Steven Lindeman v. Carolyn W. Colvin

Filing 21

MEMORANDUM DECISION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. Consistent with the foregoing and under sentence four of 42 U.S.C. § 405(g),8 IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner, DENYING Plaintiff's request for remand, and DISMISSING this action with prejudice. (See Order for details) (bem)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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STEVEN LINDEMANN,
Plaintiff,

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v.

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NANCY A. BERRYHILL, Acting
Commissioner of Social
Security,

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Defendant.

) Case No. CV 16-7597-JPR
)
)
) MEMORANDUM DECISION AND ORDER
) AFFIRMING COMMISSIONER
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I.

PROCEEDINGS
Plaintiff seeks review of the Commissioner’s final decision

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denying his applications for Social Security disability insurance

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benefits (“DIB”) and supplemental security income benefits

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(“SSI”).

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undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c).

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matter is before the Court on the parties’ Joint Stipulation,

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filed May 30, 2017, which the Court has taken under submission

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without oral argument.

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Commissioner’s decision is affirmed.

The parties consented to the jurisdiction of the

For the reasons stated below, the

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The

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II.

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BACKGROUND
Plaintiff was born in 1966.

(Administrative Record (“AR”)

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56.)

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jail (id.), and worked as a care provider and pipe cutter (AR 66-

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67, 290-92).

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He completed 10th grade (AR 45, 352), received his GED in

On April 1, 2015, Plaintiff filed an application for DIB (AR

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69), and on April 18 he filed one for SSI (AR 83).

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applications, Plaintiff alleged that he had been unable to work

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since March 25, 2015, because of skin cancer, bipolar disorder,

In both

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anxiety, and a torn rotator cuff in his right shoulder.1

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74.)

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on reconsideration (AR 84-113), he requested a hearing before an

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Administrative Law Judge (AR 128).

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13, 2016, at which Plaintiff, who was represented by counsel,

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testified, as did a vocational expert.

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decision issued June 27, 2016, the ALJ found Plaintiff not

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disabled.

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Appeals Council, and on August 17, 2016, it denied review.

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1-3.)

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III. STANDARD OF REVIEW

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(AR 60,

After his applications were denied initially (AR 56-83) and

(AR 7-20.)

A hearing was held on June

(AR 42-55.)

In a written

Plaintiff requested review from the
(AR

This action followed.

Under 42 U.S.C. § 405(g), a district court may review the

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Commissioner’s decision to deny benefits.

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decision should be upheld if they are free of legal error and

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supported by substantial evidence based on the record as a whole.

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See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra

The ALJ’s findings and

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Although they were not listed in his initial applications,
Plaintiff also complained of neck pain and depression. (AR 4446, 63, 85.) Those complaints were considered on initial review
and reconsideration. (AR 63, 85, 92, 107.)
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v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).

Substantial

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evidence means such evidence as a reasonable person might accept

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as adequate to support a conclusion.

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401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007).

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It is more than a scintilla but less than a preponderance.

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Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec.

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Admin., 466 F.3d 880, 882 (9th Cir. 2006)).

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substantial evidence supports a finding, the reviewing court

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“must review the administrative record as a whole, weighing both

Richardson, 402 U.S. at

To determine whether

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the evidence that supports and the evidence that detracts from

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the Commissioner’s conclusion.”

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720 (9th Cir. 1996).

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either affirming or reversing,” the reviewing court “may not

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substitute its judgment” for the Commissioner’s.

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IV.

Reddick v. Chater, 157 F.3d 715,

“If the evidence can reasonably support

Id. at 720-21.

THE EVALUATION OF DISABILITY

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People are “disabled” for purposes of receiving Social

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Security benefits if they are unable to engage in any substantial

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gainful activity owing to a physical or mental impairment that is

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expected to result in death or has lasted, or is expected to

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last, for a continuous period of at least 12 months.

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§ 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir.

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1992).

42 U.S.C.

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A.

The Five-Step Evaluation Process

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The ALJ follows a five-step sequential evaluation process to

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assess whether a claimant is disabled.

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§§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821,

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828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996).

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step, the Commissioner must determine whether the claimant is
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20 C.F.R.

In the first

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currently engaged in substantial gainful activity; if so, the

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claimant is not disabled and the claim must be denied.

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§§ 404.1520(a)(4)(i), 416.920(a)(4)(i).

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If the claimant is not engaged in substantial gainful

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activity, the second step requires the Commissioner to determine

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whether the claimant has a “severe” impairment or combination of

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impairments significantly limiting his ability to do basic work

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activities; if not, the claimant is not disabled and his claim

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must be denied.

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§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).

If the claimant has a “severe” impairment or combination of

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impairments, the third step requires the Commissioner to

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determine whether the impairment or combination of impairments

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meets or equals an impairment in the Listing of Impairments set

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forth at 20 C.F.R. part 404, subpart P, appendix 1; if so,

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disability is conclusively presumed.

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416.920(a)(4)(iii).

§§ 404.1520(a)(4)(iii),

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If the claimant’s impairment or combination of impairments

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does not meet or equal an impairment in the Listing, the fourth

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step requires the Commissioner to determine whether the claimant

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has sufficient residual functional capacity (“RFC”)2 to perform

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his past work; if so, he is not disabled and the claim must be

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denied.

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has the burden of proving he is unable to perform past relevant

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work.

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burden, a prima facie case of disability is established.

§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).

Drouin, 966 F.2d at 1257.

The claimant

If the claimant meets that
Id.

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RFC is what a claimant can do despite existing exertional
and nonexertional limitations. §§ 404.1545, 416.945; see Cooper
v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989).
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If that happens or if the claimant has no past relevant

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work, the Commissioner then bears the burden of establishing that

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the claimant is not disabled because he can perform other

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substantial gainful work available in the national economy.

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§§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Drouin, 966 F.2d at 1257.

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That determination comprises the fifth and final step in the

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sequential analysis.

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Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257.

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B.

§§ 404.1520(a)(4)(v), 416.920(a)(4)(v);

The ALJ’s Application of the Five-Step Process

At step one, the ALJ found that Plaintiff had not engaged in

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substantial gainful activity since March 25, 2015, the alleged

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onset date.

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had severe impairments of “tendinosis of bilateral shoulders” and

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“degenerative disc disease of the cervical spine.”

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step three, he determined that Plaintiff’s impairments did not

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meet or equal a listing.

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(AR 12.)

At step two, he concluded that Plaintiff

(Id.)

At

(AR 15.)

At step four, the ALJ found that Plaintiff had the RFC to
perform light work3 with the following limitations:

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[H]e can occasionally crawl; he can frequently climb

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ramps and stairs, balance, stoop, kneel, and crouch; he

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can occasionally reach and handle with the bilateral

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upper extremities; he can frequently feel and finger; he

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“Light work involves lifting no more than 20 pounds at a
time with frequent lifting or carrying of objects weighing up to
10 pounds.” §§ 404.1567(b), 416.967(b). “Even though the weight
lifted may be very little, a job is in this category when it
requires a good deal of walking or standing, or when it involves
sitting most of the time with some pushing and pulling of arm or
leg controls.” Id. If someone can do light work, then “she can
also do sedentary work, unless there are additional limiting
factors such as loss of fine dexterity or inability to sit for
long periods of time.” Id.
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must not work at top rungs of ladders; he must not keep

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his head and neck in a fixed position for extended

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periods, such as working with a computer; and he must not

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look up and down or side to side repetitively, such as

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judging a tennis match.

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(Id.)

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The ALJ concluded that Plaintiff had no past relevant work.

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(AR 19.)

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that given Plaintiff’s age, education, work experience, and RFC,

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he could “perform the requirements of representative occupations

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such as surveillance monitor, DOT 379.367-010,4 a sedentary,

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unskilled (SVP 2) occupation with 826,000 such positions in the

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national economy.”

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not disabled.

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V.

At step five, he relied on the VE’s testimony to find

(AR 19-20.)

Accordingly, he found Plaintiff

(AR 20.)

PLAINTIFF HAS WAIVED THE SOLE ISSUE HE RAISES ON APPEAL,5

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AND NO MANIFEST INJUSTICE WILL RESULT IF THE COURT DOES NOT

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CONSIDER IT

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Plaintiff contends that the ALJ erred in failing to resolve

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an apparent conflict between the VE’s testimony and the

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Dictionary of Occupational Titles (“DOT”).

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He argues that the VE’s testimony that a person with his RFC

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could perform the job of surveillance-system monitor is

(J. Stip. at 3-5.)

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The actual job title listed as DOT 379.367-010 is
“surveillance-system monitor.” 1991 WL 673244.
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Plaintiff has actually “forfeited” the issue rather than
“waived” it. See United States v. Scott, 705 F.3d 410, 415 (9th
Cir. 2012) (“Waiver is ‘the intentional relinquishment or
abandonment of a known right,’ whereas forfeiture is ‘the failure
to make the timely assertion of [that] right.’” (citation
omitted)). But because most of the analogous cases refer to a
“waiver rule,” the Court will too.
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inconsistent with the DOT because the “chief work duty” of a

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surveillance-system monitor, as defined by DOT 379.367-010, 1991

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WL 673244, involves “prolonged looking at screens,” and his RFC

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states that “he must not keep his head and neck in a fixed

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position for extended periods [of time], such as working with a

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computer.”

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describes the duties of the surveillance-system-monitor position

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as follows:

(J. Stip. at 4-5 (citation omitted).)

The DOT

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Monitors premises of public transportation terminals to

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detect crimes or disturbances, using closed circuit

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television

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telephone

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television screens that transmit in sequence views of

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transportation facility sites.

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maintain surveillance of location where incident is

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developing, and telephones police or other designated

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agency to notify authorities of location of disruptive

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activity.

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improve

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equipment malfunctions.

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monitors,
of

need

and

for

notifies

corrective

authorities
action:

by

Observes

Pushes hold button to

Adjusts monitor controls when required to

reception,

and

notifies

repair

service

of

DOT 379.367-010, 1991 WL 673244.
Plaintiff did not raise this issue at the hearing or even
(See generally AR 42-54.)

After the VE testified,

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hint at it.

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the ALJ gave Plaintiff’s counsel the opportunity to question her,

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and he declined.

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this issue on appeal.

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review of ALJ’s decision only that he “disagree[d] with the

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decision”).)

(AR 54.)

Nor did counsel specifically raise

(See AR 5 (cited reason in request for

He also has not even addressed Defendant’s waiver
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argument (see J. Stip. at 6) in his reply (see id. at 8).

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Accordingly, Plaintiff has waived the right to raise this issue

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in federal court unless manifest injustice would result.

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Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (as amended)

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(reviewing court need not address issues not raised before ALJ or

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Appeals Council unless manifest injustice would result); see also

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Phillips v. Colvin, 593 F. App’x 683, 684 (9th Cir. 2015) (“This

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issue was waived by [claimant]’s failure to raise it at the

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administrative level when he was represented by counsel, and

See

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[claimant] has not demonstrated manifest injustice excusing the

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failure.”); Solorzano v. Astrue, No. ED CV 11-369-PJW, 2012 WL

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84527, at *6 (C.D. Cal. Jan. 10, 2012) (“Counsel are not supposed

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to be potted plants at administrative hearings.

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obligation to take an active role and to raise issues that may

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impact the ALJ’s decision while the hearing is proceeding so that

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they can be addressed.”).6

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They have an

No manifest injustice would result here because Plaintiff’s

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RFC is not directly or obviously inconsistent with the

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surveillance-system-monitor job description in the DOT.

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Sanchez v. Berryhill, No. 1:15-cv-00510-EPG, 2017 WL 1709326, at

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*3 (E.D. Cal. May 3, 2017) (“A ‘manifest injustice’ is defined as

See

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Meanel was decided in 1999. In 2000, the Supreme Court
held that a plaintiff does not forfeit a claim simply by failing
to raise it before the Appeals Council. Sims v. Apfel, 530 U.S.
103, 108 (2000) (holding that claims need not be raised before
Appeals Council to be exhausted). But Sims expressly declined to
decide whether a claim would be forfeited if the claimant also
neglected to raise it before the ALJ. See id. at 107 (“Whether a
claimant must exhaust issues before the ALJ is not before us.”).
Thus, Sims did not overrule Meanel, which this Court remains
bound by.
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‘an error in the trial court that is direct, obvious, and

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observable[.]’” (citation omitted)); see, e.g., Simpson v.

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Colvin, No. SACV 15-01122-DTB, 2016 WL 3091487, at *1-2 (C.D.

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Cal. May 31, 2016) (finding no manifest injustice in waiver when

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represented plaintiff failed to raise issue of conflict between

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RFC and DOT at ALJ hearing and in request for review from Appeals

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Council), appeal docketed, No. 16-55964 (9th Cir. July 6, 2016);

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Goodman v. Colvin, No. CV-15-00807-PHX-JAT, 2016 WL 4190738, at

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*17-18 (D. Ariz. Aug. 9, 2016) (no manifest injustice in waiver

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when plaintiff failed to question VE about possible conflicts

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between RFC limitations and DOT); cf. Jones v. Colvin, No.: 2:15-

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cv-09489 KS, 2016 WL 4059624, at *3 & n.2 (C.D. Cal. July 27,

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2016) (finding manifest injustice when ALJ failed to reconcile

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RFC with DOT job description because Ninth Circuit had directly

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held that “‘there is an apparent conflict between the [RFC] to

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perform simple, repetitive tasks and the demands of Level Three

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Reasoning’” (citation omitted)).

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Because it is not obvious that “using closed circuit

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television monitors” and “observ[ing] television screens” would

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require an individual to “keep his head and neck in a fixed

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position for extended periods,” no manifest injustice will result

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from finding waiver.

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several duties unrelated to observing and using screens, such as

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“monitor[ing] premises of public transportation terminals to

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detect crimes or disturbances” and “notif[ying] authorities by

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telephone of need for corrective action.”

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1991 WL 673244.

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surveillance-system monitors typically look at “multiple”

Indeed, the DOT description includes

See DOT 379.367-010,

Moreover, as the Commissioner points out,

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screens; they do not necessarily hold their head or neck in a

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fixed position for an extended period of time.7

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7.)

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watch television for up to two hours at a time (AR 52),

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indicating that he can perform the duties of the surveillance-

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system-monitor job.

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this otherwise waived issue would not amount to manifest

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injustice because no direct, obvious, or observable conflict

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between Plaintiff’s RFC and the DOT exists, and the Ninth Circuit

(See J. Stip. at

Finally, Plaintiff himself testified that he was able to

As such, unlike in Jones, failure to address

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has certainly not indicated otherwise.

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4059624, at *3 n.2.

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See Jones, 2016 WL

Accordingly, Plaintiff has waived the only issue he raises

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on appeal.

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VI.

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CONCLUSION
Consistent with the foregoing and under sentence four of 42

U.S.C. § 405(g),8 IT IS ORDERED that judgment be entered

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Similarly, no obvious or apparent conflict exists between
the DOT’s description of looking at multiple screens and
Plaintiff’s restriction on “repetitive looking up or down, or
right to left.” (AR 54.) Moving the head out of a fixed
position at one screen to look at others does not equate to the
constant side-to-side and up-and-down movement that would be
required of someone “judging a tennis match,” as the ALJ
described Plaintiff’s limitation. (AR 15.) Indeed, Plaintiff
does not even argue the point. (See generally J. Stip. at 3-5.)
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That sentence provides: “The [district] court shall have
power to enter, upon the pleadings and transcript of the record,
a judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing.”
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AFFIRMING the decision of the Commissioner, DENYING Plaintiff’s

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request for remand, and DISMISSING this action with prejudice.

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DATED: July 12,2017

______________________________
JEAN ROSENBLUTH,
U.S. Magistrate Judge

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