Decrosta v. Commissioner of SSA

Filing 26

ORDER RE: PLAINTIFFS MOTION FOR SUMMARY JUDGMENT AND DEFENDANTS CROSS-MOTION FOR SUMMARY JUDGMENT (Dkt. Nos. 16, 20, 25). Signed by Magistrate Judge Jacqueline Scott Corley on 1/6/2012. (ahm, COURT STAFF) (Filed on 1/6/2012)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 10 11 STACEY ANNE DECROSTA, Case No.: 10-cv-2886 JSC Northern District of California United States District Court 12 Plaintiff, 13 14 v. ORDER RE: PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT (Dkt. Nos. 16, 20, 25) 15 16 17 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 18 19 Plaintiff Stacey Anne Decrosta brings this action pursuant to 42 U.S.C. § 405(g) to 20 seek judicial review of a final decision by Defendant Michael J. Astrue, the Commissioner of 21 the Social Security Administration, that denies her disability benefits. Pending before the 22 Court are Plaintiff‟s Motion for Summary Judgment (Dkt. No. 16) and Defendant‟s Cross- 23 Motion for Summary Judgment (Dkt. No. 20). The Court previously granted Defendant‟s 24 cross-motion for summary judgment as to Plaintiff‟s arguments 1 and 2 (referenced in Dkt. 25 No. 19 as 1 and 3) but deferred decision on both summary judgment motions regarding 26 Plaintiff‟s third argument pending further briefing. (Dkt. No. 24.) With the benefit of this 27 briefing (Dkt. No. 25) and for the reasons set forth below, the Court DENIES Plaintiff‟s 28 1 motion for summary judgment and GRANTS Defendant‟s cross-motion for summary 2 judgment as to this final issue.1 3 THE NOVEMBER 29, 2011 ORDER 4 The ALJ determined that Decrosta “would not be disabled if she stopped [her] 5 substance use” and that Decrosta‟s residual functional capacity absent drug use would allow 6 her to perform “a significant number of jobs in the national economy.” AR 15. Decrosta 7 challenged the ALJ‟s decision on three grounds: 1) “whether the ALJ discounted medical 8 opinion without sufficient findings;” 2) “whether the RFC findings were supported by 9 substantial evidence;” and 3) “whether Defendant sustained the burden of proving the 10 existence of jobs at step five.” (Dkt. No. 16 at 6-8.) After a careful review of the record and briefing by the parties, the Court determined Northern District of California United States District Court 11 12 that Plaintiff‟s first and second arguments were without merit. (Dkt. No. 24.) Substantial 13 evidence in the record supported the ALJ‟s evaluation of the medical evidence and Plaintiff‟s 14 RFC. (Dkt. No. 24 at 8-12.) Defendant‟s cross motion for summary judgment was therefore 15 granted as to these two issues. The Court now addresses Plaintiff‟s final argument that at 16 step five the ALJ erroneously relied on the grids without calling a vocational expert to assess 17 the availability of jobs. 18 DISCUSSION 19 The determination at step five centers on whether the claimant is able to perform 20 existing work in the national economy. Stout v. Commissioner, 454 F.3d 1050, 1052 (9th 21 Cir. 2006); see also 20 C.F.R. § 404.920(a)(4)(v). The burden rests on the defendant to 22 demonstrate the existence of a significant number of jobs in the national economy that could 23 be performed by the claimant. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.1999). This 24 burden is satisfied through testimony from a vocational expert or reference to the Medical– 25 Vocational Guidelines, which present “a short-hand method for determining the availability 26 27 28 1 The parties have consented to the jurisdiction of a United States magistrate judge pursuant to 28 U.S.C. § 636(c). (Dkt. Nos. 5 and 8.) 2 1 and numbers of suitable jobs for a claimant. These tables are commonly known as „the 2 grids.‟” Id. at 1101. The Medical–Vocational Guidelines (“the grids”) can be used in place of testimony 3 4 from a vocational expert when “the grids accurately and completely describe the claimant‟s 5 abilities and limitations.” Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988) (internal 6 citation omitted). Reliance on the grids alone, however, is not appropriate if the claimant has 7 nonexertional limitations that “significantly limit the range of work permitted by the 8 claimant‟s exertional limitations.” Id. Exertional limitations affect a claimant‟s “ability to 9 meet the strength demands of jobs.” 20 C.F.R. § 416.969(b). Nonexertional limitations cover Northern District of California all other limitations, including difficulty functioning because the claimant is “nervous, 11 United States District Court 10 anxious, or depressed” or has trouble “maintaining attention or concentrating” and 12 “understanding or remembering detailed instructions.” C.F.R. § 416.969(c)(1). The ALJ must “seek the assistance of a vocational expert when the non-exertional 13 14 limitations are at a sufficient level of severity such as to make the grids inapplicable to the 15 particular case.” Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007). The evaluation “of 16 whether a nonexertional limitation significantly limits the range of work the claimant is able 17 to perform is left to the ALJ.”2 Sam v. Astrue, 2010 WL 4967718 at *11 (E.D. Cal. Dec.1, 18 2010) (citing Desrosiers v. Sec‟y of Housing and Health Services, 846 F.2d 573, 577 (9th Cir. 19 1988)); see also McLain v. Astrue, 2011 WL 2174895 at *3 (C.D. Cal. June 2, 2011) (stating 20 “even where a claimant‟s limitations are entirely non-exertional, a vocational expert‟s 21 testimony is not required unless the ALJ determines that such non-exertional limitations are 22 „sufficiently severe so as to limit the range of work permitted by the claimant‟s exertional 23 limitation‟” where plaintiff had bipolar disorder with depression and a history of substance 24 abuse) (quoting Hoopai, 499 F.3d at 1076); Ross v. Comm‟r of Social Security, 2011 WL 25 1081910 at *5-*6 (E.D. Cal. Mar. 21, 2011) (finding that it was not error for the ALJ to rely 26 2 27 28 A determination at step two that a nonexertional limitation is severe does not require the ALJ to utilize a vocational expert at step five unless “there are significant and „sufficiently severe‟ non-exertional limitations not accounted for in the grid.” Hoopai, 499 F.3d at 1076. 3 1 on the grids without the testimony of a vocational expert in a case where plaintiff had bipolar 2 disorder and a substance abuse history that did not “significantly limit” the range of unskilled 3 work plaintiff could perform even though plaintiff was precluded from jobs that required 4 public contact); Ruiz v. Astrue, 2010 WL 3766335 at *4 (C.D. Cal. Sept. 15, 2010) (finding 5 the ALJ‟s application of the grids without a vocational expert proper where plaintiff suffered 6 from bipolar disorder and substance abuse and, though limited by nonexertional limitations to 7 unskilled work, was “no more than moderately limited in his ability to perform work-related 8 activities”). In this case, the ALJ found that because of “claimant‟s history of endocarditis and 9 Northern District of California hepatitis C virus, she is limited to light work. Additionally, if claimant stopped the substance 11 United States District Court 10 abuse, she would be mentally limited to simple, routine work due to bipolar disorder NOS.” 12 AR 14. Relying on the grids, the ALJ concluded that if Plaintiff “stopped the substance use, 13 considering the claimant‟s age, education, work experience, and residual functional capacity, 14 there would be a significant number of jobs in the national economy that the claimant could 15 perform.” AR 15. Decrosta contests the ALJ‟s use of the grids framework alone given that 16 Plaintiff‟s limitations are at least partly nonexertional. (Dkt. No. 23 at 4.) Defendant responds 17 that the ALJ‟s failure to call a vocational expert is not reversible legal error because Plaintiff‟s 18 nonexertional limitation to “„simple, routine work‟ did not significantly limit the range of 19 work represented by the grids” because the “grids represent unskilled jobs.” (Dkt. No. 25 at 20 3.) 21 The ALJ did find that absent substance abuse, Plaintiff “would not have the residual 22 functional capacity to perform the full range of light work.” AR 15. However, the ALJ 23 nonetheless concluded that “the additional limitations that would remain [absent drug use] 24 have little or no effect on the occupational base of unskilled light work.” AR 15 (emphasis 25 added). The ALJ thus determined that Plaintiff‟s nonexertional limitations were not severe 26 enough to significantly limit the job opportunities available to Plaintiff. This determination, if 27 proper, allows the ALJ to rely solely on the grids without the testimony of a vocational expert. 28 4 1 The question before the Court then is whether this conclusion is supported by substantial 2 evidence or based on legal error.3 3 The evidence in the record supports the ALJ‟s conclusion.4 In her decision, the ALJ 4 noted the opinion of Dr. Rudnick, a state agency medical consultant, that Plaintiff has only 5 mild to moderate limitations and that, absent drug use, Plaintiff “retains the capacity to attend 6 and concentrate for at least two hour periods and is able to complete a normal work schedule.” 7 AR 14. In addition, the ALJ cited other medical evidence from the record, including medical 8 records from May 31, 2007 in which “claimant‟s speech, mood, and affect . . . thought 9 pattern/content, cognitive function, orientation, attention, concentration, memory, and Northern District of California knowledge . . . impulse control, insight, and judgment” were all “within normal limits” after 11 United States District Court 10 claimant “may have briefly stopped drugs.” AR 12. To the extent that other evidence in the 12 record is in conflict with this finding, the ALJ specifically noted that she “considered all 13 [Plaintiff‟s] symptoms and the extent to which these symptoms can reasonably be accepted as 14 consistent with the objective medical evidence and other evidence.” AR 13. The Court 15 already reviewed and upheld the ALJ‟s evaluation of the record to determine Plaintiff‟s RFC. 16 (Dkt. No. 24 at 11-12.) Here, too, the Court finds that the ALJ‟s conclusion that Plaintiff‟s 17 nonexertional limitations were not significant or severe enough to impact Plaintiff‟s range of 18 acceptable work options as represented by the grids is supported by substantial evidence. It 19 was therefore not legal error for the ALJ to use the grids without calling a vocational expert. 20 21 CONCLUSION 22 For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiff's motion for 23 summary judgment in regard to Plaintiff‟s argument 3 (referenced in Dkt. No. 13 as 2) is 24 25 26 27 28 3 A district court may overturn a decision to deny benefits only if it is not supported by substantial evidence or if the decision is based on legal error. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); Magallenes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). 4 Defendant concedes that the ALJ cited Rule 202.21 in error as this Rule refers to “an individual who has skills that are not transferrable,” which is not applicable to this case. (Dkt. No. 25 at 3 n.2.) The Court agrees with Defendant that this error is harmless. 5 1 DENIED and Defendant‟s cross-motion for summary judgment in regard to Plaintiff‟s 2 argument 3 (referenced in Dkt. No. 19 as 2) is GRANTED. 3 4 5 IT IS SO ORDERED. Dated: January 6, 2012 _________________________________ JACQUELINE SCOTT CORLEY UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 Northern District of California United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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