1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHON M. MELLOW, No. 2:18-cv-01262 AC 12 Plaintiff, 13 v. ORDER 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16
17 18 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 19 (“Commissioner”), denying his application for disability insurance benefits (“DIB”) under Title II 20 of the Social Security Act (“the Act”), 42 U.S.C. §§ 401-34.1 For the reasons that follow, 21 plaintiff’s motion for summary judgment will be DENIED, and defendant’s cross-motion for 22 summary judgment will be GRANTED. 23 //// 24 //// 25 //// 26 1 DIB is paid to disabled persons who have contributed to the Disability Insurance Program, and 27 who suffer from a mental or physical disability. 42 U.S.C. § 423(a)(1); Bowen v. City of New York, 476 U.S. 467, 470 (1986). 28 1 I. PROCEDURAL BACKGROUND 2 Plaintiff applied for DIB on October 1, 2014. Administrative Record (“AR”) 201-02.2 3 The disability onset date was alleged to be December 17, 2013. AR 201. The application was 4 disapproved initially and on reconsideration. AR 128-32, 136-40. On October 12, 2016, ALJ 5 Peter F. Belli presided over the hearing on plaintiff’s challenge to the disapprovals. AR 41-91 6 (transcript). Plaintiff, who appeared with counsel, was present and testified at the hearing. 7 AR 41. Michael Frank, a Vocational Expert (“VE”), also testified at the hearing. Id. 8 On March 3, 2017, the ALJ found plaintiff “not disabled” under Sections 216(i) and 9 223(d) of Title II of the Act, 42 U.S.C. §§ 416(i), 423(d). AR 15-35 (decision). On March 12, 10 2018, the Appeals Council denied plaintiff’s request for review, leaving the ALJ’s decision as the 11 final decision of the Commissioner of Social Security. AR 1-6. 12 Plaintiff filed this action on May 15, 2018. ECF No. 1; see 42 U.S.C. § 405(g). The 13 parties consented to the jurisdiction of the magistrate judge. ECF Nos. 5, 6. The parties’ cross- 14 motions for summary judgment, based upon the Administrative Record filed by the 15 Commissioner, have been fully briefed. ECF Nos. 13 (plaintiff’s summary judgment motion), 14 16 (Commissioner’s summary judgment motion). 17 II. FACTUAL BACKGROUND 18 Plaintiff was born on in 1971, and accordingly was, at age 43, a younger person under the 19 regulations, when he filed his application.3 AR 203. Plaintiff has at least a high school education 20 and can communicate in English. AR 33. Plaintiff worked as a sales representative for security 21 alarm systems from July 1998 to December 2013. AR 265. 22 III. LEGAL STANDARDS 23 The Commissioner’s decision that a claimant is not disabled will be upheld “if it is 24 supported by substantial evidence and if the Commissioner applied the correct legal standards.” 25 Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2003). “‘The findings of the 26 Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . ..’” Andrews 27 2 The AR is electronically filed at ECF Nos. 9.3 to 9.82 (AR 1 to 4312). 28 3 See 20 C.F.R. § 404.1563(c) (“younger person”). 1 v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (quoting 42 U.S.C. § 405(g)). 2 Substantial evidence is “more than a mere scintilla,” but “may be less than a 3 preponderance.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). “It means such 4 evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. 5 Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted). “While inferences from the 6 record can constitute substantial evidence, only those ‘reasonably drawn from the record’ will 7 suffice.” Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006) (citation omitted). 8 Although this court cannot substitute its discretion for that of the Commissioner, the court 9 nonetheless must review the record as a whole, “weighing both the evidence that supports and the 10 evidence that detracts from the [Commissioner’s] conclusion.” Desrosiers v. Secretary of HHS, 11 846 F.2d 573, 576 (9th Cir. 1988); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (“The 12 court must consider both evidence that supports and evidence that detracts from the ALJ’s 13 conclusion; it may not affirm simply by isolating a specific quantum of supporting evidence.”). 14 “The ALJ is responsible for determining credibility, resolving conflicts in medical 15 testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th 16 Cir. 2001). “Where the evidence is susceptible to more than one rational interpretation, one of 17 which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 18 278 F.3d 947, 954 (9th Cir. 2002). However, the court may review only the reasons stated by the 19 ALJ in his decision “and may not affirm the ALJ on a ground upon which he did not rely.” Orn 20 v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 21 2003) (“It was error for the district court to affirm the ALJ’s credibility decision based on 22 evidence that the ALJ did not discuss”). 23 The court will not reverse the Commissioner’s decision if it is based on harmless error, 24 which exists only when it is “clear from the record that an ALJ’s error was ‘inconsequential to the 25 ultimate nondisability determination.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 26 2006) (quoting Stout v. Commissioner, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch v. 27 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 28 1 IV. RELEVANT LAW 2 Disability Insurance Benefits are available for every eligible individual who is “disabled.” 3 42 U.S.C. §§ 402(d)(1)(B)(ii). Plaintiff is “disabled” if she is “‘unable to engage in substantial 4 gainful activity due to a medically determinable physical or mental impairment . . . .’” Bowen v. 5 Yuckert, 482 U.S. 137, 140 (1987) (quoting identically worded provisions of 42 U.S.C. 6 §§ 423(d)(1)(A), 1382c(a)(3)(A)). 7 The Commissioner uses a five-step sequential evaluation process to determine whether an 8 applicant is disabled and entitled to benefits. 20 C.F.R. § 404.1520(a)(4); Barnhart v. Thomas, 9 540 U.S. 20, 24-25 (2003) (setting forth the “five-step sequential evaluation process to determine 10 disability” under Title II and Title XVI). The following summarizes the sequential evaluation: 11 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. 12 20 C.F.R. § 404.1520(a)(4)(i), (b). 13 Step two: Does the claimant have a “severe” impairment? If so, 14 proceed to step three. If not, the claimant is not disabled. 15 Id. § 404.1520(a)(4)(ii), (c). 16 Step three: Does the claimant’s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, 17 Subpt. P, App. 1? If so, the claimant is disabled. If not, proceed to step four. 18 Id. § 404.1520(a)(4)(iii), (d). 19 Step four: Does the claimant’s residual functional capacity make him 20 capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. 21 Id. § 404.1520(a)(4)(iv), (e), (f). 22 Step five: Does the claimant have the residual functional capacity 23 perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 24 Id. § 404.1520(a)(4)(v), (g). 25 26 The claimant bears the burden of proof in the first four steps of the sequential evaluation 27 process. 20 C.F.R. § 404.1512(a) (“In general, you have to prove to us that you are blind or 28 disabled”); Bowen, 482 U.S. at 146 n.5. However, “[a]t the fifth step of the sequential analysis, 1 the burden shifts to the Commissioner to demonstrate that the claimant is not disabled and can 2 engage in work that exists in significant numbers in the national economy.” Hill v. Astrue, 698 3 F.3d 1153, 1161 (9th Cir. 2012); Bowen, 482 U.S. at 146 n.5. 4 V. THE ALJ’s DECISION 5 The ALJ made the following findings: 6 1. The claimant meets the insured status requirements of the Social Security Act through June 30, 2019. 7 2. [Step 1] The claimant has not engaged in substantial gainful 8 activity since December 17, 2013, the alleged onset date (20 CFR 404.1571 et seq.). 9 3. [Step 2] The claimant has the following severe impairments: 10 history of coronary artery disease and ischemic cardiomyopathy; peripheral venous insufficiency; compartment syndrome with right 11 drop foot, peripheral neuropathy, right acquired right pes cavus, contracture of right ankle joint and acquired right hammer toe; sleep 12 apnea; bilateral sensorineural hearing loss (20 CFR 404.1520(c)). 13 4. [Step 3] The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of 14 the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526). 15 5. [Residual Functional Capacity (“RFC”)] After careful 16 consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform sedentary 17 work as defined in 20 CFR 404.1567(a) except he can lift and carry, push and pull ten pounds frequently and fifteen pounds occasionally; 18 can sit for eight hours of an eight hour day with normal breaks but requires a sit/stand option where after one hour he can briefly change 19 position not leaving the work station; he can stand and walk for two hours of an eight hour day with normal breaks but after 25-30 20 minutes must change position to sit for five-ten minutes, then resume standing or walking; he can do no climbing of ladders, ropes and 21 scaffolds; he cannot work in extreme noises without ear protection; he can occasionally kneel, stoop, crouch and crawl; he can 22 occasionally perform foot pedal operations with the right lower extremity; he can less than occasionally be exposed to vibrations; he 23 must avoid concentrated exposure to fumes, odors, dust, gases, poor ventilation, etc.; he cannot work about hazards (dangerous 24 machinery, unprotected heights etc); he must have less than occasional exposure to extreme temperatures. 25 6. [Step 4] The claimant is unable to perform any past relevant work 26 (20 CFR 404.1565). 27 7. [Step 5] The claimant was born on January 24, 1971 and was 42 years old, which is defined as a younger individual age 45-49, on the 28 alleged disability onset date (20 CFR 404.1563). 1 8. [Step 5, continued] The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564). 2 9. [Step 5, continued] Transferability of job skills is not material to 3 the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not 4 disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2). 5 10. [Step 5, continued] Considering the claimant’s age, education, 6 work experience, and residual functional capacity, there are job that exist in significant numbers in the national economy that the claimant 7 can perform (20 CFR 404.1569 and 404.1569(a). 8 11. The claimant has not been under a disability, as defined in the Social Security Act, from December 17, 2013, through the date of 9 this decision (20 CFR 404.1520(g)). 10 AR 20-35. As noted, the ALJ concluded that plaintiff was “not disabled” under Title II of the 11 Act. AR 35. 12 VI. ANALYSIS 13 Plaintiff argues that the ALJ (1) erred procedurally by failing to address a conflict 14 between the vocational expert’s testimony and the Dictionary of Occupational Titles, 15 (2) improperly discounted plaintiff’s testimony as to the severity of his symptoms, (3) improperly 16 rejected the medical opinions of certain physicians, and (4) failed to consider limitations caused 17 by side effects from plaintiff’s medications. ECF No. 13 at 6-18. 18 A. Step 5 Conflict Between the Vocational Expert and the DOT 19 At Step 5, the burden shifts to the Commissioner “‘to identify specific jobs existing in 20 substantial numbers in the national economy that [a] claimant can perform despite [his] identified 21 limitations.’” Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir. 2015) (quoting Johnson v. Shalala, 22 60 F.3d 1428, 1432 (9th Cir. 1995)). Under the applicable regulations, “[w]ork exists in the 23 national economy when there is a significant number of jobs (in one or more occupations) having 24 requirements which you are able to meet with your physical or mental abilities and vocational 25 qualifications.” 20 C.F.R. § 404.1566(b). To meet this burden, the Commissioner takes 26 “administrative notice” of “reliable job information available from various governmental and 27 other publications,” including the Dictionary of Occupational Titles (“DOT”), published by the 28 Department of Labor, which describes the maximum requirements for each listed occupation. 20 1 C.F.R. § 404.1566(d)(1); SSR 00-4p, 2000 WL 1898704 (Dec. 4, 2000) (“[i]n making disability 2 determinations, we rely primarily on the DOT . . . for information about the requirements of work 3 in the national economy”). “In addition to the DOT, the ALJ relies on the testimony of vocational 4 experts who testify about specific occupations that a claimant can perform in light of his residual 5 functional capacity.” Zavalin, 778 F.3d at 846; see 20 C.F.R. § 404.1566(e) (use of vocational 6 experts). 7 Here, the ALJ relied on the testimony of vocational expert (“VE”) Michael Frank. AR 84- 8 90. At the hearing, the ALJ posed a hypothetical individual similar to plaintiff with numerous 9 limitations, who could sit for a full workday with normal breaks but “requires a sit/stand option,” 10 meaning that he “could sit approximately 1 hour, and then he needs to change the position, not 11 leaving the workstation.” AR 85-86. The VE replied that such a person could not perform 12 plaintiff’s past relevant work as a security systems sales representative. AR 86. However, the 13 VE identified three other jobs that such an individual could perform: election clerk (DOT 14 205.367–030, sedentary exertion); printed circuit layout taper (DOT 017.687–010, sedentary 15 exertion); and call-out operator (DOT 237.367–014, sedentary exertion). AR 87-88. The VE 16 specified that he selected sedentary occupations due to the sit/stand requirement. AR 87 (“I’m 17 focusing . . . on sedentary because of . . . the sit/stand option . . . .”). 18 The ALJ ultimately incorporated this sit/stand requirement into plaintiff’s RFC and 19 determined that there were available jobs in the national economy that plaintiff could perform, 20 such as the three jobs identified by the VE. AR 25, 33-34. The ALJ noted that the VE “provided 21 sedentary positions in response to the hypothetical to account for the sit/stand option, which while 22 not recognized under the [DOT], is based upon his experience, education and training.” AR 34 23 (citation omitted). The ALJ determined that, “[p]ursuant to SSR 00-4p, . . . the [VE]’s testimony 24 is consistent with the information contained in the [DOT].” AR 34. 25 Plaintiff argues that the ALJ failed to ask the VE whether the VE’s testimony conflicted 26 with the DOT, and that this failure constitutes reversible error because the VE’s testimony 27 deviated from the DOT—which does not contemplate sit/stand options—and, without an 28 explanation for the “apparent conflict,” the court cannot determine whether the Step 5 finding is 1 supported by substantial evidence. ECF No. 13 at 6-7. 2 Social Security Ruling 00-4p was issued to clarify the standards for identifying and 3 resolving conflicts between VE testimony and information in the DOT. As relevant to this case, 4 SSR 00–4p provides: 5 Occupational evidence provided by a VE . . . generally should be consistent with the occupational information supplied by the DOT. 6 When there is an apparent unresolved conflict between VE . . . evidence and the DOT, the adjudicator must elicit a reasonable 7 explanation for the conflict before relying on the VE . . . evidence to support a determination or decision about whether the claimant is 8 disabled. At the hearings level, as part of the adjudicator’s duty to fully develop the record, the adjudicator will inquire, on the record, 9 as to whether or not there is such consistency. 10 Neither the DOT nor the VE . . . evidence automatically “trumps” when there is a conflict. The adjudicator must resolve the conflict by 11 determining if the explanation given by the VE . . . is reasonable and provides a basis for relying on the VE . . . testimony rather than on 12 the DOT information. 13 *** 14 When a VE . . . provides evidence about the requirements of a job or occupation, the adjudicator has an affirmative responsibility to ask 15 about any possible conflict between that VE . . . evidence and information provided in the DOT. In these situations, the adjudicator 16 will: 17 Ask the VE or VS if the evidence he or she has provided conflicts with information provided in the DOT; and 18 If the VE’s . . . evidence appears to conflict with the DOT, 19 the adjudicator will obtain a reasonable explanation for the apparent conflict. 20 *** 21 When vocational evidence provided by a VE . . . is not consistent 22 with information in the DOT, the adjudicator must resolve this conflict before relying on the VE . . . evidence to support a 23 determination or decision that the individual is or is not disabled. The adjudicator will explain in the determination or decision how he 24 or she resolved the conflict. The adjudicator must explain the resolution of the conflict irrespective of how the conflict was 25 identified. 26 //// 27 //// 28 //// 1 SSR 00–4p. 4 Interpreting this SSR, the Ninth Circuit has held that “the ALJ must first determine 2 whether a conflict exists. If it does, the ALJ must then determine whether the [VE’s] explanation 3 for the conflict is reasonable and whether a basis exists for relying on the expert rather than the 4 [DOT].” Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007). 5 Here, the Commissioner concedes that the ALJ failed to ask the VE if his testimony was 6 consistent with the DOT. ECF No. 14 at 12. Accordingly, the court finds that the ALJ did err. 7 See Massachi, 486 F.3d at 1153 (describing it as procedural error for the ALJ not to ask the VE 8 whether her testimony conflicted with the DOT); SSR 00–4p (“[T]he adjudicator has an 9 affirmative responsibility to ask about any possible conflict between that VE . . . evidence and 10 information provided in the DOT.”). However, failure to inquire, does not necessarily warrant 11 reversal. “This procedural error could have been harmless, were there no conflict, or if the 12 vocational expert had provided sufficient support for [his] conclusion so as to justify any potential 13 conflicts . . . .” Massachi, 486 F.3d at 1153 n.19. The Ninth Circuit has specified that an ALJ 14 need only “follow up” on potential conflicts that are “apparent or obvious”: 15 For a difference between an expert’s testimony and the [DOT]’s listings to be characterized as a conflict, it must be obvious or 16 apparent. This means that the testimony must be at odds with the [DOT]’s listing of job requirements that are essential, integral, or 17 expected. . . . [T]asks that aren’t essential, integral, or expected parts of a job are less likely to qualify as apparent conflicts that the ALJ 18 must ask about. 19 Gutierrez v. Colvin, 844 F.3d 804, 807-08 (9th Cir. 2016). Thus, the threshold question is 20 whether there was, in fact, an “apparent or obvious” conflict between the VE’s testimony and the 21 DOT. 22 The DOT is silent on whether the identified jobs—or any listed job—allow for a sit/stand 23 option. Lorigo v. Colvin, No. 1:13-CV-00405-SKO, 2014 WL 1577317, at *11 (E.D. Cal. Apr. 24 4 Social Security Ruling 00–4p, available at 2000 WL 1898704, Titles II and XVI: Use of 25 Vocational Expert and Vocational Specialist Evidence, and Other Reliable Occupational 26 Information in Disability Decisions, 65 Fed. Reg. 75759, 75760 (Dec. 4, 2000). “SSRs do not carry the ‘force of law,’ but they are binding on ALJs nonetheless.” Bray v. Comm’r of Soc. Sec. 27 Admin., 554 F.3d 1219, 1224 (9th Cir. 2009). The Ninth Circuit gives SSRs deference so long as they do not produce “a result inconsistent with the statute and regulations.” Bunnell v. Sullivan, 28 947 F.2d 341, 346 n.3 (9th Cir. 1991). 1 18, 2014) (“[T]he DOT does not discuss the availability of a sit/stand option.”). “The Ninth 2 Circuit has not directly addressed the question whether DOT silence about a sit/stand option, 3 without more, creates a conflict with VE testimony that a claimant with such a limitation can 4 perform an occupation.” Williams v. Berryhill, No. 2:17-CV-00357 AC, 2018 WL 3817560, at 5 *6-7 (E.D. Cal. Aug. 10, 2018). The courts in this circuit are divided on the issue. Edmonds v. 6 Berryhill, No. ED CV 15-2027-SP, 2017 WL 1217081, at *3 (C.D. Cal. Mar. 31, 2017) 7 (collecting cases). In a recent unpublished opinion, however, the Ninth Circuit indicated that the 8 DOT’s silence on sit/stand options meant there was no conflict. Dewey v. Colvin, 650 Fed. 9 Appx. 512, 514 (9th Cir. 2016) (unpublished) (“A conflict must exist between the VE’s testimony 10 and the DOT in order to trigger the ALJ’s responsibility to resolve the conflict. Here, the DOT is 11 silent on whether the jobs in question allow for a sit/stand option. [Citation of occupations] There 12 is no conflict.”). 13 In light of Gutierrez and Dewey, the undersigned concludes that there was no apparent or 14 obvious conflict for the ALJ to resolve in this case. Looking at the duties of election clerk, 15 printed circuit layout taper, and call-out operator as described by the DOT, none of the “essential, 16 integral, or expected” requirements of these occupations would require plaintiff to sit or stand the 17 entire time without changing positions. See Edmonds, 2017 WL 1217081 at *4 (following 18 Gutierrez) (holding that there was no obvious or apparent conflict between the VE’s testimony 19 and the DOT because a sit/stand option did not affect any essential, integral, or expected duty of 20 an informational clerk or cashier II job). The VE and the ALJ identified sedentary-strength 21 occupations specifically in order to accommodate the sit/stand option that would not have been 22 encapsulated in light-strength occupations. AR 34, 87. There is nothing about the identified jobs 23 which obviously or apparently conflicts with a sit/stand option, and plaintiff has not identified any 24 actual conflict. Accordingly, the ALJ’s failure to ask the VE whether there was a conflict was 25 harmless. 26 B. Consideration of Plaintiff’s Subjective Testimony 27 Next, plaintiff argues that the ALJ improperly discounted plaintiff’s testimony regarding 28 the severity of his symptoms without giving clear and convincing reasons for doing so. The 1 Ninth Circuit has summarized the ALJ’s task with respect to assessing a claimant’s credibility as 2 follows: 3 To determine whether a claimant’s testimony regarding subjective pain or symptoms is credible, an ALJ must engage in a two-step 4 analysis. First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment 5 which could reasonably be expected to produce the pain or other symptoms alleged. The claimant, however, need not show that her 6 impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could 7 reasonably have caused some degree of the symptom. Thus, the ALJ may not reject subjective symptom testimony . . . simply because 8 there is no showing that the impairment can reasonably produce the degree of symptom alleged. 9 Second, if the claimant meets this first test, and there is no evidence 10 of malingering, the ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering specific, clear and 11 convincing reasons for doing so. 12 Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) (citations and quotation marks 13 omitted). 14 “The clear and convincing standard is the most demanding required in Social Security 15 cases.” Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002). “At the same 16 time, the ALJ is not required to believe every allegation of disabling pain, or else disability 17 benefits would be available for the asking[.]” Molina, 674 F.3d at 1112 (citation omitted). “The 18 ALJ must specifically identify what testimony is credible and what testimony undermines the 19 claimant’s complaints.” Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 693 (9th Cir. 20 2009) (quoting Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999)). In 21 weighing a claimant’s credibility, an ALJ may consider, among other things, “inconsistencies 22 either in [plaintiff’s] testimony or between [his] testimony and [his] conduct, [plaintiff’s] daily 23 activities, [his] work record, and testimony from physicians and third parties concerning the 24 nature, severity, and effect of the symptoms of which [plaintiff] complains.” Thomas v. Barnhart, 25 278 F.3d 947, 958-59 (9th Cir. 2002). “If the ALJ’s credibility finding is supported by substantial 26 evidence in the record, [the court] may not engage in second-guessing.” Id. at 959. However, 27 “an ALJ may not reject a claimant’s subjective complaints based solely on a lack of medical 28 //// 1 evidence to fully corroborate the alleged severity of pain.” Burch v. Barnhart, 400 F.3d 676, 680 2 (9th Cir. 2005). 3 Plaintiff testified that a combination of impairments arising from his December 2013 4 cardiac arrest and organ failure caused him weakness, fatigue and chronic pain, limiting his 5 physical and cognitive function. The ALJ found that plaintiff’s medically determinable 6 impairments could reasonably be expected to cause the alleged symptoms but that plaintiff’s 7 statements concerning the intensity, persistence and limiting effects of these symptoms “are not 8 entirely consistent with” the medical and other record evidence. AR 26-27. The ALJ devoted 9 over five pages to evaluating plaintiff’s subjective complaints, providing at least four reasons for 10 discounting plaintiff’s testimony. AR 27-32. The court finds three of these reasons to be legally 11 sufficient. 12 First, the ALJ found that “findings upon physical exams and in medical imagery do not 13 correspond to the level of pain and limitation alleged.” AR 27. The ALJ accurately summarized 14 nearly two years of diagnostic tests and treatment notes from plaintiff’s medical providers over 15 the course of plaintiff’s recovery from the cardiac incident. Id. From April 2014 through 16 December 2015, tests showed no significant ischemia and asymptomatic coronary artery disease. 17 AR 2846, 2899, 3371, 3405, 3621, 3623, 3652, 3654. The ALJ particularly noted medical 18 screenings in July and December 2015 in which plaintiff reported exercise functional capacity at 19 4-6 metabolic equivalents (METS), “e.g. Yard work, climb a flight of stairs, walk up a hill”; and 20 daily activities such as daily 1/4-mile dog walks, vacuuming, mopping, and grocery shopping, 21 without experiencing exertional symptoms such as chest pains, palpitations, shortness of breath, 22 or diaphoresis. AR 2899, 3404, 3408. The ALJ reasonably concluded that this medical testing 23 and plaintiff’s self-reporting did not fully support his allegations of continuing cardiac symptoms 24 and limitations. The ALJ properly considered these records in assessing plaintiff’s credibility, 25 without making them the sole basis upon which he made his determination. See Burch, 400 F.3d 26 at 681 (“Although lack of medical evidence cannot form the sole basis for discounting pain 27 testimony, it is a factor that the ALJ can consider in his credibility analysis.”). 28 //// 1 Second, the ALJ found that plaintiff’s inconsistencies in following treatment 2 recommendations did not fully support his allegations. AR 28, 30. Specifically, the ALJ noted 3 plaintiff’s inconsistent use of his CPAP machine to relieve his sleep apnea; inconsistent wearing 4 of compression socks to treat his venous insufficiency; and decision to take medical marijuana 5 despite his treating physician’s advice that doing so would require tapering off of his prescribed 6 narcotics. Id. The court finds these limited examples of noncompliance are not probative of 7 plaintiff’s credibility. Plaintiff’s sleep apnea was relatively minor among his bevy of 8 impairments, and his treating physician acknowledged how “tricky” the CPAP equipment is to 9 tolerate. AR 3054. The ALJ identified only three instances of plaintiff presenting at medical 10 appointments without the compression socks he had been instructed to wear to move the venous 11 blood in his right lower extremity. AR 2489, 3109, 3791. There is no other indication that 12 plaintiff missed appointments or otherwise ignored his doctors’ advice. Finally, the record does 13 not support the ALJ’s characterization of plaintiff’s decision to take medical marijuana as being 14 inconsistent with treatment recommendations. Plaintiff merely asked his treating physician how 15 he might obtain a medical cannabis card, noting that he was exploring the option since none of 16 the prescribed pain medications were helping him much. AR 2770. His doctor replied that she 17 could not help obtain the card and informed him that if he chose to take marijuana, they would 18 need to taper him off of Percocet. Id. She did not instruct him not to take medical marijuana, and 19 plaintiff’s eventual choice to do so therefore cannot be viewed as noncompliance. Plaintiff’s 20 purported inconsistent following of treatment recommendations was not a clear and convincing 21 reason to discount his testimony. 22 Third, in various portions of the decision, the ALJ found plaintiff’s ability to engage in “a 23 rather ordinary range of activities of daily living” inconsistent with his subjective complaints. 24 AR 22, 27, 30. The ALJ noted plaintiff’s reported ability to prepare meals, shuttle his two 25 children to and from school, care for and walk a pet dog, shop for groceries, handle family 26 finances, use the computer for research and games, and perform light yard work. Id. The ALJ 27 could reasonably conclude that plaintiff’s daily activities undermined his claimed inability to 28 work and discount his testimony on that basis. See Molina, 674 F.3d at 1112 (“ALJ may consider 1 inconsistencies either in the claimant’s testimony or between the testimony and the claimant’s 2 conduct”); Burch, 400 F.3d at 681 (“if a claimant engages in numerous daily activities involving 3 skills that could be transferred to the workplace, the ALJ may discredit the claimant’s allegations 4 upon making specific findings relating to those activities”). 5 Finally, the ALJ found that plaintiff’s “allegations are challenged by the opinions of 6 record/the examining and evaluating physicians.” AR 30. Plaintiff takes issue with both the 7 wording and the substance of this finding. While the court agrees that the medical opinions 8 discussed by the ALJ do not directly “challenge[]” plaintiff’s subjective complaints, the ALJ 9 validly relied on inconsistencies between plaintiff’s testimony and the doctors’ opinions in 10 discounting plaintiff’s testimony. Thomas, 278 F.3d at 958-59. 11 Because the ALJ provided clear and convincing reasons for discounting plaintiff’s 12 subjective complaints, there was no error. 13 C. Evaluation of Medical Opinions 14 Plaintiff next argues that the ALJ erred in his evaluation of the medical opinions provided 15 by (1) the State agency reviewing physicians Dr. S. Jaituni and Dr. D. Pong, and (2) the 16 consultative examiner (“CE”) Dr. Janet O’Brien. ECF No. 13 at 14-16. 17 1. Reviewing Physicians 18 As to the reviewing physicians, plaintiff argues that the ALJ erred by failing to 19 incorporate in plaintiff’s RFC the opinions of Drs. Jaituni and Pong that plaintiff was limited to 20 only occasional verbal communication and occasional balancing. Dr. Jaituni at the initial level 21 and Dr. Pong on reconsideration both opined, as relevant, that plaintiff had a postural limitation 22 of balancing occasionally and had communicative limitations to “Avoid loud & nosy [sic] places 23 at work; only occ. verbal communication.” AR 102-03, 122-23. In his decision, the ALJ 24 acknowledged the reviewing physicians’ occasional balancing limitation, and the limitation that 25 plaintiff “must avoid loud and noisy places at work where he only occasionally has verbal 26 communication.” AR 30. As stated above, the ALJ found plaintiff could perform sedentary work 27 with numerous additional limitations, including that he “cannot work in extreme noises without 28 //// 1 ear protection.” AR 25. The RFC does not specifically mention a postural limitation for 2 balancing. 3 Although the reviewing physicians’ notations regarding communicative limitations are 4 less than crystal clear, the ALJ reasonably interpreted them to mean that plaintiff was limited to 5 occasional verbal communication when in loud places—not that he was limited to occasional 6 verbal communication in general—and adequately incorporated that limitation by precluding 7 plaintiff from working in noisy conditions without ear protection.5 As to the occasional balancing 8 limitation, even if the ALJ erred in rejecting the postural limitations assessed by Drs. Jaituni and 9 Pong, any error would be harmless. The erroneous omission of postural limitations from an RFC 10 for sedentary work is harmless “since sedentary jobs require infrequent stooping, balancing, 11 crouching, or climbing.” Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008); see 12 SSR 96–9p, 1996 WL 374185, at *7 (“Postural limitations or restrictions related to such activities 13 as climbing ladders, ropes, or scaffolds, balancing, kneeling, crouching, or crawling would not 14 usually erode the occupational base for a full range of unskilled sedentary work significantly 15 because those activities are not usually required in sedentary work.”) (emphasis added). 16 2. Consultative Examiner 17 As to the consultative examiner, plaintiff argues that the ALJ erred by implicitly rejecting 18 (without discussion) several non-exertional limitations Dr. O’Brien found and by expressly 19 discounting others. In her December 2014 consultative examination of plaintiff, Dr. O’Brien 20 opined that plaintiff could stand and walk less than 2 hours of an 8-hour day; sit 6 hours of an 8- 21 hour day; lift and carry 5 pounds rarely; stoop, crouch, kneel and climb less than 2 hours of an 8- 22 hour day (“postural limitations”); reach, handle, finger and feel less than 2 hours with either arm 23 (“manipulative limitations”). Further, she opined that plaintiff requires no assistive device but a 24 right ankle-foot orthoses brace, and that his severe hearing loss constitutes a communicative 25 limitation. AR 2103-04. As relevant to plaintiff’s arguments, the ALJ found in his RFC 26 assessment that plaintiff could not climb and could occasionally kneel, stoop, crouch and crawl. 27 5 The ALJ’s hypothetical to the VE also included the limitation that the person could not work 28 around extreme noises without ear protection. AR 85. 1 AR 25. The RFC did not include any communicative or manipulative limitations. 2 Plaintiff argues, first, that the ALJ erred by purporting to give “substantial weight” to Dr. 3 O’Brien’s postural and communicative limitations but then not assigning an RFC consistent with 4 those opinions. The court disagrees. As to the postural limitations, the ALJ’s determination that 5 plaintiff could never climb and could “occasionally” kneel, stoop, crouch, and crawl was 6 consistent with—and thus incorporated—Dr. O’Brien’s opinion that plaintiff could stoop, crouch, 7 kneel and climb less than 2 hours of an 8-hour day. See SSR 83-10, 1983 WL 31251, at *5 8 (“‘Occasionally’ means occurring from very little up to one-third of the time. Since being on 9 one’s feet is required ‘occasionally’ at the sedentary level of exertion, periods of standing or 10 walking should generally total no more than about 2 hours of an 8-hour workday . . . .”); 11 SSR 96–9p, 1996 WL 374185, at *3 (“‘Occasionally’ means occurring from very little up to one- 12 third of the time, and would generally total no more than about 2 hours of an 8-hour workday.”). 13 As to Dr. O’Brien’s opinion that plaintiff’s hearing loss constituted a communicative 14 limitation, plaintiff is correct that the ALJ did not explain his treatment of that portion of the 15 opinion, and the RFC does not include a communicative limitation. However, elsewhere in his 16 decision the ALJ did give detailed reasons for not finding plaintiff limited in his ability to 17 communicate. The ALJ accurately described the results of hearing tests and treatment notes in 18 2015 indicating that, although plaintiff remained deaf in his right ear, his hearing in his left ear 19 had improved since his cardiac event in December 2013, and he had “functional residual hearing” 20 better aided with a hearing aid (which plaintiff has worn since age 10) than by a cochlear implant. 21 AR 29, 3048. In light of plaintiff’s documented hearing improvement since Dr. O’Brien’s 2014 22 evaluation, substantial evidence supports the omission of a communicative limitation from 23 plaintiff’s RFC. 24 Plaintiff further argues that the ALJ erred by rejecting Dr. O’Brien’s opinion as to 25 plaintiff’s manipulative limitations. The ALJ afforded “little weight” to Dr. O’Brien’s opinion 26 that plaintiff could reach, handle, finger and feel less than 2 hours of a workday. AR 31. The 27 ALJ reasoned that the record did not demonstrate complaints, diagnosis or treatment regarding 28 plaintiff’s upper extremities or support any limitations on gross or fine manipulation. Further, 1 plaintiff did not allege impairment of his upper extremities, and no treating source opined he had 2 limited use of his arms or hands. Id. The court finds these to be specific and legitimate reasons, 3 supported by substantial evidence, for rejecting Dr. O’Brien’s manipulation limitations. Plaintiff 4 points to medical records documenting plaintiff’s sporadic right hand/thumb pain, which he 5 contends the ALJ ignored.6 The ALJ’s statement that there were no records of “complaints, 6 diagnosis nor treatment with regard to the upper extremities” does not appear to be directed 7 toward plaintiff’s hand/thumb pain issues. Indeed, elsewhere in the decision, the ALJ 8 acknowledged treatment records for this injury, which he described as “transient.” AR 23, 27. 9 Plaintiff does not challenge the ALJ’s additional finding that no treating source has opined that 10 plaintiff has limitations with using his arms and hands. Moreover, as the ALJ noted, plaintiff did 11 not even allege impairment of his upper extremities. AR 239 (function report not selecting check 12 box for impairment affecting “Using Hands”); see Rollins v. Massanari, 261 F.3d 853, 856 (9th 13 Cir. 2001) (finding substantial evidence supported rejecting doctor’s opined limitations that were 14 inconsistent with plaintiff’s own description of her limitations). 15 D. Consideration of Medication Side Effects 16 Finally, plaintiff argues that the ALJ erred by failing to consider the side effects of his 17 medications in determining his RFC. This argument fails because plaintiff never alleged that the 18 side effects of his (admittedly numerous) medications are disabling and there is no medical 19 evidence that they are or would result in greater limitations than those assessed in plaintiff’s RFC. 20 At the hearing, the only specific problem plaintiff testified to regarding his medications was that 21 they made him “extremely tired.” AR 67. Plaintiff also reported feeling dizziness from 22 Metroprolol; moodiness, depression and sweating from Prednisone; sleepiness and fatigue from 23 Zoloft, which he later discontinued (AR 1554); muscle soreness from Crestor; and restlessness 24 from Norco. AR 241. While treatment notes reflect these side effects, no provider indicated that 25
26 6 Plaintiff was treated for unprovoked pain at the base of his right thumb once in 2013, once in 2014, and once in 2015. AR 670, 2356, 2846, 2919. X-rays of the hand were negative; and on 27 examination, he had full range of motion and strength in the hand. AR 674, 2361. Plaintiff went to several physical therapy appointments in early 2016, which reduced the pain. AR 2471, 4134- 28 32, 4152, 4244. 1 | they would impede plaintiff’s ability to work. See Roquemore v. Comm’r of Soc. Sec. Admin., 2 | 374 Fed. Appx. 693, 695 (9th Cir. 2010) (“Nothing in the record suggests that [plaintiff’s] ability 3 || to work was affected by his medications. Therefore, the ALJ was not required to include a 4 || discussion of side effects.’’); Norman v. Astrue, No. EDCV 09-01747-JEM, 2010 WL 4916373, at 5 | *5 (C.D. Cal. Nov. 23, 2010) (noting that numerous cases have held that an ALJ need not address 6 || medication side effects where there is no allegation they interfere with the ability to work beyond 7 || REC assessed limitations, or there is no medical evidence of side effects severe enough to 8 || interfere with ability to work). The ALJ did not err by omitting discussion of the side effects of 9 | plaintiffs medication. 10 VU. CONCLUSION 11 For the reasons set forth above, IT IS HEREBY ORDERED that: 12 1. Plaintiffs motion for summary judgment (ECF No. 13), is DENIED; 13 2. The Commissioner’s cross-motion for summary judgment (ECF No. 14), is 14 | GRANTED; 15 3. The Clerk of the Court shall enter judgment for defendant, and close this case. 16 | DATED: August 30, 2019 . 7 Ctlhter— Lhar—e- 18 ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 18