Laura Jane Jarvis v. Commissioner of Social Security, No. 2:2016cv00791 - Document 27 (C.D. Cal. 2016)
Court Description: DECISION AND ORDER by Magistrate Judge Victor E Bianchini. IT IS THEREFORE ORDERED that: Judgment be entered AFFIRMING the Commissioner's decision and DISMISSING this action, and it is further ORDERED that The Clerk of the Court file this Decision and Order and serve copies upon counsel for the parties. (See Order for Further Details) (kl)
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Laura Jane Jarvis v. Commissioner of Social Security Doc. 27 1 2 3 4 UNITED STATES DISTRICT COURT 5 CENTRAL DISTRICT OF CALIFORNIA 6 Case No. 2:16-CV-00791 (VEB) 7 8 LAURA JANE JARVIS, 10 11 12 DECISION AND ORDER Plaintiff, 9 vs. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. 13 14 15 16 17 I. INTRODUCTION In October of 2012, Plaintiff Laura Jane Jarvis applied for Disability Insurance benefits under the Social Security Act. The Commissioner of Social Security denied the application. 18 19 20 1 DECISION AND ORDER – JARVIS v COLVIN 2:16-CV-00791-VEB Dockets.Justia.com 1 Plaintiff, by and through her attorney, Jane W. Cervantes, Esq. commenced 2 this action seeking judicial review of the Commissioner’s denial of benefits pursuant 3 to 42 U.S.C. §§ 405 (g) and 1383 (c)(3). 4 The parties consented to the jurisdiction of a United States Magistrate Judge. 5 (Docket No. 10, 11, 15, 17). On November 4, 2016, this case was referred to the 6 undersigned pursuant to General Order 05-07. (Docket No. 26). 7 8 II. BACKGROUND Plaintiff applied for Disability Insurance benefits on October 24, 2012. (T at 9 10 17).1 11 requested a hearing before an Administrative Law Judge (“ALJ”). The application was denied initially and on reconsideration. Plaintiff 12 On April 17, 2014, a hearing was held before ALJ Keith Dietterle. (T at 32). 13 Plaintiff appeared with her attorney and testified. (T at 37-63). The ALJ also 14 received testimony from two medical experts, Dr. Richard Allen Hutson (T at 65-68) 15 and Dr. David G. Jarman (T at 63-64), and Kristen Cicero, a vocational expert. (T at 16 68-71). 17 On October 6, 2014, the ALJ issued a written decision denying the application 18 for benefits. (T at 14-31). The ALJ’s decision became the Commissioner’s final 19 1 20 Citations to (“T”) refer to the administrative record at Docket No. 24. 2 DECISION AND ORDER – JARVIS v COLVIN 2:16-CV-00791-VEB 1 decision on December 14, 2015, when the Appeals Council denied Plaintiff’s 2 request for review. (T at 1-6). 3 On February 4, 2016, Plaintiff, acting by and through her counsel, filed this 4 action seeking judicial review of the Commissioner’s denial of benefits. (Docket No. 5 1). The Commissioner interposed an Answer on June 22, 2016. (Docket No. 23). 6 The parties filed a Joint Stipulation on June 28, 2016. (Docket No. 25). 7 After reviewing the pleadings, Joint Stipulation, and administrative record, 8 this Court finds that the Commissioner’s decision must be affirmed and this case be 9 dismissed. 10 11 III. DISCUSSION A. Sequential Evaluation Process 12 The Social Security Act (“the Act”) defines disability as the “inability to 13 engage in any substantial gainful activity by reason of any medically determinable 14 physical or mental impairment which can be expected to result in death or which has 15 lasted or can be expected to last for a continuous period of not less than twelve 16 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a 17 claimant shall be determined to be under a disability only if any impairments are of 18 such severity that he or she is not only unable to do previous work but cannot, 19 considering his or her age, education and work experiences, engage in any other 20 3 DECISION AND ORDER – JARVIS v COLVIN 2:16-CV-00791-VEB 1 substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 2 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and 3 vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 4 The Commissioner has established a five-step sequential evaluation process 5 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step 6 one determines if the person is engaged in substantial gainful activities. If so, 7 benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the 8 decision maker proceeds to step two, which determines whether the claimant has a 9 medically severe impairment or combination of impairments. 20 C.F.R. §§ 10 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 11 If the claimant does not have a severe impairment or combination of 12 impairments, the disability claim is denied. If the impairment is severe, the 13 evaluation proceeds to the third step, which compares the claimant’s impairment(s) 14 with a number of listed impairments acknowledged by the Commissioner to be so 15 severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 16 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or 17 equals one of the listed impairments, the claimant is conclusively presumed to be 18 disabled. If the impairment is not one conclusively presumed to be disabling, the 19 evaluation proceeds to the fourth step, which determines whether the impairment 20 4 DECISION AND ORDER – JARVIS v COLVIN 2:16-CV-00791-VEB 1 prevents the claimant from performing work which was performed in the past. If the 2 claimant is able to perform previous work, he or she is deemed not disabled. 20 3 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, the claimant’s residual 4 functional capacity (RFC) is considered. If the claimant cannot perform past relevant 5 work, the fifth and final step in the process determines whether he or she is able to 6 perform other work in the national economy in view of his or her residual functional 7 capacity, age, education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 8 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987). 9 The initial burden of proof rests upon the claimant to establish a prima facie 10 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 11 Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden 12 is met once the claimant establishes that a mental or physical impairment prevents 13 the performance of previous work. The burden then shifts, at step five, to the 14 Commissioner to show that (1) plaintiff can perform other substantial gainful 15 activity and (2) a “significant number of jobs exist in the national economy” that the 16 claimant can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 17 B. Standard of Review 18 Congress has provided a limited scope of judicial review of a Commissioner’s 19 decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner’s decision, 20 5 DECISION AND ORDER – JARVIS v COLVIN 2:16-CV-00791-VEB 1 made through an ALJ, when the determination is not based on legal error and is 2 supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 3 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). 4 “The [Commissioner’s] determination that a plaintiff is not disabled will be 5 upheld if the findings of fact are supported by substantial evidence.” Delgado v. 6 Heckler, 722 F.2d 570, 572 (9th Cir. 1983)(citing 42 U.S.C. § 405(g)). Substantial 7 evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 8 n 10 (9th Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d 9 599, 601-02 (9th Cir. 1989). Substantial evidence “means such evidence as a 10 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 11 Perales, 402 U.S. 389, 401 (1971)(citations omitted). “[S]uch inferences and 12 conclusions as the [Commissioner] may reasonably draw from the evidence” will 13 also be upheld. Mark v. Celebreeze, 348 F.2d 289, 293 (9th Cir. 1965). On review, 14 the Court considers the record as a whole, not just the evidence supporting the 15 decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 16 1989)(quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 1980)). 17 It is the role of the Commissioner, not this Court, to resolve conflicts in 18 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational 19 interpretation, the Court may not substitute its judgment for that of the 20 6 DECISION AND ORDER – JARVIS v COLVIN 2:16-CV-00791-VEB 1 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th 2 Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be 3 set aside if the proper legal standards were not applied in weighing the evidence and 4 making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 5 432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the 6 administrative findings, or if there is conflicting evidence that will support a finding 7 of either disability or non-disability, the finding of the Commissioner is conclusive. 8 Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 9 C. Commissioner’s Decision 10 The ALJ determined that Plaintiff had not engaged in substantial gainful 11 activity since March 16, 2012, the alleged onset date, and met the insured status 12 requirements of the Social Security Act through June 30, 2016 (the “date last 13 insured”). (T at 21). The ALJ found that Plaintiff’s degenerative disease of the 14 lumbar spine, joint disease of the right shoulder, affective mood disorder, and 15 anxiety disorder were “severe” impairments under the Act. (Tr. 19). 16 However, the ALJ concluded that Plaintiff did not have an impairment or 17 combination of impairments that met or medically equaled one of the impairments 18 set forth in the Listings. (T at 20). 19 20 7 DECISION AND ORDER – JARVIS v COLVIN 2:16-CV-00791-VEB 1 The ALJ determined that Plaintiff retained the residual functional capacity 2 (“RFC”) to perform light work, as defined in 20 CFR § 404.1567 (b), with the 3 following limitations: she cannot climb ladders, scaffolds or ropes; cannot lift with 4 the right upper extremity above shoulder level; must avoid unprotected heights and 5 dangerous or fast moving machinery; must avoid concentrated exposure to heat, 6 cold, wetness, humidity, and vibrations; cannot work in a fast-past occupation; and 7 is limited to occasional public contact. (T at 21-22). 8 The ALJ concluded that Plaintiff could not perform her past relevant work as 9 a bus driver. (T at 25). Considering Plaintiff’s age (50 years old on the alleged onset 10 date), education (at least high school), work experience, and residual functional 11 capacity, the ALJ found that jobs exist in significant numbers in the national 12 economy that Plaintiff can perform. (T at 25). 13 Accordingly, the ALJ determined that Plaintiff was not disabled within the 14 meaning of the Social Security Act between March 16, 2012 (the alleged onset date) 15 and October 6, 2014 (the date of the decision) and was therefore not entitled to 16 benefits. (T at 26). As noted above, the ALJ’s decision became the Commissioner’s 17 final decision when the Appeals Council denied Plaintiff’s request for review. (T at 18 1-6). 19 20 8 DECISION AND ORDER – JARVIS v COLVIN 2:16-CV-00791-VEB 1 D. Disputed Issues 2 As set forth in the Joint Stipulation (Docket No. 25, at p. 10), Plaintiff offers 3 three (3) main arguments in support of her claim that the Commissioner’s decision 4 should be reversed. First, she challenges the ALJ’s step five analysis. Second, 5 Plaintiff contends that the ALJ did not adequately assess her chronic headaches. 6 Third, she argues that the ALJ erred in considering the medical opinion evidence. 7 This Court will address each argument in turn. 8 9 10 IV. ANALYSIS A. Step Five Analysis 11 At step five of the sequential evaluation, the burden is on the Commissioner to 12 show that (1) the claimant can perform other substantial gainful activity and (2) a 13 “significant number of jobs exist in the national economy” which the claimant can 14 perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). If a claimant cannot 15 return to his previous job, the Commissioner must identify specific jobs existing in 16 substantial numbers in the national economy that the claimant can perform. See 17 Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir.1995). The Commissioner may 18 carry this burden by “eliciting the testimony of a vocational expert in response to a 19 20 9 DECISION AND ORDER – JARVIS v COLVIN 2:16-CV-00791-VEB 1 hypothetical that sets out all the limitations and restrictions of the claimant.” 2 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.1995). 3 Here, the ALJ determined that Plaintiff’s RFC precluded her from working 4 with her right arm above shoulder level. (T at 21-25). At step five, the ALJ relied on 5 the testimony of Kristen Cicero, a vocational expert, who opined that a person so 6 limited could work as an inspector, packer, and bagger. (T at 25-26, 69-70). 7 Per the U.S. Department of Labor’s Dictionary of Occupational Titles 8 (“DOT”), each of those jobs may involve frequent reaching. See DOT §§ 529.687- 9 114; 559.687-074; 921.687-018. “The Social Security Administration has taken 10 administrative notice of the [DOT], which is published by the Department of Labor 11 and gives detailed physical requirements for a variety of jobs.” Massachi v. Astrue, 12 486 F.3d 1149, 1152 n. 8 (9th Cir. 2007)(citing 20 C.F.R. § 416.966(d)(1)). 13 ALJs rely on the DOT “in evaluating whether the claimant is able to perform 14 other work in the national economy.” Terry v. Sullivan, 903 F.2d 1273, 1276 (9th 15 Cir. 1990) (citations omitted); 20 C.F.R. §§ 404.1566(d)(1), 416.966(d)(1). The 16 DOT creates a presumption with respect to job classification requirements. Johnson 17 v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1998). 18 It is well-settled that the ALJ has a duty to inquire about “any possible 19 conflict” between the vocational expert’s testimony and the DOT. See SSR 00-4p; 20 10 DECISION AND ORDER – JARVIS v COLVIN 2:16-CV-00791-VEB 1 Massachi v. Astrue, 486 F.3d 1149, 1152-54 (9th Cir. 2007). If there is such a 2 conflict, the ALJ may accept the vocational expert’s testimony only if there is 3 “persuasive evidence to support the deviation.” Pinto v. Massanari, 249 F.3d 840, 4 846 (9th Cir. 2001) (quoting Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 5 1995)). 6 However, the ALJ’s failure to inquire about potential conflicts may be 7 harmless if there is no actual conflict or if the vocational expert provides sufficient 8 support to justify any conflicts or variance from the DOT. See Salcido v. Astrue, 9 2012 U.S. Dist. LEXIS 82056, at *9 (C.D. Cal. June 13, 2012)(collecting cases). 10 In this case, Plaintiff argues that there was a conflict between the DOT and the 11 vocational expert’s conclusion. In particular, the vocational expert opined that a 12 hypothetical claimant unable to work with her right arm above shoulder level could 13 nevertheless perform the requirements of the inspector, packer, and bagger jobs. 14 However, those jobs, as defined by the DOT, may require frequent reaching. The 15 ALJ did not ask the vocational expert about this and, as such, Plaintiff argues that a 16 remand is required. 17 However, while the ALJ should have inquired as to any conflict between the 18 vocational expert’s testimony and the DOT, the error is harmless because there was 19 no conflict. Numerous courts have concluded that a DOT description that a job 20 11 DECISION AND ORDER – JARVIS v COLVIN 2:16-CV-00791-VEB 1 requires “frequent reaching” does not imply a requirement of frequent bilateral 2 reaching. See Salcido, 2012 U.S. Dist. LEXIS 82056, at *10 (collecting cases); 3 Gutierrez v. Astrue, No. CV 10-9690-PJW, 2012 U.S. Dist. LEXIS 8779 (C.D. Cal. 4 Jan. 24, 2012) (“[G]enerally speaking, the requirement that an employee frequently 5 use his hands to perform a job does not mean that he has to be able to use both 6 hands.”); McConnell v. Astrue, No. EDCV 08-667-JC, 2010 U.S. Dist. LEXIS 7 46156 (C.D. Cal. May 10, 2010) (finding no conflict because DOT does not require 8 use of both hands). 9 As such, because the ALJ here found limitation only with regard to lifting 10 above the shoulder with the right upper extremity – with no limitation as to reaching 11 with the left upper extremity (a finding Plaintiff does not challenge) – there was no 12 conflict between the DOT and the vocational expert’s testimony. Accordingly, this 13 Court finds no error as to this aspect of the ALJ’s decision. 14 B. Severity of Headaches 15 At step two of the sequential evaluation process, the ALJ must determine 16 whether the claimant has a “severe” impairment. See 20 C.F.R. §§ 404.1520(c), 17 416.920(c). The fact that a claimant has been diagnosed with and treated for a 18 medically determinable impairment does not necessarily mean the impairment is 19 “severe,” as defined by the Social Security Regulations. See, e.g., Fair v. Bowen, 20 12 DECISION AND ORDER – JARVIS v COLVIN 2:16-CV-00791-VEB 1 885 F.2d 597, 603 (9th Cir. 1989); Key v. Heckler, 754 F.2d 1545, 1549-50 (9th Cir. 2 1985). To establish severity, the evidence must show the diagnosed impairment 3 significantly limits a claimant's physical or mental ability to do basic work activities 4 for at least 12 consecutive months. 20 C.F.R. § 416.920(c). 5 The step two analysis is a screening device designed to dispose of de minimis 6 complaints. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). “[A]n impairment 7 is found not severe . . . when medical evidence establishes only a slight abnormality 8 or a combination of slight abnormalities which would have no more than a minimal 9 effect on an individual’s ability to work.” Yuckert v. Bowen, 841 F.2d 303 (9th Cir. 10 1988) (quoting SSR 85-28). The claimant bears the burden of proof at this stage and 11 the “severity requirement cannot be satisfied when medical evidence shows that the 12 person has the ability to perform basic work activities, as required in most jobs.” 13 SSR 85-28. Basic work activities include: “walking, standing, sitting, lifting, 14 pushing, pulling, reaching, carrying, or handling; seeing, hearing, speaking; 15 understanding, carrying out and remembering simple instructions; responding 16 appropriately to supervision, coworkers, and usual work situations.” Id. 17 In this case, Plaintiff experiences painful headaches. She sought emergency 18 treatment for her symptoms on May 23, 2012. (T at 468). The record documents 19 consistent complaints and requests for relief from her headache pain. (T at 485, 497, 20 13 DECISION AND ORDER – JARVIS v COLVIN 2:16-CV-00791-VEB 1 504, 514, 1267, 2115, 1457, 2078, 2088). The ALJ found that several of Plaintiff’s 2 impairments were severe, but did not find that Plaintiff’s headaches constituted a 3 severe impairment. Plaintiff argues that this was an error. 4 This Court finds no error with regard to the ALJ’s decision. No medical 5 source opined that Plaintiff experienced work-related limitations as a result of her 6 headaches. Although the record documents her complaints, it also indicates that her 7 symptoms improved with treatment. (T at 485, 490, 496, 498, 526, 527, 741, 863, 8 1083, 1267, 1287, 1311, 1312, 1345, 1482, 1485, 1489, 1574, 1676, 1678). 9 Moreover, the step two analysis was resolved in Plaintiff’s favor, i.e. the ALJ 10 concluded that Plaintiff had severe impairments and proceeded with the sequential 11 analysis. See Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). As such, even if 12 the ALJ erred in not finding Plaintiff’s headaches to be a severe impairment, any 13 error in that regard was harmless because the ALJ considered these conditions when 14 determining Plaintiff’s RFC. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). 15 C. Medical Source Opinion Evidence 16 In disability proceedings, a treating physician’s opinion carries more weight 17 than an examining physician’s opinion, and an examining physician’s opinion is 18 given more weight than that of a non:-examining physician. Benecke v. Barnhart, 19 379 F.3d 587, 592 (9th Cir. 2004); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 20 14 DECISION AND ORDER – JARVIS v COLVIN 2:16-CV-00791-VEB 1 1995). If the treating or examining physician’s opinions are not contradicted, they 2 can be rejected only with clear and convincing reasons. Lester, 81 F.3d at 830. If 3 contradicted, the opinion can only be rejected for “specific” and “legitimate” reasons 4 that are supported by substantial evidence in the record. Andrews v. Shalala, 53 F.3d 5 1035, 1043 (9th Cir. 1995). 6 The courts have recognized several types of evidence that may constitute a 7 specific, legitimate reason for discounting a treating or examining physician’s 8 medical opinion. For example, an opinion may be discounted if it is contradicted by 9 the medical evidence, inconsistent with a conservative treatment history, and/or is 10 based primarily upon the claimant’s subjective complaints, as opposed to clinical 11 findings and objective observations. See Flaten v. Secretary of Health and Human 12 Servs., 44 F.3d 1453, 1463-64 (9th Cir. 1995). 13 An ALJ satisfies the “substantial evidence” requirement by “setting out a 14 detailed and thorough summary of the facts and conflicting clinical evidence, stating 15 his interpretation thereof, and making findings.” Garrison v. Colvin, 759 F.3d 995, 16 1012 (9th Cir. 2014)(quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). 17 “The ALJ must do more than state conclusions. He must set forth his own 18 interpretations and explain why they, rather than the doctors’, are correct.” Id. 19 Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. Ariz. 2014) 20 15 DECISION AND ORDER – JARVIS v COLVIN 2:16-CV-00791-VEB 1 On December 8, 2012, Dr. Jeffrey Alan Davis, Plaintiff’s treating psychiatrist, 2 completed a workers’ compensation certificate in which he noted that Plaintiff was 3 being seen for depression, had “uncontrolled symptoms” and “a lot of pain,” and 4 was going through a “stressful divorce.” (T at 2114). Dr. Davis indicated that 5 Plaintiff’s estimated work return date was January 2, 2013. (T at 2114). 6 submitted another form on February 1, 2013, stating a diagnosis of major 7 depression, recurrent, severe, and opining that Plaintiff could not return to work until 8 March 6, 2013. (T at 2110). He 9 On April 19, 2013, Dr. Davis stated that he believed Plaintiff “remains 10 disabled and has been disabled for over a year ….” (T at 1425). He explained that 11 he “support[ed] her claim for social security.” (T at 1425). 12 The ALJ did not specifically discuss Dr. Davis’s assessments. Although this 13 Court finds this to be a serious error, the circumstances presented here render the 14 error harmless. An ALJ’s error may be deemed harmless if, in light of the other 15 reasons supporting the overall finding, it can be concluded that the error did not 16 “affect[ ] the ALJ's conclusion.” Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 17 1190, 1197 (9th Cir. 2004); see also Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 18 1050, 1054-55 (9th Cir. 2006) (describing the harmless error test as whether “the 19 ALJ's error did not materially impact his decision”); Robbins v. Soc. Sec. Admin., 20 16 DECISION AND ORDER – JARVIS v COLVIN 2:16-CV-00791-VEB 1 466 F.3d 880, 885 (9th Cir.2006) (holding that an error is harmless if it was 2 “inconsequential to the ultimate nondisability determination”). 3 Here, Dr. Davis’s opinions were conclusory and lacked any supporting 4 clinical findings. The ALJ is not obliged to accept a treating source opinion that is 5 “brief, conclusory and inadequately supported by clinical findings.” Lingenfelter v. 6 Astrue, 504 F.3d 1028, 1044-45 (9th Cir. 2007) (citing Thomas v. Barnhart, 278 7 F.3d 947, 957 (9th Cir. 2002)). 8 Moreover, a treating physician’s conclusion that the claimant is “disabled” is 9 not entitled to any “special significance” because that issue is reserved to the 10 Commissioner. See 20 C.F.R. §404.1527(d)(3), § 404.1527(d)(1); SSR 96-5p, Ram 11 v. Astrue, 2012 U.S. Dist. LEXIS 183742 (C.D. Cal. Nov. 30, 2012) (“a treating 12 physician's opinion regarding the ultimate issue of disability is not entitled to any 13 special weight”); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) 14 (holding that treating physician's opinion is not binding on the ultimate 15 determination of disability). 16 In addition, the ALJ’s RFC determination was well-supported by the 17 assessments of several mental health professionals. Dr. Norman Aquilar, a 18 psychiatrist, performed a consultative examination in May of 2013. Dr. Aquilar 19 diagnosed major depressive disorder, recurrent, moderate (T at 1507) and assigned a 20 17 DECISION AND ORDER – JARVIS v COLVIN 2:16-CV-00791-VEB 1 Global Assessment of Functioning (“GAF”) score2 of 60-65 (T at 1508), which is 2 indicative of moderate symptoms or difficulty in social, occupational or educational 3 functioning. Amy v. Astrue, No. CV-11-319, 2013 U.S. Dist. LEXIS 2297, at *19 n.2 4 (E.D.Wa Jan. 7, 2013). 5 Dr. Aquilar found no limitation as to Plaintiff’s ability to follow oral and 6 written instructions, follow detailed instructions, or interact with the public, co- 7 workers, and supervisors. (T at 1508). He assessed no limitation as to attendance or 8 compliance with job/safety rules. (T at 1508). He opined that Plaintiff was mildly 9 limited with regard to responding to changes in a routine work setting and 10 moderately limited with respect to responding to work pressure in usual work 11 settings. (T at 1508). 12 In July of 2013, Dr. Sheri Simon, a non-examining State Agency review 13 consultant, assessed moderate limitations with regard to Plaintiff’s social functioning 14 and ability to maintain concentration, persistence, or pace. (T at 82). Dr. Simon 15 opined that Plaintiff was limited to unskilled work and simple, repetitive, routine 16 tasks. (T at 89). In September of 2013, Dr. Sidney Gold, another State Agency 17 review consultant, made similar findings. (T at 108). 18 2 “A GAF score is a rough estimate of an individual's psychological, social, and occupational 19 functioning used to reflect the individual's need for treatment." Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir. 1998). 20 18 DECISION AND ORDER – JARVIS v COLVIN 2:16-CV-00791-VEB 1 Dr. David Jarman, a clinical psychologist, testified at the administrative 2 hearing. He opined that Plaintiff suffered from anxiety disorder and symptoms of 3 depression. (T at 63). Dr. Jarman opined that Plaintiff was moderately limited with 4 regard to her social functioning, activities of daily living, and ability to maintain 5 concentration, persistence, and pace. (T at 64). He concluded that Plaintiff could not 6 perform fast-paced work and should have only occasional contact with the public. (T 7 at 64). 8 The ALJ translated these findings into the RFC determination, concluding that 9 Plaintiff was precluded from working in a fast-paced occupation and was limited to 10 occasional public contact. (T at 22). The vocational expert testified that a 11 hypothetical claimant with Plaintiff’s RFC could perform the unskilled jobs of 12 inspector, packager, and bagger. (T at 26). 13 “The opinions of non-treating or non-examining physicians may also serve as 14 substantial evidence when the opinions are consistent with independent clinical 15 findings or other evidence in the record.” Thomas v. Barnhart, 278 F.3d 947, 957 16 (9th Cir. 2002); see also see also 20 CFR § 404.1527 (f)(2)(i)(“State agency medical 17 and psychological consultants and other program physicians, psychologists, and 18 other medical specialists are highly qualified physicians, psychologists, and other 19 medical specialists who are also experts in Social Security disability evaluation.”). 20 19 DECISION AND ORDER – JARVIS v COLVIN 2:16-CV-00791-VEB 1 Plaintiff argues that the ALJ should have weighed the evidence differently and 2 resolved the conflict in favor of Dr. Davis’s assessments, but it is the role of the 3 Commissioner, not this Court, to resolve conflicts in evidence. Magallanes v. 4 Bowen, 881 F.2d 747, 751 (9th Cir. 1989); Richardson, 402 U.S. at 400. If the 5 evidence supports more than one rational interpretation, this Court may not 6 substitute its judgment for that of the Commissioner. Allen v. Heckler, 749 F.2d 577, 7 579 (9th 1984). If there is substantial evidence to support the administrative 8 findings, or if there is conflicting evidence that will support a finding of either 9 disability or nondisability, the Commissioner’s finding is conclusive. Sprague v. 10 Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 11 Here, the ALJ’s finding was supported by substantial evidence and should be 12 sustained. See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)(holding that if 13 evidence reasonably supports the Commissioner’s decision, the reviewing court 14 must uphold the decision and may not substitute its own judgment). 15 16 17 18 19 20 20 DECISION AND ORDER – JARVIS v COLVIN 2:16-CV-00791-VEB 1 2 3 V. CONCLUSION 4 After carefully reviewing the administrative record, this Court finds 5 substantial evidence supports the Commissioner’s decision, including the objective 6 medical evidence and supported medical opinions. It is clear that the ALJ thoroughly 7 examined the record, afforded appropriate weight to the medical evidence, including 8 the assessments of the treating and examining medical providers and medical 9 experts, and afforded the subjective claims of symptoms and limitations an 10 appropriate weight when rendering a decision that Plaintiff is not disabled. This 11 Court finds no reversible error and because substantial evidence supports the 12 Commissioner’s decision, the Commissioner is GRANTED summary judgment and 13 that Plaintiff’s motion for judgment summary judgment is DENIED. 14 15 16 17 18 VI. ORDERS IT IS THEREFORE ORDERED that: Judgment be entered AFFIRMING the Commissioner’s decision and DISMISSING this action, and it is further ORDERED that 19 20 21 DECISION AND ORDER – JARVIS v COLVIN 2:16-CV-00791-VEB 1 2 3 The Clerk of the Court file this Decision and Order and serve copies upon counsel for the parties. DATED this 22nd day of December, 2016. 4 5 6 /s/Victor E. Bianchini VICTOR E. BIANCHINI UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 22 DECISION AND ORDER – JARVIS v COLVIN 2:16-CV-00791-VEB
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