Virginia Ruth v. Jo Anne B Barnhart

Case 2:05-cv-06875-MLG Document 18 Filed 09/11/06 Page 1 of 6 Page ID #:53 “O” 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF...

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Case 2:05-cv-06875-MLG Document 18 Filed 09/11/06 Page 1 of 6 Page ID #:53

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION

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VIRGINIA RUTH,

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Plaintiff,

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v. JO ANNE B. BARNHART, Commissioner of the Social Security Administration,

17 Defendant. 18 19

Plaintiff

Virginia

) ) ) ) ) ) ) ) ) ) ) ) ) Ruth

Case No. CV 05-6875 MLG MEMORANDUM OPINION AND ORDER

(“Plaintiff”)

seeks

review

of

the

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Commissioner’s final decision denying her applications for Disability

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Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”).

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For the reasons stated below, the Commissioner’s decision should be

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affirmed and this action should be dismissed with prejudice.

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I.

Factual and Procedural Background Plaintiff was born on February 4, 1948.

(Administrative Record

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(“AR”) at 63).

She has a high school education and past work experience

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as a sorter/coder, remittance clerk, food service worker, and medical

Case 2:05-cv-06875-MLG Document 18 Filed 09/11/06 Page 2 of 6 Page ID #:54

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assistant. (AR at 19).

Plaintiff filed applications for DIB and SSI on

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October 31, 2001.

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been disabled and unable to work since April 17, 2000, due to diabetes,

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high cholesterol, migraine headaches, high blood pressure, inflammation

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in her bones, depression, and difficulty sleeping.

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Plaintiff’s applications were denied at the administrative level.

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at 31-35).

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Administrative Law Judge (“ALJ”) on June 26, 2003.

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Plaintiff, who was represented by counsel, testified at the hearing.

(AR at 18, 63-65).

Plaintiff alleges that she has

(AR at 18, 23). (AR

At Plaintiff’s request, a hearing was held before an (AR at 298-331).

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(AR at 300-13).

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testified.

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decision finding that Plaintiff was not under a disability, as defined

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in the Social Security Act.

A vocational expert and two medical experts also

(AR at 313-29).

On October 24, 2004, the ALJ issued a

(AR at 18-29).

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The ALJ determined that Plaintiff had not engaged in substantial

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gainful activity since the filing date of her applications and that

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Plaintiff suffers from impairments that more than minimally restrict her

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ability to perform basic work related activity, including diabetes

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mellitus, hypertension, a history of chronic headaches, osteoarthritis

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of the thoracic and lumbosacral spine, a history of left shoulder pain,

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joint pain, and a depressive disorder.

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that Plaintiff’s impairments did not meet or equal one of the of the

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listed impairments in 20 C.F.R., Part 404, Subpart P, Appendix 1 (“the

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Listings”).

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performing

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stooping, kneeling, crouching, crawling, and overhead reaching with her

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upper extremities.

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Plaintiff’s ability to understand, remember, and carry out simple and

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complex instructions, perform activities in a regular schedule and

(AR at 20). medium

work

(AR at 20).

The ALJ concluded

The ALJ found that Plaintiff was capable of limited

to

occasional

(AR at 23, 25).

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climbing,

balancing,

The ALJ further found that

Case 2:05-cv-06875-MLG Document 18 Filed 09/11/06 Page 3 of 6 Page ID #:55

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maintain regular attendance and respond appropriately to changes in a

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work setting was “good,” Plaintiff’s ability to maintain attention,

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concentration, and persistence was “fair,” and Plaintiff’s ability to

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complete a workday and workweek without interruption from psychiatric

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based symptoms was “fair-to-good.” (AR at 25). Given these limitations,

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the ALJ concluded that Plaintiff was capable of performing her past work

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as a sorter/coder, remittance clerk, and food service worker.

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27).

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On July 18, 2005, the Appeals Council denied review.

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Therefore,

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Commissioner.

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judicial review.

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the

ALJ’s

decision

(AR at 5).

became

the

final

(AR at

(AR at 5-7).

decision

of

the

Plaintiff then commenced this action for

The parties filed a Joint Stipulation on July 26, 2006.

Plaintiff

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seeks remand for payment of benefits or, in the alternative, remand for

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further development of the record.

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Commissioner requests that the ALJ’s Decision be affirmed.

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Stipulation

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submission without oral argument.

at

15).

The

Joint

(Joint Stipulation at 15).

Stipulation

has

been

a

court

taken

The

(Joint under

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II.

Standard of Review Under

42

U.S.C.

§

405(g),

district

may

review

the

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Commissioner’s decision to deny benefits.

The Commissioner’s or ALJ’s

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findings and decision should be upheld if they are free from legal error

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and are supported by substantial evidence based on the record as a

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whole.

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(1971); Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001).

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Substantial evidence means such evidence as a reasonable person might

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accept as adequate to support a conclusion.

42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401

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Richardson, 402 U.S. at

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401; Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996).

It is more

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than a scintilla, but less than a preponderance.

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720.

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reviewing court “must review the administrative record as a whole,

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weighing both the evidence that supports and the evidence that detracts

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from

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reasonably support either affirming or reversing,” the reviewing court

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“may not substitute its judgment” for that of the Commissioner.

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720-721.

Reddick, 157 F.3d at

To determine whether substantial evidence supports a finding, the

the

Commissioner’s

conclusion.”

Id.

“If

the

evidence

can

Id. at

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III.

Discussion

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Plaintiff contends that the ALJ erred in concluding that she was

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capable of returning to her past work because she is precluded from

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engaging in more than occasional overhead reaching.

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present a persuasive claim.

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Plaintiff does not

At step four of the sequential analysis, the claimant bears the

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burden of establishing that she can no longer perform her past work.

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C.F.R. §§ 404.1520(e), 416.920(e); see Villa v. Heckler, 797 F.2d 794,

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798 (1986). Nevertheless, the ALJ is required to make adequate findings

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to support his conclusion by looking at the claimant’s “‘residual

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functional

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claimant’s past relevant work.”

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45 (9th Cir. 2001)(quoting 20 C.F.R. §§ 404.1520(e) and 416.920(e));

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Social Security Ruling (“SSR”) 82-62.

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disabled” if she retains the residual functional capacity to perform:

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(1) “[t]he actual functional demands and job duties of a particular past

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relevant job;” or (2) “[t]he functional demands and job duties of the

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occupation as generally required by employers throughout the national

capacity

and

the

physical

and

mental

demands’

of

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the

Pinto v. Massanari, 249 F.3d 840, 844-

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A claimant is considered “not

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economy.”

Pinto, 245 F.3d at 845 (citing SSR 82-61).

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Here, in assessing Plaintiff’s residual functional capacity, the

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ALJ found that Plaintiff was limited to no more than occasional overhead

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reaching with her upper extremities, in addition to a variety of other

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exertional and non-exertional restrictions.

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this residual functional capacity and the testimony of the vocational

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expert, the ALJ concluded that Plaintiff was capable of returning to her

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past work as a sorter/encoder, food service worker, and remittance

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clerk.

(AR at 23, 25).

Based on

(AR at 27, 77, 324-26).

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Plaintiff alleges that she was precluded from performing her past

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work because the Dictionary of Occupational Titles (“DOT”) establishes

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that the jobs of sorter/encoder, remittance clerk, and food service

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worker require frequent reaching.

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see DOT 209.687-022 (sorter), DOT 211.462-034 (teller), DOT 319.484-010

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(food assembler, kitchen); see also Pinto, 249 F.3d at 845-46 (the DOT

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is usually “the best source for determining how a job is generally

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performed”).

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“reaching”

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direction.”

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(“SSR”) 85-15)(emphasis added)).

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out that the DOT indicates that the sorter/encoder, remittance clerk,

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and food service worker jobs require frequent reaching, the DOT does not

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indicate that these jobs require frequent overhead reaching.

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209.687-022 (sorter), DOT 211.462-034 (teller), DOT 319.484-010 (food

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assembler, kitchen).

In

has

support

been

of

defined

(Joint Stipulation at 5-9, 11-14);

this as

argument,

“extending

Plaintiff

hands

and

notes arms

in

that any

(Joint Stipulation at 6 (quoting Social Security Ruling While Plaintiff has correctly pointed

See DOT

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Further, Plaintiff has not established that a limitation to no more

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than occasional overhead reaching is inconsistent with the performance

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of her past work as a sorter/encoder or food service worker, as those 5

Case 2:05-cv-06875-MLG Document 18 Filed 09/11/06 Page 6 of 6 Page ID #:58

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jobs were actually performed.

Pinto, 245 F.3d at 845. Plaintiff stated

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that her work as sorter/encoder involved operating a sorter machine,

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encoding checks, and frequent lifting and carrying of boxes weighing

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between ten and fifteen pounds.

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described the demands of her work as a food service worker.

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04).

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lifted things.

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made no mention of needing to reach more than occasionally, let alone

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reach overhead. (AR at 77, 302-04). Under these circumstances, the ALJ

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did not err in adopting the vocational expert’s testimony that Plaintiff

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was capable of returning to her past relevant work.

(AR at 77, 302).

Plaintiff also (AR at 303-

Plaintiff testified that she prepared food, washed dishes, and (AR at 304).

In describing these two jobs, Plaintiff

(AR at 27, 324-26).

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IV.

Conclusion Based upon the applicable legal standards, the Court finds that

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the decision of the Commissioner is supported by substantial evidence

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and that the Commissioner applied the proper legal standards.

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ORDER Accordingly, IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel.

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DATED: September 11, 2006

/S/ Marc L. Goldman ______________________________ MARC L. GOLDMAN United States Magistrate Judge

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English