Humberto Palma v. Michael J Astrue, No. 2:2012cv09123 - Document 17 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. (twdb)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 HUMBERTO PALMA, 10 Plaintiff, 11 vs. 12 13 CAROLYN W. COLVIN, Acting Commissioner of Social Security,1 14 Defendant. 15 ) Case No. CV 12-9123-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) AFFIRMING THE COMMISSIONER ) ) ) ) ) ) ) 16 17 I. PROCEEDINGS 18 Plaintiff seeks review of the Commissioner s final decision 19 denying his application for Social Security disability insurance 20 benefits ( DIB ) and supplemental security income benefits 21 ( SSI ). The parties consented to the jurisdiction of the 22 undersigned U.S. Magistrate Judge pursuant to 28 U.S.C. § 636(c). 23 This matter is before the Court on the parties Joint 24 Stipulation, filed August 30, 2013, which the Court has taken 25 26 1 On February 14, 2013, Colvin became the Acting 27 Commissioner of Social Security. Pursuant to Federal Rule of Civil Procedure 25(d), the Court therefore substitutes Colvin for 28 Michael J. Astrue as the proper Respondent. 1 1 under submission without oral argument.2 For the reasons 2 discussed below, the Commissioner s decision is affirmed and this 3 action is dismissed. 4 II. BACKGROUND 5 Plaintiff was born on January 12, 1959. 6 completed high school. (AR 204.) (AR 169, 173.) He Plaintiff s previous work was 7 collecting and recycling scrap metal, glass, cans, and plastic 8 bottles. 9 (AR 56-57, 200, 209-10.) On March 31, 2008, Plaintiff filed applications for DIB and 10 SSI. (AR 85-86, 169-77.) He alleged that he had been unable to 11 work since March 18, 2008, because of [o]pen heart surgery, high 12 cholesterol, high blood pressure, [and] diabetes. (AR 199.) 13 After Plaintiff s applications were denied, he requested a 14 hearing before an Administrative Law Judge. 15 (AR 96.) A hearing was held on May 12, 2010, at which Plaintiff, who 16 was represented by counsel, testified, as did a vocational expert 17 ( VE ).3 (AR 52-78.) In a written decision issued August 10, 18 2010, the ALJ determined that Plaintiff was not disabled. 19 30-38.) (AR On August 8, 2012, the Appeals Council denied review. 20 21 22 23 24 25 2 Throughout the joint stipulation, Plaintiff s counsel refers to Plaintiff by different wrong names and the wrong gender. (See, e.g., J. Stip. at 4, 7, 11 (referring to Plaintiff as Ms. Palma ), 5 (twice referring to Plaintiff as Jessie Aguirre ), 9 (referring to Plaintiff as Ms. Mendez and Ms. Aguirre ).) Such sloppiness does not instill confidence in counsel s arguments. The Court has endeavored, however, not to factor the presentation of the joint stipulation into its analysis. 26 3 A hearing was first held on January 19, 2010, but the 27 ALJ ended it without taking any testimony after Plaintiff requested a postponement so he could obtain counsel. (AR 79-84.) 28 2 1 (AR 7-9.) This action followed. 2 III. STANDARD OF REVIEW 3 Pursuant to 42 U.S.C. § 405(g), a district court may review 4 the Commissioner s decision to deny benefits. The ALJ s findings 5 and decision should be upheld if they are free of legal error and 6 supported by substantial evidence based on the record as a whole. 7 § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 8 1420, 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 F.3d 9 742, 746 (9th Cir. 2007). Substantial evidence means such 10 evidence as a reasonable person might accept as adequate to 11 support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter 12 v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 13 a scintilla but less than a preponderance. It is more than Lingenfelter, 504 14 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 15 882 (9th Cir. 2006)). To determine whether substantial evidence 16 supports a finding, the reviewing court must review the 17 administrative record as a whole, weighing both the evidence that 18 supports and the evidence that detracts from the Commissioner s 19 conclusion. 20 1996). Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. If the evidence can reasonably support either affirming 21 or reversing, the reviewing court may not substitute its 22 judgment for that of the Commissioner. Id. at 720-21. 23 IV. THE EVALUATION OF DISABILITY 24 People are disabled for purposes of receiving Social 25 Security benefits if they are unable to engage in any substantial 26 gainful activity owing to a physical or mental impairment that is 27 expected to result in death or which has lasted, or is expected 28 to last, for a continuous period of at least 12 months. 3 42 1 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 2 (9th Cir. 1992). 3 A. 4 The ALJ follows a five-step sequential evaluation process in The Five-Step Evaluation Process 5 assessing whether a claimant is disabled. 20 C.F.R. 6 §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 7 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). In the first 8 step, the Commissioner must determine whether the claimant is 9 currently engaged in substantial gainful activity; if so, the 10 claimant is not disabled and the claim must be denied. 11 §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not 12 engaged in substantial gainful activity, the second step requires 13 the Commissioner to determine whether the claimant has a severe 14 impairment or combination of impairments significantly limiting 15 his ability to do basic work activities; if not, a finding of not 16 disabled is made and the claim must be denied. 17 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a 18 severe impairment or combination of impairments, the third step 19 requires the Commissioner to determine whether the impairment or 20 combination of impairments meets or equals an impairment in the 21 Listing of Impairments ( Listing ) set forth at 20 C.F.R., Part 22 404, Subpart P, Appendix 1; if so, disability is conclusively 23 presumed and benefits are awarded. 24 416.920(a)(4)(iii). §§ 404.1520(a)(4)(iii), If the claimant s impairment or combination 25 of impairments does not meet or equal an impairment in the 26 Listing, the fourth step requires the Commissioner to determine 27 whether the claimant has sufficient residual functional capacity 28 4 1 ( RFC )4 to perform his past work; if so, the claimant is not 2 disabled and the claim must be denied. 3 416.920(a)(4)(iv). §§ 404.1520(a)(4)(iv), The claimant has the burden of proving that 4 he is unable to perform past relevant work. 5 1257. Drouin, 966 F.2d at If the claimant meets that burden, a prima facie case of 6 disability is established. Id. If that happens or if the 7 claimant has no past relevant work, the Commissioner then bears 8 the burden of establishing that the claimant is not disabled 9 because he can perform other substantial gainful work available 10 in the national economy. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 11 That determination comprises the fifth and final step in the 12 sequential analysis. §§ 404.1520, 416.920; Lester, 81 F.3d at 13 828 n.5; Drouin, 966 F.2d at 1257. 14 B. 15 At step one, the ALJ found that Plaintiff had not engaged in The ALJ s Application of the Five-Step Process 16 any substantial gainful activity since March 18, 2008. (AR 32.) 17 At step two, the ALJ concluded that Plaintiff had the severe 18 impairments of coronary artery disease (status post bypass) and 19 diabetes mellitus. (Id.) At step three, the ALJ determined 20 that Plaintiff s impairments did not meet or equal any of the 21 impairments in the Listing. (AR 33.) At step four, the ALJ 22 found that Plaintiff had the RFC to perform the full range of 23 24 25 26 4 RFC is what a claimant can do despite existing 27 exertional and nonexertional limitations. 20 C.F.R. §§ 404.1545, 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th 28 Cir. 1989). 5 1 light work.5 (AR 34-37.) Based on the VE s testimony, the ALJ 2 concluded that Plaintiff was able to perform his past relevant 3 work as a laborer, salvage, DOT 929.687-022, 1991 WL 688172, as 4 generally and actually performed. (AR 37.) 5 determined that Plaintiff was not disabled. Accordingly, the ALJ (AR 37-38.) 6 V. DISCUSSION 7 Plaintiff contends that the ALJ erred in (1) finding that 8 his previous job was past relevant work and (2) determining 9 that he could perform his past relevant work as actually and 10 generally performed. (J. Stip. at 4-11.) 11 A. 12 In an undated disability report, Plaintiff stated that from Background 13 2002 to June 2007, he was self-employed as a recycler, 14 collect[ing] cans and plastic bottles and recycl[ing] them. 15 (AR 200.) In that job, he had to lift and carry plastic bags 16 with bottles and cans ; he lifted 10 pounds frequently, which 17 was defined as from 1/3 to 2/3 of the workday, and 50 pounds at 18 most. (Id.) Plaintiff stated that he used machines, tools, or 19 equipment and technical knowledge or skills as part of his job 20 and that he stopped working in June 2007 because he did not have 21 22 23 24 25 26 27 28 5 Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. 20 C.F.R. §§ 404.1567(b), 416.967(b). The regulations further specify that [e]ven though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. Id. A person capable of light work is also capable of sedentary work, which involves lifting no more than 10 pounds at a time and occasionally lifting or carrying [small articles] and may involve occasional walking or standing. §§ 404.1567(a)-(b); 416.967(a)-(b). 6 1 the necessary transportation to continue the job. (AR 199.) 2 Plaintiff stated that he worked eight hours a day, five days a 3 week, and earned $240 a month. 4 (AR 200.) On April 28, 2008, Plaintiff s daughter, Mirza Palma, 5 completed a work-history report stating that Plaintiff had worked 6 as a junk collector from 2002 to 2007. (AR 209-16.) Palma 7 wrote that in that job, Plaintiff lifted 6 f[oot] metal pieces, 8 cans, and plastics and used machines, tools, or equipment and 9 technical knowledge or skills. (AR 210.) She checked boxes 10 indicating that Plaintiff frequently lifted 50 [pounds] or 11 more and that the heaviest weight he lifted was 50 [pounds]. 12 (Id.) Palma stated that Plaintiff worked 10 to 12 hours a day, 13 six days a week, and earned $50 a day. (Id.) A Social Security 14 earnings summary dated June 30, 2009, showed that Plaintiff 15 earned $1954 in 2002, $10,547 in 2003, $10,898 in 2004, $11,632 16 in 2005, and $8035 in 2006. 17 (AR 178.) At the May 12, 2010 hearing, Plaintiff testified that his 18 past work involved go[ing] into the trash cans before the trash 19 can was empt[ied] and finding plastic, glass, and aluminum to 20 recycle. (AR 57.) Plaintiff testified that the most he would 21 lift would be a bag of recyclable material weighing about 12 22 pounds; he said he could not lift more than that because [a]ll 23 of my life I ve always had back problems. (AR 57-58.) After 24 the materials were collected, Plaintiff s friend, who had a van, 25 took them to a recycling plant, and he and Plaintiff split the 26 money he received. (AR 57, 73.) When questioned by the VE, 27 Plaintiff confirmed that he did not participate in the loading or 28 unloading of materials. (AR 73.) 7 1 The VE testified that Plaintiff had previously worked as a 2 laborer, salvage, which carried a DOT code of 929.687-022 and 3 was generally regarded as a medium exertional level job with a 4 specific vocational preparation level of two.6 (AR 74.) The VE 5 further testified that someone of Plaintiff s age with his 6 education and vocational history and who could perform a full 7 range of light work would be able to perform the laborer job as 8 Plaintiff actually performed it but not as classified, 9 presumably referring to the DOT description. 10 (Id.) In his decision, the ALJ found that Plaintiff retained the 11 RFC to perform a full range of light work. (AR 34.) The ALJ 12 found that Plaintiff could perform his past relevant work as a 13 laborer, salvage, DOT 929.687-022, 1991 WL 688172, which the 14 ALJ noted was medium work but performed at light. (AR 37.) 15 The ALJ found that [t]estimony from both [Plaintiff] and the 16 [VE] provide persuasive evidence that [Plaintiff] performed his 17 past relevant work at a light exertional level which falls within 18 the parameters of his [RFC]. (Id.) The ALJ also stated, 19 somewhat contradictorily and without elaboration, that Plaintiff 20 could perform the laborer job as generally performed even 21 though it was medium exertion. (Id.) The ALJ concluded that 22 Plaintiff was not disabled and denied his claims for benefits. 23 (AR 37-38.) 24 25 26 27 28 6 An SVP of two corresponds precisely to the definition of unskilled work embodied in SSA regulations. Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990). 8 1 B. 2 Plaintiff contends reversal is required because it is Past Relevant Work 3 unclear whether the ALJ completed the proper analysis in 4 determining that Plaintiff had past relevant work. 5 at 7.) (J. Stip. Petitioner further contends that because he was a self 6 employed person, the ALJ was required to deduct his normal 7 business expenses from his income before determining whether his 8 work as a salvage laborer constituted substantial gainful work 9 activity. 10 (J. Stip. at 9-10.) A job qualifies as past relevant work only if it involved 11 substantial gainful activity. Lewis v. Apfel, 236 F.3d 503, 515 12 (9th Cir. 2001); 20 C.F.R. §§ 404.1560(b)(1) (defining past 13 relevant work), 416.960(b)(1) (same). Substantial gainful 14 activity is work activity that involves doing significant 15 physical or mental activities and is the kind of work usually 16 done for pay or profit, whether or not a profit is realized. 17 §§ 404.1572(a)-(b), 416.972(a)-(b). Earnings can be a 18 presumptive, but not conclusive, sign of whether a job is 19 substantial gainful activity. Lewis, 236 F.3d at 515; see also 20 §§ 404.1574(b) (defining earnings that will ordinarily show that 21 claimant engaged in substantial gainful activity), 416.974(b) 22 (same); see also SSR 83-34, 1983 WL 31256, at *2 (Jan. 1, 1983) 23 ( The receipt of substantial income by the operator of a 24 one-person business will result in a finding of [substantial 25 gainful activity]. ). Thus, if a person s earnings exceed 26 certain amounts set forth in the regulations, he is ordinarily 27 considered to have engaged in substantial gainful activity. 28 §§ 404.1574(b), 416.974(b). See Before determining whether a self9 1 employed person s earnings rise to that level, however, the ALJ 2 must first deduct normal business expenses, among other things, 3 from the gross earnings.7 §§ 404.1575(a)(2), (c)(1), 4 416.975(a)(2), (c)(1); accord SSR 83-34, 1983 WL 31256, at *4. 5 Plaintiff does not dispute that his income while working as 6 a salvage laborer exceeded amounts generally considered to 7 indicate substantial gainful activity.8 Rather, Plaintiff argues 8 that because he was a self employed person, the ALJ was 9 required to deduct his normal business expenses from his income 10 before determining whether his work as a salvage laborer 11 constituted substantial gainful work activity. 12 10.) (J. Stip. at 9- Plaintiff contends that reversal is appropriate because it 13 is unclear whether the ALJ performed that analysis. (Id. at 14 7.) 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 If a self-employed person s net earnings do not rise to the level set forth in the regulations, the Social Security Administration applies two other tests to determine whether the person engaged in substantial gainful activity. See §§ 404.1575(a)(2), 416.975(a)(2). One test assesses whether the person s work activity, in terms of factors such as hours, skills, energy output, efficiency, duties, and responsibilities, is comparable to that of unimpaired individuals in your community who are in the same or similar businesses as their means of livelihood ; the other assesses whether the work activity is worth an amount ordinarily considered to be substantial gainful activity when considered in terms of its value to the business, or when compared to the salary that an owner would pay to an employee to do the work you are doing. Id. 8 A person who earned more than $800 a month in 2003, $810 a month in 2004, or $830 a month in 2005 is ordinarily considered to have engaged in substantial gainful activity. See Substantial Gainful Activity, Social Security, http://www.ssa. gov/oact/cola/sga.html (last accessed Dec. 10, 2013). Plaintiff earned $878 a month in 2003, $908 a month in 2004, and $969 a month in 2005. (See AR 178.) 10 1 During the administrative proceedings, however, Plaintiff 2 who was represented by counsel at the hearing and before the 3 Appeals Council (see AR 15-16, 52, 131-32, 163-65) never 4 asserted that he had incurred any business expenses in connection 5 with his work as a salvage laborer, nor did he submit any 6 evidence of such expenses. Indeed, although Plaintiff presumably 7 used transportation in his work (see, e.g., AR 554 (medical 8 record noting that Plaintiff [r]ecycle[d] cans but stopped when 9 car broke down )), Petitioner in fact testified that the friend 10 with whom he worked had a van and that his friend would take 11 the recyclables to the recycling plant (AR 57, 73). Thus, 12 nothing indicates that Plaintiff incurred transportation 13 expenses. Indeed, Plaintiff still does not point to any specific 14 business expense that the ALJ failed to deduct from his earnings; 15 instead, he contends only that reversal is required because the 16 ALJ did not perform the required analysis. (J. Stip. at 10.) 17 Because nothing indicates that Plaintiff incurred any business 18 expenses, the ALJ s failure to explicitly address the issue was 19 at most harmless error. See Molina v. Astrue, 674 F.3d 1104, 20 1115 (9th Cir. 2012) (ALJ s error harmless when inconsequential 21 to the ultimate nondisability determination (internal quotation 22 marks omitted)); Stout v. Comm r, Soc. Sec. Admin., 454 F.3d 23 1050, 1055 (9th Cir. 2006) (same). Plaintiff is not entitled to 24 remand on this ground. 25 C. 26 Plaintiff contends that he does not have the requisite Ability to Perform Past Relevant Work 27 lifting abilities to perform the past relevant work as a salvage 28 laborer because that work as he actually performed it required 11 1 him to lift up to 50 pounds. (J. Stip. at 7-8.) Plaintiff 2 argues that the ALJ limited him to light work, i.e., work that 3 requires lifting 20 pounds occasionally and 10 pounds frequently 4 and offered no explanation how an individual who is limited to 5 those weights can perform the past work where, as performed, it 6 required lifting of up to 50 pounds. 7 (Id. at 8.) A plaintiff has the burden of proving that his alleged 8 physical or mental impairments prevented him from engaging in his 9 past relevant work, either as he actually performed it or as it 10 is customarily performed in the national economy. See Vertigan 11 v. Halter, 260 F.3d 1044, 1051 (9th Cir. 2001); Orteza v. 12 Shalala, 50 F.3d 748, 751 (9th Cir. 1995) (holding that plaintiff 13 has burden to prove inability to return to former type of work, 14 not just former job). To determine whether a claimant has the 15 residual capacity to perform his past relevant work, the [ALJ] 16 must ascertain the demands of the claimant s former work and then 17 compare the demands with his present capacity. 18 Heckler, 797 F.2d 794, 797-98 (9th Cir. 1986). Villa v. Although the 19 burden lies with the plaintiff at step four, the ALJ still has a 20 duty to make the requisite factual findings to support his 21 conclusions. 22 2001). Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. Once an ALJ determines that the plaintiff s limitations 23 do not preclude the work as actually performed, the ALJ need not 24 conclude that he can also return to his prior position as 25 customarily performed in the general economy. See id. ( We have 26 never required explicit findings at step four regarding a 27 claimant s past relevant work both as generally performed and as 28 actually performed. (emphasis in original)). 12 1 The best source of how a job is generally performed is 2 usually the Dictionary of Occupational Titles ( DOT ). Id. at 3 845-46; see also Massachi v. Astrue, 486 F.3d 1149, 1153 (9th 4 Cir. 2007) ( In making disability determinations, the [SSA] 5 relies primarily on the [DOT] for information about the 6 requirements of work in the national economy. (internal 7 quotation marks omitted)). The DOT describes the position of 8 salvage laborer as collecting reusable items or waste materials 9 in containers and inspecting and sorting materials, among other 10 things. DOT 929.687-022, 1991 WL 688172. 11 [m]edium [w]ork. 9 12 It is categorized as Id. Plaintiff argues that the requirements of his past relevant 13 work as he actually performed it exceed his RFC for light work 14 because, as stated in his two disability reports, he lifted a 15 maximum of 50 pounds when working as a salvage laborer. 16 Stip. at 7-8 (citing AR 200, 210).) (J. One of those two reports, 17 however, was completed by Plaintiff s daughter, not Plaintiff (AR 18 209-16), and the ALJ explicitly found her to be only partially 19 credible (AR 36-37), a finding that Plaintiff has not challenged 20 or even addressed. Moreover, although Plaintiff s own disability 21 report states that the heaviest weight he lifted was 50 pounds 22 (AR 200), at the hearing Plaintiff testified that the heaviest 23 item he lifted was a bag of recyclable materials weighing 12 24 25 26 27 28 9 Social Security regulations state that medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. §§ 404.1567(c), 416.967(c). The Social Security Administration has specified that its exertional classifications have the same meaning as they have in the exertional classifications noted in the DOT. SSR 00-4p, 2000 WL 1898704, at *3 (Dec. 4, 2000). 13 1 pounds; in fact, he claimed that he had always been physically 2 unable to lift more than that because of his lifelong back 3 problems. (AR 57-58.) In the joint stipulation, Plaintiff does 4 not specifically address his testimony that he never lifted more 5 than 12 pounds in his previous work but instead merely states, 6 without further elaboration, that [w]hile [his] hearing 7 testimony was unclear, the vocational reports are not. (J. 8 Stip. at 8.) 9 The ALJ, however, permissibly credited Plaintiff s testimony 10 at the hearing instead of his statements in the disability 11 report. Contrary to Plaintiff s argument, his testimony at the 12 hearing was not unclear ; rather, he sufficiently explained his 13 past work, including the lifting requirements, in response to the 14 ALJ s and VE s questions. (See AR 56-58, 73.) In his decision, 15 moreover, the ALJ specifically stated that [t]estimony 16 from . . . the claimant . . . provide[d] persuasive evidence that 17 [he] performed his past relevant work at a light exertional 18 level. (AR 37.) Thus, the ALJ sufficiently indicated that he 19 was crediting Plaintiff s testimony regarding the requirements of 20 his past relevant work. See SSR 82-62, 1982 WL 31386, at *4 21 (Jan. 1, 1982) (decision that individual has capacity to perform 22 a past relevant job must include finding of fact as to the 23 physical and mental demands of the past job/occupation ). 24 Moreover, the ALJ was entitled to reject Plaintiff s 25 statement in his disability report that he lifted a maximum of 50 26 pounds while working as a salvage laborer. Elsewhere in his 27 decision, the ALJ persuasively discounted Plaintiff s credibility 28 a finding that Plaintiff does not challenge based on the lack 14 1 of objective medical evidence supporting his complaints, his 2 generally conservative treatment, his noncompliance with 3 treatment recommendations, and several inconsistencies among his 4 various statements. (AR 34-36.) Indeed, the disability reports 5 Plaintiff relies upon are themselves contradictory: in one 6 Plaintiff wrote that in his past work he frequently lifted 10 7 pounds and earned $240 a month (AR 200) and in the other his 8 daughter wrote that Plaintiff frequently lifted 50 [pounds] or 9 more, worked six days a week, and earned $50 a day (AR 210). 10 Given Plaintiff s overall lack of credibility, the ALJ 11 permissibly credited his hearing testimony rather than the 12 contradictory statements in his disability report in determining 13 the requirements of his past work. Because Plaintiff therefore 14 failed to carry his burden of proving that he was unable to 15 perform his past relevant work, see Pinto, 249 F.3d at 844, he is 16 not entitled to remand on this ground.10 17 18 19 20 21 10 The ALJ appears to have erred in finding that Plaintiff 22 could perform his past relevant work as generally performed. (See AR 37.) As noted, the DOT states that the salvage laborer 23 job was medium work, DOT 929.687-022, 1991 WL 688172, which a full work 24 exceeded Plaintiff s RFC forbecause,range of lightabove,(AR 34). But that error was harmless as discussed the ALJ 25 permissibly found that Plaintiff could perform his past relevant 26 27 28 work as he actually performed it. See Molina, 674 F.3d at 1115; Stout, 454 F.3d at 1055; cf. Tweedy v. Astrue, 460 F. App x 659, 661 (9th Cir. 2011) (declining to address whether claimant could perform past relevant work as generally performed when ALJ correctly concluded that claimant could perform it as actually performed). 15 1 VI. CONCLUSION 2 Consistent with the foregoing and pursuant to sentence four 3 of 42 U.S.C. § 405(g),11 IT IS ORDERED that judgment be entered 4 AFFIRMING the decision of the Commissioner and dismissing this 5 action with prejudice. IT IS FURTHER ORDERED that the Clerk 6 serve copies of this Order and the Judgment on counsel for both 7 parties. 8 9 10 DATED: December 19, 2013 11 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 This sentence provides: The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. 16
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