Torres v. Colvin

Filing 45

ORDER, the Commissioner's disability determination is aggirmed; the Clerk is directed to enter judgment in favor of the Commissioner and against Plaintiff and to terminate this action. Signed by Magistrate Judge Bridget S Bade on 4/29/15. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jose Carlos Torres,

No. CV-13-02300-PHX-BSB
Plaintiff,

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v.

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ORDER

Carolyn W. Colvin,

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Defendant.

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Jose Carlos Torres (Plaintiff) seeks judicial review of the final decision of the

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Commissioner of Social Security (the Commissioner) denying his application for benefits

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under the Social Security Act (the Act). The parties have consented to proceed before a

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United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and have filed briefs in

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accordance with Local Rule of Civil Procedure 16.1. For the following reasons, the

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Court affirms the Commissioner’s decision.

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I.

Procedural Background

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On June 9, 2009, Plaintiff filed an application for a period of disability and

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disability insurance benefits under Title II of the Act. (Tr. 15.)1 Plaintiff alleged that he

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had been disabled since January 7, 2008. (Id.) After the Social Security Administration

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(SSA) denied Plaintiff’s initial application and his request for reconsideration, he

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(Doc. 39.)

Citations to “Tr.” are to the certified administrative transcript of record.

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requested a hearing before an administrative law judge (ALJ).

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hearing, the ALJ issued a decision finding Plaintiff not disabled under the Act. (Tr. 18-

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27.) This decision became the final decision of the Commissioner when the Social

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Security Administration Appeals Council denied Plaintiff’s request for review. (Tr. 1-6);

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see 20 C.F.R. § 404.981 (explaining the effect of a disposition by the Appeals Council).

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Plaintiff now seeks judicial review of this decision pursuant to 42 U.S.C. § 405(g).

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II.

After conducting a

Administrative Record

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The record before the Court establishes the following history of diagnosis and

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treatment related to Plaintiff’s alleged impairments. The record also includes opinions

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from State Agency Physicians who examined Plaintiff or reviewed the records related to

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his impairments, but who did not provide treatment.

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A.

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In July 2008, Plaintiff saw Dr. Bapu Aluri, M.D., to establish care. (Tr. 265.)

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Plaintiff reported a thirty-year history of seizures and estimated he had experienced at

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least ten seizures since January 2008. (Id.) He reported symptoms including a “weird

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sensation” (which Dr. Aluri identified as an aura), transient disturbances in his ability to

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express and understand language (aphasia), and loss of consciousness. (Id.) Plaintiff

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denied other seizure symptoms such as tongue biting or loss of bladder or bowel control.

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(Id.) Plaintiff reported that “a vagus nerve stimulator [had been] placed without any

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improvement.” (Id.) Dr. Aluri noted that the stimulator would be removed if Plaintiff

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responded to other treatment. (Tr. 266.) He diagnosed epileptic seizures and prescribed

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medication. (Tr. 265-67.)

Medical Treatment Evidence

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During a September 2, 2008 appointment with Dr. Aluri, Plaintiff reported two

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seizures in the previous two days and stated that he had run out of one of his seizure

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medications, Lamictal. (Tr. 268-69.) Plaintiff reported “weird sensation [aura],” loss of

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consciousness, and loss of awareness. (Id.) Dr. Aluri again assessed epilepsy. (Id.) On

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October 13, 2008, Plaintiff told Dr. Aluri that he had not had any seizures since his last

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visit.

(Tr. 270-71.)

On November 24, 2008, Plaintiff reported three tonic clonic

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convulsions, stating that he “had the flu and [his] seizures returned.” (Tr. 272.) He

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reported a “weird sensation [aura]” but denied aphasia, loss of consciousness, or other

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seizure symptoms. (Tr. 272.) During a January 7, 2009 appointment with Dr. Aluri,

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Plaintiff reported three tonic clonic convulsions in the past month, but denied symptoms

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other than a “weird sensation [aura].” (Tr. 274.) Dr. Aluri noted that Plaintiff’s seizures

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were under “much better control.” (Id.) The record indicates that Plaintiff returned to

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Dr. Aluri’s office five more times in 2009, four times in 2010, and seven times in 2011.

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On February 23, 2009, Plaintiff reported five tonic clonic convulsions since his

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January 2009 visit. (Tr. 276.) On April 7, 2009, Plaintiff reported no seizures in March

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and a couple of seizures in April. (Tr. 278.) On June 25, 2009, Plaintiff reported “at

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least” six tonic clonic convulsions since his last visit. (Tr. 280.) On August 31, 2009,

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Plaintiff reported no seizures in the last three weeks. (Tr. 282.) On October 29, 2009,

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Plaintiff reported five tonic clonic convulsions since his last visit. (Tr. 285.) On April

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28, 2010, Plaintiff reported three “small seizures” since his last visit. (Tr. 327.) On May

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27, 2010, Plaintiff reported two seizures since his last visit. (Tr. 329.) On August 11,

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2010, Plaintiff reported two seizures in early June, but none during the past two months.

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(Tr. 365.)

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appointment. (Tr. 362.)

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On September 30, 2010, Plaintiff reported three seizures since his last

On January 10, 2011, Plaintiff reported five seizures since his last appointment.

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(Tr. 360.)

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appointment. (Tr. 357.) On April 8, 2011, Plaintiff reported three seizures since his last

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visit. (Tr. 354.) On May 20, 2011, Plaintiff reported three seizures since his last visit.

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(Tr. 351.) On July 1, 2011, Plaintiff reported four small seizures and one strong seizure

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since his last visit. (Tr. 348.) On September 1, 2011, Plaintiff reported two seizures

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since his last visit. (Tr. 345.) On November 4, 2011, Plaintiff reported three “events”

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that lasted a “couple seconds” since his last visit. (Tr. 342.)

On February 21, 2011, Plaintiff reported no seizures since his last

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In July 2008, September 2008, and May 2011, Plaintiff reported a loss of

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consciousness in connection with his seizures. (Tr. 265, 268, 351.) Otherwise, Plaintiff

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repeatedly denied seizure symptoms other than a “weird sensation [aura].” (Tr. 276-84,

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327-30, 342, 67.) In June 2009, an MRI of Plaintiff’s brain was normal. (Tr. 288.) In

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April 2010, Dr. Aluri noted that Plaintiff’s vagus nerve stimulator had been removed.

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(Tr. 327.)

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Plaintiff’s seizure medications, Keppra, at Plaintiff’s next appointment if he continued to

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do well.

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(Tr. 363, 366.)

In May 2010, Dr. Aluri stated that he would consider reducing one of

(Tr. 330.)

Dr. Aluri subsequently tapered Plaintiff off that medication.

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On April 8, 2011, Plaintiff told Dr. Aluri that he had not taken a seizure

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medication that Dr. Aluri prescribed in October 2009, Vimpat, because his health

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insurance denied coverage. (Tr. 354.) The record does not reflect when the insurance

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company denied coverage for the medication or whether Plaintiff ever took the

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medication. (Tr. 354, 286 (“start Vimpat” in October 2009).) Dr. Aluri did not record

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serum drug levels. (Tr. 268-84, 327-30, 342-67.)

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2.

Treatment Related to Depression

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During his initial appointment with Dr. Aluri in July 2008, Plaintiff reported

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depression but stated that it improved with treatment. (Tr. 265.) Dr. Aluri did not

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diagnose depression or prescribe anti-depressant medication at that visit. (Tr. 265-67).

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Between October 2008 and June 2009, Dr. Aluri prescribed anti-depressant

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medication and noted that Plaintiff’s depression was better with treatment. (Tr. 270.) He

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did not record any abnormal psychiatric examination findings. (Tr. 270-81.) Beginning

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in August 2009, Dr. Aluri diagnosed depression and stated that, with treatment, it was “in

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remission.” (Tr. 283, 328, 330, 343, 346, 349, 352, 355, 358, 361, 363, 366.)

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B.

Medical Opinion Evidence
1.

Dr. Aluri

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On May 9, 2011, Dr. Aluri wrote a letter “to whoever it may concern” stating that

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Plaintiff had intractable epilepsy that was not controlled with medication, Plaintiff had

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seizures regularly, and the prognosis for controlling Plaintiff’s seizures did “not look

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good.” (Tr. 341.) Dr. Aluri noted that a nerve stimulator was ineffective and that

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Plaintiff was currently taking two anti-epileptic medications. (Id.)

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2.

Dr. Lloyd Anderson

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On February 11, 2010, state agency physician Lloyd Anderson reviewed the

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record and completed a physical residual functional capacity (RFC) assessment.

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(Tr. 292.) He opined that Plaintiff did not have any exertional limitations, but he should

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not climb ladders, ropes, or scaffolds, and should avoid machinery and heights. (Tr. 293,

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294-96.) Dr. Anderson concluded that the record lacked the documentation regarding

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seizures, such as drug serum levels and accurate third-party descriptions of seizures and

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the frequency of seizures, that “obscure[d] credibility” and precluded a finding of

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presumptively disabling epilepsy. (Tr. 297); see 20 C.F.R. pt. 404, subpt. P, app. 1

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§ 11.00A.

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3.

Dr. Martha Goodrich

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On October 19, 2010, state agency physician Dr. Goodrich reviewed the record

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and completed a physical RFC assessment. (Tr. 70-71.) She opined that Plaintiff did not

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have any exertional limitations, but he should not climb ladders, ropes, or scaffolds, and

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should avoid machinery and heights. (Id.)

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4.

Dr. Ashley Hart

On April 12, 2010, Plaintiff saw state agency psychologist Ashley Hart for a

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psychological evaluation for his disability benefits claim.

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experienced seizures once every five or six weeks, and estimated that he had ten seizures

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during the past year. (Tr. 372, 375.) Plaintiff stated that he could carry out most aspects

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of daily living and go shopping.

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examination, Dr. Hart opined that Plaintiff had mildly deficient memory skills, good

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social interaction, and “very good” personal activities of daily living. (Tr. 371-76.)

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(Tr. 372.)

Plaintiff reported that he

After conducting a psychological

Dr. Eric Penner and Dr. Eugene Campbell

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As part of the administrative proceedings, state agency psychologists Eric Penner

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(Tr. 322-24) and Eugene Campbell (Tr. 72-73) reviewed the record and opined that

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Plaintiff had abilities consistent with unskilled work. (Id.) See 20 C.F.R. § 404.1568(a)

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(unskilled work).

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III.

The Administrative Hearing

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Plaintiff was in his early fifties at the time of the administrative hearing and the

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ALJ’s decision. (Tr. 36.) He had a degree as an electrician from the University of

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Mexicali in Mexico. (Tr. 37.) Plaintiff had past relevant work as a janitor and an

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appliance repair person. (Tr. 40.) Plaintiff testified that he worked at a casino as a

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housekeeper from 1994 to 2008. (Id.) He testified that he had three to five seizures a

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month, and that he became depressed and incapacitated for several days after a seizure.

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(Tr. 41, 47-51.) Plaintiff testified that he “hardly ever” went out alone and that he had

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never driven. (Tr. 45.) He testified that he cooked if he had to, washed dishes, mopped

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and swept, did laundry, helped with grocery shopping, and raked leaves. (Tr. 42-43.)

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The vocational expert testified that an individual with the limitations identified in

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the ALJ’s RFC2 could perform Plaintiff’s past relevant work as an appliance repair

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person as actually performed, and could perform other work that existed in significant

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numbers in the national economy. (Tr. 54-58.)

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IV.

The ALJ’s Decision

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A claimant is considered disabled under the Social Security Act if he is unable “to

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engage in any substantial gainful activity by reason of any medically determinable

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physical or mental impairment which can be expected to result in death or which has

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lasted or can be expected to last for a continuous period of not less than 12 months.” 42

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U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 1382c(a)(3)(A) (nearly identical standard for

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supplemental security income disability insurance benefits). To determine whether a

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As set forth in Section IV(B), the ALJ found that Plaintiff had the RFC to
“perform a wide range of medium work,” with no exertional limitations, but that he could
“never climb ladders,” “only occasionally balance,” and “must avoid all exposure to
heights and moving machinery.” (Tr. 22). The ALJ also found that Plaintiff was able “to
understand, remember, and carry out simple job instructions only; and he has a fair ability
to complete a workweek without psychological interruptions, fair is defined as limited
but satisfactory.” (Id.)
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claimant is disabled, the ALJ uses a five-step sequential evaluation process. See 20

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C.F.R. §§ 404.1520, 416.920.

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A.

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In the first two steps, a claimant seeking disability benefits must initially

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demonstrate (1) that he is not presently engaged in a substantial gainful activity, and

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(2) that his medically determinable impairment or combinations of impairments is severe.

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20 C.F.R. §§ 404.1520(b) and (c), 416.920(b) and (c). If a claimant meets steps one and

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two, there are two ways in which he may be found disabled at steps three through five.

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At step three, he may prove that his impairment or combination of impairments meets or

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equals an impairment in the Listing of Impairments found in Appendix 1 to Subpart P of

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20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii).

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416.920(d). If so, the claimant is presumptively disabled. If not, the ALJ determines the

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claimant’s RFC.

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determines whether a claimant’s RFC precludes him from performing his past relevant

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work. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant establishes this prima facie

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case, the burden shifts to the government at step five to establish that the claimant can

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perform other jobs that exist in significant number in the national economy, considering

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the claimant’s RFC, age, work experience, and education. 20 C.F.R. §§ 404.1520(g),

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416.920(g). If the government does not meet this burden, then the claimant is considered

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disabled within the meaning of the Act.

The Five Step Sequential Evaluation Process

20 C.F.R. §§ 404.1520(d),

20 C.F.R. §§ 404.1520(e), 416.920(e).

At step four, the ALJ

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B.

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Applying the five-step sequential evaluation process, the ALJ found that Plaintiff

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had not engaged in substantial gainful activity since the alleged disability onset date,

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January 7, 2008. (Tr. 19.) At step two, the ALJ found that Plaintiff had the following

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severe impairments: epilepsy and depression, 20 C.F.R. 404.1520(c). (Id.) The ALJ

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found that Plaintiff did not have an impairment or combination of impairments that

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significantly limited (or was expected to significantly limit) his ability to perform basic

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work-related activities for twelve consecutive months. (Tr. 21.) The ALJ specifically

The ALJ’s Application of the Five Step Evaluation Process

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found the “medical evidence [did] not show the severity or frequency of seizure activity

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required to meet or equal the criteria of listings 11.02 or 11.03.” (Id.)

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The ALJ found that Plaintiff had the RFC to “perform a wide range of medium

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work.” (Tr. 22.) The ALJ found that Plaintiff did not have any exertional limitations,

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however, he could never climb ladders, and “must avoid all exposure to heights and

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moving machinery.”

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remember, and carry out simple job instructions, and he had “a fair [limited but

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satisfactory] ability to complete a workweek without psychological interruptions . . . .”

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(Id.)

(Id.)

The ALJ further found that Plaintiff could understand,

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Based on Plaintiff’s and the vocational expert’s testimony, the ALJ found that

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Plaintiff could perform his past relevant work as an appliance repair person as it was

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“actually performed.” (Tr. 25, Tr. 54 (characterizing Plaintiff’s past relevant work as an

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appliance repair person).) The ALJ noted the vocational expert’s testimony that to the

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extent a vacuum cleaner is considered moving machinery, Plaintiff must avoid it based on

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his RFC. (Tr. 25, Tr. 56.) The ALJ also noted that Plaintiff testified that his past work at

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the casino involved repairing appliances. (Tr. 25, Tr. 56.) Plaintiff testified that he

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repaired machinery, but did not test vacuums or use machines to clean the casino.

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(Tr. 56.) He testified that he sat at a table to repair the machines and assemble new parts.

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(Id.) The vocational expert testified that this would not involve “moving machinery.”

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(Tr. 57.) Accordingly, the ALJ found that Plaintiff could perform his past relevant work

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as an appliance repair person, as it was actually performed. (Tr. 25.)

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The ALJ alternatively found that Plaintiff could perform other work that existed in

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significant numbers in the national economy. (Tr. 25-26.) The ALJ specifically found

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that Plaintiff could perform work as a janitor (DOT 381.687-018), a laundry worker

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(DOT 361.684-014), and a hand packager (DOT 706.684-022). (Tr. 26.) The ALJ

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concluded that Plaintiff had not been under a disability as defined in the Act from

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January 7, 2008 through the date of her decision. (Tr. 26.) Therefore, the ALJ denied

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Plaintiff’s application for a period of disability and disability insurance benefits.

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V.

Standard of Review

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The district court has the “power to enter, upon the pleadings and transcript of

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record, a judgment affirming, modifying, or reversing the decision of the Commissioner,

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with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). The district

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court reviews the Commissioner’s final decision under the substantial evidence standard

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and must affirm the Commissioner’s decision if it is supported by substantial evidence

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and it is free from legal error. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996);

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Ryan v. Comm’r of Soc. Sec. Admin., 528 F.3d 1194, 1198 (9th Cir. 2008). Even if the

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ALJ erred, however, “[a] decision of the ALJ will not be reversed for errors that are

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harmless.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

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Substantial evidence means more than a mere scintilla, but less than a

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preponderance; it is “such relevant evidence as a reasonable mind might accept as

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adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971)

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(citations omitted); see also Webb v Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). In

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determining whether substantial evidence supports a decision, the court considers the

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record as a whole and “may not affirm simply by isolating a specific quantum of

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supporting evidence.”

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quotation and citation omitted).

Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (internal

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The ALJ is responsible for resolving conflicts in testimony, determining

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credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th

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Cir. 1995). “When the evidence before the ALJ is subject to more than one rational

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interpretation, [the court] must defer to the ALJ’s conclusion.” Batson v. Comm’r of Soc.

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Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004) (citing Andrews, 53 F.3d at 1041).

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VI.

Plaintiff’s Claims

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Plaintiff raises the following claims: (1) the ALJ erred at step three of the

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sequential evaluation process by failing to evaluate whether Plaintiff’s impairments met

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or equaled a Listing (Doc. 40 at 11-12) and by failing to find that Plaintiff’s epilepsy met

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Listing 11.02 (Doc. 40 at 8-11); (2) the ALJ erred by formulating an RFC that did not

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include additional epilepsy precautions (Doc. 40 at 12, 14); (3) the ALJ erred by

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concluding that Plaintiff could perform his past relevant work (Doc. 40 at 12-13); and

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(4) the ALJ erred by finding that Plaintiff could perform other work that existed in

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significant numbers in the national economy. (Doc. 40 at 13-15.)3 The Court considers

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these claims below.

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A.

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Plaintiff argues that the ALJ erred at step three of the sequential evaluation

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process by failing to consider whether Plaintiff’s impairments met or equaled a listed

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impairment. (Doc. 40 at 11-12.) He further argues that the ALJ erred by concluding that

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Plaintiff’s epilepsy did not meet Listing 11.02. (Doc. 40 at 8-11.) As discussed below,

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the Court concludes that the ALJ did not err at step three.

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The ALJ did not Err at Step Three

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The ALJ Made a Step-Three Determination

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As an initial matter, the record reflects that the ALJ made a step-three finding.

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(Tr. 21.) Specifically, the ALJ found that that “[t]he medical evidence does not show the

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severity or frequency of seizure activity required to meet or equal the criteria of listings

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11.02 or 11.03.”4 (Id.) Accordingly, the ALJ did not err by failing to make a step-three

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finding.

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Plaintiff’s epilepsy did not meet Listing 11.02.

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Additionally, as discussed below, the ALJ did not err by concluding that

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Plaintiff identifies her claims as follows: (1) the ALJ erred by failing to find the
claimant’s epilepsy met the listing; (2) the ALJ erred by misapplying the step three and
four analysis; and (3) the ALJ erred by finding alternate jobs that do not comply with the
RFC for the claimant. (Doc. 40 at 8.) Because the manner in which Plaintiff labeled his
claims does not accurately reflect the nature of his claims, the Court re-labeled Plaintiff’s
claims.
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To meet the criteria for Listing 11.03, a claimant must show that he experiences
minor motor (petit mal) seizures more frequently than once weekly in spite of compliance
with prescribed treatment for at least three months. SSR 87-6, 1987 WL 109841, at *3.
Plaintiff does not argue that he meets or equals Listing 11.03. (Doc. 40.)

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2.

Plaintiff’s Epilepsy does not Meet Listing 11.02

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Conditions contained in the Listing of Impairments (Listings) are considered so

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severe that “they are irrebuttably presumed disabling, without any specific finding as to

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the claimant’s ability to perform his past relevant work or any other jobs.” Lester, 81

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F.3d at 828. The Listings were “designed to operate as a presumption of disability that

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makes further inquiry unnecessary.” Sullivan v. Zebley, 493 U.S. 521, 532 (1990). If a

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claimant shows that his impairment or combination of impairments meets or equals a

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Listing, he will be found presumptively disabled. See 20 C.F.R. §§ 416.925-416.926;

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Sullivan, 493 U.S. at 531 (the claimant has the burden of proving that he satisfies the

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criteria of a listed impairment).

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Plaintiff contends that the evidence establishes that his epilepsy meets Listing

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11.02 and, therefore, the ALJ erred at step three. (Doc. 40 at 8-11.) The Commissioner

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disputes this assertion.

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Plaintiff must show the following:

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(Doc. 42.)

To be considered disabled under Listing 11.02,

[C]onvulsive epilepsy [grand mal or psychomotor] . . . documented by
detailed description of a typical seizure pattern, including all associated
phenomena, occurring more frequently than once a month in spite of at
least three months of prescribed treatment. With either
(A) daytime episodes (loss of consciousness and convulsive seizures), or
(B) nocturnal episodes manifesting residuals which interfere significantly
with activity during the day.
20 C.F.R. Part 404, Subpt. P, App. 1 § 11.02.

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Listing 11.00A further provides that at least one detailed description of a typical

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seizure is required and, if professional observation is not available, “[t]estimony of

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persons other than the claimant is essential for description of type and frequency of

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seizures . . . .” 20 C.F.R. pt. 404, subpt. P, app. 1 § 11.00(A). “The description includes

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the presence or absence of aura, tongue bites, sphincter control, injuries associated with

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the attack, and postictal phenomena.” Id. Additionally, Listing § 11.00A provides that:

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Under 11.02 . . ., the criteria can be applied only if the impairment persists
despite the fact that the individual is following prescribed antiepileptic
treatment. Adherence to prescribed antiepileptic therapy can ordinarily be
determined from objective clinical findings in the report of the physician

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currently providing treatment for epilepsy . . . . When seizures are occurring
at the frequency stated in 11.02 or 11.03, evaluation of the severity of the
impairment must include consideration of the serum drug levels.

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20 C.F.R. Part 404, Subpt. P, App. 1 § 11.00A; see also SSR. 87-6, 1987 WL 109184, at

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*2 (“In every instance, the record of anticonvulsant blood levels is required before a

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claim can be allowed.”).

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Substantial evidence supports the ALJ’s finding that Plaintiff’s seizures did not

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occur at the frequency required by Listing 11.02.5 (Tr. 21.) The record indicates that, at

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times, Plaintiff went a month or more without a seizure. (Tr. 278 (no seizures in March

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2009), Tr. 282 (August 2009 report of no seizures in the last three weeks), Tr. 365

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(August 2010 report of no seizures in the past two months), Tr. 357 (February 2011

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report of some “sensation before seizure” but no seizures since his last visit), Tr. 342

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(November 2011 report of three “events” since the last visit which “last[ed] [a] couple of

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seconds”)). Although, as Plaintiff notes, there is other evidence in the record indicating

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that Plaintiff reported more frequent seizures at other times, the court must uphold the

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ALJ’s rational findings of fact, even if evidence exists to support more than one rational

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interpretation.6 See Batson, 359 F.3d at 1193; Andrews v. Shalala, 53 F.3d 1035, 1039-

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40 (9th Cir. 1995).

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Additionally, even if Plaintiff established the required frequency and severity of

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seizures (which the Commissioner does not concede (Doc. 42 at 12)), it is not clear

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Although the ALJ did not explicitly discuss the evidence supporting her stepthree determination in the section discussing step three, she discussed that evidence
elsewhere in her decision. See Lewis v. Apfel, 236 F.3d 503, 512, 514 (9th Cir. 2001)
(upholding a step-three finding when the ALJ stated that the claimant did not meet a
listing and found that the claimant’s epilepsy was controlled with treatment when the
ALJ did not recite the evidence supporting his conclusion under the “Findings” section of
his decision, but discussed it elsewhere).
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To the extent Plaintiff relied on Dr. Aluri’s opinion to support his argument that
the ALJ erred at step three (Doc. 40 at 11), that argument is unpersuasive because the
ALJ found that Dr. Aluri’s assessment was vague and that the frequency and severity of
Plaintiff’s seizure activities noted in his opinion were not supported by the medical
record. (Tr. 24.) Plaintiff does not argue that the ALJ erred in weighing the medical
source opinion evidence, including Dr. Aluri’s opinion. (Doc. 40.)

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whether Plaintiff fully complied with treatment and there are no drug serum levels in the

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record.7 Plaintiff asserts that blood tests were ordered and reviewed with him. (Doc. 43

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at 6 (citing Tr. 271, 273, 275, 277, 346, 349).) However, Plaintiff concedes that “there

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are no drug serum levels recorded to show the claimant was taking his medication . . . .”

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(Doc. 43 at 4.) “An ALJ cannot allow a claim under the epilepsy listing without a record

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of anticonvulsant blood levels.” Lewis v. Apfel, 236 F.3d 503, 513 (9th Cir. 2001); see 20

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C.F.R. Part 404, Subpt. P, App. 1 § 11.00A; see also SSR. 87-6, 1987 WL 109184, at *2

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(“[T]he record of anticonvulsant blood levels is required before a claim can be

9

allowed.”). Thus, the absence of drug serum levels precluded a finding that Plaintiff met

10

Listing 11.02.

11

Plaintiff’s physician, based on his personal observation, of a typical seizure for Plaintiff,

12

or a description of Plaintiff’s seizures from “persons other than the claimant.” The lack

13

of such a description precluded a finding that Plaintiff met Listing 11.02. See 20 C.F.R.

14

pt. 404, subpt. P, app. 1 § 11.00(A).

Moreover, the record does not include a detailed description from

15

Additionally, the record supports the ALJ’s conclusion that Plaintiff’s epilepsy did

16

not meet Listing 11.02. State agency physician reviewing physician Dr. Anderson opined

17

that Plaintiff did not meet or medically equal a listing. (Tr. 297.) In support of his

18

opinion, Dr. Anderson noted the absence of the requisite third-party statements and drug

19

serum levels. (Id.) The ALJ gave Dr. Anderson’s opinion substantial weight because he

20

found it consistent with the record. (Tr. 24); see 20 C.F.R. §404.1527(e)(2)(i) (state

21

agency medical consultants are highly qualified physicians who are also experts in Social

22

Security disability evaluation); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002)

23

(reviewing source opinions constitute substantial evidence when they are consistent with

24

independent clinical findings or other record evidence).

25

evidence to support the ALJ’s conclusion that Plaintiff did not meet Listing 11.02 and

This opinion is substantial

26
27
28

7

Based on review of the record, it is unclear whether Plaintiff took all of his
seizure medication as prescribed. (Tr. 23; Compare Tr. 286 (prescribing Vimpat in
October 2009) with Tr. 354 (stating, in April 2011, that Plaintiff was not taking Vimpat
because his health insurance declined to cover it).)
- 13 -

1

Plaintiff does not assert that the ALJ erred in assigning substantial weight to that opinion.

2

(Doc. 40.)

3

In conclusion, the ALJ did not err in concluding that Plaintiff’s epilepsy did not

4

meet or equal Listing 11.02 and that determination is supported by substantial evidence in

5

the record.

6
7

3.

Plaintiff’s Combination of Impairments Do not Equal 11.02

Plaintiff implies that, even if his epilepsy did not meet Listing 11.02, his epilepsy

8

and depression combined to equal the listing. (Doc. 40 at 9, 11).

9

impairment does not meet the criteria specified in the listings, he is still disabled if the

10

impairment equals a listed impairment. 20 C.F.R. § 404.1520(d). If a claimant has more

11

than one impairment, the Commissioner must determine “whether the combination of

12

[the] impairments is medically equal to any listed impairment.” 20 C.F.R. § 404.1526(a).

13

The claimant’s symptoms “must be considered in combination and must not be

14

fragmentized in evaluating their effects.” Lester v. Chater, 81 F.3d 821, 829 (9th Cir.

15

1995) (citations omitted). A finding of equivalence must be based on medical evidence

16

only. 20 C.F.R. § 404.1529(d)(3).

If a claimant’s

17

The ALJ stated that Plaintiff’s impairments or combination of impairments did not

18

meet or equal a listed impairment. (Tr. 21.) Plaintiff does not offer any evidence that his

19

epilepsy and depression combined to equal a listed impairment. Additionally, “[n]othing

20

in the regulations . . . says a claimant may circumvent the compliance requirement of the

21

epilepsy listings by ‘equaling’ rather than ‘meeting’ the listing.” Lewis, 236 F.3d at 514.

22

Here, as set forth above, Plaintiff did not meet his burden to “present medical findings

23

equal in severity to all the criteria for” Listing 11.02.

24

Additionally, Dr. Aluri’s treatment notes indicate that Plaintiff’s depression was “in

25

remission with treatment.” (Tr. 24, 283, 328, 330, 343, 346, 349, 352, 355, 358, 361,

26

363, 366).

27

combination of impairments did not equal Listing 11.02. (Tr. 21.)

Zebley, 493 U.S. at 531.

Thus, substantial evidence supports the ALJ’s finding that Plaintiff’s

28

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1

Because Plaintiff did not meet his burden to establish that his impairment or

2

combination of impairments met or medically equaled Listing 11.02, the ALJ did not err

3

in concluding that Plaintiff was not presumptively disabled at step three.

4

B.

5

As previously stated, the ALJ found that Plaintiff had the RFC to perform a full

6

range of medium work, but he could never climb ladders and must avoid all exposure to

7

heights and moving machinery.

8

formulating an RFC that did not include sufficient seizure precautions. (Doc. 40 at 12.)

The ALJ did not err in Formulating the RFC

(Tr. 22.)

Plaintiff argues that the ALJ erred by

9

The RFC assessment considers functional limitations and restrictions that result

10

from a claimant’s medically determinable impairment or combination of impairments.

11

SSR 96-8p, 1996 WL 374184. “In determining a claimant’s RFC, an ALJ must consider

12

all relevant evidence in the record including, inter alia, medical records, lay evidence,

13

and ‘the effects of symptoms, including pain, that are reasonably attributed to a medically

14

determinable impairment.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir.

15

2006). The determination of a claimant’s RFC is wholly within the province of the ALJ.

16

See SSR 96–8p, 1996 WL 374184. In formulating a claimant’s RFC, an ALJ is not

17

required to include limitations that are not supported by substantial evidence. Osenbrock

18

v. Apfel, 240 F.3d 1157, 1164-65 (9th Cir. 2001). Here, the ALJ stated that her RFC

19

assessment was supported by “the objective medical evidence, the opinions of State

20

agency reviewing physicians and psychologists, and the claimant’s activities of daily

21

living.” (Tr. 24.)

22

Plaintiff argues that “a person having a tonic-clonic seizure should not be near

23

table corners that are unpadded,” open drawers, or “anything that they could hit their

24

head on including a hard floor.” (Doc. 40 at 12.) He argues that the ALJ erred by failing

25

to include seizure precautions in the RFC limiting Plaintiff to “being on the carpet at all

26

times, sitting down and avoiding sharp corners.” (Doc. 40 at 13-14.) Plaintiff, however,

27

does not suggest this error was predicated on a separate error such as improper rejection

28

of medical opinion testimony, or an improper rejection of Plaintiff’s own testimony.

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1

(Doc. 40.) Additionally, Plaintiff does not cite any evidence in the record supporting his

2

argument that the ALJ was required to include these limitations in the RFC.

3

example, Plaintiff does not cite any medical opinion evidence indicating that Plaintiff

4

must be “on the carpet at all times, sitting down, and avoiding sharp corners.” (Doc. 40

5

at 13-14.) Although Plaintiff testified that his work area was carpeted, as discussed

6

below, there was other evidence in the record indicating that Plaintiff was not always on

7

carpeted surfaces.

For

8

The ALJ’s RFC assessment is supported by the opinions of state agency reviewing

9

physicians Dr. Anderson and Dr. Goodrich that Plaintiff should not climb ladders, ropes,

10

or scaffolds, and should avoid machinery and heights. (Tr. 294-96, 70-71.) The ALJ

11

assigned the reviewing physicians’ opinions substantial weight (Tr. 24), and Plaintiff

12

does not argue that the ALJ erred in weighing medical opinion evidence. (Tr. 40.) The

13

RFC assessment is also supported by the opinion of state agency reviewing psychologist

14

Dr. Penner who opined that Plaintiff should avoid ladders and hazards. (Tr. 322-24.)

15

Additionally, when evaluating Plaintiff’s RFC, the ALJ found that, despite his

16

longstanding seizure disorder, Plaintiff worked for a number of years as an electrical

17

appliance repair person. (Tr. 23-24; see Tr. 219, 265.) The ALJ also noted that Plaintiff

18

prepared simple meals, did household chores and some yard work, read, worked on

19

puzzles, and grocery shopped.8 (Tr. 24; see Tr. 42-43, 212-14, 375.) Plaintiff’s daily

20

activities did not indicate that he required restrictions other than those included in the

21

ALJ’s RFC to perform work.

22

In summary, the ALJ reasonably found that Plaintiff must avoid all exposure to

23

heights and moving machinery (Tr. 22), and her opinion is supported by substantial

24

evidence in the record. Accordingly, the ALJ did not err in formulating the RFC.

25
26
27
28

8

The ALJ discounted Plaintiff’s credibility based, in part, on the activities of
daily living. (Tr. 24.) Plaintiff does not argue that the ALJ erred in assessing his
credibility. (Doc. 40.)

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1

C.

2

Plaintiff argues that the ALJ erred at step four by finding that an individual with

3

the limitations the ALJ identified — who must avoid heights and moving machinery —

4

could perform his past relevant work as an appliance repair person. (Doc. 40 at 13.)

The ALJ did not err at Step Four

5

Plaintiff bears the burden of proving that he cannot perform his past relevant work.

6

20 C.F.R. § 404.1512(a). At step four, the ALJ concluded that Plaintiff could perform his

7

past relevant work as an appliance repair person “as actually performed,” and that work

8

did not require the performance of work-related activities precluded by Plaintiff’s RFC.

9

(Tr. 25.) Plaintiff argues that the ALJ erred by concluding that he could perform his past

10

relevant work as an appliance repair person because that position was performed with

11

accommodations and the ALJ did not consider whether the position, as accommodated,

12

existed in significant numbers in the national economy. (Doc. 40 at 13.)

13

An ALJ may determine that a claimant retains the capacity to perform his past

14

relevant work in three circumstances: (1) if the claimant retains the capacity to perform a

15

past relevant job based on a broad, occupational classification of the job; (2) if the

16

claimant retains the capacity to perform the particular functional demands and job duties

17

specific to a previous job as he actually performed it; or (3) if the claimant retains the

18

capacity to perform the functional demands and duties of the job as ordinarily required by

19

employers throughout the national economy. SSR 82–61, 1982 WL 31387; see also

20

Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001) (stating that the Ninth Circuit has

21

“never required explicit findings at step four regarding a claimant’s past relevant work

22

both as generally performed and as actually performed.”).

23

disabled if he can perform past relevant work “either as actually performed or as

24

generally performed in the national economy.” Lewis v. Apfel, 281 F.3d 1081, 1083 (9th

25

Cir. 2002) (citing Pinto, 249 F.3d at 845). “In making his determination at step four, the

26

ALJ is therefore permitted to consider both plaintiff’s past relevant job title and the duties

27

plaintiff actually performed.” Stacy v. Colvin, 2013 WL 4859301, at *5 (D. Or. Sept. 11,

28

2013).

Thus, a claimant is not

“[T]he claimant is the primary source for vocational documentation, and

- 17 -

1

statements by the claimant regarding past work are generally sufficient for determining

2

skill level; exertional demands and nonexertional demands of such work.” SSR 82-62,

3

1982 WL 31386; see also Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993) (a

4

claimant’s description of past work is considered highly probative). Here, the ALJ

5

applied the second test and found Petitioner capable of performing his past relevant work

6

as actually performed. (Tr. 25.)

7

Plaintiff testified that he sat at a table and repaired vacuums and appliances.

8

(Tr. 56-57 (stating that his “only job was to repair them on a table”).) Plaintiff clarified

9

that he did not test the appliances or use them to clean the casino. (Tr. 56.) He also

10

stated that he assembled parts. (Tr. 57.) The vocational expert identified Plaintiff’s past

11

relevant work as an appliance repair person. (Tr. 54-55.) She testified that a vacuum

12

could be considered moving machinery, but stated that Plaintiff’s past relevant work at

13

the casino, as Plaintiff described it, did not involve moving machinery. (Tr. 55, 57.)

14

Based on the ALJ’s determination of Plaintiff’s RFC, Plaintiff’s testimony, and the

15

vocational expert’s testimony, the ALJ found that Plaintiff could perform his past

16

relevant past work as an appliance repair person as actually performed. (Tr. 25.)

17

Plaintiff does not challenge the description of his work as stated in the ALJ’s

18

decision and does not argue that his work at the casino does not constitute past relevant

19

work as defined in the Act. (Doc. 40); see 20 C.F.R. §§ 404.1565, 404.1573. Rather,

20

Plaintiff argues that the ALJ erred by concluding that he could perform his past relevant

21

work as an appliance repair person because that position was performed with

22

accommodations and the ALJ did not consider whether the position, as accommodated,

23

existed in significant numbers in that national economy. (Doc. 40 at 13.) Plaintiff

24

identifies the accommodations as “working at a table with carpet nearby.” (Doc. 40 at

25

12, 43 at 7, 8.) Plaintiff asserts that the “ALJ admitted during the administrative hearing

26

that the position at the casino was a ‘fairly accommodated job.’” (Doc. 40 at 13 (citing

27

Tr. 59).) However, the portion of the transcript that Plaintiff cites reflects that Plaintiff’s

28

counsel, not the ALJ, asked the vocational expert whether Plaintiff’s job at the casino was

- 18 -

1

“fairly accommodated.” (Tr. 59.) The vocational expert responded that she “[did] not

2

know how to answer that. Yes, he did say they made accommodations for him. That

3

seems reasonable. But, the assembly, an appliance repair person would sit in a room, at a

4

table repairing the machinery, so it doesn’t sound all that different.” (Tr. 59.)

5

Even if Plaintiff’s past relevant work was considered to be performed with

6

accommodations, courts have found that the ALJ did not err in concluding that a claimant

7

was not disabled because the claimant could perform past relevant work that was

8

accommodated. See Giordano v. Astrue, 304 Fed. App’x. 507, 509 (9th Cir. 2008) (“It

9

was . . . reasonable for the ALJ to conclude that [the claimant] could return to her past

10

relevant work, given that [the claimant’s] own description of her past jobs accommodated

11

all of the limitations.”); Sharkey v. Comm’r. Soc. Sec. Admin., 2008 WL 3289267, at *6

12

(D. Idaho Aug. 8, 2008) (ALJ did not err in considering the claimant’s previous work as a

13

book keeper, as it was performed with significant accommodation, as past relevant work

14

or in concluding that the claimant could perform her past relevant work as actually

15

performed). Thus, the ALJ did not err in concluding that Plaintiff could perform his past

16

relevant work as it was actually performed.9

17

In addition, the authority Plaintiff cites does not support his assertion that “to find

18

the claimant can do his past work with accommodations for his disability, the job must

19

exist in significant number.”

20

§ 416.960(b)(3); Beltran v. Astrue, 700 F.3d 386 (9th Cir. 2012)).)

(Doc. 40 at 13 and Doc. 43 at 8 (citing 20 C.F.R.

21

First, § 416.960(b)(3) states that “ [i]f we find you that you have the residual

22

functional capacity to do your past relevant work, we will determine that you can still do

23

your past work and are not disabled.” That section further states that “[w]e will not

24

consider your vocational factors of age, education, and work experience or whether your

25

past work exists in significant numbers in the national economy.” (emphasis added).

26
9

27
28

Plaintiff also states that the ALJ cannot draw vocational conclusions without
testimony or evidence from a vocational expert. (Doc. 40 at 13.) This argument is not
persuasive because the ALJ considered testimony from a vocational expert. (Tr. 54-59.)

- 19 -

1

Thus, § 416.960(b)(3) does not support Plaintiff’s argument that the ALJ erred by failing

2

to consider whether Plaintiff’s past relevant work as actually performed existed in

3

significant numbers in the national economy.10

4

Second, Beltran does not support Plaintiff’s assertion that the ALJ was required to

5

determine whether Plaintiff’s past relevant work existed in significant numbers in the

6

national economy. Unlike this case, the plaintiff in Beltran established that she could not

7

perform her past relevant work. Beltran, 700 F.3d at 388. Because the plaintiff could not

8

perform her past relevant work, the ALJ considered whether the plaintiff could perform

9

other work that existed in significant numbers in the national economy. Id. The Ninth

10

Circuit held that the ALJ erred in concluding that 135 surveillance jobs regionally, or

11

1,680 jobs nationally, constituted a significant number of jobs considering the plaintiff’s

12

vocational factors and functional limitations. Id. at 380-90. Beltran involved a step-five

13

determination and does not support Plaintiff’s argument that the ALJ erred at step four by

14

failing to consider whether Plaintiff’s past relevant work existed in significant numbers in

15

the national economy.

16

Finally, as the Commissioner argues (Doc. 42 at 18-19), the ALJ did not err in

17

concluding that Plaintiff could perform his past relevant work as an appliance repair

18

person, as actually performed, because the DOT indicates that the position of appliance

19

repair person does not include moving machinery or heights. See DOT 723.584-101

20

(appliance repairer), 1991 WL 679518. The description of appliance repairer in DOT

21

723.584-010, states that “High Exposed Places: Not Present — Activity or condition does

22

not exist.” Id. It also states that “Moving Mech[ical] Parts: Not Present — Activity or

23

condition does not exist.” Id. Thus, the ALJ did not err in finding that Plaintiff could

24
25
26
27

10

Because Plaintiff applied for a period of disability and disability insurance
benefits under Title II of the Act, the regulations in 20 C.F.R. part 404 apply. However,
part 404 and has parallel citations in part 416, which apply to applications under Title
XVI. Sections 416.960(b)(3) and 404.1560(b)(3) are the same. Accordingly, the Court’s
analysis is the same whether Plaintiff cited to § 416.960(b)(3) or § 404.1560(b)(3).

28

- 20 -

1

perform his past relevant work as an appliance repair person as that job was actually

2

performed.

3

Because the ALJ’s findings concerning Plaintiff’s past relevant work and his

4

capacity to perform such past relevant work represent a reasoned application of the law

5

supported by substantial evidence, the Court affirms the determination that Plaintiff was

6

not disabled because he could perform his past relevant work as it was actually

7

performed.

8

D.

9

Plaintiff argues that the ALJ erred in concluding that, assuming Plaintiff could not

10

perform his past relevant work, Plaintiff could perform other work as a janitor (DOT

11

381.687-018), laundry worker (DOT 361.684-014), or hand packager (DOT 920.587-

12

018), because these positions involve heights or machinery and thus are inconsistent with

13

the ALJ’s RFC determination that Plaintiff should avoid moving machinery and heights.

14

(Doc. 40 at 13, Tr. 22, 26.)

The ALJ did Not Make a Harmful Error at Step Five

15

To support his argument that his RFC precluded him from performing work as a

16

janitor, Plaintiff argues that the DOT definition of janitor refers to a vacuum cleaner and

17

the vocational expert testified that a vacuum cleaner could be considered moving

18

machinery. (Doc. 40 at 14 (citing Tr. 56).) As Plaintiff argues, the description of the

19

janitor position in DOT 381.687-018 specifically refers to a vacuum cleaner.

20

www.occupationalinfo.org/38/38167018.html.

21

vocational expert testified that a vacuum cleaner could be considered moving machinery.

22

Accordingly, the vocational expert’s testimony that Plaintiff could perform work as a

23

janitor contradicts her earlier testimony that a vacuum would be considered moving

24

machinery and that Plaintiff should avoid moving machinery. Accordingly, the Court

25

agrees that the ALJ erred in concluding that the Plaintiff could perform work as a janitor

26

because the vocational expert’s testimony did not constitute substantial evidence to

27

support that conclusion.

28

- 21 -

(last visited April 29, 2015).

The

1

The ALJ also concluded that Plaintiff could perform work as a laundry worker

2

(DOT 361.684-014). (Tr. 26.) Plaintiff speculates that the laundry worker position

3

involves “large washers and dryers, large lines of clothes, [and] heavy duty clothes and

4

linen pressers.” (Doc. 40 at 14.) Plaintiff asserts that “[i]f a belt on a vacuum is

5

dangerous, these cannot be safe.” (Id.) However, as the Commissioner asserts, the DOT

6

definitions of laundry worker states that moving mech[anical] parts [are] not present —

7

[a]ctivity or condition does not exist,” and that “high exposed places [are] not present —

8

[a]ctivity or condition does not exist.” See DOT 361.684-014 Laundry Worker, 1991 WL

9

672983; www.occupationalinfo.org/36/361684014.html (last visted April 29, 2015).11

10

Thus, the ALJ did not err in relying on the vocational expert’s testimony that Plaintiff

11

could perform work as a laundry worker. See Stubbs-Danielson v. Astrue, 539 F.3d

12

1169, 1175-76 (9th Cir. 2008) (the ALJ reasonably relied on vocational expert’s

13

testimony that was consistent with the DOT).

14

Finally, the ALJ found that Plaintiff could perform work as a hand packager (DOT

15

706.684-022). (Tr. 26.) Plaintiff argues that this finding is confusing because DOT

16

706.684-022 is entitled assembler, small products. (Doc. 40 at 14.) The vocational

17

expert testified that she was “hesitant to use the assembler, because other positions might

18

have moving machinery.” (Tr. 57.) The ALJ then asked the vocational expert whether

19

Plaintiff could perform work as a hand packager. (Id.) The vocational expert referred to

20

hand packager as DOT 706.684-022. However, as Plaintiff argues, that code defines the

21

position of an assembler.

22

visited April 29, 2015). Because the vocational expert referred to the hand packager

23

position by the wrong DOT code, and testified that she was “hesitant to use the

24

assembler” position, it is unclear whether the vocational expert considered the correct

25

description

of

the

See www.occupationalinfo.org/70/706684022.html. (last

hand

packager

position

(DOT

920.587-018,

26
11

27
28

DOT 361.684-014 states that a laundry worker “[w]ashes and irons wearing
apparel, sheets, blankets, and other linens and clothes used by employees of logging,
construction, mining, or other camp, or washes uniforms, aprons, and towels in
establishments supplying employees with these linens. Uses equipment usually found in
household or in small laundry.”
- 22 -

1

www.occupationalinfo.org/92/920587018.html (last visited April 29, 2015) to determine

2

whether Plaintiff could perform that work.

3

vocational expert’s testimony did not constitute substantial evidence to support the ALJ’s

4

conclusion that Plaintiff could perform work as a hand packager.

Accordingly, the Court finds that the

5

Although the ALJ erred in concluding that Plaintiff could perform work as a

6

janitor and a hand packager, that error was harmless because the ALJ also found that

7

Plaintiff could perform work as a laundry worker.

8

VII.

9
10

Conclusion
As set forth above, the ALJ’s determination is supported by substantial evidence

in the record and is free of harmful legal error.

11

Accordingly,

12

IT IS ORDERED that the Commissioner’s disability determination is

13

AFFIRMED.

14

Commissioner and against Plaintiff and to terminate this action.

15

The Clerk of Court is directed to enter judgment in favor of the

Dated this 29th day of April, 2015.

16
17
18
19
20
21
22
23
24
25
26
27
28

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