Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Denise S. v. Saul

United States District Court, C.D. California, Western Division

June 25, 2019

DENISE S., Plaintiff,
v.
ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          MEMORANDUM OPINION AND ORDER

          PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE.

         I.

         PROCEEDINGS

         Denise S.[1] (“plaintiff”) filed this action on May 31, 2018, seeking review of the Commissioner's[2] denial of her application for Disability Insurance Benefits (“DIB”). The parties filed Consents to proceed before a Magistrate Judge on July 19, 2018, and June 24, 2019. Pursuant to the Court's Order, the parties filed a Joint Stipulation (alternatively “JS”) on May 9, 2019, that addresses their positions concerning the disputed issues in the case. The Court has taken the Joint Stipulation under submission without oral argument.

         II. BACKGROUND

         Plaintiff was born in 1954. [Administrative Record (“AR”) at 127.] She has past relevant work experience as a cashier. [Id. at 345, 398.]

         On February 27, 2012, plaintiff filed an application for a period of disability and DIB, alleging that she has been unable to work since April 18, 2004. [Id. at 431; see also id. at 127-28.] After her application was denied initially and upon reconsideration, plaintiff timely filed a request for a hearing before an Administrative Law Judge (“ALJ”). [Id. at 492.] A hearing was held on September 10, 2013, at which time plaintiff appeared represented by an attorney, and testified on her own behalf. [Id. at 476-91.] A vocational expert (“VE”) also testified. [Id. at 487-91.] On September 19, 2013, the ALJ issued a decision concluding that plaintiff was not under a disability from April 18, 2004, the alleged onset date, through December 31, 2007, the date last insured (alternatively “DLI”). [Id. at 431-36.] Plaintiff requested review of the ALJ's decision by the Appeals Council, which was denied on December 9, 2014. [AR at 440.] Plaintiff filed an action with this Court in case number CV 15-1152-PLA, and on April 4, 2016, this Court remanded the matter. [Id. at 457-71; see also id. at 474 (Appeals Council Remand Order).] On remand before the same ALJ, hearings were held on February 8, 2017 [id. at 418-27], March 7, 2017 [id. at 402-17], and July 21, 2017, at which time plaintiff again appeared represented by an attorney and testified on her own behalf. [Id. at 374-401.] Medical expert (“ME”) Richard Cohen, M.D., a psychiatrist, testified at the March 7, 2017, hearing regarding plaintiff's mental health issues [id. at 408-15]; ME Harvey Alpern, M.D., an internist, testified at the July 21, 2017, hearing regarding plaintiff's physical impairments [id. at 377-83]; a VE also testified at the July 21, 2017, hearing. [Id. at 397-401.] On August 14, 2017, the ALJ issued a decision again concluding that plaintiff was not under a disability from April 18, 2004, the alleged onset date, through December 31, 2007, the date last insured. [Id. at 337-47.] At that time, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. § 404.984. This action followed.

         III.

         STANDARD OF REVIEW

         Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence or if it is based upon the application of improper legal standards. Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010) (citation omitted).

         “Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (citation omitted). “Where evidence is susceptible to more than one rational interpretation, the ALJ's decision should be upheld.” Id. (internal quotation marks and citation omitted). However, the Court “must consider the entire record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion, and may not affirm simply by isolating a specific quantum of supporting evidence.” Id. (quoting Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (internal quotation marks omitted)). The Court will “review only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not r e l y . ” I d . (internal quotation marks and citation omitted); see a l s o SEC v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 87 L.Ed. 626 (1943) (“The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.”).

         IV.

         THE EVALUATION OF DISABILITY

         Persons are “disabled” for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or which has lasted or is expected to last for a continuous period of at least twelve months. Garcia v. Comm'r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014) (quoting 42 U.S.C. § 423(d)(1)(A)).

         A.

         THE FIVE-STEP EVALUATION PROCESS

         The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006) (citing Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)). In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim is denied. Lounsburry, 468 F.3d at 1114. If the claimant is not currently engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a “severe” impairment or combination of impairments significantly limiting her ability to do basic work activities; if not, a finding of nondisability is made and the claim is denied. Id. If the claimant has a “severe” impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. § 404, subpart P, appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient “residual functional capacity” to perform her past work; if so, the claimant is not disabled and the claim is denied. Id. The claimant has the burden of proving that she is unable to perform past relevant work. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). If the claimant meets this burden, a prima facie case of disability is established. Id. The Commissioner then bears the burden of establishing that the claimant is not disabled because there is other work existing in “significant numbers” in the national or regional economy the claimant can do, either (1) by the testimony of a VE, or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. part 404, subpart P, appendix 2. Lounsburry, 468 F.3d at 1114. The determination of this issue comprises the fifth and final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 721, 828 n.5 (9th Cir. 1995); Drouin, 966 F.2d at 1257.

         B. THE ALJ'S APPLICATION OF THE FIVE-STEP PROCESS

         At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity during the period from her alleged onset date of April 18, 2004, through December 31, 2007, her date last insured.[3] [AR at 340.] At step two, the ALJ concluded that through the date last insured plaintiff had the severe impairments of degenerative joint disease; degenerative disc disease; small umbilical hernia; history of gastric bypass surgery; gastroesophageal reflux disease (“GERD”); Barrett's syndrome; and anxiety. [Id.] At step three, the ALJ determined that through the date last insured plaintiff did not have an impairment or a combination of impairments that met or medically equaled any of the impairments in the Listing. [Id.] The ALJ further found that through the date last insured plaintiff retained the residual functional capacity (“RFC”)[4] to perform light work as defined in 20 C.F.R. § 404.1567(b), [5] as follows:

[Can] stand and walk for six hours in an eight-hour workday; sit for six hours in an eight-hour workday; occasionally climb, balance, stoop, bend, crouch, and crawl; occasional overhead reaching with the right upper extremity; can understand and remember tasks; can sustain concentration and persistence; can socially interact with the general public, co-workers, and supervisors; and can adapt to workplace changes frequently enough to perform unskilled, low stress jobs that require simple instructions.

[Id. at 341.] At step four, based on plaintiff's RFC and the testimony of the VE, the ALJ concluded that through the date last insured plaintiff was able to perform her past relevant work as a cashier. [Id. at 345.] The ALJ made an alternative finding at step five that through the date last insured there were other jobs existing in the national economy that plaintiff could have also performed, including work as a “packager” (Dictionary of Occupational Titles (“DOT”) No. 559.687-074), as a “cleaner” (DOT No. 323.687-014), and as an “assembler” (DOT No. 929.587-010). [AR at 346.] Accordingly, the ALJ determined that plaintiff was not disabled at any time from the alleged onset date of April 18, 2004, through December 31, 2007, her date last insured. [Id.]

         V.

         THE ALJ'S DECISION

         Plaintiff contends that the ALJ erred when he: (1) determined plaintiff could perform other work; (2) failed to find plaintiff's deep vein thrombosis (“DVT”) to be a severe impairment at step two of his analysis; (3) rejected plaintiff's subjective symptom testimony; and (4) breached his duty to develop the record. [JS at 4.] As set forth below, the Court respectfully disagrees with plaintiff and affirms the decision of the ALJ.

         A. STEP FIVE

         1. Legal Standard

         In determining whether appropriate jobs exist for a claimant, or whether the claimant can perform her past relevant work, the VE generally will refer to the DOT. See Light v. Social Sec. Admin., 119 F.3d 789, 793 (9th Cir. 1997). The DOT is usually “the best source for how a job is generally performed.” Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001). Social Security Ruling (“SSR”)[6] 00-4p explicitly requires that the ALJ determine whether the VE's testimony deviates from the DOT, and whether there is a reasonable explanation for any deviation. See SSR 00-4p (stating that an ALJ must inquire whether a VE's testimony regarding “the requirements of a job or occupation” conflicts with the DOT).[7] The procedural requirements of SSR 00-4p ensure that the record is clear as to why an ALJ relied on a VE's testimony, particularly in cases where the expert's testimony conflicts with the DOT. Massachi, 486 F.3d at 1153. In making disability determinations, the ALJ may rely on VE testimony that contradicts the DOT, but only insofar as the record contains persuasive evidence to support the deviation. Light, 119 F.3d at 793; Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995); Massachi, 486 F.3d at 1153. Although evidence provided by a VE “generally should be consistent” with the DOT, “[n]either the DOT nor the VE . . . evidence automatically ‘trumps' when there is a conflict.” SSR 00-4p. Thus, an ALJ must first determine whether a conflict exists, and if it does, he must then determine whether the VE's explanation for the conflict is reasonable and whether a basis exists for relying on the expert rather than the DOT. Id.

         Ninth Circuit law “is clear that a counsel's failure [to raise an issue] does not relieve the ALJ of his express duty to reconcile apparent conflicts through questioning: ‘When there is an apparent conflict between the vocational expert's testimony and the DOT -- for example, expert testimony that a claimant can perform an occupation involving DOT requirements that appear more than the claimant can handle -- the ALJ is required to reconcile the inconsistency.'” Lamear v. Berryhill, 865 F.3d 1201, 1206 (9th Cir. 2017) (quoting Zavalin v. Colvin, 778 F.3d 842, 846 (9th Cir. 2015)); see a l s o SSR 00-4p; Massachi, 486 F.3d at 1152-53; Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) (ALJ has a special duty to fully and fairly develop the record and to assure that the claimant's interests are considered, even when the claimant is represented by counsel). Thus, “the fact that Plaintiff's representative did not challenge the VE's testimony as inconsistent with the DOT at the time of the hearing is not conclusive as to whether an apparent conflict exists, nor does it constitute a waiver of the argument.” Gonzales v. Astrue, 2012 WL 2064947, at *4 (E.D. Cal. June 7, 2012) (citing Sims v. Apfel, 530 U.S. 103, 111-12, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000)).

         Only after determining whether the testimony of the VE has deviated from the DOT, and whether any deviation is reasonable, can an ALJ properly rely on the VE's testimony as substantial evidence to support a disability determination. Massachi, 486 F.3d at 1152-54. As noted by the Ninth Circuit, “[t]he requirement for an ALJ to ask follow up questions is fact-dependent, ” and “the more obscure the job, the less likely common experience will dictate the result.” Lamear, 865 F.3d at 1205 (noting that to avoid unnecessary appeals, “an ALJ should ordinarily ask the VE to explain in some detail why there is no conflict between the DOT and the applicant's RFC”). Evidence sufficient to support a deviation from the DOT may be either specific findings of fact regarding a claimant's ability to perform particular jobs, or inferences drawn from the context of the expert's testimony. See Light, 119 F.3d at 1435 n.7 (ALJ provided sufficient support for deviation by noting that the VE described characteristics and requirements of jobs in the local area consistent with claimant's RFC); Terry v. Sullivan, 903 F.2d 1273, 1279 (9th Cir. 1990) (ALJ may infer support for deviation where VE's understanding of applicable legal standards is clear from context).

         2. Analysis

         Plaintiff's RFC limits her to occasional overhead reaching with her right upper extremity, and the ALJ's hypotheticals to the VE included this limitation. [AR at 341, 398-99.] Plaintiff contends that there are conflicts between this reaching limitation and the three occupations identified by the VE at step five (packager, cleaner, and assembler), each of which requires “frequent” reaching, i.e., from 1/3 to 2/3 of the time. [JS at 4-6, 7.] She argues that because reaching is described by the Social Security Administration as “extending the hands and arms in any direction, ” which would include overhead reaching, there was a potential conflict between the DOT job descriptions and the VE's testimony that a person with only occasional overhead reaching could perform these jobs.

         Defendant submits that plaintiff does not contest the ALJ's step four finding that she could perform her past relevant work as a cashier and, therefore, plaintiff's argument regarding the ALJ's step five finding is moot. [Id. at 7 & n.2.] Defendant further points out that neither the DOT job descriptions for the three step five occupations, nor common sense understanding of these occupations' “essential, integral, or expected” tasks, would indicate that any overhead reaching would be required, “much less more than occasional overhead reaching.” [Id. at 8-9 (citing Gutierrez v. Colvin, 844 F.3d 804, 807 (9th Cir. 2016) (finding that cashiering is a good example of an occupation that requires frequent reaching but for which the frequency or necessity of overhead reaching is unlikely and unforeseeable)).]

         In the Reply portion of the Joint Stipulation, plaintiff suggests, for the first time, that the ALJ's step four findings are also in conflict with the DOT “with respect to the reaching requirements as well as the limitation to unskilled, low stress [jobs], with simple tasks.” [JS at 12 (footnote and citation omitted).] Plaintiff further asserts that her “focus is not solely on the step five findings” and, in a rather convoluted argument, suggests that she had to show that there was error at step five because even if there was conflict at step four, “the error is harmless if there is no error at step five, so the harmfulness stems from the challenged step five findings.” [Id. at 11-12.] The Court will not consider an argument made for the first time in a Reply. Because plaintiff did not raise her step four argument in her opening portion of the Joint Stipulation, it is waived. Willens v. Berryhill, 709 Fed.Appx. 867, 868 (9th Cir. 2017) (declining to consider issue raised for first time in reply brief). In any event, as previously discussed, the Ninth Circuit has rejected the argument that the cashier occupation requires overhead reaching. See Gutierrez, 844 F.3d at 807. Plaintiff provides no evidence that the cashier occupation is inconsistent with her limitation to unskilled, low stress jobs, with simple tasks. However, even if there was a step four inconsistency, there was no error in the ALJ's step five finding, and any step four error was harmless. Plaintiff points to no actual or apparent inconsistency between the step five occupations the ALJ found plaintiff able to perform and plaintiff's limitation to occasional overhead reaching. As in Gutierrez, the Court finds that the DOT descriptions of the tasks involved in these occupations, as well as a common sense understanding of these tasks, suggests that the frequency or necessity of reaching overhead to perform any of these occupations is “unlikely and unforeseeable.” Gutierrez, 844 F.3d at 808.

         Remand is not warranted on this issue.

         B. STEP TWO

         1. The ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.