MARCO A. HERNANDEZ, District Judge.
Plaintiff Steve Sankhar brings this action seeking judicial review of the Commissioner's final decision to deny disability insurance benefits (DIB) and supplemental security income (SSI). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1383(c)(3)). I affirm the Commissioner's decision.
Plaintiff applied for DIB on July 7, 2010, and for SSI on August 27, 2010, alleging an onset date of September April 30, 2007.
On August 7, 2013, Plaintiff appeared, with counsel, for a hearing before an Administrative Law Judge (ALJ). Tr.40-86. On August 26, 2013, the ALJ found Plaintiff not disabled. Tr. 7-30. The Appeals Council denied review. Tr. 1-5.
Plaintiff alleges disability based on loss of sight in his left eye, back injury, and knee injury. Tr. 294. At the time of the hearing, he was fifty-two years old. Tr. 49. He has completed one year of college and has training in construction and carpentry. Tr. 53. He has past relevant work experience as a maintenance repairer. Tr. 22.
A claimant is disabled if unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment 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), 1382c(3)(a).
Disability claims are evaluated according to a five-step procedure.
In the first step, the Commissioner determines whether a claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled.
In step three, the Commissioner determines whether plaintiff's impairments, singly or in combination, meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity."
In step four, the Commissioner determines whether the claimant, despite any impairment(s), has the residual functional capacity (RFC) to perform "past relevant work." 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can, the claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to the Commissioner. In step five, the Commissioner must establish that the claimant can perform other work.
At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since his alleged onset date. Tr. 12. Next, at steps two and three, the ALJ determined that Plaintiff has severe impairments of degenerative disc disease, osteoarthritis, pancreatitis, and affective disorder, but that the impairments did not meet or equal, either singly or in combination, a listed impairment. Tr. 13-15.
At step four, the ALJ concluded that Plaintiff has the residual functional capacity (RFC) to perform light work except that he can stand and walk for a total of four hours each day with no limitations on sitting; he can only occasionally climb ramps, stairs, ladders, ropes, and scaffolds; he can occasionally balance, stoop, kneel, crouch, and crawl; he is limited to occupations that do not require near or far visual acuity, depth perception, field of vision, or color vision with the left eye; he is limited to understanding and remembering simple instructions and carrying out simple, routine tasks involving only simple work-related decisions. Tr. 15. With this RFC, the ALJ determined that Plaintiff is unable to perform any of his past relevant work. Tr. 22. However, at step five, the ALJ determined that Plaintiff is able to perform jobs that exist in significant numbers in the economy such as laundry worker or cashier. Tr. 23. Thus, the ALJ determined that Plaintiff is not disabled.
A court may set aside the Commissioner's denial of benefits only when the Commissioner's findings are based on legal error or are not supported by substantial evidence in the record as a whole.
Plaintiff alleges that the ALJ made three errors: (1) the VE's testimony upon which the ALJ relied in identifying the jobs that Plaintiff could perform at step five, conflicts with the Dictionary of Occupational Titles (DOT); (2) the ALJ should have found Plaintiff capable of only sedentary work; and (3) the ALJ improperly rejected the opinion of an examining physician.
In her RFC, as well as in the hypotheticals presented to the vocational expert (VE), the ALJ included several left eye restrictions because of Plaintiff's left eye blindness. Specifically, the ALJ found that Plaintiff cannot perform near or far acuity, depth perception, field of vision, or color vision with the left eye. Tr. 15, 77.
Relying on the VE's testimony, the ALJ found, at step five, that Plaintiff could perform the jobs of cashier or laundry worker. Tr. 22-23. According to the DOT, both of these jobs require near acuity vision.
As the Ninth Circuit recently explained, "[w]hen there is an apparent conflict between the vocational expert's testimony and the DOT — for example, expert testimony that a claimant can perform an occupation involving DOT requirements that appear more than the claimant can handle — the ALJ is required to reconcile the inconsistency."
Here, the ALJ did not recognize any conflict between the VE's testimony and the restrictions in the RFC. Thus, the ALJ did not address if any such conflict could be resolved. As a result, Plaintiff argues that the ALJ erred and contends that the case must be remanded.
Defendant argues that the ALJ did not err by failing to reconcile any conflict because there was no conflict. Defendant notes that Plaintiff has near visual acuity limitations only in his left eye, not in his right eye. The VE's testimony does not conflict with the DOT job descriptions, according to Defendant, when the VE gave no testimony that the ability to use one eye would interfere with the near acuity required to perform the identified jobs.
In a December 2014 Order, I addressed a similar issue regarding a limitation on reaching.
The plaintiff in
The Ninth Circuit has not ruled on this issue. However, every other court in this District that has addressed a similar case has concluded that there is no conflict. Chief Judge Aiken recently held that "while some courts have held that a limitation on overhead reaching with one arm conflicts with a DOT job description requiring reaching generally, this District has held that no such conflict exists."
Although the restriction in the instant case concerns Plaintiff's vision and not the use of his upper extremities, the rationale expressed in the cases from this District is consistent with Defendant's argument here: to conclude there is a conflict between the VE's testimony and the DOT would require the Court to read into the DOT's description of laundry worker and cashier a requirement that the claimant have no restrictions in near visual acuity in both eyes. Plaintiff makes no argument as to why a restriction in the vision of one eye should be treated differently than a restriction in the use of one arm. Thus, for the reasons explained in
Plaintiff notes that the ALJ's RFC places him between the sedentary and light categories of exertional ability. The ALJ found he can perform light work. Tr. 15 (citing 20 C.F.R. §§ 404.1567(b), 416.967(b)). But, the ALJ imposed additional restrictions of standing and walking up to a total of four hours per day.
Plaintiff states that because his RFC falls between the sedentary and light exertion levels, he also falls between two Grid rules.
Defendant agrees that Plaintiff's maximum exertional capacity as found by the ALJ falls between sedentary and light levels. Defendant also agrees that if Plaintiff were limited to sedentary work, he would be disabled under the Grids as of his fiftieth birthday. But, Defendant argues, the ALJ fulfilled her obligation to determine Plaintiff's occupational base by consulting the VE. Defendant contends that the VE's testimony constituted substantial evidence supporting that ALJ's conclusion.
The VE testified that due to the standing and walking restrictions of four hours total in an eight-hour day, an individual meeting the criteria of the ALJ's hypothetical would need to work in a facility where there is a stool or a bench. Tr. 77-78. The VE testified that the stool/bench restriction would "drastically" reduce the number of available state and national laundry worker jobs to ten- or twenty-percent of the available jobs without that limitation.
In her decision, the ALJ explained that if a claimant can perform all or substantially all of the exertional demands at a particular level of exertion, the Grids direct a conclusion of either disabled or not disabled. Tr. 22. When the claimant cannot perform substantially all of the exertional demands at a particular level or has nonexertional limitations, the Grids are used as a framework for decisionmaking unless there is a rule that directs a conclusion of disabled without considering the additional exertional or nonexertional limitations.
However, the ALJ explained, Plaintiff's ability to perform all or substantially all of the requirements of light level work was impeded by additional limitations.
Defendant cites a 2000 Ninth Circuit case for the proposition that when a claimant's exertional limitation falls between two Grid rules, the ALJ fulfills his or her obligation to determine the claimant's occupational base by consulting a VE regarding whether a person with the claimant's profile could perform substantial gainful work in the economy.
SSR 83-12, like POMS DI 25025.015, addresses the use of the grids as a framework when exertional capacity falls between two rules. While similar, SSR 83-12 is more detailed and more comprehensive than POMS DI 25025.015. Both set out possible scenarios when a claimant's exertional capacity falls between two rules, including the scenario when the two rules direct different conclusions — one disabled and one not disabled. SSR 83-12 provides that
SSR 83-12, 1983 WL 31253, at **2-3.
POMS DI 25025.015 contains a simpler and shorter version of the same instruction:
POMS DI 25025.015. The POMS addresses only the first two scenarios in Section 2a and 2b of SSR 83-12. Here, given that the full range of "light" work typically involves standing/walking for six hours out of an eight-hour workday, it is not readily apparent that the four-hour stand/walk limitation would "slightly" or "significantly" reduce his capacity for light work. This places Plaintiff in the "middle" category addressed by SSR 83-12, Section 2c. The POMS does not provide guidance to the ALJ in that situation. Under Section 2c of SSR 83-12, as well as
Additionally, the VE's testimony supports a conclusion that the four-hour stand/walk limitation does not "significantly" reduce Plaintiff's capacity for light work. While the VE testified that the limitation impacted the number of laundry worker and cashier jobs available, Plaintiff makes no argument that the 1,000 Oregon and 75,000 to 80,000 national laundry worker jobs, or the 3,400 Oregon and 300,000 national cashier jobs are not "jobs that exist in significant numbers" in the economy.
The POMS does not direct the ALJ to request that the VE make a determination as to the "slightly" or "significantly" reduced capacity for the higher level of exertion when the claimant's exertional capacity falls between two rules with different conclusions. Rather, it instructs the ALJ to make that determination. Here, because the RFC placed Plaintiff "in the middle," the ALJ properly consulted the VE. The VE's testimony provided the ALJ with job numbers indicating that even with the four-hour stand/walk limitation, Plaintiff did not have a significantly reduced capacity for the light level of exertion. The ALJ did not err in applying POMS DI 25025.015.
On August 19, 2011, Dr. Brendan Antiochos examined Plaintiff. Tr. 343-45. In his three-page report, he recited Plaintiff's subjective complaints and noted his past medial history, medications, social history, employment history, and family history. Tr. 343-44. He performed a physical examination in which he made the following relevant remarks regarding Plaintiff's musculoskeletal system: range of motion of the back was significantly limited with Plaintiff able to flex his hips no more than 45 degrees toward the floor without provoking severe lumbar pain; no tenderness to palpation over the spine; range of motion at the bilateral hips provoked pain in the lower back; and straight leg testing was positive for pain. Tr. 344. Plaintiff also reported diminished sensation to light touch over the lateral portion of the right foot.
In describing his impression, Dr. Antiochos wrote that Plaintiff suffered from chronic low back pain, with the December 2007 MRI demonstrating "multilevel degenerative disk disease with disk herniation at several levels causing impingement on nerve roots." Tr. 345. Dr. Antiochos noted that Plaintiff had "extensive osteophytosis in the lumbar spine consistent with osteoarthritis or degenerative disease of the lumbar spine."
Dr. Antiochos wrote that Plaintiff's pain was provoked by the "sort of physical activities which were part of his previous employment."
In her decision, the ALJ discussed Dr. Antiochos's report. Tr. 21. She gave Dr. Antiochos's report "great weight" because it was consistent with the record.
Plaintiff argues that the ALJ erred because even though the ALJ gave "great weight" to Dr. Antiochos's opinion, the ALJ nonetheless found that Plaintiff could lift up to twenty pounds occasionally and ten pounds frequently. Plaintiff suggests that the ALJ's lifting limits are inconsistent with Dr. Antiochos's opinion.
I disagree. As Defendant notes, Dr. Antiochos did not assign any functional limitations or express a general opinion on Plaintiff's ability to work. Tr. 345. While opining that Plaintiff''s condition was an "obstacle" to the performance of his previous work in maintenance, Dr. Antiochos gave no opinion about Plaintiff's ability to perform a less physically demanding job. As such, there is no conflict between the RFC and Dr. Antiochos's opinion and the ALJ did not err.
The Commissioner's decision is affirmed.
IT IS SO ORDERED.
