Selimovic v. Colvin

Filing 21

ORDER that the Commissioner's decision is REVERSED and this matter is REMANDED for further proceedings as set forth in this Order. The Clerk is DIRECTED to enter judgment. Signed by Magistrate Judge Michelle H Burns on 9/17/14. (LSP)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10
11
12
13
14

)
)
)
Plaintiff,
)
)
vs.
)
Carolyn W. Colvin, Commissioner of the)
)
Social Security Administration,
)
)
Defendant.
)
Selahudin Selimovic,

CIV 13-1248-PHX-MHB
ORDER

15

Pending before the Court is Plaintiff Selahudin Selimovic’s appeal from the Social

16

Security Administration’s final decision to deny his claim for disability insurance benefits

17

and supplemental security income. After reviewing the administrative record and the

18

arguments of the parties, the Court now issues the following ruling.

19

I. PROCEDURAL HISTORY

20

On July 18, 2008, Plaintiff filed applications for disability insurance benefits and

21

supplemental security income alleging disability beginning January 1, 2006. (Transcript of

22

Administrative Record (“Tr.”) at 17, 288-304.) His applications were denied initially and

23

on reconsideration. (Tr. at 144-46, 152-54.) Thereafter, Plaintiff requested a hearing before

24

an administrative law judge. (Tr. at 155.) Hearings were held on January 18, 2011 and June

25

30, 2011, (Tr. at 44-93, 94-143), and the ALJ issued a decision finding that Plaintiff was

26

disabled between January 1, 2006 and January 22, 2009, but that as of January 23, 2009,

27

Plaintiff experienced medical improvement to such a degree that he was no longer disabled

28

(Tr. at 12-43). The Appeals Council denied Plaintiff’s request for review (Tr. at 1-6), making

1

the ALJ’s decision the final decision of the Commissioner. Plaintiff then sought judicial

2

review of the ALJ’s decision pursuant to 42 U.S.C. § 405(g).

3

II. STANDARD OF REVIEW

4

The Court must affirm the ALJ’s findings if the findings are supported by substantial

5

evidence and are free from reversible legal error. See Reddick v. Chater, 157 F.3d 715, 720

6

(9th Cir. 1998); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). Substantial evidence

7

means “more than a mere scintilla” and “such relevant evidence as a reasonable mind might

8

accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401

9

(1971); see Reddick, 157 F.3d at 720.

10

In determining whether substantial evidence supports a decision, the Court considers

11

the administrative record as a whole, weighing both the evidence that supports and the

12

evidence that detracts from the ALJ’s conclusion. See Reddick, 157 F.3d at 720. “The ALJ

13

is responsible for determining credibility, resolving conflicts in medical testimony, and for

14

resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); see

15

Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). “If the evidence can reasonably

16

support either affirming or reversing the [Commissioner’s] conclusion, the court may not

17

substitute its judgment for that of the [Commissioner].” Reddick, 157 F.3d at 720-21.

18

III. THE ALJ’S FINDINGS

19

In order to be eligible for disability or social security benefits, a claimant must

20

demonstrate an “inability to engage in any substantial gainful activity by reason of any

21

medically determinable physical or mental impairment which can be expected to result in

22

death or which has lasted or can be expected to last for a continuous period of not less than

23

12 months.” 42 U.S.C. § 423(d)(1)(A). An ALJ determines a claimant’s eligibility for

24

benefits by following a five-step sequential evaluation:

25

(1) determine whether the applicant is engaged in “substantial gainful activity”;

26

(2) determine whether the applicant has a medically severe impairment or
combination of impairments;

27
28
-2-

1
2
3
4
5

(3) determine whether the applicant’s impairment equals one of a number of listed
impairments that the Commissioner acknowledges as so severe as to preclude the
applicant from engaging in substantial gainful activity;
(4) if the applicant’s impairment does not equal one of the listed impairments,
determine whether the applicant is capable of performing his or her past relevant
work;

6

(5) if the applicant is not capable of performing his or her past relevant work,
determine whether the applicant is able to perform other work in the national
economy in view of his age, education, and work experience.

7

See Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987) (citing 20 C.F.R. §§ 404.1520,

8

416.920). At the fifth stage, the burden of proof shifts to the Commissioner to show that the

9

claimant can perform other substantial gainful work. See Penny v. Sullivan, 2 F.3d 953, 956

10

(9th Cir. 1993).

11

At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful

12

activity since January 1, 2006 – the date Plaintiff became disabled. (Tr. at 21.) At step two,

13

he found that Plaintiff had the following severe impairments from January 1, 2006 through

14

January 22, 2009: pain disorder of right leg, hypertension, posttraumatic stress disorder, and

15

history of alcohol abuse. (Tr. at 21-22.) From January 1, 2006 through January 22, 2009,

16

the ALJ found that Plaintiff’s impairments met listing 1.02A of 20 C.F.R. Part 404, Subpart

17

P, Appendix 1 of the Commissioner’s regulations. Thus, the ALJ found that Plaintiff was

18

disabled between January 1, 2006 through January 22, 2009. (Tr. at 22-24.)

19

Beginning January 23, 2009, however, the ALJ determined that Plaintiff did not have

20

an impairment or combination of impairments that met or medically equaled an impairment

21

listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 of the Commissioner’s regulations. (Tr.

22

at 24-25.) After consideration of the entire record, the ALJ found that beginning January 23,

23

2009, Plaintiff retained “the residual functional capacity to perform light work as defined in

24

20 C.F.R. 404.1567(b) and 416.967(b) specifically as follows: the claimant can lift and/or

25

carry 20 pounds occasionally and 10 pounds frequently; he can stand and/or walk for four

26

hours out of an eight-hour workday with regular breaks but not for more than one hour at a

27

time; he can sit for six hours out of an eight-hour workday with regular breaks; he can

28

occasionally bend, stoop, crouch, and kneel; he is restricted from crawling and balancing; he
-3-

1

is prohibited from climbing ladders, ropes, or scaffolds; he can occasionally climb ramps and

2

stairs; he can occasionally operate foot controls with the left foot; he should avoid

3

concentrated exposure to unprotected heights; he is limited to simple and repetitive tasks; and

4

he can have no work involving more than occasional contact with coworkers and the

5

public.”1 (Tr. at 25-33.) The ALJ determined that Plaintiff is unable to perform past relevant

6

work, but found based on Plaintiff’s age, education, work experience, and residual functional

7

capacity there are jobs that exist in significant numbers in the national economy that Plaintiff

8

can perform. (Tr. at 33-34.) Therefore, the ALJ concluded that Plaintiff’s disability ended

9

on January 23, 2009. (Tr. at 34-35.)
IV. DISCUSSION

10
11

In his brief, Plaintiff contends that the ALJ erred by: (1) failing to properly weigh

12

medical source opinion evidence; and (2) failing to find that there were significant numbers

13

of jobs available for him. Plaintiff requests that the Court remand for determination of

14

benefits.

15

A.

Medical Source Opinion Evidence

16

Plaintiff contends that the ALJ erred by failing to properly weigh medical source

17

opinion evidence. Specifically, Plaintiff argues that the ALJ erred by rejecting the opinion

18

of his treating physician, Delwyn Worthington, M.D., without giving a “legitimate” reason.

19

Plaintiff states that the “ALJ has erred in law by not giving controlling weight” to Dr.

20

Worthington’s opinion.

21

“The ALJ is responsible for resolving conflicts in the medical record.” Carmickle v.

22

Comm’r, Soc. Sec. Admin., 533 F.3d at 1164. Such conflicts may arise between a treating

23

physician’s medical opinion and other evidence in the claimant’s record. In weighing

24

medical source opinions in Social Security cases, the Ninth Circuit distinguishes among three

25

types of physicians: (1) treating physicians, who actually treat the claimant; (2) examining

26
1

27
28

“Residual functional capacity” is defined as the most a claimant can do after
considering the effects of physical and/or mental limitations that affect the ability to perform
work-related tasks.
-4-

1

physicians, who examine but do not treat the claimant; and (3) non-examining physicians,

2

who neither treat nor examine the claimant. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir.

3

1995). Generally, more weight is given to a treating physician’s opinion. See id. The ALJ

4

must provide clear and convincing reasons supported by substantial evidence for rejecting

5

a treating or an examining physician’s uncontradicted opinion. See id.; Reddick, 157 F.3d

6

at 725. An ALJ may reject the controverted opinion of a treating or an examining physician

7

by providing specific and legitimate reasons that are supported by substantial evidence in the

8

record. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); Reddick, 157 F.3d at

9

725.

10

Opinions from non-examining medical sources are entitled to less weight than treating

11

or examining physicians. See Lester, 81 F.3d at 831. Although an ALJ generally gives more

12

weight to an examining physician’s opinion than to a non-examining physician’s opinion,

13

a non-examining physician’s opinion may nonetheless constitute substantial evidence if it

14

is consistent with other independent evidence in the record. See Thomas v. Barnhart, 278

15

F.3d 947, 957 (9th Cir. 2002). When evaluating medical opinion evidence, the ALJ may

16

consider “the amount of relevant evidence that supports the opinion and the quality of the

17

explanation provided; the consistency of the medical opinion with the record as a whole;

18

[and] the specialty of the physician providing the opinion ... .” Orn v. Astrue, 495 F.3d at

19

631.

20

Since the opinion of Dr. Worthington was contradicted by consultative and reviewing

21

doctors’ opinions, as well as, other objective medical evidence, the specific and legitimate

22

standard applies.

23

Historically, the courts have recognized the following as specific, legitimate reasons

24

for disregarding a treating or examining physician’s opinion: conflicting medical evidence;

25

the absence of regular medical treatment during the alleged period of disability; the lack of

26

medical support for doctors’ reports based substantially on a claimant’s subjective complaints

27

of pain; and medical opinions that are brief, conclusory, and inadequately supported by

28

medical evidence. See, e.g., Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); Flaten
-5-

1

v. Secretary of Health and Human Servs., 44 F.3d 1453, 1463-64 (9th Cir. 1995); Fair v.

2

Bowen, 885 F.2d 597, 604 (9th Cir. 1989).

3

In 2003, Plaintiff severely injured his foot and ankle in an auto accident. (Tr. at 436-

4

40.) He had multiple surgeries between the accident and July 2008, when he had a mid-foot

5

fusion. (Tr. at 479-85.)

6

At an October 2008 appointment with Dr. Worthington (an orthopedist), Plaintiff

7

reported that severe pain on the plantar aspect of the right foot and most of his nerve pain

8

were gone after his July 2008 surgery, but he still could not weight bear. (Tr. at 514-16.)

9

Dr. Worthington noted that he suspected Plaintiff was not completely healed and

10

recommended an ankle-foot orthotic to allow the fusion to consolidate. (Tr. at 514-16.)

11

In November, Plaintiff continued to complain of pain to Dr. Worthington and reported

12

that he had not gotten the ordered orthotic. (Tr. at 531-43.) Dr. Worthington noted that if

13

the orthotic was unsuccessful, he would consider amputation below the knee. (Tr. at 531-

14

43.) In December 2008, Plaintiff again reported to Dr. Worthington that he had severe right

15

foot pain, but indicated he could not really use his orthotic because of irritation. (Tr. at 600-

16

15.)

17

In February 2009, Plaintiff returned to Dr. Worthington with complaints of severe

18

pain. (Tr. at 600-15.) Dr. Worthington noted that he was somewhat hypersensitive to pain

19

and indicated that it was out of proportion to the arthrosis that was present. (Tr. at 600-15.)

20

He indicated that Plaintiff may have sympathetic mediated pain disorder. (Tr. at 600-15.)

21

That same month, an electrodiagnostic study of Plaintiff’s right leg and foot showed evidence

22

of severe neuropathy of the deep peroneal nerve and acute denervation of the extensor

23

digitorum brevis muscle. (Tr. at 600-15.) There was no evidence of radiculopathy,

24

peripheral neuropathy, plexopathy, myopathy, or myositis. (Tr. at 600-15.)

25

In March 2009, Dr. Worthington described the electrodiagnostic testing as

26

“interesting.” (Tr. at 616-21.) He reported that Plaintiff was doing better with a brace but

27

still needed a cane to walk. (Tr. at 616-19.) Dr. Worthington also wrote a letter in which he

28

reported that Plaintiff was not pain-free and was “basically not ambulatory.” (Tr. at 600-15.)
-6-

1

He reported that Plaintiff had significant nerve damage to his right foot and was considering

2

amputation. (Tr. at 600-15.) Dr. Worthington concluded, “I do not think he is employable

3

at this time.” (Tr. at 600-15.)

4

In a February 2011 appointment with Dr. Worthington, Plaintiff requested having

5

“everything documented” for an upcoming Social Security hearing. (Tr. at 436-40.) Dr.

6

Worthington noted that, while they had discussed left ankle reconstruction, Plaintiff had

7

never had that procedure. (Tr. at 436-40.) He stated that nothing had changed with respect

8

to Plaintiff’ employability, but recommended wearing a brace to improve ankle stability. (Tr.

9

at 436-40.) In June 2011, Dr. Worthington completed a “Physical Capacities Evaluation”

10

form. (Tr. at 908.) On that form he indicated that Plaintiff could not stand or walk, could

11

sit for one hour per day, and had other exertional, positional, and environmental limitations.

12

(Tr. at 908.)

13

Plaintiff was referred to pain management doctor Ramoun Jones, M.D., in May 2009.

14

(Tr. at 622-37.) At his appointment, he was ambulatory without an assistive device and

15

walked with a normal gait. (Tr. at 622-37.) Both legs were normal on inspection with

16

normal range of motion, muscle strength and tone, and stability. (Tr. at 622-37.) Dr. Jones

17

prescribed narcotic pain medication and gave Plaintiff information on a spinal cord

18

stimulator. (Tr. at 622-37.) In follow-up appointments in June, July, and August, Plaintiff

19

reported continued pain and walked with a cane. (Tr. at 656-689.)

20

In December 2009, Plaintiff told Dr. Jones that his pain was more frequent and the

21

episodes lasted longer. (Tr. at 600-15.) He used a cane, and Dr. Jones adjusted his

22

medications. (Tr. at 656-89.) Plaintiff reported to Dr. Jones in January 2010 that his pain

23

was less frequent and episodes were shorter.

24

moderate-severe limp, but also observed that Plaintiff walked without an assistive device.

25

(Tr. at 656-89.) Plaintiff had monthly appointments with Dr. Jones for most of 2010. (Tr.

26

at 774-808.) He was prescribed a walker in February, but only used it at a single

27

appointment that year (in May). (Tr. at 774-808.) At his appointment in June, Plaintiff used

28

no assistive device. (Tr. at 774-808.)
-7-

(Tr. at 656-89.)

Dr. Jones noted a

1

In April 2011, Dr. Jones prepared a letter in which he stated that Plaintiff was “for the

2

most part incapacitated,” including from working, driving, doing meaningful tasks, and

3

operating heavy machinery. (Tr. at 882.) He also indicated that Plaintiff would “essentially

4

not have function of his right lower extremity from this point forward.” (Tr. at 882.)

5

However, just the month before, Plaintiff presented to his appointment with Dr. Jones

6

without an assistive device. (Tr. at 897.) And, at appointments in April and May, Plaintiff

7

was able to walk with a cane. (Tr. at 887-92.)

8

In July 2009 state agency consultant James Hopkins, M.D., completed a Physical

9

Residual Functional Capacity Assessment form. (Tr. at 639-46.) He determined that

10

Plaintiff could lift and carry 10 pounds frequently and 20 pounds occasionally; stand and

11

walk for about six hours in an eight-hour workday; sit for about six hours in an eight-hour

12

workday; push and pull an unlimited amount; never climb ladders, ropes, and scaffolds; and

13

occasionally climb ramps and stairs, kneel, crouch, and crawl; and must avoid concentrated

14

exposure to extreme cold, extreme heat, vibration, environmental irritants, and hazards. (Tr.

15

at 639-46.)

16

In March 2011, Plaintiff had a consultative examination with Jeffrey Levison, M.D.

17

(Tr. at 869-72.) Dr. Levison noted, “I do believe there could be some deception with today’s

18

exam. He is nicely bronzed. He has a wonderful tan. His hands show very thick calluses

19

bilaterally, suggestive of very hard rigorous-type work with his hands.” (Tr. at 870.) Dr.

20

Levison observed that Plaintiff walked with a marked limp, relied heavily on his cane, and

21

fell several times while performing a tandem gait, which he felt was “histrionic” and “for

22

effect.” (Tr. at 870.) On examination, Plaintiff had full range of motions in all joints

23

(including his hips, knees, and ankles), full muscle strength and intact sensation in his upper

24

and lower extremities, full grip strength, and a negative straight leg raise test. (Tr. at 870.)

25

He noted that Plaintiff’s foot injury appeared stable and not limiting and questioned the

26

necessity of a cane. (Tr. at 870.) Dr. Levison also completed a statement regarding Plaintiff

27

abilities, opining that he could do the following: lift and carry up to 20 pounds continually

28

and up to 50 pounds occasionally; sit, stand, or walk for eight hours each per workday; walk
-8-

1

for up to one-quarter mile; reach, handle, finger, feel, push, pull, and stoop continuously;

2

operate foot controls frequently with his right foot and continuously with his left foot; climb

3

ramps and stairs and balance frequently; climb ladders and scaffolds, kneel, crouch, and

4

crawl occasionally; and never work around unprotected heights or moving mechanical parts.

5

(Tr. at 860-68.)

6

In addition to the evidence set forth above, the ALJ also discussed the findings of

7

impartial medical expert and board-certified orthopedic surgeon, Arthur Lorber, M.D. Dr.

8

Lorber testified that after January 22, 2009, Plaintiff experienced medical improvement as

9

the result of medical treatment and right foot surgery in July 2008. Dr. Lorber stated that

10

Plaintiff has generally recovered from his injuries, his right lower extremity pain was

11

properly treated, and Plaintiff’s pain symptoms significantly lessened after the surgical

12

procedure. (Tr. at 96-117.)

13

In his evaluation of the objective medical evidence, the ALJ first addressed the

14

opinions of Drs. Hopkins and Levison. (Tr. at 31.) The ALJ found that the opinions of these

15

physicians are consistent in that they all assess Plaintiff as able to perform a range of work

16

at the light or medium exertional level with some differences in the degree of specific

17

function-by-function limitations. The ALJ determined that these opinions are reasonable and

18

supported by the record as a whole. Specifically, the ALJ stated that “these opinions are

19

consistent with the physical examination of the consultative examiner, which revealed the

20

claimant had a stable right ankle and full range of motion of the right lower extremity. ...

21

Further, these opinions are corroborated by physical examinations described above that

22

indicate the claimant had a normal gait. Lastly, these opinions are supported by the

23

consultative examiner’s observation that the claimant engaged in rigorous work.” The ALJ

24

clarified his consideration of these opinions stating, “[n]o single assessment has been

25

completely adopted as the residual functional capacity determined herein. I have adopted

26

those specific restrictions on a function-by-function basis that are best supported by the

27

objective evidence as a whole.” (Tr. at 31.)

28
-9-

1

Next, the ALJ addressed the opinion of medical expert, Dr. Lorber, giving “great

2

weight” to his assessment. (Tr. at 31.) The ALJ found that Dr. Lorber’s opinion regarding

3

Plaintiff’s functional limitations was highly credible because it was well-supported by the

4

objective medical evidence. (Tr. at 31.)

5

The ALJ then discussed Dr. Worthington’s opinion stating, “I have given little weight

6

to [his] opinions because they are brief, conclusory, and inadequately supported by clinical

7

findings. ... [His] opinions inadequately provided an explanation for [his] assessment or any

8

specific functional limitations that prevented the claimant from working. Further, [his]

9

opinions are inconsistent with the objective medical evidence as a whole ... which shows the

10

claimant had full range of motion of the right lower extremity. ... Additionally, [his] opinions

11

are in conflict with the physical examinations described above that indicate the claimant had

12

a normal gait. Lastly, [his] opinions are at odds with the consultative examiner’s observation

13

that the claimant appeared to be engaged in rigorous work. ... Accordingly, I give little

14

weight to [his] opinions because they are inconsistent with substantial evidence.” (Tr. at 31-

15

32.)

16

The Court finds that the ALJ properly weighed the medical source opinion evidence,

17

and gave specific and legitimate reasons, based on substantial evidence in the record, for

18

discounting Dr. Worthington’s opinion. The ALJ properly discredited the medical opinion

19

due to inconsistencies with Plaintiff’s treatment record and the medical evidence as a whole.

20

The ALJ also found that his opinion was vague, conclusory, and lacked supporting clinical

21

findings. See, e.g., Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009)

22

(an ALJ “need not accept the opinion of any physician, including a treating physician, if that

23

opinion is brief, conclusory, and inadequately supported by clinical findings”); Tommasetti

24

v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (finding the incongruity between doctor’s

25

questionnaire responses and her medical records provides a specific and legitimate reason

26

for rejecting the opinion); Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) (“We hold

27

that the ALJ properly found that [the physician’s] extensive conclusions regarding [the

28

claimant’s] limitations are not supported by his own treatment notes. Nowhere do his notes
- 10 -

1

indicate reasons why [the physician would limit the claimant to a particular level of

2

exertion].”); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (holding that the ALJ

3

properly rejected a physician’s testimony because “it was unsupported by rationale or

4

treatment notes, and offered no objective medical findings to support the existence of [the

5

claimant’s] alleged conditions”). Therefore, the Court finds no error.

6

B.

The ALJ’s Finding Regarding the Significant Number of Jobs

7

Plaintiff argues that the ALJ’s decision should be overturned because there is not a

8

significant number of jobs available that he could perform. Specifically, Plaintiff claims that

9

the ALJ cannot use the job of “toy stuffer” as possible employment as that job is excluded

10

under 20 C.F.R. Part 404, Subpart P, Appendix 2. In light of the fact that “toy stuffer” would

11

be excluded, Plaintiff further asserts that pursuant to Lounsburry v. Barnhart, 468 F.3d 1111

12

(9th Cir. 2006), the single job availability of “deburrer” does not satisfy the “significant

13

range” requirement.

14

In response, the Commissioner fails to respond and appears to concede Plaintiff’s

15

argument regarding the exclusion of the “toy stuffer” position pursuant to 20 C.F.R. Part 404,

16

Subpart P, Appendix 2. Instead, the Commissioner simply addresses the “deburrer” position

17

contending that 13,110 positions available nationally constitutes a significant number.

18

The burden rests on the Commissioner at the fifth step of the analysis to demonstrate

19

that the claimant is not disabled and can engage in work that exists in significant numbers

20

in the national economy. See 20 C.F.R. § 404.1520(a)(4)(v); Lockwood v. Comm’r of Soc.

21

Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). “An individual shall be determined to be

22

under a disability only if his physical or mental impairments are of such severity that he is

23

not only unable to do his previous work but cannot, considering his age, education, and work

24

experience, engage in any other kind of substantial gainful work which exists in the national

25

economy ... .” 42 U.S.C. § 423(d)(2)(A). “‘[W]ork which exists in the national economy’

26

means work which exists in significant numbers either in the region where such individual

27

lives or in several regions of the country.” Id. In determining whether the claimant retains

28

the ability to perform other work, the ALJ may refer to the Medical-Vocational Guidelines
- 11 -

1

promulgated by the SSA (or “grids”). See 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00;

2

Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576-577 (9th Cir.

3

1988).

4

The grids categorize jobs according to their exertional requirements such as sedentary

5

work, light work, or medium work. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00. The

6

grids calculate whether or not the claimant is disabled based on the claimant’s exertional

7

ability, age, education, and work experience. See id. The grids are a valid basis for denying

8

claims where they completely and accurately describe the claimant’s abilities and limitations.

9

See Tackett v. Apfel, 180 F.3d 1094, 1101-02 (9th Cir. 1999). If the claimant has only

10

exertional limitations, the claim may be resolved based only on the grids. See Lounsburry,

11

468 F.3d at 1115.

12

If the claimant has significant nonexertional limitations, the grids do not apply. See

13

Penny, 2 F.3d at 958-59. If significant nonexertional limitations prevent the claimant from

14

performing the full range of work in any exertional category, the ALJ must take the

15

testimony of a vocational expert to deny the claim. See Burkhart v. Bowen, 856 F.2d 1335,

16

1341 (9th Cir. 1988). If the claimant has both exertional and nonexertional limitations, the

17

ALJ must consult the grids first before considering the testimony of a vocational expert at

18

step five. See Lounsburry, 468 F.3d at 1115. If the grids direct a finding of disability, that

19

finding must be adopted by the Commissioner. See id. at 1116.

20

If not, the ALJ must use the grids as a framework for consideration of how much the

21

nonexertional limitations limit the range of work permitted by the exertional limitations. See

22

Tackett, 180 F.3d at 1102. A nonexertional impairment, if significant, may limit the

23

claimant’s functional capacity in ways not contemplated by the Guidelines. See id. In such

24

instances, the ALJ may not rely on the grids alone for the availability of jobs, but must obtain

25

the testimony of a vocational expert. See id.; Thomas, 278 F.3d at 960; Moore v. Apfel, 216

26

F.3d 864, 869-71 (9th Cir. 2000).

27

The ALJ may meet his burden at step five by asking a vocational expert a hypothetical

28

question based on medical assumptions supported by substantial evidence in the record and
- 12 -

1

reflecting all the claimant’s limitations. See Valentine v. Comm’r of Soc. Sec. Admin., 574

2

F .3d 685, 690 (9th Cir. 2009); Thomas, 278 F.3d at 956; Desrosiers, 846 F.2d at 578

3

(Pregerson, J., concurring) (“The ALJ’s depiction of the claimant’s disability must be

4

accurate, detailed, and supported by the medical record.”).

5

As indicated previously, the ALJ found that Plaintiff is unable to perform past relevant

6

work. He also found that since January 23, 2009, Plaintiff is an individual closely

7

approaching advanced age. Plaintiff was 53-years-old at the time of the June 30, 2011

8

hearing and, presumably, 53-years-old on the date of the ALJ’s September 22, 2011

9

decision.2 The ALJ stated that “[b]eginning January 23, 2009, transferability of job skills is

10

not material to the determination of disability because using the Medical-Vocational Rules

11

as a framework supports a finding that the claimant is ‘not disabled,’ whether or not the

12

claimant has transferable job skills (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P,

13

Appendix 2).” The ALJ further determined that “if the claimant had the residual functional

14

capacity to perform the full range of light work, a finding of “not disabled” would be directed

15

by Medical-Vocational Rule 202.14.” However, the ALJ found that Plaintiff’s ability to

16

perform all or substantially all of the requirements of light work has been impeded by

17

additional limitations. Thus, in order to determine the extent of erosion of the unskilled light

18

occupational base caused by Plaintiff’s additional limitations, the ALJ asked the vocational

19

expert whether jobs exist in the national economy for an individual with Plaintiff’s age,

20

education, work experience, and residual functional capacity.

21

The vocational expert testified that given all of these factors, Plaintiff would be able

22

to perform the requirements of (1) “toy stuffer” – a sedentary, unskilled occupation

23
24
25
26
27
28

2

Age must factor into the ALJ’s disability determination. See 20 C.F.R. §
404.1563(a). In assessing a case, the relevant age is plaintiff’s age on the date of the final
ALJ decision. See Lockwood, 616 F.3d at 1070-71. The grids factor in age by putting a
person into one of “three age categories: younger person (under age 50), person closely
approaching advanced age (age 50-54), and person of advanced age (age 55 or older).” Id.
at 1071 (citing 20 C.F.R. § 404.1563(c)-(e)).
- 13 -

1

consisting of 3,960 positions in the regional economy and 338,920 positions in the national

2

economy, and (2) “deburrer” – a light, unskilled occupation consisting of 113 positions in

3

the regional economy and 13,110 positions in the national economy.

4

As to Plaintiff’s argument regarding the “deburrer” position, the Court first notes that,

5

even assuming the job of “toy stuffer” is excluded, Lounsburry does not apply. In

6

Lounsburry, the claimant was of advanced age (62), retained transferrable skills from her

7

previous employment, and was capable of light work. See id.; 20 C.F.R. Pt. 404, Subpt. P,

8

App. 2. The ALJ found the claimant to be capable of one occupation and concluded that she

9

was not disabled. See Lounsburry, 468 F.3d at 1113.

10

On appeal, the Ninth Circuit held that the ALJ erred by not applying Rule 202.00(c).

11

See id. at 1116; 20 C.F.R. Pt. 404, Subpt. P, App. 2. Rule 202.00(c) provides that “for

12

individuals of advanced age who can no longer perform vocationally relevant past work and

13

who have only skills that are not readily transferable to a significant range of semi-skilled

14

or skilled work that is within the individual’s functional capacity the limitations in vocational

15

adaptability represented by functional restriction to light work warrant a finding of disabled.”

16

Lounsburry, 468 F.3d at 1116; see 20 C.F.R. Pt. 404, Subpt. P, App. 2. The Court held that

17

one job does not satisfy the statute’s “significant range” requirement, and the claimant was,

18

in fact, disabled. See Lounsburry, 468 F.3d at 1116.

19

Plaintiff argues that the “significant range” requirement applies to his case. However,

20

he ignores the plain language of the rule. Rule 202.00(c) speaks only to individuals of

21

advanced age, who retain transferable skills, and are capable of light work. See 20 C.F.R.

22

Pt. 404, Subpt. P, App. 2. The rule does not apply where, as here, Plaintiff is a younger

23

person, with no finding as to transferable skills, and is capable of light work. The facts and

24

holding of Tommasetti v. Astrue, 533 F.3d 1035 (9th Cir. 2008) are instructive on this point.

25

In Tommasetti, the claimant was of advanced age, retained transferrable skills, and

26

was capable of sedentary work. See id. at 1043. The ALJ found him not disabled based on

27

his ability to perform one job. See id. On appeal, the claimant argued that the “significant

28

range” requirement applied to his case. See id. The Ninth Circuit disagreed and “rejected
- 14 -

1

the claimant’s attempt to graft rules applicable to the light exertion grid onto the sedentary

2

exertion grid.” Id. at 1044. Here too, the Court rejects Plaintiff’s attempt to apply rules for

3

individuals of advanced age with transferable skills to younger individuals with no finding

4

as to transferable skills.

5

Although Lounsburry does not apply to the instant case, the Court finds that the ALJ

6

failed to identify a significant number of “light work” jobs available in the national economy

7

that can be performed by Plaintiff. While one job within a relevant category can be

8

sufficient, as long as the one occupation still has a significant number of positions that exist

9

in the national economy, see Udell v. Colvin, 2013 WL 4046465, at *7 (S.D. Cal. Aug. 8,

10

2013); see, e.g., Tommasetti, 533 F.3d at 1044, the Ninth Circuit has “never set out a

11

bright-line rule for what constitutes a ‘significant number’ of jobs,” but instead finds a

12

“comparison to other cases instructive.” Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012).

13

In Beltran, the court determined that 135 regional jobs and 1,680 national jobs were

14

not a significant number of jobs. See id. at 389-90. In making that determination, the Ninth

15

Circuit considered cases that addressed what constitutes a significant number of jobs. See

16

id. at 389 (citing Barker v. Sec’y of Health & Human Servs., 882 F.2d 1474, 1479 (9th Cir.

17

1989) (1,266 jobs regional jobs significant); Martinez v. Heckler, 807 F.2d 771, 775 (9th Cir.

18

1987) (amended) (3,750 to 4,250 regional jobs significant); Thomas, 278 F.3d at 960 (1,300

19

jobs in the Oregon region and 622,000 in the national economy significant); Johnson v.

20

Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995) (30,000 regional jobs significant); Moncada v.

21

Chater, 60 F.3d 521, 524 (9th Cir. 1995) (2,300 regional jobs and 64,000 nationwide jobs

22

significant)).

23

Additionally, Ninth Circuit cases have found 64,000 jobs nationwide to be significant,

24

Moncada, 60 F.3d at 524, as well as larger numbers. See Thomas, 278 F.3d at 960 (622,000

25

jobs in the national economy significant); Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000)

26

(7,700 regional and 125,000 national jobs significant). Further, district courts considering

27

the Ninth Circuit findings have determined that smaller numbers of jobs are not significant.

28

See Coletta v. Massanari, 163 F.Supp.2d 1101, 1106 (N.D. Cal. 2001) (363 jobs in the state
- 15 -

1

economy and 4,752 positions in the national economy not significant); Valencia v. Astrue,

2

No. C 11-06223 LB, 2013 WL 1209353, at *18 (N.D. Cal. Mar. 25, 2013) (114 regional jobs

3

and 14,082 national jobs not significant).

4

Here, the 113 positions in the regional economy is substantially less than the number

5

of regional jobs set forth in the cases that the Ninth Circuit has found to be significant

6

(ranging, as noted above, from 1,266 to 30,000 regional jobs). Further, the 13,110 positions

7

in the national economy is closer to the number of jobs found to be not significant (14,082

8

national jobs identified in Valencia, 2013 WL 1209353, at *18) than significant (64,000

9

national jobs identified by the Ninth Circuit in Moncada, 60 F.3d at 524). Accordingly, the

10

Court finds that the number of jobs available for the “deburrer” position is not significant.

11

The Court notes that the ALJ undoubtedly based his decision regarding significant

12

numbers, in part, by considering the number of jobs for both the “deburrer” position and the

13

“toy stuffer” position. As stated above, however, Plaintiff argues, and the Commissioner

14

appears to concede, that the ALJ cannot use the job of “toy stuffer” as possible employment

15

for Plaintiff as that job is excluded under 20 C.F.R. Part 404, Subpart P, Appendix 2.

16

In this case, the ALJ concluded that Plaintiff has the residual functional capacity to

17

perform light work, but stated that Plaintiff’s ability to perform all or substantially all of the

18

requirements of light work has been impeded by additional limitations. As such, the level

19

dictated by the ALJ’s residual functional capacity assessment presumably falls somewhere

20

between light and sedentary. If a plaintiff’s exertional level falls between two rules which

21

direct opposite conclusions under the grids, i.e., “not disabled” at the higher exertional level

22

and “disabled” at the lower exertional level, the ALJ “is required to call a vocational expert

23

and hear testimony as to whether the claimant can perform enough light jobs in the national

24

economy to warrant a finding of ‘not disabled.’” Desrosiers, 846 F.2d at 579-80.

25
26
27
28
- 16 -

1

If a claimant is closely approaching advanced age, has no transferable skills,3 and is

2

limited to sedentary work, the ALJ must find that claimant disabled based on the sedentary

3

grid. However, if a claimant with the same characteristics is able to perform light work, the

4

Medical-Vocational Guidelines direct a conclusion of not disabled. See 20 C.F.R. Pt. 404,

5

Subpt. P, App. 2, § 202.14 (directing a finding of “not disabled” for claimant who is closely

6

approaching advanced age, who has no transferable skills, and who is functionally capable

7

of performing light work); 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 201.00(g) (directing a

8

finding of “disabled” for claimant who is closely approaching advanced age, who has no

9

transferable skills, and who is functionally limited to sedentary work).

10

In Distasio v. Shalala, 47 F.3d 348 (9th Cir. 1995), “[t]he ALJ found that [the plaintiff]

11

was capable of light work, but with limitations.” Id. at 349. “The vocational expert testified

12

that [the plaintiff] could only perform what she believed were sedentary jobs [and] [t]he

13

[ALJ] accepted the testimony of the vocational expert without qualification.” Id. Because

14

“[t]he [ALJ] failed to account for the discrepancy between a finding that [the plaintiff] could

15

perform light work and was therefore not disabled, [and] the [vocational expert’s] testimony

16

establishing that, at best, [the plaintiff] could perform jobs that fell within the sedentary

17

category,” the Ninth Circuit reversed and remanded for an award of benefits. Id. at 350. The

18

case at issue resembles Distasio.

19

In particular, the ALJ here also found Plaintiff capable of light work with limitations,

20

and accepted the vocational expert’s testimony regarding the availability of the sedentary

21

“toy stuffer” position and the light “deburrer” position without qualification. However, the

22

Court has found that the ALJ failed to identify a significant number of “light work” jobs

23

available in the national economy that can be performed by Plaintiff.

24

Thus, in order to find that Plaintiff is not disabled at the fifth step of the sequential

25

evaluation process, the ALJ had to provide evidence that light jobs exist in significant

26
27
28

3

The ALJ did not reach “transferability of job skills,” as he concluded it was “not
material.” If necessary on remand, the ALJ should address whether plaintiff has transferable
skills.
- 17 -

1

numbers in the national economy that he can perform, given the residual functional capacity

2

assessment made by the ALJ. See 20 C.F.R. § 404.1560(c)(2). The Court cannot confidently

3

conclude that the ALJ’s step five determination is supported by substantial evidence, and this

4

issue could have a decisive effect on Plaintiff’s disability determination. If Plaintiff is found

5

capable only of sedentary work, the grids may mandate a finding of “disabled.” See 20

6

C.F.R. Pt. 404, Subpt. P, App. 2, § 201.00(g)

7

“R]emand for further proceedings is appropriate where there are outstanding issues

8

that must be resolved before a determination can be made, and it is not clear from the record

9

that the ALJ would be required to find claimant disabled if all the evidence were properly

10

evaluated.” Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012) (citing Vasquez v. Astrue,

11

572 F.3d 586, 593 (9th Cir. 2009)). “[T]he proper course, except in rare circumstances, is

12

remand to the agency for additional investigation or explanation.” INS v. Ventura, 537 U.S.

13

12, 16 (2002) (per curiam). The Ninth Circuit has held that when “additional proceedings

14

can remedy defects in the original administrative proceeding, a social security case should

15

be remanded.” Marcia v.. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990) (remanding “to the

16

Secretary for proper consideration of step three equivalence”). In this case, remand is

17

appropriate for renewed consideration at Step Five as to whether there are a significant

18

number of jobs in the national economy that can be performed by Plaintiff.

19

\\\

20

\\\

21

\\\

22

\\\

23

\\\

24

\\\

25

\\\

26

\\\

27

\\\

28

\\\
- 18 -

1
2
3

V. CONCLUSION
For the reasons discussed in this Order, the Commissioner’s decision is reversed and
this matter is remanded for further administrative proceedings.

4

Accordingly,

5

IT IS ORDERED that the Commissioner’s decision is REVERSED and this matter

6

is REMANDED for further proceedings as set forth in this Order. The Clerk of the Court

7

is DIRECTED to enter judgment accordingly.

8

DATED this 17th day of September, 2014.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 19 -