Francisco Ramirez Zamora v. Michael J. Astrue, No. 5:2010cv01607 - Document 15 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jay C. Gandhi. Accordingly, the Court finds that the ALJ did not err in relying on the VEs testimony because there was no conflict between the VEs testimony and the DOT. Based on the foregoing, IT IS ORDERED THAT judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits. (See Order for details) (bem)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 FRANCISCO RAMIREZ ZAMORA, ) Case No. ED CV 10-1607 JCG ) ) Plaintiff, ) ) MEMORANDUM OPINION AND v. ) ORDER ) MICHAEL J. ASTRUE, ) COMMISSIONER OF SOCIAL ) SECURITY ADMINISTRATION, ) ) ) Defendant. ) 16 17 I. 18 INTRODUCTION AND SUMMARY 19 On October 20, 2010, plaintiff Francisco Ramirez Zamora ( Plaintiff ) filed a 20 complaint against defendant Michael J. Astrue ( Defendant ), the Commissioner of 21 the Social Security Administration, seeking review of a denial of disability insurance 22 benefits ( DIB ) and supplemental security income benefits ( SSI ). [Docket No. 23 1.] 24 On April 27, 2011, Defendant filed his answer, along with a certified copy of 25 the administrative record. [Docket Nos. 10, 11, 12.] In sum, having carefully studied, inter alia, the parties joint stipulation and 26 27 the administrative record, the Court concludes that, as detailed below, there is 28 substantial evidence in the record, taken as a whole, to support the decision of the 1 Administrative Law Judge ( ALJ ). Thus, the Court affirms the Commissioner s 2 decision denying benefits. 3 II. 4 PERTINENT FACTUAL AND PROCEDURAL BACKGROUND Plaintiff, who was 50 years old on the date of his administrative hearing, has 5 6 completed the sixth grade. (See Administrative Record ( AR ) at 58, 159, 351.) On August 14, 2006, Plaintiff protectively filed for DIB and SSI, alleging that 7 8 he has been disabled since July 29, 2005 due to a lower back injury. (See AR at 45, 9 46, 47, 58, 68, 333.) On July 21, 2009, Plaintiff, represented by counsel, appeared and testified at a 10 11 hearing before an ALJ. (See AR at 351-72.) The ALJ also heard testimony from 12 Sandra Fioretti, a vocational expert ( VE ). (Id.) An interpreter was present to 13 assist Plaintiff at the hearing. (Id.) On September 30, 2009, the ALJ denied Plaintiff s request for benefits. (AR 14 15 at 18-25.) Applying the familiar five-step sequential evaluation process, the ALJ 16 found, at step one, that Plaintiff has engaged in substantial gainful activity since his 17 alleged onset date. (Id. at 20.) In particular, the ALJ found that Plaintiff s earnings 18 records reflect[] $13,539 for 2007. (Id.) However, the ALJ found that Plaintiff 19 has not otherwise engaged in substantial gainful activity since the alleged onset 20 date. (Id.) At step two, the ALJ found that Plaintiff suffers from severe lumbar 21 22 sprain/strain. (AR at 20.) At step three, the ALJ determined that the evidence did not demonstrate that 23 24 Plaintiff s impairment, either individually or in combination, met or medically 25 equaled the severity of any listing set forth in the Social Security regulations.1/ (AR 26 at 21.) 27 28 1/ See 20 C.F.R. pt. 404, subpt. P, app. 1. 2 The ALJ then assessed Plaintiff s residual functional capacity2/ ( RFC ) and 1 2 determined that he can perform light work with no work on unprotected heights, 3 [and] limited to occasional postural activities. (AR at 21 (emphasis omitted).) 4 The ALJ found, at step four, that Plaintiff lacks the ability to perform his past 5 relevant work as a construction worker. (AR at 23.) 6 At step five, based on Plaintiff s RFC and the VE s testimony, the ALJ found 7 that there are jobs that exist in significant numbers in the national economy that 8 [Plaintiff] can perform, including bench assembler, inspector, and small products 9 assembler. (AR at 24 (bold omitted).) Thus, the ALJ concluded that Plaintiff was 10 not suffering from a disability as defined by the Act. (Id. at 19, 25.) 11 Plaintiff filed a timely request for review of the ALJ s decision, which was 12 denied by the Appeals Council. (AR at 5-6, 10.) The ALJ s decision stands as the 13 final decision of the Commissioner. 14 III. 15 STANDARD OF REVIEW This Court is empowered to review decisions by the Commissioner to deny 16 17 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 18 Administration must be upheld if they are free of legal error and supported by 19 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001, as 20 amended Dec. 21, 2001). If the court, however, determines that the ALJ s findings 21 are based on legal error or are not supported by substantial evidence in the record, 22 the court may reject the findings and set aside the decision to deny benefits. 23 24 2/ Residual functional capacity is what a claimant can still do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 26 n. 5 (9th Cir. 1989). Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant s 27 residual functional capacity. Massachi v. Astrue, 486 F.3d 1149, 1151 n. 2 (9th 28 Cir. 2007). 3 1 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 2 242 F.3d 1144, 1147 (9th Cir. 2001). 3 Substantial evidence is more than a mere scintilla, but less than a 4 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such relevant 5 evidence which a reasonable person might accept as adequate to support a 6 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d 7 at 459. To determine whether substantial evidence supports the ALJ s finding, the 8 reviewing court must review the administrative record as a whole, weighing both 9 the evidence that supports and the evidence that detracts from the ALJ s 10 conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be affirmed 11 simply by isolating a specific quantum of supporting evidence. Aukland, 257 F.3d 12 at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the 13 evidence can reasonably support either affirming or reversing the ALJ s decision, 14 the reviewing court may not substitute its judgment for that of the ALJ. Id. 15 (quoting Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). 16 IV. 17 ISSUES PRESENTED 18 Five disputed issues are presented for decision here: 19 1. whether the ALJ properly evaluated the opinions of Plaintiff s treating 20 physicians, (see Joint Stip. at 18-19); 21 2. whether the ALJ properly translated the opinions of Plaintiff s treating 22 physicians from their workers compensation context, (id. at 11-12); 23 3. whether the ALJ properly assessed Plaintiff s RFC, (id. at 15-16); 24 4. whether the ALJ properly assessed Plaintiff s credibility, (id. at 3-5); 5. whether the ALJ properly concluded, at step five, that Plaintiff could 25 and 26 27 perform other work. (Id. at 25-26.) 28 The first two issues are related. Accordingly, the Court addresses the first two 4 1 arguments collectively before turning to the remaining issues. 2 V. 3 DISCUSSION AND ANALYSIS 4 A. Evaluation of the Medical Evidence 5 Plaintiff makes two interconnected arguments. First, he contends that the ALJ 6 failed to indicate what weight he assigned to the opinion of [Guy H. Gottschalk, 7 M.D. ( Dr. Gottschalk )] and Max H. Matos, M.D. ( Dr. Matos ), both of whom 8 treated Plaintiff in the context of his workers compensation claim. (Joint Stip. at 9 18-19.) 10 Second, Plaintiff maintains that the ALJ failed to indicate that he recognized 11 the differences between the relevant state workers compensation terminology, on 12 the one hand, and the relevant Social Security disability terminology, on the other 13 hand, and took those differences into account in evaluating the opinions of Dr. 14 Gottschalk and Dr. Matos. (Joint Stip. at 12.) 15 1. The ALJ Must Provide Specific and Legitimate Reasons 16 Supported by Substantial Evidence to Reject a Treating 17 Physician s Opinion 18 In evaluating medical opinions, Ninth Circuit case law and Social Security 19 regulations distinguish among the opinions of three types of physicians: (1) those 20 who treat the claimant (treating physicians); (2) those who examine but do not treat 21 the claimant (examining physicians); and (3) those who neither examine nor treat the 22 claimant (nonexamining physicians). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 23 1995, as amended April 9, 1996); see also 20 C.F.R. §§ 404.1527(d) & 416.927(d) 24 (prescribing the respective weight to be given the opinion of treating sources and 25 examining sources). As a general rule, more weight should be given to the opinion 26 of a treating source than to the opinion of doctors who do not treat the claimant. 27 Lester, 81 F.3d at 830; accord Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 28 1036 (9th Cir. 2003). This is so because a treating physician is employed to cure 5 1 and has a greater opportunity to know and observe the patient as an individual. 2 Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987). 3 The opinion of an examining physician is, in turn, entitled to greater weight 4 than the opinion of a nonexamining physician. Lester, 81 F.3d at 830; see also 20 5 C.F.R. §§ 404.1527(d)(1)-(2) & 416.927(d)(1)-(2). Where the treating physician s 6 opinion is not contradicted by another doctor, it may be rejected only for clear and 7 convincing reasons. Benton, 331 F.3d at 1036. Even if the treating doctor s 8 opinion is contradicted by another doctor, the [ALJ] may not reject this opinion 9 without providing specific and legitimate reasons supported by substantial evidence 10 in the record[.] Lester, 81 F.3d at 830 (internal quotation marks and citation 11 omitted). 12 The ALJ can meet the requisite specific and legitimate standard by setting 13 out a detailed and thorough summary of the facts and conflicting clinical evidence, 14 stating his interpretation thereof, and making findings. Magallanes v. Bowen, 881 15 F.2d 747, 751 (9th Cir. 1989) (internal quotation marks and citation omitted). 16 17 2. The ALJ Properly Evaluated the Medical Evidence The Court is persuaded that the ALJ properly evaluated the medical evidence 18 and his opinion is supported by substantial evidence. This Court s decision is 19 grounded on four reasons. 20 First, contrary to Plaintiff s assertion that the ALJ did not indicate what 21 weight he assigned to the opinion of Dr. Gottschalk and Dr. Matos, (Joint Stip. at 22 18, 19), the ALJ properly assigned minimal weight to both opinions because they 23 were not supported by the objective evidence. (AR at 22); see Burkhart v. Bowen, 24 856 F.2d 1335, 1339-40 (9th Cir. 1988) (ALJ properly rejected treating physicians 25 opinion which was unsupported by medical findings, personal observations or test 26 reports); Batson v. Comm r of Soc. Sec., 359 F.3d 1190, 1195 (9th Cir. 2004) (ALJ 27 may discredit treating physicians opinions that are conclusory, brief, and 28 unsupported by the record as a whole, or by objective medical findings). 6 1 For instance, Dr. Gottschalk noted that Plaintiff has a problem with gait and 2 requires the routine use of a cane. (AR at 200.) Similarly, Dr. Matos opined that 3 Plaintiff s [w]alking tolerance is 10 minutes, [s]itting tolerance is 15 minutes, 4 and his [s]tanding tolerance is 20 minutes. (Id. at 253.) However, the record is 5 replete with evidence that Plaintiff did not have difficulty walking, standing, or with 6 his gait on a consistent basis. (See, e.g., id. at 124-27 (treatment note, dated August 7 30, 2005, reporting patient was able to walk without difficulties with preserved 8 automatic arm swing[, h]eel and toe walking was intact[, and t]andem gait was 9 normal ), 138-40 (evaluating physician report, dated October 6, 2006, indicating that 10 Plaintiff used no assistive devices to ambulate, his gait was normal, walked on 11 tiptoes and heels without difficulty and finding [t]here was a full range of motion 12 of the cervical spine ), 151-52 (evaluating physician report, dated March 3, 2008, 13 indicating Plaintiff utilized a cane in his right hand, but did not appear to bear any 14 significant weight on the cane and appeared not to need it walking around the 15 examination room ), 227-28 (supplemental report from Dr. Matos, dated October 16 25, 2007, stating that Plaintiff s [g]ait is normal heel to toe ).) 17 Second, the ALJ properly discounted Dr. Gottschalk s opined limitations 18 based on the overall conservative treatment Plaintiff received for his back 19 impairments. (AR at 22 (ALJ noting that Plaintiff was merely taking Tylenol and 20 Advil and was treated conservatively )); see also Rollins v. Massanari, 261 F.3d 21 853, 856 (9th Cir. 2001) (ALJ properly rejected opinion of treating physician who 22 prescribed conservative treatment). The ALJ s reason is supported by substantial 23 evidence. On July 23, 2008, Dr. Gottschalk reported that Plaintiff is currently 24 taking Tylenol Extra Strength and Advil. (AR at 212-15; see also id. at 151 25 (consultative orthopedist note, dated March 3, 2008, indicating Plaintiff s [c]urrent 26 medication is Tylenol ).) On April 10, 2009, following a referral by Dr. Gottschalk 27 to a pain management consultation, Plaintiff was prescribed cautious[] exercise by 28 walking and stretching regularly and was reported to have medication for his 7 1 pain. (Id. at 182-83.) Although Plaintiff is awaiting the results of [a] lumbar spine 2 ultrasound, which was requested to determine if Plaintiff would be approved for 3 surgery by his insurance company, he has had no surgeries for his back impairments, 4 nor has his request been approved. (See id. at 151, 183, 357-58.) 5 Third, the ALJ properly assigned more weight to the opinions of treating 6 orthopedic surgeon Daniel Kharrazi, M.D. ( Dr. Kharrazi ), evaluating orthopedic 7 surgeon William C. Boeck, Jr., M.D. ( Dr. Boeck ), and evaluating neurologist 8 Gregory B. Kirkorowicz, M.D. ( Dr. Kirkorowicz ). (AR at 22.) 9 From July 28, 2005 through June 14, 2007, Dr. Kharrazi provided treatment 10 for Plaintiff as his workers compensation designated primary treating physician. 11 (See AR at 129-37, 262-309.) On September 7, 2006, Dr. Kharrazi found Plaintiff to 12 be a well-developed, well-nourished male in no acute distress, ambulating without 13 difficulty. (Id. at 130.) On June 14, 2007, Dr. Kharrazi found that Plaintiff 14 suffered from a [d]ecreased range of motion and tenderness of the lumbar spine, 15 and determined that Plaintiff has reached a plateau in his recovery. (Id. at 263.) 16 Dr. Kharrazi concluded that Plaintiff should be restricted from heavy lifting and 17 flexion or extension at the lumbar spine and avoid prolonged bending and 18 stooping, but did not opine any further limitations. (Id.) Accordingly, the ALJ 19 properly accepted Dr. Kharrazi s treating opinion over Dr. Gottschalk s opinion. 20 Magallanes, 881 F.2d at 750 ( The ALJ is responsible for determining credibility 21 and resolving conflicts in medical testimony. ). 22 Further, both Dr. Kirkorowicz and Dr. Boeck performed physical 23 examinations of Plaintiff and found his RFC to be less restrictive than that 24 determined by the ALJ. (See AR at 125, 152); see also Magallanes, 881 F.2d at 751 25 (An examining physician s opinion may constitute substantial evidence if the 26 nontreating physician relies on independent clinical findings that differ from the 27 findings of the treating physician. ) (internal citation omitted). Dr. Kirkorowicz 28 noted that Plaintiff suffered from chronic back pain, but he also indicated that 8 1 Plaintiff is a relatively young and healthy person, the strength in his upper and 2 lower extremities reveal no atrophy or focal weakness, and his [m]uscle tone was 3 normal. (Id. at 126-28.) Dr. Boeck similarly found Plaintiff to be a pleasant, 4 healthy-appearing man who is alert, oriented, conversant, and cooperative. (Id. at 5 152.) He concluded Plaintiff has moderate voluntary guarding with low back 6 motions, but also readily squats fully and gets up easily and readily comes to a 7 seated position on the examining table. (Id.) Therefore, both opinions constitute 8 substantial evidence in support of rejecting Dr. Gottschalk s opinion. 9 Fourth, the Court rejects Plaintiff s assertion that the ALJ failed to consider 10 the differences between the workers compensation and Social Security statutory 11 schemes. In this case, although the ALJ did not explicitly translate Dr. Gottschalk s 12 and Dr. Matos findings into Social Security parlance, his reasoning can be gleaned 13 from his opinion. Further, the ALJ expressly acknowledged that disability was a 14 distinct concept for workers compensation and Social Security benefits purposes. 15 (See AR at 22.) Plaintiff presents no evidence that the ALJ failed to recognize that a 16 distinction exists between the two schemes, or that the ALJ incorrectly interpreted 17 any workers compensation terminology used by Plaintiff s physicians. (See 18 generally Joint Stip. at 11-12); Booth v. Barnhart, 181 F. Supp. 2d 1099, 1106 (C.D. 19 Cal. 2002) (ALJ s decision need not contain an explicit translation, instead should 20 indicate that the ALJ recognized the differences and took those differences into 21 account when evaluating the medical evidence). 22 Thus, the ALJ properly considered the opinions of Dr. Gottschalk and Dr. 23 Matos, which were provided in the context of Plaintiff s workers compensation 24 claim, and provided specific and legitimate reasons for rejecting those opinions. 25 Booth, 181 F. Supp. 2d at 1105 ( ALJ must evaluate medical opinions couched in 26 state workers compensation terminology just as he or she would evaluate any other 27 medical opinion. ). The Court finds that the ALJ s evaluation of the medical 28 evidence is free of legal error and is supported by substantial evidence. 9 1 B. RFC Determination 2 Plaintiff contends that the ALJ concludes that [Plaintiff] has the [RFC] to 3 perform light work and occasional posturals . . . but fails to identify which opinion 4 he relied on for his conclusion. (Joint Stip. at 15-16.) Plaintiff correctly asserts that the ALJ failed to identify which opinion he 5 6 relied on for his conclusion. This error was harmless, however, because the ALJ s 7 RFC determination is consistent with Dr. Kharrazi s opinion and is more restrictive 8 than the RFC opined by Dr. Boeck.3/ See, e.g., Stoner v. Comm r, 239 Fed.Appx. 9 359, 360 (9th Cir. 2007). The ALJ determined that Plaintiff can perform light work with no work on 10 11 unprotected heights, [and] limited to occasional postural activities. (AR at 21.) 12 Light work involves lifting no more than 20 pounds at a time with frequent lifting 13 or carrying of objects weighing up to 10 pounds. Even though the weight lifted may 14 be very little, a job is in this category when it requires a good deal of walking or 15 standing, or when it involves sitting most of the time with some pushing and pulling 16 of arm or leg controls. 20 C.F.R. §§ 404.1567(b) & 416.967(b). Frequent means 17 occurring from one-third to two-thirds of the time, or up to almost six hours in an 18 eight-hour work day. Social Security Ruling ( SSR ) 83-10,4/ 1983 WL 31251, at 19 *6. Dr. Boeck determined that Plaintiff can still lift and carry 50 pounds 20 21 22 23 24 25 26 27 28 3/ Dr. Zirkorowicz did not provide any RFC findings describing Plaintiff s capabilities despite his limitations. (See generally AR at 124-28.) 4/ The Commissioner issues Social Security Rulings [( SSRs )] to clarify the Act s implementing regulations and the agency s policies. SSRs are binding on all components of the [Social Security Administration]. SSRs do not have the force of law. However, because they represent the Commissioner s interpretation of the agency s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations. Holohan v. Massanari, 246 F.3d 1195, 1203 n. 1 (9th Cir. 2001) (internal citations omitted). 10 1 occasionally, 25 pounds frequently, stand and walk 6 hours in an 8-hour day, and sit 2 for 6 hours in an 8-hour day. (AR at 155.) Dr. Kharrazi concluded that Plaintiff 3 should be restricted from heavy lifting, no flexion or extension at the lumbar spine, 4 [and] avoid[] . . . prolonged bending and stooping. (Id. at 264); see Carpenter v. 5 Apfel, 2000 WL 973681, at *3-*4 (N.D. Cal. 2000) (holding that examining 6 physician s opinion that the claimant had lost some capacity for lifting and 7 bending, and was precluded from heavy lifting under California workers 8 compensation guidelines supported the ALJ s finding that the claimant could 9 perform light work); Payan v. Chater, 959 F. Supp. 1197, 1203 (C.D. Cal. 1996) 10 (holding that the ALJ properly found that a claimant who was precluded from 11 heavy lifting under the workers compensation guidelines could perform medium 12 work as defined by the Commissioner). Thus, the ALJ properly relied on both 13 opinions, which comport with his RFC determination. 14 C. Plaintiff s Credibility 15 Plaintiff argues that the ALJ failed to provide clear and convincing reasons 16 for discrediting [Plaintiff s] testimony. (Joint Stip. at 5.) Plaintiff maintains that 17 the ALJ relied on a lack of objective evidence; sit and squirm jurisprudence; took 18 issue with [Plaintiff s] English speaking ability; and took issue with [Plaintiff s] 19 earning[s] that [Plaintiff] denied[, but] . . . failed to consider [P]laintiff s daily 20 activities; his work record; and testimony from physicians and third parties. (Id. at 21 4-5.) 22 23 24 1. The ALJ Must Provide Clear and Convincing Reasons For Discounting Plaintiff s Credibility An ALJ can reject a plaintiff s subjective complaint upon (1) finding evidence 25 of malingering, or (2) expressing clear and convincing reasons for doing so. Benton, 26 331 F.3d at 1040. The ALJ may consider the following factors in weighing a 27 plaintiff s credibility: (1) his or her reputation for truthfulness; (2) inconsistencies 28 either in the plaintiff s testimony or between the plaintiff s testimony and his or her 11 1 conduct; (3) his or her daily activities; (4) his or her work record; and (5) testimony 2 from physicians and third parties concerning the nature, severity, and effect of the 3 symptoms of which she complains. Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th 4 Cir. 2002). 5 Here, the ALJ did not find evidence of malingering. (See generally AR at 18- 6 25.) Therefore, the ALJ s reasons for rejecting Plaintiff s credibility must rest on 7 clear and convincing reasons. See Benton, 331 F.3d at 1040. 8 9 2. The ALJ Properly Rejected Plaintiff s Subjective Complaints The Court is persuaded that the ALJ provided clear and convincing reasons 10 supported by substantial evidence for rejecting Plaintiff s credibility. Four reasons 11 guide this determination. 12 First, the ALJ found that the objective medical evidence does not support 13 Plaintiff s alleged degree of disability. (AR at 23; see supra § V.A.2.) A lack of 14 objective evidence supporting Plaintiff s symptoms cannot be the sole reason for 15 rejecting Plaintiff s testimony. Rollins, 261 F.3d at 856-57. However, it can be one 16 of several factors used in evaluating the credibility of Plaintiff s subjective 17 complaints. Id. 18 Second, the ALJ properly cited a number of inconsistencies between 19 Plaintiff s testimony and conduct. See Thomas, 278 F.3d at 958-59 (inconsistency 20 between the claimant s testimony and the claimant s conduct supported rejection of 21 the claimant s credibility); Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) 22 (inconsistencies between claimant s testimony and actions cited as a clear and 23 convincing reason for rejecting the claimant s testimony). The ALJ noted that 24 Plaintiff insisted during the hearing that he does not speak any English, (see AR at 25 23, 354-55), even though an evaluating psychiatrist reported Plaintiff speaks 26 English and does not need an interpreter. (Id. at 157; see also id. at 68-70 27 (disability report completed by interviewer K. Taylor and observing no difficulty in 28 understanding, talking, or answering questions during face-to-face interview).) 12 1 Further, the ALJ properly rejected Plaintiff s credibility based on his 2 testimony denying he has worked since 2005. (AR at 23; see also id. at 360 3 (Plaintiff testifying that I have not worked at all from 2005 ).) Despite his denial, 4 the ALJ found that Plaintiff s pay records indicate he earned over $13,000 in 2007 5 despite alleging disability since 2005. (Id. at 23; see id. at 66-67 (earnings record 6 showing Plaintiff earned $13,539 in 2007).) 7 Moreover, although Plaintiff testified that he can be seated for five to ten 8 minutes before he has to get out of the chair, (AR at 363-64), the ALJ reported 9 that Plaintiff sat throughout the hearing for one hour in no apparent discomfort. 10 (Id. at 23.) This is a clear and convincing reason for discounting Plaintiff s 11 subjective complaints. See Orn v. Astrue, 495 F.3d 625, 639-40 (9th Cir. 2007) 12 (while ALJ may not rely solely on personal observations to discount a claimant s 13 testimony, he may use those observations in context with other indicators of 14 claimant s credibility in evaluating testimony). 15 Third, the ALJ determined that Plaintiff produced four almost completely 16 full bottles of medications at the hearing suggesting either noncompliance or no 17 need for that medication. (AR at 23); see Bubion v. Barnhart, 224 Fed.Appx. 601, 18 604 (9th Cir. 2007) (ALJ properly discounted plaintiff s credibility based on failure 19 to follow prescribed treatment and plaintiff did not provide an acceptable reason for 20 not following prescribed course of treatment). Although the ALJ did not note that 21 Plaintiff also testified that the medication gave him some side effects and that his 22 doctor advised him to stop taking them, (AR at 357-59), Plaintiff s statement was 23 not credible. He subsequently testified that the reason for [the full bottles of 24 medication] is I go to the doctor every four to six weeks and he gives me additional 25 medication so what I ll do is I ll continue taking the one I had previously and . . . I 26 have additional in my car, I always carry with [me] . . . [and] I carry with me some 27 medications too because I have at the house, I have other bottles of medicine also 28 that . . . are still unopened. (Id. at 359.) 13 1 Fourth, the Court concludes that the ALJ improperly discounted Plaintiff s 2 subjective complaints based on his finding that there was some manipulation of the 3 evidence. 5/ (AR at 23.) Nevertheless, the Court finds that the ALJ s reliance on 4 this reason was harmless error. See Batson, 359 F.3d at 1195-97 (9th Cir. 2004) 5 (concluding that the ALJ erred in relying on one of several reasons in support of an 6 adverse credibility determination, but finding error harmless, because the ALJ s 7 remaining reasoning and ultimate credibility determination were adequately 8 supported by substantial evidence in the record). So long as there remains 9 substantial evidence supporting the ALJ s conclusions on credibility and the error 10 does not negate the validity of the ALJ s ultimate credibility conclusion, such is 11 deemed harmless and does not warrant reversal. Carmickle v. Comm r, 533 F.3d 12 1155, 1162 (9th Cir. 2008) (internal quotation marks, alterations and citation 13 omitted). On this record, the ALJ s error does not negate the validity of his ultimate 14 15 credibility finding and the ALJ s decision remains legally valid, despite such 16 error. See Carmickle, 533 F.3d at 1162 (internal quotation marks and citation 17 omitted). As noted above, the ALJ s findings relating to Plaintiff s subjective 18 complaints are supported by substantial evidence and they demonstrate that, to the 19 extent the ALJ discounted Plaintiff s credibility, the ALJ did not do so arbitrarily. 20 See Rollins, 261 F.3d at 856-57. 21 22 5/ The ALJ discounted Plaintiff s subjective complaints because a third-party 23 report was submitted from [Plaintiff s] friend which was in the same handwriting 24 as that purportedly of [Plaintiff]. (AR at 23.) While the Court finds that the content in the third party function report completed by Plaintiff s friend mirrors the 25 document completed by Plaintiff and the handwriting on both documents appears to 26 be the same, the ALJ s determination that there was manipulation of the evidence is inconclusive, given that the Court will extend a gracious benefit of doubt to 27 Plaintiff. (Compare id. at 96-103 (Plaintiff s adult function report) with id. at 88-95 28 (third-party function report).) 14 1 Thus, the ALJ provided legally sufficient reasons supported by substantial 2 evidence for discounting Plaintiff s subjective complaints of pain. 3 D. Step-Five Determination 4 Plaintiff argues that the ALJ found that the plaintiff had a marginal 5 education, which creates a conflict with the Reasoning Level of R-2 required by 6 the jobs cited by the VE. (Joint Stip. at 25-26.) 7 There was no inconsistency between the VE s testimony and the Dictionary of 8 Occupational Titles ( DOT ). Each of the jobs identified by the VE has a reasoning 9 level of two, which does not conflict with the ALJ s finding that Plaintiff possesses a 10 marginal education. (See AR at 24 (ALJ relying on VE testimony that Plaintiff can 11 perform the jobs of bench assembler, inspector, and small products assembler), 370 12 (VE s testimony)); see also DOT 706.684-042, 1991 WL 679055 (bench assembler 13 description); DOT 559.687-074, 1991 WL 683797 (inspector and hand packager 14 description); DOT 739.687-030, 1991 WL 680180 (assembler, small products II 15 description). 16 Marginal education means ability in reasoning, arithmetic, and language 17 skills which are needed to do simple, unskilled types of jobs. 20 C.F.R. 18 § 404.1564(b)(2) (emphasis added). A job with a reasoning level of two requires 19 that the worker [a]pply commonsense understanding to carry out detailed but 20 uninvolved written or oral instructions and deal with problems involving a few 21 concrete variables[.] See, e.g., DOT 706.684-042, 1991 WL 679055. 22 However, the DOT employs a much more graduated, measured and finely 23 tuned scale than the Social Security regulations, which separate a claimant s 24 ability to understand and remember things and to concentrate into just two 25 categories: short and simple instructions and detailed or complex instructions. 26 Meissl v. Barnhart, 403 F. Supp. 2d 981, 984 (C.D. Cal. 2005) (citing 20 C.F.R. 27 § 416.969a(c)(1)(iii)). A reasoning level of two is consistent with a limitation to 28 simple, unskilled types of jobs. See id.; Lara v. Astrue, 305 Fed.Appx. 324, 326 (9th 15 1 Cir. 2008) ( [S]omeone able to perform simple, repetitive tasks is capable of doing 2 work requiring more vigor and sophistication in other words, Reasoning Level 2 3 jobs. ); Scott v. Astrue, 2011 WL 1584144, at *6 (C.D. Cal. 2011) (holding that a 4 limitation to simple, repetitive tasks is consistent with reasoning level two jobs). 5 Accordingly, the Court finds that the ALJ did not err in relying on the VE s 6 testimony because there was no conflict between the VE s testimony and the DOT.6/ Based on the foregoing, IT IS ORDERED THAT judgment shall be entered 7 8 AFFIRMING the decision of the Commissioner denying benefits. 9 10 11 Dated: July 22, 2011 12 ___________________________ Hon. Jay C. Gandhi United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6/ Defendant points out, and the Court agrees, that notably the ALJ in this case did not ascribe any mental limitations to Plaintiff and Plaintiff s marginal education had enabled him to work as a construction worker I for fifteen years, and this job required level three reasoning, math, and language skills. (Joint Stip. at 27 (emphasis in original); see also AR at 369 (VE s testimony that Plaintiff s past relevant work was as a construction worker I)); DOT 869.664-014, 1991 WL 687601 (construction worker I description requiring reasoning level three). 16

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