Pamala Dupsloff v. Nancy A. Berryhill, No. 5:2017cv01274 - Document 22 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Gail J. Standish. For all of the foregoing reasons, IT IS ORDERED that the decision of the Commissioner finding Plaintiff not disabled is AFFIRMED. (ec)
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Pamala Dupsloff v. Nancy A. Berryhill Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 PAMALA DUPSLOFF, Case No. 5:17-cv-01274-GJS Plaintiff v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, 15 MEMORANDUM OPINION AND ORDER Defendant. 16 17 18 I. PROCEDURAL HISTORY Plaintiff Pamala Dupsloff (“Plaintiff”) filed a complaint seeking review of the 19 decision of the Commissioner of Social Security denying her applications for 20 Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). 21 The parties filed consents to proceed before the undersigned United States 22 Magistrate Judge [Dkts. 20 and 21] and a joint stipulation addressing disputed issues 23 in the case [Dkt. 18 (“Jt. Stip.”)]. The matter is now ready for decision. For the 24 reasons discussed below, the Court finds that this matter should be affirmed. 25 26 II. ADMINISTRATIVE DECISION UNDER REVIEW 27 Plaintiff filed an application for SSI in August 2012, and an application for 28 DIB in April 2013. [Dkt. 14, Administrative Record (“AR”) 12, 60, 110, 177-86, Dockets.Justia.com 1 187-93.] Both applications alleged disability beginning on October 1, 2011. [AR 2 12, 177, 187.] Plaintiff’s applications were denied at the initial level of review and 3 on reconsideration. [AR 12, 114-18, 121-25.] A hearing was held before 4 Administrative Law Judge Joseph P. Lisiecki III (“the ALJ”) on January 19, 2016. 5 [AR 26-58.] 6 On January 29, 2016, the ALJ issued an unfavorable decision applying the 7 five-step sequential evaluation process to assess disability [AR 12-19]. See 20 8 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). At step one, the ALJ found Plaintiff had 9 not engaged in substantial gainful activity since her alleged onset date [AR 14]. At 10 step two, the ALJ determined that Plaintiff suffered from the severe impairments of 11 degenerative disc disease of the cervical and lumbar spine, cervical and lumbar 12 musculoligamentous strain, radiculopathy, patellofemoral pain syndrome in the 13 bilateral knees, status-post carpal tunnel release surgery, obesity, right rotator cuff 14 tear, and left shoulder tumor [AR 15]. The ALJ determined at step three that 15 Plaintiff did not have an impairment or combination of impairments that meets or 16 medically equals the severity of one of the impairments listed in Appendix I of the 17 Regulations, (“the Listings”) [AR 16]. See 20 C.F.R. Pt. 404, Subpt. P, App. 1. 18 Next, the ALJ found that Plaintiff had the residual functional capacity (“RFC”) to 19 perform a range of sedentary work (20 C.F.R. § 404.1567(a)), including the ability 20 to lift and/or carry up to 10 pounds occasionally and less than 10 pounds frequently, 21 stand and/or walk a total of two hours and sit a total of 6 hours in an 8-hour workday 22 with normal breaks and the ability to alternate positions between sitting and standing 23 for 3 to 5 minutes at will, occasionally engage in postural maneuvers, and frequently 24 perform gross and fine manipulation bilaterally [AR 16]. The ALJ further found 25 that Plaintiff was precluded from performing work above shoulder level bilaterally, 26 crawling, using ladders, ropes, and scaffolds, and working around dangerous 27 machinery and unprotected heights [AR 17]. At step four, the ALJ determined that 28 Plaintiff was able to perform her past relevant work as an order clerk, as that job 2 1 was actually performed by Plaintiff and as generally performed in the national 2 economy [AR 18-19]. 3 4 5 6 7 The Appeals Council denied review of the ALJ’s decision on April 26, 2017. [AR 4-6.] This action followed. Plaintiff raises the following issues challenging the ALJ’s findings and determination of non-disability: 1. The ALJ erred in failing to resolve an inconsistency between the 8 vocational expert’s testimony and the reaching demands of the order clerk 9 job. [Jt. Stip. at 4-7, 14-17.] 10 11 2. The ALJ erred in rejecting Plaintiff’s subjective symptom testimony. [Jt. Stip. at 17-22, 30-32.] 12 Plaintiff requests reversal and remand for payment of benefits or, in the 13 alternative, remand for further administrative proceedings. [Jt. Stip. at 32-33.] The 14 Commissioner asserts that the ALJ’s decision should be affirmed, or in the 15 alternative, remanded for further development of the record if the Court finds error 16 in the ALJ’s consideration of the record. [Jt. Stip. at 33.] 17 18 19 III. GOVERNING STANDARD Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 20 determine if: (1) the Commissioner’s findings are supported by substantial 21 evidence; and (2) the Commissioner used correct legal standards. See Carmickle v. 22 Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Brewes v. Comm’r 23 Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012) (internal citation omitted). 24 “Substantial evidence is more than a mere scintilla but less than a preponderance; it 25 is such relevant evidence as a reasonable mind might accept as adequate to support a 26 conclusion.” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 27 2014) (internal citations omitted). 28 The Court will uphold the Commissioner’s decision when the evidence is 3 1 susceptible to more than one rational interpretation. Molina v. Astrue, 674 F.3d 2 1104, 1110 (9th Cir. 2012). However, the Court may review only the reasons stated 3 by the ALJ in his decision “and may not affirm the ALJ on a ground upon which he 4 did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court will not 5 reverse the Commissioner’s decision if it is based on harmless error, which exists if 6 the error is “inconsequential to the ultimate nondisability determination, or if despite 7 the legal error, the agency’s path may reasonably be discerned.” Brown-Hunter v. 8 Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations 9 omitted). 10 IV. 11 DISCUSSION 12 A. Vocational Expert’s Testimony 13 Plaintiff contends the ALJ erred by relying on the testimony of the vocational 14 expert (“VE”) that Plaintiff could perform her past relevant work, because the VE’s 15 testimony conflicted with the Dictionary of Occupational Titles (“DOT”). [Jt. Stip. 16 at 4-7, 14-17.] 17 At step four of the five-step sequential analysis, a claimant has the burden of 18 proving that she cannot return to her past relevant work, either as actually or 19 generally performed in the national economy. Pinto v. Massanari, 249 F.3d 840, 20 844 (9th Cir. 2001); 42 U.S.C. §§ 404.1520(f), 416.920(f). However, the ALJ has a 21 duty to make factual findings to support a conclusion of non-disability at step four. 22 See Pinto, 249 F.3d at 844. The ALJ can meet this burden by comparing the 23 physical and mental demands of the past relevant work with the claimant’s RFC. Id. 24 at 844-45. 25 To ascertain the requirements of occupations as generally performed in the 26 national economy, the ALJ may rely on VE testimony or information from the DOT. 27 Pinto, 249 F.3d at 845-46. Should an “apparent or obvious” conflict arise between a 28 VE’s testimony regarding the claimant’s ability to perform a certain job and the 4 1 DOT’s description of that job, “the ALJ must ask the [VE] to reconcile the conflict” 2 and must determine whether the VE’s explanation is reasonable before relying on 3 the VE’s testimony. Gutierrez v. Colvin, 844 F.3d 804, 807-08 (9th Cir. 2016); see 4 Massachi v. Astrue, 486 F.3d 1149, 1153-54 (9th Cir. 2007) (explaining that neither 5 the DOT nor VE evidence “automatically trumps when there is a conflict” and that 6 if the ALJ determines that a conflict exists, “the ALJ must then determine whether 7 the vocational expert’s explanation for the conflict is reasonable and whether a basis 8 exists for relying on the expert rather than the [DOT].”). 9 At the hearing before the ALJ, the VE testified that Plaintiff had past relevant 10 work as a customer order clerk (DOT 249.362-026), which is a sedentary job. [AR 11 51.] The ALJ asked the VE to assume the existence of a hypothetical person who, 12 among other things, was precluded from “work above shoulder level bilaterally.” 13 [AR 51-52, 54.] The VE stated that that the person would be able to perform work 14 as an order clerk. [AR 51-52, 54.] Later, the ALJ asked the VE if her testimony 15 was consistent with the DOT and its companion publications and the VE confirmed 16 that it was, except for two restrictions that were unrelated to the above the shoulder 17 work limitation. [AR 57.] 18 Plaintiff contends that the reaching demands of the order clerk job exceed her 19 abilities. [Jt. Stip. at 4-7, 14-17.] The DOT classifies the order clerk job as 20 requiring “frequent reaching,” which is defined as existing from one-third to two- 21 thirds of the time. DOT 249.362-026. Plaintiff argues that, because reaching means 22 “extending the hands and arms in any direction,” the order clerk job would require 23 “the ability to reach frequently overhead and in any other direction,” which conflicts 24 with Plaintiff’s “overhead reaching” limitation. [Jt. Stip. at 6 (citing SSR 85-15, 25 1985 WL 56857, at *7).] 26 There is no apparent or obvious conflict between the VE’s testimony and the 27 DOT’s job requirements requiring resolution by the ALJ. First, Plaintiff misstates 28 the ALJ’s RFC assessment. Plaintiff argues that the ALJ found that Plaintiff was 5 1 precluded from performing “any overhead reaching” bilaterally [Jt. Stip. at 6-7], but 2 the ALJ actually found that Plaintiff was precluded from performing “work above 3 shoulder level bilaterally.” [AR 16, 51-52, 54.] A limitation to no “overhead 4 reaching” is distinguishable from a limitation to no “work above shoulder level.” 5 See, e.g., Hopkins v. Berryhill, No. EDCV 15-02423 AJW, 2017 WL 923902, at *3 6 (C.D. Cal. Mar. 6, 2017) (“In assessing plaintiff’s physical RFC, the ALJ could have 7 specified that plaintiff was limited to ‘occasional overhead reaching bilaterally,’ but 8 instead she limited plaintiff to ‘occasional overhead work bilaterally,’ a difference 9 that suggests a distinction in meaning.”); see also Cruz v. Colvin, No. SACV 12- 10 1143-JPR, 2013 WL 4082714, at *4 (C.D. Cal. Aug. 13, 2013) (“‘Overhead work’ 11 can reasonably be interpreted to mean jobs performed almost constantly overhead, 12 such as a window washer, tree trimmer, or wall washer.”). Thus, there was no 13 apparent or obvious conflict between the VE’s testimony and the DOT’s description 14 of the order clerk job as requiring frequent reaching. 15 Even if a limitation to no “work above shoulder level bilaterally” is 16 synonymous with a limitation to no “overhead reaching bilaterally,” “not every job 17 that involves reaching requires the ability to reach overhead.” Gutierrez, 844 F.3d 18 at 808 (relying on the DOT and common knowledge to hold that no apparent or 19 obvious conflict existed between the VE’s testimony a claimant who could not reach 20 above shoulder level with her dominant right arm could still perform the DOT job of 21 cashier, which requires “frequent reaching”); see Ballesteros v. Colvin, No. CV 15- 22 0543-JPR, 2016 WL 3381280, at *15 (C.D. Cal. June 13, 2016) (“[J]ust because the 23 term ‘reaching’ includes extending the arms in ‘any’ direction – such as up, down, 24 out, right and left, -- that does not mean that a job that involves reaching necessarily 25 requires extending the arms in all of those directions.”). A common sense 26 understanding of the order clerk position and the facts in this case suggest that the 27 need to work above shoulder level is “unlikely and unforeseeable.” Gutierrez, 844 28 F.3d at 808 (finding that while “there may be exceptional circumstances where 6 1 cashiers have to reach overhead,” the facts and circumstances of the case did not 2 present any); [see also AR 247]. 3 Moreover, nothing in the DOT’s job description of the order clerk job creates 4 an inference that work above shoulder level is required. The DOT states that an 5 order clerk processes orders, which involves tasks such as editing, recording, filing, 6 writing, typing, and entering orders and providing information to customers. DOT 7 249.362-026. The order clerk may also check customers’ credit ratings, dispatch 8 orders, check inventory control, initiate purchase requisitions, compute prices, 9 discounts, commissions, and shipping charges, prepare invoices and shipping 10 documents, recommend the types of packing or labeling for orders, receive and 11 check on customer complaints, confer with personnel regarding shipments, sell 12 additional merchandise, compile statistics, and prepare reports. Id. None of these 13 tasks indicate that above shoulder level work or above shoulder level reaching is 14 required to perform the order clerk job. While Plaintiff notes [Jt. Stip. at 16-17] that 15 the DOT indicates that “filing” is one of the duties of an order clerk, Plaintiff has 16 not identified anything in the DOT or the record evidence suggesting that work 17 above shoulder level would be required. DOT 249.362-026. As no apparent or 18 obvious conflict exists between the VE’s testimony and the DOT, the ALJ did not 19 err in failing to further inquire into or resolve any conflict. See Gutierrez, 844 F. 3d 20 at 808 (an ALJ must “ask follow up questions of a vocational expert when the 21 expert’s testimony is either obviously or apparently contrary to the [DOT], but the 22 obligation doesn’t extend to unlikely situations or circumstances.”). 23 Accordingly, remand is not warranted on this ground. 24 25 B. Plaintiff’s Subjective Symptom Testimony 26 Plaintiff contends that the ALJ failed to provide sufficient reasons for 27 rejecting her testimony regarding her subjective symptoms and functional 28 limitations. [Jt. Stip. at 17-22, 30-32.] 7 Once a disability claimant produces evidence of an underlying physical or 1 2 mental impairment that could reasonably be expected to produce the symptoms 3 alleged and there is no affirmative evidence of malingering, the ALJ must offer 4 “specific, clear and convincing reasons” to reject the claimant’s testimony about the 5 severity of her symptoms. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017) 6 (citation omitted); Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). The ALJ 7 must specifically identify the testimony that is being rejected and explain what 8 evidence undermines that testimony. See Treichler v. Comm’r, Soc. Sec. Admin., 9 775 F.3d 1090, 1102-03 (9th Cir. 2014); Reddick v. Chater, 157 F.3d 715, 722 (9th 10 Cir. 1998); see also Trevizo, 871 F.3d at 679, n.5 (clarifying that “assessments of an 11 individual’s testimony by an ALJ are designed to ‘evaluate the intensity and 12 persistence of a claimant’s symptoms . . .’ and not to delve into wide-ranging 13 scrutiny of the claimant’s character and apparent truthfulness”) (quoting SSR 16- 14 3p). 15 Plaintiff alleges that conditions related to her back, neck, shoulders, and 16 elbows limit her ability to work. [AR 205.] In an October 2013 function report, 17 Plaintiff wrote that she wakes up with her leg “totally paralyzed,” has difficulty 18 standing, cannot sit for more than 2 hours, has tingling in her legs, feet and arms, 19 has pain in her neck, back, shoulders, and knees, gets a “massive headache” when 20 she lifts her head up, has problems with her hands freezing up and shaking, and is 21 limited to lifting 15 pounds. [AR 225, 230, 232.] She also reported that she was 22 able to maintain her personal care, prepare meals, perform some household chores, 23 feed and walk her dog, grocery shop about three times a week, go out daily, drive 24 during the day, and talk on the phone. [AR 226-29.] 25 At the hearing in January 2016, Plaintiff testified that she was in “constant 26 pain.” [AR 38.] She described nerve pain from her feet to her neck, sciatica pain 27 down her left leg, pain in her abdomen when she bends down, and headaches when 28 she turns or lifts her head. [AR 30, 38-39, 48-49.] She could not lift more than 10 8 1 pounds, lift her arms above shoulder level, or walk more than about one block. [AR 2 32, 37, 46.] She could sit for two hours at a time and up to five hours in a day, but 3 she needed to be in a reclined position with her legs elevated. [AR 31-32, 36.] 4 Plaintiff cooked and shopped for herself, but had someone else clean her home. 5 [AR 35.] Plaintiff claimed she had no feeling at the ends of her fingers and could 6 not perform tasks with her hands such as keyboarding for more than a couple of 7 hours. [AR 29, 34, 46-47.] 8 The ALJ provided specific, clear and convincing reasons for discounting 9 Plaintiff’s testimony regarding her subjective complaints to the extent they were 10 inconsistent with the RFC assessed in the decision [AR 16-18.] See Trevizo, 871 11 F.3d at 678; Smolen, 80 F.3d at 1284. 12 The ALJ found that Plaintiff’s statements concerning the intensity and 13 persistence of her symptoms and functional limitations were not fully supported by 14 the medical record [AR 17-18.] See Rollins v. Massanari, 261 F.3d 853, 857 (9th 15 Cir. 2001) (finding that while medical evidence alone is not a basis for rejecting 16 pain testimony, it is one factor that the ALJ is permitted to consider); Burch v. 17 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). A review of Plaintiff’s medical 18 records supports the ALJ’s finding. Although Plaintiff reported periods of increased 19 musculoskeletal pain and symptoms [AR 17, 332, 364, 428], the ALJ noted that 20 conservative treatment with medication helped to alleviate Plaintiff’s complaints of 21 pain [AR 17]. See Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (ALJ may 22 consider effectiveness of pain medication in evaluating allegations of disabling 23 pain). For example, in April 2013, Plaintiff’s doctor noted that Plaintiff’s 24 musculoskeletal examination revealed normal range of motion, muscle strength, and 25 stability in all areas and Plaintiff’s pain score had improved to a “4/10” after she 26 started taking medication. [AR 17, 385-87.] In July 2013, Plaintiff described her 27 pain score as a “3/10” and later that month as a “0/10.” [AR 17, 339, 351.] In 28 January 2014, Plaintiff’s treating doctor reported normal strength and range of 9 1 motion in all areas, despite Plaintiff’s reports of back, shoulder and knee pain. [AR 2 17, 428-29.] While the evidence in the record is subject to more than one 3 interpretation, the ALJ’s interpretation thereof was rational and reasonable, and 4 therefore the Court must uphold it. See Rollins, 261 F.3d at 857 (court may not 5 “second-guess” an ALJ’s reasonable interpretation, provided it is supported by 6 substantial evidence); Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) 7 (same). 8 9 Further, the ALJ noted that Plaintiff’s reported functional limitations conflicted with the opinion of the examining orthopedic surgeon, Dr. Bernabe. [AR 10 17, 306-11.] On examination, Dr. Bernabe observed Plaintiff had a reduced range 11 of motion in the lumbar spine and positive straight leg raising bilaterally, but 12 Plaintiff was taking pain medication and had an otherwise normal examination. 13 [AR 17, 307-10.] Dr. Bernabe concluded that Plaintiff was capable of performing a 14 range of medium work. [AR 17-18, 310-11.] Although the ALJ assessed a more 15 restrictive RFC, Dr. Bernabe’s clinical findings were clearly inconsistent with 16 Plaintiff’s subjective complaints. [AR 17-18, 310-11.] Thus, the ALJ reasonably 17 concluded that the objective medical evidence failed to support the degree of 18 symptoms and limitations alleged by Plaintiff in her testimony. 19 The ALJ also discounted Plaintiff’s allegations based on her daily activities 20 [AR 17-18]. See Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) (an ALJ 21 may consider a claimant’s daily activities when weighing claimant’s testimony); 22 Burch, 400 F.3d at 680 (upholding ALJ’s rejection of a claimant’s credibility based 23 on the claimant’s daily activities of cooking, cleaning, shopping, interacting with 24 others and managing her own finances and those of her nephew); Molina, 674 F.3d 25 at 1113 (“Even where [daily] activities suggest some difficulty functioning, they 26 may be grounds for discrediting [the claimant’s] testimony to the extent that they 27 contradict claims of a totally debilitating impairment.”). At the hearing and in her 28 function report, Plaintiff described extreme limitations in functioning. [AR 17-18.] 10 1 She claimed she has difficulty standing, is able to walk only one block, and cannot 2 use her hands for activities such as keyboarding for more than 2 hours. [AR 18, 31- 3 32, 47, 225.] She also testified that she cannot sit for more than two hours at a time 4 and needs to sit in a reclined position with her legs elevated. [AR 31, 36.] The ALJ 5 however, found that Plaintiff’s function report showed that she was able to engage 6 “in a range of activities which reflects functional abilities at least consistent with 7 [the RFC] assessed.” [AR 18.] For example, Plaintiff was able to perform self-care 8 activities, housework (e.g., cooking, laundry, and washing dishes), and errands 9 including driving and shopping in stores several times a week. [AR 17-18, 226-28.] 10 Plaintiff also reported that she walks her dog two times a week and is able to do 11 about one hour of yard work. [AR 32, 226.] As Plaintiff’s daily activities were 12 inconsistent with her allegedly disabling symptoms, the ALJ properly discounted 13 Plaintiff’s subjective symptom testimony. See Bray v. Comm’r of Soc. Sec. Admin., 14 554 F.3d 1219, 1227 (9th Cir. 2009) (ALJ properly discounted claimant’s testimony 15 because the record showed that “she leads an active lifestyle, including cleaning, 16 cooking, walking her dogs, and driving to appointments”); Burch, 400 F.3d at 680- 17 81; Molina, 674 F.3d at 1113. 18 Accordingly, the ALJ provided specific, clear and convincing reasons 19 supported by substantial evidence to discount Plaintiff’s testimony regarding the 20 nature and severity of her symptoms. 21 22 23 24 V. For all of the foregoing reasons, IT IS ORDERED that the decision of the Commissioner finding Plaintiff not disabled is AFFIRMED. 25 IT IS SO ORDERED. 26 DATED: November 8, 2018 27 28 CONCLUSION ___________________________________ GAIL J. STANDISH UNITED STATES MAGISTRATE JUDGE 11
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