Bertha Campos v. Commissioner of Social Security Administration, No. 2:2009cv06213 - Document 16 (C.D. Cal. 2010)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal: IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. (dhl)
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Bertha Campos v. Commissioner of Social Security Administration Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 BERTHA CAMPOS, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 09-06213 SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Bertha Campos (“Plaintiff”) brings this action seeking to overturn 22 the decision of the Commissioner of the Social Security Administration 23 (hereinafter 24 applications for Disability Insurance Benefits (“DIB”) and Supplemental 25 Security Income (“SSI”). 26 § 27 Magistrate Judge. 28 Agency is AFFIRMED. 636(c), to the the “Commissioner” or the “Agency”) denying her The parties consented, pursuant to 28 U.S.C. jurisdiction of the undersigned United States For the reasons stated below, the decision of the Dockets.Justia.com 1 II. 2 PROCEDURAL HISTORY 3 4 On July 17, 2007, Plaintiff filed applications for DIB and SSI. 5 (Administrative Record (“AR”) 83, 93). 6 onset date of September 7, 2005, due to carpal tunnel and tendonitis of 7 both wrists. 8 October 5, 2007. 9 “prototype” case, the first level of appeal was a hearing before an (AR 83, 91, 114). (AR 20). Plaintiff alleged a disability The Agency denied both applications on Because this case had been designated as a 10 administrative law judge. 11 requested a hearing, (AR 82), which was held before Administrative Law 12 Judge (“ALJ”) Richard A. Urbin on September 9, 2008. 13 September 29, 2008, the ALJ issued an unfavorable decision. 14 On 15 decision, (AR 4), which the Appeals Council denied on July 23, 2009. 16 (AR 1). November 10, 2008, (Id.). Plaintiff On November 7, 2007, Plaintiff requested review of (AR 38). the On (AR 21). hearing Plaintiff filed the instant Complaint on September 8, 2009. 17 18 III. 19 FACTUAL BACKGROUND 20 21 Plaintiff was born on May 1, 1947, (AR 110), and speaks only 22 Spanish. (AR 113). Prior to her alleged disability onset date, 23 Plaintiff worked as an assembler and a housekeeper. (AR 115, 121, 129). 24 Plaintiff reports that on February 25, 2005, she began to notice a 25 gradual onset of pain to both wrists throughout the workday as a result 26 of the repetitive use of her hands. 27 as an assembler and was responsible for operating a machine that created 28 parts for water sprinklers. (Id.). 2 (AR 211). Plaintiff was working Plaintiff reported her symptoms to 1 her employer on March 3, 2005, and began seeking treatment later that 2 same day. (Id.). 3 4 A. Plaintiff’s Medical History 5 6 From March 3, 2005 until June 30, 2005, Plaintiff sought treatment 7 for wrist pain at the Foothill Industrial Medical Clinic. (AR 158, 174- 8 75). 9 while working on a machine. On March 3, 2005, Plaintiff reported that she injured both wrists (AR 175). On March 9, 2005, Plaintiff 10 reported swelling and tenderness in her wrists as well as numbness in 11 her hands. 12 Plaintiff’s wrists, dispensed medication, and recommended physical 13 therapy. 14 to work the same day, but must avoid excessive use of her hands and wear 15 a splint. 16 seek treatment for three to four weeks and should not lift, push, or 17 pull over ten pounds. (AR 172). (AR 192). (Id.). Also on March 9, 2005, Dr. Syed Saquib1 examined Dr. Saquib concluded that Plaintiff could return Dr. Saquib further concluded that Plaintiff should (Id.). 18 19 On March 22, 2005, Plaintiff reported that her condition was “about 20 the same” as before. (AR 170). On April 22, 2005, Plaintiff again 21 reported that her condition was “[e]ssentially [the] same.” 22 On June 30, 2005, Plaintiff reported swelling and pain in her wrists. 23 (AR 158). (AR 167). 24 25 26 27 1 28 192). Dr. Saquib’s name is handwritten and difficult to read. 3 (AR 1 The individual treatment notes from the Foothill Industrial Medical 2 Clinic are difficult to read. (AR 158-75). However, Dr. Dennis 3 Ainbinder (“Dr. Ainbinder”) summarized Plaintiff’s treatment at the 4 Foothill Industrial Medical Center in a January 2, 2007 report as 5 follows: 6 7 [Plaintiff] Center sought where initial she was treatment examined at 8 Medical 9 Pachachi, M.D., who diagnosed sprain/strain, wrist; carpal X-rays were taken. by Foothill[] A-Hafudh Al- 10 tunnel syndrome. A cock-up splint was 11 dispensed. 12 therapy was recommended. 13 modified duties, consisting of limited use of the hands, no 14 lifting, pushing or pulling over ten pounds and use of the 15 splints. Medication was prescribed. A course of physical The patient was to return to 16 17 [Plaintiff] continued treatment with Foothill[] Medical 18 Center through 19 physical 20 symptomatology. 21 recommended. June therapy, 2005, which consisting did not of medication significantly help and her A referr[al] to a hand specialist was also She continued working modified duties. 22 23 (AR 211). 24 25 On May 11, 2005, Dr. Fares Elghazi performed an electrodiagnostic 26 medicine evaluation on Plaintiff which included a nerve conduction 27 study. (AR 176-77). Dr. Elghazi concluded that Plaintiff’s test 28 4 1 results were consistent with the presence of mild carpal tunnel syndrome 2 on the right side with no denervation signs. (AR 181). 3 4 In July of 2005, Plaintiff sought treatment at U.S. HealthWorks 5 Medical Group. (AR 193). On July 13, 2005, Dr. Rafael Chavez diagnosed 6 Plaintiff with bilateral hand/wrist tendonitis. 7 determined that Plaintiff could return to work the same day as long as 8 she limited the use of her hands and did not lift, pull, or push more 9 than ten pounds. (Id.). Dr. Chavez (Id.). 10 11 On July 16, 2005, Plaintiff reached a workers’ compensation 12 settlement with her employer regarding her alleged wrist injuries. 13 238). 14 award, and $12,000 of that award was paid directly to Plaintiff. 15 238, 240). (AR Plaintiff’s employer agreed to pay Plaintiff $16,000.00 as an (AR 16 17 In September of 2005, Plaintiff sought treatment at the 18 Occupational Orthopedic Medical Group. (AR 194). On September 7, 2005, 19 Dr. Robert Reisch diagnosed Plaintiff with forearm/wrist tendonitis and 20 concluded that Plaintiff’s condition was “improving.” 21 Reisch 22 limitations.” instructed Plaintiff to “return to work at (Id.). once with Dr. no (Id.). 23 24 On December 27, 2005, Dr. Gary Tanner, a chiropractor, submitted 25 a Primary Treating Physician’s Progress Report in which he diagnosed 26 Plaintiff with carpal tunnel syndrome. 27 2006, Dr. Tanner submitted a Primary Treating Physician’s Progress 28 Report in which he reported the same diagnosis. 5 (AR 266). Again on March 21, (AR 265). Finally, on 1 March 28, 2006, Dr. Tanner submitted a Primary Treating Physician’s 2 Progress Report in which he reported the same diagnosis. (AR 264). 3 4 B. Examining Medical Sources 5 6 On November 7, 2006, Dr. Ainbinder conducted an orthopedic 7 evaluation of Plaintiff’s wrists as an “Agreed Medical Examiner” in 8 connection with her worker’s compensation appeal. 9 Ainbinder reported that Plaintiff was taking only Advil for pain and no Dr. 10 other medications. 11 M. 12 extremities on December 14, 2006 and that the results were “within 13 normal limits.” 14 overuse syndrome/tendinitis of both wrists, (id.), and found that 15 Plaintiff had lost twenty percent of her preinjury capacity for gripping 16 with both upper extremities. 17 the “diagnostic studies [were] within normal limits and not compatible 18 with carpal tunnel syndrome.” Katakia (AR 249). (AR 246). performed Dr. Ainbinder further reported that Dr. neurological (AR 252). studies on Plaintiff’s upper Dr. Ainbinder diagnosed Plaintiff with (AR 251). Dr. Ainbinder concluded that (AR 252). 19 20 Dr. Ainbinder summarized his findings as follows: 21 22 For all intents and purposes, [Plaintiff’s] symptoms 23 have plateaued and she can be considered as having reached 24 maximal 25 stationary. 26 permanent and stationary by the beginning of October 2005. 27 The treatment that was provided by Dr. Reisch was medically 28 appropriate and reasonable. All subsequent treatment was not medical improvement The patient (MMI) should 6 and have is permanent been and considered 1 medically warranted or reasonable. The patient was capable 2 of working modified duties during the period of receiving 3 treatment. 4 5 (AR 253) (emphasis in original). 6 Plaintiff 7 Vocational Rehabilitation purposes.” did not appear to Finally, Dr. Ainbinder concluded that be a “Qualified Injured Worker for (AR 254). 8 9 On September 11, 2007, Dr. Zaven Bilezikjian conducted an 10 examination of Plaintiff at the request of the Agency. 11 Dr. Bilezikjian diagnosed Plaintiff with “[r]epetitive motion injury, 12 both wrists, hands and forearms with tendonitis and early carpal tunnel 13 syndrome, bilaterally.” 14 as having the following limitations: (AR 276). (AR 273, 277). Dr. Bilezikjian assessed Plaintiff 15 16 Based on today’s examination, it is the examiner’s 17 opinion from an orthopaedic standpoint that the claimant is 18 able to push, pull, lift, and carry 20 pounds occasionally 19 and 10 pounds frequently. 20 six hours in an [eight]-hour day with normal breaks. 21 assistive 22 activities, i.e. bending, kneeling, stooping, crawling, and 23 crouching can be done on a frequent basis. 24 walking on uneven terrain, climbing ladders, or working at 25 heights can be done without restrictions. device is Walking and standing can be done required 26 27 28 7 for ambulation. No Postural Agility, i.e. Use of the hands 1 for fine manipulation can be done on a frequent basis and 2 gross manipulation can be done on a frequent basis. 3 4 (AR 276-77). 5 6 Dr. Bilezikjian’s finding that Plaintiff could use her hands for 7 fine manipulation on a frequent basis was not his initial finding. 8 279). 9 hands for fine manipulation on an occasional basis. (AR Indeed, Dr. Bilezikjian initially limited Plaintiff to using her (Id.). However, 10 Dr. L. C. Limos, a state agency physician, contacted Dr. Bilezikjian and 11 asked him to reconsider his finding. 12 objective medical evidence supported a finding that Plaintiff could use 13 her hands for fine manipulation on a frequent basis and that Plaintiff 14 was “not fully credible.” 15 was not taking any medication for pain and was not using any splints or 16 braces. (Id.). Dr. Limos further noted that there was “no atrophy” and 17 “only some tenderness.” 18 that Plaintiff drives her grandchildren to and from school, drives ten 19 miles, does minor sweeping, uses a broom, does a few dishes, and 20 straightens the bedroom. 21 his finding regarding Plaintiff’s ability to use her hands for fine 22 manipulation from occasional to frequent. (Id.). (Id.). (Id.). Dr. Limos argued that the Dr. Limos pointed out that Plaintiff Finally, Dr. Limos pointed to the fact (Id.). Ultimately, Dr. Bilezikjian amended (AR 277, 279). 23 24 C. Vocational Expert’s Testimony 25 26 27 At the hearing before the ALJ, Vocational Expert (“VE”) Jane Hale testified without objection by Plaintiff’s attorney. 28 8 (AR 58). The VE 1 testified that she had reviewed the vocational exhibits in the file, (AR 2 59), and described Plaintiff vocationally: 3 4 I identify three separate occupations. The first one 5 would be small parts assembler, DOT 739.687-030, considered 6 light, unskilled work, SVP two. 7 apartment would most closely match that of a day worker, DOT 8 301.687.014, which is medium, unskilled work, SVP two. 9 the third job working in the resorts would be a motel 10 cleaner, DOT 323.687-014 and that is light, unskilled work, 11 SVP two. The second job in the And 12 13 (AR 60). 14 15 The ALJ then asked the VE to consider whether Plaintiff could 16 perform any of her past relevant work given the hypothetical limitations 17 that she could lift twenty pounds occasionally, ten pounds frequently, 18 stand and/or walk six hours, and perform fine and gross manipulation 19 frequently. 20 limitations, Plaintiff could perform her past relevant work as a motel 21 cleaner. 22 to perform her past work as an assembler given the hypothetical 23 limitations 24 activity. (AR 60-61). (AR 61). because The VE testified that given this set of The VE explained that Plaintiff would not be able that job requires continuous hand and finger (Id.). 25 26 Plaintiff’s attorney then asked the VE to consider whether 27 Plaintiff could perform any of her past relevant work given the 28 hypothetical limitations that she could lift fifteen pounds and use her 9 1 hands for fifteen to twenty minutes, but then would have to rest her 2 hands for twenty to twenty-five minutes. 3 that given this set of limitations, Plaintiff would not be capable of 4 performing any of her past relevant work. (AR 61). The VE testified (Id.). 5 6 Finally, Plaintiff’s attorney asked the VE to consider whether 7 Plaintiff could perform any of her past relevant work given the 8 hypothetical limitations that she could lift fifteen pounds and use her 9 hands for thirty minutes, but then would have to rest her hands for ten 10 minutes. (AR 61). The VE testified that given this set of limitations, 11 Plaintiff would not be capable of performing any of her past relevant 12 work. (AR 62). 13 14 D. Plaintiff’s Testimony 15 16 In her daily activities questionnaire, Plaintiff reports that she 17 lives in a house with her family. 18 is unable to assist in normal home cleaning activities because of the 19 pain in her wrists. 20 cannot wash dishes, cook for long periods of time, or chop fruits and 21 vegetables. 22 the car and is able to drive her grandchildren to school and on errands. 23 (Id.). 24 car into the house and that she can carry fruits and vegetables from the 25 refrigerator. 26 straighten up the bedrooms, do minor sweeping, and a few dishes. (Id.). (Id.). (Id.). (AR 134). Plaintiff states that she For example, Plaintiff states that she Plaintiff states that she only walks to and from Plaintiff states that she can carry minimal groceries from the (AR 135). Plaintiff further states that she can 27 28 10 1 At the hearing before the ALJ, Plaintiff appeared with counsel and 2 testified through a Spanish language interpreter. (AR 40). 3 explained that during her last job as an assembler, she worked eight- 4 hour days and could stand or sit at her option. 5 stated that the heaviest weight she was required to lift or carry as an 6 assembler was somewhere between eight and fifteen pounds. (AR 45) (“10, 7 8, maybe 15 pounds maximum.”). 8 prior job as a housekeeper, she worked eight-hour days and either stood 9 or walked for six hours. (AR 44-45). Plaintiff Plaintiff Plaintiff explained that during her (AR 46). Plaintiff stated that she did not 10 have to carry heavy weights, but was required to push a cart containing 11 supplies that weighed fifteen to twenty pounds at most. 12 pounds would be the most.”). (Id.) (“20, 15 13 14 Plaintiff testified that she stopped working in 2005 because her 15 daughter became sick with cancer. (AR 49). 16 she took care of her daughter “[d]ay and night.” 17 estimated that she took care of her daughter for approximately eight or 18 nine months before attempting to return to work. 19 stated that she attempted to return to her prior employer as an 20 assembler, but that they did not have a position for her. 21 Plaintiff further stated that she could not return to her job as an 22 assembler because of her wrist injury. (Id.). Plaintiff explained that 23 she takes Advil and Tylenol for her pain. 24 that with the help of her medication, she can sometimes use her arms and 25 hands for longer than fifteen to twenty minutes. 26 (“Sometimes, yes; sometimes, no.”). 27 uses exercise and massage to help reduce the symptoms in her arms and 28 11 Plaintiff explained that (Id.). (Id.). (AR 51). Plaintiff Plaintiff (AR 50). Plaintiff stated (AR 51-52); (AR 52) Plaintiff explained that she also 1 hands. (AR 52). Plaintiff stated that afer she stopped working, she 2 had physical therapy for about five months. (Id.). 3 4 When asked if she had sought medical treatment for the swelling in 5 her arms, Plaintiff testified that her doctor told her nothing was wrong 6 with her. 7 nothing wrong.”). 8 doctors, Plaintiff testified that she did not seek out additional 9 treatment because she could not afford to. (See AR 51) (“[T]he doctor told me that I’m fine and I’ve got When asked if she sought treatment from other (See AR 52). Plaintiff 10 stated that she did not seek free treatment from county medical 11 facilities because she was ignorant of these options. 12 However, Plaintiff also stated that she obtained $12,000 from her 13 worker’s compensation settlement, but did not use the money to obtain 14 medical treatment. 15 money “trying to help [her] son get ahead, have success.” 16 Plaintiff 17 compensation settlement to travel to Cancun and to straighten out some 18 paperwork for her husband in Mexico. 19 some paperwork for my husband and his land in Mexico, and going to 20 Cancun.”). further (See AR 54). explained (See AR 53). Plaintiff explained that she used the that she used some of the (Id.). worker’s (See AR 56) (“To straighten out 21 22 IV. 23 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 24 25 To qualify for disability benefits, a claimant must demonstrate a 26 medically determinable physical or mental impairment that prevents him 27 28 12 1 from engaging in substantial gainful activity2 and that is expected to 2 result in death or to last for a continuous period of at least twelve 3 months. 4 42 U.S.C. § 423(d)(1)(A)). 5 incapable of performing the work he previously performed and incapable 6 of performing any other substantial gainful employment that exists in 7 the national economy. 8 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing The impairment must render the claimant Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 9 10 11 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. § 416.920. The steps are: 12 13 (1) Is the claimant presently engaged in substantial gainful 14 activity? 15 If not, proceed to step two. 16 (2) Is the If so, the claimant is found not disabled. claimant’s impairment 17 claimant is found not disabled. 18 three. 19 (3) Does the claimant’s severe? If not, the If so, proceed to step impairment meet or equal the 20 requirements of any impairment listed at 20 C.F.R. Part 21 404, Subpart P, Appendix 1? 22 found disabled. 23 (4) If so, the claimant is If not, proceed to step four. Is the claimant capable of performing his past work? 24 so, the claimant is found not disabled. 25 to step five. If If not, proceed 26 2 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay 28 or profit. 20 C.F.R. § 416.910. 27 13 1 (5) Is the claimant able to do any other work? 2 claimant is found disabled. 3 found not disabled. If not, the If so, the claimant is 4 5 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 6 949, 953-54 (9th Cir. 2001); 20 C.F.R. § 416.920(b)-(g)(1). 7 8 9 The claimant has the burden of proof at steps one through four and the Commissioner has the burden of proof at step five. Bustamante, 262 10 F.3d at 953-54. If, at step four, the claimant meets his burden of 11 establishing an inability to perform the past work, the Commissioner 12 must show that the claimant can perform some other work that exists in 13 “significant numbers” in the national economy, taking into account the 14 claimant’s residual functional capacity,3 age, education, and work 15 experience. 16 Commissioner may do so by the testimony of a VE or by reference to the 17 Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart 18 P, Appendix 2 (commonly known as “the Grids”). 19 F.3d 1157, 1162 (9th Cir. 2001). 20 (strength-related) 21 inapplicable and the ALJ must take the testimony of a vocational expert. 22 Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000). Tackett, 180 F.3d at 1100; 20 C.F.R. § 416.920(g)(1). and The Osenbrock v. Apfel, 240 When a claimant has both exertional nonexertional limitations, the Grids are 23 24 25 26 Residual functional capacity is “the most [one] can still do despite [his] limitations” and represents an assessment “based on all 28 the relevant evidence.” 20 C.F.R. § 416.945(a). 27 3 14 1 V. 2 THE ALJ’S DECISION 3 4 The ALJ employed the five-step sequential evaluation process and 5 concluded that Plaintiff was not disabled within the meaning of the 6 Social Security Act. 7 Plaintiff 8 September 7, 2005. 9 suffered had from not the (AR 28). engaged in (AR 22). At step one, the ALJ found that substantial gainful activity since At step two, he found that Plaintiff medically-determinable conditions of overuse 10 syndrome/tendonitis in both wrists, with MRI evidence of post traumatic 11 intra-articular changes in the radial carpal joints bilaterally. (Id.). 12 At step three, the ALJ found that the impairments at step two did not 13 meet or medically equal a listed impairment. (AR 23). 14 15 At step four, the ALJ found that Plaintiff was capable of 16 performing her past relevant work. (AR 27). Based on his review of the 17 record, the ALJ concluded that the Plaintiff had the residual functional 18 capacity to “lift and carry twenty pounds occasionally and ten pounds 19 frequently, stand and/or walk for six out of eight hours, and sit for 20 six hours in an eight-hour workday.” 21 noted that Plaintiff could “frequently climb, balance, stoop, kneel, 22 crouch, and crawl.” 23 “frequently perform fine and gross manipulation.” (Id.). He found that 24 even if Plaintiff were limited to occasional fine manipulation, she 25 could perform the duties of a motel cleaner or day worker. 26 Thus, the ALJ concluded that Plaintiff “has not been under a disability, 27 as defined in the Social Security Act, at any time from September 7, 28 2005 through the date of this decision.” (Id.). (AR 23). Additionally, the ALJ The ALJ found that Plaintiff could 15 (AR 28). (AR 28). 1 VI. 2 STANDARD OF REVIEW 3 4 Under 42 U.S.C. § 405(g), a district court may review the 5 Commissioner’s decision to deny benefits. The court may set aside the 6 Commissioner’s decision when the ALJ’s findings are based on legal error 7 or are not supported by substantial evidence in the record as a whole. 8 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 9 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 10 11 “Substantial evidence is more than a scintilla, but less than a 12 preponderance.” 13 which a reasonable person 14 conclusion.” 15 a finding, the court must “‘consider the record as a whole, weighing 16 both 17 [Commissioner’s] conclusion.’” Aukland, 257 F.3d at 1035 (quoting Penny 18 v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 19 reasonably support either affirming or reversing that conclusion, the 20 court may not substitute its judgment for that of the Commissioner. 21 Reddick, 157 F.3d at 720-21. evidence Reddick, 157 F.3d at 720. Id. It is “relevant evidence might accept as adequate to support a To determine whether substantial evidence supports that supports and evidence 22 23 24 25 26 27 28 16 that detracts from the If the evidence can 1 VII. 2 DISCUSSION4 3 4 Plaintiff claims that the ALJ erred for four reasons. First, 5 Plaintiff contends that the ALJ failed to properly consider the opinion 6 of the Agreed Medical Examiner, Dr. Ainbinder. 7 Support of Plaintiff’s Complaint (“Complaint Memo.”) at 2-4). 8 Plaintiff contends that the ALJ’s RFC determination is not supported by 9 substantial evidence because the ALJ improperly relied on the opinion (See Memorandum in Second, 10 of the consultative examiner, Dr. Bilezikjian. 11 Third, Plaintiff contends that the ALJ failed to properly consider 12 Plaintiff’s subjective symptom testimony. 13 Plaintiff contends that the ALJ failed to properly consider the VE’s 14 testimony. 15 Court disagrees with each of Plaintiff’s contentions. (See id. at 10-12). (See id. at 4-6). (See id. at 6-10). Fourth, For the reasons discussed below, this 16 17 18 A. The ALJ Gave Appropriate Weight To The Agreed Medical Examiner’s Opinion 19 20 Plaintiff’s first claim is that the ALJ failed to properly consider 21 the opinion of the Agreed Medical Examiner, Dr. Ainbinder. 22 Complaint Memo. at 2-4). 23 improperly rejected Dr. Ainbinder’s limitation that Plaintiff could only 24 use her upper extremities for thirty minutes followed by a ten minute 25 break. 26 improperly rejected Dr. Ainbinder’s limitation that Plaintiff could only (See id. at 2). (See Specifically, Plaintiff argues that the ALJ Plaintiff further argues that the ALJ 27 4 The Court will address Plaintiff’s claims in a different order 28 than presented in the Complaint. 17 1 lift fifteen pounds. (See Reply Memorandum in Support of Plaintiff’s 2 Complaint (“Reply”) at 2). This Court disagrees. 3 4 1. As An Examining Physician, The Agreed Medical Examiner’s 5 Opinion Was Entitled To No More Weight Than That Of A 6 Consultative Physician 7 8 9 Dr. Ainbinder was an examining physician whose contact Plaintiff was analogous to that of a consultative physician. with (AR 246, 10 253-54). Indeed, Dr. Ainbinder examined Plaintiff on November 7, 2006, 11 (AR 223), and noted that “[n]o further appointments [were] scheduled.” 12 (AR 232). 13 regulations 14 psychologist, or other acceptable medical source who has examined [the 15 claimant] but does not have, or did not have, an ongoing treatment 16 relationship with [the claimant].” 17 “includes an acceptable medical source who is a consultative examiner 18 for [the Agency], when the consultative examiner is not [the claimant’s] 19 treating source.” Examining physicians are nontreating sources. define a “nontreating source” to mean Implementing “a 20 C.F.R. § 404.1502. physician, This term Id. 20 21 Dr. Ainbinder was not Plaintiff’s treating source and examined 22 Plaintiff only “in the capacity of an Agreed Medical Examiner.” 23 223). 24 of limited value because he only examined Plaintiff once. 25 for disability benefits, a claimant must demonstrate a medically- 26 determinable physical or mental impairment that prevents her from 27 engaging in substantial gainful activity and that is expected to result 28 in death or to last for a continuous period of at least twelve months. Thus, he was only an examining source. 18 (AR Further, his opinion was To qualify 1 See Reddick, 157 F.3d at 721. Because Dr. Ainbinder only examined 2 Plaintiff once, it would be difficult for him to evaluate whether her 3 alleged impairment would be expected to result in death or to last for 4 at least twelve months. 5 to Dr. Ainbinder’s opinion. Thus, the ALJ was entitled to give less weight 6 7 2. The ALJ Gave Specific And Legitimate Reasons For Giving Less Weight To The Agreed Medical Examiner’s Opinion 8 9 10 The uncontradicted opinion of a consultative examiner can only be 11 rejected for “clear and convincing” reasons. Lester v. Chater, 81 F.3d 12 821, 830 (9th Cir., as amended April 9, 1996). 13 consultative examiner’s opinion is contradicted by another doctor, the 14 ALJ can reject this opinion by providing “specific and legitimate 15 reasons that are supported by substantial evidence in the record.” 16 at 830-31. However, where a Id. 17 18 Here, Dr. Ainbinder’s opinion was contradicted by the opinion of 19 Dr. Bilezikjian, the consultative orthopedist. Indeed, Dr. Bilezikjian 20 reviewed Dr. Ainbinder’s records in forming his opinion, (AR 273), but 21 ultimately assessed Plaintiff as having less restrictive limitations. 22 (AR 277). 23 to push, pull, lift and carry twenty pounds occasionally and ten pounds 24 frequently, walk and stand for six hours out of an eight-hour work day, 25 frequently bend, kneel, stoop, crawl and crouch and frequently perform 26 gross manipulation and fine fingering. 27 Bilezikjian’s 28 Plaintiff could only use her upper extremities for thirty minutes Dr. Bilezikjian determined that Plaintiff retained the RFC opinion contradicted 19 Dr. (AR 276-77). Ainbinder’s Thus, Dr. findings that 1 followed by a ten minute break and that Plaintiff could only lift 2 fifteen pounds. 3 Dr. Ainbinder’s opinion by providing specific and legitimate reasons. 4 See Lester, 81 F.3d at 830-31. (AR 254). Accordingly, the ALJ was entitled to reject 5 6 The ALJ provided specific and legitimate reasons for giving less 7 weight to Dr. Ainbinder’s opinion. 8 finding that Plaintiff could only use her upper extremities for thirty 9 minutes followed by a ten minute break, the ALJ specifically declined 10 to adopt this limitation “because Dr. Ainbinder himself did not believe 11 that this was a disabling limitation.” 12 ALJ, Dr. Ainbinder “stated that the claimant ‘does not appear to be a 13 Qualified Injured Worker for Vocational Rehabilitation purposes.’” 14 (Id.) (quoting AR 254). 15 Ainbinder’s opinion because “Dr. Ainbinder was specifically indicating 16 that [Plaintiff] had a disabling condition that imposed the specific 17 limitations provided.” 18 Dr. Ainbinder’s opinion was ambiguous and may have been misconstrued by 19 the ALJ is a specific and legitimate reason for giving it less weight. 20 See 20 C.F.R. § 404.1527(d)(3) (“The better an explanation a source 21 provides for an opinion, the more weight we will give that opinion.”); 22 20 C.F.R. § 416.927(d)(3)(same); see also Johnson v. Shalala, 60 F.3d 23 1428, 24 determinations 25 evidence.”). 1434 (9th of Cir. an With regard to Dr. Ainbinder’s (AR 27). As explained by the Plaintiff argues that the ALJ misconstrued Dr. (Complaint Memo. at 2). 1995) ALJ (“We based will on not However, the fact that reverse contradictory or credibility ambiguous 26 27 With regard to Dr. Ainbinder’s finding that Plaintiff could only 28 lift fifteen pounds, the ALJ pointed out that “Dr. Ainbinder did not 20 1 assess a specific residual functional capacity, but instead recommended 2 a Functional Capacity Evaluation.” 3 Indeed, Plaintiff concedes in her Reply that “Dr. Ain[b]inder was 4 equivocal in his opinion because he wanted a functional capacity 5 evaluation.” 6 Ainbinder’s opinion was ambiguous or equivocal is a specific and 7 legitimate 8 404.1527(d)(3), 416.927(d)(3); see also Johnson, 60 F.3d at 1434 (“We 9 will 10 not (Reply at 4). reason reverse for (AR 26) (citing AR 217, 231). As noted above, the fact that Dr. giving it credibility less weight. determinations See of an 20 ALJ C.F.R. based §§ on contradictory or ambiguous evidence.”). 11 12 Moreover, even if the ALJ failed to provide specific and legitimate 13 reasons for giving less weight to Dr. Ainbinder’s opinion, any error was 14 harmless because substantial evidence supports the ALJ’s ultimate RFC 15 determination. 16 1155, 1162 (9th Cir. 2008) (holding that an ALJ’s error is harmless so 17 long as substantial evidence supports the ultimate conclusion). Indeed, 18 the ALJ specifically credited the opinion of Dr. Bilezikjian, which 19 contradicted the limitations assessed by Dr. Ainbinder. (See AR 27) (“I 20 accept the opinion of the consultative orthopedist, which opinion was 21 based on 22 [Plaintiff], and a review of her subjective symptoms.”). 23 further noted that the State Agency physician, Dr. Limos, adopted the 24 opinion 25 Ainbinder. 26 was adopted by the State Agency Medical consultant.”); (AR 26) (“A State 27 Agency medical consultant determined that [Plaintiff] can lift and carry 28 20 pounds occasionally and 10 pounds frequently, stand and/or walk for See Carmickle v. Comm’r of Social Sec. Admin., 533 F.3d a review of Dr. Ainbinder’s records, an examination of of Dr. Bilezikjian and contradicted the opinion The ALJ of Dr. (See AR 27) (“And the consultative orthopedists’s opinion 21 1 six out of eight hours, and sit for six hours in an eight-hour 2 workday.”). 3 4 Accordingly, the opinions of Dr. Bilezikjian and Dr. Limos provide 5 substantial evidence to support the ALJ’s ultimate RFC. 6 conflicts in the medical evidence is solely within the province of the 7 ALJ, and the ALJ was entitled to rely on the opinions of Dr. Bilezkjian 8 and Dr. Limos instead of Dr. Ainbinder. See Andrews v. Shalala, 53 F.3d 9 1035, 1041 (9th Cir. 1995) (explaining that it is solely the province 10 Resolving of the ALJ to resolve conflicts in the medical evidence). 11 12 In sum, the Court concludes that the ALJ appropriately weighed Dr. 13 Ainbinder’s opinion as that of an examining physician and gave specific 14 and legitimate reasons for giving the opinion less weight. 15 any error was harmless because the opinions of Dr. Bilezikjian and Dr. 16 Limos provide substantial evidence to support the ALJ’s ultimate RFC. 17 Accordingly, remand is not required. Regardless, 18 19 B. The ALJ Provided Clear And Convincing Reasons To Reject Plaintiff’s Subjective Symptom Testimony 20 21 22 Plaintiff’s third claim is that the ALJ failed to properly consider 23 Plaintiff’s subjective symptom testimony. 24 10). 25 rejecting her credibility were improper. 26 further argues that objective medical evidence in the record supports 27 her subjective symptom testimony. 28 disagrees. Specifically, Plaintiff argues 22 (See Complaint Memo. at 6- that the ALJ’s reasons (See id. at 7-10). (See Reply at 9). for Plaintiff This Court 1 2 To determine whether a claimant’s testimony regarding subjective 3 pain or symptoms is credible, an ALJ must engage in a two-step analysis. 4 First, the ALJ must determine whether the claimant has presented 5 objective medical evidence of an underlying impairment “which could 6 reasonably be expected to produce the pain or other symptoms alleged.” 7 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (internal 8 quotation marks omitted). 9 her impairment could reasonably be expected to cause the severity of the 10 symptom she has alleged; she need only show that it could reasonably 11 have caused some degree of the symptom.” 12 meets this first test, and there is no evidence of malingering, “the ALJ 13 can reject the claimant’s testimony about the severity of her symptoms 14 only by offering specific, clear and convincing reasons for doing so.” 15 Smolen, 80 F.3d at 1281. The claimant, however, “need not show that Id. Second, if the claimant 16 17 Here, the ALJ found that Plaintiff’s medically determinable 18 impairments could reasonably be expected to produce the symptoms she 19 alleged, but that her statements concerning the intensity, persistence 20 and limiting effects of those symptoms were not entirely credible. 21 24). 22 evidence of malingering, the ALJ was required to provide clear and 23 convincing 24 testimony. See Smolen, 80 F.3d at 1281. 25 ALJ 26 Plaintiff’s subjective symptom testimony. (AR Because Plaintiff satisfied the first test and there was no reasons provided for numerous rejecting clear and Plaintiff’s 28 23 symptom The Court concludes that the convincing 27 subjective reasons for rejecting 1 First, the ALJ noted that Plaintiff’s failure to seek medical 2 treatment was inconsistent with her subjective symptom testimony. 3 AR 24); see also Johnson, 60 F.3d at 1434 (9th Cir. 1995) (holding that 4 the plaintiff’s failure to seek medical treatment was a clear and 5 convincing 6 Specifically, 7 [Plaintiff] because she did not keep appointments.” 8 211). 9 assertion” in the record. reason the to ALJ reject her pointed subjective out that “Dr. symptom (See testimony). Reisch discharged (Id.) (citing AR Plaintiff states that she “can find no reference for this (Complaint Memo. at 7-8). However, Dr. 10 Ainbinder reported that “[Plaintiff] was subsequently discharged by Dr. 11 Reisch 12 appointments.” (AR 212). The ALJ further noted that Plaintiff “did not 13 seek other care until she saw the Agreed Medical Examiner, Dr. Dennis 14 Ainbinder, in January 2007.” 15 seek medical treatment is a clear and convincing reason to reject 16 Plaintiff’s subjective symptom testimony. 17 F.3d 748, 750 (9th Cir. 1995) (“An ALJ is clearly allowed to consider 18 . . . the unexplained absence of treatment for excessive pain.”); 19 Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) (“Another 20 relevant factor may be unexplained, or inadequately explained, failure 21 to seek treatment or follow a prescribed course of treatment.” (internal 22 quotation marks omitted)). for lack of compliance to (AR 25). present for her scheduled Thus, Plaintiff’s failure to See Orteza v. Shalala, 50 23 24 Plaintiff contends that her failure to seek medical treatment is 25 not a permissible basis to discount her testimony because “she could not 26 afford treatment.” (Complaint Memo. at 7). However, Plaintiff admitted 27 that she obtained $12,000 from her worker’s compensation settlement, yet 28 did not use any of the money to obtain medical treatment. 24 (See AR 54). 1 Plaintiff explained that she used the money “trying to help [her] son 2 get ahead, have success.” 3 used some of the worker’s compensation settlement to travel to Cancun 4 and to straighten out some paperwork for her husband in Mexico. 5 AR 56) (“To straighten out some paperwork for my husband and his land 6 in Mexico, and going to Cancun.”). 7 failing to seek medical treatment, a lack of funds, is contradicted by 8 the record. (Id.). Plaintiff further explained that she (See Plaintiff’s stated reason for 9 10 Second, the ALJ noted that Plaintiff’s use of only over-the-counter 11 medication was inconsistent with her subjective symptom testimony. (See 12 AR 25); see also Tommasetti v. Astrue, 533 F.3d 1035, 1039-40 (9th Cir. 13 2008) (holding that the plaintiff’s conservative treatment was a clear 14 and convincing reason to reject her subjective symptom testimony); 15 accord Johnson, 60 F.3d at 1434. 16 takes only Tylenol and Advil. 17 “no doctor ha[d] prescribed medication for [her] arms or hands.” (Id.). 18 Additionally, Plaintiff reported in her Disability Report that she does 19 not currently take any medication. 20 extremely conservative treatment is a clear and convincing reason to 21 reject her subjective symptom testimony. Indeed, Plaintiff testified that she (See AR 51). Plaintiff explained that (See AR 118). Thus, Plaintiff’s 22 23 Plaintiff again argues that “[t]his is not a proper basis because 24 she already explained that she could not afford treatment.” (Reply at 25 8). 26 $12,000 from her worker’s compensation settlement, yet did not use any 27 of the money to obtain medical treatment. 28 Plaintiff testified that the over-the-counter medication was effective As set forth above, however, Plaintiff admitted that she obtained 25 (See AR 54). Moreover, 1 to treat her symptoms. (See AR 55) (“I think they’re strong. . . . 2 They relax me.”). Thus, Plaintiff cannot claim that she only used over- 3 the-counter medication because of a lack of financial means. 4 5 Third, the ALJ noted that Plaintiff “inconsistently described the 6 reasons she stopped working.” (AR 26). Indeed, Plaintiff reported to 7 Dr. Bilezikjian that she stopped working on September 7, 2005 because 8 of wrist pain and numbness in her forearm and hands. 9 However, Plaintiff testified that she stopped working in 2005 for eight 10 or nine months because her daughter was ill. 11 asserts 12 (Complaint Memo. at 8). 13 of her Request for Review to the Appeals Council in which she stated she 14 was “nervous at the hearing” and meant to testify that she stopped 15 working to care for her daughter in June of 2003. 16 also submitted a letter from Stephen J. Forman, M.D., a staff physician 17 at City of Hope, in which he states that Plaintiff’s daughter became ill 18 in June of 2003. that this inconsistency was due to (AR 49). (AR 273). a Plaintiff now “misunderstanding.” Plaintiff submitted a declaration in support (AR 13). Plaintiff (AR 14). 19 20 However, even if Dr. Forman’s letter explains Plaintiff’s 21 inconsistent testimony regarding why she stopped working, the letter 22 directly 23 symptoms. 24 for her daughter from June of 2003 to July of 2006, including helping 25 “her manage with all aspects of daily living activities and also 26 help[ing] her get to her appointments.” 27 Plaintiff was capable of providing her daughter with this level of care 28 is inconsistent with Plaintiff’s statements of disabling pain. contradicts Plaintiff’s testimony about her subjective Indeed, Dr. Forman states that Plaintiff provided total care 26 (AR 14). The fact that See 1 Tommasetti, 533 F.3d at 1040 (holding that the plaintiff’s ability to 2 care for his ailing sister for “an extended time” was a clear and 3 convincing reason to reject his subjective symptom testimony). 4 5 Finally, the ALJ repeatedly noted that the medical evidence 6 contradicted Plaintiff’s subjective symptom testimony. (See AR 24-26). 7 Specifically, 8 identifies as her disability onset date, an orthopedic specialist and 9 treating physician, Dr. Robert Reisch, told her to ‘return to work at the ALJ pointed out that on “the day [Plaintiff] 10 once with no limitations.’” 11 September 7, 2005, Dr. Reisch concluded that Plaintiff’s status had 12 “improved as expected,” that Plaintiff’s “forearm/writs tendonitis [was] 13 improving,” and that Plaintiff could return to “full duty.” 14 The ALJ further pointed out that Plaintiff had “full motor power in her 15 writs flexors and extensors” and “there [was] no atrophy.” 16 (citing AR 215). 17 assessed Plaintiff as having full motor power without any atrophy, (AR 18 215), found that Plaintiff was “capable of working modified duties,” and 19 concluded 20 reasonable.” that (AR 24) (quoting AR 208). Indeed, on (AR 208). (AR 25) Indeed, in his January 2, 2007 report, Dr. Ainbinder further treatment “was not medically warranted or (AR 216). 21 22 Additionally, the ALJ noted that when Plaintiff sought medical 23 treatment, one of the “doctors told her that nothing [was] wrong.” (AR 24 24) (citing Plaintiff’s testimony). 25 she sought medical treatment for the swelling in her arms, but that “the 26 doctor told [her] that [she was] fine and [that she had] nothing wrong.” 27 (AR 51). 28 Plaintiff’s claims is a clear and convincing reason to reject her Indeed, Plaintiff testified that Thus, the fact that the medical evidence contradicted 27 1 subjective symptom testimony. See Johnson, 60 F.3d at 1434 (holding 2 that “contradictions between claimant’s testimony and the relevant 3 medical evidence” provided clear and convincing reasons to reject her 4 subjective symptoms testimony). 5 6 In sum, the ALJ cited numerous clear and convincing reasons to 7 reject Plaintiff’s subjective symptom testimony. Accordingly, the ALJ 8 was entitled to reject Plaintiff’s testimony regarding the intensity, 9 persistence, and limiting effects of her symptoms. 10 11 C. The ALJ Properly Assessed Plaintiff’s Residual Functional Capacity 12 13 Plaintiff’s second claim is that the ALJ’s RFC determination is not 14 supported by substantial evidence because the ALJ improperly relied on 15 the opinion of the consultative examiner, Dr. Bilezikjian. 16 Complaint Memo. at 4-6). 17 Bilezikjian’s opinion cannot provide substantial evidence for the RFC 18 determination because Dr. Bilezikjian amended his opinion regarding 19 Plaintiff’s ability to perform fine manipulation. 20 Reply at 5-6). (See Specifically, Plaintiff argues that Dr. (See id. at 4-5; The Court disagrees. 21 22 Residual functional capacity is defined as what the plaintiff can 23 still do despite existing exertional and nonexertional limitations. See 24 Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 25 Security Ruling 96-8p provides in relevant part: “RFC is an assessment 26 of an individual’s ability to do sustained work-related physical and 27 mental activities in a work setting on a regular and continuing basis.” 28 SSR 96-8p, 1996 WL 374184, at *1 (SSA July 2, 1996). At Step Five, “[a] 28 Social 1 regular and continuing basis means 8 hours a day, for 5 days a week, or 2 an equivalent work schedule.” 3 “In determining residual functional capacity, the ALJ must consider 4 subjective symptoms such as fatigue and pain.” Smolen, 80 F.3d at 1291. Id. (internal quotation marks omitted). 5 6 Here, the ALJ found that Plaintiff had the RFC to “lift and carry 7 20 pounds occasionally and 10 pounds frequently, stand and/or walk for 8 six out of eight hours, and sit for six hours in an eight-hour workday.” 9 (AR 23). The ALJ further found that Plaintiff could “frequently climb, 10 balance, stoop, kneel, crouch and crawl” and could “frequently perform 11 fine and gross manipulation.” (Id.). In making this determination, the 12 ALJ considered Plaintiff’s credibility and the medical evidence, both 13 discussed above. (See AR 23-26). 14 15 Plaintiff contends that her RFC should be limited to only 16 “occasional” fine manipulation instead of “frequent.” (Complaint Memo. 17 at 4). 18 initially assessed her as only being capable of “occasional” fine 19 manipulation. 20 contacted Dr. Bilezikjian and asked him to reconsider this finding. 21 (Id.). 22 a finding that Plaintiff could use her hands for fine manipulation on 23 a frequent basis and that Plaintiff was “not fully credible.” 24 Dr. Limos pointed out that Plaintiff was not taking any medication for 25 pain and was not using any splints or braces. (Id.). Dr. Limos further 26 noted that there was “no atrophy” and “only some tenderness.” 27 Finally, Dr. Limos pointed to the fact that Plaintiff drives her 28 grandchildren to and from school, drives ten miles, does minor sweeping, Plaintiff’s argument is based on the fact that Dr. Bilezikjian (AR 279). Indeed, Dr. Limos, a state agency physician, Dr. Limos argued that the objective medical evidence supported 29 (Id.). (Id.). 1 uses a broom, does a few dishes, and straightens the bedroom. (Id.). 2 Ultimately, Dr. Bilezikjian amended his finding regarding Plaintiff’s 3 ability to use her hands for fine manipulation from “occasional” to 4 “frequent.” (AR 277). 5 6 Plaintiff argues that Dr. Bilezikjian’s amendment was improper 7 because he did not provide any explanation for the change. 8 Complaint Memo. at 4). 9 several 10 persuasive assessment. (See As set forth above, however, Dr. Limos provided reasons for Dr. Bilezikjian to reconsider his (See AR 279). 11 12 Moreover, the ALJ concluded that “even if [he] decided that 13 [Plaintiff] [could] only occasionally perform fine manipulation, [the] 14 decision would not change.” 15 is not the point” because “remand is warranted for proper consideration 16 of reliable evidence when formulating an RFC.” (Reply at 6). 17 even if the ALJ erred by finding that Plaintiff could perform frequent 18 fine manipulation, no remand is required as long as the ALJ’s ultimate 19 conclusion regarding disability remains legally valid. 20 533 F.3d at 1162-63 (holding that no remand is required as long as the 21 ALJ’s ultimate disability determination remains legally valid). (AR 26). Plaintiff contends that “[t]his However, See Carmickle, 22 23 Here, any error is harmless because the ALJ’s ultimate finding of 24 non-disability remains legally valid, regardless of whether Plaintiff 25 could perform fine manipulation frequently or occasionally. Indeed, the 26 ALJ found that “even if [Plaintiff] were limited to occasional fine 27 manipulation, she could perform the duties of a Motel Cleaner, as 28 actually performed and as generally performed.” (AR 28). The ALJ noted 30 1 that “the Dictionary of Occupational Titles states that this job 2 requires only occasional fine manipulation.” 3 323.687-014, 1991 WL 672783 (stating that the job of motel cleaner 4 requires “[f]ingering” only “[o]ccasionally”). 5 rely 6 Plaintiff could perform her past relevant work as a motel cleaner. 7 20 8 administrative notice of reliable job information from the Dictionary 9 of Occupational Titles). on the C.F.R. § Dictionary of 404.1566(d)(1) Occupational (stating (Id.); see also DOT The ALJ was entitled to Titles that to the determine Agency that will See take 10 11 In sum, the ALJ properly relied on Dr. Bilezikjian’s amended 12 opinion to find that Plaintiff could perform frequent fine manipulation 13 because 14 Bilezikjian to reconsider his initial assessment. Regardless, any error 15 was harmless because the ALJ expressly found that Plaintiff could 16 perform her past relevant work even if she could only perform occasional 17 fine manipulation. Dr. Limos provided several persuasive reasons for Dr. Accordingly, remand is not required. 18 19 D. The ALJ Properly Considered The VE’s Testimony 20 21 Plaintiff’s fourth claim is that the ALJ failed to properly 22 consider the VE’s testimony. 23 Specifically, Plaintiff contends that the ALJ erroneously rejected the 24 VE’s testimony that the occupation of day worker constituted medium 25 work. (See id. at 11). (See Complaint Memo. at 10-12). This Court disagrees. 26 27 28 At the hearing, the VE testified that Plaintiff’s past relevant work included the following three 31 occupations: (1) “small parts 1 assembler, DOT 739.687-030, considered light, unskilled work, SVP two”; 2 (2) “day worker, DOT 301.687.014, which is medium, unskilled work, SVP 3 two”; and (3) “motel cleaner, DOT 323.687-014 and that is light, 4 unskilled work, SVP two.” 5 whether Plaintiff could perform any of her past relevant work given the 6 hypothetical limitations that she could lift twenty pounds occasionally, 7 ten pounds frequently, stand and/or walk six hours, and perform fine and 8 gross manipulation frequently. 9 given this set of limitations, Plaintiff could perform her past relevant 10 work as a motel cleaner, but could not perform the occupations of either 11 small parts assembler or day worker. (AR 60). The ALJ asked the VE to consider (See AR 60-61). The VE testified that (AR 61). 12 13 The ALJ acknowledged the VE’s testimony that Plaintiff could not 14 perform her past relevant work as a day worker because “the occupation 15 of Day Worker is medium work,” but concluded that Plaintiff “[could] 16 perform the occupation of Day Worker as she actually performed it.” (AR 17 27-28). 18 occasional 19 Occupational Titles.” (AR 28); see also DOT 301.687-014, 1991 WL 672654 20 (stating 21 “[o]ccasionally”). Social Security Ruling 00-4p states that “[n]either 22 the DOT nor the VE . . . automatically ‘trumps’ when there is a 23 conflict.” 24 elicit a reasonable explanation from the VE for any conflict before 25 relying on the VE instead of the Dictionary of Occupational Titles. Id. 26 In the absence of such explanation for relying on the VE, Social 27 Security Ruling 00-4p states that “we rely primarily on the DOT.” 28 see also 20 C.F.R. § 404.1566(d)(1) (stating that the Agency will take The ALJ noted that “the job of Day Worker requires only fine that the manipulation” job of day according worker to requires SSR 00-4p, 2000 WL 1898704, at *2. 32 the Dictionary “[f]ingering” of only Rather, the ALJ must Id.; 1 administrative notice of reliable job information from the Dictionary 2 of Occupational Titles). 3 Dictionary of Occupational Titles to find that Plaintiff could perform 4 her past relevant work as a day worker. Thus, the ALJ was entitled to rely on the 5 6 Regardless, any error was harmless because the ALJ also found that 7 Plaintiff could perform her past relevant work as a motel cleaner. (See 8 AR 28); see also Carmickle, 533 F.3d at 1162-63 (holding that no remand 9 is required as long as the ALJ’s ultimate disability determination 10 remains legally valid). 11 she could perform her past relevant work as a motel cleaner is not 12 supported 13 Bilezikjian’s opinion. 14 set forth above, however, the ALJ was entitled to rely on the opinion 15 of Dr. Bilezikjian. by Plaintiff argues that the ALJ’s finding that substantial evidence because the ALJ relied on (See Complaint Memo. at 12; Reply at 10). Dr. As See supra Part VII.C. 16 17 In sum, the ALJ was entitled to rely on the Dictionary of 18 Occupational Titles to conclude that Plaintiff could perform her past 19 relevant work as a day worker. 20 because the ALJ also found that Plaintiff could perform her past 21 relevant work as a motel cleaner. Accordingly, the Court concludes that 22 Plaintiff has not met her burden of proof to demonstrate that she cannot 23 return to her past relevant work. See Matthews v. Shalala, 10 F.3d 678, 24 681 (9th Cir. 1993) (holding that the claimant has the burden of proof 25 to demonstrate that they cannot perform past relevant work). Regardless, any error was harmless 26 27 28 33 1 2 VIII. 3 CONCLUSION 4 5 Consistent with the foregoing, and pursuant to sentence four of 42 6 U.S.C. § 405(g),8 IT IS ORDERED that judgment be entered AFFIRMING the 7 decision of the Commissioner and dismissing this action with prejudice. 8 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this 9 Order and the Judgment on counsel for both parties. 10 11 DATED: September 21, 2010 12 ________/S/____________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 8 This sentence provides: “The [district] court shall have power 27 to enter, upon the pleadings and transcript of the record, a judgment 28 affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 34
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