Conrad v. Astrue, No. 3:2008cv02851 - Document 10 (N.D. Cal. 2009)
Court Description: ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT re 8 , 9 . (SI, COURT STAFF) (Filed on 7/2/2009)
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Conrad v. Astrue Doc. 10 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 TARRY CONRAD, 9 United States District Court For the Northern District of California 10 11 12 13 No. C 08-2851 SI Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT v. MICHAEL J. ASTRUE, Commissioner of Social Security Administration Defendant. / 14 The parties have filed cross-motions for summary judgment in this Social Security appeal. 15 Having carefully considered the parties’ papers and the administrative record, the Court hereby DENIES 16 plaintiff’s motion, and GRANTS defendant’s motion. 17 18 BACKGROUND 19 On February 10, 2005, plaintiff applied for disability insurance benefits and supplemental 20 security income on the basis of “back and leg problems, hearing and mental problems.” Administrative 21 Record (“AR”) at 131. After the Social Security Administration denied the applications initially and 22 on reconsideration, this matter was heard by an Administrative Law Judge (“ALJ”). Id. at 290, 295. 23 On August 24, 2007, the ALJ issued a decision finding plaintiff was not disabled because she could 24 perform her past relevant work as a cashier. Id. at 18-27. 25 The ALJ found that the record contained insufficient evidence to establish any medically 26 determinable impairment prior to March 11, 2005. Id. at 21. The ALJ noted that plaintiff was seen in 27 November 2003 for neck pain after a fall, and that she was treated and released without complication. 28 Dockets.Justia.com United States District Court For the Northern District of California 1 Id. The ALJ stated, “[t]here is no documentation in the record before me showing any medical care or 2 treatment for any conditions for the period between November 2003 and March 2005.” Id. In March 3 2005, plaintiff was evaluated and treated for depression and active polysubstance abuse. Id. The ALJ 4 found that the evidence showed that beginning March 11, 2005, plaintiff had the severe impairments 5 of depression and a polysubstance use disorder, and that she had the residual functional capacity to 6 perform “a full range of work at all exertional levels but with the following nonexertional limitations: 7 she cannot understand, remember, or carry out detailed or complex instructions; and should not work 8 in a very demanding work setting.” Id. at 21-22. The ALJ found that plaintiff was capable of 9 performing her past relevant work as a cashier, and that she was also capable of “doing a variety of 10 clerical jobs and manual jobs, such as assembly and painting jobs” that she had previously done on a 11 temporary basis. Id. at 26-27. 12 Plaintiff requested review of the ALJ’s decision by the Appeals Council. In a decision dated 13 May 9, 2008, the Appeals Council adopted all of the ALJ’s findings and conclusions except for the 14 ALJ’s finding that plaintiff was capable of performing her past relevant work as a cashier. Id. at 10. 15 The Appeals Council noted that while plaintiff reported she had worked as a K-Mart cashier in 1998 and 16 1999, a computer query showed no earnings from K-Mart during that time, and thus it was unclear 17 whether the cashier job could be considered to be past relevant work. Id. The Appeals Council found 18 that “[t]he claimant’s nonexertional limitations do not significantly affect her residual functional 19 capacity to perform work-related activities at all exertional levels. Using section 204.00 of 20 CFR Part 20 404, Subpart P, Appendix 2, as a framework for decisionmaking, the claimant is not disabled (20 CFR 21 416.920(f)).” Id. at 10-11.1 The Appeals Council’s decision is the final decision of the Commissioner 22 of Social Security for purposes of the Court’s review. 23 24 25 LEGAL STANDARD A district court’s review of a disability determination is limited, and a final administrative 26 27 28 1 When the agency relies on the Medical-Vocational Guidelines, 20 C.F.R. pt. 404, subpt. P, app. 2, there is no requirement that the agency enunciate specific jobs for which the claimant is physically capable of performing. See Odle v. Heckler, 707 F.2d 439, 440 (9th Cir. 1983). 2 1 decision may be altered “only if it is based on legal error or if the fact findings are not supported by 2 substantial evidence.” Sprague v. Bowen, 812 F.2d 1226, 1229 (9th Cir. 1987). Substantial evidence 3 is relevant evidence in the entire record “which a reasonable person might accept as adequate to support 4 a conclusion.” Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). Substantial evidence consists 5 of “more than a mere scintilla but less than a preponderance.” Young v. Sullivan, 911 F.2d 181, 183 (9th 6 Cir. 1990). The Court must consider the entire record, including evidence that both supports and detracts 7 from the ALJ’s decision. See Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). However, 8 the ALJ’s decision must be upheld if the evidence is susceptible to more than one rational interpretation. 9 Allen v. Secretary of Health and Human Servs., 726 F.2d 1470, 1473 (9th Cir. 1984). United States District Court For the Northern District of California 10 11 DISCUSSION 12 Plaintiff raises two issues on appeal. First, plaintiff contends that the Appeals Council erred by 13 using the Medical-Vocational Guidelines, 20 C.F.R. pt. 404, subpt. P, app. 2 (also referred to as the 14 “Grid”), to conclude that plaintiff was capable of performing other work in the national economy, and 15 that instead the testimony of a vocational expert was required. Second, plaintiff contends that the 16 Appeals Council failed to address plaintiff’s subjective complaints. 17 18 I. Medical-Vocational Guidelines/Vocational Expert 19 Citing Tackett v. Apfel, 180 F.3d 1094 (9th Cir. 1999), plaintiff contends that “where a claimant 20 has significant non-exertional limitations, the ALJ cannot rely on the Medical-Vocational Guidelines 21 (i.e., the “Grids”),” but rather “is required to take the testimony of a vocational expert before making 22 a decision at the fifth step of the evaluation.” Pl.’s Mot. Sum. J. at 5-6. However, Tackett does not go 23 quite so far as plaintiff suggests. 24 As explained in Tackett, “[o]nce a claimant has established that he or she suffers from a severe 25 impairment that prevents the claimant from doing any work he or she has done in the past, the claimant 26 has made a prima facie showing of disability. At this point – step five – the burden shifts to the 27 Commissioner to show that the claimant can perform some other work that exists in ‘significant 28 3 1 numbers’ in the national economy, taking into consideration the claimant’s residual functional capacity, 2 age, education, and work experience.” Id. at 1100. The Commissioner can meet this burden by the 3 testimony of a vocational expert or by reference to the Medical-Vocational Guidelines. Id. at 1101. The 4 Tackett court described the Guidelines as follows: 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 In some cases, it is appropriate for the ALJ to rely on the Medical-Vocational Guidelines to determine whether a claimant can perform some work that exists in “significant numbers” in the national economy. The Medical-Vocational Guidelines are a matrix system for handling claims that involve substantially uniform levels of impairment. See 20 C.F.R. pt. 404, subpt. P, app. 2. The Guidelines present, in table form, a short-hand method for determining the availability and numbers of suitable jobs for a claimant. These tables are commonly known as “the grids.” The grids categorize jobs by their physical-exertional requirements and consists of three separate tables – one for each category: “[m]aximum sustained work capacity limited to sedentary work,” “[m]aximum sustained work capacity limited to light work,” and “[m]aximum sustained work capacity limited to medium work.” 20 C.F.R. pt. 404, subpt. P, app. 2, rule 200.00. Each grid presents various combinations of factors relevant to a claimant’s ability to find work. The factors in the grids are the claimant’s age, education and work experience. For each combination of these factors, e.g., fifty years old, limited education, and unskilled work experience, the grids direct a finding of either “disabled” or “not disabled” based on the number of jobs in the national economy in that category of physical-exertional requirements. See id. Id. (emphasis in original). 16 Tackett holds that the Commissioner may use the grids only when they “completely and 17 accurately represent a claimant’s limitations.” Id. The court cautioned that “significant non-exertional 18 impairments, such as poor vision or inability to tolerate dust or gases, may make reliance on the grids 19 inappropriate. . . . However, the fact that a non-exertional limitation is alleged does not automatically 20 preclude application of the grids.” Id. at 1102. The critical point is that the grids should only be applied 21 where a claimant’s functional limitations – both exertional and non-exertional – “fall into a standardized 22 pattern accurately and completely described by the grids.” Id. at 1103. In Tackett, the Ninth Circuit 23 held that the ALJ erred by relying solely on the grids because the claimant’s need to shift, stand up, or 24 walk around every 30 minutes “is a significant non-exertional limitation not contemplated by the grids.” 25 Id. at 1103-04. 26 Thus, contrary to plaintiff’s assertions, Tackett does not automatically preclude use of the grids 27 whenever a claimant has a significant non-exertional limitation. See Hoopai v. Astrue, 499 F.3d 1071, 28 4 United States District Court For the Northern District of California 1 1076 (9th Cir. 2007) (“[A] vocational expert is required only when there are significant and ‘sufficiently 2 severe’ non-exertional limitations not accounted for in the grid.”); Lounsburry v. Barnhart, 468 F.3d 3 1111, 1115 n.2 (9th Cir. 2006) (“Tackett’s bar on exclusive reliance on the grids is limited by its 4 requirement that the nonexertional impairments invoked must be significant enough to limit further the 5 range of work permitted by exertional limitations before precluding application of the grids.”). 6 Here, plaintiff does not advance any argument regarding why, given her nonexertional 7 limitations, usage of the grids was improper. The Appeals Council adopted the ALJ’s finding that 8 plaintiff is capable of “a full range of work at all exertional levels but with the following nonexertional 9 limitations: she cannot understand, remember, or carry out detailed or complex instructions; and should 10 not work in a very demanding work setting.” AR at 21-22. There is nothing about these nonexertional 11 limitations that renders usage of the grids improper, particularly because the grids contemplate unskilled 12 work “which needs little or no judgment to do simple duties.” 20 C.F.R. § 404.1568(a); see also Titles 13 II and XVI: Capability to Do Other Work – The Medical-Vocational Rules as a Framework for 14 Evaluating Solely Nonexertional Impairments, SSR 85-15, Soc. Sec. Rep. Serv. 343, 1985 WL 56857, 15 at *4 (Nov. 30, 1984) (“The basic mental demands of competitive, remunerative, unskilled work include 16 the abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to 17 respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes 18 in a routine work setting. . . . Where there is no exertional impairment, unskilled jobs at all levels of 19 exertion constitute the potential occupational base for persons who can meet the mental demands of 20 unskilled work.”); see also Tackett, 180 F.3d at 1101 n.5 (“If a claimant is found able to work the full 21 range of heavy work this is generally sufficient for a finding of not disabled.”) (internal quotations and 22 citation omitted). 23 24 II. Plaintiff’s subjective testimony 25 Plaintiff also contends that “the Appeals Council failed to address Ms. Conrad’s subjective 26 testimony or provide any reasons whatsoever for discrediting that testimony.” Motion at 6:21-22. 27 However, defendant correctly notes that with the exception of the ALJ’s past work finding, the Appeals 28 5 1 Council adopted all of the ALJ’s findings and conclusions, including the ALJ’s detailed discussion of 2 plaintiff’s subjective testimony and her credibility. AR at 9. The ALJ found plaintiff’s testimony not 3 entirely credible for a number of specific reasons, including, inter alia, the lack of objective evidence 4 to support plaintiff’s subjective complaints, large gaps in her treatment history, plaintiff’s daily 5 activities, and the fact that plaintiff’s symptoms appeared and increased when she failed to take 6 psychotropic medication and/or used drugs or alcohol. Id. at 23-26. By adopting the ALJ’s findings, 7 the Appeals Council did address plaintiff’s subjective testimony and her credibility, and thus plaintiff’s 8 argument lacks merit.2 9 United States District Court For the Northern District of California 10 CONCLUSION 11 For the foregoing reasons and for good cause shown, the Court hereby DENIES plaintiff’s 12 motion for summary judgment and GRANTS defendant’s motion for summary judgment. (Docket Nos. 13 8 & 9). 14 15 IT IS SO ORDERED. 16 17 Dated: July 2, 2009 SUSAN ILLSTON United States District Judge 18 19 20 21 22 23 24 25 26 2 27 28 Plaintiff does not challenge any particular aspect of the ALJ’s credibility findings. In any event, the Court finds that the ALJ’s credibility findings are specific and supported by substantial evidence. The ALJ explains in detail why he found plaintiff’s testimony not entirely credible, including an extensive discussion of the medical evidence. See generally AR at 23-26. 6
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