1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 DEVANTE P., 9 Plaintiff, Case No. C20-50-MLP 10 v. ORDER 11 COMMISSIONER OF SOCIAL SECURITY, 12 Defendant. 13 I. INTRODUCTION 14 Plaintiff seeks review of the denial of his application for Supplemental Security Income. 15 Plaintiff contends the administrative law judge (“ALJ”) erred by finding the Residual Function 16 Capacity (“RFC”) was supported by substantial evidence, rejecting lay witness testimony, 17 finding Plaintiff has past relevant work that he can perform, and in her step five determination. 18 (Dkt. # 10 at 1.) As discussed below, the Court AFFIRMS the Commissioner’s final decision and 19 DISMISSES the case with prejudice. 20 II. BACKGROUND 21 Plaintiff was born in 1993, has a high school education, and has worked as a warehouse 22 worker, dishwasher, driver’s helper, and in custodial work. AR at 75, 241, 424. On December 23 27, 2016, Plaintiff applied for benefits, alleging disability as of March 10, 1999. Id. at 41. 1 Plaintiff’s application was denied initially and on reconsideration, and Plaintiff requested a 2 hearing. Id. at 151-53. After the ALJ conducted a hearing on September 18, 2018, the ALJ issued 3 a decision finding Plaintiff not disabled. Id. at 41-58. 4 Utilizing the five-step disability evaluation process,1 the ALJ found:
5 Step one: Plaintiff has not engaged in substantial gainful activity since December 27, 2016, the application date. 6 Step two: Plaintiff has the following severe impairments: depressive disorder, post- 7 traumatic stress disorder, personality disorder, and thoracic scoliosis (20 C.F.R. § 416.920(c)). 8 Step three: These impairments do not meet or equal the requirements of a listed 9 impairment.2
10 Residual Functional Capacity: Plaintiff can perform light work as defined in 20 C.F.R. § 416.967(b). Plaintiff can frequently perform overhead reaching with the left upper 11 extremity; can maintain sufficient concentration to perform simple, routine tasks in two hour increments throughout the workday; can work in the same room with his coworkers, 12 but there should be no coordination of work activity; can interact superficially with coworkers; can work superficially and occasionally with the general public (for purposes 13 of working with the public, superficially means that working with the public should not be the focus of the job); can interact occasionally with supervisors; and can adapt to very 14 simple workplace changes.
15 Step four: Plaintiff can perform past relevant work as a cleaner/housekeeper. This work does not require the performance of work-related activities precluded by the RFC. 16 Step five: In the alternative, the ALJ found there are jobs that exist in significant numbers 17 in the national economy that Plaintiff can perform, and therefore Plaintiff is not disabled.
18 AR at 41-58. 19 As the Appeals Council denied Plaintiff’s request for review, the ALJ’s decision is the 20 Commissioner’s final decision. AR at 1-7. Plaintiff appealed the final decision of the 21 Commissioner to this Court. 22
23 1 20 C.F.R. § 416.920.
2 20 C.F.R. Part 404, Subpart P. Appendix 1. 1 III. LEGAL STANDARDS 2 Under 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of social 3 security benefits when the ALJ’s findings are based on legal error or not supported by substantial 4 evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th Cir. 2005). As a 5 general principle, an ALJ’s error may be deemed harmless where it is “inconsequential to the
6 ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) 7 (cited sources omitted). The Court looks to “the record as a whole to determine whether the error 8 alters the outcome of the case.” Id. 9 “Substantial evidence” is more than a scintilla, less than a preponderance, and is such 10 relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 11 Richardson v. Perales, 402 U.S. 389, 401 (1971); Magallanes v. Bowen, 881 F.2d 747, 750 (9th 12 Cir. 1989). The ALJ is responsible for determining credibility, resolving conflicts in medical 13 testimony, and resolving any other ambiguities that might exist. Andrews v. Shalala, 53 F.3d 14 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record as a whole, it may
15 neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Thomas v. 16 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is susceptible to more than one 17 rational interpretation, it is the Commissioner’s conclusion that must be upheld. Id. 18 IV. DISCUSSION 19 A. The ALJ Did Not Err in the RFC Determination 20 “RFC is an assessment of an individual’s ability to do sustained work-related physical 21 and mental activities in a work setting on a regular and continuing basis. A ‘regular and 22 continuing basis’ means 8 hours a day, for 5 days a week, or an equivalent work schedule.” SSR 23 96-8p. The RFC assessment must be based on all of the relevant evidence in the case record, such as: medical history; the effects of treatment, including limitations or restrictions imposed by 1 the mechanics of treatment (e.g., side effects of medication); reports of daily activities; lay 2 activities; recorded observations; medical source statements; effects of symptoms, including 3 pain, that are reasonably attributed to a medically determinable impairment; evidence from work 4 attempts; need for structured living environment; and work evaluations. Id. 5 As noted above, the ALJ found Plaintiff can perform light work as defined in 20 C.F.R. §
6 416.967(b) with further restrictions contained in the RFC. Plaintiff argues the ALJ omitted 7 medical information that indicates his limitations are greater than those reflected in the RFC. 8 (Dkt. ## 10 at 8, 14 at 5.) Specifically, Plaintiff argues the ALJ erred in both failing to account 9 for several alleged medical conditions and in discounting two medical opinions. The Court will 10 address each argument in turn. 11 1. Conditions 12 Plaintiff asserts the ALJ did not account for his bipolar disorder diagnosis3 and that 13 although the ALJ acknowledges his scoliosis, the ALJ failed to ascribe limitations regarding this 14 condition. (Dkt. # 10 at 9 (citing AR at 46).) Plaintiff further alleges the RFC has no significant
15 limitations regarding his major depressive disorder. (Id.) 16 Although Plaintiff asserts these medical issues were not accounted for in the RFC, he has 17 not identified what further limitations would be required as a result of these conditions. The ALJ 18 found specific restrictions to account for Plaintiff’s impairments, including a restriction to 19 overhead reaching with just the left upper extremity, simple, routine tasks in limited increments, 20 superficial interaction with co-workers and the general public, and occasional interaction with 21 supervisors. The ALJ applied the proper legal standard and her determination is supported by 22 substantial evidence, as discussed below. Thus, Plaintiff has failed to show the ALJ harmfully 23 3 The Court notes the ALJ did not include bipolar disorder as a severe impairment at step two and Plaintiff does not allege any err in the ALJ’s step two determination. 1 erred. See Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012) (citing Shinseki v. Sanders, 556 2 U.S. 396, 407-09 (2009)) (holding the party challenging an administrative decision bears the 3 burden of proving harmful error). 4 2. Medical Opinions 5 The opinions of examining physicians are to be given more weight than non-examining
6 physicians. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). An ALJ may reject the 7 controverted opinions of an examining physician only by providing specific and legitimate 8 reasons that are supported by the record. Bayliss, 427 F.3d at 1216. 9 a. David Widlan, Ph.D. 10 Dr. Widlan performed a psychological evaluation of Plaintiff in June 2017. AR at 424-30. 11 He opined that Plaintiff suffers from major depressive disorder, post-traumatic stress disorder, 12 and antisocial personality disorder. Id. at 429. Dr. Widlan opined that Plaintiff has deficits in 13 memory, concentration, and social reasoning but would be able to accept simple instructions 14 from a supervisor. Id. He also opined Plaintiff would have trouble remembering more complex
15 tasks and would struggle with persistence and pace. Id. Dr. Widlan further opined Plaintiff would 16 struggle in negotiating simple social stressors and has deficits in activities of daily living. Id. 17 The ALJ assigned Dr. Widlan’s opinion some weight.4 AR at 54. Specifically, the ALJ 18 discounted the portion of his opinion that found Plaintiff would struggle with simple social 19 stressors, persistence, and pace. Id. The ALJ found these opined limitations are inconsistent with 20 records showing Plaintiff was largely alert, oriented, had normal mood and affect, and was 21 cooperative, although he did occasionally appear depressed and/or anxious. Id. (citing, e.g., id. at 22 4 Plaintiff asserts the ALJ gave Dr. Widlan’s opinion only little weight rather than some weight. (Dkt. # 23 14 at 6.) The Court notes that while the ALJ gave Dr. Widlan’s Global Assessment of Functioning (“GAF”) score little weight (AR at 51), the ALJ specifically gave Dr. Widlan’s opinion some weight in her discussion of the medical opinion evidence. See AR at 53-54. 1 342 (organized thought process, no memory impairment, pleasant/cooperative, mild attention 2 impairment), 370 (thought process and content, orientation, perception, fund of knowledge, 3 concentration, and abstract thought within normal limits), 383 (appropriate mood and affect with 4 normal attention span and concentration), 398- 403 (alert and oriented; given lack of support of a 5 bipolar diagnosis, a trial of an SSRI as monotherapy recommended), 1236-240 (reported anxiety
6 but was found to be oriented with appropriate mood and affect, and normal insight and 7 judgment), 1297-98 (attentive and oriented with appropriate recall and fund of knowledge; recent 8 and remote memory appear intact), 1340 (appropriate mood and affect with normal insight and 9 judgment),1359 (appropriate affect with intact memory for recent and remote events), 1370 10 (normal affect and intact memory for recent and remote events), 1383 (reported feeling of 11 depression but had appropriate affect with intact memory), 1420 (normal orientation, memory, 12 judgment, attention span, and concentration). 13 The ALJ acknowledged Plaintiff’s Wechsler Memory Scale (“WMS-IV”) test scores 14 were between the 3rd and 10th percentile during Dr. Widlan’s evaluation and that his delayed
15 recall was impaired, however, the ALJ found Plaintiff performed serial sevens and serial threes 16 subtraction without error and that his Trail Making test scores were in the non-impaired range. 17 AR at 54 (citing id. at 424-28). 18 Plaintiff takes issue with the ALJ’s determination that Dr. Widlan’s findings are 19 inconsistent with results from other mental status examinations, arguing Dr. Widlan performed a 20 more detailed assessment of Plaintiff than the other examinations. (Dkt. # 14 at 7.) However, 21 despite Plaintiff’s assertion, the ALJ could reasonably consider the numerous other mental status 22 evidence in the record and find them inconsistent with the severity of Dr. Widlan’s opinion. 23 Plaintiff also argues Dr. Widlan’s opinion was endorsed by Dr. Christmas Covell, Ph.D. 1 However, the ALJ also gave Dr. Covell’s opinion only some weight (AR at 53-54) for similar 2 reasons, and Plaintiff did not challenge Dr. Covell’s opinion. Plaintiff further asserts that while 3 the ALJ found there was no acceptable medical source diagnosis of a medically determinable 4 impairment regarding Plaintiff’s alleged memory loss, Dr. Kenderdine noted memory 5 deficiencies. Although one doctor noted memory issues, the ALJ could reasonably consider the
6 numerous other medical records indicating Plaintiff’s memory was normal and intact. Further, as 7 discussed below, the ALJ properly discounted Dr. Kenderdine’s opinion. Although Plaintiff 8 proposes a different interpretation of the evidence, the ALJ’s interpretation is rational and 9 therefore must be upheld. Thomas, 278 F.3d at 954. 10 The ALJ also found Dr. Widlan’s opinion was inconsistent with Plaintiff’s activities of 11 daily living. The ALJ noted Plaintiff acknowledged using public transportation, going to church, 12 and shopping. AR at 54 (citing id. at 259-66; 283-90). Plaintiff argues his activities are limited 13 and do not indicate an ability to engaged in work to the degree of an 8 hour 5 days a week work 14 schedule. (Dkt. # 10 at 13.) However, “[a] conflict between a treating physician’s opinion and a
15 claimant’s activity level is a … legitimate reason for rejecting the opinion.” See Ford v. Saul, 16 950 F.3d 1141, 1155 (9th Cir. 2020) (citing Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir 17 2001)). The ALJ could reasonably find the severity of Dr. Widlan’s opinion was inconsistent 18 with Plaintiff’s activities of daily living. 19 The ALJ further found Plaintiff was able to interact at the hearing without apparent 20 difficulty. AR at 54. An ALJ’s reliance on personal observations of a claimant at the hearing 21 “has been condemned as ‘sit and squirm’ jurisprudence.” Perminter v. Heckler, 765 F.2d 870, 22 872 (9th Cir. 1985) (citation omitted). The practice has generally been met with disapproval and 23 may not form the sole basis for discounting a claimant’s symptom claims. Orn v. Astrue, 495 1 F.3d 625, 639 (9th Cir. 2007). Here, the ALJ’s observations of Plaintiff did not form the sole 2 basis for her determination. Furthermore, even if this finding is error, the error would be 3 harmless because the ALJ provided additional specific and legitimate reasons, supported by 4 substantial evidence, for discounting Dr. Widlan’s opinion. See Carmickle., 533 F.3d at 1162-63. 5 Accordingly, the ALJ did not err in discounting portions of Dr. Widlan’s opinion.
6 b. Shawn Kenderdine, Ph.D. 7 Dr. Kenderdine conducted a mental evaluation of Plaintiff in October 2016. AR at 366- 8 74. Dr. Kenderdine opined that Plaintiff has moderate limitations in understanding, 9 remembering, and persisting in tasks by followed detailed instructions, performing activities 10 within a schedule, maintaining regular attendance, being punctual within customary tolerances 11 without special supervision, learning new tasks, communicating and performing effectively in a 12 work setting, maintaining appropriate behavior in a work setting, and setting realistic goals and 13 planning independently. Id. at 368. 14 The ALJ assigned Dr. Kenderdine’s opinion little or no weight. AR at 55. The ALJ found
15 his assessment contained internal inconsistencies. Id. at 54-55. Specifically, the ALJ found that 16 while Dr. Kenderdine opined Plaintiff was moderately limited in maintaining regular attendance 17 and performing within a schedule, he also opined that Plaintiff has either mild or no limitations 18 in his ability to complete a normal workday or workweek. Id. at 55 (citing id. at 368). The ALJ 19 also found the fact that Plaintiff drove and was a full-time caregiver for his mother requires 20 significant attention and concentration that is inconsistent with Dr. Kenderdine’s opined 21 limitations regarding Plaintiff’s off-task behavior. Id. (citing id. at 419). The ALJ further 22 discounted Dr. Kenderdine’s opinion for the reasons outlined in her assessment of Dr. Widlan’s 23 opinion. Id. 1 Plaintiff argues the inconsistencies identified by the ALJ reflect opinions regarding 2 different work activity, specifically being interrupted at work due to mental conditions and being 3 able to perform within a schedule or to maintain attendance. (Dkt. # 10 at 11.) As with the 4 arguments presented against the ALJ’s assessment of Dr. Widlan’s opinion, Plaintiff merely 5 proposes a different interpretation of the evidence. The ALJ could reasonably find that Dr.
6 Kenderdine’s opinion that Plaintiff would only have mild or no limitations in completing a 7 workday was inconsistent with the opinion that Plaintiff was moderately limited in his ability to 8 perform within a schedule. The ALJ’s conclusion must be upheld. Thomas, 278 F.3d at 954. 9 As discussed above, inconsistencies between a medical opinion and Plaintiff’s activities 10 of daily living is a specific and legitimate reason to discount a medical opinion. In June 2017, 11 Plaintiff reported he was a full-time caregiver for his mother, drove, watched TV, did computer 12 activities on his cellphone, enjoyed writing music, took care of his mother’s dog, and was able to 13 handle personal hygiene. AR at 419. Plaintiff argues a closer reading of this evidence indicates 14 that he does not actually do that much with regard to his mother and that she does not want him
15 to cook. (Dkt. # 10 at 11.) Plaintiff asserts that the only significant activities he performs is 16 cleaning and taking care of his mother’s dog. (Id.) 17 Here, Plaintiff himself reported that he was a fulltime caregiver for his mother, and 18 although Plaintiff now proposes a new interpretation of Plaintiff’s reported activities, the ALJ’s 19 interpretation was rational. However, even if Plaintiff’s activities were limited to just cleaning 20 and caring for his mother’s dog, the ALJ could reasonably find those activities are inconsistent 21 with Dr. Kenderdine’s opined limitations. Regardless, even if this was an insufficient reason to 22 discount the opinion, any error is harmless due to the other reasons provided by the ALJ. 23 Carmickle., 533 F.3d at 1162-63. 1 Lastly, it was also a specific and legitimate reason to discount Dr. Kenderdine’s opinion 2 due to the inconsistencies with the largely unremarkable mental status evidence in the record, 3 just as the ALJ did with Dr. Widlan’s opinion. The ALJ cited numerous records indicating 4 Plaintiff had mostly normal mental status examinations, such as being largely alert, oriented, 5 with normal mood and affect, and being cooperative. The ALJ could reasonably find the severity
6 of Dr. Kenderdine’s opinion was inconsistent with the other mental status examinations. 7 Accordingly, the ALJ provided specific and legitimate reasons, supported by substantial 8 evidence, for discounting the medical opinion evidence. 9 B. The ALJ Did Not Err in Assessing the Lay Witness Testimony 10 Plaintiff’s mother filled out a Function Report on Plaintiff’s behalf. AR at 233-40. An 11 ALJ may discount lay witness testimony by giving a germane reason. Diedrich v. Berryhill, 874 12 F.3d 634, 640 (9th Cir. 2017). Plaintiff’s mother reported Plaintiff has back problems, 13 depression, does not like being around a lot of people, and can be hard to get along with when he 14 is not on his medications. AR at 233. She reported Plaintiff was homeless but took care of her
15 dog when he was around. Id. at 234. She further reported Plaintiff could prepare his own meals 16 but did not know how long it takes him to do so. Id. at 235. She reported Plaintiff walks, uses 17 public transportation, and goes to church but does not drive. Id. at 236-37. 18 The ALJ considered the lay witness opinion and accorded it partial weight because it was 19 only partially consistent with the evidence. AR at 56. The ALJ discounted the statements due to 20 the inherit subjectivity of the opinion, the lack of medically acceptable standards, and the partial 21 inconsistency with the objective medical evidence, including opinion evidence from acceptable 22 medical sources that indicate Plaintiff is more functional than his mother opined. Id. 23 Testimony from “other non-medical sources,” such as friends and family members may not be disregarded simply because of their relationship to the claimant or because of any 1 potential financial interest in the claimant’s disability benefits. See Smolen v. Chater, 80 F.3d 2 1273, 1289 (9th Cir. 1996) (holding that the ALJ erred by rejecting the lay witness testimony 3 based upon the witness’ close relationship with the claimant). Therefore, the fact that Plaintiff’s 4 mother has a personal relationship with him and therefore her opinion might be inherently 5 subjective was not a germane reason for discounting her statements.
6 Similarly, the lack of training in making exacting observations was not a germane reason 7 for discounting her statements. In providing her statement, Plaintiff’s mother was not presenting 8 expert opinion or medical findings as to the extent of Plaintiff’s disability or ability to work. 9 Rather, Plaintiff’s mother reported her own respective observations of Plaintiff’s limitations. 10 However, partial inconsistency with the objective medical evidence was a germane 11 reason to discount Plaintiff’s mother’s statements. Lay witness testimony may not be rejected on 12 the grounds that it lacks support from medical evidence, but it may be rejected if contradicted by 13 medical or other evidence. Diedrich, 874 F.3d at 640; Bayliss, 427 F.3d at 1218. As discussed 14 above, the ALJ cited numerous medical records showing Plaintiff’s limitations are not as severe
15 as alleged. Accordingly, the ALJ provided a germane reason to discount Plaintiff’s mother’s 16 statements. 17 Further, even if inconsistency with the objective medical evidence was not a germane 18 reason for discounting the lay witness testimony, any error is harmless because the ALJ’s 19 reasons for discounting Plaintiff’s testimony apply to his mother’s similar statements. See 20 Molina, 674 F.3d at 1117 (“Where lay witness testimony does not describe any limitations not 21 already described by the claimant, and the ALJ’s well-supported reasons for rejecting the 22 claimant’s testimony apply equally well to the lay witness testimony, … the ALJ’s failure to 23 discuss the lay witness testimony [is not] prejudicial per se.”); see also Valentine v. Comm’r of 1 Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (if an ALJ gave clear and convincing 2 reasons for rejecting the claimant’s testimony, those reasons are germane to similar testimony by 3 a lay witness). Here, Plaintiff’s mother described the same limitations as alleged by Plaintiff and 4 the ALJ gave clear and convincing reasons for discounting his testimony. Accordingly, any error 5 in discounting the lay witness statements would be harmless. Carmickle., 533 F.3d at 1162-63
6 C. The ALJ Did Not Err in Finding Plaintiff has Past Relevant Work as a Cleaner/Housekeeper 7 Plaintiff bears the burden at step four of demonstrating that he can no longer perform his 8 past relevant work. 20 C.F.R. § 416.920(e)-(f); Barnhart v. Thomas, 540 U.S. 20, 25 (2003). Past 9 relevant work is work generally: (1) performed within the past fifteen years, (2) constituting 10 substantial gainful activity (“SGA”), and (3) lasting long enough for the individual to have 11 learned how to perform the work. See 20 C.F.R. § 416.965. Substantial gainful activity is work 12 activity that “involves doing significant physical or mental activities” on a full-or part-time basis, 13 and “is the kind of work usually done for pay or profit.” 20 C.F.R. § 416.972. Generally, if a 14 claimant works for substantial earnings as described in the regulations, the work is found to be 15 substantial gainful activity. 20 C.F.R. § 416.974(a). However, if average monthly earnings are 16 less than the amount described in the regulations, it is presumed that a claimant has not engaged 17 in substantial gainful activity. 20 C.F.R. § 416.974(b)(3). 18 At the hearing, Plaintiff testified that he most recently worked for approximately one 19 month in a custodial position that involved mopping, sweeping, and cleaning windows through a 20 temporary employment agency. AR at 79. The VE found this position to be that of a 21 cleaner/housekeeper, DOT code 323.687-014, and found that someone with Plaintiff’s 22 limitations could perform that occupation. Id. at 97-99. Based on the VE’s testimony, the ALJ 23 found Plaintiff was capable of performing past relevant work as a cleaner/housekeeper. Id. at 56. 1 Plaintiff contends the ALJ improperly found Plaintiff could do past relevant work. (Dkt. 2 # 10 at 4.) He argues that he did not identify the cleaner/housekeeper position as one of his past 3 jobs, rather he identified his past work as warehouse worker, dishwasher, and driver’s helper on 4 his work history report. (Id.) However, at the hearing, Plaintiff testified that he had worked in a 5 custodial type job mopping, sweeping, and cleaning windows. Further, Plaintiff has not
6 identified how his former employment in custodial work is distinct from the cleaner/housekeeper 7 position. The Court finds the ALJ could rely on the VE’s expertise and testimony to determine 8 that Plaintiff’s past work classifies as a cleaner/housekeeper position. 9 Plaintiff also asserts his past work does not meet the SGA element.5 (Id. at 4-5.) Although 10 there is no evidence in the record regarding Plaintiff’s most recent custodial work, Plaintiff notes 11 he earned only $3,110.48 in 2013 and $3,747.18 in 2017, whereas the SGA level for 2013 was 12 $12,480 and $14,040 for 2017. (Id. at 5 (citing Program Operations Manual Systems (“POMS”) 13 10501.015).) The Commissioner argues that although earnings are presumptive, they are not 14 conclusive. (Dkt. # 13 at 8-9.) The Commissioner generally asserts the ALJ could find the SGA
15 element satisfied because Plaintiff testified that he worked for a month. (Id. at 9.) 16 Here, the Court finds the ALJ erred in finding Plaintiff’s past custodial work rose to the 17 level of SGA. In the ALJ’s decision, the ALJ concluded that Plaintiff’s “warehouse worker, 18 dishwasher/kitchen helper, and cleaner/housekeeper jobs were performed at the substantial 19 gainful activity level for a sufficient duration to achieve average performance.” AR at 56. 20 However, the ALJ did not specifically address Plaintiff’s earnings from his cleaner/housekeeper 21
5 Plaintiff also appears to imply that because his past work was only for a short duration, it is not past 22 relevant work, although he specifically notes that the only issue raised is whether the SGA element has been satisfied and he does not argue about the length of his employment. (Dkt. # 10 at 5.) As noted by the 23 Commissioner, the cleaner/housekeep has a SVP of 2 and the time required to learn a job with SVP 2 is up to and including 1 month. DOT 323.687-014. The Court finds the length of Plaintiff’s employment satisfies the duration element based on Plaintiff’s testimony that he worked for approximately one month. 1 position and did not question Plaintiff about his earnings at the hearing. Based on Plaintiff’s past 2 earnings that fall far below the SGA level, and that his custodial work was through a temporary 3 agency and only lasted one month, it is unlikely Plaintiff attained SGA earnings. 4 However, even though the ALJ erred in finding Plaintiff could perform past relevant 5 work at step four, the ALJ made an alternative finding at step five that Plaintiff was not disabled.
6 Accordingly, any error is harmless. Tommasetti v. Astrue, 533 F.3d 1035, 1042-43 (9th Cir. 7 2008) (“Although the ALJ’s step four determination constitutes error, it is harmless in light of 8 the ALJ’s alternative finding at step five.”). 9 D. The Did Not Err at Step 5 10 At step five, the ALJ found there were other jobs existing in the national economy that 11 Plaintiff was able to perform. AR at 57. The ALJ relied on the hearing VE’s testimony regarding 12 available job numbers for an individual with Plaintiff’s age, education, work experience, and 13 RFC. Id. The VE testified that the following occupations could be performed in the national 14 economy: assembler, electrical accessory, DOT code 729.687-010 (50,000); small products
15 assembler, DOT code 706.684-022 (50,000); production assembler, DOT code 706.687-010 16 (30,000). Id. at 96-99. All three jobs have a reasoning level of 2. Id. Plaintiff argues the job 17 numbers are unsubstantiated for several reasons, each is discussed below. 18 1. Subpoena Duces Tecum 19 Plaintiff first takes issue with the denial of his request that the ALJ issue a subpoena 20 requiring the VE to bring the information that he would rely upon for his job numbers to the 21 hearing. AR at 41-42, 309-11. Plaintiff argues that without that information, he was unable to 22 meaningfully cross examine the VE. (Dkt. # 10 at 6.) 23 1 In federal court, “an expert witness must produce all data she has considered in reaching 2 her conclusions,” but “no similar requirement applies in SSA hearings.” Biestek v. Berrywill, 139 3 S. Ct. 1148, 1154 (2019) (citing Fed. R. Civ. P. 26(a)(2)(B)). Further, a VE’s recognized 4 expertise provides the necessary foundation for his or her testimony” and “no additional 5 foundation is required.” Bayliss, 427 F.3d at 1281; Ford, 950 F.3d at 1159 (where the expert is
6 qualified and presents cogent testimony that does not conflict with other evidence in the record, 7 “the expert’s testimony still will clear (even handily so) the more-than-a-mere-scintilla 8 threshold” even when the expert declines to provide the underlying data) (citing Biestek, 139 S. 9 Ct. at 1157). Because there is no requirement for an ALJ to grant a claimant’s request for a 10 subpoena, and Plaintiff has not shown that it was reasonably necessary or that the ALJ abused 11 her discretion in denying Plaintiff’s request, the Court finds the ALJ did not err. 20 C.F.R. § 12 416.1450(c). 13 2. VE Moisan 14 Plaintiff argues the hearing VE testified that the jobs of assembler, electrical accessory
15 and small products assembler had a combination of 50,000 jobs nationally but was unable to 16 provide job numbers for each job individually. (Dkt. # 10 at 6.) Plaintiff asserts that as a result, 17 he hired an independent VE, Mr. Mosian, after the ALJ issued her decision. (Id.); AR at 27-29. 18 Mr. Moisan found that for the position of assembler, electrical accessory, there were only 6,950 19 jobs nationally. AR at 31. He also found there were only 747 jobs for the position of assembler 20 and 681 jobs for the position of production assembler. Id. at 33, 37. Plaintiff asserts Mr. 21 Moisan’s job numbers are more accurate than the hearing VE’s job numbers because he provided 22 documentation regarding his testimony. 23 1 Pursuant to Brewes v. Comm’r of SSA, 682 F.3d 1157 (9th Cir. 2012), the Court 2 considered the VE’s declaration submitted by Plaintiff after the hearing in considering whether 3 or not the Commissioner’s decision was supported by substantial evidence. Although Mr. 4 Moisan provided a different opinion regarding job numbers, his declaration merely raises a 5 question of fact regarding the job numbers. As noted above, the hearing VE was not required to
6 bring documentation underlying his opinion. The hearing VE is qualified and presented cogent 7 testimony and therefore his testimony constitutes substantial evidence. Review of an ALJ’s fact- 8 finding for substantial evidence is deferential and the inquiry defers to the ALJ. Ford, 950 F.3d. 9 at 1159 (citing Biestek, 139 S. Ct. at 1157). 10 Plaintiff also asserts the jobs identified by the hearing VE are inconsistent with the RFC. 11 Plaintiff cites to Mr. Moisan’s opinion that the jobs require the ability to do detailed work, which 12 he found to be inconsistent with the RFC’s restriction to simple routine tasks and the ability to 13 adapt to only simple workplace changes. (Dkt. # 10 at 8.) Plaintiff further argues that the jobs 14 identified at the hearing required a reasoning level of 2, which the DOT indicates involve the
15 ability to “apply commonsense understanding to carry out detailed but uninvolved written or oral 16 instructions. Deal with problems involving a few concrete variables in or from standardized 17 situations.” (Id. at 7.) Plaintiff asserts doing detailed work is not simple and routine. (Id. at 8.) 18 The Commissioner does not dispute the DOT’s definition of reasoning level 2. (Dkt. # 13 19 at 11.) Rather, the Commissioner cites to Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 20 1004, fn. 6 (9th Cir. 2015), that recognized unpublished Ninth Circuit decisions and decisions 21 from other circuits have concluded that a RFC limitation to simple or repetitive tasks is 22 consistent with level 2 reasoning, such as Abrew v. Astrue, 303 Fed.Appx. 567, 569 (9th Cir. 23 2008) (unpublished) (no conflict at step five in finding a claimant could complete only simple 1 tasks and the VE’s testimony that claimant could perform jobs at reasoning level 2). (Dkt. # 13.) 2 The Commissioner also notes several district courts have reached the same conclusion. (Id. 3 (citing Coleman v. Astrue, 10-CV-5641, available at 2011 WL 781930 (C.D.Cal. Feb. 28, 2011) 4 (“the weight of prevailing authority precludes a finding of any inconsistency between a 5 reasoning level of two and a mere limitation to simple, repetitive tasks, or unskilled work”);
6 Meissl v. Barnhart , 404 F.Supp.2d 981, 983-85 (C.D. Cal. 2005) (finding limitation to simple 7 and repetitive tasks to be closer to level 2 reasoning)).) 8 Here, the Court is persuaded that a RFC limitation to simple routine tasks is not 9 inconsistent with the DOT’s definition of reasoning level 2 that includes the ability to understand 10 and carry out detailed work. The DOT specifically defines reasoning level 2 jobs as requiring 11 employees to carry out detailed but uninvolved instructions. Further, the RFC determination was 12 supported by substantial evidence and the VE testified that his testimony was consistent with the 13 DOT. AR at 99. The ALJ could therefore properly rely on the VE’s testimony. 14 Plaintiff also argues that the RFC limitation to interacting only occasionally with
15 supervisors is inconsistent with the identified jobs. (Dkt. # 10 at 8.) Plaintiff asserts that 16 Appendix C: Components of the Definition Trailer of the Dictionary of Occupational Titles 17 defines occasionally as an activity or condition that exists up to one third of the time. (Id.) 18 Plaintiff argues successful employment would be impossible because two thirds of the time that a 19 supervisor tried to interact with Plaintiff, he or she would be ignored or rejected in some manner. 20 (Id.) The Commissioner argues that “occasionally” means “occurring from very little to up to 21 one-third of the time,” and therefore the ALJ could reasonably find Plaintiff could tolerate 22 interacting with a supervisor for up to one third of a workday, not one third of all attempted 23 interactions. (Dkt. # 13 at 12 (citing SSR 83-10, available at 1983 WL31251, *5).) 1 Although Plaintiff asserts that a limitation to only occasional interaction with a supervisor 2 would preclude employment, he cites no authority in support of his argument. Rather, he 3 generally argues that limiting a supervisor’s interaction to one third of the day would be an 4 “intolerable” situation. (Dkt. # 14 at 4.) However, the VE testified that Plaintiff could perform 5 the identified jobs, with the limitation to only occasional interaction with supervisors, and the
6 VE’s testimony is substantial evidence that the ALJ could reasonably rely on. Accordingly, the 7 ALJ did not err in her step five determination. 8 V. CONCLUSION 9 For the foregoing reasons, the Commissioner’s final decision is AFFIRMED and this 10 case is DISMISSED with prejudice. 11 Dated this 28th day of August, 2020. 12 13 A 14 MICHELLE L. PETERSON United States Magistrate Judge 15
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