Dale Anne Watkins v. Michael J. Astrue, No. 5:2011cv00343 - Document 22 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jay C. Gandhi. IT IS ORDERED THAT judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits. 1 . (bem)

Download PDF

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DALE ANNE WATKINS, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 16 17 Defendant. ) Case No. ED CV 11-0343 JCG ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 18 19 I. 20 INTRODUCTION AND SUMMARY 21 On March 8, 2011, plaintiff Dale Anne Watkins ( Plaintiff ) filed a complaint 22 against defendant Michael J. Astrue ( Defendant ), the Commissioner of the Social 23 Security Administration, seeking review of a denial of supplemental security income 24 benefits ( SSI ). [Docket No. 3.] On October 3, 2011, Defendant filed his answer, along with a certified copy of 25 26 the administrative record. [Docket Nos. 14, 15.] In sum, having carefully studied, inter alia, the parties joint stipulation and 27 28 the administrative record, the Court concludes that, as detailed below, there is 1 substantial evidence in the record, taken as a whole, to support the decision of the 2 Administrative Law Judge ( ALJ ). Thus, the Court affirms the Commissioner s 3 decision denying benefits. 4 II. 5 PERTINENT FACTUAL AND PROCEDURAL BACKGROUND Plaintiff, who was 48 years old on the date of her administrative hearing, has a 6 7 high school equivalent education and training as a cosmetologist. (See 8 Administrative Record ( AR ) at 20, 28, 56, 128, 151.) On August 24, 2007, Plaintiff filed for SSI, alleging that she has been disabled 9 10 since February 1, 2002 due to blindness, attention deficit hyperactivity disorder, 11 bipolar disorder, mental illness, and hepatitis C. (See AR at 70, 147, 191.) On December 7, 2009, Plaintiff, represented by counsel, appeared and 12 13 testified at a hearing before an ALJ. (See AR at 20-67.) Elizabeth Ramos, a 14 vocational expert ( VE ), also testified. (Id.; see also id. at 123-25.) On January 19, 2010, the ALJ denied Plaintiff s request for benefits. (AR at 15 16 9-19.) Applying the familiar five-step sequential evaluation process, the ALJ found, 17 at step one, that Plaintiff has not engaged in substantial gainful activity since her SSI 18 application date. (Id. at 11.) At step two, the ALJ found that Plaintiff suffers from severe impairments 19 20 consisting of lumbar strain with degenerative changes by history, Hepatitis C, 21 corneal scar, left eye, obesity, and bipolar disorder. (AR at 11 (emphasis and 22 citations omitted).) At step three, the ALJ determined that the evidence did not demonstrate that 23 24 Plaintiff s impairments, either individually or in combination, meet or medically 25 equaled the severity of any listing set forth in the Social Security regulations.1/ (AR 26 at 12.) 27 28 1/ See 20 C.F.R. pt. 404, subpt. P, app. 1. 2 The ALJ then assessed Plaintiff s residual functional capacity2/ ( RFC ) and 1 2 determined that she can perform light work. Specifically, the ALJ found: 3 [Plaintiff] can stand and/or walk for six hours in an eight hour 4 work day, sit for six hours in an eight hour work day, 5 occasionally balance, kneel, crouch, crawl, and stoop, must avoid 6 concentrated exposure to fumes, dust, gases, poor ventilation, 7 unprotected heights, and dangerous machinery, and cannot 8 engage in work requiring continuous near and far vision, but can 9 perform frequent near and far vision tasks. [Plaintiff] can also 10 engage in simple, routine work, meaning she can understand, 11 remember, and carry[ out] simple job instructions, adapt to a 12 routine work setting, use judgment, and interact with others, but 13 would have difficulty engaging in complex or detailed work. 14 (AR at 13 (emphasis omitted).) 15 The ALJ found, at step four, that Plaintiff has the ability to perform her past 16 relevant work as a retail sales clerk. (AR at 17.) 17 In the alternative, at step five, based on Plaintiff s RFC and the VE s 18 testimony, the ALJ also found that there are jobs that exist in significant numbers in 19 the national economy that [Plaintiff] can perform, including plastic roller, racker of 20 bakery products, and basket filler. (AR at 18-19.) Thus, the ALJ concluded that 21 Plaintiff was not suffering from a disability as defined by the Act. (Id. at 9, 19.) 22 Plaintiff filed a timely request for review of the ALJ s decision, which was 23 24 2/ Residual functional capacity is what a claimant can still do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 26 n. 5 (9th Cir. 1989). Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant s 27 residual functional capacity. Massachi v. Astrue, 486 F.3d 1149, 1151 n. 2 (9th 28 Cir. 2007). 3 1 denied by the Appeals Council. (AR at 1-3, 5.) The ALJ s decision stands as the 2 final decision of the Commissioner. 3 III. 4 STANDARD OF REVIEW 5 This Court is empowered to review decisions by the Commissioner to deny 6 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 7 Administration must be upheld if they are free of legal error and supported by 8 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001, as 9 amended Dec. 21, 2001). If the court, however, determines that the ALJ s findings 10 are based on legal error or are not supported by substantial evidence in the record, 11 the court may reject the findings and set aside the decision to deny benefits. 12 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 13 242 F.3d 1144, 1147 (9th Cir. 2001). 14 Substantial evidence is more than a mere scintilla, but less than a 15 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such relevant 16 evidence which a reasonable person might accept as adequate to support a 17 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d 18 at 459. To determine whether substantial evidence supports the ALJ s finding, the 19 reviewing court must review the administrative record as a whole, weighing both 20 the evidence that supports and the evidence that detracts from the ALJ s 21 conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be affirmed 22 simply by isolating a specific quantum of supporting evidence. Aukland, 257 F.3d 23 at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the 24 evidence can reasonably support either affirming or reversing the ALJ s decision, 25 the reviewing court may not substitute its judgment for that of the ALJ. Id. 26 (quoting Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). 27 / / / 28 / / / 4 1 IV. 2 ISSUES PRESENTED 3 Two disputed issues are presented for decision here: 4 1. whether the ALJ properly discounted the lay witness testimony, (see 5 Joint Stip. at 18-22); and 6 2. whether the ALJ properly concluded, at steps four and five, that 7 Plaintiff could perform her past relevant work and other work. (Id. at 3-15.) 8 The Court addresses each argument in turn. 9 V. 10 DISCUSSION AND ANALYSIS 11 A. Lay Witness Statements 12 Plaintiff contends that the ALJ never specifically addressed statements 13 made by Plaintiff s mother Patricia Knapp ( Ms. Knapp ) in a third party report. 14 (Joint Stip. at 21.) Plaintiff argues that the ALJ did not indicate what he accepted 15 or rejected regarding Ms. Knapp s testimony nor did he give germane reasons for 16 rejecting this testimony. (Id.) 17 18 1. Legal Standard [L]ay testimony as to a claimant s symptoms or how an impairment affects 19 ability to work is competent evidence and therefore cannot be disregarded without 20 comment. Stout v. Commissioner, 454 F.3d 1050, 1053 (9th Cir. 2006) (internal 21 quotation marks, ellipses and citation omitted) (italics in original); see Smolen v. 22 Chater, 80 F.3d 1273, 1288 (9th Cir. 1996); see also 20 C.F.R. §§ 404.1513(d)(4) 23 (explaining that Commissioner will consider evidence from non-medical 24 sources[,] including spouses, parents and other caregivers, siblings, other relatives, 25 friends, neighbors, and clergy[,] in determining how a claimant s impairments 26 affect his or her ability to work) & 416.913(d)(4) (same). 27 The ALJ may only discount the testimony of lay witnesses if he provides 28 specific reasons that are germane to each witness. Dodrill v. Shalala, 12 F.3d 915, 5 1 919 (9th Cir. 1993); accord Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) ( Lay 2 testimony as to a claimant s symptoms is competent evidence that an ALJ must take 3 into account, unless he or she expressly determines to disregard such testimony and 4 gives reasons germane to each witness for doing so. ). 5 Finally, where the ALJ s error lies in a failure to properly discuss competent 6 lay testimony favorable to the claimant, a reviewing court cannot consider the error 7 harmless unless it can confidently conclude that no reasonable ALJ, when fully 8 crediting the testimony, could have reached a different disability determination. 9 Stout, 454 F.3d at 1056. 10 2. The ALJ Did Not Err in Rejecting Ms. Knapp s Third Party Report 11 12 The Court finds that the ALJ properly discounted Ms. Knapp s statements. 13 Here, the ALJ assigned minimal weight to Ms. Knapp s statements because of 14 inconsistent statements in her own report. The ALJ found that Ms. Knapp reported 15 that [Plaintiff] is easily distracted, but that [Plaintiff] could follow instructions 16 without distraction. (AR at 12-13.) This conclusion is germane to Ms. Knapp and 17 is supported by substantial evidence. 3/ (Compare id. at 208 (Ms. Knapp s statement 18 that Plaintiff s concentration [is] bad now ) with id. at 209 (Ms. Knapp s statement 19 that Plaintiff is able to follow spoken instructions without distraction )); see Lewis, 20 236 F.3d at 512 (ALJ properly dismissed family members testimony based on 21 inconsistent testimony); Hernandez v. Astrue, 2010 WL 2044531, at *7-*8 (C.D. 22 Cal. 2010) (finding ALJ s rejection of lay witness testimony because of inconsistent 23 statements in her own report was a germane reason). 24 25 3/ The Court also notes that Ms. Knapp s statements are inconsistent with 26 Plaintiff s own testimony. For instance, although Ms. Knapp indicated that Plaintiff attends church once a week, Plaintiff testified that [m]y kids do, I actually don t. 27 (AR at 45, 208; compare id. at 29 (Plaintiff s testimony that she occasionally 28 drives) with id. at 207 (Ms. Knapp s statement that Plaintiff does not drive).) 6 1 Thus, the Court finds that the ALJ gave proper weight to Ms. Knapp s 2 testimony. 3 B. Step-Four and Step-Five Determination 4 Plaintiff argues that the ALJ improperly held that [she] can perform her past 5 relevant work as a Retail Sales Clerk and the additional jobs of Plastic Roller, 6 Bakery Products and Basket Filler. (Joint Stip. at 3 (underlining omitted).) 7 Plaintiff maintains that the ALJ failed to discuss any of the actual physical and 8 mental demands of plaintiff s past relevant work and the job of a Retail Sales 9 Clerk . . . requires Reasoning Level Three skills, which conflict with the ALJ s 10 finding that Plaintiff is limited to simple, routine work. (Id. at 5-7.) 11 With respect to the ALJ s step-five determination, Plaintiff complains that 12 the job of a Plastic Roller requires working with dangerous machinery and requires 13 Reasoning Level Two skills and the jobs of Bakery Products [Racker] and 14 Basket Filler require working with dangerous machinery. (Joint Stip. at 9, 1215 13.) Plaintiff states that [d]ue to [her] RFC that she must avoid dangerous 16 machinery and a limitation to simple, routine work, Plaintiff cannot perform 17 these other jobs. (Id. at 10, 11.) 18 19 20 1. Step-Four Determination a. Legal Standard Although the burden of proof lies with the claimant at step four, the ALJ still 21 has a duty to make the requisite factual findings to support his conclusion. Pinto v. 22 Massanari, 249 F.3d 840, 844 (9th Cir. 2001). To find that a claimant retains the 23 capacity to perform his or her past relevant work, the ALJ must determine whether 24 the claimant can perform: 25 1. The actual functional demands and job duties of a particular 26 past relevant job; or 27 2. The functional demands and job duties of the occupation as 28 generally required by employers throughout the national 7 1 economy. 2 Id. at 845 (quoting Social Security Ruling ( SSR ) 82-61,4/ 1982 WL 31387, at *2). 3 The ALJ may utilize a VE to assist in the determination of whether a plaintiff can 4 perform his or her past relevant work. See 20 C.F.R. §§ 404.1560(b)(2) (VEs and 5 Vocational Specialists5/ can be used at step four to determine whether a claimant can 6 perform past relevant work) & 416.960(b)(2) (same); accord SSR 82-61, 1982 WL 7 31387, at *2; see also SSR 00-4p, 2000 WL 1898704, at *2 (VEs can be utilized by 8 ALJ at administrative hearings to provide vocational evidence). In particular, an ALJ s determination that a plaintiff has the RFC to perform 9 10 his or her past relevant work must contain the following findings of fact: 11 1. A finding of fact as to the individual s RFC. 12 2. A finding of fact as to the physical and mental demands of the 13 past job/occupation. 14 3. A finding of fact that the individual s RFC would permit a 15 return to his or her past job or occupation. 16 SSR 82-62, 1982 WL 31386, at *4; see also Soria v. Callahan, 16 F. Supp. 2d 1145, 17 1151 (C.D. Cal. 1997) ( At step four, the ALJ is obliged to ascertain the demands of 18 the claimant s former work and to compare those demands with present capacity. ). 19 20 21 22 23 24 25 26 4/ The Commissioner issues Social Security Rulings [( SSRs )] to clarify the Act s implementing regulations and the agency s policies. SSRs are binding on all components of the [Social Security Administration]. SSRs do not have the force of law. However, because they represent the Commissioner s interpretation of the agency s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations. Holohan v. Massanari, 246 F.3d 1195, 1203 n. 1 (9th Cir. 2001) (internal citations omitted). 5/ While a VE provides evidence at hearings before an ALJ, a vocational specialist provide[s] evidence to disability determination services (DDS) 28 adjudicators[.] SSR 00-4P, 2000 WL 1898704, at *1. 27 8 1 b. The ALJ Properly Concluded Plaintiff Could Perform Her Past Relevant Work 2 The Court finds that the ALJ s step-four determination is supported by 3 4 substantial evidence. The ALJ found Plaintiff is capable of performing [her] past relevant work as 5 6 a Retail Sales Clerk and properly made findings based on the VE s testimony.6/ 7 (AR at 17); Soria, 16 F. Supp. 2d at 1151. At the hearing, the VE testified that 8 Plaintiff s past relevant work as a floor person at Kmart is reflected in the Dictionary 9 of Occupational Titles ( DOT ) as a retail sales clerk. (AR at 59.) Based on 10 Plaintiff s disability report and work history, the VE stated that she had 11 sufficient information to provide a description of [Plaintiff s] past work both in 12 terms of the complexity and exertional requirements[.] (Id. at 58.) In Plaintiff s work history report, she indicated that as a floor person at Kmart, 13 14 she helped customers, filled shelves[, and] designed displays and occasionally 15 stock[ed] shelves . . . or carr[ied] something for a customer. (AR at 171; see also 16 id. at 146-52, 169-76.) Accordingly, the VE stated that a retail sales clerk requires 17 reasoning level three skills as generally performed, see DOT 290.477-014, but only 18 requires reasoning level two skills as actually performed based on the fact that the 19 20 21 22 23 24 25 26 27 28 6/ Although the ALJ mistakenly summarized that the VE testified that Plaintiff can perform her past relevant work as a Retail Sales Clerk as actually and generally performed, (AR at 18 (emphasis added); see also id. at 59), the ALJ s error is harmless as he properly determined that Plaintiff could perform her past relevant work as actually performed. Pinto, 249 F.3d at 845 ( [C]ourts have never required explicit findings at step four regarding a claimant s past relevant work both as generally performed and as actually performed. The vocational expert merely has to find that a claimant can or cannot continue his or her past relevant work as defined by the [Commissioner s] regulations[.] ) (emphasis in original); see also Villa v. Heckler, 797 F.2d 794, 798 (9th Cir. 1986) (At step four, [t]he claimant has the burden of proving an inability to return to his former type of work and not just to his former job. ). 9 1 file does not indicate cashiering. (AR at 59.) Thus, the ALJ properly relied on the 2 VE s testimony which was based on substantial evidence in the record. Bayliss v. 3 Barnhart, 427 F.3d 1211, 1217-18 (9th Cir. 2005) (ALJ may properly rely on a VE s 4 testimony in rendering a step-four decision). 5 Plaintiff contends that the ALJ s RFC limiting her to simple, routine work 6 correlates only with reasoning level one skills. (Joint Stip. at 11.) However, 7 reasoning level two is compatible with an RFC restricted to simple, routine work.7/ 8 See Lara v. Astrue, 305 Fed.Appx. 324, 326 (9th Cir. 2008) ( [S]omeone able to 9 perform simple, repetitive tasks is capable of doing work requiring more vigor and 10 sophistication in other words, Reasoning Level 2 jobs. ); Scott v. Astrue, 2011 WL 11 1584144, at *6 (C.D. Cal. 2011) (holding that a limitation to simple, repetitive tasks 12 is consistent with reasoning level two jobs); Meissl v. Barnhart, 403 F. Supp. 2d 13 981, 984 (C.D. Cal. 2005) ( Someone able to perform simple, repetitive instructions 14 indicates a level of reasoning sophistication above reasoning level one); Hackett v. 15 Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005) (level two reasoning consistent with 16 limitation to simple and routine tasks); Munoz v. Astrue, 2011 WL 6132955, at *9 17 (C.D. Cal. 2011) (reasoning level two compatible with limitation to simple tasks); 18 Money v. Barnhart, 91 Fed.Appx. 210, 215 (3d Cir. 2004) (finding an RFC limiting 19 the claimant to simple, routine tasks was consistent with work requiring reasoning 20 level two). 21 22 7/ The DOT employs a much more graduated, measured and finely tuned scale 23 than the Social Security regulations, which separate a claimant s ability to 24 understand and remember things and to concentrate into just two categories: short and simple instructions and detailed or complex instructions. Meissl v. 25 Barnhart, 403 F. Supp. 2d 981, 984 (C.D. Cal. 2005) (citing 20 C.F.R. 26 § 416.969a(c)(1)(iii)). A job with a reasoning level of two requires that the worker [a]pply commonsense understanding to carry out detailed but uninvolved written or 27 oral instructions and deal with problems involving a few concrete variables[.] 28 See, e.g., DOT 690.685-498, 1991 WL 678621. 10 1 2 2. Step-Five Determination Plaintiff argues that the other jobs identified by the VE are also inconsistent 3 with Plaintiff s limitations as set forth in her RFC because the job of a Plastic 4 Roller requires working with dangerous machinery and requires Reasoning Level 5 Two skills, Bakery Products [Racker] requires working with dangerous 6 machinery, and Basket Filler requires working with dangerous machinery. (Joint 7 Stip. at 9, 12-13.) 8 The Court concludes that any error in the ALJ s step-five determination is 9 harmless. 10 First, as discussed supra § V.B.1.b, a job requirement of reasoning level two 11 comports with a limitation to simple, routine tasks. 12 Second, it is not apparent that the ALJ s finding that Plaintiff can perform the 13 jobs of plastic roller, bakery products racker, and basket filler is entirely consistent 14 with the ALJ s RFC finding. (See AR at 18-19, 61-62); DOT 690.685-498, 1991 15 WL 678621 (plastic roller occupation requires tending to machine that winds drop 16 cloths from precut lengths of plastic ); DOT 524.687-018, 1991 WL 674400 (racker 17 occupation in the bakery products industry requires [removing] wire rack from 18 overhead trolley conveyor ); DOT 529.687-010, 1991 WL 674737 (basket filler 19 occupation requires removing sealed cans or jars of food products from conveyor, 20 potentially loading basket in layers, using hydraulic mechanism to lower each layer 21 to table level, and moving baskets within plant or through cooling tank using 22 trucks or hoist ). 23 For instance, Defendant claims that the bakery products/racker and basket 24 filler jobs do not require work around moving mechanical parts, vibration, electric 25 shocks, high exposed places, explosives, or toxic chemicals. (Joint Stip. at 17.) 26 Yet, the ALJ s RFC limitation was to dangerous machinery, not moving 27 mechanical parts, vibration, electric shocks, high exposed places, explosives, or 28 toxic chemicals, and the ALJ did not inquire or obtain an explanation for the 11 1 variance. (See AR at 13.) Further, Defendant fails to address Plaintiff s contention 2 that the plastic roller position also requires work around dangerous machinery. (See 3 generally Joint Stip. at 15-18.) 4 In the end though, any error at step five is harmless in light of the ALJ s prior 5 alternative finding at step four, namely, Plaintiff s ability to perform her past 6 relevant work as a retail sales clerk. Cf. Tommasetti v. Astrue, 533 F.3d 1035, 1042 7 (9th Cir. 2008) ( Although the ALJ s step four determination constitutes error, it is 8 harmless in light of the ALJ s alternative finding at step five. ). 9 Based on the foregoing, IT IS ORDERED THAT judgment shall be entered 10 AFFIRMING the decision of the Commissioner denying benefits. 11 12 13 Dated: January 17, 2012 ____________________________________ 14 Hon. Jay C. Gandhi 15 United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 12

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.