Bartlett v. Commissioner Social Security Administration

Filing 25

Opinion and Order. Based on this Opinion and Order, the decision of the Commissioner is AFFIRMED. Please access entire text by document number hyperlink. Signed on 06/03/2021 by Magistrate Judge Mark D. Clarke. (rsm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

DENISE MARIE B., 1
Plaintiff,

v.

Civ. No. 3:19-cv-01620-CL
OPINION AND ORDER

COMMISSIONER OF SOCIAL SECURITY
ADMINISTRATION,
Defendant.

MARK D. CLARKE, Magistrate Judge.
Plaintiff Denise Marie B. ("Plaintiff'') seeks judicial review of the final decision of the
Commissioner of the Social Security Administration denying her claim for disability insurance
benefits under Social Security Act. For the reasons provided below, the Commissioner's
decision is AFFIRMED. 2

1

1n the interest of privacy, this Opinion and Order uses only the first name and the initial of the last name
of the non-governmental party or parties in this case.
2
The parties have consented to Magistrate Judge jurisdiction over this action pursuant to 28 U.S.C. §
636(c)(l).
l - Opinion and Order

BACKGROUND
Plaintiff was born in 1956 and was 55 years old on the date of her alleged onset of
disability. Tr. 13 8. She alleges that she became disabled on December 31, 2011, following a
motor vehicle accident and due to trigeminal neuralgia, an ongoing pain condition that affects
certain nerves in the face, complicated by multiple left temporal craniotomies. Tr. 15. Plaintiff
also has a history of cervical strain and lateral epicondylitis, also known as "tennis elbow." Tr.
15. Plaintiff has a high school education and worked as a florist for many years. Tr. 50.
Plaintiff applied for disability benefits on July 18, 2016. Her application was denied
initially and upon reconsideration. Tr. 138-39, 86, 93. Plaintiff requested a hearing and
appeared before an Administrative Law Judge ("ALJ") on July 17, 2018. Tr. 29-58. The ALJ
issued an unfavorable decision on September 11, 2018. Tr. 10-26. Plaintiff appealed the
decision and was denied by the Appeals Council, making the ALJ's decision the final decision of
the Commissioner. This appeal followed.

DISABILITY ANALYSIS
A claimant is disabled if he or she is unable to "engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which ... has lasted or
can be expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C.
§ 423(d)(l)(A). "Social Security Regulations set out a five-step sequential process for
determining whether an applicant is disabled within the meaning of the Social Security Act."

Keyser v. Comm 'r. Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Each step is potentially
dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks
the following series of questions:
1.

Is the claimant performing "substantial gainful activity"? 20 C.F.R.
§§ 404.1520(a)(4)(i); 416.920(a)(4)(i). This activity is. work involving

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significant mental or physical duties done or intended to be done for pay or
profit. 20 C.F.R. §§ 404.1510; 416.910. lfthe claimant is performing such
work, she is not disabled within the meaning of the Act. 20 C.F .R.
§§ 404.1520(a)(4)(i); 416.920(a)(4)(i). If the claimant is not performing
substantial gainful activity, the analysis proceeds to step two.
2.

Is the claimant's impairment "severe" under the Commissioner's
regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). Unless
expected to result in death, an impairment is "severe" if it significantly
limits the claimant's physical or mental ability to do basic work activities.
20 C.F.R. §§ 404.1521(a); 416.92l(a). This impairment must have lasted or
must be expected to last for a continuous period.of at least 12 months. 20
C.F.R. §§ 404.1509; 416.909. If the claimant does not have a severe
impainnent, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(ii);
416.920(a)(4)(ii). If the claimant has a severe impairment, the analysis
proceeds to step three.

3.

Does the claimant's severe impairment "meet or equal" one or more of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, then
the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii);
416.920(a)(4)(iii). lfthe impairment does not meet or equal one or more of
the listed impairments, the analysis proceeds to the "residual functional
capacity" ("RFC") assessment.
a. The ALJ must evaluate medical and other relevant evidence to assess
and detem1ine the claimant's RFC. This is an assessment of workrelated activities that the claimant may still perform on a regular and
continuing basis, despite any limitations imposed by his or her
impairments. 20 C.F.R. §§ 404.1520(e); 404.1545(b)-(c); 416.920(e);
416.945(b)-(c). After the ALJ determines the claimant's RFC, the
analysis proceeds to step four.

4.

Can the claimant perform his or her "past relevant work" with this RFC
assessment? If so, then the claimant is not disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). lfthe claimant cannot perform his
or her past relevant work, the analysis proceeds to step five.

5.

Considering the claimant's RFC and age, education, and work experience,
is the claimant able to make an adjustment to other work that exists in
significant numbers in the national economy? If so, then the claimant is not
disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v); 404.1560(c);
416.960(c). If the claimant cannot perform such work, he or she is disabled.

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See also Bustamante v. Massanari, 262 F.3d 949, 954-55 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Id. at 954. The
Commissioner bears the burden of proof at step five. Id. at 953-54. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant
numbers in the national economy, "taking into consideration the claimant's residual functional
capacity, age, education, and work experience." Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir.
1999) (internal citations omitted); see also 20 C.F.R. §§ 404.1566; 416.966 (describing "work
which exists in the national economy"). If the Commissioner fails to meet this burden, the
claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the
C01mnissioner proves that the claimant is able to perform other work existing in significant
numbers in the national economy, the claimant is not disabled. Bustamante, 262 F .3d at 954-55;

Tackett, 180 F.3d at 1099.
THE ALJ'S FINDINGS
Applying the above analysis, the ALJ made the following findings:
1. Plaintiff last met the insured status requirements of the Act on December 31, 2016.
Plaintiff did not engage in substantial gainful activity during the period from her alleged
onset date of December 31, 2011 through her date last insured of December 31, 2016.
Tr. 15.
2. Through the date last insured, Plaintiff had the following severe impairments: history
of trigeminal neuralgia complicated by repeat left temporal craniotomy, history of a
cervical strain and lateral epicondylitis on the right. Tr. 15.
3. Through the date last insured, Plaintiff did not have an impairment or combination of
impairments that met or medically equaled the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1. Tr. 16.
4. Plaintiff had the residual functional capacity to perfonn light work as defined in 20
CFR 404.1567(b) except she was further limited to no more than occasional kneeling,
balancing, or climbing oframps and stairs. The claimant would need to avoid climbing
ropes, ladders or scaffolds, and she would need to avoid all exposure to unprotected
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heights, moving machinery and similar hazards. The claimant would need to avoid
concentrated exposure to. temperature extremes, and she should avoid environments
where there is a high volume of noise produced by machines or people. Tr. 16.
5. Through the date last insured, Plaintiff was unable to perform past relevant work. Tr.
20.
6. Plaintiff was born on October 27, 1956, and was 60 years old, which is defined as an
individual closely_ approaching retirement age, on the date last insured. Tr. 20.
7. Plaintiff has at least a high school education and is able to communicate in English. Tr.
20.
8. Plaintiff has acquired work skills from past relevant work. Tr. 20.
9. Considering Plaintiffs age education, work experience, and residual functional
capacity, the claimant had acquired work skills from past relevant work that were
transferable to other occupations with jobs existing in significant numbers in the
national economy. Tr. 20.
10. Plaintiff was not under a disability, as defined in the Social Security Act, at any time
from December 31, 2011, the alleged onset date, through December 31, 2016, the date
last insured.
STANDARD OF REVIEW

The reviewing court must affirm the Commissioner's decision if it is based on the proper
legal standards and the legal findings are supported by substantial evidence in the record. 42
U.S.C. § 405(g); Batson v. Comm 'r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); see

also Hammock v. Bowen, 879 F .2d 498, 501 (9th Cir. 1989). "'Substantial evidence' means
'more than a mere scintilla but less than a preponderance,' or more clearly stated, 'such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion."' Bray v.

Comm 'r Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53
F.3d 1035, 1039 (9th Cir. 1995)). In reviewing the Commissioner's alleged errors, this Court
must weigh "both the evidence that supports and detracts from the [Commissioner's]
conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Variable interpretations

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of the evidence are insignificant if the Commissioner's interpretation is rational. Burch v.
Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

Where the evidence before the ALJ is subject to more than one rational interpretation, the
Commissioner's conclusion must be upheld. Batson, 359 F.3d at 1198 (citing Andrews, 53 F.3d
at 1041). "However, a reviewing court must consider the entire record as a whole and may not
affirm simply by isolating a 'specific quantum of supporting evidence."' Robbins v. Soc. Sec.
Admin., 466 FJd 880, 882 (9th Cir. 2006) (quoting Hammock, 879 F.2d at 501). Additionally, a

reviewing court "cannot affinn the [Commissioner's] decision on a ground that the
[Administration] did not invoke in making its decision." Stout v. Comm 'r Soc. Sec. Admin., 454
F.3d 1050, 1054 (9th Cir. 2006) (citations omitted). Finally, a court may not reverse the
Commissioner's decision on account of an error that is harmless. Id. at 1055-56. "[T]he burden
of showing that an error is hannful normally falls upon the party attacking the agency's
detem1ination." Shinseki v. Sanders, 556 U.S. 396, 409 (2009).
Even where findings are supported by substantial evidence, "the decision should be set
aside if the proper legal standards were not applied in weighing the evidence and making the
decision." Flake v. Gardner, 399 F.2d 532,540 (9th Cir. 1968). Under sentence four of 42
U.S.C. § 405(g), the reviewing court has the power to enter, upon the pleadings and transcript
record, a judgment affirming, modifying, or reversing the decision of the Commissioner, with or
without remanding the case for a rehearing.
DISCUSSION
Plaintiff presents the following issues for review:
I. Whether the ALJ erred by determining that Plaintiff had transferable skills from her past
work as a florist.

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2. Whether the ALJ erred by failing to state Plaintiffs limitation to noise exposure in
specific work-related terms.
· After careful review of the administrative record and the issues presented, this Court
finds no reversable error in this case. Therefore, the decision of the Commissioner is affirmed.

I.

The ALJ did not err in finding that Plaintiff had transferable skills from her past
work as a flower salesperson.
The Social Security Regulations (SSR) and Program Operations Manual System (POMS)

instruct the ALJs on how to determine if a claimant has transferable skills from their past work.
A work skill is defined as
knowledge of a work activity which requires the exercise of significant judgment
that goes beyond the carrying out of simple job duties and is acquired through
performance of an occupation which is above the unskilled level (requires more
than 30 days to learn). It is practical and familiar knowledge of the principles and
processes of an art, science or trade, combined with the ability to apply them in
practice in a proper and approved manner.
SSR 82-41, 1982 SSR LEXIS 34, *4. Skills are transferable "when the skilled or semi-skilled
work activities [done] in past work can be used to meet the requirements of skilled or semiskilled work activities of other jobs or other kinds of work." 20 C.F.R. § 404.1568(d)(l).
Transferability "depends largely on the similarity of occupationally significant work activities
among different jobs." Id. Transferability of skills is most probable when (1) the same or lesser
degree of skill is required; (2) the same or similar tools and machines are used; and (3) the same
or similar raw material, products, processes or services are involved." 20 C.F.R. §
404.1568(d)(2). However, complete similarity of these factors is "not necessary for
transferability." 20 C.F.R. § 404.1568(d)(3).
Persons of advanced age (55 or older) cannot make an adjustment to other work that
differs from their past relevant work unless there are transferable skills. 20 C.F.R. §
404.1568(d)(4). When a claimant is closely approaching retirement age and "has a severe
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impaim1ent that limits [a claimant] to no more than light work, we will find that [a claimant has]
skills that are transferable to skilled or semiskilled light work only if the light work is so similar
to [a claimant's] previous work that [a claimant] would need to make very little, if any,
vocational adjustment in terms of tools, work processes, work settings, or the industry." 20
C.F.R. § 404.1568(d)(4).
In this case, Plaintiff was 55 years old on her alleged onset date and 60 years old on her
date last insured. Tr. 20, 60. From 2004 until her accident in December 2011, Plaintiff worked
as a sales associate at a flower shop, a semi-skilled position with a specific vocational
preparation (SVP) level of four. Tr. 28; Dictionary of Occupational Titles (DOT) 260.357-026.
The vocational expert testified that an individual with Plaintiffs age, education, and RFC could
not perform her past work because it involved loud noise levels and constant exposure to wetness
and humidity. Tr. 41. However, the vocational expert further testified that the skills associated
with a sales associate at a flower shop were transferable with very little, if any, vocational
adjustment to the jobs of a general sales clerk and a food sales clerk. Tr. 52-53. Both of these
jobs are light, semi-skilled positions with an SVP level of three and a moderate noise level of
three. DOT 290.477-014; DOT 290.477-018.
The ALJ asked the vocational expert to list what transferrable skills Plaintiff would have
obtained from her past job as a flower salesperson. Tr. 53. The vocational responded that the
skills associated with a flower person included, "the ability to work with people, to be able to
listen carefully to the order, to be able to record that if there's any disputes as far as orders to
resolve that, to be able to greet customers and discuss type of quality and quantity of the
merchandise, to be able to compute charges for merchandise and services, provide information
with regard to the different types of products." Tr. 53. In the ALJ's written decision, the ALJ

8 - Opinion and Order

listed Plaintiffs transferrable skills as "working with people, greeting customers, recording
orders, resolving disputes, discussing merchandise, computing charges, and providing
information concerning different types of products." Tr. 20.
Plaintiff has not carried her burden to show a reversable error. Plaintiff claims that the
ALJ erred in detennining she possessed transferable skills and argues that many of the skill listed
by the ALJ were aptitudes rather than skills. Plaintiff argues that any skills she acquired as a
florist are specific to the floral industry. However, the Dictionary of Occupational Titles
expressly provides that, in addition to duties directly related to :flowers, a flower salesperson
"performs other duties as described under SALESPERSON (retail trade; wholesale tr.)." DOT
260.357-026. Therefore, pursuant to the DOT, an individual's acquired skills as a flower
salesperson should transfer directly to other, less skilled salesperson jobs. The ALJ explicitly
asked the vocational expert to identify what transferrable skills Plaintiff would have obtained
from working as a flower salesperson for approximately seven years, and the vocational expert
did so. It was reasonable for the ALJ to rely on the vocational expert's testimony and the DOT
to find that Plaintiff had transferrable skills.

II.

The Court finds no reversable error regarding the ALJ's :findings related to
Plaintifr s ability to tolerate noise.
The residual functional capacity ("RFC") represents the most an individual can do despite

her limitations and restrictions. SSR 96-Sp. The RFC finding is a matter reserved for the ALJ' s
determination and is based on all the relevant medical evidence and other evidence in the case
record. 20 C.F.R. § 404.1545(a)(3); Rounds v. Comm 'r Soc. Sec. Admin., 807 F.3d 996, 1006
(9th Cir. 2015) ("[T]he ALJ is responsible for translating and incorporating clinical findings into
a succinct RFC."). The RFC must be stated in terms of specific work-related functions. SSR 96Sp.
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Here, the ALJ found that Plaintiff should avoid environments where there is a "high
volume of noise produced by machines or people." Tr. 16. This finding was based on Dr.
Cunningham's recommendation that Plaintiff should avoid working around "excessive noise."
Tr. 612. The vocational expert interpreted the ALJ's limitation of no "high volume of noise
produced by machines or people" to mean that Plaintiff could work in moderate noise level jobs.
Plaintiff argues that the tenns "excessive noise" and "high volume of noise" are too vague to be
vocationally useful because they do not coincide with the terminology used in the DOT or the
Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational
Titles ("Selected Characteristics"). The Selected Characteristics categorizes noise as either very
quiet (level 1), quiet (level 2), moderate (level 3), loud (level 4), or very loud (level 5). Selected
Characteristics at ID-2. Plaintiff argues that even though the vocational expert interpreted the
ALJ's ~estriction to mean that Plaintiff could work in moderate noise levels, it is not clear that
this is what the ALJ or Dr. Cunningham meant.
After careful review of the record, the Court finds that substantial evidence supports the
vocational expert's interpretation of the ALJ's noise limitation and the ALJ's step five findings.
At the hearing, Plaintiff testified that she could not hear cars. Tr. 46. She further testified that
she had problems with hearing only when she had a migraine. Tr. 46. She stated that she had
problems with her left ear but no problem in the right ear. Tr. 46. February 2015 audiometry
testing showed bilateral severe sensorineural hearing loss. Tr. 564. However, Plaintiffs speech
discrimination score was 96 percent in her right ear and 100 percent in her left ear. Tr. 657. The
State agency consultants assessed no limitations related to noise. Tr. 66, 82. Dr. Cunninghan1
found that Plaintiff should avoid working around "excessive noise." Tr. 612. The ALJ adopted
Dr. Cunningham's more restrictive noise-related assessment. Tr. 16.

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At step five, the ALJ determined that Plaintiff could perform jobs requiring moderate
levels of noise. Tr. 21, 51 -53. According to the Selected Characteristics Appx. D, work
environments with moderate noise levels include business offices where typewriters are used,
grocery stores, and fast-food restaurants at off-hours. By contrast, examples of work
environments with quiet noise levels include a library, a golf course, and an art museum. Id.
Plaintiff has the burden to demonstrate harm in the ALJ's decision. Shinseld v. Sanders, 556 U.S.
396,410 (2009). Plaintiff has not identified any evidence indicating that she would not be able
to tolerate moderate noise levels. Moreover, it was reasonable for the ALJ to interpret Dr.
Cunningham's "excessive noise" limitation to mean that Plaintiff should avoid loud workplaces
but can tolerate moderate levels of noise. Likewise, it was reasonable to the vocational expert to
interpret the ALJ's limitation of"high voluine of noise produced by machines or people" to
mean that Plaintiff can tolerate moderate levels of noise.

ORDER
Based on the foregoing, the decision of the Commissioner is AFFI~,~-LJ
It is so ORDERED and DATED this~ day of June, 2021.

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