Hinkley v. Berryhill

• Court: District Court, S.D. California
• Decided: June 23, 2023
• Docket: 3:18-cv-02512
• Status: Unknown

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 MARK HINKLEY, Case No.: 18CV2512 JAH

10 Plaintiff, ORDER DENYING PLAINTIFF’S 11 v. MOTION FOR SUMMARY JUDGMENT AND GRANTING 12 KILOLO KIJAKAZI, Acting DEFENDANT’S CROSS-MOTION Commissioner of Social Security,1 13 FOR SUMMARY JUDGMENT Defendant. [Doc. Nos. 20, 21] 14 15 16 17 INTRODUCTION 18 Plaintiff Mark Hinkley seeks review of the Social Security Commissioner’s final 19 decision denying benefits. After a thorough review of the parties’ submissions and for the 20 reasons set forth below, the Court DENIES Plaintiff’s motion for summary judgment and 21 GRANTS Defendant’s cross-motion for summary judgment. 22 BACKGROUND 23 Plaintiff was born on February 19, 1956 and was 61 years of age at the time of the 24 hearing before the Administrative Law Judge (“ALJ”). AR2 at 38. He alleged his disability 25 26 27 1 Dr. Kilolo Kijakazi is named in place of Nancy A. Berryhill as Commissioner of Social Security Administration, pursuant to Fed. R. Civ. P. 25(d). 28 1 began on April 19, 2012. Id. at 18, 68. He filed an application for benefits and 2 supplemental security income on September 9, 2014. Id. at 188–212. The Commissioner 3 denied the claims on February 19, 2015 and denied the claims again upon reconsideration. 4 Id. at 117–21, 126–31. Plaintiff requested a hearing and testified at the hearing on July 5, 5 2017. Id. at 34, 133. The ALJ issued an unfavorable decision on October 30, 2017. Id. at 6 15, 18–28. Plaintiff filed a request for review of the ALJ’s decision and the Appeals 7 Council denied the request on August 28, 2018. Id. at 1. 8 Plaintiff, appearing through counsel, filed a complaint seeking review of the 9 Commissioner’s final decision denying benefits on November 1, 2018. See Doc. No. 1. 10 Defendant filed an answer and the administrative record on March 11, 2019. See Doc. 11 Nos. 12, 13. 12 Thereafter, Plaintiff filed the pending motion for summary judgment, Doc. No. 20 13 (“Mot.”), and Defendant filed an opposition and cross-motion for summary judgment. Doc. 14 No. 21 (“Cross-Mot.”). Plaintiff filed a reply. Doc. No. 22 (“Reply”). 15 DISCUSSION 16 I. Legal Standards 17 A. Qualifying for Disability Benefits 18 To qualify for disability benefits under the Act, an applicant must show that: (1) he 19 suffers from a medically determinable impairment that can be expected to result in death 20 or that has lasted or can be expected to last for a continuous period of not less than twelve 21 months; and (2) the impairment renders the applicant incapable of performing the work 22 that he previously performed or any other substantially gainful employment that exists in 23 the national economy. See 42 U.S.C. § 423(d)(1)(A), 2(A). An applicant must meet both 24 requirements to be “disabled.” Id. 25 The Commissioner of the Social Security Administration has established a five-step 26 sequential evaluation process for determining whether a person is disabled. 20 C.F.R. 27 §§ 404.1520, 416.920. Step one determines whether the claimant is engaged in “substantial 28 gainful activity.” If he is, disability benefits are denied. 20 C.F.R. §§ 404.1520(b), 1 416.920(b). If he is not, the decision maker proceeds to step two, which determines 2 whether the claimant has a medically severe impairment or combination of impairments. 3 If the claimant does not have a severe impairment or combination of impairments, the 4 disability claim is denied. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the impairment is 5 severe, the evaluation proceeds to the third step, which determines whether the impairment 6 is equivalent to one of a number of listed impairments that the Commissioner 7 acknowledges are so severe as to preclude substantial gainful activity. 20 C.F.R. 8 §§ 404.1520(d); 20 C.F.R. Part 404 Appendix 1 to Subpart P. If the impairment meets or 9 equals one of the listed impairments, the claimant is conclusively presumed to be disabled. 10 If a condition “falls short of the [listing] criterion,” a multiple factor analysis is appropriate. 11 Celaya v. Halter, 332 F.3d 1177, 1181 (9th Cir. 2003). Of such analysis, “the 12 [Commissioner] shall consider the combined effect of all the individual’s impairments 13 without regard to whether any such impairment, if considered separately, would be of such 14 severity.” Id. at 1182 (quoting 42 U.S.C. § 423(d)(2)(B)). If the impairment is not one 15 that is conclusively presumed to be disabling, the evaluation proceeds to the fourth step, 16 which determines whether the impairment prevents the claimant from performing work he 17 has performed in the past. If the claimant cannot perform his previous work, the fifth and 18 final step of the process determines whether he is able to perform other work in the national 19 economy considering his age, education, and work experience. The claimant is entitled to 20 disability benefits only if he is not able to perform other work. 20 C.F.R. §§ 21 404.1520(g)(1), 416.920(g)(1). 22 B. Judicial Review of an ALJ’s Decision 23 Section 405(g) of the Act allows unsuccessful applicants to seek judicial review of 24 a final agency decision of the Commissioner. 42 U.S.C. § 405(g). The scope of judicial 25 review is limited. The Commissioner’s denial of benefits “will be disturbed only if it is 26 not supported by substantial evidence or is based on legal error.” Brawner v. Secretary of 27 Health and Human Servs., 839 F.2d 432, 433 (9th Cir. 1988) (citing Green v. Heckler, 803 28 F.2d 528, 529 (9th Cir. 1986)). 1 Substantial evidence means “more than a mere scintilla but less than a 2 preponderance.” Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) (citation omitted). 3 “[I]t is such relevant evidence as a reasonable mind might accept as adequate to support a 4 conclusion.” Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). The 5 Court must consider the record as a whole, weighing both the evidence that supports and 6 detracts from the Commissioner’s conclusions. Desrosiers v. Secretary of Health & 7 Human Servs., 846 F.2d 573, 576 (9th Cir. 1988) (citing Jones v. Heckler, 760 F.2d 993, 8 995 (9th Cir. 1985)). If the evidence supports more than one rational interpretation, the 9 Court must uphold the ALJ’s decision. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984) 10 (citing Allen v. Secretary of Health and Human Servs., 726 F.2d 1470, 1473 (9th Cir. 11 1984)). When the evidence is inconclusive, “questions of credibility and resolution of 12 conflicts in the testimony are functions solely of the [Commissioner].” Sample v. 13 Schweiker, 694 F.2d 639, 642 (9th Cir. 1982) (citation omitted). 14 However, even if the reviewing court finds that substantial evidence supports the 15 ALJ’s conclusions, the Court must set aside the decision if the ALJ failed to apply the 16 proper legal standards in weighing the evidence and reaching a decision. See Benitez v. 17 Califano, 573 F.2d 653, 655 (9th Cir. 1978) (citation omitted). Section 405(g) permits a 18 court to enter a judgment affirming, modifying, or reversing the Commissioner’s decision. 19 42 U.S.C. § 405(g). The reviewing court may also remand the matter to the Social Security 20 Commissioner for further proceedings. Id. “If additional proceedings can remedy defects 21 in the original administrative proceeding, a social security case should be remanded.” 22 Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990) (quoting Lewin v. Schweiker, 654 23 F.2d 631, 635 (9th Cir. 1981)). 24 II. The ALJ’s Decision 25 In the present case, the ALJ found that Plaintiff has not engaged in substantial gainful 26 activity since April 19, 2012 and has severe impairments, including diabetes mellitus, 27 arteriosclerotic coronary artery disease, status post myocardial infarction, kidney disease, 28 and status post below knee amputation of the left lower extremity secondary to diabetic 1 foot infection. AR at 20. The ALJ determined that Plaintiff does not have an impairment 2 or combination of impairments that meet or are medically equal in severity to one of the 3 listed impairments in 20 CFR Part 404 Subpart P, Appendix 1. Id. at 24. 4 The ALJ found Plaintiff has a residual functional capacity 5 to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except for no push, pull or operation of foot controls with the left lower extremity, 6 occasional balancing and stooping; occasional climbing ramps and stairs; no 7 kneeling, crouching or crawling; no climbing ladders, scaffolds or ropes; avoid concentrated exposure to extreme cold and vibrations; and even moderate exposure 8 to hazards (e.g. moving machinery and unprotected heights). 9 Id. Additionally, the ALJ found Plaintiff’s statements concerning the intensity, 10 persistence, and limiting effects of his symptoms not entirely credible because “he has been 11 able to care for his 85 year old mother who is totally dependent on him because of 12 Alzheimer’s disease,” Plaintiff “exercises daily with activities that include stretching and 13 walking,” the objective evidence did not support the degree alleged, Plaintiff “has a normal 14 gait and does not require any assistive devices to ambulate,” the objective medical evidence 15 showed Plaintiff’s medications were relatively effective in controlling his symptoms, and 16 there was no evidence of weight loss, sleep deprivation, or cognitive deficits due to pain or 17 depression. Id. at 24–25. 18 The ALJ also found that Plaintiff does not have any severe mental impairment. Id. 19 at 22–26. In reaching this conclusion, the ALJ gave little weight to the opinion of 20 Plaintiff’s attending psychologist, Chad Hybarger, and significant weight to the opinions 21 of the State agency medical consultant assessments dated February 19, 2015 and July 9, 22 2015. Id. at 26. According to the ALJ, the State agency medical consultants’ conclusion 23 that Plaintiff does not suffer from a severe mental impairment was supported by Dr. 24 Hybarger’s progress notes, the progress notes of other treating sources, Plaintiff’s sporadic 25 mental health treatment, and Plaintiff’s own denials of depression and anxiety. Id. at 26. 26 The ALJ determined that Plaintiff is able to perform his past relevant work as an 27 attorney, superintendent of schools, and principal, at least as typically done in the national 28 1 economy. Id. 27–28. Ultimately, the ALJ concluded Plaintiff has not been under a 2 disability as defined by the Act from April 19, 2012. Id. at 28. 3 III. Analysis 4 Plaintiff contends that the ALJ erred in primarily three ways. First, he argues that 5 the ALJ erred in finding that Plaintiff lacks a severe mental impairment. Specifically, 6 Plaintiff takes issue with the ALJ’s decision to give little weight to the opinion of Dr. 7 Hybarger. Second, he claims that the ALJ erred by concluding that Plaintiff does not 8 satisfy Listing 1.05 despite his below knee amputation. Third, he argues that the ALJ was 9 wrong to conclude that he has the residual functional capacity to perform his past relevant 10 work. The Court will consider each argument in turn. 11 A. Plaintiff’s Mental Impairment 12 Plaintiff argues that substantial evidence exists in the record showing he is severely 13 impaired by major depressive disorder and anxiety. Plaintiff relies on Dr. Hybarger’s 14 mental functional assessment dated June 26, 2017 which opined that due to his depression, 15 Plaintiff would be absent from work more than three times per month and would be off 16 task more than 20 percent of the time. AR at 26. Dr. Hybarger also found that Plaintiff 17 has “marked” limits in the ability to understand, remember and carry out information as 18 well as concentrate, persist and maintain pace. Id. The ALJ, however, gave Dr. Hybarger’s 19 opinion little weight. He explained that Dr. Hybarger’s opinion was inconsistent with his 20 earlier progress notes and that of other treating sources. The ALJ also considered 21 Plaintiff’s sporadic mental health treatment and his own denials of depression and anxiety 22 in concluding that Plaintiff does not experience severe mental impairment. Defendant 23 maintains that the ALJ properly weighed the evidence and reached a conclusion supported 24 by substantial evidence in the record. 25 “[A]s a general rule, more weight should be given to the opinion of a treating source 26 than to the opinion of doctors who do not treat the claimant.” Benton v. Barnhart, 331 F.3d 27 1030, 1036 (9th Cir. 2003) (quoting Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). 28 Where the treating doctor’s opinion is not contradicted by another doctor, it may be rejected 1 only for “clear and convincing” reasons supported by substantial evidence in the record. 2 Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). Even if the treating doctor’s opinion 3 is contradicted by another doctor, the ALJ may not reject this opinion without providing 4 “specific and legitimate reasons” supported by substantial evidence in the record. Id. The 5 ALJ can “meet this burden by setting out a detailed and thorough summary of the facts and 6 conflicting clinical evidence, stating his interpretation thereof, and making findings.” 7 Magallanes v. Sec’y of Health and Hum. Servs., 881 F.2d 747, 751 (9th Cir. 1989) (citation 8 omitted). “Where the opinion of the claimant’s treating physician is contradicted, and the 9 opinion of a non-treating source is based on independent clinical findings that differ from 10 those of the treating physician, the opinion of the non-treating source may itself be 11 substantial evidence[.]” Andrews, 53 F.3d at 1041. In addition, the ALJ need not accept 12 the opinion of any physician, including a treating physician, if that opinion is brief, 13 conclusory, and inadequately supported by clinical findings. Matney v. Sullivan, 981 F.2d 14 1016, 1019 (9th Cir. 1992). 15 Here, the ALJ properly discounted the opinion of Dr. Hybarger by providing clear 16 and specific reasons which are supported by record evidence. The ALJ observed that the 17 State medical assessments concluded that Plaintiff does not have a severe mental 18 impairment. See AR at 73, 98. The ALJ, however, did not rely exclusively on these 19 opinions, but instead considered the record as a whole. For example, the ALJ viewed Dr. 20 Hybarger’s June 2017 assessment of Plaintiff in the context of Dr. Hybarger’s entire 21 treatment history of Plaintiff. Dr. Hybarger began treating Plaintiff in 2013 and diagnosed 22 him with dysthymic disorder. Id. at 22. He saw Plaintiff approximately six times in a span 23 of four years. Id.; Cross-Mot. at 5. Four of those visits occurred in 2013, within weeks of 24 each other. AR at 22. Dr. Hybarger saw Plaintiff once in February 2015 and once in June 25 2017. Id. Although some of Dr. Hybarger’s progress notes showed Plaintiff experienced 26 anhedonic depression, feelings of worthlessness, and social withdrawal, the ALJ pointed 27 out that later notes showed “anhedonia was extinguished,” “more energy,” and an 28 “upswing.” AR at 22. 1 In addition, a different psychologist, Dr. Heidi Brunetto, examined Plaintiff’s mental 2 state in June 2017. Id. at 26. Dr. Brunetto assessed Plaintiff with depressive disorder. Id. 3 at 700. The ALJ characterized her examination of his mental health as “unremarkable.” 4 Id. at 26. Dr. Brunetto’s mental health exam found Plaintiff “well groomed,” 5 “cooperative,” with “regular” speech, “euthymic” affect, “coherent” thought processes, no 6 memory problems, “alert” orientation, “good” insight, and “good” judgment. Id. at 699– 7 700. 8 The ALJ also relied on Plaintiff’s own statements to his treating sources that he was 9 not depressed or anxious. See id. at 22 (describing Plaintiff’s representations in April, 10 September, and November 2016). Furthermore, the ALJ considered the sporadic nature of 11 Plaintiff’s “limited mental health treatment,” including “no records of mental health 12 treatment after February 2015 and until June 2017,” to weigh against a finding of severe 13 mental impairment. Id.; see Malloy v. Colvin, 664 F. App’x 638, 641 (9th Cir. 2016) 14 (affirming ALJ finding of no severe mental impairment where “record showed ‘minimal 15 and inconsistent treatment’”). Because the ALJ’s articulated reasons find support in the 16 record, the Court will not disturb its conclusion that Plaintiff is not severely mentally 17 impaired. 18 Plaintiff’s arguments to the contrary are unavailing. First, Plaintiff argues that a 19 patient’s positive progress in treatment is insufficient on its own to conclude that he is not 20 severely impaired. Reply at 2 (citing Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 21 2001)). Holohan stands for the proposition that in considering the severity of an applicant’s 22 mental health, an ALJ cannot cherry-pick a few instances of improvement but must instead 23 consider “the overall diagnostic picture.” Id. In this case, the ALJ did consider the entire 24 picture of Plaintiff’s mental health. In giving little weight to Dr. Hybarger’s opinion, the 25 ALJ took into account not just Dr. Hybarger’s previous notes showing Plaintiff’s mental 26 health progress, but also Dr. Brunetto’s contemporaneous mental status exam, Plaintiff’s 27 own denials of depression and anxiety, and his sporadic mental health treatment. AR at 28 24–26. 1 Second, Plaintiff argues that Dr. Brunetto’s opinion should be given little weight 2 because the June 1, 2017 meeting was only “a brief visit to establish care.” Mot. at 24–25; 3 cf. id. at 8 (admitting that purpose of this visit was “treatment for depression”). He claims 4 that the ALJ should have given Dr. Hybarger’s opinion more weight because he treated 5 Plaintiff “over the course of several years.” Id. Plaintiff’s argument would have some 6 force if these two conflicting opinions consisted of the only relevant evidence in the record. 7 But that is not the case here. The ALJ properly considered Dr. Brunetto’s opinion along 8 with other evidence in the record to discount Dr. Hybarger’s opinion. See Reddick, 157 9 F.3d at 725 (noting that when “the treating doctor’s opinion is contradicted by another 10 doctor,” the ALJ may reject the former’s opinion by providing “specific and legitimate 11 reasons” supported by the record). 12 Third, Plaintiff argues that his denials of depression and anxiety are insignificant 13 because he made them in meetings with treating sources who specialized in treating his 14 physical, not mental, impairments. The Court is unpersuaded. It may make sense to weigh 15 doctors’ opinions differently in a situation where expertise on a given subject matter is 16 relevant. But Plaintiff fails to cite any caselaw supporting the notion that self-reported 17 statements should be given more or less weight depending on what kind of doctor they are 18 directed toward. Nor did Plaintiff provide the ALJ or this Court any reason to believe that 19 he was misrepresenting his mental health at the time he made those remarks. The ALJ 20 properly considered Plaintiff’s denials and weighed them in the context of the entire record. 21 In short, the ALJ provided a detailed and thorough summary of the facts and 22 evidence and an interpretation of the evidence to support the findings. Plaintiff disagrees 23 with the ALJ’s interpretation and findings and points to evidence he believes supports Dr. 24 Hybarger’s opinion. But the proper inquiry is not whether some evidence in the record 25 supports Plaintiff’s claim of severe mental impairment. Where, as here, the evidence is 26 open to more than one rational interpretation and the ALJ’s findings are supported by 27 substantial evidence, the ALJ’s decision must be upheld. See Burch v. Barnhart, 400 F.3d 28 676, 679 (9th Cir. 2005). 1 B. Plaintiff’s Qualification for Listing 1.05 2 Plaintiff argues that the ALJ erred by finding that he did not meet Listing 1.05. 3 Listing 1.05(B) requires amputation of “one or both lower extremities at or above the tarsal 4 region, with stump complications resulting in medical inability to use a prosthetic device 5 to ambulate effectively . . . which have lasted or are expected to last for at least 12 months.” 6 20 C.F.R. Pt. 404, Subpt. P, App. 1.3 The regulation explains that “[t]o ambulate 7 effectively, individuals must be capable of sustaining a reasonable walking pace over a 8 sufficient distance to be able to carry out activities of daily living.” 20 C.F.R. Pt. 404, 9 Subpt. P, App. 1, 1.00(B)(2)(b)(2). At the hearing, Plaintiff testified that he lacked strength 10 and vitality and that while wearing his prothesis, he experienced poor fit, sores, and 11 wounds. AR at 42–43. The ALJ, however, concluded that Plaintiff did not satisfy Listing 12 1.05. Id. at 24. He explained that although Plaintiff initially had trouble with his prosthesis 13 after his below knee amputation, he has done well managing that area of his body and can 14 ambulate with a prosthesis. Id. at 27. The ALJ found that Plaintiff’s statements about the 15 intensity, persistence, and limiting effects of his symptoms were not entirely consistent 16 with the objective evidence. Id. at 24. Defendant claims that the ALJ discussed the 17 pertinent evidence and reached a decision supported by substantial evidence in the record. 18 The ALJ’s credibility finding must be properly supported by the record and 19 “sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily 20 discredit claimant’s testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) 21 22 23 3 The Listing of Impairments has been updated over the last few years. See, e.g., Revised Medical Criteria for Evaluating Musculoskeletal Disorders, 85 Fed. Reg. 78164-01, 2020 WL 7056412 (Dec. 3, 24 2020); Christopher I. v. Kijakazi, No. 2:21-CV-00723-CMR, 2023 WL 2586212, at *2 (D. Utah Mar. 25 21, 2023) (describing Listing 1.05B’s update effective 2021). Those updates do not affect the analysis here because on judicial review, “the regulations in place . . . when the ALJ’s decision became final, 26 govern.” Wood v. Berryhill, 692 F. App’x 816, 817 n.1 (9th Cir. 2017); see also 85 Fed. Reg. 78164-01 n. 2 (“We expect that Federal courts will review our final decisions using the rules that were in effect at 27 the time we issued the decisions.”). Here, the ALJ’s decision became final in 2018. AR at 1. Thus, the Court will assess Plaintiff’s argument concerning Listing 1.05 by applying the same standard that the 28 1 (citing Bunnell v. Sullivan, 947 F.2d 341, 345–46 (9th Cir. 1991) (en banc)). An ALJ may 2 consider a claimant’s “reputation for truthfulness, inconsistencies either in his testimony 3 or between his testimony and his conduct, his daily activities, his work record, and 4 testimony from physicians and third parties concerning the nature, severity, and effect of 5 the symptoms of which he complains.” Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th 6 Cir. 1997). “While an ALJ may find testimony not credible in part or in whole, he or she 7 may not disregard it solely because it is not substantiated affirmatively by objective 8 medical evidence.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). Unless 9 an ALJ makes a finding of malingering based on confirming evidence, the ALJ may only 10 find an applicant not credible by making specific findings as to credibility and stating clear 11 and convincing reasons for each. Id. 12 Here, the ALJ’s finding that Plaintiff did not satisfy Listing 1.05 is supported by 13 substantial evidence in the record. As Plaintiff acknowledges, “[t]he claimant has the 14 burden of proving that he . . . has an impairment or combination of impairments that meets 15 or equals the Listings.” Reply at 8 (citing Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 16 2005)). The ALJ found that “[i]n contrast to the allegations of the claimant’s disabling 17 pain and weakness, he does not exhibit any significant atrophy, loss of strength, or 18 difficulty moving that are indicative of severe and disabling pain. He has a normal gait 19 and does not require any assistive devices to ambulate.” AR at 25. The ALJ cited 20 extensively to the record to support his conclusion. He cited a March 2016 progress note 21 from a treating source showing that “the claimant has done well managing his below knee 22 amputation and the ability to ambulate with a prosthesis.” Id. at 21. At times, Plaintiff 23 experienced pressure and soreness under the prosthesis, but the record shows that the pain 24 was “mild,” “the wounds were small, did not track to the bone,” and that “padding” and 25 “topical cream helped improve the pressure sore.” Id. A progress note dated June 2017 26 showed “no signs of wounds or other stump problems.” Id. at 27. The ALJ also relied on 27 record evidence indicating that Plaintiff cares for his 85-year old mother who is totally 28 1 dependent on him because of Alzheimer’s disease, and that he exercises daily with 2 activities that include stretching and walking. Id. at 24–25. 3 Plaintiff claims that the ALJ’s conclusion is erroneous because he “took exactly one 4 paragraph to dispose of Listing 1.05.” Reply at 9. But in fact, the ALJ discussed Plaintiff’s 5 below knee amputation and his ability to walk with a prosthesis in detail throughout his 6 findings of fact and conclusions of law. See AR at 20–27. The ALJ provided clear and 7 convincing reasons to not fully credit Plaintiff’s subjective account of his mobility. 8 Therefore, the ALJ’s decision will be upheld. 9 C. Residual Functional Capacity to Perform Past Work 10 Lastly, Plaintiff contends that the ALJ erred in concluding that he had the residual 11 functional capacity to perform his past work as a superintendent of schools, principal, and 12 lawyer. At the hearing, the vocational expert classified Plaintiff’s work as a lawyer as 13 sedentary and his work at his charter school as a composite job composed of: (1) 14 superintendent (sedentary); (2) principal (light); and (3) teacher (light). AR at 28. Plaintiff 15 argues that because the ALJ established that Plaintiff’s residual functional capacity is 16 sedentary, he erred in concluding that Plaintiff could still perform his job as a principal, 17 which requires a light exertion level. Defendant responds that this is inconsequential 18 because the ALJ also found that Plaintiff could perform past relevant work as a lawyer and 19 superintendent. 20 Plaintiff’s argument has merit, but so does Defendant’s counterargument. The 21 ALJ’s conclusion that Plaintiff could perform his job as a principal contradicts his finding 22 that Plaintiff can only engage in sedentary work. Nonetheless, this error is harmless 23 because it is “inconsequential to the ultimate nondisability determination.” Tommasetti v. 24 Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citation omitted). The ALJ properly found 25 that Plaintiff can perform his past relevant work as an attorney and superintendent, at least 26 as typically done in the national economy. AR at 27–28, 57–58. Plaintiff does not dispute 27 that these two positions are both sedentary. See Romo v. Berryhill, 731 F. App’x 574, 579 28 (9th Cir. 2018) (affirming ALJ’s step four analysis despite harmless error in past relevant 1 || work finding because alternative past relevant work was viable). Thus, the ALJ’s 2 conclusion that Plaintiff can perform past relevant work will not be disturbed. 3 CONCLUSION AND ORDER 4 || Based on the foregoing, IT IS HEREBY ORDERED: 5 1. Plaintiff's motion for summary judgment (Doc. No. 20) is DENIED; 6 2. Defendant’s cross-motion for summary judgment (Doc. No. 21) is GRANTED; 7 3. The Clerk of Court shall enter judgment accordingly. 8 ||DATED: June 23, 2023 9 10 J A. HOUSTON 11 Ynited States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28