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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 STEVEN LINDEMANN, Plaintiff, 12 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 Defendant. ) Case No. CV 16-7597-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) AFFIRMING COMMISSIONER ) ) ) ) ) ) ) 17 18 19 I. PROCEEDINGS Plaintiff seeks review of the Commissioner’s final decision 20 denying his applications for Social Security disability insurance 21 benefits (“DIB”) and supplemental security income benefits 22 (“SSI”). 23 undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). 24 matter is before the Court on the parties’ Joint Stipulation, 25 filed May 30, 2017, which the Court has taken under submission 26 without oral argument. 27 Commissioner’s decision is affirmed. The parties consented to the jurisdiction of the For the reasons stated below, the 28 1 The 1 II. 2 BACKGROUND Plaintiff was born in 1966. (Administrative Record (“AR”) 3 56.) 4 jail (id.), and worked as a care provider and pipe cutter (AR 66- 5 67, 290-92). 6 He completed 10th grade (AR 45, 352), received his GED in On April 1, 2015, Plaintiff filed an application for DIB (AR 7 69), and on April 18 he filed one for SSI (AR 83). 8 applications, Plaintiff alleged that he had been unable to work 9 since March 25, 2015, because of skin cancer, bipolar disorder, In both 10 anxiety, and a torn rotator cuff in his right shoulder.1 11 74.) 12 on reconsideration (AR 84-113), he requested a hearing before an 13 Administrative Law Judge (AR 128). 14 13, 2016, at which Plaintiff, who was represented by counsel, 15 testified, as did a vocational expert. 16 decision issued June 27, 2016, the ALJ found Plaintiff not 17 disabled. 18 Appeals Council, and on August 17, 2016, it denied review. 19 1-3.) 20 III. STANDARD OF REVIEW 21 (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 22 Commissioner’s decision to deny benefits. 23 decision should be upheld if they are free of legal error and 24 supported by substantial evidence based on the record as a whole. 25 See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra The ALJ’s findings and 26 27 28 1 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.) 2 1 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial 2 evidence means such evidence as a reasonable person might accept 3 as adequate to support a conclusion. 4 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 5 It is more than a scintilla but less than a preponderance. 6 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 7 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 8 substantial evidence supports a finding, the reviewing court 9 “must review the administrative record as a whole, weighing both Richardson, 402 U.S. at To determine whether 10 the evidence that supports and the evidence that detracts from 11 the Commissioner’s conclusion.” 12 720 (9th Cir. 1996). 13 either affirming or reversing,” the reviewing court “may not 14 substitute its judgment” for the Commissioner’s. 15 IV. Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support Id. at 720-21. THE EVALUATION OF DISABILITY 16 People are “disabled” for purposes of receiving Social 17 Security benefits if they are unable to engage in any substantial 18 gainful activity owing to a physical or mental impairment that is 19 expected to result in death or has lasted, or is expected to 20 last, for a continuous period of at least 12 months. 21 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 22 1992). 42 U.S.C. 23 A. The Five-Step Evaluation Process 24 The ALJ follows a five-step sequential evaluation process to 25 assess whether a claimant is disabled. 26 §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 27 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). 28 step, the Commissioner must determine whether the claimant is 3 20 C.F.R. In the first 1 currently engaged in substantial gainful activity; if so, the 2 claimant is not disabled and the claim must be denied. 3 §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). 4 If the claimant is not engaged in substantial gainful 5 activity, the second step requires the Commissioner to determine 6 whether the claimant has a “severe” impairment or combination of 7 impairments significantly limiting his ability to do basic work 8 activities; if not, the claimant is not disabled and his claim 9 must be denied. 10 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a “severe” impairment or combination of 11 impairments, the third step requires the Commissioner to 12 determine whether the impairment or combination of impairments 13 meets or equals an impairment in the Listing of Impairments set 14 forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, 15 disability is conclusively presumed. 16 416.920(a)(4)(iii). §§ 404.1520(a)(4)(iii), 17 If the claimant’s impairment or combination of impairments 18 does not meet or equal an impairment in the Listing, the fourth 19 step requires the Commissioner to determine whether the claimant 20 has sufficient residual functional capacity (“RFC”)2 to perform 21 his past work; if so, he is not disabled and the claim must be 22 denied. 23 has the burden of proving he is unable to perform past relevant 24 work. 25 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. 26 27 28 2 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). 4 1 If that happens or if the claimant has no past relevant 2 work, the Commissioner then bears the burden of establishing that 3 the claimant is not disabled because he can perform other 4 substantial gainful work available in the national economy. 5 §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Drouin, 966 F.2d at 1257. 6 That determination comprises the fifth and final step in the 7 sequential analysis. 8 Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. 9 10 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 11 substantial gainful activity since March 25, 2015, the alleged 12 onset date. 13 had severe impairments of “tendinosis of bilateral shoulders” and 14 “degenerative disc disease of the cervical spine.” 15 step three, he determined that Plaintiff’s impairments did not 16 meet or equal a listing. 17 18 (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: 19 [H]e can occasionally crawl; he can frequently climb 20 ramps and stairs, balance, stoop, kneel, and crouch; he 21 can occasionally reach and handle with the bilateral 22 upper extremities; he can frequently feel and finger; he 23 3 24 25 26 27 28 “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. 5 1 must not work at top rungs of ladders; he must not keep 2 his head and neck in a fixed position for extended 3 periods, such as working with a computer; and he must not 4 look up and down or side to side repetitively, such as 5 judging a tennis match. 6 (Id.) 7 The ALJ concluded that Plaintiff had no past relevant work. 8 (AR 19.) 9 that given Plaintiff’s age, education, work experience, and RFC, 10 he could “perform the requirements of representative occupations 11 such as surveillance monitor, DOT 379.367-010,4 a sedentary, 12 unskilled (SVP 2) occupation with 826,000 such positions in the 13 national economy.” 14 not disabled. 15 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 16 AND NO MANIFEST INJUSTICE WILL RESULT IF THE COURT DOES NOT 17 CONSIDER IT 18 Plaintiff contends that the ALJ erred in failing to resolve 19 an apparent conflict between the VE’s testimony and the 20 Dictionary of Occupational Titles (“DOT”). 21 He argues that the VE’s testimony that a person with his RFC 22 could perform the job of surveillance-system monitor is (J. Stip. at 3-5.) 23 4 24 25 26 27 28 The actual job title listed as DOT 379.367-010 is “surveillance-system monitor.” 1991 WL 673244. 5 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. 6 1 inconsistent with the DOT because the “chief work duty” of a 2 surveillance-system monitor, as defined by DOT 379.367-010, 1991 3 WL 673244, involves “prolonged looking at screens,” and his RFC 4 states that “he must not keep his head and neck in a fixed 5 position for extended periods [of time], such as working with a 6 computer.” 7 describes the duties of the surveillance-system-monitor position 8 as follows: (J. Stip. at 4-5 (citation omitted).) The DOT 9 Monitors premises of public transportation terminals to 10 detect crimes or disturbances, using closed circuit 11 television 12 telephone 13 television screens that transmit in sequence views of 14 transportation facility sites. 15 maintain surveillance of location where incident is 16 developing, and telephones police or other designated 17 agency to notify authorities of location of disruptive 18 activity. 19 improve 20 equipment malfunctions. 21 22 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, 23 hint at it. 24 the ALJ gave Plaintiff’s counsel the opportunity to question her, 25 and he declined. 26 this issue on appeal. 27 review of ALJ’s decision only that he “disagree[d] with the 28 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 7 1 argument (see J. Stip. at 6) in his reply (see id. at 8). 2 Accordingly, Plaintiff has waived the right to raise this issue 3 in federal court unless manifest injustice would result. 4 Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (as amended) 5 (reviewing court need not address issues not raised before ALJ or 6 Appeals Council unless manifest injustice would result); see also 7 Phillips v. Colvin, 593 F. App’x 683, 684 (9th Cir. 2015) (“This 8 issue was waived by [claimant]’s failure to raise it at the 9 administrative level when he was represented by counsel, and See 10 [claimant] has not demonstrated manifest injustice excusing the 11 failure.”); Solorzano v. Astrue, No. ED CV 11-369-PJW, 2012 WL 12 84527, at *6 (C.D. Cal. Jan. 10, 2012) (“Counsel are not supposed 13 to be potted plants at administrative hearings. 14 obligation to take an active role and to raise issues that may 15 impact the ALJ’s decision while the hearing is proceeding so that 16 they can be addressed.”).6 17 They have an No manifest injustice would result here because Plaintiff’s 18 RFC is not directly or obviously inconsistent with the 19 surveillance-system-monitor job description in the DOT. 20 Sanchez v. Berryhill, No. 1:15-cv-00510-EPG, 2017 WL 1709326, at 21 *3 (E.D. Cal. May 3, 2017) (“A ‘manifest injustice’ is defined as See 22 23 24 25 26 27 28 6 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. 8 1 ‘an error in the trial court that is direct, obvious, and 2 observable[.]’” (citation omitted)); see, e.g., Simpson v. 3 Colvin, No. SACV 15-01122-DTB, 2016 WL 3091487, at *1-2 (C.D. 4 Cal. May 31, 2016) (finding no manifest injustice in waiver when 5 represented plaintiff failed to raise issue of conflict between 6 RFC and DOT at ALJ hearing and in request for review from Appeals 7 Council), appeal docketed, No. 16-55964 (9th Cir. July 6, 2016); 8 Goodman v. Colvin, No. CV-15-00807-PHX-JAT, 2016 WL 4190738, at 9 *17-18 (D. Ariz. Aug. 9, 2016) (no manifest injustice in waiver 10 when plaintiff failed to question VE about possible conflicts 11 between RFC limitations and DOT); cf. Jones v. Colvin, No.: 2:15- 12 cv-09489 KS, 2016 WL 4059624, at *3 & n.2 (C.D. Cal. July 27, 13 2016) (finding manifest injustice when ALJ failed to reconcile 14 RFC with DOT job description because Ninth Circuit had directly 15 held that “‘there is an apparent conflict between the [RFC] to 16 perform simple, repetitive tasks and the demands of Level Three 17 Reasoning’” (citation omitted)). 18 Because it is not obvious that “using closed circuit 19 television monitors” and “observ[ing] television screens” would 20 require an individual to “keep his head and neck in a fixed 21 position for extended periods,” no manifest injustice will result 22 from finding waiver. 23 several duties unrelated to observing and using screens, such as 24 “monitor[ing] premises of public transportation terminals to 25 detect crimes or disturbances” and “notif[ying] authorities by 26 telephone of need for corrective action.” 27 1991 WL 673244. 28 surveillance-system monitors typically look at “multiple” Indeed, the DOT description includes See DOT 379.367-010, Moreover, as the Commissioner points out, 9 1 screens; they do not necessarily hold their head or neck in a 2 fixed position for an extended period of time.7 3 7.) 4 watch television for up to two hours at a time (AR 52), 5 indicating that he can perform the duties of the surveillance- 6 system-monitor job. 7 this otherwise waived issue would not amount to manifest 8 injustice because no direct, obvious, or observable conflict 9 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 10 has certainly not indicated otherwise. 11 4059624, at *3 n.2. 12 See Jones, 2016 WL Accordingly, Plaintiff has waived the only issue he raises 13 on appeal. 14 VI. 15 16 CONCLUSION Consistent with the foregoing and under sentence four of 42 U.S.C. § 405(g),8 IT IS ORDERED that judgment be entered 17 18 19 20 7 21 22 23 24 25 26 27 28 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.) 8 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.” 10 1 AFFIRMING the decision of the Commissioner, DENYING Plaintiff’s 2 request for remand, and DISMISSING this action with prejudice. 3 4 5 6 DATED: July 12,2017 ______________________________ JEAN ROSENBLUTH, U.S. Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

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