1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER P. ) Case No. CV 18-6484-SP ) 12 Plaintiff, ) ) 13 v. ) MEMORANDUM OPINION AND ) ORDER 14 ) ANDREW M. SAUL, Commissioner of ) 15 Social Security Administration, ) ) 16 Defendant. ) ) 17 ) 18 19 I. 20 INTRODUCTION 21 On July 27, 2018, plaintiff Christopher P. filed a complaint against 22 defendant, the Commissioner of the Social Security Administration 23 (“Commissioner”), seeking a review of a denial of a period of disability and 24 disability insurance benefits (“DIB”). The parties have fully briefed the matters in 25 dispute, and the court deems the matter suitable for adjudication without oral 26 argument. 27 Plaintiff presents two disputed issues for decision: (1) whether the 28 1 Administrative Law Judge (“ALJ”) posed a complete hypothetical to the vocational 2 expert; and (2) whether the ALJ properly classified plaintiff’s position as a greeter 3 as past relevant work. Plaintiff’s Opening Brief (“P. Mem.”) at 6-11; see 4 Defendant’s Memorandum in Support of Answer (“D. Mem.”) at 1-4. 5 Having carefully studied the parties’ memoranda on the issues in dispute, the 6 Administrative Record (“AR”), and the decision of the ALJ, the court concludes 7 that, as detailed herein, the ALJ posed a complete hypothetical and properly 8 classified plaintiff’s work. Consequently, the court affirms the decision of the 9 Commissioner denying benefits. 10 II. 11 FACTUAL AND PROCEDURAL BACKGROUND 12 Plaintiff, who was 55 years old on the alleged disability onset date, has an 13 eleventh grade education. AR at 205-06, 269. Plaintiff has past relevant work as a 14 hybrid of stock clerk and merchandise deliverer, stock clerk by itself, and sales 15 attendant. Id. at 260-61. Plaintiff refers to the sales attendant job as a greeter. See, 16 e.g., id. at 259. The vocational expert classified the greeter job as a sales attendant 17 position. Id. at 261. 18 On December 23, 2014, plaintiff filed an application for a period of 19 disability and DIB, alleging an onset date of July 21, 2013 due to knee, back, wrist, 20 hand, neck, ankle, and shoulder pain. Id. at 269. The Commissioner denied 21 plaintiff’s application initially and upon reconsideration, after which he filed a 22 request for a hearing. Id. at 287-98. 23 On March 16, 2017, plaintiff, represented by counsel, appeared and testified 24 at a hearing before the ALJ. Id. at 199-267. The ALJ also heard testimony from 25 Nick Corso, a vocational expert. Id. at 260-65. On August 25, 2017, the ALJ 26 denied plaintiff’s claim for benefits. Id. at 32-42. 27 Applying the well-known five-step sequential evaluation process, the ALJ 28 1 found, at step one, that plaintiff had not engaged in substantial gainful activity 2 since July 21, 2013, the alleged onset date. Id. at 34. 3 At step two, the ALJ found plaintiff suffered from the severe impairments of 4 degenerative disc disease of the cervical and lumbar spine, right knee 5 osteoarthritis, partial tear of right Achilles’ tendon, and right wrist sprain. Id. 6 At step three, the ALJ found plaintiff’s impairments, whether individually or 7 in combination, did not meet or medically equal one of the listed impairments set 8 forth in 20 C.F.R. part 404, Subpart P, Appendix 1 (the “Listings”). Id. at 37. 9 The ALJ then assessed plaintiff’s residual functional capacity (“RFC”),1 and 10 determined that from July 21, 2013 through November 9, 2014, he had the RFC to 11 perform a range of medium work, with the limitations that he could: lift and carry 12 50 pounds occasionally and 25 pounds frequently; sit for six hours; stand for six 13 hours; walk for six hours; push and pull 50 pounds occasionally and 25 pounds 14 frequently; operate foot controls with the right foot occasionally; climb ramps, 15 stairs, ladders, ropes, or scaffolds occasionally; and stoop, kneel, crouch, or crawl 16 occasionally. Id. at 38. The ALJ determined that beginning in November 9, 2014, 17 plaintiff required further restrictions. Id. Plaintiff then had the RFC to perform a 18 range of light work with the same limitations as before except he could only lift 19 and carry 20 pounds occasionally and 10 pounds frequently, and push and pull 20 20 pounds occasionally and 10 pounds frequently. Id. 21 The ALJ found, at step four, that from July 21, 2013 through November 9, 22 2014, plaintiff could perform his past relevant work as a stock clerk as actually 23 24 1 Residual functional capacity is what a claimant can do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan,

, 1155- 26 56 n.5-7 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the 27 claimant’s residual functional capacity.” Massachi v. Astrue,

, 1151 28 n.2 (9th Cir. 2007). 1 performed and sales attendant as generally and actually performed. Id. at 41. The 2 ALJ also found that starting from November 9, 2014, plaintiff could perform his 3 past relevant work as a sales attendant as generally and actually performed. Id. at 4 41-42. Consequently, the ALJ concluded plaintiff did not suffer from a disability 5 as defined by the Social Security Act. Id. at 42. 6 Plaintiff filed a timely request for review of the ALJ’s decision, which was 7 denied by the Appeals Council. Id. at 1-4. The ALJ’s decision stands as the final 8 decision of the Commissioner. 9 III. 10 STANDARD OF REVIEW 11 This court is empowered to review decisions by the Commissioner to deny 12 benefits.

(g). The findings and decision of the Social Security 13 Administration must be upheld if they are free of legal error and supported by 14 substantial evidence. Mayes v. Massanari,

(9th Cir. 2001) 15 (as amended). But if the court determines that the ALJ’s findings are based on 16 legal error or are not supported by substantial evidence in the record, the court may 17 reject the findings and set aside the decision to deny benefits. Aukland v. 18 Massanari,

(9th Cir. 2001); Tonapetyan v. Halter,

1144, 1147 (9th Cir. 2001). 20 “Substantial evidence is more than a mere scintilla, but less than a 21 preponderance.” Aukland,

. Substantial evidence is such 22 “relevant evidence which a reasonable person might accept as adequate to support 23 a conclusion.” Reddick v. Chater,

(9th Cir. 1998); Mayes, 276 24 F.3d at 459. To determine whether substantial evidence supports the ALJ’s 25 finding, the reviewing court must review the administrative record as a whole, 26 “weighing both the evidence that supports and the evidence that detracts from the 27 ALJ’s conclusion.” Mayes,

. The ALJ’s decision “‘cannot be 28 1 affirmed simply by isolating a specific quantum of supporting evidence.’” 2 Aukland,

(quoting Sousa v. Callahan,

(9th 3 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 4 the ALJ’s decision, the reviewing court “‘may not substitute its judgment for that 5 of the ALJ.’”

(quoting Matney v. Sullivan,

(9th Cir. 6 1992)). 7 IV. 8 DISCUSSION 9 A. The ALJ Posed a Complete Hypothetical 10 Plaintiff contends the ALJ failed to posed a proper hypothetical to the 11 vocational expert (“VE”). P. Mem. at 6-8. Specifically, plaintiff argues the ALJ 12 failed to incorporate the limitation to standing or walking for six hours in an eight- 13 hour workday in his hypothetical. See

14 A hypothetical posed to a vocational expert must include all of the 15 claimant’s limitations and restrictions that the ALJ found credible and supported 16 by substantial evidence in the record. Magallanes v. Bowen,

, 756-57 17 (9th Cir. 1989); Embrey v. Bowen,

(9th Cir. 1988). “‘If a 18 vocational expert’s hypothetical does not reflect all the claimant’s limitations, then 19 the expert’s testimony has no evidentiary value to support a finding that the 20 claimant can perform jobs in the national economy.’” See Hill v. Astrue,

(9th Cir. 2012) (quoting Matthews v. Shalala,

(9th 22 Cir. 1993) (internal quotation marks and citation omitted)); Edlund v. Massanari, 23

(9th Cir. 2001) (same and citing additional authority). 24 In his RFC determination for both periods, the ALJ limited plaintiff to 25 standing or walking for six hours in an eight-hour workday. AR at 38. 26 Nevertheless, when the ALJ posed his first hypothetical to the VE, he only stated it 27 was for medium work and did not specifically include the standing or walking 28 1 limitations. See id. at 261-62. By definition, a full range of medium work involves 2 lifting no more than 50 pounds occasionally, lifting or carrying no more than 25 3 pounds occasionally, and standing or walking up to approximately six hours in an 4 eight-hour workday. 20 C.F.R. 404.1567(c)2; Social Security Ruling (“SSR”) 83- 5 10.3 As such, the ALJ’s reference to medium work in his hypothetical sufficiently 6 captures the standing and walking limitations. See Bailey v. Astrue,

1233459, at *6 (C.D. Cal. Mar. 22, 2010) (because “medium work by definition 8 require[s] standing or walking approximately six hours of an eight hour day,” the 9 ALJ’s hypothetical, which only referred to medium work but not the standing or 10 walking limitations, was proper); see also Doyle v. Berryhill,

, at 11 *10 (D. Vt. May, 31, 2017) (limiting hypothetical to medium work without 12 specifying standing and walking limitations was adequate because the plaintiff’s 13 limitations fell within the definition of medium work); Hillard v. Colvin,

292861, at *5 (M.D. Ala. Jan. 27, 2014) (“medium work” includes limitations for 15 standing and walking); but see Brasfield v. Astrue,

, at *4 (M.D. 16 Fla. Sept. 7, 2012) (hypothetical referring to medium work without standing and 17 walking limitations was ambiguous). 18 To the extent the ALJ’s hypothetical was ambiguous, the error was harmless. 19 When the vocational expert responded to the ALJ’s hypothetical, he testified that 20 plaintiff could perform the job of stock clerk as performed. AR at 262. At the 21 22 2 All citations to the Code of Federal Regulations refer to regulations applicable to claims filed before March 27, 2017. 23 24 3 “The Commissioner issues Social Security Rulings to clarify the Act's implementing regulations and the agency’s policies. SSRs are binding on all 25 components of the SSA. SSRs do not have the force of law. However, because 26 they represent the Commissioner’s interpretation of the agency’s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with 27 the statute or regulations.” Holohan v. Massanari,

, 1203 n.1 (9th 28 Cir. 2001) (internal citations omitted). 1 hearing, plaintiff testified that he stood for approximately six out of eight hours 2 when he was a stock clerk. Id. at 238. It is a reasonable assumption the vocational 3 expert based his testimony on plaintiff’s own testimony as to how he performed his 4 job. Although plaintiff now contends he stood for eight hours as documented in 5 his work history report, a closer look at the report calls into question the reliability 6 of plaintiff’s responses. First, plaintiff stated he stood eight hours in a ten-hour 7 workday. See id. at 387. Second, plaintiff also reported that, in addition to the 8 eight hours of standing, he, among other things: crouched for six hours; climbed 9 for thirty minutes; stooped for most of his shift; handled, grabbed, or grasped big 10 objects for eight hours; reached for eight hours; and wrote, typed, or handled small 11 objects for two hours. See id. Plaintiff’s reported figures exceed what can be 12 physically accomplished in a normal eight-hour or even ten-hour workday. Thus, 13 although plaintiff earlier claimed to have stood for eight hours, given the 14 questionable work history report numbers, it was reasonable for the vocational 15 expert to rely on plaintiff’s hearing testimony. 16 Accordingly, the ALJ posed a complete hypothetical to the vocational 17 expert. The hypothetical adequately included all of plaintiff’s limitations. 18 B. The ALJ Properly Classified Plaintiff’s Greeter Job as Past Relevant 19 Work 20 Plaintiff argues the ALJ erred when he classified his job as greeter/sales 21 attendant as past relevant work. P. Mem. at 8-11. Specifically, plaintiff contends 22 his two-month position as a greeter was an unsuccessful work attempt based on a 23 temporary work accommodation. Id. 24 Plaintiff worked at Walmart as a stock clerk from July 2007 through July 25 2013, when he was laid off. AR at 107, 442, 673. On March 24, 2010, plaintiff 26 suffered an injury at work, which necessitated a right knee partial medial 27 meniscectomy with chondroplasty in August 2010 and right ankle arthroscopic 28 1 surgery in May 2011.4 See id. at 711, 716. Plaintiff initially continued to work 2 with accommodations but was later categorized as temporarily totally disabled 3 following his ankle surgery. See id. at 104-11, 699, 713. In November 2011, 4 plaintiff’s physicians reclassified him as able to return to work on modified duty. 5 Id. at 697. A few months later, in January 2012, plaintiff’s physicians stated he 6 was able to work with no restrictions. Id. at 695. Although plaintiff testified he 7 worked as a greeter at Walmart for a few months after his injury before returning 8 to the position of stock clerk, he never specified the exact dates. Based on his 9 testimony and the medical records, plaintiff presumably worked as a greeter from 10 November 2011 through January 2012. 11 “Past relevant work is work that you have done within the past 15 years, that 12 was substantial gainful activity, and that lasted long enough for you to learn to do 13 it.”

(b)(1). A job is considered past relevant work only if it 14 constitutes substantial gainful activity.

; Lewis v. Astrue, 236

(9th Cir. 2001). Although to qualify as substantial gainful activity a 16 plaintiff typically has to work at the job for a significant period of time (generally 17 more than three months), this does not mean that past work that lasted for less than 18 three months can never constitute past relevant work. See

404.1574(a)(1); SSR 84-25. A job must have lasted long enough for the plaintiff 20 to have learned to do it.

(a). 21 Plaintiff does not dispute that his job as greeter constituted substantial 22 gainful activity. See P. Mem. at 8-9. In particular, plaintiff does not argue the 23 24 4 At the hearing, plaintiff testified his right knee “went out” in July 2013, 25 rendering him unable to work. See AR at 224. Plaintiff stated that worker’s 26 compensation paid for his knee and ankle surgeries. See

. Plaintiff’s date was inaccurate. The medical records reflect plaintiff suffered the injury in 27 March 2010 and the surgeries were performed in 2010 and 2011. See

, 28 716. 1 two-month duration was too short to constitute substantial gainful activity or that 2 he did not meet the earnings threshold. The question is whether his past work as 3 greeter constitutes past relevant work. 4 Plaintiff contends his job as a greeter was not past relevant work because the 5 regulations state if a claimant works less than six months and stops due to the 6 removal of the accommodations that allowed him to work, such job is an 7 unsuccessful work attempt. See P. Mem at 9 (citing

(c)(3)). 8 Plaintiff misconstrues the regulations. 9 The regulations refer to the inability of a claimant to work a specific job 10 once accommodations that enable him to work it are removed. See 20 C.F.R. 11 § 404.1574(c)(3) (“We will consider work of 6 months or less to be an 12 unsuccessful work attempt if you stopped working or you reduced your work and 13 earnings below the substantial gainful activity earnings level because of your 14 impairment or because of the removal of special conditions that took into account 15 your impairment and permitted you to work.”). Plaintiff here did not require 16 accommodations in order to perform the job of greeter. Rather, the job of greeter 17 itself was an accommodation to allow him to continue working while recovering 18 from his injuries. Once plaintiff had recovered, his employer moved him back to 19 his initial job of stock clerk, which required a higher exertional level than greeter. 20 In other words, plaintiff was functionally able to work both jobs of greeter and 21 stock clerk after the two months. As such, plaintiff’s duration as a greeter was not 22 an unsuccessful work attempt pursuant to

(c)(3). 23 Because plaintiff’s job as a greeter/sales attendant was not an unsuccessful 24 work attempt, the question then is whether the ALJ’s determination that the job 25 was past relevant work and plaintiff could perform this job was supported by 26 substantial evidence. In order to determine whether a claimant’s prior work 27 constitutes past relevant work and claimant can perform the past relevant work, an 28 1 || ALJ may rely on the Dictionary of Occupational Titles (“DOT”), plaintiff's 2 || testimony, and a vocational expert’s testimony.

(b)(2). 3 Here, the DOT indicates the specific vocational preparation (“SVP”’) for the 4 || job of sales attendant is level two, which means a person holding that job can learn 5 |] the skills within a month. DOT 299.677-010; see, e.g., Tancayo v. Astrue, 2010 6 | WL 1172203, at *5-*6 (C.D. Cal. Mar. 23, 2010) (ALJ’s conclusion that the three 7 || to four months plaintiff worked as an office clerk constituted past relevant work 8 || was supported by substantial evidence because the DOT described the job as one 9 || that could be learned in three months and the VE testified it was past relevant 10 | work); cf. Castillo v. Colvin,

, at *10 (C.D. Cal. Sept. 19, 2016) 11 || (plaintiff's two months as a receptionist did not constitute past relevant work 12 || because the SVP indicated the job required three to six months to learn). 13 || Plaintiff's two months as a greeter/sales attendant meets the DOT duration 14 || requirement. Moreover, the VE testified plaintiff's job of greeter constituted past 15 relevant work and a hypothetical person with plaintiff's RFC could perform the 16 || job. 17 In short, the ALJ’s determination that plaintiffs job as greeter/sales 18 || attendant constituted past relevant work was supported by substantial evidence.

CONCLUSION 21 IT IS THEREFORE ORDERED that Judgment shall be entered 22 || AFFIRMING the decision of the Commissioner denying benefits, and dismissing 23 | the complaint with prejudice. 24 25 | DATED: January 31, 2020 LRP 26 27 United States Magistrate Judge 28 10