Gutierrez v. Berryhill

• Court: District Court, S.D. California
• Decided: February 7, 2020
• Docket: 3:18-cv-02621
• Status: Unknown

Opinion

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RICARDO G., Case No.: 18cv2621-AJB(MSB)

12 Plaintiff, REPORT AND RECOMMENDATION 13 v. REGARDING JOINT MOTION FOR JUDICIAL REVIEW [ECF NO. 12] 14 ANDREW SAUL, Acting Commissioner of Social Security,1 15 Defendant. 16 17 18 This Report and Recommendation is submitted to the Honorable Anthony J. 19 Battaglia, United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Civil Local 20 Rule 72.1(c) of the United States District Court for the Southern District of California. On 21 November 15, 2018, Plaintiff Ricardo G. filed a Complaint pursuant to 42 U.S.C. § 405(g) 22 seeking judicial review of a decision by the Commissioner of Social Security denying his 23

24 25 1 On June 17, 2019, Andrew Saul became the Commissioner of the Social Security Administration. See https://www.ssa.gov/agency/commissioner.html (last visited on January 24, 2020). The Court 26 substitutes Andrew Saul for his predecessor, Nancy A. Berryhill, as the defendant in this action. See Fed. R. Civ. P. 25(d); 42 U.S.C. § 405(g) (providing that “[a]ny action instituted in accordance with this 27 subsection shall survive notwithstanding any change in the person occupying the office of 2 No. 1.) 3 Now pending before the Court is the parties’ Joint Motion for Judicial Review. For 4 the reasons set forth below, the Court RECOMMENDS that the Commissioner’s decision 5 be AFFIRMED and that this action be dismissed. 6 I. PROCEDURAL BACKGROUND 7 On September 3, 2014, Plaintiff filed an application for a period of disability and 8 disability insurance benefits under Titles II and XVI of the Social Security Act. (Certified 9 Admin. R. 84-85, 227-28, ECF No. 8 (“AR”).) On September 11, 2014, Plaintiff also filed 10 an application for supplemental security income. (Id. at 229-35.) For both applications, 11 Plaintiff alleged disability beginning December 31, 2010. (Id. at 227, 229.) After his 12 applications were denied initially and upon reconsideration (id. at 146-50, 153-57), 13 Plaintiff requested an administrative hearing before an administrative law judge (“ALJ”), 14 (id. at 158-59). An administrative hearing was held on January 31, 2017. (Id. at 58-83.) 15 Plaintiff appeared at the hearing with counsel, and testimony was taken from him and a 16 vocational expert (“VE”). (See id.) 17 As reflected in his September 28, 2017 hearing decision, the ALJ found that 18 Plaintiff had not been under a disability, as defined in the Social Security Act, from 19 December 31, 2010, through the date of the decision. (Id. at 37-52.) The ALJ’s decision 20 became the final decision of the Commissioner on August 13, 2018, when the Appeals 21 Council denied Plaintiff’s request for review. (Id. at 17-21.) This timely civil action 22 followed. (See Compl., ECF No. 1.) 23 II. SUMMARY OF THE ALJ’S FINDINGS 24 In rendering his decision, the ALJ followed the Commissioner’s five-step 25 sequential evaluation process. See 20 C.F.R. § 404.1520. At step one, the ALJ found 26 that Plaintiff had not engaged in substantial gainful activity since December 31, 2010, 27 the alleged onset date. (AR at 40.) At step two, the ALJ found that Plaintiff had the 2 and depression. (Id.) At step three, the ALJ found that Plaintiff did not have an 3 impairment or combination of impairments that met or medically equaled the severity 4 of one of the impairments listed in the Commissioner’s Listing of Impairments. (Id.) 5 Next, the ALJ determined that Plaintiff had the residual functional capacity 6 (“RFC”) to do the following: 7 perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except claimant could occasionally balance, stoop, kneel, crouch and crawl. 8 Claimant could occasionally climb ramps and stairs but could never climb 9 ladders, ropes and scaffolds. Claimant should be able to alternate between sitting and standing/walking after being in one such position for no more 10 than 30 minutes at a time. Claimant should have no public contact and can 11 perform simple routine tasks. 12 (Id. at 42.) 13 At step four, the ALJ adduced and accepted the VE’s testimony that a hypothetical 14 person with Plaintiff’s vocational profile and RFC would be unable to perform any of his 15 past relevant work. (Id. at 50; see also id. at 75.) The ALJ then proceeded to step five of 16 the sequential evaluation process. Based on the VE’s testimony that a hypothetical 17 person with Plaintiff’s vocational profile and RFC could perform the requirements of 18 occupations that existed in significant numbers in the national economy, such as 19 “document preparer” and “polisher, eyeglass frames,” the ALJ found that Plaintiff was 20 not disabled. (Id. at 51.) 21 III. DISPUTED ISSUE 22 As reflected in the parties’ Joint Motion for Judicial Review, Plaintiff is raising the 23 following issue as the ground for reversal and remand: Whether the ALJ carried the 24 Administration’s burden at step five of the sequential analysis. (J. Mot. Jud. Review 4, 25 ECF No. 12 (“J. Mot.”).) 26 / / / 27 / / / 2 Section 405(g) of the Social Security Act allows unsuccessful applicants to seek 3 judicial review of the Commissioner’s final decision. 42 U.S.C. § 405(g). The scope of 4 judicial review is limited, and the denial of benefits will not be disturbed if it is 5 supported by substantial evidence in the record and contains no legal error. Id.; Molina 6 v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). 7 “Substantial evidence means more than a mere scintilla, but less than a 8 preponderance. It means such relevant evidence as a reasonable mind might accept as 9 adequate to support a conclusion.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) 10 (quoting Desrosiers v. Sec’y Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988)); 11 see also Richardson v. Perales, 402 U.S. 389, 401 (1971). Where the evidence is 12 susceptible to more than one rational interpretation, an ALJ’s decision must be upheld. 13 Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). This includes deferring to an 14 ALJ’s credibility determinations and resolutions of evidentiary conflicts. See Lewis v. 15 Apfel, 236 F.3d 503, 509 (9th Cir. 2001). Even if the reviewing court finds that 16 substantial evidence supports an ALJ’s conclusions, the court must set aside the decision 17 if the ALJ failed to apply the proper legal standards in weighing the evidence and 18 reaching his or her decision. See Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 19 1193 (9th Cir. 2004). 20 The reviewing court may enter a “judgment affirming, modifying, or reversing” 21 the Commissioner’s decision. 42 U.S.C. § 405(g). The reviewing court may also remand 22 the case to the Social Security Administration for further proceedings. Id. 23 V. DISCUSSION 24 Plaintiff asserts that the ALJ failed to meet his step five burden of establishing that 25 additional jobs exist in significant numbers in the national economy that Plaintiff can 26 perform. (J. Mot. at 4-8.) Plaintiff contends that the ALJ determined that Plaintiff can 27 perform alternate occupations based on an incomplete hypothetical question to the VE. 2 option. (Id. at 9.) He argues that the ALJ’s hypothetical “only included what the 3 vocational expert interpreted to be a sit/stand option,” and left out Plaintiff’s 4 “additional requirement of being able to walk in combination with a limitation with 5 respect to sitting.” (Id. at 7.) Plaintiff claims that the ALJ’s error was not harmless and 6 asks the Court to reverse the ALJ’s decision. (Id. at 10-11.) 7 The Commissioner argues that Plaintiff’s RFC is less restrictive than the 8 hypothetical RFC the ALJ posed to the VE. (Id. at 8-9 (citing AR at 42).) The 9 Commissioner contends that the hypothetical RFC posed to the VE allowed alternating 10 between sitting and standing, and necessarily included Plaintiff’s less restrictive RFC, 11 which allowed alternating between sitting and either standing or walking. (Id.) The 12 Commissioner therefore asserts that any alleged error by the ALJ was harmless and asks 13 the Court to affirm the ALJ’s decision. (Id. at 8-9, 11.) 14 1. Applicable law 15 At step five of the sequential evaluation process, the ALJ is required to determine 16 whether a claimant can perform any other work existing in significant numbers in the 17 national economy, given the claimant’s residual functional capacity, age, education, and 18 work experience. See 20 C.F.R. § 404.1520(g). The ALJ may rely on the testimony of a 19 VE to assist in this determination, but the ALJ is required to pose a hypothetical question 20 that includes all of claimant’s limitations that are supported by substantial evidence in 21 the record. See Lubin v. Comm’r Soc. Sec. Admin., 507 F. App’x 709, 712 (9th Cir. 2013); 22 Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993); DeLorme v. Sullivan, 924 F.2d 841, 23 850 (9th Cir. 1991). If the ALJ’s hypothetical to the VE does not incorporate all of a 24 claimant’s limitations or is not supported by substantial evidence in the record, the VE’s 25 testimony has no evidentiary value to support a finding that the claimant can perform 26 jobs in the national economy. See DeLorme, 924 F.2d at 850; Gallant v. Heckler, 753 27 F.2d 1450, 1456 (9th Cir. 1984). The VE’s testimony should generally be consistent with 2 before relying on the VE’s testimony to find that a claimant can perform other 3 work. See id. 4 In assessing an individual’s RFC and ability to perform work existing in significant 5 numbers in the national economy, the ALJ is required to consider each exertional 6 capacity separately. See SSR 96-8p, 1996 WL 374184, at *5. “Exertional capacity” refers 7 to an “individual’s limitations and restrictions of physical strength and defines the 8 individual’s remaining abilities to perform each of seven strength demands: Sitting, 9 standing, walking, lifting, carrying, pushing, and pulling.” Id. 10 A reviewing court “may not reverse an ALJ’s decision on account of an error that 11 is harmless.” See Molina, 674 F.3d at 1111. An ALJ’s error is harmless if it “was 12 inconsequential to the ultimate nondisability determination.” Stout v. Comm’r Soc. Sec. 13 Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (citing Burch v. Barnhart, 400 F.3d at 682). 14 2. Analysis 15 The ALJ determined that Plaintiff’s RFC required him to “be able to alternate 16 between sitting and standing/walking after being in one such position for no more than 17 30 minutes at a time.” (AR at 42). During the administrative hearing, the VE categorized 18 Plaintiff’s past relevant work as a “waiter, general, DOT 311.477–030.” (Id. at 75.) 19 The ALJ asked the VE to consider a hypothetical individual of Plaintiff’s age, education, 20 and experience, with the ability to perform “light work with occasional postural 21 activities, no climbing of ladders, ropes or scaffolds.” (Id.) The VE testified that such an 22 individual could still perform Plaintiff’s past relevant work as a waiter. (Id.) 23 The ALJ then questioned the VE as follows: 24 Q Hypothetical two. Lift no more than 15 pounds. And this is added to hypo one. Standing and walking no more than 30 minutes at one time and 25 stretch breaks of five minutes per hour. Would that still allow for past 26 work?

27 A No. 2 A It would be SVP 2, light. It would be sit/stand option and the examples 3 would be such as silver wrapper. 318.687-018. Nationally 150,000. Another sit/stand option would be garment sorter. 222.687-014 and 4 national would be 125,000. 5 Q Dr. Thompson said bench work or kind of sit down jobs. If I limit 6 standing or walking to two hours total could the individual still do the silver 7 wrapper or garment sorter?

8 A It would be mostly sitting. You can mostly sit for that job. 9 Q You can mostly sit for either job. 10

11 A Yes.

12 Q So the numbers would be the same. 13 A Yes. 14

15 Q Okay. What if sitting is limited to no more than 30 minutes at one time? 16

17 A Well, they would–they could go into a sitting, sedentary, SVP 2 where he could stand and sit. 18

19 Q And let me add for this hypothetical—I am sorry.

20 A Sorry. 21 Q So that this—the testimony was sitting no more than 30 minutes at a 22 time and also based on the testimony I would limit the individual to simple, 23 routine tasks in a non-public setting. So with that additional limitation is there sedentary or light work? 24

25 A Well, sedentary where he could possibly sit/stand option and there would be the document preparer, which is the office handler work. In the 26 office. That’s 249.587-018. And national would be 175,000 and I can give 27 you another example. This is also non public. Another one would be 2 120,000 jobs–120,000 national. But that’s a non public. 3 (Id. at 75-77 (emphasis added).) The ALJ relied on the VE’s testimony and ruled that 4 Plaintiff was “capable of making a successful adjustment to other work that exists in 5 significant numbers in the national economy.” (Id. at 51.) 6 Plaintiff contends that although the ALJ determined that Plaintiff’s RFC required 7 him to “be able to alternate between sitting and standing/walking,” the hypothetical the 8 ALJ posed to the VE did not include an option to walk in combination with a limitation 9 with respect to sitting. (See J. Mot. at 7-8.) The Court has carefully reviewed the ALJ’s 10 questioning of the VE and does not find that the ALJ committed an error by posing an 11 incomplete hypothetical, as Plaintiff alleges. During the questioning, the ALJ expressly 12 inquired about a hypothetical individual limited to “standing or walking” up to two 13 hours, and subsequently further refined the hypothetical by limiting the individual to 14 “sitting no more than 30 minutes at a time,” and being capable of performing simple, 15 routine tasks in a non-public setting. (AR at 76.) The ALJ testified that such an individual 16 could perform the jobs of “polisher, eyeglass frames” (DOT 713.684-0382) and 17 “document preparer” (DOT 249,587-0183). (Id. at 76-77.) 18

19 20 2 The DOT describes a “polisher, eyeglass frames” job (713.684-038) as follows:

21 Polishes plastic eyeglass frames and temple pieces to remove scratches and pit marks, using polishing wheel: Applies abrasive compound to wheel surface, using brush. Starts 22 machine and holds and turns frame parts against wheel to polish parts and remove 23 defects. Inspects and feels polished parts to verify removal of flaws. Presses sandpaper against polishing wheel to remove abrasive residue in preparation for next sequence. 24 DOT 713.684-038, 1991 WL 679267. 25 3 The DOT describes the duties of a “document preparer” (249,587-018) as: 26 Prepares documents, such as brochures, pamphlets, and catalogs, for microfilming, 27 using paper cutter, photocopying machine, rubber stamps, and other work devices: 2 they are classified as “sedentary.” See DOT 713.684-038, 1991 WL 679267; DOT 3 249,587-018, 1991 WL 672349. The DOT defines “sedentary work” as work that 4 involves “sitting most of the time, but may involve walking or standing for brief periods 5 of time.” Id. This description is consistent with Plaintiff’s assessed RFC. (See AR at 42.) 6 Plaintiff argues that the VE “interpreted [the limitations posed by the ALJ] to be a 7 sit/stand option,” and left out “additional requirement of being able to walk.” (See J. 8 Mot. at 7.) Even if the ALJ committed an error by posing an incomplete hypothetical to 9 the VE, the error was harmless. The ALJ still would have found that Plaintiff could 10 perform the jobs of eyeglass polisher and document preparer, because Plaintiff’s 11 assessed RFC requires him to alternate between sitting and either standing or walking, 12 (see AR at 42), and Plaintiff’s RFC is encompassed in the more restrictive hypothetical, as 13 allegedly interpreted by the VE, which included a limitation to alternating between 14 sitting and standing. Therefore, the Court finds that any error in the hypothetical posed 15 to the VE was inconsequential to the ALJ’s final determination. See Stout, 454 F.3d at 16 1055 (an ALJ’s error is harmless when it is “inconsequential to the ultimate nondisability 17 determination.”); see also Timothy S. v. Berryhill, Case No. 3:17-cv-1789-AC, 2018 WL 18 5973393, at *2-3 (D. Or. Nov. 14, 2018) (finding that ALJ’s posing of a more restrictive 19 hypothetical RFC to the VE than the claimant’s assessed less restrictive RFC, was 20

21 pages as necessary to improve clarity or to reduce one or more pages into single page of 22 standard microfilming size, using photocopying machine. Stamps standard symbols on 23 pages or inserts instruction cards between pages of material to notify MICROFILM- CAMERA OPERATOR (business ser.) 976.682-022 of special handling, such as manual 24 repositioning, during microfilming. Prepares cover sheet and document folder for material and index card for company files indicating information, such as firm name and 25 address, product category, and index code, to identify material. Inserts material to be filmed in document folder and files folder for processing according to index code and 26 filming priority schedule. 27 DOT 249,587-018, 1991 WL 672349. 2 12-6258-OP, 2013 WL 5467430, at *1, *6 (C.D. Cal. Sept. 30, 2013) (finding that ALJ’s 3 hypothetical question to the VE limiting a claimant to light or sedentary work, which did 4 not include the claimant’s actual RFC limiting her to medium work, was harmless error 5 because the hypothetical was more restrictive). Plaintiff attempts to manufacture an 6 additional independent limitation beyond the ALJ’s assessed limitation that Plaintiff be 7 able to alternate between “sitting and standing/walking.” (See J. Mot. at 9-10; see also 8 AR at 42.) “[I]n hypotheticals posed to a vocational expert, the ALJ must only include 9 those limitations supported by substantial evidence.” Robbins v. Soc. Sec. Admin., 466 10 F.3d 880, 886 (9th Cir. 2006); SSR 96-8p, 1996 WL 374184, at *1 (“It is incorrect to find 11 that an individual has limitations beyond those caused by his or her medically 12 determinable impairment(s) and any related symptoms.”); see also Buckner-Larkin v. 13 Astrue, 450 F. App’x 626, 627 (9th Cir. 2011) (“sit-stand option . . . is most reasonably 14 interpreted as sitting or standing ‘at will’”); Welsh v. Berryhill, Case No. CV 17-4565 JC, 15 2018 WL 3017530, at *4 (C.D. Cal. June 13, 2018) (“Court opinions and related authority 16 generally suggest that a ‘sit/stand’ option would allow a claimant, at-will throughout the 17 day, to alternate between sitting and standing and for possibly lengthy periods of time 18 each, and with no limitation that the claimant remain at the work station and/or be on 19 task in the transitions.”); SSR 83-12, 1983 WL 31253, at *4 (noting that an individual 20 who needed to alternate between sitting and standing “may be able to sit for a time, 21 but must then get up and stand or walk for awhile before returning to sitting.”). 22 Therefore, to the extent there was any error in the ALJ’s hypothetical to the VE, it was 23 harmless. 24 For the above stated reasons, the Court finds that the Commissioner has satisfied 25 his burden at step five of the sequential evaluation process of demonstrating that work 26 exists in significant numbers in the national economy that Plaintiff could do despite his 27 limitations. 1 VI. CONCLUSION AND RECOMMENDATION 2 For the reasons set forth above, this Court RECOMMENDS that the decision of the 3 || Commissioner of Social Security be AFFIRMED and this action be dismissed. 4 IT IS ORDERED that no later than February 21, 2020, any party to this action may 5 || file written objections with the Court and serve a copy on all parties. The document 6 ||should be captioned “Objections to Report and Recommendation.” 7 IT IS FURTHER ORDERED that any reply to the objections shall be filed with the 8 || Court and served on all parties no later than February 28, 2020. The parties are advised 9 || that failure to file objections within the specified time may waive the right to raise those 10 || objections on appeal of the Court’s order. See Turner v. Duncan, 158 F.3d 449, 455 (9th 11 1998); Martinez v. Yist, 951 F.2d 1153, 1157 (9th Cir. 1991). 12 IT IS SO ORDERED. 13 || Dated: February 7, 2020 _ = _ 2 SF — 1s Honorable Michael S. Berg United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28