Grether Amela Davila v. Andrew Saul

Filing 25

MEMORANDUM OPINION by Magistrate Judge Charles F. Eick. Plaintiff's motion for summary judgment is denied and Defendant's motion for summary judgment is granted. LET JUDGMENT BE ENTERED ACCORDINGLY. (See document for details) (vmun)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 GRETHER A. D., ) ) Plaintiff, ) ) v. ) ) ANDREW SAUL, Commissioner of ) Social Security, ) ) Defendant. ) ____________________________________) NO. CV 20-3356-E MEMORANDUM OPINION 17 18 PROCEEDINGS 19 20 Plaintiff filed a complaint on April 9, 2020, seeking review of 21 the Commissioner’s denial of benefits. 22 proceed before a United States Magistrate Judge on October 28, 2020. 23 Plaintiff filed a motion for summary judgment on February 3, 2021. 24 Defendant filed a motion for summary judgment on April 19, 2021. 25 Court has taken the motions under submission without oral argument. 26 See L.R. 7-15; “Order,” filed April 13, 2020. 27 /// 28 /// The parties consented to The 1 BACKGROUND 2 3 Plaintiff filed an application for supplemental security income 4 on January 30, 2017 (Administrative Record (“A.R.”) 203-12). 5 Plaintiff asserts disability since August 11, 2016, based on alleged 6 “mental illness” (i.e., epilepsy and anxiety) (A.R. 51, 203, 238). 7 Administrative Law Judge (“ALJ”) reviewed the record and heard 8 testimony from Plaintiff, Plaintiff’s mother and a vocational expert 9 (A.R. 21-34, 39-67).1 10 11 The ALJ found that Plaintiff has severe epilepsy and anxiety 12 (A.R. 23). 13 residual functional capacity to perform a range of medium work as 14 defined in 20 C.F.R. § 416.967(c): However, the ALJ also found that Plaintiff retains the 15 16 She can lift, carry, push and pull 50 lbs. occasionally and 17 25 lbs. frequently. 18 in an 8-hour workday and sit for 6 hours in an 8-hour 19 workday. 20 She can occasionally climb ramps or stairs. 21 occasionally balance, stoop, kneel, crouch, and crawl. 22 can frequently perform fine and gross manipulation. She can stand and/or walk for 6 hours She can never climb ladders, ropes, or scaffolds. She can She She 23 1 24 25 26 27 28 Plaintiff had filed a previous application for benefits, which had been denied. See A.R. 75-86 (prior ALJ’s decision), 91-96 (Appeals Council’s prior denial of review), 10008 (order and judgment in Grether A.D. v. Colvin, C.D. Cal. Case No. CV 15-04504-DTB, affirming the administrative decision). As detailed below, the present ALJ found new and material evidence demonstrating “changed circumstances” to rebut any presumption of continuing nondisability, and the ALJ proceeded through the sequential evaluation process (A.R. 21-34). 2 An 1 should have no exposure to unprotected heights or dangerous 2 machinery. 3 simple, routine, and repetitive tasks, involving no fast 4 paced or production type work. 5 interaction with the general public and have only occasional 6 interaction with supervisors and coworkers. 7 perform work that requires teamwork or close collaboration 8 with others. She cannot operate vehicles. She can perform She should have no She cannot 9 10 (A.R. 26). 11 capacity could work as a night cleaner (Dictionary of Occupational 12 Titles (“DOT”) “358.687-010,” medium work), cleaner (DOT 13 “323.687-014,” light work), and advertising material distributor (DOT 14 “230.687-010,” light work) (A.R. 33-34 (adopting vocational expert 15 testimony at A.R. 60-62)). 16 34). The ALJ found that a person with this residual functional Accordingly, the ALJ denied benefits (A.R. 17 18 19 The Appeals Council considered additional evidence, but denied review (A.R. 1-5; see also A.R. 314-74). 20 21 STANDARD OF REVIEW 22 23 Under 42 U.S.C. section 405(g), this Court reviews the 24 Administration’s decision to determine if: (1) the Administration’s 25 findings are supported by substantial evidence; and (2) the 26 Administration used correct legal standards. 27 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 28 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 3 See Carmickle v. 1 682 F.3d 1157, 1161 (9th Cir. 2012). 2 relevant evidence as a reasonable mind might accept as adequate to 3 support a conclusion.” 4 (1971) (citation and quotations omitted); see also Widmark v. 5 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). Substantial evidence is “such Richardson v. Perales, 402 U.S. 389, 401 6 7 If the evidence can support either outcome, the court may 8 not substitute its judgment for that of the ALJ. 9 Commissioner’s decision cannot be affirmed simply by 10 isolating a specific quantum of supporting evidence. 11 Rather, a court must consider the record as a whole, 12 weighing both evidence that supports and evidence that 13 detracts from the [administrative] conclusion. But the 14 15 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 16 quotations omitted). 17 18 Where, as here, the Appeals Council “considers new evidence in 19 deciding whether to review a decision of the ALJ, that evidence 20 becomes part of the administrative record, which the district court 21 must consider when reviewing the Commissioner’s final decision for 22 substantial evidence.” 23 “[A]s a practical matter, the final decision of the Commissioner 24 includes the Appeals Council’s denial of review, and the additional 25 evidence considered by that body is evidence upon which the findings 26 and decision complained of are based.” 27 /// 28 /// Brewes v. Commissioner, 682 F.3d at 1163. 4 Id. (citations and quotations 1 omitted).2 2 the first time to the Appeals Council. Thus, this Court has reviewed the evidence submitted for 3 4 DISCUSSION 5 6 After consideration of the record as a whole, Defendant’s motion 7 is granted and Plaintiff’s motion is denied. 8 findings are supported by substantial evidence and are free from 9 material3 legal error. The Administration’s Plaintiff’s contrary arguments are unavailing. 10 11 I. Relevant Portions of the Record 12 13 A. The Treatment Evidence 14 15 The record does not contain many treatment records relating to 16 Plaintiff’s epilepsy. 17 July of 2016, reporting that she had a seizure despite having taken 18 /// Plaintiff presented to Bell Medical Clinic in 19 20 21 22 23 24 25 26 27 28 2 And yet, the Ninth Circuit sometimes had stated that there exists “no jurisdiction to review the Appeals Council’s decision denying [the claimant’s] request for review.” See, e.g., Taylor v. Commissioner, 659 F.3d 1228, 1233 (9th Cir. 2011); but see Smith v. Berryhill, 139 S. Ct. 1765 (2019) (court has jurisdiction to review Appeals Council’s dismissal of request for review as untimely); see also Warner v. Astrue, 859 F. Supp. 2d 1107, 1115 n.10 (C.D. Cal. 2012) (remarking on the seeming irony of reviewing an ALJ’s decision in the light of evidence the ALJ never saw). 3 The harmless error rule applies to the review of administrative decisions regarding disability. See Garcia v. Commissioner, 768 F.3d 925, 932-33 (9th Cir. 2014); McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011). 5 1 her medications daily (A.R. 377; see also A.R. 388 (report of same)). 2 Her medications were continued (A.R. 378). 3 4 In October of 2016, Plaintiff presented to neurologist Dr. 5 Munther Hijazin, reporting a history of seizures since age seven, 6 developmental delay, a learning disability, forgetfulness, depression, 7 anxiety and headaches, for which Dr. Hijazin continued Plaintiff’s 8 medications (A.R. 381, 384-85). 9 reportedly was doing well and had not had a seizure since June or July In December of 2016, Plaintiff 10 of 2016 (A.R. 381, 383, 565; see also A.R. 388-92, 560-70 (neurology 11 treatment notes in 2016 and 2017 reporting no new seizures)). 12 and October of 2018, Plaintiff reported no new seizures since January 13 of 2018 (A.R. 571, 574). 14 notes regarding any January, 2018 seizure. In May The record does not contain any treatment 15 16 Plaintiff returned to the Bell Medical Clinic in May of 2018, 17 complaining of almost daily migraines (A.R. 514-15). 18 began a trial of Imitrex (A.R. 514-15). Plaintiff then 19 20 Mental health treatment notes generally suggest that Plaintiff’s 21 symptoms of depression and anxiety were adequately controlled with 22 medications. 23 control); A.R. 413 (April, 2016 note reporting Plaintiff was “doing 24 well”); A.R. 416 (June, 2016 note reporting Plaintiff was “doing good 25 in school”); A.R. 419 (August, 2016 note reporting Plaintiff was 26 “doing well on her meds”); A.R. 422 (September, 2016 note reporting 27 Plaintiff was “responding well to meds”); A.R. 485 (September, 2017 28 note reporting Plaintiff had been taking her medication and See, e.g., A.R. 407 (February, 2016 note reporting 6 1 “everything is fine”); A.R. 476 (January, 2018 note reporting 2 Plaintiff was “taking her meds as rx’d and noticing feeling better, no 3 mania, no psychosis, > mood/energy, feeling happy. . . .”); A.R. 494 4 (April, 2018 note reporting that Plaintiff felt things were “good” and 5 she was happy); A.R. 495 (July, 2018 note reporting that Plaintiff was 6 “ok” and doing well). 7 8 9 Starting in January of 2016, Plaintiff attended mental health treatment by telephone (A.R. 431-47). In March of 2016, Plaintiff 10 reported concern in connection with school and her “SSI appeal” – 11 Plaintiff “[did] not want to affect her eligibility” (A.R. 433). 12 Plaintiff reportedly was encouraged to enroll back in her continuation 13 program to get her GED (A.R. 433). In June and August of 2016, 14 Plaintiff expressed concern over financial stressors and sought help 15 applying for a reduced fare bus pass so she could attend school (A.R. 16 435-37). 17 August of 2016, due to Plaintiff’s isolation and supposed difficulty 18 “motivating self” (A.R. 438). 19 provider reported that Plaintiff had symptoms of depressed mood which 20 “display impairments in employment, education and social support” 21 (A.R. 441). 22 things were “good” and she was not having any problems or symptoms at 23 that time (A.R. 442). Plaintiff’s treatment provider went to her home later in In October of 2016, Plaintiff’s However, in November of 2016, Plaintiff reported that 24 25 A “Community Functioning Evaluation” from October of 2016 26 asserted that Plaintiff needed assistance with her social skills and 27 her independent/daily living skills in that she: (a) had difficulty 28 developing friendships and interacting with others because of her 7 1 anxiety; (b) needed help from her mother with daily activities; and 2 (c) needed reminders due to poor concentration and anxiety (A.R. 406). 3 However, a January, 2017 mental status examination reported results 4 within normal limits (A.R. 400-02). 5 examination also reported results within normal limits (A.R. 462-64). A January, 2018 mental status 6 7 In February of 2018, another “Community Functioning Evaluation” 8 asserted that Plaintiff needed assistance with concentration and time 9 management skills because Plaintiff supposedly was having “difficulty 10 concentrating and completing tasks” (A.R. 467). 11 Plaintiff denied any depressive episodes (A.R. 468). 12 Plaintiff reported that she needed only two classes to complete her 13 GED and then she might transfer to college (A.R. 496). 14 asked how doing so might affect her SSI appeal (A.R. 496). 15 stated that she wanted to continue with school and, if possible, “get 16 a career,” but she was afraid her mother “might get mad” (A.R. 496). At that time, In July of 2018, Plaintiff Plaintiff 17 18 In August of 2018, Plaintiff indicated that she had no major 19 depressive episodes, that she had been denied SSI for her epilepsy and 20 that she was “now using mental health as a reason for SSI application 21 submittal” (A.R. 470; but see A.R. 497 (August, 2018 treatment note 22 indicating that Plaintiff said she had been “fine” and things were 23 good). 24 family feel she is unable to work. 25 her, she states that mother has her doing a lot of chores & she is 26 unable to go out or have a BF [boyfriend]” (A.R. 470). 27 /// 28 /// Her treatment provider noted, “I’m uncertain as to why she & Family tends to be protective of 8 1 In September of 2018, Plaintiff reported that she was in the 2 process of ending her classes and that she wanted to start a program 3 to train for a job (A.R. 498). 4 for SSI to be affected by her decision” (id.). 5 Plaintiff reportedly was interested in applying for a vocational 6 program through the Department of Rehabilitation, but Plaintiff had 7 been informed by a representative of the Department that applying for 8 a vocational program might affect Plaintiff’s SSI appeal (A.R. 500). However, she “did not want her case In October of 2018, 9 10 B. The Opinion Evidence 11 12 Consultative examiner Dr. Rosa Colonna examined Plaintiff and 13 prepared a Complete Psychological Evaluation, dated April 12, 2017 14 (A.R. 450-54). 15 she was seven years old, and depression, anxiety and insomnia since 16 2008 (A.R. 451). 17 language classes” and reported she was able to do her personal care 18 and household chores, use the computer and watch television (A.R. 19 451). 20 “suboptimal,” her intellectual functioning was estimated to be in the 21 low average range, she had a euthymic mood, mildly diminished memory, 22 attention and concentration, poor fund of knowledge, and an IQ score 23 of 80 (which Dr. Colonna believed to be an underestimation 24 “particularly on the memory testing due to inconsistencies with 25 reported activities of daily living”) (A.R. 452-53). 26 diagnosed dysthymia, high borderline to low average intellectual 27 functioning per testing and probable low average intellectual 28 functioning per activities of daily living (A.R. 453). Plaintiff reported having had a seizure disorder since Plaintiff was attending “English as a second On mental status examination, Plaintiff’s effort was 9 Dr. Colonna Dr. Colonna 1 assigned a Global Assessment of Functioning (“GAF”) score of 60 2 (id.).4 3 understand, remember and carry out short, simplistic instructions 4 without difficulty, would have mild inability to understand, remember 5 and carry out detailed instructions, could make simplistic work- 6 related decisions without special supervision, could interact 7 appropriately with supervisors, coworkers and peers, and could manage 8 finances on her own (A.R. 453-54). Dr. Colonna opined that Plaintiff would be able to 9 10 Consultative psychologist Dr. Steven I. Brawer examined Plaintiff 11 and prepared a Psychological Evaluation, dated January 28, 2019 (A.R. 12 577-84). 13 receptive and expressive verbal abilities and mild attentional 14 deficits which required that questions and instructions be repeated on 15 occasion (A.R. 577). 16 adequate effort” (A.R. 577). 17 seizures approximately once a year (A.R. 578). 18 job application three to four years earlier (A.R. 578). 19 reported that she was depressed because she stays at home and does not 20 study or work (A.R. 578). 21 “depression and future suicidal thoughts” (A.R. 578). 22 that her problems affect her ability to work “because I’m worried that Plaintiff appeared slightly withdrawn, with mildly limited Plaintiff appeared “to be putting forth an Plaintiff reported suffering grand mal She last submitted a Plaintiff Plaintiff reportedly was worried by her Plaintiff said 23 24 25 26 27 28 4 The GAF scale is used by clinicians to report an individual’s overall level of functioning. See American Psychological Association, Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. 2000) (“DSM”). A GAF of 51-60 indicates “[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork).” Id. 10 1 I’ll faint and have seizures” (A.R. 578). 2 able to manage her personal care, do household chores (but not 3 cooking), go shopping, run errands, exercise at the gym, talk on the 4 telephone, watch television, listen to music and take bus 5 transportation with others (A.R. 579). 6 Plaintiff had somewhat concrete thinking, slightly withdrawn mood, 7 constricted affect with current symptoms of depression and anxiety 8 reported, and somewhat mildly diminished attention span, but an 9 ability to sustain concentration and to work without distraction Plaintiff reportedly was On mental status examination, 10 “during performance tasks” (A.R. 580). 11 the borderline range of nonverbal intelligence, in the low average 12 range for visual memory, in the borderline range for auditory memory, 13 visual working memory, intermediate memory and delayed memory, in the 14 borderline range for short-term visual memory, and in the borderline 15 range for word reading, sentence comprehension, spelling and math 16 computation (A.R. 581-83). 17 disorder (recurrent, moderate per report), and nonverbal intellectual 18 functioning in the borderline to average range (A.R. 583). 19 opined that Plaintiff can learn simple, repetitive tasks and likely 20 can perform some detailed, varied or complex nonverbal tasks (A.R. 21 584). 22 periods may be mildly diminished due to emotional factors (A.R. 584). 23 Plaintiff may have moderate limitations in her ability to manage 24 customary work stress and to “persist for a regular workday” (A.R. 25 584). 26 moderate limitations “in organizing for high level tasks” (A.R. 584). 27 Plaintiff would be able to work independently on basic tasks, and may 28 /// Testing placed Plaintiff in Dr. Brawer diagnosed major depressive Dr. Brawer Her ability to sustain attention and concentration for extended Plaintiff would be capable of following a routine but may have 11 1 have mild limitations sustaining cooperative relationships with 2 coworkers and supervisors (A.R. 584). 3 4 Consultative examiner Dr. Sarah L. Maze Prepared a Neurological 5 Evaluation dated June 15, 2017 (A.R. 457-60). 6 reported seizure was in June of 2016 (A.R. 457). 7 of monthly headaches for the past year (A.R. 457). 8 Plaintiff was cooperative with reduced insight and “somewhat 9 simplistic speech” (A.R. 458). Plaintiff’s last Plaintiff complained On examination, She spoke very little English, 10 recalled two out of three items after five minutes, followed simple 11 instructions, and had impaired intelligence which appeared to be in 12 the dull normal to borderline range (A.R. 458-59). 13 seizure disorder and opined that Plaintiff was capable of medium work 14 (i.e., lifting 50 pounds occasionally, 25 pounds frequently, standing 15 and walking six hours in an eight hour day and sitting six hours in an 16 eight hour day), with frequent fine motor activities with her hands 17 and legs (A.R. 459-60). Dr. Maze diagnosed 18 19 State agency physicians reviewed the record in May and July of 20 2017 and opined that Plaintiff’s mental impairment(s) were non-severe 21 (A.R. 109-21). 22 exertional limitations, but she would have some postural and 23 environmental limitations (i.e., no climbing ladders, ropes or 24 scaffolds, no exposure to hazards and no operation of vehicles) (id.). 25 /// 26 /// 27 /// 28 /// According to these physicians, Plaintiff would have no 12 1 C. The Hearing Testimony 2 3 At the March, 2019 hearing, Plaintiff testified that she could 4 not work because of her epilepsy and “nerves” (anxiety) (A.R. 51). 5 Plaintiff said her most recent seizure occurred in January of 2018 6 (A.R. 51). 7 seizure in two years (A.R. 52). 8 medications (A.R. 52). 9 every two months for her anxiety (A.R. 52). Prior to that seizure, Plaintiff had not suffered a Plaintiff was taking anti-seizure Plaintiff also was seeing a psychologist once Her doctor reportedly 10 prescribed anxiety medication (A.R. 52). 11 medication sometimes worked and sometimes did not work (A.R. 52). According to Plaintiff, the 12 13 Plaintiff had unsuccessfully applied for jobs at fast food 14 restaurants and at a motel (A.R. 47). 15 like to work, but she said employers would not hire her (A.R. 50-51).5 Plaintiff claimed she would 16 17 Plaintiff testified that she lived with her mother and spent her 18 days watching television, listening to music, sometimes helping with 19 cleaning and doing “the wash,” and going to the corner store near her 20 house under her mother’s supervision (A.R. 48-50). When Plaintiff was 21 22 23 24 25 26 27 28 5 Plaintiff reportedly has a developmental delay and borderline intellectual functioning (A.R. 43). At the time of the hearing, she was 27 years old and scheduled to finish her high school education within a few months (A.R. 43). Plaintiff attended adult school – where her classes were in English – and she passed her classes with some difficulty (A.R. 49). Plaintiff’s counsel argued that Plaintiff’s intellectual functioning would limit her to performing one- and two-step instructions with extra supervision (A.R. 43-45). The vocational expert opined that, if Plaintiff were so limited, there would be no jobs she could perform, given her other limitations (A.R. 61, 64). 13 1 going to school, Plaintiff’s brother would take Plaintiff to the bus 2 stop, but Plaintiff would take the bus alone, to and from school, 3 Monday through Friday (A.R. 59-60). 4 5 Plaintiff’s mother testified that Plaintiff helps out in the 6 kitchen at home, but only under the mother’s supervision and 7 instruction because Plaintiff has a limited intellect and a history of 8 three suicide attempts (A.R. 53-55). 9 open because her mother was afraid Plaintiff might have a seizure Plaintiff bathes with the door 10 (A.R. 56). 11 market a block away from where they live because Plaintiff’s mental 12 capacity is like that of a little girl (A.R. 56-57). 13 mother also said Plaintiff cannot be left alone (A.R. 58). Plaintiff’s mother said she watches Plaintiff go to the Plaintiff’s 14 15 16 The ALJ asked the vocational expert to consider a person who “could perform medium work” and who: 17 18 . . . should never climb ladders, ropes or scaffolds. 19 could occasionally climb ramps and stairs. 20 frequently balance, stoop, kneel, crouch, and crawl. 21 could frequently engage in fine gross manipulation. 22 should be no unprotected heights or dangerous machinery. 23 operation of a vehicle. 24 routine, repetitive tasks. 25 fast pace or a production pace. 26 general public, and only occasional interaction with 27 supervisors and coworkers. 28 teamwork or close collaboration with others. They They could They There They would be limited to simple, There should be no work at a No interaction with the And no jobs that require 14 No 1 (A.R. 60-61). 2 job and two light jobs such a person could perform (i.e., night 3 cleaner (DOT 358.687-101 [sic]6 medium work with a Specific Vocational 4 Preparation (“SVP”) level two); cleaner (DOT 323.687-014, light); and 5 advertising material distributor (DOT 230.687-010, light)) (A.R. 61- 6 62). 7 vocational expert omitting the frequent manipulation limit and adding 8 a limit to one- and two-step tasks, and the vocational expert asked 9 for clarification regarding what the hypothetical question included 10 The vocational expert purportedly identified one medium After some discussion, the ALJ posed another hypothetical to the (A.R. 63-64). The ALJ replied: 11 12 It’s 50, 25, 6 or [sic] 8, 6 of 8, never climb ladders, 13 ropes or scaffolds, occasionally climb ramps and stairs, 14 frequently balance, stoop, kneel, crouch, and crawl. No 15 unprotected heights or dangerous machinery. 16 a vehicle. 17 be one and two-step tasks. 18 interaction with the general public. 19 interaction with supervisors and coworkers. 20 that require teamwork or close collaboration with others. 21 Simple routine, repetitive tasks. These would No fast-paced work. No Only occasional And no jobs /// 22 No operation of /// 23 6 24 25 26 27 28 This DOT reference appears to have been an error. There is no entry under this number in the current DOT. There is an entry for DOT 358.687-010, Change-House Attendant, which involves medium janitor-type work for locker or shower rooms. See DOT 358.687-010, 1991 WL 672957. It is unclear whether the vocational expert intended to reference Change-House Attendant work in her testimony. A housecleaner, also known as a “night cleaner,” is DOT 323.687-018 and is classified as heavy work. See DOT 323.687-018, 1991 WL 672784. 15 1 (A.R. 64). 2 person with that capacity could perform (A.R. 64). The vocational expert did not identify any jobs that a 3 4 The vocational expert testified that her testimony was consistent 5 with the DOT and the Selected Characteristics Handbook (A.R. 64-65). 6 At the hearing, Plaintiff’s counsel did not challenge the vocational 7 expert’s testimony (A.R. 65-66). 8 9 10 II. Substantial Evidence Supports the Conclusion that Plaintiff Can Work. 11 12 Substantial evidence supports the ALJ’s conclusion Plaintiff is 13 not disabled. 14 endorsed a capacity less than, or equal to, the residual functional 15 capacity for medium work assessed by the ALJ. 16 459-60, 584 (consultative examiners’ opinions finding Plaintiff was 17 capable of medium work performing simple tasks and interacting with 18 others) with A.R. 26-33 (ALJ’s assessment). 19 substantial evidence to support the ALJ’s determination of non- 20 disability. 21 (opinion of examining physician based on independent clinical findings 22 can provide substantial evidence to support administrative conclusion 23 of non-disability). 24 Plaintiff retains a residual functional capacity for work at all 25 exertion levels with no mental limitations provide further substantial 26 evidence supporting the ALJ’s decision. 27 F.3d 1144, 1149 (9th Cir. 2001) (opinion of non-examining physician 28 “may constitute substantial evidence when it is consistent with other As summarized above, the consultative examiners Compare A.R. 453-54, These opinions constitute See Orn v. Astrue, 495 F.3d 625, 631-32 (9th Cir. 2007) The state agency physicians’ opinions that 16 See Tonapetyan v. Halter, 242 1 independent evidence in the record”); Andrews v. Shalala, 53 F.3d 2 1035, 1041 (9th Cir. 1995) (where the opinions of non-examining 3 physicians do not contradict “all other evidence in the record” an ALJ 4 properly may rely on these opinions). 5 source opined that Plaintiff had materially greater limitations than 6 those the ALJ found to exist. 7 physician’s opinion concerning Plaintiff’s functional limitations. Significantly, no medical The record contains no treating 8 9 As summarized above, the vocational expert testified that a 10 person who “could perform medium work” with the limitations the ALJ 11 found to exist could work as a night cleaner, cleaner and advertising 12 material distributor (A.R. 61-64). 13 (see footnote 6 supra), the vocational expert still identified two 14 jobs that such a person could perform (id.). 15 on the vocational expert’s testimony in denying disability benefits. 16 See Barker v. Secretary of Health and Human Services, 882 F.2d 1474, 17 1478-80 (9th Cir. 1989); Martinez v. Heckler, 807 F.2d 771, 774-75 18 (9th Cir. 1986). 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// Excluding the night cleaner job 17 The ALJ properly relied 1 III. Plaintiff’s Arguments are Unavailing.7 2 3 Plaintiff argues that the ALJ’s hypothetical questioning of the 4 vocational expert was incomplete because the ALJ assertedly did not 5 include a limitation to standing and/or walking six hours in an eight 6 hour workday. 7 that the ALJ erred in finding Plaintiff capable of performing a wider 8 range of work than Plaintiff was found capable of performing during 9 Plaintiff’s prior application for disability benefits. 10 See Plaintiff’s Motion, pp. 5-7. Plaintiff also argues See Plaintiff’s Motion, pp. 8-10. 11 12 A. 13 The ALJ Did Not Materially Err in the Hypothetical Questioning of the Vocational Expert. 14 15 Social Security Ruling (“SSR”) 83-10 defines “medium work” as 16 requiring “standing or walking, off and on, for a total of 17 approximately 6 hours in an 8-hour workday,” and the same SSR provides 18 that “sitting may occur intermittently during the remaining time.” SSR 19 83-10, 1983 WL 31251, at *6. 20 hypothetical question expressly included a limitation to “medium 21 work,” and the ALJ later stated “6 or 8” and “6 of 8,” presumably 22 referencing the sitting and standing/walking limitations of medium As detailed above, the ALJ’s 23 24 25 26 27 28 7 The Court has considered and rejected all of Plaintiff’s arguments. The Court discusses Plaintiff’s principal arguments herein. Neither Plaintiff’s arguments nor the circumstances of this case show any “substantial likelihood of prejudice” resulting from any error allegedly committed by the ALJ. See generally McLeod v. Astrue, 640 F.3d 881, 887-88 (9th Cir. 2011) (discussing the standards applicable to evaluating prejudice). 18 1 work (A.R. 60-64). 2 of the vocational expert was not materially incomplete. 3 v. Saul, 2019 WL 8112507, at *2 (C.D. Cal. Dec. 13, 2019) (“Given that 4 SSR 83-10 has been in play for over thirty years, there is no reason 5 to think the [vocational expert] understood light work to encompass 6 anything other than approximately six hours of standing or walking.”); 7 James T. v. Saul, 2019 WL 3017755, at *2 (C.D. Cal. July 10, 2019) 8 (“SSR 83-10 was published in 1983. 9 [vocational experts] with experience conducting social security On this record, the ALJ’s hypothetical questioning See Mitzi D. Since that time, ALJs and 10 disability benefits hearings have understood medium work as requiring 11 the ability to stand or walk for up to 6 hours. 12 reference to medium work supplied a 6-hour limitation on walking and 13 standing, and the ALJ did not pose an incomplete hypothetical to the 14 [vocational expert].”); see also Lawson v. Saul, 2020 WL 6055148, at 15 *4 (S.D. Cal. Oct. 13, 2020) (“numerous courts have interpreted SSR 16 83-10 to entail the ability to stand and walk for only six hours”; 17 collecting cases and rejecting claim that failure to mention standing 18 and walking limitations rendered hypothetical question referencing 19 “medium work” incomplete), appeal filed, No. 20-56205 (9th Cir. 20 Nov. 17, 2020); Christopher P. v. Saul, 2020 WL 551596, at *3 (C.D. 21 Cal. Jan. 31, 2020) (“By definition, a full range of medium work 22 involves . . . standing or walking up to approximately six hours in an 23 eight-hour workday”; “the ALJ's reference to medium work in his 24 hypothetical sufficiently capture[d] the standing and walking 25 limitations”); Bailey v. Astrue, 2010 WL 1233459, at *6 (C.D. Cal. 26 Mar. 22, 2010) (because “both light and medium work by definition 27 require standing or walking approximately six hours of an eight hour 28 day,” the ALJ’s hypothetical, which referenced light work but not the 19 Thus, the ALJ’s 1 standing and walking limitations, was proper); but see Linda H. v. 2 Saul, 2020 WL 1244359, at *5 (C.D. Cal. Mar. 16, 2020) (deeming 3 hypothetical question regarding medium work incomplete where the ALJ 4 did not inquire of the vocational expert whether a person limited to 5 standing and/or walking six hours per day could do a job that the 6 vocational expert said would permit no sitting “at all”). 7 8 9 Plaintiff argues that the Court may not conclude on this record that the jobs identified are performable by a person limited to 10 standing/walking for 6 hours out of an 8 hour day. 11 Motion, pp. 6-7. 12 (1) the DOT descriptions for the jobs identified; (2) Occupational 13 Information Network (“ONET”) data for the occupations of janitor and 14 cleaner, maid and housekeeping cleaner, and production worker; 15 (3) “Occu Collect” data provided by Plaintiff to the Appeals Council 16 at A.R. 314-74;8 and (4) “commonsense understanding.” 17 argument is unpersuasive. See Plaintiff’s In so arguing, Plaintiff purports to rely on: Plaintiff’s 18 19 20 First, the DOT does not address standing/walking requirements; the DOT addresses a “strength” requirement in terms of “pounds of 21 22 23 24 25 26 27 28 8 A colleague of the undersigned recently observed that: Occu Collect is a for-profit company and historical archive, for which Plaintiff’s attorney [Lawrence D. Rohlfing] is the president and has a 51% financial interest. See Tommy D. J. v. Saul, 2021 WL 780479, at *3 n. 3 (C.D. Cal. Mar. 1, 2021) (citations and quotations omitted) (Occu Collect is a “non-DOT” source of alternative job information; ALJ need not reconcile conflicts between a vocational expert’s testimony and a non-DOT source). 20 1 force” exerted. 2 Hospital); DOT 230.687-010, 1991 WL 672162 (Advertising-Material 3 Distributor). See, e.g., DOT 323.687-010, 1991 WL 672782 (Cleaner, 4 5 Second, the non-DOT sources Plaintiff cites are not conclusive 6 regarding the standing requirements for the jobs the vocational expert 7 identified. 8 the ALJ had been presented with these sources, the ALJ would have had 9 no duty to consider whether the vocational expert’s testimony was The ALJ was not presented with these sources and, even if 10 consistent with these sources. 11 1102, 1108-10 (9th Cir. 2017) (“Shaibi”) (when a claimant who is 12 represented by counsel fails to challenge a vocational expert’s job 13 numbers during administrative proceedings, the claimant forfeits such 14 a challenge on appeal;9 an ALJ need not resolve conflicts between 15 vocational expert testimony and a source other than the DOT, and an 16 ALJ need not inquire sua sponte into the foundation for the expert’s 17 opinion), as amended (Feb. 28, 2018); see also Talley v. Saul, 2020 WL 18 8361923, at *1 (C.D. Cal. Dec. 17, 2020) (collecting cases rejecting 19 claims that vocational expert testimony conflicted with ONET and Occu 20 Collect information; ALJ did not have to consider whether the 21 vocational expert’s testimony was consistent with these sources), 22 appeal filed, No. 21-55071 (9th Cir. Jan. 28, 2021). 23 properly determined from the testimony of the vocational expert that See Shaibi v. Berryhill, 883 F.3d Here, the ALJ 24 25 26 27 28 9 Because the administrative decision in the present case is adequately supported for the other reasons discussed herein, this Court need not and does not determine whether Shaibi’s forfeiture-related holding survives the United States Supreme Court’s recent decision in Carr v. Saul, 2021 WL 1566608 (U.S. April 22, 2021). 21 1 the expert’s opinions did not conflict with the DOT. 2 obvious conflict between Plaintiff’s limitation to standing and 3 walking six hours in an eight-hour day and the jobs the vocational 4 expert identified. There was no 5 6 B. The ALJ Did Not Materially Err in Finding Plaintiff Capable 7 of a Greater Residual Functional Capacity than the Capacity 8 Found During the Prior Administrative Proceedings. 9 10 Plaintiff argues that the ALJ erred in finding Plaintiff capable 11 of medium work with occasional interaction with supervisors and 12 coworkers and no work involving teamwork or cooperation, because, 13 during prior administrative proceedings, Plaintiff had been found 14 capable of light work with only superficial and incidental contact 15 with others. 16 Social Security Acquiescence Ruling 97-4(9)). See Plaintiff’s Motion, pp. 8-10 (citing Chavez and 17 18 The prior ALJ found that Plaintiff had severe epilepsy and 19 depression, not otherwise specified, and retained a residual 20 functional capacity for a range of light work which would not require 21 any interaction with others apart from superficial and incidental 22 contact (A.R. 77, 79). 23 disabled (id.). 24 final. 25 Court’s order affirming the administrative decision on review). The prior ALJ also found Plaintiff not The prior ALJ’s decision was upheld on appeal and is See A.R. 91-108 (Appeals Council’s denial of review and this 26 27 Acquiescence Ruling 97-4(9), 1997 WL 742758 (adopting Chavez), 28 applies to cases such as this one involving a subsequent disability 22 1 claim with an unadjudicated period arising under the same title of the 2 Social Security Act as a prior claim in which there has been a final 3 administrative decision that the claimant is not disabled. 4 final determination of nondisability creates a presumption of 5 continuing nondisablity in the unadjudicated period. Id.; Lester v. 6 Chater, 81 F.3d 821, 827 (9th Cir. 1995). 7 of nondisability, a claimant bears the burden of proving changed 8 circumstances. 9 circumstances include the alleged existence of impairment(s) not A previous To overcome the presumption See Chavez, 844 F.2d at 693. Such changed 10 previously considered. 11 742758 at *3; Lester, 81 F.3d at 827 (same; “claimant need not . . . 12 demonstrate that his medical or psychiatric condition has worsened to 13 show changed circumstances”). See Acquiescence Ruling 97-4(9), 1997 WL 14 15 In the present case, Plaintiff asserted that she was unable to 16 work due in part to her “nerves” (anxiety), an impairment Plaintiff 17 had not alleged specifically during the prior administrative 18 proceedings. 19 83 (prior ALJ’s decision discussing Plaintiff’s alleged impairments). 20 Accordingly, the ALJ discerned “new and material evidence 21 demonstrating ‘changed circumstances’” to overcome the presumption of 22 continued nondisability. 23 then proceeded through the sequential analysis and found Plaintiff 24 capable of a range of medium work which allowed for occasional contact 25 with supervisors and coworkers (A.R. 22-33). 26 the ALJ thereby erred by assigning a different residual functional 27 capacity, which assessed greater abilities. Compare A.R. 51 (Plaintiff’s allegations) with A.R. 77- See A.R. 21. 28 23 As summarized above, the ALJ Plaintiff argues that See Plaintiff’s Motion, 1 p. 8 (citing Chavez10 and Acquiescence Ruling 97-4(9) to argue that 2 factual findings carry a continuing presumption of application on 3 future claims). 4 5 Acquiescence Ruling 97-4(9) provides that where, as here, a 6 claimant rebuts the presumption of continuing nondisability, the 7 adjudicator must give effect to certain findings from the decision on 8 the prior claim while adjudicating the subsequent claim: 9 10 . . . adjudicators then must give effect to certain findings 11 . . . contained in the final decision by an ALJ or the 12 Appeals Council on the prior claim, when adjudicating the 13 subsequent claim. 14 . . . to a finding of a claimant’s residual functional 15 capacity . . . which was made in the final decision on the 16 prior disability claim. 17 finding from the final decision on the prior claim in 18 determining whether the claimant is disabled with respect to 19 the unadjudicated period unless there is new and material 20 evidence relating to such a finding. . . . For this purpose, this Ruling applies Adjudicators must adopt such a 21 22 Acquiescence Ruling 97-4(9), 1997 WL 742758 at *3. 23 generally found there was “new and material” evidence without further 24 discussion of the prior decision. 25 sequential evaluation process, discussing Plaintiff’s allegations and 26 the updated record, which included new medical source statements Here, the ALJ The ALJ then proceeded through the 27 10 28 Plaintiff’s subsequent argument that Chavez is “dead,” even if correct, would not affect the result herein. 24 1 opining that Plaintiff was capable of medium work with some contact 2 with others (A.R. 21-33). 3 medical evaluations conducted after a prior adjudication, the ALJ is 4 not required to give preclusive effect to findings from the prior 5 adjudication. 6 *5 (E.D. Cal. Feb. 27, 2014); see generally Stubbs-Danielson v. 7 Astrue, 539 F.3d 1169, 1173 (9th Cir. 2008) (evaluations presented 8 after a prior nondisability determination necessarily presented “new 9 and material” information not presented to the first ALJ). Where, as here, an ALJ relies entirely on See, e.g., Trofimuk v. Commissioner, 2014 WL 794343, at 10 11 Assuming, arguendo, the ALJ erred, any error was harmless. In 12 the prior action, the vocational expert testified, and the ALJ found, 13 that light work jobs could be performed by a person having the 14 limitations the prior ALJ found to exist (A.R. 85). 15 findings were upheld on appeal (A.R. 91-108). 16 case, the ALJ had adopted the more restrictive residual functional 17 capacity from the prior decision, Plaintiff still would not have been 18 deemed disabled. 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 25 All of those If, in the present 1 CONCLUSION 2 3 For all of the foregoing reasons, Plaintiff’s motion for summary 4 judgment is denied and Defendant’s motion for summary judgment is 5 granted. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: April 28, 2021. 10 11 12 /S/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 26

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