Thatcher v. Commissioner of Social Security

Filing 13

ORDER signed by Magistrate Judge Edmund F. Brennan on 3/16/2015. Plaintiff's 11 Motion for Summary Judgment is DENIED and Commissioner's 12 Cross-Motion for Summary Judgment is GRANTED. Clerk directed to enter Judgment in defendant's favor. (Marciel, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JACK RICHARD THATCHER, JR.,

No. 2:13-cv-2240-EFB

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Plaintiff,
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v.

ORDER

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CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security

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(“Commissioner”) denying his application for a period of disability and Disability Insurance

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Benefits (“DIB”) under Title II of the Social Security Act. The parties’ cross-motions for

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summary judgment are pending. For the reasons that follow, plaintiff’s motion is denied and

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defendant’s motion grant is granted.

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I.

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BACKGROUND
Plaintiff filed an application for a period of disability and DIB on October 18, 2010,

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alleging that he had been disabled since August 31, 2010. Administrative Record (“AR”) 69.

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Plaintiff’s application was denied initially and upon reconsideration. Id. at 74-78, 81-85. On

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April 18, 2012, a hearing was held before administrative law judge (“ALJ”) Peter F. Belli. Id. at

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36-68. Plaintiff was represented by counsel at the hearing, at which he and a vocation expert

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(“VE”) testified. Id.
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On May 25, 2012, the ALJ issued a decision finding that plaintiff was not disabled under
sections 216(i) and 223(d) of the Act.1 Id. at 12-24. The ALJ made the following specific
findings:

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1. The claimant meets the insured status requirements of the Social Security Act
through December 31, 2015.
2. The claimant has not engaged in substantial gainful activity since August 31, 2010,
the date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: mild right carpal tunnel
syndrome, mild right ulnar sensory neuropathy at wrist, cervical spondylosis,
depression, anxiety, asthma, and fibromyalgia (20 CFR 404.1520(c)).

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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 (“SSI”) is paid
to disabled persons with low income. 42 U.S.C. §§ 1382 et seq. Under both provisions,
disability is defined, 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 five-step sequential evaluation governs eligibility for benefits. See 20 C.F.R.
§§ 423(d)(1)(a), 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-42 (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.

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Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).

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The claimant bears the burden of proof in the first four steps of the sequential evaluation
process. Yuckert, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential
evaluation process proceeds to step five. Id.
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***
4. 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 (20 CFR 404.1520(d), 404.1525, 404.156).

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***
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5. After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined in 20
CFR 404.1567(b) except that the claimant could lift/carry occasionally 20 pounds
and frequently 10 pounds. He could sit eight hours in an eight-hour workday with
normal breaks. He could stand/walk six hours in an eight-hour workday with
normal breaks and no prolonged standing for about 30-45 minutes at a time. He
should never climb ladders, ropes, or scaffolds or crawl. He could occasional [sic]
stoop, kneel, and crouch. He could occasionally work overhead with upper
extremities. He could frequently, but not constantly handle and feel. He should
avoid concentrated exposure to respiratory irritants. He has no limitations on his
ability to receive, understand, remember, and carryout simple job instructions. He
could occasionally understand, remember, and carryout detailed job instructions.
He has no limitations on the ability to adjust to workplace changes or in his ability
to interact with coworkers and supervisors. He is limited to occasional exposure to
the public.
***
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
***
7. The claimant was born on December 8, 1964 and was 45 years old, which is
defined as a younger individual age 18-49, on the alleged disability onset date (20
CFR 404.1563).

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8. The claimant has at least a high school education and is able to communicate in
English (20 CFR 404.1564).
9. Transferability of job skills is not an issue in this case because the claimant’s past
relevant work is unskilled (20 CFR 404.1568).
10. Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the national
economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).
***

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11. The claimant has not been under a disability, as defined in the Social Security Act,
from August 31, 2010, through the date of this decision (20 CFR 404.1520(g)).
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Id. at 14-24.
Plaintiff requested that the Appeals Council review the ALJ’s decision, id. at 8,

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and on August 23, 2013, the Appeals Council denied review, leaving the ALJ’s decision

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as the final decision of the Commissioner. Id. at 1-7.

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II.

LEGAL STANDARDS
The Commissioner’s decision that a claimant is not disabled will be upheld if the findings

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of fact are supported by substantial evidence in the record and the proper legal standards were

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applied. Schneider v. Comm’r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000);

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Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel,

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180 F.3d 1094, 1097 (9th Cir. 1999).
The findings of the Commissioner as to any fact, if supported by substantial evidence, are

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conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is

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more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th

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Cir. 1996). “‘It means such evidence as a reasonable mind might accept as adequate to support a

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conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v.

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N.L.R.B., 305 U.S. 197, 229 (1938)).
“The ALJ is responsible for determining credibility, resolving conflicts in medical

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testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.

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2001) (citations omitted). “Where the evidence is susceptible to more than one rational

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interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.”

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Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).

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III.

ANALYSIS
Plaintiff argues that the ALJ erred by (1) failing to pose a hypothetical to the VE that

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accurately reflected plaintiff’s residual functional capacity (“RFC”), and (2) relying on the VE

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testimony to conclude that there are a significant number of jobs that plaintiff can perform. ECF

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No. 11-1 at 6-8.

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A. The ALJ Posed a Hypothetical to the VE That Reflected Plaintiff’s RFC

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Plaintiff contends that the hypothetical the ALJ posed to the VE, and ultimately relied

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upon in determining that plaintiff was not disabled, did not accurately reflect the limitations

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included in the ALJ’s RFC determination. ECF No. 11-1 at 7-8. Specifically, plaintiff contends

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that the ALJ’s hypothetical did not identify any cumulative standing limitations. Id. at 7. He

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contends that the ALJ’s hypothetical only included limitations in the ability to stand for about 30

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to 45 minutes at one time, but did not address the total amount of time plaintiff could stand during

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an entire workday. Id. at 7. This argument is not supported by the record.

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The ALJ specifically concluded that plaintiff was limited to, among other things, standing

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and walking for 6 hours in 8-hour workday, AR 16, a finding which the plaintiff does not

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challenge. In concluding that plaintiff was not disabled, the ALJ relied on the testimony of a VE.

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Id. at 23-24, 57-68. The ALJ posed a single hypothetical question to the VE, which specifically

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requested the VE to consider a hypothetical individual similar to claimant who, among other

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things, “can stand and walk six hours out of an eight-hour day with normal breaks, with no

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prolonged standing, stand about 30 to 45 minutes at a time.” AR 58. Thus, contrary to plaintiff’s

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contentions, the ALJ’s hypothetical specifically including limitations concerning cumulative

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standing tolerance. Accordingly, plaintiff’s argument lacks merit.2

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B. The ALJ Properly Concluded That There Are a Significant Number of Jobs That

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Plaintiff Could Perform

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Plaintiff also argues that the ALJ failed to satisfy his burden at the fifth step of the

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sequential evaluation process of demonstrating that there are a sufficient number of jobs that

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plaintiff could perform given his RFC. ECF No. 11-1 at 6-7.

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In response to the ALJ’s hypothetical question, the VE concluded that a hypothetical
person with plaintiff’s limitations retained the capacity to perform several unskilled jobs,

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In his motion for summary judgment, plaintiff purports to provide the court with the
complete hypothetical the ALJ posed to the VE. However, plaintiff’s version of the hypothetical
question conspicuously omits the key language from the hypothesis on which the question was
predicated: that the individual “can stand and walk six hours out of an eight-hour day with normal
breaks.” Compare ECF No. 11-1 at 7 with AR 58.
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including: (1) surveillance systems monitor, with 80,000 jobs in the national economy, 16,000 in
California, and 30 locally; (2) retail marker, with 425,000 jobs nationally, 25,000 in California,
and 50 locally; and (3) cashier, with 40,000 jobs nationally, 12,000 in California, and 40 locally.
AR 59-60. Plaintiff contends that this testimony does not support the ALJ’s disability finding
because there are an insufficient number of “local or regional” jobs for the three types of work
identified by the VE. ECF No. 11-1 at 6-7.

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Plaintiff’s argument assumes, mistakenly, that the term “local,” which was utilized by the
VE, is synonymous with the term “regional” as the latter term is defined by the relevant
regulations. There is no basis for this assumption.

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An individual is disabled under the Act where his physical or mental impairments
preclude him from engaging in “substantial gainful work which exists in the national economy,
regardless of whether such work exists in the immediate area in which he lives, or whether a
specific job vacancy exists for him, or whether he would be hired if he applied for work.” 42
U.S.C. § 1382c(a)(3)(B). “[W]ork exists in the national economy when it exists in significant
numbers either in the region where the individual lives or in other several regions in the country.”
Gutierrez v. Comm’r Soc. Sec., 740 F.3d 519, 523 (9th Cir. 2014). For purposes of section
1382c(a)(3)(B) “the State of California qualifies as a ‘region.’” Id. at 526.

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While the VE may have testified that there were less than 50 local jobs for each type of
work, he also testified that there were 16,000 surveillance systems monitor jobs, 25,000 retail
marker jobs, and 12,000 cashier jobs in California. This testimony constitutes substantial
evidence supporting the ALJ’s finding that there are a significant number of jobs that plaintiff can
perform. See Gutierrez, 740 F.3d at 528 (affirming “the ALJ’s decision that 2,500 jobs
constituted significant work in the region of California.”).
IV.

CONCLUSION
The ALJ applied the proper legal standard and his decision was supported by substantial

evidence. Therefore, it is hereby ORDERED that:
1. Plaintiff’s motion for summary judgment is denied;

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2. The Commissioner’s cross-motion for summary judgment is granted; and
3. The Clerk is directed to enter judgment in the Commissioner’s favor.
DATED: March 16, 2015.

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