Montoya v. Commissioner of Social Security

Filing 19

ORDER signed by Magistrate Judge Carolyn K. Delaney on 1/16/2014 ORDERING that Plaintiff's 16 Motion for Summary Judgment is DENIED. The Commissioner's 17 Cross-Motion for Summary Judgment is GRANTED. Judgment is entered for the Commissioner. CASE CLOSED. (Zignago, K.)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LYDIA LINDA MONTOYA, 12 Plaintiff, 13 14 15 No. 2:12-cv-02483 CKD v. ORDER CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. 16 17 18 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 19 (“Commissioner”) denying an application for Supplemental Security Income (“SSI”) under Title 20 XVI of the Social Security Act (“Act”). For the reasons discussed below, the court will deny 21 plaintiff‟s motion for summary judgment and grant the Commissioner‟s cross-motion for 22 summary judgment. 23 BACKGROUND Plaintiff, born May 29, 1963, applied for SSI benefits on January 7, 2008, alleging 24 25 disability beginning September 1, 2006. Administrative Transcript (“AT”) 54, 79. Plaintiff 26 alleged she was unable to work due to back problems, depression, and auto accident injuries. AT 27 ///// 28 ///// 1 1 78. In a decision dated August 20, 2010, the ALJ determined that plaintiff was not disabled.1 AT 2 15-22. The ALJ made the following findings (citations to 20 C.F.R. omitted): 3 1. The claimant has not engaged in substantial gainful activity since January 7, 2008, the application date. 4 2. The claimant has the following severe impairments: neck and back pain. 5 6 7 3. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. 8 ///// 9 ///// 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 Disability Insurance Benefits are paid to disabled persons who have contributed to the Social Security program, 42 U.S.C. § 401 et seq. Supplemental Security Income is paid to disabled persons with low income. 42 U.S.C. § 1382 et seq. Both provisions define disability, in part, as an “inability to engage in any substantial gainful activity” due to “a medically determinable physical or mental impairment. . . .” 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). A parallel five-step sequential evaluation governs eligibility for benefits under both programs. See 20 C.F.R. §§ 404.1520, 404.1571-76, 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S. Ct. 2287 (1987). The following summarizes the sequential evaluation: Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a “severe” impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant‟s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App.1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 26 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). 27 The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Bowen, 482 U.S. at 146 n.5, 107 S. Ct. at 2294 n.5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id. 2 28 1 4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform medium work as defined in 20 CFR 416.967(c). 2 3 5. The claimant is capable of performing past relevant work as a clerk, cashier, and meter reader. This work does not require the performance of work-related activities precluded by the claimant‟s residual functional capacity. 4 5 6. The claimant has not been under a disability, as defined in the Social Security Act, since January 7, 2008, the date the application was filed. 6 7 8 AT 27-22. 9 ISSUES PRESENTED Plaintiff argues that the ALJ committed the following errors in finding plaintiff not 10 11 disabled: (1) the ALJ improperly classified plaintiff‟s past work as “past relevant work”; (2) the 12 ALJ erred in failing to consider or properly analyze plaintiff‟s limitations caused by obesity, 13 moderate obstructive sleep apnea, and moderate difficulties in concentration, persistence, and 14 pace; and, (3) the ALJ improperly rejected the opinions of treating physician Dr. Colleen Aitken 15 and state agency medical consultant Dr. James V. Glaser. 16 LEGAL STANDARDS The court reviews the Commissioner‟s decision to determine whether (1) it is based on 17 18 proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record 19 as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir.1999). Substantial 20 evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 21 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means “such relevant evidence as a reasonable 22 mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th 23 Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “The ALJ is 24 responsible for determining credibility, resolving conflicts in medical testimony, and resolving 25 ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). 26 “The court will uphold the ALJ‟s conclusion when the evidence is susceptible to more than one 27 rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). 28 ///// 3 1 The record as a whole must be considered, Howard v. Heckler, 782 F.2d 1484, 1487 (9th 2 Cir. 1986), and both the evidence that supports and the evidence that detracts from the ALJ‟s 3 conclusion weighed. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not 4 affirm the ALJ‟s decision simply by isolating a specific quantum of supporting evidence. Id.; see 5 also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the 6 administrative findings, or if there is conflicting evidence supporting a finding of either disability 7 or nondisability, the finding of the ALJ is conclusive, see Sprague v. Bowen, 812 F.2d 1226, 8 1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied in 9 weighing the evidence. See Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). 10 ANALYSIS 11 A. Past Relevant Work 12 Plaintiff first contends that the ALJ committed error in finding that she could perform her 13 past relevant work as a clerk, cashier, and meter reader because plaintiff‟s past work was not 14 “relevant” within the meaning of the regulations. Plaintiff bears the burden of showing she does 15 not have the residual functional capacity (“RFC”) to engage in “past relevant work.” 20 C.F.R. 16 §§ 416.960, 416.965. A job qualifies as past relevant work only if it involved substantial gainful 17 activity. Lewis v. Apfel, 236 F.3d 503, 515 (9th Cir. 2001). “Earnings can be a presumptive, but 18 not conclusive, sign of whether a job is substantial gainful activity. Monthly earnings averaging 19 less than [the monthly amount set forth in 20 C.F.R. § 416.974(b) for the relevant time period] 20 generally show that a claimant has not engaged in substantial gainful activity. . . . With the 21 presumption, the claimant has carried his or her burden unless the ALJ points to substantial 22 evidence, aside from earnings, that the claimant has engaged in substantial gainful activity.” Id. 23 Plaintiff makes various arguments concerning the ALJ‟s finding that she could perform 24 her past relevant work. Most notably, however, is plaintiff‟s argument that her earnings during 25 the relevant time period are below the substantial gainful activity amount. In fact, the record 26 shows that plaintiff only earned $8,127 in 2005 and $8,931 in 2006. AT 77. In these years, the 27 monthly substantial gainful activity amount under the regulations for a non-blind individual was 28 $830 and $860, respectfully. Substantial Gainful Activity, Monthly substantial gainful activity 4 1 amounts by disability type, Social Security Administration (Dec. 2, 2013), 2 Plaintiff‟s average monthly earnings during 2005 and 2006 3 were below the corresponding monthly substantial gainful activity amounts. Thus, the ALJ was 4 required to point to substantial evidence in order to establish that plaintiff‟s past work involved 5 substantial gainful activity. 6 Defendant notes that although plaintiff‟s earnings in her past work do not appear to be 7 presumptively substantial, that does not necessarily mean that the work was not substantial 8 gainful activity. Consequently, defendant argues, this issue does not raise a reversible issue. 9 Defendant fails to set forth any argument concerning the ALJ‟s duty to point to substantial 10 evidence that the claimant has engaged in substantial gainful activity. The ALJ merely stated that 11 he found plaintiff has past relevant work as a clerk, cashier, and meter reader “[a]fter reviewing 12 the documentary record and hearing [plaintiff‟s] detailed explanation of her past relevant work.” 13 AT 21. Therefore, the ALJ‟s finding is not supported by substantial evidence. 14 In this case, however, the ALJ made an alternative finding at step five that, based on the 15 grids, there would be work plaintiff could perform. If there is no error in the alternative finding, 16 the error in the ALJ‟s finding that plaintiff had past relevant work that she could perform would 17 be harmless. Thus, whether remand is necessary will be determined by the validity of the ALJ‟s 18 alternative finding, which will be discussed in section C.2, infra. 19 B. Limitations 20 Plaintiff argues that the ALJ failed to meaningfully analyze the limiting effects of her 21 obesity, moderate obstructive sleep apnea, and moderate limitations in concentration, persistence, 22 and pace on her ability to work. Upon assessing plaintiff‟s limitations, the ALJ found that she 23 complained of depression and sleep problems, that plaintiff‟s allegations are not credible, and that 24 her obesity does not significantly impact her impairments or decrease her ability to function. AT 25 18-20. In reasoning that plaintiff‟s allegations were not credible, the ALJ cited to her activities of 26 daily living: that she is able to prepare her own meals, do household chores without assistance, 27 drive her car and shop independently, go to church, and play with her grandchildren. AT 20. In 28 making his findings, the ALJ gave significant weight to the opinion of Dr. Fariba Vesali, which 5 1 was issued on May 28, 2010, after an independent examination and a review of plaintiff‟s 2 records. AT 300. Dr. Vesali concluded that plaintiff could do medium exertional work with no 3 nonexertional limitations. AT 20, 301. The ALJ also gave significant weight to the opinion of 4 psychiatrist Dr. Manolito Castilla, in which it was found that plaintiff had no significant mental 5 limitations. AT 20, 311. 6 1. Obesity 7 Obesity was eliminated from the Listing of Impairments (Listing 9.09) because the Social 8 Security Administration determined that the criteria in the Obesity Listing did “not represent a 9 degree of functional limitation that would prevent an individual from engaging in any gainful 10 activity.” Social Security Ruling (SSR) 02-01p (2002). Obesity remains, however, a factor that 11 may be considered at any step in the sequential evaluation. Id. “Obesity in combination with 12 other impairments may or may not increase the severity or functional limitations of the other 13 impairment.” Id. Here, the ALJ assessed plaintiff‟s activities of daily living and then found that 14 her obesity does not significantly impact her other impairments or decrease her ability to function. 15 AT 20. 16 Plaintiff argues that this analysis was insufficient because the ALJ did not discuss her 17 “morbid obesity” in detail, including her need for gastric bypass surgery on March 2, 2010. ECF 18 No. 16-1, 17-18. Plaintiff also asserts that the ALJ failed to address the combined effect of her 19 obesity on her other impairments. Defendant argues that the limiting effects of obesity need to be 20 established by substantial evidence, which is not contained in the record. ECF No. 17, 17-18. 21 The ALJ found that plaintiff was obese and presented substantial evidence – plaintiff‟s 22 activities of daily living and Dr. Vesali‟s opinion indicating no nonexertional limitations – in 23 finding that her obesity does not significantly impact her other impairments. Plaintiff has 24 provided no evidence to the contrary. The fact that she had gastric bypass surgery merely affirms 25 that she was obese, but does not provide substantial evidence that her obesity adversely impacts 26 her functional limitations. Also, the fact that Dr. Vesali assigned no limitations to plaintiff after 27 her surgery indicates that neither her obesity nor the surgery impacts her ability to function. 28 Thus, there is substantial evidence supporting the ALJ‟s finding and plaintiff‟s contention that the 6 1 2 3 ALJ failed to analyze or properly analyze the limiting effects of her obesity is without merit. 2. Sleep Apnea At the hearing, plaintiff testified that she has sleeping problems. AT 403-05. On 4 September 29, 2009, plaintiff was diagnosed with moderate obstructive sleep apnea. AT 382. 5 Plaintiff argues that the ALJ did not meaningfully discuss the diagnosis although the plaintiff 6 testified that her exhaustion and sleepiness make it hard to function. Defendant argues that a 7 diagnosis alone does not establish the severity of a condition or its limiting effects. Again, 8 plaintiff provides no objective evidence of limitations caused by her sleep apnea outside of her 9 own testimony, which was assessed by the ALJ. The ALJ found plaintiff‟s allegations to be not 10 credible, a decision he supported by discussing plaintiff‟s activities of daily living and Dr. 11 Vesali‟s findings, which were also made after plaintiff‟s moderate obstructive sleep apnea 12 diagnosis. These aspects of the record discussed by the ALJ constitute substantial evidence 13 supporting the finding. Again, plaintiff‟s contention that the ALJ failed to analyze or properly 14 analyze the limiting effects of her sleep apnea is without merit. 15 3. Moderate Impairment of Concentration, Persistence, and Pace 16 At step three, the ALJ found that plaintiff has moderate difficulties in maintaining 17 concentration, persistence, or pace. AT 18. Plaintiff argues that this limitation should have been 18 discussed in the ALJ‟s RFC assessment. The plaintiff also asserts that the ALJ‟s opinion is 19 internally inconsistent because the ALJ found that plaintiff does not suffer from a severe mental 20 impairment. Defendant argues that the ALJ‟s findings in applying the special technique do not 21 warrant any particular limitations in the RFC assessment. Defendant also points out that the ALJ 22 assessed the medical opinions which indicate no mental restrictions. 23 The ALJ‟s findings are not inconsistent as claimed by plaintiff. The findings with respect 24 to “moderate” deficiencies as set forth in the body of the decision were conducted in the context 25 of the general evaluation of mental impairment required under 20 C.F.R. § 416.920a(c). See SSR 26 96-8p (limitations identified under paragraph “B” criteria are not residual functional capacity 27 assessment). In assessing plaintiff‟s RFC, the ALJ discussed the opinion of psychiatrist Dr. 28 Manolito Castillo, in which it was found that plaintiff had no significant mental limitations. AT 7 1 20. Thus, the ALJ properly assessed plaintiff‟s mental limitations and his finding was based on 2 substantial evidence. 3 C. Medical Opinions 4 Plaintiff contends the ALJ committed error in failing to accord the appropriate weight to 5 treating physician Dr. Aitken‟s opinion. ECF No. 16-1, 19. Plaintiff also asserts that the ALJ 6 failed to explain his reasons for not crediting the opinion of state agency medical consultant Dr. 7 Glaser.2 Id. at 14. The weight given to medical opinions depends, in part, on whether they are 8 proffered by treating, examining, or non-examining professionals. Lester v. Chater, 81 F.3d 821, 9 830 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating professional, 10 who has a greater opportunity to know and observe the patient as an individual. Id.; Smolen, 80 11 F.3d at 1285. 12 To evaluate whether an ALJ properly rejected a medical opinion, in addition to 13 considering its source, the court considers whether (1) contradictory opinions are in the record, 14 and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a 15 treating or examining medical professional only for “clear and convincing” reasons. Lester, 81 16 F.3d at 831. In contrast, a contradicted opinion of a treating or examining professional may be 17 rejected for “specific and legitimate” reasons that are supported by substantial evidence. Id. at 18 830. While a treating professional‟s opinion generally is accorded superior weight, if it is 19 contradicted by a supported examining professional‟s opinion (e.g., supported by different 20 independent clinical findings), the ALJ may resolve the conflict. Andrews v. Shalala, 53 F.3d 21 1035, 1041 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). In 22 any event, the ALJ need not give weight to conclusory opinions supported by minimal clinical 23 findings. Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir.1999) (treating physician‟s conclusory, 24 minimally supported opinion rejected); see also Magallanes, 881 F.2d at 751. The opinion of a 25 2 26 27 28 Plaintiff asserts that “the ALJ failed to discuss or explain his reasons for not crediting the opinions of multiple state agency medical experts.” ECF No. 16-1, 15. However, plaintiff only discusses Dr. Glasser‟s March 13, 2008 opinion, which was stamped as “affirmed as written” by Dr. Ian Ocrant on October 29, 2008. Id.; AT 216. This affirmation does not constitute a separate opinion, but instead may serve to validate the underlying opinion. 8 1 non-examining professional, without other evidence, is insufficient to reject the opinion of a 2 treating or examining professional. Lester, 81 F.3d at 831. 3 4 1. Dr. Aitken Plaintiff argues that the ALJ failed to provide specific and legitimate reasons for failing to 5 credit Dr. Aitken‟s March 9, 2007 opinion. ECF No. 16-1, 19; AT 157. In this opinion, Dr. 6 Aitken noted that plaintiff should be placed on work restrictions of no lifting, is required the 7 ability to get up and stretch for 15 minutes, and could not stand for longer than 30 minutes. Id. 8 The ALJ assigned little weight to this opinion because it was “rendered almost 9 months prior to 9 the alleged onset date,” is not substantiated by clinical findings or diagnostic studies of record, 10 11 and is inconsistent with the findings of Dr. Vesali. AT 20. Plaintiff correctly points out that the ALJ erred in stating that Dr. Aitken‟s opinion was 12 rendered nine months prior to the alleged onset date, which is September 1, 2006. Defendant 13 argues that this error is harmless because for SSI claims the relevant time period is during the 14 adjudicative period, which is after the application date. Also, defendant asserts that plaintiff was 15 still working temporarily when Dr. Aitken issued her opinion, which tends to show that both 16 plaintiff and Dr. Aitken believed plaintiff could work with restrictions at that time. Moreover, 17 defendant argues that there is no evidence that Dr. Aitken‟s limitations would have been expected 18 to last, unmodified, for the mandatory 12 month period because plaintiff‟s motor vehicle accident 19 was in January 2007, three months before Dr. Aitken‟s opinion. These points were not relied on 20 by the ALJ, and thus are immaterial to whether the ALJ properly rejected Dr. Aitken‟s opinion. 21 Defendant‟s primary arguments regarding this issue are that Dr. Aitken‟s opinion is not 22 supported by the record, including her own treatment notes, and that the ALJ properly relied on 23 the Dr. Vesali‟s opinion. 24 Defendant points out that plaintiff failed to cite to any medical evidence consistent with 25 Dr. Aitken‟s assessment. Moreover, defendant notes that there were no subsequent records from 26 Dr. Aitken or any other physician at Golden Valley Health Center indicating that plaintiff had 27 difficulty with walking or standing. In response, plaintiff merely states that “Dr. Aitkens‟ (sic) 28 records were extremely detailed and are contained throughout the administrative record,” but 9 1 plaintiff fails to show any evidence in the administrative record supporting the limitations given 2 by Dr. Aitken in the opinion plaintiff seeks to be credited. ECF No. 18, 9. 3 Defendant also argues that the ALJ permissibly relied on Dr. Vesali‟s May 28, 2010 4 opinion. Defendant asserts that Dr. Vesali‟s findings constitute substantial evidence on which the 5 ALJ may rely because they are based on objective medical evidence that Dr. Aitken did not 6 consider. See Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). Plaintiff merely argues that the 7 ALJ‟s rationale in discrediting the opinion of a long-time treating doctor in favor of a one-time 8 examining doctor is inadequate and does not constitute a specific and legitimate reason. 9 This Court agrees with defendant that the ALJ‟s misstatement regarding the alleged onset 10 date is harmless to the issue of whether the ALJ failed to accord the appropriate weight to Dr. 11 Aitken‟s opinion. What is relevant, however, is that the ALJ found that Dr. Aitken‟s opinion is 12 not supported by the record and is contradicted by Dr. Vesali‟s opinion, which constitutes 13 substantial evidence. These qualify as specific and legitimate reasons that are supported by 14 substantial evidence, and thus the ALJ did not error in assessing Dr. Aitken‟s opinion. 15 2. Dr. Glaser 16 Plaintiff argues that the ALJ erred by failing to address and explain his reasons for not 17 crediting Dr. Glaser‟s opinion. In this March 13, 2008 opinion, Dr. Glaser noted that plaintiff 18 could occasionally lift and/or carry 50 pounds, frequently lift and/or carry 25 pounds, stand 19 and/or walk about 6 hours in an 8-hour workday, sit for a total of about 6 hours in an 8 hour 20 workday, and push and/or pull without limitations other than those for lifting and carrying. AT 21 210. Dr. Glaser also noted that plaintiff could frequently climb ramps, climb stairs, balance, 22 kneel, and crawl while occasionally climb ladders, climb ropes, climb scaffolds, stoop, and 23 crouch. AT 211. Lastly, Dr. Glaser noted that plaintiff was limited in her ability to reach in all 24 directions, including overhead. AT 212. 25 Defendant claims that any error resulting from the ALJ‟s failure to specifically cite to Dr. 26 Glaser‟s opinion was harmless. Defendant asserts that the occasional stooping limitation, if 27 credited, would leave plaintiff‟s sedentary and light occupational base virtually intact. As for the 28 alleged overhead reaching limitation, defendant asserts that plaintiff cites no authority indicating 10 1 that such limitation would be sufficiently severe to preclude applications of the grids. Plaintiff 2 argues that these limitations would limit plaintiff‟s ability to perform the full range of medium 3 work and that vocational testimony would have been required had the ALJ included these 4 limitations in plaintiff‟s RFC. The issue of whether or not the ALJ‟s failure to specifically cite to Dr. Glaser‟s opinion 5 6 was harmless turns on whether or not the opinion would have impacted the ALJ‟s ultimate 7 disability determination. Thus, it must be determined whether crediting the limitations in Dr. 8 Glaser‟s opinion would alter the ALJ‟s alternative finding at step five that, based on the grids, 9 there would be work plaintiff could perform. 10 The grids categorize jobs by their physical-exertional requirements (e.g., sedentary, light 11 and medium) and present various combinations of factors the ALJ must consider in determining 12 the availability of work that the claimant can perform. See 20 C.F.R. pt. 404, subpt. P, App. 2; 13 see generally Desrosiers v. Sec. of Health and Human Services, 846 F.2d 573, 577-78 (9th Cir. 14 1988). The factors include the claimant‟s RFC, age, education, and work experience. Id. For 15 each combination, the grids direct a finding of either “disabled” or “not disabled.” Id. 16 Because the grids are merely an administrative tool to resolve individual claims that fall 17 into standardized patterns, there are limits on when the ALJ may rely on them. “[T]he ALJ may 18 apply [the grids] in lieu of taking the testimony of a vocational expert only when the grids 19 accurately and completely describe the claimant‟s abilities and limitations.” See Jones, 760 F.2d 20 at 998, Desrosiers, 846 F.2d at 578; see also Heckler v. Campbell, 461 U.S. 458, 462 n.5, 103 S. 21 Ct. 1952, 1955 n.5 (1983). The ALJ may also rely on the grids, however, even when a claimant 22 has combined exertional and nonexertional limitations, if the nonexertional limitations are not so 23 significant as to impact the claimant‟s exertional capabilities.3 Bates v. Sullivan, 894 F.2d 1059, 24 3 25 26 27 28 Exertional capabilities are the “primary strength activities” of sitting, standing, walking, lifting, carrying, pushing, or pulling. 20 C.F.R. § 416.969a (b) (2003); SSR 83-10, Glossary; compare Cooper v. Sullivan, 880 F.2d 1152, 1155 n. 6 (9th Cir.1989). Nonexertional activities include mental, sensory, postural, manipulative and environmental matters that do not directly affect the primary strength activities. 20 C.F.R. § 416.969a(c)(2003); SSR 83-10, Glossary; Cooper, 880 F.2d at 1155 & n. 7 (citing 20 C.F.R. pt. 404, subpt. P, app. 2, § 200.00(e)). “If a claimant has an impairment that limits his or her ability 11 1 1063 (9th Cir. 1990), overruled on other grounds, Bunnell, 947 F.2d at 345-47; Polny v. Bowen, 2 864 F.2d 661, 663-64 (9th Cir. 1988); see also Odle v. Heckler, 707 F.2d 439, 440 (9th Cir. 1983) 3 (requiring significant nonexertional impairments in order to depart from the grids); Penny v. 4 Sullivan, 2 F.3d 953, 958-59 (9th Cir. 1993) (only severe limitations on the claimant‟s functional 5 capacities in ways not contemplated by the grids requires vocational expert testimony). In 6 borderline cases, the ALJ must not apply the grids mechanically. Jones, 760 F.2d at 998. 7 Defendant argues that Dr. Glaser‟s limitations are neither significant nor sufficiently 8 severe to preclude application of the grids. Defendant is correct in contending that plaintiff‟s 9 light and sedentary work bases would not be significantly affected by the non-exertional stooping 10 limitation in Dr. Glaser‟s opinion. See SSR 83-14 (most light work “implies that the worker is 11 able to do occasional bending of the stooping type); see also SSR 85-15 (the sedentary and light 12 occupational base is virtually intact when a person can occasionally stoop in order to lift objects). 13 Also, while SSR 83-10 and 83-14 hold that light work typically requires the use of arms and 14 hands to grasp, hold, and turn objects, these rulings do not state that restrictions on occasional 15 overhead reaching would impact a person‟s occupational base. 16 Because the limitations contained in Dr. Glaser‟s opinion do not significantly affect 17 plaintiff‟s light or sedentary occupational base they are not sufficient to preclude application of 18 the grids, requiring vocational expert testimony. Therefore, any error resulting from the ALJ‟s 19 failure to specifically cite to Dr. Glaser‟s opinion was harmless. See Molina v. Astrue, 674 F.3d 20 1104, 1115 (9th Cir. 2012) (“we have adhered to the general principle that an ALJ‟s error is 21 harmless where it is „inconsequential to the ultimate nondisability determination‟”) (quoting Stout 22 v. Comm‟r, 454 F.3d 1050, 1055 (9th Cir. 2006)). Also, because the ALJ‟s alternative finding at 23 step five is upheld, the ALJ‟s failure to support his decision that plaintiff has past relevant work 24 with substantial evidence is harmless as it does not affect the ultimate nondisability 25 determination. 26 27 28 to work without directly affecting his or her strength, the claimant is said to have nonexertional (not strength-related) limitations that are not covered by the grids.” Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993) (citing 20 C.F.R., pt. 404, subpt. P, app. 2 § 200.00(d), (e)). 12 1 CONCLUSION 2 For the reasons stated herein, IT IS HEREBY ORDERED that: 3 1. Plaintiff‟s motion for summary judgment (ECF No. 16) is denied; 4 2. The Commissioner‟s cross-motion for summary judgment (ECF No. 17) is granted; 5 6 7 and, 3. Judgment is entered for the Commissioner. Dated: January 16, 2014 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 8 9 10 11 33/4 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13

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