Drayton v. Colvin

Filing 22

MEMORANDUM, OPINION and ORDER signed by Magistrate Judge Dennis M. Cota on 9/20/18 DENYING 17 Motion for Summary Judgment and GRANTING 18 Motion for Summary Judgment. The Commissioner's final decision is AFFIRMED. Judgment is entered for the Commissioner. CASE CLOSED (Kastilahn, A)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

JOHN DRAYTON,

12

Plaintiff,

13
14

No. 2:16-CV-3056-DMC

vs.

MEMORANDUM OPINION AND ORDER

COMMISSIONER OF SOCIAL
SECURITY,

15
Defendant.
16
/
17
18

Plaintiff, who is proceeding with retained counsel, brings this action under

19

42 U.S.C. § 405(g) for judicial review of a final decision of the Commissioner of Social

20

Security. Pursuant to the written consent of all parties (Docs. 7 and 8), this case is before the

21

undersigned as the presiding judge for all purposes, including entry of final judgment. See 28

22

U.S.C. § 636(c). Pending before the court are the parties’ cross-motions for summary judgment

23

(Docs. 17 and 18).

24

///

25

///

26

///
1

1

The court reviews the Commissioner’s final decision to determine whether it is:

2

(1) based on proper legal standards; and (2) supported by substantial evidence in the record as a

3

whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is

4

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

5

(9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to

6

support a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole,

7

including both the evidence that supports and detracts from the Commissioner’s conclusion, must

8

be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones

9

v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner’s

10

decision simply by isolating a specific quantum of supporting evidence. See Hammock v.

11

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

12

findings, or if there is conflicting evidence supporting a particular finding, the finding of the

13

Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).

14

Therefore, where the evidence is susceptible to more than one rational interpretation, one of

15

which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v.

16

Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal

17

standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338

18

(9th Cir. 1988).

19
20

I. THE DISABILITY EVALUATION PROCESS

21

To achieve uniformity of decisions, the Commissioner employs a five-step

22

sequential evaluation process to determine whether a claimant is disabled. See 20 C.F.R.

23

§§ 404.1520 (a)-(f) and 416.920(a)-(f). The sequential evaluation proceeds as follows:

24

Step 1

25
26

Determination whether the claimant is engaged in
substantial gainful activity; if so, the claimant is presumed
not disabled and the claim is denied;

///
2

1

Step 2

If the claimant is not engaged in substantial gainful activity,
determination whether the claimant has a severe
impairment; if not, the claimant is presumed not disabled
and the claim is denied;

Step 3

If the claimant has one or more severe impairments,
determination whether any such severe impairment meets
or medically equals an impairment listed in the regulations;
if the claimant has such an impairment, the claimant is
presumed disabled and the clam is granted;

Step 4

If the claimant’s impairment is not listed in the regulations,
determination whether the impairment prevents the
claimant from performing past work in light of the
claimant’s residual functional capacity; if not, the claimant
is presumed not disabled and the claim is denied;

Step 5

If the impairment prevents the claimant from performing
past work, determination whether, in light of the claimant’s
residual functional capacity, the claimant can engage in
other types of substantial gainful work that exist in the
national economy; if so, the claimant is not disabled and the
claim is denied.

2
3
4
5
6
7
8
9
10
11
12
13

See id.

14

To qualify for benefits, the claimant must establish the inability to engage in

15

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

16

has lasted, or can be expected to last, a continuous period of not less than 12 months. See 42

17

U.S.C. § 1382c(a)(3)(A). The claimant must provide evidence of a physical or mental

18

impairment of such severity the claimant is unable to engage in previous work and cannot,

19

considering the claimant’s age, education, and work experience, engage in any other kind of

20

substantial gainful work which exists in the national economy. See Quang Van Han v. Bower,

21

882 F.2d 1453, 1456 (9th Cir. 1989).

22

The claimant has the initial burden of proving the existence of a disability. See

23

Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). The claimant establishes a prima facie

24

case by showing that a physical or mental impairment prevents the claimant from engaging in

25

previous work. See Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984); 20 C.F.R. §§

26

404.1520(f) and 416.920(f). If the claimant establishes a prima facie case, the burden then shifts
3

1

to the Commissioner to show the claimant can perform other work existing in the national

2

economy. See Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988); Hoffman v. Heckler,

3

785 F.2d 1423, 1425 (9th Cir. 1986); Hammock v. Bowen, 867 F.2d 1209, 1212-1213 (9th Cir.

4

1989).

5
6

II. THE COMMISSIONER’S FINDINGS

7

Plaintiff applied for social security benefits on July 24, 2012, claiming disability

8

beginning on July 27, 2009. See CAR 12.1 Plaintiff’s claim was initially denied. Following

9

denial of reconsideration, plaintiff requested an administrative hearing, which was held on

10

December 11, 2014, before Administrative Law Judge (“ALJ”) Bradlee S. Welton. See id. In a

11

May 27, 2015, decision, the ALJ concluded plaintiff is not disabled based on the following

12

relevant findings:

13

1.

The claimant has the following severe impairment(s): degenerative disc
disease of the lumbar and cervical spine with pain;

2.

The claimant does not have an impairment or combination of impairments
that meets or medically equals an impairment listed in the regulations;

3.

The claimant has the following residual functional capacity: full range of
light work;

4.

Considering the claimant’s age, education, work experience, residual
functional capacity, and vocational expert testimony, the claimant can
perform past relevant work.

14
15
16
17
18
19
See id. at 14-19.
20
21

After the Appeals Council declined review on November 16, 2016, this appeal followed.

22

///

23

///

24

///

25
1

26

Citations are to the Certified Administrative Record lodged on July 11, 2017

(Doc. 12).
4

1

III. DISCUSSION

2

Plaintiff contends he is disabled due to pain caused by degenerative disc disease

3

of the lumbar and cervical spine. In his motion for summary judgment, plaintiff argues the ALJ

4

erred in concluding he can perform his past relevant work. According to plaintiff: (1) the ALJ’s

5

conclusion is not supported by the medical evidence; (2) the ALJ’s adverse credibility finding is

6

not supported by substantial evidence; (3) the ALJ failed to consider the Dictionary of

7

Occupational Titles; and (4) he is presumptively disabled under Medical Vocational Guideline

8

201.04. Plaintiff argues a remand for further proceedings is inappropriate because disability

9

would be presumed but for the ALJ’s errors and the court should instead order a direct award of

10
11

disability benefits as well as attorney’s fees under the Equal Access to Justice Act (EAJA).
A.

12

Evaluation of the Medical Evidence
As part of his analysis at Step 4, the ALJ determined plaintiff has the residual

13

functional capacity for the full range of light work as defined in 20 C.F.R. §§ 404.1567(b) and

14

416.967(b). See CAR 15. Residual functional capacity is what a person “can still do despite [the

15

individual’s] limitations.” 20 C.F.R. §§ 404.1545(a), 416.945(a) (2003); see also Valencia v.

16

Heckler, 751 F.2d 1082, 1085 (9th Cir. 1985) (holding residual functional capacity reflects

17

current “physical and mental capabilities”). Thus, residual functional capacity describes a

18

person’s exertional capabilities in light of his or her limitations.2

19
2

20
21
22
23
24
25
26

Exertional capabilities are the primary strength activities of sitting, standing,
walking, lifting, carrying, pushing, or pulling and are generally defined in terms of ability to
perform sedentary, light, medium, heavy, or very heavy work. See 20 C.F.R., Part 404, Subpart
P, Appendix 2, § 200.00(a). “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. See 20
C.F.R. §§ 404.1567(a) and 416.967(a). “Light work” involves lifting no more than 20 pounds
at a time with frequent lifting or carrying of objects weighing up to 10 pounds. See 20 C.F.R.
§§ 404.1567(b) and 416.967(b). “Medium work” involves lifting no more than 50 pounds at a
time with frequent lifting or carrying of objects weighing up to 25 pounds. See 20 C.F.R.
§§ 404.1567(c) and 416.967(c). “Heavy work” involves lifting no more than 100 pounds at a
time with frequent lifting or carrying of objects weighing up to 50 pounds. See 20 C.F.R.
§§ 404.1567(d) and 416.967(d). “Very heavy work” involves lifting objects weighing more than
100 pounds at a time with frequent lifting or carrying of objects weighing 50 pounds or more.
See 20 C.F.R. §§ 404.1567(e) and 416.967(e).
5

1

To determine plaintiff’s residual functional capacity, the ALJ evaluated the

2

medical evidence, including the opinion evidence of record. See CAR 16-18. Regarding

3

evidence from treating medical sources, the ALJ stated:

4

The claimant submitted very limited treatment records. There is a report
of an examination by orthopedic surgeon Pasquale X. Montesano, M.D.,
on April 20, 2010 (Exhibit 6F, pp. 46-47). Dr. Montesano observed
normal gait and station. There was no muscle atrophy and full range of
motion of both upper extremities with normal muscle strength. Range of
motion of the lumbar spine was “slightly” decreased with no evidence of
tenderness. The claimant returned to Dr. Montesano on May 11, 2009 (Id.,
pp. 43-45). Dr. Montesano reviewed the MRI from April 9, 2009 (Id., pp.
27-28), and recommended surgical treatment for herniated discs at C3-4,
C5-6, and C6-7, but the claimant did not believe the pain was so severe
that he wanted to try surgery (Id., p. 44).

5
6
7
8
9
10

20

He was evaluated and treated at the Sacramento VA Medical Center on
January 23, 2013, for high blood pressure and back pain (Exhibits 2F and
3F). The claimant reported chronic back pain since his 2009 motor
vehicle accident, progressively worsening for the past two or three months;
he stated he had not sought medical care since the accident until this
appointment (Exhibit 3F, pp. 18 & 23). He also reported four days of left
arm and shoulder pain. On examination, his back was non-tender with full
range of motion and straight leg raising was negative (normal) (Id., p. 19).
Similarly, the left shoulder was not tender with full passive range of
motion (Id.). The doctor observed that while explaining his shoulder and
back pain, the claimant was able to use his left arm and shoulder freely,
including gesturing and removing his wallet from his back pocket;
however, when asked about the arm specifically, he stated he could not
move it and used his right arm to support his left (Id., p. 18). He was seen
in follow-up on February 20, 2013, with no changes on examination (Id.,
p. 10) and continued on medication for high blood pressure and back pain
(Lisinopril and HCTZ with Norvac and Tramadol) (Id., p. 11). In followup on June 17, 2014, he stated took [sic] Tylenol for back pain when
needed and he used a back brace; on examination, there was no leg
weakness or numbness (Exhibit 7F, p. 10). No more recent medical
evidence was submitted.

21

CAR 16-17.

11
12
13
14
15
16
17
18
19

22

The ALJ also noted plaintiff was examined at the request of the agency by Dr. Jonathan Schwartz

23

on October 15, 2013. See Id. at 17 (citing Exhibit 4F). Dr. Schwartz concluded plaintiff could

24

lift and carry 25 pounds frequently and 50 pounds occasionally. See id. In November 2013,

25

agency consultant, Dr. Alicia Blando, concurred. See CAR 17. Summarizing his review of the

26

///
6

1

medical evidence, the ALJ stated::

2

Overall, the observations of the claimant by trained medical professionals
resulted in findings of normal gait and station, no muscle atrophy, full
range of motion of both upper extremities, and normal muscle strength.
Range of motion of the lumbar spine was slightly decreased with no
evidence of tenderness. Dr. Montesano recommended surgery, but the
claimant did not believe the pain was so severe that he wanted surgery. He
testified he continued to look for work into 2012, indicating he did not
find his back pain disabling. . . .

3
4
5
6

CAR 17.
7
8

The ALJ concluded: “Even adopting the most restrictive assessment from the examining and

9

non-examining physicians, the claimant is limited to no less than the full range of light work.”

10

See id.

11

Plaintiff argues the ALJ’s Step 4 determination is not supported by substantial

12

evidence. Plaintiff notes the clinical findings of various doctors, specifically Drs. Schwartz,

13

Antovich, Blando, Khav, Montesano, and Selcon. Plaintiff does not, however, reference any

14

specific finding made by the ALJ, let alone articulate how any finding is flawed with respect to

15

these doctors. The court simply cannot discern from plaintiff’s brief any claim of error regarding

16

the ALJ’s evaluation of the medical evidence in determining his residual functional capacity.

17
18

B.

Credibility Determination
At Step 4, the ALJ also considered plaintiff’s own statements and testimony in

19

determining plaintiff’s residual functional capacity and found them not credible. See CAR 15-

20

18. The court defers to the Commissioner’s discretion in this regard if the proper process is used

21

and the proper reasons are provided. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996). To

22

meet this standard, the Commissioner must make explicit credibility findings supported by

23

specific, cogent reasons. See Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). General

24

findings are insufficient. See Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). Rather, the

25

Commissioner must identify what testimony is not credible and what evidence undermines the

26

testimony. See id. Moreover, unless there is affirmative evidence in the record of malingering,
7

1

the reasons for rejecting testimony as not credible must be “clear and convincing.” See id.; see

2

also Carmickle v. Commissioner, 533 F.3d 1155, 1160 (9th Cir. 2008) (citing Lingenfelter v

3

Astrue, 504 F.3d 1028, 1936 (9th Cir. 2007), and Gregor v. Barnhart, 464 F.3d 968, 972 (9th Cir.

4

2006)).

5

If there is objective medical evidence of an underlying impairment, the

6

Commissioner may not discredit a claimant’s testimony as to the severity of symptoms merely

7

because they are unsupported by objective medical evidence. See Bunnell v. Sullivan, 947 F.2d

8

341, 347-48 (9th Cir. 1991) (en banc). As the Ninth Circuit explained in Smolen v. Chater:

9
10
11
12
13

The claimant need not produce objective medical evidence of the
[symptom] itself, or the severity thereof. Nor must the claimant produce
objective medical evidence of the causal relationship between the
medically determinable impairment and the symptom. By requiring that
the medical impairment “could reasonably be expected to produce” pain or
another symptom, the Cotton test requires only that the causal relationship
be a reasonable inference, not a medically proven phenomenon.
80 F.3d 1273, 1282 (9th Cir. 1996) (referring to the test established in
Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986)).

14
15

The Commissioner may, however, consider the nature of the symptoms alleged,

16

including aggravating factors, medication, treatment, and functional restrictions. See Bunnell,

17

947 F.2d at 345-47. In weighing credibility, the Commissioner may also consider: (1) the

18

claimant’s reputation for truthfulness, prior inconsistent statements, or other inconsistent

19

testimony; (2) unexplained or inadequately explained failure to seek treatment or to follow a

20

prescribed course of treatment; (3) the claimant’s daily activities; (4) work records; and

21

(5) physician and third-party testimony about the nature, severity, and effect of symptoms. See

22

Smolen, 80 F.3d at 1284 (citations omitted). It is also appropriate to consider whether the

23

claimant cooperated during physical examinations or provided conflicting statements concerning

24

drug and/or alcohol use. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). If the

25

claimant testifies as to symptoms greater than would normally be produced by a given

26

impairment, the ALJ may disbelieve that testimony provided specific findings are made. See
8

1
2
3
4
5
6
7
8
9
10
11

Carmickle, 533 F.3d at 1161 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)).
As to plaintiff’s credibility, the ALJ summarized plaintiff’s statements and
testimony of record as follows:
The claimant alleged disability due to “back pain,” a tumor growing in his
chest, and arthritis in his back and legs (Exhibit 4E, p. 2). He later
corrected the record and indicated the growth on his chest was determined
not to be a tumor (Exhibit 7E). He stated that he stopped working as a
security guard/supervisor in July 2009 because of his condition (Exhibit
4E, p. 3), although he worked briefly in 2010 and 2011 doing the same
type of work (Exhibit 5E, p. 2).
The claimant described that the pain in his back limited him to walking no
more than a block at a time and that he had received a recommendation for
surgery but declined (Exhibit 7E). He also stated that he could not wear
the heavy utility belt he wore as a security guard because of pain in his
back and he did not believe he could perform the part of his job that
required him to take someone into custody (Exhibit 7E). The claimant
indicated that the motor vehicle accident in 2009 (the car he was driving
was rear-ended) caused major pain in his lower back (Exhibit 14E).

12
13
14

He testified he last worked in 2010 and he did not receive any medical
treatment from 2009 to 2012 because he was taking pain pills as needed
and looking for work. He further testified that his back pain progressively
was worse. He believed he could do a security guard job if he could be
seated or only do driving.

15
CAR 15-16.
16
17
18
19
20
21

Evaluating the credibility of plaintiff’s statements and testimony, the ALJ stated:
To the extent that he alleged greater dysfunction [precluding light work],
he is not credible. The first and primary factor considered to reach that
conclusion is the medical evidence, as described above. The objective
findings are limited to an MRI from 2009 with no follow-up by the VA,
indicating their conclusion that the claimant’s presentation did not warrant
further X-rays or other studies. Clinical observations were fairly benign,
with only slightly decreased range of motion, non evidence of tenderness
in the spine, and normal straight leg raising tests.

22
23
24
25
26

A second factor considered is that there is no opinion from a treating or
examining source finding the claimant disabled.. Even resolving all
inferences in favor of the claimant and taking into consideration his
testimony about pain, the undersigned assigns the greatest weight to Dr.
Sanford’s opinion that the claimant could perform light work. Dr. Sanford
had the advantage of a review of the MRI and the prior report by Dr.
Montesano, which were not made available to Dr. Schwartz. Accordingly,
less weight is assigned to the opinion of Drs. Schwartz and Bland because
9

1

they are less consistent with the longitudinal record.3

2

Another factor considered is that when examined at the VA, the doctor
observed that while explaining his shoulder and back pain, the claimant
was able to use his left arm and shoulder freely, including gesturing and
removing his wallet from his back pocket; however, when asked about the
arm specifically, he stated he could not move it and used his right arm to
support his left (Exhibit 3F, p. 18). This type of inconsistent and possibly
exaggerating behavior tends to undermine the credibility of his other
statements about the nature and extent of his pain and other symptoms.

3
4
5
6

Other factors include that the claimant alleged disability since 2009 but
admitted that he continued to look for work at least into 2012 and testified
that if he could find a security job that required only sitting or driving, be
could do that job.

7
8
9

14

In light of all of the factors affecting the claimant’s credibility, the
undersigned does not find the claimant’s allegations of disabling
symptoms fully to be credible or reliable. In alleging disability, the
claimant essentially asserts that he can perform no substantial gainful
activity on a sustained basis as a result of his symptoms. As discussed
above, the medical evidence does not support these allegations. Moreover,
the claimant’s own testimony of pain is not found fully to be credible. The
undersigned finds that the routine and very limited medical treatment for
his symptoms and that no treating or evaluating physician finds him
disabled from work constitute reasons for rejecting his allegations and
testimony of excess symptoms.

15

CAR 17-18.

16

Plaintiff argues the ALJ erred by failing to cite clear and convincing reasons and

10
11
12
13

17

by citing legally insufficient reasons to support his adverse credibility finding. According to

18

plaintiff, the ALJ erred by: (1) improperly citing his limited treatment during a time “. . .he

19

believed he was not eligible for treatment because he did not have medical insurance. . .”; and

20

(2) concluding that inconsistencies in the record demonstrated exaggeration.

21

Plaintiff’s argument regarding the ALJ’s citation to limited medical treatment is

22

unpersuasive. Citing Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007), holding an ALJ errs by

23

citing a lack of medical insurance in support of an adverse credibility finding, plaintiff contends

24

the ALJ similarly erred by referencing his lack of medical treatment from 2009 through 2012, a

25
3

26

Plaintiff raises no arguments concerning the weight the ALJ assigned the various
medical opinions.
10

1

time period plaintiff alleges he lacked medical insurance. Initially, the court observes that

2

plaintiff does not cite to any portion of the record in support of his contention regarding lack of

3

insurance between 2009 and 2012, nor does the ALJ reference lack of insurance in the decision.

4

In any event, the ALJ did not cite a lack of medical insurance in support of his adverse credibility

5

finding. Rather, the ALJ cited the medical record which shows nothing more than routine,

6

limited, and very conservative treatment, which are legally sufficient reasons supported by the

7

record. See Bunnell, 947 F.2d at 345-47.

8

Plaintiff’s argument regarding exaggeration is similarly unpersuasive. The ALJ

9

discounted plaintiff’s statements and testimony in part because his presentation at the

10

Sacramento VA Medical Center in January 2013 indicated “inconsistent and possibly

11

exaggerating behavior. . . .” CAR 18. Contrary to plaintiff’s characterization of the ALJ’s

12

decision, the ALJ cited inconsistencies in plaintiff’s statements and testimony in addition to, not

13

as an explanation for, possible symptom exaggeration. Regarding inconsistencies in plaintiff’s

14

statements and testimony, the ALJ properly noted that plaintiff’s allegation of disability

15

beginning in July 2009 is inconsistent with evidence that plaintiff worked briefly in 2010 and

16

2011 performing his past relevant work and was looking work in 2012. See Smolen, 80 F.3d at

17

1284.

18

C.

19
20

Plaintiff argues the ALJ erred by failing to consider the Dictionary of
Occupational Titles (DOT) in making his vocational finding at Step 4. According to plaintiff:

21

Here, neither the ALJ nor the Vocational Expert provide an exact
DOT listing. Where the ALJ fails to provide a reviewable records [sic],
she errors [sic]. DOT 372.667-034 Guard/Security and DOT 372.667-038
Merchant Patroller are semi-skilled jobs that required light strength.
Reasonably a security guard must be able to respond physically to protect
persons or property. . . . [¶] The ALJ finds Drayton had three jobs which
performed require [sic] little standing, walking, lifting or carrying at; (1)
Monument Security, (2) Pocket Security Patrol, and (3) Green Valley
Security (Tr. 26).

22
23
24
25
26

Application of the Dictionary of Occupational Titles

///
11

1

10

Here, re (1) Monumental Security required Drayton to patrol
Mather Air Force Base; patrol the fence line to make sure there was no
break in, check the door at the traffic control and check the gate and the
sheriff driving range (Tr. 214, 225). As such Monumental Security is not
a job which limits standing, walking, lifting and carrying.
Here, re (2) Pocket Security required full time walking. Drayton
states “I was placed at this one shopping center busting shop lifter and
walking around for 8hrs [sic]” (Tr. 225). As Drayton states, he was
required to walk for eight hours a day for Pocket Security did not limit his
walking or standing. As such, the Pocket Security entails standing,
walking, lifting and carrying.
Here re (3) Drayton worked at Green Valley Security was a job for
one month (Tr. 214). Drayton states; “they stuck me on a different site
walking around and standing. That was hard on my back and legs” (Tr.
225). As such, the Green Valley Security job entails standing, walking,
lifting and carrying.
Therefore (1), (2), and (3) do not support the ALJ’s finding of
security guard positions which Drayton worked which differ from the
DOT listing.

11

At Step 4, the question is whether the claimant can perform “[t]he actual

2
3
4
5
6
7
8
9

12

functional demands and job duties of a particular past relevant job”or “[t]he functional demands

13

and job duties of the occupation as generally required by employers throughout the national

14

economy.” Pinto v. Massanari, 294 F.3d 849, 845 (9th Cir. 2001). The ALJ properly considers

15

vocational evidence and the claimant’s testimony when determining whether the claimant can

16

perform the actual functional demands and duties of past work. See id. at 845. To determine

17

how past relevant work is generally performed, the ALJ need not receive vocational expert

18

testimony, see Crane v. Shalala, 76 F3d 251, 255 (9th Cir. 1996), and the ALJ should look to the

19

Dictionary of Occupational Titles (DOT), see Pinto, 249 F.3d at 845-46.

20

A review of the record reflects that plaintiff completed a Work History Report

21

describing 10 security guard jobs he performed between 1988 and 2009, as well as in 2011. See

22

CAR 214-28. From 1988 through 2005, plaintiff worked as a security guard for Security

23

Business, Alpha Dez Security, Brookfield Homeowner, Black Hawk Protection Service, and

24

Pocket Security Patrol. See id. at 214. According to plaintiff, these jobs required 8 hours of

25

walking or standing. See id. at 215-19. From 2005 to 2009, plaintiff worked for Monument

26

Security, Pocket Security Patrol, and Green Valley Security in positions he described as requiring
12

1

minimal walking or standing. See id. at 214, 220-22.

2

Because jobs requiring minimal standing can be performed within plaintiff’s

3

capacity for the full range of light work, See 20 C.F.R. §§ 404.1567(b) and 416.967(b), the court

4

finds the ALJ’s determination that plaintiff can perform his past relevant work as actually

5

performed is supported by proper analysis and substantial evidence. For this reason, the court

6

agrees with defendant that consideration of how plaintiff’s past work is generally performed

7

under the DOT was unnecessary and does not reach defendant’s argument that any error in the

8

ALJ’s vocational finding is harmless.

9

D.

Application of the Medical-Vocational Guidelines

10

Plaintiff argues the ALJ erred by not applying the Medical-Vocational Guidelines

11

to find him disabled. The Medical-Vocational Guidelines (Grids) provide a uniform conclusion

12

about disability for various combinations of age, education, previous work experience, and

13

residual functional capacity. The Grids allow the Commissioner to streamline the administrative

14

process and encourage uniform treatment of claims based on the number of jobs in the national

15

economy for any given category of residual functioning capacity. See Heckler v. Campbell, 461

16

U.S. 458, 460-62 (1983) (discussing creation and purpose of the Grids).

17

The Commissioner may apply the Grids in lieu of taking the testimony of a

18

vocational expert only when the Grids accurately and completely describe the claimant’s abilities

19

and limitations. See Jones v. Heckler, 760 F.2d 993, 998 (9th Cir. 1985); see also Heckler v.

20

Campbell, 461 U.S. 458, 462 n.5 (1983). Thus, the Commissioner generally may not rely on the

21

Grids if a claimant suffers from non-exertional limitations because the Grids are based on

22

exertional strength factors only.4 See 20 C.F.R., Part 404, Subpart P, Appendix 2, § 200.00(b).

23
4

24
25
26

Exertional capabilities are the primary strength activities of sitting, standing,
walking, lifting, carrying, pushing, or pulling and are generally defined in terms of ability to
perform sedentary, light, medium, heavy, or very heavy work. See 20 C.F.R., Part 404, Subpart
P, Appendix 2, § 200.00(a). “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. See 20
C.F.R. §§ 404.1567(a) and 416.967(a). “Light work” involves lifting no more than 20 pounds at
13

1

“If a claimant has an impairment that limits his or her ability to work without directly affecting

2

his or her strength, the claimant is said to have non-exertional . . . limitations that are not covered

3

by the Grids.” Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993) (citing 20 C.F.R., Part 404,

4

Subpart P, Appendix 2, § 200.00(d), (e)). The Commissioner may, however, rely on the Grids

5

even when a claimant has combined exertional and non-exertional limitations, if non-exertional

6

limitations do not impact the claimant’s exertional capabilities. See Bates v. Sullivan, 894 F.2d

7

1059, 1063 (9th Cir. 1990); Polny v. Bowen, 864 F.2d 661, 663-64 (9th Cir. 1988).

8
9

In cases where the Grids are not fully applicable, the ALJ may meet his burden
under Step 5 of the sequential analysis by propounding to a vocational expert hypothetical

10

questions based on medical assumptions, supported by substantial evidence, that reflect all the

11

plaintiff’s limitations. See Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995). Specifically,

12

where the Grids are inapplicable because plaintiff has sufficient non-exertional limitations, the

13

ALJ is required to obtain vocational expert testimony. See Burkhart v. Bowen, 587 F.2d 1335,

14

1341 (9th Cir. 1988).

15
16
17
18
19

According to plaintiff, had the ALJ not committed the errors argued above, he
would be presumed disabled at Step 5 under the Grids. Plaintiff argues:
The ALJ finds Drayton is advanced age, has severe impairments,
his past jobs were light strength, and Drayton has transferable skills (Tr.
18). The Grids 201.04 finds an applicant presumptively disabled where
(1) the applicant is advanced age (2) has a high school education or more
(3) does not have transferable skills.

20
21
22
23
24
25
26

a time with frequent lifting or carrying of objects weighing up to 10 pounds. See 20 C.F.R. §§
404.1567(b) and 416.967(b). “Medium work” involves lifting no more than 50 pounds at a time
with frequent lifting or carrying of objects weighing up to 25 pounds. See 20 C.F.R. §§
404.1567(c) and 416.967(c). “Heavy work” involves lifting no more than 100 pounds at a time
with frequent lifting or carrying of objects weighing up to 50 pounds. See 20 C.F.R. §§
404.1567(d) and 416.967(d). “Very heavy work” involves lifting objects weighing more than
100 pounds at a time with frequent lifting or carrying of objects weighing 50 pounds or more.
See 20 C.F.R. §§ 404.1567(e) and 416.967(e).
Non-exertional activities include mental, sensory, postural, manipulative, and
environmental matters which do not directly affect the primary strength activities. See 20 C.F.R.,
Part 404, Subpart P, Appendix 2, § 200.00(e).
14

1

Here re; (1) Drayton was 63 when the ALJ issued his decision. He
is now 66 years old. For individuals who are of advanced age (55 and
over), there must be very little, if any, vocational adjustment (200.2F). As
such he meets the advanced age criteria.
Here; re; (2) Drayton has had two years of college. He served in
Vietnam, and when he returned, he became a security guard. He has only
worked as a security guard since 1987. He has had no any [sic] other
training in the last fifteen years. As such, he is evaluated under the high
school graduate or more criteria.
Here, re; (3) security guard is a semi-skilled job with SVP of 3 (Tr.
18). 20 C.F.R. §§416.968 and 404.1568 state, “Semi-skilled work is work
which needs some skills but does not require doing the more complex
work duties. Semi-skilled jobs may require alertness and close attention to
watching machine processes; or inspecting, testing or otherwise looking
for irregularities; or tending or guarding equipment, property, materials, or
persons against loss, damage or injury; or other types of activities which
are similarly less complex than skilled work, but more complex than
unskilled work. A job may be classified as semi-skilled where
coordination and dexterity are necessary, as when hands or feet must be
moved quickly to do repetitive tasks” (emphasis added by plaintiff).
Under the Grids 201.04 profile, only skilled work is transferable.
Drayton has no skilled work skills which are transferable. The ALJ finds
Drayton has no transferable skills. As such, Drayton has no transferable
skills (Tr. 25, 86).
As (1), (2), and (3) are met. The ALJ has not been able to show
Drayton could work his past work by substantial evidence. Drayton meets
Medical Vocational Profile at 201.04 and is disabled.

2
3
4
5
6
7
8
9
10
11
12
13
14
15

Plaintiff’s argument is unavailing because the Grids are inapplicable in cases where, as here, the

16

ALJ properly concludes the claimant can perform past relevant work. See 20 C.F.R., Pt. 404,

17

Subpart P, Appendix 2, § 200.00(a).

18

///

19

///

20

///

21

///

22

///

23

///

24

///

25

///

26

///
15

1

IV. CONCLUSION

2

Based on the foregoing, the court concludes that the Commissioner’s final

3

decision is based on substantial evidence and proper legal analysis.5 Accordingly, IT IS

4

HEREBY ORDERED that:

5

1.

Plaintiff’s motion for summary judgment (Doc. 17) is denied;

6

2.

Defendant’s motion for summary judgment (Doc. 18) is granted;

7

3.

The Commissioner’s final decision is affirmed; and

8

4.

The Clerk of the Court is directed to enter judgment and close this file.

9
10
11

DATED:

September 20, 2018

12
13

____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

14
15
16
17
18
19
20
21
22
23
24
25
5

26

Because plaintiff has not established any error, the court rejects plaintiff’s
argument that a direct award of benefits is warranted.
16