1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Scott T Matthewson, No. CV-18-03108-PHX-JAT
10 Plaintiff, ORDER
11 v.
12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Pending before the Court is Plaintiff Scott Matthewson’s (“Plaintiff”) appeal from 16 the Social Security Commissioner’s (the “Commissioner”) denial of his application for a 17 period of disability and disability insurance benefits under Title II of the Social Security 18 Act, 42 U.S.C. § 401 et seq. (Doc. 1). This matter has been fully briefed by the parties.1 19 The Court now rules on Plaintiff’s appeal. 20 I. BACKGROUND 21 The parties are familiar with the background information in this case, and it is 22 summarized in the Administrative Law Judge’s (“ALJ”) decision. (See Doc. 8-3 at 19–31). 23 Accordingly, the Court will reference the background only as necessary to the analysis 24 below. 25 II. LEGAL STANDARD 26 The ALJ’s decision to deny disability benefits may be overturned “only when the 27 ALJ’s findings are based on legal error or not supported by substantial evidence in the 28 1 (See Docs. 9, 11). 1 record.” Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003). 2 “‘Substantial evidence’ means more than a mere scintilla, but less than a preponderance, 3 i.e., such relevant evidence as a reasonable mind might accept as adequate to support a 4 conclusion.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citing Young 5 v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 6 “The inquiry here is whether the record, read as a whole, yields such evidence as 7 would allow a reasonable mind to accept the conclusions reached by the ALJ.” Gallant v. 8 Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citations omitted). “Where evidence is 9 susceptible of more than one rational interpretation, it is the ALJ’s conclusion which must 10 be upheld; and in reaching his findings, the ALJ is entitled to draw inferences logically 11 flowing from the evidence.” Gallant, 753 F.2d at 1453 (citations omitted); see Batson v. 12 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). This is because “[t]he 13 trier of fact and not the reviewing court must resolve conflicts in the evidence, and if the 14 evidence can support either outcome, the court may not substitute its judgment for that of 15 the ALJ.” Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992); see Benton, 331 F.3d 16 at 1035 (“If the evidence can support either outcome, the Commissioner’s decision must 17 be upheld.”). 18 The ALJ is responsible for resolving conflicts in medical testimony, determining 19 credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 20 Cir. 1995). Thus, if on the whole record before the Court, substantial evidence supports the 21 ALJ’s decision, the Court must affirm it. See Hammock v. Bowen, 879 F.2d 498, 501 (9th 22 Cir. 1989); see also 42 U.S.C. § 405(g). On the other hand, the Court “may not affirm 23 simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 24 625, 630 (9th Cir. 2007) (internal quotations and citations omitted). 25 Notably, the Court is not charged with reviewing the evidence and making its own 26 judgment as to whether Plaintiff is or is not disabled. Rather, it is a “fundamental rule of 27 administrative law” that a reviewing court, in dealing with a judgement which an 28 administrative agency alone is authorized to make, may only make its decision based upon 1 evidence discussed by the agency. Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S. 194, 2 196 (1947). Thus, the Court’s inquiry is constrained to the reasons asserted by the ALJ and 3 the evidence relied upon in support of those reasons. See Connett v. Barnhart, 340 F.3d 4 871, 874 (9th Cir. 2003). 5 Similarly, when challenging an ALJ’s decision, “issues which are not specifically 6 and distinctly argued and raised in a party’s opening brief are waived.” Arpin v. Santa 7 Clara Valley Trans. Agency, 261 F.3d 912, 919 (9th Cir. 2001) (citing Barnett v. U.S. Air, 8 Inc., 228 F.3d 1105, 1110 n. 1 (9th Cir. 2000) (en banc), vacated and remanded on other 9 grounds, 535 U.S. 391 (2002)); see also Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 10 1219, 1226 n. 7 (9th Cir. 2009) (applying the principle to Social Security appeals). 11 Accordingly, the Court “will not manufacture arguments for an appellant.” Arpin, 261 F.3d 12 at 919 (citation omitted). 13 A. Definition of a Disability 14 A claimant can qualify for Social Security disability benefits only if he can show 15 that, among other things, he is disabled. 42 U.S.C. § 423(a)(1)(E). A disability is defined 16 as an “inability to engage in any substantial gainful activity by reason of any medically 17 determinable physical or mental impairment which can be expected to result in death or 18 which has lasted or can be expected to last for a continuous period of not less than 12 19 months.” Id. § 423(d)(1)(A). A person is disabled only if his “physical or mental 20 impairment or impairments are of such severity that he is not only unable to do his previous 21 work but cannot, considering his age, education, and work experience, engage in any other 22 kind of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 23 B. The Five-Step Evaluation Process 24 The Social Security regulations set forth a five-step sequential process for 25 evaluating disability claims. 20 C.F.R. § 404.1520(a)(4); see also Reddick v. Chater, 157 26 F.3d 715, 721 (9th Cir. 1998). A finding of “not disabled” at any step in the sequential 27 process will end the inquiry. 20 C.F.R. § 404.1520(a)(4). The claimant bears the burden of 28 proof at the first four steps, but the burden shifts to the Commissioner at the final step. 1 Reddick, 157 F.3d at 721. The five steps are as follows: 2 First, the ALJ determines whether the claimant is engaged in “substantial gainful 3 activity.” 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled. Id. 4 At the second step, the ALJ considers whether the claimant has a “severe medically 5 determinable physical or mental impairment.” Id. § 404.1520(a)(4)(ii). If the claimant does 6 not have a severe impairment, then the claimant is not disabled. Id. § 404.1520(c). A 7 “severe impairment” is one that “significantly limits [the claimant’s] physical or mental 8 ability to do basic work activities.” Id. Basic work activities are the “abilities and aptitudes 9 to do most jobs,” such as lifting, carrying, reaching, understanding, carrying out and 10 remembering simple instructions, responding appropriately to co-workers, and dealing 11 with changes in routine.” Id. § 404.1521(b). Additionally, unless the claimant’s impairment 12 is expected to result in death, “it must have lasted or must be expected to last for a 13 continuous period of at least 12 months” for the claimant to be found disabled. 14 Id. § 404.1509. 15 Third, having found a severe impairment, the ALJ then considers the severity of the 16 claimant’s impairment. Id. § 404.1520(a)(4)(iii). This requires the ALJ to determine if the 17 claimant’s impairment “meets or equals” one of the impairments listed in the regulations. 18 Id. If so, then the ALJ will find that the claimant is disabled. Id. If the claimant’s 19 impairment does not meet or equal a listed impairment, then the ALJ will assess the 20 claimant’s “residual functional capacity based on all the relevant medical and other 21 evidence in [the claimant’s] case record.” Id. § 404.1520(e). In assessing the claimant’s 22 “residual functional capacity” (“RFC”), the ALJ will consider the claimant’s 23 “impairment(s), and any related symptoms, such as pain, [that] may cause physical and 24 mental limitations that affect what [the claimant] can do in a work setting.” 25 Id. § 404.1545(a)(1). A claimant’s RFC is the most the claimant can still do despite the 26 effects of all the claimant’s medically determinable impairments, including those that are 27 not severe. Id. § 404.1545(a)(1–2). 28 At step four, the ALJ determines whether, despite his impairments, the claimant can 1 still perform “past relevant work.” Id. § 404.1520(a)(4)(iv). To do this, the ALJ compares 2 the claimant’s residual function capacity with the physical and mental demands of the 3 claimant’s past relevant work.” Id. § 404.1520(f). If the claimant can still perform his past 4 relevant work, the ALJ will find that the claimant is not disabled. Id. § 1520(a)(4)(iv). 5 Otherwise, the ALJ proceeds to the final step. 6 At the fifth and final step, the ALJ considers whether the claimant “can make an 7 adjustment to other work” that exists in the national economy. Id. § 404.1520(a)(4)(v). In 8 making this determination, the ALJ considers the claimant’s RFC, age, education, and 9 work experience. Id. § 404.1520(g)(1). If the ALJ finds that the claimant can make an 10 adjustment to other work, then the claimant is not disabled. Id. § 404.1520(a)(4)(v). 11 However, if the ALJ finds that the claimant cannot make an adjustment to other work, then 12 the claimant is disabled. Id. 13 In evaluating the claimant’s disability under this five-step process, the ALJ must 14 consider all evidence in the case record. Id. § 404.1520(a)(3). This includes medical 15 opinions, records, self-reported symptoms, and third-party reporting. See id. §§ 404.1527; 16 404.1529. 17 C. The ALJ’s Evaluation under the Five Step Process 18 At step one of the sequential evaluation process, the ALJ found that Plaintiff had 19 not engaged in substantial gainful activity since June 1, 2014, the amended alleged onset 20 date. (Doc. 8-3 at 21). In step two, the ALJ ascertained that Plaintiff had the following 21 severe impairments: “degenerative disc disease of the cervical and lumbar spine, obesity, 22 anxiety disorder, and post-traumatic stress disorder.” (Id.). Under the third step, the ALJ 23 determined that Plaintiff did not have an impairment or combination of impairments that 24 meets or medically equals the severity of the impairments listed in the Social Security 25 Regulations. (Id. at 22). 26 Before moving on to step four, the ALJ conducted an RFC determination after 27 consideration of the entire record. (Id. at 23). The ALJ found that Plaintiff had “the residual 28 functional capacity to perform light work as defined in 20 CFR 404.1567(b) except he is 1 able to perform unskilled work requiring no more than occasional interaction with 2 coworkers and supervisors.” (Id.). 3 At step four, the ALJ found that Plaintiff is unable to perform his past relevant work 4 as a nurse or communications director. (Id. at 29). Finally, the ALJ concluded at step five 5 that based on Plaintiff’s RFC, age, education, and work experience, Plaintiff could perform 6 a significant number of jobs existing in the national economy. (Id. at 30). Consequently, 7 the ALJ concluded that Plaintiff had not been under a disability under the Social Security 8 Act from June 1, 2014 through September 27, 2017—the date of the ALJ’s decision. (Id. 9 at 31). 10 III. ANALYSIS 11 Plaintiff asserts that the ALJ’s denial of his application for Social Security benefits 12 was not supported by substantial evidence and rests upon an error of law. (Docs. 1 at 2; 9 13 at 8, 13, 20). Specifically, Plaintiff argues that the Court should reverse and remand the 14 final decision of the Agency because the ALJ failed to articulate legally sufficient reasons 15 for rejecting medical opinions from Plaintiff’s treating physicians, (Doc. 9 at 8), and 16 Plaintiff’s subjective symptom testimony, (id. at 13). Plaintiff also claims the ALJ’s 17 determination that Plaintiff could perform the identified occupations at step five of the 18 disability analysis is not supported by substantial evidence. (Id. at 20). However, for the 19 reasons set forth below, the final decision of the Commissioner is affirmed. 20 A. Whether the ALJ Properly Evaluated the Opinions of Plaintiff’s 21 Treating Physicians 22 Plaintiff argues that the ALJ failed to articulate specific and legitimate reasons for 23 rejecting the opinions of Dr. Pulido, Dr. Williams, Dr. Delucia, Dr. Moshkovski and, Dr. 24 Castillo—five of Plaintiff’s treating physicians. (Doc. 9 at 8). 25 In social security cases, there are three types of medical opinions: “those from 26 treating physicians, examining physicians, and non-examining physicians.” Valentine v. 27 Comm’r, 574 F.3d 685, 692 (9th Cir. 2009) (citation omitted). “The medical opinion of a 28 claimant’s treating physician is given ‘controlling weight’ so long as it ‘is well-supported 1 by medically acceptable clinical and laboratory diagnostic techniques and is not 2 inconsistent with the other substantial evidence in [the claimant’s] case record.’” Trevizo 3 v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527(c)(2)). ALJs 4 generally give more weight to medical opinions from treating physicians “since these 5 sources are likely to be the medical professionals most able to provide a detailed, 6 longitudinal picture of [the claimant’s] medical impairment(s) and may bring a unique 7 perspective to the medical evidence that cannot be obtained from the objective medical 8 findings alone or from reports of individual examinations . . . .” 20 C.F.R. 9 §§ 404.1527(c)(2), 416.927(c)(2). Thus, the opinion of a treating source is generally given 10 more weight than the opinion of a doctor who does not treat the claimant. Lester v. Chater, 11 81 F.3d 821, 830 (9th Cir. 1995) (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 12 1987)). 13 Should the ALJ decide not to give the treating physician’s medical opinion 14 controlling weight, the ALJ must weigh it according to factors such as the nature, extent, 15 and length of the physician-patient relationship, the frequency of evaluations, whether the 16 physician’s opinion is supported by and consistent with the record, and the specialization 17 of the physician. Trevizo, 871 F.3d at 676; see 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). 18 Although a “treating physician’s opinion is entitled to ‘substantial weight,’” Bray, 554 F.3d 19 at 1228 (citation omitted), it is “not binding on an ALJ with respect to the existence of an 20 impairment or the ultimate determination of disability.” Batson, 359 F.3d at 1195. Rather, 21 an ALJ may reject the uncontradicted opinion of a treating physician by stating “clear and 22 convincing reasons that are supported by substantial evidence.” Ryan v. Comm’r of Soc. 23 Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citation omitted). “If a treating or examining 24 doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may only reject it by 25 providing specific and legitimate reasons that are supported by substantial evidence.” Id. 26 (citation omitted). Nevertheless, “[t]he ALJ need not accept the opinion of any physician, 27 including a treating physician, if that opinion is brief, conclusory, and inadequately 28 supported by clinical findings.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). 1 “The ALJ can meet this burden by setting out a detailed and thorough summary of the facts 2 and conflicting clinical evidence, stating his interpretation thereof, and making findings.” 3 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting Cotton v. Bowen, 799 4 F.2d 1403, 1408 (9th Cir. 1986)). 5 Treating physicians may also offer an opinion on the ultimate issue of disability, but 6 as such it is not a “medical opinion.” 20 C.F.R. §§ 404.1527(d)(1) (“ultimate issue” 7 opinions include those that a claimant is “ ‘disabled’ or ‘unable to work’ ”), 416.927(d)(1) 8 (same); Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (“[i]n disability benefits cases 9 such as this, physicians may render medical, clinical opinions, or they may render opinions 10 on the ultimate issue of disability—the claimant’s ability to perform work”). Therefore, a 11 treating physician’s statement on the ultimate issue of disability, an issue reserved to the 12 Commissioner, is not binding on the ALJ or entitled to special weight. Id.; 13 §§ 404.1527(d)(3) (the Commissioner is not required to give “any special significance” to 14 opinions on the ultimate issue of disability), 416.927(d)(3) (same); McLeod v. Astrue, 640 15 F.3d 881, 885 (9th Cir. 2011) (“[t]he law reserves the disability determination to the 16 Commissioner”). 17 As will be explained below, all five of the treating physicians’ opinions that Plaintiff 18 argues the ALJ erred in evaluating are contradicted by another doctor’s opinion. 19 Accordingly, the Court will evaluate whether the ALJ articulated specific and legitimate 20 reasons supported by substantial evidence for rejecting each of those opinions. See Ryan, 21 528 F.3d at 1198. 22 1. Dr. Pulido’s Opinion 23 In the present case, the ALJ assigned very little weight to the opinion provided by 24 Dr. Pulido, one of Plaintiff’s treating physicians. (Doc. 8-3 at 28). Although Plaintiff argues 25 that the ALJ erred by failing to articulate a legally sufficient reason for doing so, (Doc. 9 26 at 8, 10), the Court finds that the ALJ provided a “specific and legitimate reason” supported 27 by “substantial evidence” for assigning little weight to Dr. Pulido’s opinion. See Ryan, 528 28 F.3d at 1198. 1 On April 18, 2014, Dr. Pulido opined that the claimant was unable to be employed 2 “based on his social impairment causing him difficulties maintaining interpersonal 3 relationships, regulating his mood, making judgments and adjusting to stressful 4 circumstances such as work or work-like environments.” (Doc. 8-8 at 54). This opinion 5 differs from the opinion of Dr. Castillo, who stated that Plaintiff was seriously limited but 6 not precluded from working in coordination with others, completing a normal workweek, 7 getting along with coworkers and dealing with normal stress. (Doc. 8-18 at 120–125). 8 The ALJ gave Dr. Pulido’s opinion very little weight because it was “inconsistent 9 with the objective medical record as a whole” and because Dr. Pulido “failed to set forth 10 details in her report of the objective medical evidence she relied upon in rendering her 11 opinions.” (Doc. 8-3 at 27–28). 12 Inconsistency between a physician’s opinion and objective medical findings 13 constitutes a “specific and legitimate reason” for rejecting the contradicted opinion of a 14 treating physician. See Valentine v. Comm’r, 574 F.3d 685, 692–93 (9th Cir. 2009); 15 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (holding that the ALJ’s rejection 16 of a treating physician’s opinion because the medical records were inconsistent with the 17 limitations set forth in that physician’s opinion constituted a “specific and legitimate 18 reason” for discrediting that opinion); 20 C.F.R. § 404.1527(c)(4) (“Generally, the more 19 consistent a medical opinion is with the record as a whole, the more weight [the ALJ] will 20 give to that medical opinion.”); SSR 06-03P, 2006 WL 2329939, at *4 (Aug. 9, 2006). 21 The ALJ detailed the medical evidence and clinical findings from 2014 through the 22 date of the hearing and then evaluated medical opinions based on whether they were 23 consistent with the medical record. (Doc. 8-3 at 23–29). In his decision, the ALJ described 24 the medical evidence and determined that the medical record did not support the social 25 limitations identified by Dr. Pulido. (Id.). 26 For example, although Plaintiff alleged disability because of an anxiety disorder and 27 post-traumatic stress disorder, the ALJ noted that at the hearing Plaintiff stated he was able 28 to attend church and socialize in a normal manner. (Id. at 24–25). Furthermore, the ALJ 1 noted that mental status examinations showed Plaintiff was alert, oriented, polite, and 2 cooperative. (Id. at 25). The examinations also showed that Plaintiff’s mood was good, his 3 speech regular, his concentration intact, and his thought processes clear. (Id.). The ALJ 4 also noted that in December 2015, Plaintiff reported he was doing well and had improved 5 relationship satisfaction. (Id. at 26). These findings are inconsistent with Dr. Pulido’s 6 opinion that Plaintiff could not be employed due to his social impairments and instead 7 indicate that “he is not as limited as she opined.” (Id. at 28). Thus, the ALJ afforded her 8 opinion very little weight. (Id.). 9 The ALJ also afforded very little weight to Dr. Pulido’s opinion because “she failed 10 to set forth details in her report of the objective medical evidence that she relied upon in 11 rendering her opinions.” (Doc. 8-3 at 27). “[A]n ALJ need not accept a treating physician’s 12 opinion that is conclusory and brief and unsupported by clinical findings.” Tonapetyan v. 13 Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (citing Matney, 981 F.2d at 1019). Dr. Pulido’s 14 written letter was sent to document that Plaintiff participated in a residential recovery 15 program and is not a medical source evaluation. (Doc. 8-8 at 54). Dr. Pulido’s statement is 16 merely five sentences long, does not cite any records, and remarks that Plaintiff “is unable 17 to be employed based on his social impairment.” (Id.). Dr. Pulido’s letter fails to specify 18 what Plaintiff’s social impairment is or what Plaintiff is able or unable to do, and the 19 ultimate determination of disability is “an issue reserved to the Commissioner.” SSR 96- 20 8P, 1996 WL 374184, at *7 n. 8 (July 2, 1996). Therefore, the ALJ properly noted that Dr. 21 Pulido “failed to set forth details in her report of the objective medical evidence she relied 22 upon in rendering her opinion.” (Doc. 8-3 at 27). Accordingly, the Court finds that the ALJ 23 articulated specific and legitimate reasons based on substantial evidence for assigning very 24 little weight to the opinion of Dr. Pulido. 25 2. Dr. Williams’ Opinion 26 The ALJ also assigned very little weight to the opinion provided by Dr. Williams. 27 (Doc. 8-3 at 27–28). Although Plaintiff argues that the ALJ erred by failing to articulate a 28 legally sufficient reason for doing so, (Doc. 9 at 8, 10), the Court finds that the ALJ 1 provided a “specific and legitimate reason” supported by “substantial evidence” for 2 assigning little weight to Dr. Williams’ opinion. See Ryan, 528 F.3d at 1198. 3 On September 24, 2015, Dr. Williams opined that Plaintiff was precluded from 4 seeking, attaining and maintaining employment because of his PTSD symptoms including 5 nightmares, irritability, poor sleep, emotional numbing, depressed and anxious mood 6 states, and hypervigilance. (Doc. 8-16 at 96). The ALJ afforded this opinion very little 7 weight for the same reasons as Dr. Pulido’s, namely that it is inconsistent with the objective 8 medical record and unsupported by detailed findings. (Doc. 8-3 at 27–28). Dr. Williams’ 9 opinion also differs from Dr. Castillo’s opinion that Plaintiff was not precluded from 10 completing a normal workday and workweek, performing at a consistent pace, and dealing 11 with normal stress. (Doc. 8-18 at 120–125). 12 Prior to discussing Dr. Williams’ opinion, the ALJ noted the mental status 13 examinations of Plaintiff show that his affect was full, that he was pleasant, and had calm 14 and cooperative behavior. (Doc. 8-3 at 25). Further, the examinations showed Plaintiff did 15 not have any psychosis or manic symptoms and that his thought processes were coherent, 16 logical and goal directed. (Id.). The ALJ also noted that Plaintiff testified his health 17 impairments were exacerbated by his past use of alcohol. (Id. at 26). The ALJ found that 18 the medical evidence indicated that Plaintiff’s mental health impairments were not as 19 severe as he alleged. (Id.). After detailing this evidence and reaching his conclusion, the 20 ALJ found that the opinion of Dr. Williams, that Plaintiff was precluded from working, 21 was not consistent with the objective medical record as a whole. (Id. at 28). 22 Additionally, the ALJ noted that Dr. Williams’ opinion is unsupported by any 23 detailed findings. (Id.). Dr. Williams’ opinion is only five sentences long and does not cite 24 any records and merely determines that Plaintiff is precluded from seeking, attaining and 25 maintaining employment, “an issue reserved to the Commissioner.” (Doc. 8-16 at 96); SSR 26 96-8p at *7 n. 8. Accordingly, the Court finds that the ALJ articulated specific and 27 legitimate reasons based on substantial evidence for assigning very little weight to the 28 opinion of Dr. Williams. 1 3. Dr. Delucia’s Opinion 2 The ALJ assigned partial weight to the opinion provided by Dr. Delucia. (Doc. 8-3 3 at 27). Although Plaintiff argues that the ALJ erred by failing to articulate a legally 4 sufficient reason for doing so, (Doc. 9 at 8, 10), the Court finds that the ALJ provided a 5 “specific and legitimate reason” supported by “substantial evidence” for assigning partial 6 weight to Dr. Delucia’s opinion. See Ryan, 528 F.3d at 1198. 7 On March 30, 2017, Dr. Delucia completed a medical source statement in which he 8 opined that Plaintiff could walk for a few minutes at a time, could sit for one hour at a time 9 and could stand for two hours at a time. (Doc. 8-18 at 112–115). Dr. Delucia also opined 10 that Plaintiff could sit, stand and/or walk for at least six hours in an eight-hour workday, 11 that Plaintiff would need four unscheduled breaks a day for ten minutes at a time and that 12 Plaintiff would be off task fifteen percent of the workday and would miss about a day of 13 work per month. (Id.). Dr. Delucia’s opinion differs from the opinions provided by state 14 agency consultants Dr. Karelitz and Dr. Cureg, who opined that Plaintiff’s physical 15 impairments were non-severe. (Doc. 8-4 at 9, 18, 30). 16 The ALJ stated that he was assigning partial weight to Dr. Delucia’s opinion 17 because, although it was “mostly consistent with the objective medical evidence as a 18 whole,” the objective physical examinations and imaging of Plaintiff “indicated that he was 19 not as limited as [Dr. Delucia] opined.” (Doc. 8-3 at 27). The ALJ also noted that Dr. 20 Delucia indicated he only treated Plaintiff once a year. (Id.). 21 The ALJ is required to consider the length of the treatment relationship between the 22 physician and the claimant in determining how much weight to afford the treating 23 physician’s medical opinion. See Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014). 24 Accordingly, the ALJ properly noted that Dr. Delucia indicated that he only treated 25 Plaintiff once a year as a reason for affording the opinion only partial weight. (Doc. 8-3 at 26 27); (See Doc. 18-8 at 62). 27 The ALJ also detailed the medical evidence as it pertained to Plaintiff’s physical 28 impairments and then evaluated Dr. Delucia’s opinion based on whether it was consistent 1 with that evidence. (Doc. 8-3 at 24–27). The ALJ noted that Plaintiff indicated he could 2 walk up to two miles before needing a break. (Id. at 24). The ALJ also noted that in January 3 2017, an examination showed Plaintiff had some reduced range of motion in his cervical 4 spine but it was non-tender and no muscle spasm was noted. (Id.). The ALJ further noted 5 that Plaintiff had full range of motion in all planes and had 5/5 motor strength in his upper 6 and lower extremities. (Id.). Imaging of Plaintiff’s lumbar spine and cervical spine revealed 7 only mild to moderate degenerative changes and the X-rays of Plaintiff’s shoulder were 8 essentially normal. (Id.). These findings do not fully support the limitations identified by 9 Dr. Delucia. Accordingly, the Court finds that the ALJ gave specific and legitimate reasons 10 based on substantial evidence for assigning Dr. Delucia’s opinion partial weight. 11 4. Dr. Moshkovski’s Opinion 12 The ALJ assigned little weight to the opinion of Dr. Moshkovski. (Doc. 8-3 at 26). 13 Although Plaintiff argues that the ALJ erred by failing to articulate a legally sufficient 14 rationale for doing so, (Doc. 9 at 8, 10), the Court finds that the ALJ provided a “specific 15 and legitimate reason” supported by “substantial evidence” for assigning little weight to 16 Dr. Moshkovski’s opinion. See Ryan, 528 F.3d at 1198 17 On April 4, 2017, Dr. Moshkovski completed a medical source statement in which 18 she opined that Plaintiff could rarely lift and carry ten pounds, and that Plaintiff has 19 significant limitations with reaching, handling and fingering. Dr. Moshkovski also opined 20 that Plaintiff only could stand for an hour at a time, and sit for 20 minutes at a time. (Doc. 21 8-18 at 116–119). The ALJ assigned little weight to the opinions of Dr. Moshkovski “as 22 they are inconsistent with the objective medical record as a whole” and “specifically the 23 objective physical examinations and imaging” (Doc. 8-3 at 26). Dr. Moshkovski’s opinion 24 also differs from the opinions provided by state agency consultants Dr. Karelitz and Dr. 25 Cureg, who opined that Plaintiff’s physical impairments were non-severe. (Doc. 8-4 at 9, 26 18, 30). 27 As noted above, the ALJ explained that imaging of the Plaintiff’s lumbar and 28 cervical spine revealed only mild to moderate degenerative changes and the imaging of his 1 left shoulder was essentially normal. (Doc. 8-3 at 26). Plaintiff reportedly had 5/5 motor 2 strength in upper and lower extremities and had full range of motion in all planes. (Id. at 3 24). Plaintiff also did not have any tenderness to palpation of his spine. (Id.). These findings 4 are inconsistent with the significant limitations identified by Dr. Moshkovski. 5 Furthermore, at the hearing Plaintiff stated he could lift between 50 and 100 pounds. (Id. 6 at 26). This evidence is inconsistent with Dr. Moshkovski’s opinion that Plaintiff could 7 rarely lift and carry ten pounds. The ALJ also noted that Dr. Moshkovski indicated that she 8 had only seen the claimant twice before rendering her opinion. (Id.); (See Doc. 9 at 11); 9 (Doc. 8-18 at 116). Furthermore, Dr. Moshkovski’s opinion on the severity of Plaintiff’s 10 limitations differs from Dr. Delucia’s opinion. (Doc. 8-18 at 116–119); c.f. (Doc. 8-18 at 11 112–115). Accordingly, the Court finds that the ALJ articulated specific and legitimate 12 reasons supported by substantial evidence for assigning Dr. Moshkovski’s opinion little 13 weight. 14 5. Dr. Castillo’s Opinion 15 The ALJ assigned very little weight to the opinion of Dr. Castillo. (Doc. 8-3 at 26– 16 27). Although Plaintiff argues that the ALJ erred by failing to articulate a legally sufficient 17 rationale for doing so, (Doc. 9 at 8, 10), the Court finds that the ALJ provided a “specific 18 and legitimate reason” supported by “substantial evidence” for assigning little weight to 19 Dr. Castillo’s opinion. See Ryan, 528 F.3d at 1198 20 On April 4, 2017 Dr. Castillo submitted a medical source statement stating that 21 Plaintiff was seriously limited but not precluded from remembering work-like procedures, 22 working in coordination with others, understanding and remembering detailed instructions, 23 dealing with stress, and maintaining socially appropriate behavior. (Doc. 8-18 at 120–125). 24 Dr. Castillo further opined that Plaintiff was limited in is ability to adhere to basic standards 25 of neatness and cleanliness. (Doc. 8-18 at 123). This differs from the opinions of state 26 agency consultants Dr. Kotler and Dr. Schumacher, who opined that Plaintiff was able to 27 sustain adequate attention and concentration to complete simple and some detailed tasks in 28 a work setting and that Plaintiff was not significantly limited in his ability to get along with 1 coworkers or adhere to basic standards of neatness and cleanliness. (See Doc. 8-4 at 14– 2 15, 34–36). 3 The ALJ gave very little weight to the opinion of Dr. Castillo because it was 4 “inconsistent with the medical records as a whole,” specifically Plaintiff’s mental status 5 examinations, and because “Dr. Castillo did not support his opinions with any details or 6 indicated the objective medical evidence he relied upon in rendering his opinions.” (Doc. 7 8-3 at 27). In evaluating the medical evidence, the ALJ noted that Plaintiff’s grooming was 8 within normal limits and, in fact, Plaintiff reportedly had good hygiene and grooming. (Id. 9 at 25). This evidence is inconsistent with Dr. Castillo’s opinion that Plaintiff was limited 10 in his ability to adhere to basic standards of neatness and cleanliness. The ALJ also noted 11 that Plaintiff’s thought processes were found to be organized, linear, coherent, logical and 12 goal-directed and his concentration was noted to be intact. (Id. at 25). Mental status 13 examinations also showed that Plaintiff had good recall of recent and distant past events. 14 (Id.). This evidence is inconsistent with the memory limitations identified by Dr. Castillo. 15 Further, much of Dr. Castillo’s opinion is in the form of a checklist and thus the 16 ALJ found that it did not provide “any details or indicated the objective medical evidence 17 he relied upon in rendering his opinions.” (Doc. 8-3 at 27). Conclusory opinions “in the 18 form of a check-list” lack “substantive medical findings” and, as a result, do not provide 19 objective medical evidence to support the treating physician’s conclusion. See Batson, 359 20 F.3d at 1195 (finding the ALJ properly gave minimal weight to treating physician’s opinion 21 partly because it was unsupported by objective medical evidence). Accordingly, the Court 22 finds that the ALJ articulated specific and legitimate reasons supported by substantial 23 evidence for assigning Dr. Castillo’s opinion little weight. 24 Because the ALJ articulated specific and legitimate reasons for not giving the 25 opinions of the five physicians controlling weight, the Court finds that that the ALJ did not 26 err is his evaluation of the medical opinion evidence. 27 28 1 B. Whether the ALJ Properly Evaluated Plaintiff’s Subjective Symptom 2 Testimony 3 Plaintiff also argues that the ALJ erred by failing to articulate clear and convincing 4 reasons for rejecting Plaintiff’s subjective symptom testimony. (Doc. 9 at 13). Plaintiff 5 specifically argues that the ALJ erred by solely rejecting Plaintiff’s testimony due to 6 inconsistency with objective medical evidence. (Doc. 9 at 18). 7 An ALJ must engage in a two-step analysis to determine whether a claimant’s 8 testimony regarding subjective pain or symptoms is credible. Garrison v. Colvin, 759 F.3d, 9 995, 1014 (9th Cir. 2014). “First, the ALJ must determine whether the claimant has 10 presented objective medical evidence of an underlying impairment ‘which could 11 reasonably be expected to produce the pain or other symptoms alleged.’” Id. (quoting 12 Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007)). At this step, a claimant is 13 not required to show “that [his] impairment could reasonably be expected to cause the 14 severity of the symptom [he] has alleged; [he] need only show that it could reasonably have 15 caused some degree of the symptom.” Id. (quoting Smolen v. Chater, 80 F.3d 1273, 1282 16 (9th Cir. 1996)). Additionally, a claimant is not required to produce “objective medical 17 evidence of the pain or fatigue itself, or the severity thereof.” Id. 18 Second, if the claimant satisfies the first step of the analysis, then “the ALJ can 19 reject the claimant’s testimony about the severity of her symptoms only by offering 20 specific, clear and convincing reasons for doing so.” Id. at 1014–15 (quoting Smolen, 80 21 F.3d at 1281). “Unless an ALJ makes a finding of malingering based on affirmative 22 evidence thereof, [the ALJ] may only find an applicant not credible by making specific 23 findings as to credibility and stating clear and convincing reasons for each.” Robbins, 466 24 F.3d at 883; see Lingenfelter, 504 F.3d at 1036. The ALJ may not fulfill this requirement 25 by making general findings; “rather, the ALJ must identify what testimony is not credible 26 and what evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834. “The 27 clear and convincing standard is the most demanding requirement in Social Security cases.” 28 Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 925 (9th Cir. 2002). 1 In assessing a claimant’s credibility, an ALJ may consider a range of factors, 2 including: “(1) ordinary techniques of credibility evaluation, such as the claimant’s 3 reputation for lying, prior inconsistent statements concerning the symptoms, and other 4 testimony by the claimant that appears less than candid; (2) unexplained or inadequately 5 explained failure to seek treatment or to follow a prescribed course of treatment; and (3) 6 the claimant’s daily activities.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) 7 (quoting Smolen, 80 F.3d at 1284). Other factors that an ALJ may consider when 8 determining the credibility of a claimant’s symptoms include: the location, duration, 9 frequency, and intensity of other symptoms; factors that precipitate and aggravate the 10 symptoms; medications taken and treatments received for symptom relief; any other 11 measures for symptom relief; and any other factors concerning the individual’s functional 12 limitations and restrictions due to pain or other symptoms. See SSR 16-3P, 2017 WL 13 5180304, at * 7–8 (Oct. 25, 2017). The ALJ may not, however, make a negative credibility 14 finding “solely because” the claimant’s symptom testimony “is not substantiated 15 affirmatively by objective medical evidence.” Robbins, 466 F.3d at 883. 16 The ALJ found that Plaintiff’s medically determinable impairments could 17 reasonably be expected to cause the alleged symptoms. (Doc. 8-3 at 25). The ALJ found, 18 however, that the “intensity, persistence and limiting effects of those symptoms are not 19 entirely consistent with the medical evidence and other evidence in the records,” 20 specifically Plaintiff’s activities of daily living, objective physical examinations and 21 mental status examinations. (Id. at 25–26). 22 1. Daily Activities 23 The Ninth Circuit has repeatedly held it is appropriate to consider a claimant’s daily 24 activities as a factor in assessing a claimant’s subjective symptom testimony. See Revels, 25 874 F.3d at 667–68; see also SSR 16-3P at *7–8. While the Social Security Act “does not 26 require that claimants be utterly incapacitated to be eligible for benefits,” Smolen, 80 F.3d 27 at 1284 n.7, an “ALJ may discredit a claimant’s testimony when the claimant reports 28 participation in everyday activities indicating capacities that are transferable to a work 1 setting.” Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (citation omitted). 2 Moreover, even if the daily activities undertaken by the claimant “suggest some difficulty 3 functioning, they may be grounds for discrediting the claimant’s testimony to the extent 4 that they contradict claims of a totally debilitating impairment.” Id. (citing Turner v. 5 Comm’r of Soc. Sec., 613 F.3d 1217, 1225 (9th Cir. 2010)). 6 The ALJ contrasts Plaintiff’s statements that he is able to attend church and socialize 7 in a normal manner with his alleged disability because of an anxiety disorder and post- 8 traumatic stress disorder. (Doc. 8-3 at 24–25). Plaintiff also indicated in his function report, 9 which the ALJ referenced, that he goes outside every day, shops in stores, drives a car, 10 spends time talking with others on the phone and at his house, and plays with his children 11 and dogs. (Doc. 8-7 at 26–30). Further, during the hearing in front of the ALJ, Plaintiff 12 stated that he was able to be in crowds, even though he does not like to be. (Doc. 8-3 at 13 127). The ALJ could reasonably conclude that the ability to be around and socialize with 14 others, in places such as a store or church, could transfer to a work-like environment, 15 especially a position with only occasional interaction with coworkers and supervisors and 16 no interaction with the general public. (Doc. 8-3 at 132). Therefore, the ALJ provided a 17 clear and convincing reason for discounting Plaintiff’s testimony about the severity and 18 intensity of his mental health symptoms. See Molina, 674 F.3d at 1112–13 (“The ALJ could 19 reasonably conclude that [the claimant’s] activities, including walking her two 20 grandchildren to and from school, attending church, shopping, and taking walks, 21 undermined her claims that she was incapable of being around people without suffering 22 from debilitating panic attacks.”); Lori S. v. Berryhill, No. CV-17-1267-SI, 2018 WL 23 4742511, at *5 (D. Or. Oct. 2, 2018) (finding proper the ALJ’s recitation of Plaintiff’s 24 ability to use public transportation, exercise at a community pool, shop in stores, and attend 25 church as well as bible study to support rejecting Plaintiff’s alleged cognitive and social 26 problems). 27 The ALJ also noted, with respect to Plaintiff’s claim that he is unable to work due 28 to his back pain, hip pain and tinnitus, that Plaintiff testified that he could lift between 50 1 and 100 pounds, went to the gym a lot and was trying to build up musculature. (Doc. 8-3 2 at 26). In his function report, Plaintiff reports being able to cook meals, clean, do laundry, 3 dishes, pick up after his dog and pull weeds. (Doc. 8-7 at 27–30). Plaintiff engages in a 4 number of daily home activities and these home activities indicate that he can move around 5 and perform light physical tasks. The ALJ could reasonably view those skills as 6 transferable to a work-like setting. Here, even though Plaintiff stated that he had difficulty 7 functioning, the ALJ properly discounted the credibility of Plaintiff’s subjective symptom 8 testimony to the extent Plaintiff’s daily activities were inconsistent with an inability to 9 work in any capacity. See, e.g., Molina, 674 F.3d at 1113 (“[An] ALJ may discredit a 10 claimant’s testimony when the claimant reports participation in everyday activities 11 indicating capacities that are transferable to a work setting[,] [e]ven where those activities 12 suggest some difficulty functioning . . .” (citations omitted)); Curry v. Sullivan, 925 F.2d 13 1127, 1130 (9th Cir. 1990) (finding that the claimant’s ability to “take care of her personal 14 needs, prepare easy meals, do light housework and shop for some groceries ... may be seen 15 as inconsistent with the presence of a condition which would preclude all work activity” 16 (citations omitted)). Thus, the ALJ articulated a clear and convincing reason based on 17 Plaintiff’s activities for discounting Plaintiff’s subjective symptom testimony. 18 2. Objective Support 19 The ALJ also found that Plaintiff’s subjective symptom testimony was inconsistent 20 with objective physical examinations, imaging and Plaintiff’s history of medical treatment. 21 (Doc. 8-3 at 25). With respect to Plaintiff’s mental health symptoms, the ALJ pointed to 22 the mental status examinations, which have been discussed above, see supra Part II(a)(1,2), 23 and specifically the report by Plaintiff stating that he was doing well and had improved 24 relationship satisfaction. (Id. at 25–26). The ALJ acknowledged that Plaintiff had some 25 workplace limitations but that they were taken into account in the residual functional 26 capacity. (Id. at 26). 27 With respect to physical impairments, the ALJ noted that imaging of Plaintiff’s 28 lumbar and cervical spine revealed only mild to moderate degenerative changes and the 1 imaging of his shoulder was essentially normal. (Id. at 26). There was no tenderness to 2 palpation in his spine, deep tendon reflexes of his bilateral upper extremities were normal 3 and his spine was non-tender and no spasm was noted. (Id. at 24). Upon reviewing the 4 evidence, the ALJ found “the corresponding objective physical examinations of the 5 claimant revealed primarily subjective complaint of pain weakness with only minimal 6 objective physical findings. (Id. at 26). Therefore, the ALJ properly found evidence in the 7 medical record that Plaintiff’s symptoms were not as limiting as he alleged. 8 3. Other Factors 9 When determining the credibility of a claimant’s symptoms an ALJ may consider 10 factors that precipitate and aggravate Plaintiff’s symptoms. See SSR 16-3P, 2017 WL 11 5180304, at *7–8. Here, the ALJ noted factors that precipitated and aggravated Plaintiff’s 12 symptoms: smoking cigarettes and past consumption of alcohol. (Doc. 8-3 at 26). The ALJ 13 noted Plaintiff smokes cigarettes despite their negative impact on his spinal impairments 14 and Plaintiff used to drink alcohol, which exacerbated his mental health impairments. (Id.). 15 An ALJ may also consider other factors in determining the credibility of a plaintiff’s 16 subjective symptom testimony. Ghanim, 763 F.3d at 1163. The ALJ noted that Plaintiff 17 claims he is only able to stand for only a few minutes at a time. (Id. at 24). This is in contrast 18 to Dr. Delucia’s opinion that he could stand for two hours at a time, (Doc. 8-18 at 113), as 19 well as Dr. Moshkovski’s opinion that he could stand for an hour at a time, (Doc. 8-18 at 20 117). In his disability application, Plaintiff stated that he has trouble lifting weight. (Doc. 21 8-3 at 24). However, at the hearing before the ALJ Plaintiff testified that he could lift 22 between 50 and 100 pounds. (Id. at 26). It is the ALJ’s duty to evaluate evidence, resolve 23 ambiguities and determine credibility. See Andrews, 53 F.3d at 1039. Here, the ALJ 24 evaluated the evidence and credibility of Plaintiff’s testimony and determined based on 25 clear and convincing evidence that Plaintiff’s symptoms were not as limiting as he alleged. 26 (Doc. 8-3 at 23–26). Thus, the ALJ did not error in rejecting Plaintiff’s subjective symptom 27 testimony. 28 1 C. Whether the ALJ Properly Found that Plaintiff Could Perform Other 2 Work Existing in the National Economy 3 The Court next turns to Plaintiff’s argument that the ALJ erred at step five of the 4 sequential evaluation by failing to resolve an alleged conflict between the vocational 5 expert’s (“VE”) testimony and the Dictionary of Occupational Titles (“DOT”). (Doc. 9 at 6 20). Specifically, Plaintiff claims that, according to the descriptions in the DOT, the jobs 7 identified by the VE are incompatible with Plaintiff’s RFC, which limits him to light 8 unskilled work requiring no more than occasional interaction with coworkers and 9 supervisors and no interaction with the general public. (Id.). 10 “At step five of the sequential evaluation for disability, the Commissioner bears the 11 burden of proving that the SSI claimant can perform other work in the national economy, 12 given the claimant’s RFC, age, education, and work experience.” Gonzales v. Colvin, No. 13 CV-12-01068-AA, 2013 WL 3199656, at *3 (D. Or. June 19, 2013) (citations omitted). 14 When determining whether a claimant can perform other work, “the best source for how a 15 job is generally performed” in the national economy is usually the DOT. Pinto v. 16 Massanari, 249 F.3d 840, 845 (9th Cir. 2001) (citations omitted). However, “[t]he DOT is 17 not the sole source of admissible information concerning jobs.” Johnson v. Shalala, 60 18 F.3d 1428, 1435 (9th Cir. 1995) (quotation omitted). Rather, the ALJ may also rely on 19 testimony from a VE, even if the VE’s testimony on job traits varies from the DOT 20 classification. Id. However, before relying on VE testimony about the requirements of a 21 particular occupation, “the ALJ must [first] ask the VE if his or her testimony is consistent 22 with the DOT.” Wentz v. Comm’r of Soc. Sec. Admin., 401 Fed. Appx. 189, 191 (9th Cir. 23 2010) (citing Massachi v. Astrue, 486 F.3d 1149, 1152–53 (9th Cir. 2007)). 24 Not all potential conflicts between a vocational expert’s testimony and the DOT’s 25 “maximum requirements” for an occupation will be apparent or obvious and “an ALJ need 26 only follow up on those that are.” Gutierrez v. Colvin, 844 F.3d 804, 807–08 (9th Cir. 27 2016). However, if “there is an apparent unresolved conflict between VE . . . evidence and 28 the DOT, the [ALJ] must elicit a reasonable explanation for the conflict before relying on 1 the VE . . . evidence to support a determination or decision about whether the claimant is 2 disabled.” SSR 00-4P, 2000 WL 1898704 (Dec. 4, 2000). Accordingly, an “ALJ may rely 3 on expert testimony which contradicts the DOT, but only insofar as the record contains 4 persuasive evidence to support the deviation.” Johnson, 60 F.3d at 1435. For example, a 5 reasonable explanation for such conflict might include “[i]nformation about a particular 6 job’s requirements or about occupations not listed in the DOT...from a VE’s...experience 7 in job placement or career counseling.” SSR 00-4P at * 2. 8 Here, the VE testified that Plaintiff would be able to perform jobs existing in the 9 national economy, specifically Plaintiff could work as an office helper, assembly worker 10 or mail clerk. (Doc. 8-3 at 133). The VE stated that his testimony was consistent with the 11 DOT. (Id.). The Court does not find that there is a direct apparent conflict between the 12 DOT and the VE’s testimony. Plaintiff does not cite the DOT to show that any of the jobs 13 listed by the VE are not unskilled or require more than occasional interaction with 14 coworkers or supervisors.2 (See Doc. 9 at 20–23). Rather, in support, Plaintiff points to 15 descriptions of these jobs contained in the Occupational Information Network (“O*Net”). 16 (Id.). Plaintiff’s reliance on O*Net is misplaced and the appropriate reference is to the 17 Dictionary of Occupational Titles. See Valentin v. Berryhill, No. CV-17-944-DFM, 2018 18 WL 4300119, at *10 (D. Conn. Sept. 9, 2018) (citing Ryan v. Astrue, 650 F. Supp. 2d 207, 19 218 (N.D.N.Y. 2009)). “Even if the VE’s testimony was in conflict with O*Net, there is 20 no requirement that the VE’s testimony comply with that database,” the “VE’s testimony 21 [only] must comply with the DOT.” Ryan, 650 F. Supp. 2d at 218; See also SSR 00-4P at 22 *2 (“In making disability determinations, we rely primarily on the DOT (including its 23 companion publication, the SCO) for information about the requirements of work in the 24 national economy.”). The ALJ had no duty to take administrative notice of the O*Net 25 database and then use information from that source to compare it to the DOT or the VE’s
26 2 The Court searched for DOT number 726.684-022, assembly worker, on Westlaw, Lexis Advance and O*Net and was unable to determine whether the job of an assembly worker 27 has an SVP of 2 or 3. Because the VE and ALJ listed two other occupations Plaintiff could perform, the Court finds that this error was harmless and would not have impacted the 28 ALJ’s determination that jobs exist in the national economy which Plaintiff could perform. See Molina, 674 F.3d at 1115–22 (9th Cir. 2012). 1 || testimony. Wagner v. Berryhill, No. CV-17-5698-AS, 2018 WL 3956485, at *6 (C.D. Cal. 2|| Aug. 14, 2018) (“The ALJ had no obligation to address the VE’s testimony from other 3|| sources such as O*NET”); Vizearra vy. Berryhill, No. CV-16-01736-DFM, 2018 WL 1684315, at *3 (C.D. Cal. Apr. 5, 2018). Accordingly, the ALJ did not error in relying on || the VE’s testimony in determining that there existed jobs in the national economy which || Plaintiff could perform. 7\| IV. CONCLUSION 8 For the reasons stated above, 9 IT IS ORDERED that the final decision of the Commissioner of Social Security is AFFIRMED. 11 IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment || accordingly and terminate this case. 13 Dated this 28th day of August, 2019. 14 15 of 16 17 _ James A. Teil Org Senior United States District Judge 18 19 20 21 22 23 24 25 26 27 28
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