Macy v. Commissioner Social Security Administration
Filing
23
OPINION AND ORDER. For the reasons stated above, the Commissioner's final decision denying benefits to plaintiff is AFFIRMED. This action is DISMISSED. IT IS SO ORDERED. Signed on 11/13/2012 by Judge Malcolm F. Marsh. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Case No. 3:11-cv-01075 -MA
TERESA MACY,
Plaintiff,
v.
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.
BRUCE W. BREWER
419 Fifth Street
Oregon City, OR 97045
Attorney for Plaintiff
S. AMANDA MARSHALL
United States Attorney
District of Oregon
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Ave., Suite 600
Portland, OR 97204-2902
LISA GOLDOFTAS
Special Assistant United States Attorney
Social Security Administratio n
Office of the General Counsel
701 Fifth Ave., Suite 2900, M/S 221A
Seattle, WA 98105-7075
Attorneys for Defendant
1 - OPINION AND ORDER
OPINION AND ORDER
MARSH, Judge
judicial
Plaintiff Teresa Macy seeks
decision
the
of
Commissioner
Security
Social
of
review of the
final
denying
her
application for disability insurance benefits (DIB) under Title II
of the Social Security Act, 42 U.S.C
jurisdiction pursuant to 42 U.S.C.
§
§§
401-403.
This Court has
For the reasons that
405(g).
follow, this court affirms the decision of the Commissioner.
FACTUAL AND PROCEDURAL BACKGROUND
filed
Plaintiff
Benefits
31,
March
an
application
on April 3,
(DIB)
The
2006.
reconsideration.
2006,
2008,
at
Insurance
denied
initially
and
on
Plaintiff filed a request for a hearing before an
administrative law judge (ALJ).
29,
Disability
alleging disability beginning
were
claims
for
which
plaintiff
An ALJ held a hearing on October
appeared
with
her
attorney
and
testified.
A Vocational Expert, Gary R. Jesky, also appeared and
testified.
On February 25,
decision.
The Appeals
2009,
the ALJ issued an unfavorable
Council denied plaintiff's
request
for
review.
Plaintiff then appealed to the District Court, which issued an
order reversing and remanding the case for further administrative
proceedings on September 24, .2010.
On remand, the ALJ was ordered
to reassess the lay testimony of Glenn Macy; reassess the opinion
of John E. Ellison, M.D.; reassess plaintiff's residual functional
2 - OPINION AND ORDER
and
capacity;
offer
plaintiff
the
for
opportunity
the
a
new
Tr. 287.
hearing.
Plaintiff
The ALJ conducted a new hearing on May 11, 2011.
appeared with counsel and testified, as did Vocational Expert C.
At the hearing, plaintiff amended her alleged onset date
Kay Wise.
of
unfavorable decision on May 19, 2011.
Therefore,
action.
ALJ' s
the
The ALJ issued a
2007.
23,
disability to October
May
second
Plaintiff timely filed this
is
decision
2011
19,
the
Commissioner 's final decision subject to judicial review.
Plaintiff was 53 years old at the time of the second hearing
and has completed the eleventh grade.
work
as
a
tavern
cook,
a
job
that
Plaintiff has past relevant
she
held
for
many
years.
Plaintiff contends that she is disabled due to history of stroke,
right shoulder pain,
low back pain with mild degenerative disc
disease, and obesity, among other symptoms.
THE ALJ'S DISABILITY ANALYSIS
The
Commissioner
has
established
a
five-step
sequential
process for determining whether a person is disabled.
Bowen v.
416.920.
Each step
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R.
is potentially dispositive.
at steps one through four.
Admin., 574 F.3d 685,
§
The claimant bears the burden of proof
See Valentine v.
Comm' r
Soc.
689 (9th Cir. 2009); Tackett v. Apfel,
F.3d 1094, 1098 (9th Cir. 1999).
Sec.
180
At step five, the burden shifts
to the Commissioner to show that the claimant can do other work
3 - OPINION AND ORDER
which exists in the national economy.
Andrews v. Shalala, 53 F.3d
1035, 1043 (9th Cir. 1995).
The
ALJ
concluded
that
plaintiff
met
the
insured
status
requirements of the Social Security Act through December 31, 2010.
A claimant seeking DIB benefits
under Title
II must
disability on or prior to the last date insured.
42
establish
u.s.c.
§
416(I) (3); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
At step one, the ALJ found that plaintiff has not engaged in
substantial gainful activity since her amended onset of disability
date (October 23, 2007) through her date last insured (December 31,
2010).
See 20 C.F.R. §§ 404.1520(b), 404.1571 et seq.
At step two, the ALJ found that plaintiff had the following
severe impairments:
history of stroke, right shoulder degenerative
joint disease status post right rotator cuff surgical repair, low
back pain with mild degenerative disc disease, and obesity.
See 20
C.F.R. § 404.1520(c).
At step three, the ALJ found that plaintiff's impairments, or
combination of impairments did not meet or medically equal a listed
impairment.
See 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526.
The ALJ assessed plaintiff with a residual functional capacity
(RFC) to perform a modified range of light work in that she is able
to lift and carry 10 pounds frequently and 20 pounds occasionally ,
can sit for six hours in an eight-hour day,
is restricted from
standing or waking more than two hours per day, and is limited to
4 - OPINION AND ORDER
only occasional reaching above shoulder height with the right upper
extremity.
See 20 C.F.R.
§§
404.1527, 404.1529.
the ALJ found plaintiff unable to perform any
At step four,
past relevant work.
See 20 C.F.R.
§
404.1565.
At step five, the ALJ concluded that considering plaintiff's
age, education, work experience, and residual functional capacity,
jobs exist in significant numbers in the national economy that the
See 20 C.F.R.
claimant can perform.
§§
404.1560(c),
404.1566.
Accordingly, the ALJ concluded that plaintiff is not disabled under
the meaning of the Act.
ISSUES ON REVIEW
On appeal to this court,
errors were committed:
(1)
plaintiff contends the following
the ALJ failed to find her depression
and anxiety severe at Step Two;
(2)
the ALJ failed to find her
impairments meet or equal a Listing at Step Three;
(3)
the ALJ
failed to properly evaluate the opinions of Leslee Carter, Ph.D.
and Dr. Ellison;
(4)
the ALJ failed to properly consider the lay
witness testimony; and (5)
the ALJ improperly relied on the VE's
testimony. 1
According to Local Rule 4000-3, plaintiff's opening brief
in a Social Security case is to "contain a statement of the
specific issues presented for judicial review in a separate
section under an appropriate heading." Plaintiff's opening brief
Plaintiff's counsel is strongly
fails to comply with this rule.
encouraged to comply with LR 4000-3 and all Local Rules in future
submissions.
1
5 - OPINION AND ORDER
STANDARD OF REVIEW
The district court must affirm the Commissione r's decision if
the Commissioner applied proper legal standards and the findings
are supported by substantial evidence in the record.
§
405(g); Andrews,
42
u.s.c.
"Substantial evidence means
53 F.3d at 1039.
more than a mere scintilla but less than a preponderanc e; it is
such
relevant
evidence
a
as
adequate to support a conclusion."
690.
mind
reasonable
might
Id.; Valentine,
accept
as
574 F. 3d at
The court must weigh all the evidence, whether it supports or
detracts from the Commissioner 's decision.
807 F.2d 771,
772
(9th Cir.
1986).
Martinez v. Heckler,
The Commissioner 's decision
must be upheld, even if the evidence is susceptible to more than
one rational interpretatio n.
Batson v.
Comm'r of Soc.
Security
Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Andrews, 53 F.3d at
1039-40.
If the evidence supports the Commissione r's conclusion,
the Commissioner must be affirmed; "the court may not substitute
its judgment for that of the Commissioner ."
Edlund v. Massanari,
253 F.3d 1152, 1156 (9th Cir. 2001); Batson, 359 F.3d at 1193.
DISCUSSION
I.
Step Two
Plaintiff argues that the ALJ erred in failing to find that
her depression and anxiety are severe impairments at Step Two.
the decision,
In
the ALJ concluded that plaintiff's depression and
anxiety are medically determinable impairments, but do "not cause
6 - OPINION AND ORDER
more than minimal limitation in [plaintiff's) ability to perform
Tr. 290.
basic mental work activities," and thus are nonsevere.
The ALJ noted that plaintiff "has taken anti-depress ant medication,
but has not received other forms of treatment or engaged in mental
health counseling."
Plaintiff appears to contend that the Step Two
finding is erroneous because the ALJ failed to properly consider
the opinion of Dr. Carter.
Plaintiff's argument fails.
The Step Two threshold is low.
At Step Two, the ALJ must determine whether a claimant has one or
more impairments that significantly limit his or her ability to
conduct basic work activities.
1003 (9th Cir. 2005);
Ukolov v. Barnhart, 420 F.3d 1002,
20 C.F.R. §§ 404.1520(c), 404.1521.
In this case, the ALJ resolved Step Two in plaintiff's favor,
concluding that plaintiff had demonstrated impairments (history of
stroke, right shoulder degenerative joint disease status post right
rotator cuff surgical repair, low back pain with mild degenerative
disc disease, and obesity) necessary to satisfy Step Two.
The ALJ
continued the sequential decision making process until reaching a
determination at Step Five.
Any error in failing to designate
plaintiff's anxiety as not severe did not prejudice her at Step
Two, as Step Two was resolved in her favor.
F. 3d 909,
severe
at
911
step
(9th Cir.
two
was
2007) (any failure
harmless
error
Lewis v. Astrue, 498
to list bursitis as
where
ALJ
considered
functional limitations of bursitis at step four); Burch, 400 F.3d
7 - OPINION AND ORDER
at
error
(any
682
omitting
in
from
obesity
list
severe
of
impairmen ts at step two was harmless because step two was resolved
Thus, any error in finding her depression
in claimant' s favor).
and anxiety non-sever e was harmless.
To the
extent
that
plaintiff
contends
the
ALJ
failed
to
consider her alleged mental limitation s in the RFC or failed to
Carter's opinion,
properly consider Dr.
See 20 C.F.R.
below.
I
address those issues
404.1523 (once claimant has surmounted Step
§
Two, the ALJ must consider the functiona l limitation s imposed by
all medically determina ble impairmen ts in the remaining steps of
the decision) .
II.
Step Three
At
Step Three,
the
ALJ concluded that
plaintiff
did
present medical evidence to meet or equal Listings 1. 02,
11.04
or
any other Listing.
I
reject
plaintiff 's
not
1. 04,
conclusory
argument that the ALJ erred by summarily finding that plaintiff has
not met a Listing at Step Three.
The record demonstra tes that the
ALJ thoroughly discussed the medical evidence at Step Two and again
when evaluating plaintiff 's RFC.
Moreover,
where
a
claimant
has
not
presented a
plausible
theory of how an impairmen t meets or equals a particula r Listing or
identified evidence that a Listing is satisfied, and the ALJ has
thoroughly evaluated the evidence, an extensive discussion of the
8 - OPINION AND ORDER
Listings is not required.
400 F.3d 676,
Burch,
683
(9th Cir.
2005); Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001).
In her briefing to this court, plaintiff has not identified
which particular Listing she purports to meet, nor has plaintiff
identified a plausible theory as to how her impairments combine to
equal a Listing impairment.
Accordingly, plaintiff has not met her
Burch, 400 F.3d at 683.
burden at Step Three.
I find no error in
the ALJ's Step Three analysis.
III. Plaintiff's RFC
Physician's Opinions
A.
is
given more
weight than the opinion of a non-treating physicians.
Turner v.
In general,
opinion
treating physician's
a
Commissioner of Soc. Security, 613 F. 3d 1217, 1223 (9th Cir. 2010);
Lester v.
Chater,
81 F. 3d 821,
830-31
(9th Cir.
treating physician's medical opinion is
1995).
If the
supported by medically
acceptable diagnostic techniques and is not inconsistent with other
substantial
evidence
in
the
record,
opinion is given controlling weight.
631
(9th Cir.
given
2007).
the
treating
physician's
Orn v. Astrue, 495 F.3d 625,
If a treating physician's opinion is not
controlling weight
because
it
is
not
well-supported,
or
because it is inconsistent with other substantial evidence in the
record,
the ALJ must still articulate the relevant weight to be
given to the opinion under the factors provided for in 20 C.F.R.
404.1527 (d) (2).
Id.
9 - OPINION AND ORDER
§
To
reject
the
examining physician,
uncontroverted
opinion
of
a
treating
or
the ALJ must present clear and convincing
Bayliss v.
reasons for doing so.
Barnhart,
427 F.3d 1211, 1216
(9th Cir. 2005); Rodriguez v. Bowen, 876 F.2d 759, 761-62 (9th Cir.
1989).
If a treating or examining doctor's opinion is contradicted
by another doctor's opinion,
legitimate reasons.
this
burden
Bayliss,
by providing a
conflicting medical evidence,
it may be rejected by specific and
427 F.3d at 1216.
An ALJ can meet
detailed summary of the
facts
and
stating his own interpretation of
that evidence, and making findings.
Tommasetti v. Astrue, 533 F. 3d
1035, 1041 (9th Cir. 2008); Carmickle v. Commissioner. Soc. Sec.
Admin., 533 F.3d 1155, 1164 (9th Cir. 2008); Magallanes v. Bowen,
881 F.2d 747, 751 (9th Cir. 1989).
1.
Dr. Carter
Plaintiff argues that the ALJ erred in assessing the opinion
of Dr. Carter, her treating psychologist.
According to plaintiff,
the ALJ erroneously rejected Dr. Carter's opinion that plaintiff
has severe mental issues which prevent her from working.
Dr. Carter met with plaintiff on October 25,
time a pain questionnaire was completed.
Tr. 253.
2006, at which
Dr. Carter's
notes reflect that plaintiff missed an appointment on December 7,
2006.
Dr.
Carter then
completed a
Mental Residual
Functional
Capacity Assessment questionnaire provided by plaintiff's attorney.
Tr. 264-66.
Dr. Carter did not date her signature, but the MRFC is
10 - OPINION AND ORDER
marked as received (presumably by plaintiff's counsel) on November
7,
2008.
Tr.
266.
In the 2008 MRFC,
Dr.
Carter opined that
plaintiff has suffered marked depression since her back injury in
2006.
Dr. Carter also opined that plaintiff is markedly limited
in the areas of attention and concentration for extended periods,
her
ability
to
perform activities
within
a
schedule,
and
her
ability to perform at a consistent pace due to her psychological
symptoms.
Tr. 265.
When considering plaintiff's RFC,
opinion
little
weight
because
it
the ALJ gave Dr. Carter's
was
based
on
plaintiff's
subjective complaints, was not supported by objective findings, and
was inconsistent with the record as a whole.
Tr. 293, 295.
I find
that the ALJ has provided clear, specific and legally sufficient
reasons for rejecting Dr. Carter's opinion.
Plaintiff
submits
that
the
ALJ
erroneously
rejected
Dr.
Carter's opinion because it was not based on objective findings.
Plaintiff argues that Dr. Carter was not required to support her
opinion with objective
findings
because
medically acceptable diagnostic tool."
"patient history is
Plaintiff's unsupported
contention is undermined by the regulations and case law.
~'
Bayliss,
opinions
based
427 F. 3d at 1217
on
subjective
clinical evidence); 20 C.F.R.
11 - OPINION AND ORDER
See,
(ALJ properly rejected doctors'
complaints
§
a
404.1508
and
not
supported
by
("A physical or mental
impairment
must
be
shown
by
signs,
symptoms,
and
laboratory
findings, not only by your statement of symptoms.").
As noted above, plaintiff appears to have had limited contact
with Dr. Carter, and Dr. Carter's treatment notes do not reveal any
clinical
findings,
and
opinion on this basis.
thus,
the
Moreover,
ALJ
properly
discounted
the
the ALJ properly rejected Dr.
Carter's opinion because it was based on plaintiff's discredited
subjective statements.
Notably, plaintiff does not challenge the
ALJ's adverse credibility finding.
a
doctor's
opinion
that
is
based
discredited subjective complaints.
Lastly,
that Dr.
whole.
To be sure, an ALJ may reject
on
an
claimant's
properly
Batson, 359 F.3d at 1195.
substantial evidence supports the ALJ's conclusion
Carter's opinion is inconsistent with the record as a
As the ALJ discussed, Dr. Carter's opinion that plaintiff
had difficulty with attention and concentration was inconsistent
with
the
testimony
of
plaintiff's
husband,
who
stated
that
plaintiff had no difficulty concentrating and does an excellent job
with written and verbal instructions.
Tr. 129,,295.
The ALJ also
noted that Dr. Carter's opinion that plaintiff was significantly
depressed was contrary to plaintiff's own hearing testimony, where
plaintiff described no limitations from depression.
And, as the
ALJ discussed, Dr. Carter's opinion that plaintiff suffers moderate
limitations in social interaction was undermined by plaintiff's
hearing testimony where she described regular, weekly outings with
12 - OPINION AND ORDER
friends.
The ALJ's findings are more than adequately supported by
substantial evidence in the record.
Batson,
359 F.3d at 1195;
I find the ALJ properly discounted Dr.
Morgan, 169 F.3d at 602,
Carter's opinion.
Dr. Ellison
2.
Dr, Ellison performed a comprehensiv e consultative orthopedic
examination
on
December
2008.
27,
Tr.
267-78.
Dr.
Ellison
conducted a number of range of motion and neurologic tests and
offered the following assessment and diagnoses:
chronic low back
pain radiating into right leg, with right lumbar scoliosis and a
history of degenerative disc disease; history of stroke, resolved;
hypertension ;
obesity;
GERD;
treatment; hyperlipidem ia.
chronic
depression
responding
to
Dr. Ellison also completed a Medical
Source Statement in which he opined that plaintiff is frequently
able to lift up to 10 pounds,
and occasionally lift up to 20
pounds; that plaintiff can sit for two hours and stand and walk for
10 minutes without interruption ; and that plaintiff can sit for
eight hours total,
stand for one hour in an eight hour work day,
2
and walk for one hour in an eight hour work day.
2
Tr. 273.
0n the Medical Source Statement completed by Dr. Ellison,
he indicated that plaintiff is able to stand and walk for one
Dr. Ellison indicated
minute in an eight hour day. Tr. 273.
immediately prior on the form that plaintiff could stand and walk
for 10 minutes without interruption. Thus, I find the ALJ's
interpretatio n of Dr. Ellison's opinion that plaintiff is able to
stand and walk for one hour in an eight hour day to be
Moreover, both parties have adopted the
Tr. 295.
reasonable.
13 - OPINION AND ORDER
The ALJ gave Dr.
Ellison's opinion "some weight."
The ALJ
adopted Dr. Ellison's opinion with respect to plaintiff's lifting
and sitting restrictions, and the ALJ interpreted the standing and
walking restrictions into the RFC that plaintiff is "restricted
from standing or walking for more than two hours per workday."
The
ALJ
rejected
Dr.
Ellison' s
limitations
concerning
certain
nonexertional limitations including the use of foot controls and
environmental limitations, such as humidity, wetness, fumes, dust,
odors, temperature, and vibration.
Plaintiff argues that the ALJ
failed to provide specific and legitimate reasons for discounting
Dr.
Ellison's opinion.
should
have
Plaintiff seemingly argues that the ALJ
interpreted
Dr.
limitations more restrictively.
Ellison's
standing
and
walking
I disagree.
The ALJ found Dr. Ellison's standing and walking restrictions
to be consistent with the record as a whole.
The ALJ detailed that
a two hour standing and walking restriction was consistent with the
objective medical evidence and plaintiff's testimony.
discussed,
As the ALJ
plaintiff's testimony concerning standing and walking
was conflicting, noting that plaintiff alternately described being
able to walk only one block and also being active for two hours
before needing to rest.
At the hearing, plaintiff testified that
she was regularly walking in the neighborhood and on a treadmill at
ALJ's interpretation of Dr. Ellison's Medical Source Statement.
See Plaintiff's Brief (ECF #18) p. 9; Defendant's Brief (ECF #19)
p. 11.
14 - OPINION AND ORDER
plaintiff
does
I
Thus,
determination.
find
the
credibility
adverse
ALJ's
the
challenge
not
Again, I note that
Tr. 343.
the gym in an effort to lose weight.
interpretation
ALJ' s
of
Dr.
Ellison's standing and walking restriction reasonable and supported
by substantial evidence.
Additionally,
walking
ALJ' s
the
is
restriction
that
conclusion
consistent
the
with
the
standing
objective
and
medical
evidence in the record also is supported by substantial evidence.
While plaintiff does have degenerative disc disease,
as the ALJ
noted she has reported waxing and waning symptoms of low back pain
through
the
years,
physical therapy.
indicated
and
Tr.
relatively
findings in 2008.
she
216,
mild
has
had
223,
success
with
Plaintiff's MRI' s
have
intermittent
227.
changes,
degenerative
with
no
new
Tr. 230.
Contrary to the plaintiff's suggestion,
the ALJ adequately
explained the rejection of the bulk of Dr. Ellison's nonexertional
limitations.
As the ALJ correctly noted,
Dr.
Ellison's Medical
Source Statement does not include any clinical findings to support
And, as the
the alleged nonexertional environmental limitations.
ALJ correctly noted, neither plaintiff's testimony nor her medical
records include complaints of exposure to dust, fumes, temperature
extremes, noise or vibration as opined by Dr. Ellison.
ALJ properly rejected the bulk of
limitations.
15 - OPINION AND ORDER
Dr.
Ellison's
Thus, the
nonexertional
As the ALJ correctly concluded, there is ample evidence in the
record
to
the
support
plaintiff's
over-the-shoulder
limitation with her upper right extremity.
reaching
Plaintiff underwent
surgery to repair a right rotator cuff tear and impingement in
Therefore,
2009.
the ALJ properly included this nonexertional
limitation into plaintiff's RFC.
In short, I find the ALJ has provided specific and legitimate
reasons
supported
by
substantial
evidence
in
the
record
for
partially rejecting Dr. Ellison's opinion.
IV.
Lay Witness Testimony
Lay witness testimony as to a claimant's symptoms or how an
impairment affects his ability to work is competent evidence, which
the ALJ must take into account.
1113,
1115
(9th
Cir.
2009);
See Bruce v. Astrue,
Stout
v.
Commissioner,
557 F.3d
Soc.
Sec.
Admin., 454 F.3d 1050, 1053 (9th Cir. 2006); Nguyen v. Chater, 100
F. 3d 1462, 1467 (9th Cir. 1996).
The ALJ is required to account
for competent lay witness testimony, and if it is rejected, provide
germane reasons for doing so.
Valentine, 574 F.3d at 694.
In this case the ALJ discounted the lay testimony of Glenn
Macy,
plaintiff's husband,
because it was inconsistent with the
evidence of record and contained internal inconsistencies.
detailed that Mr.
The ALJ
Macy indicated in his third party report that
plaintiff could no longer clean the house, do laundry, or walk the
dog.
Tr.
125.
The ALJ found this inconsistent with his later
16 - OPINION AND ORDER
statement that plaintiff did all of the house cleaning
(except
mopping the floors and scrubbing the tub) and all of the laundry.
Additionally,
the
ALJ
noted
that
Mr.
Macy's
plaintiff no longer is able to walk the dog
statement
that
inconsistent with
plaintiff's testimony that she walks the dog every day for 20 to 30
minutes.
And, the ALJ found Mr. Macy's description of plaintiff as
often sitting in a chair and watching television inconsistent with
plaintiff's many activities,
such as
driving
a
car,
shopping,
dusting, cleaning, going out with friends, and managing finances.
I conclude that these inconsistencies are supported by substantial
evidence,
and are germane to Mr.
Macy.
Accordingly,
error in the ALJ's assessment of the lay testimony.
I
find no
Valentine, 574
F. 3d at 694.
V.
VE Testimony at Step Five
At step five of the sequential evaluation, the burden shifts
to
the
Commissioner
to
establish
that
there
national economy that the claimant can do.
1043.
are
jobs
Andrews,
in
the
53 F.3d at
The ALJ must determine whether jobs exist in the national
economy that the claimant can perform despite his limitations and
restrictions.
Tackett, 180 F.3d at 1103-04.
The Commissioner can satisfy this burden in two ways:
( 1) by
the testimony of a vocational expert (VE); or (2) by reference to
the Medical-Vocational Guidelines (the "grids").
at 1100-01; 20 C.F.R. pt. 404, subpt. P, app.2.
17 - OPINION AND ORDER
Tackett, 180 F. 3d
"When the grids do
not completely describe the claimant's abilities and limitations,
such as when the claimant has both exertional and nonexertional
the grids are inapplicable and the ALJ must take
limitations,
Moore v. Apfel, 216 F.3d 864,
the testimony of a VE."
869
(9th
Cir. 2000); Thomas v. Barnhart, 278 F.3d 947, 960 (9th Cir. 2002).
In this case, at Step Five, the ALJ noted that plaintiff was
53 at the time of the ALJ's final decision, and thus was "a person
closely approaching advanced age" under the regulations.
§
The ALJ found that plaintiff's ability to perform
404.1563(d).
all
the
requirements
limitations.
20 C. F. R.
light
of
work
was
impeded by
additional
At the second hearing, the ALJ again took testimony
from a vocational expert.
At the hearing, the ALJ inquired of VE Wise whether there were
jobs that exist in national economy for a hypothetical individual
with the following limitations:
could lift 20 pounds occasionally
and 10 pounds frequently; and could stand or walk for a total of
six hours in a work day; sit for a total six hours in a work day;
and was limited to only occasional over-the-shoulder reaching with
the right upper extremity.
Vocational
Expert
Tr. 345.
Wise
testified
that
described a broad range of light duty work,
the
hypothetical
and agreed with the
testimony of the VE at the prior hearing that such jobs would
include small products assembly, cashier and courier.
The
ALJ
then
added
18 - OPINION AND ORDER
the
additional
restriction
Tr. 346.
that
the
hypothetical individual is limited in standing and walking to no
more than two hours in a work day.
Tr. 347.
VE Wise responded
that this restriction would rule out the courier position, but that
the cashier and small products assembly are "acceptable due to the
fact that they offer a sit, stand option."
Tr. 347.
Plaintiff contends that the ALJ erroneously applied the "light
work" grid instead of the "sedentary work" grid.
plaintiff,
because
the
sedentary
grid
directs
According to
a
finding
of
"disabled" under the Medical-Vocational Guidelines ("the grids"),
the ALJ erroneously sought testimony from a VE.
The Commissioner
responds that the ALJ properly relied upon the VE's testimony.
The
Commissioner is correct.
Under the regulations, light work "involves lifting no more
than 20 pounds at a time,
with frequent lifting or carrying of
objects weighing up to 10 pounds."
20 C.F.R.
§
404.1567(b).
If a
claimant has limited use of an upper extremity, the occupational
base pertaining to light work is eroded.
work
"involves
lifting no more
than
See SSR 83-12.
10
pounds
at
Sedentary
a
time
and
occasionally lifting or carrying articles ... Although a sedentary
job is defined as one which involves sitting, a certain amount of
walking
and
duties."
Here,
under
the
standing
20 C.F.R.
§
the ALJ's
is
necessary
in
carrying
out
job
404.1567(a).
lifting restrictions represent
regulations.
19 - OPINION AND ORDER
often
However,
the
plaintiff's
light work
additional
reaching restriction erodes the occupational base,
circumstances,
expert.
between
SSR
two
and in such
it is advisable that an ALJ consult a vocational
83-12
(where
categories,
a
ALJ
claimant's
should
exertional
consult
a
VE).
base
I
falls
am
not
convinced by plaintiff's argument that due to plaintiff's standing
and walking restrictions alone, the ALJ was required to apply the
sedentary occupational base. 3
To be
sure,
plaintiff's
lifting
restrictions fall in the light work category - a finding plaintiff
does not challenge.
Moreover, an ALJ may not rely on the grids if
a claimant's limitations do not fully fall within a given category.
Tackett, 180 F.3d at 1102 (an ALJ may rely upon the grids at Step
Five only when they "completely and accurately" represent all of a
claimant's limitations); accord Thomas, 278 F. 3d at 960; Moore, 216
F.3d at 864.
two grids,
As SSR 83-12 directs, where a claimant falls between
consultation with a VE is appropriate.
And finally,
plaintiff's over-the-shoulder reaching restriction, a nonexertional
limitation, indicated the need for VE testimony.
The evidence in
the record before me clearly supports the ALJ's decision to use a
VE, and that rational decision must be upheld.
3
Moore, 216 F.3d at
I note that at the first hearing, Vocational Expert Jesky
testified that plaintiff's standing and walking limitations
indicated an occupational base between sedentary and light work,
and identified the jobs of small products assembler and cashier
(DOT numbers 731.687-034 and 211.462-010 respectively) occurring
in significant numbers that could be performed.
Tr. 51, 53.
20 - OPINION AND ORDER
871.
Accordingly, I conclude that the ALJ did not err in relying
upon the VE's testimony.'
Therefore,
because
the
VE
identified
jobs
existing
in
significant numbers in the national economy that claimant could
perform
which
substantial
included
evidence
in
all
of
the
the
limitations
record,
the
ALJ' s
supported
Step
by
Five
determination is affirmed.
CONCLUSION
For
the
reasons
stated
above,
the
Commissioner's
decision denying benefits to plaintiff is AFFIRMED.
final
This action
is DISMISSED.
IT IS SO ORDERED.
DATED this ~day of NOVEMBER, 2012.
Malcolm F. Marsh
United States District Judge
4
Plaintiff also complains that the VE described that 50 to
60 percent of light jobs provide a sit/stand option, which
plaintiff contends is inconsistent with the DOT. A review of the
transcript reveals that the VE's statement was in response to a
question from plaintiff's attorney concerning light level jobs in
general, and was not in response to a hypothetical. Tr. 350. This
portion of the VE's testimony was inconsequential to the ultimate
nondisability determination, and has no impact my assessment of
the ALJ's Step Five determination. Molina v. Astrue, 674 F.3d
1104, 1122 (9th Cir. 2012).
21 - OPINION AND ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?