James Terry v. Nancy A. Berryhill, No. 2:2018cv08794 - Document 24 (C.D. Cal. 2019)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen E. Scott. IT IS ORDERED that judgment shall be entered AFFIRMING the decision of the Commissioner. (See document for details.) (sbou)
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James Terry v. Nancy A. Berryhill Doc. 24 1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JAMES T., 12 13 14 15 Case No. 2:18-cv-08794-KES Plaintiff, MEMORANDUM OPINION AND ORDER v. ANDREW M. SAUL, Commissioner of Social Security,1 Defendant. 16 17 18 I. 19 BACKGROUND 20 Plaintiff James T. (“Plaintiff”) applied for Social Security disability benefits 21 in March 2015, alleging disability commencing December 18, 2014. 22 Administrative Record (“AR”) 238-39. On August 11, 2017, an Administrative 23 Law Judge (“ALJ”) conducted a hearing at which Plaintiff, who was represented 24 by an attorney, appeared and testified, as did a vocational expert (“VE”). AR 123- 25 26 27 28 Mr. Saul was sworn in as Commissioner of Social Security in June 2019. See https://blog.ssa.gov/social-security-welcomes-its-new-commissioner/. Accordingly, he is substituted for Ms. Berryhill pursuant to Federal Rule of Civil Procedure 25(d). 1 1 Dockets.Justia.com 1 57. On December 13, 2017, the ALJ issued an unfavorable decision. AR 23-49. 2 The ALJ found that Plaintiff suffered from medically determinable severe 3 impairments consisting of central sleep apnea; osteoarthritis of the left shoulder; 4 lumbar degenerative disc disease without nerve root compression; depression; and 5 anxiety. AR 28. Despite these impairments, the ALJ found that Plaintiff had a 6 residual functional capacity (“RFC”) to perform medium work as defined in 20 7 C.F.R. § 404.1567(c) with some additional restrictions. AR 37. Of relevance here, 8 the ALJ found that Plaintiff could “sit, stand or walk up to 6 hours in an 8 hour 9 workday.” Id. 10 Based on the RFC analysis and the VE’s testimony, the ALJ found that 11 Plaintiff could work as an order filler (Dictionary of Occupational Titles [“DOT”] 12 922.687-058), packager (DOT 920.587-018), and laundry worker (DOT 361.685- 13 018) (collectively, the “Alternative Jobs”). AR 42. The ALJ concluded that 14 Plaintiff was not disabled. AR 43. 15 II. 16 ISSUE PRESENTED 17 This appeal presents the sole issue of whether substantial evidence supports 18 the ALJ’s finding that Plaintiff can do the Alternative Jobs. (Dkt. 23, Joint 19 Stipulation [“JS”] at 4.) Substantial evidence is such relevant evidence as a 20 reasonable mind might accept as adequate to support a conclusion. Richardson v. 21 Perales, 402 U.S. 389, 401 (1971). 22 III. 23 DISCUSSION 24 25 Summary of Relevant Administrative Proceedings and Rulings. The regulation cited by the ALJ defines medium work as follows: “Medium 26 work involves lifting no more than 50 pounds at a time with frequent lifting or 27 carrying of objects weighing up to 25 pounds. If someone can do medium work, 28 we determine that he or she can also do sedentary and light work.” 20 C.F.R. 2 1 § 404.1567(c). Light work, in turn, is defined as work with lower frequent lifting 2 requirements that “requires a good deal of walking or standing.” 20 C.F.R. 3 § 404.1567(b). 4 The Social Security Administration (“SSA”) has promulgated a Social 5 Security Ruling (“SSR”) that better quantifies the walking and standing 6 requirements for medium and light work. 20 C.F.R. § 402.35(b) (defining SSA’s 7 authority to publish SSRs). SSRs do not have the force of law. Nevertheless, they 8 “constitute Social Security Administration interpretations of the statute it 9 administers and of its own regulations,” and are given deference “unless they are 10 plainly erroneous or inconsistent with the Act or regulations.” Han v. Bowen, 882 11 F.2d 1453, 1457 (9th Cir. 1989). 12 The SSA has determined that, like light work, “[a] full range of medium 13 work requires standing or walking, off and on, for a total of approximately 6 hours 14 in an 8-hour workday in order to meet the requirements of frequent lifting or 15 carrying objects weighing up to 25 pounds,” because “frequent” means “occurring 16 from one-third to two-thirds of the time.” SSR 83-10, 1983 SSR LEXIS 30, 1983 17 WL 31251, at *6 (Jan. 1, 1983). The Ninth Circuit has relied on SSR 83-10 in 18 determining the sitting, walking, and standing requirements of sedentary and light 19 work, both of which are subsumed by the medium work limitations, and the latter 20 of which includes the same standing and walking requirements. See Aukland v. 21 Massanari, 257 F.3d 1033, 1035-36 (9th Cir. 2001) (“Social Security Ruling 83-10 22 defines ‘occasionally’ as ‘occurring very little up to one-third of the time.’ 23 ‘[P]eriods of standing or walking should generally total no more than about 2 hours 24 of an 8-hour workday, and sitting should generally total approximately 6 hours of 25 an 8-hour workday.’ Id. . . . Pursuant to these rulings and regulations, it is true that 26 ‘to be physically able to work the full range of sedentary jobs, the worker must be 27 able to sit through most or all of an eight hour day.’”); Macri v. Chater, 93 F.3d 28 540, 546 (9th Cir. 1996) (“However, there is no logical nexus between the 3 1 completion of an electronics course and an ability to perform light work, which 2 includes lifting up to 20 pounds, frequently lifting up to 10 pounds, and ‘standing 3 or walking, off and on, for a total of approximately 6 hours of an 8-hour workday.’ 4 Social Security Ruling 83-10; see also 20 C.F.R. § 404.1567(b).”). 5 At the hearing, the ALJ asked the VE to assume a hypothetical worker “who 6 has the capacity to do medium work” with some additional limitations. AR 153. 7 The hypothetical question posed to the VE did not specify any limitations on 8 lifting, walking, or standing other than referencing “medium” work. Id. The VE 9 answered this hypothetical question by identifying the three Alternative Jobs, all 10 classified as medium work by the DOT.2 AR 154. Plaintiff’s counsel did not ask 11 the VE any questions. AR 155. The ALJ relied on the VE’s testimony to find that 12 Plaintiff could do the three Alternative Jobs. AR 42. 13 Analysis of Claimed Error. 14 Plaintiff contends that by referencing medium work (rather than an express 15 limitation to sitting, standing, or walking for up to 6 hours in an 8 hour workday), 16 the ALJ posed to the VE an incomplete hypothetical that did not include all of the 17 limitations in the RFC. (JS at 5-6.) As a result, the VE’s answer was not 18 substantial evidence on which the ALJ could rely. (Id.) 19 SSR 83-10 was published in 1983. Since that time, ALJs and VEs with 20 experience conducting social security disability benefits hearings have understood 21 medium work as requiring the ability to stand or walk for up to 6 hours. There is 22 no reason to think that the ALJ and VE in this case lacked that understanding. 23 Thus, the ALJ’s reference to medium work supplied a 6-hour limitation on walking 24 and standing, and the ALJ did not pose an incomplete hypothetical to the VE. 25 26 27 28 The DOT’s definitions of light and medium work track the definitions in 20 C.F.R. § 404.1567(b) and (c), although worded slightly differently (e.g., “exerting force” rather than “lifting”). DOT Appendix C. 2 4 1 Plaintiff also argues that SSR 83-10 is not entitled to deference because it is 2 inconsistent with 20 C.F.R. § 404.1567(c) and does not implicate the 3 Commissioner’s expertise. (JS at 12-13.) Plaintiff fails to identify (let alone 4 explain) the alleged inconsistency, and interpreting definitions within the 5 regulations falls within the Commissioner’s expertise. Furthermore, as noted 6 above, the Ninth Circuit has endorsed relying on SSR 83-10 in determining the 7 standing and walking requirements of different exertional categories of work. See 8 Aukland, 257 F.3d at 1035-36; Macri, 93 F.3d at 546. 9 IV. 10 CONCLUSION 11 12 Because Plaintiff has not demonstrated legal error, IT IS ORDERED that judgment shall be entered AFFIRMING the decision of the Commissioner. 13 14 DATED: July 10, 2019 15 ______________________________ KAREN E. SCOTT United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 5
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