Booker v. Commissioner Social Security Administration, No. 6:2009cv06350 - Document 23 (D. Or. 2011)
Court Description: Opinion and Order affirming Commissioner's decision. Signed on 02/16/2011 by Chief Judge Ann L. Aiken. (lg)
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Booker v. Commissioner Social Security Administration Doc. 23 FILED'i1 FEB 171:]:17uSDC·ORE IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON RICHARD J. BOOKER, Civ. No. 09 6350-AA OPINION AND ORDER aintiff, v. MICHAEL J. ASTRUE, Commiss r Social Secur y, De Alan Stuart Graf 316 Second Rd. Summertown, 38483 At Y a iff Dwight Holton United States At Adrian L. Brown Assistant States Attorney 1000 SW Third Ave. f e 600 Portland, OR 97204 Thomas M. Elsbe Special Assistant States Attorney Social Security stration 701 Fifth Ave, te 2900 MIS 221A Seattle, WA 98104-7075 Attorneys for 1 - OPINION AND ORDER Dockets.Justia.com AIKEN, ef Judge: iff I ings this j action seeking of a cial decision of the Commissioner denying his application supplemental security income payments (SSI) under Title XVI of the Social Security Act (the Act). under This court has jurisdict 42 U.S.C. §§ 405(g) and 1383(c) (3). The Commissioner's decision is armed. BACKGROUND On Sept icat r 10, for SS1. were init vocational iff Tr. 120 25. lly rt and (VE) law j strat 2008, on ectively reconsideration, and plaintiff testified (ALJ) on August 25, 2009. On September 22, pIa before iff not disabled within the meaning of the Act. 2009, the ALJ issued a the Appeals Council the ALJ's decision the final agency now seeks j PIa sion. iff was fi 2008 39, 40, due diabetes, Tr. 43, a an cis ion nding Tr. 8-24. ew, Tr. 1-3. rendering PIa iff cia I review. y-five ars old at the t decision, with an eighth grade education Tr. ied and Tr. 31-80, 84 9l. On October 9, an After plaintiff's applications appeared 2009, filed 134. PIa antisocial 48, 120, 134. 2 - OPINION AND ORDER no past relevant work. iff alleges disability since February 7, to various physical asthma, of the ALJ's mental sorder, limitations, including high blood pressure. STANDARD OF REVIEW This court must affirm the Commissioner's decision if it is based on proper legal standards, and the findings are supported by substantial evidence in the record. 498, 501 (9th Cir. mere scintilla. 1989). Hammock v. Bowen, Substantial evidence is "more than a It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." v. Perales, 402 u.S. 389, 401 (1971) Co. v. N.L.R.B., 305 u.S. 197, 229 "both the evidence that Richardson (quoting Consolidated Edison (1938)). supports [Commissioner] 's conclusions." 772 879 F.2d The court must weigh and detracts from the Martinez v. Heckler, 807 F.2d 771, (9th Cir. 1986). Where the evidence is susceptible to more than one rational interpretation, Burch v. Barnhart, questions· of testimony the are Commissioner's conclusion must 400 679 F.3d credibility functions 676, and (9th resolutions solely of the Cir. of be upheld. 2005). conflicts Commissioner, While in Morgan the v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999), any negative credibility findings must be supported by findings on the record and supported by substantial evidence. Health & Human Servs., 933 F.2d 735, 738 Ceguerra v. Sec'y of (9th Cir. 1991). COMMISSIONER'S DECISION The initial burden establish disability. 3 - OPINION AND ORDER of proof rests upon the claimant to Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, a claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected . . . to last for a continuous period of not less than 12 months The ALJ " evaluated 42 U.S.C. 423 (d) (1) (A). § plaintiff's allegation pursuant to the relevant sequential process. 482 U.S. 137,140 (1987); 20 C.F.R. disability See Bowen v. Yuckert, 416.920. § of At step one, the ALJ found that plaintiff had not engaged in "substantial gainful acti vi ty" during the period of alleged disability. C.F.R. 14; 20 416.920(b). § At Tr. steps two and three, medically determinable disorder, alcohol the ALJ found impairments dependence, pulmonary disease/asthma, of antisocial personality chronic obstruction diabetes, hypertension, that plaintiff had and hyperlipidemia, but that these impairments did not meet or equal "one of a number of listed impairments that the [Commissioner] severe as to preclude gainful acti vi ty." 416.920(c) and (d). At step acknowledges Tr. 14; are so 20 C.F.R. § Accordingly, the inquiry moved to step four. four, the ALJ determined plaintiff's residual functional capacity (RFC) and found that plaintiff retained the RFC to perform a full range of work at all exertional levels involving short, simple tasks with short, simple instructions. Tr. 15. ALJ also a found that 4 - OPINION AND ORDER plaintiff should not work in The hazardous wor ace or the general public.· contact wi aintiff has no past relevant work, Tr. 23; 20 C.F.R. the ALJ ALJ proceed to step f that intiff was capable of Tr. rforming other work as a kitchen helper. There meaning of t As 416.920(f). § At step f 416.920(g). Tr. 15. , the ALJ Act. plaintif 24; 20 C.F.R. § under not disabl Tr. 24. DISCUSSION Plaintiff asserts that the ALJ erred by his lity to finding eract with co-workers he was able to perform simple Pla his RFC assessment and r work as a despite the fact that the ALJ wi iling to recognize chen he him limited to simple tasks tructions. iff oyment was rd . party testi that s inabili lay witness, a primary impediment to to get along with others. Suzie S zkus, gainful Tr. 48. a A written statement stating that plaintiff is "paranoid" around others, does not along well with authority figures, and becomes angry with others. Tr. 141, 143, 145, 146. The ALJ conside these statements and should avoid contact with ral public. However, the ALJ rejected the allegat that Tr. 17-18, 20-21. that pla iff's inabil to interact with others precluded his ability to perform 5 OPINION AND ORDER iff a y work. act ty. Tr. 20-21. ewing of In so f , the ALJ relied on the psychiatrists psychologists who opined iff's allegation was not supported by cognitive testi ion provided by an 77, 225, 242, 286-87. psychologist. The ALJ Tr. 18-21, 176 aintiff's treating physic not conflict with these ions regarding his mental 1 Tr. 21, nally, 260-63. suggests that plaintiff forming work act daily activities ref 52, 57-58, record, 65, rs while plaintiff's ions with others. convincing and support 49, the ALJ noted that no evidence incarcerated, and whi Tr. 21. the ALJ's are clear, by evidence in the reco 176 77, 221-24, 225, Tr. 41 42, 48 240-46, 286-87; 260-63, 266-69, 533 F.3d 1155, 1160 (9th Cir. 2008) (unles s evidence of malingering is record, the ALJ must convincing reasons). noted plaintiff's not opine that se adverse credibility f Further, while an exami extent of these difficult personality diso psychologist ation, she did s were attributable r or that his disorder resulted in limitations that precluded employment. the ALJ's f Schlitzkus. s are germane to ==~=-~~~~, 6 - OPINION AND ORDER 236 F.3d 503, sent in the ng on clear and social functioning and to plaintiff's antis Finally, did tations. fficulty dealing Upon review or her noted that the statements of an examining psychologist 223-24, t Tr. 223-24. statements of Ms. 512 Cir. 2001). refore, I find no error. B. Step Five Findina Plaintiff :1ext a testimony s that conflicts DOT is 1 instructions." 2. Dictionary r conta This 1 r exceeds his tasks with short simple led y to \\ uninvo DOT, Appendix C, § III. ly commonsense written or oral' The VE did not identi conflicts between the DOT's definit of kitchen he r testimony that plaintiff's RFC corresponds with the s dut ion of in the DOT, which cites Reasoning Level fined as the abil is Occupational Plaintiff relies on the descr understanding to carry out instructions." chen he simp to " Tr. 15, 70. of ifically, plaintiff argues (DOT). irements for the job of RFC because kitchen he the Wl (4th ed. rev. 1991) that ALJ erroneously relied on VE s attendant to that position. Thus, pl iff a rand Ils and s that ALJ erred by failing to inquire into the unresolved inconsistency between the VE's testimony 00-4p, 2000 WL 1898704 the DOT. See Social Security Rul (Dec. 4, 2000). Defendant responds that tchen Iper pos ion also has specific vocational preparation (SVP) of 2, which corresponds with unskil s work, i.e., work that "needs little or no judgment to do e dut time." 20 C.F.R. VE testimony 7 s that can be lea § 416.968(a). on the j Thus, in a s rt peri fendant contends that the s hot conflict with the DOT classifications. OPINION AND ORDER of Regardless, plaintiff's sis on the word "detailed" in Reasoning Level 2 is misp tasks contemplated in DOT description for kitchen he Sweeps and mops floors. s worktables, walls, refrigerators, and meat Segregates and removes trash and garbage and places in designated conta Steam-cleans or hoses-out rbage cans. Sorts bottles, and breaks disposable ones bottle-crushing machine. Washes pots, pans, and trays by hand. Scrapes food from dirty dishes and wa s by hand or places them racks or on conveyor to shwashing machine. Poli s silver, using burni chine tumbler, chemical buffing wheel, and cloth. Holds inverted glasses over revolving s to clean inside ces. Transfers suppl s and equipment between storage and work are~s by hand or by use of handtruck. Sets up banquet tables. Washes and s vegetables, using kni or peeling'machine. or unloads trucks picking up or delivering suppl food. DOT, 318.687-010. in detailed and complex description Supp. 2d 981, Cal. " tasks). cause the ALJ's RFC determination was supported by substantial and the VE testified that s would explain DOT, "[tJhe ALJ's reliance on testimony the I VE gave (C.D. ALJ's prescribed limitation of work which involved "simple, repetit any lates iff's RFC. 983-85 (Reasoning Level 2 did not conflict with t Finally, cont tructions or tasks beyond 403 F. 2005) this response to the hypothetical there was proper." Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005); Tr. 68. Accordingly, I of a that the ALJ did not err r consistent with III 8 OPINION AND ORDER iff's RFC. the duties CONCLUSION For the reasons, was not disabled the the ALJ's finding that r the Act is support record. Accordingly, the by substantial Corrunissioner's AFFIRMED. IT IS SO ORDERED. DATED this ~ Unit 9 - OPINION AND ORDER Y of February, 2011. Ann ken States District iff decision is
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