Goodman v. Colvin

Filing 20

ORDER - The final decision of the Commissioner of Social Security is AFFIRMED. ORDERED that the Clerk of Court shall enter judgment accordingly and terminate this case. Signed by Senior Judge James A Teilborg on 8/9/16. (EJA)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Lance Nelson Goodman,
Plaintiff,

10
11

ORDER

v.

12

No. CV-15-00807-PHX-JAT

Carolyn W. Colvin, Acting Commissioner
of Social Security,

13

Defendant.

14
15

Pending before the Court is Plaintiff Lance Nelson Goodman’s appeal from the

16

Social Security Commissioner’s denial of his application for disability insurance benefits

17

under Title II of the Social Security Act. The Court now rules on Plaintiff’s appeal.

18

I.

Background

19

A.

Procedural Background

20

On February 9, 2012, Plaintiff filed an application for disability insurance benefits

21

under Title II of the Social Security Act, alleging that he had been unable to work since

22

November 30, 2010. (Tr. 145).1 Plaintiff’s claims were initially denied on July 17, 2012,

23

(Tr. 92), and upon reconsideration on January 22, 2013, (Tr. 98). Thereafter, Plaintiff

24

timely requested a hearing, (Tr. 101), which was conducted by Administrative Law Judge

25

(“ALJ”) Joan G. Knight on June 25, 2013 in Phoenix, Arizona, (Tr. 34). On August 30,

26

2013, the ALJ issued a decision finding that Plaintiff suffered from ventricular

27
28

1

Citations to “Tr.” are to the certified administrative transcript of record.
(Doc. 13).

1

tachycardia with ICD implant, status post left shoulder repair of rotator cuff tear and

2

bicep tenosynovitis, and obesity. (Tr. 17). However, the ALJ found that Plaintiff was not

3

disabled under the Social Security Act because he retained the Residual Functional

4

Capacity (“RFC”) to perform jobs that exist in significant numbers in the national

5

economy. (Tr. 26). Accordingly, the ALJ rendered an unfavorable decision denying

6

Plaintiff disability insurance benefits. (Tr. 26–27).2

7

After Plaintiff’s request for review of this decision by the Social Security

8

Administration Appeals Council was denied on March 19, 2015, (Tr. 1, 5), he

9

commenced this action in Federal Court on May 4, 2015, (Doc. 1). Plaintiff appeals the

10

final decision of the ALJ under Title 42 of the United States Code Section 405(g),

11

alleging “that the denial of his disability claim is not supported by substantial

12

evidence[.]” (Id. at 2). In Plaintiff’s opening brief (the “Brief”), Plaintiff argues that the

13

ALJ erred by: 1) improperly finding Plaintiff’s mental impairments were non-severe,

14

resulting in the omission of any mental work-related limitations from Plaintiff’s RFC;

15

2) making an improper credibility finding; and 3) relying on vocational expert (“VE”)

16

testimony inconsistent with the Dictionary of Occupational Titles (“DOT”). (Doc. 14 at

17

3). Accordingly, Plaintiff asks that the Court reverse the denial of his claim, and remand

18

for further administrative proceedings. (Doc. 1 at 2). In opposition, Defendant filed a

19

Response Brief contending that “[s]ubstantial evidence supports the ALJ’s decision that

20

Plaintiff is not disabled under the Social Security Act.” (Doc. 17 at 12). Accordingly,

21

Defendant asks that the Court “affirm the ALJ’s decision.” (Id.)

22

B.

23

Plaintiff was born on December 31, 1959 and lives with his wife. (Tr. 36, 198).

Plaintiff’s Background

24
2

25
26
27
28

After examining the certified administrative transcript of record as well as the
documents e-filed by the parties in the instant appeal, the Court notes there are two
inconsequential discrepancies between the dates stated in the ALJ’s decision and the
dates indicated in the rest of the record. Specifically, in the section of its decision entitled
‘Jurisdiction and Procedural History,’ the ALJ asserts that Plaintiff’s claim was initially
denied on July 16, 2012, (Tr. 14), whereas the record indicates that this claim was
actually denied a day later on July 17, 2012, (Tr. 92). Further, the ALJ attests that
Plaintiff’s claim was denied upon reconsideration on January 1, 2013, (Tr. 14), while the
record states that this claim was denied on reconsideration on January 22, 2013, (Tr. 98).
-2-

1

Although he did not graduate high school, Plaintiff does have his GED. (Tr. 36–37).

2

Plaintiff also completed vocational school training in auto mechanics, (Tr. 37), but “has

3

no further education or specialized job training[,]” (Tr. 222). Plaintiff previously worked

4

in masonry since 1988, serving as a mason tender, a masonry operator, and a laborer.

5

(Tr. 163). However, Plaintiff contends that he “can no longer do this type of work”

6

because of his medical conditions. (Tr. 174). Accordingly, Plaintiff “has been unable to

7

sustain gainful employment since November 30, 2010,” the date on which he was laid off

8

from his job in the construction industry. (Tr. 37, 222).

9

Currently, Plaintiff does not have any income, and receives public-assistance in

10

the form of food stamps. (Doc. 2 at 1–2). On an average day, Plaintiff watches between

11

twelve to fifteen hours of television, eats, goes for short walks, plays board games, and

12

uses his computer. (Tr. 41, 198, 316). Plaintiff does not grocery shop or do any household

13

chores, (Tr. 199), but does prepare meals for himself, (Tr. 280). Plaintiff can also drive,

14

but “not long periods.” (Tr. 316).3 Alleging that his injuries and conditions affect

15

“virtually every aspect” of his day, Plaintiff relies on his wife to assist him with most

16

tasks and contends that he spends the majority of his time “in the house due to limited

17

mobility and range of motion.” (Tr. 196). Nevertheless, Plaintiff is able to care for his

18

basic hygiene and bathe himself. (Tr. 41). Plaintiff states that “he has no friends,” and

19

that he tries “to refrain from seeing people.” (Tr. 316). Now, he primarily only interacts

20

with his wife. (Tr. 280).

21

C.

22

On June 25, 2013, Plaintiff appeared before the ALJ regarding his alleged

Plaintiff’s Medical Background

23
24
25
26
27
28

3

There are multiple discrepancies between Plaintiff’s first and second Exertional
Daily Activities Questionnaires. Plaintiff’s first Exertional Daily Activities
Questionnaire, dated May 28, 2012, indicates he sleeps four to five hours a day, and naps
two or three times daily. (Tr. 186). However, in Plaintiff’s second Exertional Daily
Activities Questionnaire, dated November 8, 2012, Plaintiff indicated that he is sleep
deprived, does not nap, and only sleeps for three or four hours. (Tr. 199). When asked
how far he can drive at one time, Plaintiff indicates in the first Exertional Daily Activities
Questionnaire that he has to get out of the car if he drives “more than one hour or so.”
(Tr. 186). However, in response to the same question in the second questionnaire,
Plaintiff states, “I can not [sic] sit for more than 20 minetes [sic] at a time.” (Tr. 199).
-3-

1

disability of cardiac problems, shoulder condition, depression, and substance abuse.

2

(Tr. 34–57). In regard to Plaintiff’s alleged heart condition, Plaintiff was admitted for

3

ventricular tachycardia, due to cocaine and alcohol abuse, in November of 2010.

4

(Tr. 239–40). As a result of this condition, Plaintiff had surgery to install an implantable

5

cardioverter defibrillator (“ICD”) “for secondary prevention in the setting of prior

6

cocaine and alcohol abuse.” (Tr. 239). Plaintiff denied “any cardiac complaints” at his

7

follow-up in December of 2010, (Tr. 240), and did not return for treatment until March

8

2011, at which time he was readmitted to the hospital as a result of his ICD discharging

9

multiple times, (Tr. 246, 253). At his follow-up appointments in April and July of 2011,

10

Plaintiff reported that he was doing much better and had no further ICD discharges.

11

(Tr. 237–38). Although Plaintiff presented in September of 2011 with atypical chest pain,

12

Plaintiff’s ICD had not discharged. (Tr. 236). In October of 2011, Plaintiff’s stress

13

echocardiogram indicated Plaintiff had “fair exercise tolerance” for his age and

14

concluded that there was “no 2D echocardiographic evidence of inducible ischemia to

15

achieve[] workload.” (Tr. 332).

16

Following these visits, Plaintiff did not return to see a cardiologist until July of

17

2012, where it was noted that Plaintiff had not had any further ICD discharges but did

18

have some fatigue after eating, “likely a side effect” of his prescribed medication.

19

(Tr. 325). From July 2012 until the date of his hearing in June 2013, Plaintiff did not

20

return for any follow up appointments with his cardiologists. (Tr. 22). However, Plaintiff

21

did go to the emergency room “with a complaint of a possible near syncopal episode.”

22

(Tr. 439). At this visit, Plaintiff refused admission against medical advice after his “chest

23

x-ray revealed ‘no evidence of active pulmonary disease,’ an EKG revealed normal sinus

24

rhythm and no acute ST changes were noted.” (Tr. 22) (citations omitted). Plaintiff stated

25

at his hearing that he has unpredictable attacks every day, (Tr. 42), where he starts to feel

26

dizzy and feels blood running through his chest until the defibrillator “settles it down[,]”

27

(Tr. 47).4

28
4

One reviewing physician has attributed these symptoms as possible side effects
-4-

1

In regard to his shoulder condition, Plaintiff had elective arthroscopic surgery to

2

repair his left rotator cuff in November of 2011. (Tr. 243). At his follow up appointment

3

in March 2012, Plaintiff reported his symptoms were better, rated his pain with “heavy

4

activity” as only 1/10, and assessed his satisfaction with the surgery at 8/10. (Tr. 458). At

5

this time, the reviewing physician noted Plaintiff’s shoulder was “getting better,” and that

6

other than “occasional pain with heavy activity,” Plaintiff “is very happy.” (Tr. 458).

7

Following this appointment, Plaintiff did not return for any subsequent treatment until

8

May 2013, shortly before his hearing before the ALJ. (Tr. 457). At this visit, Plaintiff

9

indicated that he “fe[lt] like his symptoms ha[d] worsened recently,” (Tr. 457), with pain

10

aggravated by lifting and reaching motions, (Tr. 454). However, a reviewing physician

11

noted that Plaintiff’s postoperative rotator cuff tear “appears stable.” (Tr. 309). Plaintiff

12

specified at the ALJ proceedings that he now has “arthritis in [his] shoulders and [his]

13

neck,” and needs back surgery as a result of chronic back pain. (Tr. 43, 307). Plaintiff

14

was prescribed Percocet for the joint pain in his shoulder region. (Tr. 368).

15

Plaintiff also alleges to suffer additional impairment as a result of depression and

16

anxiety, but has “never sought mental health treatment” at any out-patient or in-patient

17

psychiatric facility. (Tr. 316). In the past, Plaintiff’s primary care provider and

18

cardiologists consistently noted that Plaintiff had a “normal mood and affect.” (Tr. 18).

19

Although Plaintiff contends he began to have difficulty with depression over the course

20

of the past few years, (Tr. 315), the ALJ indicated that he was “never diagnosed until his

21

primary care provider noted that he presented with disability paperwork,” (Tr. 18).

22

Plaintiff attributes his depression to his medical issues, specifically because he has been

23

unable to work, has gained weight as a result of his inability to do physical activities, and

24

because his health continues to decline. (Tr. 281). Plaintiff states he is moody and that he

25

has “just phased [himself] out of everything over the years.” (Tr. 315). While Plaintiff

26

has contemplated suicide in the past, he has “not recently,” nor has he ever attempted to

27
28

due to medication. (Tr. 309). Plaintiff himself has acknowledged that, “[t]he blood
pressure medicine may be why I’m blacking out.” (Tr. 315).
-5-

1

take his life. (Tr. 315). Plaintiff’s primary care provider prescribed buspirone for

2

Plaintiff’s nerves and anxiety. (Tr. 372).

3

While Plaintiff’s medical record illustrates that he has a history of alcohol abuse,

4

Plaintiff stated at the ALJ proceedings on June 25, 2013 that he only occasionally drinks

5

alcohol, “not even once a month,” due to his high blood pressure. (Tr. 45). However,

6

when Plaintiff’s risk factors were reviewed at an appointment in May of 2013, Plaintiff

7

confirmed that he drinks “six cans of beer” per week. (Tr. 455). Plaintiff also has a

8

history of cocaine, marijuana and methamphetamine use, but contends that “his addiction

9

is in the past.” (Tr. 226).5 In regard to his cocaine use, Plaintiff stated at the hearing

10

before the ALJ that he has been “clean and sober for two and a half years.” (Tr. 44).

11

Regarding the ALJ’s question of whether drugs and alcohol were part of Plaintiff’s

12

lifestyle today, Plaintiff responded, “You couldn’t pay me to do either one right now.”

13

(Tr. 44). However, Plaintiff’s medical record demonstrates that he was drinking alcohol

14

and smoking marijuana prior to being admitted to the hospital in March of 2011. (Tr. 62).

15

Further, Plaintiff’s testimony at the proceedings before the ALJ is inconsistent with his

16

medical record, as illustrated by the following exchange between the ALJ and Plaintiff:

17

Q:
Since November 2010, have you used any other drugs
not prescribed by your doctors?

18

A:
No ma’am, high blood pressure medicine and
painkillers.

19
20
21

Q:
The records indicate, though, in March 2011, you . . .
tested positive for alcohol and marijuana. Any use of
marijuana since November 2010?

22

A:

23
24
25
26
27
28

No.

(Tr. 46).
In addition to the medical conditions listed above, Plaintiff has chronic tinnitus
5

In addition to an incarceration for a DUI at age 19, (Tr. 281), Plaintiff was once
arrested “when [he] was caught with 800 pounds of marijuana in Arkansas[,]” (id.) As a
result, Plaintiff spent time in prison in Arkansas. (Id.) Plaintiff was also “caught with raw
cocaine,” for which he spent time in the Maricopa County prison facility. (Tr. 316).
Plaintiff is not currently “under any legal sanctions” or on probation for any drug related
crimes. (Tr. 157, 281).
-6-

1

associated with hearing loss. (Tr. 309). However, this condition “has not been alleged to

2

cause any significant impairment of his ability to conduct work activity,” (Tr. 22), and,

3

on physical examination, Plaintiff’s ears were found to be “normal,” (Tr. 232). Plaintiff

4

has also been diagnosed as morbidly obese. (Tr. 309).

5

II.

Legal Standard

6

The ALJ’s decision to deny benefits will be overturned “only if it is not supported

7

by substantial evidence or is based on legal error.” Magallanes v. Bowen, 881 F.2d 747,

8

750 (9th Cir. 1989) (quotation omitted). “Substantial evidence” means more than a mere

9

scintilla, but less than a preponderance; it is such “relevant evidence which a reasonable

10

person might accept as adequate to support a conclusion.” Reddick v. Chater, 157 F.3d

11

715, 720 (9th Cir. 1998).

12

In determining whether there is substantial evidence to support a decision, the

13

Court considers the record as a whole, weighing both the evidence that supports the

14

ALJ’s conclusions and the evidence that detracts from the ALJ’s conclusions. Reddick,

15

157 F.3d at 720; see also Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (“The

16

inquiry here is whether the record, read as a whole, yields such evidence as would allow a

17

reasonable mind to accept the conclusions reached by the ALJ.” (citation omitted)).

18

“Where evidence is susceptible of more than one rational interpretation, it is the ALJ’s

19

conclusion which must be upheld; and in reaching his findings, the ALJ is entitled to

20

draw inferences logically flowing from the evidence.” Gallant, 753 F.2d at 1453

21

(citations omitted); see Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th

22

Cir. 2004). This is because “[t]he trier of fact and not the reviewing court must resolve

23

conflicts in the evidence, and if the evidence can support either outcome, the court may

24

not substitute its judgment for that of the ALJ.” Matney v. Sullivan, 981 F.2d 1016, 1019

25

(9th Cir. 1992); see Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 1990).

26

The ALJ is responsible for resolving conflicts in medical testimony, determining

27

credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th

28

Cir. 1995). Thus, if on the whole record before the Court, substantial evidence supports

-7-

1

the Commissioner’s decision, the Court must affirm it. See Hammock v. Bowen, 879 F.2d

2

498, 501 (9th Cir. 1989); see also 42 U.S.C. § 405(g). On the other hand, the Court “may

3

not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue,

4

495 F.3d 625, 630 (9th Cir. 2007) (quotation omitted).

5

Notably, the Court is not charged with reviewing the evidence and making its own

6

judgment as to whether Plaintiff is or is not disabled. Rather, the Court’s inquiry is

7

constrained to the reasons asserted by the ALJ and the evidence relied upon in support of

8

those reasons. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003).

9

A.

Definition of Disability

10

To qualify for disability benefits under the Social Security Act, a claimant must

11

show that, among other things, he is “under a disability.” 42 U.S.C. § 423(a)(1)(E). The

12

Social Security Act defines “disability” as the “inability to engage in any substantial

13

gainful activity by reason of any medically determinable physical or mental impairment

14

which can be expected to result in death or which has lasted or can be expected to last for

15

a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). A person is:

16
17
18
19

under a disability only if his physical or mental impairment or
impairments are of such severity that he is not only unable to
do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of
substantial gainful work which exists in the national
economy.
42 U.S.C. § 423(d)(2)(A).

20

Disability has “a severity and durational requirement for recognition under the

21

[Social Security] Act that accords with the remedial purpose of the Act.” Flaten v. Sec’y

22

of Health & Human Servs., 44 F.3d 1453, 1459 (9th Cir. 1995). “A claimant bears the

23

burden of proving that an impairment is disabling.” Matthews v. Shalala, 10 F.3d 678,

24

680 (9th Cir. 1993) (quoting Miller v. Heckler, 770 F.2d 845, 849 (9th Cir. 1985)). “The

25

mere existence of an impairment is insufficient proof of a disability.” Matthews, 10 F.3d

26

at 680 (citing Sample v. Schweiker, 694 F.2d 639, 642–43 (9th Cir. 1982)). Rather, “[t]he

27

applicant must show that he is precluded from engaging in not only his ‘previous work,’

28

but also from performing ‘any other kind of substantial gainful work’ due to such
-8-

1

impairment.” Id. (quoting 42 U.S.C. § 423(d)(2)(A)).

2

B.

3

The Social Security regulations set forth a five-step sequential process for

4

evaluating disability claims. 20 C.F.R. § 404.1520(a)(4); see also Reddick, 157 F.3d at

5

721. A finding of “not disabled” at any step in the sequential process will end the inquiry.

6

20 C.F.R. § 404.1520(a)(4). The claimant bears the burden of proof at the first four steps,

7

but the burden shifts to the Commissioner at the final step. Reddick, 157 F.3d at 721. The

8

five steps are as follows:

9
10

Five-Step Evaluation Process

First, the ALJ determines whether the claimant is “doing substantial gainful
activity.” 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled.

11

Second, if the claimant is not gainfully employed, the ALJ next determines

12

whether the claimant has a “severe medically determinable physical or mental

13

impairment.” 20 C.F.R. § 404.1520(a)(4)(ii). To be considered severe, the impairment

14

must “significantly limit[] [the claimant’s] physical or mental ability to do basic work

15

activities.” 20 C.F.R. § 404.1520(c). Basic work activities are the “abilities and aptitudes

16

to do most jobs,” such as lifting, carrying, reaching, understanding, carrying out and

17

remembering simple instructions, responding appropriately to co-workers, and dealing

18

with changes in routine. 20 C.F.R. § 404.1521(b). Further, the impairment must either

19

have lasted for “a continuous period of at least twelve months,” be expected to last for

20

such a period, or be expected “to result in death.” 20 C.F.R. § 404.1509 (incorporated by

21

reference in 20 C.F.R. § 404.1520(a)(4)(ii)). The “step-two inquiry is a de minimis

22

screening device to dispose of groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290

23

(9th Cir. 1996). If the claimant does not have a severe impairment, then the claimant is

24

not disabled. 20 C.F.R. § 404.1520(c).

25

Third, having found a severe impairment, the ALJ next determines whether the

26

impairment “meets or equals” one of the impairments listed in the regulations. 20 C.F.R.

27

§ 404.1520(a)(4)(iii). If so, the claimant is found disabled without further inquiry into the

28

claimant’s age, education, and work experience. 20 C.F.R. § 404.1520(d). If not, before

-9-

1

proceeding to the next step, the ALJ will make a finding regarding the claimant’s RFC

2

“based on all the relevant medical and other evidence in [the] case record.” 20 C.F.R.

3

§ 404.1520(e). A claimant’s RFC is the most he can still do despite the effects of all the

4

claimant’s medically determinable impairments, including those that are not severe. 20

5

C.F.R. § 404.1545(a)(1).

6

At step four, the ALJ determines whether, despite the impairments, the claimant

7

can still perform “past relevant work.” 20 C.F.R. § 404.1520(a)(4)(iv). To make this

8

determination, the ALJ compares its “residual functional capacity assessment . . . with the

9

physical and mental demands of [the claimant’s] past relevant work.” 20 C.F.R.

10

§ 404.1520(f). If the claimant can still perform the kind of work he previously did, the

11

claimant is not disabled. 20 C.F.R. § 1520(a)(iv). Otherwise, the ALJ proceeds to the

12

final step.

13

At the final, fifth step, the ALJ determines whether the claimant “can make an

14

adjustment to other work” that exists in the national economy. 20 C.F.R.

15

§ 404.1520(a)(4)(v). In making this determination, the ALJ considers the claimant’s RFC

16

and his “age, education, and work experience.” 20 C.F.R. § 404.1520(g)(1). If the

17

claimant can perform other work, he is not disabled. 20 C.F.R. § 404.1520(a)(4)(v). If the

18

claimant cannot perform other work, he will be found disabled.

19

In evaluating the claimant’s disability under this five-step process, the ALJ must

20

consider all evidence in the case record. See 20 C.F.R. § 404.1520(a)(3); 20 C.F.R.

21

§ 404.1520b. This includes medical opinions, records, self-reported symptoms, and third-

22

party reporting. See 20 C.F.R. § 404.1527; 20 C.F.R. § 404.1529; SSR 06–3p, 71 Fed.

23

Reg. 45593-03.

24

C.

25

In step one of the sequential evaluation process, the ALJ found that Plaintiff had

26

not engaged in substantial gainful activity since his alleged onset date of November 30,

27

2010. (Tr. 16). At step two, the ALJ concluded that Plaintiff had the following severe

28

medically determinable impairments: “ventricular tachycardia with ICD implant; status

The ALJ’s Evaluation under the Five-Step Process

- 10 -

1

post left shoulder repair of rotator cuff tear and bicep tenosynovitis; and obesity.”

2

(Tr. 17). The ALJ deemed these impairments “severe” because they had caused and

3

would continue to cause “more than minimal work-related functional limitations.” (Id.)

4

At step three, the ALJ determined that Plaintiff’s impairments, singly and in combination,

5

did not meet or medically equal the severity of the impairments listed in the Social

6

Security regulations. (Tr. 19).

7

Before moving on to step four, the ALJ conducted an RFC determination after

8

careful consideration of the entire record, including Plaintiff’s testimony and the

9

objective medical evidence. (Tr. 20). The ALJ found that Plaintiff “has the residual

10

functional capacity to perform light work.” (Id.) Consequently, the ALJ stated that:

11

[T]he claimant is able to occasionally lift and carry 20
pounds, frequently lift and carry 10 pounds, and is unlimited
in his ability to push or pull other than for weight limits
suggested. He can sit, or stand/walk each activity for about 6
out of 8 hours, with normal breaks. The claimant is also able
to occasionally crawl, but should never be required to climb
ladders, ropes, or scaffolds, and can frequently climb ramps,
stairs, stoop, kneel and crouch. He can occasionally reach
overhead with the nondominant left upper extremity. He must
avoid concentrated exposure to hazards including moving
machinery and unprotected heights.

12
13
14
15
16
17

(Id.)

18

At step four, the ALJ found that Plaintiff could not perform “any past relevant

19

work.” (Tr. 25). Finally, the ALJ concluded at step five that based on Plaintiff’s RFC,

20

age, education, and work experience, Plaintiff could perform significant numbers of jobs

21

existing in the national economy including fast food worker, cashier, and car wash

22

attendant. (Tr. 25–26). Consequently, the ALJ found that Plaintiff was not disabled under

23

the Social Security Act. (Tr. 26).

24

III.

Analysis

25

Plaintiff makes three main arguments for why the Court should set aside the ALJ’s

26

decision. Specifically, Plaintiff asserts that the ALJ committed the following errors:

27

1) improperly finding Plaintiff’s mental impairments were non-severe at step two,

28

resulting in the inappropriate omission of any mental work-related limitations from

- 11 -

1

Plaintiff’s RFC; 2) making an improper credibility finding by failing to consider

2

Plaintiff’s “stellar” work record; and 3) relying on VE testimony inconsistent with the

3

DOT without explaining the inconsistency. (Doc. 14 at 3). After considering the record as

4

a whole, the Court concludes that substantial evidence supports the ALJ’s decision.

5

Accordingly, the Court affirms.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

A.

Whether Substantial Evidence Supports the ALJ’s Finding that
Plaintiff’s Mental Impairments are Not Severe

Plaintiff contends the ALJ erred at step two of the sequential evaluation process by
classifying his mental impairments as not severe. (Doc. 14 at 10–11). Consequently,
Plaintiff claims the ALJ improperly omitted Plaintiff’s mental functional limitations from
the RFC. (Id. at 4–11). In support of his argument, Plaintiff argues that “[t]he opinions of
both consultative psychological examiners,” Dr. Lavit and Dr. Geary, establish that
Plaintiff has mental work-related limitations.” (Id. at 4). Plaintiff further alleges that Dr.
Lavit and Dr. Geary’s opinions are consistent with the underlying medical record,
including their own examination findings. (Id. at 6). Moreover, Plaintiff insists that “the
ALJ’s rationales for determining that [Plaintiff’s] mental impairments are non-severe and
result in no mental limitations on his ability to work are legally deficient and/or factually
inaccurate.” (Id. at 8). As a result, Plaintiff contends that the ALJ’s mental nonseverity
finding lacks the support of substantial evidence. (Id.)
At step two of the sequential evaluation, the ALJ “determines whether the
claimant has a medically severe impairment or combination of impairments.” Smolen, 80
F.3d at 1289–90. “An impairment or combination of impairments can be found nonsevere
only if the evidence establishes a slight abnormality that has no more than a minimal
effect on an individual’s ability to work.” Frias v. Colvin, No. CV-15-02185-JEM, 2015
WL 8492453, at *7 (C.D. Cal. Dec. 10, 2015) (citing Smolen, 80 F.3d at 1290).
Accordingly, “an ALJ may find that a claimant lacks a medically severe impairment or
combination of impairments only when his conclusion is ‘clearly established by medical
evidence.’” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (citation omitted).
“Thus, applying our normal standard of review to the requirements of step two, we must
- 12 -

1

determine whether the ALJ had substantial evidence to find that the medical evidence

2

clearly established that [the claimant] did not have a medically severe impairment or

3

combination of impairments.’” Id.

4

When the severity of a mental impairment is evaluated at step two, the ALJ must

5

first determine whether the claimant has a “medically determinable mental

6

impairment[].” 20 C.F.R. § 404.1520a(b)(1). Should the ALJ decide that a claimant has

7

such a medically determinable mental impairment, the ALJ “must specify the symptoms,

8

signs, and laboratory findings that substantiate the presence of the impairment[]” in her

9

written decision. 20 C.F.R. §§ 404.1520a(b)(1), (e)(4). Next, the ALJ must rate “the

10

degree of functional limitation resulting from the impairment[]” in four broad functional

11

areas: (i) activities of daily living; (ii) social functioning; (iii) concentration, persistence,

12

or pace; and (iv) episodes of decompensation. 20 C.F.R. §§ 404.1520a(b)(2), (c)(3).6 The

13

degree of functional limitation is based on the extent to which the claimant’s impairment

14

interferes with his ability “to function independently, appropriately, effectively, and on a

15

sustained basis.” 20 C.F.R. § 404.1520a(c)(2). Finally, after the degree of functional

16

limitation is rated, the ALJ determines the severity of the claimant’s mental impairment.

17

20 C.F.R. § 404.1520a(d). If the degree of limitation in the first three functional areas is

18

“none” or “mild” and “none” in the fourth area, it is generally concluded that the

19

impairment is not severe, “unless the evidence otherwise indicates that there is more than

20

a minimal limitation in [the claimant’s] ability to do basic work activities.” 20 C.F.R.

21

§ 404.1520a(d)(1).

22

Here, the ALJ comprehensively illustrated why she found Plaintiff’s mental

23

impairment to be non-severe at step two of the evaluation after careful consideration of

24

the entire record of medical evidence and the claimant’s testimony. (Tr. 17–19, 24–25).

25

First, the ALJ determined that Plaintiff had medically determinable mental impairments,

26
27
28

6

When rating the categories of daily living, social functioning, and concentration,
persistence, or pace, the ALJ is to use a five point scale of none, mild, moderate, marked,
and extreme. 20 C.F.R. § 404.1520a(c)(4). When rating episodes of decompensation, the
ALJ is to use a four-point scale of none, one or two, three, or four or more. Id.
- 13 -

1

including dysthymic disorder and history of cocaine and alcohol abuse. (Tr. 17). Rating

2

the degree of functional limitation, the ALJ found that Plaintiff’s “medically

3

determinable mental impairments cause no more than ‘mild’ limitation in any of the first

4

three functional areas and ‘no’ episodes of decompensation which have been of extended

5

duration in the fourth area.” (Tr. 19). As a result, the ALJ concluded that these mental

6

impairments, “considered singly or in combination with the claimant’s other severe and

7

nonsevere conditions, do not cause anything more than minor restriction in their ability to

8

complete work-related activities” and, therefore, are non-severe. (Id.) The ALJ’s

9

conclusion is supported by the record.

10

Plaintiff is correct that the opinions of Dr. Lavit and Dr. Geary indicate that

11

Plaintiff has some mental work-related limitations.7 However, these opinions do not, as

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

7

Dr. Lavit diagnosed Plaintiff with cocaine dependence, though in remission,
alcohol abuse, and dysthymic disorder associated with a medical condition. (Tr. 284).
Regarding Plaintiff’s understanding and memory, Dr. Lavit noted that Plaintiff’s “ability
to understand and remember . . . instructions is not impaired.” (Tr. 285). Dr. Lavit neither
had to repeat or explain questions, and Plaintiff was able to recall dates and events. (Id.)
Accordingly, because Plaintiff “evidenced a positive memory and understanding,” Dr.
Lavit found Plaintiff had “no limitations in remembering work like procedures.” (Id.) In
regard to Plaintiff’s ability to sustain concentration and persistence, Dr. Lavit indicated
that Plaintiff “remained focus through the meeting,” but noted that his ability to
concentrate for extended periods of time and maintain a normal routine without special
supervision “may be limited due to anxiety and depression.” (Id.) Dr. Lavit also
mentioned that Plaintiff’s “ability to get along with co-workers, respond appropriately to
supervision and maintain socially appropriate behavior may be impaired due to health
factors and being reactive when he is angry.” (Id.) Regarding his capacity to adapt to
change, Plaintiff may be limited “in his ability to respond appropriately to heightened
stresses/changes in the workplace[,]” but “appears to have no limitation in taking
appropriate action if he encounters a normal hazard.” (Tr. 284). While Dr. Lavit found
that Plaintiff had mental work-related limitations, he did raise “concern as to Plaintiff’s
veracity and possible exaggeration of symptoms[,]” as Plaintiff “was not consistent with
records reviewed versus his data reported” to Dr. Lavit. (Id.)
Dr. Geary, the second consultative psychologist, diagnosed Plaintiff with
dysthymic disorder of late onset, mild to moderate and untreated, a history of alcohol
abuse in partial reported remission, and polysubstance dependence in one year reported
remission. (Tr. 316). Similar to Dr. Lavit, Dr. Geary also found that Plaintiff had no
limitations in his ability to understand and remember instructions and work-like
procedures. (Tr. 318). Regarding Plaintiff’s ability to carry out instructions, maintain
concentration and sustain regular attendance, Dr. Geary noted that Plaintiff’s “pace seems
somewhat slowed but he can carry out directives.” (Tr. 318). Unlike Dr. Lavit, Dr. Geary
found that Plaintiff had no limitations in regard to social interaction. As far as his ability
to adapt to change, Dr. Geary indicated that Plaintiff “would need some time to adjust to
workplace changes but he would eventually do so.” (Tr. 319).
- 14 -

1

Plaintiff suggests, (Doc. 14 at 6), conclusively establish that Plaintiff’s mental

2

impairments are severe, nor clearly establish that there is more than a minimal limitation

3

in Plaintiff’s ability to do basic work activities. Rather, the ALJ provided clear and

4

convincing reasons, supported by the evidence, indicating the opposite. (Tr. 17–19, 24–

5

25). Accordingly, “[w]here evidence is susceptible to more than one rational

6

interpretation,” as Dr. Geary and Dr. Lavit’s reports are here, “it is the ALJ’s conclusion

7

that must be upheld.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing

8

Andrews, 50 F.3d at 1039–40.

9

The ALJ provided sound, specific reasons for finding that Plaintiff’s mental

10

impairments are non-severe. (Tr. 17–19, 24–25). The ALJ noted that Plaintiff “clearly has

11

made an effort to avoid others based on a self-described issue” and has “some cognitive

12

deficits caused by his prior drug use expanding for the previous 25 years.” (Tr. 18).

13

Nonetheless, the ALJ emphasized that Plaintiff’s “near constant unremarkable

14

presentation with both his primary care provider and cardiologists, as well as no specific

15

treatment from any mental health provider[,] and the suggestion of exaggerating hi[s]

16

symptoms by Dr. Lavit are not convincing evidence of a severe mental health condition.”

17

(Tr. 19). These specific, legitimate reasons laid out in the ALJ’s decision indicate that the

18

medical evidence clearly established that Plaintiff did not have a severe mental limitation.

19

See Frias, 2015 WL 8492453, at *7 (affirming the ALJ’s finding that claimant’s mental

20

health impairments are only mild in severity, despite claimant’s contention that the

21

moderate limitations assessed by the psychological examiner and two Agency reviewers

22

“cannot be viewed as nonsevere,” because ALJ provided “specific, legitimate reasons for

23

rejecting such limitations”). Accordingly, substantial evidence supports the ALJ’s finding

24

at step two that Plaintiff’s mental limitations are non-severe. Where the ALJ’s

25

interpretation of the record evidence is reasonable, as it is here, it should not be second

26

guessed. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).

27

Plaintiff maintains “[i]t was clear error for the ALJ to assign ‘great weight’” to the

28

opinions offered by Dr. Geary and Dr. Levit, but then omit the mental limitations they

- 15 -

1

offered from the RFC finding. (Doc. 14 at 8). Nevertheless, this argument fails, as it is

2

based on Plaintiff’s gross mischaracterization of Dr. Geary and Dr. Levit’s opinions as

3

supporting “additional functional limitations beyond those that the ALJ included in the

4

RFC.” (Doc. 17 at 6). When determining Plaintiff’s RFC, the ALJ summarized Dr. Lavit

5

and Dr. Geary’s opinions as follows:
In both assessments, [Dr. Lavit]8 and Dr. Geary opined that
the claimant satisfied the diagnostic criteria for a dysthymic
disorder, with a secondary diagnosis of polysubstance and
alcohol abuse. . . . Tellingly, the claimant reported largely the
same level of activity, but also that he was pursuing disability
due to his physical impairments, had not engaged in any
mental health treatment, and his choice to avoid others was
based on a self-imposed restriction due to alleged mood
swings. . . . Yet, despite the claimant’s allegations, based in
part on his suggested exaggeration with [Dr. Lavit], the
claimant was indicated to only be mildly impaired but
nonetheless able to understand and remember simpl[e] and
complex instructions without impairment.

6
7
8
9
10
11
12
13

(Tr. 24–25).

14

The ALJ’s inclusion of this statement summarizing Dr. Lavit and Dr. Geary’s

15

proffered mental limitations indicates that the ALJ considered “all of the [mental]

16

limitations imposed by the claimant’s [mental] impairments, even those that are not

17

severe[,]” when determining Plaintiff’s RFC. Carmickle v. Comm’r of Soc. Sec. Admin.,

18

533 F.3d 1155, 1164 (9th Cir. 2008) (citation omitted); see also Stubbs-Danielson v.

19

Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (finding that an RFC assessment “adequately

20

captures” a claimant’s limitations in concentration, persistence, and pace as long as the

21

assessment is “consistent with restrictions identified in the medical testimony”).

22

Ultimately, the ALJ’s assessment was consistent with the medical evidence and

23

testimony.

24

Moreover, even if the ALJ should have found Plaintiff’s mental impairment to be

25

severe, this error is harmless as “it is inconsequential to the ultimate nondisability

26
27
28

8

The ALJ’s RFC assessment incorrectly referred to Dr. Briggs as one of the
consultative psychologists, rather than Dr. Lavit. As the Exhibits the ALJ cites in this
section refer to Dr. Lavit’s consultative reviewing opinion—rather than that of Dr.
Briggs—the Court surmises this was a mere oversight.
- 16 -

1

determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012); see also Gray v.

2

Comm’r of Soc. Sec. Admin., 365 F. App’x 60, 61 (9th Cir. 2010) (rejecting argument that

3

the ALJ erred at step two by determining certain impairments were nonsevere, because

4

any alleged error was harmless since “the ALJ concluded that [claimant’s] other medical

5

problems were severe impairments”); Feild v. Colvin, No. CV-12-00330-TUC-BPV,

6

2013 WL 4525198, at *8 (D. Ariz. Aug. 27, 2013) (“Error in a step two determination

7

that some impairments are nonsevere is harmless when the ALJ determines that other

8

impairments are severe and proceeds through the sequential evaluation considering the

9

allegations of functional limitations imposed by non-severe impairments.”). Despite

10

finding that Plaintiff’s medically determinable mental conditions were non-severe, the

11

ALJ found that Plaintiff had severe physical impairments at step two, and continued with

12

the sequential evaluation. (Tr. 17). Then, at step five, (Tr. 26), the ALJ found that

13

Plaintiff could perform three unskilled occupations—jobs that require “little or no

14

judgment to do simple duties that can be learned on the job in a short period of time,” 20

15

C.F.R. § 404-1568(a). Plaintiff has failed to provide any evidence indicating that he is

16

incapable of utilizing “little or no judgment,” and therefore unable to perform the mental

17

demands of these unskilled occupations. On the contrary, the record evidence, including

18

Dr. Lavit and Dr. Geary’s reports, indicates Plaintiff has the capacity to do so. See

19

(Tr. 285, 318). Accordingly, substantial evidence supports the ALJ’s finding at step two

20

that Plaintiff’s mental impairments were non-severe.

21
22
23
24
25
26
27
28

B.

Whether the ALJ Properly Assessed the Credibility of Plaintiff’s
Subjective Complaints

Next, Plaintiff challenges the ALJ’s credibility finding. (Doc. 14 at 11–12). While
Plaintiff contends that the ALJ failed to adequately consider his “stellar” work record
when making credibility findings, (Doc. 14 at 11–12), his argument has no merit.
Nowhere in the ALJ’s decision does she mention that she explicitly did not consider
Plaintiff’s work record when making her credibility findings. (Tr. 14–27). In fact, the
ALJ specifically states that she considered the “entire record,” which would include any
evidence of Plaintiff’s “stellar” work record, in making her determination. (Tr. 20).
- 17 -

1

Furthermore, there is no requirement that the ALJ automatically enhance Plaintiff’s

2

credibility or credit all of his subjective complaints merely because he maintained work

3

in the past; the Court has found no case law requiring an ALJ to do so, nor did Plaintiff

4

provide any to this end.

5

“In reaching a credibility determination, an ALJ may weigh inconsistencies

6

between the claimant’s testimony and his or her conduct, daily activities, and work

7

record, among other factors.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226

8

(9th Cir. 2009). “To determine whether a claimant’s testimony regarding subjective pain

9

or symptoms is credible, an ALJ must engage in a two-step analysis.” Lingenfelter v.

10

Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007). First, as a threshold matter, “the ALJ

11

must determine whether the claimant has presented objective medical evidence of an

12

underlying impairment ‘which could reasonably be expected to produce the pain or other

13

symptoms alleged.’” Id. at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir.

14

1991)); see also Smolen, 80 F.3d at 1282 (“By requiring that the medical impairment

15

‘could reasonably be expected to produce’ pain or another symptom, the . . . test requires

16

only that the causal relationship be a reasonable inference, not a medically proven

17

phenomenon.”). Second, if the claimant meets the first test, and there is no evidence of

18

malingering, “the ALJ can reject the claimant's testimony about the severity of her

19

symptoms only by offering specific, clear and convincing reasons for doing so.” Smolen,

20

80 F.3d at 1281; see also Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006)

21

(“[U]nless an ALJ makes a finding of malingering based on affirmative evidence thereof,

22

he or she may only find an applicant not credible by making specific findings as to

23

credibility and stating clear and convincing reasons for each.”). “General findings are

24

insufficient; rather, the ALJ must identify what testimony is not credible and what

25

evidence undermines the claimant’s complaints.” Lester v. Chater, 81 F.3d 821, 834 (9th

26

Cir. 1995).

27

When weighing a claimant’s credibility, “the ALJ may consider ‘ordinary

28

techniques of credibility evaluation[.]’” Turner v. Comm’r of Soc. Sec., 613 F.3d 1217,

- 18 -

1

1224 n.3 (quoting Smolen, 80 F.3d at 1284). For example, the ALJ may consider

2

inconsistencies in either the claimant’s testimony or between the testimony and the

3

claimant’s conduct, id.; “‘unexplained or inadequately explained failure to seek treatment

4

or to follow a prescribed course of treatment,’” Tommasetti v. Astrue, 533 F.3d 1035,

5

1039 (9th Cir. 2008) (quoting Smolen, 80 F.3d at 1284); and “whether the claimant

6

engages in daily activities inconsistent with the alleged symptoms,” Lingenfelter, 504

7

F.3d at 1040.
1.

8
9

In her explanation for why she found Plaintiff’s mental impairments non-severe at

10
11
12
13
14

step two, the ALJ first noted that Plaintiff “has never engaged in any regular outpatient
mental health treatment, or required any in-patient psychiatric care.” (Tr. 18). Rather, the
ALJ pointed out that Plaintiff’s presentation to his physicians has largely been
unremarkable:
[I]n treatment with his cardiologists, the claimant has
maintained a ‘normal affect’ through January of 2013 . . . ,
and with his primary care provider, the claimant has always
been noted as demonstrating good judgment and insight,
[and] normal mood and affect, . . . with his recent and remote
memory normal and intact. . . . In fact, the claimant was never
diagnosed with a depressive or anxiety disorder until his
primary care provider noted that he presented with disability
paperwork[.] . . .Yet, even there, the claimant maintained his
unremarkable presentation, . . . and in the next three
appointments with [his primary care provider], these mental
diagnoses were not provided.

15
16
17
18
19
20
21

Plaintiff’s Limited Treatment History and Near Constant
Unremarkable Presentation

(Id.)

22

Plaintiff, however, challenges the ALJ’s finding on this point. Plaintiff states he

23

“specifically informed Dr. Lavit that he was unable to seek treatment for his symptoms

24

due to his ‘limited insurance.’” (Doc. 14 at 9). Quoting Gamble v. Chater, Plaintiff

25

contends that “[d]isability benefits may not be denied because of the claimant’s failure to

26

obtain treatment he cannot obtain for lack of funds.” 68 F.3d 319, 321 (9th Cir. 1995).

27

“The fact that Plaintiff has had limited mental health treatment is not a sufficient

28

sole reason to find that [his] mental impairments are not severe at Step Two.” Cook v.

- 19 -

1

Colvin, No. CV-15-08158-PCT-ESW, 2016 WL 3961710, at *5 (D. Ariz. July 22, 2016);

2

see also Balladarez v. Colvin, No. CV-13-9490-MAN, 2014 WL 7185342, at *6 (C.D.

3

Cal. Dec. 16, 2014) (“[T]he methods by which plaintiff treated, or failed to treat, his

4

alleged mental impairments are not relevant to a determination of whether plaintiff has a

5

‘medically determinable’ mental impairment.”). Nevertheless, the ALJ did not make its

6

finding that Plaintiff’s mental impairments were not severe solely based on Plaintiff’s

7

limited mental health treatment for those conditions, nor did the ALJ expressly place any

8

weight on this factor in discounting Plaintiff’s credibility.

9

Furthermore, while Plaintiff alleges that he did not seek medical care for his

10

mental impairments due to his “limited insurance,” (Tr. 281), Plaintiff received other

11

medical care from his cardiologists and from his primary care physician on many

12

occasions from his alleged disability date onward, (Tr. 18–25); Plaintiff even had an

13

elective surgery to repair a torn rotator cuff on his left shoulder, (Tr. 243). Accordingly,

14

the Court holds that this was a specific, sound reason supporting the ALJ’s finding that

15

Plaintiff’s mental impairments are non-severe, as Plaintiff clearly had the means, and the

16

insurance, to pay for mental health treatment. See Flaten, 44 F.3d at 1464 (upholding an

17

adverse credibility determination for failure to seek treatment despite claimant’s alleged

18

inability to pay because claimant received other medical care during the time she

19

professed she was unable to afford treatment); see also Fair v. Bowen, 885 F.2d 597, 603

20

(9th Cir. 1989) (finding it appropriate to consider “an unexplained, or inadequately

21

explained, failure to seek treatment” when engaging in credibility determinations). The

22

Court therefore rejects Plaintiff’s claim that the ALJ erred in relying on Plaintiff’s failure

23

to seek treatment for his mental impairments.

24
25
26
27
28

2.

Plaintiff’s Report During the Consultative Examinations
Regarding His Inability to Work

According to the ALJ, Plaintiff’s lack of severe mental impairment is also
supported by the fact that Plaintiff admitted he did not experience mental health issues
that prevented him from working. (Tr. 18). Specifically, Plaintiff’s report to Dr. Lavit
during the consultative psychological examination indicated that “he cannot work in his
- 20 -

1

profession (construction) because of the physical work.” (Tr. 279) (emphasis added).

2

Although Plaintiff clearly indicated that he can no longer work in construction due

3

to its physical requirements, Plaintiff contends that he also cited a mental condition

4

barring his ability to work in his report to Dr. Lavit. (Doc. 14 at 9). In this report, Plaintiff

5

states that he cannot work “due to having heart problems, feeling dizzy, chest pain[,] . . .

6

heart arrhythmia[,]” and because “[h]e feels he is going to die.” (Tr. 279). According to

7

Plaintiff, his statement to Dr. Lavit about his “fears of dying clearly suggest[s] underlying

8

anxiety[,]” a nonphysical condition which precludes him from working. (Doc. 14 at 9).

9

However, the Court agrees with Defendant that “Plaintiff plainly linked his alleged fear

10

to his physical condition, instead of a mental impairment.” (Doc. 17 at 5). It is obvious

11

from Dr. Lavit’s written report that Plaintiff was describing the physical conditions he

12

feels when he exerts himself, rather than his mental health. (Tr. 279). Plaintiff’s statement

13

clearly undermines his contention that his mental impairments are severe, as these

14

impairments, by his own admission by omission to Dr. Lavit, did not previously interfere

15

with his ability to do basic work activities, while his physical afflictions had.

16

Consequently, the Court holds that this was a specific, sound reason to support the ALJ’s

17

finding that Plaintiff’s mental impairments are non-severe. Gallant, 753 F.2d at 1453

18

(“Where evidence is susceptible of more than one rational interpretation, it is the ALJ’s

19

conclusion which must be upheld[.]” (citations omitted)).
3.

20
21
22
23
24
25
26
27
28

Plaintiff’s Daily Activities and Possible Exaggeration of
Symptoms

Finally, the ALJ noted that Dr. Lavit’s suggestion that Plaintiff was possibly
exaggerating his symptoms supported her finding that Plaintiff lacks a severe mental
impairment. (Tr. 18). Specifically, Dr. Lavit observed in his psychological report that
Plaintiff’s statements, including his daily activities, were inconsistent with his treatment
records, “raising concern as to his veracity and possible exaggeration of symptoms.”
(Tr. 284).
Although Plaintiff asserts that Dr. Lavit’s conclusion was unfounded because he
“only reviewed cardiology records, and was not provided with a copy of Plaintiff’s
- 21 -

1

primary care physicians records[,]” (Doc. 14 at 9), Plaintiff’s argument fails. Had Dr.

2

Lavit reviewed the rest of the medical records—including those from Plaintiff’s primary

3

care physician—he would have noted only meager evidence of mental health symptoms.

4

In fact, throughout the record, Plaintiff’s doctors consistently observed that Plaintiff

5

lacked mental health issues, see, e.g., (Tr. 237–39, 287, 290–92, 325, 328–30, 351, 357,

6

364, 368, 371, 374, 378, 382, 385, 389, 392, 395, 400, 404, 408, 413, 415, 417–418), and

7

Plaintiff obtained a near perfect score on his mini-mental status exam, (Tr. 280, 314).

8

Moreover, as the ALJ explained, Plaintiff “was never diagnosed with a depressive or

9

anxiety disorder until his primary care provider noted that he presented with disability

10

paperwork[.]” (Tr. 18). Even then, his primary care provider indicated that Plaintiff

11

exhibited “normal mood and affect.” (Tr. 371). Overall, Plaintiff’s medical records would

12

have only “confirmed Dr. Lavit’s skepticism about Plaintiff’s allegations regarding his

13

mental health symptoms.” (Doc. 17 at 4). Moreover, as “[c]ontradiction with the medical

14

record is a sufficient basis for rejecting [a] claimant’s subjective testimony,” the ALJ did

15

not err in noting Plaintiff’s inconsistent testimony here. Carmickle, 533 F.3d at 1161 see

16

also Bickell v. Astrue, 343 F. App’x 275, 277 (9th Cir. 2009) (“Inconsistencies and a

17

tendency to exaggerate provide a valid basis for discrediting the testimony of a claimant.”

18

(citing Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001))).

19

4.

Conclusion

20

Based on the foregoing, the ALJ’s negative credibility finding was a reasonable

21

interpretation of the evidence. The ALJ made specific findings supported by the record

22

that provided clear and convincing reasons to explain her credibility evaluation.9

23

Consequently, “it is not [the Court’s] role to second-guess it.” Rollins, 261 F.3d at 857

24
9

25
26
27
28

The ALJ cited additional reasons for finding Plaintiff’s subjective complaints not
entirely credible. First, the ALJ noted that Plaintiff stopped working not because of his
impairments, but because he had been laid off. (Tr. 21). As, “the physical or mental
impairment(s) must be the primary reason for the individual’s inability to engage in
substantial gainful activity,” the ALJ found this fact significant in the determination,
especially “[w]hen taken in consideration with the claimant’s activity of applying for jobs
while receiving unemployment benefit[s].” (Tr. 20–21). Second, the ALJ indicated that
Plaintiff’s “statements concerning the intensity, persistence and limiting effects of [his]
symptoms are not entirely consistent.” (Tr. 20).
- 22 -

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

(citing Fair, 885 F.2d at 604).
C.

Whether the ALJ Properly Relied on the Vocational Expert’s
Testimony Regarding the DOT

The Court next turns to Plaintiff’s argument that the ALJ erred at step five of the
sequential evaluation by failing to resolve an alleged conflict between the VE’s testimony
and the DOT. (Doc. 14 at 13–15). Specifically, Plaintiff claims that, according to the
descriptions in the DOT, the jobs identified by the VE are incompatible with Plaintiff’s
RFC, which limits him to occasional overhead reaching with his left arm. (Id. at 14–15).
Plaintiff bases this contention on his review of the DOT supplement, the Selected
Characteristics of Occupations Defined in the Dictionary of Occupational Titles
(“SCO”). (Id. at 13–15). According to Plaintiff, the SCO indicates that “the job of fast
food worker requires constant reaching while the remaining jobs [identified by the VE,
cashier and car wash attendant,] require frequent reaching.” (Id. at 14–15) (citations
omitted). Accordingly, because “the jobs offered by the vocational expert ostensibly
require frequent (or even constant) overhead reaching,” (id. at 15), while “[t]he ALJ’s
RFC and hypothetical question to the vocational expert limited [him] to . . . only
occasional overhead reaching” with his left arm, (id. at 14), Plaintiff alleges that the VE’s
testimony conflicts with the DOT, (id. at 15). As a result, Plaintiff contends that the ALJ
erred by relying on the VE’s testimony without resolving this purported inconsistency,
and, consequently, did not meet its “burden of proof . . . at step 5 to establish that there is
other work . . . [Plaintiff] can perform[.]” (Id. at 13).
Defendant, on the other hand, argues that “substantial evidence supports the ALJ’s
finding that the vocational expert’s . . . testimony was consistent with the Dictionary of
Occupational Titles (DOT).” (Doc. 17 at 2). First, Defendant contends that “Plaintiff did
not raise this issue during the administrative hearing and, as a result, has not preserved it
on appeal.” (Id. at 10). Defendant reports that even though “the VE informed the ALJ that
her testimony—in which she confirmed that a person with Plaintiff’s left upper extremity
limitation could perform the jobs she identified—did not conflict with the DOT” at the
administrative hearing, Plaintiff’s counsel declined the “opportunity to question the VE
- 23 -

1

. . . on this point[.]” Id. (citing Tr. 54–55).

2

Defendant also contends, “even if Plaintiff had preserved this point, his argument

3

fails on the merits because there is no apparent conflict between the VE’s testimony and

4

the DOT.” (Id.) Defendant argues that an ALJ is only required to “obtain ‘a reasonable

5

explanation [from the VE] for the apparent conflict’ between the VE’s testimony and the

6

DOT” if the “VE’s testimony ‘appears to conflict with the DOT.’” (Id.) (quoting SSR 00-

7

4p, 2000 WL 1898704 (Dec. 4, 2000)). In support of its position that “[n]o such conflict

8

existed here[,]” (id. at 11), Defendant cites Matthewson v. Colvin, No. CV-14-08204-

9

PCT-GMS, 2015 WL 9297648, at *3–6 (D. Ariz. Dec. 22, 2015), which, according to

10

Defendant, holds that “a limitation to occasional overhead reaching with one upper

11

extremity does not conflict with DOT occupations requiring frequent reaching,” (Doc. 17

12

at 11). “Thus, given the lack of conflict,” Defendant argues “the ALJ was not required to

13

obtain any further explanation from the VE about the occupations she identified.” (Id.)

14

“At step five of the sequential evaluation for disability, the Commissioner bears

15

the burden of proving that the SSI claimant can perform other work in the national

16

economy, given the claimant’s RFC, age, education, and work experience.” Gonzales v.

17

Colvin, No. 12-CV-01068-AA, 2013 WL 3199656, at *3 (D. Or. June 19, 2013) (citations

18

omitted). When determining whether a claimant can perform other work, “the best source

19

for how a job is generally performed” in the national economy is usually the DOT. Pinto

20

v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001) (citations omitted). However, “[t]he

21

DOT is not the sole source of admissible information concerning jobs.” Johnson v.

22

Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995) (quotation omitted). Rather, the ALJ may

23

also rely on testimony from a VE, even if the VE’s testimony on job traits varies from the

24

DOT classification. Id. However, before relying on VE testimony about the requirements

25

of a particular occupation, “the ALJ must [first] ask the VE if his or her testimony is

26

consistent with the DOT.” Wentz v. Comm’r of Soc. Sec. Admin., 401 F. App’x 189, 191

27

(9th Cir. 2010) (citing Massachi v. Astrue, 486 F.3d 1149, 1152–53 (9th Cir. 2007)).

28

If “there is an apparent unresolved conflict between VE . . . evidence and the

- 24 -

1

DOT, the [ALJ] must elicit a reasonable explanation for the conflict before relying on the

2

VE . . . evidence to support a determination or decision about whether the claimant is

3

disabled.” SSR 00-4p.10 Accordingly, an “ALJ may rely on expert testimony which

4

contradicts the DOT, but only insofar as the record contains persuasive evidence to

5

support the deviation.” Johnson, 60 F.3d at 1435. For example, a reasonable explanation

6

for such conflict might include “[i]nformation about a particular job’s requirements or

7

about occupations not listed in the DOT . . . from a VE’s . . . experience in job placement

8

or career counseling.” SSR 00-4p.

9

Here, the Court does not find a conflict between the VE’s testimony and the DOT

10

descriptions for the occupations identified by the VE. First, the ALJ specifically asked

11

the VE what jobs a person could perform with Plaintiff’s characteristics and limitations,

12

including a limitation to occasional overhead reaching with the left arm. (Tr. 52). In

13

response, the VE testified that such an individual could work as a cashier, car wash

14

attendant, or fast food worker. (Tr. 52–53). After the ALJ asked the VE whether her

15

testimony was consistent with the DOT, the VE confirmed that it was, with one

16

exception. (Tr. 55).11 Based on this testimony by the VE, the ALJ found at step five of

17

the evaluation that the VE’s testimony was consistent with the information contained in

18

the DOT. (Tr. 26). As a result, the ALJ determined that Plaintiff was not disabled,

19
10

20
21
22
23

“An ALJ’s failure to inquire into a conflict between the VE’s opinion and the
DOT job description, and a failure to address and explain such a conflict in the decision,
constitutes procedural error.” Hernandez v. Colvin, No. SACV 15-1431-KS, 2016 WL
1071565, at *4 (C.D. Cal. Mar. 14, 2016). Failure to do so, however, is harmless error
where “no conflict existed or if the VE ‘provided sufficient support for [his] conclusion
so as to justify any potential conflicts’” or deviation from the DOT. Coleman v. Astrue,
423 F. App’x 754, 756 (9th Cir. 2011) (quoting Massachi, 486 F.3d at 1152–53).
11

24
25
26
27
28

The ALJ added an additional work limitation—a sit/stand, at-will option—to the
hypothetical posed to the VE. (Tr. 53). Even with this limitation, the VE testified that a
person with Plaintiff’s limitations and characteristics could still find work as a parking lot
attendant or cashier. (Tr. 53). When the ALJ pointed out that “sit/stand at will is not a
factor that’s listed in the DOT description of jobs[,]” the VE explained the inconsistency
between the DOT and her testimony by stating that she based her opinion on her “30
years of placing people in jobs in the State of Arizona[.]” (Tr. 55). The ALJ then asked
the VE whether the remainder of her testimony was consistent with the DOT, and the VE
confirmed that it was. (Tr. 55). Notwithstanding, the ALJ ultimately did not incorporate a
sit/stand, at-will option into the RFC finding, see (Tr. 20), and Plaintiff does not contest
the ALJ’s finding on this point, see generally (Doc. 14).
- 25 -

1

(Tr. 26), because “there are jobs that exist in significant numbers in the national economy

2

that . . . [Plaintiff] can perform[,]” (Tr. 25).

3

Next, while Plaintiff argues that “it is at best unclear if any of [the jobs identified

4

by the VE requiring frequent (or even constant) overhead reaching] can be performed

5

using only one arm[,]” (Doc. 14 at 15), the ALJ did not limit Plaintiff to only using one

6

arm for overhead reaching, (Tr. 20). Rather, not only can Plaintiff reach in an unlimited

7

manner in any direction with his right arm, but the ALJ’s limitation stated that Plaintiff

8

could “occasionally reach overhead with the nondominant left upper extremity.” (Tr. 20).

9

Identical to the limitation of the claimant in Matthewson, Plaintiff’s ALJ “limitation

10

allows for unlimited reaching with the left arm in any direction except up above shoulder

11

level[,] . . . [a]nd even the limited activity—reaching overhead with the left arm—can be

12

performed occasionally.” Matthewson, 2015 WL 9297648, at *3.

13

Although Plaintiff argues that “the jobs offered by the vocational expert ostensibly

14

require frequent (or even constant) overhead reaching,” (Doc. 14 at 15) (emphasis

15

added), there is nothing in the DOT descriptions indicating that these jobs specifically

16

require overhead reaching at all. See Fast Foods Worker, DOT 311.472-010, available at

17

1991 WL 672682; Cashier, DOT 211.462-010, available at 1991 WL 671840; Car Wash

18

Attendant, DOT 915.667-010, available at 1991 WL 687869. Rather, “the DOT

19

descriptions of the various positions only indicate that the jobs require unspecified

20

reaching[.]” Dickmeier v. Comm’r of Soc. Sec. Admin., No. 2:14-CV-00967-HZ, 2015

21

WL 8514188, at *5 (D. Or. Dec. 11, 2015). In contrast, “when an occupation requires

22

overhead work, the DOT narrative description will explicitly mention that requirement.”

23

Gonzales, 2013 WL 3199656, at *3–4; see also Dickmeier, 2015 WL 8514188, at *5

24

(citing examples of DOT job descriptions “expressly indicat[ing] when overhead work is

25

involved”). Here, however, the DOT job descriptions for each of the three occupations

26

cited by the VE do not specifically mention overhead work.

27

Moreover, the DOT descriptions of the jobs identified by the VE do not indicate

28

that they require the use of both arms to frequently reach overhead. See, e.g., Carey v.

- 26 -

1

Apfel, 230 F.3d 131, 146 (5th Cir. 2000) (holding that job requirements in the DOT are

2

not “bilateral” and, therefore, do not conflict with VE testimony that an individual with

3

one arm could perform jobs requiring fingering and handling); Palomares v. Astrue, 887

4

F. Supp. 2d 906, 920 (N.D. Cal. 2012) (concluding that occasional overhead reaching

5

limitation for left arm is consistent with the DOT description requiring constant reaching

6

[b]ecause the DOT does not explicitly require constant reaching with both arms”);

7

McConnell v. Astrue, No. EDCV-08-667-JC, 2010 WL 1946728, at *6–7 (C.D. Cal. May

8

10, 2010) (holding that the plaintiff’s limitation to work only with one hand did not

9

conflict with jobs requiring reaching and handling because plaintiff was capable of

10

performing these requirements with his other hand and there was no express bilateral

11

requirement in the DOT for those occupations); Feibusch v. Astrue, No. CIV-07-00244-

12

BMK, 2008 WL 583554, at *5 (D. Haw. Mar. 4, 2008) (citations omitted) (“[T]he use of

13

two arms is not necessarily required for jobs that require reaching and handling.”).

14

Furthermore, there is no direct conflict between the DOT and the VE’s testimony.

15

To find a conflict between the VE’s testimony and the DOT here, the Court “would have

16

to read a requirement into the DOT that is not there.” Frias, 2015 WL 8492453, at *7

17

(citing Gonzales, 2013 WL 3199656, at *4). Specifically, “[f]or the Court to find a

18

conflict on these facts, it would have to read into the DOT’s description [of the fast food

19

worker, cashier, and car wash attendant] a requirement of overhead reaching with both

20

arms[, or with the left arm specifically,] on a more than-occasional basis[.]” Lee v.

21

Astrue, No. 6:12-CV-00084-SI, 2013 WL 1296071, at *11 (D. Or. Mar. 28, 2013).

22

However, “[a]s the DOT [descriptions of the jobs identified by the VE] do[] not discuss

23

overhead reaching, there is no conflict between the DOT and the ALJ’s RFC limitation.”

24

Frias, 2015 WL 8492453, at *7 (citing Strain v. Colvin, No. CV-13-01973-SH, 2014 WL

25

2472312, at *2 (C.D. Cal. June 2, 2014)). As a result, the ALJ here correctly relied on the

26

testimony of the VE, who had personally experienced over “30 years of placing people in

27

jobs in the State of Arizona,” (Tr. 55), and who testified that she relied on the DOT,

28

(Tr. 55). Accordingly, “[t]he VE’s testimony is substantial evidence.” Frias, 2015 WL

- 27 -

1

8492453, at *7; see also Bayliss v. Barnhart, 427 F.3d 1211, 1218 (“A VE’s recognized

2

expertise provides the necessary foundation for his or her testimony.”). Thus, because

3

substantial evidence supports the ALJ’s decision below, which is free from legal error,

4

the Court here affirms. See Hammock, 879 F.2d at 501.

5

Social Security Ruling 85-15 defines “reaching” as “extending the hands and arms

6

in any direction.” SSR 85-15, 1985 WL 56857 (Feb. 26, 1979). However, “courts are

7

divided on the question of whether ‘reaching’ in the DOT requires the ability to reach in

8

all directions,” including overhead, “or whether ‘reaching’ . . . in the DOT requires the

9

ability to use both arms or hands[.]” Lee, 2013 WL 1296071, at *11. Further, “there is no

10

controlling precedent.” Id. In fact, two cases from within this District, Matthewson, 2015

11

WL 9297648, at *2–6, and Marquez v. Astrue, No. CV-11-339-TUC-JGZ-DT, 2012 WL

12

3011778, at *2–4 (D. Ariz. May 2, 2012), illustrate this dilemma in regard to whether a

13

limitation on overhead reaching with one arm conflicts with a DOT description requiring

14

reaching. Though within the same District, the courts came to markedly different

15

conclusions in these two cases.

16

In Marquez, the claimant argued that according to the descriptions in the DOT, the

17

jobs identified by the VE requiring frequent reaching were incompatible with the

18

claimant’s RFC, which limited the claimant from any overhead reaching with his left

19

arm. Marquez, 2012 WL 3011778, at *1–2. Accordingly, the claimant alleged that “the

20

VE’s testimony was in conflict with the DOT and the ALJ failed to provide sufficient

21

justification for relying on the VE’s conflicting testimony.” Id. at *2. Remanding for

22

further development by the ALJ, the court held that there is an inherent conflict when a

23

VE testifies that a claimant with limited or no use of one arm can perform a job that

24

requires a significant amount of reaching. Id. at *3–4. In arriving at this conclusion, the

25

court determined that “frequent reaching includes reaching overhead with both arms” and

26

stated that “[t]he DOT does not distinguish between types of reaching or reaching with

27

the left or right hand.” Id. at *3. The court also noted that “neither the VE nor the ALJ

28

clarified the potential conflict between Marquez’s reaching limitation and the job

- 28 -

1

requirements.” Id. As a result, the court concluded that “the VE’s testimony regarding

2

Marquez’s ability to perform the three identified jobs is not consistent with the DOT’s

3

description of these jobs as requiring frequent reaching.” Id.

4

Similarly, other courts outside of the District of Arizona have found apparent

5

conflict between restrictions on overhead reaching and DOT descriptions requiring

6

reaching generally in similar circumstances. See, e.g., Meyer v. Astrue, No. 1:09-CV-

7

01448-JLT, 2010 WL 3943519, *9 (E.D. Cal. Oct. 1, 2010); Marshall v. Astrue, No. 08-

8

CV-1735-L(WMC), 2010 WL 841252, at *6 (S.D. Cal. Mar. 10, 2010). Nonetheless,

9

“Marquez is in the minority. Other district courts . . . have generally found that a claimant

10

with limited use of one arm is not precluded from performing a job with frequent

11

reaching, unless the DOT job description explicitly requires bilateral reaching.” Lessley v.

12

Colvin, No. 15-CV-00096-HDM-VPC, 2015 WL 10710837, at *5 (D. Nev. Nov. 13,

13

2015) (citations omitted).

14

Although persuasive, Marquez is not binding on the Court. Further, the Court

15

finds that the present case is factually distinguishable from Marquez. First, while both the

16

claimant in Marquez and Plaintiff here have overhead reaching limitations with their left

17

arms, the extent of these limitations are significantly different. Pointedly, the claimant in

18

Marquez was limited from “any overhead work with his left upper extremity,” Marquez,

19

2012 WL 3011778, at *1 (emphasis added), whereas, here, Plaintiff’s RFC states that he

20

can “occasionally reach overhead with” his left arm, (Tr. 20) (emphasis added). Further,

21

the court in Marquez noted that “neither the VE nor the ALJ clarified the potential

22

conflict between Marquez’s reaching limitation and the job requirements.” Marquez,

23

2012 WL 3011778, at *3. This is not the case at present, however. Here, the ALJ

24

provided Plaintiff’s limitations in a hypothetical to the VE, and explicitly asked the VE if

25

a person with Plaintiff’s limitations could perform the identified jobs. (Tr. 51–52).

26

Rather, the Court finds that the present case is analogous to Matthewson. In

27

Matthewson, the claimant contended that the jobs identified by the VE requiring frequent

28

overhead reaching were incompatible with the claimant’s RFC, which limited him to

- 29 -

1

occasional overhead reaching with the left arm. 2015 WL 9297648, at *2–3. Accordingly,

2

the claimant argued that “the ALJ erred by relying on the testimony of the vocational

3

expert without resolving [this] purported inconsistency” between the VE’s testimony and

4

the DOT. Id. at *2. Affirming the ALJ’s decision, the court held that a limitation to

5

occasional overhead reaching with the nondominant left arm did not conflict with DOT

6

occupations requiring frequent reaching. Id. at *2–6. In coming to this conclusion, the

7

court noted that there was nothing in the DOT job descriptions indicating that the jobs

8

require overhead reaching, nor was there anything in the DOT suggesting that the

9

claimant “must frequently do overhead reaching and must use both arms to do it.” Id. at

10

*3. As a result, the court “determined that the facts of this case do not present an actual

11

conflict between the vocational expert’s testimony and the DOT,” and, therefore, upheld

12

the ALJ’s determination that “there are jobs that exist in significant numbers in the

13

national economy that the claimant can perform[.]” Id. at *6. Likewise, here, the ALJ’s

14

left-arm restriction is not inconsistent with the frequent (or constant) reaching demands of

15

the occupations identified by the VE, as each occupation’s DOT description does not

16

specifically require reaching with both arms or overhead reaching.

17

Further, other courts have held that a limitation on reaching with one arm does not

18

conflict with a DOT description requiring reaching generally. See, e.g., Carey, 230 F.3d

19

at 145–46; Brown v. Colvin, No. CV-14-4420-JPR, 2015 WL 3823938, at *7–8 (C.D.

20

Cal. June 19, 2015) (finding that “the ALJ’s left-arm restriction was not necessarily

21

inconsistent with the frequent—or constant[—]reaching demands of the jobs identified in

22

[claimant’s] step-five finding” where “the tasks listed in each position’s DOT description

23

don’t necessarily require above-shoulder reaching or reaching with both arms”);

24

Gonzales, 2013 WL 3199656, at *4 (finding no apparent conflict between the VE’s

25

testimony and the DOT narrative requiring reaching where the plaintiff was limited to

26

only occasional overhead reaching with the right arm); Palomares, 887 F. Supp. 2d at

27

920 (concluding that occasional overhead reaching limitation for one arm was consistent

28

with DOT requirement for constant reaching).

- 30 -

1

Similarly, other courts have also held that a bilateral restriction on overhead

2

reaching does not conflict with a DOT job description requiring reaching generally. See,

3

e.g., Dickmeier, 2015 WL 8514188, at *5 (finding that the DOT descriptions of the jobs

4

identified by the VE requiring frequent reaching are compatible with the plaintiff’s

5

occasional bilateral overhead reaching limitation); Frias, 2015 WL 8492453, at *7

6

(“There is no conflict between the ALJ’s RFC limitation of ‘occasional overhead

7

reaching bilaterally’ and the DOT requirement of ‘frequent reaching.’”); Lee, 2013 WL

8

1296071, at *10–11; Hernandez v. Astrue, No. CV-12–01009-RZ, 2012 WL 4840692, at

9

* 1 (C.D. Cal. Sept. 4, 2012). But see, e.g., Prochaska v. Barnhart, 454 F.3d 731, 736

10

(7th Cir. 2006) (concluding that a bilateral restriction on overhead reaching conflicts with

11

a DOT description requiring reaching generally where claimant could not reach above the

12

shoulder level more than occasionally with either arm)12; Padilla v. Astrue, No. CV-12–

13

1197-JC, 2012 WL 4356150, at *4–5 (C.D. Cal. Sept. 21, 2012) (concluding that

14

claimant, “an individual who is only limited to occasional ‘overhead’ reaching”, is

15

precluded from jobs requiring “frequent” reaching).

16

Finally, Defendant correctly notes that, as a result of the failure of Plaintiff’s

17

counsel to pursue this issue with the VE at the administrative hearing, Plaintiff has not

18

preserved this issue for appeal. Plaintiff’s counsel missed its opportunity to ask the VE

19

about any potential conflict between the RFC limitation to only occasional overhead

20

reaching with the left arm and the DOT requirements of frequent or constant reaching.

21

“[W]hen claimants are represented by counsel, they must raise all issues and evidence at

22

their administrative hearings in order to preserve them on appeal.” Meanel v. Apfel, 172

23

F.3d 1111, 1115 (9th Cir. 1999). The ALJ, rather than the Court, was in the optimal

24

position to resolve any conflict between the testimony provided by the VE about the jobs

25
12

26
27
28

Although the Ninth Circuit cited Prochaska in a footnote in its holding in
Massachi, 486 F.3d at 1154, this Tenth Circuit case is not binding on this Court on the
issue of whether or not a designation in the DOT that an occupation involves frequent
‘reaching’ is consistent with a claimant’s RFC limitation on overhead reaching. See
Matthewson, 2015 WL 9297648, at *5. Rather, the Ninth Circuit cited Prochaska for its
holding “that an ALJ’s failure to make the relevant inquiries under SSR-004p leaves
‘unresolved potential inconsistencies in the evidence.’” Massachi, 486 F.3d at 1154.
- 31 -

1

a person with Plaintiff’s limitations could perform and the descriptions of those jobs in

2

the DOT. See id. Furthermore, the Court does not find that manifest injustice would occur

3

in deeming the argument waived. Id. (noting that a failure to comply with waiver rule is

4

only excused “when necessary to avoid a manifest injustice”).

5

As the VE’s testimony was consistent with the DOT, the ALJ did not err in relying

6

on the VE’s testimony or by not obtaining an explanation for the alleged inconsistency.

7

Accordingly, the Court holds that the ALJ’s determination that Plaintiff is not disabled

8

because “there are jobs that exist in significant numbers in the national economy that the

9

claimant can perform” is supported by substantial evidence. (Tr. 25–26).

10

IV.

Conclusion

11

For the reasons stated above,

12

IT IS ORDERED that the final decision of the Commissioner of Social Security

13
14
15
16

is AFFIRMED.
IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment
accordingly and terminate this case.
Dated this 9th day of August, 2016.

17
18
19
20
21
22
23
24
25
26
27
28

- 32 -