Laura Nava v. Carolyn w. Colvin, No. 8:2015cv01755 - Document 25 (C.D. Cal. 2017)
Court Description: MEMORANDUM AND OPINION by Magistrate Judge Andrew J. Wistrich: Commissioner's decision is supported by substantial evidence and is free of reversible legal error. Accordingly, the Commissioner's decision is affirmed. (See document for further details.) (jsan)
Download PDF
<![CDATA[
Laura Nava v. Carolyn w. Colvin Doc. 25 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION 11 12 13 14 15 16 LAURA NAVA, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, Acting ) Commissioner of the Social ) Security Administration, ) ) Defendant. ) ____________________________________ ) Case No. SACV 15-1755 AJW MEMORANDUM OF DECISION 17 18 Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the 19 Social Security Administration (the “Commissioner”), denying plaintiff’s application for supplemental 20 security income. The parties have filed a Joint Stipulation (“JS”) setting forth their contentions with respect 21 to each disputed issue. 22 Administrative Proceedings 23 The parties are familiar with the procedural facts, which are summarized in the Joint Stipulation. 24 [See JS 2-4]. After an administrative hearing, an Administrative Law Judge (“ALJ”) issued a written 25 decision denying benefits. [AR 14-26]. The ALJ found that plaintiff had the following severe impairments: 26 substance addiction disorder in remission and back strain. [AR 16]. The ALJ further found that plaintiff 27 retained the residual functional capacity (“RFC”) to “perform light work . . . except: [plaintiff] can lift 28 and/or carry twenty pounds occasionally, ten pounds frequently; [plaintiff] can stand or walk for four hours Dockets.Justia.com 1 out of an eight-hour workday with normal breaks; [plaintiff] can sit for six hours out of an eight-hour 2 workday with normal breaks; [plaintiff] can perform complex tasks; [plaintiff] can perform work that 3 requires frequent changes in the work setting; [plaintiff] is limited to jobs with no more than normal and 4 ordinary pressures of common work; [and plaintiff] is restricted from highly stressful jobs, such as high 5 production quotas and dynamic teamwork.” [AR 18]. Based on the testimony of a vocational expert (“VE”), 6 the ALJ determined that plaintiff could perform her past relevant work as an office manager. [AR 25]. 7 Accordingly, the ALJ found that plaintiff was not disabled at any time from the date her SSI application was 8 filed through the date of the ALJ’s decision. [AR 26]. 9 Standard of Review 10 The Commissioner’s denial of benefits should be disturbed only if it is not supported by substantial 11 evidence or is based on legal error. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015); Thomas 12 v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). “Substantial evidence” means “more than a mere scintilla, 13 but less than a preponderance.” Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). “It is such 14 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Burch v. 15 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (internal quotation marks omitted). The court is required to 16 review the record as a whole and to consider evidence detracting from the decision as well as evidence 17 supporting the decision. Robbins v. Soc. Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 18 188 F.3d 1087, 1089 (9th Cir. 1999). “Where the evidence is susceptible to more than one rational 19 interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld. Thomas v. 20 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citing Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 21 599 (9th Cir. 1999)). 22 Discussion 23 Medical opinion evidence 24 Plaintiff contends that the ALJ erred in evaluating the opinions of her psychiatric treating sources, 25 J. Kellogg, M.D., and nurse practitioner Dana Lambrose. [JS 13]. 26 A treating or examining physician’s opinion is not binding on the Commissioner with respect to the 27 existence of an impairment or the ultimate issue of disability. Tonapetyan v. Halter, 242 F.3d 1144, 1148 28 (9th Cir. 2001). Where, however, a treating physician's medical opinion as to the nature and severity of an 2 1 individual's impairment is well-supported and not inconsistent with other substantial evidence in the record, 2 that opinion is entitled to controlling weight. Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001); 3 Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 4 416.927(c)(2); Social Security Ruling (“SSR”) 96-2p, 1996 WL 374188, at *1-*2. Even when not entitled 5 to controlling weight, “treating source medical opinions are still entitled to deference and must be weighed” 6 in light of (1) the length of the treatment relationship; (2) the frequency of examination; (3) the nature and 7 extent of the treatment relationship; (4) the supportability of the diagnosis; (5) consistency with other 8 evidence in the record; and (6) the area of specialization. Edlund, 253 F.3d at 1157 & n.6 (quoting SSR 96- 9 2p and citing 20 C.F.R. § 404.1527); Holohan, 246 F.3d at 1202. 2001); see 20 C.F.R. §§ 404.1527(c)(2), 10 The ALJ must provide clear and convincing reasons, supported by substantial evidence in the record, 11 for rejecting an uncontroverted treating source opinion. If contradicted by that of another doctor, a treating 12 or examining source opinion may be rejected for specific and legitimate reasons that are based on substantial 13 evidence in the record. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); 14 Tonapetyan, 242 F.3d at 1148-1149; Lester v. Chater, 81 F.3d 821, 830-831 (9th Cir. 1995). “The opinion 15 of a nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of 16 the opinion of either an examining physician or a treating physician.” Lester, 81 F.3d at 831. 17 The record in this case contains conflicting medical treating, examining, and nonexamining source 18 opinions. Accordingly, the ALJ was entitled to reject the treating and examining source opinions so long 19 as he articulated specific and legitimate reasons supported by substantial evidence for doing so. 20 In reaching his June 25, 2015 decision denying benefits, the ALJ considered treating and examining 21 source records from Progeny Psychiatric Group, where plaintiff began outpatient psychiatric treatment in 22 May 2014. [See AR 376-402]. Plaintiff was seen monthly for psychotherapy and medication management, 23 usually by nurse practitioner Dana Lambrose but occasionally by other clinicians who were not physicians. 24 None of those treatment reports indicate that plaintiff was seen by Dr. Kellogg or by another physician, nor 25 do Ms. Lambrose’s reports contain any indication that a physician reviewed Ms. Lambrose’s reports. [See 26 AR 376-398]. 27 On June 1, 2015, Ms. Lambrose and Dr. Kellogg completed a mental medical source questionnaire 28 indicating that plaintiff is precluded from every rated ability and aptitude necessary for unskilled work for 3 1 15% or more of an eight-hour workday, including “carry[ing] out very short and simple instructions,” and 2 “sustain[ing] an ordinary routine without special supervision.” [AR 401]. They also indicated that plaintiff 3 would find all of the rated work demands “stressful,” including “getting to work regularly,” “making 4 decisions,” “completing tasks,” and dealing with supervisors and the public. [AR 402]. Ms. Lambrose and 5 Dr. Kellogg opined that plaintiff had a range of symptoms and disorders, including bipolar syndrome and 6 severe panic attacks. [AR 400]. 7 The ALJ permissibly found that the questionnaire completed by Dr. Kellogg and Ms. Lambrose was 8 inconsistent with the treatment reports from Progeny Psychiatric Group as well as with the findings and 9 conclusions of the examining psychiatrist, Dr. Aguilar. For example, the questionnaire states that plaintiff’s 10 highest Global Assessment of Function (“GAF”) score in the past year was 45. [AR 400]. On May 27, 11 2014, however, Ms. Lambrose recorded plaintiff’s GAF score as 75.1 [AR 397]. See Morgan, 169 F.3d at 12 603 (holding that the ALJ permissibly rejected the treating and examining sources' opinions in favor of a 13 nonexamining source opinion based on inconsistencies within, and between, the treating and examining 14 1 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Under the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, a clinician’s GAF score provides “a rough estimate of an individual's psychological, social, and occupational functioning used to reflect the individual's need for treatment.” Garrison v. Colvin, 759 F.3d 995, 1003 n.4 (9th Cir. 2014) (quoting Vargas v. Lambert, 159 F.3d 1161, 1164 n. 2 (9th Cir.1998) and citing SSR 85-15); see Diagnostic and Statistical Manual of Mental Disorders, 31–34 (4th ed. rev. 2000) (“DSM-IV”). “[T]he fifth edition of the Diagnostic and Statistical Manual of Mental Disorders issued May 27, 2013, abandoned the GAF scale in favor of standardized assessments for symptom severity, diagnostic severity, and disability . . . . ” Wilson v. Colvin, 72 F. Supp. 3d 1159, 1164 & n. 2 (D. Or. 2014) (citing Diagnostic and Statistical Manual of Mental Disorders, 16 (5th ed. 2013) (“DSM-V”)); see Lees v. Colvin, 2014 WL 2896004, at *2 (W.D. Wash. June 25, 2014) (“The most recent version of the DSM does not include a GAF rating for assessment of mental disorders.”) (citing DSM–V at 16-17). The Commissioner “continues to receive and consider GAF scores from acceptable medical sources as opinion evidence, [but] a GAF score cannot alone be used to raise or lower someone's level of function, and, unless the reasons behind the rating and the applicable time period are clearly explained, it does not provide a reliable longitudinal picture of the claimant's mental functioning for a disability analysis.” Lees, 2014 WL 2896004, at *2 (internal quotation marks omitted). Under the DSM-IV, a GAF score between 41 and 50 signifies serious symptoms or any serious impairment in social, occupational, or school functioning; s GAF score between 51 and 60 describes moderate symptoms or any moderate difficulty in social, occupational, or school functioning; and a GAF score between 71 and 80 indicates that if symptoms are present, they are transient and expectable reactions to psychosocial stressors, representing no more than a slight impairment in social, occupational, or school functioning. See Garrison, 759 F.3d at 1003 n. 4; DSM-IV at 31-34. 4 1 source reports). Additionally, the treating source reports provide little objective or clinical support for the 2 conclusions expressed by Ms. Lambrose and Dr. Kellogg. See Bayliss, 427 F.3d at 1217 (noting that “an 3 ALJ need not accept the opinion of a doctor if that opinion is brief, conclusory, and inadequately supported 4 by clinical findings,” and holding that the ALJ properly rejected a treating physician's opinion in part 5 because it was contradicted by the doctor's treatment notes); Connett v. Barnhart, 340 F.3d 871, 874-875 6 (9th Cir. 2003) (holding that the ALJ did not err in rejecting the controverted opinion of a treating physician 7 whose restrictive functional assessment was not supported by his treatment notes). Ms. Lambrose’s 8 treatment notes briefly record her observations and plaintiff’s statements, and in general tend to show some 9 variation in plaintiff’s well-being related to her medication compliance and admitted use of illicit 10 substances. For example, in July 2014, Ms. Lambrose recorded that plaintiff’s mood was “euthymic,” and 11 her behavior was “cooperative and calm,” noting “significant improvement” and an effective regimen of 12 medication. [AR 390]. Yet in August 2014, Ms. Lambrose observed that plaintiff’s mood was “labile” and 13 her behavior was “restless,” and plaintiff reported that she was “checking into a detox this evening – 14 methamphetamine addiction.” [AR 387]. In September 2014, plaintiff said that she was six weeks sober and 15 was going to the gym every day. [AR 387]. In October 2014, plaintiff told Ms. Lambrose “I have my brain 16 back again. I can think and get things done.” [AR 381]. In November 2014, Ms. Lambrose found that 17 plaintiff was “happy” and “cooperative,” showed “significant improvement,” and was “sleeping well.” [AR 18 380]. On December 8, 2014, however, plaintiff called the clinic saying that she looked and felt like a 19 “wreck” and could not attend her appointment. Ms. Lambrose instructed her to go to the emergency room 20 for evaluation. [AR 379]. A report from December 29, 2014 noted that plaintiff was “happy” and “stable,” 21 and that her medications “are effective per expectations.” Plaintiff disclosed that she was planning on 22 “entering rehab in one month . . . .” [AR 377]. In February 2015, plaintiff was noted to be “non-adherent” 23 with medications prescribed for schizophrenia and insomnia (Saphris and Trazodone); she reported that she 24 was not experiencing psychosis or insomnia and “no longer wishes to take them.” [AR 376]. Plaintiff 25 exhibited “good response” to her other prescribed medications, Wellbutrin, Prozac, Vitamin B12, and 26 Adderall, which were prescribed “to control[] PTSD symptoms, depression, and inattentiveness.” [AR 376]. 27 The ALJ permissibly determined that Dr. Kellogg and Ms. Lambrose’s questionnaire is 28 “inadequately supported by clinical findings” and that the treating source reports “document[ed] 5 1 significantly improved symptoms during periods of medication compliance and abstinence from illegal 2 substances,” undermining the conclusions expressed in their questionnaire. [AR 24]. 3 The ALJ also relied on the June 2014 opinion of the consultative psychiatric examiner, Norma R. 4 Aguilar, M.D., who interviewed plaintiff and conducted a mental status examination. Plaintiff reported that 5 she had abused prescription narcotics until a month earlier and had started psychiatric treatment at about 6 the same time, with a “fair response” to prescribed medication and weekly psychotherapy sessions. [AR 7 278]. Dr. Aguilar found that plaintiff was “cooperative” with normal speech, a “slightly depressed” mood 8 and a “slightly constricted” affect, without delusions or hallucinations, with grossly normal memory, 9 concentration, information fund and judgment. [AR 279-280]. Dr. Aguilar diagnosed PTSD and “Alcohol 10 and Other Substance Abuse, in partial remission.” [AR 280]. She opined that plaintiff was moderately 11 limited in her ability to respond to work pressure and mildly limited in her ability to respond to changes in 12 a routine work setting and daily living, but had no limitation following simple or detailed job instructions, 13 interacting with others, or complying with job rules. [AR 280-281]. Dr. Aguilar gave plaintiff a GAF score 14 of 55-60, denoting moderate symptoms or moderate or any moderate difficulty in social, occupational, or 15 school functioning. [AR 22]. Dr. Aguilar opined that plaintiff’s “prognosis is poor at present but fair with 16 stabilization and abstinence from drugs.” [AR 281]. The ALJ concluded that Dr. Aguilar’s report was 17 consistent with the evidence as a whole and gave it “great weight.” [AR 24]. 18 Additionally, the ALJ gave some weight to the July 2014 opinion of a nonexamining state agency 19 psychologist who concluded that plaintiff was only mildly impaired in activities of daily living, social 20 functioning, and maintaining concentration, persistence or pace, and that she did not have any severe mental 21 impairment. [AR 24, 79]. 22 The ALJ’s evaluation of the medical evidence is supported by substantial evidence in the record. 23 The ALJ assessed plaintiff’s medical records as a whole, including treating source notes concerning 24 plaintiff’s therapy sessions, medications, and response to treatment, as well as the reports of the 25 Commissioner’s consultative examining and nonexamining sources. The ALJ did not err in giving little 26 weight to the questionnaire signed by Ms. Lambrose and Dr. Kellogg. 27 Credibility finding 28 Plaintiff contends that the ALJ failed to articulate legally sufficient reasons for rejecting her 6 1 testimony regarding her subjective symptoms. [JS 21-24]. 2 If the record contains objective evidence of an underlying physical or mental impairment that is 3 reasonably likely to be the source of a claimant’s subjective symptoms, the ALJ is required to consider all 4 subjective testimony as to the severity of the symptoms. Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 5 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc); see also 20 C.F.R. §§ 404.1529(a), 6 416.929(a) (explaining how pain and other symptoms are evaluated). 7 malingering, the ALJ must then provide specific, clear and convincing reasons for rejecting a claimant’s 8 subjective complaints. Vasquez v. Astrue, 547 F.3d 1101, 1105 (9th Cir. 2008); Carmickle v. Comm’r, Soc. 9 Sec. Admin., 533 F.3d 1155, 1160-1161 (9th Cir. 2008); Moisa, 367 F.3d at 885. “In reaching a credibility 10 determination, an ALJ may weigh inconsistencies between the claimant's testimony and his or her conduct, 11 daily activities, and work record, among other factors.” Bray v. Comm’r of Social Sec. Admin., 554 F.3d 12 1219, 1221, 1227 (9th Cir. 2009); Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir.1997). The ALJ's 13 credibility findings “must be sufficiently specific to allow a reviewing court to conclude the ALJ rejected 14 the claimant's testimony on permissible grounds and did not arbitrarily discredit the claimant's testimony.” 15 Moisa, 367 F.3d at 885. If the ALJ's interpretation of the claimant's testimony is reasonable and is 16 supported by substantial evidence, it is not the court's role to “second-guess” it. Rollins v. Massanari, 261 17 F.3d 853, 857 (9th Cir. 2001). Absent affirmative evidence of 18 At the administrative hearing, plaintiff testified that she is unable to work due to anxiety, PTSD, 19 guilt, shame, physical pain, depression, night terrors and panic attacks. [AR 43-45]. According to plaintiff, 20 she has crying spells when she realizes she does not fit in with the mainstream world. [AR 45]. She reported 21 difficulty concentrating and initiating tasks, and she described her behavior as erratic. [AR 41, 46]. She says 22 she has anxiety attacks that “used to last for weeks or months.” [AR 48]. The medications that she takes for 23 her psychiatric conditions make her feel sleepy, and she has to take a nap every day. [AR 50]. She testified 24 that she cannot get out of bed due to pain, and wears a diaper at night. [AR 45]. She further testified that 25 she has a history of illegal drug use, and that she once went a period of six months without using illegal 26 drugs. [AR 50-51]. She testified that she experienced anxiety when she was not using drugs. [AR 51]. 27 The ALJ found that plaintiff had severe impairments consisting of back strain and alcohol and drug 28 dependence in remission, but that plaintiff’s allegations as to the intensity, duration and functionally limiting 7 1 effects of those impairments were not fully credible. [AR 20-24]. The ALJ gave legally sufficient reasons 2 for rejecting plaintiff’s credibility. 3 First, the ALJ rejected plaintiff’s credibility because “the objective medical evidence does not 4 support the alleged severity of symptoms.” [AR 24]. “Although lack of medical evidence cannot form the 5 sole basis of discounting pain testimony, it is a factor that the ALJ can consider in his credibility analysis.” 6 Burch, 400 F.3d at 681; Rollins, 261 F.3d at 857 (noting that “[w]hile subjective pain testimony cannot be 7 rejected on the sole ground that it is not fully corroborated by objective medical evidence, the medical 8 evidence is still a relevant factor in determining the severity of the claimant's pain and its disability effects”). 9 No physician testified that plaintiff is as physically limited as she maintains, or that she is disabled by her 10 pain or anxiety . Rather, John Sedgh, M.D., a board-certified internist, examined plaintiff and reported that 11 her cervical spine, lumber spine, shoulders, elbows, wrists, hands, hips, ankles, motor strength, sensation, 12 reflexes, cranial nerves, and gait were all within normal limits. [AR 266-269]. See Parra v. Astrue, 481 F.3d 13 742, 750 (9th Cir. 2007) (holding that the ALJ permissibly discounted the claimant’s complaints of bursitis- 14 related knee pain based on laboratory tests showing knee function within normal limits). Dr. Sedgh opined 15 that plaintiff “can lift and carry 50 pounds occasionally and 25 pounds frequently. She can stand and walk 16 six hours in an eight-hour day with normal breaks. She can sit for six hours in an eight-hour day. Kneeling, 17 crouching and stooping should be limited to frequent. She can reach above shoulder level and perform fine 18 and gross manipulation without limitations.” [AR 269]. 19 Moreover, as noted above, the ALJ permissibly determined that the treating source objective and 20 clinical findings were inconsistent with the existence of a disabling mental disorder and instead indicated 21 that plaintiff responded well to treatment when she was compliant with her medications and abstained from 22 illegal substance abuse. [See AR 22-24]. The ALJ properly relied on the lack of corroborating medical 23 evidence as a factor in his credibility assessment. See, e.g., Stubbs-Danielson v. Astrue, 539 F.3d 1169, 24 1175 (9th Cir. 2008) (noting that the medical evidence, including medical reports which found that the 25 claimant could perform a limited range of work, supported the ALJ’s credibility determination). 26 Next, the ALJ noted that plaintiff “has not generally received the type of medical treatment one 27 would expect for a totally disabled individual.” [AR 20]. “[A] conservative course of treatment can 28 undermine allegations of debilitating pain.” Carmickle, 533 F.3d at 1162; Orn v. Astrue, 495 F.3d 625, 638 8 1 (9th Cir. 2007). Plaintiff alleged that she was unable to get out of bed due to pain. [AR 18]. Aside from 2 a May 2015 spinal health evaluation recommending a back brace that “immediately reduced [plaintiff’s] 3 low back pain to minimal levels” [AR 399], the record contains little evidence that plaintiff complained of 4 or sought treatment for such pain in recent years. The ALJ permissibly discounted plaintiff’s subjective pain 5 complaints based on her history of conservative treatment. See Tommasetti v. Astrue, 533 F.3d 1035, 1039 6 (9th Cir. 2008) (holding that the ALJ permissibly inferred that the claimant’s “pain was not as all-disabling 7 as he reported in light of the fact that he did not seek an aggressive treatment program” and “responded 8 favorably to conservative treatment including physical therapy and the use of anti-inflammatory medication, 9 a transcutaneous electrical nerve stimulation unit, and a lumbosacral corset”) (citing Parra, 481 F.3d at 10 750–751 (stating that “evidence of ‘conservative treatment’ is sufficient to discount a claimant's testimony 11 regarding severity of an impairment”); Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (“Our case law is 12 clear that if a claimant complains about disabling pain but . . . fails to follow prescribed treatment[] for the 13 pain, an ALJ may use such failure as a basis for finding the complaint unjustified or exaggerated.”); Warre 14 v. Comm’r of the Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2005) (“Impairments that can be 15 controlled effectively with medication are not disabling.”); Osenbrock v. Apfel, 240 F.3d 1157, 1166 (9th 16 Cir. 2001) (holding that the ALJ properly rejected the claimant’s testimony because he did not use “Codeine 17 or Morphine based analgesics that are commonly prescribed for severe and unremitting pain”). 18 Finally, the ALJ summarized plaintiff’s testimony and written statements regarding her daily 19 activities. [See AR 18-20]. Although plaintiff reported that her ability to carry out daily activities varied, 20 she reported that at time she was able to care for pets, prepare occasional meals, perform personal grooming 21 activities (but sometimes needed reminders), do laundry at the laundromat (where she said that she 22 sometimes had panic attacks), spend time with her boyfriend or others on a one-on-one basis, occasionally 23 attend church, and spend time reading. [See AR 18-20, 47-50, 176-183, 204-212]. The ALJ determined that 24 plaintiff’s “ability to participate in such activities [of daily living] undermined the credibility of [her] 25 allegations of disabling functional limitations.” [AR 20]. 26 The Ninth Circuit has “repeatedly warned that ALJs must be especially cautious in concluding that 27 daily activities are inconsistent with testimony about pain, because impairments that would unquestionably 28 preclude work and all the pressures of a workplace environment will often be consistent with doing more 9 1 than merely resting in bed all day,” and it has held that an ALJ erred in concluding that a claimant’s daily 2 activities that “included talking on the phone, preparing meals, cleaning her room, and helping to care for 3 her daughter” were inconsistent with the claimant’s pain complaints. Garrison v. Colvin, 759 F.3d 995, 4 1015-1016 (9th Cir. 2014); see Molina v. Astrue, 674 F.3d 1104, 1112-1113 (9th Cir. 2012) (stating that 5 an ALJ may consider “whether the claimant engages in daily activities inconsistent with the alleged 6 symptoms” and whether “the claimant reports participation in everyday activities indicating capacities that 7 are transferable to a work setting,” and noting that “[e]ven where those activities suggest some difficulty 8 functioning, they may be grounds for discrediting the claimant's testimony to the extent that they contradict 9 claims of a totally debilitating impairment”). The ALJ erred in relying on plaintiff’s reported daily activities 10 because those activities were not inconsistent with her subjective complaints, did not suggest that she was 11 capable of meeting the demands of a work on a sustained basis, and did not indicate capabilities that are 12 transferrable to a work setting. See Garrison, 759 F.3d at 1015-1016; Molina, 674 F.3d at 1112-1113. 13 Where, as here, an ALJ provides legally sufficient reasons supporting his credibility determination, 14 the ALJ’s reliance on erroneous reasons is harmless “[s]o long as there remains substantial evidence 15 supporting the ALJ's conclusions on credibility and the error does not negate the validity of the ALJ's 16 ultimate credibility conclusion . . . .” Carmickle, 533 F.3d at 1162 (internal quotation marks, ellipsis, and 17 alteration omitted); see generally McLeod v. Astrue, 640 F.3d 881, 886-888 (9th Cir. 2011) (holding that 18 the harmless error rule ordinarily applied in civil cases applies in social security disability cases, and that 19 the burden is on the party attacking the agency’s determination to show that prejudice resulted from the 20 error) (citing Shinseki v. Sanders, 556 U.S. 396, 406-409 (2009)). Since the ALJ articulated two other 21 legally sufficient reasons supporting his adverse credibility finding, his reliance on plaintiff’s daily activities 22 was harmless. 23 Past relevant work finding 24 Plaintiff argues that the ALJ erred at step four in determining that she could perform her past 25 relevant work as an office manager. [See AR 25]. Specifically, plaintiff contends that the requirements of 26 that job as set forth in the Dictionary of Occupational Titles (“DOT”) are inconsistent with her RFC. [JS 27 4-7]. Among several other limitations, plaintiff’s RFC restricts her “from highly stressful jobs, such as high 28 production quotas and dynamic teamwork.” [AR 18]. 10 1 A social security disability claimant bears the burden of proving that she cannot perform either the 2 “actual functional demands and job duties of a particular past relevant job” or the “functional demands and 3 job duties of the occupation as generally required by employers throughout the national economy.” Pinto 4 v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001) (quoting SSR 82-62); see also Burch, 400 F.3d at 679; Villa 5 v. Heckler, 797 F.2d 794, 798 (9th Cir. 1986). The ALJ’s obligation is “to make the requisite factual 6 findings to support” the conclusion that the claimant can perform past relevant work. “This is done by 7 looking at the residual functional capacity and the physical and mental demands of the claimant’s past 8 work.” Pinto, 249 F.3d at 844-845 (quoting 20 C.F.R. §§ 404.1520(e) and 416.920(e)). Because the claimant 9 bears the burden of proving her inability to perform past relevant work, the ALJ is not required to elicit or 10 rely on VE testimony in order to support a finding of non-disability at step four. Where, however, the ALJ’s 11 step-four finding rests on a determination that the claimant can perform her past relevant work “as generally 12 performed,” rather than as actually performed in a particular past job, the DOT or VE must be consulted to 13 determine the “functional demands and job duties of the occupation as generally required by employers 14 throughout the national economy.” Pinto, 249 F.3d at 845-846; see SSR 00-4p, 2000 WL 1898704, *2 (“In 15 making disability determinations, we rely primarily on the DOT (including its companion publication, the 16 SCO) for information about the requirements of work in the national economy. We use these publications 17 at steps 4 and 5 of the sequential evaluation process. We may also use VEs and VSs at these steps to resolve 18 complex vocational issues.”) (footnote omitted). If the ALJ wishes to rely on a VE’s testimony, the VE 19 “merely has to find that a claimant can or cannot continue his or her past relevant work as defined by the 20 regulations . . . .” Pinto, 249 F.3d at 845. Even with such VE testimony, however, the ALJ is not “in any 21 way relieved of his burden to make the appropriate findings to insure that the claimant really can perform 22 his or her past relevant work.” Pinto, 249 F.3d at 845. 23 An ALJ may not rely on a VE’s testimony regarding the requirements of a job as generally 24 performed at either step four or step five without first determining whether that testimony conflicts with the 25 DOT. See Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007); Pinto, 249 F.3d at 845-846. If an 26 apparent or obvious conflict exists, the ALJ may not rely on the VE’s testimony without asking the VE to 27 explain the conflict and then determining whether the VE’s explanation for the conflict is reasonable. 28 Gutierrez v. Colvin, 844 F. 3d 804, 807 (9th Cir. 2016); Zavalin v. Colvin, 778 F.3d 842, 846 (9th Cir. 11 1 2015); Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007); SSR 00-4p, 2000 WL 1898704, at *2-*4. 2 An “obvious or apparent” conflict “means that the [VE’s] testimony must be at odds with the [DOT] listing 3 of job requirements that are essential, integral, or expected.” Gutierrez, 844 F. 3d at 808. If no obvious or 4 apparent conflict exists between the specific skills identified by the DOT and the VE’s testimony, the ALJ 5 need not inquire further. Gutierrez, 844 F.3d at 807-808 (rejecting the argument that the ALJ erred at step 6 five by not asking the VE more specific questions about the claimant’s ability to perform a job because there 7 was no obvious or apparent conflict); see also Edwards v. Astrue, 2013 WL 1891764 at *6 (N.D. Cal. May 8 6, 2013) (“Error in failing to follow [SSR] 00-4p is harmless only if 1) there was no conflict; or 2) the VE 9 provided sufficient support for his conclusion to justify any potential conflicts.”) (citing Massachi, 486 10 F.3d at 1154 n. 19). 11 At the administrative hearing, the ALJ presented a hypothetical question to the VE as to whether 12 there are jobs in significant numbers in the economy for someone with plaintiff’s various physical and 13 mental limitations, given her age, education and work history. The VE testified that someone with those 14 limitations could perform plaintiff’s past work as an office manager. The VE classified that work as 15 sedentary, skilled work as generally performed pursuant to the DOT, and as sedentary, semiskilled work 16 as described by and actually performed by plaintiff. [See AR 25, 55, 227]. The ALJ determined that the 17 VE’s testimony was consistent with the DOT and accepted it, finding that plaintiff retained the ability to 18 perform her past relevant work as an office manager both as actually and generally performed. [AR 25]. 19 The DOT describes the duties of an office manager as follows: 20 Coordinates activities of clerical personnel in establishment or organization: Analyzes and 21 organizes operations and procedures, such as typing, bookkeeping, preparation of payrolls, 22 flow of correspondence, filing, requisition of supplies, and other clerical services. Evaluates 23 office production, revises procedures, or devises new forms to improve efficiency of 24 workflow. Establishes uniform correspondence procedures and style practices. Formulates 25 procedures for systematic retention, protection, retrieval, transfer, and disposal of records. 26 Plans office layouts and initiates cost reduction programs. Reviews clerical and personnel 27 records to ensure completeness, accuracy and timeliness. Prepares activities reports for 28 guidance of management using computer. Prepares employee ratings and conducts employee 12 1 benefit and insurance programs, using computer. Coordinates activities of various clerical 2 departments or workers within department. May prepare organizational budget and monthly 3 finance reports. May hire, train and supervise clerical staff. May compile, store, and retrieve 4 managerial data, using computer. 5 DOT job no. 169.167-034, available at 1991 WL 647430. 6 Plaintiff contends that her RFC limitation against dynamic teamwork precludes her from performing 7 her past relevant work as an office manager as generally performed according to the DOT that job would 8 require her “to work and coordinate with other team members” and necessarily would entail “performing 9 a variety of duties, dealing with people, and making judgments and decisions . . . that can easily be 10 described as ‘dynamic.’” [JS 7, 11]. 11 Plaintiff’s contention lacks merit. There is no apparent or obvious conflict between plaintiff’s RFC 12 and the DOT description of the job of office manager. The RFC states that plaintiff “is restricted from highly 13 stressful jobs, such as high production quotas and dynamic teamwork.” [AR 18]. During the administrative 14 hearing, the ALJ asked the VE whether plaintiff could perform her past work, considering a limitation 15 against “any highly stressful jobs, such as high production quotas, teamwork, dynamic teamwork where 16 members of the team have to depend upon each other.” [AR 54 (italics added)]. The VE considered the 17 limitation and identified the office manager job as a job plaintiff could perform. [AR 55]. In context, it is 18 clear that the ALJ placed a limitation on plaintiff’s ability to do a “highly stressful” job, not a blanket 19 restriction on all jobs that require various duties and interaction with other people, as plaintiff contends. A 20 limitation against “dynamic teamwork” does not preclude plaintiff from all occupations requiring 21 interactions with others, nor does it preclude plaintiff from all occupations requiring teamwork. 22 Further, the DOT description of office manager does not indicate that it is a highly stressful job that 23 requires dynamic teamwork as an “essential, integral, or expected” job duty. Gutierrez, 844 F. 3d at 808 24 Plaintiff offers no support for her conclusory assertion that working and coordinating with other team 25 members is necessarily dynamic teamwork. See, e.g., Luster v. Colvin, 2013 WL 4479090, at *5 (C.D. Cal. 26 Aug. 19, 2013) (holding that plaintiff’s “unsupported assertions do not establish that there is any conflict” 27 between the DOT description of the job of counter clerk “and the VE’s testimony that an individual 28 precluded from fast-paced work and hypervigilance can perform the job of counter clerk.”); Jones v. Colvin, 13 1 2015 WL 1266789, *6 (C.D. Cal. Mar. 18, 2015) (“Plaintiff cites no legal authority for her contention that 2 the ALJ should not have relied on [the VE and the DOT], and the Court is aware of no legal authority that 3 permits an ALJ to reject VE testimony and the DOT whenever he feels it conflicts with ‘common sense’ 4 and his own personal experience.”). 5 Since plaintiff fails to demonstrate an “obvious or apparent” conflict, the ALJ had no duty to inquire 6 further of the VE and did not err in relying on the VE’s testimony to find that plaintiff could perform her 7 past relevant work as an office manager as generally performed according to the DOT. Even if the ALJ 8 erred in that respect, moreover, any error is harmless because plaintiff has not argued or shown that the RFC 9 assigned by the ALJ precluded her from performing her past relevant work as an office manager as she 10 actually performed that job. See Villa, 797 F.2d at 798 (stating that at step four, “[t]he claimant has the 11 burden of proving an inability to return to his former type of work and . . . to his former job”). 12 13 14 15 Conclusion For the reasons stated above, the Commissioner’s decision is supported by substantial evidence and is free of reversible legal error. Accordingly, the Commissioner’s decision is affirmed. IT IS SO ORDERED. 16 17 18 19 February 21, 2017 _____________________________ ANDREW J. WISTRICH United States Magistrate Judge 20 21 22 23 24 25 26 27 28 14
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
