Pedro Enrigue Medel v. Carolyn W Colvin

Filing 17

MEMORANDUM OPINION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment on counsel for both parties. (See Order for details) (bem)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 PEDRO ENRIQUE MEDEL, 10 Plaintiff, 11 vs. 12 13 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 14 Defendant. 15 ) Case No. EDCV 13-2052-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) AFFIRMING COMMISSIONER ) ) ) ) ) ) ) 16 17 I. 18 PROCEEDINGS Plaintiff seeks review of the Commissioner’s final decision 19 denying his application for Social Security Disability Insurance 20 benefits (“DIB”). The parties consented to the jurisdiction of 21 the undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). 22 This matter is before the Court on the parties’ Joint 23 Stipulation, filed July 3, 2014, which the Court has taken under 24 submission without oral argument. For the reasons stated below, 25 the Commissioner’s decision is affirmed and judgment is entered 26 in her favor. 27 28 1 1 II. BACKGROUND 2 Plaintiff was born November 27, 1969. 3 Record (“AR”) 148.) (Administrative He completed the 12th grade and worked as a 4 machine operator at three different companies and general helper 5 at a company that produced cardboard boxes. 6 (AR 166-67.) Plaintiff filed an application for DIB on February 1, 2010. 7 (AR 71, 148-51.) He alleged that he had been unable to work 8 since October 10, 2008, because of a “[b]ack and legs injury,” 9 “numbness in both hands,” and headaches. (AR 165.) After his 10 application was denied, he requested a hearing before an 11 Administrative Law Judge. (AR 90.) A hearing was held on 12 January 30, 2012, at which Plaintiff, who was represented by 13 counsel, and a vocational expert (“VE”) testified. (AR 32-70.) 14 In a written decision issued August 2, 2012, the ALJ found that 15 Plaintiff was not disabled. (AR 14-27.) On September 11, 2013, 16 the Appeals Council denied Plaintiff’s request for review. 17 1-3.) (AR This action followed. 18 III. STANDARD OF REVIEW 19 Under 42 U.S.C. § 405(g), a district court may review the 20 Commissioner’s decision to deny benefits. The ALJ’s findings and 21 decision should be upheld if they are free of legal error and 22 supported by substantial evidence based on the record as a whole. 23 Id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 24 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence 25 means such evidence as a reasonable person might accept as 26 adequate to support a conclusion. Richardson, 402 U.S. at 401; 27 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 28 is more than a scintilla but less than a preponderance. 2 It 1 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 2 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether 3 substantial evidence supports a finding, the reviewing court 4 “must review the administrative record as a whole, weighing both 5 the evidence that supports and the evidence that detracts from 6 the Commissioner’s conclusion.” 7 720 (9th Cir. 1996). Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support 8 either affirming or reversing,” the reviewing court “may not 9 substitute its judgment” for that of the Commissioner. Id. at 10 720-21. 11 IV. THE EVALUATION OF DISABILITY 12 People are “disabled” for purposes of receiving Social 13 Security benefits if they are unable to engage in any substantial 14 gainful activity owing to a physical or mental impairment that is 15 expected to result in death or which has lasted, or is expected 16 to last, for a continuous period of at least 12 months. 42 17 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 18 (9th Cir. 1992). 19 A. 20 The ALJ follows a five-step sequential evaluation process in The Five-Step Evaluation Process 21 assessing whether a claimant is disabled. 20 C.F.R. 22 § 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th 23 Cir. 1995) (as amended Apr. 9, 1996). In the first step, the 24 Commissioner must determine whether the claimant is currently 25 engaged in substantial gainful activity; if so, the claimant is 26 not disabled and the claim must be denied. § 404.1520(a)(4)(i). 27 If the claimant is not engaged in substantial gainful activity, 28 the second step requires the Commissioner to determine whether 3 1 the claimant has a “severe” impairment or combination of 2 impairments significantly limiting his ability to do basic work 3 activities; if not, a finding of not disabled is made and the 4 claim must be denied. § 404.1520(a)(4)(ii). If the claimant has 5 a “severe” impairment or combination of impairments, the third 6 step requires the Commissioner to determine whether the 7 impairment or combination of impairments meets or equals an 8 impairment in the Listing of Impairments (“Listing”) set forth at 9 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is 10 conclusively presumed and benefits are awarded. 11 § 404.1520(a)(4)(iii). 12 If the claimant’s impairment or combination of impairments 13 does not meet or equal an impairment in the Listing, the fourth 14 step requires the Commissioner to determine whether the claimant 15 has sufficient residual functional capacity (“RFC”)1 to perform 16 his past work; if so, the claimant is not disabled and the claim 17 must be denied. § 404.1520(a)(4)(iv). The claimant has the 18 burden of proving he is unable to perform past relevant work. 19 Drouin, 966 F.2d at 1257. If the claimant meets that burden, a 20 prima facie case of disability is established. Id. If that 21 happens or if the claimant has no past relevant work, the 22 Commissioner then bears the burden of establishing that the 23 claimant is not disabled because he can perform other substantial 24 gainful work available in the national economy. 25 § 404.1520(a)(4)(v). That determination comprises the fifth and 26 27 28 1 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 404.1545; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 4 1 final step in the sequential analysis. § 404.1520; Lester, 81 2 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. 3 B. 4 At step one, the ALJ found that Plaintiff had not engaged in The ALJ’s Application of the Five-Step Process 5 substantial gainful activity since October 10, 2008, his alleged 6 onset date. (AR 16.) At step two, the ALJ concluded that 7 Plaintiff had severe impairments of “chronic cervical strain with 8 mild degenerative disc disease; chronic lumbosacral strain with 9 mild degenerative disc disease; chronic bilateral knee strain; 10 chronic bilateral wrist strain; and obesity.” (Id.) 11 The ALJ found that Plaintiff’s left-knee osteoarthritis, 12 gastrointestinal issues, and depression were not severe (AR 1613 18), findings Plaintiff does not challenge. At step three, the 14 ALJ determined that Plaintiff’s impairments did not meet or equal 15 a Listing. (AR 18.) At step four, she found that Plaintiff 16 retained the RFC to perform “light work,” specifically, he could 17 “lift 20 pounds occasionally and 10 pounds frequently; he can 18 stand and walk for six hours out of an eight-hour workday and sit 19 for six hours out of an eight-hour workday,” and he was “limited 20 to frequent gross handling and fingering.”2 (AR 19.) Based on 21 the VE’s testimony, the ALJ concluded that Plaintiff was able to 22 perform his past relevant work as an “extension edger” as 23 24 25 26 27 28 2 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.” § 404.1567(b). “Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls.” Id. A person who can do light work can generally also do sedentary work. Id. 5 1 generally performed in the regional and national economies. 2 26.) (AR The ALJ therefore concluded that Plaintiff was not 3 disabled. (AR 26-27.) 4 V. DISCUSSION 5 Plaintiff argues that the ALJ erred in (1) evaluating the 6 medical evidence, (2) assessing his credibility, and (3) 7 “develop[ing] and analyz[ing]” the vocational evidence. (J. 8 Stip. at 3-4.) 9 10 A. The ALJ Did Not Err in Assessing the Medical Evidence Plaintiff argues that the ALJ “failed to properly consider 11 relevant medical evidence which is supportive of [Plaintiff’s] 12 claim of disability” (id. at 4), including evidence of his 13 meniscus tears and parts of Dr. Kim’s opinion (id. at 5-6). For 14 the reasons discussed below, reversal is not warranted on this 15 ground. 16 17 1. Applicable law A district court must uphold an ALJ’s RFC assessment when 18 the ALJ has applied the proper legal standard and substantial 19 evidence in the record as a whole supports the decision. 20 v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). Bayliss The ALJ must 21 consider all the medical evidence in the record and “explain in 22 [her] decision the weight given to . . . [the] opinions from 23 treating sources, nontreating sources, and other nonexamining 24 sources.” 20 C.F.R. § 404.1527(e)(2)(ii); see also 25 § 404.1545(a)(1) (“We will assess your residual functional 26 capacity based on all the relevant evidence in your case 27 record.”); SSR 96-8p, 1996 WL 374184, at *2 (July 2, 1996) 28 (same). In making an RFC determination, the ALJ may consider 6 1 those limitations for which there is support in the record and 2 need not consider properly rejected evidence or subjective 3 complaints. See Bayliss, 427 F.3d at 1217 (upholding ALJ’s RFC 4 determination because “the ALJ took into account those 5 limitations for which there was record support that did not 6 depend on [claimant’s] subjective complaints”); Batson v. Comm’r 7 of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (ALJ not 8 required to incorporate into RFC any findings from treating9 physician opinions that were “permissibly discounted”). 10 11 2. Relevant facts3 On February 16, 2008, an MRI of Plaintiff’s left knee 12 revealed “[m]inimal tricompartmental osteoarthritic changes” and 13 “an oblique tear of the posterior horn of the medial meniscus 14 extending to the inferior articular surface.” (AR 248.) An MRI 15 of Plaintiff’s right knee showed an “[o]blique tear of the 16 posterior horn of the medial meniscus extending to the inferior 17 articular surface.” 18 (AR 250.) On July 16, 2008, Dr. David S. Kim, who was board certified 19 in orthopedic surgery, reviewed Plaintiff’s medical records and 20 completed an orthopedic examination as part of Plaintiff’s 21 workers’ compensation case.4 (AR 205-33.) Dr. Kim noted that 22 “clinical examination of [Plaintiff’s] cervical spine reveals 23 3 Because the familiar with the facts, 24 summarized only to parties are relevant to this contested they are the extent issue. 25 4 26 27 28 Dr. Kim was apparently selected by agreement of both parties to examine Plaintiff and render an opinion as to his impairments and limitations. (See AR 205 (Dr. Kim’s notation that he performed evaluation “in [his] capacity as AGREED MEDICAL EVALUATOR”)); see also Cal. Labor Code § 4062.2 (procedure for parties in workers’ compensation case to together select “agreed medical evaluator”). 7 1 complaints of tenderness and loss of cervical range of motion,” 2 but orthopedic testing was negative and x-rays were normal. 3 217.) (AR He found that examination of Plaintiff’s “bilateral 4 hands/wrists reveal[ed] some loss of range of motion and 5 complaints of tenderness,” but “Tinel sign and Phalen testing at 6 this time are negative with no clinical indication of an 7 underlying problem such as carpal tunnel syndrome.”5 (Id.) Dr. 8 Kim noted that examination of Plaintiff’s low back revealed 9 “complaints of tenderness with limited and painful range of 10 motion,” but straight-leg-raising was “negative for a radicular 11 problem.” (Id.) He further noted with regard to Plaintiff’s low 12 back that electrodiagnostic studies revealed “some 13 abnormalities,” but they were “not correlated by clinical 14 examination or the MRI study which only reveals 1 mm disc bulges 15 at two levels with no impingement on neural structures.” 16 (Id.) Finally, Dr. Kim found that examination of Plaintiff’s knees 17 revealed “complaints of tenderness, as well as bilateral knee 18 discomfort with attempts at squatting and positive McMurray 19 maneuver which appears consistent with the MRI studies, revealing 20 tears to the posterior horns of the medial menisci.”6 (Id.) Dr. 21 22 5 Tinel’s sign and Phalen’s sign tests are used to diagnose 23 carpal tunnel syndrome. Carpal Tunnel Syndrome Health Center, 24 WebMD, (last updated Oct. 2, 2012). 25 26 27 28 6 The McMurray’s test is used to diagnose meniscal pathology within the knee joint. Wayne Hing et al., Validity of the McMurray’s Test and Modified Versions of the Test: A Systematic Literature Review, 17 J. Manual & Manipulative Therapy 22-35 (2009), available at PMC2704345/. 8 1 Kim opined that Plaintiff “should avoid very heavy work 2 activities, as well as any activities involving repetitive 3 forceful gripping, grasping, or torquing, and any activities 4 involving prolonged walking or standing.” 5 (AR 221.) On November 12, 2008, Dr. Kim examined Plaintiff and 6 completed a follow-up evaluation (AR 235-44), noting Plaintiff’s 7 report that his condition was “essentially unchanged” from the 8 time of the July 2008 evaluation (AR 243). Dr. Kim diagnosed 9 “[c]hronic cervical sprain/strain”; “[c]hronic bilateral wrist 10 strain”; “[c]hronic lumbosacral sprain/strain, superimposed upon 11 1 mm disc protrusion at L4-5 and L5-S1 per MRI”; “[s]tatus post 12 lower extremity contusions with bilateral knee strains,” and 13 “[o]blique tears of the posterior horns of medial menisci, per 14 MRI studies.” 15 (AR 242.) Dr. Kim noted that at the time of his July 2008 evaluation, 16 Plaintiff had been performing “modified work duties” that had 17 restricted him from lifting more than 20 pounds and provided “a 18 ten minute break after 1.5 hours of work.” (AR 243.) On October 19 10, 2008, however, Plaintiff had been “placed off work as 20 modified duties were no longer available.” (Id.) Dr. Kim found 21 that Plaintiff’s modified work duties fell “within the 22 recommended work restrictions” stated in his July 2008 23 evaluation, and he “believe[d] [Plaintiff] was capable of 24 performing” them. (Id.) Dr. Kim opined that “[f]ollowing review 25 of [Plaintiff’s] entire file, [his] opinions regarding the work 26 restrictions remain as outlined in [his] July 16, 2008 report.” 27 (Id.) 28 On May 13, 2010, Dr. Warren David Yu, a board-certified 9 1 orthopedic surgeon, examined Plaintiff at the Social Security 2 Administration’s request. (AR 408-11.) Dr. Yu diagnosed 3 myofascial neck and back pain, upper-extremity myofascial pain, 4 and anterior knee pain. (AR 411.) He opined that Plaintiff 5 would be able to sit, stand, or walk for up to six hours in an 6 eight-hour day; lift 20 pounds occasionally and 10 pounds 7 frequently; and frequently use his upper extremities for pushing, 8 pulling, fine motor finger movements, handling, and fingering. 9 (Id.) 10 On May 26, 2010, Dr. G. Taylor-Holmes, who specialized in 11 internal medicine,7 reviewed Plaintiff’s medical records and 12 completed a physical-residual-functional-capacity assessment. 13 (AR 412-16.) He noted Plaintiff’s primary diagnoses as 14 myofascial cervical-spine and lumbar-spine pain syndrome and his 15 secondary diagnoses as history of carpal tunnel syndrome and knee 16 strain. (AR 412.) Dr. Taylor-Holmes opined that Plaintiff could 17 lift 20 pounds occasionally and 10 pounds frequently, stand and 18 walk about six hours in an eight-hour day, sit about six hours in 19 an eight-hour day, and perform unlimited pushing and pulling. 20 (AR 413.) The doctor believed that Plaintiff was limited to 21 “frequent” handling and fingering. (AR 414.) Dr. Taylor-Holmes 22 noted that those findings were consistent with Dr. Yu’s. 23 416.) (AR On January 7, 2011, Dr. M. Bayar, who specialized in 24 25 26 27 28 7 Dr. Taylor-Holmes’s electronic signature includes a medical specialty code of 19, indicating internal medicine. (AR 416); see Program Operations Manual System (POMS) DI 26510.089, U.S. Soc. Sec. Admin. (Oct. 25, 2011), 0426510089; POMS DI 26510.090, U.S. Soc. Sec. Admin. (Aug. 29, 2012), 10 1 surgery,8 reviewed Plaintiff’s medical records and affirmed Dr. 2 Taylor-Holmes’s decision. 3 (AR 457-58.) On January 26, 2012, Plaintiff’s treating physician, Dr. 4 Felix A. Albano, noted that Plaintiff suffered from “Herniated 5 Disc Diseae [sic] of the Cspine and Lumbosacral spine, Gastro6 esophageal Reflux Disease and Helicobacter Pylori.”9 (AR 484.) 7 Dr. Albano stated, without further explanation, that Plaintiff 8 was “disabled and unable to work.” 9 (Id.) Finally, on June 30, 2012, Dr. Vincente R. Bernabe, a board- 10 certified orthopedic surgeon, examined Plaintiff at the Social 11 Security Administration’s request. (AR 486-91.) Dr. Bernabe 12 observed, among other things, that Plaintiff had “multiple 13 Waddell’s signs,” including severe back pain on “[a]xial loading 14 of the head” and on “[r]otation of the shoulder while keeping the 15 back straight.”10 (AR 488.) He noted that “[e]ven the slightest 16 17 18 19 20 21 22 23 24 25 26 27 28 8 Dr. Bayar’s electronic signature includes a medical specialty code of 45, indicating surgery. (AR 458); see Program Operations Manual System (POMS) DI 26510.089, U.S. Soc. Sec. Admin. (Oct. 25, 2011),; POMS DI 26510.090, U.S. Soc. Sec. Admin. (Aug. 29, 2012), https://secure. 9 Helicobacter pylori is a bacterium commonly found in the stomach. H. pylori (Helicobacter pylori), WebMD, http://www.webmd. com/digestive-disorders/h-pylori-helicobacter-pylori (last visited Nov. 8, 2014). “The bacteria’s shape and the way they move allow them to penetrate the stomach’s protective mucous lining, where they produce substances that weaken the lining and make the stomach more susceptible to damage from gastric acids.” Id. 10 Waddell’s signs are used to detect a nonorganic component of back pain. Asley Blom et al., A new sign of inappropriate lower back pain, 84 Annals of The Royal Coll. of Surgeons of England 34243 (2002), available at PMC2504150/. They include overreactions to the examination, widespread superficial tenderness not corresponding to any 11 1 palpation of the skin caused severe pain throughout the whole 2 spine.” (Id.) He further noted that Plaintiff “had significant 3 symptom exaggeration grabbing his back and hips during [the] 4 examination” and gave “obvious suboptimal effort” on range-of5 motion testing. (Id.) Dr. Bernabe diagnosed “[l]umbosacral 6 strain with multiple Waddell’s signs and symptom exaggeration and 7 magnification” and found that Plaintiff had no functional 8 limitations. 9 (AR 490.) After summarizing the medical evidence, including the 10 February 2008 right- and left-knee MRIs (AR 21-22), the ALJ 11 accorded “significant weight” to the opinions of Drs. Kim, Yu, 12 Taylor-Holmes, and Bayar. (AR 25.) She noted that these doctors 13 generally agreed on Plaintiff’s limitations but had assessed 14 “some differences in the degree of specific function-by-function 15 limitations,” and she “adopted those specific restrictions on a 16 function-by-function basis that are best supported by the 17 objective evidence as a whole.” (AR 26.) She “considered” but 18 gave “less weight” to Dr. Bernabe’s opinion, finding that “the 19 clinical evidence does actually support more restrictive 20 limitations” than he found.11 (AR 25.) The ALJ gave “no weight” 21 22 anatomical distribution, pain on axial loading of the skull or pain 23 on rotation of the shoulder and pelvis together, severely limited raising testing in a 24 straight-leg the legs on formal and lower limb patient who can sit forward with extended, weakness or sensory 25 loss not corresponding to a nerve-root distribution. 26 27 28 Id. “Three or more positive signs are strongly suggestive of a non-organic component to the lower back pain.” Id. 11 As noted in Section B below, the ALJ considered Dr. Bernabe’s findings of symptom exaggeration in assessing Plaintiff’s credibility. 12 1 to Dr. Albano’s opinion because it was conclusory and in conflict 2 with the other medical opinions, among other reasons.12 (AR 24- 3 25.) 4 5 3. Analysis Contrary to Plaintiff’s contentions, the ALJ’s assessment of 6 the medical evidence and her resulting RFC finding were legally 7 sufficient and supported by substantial evidence. 8 Plaintiff contends that the ALJ “failed to comment or 9 provide any discussion or analysis regarding what weight if any 10 she is attributing to [Plaintiff’s] bilateral meniscus tears” and 11 “misdiagnose[d]” them as “simply strains.” (J. Stip. at 5.) But 12 the ALJ in fact fully discussed Plaintiff’s knee MRIs, noting 13 that they showed tears of the right and left medial meniscuses. 14 (See AR 21-22.) Moreover, in formulating Plaintiff’s RFC, she 15 accorded significant weight to the opinion of Dr. Kim (AR 25), 16 who examined Plaintiff’s knees (AR 213-14, 240-41), discussed his 17 MRI reports (AR 217), and diagnosed “bilateral knee strains” and 18 “[o]blique tears through the posterior horns of the medial 19 menisci, per MRIs” (AR 216; accord AR 242). The ALJ also relied 20 on the opinion of Dr. Yu, who examined Plaintiff’s knees and made 21 findings consistent with those of Dr. Kim. (Compare AR 409-10 22 (Dr. Yu’s knee examination, finding anterior knee tenderness, 23 “mildly positive grind and inhibition tests,” normal range of 24 motion, no instability or effusion, and normal gait, motor 25 strength, and sensation), with (AR 213-14 (Dr. Kim’s knee 26 examinations, showing discomfort when attempting to squat and 27 12 Plaintiff does not challenge the ALJ’s rejection of Dr. 28 Albano’s opinion. 13 1 infrapatellar tenderness but normal gait, no swelling, and no 2 instability) and 217 (noting that Plaintiff’s knee discomfort was 3 “consistent with the MRI studies, revealing tears to the 4 posterior horns of the medial menisci”).) To the extent there 5 were differences among the opinions of the doctors she relied on, 6 the ALJ stated that she had adopted “those specific restrictions 7 on a function-by-function basis that are best supported by the 8 objective evidence as a whole.” (AR 26.) Indeed, as discussed 9 below, Plaintiff does not convincingly point to any medical 10 evidence showing that he suffered from more significant 11 limitations because of his meniscus tears, and his own treating 12 physician listed Plaintiff’s conditions as only herniated disc 13 disease of the cervical and lumbosacral spine, gastroesophageal 14 reflux disease, and helicobacter pylori, not any knee condition. 15 (See AR 484.) Thus, even if the ALJ somehow erred by finding 16 that Plaintiff suffered from “chronic bilateral knee strain,” not 17 meniscus tears, it was harmless. See Stout v. Comm’r Soc. Sec. 18 Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (nonprejudicial or 19 irrelevant mistakes harmless). 20 Plaintiff further contends that Dr. Kim found that Plaintiff 21 “would require a 10 minute break every hour and a half” and was 22 restricted from “prolonged standing and walking,” and that the 23 ALJ erred by failing to include those limitations in her RFC 24 assessment. (J. Stip. at 5-6.) Dr. Kim, however, never opined 25 that Plaintiff required a 10-minute break after every hour and a 26 half of work. Rather, he simply noted that Plaintiff’s employer 27 had provided modified work that was limited to lifting a maximum 28 of 20 pounds and provided a break every hour and a half, and that 14 1 such “modified work duties” fell within his previously 2 recommended work restrictions of avoiding very heavy work 3 activities, repetitive gripping and grasping, and prolonged 4 walking or standing. (AR 243.) In doing so, Dr. Kim 5 specifically affirmed his previously recommended work 6 restrictions (id.), which did not include any requirement that 7 Plaintiff be given breaks throughout the day (id.; see also AR 8 221). The ALJ, moreover, accurately summarized Dr. Kim’s 9 findings. (See AR 22-23.) As such, the ALJ did not err by 10 omitting from the RFC a limitation to 10-minute breaks every one 11 and a half hours. See Bayliss, 427 F.3d at 1217 (in assessing 12 RFC, ALJ need take into account only limitations for which there 13 was record support). 14 Moreover, Dr. Kim’s finding in the workers’-compensation 15 context that Plaintiff was precluded from “prolonged” standing 16 and walking does not appear to be inconsistent with Plaintiff’s 17 RFC for standing and walking six hours in an eight-hour day. 18 Indeed, California’s 1997 Schedule for Rating Permanent 19 Disabilities in workers’-compensation cases states that a 20 preclusion from “Prolonged Weight-Bearing” “contemplates ability 21 to do work approximately 75% of time in standing and walking 22 position, and requires sitting approximately 25% of time.” See 23 State of Cal. Dep’t of Indus. Relations, Div. of Workers’ Comp., 24 Schedule for Rating Permanent Disabilities 2–19 (Apr. 1997), 25 available at; see also 26 Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576 27 (9th Cir. 1988) (noting that different measurements and 28 terminology are used in workers’ compensation and social security 15 1 disability cases); Jones v. Astrue, No. EDCV08-1001-CT, 2008 WL 2 5351631, at *5 n.9 (C.D. Cal. Dec. 18, 2008) (finding limitation 3 to standing and walking six out of eight hours consistent with 4 doctors’ finding, in context of workers’-compensation case, that 5 plaintiff was precluded from “prolonged standing”).13 The ALJ’s 6 interpretation of Dr. Kim’s opinion, moreover, is fully 7 consistent with the credited opinions of examining physician Yu 8 and consulting physicians Taylor-Holmes and Bayar, all of whom 9 found that Plaintiff could stand and walk for six hours in an 10 eight-hour day. (See AR 411, 413, 458.) The ALJ therefore did 11 not err by failing to include in Plaintiff’s RFC and the 12 hypotheticals to the VE any further limitations on his ability to 13 stand and walk. See Molina v. Astrue, 674 F.3d 1104, 1111 (9th 14 Cir. 2012) (“Even when the evidence is susceptible to more than 15 one rational interpretation, we must uphold the ALJ’s findings if 16 they are supported by inferences reasonably drawn from the 17 record.”); Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 18 2008) (ALJ is “final arbiter with respect to resolving 19 ambiguities in the medical evidence”). 20 Plaintiff is not entitled to remand on this ground. 21 22 23 24 25 26 27 28 13 Although the term “prolonged weight bearing” was omitted from the January 2005 Schedule for Rating Permanent Disabilities, see State of Cal. Dep’t of Indus. Relations, Div. of Workers’ Comp., Schedule for Rating Permanent Disabilities (Jan. 2005), available at, the Court uses the 1997 version for guidance. 16 1 B. 2 3 The ALJ Did Not Err in Assessing Plaintiff’s Credibility Plaintiff contends that the ALJ failed to give any clear and 4 convincing reasons for “rejecting” his subjective complaints. 5 (J. Stip. at 9-13.) For the reasons discussed below, reversal is 6 not warranted on this ground. 7 8 1. Applicable law An ALJ’s assessment of symptom severity and claimant 9 credibility is entitled to “great weight.” See Weetman v. 10 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 11 F.2d 528, 531 (9th Cir. 1986). “[T]he ALJ is not required to 12 believe every allegation of disabling pain, or else disability 13 benefits would be available for the asking, a result plainly 14 contrary to 42 U.S.C. § 423(d)(5)(A).” 15 (internal quotation marks omitted). Molina, 674 F.3d at 1112 In evaluating a claimant’s 16 subjective symptom testimony, the ALJ engages in a two-step 17 analysis. See Lingenfelter, 504 F.3d at 1035-36. “First, the 18 ALJ must determine whether the claimant has presented objective 19 medical evidence of an underlying impairment [that] could 20 reasonably be expected to produce the pain or other symptoms 21 alleged.” Id. at 1036 (internal quotation marks omitted). If 22 such objective medical evidence exists, the ALJ may not reject a 23 claimant’s testimony “simply because there is no showing that the 24 impairment can reasonably produce the degree of symptom alleged.” 25 Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) (emphasis in 26 original). When the ALJ finds a claimant’s subjective complaints 27 not credible, the ALJ must make specific findings that support 28 the conclusion. See Berry v. Astrue, 622 F.3d 1228, 1234 (9th 17 1 Cir. 2010). 2 Absent a finding or affirmative evidence of malingering, the 3 ALJ must provide “clear and convincing” reasons for rejecting the 4 claimant’s testimony. Lester, 81 F.3d at 834.14 If the ALJ’s 5 credibility finding is supported by substantial evidence in the 6 record, the reviewing court “may not engage in second-guessing.” 7 Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 8 2. 9 Relevant facts In an undated disability report, Plaintiff alleged that he 10 had been unable to work since October 10, 2008, because of a 11 “[b]ack and leg[] injury,” “numbness in both hands,” and 12 “headaches.” (AR 165.) At the January 2012 hearing, Plaintiff 13 testified that he was unable to work because of back pain. 14 39.) (AR He could not move his arms without having pain in his back 15 and shoulders, his hands and legs were numb, and he had neck pain 16 “[o]ff and on.” (AR 39-40, 46-47.) Plaintiff could lift about 17 15 pounds but could not carry that weight for very long, and he 18 could not write a one-page letter holding a pencil because of 19 hand numbness. (AR 41-42.) He could stand only 15 minutes at a 20 time because his back would start to hurt (AR 44-45), and he 21 could sit for only 10 to 15 minutes at a time (AR 51). 22 spent about four hours a day resting in a recliner. Plaintiff (AR 51-52.) 23 14 In Ghanim v. Colvin, the Ninth Circuit noted that its 24 precedent was inconsistent on whether the “clear and convincing” 25 standard does not apply only when an ALJ makes an “actual finding 26 27 28 of malingering” or also when the record merely contains “evidence of malingering.” 763 F.3d 1154, 1163 n.9 (9th Cir. 2014). The Ninth Circuit declined to decide the issue, however. Id. Here, as discussed below, because the ALJ made a finding of malingering, she was relieved of the obligation to provide clear and convincing reasons under either iteration of the standard. 18 1 On a “good day,” Plaintiff would walk about a half block, which 2 would take about a half hour, or shop with his wife. (AR 48-50.) 3 On a bad day, Plaintiff would “relax” and spend almost all day in 4 a recliner or in bed. (AR 49, 53.) He testified that “[e]very 5 movement of [his] body cause[d] [him] pain.” (AR 54.) Plaintiff 6 also testified that since his alleged onset date, in October 7 2008, he had applied for jobs and received unemployment benefits. 8 (AR 55-56.) 9 10 3. Analysis The ALJ found that Plaintiff’s medically determinable 11 impairments could reasonably be expected to cause some of the 12 alleged symptoms, but that his “statements concerning the 13 intensity, persistence and limiting effects of these symptoms are 14 not credible to the extent they are inconsistent with” his RFC 15 for light work. (AR 20.) As discussed below, the ALJ gave 16 legally sufficient reasons for discounting Plaintiff’s 17 credibility. 18 As an initial matter, the ALJ was entitled to reject 19 Plaintiff’s testimony without providing clear and convincing 20 reasons because she specifically found that “the record includes 21 statements by a doctor suggesting [Plaintiff] was engaged in 22 possible malingering or misrepresentation,” undermining 23 Plaintiff’s credibility. (AR 20); see Benton ex. el. Benton v. 24 Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003) (ALJ can reject 25 claimant’s testimony only upon “(1) finding evidence of 26 malingering, or (2) expressing clear and convincing reasons for 27 doing so”); Flores v. Comm’r of Soc. Sec., 237 F. App’x 251, 25228 53 (9th Cir. 2007) (ALJ did not err in rejecting subjective pain 19 1 testimony when record contained affirmative evidence of 2 malingering “in abundance”). Indeed, as the ALJ found (AR 20), 3 Dr. Bernabe examined Plaintiff and found “multiple Waddell’s 4 signs,” including severe back pain on axial loading of the head 5 and on rotation of the shoulder while keeping the back straight 6 (AR 488). Plaintiff also displayed “significant symptom 7 exaggeration[,] grabbing his back and hips during [the] 8 examination,” and “[e]ven the slightest palpation of the skin 9 caused severe pain throughout the whole spine.” (Id.) Dr. 10 Bernabe further noted that Plaintiff gave “obvious suboptimal 11 effort” on range-of-motion testing of the lumbar spine. (Id.) 12 He diagnosed lumbosacral strain “with multiple Waddell’s signs 13 and symptom exaggeration and magnification.” (AR 490.) The ALJ 14 reasonably concluded that Dr. Bernabe’s findings “detract from 15 [Plaintiff’s] credibility.” 16 (AR 20.) Plaintiff contends that the ALJ should not have relied on 17 Dr. Bernabe’s findings of symptom magnification because he did 18 not review Plaintiff’s MRI, EMG, and nerve-conduction-study 19 reports. (J. Stip. at 12-13.) But Dr. Bernabe based his 20 conclusion on his own findings of Waddell’s signs, exaggeration, 21 and obvious lack of effort during his examination, not any lack 22 of corroborating evidence. Substantial evidence therefore 23 supports the ALJ’s finding of malingering, and she was entitled 24 to discount Plaintiff’s credibility on that basis. 25 In addition, and although the finding of malingering 26 obviated the need to do so, Lester, 81 F.3d at 834, the ALJ 27 provided clear and convincing reasons for discounting Plaintiff’s 28 allegations regarding his symptoms and limitations. 20 1 First, the ALJ found that Plaintiff had received only 2 conservative treatment for his allegedly disabling conditions. 3 (AR 20); see Tommasetti, 533 F.3d at 1040 (holding that 4 claimant’s response to conservative treatment undermined his 5 reports of disabling symptoms); Parra, 481 F.3d at 751 (noting 6 that “evidence of ‘conservative treatment’ is sufficient to 7 discount a claimant’s testimony regarding severity of an 8 impairment”). Indeed, Plaintiff testified that he took the 9 medications Norco and Naprosyn15 (AR 50) and that his doctors did 10 not recommend that he undergo surgery (AR 47). Dr. Kim, 11 moreover, opined that Plaintiff would require only “additional 12 orthopaedic consultation and treatment for flare-ups, with the 13 treatment most likely consisting of symptomatic medication such 14 as light analgesics, nonsteroidal anti-inflammatory medication, 15 and muscle relaxants, as well as up to 24 sessions of physical 16 therapy per year for any type of acute flare-up of symptoms.” 17 (AR 222.) He found that Plaintiff was “not in need of surgical 18 intervention in relation to his low back complaints.” (AR 217.) 19 Dr. Kim noted that Plaintiff may possibly require pain injections 20 in the future, and that he could not “rule out” future knee 21 arthroscopic surgery (AR 222), but nothing indicates that 22 Plaintiff’s doctors ever recommended such treatment or that he 23 15 Norco contains acetaminophen and hydrocodone. Hydrocodone 24 Combination Products, MedlinePlus, medlineplus/druginfo/meds/a601006.html (last updated Oct. 15, 25 26 27 28 2014). Hydrocodone is an opiate (narcotic) analgesic used to relieve pain. Id. Naprosyn, or Naproxyn, is a nonsteroidal anti-inflammatory drug used to relieve pain. Naprosyn, MedlinePlus, WebMD, naprosyn-oral/naproxen-oral/details (last accessed Nov. 8, 2014). 21 1 ever underwent it. Indeed, Plaintiff’s medical records show that 2 since his alleged disability onset date, he was prescribed only 3 Vicodin16 and Tylenol for his allegedly debilitating low-back 4 pain. (See AR 471, 473, 481.)17 The ALJ therefore permissibly 5 discounted Plaintiff’s credibility based on his conservative 6 treatment.18 See Stephenson v. Colvin, No. CV 13-8303-AGR, 2014 7 WL 4162380, at *9 (C.D. Cal. Aug. 20, 2014) (ALJ properly 8 discounted credibility based on plaintiff’s conservative 9 treatment, which included Vicodin but did not include surgery or 10 pain-relief injections for back impairment); Morris v. Colvin, 11 No. CV 13-6236-OP, 2014 WL 2547599, at *4 (C.D. Cal. June 3, 12 2014) (ALJ properly discounted credibility when plaintiff 13 received conservative treatment consisting of physical therapy, 14 use of TENS unit, chiropractic treatment, Vicodin, and Tylenol 15 with Vicodin); compare Lapeirre-Gutt v. Astrue, 382 F. App’x 662, 16 664 (9th Cir. 2010) (treatment with narcotic pain medication, 17 occipital nerve blocks, triggerpoint injections, and 18 cervical-fusion surgery not conservative). 19 The ALJ also permissibly discounted Plaintiff’s subjective 20 21 16 Vicodin contains hydrocodone and acetaminophen. Hydrocodone Products, MedlinePlus, medlineplus/druginfo/meds/a601006.html (last updated Oct. 15, 2014). 22 Combination 23 24 25 26 27 28 17 The notes from Plaintiff’s treatment at LaSalle Medical Clinic are largely illegible. (See, e.g., AR 451, 470, 474.) 18 The ALJ did not, as Plaintiff contends, suggest that “some form of surgery is required in order to qualify for benefits.” (J. Stip. at 10.) Rather, she merely observed that Plaintiff did not undergo surgery, which supported her finding that he received only conservative treatment. 22 1 complaints because they were inconsistent with the medical 2 evidence. (AR 20); see Carmickle v. Comm’r, Soc. Sec. Admin., 3 533 F.3d 1155, 1161 (9th Cir. 2008) (“Contradiction with the 4 medical record is a sufficient basis for rejecting the claimant’s 5 subjective testimony.”); Lingenfelter, 504 F.3d at 1040 (in 6 determining credibility, ALJ may consider “whether the alleged 7 symptoms are consistent with the medical evidence”); Burch v. 8 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (“Although lack of 9 medical evidence cannot form the sole basis for discounting pain 10 testimony, it is a factor that the ALJ can consider in his 11 credibility analysis.”). Plaintiff claimed to be so debilitated 12 by his conditions that he was unable to lift more than 15 pounds, 13 stand for more than 15 minutes, or sit for more than 15 minutes, 14 and he needed to spend a minimum of four hours a day lying in a 15 recliner because of back pain. (AR 41-42, 44-45, 51-52.) But as 16 discussed above, Dr. Kim examined Plaintiff and reviewed his 17 medical records, back MRIs, knee MRIs, and electrodiagnostic 18 studies and opined that Plaintiff need only avoid “very heavy 19 work activities,” “repetitive forceful gripping, grasping, or 20 torquing,” and “prolonged standing and walking.” (AR 217, 221.) 21 Similarly, examining physician Yu and consulting physicians 22 Taylor-Holmes and Bayar all found that Plaintiff could sit, 23 stand, or walk for six hours in an eight-hour day; lift 20 pounds 24 occasionally and 10 pounds frequently; and frequently use his 25 upper extremities for pushing, pulling, and fine motor movements. 26 (See AR 411-18, 458.) And although Plaintiff’s treating 27 physician, Dr. Albano, believed that Plaintiff was “disabled and 28 unable to work,” he provided no assessment of Plaintiff’s 23 1 specific limitations. (AR 484.) The ALJ therefore permissibly 2 discounted Plaintiff’s credibility in part because his testimony 3 was unsupported by the medical evidence. 4 Finally, the ALJ discounted Plaintiff’s credibility because 5 he worked with modified duties from the time of his July 2007 6 injury until October 2008. (AR 20.) Indeed, Plaintiff alleged 7 that he stopped working on October 10, 2008, “[b]ecause of his 8 condition(s)” (AR 165), but he reported to Dr. Kim that he 9 stopped working because “modified work activities were no longer 10 available” (AR 243). Cf. Bruton v. Massanari, 268 F.3d 824, 828 11 (9th Cir. 2001) (as amended) (ALJ properly discounted credibility 12 when plaintiff left job because he was laid off, not because he 13 was injured). Indeed, even after Plaintiff stopped working, he 14 held himself out as available for work by receiving unemployment 15 benefits and applying for jobs. (AR 19 (ALJ’s notation that 16 Plaintiff received unemployment benefits and applied for jobs), 17 55-56 (Plaintiff’s testimony)); see Carmickle, 533 F.3d at 18 1161–62 (noting that applying for unemployment benefits can be 19 inconsistent with disability because one has to hold oneself out 20 as available to work). Plaintiff contends that the ALJ 21 improperly relied on this factor because the fact that he could 22 perform modified work did not mean that competitive occupations 23 existed that would accommodate those same limitations. 24 at 10-11.) (J. Stip. But even if the ALJ erred in relying on this factor, 25 it was harmless because she affirmatively found malingering and 26 provided other clear and convincing reasons for discounting 27 Plaintiff’s credibility. See Carmickle, 533 F.3d at 1162-63 28 (ALJ’s reliance on erroneous reasons for adverse credibility 24 1 determination harmless when substantial evidence supported 2 determination and errors did not negate its validity).19 3 This Court may not second-guess the ALJ’s credibility 4 finding simply because the evidence may have been susceptible of 5 other interpretations more favorable to Plaintiff. 6 Tommasetti, 533 F.3d at 1039. See The ALJ reasonably and properly 7 discredited Plaintiff’s testimony regarding the severity of his 8 symptoms and gave clear and convincing reasons for her adverse 9 credibility finding. 10 C. 11 12 Reversal is therefore not warranted. The ALJ and VE Properly Classified Plaintiff’s Past Relevant Work Plaintiff contends that the VE misclassified one of his past 13 jobs as “extension edger” and that the ALJ’s reliance on that 14 testimony to find that Plaintiff could perform his past work as 15 generally performed was therefore in error. 16 17 1. (J. Stip. at 17-18.) Applicable law At step four of the five-step disability analysis, a 18 claimant has the burden of proving that he cannot return to his 19 past relevant work, as either actually or generally performed in 20 the national economy. Pinto v. Massanari, 249 F.3d 840, 844-45 21 (9th Cir. 2001); § 404.1520(e). Although the burden of proof 22 lies with the claimant at step four, the ALJ still has a duty to 23 make factual findings to support her conclusion. Pinto, 249 F.3d 24 25 26 27 28 19 The Commissioner contends that the ALJ properly discounted Plaintiff’s credibility based on his reported daily activities. (J. Stip. at 15-16.) In fact, the ALJ found that Plaintiff’s reported daily activities supported the credibility of his claimed limitations, but that this factor was outweighed by the others that detracted from his credibility. (AR 20.) 25 1 at 844. The ALJ can meet this burden by comparing the physical 2 and mental demands of the past relevant work with the claimant’s 3 actual RFC. 4 Id. at 844-45. To ascertain the requirements of occupations as generally 5 performed in the national economy, the ALJ may rely on 6 information from the Dictionary of Occupational Titles (“DOT”) or 7 VE testimony. Id. at 845-46; SSR 00-4P, 2000 WL 1898704, at *2 8 (Dec. 4, 2000) (at steps four and five, SSA relies “primarily” on 9 DOT “for information about the requirements of work in the 10 national economy” and “may also use VEs . . . at these steps to 11 resolve complex vocational issues”); SSR 82–61, 1982 WL 31387, at 12 *2 (Jan. 1, 1982) (“The [DOT] descriptions can be relied upon — 13 for jobs that are listed in the DOT — to define the job as it is 14 usually performed in the national economy.” (emphasis in 15 original)). 16 17 2. Relevant facts In a work-history report, Plaintiff described three previous 18 jobs as a “machine operator” and one as a “general helper.” 19 175-80.) (AR Plaintiff wrote that in his most recent machine- 20 operator job, he operated a glue machine; he set it up to “work 21 in gluing cardboard boxes together,” loaded the machine, 22 supervised two assistants, and cleaned the machine and area at 23 the end of the day. (AR 176.) In each workday, Plaintiff walked 24 for four hours, stood for eight hours, stooped for two hours, 25 kneeled for one hour, crawled for one hour, handled objects and 26 reached for eight hours, and handled small objects for four 27 28 26 1 hours.20 (Id.) 2 25 pounds. 3 He lifted up to 50 pounds and frequently lifted (Id.) In an undated and unsigned “Medical/Vocational Decision 4 Guide,” an unidentified state-agency employee found that 5 Plaintiff was limited to light work with frequent “gross handling 6 & fingering.” (AR 72.) He or she classified Plaintiff’s past 7 relevant work as “machine operator,” listing a DOT code of 8 641.685-054, and “general helper,” listing a DOT code of 641.6869 014. (Id.) Both jobs listed an “M,” presumably indicating 10 medium work.21 (Id.) The employee checked that Plaintiff was 11 unable to perform his past relevant work but could perform other 12 work, listing three unskilled light-exertion jobs.22 (AR 72-74.) 13 Under the heading “Medical/Vocational Decision,” the employee 14 checked “not disabled.” (AR 73.) Plaintiff’s application was 15 denied on that basis at the initial and reconsideration levels. 16 (AR 77-80, 82-86.) 17 At the hearing, the VE categorized Plaintiff’s past jobs as 18 a machine feeder, DOT 699.686-010, extension edger, 641.685-046, 19 and cylinder-die-machine operator, DOT 649.682-014. (AR 60.) 20 She testified that the DOT classified the extension-edger job at 21 the light-exertion level but that Plaintiff had performed it at 22 20 It is not clear how Plaintiff managed to do all of these 23 things for the indicated times in one work day. 24 21 “Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 25 pounds.” § 404.1567(c). 26 22 Specifically, the employee found that Plaintiff could perform 27 the jobs of collator operator, DOT 208.685-101; cleaner, housekeeping, DOT 323.687-014; and photocopy-machine operator, 28 207.685-014. (AR 74.) 27 1 the medium-exertion level. (Id.) The VE further testified, in 2 response to the ALJ’s hypothetical, that a person with 3 Plaintiff’s RFC could perform the extension-edger job “as 4 described by the DOT, not as [Plaintiff] performed [it].” 5 60-61.) (AR She also found that such a person could perform other 6 light-exertion jobs, such as bench assembler, DOT 706.684-042, 7 inspector and hand packager, DOT 559.687-074, and cleaner8 housekeeper, DOT 323.687-014.23 (AR 62.) Plaintiff’s counsel 9 questioned the VE regarding some of her findings and posed 10 alternative hypotheticals, but he did not challenge her 11 characterization of Plaintiff’s previous job as an extension 12 edger or point to the state-agency employee’s findings in the 13 Medical/Vocational Decision Guide. 14 (See AR 63-69.) Based on the VE’s testimony, the ALJ concluded at step four 15 that Plaintiff could perform his past work of extension edger as 16 generally performed in the regional and national economies. 17 26.) She therefore concluded that he was not disabled. (AR (AR 26- 18 27.) 19 20 3. Analysis Plaintiff contends that the VE’s categorization of his past 21 work as an extension-edger was erroneous because it “incorrectly 22 describes Plaintiff’s past relevant work as a machine operator 23 where he in fact operated a machine that actually made the boxes 24 themselves, and which required him to lift entire bundles of 25 26 27 28 23 The VE testified that 2500 bench-assembler positions existed regionally and 35,000 nationally, 900 inspector-and-hand-packager positions existed regionally and 18,000 nationally, and 5500 cleaner-housekeeper jobs existed regionally and more than 70,000 nationally. (AR 62.) 28 1 finished boxes weighing as much as 50 pounds.” 2 18 (citing AR 176).) (J. Stip. at 17- Plaintiff contends that “[a]t no time did 3 [he] perform an occupation where he simply glued a small piece of 4 cardboard onto a pre-made box,” as allegedly required by the 5 extension-edger job. (Id. at 18.) Plaintiff also asserts, 6 without any elaboration, that the state-agency vocational 7 decision properly identified Plaintiff’s past relevant work as a 8 machine operator with a DOT code of 641.685-054. 9 (Id.) The DOT defines the extension-edger job as light work that 10 involves “[e]xerting up to 20 pounds of force occasionally” and 11 “up to 10 pounds of force frequently.” 12 685589. DOT 641.685-046, 1991 WL In that job, an individual 13 [t]ends machine that glues oversized piece of cardboard 14 (extension piece) to box top or bottom to form decorative 15 protecting edge or flange around box: Loads cardboard 16 pieces into machine feed hopper, fills glue reservoir, 17 and starts machine. 18 presses pedal to activate machine that glues piece onto 19 box. 20 wrapping. Positions formed box on block and Removes box from machine and stacks on pallet for 21 Id. 22 The VE’s classification of Plaintiff’s past relevant work as 23 an extension edger is consistent with Plaintiff’s description of 24 his former job. Plaintiff stated that his most recent machine- 25 operator job involved operating a glue machine to “glu[e] 26 cardboard boxes together,” setting up and loading the machine, 27 supervising assistants, and cleaning the machine at the end of 28 the day. (AR 176.) The extension-edger job similarly involved 29 1 filling a glue machine with glue, loading cardboard into the 2 machine, activating the machine to apply glue, and removing the 3 box from the machine; the machine glues the pieces, not the 4 person, just as Plaintiff testified his prior work involved. 5 641.685-046, 1991 WL 685589. DOT And although Plaintiff stated that 6 in that job he lifted up to 50 pounds and frequently lifted 25 7 pounds (AR 176), the VE accommodated that statement by testifying 8 that Plaintiff had performed that job at the medium level but 9 that given his RFC limitations, he could perform it only as 10 generally performed, at the light level (AR 60-61). 11 Plaintiff’s description of his most recent job, moreover, 12 was not consistent with the machine-operator job noted in the 13 state-agency Medical/Vocational Decision Guide. (See AR 72-74.) 14 The DOT describes that job, which is titled “four-corner-stayer15 machine operator,” as medium work involving “[e]xerting 20 to 50 16 pounds of force occasionally” and “10 to 25 pounds of force 17 frequently.” DOT 641.685-054, 1991 WL 685591. An individual in 18 that job 19 [t]ends machine that folds and tapes corners of cardboard 20 box blanks to form containers: Bolts box form to machine 21 ram, 22 correspond to size of box form. 23 machine 24 moisture rolls. 25 blanks into automatic feedrack. Examines boxes to detect 26 defects as they are ejected from machine and stacks boxes 27 on pallets or in bins. 28 glues wrappers onto boxes [WRAPPING-MACHINE OPERATOR using wrench, feedrack and and adjusts threads walls of well to Places reels of tape on tape through feed and Starts machine and loads scored box May tend wrapping machine that 30 1 (paper goods)]. 2 Id. Plaintiff never stated that his most recent machine-operator 3 job involved operating a machine that folds and tapes boxes, 4 bolting forms to the machine using a wrench, loading the machine 5 with tape, or loading box blanks. (See AR 176.) The ALJ 6 therefore reasonably relied on the testimony of the VE – rather 7 than the opinion of an unidentified state-agency employee of 8 unknown credentials – to find that Plaintiff’s past relevant work 9 was that of an extension edger, particularly given that Plaintiff 10 never objected to the VE’s characterization of his past work. 11 See Bayliss, 427 F.3d at 1218 (finding that “VE’s recognized 12 expertise provides the necessary foundation for his or her 13 testimony,” and “no additional foundation is required”). 14 Plaintiff nevertheless contends that the VE’s testimony was 15 in error because he did not “simply glue[] a small piece of 16 cardboard on to a pre-made box as is described in the extension 17 edger job.” (J. Stip. at 18.) But the DOT description actually 18 states that the job involves “[t]end[ing] [a] machine” that glues 19 “oversized,” not small, pieces of cardboard to boxes. 20 641.685-046, 1991 WL 685589. DOT Moreover, that description does not 21 appear to be materially inconsistent with Plaintiff’s report that 22 he operated a glue machine to “glu[e] cardboard boxes together.” 23 (AR 176.)24 24 25 26 27 28 24 In any event, even if the ALJ had erred in finding that Plaintiff could perform his past relevant work as an edger as generally performed, it was likely harmless given the VE’s testimony that he could also perform three other jobs that existed in significant numbers in the regional and national economies. (See AR 62); Stout 454 F.3d at 1055. 31 1 In sum, the ALJ’s reliance on the VE’s testimony was 2 reasonable, especially in light of Plaintiff’s failure at the 3 hearing to object to the VE’s categorization of his past work, 4 question the VE about her opinion regarding Plaintiff’s past 5 relevant work, or even point out the contradictory state-agency 6 decision guide. (See AR 63-69); see also Solorzano v. Astrue, 7 No. EDCV 11-369-PJW, 2012 WL 84527, at *6 (C.D. Cal. Jan. 10, 8 2012) (at administrative hearing, counsel has “obligation to take 9 an active role and to raise issues that may impact the ALJ’s 10 decision while the hearing is proceeding so that they can be 11 addressed”). Plaintiff is not entitled to remand on this 12 ground.25 13 14 15 16 17 18 19 20 21 22 23 24 25 26 25 To the extent Plaintiff asserts that the ALJ erred by failing 27 to include in her hypothetical to the VE further limitations supposedly found in Dr. Kim’s opinion (J. Stip. at 17), that 28 argument fails for the reasons discussed in Section IV.A.3 above. 32 1 VI. CONCLUSION 2 Consistent with the foregoing, and pursuant to sentence four 3 of 42 U.S.C. § 405(g),26 IT IS ORDERED that judgment be entered 4 AFFIRMING the decision of the Commissioner and dismissing this 5 action with prejudice. IT IS FURTHER ORDERED that the Clerk 6 serve copies of this Order and the Judgment on counsel for both 7 parties. 8 9 10 DATED: November 13, 2014 11 ____________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 26 This sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 33

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