1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Patricia A. Polk, No. CV-19-04705-PHX-JAT
10 Plaintiff, ORDER
11 v.
12 Commissioner of Social Security Administration, 13 14 Defendant. 15 Pending before the Court is Patricia A. Polk’s (“Claimant”) appeal from the Social 16 Security Commissioner’s (“Commissioner”) denial of her application for a period of 17 disability and disability insurance benefits under Title II of the Social Security Act, 42 18 U.S.C. §§ 401–434. (Doc. 1). The appeal is fully briefed. (Doc. 15; Doc. 18; Doc. 21). The 19 Court now rules on the appeal. 20 I. BACKGROUND 21 Claimant filed an application for disability insurance benefits on August 4, 2015. 22 (Doc. 11-6 at 2–3 (application); Doc. 11-4 at 18). Claimant’s application was denied at the 23 initial stage, (id. at 14), upon reconsideration, (id. at 30), and by the Administrative Law 24 Judge (“ALJ”) after a hearing, (Doc. 11-3 at 27). Her request for review of the ALJ’s 25 decision was denied by the Appeals Council. (Id. at 2). Claimant then sought review in this 26 Court. (Doc. 1). 27 To qualify for social security benefits, a claimant must show she “is under a 28 disability.” 42 U.S.C. § 423(a)(1)(E). If she suffers from a medically determinable physical -1- 1 or mental impairment that prevents her from engaging “in any substantial gainful activity,” 2 the claimant is disabled. Id. § 423(d)(1)–(2). The Social Security Administration has 3 created a five-step process for an ALJ to determine whether the claimant is disabled. 4 20 C.F.R. § 404.1520(a)(1). Each step is potentially dispositive. See id. § 404.1520(a)(4). 5 The ALJ denied Claimant social security benefits because he determined that, 6 despite her limitations, she could do unskilled work at all exertional levels, and was 7 therefore not disabled within the meaning of the Social Security Act. (Doc. 11-3 at 21, 26– 8 27). At step one, he determined that she was not engaged in substantial gainful activity. 9 (Id. at 19). At step two, he found Claimant’s sleep apnea, obesity, and unspecified cognitive 10 disorder to be non-severe, but proceeded to step three because he found her seizures, 11 depression, and anxiety to be severe impairments. (Id.). 12 At step three, the ALJ found that Claimant’s impairments did not meet or medically 13 equal an impairment listed “in 20 CFR Part 404, Subpart P, Appendix 1,” and so proceeded 14 to the residual functional capacity (“RFC”) determination. (Id. at 20–26). In determining 15 Claimant’s RFC, the ALJ discounted her subjective symptom testimony and the opinions 16 of her treating providers, which collectively indicated multiple marked mental limitations. 17 (Id. at 21–23 (symptom testimony); id. at 24–25 (medical source statements)). He relied 18 instead on the opinions of state agency psychologists who opined that Claimant had only 19 moderate limitations and was able to perform unskilled work. (Doc. 11-3 at 25–26 (citing 20 Doc. 11-4 at 11–14, 27–28 (psychologist opinions))). The ALJ found that Claimant had the 21 RFC to perform simple, unskilled work at all exertional levels, subject to some 22 environmental limitations such as avoiding ladders and scaffolds. (Doc. 11-3 at 21). 23 At step four, the ALJ found that, because of her RFC for simple, unskilled work, 24 Claimant could no longer perform her past relevant work as a registration clerk, which is a 25 semi-skilled position, and proceeded to step five. (Id. at 26). At step five, considering 26 Claimant’s age, education, and RFC for unskilled work, and using the Medical-Vocational 27 Guidelines as a framework, the ALJ found that Claimant could perform jobs that exist in 28 significant numbers in the national economy and was therefore not disabled. (Id. at 26–27). 1 II. LEGAL STANDARD 2 An ALJ’s decision to deny benefits may be reversed only where “it is not supported 3 by substantial evidence or it is based on legal error.” Magallanes v. Bowen, 881 F.2d 747, 4 750 (9th Cir. 1989) (citations omitted). Substantial evidence means “such relevant evidence 5 as a reasonable mind might accept as adequate to support a conclusion.” Desrosiers v. Sec’y 6 of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988) (citation omitted). Where 7 the evidence admits of more than one rational interpretation the court will uphold the ALJ’s 8 conclusion. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). A reviewing court 9 must consider “the record as a whole, weighing both the evidence that supports and detracts 10 from the [ALJ’s] conclusion,” Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992), 11 and “may not affirm simply by isolating a ‘specific quantum of supporting evidence,’” 12 Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citation omitted). 13 The court may affirm the ALJ’s decision only on grounds upon which the ALJ 14 actually relied. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). But reviewing courts “are 15 not deprived of [their] faculties for drawing specific and legitimate inferences from the 16 ALJ’s opinion.” Magallanes, 881 F.2d at 755. Thus, even where an ALJ’s reasoning is less 17 than ideally clear, the court “must uphold [the decision] if the [ALJ’s] path may reasonably 18 be discerned.” Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012) (internal quotation 19 marks and citation omitted). 20 III. ANALYSIS 21 Claimant argues that the ALJ erred in improperly weighing the opinion of 22 Claimant’s treating psychiatrist, in improperly evaluating Claimant’s residual functional 23 capacity, and in declining to use vocational expert testimony in determining whether 24 Claimant could make an adjustment to other work. (Doc. 15). The Court takes each issue 25 in turn. 26 a. Weight of Opinion Evidence 27 Claimant first contends that the ALJ erred in giving little weight to the opinion of 28 Claimant’s treating provider, Dr. Lauro Amezcua-Patino. (Doc. 15 at 12). In general, the 1 opinion of a treating source is entitled to more weight than that of an examining source, 2 which in turn is entitled to more weight than that of a non-examining source. 20 C.F.R. 3 § 404.1527(c)(1)–(2); see Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).1 But a treating 4 physician’s opinion is not necessarily conclusive. Thomas v. Barnhart, 278 F.3d 947, 956 5 (9th Cir. 2002). If a treating physician’s opinion is contradicted by another physician’s 6 opinion, an ALJ may reject it “by providing specific and legitimate reasons that are 7 supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 8 2005) (citation omitted). “The ALJ can meet this burden by setting out a detailed and 9 thorough summary of the facts and conflicting clinical evidence, stating his interpretation 10 thereof, and making findings.” Magallanes, 881 F.2d at 751 (citation omitted). The ALJ 11 did not err in discounting Dr. Amezcua-Patino’s opinion, which was contradicted by the 12 opinions of the state agency psychologists. (Compare Doc. 11-10 at 156 (asserting nine 13 marked mental limitations), with Doc. 11-4 at 11–13, 27–28 (asserting no marked mental 14 limitations)). Therefore, the ALJ only needed specific and legitimate reasons, supported by 15 substantial evidence, to discount Dr. Amezcua-Patino’s opinion. Bayliss, 427 F.3d at 1216; 16 Bortolamedi v. Colvin, No. 217CV01473JADBNW, 2019 WL 4454510, at *4 (D. Nev. 17 Aug. 27, 2019), report and recommendation adopted, No. 217CV01473JADBNW, 2019 18 WL 4450428 (D. Nev. Sept. 17, 2019); see also SSR 96-6p, 1996 WL 374180, at *3 (July 19 2, 1996) (“In appropriate circumstances, opinions from State agency medical and 20 psychological consultants and other program physicians and psychologists may be entitled 21 to greater weight than the opinions of treating or examining sources.”). 22 The ALJ had specific and legitimate reasons to discount Dr. Amezcua-Patino’s 23 opinion. The ALJ described the results of Dr. Amezcua-Patino’s mental status 24 examinations of Claimant and found that “his treatment records are inconsistent with his 25 opinion.” (Doc. 11-3 at 22–24). In fact, mental status exams conducted by Dr. Amezcua-
26 1 Psychologists, such as Dr. Amezcua-Patino, are considered acceptable medical sources for the purposes of weighing opinion evidence. See 20 C.F.R. § 404.1513(a)(2) (2017) 27 (including licensed or certified psychologists as an “acceptable medical source”); McAllister v. Sullivan, 888 F.2d 599, 602 n.3 (9th Cir. 1989) (treating a psychologist as a 28 “physician”). 1 Patino’s office described Claimant as having “no signs of cognitive difficulty” as well as 2 intact memory, judgment, and insight on no fewer than eighteen occasions between August 3 2013 and September 2016. (Doc. 11-9 at 6–8, 10–11, 13–14, 16, 18–20, 21–22, 24–26, 27– 4 29, 31–33, 36–39, 41–44, 188–90, 192–94; Doc. 11-10 at 74–76, 78–80, 82–84, 148–50; 5 Doc. 11-11 at 14–16). Yet, Dr. Amezcua-Patino described Claimant in his opinion as 6 having “difficulty thinking or concentrating” with moderate limitations in “[r]emembering 7 locations and work-like procedures” and “understand[ing] and remember[ing] one-to-two 8 step instructions” and marked limitations in “understand[ing] and remember[ing] detailed 9 instructions,” “mak[ing] simple work-related decisions,” and “carry[ing] out detailed 10 instructions.” (Doc. 11-10 at 154, 156). Indeed, these limitations do not appear anywhere 11 in Dr. Amezcua-Patino’s treatment notes. (See, e.g., Doc. 11-8 at 99–100 (stating “exam 12 reveal[ed] no mental status abnormalities”)). Instead, the treatment notes suggest that 13 Claimant’s condition is improving. (Doc. 11-10 at 76 (“[S]tability seems to be happening 14 as evidenced by a decreasing intensity of symptoms.”)). The inconsistency between Dr. 15 Amezcua-Patino’s opinion and treatment notes and the inconsistency between that opinion 16 and the objective medical evidence, including the mental status exams, constitute specific 17 and legitimate reasons to discount the opinion. See Valentine v. Comm’r of Soc. Sec. 18 Admin., 574 F.3d 685, 692–93 (9th Cir. 2009); Tommasetti, 533 F.3d at 1041; Hogan v. 19 Apfel, 239 F.3d 958, 961 (9th Cir. 2001). 20 The ALJ’s finding is supported by substantial evidence, including the multitude of 21 times Dr. Amezcua-Patino’s office described Claimant as having “no signs of cognitive 22 difficulty” as well as intact memory, judgment, and insight. Valentine, 574 F.3d at 692–93. 23 The duty to resolve conflicts based on the medical evidence is left to the ALJ, and this 24 Court must uphold the ALJ’s determination “where the evidence is susceptible to more 25 than one rational interpretation.” Hutcheson v. Comm’r of Soc. Sec., No. 1:16-CV-00366- 26 SKO, 2017 WL 3839956, at *7 (E.D. Cal. Sept. 1, 2017) (quoting Andrews v. Shalala, 53 27 F.3d 1035, 1039–40 (9th Cir. 1995)). It was the ALJ’s responsibility to determine if there 28 was a conflict between Dr. Amezcua-Patino’s treatment notes and opinion, and if so, to 1 resolve that conflict. See id. The ALJ’s findings of inconsistency between the opinion and 2 both Dr. Amezcua-Patino’s treatment notes and the objective medical evidence constitute 3 specific and legitimate reasons to discount his opinion. 4 The ALJ did not “cherry-pick” from the record in rejecting Dr. Amezcua-Patino’s 5 opinion, as Claimant contends, (Doc. 15 at 20), but instead pointed to a significant number 6 of different times over several years that the treatment notes indicated “no signs of 7 cognitive difficulty.” Additionally, consistent exam results showing “no signs of cognitive 8 difficulty” over the course of more than three years cannot simply be described as 9 “temporary improvement,” as Claimant asserts. (Doc. 15 at 18). In support of her argument, 10 Claimant cites to Dr. Amezcua-Patino’s reliance on Claimant’s subjective symptoms, 11 which were discredited. (Id. at 13–15). In discrediting these symptoms, the ALJ found 12 Claimant’s “statements concerning [their] intensity, persistence and limiting effects” to be 13 “not entirely consistent with the medical evidence and other evidence in the record.” 14 (Doc. 11-3 at 21–22). Claimant has not asserted that the ALJ’s credibility determination 15 was erroneous, (see Doc. 1; Doc. 15; Doc. 21), and her discredited symptoms cannot 16 support Dr. Amezcua-Patino’s opinion, see Morgan v. Comm’r of Soc. Sec. Admin., 169 17 F.3d 595, 602 (9th Cir. 1999). Indeed, the ALJ found that Claimant’s daily activities, 18 including caring for a young child, were inconsistent with the marked limitations 19 Dr. Amezcua-Patino diagnosed. (See Doc. 11-3 at 22, 24). That finding also constitutes a 20 specific and legitimate reason for discounting Dr. Amezcua-Patino’s opinion. See 21 Lindquist v. Colvin, 588 F. App’x 544, 546 (9th Cir. 2014). 22 Claimant argues that other medical opinions substantiate Dr. Amezcua-Patino’s 23 opinion. (Doc. 15 at 15–16). Claimant points to the opinions of Dr. Ruddy and PA Kiraly. 24 (Id.). But Claimant does not specifically challenge the ALJ’s decision to discount either 25 Dr. Ruddy’s opinion or PA Kiraly’s opinion. (See id.). And though it appears that Claimant 26 asserts that she has not conceded either issue, (Doc. 21 at 7), Claimant only makes passing 27 reference to the ALJ’s consideration of these opinions within her argument that the ALJ 28 erred by discounting Dr. Amezcua-Patino’s opinion, (Doc. 15 at 15–16). 1 Claimant did not properly raise any issue related to the weight the ALJ assigned the 2 opinions of either Dr. Ruddy or PA Kiraly. (Doc. 15). Claimant’s first assignment of error 3 reads: “Whether the Administrative Law Judge Failed to Properly Evaluate the Opinion of 4 [Claimant’s] Treating Psychiatrist.” (Id. at 1). The heading for that issue states: “The ALJ 5 Failed to Properly Evaluate the Opinion of [Claimant’s] Treating Psychiatrist, Dr. 6 Amezcua-Patino.” (Id. at 12). Any reference to Dr. Ruddy or PA Kiraly is related only to 7 Claimant’s assertion that their opinions support Dr. Amezcua-Patino’s opinion. (Id. at 15– 8 16). 9 The Court made clear that each parties’ brief must include “[a] statement of the issue 10 presented for review,” and the Court warned that its review would be limited “only [to] 11 issues which are argued specifically and distinctly in a party’s opening brief.” (Doc. 5 at 12 2–3 (quoting Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994)). As such, Claimant 13 waived any challenge to the ALJ’s decision to discredit the opinions of Dr. Ruddy or PA 14 Kiraly as to Claimant’s mental impairments. See Matthew D. v. Comm’r of Soc. Sec., No. 15 2:19-CV-0015-TOR, 2019 WL 6617399, at *5 (E.D. Wash. Dec. 5, 2019); see also Hibbs 16 v. Dep’t of Human Res., 273 F.3d 844, 873 n.34 (9th Cir. 2001) (finding an allegation of 17 error was “too undeveloped to be capable of assessment”). Accordingly, whether the 18 discredited opinions of Dr. Ruddy or PA Kiraly support Dr. Amezcua-Patino’s opinion is 19 irrelevant to whether the ALJ properly discredited Dr. Amezcua-Patino’s opinion. 20 Nonetheless, even if the Court reaches the merits of the ALJ’s decision to discredit the 21 mental-impairment opinions of Dr. Ruddy or PA Kiraly, the Court will affirm as there was 22 substantial evidence supporting the ALJ’s decision to discredit each source’s opinion. 23 First, Dr. Ruddy was Claimant’s primary care provider, but she did not treat 24 Claimant for her psychiatric conditions. (Doc. 11-12 at 61–62). Nonetheless, even if the 25 Court accords her the high status of a treating provider, the ALJ did not err. 26 Dr. Ruddy, relying on diagnoses made by Dr. Amezcua-Patino and others, stated 27 Claimant’s primary symptoms as “inability to focus, concentrate, take instruction, and 28 follow directions” as well as “impaired processing speed and comprehension.” (Doc. 11- 1 10 at 159–60). The opinions of the state agency psychologists contradict this opinion, and 2 thus the ALJ did not err in discrediting Dr. Ruddy’s opinion if there was substantial 3 evidence supporting specific and legitimate reasons to do so. (Compare Doc. 11-10 at 159– 4 66, with Doc. 11-4 at 12–13 (stating Claimant has no “understanding and memory 5 limitations” and would “be able to focus, attend, concentrate, and persevere on simple, 6 routine tasks over an extended period of time”), and Doc. 11-4 at 27–28 (same)). 7 Dr. Ruddy’s opinion regarding Claimant’s mental limitations is as inconsistent with 8 Dr. Amezcua-Patino’s notes as his own opinion is and equally unsupported by the medical 9 evidence. See Ellsworth-Glasman v. Berryhill, 731 F. App’x 724, 725 (9th Cir. 2018) 10 (holding that conflict with a treating physician’s treatment notes was a specific and 11 legitimate reason to reject another doctor’s opinion); Presley-Carrillo v. Berryhill, 692 F. 12 App’x 941, 944 (9th Cir. 2017) (holding the ALJ properly relied on a treating physician’s 13 “extensive treatment notes” to discredit the conflicting opinion of another doctor, even 14 though the treating physician’s opinion had been discredited). In fact, Dr. Ruddy cited a 15 neuropsychological test showing that Claimant has “largely normal cognition with areas of 16 inefficiency.” (Doc. 11-10 at 159 (citing Doc. 11-9 at 7)). As noted, “where the evidence 17 is susceptible to more than one rational interpretation,” it is the ALJ’s responsibility to 18 determine if there is a conflict based on the medical evidence and if so, to resolve that 19 conflict. Hutcheson, 2017 WL 3839956, at *7 (quoting Andrews, 53 F.3d at 1039–40). The 20 ALJ did not err in finding inconsistency between Dr. Ruddy’s opinion and the treatment 21 notes and medical evidence in the record, and thus, the ALJ’s decision to discount Dr. 22 Ruddy’s opinion was not in error. 23 Dr. Ruddy’s comments regarding Claimant’s mental limitations are also brief and 24 conclusory. (Doc. 11-10 at 159–63). The Medical Disability Questionnaire she filled out 25 focuses on physical rather than mental limitations, (id.), and she appeared to defer to 26 Dr. Amezcua-Patino’s opinion of Claimant’s mental limitations. (Doc. 11-12 at 62 (“My 27 understanding is that her psychiatrist is also going to be completing an evaluation. . . . I 28 think that it is predominantly her psychiatric and mental health issues that would be 1 predominantly at play here.”)). The ALJ’s rejection of her opinion regarding Claimant’s 2 mental limitations was proper here because an “ALJ need not accept the opinion of any 3 physician, including a treating physician, if that opinion is brief, conclusory, and 4 inadequately supported by clinical findings.” Thomas, 278 F.3d at 957 (citation omitted). 5 Consequently, the conclusory nature of Dr. Ruddy’s opinion is also a specific and 6 legitimate reason to discount her opinion. 7 The ALJ did not err in discounting Dr. Ruddy’s opinion. As such, any support for 8 Dr. Amezcua-Patino’s opinion from Dr. Ruddy’s opinion does not establish the ALJ erred. 9 Second, the ALJ properly discounted PA Kiraly’s opinion. PA Kiraly, as a physician 10 assistant, is an “other source.” 20 C.F.R. § 404.1513(d) (2017).2 To reject her testimony, 11 therefore, the ALJ needed only to give “germane” reasons. PA Kiraly opined that Claimant 12 has chiefly marked, with some moderately-to-marked, mental limitations. (Doc. 11-13 at 13 52–53). PA Kiraly’s opinion was therefore also inconsistent with the objective medical 14 evidence, including Dr. Amezcua-Patino’s treatment notes, and the opinions of the state 15 agency psychologists, which constitute germane reasons. Molina, 674 F.3d at 1111–12; 16 Bayliss, 427 F.3d at 1218; Gooding v. Berryhill, No. 5:17-CV-00565-SK, 2018 WL 17 6112652, at *1 (C.D. Cal. Mar. 12, 2018); Ohlde v. Astrue, No. 09-3104-TC, 2010 WL 18 4483645, at *7 (D. Or. Nov. 1, 2010). Thus, PA Kiraly’s opinion does not show that the 19 ALJ erred by rejecting Dr. Amezcua-Patino’s opinion. 20 Claimant also argues that, because the ALJ relied in part on inconsistencies between 21 Claimant’s alleged limitations and the fact that Claimant cared for her granddaughter, his 22 discounting of Dr. Amezcua-Patino’s opinion was improper. It is true that the Ninth Circuit 23 Court of Appeals has repeatedly cautioned that “impairments that would unquestionably 24 preclude work and all the pressures of a workplace environment will often be consistent 25 with doing more than merely resting in bed all day,” Garrison v. Colvin, 759 F.3d 995, 26 1016 (9th Cir. 2014) (citation omitted), and “that a claimant need not vegetate in a dark
27 2 20 C.F.R. § 404.1513 was amended, and the amended version became effective on March 27, 2017. See 82 Fed. Reg. 5844-01, 5865 (Jan. 18, 2017). Claimant filed her disability 28 claim on August 4, 2015, (Doc. 11-6 at 2–3; Doc. 15 at 2); thus, the version effective from September 3, 2013 to March 26, 2017 applies. 1 room” to be found disabled, Magallanes, 881 F.2d at 756 (internal quotation marks and 2 citations omitted). But Ninth Circuit precedent “do[es] not prevent the ALJ from taking 3 into account a claimant’s level of activity, along with other probative evidence of disability 4 or lack thereof.” Magallanes, 881 F.2d at 756. Here, the ALJ did not rely purely upon 5 Claimant’s activities in discounting a medical opinion or discrediting testimony. Rather, 6 he consistently cited Claimant’s activities as a supporting reason in conjunction with 7 medical and other evidence from the record. (Doc. 11-3 at 22–25). In other words, “the 8 record does not suggest that the ALJ relied solely on [Claimant’s activity levels] in flagrant 9 disregard of overwhelming medical evidence to the contrary.” Magallanes, 881 F.2d at 10 756. Even if the ALJ had considered Claimant’s activity levels improperly, the 11 inconsistencies between Dr. Amezcua-Patino’s opinion and both his treatment notes and 12 the objective medical evidence are, as discussed, specific and legitimate reasons to discount 13 his opinion. 14 Finally, Claimant asserts that the ALJ did not properly weigh Dr. Amezcua-Patino’s 15 opinion under 20 C.F.R. § 404.1527(c)(2)–(6). Section 404.1527(c)(2)–(6) provides a list 16 of factors for the Commissioner to consider in evaluating the weight the Commissioner 17 should accord an opinion by a treating source. See 20 C.F.R. § 404.1527(c)(2)–(6). The 18 ALJ stated that he “considered opinion evidence in accordance with the requirements of 19 20 CFR 404.1527.” (Doc. 11-3 at 21). Consideration is all that is required. See Trevizo v. 20 Berryhill, 871 F.3d 664, 676 (9th Cir. 2017); see also Kelly v. Berryhill, 732 F. App’x 558, 21 562–63 & n.4 (9th Cir. 2018). The ALJ complied with 20 C.F.R. § 404.1527(c)(2)–(6). 22 In short, the ALJ justified giving Dr. Amezcua-Patino’s opinion limited weight, as 23 detailed above, by noting its inconsistency with his treatment notes and with the record as 24 a whole. The ALJ did not err in discounting Dr. Amezcua-Patino’s opinion. 25 b. Evaluation of Residual Functional Capacity 26 Claimant argues next that the ALJ’s limitation of Claimant in his RFC determination 27 to simple, unskilled work does not capture her moderate limitations in concentration, 28 persistence, or pace. The ALJ stated in his opinion, however, that his RFC assessment 1 reflected moderate limitations in concentration, persistence, or pace. (Doc. 11-3 at 20–21). 2 The Ninth Circuit Court of Appeals has held that “an ALJ’s assessment of a claimant 3 adequately captures restrictions related to concentration, persistence, or pace where the 4 assessment is consistent with restrictions identified in the medical testimony.” Stubbs- 5 Danielson v. Astrue, 539 F.3d 1169, 1173–74 (9th Cir. 2008) (citation omitted). Claimant 6 argues that Dr. Dyer’s records showed memory deficiencies and mental disorganization for 7 which the ALJ did not account, but the ALJ explicitly considered Dr. Dyer’s records and 8 gave them some weight in determining Claimant’s RFC. (Doc. 11-3 at 23). She also argues 9 that the RFC assessment is inconsistent with the opinions of Dr. Amezcua-Patino, Dr. 10 Ruddy, and PA Kiraly, but the ALJ properly gave those opinions little weight as discussed 11 above. 12 The ALJ’s RFC determination is supported by the opinions of state agency 13 psychologists Steven Fair, Ph.D. and Kevin Donovan, Ph.D. in determining Claimant’s 14 RFC. (Doc. 11-3 at 25). Dr. Fair found Claimant to have, at most, some moderate 15 limitations in concentration and persistence and opined that she was limited to simple, 16 unskilled work. (Doc. 11-4 at 11–13). Dr. Donovan agreed. (Doc. 11-4 at 27–29). The 17 ALJ’s determination of Claimant’s RFC was consistent with the restrictions identified by 18 Dr. Fair and Dr. Donovan. Moreover, the ALJ found that the opinions of Dr. Fair and Dr. 19 Donovan were consistent with other evidence in the record, pointing specifically to Dr. 20 Amezcua-Patino’s treatment notes. (Doc. 11-3 at 25). This finding is reasonable and will 21 not be disturbed. See Stubbs-Danielson, 539 F.3d at 1173–74. The ALJ’s RFC 22 determination was therefore free of legal error and supported by substantial evidence. 23 c. Reliance on the Medical-Vocational Guidelines 24 Claimant’s final argument is that the ALJ erred in relying on the Medical- 25 Vocational Guidelines (“the grids”) rather than calling for vocational expert testimony. At 26 step five of the disability evaluation process, the burden shifts to the Commissioner to show 27 that a claimant can engage in gainful employment in the national economy. See Reddick v. 28 Chater, 157 F.3d 715, 721 (9th Cir. 1998). The Commissioner can make this showing in 1 either one of two ways. The Commissioner can call a vocational expert to evaluate a 2 hypothetical factual scenario based on the claimant’s limitations and testify about “what 3 kinds of jobs the claimant still can perform and whether there is a sufficient number of 4 those jobs available in the claimant’s region or in several other regions of the economy to 5 support a finding of ‘not disabled.’” Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999) 6 (citation omitted). Alternatively, the ALJ can rely on the grids to determine if a particular 7 claimant “can perform some work that exists in ‘significant numbers’ in the national 8 economy.” Id. The ALJ may only rely on the grids “when the grids accurately and 9 completely describe the claimant’s abilities and limitations.” Burkhart v. Bowen, 856 F.2d 10 1335, 1340 (9th Cir. 1988) (citation omitted). The grids do not cover certain non-exertional 11 limitations, such as “mental, sensory, postural, manipulative, or environmental (e.g., 12 inability to tolerate dust or fumes) limitations.” Id. at 1340–41 (citation omitted). 13 Here, Claimant argues that a vocational expert was required due to the ALJ’s finding 14 of moderate limitations in “concentration, persistence, and pace.” (Doc. 15 at 23). 15 “However, the fact that a non-exertional limitation is alleged does not automatically 16 preclude application of the grids.” Desrosiers, 846 F.2d at 577. Rather, the ALJ must 17 “determine if a claimant’s non-exertional limitations significantly limit the range of work 18 permitted by [her] exertional limitations.” Id. In such a case, the grids are inapplicable, and 19 a vocational expert is required. Hoopai v. Astrue, 499 F.3d 1071, 1075–76 (9th Cir. 2007); 20 see also Burkhart, 856 F.2d at 1340–41 (concluding that ALJ erred in relying on the grids 21 because ALJ found that claimant could not “perform the full range of sedentary and light 22 work because of significant mental and manipulative nonexertional limitations”). But 23 where non-exertional limitations do not “significantly limit[] a claimant’s ability to do 24 work beyond the [claimant’s] exertional limitation[s],” an ALJ may rely on the grids. See 25 Hoopai, 499 F.3d at 1076–77 (concluding that claimant’s “depression was not a 26 sufficiently severe non-exertional limitation that prohibited the ALJ’s reliance on the grids” 27 despite the fact that evidence showed “limitations [that] were moderate” as to claimant’s 28 “ability to maintain concentration, persistence and pace”). 1 The ALJ did not err by relying on the grids. The ALJ found that the non-exertional 2|| limitations supported by the record “have little or no effect on the occupational base of || unskilled work at all exertional levels.” (Doc. 11-3 at 26). This finding is reasonable because, as discussed, the ALJ had already taken Claimant’s mental limitations into 5 || account in limiting her to unskilled work. See SSR 85-15, 1985 WL 56857, at *4 □□□□□□□ 6|| there is no exertional impairment, unskilled jobs at all levels of exertion constitute the potential occupational base for persons who can meet the mental demands of unskilled || work.”). Claimant argues that “it is not clear that moderate limitations would not 9|| substantially erode the occupational base.” (Doc. 15 at 24-25). However, as in Hoopai, even if evidence supports that Claimant had moderation limitations in concentration, 11 || persistence, and pace, nothing suggests that the ALJ erred in finding that such limitations 12 || were not severe enough to prohibit the ALJ from relying on the grids. Hoopai, 499 F.3d at 13 || 1076-77. Stated differently, the ALJ did not err in finding that Claimant’s non-exertional 14|| limitations are not severe enough to preclude her from performing work that is consistent 15 || with her exertional limitations. (Doc. 11-3 at 26—27). There is substantial evidence in the 16 || record to support the ALJ’s decision to rely on the grids. IV. CONCLUSION 18 For the foregoing reasons, 19 IT IS ORDERED that the decision of the Commissioner is AFFIRMED. The Clerk of Court shall enter judgment accordingly.* 21 Dated this 14th day of July, 2020. 22 23 a 24 25 _ James A. Teil Org Senior United States District Judge 26 27 28 □ > To the extent mandate is required, the judgment shall serve as the mandate.
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