Bryan Estrada Siqueiros v. Michael J Astrue

Filing 22

MEMORANDUM AND ORDER by Magistrate Judge Arthur Nakazato. (twdb)

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CENTRAL DISTRICT OF CALIFORNIA
BY
DEPUTY

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

10 BRYAN ESTRADA SIQUEIROS,

Case No. EDCV 12-01790 AN

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MEMORANDUM AND ORDER

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Plaintiff,
v.

CAROLYNW. COLVnt~CTING
COMMISSIONER OF Tttl:', SOCIAL
14 SECURITY ADMINISTRATION,
SUBSTITUTED FOR
15 MICHAEL J. ASTRUE,
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Defendant.

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Pursuant to the Court's Case Management Order, the parties have filed the

19 Administrative Record ("AR") and a Joint Stipulation ("JS") raising two disputed issues.
20 The parties have consented to proceed before the Magistrate Judge. The Court has
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carefully reviewed the parties' respective contentions in conjunction with the AR. This

22 matter is now ready for decision.
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Issue #1

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Plaintiff contends that the Administrative Law Judge ("ALJ") erred in finding that

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he is capable of alternative work at step five of the sequential evaluation process, as his

26 residual functional capacity ("RFC") prevents him from performing the jobs that the
27 vocational expert ("VE") identified at the administrative hearing. (JS 5-13, 18-19.) The
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ALJ found, in part, that Plaintiff has the RFC for a limited range of light work, is able

1 to engage in frequent fine manipulation such as keyboarding and frequent gross
2 manipulation such as opening drawers and carrying files, but is precluded from forceful
3 gripping; grasping, or twisting, and is limited to simple, repetitive tasks. (AR 14.)
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When presented with a hypothetical question based on Plaintiff's RFC, the VE

5 identified two examples of jobs that could be performed, cashier (Dictionary of
6 Occupational Titles ("DOT") 211.462-01 0) and sewing machine operator (DOT 689.6857 118). (AR 16, 56-57.) The VE explained that the number of available cashier jobs was
8 eroded by 90 percent due to Plaintiff's limitations. (AR 16, 57.) As for the sewing
9 machine operator job, the VE testified that there was an erosion of 50 percent, due to the
10 possibility of continuous use of the hands. (AR 57.) The VE stated that her opinion was
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consistent with the DOT. (AR 58.) In a second hypothetical question, the ALJ asked the

12 VEto consider a person with an additional limitation of no more than occasional use of
13 the hands. (AR 58.) The VE responded that a person with those limitations could perform
14 the jobs of call out operator (DOT 237.367-014) and surveillance system monitor (DOT
15 379.367-01 0). (AR 16, 58.) Plaintiff contends thatthe demands of the four jobs identified
16 by the VE are beyond his occupational limitations.
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First, Plaintiff asserts that he is unable to perform the sewing machine operator job

18 due to his inability to forcefully grip, grasp or twist his hands. (JS 7-11.) As described
19 in the DOT, the sewing machine operator position involves clamping material and
20 padding in a mattress frame, placing the mattress frame in a rack under the head of a
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sewing machine, and bolting a pilot pattern plate on a platform beneath the mattress

22 frame, using a wrench. DOT 689.685-118. Plaintiff asserts that the activities of"moving,
23 wrenching, and clamping a mattress cover into a frame" conflict with his restriction
24 against "forceful gripping, grasping or twisting," and that the ALJ erred by failing to
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solicit sufficient explanation from the VE for the deviation from the DOT. (JS 8-9);

26 Massachi v. Astrue, 486 F.3d 1149, 1154 (9th Cir. 2007).
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Plaintiff's contention that the job of sewing machine operator requires forceful

28 gripping, grasping or twisting is speculative and does not invalidate the VE's statement
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1 that her testimony was consistent with the DOT. (AR 58.) Although the DOT provides
2 that the sewing machine operator job requires frequent handling, the DOT lists no
3 requirements for forceful gripping, grasping or twisting. DOT 689.685-118; see Social
4 Security Ruling ("SSR") 85-15, 1985 WL 56857, at *7 (defining handling as the ability
5 to "seiz[e], hold [],grasp[], turn[], or otherwise work[] primarily with the whole hand
6 or hands"). Further, the ALJ specifically asked the VEto address the impact ofPlaintiff s
7 limitations on the occupational base. (AR 57); see SSR 85-15, 1985 WL 56857, at *7
8 (explaining that because significant limitations in handling may eliminate a large number
9 of occupations a person can perform, testimony from aVE may be needed to determine
10 the effects of a claimant's limitations). The VE' s testimony established that, even with
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a 50 percent erosion due to Plaintiffs handling limitations, a significant number of

12 sewing machine operator jobs remained available (8,000 jobs in the region and 85,000
13 jobs in the national economy). (AR 57.) As Plaintiffhas not demonstrated that an actual
14 or apparent conflict exists between the VE' s testimony and the DOT, the ALJ did not err
15 in relying on the VE' s testimony to find that Plaintiff could work as a sewing machine
16 operator.
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Next, Plaintiff contends that the ALJ erred in finding that Plaintiff could perform

18 the alternate jobs of cashier (DOT 211.462-01 0), call out operator (DOT 23 7.367-014)
19 and surveillance system monitor (DOT 379.367-010) because, according to the DOT,
20 such jobs would require Plaintiff to function at reasoning Level3. (JS 11-13.) Plaintiff
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asserts that a reasoning Level 3 is inconsistent with his limitation to simple, repetitive

22 tasks. (JS 11-13.) The Commissioner disagrees. (JS 15-18.)
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Level3 reasoning is defined as the ability to: "Apply commonsense understanding

24 to carry out instructions furnished in written, oral, or diagrammatic form. Deal with
25 problems involving several concrete variables in or from standardized situations." See
26 DOT, Appendix C. The Ninth Circuit has yet to directly address the question of whether
27 a limitation to simple, repetitive, or routine tasks is inconsistent with Level 3 reasoning
28 skills. Cf Bordbar v. Astrue, 475 Fed. Appx. 214, 215 (9th Cir. Jul. 30, 2012) (holding
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1 that it was unnecessary to determine whether a limitation to "one to two-step simple
2 instruction kinds of jobs" conflicted with the VE's testimony that the claimant could
3 perform DOT jobs requiring Level2 or Level3 reasoning skills, as the medical evidence
4 and the claimant's statements established that the claimant was capable of performing
5 Level2 reasoning skills). However, numerous district courts have held that a limitation
6 to simple, repetitive, or routine tasks is incompatible with a reasoning Level of 3. See,
7 e.g.,Flores v. Astrue, CV 11-10714-MAN, 2013 WL 146190, at *6 (C.D. Cal. Jan. 11,
8 2013); Carneyv. Astrue, No. EDCV 09-1984 JEM, 2010 WL 5060488, at *4 (C.D. Cal.
9 Dec. 6, 2010); Franklin v. Astrue, No. CV 12-258 MRW, 2013 WL 425118, at *2 (C.D.
10 Cal. Jan. 31, 2013); Stevens v. Astrue, No. CV 10-8042 SP, 2011 WL 4055804, at *4
11 (C.D. Cal. Sept. 12, 2011); Clark v. Astrue, No. ED CV 09-9453 PJW, 2011 WL
12 1648584, at *3 (C.D. Cal. April29, 2011); Wrightv. Astrue, No. EDCV 10-400 SS, 2010
13 WL 4553441, at *4-5 (C.D. Cal. Nov. 3, 2010); McGensy v. Astrue, No. EDCV 09-152
14 AGR, 2010 WL 1875810, at *3 (C.D. Cal. May 11, 2010); Pakv. Astrue, No. EDCV 0815 714 OP, 2009 WL 2151361, at *7 (C.D. Cal. July 14, 2009). The Court concurs with the
16 reasoning and conclusion in these cases. On the present record, there is an apparent
17 conflict between the VE testimony and the DOT, with respect to Plaintiffs ability to
18 perform the jobs of cashier, call out operator, and surveillance system monitor, which
19 require Level3 reasoning skills. However, the sewing machine operator job requires only
20 Level 2 reasoning skills, which is consistent with Plaintiffs RFC for simple, repetitive
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work. DOT 689.685-118; see, e.g., McGensy v. Astrue, No. EDCV 09-152 AGR, 2010

22 WL 1875810, at *3 (C.D. Cal. May 11, 2010) (holding that "a limitation to 'simple,
23 repetitive tasks' is consistent with level two reasoning"); Vasquez v. As true, No. CV 0824 5305-0P, 2009 WL 3672519, at *3 (C.D. Cal. Oct. 30, 2009) (finding that "the DOT's
25 reasoning development Level two requirement does not conflict with the ALJ' s
26 prescribed limitation that Plaintiff could perform only simple, routine work"); Tudino
27 v. Barnhart, No. 06-CV-2487-BEN (JMA), 2008 WL 4161443, at *11 (S.D. Cal. Sept.
28 5, 2008) (surveying cases and noting that "[l]evel-two reasoning appears to be the
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1 breaking point for those individuals limited to performing only simple repetitive tasks");
2 Meiss! v. Barnhart, 403 F.Supp.2d 981, 984-85 (C.D. Cal. 2005) (finding Level two
3 reasoning consistent with an RFC for "simple, routine, repetitive, concrete, tangible
4 tasks"). Thus, the ALJ' s failure to inquire about any conflict between the VE' s testimony
5 and the DOT with respect to the cashier, call out operator, and surveillance system
6 monitor jobs was harmless error. See, e.g., Stout v. Comm 'r of Soc. Security, 454 F.3d
7 1050, 1055 (9th Cir. 2006) (an ALJ's error is harmless where such error is
8 inconsequential to the ultimate non-disability determination); Curry v. Sullivan, 925 F .2d
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1127, 1131 (9th Cir. 1991) (harmless error rule applies to review of administrative

10 decisions regarding disability).
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Accordingly, reversal is not warranted based on the claims raised in Issue # 1.
Issue #2
Plaintiff alleges disability due to respiratory problems, shortness ofbreath, obesity,

14 sleep apnea, fatigue, carpal tunnel syndrome, heart problems, back pain, neuropathy and
15 pain in his legs and feet, constant pain in his hands, difficulty sitting, standing, walking,
16 and grasping, depression, and problems with concentration. (AR 43-55, 144.) Plaintiff
17 claims that he experiences excruciating pain when he uses his hands and is unable to
18 perform many tasks, due to his pain and fatigue. (AR 144.) Plaintiff contends that the
19 ALJ improperly rejected his subjective symptom testimony based solely on a lack of
20 objective evidence. (JS 19-28, 31; AR 14-15.) The Commissioner disagrees.
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As an initial matter, the Court notes that Plaintiff misrepresents the evidence

22 concerning his weight. Plaintiff asserts that he is incapable of maintaining substantial
23 gainful work activity as a result of his severe impairments, including "morbid obesity
24 with a weight of over 400 pounds." (JS 20 (citing AR 21-64, 171-73).) At his hearing,
25 however, Plaintiff testified that he is five feet, nine inches tall and weighs 198 pounds.
26 (AR 54.) Plaintiff stated that his weight fluctuates somewhat, as his normal weight is 210
27 pounds. (AR 54.) While Plaintiff's body mass index may be in the obese range, there is
28 no indication in the medical records that Plaintiff ever weighed 400 pounds or was
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1 considered morbidly obese. (AR 286, 303,310, 319,329, 330,331, 338, 339, 343, 346,
2 347,360,362,365,369,370,380,381,386,387,392,393,399,400,407,412,436,437,
3 440, 442, 443, 448, 451, 460, 461, 466, 481, 482, 485, 702, 711, 714, 717.) Thus,
4 Plaintiffs argument that he is disabled based on morbid obesity is rejected.
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In discounting Plaintiffs credibility, the ALJ properly found that Plaintiff failed

6 to seek treatment for his alleged psychiatric impairment. (ARat 13, 15). Plaintiff claims
7 that he has been suffering from depression and problems with concentration since he was
8 injured in 1998. (AR 49, 144.) However, there is no medical evidence documenting a
9 psychiatric impairment or psychiatric treatment prior to Plaintiffs date last insured of
10 December 31,2003. (AR 13, 15, 672.) Rather, the record shows thatPlaintifffirstsought
11 mental health treatment in December 2009, more than six years after Plaintiffs insured
12 status expired. (AR 661-84.) Plaintiffs failure to seek treatment was a relevant factor in
13 assessing credibility. See Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996); Fair v.
14 Bowen, 885 F.2d 597, 603 (9th Cir.1989) (failure to assert good reason for not seeking
15 treatment can cast doubt on sincerity of a claimant's subjective symptom testimony);
16 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008).
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Further, the ALJ discounted Plaintiffs credibility because the record revealed no

18 significant objective medical findings to substantiate Plaintiffs allegations of complete
19 disability before his date last insured. (AR 14-15.) While a lack of objective evidence
20 supporting Plaintiffs symptoms cannot be the sole reason for rejecting allegations of
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pain, it can be one of several factors used in evaluating the credibility of subjective

22 complaints. See Rollins v. Massanari, 261 F.3d 853, 856-57 (9th Cir. 2001); Thomas v.
23 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (lack of objective medical evidence
24 supporting descriptions of pain and limitations negatively affected the claimant's
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credibility regarding the inability to work); Batson v. Comm 'r, 359 F.3d 1190, 1195 (9th

26 Cir. 2004). Here, the ALJ gave great weight to the opinion of the medical expert, Samuel
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1 Landau, M.D., in evaluating Plaintiffs impairments and limitations.!! (AR 14-15, 30-4 2.)
2 Dr. Landau stated that his opinion was consistent with Plaintiffs workers' compensation
3 agreed medical examiner's finding that Plaintiff was precluded from very heavy lifting
4 and heavy pushing, pulling, grasping, and gripping. (AR 34, 37, 640.) Dr. Landau also
5 reported that diagnostic studies showed that Plaintiffs carpal tunnel syndrome and right
6 ulnar neuropathy were "mild." (AR 33, 526.) Dr. Landau's testimony supports the ALJ' s
7 conclusion that the objective medical evidence was inconsistent with Plaintiffs
8 statements concerning the limiting effects of his impairments.
In sum, the ALJ offered clear and convincing reasons to discount Plaintiffs

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10 testimony regarding the extent of his pain and limitations, noting not only a lack of
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objective medical evidence to corroborate the extent of Plaintiffs asserted pain and

12 limitations, but also Plaintiffs failure to seek treatment for his alleged mental
13 impairment, prior to his date last insured. Accordingly, reversal or remand is not
14 warranted on the basis oflssue #2.
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ORDER

The Court finds that the ALJ' s determination of non-disability is free oflegal error

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18 and supported by substantial evidence in the record. Therefore, Plaintiffs request for an
19 order directing the payment of benefits or remanding this case for further proceedings
20 is DENIED, and the Commissioner's request for an order affirming the Commissioner's
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Dr. Landau reviewed Plaintiffs medical records and opined that Plaintiff could
lift and carry 20 pounds occasionally and 10 pounds frequently, stand and/or walk 6
26 hours in an 8-hour workday, sit 6 liours in an 8-hour workday with normal breaks,
occasionally stoop and bend, climb stairs, and engage in frequent fine manipulation, but
27 Plaintiff could not climb ladders, work at he1gl1:ts, balance, or engage in forceful
gripping~ grasping or twisting, and must have an mr conditioned work environment that
28 1s free or excessive inhaled pollutants. (AR 15, 31-32.)
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final decision and dismissing the action is GRANTED. The clerk shall enter judgment,

2 close the file and terminate all pending motions.

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5 DATED: December 19,2013

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