Piamichele Patricia Lyotier Kennedy v. Carolyn W. Colvin, No. 2:2014cv02277 - Document 19 (C.D. Cal. 2014)

Court Description: MEMORANDUM OPINION by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is affirmed. See memorandum for details. (hr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 PIAMICHELE PATRICIA LYOTIER KENNEDY, Plaintiff, 13 16 MEMORANDUM OPINION v. 14 15 Case No. CV 14-2277 JC CAROLYN W. COLVIN, Acting Commissioner of Social Security, 17 18 I. 19 Defendant. SUMMARY On March 25, 2014, plaintiff Piamichele Patricia Lyotier Kennedy 20 ( plaintiff ) filed a Complaint seeking review of the Commissioner of Social 21 Security s denial of plaintiff s application for benefits. The parties have consented 22 to proceed before the undersigned United States Magistrate Judge. 23 This matter is before the Court on the parties cross motions for summary 24 judgment, respectively ( Plaintiff s Motion ) and ( Defendant s Motion ). The 25 Court has taken both motions under submission without oral argument. See Fed. 26 R. Civ. P. 78; L.R. 7-15; March 27, 2014 Case Management Order ¶ 5. 27 /// 28 /// 1 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is AFFIRMED. The findings of the Administrative Law Judge 3 ( ALJ ) are supported by substantial evidence and are free from material error.1 4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 5 DECISION 6 On August 19, 2010, plaintiff filed applications for Supplemental Security 7 Income and Disability Insurance Benefits. (Administrative Record ( AR ) 27, 8 150, 154). Plaintiff asserted that she became disabled on April 19, 2009, due to 9 mental illness. (AR 27, 150, 154, 182). The ALJ examined the medical record 10 and heard testimony from plaintiff (who was represented by counsel) and a 11 vocational expert on June 20, 2012. (AR 59-93). 12 On November 16, 2012, the ALJ determined that plaintiff was not disabled 13 through the date of the decision. (AR 27-48). Specifically, the ALJ found: 14 (1) plaintiff suffered from the following severe impairments: bipolar disorder and 15 anxiety disorder not otherwise specified (AR 45); (2) plaintiff s impairments, 16 considered singly or in combination, did not meet or medically equal a listed 17 impairment (AR 45); (3) plaintiff retained the residual functional capacity to 18 perform a full range of work at all exertional levels, but was limited to simple, 19 routine tasks in an environment with limited contact with others (AR 45); 20 (4) plaintiff could not perform her past relevant work (AR 47); (5) there are jobs 21 that exist in significant numbers in the national economy that plaintiff could 22 perform, specifically inspector, assembler, and packager (AR 47-48); and 23 (6) plaintiff s subjective complaints were not fully credible (AR 46). 24 The Appeals Council denied plaintiff s application for review. (AR 1). 25 26 1 The harmless error rule applies to the review of administrative decisions regarding 27 disability. See Molina v. Astrue, 674 F.3d 1104, 1115-22 (9th Cir. 2012) (discussing contours of application of harmless error standard in social security cases) (citing, inter alia, Stout v. 28 Commissioner, Social Security Administration, 454 F.3d 1050, 1054-56 (9th Cir. 2006)). 2 1 III. APPLICABLE LEGAL STANDARDS 2 A. 3 To qualify for disability benefits, a claimant must show that the claimant is Sequential Evaluation Process 4 unable to engage in any substantial gainful activity by reason of any medically 5 determinable physical or mental impairment which can be expected to result in 6 death or which has lasted or can be expected to last for a continuous period of not 7 less than 12 months. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) 8 (quoting 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted). The 9 impairment must render the claimant incapable of performing the work the 10 claimant previously performed and incapable of performing any other substantial 11 gainful employment that exists in the national economy. Tackett v. Apfel, 180 12 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 13 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 14 sequential evaluation process: 15 (1) 16 17 Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. (2) Is the claimant s alleged impairment sufficiently severe to limit 18 the claimant s ability to work? If not, the claimant is not 19 disabled. If so, proceed to step three. 20 (3) Does the claimant s impairment, or combination of 21 impairments, meet or equal an impairment listed in 20 C.F.R. 22 Part 404, Subpart P, Appendix 1? If so, the claimant is 23 disabled. If not, proceed to step four. 24 (4) Does the claimant possess the residual functional capacity to 25 perform claimant s past relevant work? If so, the claimant is 26 not disabled. If not, proceed to step five. 27 28 (5) Does the claimant s residual functional capacity, when considered with the claimant s age, education, and work 3 1 experience, allow the claimant to adjust to other work that 2 exists in significant numbers in the national economy? If so, 3 the claimant is not disabled. If not, the claimant is disabled. 4 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 5 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920); see also Molina, 674 F.3d at 6 1110 (same). 7 The claimant has the burden of proof at steps one through four, and the 8 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 9 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098); see also Burch 10 v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (claimant carries initial burden of 11 proving disability). 12 B. 13 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 14 benefits only if it is not supported by substantial evidence or if it is based on legal 15 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 16 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 17 (9th Cir. 1995)). Substantial evidence is such relevant evidence as a reasonable 18 mind might accept as adequate to support a conclusion. Richardson v. Perales, 19 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 20 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 21 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 22 To determine whether substantial evidence supports a finding, a court must 23 consider the record as a whole, weighing both evidence that supports and 24 evidence that detracts from the [Commissioner s] conclusion. Aukland v. 25 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 26 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 27 or reversing the ALJ s conclusion, a court may not substitute its judgment for that 28 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 4 1 IV. DISCUSSION 2 Plaintiff contends that a reversal or remand is warranted because the ALJ s 3 step five determination was based on legal error. (Plaintiff s Motion at 4-7). The 4 Court disagrees. 5 A. 6 If, at step four, the claimant meets her burden of establishing an inability to Pertinent Law 7 perform past work, the Commissioner must show, at step five, that the claimant 8 can perform some other work that exists in significant numbers in the national 9 economy (whether in the region where such individual lives or in several regions 10 of the country), taking into account the claimant s residual functional capacity, 11 age, education, and work experience. Tackett, 180 F.3d at 1100 (citing 20 C.F.R. 12 §§ 404.1560(b)(3)); 42 U.S.C. § 423(d)(2)(A). The Commissioner may satisfy this 13 burden, depending upon the circumstances, by the testimony of a vocational expert 14 or by reference to the Medical-Vocational Guidelines appearing in 20 C.F.R. Part 15 404, Subpart P, Appendix 2 (commonly known as the Grids ). Osenbrock v. 16 Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001) (citing Tackett). 17 When a claimant suffers only exertional (strength-related) limitations, the 18 ALJ must consult the Grids. Lounsburry v. Barnhart, 468 F.3d 1111, 1115 (9th 19 Cir. 2006). When a claimant suffers only non-exertional limitations, however, the 20 Grids (which are predicated solely on a claimant s exertional limitations) are 21 generally inappropriate and the ALJ must rely on other evidence. Id. (citation 22 omitted). When a claimant suffers from both exertional and nonexertional 23 limitations, the ALJ must first determine whether the Grids mandate a finding of 24 disability with respect to exertional limitations. See Lounsburry, 468 F.3d at 25 1116; Cooper v. Sullivan, 880 F.2d 1152, 1155 (9th Cir. 1989). If so, the claimant 26 must be awarded benefits. Cooper, 880 F.2d at 1155. If not, and if the claimant 27 suffers from significant and sufficiently severe non-exertional limitations, not 28 accounted for in the Grids, the ALJ must take the testimony of a vocational expert. 5 1 Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007). The vocational expert s 2 testimony may constitute substantial evidence of a claimant s ability to perform 3 work which exists in significant numbers in the national economy when the ALJ 4 poses a hypothetical question that accurately describes all of the limitations and 5 restrictions of the claimant that are supported by the record. See Tackett, 180 F.3d 6 at 1101. 7 B. 8 At the June 20, 2012 administrative hearing, the ALJ posed a hypothetical Pertinent Facts 9 question to the vocational expert which included all the limitations noted in the 10 ALJ s residual functional capacity assessment for plaintiff (i.e., that plaintiff could 11 perform work at all exertional levels, with the additional non-exertional limitations 12 to only simple, routine tasks in an environment with limited contact with others). 13 (Compare AR 45 with AR 84). In response, the vocational expert essentially 14 testified that plaintiff (or a hypothetical individual with the same characteristics as 15 plaintiff) would be able to perform the representative jobs of order clerk, 16 inspector, and assembler. (AR 84-85). 17 C. 18 Plaintiff appears to argue that the ALJ erred at step five by relying on the Analysis 19 vocational expert s testimony regarding available jobs instead of consulting Rules 20 201.06 and 202.06 under the Grids which, plaintiff contends, would mandate a 21 finding of disability in plaintiff s case. (Plaintiff s Motion at 4-7). A remand or 22 reversal is not warranted on this basis. 23 Here, substantial evidence supported the ALJ s non-disability determination 24 at step five. Plaintiff does not dispute the accuracy of the hypothetical question 25 the ALJ posed to the vocational expert at the hearing. Thus, the vocational 26 expert s testimony in response to the ALJ s complete hypothetical question, 27 without more, was substantial evidence supporting the ALJ s determination that 28 plaintiff was able to perform work which exists in significant numbers in the 6 1 national economy. See Tackett, 180 F.3d at 1101; see also Bayliss v. Barnhart, 2 427 F.3d 1211, 1218 (9th Cir. 2005) ( A [vocational expert s] recognized 3 expertise provides the necessary foundation for his or her testimony. Thus, no 4 additional foundation is required. ). 5 To the extent plaintiff argues that the ALJ erred at step five by not using 6 Rules 201.06 and 202.06, such an argument lacks merit. Use of the Grids is not 7 appropriate at step five where, like here, a claimant suffers only non-exertional 8 limitations. See Lounsburry, 468 F.3d at 1115 (citation omitted). Even so, as 9 noted above, the ALJ determined that, apart from certain non-exertional 10 limitations, plaintiff retained the residual functional capacity to perform work at 11 all exertional levels. (AR 45). Thus, Rules 201.06 and 202.06 which are used 12 when claimants are limited to work at the sedentary and light exertional levels, 13 respectively would not apply in plaintiff s case.2 14 Accordingly, a reversal or remand on this basis is not warranted. 15 V. CONCLUSION 16 For the foregoing reasons, the decision of the Commissioner of Social 17 Security is affirmed. 18 LET JUDGMENT BE ENTERED ACCORDINGLY. 19 DATED: August 27, 2014 20 21 _____________/s/____________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 22 23 24 25 2 Plaintiff s suggestion that the ALJ found that [plaintiff] can only perform sedentary and 26 light occupations (Plaintiff s Motion at 6) (emphasis added) is belied by the record. Plaintiff 27 has apparently confused the ALJ s finding at step five that plaintiff is able to do the representative sedentary and light jobs identified by the vocational expert as being the ALJ s 28 initial assessment of plaintiff s residual functional capacity. 7

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