Fred Tillmon v. Carolyn W. Colvin

Filing 19

MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. (mz)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 FRED TILLMON, 12 Case No. EDCV 16-1760 SS Plaintiff, 13 v. 14 MEMORANDUM DECISION AND ORDER NANCY A. BERRYHILL,1 Acting Commissioner of the Social Security Administration, 15 16 Defendant. 17 18 19 20 I. 21 INTRODUCTION 22 23 24 25 Fred Tillmon (“Plaintiff”) brings this action seeking to overturn the decision of the Commissioner of the Social Security Administration (the “Commissioner” or “Agency”) denying his 26 27 28 Nancy A. Berryhill is now the Acting Commissioner of Social Security and is substituted for former Acting Commissioner Carolyn W. Colvin in this case. See Fed. R. Civ. P. 25(d). 1 1 application for Supplemental Security Income benefits (“SSI”). 2 August 17, 2016, Plaintiff filed a Complaint commencing the instant 3 action. 4 the Administrative Record (“AR”). 5 filed a memorandum in support of the Complaint (“P. Mem.”). 6 March 20, 2017, Defendant filed a memorandum in support of the 7 Answer (“D. Mem.”). 8 § 636(c), to the jurisdiction of the undersigned United States 9 Magistrate Judge. 10 On On January 4, 2017, Defendant filed an Answer along with On February 13, 2017, Plaintiff On The parties consented, pursuant to 28 U.S.C. For the reasons stated below, the Court AFFIRMS the Commissioner’s decision. 11 12 II. 13 PROCEDURAL HISTORY 14 In 2010, Plaintiff filed a prior application for SSI. 15 (AR 16 12, 100). The Agency denied Plaintiff’s application initially on 17 July 21, 2010, and on reconsideration on October 26, 2010. 18 100). 19 Judge (“ALJ”), and, on July 26, 2011, ALJ Teresa Hoskins Hart held 20 a 21 Plaintiff proceeded without counsel before ALJ Hart. 22 100). 23 hearing, as did Michael Bliss, Plaintiff’s friend. 24 On March 26, 2012, ALJ Hart found that Plaintiff was not disabled 25 under the Social Security Act (the “Act”). 26 sought review of ALJ Hart’s decision before the Appeals Council, 27 which denied Plaintiff’s request. (AR Plaintiff requested a hearing before an Administrative Law hearing to review Plaintiff’s application. (AR 24-63). (AR 24-35, Vocational expert (“VE”) Troy Scott also testified at the 28 2 (AR 24, 42). (AR 100-07). (AR 111). Plaintiff The decision became 1 the final decision of the Commissioner, (AR 111), and Plaintiff 2 did not challenge the decision further. (See AR 93-94). 3 Plaintiff filed the instant application for SSI on July 29, 4 5 2013. (AR 12, 126). 6 December 7 Plaintiff’s application initially on October 31, 2013, and on 8 reconsideration 9 Plaintiff requested a hearing before an ALJ. 2015, 31, ALJ Plaintiff alleged a disability onset date of 2009. on (AR 12, January Michael 114, 16, Radensky 127). 2014. conducted The (AR Agency 141-45, (AR 155). On January 5, 11 Plaintiff’s application. 12 by Brandon Sanchez, testified before ALJ Radensky. (AR 12, 64). 13 VE Corinne J. Porter also testified at the hearing. (AR 12, 64). 14 On February 24, 2015, ALJ Radensky found that Plaintiff was not 15 disabled under the Act. 16 ALJ Radensky’s decision before the Appeals Council, which denied 17 review on July 25, 2016. (AR 1-3, 6). The ALJ’s decision therefore 18 became the final decision of the Commissioner. 19 commenced the instant action on August 17, 2016. (AR 12-19). hearing 149-53). 10 (AR 12, 64-96). a denied to review Plaintiff, represented Plaintiff sought review of (AR 1). Plaintiff (Dkt. No. 1). 20 21 III. 22 FACTUAL BACKGROUND 23 24 A. Background and ALJ Hearing Testimony 25 26 Plaintiff was born on August 7, 1960. (AR 244). He was 54 27 years old when he appeared before ALJ Radensky. (AR 70). Plaintiff 28 did not complete high school and does not have a GED, but he is 3 1 able to read and write “basic stuff.” (AR 70-71). 2 last worked “six [or] seven years” earlier, helping a neighbor 3 maintain yards as a “cleaner.” 4 applied for any work more recently. (AR 67, 91). Plaintiff had Plaintiff had not (AR 68-69). 5 6 There is some evidence in record 7 commitment in 2012. 8 substance abuse and mental health issues. 9 addition, it (AR 360). the appears that of a psychiatric The records indicate possible Plaintiff (AR 360-361). reported two episodes In of 10 custody, one in 2004 and one in 2008, and that he received mental 11 health treatment in custody. 12 records, Plaintiff denied drug or alcohol use, but Plaintiff’s 13 treating physician mentioned in her notes that “[Plaintiff] smelled 14 of ETOH [alcohol].” (AR 360, 408). In later medical (AR 386). 15 16 Plaintiff claimed that he had been diagnosed with paranoia, 17 schizophrenia, bipolar disorder, and “mental depression.” (AR 72). 18 He claimed that he could not “see [him]self” around “too many” 19 people because when his “mind goes bad” he believes that people 20 are “out to get” him. 21 medication for his impairments, although it made him nauseated and 22 caused “shakes” over his whole body for ninety minutes at a time 23 twice a week. 24 medications made him tired and made it difficult to get out of bed. 25 (AR 76). 26 thoughts and hallucinations. 27 that he was “fine” when he took his medication, provided he was 28 “by [him]self.” (AR 72). (AR 74-75). Plaintiff claimed that he took Plaintiff also claimed that his Plaintiff maintained that he also experienced suicidal (AR 77, 79). (AR 81). 4 Plaintiff testified At the time of the 2015 hearing, Plaintiff lived with his 1 2 sister, niece, and great nephew. 3 he cooks TV dinners and does laundry “every now and then.” (AR 4 83). and 5 socializes only with his friend “Mike.” 6 the bus to appointments. Plaintiff claimed that (AR 82). he does Plaintiff claimed that not shop (AR 84). or drive Plaintiff takes (AR 84-85). 7 8 Plaintiff’s attorney asked VE Porter whether an individual 9 with Plaintiff’s “difficulties with maintaining social functions, 10 pace and persistence and his inability to act appropriately with 11 the public” could perform Plaintiff’s past relevant work. 12 VE Porter testified that Plaintiff could return to his past work 13 as 14 factor.” 15 would be required to “interact[] with the public in the sense of 16 whoever’s house he’s cleaning.” (AR 94). 17 she “got the impression [Plaintiff] was doing lawn work.” 18 Plaintiff stated, however, that he never performed any work inside 19 the house while he worked as a cleaner. a cleaner, noting (AR 94). that public interaction (AR 94). “wouldn’t be a Plaintiff’s attorney asked whether Plaintiff VE Porter testified that (AR 94). (AR 95). 20 21 During the prior 2011 hearing before ALJ Hart, VE Scott 22 testified that an individual with Plaintiff’s vocational profile 23 who was limited to the performance of “simple, repetitive tasks” 24 with “limited social contact” would be able to perform Plaintiff’s 25 past work as a cleaner. 26 same individual could also return to Plaintiff’s past relevant work 27 if the individual also could not come into contact with the general 28 public. (AR 58-60). (AR 60). 5 VE Scott confirmed that the 1 B. Treating Psychiatrist Denise Persichino, D.O. 2 3 In July 2013, Plaintiff visited Dr. Denise Persichino, D.O., 4 complaining of a “real short” temper and depression and that his 5 medication made him “very tired.” 6 observed that Plaintiff was “very talkative [and] energetic [and] 7 hyperverbal” and continued his prescriptions. (AR 384). Dr. Persichino (AR 384). 8 9 In August 2013, Plaintiff visited Dr. Persichino, complaining 10 of depression with “5-6 good days” per month, anger, panic attacks, 11 and visual and auditory hallucinations. 12 recommended 13 prescriptions. supportive psychotherapy (AR 382). and Dr. Persichino continued Plaintiff’s (AR 382). 14 15 On September 24, 2013, Dr. Persichino completed a Mental 16 Disorder Questionnaire Form regarding Plaintiff’s impairments. (AR 17 408-12). 18 swings, depression, homicidal thoughts, suicidal thoughts, visual 19 and auditory hallucinations, and anxiety. 20 Persichino also stated that Plaintiff would sometimes “lose time” 21 and spend up to half an hour in an “almost catatonic” state. (AR 22 410). 23 “racing thoughts” would affect his ability to concentrate and 24 complete tasks in a “time efficient manner” and that he had 25 “significant difficulty” with authority figures. Dr. Persichino observed that Plaintiff suffered from mood (AR 408, 410). Dr. Dr. Persichino stated that Plaintiff’s mood swings and (AR 411). 26 27 28 In December 2013, Plaintiff visited Dr. Persichino, reporting anxiety, visual and auditory hallucinations, and depression. 6 (AR 1 433). Dr. Persichino modified Plaintiff’s medication regimen and 2 prescribed supportive therapy. (AR 433). 3 4 In January 2014, Plaintiff visited Dr. Persichino, reporting 5 “improved” depression and that his hallucinations had been “good”; 6 Dr. Persichino noted that Plaintiff was “more talkative [and] 7 upbeat [and] happy” and continued his medication regimen. 8 431). (AR 9 10 C. State Agency Medical Consultants 11 12 On October 29, 2013, State Agency reviewing physician Dr. P. 13 Ryan, M.D., reviewed Plaintiff’s medical records and provided a 14 medical assessment. 15 been “no material change” since ALJ Hart had found Plaintiff not 16 disabled one year earlier. 17 Plaintiff’s 18 impairments were not supported by his treatment history, further 19 noting that Plaintiff’s condition “appear[ed] to get better during 20 periods of compliance w/ treatment.” (AR 117-22). allegations Dr. Ryan stated that there had (AR 118). regarding Dr. Ryan also stated that the severity of his mental (AR 120). 21 22 On January 15, 2014, State Agency reviewing physician Dr. 23 Joshua D. Schwartz, Ph.D., reviewed Plaintiff’s medical records 24 and provided a medical assessment. 25 opined that Plaintiff could carry out “simple one and two step 26 tasks with adequate concentration, persistence and pace,” but also 27 stated that Plaintiff should have “no contact w/ the general 28 public.” (AR 137). 7 (AR 132-37). Dr. Schwartz 1 D. Work History Report 2 3 In a September 2013 Work History Report, Plaintiff reported 4 that he worked as a “laborer” in 2002 and in providing “assistance 5 to [a] landscaper” in 2009. 6 “laborer” included cleaning garden tools and removing them from a 7 truck. 8 [a] landscaper” involved “clean[ing] and stack[ing] tools” and 9 using rakes, trimmers, and hedgers. (AR 273). (AR 272). Plaintiff’s duties as a Plaintiff’s duties in providing “assistance to (AR 274). 10 11 IV. 12 THE FIVE STEP SEQUENTIAL EVALUATION PROCESS 13 To 14 qualify for disability benefits, a claimant must 15 demonstrate a medically determinable physical or mental impairment 16 that prevents him from engaging in substantial gainful activity2 17 and that is expected to result in death or to last for a continuous 18 period of at least twelve months. 19 721 20 impairment must render the claimant incapable of performing the 21 work he previously performed and incapable of performing any other 22 substantial gainful employment that exists in the national economy. 23 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 24 U.S.C. § 423(d)(2)(A)). (9th Cir. 1998) (citing 42 Reddick v. Chater, 157 F.3d 715, U.S.C. § 423(d)(1)(A)). The 25 26 27 28 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay or profit. 20 C.F.R. §§ 404.1520, 416.910. 2 8 1 To decide if a claimant is entitled to benefits, an ALJ 2 conducts a five-step inquiry. 3 20 C.F.R. §§ 404.1520, 416.920. steps are: 4 5 (1) Is the claimant presently engaged in substantial 6 gainful activity? 7 not disabled. If so, the claimant is found If not, proceed to step two. 8 9 (2) Is the claimant’s impairment severe? 10 claimant is found not disabled. 11 If not, the step three. If so, proceed to 12 13 (3) Does the claimant’s impairment meet or equal one 14 on the list of specific impairments described in 15 20 C.F.R. Part 404, Subpart P, Appendix 1? 16 the claimant is found disabled. 17 to step four. If so, If not, proceed 18 19 (4) Is the claimant capable of performing his past 20 work? If so, the claimant is found not disabled. 21 If not, proceed to step five. 22 23 (5) Is the claimant able to do any other work? 24 the claimant is found 25 claimant is found not disabled. 26 27 28 9 disabled. If If not, so, the The 1 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 2 262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett); 20 C.F.R. 3 §§ 404.1520(b)-404.1520(f)(1) & 416.920(b)-416.920(f)(1). 4 The claimant has the burden of proof at steps one through four 5 6 and the 7 Bustamante, 262 F.3d at 953-54. 8 meets his burden of establishing an inability to perform past work, 9 the Commissioner must show that the claimant can perform some other 10 work that exists in “significant numbers” in the national economy, 11 taking into account the claimant’s residual functional capacity 12 (“RFC”), age, education, and work experience. 13 at 14 404.1520(f)(1), 416.920(f)(1). 15 testimony of a vocational expert or by reference to the Medical- 16 Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, 17 Appendix 2 (commonly known as “the Grids”). 18 240 F.3d 1157, 1162 (9th Cir. 2001) (citing Tackett). When a 19 claimant has both exertional (strength-related) and nonexertional 20 limitations, the Grids are inapplicable and the ALJ must take the 21 testimony of a vocational expert. 22 869 (9th Cir. 2000). 1098, Commissioner 1100; has the Reddick, burden of proof at step five. If, at step four, the claimant 157 F.3d at Tackett, 180 F.3d 721; 20 C.F.R. §§ The Commissioner may do so by the Osenbrock v. Apfel, Moore v. Apfel, 216 F.3d 864, 23 24 V. 25 THE ALJ’S DECISION 26 27 28 Preliminarily, ALJ Radensky observed that ALJ Hart previously found Plaintiff not disabled. (AR 12). 10 As a result, ALJ Radensky 1 ruled that there 2 nondisability” with respect to the unadjudicated period. (AR 12). 3 ALJ “changed 4 circumstances” and therefore adopted the findings of ALJ Hart’s 5 decision. Radensky was found a “rebuttable that presumption Plaintiff had not of continuing shown (AR 12). 6 7 ALJ Radensky then applied the five-step process in Plaintiff’s 8 case. At step one, ALJ Radensky observed that Plaintiff had not 9 engaged in substantial gainful activity since July 29, 2013, the 10 application date. (AR 14). 11 Plaintiff’s severe impairments included psychotic disorder, not 12 otherwise 13 physiological dependence. 14 found that Plaintiff did not have an impairment or combination of 15 impairments that meets or medically equals the severity of one of 16 the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 17 (20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526). specified, and At step two, ALJ Radensky found that history of (AR 14). polysubstance abuse with At step three, ALJ Radensky (AR 15). 18 19 ALJ Radensky then found that Plaintiff possessed the RFC to 20 perform a full range of work at all exertional levels, with the 21 nonexertional limitations that Plaintiff could perform “simple, 22 repetitive 23 precluded from contact with the public. 24 Plaintiff’s 25 Persichino’s opinion and “great weight” to the opinions of State 26 agency medical consultants. tasks RFC, with ALJ limited Radensky social assigned (AR 18). 27 28 11 interactions” (AR 16). “some and was In evaluating weight” to Dr. 1 At step four, ALJ Radensky determined that Plaintiff was 2 capable of performing his past relevant work as a cleaner as 3 actually and generally performed. 4 therefore determined that Plaintiff was not disabled within the 5 meaning of the Act. (AR 18-19). ALJ Radensky (AR 19). 6 7 VI. 8 STANDARD OF REVIEW 9 10 Under 42 U.S.C. § 405(g), a district court may review the 11 Commissioner’s decision to deny benefits. The court may set aside 12 the Commissioner’s decision when the ALJ’s findings are based on 13 legal error or are not supported by “substantial evidence” in the 14 record as a whole. 15 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); Smolen v. 16 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Fair v. Bowen, 17 885 F.2d 597, 601 (9th Cir. 1989)). Aukland v. Massanari, 257 F.3d 1033, 1035 18 19 “Substantial evidence is more than a scintilla, but less than 20 a preponderance.” 21 Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). 22 evidence which a reasonable person might accept as adequate to 23 support a conclusion.” Id. (citing Jamerson, 112 F.3d at 1066; 24 Smolen, 25 evidence supports a finding, the court must “‘consider the record 26 as a whole, weighing both evidence that supports and evidence that 27 detracts from the [Commissioner’s] conclusion.’” Aukland, 257 F.3d 28 at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 80 F.3d Reddick, 157 F.3d at 720 (citing Jamerson v. at 1279). To 12 determine It is “relevant whether substantial 1 1993)). If the evidence can reasonably support either affirming 2 or reversing that conclusion, the court may not substitute its 3 judgment for that of the Commissioner. 4 21 (citing Flaten v. Sec’y, 44 F.3d 1453, 1457 (9th Cir. 1995)). Reddick, 157 F.3d at 720- 5 6 VII. 7 DISCUSSION 8 9 Plaintiff challenges ALJ Radensky’s decision on two grounds. 10 First, Plaintiff contends that ALJ Radensky failed to properly 11 consider Dr. Persichino’s opinion. 12 Plaintiff contends that ALJ Radensky erred at step four by finding 13 that he could perform his past relevant work as a cleaner. 14 Mem. at 6-9). (P. Mem. at 3-6). Second, (P. 15 The Court disagrees. 16 ALJ Radensky afforded proper weight to 17 Dr. Persichino’s opinion and did not err by determining that 18 Plaintiff could return to his past relevant work.3 Accordingly, 19 20 21 22 23 24 25 26 27 28 Defendant also argues that the Court should affirm the ALJ’s decision because Plaintiff has failed to rebut the presumption of continuing nondisability or to challenge the ALJ’s finding on this issue. (D. Mem. at 2-4 (stating that presumption of continuing nondisability should be applied and presenting other arguments “in the alternative”)). Plaintiff argues that his claims should be considered “regardless of whether [Plaintiff] did not rebut the presumption of continuing nondisability.” (P. Mem. at 2). The Court deems it appropriate to evaluate Plaintiff’s proposed grounds for reversal, particularly as the Ninth Circuit has disapproved of applying the presumption of continuing nondisability where, as here, it appears that the claimant was unrepresented by counsel at the time of his prior claim. See Lester v. Chater, 81 F.3d 821, 827-28 (9th Cir. 1995). 3 13 1 for the reasons discussed below, 2 the Court finds that ALJ Radensky’s decision must be AFFIRMED. 3 4 5 A. ALJ Radensky Provided Specific And Legitimate Reasons To Assign Dr. Persichino’s Opinion “Some Weight” 6 7 Plaintiff contends that the ALJ failed to properly consider 8 Dr. Persichino’s opinion. 9 and finds that the ALJ provided specific and legitimate reasons 10 (P. Mem. at 3-6). The Court disagrees for assigning Dr. Persichino’s opinion “some weight.” 11 12 Social Security regulations require the ALJ to consider all 13 relevant medical evidence when determining whether a claimant is 14 disabled. 15 Where the Agency finds that the treating physician’s opinion about 16 the nature and severity of the claimant’s impairments is well- 17 supported by accepted medical techniques and is not inconsistent 18 with the other substantive evidence in the record, that opinion is 19 ordinarily controlling. 20 C.F.R. § 404.1527(c)(2); Orn v. Astrue, 20 495 F.3d 625, 631 (9th Cir. 2007). 20 C.F.R. §§ 404.1520(e), 404.1527(c), 416.927(c). 21 22 Nevertheless, the ALJ is also “responsible for determining 23 credibility, resolving conflicts in medical testimony, and for 24 resolving ambiguities.” 25 (9th Cir. 1995); see also Tommasetti v. Astrue, 533 F.3d 1035, 1041 26 (9th Cir. 2008) (“[T]he ALJ is the final arbiter with respect to 27 resolving ambiguities in the medical evidence.”). 28 that are supported by substantial evidence are conclusive. Andrews v. Shalala, 53 F.3d 1035, 1039 14 Findings of fact 42 1 U.S.C. § 405(g); see also Key v. Heckler, 754 F.2d 1545, 1549 (9th 2 Cir. 1985) (“Where the evidence as a whole can support either 3 outcome, [the court] may not substitute [its] judgment for the 4 ALJ’s.”); Ryan v. Comm’r, 528 F.3d 1194, 1198 (9th Cir. 2008) 5 (“‘Where 6 interpretation,’ the ALJ’s decision should be upheld.”) (quoting 7 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). 8 not address every piece of evidence in the record, but only evidence 9 that is significant or probative. 10 evidence is susceptible to more than one rational An ALJ need See Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003). 11 12 Furthermore, “[t]he treating physician’s opinion is not . . . 13 necessarily conclusive as to either a physical condition or the 14 ultimate issue of disability.” 15 751 (9th Cir. 1989). 16 opinion depends on whether it is supported by sufficient medical 17 data and whether it is consistent with other evidence in the record. 18 See 20 C.F.R. § 404.1527. 19 physician’s opinion whether or not that opinion is contradicted. 20 Andrews, 53 F.3d at 1041 (citing Magallanes, 881 F.2d at 751). 21 reject the uncontroverted opinion of a claimant’s physician, the 22 ALJ 23 Andrews, 53 F.3d at 1041. 24 is contradicted by other doctors, the Commissioner may reject the 25 opinion by providing “specific and legitimate reasons” for doing 26 so that are supported by substantial evidence in the record. 27 Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001). must present Magallanes v. Bowen, 881 F.2d 747, The weight given a treating physician’s clear The ALJ may disregard the treating and convincing reasons for doing To so. Where the treating physician’s opinion 28 15 See 1 ALJ Radensky cited specific and legitimate reasons supported 2 by the record for giving “some weight” to Dr. Persichino’s opinion. 3 As ALJ Radensky noted, Plaintiff was able to complete various 4 household tasks and answer questions during the hearing without 5 difficulty. 6 of the State agency medical consultants, ALJ Radensky found that 7 the consultants’ opinions were 8 medical evidence” and similarly noted that Plaintiff was able to 9 cook, use public transportation, and handle money. (AR 18). In affording “great weight” to the opinions “consistent with the objective (AR 18). 10 Although Plaintiff is correct that he need not be “incapacitated” 11 to be disabled, (P. Mem. at 5), ALJ Radensky was permitted to 12 consider whether any restrictions assessed by Dr. Persichino were 13 inconsistent with Plaintiff’s demonstrated abilities. See Rollins, 14 261 F.3d at 856. 15 Dr. Persichino’s opinion was consistent with the record as a whole. 16 20 C.F.R. § 404.1527. 17 legitimate reasons for the weight he assigned to Dr. Persichino’s 18 opinions. ALJ Radensky also properly considered whether Accordingly, the ALJ provided specific and 19 20 Moreover, the Court observes that ALJ Radensky afforded Dr. 21 Persichino’s opinion “some weight,” not “no weight” or “little 22 weight.” 23 limitations would sometimes cause him to “lose time,” affect his 24 ability to concentrate and complete tasks in a “time efficient 25 manner,” and cause “significant difficulty” with authority figures. 26 (AR 410-11). 27 “simple repetitive tasks with limited social interactions” and no 28 “contact with the general public.” Dr. Persichino’s opinion stated that Plaintiff’s ALJ Radensky’s RFC specifically limited Plaintiff to 16 (AR 16). The RFC assessed by 1 ALJ Radensky therefore 2 limitations 3 Radensky 4 (stating, after evaluating Dr. Persichino’s opinion, that “the 5 limitations 6 [Plaintiff’s] allegations and limitations found in the record”)). observed assigning appears by that assessed Dr. account Persichino, opinion herein to “some properly for many consistent weight.” take into of the with ALJ (See AR 18 consideration 7 8 The Court therefore disagrees with Plaintiff’s contention that 9 ALJ Radensky improperly evaluated Dr. Persichino’s opinion and 10 finds that ALJ Radensky provided specific and legitimate reasons 11 for assigning it “some weight.” 12 13 14 B. ALJ Radensky Did Not Err In Determining That Plaintiff Could Return To His Past Relevant Work 15 16 Plaintiff contends that ALJ Radensky erred at step four by 17 finding that he could perform his past relevant work as a cleaner. 18 (P. Mem. at 6-9). The Court disagrees. 19 20 Once the ALJ determines a claimant’s RFC, he then compares 21 these limitations with the job duties of the claimant’s previous 22 work. 23 perform “[t]he actual functional demands and job duties of a 24 particular past relevant job” or “[t]he functional demands and job 25 duties 26 throughout the national economy.” 27 840, 845 (9th Cir. 2001); Lewis v. Barnhart, 281 F.3d 1081, 1083 28 (9th Cir. 2002) (claimant must be able to perform past relevant At step four, the question is whether the claimant can of the occupation as generally 17 required by employers Pinto v. Massanari, 249 F.3d 1 work either as actually performed or as generally performed in the 2 national economy). 3 job as “actually” performed, ALJs consider “a properly completed 4 vocational report” and the claimant’s testimony. 5 at 845; see also Social Security Ruling (“SSR”) 82–62, 1982 WL 6 31386, at *1, *3 (SSA 1982) (“The claimant is the primary source 7 for 8 regarding past work are generally sufficient for determining the 9 skill level[,] exertional demands and nonexertional demands of such 10 vocational When classifying a claimant’s past relevant documentation, and statements Pinto, 249 F.3d by the claimant work.”). 11 12 The best source for information regarding how an occupation 13 is “generally performed” is usually the Dictionary of Occupational 14 Titles (“DOT”). 15 However, an ALJ may rely on expert testimony which contradicts the 16 DOT if the record contains persuasive evidence to support the 17 deviation. 18 1435 (1995)); see also SSR 82-61, 1982 WL 31387, at *2 (SSA 1982) 19 (ALJ may obtain testimony from VE where available documentation is 20 not “sufficient to determine how a particular job is usually 21 performed”). Here, ALJ Radensky found that Plaintiff could perform 22 his past relevant work as actually performed and as generally 23 performed in the regional and national economy. 24 based 25 regarding Plaintiff’s prior application for benefits. his Pinto, 249 F.3d at 845-46 (citations omitted). Id. at 846 (citing Johnson v. Shalala, 60 F.3d 1428, opinion principally on the (AR 19). testimony of The ALJ VE Scott (AR 19). 26 27 Plaintiff claims that, because some of the tasks listed in 28 the DOT definition of “cleaner” appear to involve contact with the 18 1 public and social interactions, Plaintiff is precluded 2 performing work as a cleaner. 3 Plaintiff claims that a cleaner must “keep premises of office 4 building, apartment house, or other commercial or institutional 5 buildings in clean and orderly condition and also set up table and 6 chairs in auditoriums or halls. 7 common areas and places open to the public clean where [Plaintiff] 8 may have to deal or come into contact with the public. 9 also noted having limited social interactions. (P. Mem. at 7-8). from Specifically, This would consist of keeping The RFC However, it does 10 not address with who, for example with supervisors or co-workers. 11 As this job would also require [Plaintiff] to deliver messages or 12 transport small equipment or tools between departments, which would 13 lead to social interactions between co-workers and supervisors and 14 possibly with the general public [sic]. 15 mentioned, [Plaintiff] would not be able to perform his past 16 relevant work as a cleaner.” Based on the above- (Id. at 8). 17 18 Plaintiff is incorrect. The mere fact that some of the tasks 19 in the DOT definition of “cleaner” may result in contact with the 20 public 21 incorrectly relied on VE testimony that Plaintiff could return to 22 his past relevant work. 23 in Gutierrez v. Colvin is instructive. 24 was unable to lift her right arm above her shoulder, and her RFC 25 included limitations to her ability to reach above shoulder level. 26 A VE opined that the claimant could work as a cashier and stated 27 that his opinion was consistent with the DOT’s description of 28 working as a cashier. The ALJ therefore concluded that the claimant or social interactions does not mean that the ALJ The Ninth Circuit’s analysis of the DOT 19 In Gutierrez, the claimant 1 could work as a cashier. On appeal, the claimant argued that the 2 DOT definition of “cashier” required frequent “reaching,” and the 3 ALJ was required to ask specific questions of the VE regarding the 4 claimant’s ability to work as a cashier given her inability to 5 reach overhead. 6 Cir. 2016). See Gutierrez v. Colvin 844 F.3d 804, 807 (9th 7 8 The Ninth Circuit affirmed the ALJ’s opinion, observing that 9 the DOT definition specified several duties required of only some 10 cashiers. Id. at 808 (“The [DOT’s] definition of ‘cashier’ [is] a 11 windy, highly technical, 1000-word effort that specifies that a 12 cashier may need to ‘reach frequently,’ but also be able to read 13 ‘adventure stories and comic books,’ write in ‘cursive,’ ‘interpret 14 bar 15 cars.’”). The Ninth Circuit ruled that the ALJ did not err “because 16 there was no apparent or obvious conflict between the [VE’s] 17 testimony that [the claimant] could perform as a cashier, despite 18 her weight bearing and overhead reaching limitations with her right 19 arm, and the [DOT’s] general statement that cashiering requires 20 frequent reaching.” 21 a difference between an expert’s testimony and the [DOT’s] listings 22 to be fairly characterized as a conflict, it must be obvious or 23 apparent,” i.e., “the testimony must be at odds with the [DOT’s] 24 listing 25 expected.” graphs,’ of and job follow Id. ‘instructions for assembling model The Ninth Circuit also noted that, “[f]or requirements that are essential, integral, or Id. 26 27 28 Gutierrez’s treatment of the DOT is relevant here. Plaintiff’s argument relies heavily on several elements of the DOT 20 1 definition of “cleaner” that may be required of only some cleaners. 2 See DOT 381.687-014 (cleaner keeps premises in clean and orderly 3 condition 4 surfaces, and trim; may cut and trim grass, shovel snow, deliver 5 messages, transport small equipment or tools, or set up tables and 6 chairs 7 interactions and contact with the public may be incidental to some 8 work as a “cleaner,” it is unclear that social interaction and 9 public contact could necessarily be characterized as “essential, 10 integral, or expected” in this occupation such that there is a 11 “conflict” 12 Plaintiff could work as a cleaner. and in cleans auditorium between the and or polishes hall). DOT lighting fixtures, Moreover, definition and VE although marble social testimony that Gutierrez, 844 F.3d at 808. 13 14 Here, in the 2011 hearing before the ALJ, VE Scott confirmed 15 that that an individual with Plaintiff’s vocational profile who 16 was limited to the performance of “simple, repetitive tasks” with 17 “limited social contact” and no contact with the general public 18 would be able to perform Plaintiff’s past work as a cleaner. 19 58-60). 20 the DOT. 21 Corine Porter specifically considered whether Plaintiff’s work 22 would require contact with the public and determined that it would 23 not, 24 principally involved “doing lawn work.” 25 correct that Plaintiff has made no showing that his “speculative, 26 lay interpretation of the DOT” should overcome expert VE testimony. 27 (D. Mem. at 11-12 (citing Bayliss v. Barnhart, 427 F.3d 1211, 1218 28 (9th Cir. 2005))); see also SSR 00-4P, 2000 WL 1898704, at *2 (SSA (AR VE Scott reported that his testimony was consistent with (AR 57). particularly In the second hearing, on January 5, 2015, VE because Plaintiff’s 21 work as (AR 94). a “cleaner” Defendant is 1 2000) (ALJ is entitled to rely on VE’s experience in job placement 2 to account for a particular job’s requirements). 3 4 The Court therefore disagrees with Plaintiff’s contention that 5 ALJ Radensky erred at step four by finding that Plaintiff could 6 perform his past relevant work as a cleaner.4 7 \\ 8 \\ 9 \\ 10 \\ 11 \\ 12 \\ 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Moreover, as Defendant notes, a conflict between Plaintiff’s RFC and the DOT definition of “cleaner” affects whether Plaintiff may work as a cleaner as that occupation is “generally performed.” (D. Mem. at 12); see also Pinto, 249 F.3d at 845-46. At step four, a claimant is not disabled if he can perform either “[t]he actual functional demands and job duties of a particular past relevant job” or “[t]he functional demands and job duties of the occupation as generally required by employers throughout the national economy.” See id. at 845. ALJ Radensky found that Plaintiff could work as a cleaner “as actually and generally performed.” (AR 19 (emphasis added)). Plaintiff’s arguments regarding the DOT are irrelevant to whether Plaintiff could work as a cleaner as he had actually performed that work in the past. Therefore, it appears that the error asserted by Plaintiff is inconsequential to the ultimate non-disability determination and therefore harmless. See Carmickle v. Comm’r, 533 F.3d 1155, 1162 (9th Cir. 2008). 4 22 1 VIII. 2 CONCLUSION 3 4 Consistent with the foregoing, IT IS ORDERED that Judgment be 5 entered AFFIRMING the decision of the Commissioner. The Clerk of 6 the Court shall serve copies of this Order and the Judgment on 7 counsel for both parties. 8 9 DATED: June 16, 2017 /S/ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 10 11 12 13 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW, LEXIS OR ANY OTHER LEGAL DATABASE. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23

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