Michael Townsend v. Michael J Astrue, No. 5:2012cv02023 - Document 19 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Plaintiff Michael Townsend filed this action on November 26, 2012. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge. (Dkt. Nos. 7, 9.) On September 12, 2013, the parties filed a Joint Stipulation (JS) that addressed the disputed issues. The court has taken the matter under submission without oral argument. Having reviewed the entire file, the court affirms the decision of the Commissioner. IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. (See Order for details.) (mp)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 NO. EDCV 12-2023 AGR 17 ) ) ) ) ) ) ) ) ) ) ) ) 18 Plaintiff Michael Townsend filed this action on November 26, 2012. MICHAEL TOWNSEND, 12 Plaintiff, 13 v. 14 15 16 CAROLYN W. COLVIN, Commissioner of Social Security, Defendant. MEMORANDUM OPINION AND ORDER 19 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the 20 magistrate judge. (Dkt. Nos. 7, 9.) On September 12, 2013, the parties filed a 21 Joint Stipulation ( JS ) that addressed the disputed issues. The court has taken 22 the matter under submission without oral argument. 23 24 25 26 27 28 Having reviewed the entire file, the court affirms the decision of the Commissioner. 1 I. 2 PROCEDURAL BACKGROUND 3 On August 18, 2008, Townsend filed applications for disability insurance 4 benefits and supplemental security income benefits. Both applications alleged an 5 onset date of December 30, 2004. AR 27, 88. The applications were denied 6 initially and upon reconsideration. AR 81-84. Townsend requested a hearing 7 before an Administrative Law Judge ( ALJ ). AR 22. On March 30, 2010, the 8 ALJ conducted a hearing at which Townsend, a medical expert and a vocational 9 expert ( VE ) testified. AR 61-80. On May 11, 2010, the ALJ issued a decision 10 denying benefits. AR 85-96. On January 25, 2011, the Appeals Council granted 11 Townsend s request for review, vacated the hearing decision and remanded the 12 case to the ALJ to evaluate Townsend s alcohol abuse, consider state agency 13 physician Dr. Skopec s opinion, offer Townsend an opportunity for hearing and 14 take any further action needed to complete the administrative record and issue a 15 decision. AR 100-02. 16 On June 2, 2011, on remand, the ALJ conducted a hearing at which 17 Townsend, a medical expert and VE testified. AR 39-60. On June 17, 2011, the 18 ALJ issued a decision denying benefits. AR 24-34. On September 20, 2012, the 19 Appeals Council denied the request for review. AR 1-6. This action followed. 20 II. 21 STANDARD OF REVIEW 22 Pursuant to 42 U.S.C. § 405(g), this court reviews the Commissioner s 23 decision to deny benefits. The decision will be disturbed only if it is not supported 24 by substantial evidence, or if it is based upon the application of improper legal 25 standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam); 26 Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 27 28 Substantial evidence means more than a mere scintilla but less than a preponderance it is such relevant evidence that a reasonable mind might 2 1 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 2 determining whether substantial evidence exists to support the Commissioner s 3 decision, the court examines the administrative record as a whole, considering 4 adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the 5 evidence is susceptible to more than one rational interpretation, the court must 6 defer to the Commissioner s decision. Moncada, 60 F.3d at 523. 7 III. 8 DISCUSSION 9 A. Disability 10 A person qualifies as disabled, and thereby eligible for such benefits, only 11 if his physical or mental impairment or impairments are of such severity that he is 12 not only unable to do his previous work but cannot, considering his age, 13 education, and work experience, engage in any other kind of substantial gainful 14 work which exists in the national economy. Barnhart v. Thomas, 540 U.S. 20, 15 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003). 16 B. 17 The ALJ found that Townsend met the insured status requirements for 18 19 The ALJ s Findings purposes of disability insurance benefits through June 30, 2007. AR 29. Townsend had the severe impairments of visual loss, asthma (controlled), 20 alcohol dependence and depressive disorder, not otherwise specified. Id. He 21 had the residual functional capacity ( RFC ) to perform medium work except that 22 he can lift and carry 50 pounds occasionally and 25 pounds frequently; stand 23 and walk six hours in an eight-hour day; sit six hours in an eight-hour day; does 24 not need an assistive device for ambulation; cannot climb ladders, ropes, or 25 scaffolds; cannot balance; has monocular vision that precludes tasks involving 26 fine visual details such as newsprint or smaller; should be in an air-conditioned 27 environment free of excessive inhaled pollutants, including cigarettes; limited to 28 simple repetitive tasks; must be in a nonpublic setting; no hypervigilance; and no 3 1 fast-paced work. AR 30. Although Townsend was unable to perform any past 2 relevant work, there were jobs that existed in significant numbers that Townsend 3 could perform, such as warehouse worker, hand packer, and food and beverage 4 order clerk. AR 32-33. 5 C. 6 Townsend contends that the three jobs identified by the VE warehouse 7 worker (DOT No. 922.687-058), hand packer (DOT No. 920.587-018), and food 8 and beverage order clerk (DOT No. 205.387-014) are inconsistent with his 9 RFC. 10 Step Five of the Sequential Analysis At step five of the sequential analysis, the Commissioner bears the burden 11 of demonstrating there is other work in significant numbers in the national 12 economy the claimant can do. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th 13 Cir. 2006). If the Commissioner satisfies this burden, the claimant is not disabled 14 and not entitled to disability benefits. If the Commissioner cannot meet this 15 burden, the claimant is disabled and entitled to disability benefits. Id. 16 There are two ways for the Commissioner to meet the burden of showing 17 that there is other work in significant numbers in the national economy that 18 claimant can do: (1) by the testimony of a vocational expert, or (2) by reference 19 to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2. Id. 20 [A]n ALJ may [not] rely on a vocational expert s testimony regarding the 21 requirements of a particular job without first inquiring whether the testimony 22 conflicts with the [DOT]. 1 Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 23 2007); see also Bray v. Comm r of Soc. Sec. Admin., 554 F.3d 1219, 1234 (9th 24 Cir. 2009). Social Security Ruling 00-4p requires the ALJ to first determine 25 whether a conflict exists between the DOT and the VE s testimony, and then 26 determine whether the [VE s] explanation for the conflict is reasonable and 27 28 1 The DOT raises a rebuttable presumption as to job classification. Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995). 4 1 whether a basis exists for relying on the expert rather than the [DOT]. 2 2 Massachi, 486 F.3d at 1153. 3 In evaluating the VE s explanation for the conflict, an ALJ may rely on 4 expert testimony which contradicts the DOT, but only insofar as the record 5 contains persuasive evidence to support the deviation. Johnson, 60 F.3d at 6 1435. The ALJ s explanation is satisfactory if the ALJ s factual findings support a 7 deviation from the DOT and persuasive testimony of available job categories 8 matches the specific requirements of a designated occupation with the specific 9 abilities and limitations of the claimant. Id. at 1435. Remand may not be 10 necessary if the procedural error is harmless, i.e., when there is no conflict or if 11 the VE provided sufficient support for her conclusion to justify any potential 12 conflicts. Massachi, 486 F.3d at 1154 n.19. 13 Townsend points to the ALJ s RFC that (a) his monocular vision precludes 14 tasks involving fine visual details such as newsprint or smaller; (b) he is limited to 15 simple repetitive tasks; (c) his work must be in a non-public setting; and (d) he is 16 precluded from fast-paced work. AR 30. The Commissioner contends any error 17 is harmless because he can perform the job of warehouse worker. JS at 18-19. 18 Townsend does not contend that the warehouse worker job would be precluded 19 by the limitations to simple repetitive tasks or a non-public setting. JS at 11-13. 20 The ALJ precluded tasks involving fine visual details such as newsprint or 21 smaller. AR 30. The ALJ noted that Townsend has 20/100 visual acuity with 22 clear corneas and grossly normal visual fields, and is able to drive with corrective 23 24 25 26 27 28 2 Social Security rulings do not have the force of law. Nevertheless, they constitute Social Security Administration interpretations of the statute it administers and of its own regulations, and are given deference unless they are plainly erroneous or inconsistent with the Act or regulations. Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989) (footnotes omitted). 5 1 lenses.3 AR 93-94; see AR 32 (adopting discussion and findings related to 2 physical impairments in prior decision). According to the DOT, the job of 3 warehouse worker requires frequent near acuity and frequent depth perception. 4 Near acuity is defined as clarity of vision at 20 inches or less. Dep t of Labor, 5 Selected Characteristics of Occupations Defined in the Revised Dictionary of 6 Occupational Titles, App. C (1993 ed.). 7 The DOT s description of the warehouse worker job does not require fine 8 visual detail such as newsprint or smaller, and such a limitation does not mean 9 that a person is unable to see clearly at 20 inches or less. Because the ALJ did 10 not impose a limitation on near acuity or depth perception and the record does 11 not establish such limitations, Townsend has not demonstrated an actual or 12 apparent conflict between the VE s testimony and the DOT with respect to visual 13 limitations. See Banawa v. Astrue, 2011 U.S. Dist. LEXIS 4787, *30-*32 (S.D. 14 Cal. Jan. 19, 2011). 15 The ALJ precluded fast paced work. AR 30. The VE testified that the 16 limitation of no fast paced work precludes work on a conveyor line. AR 51. The 17 VE testified that Townsend could be a warehouse worker. AR 50. Townsend 18 argues that the DOT job description states that a warehouse worker performs 19 any combination of the following tasks, including: Fills requisitions, work 20 orders, or requests for materials, tools, or other stock items and distributes items 21 to production workers or assembly line. (Exh. 1 to JS.). An assembly line is not 22 necessarily the same as a conveyor belt. In any event, there is no indication the 23 work is fast paced. Townsend has not demonstrated an actual or apparent 24 conflict between the VE s testimony and the DOT. See Woodbury v. Astrue, 25 2011 U.S. Dist. LEXIS 132209 (C.D. Cal. Nov. 16, 2011) (ALJ did not err in 26 27 28 3 Townsend testified that he is able to drive a car except that he does not drive at night. AR 68. Townsend s reports state that he is able to cook, watch TV, play games on a playstation and do household chores. AR 248, 250, 252. 6 1 finding claimant could perform production helper job even though RFC precluded 2 fast paced work and one possible task of production helper is to remove material 3 from food on conveyor belt); see also Lair v. Colvin, 2013 U.S. Dist. LEXIS 4 42920, *14-*15 (C.D. Cal. Mar. 25, 2013) (DOT does not require that claimant be 5 able to perform all of the listed duties). 6 D. Credibility 7 To determine whether a claimant s testimony regarding subjective pain or 8 symptoms is credible, an ALJ must engage in a two-step analysis. Lingenfelter 9 v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). At step one, the ALJ must 10 determine whether the claimant has presented objective medical evidence of an 11 underlying impairment which could reasonably be expected to produce the pain 12 or other symptoms alleged. Id. (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 13 (9th Cir. 1991) (en banc)). The ALJ found that Townsend s medically 14 determinable impairments could reasonably be expected to produce the alleged 15 symptoms. AR 31. 16 Second, if the claimant meets this first test, and there is no evidence of 17 malingering, the ALJ can reject the claimant s testimony about the severity of her 18 symptoms only by offering specific, clear and convincing reasons for doing so. 19 Lingenfelter, 504 F.3d at 1036 (citation and quotation marks omitted). In making 20 a credibility determination, the ALJ must specifically identify what testimony is 21 credible and what testimony undermines the claimant s complaints[.] Greger v. 22 Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (citation omitted). The ALJ found that 23 Townsend s statements concerning the intensity, persistence and limiting effects 24 of the alleged symptoms were not credible to the extent they were inconsistent 25 with the RFC. AR 31. 26 In weighing credibility, the ALJ may consider factors including: the nature, 27 location, onset, duration, frequency, radiation, and intensity of any pain; 28 precipitating and aggravating factors (e.g., movement, activity, environmental 7 1 conditions); type, dosage, effectiveness, and adverse side effects of any pain 2 medication; treatment, other than medication, for relief of pain; functional 3 restrictions; the claimant s daily activities; and ordinary techniques of credibility 4 evaluation. Bunnell, 947 F.2d at 346 (citing Social Security Ruling 88-13) 5 (quotation marks omitted). The ALJ may consider (a) inconsistencies or 6 discrepancies in a claimant s statements; (b) inconsistencies between a 7 claimant s statements and activities; (c) exaggerated complaints; and (d) an 8 unexplained failure to seek treatment. Thomas, 278 F.3d at 958-59. 9 The ALJ discounted Townsend s credibility for two reasons: (1) 10 Townsend s admitted, continued alcohol abuse jeopardizes medication 11 compliance and efficacy; and (2) the objective medical evidence does not support 12 the degree of alleged limitations. AR 32, 92, 94. 13 Townsend testified that he is supposed to take his medications every day. 14 AR 55. However, he does not do so because the medications cannot be taken 15 with alcohol and he would say he drinks at least one 40-ounce beer every other 16 day. Id. An ALJ may discount a claimant s credibility based on a failure to follow 17 prescribed treatment. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). 18 Townsend does not dispute that the objective medical evidence does not 19 support the alleged severity of his symptoms. Although lack of medical evidence 20 cannot form the sole basis for discounting pain testimony, it is a factor that the 21 ALJ can consider in his credibility analysis. Burch v. Barnhart, 400 F.3d 676, 22 681 (9th Cir. 2005). Here, it is not the sole basis for the ALJ s credibility finding. 23 The ALJ did not err. 24 25 26 27 28 8 1 IV. 2 ORDER 3 4 5 6 IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment herein on all parties or their counsel. 7 8 9 DATED: October 3, 2013 ALICIA G. ROSENBERG United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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