Alfredo Salazar, Jr v. Michael J Astrue, No. 5:2007cv00565 - Document 16 (C.D. Cal. 2008)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle. IT IS ORDERED that Judgment shall be entered affirming the decision of the Commissioner of the Social Security Administration and dismissing this case with prejudice. LET JUDGMENT BE ENTERED ACCORDINGLY. (mz)

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1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 ALFREDO SALAZAR, JR. ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the ) Social Security Administration, ) ) Defendant. ) ___________________________________) NO. EDCV 07-00565-MAN MEMORANDUM OPINION AND ORDER 17 18 19 Plaintiff filed a Complaint on May 18, 2007, seeking review of the 20 denial 21 Plaintiff s applications for disability insurance benefits ( DIB ) and 22 supplemental security income ( SSI). 23 consented to proceed before the undersigned United States Magistrate 24 Judge, pursuant to 28 U.S.C. § 636(c). 25 Stipulation on January 25, 2008, in which: 26 reversing the Commissioner s decision and directing the payment of 27 benefits or, in the alternative, remanding the matter for a new hearing; 28 and Defendant seeks an order affirming the Commissioner s decision. The by the Social Security Commissioner ( Commissioner ) of On June 18, 2007, the parties The parties filed a Joint Plaintiff seeks an order 1 Court has taken the parties Joint Stipulation under submission without 2 oral argument. 3 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 4 5 6 Plaintiff filed applications for DIB and SSI on July 23, 2004. 7 (Administrative Record ( A.R. ) 53-57, 305-09.) 8 have been disabled since July 22, 2002, due to mental disorders. 9 53, 61, 305.) 10 Plaintiff claims to (A.R. Plaintiff has past relevant work as a mixer, packer, and welder/cleaner. (A.R. 62, 69, 77.) 11 12 The Commissioner denied Plaintiff s claim for benefits initially 13 and upon reconsideration. (A.R. 35-36, 40-44, 310-11.) On November 27, 14 2006, Plaintiff, who was represented by counsel, testified at a hearing 15 before Administrative Law Judge James S. Carletti ( ALJ ). 16 312 33.) On December 13, 2006, the ALJ denied Plaintiff s claim. (A.R. 17 8-18.) 18 review of the ALJ s decision. (A.R. The Appeals Council subsequently denied Plaintiff s request for (A.R. 4-6.) 19 20 SUMMARY OF ADMINISTRATIVE DECISION 21 22 In his written decision, the ALJ found that Plaintiff met the 23 insured status requirements of the Social Security Act through September 24 30, 2004, and that Plaintiff has not engaged in substantial gainful 25 activity since July 22, 2002, the alleged onset date. (A.R. 13.) The 26 ALJ impairment of 27 schizophrenia, paranoid type. 28 Plaintiff does not have an impairment or combination of impairments that determined that Plaintiff has (A.R. 14.) 2 the severe However, the ALJ found that 1 meets or medically equals one of the listed impairments in 20 C.F.R. 2 Part 404, Subpart P, Appendix 1. (Id.) 3 4 The ALJ further found that Plaintiff has the residual functional 5 capacity ( RFC ) to perform simple, repetitive tasks in a non-public 6 environment, with minimal contact with co-workers or supervisors. (A.R. 7 14-17.) 8 expert, the ALJ found that Plaintiff is capable of performing his past 9 relevant work as a packer and palletizer, a mixer and packer, and a Based on this RFC assessment and the testimony of a vocational 10 welder 11 Plaintiff is not disabled. helper. (A.R. 17.) Accordingly, the ALJ concluded that (A.R. 17.) 12 13 STANDARD OF REVIEW 14 15 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 16 decision to determine whether it is free from legal error and supported 17 by substantial evidence in the record as a whole. 18 F.3d 625, 630 (9th Cir. 2007). 19 evidence as a reasonable mind might accept as adequate to support a 20 conclusion. 21 a mere scintilla but not necessarily a preponderance. 22 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003)(citation omitted). 23 inferences from the record can constitute substantial evidence, only 24 those reasonably drawn from the record will suffice. 25 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006)(citation omitted). Orn v. Astrue, 495 Substantial evidence is such relevant Id. (citation omitted). The evidence must be more than Connett v. While Widmark v. 26 27 Although this Court cannot substitute its discretion for that of 28 the Commissioner, the Court nonetheless must review the record as a 3 1 whole, weighing both the evidence that supports and the evidence that 2 detracts from the [Commissioner s] conclusion. 3 Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 4 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 5 responsible for determining credibility, resolving conflicts in medical 6 testimony, and for resolving ambiguities. 7 1035, 1039-40 (9th Cir. 1995). Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 8 9 The Court will uphold the Commissioner s decision when the evidence 10 is susceptible to more than one rational interpretation. Burch v. 11 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 12 review only the reasons stated by the ALJ in his decision and may not 13 affirm the ALJ on a ground upon which he did not rely. 14 at 630; see also Connett, 340 F.3d at 874. 15 the Commissioner s decision if it is based on harmless error, which 16 exists only when it is clear from the record that an ALJ s error was 17 inconsequential to the ultimate nondisability determination. Robbins 18 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 19 Comm r, 454 F.3d 1050, 1055-56 (9th Cir. 2006)); see also Burch, 400 20 F.3d at 679. However, the Court may Orn, 495 F.3d The Court will not reverse 21 22 DISCUSSION 23 24 Plaintiff alleges the following four issues: (1) whether the ALJ 25 properly considered the findings of Dr. H.N. Hurwitz, a state agency 26 physician, 27 properly 28 questionnaire regarding considered Plaintiff s law submitted limitations; (2) testimony, i.e., witness by Plaintiff s 4 sister; whether a (3) the third whether ALJ party the 1 hypothetical question posed to the vocational expert was complete; and 2 (4) whether the ALJ s determination that there are several jobs that can 3 be performed by Plaintiff is consistent with Plaintiff s RFC. 4 5 6 I. The ALJ Did Not Commit Error In Connection With The State Agency Physician s Findings. 7 8 On September 2, 2004, Dr. Hurwitz, a state agency psychiatrist, 9 completed a Social Security Administration mental residual functional 10 capacity assessment form for Plaintiff. 11 of the form consists of 20 items, divided into four categories of mental 12 activities 13 persistence, social interaction, and adaptation); as to these 20 items, 14 the preparer is to check the appropriate box to indicate the degree of 15 limitation found based on his or her review of the evidence in file. 16 (A.R. 187.) 17 Significantly Limited box. 18 Moderately Limited box for the following five items: 19 carry out detailed instructions; the ability to maintain attention and 20 concentration for extended periods; the ability to make simple work- 21 related decisions; the ability to interact appropriately with the 22 general public; and the ability to set realistic goals or make plans 23 independently of others. 24 Hurwitz was required to [r]ecord . . . elaborations on the preceding 25 capacities. (A.R. 189.) Despite that directive, Dr. Hurwitz made only 26 the following cryptic notation: 27 word]. (understanding and memory, (A.R. 187-89.) sustained The first part concentration and As to 15 of the items, Dr. Hurwitz checked the Not (A.R. 187-88.) (Id.) Dr. Hurwitz checked the the ability to On the third page of this form, Dr. PER 4/05[;] SEE MID__ [illegible (Id.) 28 5 1 On the same date (September 2, 2004), Dr. Hurwitz provided the 2 following Narrative Mental Residual Functional Capacity assessment for 3 Plaintiff: 4 5 A. Claimant has sufficient retained understanding and memory 6 to perform simple repetitive work tasks. 7 B. 8 simple 9 workweek. Claimant has adequate pace and persistence to sustain repetitive work tasks for a normal workday and 10 C. 11 coworkers and supervisors, but not with the public. 12 D. CL [sic] can adapt to a variety of work setting situations 13 and changes. CL [sic] can relate in a socially effective manner with 14 15 (A.R. 206.) 16 17 At the hearing before the ALJ, Dr. Sidney Bolter, a board 18 certified 19 testified as a medical expert. 20 of Plaintiff s testimony, his questioning of Plaintiff at the hearing, 21 and his review of the evidence of record (A.R. 322-27), Dr. Bolter 22 opined that: Plaintiff s concentration, persistence, and pace might be 23 as good as mild if he s in a fairly restricted environment such as a non 24 public environment with minimal contacts with peers and supervisors ; 25 and Plaintiff should be limited to simple, repetitive tasks like one- 26 two step tasks that do not require any really good memory and really 27 don t call on excellent concentration because the task is repeating 28 itself and it s pretty hard to make mistakes that way. psychiatrist and neurologist (A.R. 322.) 6 (A.R. 15), appeared and Based on his consideration (A.R. 328.) 1 In his decision, the ALJ noted Dr. Hurwitz s finding that Plaintiff 2 does not meet or equal any Listing. 3 ALJ stated that he had given great weight to the State Agency, i.e., 4 Dr. Hurwitz, as his opinion was consistent with the totality of the 5 evidence. 6 persuasive and adopted it. (A.R. 17.) (A.R. 14; see also A.R. 191.) The The ALJ further found Dr. Bolter s opinion to be (Id.) 7 8 Under the Commissioner s regulations: 9 10 Administrative law judges are not bound by any finding 11 made by State agency medical or psychological consultants, or 12 other program physicians or psychologists. 13 agency medical and psychological consultants and other program 14 physicians and psychologists are highly qualified physicians 15 and psychologists who are also experts in Social Security 16 disability evaluation. 17 must 18 psychological consultants or other program physicians or 19 psychologists as opinion evidence, except for the ultimate 20 determination about whether you are disabled. consider However, State Therefore, administrative law judges findings of State agency medical and 21 22 20 C.F.R. §§ 404.1527(f)(2)(i), 416.927(f)(2)(i). 23 24 Plaintiff contends the ALJ failed to consider the portion of Dr. 25 Hurwitz s opinion that set forth the five moderate limitations he 26 found (A.R. 187-88). 27 opinion 28 consistent with the evidence of record and included a finding that in detail, While the ALJ did not describe Dr. Hurwitz s he plainly considered 7 it, noting that it was 1 Plaintiff does not meet or equal a Listing. (A.R. 14, 17.) The ALJ, 2 however, did not explicitly discuss the portion of Dr. Hurwitz s opinion 3 set forth at A.R. 187-88, on which Plaintiff relies. 4 error warranting reversal occurred. Nonetheless, no 5 6 Plaintiff s argument selectively focuses on only a portion of Dr. 7 Hurwitz s opinion, while failing to account for his ultimate opinion. 8 Plaintiff relies exclusively on the check-the-box findings of Dr. 9 Hurwitz set forth at A.R. 187-88, and ignores Dr. Hurwitz s narrative 10 mental RFC findings, which not only are consistent with both Dr. 11 Bolter s opinion and the RFC finding made by the ALJ but, if anything, 12 are less restrictive than the limitations found by Dr. Bolter and 13 adopted by the ALJ. 14 that Plaintiff has sufficient retained understanding and memory, and 15 adequate pace and persistence, to perform simple, repetitive work tasks 16 for a normal workday and work week, should not work with the public but 17 can relate in a socially effective manner with supervisors and co- 18 workers, and is adaptable to a variety of work settings and changes. 19 (A.R. 206.) 20 restrictive (i.e., that Plaintiff should have minimal contact with 21 peers and supervisors, should be limited to one to two step tasks, and 22 no finding that Plaintiff is adaptable), and the ALJ adopted them. 23 (A.R. 14, 17, 328.) (Compare A.R. 14, 206, and 328.) Dr. Hurwitz found The limitations found by Dr. Bolter are somewhat more 24 25 The ALJ is responsible for resolving conflicts in the medical Batson v. Comm r of Soc. Sec. Admin., 359 F.3d 1190, 1195 26 evidence. 27 (9th Cir. 2004); Thomas v. Barnhart, 278 F.3d 947, 956 (9th Cir. 2002); 28 Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995). 8 To the 1 extent there was any conflict between the opinions of Dr. Hurwitz and 2 Dr. Bolter regarding Plaintiff s limitations, the ALJ resolved this 3 conflict by adopting the findings of Dr. Bolter. 4 Bolter is a board certified psychiatrist and neurologist who testified 5 about his review of the medical evidence and Plaintiff s testimony, 6 explained the bases for his findings, and based his conclusions on 7 clinical findings. 8 conclusion that Dr. Bolter s opinion was entitled to greater weight than 9 that of Dr. Hurwitz, also a board certified psychiatrist but not a 10 neurologist, who simply completed a check-the-box form, failed to 11 explain the bases for his conclusions as required, and did not clearly 12 identify which medical evidence he had reviewed. 13 76 F.3d 251, 253 (9th Cir. 1996)(the ALJ permissibly rejected three 14 psychological evaluations of the claimant that were check-off reports 15 that 16 conclusions ); Andrews, 53 F.3d at 1042 (ALJ properly relied on opinion 17 of testifying medical expert, who was a specialist in one of the areas 18 of claimed impairment and was subject to cross-examination at the 19 hearing, over that of treating physician, who was not a specialist and 20 whose opinion was defective); Matney v. Sullivan, 981 F.2d 1016, 1019 21 (9th Cir. 1992)(ALJ need not accept an opinion that is conclusory, 22 brief, and unsupported by clinical findings). did not (A.R. 15, 17.) contain any As the ALJ noted, Dr. There was no error in the ALJ s explanation of See Crane v. Shalala, the bases of their 23 24 Contrary to Plaintiff s assertion, the ALJ was not required to 25 state specific and legitimate reasons 1 for favoring Dr. Bolter s 26 27 28 1 Plaintiff mistakenly relies on case law involving the deference owed to the opinions of examining physicians. (Joint Stip. at 4.) Dr. Hurwitz, like Dr. Bolter, did not examine Plaintiff. 9 1 opinion over Dr. Hurwitz s opinion. 2 that the RFC found by the ALJ, based on Dr. Bolter s opinion, is 3 inconsistent with and/or more expansive than the moderate limitations 4 set forth by Dr. Hurwitz at A.R. 187-88, Plaintiff does not explain how 5 this is so, much less explain how any such purported inconsistency can 6 be reconciled with Dr. Hurwitz s narrative mental RFC assessment set 7 forth at A.R. 205, which plainly comports with the ALJ s RFC finding. 8 If, 9 limitations somehow require finding a more limited RFC, then the state 10 agency physician s opinion is internally inconsistent, and the ALJ was 11 entitled to favor Dr. Bolter s opinion for that reason. 12 Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001)(ALJ properly 13 rejected treating physician s finding of disability, when that finding 14 was inconsistent with the physician s other findings); Young v. Heckler, 15 803 F.2d 963, 968 (9th Cir. 1986)(same). as Plaintiff apparently To the extent Plaintiff contends contends, Dr. Hurwitz s moderate See, e.g., 16 17 18 For these reasons, the Court does not find any reversible error in the ALJ s treatment of Dr. Hurwitz s opinion. 19 20 21 II. The Hypothetical Posed To The Vocational Expert Was Appropriate. 22 23 24 At the hearing, the ALJ posed the following hypothetical question to the vocational expert ( VE ): 25 26 Assume that we have a younger individual as defined in the 27 regulations with an eleventh grade education, prior work 28 experience which you indicated ranged from light to medium as 10 1 performed and 2 limitations, but there were limitations to simple repetitive 3 tasks, 4 coworkers 5 activity be available and, if not, would there be other work 6 activity that exists either nationally or locally that could 7 be performed? no unskilled. public and contact supervisors, If and there were minimal would any no physical interaction of the prior with work 8 9 (A.R. 331.) In response, the vocational expert stated, I think that 10 the past work is performable and relative to the dealing with the 11 supervisors and the coworkers, both would be in the environment of but 12 would not be contingent on being able to complete the job tasks. 13 The ALJ then asked, Okay and all these positions assume capability of 14 sustaining 40 hours of work activity? The vocational expert responded, 15 That s correct. (Id.) (Id.) 16 17 Plaintiff contends that this hypothetical to the VE was erroneous, 18 because it failed to incorporate the five moderate limitations, 19 discussed in Section I, set forth in Dr. Hurwitz s mental residual 20 functional capacity assessment form. 21 be accurate, detailed, [and] supported by the record. 22 Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999) 23 VE does not reflect all the claimant s limitations and/or is not 24 supported 25 evidentiary value. 26 1993); Embrey v. Bowen, 849 F.2d 418, 422-23 (9th Cir. 1988); Gallant v. 27 Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984). by the evidence of A hypothetical posed to a VE must record, Tackett v. If the hypothetical to the the VE s testimony has no Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 28 11 The above-quoted hypothetical question posed to the VE accurately 1 2 set forth Plaintiff s mental RFC. (A.R. 14.) As discussed in Section 3 I, that RFC finding made by the ALJ was fully consistent with Dr. 4 Hurwitz s narrative mental RFC assessment. 5 Hurwitz expressly opined that Plaintiff can perform simple repetitive 6 tasks, in a nonpublic setting and in a socially effective manner with 7 coworkers and supervisors, for a normal workday and workweek. 8 The ALJ expressly confirmed with the VE that the positions she found to 9 be performable encompassed 40 hours of work activity, i.e., the 10 normal . . . workweek that Dr. Hurwitz opined Plaintiff was capable of 11 working. (A.R. 206, 331.) The ALJ also provided greater limitations in 12 his hypothetical to the VE than those to which Dr. Hurwitz opined, 13 namely, the ALJ omitted from the hypothetical Dr. Hurwitz s finding that 14 Plaintiff can adapt to a variety of work settings and changes, and the 15 ALJ stated that the worker could have only minimal interaction with 16 coworkers and supervisors, rather than the less limited finding by Dr. 17 Hurwitz that Plaintiff can relate in a socially effective manner with 18 coworkers and supervisors. (A.R. 206.) Indeed, Dr. (Id.) (Id.) 19 20 Moreover, the limitations set forth in the hypothetical to the VE 21 reflected the practical ramifications that flow from the various 22 moderate limitations found by Dr. Hurwitz (A.R. 187-88), just as Dr. 23 Hurwitz explained in narrative form in his mental RFC assessment (A.R. 24 206). 25 hypothetical 26 concentration, persistence, or pace limitation the ALJ had found, the 27 hypothetical s wording did encompass the concrete consequences and 28 practical ramifications of this limitation, and thus, the hypothetical See Roe v. Chater, 92 F.3d 672, 676-77 (8th Cir. 1996)(while to VE did not use 12 the specific wording of the 1 sufficiently presented the claimant s limitations to the VE). 2 hypothetical s limitation to simple, repetitive tasks necessarily 3 encompassed 4 Plaintiff s abilities to carry out detailed instructions, maintain 5 attention and concentration for extended periods, and make simple work- 6 related decisions, just as Dr. Hurwitz s narrative mental RFC assessment 7 similarly concluded that these three pace and persistence limitations 8 did not preclude Plaintiff from performing simple, repetitive work tasks 9 (A.R. 206). Dr. Hurwitz s findings of moderate limitations The in The hypothetical s limitation of no public contact 10 similarly reflected the single moderate social interaction limitation 11 found by Dr. Hurwitz, namely, with respect to Plaintiff s ability to 12 interact appropriately with the general public. 13 did not explicitly and separately note the fifth moderate limitation 14 found by Dr. Hurwitz -- namely, as to Plaintiff s ability to set 15 realistic goals or make plans independently of others -- the limitation 16 to simple, repetitive tasks would seem to reflect the practical 17 ramification of this limitation, just like Dr. Hurwitz s narrative 18 mental RFC assessment, which also does not separately mention this fifth 19 limitation. While the hypothetical 20 21 Again, to the extent Plaintiff contends that Dr. Hurwitz s check- 22 the-box moderate limitations somehow exceed those set forth in Dr. 23 Hurwitz s narrative mental RFC assessment, which was reflected in the 24 hypothetical question posed to the VE, the ALJ properly resolved any 25 such 26 assessment that was consistent with Dr. Hurwitz s narrative assessment 27 and the conclusions of Dr. Bolter, the medical expert. 28 required to include within the hypothetical additional limitations that conflict in the medical evidence 13 in favor of a mental RFC The ALJ was not 1 the ALJ had not found to be supported by the record. Matthews, 10 F.3d 2 at 681 (no error in omitting limitation from hypothetical when the ALJ 3 had found it to be inapplicable). 4 5 6 For these reasons, the Court finds no reversible error based on the hypothetical to the VE. 7 8 9 III. Plaintiff s Contention That His RFC Is Inconsistent With The Jobs Found By The ALJ Fails. 10 11 As his fourth issue, Plaintiff argues that the Level 2 reasoning 12 level applicable to the three former jobs the ALJ found Plaintiff 13 capable of performing - welder helper, palletizer, and mixer2 -- is 14 inconsistent with the RFC found by the ALJ. Plaintiff contends that the 15 moderate limitations found by Dr. Hurwitz are inconsistent with a 16 Level 2 reasoning ability, and thus, the ALJ s finding that Plaintiff s 17 RFC allows him to perform these former jobs was error. 18 19 To the extent that Plaintiff s fourth issue, like his first and 20 third issues, is based on the proposition that Dr. Hurwitz s moderate 21 22 23 24 25 26 27 28 2 As set forth in the Dictionary of Occupational Titles ( DOT ), these three positions do, as Plaintiff asserts, entail a Level 2 reasoning level. See: DICOT 819.687-014, 1991 WL 681631 (welder helper); DICOT 929.687-054, 1991 WL 688180, and DICOT 920.685-078, 1991 WL 687492 (palletizer); and DICOT 510.685-018, 1991 WL 673719, and DICOT 570.685-010, 1991 WL 683924 (mixer); see also A.R. 332 (VE identifying the DOT numbers for the jobs found). The DOT states that Level 2 reasoning requires the ability to: Apply commonsense understanding to carry out detailed but uninvolved written or oral instruction ; and Deal with problems involving a few concrete variables in or from standardized situations. U.S. Dept of Labor, DICTIONARY OF OCCUPATIONAL TITLES, 1011 (4TH Ed. 1991). 14 1 limitations are more stringent than the mental RFC found by the ALJ and 2 are controlling for purposes of the commissioner s Step Four analysis, 3 this fourth argument also fails. 4 the medical evidence and rendered a mental RFC finding that is fully 5 consistent with Dr. Hurwitz s narrative mental RFC assessment and Dr. 6 Bolter s medical expert opinion, the only relevant question for purposes 7 of the fourth issue is whether the Level 2 reasoning called for by the 8 three jobs in issue is inconsistent with the mental RFC determined by 9 the ALJ. 10 As the ALJ did not err in reconciling Under the trend of recent case law, the answer to that question is no. 11 12 Numerous courts in this District and elsewhere have rejected the 13 argument made by Plaintiff here, to wit, that a limitation to simple, 14 repetitive tasks is inconsistent with Level 2 reasoning ability and is 15 consistent, at most, with Level 1 reasoning. 16 395 F.3d 1168, 1176 (10th Cir. 2005)(finding Level 2 reasoning to be 17 consistent with a limitation to simple, routine work tasks); Meissl v. 18 Barnhart, 403 F. Supp. 2d 981, 984-85, (C.D. Cal. 2005)(finding that a 19 limitation to simple, repetitive tasks was consistent with Level 2 20 reasoning ability); Flaherty v. Halter, 182 F. Supp. 2d 824, 850 (182 F. 21 Supp. 2d 824, 850 (D. Minn. 2001)(finding that the Level 2 reasoning 22 requirement of the job in issue was consistent with a limitation to 23 simple, routine, repetitive, concrete, tangible tasks); see also Tudino 24 v. Barnhart, 2008 WL 4161443, *11 (S.D. Cal. Sept. 5, 2008)( Level-two 25 reasoning appears to be the breaking point for those individuals limited 26 to performing only simple repetitive tasks. ); Isaac v. Astrue, 2008 WL 27 2875879, *3-*4 (E.D. Cal. July 24, 2008)(following Meissl and finding 28 that a limitation to simple job instructions is consistent with Level 15 See Hackett v. Barnhart, 1 2); Charles v. Astrue, 2008 WL 4003651, *4-*5 (W.D. La. Aug. 7, 2 2008)(limitation to simple, repetitive tasks is consistent with Level 2 3 reasoning); Squier v. Astrue, 2008 WL 2537129, *5 (C.D. Cal. June 24, 4 2008)( Plaintiff s 5 inconsistent with the ability to perform jobs with a reasoning level of 6 two. ); Riggs v. Astrue, 2008 WL 1927337, *15-*20 (W.D. Wash. April 25, 7 2008)(finding a limitation to understanding, remembering, and carrying 8 out simple instructions and to making simple decisions to be consistent 9 with the Level 2 reasoning requirement of the jobs found at Step Five); 10 Jones v. Astrue, 2007 WL 5397018, *6-*7 (E.D. Pa. Oct. 15, 2007)(finding 11 no apparent inconsistency between a limitation to simple, repetitive 12 tasks and Level 2 reasoning ability). limitation to simple, repetitive tasks is not 13 14 As observed in Meissl, when there is a finding that a claimant can 15 perform simple tasks with some element of repetitiveness to them, 16 Level 1 on the DOT scale requires slightly less than this level of 17 reasoning, and while Level 2 references an ability to follow detailed 18 instructions, it qualifies and downplay[s] the rigorousness of those 19 instructions by labeling them as uninvolved. 20 2d at 984; see also Charles, 2008 WL 4003651, *5 (because of Level 2 s 21 use of the term uninvolved in conjunction with detailed, Level 2 is 22 consistent with a RFC to perform simple, routine, repetitive work 23 tasks ); Squier, 2008 WL 2537129, *5 (observing that while Level 2 uses 24 the term detailed instructions, it specifically caveats that the 25 instructions would be uninvolved -- that is, not a high level of 26 reasoning ). 27 this reasoning level does not render it inconsistent with a limitation 28 to simple, repetitive tasks. Meissl, 403 F. Suppl. Hence, the DOT s use of the term detailed in describing 16 1 Plaintiff has not pointed to any inconsistency between the Level 2 2 reasoning level requirement of the three prior jobs he performed and the 3 conclusion that he is limited to simple, repetitive tasks. 4 of prevailing authority precludes finding any such inconsistency. 5 there was no apparent inconsistency between the ALJ s mental RFC 6 determination and the Level 2 reasoning ability required for the three 7 jobs identified by the VE, there was no departure or deviation from the 8 DOT that required an explanation by the ALJ or the VE, as Plaintiff 9 contends. Accordingly, the VE s testimony provided substantial evidence 10 The weight As for the ALJ s Step Four finding, and no error occurred. 11 12 IV. 13 The ALJ Error With Respect To The Observations Of Plaintiff s Sister Does Not Warrant Reversal. 14 15 By his second issue, Plaintiff contends that the ALJ erred by 16 failing to acknowledge and discuss a Function Report Adult Third Party 17 questionnaire (the Questionnaire ) submitted by Plaintiff s sister, 18 Estarla Beltran, on August 6, 2004. 19 dispute that the ALJ s decision fails to mention the Questionnaire. (A.R. 102-10.) Defendant does not 20 21 Lay testimony as to a claimant s symptoms is competent evidence 22 that an ALJ must take into account, unless he or she expressly 23 determines to disregard such testimony and gives reasons germane to each 24 witness for doing so. 25 2001); see also Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996); 26 Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). 27 properly discount lay testimony that conflict[s] with the available 28 medical evidence (Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 17 An ALJ may 1 1984)), particularly where, as in Vincent, lay witnesses [are] making 2 medical diagnoses, because [s]uch medical diagnoses are beyond the 3 competence of lay witnesses and therefore do not constitute competent 4 evidence (Nguyen, 100 F.3d at 1467; original emphasis). When, however, 5 a lay witness testifies about a claimant s symptoms, which may affect 6 the claimant s ability to work, such testimony is competent evidence 7 and, therefore, cannot be disregarded without comment. 8 fails to discuss competent lay testimony, a reviewing court cannot find 9 harmless error unless it can confidently conclude that no reasonable 10 ALJ, when fully crediting the testimony, could have reached a different 11 disability determination. Id. When an ALJ Stout, 454 F.3d at 1056. 12 13 In the Questionnaire, Ms. Beltran states that Plaintiff sleeps 14 frequently, because his medications make him drowsy, and gets fatigued 15 easily. 16 his illness that he cannot do now, she responded, He seemed to have 17 more energy to play at times. 18 and is primary [sic] handicapped. (A.R. 103.) Ms. Beltran opined that 19 Plaintiff has sleep apnea. 20 needs reminders to brush his teeth, shower, or take his medication; 21 Plaintiff does not prepare meals because he does not know how and has a 22 hard time following instructions; Plaintiff does a number of household 23 chores but cannot do the front yard, because he gets weak and dizzy 24 and/or because he refuses to cut the grass; Plaintiff can handle money 25 but does not pay bills or handle a checking or savings account, because 26 he has a hard time memorizing numbers and filling out forms, and it 27 makes him feel insecure; when Plaintiff plays basketball, he becomes 28 weak, sweats, cannot catch his breath, and feels dizzy and sleepy; (A.R. 102.) When asked what Plaintiff was able to do prior to He is considered 8 years behind his age (Id.) 18 She also stated that: Plaintiff 1 Plaintiff does not like to go places where he has to socialize with 2 others; 3 condition affects his ability to stand, walk, talk, remember, complete 4 tasks, concentrate, understand, follow instructions, and get along with 5 others; Plaintiff cannot walk for longer than 15 minutes before he has 6 to rest; Plaintiff cannot follow instructions, because he has a hard 7 time reading and learning; and Plaintiff has difficulty handling stress 8 and changes in his routine. Plaintiff argues with family members; Plaintiff s mental (A.R. 104-09.) 9 10 Under the above-noted authorities, the ALJ erred by failing to 11 acknowledge and discuss the Questionnaire in his decision. However, the 12 Court finds this error to be harmless. 13 14 The ALJ was entitled to disregard Ms. Beltran s diagnostic-type 15 statements, e.g., that Plaintiff is mentally eight years behind his 16 chronological age, is primary handicapped, has sleep apnea, etc. 17 These are medical diagnoses, not lay observations about a claimant s 18 symptoms, and do not constitute competent evidence that the ALJ was 19 required to consider. 20 does not claim to be disabled based on such conditions, and there has 21 been no Step Two finding of such impairments. 22 ALJ to consider and/or note that he was disregarding such statements was 23 harmless. 24 2005)(in which the Ninth Circuit states that the failure of the ALJ to 25 adequately address the testimony of lay witnesses about the symptoms of 26 a claimed impairment properly found not severe at Step Two is of no 27 moment). Nguyen, 100 F.3d at 1467. Moreover, Plaintiff Hence, any failure by the See Ukolov v. Barnhart, 420 F.3d 1002, 1006 n.6 (9th Cir. 28 19 1 The ALJ also was entitled to disregard Ms. Beltran s observations 2 about Plaintiff s alleged physical impairments and symptoms, such as 3 weakness, fatigue, drowsiness, dizziness, an inability to walk for more 4 than 15 minutes, an impaired ability to walk and talk, etc. 5 does not contends that he is disabled based on any physical impairment 6 or physical symptoms. 7 is his emotional problems: that keep him from working; see also A.R. 8 61, disability report listing mental disorders as the only disabling 9 condition.) Significantly, although Plaintiff testified at the hearing, 10 he did not claim to have any of the physical impairments and symptoms 11 stated by Ms. Beltran. 12 contradicted 13 medications; he denied that he has any side effects from his medications 14 and stated that they help him. 15 finding of any physical impairment. 16 Beltran s statements relate to matters not in issue and not related to 17 any determined impairment, they properly should, and would, have been 18 disregarded. Ms. Plaintiff (A.R. 318, in which Plaintiff testifies that it (A.R. 315-21.) Beltran s Indeed, Plaintiff specifically assertions about (A.R. 317-18.) the effects of his The ALJ made no Step Two As a substantial portion of Ms. Ukolov, 420 F.3d at 1006 n.6. 19 20 Ms. Beltran s statements about Plaintiff s problems with 21 concentration and memory, difficulty in following instructions, feelings 22 of insecurity, difficulty or discomfort when socializing with others, 23 etc. are essentially cumulative of the medical testimony accepted by the 24 ALJ and reflected in his RFC finding that Plaintiff is limited to 25 simple, repetitive tasks with no public contact and minimal contact with 26 supervisors and co-workers. There is no reason to believe that, had the 27 ALJ expressly acknowledged and discussed these statements, he would have 28 reached a different RFC finding or found any additional impairment at 20 1 Step Two.3 2 approximately only one month after Plaintiff ceased his long-time use of 3 methamphetamines, marijuana, and alcohol and over two months before 4 Plaintiff began receiving psychiatric treatment and related medication. 5 Plaintiff testified that the medication and psychiatric treatment he 6 received following Ms. Beltran s statements had helped him. 7 18.) 8 questionable. Critically, Ms. Beltran s August 2004 statements were made Thus, the probative value of Ms. Beltran s (A.R. 317- statements is 9 10 Under these circumstances, the Court can confidently conclude that 11 no reasonable ALJ considering this case would have reached a different 12 conclusion 13 Beltran s statements set forth in the Questionnaire. 14 ALJ s failure to address such statements was harmless, and does not 15 warrant reversal. had he or she expressly considered and addressed Ms. Accordingly, the 16 17 CONCLUSION 18 19 For all of the foregoing reasons, the Court finds that neither 20 reversal of the ALJ s decision nor remand is warranted. Accordingly, IT 21 IS ORDERED that Judgment shall be entered affirming the decision of the 22 Commissioner of the Social Security Administration and dismissing this 23 case with prejudice. 24 25 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 26 copies of this Memorandum Opinion and Order and the Judgment on counsel 27 3 28 Plaintiff does not claim to have any additional impairments that should have been found severe at Step Two. 21 1 for Plaintiff and for Defendant. 2 3 LET JUDGMENT BE ENTERED ACCORDINGLY. 4 5 6 7 DATED: September 23, 2008 /s/ MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22

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