VANDEWALKER v. COLVIN
Filing
16
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 08/05/2015. Plaintiff has failed to establish grounds for relief. RECOMMENDED that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 12 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 14 ) be granted, and that this action be dismissed with prejudice.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
LORRAINE M. VANDEWALKER,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
1:13CV1126
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff,
Lorraine
M.
Vandewalker,
brought
this
action
pursuant to the Social Security Act (the “Act”) to obtain judicial
review of a final decision of Defendant, the Commissioner of Social
Security,
denying
Plaintiff’s
claim
for
Disability
Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Docket
Entry 2.)
The Court has before it the certified administrative
record (cited herein as “Tr. __”), as well as the parties’ crossmotions for judgment (Docket Entries 12, 14). For the reasons that
follow, the Court should enter judgment for Defendant.
I.
PROCEDURAL HISTORY
Plaintiff filed applications for DIB and SSI on May 13 and May
17, 2009, respectively, alleging a disability onset date of January
13, 2009. (Tr. 175-81, 182-89.) Upon denial of those applications
initially (Tr. 63-70, 71-78, 95-99) and on reconsideration (Tr. 7986, 87-94, 105-11, 112-20), Plaintiff requested a hearing de novo
before
an
Administrative
Law
Judge
(“ALJ”)
(Tr.
121-23).
Plaintiff, her attorney, and a vocational expert (“VE”) attended
the hearing.
(Tr. 36-62.)
By decision dated September 5, 2012,
the ALJ determined that Plaintiff did not qualify as disabled under
the Act.
(Tr. 20-31.)
On October 16, 2013, the Appeals Council
denied Plaintiff’s request for review (Tr. 1-4), making the ALJ’s
ruling the Commissioner’s final decision for purposes of judicial
review.
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Plaintiff] meets the insured status requirements of
the [] Act through March 31, 2014.
2.
[Plaintiff] has not engaged in substantial gainful
activity since January 13, 2009, the alleged onset date.
3.
[Plaintiff] has the following severe impairments:
calcaneal spurs on bilateral feet; lumbago; sciatica; and
obesity.
. . . .
4.
[Plaintiff] 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.
. . . .
5.
. . . [Plaintiff] has the residual functional
capacity to perform medium work . . . except for after 30
minutes on her feet, she can sit and rest for two minutes
or work while seated.
After 30 minutes of sitting,
[Plaintiff] has an opportunity to take a stretch break at
her workstations. She can frequently push and/or pull
with the bilateral lower extremit[i]es.
. . . .
2
6.
[Plaintiff] is capable of performing past relevant
work as a fast food services manager. This work does not
require the performance of work-related activities
precluded by [Plaintiff’s] residual functional capacity.
. . . .
In the alternative, considering [Plaintiff’s] age,
education, work experience, and residual functional
capacity, there are other jobs that exist in significant
numbers in the national economy that [Plaintiff] also can
perform.
. . . .
7.
[Plaintiff] has not been under a disability, as
defined in the [] Act, from January 13, 2009, through the
date of this decision.
(Tr. 25-31 (internal parenthetical citations omitted).)
II.
DISCUSSION
Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).
Hines v.
However, “the scope
of [the Court’s] review of [such a] decision . . . is extremely
limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
In
this case, Plaintiff has not shown entitlement to relief under the
extremely limited review standard.
A.
Standard of Review
“[C]ourts are not to try [a Social Security] case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974).
Instead,
the Court “must uphold the factual findings of the ALJ [underlying
the denial of benefits] if they are supported by substantial
evidence and were reached through application of the correct legal
3
standard.” Hines, 453 F.3d at 561 (internal brackets and quotation
marks
omitted).
“Substantial
evidence
means
‘such
relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.’”
Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir.
1992) (quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)).
“It consists of more than a mere scintilla of evidence but may be
somewhat less than a preponderance.”
Mastro v. Apfel, 270 F.3d
171, 176 (4th Cir. 2001) (internal citations and quotation marks
omitted).
“If there is evidence to justify a refusal to direct a
verdict were the case before a jury, then there is substantial
evidence.”
Hunter, 993 F.2d at 34 (internal quotation marks
omitted).
“In reviewing for substantial evidence, the [C]ourt should not
undertake
to
re-weigh
conflicting
evidence,
make
credibility
determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Social Security Commissioner].” Mastro, 270 F.3d at
176 (internal brackets and quotation marks omitted).
“Where
conflicting evidence allows reasonable minds to differ as to
whether
a
claimant
is
disabled,
the
responsibility
for
that
decision falls on the [Social Security Commissioner] (or the ALJ).”
Id. at 179 (internal quotation marks omitted).
“The issue before
[the reviewing court], therefore, is not whether [the claimant] is
disabled, but whether the ALJ’s finding that [the claimant] is not
disabled is supported by substantial evidence and was reached based
4
upon a correct application of the relevant law.”
Craig v. Chater,
76 F.3d 585, 589 (4th Cir. 1996).
When confronting that issue, the Court must take note that
“[a] claimant for disability benefits bears the burden of proving
a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),
and that, in this context, “disability” means the “‘inability to
engage in
any
substantial
gainful
activity
by
reason
of
any
medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months.’” Id.
(quoting
42
U.S.C.
§
423(d)(1)(A)).1
“To
regularize
the
adjudicative process, the Social Security Administration has . . .
detailed regulations incorporating longstanding medical-vocational
evaluation policies that take into account a claimant’s age,
education, and work experience in addition to [the claimant’s]
medical
condition.”
Id.
“These
regulations
establish
a
‘sequential evaluation process’ to determine whether a claimant is
disabled.”
Id. (internal citations omitted).
This sequential evaluation process (“SEP”) has up to five
steps:
“The claimant (1) must not be engaged in ‘substantial
gainful activity,’ i.e., currently working; and (2) must have a
1
The Act “comprises two disability benefits programs. [DIB] . . . provides
benefits to disabled persons who have contributed to the program while employed.
[SSI] . . . provides benefits to indigent disabled persons.
The statutory
definitions and the regulations . . . for determining disability governing these
two programs are, in all aspects relevant here, substantively identical.” Craig,
76 F.3d at 589 n.1 (internal citations omitted).
5
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
that the claimant does not possess the residual functional capacity
to (4) perform [the claimant’s] past work or (5) any other work.”
Albright v. Comm’r of the Soc. Sec. Admin., 174 F.3d 473, 475 n.2
(4th Cir. 1999).2
A finding adverse to the claimant at any of
several points in the SEP forecloses an award and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied.
The second step determines if the
claimant is ‘severely’ disabled.
If not, benefits are denied.”
Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, the “claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”
Id. at 179.3
Step four then requires the ALJ to assess
2
“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
3
“RFC is a measurement of the most a claimant can do despite [the claimant’s]
limitations.” Hines, 453 F.3d at 562 (noting that administrative regulations
require RFC to reflect claimant’s “ability to do sustained work-related physical
and mental activities in a work setting on a regular and continuing basis . . .
[which] means 8 hours a day, for 5 days a week, or an equivalent work schedule”
(internal emphasis and quotation marks omitted)).
The RFC includes both a
“physical exertional or strength limitation” that assesses the claimant’s
6
whether, based on that RFC, the claimant can perform past relevant
work; if so, the claimant does not qualify as disabled.
179-80.
Id. at
However, if the claimant establishes an inability to
return to prior work, the analysis proceeds to the fifth step,
whereupon the ALJ must decide “whether the claimant is able to
perform other work considering both [the claimant’s RFC] and [the
claimant’s] vocational capabilities (age, education, and past work
experience) to adjust to a new job.”
Hall, 658 F.2d at 264-65.
If, at this step, the Commissioner cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other
jobs
available
disabled.
in
the
community,”
the
claimant
qualifies
as
Hines, 453 F.3d at 567.4
B.
Assignments of Error
Plaintiff contends that the Court should overturn the ALJ’s
finding of no disability on these grounds:
“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as
“nonexertional limitations (mental, sensory, or skin impairments).” Hall, 658
F.2d at 265. “RFC is to be determined by the ALJ only after [the ALJ] considers
all relevant evidence of a claimant’s impairments and any related symptoms (e.g.,
pain).” Hines, 453 F.3d at 562-63.
4
A claimant thus can establish disability via two paths through the SEP. The
first path requires resolution of the questions at steps one, two, and three in
the claimant’s favor, whereas, on the second path, the claimant must prevail at
steps one, two, four, and five. Some short-hand judicial characterizations of
the SEP appear to gloss over the fact that an adverse finding against a claimant
on step three does not terminate the analysis. See, e.g., Hunter, 993 F.2d at
35 (“If the ALJ finds that a claimant has not satisfied any step of the process,
review does not proceed to the next step.”).
7
1) the ALJ’s finding that Plaintiff “can stand and walk for
thirty minutes, and can sit for thirty minutes . . . [is] not
supported by substantial evidence” (Docket Entry 13 at 3);
(2) because “[t]he ALJ found that [Plaintiff’s] pain testimony
was credible, . . . the ALJ’s finding that [Plaintiff] can do the
medium
work
described
in
the
RFC
finding
is
not
based
on
substantial evidence” (id. at 4);
(3)
substantial
evidence
fails
to
support
the
ALJ’s
categorizing of Plaintiff’s past relevant work as a “fast food
services manager” (id. at 5); and
(4)
“[t]he ALJ erred by finding that [Plaintiff’s] obesity
did not affect her RFC” (id. at 8).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.
1.
(Docket Entry 15 at 4-13.)
RFC
In
Plaintiff’s
first
and
second
issues
on
review,
she
challenges the ALJ’s RFC determination and resulting hypothetical
questions to the VE. (Docket Entry 13 at 3-5.) More specifically,
Plaintiff deems this case “extremely rare,” because the ALJ found
that Plaintiff gave credible pain testimony and thus that she
prevailed at both parts one and two of the subjective complaints of
pain analysis set forth by the regulations and Craig, 76 F.3d at
594-95.
(Docket Entry 13 at 2 (citing Tr. 29).)
Given that the
ALJ found Plaintiff credible, Plaintiff asserts the ALJ erred by
8
not
incorporating
into
the
RFC
and
hypothetical
questions
Plaintiff’s testimony that she can stand and sit for only 20
minutes at a time and that she cannot lift 50 pounds.
3-5 (citing Tr. 44, 54).)
(See id. at
Plaintiff’s argument on these points
falls short.
Plaintiff’s contentions fail, because she selectively chose
language from the ALJ’s decision appearing to find Plaintiff’s pain
testimony
credible,
credibility
while
statements
by
glossing
the
ALJ
over
or
which
do
ignoring
not
other
permit
the
conclusion that the ALJ found Plaintiff’s pain testimony fully
credible.
Plaintiff relies on the ALJ’s statements that he “found
[Plaintiff’s] testimony regarding her pain and limitations to be
credible and accommodated those limitations in the [RFC]” (Tr. 29),
and that, “[a]fter a careful review of the medical evidence and
[Plaintiff’s] testimony, [he has] found [Plaintiff’s] allegations
generally credible, but her limitations do not rise to a disabling
level under the regulations” (Tr. 28 (emphasis added)).
Entry 13 at 4-5.)
(Docket
First, the ALJ’s statement that he found
Plaintiff “generally credible” but did not find her limitations
“disabling” (Tr. 28 (emphasis added)) does not support the notion
that the ALJ found Plaintiff fully credible.
Further, Plaintiff
does not mention the ALJ’s finding that Plaintiff’s medically
determinable impairments “could reasonably be expected to cause the
alleged symptoms” (part one of the Craig analysis), but that
9
Plaintiff’s “statements concerning the intensity, persistence and
limiting effects of [her] symptoms are not credible to the extent
they are inconsistent with the [RFC] (part two of the Craig
analysis).”
(Tr. 27 (emphasis added).)
The United States Court of Appeals for the Fourth Circuit
recently decided Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015),
which found erroneous an ALJ’s reliance on the “boilerplate”
language, used here by the ALJ, that “‘the claimant’s statements
concerning the intensity, persistence and limiting effects of [her]
symptoms are not credible to the extent they are inconsistent with
the above [RFC] assessment,’” id. at 639.5
However, the court
concluded that the ALJ’s use of such language would nevertheless
constitute
harmless
error
credibility elsewhere.”
if
the
ALJ
had
“properly
analyzed
Id.
Here, the ALJ’s use of the boilerplate language found improper
by Mascio remains harmless error for two reasons.
described
above, the
Plaintiff’s
ALJ
credibility
to
did
not
the
restrict
language
his
First, as
assessment of
condemned
by
Mascio.
Although the ALJ’s varying ways of describing his assessment of
Plaintiff’s credibility do not constitute a model of clarity, such
descriptions, read together, show that the ALJ found Plaintiff’s
symptom reporting only partially credible.
5
The Fourth Circuit joined the Seventh Circuit in holding that this language
“‘gets things backwards’ by implying ‘that ability to work is determined first
and is then used to determine the claimant’s credibility.’” Mascio, 780 F.3d at
639 (quoting Bjornson v. Astrue, 671 F.3d 640, 645 (7th Cir. 2012)).
10
Second, the ALJ otherwise supported his credibility analysis
with substantial evidence.
For example, to support the ALJ’s
finding that Plaintiff could stand or walk for 30 minutes without
a break, he relied on Plaintiff’s testimony that she could walk
about three miles.
(See Tr. 28; see also Tr. 43 (containing
Plaintiff’s testimony that she could walk three miles).) Moreover,
no medical source of record restricted Plaintiff to less than 30
minutes of standing and walking, and both state agency consultants
found her capable of standing and walking for up to six hours in an
eight-hour workday without breaks beyond those typically allowed in
a work setting. (See Tr. 76, 84; see also Tr. 28 (ALJ’s discussion
of opinion evidence).)
Moreover,
Plaintiff’s portrayal
of
her
hearing
testimony
regarding her ability to stand and walk (see Docket Entry 13 at 34) does not provide the full picture of her statements in that
regard.
As argued by the Commissioner, Plaintiff gave “ambiguous
and inconsistent hearing testimony” regarding her ability to stand
(or remain on her feet generally).
(Docket Entry 15 at 8.)
Plaintiff’s conflicting statements included that she “couldn’t
stand for like an hour or two” (Tr. 42), that she could “walk close
to three miles” (Tr. 43), and that she could stand next to the
stove and cook “say about less than 30 minutes sometimes” (Tr. 44).
Compounding that inconsistency, Plaintiff changed her testimony
11
regarding her ability to stand and walk after suggestive prompting
by her counsel:
COUNSEL:
. . . [W]hen you just told [the] judge
you clean your house, is it something
that you can get up and just do all day,
or do you have to take breaks?
PLAINTIFF:
I have to take breaks.
COUNSEL:
How often do you take a break?
PLAINTIFF:
I take about mostly all day, about 20
minutes. Each few hours, I have to take
a break. I can’t do it for long periods
of time.
COUNSEL:
Okay, do you take a 20 minute break, or
do you take a break about every 20
minutes?
PLAINTIFF:
Like every 20 minutes, usually.
COUNSEL:
Okay, so you can work for 15, 20 minutes,
then you take a break?
PLAINTIFF:
Yes.
(Tr. 46-47 (emphasis added).)
Thus, the ALJ’s decision to find
Plaintiff capable of remaining on her feet for 30 minutes before
resting or sitting down (Tr. 26) constitutes a reasonable middle
ground
between
the
extremes
of
Plaintiff’s
widely
divergent
testimony.
Plaintiff additionally challenges the ALJ’s finding that,
“[a]fter
30
minutes
of
sitting,
[Plaintiff
would
need]
an
opportunity to take a stretch break at her workstation” (id.). (See
Docket Entry 13 at 4.) According to Plaintiff, she “misspoke” when
she testified that she “can sit [at her computer] for at least 20
12
minutes, and I have to get up and move a little bit” (Tr. 44
(emphasis added)), because “her statement makes sense only if ‘at
least’ means ‘at most’” (Docket Entry 13 at 4).
Plaintiff’s
argument,
the
context
of
her
Contrary to
testimony
does
not
establish that she meant “at most 20 minutes” rather than “at least
20 minutes.”
The full question and answer at issue read as
follows:
ALJ:
What about sitting?
Do you have any
problems just sitting?
PLAINTIFF:
Sitting is the hardest. I sit in front
of the computer sometimes.
I have to
look up things or I do things on the
computer, and I can sit there for at
least 20 minutes, and I have to get up
and move a little bit.
(Tr. 44.)
Nothing about this exchange compels the Court to
conclude that Plaintiff actually meant “at most.”
Moreover, the ALJ supported his finding regarding Plaintiff’s
ability to sit with the observation that, “[a]lthough the hearing
was only a snapshot, [Plaintiff] sat for about 30 minutes in no
apparent distress.”
(Tr. 29.)
Further, no medical source in the
record restricted Plaintiff to 20 minutes of sitting at one time,
and both state agency consultants found that Plaintiff could sit
for six hours in an eight-hour workday without the need for breaks
beyond those typically permitted in a work setting.
(See Tr. 76,
84; see also Tr. 28 (ALJ’s discussion of opinion evidence).)
13
With regards to her exertional level, Plaintiff disputes the
ALJ’s finding that Plaintiff can perform medium work, i.e., lift
and
carry
up
to
50
pounds
§§ 404.1567(c), 416.967(c).
occasionally,
see
(Docket Entry 13 at 4-5.)
20
C.F.R.
Plaintiff
contends that the ALJ should have credited her testimony that her
prior work as a “shift runner” for a pizza delivery chain required
her, at times, to lift 50 pounds, and that she could no longer lift
that much weight.
(Id. (citing Tr. 54.).)
As detailed above, the ALJ found Plaintiff’s testimony only
partially credible (see Tr. 27, 28) and further supported his
finding regarding Plaintiff’s exertional capability by noting her
testimony
that
she
did
not
have
much
weakness
in
her
upper
extremities (see Tr. 28; see also Tr. 44 (reflecting Plaintiff’s
testimony regarding upper extremity weakness).
Additionally, as
discussed by the ALJ, both state agency consultants found Plaintiff
capable of lifting 50 pounds (medium exertion).
(See Tr. 28; see
also Tr. 76, 84.)
In
sum,
determination.
substantial
evidence
supports
the
ALJ’s
RFC
By extension, the ALJ did not err in omitting
Plaintiff’s claimed limitations from the hypothetical questions to
the VE.
Fisher v. Barnhart, 181 F. App’x 359, 364 (4th Cir. 2006)
(“[A] hypothetical question is unimpeachable if it ‘adequately
reflect[s] a[n] [RFC] for which the ALJ had sufficient evidence.’”
(quoting Johnson v. Barnhart, 434 F.3d 650, 659 (4th Cir. 2005))).
14
2. Past Relevant Work
Next, Plaintiff asserts that the ALJ erred by finding that
Plaintiff could perform her PRW as a fast food services manager,
“because [Plaintiff] never held such a job.”
(Docket Entry 13 at
6 (citing Tr. 29).) Plaintiff maintains that the VE concluded that
her prior work “was an amalgam of two jobs: fast food [services]
manager (light [exertion]) and fast food cook (medium [exertion])”
(id. (citing Tr. 55)), and that she can no longer lift 50 pounds as
required by medium work (id. (citing Tr. 54)).
Thus, Plaintiff
argues that “she cannot return to [her shift runner] job as [she
actually] performed [it,] [a]nd since the job does not exist in the
DOT [Dictionary of Occupational Titles],” no possibility exists
that she could return to such a job as generally performed.
(Id.
at 7 (emphasis omitted).) According to Plaintiff, “PRW consists of
a claimant’s entire past ‘position,’ [and] not every single one of
the past job’s constituent parts.”
(Id. at 8 (emphasis omitted).)
Although Plaintiff’s contentions regarding her PRW have merit, the
ALJ’s error remains harmless where Plaintiff has not challenged the
ALJ’s alternative step five finding that other jobs exist in
significant numbers in the national economy that Plaintiff can
perform (Tr. 29-31).
(See Docket Entry 13 at 3-9.)
The United States Court of Appeals for the Ninth Circuit
addressed an analogous situation in Carmickle v. Commissioner, Soc.
Sec. Admin., 533 F.3d 1155 (9th Cir. 2008).
15
The court found error
in the ALJ’s determination at step four and held, in pertinent
part, as follows:
The DOT is “the best source for how a job is generally
performed.” Pinto v. Massanari, 249 F.3d 840, 845 (9th
Cir. 2001). In classifying prior work, the agency must
keep in mind that every occupation involves various tasks
that may require differing levels of physical exertion.
It is error for the ALJ to classify an occupation
“according to the least demanding function.” Valencia v.
Heckler, 751 F.2d 1082, 1086 (9th Cir. 1985). Here, the
ALJ did just that. Only 20 percent of [the plaintiff’s]
duties as a construction supervisor involved supervision.
The remainder of his time was spent performing manual
labor.
Yet the VE’s classification, which the ALJ
accepted, was a purely supervisory position.
Carmickle, 533 F.3d at 1166.
Similarly,
in
this
case,
Plaintiff
indicated
that
the
supervisory aspects of her shift runner job took up about 25% of
her work time, with the remainder of her time involving the tasks
of
unloading
pizzas.
the
ALJ
trucks,
(Tr. 203.)
erred
by
taking
customers’
orders,
and
preparing
Under the persuasive authority of Carmickle,
relying
upon
the
VE’s
categorization
of
Plaintiff’s prior work as “fast food services manager,” where that
job captured only the non-predominant, supervisory aspects of
Plaintiff’s shift runner job.6
6
Some cases hold that a claimant’s failure to challenge the VE’s classification
of the claimant’s prior work can result in waiver of the ability to raise such
an issue on judicial review. See, e.g., Wegner v. Colvin, No. EDCV 13–0634–JPR,
2014 WL 1430955, at *10 (C.D. Cal. Apr. 14, 2014) (unpublished) (“[T]he ALJ’s
reliance on the VE’s testimony was reasonable, especially in light of Plaintiff’s
failure at the hearing to object to the VE’s categorization of his past work,
question the VE about her opinion regarding Plaintiff’s past relevant work, or
even point out the contradictory state-agency decision guide.”) (citing Solorzano
v. Astrue, No. EDCV 11–369–PJW, 2012 WL 84527, at *6 (C.D. Cal. 2012)
(unpublished)). Here, Plaintiff failed to challenge at the hearing the VE’s
classification of Plaintiff’s prior work as a combination of “fast food services
16
Nevertheless, Plaintiff has failed to challenge the ALJ’s
alternative step five finding that other jobs exist in significant
numbers in the national economy that Plaintiff can perform (Tr. 2931).
(See Docket Entry 13 at 3-9.)
Accordingly, “[a]lthough the
ALJ’s step four determination constitutes error, it is harmless
error in light of the ALJ’s alternative finding at step five.”
Tommasetti v. Astrue, 533 F.3d 1035, 1042 (9th Cir. 2008); accord
Bradberry v. Colvin, No. 5:12-CV-190-D, 2012 WL 4776530, at *9
(E.D.N.C. Sept. 6, 2013) (unpublished).
Accordingly, the Court should reject Plaintiff’s assignment of
error regarding PRW.
3.
Obesity
Finally, Plaintiff claims that, given the ALJ’s finding that
Plaintiff’s obesity constituted a severe impairment at step two
(see
Tr.
25),
the
ALJ
erred
by
failing
“to
explain
how
[Plaintiff’s] obesity affected her ability to work, or how it
factored into her RFC” (Docket Entry 13 at 8-9).
Plaintiff,
“it
is
scarcely
conceivable
that
According to
[her]
pain
from
standing and walking — pain caused in part by her heel spurs — is
not aggravated by the additional pressure exerted by her excess
weight.”
(Id. at 9.)
Plaintiff’s argument on this point provides
no basis for relief.
manager” and “fast food cook.” (Tr. 54-55, 58-60.) The Court need not address
this issue, however, given the harmlessness of the ALJ’s step four error.
17
Contrary to Plaintiff’s assertions, the ALJ did explain his
finding that Plaintiff’s obesity neither constituted a disabling
impairment nor “preclude[d] [her from] performing a reduced range
of medium exertion [work].”
(Tr. 28.)
First, the ALJ properly
noted in his decision that he “fully considered SSR 02-1p [Titles
II and XVI: Evaluation of Obesity, 2002 WL 34686281, at *4-6 (Sept.
12, 2002)],” which requires ALJs to consider a claimant’s obesity
at all stages of the SEP.
(Tr. 26.)
The ALJ went on to explain:
The record establishes that [Plaintiff] was obese. Her
weight ranged from 198 to 211 pounds. At a height of 62
inches, her body mass index ranged from 36 to 38.
However, [Plaintiff’s] testimony and reports reflected
that she was able to cook, help with household chores,
shop, and help care for her grandson. She was encouraged
by her primary care physician to lose weight, and her
weight decreased from 210 to 198 from August 2011 to
March 2012. Moreover, examinations showed that her range
of motion was generally normal. Therefore, the record
did not show that [Plaintiff’s] weight was itself
disabling or that it aggravated her other impairments to
preclude performing a reduced range of medium exertion
[work].
(Tr. 28 (citing Tr. 206-13, 243-75).)
This explanation identifies
substantial evidence that supports the ALJ’s finding regarding
Plaintiff’s obesity.
In addition, no medical provider of record has opined that
Plaintiff’s obesity reduces her capacity to work below the medium
level of exertion, and both state agency consultants found that
Plaintiff, despite her obesity, retained the ability to perform
medium work.
(See Tr. 76, 84.)
Moreover, Plaintiff has not argued
18
how her obesity should result in greater limitations than those
reflected in her RFC.
(See Docket Entry 13 at 8-9.)
Under these circumstances, Plaintiff’s final assignment of
error fails as a matter of law.
III.
CONCLUSION
Plaintiff has failed to establish grounds for relief.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Judgment on
the
Pleadings
(Docket
Entry
12)
be
denied,
that
Defendant’s Motion for Judgment on the Pleadings (Docket Entry 14)
be granted, and that this action be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
August 5, 2015
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