Arturo Salgado v. Michael J. Astrue, No. 5:2010cv00467 - Document 16 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY by Magistrate Judge John E. McDermott 1 . IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is AFFIRMED and that this action is dismissed with prejudice. LET JUDGMENT BE ENTERED ACCORDINGLY. [See document for details.] (san)

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Arturo Salgado v. Michael J. Astrue Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 ARTURO SALGADO, 12 Plaintiff, 13 v. 14 MICHAEL J. ASTRUE, 15 Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 10-0467-JEM MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY 17 PROCEEDINGS 18 19 On April 7, 2010, Arturo Salgado (“Plaintiff” or “Claimant”) filed a Complaint seeking 20 review of the decision by the Commissioner of the Social Security Administration 21 (“Commissioner”) denying his application for disability benefits under Titles II and XVI of the 22 Social Security Act. On October 5, 2010, the Commissioner filed an Answer to the 23 Complaint. On December 14, 2010, the parties filed a Joint Stipulation (“JS”) setting forth 24 their positions and the issues in dispute. 25 Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before the 26 undersigned Magistrate Judge. After reviewing the pleadings, transcripts, and administrative 27 record (“AR”), the Court concludes that the Commissioner’s decision should be affirmed and 28 the case dismissed with prejudice. Dockets.Justia.com BACKGROUND 1 2 Plaintiff was born on May 12, 1967, and was 40 years old on his alleged disability 3 onset date of November 16, 2007. (AR 113.) Plaintiff filed applications for Supplemental 4 Security Income and Disability Insurance Benefits on February 23, 2009 (AR 111-21), and 5 claims he is disabled due to epilepsy. (AR 138.) Plaintiff has not engaged in substantial 6 gainful activity since November 16, 2007. (AR 13, 138.) 7 Plaintiff’s claim was denied initially on April 20, 2009 (AR 44-47), and on 8 reconsideration on June 19, 2009. (AR 51-56.) After filing a timely request for hearing, 9 Plaintiff appeared with counsel and testified at a hearing held on October 29, 2009, before 10 Administrative Law Judge (“ALJ”) Jay E. Levine. (AR 25-39.) The ALJ issued a decision 11 denying benefits on December 10, 2009. (AR 11-17.) On January 18, 2010, Plaintiff filed a 12 timely request for review of the ALJ’s decision. (AR 4.) The Appeals Council denied review 13 on February 26, 2010. (AR 5-7.) Plaintiff then commenced the present action. DISPUTED ISSUES 14 15 As reflected in the Joint Stipulation, there are two disputed issues: 16 1. Whether the ALJ properly considered Plaintiff’s inability to communicate in 17 English at step five of the sequential evaluation; and 18 2. Whether the ALJ should have asked the vocational expert specific questions 19 about Plaintiff’s seizures. 20 (JS at 2.) 21 22 STANDARD OF REVIEW Under 42 U.S.C. § 405(g), this Court reviews the ALJ’s decision to determine whether 23 the ALJ’s findings are supported by substantial evidence and free of legal error. Smolen v. 24 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); see also DeLorme v. Sullivan, 924 F.2d 841, 846 25 (9th Cir. 1991) (ALJ’s disability determination must be supported by substantial evidence and 26 based on the proper legal standards). 27 28 2 1 Substantial evidence means “‘more than a mere scintilla,’ but less than a 2 preponderance.” Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting Richardson 3 v. Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is “such relevant evidence as a 4 reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. 5 at 401 (internal quotation marks and citation omitted). 6 This Court must review the record as a whole and consider adverse as well as 7 supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). 8 Where evidence is susceptible to more than one rational interpretation, the ALJ’s decision 9 must be upheld. Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 10 1999). “However, a reviewing court must consider the entire record as a whole and may not 11 affirm simply by isolating a ‘specific quantum of supporting evidence.’” Robbins, 466 F.3d at 12 882 (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)); see also Orn v. Astrue, 13 495 F.3d 625, 630 (9th Cir. 2007). 14 15 THE SEQUENTIAL EVALUATION The Social Security Act defines disability as the “inability to engage in any substantial 16 gainful activity by reason of any medically determinable physical or mental impairment which 17 can be expected to result in death or . . . can be expected to last for a continuous period of 18 not less than 12 months.” 42 U.S.C. §§ 423(d) (1)(A), 1382c(a)(3)(A). The Commissioner 19 has established a five-step sequential process to determine whether a claimant is disabled. 20 20 C.F.R. §§ 404.1520, 416.920. 21 The first step is to determine whether the claimant is presently engaging in substantial 22 gainful activity. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). If the claimant is 23 engaging in substantial gainful activity, disability benefits will be denied. Bowen v. Yuckert, 24 482 U.S. 137, 140 (1987). Second, the ALJ must determine whether the claimant has a 25 severe impairment or combination of impairments. Parra, 481 F.3d at 746. An impairment is 26 not severe if it does not significantly limit the claimant’s ability to work. Smolen, 80 F.3d at 27 1290. Third, the ALJ must determine whether the impairment is listed, or equivalent to an 28 3 1 impairment listed, in Appendix I of the regulations. Id. If the impediment meets or equals 2 one of the listed impairments, the claimant is presumptively disabled. Bowen v. Yuckert, 482 3 U.S. at 141. Fourth, the ALJ must determine whether the impairment prevents the claimant 4 from doing past relevant work. Pinto v. Massanari, 249 F.3d 840, 844-45 (9th Cir. 2001). 5 Before making the step four determination, the ALJ first must determine the claimant’s 6 residual functional capacity (“RFC”).1 20 C.F.R. § 416.920(e). The RFC must account for all 7 of the claimant’s impairments, including those that are not severe. 20 C.F.R. §§ 416.920(e), 8 416.945(a)(2); Social Security Ruling (“SSR”) 96-8p. If the claimant cannot perform his or 9 her past relevant work or has no past relevant work, the ALJ proceeds to the fifth step and 10 must determine whether the impairment prevents the claimant from performing any other 11 substantial gainful activity. Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000). The claimant bears the burden of proving steps one through four, consistent with the 12 13 general rule that at all times the burden is on the claimant to establish his or her entitlement 14 to benefits. Parra, 481 F.3d at 746. Once this prima facie case is established by the 15 claimant, the burden shifts to the Commissioner to show that the claimant may perform other 16 gainful activity. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). To support a 17 finding that a claimant is not disabled at step five, the Commissioner must provide evidence 18 demonstrating that other work exists in significant numbers in the national economy that the 19 claimant can do, given his or her RFC, age, education, and work experience. 20 C.F.R. § 20 416.912(g). If the Commissioner cannot meet this burden, then the claimant is disabled and 21 entitled to benefits. Id. 22 /// 23 /// 24 /// 25 26 27 1 Residual functional capacity (“RFC”) is what one “can still do despite [his or her] limitations” and represents an assessment “based on all the relevant evidence.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). 28 4 DISCUSSION 1 2 A. The ALJ’s Decision 3 In this case, the ALJ determined at step one of the sequential evaluation that Plaintiff 4 has not engaged in substantial gainful activity since November 16, 2007, his alleged 5 disability onset date. (AR 13.) 6 At step two, the ALJ determined that Plaintiff’s seizure disorder is a severe 7 impairment. (AR 13.) 8 At step three, the ALJ found that Plaintiff does not have an impairment or combination 9 of impairments that meets or medically equals one of the listed impairments. (AR 13.) 10 The ALJ found that Plaintiff has the RFC to perform very heavy work without exposure 11 to unprotected heights or dangerous machinery. (AR 14.) 12 At step four, the ALJ determined that Plaintiff could not perform his past relevant work 13 as a driver. (AR 15.) 14 At step five, the ALJ relied on the testimony of a vocational expert in determining that 15 there are jobs that exist in significant numbers in the national economy that Plaintiff can 16 perform, specifically hospital cleaner, hand packager, and floor waxer. (AR 16.) The ALJ 17 therefore concluded that Plaintiff is not disabled. (AR 17.) 18 19 20 B. The ALJ’s Failure to Consider Plaintiff’s Limited English Language Ability at Step Five Was Harmless Error. Plaintiff contends that the ALJ failed to consider Plaintiff’s limited English language 21 ability in making the step five determination that Plaintiff could perform the occupations of 22 hospital cleaner, hand packager, and floor waxer. (JS at 3-7, 9-10.) The Court agrees that 23 the ALJ did not expressly consider Plaintiff’s limited English language ability, but concludes 24 that any error in failing to do so was harmless. 25 26 1. Relevant Law At step five of the sequential evaluation, the Commissioner has the burden to 27 demonstrate that the claimant can perform work that exists in “significant numbers” in the 28 5 1 national economy, taking into account the claimant’s RFC, age, education, and work 2 experience. Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999) (citing 20 C.F.R § 3 404.1560(b)(3)). ALJs routinely rely on the Dictionary of Occupational Titles (“DICOT”) “in 4 evaluating whether the claimant is able to perform other work in the national economy.” 5 Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990) (citations omitted); see also 20 C.F.R. 6 §§ 404.1566(d)(1), 416.966(d)(1). The DICOT is the presumptive authority on job 7 classifications. Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995). An ALJ may not rely 8 on a vocational expert’s testimony regarding the requirements of a particular job without first 9 inquiring whether the testimony conflicts with the DICOT. Massachi v. Astrue, 486 F.3d 10 1149, 1152-53 (9th Cir. 2007) (citing SSR 00-4p (“[T]he adjudicator has an affirmative 11 responsibility to ask about any possible conflict between that [vocational expert] evidence 12 and information provided in the [DICOT].”)). In order for an ALJ to accept vocational expert 13 testimony that contradicts the DICOT, the record must contain “persuasive evidence to 14 support the deviation.” Pinto v. Massanari, 249 F.3d 840, 846 (9th Cir. 2001) (quoting 15 Johnson, 60 F.3d at 1435). Evidence sufficient to permit such a deviation may be either 16 specific findings of fact regarding the claimant’s residual functionality, or inferences drawn 17 from the context of the expert’s testimony. Light v. Soc. Sec. Admin., 119 F.3d 789, 793 (9th 18 Cir. 1997). 19 However, an ALJ need not always rely on vocational expert testimony to satisfy his 20 burden at Step Five. Depending upon the circumstances, reference to the 21 Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, Appendix 2 22 (commonly known as “the Grids”) may suffice. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th 23 Cir. 2001). When a claimant suffers only exertional limitations, the ALJ must consult the 24 Grids. Lounsburry v. Barnhart, 468 F.3d 1111, 1115 (9th Cir. 2006). When a claimant 25 suffers from both exertional and nonexertional limitations, the ALJ must first determine 26 whether the Grids mandate a finding of disability with respect to exertional limitations. See 27 Lounsburry, 468 F.3d at 1116; Cooper v. Sullivan, 880 F.2d 1152, 1155 (9th Cir. 1989). If 28 6 1 so, the claimant must be awarded benefits. Cooper, 880 F.2d at 1155. If not, the ALJ may 2 be required to take the testimony of a vocational expert. Hoopai v. Astrue, 499 F.3d 1071, 3 1076 (9th Cir. 2007). Vocational expert testimony is required only if the non-exertional 4 limitations are at a sufficient level of severity to make the Grids inapplicable to the particular 5 case. The severity of limitations at step five that would require use of a vocational expert 6 must be greater than the severity of impairments determined at step two. Id. 7 8 2. Analysis In this case, the ALJ acknowledged that Plaintiff “is not able to communicate 9 effectively in English” and considered him to be effectively “illiterate in English.” (AR 16.) 10 Nonetheless, the three occupations identified by the ALJ at step five all require “Level 1” or 11 “Level 2” language skills. DICOT 323.687-010 (hospital cleaner, level two), 381.687-034 12 (floor waxer, level one), 559.687-074 (hand packager, level two). Level one language skills 13 include the abilities to “[r]ecognize [the] meaning of 2,500 (two- or three-syllable) words” and 14 “[r]ead at [a] rate of 95-120 words per minute.” DICOT 381.687-034. Those with level two 15 language skills possess a “[p]assive vocabulary of 5,000-6,000 words” and can “[r]ead at [a] 16 rate of 190-215 words per minute” and “look[] up unfamiliar words in [a] dictionary for 17 meaning, spelling, and pronunciation.” DICOT 323.687-010, 559.687-074. Given the ALJ’s 18 finding that Plaintiff was so limited in English that he was effectively illiterate, the vocational 19 expert deviated from the DICOT in finding that Plaintiff could perform positions that require at 20 least some level of literacy. The ALJ failed to ask the vocational expert to explain the 21 deviation. (AR 36-38.) His unexplained assertion that “the vocational expert’s testimony is 22 consistent with the information contained in the [DICOT]” (AR 16) does not cure this defect. 23 The ALJ’s failure to assess the impact of Plaintiff’s limited English language ability at step 24 five constitutes legal error. See Pinto, 249 F.3d at 847-48 (remanding for further 25 proceedings where “[n]either the ALJ nor the vocational expert addressed the impact of [the 26 claimant’s] illiteracy on her ability to find and perform a similar job”). 27 28 7 1 However, the Court concludes that the ALJ’s error was harmless. The ALJ noted that 2 section 204.00 of the Grids directs a finding of not disabled for an individual capable of very 3 heavy work. (AR 16 (citing 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 204.00).) An individual 4 capable of performing very heavy work is also capable of performing heavy, medium, light 5 and sedentary work, and the Grids provide that “an impairment which does not preclude 6 heavy work (or very heavy work) would not ordinarily be the primary reason for 7 unemployment, and generally is sufficient for a finding of not disabled, even though age, 8 education, and skill level of prior work experience may be considered adverse.” 20 C.F.R. 9 Pt. 404, Subpt. P, App. 2 § 204.00; see 20 C.F.R. §§ 404.1567(e), 416.967(e). The 10 Commissioner points out that an illiterate individual in Plaintiff’s age range capable of 11 performing only light work is considered “not disabled” under the Grids, and argues that 12 Plaintiff’s other non-exertional limitations are not sufficiently severe to preclude reliance on 13 the Grids. (JS at 7-9 (citing 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 202.16 (a finding of “not 14 disabled” is directed for a younger individual who is “[i]lliterate or unable to communicate in 15 English” and has only unskilled or no work experience)).) The Commissioner’s argument is 16 persuasive. Plaintiff’s other non-exertional limitations prevent him from working “at 17 unprotected heights or near dangerous machinery.” (AR 14.) The Commissioner has 18 determined that “[a] person with a seizure disorder who is restricted only from being on 19 unprotected elevations and near dangerous moving machinery is an example of someone 20 whose environmental restriction does not have a significant effect on work that exist[s] at all 21 exertional levels.” SSR 85-15. Therefore, Plaintiff’s non-exertional limitations are not 22 sufficiently severe to render the Grids inapplicable to his case and make vocational expert 23 testimony necessary. See Hoopai, 499 F.3d at 1075 (reliance on Grids appropriate where a 24 claimant’s nonexertional limitations are not “‘sufficiently severe’ as to significantly limit the 25 range of work permitted by the claimant’s exertional limitations”); Greggs v. Astrue, 2010 WL 26 2581963, at *4 (M.D. Ala. June 22, 2010) (ALJ did not err in relying on the Grids where 27 claimant’s only non-exertional limitations related to his seizure disorder and “involve[d] 28 8 1 unprotected elevations and dangerous moving machinery (as well as open waters)” (citing 2 SSR 85-15)). The ALJ’s failure to consider explicitly Plaintiff’s limited English language 3 ability at step five was therefore harmless error because it does “not negate the validity of the 4 ALJ’s ultimate conclusion.” See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 5 1197 (9th Cir. 2004). The ALJ’s step five determination that Plaintiff is not disabled is fully 6 supported by the Grids. 7 C. Hypothetical Question to the Vocational Expert. 8 9 The ALJ Properly Determined Plaintiff’s RFC and Posed a Complete Plaintiff next argues that his “seizures should have been included in the [RFC] finding” 10 and “in the hypothetical question to the [vocational expert].” (JS at 10-11, 14.) The Court 11 disagrees. 12 Plaintiff does not challenge the ALJ’s evaluation of any of the medical evidence. 13 Instead, Plaintiff points out that he has had three seizures since his November 2007 onset 14 date, and that each time he “was not in touch with reality for twenty to twenty[-]five minutes” 15 and required emergency care. (JS at 10.) Therefore, Plaintiff concludes, the ALJ should 16 have included in his RFC determination and in his hypothetical question to the vocational 17 expert that Plaintiff would “on an average of twice a year [have] a seizure incapacitating [him] 18 for 20-25 minutes and requiring emergency care and thereafter three to seven days to 19 recover.” (JS at 11.) Plaintiff’s argument fails because he cannot point to any medical 20 opinion stating that he would continue to have an average of two seizures per year with 21 those particular features. The ALJ’s inclusion in Plaintiff’s RFC of the prophylactic limitations 22 of avoiding unprotected heights and dangerous machinery reasonably accounts for Plaintiff’s 23 seizures. Indeed, the ALJ’s RFC correlates with the opinion of Plaintiff’s treating physician, 24 Dr. Torres, who wrote that Plaintiff could safely return to work in September 2008 but that 25 Plaintiff was “unable to work as a commercial driver” in February 2009. (AR 348, 379.) The 26 ALJ determined that Plaintiff’s RFC did not permit him to work as a driver but it did permit 27 him to perform other jobs that exist in significant numbers in the national economy. (AR 1528 9 1 16.) The ALJ’s RFC determination is supported by substantial evidence, and the ALJ 2 properly included in his hypothetical to the vocational expert “all of the limitations that [he] 3 found credible and supported by substantial evidence in the record.” See Bayliss v. 4 Barnhart, 427 F.3d 1211, 1217-18 (9th Cir. 2005). The ALJ was not required to include 5 limitations that were not part of his findings. Rollins v. Massanari, 261 F.3d 853, 857 (9th 6 Cir. 2001); Osenbrock, 240 F.3d at 1165. A reversal or remand on this basis is not 7 warranted. ORDER 8 9 IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is 10 AFFIRMED and that this action is dismissed with prejudice. 11 LET JUDGMENT BE ENTERED ACCORDINGLY. 12 13 DATED: February 22, 2011 14 /s/ John E. McDermott JOHN E. MCDERMOTT UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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