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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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EASTERN DIVISION

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SERGIO GARCIA,

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Plaintiff,

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v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

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Defendant.

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) Case No. EDCV 17-00391-JDE
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) MEMORANDUM OPINION AND
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) ORDER
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Plaintiff Sergio Garcia (“Plaintiff”) filed a Complaint on March 1, 2017,

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seeking review of the denial of his application for disability insurance benefits

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(“DIB”) by the Commissioner of Social Security (“Commissioner” or

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“Defendant”). Dkt. No. 1. The parties filed consents to proceed before the

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undersigned Magistrate Judge. Dkt. Nos. 11, 13. In accordance with the

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Court’s Order Re: Procedures in Social Security Appeal (Dkt. No. 12), the

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parties filed a Joint Stipulation on January 16, 2018, addressing their respective

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positions. Dkt. No. 20 (“Jt. Stip.”). The Court has taken the Joint Stipulation

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under submission without oral argument and as such, this matter now is ready

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for decision.

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I.

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BACKGROUND

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On June 23, 2014, Plaintiff applied for DIB alleging disability beginning

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September 1, 2013. Administrative Record (“AR”) 334-36. After his

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applications were denied initially and upon reconsideration, Plaintiff requested

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an administrative hearing. AR 211-14, 217-19, 221-22. Plaintiff, represented by

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counsel, appeared and testified at a hearing before an Administrative Law

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Judge (“ALJ”) on September 2, 2015 (AR 143-82), as well as at supplemental

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hearings on February 1 and August 8, 2016. AR 42-68, 69-142.

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On September 2, 2016, the ALJ issued a written decision finding

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Plaintiff was not disabled. AR 17-41. The ALJ found that Plaintiff had not

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engaged in substantial gainful activity since September 1, 2013 and suffered

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from the following severe impairments: osteoarthritis, sleep disorder, affective

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disorder, and anxiety disorder. AR 22. The ALJ found that Plaintiff did not

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have an impairment or combination of impairments that met or medically

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equaled a listed impairment and had the residual functional capacity (“RFC”)

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to perform light work, with the following limitations: Plaintiff could “only

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occasionally climb ladders/ropes/scaffolding; occasionally perform overhead

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reaching; perform simple, repetitive tasks; no contact with the public with

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occasional contact with coworkers and supervisors.” AR 23-24. The ALJ

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found that Plaintiff was incapable of performing his past relevant work as an

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infantry crew member, heavy truck driver, or signalman. AR 33. The ALJ

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determined Plaintiff was capable of performing the following jobs that exist in

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significant numbers in the national economy: housekeeper/cleaner (Dictionary

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of Occupational Titles (“DOT”) 823.687-014), assembler (DOT 729.687-010),

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conductor (DOT 726.687-030), and touch-up screener (DOT 726.684-110). AR

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34. The ALJ concluded that Plaintiff was not disabled from the alleged onset

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date through the date of the decision. AR 35.
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Plaintiff filed a request with the Appeals Council for review of the ALJ’s

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decision. AR 13-14. On January 3, 2017, the Appeals Council denied

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Plaintiff’s request for review, making the ALJ’s decision the Commissioner’s

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final decision. AR 1-6. This action followed.

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II.

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LEGAL STANDARDS

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A. Standard of Review

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Under 42 U.S.C. § 405(g), a district court may review a decision to deny

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benefits. The ALJ’s findings and decision should be upheld if they are free

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from legal error and supported by substantial evidence based on the record as a

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whole. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (as

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amended); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial

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evidence means such relevant evidence as a reasonable person might accept as

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adequate to support a conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035

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(9th Cir. 2007). It is more than a scintilla, but less than a preponderance. Id.

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To determine whether substantial evidence supports a finding, the reviewing

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court “must review the administrative record as a whole, weighing both the

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evidence that supports and the evidence that detracts from the Commissioner’s

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conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). The

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standard of review of a decision by an ALJ is “highly deferential.” Rounds v.

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Comm’r Soc. Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015) (citation

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omitted). “If the evidence can reasonably support either affirming or

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reversing,” the reviewing court “may not substitute its judgment” for that of

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the Commissioner. Reddick, 157 F.3d at 720-21; see also Molina v. Astrue,

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674 F.3d 1104, 1111 (9th Cir. 2012) (“Even when the evidence is susceptible to

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more than one rational interpretation, [the court] must uphold the ALJ’s

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findings if they are supported by inferences reasonably drawn from the

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record.”). However, a court may review only the reasons stated by the ALJ in
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his decision “and may not affirm the ALJ on a ground upon which he did not

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rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).

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Lastly, even when the ALJ commits legal error, the Court upholds the

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decision where that error is harmless. Molina, 674 F.3d at 1115. An error is

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harmless if it is “inconsequential to the ultimate nondisability determination,”

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or if “the agency’s path may reasonably be discerned, even if the agency

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explains its decision with less than ideal clarity.” Brown-Hunter, 806 F.3d at

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492 (citation omitted).

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B. Standard for Determining Disability Benefits
When the claimant’s case has proceeded to consideration by an ALJ, the

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ALJ conducts a five-step sequential evaluation to determine at each step if the

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claimant is or is not disabled. See Molina, 674 F.3d at 1110 (citing, inter alia,

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20 C.F.R. §§ 404.1520(a), 416.920(a)). First, the ALJ considers whether the

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claimant currently performs “substantial gainful activity.” Id. If not, the ALJ

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proceeds to a second step to determine if the claimant has a “severe” medically

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determinable physical or mental impairment or combination of impairments

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that has lasted for more than 12 months. Id. If so, the ALJ proceeds to a third

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step to determine if the claimant’s impairments render the claimant disabled

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because they “meet or equal” any of the “listed impairments” set forth in the

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Social Security regulations. See Rounds, 807 F.3d at 1001. If the claimant’s

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impairments do not meet or equal a “listed impairment,” before proceeding to

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the fourth step, the ALJ assesses the claimant’s RFC, that is, what the claimant

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can do on a sustained basis despite the limitations from her impairments. See

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20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Social Security Ruling (“SSR”)

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96-8p. After determining the claimant’s RFC, the ALJ proceeds to the fourth

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step and determines whether the claimant has the RFC to perform her past

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relevant work, either as she performed it when she worked in the past, or as

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that same job is generally performed in the national economy. See Stacy v.
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Colvin, 825 F.3d 563, 569 (9th Cir. 2016) (citing, inter alia, SSR 82-61); see

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also 20 C.F.R. §§ 404.1560(b), 416.960(b).

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If the claimant cannot perform her past relevant work, the ALJ proceeds

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to a fifth and final step to determine whether there is any other work, in light of

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the claimant’s RFC, age, education, and work experience, that the claimant

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can perform and that exists in “significant numbers” in either the national or

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regional economies. See 20 C.F.R. §§ 404.1520(g), 416.920(g); Tackett v.

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Apfel, 180 F.3d 1094, 1100-01 (9th Cir. 1999). If the claimant can do other

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work, she is not disabled; if the claimant cannot do other work and meets the

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duration requirement, the claimant is disabled. See id. at 1099 (citing 20

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C.F.R. § 404.1560(b)(3)); see also 20 C.F.R. § 416.960(b)(3).

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The claimant generally bears the burden at each of steps one through

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four to show that she is disabled or that she meets the requirements to proceed

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to the next step; the claimant bears the ultimate burden to show that she is

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disabled. See, e.g., Molina, 674 F.3d at 1110; Johnson v. Shalala, 60 F.3d

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1428, 1432 (9th Cir. 1995). However, if the analysis reaches step five, at step

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five the ALJ has a “limited” burden of production to identify representative

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jobs that the claimant can perform and that exist in “significant” numbers in

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the economy. See 20 C.F.R. §§ 404.1560(c)(1)-(2), 416.960(c)(1)-(2); Hill v.

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Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); Tackett, 180 F.3d at 1100.

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III.

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DISCUSSION

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The parties present one issue: “[w]hether the ALJ properly considered

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the opinions of [examining physicians] Drs. Sabourin and Schweller.” Jt. Stip.

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at 4. Plaintiff contends that the ALJ failed to account for limitations assessed

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by Plaintiff’s examining physicians with respect to reaching. Jt. Stip. at 6-8.

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The Commissioner argues that the ALJ appropriately incorporated the phrases

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offered by multiple physicians in assessing the RFC. Jt. Stip. at 9-13.
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A. Applicable Law

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Three types of doctors may offer opinions in Social Security cases: (1)

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those who treated the plaintiff; (2) those who examined but did not treat the

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plaintiff; and (3) those who did neither. Lester v. Chater, 81 F.3d 821, 830 (9th

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Cir. 1995). Treating doctors’ opinions are generally given more weight than

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those of examining doctors, and examining doctors’ opinions generally receive

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more weight than those of non-examining doctors. Id. Treating doctors’

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opinions receive greater weight because they are employed to cure and have

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more opportunity to know and observe patients as individuals. See Magallanes

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v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). “The treating physician’s opinion

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is not, however, necessarily conclusive as to either a physical condition or the

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ultimate issue of disability.” Id. However, “[t]he ALJ may disregard the

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treating physician’s opinion whether or not that opinion is contradicted.” Id.

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An “ALJ need not accept the opinion of any physician . . . if that opinion is

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brief, conclusory, and inadequately supported by clinical findings.” Bray v.

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Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009);

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Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). To reject the un-

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contradicted opinion of a treating doctor, the ALJ must provide “clear and

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convincing reasons that are supported by substantial evidence.” Bayliss v.

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Barhnart, 427 F.3d 1211, 1216 (9th Cir. 2005). Where a treating doctor’s

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opinion is contradicted, the “ALJ may only reject it by providing specific and

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legitimate reasons that are supported by substantial evidence.” Id.

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An ALJ need not recite “magic words” to reject a treating physician’s

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opinion; the court may draw “specific and legitimate inferences” from the

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ALJ’s opinion. Magallanes, 881 F.2d at 755. “[I]n interpreting the evidence

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and developing the record, the ALJ does not need to ‘discuss every piece of

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evidence.’” Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir.

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2003) (quoting Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998)).
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B. Analysis

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At issue is whether the RFC determined by the ALJ properly reflects the

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limitations assessed by examining physicians, Drs. Sabourin and Schweller.

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Plaintiff’s RFC, as determined by the ALJ, limited Plaintiff to “occasionally

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perform[ing] overhead reaching.” AR 24. Dr. Sabourin, a consultative doctor,

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opined that Plaintiff could only occasionally work with arms above shoulder

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level. AR 1113. Dr. Schweller, also a consultative doctor, opined that Plaintiff

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“should avoid above eye-level reaching.” AR 1126. The ALJ accorded these

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opinions “significant weight.”1 AR 28, 29.

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Plaintiff contends that the RFC deviates from the opinions of Drs.

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Sabourin and Schweller. Jt. Stip. at 6. Specifically, Plaintiff takes issue with an

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asserted failure to recognize the “difference between a restriction to occasional

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overhead reaching, as assessed by the ALJ; a restriction to occasional above

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shoulder level reaching, as assessed by Dr. Sabourin; and a restriction to no

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above-eye-level reaching, as assessed by Dr. Schweller.” Id. Plaintiff argues

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that the ALJ’s RFC functionally rejected the opinions of both physicians as the

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ALJ did not offer an explanation for failing to adopt a reaching limitation at

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the shoulder or eye levels. See id. at 8. The Commissioner argues that Plaintiff

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misstates the opinion of Dr. Schweller and that the ALJ appropriately

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translated the various similar opinions offered by different physicians into a

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concrete RFC. Id. 9-14. The Court agrees with the Commissioner.
As a preliminary matter, the Court views the issue Plaintiff raises here as

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one that he arguably waived for failing to raise it during the course of three

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administrative hearings. On September 2, 2015, the ALJ posed a hypothetical

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to a Vocational Expert (“VE”) asking whether there was work in the national

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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.

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economy for someone with Plaintiff’s age, education, and experience, along

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with certain limitations, inter alia, a limitation that Plaintiff could only

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occasionally engage in overhead reaching. AR 179. On February 6 and August

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8, 2016, the ALJ posed hypotheticals to the VE that included the same

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limitation with respect to reaching. AR 65, 111. Over the course of three

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separate hearings, the ALJ asked whether Plaintiff’s counsel wished to ask any

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questions of the VE. AR 67, 113, 180. Each time, counsel declined. Id. “[A]t

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least when claimants are represented by counsel, they must raise all issues and

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evidence at their administrative hearings in order to preserve them on appeal.”

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Shaibi v. Berryhill, 870 F.3d 874, 881 (9th Cir. 2017) (quoting Meanel v. Apfel,

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172 F.3d 1111, 1115 (9th Cir. 1999) (as amended)). While it is true that a

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claimant’s failure to raise a conflict between VE testimony and the DOT

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during the administrative hearing does not constitute a waiver, see Lamear v.

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Berryhill, 865 F.3d 1201, 1206 (9th Cir. 2017), that is not the case here.

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The Court nonetheless declines to decide the issue of waiver. Instead, the

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Court finds that the ALJ appropriately interpreted the opinions of the

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examining physicians in formulating the RFC. The ALJ is required to consider

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all medical opinion evidence and is responsible for resolving conflicts and

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ambiguities in the medical testimony. Tommasetti v. Astrue, 533 F.3d 1035,

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1041 (9th Cir. 2008); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)

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(“Where evidence is susceptible to more than one rational interpretation, it is

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the ALJ’s conclusion that must be upheld.”). Here, the ALJ was presented

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with three slightly differently worded but functionally similar, if not identical,

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opinions relating to Plaintiff’s reaching limitations. The ALJ considered the

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medical opinion evidence and translated them into a concrete RFC – precisely

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what he is required to do. See 20 C.F.R. § 416.920(e).

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Plaintiff contends that the ALJ implicitly rejected the opinions of Drs.
Sabourin and Schweller and, instead, impermissibly relied on the opinions of
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two non-examining state physicians. Jt. Stip. at 8. The two non-examining

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state agency doctors found that Plaintiff could perform occasional overhead

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reaching bilaterally. AR 191, 204. These opinions were given “great weight.”

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AR 30. However, the ALJ’s decision does not state that the ALJ gave greater

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weight to the state agency doctors’ opinions over those offered by Drs.

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Schweller and Sabourin with respect to the lifting restriction at issue. As the

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ALJ did not reject the state agency opinions, he of course was not required to

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articulate specific and legitimate reasons for doing so.

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In parsing the phrases used by the various physicians, Plaintiff purports

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to create a conflict where none exists. Although Plaintiff asserts that other

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circuits distinguish between “overhead reaching” and “above the shoulder

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reaching” (Jt. Stip. at 6-7), the Ninth Circuit has recently decided two cases

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involving “reaching” assessments, and in both cases, the Ninth Circuit used

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the terms “overhead” and “above shoulder level” interchangeably in describing

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claimants’ reaching limitations. See Lamear, 865 F.3d at 1205; see also

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Gutierrez v. Colvin, 844 F.3d 804, 807 (9th Cir. 2016). Other recent decisions

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from within this district similarly use the terms interchangeably. Ledesma v.

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Berryhill, SACV 16-882-AGR, 2017 WL 2347181, at *4 (C.D. Cal. May 30,

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2017); Ibach v. Colvin, No. EDCV 15-2647-AJW, 2017 WL 651940, at *4-5

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(C.D. Cal. Feb. 17, 2017) (analyzing claimant’s above-the-shoulder reaching

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limitation from his RFC using the term “overhead”); Riad v. Colvin, No.

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EDCV 13-1720 RNB, 2014 WL 2938512, at * 5 (C.D. Cal. June 30, 2014)

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(noting “the Ninth Circuit supports the proposition that ‘reaching’

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encompasses overhead or above-shoulder-reaching”).

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In addition, Plaintiff does not ever appear to assert what Plaintiff

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considers to be the appropriate limitation – above eye-level, or above shoulder-

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level. That failure may be because, as the Commissioner aptly notes, it is “hard

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to imagine how the small space between the shoulder, the eye, and the top of
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the head could matter in the ultimate disability determination here[.]” Jt. Stip.

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at 9. “[T]he venerable maxim de minimis non curat lex (‘the law cares not for

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trifles') is part of the established background of legal principles against which

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all enactments are adopted, and which all enactments (absent contrary

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indication) are deemed to accept.” Wisconsin Dep't of Revenue v. William

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Wrigley, Jr., Co., 505 U.S. 214, 231 (1992) (collecting cases); see also Skaff v.

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Meridien North America Beverly Hills, LLC, 506 F.3d 832, 839-840 (9th Cir.

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2007). As Plaintiff does not even purport to specify what other limitation

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should apply, nor explain how a difference between a limitation involving

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occasional overheard versus occasion above eye-level or shoulder-level would

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affect the ultimate determination here, the Court, again noting that the Ninth

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Circuit uses the phrases above-the-shoulder and overhead interchangeably,

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finds the ALJ properly synthesized the various language used by various

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consulting doctors to properly assess Plaintiff’s RFC.

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IV.

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ORDER

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IT IS ORDERED that Judgment be entered affirming the decision of the
Commissioner and dismissing this action with prejudice.

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Dated: February 13, 2018

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______________________________
JOHN D. EARLY
United States Magistrate Judge

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