Brian Davis v. Michael J Astrue, No. 5:2011cv02033 - Document 18 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jay C. Gandhi. 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 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 BRIAN DAVIS, 12 Plaintiff, 13 14 v. 15 MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 16 Defendant. 17 ) Case No. ED CV 11-2033 JCG ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 18 19 Brian Davis ( Plaintiff ) challenges the Social Security Commissioner s 20 ( Defendant ) decision denying his application for disability benefits. Two issues 21 are presented for decision here: 22 1. whether the Administrative Law Judge ( ALJ ) erred at step five in 23 finding that Plaintiff could perform the positions of industrial cleaner, landscape 24 worker, and dishwasher, (see Joint Stip. at 3-7); and 25 2. whether the ALJ erred in rejecting the opinion of Plaintiff s treating 26 physician, Dr. Arvind Salwan. (See id. at 18-22.) The Court addresses and rejects Plaintiff s contentions below. 27 28 \ \ \ 1 A. The ALJ s Step Five Determination 2 Plaintiff first complains that the ALJ improperly concluded at step five, based 3 upon the testimony of the vocational expert ( VE ), that he could perform the duties 4 of an industrial cleaner, landscape worker, and dishwasher. Specifically, Plaintiff 5 argues that these positions, as described by the Dictionary of Occupational Titles 6 ( DOT ), conflict with his residual functional capacity ( RFC ) prohibiting him 7 from operat[ing] motorized equipment [and] work[ing] around unprotected 8 machinery. (Joint Stip. at 5-6; see AR at 19.) The Court, however, is unpersuaded. 9 As a matter of law, neither the DOT nor the testimony of a VE automatically 10 trumps when there is a conflict between the two. Massachi v. Astrue, 486 F.3d 11 1149, 1153 (9th Cir. 2007) (footnote omitted). Instead, if a conflict appears to exist, 12 the ALJ must obtain a reasonable explanation for that conflict. See SSR 00-4p, 13 2000 WL 1898704, at *4. 14 Here, no such conflict appears to exist between the DOT and the VE s 15 testimony. Three reasons guide that determination. 16 First, the positions of industrial cleaner and dish washer do not require 17 performance of all of the duties described by their DOT entries. These entries 18 merely require the performance of any combination of the described duties. See 19 DOT 381.687-018, DOT 318.687-010. Thus, even if the job duties described by the 20 DOT conflict with Plaintiff s RFC which, as shown below, is a doubtful 21 proposition those duties are not crucial to the position. Consequently, no inherent 22 conflict exists between Plaintiff s RFC and the DOT. See Ballesteros v. Astrue, 23 2011 WL 836656, at *4 (C.D. Cal. Mar. 8, 2011) (reasoning the same). At 24 minimum, then, the positions of industrial cleaner and dish washer are viable ones, 25 and any error pertaining to the landscape worker position is harmless. See Batson v. 26 Comm r of Soc. Sec., 359 F.3d 1190, 1197 (9th Cir. 2004) (harmless errors do not 27 warrant reversal). 28 Second, regarding the limitation against operating motorized equipment, the 2 1 Court notes that all three positions largely mandate the use of simple, handheld 2 tools. See, e.g., DOT 381.687-018 (handtrucks and steam cleaners), DOT 406.6873 010 (grass seed spreaders and general handtools), DOT 318.687-010 (brooms, mops, 4 and handtrucks). Where the DOT describes equipment that is arguably motorized, it 5 does not require their use. For instance, under the DOT, an industrial cleaner 6 [m]ay operate an industrial truck to transport materials. DOT 381.687-018. 7 Similarly, a landscape specialist has the option of mowing lawns with hand mower 8 or [a] power-driven lawnmower. DOT 406.687-010 (emphasis added). Likewise, a 9 dish washer may peel vegetables using [a] knife or peeling machine. DOT 10 318.687-010 (emphasis added). 11 Third, as for the limitation against working around unprotected machinery, the 12 DOT describes these positions as requiring no interaction with [m]oving 13 [m]ech[anical] [p]arts. See DOT 381.687-018, DOT 406.687-010, DOT 318.68714 010. Presumably, in the absence of any moving parts, there is nothing from which 15 one would need protection. Thus, it is unlikely that these positions involve 16 unprotected machinery. 17 Accordingly, the Court does not find error with the ALJ s step five 18 determination. 19 B. The ALJ's Rejection of Dr. Salwan s Treating Opinion 20 Plaintiff next asserts that the ALJ improperly rejected the opinion of 21 Plaintiff s treating physician, Dr. Salwan. (Joint Stip. at 18-22.) 22 As a general rule, more weight should be given to the opinion of a treating 23 source than to the opinion of doctors who do not treat the claimant. Lester v. 24 Chater, 81 F.3d 821, 830 (9th Cir. 1995). This is so because a treating physician is 25 employed to cure and has a greater opportunity to know and observe the patient as 26 an individual. Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987). 27 Where the treating doctor s opinion is contradicted by another doctor, the 28 [ALJ] may not reject this opinion without providing specific and legitimate reasons 3 1 supported by substantial evidence in the record[.] Lester, 81 F.3d at 830 (internal 2 quotation marks and citation omitted). The ALJ can meet the requisite specific and 3 legitimate standard by setting out a detailed and thorough summary of the facts and 4 conflicting clinical evidence, stating his interpretation thereof, and making findings. 5 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (internal quotation marks 6 and citation omitted). 7 Here, the ALJ gave two valid reasons for discrediting the opinion of Dr. 8 Salwan. 9 First, the ALJ noted that Dr. Salwan s opinion was presented via a checklist- 10 style form that included only conclusions regarding functional limitations without 11 any rationale for [them]. (AR at 22); see Batson, 359 F.3d at 1195 (holding that an 12 ALJ may reject a treating physician s opinion if it is conclusory, brief, and 13 unsupported). 14 Second, the ALJ also found that Dr. Salwan s opinion was not supported by 15 the objective evidence. (AR at 22); see Burkhart v. Bowen, 856 F.2d 1335, 133916 40 (9th Cir. 1988) (ALJ properly rejected treating opinions as unsupported by 17 medical findings, personal observations or test reports). Specifically, the ALJ found 18 that Dr. Salwan s finding of severe neuropathy was undercut by the medical record, 19 which suggested that Plaintiff only had some residuals in his left arm following 20 his arm surgery. (AR at 22.) As the ALJ discussed earlier in his decision, the record 21 suggests that Plaintiff s condition improved within a year and ultimately did not 22 cause any functional limitations. (AR at 18; see AR at 178-79 (discharge summary 23 indicating that infection is well controlled but some pain and swelling remain), AR 24 at 502-505 (progress reports indicating improvement up to date of discharge).) 25 As for Dr. Salwan s finding of partial blindness, the ALJ properly relied on 26 the medical expert s testimony, which cited Dr. Sava s opthamology report as 27 evidence that Plaintiff s vision was correctable and that the acuity of his right eye 28 was 20/30. (AR at 22; see AR at 37, 477-78); see also Thomas v. Barnhart, 278 4 1 F.3d 947, 957 (9th Cir. 2002) ( The opinions of non-treating or non-examining 2 physicians may also serve as substantial evidence when the opinions are consistent 3 with independent clinical findings or other evidence in the record ). Notably, 4 Plaintiff does not cite any evidence in the record to refute the ALJ s conclusion that 5 Dr. Salwan s opinion was unsupported by the record. (See Joint Stip. at 18-22.) 6 Accordingly, the Court finds that the ALJ properly rejected Dr. Salwan s 7 treating opinion.1/ For the above reasons, the Court further finds substantial evidence supported 8 9 the ALJ s decision that Plaintiff was not disabled. See Mayes v. Massanari, 276 10 F.3d 453, 458-59 (9th Cir. 2001). Based on the foregoing, IT IS ORDERED THAT judgment shall be entered 11 12 AFFIRMING the decision of the Commissioner denying benefits. 13 14 Dated: November 20, 2012 15 ____________________________________ 16 Hon. Jay C. Gandhi United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 1/ Since the Court finds no error with the ALJ s treatment of Dr. Salwan s opinion, it also rejects Plaintiff s related complaint alleging that the ALJ incorrectly 28 assessed Plaintiff s RFC. (See Joint Stip. at 32-33.) 27 5
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