Richard Cortez v. Michael J Astrue, No. 5:2012cv00413 - Document 19 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Paul L. Abrams. IT IS HEREBY ORDERED that: 1. plaintiff's request for reversal, or in the alternative, remand, is DENIED; and 2. the decision of the Commissioner is AFFIRMED. IT IS FURTHER ORDERE D that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. **See Order for details.** (ch)

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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 RICHARD CORTEZ, 13 Plaintiff, 14 15 v. 16 MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 17 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 12-413-PLA MEMORANDUM OPINION AND ORDER 18 19 I. 20 PROCEEDINGS 21 Plaintiff filed this action on March 28, 2012, seeking review of the Commissioner s denial 22 of his applications for Disability Insurance Benefits and Supplemental Security Income payments. 23 The parties filed Consents to proceed before the undersigned Magistrate Judge on April 12, 2012, 24 and April 13, 2012. Pursuant to the Court s Order, the parties filed a Joint Stipulation on 25 December 11, 2012, that addresses their positions concerning the disputed issues in the case. 26 The Court has taken the Joint Stipulation under submission without oral argument. 27 / 28 / 1 II. 2 BACKGROUND 3 Plaintiff was born on August 9, 1961. [Administrative Record ( AR ) at 46.] He has a high 4 school education [AR at 130] and past relevant work experience as a fast food attendant and a 5 fast food porter. [AR at 126, 144-50.] 6 On March 3, 2009, plaintiff protectively filed his application for Supplemental Security 7 Income payments and filed his application for Disability Insurance Benefits, alleging that he has 8 been unable to work since March 1, 2009, due to kidney failure and a knee problem. [AR at 46-49, 9 103-16, 124-31, 138-43.] After his applications were denied initially and on reconsideration, 10 plaintiff requested a hearing before an Administrative Law Judge ( ALJ ). [AR at 50-53, 55, 58- 11 65.] A hearing was held on April 1, 2010, at which time plaintiff appeared without counsel and 12 testified on his own behalf. A third party witness also testified. [AR at 23-45.] On June 29, 2010, 13 the ALJ determined that plaintiff was not disabled. [AR at 13-19.] On February 6, 2012, the 14 Appeals Council denied plaintiff s request for review. [AR at 1-4.] This action followed. 15 16 III. 17 STANDARD OF REVIEW 18 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner s 19 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial 20 evidence or if it is based upon the application of improper legal standards. Moncada v. Chater, 21 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 22 In this context, the term substantial evidence means more than a mere scintilla but less 23 than a preponderance -- it is such relevant evidence that a reasonable mind might accept as 24 adequate to support the conclusion. Moncada, 60 F.3d at 523; see also Drouin, 966 F.2d at 25 1257. When determining whether substantial evidence exists to support the Commissioner s 26 decision, the Court examines the administrative record as a whole, considering adverse as well 27 as supporting evidence. Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th 28 Cir. 1989). Where the evidence is susceptible to more than one rational interpretation, the Court 2 1 must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523; Andrews v. Shalala, 2 53 F.3d 1035, 1039-40 (9th Cir. 1995); Drouin, 966 F.2d at 1258. 3 4 IV. 5 THE EVALUATION OF DISABILITY 6 Persons are disabled for purposes of receiving Social Security benefits if they are unable 7 to engage in any substantial gainful activity owing to a physical or mental impairment that is 8 expected to result in death or which has lasted or is expected to last for a continuous period of at 9 least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin, 966 F.2d at 1257. 10 11 A. THE FIVE-STEP EVALUATION PROCESS 12 The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing 13 whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821, 14 828 n.5 (9th Cir. 1995, as amended April 9, 1996). In the first step, the Commissioner must 15 determine whether the claimant is currently engaged in substantial gainful activity; if so, the 16 claimant is not disabled and the claim is denied. Id. If the claimant is not currently engaged in 17 substantial gainful activity, the second step requires the Commissioner to determine whether the 18 claimant has a severe impairment or combination of impairments significantly limiting his ability 19 to do basic work activities; if not, a finding of nondisability is made and the claim is denied. Id. 20 If the claimant has a severe impairment or combination of impairments, the third step requires 21 the Commissioner to determine whether the impairment or combination of impairments meets or 22 equals an impairment in the Listing of Impairments ( Listing ) set forth at 20 C.F.R., Part 404, 23 Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. 24 If the claimant s impairment or combination of impairments does not meet or equal an impairment 25 in the Listing, the fourth step requires the Commissioner to determine whether the claimant has 26 sufficient residual functional capacity to perform his past work; if so, the claimant is not disabled 27 and the claim is denied. Id. The claimant has the burden of proving that he is unable to perform 28 past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a prima facie 3 1 case of disability is established. The Commissioner then bears the burden of establishing that 2 the claimant is not disabled, because he can perform other substantial gainful work available in 3 the national economy. The determination of this issue comprises the fifth and final step in the 4 sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 5 F.2d at 1257. 6 7 B. THE ALJ S APPLICATION OF THE FIVE-STEP PROCESS 8 In this case, at step one, the ALJ found that plaintiff had not engaged in any substantial 9 gainful activity since his alleged disability onset date, March 1, 2009. [AR at 15.]1 At step two, the 10 ALJ concluded that plaintiff has the severe impairments of: chronic alcohol abuse, in remission 11 by history, with alcoholic liver disease; level III obesity; and degenerative joint disease of the right 12 knee. [Id.] At step three, the ALJ determined that plaintiff does not have an impairment or 13 combination of impairments that meets or equals any of the impairments in the Listing. [AR at 16.] 14 The ALJ further found that plaintiff retained the residual functional capacity ( RFC )2 to perform 15 light work as defined in 20 C.F.R. §§ 404.1567(b), 416.967(b),3 except standing or walking six 16 hours in an eight-hour workday with customary breaks[;] sitting six hours in an eight-hour workday 17 with customary breaks[;] balancing, climbing, stooping, kneeling, crouching, or crawling 18 occasionally[;] no ladder, rope, or scaffold climbing[;] no frequent or prolonged exposure to 19 extreme cold[;] no frequent or prolonged exposure to vibration[;] and no frequent or prolonged 20 21 22 23 24 1 The ALJ concluded that plaintiff meets the insured status requirements of the Social Security Act through December 31, 2013. [AR at 15.] 2 25 26 27 28 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. See Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 3 20 C.F.R. §§ 404.1567(b), 416.967(b) define light work as work involving lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds and requiring a good deal of walking or standing or sitting most of the time with some pushing and pulling of arm or leg controls. 4 1 exposure to hepatotoxins. 4 [AR at 16.] At step four, the ALJ concluded that plaintiff is capable 2 of performing his past relevant work as a fast food restaurant worker. [AR at 18.] In the 3 alternative, the ALJ determined at step five that there are other jobs that exist in significant 4 numbers in the national economy that plaintiff can perform. [AR at 18-19.] Accordingly, the ALJ 5 concluded that plaintiff has not been under a disability from March 1, 2009, to June 29, 2010, the 6 date of the decision. [AR at 19.] 7 8 V. 9 THE ALJ S DECISION 10 Plaintiff contends that the ALJ failed to: (1) fully and fairly develop the vocational evidence, 11 and (2) properly evaluate plaintiff s credibility. [Joint Stipulation ( JS ) at 3.] As set forth below, 12 the Court respectfully disagrees with plaintiff and affirms the ALJ s decision. 13 14 A. PLAINTIFF S SUBJECTIVE SYMPTOM TESTIMONY 15 To determine whether a claimant s testimony regarding subjective pain or symptoms is 16 credible, an ALJ must engage in a two-step analysis. Lingenfelter v. Astrue, 504 F.3d 1028, 17 1035-36 (9th Cir. 2007). First, the ALJ must determine whether the claimant has presented 18 objective medical evidence of an underlying impairment which could reasonably be expected to 19 produce the pain or other symptoms alleged. Id. (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 20 (9th Cir. 1991) (en banc)). Second, if the claimant meets the first test, the ALJ may only reject the 21 claimant s testimony about the severity of his symptoms upon (1) finding evidence affirmatively 22 suggesting that the claimant was malingering, or (2) offering specific, clear and convincing reasons 23 for doing so. See Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1999); see also Lingenfelter, 504 24 F.3d at 1036; Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). The factors to be 25 considered in weighing a claimant s credibility include: (1) the claimant s reputation for 26 27 4 28 A hepatotoxin is a toxin that destroys liver cells. Dorland s Illustrated Medical Dictionary, at 810 (29th ed. 2000). 5 1 truthfulness; (2) inconsistencies either in the claimant s testimony or between the claimant s 2 testimony and his conduct; (3) the claimant s daily activities; (4) the claimant s work record; and 3 (5) testimony from physicians and third parties concerning the nature, severity, and effect of the 4 symptoms of which the claimant complains. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th 5 Cir. 2002); see also 20 C.F.R. §§ 404.1529(c), 416.929(c). If properly supported, the ALJ s 6 credibility determination is entitled to great deference. See Green v. Heckler, 803 F.2d 528, 532 7 (9th Cir. 1986). 8 At his hearing before the ALJ, plaintiff testified that his cirrhosis of the liver causes him pain 9 on his right side and abdominal swelling. [AR at 28-29, 31.] Plaintiff further testified that he has 10 pain in his right knee that is always present and that is aggravated when he stands. [AR at 32.] 11 Plaintiff stated that due to his pain, he can only be on his feet for 15 minutes at a time and can 12 only walk maybe 20 feet at a time. [AR at 34.] Plaintiff also stated that he can only sit for 30 13 minutes at a time, and does not know how much he can lift. [Id.] 14 At step one of the two-step credibility analysis, the ALJ found that plaintiff s medically 15 determinable impairments could reasonably be expected to cause the alleged symptoms. [AR 16 at 17.] The ALJ nevertheless concluded that plaintiff s statements concerning the intensity, 17 persistence and limiting effects of these symptoms are not credible to the extent they are 18 inconsistent with the [ALJ s RFC findings for plaintiff]. [Id.] At step two, whether or not the ALJ 19 found that plaintiff was malingering,5 the ALJ gave a reason supported by substantial evidence to 20 discount plaintiff s subjective symptom testimony. See Lingenfelter, 504 F.3d at 1036 (where 21 there is no evidence of malingering, the ALJ must offer specific, clear and convincing reasons 22 for rejecting the plaintiff s subjective symptom testimony). To conclude that a claimant is less than 23 fully credible, [g]eneral findings are insufficient; rather, the ALJ must identify what testimony is 24 5 25 26 27 28 The ALJ stated in his decision that [plaintiff s] limits are grossly exaggerated and rebutted by the State agency medical consultants, the consultative medical examiner, and the ... medical expert [noted] above. [AR at 18.] Thus, it is not entirely clear whether the ALJ found that plaintiff was malingering based on the findings and opinions of these physicians, or merely discounted plaintiff s credibility on that basis without finding that plaintiff was malingering. Nevertheless, the Court need not reach this issue because in either event the ALJ provided a clear and convincing reason to discount plaintiff s credibility, discussed infra. 6 1 not credible and what evidence undermines the claimant s complaints. Reddick v. Chater, 157 2 F.3d 715, 722 (9th Cir. 1998) (quoting Lester, 81 F.3d at 834); see also Dodrill, 12 F.3d at 918. 3 Among other reasons for discounting plaintiff s subjective symptom testimony, the ALJ 4 found that plaintiff s statements concerning his limitations were rebutted by the State agency 5 medical consultants, the consultative medical examiner, and the ... medical expert [who completed 6 a Medical Interrogatory Physical Impairment(s) form concerning plaintiff on May 20, 2010]. [AR 7 at 17-18.] On June 15, 2009, consultative examiner Dr. Sandra M. Eriks conducted a physical 8 examination and a neurological examination of plaintiff, and reviewed blood work and an x-ray of 9 plaintiff s right knee. [AR at 220-24.] Based on her examination, Dr. Eriks opined that plaintiff: is 10 able to lift and carry 25 pounds occasionally and 10 pounds frequently. He can stand and/or walk 11 6 hours out of an 8-hour workday. He can sit 6 hours out of an 8-hour workday. ... There are no 12 postural, manipulative, visual, communicative or environmental limitations. [AR at 223.] On July 13 1, 2009, State Agency physician S. Brodsky completed a Physical Residual Functional Capacity 14 Assessment for plaintiff, in which Dr. Brodsky opined that plaintiff can lift 20 pounds occasionally 15 and 10 pounds frequently; can stand and/or walk about 6 hours in an 8-hour workday; can sit 16 about 6 hours in an 8-hour workday; can occasionally balance, stoop, kneel, crouch, crawl, and 17 climb ramps or stairs; can never climb ladders, ropes, or scaffolds; must avoid concentrated 18 exposure to extreme cold, vibration, fumes, odors, dusts, gases, and poor ventilation; and must 19 avoid hepatotoxins. [AR at 228-32.] On the same day, Dr. Brodsky concluded that plaintiff is able 20 to sustain LIGHT [physical] RFC level performance with normal breaks over a 40[-hour] 21 [work]week. [AR at 233-35.] On October 5, 2009, a different State Agency physician, P. Ombres, 22 completed a case analysis in which Dr. Ombres disagreed with a previous physician s opinion that 23 plaintiff is capable of sustaining medium physical exertion, and affirmed the opinion that plaintiff 24 retains the RFC for light physical exertion with postural restrictions. [AR at 236-37.] Finally, on 25 May 20, 2010, medical expert Dr. John R. Morse completed a Medical Interrogatory Physical 26 Impairment(s) form concerning plaintiff. [AR at 323.] Dr. Morse opined that plaintiff can lift 10 27 pounds frequently and 20 pounds occasionally; sit for 6 hours in an 8-hour workday; stand and/or 28 7 1 walk for 6 hours in an 8-hour workday; climb, stoop, kneel, and crouch occasionally; and must 2 avoid scaffolds and ladders. [Id.] 3 All four examining and non-examining physicians who rendered opinions concerning 4 plaintiff s limitations opined that plaintiff can perform light work. Plaintiff has not identified, and the 5 Court is not aware of, any opinion in the record from any other physician -- treating or otherwise -- 6 that maintains that plaintiff is unable to perform light work. Statements from physicians concerning 7 the nature, severity, and effects of the symptoms of which a claimant complains are among the 8 factors to be considered in weighing a claimant s credibility. See Thomas, 278 F.3d at 958-59; 9 Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997); see also 20 C.F.R. §§ 10 404.1529(c)(1), 416.929(c)(1). Thus, it was proper for the ALJ to consider the opinion evidence 11 of the physicians in the record. The opinions of the examining and nonexamining physicians that 12 plaintiff retains the RFC to perform light work constituted a clear and convincing reason to discount 13 plaintiff s testimony concerning the severity of his symptoms. 14 This reason by the ALJ to discredit plaintiff s subjective symptom testimony is supported 15 by the record, and must be upheld. See Green, 803 F.2d at 532. Remand is not warranted on 16 this issue. 17 18 B. STEP FOUR AND STEP FIVE DETERMINATIONS 19 Plaintiff also argues that the ALJ erred in concluding that plaintiff can perform his past 20 relevant work as a fast food restaurant worker because: (1) plaintiff consistently described [his 21 fast food restaurant] work in the medium exertional level [JS at 5 (internal citations omitted)]; (2) 22 the ALJ improperly relied on an unsigned Medical/Vocational Decision Guide in the record [id.]; 23 (3) the ALJ incorrectly rel[ied] 100% on the opinion of a state agency consultant physician [JS 24 at 6]; and (4) the ALJ failed to consider plaintiff s statements about his limitations, including fatigue 25 and side effects from medications. [JS at 6-7.] In addition, plaintiff contends that the ALJ, in 26 making his step five determination, erred by failing to call a vocational expert to testify as to 27 whether plaintiff s limitations would substantially erode the job base such that no occupations 28 would exist given the totality of [] Plaintiff s limitations. [JS at 7-8.] 8 1 At step four, the ALJ must determine whether plaintiff s RFC allows him to return to his past 2 relevant work. Lester, 81 F.3d at 828 n.5; 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). 3 Plaintiff has the burden of establishing that he cannot return to his former type of work and not 4 just to his former job. Villa v. Heckler, 797 F.2d 794, 798 (9th Cir.1986) (emphasis in original). 5 However, the ALJ must make findings of fact regarding plaintiff s RFC, the physical and mental 6 demands of plaintiff s past work, and whether plaintiff can return to his past relevant work either 7 as actually performed or as generally performed in the national economy. Pinto v. Massanari, 8 249 F.3d 840, 844-45 (9th Cir. 2001); Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002). A 9 claimant is typically the primary source for determining how a job was actually performed. Social 10 Security Ruling6 82-62. But when determining how a job is generally performed, the ALJ can rely 11 on the descriptions given by the Dictionary of Occupational Titles ( DOT ) or a vocational expert. 12 See SSR 82-62; Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995). The DOT raises a 13 presumption as to job classification requirements. See Johnson, 60 F.3d at 1435; see also Pinto, 14 249 F.3d at 845-46 ( the best source for how a job is generally performed is usually the [DOT] ) 15 (internal citations omitted). If a claimant proves at step four that his RFC does not allow him to 16 perform his past relevant work, the burden shifts to the ALJ at step five to establish that plaintiff is 17 not disabled because he can perform other substantial gainful work that exists in significant 18 numbers in the national economy. 20 C.F.R. §§ 404.1520, 404.1560, 416.920, 416.960. 19 In a Work History Report dated September 25, 2009, plaintiff stated that he worked as a fast 20 food attendant from 1980 to 1991, and as a fast food porter from 2000 to 2008. [AR at 144-50.] 21 As an attendant, he prepared fast food and attended to the customer, and as a porter, he picked 22 up trash, stocked products, and clean[ed] food areas. [AR at 144-45.] He stated that in both jobs, 23 he spent the following number of hours out of each workday performing the following activities: 8 24 hours walking and/or standing; no hours sitting; 1 hour climbing; 2 hours stooping; 1 hour kneeling; 25 26 27 28 6 Social Security Rulings ( SSR ) do not have the force of law. Nevertheless, they constitute Social Security Administration interpretations of the statute it administers and of its own regulations, and are given deference unless they are plainly erroneous or inconsistent with the Act or regulations. Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989). 9 1 2 hours crouching; 1 hour handling; 3 hours reaching; and 5 hours writing, typing, or handling small 2 objects. [AR at 145-46.] The only difference plaintiff noted in the postural demands of the two jobs 3 was that as an attendant, he did not spend any time crawling during each workday, but as a porter, 4 he spent 2 hours doing so. [Id.] He further stated that both jobs required him to lift things for one- 5 third of his workday, as well as lift food products weighing over 45 pounds and carry them between 6 10 and 15 feet. [Id.] 7 In his decision, the ALJ found at step four that plaintiff is capable of performing past relevant 8 work as a fast food restaurant worker. [AR at 18.] The ALJ stated that [i]n comparing [plaintiff s] 9 [RFC] with the physical and mental demands of this work, ... [plaintiff] is capable to perform it as 10 generally performed as noted by the State agency vocational specialist at Exhibit 3E. [Id.] Exhibit 11 3E in the record is an unsigned Medical/Vocational Decision Guide that classifies plaintiff s past 12 relevant work of fast food as light work and opines that plaintiff can perform his past relevant work 13 as generally performed.7 [AR at 132-34.] However, neither the ALJ nor the vocational specialist 14 who completed the Decision Guide specified whether -- in determining that plaintiff can perform his 15 past relevant work as generally performed -- he or she was referring to plaintiff s work as a fast food 16 attendant, a fast food porter, or both.8 [See AR at 18, 132-34.] 17 As an initial matter, to the extent plaintiff argues that the ALJ erred by failing to consider his 18 statements about his symptoms and his side effects from medications in determining whether he 19 can perform his past relevant work, plaintiff s argument fails because the ALJ s discounting of 20 plaintiff s credibility is supported by substantial evidence, discussed supra. In addition, plaintiff cites 21 no authority in support of his contention that the ALJ has committed reversible error by relying 22 100% on the opinion of a state agency physician. [JS at 6.] As discussed above, the ALJ 23 considered all of the physician opinions in the record in making his RFC determination, and it was 24 25 26 7 The vocational specialist also opined that plaintiff can perform his past relevant work as actually performed. [AR at 132.] 27 8 28 In addition, neither the ALJ nor the vocational specialist cited any job number in the DOT corresponding to plaintiff s past relevant work. [See AR at 18, 132-34.] 10 1 proper for him to consider the physicians assessments of the nature, severity, and effects of the 2 symptoms of which plaintiff complains. See Thomas, 278 F.3d at 958-59; Light, 119 F.3d at 792. 3 Next, as to plaintiff s assertion that the ALJ erred by relying on the unsigned 4 Medical/Vocational Decision Guide, and insofar as plaintiff contends that the ALJ erred by failing 5 to classify his past relevant work as medium work, 9 the Court finds that even if plaintiff s 6 contentions are correct,10 such errors are harmless because the ALJ s alternative finding at step 7 five -- that plaintiff can perform other jobs that exist in significant numbers in the national economy 8 -- is supported by substantial evidence. See Robbins v. Comm r Soc. Sec. Admin., 648 F.3d 721, 9 728 (9th Cir. 2011) (internal citation omitted) (an error is harmless where it is inconsequential to 10 the ultimate nondisability determination ); see also McLeod v. Astrue, 640 F.3d 881, 887 (9th Cir. 11 2011) (citing Shinseki v. Sanders, 556 U.S. 396, 409, 129 S.Ct. 1696, 173 L.Ed.2d 532 (2009)) 12 ( the burden is on the party attacking the agency s determination to show that prejudice resulted 13 from the error ). 14 Plaintiff contends that, at step five, the ALJ erred in failing to obtain vocational expert 15 testimony on the issue of whether plaintiff s limitations would substantially erode the job base such 16 that no occupations would exist given the totality of [] Plaintiff s limitations. [JS at 7-8.] Defendant 17 counters that the ALJ was not required to call a vocational expert because he properly relied on 18 the Medical Vocational Guidelines at 20 C.F.R., Part 404, Subpart P, Appendix 2 as a framework 19 to consider Plaintiff s additional non-exertional limitations. [JS at 15.] 20 At step five, there are two ways the ALJ can show that there are significant numbers of jobs 21 the plaintiff can still perform: by the taking of vocational expert testimony or by reliance upon the 22 Medical-Vocational Guidelines. Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999). The 23 9 24 25 26 27 28 20 C.F.R. §§ 404.1567(c), 416.967(c) define medium work as work that involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. 10 The Court notes that the Medical/Vocational Decision Guide defines plaintiff s past job as fast food without distinguishing between the jobs of fast food attendant and fast food porter, and without citing any DOT description on which the preparer of the form relied. [AR at 132-34.] As such, the conclusion in the form that plaintiff s past work is properly classified as light work is unsubstantiated. Nevertheless, as discussed infra, these errors are harmless. 11 1 Medical-Vocational Guidelines (i.e., the Grids ) present, in table form, a short-hand method for 2 determining the availability and numbers of suitable jobs for a claimant. Tackett, 180 F.3d at 1101. 3 The [G]rids categorize jobs by their physical-exertional requirements and consist of three tables, 4 one for sedentary work, one for light work, and one for medium work. Id. Each Grid presents 5 various combinations of age, education, and work experience, which are relevant to a claimant s 6 ability to find work. Id. For each combination of these factors, the Grids direct a finding of either 7 disabled or not disabled based on the number of jobs in the national economy in that category 8 of physical-exertional requirements. Id.; see also 20 C.F.R., Pt. 404, Subpt. P, App. 2 § 200.00(a). 9 However, the Grids may be used to direct a finding of disability or non-disability only where 10 they completely and accurately represent a claimant s limitations. Tackett, 180 F.3d at 1101. 11 Because the Grids are based solely on strength or exertional factors (Holohan v. Massanari, 246 12 F.3d 1195, 1208 (9th Cir. 2001)), they may not be fully applicable where a claimant has 13 nonexertional limitations. 20 C.F.R., Pt. 404, Subpt. P, App. 2 § 200.00(e). The Commissioner 14 has defined exertional activity as primarily involving the strength requirements of sitting, standing, 15 walking, lifting, carrying, pushing, and pulling. Cooper, 880 F.2d at 1156 (citing SSR 83-10). A 16 nonexertional activity, by contrast, is an activity other than the primary strength activities, and 17 includes climbing, balancing, stooping, kneeling, crouching, and crawling. SSR 83-10. Despite the 18 fact that the Grids may not be fully applicable where nonexertional limitations exist, 19 20 21 22 where an individual has an impairment or combination of impairments resulting in both strength limitations and nonexertional limitations, the [Grids] are considered in determining first whether a finding of disabled may be possible based on the strength limitations alone and, if not, the [Grid] reflecting the individual s maximum residual strength capabilities, age, education, and work experience provide a framework for consideration of how much the individual s work capability is further diminished [as a result of his] nonexertional limitations. 23 24 20 C.F.R., Pt. 404, Subpt. P, App. 2 § 200.00(e)(2). 25 SSR 83-14 clarifies how [the Grids] provide a framework for decisions concerning [such 26 individuals], stating that [a] particular ... nonexertional limitation may have very little effect on the 27 range of work remaining that an individual can perform, in which case the individual would come[] 28 very close to meeting a table rule which directs a conclusion of Not disabled. SSR 83-14. On 12 1 the other hand, a[] nonexertional limitation may substantially reduce a range of work to the extent 2 that an individual is very close to meeting a table rule which directs a conclusion of Disabled. Id. 3 Examples of nonexertional limitations or restrictions which have very little or no effect on the 4 unskilled light occupational base include an inability to ascend or descend scaffolding, poles, and 5 ropes[,] [and an] inability to crawl on hands and knees. Id. 6 In determining how much a nonexertional limitation affects the range of work remaining that 7 an individual can perform, SSR 83-14 states that publications such as the DOT will be sufficient 8 for relatively simple issues. Id. (citing 20 C.F.R. §§ 404.1566, 416.966). Where the adjudicator 9 does not have a clear understanding of the effects of additional limitations on the job base, 10 however, the services of a [vocational specialist] will be necessary. Id. Where it is clear that the 11 additional limitation or restriction has very little effect on the exertional occupational base, the 12 conclusion directed by the appropriate rule in [the Grids] would not be affected. Id. 13 Here, the ALJ noted in his decision that [w]hen the claimant ... has nonexertional limitations, 14 the medical-vocational rules are used as a framework for decisionmaking, citing SSR 83-12 and 15 SSR 83-14. [AR at 18.] The ALJ then stated that considering plaintiff s age (a younger individual 16 as of his alleged disability onset date), education (high school graduate able to communicate in 17 English), work experience (in unskilled jobs), and RFC (for light work), Medical-Vocational 18 Guideline 202.20 would mandate a finding of not disabled if plaintiff retained the RFC to perform 19 the full range of light work. [AR at 18-19.] Because the ALJ determined that plaintiff s RFC 20 includes additional nonexertional limitations, however, the ALJ considered the extent to which those 21 limitations would erode the occupational base of unskilled light jobs. [AR at 19.] The ALJ found 22 that plaintiff s nonexertional limitations have little or no effect on the occupational base of unskilled 23 light work, and that plaintiff could therefore perform unskilled light work such as collator operator, 24 housekeeping cleaner, and photocopy-machine operator as described in [DOT Nos. 208.685-010, 25 323.687-014, and 207.685-014, respectively]. [AR at 19 (citing AR at 134).] Thus, the ALJ 26 concluded that a finding of not disabled was appropriate under the framework of [Medical- 27 Vocational Guideline 202.20]. [Id.] 28 13 1 The ALJ s consultation of the DOT and use of Medical-Vocational Guideline 202.20 as a 2 framework for his decision at step five is supported by substantial evidence. The DOT classifies 3 the jobs of collator operator, housekeeping cleaner, and photocopy-machine operator as light 4 work with no or only occasional balancing, climbing, stooping, kneeling, crouching, and crawling; 5 no climbing on ladders, ropes, or scaffolds; and no exposure to extreme cold or vibration. See 6 DOT No. 208.685-010; DOT No. 323.687-014; DOT No. 207.685-014. These requirements are 7 consistent with the ALJ s RFC determination for plaintiff. Moreover, as to the remaining restriction 8 in plaintiff s RFC -- that he avoid frequent or prolonged exposure to hepatotoxins -- plaintiff has not 9 identified how such a restriction would render him unable to perform any of the unskilled light jobs 10 the ALJ identified. [See AR at 4-7.] Given that there is no evidence before the Court that the 11 identified unskilled light jobs have any requirements that conflict with plaintiff s nonexertional 12 limitations, substantial evidence supports the ALJ s determination that plaintiff s nonexertional 13 limitations have little or no effect on the occupational base of jobs such as those of collator 14 operator, housekeeping cleaner, and photocopy-machine operator. Under SSR 83-14, which the 15 ALJ cited in his decision, it therefore was not necessary for the ALJ to rely on the services of a 16 vocational expert to make his step five determination. Remand is not warranted on this issue. 17 18 VI. 19 CONCLUSION 20 21 22 23 24 25 IT IS HEREBY ORDERED that: 1. plaintiff s request for reversal, or in the alternative, remand, is denied; and 2. the decision of the Commissioner is affirmed. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. 26 27 DATED: December 20, 2012 PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE 28 14

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