Hoopai v. Astrue

• Decision Date: 27 August 2007
• Docket Number: No. 05-16128.,05-16128.
• Citation: 499 F.3d 1071
• Parties: Oren D. HOOPAI, Plaintiff-Appellant, v. Michael J. ASTRUE,<SMALL><SUP>*</SUP></SMALL> Commissioner, Social Security Administrator, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

499 F.3d 1071

Oren D. HOOPAI, Plaintiff-Appellant, v. Michael J. ASTRUE,^* Commissioner, Social Security Administrator, Defendant-Appellee.

No. 05-16128.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 19, 2007.

Filed August 27, 2007.

Harvey P. Sackett of San Jose, CA, briefed and argued for the appellants.

Sarah Ryan, Asst. Regional Counsel, Social Security Admin., San Franciso, CA, briefed and argued, Peter D. Keisler of San Francisco, CA, for the appellee.

Appeal from the United States District Court for the District of Hawaii; David A. Ezra, District Judge, Presiding. D.C. No. CV-04-00076-DAE.

Before: D.W. NELSON and CONSUELO M. CALLAHAN, Circuit Judges, and CORMAC J. CARNEY,^** District Judge.

D.W. NELSON, Senior Circuit Judge:

Oren D. Hoopai ("Hoopai") appeals the district court's summary judgment order upholding the Commissioner of Social Security's denial of his application for disability insurance benefits under Title II of the Social Security Act. Hoopai's alleged disability was based on back pain and depression. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Hoopai is a 50-year-old man with an eleventh grade education and work history as a construction laborer, heavy equipment operator, and truck driver. He asserts that back pain and mental impairments from an on-the-job injury have caused him to be permanently and completely disabled. The Administrative Law Judge ("ALJ") followed the five-stage procedure for evaluating disability claims set forth in 20 C.F.R. § 404.1520. The ALJ held that Hoopai established a prima facie case of disability, that he was not able to perform any of his past relevant "heavy" work, and that he was limited to "light work." However, the ALJ found under step five that there was a significant number of jobs that Hoopai could perform that were consistent with his age, education, work experience and residual capacity to do light work. The ALJ concluded that Hoopai's condition was not a "disability," as defined in the Social Security Act.

The Social Security Appeals Council denied Hoopai's request to review the ALJ's decision. Hoopai appealed to the district court, in which he argued: (1) the ALJ erred in step five of the evaluation process by not seeking the testimony of a vocational expert to determine the range of work permitted by the claimant's exertional limitations in light of his allegedly severe non-exertional limitation of depression, (2) the ALJ failed to make findings, as required by case law, as to the degree of limitations in each of the functional areas delineated in 20 C.F.R. § 404.1520a-i.e., activities of daily living; social functioning; concentration, persistence or pace; and episodes of decompensation; and (3) the ALJ erred in not identifying the specific number of purported alternate jobs that existed in the economy that could be performed by Hoopai and in failing to identify the sources that supported his conclusions. The district court found that the ALJ's decision was supported by substantial evidence and was free of legal error. We agree.

II. STANDARD OF REVIEW

A district court's order upholding the Commissioner's denial of benefits is reviewed de novo. See Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir.2004). The decision of the Commissioner must be affirmed if it is supported by substantial evidence and the Commissioner applied the correct legal standards. See Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003). Substantial evidence is relevant evidence, considering the entire record, which a reasonable person might accept as adequate to support a conclusion. See Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999).

III. DISCUSSION

The Social Security Regulations establish a five-step sequential evaluation process for determining whether a claimant is disabled. See 20 C.F.R. § 404.1520. A claimant must be found disabled if she proves: "(1) that she is not presently engaged in a substantial gainful activity; (2) that her disability is severe, and (3) that her impairment meets or equals one of the specific impairments described in the regulations." Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir.2002). If the impairment does not meet or equal one of the specific impairments described in the regulations, the claimant can still establish a prima facie case of disability by proving at step four that "in addition to the first two requirements, . . . she is not able to perform any work that she has done in the past." Id. Once the claimant establishes a prima facie case, the burden of proof shifts to the agency at step five to demonstrate that "the claimant can perform a significant number of other jobs in the national economy." Id. This step-five determination is made on the basis of four factors: the claimant's residual functional capacity, age, work experience and education.

To assist in the step-five determination, the Social Security Administration established the Medical-Vocational Guidelines (the grids), which "consist of a matrix of[the four factors] and set forth rules that identify whether jobs requiring a specific combination of these factors exist in significant numbers in the national economy." Heckler v. Campbell, 461 U.S. 458, 461-62, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983). When the grids match the claimant's qualifications, "the guidelines direct a conclusion as to whether work exists that the claimant could perform." Id. at 462, 103 S.Ct. 1952. When the grids do not match the claimant's qualifications, the ALJ can either (1) use the grids as a framework and make a determination of what work exists that the claimant can perform, see Soc. Sec. Ruling 83-14, 1983 WL 31254 (S.S.A.), or (2) rely on a vocational expert when the claimant has significant non-exertional limitations. Desrosiers v. Sec'y of Health and Human Servs., 846 F.2d 573, 577 (9th Cir.1988).

The ALJ held that Hoopai had established a prima facie case of disability. In particular, Hoopai was deemed to have proven at steps one and two that he was not presently engaged in a substantial gainful activity and that medical evidence demonstrated that the combination of his low back pain and depression was severe within the meaning of the regulations. However, the ALJ held that the combined impairments did not meet or equal one of the specific impairments listed in the regulations as required under step three. At step four, the ALJ found that the claimant had demonstrated that he could not perform his past relevant work, which involved heavy lifting. Instead, Hoopai only had the residual functional capacity to perform light work. At step five, the ALJ relied on the grids as a framework and concluded that there was a significant number of jobs in the national economy that the claimant could perform. Specifically, the ALJ determined that the claimant could perform such jobs as scale operator, street cleaner, silver wrapper and basket filler.

A. Vocational Expert

The parties do not dispute the ALJ's determination at steps one through four. Instead, the dispute centers around the ALJ's step-five determination. Hoopai argues that the ALJ erred at step five by assuming the role of the vocational expert and determining what alternative work he believed the claimant could perform, without invoking vocational expert testimony. He asserts that his depression was a significant non-exertional limitation and therefore the ALJ was required, in accordance with Ninth Circuit case law, to seek the testimony of a vocational expert.

The ALJ can use the grids without vocational expert testimony when a non-exertional limitation is alleged because the grids "provide for the evaluation of claimants asserting both exertional and non-exertional limitations." Razey v. Heckler, 785 F.2d 1426, 1430 (9th Cir.1986). But the grids are inapplicable "[w]hen a claimant's non-exertional limitations are `sufficiently severe' so as to significantly limit the range of work permitted by the claimant's exertional limitations." Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir.1988). Hoopai reasons that since the ALJ determined that his depression impairment was severe at step two, then it must constitute a significant non-exertional limitation at step five such that the assistance of a vocational expert is required. This argument lacks merit.

First, at step two, the ALJ never found that Hoopai's depression impairment alone was severe. Instead, the ALJ determined that Hoopai's back pain and depression impairments were severe. But even assuming that the ALJ found that the depression impairment alone was severe, a step-two determination that a non-exertional impairment is severe does not require that the ALJ seek the assistance of a vocational expert at step five.

At step five a vocational expert's testimony is required when a non-exertional limitation is "`sufficiently severe' so as to significantly limit the range of work permitted by the claimant's exertional limitation." Id. The step two and step five determinations require different levels of severity of limitations such that the satisfaction of the requirements at step two does not automatically lead to the conclusion that the claimant has satisfied the requirements at step five.

The regulations guiding the step-two determination of whether a disability is severe is merely a threshold determination of whether the claimant is able to perform his past work. Thus, a finding that a claimant is severe at step two only raises a prima facie case of a disability. See Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999). In contrast, the step-five determination is necessary to ascertain whether there is a significant number of jobs in the national economy that the claimant can perform. The grids provide broad categories of exertional limitations (and to a certain extent non-exertional limitations) and the range of jobs in...