Janice Lynn French v. Nancy A. Berryhill, No. 5:2017cv00566 - Document 22 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen L. Stevenson. On December 18, 2017, the parties filed a Joint Stipulation. (Dkt. No. 21 ("Joint Stip"). The Court finds that the Commissioner's decision is supported by substan tial evidence and free from material legal error. Neither reversal of the ALJ's decision nor remand is warranted. IT IS ORDERED that Judgment shall be entered affirming the decision of the Commissioner of the Social Security Administration. (See attachment for further details) (hr)
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Janice Lynn French v. Nancy A. Berryhill Doc. 22 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 ) NO. EDCV 17-0566-KS ) ) ) MEMORANDUM OPINION AND ORDER ) NANCY A. BERRYHILL, Acting ) Commissioner of Social Security, ) Defendant. ) _________________________________ ) JANICE LYNN FRENCH, Plaintiff, v. 17 18 INTRODUCTION 19 20 Janice Lynn French (“Plaintiff”) filed a Complaint on March 24, 2017, seeking review 21 of the denial of her application for Supplemental Security Income (“SSI”) under Title XVI of 22 the Social Security Act. (Dkt. No. 1.) The parties have consented, pursuant to 28 U.S.C. 23 § 636(c), to proceed before the undersigned United States Magistrate Judge. (Dkt. Nos. 10, 24 12-13.) On December 18, 2017, the parties filed a Joint Stipulation. (Dkt. No. 21 (“Joint 25 Stip.”).) Plaintiff seeks an order reversing the Commissioner’s decision and remanding the 26 matter for further administrative proceedings. (Joint Stip. at 26.) The Commissioner 27 requests that the ALJ’s decision be affirmed or, in the alternative, remanded for further 28 proceedings. (Id.) The Court has taken the matter under submission without oral argument. 1 Dockets.Justia.com SUMMARY OF ADMINISTRATIVE PROCEEDINGS 1 2 3 On January 14, 2013, Plaintiff, who was born on June 3, 19641, protectively filed an 4 application for SSI. (Administrative Record (“AR”) 33, 214-19.) Plaintiff alleged disability 5 commencing on January 22, 2009 due to a heart condition, chronic obstructive pulmonary 6 disease, and depression. (AR 103.) Plaintiff had no past relevant work. (AR 41.) After the 7 Commission denied Plaintiff’s application initially (AR 116-20), and on reconsideration (AR 8 125-28), Plaintiff requested a hearing (AR 131-32). 9 10 At a hearing held on July 13, 2015, at which Plaintiff appeared with counsel, an 11 Administrative Law Judge (“ALJ”) heard testimony from Plaintiff and a vocational expert 12 (“VE”). (AR 47-78.) On September 2, 2015, the ALJ issued an unfavorable decision 13 denying Plaintiff’s application for SSI. (AR 33-42.) On January 31, 2017, the Appeals 14 Council denied Plaintiff’s request for review. (AR 1-3.) 15 16 SUMMARY OF ADMINISTRATIVE DECISION 17 18 Applying the five step sequential evaluative process, the ALJ found at step one that 19 Plaintiff had not engaged in substantial gainful activity since her January 14, 2013 20 application date and at step two, that Plaintiff had the following severe impairments: lumbar 21 spine degenerative disc disease, cervical spine degenerative disc disease, osteoarthritis of the 22 left foot, coronary artery disease status post tricuspid valve replacement, chronic obstructive 23 pulmonary disease, obesity, and obstructive sleep apnea. (AR 35.) At step three, the ALJ 24 concluded that Plaintiff did not have an impairment or combination of impairments that met 25 or medically equaled the severity of any impairments listed in the Commissioner’s Listing of 26 27 28 1 Plaintiff was 48years old when she filed her SSI application and, therefore, considered a “younger individual” under agency guidelines (20 CFR 416.963). (AR 41) She later changed age category to “closely approaching advanced age.” (Id.) 2 1 Impairments. (AR 37.) The ALJ next determined that Plaintiff had the residual functional 2 capacity (“RFC”) to perform a range of light work as follows: lift/carry 20 pounds 3 occasionally and 10 pounds frequently; sit, stand, and walk for six hours in an eight-hour 4 workday; and she is precluded from fumes, dusts, gases, and hazards. (AR 37.) For 5 purposes of step four, Plaintiff had no past relevant work. (AR 41.) However, at step five, the 6 ALJ concluded, based on the testimony of the VE, that Plaintiff could perform other work 7 existing in significant numbers in the national economy, specifically, the occupations of 8 cashier, DOT 211.462-010, a light, unskilled occupation; ticket taker, DOT 344.667-010, a 9 light, unskilled occupation; and electronics worker, DOT 726.687-010, a light, unskilled 10 occupation (AR 42). Accordingly, the ALJ concluded that Plaintiff was not disabled within 11 the meaning of the Social Security Act. (Id.) 12 13 STANDARD OF REVIEW 14 15 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 16 determine whether it is free from legal error and supported by substantial evidence in the 17 record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “Substantial evidence 18 is ‘more than a mere scintilla but less than a preponderance; it is such relevant evidence as a 19 reasonable mind might accept as adequate to support a conclusion.’” Gutierrez v. Comm’r of 20 Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 2014) (internal citations omitted). “Even when the 21 evidence is susceptible to more than one rational interpretation, we must uphold the ALJ’s 22 findings if they are supported by inferences reasonably drawn from the record.” Molina v. 23 Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). 24 25 Although this Court cannot substitute its discretion for the Commissioner’s, the Court 26 nonetheless must review the record as a whole, “weighing both the evidence that supports 27 and the evidence that detracts from the [Commissioner’s] conclusion.” Lingenfelter v. 28 Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (internal quotation marks and citation omitted); 3 1 Desrosiers v. Sec’y of Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988). “The ALJ 2 is responsible for determining credibility, resolving conflicts in medical testimony, and for 3 resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 4 5 The Court will uphold the Commissioner’s decision when the evidence is susceptible 6 to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 7 2005). However, the Court may review only the reasons stated by the ALJ in his decision 8 “and may not affirm the ALJ on a ground upon which he did not rely.” Orn, 495 F.3d at 9 630; see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). The Court will not 10 reverse the Commissioner’s decision if it is based on harmless error, which exists if the error 11 is “‘inconsequential to the ultimate nondisability determination,’ or if despite the legal error, 12 ‘the agency’s path may reasonably be discerned.’” Brown-Hunter v. Colvin, 806 F.3d 487, 13 492 (9th Cir. 2015) (internal citations omitted). 14 DISCUSSION 15 16 17 Plaintiff alleges the following three errors: (1) the ALJ failed to account for all of the 18 relevant medical evidence in determining Plaintiff’s RFC; (2) the ALJ failed to properly 19 evaluate the credibility of Plaintiff’s subjective symptom testimony; and (3) the ALJ’s step 20 five determination involves unresolved conflicts with the Dictionary of Occupational Titles 21 (“DOT”). (Joint Stip. at 3.) 22 For the reasons discussed below, the Court concludes that these issues do not warrant 23 24 reversal of the ALJ’s decision. 25 // 26 // 27 // 28 // 4 1 I. RFC Determination (Issue One) 2 3 Plaintiff contends that the ALJ’s RFC determination is not supported by substantial 4 evidence because the ALJ failed to account for all of the relevant medical evidence. (Joint 5 Stip. at 4-7.) Specifically, Plaintiff argues that the ALJ erred by relying on an examining 6 physician’s opinion that was out of date because much of the relevant medical evidence was 7 generated after the examination. (Id. at 6-7.) Defendant maintains that the ALJ identified 8 substantial record evidence to support his RFC finding and the RFC determination is free of 9 legal error. (Id. at 8-12.) 10 A. 11 Applicable Law 12 13 A claimant’s RFC represents the most a claimant can do despite his or her limitations. 14 20 C.F.R. § 416.945 (a)(1); Reddick v. Chater, 157 F.3d 715, 724 (9th Cir. 1998); Smolen v. 15 Chater, 80 F.3d 1273, 1291 (9th Cir. 1996). An ALJ’s RFC determination “must set out all 16 the limitations and restrictions of the particular claimant.” Valentine v. Commissioner, 574 17 F.3d 685, 690 (9th Cir. 2009) (emphasis in original). 18 19 An ALJ also has a special duty to fully and fairly develop the record and to assure that 20 the claimant’s interests are considered, even when the claimant is represented by counsel. 21 Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). Although the burden to establish 22 disability lies with the claimant, “it is equally clear that the ALJ has a duty to assist in 23 developing the record.” Reed v. Massanari, 270 F.3d 838, 841 (9th Cir. 2001) (citation 24 omitted). The ALJ’s duty to develop the record is triggered “when there is ambiguous 25 evidence or when the record is inadequate to allow for proper evaluation of the evidence.” 26 Mayes v. Massanari, 276 F.3d 453, 459-460 (9th Cir. 2001). 27 // 28 // 5 1 B. Analysis 2 3 In March 2013, Plaintiff was examined by Dr. Concepcion Enriquez. (AR 279-82.) 4 After reviewing the available medical records (AR 279) and examining Plaintiff (AR 280- 5 82), Dr. Enriquez diagnosed her with a history of a tricuspid valve replacement, chronic 6 obstructive pulmonary disease, and chest pain (AR 282). Dr. Enriquez concluded that 7 Plaintiff was capable of a range of light work: lift and/or carry 20 pounds occasionally and 8 10 pounds frequently; sit, stand, and walk for six hours in an eight-hour workday; and avoid 9 extreme temperatures, dust, chemicals, and fumes. (Id.) The ALJ afforded “great weight” to 10 Dr. Enriquez’s opinion. (AR 40.) 11 12 Plaintiff contends that the ALJ’s reliance on Dr. Enriquez’s opinion was reversible 13 error because much of the medical evidence was generated after Dr. Enriquez conducted the 14 examination in March 2013. (Joint Stip. at 6-7.) In particular, Dr. Enriquez’s opinion was 15 unreliable, according to Plaintiff, because it did not account for Plaintiff’s liver cirrhosis, 16 sleep apnea, and the general deterioration of her other conditions after the examination. (Id.) 17 In other words, the entire medical record should have been “considered by a medical 18 professional who could render an updated and current assessment.” (Id. at 7.) Although the 19 gravamen of Plaintiff’s claim is not entirely clear, the Court construes it as an argument that 20 the ALJ failed to fully and fairly develop the record with an updated and current assessment 21 by a medical professional, presumably an examining physician or a medical expert. 22 23 1. Updated Consultative Examination 24 25 The Commissioner has “broad latitude in ordering a consultative examination,” but 26 some types of cases do “normally require a consultative examination,” including those in 27 which “additional evidence needed is not contained in the records of [the claimant’s] 28 medical sources,” and those involving an “ambiguity or insufficiency in the evidence [that] 6 1 must be resolved.” 2 consultative examination will be ordered when “[t]here is an indication of a change in your 3 condition that is likely to affect your ability to work.” 20 C.F.R. § 416.919a(b)(4). But 4 “because it is always possible to identify one more test or examination an ALJ might have 5 sought, the ALJ’s reasoned judgment of how much evidence to gather should generally be 6 respected.” Flener ex rel. Flener v. Barnhart, 361 F.3d 442, 448 (7th Cir. 2004) (citation 7 omitted). In particular, where, as in this case, a consultative examination has already been 8 performed, the mere passage of time between that examination and the administrative 9 hearing does not necessarily demonstrate the necessity for another consultative examination. 10 Reed, 270 F.3d at 842 (alterations in original). For example, a Howard v. Barnhart, 379 F.3d 945, 949 (10th Cir. 2004). 11 12 To the extent Plaintiff argues that a second consultative examination should have been 13 performed in this case, she has not demonstrated that the ALJ’s failure to order it was 14 unreasonable, in light of either the conditions that already existed at the time of Dr. 15 Enriquez’s March 2013 examination, or the conditions that arose after the examination. Dr. 16 Enriquez fully accounted for Plaintiff’s two most serious conditions, a heart condition and 17 breathing difficulties. (AR 282.) Plaintiff’s heart condition generally showed no changes 18 after Dr. Enriquez’s March 2013 examination (AR 337, 386, 477), with the exception of one 19 episode of atrial flutter/fibrillation that quickly resolved with treatment (AR 397). And 20 although Plaintiff continued to seek medical attention for breathing difficulties after the 21 March 2013 examination, usually through emergency room visits, the medical findings were 22 mild (AR 297, 305, 314, 323, 331, 372, 382, 450) or showed no difficulty with breathing 23 (AR 315, 352, 361, 374, 376, 379). 24 shortness of breath resulted in diagnoses for conditions that were easily treatable: mild 25 bronchitis (AR 327), pneumonia (AR 390), and upper respiratory infection (AR 445). The 26 ALJ discussed and fully accounted for the evidence of Plaintiff’s heart condition and 27 breathing difficulties after Dr. Enriquez’s March 2013 examination. (AR 40.) From this Moreover, Plaintiff’s emergency room visits for 28 7 1 record, neither the heart condition nor the breathing difficulties evidenced a change of 2 condition that required the ALJ to order a second consultative examination. 3 4 As Plaintiff points out, two of her impairments, liver cirrhosis and sleep apnea, were 5 diagnosed after Dr. Enriquez’s March 2013 examination. (Joint Stip. at 6.) Neither condition 6 was sufficiently serious to warrant a second consultative examination. The liver cirrhosis 7 was diagnosed during a March 2015 visit to the emergency room (AR 385, 440), but the 8 record shows no subsequent treatment for liver cirrhosis. The ALJ therefore determined at 9 step two that Plaintiff’s liver cirrhosis was not a “severe” impairment, a determination which 10 Plaintiff does not challenge. The sleep apnea, which was diagnosed in October 2014 (AR 11 368), eventually led to sleep studies that were considered successful: 12 refreshed and well rested,” had no trouble falling asleep, and was prescribed a CPAP mask. 13 (AR 378-79.) The ALJ accounted for the evidence of both of these conditions. (AR 36, 40.) 14 Accordingly, neither the liver cirrhosis nor the sleep apnea was a condition that had to be 15 further investigated by the ALJ through a second consultative examination. Plaintiff “woke 16 17 In sum, evidence of the conditions that existed at the time of the consultative 18 examination, as well as evidence of the conditions that were diagnosed after the 19 examination, is insufficient for the Court to conclude that the ALJ’s failure to order a second 20 consultative examination was unreasonable. Other courts have similarly concluded that an 21 ALJ’s reasoned judgment in this regard should be respected. See Howard, 379 F.3d at 949 22 (holding that a second consultative examination was not required where the ALJ 23 acknowledged claimant’s allegation of a worsening condition but concluded it was 24 controlled with medication); Haley v. Massanari, 258 F.3d 742, 749 (8th Cir. 2001) (same 25 where the ALJ had numerous medical reports for the period after the first examination); 26 Johnson v. Commissioner, Social Sec. Admin., 618 F. App’x 544, 551 (11th Cir. 2015) (same 27 where the initial consultative examination and other relevant evidence were sufficient for the 28 ALJ to make an informed decision based on the record before him); Poyck v. Astrue, 414 F. 8 1 App’x 859, 861-62 (7th Cir. 2011) (same where the claimant failed to show sufficient 2 deterioration of his conditions after the first consultative examination); Sanders v. Astrue, 3 879 F. Supp. 2d 930, 938-39 (N.D. Ill. 2012) (two-year gap between consultative 4 examination and administrative hearing did not require a second examination because “it is 5 not as though the record is void of evidence from this period”); McKim v. Colvin, 2014 WL 6 4161782, at *7 (M.D. La. Aug. 19, 2014) (collecting cases finding no error in the ALJ’s 7 failure to order a second consultative examination); see generally Luna v. Shalala, 22 F.3d 8 687, 693 (7th Cir. 1994) (commenting that although an ALJ has a heavy burden to 9 thoroughly investigate pain allegations, “it does not go so far as to require the ALJ to update 10 objective medical evidence to the time of hearing”). The Court finds these authorities to be 11 persuasive. Accordingly, this issue does not warrant reversal of the ALJ’s decision. 12 13 2. Medical Expert Testimony 14 15 In two limited circumstances, both involving medical equivalence at step three, an ALJ 16 must call a medical expert: (1) when the ALJ opines that an already existing case record 17 suggests that a judgment of equivalence may be reasonable; or (2) when an updated case 18 record may change the findings of the State agency medical consultants on the issue of 19 equivalence. SSR 96-6p, 1996 WL 374180, at *4. Neither of these circumstances existed 20 here. Plaintiff has not even suggested that she is disabled under a theory of equivalence to a 21 listed impairment. Thus, the ALJ was not required to call a medical expert on this basis. 22 23 Otherwise, the decision whether to obtain medical expert testimony is within the 24 ALJ’s discretion, and he need not obtain such evidence when he already has a record that is 25 sufficient to make a disability determination. See Flener, 361 F.3d at 448 (with respect to 26 medical expert testimony, “the ALJ’s reasoned judgment of how much evidence to gather 27 should generally be respected”); Wilson v. Apfel, 179 F.3d 1276, 1278 (11th Cir. 1999) (an 28 ALJ need not obtain medical expert testimony when the record is sufficient to make a 9 1 disability determination). For the same reasons that the ALJ’s failure to order a second 2 consultative examination was not unreasonable, as discussed above, it also was not 3 unreasonable for the ALJ to fail to call a medical expert. Accordingly, this issue also does 4 not warrant reversal of the ALJ’s decision. 5 6 II. Plaintiff’s Subjective Symptom Complaints (Issue Two) 7 8 Plaintiff contends that the ALJ failed to provide legally sufficient reasons to reject her 9 subjective symptom complaints and testimony regarding her symptoms and limitations. 10 (Joint Stip. at 12-16.) 11 subjective symptom testimony was not fully credible is well supported by the record and free 12 of legal error. (Id. at 16-22.) Defendant argues that the ALJ’s determination that Plaintiff’s 13 14 A. Applicable Law 15 16 An ALJ must make two findings before determining that a claimant’s pain or symptom 17 testimony is not credible. Treichler v. Comm’r of Soc. Sec., 775 F.3d 1090, 1102 (9th Cir. 18 2014). “First, the ALJ must determine whether the claimant has presented objective medical 19 evidence of an underlying impairment which could reasonably be expected to produce the 20 pain or other symptoms alleged.” Id. (quoting Lingenfelter, 504 F.3d at 1036). “Second, if 21 the claimant has produced that evidence, and the ALJ has not determined that the claimant is 22 malingering, the ALJ must provide specific, clear and convincing reasons for rejecting the 23 claimant’s testimony regarding the severity of the claimant’s symptoms” and those reasons 24 must be supported by substantial evidence in the record. Id.; see also Marsh v. Colvin, 792 25 F.3d 1170, 1174 n.2 (9th Cir. 2015); Carmickle v. Commissioner, Social Sec. Admin., 533 26 F.3d 1155, 1161 (9th Cir. 2008) (court must determine “whether the ALJ’s adverse 27 credibility finding . . . is supported by substantial evidence under the clear and convincing 28 standard”). 10 1 In weighing a plaintiff’s credibility, the ALJ may consider a number of factors, 2 3 including: “(1) ordinary techniques of credibility evaluation, such as the claimant’s 4 reputation for lying, prior inconsistent statements concerning the symptoms, and other 5 testimony . . . that appears less than candid; (2) unexplained or inadequately explained 6 failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant’s 7 daily activities.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). 2 8 must also “specifically identify the testimony [from the claimant that] she or he finds not to 9 be credible and . . . explain what evidence undermines the testimony.” Treichler, 775 F.3d 10 at 1102 (quoting Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001)). “General 11 findings are insufficient.” Brown-Hunter, 806 F.3d at 493 (quoting Reddick v. Chater, 157 12 F.3d 715, 722 (9th Cir. 1998)). The ALJ 13 14 B. Analysis 15 16 During the administrative hearing, Plaintiff testified about how her impairments affect 17 her ability to function in her daily life. (AR 51-73.) She testified that her last job was in 18 2004 at a restaurant, but she was let go because of breathing problems. (AR 55-56.) She has 19 pain in her neck, back, and feet. (AR 57.) She stated she can walk for 100 yards but cannot 20 carry a load of laundry or perform other chores such as vacuuming, mopping, or yard work. 21 (AR 58.) On a typical day, she watches television, prepares simple meals, and takes care of 22 her personal grooming. (AR 59.) She shops for groceries and occasionally visits her 23 2 24 25 26 27 28 Effective March 28, 2016, Social Security Ruling (“SSR”) 16-3p superseded SSR 96-7p, which required the ALJ to assess the credibility of a claimant’s statements. SSR 16-3p focuses on the existence of medical cause and an evaluation of “the consistency of the individual’s statements about the intensity, persistence, or limiting effects of symptoms with the evidence of record without consideration of the claimant’s overall ‘character or truthfulness’.” See Guide to SSA Changes in Regulations and Rulings 2016-17, June 2017. The revision is not applicable to Plaintiff’s application here, which was protectively filed on January 14, 2013. (See AR 33.). But the Ninth Circuit has acknowledged that SSR16-3p is consistent with existing precedent that requires that the assessment of an individual’s testimony be focused on evaluating the “intensity and persistence of symptoms” after the ALJ has found that the individual has medically determinable impairments that could reasonably be expected to produce those symptoms. Trevizo v. Berryhill, 862 F.3d 987, 1000, n.5 (9th Cir. 2017). 11 1 daughter, but she otherwise rarely goes out. (AR 60-61.) Her heart problem causes 2 difficulty with lifting things or breathing. (AR 63-64.) Because of sleep apnea, she naps 3 during the day. (AR 66.) Because of liver cirrhosis, her leg is numb and purple. (AR 67.) 4 She smokes half a pack of cigarettes each day. (AR 69.) 5 6 In addition to testifying at the hearing, Plaintiff submitted a written report further 7 describing her symptoms and daily activities. (AR 240-48.) She has a very hard time 8 breathing and moving around, and sleeps only a few hours per night. (AR 240.) She makes 9 simple meals for her elderly roommate and cares for his cat. (AR 241, 247.) She is able to 10 perform personal care, prepare simple meals, and wash dishes. (AR 241-42.) She can go out 11 alone and goes shopping once a month. (AR 243.) She can walk for 200 feet at a time. (AR 12 245.) 13 14 The ALJ determined that Plaintiff’s “allegations concerning the intensity, persistence 15 and limiting effects of her symptoms are less than fully credible.” (AR 38.) The ALJ 16 supported his credibility determination with three reasons. (Id.) 17 18 First, the ALJ found that Plaintiff’s allegations are “inconsistent with the objective 19 medical evidence, which indicates an attempt by [Plaintiff] to exaggerate the severity of her 20 symptoms.” (AR 38.) Specifically, the ALJ explained: “despite [Plaintiff’s] allegations of 21 significant breathing difficulty, examination findings were mild”; “[m]any findings did not 22 show any difficulty with breathing or wheezing”; “[e]mergency reports did not indicate 23 COPD or significant breathing restriction”; despite allegations of neck pain, “the record 24 showed no treatment for neck issues”; and “[f]indings from examinations showed her 25 musculoskeletal system was normal.” (Id.) 26 27 The record supports the ALJ’s findings about the objective medical evidence in each 28 of the three discussed areas: breathing difficulties, neck pain, and musculoskeletal problems. 12 1 As for breathing difficulties, the record shows that Plaintiff repeatedly went to emergency 2 rooms with complaints of shortness of breath (AR 321, 341, 381, 445) and was diagnosed 3 with chronic obstructive pulmonary disease (AR 304, 344). But examination findings were 4 generally mild (AR 297, 305, 314, 323, 372), many findings showed no difficulty with 5 breathing (AR 315, 352, 361, 374, 376, 379), emergency records did not indicate significant 6 breathing restriction (AR 323, 331, 382, 450), and there was no evidence of acute 7 cardiopulmonary disease (AR 467). As for neck pain, the record does show that Plaintiff 8 was diagnosed with degenerative changes in the cervical spine (AR 302, 468), but it does not 9 show any treatment for that condition. 10 As for musculoskeletal issues, findings from examination were normal. (AR 281.) 11 12 In light of this record support, the ALJ was entitled to rely on inconsistencies with the 13 objective medical evidence as one of the reasons to discount Plaintiff’s subjective symptom 14 allegations. See, e.g., Burch, 400 F.3d at 681 (“Although lack of medical evidence cannot 15 form the sole basis for discounting pain testimony, it is a factor that the ALJ can consider in 16 his credibility analysis.”); Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 600 17 (9th Cir. 1999) (ALJ may reject a claimant’s testimony by citing the conflict between that 18 testimony and the objective medical evidence in the record). 19 20 Second, the ALJ found that Plaintiff engaged in “a rather normal level of everyday 21 activities despite her alleged limitations.” (AR 38.) Plaintiff admitted she “was able to 22 watch television, do some household chores, shop, go out alone, and take care of personal 23 hygiene,” from which the ALJ concluded that “many of the tasks described above replicate 24 those necessary for obtaining and maintaining employment.” (Id.; see also AR 59-60, 241- 25 42, 243, 247.) This also was a clear and convincing reason on which the ALJ was entitled to 26 rely to discount Plaintiff’s subjective symptom allegations. See Burch, 400 F.3d at 681 (ALJ 27 was entitled to infer that a claimant’s daily activities involved skills that could be transferred 28 to a workplace when the claimant was “able to care for her own personal needs, cook, clean 13 1 and shop” and “interact[] with her nephew and her boyfriend”); Curry v. Sullivan, 925 F.2d 2 1127, 1130 (9th Cir. 1990) (“Curry indicated that she was able to take care of her personal 3 needs, prepare easy meals, do light housework, and shop for some groceries.”). Although 4 the evidence of Plaintiff’s daily activities “may also admit of an interpretation more 5 favorable to [her], the ALJ’s interpretation was rational, and we must uphold the ALJ's 6 decision where the evidence is susceptible to more than one rational interpretation.” Burch, 7 400 F.3d at 681 (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)) (internal 8 quotation marks omitted). 9 10 Third, the ALJ found that Plaintiff “worked only sporadically prior to the alleged 11 disability onset date” of January 22, 2009. (AR 39.) This too was a clear and convincing 12 reason to discount Plaintiff’s subjective symptom allegations. 13 history reflected only a few jobs, several years between jobs, and a final job in 2004. (AR 14 55, 221, 224.) An ALJ may rely on a claimant’s poor work history as an adverse credibility 15 factor. See Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (“Ms. Thomas’ work 16 history was spotty, at best, with years of unemployment between jobs, even before she 17 claimed disability.”); Aarestad v. Commissioner of Social Sec. Admin., 450 F. App’x 603, 18 604 (9th Cir 2011) (“The evidence showed that Aarestad worked only sporadically before 19 the alleged onset of disability (which suggests that her decision not to work was not based on 20 disability).”); see also Tommasetti, 533 F.3d at 1040 (ALJ may infer from a claimant’s work 21 history that he stopped working for reasons other than disability and that he lacked 22 motivation to work). Plaintiff’s employment 23 24 In sum, the ALJ provided three clear and convincing reasons supported by the record 25 evidence to conclude that Plaintiff’s subjective symptom allegations were less than fully 26 credible. Accordingly, Issue Two does not warrant reversal of the ALJ’s decision. 27 // 28 // 14 1 III. Step Five Determination (Issue Three) 2 3 Plaintiff contends that the ALJ erred at step five by relying on the WE’s testimony 4 about three jobs that each raised an apparent and unresolved conflict with the Dictionary of 5 Occupational Titles (“DOT”). (Joint Stip. at 22-23.) 6 7 A. Applicable Law 8 9 At step five of the Commissioner’s sequential evaluation process, “the burden shifts to 10 the Commissioner to demonstrate that the claimant is not disabled and can engage in work 11 that exists in significant numbers in the national economy.” Hill v. Astrue, 698 F.3d 1153, 12 1161 (9th Cir. 2012). The DOT is the Commissioner’s “primary source of reliable job 13 information” and creates a rebuttal presumption as to a job classification. Johnson v. 14 Shalala, 60 F.3d 1428, 1434 n.6, 1435 (9th Cir. 1995); see also Tommasetti, 533 F.3d at 15 1042. Where, as here, the testimony of a VE is used at step five, the VE must identify a 16 specific job or jobs in the national economy having requirements that the claimant’s physical 17 and mental abilities and vocational qualifications would satisfy. Osenbrock v. Apfel, 240 18 F.3d 1157, 1162-63 (9th Cir. 2001); Burkhart v. Bowen, 856 F.2d 1335, 1340 n.3 (9th Cir. 19 1988); 20 C.F.R. § 416.966(b). 20 21 However, an ALJ may not rely on a VE’s testimony regarding the requirements of 22 particular jobs that the claimant might be able to perform without first inquiring of the VE 23 whether his testimony conflicts with the DOT and without obtaining a reasonable 24 explanation for any apparent conflicts. Massachi v. Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 25 2007) (citing Social Security Ruling 00-4p). An ALJ may rely on VE testimony that 26 contradicts the DOT only insofar as the record contains persuasive evidence to support the 27 deviation. Johnson, 60 F.3d at 1435; see also Tommasetti, 533 F.3d at 1042; Light v. Social 28 Sec. Admin., 119 F.3d 789, 793 (9th Cir. 1997). 15 1 B. Analysis 2 3 The Commissioner contends that Plaintiff waived this claim by failing to raise it 4 before the ALJ at the administrative hearing. (Joint Stip. at 23-24.) To the contrary, a 5 claimant’s failure to raise a DOT conflict at the administrative level does not waive judicial 6 review of the issue, because the Commissioner’s own rulings impose an affirmative duty on 7 the ALJ to resolve a DOT conflict without regard to how the conflict was identified. See 8 Lamear v. Berryhill, 865 F.3d 1201, 1206 and n.5 (9th Cir. 2017) (“[O]ur law is clear that a 9 counsel’s failure does not relieve the ALJ of his express duty to reconcile apparent conflicts 10 [with the DOT] through questioning”) (citing Social Security Ruling 00-04p); Shaibi v. 11 Berryhill, 870 F.3d 874, 882 (9th Cir. 2017) (“It is true that an ALJ is required to investigate 12 and resolve any apparent conflict between the VE’s testimony and the DOT, regardless of 13 whether a claimant raises the conflict before the agency.”), as amended and superseded, 14 2017 WL 7798666 (9th Cir. Feb. 28, 2018). Thus, this claim is not waived. 15 16 1. Electronics Worker 17 18 One of the occupations identified by the VE at step five was electronics worker (DOT 19 726.687-010). (AR 74.) Plaintiff contends that the VE’s testimony in this regard raised an 20 apparent conflict with the ALJ’s RFC determination that Plaintiff must avoid fumes, dusts, 21 gases, and hazards. (Joint Stip. at 22.) 22 23 According to the DOT, an electronics worker is exposed to “toxic caustic chemicals” 24 on an occasional basis, meaning that the condition exists up to one-third of the time. DOT 25 726.687-010. An electronics worker must also use handtools, power tools, and heating 26 equipment in order to assemble and disassemble parts. Id. On the other hand, an electronics 27 worker is not exposed to “atmospheric conditions” or any other irritants that would interfere 28 with, for example, a worker who has breathing problems. Id. 16 1 2 The Commissioner relies on the absence of atmospheric conditions and air pollutants 3 for the electronics worker occupation to argue that no conflict arose. (Joint Stip. at 24-25.) 4 This argument is not well-taken because it is under-inclusive of what the ALJ found. The 5 ALJ did not find that Plaintiff must avoid only atmospheric conditions or air pollutants. 6 Rather, the ALJ found that Plaintiff must also avoid “hazards,” a broad term that 7 encompasses more than just atmospheric conditions or air pollutants. 8 Commissioner’s own relevant definition of “hazards” appears to contemplate two working 9 conditions for the electronics worker occupation: (1) the various types of tools and 10 equipment that must be used by an electronics worker, and (2) the occasional exposure to 11 toxic, caustic chemicals. 12 (defining “hazards,” for purposes of the DOT, to include “moving mechanical parts of 13 equipment, tools, or machinery; electrical shock; working in high, exposed places; exposure 14 to radiation; working with explosives; and exposure to toxic, caustic chemicals”) (emphasis 15 added). Thus, the Commissioner’s focus on atmospheric conditions and air pollutants does 16 not fully address the scope of the conflict for this occupation. Since the ALJ precluded 17 Plaintiff from exposure to a broad category of “hazards,” the ALJ’s finding as to the 18 electronics worker occupation raised an apparent and unresolved conflict with the DOT. Indeed, the See Social Security Ruling 96-9P, 1996 WL 374185, at *9 19 20 This error is insufficient, however, to warrant reversal of the ALJ’s decision. As the 21 Commissioner points out (Joint Stip. at 25), even if the occupation of electronics worker 22 raised an apparent and unresolved conflict with the DOT, the ALJ’s error in relying on that 23 occupation would be harmless in light of the other two alternative occupations cited in the 24 step five determination, as discussed below. See Buckins v. Berryhill, 706 F. App’x 380, 381 25 (9th Cir. 2017) (unresolved DOT conflicts amount to harmless error where the ALJ identifies 26 alternative occupations yielding a significant number of jobs). 27 // 28 // 17 2. 1 Cashier and Ticket Taker 2 3 The other two occupations identified by the VE at step five were cashier (DOT 4 211.462-010) and ticket taker (DOT 344.667-010). (AR 73-74.) According to the DOT, 5 both occupations are classified as “light,” meaning that the worker would have to exert 20 6 pounds of force occasionally and 10 pounds of force frequently. 7 344.667-010. Neither occupation involves exposure to any atmospheric conditions or any 8 hazards such as toxic, caustic chemicals. Id. Although the cashier occupation does involve 9 the use of an adding machine or cash register, it does not involve the use of potentially 10 DOT 211.462-010, hazardous equipment, tools, or machinery. DOT 211.462-010. 11 12 As VE testified, the occupation of cashier has more than a million jobs in the national 13 economy, and the occupation of ticket taker has more than 60,000 jobs in the national 14 economy. (AR 73-74.) Plaintiff does not dispute these numbers, which together or alone 15 easily clear the threshold for a significant number of jobs. See Gutierrez, 740 F.3d at 528 16 (holding that 25,000 national jobs constitute a significant number). Plaintiff’s only argument 17 in this regard is that she cannot perform the light job requirements for either of these 18 occupations. 19 determination that she can perform light work, for all of the reasons discussed above. Thus, 20 this issue does not warrant reversal of the ALJ’s decision. (Joint Stip. at 22.) But she has not demonstrated error in the ALJ’s 21 22 CONCLUSION 23 24 25 26 For the reasons stated above, the Court finds that the Commissioner’s decision is supported by substantial evidence and free from material legal error. Neither reversal of the ALJ’s decision nor remand is warranted. 27 28 18 1 2 Accordingly, IT IS ORDERED that Judgment shall be entered affirming the decision of the Commissioner of the Social Security Administration. 3 4 IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this 5 Memorandum Opinion and Order and the Judgment on counsel for Plaintiff and for 6 Defendant. 7 8 LET JUDGMENT BE ENTERED ACCORDINGLY. 9 10 DATE: March 13, 2018 11 12 ___________________________________ KAREN L. STEVENSON UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19
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