(SS) Obeso v. Colvin, No. 1:2015cv00151 - Document 20 (E.D. Cal. 2016)
Court Description: ORDER GRANTING Plaintiff's Appeal From the Administrative Decision of the Commissioner of Social Security signed by Magistrate Judge Sheila K. Oberto on 4/19/2016. CASE CLOSED. (Jessen, A)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 FRANCISCO FIERRO OBESO, 11 Case No. 1:15-cv-00151-SKO ORDER ON PLAINTIFF’S SOCIAL SECURITY APPEAL Plaintiff, 12 v. CAROLYN W. COLVIN, 13 Acting Commissioner of Social Security, 14 Defendant. ____________________________________ 15 16 I. 17 INTRODUCTION Plaintiff, Francisco Fierro Obeso (“Plaintiff”), seeks judicial review of a final decision of 18 19 the Commissioner of Social Security (the “Commissioner”) denying his application for Disability 20 Insurance Benefits (“DIB”) pursuant to Title II of the Social Security Act. 42 U.S.C. § 1381-83. 21 The matter is currently before the Court on the parties’ briefs, which were submitted, without oral 1 22 argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge. II. 23 FACTUAL BACKGROUND Plaintiff was born on June 30, 1952, and alleges disability beginning on June 14, 2009. 24 25 (Administrative Record (“AR”) 25-36; 305-06; 310; 351.) Plaintiff claims he is disabled due to 26 pain in his upper and lower back. (See AR 256.) Plaintiff cannot speak, read, or understand 27 English. (AR 80; 354-55.) 28 1 The parties consented to the jurisdiction of a U.S. Magistrate Judge. (Docs. 7; 10.) 1 A. Relevant Medical Evidence 2 On June 26, 2009, x-rays of Plaintiff’s lumbar spine revealed asymmetric loss of disk 3 height at L3-L4 and L4-L5, likely contributing to mild scoliosis, marginal osseous hypertrophic 4 spurring consistent with osteoarthritis, and loss of disc height at L5-S1 and L4-L5, suggesting 5 chronic disc degeneration. (AR 414.) On July 10, 2009, county health clinic physician Arnold 6 Welden, M.D., prescribed Naprosyn and Vicodin to alleviate Plaintiff’s back pain and noted 7 Plaintiff’s pain was “aggravated by bending, turning, and lifting.” (AR 415.) 8 On November 7, 2009, orthopedic surgeon Semon Bader, M.D., examined Plaintiff at the 9 request of the state agency. (AR 423-28.) Dr. Bader observed Tinel’s signs in Plaintiff’s bilateral 10 wrists and decreased sensation in the bilateral median nerve distribution, and limited Plaintiff to 11 non-strenuous, non-repetitive manipulative activities to accommodate his bilateral carpal tunnel 12 syndrome. (AR 425-27). Dr. Bader diagnosed Plaintiff with discogenic low back pain, and 13 limited Plaintiff to lifting and carrying no more than 50 pounds frequently and 25 pounds 14 occasionally, walking and standing no more than six hours in an eight-hour workday, and 15 performing no more than occasional postural movements, i.e., climbing, balancing, kneeling, 16 crawling, bending, crouching and stooping. (AR 425.) 17 On December 23, 2009, State agency physician I. Ocrant, M.D., reviewed Plaintiff’s 18 medical records and adopted Dr. Bader’s assessment in part, specifically rejecting Dr. Bader’s 19 opined manipulative limitations. (AR 430-34.) Dr. Ocrant further opined that the occasional 20 postural limitations assessed by Dr. Bader would limit Plaintiff to performing light work. 21 (AR 422.) 22 On August 7, 2009, Dr. Welden prescribed Elavil as a sleep aide. (AR 448.) On August 23 17, 2009, Dr. Welden examined Plaintiff and noted diffuse paralumbar muscle tenderness with 24 palpation 2-3 inches from midline. (AR 446.) Dr. Welden opined that Plaintiff had chronic back 25 pain, especially in his left paralumbar area. (AR 446.) Dr. Welden continued to observe mild 26 paralumbar muscle tenderness in September, October, and December 2009 and January and 27 February 2010. (See AR 436, 438, 440, 442, 444.) In January 2010, Dr. Welden observed that the 28 tenderness in Plaintiff’s paralumbar muscle had expanded to 3 inches from midline and in 2 1 February 2010, Dr. Welden noted the tenderness had expanded to 4 inches from midline. 2 (AR 436, 438.) 3 State agency physician C.E. Lopez, M.D., reviewed Plaintiff’s medical records and 4 affirmed Dr. Ocrant’s assessment on June 21, 2010. (AR 450-51.) 5 On August 31, 2010, Plaintiff reported to Dr. Welden that his back pain had gradually 6 improved and he thought he could go back to work. (AR 494.) Dr. Welden opined Plaintiff’s 7 lower back pain had resolved and he could go back to work as of August 14, 2010. (AR 494.) On 8 December 28, 2010, Plaintiff reported left shoulder pain of about 20-days duration. (AR 491.) 9 Rocio Medina, M.D., observed tenderness to palpation in the lateral aspect of the left shoulder 10 right below the acromion; a slightly positive drop test; and normal range of movement in the left 11 arm and left shoulder, but noted that Plaintiff grimaced with pain with movement. (AR 491.) Dr. 12 Medina diagnosed Plaintiff with left subacromial bursitis and, because Plaintiff had no insurance, 13 prescribed a less expensive anti-inflammatory medication. (AR 491.) In January 2011, Dr. 14 Medina administered a corticosteroid injection to address Plaintiff’s ongoing left shoulder pain 15 and restarted Plaintiff on the more expensive Norvasc because it had been more effective. 16 (AR 488.) 17 On September 6, 2011, Dr. Welden opined Plaintiff was unable to perform full-time work 18 at any exertional level. (AR 453.) Dr. Welden, however, assessed Plaintiff as being able to sit for 19 four hours in an eight-hour day; stand/walk for four hours in an eight-hour day; lift 15 pounds 20 frequently and 20 pounds occasionally; and reach, handle, feel, push/pull, and grasp for one hour 21 before having to rest his hands. (AR 454.) On October 12, 2011, Plaintiff self-rated pain in his 22 paralumbar muscle as a 4/10 with medication. (AR 484.) 23 On December 12, 2011, Plaintiff reported he had recently worked for 6 days but had been 24 unable to fulfill all required job duties, including jumping on and off big trucks, due to worsening 25 back and leg pain. (AR 482.) Dr. Welden diagnosed Plaintiff with back pain with acute 26 exacerbation, put Plaintiff on disability, and resumed his pain medications. (AR 482.) On 27 December 23, 2011, Dr. Welden observed “very limited” range of motion in Plaintiff’s back and 28 noted Plaintiff could not bend “very much,” and extended Plaintiff’s disability. (AR 480.) 3 1 In January 26, 2012, Plaintiff told Dr. Welden he was going to go see his doctor in Sinaloa, 2 Mexico. (AR 478.) On February 28, 2012, Plaintiff reported his pain as a 0/10. (AR 477.) On 3 March 7, 2012, however, Dr. Welden noted Plaintiff was unable to lift or bend down due to 4 excruciating pain. (AR 475.) On June 5, 2012, Dr. Welden’s noted tenderness in Plaintiff’s 5 lumbar spine and moderate pain with motion on examination. (AR 471.) 6 On July 11, 2012, Plaintiff saw Jose Luis Carraso, M.D., an orthopedist in Mexico. 7 (AR 458-61.) The report of an imaging study ordered by Dr. Carraso, as well as his treatment 8 notes, are in Spanish and have not been translated. (See AR 458-61.) 9 From August to November 2012, Dr. Welden continued to treat Plaintiff and renew his 10 prescriptions. (AR 462-69.) On March 22, 2013, Dr. Welden opined Plaintiff could only perform 11 sedentary work. (AR 510.) In an eight-hour workday, Dr. Welden opined Plaintiff could only sit 12 for one hour at a time for a total of three hours and stand/walk for one hour at a time for a total of 13 three hours. (AR 510.) Dr. Welden further opined Plaintiff must lie down or elevate his legs 14 twice in an eight-hour workday and had been disabled to this degree for one year. (AR 510.) 15 B. Testimony 16 1. 17 In an adult disability report completed with the help of his daughter on July 21, 2009, Plaintiff’s Work History and Self-Assessment 18 Plaintiff reported that he is unable to speak or understand English and has been disabled by upper 19 and lower back pain since June 14, 2009. (AR 354-55.) Plaintiff reported past work experience as 20 an agricultural field laborer from 1988 through June of 2009. (AR 356.) The job included 21 “picking, trimming, prunning (sic), irrigation, tr[uc]k driver, tractor driver, dairy cleaning, feeding 22 cows, [and] maintena[n]ce in ranch” and required him to walk and stand for eight hours and sit for 23 three hours, stoop, kneel, and crouch for three hours, and handle large objects and reach for eight 24 hours in each eight-hour day. (AR 356.) He frequently lifted approximately 25 pounds. 25 (AR 357.) 26 On July 29, 2009, Plaintiff completed a pain questionnaire and reported constant, severe 27 low back, posterior knee, and right shoulder pain accompanied by loss of strength since March of 28 2004. (AR 363-65.) Plaintiff reported that narcotic pain medication does not alleviate his pain 4 1 symptoms. (AR 363.) He must stop any activity after 10-15 minutes due to pain, and can only 2 stand or sit 10 minutes at a time. (AR 365.) 3 In his disability appeal form on March 8, 2010, Plaintiff reported he spends most of his day 4 lying down and has trouble dressing himself, showering, driving for long periods of time, staying 5 still for long periods of time, and doing housework. (AR 381.) Plaintiff completed a pain 6 questionnaire on April 21, 2010, that repeated his report in the July 2009 questionnaire. (AR 3847 86.) On July 21, 2010, Plaintiff completed a disability appeal form and reported that his pain was 8 “getting greater and greater” and that he must change positions often because the pain “spreading 9 through all [his] body” is so great. (AR 390.) Plaintiff told the agency interviewer that . . . I am still in severe pain and it spreads from my back to my neck and also to my legs causing them to get weak with the medications it forces me to lay down in bed because I cannot stay still in the sam[e] position for longer than 10 minutes it would be impossible for me to find a job where they would allow me to rest every 10 minutes or even take a nap caused by all the medications I am taking. Every day I depend more and more on other people to help me with my daily tasks, my self[-]esteem is going down because of this pain and having to depend on others. 10 11 12 13 14 15 (AR 393.) 2. 16 Hearing Testimony a. 17 Plaintiff’s Testimony The April 24, 2013, hearing was done by video with Plaintiff represented by counsel and 18 2 19 accompanied by an interpreter and Vocational Expert (“VE”) in Fresno, CA, and with ALJ 20 DiMaggio Wallis presiding in St. Louis, MO. (AR 45.) Plaintiff testified he came to the United 21 States in 1988 from Mexico and never attended school. (AR 49.) He is unable to read or write in 22 English “at all” but can read or write “a little bit” in Spanish. (AR 49.) Plaintiff last worked for about 45 days during the summer of 2012 as a tractor driver and 23 24 for about four months total in the fall of 2011 as a truck driver. (AR 49-50.) Plaintiff stopped 25 working due to his pain and difficulty using his leg to push the pedals on the truck he drove for 26 work. (AR 54-55.) Plaintiff was forced to take repeated rest periods for his leg and is unable to 27 last a full workday using his leg to push pedals. (AR 55.) Plaintiff repeatedly moved around in 28 2 At both of his hearings, Plaintiff testified with the assistance of an interpreter. (AR 45; 72.) 5 1 his seat at the hearing to get relief from his discomfort and estimated that after about 15 minutes 2 he would have to get up due to pain. (AR 55-56.) Plaintiff testified he has a problem with his left 3 shoulder that causes him to lose strength, and when asked to point to the part of his shoulder that 4 bothers him, he pointed to his right shoulder and explained that his right shoulder bothers him the 5 most. (AR 57.) He has problems using his bilateral hands but has not spoken with a doctor about 6 it. (AR 57.) Plaintiff stated that he is unable to work full-time because he is in “a lot of pain” and his 7 8 right leg does not support him. (AR 51.) He has used a cane to ambulate in public for the past 9 two years, though no physician prescribed the use of a cane. (AR 51.) Pain medication and rest 10 are the only things that alleviate his pain. (AR 52.) Plaintiff is able to lift eight or ten pounds at a 11 time, stand and sit about 15 minutes at one time, and lies down five times each day for about an 12 hour at a time. (AR 52.) He cannot bend over but can squat down, and can go up stairs or steps 13 very slowly. (AR 52.) He is unable to shower, bath, or get dressed by himself because he needs 14 help washing the lower part of his legs. (AR 53.) He does not cook, but is able to use the 15 microwave or make a sandwich on occasion. (AR 53.) He does not do any chores and goes 16 shopping with his wife, but is able to feed his pets, water his plants, talk on the phone, and watch 17 television. (AR 53.) 18 b. Plaintiff’s Attorney’s Statement At the hearing, Plaintiff’s attorney contended that: Plaintiff is limited to sedentary or, 19 20 alternatively, light activity due to his low back impairment and would “grid out” under the Grids 21 framework3 for either type of work (AR 51); the only job that would accommodate a limitation to 22 “no more than” six hours of standing or walking and “that it kind[ ] of suggests the [G]rids at 23 medium where you have especially illiteracy involved in the mix” (AR 66-67); and Plaintiff could 24 perform no more than light work, cannot do any past relevant work, and would therefore “grid 25 out” at light work (AR 67). 26 3 The Medical-Vocational Guidelines, or “Grids,” are applied at the fifth step of the analysis under 20 C.F.R. 27 § 404.1520, and present, in table form, a short-hand method for determining the availability and numbers of suitable jobs for a claimant. Lounsburry v. Barnhart, 468 F.3d 1111, 1114-15 (9th Cir. 2006); see 20 C.F.R. § 404, subpt. P, 28 app. 2. 6 1 c. 2 Vocation Expert Testimony The VE testified that Plaintiff has past relevant work as a farm machinery operator, 3 Dictionary of Occupational Titles (“DOT”) 409.683-010, heavy work with an SVP4 of 3, and as a 4 fruit farm worker I, DOT 403.683-010, medium work with an SVP of 5. (AR 60.) The ALJ asked 5 the VE to consider a hypothetical individual of the same age, educational background, and work 6 history as Plaintiff, with the following functional limitations: . . . can lift and carry, and can push and pull up to 50 pounds occasionally and up to 25 pounds frequently. This person can stand or walk for six hours in an eighthour workday, and sit for six hours in an eight-hour workday. This person can occasionally climb ramps and stairs, but never ladders, ropes, or scaffolds. 7 8 9 . . . [and] can stand or walk for six hours in an eight-hour workday, but has no limit sitting. He can occasionally balance, stoop, kneel, crouch, and crawl. 10 11 (AR 60.) The VE testified that such an individual could not perform any of Plaintiff’s past 12 relevant work, but could perform other work including representative occupations of hand packer, 13 DOT 920.587-018, medium work with an SVP of 2, electronics worker, DOT 726.687-010, light 14 work with an SVP of 2, and laundry worker, DOT 361.587-010, light work with an SVP of 2. 15 (AR 60.) The VE testified that the occasional postural limitations would “rule out the great 16 majority of medium jobs.” (AR 61.) 17 The ALJ then asked the VE to consider a hypothetical individual who 18 . . . can lift and carry and push and pull up to 50 pounds occasionally and up to 25 pounds frequently; can stand or walk for six hours in an eight-hour workday, and [has] no limits in the ability to sit. This person can occasionally climb ramps and stairs, but never ladders, ropes, or scaffolds; can frequently balance, stoop, kneel, crouch, and crawl. Can frequently reach overhead with the left upper extremity; can frequently push, pull, and operate foot controls with both lower extremities. 19 20 21 22 (AR 60.) The VE testified that such an individual could perform Plaintiff’s past relevant work as a 23 farm worker, as well as other work including work as a hand packer, DOT 920.587-018, industrial 24 cleaner, DOT 381.687-018, and cleaner II, DOT 919.687-1014, both medium work with an SVP of 25 2. (AR 62.) 26 // 27 28 4 Specific Vocational Preparation (“SVP”), as defined in DOT, App. C, is the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation. 7 1 The ALJ then modified the hypothetical to add that the person would have to change 2 positions every hour and would be off task for one minute each time he did so, would need to use a 3 cane in one hand when walking, and could only occasionally stoop, kneel, and crouch. (AR 62.) 4 The VE testified that such a person could not work. (AR 62.) The ALJ also asked whether a 5 person off task an hour each day would be able to work, and the VE testified that such a person 6 would not be employable. (AR 63.) 7 The ALJ then asked whether Plaintiff had any skills readily transferable to a full range of 8 sedentary work. (AR 63.) The VE testified that Plaintiff had only “agricultural-based skills” and 9 there would be no sedentary- or light-type positions “within that realm of employment.” (AR 63.) 10 Plaintiff’s attorney asked the VE to consider the same individual as in the first hypothetical, 11 with the additional restriction that the individual would be able to walk and stand “no more than” 12 six hours out of an eight-hour workday. (AR 64-65.) The VE testified that the positions identified 13 “all require standing throughout the workday” and therefore would all be eliminated. (AR 65.) 14 Plaintiff’s attorney then asked the VE whether he had seen the hand packer job in person, and 15 whether the job would require more than occasional postural activities. (AR 65-66.) The VE 16 testified that there would not be any erosion of the number of jobs available based on more than 17 occasional postural activities. (AR 66.) Plaintiff’s attorney then asked whether there would be any 18 overhead lifting or reaching in the hand packer job, and the VE testified that while there would “be 19 very limited” overhead reaching, there would be “continuous” forward reaching. (AR 66.) 20 C. Administrative Proceedings 21 On July 21, 2011, ALJ Michael Haubner issued a written decision and determined Plaintiff 22 was not disabled for the period from June 14, 2009, through the date of the decision. (AR 11623 32.) Plaintiff appealed ALJ Haubner’s decision to the Appeals Council under the new and 24 material evidence provision, 20 C.F.R. § 404.970 (AR 209-22), and the Appeals Council vacated 25 ALJ Haubner’s decision and remanded the case for reconsideration on December 6, 2012 26 (AR 134-35 ). 27 On June 19, 2013, ALJ Sandra DiMaggio Wallis issued a written decision and found that 28 Plaintiff had a severe impairment of “disorders of the back.” (AR 28.) The ALJ determined that 8 1 this impairment did not meet or equal a listed impairment. (AR 28.) The ALJ found Plaintiff 2 retained the residual functional capacity (“RFC”) 3 4 5 . . . to lift/carry and push/pull up to fifty pounds occasionally and up to twentyfive pounds frequently, can stand/walk for six hours in an eight-hour workday, and has no limits on his ability to sit during the workday. Further, [Plaintiff] can never climb ladders, ropes, or scaffolds; can occasionally climb ramps and stairs; and can occasionally balance, stoop, kneel, crouch, and crawl. 6 (AR 28-29.) 7 Given this RFC, the ALJ found that Plaintiff was unable to perform his past relevant work. 8 (AR 35.) The ALJ considered Plaintiff’s age and determined that he was 56 years old, defined as 9 an “individual of advanced age,” on the alleged disability onset date and that he had turned 60 10 years old on June 30, 2012, and therefore become a person “closely approaching retirement age” 11 prior to the rendering of the decision. (AR 35.) The ALJ then determined that Plaintiff was not 12 able to communicate in English and would be considered “in the same way” as an individual who 13 is illiterate in English. (AR 35.) After considering Plaintiff’s age, education, work experience, 14 and RFC, the ALJ determined there were jobs existing in significant numbers in the national 15 economy Plaintiff could perform, including representative occupations such as hand packer, DOT 16 920.687-018, assembler, DOT 806.684-010, farm worker, DOT 401.687-010, seed cutter, DOT 17 404.686-010, and worm farm laborer, DOT 413.687-014, all unskilled medium work. (AR 36.) 18 The ALJ therefore concluded that Plaintiff was not disabled under the Social Security Act. (AR 19 36.) 20 The Appeals Council denied Plaintiff’s request for review on November 21, 2014, making 21 the ALJ’s decision the Commissioner’s final determination for purposes of judicial review. 22 (AR 1-9.) 23 D. Plaintiff’s Complaint 24 On January 25, 2015, Plaintiff filed a complaint before this Court seeking review of the 25 ALJ’s decision. (Doc. 1.) Plaintiff contends that the ALJ erred in assessing Plaintiff’s residual 26 functional capacity to work and erred at step 5 of the sequential evaluation. (Doc. 14.) 27 // 28 // 9 1 2 III. SCOPE OF REVIEW The ALJ’s decision denying benefits “will be disturbed only if that decision is not 3 supported by substantial evidence or it is based upon legal error.” Tidwell v. Apfel, 161 F.3d 599, 4 601 (9th Cir. 1999). In reviewing the Commissioner’s decision, the Court may not substitute its 5 judgment for that of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). 6 Instead, the Court must determine whether the Commissioner applied the proper legal standards 7 and whether substantial evidence exists in the record to support the Commissioner's findings. See 8 Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). 9 “Substantial evidence is more than a mere scintilla but less than a preponderance.” Ryan v. 10 Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). “Substantial evidence” means “such 11 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 12 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. of N.Y. v. NLRB, 13 305 U.S. 197, 229 (1938)). The Court “must consider the entire record as a whole, weighing both 14 the evidence that supports and the evidence that detracts from the Commissioner's conclusion, and 15 may not affirm simply by isolating a specific quantum of supporting evidence.” Lingenfelter v. 16 Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citation and internal quotation marks omitted). 17 18 IV. APPLICABLE LAW An individual is considered disabled for purposes of disability benefits if he is unable to 19 engage in any substantial, gainful activity by reason of any medically determinable physical or 20 mental impairment that can be expected to result in death or that has lasted, or can be expected to 21 last, for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A), 22 1382c(a)(3) (A); see also Barnhart v. Thomas, 540 U.S. 20, 23 (2003). The impairment or 23 impairments must result from anatomical, physiological, or psychological abnormalities that are 24 demonstrable by medically accepted clinical and laboratory diagnostic techniques and must be of 25 such severity that the claimant is not only unable to do his previous work, but cannot, considering 26 his age, education, and work experience, engage in any other kind of substantial, gainful work that 27 exists in the national economy. 42 U.S.C. §§ 423(d)(2)-(3), 1382c(a)(3)(B), (D). 28 // 10 1 The regulations provide that the ALJ must undertake a specific five-step sequential 2 analysis in the process of evaluating a disability. In Step 1, the ALJ must determine whether the 3 claimant is currently engaged in substantial gainful activity. 4 416.920(b). 20 C.F.R. §§ 404.1520(b), If not, the ALJ must determine at Step 2 whether the claimant has a severe 5 impairment or a combination of impairments significantly limiting her from performing basic 6 work activities. Id. §§ 404.1520(c), 416.920(c). If so, the ALJ moves to Step 3 and determines 7 whether the claimant has a severe impairment or combination of impairments that meet or equal 8 the requirements of the Listing of Impairments (“Listing”), 20 § 404, Subpart P, App. 1, and is 9 therefore presumptively disabled. Id. §§ 404.1520(d), 416.920(d). If not, at Step 4 the ALJ must 10 determine whether the claimant has sufficient RFC despite the impairment or various limitations 11 to perform her past work. Id. §§ 404.1520(f), 416.920(f). If not, at Step 5, the burden shifts to the 12 Commissioner to show that the claimant can perform other work that exists in significant numbers 13 in the national economy. Id. §§ 404.1520(g), 416.920(g). If a claimant is found to be disabled or 14 not disabled at any step in the sequence, there is no need to consider subsequent steps. Tackett v. 15 Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999); 20 C.F.R. §§ 404.1520, 416.920. 16 17 V. DISCUSSION Plaintiff contends the ALJ erred at step five of the sequential evaluation and based his 18 residual functional capacity assessment on insubstantial evidence. (Docs. 14; 19.) 19 A. The ALJ’s Consideration of the Medical Evidence 20 Plaintiff contends the ALJ erred in rejecting the opinions of treating physician Dr. Welden 21 in full and examining physician Dr. Bader in part. (Docs. 14; 19.) The ALJ’s Consideration of Dr. Welden’s Medical Opinion 22 1. 23 Plaintiff contends the ALJ failed to articulate legally adequate reasons for rejecting treating 24 physician Dr. Welden’s opinion that Plaintiff was unable to perform full-time work. (Doc. 14, 25 pp. 12-15.) The Commissioner contends the ALJ properly discounted Dr. Welden’s opinion as 26 inconsistent, poorly explained, and contradictory to the weight of the evidence. (Doc. 18, p. 13.) 27 The medical opinions of three types of medical sources are recognized in Social Security 28 cases: “(1) those who treat the claimant (treating physicians); (2) those who examine but do not 11 1 treat the claimant (examining physicians); and (3) those who neither examine nor treat the 2 claimant (nonexamining physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). 3 Generally, an examining physician’s opinion is entitled to greater weight than a non-examining 4 physician’s opinion. Id. Where a treating or examining doctor’s medical opinion is contradicted 5 by another doctor, the Commissioner must provide “specific and legitimate” reasons for rejecting 6 that medical opinion, and those reasons must be supported by substantial evidence in the record. 7 Id. at 830-31; accord Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009). 8 The ALJ can meet this burden by setting forth a detailed and thorough summary of the facts and 9 conflicting clinical evidence, stating her interpretation thereof, and making findings. Tommasetti 10 v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Factors relevant to evaluating medical opinions 11 include the amount of relevant evidence that supports the opinion and the quality of the 12 explanation provided and the consistency of the medical opinion with the record as a whole. See 13 Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (citing 20 C.F.R. § 404.1527(d)(3)-(6)). 14 The ALJ considered Dr. Welden’s opinions as to Plaintiff’s ability to work and determined 15 “they lacked credibility for a number of reasons.” (AR 33.) 16 17 18 19 20 21 22 23 24 25 . . . Starting with the broader issues first, [Plaintiff]’s treatment record documented the presence of some back impairment and [Plaintiff] did allege some ongoing back pain. However, Dr. Welden’s own treatment notes did not document that [Plaintiff] had the types of limitations that Dr. Welden identified in his medical opinions. [H]e did intermittently note that he felt that [Plaintiff] had some work restrictions, but even these statements were inconsistent. In one instance, he stated in March of 2012 that [Plaintiff] could not lift o[r] bend down due to excruciating pain. Yet, during the same office visit where he said [Plaintiff] had excruciating pain, he diagnosed [Plaintiff] with mild pain. The month prior, he had also noted that [Plaintiff]’s pain was “0” on a 10-point scale. This type of inconsistency is present throughout Dr. Welden’s treatment records, wherein he repeatedly noted that [Plaintiff] had mild pack pain, at most mild findings on evaluation, consistently recommended only conservative treatment, and never documented any specific exertional or other limitations. Overall, Dr. Welden’s own treatment notes did not support almost any of his statements about [Plaintiff]’s functioning and strongly suggested that his opinion statements were not credible. 26 (AR 34.) Plaintiff contends that any “inconsistencies” between Dr. Welden’s opinions and his 27 treatment records “were caused by the fact that whenever Plaintiff tried to work, his pain 28 worsened.” (Doc. 14, p. 13 (stating that any inconsistencies in Dr. Welden’s opinion arose from 12 1 the “waxing and waning of Plaintiff’s pain”).) However, this conclusion is not clear from the 2 medical record; rather, the record reflects complaints of shoulder and back pain treated almost 3 exclusively by Ibuprofen (AR 29-30; 415-20; 457-509) and reports of disabling pain 4 accompanying observations of mild pain, mild tenderness, and mild decrease in range of motion 5 (see AR 415-99 (repeatedly noting mild diffuse tenderness to palpation, occasionally noting 6 decreased range of motion in unspecified areas of the body, and twice noting “decreased range of 7 motion” and “full range of motion” with pain throughout the movement of Plaintiff’s left 8 shoulder)). These relatively minimal observations are inconsistent with Dr. Welden’s ultimate 9 conclusion in March 2013 that Plaintiff is incapable of full-time work beyond sedentary work. 10 The ALJ also noted that Dr. Welden’s 2011 and 2013 opinions were neither internally 11 consistent, nor consistent with one another. (AR 34 (comparing AR 453 with 510).) A review of 12 Dr. Welden’s 2011 assessment reveals an obvious contradiction between Dr. Welden’s ultimate 13 opinion that Plaintiff is incapable of working and his opinion imposing extertional limitations 14 suggesting Plaintiff is capable of performing the requirements of at least sedentary to light work. 15 Dr. Wedlen also inconsistently opined that Plaintiff has no limitations due to hand impairments 16 (AR 453 (opining the section to be “n/a” to Plaintiff)) yet would be moderately to severely limited 17 in his ability to reach, handle, feel, push/pull, and grasp (AR 454) and conclusorily opined without 18 explanation or reference to any diagnostic findings or clinical observations that Plaintiff met the 19 requirements of Listings 1.02 and 1.04 based upon Plaintiff’s complaints of “back pain” (AR 45320 54). Dr. Welden’s 2013 assessment also “agree[d] with [Plaintiff]’s feeling of only [being] able to 21 do sedentary work” based on “examination[s]” but providing no objective findings or observations 22 on which he based his assessment, indicating that his conclusion was based instead upon 23 Plaintiff’s subjective complaints. (AR 510.) 24 Under the regulations, clinical findings include the results of physical or mental status 25 examinations, and diagnostic findings are statements of the disease or injury based on its “signs 26 and symptoms.” See 20 C.F.R. §§ 404.1513(b), 416.913(b). While a medical report should 27 include clinical findings and diagnoses, there is no requirement that clinical and diagnostic 28 “evidence” must be submitted with a residual functional capacity assessment, see id., particularly 13 1 if the record already contains such evidence. Giles v. Astrue, No. EDCV 08-1088-JC, 2009 WL 2 2984049, at *7 (C.D. Cal. Sept. 17, 2009.) Here, Dr. Welden did not refer to any clinical findings 3 or diagnostic evidence in support of his opinions of extreme limitations on Plaintiff’s ability to 4 work; there is nothing in the two-page 2011 or single-page 2013 assessment indicating that Dr. 5 Welden independently reached any formal diagnoses or based his opinion on any clinical, 6 objective findings. (See AR 453 (offering a diagnosis of “back pain” based on objective findings 7 of “back pain”); 510 (offering a diagnosis of “low back pain” based on objective findings of 8 “examination”).) 9 Further, Dr. Welden’s treatment records from June 2009 through November 2012 10 documented several instances of improvement to the point where Plaintiff could return to work 11 (see AR 494 (August 2010); mild complaints of pain (see AR 491 (December 2010, 12 recommending ibuprofen and range of motion exercises to address complaint of shoulder pain); 13 489 (January 2011, recommending medication management and performing left shoulder 14 injection); 463-69 (August to November 2012, prescribing ibuprofen repeatedly and Tramadol 15 once to address pain complaints)), or no complaints of pain at all (see AR 476 (February 2012, 16 self-reporting pain of 0/10).) 17 Contrary to Plaintiff’s contentions, Dr. Welden’s treatment records did not establish that 18 Plaintiff’s condition was progressively worsening to become disabling or that Plaintiff would be 19 precluded from performing any type of modified medium work because of his impairments. In 20 fact, the ALJ specifically explained that he was discounting Dr. Welden’s 2011 and 2013 21 assessments because they “were not consistent with each other” and that “[w]hile this might be 22 expected if [Plaintiff]’s impairments became worse over time, the limited objective treatment 23 record did not suggest that [Plaintiff’s] impairments became significantly more limiting in 2012 24 and 2013 relative to what they were in 2010 and 2011.” (AR 34.) The ALJ permissibly found that 25 Dr. Welden’s treatment notes failed to support the extreme limitations to which he had opined. 26 See Tommasetti, 533 F.3d at 1041 (“incongruity” between physician’s treating record and 27 responses to a questionnaire was proper basis on which to discount credibility where the 28 physician’s “ultimate conclusions” regarding the extent of plaintiff’s limitations “did not mesh 14 1 with her objective data or history”). 2 The ALJ also noted that Dr. Welden’s 2013 assessment appeared to state that Dr. Welden 3 had relied “at least somewhat on [Plaintiff]’s subjective assessment of limitations[.]” (AR 34; see 4 AR 510 (“As his personal nursing physical (sic) I I (sic) agree with [Plaintiff]’s feeling on only 5 [being] able to do sedentary work”).) While a physician can, with firsthand impressions and 6 clinical evidence, give credence to a claimant’s subjective claims, Ryan, 528 F.3d at 1199-1200, 7 Dr. Welden’s opinions are bereft of these necessary firsthand impressions and clinical evidence. 8 To the extent Dr. Welden’s opinion was based upon Plaintiff’s subjective complaints, the ALJ 9 permissibly rejected Dr. Welden’s opinion because Plaintiff’s testimony had already been properly 10 discounted as incredible. Tommasetti, 533 F.3d at 1041 (citing Morgan v. Comm’r Soc. Sec. 11 Admin., 169 F.3d 595, 602 (9th Cir. 1999)). To the extent Dr. Welden’s opinion was not based 12 upon Plaintiff’s subjective complaints, because the ALJ properly discredited Dr. Welden’s opinion 13 on other permissible bases, any error in discrediting Dr. Welden’s opinion on that basis is 14 harmless. See Carmickle v. Comm’r of Soc. Sec. Admin., 553 F.3d 1155, 1162 (9th Cir. 2008) (an 15 error is harmless where there “remains substantial evidence supporting the ALJ’s conclusions on 16 . . . credibility and the error does not negate the validity of the ALJ’s ultimate [credibility] 17 conclusion”) (internal citation and quotations omitted) (alteration in original). 18 Plaintiff does not dispute that his own credibility was properly discounted by the ALJ or 19 that this was a legitimate reason for discounting Dr. Welden’s opinion. (See Docs. 14, pp. 12-15; 20 19, pp. 5-6.) Plaintiff instead contends that “an opinion offered by a treating physician in a form 21 with little explanation must be considered in the context of the treatment record and the 22 physician’s experience with [the] claimant” and asks the Court to look beyond the “four corners of 23 the forms completed by Dr. Welden” to determine whether Dr. Welden’s opinion was indeed 24 supported by the record. (Doc. 19, pp. 5-6.) 25 Dr. Welden’s questionnaire assessments, however, are not supported by firsthand 26 impressions and clinical evidence in his treating notes or in the overall medical record. A review 27 of Dr. Welden’s treating notes and questionnaire responses reveal only diagnoses and opined 28 limitations imposed by those diagnoses – save a single slightly positive “drop can test” on the left 15 1 side in December 2010 observed by another physician at the county clinic (AR 491), there are no 2 specific diagnostic findings offered in support of Dr. Welden’s conclusory opinion in the 2011 3 questionnaire that Plaintiff is unable to work (see AR 435 (basing his opinion on the “objective 4 finding” of “back pain”)) or his conclusory opinion in the 2013 questionnaire that Plaintiff is 5 limited to only sedentary work (see AR 453 (basing his opinion on “examinations”)). (See AR 6 415-20; 435-49; 452-56; 510.) What clinical observations there are in the record were non-severe: 7 Plaintiff repeatedly demonstrated mild diffuse tenderness to palpation (see AR 415; 417; 419; 436; 8 438; 440; 442; 443; 444; 446; 447; 448; 463; 465; 466; 469; 471; 478; 480; 482;484; 486; 496; 9 499), “decreased range of motion” (see AR 419 (decreased range of motion); 463 ( “moderately 10 reduced” range of motion; 465 ( “mild pain” with motion); 466 (same); 469 (same); 473 (same); 11 475 (same); 471 ( “moderate pain” with motion); 480 (“very limited” range of motion”), and “full 12 range of motion” with pain throughout the movement of his left shoulder (see AR 488-89; 49113 493). (See also AR 414 (2009 imaging study revealing only mild degenerative changes).) These 14 relatively minimal observations do not support Dr. Welden’s conclusory opinion that Plaintiff is 15 incapable of full-time work beyond sedentary work. 16 The ALJ finally noted that 17 . . . there were no other medical opinions that came close to agreeing with [Dr. Welden’s] assessment. Instead, one of the State agency doctors and Dr. Bader agreed that [Plaintiff] retained the ability to perform exertionally medium work. While Dr. Bader’s assessment somewhat agrees with Dr. Welden’s 2011 assessment that [Plaintiff] might have some limitations related to carpal tunnel syndrome, he did not broadly opine that [Plaintiff] had extensive reaching, handling, fingering, and grasping problems. 18 19 20 21 22 (AR 34.) Plaintiff contends that “mere disagreement by a non-treating medical source is not a 23 specific, legitimate reason for rejecting a treating physician’s opinion” and asserts that the ALJ 24 erroneously relied on Dr. Bader’s assessment to undermine Dr. Welden’s credibility after 25 assigning only partial weight to Dr. Bader’s assessment. (Doc. 14, pp. 13-14.) 26 As an initial matter, though the ALJ discounted Dr. Bader’s opinion regarding Plaintiff’s 27 manipulative limitations as unsupported by the record, it is undisputed that the ALJ fully credited 28 Dr. Bader’s opinion that Plaintiff could perform medium work with some postural limitations. 16 1 (AR 32-33.) Further, every examining or reviewing medical source found Plaintiff capable of 2 performing a range of light to medium work. (See AR 34; 422 (Dr. Ocrant’s assessment of light 3 work to accommodate postural limitations); 423-28 (Dr. Bader’s assessment of medium work with 4 postural limitations); 450-51 (Dr. Lopez affirmed Dr. Ocrant’s assessment).) This is not an issue 5 of “mere disagreement by a non-treating source” as Plaintiff contends. No other medical source 6 opined that Plaintiff could not work or was incapable of performing the requirements of even light 7 work. (See generally AR.) 8 The ALJ properly relied on the lack of support in the medical opinion evidence as one of 9 several factors in discounting Dr. Welden’s opinion. Tonapetyan v. Halter, 242 F.3d 1144, 1149 10 (9th Cir. 2001) (holding that while “the contrary opinion of a non-examining medical expert does 11 not alone constitute a specific, legitimate reason for rejecting a treating or examining physician's 12 opinion, it may constitute substantial evidence when it is consistent with other independent 13 evidence in the record”) (citing Magallanes v. Bowen, 881 F.2d 747, 752 (9th Cir. 1989); Matney 14 v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (“[w]hen confronted with conflicting medical 15 opinions, an ALJ need not accept a treating physician's opinion that is conclusory and brief and 16 unsupported by clinical findings”). 17 Plaintiff finally contends that the ALJ should have recontacted Dr. Welden for clarification 18 rather than rejecting his opinion. (Doc. 14, p. 15 (relying on Social Security Ruling (“SSR”) 19 96-5p5 (requiring the adjudicator to make every reasonable effort to recontact a treating source for 20 clarification if the basis for his opinion cannot be ascertained)).) However, Plaintiff misstates the 21 ALJ’s burden to flesh out the record: “The claimant bears the burden of proving that she is 22 disabled.” Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The ALJ’s duty to recontact a 23 medical source or order a review of that source’s records is only triggered where the medical 24 record is insufficient to make a disability finding or the evidence conflicts to the extent that the 25 ALJ cannot reach a conclusion. 20 C.F.R. §§ 404.1512(e), 416.912(e) (“[w]hen the evidence we 26 5 Social Security Rulings (“SSR”) are final opinions and statements of policy by the Commissioner of Social 27 Security, binding on all components of the Social Security Administration. 20 C.F.R. § 422.406(b)(1). They are “to be relied upon as precedent in determining cases where the facts are basically the same.” Paulson v. Bowen, 836 F.2d 28 1249, 1252 n.2 (9th Cir.1988). 17 1 receive from your treating physician or psychologist or other medical source is inadequate for us 2 to determine whether you are disabled, we will need additional information to reach a 3 determination or a decision.”); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). The ALJ 4 determined that Dr. Welden’s assessments were inconsistent, poorly explained, and contradictory 5 to the weight of the evidence, not that Dr. Welden’s opinions were ambiguous or somehow 6 rendered the record insufficient to reach a disability determination. (AR 33-34.) The ALJ was 7 under no duty to solicit a further and unnecessary supplement to Dr. Welden’s properly rejected 8 opinion. “There simply is no such duty to collect further evidence absent inconsistency, conflict, 9 or a lack of evidence in the medical record such that additional or supplement medical evidence is 10 necessary to make a decision on the claim.” Jewell v. Astrue, No. 1:09-CV-0348-SKO, 2010 WL 11 3238849, at *6 (E.D. Cal. Aug. 12, 2010); Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 12 2005). 13 In sum, the ALJ did not err in discounting Dr. Welden’s assessment as “brief and 14 conclusionary in form with little in the way of clinical findings to support the conclusion that 15 appellant was totally disabled.” Young v. Heckler, 803 F.2d 963, 968 (9th Cir. 1988). The ALJ’s Consideration of Plaintiff’s Bilateral Carpal Tunnel Syndrome 16 2. 17 Plaintiff contends the ALJ erred by failing to include in her residual functional capacity 18 (“RFC”) assessment those limitations Dr. Bader had opined were imposed by Plaintiff’s carpal 19 tunnel syndrome. (Doc. 14, p. 16.) The Commissioner contends the ALJ properly rejected Dr. 20 Bader’s opinion regarding Plaintiff’s manipulative limitations as inconsistent with completely 21 normal results from examination of Plaintiff’s hands. (Doc. 18, p. 12.) 22 The ALJ found that 23 . . . Dr. Bader noted that [Plaintiff]’s shoulder retained full range of motion without pain, his elbows were unremarkable, his wrists had full range of motion without pain but did have bilateral Tinel’s signs in his wrists, and that his hands retained the ability to engage in fine and gross manipulations. . . . Neurological testing was equally unremarkable but with some decreased sensation in [Plaintiff’s] bilateral median nerve distribution in his wrists. Dr. Bader concluded that [Plaintiff] had discogenic low back pain but also stated that [Plaintiff] had bilateral carpal tunnel syndrome . . . [and] was limited to non-strenous and nonrepetitive activities due to bilateral carpal tunnel syndrome. 24 25 26 27 28 18 1 (AR 32.) As the ALJ discussed, “there was almost no evidence to support [Dr. Bader’s] 2 conclusion that [Plaintiff] had carpal tunnel syndrome and that it caused functional impairments.” 3 (AR 32.) Nowhere else in the record was bilateral carpal tunnel syndrome mentioned, diagnosed, 4 or observed. (See generally AR.) Dr. Bader’s own diagnostic notes also do not support a 5 conclusion of bilateral carpal tunnel syndrome. (AR 32-33; see AR 425 (normal findings in 6 Plaintiff’s shoulders, elbows, and hands).) Though Dr. Bader observed Tinel’s signs in Plaintiff’s 7 wrists, he otherwise noted painless, full range of motion, “well preserved” fine and gross 8 manipulation, and unimpaired ability to make a fist. (AR 425.) Notably, though Dr. Bader noted 9 Plaintiff had bilateral carpal tunnel syndrome in his “discussion” and “functional assessment,” he 10 only proffered a single diagnosis of discogenic low back pain. (AR 427.) 11 The ALJ further noted that during the hearing Plaintiff had testified that while he had 12 problems with his hands, he has not spoken with a doctor about it. (AR 33; see AR 57.) No other 13 credited medical source opined to a diagnosis of bilateral carpal tunnel syndrome or to any 14 manipulative limitations imposed by bilateral carpal tunnel syndrome. (See generally AR.) The 15 record as a whole is bereft of evidence demonstrating a medically determinable impairment of 16 bilateral carpal tunnel syndrome exists. 17 The RFC is an assessment of an individual’s ability to do sustained work-related physical 18 and mental activities in a work setting on a regular and continuing basis of 8 hours a day, for 5 19 days a week, or an equivalent work schedule. SSR 96-8p. The RFC assessment considers only 20 functional limitations and restrictions that result from an individual’s medically determinable 21 impairment or combination of impairments. Id. “In determining a claimant’s RFC, an ALJ must 22 consider all relevant evidence in the record including, inter alia, medical records, lay evidence, and 23 ‘the effects of symptoms, including pain, that are reasonably attributed to a medically 24 determinable impairment.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). 25 Plaintiff contention that Dr. Bader’s “uncontroverted clinical findings” and Dr. Welden’s 26 properly discredited opinion support a diagnosis of bilateral carpal tunnel syndrome is without 27 merit. (Doc. 14, p. 15.) The record as a whole does not demonstrate the existence of a medically 28 determinable impairment of bilateral carpal tunnel syndrome. 19 The single mention of this 1 syndrome in Dr. Bader’s notes -- not even proffered as a formal diagnosis -- is not sufficient to 2 sustain a finding of disability. Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) (“[t]he mere 3 existence of an impairment is insufficient proof of a disability”); see also 20 C.F.R. § 416.908 (“A 4 physical or mental impairment must be established by medical evidence consisting of signs, 5 symptoms, and laboratory findings, not only by your statement of symptoms”); 42 U.S.C. §§ 6 423(d)(3), 1382(a)(3)(D) (a “physical or mental impairment” is one that “results from anatomical, 7 physiological, or psychological abnormalities which are demonstrable by medically acceptable 8 clinical and laboratory diagnostic techniques”). 9 In sum, because the record does not establish the existence of a medically determinable 10 impairment of bilateral carpal tunnel syndrome, the ALJ did not err by failing to include any 11 limitations to her RFC assessment specifically addressing Plaintiff’s alleged bilateral carpal tunnel 12 syndrome. See SSR 96-7p. 13 B. The ALJ’s Step 5 Analysis 14 Plaintiff contends the ALJ erred at Step 5 by relying on VE testimony rather than applying 15 the Medical Vocational Guidelines (the “Grids”), by failing to explain the conflict between the 16 DOT requirements for the job Hand Packer and Plaintiff’s ability to walk/stand, by failing to 17 include Plaintiff’s illiteracy in her hypothetical to the VE, and by independently finding Plaintiff 18 was capable of performing the requirements of other medium-level jobs in the national economy. 19 (Doc. 14, pp. 6-11.) The Commissioner asserts the ALJ properly relied on VE testimony rather 20 than applying the Grids. (Doc. 18, p. 14.) The Commissioner further asserts that because the VE 21 was aware of Plaintiff’s inability to communicate in English, the failure to include an explicit 22 limitation in the hypotheticals posed to the VE was harmless. (Doc. 18, pp. 19-20.) Plaintiff 23 responds that the ALJ’s RFC assessment that Plaintiff was capable of medium work with postural 24 limitations essentially “limited [Plaintiff] to performance of light-level jobs,” and directs a finding 25 of disabled at Step 5. (Doc. 19, p. 2.) 26 // 27 // 28 // 20 1. 1 2 3 4 5 6 7 8 9 10 11 Plaintiff contends that had the ALJ properly found Plaintiff illiterate and applied the appropriate age category (“individual of advanced age” or “closely approaching retirement age”)6, the Grids would dictate a finding of disabled. 20 C.F.R. § 404, subpt. P, app. 2, 202.00(c) (directing a finding of disabled for individuals of advanced age who are limited to light work or less unless they have sills that are “readily transferrable” to skilled or semi-skilled work); id. at § 202.00(f) (directing a finding of disabled for individuals closely approaching retirement age unless other work is so similar to their previous work they will need to “make very little, if any, vocational adjustment). See also id. at § 202.02 (directing a finding of disabled for individuals of advanced age who can perform only light work and have limited or less education with a history of skilled or unskilled history with no transferable skills). 12 13 14 15 16 17 18 19 20 21 22 23 However, the Grids are only applicable where non-exertional limitations do not erode the representative occupational base. Lounsburry, 468 F.3d at 1115 (“the [G]rids are predicated on a claimant suffering from an impairment which manifests itself by limitations in meeting the strength requirements of jobs (‘exertional limitations’); they may not be fully applicable where the nature of a claimant's impairment does not result in such limitations (‘non-exertional limitations’)”). The reason for this limitation on the Grids’ application is that, despite having the residual functional capacity to perform a full range of unskilled occupations at a given exertional level, a claimant may not be able to adjust to these jobs because of non-exertional limitations. SSR 83-10 (January 1983). In particular, non-exertional impairments -- including postural and manipulative limitations such as difficulty reaching, handling, stooping, climbing, crawling, or crouching -- may, if sufficiently severe, limit a claimant’s functional capacity in ways not contemplated by the Grids. 20 C.F.R. § 404.1569. 24 25 26 The ALJ Did Not Err By Relying on VE Testimony Rather than Applying the Grids Where such limitations exist, such as the postural limitations the ALJ included in her RFC assessment, VE testimony is required to determine the extent to which the medium work base is eroded. Swenson v. Sullivan, 876 F.2d 683, 688 (9th Cir. 1989) (the Grids “are an administrative 27 6 Plaintiff was of advanced age on his alleged onset date and was closely approaching retirement age on the date of 28 the ALJ’s decision. (AR 35-37.) 21 1 tool on which the Secretary must rely when considering claimants with substantially uniform 2 levels of impairment,” and, “[w]hen a claimant’s nonexertional limitations significantly limit the 3 range of performable work, the Secretary may not rely only on the [G]rids but must take the 4 testimony of a vocational expert”). 5 The Grids present, in table form, a short-hand method for determining the availability and 6 numbers of suitable jobs for a claimant. Tackett, 180 F.3d at 1101. The Grids categorize jobs by 7 their physical-exertional requirements and consist of three separate tables-one for each category: 8 “[m]aximum sustained work capacity limited to sedentary work,” “[m]aximum sustained work 9 capacity limited to light work,” and “[m]aximum sustained work capacity limited to medium 10 work.”7 20 C.F.R. § 404, subpt. P, app. 2, Rule 200.00. Each Grid presents various combinations 11 of factors relevant to a claimant’s ability to find work. The factors in the Grids are the claimant’s 12 age, education, and work experience. For each combination of these factors, e.g., fifty years old, 13 limited education, and unskilled work experience, the Grids direct a finding of either “disabled” or 14 “not disabled” based on the number of jobs in the national economy in that category of physical15 exertional requirements. See id. This approach allows the Commissioner to streamline the 16 administrative process and encourages uniform treatment of claims. See Heckler v. Campbell, 461 17 U.S. 458, 460-62 (1983) (discussing the creation and purpose of the Medical-Vocational 18 Guidelines). “The Commissioner’s need for efficiency justifies use of the grids at step five where they 19 20 completely and accurately represent a claimant’s limitations. In other words, a claimant must be 21 able to perform the full range of jobs in a given category, i.e., sedentary work, light work, or 22 medium work.” Tackett, 180 F.3d at 1101 (italics in original) (citing Heckler, 461 U.S. at 461). 23 While non-exertional limitations do not automatically preclude application of the Grids, 24 Descrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 577 (9th Cir. 1988), non-exertional 25 limitations that “limit the claimant’s functional capacity in ways not contemplated by the [Grids]” 26 require the use of a VE to testify to the availability of jobs for the claimant, Tackett, 180 F.3d at 27 7 If a claimant is found able to work the full range of heavy work this is “generally sufficient for a finding of not 28 disabled.” 20 C.F.R. § 404, subpt. P, app. 2, § 204.00. 22 1 1101-02. 2 Here, there is no dispute that the ALJ imposed non-exertional functional limitations upon 3 Plaintiff’s ability to perform the requirements of the full range of medium work.8 (AR 28-29.) 4 Because Plaintiff’s non-exertional limitations “‘significantly limit the range of work’ he can 5 perform, mechanical application of the [G]rids was inappropriate.” Id. (quoting Desrosiers, 846 6 F.2d at 577). The ALJ did not err by relying on VE testimony rather than applying the Grids. Plaintiff’s contention that the erosion of the medium work base due to these non-exertional 7 8 limitations somehow means that he is consigned to light work is also without merit. (See Doc. 19, 9 p. 2.) Though the VE testified that the imposition of non-exertional limitations significantly 10 eroded the available medium work base (see AR 61 (a limitation to only occasional postural 11 activities would “rule out the great majority of medium jobs”)), there are still medium occupations 12 existing in significant numbers in the national economy that Plaintiff is capable of performing (see 13 AR 60-61 (Plaintiff is able to perform the requirements of hand packer, DOT 920.587-018, 22,000 14 jobs in California and 200,000 in the nation; electronics worker, DOT 726.687-010, 11,000 jobs in 15 California and 80,000 in the nation; laundry worker, DOT 361.587-010, 5,000 jobs in California 16 and 40,000 in the nation)). Plaintiff is not, therefore, somehow limited to light work by the non17 exertional limitations imposed by his medically determinable impairment. 18 2. 19 The ALJ Did Not Err By Including a Limitation to Standing/Walking for Six Hours in an Eight-Hour Workday in the Hypothetical to the VE 20 Plaintiff contends the ALJ erred by including a limitation to “walk and stand for six hours 21 in an eight-hour workday,” when Dr. Bader had opined Plaintiff could “walk and stand no more 22 than six hours out of an eight-hour day.” (Doc. 14, p. 10 (citing AR 29; 427).) The 23 Commissioner asserts that the ALJ properly found Plaintiff could walk and stand for six hours in 24 8 25 26 27 The ALJ found Plaintiff retained the residual functional capacity (“RFC”) . . . to lift/carry and push/pull up to fifty pounds occasionally and up to twenty-five pounds frequently, can stand/walk for six hours in an eight-hour workday, and has no limits on his ability to sit during the workday. Further, [Plaintiff] can never climb ladders, ropes, or scaffolds; can occasionally climb ramps and stairs; and can occasionally balance, stoop, kneel, crouch, and crawl. 28 (AR 28-29.) 23 1 an eight-hour workday and explicitly communicated this to the VE. (Doc. 18, p. 20 (citing AR 602 61).) 3 During the hearing, the ALJ asked the VE to consider an individual capable of, among 4 other limitations, standing and walking for six hours in an eight-hour day. (AR 60.) The VE 5 testified such an individual can perform the requirements of hand packer, DOT 920.587-018, 6 electronics worker, DOT 726.687-010, and laundry worker, DOT 361.587-010. (AR 60.) 7 Plaintiff’s attorney then asked the VE whether a person limited to walk and stand “no more than” 8 six hours in an eight-hour day would be able to work. (AR 64-65.) The VE testified that all the 9 positions identified would be eliminated. (AR 65.) Plaintiff contends that the ALJ’s failure to “mention this part of the VE’s testimony in her 10 11 decision” demonstrates that the ALJ’s “conclusions are not based on vocational expert testimony.” 12 (Doc. 14, p. 10.) However, there is no limitation to walk/stand “no more than” six hours out of an 13 eight-hour day into the ALJ’s RFC assessment (see AR 29-30 (finding Plaintiff “can stand/walk 14 for six hours in an eight-hour workday”)) and Plaintiff does not argue that the ALJ’s RFC 15 assessment that he “can stand/walk for six hours in an eight-hour workday” was incorrect9 (see 16 Docs. 14; 19). Limitations not included in the RFC do not have to be presented to the VE for 17 consideration. See Valentine, 574 F.3d at 690 (“[t]he hypothetical an ALJ poses to a vocational 18 expert, which derives from the RFC, must set out all the limitations and restrictions of the 19 particular claimant.”) (internal citation and quotations omitted). The ALJ did not err by presenting 20 a hypothetical question to the VE comprising only those specific limitations encompassed in her 21 RFC assessment. 3. 22 23 24 The ALJ Erred By Failing to Include Plaintiff’s Illiteracy in Her Hypothetical to the VE Plaintiff contends that his illiteracy and inability to communicate in English are inconsistent with the VE’s testimony that he can perform the requirements of the hand packer job 25 26 27 28 9 Plaintiff appears to be arguing, in effect, that the ALJ failed to fully credit Dr. Bader’s opinion that Plaintiff was limited to walking and standing “no more than” six hours out of an eight-hour day. However, the ALJ partially discredited Dr. Bader’s opinion and it therefore is not entitled to controlling weight, and, regardless, the ALJ was not required to incorporate into his assessed RFC every limitation opined to by Dr. Bader, see See 20 C.F.R. § 404.1545(a)(1) (ALJs are not required to base their RFCs on any one medical opinion; rather they consider the evidence in the record as a whole in formulating the RFC). 24 1 as defined in the DOT. (Docs. 14, p. 9; 19, p. 3.) Plaintiff argues the VE failed to explain how an 2 individual who cannot read, write or speak English can perform the jobs identified. (Id.) The 3 Commissioner contends that because the VE was present at the hearing and listened to Plaintiff 4 testify in Spanish with the use of a translator, he necessarily knew that Plaintiff was illiterate and 5 could not communicate in English and therefore must have taken it into account in his expert 6 testimony. (Doc. 18, pp. 19-21.) 7 The Commissioner bears the burden at Step 5 of proving that Plaintiff can perform other 8 work in the national economy, given his RFC, age, education and work experience. 20 C.F.R. 9 § 416.912(g); Silveira v. Apfel, 204 F.3d 1257, 1261 n.14 (9th Cir. 2000). When considering 10 education as a vocational factor, the categories of education that are considered include literacy 11 and the ability to communicate in English.10 20 C.F.R. §§ 404.1564(b)(1), (b)(5); 416.964(b)(1), 12 (b)(5). Though literacy or education level is a vocational factor relevant only to the Step Five 13 inquiry and not to the existence of a disability, Silveira, 204 F.3d at 1261 n.14, the ALJ must 14 “definitively explain” the impact of a claimant’s illiteracy on her ability to find and perform either 15 past relevant work or alternative work, Pinto v. Massanari, 249 F.3d 840, 848 (9th Cir. 2001). 16 The VE identified at least one job that requires a Language Level 1. (AR 60-61 (testifying 17 Plaintiff could perform the requirements of hand packer, DOT920.587-018.) Language Level 1 18 requires that a person have the following skills: 19 Reading: Recognize meaning of 2,500 (two-or three-syllable) words. Read at a rate of 95120 words per minute. Compare similarities and differences between words and series of numbers. 20 21 22 Writing: Print simple sentences containing subject, verb, and object, and series of numbers, names, and addresses. 23 Speaking: Speak simple sentences, using normal word order, and present and past tenses. 24 See DICOT 920.587-018. 25 // 26 10 A distinction exists between an assessment of literacy and an assessment of the ability to communicate in English, 27 and an ALJ must consider both in determining whether a claimant can perform work pursuant to the regulations. 20 C.F.R. §§ 404.1564(b)(1), (b)(5); 416.964(b)(1), (b)(5); see also Calderon v. Astrue, No. 1:08-CV-01015 GSA, 2009 28 WL 3790008, at *9 (E.D. Cal. Nov. 10, 2009). 25 1 Language Level 1 is the lowest language development contemplated by the DOT. Castillo 2 v. Comm’r of Soc. Sec., No. 1:14-CV-01566-SAB, 2016 WL 54387, at *4 (E.D. Cal. Jan. 5, 2016); 3 see also Donahue v. Barnhardt, 279 F.3d 441, 445 (7th Cir. 2002) (“basic literacy [defined as a 4 vocabulary of 2,500 words, the ability to read about 100 words a minute, and the ability to print 5 simple sentences] is essential for every job in the economy”) (emphasis in original). 6 “Understanding English is key to understanding and following workplace instructions, 7 communicating with other workers, and responding to supervision.” Kong v. Astrue, No. 1:098 CV-01410-SMS, 2011 WL 674048, at *12 (E.D. Cal. Feb. 16, 2011). “Because the DOT’s level 1 9 language definition requires language ability more advanced than a non-English speaker can meet, 10 if an ALJ determines that a non-English-speaking claimant can perform such a job, he or she must 11 explain why the level 1 language requirement does not apply in that instance.” Id. (citing Pinto, 12 249 F.3d at 847). If the ALJ omits that analysis, a court cannot review his or her decision. Id. 13 Here, it is undisputed that during the hearing on April 24, 2103, the ALJ did not ask the 14 VE to consider an illiterate individual unable to communicate in English. (See AR 58-66.) It is 15 also undisputed that despite acknowledging in the written decision that Plaintiff “is not able to 16 communicate in English, and is considered the same way as an individual who is illiterate in 17 English,” the ALJ then did not explain the inconsistency between Plaintiff’s literacy and his ability 18 to perform the requirements of Language Level 1. (See AR 35-36.) This is reversible error. See 19 Pinto, 249 F.3d 840; Yacoub v. Colvin, No. 1:14-CV-00884-SKO, 2016 WL 541407, at *14 (E.D. 20 Cal. Feb. 11, 2016); Her v. Astrue, No. 1:09-CV-0945 SKO, 2010 WL 3238841 (E.D. Cal. Aug. 21 12, 2010). 22 Even when the ALJ has included the claimant’s language limitations in his hypothetical 23 questions to the VE, the Ninth Circuit has held it is still reversible error where the ALJ failed to 24 explain his decision to deviate from the DOT’s language requirements. Pinto, 249 F.3d at 846-47. 25 In Pinto, the Ninth Circuit faulted the ALJ’s failure to explain how the claimant’s “language and 26 literary abilities” figured in his determination that the claimant could return to her work hand27 packing pig feet, chitterlings, pig skin, and chilies. Id. at 846. See also Her, 2010 WL 3238841 28 (explaining that, although an ALJ naturally relies on a VE’s testimony, the record must include 26 1 persuasive evidence to support the opinion and the VE must testify regarding the deviation from 2 the DOT language requirement). Literacy and ability to communicate in English are vocational 3 factors that have been strictly applied in this Circuit. 4 The Commissioner’s citation to Meza v. Astrue, No. C-09-1402-EDL, 2011 WL 11499, at 5 *20-21 (N.D. Cal. Jan. 4, 2011), to support a finding that no DOT conflict exists is inapposite. 6 (Doc. 18, p. 20.) The Commissioner contends Meza found no error where the VE had testified 7 that a Spanish-speaking and illiterate individual could perform representative jobs requiring 8 reasoning level 2 and language level 1. (Doc. 18, p. 20.) However, in Meza, the VE specifically 9 addressed the claimant’s literacy and ability to communicate in English by testifying that the 10 claimant could perform jobs where someone else could give a short demonstration and the 11 claimant could then carry out the job. 2011 WL 11499, at *21. No such testimony was elicited 12 here. 13 The Commissioner also contends that because Plaintiff’s previous work “required greater 14 language ability than the hand packager job,” Plaintiff has demonstrated he can perform the 15 requirements of language level 1. (Doc. 18, p. 20-21.) The Ninth Circuit, however, has already 16 resoundingly rejected the argument that a claimant’s previously performance of work requiring a 17 higher language level somehow excused the ALJ from explaining how the claimant’s language 18 limitations would impact her ability to find and perform a similar job or the requirements of the 19 jobs identified by the VE. Pinto, 249 F.3d at 847. Even were the Ninth Circuit unclear on this 20 issue, the ALJ did not offer any explanation for her deviation from the DOT and this Court may 21 review “only the reasons provided by the ALJ in the disability determination and may not affirm 22 the ALJ on a ground upon which he did not rely.” Orn, 495 F.3d at 630. 23 In sum, the VE’s testimony that Plaintiff can perform work as a hand packer conflicts with 24 the DOT Language Level requirements for that job, and the ALJ’s finding that Plaintiff can 25 perform the requirements of this representative occupation is not supported by substantial 26 evidence. Remand is appropriate on this issue. 27 // 28 // 27 4. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Finally, Plaintiff contends the ALJ committed reversible error by “independently finding there were other medium-level jobs Plaintiff could perform and failing to provide an adequate explanation for this finding.” (Doc. 14, p. 10.) The Commissioner responds that even were this error, any error was harmless because “the ALJ did not rely on this finding to find Plaintiff not disabled; the identification of the hand packer position sufficiently established Plaintiff could work under the agency’s rules[.]” (Doc. 18, p. 21.) Though the Court agrees that the ALJ erred by finding, sua sponte and without eliciting expert testimony as required by law, that Plaintiff was capable of other work in the national economy, this error was ultimately harmless. The ALJ’s determination Plaintiff was not disabled was based on her conclusion Plaintiff could perform the requirements of work as a hand packer, not on her improper independent finding that there were other medium-level jobs in the DOT which she believed Plaintiff would be capable of performing.11 See Carmickle, 533 F.3d at 1162 (an error is harmless where there “remains substantial evidence supporting the ALJ’s conclusions on . . . credibility and the error does not negate the validity of the ALJ’s ultimate [credibility] conclusion”) (internal citation and quotations omitted) (alteration in original). C. 18 19 inability to communicate in English seriously impacts Plaintiff’s ability to work. In all other respects, the ALJ’s findings are affirmed. 21 CONCLUSION 22 24 Remand for One Issue This case shall be remanded for the ALJ to consider whether Plaintiff’s illiteracy and 20 23 The ALJ’s Independent Findings of Alternative Medium Jobs that Plaintiff Retained the RFC to Perform Was Harmless Error Based on the foregoing, the Court finds that remand is necessary to reconsider the impact of Plaintiff’s illiteracy and inability to communicate in English on his ability to work. Accordingly, the Court GRANTS Plaintiff’s appeal from the administrative decision of the 25 26 27 28 11 The Court notes that remand remains necessary because, while the ALJ’s decision to independently find other jobs she believed Plaintiff to be capable of performing was harmless error, the ultimate disability determination was based upon the ALJ’s improper reliance on VE testimony that conflicted with the DOT. The ALJ’s reliance on Plaintiff’s ability to perform the requirements of the hand packer job despite that he is illiterate and unable to communicate in English, without explanation for the deviation, remains harmful error and warrants remand. 28 1 Commissioner of Social Security. The Clerk of this Court is DIRECTED to enter judgment in 2 favor of Plaintiff Francisco Fierro Obeso, and against Carolyn W. Colvin, Acting Commissioner of 3 Social Security. 4 5 IT IS SO ORDERED. 6 Dated: April 19, 2016 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29
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