1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 LAURENCE V., 9 Plaintiff, Case No. C19-378-MLP 10 v. ORDER 11 COMMISSIONER OF SOCIAL SECURITY, 12 Defendant. 13 I. INTRODUCTION 14 Plaintiff seeks review of the denial of his applications for Supplemental Security Income 15 and Disability Insurance Benefits. Plaintiff contends the administrative law judge (“ALJ”) erred 16 in weighing the medical evidence opinion, formulating Plaintiff’s residual functional capacity 17 (“RFC”), and relying on vocational expert (“VE”) testimony. (Dkt. # 16 at 1.) As discussed 18 below, the Court AFFIRMS the Commissioner’s final decision and DISMISSES the case with 19 prejudice. 20
21 22 23 1 II. BACKGROUND 2 Plaintiff was born in 1960, has the equivalent of a high school education, and has worked 3 as a transmission rebuilder. AR at 449, 537, 550, 561. Plaintiff was last gainfully employed in 4 2010. Id. at 537. 5 Plaintiff previously applied for disability benefits in 2011, alleging an onset date of
6 October 28, 2011. AR at 275-92. On April 18, 2013, an ALJ found Plaintiff not disabled and 7 Plaintiff’s request for review by the Appeals Council was denied. Id. Plaintiff submitted the 8 instant applications for disability insurance benefits, alleging disability as of April 19, 2013. Id. 9 at 436, 449-50, 457-77. Plaintiff’s applications were denied initially and on reconsideration, and 10 Plaintiff requested a hearing. Id. at 376-77, 379-80. After the ALJ conducted a hearing on 11 November 30, 2016, the ALJ issued a decision finding Plaintiff not disabled. Id. at 66-82. 12 Utilizing the five-step disability evaluation process,1 the ALJ found:
13 Step one: Plaintiff has not engaged in substantial gainful activity since the alleged onset date. 14 Step two: Plaintiff has the following severe impairments: coronary artery disease, left 15 ventricular thrombosis, degenerative disc disease, depression, anxiety, and substance abuse (20 CFR 404.1520(c) and 416.920(c)). 16 Step three: These impairments do not meet or equal the requirements of a listed 17 impairment.2
18 Residual Functional Capacity: Since April 19, 2013, Plaintiff can perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) with limitations. He can occasionally 19 climb ramps and stairs; never climb ladders, ropes, and scaffolds; unlimitedly balance, stoop, and kneel; frequently crouch; occasionally crawl; he would need to avoid 20 concentrated exposure to extreme cold; is able to work in two hour intervals; is able to complete given tasks by the end of a normal workday; however, requires work that 21 allows for a variable pace; and is able to work in a low stress environment defined as occasional changes in workplace setting. 22 Step four: Since April 19, 2013, Plaintiff has been unable to perform past relevant work. 23 1 20 C.F.R. §§ 404.1520, 416.920. 2 20 C.F.R. Part 404, Subpart P. Appendix 1. 1 Step five: Prior to February 23, 2015, the date Plaintiff’s age category changed, there 2 were jobs that existed in significant numbers in the national economy that Plaintiff could have performed. Plaintiff therefore was not disabled before February 23, 2015. Beginning 3 February 23, 2015, Plaintiff was disabled by direct application of Medical-Vocational Rule 202.06. 4 Id. at 66-82. 5 As the Appeals Council denied Plaintiff’s request for review, the ALJ’s decision is the 6 Commissioner’s final decision. AR at 14-17. Plaintiff appealed the final decision of the 7 Commissioner to this Court. (Dkt. # 16.) 8 III. LEGAL STANDARDS 9 Under 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of social 10 security benefits when the ALJ’s findings are based on legal error or not supported by substantial 11 evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th Cir. 2005). As a 12 general principle, an ALJ’s error may be deemed harmless where it is “inconsequential to the 13 ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) 14 (cited sources omitted). The Court looks to “the record as a whole to determine whether the error 15 alters the outcome of the case.” Id. 16 “Substantial evidence” is more than a scintilla, less than a preponderance, and is such 17 relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 18 Richardson v. Perales, 402 U.S. 389, 401 (1971); Magallanes v. Bowen, 881 F.2d 747, 750 (9th 19 Cir. 1989). The ALJ is responsible for determining credibility, resolving conflicts in medical 20 testimony, and resolving any other ambiguities that might exist. Andrews v. Shalala, 53 F.3d 21 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record as a whole, it may 22 neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Thomas v. 23 1 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is susceptible to more than one 2 rational interpretation, it is the Commissioner’s conclusion that must be upheld. Id. 3 IV. DISCUSSION 4 A. The ALJ Did Not Err in Evaluating the Medical Opinion Evidence 5 As a matter of law, more weight is given to a treating physician’s opinion than to that of a
6 non-treating physician because a treating physician “is employed to cure and has a greater 7 opportunity to know and observe the patient as an individual.” Magallanes v. Bowen, 881 F.2d 8 747, 751 (9th Cir. 1989); see also Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). A treating 9 physician’s opinion, however, is not necessarily conclusive as to either a physical condition or 10 the ultimate issue of disability, and can be rejected, whether or not that opinion is contradicted. 11 Magallanes, 881 F.2d at 751. If an ALJ rejects the opinion of a treating or examining physician, 12 the ALJ must give clear and convincing reasons for doing so if the opinion is not contradicted by 13 other evidence, and specific and legitimate reasons if it is. Reddick v. Chater, 157 F.3d 715, 725 14 (9th Cir. 1988). “This can be done by setting out a detailed and thorough summary of the facts
15 and conflicting clinical evidence, stating his interpretation thereof, and making findings.” Id. 16 (citing Magallanes, 881 F.2d at 751). The ALJ must do more than merely state his/her 17 conclusions. “He must set forth his own interpretations and explain why they, rather than the 18 doctors’, are correct.” Id. (citing Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988)). Such 19 conclusions must at all times be supported by substantial evidence. Reddick, 157 F.3d at 725. 20 Opinions from non-examining medical sources are to be given less weight than treating 21 or examining doctors. Lester, 81 F.3d at 831. However, an ALJ must always evaluate the 22 opinions from such sources and may not simply ignore them. In other words, an ALJ must 23 evaluate the opinion of a non-examining source and explain the weight given to it. Social 1 Security Ruling (“SSR”) 96-6p, 1996 WL 374180, at *2. Although an ALJ generally gives more 2 weight to an examining doctor’s opinion than to a non-examining doctor’s opinion, a non- 3 examining doctor’s opinion may nonetheless constitute substantial evidence if it is consistent 4 with other independent evidence in the record. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 5 2002); Orn, 495 F.3d at 632-33.
6 1. The ALJ’s Medical Evidence Summary 7 Before evaluating the medical opinion evidence, the ALJ gave a detailed summary of 8 Plaintiff’s impairments. AR at 74-77. With regard to Plaintiff’s spine condition, the ALJ found 9 Plaintiff received relatively conservative treatment and that objective findings in the record were 10 indicative of generally intact physical functioning. Id. at 74. The ALJ found that examinations 11 found tenderness, spasms, and reduced range of motion in Plaintiff’s spine, but there were no 12 substantial neurological issues or the need for invasive treatments. Id. (citing id. at 633-49). The 13 ALJ also noted Plaintiff’s chiropractic treatment improved his condition. Id. (citing id. at 650- 14 71). The ALJ further noted the records did not indicate any noteworthy gait or motor strength
15 deficits. Id. (citing id. at 620, 691-702, 825, 1309, 1384, 1408, 1415, 1531). The ALJ concluded 16 that although abnormalities were documented, Plaintiff’s spinal condition was not suggestive of 17 substantial limitations and that the RFC accommodated his spinal conditions. Id. at 75. 18 With regard to Plaintiff’s cardiovascular conditions, the ALJ found Plaintiff did have a 19 history of coronary artery disease with prior myocardial infarction and thrombosis, but that it did 20 not appear Plaintiff was significantly limited in his functioning for any extended period of time. 21 AR at 75. The ALJ cited to x-ray results dated near Plaintiff’s alleged onset date which showed 22 Plaintiff’s heart was within normal limits with mild pulmonary edema. Id. (citing id. at 926). The 23 ALJ found that Plaintiff did not experience any noteworthy cardiac events for nearly a year after 1 his alleged onset date. Id. (citing id. at 1248, 1464). The ALJ acknowledged that in May 2014 2 Plaintiff had complaints of syncope (loss of consciousness caused by cerebral hypoperfusion) 3 and underwent catheterization, but testing showed no significant abnormalities, only a mild 4 single vessel disease, and that his pulmonary edema has essentially resolved. Id. (citing id. at 5 738, 741-42, 915-16). Similarly, the ALJ acknowledged that Plaintiff had a myocardial infarction
6 in November 2014. Id. at 75. However, later that month Plaintiff was assessed as doing well with 7 no chest pains or other abnormalities. Id. (citing id. at 771). The ALJ concluded that the 8 treatment records reflect that Plaintiff recovered from his myocardial infarction and that he was 9 never extremely limited by his condition for an extended period of time. Id. As such, the ALJ 10 found the RFC adequately accommodated for his cardiovascular conditions.3 Id. 11 2. State Agency Non-Examining Consultants 12 Plaintiff disagrees with the ALJ’s decision to give great weight to the opinions of State 13 agency non-examining consultants rather than to Plaintiff’s treating providers. (Dkt. # 16 at 3.) 14 Plaintiff asserts this was harmful error because the State agency non-examining consultants did
15 not examine Plaintiff or review medical records submitted subsequent to their medical review. 16 (Id. at 5.) 17 Although the State agency non-examining consultants did not review all of the records in 18 this case, the ALJ had the opportunity to review the entire record and determined that their 19 opinions regarding Plaintiff’s RFC were consistent with the longitudinal record. AR at 77-78. 20
3 The ALJ also found that treatment records dated after his date last insured showed he maintained normal 21 functioning. Id. (citing, inter alia, id. at 1297 (noting that in December 2014 was generally good other than his thrombosis), 1464 (noting in June 2015 Plaintiff was assessed as improved)). The Court notes 22 some of these records also report that Plaintiff was experiencing episodes of chest pain, which the ALJ failed to mention. Id. However, any err in the ALJ’s characterization of these records is harmless as these 23 records are dated either after Plaintiff’s date last insured, or after Plaintiff had obtained advanced age and was deemed disabled. See Carmickle v. Commissioner of Social Security Administration, 533 F.3d 1155, 1162-63 (9th Cir. 2008). 1 Further, non-examining State agency medical and psychological consultants are highly qualified 2 and experts in the evaluation of Social Security disability claims and, while not binding, their 3 opinions must be considered. 20 C.F.R. §§ 404.1513a(b)(1), 416.913(b)(1). Although Plaintiff 4 may believe the ALJ should have afforded their opinions less weight, it is the role of the ALJ to 5 resolve conflicts in the medical opinion evidence. Where the evidence is susceptible to more than
6 one rational interpretation, it is the Commissioner’s that will be upheld. Burch v. Barnhart, 400 7 F.3d 676, 680-81 (9th Cir. 2005) (when the evidence is susceptible to more than one 8 interpretation, the Commissioner’s interpretation must be upheld if rational). Accordingly, 9 Plaintiff has not shown that the ALJ erred in affording great weight to the opinions of the State 10 agency non-examining consultants. 11 3. Ginger Evans, M.D. 12 Dr. Evans, Plaintiff’s treating physician, completed a cardiac impairment questionnaire 13 and a letter in April 2015. AR at 1242-47. Dr. Evans noted Plaintiff suffered from chest pain that 14 was precipitated by emotional stress and physical exertion. Id. at 1243. She estimated that in an
15 eight-hour workday, Plaintiff could sit for four hours and stand and/or walk for less than one 16 hour. Id. at 1244. Dr. Evans also opined Plaintiff could occasional lift and carry up to twenty 17 pounds. Id. She opined Plaintiff would need to take unscheduled breaks one to four times per day 18 and that he would be absent from work more than three times a month as a result of his 19 impairments. Id. at 1246. She concluded Plaintiff’s symptoms would preclude him from 20 functioning in a competitive work environment. Id. at 1247. 21 The ALJ assigned Dr. Evans’ opinion little weight. AR at 78. Specifically, the ALJ found 22 Dr. Evans’ opinion was highly inconsistent with the record, as the ALJ summarized and 23 discussed earlier in the decision. The ALJ found Dr. Evans’ opinion of such extreme limitations 1 was inconsistent with the lack of documented significant motor strength, gait, or sensation issues. 2 Id. The ALJ also found that although Plaintiff did experience a myocardial infarction, the record 3 showed a general absence of significant cardiovascular abnormalities, and that the record did not 4 show frequent documentation of objective findings consistent with the severity of symptoms 5 opined by Dr. Evans. Id. Lastly, the ALJ found Dr. Evans provided little support for her opinion
6 other than Plaintiff’s cardiovascular history. Id. 7 Plaintiff argues the ALJ erred in evaluating Dr. Evans’ opinion, because although the 8 ALJ provided string cites to exhibits that he found conflicted with Dr. Evans’ opinion, he did not 9 provide an explanation as to how they conflicted or why his interpretation of the evidence was 10 correct rather than Dr. Evans’ opinion. (Dkt. # 16 at 6.) Plaintiff’s argument is misplaced. The 11 ALJ found Dr. Evans’ opinion inconsistent with the record and specifically referenced his 12 summary of the inconsistencies earlier in the decision which detailed his interpretation of the 13 medical evidence. Id. at 78. While the ALJ could have been more specific with his citation to the 14 record in his evaluation of the medical opinion evidence, his earlier summary provided numerous
15 pin cites and failing to repeat those pin cites does not constitute error. Because the ALJ’s 16 interpretation of the evidence was rational, it must be upheld. Burch, 400 F.3d at 680-81. 17 Plaintiff also asserts that Dr. Evans’ opinion was consistent with that of a State agency 18 non-examining physician, Dr. Staley, because he opined Plaintiff’s myocardial injuries would 19 result in Plaintiff not having “a lot of cardiac reserve.” (Dkt. # 16 at 6.) However, as the 20 Commissioner notes, Dr. Staley reported that although Plaintiff would lack a lot of cardiac 21 reserve as a result of his myocardial injuries, he found that it “symptomatically appears that 22 claimant reports more symptoms related to spine than to heart.” AR at 340. Further, Dr. Staley 23 1 opined Plaintiff could perform light work in contrast to Dr. Evans’ opinion that he could only 2 perform sedentary work. 3 Lastly, Plaintiff argues that Dr. Evans’ updated assessment from 2017, which was 4 submitted to the Appeals Council and admitted into the record, is consistent with her earlier 5 assessment except that it further limited Plaintiff’s ability to work. (Dkt. # 16 at 7 (citing AR at
6 23-27).) Plaintiff asserts this assessment, which opined Plaintiff limitations existed as far back as 7 April 19, 2013, further erodes the evidentiary support of the ALJ’s decision. (Id.) Under Brewes 8 v. Commissioner of Social Security Administration, evidence considered for the first time by the 9 Appeals Council must be considered by the district court as part of the administrative record 10 when reviewing an ALJ’s decision for substantial evidence under sentence four. 682 F.3d 1157, 11 1163 (9th Cir. 2012). Dr. Evans’ 2017 assessment is substantially the same as her earlier 12 opinions, only it opines Plaintiff was even more impaired. This assessment does not change the 13 ALJ’s finding that the longitudinal record is inconsistent with the severity of Dr. Evans’ opinion 14 regarding Plaintiff’s impairments. Therefore, Dr. Evans’ updated assessment opining even more
15 severe impairments does not undermine the ALJ’s evaluation of Dr. Evans’ opinion. 16 Accordingly, the ALJ provided specific and legitimate reasons, supported by substantial 17 evidence, for assigning Dr. Evans’ opinions little weight. 18 4. Peter McGrath, M.D. 19 In 2015, Plaintiff’s cardiology provider, Dr. McGrath, opined that Plaintiff’s chronic 20 cardiovascular symptoms would make it difficult for him to function effectively in a competitive 21 work environment. AR at 1465. Dr. McGrath noted that Plaintiff first presented with 22 cardiovascular issues in 2011. Id. at 1464. Although Plaintiff experienced symptoms, he was 23 “otherwise stable” until 2014, when he suffered abrupt syncope while hiking. Id. Since this 1 episode, Plaintiff reported no further syncopal episodes and his symptoms have “improved 2 significantly and are now less concerning for him.” Id. 3 The ALJ assigned Dr. McGrath’s opinion little weight. AR at 78. First, the ALJ found Dr. 4 McGrath’s opinion regarding Plaintiff’s ability to work in a competitive work environment was 5 reserved for the Commissioner. Id. Further, the ALJ found that Dr. McGrath’s opinion was
6 inconsistent with the record, which does not document lasting functional abnormalities which 7 would limit Plaintiff as severely as opined. Id. The ALJ also found Dr. McGrath opined Plaintiff 8 had significantly improved, and there were not functional abnormalities during his examination 9 of Plaintiff. Id. 78-79. 10 Plaintiff argues the ALJ erred in finding Dr. McGrath’s opinion was inconsistent with the 11 medical record because his opinion was only inconsistent with the State agency non-examining 12 consultants’ opinions. (Dkt. # 16 at 7.) As discussed above, the ALJ reasonably assigned the 13 State agency non-examining consultants’ opinions great weight and therefore the inconsistency 14 of Dr. McGrath’s opinion with these opinions supports the ALJ’s evaluation of the evidence.
15 Further, Plaintiff’s implication that Dr. McGrath’s opinion was consistent with Dr. Evans’ 16 opinion and Mr. Malijan’s opinion is unpersuasive in establishing any harmful error as the ALJ 17 properly discounted these opinions. Therefore, any consistency with properly discounted 18 opinions does not undermine the ALJ’s evaluation of the evidence. 19 Plaintiff also argues that the ALJ could not disregard Dr. McGrath’s opinion simply 20 because it addressed an issue reserved to the Commissioner. (Dkt. # 16 at 8.) However, 21 Plaintiff’s ability to work is in fact an issue reserved to the Commissioner. 20 C.F.R. §§ 22 404.1527(d), 416.927(d). The ALJ’s comment therefore does not constitute error. Further, the 23 1 ALJ did not discount Dr. McGrath’s opinion solely on this basis. As discussed above, the ALJ 2 provided other specific and legitimate reasons for discounting his opinion. 3 Plaintiff also asserts the ALJ had a duty to recontact Dr. McGrath to clarify his opinion, 4 citing to SSR 96-5p (rescinded March 27, 2017), which pertains to the ALJ’s obligation to 5 recontact a treating source “if the evidence does not support a treating source’s opinion on any
6 issue reserved to the Commissioner and the adjudicator cannot ascertain the basis of the opinion 7 from the case record.” Here, however, the bases for Dr. McGrath’s opinions were clear. He 8 opined Plaintiff would be unable to work based on his chronic cardiovascular problems. As 9 discussed above, the ALJ discounted this opinion because it was inconsistent with the record. 10 There is no indication that the ALJ was uncertain of the basis for Dr. McGrath’s opinion or 11 otherwise found the record ambiguous. Thus, the ALJ was not required by SSR 96-5p to 12 recontact Dr. McGrath. Accordingly, the ALJ provided specific and legitimate reasons, 13 supported by substantial evidence, for assigning Dr. McGrath’s opinions little weight. 14 5. Edwin Malijan, R.P.T.
15 In order to determine whether a claimant is disabled, an ALJ may consider lay-witness 16 sources, such as testimony by nurse practitioners, physicians’ assistants, and counselors, as well 17 as “non-medical” sources, such as spouses, parents, siblings, and friends. See 20 C.F.R. § 18 404.1527(f). If an ALJ chooses to discount testimony of a lay witness, he must provide “reasons 19 that are germane to each witness,” and may not simply categorically discredit the testimony. 20 Dodrill, 12 F.3d at 919. 21 Mr. Malijan, Plaintiff’s physical therapist, provided a letter in 2016 that opined Plaintiff’s 22 capabilities were limited to a sedentary level and that he was unable to return to any type of 23 work. AR at 1487. Mr. Malijan also provided a spinal impairment questionnaire in 2016 that 1 opined, inter alia, Plaintiff could perform less than an hour of work in a seated position or in a 2 standing/walking position in an eight-hour workday, would need to be absent from work more 3 than three times in a month, and would need frequent unscheduled breaks in an eight-hour work 4 day. Id. at 1520-25. 5 The ALJ assigned Mr. Malijan’s opinion little weight. AR at 78. Similar to the ALJ’s
6 evaluation of Drs. Evans and McGrath’s opinions, the ALJ found Mr. Malijan’s opinion was 7 inconsistent with the record as discussed earlier in the ALJ’s decision. Id. The ALJ also noted 8 Mr. Malijan is not an acceptable medical source, which supported assigning his opinion lesser 9 weight. Id. 10 Plaintiff concedes that Mr. Malijan is not an acceptable medical source, but argues the 11 ALJ’s reasons for discounting his opinion, i.e. that it is inconsistent with the record, was not a 12 reasonable interpretation of the record. (Dkt. # 16 at 10.) As discussed above, the ALJ 13 reasonably found that an opinion such as Mr. Malijan, finding Plaintiff so severely limited, is 14 inconsistent with the record that did not document lasting functional abnormalities that would be
15 expected if Plaintiff were in fact that limited. While Plaintiff proposes an alternative 16 interpretation of the record, the Court declines to reweigh the evidence or substitute its judgment 17 for that of the Commissioner. Thomas, 278 F.3d at 954. Accordingly, the ALJ provided germane 18 reasons for discounting Mr. Malijan’s opinion. 19 B. The ALJ Did Not Err in the RFC Assessment 20 1. Legal Standards 21 “RFC is an assessment of an individual’s ability to do sustained work-related physical 22 and mental activities in a work setting on a regular and continuing basis. A ‘regular and 23 continuing basis’ means 8 hours a day, for 5 days a week, or an equivalent work schedule.” SSR 1 96-8p at 1. The RFC assessment must be based on all of the relevant evidence in the case record, 2 such as: medical history; the effects of treatment, including limitations or restrictions imposed 3 by the mechanics of treatment (e.g., side effects of medication); reports of daily activities; lay 4 activities; recorded observations; medical source statements; effects of symptoms, including 5 pain, that are reasonably attributed to a medically determinable impairment; evidence from work
6 attempts; need for structured living environment; and work evaluations. SSR 96-8p. 7 2. Mental Functioning4 8 Plaintiff argues the ALJ’s analysis regarding Plaintiff’s psychological functioning in the 9 RFC is unclear. (Dkt. # 16 a 12.) Plaintiff points to the ALJ’s assignment of little weight to the 10 opinion of Dr. Wingerson, Plaintiff’s treating psychiatrist, and some weight to the opinion of the 11 State agency non-examining psychological consultants. (Id.) Dr. Wingerson opined that Plaintiff 12 would be unable to sustain fulltime competitive work (AR at 1129-30) and the State agency non- 13 examining psychological consultants opined Plaintiff would have moderate limitations 14 interacting with the public and would have some difficulty in sustaining concentration
15 persistence and pace (id. at 325-26). 16 The ALJ’s analysis is not unclear. The ALJ found no showing of any noteworthy mental 17 abnormalities in Plaintiff’s treatment notes or upon mental status examinations. AR at 77 (citing 18 id. at 802, 833-34, 863, 866-68, 1321-22, 1384, 1408, 1444, 1474, 1531-32). The ALJ referenced 19 this finding when assigning only some weight to the State agency non-examining psychological 20 consultants’ opinions and when assigning little weight to Dr. Wingerson’s opinion. Id. at 78. The 21
22 4 Plaintiff also asserts the RFC fails to properly reject or include the physical limitations assessed by Plaintiff’s treating providers. (Dkt. # 16 at 11.) As discussed above, the ALJ properly discounted the 23 opinions of Plaintiff’s treating providers and therefore Plaintiff’s argument is based on assignments of error that the Court has rejected. 1 ALJ’s decision also notes that while Plaintiff had mild limitations with interacting with others, 2 he was able to spend time with others and had no trouble with authority figures. Id. at 71. 3 Further, the ALJ found the record did not indicate Plaintiff had conflicts with his medical 4 providers or that he had substantial communicative issues or anti-social behavior. Id. Therefore, 5 the ALJ’s analysis regarding Plaintiff’s psychological functioning in the RFC is clear.
6 Plaintiff also asserts the ALJ’s findings are contradicted by Mr. Malijan’s observations of 7 Plaintiff’s anger issues and Plaintiff’s testimony regarding his reaction to seeing stories 8 concerning child abuse. (Dkt. # 16 at 12.) As discussed above, the ALJ reasonably discounted 9 Mr. Malijan’s opinion. The ALJ also discounted Plaintiff’s testimony, a finding Plaintiff did not 10 challenge. 11 3. “Low Stress Environment” and “Variable Pace” 12 Plaintiff also takes issue with the ALJ’s finding that Plaintiff would need a “low stress 13 environment defined as occasional changes in the workplace setting.” (Dkt. # 16 at 12-13.) 14 Plaintiff asserts that the ALJ’s definition has no medical support, and that because the State
15 agency non-examining psychologist did not provide a definition for “low stress environment,” 16 the ALJ erred in providing a “lay extrapolation” of functional ability. (Id.) 17 Despite Plaintiff’s assertion that there is no medical support for the ALJ’s use of the term 18 “low stress environment,” “there is no requirement in the regulations for a direct correspondence 19 between an RFC finding and a specific medical opinion on the functional capacity in question.” 20 Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012). Indeed, the “final responsibility” for 21 decisions such as the assessment of an individual’s RFC is reserved to the Commissioner. SSR 22 96–5p. Plaintiff further argues that because SSR 85-15 provides that people have individualized 23 responses to stress, it is unclear if the ALJ’s definition of “low stress environment” 1 accommodated Plaintiff’s individualized threshold to work place stress. (Dkt. # 16 at 13 (citing 2 to SSR 85-15, 1985 WL 56857 at *6 (1985).) However, SSR 85-15 also states that it “is not 3 intended to set out any presumptive limitations for disorders, but to emphasize the importance of 4 thoroughness in evaluation on an individualized basis.” SSR 85-15, 1985 WL 56857 at *6 5 (1985). Here, the ALJ reviewed the record as a whole, obtained VE testimony regarding which
6 jobs would meet the RFC’s low stress environment requirement, and rationally found that there 7 were jobs in the national economy that Plaintiff could have performed. Because the ALJ’s 8 interpretation is rational, it must be upheld. Burch, 400 F.3d at 680-81. 9 Plaintiff also asserts the ALJ erred in finding Plaintiff would need “work that allows for a 10 variable pace” because he did not provide specifics of what this means in an eight-hour workday, 11 five-day workweek. (Dkt. # 16 at 13-14.) Plaintiff asserts it therefore would be difficult to 12 discern how such a limitation would impact the available occupations. (Id. at 13.) Although 13 Plaintiff argues the ALJ did not provide enough specifics regarding this term, Plaintiff merely 14 proposes that there are different interpretations of “variable pace.” The ALJ and the VE
15 determined that this limitation would require a job that did not have to be performed at a constant 16 pace, such as an assembly line position. AR at 268. The VE used that parameter to identify jobs 17 which occupations an individual with Plaintiff’s RFC could perform, which the ALJ reasonably 18 relied on. Because the ALJ’s interpretation is rational, it must be upheld. Burch, 400 F.3d at 680- 19 81. 20 4. Res judicata 21 Lastly, the parties dispute the role of res judicata in this matter. The Commissioner 22 argues the presumption of continuing nondisability applies in this matter based on the previous 23 ALJ’s finding of nondisability, and asserts the ALJ’s adoption of the previous RFC was proper. 1 (Dkt. # 17 at 14.) Plaintiff argues the presumption of nondisability was rebutted, which required 2 the ALJ to adopt certain findings from the previous decision unless new and material evidence 3 was presented. (Dkt. 18 at 5 (citing, inter alia, Chavez, 844 F.2d at 694).) 4 Under res judicata, an ALJ’s finding that a claimant is not disabled “create[s] a 5 presumption that [the claimant] continued to be able to work after that date.” Miller v. Heckler,
6 770 F.2d 845, 848 (9th Cir. 1985). However, the presumption does not apply if there are 7 “changed circumstances.” Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 1985). “Changed 8 circumstances” include such differences as an increase in the severity of impairment, a change in 9 age category, or the existence of a new impairment. Id.; Chavez v. Bowen, 844 F.2d 691, 693 10 (9th Cir. 1988); Gregory v. Bowen, 844 F.2d 664, 666 (9th Cir. 1988). 11 In the first decision, the ALJ found Plaintiff had the following severe impairments: 12 coronary artery disease; left ventricular thrombosis; inguinal hernia; status post apical 13 myocardial infarction with Dressler’s syndrome and pericarditis; alcohol dependence; cocaine 14 use disorder; depressive disorder NOS; post-traumatic stress disorder; mild degenerative disc
15 disease of lumbar spine. AR at 280. In the second decision, the ALJ noted the first ALJ decision 16 created a presumption of continuing nondisability, but found changed circumstances rebutted the 17 presumption. Id. at 70. The ALJ found Plaintiff had the following severe impairments: coronary 18 artery disease, left ventricular thrombosis, degenerative disc disease, depression, anxiety, and 19 substance abuse. 20 Plaintiff asserts that because the ALJ adopted the RFC finding from the previous 21 decision, the ALJ was required to explain what new and material evidence led him to reject the 22 prior ALJ’s findings regarding Plaintiff’s severe impairments. (Id.) Plaintiff asserts this 23 constituted harmful error because had the ALJ applied res judicata to the prior ALJ’s severe 1 impairment findings, the ALJ would have “had” to include limitations in the RFC assessment 2 regarding Plaintiff’s inguinal hernia, status post myocardial infraction with Dressler’s syndrome 3 and pericarditis, alcohol dependence, and cocaine use disorder. (Id.) 4 Although Plaintiff asserts the ALJ would have “had” to include limitations regarding the 5 additional severe limitations found by the previous ALJ, Plaintiff does not identifiy any specific
6 limitations. Here, the ALJ adopted the RFC assessment from the previous ALJ, who made the 7 RFC determination after finding Plaintiff’s inguinal hernia, status post myocardial infraction 8 with Dressler’s syndrome and pericarditis, alcohol dependence, and cocaine use disorder to be 9 severe impairments. Therefore, even if the ALJ had found Plaintiff’s additional impairments 10 severe, the RFC assessment would have been the same. An error is harmless “where it is 11 inconsequential to the [ALJ’s] ultimate nondisability determination.” Id. at 1115 (quotation and 12 citation omitted). Accordingly, any error in not adopting the previous ALJ’s step-two findings 13 regarding Plaintiff’s severe impairments is harmless, and the ALJ did not err in assessing 14 Plaintiff’s RFC determination.
15 C. The ALJ Did Not Err in Replying on the VE’s Testimony 16 At step five of the sequential disability evaluation process, the ALJ must show there are a 17 significant number of jobs in the national economy the claimant is able to perform. Tackett v. 18 Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). In determining whether a claimant is disabled, an 19 ALJ may consult various sources, including the DOT and a VE. Lamear v. Berryhill, 865 F.3d 20 1201, 1205 (9th Cir. 2017). 21 “Presumably, the opinion of the VE would comport with the DOT’s guidance.” If, 22 however, the VE’s opinion that the claimant can work “conflicts with, or seems to conflict with, 23 the requirements listed in the [DOT],” the ALJ has an obligation to ask the VE to reconcile the 1 conflict before relying on the VE’s testimony. Gutierrez v. Colvin, 844 F.3d 804, 807 (9th Cir. 2 2016) (citing Social Security Ruling (“SSR”) 00-4p, 2000 WL 1898704, at *2 (2000)); see also 3 Massachi v. Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 2007). The ALJ’s obligation to reconcile a 4 conflict is triggered only where the conflict is “obvious or apparent.” Gutierrez, 844 F.3d at 808. 5 To be an obvious or apparent conflict, the VE’s testimony “must be at odds with the [DOT’s]
6 listing of job requirements that are essential, integral, or expected.” Id. 7 In this case, the ALJ asked the VE to consider a hypothetical individual who, in relevant 8 part, would need to work “in a low stress environment” and that “would allow for a variable 9 pace.” AR at 268. The VE testified the hypothetical individual could perform the jobs of 10 marker5, bottle packer, and cafeteria attendant. Id. at 269. The VE also testified that even if the 11 hypothetical individual was further limited to occasional performing all postural and given a sit- 12 stand option, that individual could perform the jobs of cashier II and rental clerk. Id. The ALJ did 13 not ask the VE whether her testimony was consistent with the DOT. In his decision, the ALJ 14 relied on the VE’s testimony and found Plaintiff was not disabled at any time through his date
15 last insured, June 30, 2014, but that he was disabled in February 2015 after turning 55 which 16 changed his age category. AR at 80-82. 17 Plaintiff argues the ALJ erred in relying on the VE’s testimony because he did not 18 affirmatively ask the VE if the evidence provided was consistent with the DOT. (Dkt. # 16 at 14- 19 17.) Plaintiff asserts that this alleged error was harmful because neither the ALJ nor the VE 20 understood what the term “variable pace” meant, or if that term was consistent with the 21 descriptions of the jobs contained in the DOT. (Id. at 16.) Plaintiff also asserts that the VE did 22 23
5 The ALJ identifies this job as “monitor” in his decision, however, the VE testified that it was “marker.” 1 not confirm that the term “low stress” is consistent with the DOT descriptions of the jobs 2 identified. (Id.) 3 The Commissioner appears to concede that the ALJ failed to affirmatively ask the VE 4 whether there was a conflict with the DOT, but argues this error was harmless because there is 5 no apparent conflict between the VE’s testimony and the DOT. (Dkt. # 17 at 16.) The
6 Commissioner asserts that the ALJ and VE discussed the meaning of “variable pace” and 7 concluded it was something that did not require a constant pace, such as an assembly line 8 position. (Dkt. # 17 at 16 (citing AR at 268).) The Commissioner also asserts that the VE 9 proposed the job of carwash attendant, but testified that she was not sure it was a “low stress” 10 job, and the ALJ therefore did not include carwash attendant in his decision. (Id. (citing AR at 11 80-81, 296).) 12 The Court finds the Commissioner’s argument persuasive. Although Plaintiff asserts 13 there is no testimony confirming that these terms are consistent with the DOT job descriptions, 14 Plaintiff does not identify anything within the DOT job descriptions that indicates any conflict.
15 Hence, because there was no conflict for the ALJ to reconcile, Plaintiff has not shown the ALJ 16 committed harmful error. See Massachi, 486 F.3d at 1154 n.19 (an ALJ’s failure to ask the VE to 17 reconcile a purported conflict between her testimony and the DOT is harmless where there is no 18 conflict); see also Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012) (“The burden is on the 19 party claiming error to demonstrate not only the error, but also that it affected [her] ‘substantial 20 rights.’”). 21 V. CONCLUSION 22 For the foregoing reasons, the Commissioner’s final decision is AFFIRMED and this 23 case is DISMISSED with prejudice. 1 Dated this 6th day of January, 2020. 2 3 A 4 MICHELLE L. PETERSON United States Magistrate Judge 5 6
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