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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

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. 2001).

  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 disagrees.

  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 remand. Id.

  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 hypotheticals.

  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 Titles.
[¶] . . .
Q: . . . The third hypothetical is hypothetical one with the sit/stand option. Would he be able to do work?
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 it?
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 hazards.

 (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 4F4.
[¶] . . .
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.



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