as a reasonable mind might accept as adequate 23 to support a conclusion. Richardson, 402 U.S. at 401 (citation omitted). The 24 Court must review the record as a whole and consider adverse as well as 25 supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). 26 Where evidence is susceptible of more than one rational interpretation, the 27 Commissioner s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 28 (9th Cir. 1984). 2 1 III. 2 DISCUSSION 3 A. The ALJ Fully and Fairly Developed the Record. 4 Plaintiff contends that the ALJ failed to properly develop the record by 5 failing to obtain a psychiatric or psychological evaluation of Plaintiff to assess his 6 mental impairment. (JS at 3-4.) The Court disagrees. 7 The ALJ has an independent duty to fully and fairly develop a record in 8 order to make a fair determination as to disability, even where, as here, the 9 claimant is represented by counsel. Celaya v. Halter, 332 F.3d 1177, 1183 (9th 10 Cir. 2003); see also Tonapetyan v. Halter, 242 F.3d, 1144, 1150 (9th Cir. 2001); 11 Crane v. Shalala, 76 F.3d 251, 255 (9th Cir. 1996). The duty is heightened when 12 the claimant is unrepresented or is mentally ill and thus unable to protect her own 13 interests. Celaya, 332 F.3d at 1183; Higbee v. Sullivan, 975 F.2d 558, 562 (9th 14 Cir.1992); see also Burch v. Barnhart, 400 F.3d 676, 682-83 (9th Cir. 2005) 15 (distinguishing Burch from Celaya at least in part, based on the fact that the 16 plaintiff in Burch was represented by counsel). Ambiguous evidence, or the ALJ s 17 own finding that the record is inadequate to allow for proper evaluation of the 18 evidence, triggers the ALJ s duty to conduct an appropriate inquiry. See 19 Tonapetyan, 242 F.3d at 1150. 20 Here, the record contains no ambiguous or inadequate evidence regarding 21 Plaintiff s mental impairment, as there is no credible evidence to support the 22 alleged mental impairments. As a result, the ALJ s duty to develop the record as to 23 ambiguous evidence is not triggered. See Tonapetyan, 242 F.3d at 1150; see also 24 Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001). The ALJ noted that 25 [u]nder direct and leading questioning by his representative, the claimant agreed 26 he has concentration problems due to pain and feels depressed. (AR at 14, 28-29) 27 Plaintiff, nevertheless, testified that he never received any mental health treatment 28 during the relevant period. (Id. at 29.) Additionally, Plaintiff applied for disability 3 1 insurance benefits alleging that he was unable to work due to a herniated disc2 back injury. (Id. at 44, 72.) There is no indication that Plaintiff alleged any 3 mental impairments in his application for disability benefits. (Id.) 4 Moreover, the objective medical evidence, including the treating and 5 consultative examiners opinions, does not support a finding of an alleged mental 6 impairment, or any functional limitations due to Plaintiff s cognitive functioning. 7 The only evidence suggesting a mental impairment is Plaintiff s testimony, elicited 8 by his attorney, claiming he suffered from crying spells, concentration issues, and 9 depression. (Id. at 28-29.) The ALJ, however, properly discounted Plaintiff s 10 credibility based on discrepancies between Plaintiff s complaints and the objective 11 medical evidence, and the implausibility of Plaintiff s daily activities.3 (Id. at 1312 15.) Despite the negative credibility finding, the ALJ still provided Plaintiff s 13 subjective complaints with generous consideration and significant weight. 4 14 (Id. at 14.) 15 Finally, the record was adequate for the ALJ to adjudicate Plaintiff s 16 disability application, as the ALJ relied upon the objective medical evidence, 17 including the findings of the treating and consultative examiners, and Plaintiff s 18 testimony. (AR at 10-17.) Thus, Plaintiff fails to explain how the medical record 19 was ambiguous or inadequate regarding his alleged mental impairments. See 20 21 3 Plaintiff does not dispute the ALJ s credibility finding. Thus, the Court 22 will not address that issue 23 4 Even assuming that the ALJ improperly discounted Plaintiff s credibility, 24 Plaintiff fails to allege disabling impairments that have lasted or can be expected to 25 last for a continuous period of not less than twelve months. See 20 C.F.R. § 404.1505(a) (Under the regulations, a person is disabled if he is unable to engage 26 in any substantial gainful activity by reason of any medically determinable 27 physical or mental impairment which can be expected to result in death or which 28 has lasted or can be expected to last for a continuous period of not less than twelve months ); see also Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998). 4 1 Mayes, 276 F.3d at 458 (citing 42 U.S.C. § 423(d)(5) (Supp. 2001) and Clem v. 2 Sullivan, 894 F.2d 328, 330 (9th Cir. 1990)) (plaintiff has a duty to prove that she 3 is disabled). 4 Plaintiff cites to Regennitter v. Commissioner of the Soc. Sec. Admin, 166 5 F.3d 1294, 1299-1300 (9th Cir. 1999), and Nguyen v. Chater, 100 F.3d 1462, 6 1464-65 (9th Cir. 1996), for the proposition that an ALJ may not reject a plaintiff s 7 claim of mental impairment for lack of treatment. (JS at 4.) However, both of 8 these cases addressed plaintiffs who had been diagnosed with mental impairments 9 with supporting medical evidence of such impairments. See id. There is no 10 indication in the record that any of Plaintiff s treating or consultative physicians 11 diagnosed Plaintiff with any mental impairment. Thus, the ALJ did not err in 12 finding that no evidence of a medically determinable mental impairment exists 13 here. 14 Based on the foregoing, the Court finds that the ALJ fully and fairly 15 developed the record with respect to Plaintiff s alleged mental impairments. Thus, 16 there was no error. 17 B. The ALJ Did Not Err by Failing to Consider the Severity of Plaintiff s 18 Alleged Mental Impairment. 19 Plaintiff contends that the ALJ failed to properly consider the severity of his 20 mental impairment. (JS at 7-8.) As stated above, the ALJ was not required to 21 develop the record further regarding Plaintiff s alleged mental impairment, as 22 Plaintiff offered no objective or credible evidence of any mental impairment. See 23 supra, Discussion Part III.A. Accordingly, the Court finds that the ALJ did not err 24 by failing to consider the severity of Plaintiff s alleged mental impairment. 25 / / / 26 / / / 27 C. The ALJ s Error to Consider the Mental and Physical Demands of 28 5 1 Plaintiff s Past Relevant Work Was Harmless. 2 Plaintiff argues that the ALJ s determination that Plaintiff was capable of 3 performing his past relevant work as a security guard was erroneous because the 4 ALJ failed to properly consider the mental and physical demands of his past 5 relevant work. (JS at 8-12.) 6 1. Background. 7 In his disability application, Plaintiff reported that he had worked as a 8 general laborer and security guard. (AR at 73-74.) At the hearing, the ALJ 9 engaged in the following dialogue with the vocational expert ( VE ): 10 ALJ: Assuming a hypothetical individual of claimant s age, education, 11 prior work experience. [sic] Assume this person can lift and carry 20 12 pounds occasionally, 10 pounds frequently, stand and walk 4 hours out 13 of an 8 hour day, sit 8 hours out of an 8 hour day, no pushing or pulling 14 with the legs, no vibration, occasional climbing, no balancing, occasional 15 stooping, kneeling, crouching, and crawling. First question, could such 16 a hypothetical individual perform any of claimant s past work? 17 VE: Well, I think that security [guard] could be performed with eroded 18 numbers, eroding at 90 percent and that would be because of the less 19 than full range of light [work]. That would be the erosion. 20 ALJ: What would the numbers be? 21 VE: 90 percent erosion after the erosion, there would be 3,000 positions 22 in the region and more than 500,000 nationally? 23 ALJ: How many? 24 VE: No, that s not correct. . . . 50,000 nationally. 25 ALJ: With regard to security guards, are there some security guard 26 positions where the security guard is sitting most of the time? 27 VE: Yes, in construction site type environment. 28 6 1 ALJ: Is that - - the numbers you gave me, for that type of position or - - 2 VE: I was contemplating that kind of work, yes. 3 (Id. at 31-32.) 4 After the hearing and reviewing the record, the ALJ determined that Plaintiff 5 has the residual functional capacity ( RFC ) to perform light work, limited as 6 follows: 7 The claimant is limited to pushing and/pulling with his legs consistent 8 with lifting and/or carrying. He is further limited to occasional climbing, 9 stooping, kneeling, crouching, or crawling, and is precluded from 10 balancing and work around vibrations or vibrating machinery. 11 (Id. at 13.) The ALJ then determined that Plaintiff could perform his past relevant 12 work as a security guard, and that the job of security guard did not require the 13 performance of work-related activities precluded by his RFC. (Id. at 15.) The ALJ 14 stated: 15 I find that in accordance with SSR-00-4p the vocation expert s testimony 16 clearly resolves the question of the claimant s ability to work as a 17 security guard, the numbers of which are eroded by 90%, but not 18 precluded by the residual functional capacity adopted herein. 19 comparing the claimant s residual functional capacity with the physical 20 and mental demands of this work, I find that claimant is able to perform 21 it as is often performed. [The VE] testified that given all of these factors 22 the claimant would be able to perform the requirements of 10% of 23 security guard positions with 3,000 such positions in the regional 24 economy and 50,000 in the national economy. In 25 (Id. at 15.) 26 2. 27 At step four of the sequential evaluation process, a claimant must establish Applicable Law. 28 7 1 that his severe impairment or impairments prevent him from doing past relevant 2 work. Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001). The regulations 3 explain the step-four evaluation: 4 If we cannot make a decision based on your current work activity or on 5 medical facts alone, and you have a severe impairment(s), we then 6 review your residual functional capacity and the physical and mental 7 demands of the work you have done in the past. If you can still do this 8 kind of work, we will find that you are not disabled. 9 20 C.F.R. §§ 404.1520(e), 416.920(e). The claimant has the burden of showing 10 that he can no longer perform his past relevant work. 20 C.F.R. §§ 404.1520(e), 11 416.920(e); see also Clem v. Sullivan, 894 F.2d 328, 331-32 (9th Cir. 1990). 12 Although the burden of proof lies with the claimant, the ALJ still has a duty to 13 make requisite factual findings to support his conclusion as to whether plaintiff can 14 perform his past relevant work. See Pinto, 249 F.3d at 844 (despite the fact that 15 the claimant has the burden at step four, the ALJ is [not] in any way relieved of 16 his burden to make the appropriate findings to insure that the claimant really can 17 perform his or her past relevant work ); see also Henrie v. U.S. Dept. Of Health & 18 Human Serv., 13 F.3d 359 (10th Cir. 1993) (recognizing the tension created 19 between the mandate of SSR 82-62 and the claimant s burden of proof, and finding 20 that the ALJ s duty is one of inquiry and factual development while the claimant 21 continues to bear the ultimate burden of proving disability). 22 In order to determine whether a claimant has the RFC to perform his past 23 relevant work, the ALJ must evaluate the work demands of the past relevant work 24 and compare them to the claimant s present capacity. Villa v. Heckler, 797 F.2d 25 794, 797-98 (9th Cir. 1986). Social Security Ruling ( SSR )5 82-62 states that a 26 27 5 Social Security Rulings are issued by the Commissioner to clarify the 28 (continued...) 8 1 determination that a claimant has the capacity to perform a past relevant job must 2 contain among the findings the following specific findings of fact: (1) a finding of 3 fact as to the claimant s RFC; (2) a finding of fact as to the physical and mental 4 demands of the past job or occupation; and (3) a finding of fact that the claimant s 5 RFC permits him to return to the past job or occupation. See SSR 82-62; see also 6 Pinto, 249 F.3d at 844-45. 7 A finding that a claimant is able to return to his past relevant work must be 8 based on adequate documentation and a careful appraisal. Dealmeida v. Bowen, 9 699 F. Supp. 806, 807 (N.D. Cal. 1988) ( Without the proper foundation as to what 10 plaintiff s past relevant work entailed, the ALJ s subsequent determination that 11 plaintiff retained the residual functional capacity to perform that job is not 12 supported by substantial evidence. ). This determination requires a careful 13 appraisal of the claimant s statements, the medical evidence, and, in some cases, 14 corroborative information such as the Dictionary of Occupational Titles ( DOT ). 15 SSR 82-62. Adequate documentation must be obtained to support the decision, 16 including factual information about those work demands which have a bearing on 17 the medically established limitations. Id. Thus, [d]etailed information about . . . 18 mental demands and other job requirements must be obtained as appropriate. Id.; 19 see also Sivilay v. Apfel, 143 F.3d 1298, 1299 (9th Cir. 1998) (remanding to ALJ 20 to investigate fully the demands of the applicant s past work and compare them to 21 the applicant s residual mental and physical capabilities ). Any determination 22 regarding a claimant s ability to perform past work must be developed and 23 explained fully in the disability decision and every effort must be made to secure 24 25 (...continued) 26 Commissioner s regulations and policies. Bunnell v. Sullivan, 947 F.2d 341, 346 n.3 (9th Cir. 1991). Although they do not have the force of law, they are 27 nevertheless given deference unless they are plainly erroneous or inconsistent 28 with the Act or regulations. Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989). 9 1 evidence that resolves the issue as clearly and explicitly as circumstances permit. 2 SSR 82-62. 3 3. 4 In this case, the ALJ satisfied the first and third requirements above in that Analysis. 5 he made sufficiently specific findings of fact regarding Plaintiff s RFC,6 and that 6 Plaintiff s RFC permits him to return to his past work as a security guard. The 7 ALJ, however, failed to make the requisite findings of fact regarding the physical 8 and mental demands of Plaintiff s past work as a security guard. See SSR 82-62. 9 In support of his conclusion that Plaintiff is capable of performing his past 10 relevant work as a security guard, the ALJ relied upon the testimony of the VE that 11 an individual with the same vocational factors and RFC as Plaintiff could perform 12 work as a security guard. (AR at 15, 31-32.) Given Plaintiff s ability to perform a 13 limited range of light work, the VE eroded 90% of the security guard positions and 14 determined that Plaintiff could perform 10% of the positions. (Id. at 31.) The ALJ 15 also clarified that the VE suggest positions where a security guard would be able to 16 sit most of the time. (Id. at 32.) However, the ALJ failed to specify Plaintiff s 17 physical and mental demands associated with his past work. The ALJ was required 18 to develop an adequate record regarding the physical and mental demands of 19 Plaintiff s past relevant work and failed to do so. See Villa, 797 F.2d at 797; see 20 also Dealmeida, 699 F. Supp. at 807. 21 Despite the ALJ s error in identifying the physical and mental demands of 22 Plaintiff s past work, any error committed by the ALJ was harmless because the 23 ALJ identified other types of substantial, gainful work existing in the national 24 25 6 Plaintiff only challenges the ALJ s RFC assessment with regard to his 26 alleged mental limitations. (JS at 3-4, 7-8.) As discussed above, the Court determined that the ALJ properly found that Plaintiff s did not have a severe 27 mental impairments, and thus, properly excluded any mental limitations from the 28 RFC determination. See supra, Discussion Part III.A-B. 10 1 economy that Plaintiff could perform.7 (AR at 16); Curry v. Sullivan, 925 F.2d 2 1127, 1131 (9th Cir. 1991) (harmless error rule applies to review of administrative 3 decisions regarding disability). At the hearing, the ALJ asked the VE to identify 4 other jobs that Plaintiff can still perform, considering his RFC, age, education and 5 work experience. (AR at 32.) The VE testified that Plaintiff could perform the 6 following work: (i) electronics worker, with 1,500 positions regionally and 10,000 7 nationally (DOT § 726.687-010); (ii) bench assembler, with 90 percent erosion due 8 to standing and walking limitations, with 4,000 positions regionally and 40,000 9 nationally (id. § 706.684-042); and (iii) cashier, eroded 90 percent, with 3,800 10 positions regionally and 78,000 nationally (id. § 211.462-010). (AR at 32.) The 11 VE testified that the proposed positions are consistent with the DOT. (Id.) In his 12 decision, the ALJ relied upon the VE s testimony to determine that Plaintiff could 13 perform the jobs of electronics worker, bench assembler, and cashier, if he was 14 unable to perform his past relevant work.8 (AR at 16.) 15 16 7 The ALJ also employed the use of the Medical-Vocational Guidelines 17 ( Guidelines ) to determine that Plaintiff is not disabled. (AR at 16-17.) 18 However, the ALJ erroneously employed the Guidelines as Plaintiff is not able to 19 perform the full range of jobs in the light-work category. Tackett, 180 F.3d 1094, 1101 (9th Cir. 1999). 20 8 As previously discussed, the ALJ properly determined Plaintiff s RFC. 21 See supra, Discussion Part III.A-B. The hypothetical that the ALJ posed to the VE 22 included those restrictions the ALJ found to exist, and thus, the VE testimony 23 constituted substantial evidence. Andrews v. Shalala, 53 F.3d 1035, 1044 (9th Cir. 1995) (VE s testimony constitutes substantial evidence if the hypothetical posed 24 considered all of plaintiff s limitations); Osenbrock v. Apfel, 240 F.3d 1157, 25 1163-64 (9th Cir. 2001) (citing Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 26 1995)). To the extent that Plaintiff argues the ALJ posed an incomplete hypothetical, the Court finds there was no error. Rollins v. Massanari, 261 F.3d 27 853, 857 (9th Cir. 2001) ( Because the ALJ included all of the limitations that he (continued...) 28 11 1 Based on the foregoing, the Court finds that while the ALJ erred in 2 determining that Plaintiff could perform his past relevant work, the error was 3 harmless, as the ALJ identified other types of substantial, gainful work existing in 4 the national economy to support the finding of non-disability. Curry, 925 F.2d at 5 1131. 6 D. The ALJ Properly Determined Plaintiff Could Perform Other Types of 7 Substantial, Gainful Work Existing in the National Economy. 8 As stated above, the VE identified three other types of substantial, gainful 9 work existing in the national economy: electronics workers, bench assembler, and 10 cashier. (AR at 32.) After reviewing the record and determining Plaintiff s RFC, 11 the ALJ found Plaintiff not disabled because he could perform this other work. 12 (AR at 16-17.) Plaintiff s final argument is that the ALJ improperly determined 13 Plaintiff could perform the jobs of electronics worker and bench assembler, as both 14 jobs require the use of power tools, pneumatic impact wrench, clinching gun, or 15 rivet press. (JS at 14-15.) Plaintiff argues that these jobs require physical demands 16 exceeding his RFC, as he is precluded from working around vibrations or vibrating 17 machinery. (Id.) 18 The DOT describes the job functions of electronics worker as follows: 19 Performs any combination of following tasks to clean, trim, or prepare 20 components or parts for assembly by other workers . . . . Trims flash 21 from molded or cast parts, using cutting tool or file. . . . Prepares wires 22 for assembly by measuring, cutting, stripping, twisting, tinning, and 23 attaching contacts, lugs, and other terminal devices, using handtools, and 24 power tools and equipment. Positions and fastens together parts, such 25 8 (...continued) found to exist, and because his findings were supported by substantial evidence, 27 the ALJ did not err in omitting the other limitations that Rollins had claimed, but 28 had failed to prove. ). 26 12 1 as laminates, electron tube mounts and cages, variable capacitor rotors 2 and stators, paper loudspeaker cones, faceplates, and shells and cases for 3 various electronic components, using handtools and power tools. . . . 4 Disassembles and reclaims parts, using heating equipment and handtools. 5 DOT § 726.687-010. 6 The DOT describes the job functions of bench assembler as follows: 7 Assembles parts to form yard and garden care equipment components, 8 such as reels, steering handles, and gear boxes, following specifications 9 and using handtools and power tools: Fits parts of components together 10 and fastens them with bolts and cotter pins, using handtools and 11 pneumatic impact wrench. Seats inserts, such as bearings and grease 12 seals in hubs and sleeves, using power press. Rivets reel blades to hubs 13 on reel shaft, using pneumatic clinching gun, and sets rivets, using rivet 14 press [RIVETING-MACHINE OPERATOR (any industry) I]. May be 15 designated according to part assembled as Reel Fabricator (agric. equip.). 16 Id. § 706.684-042. 17 While the descriptions above both require the use of powertools and other 18 handtools, which would seemingly constitute vibrating machinery, the DOT 19 provides a specific function-by-function description where the DOT specifically 20 states that the activity or condition of vibration does not exist in both positions. 21 Id. §§ 726.687-010, 706.684-042. Even if the DOT function-by-function 22 descriptions for bench assembler and electronics worker are inconsistent with the 23 general descriptions, the ALJ still identified the job of cashier as an additional type 24 of substantial, gainful work existing in the national economy that Plaintiff could 25 perform. (AR at 16-17.) Notably, Plaintiff does not argue that he is precluded 26 from performing the job of cashier. Thus, even if the ALJ erred in determining 27 that Plaintiff could perform the jobs of electronics worker or bench assembler, any 28 13 1 error is harmless, as Plaintiff can still perform the job of cashier. Curry, 925 F.2d 2 at 1131. Accordingly, the Court finds that the ALJ sustained his burden of proving 3 there is work in the economy that Plaintiff can perform. 4 IV. 5 ORDER 6 Based on the foregoing, IT THEREFORE IS ORDERED that Judgment be 7 entered affirming the decision of the Commissioner, and dismissing this action 8 with prejudice. 9 10 Dated: October 30, 2009 11 HONORABLE OSWALD PARADA United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14
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