Opinion
For Charles Bernard Grimes, Plaintiff: Lawrence D Rohlfing, LEAD ATTORNEY, Law Offices of Lawrence D Rohlfing, Santa Fe Springs, CA.
For Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant: Annabelle J Yang, LEAD ATTORNEY, Social Security Administration, Office of the General Counsel Region IX, San Francisco, CA; Assistant U.S. Attorney LA-CV, LEAD ATTORNEY, Office of U.S. Attorney, Civil Division, Los Angeles, CA; Assistant U.S. Attorney LA-SSA, LEAD ATTORNEY, Office of the General Counsel for Social Security Adm., San Francisco, CA.
MEMORANDUM AND ORDER
Hon. Kenly Kiya Kato, United States Magistrate Judge.
Plaintiff Charles B. Grimes seeks review of the final decision of the Commissioner of the Social Security Administration (" Commissioner" or " Agency") denying his applications for Title II disability insurance benefits (" DIB") and Title XVI supplemental security income (" SSI"). The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c). For the reasons stated below, the Commissioner's decision is AFFIRMED.
I .
PROCEDURAL BACKGROUND
On September 3, 2010, Plaintiff filed applications for DIB and SSI. Administrative Record (" AR") at 146, 150. The applications were denied initially on November 30, 2010, and upon reconsideration on February 24, 2011. Id. at 87, 97.
On March 15, 2011, Plaintiff requested a hearing before an Administrative Law Judge (" ALJ"). Id. at 102. On March 28, 2012, a hearing was held before ALJ Judson Scott at which Plaintiff was represented by counsel. Id. at 36. On December 7, 2012, the ALJ issued a decision denying Plaintiff's applications. Id. at 9.
On January 30, 2013, Plaintiff asked the Agency's Appeals Council to review the ALJ's decision. Id. at 8. On April 15, 2014, the Appeals Council denied the request for review. Id. at 1.
On July 9, 2014, Plaintiff filed this action. ECF No. 1. This matter is before the Court on the parties' Joint Stipulation, which the Court has taken under submission without oral argument. ECF No. 14.
II .
STANDARD FOR EVALUATING DISABILITY
In order to qualify for DIB or SSI, a claimant must demonstrate a medically determinable physical or mental impairment that (1) prevents the claimant from engaging in substantial gainful activity and (2) is expected to result in death or to last for a continuous period of at least twelve months. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998). The impairment must render the claimant incapable of performing the work the claimant previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
To decide if a claimant is disabled, and therefore entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. § § 404.1520, 416.920. The steps are:
(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.
(2) Is the claimant's impairment severe? If not, the claimant is found not disabled. If so, proceed to step three.
(3) Does the claimant's impairment meet or equal one of the specific impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (" Listing of Impairments")? If so, the claimant is found disabled. If not, proceed to step four.
" Between steps three and four, the ALJ must, as an intermediate step, assess the claimant's [residual functional capacity]." Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222-23 (9th Cir. 2009) (citing 20 C.F.R. § 416.920(e)). In determining a claimant's residual functional capacity, an ALJ must consider all relevant evidence in the record. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). This involves, inter alia, evaluating the credibility of a claimant's testimony regarding capabilities. Chaudhry v. Astrue, 688 F.3d 661, 670 (9th Cir. 2012).
(4) Is the claimant capable of performing work the claimant has done in the past? If so, the claimant is found not disabled. If not, proceed to step five.
(5) Is the claimant able to do any other work? If not, the claimant is found disabled. If so, the claimant is found not disabled.
Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001); 20 C.F.R. § § 404.1520(b)-(g)(1), 416.920(b)-(g)(1).
The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five. Bustamante, 262 F.3d at 953-54. Additionally, the ALJ has an affirmative duty to assist the claimant in developing the record at every step of the inquiry. Id. at 954. If, at step four, the claimant meets the burden of establishing an inability to perform past work, the Commissioner must show that the claimant can perform some other work that exists in " significant numbers" in the national economy, taking into account the claimant's residual functional capacity (" RFC"), age, education, and work experience. Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § § 404.1520(g)(1), 416.920(g)(1).
III .
THE ALJ'S DECISION
At step one, the ALJ found Plaintiff " has not engaged in substantial gainful activity since March 1, 2008, the alleged onset date." AR at 14 (citations omitted). At step two, the ALJ found Plaintiff " has the following severe impairments: chronic kidney disease, stage II; chronic lower back degenerative disc disease and pain with resolved sciatica; bilateral knee osteoarthritis and degenerative joint disease; recurrent right shoulder pain with likely mild rotator cuff tendonitis; obesity; history of asthma; and a learning disorder." Id. at 14-15 (citations omitted). At step three, the ALJ found Plaintiff " does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1." Id. at 15 (citations omitted).
The ALJ found Plaintiff " has the residual functional capacity to perform medium work . . . with the following deviations: the claimant [is] able to sit on an unrestricted basis with normal breaks and to stand or walk for 6/8 [ i.e., six out of eight hours], but in increments of up to one hour in each position; he can occasionally stoop or climb stairs or ramps; manipulative capabilities with the right hand are occasional reaching or pushing-pulling, and frequent handling, but unrestricted fingering or feelings; left hand is unrestricted; foot controls are frequent for right foot/leg and occasional for left foot/leg; no concentrated exposure to dust/gasses/fumes or work at unprotected heights; he can have occasional exposure to extreme heat or cold, or to humidity or wetness; mental: SRT 1-4; frequent contact with others and able to withstand ordinary workplace stress and remain on task with such work." Id. at 16.
At step four, the ALJ found Plaintiff " is capable of performing past relevant work as a photocopy machine operator; and as a clerk, general." Id. at 21. At step five, the ALJ found Plaintiff can perform other jobs that exist in significant numbers in the national economy, including as a furniture rental consultant and as an usher. Id. at 21-22.
IV .
DISCUSSION
The sole disputed issue is " [w]hether the ALJ properly found the ability to perform past relevant work." ECF No. 14 at 4.
A. Background
1. General Information
Plaintiff was born on July 2, 1955, and his alleged disability onset date is March 1, 2008. AR at 163, 180. Plaintiff completed the eleventh grade. Id. at 164. Plaintiff was 52 years old at the time of the alleged onset date, and 56 years old at the time of the hearing before the ALJ. In his initial application for benefits, Plaintiff alleged disability based upon right knee problems, high blood pressure, " kidney issues, back problems, sciatica nerve problems, [and] spot on my lungs." Id. at 163 (numbering and paragraph breaks omitted).
2. Plaintiff's Statements About Past Relevant Work
Plaintiff worked as a key operator at a law firm from October 1987 until June 2007, when he was laid off. Id. at 163-64. Plaintiff stated that, as a key operator, he worked in the mail room, duplicated legal documents, and performed various office tasks. Id. at 165. Plaintiff stated he walked eight hours per day, stood two hours per day, sat two hours per day, stooped two hours per day, crouched one hour per day, handled large objects two hours per day, and reached one hour per day. Id. Plaintiff stated he " lifted files and boxes, carried only about 1 foot, on a daily basis." Id. Plaintiff stated the heaviest weight he lifted was 50 pounds; he frequently lifted 10 pounds; and he supervised one other person in the job, but did not hire or fire employees." Id.
3. Vocational Expert's Statements
A vocational expert (" VE") answered a vocational interrogatory after reviewing Plaintiff's vocational background. Id. at 221. The VE used two jobs from the Dictionary of Occupational Titles (" DOT") to describe Plaintiff's past job as a " key operator": photocopying-machine operator (DOT § 207.685-014) and general clerk (DOT § 209.562-010). Id. The VE stated Plaintiff performed his past job at " medium strength level, " noting Plaintiff lifted up to 50 pounds as part of the job. Id. The VE further stated Plaintiff performed his past job at a " supervisor" level. Id. Upon considering Plaintiff's RFC and " the manner he performed" his past relevant work, the VE stated Plaintiff could perform his past relevant work as actually performed. Id. at 222.
The VE further stated that a person with Plaintiff's age, education level, language abilities, and RFC would be able to perform other work, including as a furniture rental consultant and as an usher. Id.
4. Relevant Findings by the ALJ
At step four, the ALJ found Plaintiff capable of performing his past relevant work as actually performed. Id. at 21.
The ALJ then made " alternative findings for step five." Id. The ALJ first analyzed whether Plaintiff was disabled according to the Agency's Medical-Vocational Rules (also known as the " grids"). Id. The ALJ found Plaintiff is currently of advanced age ( i.e., at least age 55), has " a limited education, " and " is able to communicate in English." Id. The ALJ declined to make a finding as to whether Plaintiff " has transferable job skills" because, regardless of the finding, Plaintiff would not be disabled under the grid rules for those with the RFC " to perform the full range of medium work." Id. at 22.
For a detailed explanation of the role of the grids in evaluating a claim of disability, see Lounsburry v. Barnhart, 468 F.3d 1111, 1114-16 (9th Cir. 2006).
The ALJ also found, " considering the claimant's age, education, work experience, and residual functional capacity, there are other jobs that exist in significant numbers in the national economy that the claimant also can perform." Id. (citations omitted). Specifically, the ALJ found Plaintiff could perform " representative occupations such as furniture rental consultant" or usher. Id. at 22 (citations omitted).
B. Relevant Law
At step four, " the claimant has the burden to prove that he cannot perform his prior relevant work either as actually performed or as generally performed in the national economy." Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1166 (9th Cir. 2008) (citation and internal quotation marks omitted). If an ALJ errs at step four, the error is considered harmless if the ALJ made a valid alternative determination of nondisability at step five. Tommasetti v. Astrue, 533 F.3d 1035, 1042 (9th Cir. 2008); accord Price v. Astrue, 473 F.App'x 566, 569 (9th Cir. 2012); Cadena v. Astrue, 365 F.App'x 777, 780 (9th Cir. 2010). Thus, if the ALJ made a valid nondisability determination at step five, the Court need not consider whether the ALJ erred at step four. Price, 473 F.App'x at 569 (assuming arguendo the ALJ erred at step four, but affirming ALJ's decision because ALJ made a valid nondisability determination at step five); see also Tommasetti, 533 F.3d at 1038 (stating courts " will not reverse an ALJ's decision for harmless error, which exists when it is clear from the record that the ALJ's error was inconsequential to the ultimate nondisability determination") (citations and internal quotation marks omitted).
C. Application
A valid nondisability determination at step five would render Plaintiff's argument that the ALJ erred at step four " inconsequential to the ultimate nondisability determination, " and thus render the error harmless. Tommasetti, 533 F.3d at 1042. Thus, the Court first addresses whether the ALJ made a valid nondisability determination at step five.
At step five, the ALJ found " there are other jobs that exist in significant numbers in the national economy that" Plaintiff can perform, including representative occupations such as furniture rental consultant and usher. AR at 21-22. Plaintiff does not argue he is incapable of performing the jobs the ALJ listed at step five. Rather, Plaintiff argues Grid Rule 202.02 requires " a directed finding of" disability in this case. See ECF No. 14 at 9-10; see also 20 C.F.R. part 404, subpart P, Appendix 2, Rule 202.02.
Contrary to Plaintiff's argument, Grid Rule 202.02 does not apply in this case, much less direct a finding of disability. Grid Rule 202.02 dictates a finding of disability for a claimant of advanced age with limited education, who is skilled or semi-skilled but whose skills are not transferable, and whose RFC is limited to light work. Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988); accord Galvez v. Colvin, Case No. 2:13-971-PLA, 2013 WL 6044352, at *5 (C.D. Cal. 2013). Here, the ALJ found Plaintiff has the RFC " to perform medium work, " not light work, thus rendering Grid Rule 202.02 inapplicable. AR at 16 (emphasis added). Therefore, Grid Rule 202.02 does not direct a finding of disability in this case.
Plaintiff does not contest the ALJ's RFC assessment.
Plaintiff cites Cooper v. Sullivan, 880 F.2d 1152 (9th Cir. 1989), more than once to support his argument that Grid Rule 202.02 directs a finding of disability. ECF No. 14 at 9, 18-19. However, Plaintiff does not clearly explain how the case is supportive, and the Court is unable to discern how the case is even relevant. Cooper does not mention Grid Rule 202.02, and merely stands for the proposition that, where a claimant suffers from both exertional and non-exertional impairments, the Agency may not rely solely upon the grids to deny a claim of disability. Cooper, 880 F.2d at 1155-57; see also Lounsburry v. Barnhart, 468 F.3d 1111, 1115-16 & n.3 (9th Cir. 2006) (discussing Cooper). Here, in finding Plaintiff is not disabled, the ALJ did not rely solely upon the grids. On the contrary, the ALJ also relied upon the expert opinion of a VE -- whose opinion that Plaintiff can perform the jobs of furniture rental consultant and usher Plaintiff does not contest. Thus, Cooper appears to be wholly inapposite to this case.
Because Plaintiff has not (1) contested the ALJ's RFC assessment; (2) contested he would be able to perform the jobs of furniture rental consultant or usher; or (3) demonstrated Grid Rule 202.02 directs a finding of disability in this case, Plaintiff has not shown the ALJ erred at step five. Thus, even assuming the ALJ erred at step four, the ALJ's valid nondisability determination at step five renders the error harmless. See Tommasetti, 533 F.3d at 1042; Price, 473 F.App'x at 569. Accordingly, the ALJ's decision is affirmed.
V .
CONCLUSION
IT IS THEREFORE ORDERED that judgment be entered AFFIRMING the decision of the Commissioner.
JUDGMENT
Pursuant to sentence four of 42 U.S.C. § 405(g), IT IS ADJUDGED that the decision of the Commissioner of the Social Security Administration is AFFIRMED.