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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O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 TERRI LYNN FERGUSON, 12 Plaintiff, 13 14 15 v. NANCY A. BERRYHILL,1 Acting Commissioner of Social Security, 16 Defendant. 17 ) Case No.: EDCV 16-02186-JDE ) ) ) MEMORANDUM OPINION AND ) ) ORDER ) ) ) ) ) ) ) ) 18 Plaintiff Terri Lynn Ferguson (“Plaintiff”) filed a Complaint on October 19 20 15, 2016, seeking review of the Commissioner’s denial of her applications for 21 disability insurance benefits (“DIB”) and supplemental security income 22 (“SSI”). On February 28, 2017 and May 12, 2017, the parties consented to 23 proceed before the undersigned Magistrate Judge. In accordance with the 24 Court’s Case Management Order, Plaintiff filed a Motion for Summary 25 Judgment (“Motion”) on March 1, 2017, and Defendant filed a Cross-Motion 26 27 28 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). 1 1 for Summary Judgment and Opposition to Plaintiff’s Motion for Summary 2 Judgment (“Cross-Motion”) on May 22, 2017. The Court has taken the 3 Motion and Cross-Motion under submission without oral argument and as 4 such, this matter now is ready for decision. 5 I. 6 BACKGROUND 7 On July 12, 2013, Plaintiff applied for DIB and SSI, alleging disability 8 beginning August 14, 2012. (Administrative Record [“AR”] 161-70.) After her 9 application was denied initially (AR 102-06), and on reconsideration (AR 110- 10 16), Plaintiff requested an administrative hearing, which was held on March 11 25, 2015. (AR 35-61, 117.) Plaintiff, represented by counsel, appeared and 12 testified at the hearing before an Administrative Law Judge (“ALJ”). (AR 35- 13 61.) David Rinehart, a vocational expert (“VE”), also testified. 14 On May 13, 2015, the ALJ issued a written decision finding Plaintiff was 15 not disabled. (AR 23-31.) The ALJ found that Plaintiff had not engaged in 16 substantial gainful activity since August 14, 2012. (AR 25.) The ALJ 17 determined that Plaintiff suffered from the following severe impairments: 18 lumbar spondylosis and degenerative disc disease; lumbosacral radiculitis; 19 degenerative bone disease; and cervical spondylosis. (Id.) The ALJ found that 20 Plaintiff did not have an impairment or combination of impairments that met 21 or medically equaled a listed impairment. (AR 27.) The ALJ also found that 22 Plaintiff had the residual functional capacity (“RFC”) to perform light work, 23 with the following limitations. Plaintiff could: (1) lift and carry 20 pounds 24 occasionally and 10 pounds frequently; (2) stand and walk for six hours out of 25 an eight-hour workday; (3) sit for six hours out of an eight-hour workday; (4) 26 occasionally climb stairs and ramps, balance, stoop, kneel, crouch, and crawl, 27 but never climb ladders, ropes, or scaffolds; and (5) not be exposed to 28 concentrated vibrations and hazardous work environments, such as dangerous 2 1 machinery or unprotected heights. (Id.) The ALJ further found that Plaintiff’s 2 RFC did not preclude her from performing her past relevant work as an 3 assistant manager, storage facility, as actually and generally performed, and as 4 a cleaner, commercial/institutional, as actually performed. (AR 29-30.) 5 Accordingly, the ALJ concluded that Plaintiff was not under a “disability,” as 6 defined in the Social Security Act. (AR 30.) 7 Plaintiff filed a request with the Appeals Council for review of the ALJ’s 8 decision. (AR 17-19.) On August 19, 2016, the Appeals Council denied 9 Plaintiff’s request for review, making the ALJ’s decision the Commissioner’s 10 final decision. (AR 1-4.) This action followed. 11 II. 12 STANDARD OF REVIEW 13 Under 42 U.S.C. § 405(g), a district court may review the 14 Commissioner’s decision to deny benefits. The ALJ’s findings and decision 15 should be upheld if they are free from legal error and supported by substantial 16 evidence based on the record as a whole. Brown-Hunter v. Colvin, 806 F.3d 17 487, 492 (9th Cir. 2015) (as amended); Parra v. Astrue, 481 F.3d 742, 746 (9th 18 Cir. 2007). Substantial evidence means such relevant evidence as a reasonable 19 person might accept as adequate to support a conclusion. Lingenfelter v. 20 Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla, but less 21 than a preponderance. Id. To determine whether substantial evidence supports 22 a finding, the reviewing court “must review the administrative record as a 23 whole, weighing both the evidence that supports and the evidence that detracts 24 from the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 720 25 (9th Cir. 1998). “If the evidence can reasonably support either affirming or 26 reversing,” the reviewing court “may not substitute its judgment” for that of 27 the Commissioner. Id. at 720-21; see also Molina v. Astrue, 674 F.3d 1104, 28 1111 (9th Cir. 2012) (“Even when the evidence is susceptible to more than one 3 1 rational interpretation, [the court] must uphold the ALJ’s findings if they are 2 supported by inferences reasonably drawn from the record.”). However, a 3 court may review only the reasons stated by the ALJ in his decision “and may 4 not affirm the ALJ on a ground upon which he did not rely.” Orn v. Astrue, 5 495 F.3d 625, 630 (9th Cir. 2007). Lastly, even when the ALJ commits legal error, the Court upholds the 6 7 decision where that error is harmless. Molina, 674 F.3d at 1115. An error is 8 harmless if it is “inconsequential to the ultimate nondisability determination,” 9 or if “the agency’s path may reasonably be discerned, even if the agency 10 explains its decision with less than ideal clarity.” Brown-Hunter, 806 F.3d at 11 492 (citation omitted). 12 III. 13 DISCUSSION 14 Plaintiff contends that the ALJ: (1) failed to articulate specific and 15 legitimate reasons for rejecting Plaintiff’s credibility and (2) erred in concluding 16 that Plaintiff could perform her past relevant work. As set forth below, the 17 Court affirms the Commissioner’s decision. 18 A. 19 The ALJ properly assessed Plaintiff’s credibility. Where a disability claimant produces objective medical evidence of an 20 underlying impairment that could reasonably be expected to produce the pain 21 or other symptoms alleged, and there is no evidence of malingering, the ALJ 22 must provide “‘specific, clear and convincing reasons for’ rejecting the 23 claimant’s testimony regarding the severity of the claimant’s symptoms.” 24 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) 25 (citation omitted); Lingenfelter, 504 F.3d at 1036; Moisa v. Barnhart, 367 F.3d 26 882, 885 (9th Cir. 2004); see also 20 C.F.R. §§ 404.1529(a), 416.929(a). “In 27 reaching a credibility determination, an ALJ may weigh inconsistencies 28 between the claimant’s testimony and his or her conduct, daily activities, and 4 1 work record, among other factors.” Bray v. Comm’r of Soc. Sec. Admin., 554 2 F.3d 1219, 1227 (9th Cir. 2009). The ALJ’s credibility findings “must be 3 sufficiently specific to allow a reviewing court to conclude that the [ALJ] 4 rejected [the] claimant’s testimony on permissible grounds and did not 5 arbitrarily discredit the claimant’s testimony.” Moisa, 367 F.3d at 885 (citation 6 omitted). However, if the ALJ’s assessment of the claimant’s testimony is 7 reasonable and is supported by substantial evidence, it is not the court’s role to 8 “second-guess” it. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 9 During the administrative hearing, Plaintiff testified that she worked as a 10 storage facility manager until approximately August 2012, when she was let go 11 because she could no longer do the work. (AR 40-41.) She explained that she 12 could no longer work because she had severe pain throughout her whole body 13 and was taking “a lot of medication.” (AR 41.) She stated that she took 14 medication for her symptoms, “but none of them seem[] to work,” although 15 she indicated that the Ambien helped. (AR 42, 45, 47.) She also used 16 massagers, TENS, or transcutaneous electrical nerve stimulation, units, a back 17 brace, heating pads, and a cane. (AR 40, 42, 44-45.) She reported that she 18 drives once a month; tries to keep up with house cleaning, but it is difficult; 19 does not do any grocery shopping; uses the microwave for cooking; and does 20 her own laundry. (AR 39.) She also indicated that it takes her three hours to 21 shower and get dressed because of the pain. (AR 56.) Plaintiff indicated that 22 she could sit or stand for 10-15 minutes before it would become painful and 23 she would need to adjust. (AR 40.) She also explained that sitting and driving 24 are difficult because her legs went numb. (AR 50, 54.) She explained that she 25 could walk as far as her residence to the car and had difficulty grasping things. 26 (AR 40, 46.) She explained that her activity level had gone down over the 27 years because of the pain and use of a cane. (AR 49.) According to Plaintiff, 28 she spends 75% of her day lying down. (AR 56; see also AR 221 (indicating 5 1 2 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 3 lumbar spondylosis and degenerative disc disease; lumbosacral radiculitis; 4 degenerative bone disease; and cervical spondylosis, but that Plaintiff’s 5 “statements concerning the intensity, persistence, and limiting effects of [her] 6 symptoms [were] not fully credible.” (AR 28.) The ALJ provided legally 7 sufficient reasons for rejecting Plaintiff’s credibility. 8 First, the ALJ discounted Plaintiff’s complaints regarding the severity of 9 her symptoms and limitations as inconsistent with a conservative treatment 10 plan. (AR 28.) The ALJ found that Plaintiff received routine, conservative 11 treatment that generally consisted of pain medication. (Id.) She repeatedly 12 reported to her physician that the medication relieved her pain. (Id.) The ALJ 13 also noted that Plaintiff reported that her pain was relieved with use of a back 14 brace, heat, ice, and lying down. (AR 29.) The ALJ reasoned that the absence 15 of more aggressive treatment suggested that Plaintiff’s symptoms and 16 limitations were not as severe as she alleged. (Id.) 17 Substantial evidence in the record supports the ALJ’s conclusion that 18 Plaintiff received conservative, effective treatment. “[E]vidence of 19 ‘conservative treatment’ is sufficient to discount a claimant’s testimony 20 regarding severity of an impairment.” Parra, 481 F.3d at 750-51; see also 21 Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (favorable response 22 to conservative treatment, including medication, may undermine a claimant’s 23 assertions of disabling pain); Nguyen v. Astrue, 2011 WL 1226124, at *7 (N.D. 24 Cal. Mar. 31, 2011) (“Evidence of conservative treatment, alone, is sufficient 25 to discount credibility.”). Here, Plaintiff’s claims of debilitating, constant pain 26 are contradicted by her repeated reports to her treating physicians that the pain 27 was relieved by medication and other conservative treatments. (See, e.g., AR 28 237 (treatment note dated 3/11/13, indicating that “[t]he pain is relieved by 6 1 medications, rest” and “[t]he pain medications are helping”), 240 (treatment 2 note dated 2/13/13, indicating that “[t]he pain is relieved by medications, 3 rest” and “[t]he pain medications are helping”), 246 (treatment note dated 4 12/20/12, indicating that “[t]he pain is relieved by heat, medications” and 5 “[t]he pain medications are helping”), 249 (treatment note dated 11/26/12, 6 indicating that “[t]he pain is relieved by medications, heat” and “[t]he pain 7 medications are helping”), 284 (treatment note dated 12/18/14, indicating that 8 “[t]he pain is relieved by medications, heat” and “[t]he pain medications are 9 helping”), 287 (treatment note dated 11/20/14, indicating that “[t]he pain is 10 relieved by medications, heat, TENS unit, massage, ice” and “[t]he pain 11 medications are helping”), 290 (treatment note dated 10/22/14, indicating that 12 “[t]he pain is relieved by medications” and “[t]he pain medications are 13 helping”), 293 (treatment note dated 9/24/14, indicating that “[t]he pain is 14 relieved by medications, position change” and “[t]he pain medications are 15 helping”), 296 (treatment note dated 8/26/14, indicating that “[t]he pain is 16 relieved by medications, heat, massage, body brace” and “[t]he pain 17 medications are helping”).) See also, e.g., Medel v. Colvin, 2014 WL 6065898, 18 at *8 (C.D. Cal. Nov. 13, 2014) (affirming ALJ’s characterization of the 19 plaintiff’s treatment as conservative where his medical records showed that he 20 had been “prescribed only Vicodin and Tylenol for his allegedly debilitating 21 low-back pain.” (internal footnote omitted)). She reported on a single occasion 22 that the medication was not helping enough. In response, the treating 23 physician increased the dosage, and at the next appointment, Plaintiff again 24 reported that the pain was relieved by the medication. (AR 299-304.) 25 “Impairments that can be controlled effectively with medication are not 26 disabling for the purpose of determining eligibility for [Social Security] 27 benefits.” See Warre v. Comm’r of the Soc. Sec. Admin., 439 F.3d 1001, 1006 28 (9th Cir. 2006). This is particularly true where, as here, Plaintiff’s treating 7 1 physician recommended a more aggressive treatment, i.e., an epidural steroid 2 injection, and she rejected it. (See, e.g., AR 233, 236, 238.) See Nguyen v. 3 Colvin, 2013 WL 6536732, at *4 (C.D. Cal. Dec. 12, 2013) (concluding that 4 the ALJ’s decision to discount claims of disabling pain because conservative 5 treatment was inconsistent with those claims was supported by the record, 6 particularly where her doctor had recommended a more aggressive treatment 7 and plaintiff rejected it); Valdez v. Comm’r of Soc. Sec., 2011 WL 489694, at 8 *5 (E.D. Cal. Feb. 7, 2011) (finding that the ALJ’s credibility determination 9 was supported by the record as a whole where the ALJ considered the fact that 10 the plaintiff’s pain was controlled with Methadone and the plaintiff declined 11 more aggressive treatment, such as epidural steroid injections). 12 Plaintiff maintains that taking a narcotic medication is not a form of 13 conservative treatment, citing to Tunstell v. Astrue, 2012 WL 3765139 (C.D. 14 Cal. Aug. 30, 2012) and Nevins v. Astrue, 2011 WL 6103057 (C.D. Cal. Dec. 15 8, 2011). (Motion at 9.) However, both cases are distinguishable. In Tunstell, 16 the medical records reflected that the plaintiff was a candidate for 17 neurosurgical intervention because her pain medication did not provide her 18 relief. 2012 WL 3765139, at *4. Similarly, in Nevins, the plaintiff actually 19 underwent surgery for his shoulder. 2011 WL 6103057, at *5. Here, although 20 Plaintiff reported at the hearing that her physician had discussed surgery (AR 21 48), there are no references to surgery in her medical records, and as explained, 22 she repeatedly reported that her pain medication was helping to relieve her 23 pain. Similarly, Plaintiff’s use of a TENS unit does not reflect aggressive 24 treatment. See Tommasetti, 533 F.3d at 1040 (ALJ properly discredited 25 plaintiff’s credibility because conservative treatment, including physical 26 therapy, use of anti-inflammatory medication, a TENS unit, and a lumbosacral 27 corset were effective); Morris v. Colvin, 2014 WL 2547599, at *4 (C.D. Cal. 28 June 3, 2014) (ALJ properly discounted credibility in part because claimant 8 1 2 received conservative treatment, including use of TENS unit and Vicodin). Plaintiff also refers to the additional treatment note dated April 24, 2015 3 submitted to the Appeals Council. (Motion at 9.) Again, however, nothing in 4 this treatment note reflects a recommendation for more aggressive treatment. 5 (AR 322-24.) Indeed, this treatment note reflects no abnormalities of the spine 6 or extremities and normal range of motion of the lower back. (Id.) Plaintiff’s 7 conservative treatment was a clear and convincing reason to discount the 8 credibility of her statements. 9 Next, the ALJ rejected Plaintiff’s credibility because the objective and 10 clinical medical evidence did not support her allegations of disabling 11 limitations to the extent alleged. (AR 28.) Although a lack of objective medical 12 evidence cannot be the sole reason for rejecting a claimant’s testimony, it can 13 be one of several factors used in evaluating the credibility of Plaintiff’s 14 subjective complaints. Rollins, 261 F.3d at 856-57. The ALJ noted that an 15 MRI performed in November 2012 revealed findings that included disc 16 protrusion at L3-4; a right paracentral disc protrusion at L5-S1; neuroforminal 17 stenosis; and hypertrophy at L3-4, L4-5, and L5-S1. (AR 28; see also AR 250.) 18 Plaintiff’s June 2013 physical examination revealed limited positive findings 19 that included tenderness in the lumbar paraspinal muscles and pain with 20 flexion and extension of the spine. (AR 28.) The ALJ noted, however, that 21 Plaintiff exhibited good range of motion in her bilateral lower extremities, had 22 a negative straight-leg raising test bilaterally, and motor strength of five out of 23 five. (Id.) As the ALJ indicated, subsequent treatment notes reflected similar 24 findings. (Id.; see, e.g., AR 272, 275, 312.) This evidence was substantial and 25 reasonably supported the ALJ’s conclusion that Plaintiff’s symptoms and 26 limitations were inconsistent with the objective medical evidence. Accordingly, 27 the ALJ properly relied on a lack of objective evidence to discount Plaintiff’s 28 credibility. 9 1 Finally, the ALJ found that “[s]ome of [Plaintiff’s] reported activities 2 since the alleged onset date are inconsistent with her alleged disabling 3 functional limitations.” (AR 28.) The ALJ summarized certain activities 4 identified by Plaintiff in her testimony and during her psychiatric evaluation, 5 “which included performing personal care, running errands, performing 6 minimal household chores, preparing meals, watching television, and using the 7 computer.” The ALJ determined that these activities involved similar 8 exertional levels and skills required of some jobs, suggesting that Plaintiff was 9 capable of some work. (Id.) 10 The Ninth Circuit has “repeatedly warned that ALJs must be especially 11 cautious in concluding that daily activities are inconsistent with testimony 12 about pain, because impairments that would unquestionably preclude work 13 and all the pressures of a workplace environment will often be consistent with 14 doing more than merely resting in bed all day.” Garrison v. Colvin, 759 F.3d 15 995, 1016 (9th Cir. 2014); Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 16 2001) (“This court has repeatedly asserted that the mere fact that a plaintiff has 17 carried on certain daily activities, such as grocery shopping, driving a car, or 18 limited walking for exercise, does not in any way detract from her credibility as 19 to her overall disability.”). “[O]nly if [her] level of activity [was] inconsistent 20 with [a claimant’s] claimed limitations would these activities have any bearing 21 on [her] credibility.” Garrison, 759 F.3d at 1016. Here, the ALJ erred in 22 relying on Plaintiff’s reported daily activities because those activities were not 23 inconsistent with her subjective complaints and did not suggest that she was 24 capable of meeting the demands of work on a sustained basis. See Garrison, 25 759 F.3d at 1015-1016; Vertigan, 260 F.3d at 1049-50. 26 Plaintiff also contends that the ALJ’s credibility determination was 27 flawed because he gave “short shrift” to her good work history. Plaintiff 28 essentially argues that someone with such a good work history would not stop 10 1 working for any reason other than actual disability, thereby bolstering the 2 credibility of her subjective allegations. (Motion at 12 (citing to Schaal v. 3 Apfel, 134 F.3d 496, 502 (2d Cir. 1998).) While a claimant’s work history may 4 be deemed probative of credibility, work history is only one factor that the ALJ 5 may consider. See Bray, 554 F.3d at 1227; see also Avila v. Astrue, 2011 WL 6 4457121, at *9 (E.D. Cal. Sept. 23, 2011) (rejecting claim that an ALJ failed to 7 consider positive work history where the ALJ’s credibility finding were 8 “sufficiently specific to allow a reviewing court to conclude the ALJ rejected 9 the claimant’s testimony on permissible grounds and did not arbitrarily 10 discredit the claimant’s testimony” (citation omitted)); Miller v. Astrue, 2008 11 WL 4502111, at *9 (E.D. Cal. Oct. 7, 2008) (“although evidence supporting an 12 ALJ’s conclusions might also permit an interpretation more favorable to the 13 claimant, if the ALJ’s interpretation of evidence was rational, this Court must 14 uphold the ALJ’s decision where the evidence is susceptible to more than one 15 rational interpretation”). As another district court considering a similar issue 16 explained, Schaal indicates that a “good work history may be deemed 17 probative of credibility,” but it “does not require an ALJ to credit testimony 18 from a plaintiff with a ‘good’ work history.” Smith v. Colvin, 2013 WL 19 1156497, at *7 (E.D. Cal. Mar. 19, 2013) (citing Schaal, 134 F.3d at 502). 20 “Although the ALJ must consider a broad spectrum of evidence, including 21 prior work record, an ALJ is not required to include a discussion of a 22 claimant’s work history in his or her determination.” Gill v. Astrue, 2011 WL 23 6826728, at *5 (S.D. Cal. Dec. 28, 2011); see also Lamberson v. Astrue, 2012 24 WL 4494813, at *5 (C.D. Cal. Sept. 28, 2012) (“Even if Plaintiff’s work history 25 is commendable, Plaintiff has not cited any case law that requires an ALJ to 26 elevate work history to a dispositive factor, or to discuss it in his ruling if it is 27 not necessary to do so.”). Plaintiff has not shown that the ALJ’s failure to 28 engage in a more elaborate discussion of her work history was error. See 11 1 Curry-Collins v. Berryhill, 2017 WL 2312351, at *6 (C.D. Cal. May 25, 2017) 2 (even if the ALJ erred in failing to consider work history in credibility 3 determination, the error was harmless because the ALJ articulated other 4 specific, clear, and convincing reasons sufficient to support the finding). Where, as here, an ALJ provides legally sufficient reasons supporting his 5 6 credibility determination, the ALJ’s reliance on erroneous reasons is harmless 7 “[s]o long as there remains substantial evidence supporting the ALJ’s 8 conclusions on . . . credibility and the error does not negate the validity of the 9 ALJ’s ultimate [credibility] conclusion . . . .” Carmickle v. Comm’r, Soc. Sec. 10 Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (internal quotation marks 11 omitted). Since the ALJ articulated two other legally sufficient reasons 12 supporting his adverse credibility finding, his reliance on Plaintiff’s daily 13 activities was harmless. See Nava v. Colvin, 2017 WL 706099, at *5 (C.D. Cal. 14 Feb. 21, 2017) (since history of conservative treatment and lack of 15 corroborating medical evidence were legally sufficient reasons supporting the 16 ALJ’s credibility finding, reliance on plaintiff’s daily activities was harmless). Accordingly, reversal is not warranted based on the ALJ’s credibility 17 18 determination. 19 B. The ALJ did not err in concluding that Plaintiff could perform her 20 past relevant work. 21 Plaintiff asserts that the ALJ improperly concluded that Plaintiff’s past 22 relevant work included work as a cleaner and that she could perform this past 23 relevant work. (Motion at 13-16.) 24 “To determine whether a claimant has the residual capacity to perform 25 [her] past relevant work, the [ALJ] must ascertain the demands of the 26 claimant’s former work and then compare the demands with [her] present 27 capacity.” Villa v. Heckler, 797 F.2d 794, 797-98 (9th Cir. 1986). The claimant 28 has the burden to prove that she cannot perform her prior relevant work 12 1 “either as actually performed or as generally performed in the national 2 economy.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1166 (9th 3 Cir. 2008) (citation omitted). Plaintiff must demonstrate an inability to return 4 to her former type of work and not just her former job. Villa, 797 F.2d at 798; 5 see also 20 C.F.R. §§ 404.1520(f), 416.920(f). 6 Plaintiff contends that the ALJ’s finding that she could perform her past 7 relevant work as a cleaner is erroneous because the ALJ improperly segregated 8 Plaintiff’s past work according to the least strenuous work function, and 9 identified an occupation that is beyond Plaintiff’s functional capacity. (Motion 10 at 13-16.) Specifically, Plaintiff contends that she never worked exclusively as a 11 cleaner, but always as part of a job as an assistant manager, and thus, the 12 cleaner job does not constitute her past relevant work. (Id. at 15.) In addition, 13 Plaintiff contends that the VE’s conclusion that a claimant with Plaintiff’s RFC 14 could perform the cleaner job, as actually performed, defies common sense 15 because the blower used to clean a storage unit would weigh more than 20 16 pounds as would the items left in storage. (Id. at 16.) 17 Although “[i]t is error for the ALJ to classify an occupation ‘according to 18 the least demanding function,’” Carmickle, 533 F.3d at 1166 (quoting Valencia 19 v. Heckler, 751 F.2d 1082, 1086 (9th Cir. 1985)), here the VE’s classification of 20 Plaintiff’s past relevant work as a cleaner is consistent with her description of 21 her former job. In the Work History Report, Plaintiff described her past work 22 as an assistant manager. She explained that she managed the facility, including 23 “keep[ing] the grounds up.” This involved “[e]verything from sweeping up the 24 area to picking weeds.” (AR 195.) She reported that she “would have to lift 25 various things that people left in their storage units,” but tried to drag the items 26 rather than lifting them, “due to the pain and inability to carry things.” (Id.) At 27 the administrative hearing, Plaintiff similarly testified she cleaned the property 28 and units. (AR 40, 51.) These activities are consistent with the DOT’s 13 1 description of the cleaner job, which involved, for example, keeping “premises 2 of office building, apartment house, or other commercial or institutional 3 building in clean and orderly condition.” Dictionary of Occupational Titles, 4 381.687-014 Cleaner, commercial or institutional, 1991 WL 673257. 5 The ALJ concluded that Plaintiff could perform her past relevant work 6 as a cleaner, as actually performed, at the light exertion level. (AR 30.) The 7 ALJ based his finding on the VE’s opinion that a hypothetical claimant could 8 work as a cleaner as Plaintiff performed that past work, but not as performed 9 in the national economy. (AR 30, 58.) Plaintiff contends that the VE’s 10 testimony was improper because it “defies common sense” that the blower 11 Plaintiff would be required to use to clean a storage unit would weigh less than 12 20 pounds or that the items left in the unit weighed less than 20 pounds. 13 (Motion at 16.) However, Plaintiff stated in the Work History Report that the 14 heaviest weight she lifted was “[l]ess than 10 lbs,” which was the same answer 15 she provided in response to the question regarding the weight she “frequently 16 lifted.” (AR 195.) 17 Thus, the ALJ reasonably relied on the testimony of the VE in 18 concluding that Plaintiff’s past relevant work was that of a cleaner and that she 19 could perform this past relevant work, as actually performed, particularly given 20 that Plaintiff never objected to the VE’s characterization of her past work. See 21 Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (finding that “VE’s 22 recognized expertise provides the necessary foundation for his or her 23 testimony” and “no additional foundation is required.”). 24 Moreover, even if the ALJ erred in finding that Plaintiff’s past relevant 25 work included the cleaner job, the error was harmless because the ALJ also 26 found that Plaintiff could perform her past relevant work as an assistant 27 manager, storage facility. (AR 29-30.) See Molina, 674 F.3d at 1115 (harmless- 28 error principles apply in the Social Security Act context). Plaintiff appears to 14 1 argue that this finding was not supported by the VE’s testimony because the 2 only job identified by the VE based on the hypothetical posed by the ALJ was 3 that of the cleaner job. (Motion at 15-16.) The Court disagrees. Although the 4 VE’s response to the hypothetical could have been more clear, his response, in 5 context, reflected his conclusion that a claimant with Plaintiff’s RFC could 6 perform her past relevant work as both an assistant manager and cleaner. 7 Specifically, after identifying Plaintiff’s past relevant work as assistant 8 manager, storage facility and cleaner, commercial/institutional, the ALJ then 9 asked whether a claimant with Plaintiff’s RFC could perform Plaintiff’s past 10 relevant work. The vocational expert replied, “Yes, with the cleaner job only 11 as actually performed, but not as is performed in the national economy.” (AR 12 57-58.) The Court concludes that the ALJ’s conclusion that Plaintiff could 13 perform her prior work as an assistant manager, storage facility both as 14 actually and as generally performed is supported by the VE’s testimony. 15 16 Accordingly, substantial evidence supports the ALJ’s determination that Plaintiff could perform her past relevant work. 17 IV. 18 ORDER 19 20 IT IS ORDERED that Judgment be entered affirming the decision of the Commissioner and dismissing this action with prejudice. 21 22 Dated: July 7, 2017 ______________________________ JOHN D. EARLY United States Magistrate Judge 23 24 25 26 27 28 15

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