Julia A. Oawster v. Michael J. Astrue, No. 2:2010cv07001 - Document 19 (C.D. Cal. 2011)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal; IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. See order for further details. (jy)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JULIA A. OAWSTER, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 10-07001 SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Julia A. Oawster ( Plaintiff ) brings this action seeking to 22 overturn the decision of the Commissioner of the Social Security 23 Administration 24 disability insurance benefits and Supplemental Security Income ( SSI ) 25 benefits. 26 United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c). For the 27 reasons stated below, the decision of the Agency is AFFIRMED. 28 \\ (the Commissioner ) denying her application for The parties consented to the jurisdiction of the undersigned 1 II. 2 PROCEDURAL HISTORY 3 Plaintiff filed an application for SSI on July 18, 2003, alleging 4 a disability onset of March 30, 2001, due to diabetes, coronary artery 5 disease, double bypass surgery, spondylolisthesis at L4-5, and a 6 suspicion of breast cancer. (Administrative Record ( AR ) 210-19). 7 The agency denied Plaintiff s claim on November 18, 2003. (AR 85-89). 8 On January 12, 2004, Plaintiff requested a hearing before an 9 Administrative Law Judge, which was held on October 21, 2004. (AR 90, 10 130-65). On January 10, 2005, the ALJ issued an unfavorable decision. 11 (AR 70-84). Plaintiff requested review of the ALJ s decision and the 12 Appeals Council remanded the case for further proceedings on October 20, 13 2005. (AR 43, 179-80). A second hearing with Administrative Law Judge 14 James Goodman (the ALJ ) was held on February 13, 2007. (AR 41-68). On April 7, 2008, the ALJ issued an unfavorable decision. (AR 20-35). Plaintiff again requested review of the ALJ s decision. (AR 18-19). 15 16 17 The Appeals Council denied her request for review on July 15, 2010, and 18 the ALJ s decision became the final decision of the Commissioner. (AR 19 8-10, 18). Plaintiff s Complaint, filed on September 27, 2010, seeks 20 review of the ALJ s decision denying her disability benefits. 21 22 III. 23 FACTUAL BACKGROUND 24 25 Plaintiff was born on October 31, 1960. (AR 133, 187). Plaintiff 26 is a high school graduate. (AR 133). She previously held certificates 27 as a medical assistant and an emergency medical technician. (Id.). Her 28 2 1 application alleges disability beginning on March 30, 2001 due to 2 diabetes, bypass surgery, 3 spondylolisthesis at L4-5, and a suspicion of breast cancer. (AR 211). 4 Plaintiff testified that she worked as a dispatcher of ambulances and 5 medical vans for a company now known as Krippens since 1984, but 6 stopped working in March of 2001 after she suffered a neck injury in a 7 non-work related car accident. 8 [she] was still willing to come in and work [after the accident]. 9 a couple days later is when [her employer] decided to lay [her] off. coronary artery disease, double (AR 134-36). Plaintiff stated that But 10 (AR 136). According to Plaintiff, her employer was downsizing and, 11 when she told her employer she could not come back in, the employer 12 laid [Plaintiff] off. (AR 135). 13 14 A. Plaintiff s Medical History 15 16 1. ALJ Hearings 17 18 Plaintiff testified that her heart condition began in October 2002. 19 (AR 136). 20 required bypass surgery on October 24, 2002. 21 stated that after the surgery she had [l]ess chest pain [and it was] 22 easier 23 administrative hearing on October 21, 2004, Plaintiff noted that she 24 continued to have chest pain [o]nce a week and it lasted about a 25 half-an-hour. 26 and took nitroglycerine the pain goes away within about 10 minutes. 27 (AR 138). 28 get[s] tired afterward and rest[s] for about an hour. to Although Plaintiff s test results in 2001 were normal, she breathe. (Id.). (AR 137). As of (AR 136-37). the date of Plaintiff her first Plaintiff stated that when she felt chest pain After taking nitroglycerine Plaintiff testified that she 3 (Id.). A 1 treadmill test completed just prior to the first hearing indicated 2 that Plaintiff had no new blockages and Plaintiff s doctor wanted to 3 keep [her] on the nitroglycerine to see if that would keep the chest 4 pains away. (AR 148). 5 6 In 2004, Plaintiff stated that she has been diabetic for 14 years 7 and takes two different insulin tablets. (AR 139). Plaintiff further 8 noted that she suffers from hypothyroidism, but it is controlled with 9 medication. (AR 140). Plaintiff also suffers from elevated 10 cholesterol, but is controlling her cholesterol with diet. 11 Further, Plaintiff noted in 2004 that she has neck, shoulder, and lower 12 back pain and suffers from spondylolisthesis. 13 testified that the pain come[s] and go[es] and that her shoulder pain 14 was monthly, while her neck and lower back pain were daily. 15 Plaintiff took non-prescription Tylenol which gave her some relief. 16 (Id.). 17 when her back pain was severe. 18 walk for about fifteen minutes and also had discomfort when sitting. 19 (AR 141-42). 20 difficulty bending at the waist, so she usually squats down instead. 21 (AR 142). 22 [every] day depending on what . . . [she] tried to lift. 23 Plaintiff also takes Tylenol for her shoulder pain. (Id.). (Id.). Plaintiff (AR 141). Plaintiff stated that she had difficulty sitting and walking (Id.). She noted that she could only When Plaintiff has back pain, she stated that she has Plaintiff indicated that her shoulders hurt just about (Id.). (AR 143). 24 25 The medical expert ( ME ), Dr. Thomas Maxwell, present at 26 Plaintiff s first hearing stated that he disagreed with Plaintiff s 27 treating physician, who concluded that Plaintiff is in a permanent state 28 of incapacity. (AR 153). The ME stated: 4 1 I just reach a different opinion simply because I don t 2 really have a lot of details as to how they [INAUDIBLE] 3 opinion. 4 would be the ability to lift and /or carry both frequently 5 and occasionally 10 pounds, to sit for six hours with the 6 ability to stand at will to relieve discomfort, to stand 7 and/or walk for two hours, and then postural limitations as 8 far 9 occasional but no climbing of ladders, ropes, or scaffolds, as So my own opinion based on the record [INAUDIBLE] [INAUDIBLE] crouching, crawling, stooping to 10 other climbing to be occasional. 11 limitation 12 extremities to occasional. 13 far as excessive exposure to temperature and other things 14 such as humidity and [INAUDIBLE]. as far as reaching And then manipulative overhead in both upper And then just environmental as 15 16 (AR 153-54).1 17 tests were completed and that while Plaintiff did have moderate 18 cardiomegaly after her surgery, the condition was not ongoing. 19 154-55). Dr. Maxwell further noted that no pulmonary function (AR 20 21 At the February 13, 2007 hearing, Plaintiff testified that her 22 physical limitations, [her] heart, [her] back, [her] shoulders, [and] 23 her hands continued to prevent her from working. 24 noted that if she exert[s] herself too much by lifting, doing anything 25 heavy, pushing a vacuum sweeper too far, too long, [her] chest starts (AR 49). Plaintiff 26 27 1 The Court notes that several of the questions and answers between the ALJ and the ME at the October 21, 2004 hearing were deemed 28 inaudible. (See AR 155-56). 5 1 hurting. It feels like something s sitting on [Plaintiff s] chest. 2 (AR 50). Plaintiff most recently visited the emergency room in August 3 2006 because her chest pain did not stop after taking nitroglycerin at 4 home. 5 second hearing, her chest pain occurred monthly and prior to that 6 period the frequency of her chest pain was [a]bout every six months. 7 (AR to her 8 performance of more household chores and stress of the bills. (AR 9 53). (AR 51). 52). Plaintiff noted that starting six months before the Plaintiff attributed the increased frequency 10 11 Plaintiff also noted that after the surgery she was put on Lipitor 12 to lower [her] cholesterol, and one of the side effects [was] muscle 13 pain and it go to where [Plaintiff] couldn t walk or sit up, and they 14 did an MRI, and they found out that [Plaintiff has] arthritis in [her] 15 lower back. 16 down to [her] legs as a result of the arthritis. 17 noted that the severe pain occurs every three or four days depending 18 on how much she walks and sits. (Id.). 19 Plaintiff testified that the symptoms pertaining to her back pain have 20 become worse, and she feels less severe, like a soreness, pain daily. 21 (AR 56). (AR 55). She experiences a sharp pain that radiates (Id.). Plaintiff In addition to the severe pain, 22 23 Plaintiff also described a sharp pain in her left shoulder. 24 (Id.). The symptoms in her left shoulder first arose in 2000. (AR 57). 25 She noted that she has a torn ligament in that shoulder. 26 Plaintiff testified that she has limitations reaching with her left arm, 27 reaching out in front of her, to the side, and behind her, as well as 28 reaching overhead. (AR 57). Plaintiff also testified as to having pain 6 (AR 56). 1 emanating from her hands. 2 95. 3 her left hand, as well as one procedure to her right hand in 1993. 4 (Id.). Additionally, Plaintiff has also been taking insulin, Glucophage 5 and Glyburide, since 2000 for diabetes. (AR 58). She had carpal tunnel surgery in 94 and Plaintiff noted that she underwent two procedures on (AR 58-59). 6 7 Because of the Plaintiff s symptoms resulting from her heart and 8 back, she testified that she requires periods of rest during the day. 9 (AR 59). Plaintiff noted that she lies down, twice a day, (id.), for 10 [a]bout an hour. (AR 60). Plaintiff also noted that over the course 11 of the past year, the need to lie down is more frequent now than what 12 it was. (Id.). Her overall energy levels are lower than what it used 13 to be and there are periods of time she feels fatigued. 14 Plaintiff testified that [t]rying to do too much housework, or take 15 care of [her] daughter, cause the fatigue. 16 does not wear a back brace of any sort and attributes a weight loss from 17 250 pounds at the time of the August 2001 hearing to 180 pounds during 18 the February 2007 hearing to a cut down on eating, and trying to do a 19 lot more walking. (Id.). (Id.). Finally, Plaintiff (AR 65). 20 21 2. Treatment Records 22 23 On her Disability Report, Plaintiff stated that a car accident 24 in March of 2001 had caused her to stop working. (AR 210-19). 25 of her worker s compensation claim, Plaintiff visited Dr. Ralph Steiger 26 in December 2001. 27 had a magnetic resonance imaging (MRI) scan of her cervical spine and (AR 423). At the request of Dr. Steiger, 28 7 As part Plaintiff 1 left scapula, which showed a two to three millimeter disc bulge at C5-6 2 and a normal left scapula. (AR 28, 423-29). 3 4 Later, in October 2002, after complaining of chest pains, Plaintiff 5 was referred to Dr. Dandekar at Citrus Valley Medical Center for 6 coronary bypass graft surgery. 7 2003, 8 Ambulatory. 9 and July 2003 also confirmed that Plaintiff was feeling well. 10 doctors noted that (AR 301-03, 455-57). Plaintiff No chest pains. (AR 359). was Feeling By January of well. Active. Further reports in April 2003 (AR 346, 355, 357). 11 12 In October 2003, Tina Moy, a non-physician State Agency Disability 13 Analyst, reviewed Plaintiff s prior medical records and determined that 14 Plaintiff could lift or carry twenty pounds occasionally, and ten pounds 15 frequently. 16 stand or walk for a total of about six hours in an eight-hour workday. 17 (AR 18 Plaintiff s treating physician, found Plaintiff incapacitated from work 19 because of coronary artery disease status post coronary artery bypass 20 graft, diabetes mellitus, and hypothyroidism. 21 concluded that the date for this incapacity was October 2002, and that 22 this incapacity was permanent. 229-35, (AR 223-38). 382). Ms. Moy also concluded that Plaintiff could Later, in April 2004, Dr. Bhupinder (AR 420). Bains, He also (Id.). 23 24 On August 17, 2004, Plaintiff returned to Dr. Gadgil, who had 25 examined Plaintiff before her surgery. (AR 489-91). In contrast to Dr. 26 Bains s findings, Dr. Gadgil determined that Plaintiff s overall cardiac 27 status was normal and advised her to continue her current activities 28 and medications. (AR 490). In a later visit to Dr. Gadgil in September 8 1 2004, he also noted that Plaintiff s echocardiogram was unremarkable. 2 (Id.). 3 was no evidence of hemodynamically significant coronary artery disease 4 and no significant perfusion abnormality. 5 discovered 6 ventricular size, global function, and ejection fraction at rest. 7 (Id.). 8 asymptomatic and hemodynamically stable. After Plaintiff underwent a stress test in October 2004, there in that stress test that (AR 430). Plaintiff It was also had normal left Further, in January 2005, Dr. Roy Kaku, assessed her as (AR 503). 9 10 Plaintiff also had an x-ray taken of her lumbar spine after 11 complaining of back pain in May 2003. 12 slight anterolisthesis of L5 on S1 with a subtle irregularity suggestive 13 of a pars defect. (AR 28, 552-54). 14 diagnosed spondylolisthesis 15 spondylolisthesis of L5 on S1. with (AR 552). The x-ray showed very In September 2003, Plaintiff was at L5 with first degree (AR 28, 372). 16 17 3. Consultative Sources 18 19 On September 3, 2003, Dr. Sahniah Lambert performed a comprehensive 20 Internal Medical Evaluation at the request of the Department of Social 21 Services. (AR 365). Based on Plaintiff s physical examination with Dr. 22 Lambert and Plaintiff s medical history, Dr. Lambert recommended that 23 Plaintiff be limited to pushing, pulling, lifting, and carrying 20 24 pounds occasionally and 10 pounds frequently. 25 also recommended that [s]tanding, walking and sitting can be performed 26 without restriction, and [p]ostural activities, including bending, 27 kneeling, stooping, crawling, and crouching, can too be performed 28 without restriction. (Id.). (AR 369). Dr. Lambert Additionally, Dr. Lambert concluded that 9 1 [a]ctivities that require agility, such as climbing ladders, working 2 on uneven terrain, or working at heights, should be avoided because of 3 the known history of coronary disease. (Id.). 4 5 Dr. Sam Mouazzen also conducted an evaluation of Plaintiff on 6 October 25, 2006. (AR 557-59). 7 concluded that Plaintiff showed basically no evidence of cardiac 8 decompression, and that [i]n spite of her symptoms, the patient 9 appears to be able to do her usual activities quite well without any (AR 559). Based on that evaluation, Dr. Mouazzen 10 limitations. In sum, Dr. Mouazzen recommended that 11 Plaintiff s symptoms are not disabling. (Id.). 12 13 Dr. Mouazzen later conducted another examination of Plaintiff on 14 March 14, 2007 for the Department of Social Services. (AR 590-92). 15 Although Dr. Mouazzen did not make any specific recommendations as to 16 Plaintiff s symptoms, the ALJ examined Dr. Mouazzen s March 2007 report. 17 (AR 24). 18 from his October 2006 report, and determined that the narrative 19 contained in Dr. Mouazzen s March 2007 report, as supported by his 20 October 2006 report, was internally consistent and correlated with the 21 [Plaintiff s] medical history. The ALJ believed Dr. Mouazzen found no significant change (AR 24, 592). 22 23 4. Vocational Expert Testimony 24 25 Dr. Martin Broadwin, a vocational expert ( VE ), testified at 26 Plaintiff s 2001 hearing. (AR 157-62). 27 Plaintiff could not perform any of her past work but could perform other 28 sedentary semi-skilled occupations. (AR 158). 10 Dr. Broadwin testified that He testified that based 1 on the limitations pertaining to Plaintiff, she could perform a job 2 where she could sit for six hours out of eight but would have to stand 3 up to relieve some discomfort. 4 order clerk, routing clerk, and referral clerk. 5 Dr. Broadwin testified there existed 1,150 order clerk jobs in 6 southern California, 1,100 routing clerk jobs and 900 referral 7 clerk jobs in the southern California region. 8 testified that based on limitations pertaining to Plaintiff, she could 9 also perform sedentary unskilled jobs, such as product marker or 10 labeler, unskilled inspection clerk or inspector, and product folder. 11 (AR 34, 160). 12 marker or labeler jobs in this region of the country, 13 unskilled inspection clerk or inspector jobs and 2,500 product folder 14 jobs in this region of the country. (AR 160). The VE cited jobs such as, (AR 158-59). (AR 159). Further, He also Dr. Broadwin noted that there existed 2,300 product 5,000 (AR 160). 15 16 IV. 17 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 18 19 To qualify for disability benefits, a claimant must demonstrate 20 a medically determinable physical or mental impairment that prevents him 21 from engaging in substantial gainful activity2 and that is expected to 22 result in death or to last for a continuous period of at least twelve 23 months. 24 42 U.S.C. § 423(d)(1)(A)). 25 incapable of performing the work he previously performed and incapable Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing The impairment must render the claimant 26 27 2 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay 28 or profit. 20 C.F.R. §§ 404.1510, 416.910. 11 1 of performing any other substantial gainful employment that exists in 2 the national economy. 3 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 4 5 6 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. § 416.920. The steps are: 7 8 (1) 9 activity? 10 11 Is the claimant presently engaged in substantial gainful If so, the claimant is found not disabled. If not, proceed to step two. (2) Is the claimant s impairment severe? 12 claimant is found not disabled. 13 If not, the three. 14 (3) If so, proceed to step Does the claimant s impairment meet or equal one of a 15 list of specific impairments described in 20 C.F.R. Part 16 404, Subpart P, Appendix 1? 17 found disabled. 18 (4) If so, the claimant is If not, proceed to step four. Is the claimant capable of performing his past work? 19 so, the claimant is found not disabled. 20 If to step five. 21 (5) If not, proceed Is the claimant able to do any other work? 22 claimant is found disabled. 23 If not, the If so, the claimant is found not disabled. 24 25 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 26 949, 953-54 (9th Cir. 2001) (citations omitted); 20 C.F.R. § 416.920(b)- 27 (g)(1). 28 12 1 The claimant has the burden of proof at steps one through four, and 2 the Commissioner has the burden of proof at step five. 3 F.3d at 953-54. Additionally, the ALJ has an affirmative duty to assist 4 the claimant in developing the record at every step of the inquiry. Id. 5 at 954. If, at step four, the claimant meets his burden of establishing 6 an inability to perform past work, the Commissioner must show that the 7 claimant can perform some other work that exists in significant 8 numbers in the national economy, taking into account the claimant s 9 residual functional capacity ( RFC ),3 age, Bustamante, 262 education, and work 10 experience. Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 11 20 C.F.R. §§ 404.1520(f)(1), 416.920(f)(1). 12 by the testimony of a vocational expert or by reference to the Medical- 13 Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, 14 Appendix 2 (commonly known as the Grids ). 15 F.3d 1157, 1162 (9th Cir. 2001) (citing Tackett). 16 both exertional (strength-related) and nonexertional limitations, the 17 Grids are inapplicable and the ALJ must take the testimony of a 18 vocational expert. 19 (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988)). The Commissioner may do so Osenbrock v. Apfel, 240 When a claimant has Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000) 20 21 V. 22 THE ALJ S DECISION 23 24 The ALJ employed the five-step sequential evaluation process and 25 concluded that Plaintiff was not disabled under the Social Security Act. 26 27 3 Residual functional capacity is what [one] can still do despite [his] limitations and represents an assessment based upon all 28 of the relevant evidence. 20 C.F.R. §§ 404.1545(a), 416.945(a). 13 1 (AR 23-35). At the first step, the ALJ found that Plaintiff had not 2 engaged in substantial gainful activity since March 30, 2001. 3 At step two, the ALJ found that Plaintiff had a severe combination of 4 impairments including: (AR 26). 5 6 [N]on-insulin-dependent diabetes 7 (controlled); coronary artery disease, status post coronary 8 artery bypass graft done in October 2002; obesity (improved); 9 hypothyroidism (controlled); mellitus; hypertension osteoarthritis of the 10 lumbosacral spine; osteoarthritis of the right shoulder; 11 hyperlipidemia; and benign breast masses. 12 13 (AR 27). 14 at step two did not meet or medically equal a listed impairment. 15 At 16 determine Plaintiff s RFC. Dr. Lambert, a consultative examiner, found 17 Plaintiff could stand, walk and sit without restriction. 18 369). 19 the ALJ decided to place greater restrictions on Plaintiff s RFC. 20 27-33). step At the third step, the ALJ found that the severe impairments four, the ALJ considered Plaintiff s medical (Id.) history to (AR 30, However, based on the testimony of medical expert Dr. Maxwell, (AR As such, the ALJ found that Plaintiff had the following RFC: 21 22 [T]o lift or carry ten pounds occasionally and frequently. 23 She can stand or walk for a total of two hours in an eight- 24 hour workday and sit for a total of six hours in an eight- 25 hour workday, with the opportunity to stand at will. 26 must never climb ladders, ropes, or scaffolds, but she may 27 occasionally climb ramps and stairs. 28 balance, stoop, kneel, crouch, 14 and She She can occasionally crawl. She can 1 occasionally reach overhead. She must not have excessive 2 exposure to temperature extremes, humidity, and irritants. 3 She should also avoid more than average levels of stress. 4 5 (AR 28). At step five, the 6 relatively young age, 47, high school education, past work experience, 7 and RFC, she could perform jobs existing in significant numbers in the 8 national economy. 9 include, 1) Order Clerk; 2) Routing Clerk; and 3) Referral Clerk. (AR 34). ALJ found that based on Plaintiff s Semi-skilled jobs Plaintiff could perform 10 (Id.). Sedentary, unskilled jobs Plaintiff could perform include, 1) 11 Product Marker; 2) Inspector; and 3) Product Folder. 12 relied on the testimony of the vocational expert, Dr. Broadwin, to make 13 this determination. 14 perform other occupations with jobs existing in significant numbers in 15 the national economy, he concluded that Plaintiff is not disabled. 16 34-35). (Id.). (Id.). The ALJ Because the ALJ found that Plaintiff can (AR 17 18 VI. 19 STANDARD OF REVIEW 20 21 Under 42 U.S.C. § 405(g), a district court may review the 22 Commissioner s decision to deny benefits. 23 Commissioner s decision when the ALJ s findings are based on legal error 24 or are not supported by substantial evidence in the record as a whole. 25 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (citing 26 Tackett, 180 F.3d at 1097); Smolen v. Chater, 80 F.3d 1273, 1279 (9th 27 Cir. 1996) (citing Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). 28 15 The court may set aside the 1 Substantial evidence is more than a scintilla, but less than a 2 preponderance. 3 112 F.3d 1064, 1066 (9th Cir. 1997)). 4 a reasonable person might accept as adequate to support a conclusion. 5 Id. (citing Jamerson, 112 F.3d at 1066; Smolen, 80 F.3d at 1279). 6 determine whether substantial evidence supports a finding, the court 7 must consider the record as a whole, weighing both evidence that 8 supports 9 conclusion. and Reddick, 157 F.3d at 720 (citing Jamerson v. Chater, evidence that It is relevant evidence which detracts from the To [Commissioner s] Aukland, 257 F.3d at 1035 (quoting Penny v. Sullivan, 2 10 F.3d 953, 956 (9th Cir. 1993)). If the evidence can reasonably support 11 either affirming or reversing that conclusion, the court may not 12 substitute its judgment for that of the Commissioner. Reddick, 157 F.3d 13 at 720-21 (citing Flaten v. Sec y, 44 F.3d 1453, 1457 (9th Cir. 1995)). 14 15 VII. 16 DISCUSSION 17 18 Plaintiff contends the ALJ erred because the ALJ improperly relied 19 on the Vocational Expert testimony to conclude that Plaintiff could 20 perform work other than her past relevant work. 21 of Plaintiff s Complaint ( Complaint Memo. ) at 7). 22 Plaintiff contends that the Vocational Expert impermissibly assumed a 23 capacity that neither ALJ decision affirmed found to exist. 24 For the reasons discussed below, the Court disagrees with Plaintiff s 25 contentions and concludes that the ALJ s decision should be AFFIRMED. 26 27 28 16 (Memorandum in Support Specifically, (Id.). 1 A. The ALJ Properly Relied On The Vocational Expert s Testimony 2 Because the Vocational Expert Did Not Assume A Capacity In Excess 3 Of The RFC 4 5 The hypothetical an ALJ poses to a vocational expert, which 6 derives from the RFC, must set out all limitations and restrictions of 7 a particular claimant. 8 F.3d 685, 690 (9th Cir. 2009) (internal quotation marks omitted). 9 However, [a]n ALJ is free to accept or reject restrictions in a 10 hypothetical question that are not supported by substantial evidence. 11 Osenbrock v. Apfel, 240 F.3d 1157, 1664-65 (9th Cir. 2001). Valentine v. Comm r of Soc. Sec. Admin., 574 12 13 Here, the ALJ posed the following hypothetical question to the VE: 14 15 Now, the vocational profile that we have here is an 16 individual who is 42 years old [INAUDIBLE], high-school 17 graduate, plus additional training as she described earlier 18 and is no longer employed, work [INAUDIBLE] described. 19 assume first that she has [INAUDIBLE].4 Now, 20 21 (AR 157). Based on this hypothetical, the VE testified that such a 22 Plaintiff would not be able to perform the occupation of motor vehicle 23 dispatcher, which was Plaintiff s previous position. However, the VE 24 25 26 4 It is unfortunate that labeled inaudible. However, 27 entirety, the Court finds that 28 material to the Court s review of did not seek a remand based upon certain words in the transcript are after reviewing the record in its the defects in the record are not Plaintiff s claim. Notably, Plaintiff defects in the record. 17 1 noted that Plaintiff would have transferable skills in clerical areas, 2 such as: 3 4 [C]ommunication and 5 knowledge of the [INAUDIBLE] vehicles, ability to do the 6 paper work and clerical activities involved in the vehicle s 7 [INAUDIBLE] 8 [INAUDIBLE] direct activities of drivers and communicate a 9 schedule, maintaining an orderly work flow and certainly in 10 this case a skill would be reacting quickly and appropriately 11 to emergency situations. and organizational personnel. I skills believe and abilities, I m sorry - 12 13 (AR 158). Based on the above transferable skills, the VE testified such 14 a Plaintiff would be able to perform very basic semi-skilled jobs and 15 sedentary unskilled occupations. 16 clarified 17 significant overhead or over shoulder work. 18 that they did not. 19 to consider the limitation that Plaintiff could not sit for six hours 20 out 21 [INAUDIBLE]. 22 account the limitation and also noted that [a]s long as the individual 23 could sit for about 30 minutes and then perhaps stand to relieve plain 24 or discomfort and continue working and then sit again, the Plaintiff 25 could perform occupations within the local and national economies. 26 (Id.). of that eight the but jobs (Id.). would (AR 160). stated (AR 159-60). by the VE The ALJ specifically did not (AR 159). require any The VE stated The ALJ further clarified that the VE had have to stand up to relieve discomfort The VE confirmed that he had taken into 27 28 18 1 As noted above, the VE testified that Plaintiff could perform basic 2 semi-skilled and sedentary 3 Specifically, the VE mentioned that Plaintiff has the transferable 4 skills to perform the occupations of an order clerk with 1,150 jobs in 5 southern California, a routing clerk with 1,100 jobs, and a referral 6 clerk with approximately 900 jobs existing in the southern California 7 region. 8 perform the sedentary unskilled occupations of product marker or labeler 9 with 2,300 jobs in the region, an (AR 159). unskilled positions. (AR 159-60). Further, the VE testified that Plaintiff could unskilled inspection clerk or 10 inspector with 5,000 jobs, and a product folder with 2,500 jobs existing 11 in southern California. (AR 160). 12 13 Plaintiff does not challenge the ALJ s RFC finding. However, 14 Plaintiff does contend that the VE assumed a capacity not contained in 15 the hypothetical question. 16 Plaintiff argues that the VE assumed Plaintiff would always have the 17 ability to persist in a seated position for about 30 minutes or that the 18 variable and idiosyncratic nature of a pain pattern would not otherwise 19 disrupt the sedentary nature of the work identified. (Complaint Memo. at 7). Specifically, (Id.). 20 21 Plaintiff argues that the ALJ never affirmatively found that 22 capacity to exist. 23 specifically 24 opportunity to stand at will. 25 [s]tanding at will, when physical pain or discomfort demands a change 26 of position, is far different than a capacity to sit for at least 30 27 minutes, continuing to work while standing, and then sitting again, the 28 process of which taking an unspecified period of time. found (Id.). that Instead, [Plaintiff] 19 Plaintiff would (Id.). argues required the ALJ [sic] the According to Plaintiff, (Id.). 1 However, the Court disagrees with Plaintiff s assertion that the VE 2 assumed a capacity not contained in the ALJ s hypothetical. 3 4 Both the ALJ s assessment of Plaintiff s RFC and the VE s testimony 5 regarding Plaintiff s ability to perform occupations in the local and 6 national economies are consistent with each other. 7 Barnhart, 427 F.3d 1211, 1217-18 (9th Cir. 2005) (holding proper the 8 ALJ s reliance on testimony the VE gave in response to a hypothetical 9 when the hypothetical posed by the ALJ contained all of the limitations 10 that the ALJ found credible and supported by substantial evidence in the 11 record). 12 asked to define at will. (AR 162). The VE testified that at will can 13 be described as at any point in time in which the individual feels the 14 need to stand and to sit back down again. 15 VE s testimony that based on the limitations incorporated in the ALJ s 16 hypothetical, the VE accounted for standing at will when concluding 17 Plaintiff 18 reasonably found the VE s interpretation of the RFC consistent with the 19 ALJ s assessment. See Bayliss v. During cross-examination by Plaintiff s counsel, the VE was could perform alternative (Id.). It is clear from the occupations. Thus, the ALJ 20 21 B. Even If The Vocational Expert Assumed A Capacity In Excess Of The 22 RFC, Any Error Was Harmless Because Plaintiff Could Still Perform 23 The Semi-Skilled Jobs Of Order Clerk, Routing Clerk, And Referral 24 Clerk 25 26 The Ninth Circuit has held that an ALJ s error is harmless and no 27 remand is required if the outcome would have been the same, absent the 28 error. See Carmickle v. Comm r, 533 F.3d 1155, 1162 (9th Cir. 2008) (if 20 1 ALJ s error was inconsequential to the ultimate nondisability 2 determination, no remand required); Burch v. Barnhart, 400 F.3d 676, 679 3 (9th Cir. 2005) ( A decision of the ALJ will not be reversed for errors 4 that are harmless. ). 5 could still perform the semi-skilled jobs of order clerk, routing clerk, 6 and referral clerk. Here, any error was harmless because Plaintiff Thus, no remand is required. 7 8 Plaintiff contends that the ALJ s finding that Plaintiff needs to 9 stand at will, (AR 79), precludes Plaintiff from performing the 10 unskilled sedentary jobs of product marker, inspection clerk, and 11 product folder, as opined by the VE. 12 Reply ) at 3-5); see also Social Security Ruling (SSR) 83-12, 1983 WL 13 31253, at *4 (S.S.A. 1983) ( Unskilled types of jobs are particularly 14 structured so that a person cannot ordinarily sit or stand at will. ). 15 However, based on the VE s testimony, Plaintiff does have transferable 16 specific vocational preparation ( SVP ) level five skills obtained 17 during Plaintiff s past relevant work. 18 communication and organizational skills, a knowledge of vehicles, the 19 ability to do paperwork and clerical activities, the ability to direct 20 the activities of drivers and communicate a schedule, and the ability 21 to maintain an orderly work flow. 22 to meet the requirements of other semi-skilled jobs which allow the 23 Plaintiff the opportunity to stand at will. 24 (SSR) 82-41, 1982 WL 31389, at *2 (S.S.A. 1982). (Reply in Support of Complaint (AR 33). (Id.). Plaintiff acquired Those skills can be applied See Social Security Ruling 25 26 The VE testified that Plaintiff has the skill set necessary to 27 perform very basic semi-skilled jobs requiring SVP s of three or four, 28 such as order clerk, routing clerk, and referral clerk. 21 (AR 159). 1 According to the Dictionary of Occupational Titles ( DOT ), jobs such 2 as order clerk, routing clerk, and referral clerk, can all be performed 3 by Plaintiff requiring the opportunity to stand at will. 4 clerk s main duties include: An order 5 6 Process[ing] orders for material or merchandise received by 7 mail, telephone, or personally from customer or company 8 employee, manually or using computer or calculating machine: 9 Edit[ing] orders received customer of for unit price and prices, nomenclature. 10 Inform[ing] shipping date, 11 anticipated delays, and any additional information needed by 12 customer, using mail or telephone. Writ[ing] or types order 13 form, or enters data into computer, to determine total cost 14 for customer. 15 according to expected delivery date. Record[ing] or files copy of orders received 16 17 Dictionary of Occupational Titles, 249.362-026. 18 A routing clerk s main duties include: 19 20 Determin[ing] truck routes involved and issu[ing] route slips 21 to 22 general 23 organization: 24 review[ing] street maps to determine appropriate route, based 25 on type and quantity of merchandise pledged and location of 26 donor. 27 telephone and mail inquiries and complaints from donors 28 concerning pickups; and advis[ing] drivers of problems or drivers to pick up merchandise donated for Review[ing] Issu[ing] route clothing, furniture, vocational pre-sorted slips 22 to rehabilitation route drivers. and slips and Answer[ing] 1 reschedules pickup. Occasionally tak[ing] pickup orders. 2 Prepar[ing] truck-collection 3 information from drivers, and keep[ing] attendance, safety, 4 and maintenance records. daily report based on 5 6 Dictionary of Occupational Titles, 249.367-070. A referral clerk s main 7 duties include: 8 9 Compil[ing] and record[ing] information about temporary job 10 openings and refer[ring] qualified applicants from register 11 of temporary help agency: Answer[ing] call from hospital, 12 business, or other type of organization requesting temporary 13 workers and obtain[ing] and record[ing] job requirements. 14 Review[ing] records to locate registered workers who match 15 job requirements and are available for scheduled shift. 16 Notif[ying] selected 17 record[ing] referral 18 Sort[ing] mail, fil[ing] records, and perform[ing] other 19 clerical duties. workers of information job availability on agency and records. 20 21 Dictionary of Occupational Titles, 205.367-062. 22 position noted above, as defined by the DOT, do not prevent Plaintiff 23 from performing the occupation, even if she requires the ability to 24 stand at will to relieve discomfort. 25 work skills from past relevant work that are transferable to other 26 occupations with jobs existing in significant numbers in the local and 27 national economies, Plaintiff is not disabled. 28 23 The duties for each Because Plaintiff has acquired 1 In sum, the Court concludes that the VE assumed a capacity that is 2 consistent with the ALJ s assessment of Plaintiff s RFC and the ALJ 3 therefore properly relied on the VE s testimony. 4 VE assumed a capacity in excess of Plaintiff s RFC, any error was 5 harmless because Plaintiff could still perform the semi-skilled jobs of 6 order clerk, routing clerk, and referral clerk. 7 required. Moreover, even if the Thus, no remand is 8 9 VIII. 10 CONCLUSION 11 12 Consistent with the foregoing, and pursuant to sentence four of 42 13 U.S.C. § 405(g),5 IT IS ORDERED that judgment be entered AFFIRMING the 14 decision of the Commissioner. 15 the Court serve copies of this Order and the Judgment on counsel for 16 both parties. IT IS FURTHER ORDERED that the Clerk of 17 18 DATED: September 12, 2011. 19 /S/ ______________________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 5 This sentence provides: The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment 28 affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. 27 24 1 THIS MEMORANDUM IS NOT INTENDED FOR PUBLICATION NOR IS INTENDED TO 2 BE INCLUDED IN OR SUBMITTED TO ANY ONLINE SERVICE SUCH AS WESTLAW OR 3 LEXIS. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25

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