Opinion
Civil No. 05cv1142-WQH(NLS).
January 30, 2006
REPORT AND RECOMMENDATION RE PLAINTIFF'S MOTION FOR REVERSAL AND/OR REMAND and DEFENDANT'S MOTIONS FOR SUMMARY JUDGMENT
Plaintiff Annette Manfredo brought this action pursuant to Title 42, United States Code, section 405(g), to obtain judicial review of a final decision of the Commissioner of the Social Security Administration ("SSA") denying her application for disability insurance benefits. Before the Court is plaintiff's Motion for Reversal and/or Remand and defendant's combined Motion for Summary Judgment and Opposition to plaintiff's Motion. A copy of the Administrative Record ("A.R.") was filed with the Court on July 22, 2005. The parties' motions have been referred to this Court for a report and recommendation pursuant to Title 28, United States Code, section 636(b)(1)(B). The Court finds the issues in these motions appropriate for decision on the papers and without oral argument pursuant to Local Rule 7.1(d)(1). For the reasons outlined below, this Court recommends the district court DENY plaintiff's Motion for Reversal and/or Remand and GRANT defendant's Motion for Summary Judgment.
Procedural History
On April 17, 2003, plaintiff filed an application for Disability Insurance Benefits under the Social Security Act. Plaintiff's application was denied initially and on request for reconsideration. (A.R. at 12, 61-63.) At plaintiff's request, an administrative hearing was held on May 4, 2004. (A.R. at 12, 207-242.) A second hearing was held on October 29, 2004. (A.R. at 207-228.) Thereafter, the Administrative Law Judge ("ALJ") who presided at both of these hearings found plaintiff was not entitled to disability insurance benefits. (A.R. at 9, 20.) Plaintiff's request for review of the ALJ's decision was denied by the Appeals Council, making the ALJ's decision "the final decision of the Commissioner of Social Security" in plaintiff's case. (A.R. at 4.) On June 1, 2005, plaintiff filed this action seeking judicial review of the final decision.Background
Plaintiff was born on October 20, 1949 and was fifty-five years old at the time of the second hearing before the ALJ. (A.R. at 61, 235.) She testified she has a high school education and had taken administrative courses in college for one year. (A.R. at 235.) Plaintiff claims she became unable to work after a traffic accident in July of 2002. She was a passenger in a recreational vehicle that was involved in a head-on collision. (A.R. at 233.) Her job title just prior to the accident was operations analyst, and her employer was California Steel in Fontana, California. (A.R. at 233.) During the hearing, plaintiff testified she suffered from "debilitating headaches," pain in her lower back, neck, shoulders, arms and hands, as well as numbness in her arms and hands. (A.R. at 234.) In addition, plaintiff testified she suffered from anxiety and depression after the accident, that her anxiety was particularly acute while riding in a vehicle, and that she had trouble coping with a fatality that occurred as a result of the accident. (A.R. at 235-241.)
Discussion
I. Standard of Review.
The role of the district court in actions brought pursuant to Title 42, United States Code, section 405(g) is only to consider the pleadings and the record as it appeared before the SSA at the time of its decision. In other words, district courts generally do not entertain additional factual material, such as affidavits, which are allowed to support summary judgment motions brought pursuant to Federal Rule of Civil Procedure 56. McMullen v. Celebrezze, 335 F.2d 811, 813-814 (9th Cir. 1964), cert. denied 382 U.S. 854, reh'g denied 382 U.S. 922 (1965). Essentially, plaintiff's Motion for Reversal and/or Remand is a request for the district court to set aside the Commissioner's final decision. Likewise, defendant's Motion for Summary Judgment is essentially a request for the district court to affirm the Commissioner's final decision.
A reviewing court "may set aside a denial of benefits only if it is not supported by substantial evidence or if it is based on legal error." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), quoting Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997). 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." Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997), quoting Ramirez v. Shalala, 8 F.3d 1449, 1451 (9th Cir. 1993). "Where there is conflicting evidence sufficient to support either outcome, we must affirm the decision actually made." Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971), citing Galli v. Celebrezze, 339 F.2d 924, 925 (9th Cir. 1964).
II. Standards for Determining Eligibility.
In order to determine whether a claimant is disabled and thus entitled to benefits, the SSA applies a five-step evaluation process. "If at any step a finding of disability or non-disability can be made, the SSA will not review the claim further." Barnhart v. Thomas, 540 U.S. 20, 24 (2003). The Supreme Court in Barnhart v. Thomas recently described the five-step evaluation process as follows:
At the first step, the agency will find non-disability unless the claimant shows that he is not working at a `substantial gainful activity.' At step two the SSA will find non-disability unless the claimant shows that he has a `severe impairment,' defined as `any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities. At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled; if so, the claimant qualifies. If the claimant's impairment is not on the list, the inquiry proceeds to step four, at which the SSA assesses whether the claimant can do his previous work; unless he shows that he cannot, he is determined not to be disabled. If the claimant survives the fourth stage, the fifth, and final, step requires the SSA to consider so-called `vocational factors' (the claimant's age, education, and past work experience), and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy.Id.
Here, at step two, the ALJ determined plaintiff "has the following medically determinable severe impairments: central disc herniation C-5-C-6, a disk bulge of the low back, and arthritis of the cervical and lumbrosacral spine." (A.R. at 17.) At step three, the ALJ concluded plaintiff "does not have an impairment or combination of impairments listed in or medically equal to one listed in Appendix 1, Subpart P. Regulation No. 4." (A.R. at 17.) In her Motion, plaintiff does not challenge the ALJ's findings at steps one through three. As outlined more fully below, the arguments in plaintiff's Motion focus on the ALJ's analysis at step four.
IV. The ALJ's Determination at Step Four.
"At step four, claimants have the burden of showing that they can no longer perform their past relevant work." Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001). "Although the burden of proof lies with the claimant at step four, the ALJ still has a duty to make the requisite factual findings to support his conclusion." Id. "This is done by looking at the `residual functional capacity and the physical and mental demands' of the claimant's past relevant work." Id. "The claimant must be able to perform:
1. The actual functional demands and job duties of a particular past relevant job; or
2. The functional demands and job duties of the occupation as generally required by employers throughout the national economy."Id. "This requires specific findings as to the claimant's residual functional capacity, the physical and mental demands of the past relevant work, and the relation of the residual functional capacity to the past work." Id.
Plaintiff contends the ALJ's conclusion at step four of his analysis is ambiguous because the ALJ concluded plaintiff could return to her past relevant work as an administrative assistant, but the record establishes she never worked as an administrative assistant. Rather, her past relevant work was that of an operations analyst. In this regard, the ALJ's decision states plaintiff "has past relevant work as an operations analyst or administrative assistant as described in the Dictionary of Occupational Titles (DOT) (169.167-010)" (A.R. at 18 (emphasis added).) Although written in a conclusory manner, the meaning of the ALJ's statement is clear when read along with section 169.167-010 of the Dictionary of Occupational Titles and plaintiff's own description of her former job as an operations analyst, which is part of the record. (A.R. at 78.) Together, these two documents establish plaintiff's former job as an operations analyst is essentially equivalent to an administrative assistant.
Plaintiff also argues the ALJ concluded plaintiff has the ability to resume lighter aspects of her past relevant work without making the necessary findings as required by the Ninth Circuit's decision in Bonilla v. Secretary, 671 F.2d 1245, 1246 (9th Cir. 1982), and as a result, the ALJ's decision is not supported by substantial evidence. In Bonilla, the plaintiff had worked as a janitor but suffered neck and shoulder injuries "when an electric buffer machine went out of control." 671 F.2d at 1246. The ALJ determined plaintiff could return to her janitorial job because she was still capable of performing some of her former work assignments "as long as such assignments did not include the operation of heavy equipment." Id. at 1246. In pertinent part, the Ninth Circuit's decision reversing and remanding states as follows:
The Secretary cites a number of cases in favor of his proposition that a person is not disabled if he or she can perform the former work. Most of these cases, however, address a different issue. The cases are concerned with a person capable of doing different kinds of work, who loses only the ability to perform one of these. For example, if a person worked as both a switchboard operator and a construction worker, and could no longer work as a construction worker but could still work as a switchboard operator, that person would not be considered disabled. It is not enough to simply state that there is some kind of work the claimant can do.
* * * *
There was no evidence received by the administrative law judge which would indicate what kinds of jobs were available to [the claimant] and whether she could handle those jobs. Neither the Secretary nor the district court made any findings as to what a lighter form of [the claimant's] previous employment would require. Once the claimant proves that she is disabled from her last employment, the burden shifts to the Secretary to show that the claimant has the capacity to perform a specific job that exists in the national economy. . . . Facts pertaining to the capacity of an individual to perform a specific task must be introduced into evidence in order to support a finding that the claimant is able to do such work. . . . Since it is conceded that [the claimant] is no longer able to continue the heavy manual labor required of a janitress in a major building, it is incumbent upon the Secretary to show that there is work suitable for [the claimant]. . . . Nothing in the record indicates that the Secretary ever considered if there existed any janitress jobs which would not require [the claimant] to use her injured left arm daily or, more specifically whether there existed a janitress job which would require no lifting or straining of her left arm. . . . The Secretary did not meet his burden.
Plaintiff's reliance on Bonilla is misplaced. Contrary to plaintiff's argument, the ALJ did make findings based on relevant legal authority and evidence in the record to support his conclusion plaintiff is able to perform a lighter form of her past relevant work despite physical limitations which are supported by objective evidence. To reach this conclusion, the ALJ first made the following specific findings as to plaintiff's residual functional capacity: "The objective medical evidence supports a finding that the claimant retains the residual functional capacity to perform less than a full range of light work activities. She is limited to lifting 10 pounds frequently, 20 pounds occasionally; sitting eight hours in an eight hour day; standing and/or working six hours in an eight hour day; bending, kneeling, stooping, or crawling occasionally; fine and gross manipulation of both hands only up to frequently." (A.R. at 17.) In her Motion, plaintiff does not contest the ALJ's findings in this regard.
Second, the ALJ presented the vocational expert with a hypothetical based on his opinion as to plaintiff's residual functional capacity. The relevant testimony from plaintiff's second hearing held October 29, 2004 states as follows:
BY ADMINISTRATIVE LAW JUDGE:
Q. All right. Then let's suppose the individual is limited to lifting 20 pounds occasionally or 10 pounds frequently, can sit up to eight hours out of eight, stand and walk up to six hours out of eight with regular rest periods, regular work breaks, bending, kneeling, stooping and crawling on an occasional basis, and fine and gross manipulation, both hands, only up to frequently. With those limitations, could someone perform any of the claimant's prior work?
A. That would allow for someone to do the work of an administrative assistant as it's done in the national economy, according to the testimony, not as she performed it.
Q. Okay. And tell me how many such jobs there are in the region and the national economy.
A. Regionally for that position, there are 1,800 positions, and nationally, there are in excess of 25,000 positions.
(A.R. at 226.)
Plaintiff's counsel then requested clarification as to why the vocational expert concluded plaintiff could not return to her former job as an operations analyst. The relevant testimony by the vocational expert reads as follows:
EXAMINATION OF VOCATIONAL EXPERT BY ATTORNEY:
* * * *
Q. And what is the job function that she performed differently than in the national economy that makes it — that she can't perform her job now?
A. The keying either on the computer or on a calculator some days at least exceeded the frequent level that this job would typically be done at.
(A.R. at 227.) Based on the foregoing, the ALJ's decision states as follows: "The impartial vocational expert, Ms. Fioretti, testified that based upon the claimant's residual functional capacity, the claimant could return to her past relevant work as an administrative assistant, not as performed in her previous employment, but as generally performed in the national economy (Social Security Rule 82-61). It was the opinion of Ms. Fioretti that 1,800 such jobs exist in the regional economy and 25,000 in the national economy. Based on the testimony of the vocational expert, it is concluded that the claimant could return to her past relevant work as noted above" (A.R. at 18 (emphasis added).)
Although the ALJ's decision on this issue is written in a conclusory manner, it is supported by substantial evidence when viewed along with the content of the authorities and evidence cited therein. As outlined above, plaintiff's former position as an operations analyst is essentially the same as an administrative assistant as that term is defined in the Dictionary of Occupational Titles. However, as the vocational expert indicated in her testimony, plaintiff's former position of operations analyst was more demanding than other administrative assistant positions in one respect — it required more frequent "keying" on a computer and calculator. (A.R. at 227.) It is apparent the ALJ credited objective medical evidence indicating plaintiff can no longer work in a position requiring as much time keying on a computer and calculator as her prior position of operations analyst. The ALJ acknowledged this physical limitation in his residual functional capacity assessment when he stated as follows: "fine and gross manipulation of both hands only up to frequently." (A.R. at 17.) As the vocational expert testified, this limitation does mean plaintiff cannot return to her prior job as an operations analyst, but it does not preclude plaintiff from performing other administrative positions which typically require less frequent keying. Under these circumstances, Social Security Ruling 82-61 is instructive and was cited and followed by the ALJ. In pertinent part, Social Security Ruling 82-61 states as follows: "if the claimant cannot perform the excessive functional demands and job duties actually required in the former job but can perform the functional demands and job duties as generally required by employers throughout the economy, the claimant should be found to be `not disabled.'" SOCIAL SECURITY ADMINISTRATION, TITLES II AND XVI: PAST RELEVANT WORK — THE PARTICULAR JOB OR THE OCCUPATION AS GENERALLY PERFORMED, SSR 82-61 (1982). In contrast with Bonilla, where the evidence did not clearly support a finding lighter forms of the claimant's former janitorial job were actually available, the vocational expert in this case did testify administrative assistant positions requiring less keying do exist in sufficient numbers in the regional and national economy. Therefore, this Court finds unconvincing plaintiff's arguments the ALJ's decision is ambiguous and not supported by substantial evidence. As a result, there is no reason for reversal or remand, and the Commissioner's final decision should be affirmed.
Conclusion
This report and recommendation is submitted by the undersigned Magistrate Judge to the District Judge assigned to this case, pursuant to the provision of Title 28, United States Code, section 636(b)(1). Based on a review of the record and consideration of the briefs submitted, it is recommended the district court DENY plaintiff's Motion for Reversal and/or Remand and GRANT defendant's Motion for Summary Judgment.
Any party may file written objections to this report and recommendation no later than February 10, 2006. Any reply to objections shall be filed no later than February 17, 2006. The parties are advised that failure to file objections within the specified time may affect the scope of review on appeal. Baxter v. Sullivan, 923 F.2d 1392, 1394 (9th Cir. 1991).