Eugene Burke v. Michael J Astrue, No. 5:2010cv00310 - Document 15 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton, The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. (SEE ORDER FOR FURTHER DETAILS) (lmh)
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Eugene Burke v. Michael J Astrue Doc. 15 1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 EUGENE BURKE, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 10-00310-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”) erred in Dockets.Justia.com 1 considering Plaintiff’s ability to perform other work in the 2 national economy. (JS at 2.) 3 4 This Memorandum Opinion will constitute the Court’s findings of 5 fact and conclusions of law. After reviewing the matter, the Court 6 concludes that the decision of the Commissioner must be affirmed. 7 8 I 9 THE ALJ DID NOT ERR AT STEP FIVE OF THE SEQUENTIAL EVALUATION 10 PROCESS IN CONSIDERING PLAINTIFF’S ABILITY TO PERFORM OTHER WORK IN 11 THE NATIONAL ECONOMY 12 At Step Five of the sequential evaluation process, it is the duty 13 of the ALJ to demonstrate that there are a significant number of jobs 14 in the national economy that a claimant is able to do. 15 Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999); 20 C.F.R. §404.1520(d), 16 (e), §416.920(d), (e). 17 the testimony of a vocational expert (“VE”) or by referring to 18 Commissioner’s Medical-Vocational Guidelines, commonly known as the 19 “grids.” See Tackett v. This can be accomplished either by calling on See Tackett, 180 F.3d at 1100-01. 20 An ALJ may rely on the grids only when the relevant grid 21 “completely and accurately represents claimant’s limitations, in other 22 words, a claimant must be able to perform the full range of jobs in a 23 given category, i.e., sedentary work, light work or medium work.” 24 (Tackett, 180 F.3d at 1101.) 25 significant non-exertional impairments, full reliance on the grids is 26 inappropriate and a VE’s testimony is required. (Id.; see also Thomas 27 v. Barnhart, 278 F.3d 947, 960 (9th Cir. 2002).) 28 Thus, where a claimant suffers from Here, the ALJ assessed Plaintiff’s residual functional capacity 2 1 (“RFC” as light work with certain non-exertional limitations: 2 “... occasionally climb ramps and stairs, but never climb 3 ladders, ropes, or scaffolds; he can occasionally balance, 4 stoop, 5 concentrated 6 exposure to hazards, and working at unprotected height.” 7 kneel, crouch, exposure and to crawl; extreme he should heat, even avoid moderate (AR 13.) 8 9 It is Plaintiff’s contention that the non-exertional impairments, 10 while correctly assessed, would significantly erode the occupational 11 base of light work and thus preclude the ALJ from reliance on the 12 grids. 13 The question presented to the Court is whether, in fact, the 14 particular 15 occupational base for light work. 16 automatically preclude application of the grids. 17 Secretary of HHS, 846 F.2d 573, 577 (9th Cir. 1988); Burkhart v. Bowen, 18 856 F.2d 1335, 1340 (9th Cir. 1988). 19 must 20 “significantly limit the range of work permitted by his exertional 21 limitations.” (Desrosiers, 846 F.2d at 577.) 22 first non-exertional determine if impairments a identified do erode the Non-exertional limitations do not See Desrosiers v. As Desrosiers instructs, the ALJ claimant’s non-exertional limitations The impact of such non-exertional limitations is significantly 23 dealt with in Social Security Ruling (“SSR”) 85-15. 24 section 25 applicable 26 crouching and crawling. (See SSR 85-15(2)(b).) 27 that stooping, kneeling, crouching and crawling are “progressively 28 more strenuous forms of bending parts of the body, with crawling as a is devoted in this to the case, non-exertional which consist 3 limitations of stooping, A specific which are kneeling, It is there stated 1 form of locomotion involving bending.” 2 stooping ... is required to do almost any kind of work, ...” 3 “if a person can stoop occasionally ... the sedentary and light 4 occupational base is virtually intact.” 5 It has been stated that “some Further, As to environmental restrictions, which are not specifically 6 addressed by Plaintiff, but are included in the non-exertional 7 limitations found by the ALJ, SSR 85-15 indicates that the types of 8 environmental restrictions assessed against Plaintiff in this case do 9 not have a significant effect on work that exists at all exertional 10 levels. Similarly, limitations on climbing and balancing “would not 11 ordinarily have a significant impact on the broad world of work.” 12 Although Social Security rulings do not have the same force and 13 effect as statute or regulation, they are binding on all components of 14 the Social Security Administration and are to be relied upon as 15 precedents in adjudicating cases. 16 636 (9th Cir. 2007), citing 67 Fed. Reg. at 57860. 17 Ninth Circuit in Chavez v. Department of Health and Human Services, 18 103 F.3d 849 (9th Cir. 1996), See Orn v. Astrue, 495 F.3d 625, As stated by the 19 “Social Security rulings constitute the Social Security 20 Administration’s 21 administers and of its own regulations. (Citation omitted.) 22 These rulings are interpretive rulings and do not have the 23 force of law. (Citation omitted.) 24 Security Rulings, unless they are plainly erroneous or 25 inconsistent with the [Social Security] Act or regulations. 26 (Citation omitted.)” interpretations of the statutes it We defer to Social 27 28 In Plaintiff’s Reply regarding the issue raised in this case, he 4 1 does not dispute the fact that Social Security Rulings provide 2 guidance both on the administrative level and on the judicial level. 3 Further, Plaintiff does not assert that citations in this case to the 4 applicable elements of SSR 85-15 are incorrect or are inconsistent or 5 contradictory to any applicable regulations, statutes, or cases. 6 Consequently, the Court determines that pursuant to the principles of 7 SSR 85-15 as quoted herein above, the ALJ was fully justified in 8 concluding that the occupational base was not eroded, and that the 9 grids could therefore be applied. 10 11 12 13 There is no error which would justify an order of remand. Consequently, the decision of the ALJ will be affirmed. Complaint will be dismissed with prejudice. IT IS SO ORDERED. 14 15 16 DATED: January 28, 2011 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 5 The
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