Gary L. Spears v. Carolyn W. Colvin, No. 5:2016cv02333 - Document 27 (C.D. Cal. 2018)
Court Description: MEMORANDUM DECISION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the Commissioner's decision, DENYING Plaintiff's request for remand, and DISMISSING this action with prejudice. (See Order for further details) (bem)
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Gary L. Spears v. Carolyn W. Colvin Doc. 27 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 GARY L. SPEARS, Plaintiff, 12 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security,1 16 Defendant. ) Case No. EDCV 16-2333-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) AFFIRMING COMMISSIONER ) ) ) ) ) ) ) 17 18 19 I. PROCEEDINGS Plaintiff seeks review of the Commissioner’s final decision 20 denying his application for supplemental security income benefits 21 (“SSI”). 22 undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). 23 matter is before the Court on the parties’ Joint Stipulation, 24 filed September 28, 2017, which the Court has taken under 25 submission without oral argument. 26 the Commissioner’s decision is affirmed. The parties consented to the jurisdiction of the The For the reasons stated below, 27 1 28 Nancy A. Berryhill is substituted in as the correct Defendant. See Fed. R. Civ. P. 25(d). 1 Dockets.Justia.com 1 II. 2 BACKGROUND Plaintiff was born in 1958. (Administrative Record (“AR”) 3 33, 47, 187.) 4 last worked as a “sorter operator” (AR 231). 5 He completed three years of college (AR 210) and On October 16, 2012, Plaintiff filed an application for SSI, 6 alleging that he had been disabled since February 1, 2005, 7 because of diabetes, “peripheral arterial disease of the legs,” 8 and inability to “control bowels.” 9 After his application was denied initially (AR 59) and on 10 reconsideration (AR 66), he requested a hearing before an 11 Administrative Law Judge (AR 72). 12 21, 2014, at which Plaintiff, who was represented by counsel, 13 testified. 14 February 17 and July 13, 2015. 15 written decision issued July 17, 2015, the ALJ found Plaintiff 16 not disabled. 17 Appeals Council, and on October 20, 2016, it denied review. 18 1-4.) 19 III. STANDARD OF REVIEW 20 (AR 600-32.) (AR 9-22.) (AR 33, 47, 187, 209, 618.) A hearing was held on October Supplemental hearings were held on (See AR 23-32, 572-99.) In a Plaintiff requested review from the (AR This action followed. Under 42 U.S.C. § 405(g), a district court may review the 21 Commissioner’s decision to deny benefits. 22 decision should be upheld if they are free of legal error and 23 supported by substantial evidence based on the record as a whole. 24 See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra 25 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 26 evidence means such evidence as a reasonable person might accept 27 as adequate to support a conclusion. 28 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 2 The ALJ’s findings and Substantial Richardson, 402 U.S. at 1 It is more than a scintilla but less than a preponderance. 2 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 3 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 4 substantial evidence supports a finding, the reviewing court 5 “must review the administrative record as a whole, weighing both 6 the evidence that supports and the evidence that detracts from 7 the Commissioner’s conclusion.” 8 720 (9th Cir. 1998). 9 either affirming or reversing,” the reviewing court “may not To determine whether Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support 10 substitute its judgment” for the Commissioner’s. 11 IV. Id. at 720-21. THE EVALUATION OF DISABILITY 12 People are “disabled” for purposes of receiving Social 13 Security benefits if they are unable to engage in any substantial 14 gainful activity owing to a physical or mental impairment that is 15 expected to result in death or has lasted, or is expected to 16 last, for a continuous period of at least 12 months. 17 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 18 1992). 42 U.S.C. 19 A. 20 The ALJ follows a five-step sequential evaluation process to The Five-Step Evaluation Process 21 assess whether a claimant is disabled. 22 § 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 23 1995) (as amended Apr. 9, 1996). 24 Commissioner must determine whether the claimant is currently 25 engaged in substantial gainful activity; if so, the claimant is 26 not disabled and the claim must be denied. 20 C.F.R. In the first step, the § 416.920(a)(4)(i). 27 If the claimant is not engaged in substantial gainful 28 activity, the second step requires the Commissioner to determine 3 1 whether the claimant has a “severe” impairment or combination of 2 impairments significantly limiting his ability to do basic work 3 activities; if not, the claimant is not disabled and his claim 4 must be denied. 5 § 416.920(a)(4)(ii). If the claimant has a “severe” impairment or combination of 6 impairments, the third step requires the Commissioner to 7 determine whether the impairment or combination of impairments 8 meets or equals an impairment in the Listing of Impairments set 9 forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, 10 disability is conclusively presumed. § 416.920(a)(4)(iii). 11 If the claimant’s impairment or combination of impairments 12 does not meet or equal an impairment in the Listing, the fourth 13 step requires the Commissioner to determine whether the claimant 14 has sufficient residual functional capacity (“RFC”)2 to perform 15 his past work; if so, he is not disabled and the claim must be 16 denied. 17 proving he is unable to perform past relevant work. 18 F.2d at 1257. 19 case of disability is established. § 416.920(a)(4)(iv). The claimant has the burden of Drouin, 966 If the claimant meets that burden, a prima facie Id. 20 If that happens or if the claimant has no past relevant 21 work, the Commissioner then bears the burden of establishing that 22 the claimant is not disabled because he can perform other 23 substantial gainful work available in the national economy. 24 25 26 27 28 2 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). The Commissioner assesses the claimant’s RFC between steps three and four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (citing § 416.920(a)(4)). 4 1 § 416.920(a)(4)(v); Drouin, 966 F.2d at 1257. That determination 2 comprises the fifth and final step in the sequential analysis. 3 § 416.920(a)(4)(v); Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d 4 at 1257. 5 B. 6 At step one, the ALJ found that Plaintiff had not engaged in The ALJ’s Application of the Five-Step Process 7 substantial gainful activity since the application date. 8 11.) 9 severe impairments: “diabetes mellitus; diabetic neuropathy; (AR At step two, he concluded that Plaintiff had the following 10 ulceration of the right foot; peripheral vascular disease; and 11 macular edema.” 12 did not have an impairment or combination of impairments falling 13 under a Listing. 14 (peripheral arterial disease), among others. 15 16 (Id.) At step three, he found that Plaintiff (AR 12.) He expressly considered Listing 4.12 (Id.) At step four, the ALJ found that Plaintiff had the RFC to perform modified light work: 17 [He] can lift and/or carry 20 pounds occasionally and 10 18 pounds frequently. 19 hours out of an eight-hour workday with regular breaks. 20 He must change positions between standing and walking. 21 He can sit for six hours out of an eight-hour workday 22 with regular breaks. 23 pushing and/or pulling, other than as indicated for 24 lifting and/or carrying. 25 the bilateral upper extremities. 26 handle, feel, finger and push and pull with the upper 27 extremities. 28 foot controls with the lower extremities. He can stand and/or walk for two He is unlimited with respect to He can frequently reach with He can continuously He can occasionally push and pull and use 5 He cannot 1 climb ladders, ropes or scaffolds. 2 climb ramps and stairs, balance, stoop, kneel, crouch and 3 crawl. 4 ordinary newspapers and books is permissible. 5 precluded from work at unprotected heights. 6 occasionally operate motor vehicles. 7 moving mechanical parts or machinery. 8 from exposure to humidity, wetness or extreme cold, heat 9 and 10 He can occasionally He is precluded from reading small print, but vibratory tools. He is He is He can He cannot operate limited He is precluded to occasional exposure to fumes, dust, odors or pulmonary irritants. 11 (Id.) 12 Plaintiff could perform his past relevant work as a “[p]roof- 13 machine operator,” DOT 217.382-010, 1991 WL 671944, as actually 14 and generally performed in the regional and national economy. 15 (AR 17.) 16 18.) 17 V. 18 Based on the VE’s testimony, the ALJ concluded that Thus, the ALJ found Plaintiff not disabled. (AR 17- DISCUSSION Plaintiff argues that the ALJ erred in (1) evaluating the 19 opinion of testifying medical expert Minh Vu-Dinh (J. Stip. at 3- 20 6) and (2) finding that Plaintiff could perform his past relevant 21 work despite an alleged unexplained inconsistency between the DOT 22 and the ALJ’s RFC determination (J. Stip. at 6-9, 11). 23 reasons discussed below, however, the ALJ did not err. For the 24 A. 25 Dr. Vu-Dinh testified that Plaintiff’s impairments equaled The ALJ Properly Rejected Dr. Vu-Dinh’s Opinion 26 Listing 4.12. 27 weight” and rejected it, finding at step three of the sequential 28 evaluation process that Plaintiff’s impairments did not meet or (AR 579.) The ALJ gave that opinion “little 6 1 equal any listed impairment, including Listing 4.12. 2 16.) 3 explain why he gave greater weight” to the opinions of consulting 4 medical expert Thomas Tarnay and state-agency consultants G. 5 Taylor and A. Pan. 6 Plaintiff has not challenged the ALJ’s step-three finding (see 7 generally J. Stip. at 3-6), the Court construes his briefing 8 liberally to include a challenge to it because that finding was 9 undoubtedly based in part on the ALJ’s rejection of Dr. Vu-Dinh’s 10 Plaintiff argues that the ALJ erred because he “did not (See J. Stip. at 4.) Further, though opinion. 11 12 (AR 12, 1. Applicable law Three types of physicians may offer opinions in Social 13 Security cases: those who directly treated the plaintiff, those 14 who examined but did not treat the plaintiff, and those who did 15 neither. 16 is generally entitled to more weight than an examining 17 physician’s, and an examining physician’s opinion is generally 18 entitled to more weight than a nonexamining physician’s. 19 see § 416.927.3 Lester, 81 F.3d at 830. A treating physician’s opinion Id.; But “the findings of a nontreating, nonexamining 20 21 22 23 24 25 26 27 28 3 Social Security regulations regarding the evaluation of opinion evidence were amended effective March 27, 2017. When, as here, the ALJ’s decision is the final decision of the Commissioner, the reviewing court generally applies the law in effect at the time of the ALJ’s decision. See Lowry v. Astrue, 474 F. App’x 801, 804 n.2 (2d Cir. 2012) (applying version of regulation in effect at time of ALJ’s decision despite subsequent amendment); Garrett ex rel. Moore v. Barnhart, 366 F.3d 643, 647 (8th Cir. 2004) (“We apply the rules that were in effect at the time the Commissioner’s decision became final.”); Spencer v. Colvin, No. 3:15-CV-05925-DWC, 2016 WL 7046848, at *9 n.4 (W.D. Wash. Dec. 1, 2016) (“42 U.S.C. § 405 does not contain any express authorization from Congress allowing the Commissioner to engage in retroactive rulemaking.”). Accordingly, citations to 7 1 physician can amount to substantial evidence, so long as other 2 evidence in the record supports those findings.” 3 Chater, 94 F.3d 520, 522 (9th Cir. 1996) (per curiam) (as 4 amended). 5 subject to cross-examination, his opinion may be given greater 6 weight. 7 Saelee v. Moreover, because a testifying medical expert is Andrews v. Shalala, 53 F.3d 1035, 1042 (9th Cir. 1995). The ALJ may disregard a physician’s opinion regardless of 8 whether it is contradicted. 9 751 (9th Cir. 1989); see Carmickle v. Comm’r, Soc. Sec. Admin., Magallanes v. Bowen, 881 F.2d 747, 10 533 F.3d 1155, 1164 (9th Cir. 2008). 11 is not contradicted by other medical-opinion evidence, however, 12 it may be rejected only for “clear and convincing” reasons. 13 Magallanes, 881 F.2d at 751; Carmickle, 533 F.3d at 1164 (citing 14 Lester, 81 F.3d at 830-31). 15 must provide only “specific and legitimate reasons” for 16 discounting it. 17 F.3d at 830-31). 18 physician’s opinion, moreover, depends on whether it is 19 consistent with the record and accompanied by adequate 20 explanation, among other things. 21 factors also determine the weight afforded the opinions of 22 nonexamining physicians. 23 findings by state-agency medical consultants and experts as 24 opinion evidence. 25 26 When a physician’s opinion When it is contradicted, the ALJ Carmickle, 533 F.3d at 1164 (citing Lester, 81 The weight given a treating or examining § 416.927(c)(3)-(6). § 416.927(e). Those The ALJ considers Id. Furthermore, “[t]he ALJ need not accept the opinion of any physician . . . if that opinion is brief, conclusory, and 27 28 20 C.F.R. § 416.927 are to the version in effect from August 24, 2012, to March 26, 2017. 8 1 inadequately supported by clinical findings.” Thomas v. 2 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); accord Batson v. 3 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). 4 An ALJ need not recite “magic words” to reject a physician’s 5 opinion or a portion of it; the court may draw “specific and 6 legitimate inferences” from the ALJ’s opinion. 7 F.2d at 755. 8 context of “the entire record as a whole,” and if the “‘evidence 9 is susceptible to more than one rational interpretation,’ the Magallanes, 881 The Court must consider the ALJ’s decision in the 10 ALJ’s decision should be upheld.” 11 528 F.3d 1194, 1198 (9th Cir. 2008) (citation omitted). Ryan v. Comm’r of Soc. Sec., 12 Listing 4.12 requires the following: 13 Peripheral 14 appropriate 15 intermittent claudication5 and one of the following: 16 A. 17 of less than 0.50. 18 OR 19 B. 20 exercise of 50 percent or more of pre-exercise level and 21 requiring 10 minutes or more to return to pre-exercise arterial medically disease,4 acceptable as determined imaging, by causing Resting ankle/brachial systolic blood pressure ratio Decrease in systolic blood pressure at the ankle on 22 23 24 25 26 27 28 4 Peripheral arterial disease is the narrowing of blood vessels outside of the heart. See Peripheral Arterial Disease, MedlinePlus, https://medlineplus.gov/ peripheralarterialdisease.html (last updated July 17, 2017). 5 Claudication is pain caused by too little blood flow and generally affects the blood vessels in the legs. See Claudication, Mayo Clinic, https://www.mayoclinic.org/diseasesconditions/claudication/symptoms-causes/syc-20370952 (last updated Jan. 31, 2015). 9 1 level. 2 OR 3 C. 4 OR 5 D. Resting toe/brachial systolic blood pressure ratio of 6 less than 0.40. 7 Resting toe systolic pressure of less than 30 mm Hg. 20 C.F.R. pt. 404, subpt. P, app. 1 § 4.12. 8 2. 9 Relevant background a. 10 Dr. Vu-Dinh Dr. Vu-Dinh, an internist, testified as a medical expert at 11 Plaintiff’s February 17, 2015 supplemental hearing. 12 572.) 13 serious problems”: “peripheral vascular disease,” diabetes- 14 related “foot ulcerations,” and “diabetes with . . . early 15 polyneuropathy.” 16 equaled “Listing 4.12 for the peripheral vascular disease.” 17 579.) 18 (See AR He found that the medical evidence supported “three (AR 577-78.) He concluded that Plaintiff (AR Dr. Vu-Dinh nonetheless noted that the peripheral vascular 19 disease was “corrected in all of the places,” apparently by a 20 stent, but he “[wasn’t] sure the stent [was] working because 21 . . . they couldn’t do the ABI.”6 22 an ABI indicated the “ratio between the regular artery and the 23 ankle artery” (AR 577) and that he “depend[ed] . . . on [it]” in (AR 579-80.) He stressed that 24 25 26 27 28 6 The ankle-brachial index test for peripheral arterial disease compares the systolic blood pressure at the arteries near the ankles with the systolic blood pressure in the arms. AnkleBrachial Index, Mayo Clinic, https://www.mayoclinic.org/ tests-procedures/ankle-brachial-index/basics/definition/ PRC-20014625?p=1 (last updated Jan. 10, 2018). 10 1 cases like this (AR 579). 2 couldn’t “say for sure . . . how severe” the peripheral vascular 3 disease was. 4 Dinh testified, he thought Plaintiff “would have an ABI 5 consistent with the 4.12 listing.” 6 think had [the ABI] been performed, I expect the result would be 7 positive.”).) 8 9 (AR 583.) He stated that without the ABI he But if it had been performed, Dr. Vu- (AR 584; see also AR 577 (“I In making that conclusion, Dr. Vu-Dinh relied on an ulceration from 2013, which he found “indicat[ed] that 10 [Plaintiff’s] profusion [was] still very poor.” 11 explained that in his experience poor profusion, or poor flow to 12 the lower extremities, “would, itself, equal” Listing 4.12. 13 584-85.) 14 months (AR 580-81), but he also expected Plaintiff’s 15 susceptibility to ulceration to be “permanent” because the first 16 one “requir[ed] such a tremendous amount of treatment,” including 17 “hyperbaric oxygen.” 18 Plaintiff’s profusion was “not restored completely yet” (AR 582) 19 but mentioned that there was evidence that “the profusion ha[d] 20 also been corrected” (AR 581). 21 record that evidence was. 22 (AR 579-80.) He (AR He conceded that the ulcer did not last for over 12 (Id.) Dr. Vu-Dinh further stated that He did not specify where in the After hearing Dr. Vu-Dinh’s testimony, the ALJ found that 23 his “credibility d[id] not appear to be germane because he, 24 himself, [was] relying upon an ulceration that . . . he admitted 25 didn’t take a year” and “should not be coupled with something 26 else that [was] not there.” 27 intended to get the opinion of “another doctor” “to see whether 28 or not he comes back the same as Dr. Vu[-Dinh].” (AR 598.) 11 The ALJ stated that he (Id.) 1 b. 2 Dr. Tarnay In April 2015, Dr. Tarnay responded to a medical 3 interrogatory sent by the ALJ, who contacted him the month after 4 receiving Dr. Vu-Dinh’s testimony. 5 found that Plaintiff had “[l]ower extremity vascular disease,” 6 and in support of his conclusion he identified stents placed in 7 Plaintiff’s “common iliac vessels,” angioplasties in his “left 8 popliteal and left posterior tibial vessels,” a “leg ulcer on the 9 left foot,” and a “plantar infection on the right foot requiring (AR 544, 559-67.) (AR 559.) Dr. Tarnay 10 hyperbaric oxygenation.” 11 did not meet any Listing. 12 stated, was that there was “no direct data to quantify 4.12.” 13 (Id.) 14 brachial indices could not be obtained.” 15 notes of Plaintiff’s ankle pressure at “200+ mean[t] the vessels 16 were too stiff to be compressed; thus the measurements were 17 invalid.” (AR 560.) He concluded that Plaintiff “The problem,” Dr. Tarnay 18 An “exercise test was not done,” and “reliable ankle(Id.) He stated that (Id.) He also determined that Plaintiff did not equal Listing 19 4.12. 20 stated that “if pressures in [Plaintiff’s] toes could be measured 21 they would very likely be above 40 and not meet the listing.” 22 (Id.) 23 vessels, the lack of significant distal disease “on the right,” 24 the angioplasties in two different locations “on the left,” the 25 healed ischemic ulcer, the healed right infection from a foreign 26 body, and “[t]riphasic waveforms at the groins,” indicating 27 “adequate inflow.” 28 Clarifying that his opinion “rest[ed] on inference,” he He considered the stents placed in Plaintiff’s iliac (Id.) Dr. Tarnay then assessed Plaintiff with certain functional 12 1 limitations, agreeing with the light-work RFC assessment provided 2 by orthopedic surgeon and consulting examiner Anh Tat Hoang on 3 March 18, 2013. 4 (AR 561-67; see also AR 370-73.) Although Plaintiff’s counsel was served with Dr. Tarnay’s 5 opinion (AR 246-47), he had “no comment to make” and did not 6 request a supplemental hearing, the right to cross-examine him, 7 or anything else (AR 249; see also AR 15 (ALJ so noting)). 8 c. 9 State-agency physicians In April 2013, internist Taylor reviewed Plaintiff’s medical 10 records. 11 severe impairments: diabetes mellitus, an open wound on his lower 12 limb, and peripheral arterial disease. 13 Listing 4.12 for peripheral arterial disease (id.) but found 14 Plaintiff not disabled (AR 45). 15 (AR 33-46.) He found that Plaintiff had the following (AR 40.) He considered In October 2013, general practitioner Pan reviewed 16 Plaintiff’s medical records. 17 severe impairments as Dr. Taylor and, after considering Listing 18 4.12 (AR 52), found Plaintiff not disabled (AR 56). 19 3. 20 (AR 47-58.) He found the same Analysis The ALJ attributed “little weight” to Dr. Vu-Dinh’s opinion, 21 “great weight” to Dr. Tarnay’s opinion, and “some weight” to the 22 opinions of Drs. Taylor and Pan. 23 had examined Plaintiff. 24 contradicted, the ALJ was required to provide a “specific and 25 legitimate” reason for rejecting it. 26 1164. 27 28 (AR 16.) None of the doctors Because Dr. Vu-Dinh’s opinion was See Carmickle, 533 F.3d at He did so. The ALJ stated that Dr. Vu-Dinh’s opinion was “not consistent” with Dr. Tarnay’s, to which he assigned greater 13 1 weight. (AR 16.) Moreover, the ALJ found Dr. Vu-Dinh not 2 credible because he relied on an ulceration that didn’t last a 3 year and “should not [have been] coupled with something else that 4 [was] not there,” apparently referring to nonexistent test 5 results of the sort listed in 4.12 and possibly to the widespread 6 profusion Dr. Vu-Dinh believed might exist. 7 a proper basis for rejecting the opinion. 8 Berryhill, 697 F. App’x 516, 517 (9th Cir. 2017) (upholding 9 inconsistency with medical-opinion evidence as specific and (AR 598.) That was See Kohansby v. 10 legitimate reason for rejecting medical opinion (citing 11 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008))); see 12 also Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998) 13 (“[ALJ] may reject the opinion of a non-examining physician by 14 reference to specific evidence in the medical record.”). 15 The ALJ’s credibility assessment reflected other problems he 16 found with Dr. Vu-Dinh’s testimony, including his “unclearly 17 understanding the questions” and offering inconsistent answers. 18 (See AR 597.) 19 “profusion [was] not restored completely yet” (AR 582) but that 20 some evidence indicated his profusion had been “corrected” (AR 21 581). 22 [Plaintiff] still ha[d] a problem” with “poor flow.” 23 His statement that he could not “say for sure” “how severe” 24 Plaintiff’s condition was further contradicted his statements 25 that Plaintiff’s condition “would equal” Listing 4.12. 26 583-84); see also De Guzman v. Astrue, 343 F. App’x 201, 208 (9th 27 Cir. 2009) (recognizing “inconsistent statements” as specific and 28 legitimate reason for discounting medical opinion); Donathan v. Dr. Vu-Dinh, for example, stated that Plaintiff’s He also stated that he “d[idn’t] have the proof that 14 (AR 585.) (See AR 1 2 Astrue, 264 F. App’x 556, 560 (9th Cir. 2008) (same). Plaintiff argues that the ALJ failed to explain his 3 reasoning, “ma[king] no mention of listing 4.12” and “offer[ing] 4 no assessment as to how the medical evidence supports Dr. 5 Tarnay’s opinion.” 6 In the paragraphs immediately preceding his rejection of Dr. Vu- 7 Dinh’s opinion, the ALJ thoroughly discussed Dr. Tarnay’s 8 evaluation of Listing 4.12 and his specific findings. 9 15-16.) (J. Stip. at 4.) But Plaintiff is mistaken. (See AR Indeed, as explained below, a review of the entire 10 record reveals that the ALJ’s reliance on Dr. Tarnay’s opinion 11 was supported by substantial evidence. 12 831 (ALJ may reject medical-source opinion in favor of 13 conflicting, nonexamining physician’s opinion as long as that 14 determination is “supported by substantial record evidence” 15 (emphasis in original) (citation omitted)). 16 17 a. See Lester, 81 F.3d at Meeting Listing 4.12 To meet Listing 4.12, a claimant must point to (1) 18 “medically acceptable imaging” supporting a diagnosis of 19 peripheral arterial disease with claudication and (2) blood- 20 pressure measurements, which can be obtained through a variety of 21 methods. 22 party contends that Plaintiff met the listing. 23 Stip.) 24 Plaintiff with peripheral arterial disease, based on an 25 arteriogram from July 2010 (AR 559 (citing AR 315); see also AR 26 493 (Mar. 2014 imaging report of bilateral lower extremities 27 showing “[p]ositive findings for peripheral arterial disease in 28 the right lower extremity” and “negative” for left)). See 20 C.F.R. pt. 404, subpt. P, app. 1 § 4.12. No (See generally J. As stated by the ALJ (AR 16), Dr. Tarnay assessed 15 Though a 1 medically documented finding of that disease satisfied one of the 2 criteria under Listing 4.12, Dr. Tarnay found that Plaintiff’s 3 impairments “neither singly nor in combination met” Listing 4.12 4 because “there [was] no direct data to support [it,] as an 5 exercise test was not performed and reliable ankle-brachial 6 indices could not be obtained.” 7 Plaintiff does not contend otherwise. 8 2-5 (arguing only about whether Plaintiff “equaled” Listing 9 4.12).) (AR 16 (citing AR 560).) (See generally J. Stip. at 10 Indeed, Plaintiff’s medical records indicate that he had a 11 “history of vessel non-compliance,” which prevented “pressures” 12 from being measured accurately (AR 488 (Sept. 2014)), as Dr. 13 Tarnay found (see, e.g., AR 432-33 (“Vessel noncompliance 14 indicated bilaterally [in Mar. 2014].”), 560 (Dr. Tarnay noting 15 “invalid” measurements because vessels “were too stiff to be 16 compressed”)). 17 regarding Plaintiff’s ankle-brachial blood pressures that would 18 satisfy the requirements of Listing 4.12, a fact Dr. Vu-Dinh 19 himself acknowledged. 20 determination, the ALJ noted that there were no “medical findings 21 that [were] the same [as] those of any listed impairment.” 22 12.) 23 Plaintiff’s impairments did not meet Listing 4.12. 24 v. Zebley, 493 U.S. 521, 530 (1990) (holding that “[f]or a 25 claimant to show that his impairment matches a listing, it must 26 meet all of the specified medical criteria” and that “[a]n 27 impairment that manifests only some of those criteria, no matter 28 how severely, does not qualify” (emphasis in original)), Accordingly, the record contains no findings (AR 579-80.) In making his step-three (AR Substantial evidence therefore supports the conclusion that 16 See Sullivan 1 superseded by statute on other grounds as stated in Kennedy v. 2 Colvin, 738 F.3d 1172, 1174 (9th Cir. 2013). 3 b. Equaling Listing 4.12 4 To equal a listing, a claimant must establish “symptoms, 5 signs and laboratory findings ‘at least equal in severity and 6 duration’ to the characteristics of a relevant listed 7 impairment.” 8 1999) (quoting § 404.1526); see also § 416.926. 9 that “[n]o treating or examining physician ha[d] recorded Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. The ALJ found 10 findings equivalent in severity to the criteria of any listed 11 impairment, nor d[id] the evidence show medical findings that 12 [were] equivalent to those of any listed impairment.” 13 He specifically discussed Dr. Tarnay’s findings that Plaintiff’s 14 “ischemic ulcer” and right-foot “infection . . . due to a foreign 15 body” had healed. 16 2015 hearing, he also noted that the ulcer had not lasted for 12 17 months. (AR 16; see also AR 560.) (AR 12.) At the February (AR 598.) 18 Indeed, the record reveals that Plaintiff had no ulcers 19 prior to the October 2012 application date (see AR 280 (June 20 2010: “[n]o lesions or ulcerations”), 287-88 (July 2010: 21 “[Plaintiff] denies any ulcers of his feet”)), but in January 22 2013 he was diagnosed with a “non[]healing ulcer” on his right 23 foot, which he had had for two months (see AR 322, 328, 341, 345, 24 347-48). 25 body in the soft tissue” of his foot. 26 the ulcer was “much improved and healing well,” and Plaintiff 27 reported “0/10” pain. 28 and “improved” with antibiotics and “hyperbaric therapy.” The ulcer was apparently caused by a “metallic foreign (AR 391-92.) 17 (AR 363.) By February, By March, it was “healing” (AR 1 372, 375, 382.) 2 not appear infected.” 3 completely healed.” 4 indicating that right-foot ulcer “healed uneventfully”), 455 5 (Mar. 2014 note indicating “right-sided ulcer” “heal[ed] on its 6 own” and Plaintiff was “asymptomatic”).) 7 were noted in the record thereafter. 8 2014: “[n]o ulcers”), 458 (Feb. 2014: no abnormalities noted 9 other than calluses on both feet), 454 (Mar. 2014: “no 10 11 By April, it was noted as “improving” and “d[id] (AR 537.) And by June, the “wound [was] (AR 532; see also AR 457 (Feb. 2014 note No additional ulcers (See, e.g., AR 450 (Jan. ulcerations”).)7 Dr. Vu-Dinh concluded that Plaintiff’s ABI-pressure readings 12 would likely “be positive” and “equal” Listing 4.12 because his 13 ulcer and the “tremendous amount of treatment” it required 14 indicated “poor profusion.” 15 Dinh also stated, contradictorily and without further 16 elaboration, that some evidence in the record indicated that “the 17 profusion ha[d] been corrected.” 18 stated that “[t]riphasic waveforms at the groins infer[red] 19 adequate inflow” and thus normal profusion.8 20 AR 488-89 (Sept. 2014 medical-imaging report).) (AR 577, 580-81, 584.) (AR 581.) But Dr. Vu- Indeed, Dr. Tarnay (AR 560; see also And to the 21 7 22 23 24 25 26 27 28 During the February 2015 hearing, Dr. Vu-Dinh admitted that the ulcer did not last for a period of at least 12 months (AR 580-81), which was clearly evidenced in the record and further supports the ALJ’s rejection of his opinion. As the ALJ noted at the hearing, “Dr. Vu-Dinh’s credibility does not appear to be germane because he, himself, is relying upon an ulceration that . . . he admitted didn’t take a year.” (AR 598.) 8 Triphasic waveforms are associated with normal blood flow, while biphasic and monophasic waveforms are considered abnormal. See Ayush Goel et al., Doppler Waveforms, Radiopaedia, https:// radiopaedia.org/articles/doppler-waveforms (last visited Jan. 31, 2018). 18 1 extent that Dr. Vu-Dinh considered Plaintiff’s ulcer-related 2 treatment “tremendous,” Dr. Tarnay noted the hyperbaric-oxygen 3 treatment as evidence of the peripheral vascular disease itself 4 (AR 559), and the record contains characterizations by other 5 doctors of the treatment as “conservative” (AR 570 (vascular 6 surgeon stating that Plaintiff’s “diabetic foot ulcer healed with 7 conservative management”); see also AR 455, 457). 8 ALJ pointed out, Dr. Tarnay opined that Plaintiff’s impairments 9 did not equal Listing 4.12 and that “if the . . . pressure in his Thus, as the 10 toes could be measured they would likely be above 40” and not 11 satisfy the Listing. 12 (AR 16; see also AR 560.) State-agency consultants Taylor and Pan, who reviewed 13 Plaintiff’s medical records through April and October 2013, 14 respectively, and hence had access to Plaintiff’s ulcer-related 15 treatment notes, also found that his condition did not satisfy 16 Listing 4.12. 17 inconsistency with state-agency consultants’ opinions as 18 additional reason for rejecting Dr. Vu-Dinh’s opinion).) 19 the ALJ’s reliance on Dr. Tarnay’s equivalency conclusion over 20 Dr. Vu-Dinh’s was supported by substantial evidence in the record 21 and was reasonable, the Court should not “second guess[]” that 22 determination. 23 24 (AR 40-45, 52-57; see also AR 16 (ALJ relying on Because Thomas, 278 F.3d at 959. c. Reviewing the medical record in its entirety The ALJ offered an additional reason for discounting Dr. Vu- 25 Dinh’s opinion: unlike Dr. Tarnay, he “did not have the benefit 26 of reviewing the medical record in its entirety.” 27 can be a specific and legitimate reason. 28 360 F. App’x 836, 837 (9th Cir. 2009) (as amended Mar. 11, 2010) 19 (AR 16.) That Cf. Glasgow v. Astrue, 1 (nonexamining physician’s “sole review of the entire record,” 2 among other reasons, was “sufficient to overcome the general 3 rule” that nonexamining doctor’s opinion should be given less 4 weight than examining or treating doctor’s). 5 But as Plaintiff argues, the ALJ failed to explain how the 6 additional evidence reviewed by Dr. Tarnay and not reviewed by 7 Dr. Vu-Dinh would have impacted his opinion. 8 see Reddick v. Colvin, No. 16cv00029 BTM(BLM), 2016 WL 3854580, 9 at *3 (S.D. Cal. July 15, 2016) (one doctor’s review of entire (J. Stip. at 4); 10 record was not specific and legitimate reason to reject another 11 doctor’s opinion because ALJ did not “point to any specific part 12 of the record” reviewed by former doctor and not other that 13 undermined opinion).9 14 regard, any error was harmless because he identified and 15 explained a specific and legitimate reason for rejecting Dr. Vu- 16 Dinh’s opinion, inconsistency with the objective medical 17 evidence, as already discussed. 18 Sec. Admin., 352 F. App’x 173, 176 (9th Cir. 2009); Bartels v. 19 Colvin, No. CV 15-5144 AFM, 2016 WL 768851, at *4 (C.D. Cal. Jan. 20 29, 2016). Though the ALJ may have erred in this See DeBerry v. Comm’r of Soc. Remand is therefore unwarranted on this ground. 21 22 23 24 25 26 27 28 9 The additional evidence included a September 2014 treatment record in which Plaintiff was seen by a vascular surgeon. (AR 569-71.) The surgeon concluded, “[b]ased on [Plaintiff’s] clinical scenario and physical exam as well as a duplex ultrasound,” that his alleged lower-extremity symptoms — calf cramping and intermittent weakness with walking — “[were not] necessarily related to his arterial disease.” (AR 570.) While that note seems to suggest Plaintiff’s peripheral arterial disease was less severe than assessed by Dr. Vu-Dinh, the surgeon’s finding that Plaintiff had “significant blockage on the right” suggests Plaintiff had poor blood flow, which may have supported Dr. Vu-Dinh’s opinion. (See id.) 20 1 B. 2 The ALJ Properly Determined that Plaintiff Could Perform His Past Relevant Work 3 Plaintiff argues that the ALJ’s RFC determination conflicts 4 with his past relevant work as a proof-machine operator. 5 Stip. at 9.) 6 operator’s duties included operating machinery (id. at 8-9) and 7 that this requirement diverged from his RFC, which specified “in 8 no uncertain terms[] that he may not operate ‘machinery’” (id. at 9 9). (J. In particular, he alleges that a proof-machine Plaintiff contends that “neither the VE nor the ALJ 10 explained this deviation from the DOT.” 11 mistaken, as no such deviation exists. 12 1. (Id.) But Plaintiff is Applicable law 13 At step four of the five-step disability analysis, a 14 claimant has the burden of proving he cannot return to his past 15 relevant work, as both actually and generally performed in the 16 national economy. 17 840, 844 (9th Cir. 2001). 18 the claimant, the ALJ still has a duty to make factual findings 19 to support his conclusion. 20 particular, the ALJ must make “specific findings of fact” as to 21 “the individual’s RFC,” “the physical and mental demands of the 22 past job/occupation,” and whether “the individual’s RFC would 23 permit a return to his or her past job or occupation.” 24 v. Colvin, 630 F. App’x 676, 677 (9th Cir. 2015) (citing SSR 25 82–62, 1982 WL 31386, at *4 (1982)). 26 § 416.920(f); Pinto v. Massanari, 249 F.3d Although the burden of proof lies with Pinto, 249 F.3d at 844. In Ocegueda To ascertain the requirements of occupations as generally 27 performed in the national economy, the ALJ may rely on VE 28 testimony or information from the DOT. 21 SSR 00-4P, 2000 WL 1 1898704, at *2 (Dec. 4, 2000) (at steps four and five, SSA relies 2 “primarily on the DOT (including its companion publication, the 3 SCO) for information about the requirements of work in the 4 national economy” and “may also use VEs . . . at these steps to 5 resolve complex vocational issues”); SSR 82–61, 1982 WL 31387, at 6 *2 (Jan. 1, 1982) (“The [DOT] descriptions can be relied upon — 7 for jobs that are listed in the DOT — to define the job as it is 8 usually performed in the national economy.” (emphasis in 9 original)). 10 When a VE provides evidence at step four or five about the 11 requirements of a job, the ALJ has a responsibility to ask about 12 “any possible conflict” between that evidence and the DOT. 13 SSR 00-4p, 2000 WL 1898704, at *4; Massachi v. Astrue, 486 F.3d 14 1149, 1152-54 (9th Cir. 2007) (holding that application of SSR 15 00-4p is mandatory). 16 accept VE testimony that contradicts the DOT only if the record 17 contains “persuasive evidence to support the deviation.” 18 249 F.3d at 846 (citing Johnson v. Shalala, 60 F.3d 1428, 1435 19 (9th Cir. 1995)); see also Tommasetti, 533 F.3d at 1042 (finding 20 error when “ALJ did not identify what aspect of the VE’s 21 experience warranted deviation from the DOT”). 22 23 2. See When such a conflict exists, the ALJ may Pinto, Relevant background At his February 2015 hearing, Plaintiff testified that he 24 last worked as a “sorter[] operator” for a credit union, where he 25 “process[ed] checks.” 26 that position Plaintiff “received items from the proofs order, 27 read[] the item, and balance[d] the bank and reconcile[d] the 28 bank.” (AR 26.) (AR 587-88.) As summarized by the ALJ, in “[H]e had to key in information into the 22 1 computers and/or physically put the checks in the machine, of 2 which 40 percent of his time []he claimed he was standing, [and] 3 sat while doing data entry, which was 60 percent of that job.” 4 (AR 26-27; see also AR 587-93.) 5 also referred to as a “checks processing machine [clerk],” was 6 best classified under the DOT as a “proof-machine operator.” 7 589, 594; see also AR 27.) 8 9 The VE stated that such a job, (AR At the July 2015 hearing, the ALJ “ma[d]e sure [that the VE’s] testimony [was] consistent with the [DOT]” and posed to the 10 VE a hypothetical person who could, among other limitations, 11 “never [operate] moving mechanical parts or machinery.” 12 28.) 13 Plaintiff’s past relevant work as a proof-machine operator, 14 “[b]oth as per the DOT and as performed.” 15 requested that the VE “please let [him] know” “if [he] 16 disagree[d] with the DOT.” 17 such belief. 18 3. 19 (AR 27- The VE found that such a person would be able to do (AR 27.) (AR 28.) The ALJ The VE did not express any (See generally AR 26-32.) Analysis The ALJ assessed Plaintiff with an RFC in which he could not 20 “operate moving mechanical parts or machinery.” 21 further found that Plaintiff could perform his past relevant work 22 as a proof-machine operator, as actually and generally performed 23 in the national economy. 24 “operate[] machines” but not moving mechanical parts. 25 217.382-010, 1991 WL 671944 (“Moving Mech. Parts: Not Present — 26 Activity or condition does not exist[.]”). 27 description of his work as actually performed also did not 28 involve any moving machinery. (AR 17.) He A proof-machine operator must See DOT Plaintiff’s (See AR 587-93.) 23 (AR 12.) Thus, because 1 Plaintiff’s past relevant work did not require that he operate 2 moving mechanical parts or machinery, which was precluded in his 3 RFC, the ALJ did not err. 4 01941-VBK, 2011 WL 4344144, at *1 (C.D. Cal. Sept. 16, 2011) 5 (finding no error when RFC “precluded Plaintiff, in part, from 6 working with moving machinery” and “Plaintiff’s [past relevant 7 work] as mail clerk . . . d[id] not require that the person work 8 around moving machinery”); Malgra v. Astrue, No. ED CV 11-0724- 9 SP, 2012 WL 443741, at *4 (C.D. Cal. Feb. 10, 2012) (finding “no See Anderson v. Astrue, No. ED CV 10- 10 inconsistency” between RFC precluding plaintiff from operating 11 “hazardous” machinery, which included “moving mechanical parts of 12 equipment,” and his past relevant work as fast-food worker, which 13 “d[id] not involve moving mechanical parts” or other hazards). 14 Plaintiff contends that “moving” in the RFC modified only 15 “mechanical parts,” not “machinery,” and that Plaintiff was 16 therefore precluded from operating any machine. 17 7-9.) 18 See Altera Corp. v. PACT XPP Tech., AG, No. 14-cv-02868-JD, 2015 19 WL 4999952, at *4 (N.D. Cal. Aug. 21, 2015) (noting that 20 “modifiers appearing before a listing are often read to modify 21 each element”); Ward Gen. Ins. Servs., Inc. v. Emp’rs Fire Ins. 22 Co., 114 Cal. App. 4th 548, 554 (Ct. App. 2003) (“Most readers 23 expect the first adjective in a series of nouns or phrases to 24 modify each noun or phrase in the following series unless another 25 adjective appears.”); see also Antonin Scalia & Bryan A. Garner, 26 Reading Law: The Interpretation of Legal Texts 147 (2012) (“When 27 there is a straightforward, parallel construction that involves 28 all nouns or verbs in a series, a prepositive . . . modifier (See J. Stip. at That is incorrect as a matter of textual construction. 24 1 normally applies to the entire series.”). Plaintiff’s RFC, then, 2 prohibited the operation of “moving mechanical parts” and “moving 3 machinery” and did not preclude the use of machines altogether. 4 (See AR 12); Wigmore v. Colvin, No. 6:12-cv-0611-ST, 2013 WL 5 1900621, at *18 (D. Or. Apr. 16, 2013) (“ALJ’s hypothetical to 6 the VE limited the use of ‘moving or otherwise dangerous 7 machinery,’ as opposed to ‘machines’ or ‘machinery’ generally.”), 8 accepted by 2013 WL 1900617 (D. Or. May 7, 2013). 9 conclusion is bolstered by the ALJ’s unchallenged finding in the This 10 RFC that Plaintiff could “occasionally operate motor vehicles” 11 (AR 12), which are certainly “machines.” 12 And while a proof-machine operator must necessarily operate 13 machines, the DOT makes clear that “[m]oving” mechanical parts or 14 machinery are not involved in that process; thus, no conflict 15 exists. 16 did not conflict with RFC prohibiting “moving machinery,” even 17 though it “could require use of machinery”); Wigmore, 2013 WL 18 1900621, at *18 (“The mere fact that [plaintiff’s jobs] require 19 the use of a machine does not render the VE’s testimony 20 inconsistent with the limitations in the hypothetical [precluding 21 moving machinery], especially in light of the DOT descriptions 22 which specifically exclude the use of ‘moving mechanical parts.’” 23 (emphasis in original)). 24 See Anderson, 2011 WL 4344144, at *1 (mail-clerk work Thus, Plaintiff has failed to allege a conflict between the 25 ALJ’s RFC determination and his past relevant work as a proof- 26 machine operator. 27 testimony in concluding that Plaintiff could perform his past 28 relevant work even with an RFC precluding him from “moving The ALJ therefore properly relied on the VE’s 25 1 mechanical parts or machinery.”10 2 VE’s testimony was “consistent with the Dictionary of 3 Occupational Titles”)); Dewey v. Colvin, 650 F. App’x 512, 514 4 (9th Cir. 2016). 5 ground. 6 VI. 7 (See AR 27-28 (confirming that Accordingly, remand is unwarranted on this CONCLUSION Consistent with the foregoing and under sentence four of 42 8 U.S.C. § 405(g),11 IT IS ORDERED that judgment be entered 9 AFFIRMING the Commissioner’s decision, DENYING Plaintiff’s 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 Plaintiff probably couldn’t perform his past relevant work as actually performed, however, despite the lack of conflict regarding “moving mechanical parts or machinery.” As a proofmachine operator, he testified, he stood “40 percent” of the time, or 3.2 hours in an eight-hour workday. (See AR 592.) But his RFC limited him to standing and/or walking for only two hours a day, or 25 percent of the time. (AR 12.) Apparently, then, Plaintiff could not perform his past relevant work as actually performed, and the ALJ likely erred in that regard. As generally performed, however, proof-machine operator is defined as “Sedentary Work,” involving standing or walking for only “brief periods of time.” See 1991 WL 671944. Thus, the ALJ’s step-four finding that Plaintiff could perform his past relevant work was ultimately consistent with the RFC, and any error was harmless. See, e.g., Pierce v. Astrue, No. CV 09-8177 RNB, 2010 WL 2998887, at *1 (C.D. Cal. July 30, 2010) (“[T]he determination that a claimant is capable of performing his/her past relevant work properly may be based on either the past relevant work as performed by the claimant or the past relevant work as generally performed in the national economy.” (emphasis in original)). 11 That sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 26 1 request for remand, and DISMISSING this action with prejudice. 2 3 4 DATED: February 5, 2018 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 27
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