Victor M. Benitez v. Carolyn W. Colvin, No. 2:2016cv09243 - Document 24 (C.D. Cal. 2017)

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. The Clerk of the Court shall serve copies of this Order and the Judgment on counsel for both parties. (See document for further details). (mr)

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Victor M. Benitez v. Carolyn W. Colvin Doc. 24 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 VICTOR M. BENITEZ, 11 CASE NO. CV 16-9243 SS Plaintiff, 12 v. 13 MEMORANDUM DECISION AND ORDER NANCY A. BERRYHILL,1 Acting Commissioner of Social Security, 14 15 Defendant. 16 17 18 I. 19 INTRODUCTION 20 21 Victor M. Benitez (“Plaintiff”) brings this action seeking 22 to overturn the decision of the Acting Commissioner of Social 23 Security (the “Commissioner” or “Agency”) denying his applications 24 for Disability Insurance Benefits. The parties consented, pursuant 25 to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned 26 1 27 28 Nancy A. Berryhill, Acting Commissioner of Social Security, is substituted for her predecessor Carolyn W. Colvin, whom Plaintiff named in the Complaint. See 42 U.S.C. § 405(g); Fed. R. Civ. P. 25(d). Dockets.Justia.com 1 United States Magistrate Judge. (Dkt. Nos. 11-13). For the reasons 2 stated below, the Court AFFIRMS the Commissioner’s decision. 3 4 II. 5 PROCEDURAL HISTORY 6 7 On March 7, 2013, Plaintiff filed an application for 8 Disability Insurance Benefits (“DIB”) pursuant to Title II of the 9 Social Security Act, alleging a disability onset date of August 1, (AR 148-54, 171). The Commissioner denied Plaintiff’s 10 2012. 11 application 12 Thereafter, Plaintiff requested a hearing before an Administrative 13 Law Judge (“ALJ”) (AR 105-11), which took place on June 11, 2015 14 (AR 41-61). 15 finding that Plaintiff was not disabled because there are jobs in 16 the national economy that he can perform. 17 17, 18 review. 2016, initially and on reconsideration. (AR 62-91). The ALJ issued an adverse decision on July 30, 2015, the Appeals (AR 1-6). Council denied (AR 25-35). Plaintiff’s On October request for This action followed on January 18, 2017. 19 20 III. 21 FACTUAL BACKGROUND 22 23 Plaintiff was born on January 8, 1971. (AR 34). He was forty- 24 four years old when he appeared before the ALJ on June 11, 2015. 25 (AR 41). 26 not married and lives with his sister. 27 previously worked as a chemical handler and materials clerk. 28 34, 176). Plaintiff has a high school degree. (AR 34, 176). He is (AR 150, 174). Plaintiff (AR He alleges disability due to severe headaches, problems 2 1 concentrating, back pain, dizzy spells, depression and anxiety. 2 (AR 175). 3 4 Plaintiff has had chronic lower back pain since 2004. 5 398). 6 squatting and bending. 7 his feet. 8 was taken to the hospital. 9 treat two brain aneurysms. (AR The pain radiates to his legs and is worse with lifting, (AR 398). (AR 398). He gets occasional numbness in In 2010, Plaintiff lost consciousness and (AR 397). He had surgical clipping to (AR 397). Following these events, 10 Plaintiff asserts that he suffers from chronic headaches. 11 (AR 397). 12 13 Plaintiff testified that he is unable to work because of 14 headaches, fatigue, trouble concentrating, forgetfulness and pain. 15 (AR 44). 16 extremities causing numbness and tingling in his feet. 17 49). 18 or sitting before needing to rest. He has lower back pain that radiates through his lower (AR 45, Plaintiff is able to drive and can spend four hours standing (AR 49-50, 56). 19 20 IV. 21 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 22 23 To qualify for disability benefits, a claimant must 24 demonstrate a medically determinable physical or mental impairment 25 that prevents the claimant from engaging in substantial gainful 26 activity and that is expected to result in death or to last for a 27 continuous period of at least twelve months. 28 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). 3 Reddick v. Chater, 1 The impairment must render the claimant incapable of performing 2 work 3 employment that exists in the national economy. 4 180 5 § 423(d)(2)(A)). previously F.3d performed 1094, 1098 or (9th any Cir. other 1999) substantial gainful Tackett v. Apfel, (citing 42 U.S.C. 6 7 To decide if a claimant is entitled to benefits, an ALJ 8 conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. 9 steps are: The 10 11 (1) Is the claimant presently engaged in substantial gainful 12 activity? 13 not, proceed to step two. 14 (2) Is the If so, the claimant is found not disabled. claimant’s impairment 15 claimant is found not disabled. 16 severe? If not, If the three. 17 (3) If so, proceed to step Does the claimant’s impairment meet or equal one of the 18 specific impairments described in 20 C.F.R. Part 404, 19 Subpart P, Appendix 1? 20 disabled. 21 (4) If so, the claimant is found If not, proceed to step four. Is the claimant capable of performing his past work? If 22 so, the claimant is found not disabled. 23 to step five. 24 (5) If not, proceed Is the claimant able to do any other work? 25 claimant is found disabled. 26 not disabled. 27 28 4 If not, the If so, the claimant is found 1 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 2 262 F.3d 949, 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b)- 3 (g)(1), 416.920(b)-(g)(1). 4 5 The claimant has the burden of proof at steps one through four 6 and 7 Bustamante, 262 F.3d at 953-54. 8 affirmative duty to assist the claimant in developing the record 9 at every step of the inquiry. the Commissioner has the burden of proof at step five. Additionally, the ALJ has an Id. at 954. If, at step four, the 10 claimant meets his or her burden of establishing an inability to 11 perform past work, the Commissioner must show that the claimant 12 can perform some other work that exists in “significant numbers” 13 in 14 residual functional capacity (“RFC”), age, education, and work 15 experience. 16 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 17 may do so by the testimony of a VE or by reference to the Medical- 18 Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, 19 Appendix 2 (commonly known as “the grids”). 20 240 F.3d 1157, 1162 (9th Cir. 2001). 21 exertional (strength-related) and non-exertional limitations, the 22 Grids are inapplicable and the ALJ must take the testimony of a 23 vocational expert (“VE”). 24 Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 25 1988)). the national economy, taking into account the claimant’s Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at The Commissioner Osenbrock v. Apfel, When a claimant has both Moore v. Apfel, 216 F.3d 864, 869 (9th 26 27 28 5 1 V. 2 THE ALJ’S DECISION 3 4 The ALJ employed the five-step sequential evaluation process 5 and concluded that Plaintiff was not disabled within the meaning 6 of the Social Security Act. 7 that 8 September 30, 2017, and had not engaged in substantial gainful 9 activity since August 1, 2012, the alleged disability onset date. Plaintiff met the (AR 35). insured At step one, the ALJ found status requirements through At step two, the ALJ found that Plaintiff’s degenerative 10 (AR 27). 11 disc disease of the lumbar spine, obesity, tension headaches and 12 an affective disorder are severe impairments. 13 three, 14 impairment or combination of impairments that meet or medically 15 equal the severity of any of the listings enumerated in the 16 regulations. (AR 28-29). the ALJ determined that Plaintiff (AR 27). does not At step have an 17 18 The ALJ then assessed Plaintiff’s RFC and concluded that he 19 can perform light work, as defined in 20 C.F.R. § 404.1567(b),2 20 except: 21 22 23 24 25 26 27 28 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even 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. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities.” 20 C.F.R. §§ 404.1567(b), 416.967(b). 2 6 1 [Plaintiff can] stand and walk for 6 of 8 hours; sit for 2 up to 6 of 8 hours; perform unlimited balance, kneel, 3 and crouch, and frequently climb stairs and ramps, and 4 crawl. 5 can sustain concentration, persistence and pace for two 6 hours at a time with a 15-minute break every two hours. He is limited to simple, repetitive tasks, and 7 8 (AR 30). At step four, the ALJ found that Plaintiff is unable to 9 perform any past relevant work. (AR 33). Based on Plaintiff’s 10 RFC, age, education, work experience and the VE’s testimony, the 11 ALJ determined at step five that there are jobs that exist in 12 significant numbers in the national economy that Plaintiff can 13 perform, including office helper, bench assembler and inspector 14 hand packager. 15 was not under a disability as defined by the Social Security Act 16 from January 31, 2010, through the date of the ALJ’s decision. 17 35). (AR 34). Accordingly, the ALJ found that Plaintiff (AR 18 19 VI. 20 STANDARD OF REVIEW 21 22 Under 42 U.S.C. § 405(g), a district court may review the 23 Commissioner’s decision to deny benefits. 24 aside the Commissioner’s denial of benefits when the ALJ’s findings 25 are based on legal error or are not supported by substantial 26 evidence in the record as a whole.” 27 1033, 1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); see 28 7 “[The] court may set Aukland v. Massanari, 257 F.3d 1 also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing 2 Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). 3 4 “Substantial evidence is more than a scintilla, but less than 5 a preponderance.” 6 Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). 7 evidence which a reasonable person might accept as adequate to 8 support a conclusion.” 9 evidence supports a finding, the court must “‘consider the record 10 as a whole, weighing both evidence that supports and evidence that 11 detracts from the [Commissioner’s] conclusion.’” Aukland, 257 F.3d 12 at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 13 1993)). 14 or reversing that conclusion, the court may not substitute its 15 judgment for that of the Commissioner. 16 21 (citing Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 17 1457 (9th Cir. 1995)). Reddick, 157 F.3d at 720 (citing Jamerson v. (Id.). It is “relevant To determine whether substantial If the evidence can reasonably support either affirming Reddick, 157 F.3d at 720- 18 19 VII. 20 DISCUSSION 21 22 Plaintiff contends that the ALJ failed to consider a serious 23 error contained in the VE’s testimony. (Dkt. No. 22 at 2). 24 argues that the ALJ accepted the VE’s testimony regarding necessary 25 breaks for Plaintiff, but that the VE's testimony regarding breaks 26 would place an employer in violation of California state law. 27 at 4). 28 Plaintiff contends that “an employer would necessarily have to He (Id. Because California requires only two ten-minute breaks, 8 1 accommodate [Plaintiff’s] need to take a restroom break every 2 2 hours for 15 minutes.” 3 is not up to the ALJ and the vocational expert to change and 4 increase the mandated break periods employers must give as required 5 by state law.” 6 have, 7 hearing,” 8 raising it during the administrative process. 9 contends that Plaintiff's argument regarding the VE's testimony 10 at a (Id. at 5). (Id.). minimum, i.e., Plaintiff argues that “[i]t Defendant responds that “Plaintiff should raised that this Plaintiff issue waived at this his administrative contention by not Defendant further fails to require remand on the merits. 11 12 A. Plaintiff Has Not Waived His Challenge To The VE’s Testimony 13 “[A]n agency, its experts, and its administrative law judges 14 15 are better 16 reviewing court.” 17 Cir. 2017). 18 claimants are represented by counsel, they must raise all issues 19 and evidence at their administrative hearings in order to preserve 20 them on appeal.” 21 1999), as amended (June 22, 1999). 22 ruled that a claimant is not required to present all issues to the 23 Appeals Council to preserve them for appeal. 24 U.S. 25 remedies need not also exhaust issues in a request for review by 26 the Appeals Council in order to preserve judicial review of those 27 issues.”). 28 issue is waived unless raised before the ALJ or the Appeals Council. 103, positioned to weigh conflicting evidence than a Shaibi v. Berryhill, 870 F.3d 874, 881–82 (9th In 1999, the Ninth Circuit held that, “at least when 112 Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. (2000) The Supreme Court subsequently (“Claimants who Sims v. Apfel, 530 exhaust administrative Thus, when a claimant is represented by counsel, an 9 1 Shaibi, 870 F.3d at 881 (“We now hold that when a claimant fails 2 entirely to challenge a vocational expert’s job numbers during 3 administrative proceedings before the agency, the claimant waives 4 such 5 represented by counsel.”); see id. at 882 (“Shaibi did not present 6 the job-numbers issue before the ALJ or the Appeals Council.”) 7 (emphasis in original). a challenge on appeal, at least when that claimant is 8 9 Plaintiff did not present his state-law issue to the ALJ at 10 the administrative hearing. 11 the issue in his request for review before the Appeals Council. 12 (AR 246-47). 13 while the ALJ’s RFC “limits [Plaintiff] to work that allows for a 14 15 min[ute] break every two hours[,] California law does not 15 mandate such a break period.” 16 finds that Plaintiff has preserved this issue for appeal. 17 870 F.3d at 881. (AR 41-61). He did, however, raise Plaintiff argued before the Appeals Council that (AR 246). Accordingly, the Court Shaibi, 18 19 20 B. The ALJ’s Step-Five Finding Is Supported By Substantial Evidence 21 22 At step five of the sequential evaluation process, “the 23 Commissioner has the burden to identify specific jobs existing in 24 substantial numbers in the national economy that a claimant can 25 perform despite his identified limitations.” 26 778 F.3d 842, 845 (9th Cir. 2015) (citation omitted). 27 this finding, the ALJ determines “whether, given the claimant’s 28 RFC, age, education, and work experience, he actually can find some 10 Zavalin v. Colvin, In making 1 work in the national economy.” 2 omitted); see also 20 C.F.R. § 404.1520(g) (“we will consider [your 3 RFC] together with your vocational factors (your age, education, 4 and work experience) to determine if you can make an adjustment to 5 other work”). 6 the testimony of a VE or by reference to the Grids. 7 Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). Zavalin, 778 F.3d at 846 (citation The Commissioner may meet this burden by adopting Osenbrock v. 8 9 In determining whether there are potential occupations that 10 the claimant may be able to perform, “the ALJ relies on the 11 [Department of Labor’s Dictionary of Occupational Titles (“DOT”)], 12 which is the [Agency’s] primary source of reliable job information 13 regarding jobs that exist in the national economy.” 14 F.3d 15 requirements for each listed occupation, including the necessary 16 General Educational Development (“GED”) levels; that is, aspects 17 of education (formal and informal) required of the worker for 18 satisfactory 19 alterations omitted). 20 VE, who testifies about specific occupations that a claimant can 21 perform in light of his RFC. at 845-46 job (citation omitted). performance.” Id. “The at DOT 846 Zavalin, 778 describes (citation the and In addition to the DOT, the ALJ relies on a Id. 22 23 The VE testified that given Plaintiffs’ RFC, there are 24 occupations in the national economy that he can perform, including 25 office helper, bench assembler and hand packager inspector. 26 57-58). 27 minute break every two hours. 28 requires only two ten-minute breaks during an eight-hour workday. (AR Plaintiff’s RFC includes a requirement for a fifteen(AR 30). 11 California law, however, 1 8 Cal. Code Regs. § 11010(12)(A). 2 erred by failing to resolve this apparent “conflict” between the 3 VE’s testimony and California state law requirements for break 4 periods. (Dkt. No. 22 at 5). Plaintiff argues that the ALJ The Court disagrees. 5 6 The California regulation is a minimum break requirement. It 7 does not preclude employers from providing their employees with 8 two fifteen-minute breaks. 9 of California law if they provided an employee with a more generous 10 Employers would not be in "violation" break period. 11 12 More importantly, the determination of disability by the 13 Commissioner, 14 identification of a significant number of jobs in the national 15 economy. 16 disability” 17 substantial gainful work which exists in the national economy, 18 regardless of whether such work exists in the immediate area in 19 which he lives, or whether a specific job vacancy exists for him, 20 or whether he would be hired if he applied for work”) (emphasis 21 added). 22 matter whether . . . [w]ork exists in the immediate area” where 23 the claimant lives. 24 Comm’r of Soc. Sec., 740 F.3d 519, 526 (9th Cir. 2014) (“relevant 25 job area for purposes of the statutory definition of ‘disability’ 26 need 27 administrative notice of any reliable job information, including not who leads a federal agency, rests on the 42 U.S.C. § 423(d)(2)(A) (a claimant is not “under a if he is able to “engage in any other kind of Indeed, the regulations emphasize that “[i]t does not be the 20 C.F.R. § 404.l566(a)(1); see Gutierrez v. claimant’s local 28 12 area”). “An ALJ may take 1 information provided by a VE.” 2 1218 (9th Cir. 2005). Bayliss v. Barnhart, 427 F.3d 1211, 3 4 Plaintiff has not argued that this minimum break period is a 5 federal requirement. 6 states to set a minimum-break period. 7 Minimum Paid Rest Period Requirements Under State Law for Adult 8 Employees 9 https://www.dol.gov/whd/state/rest.htm (listing only nine states in minimum In addition, California is one of very few Private rest Sector period (Jan. See U.S. Dep’t of Labor, 1, requirements). 2017), Thus, available when the at 10 with VE 11 testified that there was a significant number of jobs available 12 that would allow Plaintiff to take a fifteen-minute break every 13 two hours, she was not basing her conclusion on federal or state 14 law requirements. 15 twenty minutes “are common in industry.” 16 periods of short duration, running from 5 minutes to about 20 17 minutes, are common in industry.”); see Beadle v. Comm’r of Soc. 18 Sec. Admin., No. 16 CV 0313, 2016 WL 7335808, at *5 (N.D. Ohio Nov. 19 3, 2016), report and recommendation adopted sub nom. Beadle v. 20 Comm’r of Soc. Sec., No. 16 CV 0313, 2016 WL 7325160 (N.D. Ohio 21 Dec. 16, 2016) (VE testifying that “custom and labor laws provide 22 for a 15–minute break every two hours”); Gainey v. Colvin, No. 14- 23 CV-1-RJ, 2015 WL 1354555, at *5 (E.D.N.C. Mar. 24, 2015) (VE 24 testifying that fifteen-minute breaks in the morning and afternoon 25 are “the industry standard”); Richards v. Colvin, No. 14 CV 26508, 26 2015 WL 8489032, at *6 (S.D. W. Va. Oct. 7, 2015), report and 27 recommendation adopted, No. CV 14-26508, 2015 WL 8492761 (S.D. W. 28 Va. Dec. 10, 2015) (same); McCoy v. Comm’r of Soc. Sec., No. 15 CV Instead, rest periods running from five to 13 29 C.F.R. § 785.18 (“Rest 1 2308, 2016 WL 6565559, at *9 (N.D. Ohio Nov. 4, 2016) (same). 2 ALJ 3 significant number of jobs in the national economy that allow 4 fifteen-minute breaks every two hours. 5 (“ALJ’s reliance on the VE’s testimony regarding the number of 6 relevant jobs in the national economy was warranted.”). 7 may take administrative notice of any reliable job information, 8 including information 9 expertise provides properly relied on the VE’s provided the by necessary testimony a that there The are a Bayliss, 427 F.3d at 1218 VE. foundation A VE’s for “An ALJ recognized his or her 10 testimony.” Id. (citation omitted); 20 C.F.R. § 404.1566 (“If the 11 issue in determining whether you are disabled is whether your work 12 skills can be used in other work and the specific occupations in 13 which they can be used, 14 vocational expert or other specialist.”). . . . we may use the services of a 15 16 Plaintiff relies on Social Security Ruling (“SSR”) 00-4p,3 17 2000 WL 1898704 (S.S.A. Dec. 4, 2000), to argue that the ALJ was 18 not allowed to rely on the VE’s testimony because it “cause[d] a 19 facial violation with the state employment laws of the region” such 20 that the Agency must resolve “testimony that deviates from the 21 standards articulated in the California Code of Regulations.” 22 (Dkt. No. 22 at 3, 5). 23 the ALJ should handle any “conflicts between occupational evidence 24 provided by a VE . . . and information in the DOT.” 25 However, SSR 00-4p merely addresses how Social Security Rulings (SSRs) “do not carry the ‘force of law,’ but they are binding on ALJs nonetheless.” Bray, 554 F.3d at 1224. They “reflect the official interpretation of the [Agency] and are entitled to some deference as long as they are consistent with the Social Security Act and regulations.” Id. (citation omitted). 3 26 27 28 2000 WL 14 1 1898704, at *2. 2 to “inquire, on the record, as to whether or not there is such 3 consistency.” 4 between VE . . . evidence and the DOT, the adjudicator must elicit 5 a reasonable explanation for the conflict before relying on the 6 VE . . . evidence to support a determination or decision about 7 whether the claimant is disabled.” 8 her testimony was consistent with the DOT (AR 60), and Plaintiff 9 identifies no conflict between his RFC and the DOT.4 10 Thus, pursuant to SSR 00-4p, the ALJ is required Id. “When there is an apparent unresolved conflict Id. Here, the VE affirmed that The ALJ’s step-five finding is supported by substantial evidence. 11 12 VIII. 13 CONCLUSION 14 15 Consistent with the foregoing, IT IS ORDERED that Judgment be 16 entered AFFIRMING the decision of the Commissioner. 17 the Court shall serve copies of this Order and the Judgment on 18 counsel for both parties. The Clerk of 19 20 DATED: December 14, 2017 21 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 22 23 24 25 4 26 27 28 Plaintiff also cites SSR 00-1c, 2000 WL 38896 (S.S.A. Jan. 7, 2000). (Dkt. No. 22 at 5-6). However, SSR 00-1c “concerns whether an individual’s claim for, or receipt of, [DIB] would preclude the individual from pursuing relief under the Americans with Disabilities Act (ADA),” id. at *1, which is not at issue here. 15 1 2 3 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW, LEXIS/NEXIS OR ANY OTHER LEGAL DATABASE. 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 16

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