Gabriel Octavio Tena Heras v. Nancy A. Berryhill, No. 2:2017cv01935 - Document 18 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Rozella A. Oliver. IT IS ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits. See Order for details. (dml)
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Gabriel Octavio Tena Heras v. Nancy A. Berryhill Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 GABRIEL OCTAVIO TENA HERAS, 12 Plaintiff, 13 14 15 Case No. CV 17-01935-RAO MEMORANDUM OPINION AND ORDER v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 16 17 18 I. 19 20 21 22 23 24 25 26 27 INTRODUCTION Plaintiff Gabriel Octavio Tena Heras (“Plaintiff”) challenges the Commissioner’s denial of his application for a period of disability, disability insurance benefits (“DIB”), and supplemental security income (“SSI”). For the reasons stated below, the decision of the Commissioner is AFFIRMED. II. PROCEEDINGS BELOW On June 3, 2013, Plaintiff protectively applied for SSI alleging disability beginning April 30, 2013. (Administrative Record (“AR”) 38, 43, 48-49.) His application was denied initially on July 26, 2013, and upon reconsideration on January 23, 2014. (AR 64, 75.) On January 31, 2014, Plaintiff filed a written 28 Dockets.Justia.com 1 request for hearing, and a hearing was held on January 7, 2016. 2 Represented by counsel and assisted by an interpreter, Plaintiff appeared and 3 testified, along with an impartial vocational expert (“VE”) and an impartial medical 4 expert. (AR 24-37.) On January 25, 2016, the Administrative Law Judge (“ALJ”) 5 found that Plaintiff had not been under a disability, pursuant to the Social Security 6 Act,1 since April 30, 2013. 7 Commissioner’s final decision when the Appeals Council denied Plaintiff’s request 8 for review. (AR 1.) Plaintiff filed this action on March 10, 2017. (Dkt. No. 1.) (AR 18.) (AR 82.) The ALJ’s decision became the 9 The ALJ followed a five-step sequential evaluation process to assess whether 10 Plaintiff was disabled under the Social Security Act. Lester v. Chater, 81 F.3d 821, 11 828 n.5 (9th Cir. 1995). At step one, the ALJ found that Plaintiff had not engaged 12 in substantial gainful activity since April 30, 2013, the alleged onset date (“AOD”). 13 (AR 13.) At step two, the ALJ found that Plaintiff has the following severe 14 impairments: arthritis, diabetes mellitus, hypertension, and coronary artery disease. 15 (Id.) At step three, the ALJ found that Plaintiff “does not have an impairment or 16 combination of impairments that meets or medically equals the severity of one of 17 the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” (AR 14.) Before proceeding to step four, the ALJ found that Plaintiff has the residual 18 19 functional capacity (“RFC”) to: [P]erform medium work . . . except this individual should not work at extremes of heat or cold, can occasionally, but not frequently climb ladders, and he should avoid working at unprotected heights. 20 21 22 23 24 (Id.) /// /// 25 26 27 28 1 Persons are “disabled” for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment expected to result in death, or which has lasted or is expected to last for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A). 2 1 At step four, based on Plaintiff’s RFC and the VE’s testimony, the ALJ 2 found that Plaintiff was capable of performing past relevant work as a drywall 3 applicator, and therefore the ALJ did not proceed to step five. (AR 17.) 4 Accordingly, the ALJ determined that Plaintiff has not been under a disability from 5 the AOD through the date of the decision. (AR 18.) 6 III. STANDARD OF REVIEW 7 Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s 8 decision to deny benefits. A court must affirm an ALJ’s findings of fact if they are 9 supported by substantial evidence and if the proper legal standards were applied. 10 Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). “‘Substantial evidence’ 11 means more than a mere scintilla, but less than a preponderance; it is such relevant 12 evidence as a reasonable person might accept as adequate to support a conclusion.” 13 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Robbins v. Soc. 14 Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). An ALJ can satisfy the substantial 15 evidence requirement “by setting out a detailed and thorough summary of the facts 16 and conflicting clinical evidence, stating his interpretation thereof, and making 17 findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citation omitted). 18 “[T]he Commissioner’s decision cannot be affirmed simply by isolating a 19 specific quantum of supporting evidence. Rather, a court must consider the record 20 as a whole, weighing both evidence that supports and evidence that detracts from 21 the Secretary’s conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 22 2001) (citations and internal quotation marks omitted). 23 susceptible to more than one rational interpretation,’ the ALJ’s decision should be 24 upheld.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing 25 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)); see Robbins, 466 F.3d at 26 882 (“If the evidence can support either affirming or reversing the ALJ’s 27 conclusion, we may not substitute our judgment for that of the ALJ.”). The Court 28 may review only “the reasons provided by the ALJ in the disability determination 3 “‘Where evidence is 1 and may not affirm the ALJ on a ground upon which he did not rely.” Orn v. 2 Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (citing Connett v. Barnhart, 340 F.3d 3 871, 874 (9th Cir. 2003)). 4 IV. DISCUSSION 5 Plaintiff raises the following issues for review: (1) whether the ALJ properly 6 considered the medical evidence in assessing Plaintiff’s RFC; (2) whether the ALJ 7 properly discredited Plaintiff’s testimony; and (3) whether the ALJ’s conclusion at 8 step four is supported by substantial evidence. (JS 3-4.) Plaintiff contends that the 9 ALJ erred in his consideration of Plaintiff’s testimony, and that the RFC assessment 10 and “step four” findings are not supported by substantial evidence. (See JS 4, 8, 11 16.) The Commissioner disagrees. (See JS 8, 12, 20.) For the reasons below, the 12 Court agrees with the Commissioner. A. 13 The ALJ’s Credibility Determination Is Supported By Substantial Evidence2 14 15 Plaintiff argues that the ALJ failed to properly consider Plaintiff’s subjective 16 testimony. (JS 9-10.) The Commissioner argues that the ALJ’s credibility findings 17 are supported by substantial evidence. (JS 16.) 1. 18 Plaintiff’s Testimony 19 Plaintiff testified with the assistance of an interpreter. (AR 30.) Plaintiff 20 stated that he previously worked in construction doing framing and drywall 21 handling. (Id.) At his job, Plaintiff lifted and carried 50 pounds by himself without 22 using moving equipment devices. (AR 30-31.) 23 Plaintiff explained that he stopped working in 2013 because he began to feel 24 ill and suffered from fainting spells. (AR 31.) Plaintiff stated that his sugar level 25 was “out of control” and he had a lot of pain in his knees and joints. (Id.) Plaintiff 26 27 28 2 Because subjective symptom testimony is one factor that the ALJ must consider when assessing a claimant’s RFC, the Court addresses the issue of credibility first before discussing the overall RFC determination. 4 1 also stated that he has problems with his hands, and his fingers are “twisting more 2 and more.” (AR 32.) Plaintiff can lift and carry about the weight of a gallon of 3 milk, but he cannot hold the weight very long because his joints hurt. (Id.) 4 Plaintiff testified that he can stand for a maximum of 50 minutes before his 5 feet begin to fall asleep and cause him pain. (Id.) Plaintiff explained that he also 6 has problems sitting because all of his joints hurt from his waist up to his neck, “all 7 the joints on [his] body.” (Id.) Plaintiff stated that he can sit for 15 to 20 minutes 8 before he needs to walk. (Id.) When he gets up, he feels like he is going to faint, 9 which Plaintiff thinks is due to his high blood pressure. (AR 32-33.) Plaintiff also 10 testified that he can walk for only one block before he feels a “burning sensation” in 11 his chest and needs to sit. (AR 33.) Plaintiff stated that he assumes that his chest 12 pain is caused by a problem with his heart. (Id.) 13 Plaintiff testified that he is taking medication for his heart, pain, cholesterol, 14 and diabetes as prescribed. (Id.) Plaintiff stated that he does not know if he has 15 side effects from his medications, but sometimes he feels ill because he takes a lot 16 of medication. (AR 34.) Plaintiff is not taking medication for depression, but he 17 attended six months of psychological classes that ended about a month and a half 18 before the hearing. (AR 33-34.) 19 20 21 During the day, Plaintiff takes his grandson to school, picks him up, and stays at home with him while Plaintiff waits for his wife to come home. (AR 33.) 2. Applicable Legal Standards 22 “In assessing the credibility of a claimant’s testimony regarding subjective 23 pain or the intensity of symptoms, the ALJ engages in a two-step analysis.” Molina 24 v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (citing Vasquez v. Astrue, 572 F.3d 25 586, 591 (9th Cir. 2009)). “First, the ALJ must determine whether the claimant has 26 presented objective medical evidence of an underlying impairment which could 27 reasonably be expected to produce the pain or other symptoms alleged.” Treichler 28 v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (quoting 5 1 Lingenfelter, 504 F.3d at 1036) (internal quotation marks omitted). If so, and if the 2 ALJ does not find evidence of malingering, the ALJ must provide specific, clear 3 and convincing reasons for rejecting a claimant’s testimony regarding the severity 4 of his symptoms. Id. The ALJ must identify what testimony was found not 5 credible and explain what evidence undermines that testimony. 6 Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). “General findings are 7 insufficient.” Lester, 81 F.3d at 834. 3. 8 Holohan v. Discussion 9 “After careful consideration of the evidence,” the ALJ found that Plaintiff’s 10 “medically determinable impairments could reasonably be expected to cause some 11 of the alleged symptoms,” but found that Plaintiff’s “statements concerning the 12 intensity, persistence and limiting effects of these symptoms are not entirely 13 credible.” (AR 15.) The ALJ relied on the following reasons: (1) lack of objective 14 medical evidence to support the alleged severity of symptoms; (2) activities of daily 15 living; (3) routine and conservative treatment; and (4) lack of mental health 16 treatment. (AR 16-17.) No malingering allegation was made, and therefore, the 17 ALJ’s reasons must be “clear and convincing.” a. Reason No. 1: Lack of Objective Medical Evidence 18 19 The ALJ found that the medical evidence “has not identified an impairment 20 that would correspond in severity to the claimant’s allegation.” (AR 15.) The lack 21 of supporting objective medical evidence cannot form the sole basis for discounting 22 testimony, but it is a factor that the ALJ may consider in making a credibility 23 determination. Burch, 400 F.3d at 681. 24 The ALJ noted that Plaintiff has a history of uncontrolled type-II diabetes 25 mellitus, osteoarthrosis, joint pain involving the lower leg, and hypertensions. (AR 26 15; see, e.g., AR 252-53, 262-78.) The ALJ then summarized Plaintiff’s medical 27 records. (AR 15-16.) 28 /// 6 1 X-rays taken in April 2012 showed generalized osteopenia, atherosclerotic 2 vessel disease, mild thoracic scoliosis, and hypertrophic degenerative changes in 3 the thoracic and lumbar spine. (AR 298.) In June 2012, x-rays of both knees were 4 negative, aside from mild spurring from the superior left patella. (AR 294.) X-rays 5 of Plaintiff’s right hand revealed degenerative changes at the index, middle, and 6 little finger distal interphalangeal (“DIP”) joints, most prominent in the middle 7 finger. 8 changes in the left index finger DIP joint. 9 Plaintiff’s right knee revealed mild spurring at the superior aspect of the patella, but 10 no evidence of acute fracture. (AR 280.) A May 2013 lab report showed high total 11 cholesterol of 228, high glucose of 189, and hemoglobin A1c of 8.0, noted as being 12 consistent with diabetes. (AR 254.) (AR 296.) X-rays of Plaintiff’s left hand also revealed degenerative (Id.) A February 2013 x-ray of 13 On October 17, 2013, Plaintiff was treated at High Desert Hospital for 14 multiple joint pain and medication refills. (AR 320-24.) Plaintiff was observed to 15 be alert and in no acute distress. (AR 321.) His lungs were clear to auscultation 16 bilaterally and his heart was of regular rate and rhythm with no murmurs, rubs, or 17 gallops. (Id.) A diabetic foot exam showed normal monofilament sensation, no 18 calluses, no ulcers, and normal pulses. (Id.) Examination of Plaintiff’s hands 19 showed Heberden’s nodes present in the DIP joints. (Id.) 20 In December 2013, x-rays showed very mild degenerative changes of the 21 interphalangeal joints of Plaintiff’s left hand. (AR 346.) Results were otherwise 22 unremarkable in this hand. (AR 346.) Plaintiff’s DIP joint of the right middle 23 finger had soft tissue swelling, moderate degenerative changes with a moderate-to- 24 large posterior osteophyte formation, and some flexion deformity. (Id.) Mild 25 degenerative changes of the remaining DIP joints, minimal degenerative changes of 26 the proximal interphalangeal joints, and very minimal degenerative changes of the 27 first metacarpal phalangeal joint were also observed in Plaintiff’s right hand. (AR 28 347.) Plaintiff’s left knee joint showed very early and very mild generative 7 1 changes, and his right knee showed only minimal degenerative changes. (AR 347- 2 48.) 3 On February 10, 2015, Plaintiff underwent an exercise stress test. (AR 402.) 4 Due to abnormal results and chest pains, Plaintiff was referred to Antelope Valley 5 Hospital and admitted. (AR 364, 368, 375, 382.) Upon admission, his blood 6 pressure and vital signs were largely normal. (AR 375-76, 380.) No cardiovascular 7 abnormalities were noted, and Plaintiff’s cardiovascular and respiratory 8 assessments were normal. (AR 376; see AR 380.) A coronary angiography was 9 performed, which revealed some obstruction in the left anterior descending artery, 10 right coronary artery, and right posterior descending artery. (AR 385.) Plaintiff 11 was diagnosed with hypertension, type-II diabetes, dyslipidemia, chest pain, and 12 unstable angina, most likely secondary to coronary artery disease. (AR 377.) 13 The ALJ thoroughly considered Plaintiff’s medical records and found that 14 they did not support Plaintiff’s allegations of disabling symptoms and limitations. 15 See Reddick, 157 F.3d at 725. The ALJ was permitted to rely on the normal 16 examination results and lack of significant medical findings in assessing the 17 credibility of Plaintiff’s testimony. See Garza v. Astrue, 380 F. App’x 672, 674 18 (9th Cir. 2010) (finding that an ALJ properly considered a claimant’s normal exam 19 findings when noting a lack of objective medical evidence to support the claimant’s 20 allegations). 21 22 23 The Court finds that this is a clear and convincing reason, supported by substantial evidence, for discounting Plaintiff’s credibility. b. Reason No. 2: Activities of Daily Living 24 The ALJ noted that Plaintiff takes his 7-year-old grandson to school and 25 cares for him at home after school, which is “not consistent with an assertion of 26 total disability.” (AR 16-17.) As part of the credibility determination, the ALJ may 27 consider inconsistencies between the claimant’s testimony and his other statements, 28 conduct, and daily activities. See Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th 8 1 Cir. 1997); Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). 2 Inconsistencies between symptom allegations and daily activities may act as a clear 3 and convincing reason to discount a claimant’s credibility. See Tommasetti v. 4 Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); Bunnell v. Sullivan, 947 F.2d 341, 346 5 (9th Cir. 1991). But a claimant need not be utterly incapacitated to obtain benefits. 6 Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). “If a claimant is able to spend a 7 substantial part of his day engaged in pursuits involving the performance of 8 physical functions that are transferable to a work setting, a specific finding as to this 9 fact may be sufficient to discredit a claimant’s allegations.” Morgan v. Comm’r of 10 Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999); accord Vertigan v. Halter, 260 11 F.3d 1044, 1050 (9th Cir. 2001). 12 The fact that Plaintiff cares for his grandson does not detract from his overall 13 credibility, as the record does not show that this consumed a substantial part of 14 Plaintiff’s day. Further, the mere ability to perform some tasks is not necessarily 15 indicative of an ability to perform work activities because “many home activities 16 are not easily transferable to what may be the more grueling environment of the 17 workplace, where it might be impossible to periodically rest or take medication.” 18 Fair, 885 F.2d at 603; see also Molina, 674 F.3d at 1112-13 (the ALJ may discredit 19 a claimant who “participat[es] in everyday activities indicating capacities that are 20 transferable to a work setting”). The critical difference between such activities 21 “and activities in a full-time job are that a person has more flexibility in scheduling 22 the former . . . , can get help from other persons . . . , and is not held to a minimum 23 standard of performance, as she would be by an employer.” Bjornson v. Astrue, 24 671 F.3d 640, 647 (7th Cir. 2012) (cited with approval in Garrison v. Colvin, 759 25 F.3d 995, 1016 (9th Cir. 2014)). Here, Plaintiff testified that he takes his grandson 26 to and from school, and then his grandson is with him while they wait for Plaintiff’s 27 wife to come home. (AR 33.) The ALJ assumed that caring for a young child “can 28 be quite demanding emotionally, without any particular assistance.” (AR 17.) But 9 1 without additional information about the nature of Plaintiff’s childcare activities, 2 this cannot be the basis for an adverse credibility finding. See Trevizo v. Berryhill, 3 871 F.3d 664, 682 (9th Cir. 2017) (finding that, with almost no information in the 4 record about the claimant’s childcare activities, “the mere fact that [the claimant] 5 cares for small children does not constitute an adequately specific conflict with her 6 reported limitations”). 7 8 The Court finds that this reason is not a clear and convincing reason, supported by substantial evidence, to discount Plaintiff’s credibility. c. Reason No. 3: Routine and Conservative Treatment 9 10 The ALJ also observed that Plaintiff’s treatment for physical impairments 11 “has not been so extensive or prolonged that work activity would be precluded for 12 any continuous period of twelve months” and that “treatment has been essentially 13 routine and/or conservative in nature.” 14 claimant’s credibility based on routine and conservative treatment. See Parra v. 15 Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) (“[E]vidence of ‘conservative 16 treatment’ is sufficient to discount a claimant’s testimony regarding severity of an 17 impairment.”); see also Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) 18 (rejecting a plaintiff’s complaint “that she experienced pain approaching the highest 19 level imaginable” as “inconsistent with the ‘minimal, conservative treatment’ that 20 she received”). (AR 17.) An ALJ may discount a 21 The ALJ noted that Plaintiff’s diabetes mellitus and hypertension are poorly 22 controlled, but there is no evidence of end organ damage, kidney problems, or 23 stroke symptoms. 24 hypertensive state has no effect on his ability to function. (Id.) The ALJ also noted 25 that Plaintiff’s ongoing treatment for his impairments is primarily for monitoring 26 and to refill prescriptions. (AR 17.) (AR 17.) Therefore, the ALJ concluded that Plaintiff’s 27 Although Plaintiff’s diabetes was previously noted as uncontrolled, records 28 also indicated that Plaintiff did not adhere to instructions and medication 10 1 compliance. (See AR 262-63.) Later, during routine visits at High Desert Health 2 Systems, Plaintiff was encouraged to continue his medications and his diet and 3 exercise plans. 4 primarily consisted of monitoring and medication, the ALJ permissibly discounted 5 Plaintiff’s credibility based on his conservative treatment plan. 6 Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments 7 that can be controlled effectively with medication are not disabling for the purpose 8 of determining eligibility for SSI benefits.”). 9 10 11 (See AR 418-21, 429, 431-33.) Because Plaintiff’s treatment See Warre v. The Court finds that this reason is a clear and convincing reason, supported by substantial evidence, to discount Plaintiff’s credibility. d. Reason No. 4: Lack of Mental Health Treatment 12 Finally, the ALJ noted that despite Plaintiff’s alleged depression, he did not 13 seek treatment from psychiatrists or psychologists. (AR 17.) The ALJ also noted 14 that Plaintiff has not taken any psychotropic medication or had any inpatient or 15 outpatient mental health counseling or treatment. (Id.) The ALJ stated that it was 16 reasonable to assume that someone with severe mental problems would seek 17 treatment in an attempt to lessen the condition or its effects. (Id.) The ALJ 18 determined that Plaintiff’s failure to seek treatment indicates that his limitations are 19 not as severe as alleged. (Id.) 20 First, the Ninth Circuit has criticized the practice of discrediting evidence 21 based on a lack of treatment “both because mental illness is notoriously 22 underreported and because it is a questionable practice to chastise one with a mental 23 impairment for the exercise of poor judgment in seeking rehabilitation.” 24 Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1299-300 (9th Cir. 25 1999) (internal quotation marks omitted) (citing Nguyen v. Chater, 100 F.3d 1462, 26 1465 (9th Cir. 1996)). 27 Second, Plaintiff’s treatment records do document some mental health 28 treatment, during which Plaintiff worked on ways to cope with his depression. (See 11 1 AR 414, 417, 424-26.) The ALJ was incorrect to assert that Plaintiff had not had 2 any mental health counseling or treatment. See Gallant v. Heckler, 753 F.2d 1450, 3 1456 (9th Cir. 1984) (error for an ALJ to ignore or misstate the competent evidence 4 in the record in order to justify his conclusion). 5 Moreover, Plaintiff primarily testified about his physical impairments and 6 limitations. (See AR 30-34.) The entirety of Plaintiff’s testimony regarding his 7 depression is contained in the following exchange between Plaintiff and his 8 counsel: Q: A: 9 10 11 Q: A: Are you taking any medication for depression? No, but I did have classes that lasted six months for psychological help. Okay, when did that end? Approximately a month and a half ago. 12 (AR 33-34.) Plaintiff’s limited mental health treatment is not a legitimate reason to 13 discredit his subjective complaints about his physical symptoms and limitations. 14 15 16 The Court finds that this reason is not a clear and convincing reason, supported by substantial evidence, to discount Plaintiff’s credibility. 4. Conclusion 17 Because the Court found that two of the ALJ’s reasons for discounting 18 Plaintiff’s credibility—activities of daily living and lack of mental health 19 treatment—are not clear and convincing, the Court must decide whether the ALJ’s 20 reliance on those reasons was harmless error. Carmickle v. Comm’r of Soc. Sec. 21 Admin., 533 F.3d 1155, 1162 (9th Cir. 2008). The relevant inquiry “is not whether 22 the ALJ would have made a different decision absent any error,” but whether the 23 ALJ’s decision is still “legally valid, despite such error.” Id. The “remaining 24 reasoning and ultimate credibility determination [must be] . . . supported by 25 substantial evidence in the record.” Id. (emphasis in original) (citing Batson v. 26 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004)). Here, given the 27 discussion above concerning the lack of objective medical evidence and Plaintiff’s 28 12 1 routine and conservative treatment, the Court concludes the ALJ’s credibility 2 finding is legally valid and supported by substantial evidence. 3 B. The RFC Is Supported By Substantial Evidence 4 Plaintiff argues that the ALJ failed to properly consider the medical evidence. 5 (JS 4.) The Commissioner argues that the evidence of record supports the ALJ’s 6 RFC assessment. (JS 6-8.) 7 1. Applicable Legal Standards 8 The ALJ is responsible for assessing a claimant’s RFC “based on all of the 9 relevant medical and other evidence.” 20 CFR §§ 404.1545(a)(3), 404.1546(c). In 10 doing so, the ALJ may consider any statements provided by medical sources, 11 including statements that are not based on formal medical examinations. 12 20 CFR §§ 404.1513(a), 404.1545(a)(3). An ALJ’s determination of a claimant’s 13 RFC must be affirmed “if the ALJ applied the proper legal standard and his 14 decision is supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 15 1217 (9th Cir. 2005); accord Morgan, 169 F.3d at 599. “An ALJ can satisfy the 16 ‘substantial evidence’ requirement by ‘setting out a detailed and thorough summary 17 of the facts and conflicting evidence, stating his interpretation thereof, and making 18 findings.’” Garrison, 759 F.3d at 1012 (citation omitted). See 19 2. Discussion 20 In determining Plaintiff’s RFC, the ALJ “considered all symptoms and the 21 extent to which these symptoms can reasonably be accepted as consistent with the 22 objective medical evidence and other evidence . . . [and] also considered opinion 23 evidence” in accordance with social security regulations. (AR 14.) 24 As discussed above, the ALJ thoroughly summarized the objective medical 25 evidence and found that it did not identify an impairment that was as severe as 26 Plaintiff alleged. (See AR 15-16.) The ALJ also gave “great weight” to the opinion 27 of John W. Pollard, M.D., a medical expert specializing in internal medicine, who 28 reviewed Plaintiff’s medical evidence and testified at the administrative hearing. 13 1 (AR 16; see AR 24-29.) Dr. Pollard summarized Plaintiff’s medical records and 2 found that he was capable of medium work, with occasional climbing of ladders, no 3 extremes of heat and cold, and no working at unprotected heights due to the 4 possibility of hypoglycemia. (AR 26-29.) 5 Plaintiff contends that his impairments preclude work at the medium level 6 and that he is unable to perform his previous work on a full-time basis. (JS 5.) 7 Plaintiff therefore argues that the ALJ erred by adopting the medical expert’s 8 verbatim testimony regarding Plaintiff’s limitations. (Id.) However, as the ALJ 9 noted, no treating physician provided an opinion on Plaintiff’s physical limitations. 10 (AR 16.) The ALJ considered the “totality of evidence” and gave the sole opinion 11 testimony “great weight.” (Id.) In the absence of a contrary opinion by a treating 12 physician, the ALJ was entitled to rely upon the consultative opinion of Dr. Pollard. 13 See Morgan, 169 F.3d at 600 (“Opinions of a nonexamining, testifying medical 14 advisor may serve as substantial evidence when they are supported by other 15 evidence in the record and are consistent with it.”) (citing Andrews v. Shalala, 53 16 F.3d 1035, 1041 (9th Cir. 1995)); Ruiz v. Colvin, 638 F. App’x 604, 606 (9th Cir. 17 2016) (finding that the ALJ did not err in giving the greatest weight to non- 18 examining state agency medical consultants because “the ALJ found their opinions 19 consistent with the greater medical record, progress and treating notes, and [the 20 plaintiff]’s description of her daily activities”); Ortiz v. Astrue, 2009 WL 1516320, 21 at *8 (E.D. Cal. May 29, 2009) (finding that the ALJ properly considered the 22 medical evidence when no treating physician indicated any specific functional 23 limitations and no treating physician’s opinion contradicted the opinions of the state 24 agency medical consultants). 25 “Based on the totality of the evidence,” the ALJ concluded that Plaintiff’s 26 pain is caused by degenerative changes and osteoarthritis, and Plaintiff’s 27 impairments limit his ability to climb ladders, work at extremes of heat or cold, and 28 work at unprotected heights. (AR 17.) The ALJ acknowledged that Plaintiff has 14 1 limitations in his ability to perform some work functions, but the ALJ determined 2 that the “evidence as a whole” did not establish that Plaintiff is unable to perform 3 work that is within the range of the RFC. (Id.) 4 In sum, the Court finds that the ALJ’s RFC assessment is supported by 5 substantial evidence. See Arrieta v. Astrue, 301 F. App’x 713, 715 (9th Cir. 2008) 6 (finding that substantial evidence supported the RFC determination when the ALJ 7 properly evaluated the opinion evidence and relied on supporting medical reports 8 and testimony). 9 C. 10 The ALJ’s Step Four Findings are Supported By Substantial Evidence 11 At step four, the ALJ relied on the VE’s testimony that Plaintiff’s past 12 relevant work as a drywall applicator was consistent with the assessed RFC. (AR 13 17.) The ALJ therefore concluded that Plaintiff was able to perform his past work 14 as it is actually and generally performed. (AR 18.) 15 Plaintiff contends that that ALJ failed to properly develop the record and 16 erred in relying on the VE’s “defective” testimony to find that Plaintiff was capable 17 of performing his past relevant work. (JS 16.) The claimant has the burden of 18 proving disability and showing that he cannot perform his past relevant work. 19 Burch, 400 F.3d at 679; Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001). 20 However, “the ALJ has a special duty to fully and fairly develop the record and to 21 assure that the claimant’s interests are considered,” even when the claimant is 22 represented by counsel. Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). This 23 duty to develop the record is triggered “only when there is ambiguous evidence or 24 when the record is inadequate to allow for proper evaluation of the evidence.” 25 Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) (citing Tonapetyan, 242 26 F.3d at 1150). 27 In his testimony and Work History Report, Plaintiff asserted that he 28 frequently lifted 50 pounds without the assistance of equipment or devices. (AR 15 1 30-31, 204-13.) Plaintiff explained that he cut drywall and carried the pieces a 2 distance of up to 25 feet. (AR 205-13.) Plaintiff also provided information about 3 his job’s requirements for sitting, standing, and walking, among other activities. 4 (Id.) Plaintiff’s testimony and Work History Report therefore provide an adequate 5 record upon which the ALJ could evaluate the nature of Plaintiff’s past work. See 6 Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993) (stating that a claimant’s 7 own testimony about his past work is “highly probative” of the work’s 8 requirements). The ALJ did not err in not further developing the record on this 9 issue. See Mayes, 276 F.3d at 459-60. 10 Based on Plaintiff’s description, the VE stated that Plaintiff’s past work was 11 consistent with the Dictionary of Occupational Titles (“DOT”) listing of drywall 12 applicator. (See AR 34.) The ALJ posed a hypothetical to the VE that presented 13 the same limitations as contained in Plaintiff’s RFC, and the VE testified that 14 someone with those limitations “should be able to” perform the work of a drywall 15 applicator. 16 challenge the requirements of this occupation. (See AR 35-36.) (AR 34-35.) Plaintiff’s counsel declined to examine the VE or 17 Plaintiff argues that the occupation of drywall applicator is “sometimes 18 physically strenuous” and that a detailed description of a drywall applicator’s duties 19 includes potential hazards, such as working at heights, that are prohibited in his 20 RFC. (JS 17.) To support this contention, Plaintiff provides a compilation of 21 information and statistics from, inter alia, the United States Bureau of Labor 22 Statistics. (See JS, ex. A, at 5-6.) But the DOT listing upon which the VE relied 23 does not present these additional hazards, and to the extent that working at heights 24 or on ladders may be required, the listing limits climbing to “occasionally.” See 25 DICOT 842.684-014, 1991 WL 681861; see also Massachi v. Astrue, 486 F.3d 26 1149, 1153 (9th Cir. 2007) (“[T]he Social Security Administration relies primarily 27 on the Dictionary of Occupational Titles for ‘information about the requirements of 28 work in the national economy.’” (quoting Soc. Sec. Reg. 00-4p, 2000 WL 1898704 16 1 at *2)). Furthermore, Plaintiff did not assert that any of these hazards were present 2 as he actually performed the job. 3 description of his past work is also consistent with the limitations found in his RFC. 4 (Compare AR 14 with AR 30-31, 204-13.) (See AR 30-31, 204-13.) Plaintiff’s own 5 Accordingly, the Court finds that the ALJ did not err in relying on the VE’s 6 testimony that Plaintiff could perform his past work as it was actually and generally 7 performed. 8 V. 9 10 11 12 CONCLUSION IT IS ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. 13 14 15 DATED: February 2, 2018 ROZELLA A. OLIVER UNITED STATES MAGISTRATE JUDGE 16 17 18 19 NOTICE THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW, LEXIS/NEXIS, OR ANY OTHER LEGAL DATABASE. 20 21 22 23 24 25 26 27 28 17
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