Opinion
CV 20-00211-TUC-RCC (LAB)
06-24-2021
Kelly Monroe “Stu” Ogden, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Leslie A. Bowman United States Magistrate Judge
The plaintiff, Kelly Monroe “Stu” Ogden, filed this action for review of the final decision of the Commissioner for Social Security pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). (Doc. 1, p. 1)
The case has been referred to the United States Magistrate Judge pursuant to the Rules of Practice of this court.
The Magistrate Judge recommends that the District Court, after its independent review, affirm the final decision of the Commissioner. The ALJ's alleged failure to find “changed circumstances” in the medical record, was harmless. The ALJ's alleged failure to properly credit a supportive medical opinion was harmless. The ALJ properly discounted the claimant's subjective testimony of disability. The ALJ did not violate the claimant's due process rights by failing to allow him to cross-examine the vocational expert at the hearing.
PROCEDURAL HISTORY
On August 14, 2018, Ogden constructively filed an application for supplemental security income pursuant to Title XVI of the Social Security Act. (Doc. 20-3, p. 14); (Doc. 20-7, p. 1) He alleged disability beginning on August 26, 2017, due to “neurocognitive, ” anxiety, depression, left leg pain, and memory impairment. (Doc. 20-3, p. 14); (Doc. 20-7, p. 4) Presumably this disability onset date was chosen because it is the day after his prior application for benefits was denied by Administrative Law Judge (ALJ) Laura Speck Havens. (Doc. 20-4, p. 16)
Ogden's application was denied initially and later upon reconsideration. (Doc. 20-3, p. 14) He requested review and appeared with counsel at a hearing before ALJ Peter Baum on December 11, 2019. (Doc. 20-3, pp. 36-38) In his decision, dated December 20, 2019, the ALJ found Ogden was not disabled because, considering his age, education, work experience, and residual functional capacity, the application of Medical Vocational Rule 202.17 resulted in a finding of “not disabled.”
Ogden requested review, but on March 20, 2020, the Appeals Council denied review making the decision of the ALJ the final decision of the Commissioner. (Doc. 20-3, p. 2) Ogden subsequently filed this action seeking review of that final decision. (Doc. 1)
Work History and Medical History
At the hearing before ALJ Baum, Ogden explained that he was 46 years old and attended school until the seventh grade. (Doc. 20-3, p. 42) He worked as a dishwasher in restaurants for more than 25 years. (Doc. 20-3, p. 51) When his wife left him, he became depressed and stopped working. (Doc. 20-8, p. 37) He became homeless and suffered a stroke in May of 2014. (Doc. 20-3, pp. 23, 46-48); (Doc. 20-8, p. 37) He reports continued “weakness on the left side of his body, numbness and tingling, and pain.” (Doc. 20-8, p. 38) “He becomes easily confused, . . . he has trouble concentrating, and he has memory problems.” Id.
Ogden currently lives with friends and receives food stamps. (Doc. 20-3, pp. 43, 45) His friend Margie helps him with paperwork because his writing is not legible. (Doc. 20-3, p. 47) He uses a power wheelchair and a walker to get around. (Doc. 20-3, pp. 44, 48) He drinks beer but not every day, only when his friends offer it to him. (Doc 20-3, p. 44)
At the conclusion of the hearing, ALJ Baum decided not to take testimony from a vocational expert. (Doc. 20-3, pp. 52-53) Ogden's counsel objected because he wanted the vocational expert to review the residual functional capacity assessment made by the psychological examining consultant, Patricia Falcon, Psy.D., in December of 2018. Id.
CLAIM EVALUATION
Social Security Administration (SSA) regulations require that disability claims be evaluated pursuant to a five-step sequential process. 20 C.F.R. § 416.920. The first step requires a determination of whether the claimant is engaged in substantial gainful activity. 20 C.F.R. § 416.920(a)(4). If so, then the claimant is not disabled, and benefits are denied. Id.
If the claimant is not engaged in substantial gainful activity, the ALJ proceeds to step two, which requires a determination of whether the claimant has a severe impairment or combination of impairments. 20 C.F.R. § 416.920(a)(4). In making a determination at step two, the ALJ uses medical evidence to consider whether the claimant's impairment significantly limits or restricts his or her physical or mental ability to do basic work activities. Id. If the ALJ concludes the impairment is not severe, the claim is denied. Id.
Upon a finding of severity, the ALJ proceeds to step three, which requires a determination of whether the impairment meets or equals one of several listed impairments that the Commissioner acknowledges are so limiting as to preclude substantial gainful activity. 20 C.F.R. § 416.920(a)(4); 20 C.F.R. Pt. 404, Subpt. P, App.1. If the claimant's impairment meets or equals one of the listed impairments, then the claimant is presumed to be disabled, and no further inquiry is necessary. Ramirez v Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993). If the claimant's impairment does not meet or equal a listed impairment, evaluation proceeds to the next step.
The fourth step requires the ALJ to consider whether the claimant has sufficient residual functional capacity (RFC) to perform past relevant work. 20 C.F.R. § 416.920(a)(4). If yes, then the claim is denied. Id. If the claimant cannot perform any past relevant work, then the AL J must move to the fifth step, which requires consideration of the claimant's RFC to perform other substantial gainful work in the national economy in view of the claimant's age, education, and work experience. 20 C.F.R. § 416.920(a)(4). “There are two ways for the [ALJ] to meet the burden of showing that there is other work in ‘ significant numbers' in the national economy that claimant can do: (1) by the testimony of a vocational expert, or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2, ” also known as the “Grids.” Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006).
Residual functional capacity is defined as that which an individual can still do despite his or her limitations. 20 C.F.R. § 416.945.
The Grids categorize jobs according to their exertional requirements such as sedentary work, light work, or medium work. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). The Grids calculate whether or not the claimant is disabled based on the claimant's exertional ability, age, education, and work experience. Id. at 1114-1115. The Grids are a valid basis for denying claims where they accurately describe the claimant's abilities and limitations. Id. If the claimant has only exertional limitations, the claim may be resolved based only on the Grids. Id.
“[T]he [G]rids are inapplicable when a claimant's non-exertional limitations are sufficiently severe so as to significantly limit the range of work permitted by the claimant's exertional limitations.” Hoopai v. Astrue, 499 F.3d 1071, 1075 (9th Cir. 2007). “Non-exertional limitations are limitations that do not directly affect a claimant's strength.” Burkhart v. Bow en, 856 F.2d 1335, 1340 (9th Cir. 1988). Mental limitations, for example, are non-exertional. Id. at 1340-41. If non-exertional limitations prevent the claimant from performing a significant portion of the full range of work in any exertional category, the ALJ must take the testimony of a vocational expert to deny the claim. Id. at 1341.
The ALJ's Findings
At step one of the disability analysis, the ALJ found “[t]he claimant has not engaged in substantial gainful activity since August 14, 2018, the application date (20 CFR 416.971 et seq).” (Doc. 20-3, p. 17)
At step two, the ALJ found “[t]he claimant has the following severe impairments: Cerebral Vascular Accident Residual; Neurocognitive Disorder; Depressive Disorder; Anxiety Disorder (20 CFR 416.920(c)).” Id. At step three, the ALJ found “[t]he claimant 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 (20 CFR 416.920(d), 416.925, and 416.926).” (Doc. 20-3, p. 18)
The ALJ then analyzed Ogden's residual functional capacity (RFC). He found “[t]he claimant has the residual functional capacity to perform light work as defined in 20 CFR 416.967(b) except the claimant can lift and carry up to 20 pounds occasionally and 10 pounds frequently; sit for 6 hours in an 8-hour day; stand/walk 6 hours in an 8-hour day; frequently climb ramps/stairs, stoop, kneel, crouch, balance and crawl; he should never climb ropes or scaffolds; he should occasionally avoid moving machinery and other workplace hazards; he could occasionally work at unprotected heights; he can have occasional interaction with the public, supervisors and co-workers; and he can perform simple, repetitive routine tasks.” (Doc. 20-3, pp. 21-22)
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R § 416.967(b) “Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls.” Id.
At step four, the ALJ found Ogden has no past relevant work. (Doc. 20-3, p. 30) At step five, the ALJ found that Ogden's non-exertional limitations “have little or no effect on the occupational base of unskilled light work.” (Doc. 20-3, p. 31) He then considered Ogden's “age, education, work experience, and residual functional capacity” and found Ogden is not disabled by applying Medical-Vocational Rule 202.17 (20 C.F.R. Part 404, Subpt. P, Appendix 2). (Doc. 20-3, pp. 30-31) This Rule applies to claimants who are limited to light work, are “younger individual[s]” (age 45-49), whose education is “limited or marginal, but not illiterate, ” and whose previous work experience is “unskilled or none.” 20 C.F.R. Pt. 404, Subpt. P, Appendix 2.
STANDARD OF REVIEW
To qualify for disability benefits, the claimant must demonstrate, through medically acceptable clinical or laboratory standards, an inability to engage in substantial gainful activity due to a physical or mental impairment that can be expected to last for a continuous period of at least twelve months. 42 U.S.C. § 1382c(a)(3). “[A]n individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him or whether he would be hired if he applied for work.” 42 U.S.C. § 1382c(a)(3)(B).
The findings of the ALJ are meant to be conclusive. The decision to deny benefits “should be upheld unless it contains legal error or is not supported by substantial evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. It is “more than a mere scintilla but less than a preponderance.” Id.
“Where evidence is susceptible to more than one rational interpretation, the ALJ's decision should be upheld.” Id. “However, a reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Id
“An ALJ is not required to believe every allegation of disabling pain or other non-exertional impairment.” Orn, 495 F.3d at 635 (punctuation modified). “However, to discredit a claimant's testimony when a medical impairment has been established, the ALJ must provide specific, cogent reasons for the disbelief.” Id. “The ALJ must cite the reasons why the claimant's testimony is unpersuasive.” Id. If the ALJ does not find “affirmative evidence” of malingering, “those reasons for rejecting the claimant's testimony must be clear and convincing.” Id.
Discussion: Changed Circumstances
Ogden argues first that the ALJ improperly failed to find “changed circumstances” that overcome the presumption that the Commissioner's prior non-disability finding is still correct.
“The principles of res judicata apply to administrative proceedings.” Diaz v. Astrue, 2010 WL 3432262, at *5 (E.D. Cal. Aug. 31, 2010). “A previous finding that a claimant is not disabled creates a presumption of continuing non-disability.” Id. “To overcome this presumption, the claimant must prove ‘changed circumstances' indicating a greater disability.” Id. (citing Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988)). “For example, a change in age status after the first determination is a changed circumstance sufficient to rebut the presumption of continuing nondisability.” Id. “Changed circumstances also include an increase in the severity of the claimant's impairment, the alleged existence of a new impairment, or a change in the criteria for determining disability.” Id; see also Acquiescence Ruling (AR) 97-4(9). “If changed circumstances exist . . . the prior RFC is still entitled to res judicata.” Id. at *6. “The ALJ must then determine whether new and material evidence exists to warrant a change in the prior RFC.” Id
In this case, Ogden filed a prior disability claim that resulted in an unfavorable decision issued by ALJ Havens in August of 2017. (Doc. 20-4, pp. 5-16) This prior decision is entitled to res judicata deference. Accordingly, Ogden must present “changed circumstances” in the pending disability claim to rebut the presumption of continuing non-disability.
Ogden argues that he has presented evidence of a “changed circumstance.” In his prior claim, Ogden presented evidence of a 2014 MRI that showed an acute cerebrovascular accident. One of the medical experts, however, opined that this pontine stroke would not account for Ogden's abnormal gait and his alleged need for a walker. (Doc. 21, p. 7) In the pending claim, however, he presents evidence of a 2017 MRI that shows evidence of a chronic pontine hemorrhage. This, he maintains, is objective evidence of a physical impairment that could be causing his “balance difficulty, loss of coordination, numbness, and weakness in one half of the body.” (Doc. 21, p. 8) He asserts that “it was error for Judge Baum to find that there were no changed circumstances requiring revisiting Judge Havens' findings.” (Doc. 21, p. 9) The court concludes that the ALJ's error, assuming he made one, was harmless.
The pons and medulla oblongota are . . . parts of the brain stem. Rindfleisch v. Sec'y of Health & Human Servs., 2005 WL 6117472, at *3, n. 16 (Fed. Cl. 2005).
The court assumes without deciding that this MRI qualifies as a possible “changed circumstance” because, while it was apparently presented to ALJ Havens, she did not “rel[y] upon it.” (Doc. 21, p. 8); but see Duffy v. Comm 'r of Soc. Sec. Admin., 2020 WL 1933923, at *3 (D. Ariz. 2020) (“What the ALJ cannot do is reconsider prior findings based strictly on information already presented to the first judge.”) (punctuation modified).
In his decision, ALJ Baum stated as follows:
During the previous period of alleged disability, Administrative Law Judge Laura Speck Havens, found the severe impairment of cerebral vascular accident, neurocognitive disorder, depression and anxiety. Since this prior decision, the claimant has alleged additional impairments of left leg pain and worsening memory problems during the un-adjudicated period under consideration. However, a review of the evidence failed to support the severity of the alleged impairments and I find the claimant has not overcome the Chavez presumption of continuing non-disability.(Doc. 20-3, p. 17) It appears that the ALJ did not find the 2017 MRI to be a changed circumstance. Nevertheless, ALJ Baum did not simply adopt ALJ Havens's disability determination as a res judicata. Instead, he engaged in a detailed examination of the medical record reviewing, among other things, the neurological consultative examination performed by Jerome Rothbaum, M.D., in March of 2017, the physical medicine consultative examination performed by Jeri Hassman, M.D., in November of 2018, the psychological consultative examination performed by Patricia Falcon, Psy.D., in December of 2018, and the state agency consultative reviews performed by John Kurtin, M.D., Randall Garland, Ph.D., Martha Goodrich, M.D., and C. Eblen, M.D. (Doc. 20-3, pp. 27-30) ALJ Baum subsequently concluded that Ogden had the ability to perform light work with certain non-exertional restrictions.
Assuming the ALJ erred by failing to recognize that the 2017 MRI was a changed circumstance, the court finds that this error was harmless. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006) (An ALJ's error was harmless if it was “inconsequential to the ultimate nondisability determination.”). The ALJ did not simply apply a presumption of non-disability and call it a day. He analyzed the medical record and engaged in the five-step sequential analysis which is what the ALJ is supposed to do when he finds a changed circumstance. The ALJ engaged in the same disability analysis that he was required to perform had he decided in the first place that the 2017 MRI was a changed circumstance. The ALJ's error, assuming he made one, was harmless. See, e.g., Diaz v. Astrue, 2010 WL 3432262, at *6 (E.D. Cal. Aug. 31, 2010) (“ALJ Webster did not strictly apply the presumption of continuing non-disability because he continued further with his review and completed the five-step sequential process, ” and therefore his failure to find changed circumstances was harmless error.).
Discussion: The Medical Opinion of Patricia Falcon
Ogden further argues that the ALJ failed to analyze the supportability and consistency of Patricia Falcon's medical opinion before discounting her opinion that Ogden would “require cu[e]ing in a working environment to enhance his recall of procedures and to perform complex tasks.” (Doc. 21, p. 10) (citing 20 C.F.R. s 416.920c(a), (b)) (“The most important factors we consider when we evaluate the persuasiveness of medical opinions and prior administrative medical findings are supportability . . . and consistency . . . .”) Ogden explains that in the past, medical opinions were subject to a hierarchy of deference. Treating source opinions were given deference over the opinions of consulting examiners, which, in turn, were given deference over the opinions of non-examining state agency physicians. The Code of Federal Regulations has since changed that approach in favor of giving the ALJs a more general duty to explain how persuasive each medical opinion is, after considering the opinion's supportability and consistency. (Doc. 21, p. 9) Ogden maintains that this court should adopt the new approach articulated in the CFR. The court assumes that Ogden has identified the proper standard.
On December 13, 2018, Ogden was evaluated by Patricia Falcon, Psy.D., for the state Disability Determination Service. (Doc. 20-8, p. 38) Ogden reported that he had applied for disability due to a stroke. Id. He alleged “neurocognitive issues, anxiety, depression, left leg pain, and memory impairment.” Id. Falcon diagnosed “[m]ajor depressive disorder, moderate recurrent.” (Doc. 20-8, p. 41) Falcon administered a Mini-Mental State Exam and found that Ogden's performance “falls in the impaired range.” (Doc. 20-8, p. 40) His “[m]emory recall was 2/3.” Id. “He required minimum cueing in order to enhance his performance to 3/3.” Id.
Falcon completed a Psychological/Psychiatric Medical Source Statement. (Doc. 20-8, p. 43) She stated, among other things, that “[h]e had mild difficulty trying to recall 2 of 3 words, which would indicate that likely he would need cues within a working environment in order to enhance his recall of procedures.” Id. “In order to do complex tasks, he likely would need cues within the environment and repeated demonstration and practice.” Id.
In his decision, the ALJ considered Falcon's medical opinion in some detail. (Doc. 20-3, p. 28) He stated as follows:
Dr. Falcon opined Mr. Ogden was capable of simple routine tasks with low interpersonal contact and probable need for cu[e]ing. Dr. Falcon's opinion in regard to simple routine tasks and low social contact were consistent with the objective evidence. However, her cuing limitation and limitations due to his physical conditions were not persuasive nor were they consistent with the objective evidence. For instance, as discussed in detail above, Mr. Ogden has a history of depression and anxiety . . . . Review of the objective evidence indicated Mr. Ogden had case management with monthly phone check[s] and quarterly in office appointments . .*. . Review of his records from COPE
indicated Mr. Ogden endorsed stress due to his physical complaints and his living situation as well has irritability and anxiety about his first name. The records further showed Mr. Ogden expressed difficulty with being around people and remembering to take medications and or keep appointments. Although Mr. Ogden was observed to wear dirty clothes and as often smelling of body odor, he was also observed to have good eye contact with normal mood and affect. The objective evidence supports the residual functional capacity mental limitations.(Doc. 20-3, p. 28) (emphasis added) The ALJ did not include cueing in Ogden's RFC, but he did limit Ogden to “simple, repetitive routine tasks.” (Doc. 20-3, pp. 21-22)
The ALJ's analysis of the cueing limitation is not particularly clear. It appears that he discounted this limitation because Ogden demonstrated an ability to maintain monthly phone checks and quarterly office appointments even though he expressed difficulty with remembering to take medications and keeping appointments. The court agrees with Ogden that the ALJ's analysis here leaves something to be desired. Nevertheless, the court finds that even if the ALJ's analysis of the cueing limitation issue was insufficient, the error was harmless. The ALJ specifically limited Ogden's RFC to “simple, repetitive routine tasks.” This limitation would minimize Ogden's need for cueing, assuming that he has this need. See, e.g., Parsons v. Colvin, 2016 WL 5171660, at *6 (S.D. Tex. 2016) (Where claimant “recalled 2 of the 3 objects after five minutes, and the third one following semantic cu[e]ing, ” psychological consultant opined she “has no limitations in the ability to remember simple instructions, carry out simple instructions, and the ability to make judgments on simple work-related decisions.”); Sparks v. Comm'r of Soc. Sec., 2015 WL 5210463, at *10 (E.D. Mich. 2015) (“[T]he RFC accommodated the concentration and focus-based limitations that Dr. Caputo had recommended by limiting plaintiff to unskilled work that was simple, routine, and repetitive.”).
The court further notes that the AL J's RFC is consistent with the recommendation of the state agency physicians Randall J. Garland, Ph. D., and C. Eblen, Ph.D., who both opined that Ogden can understand, carry out, and remember simple instructions and procedures. (Doc. 20-4, pp. 40-41); (Doc. 20-4, p. 60) Neither of them suggested that Ogden would need cueing if he were limited to “simple, repetitive routine tasks.”
Discussion: Subjective Testimony
Ogden further argues that the ALJ failed to properly credit his own subjective testimony of disability. The court does not agree.
If there is medical evidence of underlying impairments “and there is no evidence of malingering, then the ALJ must give specific, clear and convincing reasons in order to reject the claimant's testimony about the severity of the symptoms.” Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (punctuation modified). “At the same time, the ALJ is not required to believe every allegation of disabling pain, or else disability benefits would be available for the asking . . . .” Id. “In evaluating the claimant's testimony the ALJ may use ordinary techniques of credibility evaluation.” Id. “For instance, the ALJ may consider inconsistencies either in the claimant's testimony or between the testimony and the claimant's conduct, unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment, and whether the claimant engages in daily activities inconsistent with the alleged symptoms.” Id.
In this case, the ALJ rejected Ogden's subjective testimony of disability and found that he was capable of performing light work with some non-exertional limitations. He discounted Ogden's testimony of disabling physical and mental limitations. Ogden limits this argument to his physical impairments, so the court will do likewise. (Doc. 21, pp. 12-13)
On the issue of physical limitations, the ALJ noted Ogden's assertion that he “had difficulty walking, sitting or standing due to left side paralysis.” (Doc. 20-3, p. 22) He found however that “the objective evidence was not consistent with the claimant's allegations but supports the residual functional capacity.” Id. Records from Banner University Medical Center in February 2017 showed Ogden's “[neurological exam was normal and physical exam noted normal muscular bulk and tone with some decreased power on the left.” (Doc. 20-3, p. 23) “Occupational therapy was also recommended.” Id. Similarly, in September of 2018, the records indicated that “[neurological examination was normal . . . normal musculature exam showed normal bulk and tone.” (Doc. 20-3, p. 24) “Strength was normal in the upper bilateral extremities with reduced lower left extremity strength.” Id. The ALJ acknowledged that Ogden has been using “various assistive devices including a cane, wheelchair and walker, however it was not until August 2019 that a provider prescribed a mobility device but did not specify what device would be prescribed.” (Doc. 20-3, p. 29) The ALJ also noted that the medical record contains reports that Ogden “gave poor effort for strength testing” when he was evaluated by the examining consultant Jeri Hassman, M.D. (Doc. 20-3, p. 27); see (Doc. 20-8, p. 32) (Hassman: “Neurological exam of both upper extremities was normal, although he did give poor effort for strength testing.”); see also (Doc. 20-8, p. 3) (Rothbaum: “It was noted that as he entered the office, he was walking with a walker but seemed to have no difficulty in the examining room.”)
Apparently, the ALJ believed that if Ogden really was unable to walk, sit, and stand to the extent required to perform light work, the medical record would reflect those limitations. Instead, the medical record indicated that his “[neurological examination was normal” and his “normal musculature exam showed normal bulk and tone.” (Doc. 20-3, p. 24); see, e.g., (Doc. 20-8, p. 3 3) (“Normal physical exam of all 4 extremities, although a difficult physical exam and he was marginally cooperative.”) The ALJ found these records inconsistent with Ogden's subjective testimony of physical disability. He also noted certain observations that pointed to possible malingering on Ogden's part.
The ALJ also found that Ogden's activities of daily living were inconsistent with disability. Ogden reported he “was able to drive a car, help clean out a garage, clear a property, help a friend move and helped as a mechanic when a friend's car needed repair.” (Doc. 20-3, p. 27) Household activities are not generally performed with the same persistence and pace required in the workplace, but they may be considered by the ALJ in evaluating a claimant's level of functional limitation. Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999); see, e.g., Curry v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1990) (Where the claimant “indicated that she was able to take care of her personal needs, prepare easy meals, do light housework, and shop for some groceries, ” the court found that “[a]n ability to perform such activities may be seen as inconsistent with the presence of a condition which would preclude all work activity.”).
The court finds that the ALJ's evaluation of Ogden's subjective testimony was proper. The medical record contains reports inconsistent with Ogden's testimony of disabling physical limitations. His activities of daily living are consistent with a person who is not disabled. Moreover, there is evidence in the medical record that points to malingering.
Ogden is correct when he notes that his record of daily activities is not necessarily incompatible with his claim of disability. (Doc. 23, pp. 4-5) It is, nevertheless, some evidence that he can perform work-related tasks and is not disabled. He is correct when he states that there is substantial evidence to support his claim to disabling limitations, but this argument overlooks the court's standard of review. The court does not reevaluate the evidence de novo. Instead, the court determines whether the ALJ's decision is supported by substantial evidence and free from legal error. “Where evidence is susceptible to more than one rational interpretation, the ALJ's decision should be upheld.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).
Discussion: Use of the Grids
Ogden argues that the ALJ erred when he used the Medical Vocational Guidelines (the Grids) to find that he was not disabled. In this case, the ALJ found that Ogden had non-exertional limitations including psychological limitations. Ogden argues that if a claimant has non-exertional limitations such as psychological limitations, the Grids cannot be used. (Doc. 21, p. 14) The court does not agree.
“The ALJ can use the [G]rids without vocational expert testimony when a non-exertional limitation is alleged because the [G]rids provide for the evaluation of claimants asserting both exertional and non-exertional limitations.” Hoopai v. Astrue, 499 F.3d 1071, 1075 (9th Cir. 2007) (punctuation modified). The Grids are only inapplicable “when a claimant's non-exertional limitations are sufficiently severe so as to significantly limit the range of work permitted by the claimant's exertional limitations.” Id.
Here, the ALJ found that Ogden could perform light work with the additional non-exertional limitations that he can “frequently climb ramps/stairs, stoop, kneel, crouch, balance and crawl; he should never climb ropes or scaffolds; he should occasionally avoid moving machinery and other workplace hazards; he could occasionally work at unprotected heights; he can have occasional interaction with the public, supervisors and co-workers; and he can perform simple, repetitive routine tasks.” (Doc. 20-3, p. 21) The ALJ concluded, however, that these additional limitations “have little or no effect on the occupational base of unskilled light work.” (Doc. 20-3, p. 31) Accordingly, the ALJ's application of the Grids was not error. See, e.g., Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007) (“We have not previously held mild or moderate depression to be a sufficiently severe non-exertional limitation that significantly limits a claimant's ability to do work beyond the exertional limitation.”); Carter v. Astrue, 2013 WL 754780, 6 (S.D.Cal. 2013) (The ALJ's reliance on the Grids was appropriate where “plaintiff had the RFC to perform light work, limited to simple, repetitive tasks in a non-public work setting.”), adopted by Carter v. Astrue, 2013 WL 755523 (S.D.Cal. 2013); Parsons v. Comm 'r of Soc. Sec, 2012 WL 4468542, at *9 (E.D. Cal. 26, 2012) (“Given that the non-exertional limitations noted by plaintiff-occasional postural activities and occasional interactions with others-do not significantly erode the occupational base of light work, see Social Security Ruling 85-15, the ALJ properly relied on the Grids.”). Ogden argues to the contrary but presents nothing more than his conclusory assertion. That is not enough. See Long v. Colvin, 2013 WL 4776553, *4 (E.D.Cal. 2013) (“Although plaintiff disputes the ALJ's finding that the occupational base would not be eroded, plaintiff has offered nothing more than a conclusory assertion of his disagreement, devoid any elaboration.”).
Ogden further argues that the ALJ “specifically denied Mr. Ogden's representative the opportunity to cross-examine the vocational expert who should have been called.” (Doc. 21, p. 15) He cites to Solis v. Schweiker, 719 F.2d. 301, 302 (9 th Cir. 1983) for the proposition that an ALJ abuses his discretion when he fails “to allow cross-examination of a medical expert on potential bias, even though the ALJ allowed interrogatories instead.” (Doc. 21, p. 15)
This court agrees that cross-examination is a valuable method for probing the veracity of testimony offered on direct examination. See 5 U.S.C.A. s 556 (d). In this case, however, there was no direct examination of the vocational expert. Therefore, the “right” to conduct a cross-examination, assuming there is one under certain circumstances, was not triggered. Ogden had no right to cross-examine the vocational expert on what he or she might have said on direct examination. See, e.g., Hoopai v. Astrue, 499 F.3d 1071, 1077 (9th Cir. 2007) (Where the ALJ properly relied on the Grids and did not call a vocational expert to testify, claimant's argument that “he was improperly denied the opportunity to cross-examine a vocational expert” was denied.). Ogden suggests that his due process rights were violated, but he provides no case law in support of his implicit assertion that the ALJ must provide a vocational expert if the claimant requests one.
In the alternative, the court finds that the ALJ's failure to call a vocational expert at step 5 is harmless error. ALJ Baum's RFC is identical to the RFC that ALJ Havens found when considering Ogden's first application. (Doc. 20-3, pp. 21-22); (Doc. 20-4, p. 9) As Ogden has pointed out, ALJ Havens called a vocational expert who testified that there were jobs that Ogden could perform in the national economy with that RFC - Plastic inspector/hand packager, marker, and bottle packer. (Doc. 20-4, pp. 15-16) Under the principle of res judicata, ALJ Baum was entitled to rely on the findings of that vocational expert and conclude at step 5 that Ogden was not disabled. See Schreier v. Astrue, 2009 WL 4757242, at *5 (D. Nev. 2009) (ALJ could rely on a vocational expert's testimony that supported a prior decision because the claimant's RFC did not change.). Ogden notes that it is possible that the number of jobs available “may have changed with the passage of time between the first decision and the second.” (Doc. 21, p. 14, n. 3) That is possible, but it is Ogden's burden to prove circumstances have changed if he is to escape the effects of res judicata, and he has offered no evidence that the number of jobs has changed.
RECOMMENDATION
For the foregoing reasons, the Magistrate Judge recommends that the District Court, after its independent review, enter an order affirming the Commissioner's decision denying benefits.
Pursuant to 28 U.S.C. § 636(b), any party may file and serve written objections within 14 days after being served with a copy of this Report and Recommendation. If objections are not timely filed, the party's right to de novo review may be waived. The Local Rules permit the filing of a response to an objection. They do not permit the filing of a reply to a response without permission from the District Court.