Carmen Marquez v. Kilolo Kijakazi

• Court: District Court, C.D. California
• Decided: April 21, 2023
• Docket: 5:22-cv-00554
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

12 CARMEN M., Case No. 5:22-cv-00554-GJS 13 Plaintiff, v. MEMORANDUM OPINION AND 14 ORDER KILOLO KIJAKAZI, Acting 15 Commissioner of Social Security,

16 Defendant. 17 18 I. PROCEDURAL HISTORY 19 Plaintiff Carmen M.1 filed a Complaint seeking review of the decision of the 20 Commissioner of Social Security denying her application for a period of disability 21 and Disability Insurance Benefits (“DIB”). The parties filed consents to proceed 22 before a United States Magistrate Judge (ECF Nos. 12, 13) and briefs (ECF Nos. 18 23 (“Pl.’s Br.”) and 21 (“Def.’s Br.”)) addressing the disputed issues in the case. The 24 matter is now ready for decision. For the reasons set forth below, the Court finds 25 that this matter should be affirmed. 26

27 1 In the interest of privacy, this Order uses only the first name and last initial of 28 the non-governmental party in this case. 1 2 Plaintiff filed an application for DIB on August 1, 2019, alleging disability 3 commencing on March 1, 2018. (ECF No. 17, Administrative Record (“AR”) 21; 4 see also AR 231.) Plaintiff’s application was denied at the initial level of review 5 and on reconsideration. (AR 21, 57-68, 70-86.) A telephonic hearing was held 6 before Administrative Law Judge Daniel Balutis (“the ALJ”) on June 2, 2021, with 7 the assistance of an interpreter. (AR 21, 36-56.) 8 On June 15, 2021, the ALJ issued an unfavorable decision applying the five- 9 step sequential evaluation process for assessing disability. (AR 21-30); see 20 10 C.F.R. § 404.1520(b)-(g)(1). At step one, the ALJ determined that Plaintiff has not 11 engaged in substantial gainful activity since the alleged onset date. (AR 23.) At 12 step two, the ALJ determined that Plaintiff has the following severe impairments: 13 cervical degenerative disc disease and asthma. (AR 23.) At step three, the ALJ 14 determined that Plaintiff does not have an impairment or combination of 15 impairments that meets or medically equals the severity of one of the impairments 16 listed in Appendix 1 of the Regulations. (AR 24); see 20 C.F.R. pt. 404, subpt. P, 17 app. 1. The ALJ found that Plaintiff has the residual functional capacity (“RFC”) to 18 perform light work, as defined in 20 C.F.R. § 404.1567(b), as follows:

19 [S]he could occasionally balance, stoop, kneel, crouch, crawl, and climb 20 ramps and stairs, but must never climb ladders, ropes or scaffolds. She could occasionally reach overhead to the left and right. She could 21 tolerate frequent exposure to unprotected heights, moving mechanical parts, dust, oders, fumes and pulmonary irritants, extreme cold and 22 vibration. 23 (AR 26.) At step four, the ALJ determined that Plaintiff is able to perform her past 24 relevant work as a sorter of agricultural produce.2 (AR 29.) Based on these 25

26 2 Although the ALJ described the occupation as a sorter of agricultural 27 “products” (AR 29), the Dictionary of Occupational Titles (“DOT”) (4th ed. 1991) describes the occupation as a “Sorter, Agricultural Produce.” DOT No. 529.687- 28 186. 1 2 30.) 3 The Appeals Council denied review of the ALJ’s decision on January 28, 4 2022. (AR 1-7.) This action followed. 5 6 III. GOVERNING STANDARD 7 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 8 determine if: (1) the Commissioner’s findings are supported by substantial 9 evidence; and (2) the Commissioner used correct legal standards. See Carmickle v. 10 Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Brewes v. Comm’r 11 Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). “Substantial evidence . . . is 12 ‘more than a mere scintilla’ . . . [i]t means – and only means – ‘such relevant 13 evidence as a reasonable mind might accept as adequate to support a conclusion.’” 14 Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (citations omitted); Gutierrez v. 15 Comm’r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 2014) (internal quotation marks 16 and citation omitted). 17 The Court will uphold the Commissioner’s decision when “the evidence is 18 susceptible to more than one rational interpretation.” See Molina v. Astrue, 674 19 F.3d 1104, 1110 (9th Cir. 2012), superseded on other grounds by 20 C.F.R. § 20 404.1502(a). However, the Court may review only the reasons stated by the ALJ in 21 his decision “and may not affirm the ALJ on a ground upon which he did not rely.” 22 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court will not reverse the 23 Commissioner’s decision if it is based on harmless error, which exists if the error is 24 “inconsequential to the ultimate nondisability determination, or if despite the legal 25 error, the agency’s path may reasonably be discerned.” Brown-Hunter v. Colvin, 26 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations omitted). 27 // 28 1 2 Plaintiff raises the following issues challenging the ALJ’s findings and 3 determination of non-disability: (1) the ALJ failed to properly consider the opinion 4 of the consultative examiner Ibrahim Yashruti, M.D.; and (2) the ALJ failed to 5 properly follow the requirements of Social Security Ruling (“SSR”) 00-4p. (Pl.’s 6 Br. 1.) As discussed below, the Court disagrees with Plaintiff and finds that the 7 decision of the ALJ should be affirmed. 8 9 A. DR. YASHRUTI’S OVERHEAD LIFTING WEIGHT LIMITATION 10 1. Legal Standard 11 For claims filed on or after March 27, 2017, new regulations apply that 12 change the framework for how an ALJ must evaluate medical opinion evidence. See 13 Revisions to Rules Regarding Evaluation of Medical Evidence, 2017 WL 168819, 14 82 Fed. Reg. 5844-01 (Jan. 18, 2017); 20 C.F.R. § 404.1520c. The new regulations 15 provide the ALJ will no longer “give any specific evidentiary weight, including 16 controlling weight, to any medical opinion(s) or prior administrative medical 17 finding(s), including those from [a claimant’s] medical sources.” 20 C.F.R. § 18 404.1520c(a). Instead, an ALJ must consider and evaluate the persuasiveness of all 19 medical opinions or prior administrative medical findings. 20 C.F.R. § 20 404.1520c(b). The factors for evaluating the persuasiveness of medical opinions 21 and prior administrative medical findings include supportability, consistency, 22 relationship with the claimant (including the length of the treatment relationship, 23 frequency of examinations, purpose of the treatment relationship, extent of the 24 treatment relationship, and the examining relationship3), specialization, and “other 25 3 The regulations state that “[a] medical source may have a better 26 understanding of [the claimant’s] impairments if he or she examines [the claimant] 27 than if the medical source only reviews evidence in [the claimant’s] folder.” 20 C.F.R. § 404.1520c(c)(3)(v). 28 1 2 medical finding” (including, but not limited to, “evidence showing a medical source 3 has familiarity with the other evidence in the claim or an understanding of [the 4 Agency’s] disability program’s policies and evidentiary requirements”). 20 C.F.R. § 5 404.1520c(c)(1)-(5). 6 Supportability and consistency are the most important factors, and therefore, 7 the ALJ is required to explain how both factors were considered.4 See 20 C.F.R. § 8 404.1520c(b)(2). The ALJ may, but is not required to, explain how factors such as 9 the “[r]elationship with the claimant,” “[s]pecialization,” and “other factors that tend 10 to support or contradict a medical opinion or prior administrative medical finding,” 11 were considered. 20 C.F.R. § 404.1520c(b)(2). However, when the ALJ finds that 12 two or more medical opinions are equally well-supported and consistent with the 13 record but are not “exactly the same,” he must articulate how he “considered the 14 other most persuasive factors.” 20 C.F.R. § 404.1520c(b)(3). Further, while these 15 new regulations eliminate the hierarchy between treating, examining, and non- 16 examining medical sources, the ALJ must still provide an explanation supported by 17 18 4 Supportability and consistency are explained in the regulations as follows: 19

20 (1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support 21 his or her medical opinion(s) or prior administrative medical finding(s), 22 the more persuasive the medical opinions or prior administrative medical finding(s) will be. 23

24 (2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other 25 medical sources and nonmedical sources in the claim, the more 26 persuasive the medical opinion(s) or prior administrative finding(s) will be. 27

28 20 C.F.R. § 404.1520c(c)(1)-(2). 1 2 Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) (noting that even under the new 3 regulations, an ALJ cannot reject an examining or treating doctor’s opinion as 4 unsupported or inconsistent without providing an explanation supported by 5 substantial evidence). 6 7 2. The Parties’ Contentions 8 Plaintiff notes that Dr. Yashruti conducted a complete orthopedic examination 9 of Plaintiff on November 4, 2019. (Pl.’s Br. 2 (citing AR 489-94).) 10 The ALJ found Dr. Yashruti’s opinion to be persuasive, and summarized it as 11 follows:

12 Dr. Yashruti opined [Plaintiff] could lift up [sic] waist level, up to 50 13 pounds occasionally and 25 pounds frequently, and above shoulder level, she could lift 10 pounds occasionally and less than 10 pounds frequently. 14 Dr. Yashruti noted that she has no manipulative limitations, no postural limitations; [she] could sit with no limitations, stand and walk for six 15 hours a day in an 8-hour workday. The undersigned finds Dr. Yashruti’s opinion persuasive, as it is generally supported by and consistent with 16 the medical evidence of record. [She] is diagnosed with asthma and has 17 no record of exacerbations since May 2019, and no inpatient hospitalizations due to asthma complications. She is diagnosed with 18 degenerative disc disease of the cervical spine and her physical exam findings show a decreased range of motion in neck and lower back, 19 tenderness in her neck, 5/5 strength throughout except for bilateral biceps 20 which were 4/5, and no sensory or reflex deficits noted. She manages her own personal care, cooks, cleans, drives, albeit all with limitations. 21 As such, the undersigned finds [Plaintiff] could perform light work as outlined in RFC [sic] above. 22 23 (AR 29 (citations omitted).) 24 Plaintiff argues that the ALJ failed to provide “any legitimate rationale for 25 partially rejecting Dr. Yashruti’s medical opinion.” (Pl.’s Br. 4.) Specifically, she 26 argues that, in his RFC, the ALJ failed to “place any additional weight restrictions 27 on Plaintiff’s ability to lift and carry objects at or above her shoulder level,” despite 28 1 2 lifting to ten pounds occasionally and less than ten pounds frequently, and the fact 3 that the ALJ found Dr. Yashruti’s opinion to be “persuasive.” (Pl.’s Br. 4 (citing 4 AR 26, 494).) 5 Plaintiff contends that the ALJ “committed a clear and reversible legal error” 6 by “failing to explain or justify his partial rejection of this probative medical 7 opinion.” (Pl.’s Br. 5.) She also submits that the error was not harmless because the 8 “sorter of agricultural products” occupation is the sole job identified in the decision, 9 the job is performed at the light exertional level, and the ALJ “did not obtain any 10 testimony from the vocational expert regarding whether a worker who is limited to 11 lifting no more than ten pounds of weight at or above shoulder level would still be 12 able to perform this job in a competitive work setting.” (Pl.’s Br. 5 (citing AR 29- 13 30, 51-55).). Plaintiff concludes that if that limitation had been included in her 14 RFC, “it is possible that this additional limitation would have eliminated the job of 15 sorter of agricultural produce, resulting in a different outcome in this case.” (Pl.’s 16 Br. 5.) 17 Defendant acknowledges that “despite finding Dr. Yashruti’s opinion to be 18 persuasive,” the ALJ’s RFC determination that Plaintiff “could perform light work, 19 but would be further limited to ‘occasionally reach overhead to the left and right,’” 20 “was somewhat inconsistent therewith.” (Def.’s Br. 2.) She notes that “[t]he ALJ’s 21 RFC finding for light work would theoretically allow Plaintiff to lift up to 20 pounds 22 occasionally, with no limitation to that lifting being performed below shoulder 23 level.” (Def.’s Br. 2.) Defendant contends, however, that this error was harmless 24 because the step four job upon which the ALJ relied “would not involve lifting more 25 than 10 pounds above the shoulder.” (Def.’s Br. 2). 26 Specifically, Defendant notes that the requirements for the occupation of 27 sorter of agricultural produce are described by the Dictionary of Occupational Titles 28 1 2 Segregates produce on conveyor belt or table, working as crewmember, 3 according to grade, color, and size, and places produce in containers on designated conveyors. Discards cull (inferior or defective) items and 4 foreign matter. Bunches, ties, and trims produce, such as asparagus, carrots, celery, and radishes. Picks out choice produce to be used as 5 cappers (top layers) on marketing containers. 6 7 (Def.’s Br. 2 (citing DOT No. 529.687-186).) Defendant points out that this 8 occupation is described as being performed “on conveyor belt or table,” i.e., at waist 9 level, and that “[n]owhere in the job description does it suggest that a worker would 10 ever be required to lift more than 10 pounds above shoulder level.” (Def.’s Br. 2-3.) 11 Defendant concludes, therefore, that because Dr. Yashruti’s ten pound above-the- 12 shoulder lifting limitation -- even if included in the RFC determination -- would not 13 preclude performance of this job, any error in the ALJ’s consideration of this 14 limitation was harmless as a matter of law because it did not alter the outcome of the 15 decision. (Def.’s Br. 3.) 16 17 3. Analysis 18 The Court determines that even assuming the ALJ erred in failing to include 19 an overhead lifting limitation in Plaintiff’s RFC, that error was harmless. The Ninth 20 Circuit case of Gutierrez v. Colvin is instructive. In that action, the court analyzed 21 whether the ALJ erred by not asking the VE more specific questions regarding 22 plaintiff’s ability to perform the cashier occupation suggested by the VE given that 23 plaintiff was determined to be unable to reach overhead with her right arm and the 24 DOT describes the cashier occupation as requiring frequent reaching. Gutierrez, 25 844 F.3d 804, 807 (9th Cir. 2016). The Ninth Circuit noted that “[r]esolving this 26 argument requires us to determine whether overhead reaching is such a common and 27 obvious part of cashiering that the ALJ should have recognized a conflict and 28 1 2 cashier.” Id. It further explained that “[f]or a difference between an expert’s 3 testimony and the [DOT’s] listings to be fairly characterized as a conflict . . . the 4 testimony must be at odds with the [DOT’s] listing of job requirements that are 5 essential, integral, or expected.” Id. at 808. The Ninth Circuit determined that the 6 error in that case was harmless because “[w]hile ‘reaching’ connotes the ability to 7 extend one’s hands and arms ‘in any direction,’ not every job that involves reaching 8 requires the ability to reach overhead.” Id. It illustrated this proposition by stating 9 that “anyone who’s made a trip to the corner grocery store knows that while a clerk 10 stocking shelves has to reach overhead frequently, the typical cashier never has to” 11 and an ALJ’s obligation to ask follow up questions of the VE when there is an 12 apparent conflict with the DOT, “doesn’t extend to unlikely situations or 13 circumstances,” e.g., “where the frequency or necessity of a task is unlikely and 14 unforeseeable.” Id. 15 In this case, Plaintiff argues that the ALJ erred because if Dr. Yashruti’s 16 overhead lifting limitation had been included in the RFC, it is “possible” that the 17 sorter of agricultural produce occupation would have been eliminated. However, 18 nothing in the DOT description for the essential job duties of this occupation 19 logically or reasonably contemplates that an individual performing that occupation 20 would have to lift items of any weight over shoulder height. 21 Accordingly, the Court determines that the ALJ’s error, if any, in failing to 22 include Dr. Yashruti’s overhead lifting limitation, was harmless. 23 24 B. PLAINTIFF’S RFC OVERHEAD REACHING LIMITATION 25 The ALJ determined that Plaintiff was limited to occasional reaching 26 overhead to the left and right. (AR 26.) Plaintiff contends that, given this 27 limitation, the ALJ failed to follow the requirements set forth in SSR 00-4p to 28 1 2 in the DOT relating to the occupation for sorting agricultural produce. (Pl.’s Br. 8.) 3 She argues that although the ALJ initially cautioned the VE that he should explain 4 any inconsistencies between his testimony and the information contained in the 5 DOT, the ALJ “blatantly failed to discharge his ‘affirmative responsibility’ to obtain 6 these clarifications during the course of the hearing.” (Pl.’s Br. 8 (citing AR 52- 7 55).) She further argues that there are “apparent unresolved conflicts between the 8 VE’s testimony and the DOT,” particularly because the hypothetical question posed 9 to the VE “included restrictions on overhead reaching, which is not covered by the 10 DOT” description of the occupation, and the VE did not explain the basis for his 11 testimony regarding the RFC limitation to occasional overhead reaching to the left 12 and right as it pertains to the sorter of agricultural produce occupation. (Pl.’s Br. 8.) 13 In determining whether appropriate jobs exist for a claimant, or whether the 14 claimant can perform her past relevant work, the VE generally will refer to the 15 DOT. See Light v. Social Sec. Admin., 119 F.3d 789, 793 (9th Cir. 1997). SSR 00- 16 4p explicitly requires the ALJ determine whether the VE’s testimony deviates from 17 the DOT, and whether there is a reasonable explanation for any deviation. See SSR 18 00-4p (stating that an ALJ must inquire whether a VE’s testimony regarding “the 19 requirements of a job or occupation” conflicts with the DOT). The procedural 20 requirements of SSR 00-4p ensure the record is clear as to why an ALJ relied on a 21 VE’s testimony, particularly in cases where the expert’s testimony conflicts with the 22 DOT. 23 An “ALJ’s failure to resolve an apparent inconsistency may leave us with a 24 gap in the record that precludes us from determining whether the ALJ’s decision is 25 supported by substantial evidence.” Zavalin v. Colvin, 778 F.3d 842, 846 (9th Cir. 26 2015). An ALJ’s failure to resolve an apparent conflict cannot be deemed harmless 27 if the VE’s testimony left “unresolved potential inconsistenc[ies] in the evidence.” 28 1 || Massachi v. Astrue, 486 F.3d 1149, 1153, 1154 n.19 (9th Cir. 2007). 2 That is not the case here. For the same reasons discussed with respect to 3 || Plaintiffs first issue, the Court finds that even if the ALJ erred in failing to confirm 4 || whether the VE’s testimony was consistent with the DOT with respect to □□□□□□□□□□□ 5 || RFC limitation to occasional overhead reaching to the left and the right, the error 6 || was harmless. As discussed above, a common sense understanding of the essential, 7 || integral, or expected tasks required to be performed by a sorter of agricultural 8 || produce, based on the description of that occupation in the DOT, would lead to a 9 || conclusion that no overhead reaching would be required, much less more than 10 || occasional reaching overhead to the left or right. Neither did Plaintiff identify any 11 || such overhead reaching tasks. Under these circumstances, the ALJ did not have any 12 || responsibility to question the VE further regarding the purported conflict between 13 || Plaintiffs limitation to only occasional overhead reaching to the right and left and 14 || the requirements for performing the occupation of sorter of agricultural produce 15 || because there was no apparent conflict. And, even if there was error, that error was 16 || harmless. 17 18 Vv. CONCLUSION 19 For all the foregoing reasons, [IT IS ORDERED that the decision of the 20 || Commissioner finding Plaintiff not disabled is AFFIRMED. 21 22 IT IS SO ORDERED. 23 24 || DATED: April 21, 2023 Uo 25 □ 6 GAIL J. STANDISH UNITED STATES MAGISTRATE JUDGE 27 28 11