United States District Court, S.D. California
September 14, 2005.
BRYAN L. JACKSON, Plaintiff,
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.
The opinion of the court was delivered by: LARRY BURNS, Magistrate Judge
ORDER ADOPTING REPORT AND RECOMMENDATION AS MODIFIED, DENYING
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT AND AFFIRMING AGENCY DECISION
Plaintiff Bryan L. Jackson brought this action pursuant to
42 U.S.C. §§ 1383(c)(3) and 405(g) for Judicial Review and Remedy on
Administrative Decision Under the Social Security Act, requesting
that the decision of the Commissioner of Social Security denying
his disability benefits be reversed. Subsequently he filed a
motion for summary judgment, and Defendant filed a cross-motion
for summary judgment. The motions were referred to Magistrate
Judge Louisa S. Porter for a report and recommendation pursuant
to 28 U.S.C. § 636(b)(1)(b) and Civil Local Rule 72.1(c)(1)(c).
Judge Porter recommended denying Plaintiff's motion, granting
Defendant's cross-motion, and affirming the agency decision to
deny benefits ("Report and Recommendation"). Plaintiff filed
objections to the Report and Recommendation ("Objections"), and
Defendant has not responded. Upon review of the record in light
of the Objections, the Court ADOPTS the Report and
Recommendation AS MODIFIED HEREIN. FACTUAL AND PROCEDURAL BACKGROUND
On November 26, 2002, Plaintiff applied for supplemental social
security income benefits. At the time of filing his application,
he was a 50 years old and had high school education. His past
work experience included employment as a blue print machine
operator, bartender and auto mechanic. He alleged he had become
disabled in 1994, after three knee arthroscopies. He subsequently
underwent additional knee surgeries, and also suffered from back
pain and substance abuse. His substance abuse was in remission at
the time of the application.
The application was denied initially and on reconsideration.
After an administrative hearing, the Administrative Law Judge
("ALJ") concluded Plaintiff was not disabled and denied his
request for benefits. Plaintiff's request for administrative
review was denied. Where a request for review is denied, the
ALJ's decision becomes the final agency decision reviewed by the
court. See Batson v. Comm'r of the Social Security Admin.,
359 F.3d 1190, 1193 n. 1 (9th Cir. 2004). Plaintiff sought judicial
review in this Court. In her Report and Recommendation Judge
Porter found the ALJ's decision was based on substantial evidence
and was free of legal error. She therefore recommended denying
Plaintiff's summary judgment motion, granting Defendant's summary
judgment motion and affirming the agency decision.
I. Standard of Review
The district court has jurisdiction to review the magistrate
judge's report and recommendation concerning a dispositive
motion, and makes a de novo determination of any portion of the
magistrate judge's disposition to which specific written
objection have been timely and appropriately made.
Fed.R.Civ.P. 72(b); see also United States v. Reyna-Tapia, 238 F.3d 1114,
1121 (9th Cir. 2003) (en banc). "A judge of the court may
accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge."
28 U.S.C. § 636(b)(1)(C). Since Plaintiff objects only to the Magistrate
Judge's finding pertaining to two hypothetical questions posed by
the ALJ to the vocational expert, this is the only aspect of the
Report and Recommendation reviewed by this Court. II. Court Review of Agency's Decision to Deny Benefits
The Social Security Act provides for judicial review of a final
agency decision denying a claim for disability benefits.
42 U.S.C. § 405(g). A reviewing court must affirm the denial of
benefits if the agency's decision is supported by substantial
evidence and applies the correct legal standards. Batson,
359 F.3d at 1193. Substantial evidence means "such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion." Ostenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir.
To qualify for disability benefits under the Social Security
Act, a claimant must show he is unable to engage in any
substantial gainful activity because of a medically determinable
physical or mental impairment that has lasted or can be expected
to last at least 12 months. 42 U.S.C. § 423(d). The Social
Security regulations establish a five-step sequential evaluation
for determining whether a claimant is disabled under this
standard. 20 C.F.R. § 404.1520(a); Batson, 359 F.3d at 1194.
First, the agency must determine whether the applicant is engaged
in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i).
If not, the agency must determine at step two of the evaluation
whether the claimant is suffering from a "severe" impairment
within the meaning of the regulations. Id. at §
404.1520(a)(4)(ii). If the claimant's impairment is severe, the
agency must determine at step three whether the impairment meets
or equals one of the "Listing of Impairments" contained in the
regulations. Id. at § 404.1520(a)(4)(iii). If the claimant's
impairment meets or equals a listing, he must be found disabled.
Id. If the impairment does not meet or equal a listing, the
agency must determine at step four whether the claimant retains
the residual functional capacity to perform his past relevant
work. Id. at § 404.1520(a)(4)(iv). If the claimant can no
longer perform his past relevant work, the agency at step five of
the evaluation must consider whether he can perform any other
work that exists in the national economy. Id. at §
404.1520(a)(4)(v). While the claimant carries the burden of
proving eligibility at steps one through four, the burden at step
five rests on the agency. Celaya v. Halter, 332 F.3d 1177, 1180
(9th Cir. 2003). Claimants not disqualified at step five are
eligible for disability benefits. Id. III. Plaintiff's Objections
Plaintiff contends the ALJ's finding of no disability should be
reversed because the hypothetical questions he posed to the
vocational expert were incomplete, and the expert's opinions
therefore could not properly support the finding. The Court
The ALJ found at step four of the evaluation that Plaintiff
could perform his past work as a blueprint machine operator
despite his severe impairments. At step four, the ALJ must
compare the claimant's residual functional capacity ("RFC") with
the physical and mental demands of his past relevant work to
determine whether he is able to perform such work.
20 C.F.R. § 404.1560(a)&(b).
Accordingly, the first component of evaluation at step four is
the RFC assessment. "RFC is what an individual can still do
despite his or her limitations."*fn1 SSR 96-8p, 1996 WL
374184 (S.S.A.). Since the formulation of an RFC assessment does
not involve a vocational expert opinion,*fn2 the ALJ in this
case did not rely on the vocational expert for this purpose
(see AR at 3-4), and Plaintiff in his Objections does not
challenge the RFC assessment, the RFC assessment is relevant in
the present discussion only insofar as Plaintiff contends the
hypothetical questions to the vocational expert must include the
entire RFC assessment.
The second component of evaluation at step four is a
determination of a claimant's ability to return to his past
relevant work in light of the RFC assessment and the physical and
mental demands of the prior work. The ALJ may use a vocational
expert to assist in making this determination.
20 C.F.R. § 404.1560(b)(2). Specifically, a vocational expert "may offer
expert opinion testimony in response to a hypothetical question about
whether a person with the physical and mental limitations imposed
by claimant's medical impairment(s) can meet the demands of
claimant's previous work. . . ." Id.
The ALJ in this case asked the vocational expert, Connie
Guillory, four hypothetical questions. Plaintiff contends the
first and third hypotheticals were incomplete. Plaintiff's
Objections are based on the premise the ALJ has an "obligation
under Social Security Rulings of formulating complete [RFC]
assessments in the hypothetical questions." (Objections at 2.)
For this proposition, Plaintiff relies on DeLorme v. Sullivan,
924 F.2d 841 (9th Cir. 1991). DeLorme, however, is
distinguishable from the instant case.
In DeLorme the ALJ found the claimant met his burden to prove
he could not return to his prior relevant work, and the
evaluation therefore continued to step five. Id. at 849. At
step five, the agency has the burden to prove the claimant is not
disabled because he could do other work in the national economy.
Id. The ALJ consulted a vocational expert on this point, but in
stating the hypothetical questions, he omitted the claimant's
significant mental impairment. Id. "If the hypothetical does
not reflect all the claimant's limitations, we have held that the
expert's testimony has no evidentiary value to support a finding
that the claimant can perform jobs in the national economy."
Id. The failure to include the mental impairment required
However, DeLorme acknowledges that imperfect hypotheticals do
not necessarily lead to remand or reversal. Id. As long as the
hypothetical is supported by substantial evidence, the vocational
expert's response may have evidentiary value. Id. (citing
Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984) (at
step five, expert opinion has evidentiary value if the
assumptions in the hypothetical are supported by the record) and
Embrey v. Bowen, 849 F.2d 418, 422-23 (9th Cir. 1988) (same)).
Since the hypothetical in DeLorme was not supported by the
record, the ALJ's decision was reversed.
The instant case is distinguishable from DeLorme. In
DeLorme, Gallant and Embrey, where the ALJ's finding was
based on vocational expert testimony at step five and
subsequently rejected by the court, the ALJ's decision was
reversed because the hypothetical was not based on the record,
i.e., it left out some limitation which was supported by
substantial evidence, and which the ALJ erroneously failed to credit. This is not the case here.
In his Objections, Plaintiff does not contend the ALJ erred by
not crediting all of his testimony, and he does not challenge the
correctness of the RFC assessment.
The instant case is distinguishable from DeLorme for another
reason. Here, the vocational expert testimony was elicited at
step four, where the claimant bears the burden to prove he could
not return to his previous relevant work, rather than at step
five, where the agency bears the burden to prove the claimant
could do other work available in the national economy. This
distinction made a difference in Matthews v. Shalala,
10 F.3d 678 (9th Cir. 1993). In Matthews, the ALJ found at step four
the claimant was not disabled because he failed to prove he could
not do his previous work. On appeal, the claimant argued based on
DeLorme that the ALJ erred by excluding from the hypothetical
the limitation of staying in one position. Id. at 681. The
court affirmed the ALJ finding of no disability because the
burden of proof was on the claimant, not the agency. Id. The
vocational expert opinion was therefore useful to the ALJ's
finding, but was not required. Id. Same is true in this case.
The vocational expert opinion was elicited at step four and the
burden of proof was on Plaintiff.
The agency decision in Matthews was affirmed on the
alternative ground that even if expert opinion were required, the
ALJ's hypothetical was supported by the record. The ALJ's failure
to include a limitation of staying in one position was irrelevant
because the claimant testified staying in one position was not a
demand of his prior work. Id. Similarly in this case, all of
Plaintiff's relevant limitations were reflected in the
When the hypotheticals are reviewed in context and all of
vocational expert's assumptions are taken into account, the Court
concludes the expert's opinions properly support the ALJ's
finding of no disability. Plaintiff's Objections challenge the
following two of the four hypotheticals:
ALJ: . . . We have a younger individual. At least he
was between 1994 to 1998. . . . [¶] . . . 12th grade,
prior work as indicated in 9E*fn3 [bartender,
blue print machine operator, and auto body repairer]. . . . The first
hypothetical is ability to do light work, sit and
stand two hours out of a day, occasional postural, no
ropes, ladders, et cetera, no overhead work with the
left upper extremity, no hazards. [INAUDIBLE].
[¶] . . .
VE: Given that hypothetical, Your Honor, he would be
able to perform the blueprinting machine operator as
classified by the Dictionary of Occupational
[¶] . . .
Q: . . . The third hypothetical is hypothetical one
with the sit/stand option. Would he be able to do
A: Can we clarify the sit/stand option? . . .
Q: Basically, he can sit or stand as long as whenever
he would need to.
A: If the sit/stand option were to involve
alternating positions at no more than 15-minute
increments, . . . he would be able to perform that
position. [¶] . . . If we were doing every minute or
two that becomes unreasonable.
Q: So if it was at 15-minute increments, he could do
A: Then yes.
(AR at 426-28.)
Plaintiff finds fault with these hypotheticals because the term
"day" is not defined and is therefore ambiguous. The relevant
"day" for purposes of a step four determination is a work day in
claimant's prior relevant work. Generally, this is an eight-hour
work day, or shorter, if the claimant engaged in substantial
part-time work. SSR 96-8p n. 2. Since "day" is a defined term in
the area of social security disability determinations, and the
context makes clear the inquiry was regarding Plaintiff's prior
full-time relevant work (see AR at 52, 426-29), the Court
agrees with Judge Porter's conclusion that "[b]ased on the record
as a whole, `a day' means an eight-hour workday."*fn4
(Report and Recommendation at 11.)
Plaintiff's only remaining criticism of these hypotheticals is
they do not define the scope of Plaintiff's limitation on
standing and sitting as defined in the RFC assessment: The claimant can lift and carry 20 pounds
occasionally and 10 pounds frequently. He can stand
for two hours in an eight hour day and sit 6 hours in
an eight hour day. He can occasionally climb ramps
and stairs. He can bend, kneel, crouch, stoop and
crawl. He cannot climb ropes, ladders or scaffolds.
He cannot perform overhead work with his left upper
extremity and should not be exposed to work place
(AR at 3-4 (internal citation omitted), see also id. at 5.) The
first hypothetical assumed ability to do light work, occasional
postural demands such as stooping or climbing, no climbing ropes
or ladders, no overhead work with the left upper extremity, and
no workplace hazards. This hypothetical tracks the RFC
assessment, but is unclear as to the amount of time Plaintiff can
sit or stand, because it states he can "sit and stand two hours
out of a day," whereas his RFC is to stand for two out of eight
hours and sit for six out of eight hours per day. The Court finds
this is not a fatal defect.
If anything, the first hypothetical presents Plaintiff's
sitting and standing limitations as more severe than warranted by
his RFC assessment. On the assumption Plaintiff can "sit and
stand two hours out of a day," the vocational expert opined he
could perform his prior work as a blueprint machine operator. A
fortiori, this opinion would remain unchanged if the
hypothetical expressly stated Plaintiff can stand for two hours
in an eight hour day and sit six hours in an eight hour day.
Moreover, the vocational expert's response to the second
hypothetical negates Plaintiff's argument that the ambiguity in
the sitting and standing restriction in the first hypothetical
invalidates the ALJ's findings:
ALJ: . . . The second hypothetical is: needing work
with sit/stand of eight, two of eight hours, sit for
six out of eight hours, occasional squatting,
bending, and stooping, no manipulation limitations
[¶] . . .
A: The response would remain the same.
(AR at 427-28.) This hypothetical expressly includes the
limitation on sitting and standing as reflected in the RFC
assessment, along with the assumptions of occasional postural
demands and no manipulation limitations, similar to the first
hypothetical. In his Objections, Plaintiff does not find any
fault with the second hypothetical. The vocational expert's
opinion that Plaintiff could perform his prior work as a blue print machine operator under the
second hypothetical properly supports the ALJ's finding that
Plaintiff could perform this job.
Last, the expert's response to the third hypothetical also
negates Plaintiff's argument. The third hypothetical was the same
as the first, except it assumed Plaintiff could alternate between
sitting and standing no more frequently than in 15-minute
intervals. The vocational expert opined Plaintiff could
nevertheless work as a blueprint machine operator. A fortiori,
Plaintiff can preform the same job if he can stand for two hours
and sit for six hours out of an eight-hour work day.
As in Matthews, the hypotheticals posed to the vocational
expert in this case are supported by the record and contain the
relevant limitations. The ALJ made the following finding
regarding Plaintiff's ability to perform his prior work:
At the hearing, Ms. Guillory, the impartial
vocational expert, testified that based upon the
claimant's residual functional capacity . . . the
claimant could return to his past relevant work as
blue print machine operator as it is described in the
Dictionary of Occupational Titles. However, he could
not do it as he had previously performed it.
Additionally, if the claimant required a sit/stand
option in 15 minute intervals, Ms. Guillory stated
that the claimant could still perform his past
relevant work as a blue print machine operator. I am
persuaded and so find.
(AR at 4-5.) The Court finds the vocational expert's responses to
the hypothetical questions properly support this finding.
Based on the foregoing, Plaintiff's Objections to the Report
and Recommendation are overruled, and the Report and
Recommendation is ADOPTED AS MODIFIED HEREIN. Accordingly,
Plaintiff's motion for summary judgment is DENIED, Defendant's
motion for summary judgment is GRANTED, and the agency's
decision to deny benefits is AFFIRMED.
IT IS SO ORDERED.
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