Hoopai v. Barnhart ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OREN D. HOOPAI, 
Plaintiff-Appellant,
No. 05-16128
v.
MICHAEL J. ASTRUE,*  D.C. No.
CV-04-00076-DAE
Commissioner, Social Security
OPINION
Administrator,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Hawaii
David A. Ezra, District Judge, Presiding
Argued and Submitted
April 19, 2007—San Francisco, California
Filed August 27, 2007
Before: Dorothy W. Nelson and Consuelo M. Callahan,
Circuit Judges, and Cormac J. Carney,** District Judge.
Opinion by Judge D.W. Nelson
*Michael J. Astrue is substituted for his predecessor Jo Anne Barnhardt
as Commissioner of the Social Security Administration. Fed. R. App. P.
43(c)(2).
**The Honorable Cormac J. Carney, United States District Judge for
the Central District of California, sitting by designation.
10623
10626 HOOPAI v. ASTRUE
COUNSEL
Harvey P. Sackett of San Jose, California, briefed and argued
for the appellants.
Peter D. Keisler of San Francisco, California, briefed and
argued for the appellee.
OPINION
D.W. NELSON, Senior Circuit Judge:
Oren D. Hoopai (“Hoopai”) appeals the district court’s
summary judgment order upholding the Commissioner of
Social Security’s denial of his application for disability insur-
ance benefits under Title II of the Social Security Act. Hoo-
pai’s alleged disability was based on back pain and
depression. We have jurisdiction pursuant to 28 U.S.C.
§ 1291, and we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Hoopai is a 50-year-old man with an eleventh grade educa-
tion and work history as a construction laborer, heavy equip-
ment operator, and truck driver. He asserts that back pain and
mental impairments from an on-the-job injury have caused
him to be permanently and completely disabled. The Admin-
istrative Law Judge (“ALJ”) followed the five-stage proce-
dure for evaluating disability claims set forth in 20 C.F.R.
§ 404.1520. The ALJ held that Hoopai established a prima
facie case of disability, that he was not able to perform any
HOOPAI v. ASTRUE 10627
of his past relevant “heavy” work, and that he was limited to
“light work.” However, the ALJ found under step five that
there was a significant number of jobs that Hoopai could per-
form that were consistent with his age, education, work expe-
rience and residual capacity to do light work. The ALJ
concluded that Hoopai’s condition was not a “disability,” as
defined in the Social Security Act.
The Social Security Appeals Council denied Hoopai’s
request to review the ALJ’s decision. Hoopai appealed to the
district court, in which he argued: (1) the ALJ erred in step
five of the evaluation process by not seeking the testimony of
a vocational expert to determine the range of work permitted
by the claimant’s exertional limitations in light of his alleg-
edly severe non-exertional limitation of depression, (2) the
ALJ failed to make findings, as required by case law, as to the
degree of limitations in each of the functional areas delineated
in 20 C.F.R. § 404.1520a - i.e., activities of daily living;
social functioning; concentration, persistence or pace; and
episodes of decompensation; and (3) the ALJ erred in not
identifying the specific number of purported alternate jobs
that existed in the economy that could be performed by Hoo-
pai and in failing to identify the sources that supported his
conclusions. The district court found that the ALJ’s decision
was supported by substantial evidence and was free of legal
error. We agree.
II. STANDARD OF REVIEW
A district court’s order upholding the Commissioner’s
denial of benefits is reviewed de novo. See Moisa v. Barnhart,
367 F.3d 882, 885 (9th Cir. 2004). The decision of the Com-
missioner must be affirmed if it is supported by substantial
evidence and the Commissioner applied the correct legal stan-
dards. See Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir.
2003). Substantial evidence is relevant evidence, considering
the entire record, which a reasonable person might accept as
10628 HOOPAI v. ASTRUE
adequate to support a conclusion. See Morgan v. Comm’r of
Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999).
III. DISCUSSION
The Social Security Regulations establish a five-step
sequential evaluation process for determining whether a
claimant is disabled. See 20 C.F.R. § 404.1520. A claimant
must be found disabled if she proves: “(1) that she is not pres-
ently engaged in a substantial gainful activity; (2) that her dis-
ability is severe, and (3) that her impairment meets or equals
one of the specific impairments described in the regulations.”
Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir. 2002). If the
impairment does not meet or equal one of the specific impair-
ments described in the regulations, the claimant can still
establish a prima facie case of disability by proving at step
four that “in addition to the first two requirements, . . . she is
not able to perform any work that she has done in the past.”
Id. Once the claimant establishes a prima facie case, the bur-
den of proof shifts to the agency at step five to demonstrate
that “the claimant can perform a significant number of other
jobs in the national economy.” Id. This step-five determina-
tion is made on the basis of four factors: the claimant’s resid-
ual functional capacity, age, work experience and education.
To assist in the step-five determination, the Social Security
Administration established the Medical-Vocational Guide-
lines (the grids), which “consist of a matrix of [the four fac-
tors] and set forth rules that identify whether jobs requiring a
specific combination of these factors exist in significant num-
bers in the national economy.” Heckler v. Campbell, 461 US.
458, 461-62 (1983). When the grids match the claimant’s
qualifications, “the guidelines direct a conclusion as to
whether work exists that the claimant could perform.” Id. at
462. When the grids do not match the claimant’s qualifica-
tions, the ALJ can either (1) use the grids as a framework and
make a determination of what work exists that the claimant
can perform, see Soc. Sec. Ruling 83-14, 1983 WL 31254HOOPAI v. ASTRUE 10629
(S.S.A.), or (2) rely on a vocational expert when the claimant
has significant non-exertional limitations. Desrosiers v. Sec’y
of Health and Human Servs., 846 F.2d 573, 577 (9th Cir.
1988).
The ALJ held that Hoopai had established a prima facie
case of disability. In particular, Hoopai was deemed to have
proven at steps one and two that he was not presently engaged
in a substantial gainful activity and that medical evidence
demonstrated that the combination of his low back pain and
depression was severe within the meaning of the regulations.
However, the ALJ held that the combined impairments did
not meet or equal one of the specific impairments listed in the
regulations as required under step three. At step four, the ALJ
found that the claimant had demonstrated that he could not
perform his past relevant work, which involved heavy lifting.
Instead, Hoopai only had the residual functional capacity to
perform light work. At step five, the ALJ relied on the grids
as a framework and concluded that there was a significant
number of jobs in the national economy that the claimant
could perform. Specifically, the ALJ determined that the
claimant could perform such jobs as scale operator, street
cleaner, silver wrapper and basket filler.
A. Vocational Expert
The parties do not dispute the ALJ’s determination at steps
one through four. Instead, the dispute centers around the
ALJ’s step-five determination. Hoopai argues that the ALJ
erred at step five by assuming the role of the vocational expert
and determining what alternative work he believed the claim-
ant could perform, without invoking vocational expert testi-
mony. He asserts that his depression was a significant non-
exertional limitation and therefore the ALJ was required, in
accordance with Ninth Circuit case law, to seek the testimony
of a vocational expert.
[1] The ALJ can use the grids without vocational expert
testimony when a non-exertional limitation is alleged because
10630 HOOPAI v. ASTRUE
the grids “provide for the evaluation of claimants asserting
both exertional and non-exertional limitations.” Razey v.
Heckler, 785 F.2d 1426, 1430 (9th Cir. 1986). But the grids
are inapplicable “[w]hen a claimant’s non-exertional limita-
tions are ‘sufficiently severe’ so as to significantly limit the
range of work permitted by the claimant’s exertional limita-
tions.” Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir.
1988). Hoopai reasons that since the ALJ determined that his
depression impairment was severe at step two, then it must
constitute a significant non-exertional limitation at step five
such that the assistance of a vocational expert is required.
This argument lacks merit.
First, at step two, the ALJ never found that Hoopai’s
depression impairment alone was severe. Instead, the ALJ
determined that Hoopai’s back pain and depression impair-
ments were severe. But even assuming that the ALJ found
that the depression impairment alone was severe, a step-two
determination that a non-exertional impairment is severe does
not require that the ALJ seek the assistance of a vocational
expert at step five.
At step five a vocational expert’s testimony is required
when a non-exertional limitation is “ ‘sufficiently severe’ so
as to significantly limit the range of work permitted by the
claimant’s exertional limitation.” Id. The step two and step
five determinations require different levels of severity of limi-
tations such that the satisfaction of the requirements at step
two does not automatically lead to the conclusion that the
claimant has satisfied the requirements at step five.
[2] The regulations guiding the step-two determination of
whether a disability is severe is merely a threshold determina-
tion of whether the claimant is able to perform his past work.
Thus, a finding that a claimant is severe at step two only
raises a prima facie case of a disability. See Tackett v. Apfel,
180 F.3d 1094, 1100 (9th Cir. 1999). In contrast, the step-five
determination is necessary to ascertain whether there is a sig-
HOOPAI v. ASTRUE 10631
nificant number of jobs in the national economy that the
claimant can perform. The grids provide broad categories of
exertional limitations (and to a certain extent non-exertional
limitations) and the range of jobs in each category. Thus, built
into the step-five determination and the grids is recognition
that the claimant has met the threshold requirement for a
severe disability at step two.
[3] However, a vocational expert is required only when
there are significant and “sufficiently severe” non-exertional
limitations not accounted for in the grid. Clearly, the severity
of the limitations at step five that would require use of a voca-
tional expert must be greater than the severity of impairments
determined at step two, otherwise the two steps would col-
lapse and a vocational expert would be required in every case
in which a step-two determination of severity is made. This
would defeat the purpose of the grids because a claimant
could not reach the step-five determination without making
out a prima facie case of a severe disability at step two. Heck-
ler, 461 U.S. at 461 (explaining that the reason for establish-
ing the grids as a substitute for vocational experts in most
cases was to improve uniformity in the treatment of similarly
situated claimants and increase efficiency in the disposition of
cases). Therefore, we hold that satisfaction of the step-two
threshold requirement that a claimant prove her limitations are
severe is not dispositive of the step-five determination of
whether the non-exertional limitations are sufficiently severe
such as to invalidate the ALJ’s exclusive use of the grids
without the assistance of a vocational expert. Instead, an ALJ
is required to seek the assistance of a vocational expert when
the non-exertional limitations are at a sufficient level of sever-
ity such as to make the grids inapplicable to the particular
case.
In this case we affirm the ALJ and hold that Hoopai’s
depression was not a sufficiently severe non-exertional limita-
tion that required the assistance of a vocational expert. Sub-
stantial evidence in the form of psychological evaluations by
10632 HOOPAI v. ASTRUE
Dr. Kathleen Brown and Dr. Robert Lambe and a review of
the record by Dr. Harvey Bilik supports the ALJ’s conclusion
Hoopai’s depression was not sufficiently severe such that it
significantly affects his ability to work beyond the exertional
limitations.
Dr. Brown and Dr. Lambe diagnosed Hoopai with moder-
ately significant forms of depression and only prescribed lim-
ited treatment. Although Dr. Lambe concluded that it was
unlikely that Hoopai would be able to function in a normal
work environment, Dr. Brown determined that Hoopai had
exaggerated his symptoms.
[4] Dr. Bilik reviewed the record and performed a mental
residual functional capacity assessment of Hoopai. He con-
cluded that Hoopai was not significantly limited in seventeen
of the twenty categories of possible impairments in under-
standing and memory. Dr. Bilik determined that Hoopai was
moderately limited in: his ability to maintain attention and
concentration for extended periods; his ability to perform
activities within a schedule, maintain regular attendance, and
be punctual with customary tolerance; and his ability to com-
plete a normal workday and workweek without interruption
from psychologically-based symptoms and to perform at a
consistent pace without an unreasonable number and length of
rest periods. Dr. Bilik did determine that Hoopai had symp-
toms of depression, however, the functional limitations of the
claimant’s depression on his activities of daily living and
maintaining social functioning were mild, and the limitations
were moderate on his ability to maintain concentration, per-
sistence and pace.
[5] We have not previously held mild or moderate depres-
sion to be a sufficiently severe non-exertional limitation that
significantly limits a claimant’s ability to do work beyond the
exertional limitation. As a result, we hold that in this case,
substantial evidence supports the ALJ’s conclusion that the
depression was not a sufficiently severe non-exertional limita-
HOOPAI v. ASTRUE 10633
tion that prohibited the ALJ’s reliance on the grids without the
assistance of a vocational expert.
B. Opportunity to Cross-Examine Vocational Expert or
Question the ALJ
Hoopai contends that he was improperly denied the oppor-
tunity to cross-examine a vocational expert or question the
ALJ as to alternative jobs available in the economy. Hoopai
relies on Burkhart to support this contention. In Burkhart, the
ALJ speculated, without reference to any source, that the
claimant “could do ‘yard and lawn maintenance’ or be a
‘watchman or security monitor.’ ” Burkhart, 856 F.2d at
1341. He added that even taking into account the claimant’s
non-exertional limitations, “there are hundreds of jobs left
which Mr. Burkhart can do.” Id. We determined that these
speculations were based on information outside of the record
and that therefore Burkhart was effectively deprived “of an
opportunity to cross-examine a witness or rebut testimony.”
Id.[6] Burkhart is distinguishable from the present case. In
this case, the ALJ relied on the grids and determined that jobs
exist in significant numbers in the national economy that
accommodate the claimant’s residual functional capacity.
Since the claimant’s non-exertional limitations did not signifi-
cantly erode the occupational base of jobs that Hoopai could
perform, he concluded that there was a significant number of
jobs available. The ALJ did identify three specific jobs that
were available, relying on the Dictionary of Occupational
Titles. However, this source, which is a part of the grids, was
part of the record. 20 C.F.R. § 404.1569. Therefore, the
claimant was not entitled to question the ALJ on the alterna-
tive jobs available.
C. Specific Findings on Functional Limitations
[7] Finally, Hoopai contends that the ALJ failed to comply
with 20 C.F.R. § 404.1520a(c)(3) by not issuing a specific
10634 HOOPAI v. ASTRUE
finding in each of the functional areas based on all of the enu-
merated functional limitations of his mental impairment. This
argument lacks merit. According to § 404.1520a(c)(3), the
ALJ is required to rate the degree of functional limitations in
four areas: activities of daily living; social functioning; con-
centration, persistence, or pace; and episodes of decompensa-
tion. The ALJ clearly met this requirement by rating and
assessing Hoopai’s limitations in each of these four functional
areas. The ALJ was not required to make any more specific
findings of the claimant’s functional limitations.
IV. CONCLUSION
We affirm the district court’s conclusion that there was
substantial evidence that Hoopai did not suffer from a suffi-
ciently severe non-exertional limitation that would require the
assistance of a vocational expert in the ALJ’s step-five deter-
mination. We also hold that Hoopai was not entitled to ques-
tion the ALJ on the alternative jobs available. Finally, we hold
that the ALJ made specific findings of functional limitations
as required by the social security regulations.
AFFIRMED.