Opinion
No. CV-09-196-JPH.
April 23, 2010
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT are cross-motions for summary judgment noted for hearing without oral argument on March 12, 2010 (Ct. Rec. 12, 15). Attorney Lora Lee Stover represents Plaintiff; Special Assistant United States Attorney Stephanie Martz represents the Commissioner of Social Security (Commissioner). The parties have consented to proceed before a magistrate judge (Ct. Rec. 6). After reviewing the administrative record and the briefs filed by the parties, the court GRANTS Defendant's Motion for Summary Judgment (Ct. Rec. 15) and DENIES Plaintiff's Motion for Summary Judgment (Ct. Rec. 12).
JURISDICTION
Plaintiff protectively filed applications for disability insurance benefits (DIB) and supplemental security income (SSI) on April 11, 2007, alleging disability beginning August 28, 2006 (Tr. 94-96, 102-108, 134). The applications were denied initially and on reconsideration (Tr. 60-63, 65-66).
At a hearing before Administrative Law Judge (ALJ) R. J. Payne on February 23, 2009, plaintiff, represented by counsel, and medical expert Arthur Brovender, M.D., testified (Tr. 27-55). On March 10, 2009, the ALJ issued an unfavorable decision (Tr. 16-24). The Appeals Council denied Mr. Guzman's request for review on May 19, 2009 (Tr. 1-4). Therefore, the ALJ's decision became the final decision of the Commissioner, which is appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review pursuant to 42 U.S.C. § 405(g) on July 1, 2009 (Ct. Rec. 2, 4).
STATEMENT OF FACTS
The facts have been presented in the administrative hearing transcript, the ALJ's decision, the briefs of both plaintiff and the Commissioner, and are briefly summarized here.
Plaintiff was 55 years old at onset (Tr. 94-96). He earned a GED and completed four or more years of college, ending with digital design classes at a community college in 2005 (Tr. 132, 175). Mr. Guzman testified he worked as a billing consultant for a year from 2000-2001, and in 2005 as a website design assistant, both sedentary positions (Tr. 36-38). His more strenuous past jobs include carpet installer's helper, press operator, bindery specialist and welder/fabricator (Tr. 49,124,130).
SEQUENTIAL EVALUATION PROCESS
The Social Security Act (the "Act") defines "disability" as the "inability 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 twelve months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a Plaintiff shall be determined to be under a disability only if any impairments are of such severity that a plaintiff is not only unable to do previous work but cannot, considering plaintiff's age, education and work experiences, engage in any other substantial gainful work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).
The Commissioner has established a five-step sequential evaluation process for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step one determines if the person is engaged in substantial gainful activities. If so, benefits are denied. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(I). If not, the decision maker proceeds to step two, which determines whether plaintiff has a medically severe impairment or combination of impairments. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
If plaintiff does not have a severe impairment or combination of impairments, the disability claim is denied. If the impairment is severe, the evaluation proceeds to the third step, which compares plaintiff's impairment with a number of listed impairments acknowledged by the Commissioner to be so severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii); 20 C.F.R. § 404 Subpt. P, App. 1. If the impairment meets or equals one of the listed impairments, plaintiff is conclusively presumed to be disabled. If the impairment is not one conclusively presumed to be disabling, the evaluation proceeds to the fourth step, which determines whether the impairment prevents plaintiff from performing work which was performed in the past. If a plaintiff is able to perform previous work, that Plaintiff is deemed not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, plaintiff's residual functional capacity ("RFC") assessment is considered. If plaintiff cannot perform this work, the fifth and final step in the process determines whether plaintiff is able to perform other work in the national economy in view of plaintiff's residual functional capacity, age, education and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987).
The initial burden of proof rests upon plaintiff to establish a prima facie case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden is met once plaintiff establishes that a physical or mental impairment prevents the performance of previous work. Hoffman v. Heckler, 785 F.3d 1423, 1425 (9th Cir. 1986). The burden then shifts, at step five, to the Commissioner to show that (1) plaintiff can perform other substantial gainful activity and (2) a "significant number of jobs exist in the national economy" which plaintiff can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984); Tackett v. Apfel, 180 F.3d 1094, 1099 (1999).
STANDARD OF REVIEW
Congress has provided a limited scope of judicial review of a Commissioner's decision. 42 U.S.C. § 405(g). A Court must uphold the Commissioner's decision, made through an ALJ, when the determination is not based on legal error and is supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985); Tackett, 180 F.3d at 1097 (9th Cir. 1999). "The [Commissioner's] determination that a plaintiff is not disabled will be upheld if the findings of fact are supported by substantial evidence." Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 1983) (citing 42 U.S.C. § 405(g)). Substantial evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-602 (9th Cir. 1989); Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th Cir. 1988). Substantial evidence "means such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations omitted). "[S]uch inferences and conclusions as the [Commissioner] may reasonably draw from the evidence" will also be upheld. Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). On review, the Court considers the record as a whole, not just the evidence supporting the decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989) (quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 1980)).
It is the role of the trier of fact, not this Court, to resolve conflicts in evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational interpretation, the Court may not substitute its judgment for that of the Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be set aside if the proper legal standards were not applied in weighing the evidence and making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the administrative findings, or if there is conflicting evidence that will support a finding of either disability or nondisability, the finding of the Commissioner is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987).
ALJ'S FINDINGS
At the outset, the ALJ found plaintiff was insured through December 31, 2006, for DIB purposes (Tr. 16, 18). At step one he found Mr. Guzman has not engaged in substantial gainful activity since onset (Tr. 18). At steps two and three, ALJ Payne found plaintiff suffers from a history of left knee and leg fracture injuries, arthritis, and depression, impairments that are severe but which do not alone or in combination meet or medically equal a Listed impairment (Tr. 18, 20). The ALJ found plaintiff less than completely credible (Tr. 21-22). At step four, he found plaintiff's RFC for a wide range of sedentary work enables him to perform two of his past jobs, website design assistant and billings consultant (Tr. 22). Alternatively, the ALJ found at step five plaintiff can perform other jobs (Tr. 23). Accordingly, he found plaintiff is not disabled as defined by the Social Security Act (Tr. 24).
ISSUES
Plaintiff contends the Commissioner erred as a matter of law by failing to properly weigh the medical and psychological evidence, specifically the opinions of treating surgeon Tycho Kersten, M.D., examining orthopedist William Shanks, M.D., and examining psychologist Kaylee Islam-Zwart, Ph.D.; and by improperly assessing Mr. Guzman's credibility. Mr. Guzman alleges the ALJ should have found him disabled at step five pursuant to "Grid Rule" 201.06 based on his stipulation to a step five determination at the hearing (Ct. Rec. 13 at 6, 8-12). Asserting the ALJ's decision is supported by substantial evidence and free of legal error, the Commissioner asks the Court to affirm (Ct. Rec. 24 at 7, 17).
See 20 C.F.R. Part 404, Subpart P, Appendix 2 (the "Grids")
DISCUSSION
A. Weighing medical evidence
In social security proceedings, the claimant must prove the existence of a physical or mental impairment by providing medical evidence consisting of signs, symptoms, and laboratory findings; the claimant's own statement of symptoms alone will not suffice. 20 C.F.R. § 416.908. The effects of all symptoms must be evaluated on the basis of a medically determinable impairment which can be shown to be the cause of the symptoms. 20 C.F.R. § 416.929. Once medical evidence of an underlying impairment has been shown, medical findings are not required to support the alleged severity of symptoms. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cr. 1991).
A treating physician's opinion is given special weight because of familiarity with the claimant and the claimant's physical condition. Fair v. Bowen, 885 F.2d 597, 604-05 (9th Cir. 1989). However, the treating physician's opinion is not "necessarily conclusive as to either a physical condition or the ultimate issue of disability." Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citations omitted). More weight is given to a treating physician than an examining physician. Lester v. Cater, 81 F.3d 821, 830 (9th Cir. 1996). Correspondingly, more weight is given to the opinions of treating and examining physicians than to nonexamining physicians. Benecke v. Barnhart, 379 F.3d 587, 592 (9th Cir. 2004). If the treating or examining physician's opinions are not contradicted, they can be rejected only with clear and convincing reasons. Lester, 81 F.3d at 830. If contradicted, the ALJ may reject an opinion if he states specific, legitimate reasons that are supported by substantial evidence. See Flaten v. Secretary of Health and Human Serv., 44 F.3d 1453, 1463 (9th Cir. 1995).
In addition to the testimony of a nonexamining medical advisor, the ALJ must have other evidence to support a decision to reject the opinion of a treating physician, such as laboratory test results, contrary reports from examining physicians, and testimony from the claimant that was inconsistent with the treating physician's opinion. Magallanes v. Bowen, 881 F.2d 747, 751-52 (9th Cir. 1989); Andrews v. Shalala, 53 F.3d 1042-43 (9th Cir. 1995).
Mr. Guzman argues the ALJ failed to properly credit the opinions of treating surgeon Tycho Kersten, M.D., and of examining orthopedist William Shanks, M.D. (Ct. Rec. 13 at 10-11). He appears to argue the ALJ's RFC for a wide range of sedentary work is inconsistent with the opinions of the two doctors (Ct. Rec. 13 at 11), but the record does not support plaintiff's assertion.
Following a motorcycle accident on August 29, 2006, Dr. Kersten removed plaintiff's shattered patella (Tr. 233). Also on August 29, 2006, Dr. Kersten opined Mr. Guzman's ability to sit, stand, walk, lift and carry was severely limited. He expected these limitations to last 4 to 6 months (Tr. 282-283). Mr. Guzman tolerated the surgery well and was discharged August 31, 2006 (Tr. 234-235). Several months later Mr. Guzman told Dr. Kersten he mowed his lawn two days after being discharged from the hospital (Tr. 320).
Dr. Kersten notes one month after surgery plaintiff feels things are improving. The surgeon opined Mr. Guzman "really needs to get into [physical] therapy as recommended" (Tr. 293). Mr. Guzman attended seven physical therapy sessions (Tr. 302).
Plaintiff said he was unemployed in August of 2006 "but he just finished school for web design" (Tr. 237).
On April 27, 2007, Dr. Kersten examined Mr. Guzman and opined he was capable of sedentary work with no limitations. He limited plaintiff to lifting no more than 25 pounds and standing no more than one hour a day, both consistent with an RFC for sedentary work (Tr. 319). Contrary to plaintiff's argument, Dr. Kersten's RFC is consistent with the ALJ's.
Dr. Shanks examined Mr. Guzman on July 31, 2007 (Tr. 356-361). He notes:
[Plaintiff] developed problems in his left knee in early 2003 without any specific injury . . . He eventually had surgery in March of 2003 and was found to have chondral flap associated with chondromalacia of the patella. He improved following that surgery and was able to return to work as a welder and metal fabricator.
(Tr. 356). At the time of Dr. Shanks' exam plaintiff was receiving no medical treatment (Id). Dr. Shanks notes Mr. Guzman earned an associate's degree in computer manufacturing but was never to get work in the field. When able to find a job, plaintiff works as a welder and metal fabricator (Tr. 357).
Dr. Shanks assessed an RFC for severely limited to sedentary work. He assessed no sitting limitations, and opined plaintiff needs further training (Tr. 358-361). This RFC is similar to those assessed by Dr. Kersten and the ALJ, although as an examining rather than treating physician Dr. Shanks's opinion is entitled to less weight. In September of 2008, Dr. Shanks examined plaintiff again. He refers to Mr. Guzman performing "only heavy type work in the past," indicating he was unaware of plaintiff's two prior sedentary jobs (Tr. 392, 399). After he examined plaintiff, Dr. Shanks again assessed no sitting limitations. His 2008 RFC is similarly consistent with those of Dr. Kersten and the ALJ. Plaintiff's argument the ALJ improperly rejected these opinions is unsupported by the record.
With respect to mental impairments, plaintiff alleges the ALJ failed to adopt two moderate limitations assessed by examining psychologist Dr. Islam-Swart, Ph.D. (Ct. Rec. 13 at 10, referring to Tr. 348-355). On June 28, 2007, she evaluated plaintiff for complaints of "knee problems and related anxiety and depression" (Tr. 348). Plaintiff took no medications of any kind and was not undergoing mental health treatment (Tr. 350-351). Defensiveness and exaggeration appeared on testing (Tr. 354). Dr. Islam-Swart opined Mr. Guzman's ability to respond appropriately to and tolerate the expectations of a normal work setting, and his ability to control physical or motor movements, are moderately limited (Tr. 350). As the ALJ points out, she assessed a GAF of 65, indicating some mild symptoms or difficulty but generally functioning pretty well. And, the ALJ observes, Dr. Islam-Swart opined plaintiff's mental symptoms would likely stop if his knee pain improved (Tr. 19, 21, referring to Tr. 355). There is no other evidence of psychological impairment or treatment.
Diagnostic and Statistical Manual of Mental Disorders, 4th Ed. at p. 32 (DSM IV) (2005).
Medical expert Dr. Brovender testified Mr. Guzman should lift and carry less than 20 pounds. He opined plaintiff could sit two hours at a time without interruption; stand or walk an hour at a time without interruption; sit 8 hours in a work day, and stand and walk 2 hours each, total, in a workday. He assessed several postural and environmental limitations (Tr. 422-423, 425-426).
To further aid in weighing the conflicting medical evidence, the ALJ evaluated plaintiff's credibility and found him less than fully credible (Tr. 21). Credibility determinations bear on evaluations of medical evidence when an ALJ is presented with conflicting medical opinions or inconsistency between a claimant's subjective complaints and diagnosed condition. See Webb v. Barnhart, 433 F.3d 683, 688 (9th Cir. 2005).
It is the province of the ALJ to make credibility determinations. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). However, the ALJ's findings must be supported by specific cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Once the claimant produces medical evidence of an underlying medical impairment, the ALJ may not discredit testimony as to the severity of an impairment because it is unsupported by medical evidence. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). Absent affirmative evidence of malingering, the ALJ's reasons for rejecting the claimant's testimony must be "clear and convincing." Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). "General findings are insufficient: rather the ALJ must identify what testimony not credible and what evidence undermines the claimant's complaints." Lester, 81 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993).
Some of the factors the ALJ relied on to assess credibility include: (1) treatment providers and examining physicians opine plaintiff is able to perform sedentary work with no limitations (other than unchallenged postural and/or environmental limitations), indicating Mr. Guzman's complaints are inconsistent with essentially all of the acceptable source medical evidence. (2) Plaintiff's lack of treatment for allegedly disabling pain. The ALJ notes plaintiff sought no medical attention or treatment for six months, from April to October of 2007 (Tr. 21). (3) Plaintiff's inconsistent statements. The ALJ notes plaintiff testified sitting bothers him (Tr. 47) but elevating his leg is best (Tr. 46), a seated task (Tr. 20). Plaintiff has past sedentary work but was tardy disclosing it (see below) (Tr. 20, 22).
The record fully supports the ALJ's clear and convincing reasons.
In addition, plaintiff's activities during the relevant periods of August 28, 2006 through December 31, 2006 (DIB), and August 2006 through March 10, 2009 (SSI), are inconsistent with his complaints of disabling pain. He shoveled snow on January 9, 2008. As noted, plaintiff mowed the lawn two days after surgery in 2006 (Tr. 320,379). He does laundry, cooks, drives, works at his computer, performs light housekeeping and yard work, shops, reads, and enjoys watching movies (Tr. 51, 116, 118-120, 138, 140-143, 179-182, 354), activities also inconsistent with complaints of disabling pain.
With respect to credibility, perhaps most significant is plaintiff's failure to mention a past sedentary job as a billing consultant in the forms he completed for the agency, as noted by the ALJ (Tr. 22, citing Exhibits 7E, 17E). Mr. Guzman's credibility is further diminished by inconsistent descriptions of his past job of website design assistant in 2005.
At the hearing ALJ Payne asked plaintiff if he performed any sedentary jobs after 1994 (Tr. 36). According to plaintiff and/or his attorney, Mr. Guzman worked full time for a year for "ICT" as a billing consultant for AOL (Tr. 36-38). At the hearing the ALJ pointed out plaintiff failed to include this job in Exhibit 7E (at Tr. 149), an undated work history report (Tr. 38). Mr. Guzman's attorney referred the ALJ to Exhibit 2E, dated 9/15/06, which showed plaintiff worked full time from August 2000 to August of 2001 as a billing consultant (Tr. 38, referring to Tr. 124,128 dated 9/15/2006). Although described as sedentary at the hearing, on the form Mr. Guzman described the job as requiring standing and sitting 4 hours each daily day (Tr. 128). In an undated form, plaintiff describes the job as sitting for 6 hours out of 8 and lifting 100 pounds (Tr. 210). The ALJ observes lifting was attributed to a move and "is certainly not the norm for the position" (Tr. 22).
Interestingly, Mr. Guzman did not list the billing consultant position until the agency notified him a federal query revealed he earned $5313.92 in 2000 and $11,773.28 in 2001, both from the "ICT Group." The agency requested a complete job description "as that job was not described on your work history that you completed" (Tr. 198).
Plaintiff inconsistently described completing website design studies in 2005. In August of 2006, as noted, Mr. Guzman told Dr. Kersten he recently finished school for web design (Tr. 237). Plaintiff told DSHS he did not complete the program because the "grant stopped" (Tr. 133). In his position as a website design assistant plaintiff indicates he (1) worked "part-time, 2-4 hours a day" fixing or upgrading websites (Tr. 38); (2) worked 10-30 hours a week (Tr. 133); and (3) worked for 14 months, 4-6 hours a day, 4-5 days a week, and supervised two people (Tr. 124, 130).
The ALJ considered lay testimony when he weighed credibility and determined plaintiff's RFC. Lay testimony as to a claimant's symptoms is competent evidence that an ALJ must take into account, unless he or she expressly determines to disregard such testimony and gives reasons germane to each witness for doing so. Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) (citation omitted). One reason for which an ALJ may discount lay testimony is that it conflicts with medical evidence. Lewis v. Apfel, 236 F.3d 503, 511-512 (9th Cir. 2001).
ALJ Payne's RFC is largely consistent with the limitations described by plaintiff's daughter, Vanessa Guzman (Tr. 21). In May of 2007, Ms. Guzman reported her father has trouble sitting. His hobbies, however, include working at his computer, reading, origami, and watching movies — all seated sedentary activities (Tr. 21, citing Exhibit 9E at Tr. 178-186). The ALJ points out plaintiff and his daughter visit each other, she helps him shop, and [although he has trouble getting around] he "keeps himself busy for the most part" (Id., referring to Tr. 178).
The ALJ notes [a month earlier, in April of 2007] Dr. Kersten opined Mr. Guzman is able to perform sedentary work. The ALJ's RFC is generally consistent with the opinions of lay and medical witnesses.
The ALJ correctly relied on several factors, including complaints inconsistent with medical opinions, infrequent treatment for allegedly disabling pain, inconsistent statements, and lay testimony, when he found Mr. Guzman less than completely credible (Tr. 20-21).
The ALJ's reasons for finding plaintiff less than fully credible are clear, convincing, and fully supported by the record. See Thomas v. Barnhart, 278 F. 3d 947, 958-959 (9th Cir. 2002) (proper factors include inconsistencies in plaintiff's statements, inconsistencies between statements and conduct, and extent of daily activities). Noncompliance with medical care or unexplained or inadequately explained reasons for failing to seek medical treatment also cast doubt on a claimant's subjective complaints. 20 C.F.R. §§ 404.1530, 426.930; Fair v. Bowen, 885 F. 2d 597, 603 (9th Cir. 1989).
The ALJ notes no treating or examining physician has opined plaintiff is unable to perform sedentary work (Tr. 21). He is correct the record shows periods of time during which Mr. Guzman did not specify any particular complaint and sought medical attention infrequently for allegedly disabling symptoms (Tr. 21; see 356, 369, 375, 384, 389, 407, 414).
The ALJ properly weighed the evidence of Mr. Guzman's physical impairment as well as his credibility.
B. Mental impairment
Contrary to plaintiff's assertion, the ALJ includes depression as a severe impairment at step two (Tr. 18). After weighing the evidence, the ALJ did not include mental limitations in Mr. Guzman's RFC.
When he determined plaintiff's RFC, the ALJ relied on the examining psychologist's noted GAF of 65, indicative of only mild limitations (Tr. 19, 21). He notes Dr. Islam-Swart felt plaintiff's depression was related to two knee surgeries (in 2003 and 2006). During the relevant periods, the ALJ observes no psychological symptoms lasted twelve consecutive months as required (Tr. 21). ALJ Payne considered plaintiff's credibility when he weighed the evidence of mental limitation. Notably, plaintiff did not undergo any mental health treatment during the relevant periods.
The ALJ is responsible for reviewing the evidence and resolving conflicts or ambiguities in testimony. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). It is the role of the trier of fact, not this court, to resolve conflicts in evidence. Richardson, 402 U.S. at 400. The court has a limited role in determining whether the ALJ's decision is supported by substantial evidence and may not substitute its own judgment for that of the ALJ, even if it might justifiably have reached a different result upon de novo review. 42 U.S.C. § 405(g).
The ALJ's assessed RFC is fully supported by the record and without error.
B. Steps four and five
Plaintiff essentially contends the ALJ erred by refusing to be bound by Mr. Guzman's stipulation to a step five decision; he alleges had the ALJ done so, a finding of disability would be directed by Medical Vocational Rule 201.06 (Ct. Rec. 13 at 8, apparently relying on Tr. 53). The argument is legally flawed.
At step four, plaintiff bears the burden of showing he is unable to perform any past relevant work, Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999), a step Mr. Guzman's argument conveniently overlooks. The ALJ points out:
". . . the claimant's representative conspicuously skipped an assessment at step four as this would bypass the realization/acknowledgment that the claimant had past work that is sedentary in nature. Additionally, he also noted only . . . Rules 201.04 and .06 that indicated `high school education or more — does not provide for direct entry into skilled work' and that he [plaintiff] did not have any transferable work skills. However, the claimant does have advanced education and a skilled work history and therefore, may have transferable skills."
(Tr. 22).
The step four burden cannot be stipulated away unless the Commissioner agrees. He has not.
The ALJ found Mr. Guzman can perform two of his past jobs, billing consultant and web design assistant (Tr. 22). The record fully supports the determination. Based on SGA and as described in the DOT, plaintiff's RFC is consistent with the requirements of the jobs of billing clerk and web consultant (Tr. 199).
Plaintiff's inconsistent descriptions of these jobs, and his professed dislike of the billing job, do not provide a basis for reversing the ALJ's step four determination. Because the ALJ's step four finding is without error, any alleged error in the alternative step five analysis need not be addressed.
The Court finds the ALJ's assessment of the evidence is supported by the record and free of legal error.
CONCLUSION
Having reviewed the record and the ALJ's conclusions, this court finds that the ALJ's decision is free of legal error and supported by substantial evidence.
IT IS ORDERED:
1. Defendant's Motion for Summary Judgment (Ct. Rec. 15) is GRANTED.
2. Plaintiff's Motion for Summary Judgment (Ct. Rec. 12) is DENIED.
The District Court Executive is directed to file this Order, provide copies to counsel for Plaintiff and Defendant, enter judgment in favor of Defendant, and CLOSE this file.