Yolanda Ruiz De Rivera v. Carolyn W. Colvin

Filing 19

MEMORANDUM OPINION AND ORDER by Magistrate Judge Douglas F. McCormick (twdb)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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YOLANDA RUIZ DE RIVERA,
Plaintiff,

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v.

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CAROLYN COLVIN, Acting
Commissioner of Social Security,

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Defendant.

) Case No. CV 13-07397-DFM
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) MEMORANDUM OPINION AND
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) ORDER
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Plaintiff Yolanda Ruiz De Rivera appeals the Commissioner’s final

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decision denying her applications for disability insurance and supplemental

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security income benefits. On appeal, the Court concludes that the

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Administrative Law Judge (“ALJ”) was required to call upon a vocational

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expert (“VE”) because Plaintiff suffered from nonexertional limitations not

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contemplated by the Medical-Vocational Guidelines. The Commissioner’s

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decision is therefore reversed and the matter is remanded for further

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proceedings consistent with this opinion.

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I.

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FACTUAL AND PROCEDURAL BACKGROUND

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Plaintiff filed her applications alleging disability beginning December 16,

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2006. The ALJ determined that Plaintiff suffered from various severe

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impairments involving her left wrist and shoulder, but that she retained the

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residual functional capacity (“RFC”) to perform light work with a limitation to

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“occasional reaching, handling, fingering, feeling, and pushing/pulling with

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the upper left extremity, and never reaching overhead with the upper left

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extremity.” Administrative Record (“AR”) 18-19. Relying on the Medical-

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Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2 (“the grids”), the

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ALJ found that there were jobs that exist in significant numbers in the national

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economy that Plaintiff could perform. AR 22. The ALJ concluded that

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Plaintiff was therefore not disabled within the meaning of the Social Security

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Act. Id.

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II.

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ISSUE PRESENTED

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The parties dispute whether the ALJ erred when he relied upon the grids

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to find Plaintiff not disabled despite Plaintiff’s nonexertional limitations in

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reaching, handling, and fingering. See Joint Stipulation (“JS”) at 4.

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III.

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DISCUSSION

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Once a claimant has demonstrated the existence of a severe impairment

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that precludes her from doing past work, the burden shifts to the

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Commissioner to demonstrate that there are a significant number of jobs in the

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national economy that the claimant can perform despite her impairment.

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Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988). The Commissioner

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may satisfy this burden in one of two ways: (1) by the testimony of a VE, or (2)

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by reference to the grids. Id.
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The grids provide a system “for disposing of cases that involve

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substantially uniform levels of impairment.” Desrosiers v. Sec’y of Health &

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Human Servs., 846 F.2d 573, 578 (9th Cir. 1988) (Pregerson, J., concurring).

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The grids categorize jobs by three physical-exertional requirements:

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“[m]aximum sustained work capacity limited to sedentary work,”

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“[m]aximum sustained work capacity limited to light work,” and “[m]aximum

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sustained work capacity limited to medium work.” Tackett v. Apfel, 180 F.3d

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1094, 1101 (9th Cir. 1999). These exertional levels are further divided by a

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claimant’s age, education, and work experience. Id. The grids direct a finding

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of “disabled” or “not disabled” depending on a claimant’s particular

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combination of factors. Id.

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There are “strict limits on when the Secretary may rely on the

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Guidelines.” Desrosiers, 846 F.2d at 578 (Pregerson, J., concurring). An ALJ

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may only substitute the grids for VE testimony when they “completely and

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accurately represent a claimant’s limitations.” Tackett, 180 F.3d at 1101; see

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also Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). This means

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that “a claimant must be able to perform the full range of jobs in a given

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[exertional] category” for the grids to apply. Tackett, 180 F.2d at 1101; see also

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Burkhart, 856 F.2d at 1340. Because “the grids are predicated on a claimant

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suffering from an impairment which manifests itself by limitations in meeting

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the strength requirements of jobs[,] they may not be fully applicable” for a

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claimant’s non-exertional limitations. Lounsberry v. Barnhart, 468 F.3d 1111,

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1115 (9th Cir. 2006). The mere allegation of a nonexertional limitation,

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however, does not preclude the use of the grids. For the grids to be inadequate,

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the nonexertional limitation must be “sufficiently severe so as to significantly

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limit the range of work permitted by the claimant’s exertional limitations.”

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Hoopai v. Astrue, 499 F.3d 1071, 1075 (9th Cir. 2007) (citing Burkhart, 856

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F.2d at 1340)(quotation marks omitted); see also Desrosiers, 846 F.2d at 577.
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When “a claimant’s nonexertional limitations are in themselves enough to

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limit his range of work, the grids do not apply, and the testimony of a

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vocational expert is required to identify specific jobs within the claimant’s

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abilities.” Polny v. Bowen, 864 F.2d 661, 663-64 (9th Cir. 1988).

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In the present case, the ALJ concluded that Plaintiff retained the RFC to

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perform a full range of light work with the limitation to “occasional reaching,

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handling, fingering, feeling, and pushing/pulling with the upper left extremity,

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and never reaching overhead with the upper left extremity.” AR 18-19.

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Difficulty in reaching and handling are considered nonexertional limitations.

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20 C.F.R. § 416.969a(c). Instead of taking VE testimony, the ALJ merely

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stated that “the additional limitations have little or no effect on the

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occupational base of unskilled light work.” AR 22. However, contrary to the

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ALJ’s assertion, reaching and handling are “required in almost all jobs” at all

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exertional levels, and “significant limitations of reaching or handling,

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therefore, may eliminate a large number of occupations a person could

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otherwise do.” Social Security Ruling (“SSR”) 85-15, 1985 WL 56857, at *7. 1

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Moreover, “[v]arying degrees of limitations [in reaching] would have different

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effects, and the assistance of a [vocational specialist] may be needed to

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determine the effects of the limitations.” Id.

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It therefore appears that the grids do not “completely and accurately”

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describe Plaintiff’s nonexertional limitations on reaching and handling.

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Because Plaintiff’s nonexertional limitations appear to limit the range of work

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she could perform, the ALJ was required to take the testimony of a vocational

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SSRs are “final opinions and orders and statements of policy and
interpretations” that have been adopted by the Social Security Administration.
20 C.F.R. § 402.35(b)(1). Once published, these rules are binding precedent
upon ALJs. Heckler v. Edwards, 465 U.S. 870, 873 n.3 (1984).

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expert. See, e.g., Tackett, 180 F.3d at 1103-04 (determining that vocational

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expert testimony was necessary because claimant’s need to shift, stand up, or

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walk around every thirty minutes is significant nonexertional limitation not

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contemplated by the grids); Burkhart, 856 F.2d at 1341 & n.4 (finding grids

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inapplicable because they did not account for the claimant’s need to avoid

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stressful environments, his inability to regularly use his hands in fine

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manipulation, or his vision problems).

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The ALJ did not specifically identify any jobs that Plaintiff was capable

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of performing given her nonexertional limitation. This was insufficient to meet

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the Commissioner’s burden at step five. The ALJ should have had a VE testify

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as to whether there were jobs in the national economy that Plaintiff could

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perform despite her specific nonexertional limitations. Accordingly, the Court

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will remand this matter to the Social Security Administration for

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reconsideration of Plaintiff’s disability status. To establish whether Plaintiff is

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disabled, the ALJ must hear testimony from a vocational expert.

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IV.

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CONCLUSION

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For the reasons stated above, the decision of the Social Security

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Commissioner is REVERSED and REMANDED for further proceedings

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consistent with this opinion.

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Dated: May 7, 2014
______________________________
DOUGLAS F. McCORMICK
United States Magistrate Judge

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