Susana Hernandez-Rios v. Andrew Saul ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 SUSANA H.-R.,1 ) Case No. 2:19-cv-09338-JDE ) 12 ) Plaintiff, ) MEMORANDUM OPINION AND 13 ) ORDER ) 14 v. ) ) 15 ANDREW M. SAUL, ) ) Commissioner of Social Security, ) 16 ) ) 17 Defendant. ) 18 19 Plaintiff Susana H.-R. (“Plaintiff”) filed a Complaint on October 30, 20 2019, seeking review of the Commissioner’s denial of her application for 21 supplemental security income (“SSI”). The parties filed a Joint Submission (“Jt. 22 Stip.”) regarding the issues in dispute on June 29, 2020. The matter now is 23 ready for decision. 24 25 26 1 Plaintiff's name has been partially redacted in accordance with Fed. R. Civ. P. 27 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. 28 1 I. 2 BACKGROUND 3 Plaintiff filed her application for SSI on December 17, 2015, alleging 4 disability starting on August 23, 2013. AR 30, 221-29. On June 7, 2018, after 5 her application was denied initially and on reconsideration (AR 105, 124), 6 Plaintiff, represented by counsel, testified before an Administrative Law Judge 7 (“ALJ”), and a vocational expert (“VE”) testified telephonically. AR 48-88. 8 On September 28, 2018, the ALJ concluded Plaintiff was not disabled. 9 AR 30-40. The ALJ found that Plaintiff had not engaged in substantial gainful 10 activity since December 17, 2015, the application date. AR 32. The ALJ found 11 Plaintiff had severe impairments of: lumbar spine disorder, sciatica; alcohol- 12 induced depressive disorder; and generalized anxiety disorder. AR 32. The ALJ 13 also found Plaintiff did not have an impairment or combination of impairments 14 that met or medically equaled a listed impairment (AR 33-34), and she had the 15 residual functional capacity (“RFC”) to perform a range of light work as 16 defined in 20 C.F.R. § 416.967(b)2: 17 [E]xcept no more than occasional climbing, balancing, stooping, 18 kneeling, crouching[,] and crawling[;] no greater than simple, 19 routine tasks[;] no use of foot controls with the right[-]lower 20 2 “Light work” is defined as 21 22 lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very 23 little, a job is in this category when it requires a good deal of walking or 24 standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or 25 wide range of light work, you must have the ability to do substantially all of 26 these activities. 27 20 C.F.R. § 416.967(b); see also Rendon G. v. Berryhill, 2019 WL 2006688, at *3 n.6 (C.D. Cal. May 7, 2019). 28 1 extremity, with a sit/stand option allowing the ability to change 2 positions 2 times per hour, and lifting no greater than 10 pounds. 3 AR 34-38. 4 The ALJ found Plaintiff was unable to perform her past relevant work as 5 a stores laborer (Dictionary of Occupational Titles [“DOT”] 922.687-058). AR 6 39. The ALJ found that Plaintiff, at age 42 when her application was filed, was 7 defined as a “younger individual.” AR 39. The ALJ also found that Plaintiff 8 had marginal education and “is able to communicate in English.” AR 39. 9 The ALJ next considered that, if Plaintiff had the RFC to perform the full 10 range of light work, a finding of “not disabled” would be directed by the 11 Medical-Vocational rules. AR 39. However, because Plaintiff’s ability to 12 perform all or substantially all the requirements of light work was impeded by 13 additional limitations, the ALJ consulted the testimony of the VE. AR 39. 14 Considering Plaintiff’s age, education, work experience, RFC, and the VE’s 15 testimony, the ALJ concluded Plaintiff was capable of performing jobs that 16 exist in significant numbers in the national economy, including the unskilled 17 jobs of: assembler of small products (DOT 706.684-022), photocopy machine 18 operator (DOT 207.685-014), and mail clerk/sorter (DOT 209.687-026). AR 19 39-40. Thus, the ALJ concluded Plaintiff was not under a “disability,” as 20 defined in the Social Security Act, since the application’s filing date. AR 40. 21 Plaintiff’s request for review of the ALJ’s decision by the Appeals Council was 22 denied, making the ALJ’s decision the agency’s final decision. AR 1-7. 23 II. 24 LEGAL STANDARDS 25 A. Standard of Review 26 Under 42 U.S.C. § 405(g), this court may review the Commissioner’s 27 decision to deny benefits. The ALJ’s findings and decision should be upheld if 28 they are free from legal error and supported by substantial evidence based on 1 the record as a whole. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2 2015) (as amended); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 3 Substantial evidence means such relevant evidence as a reasonable person 4 might accept as adequate to support a conclusion. Lingenfelter v. Astrue, 504 5 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla, but less than a 6 preponderance. Id. To determine whether substantial evidence supports a 7 finding, the reviewing court “must review the administrative record as a whole, 8 weighing both the evidence that supports and the evidence that detracts from 9 the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th 10 Cir. 1998). “If the evidence can reasonably support either affirming or 11 reversing,” the reviewing court “may not substitute its judgment” for that of 12 the Commissioner. Id. at 720-21; see also Molina v. Astrue, 674 F.3d 1104, 13 1111 (9th Cir. 2012) (“Even when the evidence is susceptible to more than one 14 rational interpretation, [the court] must uphold the ALJ’s findings if they are 15 supported by inferences reasonably drawn from the record.”). 16 Lastly, even if an ALJ errs, the decision will be affirmed where such 17 error is harmless (Molina, 674 F.3d at 1115), that is, if it is “inconsequential to 18 the ultimate nondisability determination,” or if “the agency’s path may 19 reasonably be discerned, even if the agency explains its decision with less than 20 ideal clarity.” Brown-Hunter, 806 F.3d at 492 (citation omitted). 21 B. Standard for Determining Disability Benefits 22 When the claimant’s case has proceeded to consideration by an ALJ, the 23 ALJ conducts a five-step sequential evaluation to determine at each step if the 24 claimant is or is not disabled. See Ford v. Saul, 950 F.3d 1141, 1148-49 (9th 25 Cir. 2020); Molina, 674 F.3d at 1110. 26 First, the ALJ considers whether the claimant currently works at a job 27 that meets the criteria for “substantial gainful activity.” Id. If not, the ALJ 28 proceeds to a second step to determine whether the claimant has a “severe” 1 medically determinable physical or mental impairment or combination of 2 impairments that has lasted for more than twelve months. Id. If so, the ALJ 3 proceeds to a third step to determine whether the claimant’s impairments 4 render the claimant disabled because they “meet or equal” any of the “listed 5 impairments” set forth in the Social Security regulations at 20 C.F.R. Part 404, 6 Subpart P, Appendix 1. See Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 7 996, 1001 (9th Cir. 2015). If the claimant’s impairments do not meet or equal a 8 “listed impairment,” before proceeding to the fourth step the ALJ assesses the 9 claimant’s RFC, that is, what the claimant can do on a sustained basis despite 10 the limitations from her impairments. See 20 C.F.R. § 416.920(a)(4); Social 11 Security Ruling (“SSR”) 96-8p. 12 After determining the claimant’s RFC, the ALJ proceeds to the fourth 13 step and determines whether the claimant has the RFC to perform her past 14 relevant work, either as she “actually” performed it when she worked in the 15 past, or as that same job is “generally” performed in the national economy. See 16 Stacy v. Colvin, 825 F.3d 563, 569 (9th Cir. 2016). If the claimant cannot 17 perform her past relevant work, the ALJ proceeds to a fifth and final step to 18 determine whether there is any other work, in light of the claimant’s RFC, age, 19 education, and work experience, that the claimant can perform and that exists 20 in “significant numbers” in either the national or regional economies. See 21 Tackett v. Apfel, 180 F.3d 1094, 1100-01 (9th Cir. 1999). If the claimant can 22 do other work, she is not disabled; but if the claimant cannot do other work 23 and meets the duration requirement, the claimant is disabled. See id. at 1099. 24 The claimant generally bears the burden at steps one through four to 25 show she is disabled or she meets the requirements to proceed to the next step, 26 and bears the ultimate burden to show she is disabled. See, e.g., Ford, 950 27 F.3d at 1148; Molina, 674 F.3d at 1110. However, at Step Five, the ALJ has a 28 “limited” burden of production to identify representative jobs that the claimant 1 can perform and that exist in “significant” numbers in the economy. See Hill v. 2 Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); Tackett, 180 F.3d at 1100. 3 III. 4 DISCUSSION 5 The parties present two disputed issues (Jt. Stip. at 4): 6 Issue No. 1: Whether the ALJ properly provided a light-work restriction 7 in the RFC instead of a sedentary restriction, and whether that would preclude 8 the representative occupations identified by the VE; and 9 Issue No. 2: Whether the ALJ erred by finding Plaintiff can communicate 10 in English, and whether such a finding would further diminish the 11 representative occupations identified by the VE. 12 A. RFC & VE Testimony 13 In Issue No. 1, Plaintiff argues the ALJ found Plaintiff could perform a 14 range of light work, but due to the 10-pound lifting limitation, sit/stand option, 15 and simple-repetitive-task limitation “a more reasonable way of assessing [the 16 RFC] would be to equate these restrictions . . . to a sedentary[-]work restriction 17 rather than a modified light[-]work restriction.” Jt. Stip. at 4-6. 18 1. Applicable Law 19 A district court must uphold an RFC assessment when the ALJ has 20 applied the proper legal standard and substantial evidence in the record as a 21 whole supports the decision. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 22 2005). In making an RFC determination, the ALJ may consider those 23 limitations for which there is support in the record and need not consider 24 properly rejected evidence or subjective complaints. Id. The Court must 25 consider the ALJ’s decision in the context of “the entire record as a whole,” 26 and if the “‘evidence is susceptible to more than one rational interpretation,’ 27 the ALJ’s decision should be upheld.” Ryan v. Comm’r Soc. Sec., 528 F.3d 28 1194, 1198 (9th Cir. 2008) (citation omitted). 1 The Commissioner bears the burden of “show[ing] that the claimant can 2 perform some other work that exists in ‘significant numbers’ in the national 3 economy, taking into consideration the claimant’s [RFC], age, education, and 4 work experience.” Tackett, 180 F.3d at 1100 (citation omitted). There is no 5 bright-line rule for what constitutes a significant number of jobs. Beltran v. 6 Astrue, 700 F.3d 386, 389 (9th Cir. 2012). The Commissioner’s burden can be 7 met: “(a) by the testimony of a VE, or (b) by reference to the Medical- 8 Vocational Guidelines [‘the Grids’] . . ..” Tackett, 180 F.3d at 1101. 9 An ALJ may take administrative notice of any reliable job information, 10 including information provided by a VE. Johnson v. Shalala, 60 F.3d 1428, 11 1435 (9th Cir. 1995). “A VE’s recognized expertise provides the necessary 12 foundation for his or her testimony” and “no additional foundation is 13 required.” Buck v. Berryhill, 869 F.3d 1040, 1051 (9th Cir. 2017) (quoting 14 Bayliss, 427 F.3d at 1218). “Given its inherent reliability, a qualified [VE]’s 15 testimony as to the number of jobs existing in the national economy that a 16 claimant can perform is ordinarily sufficient by itself to support an ALJ’s step- 17 five finding.” Ford, 950 F.3d at 1160; see also Buck, 869 F.3d at 1051. 18 2. Analysis 19 Here, the ALJ found Plaintiff had an RFC of light work, “except” for 20 limitations below the regulatory definition of that level of work. AR 34. Later 21 in the decision, when the ALJ considered whether the Medical-Vocational 22 rules directed a finding of “disabled,” she again acknowledged that Plaintiff’s 23 “ability to perform all or substantially all of the requirements of [light] work 24 has been impeded by additional limitations.” AR 39. Thus, the ALJ fashioned 25 an RFC that fell between the definitions of light work and sedentary work.3 26 27 3 “Sedentary work” is: “lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. 28 1 Because an “RFC is not the least an individual can do despite . . . her 2 limitations or restrictions, but the most,” the ALJ did not err in designating 3 Plaintiff’s RFC as a reduced range of light work, as opposed to a heightened 4 range of sedentary work. See Michele M. v. Saul, 2020 WL 1450442, at *6 5 (S.D. Cal. Mar. 25, 2020) (quoting SSR 96-8P, 1996 WL 374184, at *1 (July 2, 6 1996)); 20 C.F.R. § 416.945(a). Ultimately, however, it matters not how 7 Plaintiff’s range of work was styled. For the purposes of this Court’s review, 8 the issue is whether the RFC and non-disability determination are supported 9 by substantial evidence. Bayliss, 427 F.3d at 1217. 10 The ALJ’s RFC and non-disability determinations are supported by 11 substantial evidence. The ALJ asked the VE questions based on hypothetical 12 individuals with Plaintiff’s vocational factors, age, education, and limitations. 13 AR 72-77. The VE testified that 38,000 small-products assembler positions, 14 28,000 photocopy machine operator positions, and 55,000 mail clerk positions 15 would be available. AR 76. Counsel further restricted the hypotheticals down 16 to matching Plaintiff’s RFC, including the 10-pound lifting restriction that 17 Plaintiff argues here is representative of “more sedentary work,” and the VE 18 testified the same representative occupations would be available, but reduced 19 by 75% total.4 AR 74-79. Relying on this testimony, the ALJ found there were 20 21 Although a sedentary job is defined as one which involves sitting, a certain amount of 22 walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are 23 met.” See 20 C.F.R. § 416.967(a); see also Marvin C. v. Berryhill, 2019 WL 1615239, 24 at *3 (W.D. Wash. Apr. 16, 2019). 25 4 The transcript states the VE stated there were 65,000 mail clerk positions in response to counsel’s hypotheticals, whereas she said there were 55,000 in response to 26 the ALJ’s hypotheticals. AR 76, 79. It is unclear whether this is a reporting error or a 27 discrepancy in the VE’s testimony. Regardless, the ALJ used the smaller number of 55,000, more favorable to Plaintiff, in reaching the Step-Five determination. AR 40. 28 1 jobs in significant numbers that Plaintiff could perform: 9,500 small products 2 assembler jobs (75% reduction of 38,000); 7,000 photocopy machine operator 3 jobs (75% reduction of 28,000); and 13,750 mail clerk/sorter jobs (75% 4 reduction of 55,000), for a total of 30,250 jobs. AR 40. That testimony is 5 substantial evidence supporting the ALJ’s determination that Plaintiff’s RFC 6 did not preclude her ability to work, and it meets the Commissioner’s burden. 7 See Lewis v. Berryhill, 708 F. App’x 919, 920 (9th Cir. 2018) (10,000 office 8 helper jobs in California a “significant” number of jobs claimant could 9 perform); Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 527-29 (9th Cir. 10 2014) (finding 25,000 jobs nationally is a significant number); Ford, 950 F.3d 11 at 1159-60 (VE testimony is inherently reliable and ordinarily sufficient “by 12 itself” to support Step Five, and need only clear the “low substantial evidence 13 bar”); Osenbrock v. Apfel, 240 F.3d 1157, 1162-63 (9th Cir. 2001). 14 At best, Plaintiff presents an alternate interpretation of the jobs available 15 based on her qualification of the RFC, which is insufficient to undermine the 16 VE’s testimony. See Shaibi v. Berryhill, 883 F.3d 1102, 1108 (9th Cir. 2017) 17 (“Where evidence is susceptible to more than one rational interpretation, it is 18 the ALJ's conclusion that must be upheld.” (internal quotation marks and 19 citation omitted)); Molina, 674 F.3d at 1111; see also, e.g., Aragon v. Colvin, 20 2016 WL 1257785, at *5 (C.D. Cal. Mar. 30, 2016) (collecting cases uniformly 21 rejecting lay interpretation and analysis of job numbers). Reversal is not 22 warranted on this ground. 23 B. Language Ability 24 In Issue No. 2, Plaintiff contends that the decision “mistakenly” states 25 that Plaintiff can communicate in English. Jt. Stip. at 6. She claims that, 26 although she may understand a few words, “she clearly could not and cannot 27 facilitate in the English language.” Id. She alleges that of the three 28 representative occupations identified by the VE, “Spanish[-]only options would 1 further erode the position of Photocopy Machine operator and Mail Sorter as 2 English is primarily used in these fields.” Id. 3 1. Applicable Law 4 Although a claimant’s inability to communicate in English limits the jobs 5 he or she can perform, it is not a physical or mental disability of the type social 6 security disability benefits are intended to address. “A claimant is not per se 7 disabled if he or she is illiterate.” Pinto v. Massanari, 249 F.3d 840, 847 (9th 8 Cir. 2001). Nonetheless, an ALJ must not ignore language problems since they 9 are critical to an individual’s ability to function in the workplace. Id. at 846. 10 However, “[w]hile illiteracy or the inability to communicate in English may 11 significantly limit an individual’s vocational scope, the primary work functions 12 in the bulk of unskilled work relate to working with things (rather than with 13 data or people) and in these work functions at the unskilled level, literacy or 14 ability to communicate in English has the least significance.” 20 C.F.R. Pt. 404, 15 Subpt. P, App. 2, § 201.00(I). 16 2. Analysis 17 The Commissioner argues Plaintiff “waived any argument as to literacy 18 because she failed to raise this issue before the agency despite being represented 19 by counsel throughout the administrative proceedings.” Jt. Stip. 7. In reply, 20 counsel argues that Plaintiff “could not have raised the issue of her inability to 21 speak English any sooner than she had as she was unaware this would be at 22 issue until receiving the . . . Unfavorable Decision.” Jt. Stip. at 10. Neither 23 position accurately captures the underlying proceedings or waiver issue. 24 Counsel, the same attorney who represented Plaintiff during the 25 application process, administrative proceedings, and here, raised this issue in 26 Plaintiff’s pre-hearing/pre-decision letter brief before the ALJ (AR 323-24), and 27 then in his brief before the Appeals Council (AR 5, 217-18), albeit in cursory 28 fashion. However, at the optimal time during the hearing, when the VE could 1 have been asked about the effect Plaintiff’s alleged language deficiency would 2 have had on the statistical number of jobs she could perform and that answer 3 could have been assessed by the ALJ, counsel posed no restrictions based on 4 Plaintiff’s language ability. AR77-79; See Meanel v. Apfel, 172 F.3d 1111, 1115 5 (9th Cir. 1999) (“[t]he ALJ, rather than this Court, [is] in the optimal position 6 to resolve the conflict between [a claimant’s] new evidence and the statistical 7 evidence provided by the VE”). Accordingly, to the extent Plaintiff claims the 8 ALJ erred solely as to the hypothetical questions posed to the VE, such a 9 challenge is waived here. See Howard v. Astrue, 330 F. App’x 128, 130 (9th 10 Cir. 2009) (claimant waived argument that ALJ’s hypotheticals were 11 inadequate where claimant’s attorney had opportunity to pose hypotheticals but 12 never mentioned allegedly erroneously omitted limitation); Meanel, 172 F.3d at 13 1115 (claimant’s argument – that there were insufficient jobs in local area for a 14 particular position – not properly preserved for appeal). 15 Further, even in the briefing here—outside of the blanket statement that 16 two of the jobs would be further eroded by “Spanish[-]only options” (Jt. Stip. at 17 6) and that although she previously worked it was “in this community as Santa 18 Barbara has a large Latino community and the individuals she worked with and 19 worked for predominately spoke Spanish” (Jt. Stip. at 10)—Plaintiff makes no 20 showing by how much the representative occupations would be eliminated or 21 eroded. Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006) (claimant waived 22 issues not properly raised before the district court); Allison v. Astrue, 425 F. 23 App’x 636, 640 (9th Cir. 2011) (any error in finding claimant could perform a 24 job harmless if claimant could perform other jobs); Meanel, 172 F.3d at 1114-15 25 (court need not address a claimant’s arguments regarding both jobs identified 26 by the ALJ where the ALJ properly relied on one of the jobs). Nonetheless, 27 despite Plaintiff’s failure to properly raise the issue, the Court concludes that the 28 ALJ’s finding is supported by the record. 1 In the decision, the ALJ discussed Plaintiff’s testimony, including her 2 statements that she has trouble understanding English and following 3 instructions. AR 35. The ALJ noted Plaintiff admitted she filled out documents 4 in English, such as the work history report. AR 35. Further, the ALJ discussed 5 how Plaintiff responded appropriately and participated in the psychiatric 6 consultative examination, and hospital records showed she was able to 7 communicate in English. AR 35 (citing AR 853), 38 (citing 801-04). 8 These findings are supported by the record. Although Plaintiff prepared 9 her function report in Spanish (AR 282-97) and she appears to have been 10 assisted by a Spanish interpreter at the hearing (AR 48, 73; but see AR 53 11 [when asked about her prior work, she explained “I don’t know how to say it in 12 Spanish”]), substantial supports the ALJ’s finding that Plaintiff could 13 communicate in English (AR 39). For example, her pain questionnaire and 14 work-history report were prepared in English and she signed the latter as the 15 person who completed the form and so confirmed. AR 49-51, 252-54, 257-68. 16 Further, the consultative examiner’s report stated “[t]here was no interpreter 17 required for this examination.” AR 801. Later, the report stated that Plaintiff 18 was “responsive” and that “[Plaintiff]’s speech seemed adequate in English.” 19 AR 802-03. Hospital records also described Plaintiff as a “mostly English- 20 speaking Hispanic woman.” AR 35, 853. 21 Plaintiff’s underlying application materials add further support to the 22 ALJ’s finding. For example, at least one of the disability reports prepared by 23 Plaintiff answered “Yes” to questions such as “Can you speak and understand 24 English”; “Can you read and understand English?”; and “Can you write more 25 than your name in English?” AR 240-41. Moreover, during a “[f]ace-to-face” 26 interview with Plaintiff at a field office, the Agency noted that Plaintiff had no 27 difficulty reading, understanding, talking, answering, or writing, and 28 specifically mentioned Plaintiff was a “[p]olite lady, answered all questions, 1 || walks fine. No difficulties were noted.” AR 250. Finally, in a disability report 2 prepared by counsel on Plaintiff's behalf, he indicated Plaintiff could “speak 3 understand English.” AR 273-74. 4 Thus, viewing the record as a whole, the ALJ’s determination is 5 ||supported by substantial evidence. See, e.g., Mohammad v. Colvin, 595 F. 6 || App’x 696, 697 (9th Cir. 2014) (ALJ’s determination regarding language ability 7 ||supported by substantial evidence because “[claimant] had been observed 8 ||speaking English, and various individuals reported that they had been able to 9 ||communicate with her in English, albeit with some difficulty”); Reddick, 157 10 || F.3d at 720-21. Even if some of the evidence may be susceptible to more than 11 || one interpretation, the Court must uphold the ALJ’s finding. See Molina, 674 12 || F.3d at 1111; Ryan, 528 F.3d at 1198. Reversal is not warranted. 13 IV. 14 ORDER 15 IT THEREFORE IS ORDERED that Judgment be entered affirming 16 decision of the Commissioner and dismissing this action with prejudice. 17 18 || Dated: July 10, 2020 20 ND. EARLY 21 nited States Magistrate Judge 22 23 24 25 26 27 28 13