Maria Ruiz v. Nancy Berryhill

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 9, 2018
• Docket: 16-56163
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAY 09 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIA DELOSANGELES RUIZ, No. 16-56163

Plaintiff-Appellant, D.C. No. 5:15-cv-01378-JVS-JEM

v. MEMORANDUM* NANCY A. BERRYHILL, Acting Commissioner Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding

Argued and Submitted March 7, 2018 Pasadena, California

Before: GRABER, W. FLETCHER, and OWENS, Circuit Judges.

Plaintiff-Appellant Maria Delosangeles Ruiz (“Appellant”) appeals from the

district court’s decision affirming the Commissioner of Social Security’s

(“Commissioner”) denial of her application for disability insurance benefits under

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Title II of the Social Security Act, 42 U.S.C. § 401 et seq. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

We review a district court’s order upholding the Commissioner’s denial of

benefits de novo. See Carillo-Yeras v. Astrue, 671 F.3d 731, 734 (9th Cir. 2011).

We only affirm the Commissioner’s decision if it is supported by substantial

evidence and not based on legal error. Id. Factual determinations are supported by

substantial evidence when there is relevant evidence that a reasonable person could

find adequate to support a conclusion. Howard ex rel. Wolff v. Barnhart, 341 F.3d

1006, 1011 (9th Cir. 2003). An Administrative Law Judge’s (“ALJ”) credibility

findings must be supported by specific, cogent reasons. See Greger v. Barnhart,

464 F.3d 968, 972 (9th Cir. 2006). On review, we uphold credibility

determinations unless they are “inherently incredible or patently unreasonable.”

Relaw Broad. Co. v. NLRB, 53 F.3d 1002, 1006 (9th Cir. 1995) (citation and

internal quotation marks omitted).

The ALJ properly evaluated Appellant’s ability to perform her past relevant

work at step four of the five-step sequential process for disability determinations.

See 20 C.F.R. § 404.1520. At step four, the ALJ determines whether a claimant’s

impairment prevents her from doing past relevant work. Pinto v. Massanari, 249

F.3d 840, 844-45 (9th Cir. 2001). Here, the ALJ determined that Appellant could

2 perform her past relevant work as a sewing machine operator. Appellant argues

that the ALJ’s conclusion is legally erroneous because he failed to resolve the

conflict between the vocational expert’s (“VE”) testimony that Appellant could

perform her past work as a sewing machine operator, as generally performed, and

the requirements of that vocation in the Dictionary of Occupational Titles

(“DOT”). No legal error is apparent. Though “an ALJ is required to investigate

and resolve any apparent conflict between the VE’s testimony and the DOT,”

Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2018), a conflict is apparent only

if the challenged vocational requirement is “essential, integral, or expected” for the

job, Gutierrez v. Colvin, 844 F.3d 804, 808 (9th Cir. 2016). The DOT’s 02

Language Development Level for a sewing machine operator lists requirements

including writing cursive, reading 190-215 words per minute, and having a passive

vocabulary of 5,000-6,000 words. DOT § 787.682-030, App. C. Though the

record suggests Appellant does not have those English language capabilities, it is

not obvious that the language requirements are essential, integral, or expected for

the work of a sewing machine operator.

The ALJ properly evaluated Appellant’s residual functional capacity

(“RFC”) for a modified range of light work. Appellant contends that her RFC is

not supported by substantial evidence because the ALJ improperly rejected the

3 opinions of her treating physician Dr. Thomas Grogan, improperly rejected her

subjective symptom testimony, and relied on a hypothetical for the VE that erred in

rejecting both as well.

The ALJ provided specific, legitimate reasons, supported by substantial

evidence, for rejecting Dr. Grogan’s opinion that Appellant was permanently

disabled and unable to work. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir.

1996). Dr. Grogan’s disability determinations were not consistently supported by

independent examination findings and did not consider Appellant’s past relevant

work as a sewing machine operator. In one instance, Dr. Grogan determined that

Appellant’s physical limitations left her permanently disabled only from

conducting her past work as a driver and distributor. In another instance, Dr.

Grogan used a check-off form to indicate much more severe limitations that

mirrored Appellant’s subjective complaints and that were not supported by

independent examination findings. See Molina v. Astrue, 674 F.3d 1104, 1111 (9th

Cir. 2012) (explaining that an ALJ may “permissibly reject[ ] . . . check-off reports

that [do] not contain any explanation of the bases of their conclusions”) (alterations

in original) (internal quotation marks omitted). The Commissioner permissibly

resolved this conflict by placing more weight on Appellant’s orthopedic

consultative examination conducted by Dr. Vincent Bernabe. See Andrews v.

4 Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (explaining that where a treating

physician’s opinion is contradicted by an examining professional’s opinion, the

Commissioner may resolve the conflict by relying on the examining physician’s

opinion if the examining physician’s opinion is supported by different,

independent clinical findings). Dr. Bernabe found that Appellant’s physical

limitations would limit her to performing light work.

The ALJ provided specific, clear and convincing reasons, supported by

substantial evidence, for discounting Appellant’s self-reported subjective

symptoms. Tommasetti v. Astrue, 533 F.3d 1035, 1039-40 (9th Cir. 2008).

Appellant’s subjective symptoms were internally inconsistent and unsupported by

the objective medical evidence. Appellant first reported she had no problems with

attention and could follow instructions well, then just a few months later claimed

that she could pay attention only 20-30 minutes and could not follow instructions

well. There was no reported change in her medical condition to support this

alleged deterioration. See Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir.

1997). Appellant also never reported the degree of pain or severity of limitations

to her treatment providers that she subjectively alleged, and some allegations were

undermined by her objective medical record. See Flaten v. Sec’y of Health &

Human Servs., 44 F.3d 1453, 1464 (9th Cir. 1995).

5 The ALJ thus posed an appropriate hypothetical to the VE that took into

consideration only limitations supported by substantial evidence. Osenbrock v.

Apfel, 240 F.3d 1157, 1163 (9th Cir. 2001).

AFFIRMED.