Blanchet v. Commissioner of Social Security

Filing 14

ORDER DENYING Plaintiff's Appeal From the Administrative Decision of the Commissioner of Social Security signed by Magistrate Judge Gary S. Austin on 6/20/2011. CASE CLOSED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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KELLI L. BLANCHET,
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Plaintiff,
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v.
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MICHAEL J. ASTRUE, Commissioner
of Social Security,

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Defendant.
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) 1:10-cv-01057 GSA
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) ORDER REGARDING PLAINTIFF’S
) SOCIAL SECURITY COMPLAINT
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BACKGROUND

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Plaintiff Kelli L. Blanchet (“Plaintiff”) seeks judicial review of a final decision of the

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Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for

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disability and supplemental security income benefits pursuant to Titles II and XVI of the Social

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Security Act. The matter is currently before the Court on the parties’ briefs, which were

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submitted, without oral argument, to the Honorable Gary S. Austin, United States Magistrate

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Judge.1

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The parties consented to the jurisdiction of the United States Magistrate Judge. (See Docs. 8 & 9.)

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FACTS AND PRIOR PROCEEDINGS2

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Plaintiff protectively filed an application for disability insurance benefits and

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supplemental security income benefits in March 2007, alleging disability beginning February 1,

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2007. AR 121-129. Plaintiff’s application was denied initially and on reconsideration, and

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Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). AR 83-96. ALJ

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Stephen W. Webster held a hearing on July 17, 2009, and issued an order denying benefits on

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October 27, 2009, finding Plaintiff was not disabled. AR 9-16. On March 25, 2010, the Appeals

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Council denied review. AR 1-3.

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Hearing Testimony

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ALJ Webster held a hearing on July 17, 2009, in Fresno, California. Plaintiff appeared

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and testified; she was represented by attorney Melissa Proudian. Vocational Expert (“VE”)

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Thomas Dachelet also testified. AR 17-44.

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Plaintiff resides in Fresno, California. AR 20-21. She was born May 18, 1968, and

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currently weighs 220 pounds and stands five foot two inches tall. AR 21. Plaintiff lives with her

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husband and seventeen year old child. AR 21-22. She is currently receiving food stamps and a

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welfare benefit of approximately $25 a month. AR 26.

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Because she has never had a driver’s license, Plaintiff uses public transportation or

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depends upon her husband for a ride. AR 22. Plaintiff did not receive a diploma for graduating

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high school nor did she earn a GED. AR 24.

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Plaintiff can take care of her personal grooming needs like bathing and dressing. AR 22.

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She does cooking and “light cleaning.” Plaintiff also does the laundry, however, she does not

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carry the laundry “wherever it needs to go.” AR 22.

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For perhaps two to three hours a day, Plaintiff watches televison. AR 22. She reads

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about thirty minutes before going to sleep at night in an effort to relax. AR 22-23. When asked

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how long she might spend on a computer during the day, Plaintiff indicated that she was

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currently enrolled in a program to become an office assistant and thus was at school for about six

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References to the Administrative Record will be designated as “AR,” followed by the appropriate page

number.

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hours a day. AR 23. She attends “Caesar Terrace” school. AR 24. The majority of her time

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spent in class is spent on a computer. AR 23; see also AR 25. When asked whether she enjoys

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any hobbies, Plaintiff indicated that she enjoys making arts and crafts items with beads and

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flowers. AR 23.

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Plaintiff is able to attend church and go out to visit family and friends, and “[o]nce in a
blue moon” she will go to a movie. AR 23-24.
In 2001 and 2003, Plaintiff worked full time as a waitress. On average she would lift

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between ten and fifteen pounds at a time. AR 31-32. Prior to that, Plaintiff worked with

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disabled adults as a certified nursing assistant. The heaviest weight she lifted in that position was

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about 100 pounds. AR 32-33. After becoming disabled in February 2007, Plaintiff did try to

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work at a “training shop” for about three hours a day. However, after learning of her disability,

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she was told that she could not work there without a doctor’s note. AR 25-26.

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Plaintiff is treated by Dr. Carlos Cordova for her ailments, including left shoulder, back

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and pelvis injuries, Bell’s palsy, and depression and anxiety. AR 26-27. She sees the doctor

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about every three months and is on medications to control the pain. The medications allow her to

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“move around” and help “some days.” AR 27. Dr. Cordova prescribed a cane and she uses it at

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all times. AR 28. The cane helps with walking and balance. AR 41.

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When asked how long she could sit, Plaintiff indicated she could sit for approximately

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thirty to forty-five minutes. AR 27. She can stand for about fifteen to twenty minutes. AR 27-

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28. Plaintiff stated that she cannot lift more than ten pounds because she cannot maintain a hold

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on a weight greater than that. AR 28.

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As a result of abuse, Plaintiff suffers from anxiety. She gets scared and nervous easily.

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She does not like heights, yelling or loud noises. AR 28-29. Plaintiff also suffers from

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depression and described feeling sad and frustrated because of the pain and her inability to work.

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AR 29. Plaintiff is a recovered alcoholic and drug addict, and has been clean and sober for eight

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years. She attends Alcoholics Anonymous meetings three to four times a week. AR 30.

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When she was asked whether regular breaks are taken while she is attending classes,
Plaintiff indicated the morning and afternoon breaks are fifteen minutes, and the lunch break is
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thirty minutes. In addition, she takes two or three extra breaks - after every thirty to forty-five

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minutes - because she feels pain after sitting for any longer period. During that time, she is not

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sitting at a computer or participating, rather she is up and walking. AR 34. She also has

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difficulty concentrating as a result of medication. Plaintiff estimated that she could maintain

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concentration for about forty-five minutes before needing a break. AR 34-35.

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When she gets home from school, Plaintiff rests for about an hour and a half. She is tired

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from “sitting in the pain.” She props her legs up on pillows to avoid muscle spasms in her back

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and legs. AR 37.

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Plaintiff testified that her pain was caused by a car accident “a long time ago.” Plaintiff’s

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shoulder was “shattered” as was her “pelvic bone” when it hit the gearshift. She was hospitalized

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for a month and underwent extensive physical therapy. AR 35-36. She can reach overhead, as if

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to get something out of a cupboard, or reach her arm out in front of her, but it causes pain. AR

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36. She does not bend or squat because it is hard to get back up. She cannot walk on uneven

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surfaces without tripping. AR 36. Walking up a flight of stairs also causes pain. AR 37.

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Plaintiff also suffers from headaches. AR 38.

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VE Thomas Dachelet was asked to consider a hypothetical worker of Plaintiff’s age,

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education and work history, who could lift twenty pounds on occasion and ten pounds frequently

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with the ability to sit, stand or walk for six hours in an eight-hour workday. However, the worker

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could only occasionally stoop, crouch, crawl and kneel, could not perform any overhead lifting

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on the dominant left arm, and was limited to simple routine and repetitive work. AR 39. The

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VE indicated such an individual could not perform Plaintiff’s past relevant work. However, the

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individual could perform sedentary, unskilled work and a significant portion of the world of light

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work, recognizing the overhead reaching limitation. AR 39.

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The VE could not identify specific job titles that would be eliminated as a result of the

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limitations identified, but felt comfortable estimating that fifty percent of the light work would be

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eliminated. AR 39-40. In consideration thereof, the VE identified the representative title of

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bagger, DOT3 920.687-018, with about 30,369 jobs in California. AR 40. Another example

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offered was garment sorter, DOT 222.687-014, 32,499 positions. AR 40. Next, the VE

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identified the title of grader, DOT 529.665-010, and 19,918 such positions. AR 40. The VE

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indicated his testimony conformed to the DOT, excepting the fifty percent reduction identified.

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AR 40-41.

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Next, in a second hypothetical, the VE was asked to assume the same factors as indicated

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previously, however, the individual also requires the assistance of a cane. The VE indicated such

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an individual could perform sedentary, unskilled work. Here, the VE identified the following

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positions that such a hypothetical individual could perform: ampoule sealer, DOT 559.687-014,

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with 1,859 positions; loader - semiconductor dies, DOT 726.687-030, with 5,200 positions; and

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weight tester, DOT 539.485-010, and 1,731 positions. AR 41-42. The VE indicated his

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testimony conformed to the DOT. AR 42.

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Finally, in a third hypothetical, the VE was asked to assume the same factors as those

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present in the first and second hypothetical questions, and the additional limitation that the

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worker required two to three extra rest breaks during the work day. AR 42. VE Dachelet

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testified that such an individual could neither perform Plaintiff’s past relevant work nor any other

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work. AR 42-43.

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Medical Record

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The entire medical record was reviewed by the Court. AR 212-308. The medical

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evidence will be referenced below if necessary in this Court’s decision.

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ALJ’s Findings

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Using the Social Security Administration’s five-step sequential evaluation process, the

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ALJ determined that Plaintiff did not meet the disability standard. AR 9-16.
More particularly, the ALJ found that Plaintiff had not engaged in substantial gainful

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activity since February 1, 2007. AR 11. Further, the ALJ identified the following severe

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impairments: injuries to the left shoulder, back and pelvis; degenerative disc disease; obesity; and

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“DOT” refers t the Dictionary of Occupational Titles.

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depression. AR 11. Nonetheless, the ALJ determined that the severity of the Plaintiff’s

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impairments do not, individually or in combination, meet or exceed any of the listed

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impairments. AR 12.

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Based on his review of the entire record, the ALJ determined that Plaintiff has the

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residual functional capacity (“RFC”) to lift twenty pounds occasionally and ten pounds

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frequently; sit, stand and/or walk for six hours in an eight-hour workday; occasionally stoop,

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crouch, crawl and kneel; but is precluded from all overhead work with the dominant left upper

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extremity, and is further limited to simple routine and repetitive work. AR 12-15.

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Next, the ALJ determined that Plaintiff could not perform her past relevant work. AR 15.

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Nevertheless, based upon Plaintiff’s age, education, work experience and RFC, the ALJ

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determined there were jobs that existed in significant numbers in the regional economy that

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Plaintiff could perform. Specifically, the ALJ found Plaintiff could perform the work of a

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bagger, garment sorter or grader. AR 15-16.

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SCOPE OF REVIEW

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Congress has provided a limited scope of judicial review of the Commissioner’s decision

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to deny benefits under the Act. In reviewing findings of fact with respect to such determinations,

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this Court must determine whether the decision of the Commissioner is supported by substantial

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evidence. 42 U.S.C. § 405 (g). Substantial evidence means “more than a mere scintilla,”

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Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v.

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Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 1975). It is “such relevant evidence as a

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reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at

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401. The record as a whole must be considered, weighing both the evidence that supports and

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the evidence that detracts from the Commissioner’s conclusion. Jones v. Heckler, 760 F.2d 993,

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995 (9th Cir. 1985). In weighing the evidence and making findings, the Commissioner must

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apply the proper legal standards. E.g., Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).

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This Court must uphold the Commissioner’s determination that the claimant is not disabled if the

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Secretary applied the proper legal standards, and if the Commissioner’s findings are supported by

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substantial evidence. See Sanchez v. Sec’y of Health and Human Serv., 812 F.2d 509, 510 (9th

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Cir. 1987).

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REVIEW
In order to qualify for benefits, a claimant must establish that he is unable to engage in

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substantial gainful activity due to a medically determinable physical or mental impairment which

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has lasted or can be expected to last for a continuous period of not less than twelve months. 42

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U.S.C. § 1382c (a)(3)(A). A claimant must show that he has a physical or mental impairment of

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such severity that he is not only unable to do her previous work, but cannot, considering his age,

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education, and work experience, engage in any other kind of substantial gainful work which

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exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989).

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The burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th

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Cir. 1990).

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In an effort to achieve uniformity of decisions, the Commissioner has promulgated

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regulations which contain, inter alia, a five-step sequential disability evaluation process. 20

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C.F.R. §§ 404.1520 (a)-(f), 416.920 (a)-(f) (1994). Applying this process in this case, the ALJ

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found that Plaintiff: (1) had not engaged in substantial gainful activity since the alleged onset of

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her disability; (2) has an impairment or a combination of impairments that is considered “severe”

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based on the requirements in the Regulations (20 CFR §§ 416.920(b)); (3) does not have an

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impairment or combination of impairments which meets or equals one of the impairments set

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forth in 20 C.F.R., Part 404, Subpart P, Appendix 1; (4) was unable to perform her past relevant

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work; yet (5) retained the RFC to perform other jobs that exist in significant numbers in the

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national economy. AR 9-16.

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Here, Plaintiff argues that the ALJ’s findings are not supported by substantial evidence

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and are not free of legal error because the positions identified by the VE - grader, bagger and

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garment sorter - preclude overhead reaching, and require more than occasional stooping,

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crouching, crawling and kneeling. Thus, Plaintiff argues the findings do not comport with the

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ALJ’s RFC. (Doc. 12 at 5-14.)

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DISCUSSION

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A.

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At step five, the ALJ considers whether the impairment prevents the claimant from

Step Five Determination

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performing his or her past work, and determines whether the claimant can engage in other types

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of substantial gainful work that exist in the national economy. 20 C.F.R. §§ 404.1520(f) &

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416.920(f).

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Plaintiff first argues that the ALJ improperly relied upon the VE’s testimony regarding

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the position of grader, DOT 529.665-010, because the position requires a frequent ability to

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stoop, kneel and crouch. (Doc. 12 at 6.) Plaintiff complains that because the ALJ offered no

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explanation of how an individual limited to occasional stooping, crouching and kneeling, could

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perform the duties of a grader, the ALJ committed legal error. (Doc. 12 at 6-7.) Further,

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Plaintiff contends there is a “conflict and deviation between the DOT” and the VE’s testimony,

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and the ALJ failed to elicit a reason for this conflict. (Doc. 12 at 7-10.) Plaintiff similarly argues

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that due to the ALJ’s finding that Plaintiff was precluded from overhead work, the bagger and

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garment sorter positions are unavailable to Plaintiff as both require reaching overhead frequently.

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(Doc. 12 at 10-14. ) The Commissioner contends the ALJ’s findings are supported by

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substantial evidence and are free of legal error. (Doc. 13 at 4-6.)

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Here, ALJ Webster determined that Plaintiff had the RFC to lift twenty pounds

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occasionally and ten pounds frequently, sit, stand and/or walk for six hours in an eight-hour

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workday, and occasionally stoop, crouch, crawl and kneel. However, he also determined that

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Plaintiff was precluded from all overhead work with the dominant left upper extremity, and that

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she was further limited to simple routine and repetitive work. AR 12-15.

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Significantly, the Court notes that Plaintiff has failed to explain why, even assuming

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arguendo the ALJ’s findings at step five regarding light work were erroneous, reversal is required

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in this case. Plaintiff ignores the VE’s testimony that the entire world of sedentary work is

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available to an individual such as Plaintiff, having already considered the preclusion of overhead

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lifting on the dominant left arm, as well as the occasional ability to stoop, crouch, crawl and

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kneel. See AR 39 (“All of what are the sedentary unskilled” jobs are available), AR 41-42
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(sedentary jobs available such as ampoule sealer, loader - semiconductor dies, and weight tester).

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This oversight is critical.

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Title 20 of the Code of Federal Regulations section 404.1567(a) defines sedentary work
as follows:
Sedentary work involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small tools.
Although a sedentary job is defined as one which involves sitting, a certain
amount of walking and standing is often necessary in carrying out job duties. Jobs
are sedentary if walking and standing are required occasionally and other
sedentary criteria are met.

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Because Plaintiff’s RFC properly encompasses the entire world of sedentary work, the

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ALJ’s findings - assuming without deciding error occurred regarding the VE’s testimony and the

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light work positions identified - should be upheld. In other words, the error, if any, is harmless

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regarding the RFC as it relates to Plaintiff’s ability to perform light work because the entire

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world of sedentary work remains open to her. Moreover, Plaintiff has not challenged the RFC or

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ALJ Webster’s other findings in any way. Harmless error applies in the Social Security context.

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See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“A decision of the ALJ will not be

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reversed for errors that are harmless” [citing Curry v. Sullivan, 925 F.2d 1127, 1131 (9th

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Cir.1990)]). Any such error is harmless because the finding regarding light work is not essential

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to the final disability determination. See, e.g., Aichele v. Astrue, 2010 WL 1849009 *10 (E.D.

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Wash. April 30, 2010); Reams v. Astrue, 2010 WL 1270172 *3 (E.D.N.Y. Mar. 31, 2010); Jones

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v. Astrue, 2010 WL 2326261 *10, n.1 (D.R.I. Feb. 19, 2010).

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Notably too, the VE testified that only about fifty percent of the light work world would

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be precluded by Plaintiff’s limitations under the first hypothetical. AR 39-40. The VE explained

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that the three positions he identified were “representative” only because it would be difficult to

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“state which jobs, even job titles, [would] be limited.” AR 39-40.

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Finally, Plaintiff has not argued that she could not perform sedentary work, or that the

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entire world of sedentary work fails to meet the minimum number of jobs necessary to constitute

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a significant number within the meaning of the Social Security Act. Barker v. Secretary of

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Health & Human Servs., 882 F.2d 1474, 1478 (9th Cir. 1989); see also Moncada v. Chater, 60

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F.3d 521, 524 (9th Cir. 1995); Martinez v. Heckler, 807 F.2d 771, 775 (9th Cir. 1986).

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CONCLUSION

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Based on the foregoing, the Court finds that the ALJ’s decision is supported by

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substantial evidence in the record as a whole and is based on proper legal standards.

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Accordingly, this Court DENIES Plaintiff’s appeal from the administrative decision of the

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Commissioner of Social Security. The Clerk of this Court is DIRECTED to enter judgment in

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favor of Defendant Michael J. Astrue, Commissioner of Social Security and against Plaintiff,

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Kelli L. Blanchet.

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IT IS SO ORDERED.

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Dated:
6i0kij

June 20, 2011

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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