Saveta Felix v. Michael J. Astrue, No. 5:2011cv00925 - Document 17 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION; ORDER by Magistrate Judge Oswald Parada: (see document image for further details). Based on the foregoing, IT THEREFORE IS ORDERED that Judgment be entered affirming the decision of the Commissioner, and dismissing this action with prejudice. (ad)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 SAVETA FELIX, ) Case No. EDCV 11-925-OP ) Plaintiff, ) v. ) MEMORANDUM OPINION; ORDER ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ) 17 The Court1 now rules as follows with respect to the disputed issue listed in 18 the Joint Stipulation ( JS ).2 19 / / / 20 / / / 21 / / / 22 23 1 24 25 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the United States Magistrate Judge in the current action. (See ECF Nos. 8, 9.) 2 As the Court stated in its Case Management Order, the decision in this case is made on the basis of the pleadings, the Administrative Record, and the 27 Joint Stipulation filed by the parties. In accordance with Rule 12(c) of the Federal 28 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). (ECF No. 6 at 3.) 26 1 1 I. 2 DISPUTED ISSUES 3 As reflected in the Joint Stipulation, the sole disputed issue raised by 4 Plaintiff as the ground for reversal and/or remand is whether the Administrative 5 Law Judge ( ALJ ) properly addressed Plaintiff s ability to perform work 6 available at the regional and national levels at Step 5 of the Sequential Evaluation 7 Process. (JS at 3.) 8 II. 9 STANDARD OF REVIEW 10 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s decision 11 to determine whether the Commissioner s findings are supported by substantial 12 evidence and whether the proper legal standards were applied. DeLorme v. 13 Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means more 14 than a mere scintilla but less than a preponderance. Richardson v. Perales, 402 15 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Desrosiers v. Sec y of 16 Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial 17 evidence is such relevant evidence as a reasonable mind might accept as adequate 18 to support a conclusion. Richardson, 402 U.S. at 401 (citation omitted). The 19 Court must review the record as a whole and consider adverse as well as 20 supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). 21 Where evidence is susceptible of more than one rational interpretation, the 22 Commissioner s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 23 1452 (9th Cir. 1984). 24 III. 25 DISCUSSION 26 A. The ALJ s Decision. 27 The ALJ found that Plaintiff has the severe impairments of adjustment 28 disorder with depression; borderline intellectual functioning; obesity; anemia; and 2 1 status post gastric bypass surgery. (Administrative Record ( AR ) at 11.) The 2 ALJ also found that Plaintiff had the residual functional capacity ( RFC ) to 3 perform a range of light work, and that Plaintiff is able to understand, remember, 4 and carry out simple, repetitive tasks, with one to two step instructions, and 5 occasionally interact with the public and coworkers. (Id. at 14.) 6 The ALJ concluded that considering Plaintiff s age, education, work 7 experience, and RFC, there are jobs that exist in significant numbers in the 8 national economy that Plaintiff can perform. (Id. at 20.) To determine the extent 9 to which Plaintiff s limitations erode the unskilled light occupational base, the 10 ALJ asked the VE whether jobs exist in the national economy for an individual 11 with Plaintiff s age, education, work experience, and RFC. Relying on the 12 testimony of the VE, the ALJ determined that Plaintiff would be able to perform 13 such occupations as table worker (Dictionary of Occupational Titles ( DOT ) No. 14 739.687-182), and assembler of electrical equipment (DOT No. 729.687-010), 15 both positions which exist in significant numbers in the national economy. (AR at 16 20.) 17 B. The ALJ Properly Addressed Plaintiff s Ability to Perform Unskilled 18 Work at Step Five of His Analysis. 19 Plaintiff contends that although the hypothetical questions the ALJ posed to 20 the VE took into account the fact that Plaintiff is illiterate, the RFC and the 21 hypothetical questions failed to take into account Plaintiff s longer learning 22 curve. (JS at 4.) Specifically, Plaintiff relies on the August 30, 2008, report of 23 Dr. Jeannette K. Townsend, Ph.D. (AR at 202-07.) In that report, Dr. Townsend 24 indicated, without elaboration, that although Plaintiff could do a simple, repetitive 25 task, [b]ecause of her memory impairment she would need more repetitions and 26 take longer to learn basic work procedures. (JS at 4 (citing AR at 206).) Plaintiff 27 contends that the hypothetical questions did not include this element of Dr. 28 Townsend s opinions and that the jobs identified by the VE, with a specific 3 1 vocational preparation ( SVP ) of 2 are, therefore, beyond Plaintiff s capabilities. 2 Hoever, SVP is a term of art used in the DOT to classify how long it 3 generally takes to learn the job. Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 4 1990) (emphasis added). The regulations contain definitions for the skill 5 requirements for particular jobs, which are classified as unskilled, 6 semi-skilled, and skilled. For example, 20 C.F.R. sections 404.1568 and 7 416.968 define unskilled work as that which needs little or no judgment to do 8 simple duties that can be learned on the job in a short period of time. 20 C.F.R. 9 §§ 404.1568(a), 404.968(a). A job is deemed unskilled if a person can usually 10 learn to do the job in 30 days, and little specific vocational preparation and 11 judgment are needed. Id. § 404.1568(a). The regulations specifically state that 12 the definitions for different gradients of skill level are made in accord with the 13 Department of Labor s DOT. Id. § 404.1568 ( [O]ccupations are classified as 14 unskilled, semi-skilled, and skilled. In classifying these occupations, we use 15 materials published by the Department of Labor. ). Social Security Ruling 00-4p 16 notes that, the DOT lists an SVP for each described occupation. Using the skill 17 level definitions in [20 C.F.R. § § 404.1568] and 416.968, unskilled work 18 corresponds to an SVP of 1-2; semi-skilled work corresponds to an SVP of 3-4; 19 and skilled work corresponds to an SVP of 5-9 in the DOT. Soc. Sec. Ruling 0020 4p. An SVP level of 1 consists of unskilled jobs that can be learned after a short 21 demonstration only, while an SVP level of 2 are those jobs that require 22 [a]nything beyond short demonstration up to and including 1 month. 20 C.F.R. 23 § 404.1568 (a); see also DOT, App x C, Components of the Definition Trailer 24 (4th ed. 1991) (emphasis added); Terry, 903 F.2d at 1276 (holding that unskilled 25 jobs are those that have an SVP of 30 days or less). 26 With respect to Dr. Townsend s report, the ALJ specifically noted that he 27 gave significant weight, but not controlling weight, to that opinion. (AR at 18.) 28 He noted that Dr. Townsend determined that at all relevant times [Plaintiff] has 4 1 been able to understand, remember, and carry out simple, repetitive tasks, with one 2 to two step instructions, and she can occasionally interact with the public and 3 coworkers. (Id.) He also noted Dr. Townsend s belief that Plaintiff s score on 4 the Test of Memory Malingering indicated probably suboptimal effort and 5 represented only a minimum estimate of the claimant s functional level. (Id.) 6 The ALJ s RFC finding that Plaintiff could perform a range of light work 7 with the additional limitation to simple, repetitive tasks, with one to two step 8 instructions, and occasional interaction with the public and coworkers is even 9 more restrictive than Dr. Townsend s opinions that Plaintiff is able to understand 10 simple and detailed instructions but has difficulty with complex instructions and 11 would interact appropriately with coworkers, supervisors, and the public. 12 Moreover, Plaintiff s implied argument that Dr. Townsend s opinion that 13 Plaintiff would need more repetition and take longer to learn basic work 14 procedures means that she is incapable of performing unskilled work is 15 speculative at best. Preliminarily, Plaintiff s limitations as determined by the ALJ, 16 including the limitations to simple, repetitive tasks and to only occasional 17 interaction with the public and coworkers, are not incompatible with the 18 performance of unskilled work. See Valentine v. Comm r Soc. Sec. Admin., 574 19 F.3d 685, 691 (9th Cir. 2009) (holding that the ALJ did not err in finding that a 20 claimant with moderate limitations in the ability to carry out detailed instructions, 21 maintain attention and concentration for extended periods, interact appropriately 22 with the general public, and set realistic goals or make plans independently was 23 not disabled); Thomas v. Barnhart, 278 F.3d 947, 953, 955 (9th Cir. 2002) 24 (affirming the ALJ s finding that a claimant who had moderate mental residual 25 functional capacity limitations and a marked limitation in her ability to maintain 26 concentration over extended periods could perform unskilled jobs); Russey v. 27 Massanari, No. 00 C 50311, 2001 WL 1242901, at *2, *10 (N.D. Ill. Oct.12, 2001) 28 (holding that the ALJ properly found that a claimant who was moderately limited 5 1 in his ability to understand, remember and carry out detailed instructions, and get 2 along with peers and coworkers without distracting them or exhibiting behavioral 3 extremes, and markedly limited in his ability to interact appropriately with the 4 general public, could perform unskilled work). 5 Although Plaintiff argues that [a]n employee who has distinct trouble 6 getting up to speed may not be capable of learning the job in 30 days or less, 7 there is no evidence in the record, or in Dr. Townsend s report, that this is true of 8 Plaintiff. In fact, Dr. Townsend also opined that Plaintiff was capable of 9 performing simple, repetitive tasks, an opinion which, as discussed above, is not 10 incompatible with unskilled work. Furthermore, there is no indication in the 11 record or in Dr. Townsend s report that would indicate Plaintiff has limitations 12 that would preclude her from eventually being able to learn how to perform the 13 jobs of table worker or assembler. 14 Plaintiff would apparently have this Court find that any individual worker 15 who might take more than thirty days to learn an unskilled job would be precluded 16 from doing unskilled work. The Court has been unable to find any authority 17 supporting this proposition and declines to interpret the SVP level of a job in this 18 way. As noted by the regulations, the SVP level is a measure that helps to classify 19 any given occupation (20 C.F.R. §§ 404.1568(a)) it is not a level that must be 20 met by any specific plaintiff in order to be deemed capable of performing that 21 category of work. See, e.g., Gonzales v. Astrue, No. 1:10-cv-01330-SKO, 2012 22 WL 14002, at *13 (E.D. Cal. Jan. 4, 2012) (citation omitted) ( Defining particular 23 jobs as unskilled speaks more to the issue of the level of vocational preparation 24 necessary to perform the job rather than the issue of the job s simplicity ). 25 Additionally, the SVP level is assigned to those positions where an individual 26 can usually learn to do the job in 30 days, and does not state that any given 27 individual must be capable of learning the job in thirty days or less in fact, the 28 definition of SVP level 2 itself implies that some individuals may take more than 6 1 thirty days to learn the job. Terry, 903 F.2d at 1276. 2 Based on the foregoing, the Court finds no error. 3 IV. 4 ORDER 5 Based on the foregoing, IT THEREFORE IS ORDERED that Judgment be 6 entered affirming the decision of the Commissioner, and dismissing this action 7 with prejudice. 8 9 Dated: February 9, 2012 10 HONORABLE OSWALD PARADA United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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