Judy Garcia v. Michael J Astrue, No. 5:2010cv01202 - Document 18 (C.D. Cal. 2011)
Court Description: MEMORANDUM OF DECISION by Magistrate Judge Andrew J. Wistrich. The Commissioner's decision is affirmed. (mz)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 13 14 15 16 JUDY GARCIA, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the Social ) Security Administration, ) ) Defendant. ) _____________________________________) Case No. EDCV 10-1202 AJW MEMORANDUM OF DECISION 17 18 Plaintiff filed this action seeking reversal of the decision of the Commissioner of the Social Security 19 Administration (the Commissioner ) denying plaintiff s application for supplemental security income 20 ( SSI ) benefits. The parties have filed a Joint Stipulation ( JS ) setting forth their contentions with respect 21 to the disputed issue(s). 22 Administrative Proceedings 23 Plaintiff filed an application for SSI benefits on August 22, 2007 alleging disability since 1998 due 24 to bipolar disorder, chronic low back pain and spasms, and diabetes mellitus. [JS 2]. In a January 21, 2010 25 written hearing decision that constitutes the Commissioner s final decision in this matter, an administrative 26 law judge (the ALJ ) found that plaintiff retained the residual functional capacity ( RFC ) for a restricted 27 range of light work. The ALJ concluded that plaintiff was not disabled because her RFC did not preclude 28 her from performing jobs that exist in significant numbers in the national economy. [JS 2; Administrative 1 2 Record ( AR ) 14-24]. Standard of Review 3 The Commissioner s denial of benefits should be disturbed only if it is not supported by substantial 4 evidence or is based on legal error. Stout v. Comm r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 5 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). Substantial evidence means more than 6 a mere scintilla, but less than a preponderance. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 7 2005). It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 8 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is 9 required to review the record as a whole and to consider evidence detracting from the decision as well as 10 evidence supporting the decision. Robbins v. Soc. Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); 11 Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). Where the evidence is susceptible to more than 12 one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld. 13 Thomas, 278 F.3d at 954 (citing Morgan v. Comm r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)). 14 Discussion 15 RFC assessment and step five finding 16 Plaintiff s contentions are interrelated. She contends that the ALJ erroneously omitted from his RFC 17 finding certain limitations assessed by the consultative psychological examiner, Mark D. Pierce, Ph.D, 18 whose opinion the ALJ credited. Plaintiff argues that the improper formulation of plaintiff s RFC led the 19 ALJ to pose incomplete hypothetical questions to the vocational expert and to erroneously find that plaintiff 20 can perform the alternative jobs of cleaner, hand packager, and garment sorter.[JS 3-17]. 21 Dr. Pierce conducted a psychological evaluation of plaintiff at the Commissioner s request on 22 October 14, 2009. [AR 355-365]. He elicited a history, reviewed medical records, conducted a mental status 23 examination, and administered several psychological tests (the Rey 15-Item Test, Test of Malingered 24 Memory, Wechsler Adult Intelligence Scale-III, Trails A and B, Wechsler Memory Scale-III, and the 25 Minnesota Multiphasic Personality Inventory, Second Edition). Dr. Pierce described plaintiff as a historian 26 of doubtful reliability who dramatically under-performs with most administered testing. [AR 355]. Dr. 27 Pierce diagnosed bipolar disorder (by history and per labile presentation today, currently untreated, as she 28 is between treating sources as described) and malingering (feigning of cognitive and psychiatric disability 2 1 strongly suspected throughout today s lackluster testing and interview performance). [AR 360]. Dr. Pierce 2 also found that plaintiff had borderline intellectual functioning (minimally estimated, claimant dramatically 3 underperforms with the majority of testing today). [AR 361]. 4 In what he described as a conservative assessment given plaintiff s lack of motivation and under- 5 performance on testing, Dr. Pierce concluded that plaintiff could complete simple and repetitive vocational 6 skills and adapt[] to minimal changes in the work environment, but would appear to show difficulty 7 working effectively with others, due to the selective non-cooperation seen today and per records review 8 historically. [AR 361]. Dr. Pierce also opined that plaintiff can remember and comply with simple one 9 and two part instructions and concentrate adequately for a regular, full-time work schedule. [AR 361]. 10 The ALJ said that Dr. Pierce s opinion was supported by the other objective evidence of record and 11 is consistent with the other findings herein, and he said that he was giving that opinion great weight. [AR 12 22]. The ALJ found that plaintiff had nonexertional mental limitations restricting her to work involving 13 simple repetitive tasks in a non-public setting and that she is precluded from work requiring hyper- 14 vigilance or involving responsibility for the safety of others. [AR 18]. Plaintiff argues that the ALJ 15 improperly omitted from his RFC finding Dr. Pierce s limitations to tasks involving simple one and two part 16 instructions and plaintiff s difficulty working effectively with others. 17 Plaintiff s argument lacks merit. Dr. Pierce concluded that plaintiff could perform simple and 18 repetitive vocational skills [AR 361], which the ALJ permissibly interpreted as a limitation to work 19 involving simple repetitive tasks. [AR 18]. Dr. Pierce also said that plaintiff could remember and comply 20 with simple one and two part instructions, but the ALJ did not include that specific limitation in his RFC 21 finding. Any error in the ALJ s omission of that limitation from his RFC finding was harmless because 22 plaintiff has not met her burden to show resulting prejudice, nor do the circumstances of the case show a 23 substantial likelihood of prejudice warranting a remand for further administrative review. See McLeod 24 v. Astrue, F.3d , 2011 WL 1886355, *4-*5 (9th Cir. 2011) (holding that the harmless error rule 25 articulated in Shinseki v. Sanders, U.S. , 129 S.Ct. 1696 (2009) applies in social security disability 26 cases). 27 Based on the vocational expert s hearing testimony, the ALJ found that plaintiff s RFC enabled her 28 to perform the job of cleaner as defined by the Dictionary of Occupational Titles ( DOT ), occupational 3 1 code number 323.687-014, and that approximately 200,000 such positions exist in the national economy.1 2 [See AR 23-24, 398]. The DOT states that the job of cleaner, housekeeping requires Level 1 reasoning 3 development, which means the ability to apply commonsense understanding to carry out simple one- or 4 two-step instructions. Deal with standardized situation with occasional or no variable in or from these 5 situations encountered on the job. (Italics added.) See DOT, U. S. Department of Labor, Appendix C, 6 Components of the Definition Trailer (4th ed. rev.1991) ( DOT, Appendix C ).2 Thus, even if the ALJ 7 erred in omitting from his RFC finding a restriction to simple one or two part instructions, he identified a 8 job existing in significant numbers that plaintiff could perform consistent with that limitation and the 9 additional limitations in his RFC finding.3 10 Plaintiff also contends that the ALJ s RFC finding does not adequately account for Dr. Pierce s 11 conclusion that plaintiff would appear to show difficulty working effectively with others, due to the 12 selective non-cooperation she displayed during the examination. [AR 361] The ALJ interpreted that aspect 13 of Dr. Pierce s opinion as a limitation to work in a non-public setting. [AR 18]. In light of Dr. Pierce s 14 15 16 17 18 1 The title of the job in the DOT is cleaner, housekeeping and the first three digits of the occupational code indicates that it falls within the occupational groups Service Occupations, Lodging and Related Service Occupations, and Housecleaners, Hotels, Restaurants, and Related Establishments. 2 All DOT jobs classifications include a General Educational Development ( GED ) component. The GED 19 embraces those aspects of education (formal and informal) which are required of the worker for satisfactory job performance. This is education of a general nature which does not have a recognized, fairly specific occupational objective. Ordinarily, such education is obtained in elementary school, high school, or college. 20 21 22 23 24 25 26 27 28 DOT, Appendix C. Thus, the GED component defines the general educational attainment required to perform the job, rather than specific job prerequisites or job skills. The GED component consists of three scales: Reasoning Development, Math Development, and Language Development. The reasoning, math, and language development scales range from Level 1 (low) to Level 6 (high).See DOT, Appendix C. 3 The other two jobs identified by the vocational expert, hand packager, DOT occupational code number 920.587-018, and garment sorter, DOT occupational code number 232.687-014, require Level 2 reasoning development, which is defined as the ability to use common sense to comply with detailed but uninvolved instructions. DOT, Appendix C. 4 1 conclusion that plaintiff was selectively uncooperative, demonstrated consistently challenged 2 motivation during the examination, and was malingering, the ALJ s interpretation was not only reasonable, 3 but generous to plaintiff. Accordingly, the ALJ did not err in limiting plaintiff to work in a non-public 4 setting. Furthermore, there is no basis in Dr. Pierce s report or in the ALJ s decision for concluding that 5 by non-public the ALJ meant that plaintiff was precluded from any public contact whatsoever. 6 The vocational expert testified that a person limited to work in a non-public setting who had the 7 other limitations posited by the ALJ could perform the jobs of cleaner, garment sorter, and hand-packager. 8 The job of cleaner, housekeeping as defined by the DOT is consistent with a limitation to work in a non- 9 public setting because it does not involve a significant degree of relating to or interacting with people, 10 whether coworkers or the general public. This is reflected in the occupational code itself. The fourth, fifth, 11 and sixth digits of every DOT occupational code are Worker Function codes, which refer to how a worker 12 functions in that job with respect to Data, People, and Things, respectively. These digits express a 13 job's relationship to Data, People, and Things by identifying the highest appropriate function in each listing 14 and indicating whether the relationship is significant or not significant. DOT, U.S. Department of Labor, 15 Appendix B, Explanation of Data, People, and Things (4th ed. rev. 1991) ( DOT, Appendix B ). 16 The fifth digit of the occupational code of cleaner, housekeeping is an 8, which denotes taking 17 instructions-helping people. Taking instructions-helping is defined as [a]ttending to the work 18 assignment instructions or orders of supervisor. (No immediate response required unless clarification of 19 instructions or orders is needed.) Helping applies to non-learning helpers. DOT, Appendix B. The level 20 of taking instructions and helping people in the job of cleaner is not significant. This not significant 21 rating subsumes any less complex relationships with people and excludes any more complex relationships. 22 See DOT, Appendix B. 23 Therefore, the ALJ did not err in finding that plaintiff could perform the DOT job of cleaner, 24 housekeeping with a limitation to non-public work. 25 /// 26 /// 27 /// 28 5 1 Any error in the ALJ s formulation of plaintiff s RFC was harmless because the ALJ permissibly 2 found that plaintiff retains the RFC to perform the job of cleaner, housekeeper, which exists in significant 3 numbers. See McLeod, F.3d at , 2011 WL 1886355, at *5 ( [W]here harmlessness is clear and not 4 a borderline question, remand for reconsideration is not appropriate. ) (internal quotation marks and 5 footnote omitted). Even if the other two jobs identified by the ALJ exceed plaintiff s RFC for work 6 involving simple one and two step instructions, as plaintiff contends, the ALJ s finding of non-disability 7 at step five was supported by substantial evidence and is free of legal error. 8 9 Conclusion For the reasons described above, the Commissioner's decision is affirmed. 10 11 12 13 14 June 1, 2011 ________________________ ANDREW J. WISTRICH United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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