STANLEY A. BOONE, Magistrate Judge.
Plaintiff Claudia Guerrero ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her application for disability benefits pursuant to the Social Security Act. 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, hypertension, alleged back impairment, a history of methicillin-resistant staphylococcus aureus, major depressive disorder, learning disorder, borderline intellectual functioning, and anxiety disorder. 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 protectively filed a Title XVI application for supplemental security income on October 20, 2011. (AR 274.) Plaintiff's application was initially denied on April 19, 2012, and denied upon reconsideration on October 31, 2012. (AR 131-135, 138-142.) Plaintiff requested and received a hearing before Administrative Law Judge Danny Pittman ("the ALJ"). Plaintiff appeared for a hearing on October 29, 2013 which was continued so she could obtain representation. (AR 75-82.) Plaintiff subsequently appeared for a hearing on May 29, 2014. (AR 44-74.) On June 27, 2014, the ALJ found that Plaintiff was not disabled. (AR 23-38.) The Appeals Council denied Plaintiff's request for review on February 19, 2016. (AR 1-3.)
The ALJ made the following findings of fact and conclusions of law.
(AR 31-37.)
To qualify for disability insurance benefits under the Social Security Act, the claimant must show that she 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 a claimant is disabled. 20 C.F.R. § 404.1520;
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 contends that the ALJ erred by failing to include Plaintiff's lack of English literacy in the residual functional capacity assessment. Plaintiff argues that the ALJ did not meet his burden to find that Plaintiff has sufficient ability to read and write to be found literate in English and there is no evidence in the record to support a finding of literacy or illiteracy. Plaintiff contends that the ALJ did not offer any explanation as to why Plaintiff could perform jobs that were not consistent with Plaintiff's illiteracy. Plaintiff also argues that the ALJ erred by failing to include all the moderate limitations opined by Dr. Portnoff in the residual functional capacity assessment.
Defendant responds that substantial evidence supports the residual functional capacity assessment and Plaintiff's challenges to the ALJ's residual functional capacity assessment are meritless. Defendant contends that literacy is not a component of the residual functional assessment, but is an educational factor to be considered. Further, Defendant argues that the ALJ properly relied on the State Agency physicians' translation of Plaintiff's moderate limitations in developing the residual functional capacity. Finally, Defendant argues that the ALJ properly found that Plaintiff was literate and Plaintiff has identified no inconsistencies between the vocational expert's testimony and the Dictionary of Occupational Titles ("DOT").
Plaintiff argues that the ALJ erred in finding that she was literate in English. Defendant contends that Plaintiff bears the burden of establishing illiteracy, however, "[t]he Commissioner has the burden to show that the claimant can perform other work existing in the national economy, `given his residual functional capacity, age, education, and work experience.'"
The Social Security regulations define illiteracy as an inability to read and write. 20 C.F.R. § 416.964(a)(1). The Ninth Circuit has held "only literacy in English is considered, since literacy in other languages has little effect on the number of jobs in the national economy available to the claimant. 20 C.F.R. § 416.964(b)(5). `Illiterate' therefore means illiterate in English."
The ALJ found that Plaintiff's command of English was sufficient for her to testify clearly and coherently in English at the May 29, 2014 hearing. (AR 29.) When the May 29, 2014 hearing commenced, Plaintiff was assisted by a Spanish language interpreter. (AR 46.) After asking Plaintiff a few questions, the following exchange ensued.
(AR 48-49.)
The ALJ also considered that Plaintiff was never held back in school but dropped out in the 11th grade after she turned 18 and was no longer required to attend. (AR 33, 50-51, 70.) The ALJ asked if Plaintiff took special education classes in school. (AR 51.)
(AR 51.) Although Plaintiff argues that it is unclear whether she is able to read English, given the context of the question and answer the ALJ could reasonably conclude by Plaintiff's response that she was able to read and write some English.
In questioning Plaintiff about her ability to follow simple instructions, the ALJ asked if Plaintiff would be able to follow written instructions. (AR 59.) Plaintiff responded "Just read it and then I could get everything." (AR 59.)
The ALJ also considered Plaintiff's educational records showing that she received education services in elementary and high school in the United States. (AR 34.) Plaintiff's school records from May 22, 1984 state that she should use the 2nd basal reader. (AR 351.) Her level of reading achievement was 2.5. (AR 351.) In third grade, Plaintiff's reading score was 2.8 and writing was 1.9. (AR 353.) She passed the test on her second try. (AR 353.) In 1986, Plaintiff's reading score was 2.5. (AR 383.) In 1987, her reading score was 2.4; and in 1988 her reading score was 3.3. (AR 381.) By sixth grade, Plaintiff was reading at a fourth grade level. (AR 383.)
In seventh grade, Plaintiff received Ds in reading, and Bs and an F in bilingual language arts. (AR 367.) In eighth grade, Plaintiff received Cs and Ds in English as a second language, Cs and a D in reading, and a B and C in language arts. (AR 366.) Plaintiff received As and Bs in language lab in high school. (AR 405-407.) In tenth and eleventh grade, Plaintiff received passing grades in English. (AR 376.)
Although Plaintiff was an English as a Second Language student, she attended school into the eleventh grade in the United States and obtained passing grades. While Plaintiff's sister completed paperwork for her and Plaintiff testified that she reads the bible in Spanish, there is substantial evidence in the record to support the ALJ's finding that Plaintiff was literate in English.
Literacy is is a vocational factor to be considered by the ALJ. 20 C.F.R. § 416.964. While Plaintiff argues that the ALJ erred by not including her illiteracy in her residual functional capacity, the proper question is whether the jobs identified by the VE conflict with the DOT.
Although Plaintiff argues that the VE opined that Plaintiff could perform the jobs of assembler, DOT 706.684-042, or film developer, DOT 976.685-014, the ALJ found that Plaintiff was able to work as a commercial cleaner, DOT 381.687-014; hand packer, DOT 920.587-018, and landscape laborer, DOT 408.687-014. (AR 37, 71.) The occupations of commercial cleaner and hand packer require a language level of 1. Dictionary of Occupational Titles 381.687-014 Cleaner, Commercial or Institutional, DICOT 381.687-014, 920.587-018 Packager, Hand, DICOT 920.587-018. A landscape laborer requires a language level of 2. Dictionary of Occupational Title 408.687-014 Laborer, Landscape, DICOT 408.687-014. As the ALJ identified two language level 1 jobs that consist of a substantial number of jobs in the economy, the Court shall only address whether Plaintiff's ability to perform those jobs is consistent with the DOT.
"The DOT lists maximum requirements of occupations as generally performed, not the range of requirements of a particular job as it is performed in specific settings." Policy Interpretation Ruling: Titles II & XVI: Use of Vocational Expert & Vocational Specialist Evidence, & Other Reliable Occupational Info. in Disability Decisions, SSR 00-4P, 2000 WL 1898704, at *3 (S.S.A. Dec. 4, 2000). Level 1 is the lowest language development contemplated by the DOT. 2 Dictionary of Occupational Titles, App. C—Components of the Definition Trailer,
The vocational guidelines themselves identify that a younger individual who is illiterate or unable to communicate in English is not disabled if they can perform their prior unskilled work or have no past relevant work. 20 C.F.R. § Pt. 404, Subpt. P, App. 2 § 201.24. "For individuals who are under age 45, age is a more advantageous factor for making an adjustment to other work. It is usually not a significant factor in limiting such individuals' ability to make an adjustment to other work, including an adjustment to unskilled sedentary work, even when the individuals are unable to communicate in English or are illiterate in English."
The ALJ found that Plaintiff was able to communicate in English (AR 36), and the VE opined that his testimony did not conflict with the DOT (AR 72.) Substantial evidence supports the ALJ's determination that Plaintiff has the ability to work at language level 1 jobs.
Plaintiff argues that the ALJ erred by failing to include the moderate limitations found by Dr. Portnoff in her residual functional capacity. Specifically, Plaintiff contends that the ALJ's decision did not provide reasons to reject Dr. Portnoff's findings that Plaintiff had moderate limitations in her ability to complete a normal workweek or workday without interruptions from a psychiatric condition and her ability to deal with stress encountered in a competitive work environment is moderately limited. Defendants respond that Plaintiff's contention that she is disabled due to her moderate limitations is meritless and that the ALJ properly relied on the opinions of the agency physicians who translated the limitations found by Dr. Portnoff into a residual functional capacity assessment.
"The ALJ is required to consider all of the limitations imposed by the claimant's impairments, even those that are not severe."
The ALJ considered the opinion of Dr. Portnoff. (AR 34.) Dr. Portnoff conducted a comprehensive psychological examination of Plaintiff on March 16, 2012. (AR 499-505.) Dr. Portnoff opined that Plaintiff was not capable of managing her own funds. (AR 504.) She can perform simple and repetitive tasks, but has moderate limitations in her ability to perform detailed and complex tasks due to deficits in concentration, mental flexibility, and memory and also due to depression. (AR 504.) Plaintiff has mild restrictions in her ability to interact with coworkers and the public due to depression and deficits in concentration, memory, and mental speed. (AR 504.) Plaintiff has mild limitations in her ability to work on a consistent basis without special or additional instruction and ability to maintain regular attendance in the workplace due to asociality. (AR 504.) Plaintiff has moderate limitations in her ability to complete a normal workweek or workday without interruptions from a psychiatric condition due to combined cognitive and affective symptoms. (AR 504.) Plaintiff's ability to deal with stress encountered in a competitive work environment is moderately limited due to depression. (AR 504.)
The ALJ gave Dr. Portnoff's findings significant weight because his examination findings supported the limitations opined. (AR 35.) The ALJ found that Dr. Portnoff's diagnoses of depression and learning disorder were consistent with Plaintiff's complaints to her treating doctors and her educational records. (AR 35.) The ALJ also found that no doctor had opined greater limitations. (AR 35.)
The ALJ also gave significant weight to the opinions of the agency physicians, Drs. Rudnick and Morris, because they were consistent with the opinion of Dr. Portnoff and the evidence taken as a whole. (AR 35.) On April 17, 2012, Dr. Rudnick completed a case analysis and residual functional capacity assessment. (AR 88-94.) Dr. Rudnick found that Plaintiff would have some difficulties with detailed/complex instructions, she can understand, remember, follow, and perform repetitive three step instructions and tasks. (AR 91.) Plaintiff's symptoms would affect concentration, persistence, and pace, but Plaintiff can persist and attend and keep an acceptable pace for a normal work schedule. (AR 92.) Plaintiff's symptoms would be compatible with some social difficulties, but Plaintiff can accept supervision, and can successfully engage in superficial work task related interpersonal interactions with coworkers. (AR 92.) Limited public contact was recommended. (AR 92.) Plaintiff did not have adaption limitations. (AR 92.)
Dr. Morris reviewed the case on reconsideration on October 26, 2012. (AR 114-119.) Dr. Morris made the same residual functional capacity findings as Dr. Rudnick. (AR 116-117.)
While Plaintiff argues that the residual functional capacity assessment did not contain the limitations opined by Dr. Portnoff, the residual functional capacity findings need not be identical to the relevant limitations but must be consistent with them.
Based on the foregoing, the Court finds that the ALJ did not err in finding that Plaintiff was literate and properly incorporated the limitations opined by Dr. Portnoff in the residual functional capacity assessment. 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. It is FURTHER ORDERED that judgment be entered in favor of Defendant Commissioner of Social Security and against Plaintiff Claudia Guerrero. The Clerk of the Court is directed to CLOSE this action.
IT IS SO ORDERED.
