(SS) Bates v. Commissioner of Social Security

• Court: District Court, E.D. California
• Decided: January 13, 2025
• Docket: 2:23-cv-02056
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROGER LEE BATES, No. 2:23-cv-2056 AC 12 Plaintiff, 13 v. ORDER 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16

17 18 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 19 (“Commissioner”), denying his application for disability insurance benefits (“DIB”) under Title II 20 of the Social Security Act (“the Act”), 42 U.S.C. §§ 401-34.1 For the reasons that follow, 21 plaintiff’s motion for summary judgment will be DENIED, and defendant’s cross-motion for 22 summary judgment will be GRANTED. 23 I. PROCEDURAL BACKGROUND 24 Plaintiff applied for DIB on September 17, 2020, alleging that the disability onset date 25 was also September 17. Administrative Record (“AR”) 57.2 The application was disapproved 26 1 DIB is paid to disabled persons who have contributed to the Disability Insurance Program, and 27 who suffer from a mental or physical disability. 42 U.S.C. § 423(a)(1); Bowen v. City of New York, 476 U.S. 467, 470 (1986). 28 2 The AR is electronically filed at ECF Nos. 10-1 and 10-2 (OCR version). 1 initially and on reconsideration. Id. On June 21, 2022, ALJ Joseph R. Doyle presided over the 2 telephonic hearing on plaintiff’s challenge to the disapprovals. AR 76 – 103 (transcript). 3 Plaintiff, who appeared with his counsel Brian Mosich, was present at the hearing. AR 57, 76, 4 217. James Miller, a Vocational Expert (“VE”), also testified. AR 94-95. 5 On July 12, 2022, the ALJ found plaintiff “not disabled” under Sections 216(i) and 223(d) 6 of Title II of the Act, 42 U.S.C. §§ 416(i), 423(d). AR 57-70 (decision), 71-75 (exhibit list). On 7 July 25, 2023, after receiving Exhibits B16E and B17E—two Representative Briefs dated August 8 23 and September 17, 2022—as additional exhibits, the Appeals Council denied plaintiff’s 9 request for review. AR 1-6 (decision and additional exhibit list). This left the ALJ’s decision as 10 the final decision of the Commissioner of Social Security. 11 Plaintiff filed this action on September 22, 2023. ECF No. 1; see 42 U.S.C. § 405(g). 12 The parties consented to the jurisdiction of the magistrate judge. ECF Nos. 8-9. The parties’ 13 cross-motions for summary judgment, based upon the Administrative Record filed by the 14 Commissioner, have been briefed. ECF Nos. 13 (plaintiff’s summary judgment motion), 17 15 (defendant’s summary judgment motion). Plaintiff did not file a reply brief in support of his 16 motion. 17 II. FACTUAL BACKGROUND 18 Plaintiff was born on in 1966, and accordingly was, at age 54, a person closely 19 approaching advanced age under the regulations when he filed his application. AR 22; see 20 20 C.F.R. §§ 404.1563(d), 416.963(c). Plaintiff has a high school education, has finished three years 21 of college, and can communicate in English. AR 245, 320. Plaintiff worked as a material handler 22 from 2000 to 2002, as a supervisor in medical technology from 2004 to 2017, and in supply chain 23 management from 2019 to 2020. AR 245. 24 III. LEGAL STANDARDS 25 The Commissioner’s decision that a claimant is not disabled will be upheld “if it is 26 supported by substantial evidence and if the Commissioner applied the correct legal standards.” 27 Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2003). “‘The findings of the 28 Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . ..’” Andrews 1 v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (quoting 42 U.S.C. § 405(g)). 2 Substantial evidence is “more than a mere scintilla,” but “may be less than a 3 preponderance.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). “It means such 4 evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. 5 Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted). “While inferences from the 6 record can constitute substantial evidence, only those ‘reasonably drawn from the record’ will 7 suffice.” Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006) (citation omitted). 8 Although this court cannot substitute its discretion for that of the Commissioner, the court 9 nonetheless must review the record as a whole, “weighing both the evidence that supports and the 10 evidence that detracts from the [Commissioner’s] conclusion.” Desrosiers v. Secretary of HHS, 11 846 F.2d 573, 576 (9th Cir. 1988); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (“The 12 court must consider both evidence that supports and evidence that detracts from the ALJ’s 13 conclusion; it may not affirm simply by isolating a specific quantum of supporting evidence.”). 14 “The ALJ is responsible for determining credibility, resolving conflicts in medical 15 testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th 16 Cir. 2001). “Where the evidence is susceptible to more than one rational interpretation, one of 17 which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 18 278 F.3d 947, 954 (9th Cir. 2002). However, the court may review only the reasons stated by the 19 ALJ in his decision “and may not affirm the ALJ on a ground upon which he did not rely.” Orn 20 v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 21 2003) (“It was error for the district court to affirm the ALJ’s credibility decision based on 22 evidence that the ALJ did not discuss”). 23 The court will not reverse the Commissioner’s decision if it is based on harmless error, 24 which exists only when it is “clear from the record that an ALJ’s error was ‘inconsequential to the 25 ultimate nondisability determination.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 26 2006) (quoting Stout v. Commissioner, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch v. 27 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 28 1 IV. RELEVANT LAW 2 Disability Insurance Benefits and Supplemental Security Income are available for every 3 eligible individual who is “disabled.” 42 U.S.C. §§ 402(d)(1)(B)(ii) (DIB), 1381a (SSI). Plaintiff 4 is “disabled” if she is “‘unable to engage in substantial gainful activity due to a medically 5 determinable physical or mental impairment . . ..’” Bowen v. Yuckert, 482 U.S. 137, 140 (1987) 6 (quoting identically worded provisions of 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A)). 7 The Commissioner uses a five-step sequential evaluation process to determine whether an 8 applicant is disabled and entitled to benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); 9 Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003) (setting forth the “five-step sequential evaluation 10 process to determine disability” under Title II and Title XVI). The following summarizes the 11 sequential evaluation: 12 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. 13 20 C.F.R. § 404.1520(a)(4)(i), (b). 14 Step two: Does the claimant have a “severe” impairment? If so, 15 proceed to step three. If not, the claimant is not disabled. 16 Id. §§ 404.1520(a)(4)(ii), (c). 17 Step three: Does the claimant’s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, 18 Subpt. P, App. 1? If so, the claimant is disabled. If not, proceed to step four. 19 Id. §§ 404.1520(a)(4)(iii), (d). 20 Step four: Does the claimant’s residual functional capacity [RFC] 21 make him capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. 22 Id. §§ 404.1520(a)(4)(iv), (e), (f). 23 Step five: Does the claimant have the residual functional capacity 24 perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 25 Id. §§ 404.1520(a)(4)(v), (g). 26 27 The claimant bears the burden of proof in the first four steps of the sequential evaluation 28 process. 20 C.F.R. §§ 404.1512(a) (“In general, you have to prove to us that you are blind or 1 disabled”), 416.912(a) (same); Bowen, 482 U.S. at 146 n.5. However, “[a]t the fifth step of the 2 sequential analysis, the burden shifts to the Commissioner to demonstrate that the claimant is not 3 disabled and can engage in work that exists in significant numbers in the national economy.” Hill 4 v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); Bowen, 482 U.S. at 146 n.5. 5 V. THE ALJ’s DECISION 6 The ALJ made the following findings: 7 1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2026. 8 2. The claimant has not engaged in substantial gainful activity since 9 November 1, 2021, the alleged onset date (20 CFR 404.1571 et seq.). 10 3. The claimant has the following severe impairments: diabetes mellitus and diabetic peripheral neuropathy (20 CFR 404.1520(c)). 11 4. The claimant does not have an impairment or combination of 12 impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 13 CFR 404.1520(d), 404.1525 and 404.1526). 14 5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform 15 light work as defined in 20 CFR 404.1567(b) except could only occasionally climb ladders, ropes or scaffolds; could only 16 occasionally climb stairs and ramps; could only occasionally engage in balance on uneven surfaces; and could have only occasional 17 exposure to hazards, defined as work with machinery having moving mechanical parts, use of commercial vehicles and exposure to 18 unprotected heights. 19 6. The claimant is capable of performing past relevant work as a stocker/material handler. This work does not require the performance 20 of work-related activities precluded by the claimant’s residual functional capacity (20 CFR 404.1565). 21 7. The claimant has not been under a disability, as defined in the 22 Social Security Act, from November 1, 2021, the amended alleged onset date, through the date of this decision (20 CFR 404.1520(g)). 23 24 AR 60-70.3 25 As noted, the ALJ concluded that plaintiff was “not disabled” under Title II of the Act. 26 AR 70. 27

28 3 The thirteenth page of the ALJ’s decision appears before the twelfth in the record. AR 68-69. 1 VI. ANALYSIS 2 A. Overview 3 Plaintiff alleges that the ALJ erred at step four by finding that he can return to his previous 4 job as a material handler based on how the job was actually performed in the past. ECF No. 13 at 5 5. Specifically, plaintiff asserts that “[t]he ALJ erred because Bates can only stand and walk for 6 six hours in a workday and the job material handler as performed by Bates required Bates to stand 7 and walk for seven hours a day.” Id. Plaintiff argues that instead of remanding the case, the court 8 should reverse the Commissioner’s final decision and award benefits as requested. Id. at 7. 9 A plaintiff may be found not disabled at step four based on a finding that they can perform 10 past relevant work as it was actually performed, or as it is generally performed in the national 11 economy. Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001). “The claimant has the burden 12 of proving an inability to return to his former type of work and not just to his former job.” Villa 13 v. Heckler, 797 F.2d 794, 798 (1986). “The regulations advise an ALJ to first consider past work 14 as actually performed, and then as usually performed.” Pinto, 249 F.3d at 845 (citing SSR 96-8P, 15 1996 WL 374184, at *3). To find that a claimant cannot return to his previous job, an ALJ’s 16 findings of fact must include (1) the plaintiff’s RFC, (2) the actual functional demands of the past 17 job/occupation, and (3) whether the plaintiff’s RFC would permit a return to his or her past job or 18 occupation. Pinto, 249 F.3d at 845. 19 Here, as explained below, plaintiff has failed to establish that the job of “material handler” 20 as actually performed requires more than six hours of standing in an eight-hour day. Nor does 21 plaintiff establish that his RFC prohibits him from standing more than six hours in an eight-hour 22 day. 23 B. The ALJ Appropriately Limited Plaintiff to Light Work 24 Applicable regulations define “light work” as “lifting no more than 20 pounds at a time 25 with frequent lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. § 404.1567(b). 26 Alternatively, a job involves light work if it “requires a good deal of walking or standing, 27 or…sitting most of the time with some pushing and pulling of arm or leg controls.” Id. A 28 claimant is only “considered capable of performing a full or wide range of light work” if he can 1 do “substantially all of these activities.” Id. The ALJ’s fifth finding identifies the plaintiff’s RFC 2 as “light work” with additional restrictions. AR 63. He found that the plaintiff can “only 3 occasionally” climb ladders, ropes, scaffold, stairs, and ramps, or balance on uneven surfaces. 4 AR 63. Defendant argues that the plaintiff’s motion does not dispute the ALJ’s finding as to his 5 RFC. ECF No. 17 at 4. 6 Plaintiff does not expressly object to the ALJ’s limitation of plaintiff to light work. 7 Rather, he seems to imply that a six hour standing restriction was necessarily included in the RFC 8 and that the step four finding is invalid because inconsistent with that restriction. For example, 9 plaintiff argues that the ALJ credited Dr. Ruo, Dr. Samplay, and Dr. Satish Sharma’s assertions 10 that the plaintiff could only stand and walk for six hours per day. ECF No. 13 at 5-6; see AR 120, 11 122, 131, 140, 413. He further argues that the ALJ credited “lower extremity limitations” like 12 “active diabetic neuropathy complicated by lower extremity peripheral neuropathy with balance 13 problems.” Id. at 5-6 (citing AR 68). Plaintiff notes that in doing so, the ALJ acknowledged that 14 the plaintiff has used a cane at recent medical appointments. ECF No. 13 at 6 (citing AR 68). 15 Plaintiff’s argument misstates several of the ALJ’s findings. Most significantly, the ALJ 16 simply did not credit any medical opinion that found plaintiff could stand and walk for only six 17 hours a day. See id. The ALJ discussed the opinions of the named physicians, but expressly 18 rejected them to the extent they found great restrictions than assessed in the RFC. AR 67-69. Dr. 19 Ruo restricted the plaintiff to light work without further restrictions, while Dr. Samplay 20 recommended “adding climbing, stooping, balancing, temperature and hazard limits.” Id. Dr. 21 Sharma recommended an RFC of light work with restrictions on stooping and frequent handling. 22 AR 68-69. Plaintiff does not cite to any statements by these doctors expressly finding a six-hour 23 standing and walking maximum, and in any event the ALJ found all three opinions 24 “unpersuasive” as to additional limitations and held that the medical evidence overall was “most 25 consistent with the light residual functional capacity adopted[.]” AR 67-69.4 26 4 Moreover, although the ALJ acknowledged that the plaintiff had “presented with a cane at 27 recent appointments,” both his stability and motorpower were “normal[.]” AR 67. The ALJ ultimately held that the use of a cane was not “medically necessary” and noted that medical 28 (continued…) 1 To the extent that plaintiff challenges the RFC assessment of “light work” with some 2 additional restrictions, he fails to identify error. 3 C. The ALJ Did Not Err in Finding That Plaintiff’s RFC Allows Him to Return to His Prior 4 Work as Actually Performed. 5 In determining whether a claimant can do past relevant work based on the current RFC, 6 the Commissioner may both ask the claimant about his past work and use a vocational expert to 7 provide necessary evidence. 20 C.F.R. §404.1560(b)(2). The vocational expert “may offer 8 relevant evidence within his or her expertise or knowledge concerning the physical and mental 9 demands of a claimant’s past relevant work, either as the claimant actually performed it or as 10 generally performed in the national economy.” Id. If a vocational expert’s hypothetical does not 11 reflect all the claimant’s limitations, however, then the “expert’s testimony has no evidentiary 12 value to support a finding that the claimant can perform jobs in the national economy.” Matthews 13 v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993) (citing DeLorme v. Sullivan, 924 F.2d 841, 850 (9th 14 Cir. 1991)). 15 The ALJ’s decision focused on the plaintiff’s prior job as a “stocker/material handler”. 16 AR 68. It noted that the plaintiff had testified that he had lifted no more than 20 pounds as a lead 17 material handler from 2007 to 2016. AR 68. Based on this testimony, the VE concluded that the 18 plaintiff had actually performed the job “at light.” AR 68, 70. The VE further testified, and the 19 ALJ held, that the plaintiff could therefore perform the job “within the parameters of his light 20 residual functional capacity.” AR 70. 21 Plaintiff argues that the ALJ had found that the plaintiff can only stand and walk for six 22 hours a day, whereas he needed to stand and walk for seven hours a day as a job material handler. 23 ECF No. 13 at 5-6 (citing AR 271). Defendant responds that in finding an RFC of “light work,” 24 the ALJ never held that the plaintiff was precluded from working a job that required standing or 25 walking for seven hours a day. ECF No. 17 at 5. 26 The ALJ identified Plaintiff’s RFC as “light work” with the caveat that Plaintiff can “only 27 exams since the disability onset date “generally noted normal motor power[.]” 28 1 occasionally” climb ladders, ropes, scaffold, stairs, and ramps, or balance on uneven surfaces. 2 AR 63. The decision never quantifies how many hours of standing and walking a day this RFC 3 permits. The definition of “light work” in 20 C.F.R. § 404.1567 only says that a job that 4 “requires a good deal of walking or standing” falls in this category “[e]ven though the weight 5 lifted may be very little[.]” This mean that a job that does not require frequently lifting “objects 6 weighing up to 10 pounds” can still qualify as light work if it meets the “good deal” minimum 7 threshold, which the Dictionary of Occupational Titles (“DOT”) defines as “approximately 6 8 hours of an 8-hour workday.” See S.S.R. 83-10. “Approximately six hours a day does not mean a 9 maximum of six hours a day[.]” Mitzi D. v. Saul, No. SA CV 18-01065-DFM, 2019 U.S. Dist. 10 LEXIS 228564 at *3, 2019 WL 8112507 at *2 (C.D. Cal. Dec. 13, 2019) (emphasis original). 11 The DOT does not limit the amount of standing and walking in “light work” to six hours per 12 eight-hour shift. 13 Plaintiff cites the unpublished order in Talley v. Kijakazi to argue that “light work” is a 14 “term of art in disability law” that inherently includes a limitation of “standing or walking, off 15 and on, for a total of approximately 6 hours of an 8-hour workday.” ECF No. 13 at 6 (citing No. 16 21-55071, 2021 U.S. App. LEXIS 37021 at *2, 2021 WL 5917596 at *1 (9th Cir. Dec. 15, 2021) 17 (quoting Terry v. Saul, 998 F.3d 1010, 1013 (9th Cir. 2021)).) The question in Talley was 18 whether the ALJ can rely on a vocational expert’s testimony based on a hypothetical question, 19 when the hypothetical did not explicitly incorporate the claimant’s standing and walking 20 limitation. 2021 U.S. App. LEXIS 37021 at *1-2, 2021 WL 5917596 at *1. The ALJ did ask the 21 expert to consider the claimant’s functional capacity for “light work” as defined in the DOT. 22 2021 U.S. App. LEXIS 37021 at *2, 2021 WL 5917596 at *1. The court held that the expert 23 would have understood that “light work” included the limitation on standing or walking for 24 “approximately” six hours. Id. This holding does not change the definition of “light work” or 25 impose a limit to the number of hours spent standing or walking. 26 Plaintiff failed to demonstrate both that he was limited to six hours of standing or walking, 27 and that a “light work” limitation eliminates a job requiring seven hours of standing or walking. 28 He therefore fails to show that the ALJ erred in concluding he could perform past relevant work 1 | as material handler, as actually performed, due to his “light work” RFC. 2 VI. CONCLUSION 3 For the reasons set forth above, IT IS HEREBY ORDERED that: 4 1. Plaintiffs motion for summary judgment (ECF No. 13) is DENIED; 5 2. The Commissioner’s cross-motion for summary judgment (ECF No. 17) is 6 | GRANTED; 7 3. This Commissioner’s final decision in this matter is AFFIRMED; and 8 4. The Clerk of the Court shall enter judgment for the defendant and close this case. 9 | DATED: January 10, 2025 10 Chthwen— Clare ALLISON CLAIRE 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10