STANLEY A. BOONE, Magistrate Judge.
Plaintiff Edward Nieblas Duarte ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for supplemental security income pursuant to the Social Security Act. On August 29, 2016, Plaintiff filed a brief in support of remand. On September 28, 2016, in response to Plaintiff's opening brief in support of remand, Defendant filed a motion for summary judgment. On October 20, 2016, Plaintiff filed a reply. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to Magistrate Judge Stanley A. Boone.
Plaintiff suffers from diabetes mellitus, peripheral neuropathy, cerebrovascular disease-anoxic residual right sided weakness, lumbar disc displacement without myelopathy, arthritis, morbid obesity, and chronic fatigue syndrome. For the reasons set forth below, Plaintiff's Social Security appeal shall be denied and Defendant's motion for summary judgment shall be granted.
Plaintiff applied for supplemental security income on June 29, 2012, alleging disability beginning May 15, 2012. (AR 178-188.) Plaintiff's application was initially denied on September 11, 2012, and denied upon reconsideration on March 13, 2013. (AR 105-08, 116-120.) Plaintiff requested and received a hearing before Administrative Law Judge Cynthia Floyd ("the ALJ"). Plaintiff appeared for a hearing on June 12, 2014. (AR 22-68.) On August 4, 2014, the ALJ found that Plaintiff was not disabled.
Plaintiff testified at the June 12, 2014 hearing and was represented by counsel.
Vocational Expert ("VE") Jose Chapparo also testified at the hearing. (AR 56-67.) The first hypothetical that the ALJ posed to the VE was for an individual with the same vocational profile as Plaintiff who would be limited to the medium exertional level in that he or she could only lift and carry up to 50 pounds occasionally and 25 pounds frequently, frequently climb ramps and stairs, but only occasionally climb ladders, ropes or scaffolds, and frequently balance, kneel, crouch, crawl, and stoop. This individual also must avoid workplace hazards such as unprotected heights, uneven or slippery terrain, fast moving machinery, and concentrated exposure to respiratory irritants such as odors, gases, dust, and poor ventilation. (AR 59.) This individual could be a poultry eviscerator. (AR 59.) This individual could also do Plaintiff's other two jobs, yard worker and commercial or institutional cleaner, only as Plaintiff performed them. (AR 59.) This individual could also be a cook helper, dining room attendant, and hospital food service worker. (AR 59-60.)
The second hypothetical that the ALJ posed to the VE was for an individual who would be limited to a light exertional level in that the individual could lift and carry up to 20 pounds occasionally and up to 10 pounds frequently, stand and walk up to six hours and sit up to 6 hours, along with the other restrictions of the first hypothetical. (AR 60.) The VE testified that this individual could be a poultry eviscerator and do Plaintiff's other two jobs as he performed them. (AR 60-61.) This individual could also work as a fast food worker, cashier II, and cafe attendant. (AR 61.)
The third hypothetical that the ALJ posed to the VE was for an individual with the same residual functional capacity ("RFC") as the second hypothetical, except this individual would be limited to a sedentary exertional level in that the individual could only lift up to 10 pounds occasionally, stand or walk for approximately two hours, and sit for approximately 6 hours. (AR 61.) The individual could not perform any of Plaintiff's past work. (AR 61.) However, the individual could do sedentary unskilled work such as a microfilming document preparer, stuffer, and telephone quotation clerk. (AR 61-62.)
The fourth hypothetical that the ALJ posed to the VE was for an individual as described in the third hypothetical, except that the person would use an assistive device for ambulation, such as a walker or a cane. (AR 62.) The individual could not perform any of Plaintiff's past work. (AR 62-63.) However, this individual could work as a microfilming document preparer, stuffer, and telephone quotation clerk. (AR 63.)
Plaintiff's attorney then asked the VE whether the individual in the ALJ's first and second hypotheticals could perform the jobs that the ALJ had identified for those hypotheticals if the individual needed an assisted device for standing and walking. (AR 63.) The VE replied that the individual could not do any of those jobs. (AR 63.) Specifically, the VE stated that, assuming that the individual does not have the use of both hands all the time when using the assisted device, the individual would not be able to perform those jobs that he had identified. (AR 63-64.)
The ALJ then inquired whether there would be any other jobs that the individual could perform at the light level if the person required an assistive device, and the VE stated that he had misspoke and that the individual could do cashier II jobs where the individual sits pretty much all day. (AR 64.) The VE also identified ticket seller and paper pattern folder as jobs that the individual could perform. (AR 65.) The VE testified that his answers are consistent with the DOT, except for the cashier II jobs, which there would be about a 50% reduction in the numbers to account for positions where the individual could sit almost all day. (AR 64-67.) The VE testified that "most light jobs could not be done with an assisted device, but these happen to allow sitting." (AR 66.) The VE testified that the ticket seller and paper pattern folder jobs are basically sitting jobs. (AR 67.)
The ALJ made the following findings of fact and conclusions of law:
(AR 10-18.)
To qualify for supplemental security benefits, a person must show that he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The Social Security Regulations set out a five step sequential evaluation process to be used in determining if someone is disabled. 20 C.F.R. § 416.920(b). The five steps in the sequential evaluation in assessing whether the claimant is disabled are:
20 C.F.R. § 416.920(b);
Congress has provided that an individual may obtain judicial review of any final decision of the Commissioner of Social Security regarding entitlement to benefits. 42 U.S.C. § 405(g). In reviewing findings of fact in respect to the denial of benefits, this court "reviews the Commissioner's final decision for substantial evidence, and the Commissioner's decision will be disturbed only if it is not supported by substantial evidence or is based on legal error."
"[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence."
Plaintiff presents two issues in this appeal of the denial of his application for supplemental security income. First, Plaintiff argues that the ALJ erred at step three of the sequential evaluation, because Plaintiff meets or equals Listings 1.02A, 1.04C, 11.04, and/or 11.14.
Plaintiff argues that he meets or equals Listings 1.02A, 1.04C, 11.04B, and/or 11.14 because he cannot ambulate effectively. Plaintiff contends that the ALJ's finding in the RFC that Plaintiff requires the use of a cane or walker to ambulate establishes that Plaintiff does not have the ability to ambulate effectively, and therefore meets the Listings. Plaintiff also argues that the ALJ's step three findings are insufficient because they are "boilerplate" providing no analysis with regard to the findings and failing to discuss or consider the implication of Plaintiff's use of a cane or walker. Defendant counters that Plaintiff has, at most, only articulated an inability to ambulate, and has failed to articulate how he meets the other requirements for Listings 1.02A, 1.04C, 11.04B, and/or 11.14. In his reply brief, Plaintiff did not present any additional arguments on this issue.
The Listings set forth by the Commissioner "define impairments that would prevent an adult, regardless of his age, education, or work experience, from performing any gainful activity, not just `substantial gainful activity.'"
In order for an impairment to meet a Listing, all of the specific findings included in each Listing must be met.
As an initial matter, Plaintiff argues that the ALJ erred by merely stating that she considered the Listings at step three rather than providing any analysis. In her discussion for the third step of the sequential analysis, the ALJ stated:
(AR 13.)
In
Subsequently, in
The Ninth Circuit has also held that "[a]n ALJ is not required to discuss the combined effects of a claimant's impairments or compare them to any listing in an equivalency determination, unless the claimant presents evidence in an effort to establish equivalence."
Here, although the ALJ did not discuss the medical evidence in detail at step three before determining Plaintiff did not meet the requirements of Listings 1.02A, 1.04, 11.04, and 11.14, she gave an evaluation of the medical record between steps three and four in support of the RFC determination. (AR 13-17.)
Plaintiff argues that the ALJ erred by not finding that he meets or equals Listing 1.02A. Listing 1.02 is major dysfunction of a joint(s) due to any cause. An individual meets paragraph "A" of Listing 1.02 when he or she has:
Listing 1.02A, 20 C.F.R. § Pt. 404, Subpt. P, App. 1.
Plaintiff does not argue or point to any evidence of a gross anatomical deformity and chronic joint pain and stiffness. Plaintiff argues that he has the inability to ambulate effectively, which is defined as:
Listing 1.00B2b(1), 20 C.F.R. § Pt. 404, Subpt. P, App. 1.
Listing 1.00B2b(2), 20 C.F.R. § Pt. 404, Subpt. P, App. 1.
While it is arguable that Plaintiff does not have the ability to ambulate effectively, Plaintiff does not explain how he meets the other requirements for Listing 1.02A. Plaintiff does not identify any evidence that the ALJ failed to consider or improperly rejected that would establish that Claimant meets or equals the impairments listed in Listing 1.02A other than an inability to ambulate effectively. Plaintiff only makes a general argument for all of the challenged Listings that the underlying medical evidence demonstrates that he suffers from significant gait dysfunction related to his cerebrovascular accident ("CVA").
Plaintiff has not established that he had a major dysfunction of a joint characterized by a gross anatomical deformity and chronic joint pain involving a weight-bearing joint to meet Listing 1.02A. Plaintiff also has not shown that he has conditions that are equal to Listing 1.02A. The Court notes that the ALJ found that Plaintiff's "physical examinations further showed that he had good lower extremity strength" and "[h]e had full ranges of motion of all his extremities with no bone or joint tenderness." (AR 15.) During examinations on July 12, 2012, September 7, 2012, September 21, 2012, November 27, 2012, December 3, 2012, December 5, 2012, January 3, 2013, and March 24, 2014, Plaintiff had a full range of motion in all extremities and no bone or joint tenderness. (AR 323, 362, 364, 367, 369, 372, 374, 393.)
Therefore, the Court finds that substantial evidence supports the ALJ's determination that Plaintiff's impairments do not meet or equal Listing 1.02A. Accordingly, the Court finds that the ALJ did not err in finding that the medical evidence failed to establish that Plaintiff's impairments, alone or in combination, met or equaled Listing 1.02A.
Plaintiff argues that the ALJ erred in finding that he did not meet or equal Listing 1.04C. Listing 1.04 requires an individual to show a disorder of the spine such as "herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture [ ], resulting in a compromise of a nerve root (including the cauda equina) or the spinal cord." Paragraph "C" of Listing 1.04 also requires an individual to have "[l]umbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and resulting in an inability to ambulate effectively, as defined in 1.00B2b."
Plaintiff does not show how he meets or equals Listing 1.04C other than, arguably, an inability to ambulate effectively. As discussed above, Plaintiff only argues that the underlying medical evidence demonstrates that he suffers from significant gait dysfunction related to his CVA. The ALJ determined at step two that Plaintiff has lumbar disc displacement without myelopathy. (AR 12.) Plaintiff does not challenge this finding. Plaintiff does not show how he has the required lumbar spinal stenosis resulting in pseudoclaudication, let alone spinal stenosis resulting in pseudoclaudication established by appropriate medically acceptable imaging. Plaintiff also has not presented any evidence that he has an equally severe condition to equal Listing 1.04C.
When Plaintiff went to the emergency room in June 2012, Plaintiff's spine was unremarkable during a physical examination, a medical provider noted no musculoskeletal issues, and there was a notation of no back pain in Plaintiff's final report. (AR 260, 263, 267.) In fact, the final report noted that Plaintiff had normal range of motion, normal strength, no tenderness, and no deformity for the musculoskeletal system. (AR 267-68.)
The only positive objective findings for Plaintiff's back from Plaintiff's treating doctor are: (1) October 11, 2011, December 12, 2011 and February 23, 2012 notations that Plaintiff had limited range of motion of the lower spine with forward flexion; (2) a notation in the February 23, 2012 report that Plaintiff used a cane; (3) and January 3, 2013 and March 18, 2013 findings that Plaintiff had lower back pain. (AR 341, 344, 350, 353, 362, 431.)
Plaintiff did physical therapy in August and September 2012 and again from March 2014 through May 2014. (AR 15.) During the time he attended his physical therapy sessions in 2012, Plaintiff had a full range of motion in his knees and nearly full range of motion in his hips. (381, 383.) When Plaintiff was discharged from physical therapy in September 2012, his therapist noted that he had made good progress toward his goals, had increased strength in his lower extremities, had a little more energy, and was independent with his home exercise program. (AR 384.) When Plaintiff was discharged from physical therapy in 2014, he had 9/10 pain in his right leg, 8/10 pain in his back, normal range of motion in his extremities, 5/5 strength in his upper extremities and lower left extremity, and a "4+/5" in his lower right extremity. (AR 434.) Although Plaintiff had minimal improvement in the level of pain in his lower back, he felt stronger on his legs and in his core muscle group, which allowed him to participate more with walking activities. (AR 434.)
Therefore, the Court finds that substantial evidence supports the ALJ's determination that Plaintiff's impairments do not meet or equal Listings 1.04C. Accordingly, the Court finds that the ALJ did not err in finding that the medical evidence failed to establish that Plaintiff's impairments, alone or in combination, met or equaled Listing 1.04C.
Listing 11.04B is a vascular insult to the brain, characterized by "[d]isorganization of motor function in two extremities (see 11.00D1), resulting in an extreme limitation (see 11.00D2) in the ability to stand up from a seated position, balance while standing or walking, or use the upper extremities, persisting for at least 3 consecutive months after the insult."
Plaintiff does not show how he meets Listing 11.04B other than, arguably, an inability to ambulate effectively. Plaintiff has failed to show that he has a central nervous system vascular accident required to meet Listing 11.04B. Plaintiff states in his opening brief that the underlying medical evidence demonstrates that he suffers from significant gait dysfunction related to his CVA.
However, the ALJ found that Plaintiff's claims of a cerebrovascular accident were not supported by the negative MRI and MRA of the head. (AR 15.) Plaintiff does not challenge the ALJ's finding regarding cerebrovascular accident.
Therefore, the Court finds that substantial evidence supports the ALJ's determination that Plaintiff's impairments do not meet or equal Listings 11.04B. Accordingly, the Court finds that the ALJ did not err in finding that the medical evidence failed to establish that Plaintiff's impairments, alone or in combination, met or equaled Listing 11.04B.
Based on Plaintiff's opening brief, it appears that he argues that he meets Listing 11.14A. Listing 11.14 is peripheral neuropathy, characterized by A or B:
Disorganization of motor function is defined as "interference, due to your neurological disorder, with movement of two extremities; i.e., the lower extremities, or upper extremities...By two extremities we mean both lower extremities, or both upper extremities, or one upper extremity and one lower extremity." 20 C.F.R. § Pt. 404, Subpt. P, App. 1, Listing 11.00D1.
Here, Plaintiff has not shown that he meets all of the requirements for Listing 11.14A. The ALJ found that Plaintiff had the severe impairment of peripheral neuropathy. However, a claimant must also have significant and persistent disorganization of motor function in two extremities to meet Listing 11.14A. Plaintiff does not point to any evidence, and the record does not contain any evidence, that Plaintiff has significant and persistent disorganization of motor function in two extremities. Plaintiff only alleges pain and difficulty using his right leg. Plaintiff does not allege any disorganization of motor function in another extremity. Therefore, the Court finds that Plaintiff has failed to show that he meets Listing 11.14A. The Court finds that Plaintiff has also failed to show that he equals the severity of the conditions in Listing 11.14A.
Therefore, the Court finds that substantial evidence supports the ALJ's determination that Plaintiff's impairments do not meet or equal Listings 11.14. Accordingly, the Court finds that the ALJ did not err in finding that the medical evidence failed to establish that Plaintiff's impairments, alone or in combination, met or equaled Listing 11.14.
Plaintiff argues that the VE's testimony implies that Plaintiff would not be able to perform light jobs while standing or walking since at least one of his hands would be using a cane or walker. Therefore, Plaintiff argues that he actually only could do jobs where he is seated, which is a sedentary job, and not light. Defendant contends that the regulations contemplate that a job may be considered light work even if it does not involve much walking. See 20 C.F.R. § 416.967(a);
While the burden is on the claimant to prove that they are disabled at steps one through four, at step five the burden shifts to the Commissioner to show that there are a significant number of jobs in the national community that the claimant can perform.
Plaintiff argues that a disabled finding was mandated by the grids if Plaintiff was limited to sedentary work, given his age, education, and work experience. On the date the application was filed, Plaintiff was 51 years old and the ALJ found that he was closely approaching advanced age. (AR 27.) Plaintiff's vocational factors include that he is an individual closely approaching advanced age with a limited education and no past relevant work experience. A claimant in Plaintiff's position who is limited to sedentary work is deemed disabled according to the grids. 20 C.F.R. Part 404, Subpart P, Appendix 2, § 201.09. Therefore, this is a dispositive issue.
However, Plaintiff's argument is flawed because Plaintiff was not limited to sedentary work. Sedentary work is defined as work which "involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools." 20 C.F.R. § 416.967(a). Light work, in contrast, is defined as work which "involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighting up to 10 pounds." 20 C.F.R. § 416.967(b). The ALJ determined that Plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently, stand walk up to 6 hours, and sit up to 6 hours with the use of an assistive device such as a cane or walker for ambulation. (AR 13.) Accordingly, Plaintiff was theoretically capable of performing some subset of light work, as opposed to being limited entirely to sedentary work.
To the extent that Plaintiff's argument is that the ALJ should have found that the upper category, light work, was so reduced that it was essentially equivalent to the lower category, sedentary work, this argument fails. Defendant argues that the grids did not account for all of Plaintiff's limitations because he required the use of an assistive device. Here, Plaintiff suffered from both exertional and nonexertional limitations, so the ALJ had to determine whether the grids mandate a finding of disabled based on Plaintiff's exertional limitations.
To the extent that Plaintiff's argument is that the ALJ erred by finding that Plaintiff could perform light work because he had to use an assistive device such as a cane or walker for ambulation, Plaintiff's argument fails. The light RFC takes into account not only Plaintiff's ability to stand and walk, but also Plaintiff's abilities to lift objects. Further, Plaintiff is able to meet the exertional requirements of light work for standing and walking, because he is able to stand and walk for six hours, even though he has to use a cane or walker. The fact that he uses a cane or walker may erode some of the jobs in the light exertional work, but as discussed above, that just meant that the grids were not determinative and that further analysis was necessary.
Therefore, it was proper for the ALJ to rely on the testimony of the VE before determining whether Plaintiff was disabled.
Accordingly, IT IS HEREBY ORDERED that Plaintiff's appeal from the decision of the Commissioner of Social Security is DENIED and Defendant's motion for summary judgment is GRANTED. The Clerk of the Court is directed to CLOSE this action and enter judgment in favor of Defendant Commissioner of Social Security.
IT IS SO ORDERED.
