Sergio Garcia v. Nancy A. Berryhill

Filing 21

MEMORANDUM OPINION AND ORDER by Magistrate Judge John D. Early: IT IS ORDERED that Judgment be entered affirming the decision of the Commissioner and dismissing this action with prejudice. See document for further information. (lwag)

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1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 SERGIO GARCIA, 12 Plaintiff, 13 14 15 v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 Defendant. 17 ) Case No. EDCV 17-00391-JDE ) ) ) MEMORANDUM OPINION AND ) ) ORDER ) ) ) ) ) ) ) ) 18 19 Plaintiff Sergio Garcia (“Plaintiff”) filed a Complaint on March 1, 2017, 20 seeking review of the denial of his application for disability insurance benefits 21 (“DIB”) by the Commissioner of Social Security (“Commissioner” or 22 “Defendant”). Dkt. No. 1. The parties filed consents to proceed before the 23 undersigned Magistrate Judge. Dkt. Nos. 11, 13. In accordance with the 24 Court’s Order Re: Procedures in Social Security Appeal (Dkt. No. 12), the 25 parties filed a Joint Stipulation on January 16, 2018, addressing their respective 26 positions. Dkt. No. 20 (“Jt. Stip.”). The Court has taken the Joint Stipulation 27 under submission without oral argument and as such, this matter now is ready 28 for decision. 1 I. 2 BACKGROUND 3 On June 23, 2014, Plaintiff applied for DIB alleging disability beginning 4 September 1, 2013. Administrative Record (“AR”) 334-36. After his 5 applications were denied initially and upon reconsideration, Plaintiff requested 6 an administrative hearing. AR 211-14, 217-19, 221-22. Plaintiff, represented by 7 counsel, appeared and testified at a hearing before an Administrative Law 8 Judge (“ALJ”) on September 2, 2015 (AR 143-82), as well as at supplemental 9 hearings on February 1 and August 8, 2016. AR 42-68, 69-142. 10 On September 2, 2016, the ALJ issued a written decision finding 11 Plaintiff was not disabled. AR 17-41. The ALJ found that Plaintiff had not 12 engaged in substantial gainful activity since September 1, 2013 and suffered 13 from the following severe impairments: osteoarthritis, sleep disorder, affective 14 disorder, and anxiety disorder. AR 22. The ALJ found that Plaintiff did not 15 have an impairment or combination of impairments that met or medically 16 equaled a listed impairment and had the residual functional capacity (“RFC”) 17 to perform light work, with the following limitations: Plaintiff could “only 18 occasionally climb ladders/ropes/scaffolding; occasionally perform overhead 19 reaching; perform simple, repetitive tasks; no contact with the public with 20 occasional contact with coworkers and supervisors.” AR 23-24. The ALJ 21 found that Plaintiff was incapable of performing his past relevant work as an 22 infantry crew member, heavy truck driver, or signalman. AR 33. The ALJ 23 determined Plaintiff was capable of performing the following jobs that exist in 24 significant numbers in the national economy: housekeeper/cleaner (Dictionary 25 of Occupational Titles (“DOT”) 823.687-014), assembler (DOT 729.687-010), 26 conductor (DOT 726.687-030), and touch-up screener (DOT 726.684-110). AR 27 34. The ALJ concluded that Plaintiff was not disabled from the alleged onset 28 date through the date of the decision. AR 35. 2 1 Plaintiff filed a request with the Appeals Council for review of the ALJ’s 2 decision. AR 13-14. On January 3, 2017, the Appeals Council denied 3 Plaintiff’s request for review, making the ALJ’s decision the Commissioner’s 4 final decision. AR 1-6. This action followed. 5 II. 6 LEGAL STANDARDS 7 A. Standard of Review 8 Under 42 U.S.C. § 405(g), a district court may review a decision to deny 9 benefits. The ALJ’s findings and decision should be upheld if they are free 10 from legal error and supported by substantial evidence based on the record as a 11 whole. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (as 12 amended); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial 13 evidence means such relevant evidence as a reasonable person might accept as 14 adequate to support a conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 15 (9th Cir. 2007). It is more than a scintilla, but less than a preponderance. Id. 16 To determine whether substantial evidence supports a finding, the reviewing 17 court “must review the administrative record as a whole, weighing both the 18 evidence that supports and the evidence that detracts from the Commissioner’s 19 conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). The 20 standard of review of a decision by an ALJ is “highly deferential.” Rounds v. 21 Comm’r Soc. Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015) (citation 22 omitted). “If the evidence can reasonably support either affirming or 23 reversing,” the reviewing court “may not substitute its judgment” for that of 24 the Commissioner. Reddick, 157 F.3d at 720-21; see also Molina v. Astrue, 25 674 F.3d 1104, 1111 (9th Cir. 2012) (“Even when the evidence is susceptible to 26 more than one rational interpretation, [the court] must uphold the ALJ’s 27 findings if they are supported by inferences reasonably drawn from the 28 record.”). However, a court may review only the reasons stated by the ALJ in 3 1 his decision “and may not affirm the ALJ on a ground upon which he did not 2 rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 3 Lastly, even when the ALJ commits legal error, the Court upholds the 4 decision where that error is harmless. Molina, 674 F.3d at 1115. An error is 5 harmless if it is “inconsequential to the ultimate nondisability determination,” 6 or if “the agency’s path may reasonably be discerned, even if the agency 7 explains its decision with less than ideal clarity.” Brown-Hunter, 806 F.3d at 8 492 (citation omitted). 9 10 B. Standard for Determining Disability Benefits When the claimant’s case has proceeded to consideration by an ALJ, the 11 ALJ conducts a five-step sequential evaluation to determine at each step if the 12 claimant is or is not disabled. See Molina, 674 F.3d at 1110 (citing, inter alia, 13 20 C.F.R. §§ 404.1520(a), 416.920(a)). First, the ALJ considers whether the 14 claimant currently performs “substantial gainful activity.” Id. If not, the ALJ 15 proceeds to a second step to determine if the claimant has a “severe” medically 16 determinable physical or mental impairment or combination of impairments 17 that has lasted for more than 12 months. Id. If so, the ALJ proceeds to a third 18 step to determine if the claimant’s impairments render the claimant disabled 19 because they “meet or equal” any of the “listed impairments” set forth in the 20 Social Security regulations. See Rounds, 807 F.3d at 1001. If the claimant’s 21 impairments do not meet or equal a “listed impairment,” before proceeding to 22 the fourth step, the ALJ assesses the claimant’s RFC, that is, what the claimant 23 can do on a sustained basis despite the limitations from her impairments. See 24 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Social Security Ruling (“SSR”) 25 96-8p. After determining the claimant’s RFC, the ALJ proceeds to the fourth 26 step and determines whether the claimant has the RFC to perform her past 27 relevant work, either as she performed it when she worked in the past, or as 28 that same job is generally performed in the national economy. See Stacy v. 4 1 Colvin, 825 F.3d 563, 569 (9th Cir. 2016) (citing, inter alia, SSR 82-61); see 2 also 20 C.F.R. §§ 404.1560(b), 416.960(b). 3 If the claimant cannot perform her past relevant work, the ALJ proceeds 4 to a fifth and final step to determine whether there is any other work, in light of 5 the claimant’s RFC, age, education, and work experience, that the claimant 6 can perform and that exists in “significant numbers” in either the national or 7 regional economies. See 20 C.F.R. §§ 404.1520(g), 416.920(g); Tackett v. 8 Apfel, 180 F.3d 1094, 1100-01 (9th Cir. 1999). If the claimant can do other 9 work, she is not disabled; if the claimant cannot do other work and meets the 10 duration requirement, the claimant is disabled. See id. at 1099 (citing 20 11 C.F.R. § 404.1560(b)(3)); see also 20 C.F.R. § 416.960(b)(3). 12 The claimant generally bears the burden at each of steps one through 13 four to show that she is disabled or that she meets the requirements to proceed 14 to the next step; the claimant bears the ultimate burden to show that she is 15 disabled. See, e.g., Molina, 674 F.3d at 1110; Johnson v. Shalala, 60 F.3d 16 1428, 1432 (9th Cir. 1995). However, if the analysis reaches step five, at step 17 five the ALJ has a “limited” burden of production to identify representative 18 jobs that the claimant can perform and that exist in “significant” numbers in 19 the economy. See 20 C.F.R. §§ 404.1560(c)(1)-(2), 416.960(c)(1)-(2); Hill v. 20 Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); Tackett, 180 F.3d at 1100. 21 III. 22 DISCUSSION 23 The parties present one issue: “[w]hether the ALJ properly considered 24 the opinions of [examining physicians] Drs. Sabourin and Schweller.” Jt. Stip. 25 at 4. Plaintiff contends that the ALJ failed to account for limitations assessed 26 by Plaintiff’s examining physicians with respect to reaching. Jt. Stip. at 6-8. 27 The Commissioner argues that the ALJ appropriately incorporated the phrases 28 offered by multiple physicians in assessing the RFC. Jt. Stip. at 9-13. 5 1 A. Applicable Law 2 Three types of doctors may offer opinions in Social Security cases: (1) 3 those who treated the plaintiff; (2) those who examined but did not treat the 4 plaintiff; and (3) those who did neither. Lester v. Chater, 81 F.3d 821, 830 (9th 5 Cir. 1995). Treating doctors’ opinions are generally given more weight than 6 those of examining doctors, and examining doctors’ opinions generally receive 7 more weight than those of non-examining doctors. Id. Treating doctors’ 8 opinions receive greater weight because they are employed to cure and have 9 more opportunity to know and observe patients as individuals. See Magallanes 10 v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). “The treating physician’s opinion 11 is not, however, necessarily conclusive as to either a physical condition or the 12 ultimate issue of disability.” Id. However, “[t]he ALJ may disregard the 13 treating physician’s opinion whether or not that opinion is contradicted.” Id. 14 An “ALJ need not accept the opinion of any physician . . . if that opinion is 15 brief, conclusory, and inadequately supported by clinical findings.” Bray v. 16 Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009); 17 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). To reject the un- 18 contradicted opinion of a treating doctor, the ALJ must provide “clear and 19 convincing reasons that are supported by substantial evidence.” Bayliss v. 20 Barhnart, 427 F.3d 1211, 1216 (9th Cir. 2005). Where a treating doctor’s 21 opinion is contradicted, the “ALJ may only reject it by providing specific and 22 legitimate reasons that are supported by substantial evidence.” Id. 23 An ALJ need not recite “magic words” to reject a treating physician’s 24 opinion; the court may draw “specific and legitimate inferences” from the 25 ALJ’s opinion. Magallanes, 881 F.2d at 755. “[I]n interpreting the evidence 26 and developing the record, the ALJ does not need to ‘discuss every piece of 27 evidence.’” Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 28 2003) (quoting Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998)). 6 1 B. Analysis 2 At issue is whether the RFC determined by the ALJ properly reflects the 3 limitations assessed by examining physicians, Drs. Sabourin and Schweller. 4 Plaintiff’s RFC, as determined by the ALJ, limited Plaintiff to “occasionally 5 perform[ing] overhead reaching.” AR 24. Dr. Sabourin, a consultative doctor, 6 opined that Plaintiff could only occasionally work with arms above shoulder 7 level. AR 1113. Dr. Schweller, also a consultative doctor, opined that Plaintiff 8 “should avoid above eye-level reaching.” AR 1126. The ALJ accorded these 9 opinions “significant weight.”1 AR 28, 29. 10 Plaintiff contends that the RFC deviates from the opinions of Drs. 11 Sabourin and Schweller. Jt. Stip. at 6. Specifically, Plaintiff takes issue with an 12 asserted failure to recognize the “difference between a restriction to occasional 13 overhead reaching, as assessed by the ALJ; a restriction to occasional above 14 shoulder level reaching, as assessed by Dr. Sabourin; and a restriction to no 15 above-eye-level reaching, as assessed by Dr. Schweller.” Id. Plaintiff argues 16 that the ALJ’s RFC functionally rejected the opinions of both physicians as the 17 ALJ did not offer an explanation for failing to adopt a reaching limitation at 18 the shoulder or eye levels. See id. at 8. The Commissioner argues that Plaintiff 19 misstates the opinion of Dr. Schweller and that the ALJ appropriately 20 translated the various similar opinions offered by different physicians into a 21 concrete RFC. Id. 9-14. The Court agrees with the Commissioner. As a preliminary matter, the Court views the issue Plaintiff raises here as 22 23 one that he arguably waived for failing to raise it during the course of three 24 administrative hearings. On September 2, 2015, the ALJ posed a hypothetical 25 to a Vocational Expert (“VE”) asking whether there was work in the national 26 27 28 1 Though some of Dr. Sabourin’s opinion was given “less” and “partial” weight, the portion relating to reaching limitations was accorded “significant” weight. AR 28. 7 1 economy for someone with Plaintiff’s age, education, and experience, along 2 with certain limitations, inter alia, a limitation that Plaintiff could only 3 occasionally engage in overhead reaching. AR 179. On February 6 and August 4 8, 2016, the ALJ posed hypotheticals to the VE that included the same 5 limitation with respect to reaching. AR 65, 111. Over the course of three 6 separate hearings, the ALJ asked whether Plaintiff’s counsel wished to ask any 7 questions of the VE. AR 67, 113, 180. Each time, counsel declined. Id. “[A]t 8 least when claimants are represented by counsel, they must raise all issues and 9 evidence at their administrative hearings in order to preserve them on appeal.” 10 Shaibi v. Berryhill, 870 F.3d 874, 881 (9th Cir. 2017) (quoting Meanel v. Apfel, 11 172 F.3d 1111, 1115 (9th Cir. 1999) (as amended)). While it is true that a 12 claimant’s failure to raise a conflict between VE testimony and the DOT 13 during the administrative hearing does not constitute a waiver, see Lamear v. 14 Berryhill, 865 F.3d 1201, 1206 (9th Cir. 2017), that is not the case here. 15 The Court nonetheless declines to decide the issue of waiver. Instead, the 16 Court finds that the ALJ appropriately interpreted the opinions of the 17 examining physicians in formulating the RFC. The ALJ is required to consider 18 all medical opinion evidence and is responsible for resolving conflicts and 19 ambiguities in the medical testimony. Tommasetti v. Astrue, 533 F.3d 1035, 20 1041 (9th Cir. 2008); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) 21 (“Where evidence is susceptible to more than one rational interpretation, it is 22 the ALJ’s conclusion that must be upheld.”). Here, the ALJ was presented 23 with three slightly differently worded but functionally similar, if not identical, 24 opinions relating to Plaintiff’s reaching limitations. The ALJ considered the 25 medical opinion evidence and translated them into a concrete RFC – precisely 26 what he is required to do. See 20 C.F.R. § 416.920(e). 27 28 Plaintiff contends that the ALJ implicitly rejected the opinions of Drs. Sabourin and Schweller and, instead, impermissibly relied on the opinions of 8 1 two non-examining state physicians. Jt. Stip. at 8. The two non-examining 2 state agency doctors found that Plaintiff could perform occasional overhead 3 reaching bilaterally. AR 191, 204. These opinions were given “great weight.” 4 AR 30. However, the ALJ’s decision does not state that the ALJ gave greater 5 weight to the state agency doctors’ opinions over those offered by Drs. 6 Schweller and Sabourin with respect to the lifting restriction at issue. As the 7 ALJ did not reject the state agency opinions, he of course was not required to 8 articulate specific and legitimate reasons for doing so. 9 In parsing the phrases used by the various physicians, Plaintiff purports 10 to create a conflict where none exists. Although Plaintiff asserts that other 11 circuits distinguish between “overhead reaching” and “above the shoulder 12 reaching” (Jt. Stip. at 6-7), the Ninth Circuit has recently decided two cases 13 involving “reaching” assessments, and in both cases, the Ninth Circuit used 14 the terms “overhead” and “above shoulder level” interchangeably in describing 15 claimants’ reaching limitations. See Lamear, 865 F.3d at 1205; see also 16 Gutierrez v. Colvin, 844 F.3d 804, 807 (9th Cir. 2016). Other recent decisions 17 from within this district similarly use the terms interchangeably. Ledesma v. 18 Berryhill, SACV 16-882-AGR, 2017 WL 2347181, at *4 (C.D. Cal. May 30, 19 2017); Ibach v. Colvin, No. EDCV 15-2647-AJW, 2017 WL 651940, at *4-5 20 (C.D. Cal. Feb. 17, 2017) (analyzing claimant’s above-the-shoulder reaching 21 limitation from his RFC using the term “overhead”); Riad v. Colvin, No. 22 EDCV 13-1720 RNB, 2014 WL 2938512, at * 5 (C.D. Cal. June 30, 2014) 23 (noting “the Ninth Circuit supports the proposition that ‘reaching’ 24 encompasses overhead or above-shoulder-reaching”). 25 In addition, Plaintiff does not ever appear to assert what Plaintiff 26 considers to be the appropriate limitation – above eye-level, or above shoulder- 27 level. That failure may be because, as the Commissioner aptly notes, it is “hard 28 to imagine how the small space between the shoulder, the eye, and the top of 9 1 the head could matter in the ultimate disability determination here[.]” Jt. Stip. 2 at 9. “[T]he venerable maxim de minimis non curat lex (‘the law cares not for 3 trifles') is part of the established background of legal principles against which 4 all enactments are adopted, and which all enactments (absent contrary 5 indication) are deemed to accept.” Wisconsin Dep't of Revenue v. William 6 Wrigley, Jr., Co., 505 U.S. 214, 231 (1992) (collecting cases); see also Skaff v. 7 Meridien North America Beverly Hills, LLC, 506 F.3d 832, 839-840 (9th Cir. 8 2007). As Plaintiff does not even purport to specify what other limitation 9 should apply, nor explain how a difference between a limitation involving 10 occasional overheard versus occasion above eye-level or shoulder-level would 11 affect the ultimate determination here, the Court, again noting that the Ninth 12 Circuit uses the phrases above-the-shoulder and overhead interchangeably, 13 finds the ALJ properly synthesized the various language used by various 14 consulting doctors to properly assess Plaintiff’s RFC. 15 IV. 16 ORDER 17 18 IT IS ORDERED that Judgment be entered affirming the decision of the Commissioner and dismissing this action with prejudice. 19 20 Dated: February 13, 2018 21 ______________________________ JOHN D. EARLY United States Magistrate Judge 22 23 24 25 26 27 28 10

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