Nha Hoang v. Nancy A. Berryhill, No. 8:2017cv02108 - Document 24 (C.D. Cal. 2019)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Autumn D. Spaeth. ORDERFor the reasons stated above, the decision of the Social Security Commissioner isAFFIRMED and the action is DISMISSED with prejudice. [See order for details.] (et)
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Nha Hoang v. Nancy A. Berryhill Doc. 24 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 Case No.: 8:17-0 210 8 ADS NHA H., an Individual, 12 Plaintiff, 13 v. MEMORANDUM OPINION AND ORDER 14 15 SAUL1, ANDREW M. Social Security, Com m issioner of Defendant. 16 17 I. 18 19 IN TROD U CTION Plaintiff Nha H.2 (“Plaintiff”) challenges the Defendant, Nancy A. Berryhill, Acting Com m issioner of Social Security’s (hereinafter “Com m issioner” or “Defendant”) 20 21 22 23 24 1 The Com plaint, and thus the docket caption, do not nam e the Com m issioner. The parties list Nancy A. Berryhill as the Acting Com m issioner in the J oint Stipulation. On J une 17, 20 19, Saul becam e the Com m issioner of Social Security. Thus, he is autom atically substituted as the defendant under Federal Rule of Civil Procedure 25(d). 2 Plaintiff’s nam e has been partially redacted in com pliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recom m endation of the Com m ittee on Court Adm inistration and Case Managem ent of the J udicial Conference of the United States. -1Dockets.Justia.com 1 denial of her application for a period of disability and disability insurance benefits 2 (“DIB”). For the reasons stated below, the decision of the Com m issioner is affirm ed and 3 this m atter is dism issed with prejudice. 4 II. PROCEED IN GS BELOW 5 Plaintiff filed an application for DIB on March 22, 20 11, alleging disability 6 beginning February 1, 20 0 9. (Adm inistrative Record (“AR”) 181-82). Plaintiff claim ed 7 she was unable to work because of: leg problem s, lim ping, weakness, num bness and 8 tingling of legs. (AR 20 5-10 ). Plaintiff’s application was denied initially on August 11, 9 20 11 (AR 80 -83), and upon reconsideration on Novem ber 22, 20 11 (AR 86-90 ). A 10 hearing was held before Adm inistrative Law J udge (“ALJ ”) Keither Dietterle on J une 4, 11 20 13. (AR 37-58). On J une 21, 20 13, the ALJ found that Plaintiff had not been under a 12 disability, pursuant to the Social Security Act 3 , since February 1, 20 0 9. (AR 21-36). The 13 ALJ ’s decision becam e the Com m issioner’s final decision when the Appeals Council 14 denied Plaintiff’s request for review on Decem ber 18, 20 14. (AR 1-6). Plaintiff then filed an action in District Court on February 10 , 20 15, challenging 15 16 the ALJ ’s decision. (AR 470 -77). On Decem ber 11, 20 15, the Court reversed and 17 rem anded the m atter for further adm inistrative proceedings. (AR 478-93). Another 18 hearing was held on May 25, 20 17, this tim e before ALJ Alan J . Markiewicz. (AR 40 6- 19 47). On Septem ber 29, 20 17, the ALJ again found that Plaintiff had not been under a 20 disability, pursuant to the Social Security Act, since February 1, 20 0 9. (AR 381-40 5). 21 Plaintiff filed this action on Decem ber 1, 20 17. [Docket (“Dkt.”) No. 1]. 22 23 24 3 Persons are “disabled” for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or m ental im pairm ent expected to result in death, or which has lasted or is expected to last for a continuous period of at least 12 m onths. 42 U.S.C. §423(d)(1)(A). -2- In the ALJ ’s decision of Septem ber 29, 20 17 (AR 381-99), the ALJ followed the 1 2 required five-step sequential evaluation process to assess whether Plaintiff was disabled 3 under the Social Security Act.4 At s te p o n e , the ALJ found that Plaintiff did not engage 4 in substantial gainful activity during the period from her alleged onset date of February 5 1, 20 0 9 through her date last insured of Septem ber 30 , 20 13. (AR 387). At s te p tw o , 6 the ALJ found that Plaintiff had the following severe im pairm ents: disc disease of the 7 cervical spine; and history of fracture and open reduction and internal fixation of the 8 right ankle. (AR 387). At s te p th re e , the ALJ found that Plaintiff “did not have an 9 im pairm ent or com bination of impairm ents that m et or m edically equaled the severity 10 of one of the listed im pairm ents in 20 CFR Part 40 4, Subpart P, Appendix 1 (20 CFR 11 40 4.1520 (d), 40 4.1525 and 40 4.1526.” (AR 389-90 ). The ALJ then found that Plaintiff had the following Residual Functional 12 13 Capacity5 (“RFC”) : [P]erform a range of light work as defined in 20 CFR 40 4.1567(b). Specifically, the claim ant was able to lift and carry 20 pounds occasionally, and 10 pounds frequently; sit for six hours out of an eight-hour day; and stand or walk for six hours out of an eight-hour day. She could occasionally use the upper extrem ities for pushing and pulling; she could frequently 14 15 16 17 18 19 20 21 22 23 24 4 The ALJ follows a five-step sequential evaluation process to assess whether a claim ant is disabled: Step one: Is the claim ant engaging in substantial gainful activity? If so, the claim ant is found not disabled. If not, proceed to step two. Step two: Does the claim ant have a “severe” im pairm ent? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claim ant’s im pairm ent or com bination of im pairm ents m eet or equal an im pairm ent listed in 20 C.F.R., Pt. 40 4, Subpt. P, App. 1? If so, the claim ant is autom atically determ ined disabled. If not, proceed to step four. Step four: Is the claim ant capable of perform ing his past work? If so, the claim ant is not disabled. If not, proceed to step five. Step five: Does the claim ant have the residual functional capacity to perform any other work? If so, claim ant is not disabled. If not, the claim ant is disabled. Lester v. Chater, 81 F.3d 821, 828 n. 5 (9th Cir. 1995) (citing 20 C.F.R. §40 4.1520 ). 5 A Residual Functional Capacity is what a claim ant can still do despite existing exertional and nonexertional lim itations. See 20 C.F.R. §§ 40 4.1545(a)(1), 416.945(1)(1). -3- clim b stairs and occasionally clim b ladders, ropes, or scaffolds and can occasionally crawl. She could occasionally reach overhead bilaterally with the upper extrem ities, but had to avoid concentrated exposure to unprotected heights or dangerous or fast-m oving m achinery. 1 2 3 4 (AR 390 ). At s te p fo u r, based on Plaintiff’s RFC and the vocational expert’s testim ony, the 5 6 ALJ found that Plaintiff was capable of perform ing past relevant work as an electronic 7 assem bler as generally and actually perform ed, stating: “[t]his work did not require the 8 perform ance of work-related activities precluded by the claim ant’s residual functional 9 capacity.” The ALJ did not proceed to s te p five . (AR 397-98). Accordingly, the ALJ 10 determ ined that Plaintiff has not been under a disability, as defined in the Social 11 Security Act, from February 1, 20 0 9 through Septem ber 30 , 20 13. (AR 398). 12 III. 13 STAN D ARD OF REVIEW Under 42 U.S.C. §40 5(g), a district court m ay review the Com m issioner’s decision 14 to deny benefits. A court m ust affirm an ALJ ’s findings of fact if they are supported by 15 substantial evidence and if the proper legal standards were applied. Mayes v. 16 Massanari, 276 F.3d 453, 458-59 (9th Cir. 20 0 1). “Substantial evidence” m eans m ore 17 than a m ere scintilla, but less than a preponderance; it is such relevant evidence as a 18 reasonable person m ight accept as adequate to support a conclusion.” Lingenfelter v. 19 Astrue, 50 4 F.3d 10 28, 10 35 (9th Cir. 20 0 7) (citing Robbins v. Soc. Sec. Adm in., 466 20 F.3d 880 , 882 (9th Cir. 20 0 6)). An ALJ can satisfy the substantial evidence 21 requirem ent “by setting out a detailed and thorough sum m ary of the facts and 22 conflicting clinical evidence, stating his interpretation thereof, and m aking findings.” 23 Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citation om itted). 24 -4- “[T]he Com m issioner’s decision cannot be affirm ed sim ply by isolating a specific 1 2 quantum of supporting evidence. Rather, a court m ust consider the record as a whole, 3 weighing both evidence that supports and evidence that detracts from the Secretary’s 4 conclusion.” Aukland v. Massanari, 257 F.3d 10 33, 10 35 (9th Cir. 20 0 1) (citations and 5 internal quotation m arks om itted). “’Where evidence is susceptible to m ore than one 6 rational interpretation,’ the ALJ ’s decision should be upheld.” Ryan v. Com m ’r of Soc. 7 Sec., 528 F.3d 1194, 1198 (9th Cir. 20 0 8) (citing Burch v. Barnhart, 40 0 F.3d 676, 679 8 (9th Cir. 20 0 5)); see Robbins, 466 F.3d at 882 (“If the evidence can support either 9 affirm ing or reversing the ALJ ’s conclusion, we m ay not substitute our judgm ent for that 10 of the ALJ .”). The Court m ay review only “the reasons provided by the ALJ in the 11 disability determ ination and m ay not affirm the ALJ on a ground upon which he did not 12 rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 20 0 7) (citing Connett v. Barnhart, 340 13 F.3d 871, 874 (9th Cir. 20 0 3)). 14 IV. AN ALYSIS 15 A. Is s u e o n Ap p e al 16 Plaintiff raises one issue for review: whether the ALJ ’s finding that Plaintiff can 17 perform her past relevant work as an electronics assem bler is supported by substantial 18 evidence and free of legal error. [Dkt. 19, J oint Stipulation (“J S”) 4]. Specifically, 19 Plaintiff argues that her past relevant work requires 8 hours of sitting in an 8-hour work 20 day but her RFC provides that she is capable of only 6 hours out of an 8 work day. As 21 such, Plaintiff asserts the ALJ com m itted legal error and rem and is appropriate. 22 B. Le gal Stan d ard At Is s u e 23 The ALJ ’s finding at issue was m ade at step four of the five-step disability 24 determ ination process. At step four, the ALJ determ ines whether a claim ant has the -5- 1 RFC to perform her past relevant work. See 20 C.F.R. § 40 4.1520 (f). The term “past 2 relevant work” m eans either (1) a specific past job as the claim ant “actually perform ed” 3 it, or (2) a past relevant job as it is “generally perform ed” or “usually perform ed” in the 4 national econom y. See, e.g., Pinto v. Massanari, 249 F.3d 840 , 844-45 (9th Cir. 20 0 1) 5 (citing Social Security Ruling 82-62 and 20 C.F.R. §§ 40 4.1571, 40 4.1574, 40 4.1565, 6 416.971, and 416.974). The ALJ is not required to m ake explicit findings at step four on 7 both prongs – that is, an ALJ m ay deny a claim ant at step four based on a determ ination 8 that she can do her past relevant work as she “actually perform ed” it or as that job is 9 “generally perform ed.” Id. 10 Where a claim ant cannot perform her past relevant work as she “actually 11 perform ed” it, “but can perform the functional dem ands and job duties as generally 12 required by em ployers throughout the econom y, the claim ant should be found ‘not 13 disabled.’” Social Security Ruling (“SSR”) 82-61. A claim ant has the burden at step four 14 of showing that she can no longer perform her past relevant work. 20 CFR §§ 15 40 4.1520 (e) and 416.920 (e); Clem v. Sullivan, 894 F.2d 328, 330 (9th Cir. 1990 ). 16 Although the burden of proof lies with the claim ant at step four, the ALJ still has a duty 17 to m ake the requisite factual findings to support his conclusion. Pinto v. Massanari, 249 18 F.3d at 844; Carm ickle v. Com m ’r of Soc. Sec., 533 F.3d 1155, 1167 (9th Cir. 20 0 7). 19 C. Th e ALJ D id N o t Co m m it Le gal Erro r 20 Plaintiff’s entire argum ent as to why the ALJ erred in m aking the determ ination 21 at step four is that the assessed RFC found Plaintiff could only sit for six hours and that 22 to be able to perform her past work either as actually perform ed or as perform ed in the 23 national econom y, she m ust be able to sit for eight hours. Plaintiff is m istaken. 24 -6- The ALJ found that Hoang could return to her past relevant work as an 1 2 electronics worker as generally and actually perform ed. (AR 397, ¶6). Hoang presented 3 evidence that her past relevant work required sitting for eight hours per day. (AR 55- 4 56). The vocational expert, relying on Exhibit 4E (AR 211-14) and Exhibit 3E, section 6 5 (AR 20 7), classified Hoang's past relevant work as “electronics assem bler” (DOT No. 6 726.684-0 34, sedentary SVP 3, sem iskilled) and "consistent to how the [Plaintiff] 7 perform ed it as indicated." (AR 55). The DOT describes “sedentary work” as follows: Exerting up to 10 pounds of force occasionally (Occasionally: activity or condition exists up to 1/ 3 of the tim e) and/ or a negligible am ount of force frequently (Frequently: activity or condition exists from 1/ 3 to 2/ 3 of the tim e) to lift, carry, push, pull, or otherwise m ove objects, including the hum an body. Sedentary work involves sitting m ost of the tim e, but m ay involve walking or standing for brief periods of tim e. J obs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are m et. 8 9 10 11 12 DOT No. 726.684-0 34. 13 The ALJ never found that Plaintiff could only sit for a total of six hours.6 As 14 15 Defendant contends, the ALJ did not assess affirm ative restrictions on Plaintiff’s ability 16 to sit. Rather, based on a thorough review of the m edical records and testim ony at the 17 hearing, the ALJ found that Plaintiff retained the exertional capacity to perform “light 18 work”, as defined under 20 C.F.R. § 40 4.1567(b).7 (AR 387-98). Light work is a 19 6 20 21 22 23 24 Indeed, until filing a Com plaint with this Court, Plaintiff herself never argued that she is unable to sit for eight hours. Plaintiff points to no m edical evidence or testim ony in the record to support such a finding, nor does she argue that the ALJ im properly assessed the m edical testim ony in his opinion. 7 A residual function capacity is “the application of a legal standard” (sedentary, light, m edium , heavy or very heavy work) “to the m edical facts concerning [claim ant’s] physical capacity.” Carolyn A. Kubitschek & J on C. Dubin, Social Security Disability Law and Procedure in Federal Court §3:45 (20 18); 20 C.F.R. § 404.1567 (“To determ ine the physical exertion requirem ents of work in the national econom y, we classify jobs as sedentary, light, m edium , heavy and very heavy.”). -7- 1 technical term which includes the ability to sit for six hours out of an eight hour work 2 day. An ALJ ’s determ ination that a claim ant can perform light level exertion does not 3 translate into affirm ative restrictions on the claim ant’s ability to sit. Indeed, the Social 4 Security Regulations provide that an individual that can perform light work can also 5 perform the dem ands of sedentary work. 20 C.F.R. § 40 4.1567(b) (“[i]f som eone can do 6 light work, we determine that he or she can also do sedentary work, unless there are 7 additional lim iting factors such as loss of fine dexterity or inability to sit for long periods 8 of tim e”). 9 Moreover, the functional dem ands and job duties of the job of electronics 10 assem bler in the national econom y do not require Plaintiff to sit for eight hours. Thus, 11 even if the ALJ were to have found that Plaintiff could not sit for eight hours, such a 12 finding would not preclude Plaintiff from being able to perform her past relevant work 13 as it is “generally perform ed” or “usually perform ed” in the national econom y. See 20 14 C.F.R. §40 4.1520 (f); Pinto v. Massanari, 249 F.3d at 844-45. 15 Here, Plaintiff was given a “light” RFC – and the ALJ determ ined Plaintiff could 16 perform a “sedentary” past job. Specifically, the ALJ found that Plaintiff could perform 17 her past job as “Electronics assem bler (DOT# 726.684-0 34), which is sedentary sem i- 18 skilled work.” (AR 398). Nothing in the DOT description of the occupation of 19 “Assem bler, Sem iconductor” gives rise to a requirem ent that the worker sit for eight 20 hours to perform the work. See DOT No. 726.684-0 34 21 Furtherm ore, according to the Ninth Circuit, a norm al workday perm its breaks 22 every two hours; therefore, a claim ant who can sit for two hours can perform sedentary 23 work, but one who has to stand up m ore frequently than once every two hours cannot 24 perform sedentary work. Tackett v. Apfel, 180 F.3d 10 94, 110 3 (9th Cir. 1999). The -8- 1 sitting requirem ent of sedentary work allows for norm al breaks, including lunch, at two 2 hour intervals. Ellis v. Barnhart, 392 F.3d 988, 996 (8th Cir. 20 0 5). The need to 3 alternate between sitting and standing m ore frequently than every two hours could 4 significantly erode the occupational base for a full range of unskilled sedentary work. 5 Id. at 997. One court has held that the ability to sit for six hours does not require the 6 ability to sit for six hours at a tim e; thus, that court held that the claim ant need not be 7 able to sit for six consecutive hours in order to be capable of doing sedentary work. 8 Federnandez-Sosa v. Bowen, 70 1 F. Supp. 74 (S.D.N.Y. 1988). A claim ant who can sit 9 for m ost of the day, but needs to stand up to take breaks occasionally is capable of 10 sedentary work, so long as the breaks are “of short duration.” Rosado v. Secretary of 11 Health and Hum an Services, 80 7 F.2d 292 (1st Cir. 1986); Musto v. Halter, 135 F. Supp. 12 2d 220 , 233 (D. Mass. 20 0 1). 13 Moreover, if som eone can do light work, it has been determ ined that he or she 14 can also do sedentary work, “unless there are additional lim iting factors such as loss of 15 fine dexterity or inability to sit for long periods of tim e.” 20 C.F.R. § 40 4.1567(b). Here, 16 there were no additional lim iting factors by the ALJ regarding Plaintiff’s inability to sit 17 for long periods of tim e. Indeed, the ALJ spends great length in his decision 18 discounting the severity of the various ailm ents asserted by Plaintiff, including a finding 19 that a m edical report of no prolonged sitting to be without support. (AR 387-97). The 20 ALJ also noted that the vocational expert at the hearing specifically testified that a 21 person with the RFC lim itations given could perform the work as an electronics 22 assem bler as generally perform ed. (AR 398). 23 24 -9- Accordingly, the ALJ correctly found that Plaintiff could perform her past work as 1 2 an electronics assem bler as it is generally perform ed in the national econom y. As such, 3 rem and in not appropriate. 4 V. 5 6 ORD ER For the reasons stated above, the decision of the Social Security Com m issioner is AFFIRMED and the action is DISMISSED with prejudice. 7 8 DATE: October 16, 20 19 9 10 / s/ Autum n D. Spaeth THE HONORABLE AUTUMN D. SPAETH United States Magistrate J udge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 -10 -
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