York v. Commissioner, Social Security Administration, No. 6:2012cv01420 - Document 22 (D. Or. 2013)
Court Description: OPINION AND ORDER. For the reasons stated above, the Commissioner's final decision denying benefits to plaintiff is AFFIRMED. This action is DISMISSED. IT IS SO ORDERED. Signed on 11/06/2013 by Judge Malcolm F. Marsh. (pvh)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON JOHNNY S. YORK, Case No. 6:12-cv-01420-MA Plaintiff, v. COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant. KATHRYN TASSINARI DREW L. JOHNSON 1700 Valley River Drive Eugene, OR 97405 Attorneys for Plaintiff S. AMANDA MARSHALL United States Attorney District of Oregon ADRIAN L. BROWN Assistant United States Attorney 1000 S.W. Third Ave., Suite 600 Portland, OR 97204-2902 SUMMER STINSON Social Security Administration Office of the General Counsel 701 Fifth Ave., Suite 2900, M/S 221A Seattle, WA 98104-7075 Attorneys for Defendant 1 - OPINION AND ORDER OPINION AND ORDER MARSH, Judge Plaintiff Johnny S. York brings this action judicial for review of a final decision of the Commissioner of Social Security (DIB) denying his applications for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. 401-433, §§ and Supplemental Security Income (SSI) disability benefits under Title XVI of the Social Security Act, 42 U.S.C. This Court has jurisdiction pursuant to 42 U.S.C. 1381-1383f. §§ § 405(g). For the reasons that follow, I affirm the decision of the Commissioner. PROCEDURAL AND FACTUAL BACKGROUND September On 25' 2008, plaintiff filed protectively applications for DIB and SSI alleging disability as of August 1, 2002. The claims were denied initially and on reconsideration. Plaintiff filed a request for a hearing before an administrative law judge (ALJ). An ALJ held a hearing on February 14, 2011, at which plaintiff appeared with his attorney and testified. At the hearing, plaintiff amended his disability onset date to February 3, 2007. 17, A vocational expert also appeared and testified. 2011, the ALJ issued an unfavorable decision. On March The Appeals Council denied plaintiff's request for review on July 2, 2012. The of the ALJ's decision therefore became the final decision Commissioner for purposes of review. Plaintiff was 48 years old on the date of his alleged onset of disability, and 51 years old on the date of the hearing. 2 - OPINION AND ORDER Plaintiff Plaintiff has completed ninth grade and has no further education. past relevant work as a gas station attendant, a truck driver, and Plaintiff alleges a sheet counter in a paper corrugation factory. that he is unable due work to pain, dizziness, five-step sequential back low to blackouts, depression and difficulty sleeping. THE ALJ'S DISABILITY ANALYSIS The has Commissioner established a process for determining whether a person is disabled. Bowen v. 416.920. Each step Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. is potentially dispositive. The claimant bears the burden of proof See Valentine v. at steps one through four. Admin., 574 689 F.3d 685, § Sec. At step five, 2009). (9th Cir. Soc. Comm' r the burden shifts to the Commissioner to show that the claimant can do other work which exists in the national Andrews economy. v. Shalala, 53 F. 3d 1035, 1043 (9th Cir. 1995). The ALJ concluded that plaintiff met the insured status requirements of the Social Security Act through March 31, 2007. claimant seeking DIB benefits under Title II must disability on or prior to the last date insured. A establish 42 U.S. C. § 416(I) (3); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity since February 3, onset of disability. See 20 C.F.R. seq., 416.920(b), 416.971 et seq. 3 - OPINION AND ORDER §§ 2007, the alleged 404.1520(b), 404.1571 et the ALJ found that plaintiff had the following At step two, chronic low back pain secondary to lumbar severe impairments: status degenerative disc disease with central stenosis at L2-3; post instrumented fusion L4-5, but no neurological deficits; and See 20 C.F.R. obesity. §§ 404.1520(c), 416.920(c). At step three, the ALJ found that plaintiff's impairments, or combination of impairments did not meet or medically equal a listed See 20 C.F.R. impairment. §§ 404.1520{d), 404.1526, 404.1525, 416.920 (d)' 416.925, 416.926. The ALJ assessed plaintiff with a residual functional capacity (RFC) to perform light work except reduced by occasional climbing of ladders, ropes, stooping. The frequently scaffolds, ALJ crouch, found ramps and stairs, plaintiff kneel, crawl, retains and balance. and occasional ability the The ALJ to found plaintiff is further limited to no public contact, and only brief occasional contact with coworkers, and is limited to tasks no more complex than unskilled entry level work as defined See 20 C.F.R. Dictionary of Occupational Titles. §§ in the 404.1527, 404.1529, 416.927, 416.929. At step four, the ALJ found plaintiff unable to perform any past relevant work. See 20 C.F.R. §§ 404.1565, 416.965. At step five, the ALJ concluded that considering plaintiff's age, education, work experience, and residual functional capacity, jobs exist in significant numbers 4 - OPINION AND ORDER in the national economy that See 20 C.F.R. plaintiff can perform. §§ 404.1569, 404.1569(a), Accordingly, the ALJ concluded that plaintiff 416.969, 416.969(a). is not disabled urider the meaning of the Act. ISSUES ON REVIEW Plaintiff contends the ALJ committed the following errors: (1) testimony; (4) depression two; step at severe disorder his find to failed and antisocial improperly (2) personality discredited his (3) failed to properly consider the lay testimony; and improperly concluded that he could perform other work in the national economy at steps four and five. STANDARD OF REVIEW The district court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings are supported by substantial evidence in the record. § 405 (g); Berry v. Astrue, 622 F. 3d 1228, 1231 42 u.s.c. (9th Cir. 2010). "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a Valentine, upheld, 574 F.3d at 690. even if the (9th Cir. Cir. The Commissioner's decision must be If the susceptible to more than Molina v. Astrue, 674 F.3d 1104, 1111 2012); Tommasetti v. 2008). is evidence one rational interpretation. conclusion." Astrue, evidence 533 F.3d 1035, supports the 1038 (9th Commissioner's conclusion, the Commissioner must be affirmed; "the court may not 5 - OPINION AND ORDER substitute its judgment for that of the Commissioner." Massanari, 253 F.3d Commissioner of Soc. Sec. Admin., Cir. (9th 1156 1152, 2001)~ 359 F.3d 1190, 1193 Edlund v. Batson v. (9th Cir. 2004) . DISCUSSION I. The ALJ Did Not Err at Step Two At step two, a claimant must make a threshold showing that his medically determinable impairments significantly limit his ability to perform basic work activities. 20 C.F.R. §§ 404.1520(c), See Yuckert, 482 U.S. at 145; "Basic work activities" 416.920(c). refers to "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. §§ "An 416.92l(b). 404.152l(b), impairment or combination of impairments can be found 'not severe' only if the evidence establishes a slight abnormality that has 'no more than a minimal effect on an individual's ability to work."' Smolen v. Chater, 80 F. 3d 1273, 1290 (9th Cir. 1996) (quoting Social Security Ruling (SSR) 85-28). step two "[T]he inquiry is a de minimis screening device to dispose of groundless claims." Id. Bowen, 482 U.S. at 153-54). (citing An ALJ is also required to consider the "combined effect" of an individual's impairments in considering severity. severe Id. A diagnosis alone is not sufficient to establish a impairment. medically Instead, determinable 404.1520 (c), 416.920 (c). 6 - OPINION AND ORDER a claimant impairments are must severe. show that 20 C.F.R. his §§ Upon identification of a colorable claim of mental impairment, an ALJ must "special a apply technique[.]" C.F.R. 20 §§ 404.1520a(a), 416.920a(a); Keyser v. Comm'r, Soc. Sec. Admin., 648 An ALJ's decision must include F.3d 721, 725-26 (9th Cir. 2011). a specific finding as to the degree of mental limitation in each of four broad functional areas: activities of daily living; social functioning; concentration, persistence, and pace; and episodes of decompensation. Plaintiff 20 C.F.R. contends §§ the 404.1520a(c)&(e); 416.920a(c)&(e). ALJ erred failing in to find his depression and antisocial personality disorder severe impairments at step two. substantial responds Commissioner The evidence supports the ALJ's step two determination, and that even if the ALJ erred, the plaintiff's error was alleged because harmless functional the limitations mental limitations into the RFC. ALJ incorporated resulting from his The Commissioner is correct. At step two, the ALJ correctly applied the special technique, discussing that plaintiff's medically determinable depression and cannabis abuse caused no restrictions in his activities of daily living and that he has not suffered any episodes of decompensation. These findings are not challenged. In the areas of areas of social functioning and concentration, persistence, and pace, the ALJ determined that plaintiff has mild limitations. The ALJ discussed that plaintiff had been diagnosed with depression in 2001, and that his treating physician, Harold 7 - OPINION AND ORDER plaintiff's complaint to The Fluoxetine. prescribed M.D., Perez-Gil, Perez-Gil Dr. that he ALJ discussed had decreased interest in activities and difficulty concentrating, and that Dr. The Perez-Gil responded by increasing his dosage of Fluoxetine. ALJ noted plaintiff's own testimony that he had denied any suicidal thoughts, that his inactivity had led to depression, and that he had not resumed medication for his depression or otherwise sought mental health testimony from the ALJ discussed Additionally, treatment. plaintiff was indicated who son plaintiff's lay depressed, but that plaintiff's isolation also was due to lack of income and lack of transportation. The plaintiff ALJ determined could have based that some on plaintiff's concentration depression, difficulty, however, plaintiff could still concentrate sufficiently to perform simple tasks, maintain a workweek, schedule, and complete a normal workday and citing the Mental Residual Functional Capacity (MRFC) Assessment completed by Megan D. Nicholoff, Psy. D., an agency nonexamining physician. Based on this evidence, the ALJ found that plaintiff had mild limitations in the areas of social functioning and concentration, persistence and pace. In the decision, favor, the ALJ resolved step two in plaintiff's determining that plaintiff's obesity were severe impairments. chronic Tr. 30. low back pain and Although the ALJ did not expressly refer to plaintiff's diagnosis of antisocial personality 8 - OPINION AND ORDER at disorder medically two, step determinable the A:LJ did determine depression and cannabis that plaintiff's abuse were not severe. Having reviewed the evidence, I conclude that even if the ALJ erred in failing to find plaintiff's depression and antisocial personality disorder severe at step two, the error is harmless because the ALJ considered and incorporated plaintiff's functional limitations resulting from his mental impairments at step four. Lewis v. Atrue, 498 F.3d 909, 911 (9th Cir. 2007); Burch, 400 F.3d at 682. As the Commissioner correctly indicates, the ALJ accounted for plaintiff's mental health limitations in the RFC by limiting plaintiff to no public contact and only brief occasional contact with coworkers. In his reply, plaintiff acknowledges that the ALJ included some of his mental health functional limitations in the RFC, but submits that the ALJ' s exclusion of his antisocial personality disorder at step two was not harmless because the ALJ failed to include plaintiff's inability to supervisors as a limitation in the RFC. deal appropriately with I disagree. Plaintiff submits that his alleged difficulty appropriately responding to supervisors is supported by a November 11, psychodiagnostic evaluation performed by William A. Ph.D., an examining physician. with dysthymic disorder, 9 - OPINION AND ORDER 2006, McConochie, Dr. McConochie diagnosed plaintiff rule-out polysubstance abuse, and antisocial personality disorder, and noted that plaintiff was moderately impaired with respect to his social interactions. Dr. McConochie discussed plaintiff's history of incarcerations, lack of a girlfriend, social self-isolation, and discomfort with people and cited those factors disorder diagnosis. "self-medicate as supporting his antisocial personality Dr. Moconochie noted that plaintiff appears to with marijuana" and that plaintiff interested in discontinuing his marijuana use. was not In the report, a moderate impairment is defined as "[p] yschologically-based problems that are likely to cause an employer to warn the employee that if behavior does not improve, dismissal is imminent." Tr. 341. Contrary to plaintiff's suggestion, this definition of "moderate" is not limited to plaintiff's alleged difficulty with supervisors, as opposed to discomfort with people generally. To the extent Dr. McConochie indicated plaintiff had moderate difficulties with social interaction, I conclude the ALJ rationally interpreted those limitations to relate to his social isolation and discomfort around others and appropriately functional limitations in the .RFC. included Furthermore, those aside from Dr. McConochie's definition of moderate, plaintiff does not cite any evidence supporting supervisors. does not his alleged limitation in responding to To be sure, the body of Dr. McConochie's evaluation reflect any complaint made by plaintiff relating plaintiff's alleged difficulty responding to supervisors. 10 - OPINION AND ORDER to Indeed, at the hearing; plaintiff testified that he quit his previous jobs and plaintiff offered no testimony describing due to back pain, difficulty working with supervisors. Furthermore, the MRFC completed by Dr. Nicholoff and relied that plaintiff is upon by the ALJ indicates in limited ftability his accept to significantly and instructions appropriately to criticism from supervisors." Tr. 372. not Tr. respond 395; see also Indeed, the MRFC indicates that plaintiff is moderately limited in his ability to respond appropriately to the general public and to get along with coworkers, limitations which were consistent with Dr. McConochie's opinion and that the ALJ included in the RFC. Adult contrary to plaintiff's assertion, neither his And, Report Function nor the lay witness report describe limitations specific to his alleged inability to get along with Therefore, supervisors. moderately limited in plaintiff's his ability to contention respond that he appropriately was to supervisors simply is not supported by substantial evidence in the record, and the ALJ was not required to include such a limitation in the RFC. Accordingly, depression and any in excluding personality disorder alleged antisocial error plaintiff's as severe impairments at step two was harmless because the ALJ included the only mental health functional limitations supported by substantial 11 - OPINION AND ORDER evidence in the record into the RFC at step four. 1 Lewis, 498 F.3d at 911. II. Plaintiff's Credibility regarding testimony claimant's a whether determine To subjective pain or symptoms is credible, an ALJ must perform two 20 C.F.R. stages of analysis. 404.1529, in which the threshold test a is stage §§ The first 416.929. produce claimant must objective medical evidence of an underlying impairment that could be Tornmasetti, 533 F. 3d at 1039; second of stage the Smolen, credibility symptoms the produce to expected reasonably alleged. At the 80 F. 3d at 1282. analysis, absent affirmative evidence of malingering, the ALJ must provide clear and convincing reasons for discrediting the claimant's testimony regarding the Carmickle v. severity of the symptoms. Admin., F.3d 533 1155, (9th 1166 Cir. Commissioner Soc. 2008); Sec. Lingenfelter v. Astrue, 504 F. 3d 1028, 1036 (9th Cir. 2007). The ALJ must make findings that are sufficiently specific to permit the reviewing court to conclude that 2002); Orteza Thomas v. v. Shalala, 1 Barnhart, 50 F.3d 278 F.3d 947, 748, 750 not Tornmasetti, arbitrarily discredit the claimant's testimony. F.3d at 1039; ALJ did 533 the 958 (9th (9th Cir. Cir. 1995). I note that other than the ALJ's evaluation of Dr. McConochie's records as they pertain to step two, plaintiff does not challenge the ALJ's evaluation of the medical opinion evidence. 12 - OPINION AND ORDER Factors the ALJ determinations claimant's consider may include treatment when making objective the history, the medical claimant's credibility such evidence, the daily activities, inconsistencies in testimony, effectiveness or adverse side effects of any pain and medication, relevant character evidence. Tommasetti, 533 F.3d at 1039. At the hearing, plaintiff testified that he worked for many years as a truck driver, but can no longer perform that job after having three back surgeries. Plaintiff testified that he lives in a small trailer on his son's property and receives food stamps. Plaintiff stated that he takes Ibuprofen and Flexeril for his back, and that he also smokes marijuana to relax. Plaintiff acknowledged that he does not have a medical marijuana card and was receiving marijuana from friends. Plaintiff described that he had been smoking marijuana once a day six months earlier, but at the time of the hearing, he was smoking only once a month. Plaintiff stated that he can lift 20 pounds up to two-thirds of the day, can sit for 30 minutes or stand for 10 minutes before needing to switch positions, and can walk 30 minutes before needing to rest. Plaintiff stated that he stopped taking Celebrex because Ibuprofen is more effective at controlling his pain. Plaintiff testified that he lays down for four to six hours a day for comfort and sleeps three hours each night. 13 - OPINION AND ORDER Plaintiff described that on an average day, his pain is at a two or three on a 10-point scale, and that once a week, his pain is at a seven. At the hearing, plaintiff described that on a typical day, he ensures his grandson gets ready for school and walks his grandson Plaintiff testified that he watches television or to the bus stop. reads until his grandson returns from school. Plaintiff stated that he is able mow the lawn using the riding lawn mower and takes In his Adult Function Report, plaintiff reported out the trash. that he wakes up through the night, and in the morning experiences Plaintiff stated that he is uncomfortable stiffness in his back. around people, is depressed, and does not like to go outside. In the decision, the ALJ rejected plaintiff's testimony about the severity of his symptoms because his back pain was controlled with treatment, conservative his alleged limitations were inconsistent with his medical records, and his illegal drug use. I conclude that these reasons, taken are together, and clear convincing reasons for discrediting plaintiff's testimony. The treatment conservative, finding. is a a plaintiff legitimate receives, consideration especially in a when credibility Tommasetti, 533 F. 3d at 1039 (ALJ permissibly discounted plaintiff's testimony where evidence showed conservative course of treatment); see also Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (the· ALJ prescribe properly medical considered treatment 14 - OPINION AND ORDER the physician's commensurate with the failure to "supposedly Moreover, in assessing a claimant's excruciating pain ¢ alleged) . credibility, the ALJ may consider "the type, dosage, effectiveness, and side effects of any medication. ¢ the Indeed, Ninth 'conservative treatment' 404.1529(c). § that "indicated has Circuit 20 C.F.R. of evidence is sufficient to discount a claimant's testimony regarding severity of an impairment. ¢ Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007). On the record before me, the ALJ reasonably could discount plaintiff's testimony based on his conservative treatment. The ALJ discussed that plaintiff described his pain as well-controlled with over-the-counter Ibuprofen and a muscle relaxer six days a week, and that once a week, plaintiff's pain can exceed that level. ALJ also not~d The plaintiff's testimony that he prefers not to use prescription pain medications for those instances of excessive pain and had tried prescription pain medication post-surgery only while in the hospital. Plaintiff argues that he has declined stronger pain medication because Dr. Perez-Gil expressed a concern about prescribing opiates for his pain, noting the risk of addiction due However, to plaintiff's history of substance abuse. as the ALJ indicated, plaintiff has declined all prescription pain medication, including non-narcotics. fully supported by The ALJ's findings in this regard are substantial evidence in the record, and I conclude the ALJ could reasonably infer that plaintiff's pain is not as debilitating as alleged. 15 - OPINION AND ORDER Parra, 481 F.3d at 751. Because the ALJ's conclusion is a rational one, the court will not engage Tommasetti, 533 F.3d at 1039. in second-guessing. The ALJ also discounted plaintiff's credibility on the basis that his complaints about the severity of his pain and depression A lack of objective were not supported by the medical record. findings can undermine a claimant's credibility where there are detailed, 400 F. 3d at 680-81. Burch, other reasons present. treating plaintiff's physician repeatedly As the ALJ found that As the ALJ noted, plaintiff has little plaintiff was functional. or no medical records for 2007 and 2008 and he appears to have established care with Dr. Perez-Gil in September of 2008, at which time he complained of chronic back pain, depression, and requested a muscle relaxer. Dr. Perez-Gil prescribed Flexeril, Tr. 413-16. Fluoxetine, and counseled plaintiff about cannabis, alcohol, tobacco cessation. his within pain was functional. Tr. 416. In March of 2009, plaintiff reported tolerable Tr. 416. and control and he that was fairly In· October of 2009, plaintiff reported that his pain was responding well to the Flexeril. On June 24, 2010, other than a failed attempt to quit smoking, plaintiff reported no concerns complaints or Tr. functional." 2010, Dr. complaints, pain 436. Perez-Gil and And, that he remained as the ALJ noted, indicated that "active and on November 18, plaintiff reported no that Flexeril at night gives plaintiff "significant relief," and that 16 - OPINION AND ORDER plaintiff remained functional and was Tr. 432-33. meeting all his functional goals. The ALJ also noted that Dr. Perez-Gil found that plaintiff had a full range of motion in his lumbar spine, and a negative straight leg test in December Thus, with respect to plaintiff's back pain, the ALJ's of 2010. determination is supported by substantial evidence in the record. the ALJ' s Additionally, conclusions concerning plaintiff's With alleged mental limitations also are supported by the record. respect depression, plaintiff's to the again ALJ di~cussed plaintiff's prescription Fluoxetine and the fact that, at the time of the hearing, plaintiff was no longer taking anti-depressants or seeking any other mental health treatment. me, the could ALJ depression plaintiff's health medical that the severity limitations evidence, and were of not could thus, plaintiff's credibility on this basis. Lastly, factor conclude and mental objective the supported by di~count reasonably On the record before in the ALJ considered plaintiff's marijuana use as a discrediting plaintiff's As testimony. the ALJ discussed, plaintiff testified that he previously used marijuana daily and was not paying for Oregon's medical marijuana law. ALJ should not marijuana use, discredit it or obtaining it pursuant to While plaintiff asserts that the plaintiff for admitting to medical I conclude that discrediting plaintiff for using medical marijuana where it has not prescribed by a health care provider is not erroneous. 17 - OPINION AND ORDER See Morgan, 169 F.3d at 600 (questions of credibility are solely functions of the Commissioner) . However, even if the ALJ should not have discounted plaintiff's credibility on this basis, on the record before me, the ALJ's remaining reasons provide clear and convincing support for the adverse credibility determination. ~' Batson, 359 F.3d at 1197. III. Lay Testimony Plaintiff argues that the ALJ improperly rejected the lay testimony of Ronald York, plaintiff's son, without discussion. Lay testimony regarding a claimant's symptoms or how an impairment affects her ability to work is competent evidence that an ALJ must take into account. Molina, 674 F.3d at 1114. To discount lay witness testimony, the ALJ must give reasons that are germane to the witness. Id. Plaintiff is correct that the ALJ's failure to discuss the lay witness testimony was error. However, failure to credit witness testimony does not automatically warrant reversal. 1121-22. lay Id. at An ALJ's failure to discuss testimony may be harmless if it is "inconsequential to the ultimate nondisability determination in the context of the record as a whole." Molina, 674 F.3d at 1122 (citations and internal quotation marks omitted). Thus, where a lay beyond witness does not describe any limitations those described by the plaintiff, and the ALJ provided "well-supported, clear and convincing reasons" to reject the plaintiff's testimony, 18 - OPINION AND ORDER those reasons may similarly discredit the lay testimony. Id. at 1122. Here, the functional limitations described in Mr. York's lay witness report described the plaintiff's own statements. same limitations set See Tr. 220-226, 283-289. forth in Indeed, in the Third Party Function report, Mr. York described that plaintiff was depressed, was taking medication, and that plaintiff's activities were limited due to lack of money and transportation. Mr. York also described that plaintiff had become reclusive and isolated since his prior back surgeries, and did not handle changes stress or changes in routine very well. These allegations mirror those contained in plaintiff's report. Here, the ALJ discounted the severity of plaintiff's depression and its attendant functional limitations because depressants and depression. The ALJ also discredited plaintiff's testimony about the plaintiff had severity of his conservative not otherwise discontinued sought back pain because treatment medical evidence. had and was not it taking treatment was for antihis controlled with supported by the objective Because the ALJ's reasoning could apply equally to Mr. York's statements, the ALJ's error in failing to address Mr. York's statements determination. did not alter the ultimate nondisability Accordingly, the ALJ's error was harmless. /Ill /Ill 19 - OPINION AND ORDER Id. IV. Medical-Vocational Guidelines at Step Five At step five of the sequential evaluation, the burden shifts to the Commissioner to establish that there national economy that the claimant can do. 1043. are jobs Andrews, in the 53 F.3d at The ALJ must determine whether jobs exist in the national economy that the claimant can perform despite his limitations and restrictions. Tackett v. Apfel, 180 F.3d 1094, 1103-04 (9th Cir. 1999) . The Commissioner can satisfy this burden in two ways: ( 1) by the testimony of a vocational expert (VE); or (2) by reference to the Medical-Vocational Guidelines (the "grids"). at 1100-01; 20 C.F.R. pt. 404, subpt. P, app.2. Tackett, 180 F. 3d "When the grids do not completely describe the claimant's abilities and limitations, such as when the claimant has both exertional and nonexertional limitations, the grids are inapplicable and the ALJ must take the testimony of a VE." Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000); Thomas, 278 F.3d at 960. Plaintiff appears to argue that the ALJ erroneously applied the "light work" grid instead of the "sedentary work" grid when plaintiff turned 50 and approaching advanced age." required to apply the changed categories According to plaintiff, sedentary resembles plaintiff's limitations, 20 - OPINION AND ORDER age grid because it to "closely the ALJ was most closely and that under the sedentary grid, a finding of "disabled" is directed. I disagree for several reasons. First, plaintiff's lifting restriction falls in the "light" work category- a finding plaintiff does not challenge. Plaintiff testified, and substantial evidence supports, that he was capable of lifting 20 to 25 pounds. Under the regulations, light work "involves lifting no more than 20 pounds at a time, with frequent lifting or carrying of objects weighing up to 10 pounds." C.F.R. 20 404.1567(b) Sedentary work "involves. lifting no more than 10 pounds at a time and occasionally lifting or carrying articles." § § 20 C.F.R. 404.1567(a). Second, consultation with a Vocational Expert was recommended because plaintiff's nonexertional exertional limitations. base was See SSR 83-12 eroded (where by a several claimant's exertional base falls between two categories, ALJ should consult a VE) . Moreover, an ALJ may not rely on the grids if a claimant's limitations do not fully fall within a given category. Tackett, 180 F. 3d at 1102 (an ALJ may rely upon the grids at step five only when they "completely and accurately" represent all of a claimant's limitations); accord Thomas, 278 F.3d at 960; Moore, 216 F.3d at 864. Third, testify contrary to plaintiff's suggestion, that sedentary work. plaintiff's limitations most the VE did not closely resemble At the hearing, the ALJ found that plaintiff had 21 - OPINION AND ORDER the residual functional capacity to perform light work, except for certain exertional and nonexertional limitations expressed in a hypothetical presented to the VE: the individual could only occasionally climb ladders, rope and scaffold; only occasionally climb ramps and stairs or stoop; could frequently crouch, crawl, kneel and balance; should have no public contact; brief occasional coworker contact is all right; should perform tasks no more complex than SVP 2, entry level work as defined in the Dictionary of Occupational Titles; requires the option to sit or stand at will while still performing essential components of the task at hand. Tr. 81 In response to the representative jobs: hypothetical, the VE identified an electronics worker (light), polisher (sedentary) and a toy stuffer (sedentary). three an eyeglass The ALJ asked the VE to consider whether jobs existed in the national economy for an individual with the same limitations and also to "assume the individual is closely approaching advanced age." Tr. 82. response, the VE identified three jobs he classified as light: In an electronics worker (light), bench assembler (light) and a laundry sorter (light). When plaintiff's counsel inquired whether the jobs were more properly characterized as sedentary due to the sit/stand option, the VE testified that the jobs also may require lifting more than 20 pounds. Tr. 88. Tr. 88. Again, it is undisputed that plaintiff is capable of lifting 20 pounds, which is a light work lifting restriction under the regulations. 22 - OPINION AND ORDER Thus, the ALJ did not apply the incorrect category or use the incorrect grid as a framework for the VE's testimony. In short, the evidence in the record before me clearly supports the ALJ's decision to use aVE, and that rational decision must be upheld. Moore, 216 F. 3d at. 871. Moreover, plaintiff has not demonstrated that the ALJ has made any error consequential the non-disability determination that would undermine the ALJ's step five findings. Accordingly, I conclude that the ALJ did not err in relying upon the VE's testimony at step five. CONCLUSION For the reasons stated above, the Commissioner's decision denying benefits to plaintiff is AFFIRMED. final This action is DISMISSED. IT IS SO ORDERED. DATED this ~ day of NOVEMBER, 2013. ,2tz~.?:~ Malcolm F. Marsh United States District Judge 23 - OPINION AND ORDER
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