Tracie Meyers v. Nancy A. Berryhill, No. 2:2017cv03457 - Document 21 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION by Magistrate Judge Alka Sagar. The decision of theCommissioner is AFFIRMED. (See Order for complete details) (afe)
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Tracie Meyers v. Nancy A. Berryhill Doc. 21 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION 11 12 13 14 15 16 17 18 TRACIE MEYERS, ) ) Plaintiff, ) ) v. ) ) NANCY A. BERRYHILL,1 ) Acting Commissioner of the ) Social Security Administration,) ) Defendant. ) ) Case No. CV 17-03457-AS MEMORANDUM OPINION 19 PROCEEDINGS 20 21 On May 8, 2017, Plaintiff filed a Complaint seeking review of the 22 23 24 25 26 27 28 denial of her application for Disability Insurance Benefits. Entry No. 1). The parties have consented to proceed (Docket before the undersigned United States Magistrate Judge. (Docket Entry Nos. 14, 19). On September 26, 2017, Defendant Administrative Record (“AR”). filed an Answer along (Docket Entry Nos. 16-17). with the The parties 1 Nancy A. Berryhill is now the Acting Commissioner of the Social Security Administration and is substituted in for Acting Commissioner Caroyln W. Colvin in this case. See 42 U.S.C. § 205(g). Dockets.Justia.com 1 filed a Joint Stipulation (“Joint Stip.”) on December 18, 2017, setting 2 forth their respective positions regarding Plaintiff’s claims. (Docket 3 Entry No. 18). 4 5 The Court has taken this matter under submission without oral 6 argument. See C.D. Cal. L.R. 7-15. 7 8 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 9 10 On February 9, 2011, Plaintiff, formerly employed as a 11 customer 12 recreational vehicle sales companies and as a service writer 13 for an automobile mechanic (see AR 51-52, 72, 336), filed an service person for telecommunications and 14 application for Disability Insurance Benefits, alleging an 15 inability to work because of a disabling condition since 16 October 22, 2010. (See AR 290-92). The Commissioner denied 17 Plaintiff’s application initially on June 28, 2012 and on 18 reconsideration on July 10, 2012 (AR 107-112, 159-64). 19 20 On June 3, 2013, the Administrative Law Judge (“ALJ”), 21 Dale A. Garwal, heard testimony from Plaintiff, who was 22 represented by counsel, and vocational expert (“VE”) Kristin 23 Cicero. (See AR 49-67). On June 21, 2013, the ALJ issued a 24 decision denying Plaintiff’s application. (See AR 135-43). 25 After determining that Plaintiff had severe impairments –26 “generalized anxiety disorder, and degenerative disc disease 27 28 2 1 of the cervical and lumbar spine” (AR 138)2 –- but did not 2 have an impairment or combination of impairments that met or 3 medically equaled the severity of one of the listed 4 impairments (AR 138-39), the ALJ found that Plaintiff had the 5 residual functional capacity (“RFC”)3 to perform sedentary 6 work4 with the following limitations: lifting/carrying 5 7 pounds frequently and 10 pounds occasionally; standing/walking 8 for 2 hours and sitting for 6 hours in an 8-hour workday; 9 bending/stooping occasionally; pushing/pulling with the 10 nondominant left upper extremity occasionally; and limited to 11 simple routine tasks with occasional public and co-worker 12 contact. (AR 139-41). The ALJ then determined that Plaintiff 13 was not able to perform any past relevant work (AR 141), but 14 could perform jobs existing in significant numbers in the 15 national economy, and was therefore not disabled within the 16 meaning of the Social Security Act. (AR 142-43). 17 18 Plaintiff requested that the Appeals Council review the 19 ALJ’s decision. (See AR 203). On November 24, 2014, the 20 Appeals Council vacated the ALJ’s decision and remanded the 21 22 23 2 The ALJ found that Plaintiff’s other impairments –- Hepatitis C, obesity and knee discomfort –- were nonsevere. (AR 138). 3 A Residual Functional Capacity is what a claimant can still do See 20 C.F.R. § 404.1545(a)(1). 24 despite existing exertional and nonexertional limitations. 25 4 “Sedentary work involves lifting no more than 10 pounds at a 26 time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one 27 which involves sitting, a certain amount of walking and standing is 28 often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. § 404.1567(a). 3 1 matter in order for the Administrative Law Judge to do the 2 following: 3 4 (1) ”Update the record” to “include, as available, 5 records from the claimant’s treating and examining 6 sources, medical opinions about what the claimant 7 could still do despite her impairments, singly and in 8 combination”; (2) “Give consideration to the third 9 party statement of Karen Lopez”; (3) “Give further 10 consideration 11 functional capacity during the entire period at issue 12 and provide rationale with specific references to 13 evidence 14 limitations”; and (4) “If warranted by the expanded 15 record, 16 vocational 17 assessed limitations on the claimant’s occupational 18 base[.]” (See AR 148-50). of to the record obtain expert claimant’s in support supplemental to maximum clarify of evidence the effect residual assessed from of a the 19 20 On April 6, 2016, the ALJ heard testimony from Plaintiff, 21 who was represented by counsel, and VE Sharon Spaventa. (See 22 AR 70-79). On June 8, 2016, the ALJ issued a decision denying 23 Plaintiff’s application. (See AR 24-34). Applying the five24 step sequential process, the ALJ found at step one that 25 Plaintiff had not engaged in substantial gainful activity 26 since October 22, 2010, the alleged onset date. (AR 27). At 27 step two, the ALJ determined that Plaintiff had the following 28 severe impairments: “lumbar and cervical degenerative disc 4 1 disease, and generalized anxiety disorder” (AR 27).5 At step 2 three, the ALJ determined that Plaintiff does not have an 3 impairment or combination of impairments that meet or 4 medically equal the severity of any of the listings enumerated 5 in the regulations (AR 27-28). The ALJ found that Plaintiff 6 had the RFC to perform sedentary work with the following 7 limitations: lifting 8 5 pounds frequently and 10 pounds 9 occasionally; standing for 2 hours and sitting for 6 10 hours in an 8-hour workday; bending and stooping 11 occasionally; “occasional use of the nondominant left 12 upper 13 public and co-worker contact; and limited to simple 14 routine tasks. extremity for pushing/pulling”; occasional (AR 28-33). 15 16 At step four, the ALJ determined that Plaintiff was not able 17 to perform any past relevant work (AR 33). At step five, the 18 ALJ found, based on the testimony of VE Cicero at the June 3, 19 2013 hearing, that Plaintiff could perform jobs existing in 20 significant numbers in the national economy, namely, inspector 21 (Dictionary of Occupational Titles (“DOT”) 669.687-014) and As a result of these 22 sorter (DOT 521.687-086) (AR 34). 23 findings, the ALJ concluded that Plaintiff was not disabled 24 within the meaning of the Social Security Act. (Id.). 25 26 27 28 5 The ALJ found that Plaintiff’s other impairments –- Hepatitis C, obesity, headaches and knee discomfort –- were nonsevere, and that Plaintiff’s migraines did not meet the durational requirements. (AR 27). 5 1 The Appeals Council denied Plaintiff’s request for review 2 of the ALJ’s Decision on March 20, 2017. (See AR 1-3, 19). 3 Plaintiff now seeks judicial review of the ALJ’s decision, 4 which stands as the final decision of the Commissioner. 42 5 U.S.C. §§ 405(g), 1383(c). 6 STANDARD OF REVIEW 7 8 9 This Court reviews the Administration’s decision to 10 determine if it is free of legal error and supported by 11 substantial evidence. See Brewes v. Comm’r, 682 F.3d 1157, 12 1161 (9th Cir. 2012). “Substantial evidence” is more than a 13 mere scintilla, but less than a preponderance. Garrison v. 14 Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). To determine 15 whether substantial evidence supports a finding, “a court 16 must consider the record as a whole, weighing both evidence 17 that supports and evidence that detracts from the 18 [Commissioner’s] conclusion.” Aukland v. Massanari, 257 F.3d 19 1033, 1035 (9th Cir. 2001) (internal quotation omitted). As 20 a result, “[i]f the evidence can support either affirming or 21 reversing the ALJ’s conclusion, [a court] may not substitute 22 [its] judgment for that of the ALJ.” Robbins v. Soc. Sec. 23 Admin., 466 F.3d 880, 882 (9th Cir. 2006). 24 25 PLAINTIFF’S CONTENTIONS 26 27 Plaintiff alleges that the ALJ failed to properly assess: 28 (1) the opinion of consultative examiner, Dr. Moore; and (2) 6 1 the opinion of consultative examiner, Dr. Moore, to the 2 extent that the ALJ discredited Plaintiff’s 3 regarding handling and fingering limitations. 6 testimony (See Joint 4 Stip. at 3-6, 10-13, 17). 5 DISCUSSION 6 7 After consideration of the record as a whole, the Court 8 9 finds that 10 the Commissioner’s findings are supported by substantial 11 evidence and 12 are free from material legal error. 13 14 A. The ALJ’s Error in Assessing the Opinion of Examining 15 Physician, Robert Moore, M.D., was Harmless 16 17 Plaintiff asserts that the ALJ erred in failing to 18 address the opinion of examining physician, Dr. Moore, about 19 Plaintiff’s left upper extremity limitations, and that such 20 error was not harmless. (See Joint Stip. at 3-6, 10-11). 21 Defendant concedes that the ALJ erred in failing to address 22 Dr. Moore’s opinion about Plaintiff’s upper left extremity 23 6 Although Plaintiff characterizes her second claim as a challenge 24 to the ALJ’s adverse credibility determination, Plaintiff is only contesting the ALJ’s rejection of her testimony regarding symptoms 25 causing handling and fingering limitations as a basis for failing to properly assess Dr. Moore’s opinion regarding those limitations. (See 26 Joint Stip. at 17). However, the record does not support Plaintiff’s claim. The ALJ did not fail to assess Dr. Moore’s limitations based on 27 an adverse credibility determination regarding Plaintiff’s testimony. Therefore, Plaintiff’s second claim appears to be a reassertion of her 28 first claim and will not be separately addressed. (See Joint Stip. at 12-13, 17). 7 1 limitations, but asserts that the error was harmless. 2 Joint Stip. at 6-10). (See The Court agrees. 3 4 An ALJ must take into account all medical opinions of 5 record. 20 C.F.R. § 404.1527(b). “Generally, a treating 6 physician’s opinion carries more weight than an examining 7 physician’s, and an examining physician’s opinion carries 8 more weight than a reviewing physician’s.” Holohan v. 9 Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); see also 10 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). 11 12 If a treating or examining doctor’s opinion is not 13 contradicted by another doctor, the ALJ can reject 14 opinion only for “clear and convincing reasons.” the Carmickle 15 v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 16 2008); Lester v. Chater, 81 F.3d at 830-31. If the treating 17 or examining doctor’s opinion is contradicted by another 18 doctor, the ALJ must provide “specific 19 reasons” for rejecting the opinion. and legitimate Orn v. Astrue, 495 F.3d 20 625, 632 (9th Cir. 2007); Lester v. Chater, supra. 21 22 On June 25, 2012, Robert A. Moore, M.D., prepared a 23 report following a complete neurological evaluation of (See AR 505-09). Based on Plaintiff’s 24 Plaintiff. 25 complaints/statements (see AR 505), a review of Plaintiff’s 26 medical records and Plaintiff’s medical, family and social 27 history (see AR 506), the results of a physical examination 28 (see AR 506-07), and the results of a neurological 8 1 examination (see AR 507-08, Dr. Moore diagnosed Plaintiff 2 with “[m]ild cervical spondylosis with possible associated 3 left C5 radiculopathy,” “[b]iomechancial low back pain” and 4 “[m]uscle contraction headaches.” (See AR 508). Dr. Moore 5 opined that Plaintiff had the following limitations: with 6 respect to Plaintiff’s left arm, she “can occasionally but 7 not frequently or continuously push and pull” and “she would 8 have slight difficulty operating hand controls and moderate 9 difficulty using tools”; with respect to Plaintiff’s left 10 hand and fingers, “[s]he can perform frequent simple gripping 11 and distal fine coordinated movements”; Plaintiff has 12 unrestricted use of the right upper extremity; Plaintiff can 13 stand and walk for 6 hours out of an 8-hour workday, in 214 hour intervals; Plaintiff can sit on an unrestricted basis; 15 Plaintiff can bend and stoop frequently; Plaintiff can 16 operate foot controls; Plaintiff is cognitively intact; and 17 Plaintiff “would have difficulty lifting and carrying more 18 than 25 pounds on an occasional basis and 10 to 10 pounds on 19 a more frequent basis.” (See AR 508). 20 21 The ALJ summarized Dr. Moore’s report, including Dr. 22 Moore’s opinion. (See AR 30). After summarizing most of the 23 medical evidence and Plaintiff’s testimony, and after stating 24 that “[t]he established residual functional capacity 25 addresses the claimant’s left upper extremity limitation as 26 credibly evaluated by consultative examiner Dr. Moore, 27 indicating occasional overhead reaching with the nondominant 28 left upper extremity” (see AR 31-32), the ALJ stated: “The 9 1 medical opinion of consultative examiner Dr. Moore is fully 2 credible and given great weight based upon supportability 3 with medical signs and laboratory findings, and consistency 4 with the record (Exhibit 6F) including the minimal findings 5 of Drs. Musaffer (Exhibit 21F) and Dr. Ellie Rogers (Exhibit 6 15F) of the claimant’s treating facility who declined to 7 prescribe medications sought by the claimant.” (AR 32). 8 9 As Defendant concedes (see Joint. Stip. at 6), the ALJ 10 erred by failing to address Dr. Moore’s opinions that 11 Plaintiff can perform frequent simple gripping and distal 12 fine coordinated movements with her left hand and fingers and 13 that Plaintiff would have slight difficulty operating hand 14 controls and moderate difficulty using tools with her left 15 arm in the determination of whether Plaintiff could perform 16 other jobs. 17 18 The issue, as both Defendant and Plaintiff acknowledge 19 (see Joint Stip. at 5-11) is whether the ALJ’s error was 20 harmless. An ALJ’s error is harmless “when it is clear from 21 the record . . . that it was ‘inconsequential to the ultimate 22 nondisability determination.’” Tommasetti v. Astrue, 533 F.3d 23 1035, 1038 (9th Cir. 2008)(citation omitted); see also 24 Carmickle v. Commissioner, 533 F.3d 1155, 1162 (9th Cir. 25 2008)(“[T]he relevant inquiry in this context is not whether 26 the ALJ would have made a different decision absent any 27 error, . . ., it is whether the ALJ’s decision remains 28 legally valid, despite such error.”); Burch v. Barnhart, 400 10 1 F.3d 676, 679 (9th Cir. 2005)(“A decision of the ALJ will not 2 be reversed for errors that are harmless.”). 3 4 Plaintiff concedes that the ALJ’s failure to address Dr. 5 Moore’s opinion that Plaintiff can perform “distal fine 6 coordinated movements with [her] left hand and fingers” is 7 harmless error, because Plaintiff likely can still meet the 8 requirements of the jobs that the ALJ found Plaintiff could 9 do (inspector, Dictionary of Occupational Titles [“DOT”] 10 669.687-014 [requires occasional fingering]; sorter, 11 521.687-086 [requires frequent fingering])(see AR 34). 12 Joint Stip. at 5). DOT (See Consequently, this aspect of Dr. Moore’s 13 opinion is not at issue. However, Plaintiff contends that 14 Dr. Moore’s opinion that Plaintiff “can perform frequent 15 simple gripping” with “the left hand and fingers” renders 16 Plaintiff unable to perform these jobs because they require 17 “frequent handling,” which is more than “simple gripping.” 18 (Joint Stip. at 5). 19 20 Respondent asserts that the ALJ’s error was harmless, 21 because (1) the record as a whole, i.e., Dr. Moore’s physical 22 and neurological examinations of Plaintiff, a Sierra Vista 23 Family Medical Clinic progress note dated November 29, 2012, 24 a Clinicas note dated July 25, 2014, physical examinations of 25 Plaintiff on August 14, 2013, September 4, 2013, December 4, 26 2013, January 13, 2015, January 27, 2015, and July 25, 2014, 27 and an x-ray of Plaintiff’s left shoulder dated June 15, 2011 28 fails to support Dr. Moore’s opinions about Plaintiff’s 11 1 limitations with her left upper extremity in gripping, 2 operating hand controls and using tools (see Joint Stip. at 3 6-7, citing AR 482, 506-08, 559-60, 567, 571, 596, 604, 620, 4 635, 690); (2) Doctor Moore’s opinion that Plaintiff is 5 limited to “frequent simple gripping” with her left hand is 6 not inconsistent with the requirement of both jobs the ALJ 7 found that Plaintiff could do (inspector, DOT 669.687-014; 8 sorter, DOT 521.687-086) (see AR 34), and alternatively, 9 Plaintiff is able to perform the frequent handling 10 requirements of both jobs based on the unrestricted use of 11 her right upper extremity; and (3) Doctor Moore’s opinion 12 that Plaintiff “would have slight difficulty operating hand 13 controls and moderate difficulty using tools” with her left 14 arm is not inconsistent with the requirement of both jobs the 15 ALJ found Plaintiff could do, and alternatively, Plaintiff is 16 able to perform these functions based on the unrestricted use 17 of her right upper extremity (see Joint Stip. at 8-9). 18 Although 19 contention Defendant that the cites record did evidence not to support support Dr. her Moore’s 20 opinion about Plaintiff’s left upper extremity limitations as 21 to gripping, operating hand controls and using tools, there 22 is no indication that the ALJ considered Dr. Moore’s opinion 23 about Plaintiff’s limitations in these areas, and the ALJ did 24 not cite to or assess the evidence on which Respondent 25 relies. Therefore, it not clear from the record that the 26 ALJ’s failure to consider Dr. Moore’s opinion regarding 27 Plaintiff’s limitations in these areas was inconsequential to 28 12 1 the ALJ’s ultimate determination that Plaintiff was not 2 disabled. See Tommasetti, 533 F.3d at 1038. 3 4 Nevertheless, the Court finds that the ALJ’s error in 5 failing to include Dr. Moore’s opinion about Plaintiff’s left 6 upper extremity limitations as to gripping, operating hand 7 controls and using tools, was harmless because, even with 8 those limitations, Plaintiff can perform the jobs of 9 inspector and sorter. 10 11 According to DOT 669.687-014, the job of dowel inspector 12 involves “inspect[ing] dowel pins for flaws, such as square 13 ends, knots, or splits, and discard[ing] defective dowels[,]” 14 and requires fingering occasionally and handling frequently, 15 and does not involve moving mechanical parts. 1991 WL 16 686074. 17 18 According to DOT 521.687-086, the job of nut sorter 19 involves “remov[ing] defective nuts and foreign matter from 20 bulk nut meat; [o]bserv[ing] nut meats on conveyor belt, and 21 pick[ing] out broken, shriveled and wormy nuts and foreign 22 matters, such as leaves and rocks” and “[p]lacing defective 23 nuts and foreign matter into containers, requires fingering 24 and handling frequently, and does not involve moving 25 mechanical moving parts. 1991 WL 674226. 26 27 Plaintiff has failed to cite, and the Court has been 28 unable to locate, any authority 13 supporting Plaintiff’s 1 assertion that the “frequent simple gripping” limitation 2 found by Dr. Moore (with respect to Plaintiff’s left hand and 3 fingers) is more restrictive than the 4 frequent handling” requirement of the inspector and sorter 5 jobs.7 It does not appear as if Plaintiff’s limitation to 6 “frequent simple gripping” with her left hand and fingers is 7 inconsistent with the “frequent handling” requirement of the 8 inspector and sorter jobs. Therefore, the ALJ’s error in 9 failing to address (or ask the vocational expert about) 10 Plaintiff’s limitation to “frequent simple gripping” with her 11 left hand and fingers was harmless. 12 13 Moreover, there is nothing in the DOT descriptions of the 14 inspector and sorter jobs indicating any requirements of 15 operating hand controls and using tools. Plaintiff relies on 16 the Occupational Information Network, commonly known as the 17 18 7 When Dr. Moore was asked to clarify his opinion in another 19 case in which a plaintiff was limited to “occasional and frequent simple 20 21 22 23 24 25 26 27 gripping,” Dr. Moore stated: As it relates to further clarification of these terms, if the claimant were required to use gripping for performing activities such as using pliers or screwdrivers, he would be able to do this on an occasional basis, as this would require relatively strong gripping. On the other hand, the claimant could frequently do such things as handle money, where gripping with full strength would not be required. . . . [¶] As it relates to a position such as a packager, this might prove to be difficult to the claimant, as forceful gripping would be required. On the other hand, he would likely be able to operate a cash register, with a frequency required by a cashier, or do such things as punch out tickets and seipe credit cards, as would be required by a ticket seller or taker. 28 Granados-Dominguez v. Astrue, 2009 WL 3526579, *5 (C.D. Cal.). 14 1 O*NET, Nguyen v. Colvin, 2014 WL 2207058, *2, n.1 (C.D. 2 Cal.), in an effort to show that the jobs of inspector and 3 sorter involved the tasks of “using hand controls to start 4 machines, adjusting processing equipment, and operating hand 5 trucks and lifts.” (See Joint Stip. at 5-6). However, 6 Plaintiff does not cite to any authority holding that a 7 federal court should or must rely on the O*NET to determine 8 the requirements of particular jobs which an ALJ has found 9 a claimant can perform. Indeed, the case Plaintiff cites -- 10 Lee v. Barnhart, 63 Fed.Appx. 291, 293 (9th Cir. 2003)(Joint 11 Stip. at 6), stating that “SSR 00-4p does not preclude 12 reliance on the O-NET; it merely provides that where there is 13 a conflict between the DOT and another source, and the ALJ 14 relies on the other source, the ALJ must explain his reasons 15 for doing so” -- is not applicable to the present case. 16 Since it appears that Plaintiff’s “slight difficulty 17 operating hand controls and moderate difficulty using tools” 18 with her left arm is not inconsistent with the operation of 19 hand controls and use of tools requirements of the inspector 20 and sorter jobs,8 the ALJ’s error in failing to address (or 21 ask the vocational expert about) these limitations was 22 harmless. 23 24 25 26 27 28 8 Based on these findings, the Court does not need to address Defendant’s alternative contentions regarding Plaintiff’s unrestricted use of her right upper extremity. 15 1 ORDER 2 3 For the foregoing reasons, the decision of 4 Commissioner is AFFIRMED. 5 6 LET JUDGMENT BE ENTERED ACCORDINGLY. 7 8 9 DATED: February 15, 2018 10 11 /s/ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 the
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