SANDRA M. SNYDER, Magistrate Judge.
Plaintiff Ernesto Jesus Robles, by his attorneys, Law Offices of Lawrence D. Rohlfing, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits pursuant to Title II and for supplemental security income ("SSI") pursuant to Title XVI of the Social Security Act (42 U.S.C. § 301 et seq.) (the "Act"). The matter is before the Court on the parties' cross-briefs, which were submitted, without oral argument, to the Honorable Sandra M. Snyder, U.S. Magistrate Judge.
The sole issue presented is whether the Administrative Law Judge ("ALJ") erred in determining Plaintiff's residual functional capacity since Plaintiff's severe impairments preclude his performing the jobs on which the ALJ relied in concluding that work existed that Plaintiff could perform. Following a review of the complete record and applicable law, the Court finds the decision of the Administrative Law Judge ("ALJ") to be supported by substantial evidence in the record as a whole and based on proper legal standards.
On August 17, 2010, Plaintiff filed separate applications for disability insurance benefits and supplemental security income. In both applications, Plaintiff alleged disability beginning January 30, 2009. The Commissioner initially denied the claims on December 9, 2010, and upon reconsideration, on February 2, 2011. On April 15, 2011, Plaintiff filed a timely request for a hearing.
Plaintiff appeared and testified at a hearing on December 6, 2012. Jose Chaparro, an impartial vocational expert, also appeared and testified.
On December 21, 2012, Administrative Law Judge Sharon L. Madsen denied Plaintiff's application. The Appeals Council denied review on January 10, 2014. On February 28, 2014, Plaintiff filed a complaint seeking this Court's review.
Plaintiff (born February 14, 1965) worked various jobs requiring heavy labor until he was laid off in July 2008. Despite applying for less physically demanding positions, he had been unable to find work.
Plaintiff's physical complaints included lower back pain and weakness, carpal tunnel syndrome, numbness in his arms, inability to lift heavy objects over his head, hernia, abdominal cramping, and rectal bleeding. Due to financial limitations, however, Plaintiff had not received medical treatment until January 30, 2009, when he was treated at Community Medical Center after experiencing back pain, sweating, and blood in his stool. The clinic physician diagnosed fever, stool incontinence due to an anal fistula, and ventral hernia before sending Plaintiff to the emergency room for an evaluation of his stool incontinence and to rule out infection. Notes on a February 6, 2006 follow-up examination indicated a diagnosis of irritable bowel syndrome and that Plaintiff was morbidly obese (69 inches tall; 304 pounds).
Performing a consultative examination, neurologist Michael Froehler, M.D., diagnosed lumbago and possible carpal tunnel syndrome. His examination reported high blood pressure. Dr. Froehler opined that Plaintiff had "no physical impairments or exertional limitations."
On May 26, 2009, consulting physician Sadda V. Reddy, M.D., completed a physical residual functional capacity assessment. Dr. Reddy opined that Plaintiff could lift 50 pounds occasionally and 25 pounds frequently; could sit, stand, or walk for about six hours each in an eight-hour workday; and had unlimited ability to push and pull. Plaintiff could frequently climb ramps and stairs, balance, kneel, and crawl, and occasionally climb ladders, ropes, or scaffolds, stoop, and crouch.
Dr. Reddy summarized:
On October 22, 2010, consulting internist Rustom Damania, M.D., evaluated Plaintiff. Plaintiff complaints included obesity, right wrist pain, chronic low back pain, weakness, hypertension, pressure in the suprapubic area, and alcohol dependency. Dr. Damania opined that Plaintiff should be able to lift 50 pounds occasionally and 25 pounds frequently. He could stand, sit, and walk without limitation, and required no assistive device. He had no postural or manipulative limitations, nor visual or communicative impairments.
Following Dr. Damania's evaluation, Dr. Reddy opined that Plaintiff's limitations were not severe.
Following a fall, Plaintiff's cervical spine was x-rayed at Elm Community Health Center. Radiologist James Cusator, M.D., observed no fracture but noted moderate degenerative changes in Plaintiff's mid- to low-level spine.
On June 18, 2012, consulting internist Steven Stoltz examined Plaintiff, diagnosing obesity, bilateral wrist pain, possible obstructive sleep apnea, and hypertension. Dr. Stoltz opined that Plaintiff had no limitations attributable to medical disorders.
Dr. Stoltz completed a medical source statement of ability to do work-related activities (physical). He opined that Plaintiff could occasionally lift and carry 20 pounds and continuously lift and carry ten pounds; sit, stand, or walk for two hours at a time without interruption; sit eight hours in an eight-hour workday; stand six hours in an eight-hour workday; walk four hours in an eight hour work day; continuously reach, handle, finger, feel, push, pull, operate foot controls, climb, balance, stoop, kneel, crouch, and crawl. Plaintiff had no environmental limitations.
On June 1, 2012, Plaintiff was treated at the Community Medical Center's clinic. He reported recent dizziness and light-headedness. Although he had been diagnosed with high blood pressure in 2010, he had not taken the prescribed medication. He reported alcohol use and having experienced black-outs, tremor, waking up drinking, but no seizures. The clinic physician diagnosed asymptomatic, but uncontrolled, high blood pressure; wrist pain, which was likely carpal tunnel syndrome; and alcohol abuse. An EMG study revealed mild-to-moderate neuropathy across both wrists suggestive of mild-to-moderate carpal tunnel syndrome with no coexisting evidence of myopathy or radiculopathy. On August 31, 2012, Loveneet Singh, M.D., referred Plaintiff for carpal tunnel release surgery.
For the first hypothetical question, the ALJ directed Chaparro to assume a hypothetical person of the same age, education, and work background as Plaintiff, who could lift and carry 50 pounds occasionally, 25 pounds frequently, and could sit, stand, or walk six hours of an eight-hour work day. Chaparro opined that the hypothetical person could perform the jobs of machine feeder and irrigation system installer as described but not as Plaintiff actually performed them. Conversely, the hypothetical person could work as a commercial or institutional cleaner as Plaintiff actually performed the job but not as the DOT described the job.
For the second hypothetical question, the ALJ directed Chaparro to assume a hypothetical person of the same age, education, and work background as Plaintiff, who could lift and carry twenty pounds occasionally, ten pounds frequently, and could sit, stand, or walk six hours of an eight-hour work day, with occasional forceful gripping and grasping. Chaparro opined the hypothetical person could not perform any of Plaintiff's prior jobs. The hypothetical person could work as a fast foods worker (DOT No. 311.472-010, light, unskilled, SVP 2, 221,600 jobs nationally, 23,000 jobs in California); cashier 2 (DOT No. 211.462-010, light, unskilled, SVP 2, 1.7 million jobs nationally, 172,000 jobs in California); or housekeeping cleaner (DOT No. 323.687-014, light, unskilled, SVP 2, 221,600 jobs nationally, 23,000 jobs in California).
For the third hypothetical question, the ALJ directed Chaparro to assume a hypothetical person of the same age, education, and work background as Plaintiff, who could lift and carry 10 pounds occasionally, 10 pounds frequently, and could sit, stand, or walk two hours of an eight-hour work day, with occasional forceful gripping and grasping. Chaparro opined that Plaintiff could perform the full range of unskilled sedentary jobs, such as addresser (DOT No. 209.587-010, sedentary, unskilled, SVP 2, 12,400 jobs nationally, 2400 jobs in California); microfilming document preparer ( DOT No. 249.587-018, sedentary, unskilled, SVP 2, 21,800 jobs nationally, 2400 jobs in California); or any of the 14 DOT titles in the class of jobs including inspectors, testers, sorters, samplers, and weighers. All fourteen job titles could be described as bench testing or bench assembling (SVP 2), and as a group totaled 8300 jobs nationally and 900-950 jobs in California.
For the fourth hypothetical question, the ALJ directed Chaparro to assume a hypothetical person of the same age, education, and work background as Plaintiff, who could lift and carry 15 pounds occasionally, 5 pounds frequently, and could sit, stand, or walk two hours of an eight-hour work day, with less than occasional gripping, grasping, fingering, and feeling. According to Chaparro, the fourth hypothetical person could not perform any of Plaintiff's prior work nor any other work.
For the fifth hypothetical question, Plaintiff's attorney asked Mr. Chaparro to assume a hypothetical person of the same age, education, and work background as Plaintiff, who could lift and carry 50 pounds occasionally, 25 pounds frequently, and could sit, stand, or walk six hours of an eight-hour work day, but would require four additional unscheduled 30-minute breaks in each workday. Chaparro opined that the fifth hypothetical person could not perform any of Plaintiff's prior work nor any other work.
To qualify for benefits, a claimant must establish that he or she is unable to engage in substantial gainful activity because of a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 1382c (a)(3)(A). A claimant must demonstrate a physical or mental impairment of such severity that he or she is not only unable to do his or her previous work, but cannot, considering age, education, and work experience, engage in any other substantial gainful work existing in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9
To encourage uniformity in decision making, the Commissioner has promulgated regulations prescribing a five-step sequential process for evaluating an alleged disability. 20 C.F.R. §§ 404.1520 (a)-(f); 416.920 (a)-(f). The process requires consideration of the following questions:
The ALJ found that Plaintiff had not engaged in substantial gainful activity since the alleged onset date of January 30, 2009. His severe impairments were carpal tunnel syndrome, cervical degenerative disc disease, and obesity. The ALJ specifically found Plaintiff's hypertension not to be severe. None of these impairments or in any combination met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appx. 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926). Plaintiff was able to lift and carry 20 pounds occasionally and ten pounds frequently, and to sit, stand, and/or walk six to eight hours in an eight-hour day, but was limited to occasional forceful gripping and grasping. Although Plaintiff was unable to perform any past relevant work, jobs that Plaintiff could perform existed in significant numbers in the national economy. Accordingly, the ALJ concluded that Plaintiff was not disabled.
Congress has provided a limited scope of judicial review of the Commissioner's decision to deny benefits under the Act. In reviewing findings of fact with respect to such determinations, a court must determine whether substantial evidence supports the Commissioner's decision. 42 U.S.C. § 405(g). Substantial evidence means "more than a mere scintilla" (Richardson v. Perales, 402 U.S. 389, 402 (1971)), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9
Plaintiff contends that because the positions identified as those that could be performed by the second hypothetical individual required constant or frequent handling, and because the ALJ found that Plaintiff was limited to occasional forceful gripping and grasping, the agency decision must be reversed. The Commissioner argues that Plaintiff's limitation to occasional forceful gripping and grasping is not tantamount to a limitation on handling or on gripping and grasping in general. In light of prevailing precedent, the Court agrees with the Commissioner.
To conclude that a claimant has the residual functional capacity to perform any other work at step five of the analysis, the ALJ must identify jobs existing in significant numbers in the national economy that the claimant can perform. Johnson v. Shalala, 60 F.3d 1428, 1432 (9
An ALJ may not rely on a vocational expert's testimony regarding the requirements of an exemplary job without asking the expert whether his testimony conflicts with the DOT and if so, the reasons for the conflict. Massachi v. Astrue, 486 F.3d 1149, 1152-53 (9
The DOT is generally the preferable source of information about how a job is performed. Pinto v. Massanari, 249 F.3d 840, 845 (9
Plaintiff contends that the three examples of light work that the vocational expert opined Plaintiff could perform, fast foods worker (DOT No. 311.472-010), cashier 2 (DOT No. 211.462-010), and housekeeping cleaner (DOT No. 323.687-014), all require constant or frequent handling. See DICOT 209.587-010, 1991WL671797; DICOT 311.472-010, 1991 WL 672682; DICOT 323.687-014, 1991WL672783. But in arguing that a conflict exists, Plaintiff misstates the ALJ's limitation to "occasional forceful gripping and grasping" as simply "occasional gripping and grasping," and equates "occasional forceful gripping and grasping" with the need for frequent handling in the three exemplary positions.
Plaintiff's argument relies on the definition of handling set forth in SSR 85-15 at *7 (emphasis added): "seizing, holding, grasping, turning or otherwise working primarily with the whole hand or hands," SSR 85-15 at *7, as well as that set forth in the Revised Handbook for Analyzing Jobs, which describes handling as "seizing, holding, grasping, turning, or otherwise working with hand or hands."
Plaintiff does not refer to definitions of forceful gripping and grasping in the DOT, likely because the DOT does not include this restriction for any of the three exemplary jobs. See DICOT 209.587-010, 1991WL671797; DICOT 311.472-010, 1991 WL 672682; DICOT 323.687-014, 1991WL672783. If the DOT does not equate handling to forceful gripping and grasping, no contradiction existed to require the ALJ to ask the vocational expert about the apparent conflict. See Bauslaugh v. Astrue, 2010 WL 1875800 at *5 (C.D. Cal. May 11, 2010) (No. ED CV 09-1853-MLG) (concluding that claimant restricted from forceful gripping and grasping failed to show conflict with the DOT since vocational expert identified jobs that did not specifically require forceful gripping or grasping).
Federal courts in the Ninth Circuit and elsewhere have generally declined to equate handling with forceful gripping and grasping.
In Equihua, 2011 WL 321993 at *5, the court held that conflating a job requirement of frequent handling with an RFC restriction on forceful gripping, grasping, and twisting was without merit. This Court agrees.
The Court finds that the ALJ applied appropriate legal standards and that substantial evidence supported the ALJ's determination that Plaintiff was not disabled. Accordingly, the Court DENIES Plaintiff's appeal from the administrative decision of the Commissioner of Social Security. The Clerk of Court is DIRECTED to enter judgment in favor of the Commissioner and against Plaintiff.
IT IS SO ORDERED.
