Christopher Thompson v. Michael J Astrue, No. 5:2009cv01182 - Document 17 (C.D. Cal. 2010)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Christopher Thompson filed this action on July 1, 2009. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before Magistrate Judge Rosenberg on July 23 and 31, 2009. On January 5, 2010, the parties filed a Joint Stipulation that addressed the disputed issues. 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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Christopher Thompson v. Michael J Astrue Doc. 17 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 CHRISTOPHER THOMPSON, 12 Plaintiff, 13 v. 14 15 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 16 17 ) ) ) ) ) ) ) ) ) ) ) ) NO. EDCV 09-1182 AGR MEMORANDUM OPINION AND ORDER Christopher Thompson filed this action on July 1, 2009. Pursuant to 28 18 19 U.S.C. § 636(c), the parties consented to proceed before Magistrate Judge 20 Rosenberg on July 23 and 31, 2009. (Dkt. Nos. 8 & 10.) On January 5, 2010, 21 the parties filed a Joint Stipulation ( JS ) that addressed the disputed issues. The 22 Court has taken the matter under submission without oral argument. Having reviewed the entire file, the Court affirms the decision of the 23 24 Commissioner. 25 /// 26 /// 27 /// 28 /// Dockets.Justia.com 1 I. 2 PROCEDURAL BACKGROUND 3 On September 3, 2004, Thompson filed an application for Supplemental 4 Security Income benefits alleging a disability onset date of June 16, 2004. 5 Administrative Record ( AR ) 18, 232-33. The application was denied initially and 6 upon reconsideration. AR 18, 153, 160. An Administrative Law Judge ( ALJ ) 7 conducted a hearing on January 24, 2007, at which Thompson and a vocational 8 expert ( VE ) testified. AR 70-89. On March 1, 2007, the ALJ issued a decision 9 denying benefits. AR 18, 131-41. On July 23, 2007, the Appeals Council granted 10 Thompson s request for review, vacated the decision of the ALJ, and remanded. 11 AR 190-92. On April 8, 2008, a different ALJ conducted a hearing at which 12 Thompson and a VE testified. AR 90-113. On December 31, 2008, the ALJ 13 issued a decision denying benefits. AR 15-34. The Appeals Council denied 14 Thompson s request for review on May 19, 2009. AR 7-9. This action followed. 15 II. 16 STANDARD OF REVIEW 17 Pursuant to 42 U.S.C. § 405(g), this Court reviews the Commissioner s 18 decision to deny benefits. The decision will be disturbed only if it is not supported 19 by substantial evidence, or if it is based upon the application of improper legal 20 standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. 21 Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 22 Substantial evidence means more than a mere scintilla but less than a 23 preponderance it is such relevant evidence that a reasonable mind might 24 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 25 determining whether substantial evidence exists to support the Commissioner s 26 decision, the Court examines the administrative record as a whole, considering 27 adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the 28 2 1 evidence is susceptible to more than one rational interpretation, the Court must 2 defer to the Commissioner s decision. Moncada, 60 F.3d at 523. 3 III. 4 DISCUSSION 5 A. 6 A person qualifies as disabled, and thereby eligible for such benefits, only 7 if his physical or mental impairment or impairments are of such severity that he is 8 not only unable to do his previous work but cannot, considering his age, 9 education, and work experience, engage in any other kind of substantial gainful 10 work which exists in the national economy. Barnhart v. Thomas, 540 U.S. 20, 11 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003). Disability 12 B. 13 Thompson has the following severe combination of impairments: The ALJ s Findings 14 adhesive capsulitis of the left shoulder, degenerative joint disease of the lumbar 15 spine . . . and substance abuse disorder. 1 AR 22. Thompson does not have an 16 impairment or combination of impairments that meets or medically equals one of 17 the listed impairments. Id. 18 Thompson has the residual functional capacity ( RFC ) to perform light 19 work limited to simple, routine, repetitive tasks. AR 23. Thompson has no past 20 relevant work. AR 32. Jobs involving unskilled light work exist in significant 21 numbers in the national economy that Thompson can perform. AR 33-34. 22 C. 23 Thompson argues that the ALJ failed to comply with the terms of the Compliance with the Appeals Council s Remand Order 24 25 26 27 28 1 The heading of Section 2 of the ALJ s decision lists schizophrenia as one of Thompson s severe impairments. AR 22. This appears to be a scrivener s error, however, because the ALJ explicitly rejected the contention that Thompson s mental impairments are severe in the text immediately below that heading: The claimant s medically determinable mental impairments do not cause more than minimal limitation in the claimant s ability to perform basic mental work activities and [are] therefore nonsevere. Id. 3 1 Appeals Council s July 23, 2007 remand order to obtain, if available, treatment 2 records from Dr. Tong, who opined in September 2006 that Thompson was 3 completely disabled due to schizophrenia. JS 3 (citing AR 191-92, 360). 4 According to Thompson, the ALJ s rejection of Dr. Tong s opinion, in part on the 5 ground that Thompson had not produced his treatment records, was an improper 6 attempt to shift the burden of developing the record because pursuant to the 7 Appeals Council s order, the ALJ, not Thompson, was required to obtain those 8 records. JS 4; AR 32. 9 Thompson s argument that the ALJ failed to comply with the Appeals 10 Council s remand order is misdirected. After the Appeals Council remanded the 11 matter (AR 191-92), the ALJ issued a new hearing decision in December 2008. 12 AR 18-34. The Appeals Council denied Thompson's request for review of that 13 decision.2 AR 7-9. The ALJ's decision became the final decision of the 14 Commissioner subject to judicial review. See 42 U.S.C. § 405(g); Tyler, 305 Fed. 15 Appx. at 332 ( The district court properly declined to evaluate whether the ALJ's 16 second decision satisfied the demands of the Appeals Council's remand . . . . 17 [F]ederal courts only have jurisdiction to review the final decisions of 18 administrative agencies. When the Appeals Council denied review of the ALJ's 19 second decision, it made that decision final, and declined to find that the ALJ had 20 not complied with its remand instructions. ) Accordingly, the Court s role is to 21 determine whether the ALJ's final decision is supported by substantial evidence 22 (see Moncada, 60 F.3d at 523), not whether the ALJ complied with the Appeals 23 Council's remand order. 24 25 26 27 28 2 By denying review of the ALJ s December 31, 2008 decision, the Appeals Council declined to find that the ALJ had not complied with its remand order and determined that the additional evidence obtained by the ALJ was sufficient to support the disability determination. Tyler v. Astrue, 305 Fed. Appx. 331, 332 (9th Cir. 2008). 4 1 Construing Thompson s argument as a claim that the ALJ failed to develop 2 the record, the claim still fails. In its remand order, the Appeals Council directed 3 the ALJ to obtain additional evidence concerning Thompson s medical claims, 4 including, if available, Dr. Tong s treatment notes, treatment notes from the 5 sources listed in B83, and a consultative psychiatric examination with medical 6 source statements about what the claimant can still do despite the impairment. 7 AR 191-92. 8 9 Pursuant to the remand order, on June 6, 2008, the ALJ obtained Thompson s medical records from Kern Medical Center, which included the 10 County of Kern Family Medicine Center where Dr. Tong practiced. AR 360, 398- 11 624. The records forwarded by Kern Medical Center did not include treatment 12 notes from Dr. Tong. The ALJ gave little weight to Dr. Tong s opinion because 13 [t]here is little indication that Dr. Tong is a psychiatrist and because Thompson 14 has not submitted treatment records from Dr. Tong to support this diagnosis. 15 AR 32. Contrary to Thompson s argument that the ALJ improperly attempted to 16 shift the burden of developing the record, the ALJ requested and received 17 hundreds of pages of medical records from the medical center where Dr. Tong 18 practiced. There is no evidence that treatment notes from Dr. Tong exist. At the 19 hearing, Thompson did not indicate Dr. Tong had any treatment notes, much less 20 bring them to the ALJ s attention, or object to the absence of Dr. Tong s treatment 21 notes from the record. AR 92-112. Nor did Thompson supplement the record 22 with Dr. Tong s treatment notes following the hearing, even though the ALJ 23 agreed to hold the record open for thirty days so that Thompson could obtain 24 additional medical evidence. AR 112. The ALJ s determination that Dr. Tong s 25 two-sentence opinion merited little weight is supported by substantial evidence. 26 AR 32, 360; see, e.g., Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (an 27 ALJ need not accept the opinion of any physician, including a treating physician, 28 5 1 if that opinion is brief, conclusory, and inadequately supported by clinical 2 findings ). 3 The ALJ made no finding that the evidence was ambiguous or that the 4 record was inadequate to allow for proper evaluation. See Mayes v. Massanari, 5 276 F.3d 453, 459-60 (9th Cir. 2001) ( An ALJ s duty to develop the record further 6 is triggered only when there is ambiguous evidence or when the record is 7 inadequate to allow for proper evaluation of the evidence. ). In addition to 8 obtaining additional medical records, the ALJ also obtained a psychiatric 9 consultative examination by psychiatrist Dr. Linda Smith. AR 375-87. The ALJ 10 did not err. Severity of Thompson s Mental Impairment3 11 D. 12 Thompson argues the ALJ improperly determined at step two that his 13 14 mental impairment did not meet the criteria to be classified as severe. JS 14. At step two of the sequential analysis, the claimant bears the burden of 15 demonstrating a severe, medically determinable impairment that meets the 16 duration requirement. 20 C.F.R. § 404.1520(a)(4)(ii); Bowen v. Yuckert, 482 U.S. 17 137, 146 n.5, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987). To satisfy the duration 18 requirement, the severe impairment must have lasted or be expected to last for a 19 continuous period of not less than 12 months. Id. at 140. 20 Your impairment must result from anatomical, physiological, 21 or psychological abnormalities which can be shown by 22 medically acceptable clinical and laboratory diagnostic 23 techniques. A physical or mental impairment must be 24 established by medical evidence consisting of signs, 25 symptoms, and laboratory findings, not only by your 26 statement of symptoms. 27 28 3 The Court will address the remainder of Thompson s arguments in an order different than that presented in the JS. 6 1 20 C.F.R. § 404.1508; 20 C.F.R. § 416.908. [T]he impairment must be one that 2 significantly limits your physical or mental ability to do basic work activities. 4 3 Yuckert, 482 U.S. at 154 n.11 (quoting 20 C.F.R. § 404.1520(c)); Smolen v. 4 Chater, 80 F.3d at 1273, 1290 (9th Cir. 1996) ( [A]n impairment is not severe if it 5 does not significantly limit [the claimant s] physical ability to do basic work 6 activities. ) (citation and quotation marks omitted). 7 An impairment or combination of impairments may be found not severe 8 only if the evidence establishes a slight abnormality that has no more than a 9 minimal effect on an individual s ability to work. Webb v. Barnhart, 433 F.3d 10 683, 686-87 (9th Cir. 2005) (emphasis in original, citation omitted). Step two is a 11 de minimis screening device [used] to dispose of groundless claims and the 12 ALJ s finding must be clearly established by medical evidence. Id. at 687 13 (citations and quotations omitted). [T]he ALJ must consider the combined effect 14 of all of the claimant s impairments on her ability to function, without regard to 15 whether each alone was sufficiently severe. Smolen, 80 F.3d at 1290. The ALJ 16 is also required to consider the claimant s subjective symptoms, such as pain or 17 fatigue, in determining severity. Id. The Commissioner does not consider age, 18 education, and work experience. 20 C.F.R. § 404.1520(c). 19 At step two, the ALJ did not find that Thompson had a severe mental 20 21 22 4 23 24 25 26 27 28 Basic work activities are the abilities and aptitudes necessary to do most jobs, such as (1) physical functions like walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, and handling; (2) the capacity for seeing, hearing, and speaking; (3) understanding, carrying out, and remembering simple instructions; (4) the use of judgment; (5) responding appropriately to supervision, co-workers, and usual work situations; and (6) dealing with changes in a routine work setting. 20 C.F.R. § 416.921(b); Social Security Ruling ( SSR ) 85-15. Social security rulings do not have the force of law. Nevertheless, they constitute Social Security Administration interpretations of the statute it administers and of its own regulations and are given deference unless they are plainly erroneous or inconsistent with the Act or regulations. Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989). 7 1 impairment.5 AR 22; see supra n.1. Even assuming without deciding that 2 omission of a mental impairment constituted legal error at step two, such error 3 was harmless. Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). Any 4 prejudice to Thompson could occur only at step five because all other steps were 5 decided in his favor. Id. The RFC assessment takes into account limitations 6 imposed by all impairments, even those that are not severe. Id. at 683. 7 E. 8 The ALJ limited Thompson to simple, routine, repetitive tasks. AR 23. 9 Consultative Psychiatric Examiner s Opinion Thompson argues the ALJ improperly rejected the opinion of examining 10 psychiatrist Dr. Kalman regarding his mental RFC.6 JS 9. Thompson contends 11 the ALJ s reasons for giving greater weight to the opinion of Dr. Smith, who 12 examined him at the request of the state agency, than to the opinion of Dr. 13 Kalman, who examined him at the request of his lawyer, were legally insufficient. 14 Id. (citing AR 27-29 & 32). 15 An ALJ may reject an uncontradicted examining physician s medical 16 opinion based on clear and convincing reasons. Carmickle v. Comm r, Soc. 17 Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (quoting Lester, 81 F.3d at 830- 18 31). When an examining physician s opinion is contradicted, it may be rejected 19 20 21 22 23 24 25 26 27 28 5 In evaluating the severity of Thompson s mental impairments, the ALJ considered the four broad functional areas set out in 20 C.F.R. § 404.1520a(c)(3) and section 12.00C of the Listing of Impairments: activities of daily living; social functioning; concentration, persistence or pace; and episodes of decompensation. AR 22. The ALJ found that Thompson had a mild limitation in his ability to perform activities of daily living; no limitation in social functioning; mild limitation in the area of concentration, persistence or pace; and no episodes of decompensation of extended duration. Id. The ALJ therefore concluded that Thompson s mental impairments were not severe. Id. (citing 20 C.F.R. § 404.1520a(d)(1) ( If we rate the degree of your limitation in the first three functional areas as none or mild and none in the fourth area, we will generally conclude that your impairment(s) is not severe . . . . )). 6 Although Thompson refers in passing to Dr. Kalman s relevant treating source opinion, the record establishes that Dr. Kalman was not Thompson s treating psychiatrist, but rather examined Thompson at the request of Thompson s lawyer. AR 28, 389-97. 8 1 for specific and legitimate reasons that are supported by substantial evidence in 2 the record. Id. at 1164 (citation omitted). An examining physician's opinion 3 constitutes substantial evidence when it is based on independent clinical findings. 4 Id. 5 When there is conflicting medical evidence, the Secretary must determine 6 credibility and resolve the conflict. Thomas, 278 F.3d at 956-57 (citation and 7 quotation marks omitted). The ALJ is likewise responsible for resolving 8 ambiguities. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The 9 Court must uphold the ALJ s decision when the evidence is susceptible to more 10 11 than one rational interpretation. Id. In a psychiatric evaluation dated March 30, 2008, Dr. Kalman did not make 12 a diagnosis. He stated rule out schizoaffective disorder and rule out alcohol 13 abuse. AR 391. Dr. Kalman reported that Thompson s responses were delayed, 14 his memory was impaired, he had impaired attention and concentration, his mood 15 was depressed, his affect was blunted, and his thought processes were 16 significant for poverty of ideas and marked by vague, halting speech. AR 390- 17 91. Thompson reported to Dr. Kalman that he does not get along with his family 18 and has no friends. AR 391. On a typical day, I m tore up. I can t buy nothing. I 19 can t eat well. No money. I m very depressed. Id. For the last two years, he 20 had auditory hallucinations telling him to kill himself. Id. 21 Dr. Kalman found that Thompson had mild limitations in his ability to 22 remember locations and work-like procedures; understand, remember and carry 23 out short and simple (one- or two-step) repetitive instructions or tasks; perform 24 activities within a schedule, maintain regular attendance and be punctual; interact 25 appropriately with the public; get along with co-workers; and maintain socially 26 appropriate behavior. AR 394-96. Thompson had moderate limitations in his 27 ability to understand, remember and carry out detailed instructions; maintain 28 attention and concentration for extended periods; sustain an ordinary routine 9 1 without supervision; make simple work-related decisions; complete a normal 2 workday and workweek without interruptions from psychologically based 3 symptoms; perform at a consistent pace without an unreasonable number of rest 4 periods; and accept instructions and respond appropriately to criticism from 5 supervisors. AR 395-96. Thompson s condition was not expected to improve 6 significantly in the next twelve months. AR 392, 397. 7 Dr. Smith, an examining physician, saw Thompson on October 2, 2007, 8 and diagnosed alcohol abuse, possibly abstaining. AR 382. Dr. Smith found no 9 evidence of any other Axis I disorder and did not believe Thompson was impaired 10 in his ability to work if he gave fair effort. Id. With respect to auditory 11 hallucinations, Dr. Smith found that Thompson was unable to provide any details 12 about what he hears. AR 377. She then fabricated details that are not typical for 13 true hallucinations, and he responded positively. AR 377, 380. Dr. Smith opined 14 that the pattern is very typical for lay persons who are attempting to stage 15 psychosis. AR 382. As to symptoms on Thompson s questionnaire, such as 16 suicidal thoughts or anxiety, Thompson stated that the symptoms were resolved 17 with medication. AR 376, 382. Thompson s thought processes were coherent 18 and organized. AR 380. 19 Dr. Smith determined that Thompson was not impaired in his ability to: 20 understand, remember or complete simple commands; understand, remember or 21 complete complex commands; interact appropriately with supervisors, co-workers 22 or the public; comply with job rules such as safety and attendance; respond to 23 changes in the normal workplace setting; and maintain persistence and pace in a 24 normal workplace setting. AR 383. 25 After a lengthy discussion of the medical evidence pertaining to 26 Thompson s mental limitations (AR 26-32), including the findings of Dr. Kalman 27 and Dr. Smith, the ALJ concluded: 28 The undersigned gives greater weight to the opinion of Dr. Smith 10 1 than to the opinion of Dr. Kalman. She asked the claimant much 2 more detailed questions about his symptoms than Dr. Kalman did. 3 Given the claimant s lack of mental health treatment, Dr. Smith s 4 observations of the claimant s reluctance to answer question[s], Dr. 5 Smith s observations of fabricated details and near misses in 6 arithmetic calculations, and Dr. Kalman s opinion that the claimant s 7 limitations may be due to a diagnosis of alcohol abuse, the 8 undersigned finds that the claimant has not established the existence 9 of a severe mental impairment. 10 11 AR 32. Dr. Smith and Dr. Kalman were examining psychiatrists whose respective 12 opinions were based on independent clinical findings arising from in-person 13 examinations of Thompson. AR 375-97. As such, both opinions constitute 14 substantial evidence. Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 15 2001) (examining doctor's opinion constitutes substantial evidence when it rests 16 on his own independent examination of the claimant). 17 Although Thompson argues the ALJ s reasons for giving greater weight to 18 Dr. Smith were not legally sufficient, Thompson does not address any of the 19 ALJ s reasons. JS 9. 20 As the ALJ explained, Dr. Smith s examination included questions that 21 were much more detailed than Dr. Kalman s, particularly regarding Thompson s 22 complaints of auditory and visual hallucinations. AR 32. Dr. Smith asked 23 Thompson to describe his auditory hallucinations and followed up with specific 24 questions about whether the voices came from inside or outside his head, 25 whether the voices woke him up, and whether they were accompanied by 26 feelings of dizziness. AR 377. Dr. Smith also asked Thompson to describe his 27 visual hallucinations. Id. Dr. Smith found that Thompson s responses were 28 typical for lay persons who are attempting to stage psychosis. AR 382; see AR 11 1 377. In contrast, Dr. Kalman s report accepts Thompson s stated hallucinations 2 at face value and provides no indication that Dr. Kalman asked probing 3 questions. AR 389, 391. 4 The ALJ s determination that the treating records were consistent with Dr. 5 Smith s report that the claimant could not tell her what the voices said is 6 supported by substantial evidence. AR 31. Thompson sought treatment at Kern 7 Medical Center Emergency Department approximately fifty times between July 8 2005 and September 2007. AR 24, 398-624. On July 14, 2007, a physician 9 evaluation/assessment form noted that Thompson reports feeling super 10 depressed but affect not congruent. AR 478. A psychiatric history completed 11 on the same day notes: [Patient] came in for abdominal pain. Then reports he 12 hears voices telling him to kill himself. [Patient] states he needs something to 13 eat, he is homeless and is trying to get SSI and has been denied a couple of 14 times. [Patient] kept requesting food instead of answering questions. [History] of 15 poly sub[stance] abuse (currently denies), malingering, depression. AR 476. 16 Four days later, Thompson reported a history of occasional auditory 17 hallucinations, but said he was unsure of what voices tell him. It just whistle[s], I 18 am unsure of what the voices say. AR 469. Another record states that despite 19 a reported history of schizophrenia, diagnosis of Thompson s mental state is 20 tentative due to the need to rule out malingering.7 AR 481. 21 The ALJ also properly relied on the inconsistency between Thompson s 22 near misses on arithmetic calculations before Dr. Smith and Dr. Kalman. When 23 Dr. Smith asked Thompson to subtract ten minus three, his answer was six. Dr. 24 Smith found that this was not a credible answer. AR 381. By contrast, as the 25 ALJ noted, Thompson was able to calculate that he would receive 80 cents 26 27 28 7 As the ALJ noted, Dr. Sophon, an examining orthopedic surgeon, observed that Thompson is noted not to use full effort in performing the right grip strength test, the results of which indicated that Thompson had zero strength in his right (dominant) hand, despite no evidence of atrophy. AR 31, 362. 12 1 change from $1.00 if he bought two oranges at 10 cents each when asked to do 2 calculations by Dr. Kalman. AR 31, 390. The ALJ concluded that Thompson s 3 answers showed variability of effort, supporting Dr. Smith s opinion that the 4 claimant made mistakes typical for someone trying to stage a poor memory. AR 5 31, 381. 6 7 The ALJ gave specific and legitimate reasons, supported by substantial evidence, for giving greater weight to Dr. Smith s opinion. The ALJ did not err. 8 F. 9 Thompson argues the ALJ s hypothetical was incomplete because it failed 10 to reflect all of his limitations, particularly his multiple mental limitations. JS 18 11 (citing AR 109). 12 Incomplete Hypothetical The ALJ s hypothetical to the VE at AR 109 concerned Thompson s ability 13 to perform his past relevant work. The ALJ, however, found that Thompson did 14 not have any past relevant work. AR 32-33. The ALJ proceeded to step five of 15 the sequential evaluation and did not rely on the VE s testimony. Therefore, 16 Thompson s argument is moot. 17 G. 18 At step five, the ALJ found that Thompson was capable of performing Medical Vocational Guidelines 19 unskilled light work and determined that jobs exist in significant numbers in the 20 national economy that Thompson can perform. AR 33-34. The ALJ did not, 21 however, identify specific jobs falling into that category. Id. Thompson argues 22 the ALJ therefore failed to properly develop the record. JS 20. 23 At step five of the sequential analysis, the Commissioner bears the burden 24 of demonstrating that there is other work in significant numbers in the national 25 economy that the claimant can do. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 26 (9th Cir. 2006). If the Commissioner satisfies this burden, the claimant is not 27 disabled and not entitled to disability benefits. If the Commissioner cannot meet 28 this burden, the claimant is disabled and entitled to disability benefits. Id. 13 1 There are two ways for the Commissioner to meet the burden of showing 2 that there is other work in significant numbers in the national economy that 3 claimant can do: (1) by the testimony of a vocational expert, or (2) by reference to 4 the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2. Id. 5 Where a claimant suffers only exertional limitations, the ALJ must consult the 6 grids. Where a claimant suffers only non-exertional limitations, the grids are 7 inappropriate, and the ALJ must rely on other evidence. Where a claimant 8 suffers from both exertional and non-exertional limitations, the ALJ must consult 9 the grids first. Id. at 1115 (citations omitted). 10 The ALJ determined that Thompson was capable of performing light,8 11 unskilled work. AR 23, 33. Unskilled work is work which needs little or no 12 judgment to do simple duties that can be learned on the job in a short period of 13 time. 20 C.F.R. § 416.968(a). In addition, "[t]he basic mental demands of 14 competitive, remunerative, unskilled work include the abilities (on a sustained 15 basis) to understand, carry out, and remember simple instructions; to respond 16 appropriately to supervision, coworkers, and usual work situations; and to deal 17 with changes in a routine work setting. A substantial loss of ability to meet any of 18 these basic work-related activities would severely limit the potential occupational 19 base. SSR 85-15; AR 33. 20 The ALJ determined that Thompson was a younger individual when the 21 application was filed, changed age category to closely approaching advanced 22 age on January 30, 2006, had a high school education, and had no transferrable 23 24 25 26 27 28 8 Light work is work that involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 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. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time. 20 C.F.R. § 416.967(b); AR 23. 14 1 job skills. AR 33. A finding of not disabled would be directed under Rule 2 202.20 and Rule 202.13 if Thompson had the ability to perform the full range of 3 light work. Id. Finding that Thompson was able to perform unskilled light work 4 and [a]dditional limitations have little or no effect on the occupational base of 5 unskilled light work, the ALJ determined that Thompson was not disabled. AR 6 33-34. The grid rules are premised on the availability of jobs at the unskilled 7 level. 20 C.F.R. § 404, Subpart P, App. 2, § 202.00(a)-(b). Thompson has not 8 identified any error in the ALJ s analysis. 9 IV. 10 ORDER 11 12 13 14 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. 15 16 17 DATED: July 27, 2010 ALICIA G. ROSENBERG United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 15

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