Michael Kitayama v. Michael J Astrue

Filing 18

MEMORANDUM OPINION AND ORDER by Magistrate Judge Ralph Zarefsky. (ib)

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O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MICHAEL KITAYAMA, 12 13 14 15 16 Plaintiff, vs. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) CASE NO. CV 11-05713 RZ MEMORANDUM OPINION AND ORDER 17 In May 2007, an administrative law judge determined that Plaintiff Michael 18 Kitayama could perform his past relevant work as a printer, and accordingly denied his 19 application for Social Security disability benefits. This Court upheld that determination. 20 Plaintiff now returns to court, this time after the Commissioner determined that his status 21 had changed, so that he no longer could work as a printer, but that he still could perform 22 work that exists in significant numbers in the economy. Plaintiff asserts two challenges to 23 the Commissioner’s determination. 24 First, Plaintiff argues that the Administrative Law Judge failed to determine 25 properly Plaintiff’s residual functional capacity. Plaintiff cites various reports from the 26 record, none of which supports the argument that the Administrative Law Judge erred in 27 his assessment of Plaintiff’s remaining capacity. It must be remembered that the question 28 is not whether Plaintiff can locate in the record references to support his view of his 1 capacity; the legal question is whether the capacity determined by the Administrative Law 2 Judge is backed by substantial evidence. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 3 1992); see also Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001) (when the evidence 4 can rationally be interpreted in more than one way, the court must uphold the 5 Commissioner's decision). 6 Administrative Law Judge relied on the testimony of the medical expert, who took a more 7 conservative approach than the consultants, who had thought that Plaintiff had no mental 8 limitations whatsoever. As the Administrative Law Judge stated, this conclusion was 9 consistent with the assessments of the treating physicians. [AR 19-20] Here, substantial evidence backed the decision. The 10 Plaintiff asserts that a limitation to simple and repetitive tasks does not take 11 into account his deficiencies in concentration, persistence and pace. Plaintiff has, however, 12 overstated the evidence. The cases he cites were cases in which the evidence rather 13 conclusively demonstrated that the claimant often had difficulties concentrating and 14 working at a pace necessary to keep up; they do not ineluctably stand for the proposition 15 that whenever a person has any deficits in those areas, that the residual functional capacity 16 limiting him to simple and repetitive tasks is itself inadequate. See Newton v. Chater, 92 17 F.3d 688 (8th Cir. 1996); Dade v. Commissioner, 1999 WL 1192727 (D. Or. 1999); 18 Rosario v. Shalala, 836 F. Supp. 257 (E.D. Pa. 1993); compare Stubbs-Danielson v. Astrue, 19 539 F.3d 1169, 1173 (9th Cir. 2008). Here the evidence was much weaker; two consultants 20 thought that Plaintiff was not impaired at all [AR 19], and the examining psychiatrist only 21 suggested that Plaintiff had a moderate impairment in concentration, persistence and pace. 22 [AR 300-01] Under these circumstances, the Court cannot say that the Administrative Law 23 Judge erred when he placed a limitation on Plaintiff’s work, limiting him to simple and 24 repetitive tasks. Compare Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173-74 (9th Cir. 25 2008). 26 Plaintiff’s second argument spins off the first. He asserts that the 27 Administrative Law Judge did not include all the proper limitations about Plaintiff’s 28 capacity in the hypothetical question he asked the vocational expert. Again, Plaintiff -2- 1 references the issue of his ability in the “concentration, persistence and pace” category. An 2 administrative law judge is not required to include limitations in a hypothetical question 3 if the limitations are not supported by substantial evidence. Osenbrock v. Apfel, 240 F.3d 4 1157, 1164-65 (9th Cir. 2000). The Administrative Law Judge was within his authority 5 here in crafting the question he presented. There was no error. In accordance with the foregoing, the decision of the Commissioner is 6 7 8 affirmed. DATED: March 9, 2012 9 10 11 RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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