Joaquin Lopez v. Commissioner of Social Security, No. 5:2015cv00976 - Document 20 (C.D. Cal. 2016)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Douglas F. McCormick: For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. See document for further information. (lwag)
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Joaquin Lopez v. Commissioner of Social Security Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 JOAQUIN LOPEZ, Plaintiff, 12 13 14 15 16 17 18 v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. ) Case No. ED CV 15-00976-DFM ) ) ) MEMORANDUM OPINION AND ) ) ORDER ) ) ) ) ) ) ) Plaintiff Joaquin Lopez (“Lopez” or “Plaintiff”) appeals from the final 19 decision of the Administrative Law Judge (“ALJ”) denying his application for 20 disability insurance benefits and supplemental social security income benefits. 21 For the reasons stated below, the ALJ’S decision is affirmed. 22 I. 23 FACTUAL AND PROCEDURAL BACKGROUND 24 Lopez applied for disability insurance benefits and supplemental social 25 security income in June 2012, alleging disability beginning November 19, 26 2008. Administrative Record (“AR”) 180-97. His claims were denied initially 27 and again upon reconsideration, at which point Lopez requested a hearing 28 before the ALJ. See AR 127-31, 135-40. Dockets.Justia.com 1 Lopez testified in the ALJ hearing that he stopped working when he was 2 hit by a truck in 2008. AR 38-40. He testified that as a result of this accident, 3 he broke both legs, cracked his pelvis, had stomach surgeries, and multiple 4 hernias. AR 40. Lopez’s medical records confirm that on November 20, 2008, 5 he was admitted to a hospital with numerous severe injuries and an alcohol 6 level of 0.31 after being hit by a truck while riding his bicycle. See AR 263-65. 7 Lopez testified that he cannot walk without a walker due to nerve problems in 8 his left foot, and that he trips unless he keeps a brace on his foot. AR 41. Lopez 9 testified that his doctor prescribed a wheelchair after the truck hit him, but later 10 changed the prescription to a walker to help Lopez lose weight. AR 43-44. 11 Lopez testified that he uses the walker every time he leaves his house, and uses 12 the furniture or walls to support himself when he moves around inside the 13 house. AR 44. Lopez also testified that he rides a bicycle once a week. AR 53. 14 He rides his bicycle downhill in the quarter mile from his house to the bus 15 stop, and sometimes walks but sometimes rides his bicycle uphill on the way 16 back. AR 56. 17 Applying the five-step sequential evaluation process, the ALJ found at 18 step two that Lopez had the severe impairments of “left foot drop; bilateral 19 femur fracture; left pelvis fracture; status post left total hip replacement; 20 scapula and rib fracture; thoracic vertebral fracture with neck, back and 21 shoulder pain, hepatitis C; ventral and inguinal hernia, status post hernia 22 surgical repair; history of pneumothorax; gastroesophageal reflux disease; 23 esophageal ulcer; asthma; and obesity.” AR 16. 24 At step four, the ALJ concluded that Lopez had the residual functional 25 capacity (“RFC”) to perform light work with certain restrictions, including 26 standing and walking for two hours during an eight-hour workday. AR 18. The 27 ALJ found that Lopez’s testimony about his inability to walk without a walker 28 was less than fully credible. AR 19. The ALJ noted that while Lopez’s medical 2 1 records reflected that he came into appointments with a walker on a few 2 occasions, the record also demonstrated that he could ride his bicycle and 3 engaged in exercise on a regular basis. AR 19; see AR 1110 (noting that as of 4 November 2011, Lopez exercised 150 or more minutes for five days a week at 5 a moderate or strenuous level); AR 1114 (noting that as of December 2011, 6 Lopez exercised 120 minutes for five days a week at a moderate or strenuous 7 level). The ALJ acknowledged that Lopez’s medical records reflected multiple 8 falls, but noted that records from February 2013 showed that Lopez’s falls 9 occurred because he was not wearing his brace, and that on these occasions 10 Lopez was walking without a walker. AR 19; see AR 1576 (“Falls occurred 11 both indoors and outdoors without assistive device. Usually falls when not 12 wearing ankle foot orthosis due to foot drop.”). 13 The ALJ used a vocational expert to determine the extent to which 14 Lopez’s inability to perform all or substantially all of the requirements of light 15 work eroded the occupational base. See AR 25-26. The vocational expert 16 testified that, even with the two-hour limitation on standing and walking, 17 Lopez could perform work as an electronic worker, bench assembler, and 18 production assembler—and that even at fifty percent erosion, approximately 19 58,000 of these jobs existed in the national economy and 800 existed in the 20 regional economy. See AR 26; AR 67-69. Relying on this testimony, the ALJ 21 concluded at step five that Lopez was not disabled because there was work 22 available in significant numbers in the national and regional economy which 23 he could perform despite his impairments. AR 25-26. 24 II. 25 ISSUE PRESENTED 26 The parties present two issues. First, the parties dispute whether the ALJ 27 properly classified Lopez’s RFC as one for “light work” while limiting him to 28 standing or walking for two hours in an eight-hour day. See Joint Stipulation 3 1 (“JS”) at 4. Second, the parties dispute whether the ALJ erred by failing to 2 include Lopez’s stated need for a walker in the RFC finding. Id. 3 III. 4 DISCUSSION 5 A. Standard of Review 6 Under 42 U.S.C. § 405(g), a district court may review the 7 Commissioner’s decision to deny benefits. The ALJ’s findings and decision 8 should be upheld if they are free from legal error and are supported by 9 substantial evidence based on the record as a whole. Parra v. Astrue, 481 F.3d 10 742, 746 (9th Cir. 2007). Substantial evidence means such relevant evidence as 11 a reasonable person might accept as adequate to support a conclusion. 12 Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter v. Astrue, 504 13 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla, but less than a 14 preponderance. Id. To determine whether substantial evidence supports a 15 finding, the reviewing court “must review the administrative record as a whole, 16 weighing both the evidence that supports and the evidence that detracts from 17 the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th 18 Cir. 1998). “If the evidence can reasonably support either affirming or 19 reversing,” the reviewing court “may not substitute its judgment” for that of 20 the Commissioner. Id. at 720-21. 21 B. RFC Classification 22 The parties agree that Lopez’s RFC falls somewhere between light and 23 sedentary work. See JS at 5, 9. The parties also appear to agree that, had Lopez 24 been classified as sedentary, the medical-vocational grids would have resulted 25 in his being classified as disabled. See JS at 6-8. But the parties disagree as to 26 whether the ALJ should have classified Lopez’s RFC as “sedentary” instead of 27 “light,” given that Lopez was restricted to no more than two hours of walking 28 or sitting a day. See JS at 4-11. 4 The Social Security Administration regulations describe “sedentary 1 2 work” as involving “sitting, [although] a certain amount of walking and 3 standing is often necessary in carrying out job duties. Jobs are sedentary if 4 walking and standing are required occasionally and other sedentary criteria are 5 met.” 20 C.F.R. §§ 404.1567, 416.967. A job is in the “light work” category 6 even though the “weight lifted may be very little . . . when it requires a good 7 deal of walking or standing, or . . . sitting most of the time with some pushing 8 and pulling of arm or leg controls.” Id. (emphasis added). While the “primary 9 difference between sedentary and most light jobs” is that “most” light jobs 10 require a “good deal” of walking and sitting, some light jobs do involve “sitting 11 most of the time” with some pushing and pulling of arm-hand or leg-foot 12 controls, which require greater exertion than in sedentary work. Social 13 Security Ruling (“SSR”) 83-10, 1983 WL 31251, at *5 (Jan. 1, 1983). Lopez’s limitations placed him between the definitions of light and 14 15 sedentary work. The ALJ therefore properly consulted a vocational expert 16 regarding whether Lopez could perform substantial, gainful work in the 17 economy. See SSR 83–12(2)(c), 1983 WL 31253, at *3 (Jan. 1, 1983) (“In 18 situations where the rules would direct different conclusions, and the 19 individual’s exertional limitations are somewhere ‘in the middle’ in terms of 20 the regulatory criteria for exertional ranges of work, ... [vocational specialist] 21 assistance is advisable for these types of cases.”); Moore v. Apfel, 216 F.3d 22 864, 870 (9th Cir. 2000) (“SSR 83–12 directs that when a claimant falls 23 between two grids, consultation with a [vocational expert] is appropriate.”). As 24 noted above, the vocational expert opined that, even with the two-hour 25 limitation on walking and at fifty percent erosion, approximately 58,000 light 26 duty jobs fitting this restriction existed in the national economy and 800 27 existed in the regional economy. See AR 26; AR 67-69. 28 /// 5 Lopez argues that the ALJ should have automatically classified Lopez as 1 2 limited to sedentary work under SSR 83-12 because of the two-hour limitation 3 on walking and sitting. See JS at 5-6. Lopez cites one Western District of 4 Washington case, Merritt v. Colvin, for support. No. 14-05964, 2015 WL 5 4039355 (W.D. Wash. July 2, 2015). In that case, the district court held that a 6 two-hour limitation on standing and walking was “significant” enough to 7 automatically “better coincide[] with the sedentary exertional work level.” Id. 8 at *6. 9 This Court disagrees with the holding in Merritt. Based on that holding, 10 any person who cannot walk or stand for more than two hours in a day should 11 be classified as sedentary. That is not what the law requires or the Social 12 Security Rulings reflect, contrary to Lopez’s argument that SSR 83-12 stands 13 for the proposition that an ALJ may not classify a person with a two-hour 14 walking and standing limitation at the lower exertion level. See JS at 5-6. In 15 fact, SSR 83-12 states that “if the exertional capacity is significantly reduced in 16 terms of the regulatory definition, it could indicate little more than the 17 occupational base for the lower rule and could justify a finding of ‘Disabled.’” 18 SSR 83-12 at 2. This language is not a mandate, but a reminder to the ALJ to 19 consider whether a limitation is so significant that the person should be 20 classified at a lower level of exertion. If a two-hour limitation on standing and 21 walking automatically resulted in a sedentary classification, the regulations 22 would so provide. Instead, the regulations specifically recognize that certain 23 light duty jobs will involve “sitting most of the time.” 20 C.F.R. §§ 24 404.1567(b), 416.967(b). 25 Here, the ALJ considered the evidence before him and determined that 26 Lopez’s limitations were not so significant to warrant a “sedentary” 27 classification. Numerous other courts have found no fault with “light work” 28 classifications with two-hour limitations on walking and standing. See, e.g., 6 1 Martinez v. Colvin, No. 14-1703, 2016 WL 270911, at *3 (D. Or. Jan. 20, 2 2016); Avilez v. Colvin, No. 14-732, 2015 WL 1966916, at *6 (C.D. Cal. Apr. 3 30, 2015); Ortiz v. Colvin, No. 14-61, 2014 WL 7149544, at *4 (C.D. Cal. Dec. 4 15, 2014); Dills v. Astrue, No. 09-1380, 2011 WL 1600691, at *7 (D. Or. Apr. 5 27, 2011). Lopez does not dispute that he is able to perform the jobs identified 6 by the vocational expert, and identifies no inconsistency between the ALJ’s 7 RFC assessment and the finding that Lopez can perform those jobs. Remand is 8 not warranted on this basis. 9 10 C. Lopez’s Alleged Need for a Walker Lopez also argues that the ALJ improperly failed to include, and failed 11 to explain the exclusion of, Lopez’s alleged need for a walker in the ALJ’s 12 RFC finding. See JS at 11. 13 Lopez misstates the record. The ALJ explained that the medical 14 evidence conflicted, and that he did not find Lopez’s claim that he needed to 15 use a walker credible. In reaching this conclusion, the ALJ explained: 16 The claimant has provided inconsistent statements regarding 17 his abilities. The claimant testified he was unable to walk or stand 18 without assistance from use of a walker or wheelchair. The records 19 do document on a few occasions that the claimant came into the 20 appointment with a walker. However, the records also document 21 that the claimant was able to ride his bicycle, and engaged in 22 moderate to strenuous exercises five days a week for an hour 23 twenty minutes . . . The claimant testified at the hearing he only 24 rode his bike down the hill to catch a bus. He stated he only 25 sometimes got off his bike to walk it up the hill, which suggests 26 that there are some occasions, the claimant bikes up the hill. The 27 claimant has claimed that he has fallen multiple times, and the 28 records do note multiple incidents . . . however, the records also 7 1 indicate that these falls occurred primarily because the claimant 2 was not using an assistive device and was not using his left foot 3 brace . . . The undersigned has found that although there are 4 reference [sic] about use of an assistive device, the claimant’s 5 ability to ride a bike is inconsistent with the need to use a walker 6 or wheelchair. 7 8 AR at 19-20. Lopez does not attack the ALJ’s credibility finding, but rather argues 9 that the ALJ did not explain why it did not reference Lopez’s alleged need for 10 a walker in the RFC. See JS at 11-16. The ALJ properly weighed the medical 11 evidence of record in assessing whether Lopez required a walker during the 2 12 hours of standing and walking during a workday. See Sample v. Schweiker, 13 694 F.2d 639, 642 (9th Cir.1982) (noting it is ALJ’s role to resolve conflicting 14 medical reports and opinions); Magallanes v. Bowen, 881 F.2d 747, 750 (9th 15 Cir. 1989) (noting it is ALJ’s responsibility to determine credibility and resolve 16 conflicts or ambiguities in the evidence). This Court will not disturb the ALJ’s 17 finding in this regard. 18 IV. 19 CONCLUSION 20 21 For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. 22 23 Dated: February 3, 2016 24 ______________________________ DOUGLAS F. McCORMICK United States Magistrate Judge 25 26 27 28 8
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