Opinion
Case No. 3:17-cv-02059-AA
01-16-2019
JAMES B. JR., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
OPINION AND ORDER
:
Plaintiff James B. brings this action pursuant to the Social Security Act, 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security ("Commissioner"). The Commissioner denied plaintiff's application for Supplemental Security Income ("SSI"). For the reasons set forth below, the Commissioner's decision is AFFIRMED.
BACKGROUND
On April 17, 2014, plaintiff applied for SSI. He alleged disability beginning December 17, 2013, due to a right arm and head injury, problems with his right leg, severe pain in the right side of his body, multiple sclerosis, dyslexia, and a learning disability. Plaintiff's application was denied initially and upon reconsideration. On July 21, 2016, plaintiff appeared at a hearing before an ALJ. On August 18, 2016, the ALJ issued a decision finding plaintiff not disabled. The Appeals Council denied review making the ALJ's decision the final decision of the Commissioner. This action followed.
STANDARD OF REVIEW
The district court must affirm the Commissioner's decision if it is based upon proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). "Substantial evidence is more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Gutierrez v. Comm'r of Soc. Sec., 740 F.3d 519, 522 (9th Cir. 2014) (citation and quotation marks omitted). The court must weigh "both the evidence that supports and the evidence that detracts from the ALJ's conclusion." Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001). If the evidence is subject to more than one interpretation but the Commissioner's decision is rational, the Commissioner must be affirmed because "the court may not substitute its judgment for that of the Commissioner," Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).
COMMISSIONER'S DECISION
The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected . . . to last for a continuous period of not less than 12 months[.]" 42 U.S.C. § 423(d)(1)(A).
The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520(a)(4); id. § 416.920(a)(4). At step one, the ALJ found that plaintiff had not engaged in "substantial gainful activity" since the alleged disability onset date. Tr. 21; 20 C.F.R. §§ 404.1520(a)(4)(i), (b); id. §§ 416.920(a)(4)(i), (b). At step two, the ALJ found that plaintiff suffers from the severe impairments of degenerative disc disease, cervical spine with multilevel stenosis; right brachial plexus injury; and borderline intellectual functioning. Tr. 21; see also 20 C.F.R. §§ 404.1520(a)(4)(ii), (c); id. §§ 416.920(a)(4)(ii), (c). At step three, the ALJ determined that plaintiff's impairments, whether considered singly or in combination, did not meet or equal "one of the listed impairments" that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. Tr. 21; 20 C.F.R. §§ 404.1520(a)(4)(iii), (d); id. §§ 416.920(a)(4)(iii), (d).
The ALJ then assessed plaintiff's residual functional capacity ("RFC"). 20 C.F.R. § 404.1520(e); id. § 416.920(e). The ALJ found that plaintiff had the residual functional capacity to perform light work as defined in 20 C.F.R. § 416.967(b), and that plaintiff "can also perform simple, repetitive tasks, use the right (non-dominant) arm for assist only and occasionally reach above the shoulders on the right, but should not be doing handwriting, math, or spelling." Tr. 23.
At step four, the ALJ concluded plaintiff had no past relevant work. Tr. 27; 20 C.F.R. §§ 404.1520(a)(4)(iv), (f); id. §§ 416.920(a)(4)(iv). At step five, the ALJ concluded that plaintiff could perform work that exists in significant numbers in the national economy; specifically, plaintiff would work as a price marker, Dictionary of Occupational Titles ("DOT") 209.587-034, available at 1991 WL 671802; labeler, DOT 920.687-126, available at 1991 WL 687992; solderer, DOT 813.684-022, available at 1991 WL 681592; and produce sorter, DOT 529.687-186, available at 1991 WL 674781. Tr. 28; 20 C.F.R. §§ 404.1520(a)(4)(v), (g)(1). Accordingly, the ALJ found plaintiff was not disabled, and denied his application. Tr. 28,
DISCUSSION
Plaintiff challenges the ALJ's analysis at step five. During the hearing, the ALJ posed a hypothetical including all of the limitations that the ALJ provided in his RFC to a vocational expert ("VE"). The VE testified that someone with the characteristics described in the hypothetical could perform work as a price marker or labeler, among other jobs, as they are described in the DOT. Relying on that testimony, the ALJ concluded that with his RFC, plaintiff could perform the price marker and labeler positions as generally performed.
Plaintiff claims that the ALJ erred by relying on the VE's testimony that plaintiff could perform work as a price marker or labeler without reconciling the apparent conflict between the ALJ's RFC determination and the DOT's descriptions of those jobs. Plaintiff asserts that the jobs of price marker and labeler exceed plaintiff's RFC because they cany a General Educational Development ("GED") reasoning level of two. Plaintiff argues that jobs with this requirement are incompatible with the ALJ's RFC restrictions to simple, routine tasks.
Level Two reasoning requires a claimant to "[a]pply commonsense understanding to cany out detailed but uninvolved written or oral instructions" and to "[d]eal with problems involving a few concrete variables in or from standardized situations." DOT app. C, available at 1991 WL 688702 (4th ed. 1991). As plaintiff points out, district courts are divided on the question of whether the ability to perform simple, routine or simple, repetitive tasks is consistent with Level Two reasoning and there is no controlling Ninth Circuit precedent on the issue. Gottschalk v. Colvin, Case No. 6:13-cv-00125-JE, 2014 WL 1745000, at *4 (D. Or. May 1, 2014). However, courts in this district have repeatedly held that the ability to do "simple, routine tasks" is consistent with Level Two reasoning. See, e.g., Goodwin v. Comm'r Soc. Sec. Admin., Case No. 3:15-cv-02115-SU, 2017 WL 138470, at *4 (D. Or. March 28, 2017) (so holding and citing a selection of cases). And many unpublished opinions of the Ninth Circuit have reached the same conclusion. See Hernandez v. Berryhill, 707 F. App'x 456, 458 (9th Cir. 2017); Abrew v. Astrue, 303 F. App'x 567, 569 (9th Cir. 2008); Lara v. Astrue, 305 F. App'x 324, 326 (9th Cir. 2008). I find these opinions persuasive and conclude that this limitation is not inconsistent with the DOT requirements for price marker or labeler jobs.
Plaintiff asserts for the first time in his reply brief that the DOT descriptions for price marker and labeler require workers to perform tasks that plaintiff argues are incompatible with the ALJ's RFC determination that plaintiff not perform jobs that involve handwriting, math, or spelling. Because plaintiff did not raise that argument in his opening brief, it is not properly before the Court and will not be considered. United States v. Romm, 455 F.3d 990, 997 (9th Cir. 2006).
In sum, there is no apparent conflict between the RFC and the DOT requirements. Accordingly, the ALJ did not err in relying on the VE's testimony to find that plaintiff could perform work as a labeler and price marker.
Because ALJ did not err in finding that plaintiff could perform work as a labeler and price marker, I need not address plaintiff's argument that the other positions, solderer and produce sorter, do not exist in significant numbers. --------
CONCLUSION
Pursuant to sentence four of 42 U.S.C. § 405(g), the decision of the Commissioner AFFIRMED and this case is DISMISSED. Final judgment shall be entered accordingly. IT IS SO ORDERED.
Dated this 16th day of January 2019.
/s/_________
Ann Aiken
United States District Judge