Guadalupe Javalera v. Andrew Saul

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 10, 2020
• Docket: 18-35754
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 10 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GUADALUPE JAVALERA, No. 18-35754

Plaintiff-Appellant, D.C. No. 2:17-cv-01495-BAT

v. MEMORANDUM* ANDREW M. SAUL, Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Brian Tsuchida, Magistrate Judge, Presiding

Submitted March 6, 2020**

Before: FARRIS, TROTT, and SILVERMAN, Circuit Judges.

Guadalupe Javalera appeals the district court’s decision affirming the

Commissioner of Social Security’s denial of her application for disability

insurance benefits under Title II of the Social Security Act. This court reviews the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). district court’s order sustaining the denial of benefits de novo. Brown-Hunter v.

Colvin, 806 F.3d 487, 492 (9th Cir. 2015). This court may set aside the ALJ’s

denial of benefits only if it is not supported by substantial evidence or is based on

legal error. Id.

The Administrative Law Judge (“ALJ”) properly considered the opinion of

treating physician Dr. Mark Wagner, and did not err in not specifically discussing

an August 2015 examination note. In the examination note, Dr. Wagner reviewed

four proposed jobs in connection with Javalera’s state workers compensation

claim, and disapproved the night janitor and general salesman positions without

comment, disapproved the cashier position because Javalera would “be in the same

position for prolonged periods of time,” and approved the sales attendant-light duty

position with a recommendation for vocational retraining. First, none of the jobs

that Dr. Wagner disapproved – night janitor, general salesman, and cashier – were

ever performed by Javalera. Second, Dr. Wagner’s impressions of a cashier

position does not reflect his medical opinion about the nature and severity of

Javalera’s impairments. Dr. Wagner did not assess any functional limitations, such

as how long Javalera could work in one position. In addition, there is no indication

in the record that the cashier job was similar to Javalera’s past relevant work as a

sales representative and travel agent. Turner v. Comm’r of Soc. Sec., 613 F.3d

1217, 1223 (9th Cir. 2010) (holding that the ALJ did not err by not providing

2 18-35754 reasons to reject a physician’s report when the report contained no functional

limitations). Finally, Dr. Wagner’s conclusion that Javalera did not appear capable

of performing the cashier job was a vocational conclusion that was outside his area

of expertise. McLeod v. Astrue, 640 F.3d 881, 884-85 (9th Cir. 2010) (noting that

a treating physician ordinarily does not have the expertise of a vocational expert).

The ALJ did not err in her overall consideration of Dr. Wagner’s opinion.

The ALJ considered Dr. Wagner’s treatment notes and discussed a number of his

many examination findings in the ALJ decision. Accordingly, the ALJ met her

obligation to consider all of the relevant medical opinion evidence in the record.

Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003).

Javalera’s contention that the ALJ was required to further develop the record

is without merit. There was no apparent ambiguity in the medical evidence, the

record was adequate to allow for proper evaluation of Dr. Wagner’s opinion, and

the ALJ was under no obligation to further develop the record. Mayes v.

Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001).

The ALJ provided specific, clear and convincing reasons for discounting

Javalera’s testimony. First, the ALJ reasonably discounted Javalera’s testimony of

debilitating pain as inconsistent with activities of her daily living where Javalera

was increasing her exercise after the onset of disability date and traveling

independently. Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (claimant’s

3 18-35754 daily activities were inconsistent with claimed disability); Tommasetti v. Astrue,

533 F.3d 1035, 1040 (9th Cir. 2008) (the ALJ properly inferred from claimant’s

ability to travel that claimant was not as limited as purported). Second, the ALJ

reasonably concluded that the medical record did not support Javalera’s claimed

limitations. The ALJ pointed to record evidence that showed mostly unremarkable

findings such as improved range of motion, normal shoulder strength, and normal

sensory and motor functioning that did not substantiate Javalera’s claims of

disabling neck and shoulder problems. Accordingly, the ALJ reasonably found

that the objective medical evidence failed to support Javalera’s allegations of

disability based on her alleged impairments. Burch v. Barnhart, 400 F.3d 676, 681

(9th Cir. 2005).

AFFIRMED.

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