Hayes v. Commissioner of Social Security ( 2021 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 RANDALL H., 9 Plaintiff, CASE NO. C21-0152-MAT 10 v. 11 ORDER RE: SOCIAL SECURITY COMMISSIONER OF SOCIAL SECURITY, DISABILITY APPEAL 12 Defendant. 13 14 Plaintiff appeals a final decision of the Commissioner of the Social Security Administration 15 (Commissioner) denying Plaintiff’s applications for Disability Insurance Benefits (DIB) and 16 Supplemental Security Income (SSI) after a hearing before an administrative law judge (ALJ). 17 Having considered the ALJ’s decision, the administrative record (AR), and all memoranda of 18 record, this matter is AFFIRMED. 19 FACTS AND PROCEDURAL HISTORY 20 Plaintiff was born on XXXX, 1967.1 Plaintiff has a limited education and previously 21 worked as an automotive detailer, molding utility worker, and molding supervisor. AR 28. Plaintiff 22 filed an application for DIB and an application for SSI on November 28, 2018, alleging disability 23 1 Dates of birth must be redacted to the year. Fed. R. Civ. P. 5.2(a)(2) and LCR 5.2(a)(1). 1 beginning October 1, 2018. AR 15. The applications were denied at the initial level and on 2 reconsideration. On July 28, 2020, the ALJ held a telephonic hearing and took testimony from 3 Plaintiff and a vocational expert (VE). AR 37–71. On September 1, 2020, the ALJ issued a decision 4 finding Plaintiff not disabled. AR 15–30. Plaintiff timely appealed. The Appeals Council denied 5 Plaintiff’s request for review on December 7, 2020 (AR 1–6), making the ALJ’s decision the final 6 decision of the Commissioner. Plaintiff appeals this final decision of the Commissioner to this 7 Court. 8 JURISDICTION 9 The Court has jurisdiction to review the ALJ’s decision pursuant to 42 U.S.C. § 405(g). 10 STANDARD OF REVIEW 11 This Court’s review of the ALJ’s decision is limited to whether the decision is in 12 accordance with the law and the findings are supported by substantial evidence in the record as a 13 whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). “Substantial evidence” means more 14 than a scintilla, but less than a preponderance; it means such relevant evidence as a reasonable 15 mind might accept as adequate to support a conclusion. Magallanes v. Bowen, 881 F.2d 747, 750 16 (9th Cir. 1989). If there is more than one rational interpretation, one of which supports the ALJ’s 17 decision, the Court must uphold the ALJ’s decision. Thomas v. Barnhart, 278 F.3d 947, 954 (9th 18 Cir. 2002). 19 DISCUSSION 20 The Commissioner follows a five-step sequential evaluation process for determining 21 whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). 22 At step one, the ALJ must determine whether the claimant is gainfully employed. The ALJ 23 found Plaintiff had not engaged in substantial gainful activity since the alleged onset date. AR 17. 1 At step two, the ALJ must determine whether a claimant suffers from a severe impairment. 2 The ALJ found Plaintiff has the following severe impairments: spinal impairment(s), bilateral 3 shoulder impairment(s), right elbow impairment(s), right wrist impairment(s) (including carpal 4 tunnel syndrome and/or Dupuytren’s contractures), mood disorder(s), anxiety disorder(s) 5 (including post-traumatic stress disorder), and substance use disorder(s). AR 18. The ALJ also 6 found that the record contained evidence of a non-severe impairment of non-malignant bladder 7 tumor in 2019 and a non-medically determinable respiratory impairment. AR 18. 8 At step three, the ALJ must determine whether a claimant’s impairments meet or equal a 9 listed impairment. The ALJ found that Plaintiff’s impairments did not meet or equal the criteria of 10 a listed impairment. AR 19–20. 11 If a claimant’s impairments do not meet or equal a listing, the Commissioner must assess 12 residual functional capacity (RFC) and determine at step four whether the claimant has 13 demonstrated an inability to perform past relevant work. The ALJ found Plaintiff able to perform 14 light work, as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), with the following limitations: 15 [H]e can reach bilaterally. He can frequently handle and finger with his right (non-dominant) upper extremity. He can occasionally 16 stoop, crawl, and climb ladders, rope, and scaffolding. He can frequently climb ramps and stairs. He can understand, remember, 17 and carry out simple instructions. He can exercise simple workplace judgment and can perform work that is learned on the job in less 18 than thirty days by short demonstration and practice or repetition. He can respond appropriately to supervision and can have 19 occasional superficial interaction with coworkers. He can work in jobs that require only occasional and superficial interaction or 20 contact with the general public. He can deal with occasional changes in the work environment. 21 AR 20–21. With that assessment, the ALJ found Plaintiff unable to perform any past relevant work. 22 AR 28. 23 If a claimant demonstrates an inability to perform past relevant work, or has no past 1 relevant work, the burden shifts to the Commissioner to demonstrate at step five that the claimant 2 retains the capacity to make an adjustment to work that exists in significant levels in the national 3 economy. With the assistance of a VE, the ALJ found Plaintiff capable of performing other jobs, 4 such as work as a garment sorter, laundry sorter, and bagger. AR 28–29. 5 Plaintiff argues that the ALJ’s RFC is erroneous because the hypothetical presented to the 6 VE, on whose opinion the ALJ relied, did not contain all of Plaintiff’s limitations set forth in the 7 ALJ’s decision. Plaintiff requests remand for further administrative proceedings. The 8 Commissioner argues the ALJ’s decision has the support of substantial evidence and should be 9 affirmed. 10 1. VE Hypothetical 11 At step four, the ALJ must identify the claimant’s functional limitations or restrictions and 12 assess her work-related abilities on a function-by-function basis. See 20 C.F.R. § 416.945; SSR 13 96-8p. The RFC is the most a claimant can do considering his limitations or restrictions. See SSR 14 96-8p. At step five, the Commissioner has the burden “to identify specific jobs existing in 15 substantial numbers in the national economy that claimant can perform despite her identified 16 limitations.” Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). Based on the VE’s testimony 17 and the Dictionary of Occupational Titles (DOT), the ALJ concluded that Plaintiff was capable of 18 performing the requirements of representative occupations such as garment sorter, laundry sorter, 19 and bagger. AR 28–29. 20 Plaintiff argues that the ALJ erred by presenting a hypothetical to the VE that included no 21 limitation on handling or fingering, yet the ALJ’s RFC limited Plaintiff to “frequently handle and 22 finger with his right (non-dominant) upper extremity.” Dkt. 21, 7–8. “Hypothetical questions asked 23 of the vocational expert must ‘set out all of the claimant’s impairments.’” See Lewis v. Apfel, 236 1 F.3d 503, 517–18 (9th Cir. 2001) (citation omitted). Here, the ALJ found that “the vocational 2 expert testified the representative occupations could all be performed by someone limited to 3 frequent reaching in all directions.” AR 29. Further, although the ALJ did not include handling 4 and fingering limitations in the hypothetical presented to the VE, the ALJ also found that “the 5 DOT indicates the representative occupations can be performed by someone limited to frequent 6 handling and fingering (or even occasional fingering except for the occupation of bagger).” AR 29 7 (citing DOT 222.687-14 (garment sorter), DOT 361.687-014 (laundry sorter), and DOT 920.687- 8 018 (bagger)). In addition to testimony of a VE, “[a]n ALJ may also use ‘other resources, such as 9 the “Dictionary of Occupational Titles,” and its companion volumes and supplements, published 10 by the Department of Labor.’” Ford v. Saul, 950 F.3d 1141, 1149 (9th Cir. 2020) (quoting 20 11 C.F.R. § 404.1560(b)(2)). Because the ALJ relied on the DOT to determine that the ALJ could 12 perform the representative occupations of garment sorter, laundry sorter, and bagger with his 13 fingering and handling limitations, the ALJ did not err. 14 Even if the ALJ did err in failing to include the handling and fingering limitations in the 15 hypothetical question posed to the VE, this error would be harmless. The Commissioner’s DOT 16 identifies all three jobs as requiring no more than frequent handling and fingering—indeed, both 17 garment sorter and laundry sorter require no more than occasional fingering. See DOT 222.687- 18 14, 361.687-014, 920.687-018. Therefore, the VE’s answer to the ALJ’s hypothetical question 19 would not have been different even if the limitation to “frequent” handling and fingering had been 20 included in the question posed. See McGarrah v. Colvin, 650 Fed Appx. 480, 481 (9th Cir. 2016) 21 (finding harmless error where the ALJ failed to include a limitation to simple tasks in the VE 22 hypothetical yet the identified occupations corresponded to “unskilled work”). Because any error 23 in failing to include the limitation to “frequent” handling and fingering did not “negate the validity 1 of the ALJ’s ultimate conclusion,” any error was harmless. Molina v. Astrue, 674 F.3d 1104, 1115 2 (9th Cir. 2012), superseded by regulation on other grounds. 3 CONCLUSION 4 For the reasons set forth above, this matter is AFFIRMED. 5 DATED this 20th day of December, 2021. 6 A 7 MARY ALICE THEILER 8 United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23