Pittman v. Commissioner of Social Security

Filing 19

ORDER signed by Magistrate Judge Carolyn K. Delaney on 4/15/2016 DENYING 13 Motion for Summary Judgment; GRANTING 14 Cross-Motion for Summary Judgment. CASE CLOSED. (Michel, G.)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

ALAN PITTMAN,

12

Plaintiff,

13
14
15

No. 2:15-cv-0819 CKD

v.

ORDER

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

16
17

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

18
19

(“Commissioner”) denying applications for Disability Income Benefits (“DIB”) and

20

Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act

21

(“Act”), respectively. For the reasons discussed below, the court will deny plaintiff’s motion for

22

summary judgment and grant the Commissioner’s cross-motion for summary judgment.1

23

BACKGROUND
Plaintiff, born February 24, 1960, applied on February 1, 2012 for DIB and SSI, alleging

24
25

disability beginning November 12, 2008. Administrative Transcript (“AT”) 133-141. Plaintiff

26

alleged he was unable to work due to problems with his back and left knee. AT 154. In a

27
28

1

The parties have consented to the jurisdiction of a United States Magistrate Judge in accordance
with the provisions of Title 28, U.S.C. Sec. 636(c)(1). ECF Nos. 7 and 9.
1

1

decision dated September 20, 2013, the ALJ determined that plaintiff was not disabled.2 AT 12-

2

22. The ALJ made the following findings (citations to 20 C.F.R. omitted):

3

1. The claimant meets the insured status requirements of the Social
Security Act through December 31, 2012.

4

2. The claimant has not engaged in substantial gainful activity
since November 12, 2008, the alleged onset date.

5
6

3. The claimant has the following severe impairments: a cortical
defect of the left knee, degenerative disc disease of the lumbar
spine with minimal scoliosis, and a dysthymic disorder.

7
8

4. The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

2

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

5. After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform less than a full range of light work as defined in [the
regulations], except the claimant can lift and/or carry 20 pounds
occasionally, 10 pounds frequently and sit, stand or walk for 6
hours in an 8-hour workday. The claimant is able to climb, balance,
stoop, kneel, crouch and crawl occasionally. In addition, he is able
to perform simple one to two step tasks.

2
3
4
5

6. The claimant is unable to perform any past relevant work.
6
7. The claimant was born on February 24, 1960 and was 48 years
old, which is defined as a younger individual age 18-49, on the
alleged disability onset date. The claimant subsequently changed
age category to closely approaching advanced age.

7
8
9

8. The claimant has a limited education and is able to communicate
in English.

10
9. Transferability of job skills is not material to the determination
of disability using the Medical Vocational Rules as a framework
supports a finding that the claimant is “not disabled,” whether or
not the claimant has transferable jobs skills.

11
12

9. 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.

13
14
15

10. The claimant has not been under a disability, as defined in the
Social Security Act, from November 12, 2008, through the date of
this decision.

16
17

AT 14-21.

18

ISSUES PRESENTED

19

Plaintiff’s sole argument is that the ALJ committed prejudicial error in finding plaintiff

20

not disabled at step five based on the vocational expert’s (“VE”) testimony that plaintiff could

21

perform the representative occupations of mail clerk, ticket taker, and cleaner/housekeeper

22

because the hypotheticals the ALJ posed to the VE did not contain all of the functional limitations

23

contained in the ALJ’s residual functional capacity (“RFC”) determination.

24

LEGAL STANDARDS

25

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

26

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

27

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

28

evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340
3

1

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

2

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

3

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

4

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

5

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

6

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

7

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

8
9

The record as a whole must be considered, Howard v. Heckler, 782 F.2d 1484, 1487 (9th
Cir. 1986), and both the evidence that supports and the evidence that detracts from the ALJ’s

10

conclusion weighed. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not

11

affirm the ALJ’s decision simply by isolating a specific quantum of supporting evidence. Id.; see

12

also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the

13

administrative findings, or if there is conflicting evidence supporting a finding of either disability

14

or nondisability, the finding of the ALJ is conclusive, see Sprague v. Bowen, 812 F.2d 1226,

15

1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied in

16

weighing the evidence. See Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).

17

ANALYSIS

18
19

A. The ALJ did not Commit a Prejudicial Error in Finding Plaintiff not Disabled at Step
Five

20

Plaintiff asserts that the ALJ committed prejudicial error by failing to pose hypotheticals

21

to the VE that contained all of the functional limitations the ALJ assigned to plaintiff in his RFC

22

determination and subsequently relying on the VE’s testimony in response to those materially

23

incomplete hypotheticals to determine that plaintiff’s RFC permitted him to perform the

24

representative occupations of mail clerk, ticket taker, and cleaner/housekeeper. More

25

specifically, plaintiff contends that the ALJ’s omission of the limitation to “simple one to two

26

step tasks” contained in the ALJ’s RFC determination from the hypotheticals the ALJ posed to

27

the VE was prejudicial error because such a limitation would have precluded plaintiff from

28

working as a mail clerk or ticket taker as those occupations are defined in the Dictionary of
4

1

Occupational Titles (“DOT”).3 Plaintiff argues further that the ALJ also improperly failed to

2

reconcile the apparent conflict between the VE’s testimony that plaintiff could perform work as a

3

cleaner/housekeeper and the DOT’s functional definition of that occupation, which facially

4

requires a less restrictive standing and walking limitation than that included in the ALJ’s RFC

5

determination.

6

An ALJ may pose a range of hypothetical questions to a vocational expert, based on

7

alternate interpretations of the evidence. However, the hypothetical that ultimately serves as the

8

basis for the ALJ’s determination, i.e., the hypothetical that is predicated on the ALJ’s final RFC

9

determination, must account for all of the limitations and restrictions of the particular claimant

10

that are supported by substantial evidence in the record as a whole. Bray v. Comm’r of Soc. Sec.

11

Admin., 554 F.3d 1219, 1228 (9th Cir. 2009). “If an ALJ’s hypothetical does not reflect all of the

12

claimant’s limitations, then the expert’s testimony has no evidentiary value to support a finding

13

that the claimant can perform jobs in the national economy.” Id. (citation and quotation marks

14

omitted). However, the ALJ “is free to accept or reject restrictions in a hypothetical question that

15

are not supported by substantial evidence.” Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir.

16

2006). Furthermore, as the Ninth Circuit Court of Appeals has observed, an ALJ may synthesize

17

and translate assessed limitations into an RFC assessment (and subsequently into a hypothetical to

18

the vocational expert) without repeating each functional limitation verbatim in the RFC

19

assessment or hypothetical. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173-74 (9th Cir. 2008)

20

(holding that an ALJ’s RFC assessment that a claimant could perform simple tasks adequately

21

captured restrictions related to concentration, persistence, or pace, because the assessment was

22

consistent with the medical evidence).

23

/////

24
3

25
26
27
28

The United States Dept. of Labor, Employment & Training Admin., Dictionary of Occupational
Titles (4th ed. 1991), (“DOT”) is routinely relied on by the Social Security Administration “in
determining the skill level of a claimant’s past work, and in evaluating whether the claimant is
able to perform other work in the national economy.” Terry v. Sullivan, 903 F.2d 1273, 1276
(9th Cir. 1990). The DOT classifies jobs by their exertional and skill requirements. The DOT is
a primary source of reliable job information for the Commissioner. 20 C.F.R. §§ 404.1566(d)(1),
416.966(d)(1).
5

1

With regard to the ALJ’s determination that plaintiff could perform work as a mail clerk

2

or ticket taker based on the VE’s testimony, plaintiff argues that the ALJ’s failure to include the

3

RFC limitation that plaintiff could perform only “simple one to two step tasks” in the

4

hypotheticals he posed to the VE rendered that determination erroneous because the inclusion of

5

such a limitation would have precluded plaintiff from performing those occupations as they are

6

defined in the DOT. Plaintiff contends that under the DOT definitions for mail clerk and ticket

7

taker, plaintiff must be able to perform tasks involving Level 3 reasoning and that a restriction to

8

“simple one to two step tasks” would create an apparent conflict between plaintiff’s RFC and the

9

DOT’s description of any jobs requiring Level 3 reasoning.4 In support of this argument, plaintiff

10

cites to the Ninth Circuit Court of Appeals’ recent ruling in Rounds v. Comm’r Soc. Sec. Admin.,

11

which held that a restriction to one- or two-step tasks creates an apparent conflict between a

12

claimant’s RFC and the ability to perform a job defined in the DOT as requiring Level 2

13

reasoning or higher. 807 F.3d 996, 1102-04 (9th Cir. 2015). In Rounds, the Ninth Circuit found

14

that an ALJ committed prejudicial error based on his failure to resolve the conflict between his

15

RFC finding that the claimant could perform only one- or two-step tasks with the VE’s testimony

16

that the claimant could perform work that the DOT defined as requiring Level 2 reasoning. Id.

17

Accordingly, plaintiff argues, the ALJ here committed prejudicial error under the Ninth Circuit’s

18

holding in Rounds by not including plaintiff’s “simple one to two step tasks” limitation in his

19

hypotheticals to the VE because had the ALJ included this limitation, either the VE would not

20

have testified that plaintiff could perform the two jobs, or, if the VE did testify that plaintiff could

21

have performed such work, the ALJ would have been required to reconcile the apparent conflict

22

between the VE’s testimony and the DOT.
The court agrees with plaintiff’s argument that the ALJ erred by not including plaintiff’s

23
24

RFC limitation to “simple one to two step tasks” in the hypotheticals he posed to the VE. The

25
4

26
27
28

The DOT breaks jobs into six GED Reasoning Levels that range from Level 1 (simplest) to
Level 6 (most complex). DOT (4th ed. 1991), App. C, § III, 1991 WL 688702. Level 3
reasoning requires a worker to “[a]pply commonsense understanding to carry out instructions
furnished in written, oral, or diagrammatic form [and d]eal with problems involving several
concrete variables in or from standardized situations.”
6

1

ALJ was required to provide all of plaintiff’s functional limitations in the hypothetical he posed to

2

the VE before he could properly rely on the VE’s response in support of his step five

3

determination. Bray, 554 F.3d at 1228. The ALJ’s omission of plaintiff’s limitation to “simple

4

one to two step tasks” from the first hypothetical he posed to the VE—the hypothetical that

5

formed the basis of the ALJ’s step five determination—meant that the VE’s testimony in response

6

was not substantial evidence to support his step five determination that plaintiff could perform

7

work as a mail clerk or ticket taker. Accordingly, the ALJ’s reliance on that testimony to support

8

his step five determination was in error. Moreover, had the ALJ properly included the omitted

9

limitation, he still would not have been able to properly find that plaintiff’s RFC permitted him to

10

perform work as a mail clerk or ticket taker without first adequately resolving the apparent

11

conflict between plaintiff’s limitation to simple one- or two-step tasks and the DOT’s Level 3

12

reasoning requirement for those jobs. See Rounds, 807 F.3d at 1102-04 (“Because the ALJ did

13

not recognize the apparent conflict between [plaintiff’s] RFC and the demands of Level Two

14

reasoning, the VE did not address whether the conflict could be resolved. As a result, we cannot

15

determine whether substantial evidence supports the ALJ’s step-five finding.” (internal quotations

16

omitted)).

17

The Commissioner appears to concede the fact that plaintiff’s RFC limitation to work

18

involving “simple one to two step tasks” presumptively precluded him from working in

19

occupations requiring an ability to engage in Level 3 reasoning, including work as a mail clerk or

20

ticket taker, under the Ninth Circuit’s holding in Rounds. Nevertheless, the Commissioner argues

21

that the ALJ’s error was harmless because he also correctly determined that plaintiff could

22

perform work as a cleaner/housekeeper, an occupation not precluded by plaintiff’s limitation to

23

one- to two-step tasks, based on the VE’s testimony.

24

Plaintiff contends that the ALJ’s reliance on the VE’s testimony that plaintiff could

25

perform work as a cleaner/housekeeper was also in error because plaintiff’s RFC limited him to

26

“sit[ting], stand[ing], or walk[ing] for 6 hours in an 8-hour workday,” AT 17, which conflicted

27

with the DOT’s description for that job, therefore requiring the ALJ to resolve that conflict, which

28

the ALJ did not do. More specifically, plaintiff asserts that the DOT description for
7

1

cleaner/housekeeper is comprised of actions that appear on their face to require more than 6 hours

2

total of walking and/or standing in an 8-hour workday, therefore presumptively precluding

3

plaintiff from performing such a job given his RFC limitations. This argument is without merit.

4

Here, the VE testified that the job of cleaner/housekeeper was considered light work as

5

described in the DOT. AT 43. The DOT description for that occupation also clearly defines the

6

required strength level as “light work,” which it defines in the same way as the regulations. DOT

7

323.687-014. The regulations define “light work” as follows:

8

Light work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds.
Even though the weight lifted may be very little, a job is in this
category when it requires a good deal of walking or standing, or
when it involves sitting most of the time with some pushing and
pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, you must have the
ability to do substantially all of these activities.

9
10
11
12
13
14

20 C.F.R. §§ 404.1567(b), 416.967(b) (emphasis added). Social Security Ruling (“SSR”) 83-10

15

further elaborates that “the full range of light work requires standing or walking, off and on, for a

16

total of approximately 6 hours of an 8-hour workday.” Here, the ALJ determined that plaintiff

17

was capable of standing or walking for up to 6 hours in an 8-hour workday—a determination

18

plaintiff does not challenge—which matched the standing/walking capacity the Commissioner

19

has determined is required to engage in the full range of light work. See 20 C.F.R. § 416.967;

20

SSR 83-10. Accordingly, there was no apparent conflict between the VE’s testimony that

21

plaintiff could perform work as a cleaner/housekeeper and the standing/walking requirements of

22

that job.

23

Plaintiff appears to argue that the tasks listed in the DOT that comprise the occupation of

24

cleaner/housekeeper indicate that the job require a standing/walking capacity greater than 6 hours

25

total in an 8-hour workday because the majority of those tasks could not realistically be

26

performed while sitting. However, this argument is based merely on plaintiff’s own speculation

27

that these tasks could theoretically require greater standing/walking capabilities than what the VE

28
8

1

testified was required for that occupation. The VE, an expert regarding whether a claimant’s

2

work skills can be used in other work and the specific occupations in which they can be used, see

3

20 C.F.R. §§ 404.1566, 416.966, testified at the administrative hearing that a person with

4

plaintiff’s functional limitations, including his standing/walking restriction of 6 hours total, could

5

perform work as a cleaner/housekeeper. AT 43. At the end of the administrative hearing the ALJ

6

asked the VE whether there existed a conflict between her testimony and information in the DOT,

7

to which the VE replied, “[n]o, Your Honor.” AT 44. Plaintiff’s attorney did not identify any

8

inconsistencies between the VE’s testimony and the DOT, and, in fact, did not question the VE

9

regarding potential inconsistencies at all, despite being provided an opportunity to do so by the

10

ALJ. Id. Accordingly, it was reasonable for the ALJ to rely on the VE’s unrebutted testimony

11

that plaintiff could perform work as a cleaner/housekeeper given his standing/walking limitation.

12

In addition, the fact that the ALJ erred by not including plaintiff’s limitation to “simple

13

one to two step tasks” in the hypothetical did not preclude the ALJ from determining that plaintiff

14

could perform work as a cleaner/housekeeper. The DOT lists the job of cleaner/housekeeper as

15

requiring Level 1 reasoning, which necessitates a worker to “[a]pply commonsense understanding

16

to carry out simple one- or two-step instructions.” DOT (4th ed. 1991), App. C, § III, 1991 WL

17

688702 (emphasis added). That definition contains within it the very limitation that the ALJ

18

accorded to plaintiff, therefore demonstrating a lack of conflict between the plaintiff’s RFC and

19

the DOT. Accordingly, the ALJ’s error in not including plaintiff’s limitation to “simple one to

20

two step tasks” in the hypothetical he posed the VE was harmless insofar as it pertained to the

21

ALJ’s step five determination that plaintiff could perform work as a cleaner/housekeeper based

22

on the VE’s testimony.

23

Given the lack of an apparent conflict between plaintiff’s RFC, the VE’s testimony, and

24

the DOT description for cleaner/housekeeper, and the VE’s unrebutted statement that her

25

testimony did not conflict with the DOT, the ALJ’s reliance on the VE’s testimony in support of

26

his step five determination that plaintiff could perform other work was reasonably justified.

27

Furthermore, the VE testified that there existed 865,000 cleaner/housekeeper jobs nationally, with

28

29,000 such jobs in California alone, AT 43, therefore showing that that occupation alone
9

1

provided a significant number of jobs that plaintiff was able to perform given his RFC. See

2

Martinez v. Heckler, 807 F.2d 771, 775 (9th Cir. 1986) (upholding ALJ’s finding that 3,750 to

3

4,250 jobs were a significant number). In short, the ALJ properly relied on the VE’s testimony

4

that plaintiff could perform work as a cleaner/housekeeper as substantial evidence in support of

5

his step five determination that plaintiff was able to perform other work that existed in significant

6

numbers. Because the ALJ appropriately based his ultimate decision that plaintiff was not

7

disabled within the meaning of the Act on a proper determination that plaintiff could perform

8

work as a cleaner/housekeeper, which by itself constituted a significant number of jobs, his

9

erroneous determination that plaintiff could also perform work as a mail clerk or a ticket taker

10

was harmless.

11

CONCLUSION

12

For the reasons stated herein, IT IS HEREBY ORDERED that:

13

1. Plaintiff’s motion for summary judgment (ECF No. 13) is denied;

14

2. The Commissioner’s cross-motion for summary judgment (ECF No. 14) is granted;

15
16
17

and
3. Judgment is entered for the Commissioner.
Dated: April 15, 2016

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

18
19
20
21

11 pittman0819.ss

22
23
24
25
26
27
28
10