Samuel Barreras, Jr. v. Andrew Saul

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 6, 2020
• Docket: 19-55060
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION FEB 6 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SAMUEL J. BARRERAS, Jr., No. 19-55060

Plaintiff-Appellant, D.C. No. 5:17-cv-02232-FMO-JEM v.

ANDREW M. SAUL, Commissioner of MEMORANDUM* Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Fernando M. Olguin, District Judge, Presiding

Submitted February 4, 2020** Pasadena, California

Before: IKUTA and CHRISTEN, Circuit Judges, and MARBLEY,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Algenon L. Marbley, United States District Judge for the Southern District of Ohio, sitting by designation. Appellant Samuel Barreras, Jr. appeals the district court’s order affirming

the denial of Social Security Disability benefits. We have jurisdiction pursuant to

28 U.S.C. § 1291, and we affirm. Because the parties are familiar with the facts of

the case, we recite only those necessary to resolve the issues on appeal.

1. The ALJ did not err by declining to categorize Barreras in the

“advanced age category.” When confronted with a borderline age situation, an

ALJ is only required to consider whether to use the older age category. See

Lockwood v. Comm’r SSA, 616 F.3d 1068, 1071 (9th Cir. 2010). There is no

requirement that the ALJ provide a written explanation for declining to use an

older age category. Id. (citing 20 C.F.R. § 404.1563(b)). Here, the ALJ mentioned

Barreras’s birthday, that he was 54 years old on the date last insured, and that he

had changed age categories during the relevant period. The ALJ cited the relevant

regulation, § 404.1563, and acknowledged Barreras’s borderline-age argument and

counsel’s statement in a pre-hearing brief that Barreras was only five weeks away

from turning 55.1 The ALJ also recognized that “the age categories should not be

mechanically applied.” The record shows that the ALJ did not apply the age

1 Given the evidence that the ALJ was aware of Barreras’s correct age on the date last insured, the ALJ’s misstatement that Barreras “was 54 years old, which is defined as a younger individual age 18–49, on the date last insured,” was a harmless error. See Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). 2 categories mechanically, but considered them as required by Lockwood. It is

inconsequential to our analysis that the ALJ’s decision was contrary to internal

Social Security Administration policies listed in the Program Operations Manual

System (POMS) or the Commissioner’s Hearings, Appeals and Litigation Law

Manual (HALLEX), which instructs the ALJ to consider “additional vocational

adversities” when determining whether to use a higher age category, because

neither manual “impose[s] judicially enforceable duties on either the ALJ or this

court.” Id. at 1072–73.

2. The ALJ did not err by denying Barreras the opportunity to cross-

examine the Medical Expert, Dr. Schmitter. Although a claimant is not entitled to

unlimited cross-examination, due process requires the opportunity to cross-

examine “a crucial witness whose findings substantially contradict the other

medical testimony.” Solis v. Schweiker, 719 F.2d 301, 301 (9th Cir. 1983). Dr.

Schmitter’s opinion did not contradict the other medical evidence. In fact, it was

“consistent with the record as a whole.” Indeed, Barreras’s counsel confirmed at

the hearing that she had the opportunity to review the record, which included Dr.

Schmitter’s opinion, yet did not seek to present any new evidence related to

Barreras’s impairments.

3 Nor did the ALJ err by failing to consider Dr. Schmitter’s opinion properly.

An ALJ is not required to discuss every piece of evidence presented, but must only

“explain why ‘significant probative evidence has been rejected.’” Vincent v.

Heckler, 739 F.2d 1393, 1394–95 (9th Cir. 1984) (quoting Cotter v. Harris, 642

F.2d 700, 706 (3d Cir. 1981)). Dr. Schmitter’s single comment that Barreras’s

need for a cane was “not documented, but may be indicated medically” was neither

significant nor probative.

3. The ALJ did not err by rejecting Barreras’s subjective symptom

testimony. Absent a finding of malingering, an ALJ must give “‘specific, clear and

convincing reasons’ in order to reject the claimant’s testimony about the severity

of the symptoms.” Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting

Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)). Here, the ALJ stated that

Barreras’s testimony about the intensity, persistence, and limiting effects of his

symptoms were not “entirely consistent” with medical evidence in the record.

“Contradiction with the medical record is a sufficient basis for rejecting the

claimant’s subjective testimony.” Carmickle v. Comm’r, SSA, 533 F.3d 1155,

1161 (9th Cir. 2008). The ALJ also explained that Barreras experienced pain relief

with medication, received conservative treatment, and reported daily activities

4 inconsistent with the symptoms he described. These reasons are supported by

substantial evidence in the record.

4. The ALJ did not err by classifying Barreras’s residual functioning

capacity as “light” instead of “sedentary.” When a claimant falls between two

exertional levels and the claimant’s “exertional capacity . . . is only slightly

reduced in terms of the regulatory criteria,” it “could indicate a sufficient

remaining occupational base to satisfy the minimal requirements for a finding of

‘Not disabled.’” Moore v. Apfel, 216 F.3d 864, 870 (9th Cir. 2000) (quoting SSR

83-12). “In situations where the rules would direct different conclusions, and the

individual’s exertional limitations are somewhere ‘in the middle’ in terms of the

regulatory criteria for exertional ranges of work, more difficult judgments are

involved” and the expertise of a Vocational Expert is “advisable.” Id. Even

assuming that Barreras’s ability to stand or walk up to four hours a day, as opposed

to the six hours required for “light work,” was more than a slight reduction in his

capacity, the ALJ “did exactly what the caselaw and SSR 83-12 direct him to

do—he consulted a VE” to determine the appropriate classification. Id.

AFFIRMED.