Terri Lynn Ferguson v. Carolyn W. Colvin

Filing 28

MEMORANDUM OPINION AND ORDER by Magistrate Judge John D. Early. The Court has taken the Motion and Cross-Motion under submission without oral argument and as such, this matter now is ready for decision. 20 , 27 . See Order for more information. (twdb)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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EASTERN DIVISION

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TERRI LYNN FERGUSON,

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Plaintiff,

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v.
NANCY A. BERRYHILL,1 Acting
Commissioner of Social Security,

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Defendant.

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) Case No.: EDCV 16-02186-JDE
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) MEMORANDUM OPINION AND
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) ORDER
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Plaintiff Terri Lynn Ferguson (“Plaintiff”) filed a Complaint on October

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15, 2016, seeking review of the Commissioner’s denial of her applications for

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disability insurance benefits (“DIB”) and supplemental security income

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(“SSI”). On February 28, 2017 and May 12, 2017, the parties consented to

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proceed before the undersigned Magistrate Judge. In accordance with the

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Court’s Case Management Order, Plaintiff filed a Motion for Summary

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Judgment (“Motion”) on March 1, 2017, and Defendant filed a Cross-Motion

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Nancy A. Berryhill, now the Acting Commissioner of Social Security (“Defendant”
or “Commissioner”), is substituted in as defendant. See 42 U.S.C. § 405(g).

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for Summary Judgment and Opposition to Plaintiff’s Motion for Summary

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Judgment (“Cross-Motion”) on May 22, 2017. The Court has taken the

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Motion and Cross-Motion under submission without oral argument and as

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such, this matter now is ready for decision.

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I.

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BACKGROUND

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On July 12, 2013, Plaintiff applied for DIB and SSI, alleging disability

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beginning August 14, 2012. (Administrative Record [“AR”] 161-70.) After her

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application was denied initially (AR 102-06), and on reconsideration (AR 110-

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16), Plaintiff requested an administrative hearing, which was held on March

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25, 2015. (AR 35-61, 117.) Plaintiff, represented by counsel, appeared and

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testified at the hearing before an Administrative Law Judge (“ALJ”). (AR 35-

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61.) David Rinehart, a vocational expert (“VE”), also testified.

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On May 13, 2015, the ALJ issued a written decision finding Plaintiff was

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not disabled. (AR 23-31.) The ALJ found that Plaintiff had not engaged in

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substantial gainful activity since August 14, 2012. (AR 25.) The ALJ

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determined that Plaintiff suffered from the following severe impairments:

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lumbar spondylosis and degenerative disc disease; lumbosacral radiculitis;

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degenerative bone disease; and cervical spondylosis. (Id.) The ALJ found that

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

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or medically equaled a listed impairment. (AR 27.) The ALJ also found that

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Plaintiff had the residual functional capacity (“RFC”) to perform light work,

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with the following limitations. Plaintiff could: (1) lift and carry 20 pounds

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occasionally and 10 pounds frequently; (2) stand and walk for six hours out of

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an eight-hour workday; (3) sit for six hours out of an eight-hour workday; (4)

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occasionally climb stairs and ramps, balance, stoop, kneel, crouch, and crawl,

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but never climb ladders, ropes, or scaffolds; and (5) not be exposed to

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concentrated vibrations and hazardous work environments, such as dangerous
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machinery or unprotected heights. (Id.) The ALJ further found that Plaintiff’s

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RFC did not preclude her from performing her past relevant work as an

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assistant manager, storage facility, as actually and generally performed, and as

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a cleaner, commercial/institutional, as actually performed. (AR 29-30.)

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Accordingly, the ALJ concluded that Plaintiff was not under a “disability,” as

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defined in the Social Security Act. (AR 30.)

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Plaintiff filed a request with the Appeals Council for review of the ALJ’s

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decision. (AR 17-19.) On August 19, 2016, the Appeals Council denied

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Plaintiff’s request for review, making the ALJ’s decision the Commissioner’s

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final decision. (AR 1-4.) This action followed.

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II.

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STANDARD OF REVIEW

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

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Commissioner’s decision to deny benefits. The ALJ’s findings and decision

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should be upheld if they are free from legal error and supported by substantial

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evidence based on the record as a whole. Brown-Hunter v. Colvin, 806 F.3d

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487, 492 (9th Cir. 2015) (as amended); Parra v. Astrue, 481 F.3d 742, 746 (9th

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Cir. 2007). Substantial evidence means such relevant evidence as a reasonable

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person might accept as adequate to support a conclusion. Lingenfelter v.

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Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla, but less

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than a preponderance. Id. To determine whether substantial evidence supports

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a finding, the reviewing court “must review the administrative record as a

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whole, weighing both the evidence that supports and the evidence that detracts

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from the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 720

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(9th Cir. 1998). “If the evidence can reasonably support either affirming or

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reversing,” the reviewing court “may not substitute its judgment” for that of

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the Commissioner. Id. at 720-21; see also Molina v. Astrue, 674 F.3d 1104,

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1111 (9th Cir. 2012) (“Even when the evidence is susceptible to more than one
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rational interpretation, [the court] must uphold the ALJ’s findings if they are

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supported by inferences reasonably drawn from the record.”). However, a

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court may review only the reasons stated by the ALJ in his decision “and may

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not affirm the ALJ on a ground upon which he did not rely.” Orn v. Astrue,

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495 F.3d 625, 630 (9th Cir. 2007).
Lastly, even when the ALJ commits legal error, the Court upholds the

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decision where that error is harmless. Molina, 674 F.3d at 1115. An error is

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harmless if it is “inconsequential to the ultimate nondisability determination,”

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or if “the agency’s path may reasonably be discerned, even if the agency

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explains its decision with less than ideal clarity.” Brown-Hunter, 806 F.3d at

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492 (citation omitted).

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III.

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DISCUSSION

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Plaintiff contends that the ALJ: (1) failed to articulate specific and

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legitimate reasons for rejecting Plaintiff’s credibility and (2) erred in concluding

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that Plaintiff could perform her past relevant work. As set forth below, the

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Court affirms the Commissioner’s decision.

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A.

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The ALJ properly assessed Plaintiff’s credibility.
Where a disability claimant produces objective medical evidence of an

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underlying impairment that could reasonably be expected to produce the pain

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or other symptoms alleged, and there is no evidence of malingering, the ALJ

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must provide “‘specific, clear and convincing reasons for’ rejecting the

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claimant’s testimony regarding the severity of the claimant’s symptoms.”

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Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014)

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(citation omitted); Lingenfelter, 504 F.3d at 1036; Moisa v. Barnhart, 367 F.3d

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882, 885 (9th Cir. 2004); see also 20 C.F.R. §§ 404.1529(a), 416.929(a). “In

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reaching a credibility determination, an ALJ may weigh inconsistencies

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between the claimant’s testimony and his or her conduct, daily activities, and
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work record, among other factors.” Bray v. Comm’r of Soc. Sec. Admin., 554

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F.3d 1219, 1227 (9th Cir. 2009). The ALJ’s credibility findings “must be

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sufficiently specific to allow a reviewing court to conclude that the [ALJ]

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rejected [the] claimant’s testimony on permissible grounds and did not

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arbitrarily discredit the claimant’s testimony.” Moisa, 367 F.3d at 885 (citation

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omitted). However, if the ALJ’s assessment of the claimant’s testimony is

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reasonable and is supported by substantial evidence, it is not the court’s role to

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“second-guess” it. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).

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During the administrative hearing, Plaintiff testified that she worked as a

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storage facility manager until approximately August 2012, when she was let go

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because she could no longer do the work. (AR 40-41.) She explained that she

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could no longer work because she had severe pain throughout her whole body

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and was taking “a lot of medication.” (AR 41.) She stated that she took

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medication for her symptoms, “but none of them seem[] to work,” although

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she indicated that the Ambien helped. (AR 42, 45, 47.) She also used

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massagers, TENS, or transcutaneous electrical nerve stimulation, units, a back

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brace, heating pads, and a cane. (AR 40, 42, 44-45.) She reported that she

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drives once a month; tries to keep up with house cleaning, but it is difficult;

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does not do any grocery shopping; uses the microwave for cooking; and does

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her own laundry. (AR 39.) She also indicated that it takes her three hours to

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shower and get dressed because of the pain. (AR 56.) Plaintiff indicated that

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she could sit or stand for 10-15 minutes before it would become painful and

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she would need to adjust. (AR 40.) She also explained that sitting and driving

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are difficult because her legs went numb. (AR 50, 54.) She explained that she

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could walk as far as her residence to the car and had difficulty grasping things.

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(AR 40, 46.) She explained that her activity level had gone down over the

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years because of the pain and use of a cane. (AR 49.) According to Plaintiff,

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she spends 75% of her day lying down. (AR 56; see also AR 221 (indicating
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that the pain is sometimes so bad that she stays in bed for weeks at a time).).
The ALJ found that Plaintiff had severe impairments consisting of

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lumbar spondylosis and degenerative disc disease; lumbosacral radiculitis;

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degenerative bone disease; and cervical spondylosis, but that Plaintiff’s

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“statements concerning the intensity, persistence, and limiting effects of [her]

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symptoms [were] not fully credible.” (AR 28.) The ALJ provided legally

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sufficient reasons for rejecting Plaintiff’s credibility.

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First, the ALJ discounted Plaintiff’s complaints regarding the severity of

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her symptoms and limitations as inconsistent with a conservative treatment

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plan. (AR 28.) The ALJ found that Plaintiff received routine, conservative

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treatment that generally consisted of pain medication. (Id.) She repeatedly

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reported to her physician that the medication relieved her pain. (Id.) The ALJ

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also noted that Plaintiff reported that her pain was relieved with use of a back

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brace, heat, ice, and lying down. (AR 29.) The ALJ reasoned that the absence

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of more aggressive treatment suggested that Plaintiff’s symptoms and

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limitations were not as severe as she alleged. (Id.)

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Substantial evidence in the record supports the ALJ’s conclusion that

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Plaintiff received conservative, effective treatment. “[E]vidence of

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‘conservative treatment’ is sufficient to discount a claimant’s testimony

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regarding severity of an impairment.” Parra, 481 F.3d at 750-51; see also

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Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (favorable response

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to conservative treatment, including medication, may undermine a claimant’s

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assertions of disabling pain); Nguyen v. Astrue, 2011 WL 1226124, at *7 (N.D.

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Cal. Mar. 31, 2011) (“Evidence of conservative treatment, alone, is sufficient

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to discount credibility.”). Here, Plaintiff’s claims of debilitating, constant pain

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are contradicted by her repeated reports to her treating physicians that the pain

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was relieved by medication and other conservative treatments. (See, e.g., AR

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237 (treatment note dated 3/11/13, indicating that “[t]he pain is relieved by
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medications, rest” and “[t]he pain medications are helping”), 240 (treatment

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note dated 2/13/13, indicating that “[t]he pain is relieved by medications,

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rest” and “[t]he pain medications are helping”), 246 (treatment note dated

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12/20/12, indicating that “[t]he pain is relieved by heat, medications” and

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“[t]he pain medications are helping”), 249 (treatment note dated 11/26/12,

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indicating that “[t]he pain is relieved by medications, heat” and “[t]he pain

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medications are helping”), 284 (treatment note dated 12/18/14, indicating that

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“[t]he pain is relieved by medications, heat” and “[t]he pain medications are

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helping”), 287 (treatment note dated 11/20/14, indicating that “[t]he pain is

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relieved by medications, heat, TENS unit, massage, ice” and “[t]he pain

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medications are helping”), 290 (treatment note dated 10/22/14, indicating that

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“[t]he pain is relieved by medications” and “[t]he pain medications are

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helping”), 293 (treatment note dated 9/24/14, indicating that “[t]he pain is

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relieved by medications, position change” and “[t]he pain medications are

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helping”), 296 (treatment note dated 8/26/14, indicating that “[t]he pain is

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relieved by medications, heat, massage, body brace” and “[t]he pain

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medications are helping”).) See also, e.g., Medel v. Colvin, 2014 WL 6065898,

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at *8 (C.D. Cal. Nov. 13, 2014) (affirming ALJ’s characterization of the

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plaintiff’s treatment as conservative where his medical records showed that he

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had been “prescribed only Vicodin and Tylenol for his allegedly debilitating

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low-back pain.” (internal footnote omitted)). She reported on a single occasion

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that the medication was not helping enough. In response, the treating

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physician increased the dosage, and at the next appointment, Plaintiff again

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reported that the pain was relieved by the medication. (AR 299-304.)

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“Impairments that can be controlled effectively with medication are not

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disabling for the purpose of determining eligibility for [Social Security]

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benefits.” See Warre v. Comm’r of the Soc. Sec. Admin., 439 F.3d 1001, 1006

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(9th Cir. 2006). This is particularly true where, as here, Plaintiff’s treating
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physician recommended a more aggressive treatment, i.e., an epidural steroid

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injection, and she rejected it. (See, e.g., AR 233, 236, 238.) See Nguyen v.

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Colvin, 2013 WL 6536732, at *4 (C.D. Cal. Dec. 12, 2013) (concluding that

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the ALJ’s decision to discount claims of disabling pain because conservative

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treatment was inconsistent with those claims was supported by the record,

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particularly where her doctor had recommended a more aggressive treatment

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and plaintiff rejected it); Valdez v. Comm’r of Soc. Sec., 2011 WL 489694, at

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*5 (E.D. Cal. Feb. 7, 2011) (finding that the ALJ’s credibility determination

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was supported by the record as a whole where the ALJ considered the fact that

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the plaintiff’s pain was controlled with Methadone and the plaintiff declined

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more aggressive treatment, such as epidural steroid injections).

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Plaintiff maintains that taking a narcotic medication is not a form of

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conservative treatment, citing to Tunstell v. Astrue, 2012 WL 3765139 (C.D.

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Cal. Aug. 30, 2012) and Nevins v. Astrue, 2011 WL 6103057 (C.D. Cal. Dec.

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8, 2011). (Motion at 9.) However, both cases are distinguishable. In Tunstell,

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the medical records reflected that the plaintiff was a candidate for

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neurosurgical intervention because her pain medication did not provide her

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relief. 2012 WL 3765139, at *4. Similarly, in Nevins, the plaintiff actually

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underwent surgery for his shoulder. 2011 WL 6103057, at *5. Here, although

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Plaintiff reported at the hearing that her physician had discussed surgery (AR

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48), there are no references to surgery in her medical records, and as explained,

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she repeatedly reported that her pain medication was helping to relieve her

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pain. Similarly, Plaintiff’s use of a TENS unit does not reflect aggressive

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treatment. See Tommasetti, 533 F.3d at 1040 (ALJ properly discredited

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plaintiff’s credibility because conservative treatment, including physical

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therapy, use of anti-inflammatory medication, a TENS unit, and a lumbosacral

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corset were effective); Morris v. Colvin, 2014 WL 2547599, at *4 (C.D. Cal.

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June 3, 2014) (ALJ properly discounted credibility in part because claimant
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received conservative treatment, including use of TENS unit and Vicodin).
Plaintiff also refers to the additional treatment note dated April 24, 2015

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submitted to the Appeals Council. (Motion at 9.) Again, however, nothing in

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this treatment note reflects a recommendation for more aggressive treatment.

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(AR 322-24.) Indeed, this treatment note reflects no abnormalities of the spine

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or extremities and normal range of motion of the lower back. (Id.) Plaintiff’s

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conservative treatment was a clear and convincing reason to discount the

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credibility of her statements.

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Next, the ALJ rejected Plaintiff’s credibility because the objective and

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clinical medical evidence did not support her allegations of disabling

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limitations to the extent alleged. (AR 28.) Although a lack of objective medical

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evidence cannot be the sole reason for rejecting a claimant’s testimony, it can

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be one of several factors used in evaluating the credibility of Plaintiff’s

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subjective complaints. Rollins, 261 F.3d at 856-57. The ALJ noted that an

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MRI performed in November 2012 revealed findings that included disc

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protrusion at L3-4; a right paracentral disc protrusion at L5-S1; neuroforminal

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stenosis; and hypertrophy at L3-4, L4-5, and L5-S1. (AR 28; see also AR 250.)

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Plaintiff’s June 2013 physical examination revealed limited positive findings

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that included tenderness in the lumbar paraspinal muscles and pain with

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flexion and extension of the spine. (AR 28.) The ALJ noted, however, that

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Plaintiff exhibited good range of motion in her bilateral lower extremities, had

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a negative straight-leg raising test bilaterally, and motor strength of five out of

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five. (Id.) As the ALJ indicated, subsequent treatment notes reflected similar

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findings. (Id.; see, e.g., AR 272, 275, 312.) This evidence was substantial and

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reasonably supported the ALJ’s conclusion that Plaintiff’s symptoms and

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limitations were inconsistent with the objective medical evidence. Accordingly,

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the ALJ properly relied on a lack of objective evidence to discount Plaintiff’s

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credibility.
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Finally, the ALJ found that “[s]ome of [Plaintiff’s] reported activities

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since the alleged onset date are inconsistent with her alleged disabling

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functional limitations.” (AR 28.) The ALJ summarized certain activities

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identified by Plaintiff in her testimony and during her psychiatric evaluation,

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“which included performing personal care, running errands, performing

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minimal household chores, preparing meals, watching television, and using the

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computer.” The ALJ determined that these activities involved similar

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exertional levels and skills required of some jobs, suggesting that Plaintiff was

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capable of some work. (Id.)

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The Ninth Circuit has “repeatedly warned that ALJs must be especially

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cautious in concluding that daily activities are inconsistent with testimony

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about pain, because impairments that would unquestionably preclude work

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and all the pressures of a workplace environment will often be consistent with

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doing more than merely resting in bed all day.” Garrison v. Colvin, 759 F.3d

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995, 1016 (9th Cir. 2014); Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir.

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2001) (“This court has repeatedly asserted that the mere fact that a plaintiff has

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carried on certain daily activities, such as grocery shopping, driving a car, or

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limited walking for exercise, does not in any way detract from her credibility as

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to her overall disability.”). “[O]nly if [her] level of activity [was] inconsistent

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with [a claimant’s] claimed limitations would these activities have any bearing

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on [her] credibility.” Garrison, 759 F.3d at 1016. Here, the ALJ erred in

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relying on Plaintiff’s reported daily activities because those activities were not

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inconsistent with her subjective complaints and did not suggest that she was

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capable of meeting the demands of work on a sustained basis. See Garrison,

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759 F.3d at 1015-1016; Vertigan, 260 F.3d at 1049-50.

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Plaintiff also contends that the ALJ’s credibility determination was

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flawed because he gave “short shrift” to her good work history. Plaintiff

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essentially argues that someone with such a good work history would not stop
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working for any reason other than actual disability, thereby bolstering the

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credibility of her subjective allegations. (Motion at 12 (citing to Schaal v.

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Apfel, 134 F.3d 496, 502 (2d Cir. 1998).) While a claimant’s work history may

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be deemed probative of credibility, work history is only one factor that the ALJ

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may consider. See Bray, 554 F.3d at 1227; see also Avila v. Astrue, 2011 WL

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4457121, at *9 (E.D. Cal. Sept. 23, 2011) (rejecting claim that an ALJ failed to

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consider positive work history where the ALJ’s credibility finding were

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“sufficiently specific to allow a reviewing court to conclude the ALJ rejected

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the claimant’s testimony on permissible grounds and did not arbitrarily

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discredit the claimant’s testimony” (citation omitted)); Miller v. Astrue, 2008

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WL 4502111, at *9 (E.D. Cal. Oct. 7, 2008) (“although evidence supporting an

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ALJ’s conclusions might also permit an interpretation more favorable to the

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claimant, if the ALJ’s interpretation of evidence was rational, this Court must

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uphold the ALJ’s decision where the evidence is susceptible to more than one

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rational interpretation”). As another district court considering a similar issue

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explained, Schaal indicates that a “good work history may be deemed

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probative of credibility,” but it “does not require an ALJ to credit testimony

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from a plaintiff with a ‘good’ work history.” Smith v. Colvin, 2013 WL

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1156497, at *7 (E.D. Cal. Mar. 19, 2013) (citing Schaal, 134 F.3d at 502).

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“Although the ALJ must consider a broad spectrum of evidence, including

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prior work record, an ALJ is not required to include a discussion of a

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claimant’s work history in his or her determination.” Gill v. Astrue, 2011 WL

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6826728, at *5 (S.D. Cal. Dec. 28, 2011); see also Lamberson v. Astrue, 2012

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WL 4494813, at *5 (C.D. Cal. Sept. 28, 2012) (“Even if Plaintiff’s work history

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is commendable, Plaintiff has not cited any case law that requires an ALJ to

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elevate work history to a dispositive factor, or to discuss it in his ruling if it is

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not necessary to do so.”). Plaintiff has not shown that the ALJ’s failure to

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engage in a more elaborate discussion of her work history was error. See
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Curry-Collins v. Berryhill, 2017 WL 2312351, at *6 (C.D. Cal. May 25, 2017)

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(even if the ALJ erred in failing to consider work history in credibility

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determination, the error was harmless because the ALJ articulated other

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specific, clear, and convincing reasons sufficient to support the finding).
Where, as here, an ALJ provides legally sufficient reasons supporting his

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credibility determination, the ALJ’s reliance on erroneous reasons is harmless

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“[s]o long as there remains substantial evidence supporting the ALJ’s

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conclusions on . . . credibility and the error does not negate the validity of the

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ALJ’s ultimate [credibility] conclusion . . . .” Carmickle v. Comm’r, Soc. Sec.

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Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (internal quotation marks

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omitted). Since the ALJ articulated two other legally sufficient reasons

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supporting his adverse credibility finding, his reliance on Plaintiff’s daily

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activities was harmless. See Nava v. Colvin, 2017 WL 706099, at *5 (C.D. Cal.

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Feb. 21, 2017) (since history of conservative treatment and lack of

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corroborating medical evidence were legally sufficient reasons supporting the

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ALJ’s credibility finding, reliance on plaintiff’s daily activities was harmless).
Accordingly, reversal is not warranted based on the ALJ’s credibility

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determination.

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B.

The ALJ did not err in concluding that Plaintiff could perform her

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past relevant work.

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Plaintiff asserts that the ALJ improperly concluded that Plaintiff’s past

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relevant work included work as a cleaner and that she could perform this past

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relevant work. (Motion at 13-16.)

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“To determine whether a claimant has the residual capacity to perform

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[her] past relevant work, the [ALJ] must ascertain the demands of the

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claimant’s former work and then compare the demands with [her] present

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capacity.” Villa v. Heckler, 797 F.2d 794, 797-98 (9th Cir. 1986). The claimant

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has the burden to prove that she cannot perform her prior relevant work
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“either as actually performed or as generally performed in the national

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economy.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1166 (9th

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Cir. 2008) (citation omitted). Plaintiff must demonstrate an inability to return

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to her former type of work and not just her former job. Villa, 797 F.2d at 798;

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see also 20 C.F.R. §§ 404.1520(f), 416.920(f).

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Plaintiff contends that the ALJ’s finding that she could perform her past

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relevant work as a cleaner is erroneous because the ALJ improperly segregated

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Plaintiff’s past work according to the least strenuous work function, and

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identified an occupation that is beyond Plaintiff’s functional capacity. (Motion

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at 13-16.) Specifically, Plaintiff contends that she never worked exclusively as a

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cleaner, but always as part of a job as an assistant manager, and thus, the

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cleaner job does not constitute her past relevant work. (Id. at 15.) In addition,

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Plaintiff contends that the VE’s conclusion that a claimant with Plaintiff’s RFC

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could perform the cleaner job, as actually performed, defies common sense

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because the blower used to clean a storage unit would weigh more than 20

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pounds as would the items left in storage. (Id. at 16.)

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Although “[i]t is error for the ALJ to classify an occupation ‘according to

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the least demanding function,’” Carmickle, 533 F.3d at 1166 (quoting Valencia

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v. Heckler, 751 F.2d 1082, 1086 (9th Cir. 1985)), here the VE’s classification of

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Plaintiff’s past relevant work as a cleaner is consistent with her description of

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her former job. In the Work History Report, Plaintiff described her past work

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as an assistant manager. She explained that she managed the facility, including

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“keep[ing] the grounds up.” This involved “[e]verything from sweeping up the

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area to picking weeds.” (AR 195.) She reported that she “would have to lift

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various things that people left in their storage units,” but tried to drag the items

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rather than lifting them, “due to the pain and inability to carry things.” (Id.) At

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the administrative hearing, Plaintiff similarly testified she cleaned the property

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and units. (AR 40, 51.) These activities are consistent with the DOT’s
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description of the cleaner job, which involved, for example, keeping “premises

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of office building, apartment house, or other commercial or institutional

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building in clean and orderly condition.” Dictionary of Occupational Titles,

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381.687-014 Cleaner, commercial or institutional, 1991 WL 673257.

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The ALJ concluded that Plaintiff could perform her past relevant work

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as a cleaner, as actually performed, at the light exertion level. (AR 30.) The

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ALJ based his finding on the VE’s opinion that a hypothetical claimant could

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work as a cleaner as Plaintiff performed that past work, but not as performed

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in the national economy. (AR 30, 58.) Plaintiff contends that the VE’s

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testimony was improper because it “defies common sense” that the blower

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Plaintiff would be required to use to clean a storage unit would weigh less than

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20 pounds or that the items left in the unit weighed less than 20 pounds.

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(Motion at 16.) However, Plaintiff stated in the Work History Report that the

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heaviest weight she lifted was “[l]ess than 10 lbs,” which was the same answer

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she provided in response to the question regarding the weight she “frequently

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lifted.” (AR 195.)

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Thus, the ALJ reasonably relied on the testimony of the VE in

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concluding that Plaintiff’s past relevant work was that of a cleaner and that she

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could perform this past relevant work, as actually performed, particularly given

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that Plaintiff never objected to the VE’s characterization of her past work. See

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Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (finding that “VE’s

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recognized expertise provides the necessary foundation for his or her

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testimony” and “no additional foundation is required.”).

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Moreover, even if the ALJ erred in finding that Plaintiff’s past relevant

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work included the cleaner job, the error was harmless because the ALJ also

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found that Plaintiff could perform her past relevant work as an assistant

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manager, storage facility. (AR 29-30.) See Molina, 674 F.3d at 1115 (harmless-

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error principles apply in the Social Security Act context). Plaintiff appears to
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argue that this finding was not supported by the VE’s testimony because the

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only job identified by the VE based on the hypothetical posed by the ALJ was

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that of the cleaner job. (Motion at 15-16.) The Court disagrees. Although the

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VE’s response to the hypothetical could have been more clear, his response, in

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context, reflected his conclusion that a claimant with Plaintiff’s RFC could

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perform her past relevant work as both an assistant manager and cleaner.

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Specifically, after identifying Plaintiff’s past relevant work as assistant

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manager, storage facility and cleaner, commercial/institutional, the ALJ then

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asked whether a claimant with Plaintiff’s RFC could perform Plaintiff’s past

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relevant work. The vocational expert replied, “Yes, with the cleaner job only

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as actually performed, but not as is performed in the national economy.” (AR

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57-58.) The Court concludes that the ALJ’s conclusion that Plaintiff could

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perform her prior work as an assistant manager, storage facility both as

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actually and as generally performed is supported by the VE’s testimony.

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Accordingly, substantial evidence supports the ALJ’s determination that
Plaintiff could perform her past relevant work.

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IV.

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ORDER

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IT IS ORDERED that Judgment be entered affirming the decision of the
Commissioner and dismissing this action with prejudice.

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Dated:

July 7, 2017
______________________________
JOHN D. EARLY
United States Magistrate Judge

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