Evelyn E Ortiz v. Carolyn W Colvin, No. 5:2014cv00061 - Document 16 (C.D. Cal. 2014)
Court Description: MEMORANDUM AND OPINION by Magistrate Judge Alka Sagar. For all of the foregoing reasons, this Court affirms the decision of the Administrative Law Judge. (See Order for complete details) (afe)
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Evelyn E Ortiz v. Carolyn W Colvin Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 No. ED CV 14-61-AS ) ) ) MEMORANDUM AND OPINION Plaintiff, ) v. ) ) CAROLYN W. COLVIN, ) Acting Commissioner of the Social Security Administration, ) ) ) Defendant. ) ) EVELYN E. ORTIZ, 17 18 PROCEEDINGS 19 20 Plaintiff Evelyn E. Ortiz (“Plaintiff”) asserts disability since 21 February 1, 1998, based on alleged physical impairments. (A.R. 154— 22 161.) 23 heard testimony from Plaintiff and a vocational expert on September 24 11, 2012. (A.R. 28.) 25 decision. (A.R. 15—22.) 26 ALJ’s decision. The Administrative Law Judge (“ALJ”) examined the record and The ALJ denied Plaintiff benefits in a written The Appeals Council denied review of the (A.R. 1—3.) 27 28 1 Dockets.Justia.com 1 On January 22, 2014, Plaintiff filed a Complaint, pursuant to 42 2 U.S.C. 3 Administration 4 Entry No. 3.) 5 Complaint, and the Certified Administrative Record (“A.R.”). 6 Entry Nos. 11, 12.) 7 United States Magistrate Judge. 8 August 6, 2014, the parties filed a Joint Stipulation (“Joint Stip.”) 9 setting 10 § 405(g) and 1383(c), erred in alleging denying her that the disability Social Security benefits. (Docket On May 27, 2014, Defendant filed an Answer to the forth (Docket The parties have consented to proceed before a their respective (Docket Entry Nos. 9, 10.) positions on Plaintiff’s On claim. (Docket Entry No. 14.) 11 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 12 13 “Social Security disability benefits claimants have the burden 14 15 of proving disability.” 16 F.3d 1380, 1380 (9th Cir. 1985). 17 the 18 reason 19 impairment...which 20 continuous 21 § 22 disabled, ALJs follow a five-step process set forth in 20 C.F.R. 23 § 404.1520(a)(4). 24 one through four.” 25 2007). “inability of to any period 423(d)(1)(A). Bellamy v. Sec’y Health & Human Serv., 755 engage in A claimant is disabled if she has any substantial medically determinable has or of In lasted not less order to can than be 12 determine gainful physical expected to months.” whether a activity by or mental last for 42 a U.S.C. claimant is “The claimant bears the burden of proving steps Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 26 27 At step one, the ALJ must determine whether or not the claimant 28 is actually engaged in any “substantial gainful activity,” as defined 2 1 by 2 evaluation continues to step two. 20 C.F.R. § 404.1572. If claimant is not so engaged, the See 20 C.F.R. § 404.1520(a)(4)(i). 3 4 At step two, the ALJ determines whether the claimed physical or 5 mental impairments are severe. 6 determining severity, “the ALJ must consider the combined effect of 7 all of the claimant’s impairments on her ability to function, without 8 regard to whether each alone was sufficiently severe.” Smolen v. 9 Chater, 42 80 F.3d 1273, 423(d)(2)(B)). 20 C.F.R. § 404.1520(a)(4)(ii). 1290 (9th evidence “establishes a slight abnormality that has ‘no more than a 12 minimal effect on an individual’s ability to work.’” 13 (quoting Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988)). 14 the ALJ concludes that the claimant does have a medically severe 15 impairment, the ALJ proceeds to the next step in the sequence.” 16 v. 17 § 404.1520(a)(4)(ii). 683, 686 (9th Cir. severe U.S.C 11 F.3d considered (citing § 433 are 1996) 10 Barnhart, Impairments Cir. When 2005); unless the Id. at 1290 see 20 “[I]f Webb C.F.R. 18 19 At step three, the ALJ considers whether the claimant’s severe 20 impairments are disabling. 21 claimant is considered disabled if her purported conditions meet or 22 are medically equivalent to a listing found in 20 C.F.R. Part 404, 23 Subpart P, Appendix 1. 24 Cir. 2005). 25 impairment in appendix 1 if it is at least equal in severity and 26 duration 27 404.1526. 28 rather to 20 C.F.R. § 404.1520(a)(4)(iii). The Burch v. Barnhart, 400 F.3d 676, 679 (9th “[An] impairment is medically equivalent to a listed the criteria of any listed impairment.” 20 C.F.R. “Medical equivalence must be based on medical findings[]” than “[a] generalized assertion” 3 or opinion testimony 1 regarding “functional problems.” 2 1100 (9th Cir. 1999) (citing 20 C.F.R. § 404.1526). Tackett v. Apfel, 180 F.3d 1094, 3 4 If the ALJ concludes that claimant is not disabled at step 5 three, the ALJ moves to step four and considers whether the claimant 6 can return to her past relevant work. 7 C.F.R. § 404.1520(a)(4)(iv). 8 claimant’s 9 § 404.1520(a)(4)(iv). Residual despite Burch, 400 F.3d at 679; See 20 In order to do so, the ALJ determines Functional Capacity (“RFC”). 20 C.F.R. A claimant’s RFC is “what [claimant] can still 10 do [claimant’s] limitations,” and is “based on 11 relevant medical and other evidence in [the] case record.” 12 416.945(a)(1). 13 her past relevant work, she is not considered disabled. 14 all the F.3d at 679. 20 C.F.R. If the claimant’s RFC dictates that she can return to Burch, 400 15 16 If the claimant proves in step four that she cannot return to 17 her past relevant work, the ALJ proceeds to step five. 18 § 404.1520(a)(4)(v). 19 Secretary to show that the claimant can do other kinds of work.” 20 Embrey v. Bowden, 849 F.2d 418, 422 (9th Cir. 1988). 21 ALJs “can call upon a vocational expert to testify as to: (1) what 22 jobs the claimant, given his or her [RFC], would be able to do; and 23 (2) the availability of such jobs in the national economy.” 24 180 F.3d at 1101. If claimant does not have the RFC to work in any 25 available she 26 § 404.1520(a)(4)(v). jobs, 20 C.F.R. At step five “the burden of proof shifts to the is considered 27 28 4 disabled. At this point, 20 Tackett, C.F.R. 1 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 2 3 In applying for disability insurance benefits, Plaintiff alleged 4 the following disabling severe impairments: carpal tunnel, knee pain, 5 back nerve problem, irritable bowel syndrome, constant pain, and a 6 rotator cuff problem. 7 before the ALJ on September 11, 2012, Plaintiff testified that she 8 had outpatient surgery on her knee, and still has pain in her back, 9 shoulder, and wrists. (A.R. 155.) (A.R. 33—34.) Additionally, at the hearing Plaintiff also claimed that she 10 suffers anxiety attacks and takes Xanax to relieve her symptoms. 11 (A.R. 38—40.) 12 and “large masses” under her breasts (A.R. 37—38.) Moreover, she testified to a growth on her left lung 13 14 The ALJ applied the five-step evaluation process to determine 15 whether Plaintiff was disabled. (A.R. 17—21.) 16 determined not 17 gainful activity.” that Plaintiff was engaged At step one, the ALJ in any “substantially (A.R. 17.) 18 19 At step two, the ALJ found that Plaintiff suffers from the 20 following severe impairments: osteoarthritis of the right knee and 21 back pain. 22 severe, and did not significantly limit her ability to perform basic 23 work activities. 24 lung and masses under her breast were not documented in the medical 25 file. (Id.) The ALJ found that Plaintiff’s anxiety was not (A.R. 17—18.) Moreover, the growth on her left (A.R. 19.) 26 27 28 5 1 At step three, the ALJ determined that Plaintiff’s severe 2 impairments did not meet or equal a medical listing found in 20 3 C.F.R. Part 404, Subpart P, Appendix 1. (A.R. 18.) 4 5 Next, before 6 Plaintiff 7 proceeding to step four, the ALJ found that limitations: had the RFC to perform light work with the following 8 [Plaintiff] can lift and/or carry 20 pounds occasionally and 10- pounds frequently; she can stand and/or walk for two hours out of an eight-hour workday in thirty-minute intervals with regular breaks; she can sit for six hours out of an eight-hour workday with regular breaks; she is unlimited with respect to pushing and/or pulling, other than as indicated for lifting and/or carrying; she is precluded from balancing, crawling, or climbing ladders; she may occasionally stoop, bend, and climb ramps and stairs; and, she is precluded from kneeling on the right knee. 9 10 11 12 13 14 15 16 17 (A.R. 18.) 18 19 At step five, the ALJ summarized the VE’s testimony, stating 20 that the VE had found that Plaintiff could perform the following jobs 21 identified 22 small products assembler II (DOT 739.687-030), (2) cashier II (DOT 23 211.462-010), and (3) bench assembler (DOT 706.684-042). 24 22.) 25 Plaintiff’s age, education, work experience, and RFC, to conclude 26 that the “claimant is capable of making a successful adjustment to 27 other The work in the ALJ that Dictionary then relied exists in of Occupational on the VE’s significant 28 6 Titles (“DOT”): testimony, numbers in (1) (A.R. 21— along the with national 1 economy.” (See id.) Accordingly, the ALJ found that Plaintiff was 2 “not disabled.” (Id.) 3 4 STANDARD OF REVIEW 5 6 This court reviews the Administration’s decision to determine 7 if: (1) the Administration’s findings are supported by substantial 8 evidence; and (2) The Administration used proper legal standards. 9 Smolen, 80 F.3d at 1279. “Substantial evidence is more than a 10 scintilla, but less than a preponderance.” 11 F.3d 1035, 1039 (9th Cir. 1995). 12 evidence supports a finding, “a court must consider [] the record as 13 a 14 detracts from the [Commissioner’s] conclusion.” 15 157 F.3d 715, 720 (9th Cir. 1998). 16 reasonably 17 conclusion, [a] court may not substitute its judgment for that of the 18 ALJ.” 19 Cir. 2004). whole, weighing support both To determine whether substantial evidence either Andrews v. Shalala, 53 that supports and evidence that Reddick v. Chater, As a result, “[i]f evidence can affirming or reversing the ALJ’s Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th 20 PLAINTIFF’S CONTENTION 21 22 23 Plaintiff contends that there is a DOT inconsistency in the 24 ALJ’s holding that the Plaintiff can perform jobs such as small 25 products assembler II, cashier II, and bench assembler. 26 3.) 27 Plaintiff’s RFC that she could stand or walk for only two hours out 28 of an eight-hour day, the DOT indicates that all three of these jobs (Joint Stip. Specifically, Plaintiff alleges that while the ALJ determined in 7 1 require Plaintiff to stand or walk for a total of six hours in an 2 eight-hour workday. (Id.) 3 DISCUSSION 4 5 After consideration of the record as a whole, the Court finds 6 that 7 evidence and are free from material 1 legal error. the Commissioner’s findings are supported by substantial 8 An 9 ALJ may not rely on a VE’s testimony regarding the 10 requirements of a particular job without first inquiring whether the 11 testimony 12 Massachi v. Astrue, 486 F.3d 1149, 1152—53 (9th Cir. 2007). 13 the ALJ determined that Plaintiff had the RFC to perform “light work” 14 but with various exertional limitations, including limiting Plaintiff 15 to 16 workday. 17 hypothetical to the VE that included all of Plaintiff’s physical 18 limitations, including her ability to stand and/or walk for no more 19 than two hours out of an eight hour work day. 20 testified that a person with Plaintiff’s limitations could perform 21 the 22 assembler. conflicts standing jobs and/or (A.R. of with walking 18.) small the DOT, for During products (A.R. 50—51.) and two the if so, hours out hearing, assembler II, why of the it an ALJ conflicts. eight-hour presented (A.R. 40.) cashier Here, II, and a The VE bench The VE also eroded the number of jobs 23 24 25 1 26 27 28 The harmless error rule applies to the review of administrative decisions regarding disability. See McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (stating that an ALJ’s decision will not be reversed for errors that are harmless). 8 1 available 2 Plaintiff’s limitations. regionally and in the national economy to reflect (A.R. 40—41.) 2 3 4 Plaintiff premises her argument on Social Security Ruling 5 (“SSR”) 6 carrying requires being on one’s feet up to two-thirds of a workday, 7 the full range of light work requires standing and walking, off and 8 on, for a total of approximately 6 hours of an 8-hour workday.” 9 83-10, 83-10, 1983 which specifies WL 31251, at that *6 “[s]ince (emphasis frequent added); lifting 20 or SSR C.F.R. 10 §§ 404.1567(b), 416.967(b). 11 is incorrect. 12 and/or walking for all jobs classified as light work, it merely 13 describes the activities that would be required of a person that is 14 able to perform the full range of light work. 15 this case found that Plaintiff’s limitations, including the standing 16 and walking limitations, did not allow her to perform the full range 17 of light work. 18 Admin., No. CV 07-30-E-LMB, 2008 WL 754275, at *4 (D. Idaho Mar. 19, 19 2008) 20 functional 21 exertional categories of work.”) (citation omitted).) (“[T]here Plaintiff’s interpretation of SSR 83-10 SSR 83-10 does not require six hours of standing Moreover, the ALJ in (A.R. 21; see also Boster v. Comm’r, Soc. Sec. will capacity be will instances not fit where a precisely claimant’s within one residual of the 22 23 “The DOT lists maximum requirements of occupations as generally 24 performed, not the range of requirements of a particular job as it is 25 26 27 28 2 The VE eroded the number of small products assembler II jobs by 80%, leaving 1,800 positions regionally and 16,000 nationally; the number of Cashier II jobs by 50%, leaving 2,250 regionally and 50,000 nationally; and the number of bench assembler jobs by 80%, leaving 500 positions regionally and 7,000 nationally. (A.R. 40-41.) 9 1 performed in specific settings. 2 able to provide more specific information about jobs or occupations 3 than the DOT.” 4 base her testimony on a hypothetical individual that was capable of 5 performing the full range of light work. 6 considered 7 hypothetical question posed by the ALJ, and reduced the number of 8 jobs available to an individual with those limitations. 9 41.) A [vocational expert] . . . may be SSR 00-4P, 2000 WL 1898704, at *3. the limitations on The VE did not On the contrary, the expert light work, included in the (A.R. 40— Moreover, the ALJ asked the VE whether the jobs were consistent (A.R. 41.) 3 10 with the DOT, and the VE answered in the affirmative. 11 Thus, the ALJ properly relied on the VE’s testimony because the 12 hypothetical presented to the VE considered all of the claimant’s 13 limitations 14 Barnhart, 278 F.3d 947, 956 (9th Cir. 2002) (considering VE testimony 15 reliable 16 functional limitations); Bayliss v. Barnhart, 427 F.3d 1211, 1218 17 (9th Cir. 2005) (“A VE’s recognized expertise provides the necessary 18 foundation for his or her testimony.”). 19 / / 20 / / 21 / / if that the were supported hypothetical by posed the record. includes all See of Thomas v. claimant’s 22 23 3 24 25 26 27 28 Although the VE did not explicitly state that the erosion identified was due to Plaintiff’s standing and walking limitations, such a conclusion can be reasonably implied from the context of the expert’s testimony. See Light v. Social Sec. Admin., 119 F.3d 789, 793 (9th Cir. 1997) (“[e]vidence sufficient to permit ... a deviation [between the vocational expert's testimony and the DOT] may be either specific findings of fact regarding the claimant’s residual functionality, or inferences drawn from the context of the expert's testimony”). 10 1 CONCLUSION 2 3 There is no inconsistency between the ALJ’s RFC assessment and 4 the finding that Plaintiff can perform the jobs identified by the VE. 5 Accordingly, the ALJ’s decision was supported by substantial evidence 6 in the record. 7 8 ORDER 9 10 11 For all of the foregoing reasons, this Court affirms decision of the Administrative Law Judge. 12 13 LET JUDGMENT BE ENTERED ACCORDINGLY. 14 15 16 17 Dated: December 15, 2014. ____________/s/_______________ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 11 the
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