John F Chopp v. Michael J Astrue, No. 5:2012cv00291 - Document 20 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Sheri Pym: (see document image for further details). IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits, and dismissing the complaint 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 JOHN F. CHOPP, 12 13 14 15 16 17 18 ) ) Plaintiff, ) ) v. ) ) ) CAROLYN W. COLVIN, ) Acting Commissioner of Social Security ) Administration, ) ) Defendant. ) ) ) Case No. ED CV 12-291-SP MEMORANDUM OPINION AND ORDER 19 I. 20 INTRODUCTION 21 On March 5, 2012, plaintiff John F. Chopp filed a complaint against 22 defendant, the Commissioner of the Social Security Administration 23 ( Commissioner ), seeking a review of a denial of supplemental security income 24 ( SSI ) benefits. Both plaintiff and defendant have consented to proceed for all 25 purposes before the assigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). 26 The court deems the matter suitable for adjudication without oral argument. 27 Plaintiff presents two issues for decision: (1) whether the Administrative 28 1 1 Law Judge ( ALJ ) properly discounted plaintiff s credibility; and (2) whether the 2 ALJ erred at step five. Memorandum of Points and Authorities in Support of 3 Plaintiff s Complaint ( P. Mem. ) at 4-20; Memorandum in Support of 4 Defendant s Answer ( D. Mem. ) at 2-8. 5 Having carefully studied, inter alia, the parties s moving papers, the 6 Administrative Record ( AR ), and the decision of the ALJ, the court concludes 7 that, as detailed herein, the ALJ properly discounted plaintiff s credibility. 8 Further, although the ALJ erred in part at step five, such error was harmless. 9 Consequently, this court affirms the decision of the Commissioner denying 10 benefits. 11 II. 12 FACTUAL AND PROCEDURAL BACKGROUND 13 Plaintiff, who was fifty-four years old on the date of his March 16, 2010 14 administrative hearing, is a high school graduate. AR at 19, 51, 136. Plaintiff has 15 no past relevant work. Id. at 44, 78. 16 On April 24, 2008, plaintiff protectively filed an application for SSI, 17 alleging an onset date of November 1, 2001, due to paranoia, schizophrenia, 18 bipolar disorder, and hepatitis C. Id. at 130, 136, 142. The Commissioner denied 19 plaintiff s application initially and upon reconsideration, after which he filed a 20 request for a hearing. Id. at 91-95, 98-102. 21 On March 16, 2010, plaintiff, represented by counsel, appeared and testified 22 at a hearing before the ALJ. Id. at 51-85. The ALJ also heard testimony from 23 Stephen P. Davis, a vocational expert ( VE ). Id. at 76-83. On April 16, 2010, 24 the ALJ denied plaintiff s claim for benefits. Id. at 35-46. 25 Applying the well-known five-step sequential evaluation process, the ALJ 26 found, at step one, that plaintiff had not engaged in substantial gainful activity 27 since April 24, 2008, the application date. Id. at 37. 28 2 1 At step two, the ALJ found that plaintiff suffered from the following severe 2 impairments: degenerative disc disease; intermittent explosive disorder; alcohol 3 abuse; and personality disorder.1 Id. 4 At step three, the ALJ found that plaintiff s impairments, whether 5 individually or in combination, did not meet or medically equal one of the listed 6 impairments set forth in 20 C.F.R. part 404, Subpart P, Appendix 1 (the 7 Listings ). Id. The ALJ then assessed plaintiff s RFC2 and determined that he had the RFC 8 9 to perform medium work, with the limitations that plaintiff: could lift/carry fifty 10 pounds occasionally and twenty-five pounds frequently; could stand/walk six 11 hours in an eight-hour workday; required an option to sit/stand every thirty 12 minutes; was precluded from work around hazardous machinery, heights, and 13 contact with the general public; required a low stress job setting, one with little to 14 no change in the day-to-day work routine; and could have occasional contact with 15 co-workers. Id. at 38. The ALJ also determined that plaintiff could understand, 16 remember, and carry out simple one- or two-step job tasks. Id. The ALJ found, at step four, that plaintiff had no past relevant work. Id. at 17 18 44. 19 At step five, the ALJ found that there were jobs that existed in significant 20 numbers in the national economy that plaintiff could perform, including laborer 21 stores and porter, used car lot. Id. at 44-45. Consequently, the ALJ concluded that 22 23 24 1 The ALJ ruled out depressive disorder. AR at 37. 2 Residual functional capacity is what a claimant can do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 26 1155-56 n.5-7 (9th Cir. 1989). Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ 27 assesses the claimant s residual functional capacity. Massachi v. Astrue, 486 28 F.3d 1149, 1151 n.2 (9th Cir. 2007). 3 1 plaintiff did not suffer from a disability as defined by the Social Security Act 2 ( SSA ). Id. at 45. 3 Plaintiff filed a timely request for review of the ALJ s decision, which was 4 denied by the Appeals Council. Id. at 1-3. The ALJ s decision stands as the final 5 decision of the Commissioner. 6 III. 7 STANDARD OF REVIEW 8 This court is empowered to review decisions by the Commissioner to deny 9 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 10 Administration must be upheld if they are free of legal error and supported by 11 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 12 (as amended). But if the court determines that the ALJ s findings are based on 13 legal error or are not supported by substantial evidence in the record, the court 14 may reject the findings and set aside the decision to deny benefits. Aukland v. 15 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 16 1144, 1147 (9th Cir. 2001). 17 Substantial evidence is more than a mere scintilla, but less than a 18 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such 19 relevant evidence which a reasonable person might accept as adequate to support 20 a conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 21 F.3d at 459. To determine whether substantial evidence supports the ALJ s 22 finding, the reviewing court must review the administrative record as a whole, 23 weighing both the evidence that supports and the evidence that detracts from the 24 ALJ s conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be 25 affirmed simply by isolating a specific quantum of supporting evidence. 26 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 27 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 28 4 1 the ALJ s decision, the reviewing court may not substitute its judgment for that 2 of the ALJ. Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 3 1992)). 4 IV. 5 DISCUSSION 6 A. The ALJ Provided Clear and Convincing Reasons for Discounting 7 Plaintiff s Credibility 8 Plaintiff complains that the ALJ failed to provide sufficient reasons to reject 9 his testimony regarding his mental limitations. P. Mem. at 4-14. The court 10 disagrees. 11 The ALJ must make specific credibility findings, supported by the record. 12 Social Security Ruling ( SSR ) 96-7p.3 To determine whether testimony 13 concerning symptoms is credible, the ALJ engages in a two-step analysis. 14 Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, the ALJ 15 must determine whether a claimant produced objective medical evidence of an 16 underlying impairment which could reasonably be expected to produce the pain 17 or other symptoms alleged. Id. at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 18 341, 344 (9th Cir. 1991) (en banc)). Second, if there is no evidence of 19 malingering, an ALJ can reject the claimant s testimony about the severity of her 20 symptoms only by offering specific, clear and convincing reasons for doing so. 21 Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Benton v. Barnhart, 331 22 F.3d 1030, 1040 (9th Cir. 2003). The ALJ may consider several factors in 23 24 25 26 27 28 3 The Commissioner issues Social Security Rulings to clarify the Act s implementing regulations and the agency s policies. SSRs are binding on all components of the SSA. SSRs do not have the force of law. However, because they represent the Commissioner s interpretation of the agency s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations. Holohan v. Massanari, 246 F.3d 1195, 1203 n.1 (9th Cir. 2001) (internal citations omitted). 5 1 weighing a claimant s credibility, including: (1) ordinary techniques of credibility 2 evaluation such as a claimant s reputation for lying; (2) the failure to seek 3 treatment or follow a prescribed course of treatment; and (3) a claimant s daily 4 activities. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); Bunnell, 5 947 F.2d at 346-47. 6 At the first step, the ALJ found that plaintiff s medically determinable 7 impairments could reasonably be expected to cause the symptoms alleged. AR at 8 41. 9 At the second step, because the ALJ did not find any evidence of 10 malingering, the ALJ was required to provide clear and convincing reasons for 11 discounting plaintiff s credibility. Here, the ALJ discounted plaintiff s credibility 12 because: (1) there were contradictions between his testimony and statements he 13 made elsewhere; (2) his daily activities were inconsistent with his symptoms; (3) 14 he had a poor work history; (4) his symptoms were inconsistent with observations 15 made during an in-person interview; (5) the objective medical evidence did not 16 support his symptoms; (6) he received conservative treatment; and (7) he failed to 17 adhere to his treatment. Id. at 39-44. 18 The first ground the ALJ provided for finding plaintiff less credible was the 19 inconsistencies between plaintiff s testimony and other statements made by 20 himself and a third party. Id. at 39-40, 43. The ALJ noted that, at the hearing, 21 plaintiff testified that he did not drive, had no social activities other than seeing a 22 girlfriend once a week, used a self-made cane to assist his walking, and only 23 abused marijuana in the past. Id. at 39-40, 59, 61, 64, 71, 75. In plaintiff s 24 Function Report, however, he indicated that he drove when he went out and that 25 he did not use a cane or other assistive device. Id. at 159, 162. In a Third Party 26 Function Report, plaintiff s friend indicated that she saw him three times a week. 27 Id. at 148. And during his psychiatric consultative examination, plaintiff told the 28 6 1 examining psychiatrist that he also previously abused methamphetamine. Id. at 2 265. These inconsistences constitute a clear and convincing reason for 3 discounting plaintiff.4 4 The second ground for an adverse credibility finding plaintiff s daily 5 activities were inconsistent with the severity of his symptoms was also clear and 6 convincing. Id. at 40; see also Morgan v. Comm r, 169 F.3d 595, 600 (9th Cir. 7 1999) (a claimant s ability to spend a substantial part of his day engaged in 8 pursuits involving the performance of physical functions that are transferable to a 9 work setting may be sufficient to discredit him). The ALJ noted that plaintiff, 10 among other things, took care of his personal needs, prepared meals, drove a car, 11 handled money, was teaching himself to play the guitar, and attended meetings at 12 the Behavioral Health Center. Id. at 40, 156-63. A claimant does not need to be 13 utterly capacitated, Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989), and the 14 mere fact a [claimant] has carried on certain daily activities, such as grocery 15 shopping, driving a car, or limited walking for exercise, does not in any way 16 17 4 In addition, the court notes that the record contains other inconsistencies not 18 specifically mentioned by the ALJ that are clear and convincing reasons for 19 finding plaintiff less credible, including his statements concerning whether he shopped at stores, whether he received inpatient mental health treatment, and his 20 employment history. Plaintiff testified that he did not go to stores and had not 21 been in a supermarket for as long as [he could] remember. Id. at 71. But this testimony is directly contradicted by his own function report in which he wrote 22 that he shops at stores. Id. at 159. As for his mental health treatment, plaintiff 23 made several statements to psychologists at the California Department of 24 Corrections ( DOC ) that he had not received any inpatient mental health treatment, but he told the consultative examiner that he had two admissions to a 25 psychiatric hospital. Id. at 243, 265, 333. Plaintiff also testified that he had not 26 worked in years and listed only one job in the prior fifteen years in his application. Id. at 63, 143. In 2006, however, his DOC records indicate that he was gainfully 27 employed. Id. at 253. 28 7 1 detract from her credibility as to her overall disability. Vertigan v. Halter, 260 2 F.3d 1044, 1050 (9th Cir. 2001). But here, plaintiff s daily activities were 3 inconsistent with the alleged severity of his mental impairment. Contrary to 4 plaintiff s claims that he had trouble focusing, remembering, and interacting with 5 people (see AR at 56, 73), plaintiff was able to complete tasks and engage in 6 limited regular interaction with people. Moreover, the ALJ did not completely 7 discredit the symptoms. Indeed, the ALJ incorporated certain limitations e.g., 8 precluding contact with the general public in his RFC determination. AR at 38. 9 Third, the ALJ concluded that plaintiff s sparse work history was a reason 10 to find him less credible. Id. at 40; see Thomas v. Barnhart, 278 F.3d 947, 959 11 (9th Cir. 2002) (finding that a poor work history is a clear and convincing reason 12 to discount a claimant s credibility). The ALJ noted that plaintiff had a limited 13 work history, holding only two jobs in the prior twenty years. AR at 40, 143. 14 Although plaintiff s prison terms likely accounted for some of the poor work 15 history, there is no evidence that plaintiff s prison terms were the reason that 16 plaintiff held so few jobs. See, e.g., id. at 56, 59, 231. In addition, the ALJ noted 17 that while plaintiff claimed he became unable to work on November 1, 2001 due 18 to his conditions, plaintiff also said he could not remember why he stopped 19 working on October 31, 2001. Id. at 40, 142. 20 Fourth, the ALJ observed that plaintiff was able to participate in a lengthy 21 interview with an SSA employee, during which the employee did not observe any 22 problems with, among other things, plaintiff s understanding, coherency, and 23 talking. Id. at 41, 138. The ALJ correctly considered the observations of the SSA 24 employee. SSR 96-7p ( The adjudicator must also consider any observations 25 about the individual recorded by [SSA] employees during interviews. ). Although 26 the observations of the SSA employee may not be the sole basis for finding a 27 28 8 1 claimant less credible, here it was one of several bases and not the sole basis. See 2 id. 3 Fifth, the ALJ concluded that the objective medical evidence did not 4 support plaintiff s symptoms. AR at 41-44. An ALJ may not reject a claimant s 5 subjective complaints based solely on a lack of objective medical evidence to fully 6 corroborate the alleged severity of pain, but it may be one factor used to evaluate 7 credibility. Bunnell, 947 F.2d at 345; see also Rollins v. Massanari, 261 F.3d 853, 8 856 (9th Cir. 2001). Here, the ALJ noted that in 2005 and 2009, plaintiff was 9 given a global assessment functioning ( GAF ) score of sixty-five, and in 2008, a 10 consultative psychiatrist, Dr. Ernest A. Bagner, opined that plaintiff s GAF score 11 was 70.5 Id. at 41-43, 245, 266, 332. Further, during periods when not medicated, 12 plaintiff did not appear to have problems. In 2005, plaintiff was observed to be 13 functioning well and gainfully employed. Id. at 41, 335. And in 2008, Dr. Bagner 14 observed that plaintiff had intact and coherent speech, had a tight thought process, 15 was able to take care of himself and household duties, was alert and oriented, and 16 had normal reality contact. Id. at 43, 266. The lack of objective medical evidence 17 to support plaintiff s claims was clear and convincing. 18 Finally, the remaining grounds for the adverse credibility finding 19 conservative treatment and failure to adhere to treatment plan were similarly 20 clear and convincing. Id. at 41-42; see Parra v. Astrue, 481 F.3d 742, 751 (9th 21 Cir. 2007) ( [E]vidence of conservative treatment is sufficient to discount a 22 claimant s testimony regarding severity of an impairment. ); Tommasetti, 533 F.3d 23 at 1039 (failure to follow a prescribed course of treatment weighs against a 24 25 5 A GAF rating of 61-70 indicates some mild symptoms [] OR some 26 difficulty in social, occupational, or school functioning [], but generally functioning pretty well, has some meaningful interpersonal relationships. Am. 27 Psychiatric Ass n, Diagnostic and Statistical Manual of Mental Disorders 34 (4th 28 Ed. 2000) ( DSM ). 9 1 claimant s credibility). With regard to plaintiff s treatment plan, the ALJ noted 2 plaintiff was treated with antidepressants and regular follow-up appointments, 3 which was conservative. AR at 42; see, e.g., Kellerman v. Astrue, No. 11-4727, 4 2012 WL 3070781, at *8 (N.D. Cal. Jul. 27, 2012) (finding that a claimant who 5 was only prescribed anti-depressants was receiving conservative treatment).6 6 Moreover, plaintiff failed to follow his treatment plan by refusing medication for a 7 period of time and missing many appointments. Id. at 41-42, 195, 231, 253. 8 Although the inability to afford medication and treatment may be a valid reason 9 for failing to adhere to set treatment or a treatment plan, it was inapplicable here. 10 See Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (failure to seek treatment 11 may be a basis for an adverse credibility finding unless there was a good reason 12 for not doing so). Plaintiff testified that he was not taking medication because he 13 was no longer on parole; he could not afford medication otherwise and could not 14 easily go to a free clinic. See id. at 56-57. But this did not explain why plaintiff 15 stopped his medication in 2005. See id. at 195. Nor did it explain how plaintiff 16 was then able to resume treatment and medication shortly after the hearing. See, 17 e.g., id. at 345. 18 In sum, the ALJ cited multiple clear and convincing reasons supported by 19 substantial evidence for discounting plaintiff s credibility. Thus, the ALJ s 20 finding was proper. 21 B. The ALJ Erred in Part at Step Five, But Such Error Was Harmless 22 Plaintiff argues that the ALJ erred at Step 5. P. Mem. at 14-20. 23 Specifically, plaintiff alleges that the ALJ committed three errors: (1) plaintiff 24 cannot perform the job of a laborer stores; (2) the ALJ failed to ask the VE to 25 6 Although plaintiff also went to the Behavioral Health Center on a regular basis, the purpose of those visits (e.g., psychiatric treatment, substance abuse 27 treatment, anger management treatment) is unclear. Plaintiff stated that he had 28 meetings or classes at the Behavioral Health Center. AR at 160. 26 10 1 further explain what he meant by accommodate; and (3) the ALJ failed to 2 propound a complete hypothetical to the VE. Id. 3 At step five, the burden shifts to the Commissioner to show that the 4 claimant retains the ability to perform other gainful activity. Lounsburry v. 5 Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). To support a finding that a 6 claimant is not disabled at step five, the Commissioner must provide evidence 7 demonstrating that other work exists in significant numbers in the national 8 economy that the claimant can perform, given his or her age, education, work 9 experience, and RFC. 20 C.F.R. § 416.912(f). 10 ALJs routinely rely on the Dictionary of Occupational Titles ( DOT ) in 11 evaluating whether the claimant is able to perform other work in the national 12 economy. Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990) (citations 13 omitted); see also 20 C.F.R. § 416.966(d)(1) (DOT is a source of reliable job 14 information). The DOT is the rebuttable presumptive authority on job 15 classifications. Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995). An ALJ 16 may not rely on a VE s testimony regarding the requirements of a particular job 17 without first inquiring whether the testimony conflicts with the DOT, and if so, the 18 reasons therefor. Massachi, 486 F.3d at 1152-53 (discussing SSR 00-4p). But 19 failure to so inquire can be deemed harmless error where there is no apparent 20 conflict or the VE provides sufficient support to justify deviation from the DOT. 21 Id. at 1154 n.19. In order for an ALJ to accept a VE s testimony that contradicts 22 the DOT, the record must contain persuasive evidence to support the deviation. 23 Id. at 1153 (quoting Johnson, 60 F.3d at 1435). Evidence sufficient to permit such 24 a deviation may be either specific findings of fact regarding the claimant s residual 25 functionality, or inferences drawn from the context of the expert s testimony. 26 Light v. Soc. Sec. Admin., 119 F.3d 789, 793 (9th Cir. 1997) (as amended). 27 Here, the ALJ asked the VE several hypotheticals. AR at 78-83. In 28 11 1 response to a hypothetical person with plaintiff s RFC, the VE testified that 2 plaintiff could perform the job of a porter at a used car lot, with erosion depending 3 on the length of time a person would have to be seated. Id. at 80. The VE also 4 testified that a person with the same limitations but the ability to perform only 5 light work could perform the jobs of a table worker and assembler of electrical 6 equipment. Id. In the decision, the ALJ concluded that based on the VE s 7 testimony, plaintiff could perform the jobs of laborer and porter. Id. at 45. 8 Plaintiff correctly argues that the VE testified a person with plaintiff s RFC 9 could not perform the job of a laborer at stores. Id. at 79-81. The ALJ erred when 10 he determined that plaintiff could perform such job. But the error was harmless 11 because the VE identified other jobs plaintiff could perform, one of which the ALJ 12 cited. 13 Plaintiff s second argument is that the ALJ should have conducted further 14 inquiry regarding the VE s use of the term accommodate when testifying about 15 the sit/stand option because the VE may have been improperly applying the 16 reasonable accommodation standard under the Americans with Disabilities Act 17 ( ADA ). P. Mem. at 17-19; see Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 18 795, 119 S. Ct. 1597, 143 L. Ed. 2d 966 (1999) (distinguishing how disability is 19 determined under the SSA and ADA). Plaintiff s argument depends on an 20 unreasonable interpretation of the testimony. It was the ALJ who first used the 21 word accommodate, asking, Would any of those jobs accommodate that 22 additional [sit/stand] limitation? AR at 80. The VE responded that they all 23 would accommodate it, but I think there might be erosion on a couple of them. 24 Id. On its face, the VE s testimony clearly shows that he was not talking about 25 individual accommodations pursuant to the ADA, but rather the percentage of the 26 identified jobs an individual with certain limitations could perform, as such jobs 27 are generally performed. Accordingly, plaintiff s second argument is without 28 merit. 12 1 Finally, plaintiff argues that the ALJ failed to propound a complete 2 hypothetical because he failed to define how much time plaintiff required when he 3 sat or stood every thirty minutes. P. Mem. at 19-20. Plaintiff claims this 4 definition was necessary because the VE testified whether the porter job could 5 accommodate the sit/stand limitation would depend on how long the person would 6 have the be seated. Id. at 19. In fact, the VE testified that with the sit/stand 7 limitation the porter job would have erosion, depending on how long the person 8 would have to be seated. AR at 81. Thus, the VE did not testify that such 9 limitation might erode the position entirely, but instead seemed to indicate that 10 whether there was any erosion would depend on the length of sitting time required. 11 Plaintiff is correct that, on its face, this line of testimony seems to have called for 12 the ALJ to follow up by specifying the length of sitting or standing time in the 13 hypothetical. But even if the ALJ were required to specify the amount of time 14 plaintiff needed to sit or stand, any such error is harmless. 15 The VE testified that there were approximately 11,000 porter jobs in 16 California, and that, without knowing how long the person would have to be 17 seated, the VE would erode that right off the top by 25 percent. AR at 79, 81. 18 There is nothing in the VE s testimony to indicate that even a lengthy period of 19 required sitting time would erode the number of porter jobs available to less than a 20 significant number. Assuming an unusually high rate of erosion such as eighty 21 percent due to the amount of time plaintiff needed to sit or stand every thirty 22 minutes, there would still be porter jobs in California existing in significant 23 numbers 2,200 jobs that plaintiff could perform. See Barker v. Sec y of Health 24 & Human Servs., 882 F.2d 1474, 1478-79 (9th Cir. 1989) (citing approvingly 25 decisions that have found several hundred jobs significant ). 26 Moreover, although not noted by the ALJ, the VE testified that plaintiff 27 could perform the job of assembler of electrical equipment with no erosion. AR at 28 80; see 20 C.F.R. § 416.967(c) (a claimant who can do medium work can also do 13 1 light and sedentary work). Thus, even if the length of time plaintiff required to 2 sit/stand eroded all of the porter jobs, plaintiff could still perform the job of an 3 assembler. 4 As such, the ALJ s error at step five does not warrant relief. Although the 5 ALJ erred when it concluded that plaintiff could perform the job of laborer, there 6 were other jobs existing in significant numbers that plaintiff could perform. 7 V. 8 CONCLUSION 9 IT IS THEREFORE ORDERED that Judgment shall be entered 10 AFFIRMING the decision of the Commissioner denying benefits, and dismissing 11 the complaint with prejudice. 12 13 DATED: March 18, 2013 14 15 SHERI PYM United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 14

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