Closson v. Commissioner of Social Security

Filing 23

ORDER signed by Magistrate Judge Kendall J. Newman on 2/5/2015 DENYING 17 Motion for Summary Judgment and GRANTING 22 Cross-Motion for Summary Judgment. CASE CLOSED. (Donati, J)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

ANGELA C. CLOSSON,

12

Plaintiff,

13
14
15

No. 2:13-cv-2381-KJN

v.

ORDER

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

16
17

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

18
19

(“Commissioner”) denying plaintiff’s application for Disability Insurance Benefits (“DIB”) under

20

Title II of the Social Security Act (“Act”).1 After plaintiff filed her opening motion for summary

21

judgment (ECF No. 17), the Commissioner filed an opposition to plaintiff’s motion and a cross-

22

motion for summary judgment (ECF No. 22). No optional reply brief was filed.
For the reasons discussed below, the court DENIES plaintiff’s motion for summary

23
24

judgment, GRANTS the Commissioner’s cross-motion for summary judgment, and enters

25

judgment for the Commissioner.

26
27
28

1

This action was initially referred to the undersigned pursuant to E.D. Cal. L.R. 302(c)(15), and
both parties voluntarily consented to proceed before a United States Magistrate Judge for all
purposes. (ECF Nos. 8, 9.)
1

1

I.

2

BACKGROUND
Plaintiff was born on October 7, 1977, has a high school diploma and a beautician’s

3

license, is able to communicate in English, and previously worked as a management trainee, hair

4

stylist, cosmetologist, and retail manager.2 (Administrative Transcript (“AT”) 32, 44, 54-55.) On

5

October 25, 2010, plaintiff applied for DIB, alleging that she became disabled on October 6,

6

2010, due to a back injury requiring surgery, a slipped disc in plaintiff’s back, left foot tendonitis

7

requiring surgery, and bipolar disorder. (AT 25, 54-55, 107, 117.) On April 11, 2011, the

8

Commissioner determined that plaintiff was not disabled. (AT 25, 56-59.) Upon plaintiff’s

9

request for reconsideration, that determination was affirmed on August 31, 2011. (AT 25, 63-66.)

10

Thereafter, plaintiff requested a hearing before an administrative law judge (“ALJ”), which took

11

place on June 27, 2012, and at which both plaintiff, represented by an attorney, and a vocational

12

expert (“VE”) testified. (AT 25, 41-53.)

13

In a decision dated July 19, 2012, the ALJ determined that plaintiff had not been under a

14

disability, as defined in the Act, from October 6, 2010, plaintiff’s alleged disability onset date,

15

through the date of the ALJ’s decision. (AT 25-34.) The ALJ’s decision became the final

16

decision of the Commissioner when the Appeals Council denied plaintiff’s request for review on

17

September 18, 2013. (AT 1-7.) Thereafter, plaintiff filed this action in federal district court on

18

November 15, 2013, to obtain judicial review of the Commissioner’s final decision. (ECF No. 1.)

19

II.

20

ISSUES PRESENTED
Plaintiff has raised the sole issue of whether the ALJ erroneously determined that plaintiff

21

could perform other work that existed in significant numbers in the national economy.

22

III.

LEGAL STANDARD
The court reviews the Commissioner’s decision to determine whether (1) it is based on

23
24

proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record

25

as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial

26
27
28

2

Because the parties are familiar with the factual background of this case, including plaintiff’s
medical history, the court does not exhaustively relate those facts in this order, except as is
necessary in articulating the court’s decision.
2

1

evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340

2

F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means “such relevant evidence as a reasonable

3

mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th

4

Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “The ALJ is

5

responsible for determining credibility, resolving conflicts in medical testimony, and resolving

6

ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citation omitted). “The

7

court will uphold the ALJ’s conclusion when the evidence is susceptible to more than one rational

8

interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).

9

IV.

DISCUSSION
Summary of the ALJ’s Findings

10

A.

11

The ALJ evaluated plaintiff’s entitlement to DIB pursuant to the Commissioner’s standard

12

five-step analytical framework.3 At the first step, the ALJ concluded that plaintiff had not

13
3

14
15
16
17
18
19

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, 14042 (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.

20
21
22
23

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.

24
25
26
27
28

Step four: Is the claimant capable of performing his past relevant 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.
Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).
3

1

engaged in substantial gainful activity since October 6, 2010, plaintiff’s alleged disability onset

2

date. (AT 27.) At step two, the ALJ determined that plaintiff had the following severe

3

impairments: status post L4-5 fusion and discography, left foot peroneal tendinosis, and morbid

4

obesity. (Id.) However, at step three, the ALJ determined that plaintiff did not have an

5

impairment or combination of impairments that met or medically equaled the severity of an

6

impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (AT 29.) Before proceeding to

7

step four, the ALJ assessed plaintiff’s residual functional capacity (“RFC”), concluding that

8

plaintiff was capable of performing sedentary work as defined in 20 C.F.R. § 404.1567(a). (Id.)

9

At step four, the ALJ found that plaintiff was unable to perform any past relevant work. (AT 32.)

10

Finally, at step five, the ALJ determined, based on the VE’s testimony, that considering plaintiff’s

11

age, education, work experience and RFC, there were jobs that existed in significant numbers in

12

the national economy that plaintiff could perform. (AT 32-33.)

13

Accordingly, the ALJ concluded that plaintiff had not been under a disability, as defined

14

in the Act, from October 6, 2010, plaintiff’s alleged disability onset date, through the date of the

15

ALJ’s decision. (AT 33.)
Plaintiff’s Substantive Challenges to the Commissioner’s Determinations

16

B.

17

Plaintiff’s sole contention in this appeal is that the ALJ erroneously determined, based on

18

the VE’s testimony, that plaintiff could perform other work that existed in significant numbers in

19

the national economy. More specifically, plaintiff argues that the VE’s testimony was deficient

20

and based on faulty statistics. However, the court need not reach the merits of plaintiff’s

21

argument here. Even assuming, without deciding, that the VE’s testimony was somehow

22

deficient, the ALJ’s reliance on such testimony was harmless error, because the Commissioner’s

23

Medical-Vocational Guidelines, also known as the “Grids,” direct a finding that plaintiff was not

24

disabled during the period under review. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012)

25

(“we may not reverse an ALJ’s decision on account of an error that is harmless”).

26
27
28

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. The Commissioner bears the burden if the sequential
evaluation process proceeds to step five. Id.
4

1

The Grids take administrative notice of the numbers of unskilled jobs that exist

2

throughout the national economy at various functional levels. See 20 C.F.R. Part 404, Subpart P,

3

Appendix 2, § 200.00(b). “When the grids match the claimant’s qualifications, the guidelines

4

direct a conclusion as to whether work exists that the claimant could perform.” Hoopai v. Astrue,

5

499 F.3d 1071, 1075 (9th Cir. 2007). “[T]he grids are inapplicable when a claimant’s non-

6

exertional limitations are sufficiently severe so as to significantly limit the range of work

7

permitted by the claimant’s exertional limitations.” Id. In such instances, the testimony of a

8

vocational expert is required. Id.

9

In this case, the ALJ did not find any additional limitations—exertional or non-

10

exertional—beyond the limitation to sedentary work, and plaintiff has not challenged the ALJ’s

11

RFC assessment before this court. Pursuant to the Grids, a claimant with plaintiff’s profile (a

12

younger individual age 18-44, who has at least a high school education and can perform sedentary

13

work) is deemed not disabled, even where the claimant has only unskilled work experience, or

14

skilled work experience with no transferable skills, or no previous work experience. See 20

15

C.F.R. Part 404, Subpart P, Appendix 2, Rules 201.27 & 201.28. Thus, any reliance on allegedly

16

deficient, unnecessary vocational expert testimony was harmless error.

17

V.

CONCLUSION

18

Accordingly, for the reasons outlined above, IT IS HEREBY ORDERED that:

19

1. Plaintiff’s motion for summary judgment (ECF No. 17) is DENIED.

20

2. The Commissioner’s cross-motion for summary judgment (ECF No. 22) is

21

GRANTED.

22

3. Judgment is entered for the Commissioner.

23

4. The Clerk of Court shall close this case.

24

IT IS SO ORDERED.

25

Dated: February 5, 2015

26
27
28
5