Garst v. Colvin

Filing 17

REPORT AND RECOMMENDATION that Plaintiff's ECF No. 9 Motion to Remand be denied; that Defendant's ECF No. 15 Cross Motion to Affirm be granted; and that the Clerk enter judgment and close case. Objections to R&R due by 8/15/2017. Signed by Magistrate Judge Valerie P. Cooke on 8/1/2017. (Copies have been distributed pursuant to the NEF - KR)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 3:16-cv-00495-MMD-VPC JAMES GARST, Plaintiff, 5 6 7 8 v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE Defendant. 9 10 11 This Report and Recommendation is made to the Honorable Miranda M. Du, United 12 States District Judge. The action was referred to the undersigned Magistrate Judge pursuant to 28 13 U.S.C. § 636(b)(1)(B) and LR IB 1-4. Before the court is plaintiff’s motion for reversal and/or 14 remand (ECF No. 9), and defendant’s cross-motion to affirm (ECF No. 15). For the reasons set 15 forth herein, the court recommends that plaintiff’s motion be denied, and defendant’s cross- 16 motion be granted. 17 I. FACTUAL AND PROCEDURAL BACKGROUND 18 On January 5, 2013, James Garst (“plaintiff”) protectively filed for Social Security 19 Disability Insurance (“SSDI”) benefits under Title II of the Social Security Act, alleging a 20 disability onset date of June 20, 2012. (Administrative Record (“AR”) 14, 156–67.) The Social 21 Security Administration denied plaintiff’s application in the first instance on September 30, 2013, 22 and upon reconsideration on March 12, 2014. (Id. at 88–91, 94–99.) 23 On February 11, 2015, plaintiff and his attorney appeared for a video hearing before 24 Administrative Law Judge (“ALJ”) Christopher Inama. (Id. at 30–55.) Robin Generaux, a 25 vocational expert (“VE”), also appeared at the hearing. (Id.) The ALJ issued a written decision 26 on April 3, 2015, finding that plaintiff had not been disabled at any time between the alleged 27 onset date and the date of the decision. (Id. at 11–22.) Plaintiff appealed, and the Appeals 28 Council denied review on August 4, 2016. (Id. at 1–7.) Accordingly, the ALJ’s decision became 1 the final decision of the Commissioner (“defendant”). 2 remedies, plaintiff filed a complaint for judicial review on August 22, 2016. (ECF No. 1.) 3 II. Having exhausted all administrative STANDARD OF REVIEW 4 The initial burden of proof to establish disability in a claim for SSDI benefits rests upon 5 the claimant. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). To satisfy this burden, the 6 claimant must demonstrate an “inability to engage in any substantial gainful activity by reason of 7 any medically determinable physical or mental impairment which can be expected . . . to last for a 8 continuous period of not less than 12 months . . ..” 42 U.S.C. § 423(d)(1)(A). 9 This court has jurisdiction to review an ALJ’s decision to deny a claim for benefits after 10 the claimant has exhausted all administrative remedies. See Brewes v. Comm’r of Soc. Sec. 11 Admin., 682 F.3d 1157, 1161–62 (9th Cir. 2012). The court must affirm the ALJ’s decision 12 unless it rests on legal error or is unsupported by substantial evidence in the administrative 13 record. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014); see also 42 U.S.C. § 405(g) 14 (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial 15 evidence, shall be conclusive.”). The substantial evidence standard is not onerous. It is “more 16 than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable 17 mind might accept as adequate to support a conclusion.” Hill v. Astrue, 698 F.3d 1153, 1159 (9th 18 Cir. 2012) (internal quotation omitted). 19 Although the ALJ need not discuss every piece of evidence in the record, she cannot 20 ignore or omit evidence that is significant or probative. Hiler v. Astrue, 687 F.3d 1208, 1212 (9th 21 Cir. 2012). The ALJ’s discussion must adequately explain the decision in light of such evidence. 22 “The ALJ, not the district court, is required to provide specific reasons for rejecting [the 23 evidence.]” Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (specifically 24 discussing rejection of lay testimony). The district court’s review is thus constrained to the 25 reasons asserted by the ALJ. Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). 26 To determine whether substantial evidence exists, the court must look at the record as a 27 whole, considering both evidence that supports and undermines the ALJ’s decision; it “may not 28 affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. Soc. Sec. 2 1 Admin., 466 F.3d 880, 882 (9th Cir. 2006) (internal quotation omitted). Where “the evidence is 2 susceptible of more than one rational interpretation, the decision of the ALJ must be upheld.” 3 Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (internal quotation omitted). The ALJ alone is 4 responsible for determining credibility and resolving ambiguities. Garrison, 759 F.3d at 1010. III. 5 6 A. DISCUSSION SSDI claims are evaluated under a five-step sequential process. 7 The Commissioner follows a five-step sequential process for determining whether a 8 claimant is “disabled” for the purposes of SSDI. 20 C.F.R. § 404.1520(a)(4); see also Barnhart v. 9 Thomas, 540 U.S. 20, 24 (2003). Step one directs the ALJ to determine whether the claimant is 10 engaged in “substantial gainful activity.” 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not 11 disabled and the Commissioner denies the claim. Id. § 404.1520(b). 12 The second step requires the ALJ to determine whether the claimant’s medically 13 determinable impairment is “severe.” Id. § 404.1520(a)(4)(ii). “Severe” impairments are those 14 that significantly limit the claimant’s physical or mental ability to do basic work activities. Id. § 15 404.1520(c). The Commissioner will deny the claim if the claimant lacks a severe impairment or 16 combination of impairments. Id. 17 At step three, the claimant’s impairment is compared to those listed in the Social Security 18 Regulations at 20 C.F.R. Pt. 404, Subpart P, Appendix 1. Id. § 404.1520(a)(4)(iii). The list in 19 Appendix 1 “define[s] impairments that would prevent an adult, regardless of his [or her] age, 20 education, or work experience, from performing any gainful activity, not just substantial gainful 21 activity.” Sullivan v. Zebley, 493 U.S. 521, 532 (1990) (internal quotation omitted) (emphasis in 22 original). Where the claimant’s impairment is on the list, or is equivalent to a listed impairment, 23 and the claimant also meets the corresponding durational requirement, the claimant is deemed 24 disabled. 20 C.F.R. § 404.1520(d). However, for an impairment to match a listing, “it must meet 25 all of the specified medical criteria. An impairment that manifests only some of those criteria, no 26 matter how severely, does not qualify.” Zebley, 493 U.S. at 530 (emphasis in original). 27 If the Commissioner does not find disability at step three, review of the claim proceeds to 28 step four. There, the ALJ considers whether the claimant can perform past relevant work despite 3 1 the severe impairment. 20 C.F.R. § 404.1520(a)(4)(iv). If so, the claimant is not disabled. Id. § 2 404.1520(e). The ALJ will find that the claimant can return to past relevant work if he or she can 3 perform the “actual functional demands and job duties of a particular past relevant job” or the 4 “functional demands and job duties of the [past] occupation as generally required by employers 5 throughout the national economy.” Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001) 6 (internal quotation omitted). 7 In making the step four determination, the ALJ considers the claimant’s RFC and the 8 physical and mental demands of the work previously performed. 20 C.F.R. § 404.1520(f); see 9 also Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). The RFC is the most the claimant can 10 do despite his or her limitations. 20 C.F.R. § 404.1545(a)(1). To determine the claimant’s RFC, 11 the ALJ must assess all the evidence, including medical reports and descriptions by the claimant 12 and others of the claimant’s relevant limitations. See id. § 404.1545(a)(3). The ALJ is not, 13 however, required to accept as true every allegation the claimant offers regarding his or her 14 limitations. Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007). The ALJ must follow a two-prong 15 inquiry where the claimant alleges subjective pain or symptoms. Lingenfelter v. Astrue, 504 F.3d 16 1028, 1035–36 (9th Cir. 2007); see also SSR 96-7p, 61 Fed. Reg. 34483 (July 2, 1996). First, the 17 ALJ determines “whether the claimant has presented objective medical evidence of an underlying 18 impairment which could reasonably be expected to produce the pain or other symptoms alleged.” 19 Lingenfelter, 504 F.3d at 1036 (internal quotation omitted). Second, if the first prong is met and 20 no evidence suggests that the claimant is a malingerer, the ALJ may reject the claimant’s 21 allegations only by articulating “clear and convincing” reasons for doing so. Id. 22 The “clear and convincing” standard is the most demanding standard in Social Security 23 case law, Garrison, 759 F.3d at 1015, and it requires the ALJ to “specifically identify the 24 testimony she or he finds not to be credible and [to] explain what evidence undermines the 25 testimony,” Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). The ALJ must therefore 26 cite to the record and discuss specific evidence therein. See Vasquez v. Astrue, 572 F.3d 586, 27 591–92, 592 n.1 (9th Cir. 2008); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The ALJ 28 may consider a variety of factors in weighing a claimant’s credibility, including inconsistencies in 4 1 a claimant’s testimony, his or her reputation for truthfulness, an inadequately explained failure to 2 seek treatment, or a lack of support from the medical evidence. 20 C.F.R. § 404.1529(c); Orn, 3 495 F.3d at 636. The focus, however, is ultimately upon the reviewing court. The credibility 4 determination must be “‘sufficiently specific to allow a reviewing court to conclude the ALJ 5 rejected the claimant’s testimony on permissible grounds and did not arbitrarily discredit the 6 claimant’s testimony.’” Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004) (quoting Rollins v. 7 Massanari, 261 F.3d 853, 856–57 (9th Cir. 2001)). 8 If step four demonstrates that the claimant cannot do the work he or she did in the past, the 9 burden shifts to the Commissioner to establish, in step five, that the claimant can perform jobs 10 available in the national economy. 20 C.F.R. § 404.1560(c). There, the ALJ must consider the 11 claimant’s RFC, age, education, and past work experience to determine whether the claimant can 12 do other work. Bowen v. Yuckert, 482 U.S. 137, 142 (1987); Hoopai v. Astrue, 499 F.3d 1071, 13 1075 (9th Cir. 2007). The ALJ will typically reference “the grids,” under which a finding of 14 disability may be directed, and also consider the testimony of a VE. Tackett v. Apfel, 180 F.3d 15 1094, 1101 (9th Cir. 1999). Where the grids do not direct a finding of disability, the ALJ must 16 identify other jobs that the claimant can perform and which are available in significant numbers in 17 the claimant’s region or in several regions of the United States. 42 U.S.C. § 423(d)(2)(A); 20 18 C.F.R. § 404.1560(c). If the ALJ establishes that the claimant’s RFC and transferable skills allow 19 him or her to perform other occupations, the claimant is not disabled. 20 C.F.R. § 404.1566. 20 Conversely, if the ALJ concludes that the claimant cannot adjust to any other work, he or she is 21 disabled and entitled to benefits. Id. § 404.1520(g). 22 B. The ALJ followed the five-step process and concluded that plaintiff was not disabled. 23 In reviewing plaintiff’s claims for benefits, the ALJ followed the five-step process 24 described above. The ALJ first determined that plaintiff had not engaged in substantial gainful 25 activity since, June 20, 2012, the alleged onset date. (AR 16.) At step two, the ALJ found that 26 plaintiff’s history of reconstructive surgery on the bilateral hip, diabetes mellitus, type II, insulin 27 dependent, obesity, and peripheral neuropathy were severe impairments that significantly limited 28 his ability to perform basic-work related functions. (Id. at 16–17.) The ALJ considered evidence 5 1 of other complaints and diagnoses, including but not limited to, cold symptoms, low back pain, 2 loss of visual acuity, prostate pain, high cholesterol, bronchitis, and hypertension, but found those 3 to be non-severe. (Id.) At step three, the ALJ concluded that plaintiff did not have an impairment 4 or combination of impairments that met or medically equaled the severity of any listed 5 impairment. (Id. at 17–18.) 6 The ALJ proceeded to step four and made several findings. To begin, the ALJ concluded 7 that plaintiff had the RFC to perform light work, but with some limitations. (Id. at 18.) For 8 example, that he can occasionally climb ramps and stairs; can never climb ladders, ropes, and 9 scaffolds; can occasionally balance and stoop; and can never kneel, crouch, or crawl; with no 10 manipulative limits. (Id.) The ALJ also found that he should avoid all exposure to hazards at 11 unprotected heights or dangerous machinery. (Id.) Finally, that plaintiff can perform work from 12 a sit or stand position, can stand and walk only two hours in an eight-hour day, and only have 13 frequent foot controls with the bilateral lower extremities. (Id.) Next, the ALJ found that 14 plaintiff’s impairments could be expected to cause the symptoms alleged, but that his statements 15 regarding the intensity, persistence, and limiting effects of those symptoms were not entirely 16 credible. (Id. at 18–21.) In reaching this conclusion, the ALJ reviewed and discussed the 17 objective medical evidence, medical opinions, and factors weighing against plaintiff’s credibility. 18 (Id.) Finally, based on the evidence in the record and the testimony of the VE, the ALJ concluded 19 that plaintiff was capable of performing his past relevant work as a sales person, and as an 20 insurance salesperson, if his RFC were sedentary. (Id. at 21–22.) 21 A claimant is deemed not disabled at step four if capable of performing past relevant 22 work. 20 C.F.R. § 416.960(b)(3). Thus, having found that plaintiff could perform his past work, 23 the ALJ held that he was not disabled and denied his claim for benefits. (AR 22.) 24 C. The Appeals Council properly considered “new evidence” presented by Dr. Smith. 25 First, plaintiff contends that the Appeals Council erred by according no weight to new 26 medical opinion evidence presented to it. (ECF No. 9 at 12–13.) Defendant maintains that the 27 Appeals Council properly assessed the opinion of plaintiff’s treating physician, Dr. Kathleen 28 Smith, and found that the evidence did “not provide a basis for changing the Administrative Law 6 1 Judge’s decision.” (ECF No. 15 at 4 (citing AR 2, 5–6, 409–10).) 2 “[W]hen a claimant submits evidence for the first time to the Appeals Council, which 3 considers that evidence in denying review of the ALJ’s decision, the new evidence is part of the 4 administrative record, which the district court must consider in determining whether the 5 Commissioner’s decision is supported by substantial evidence.” Brewes, 682 F.3d at 1159-60. 6 Although this court may recommend remand for consideration of new evidence, remand is proper 7 only where the evidence is material and “there is good cause for the failure to incorporate such 8 evidence into the record at prior proceeding.” 42 U.S.C. § 405(g). Evidence is considered 9 sufficiently material to require remand, “only where there is a reasonable possibility that 10 the new evidence would have changed the outcome of the [Commissioner's] determination had it 11 been before him.” Booz v. Secretary of Health & Human Servs., 734 F.2d 1378, 1380 (9th Cir. 12 1984) (emphasis in original) (citations omitted); see also 42 U.S.C. § 405(g). 13 demonstrate good cause, the plaintiff must demonstrate that the new evidence was unavailable 14 earlier. Mayes v. Massanari, 276 F.3d 453, 463 (9th Cir. 2001) (citing Key v. Heckler, 754 F.2d 15 1545, 1551 (9th Cir. 1985) (“If new information surfaces after the Secretary's final decision and 16 the claimant could not have obtained that evidence at the time of the administrative proceeding, 17 the good cause requirement is satisfied”); Sanchez v. Secretary of Health & Human Servs., 812 18 F.2d 509, 512 (9th Cir. 1987) (holding that the applicant lacked good cause to remand for 19 consideration of two psychological examinations prepared after the applicant's disability 20 determination when his attorney knew of the applicant's memory loss but failed to explain why 21 the applicant had not requested a mental evaluation or pressed his mental impairment claim at the 22 hearing before the ALJ)). Further, to 23 The new evidence plaintiff submitted to the Appeals Council is a two-page, check-box 24 form submitted by plaintiff’s treating physician, Dr. Smith, entitled: “Medical Source Statement 25 of Ability to Do Work Related Activities (physical).” (AR 409–410.) The medical source 26 statement covers the period of June 2013 to June 10, 2015. (Id.) Plaintiff has not shown that the 27 new evidence is sufficiently material to require remand. The information contained in the check- 28 box form, such as plaintiff’s complaints of chronic back, hip, and leg pain, was fully addressed by 7 1 the ALJ in his decision. Importantly, the ALJ gave specific and legitimate reasons for finding 2 plaintiff’s complaints not fully credible, therefore, it is unlikely the ALJ’s decision would have 3 been affected by the “new evidence.” Further, plaintiff offers no explanation as to why he did not 4 seek to have Dr. Smith’s medical source statement admitted into evidence before his hearing with 5 the ALJ. Certainly the information contained in the medical source statement should have been 6 available to plaintiff before his hearing with the ALJ, as it specifically relates to a time period 7 well before the hearing. The good cause requirement is not met “by merely obtaining a more 8 favorable report once his or her claim has been denied.” Mayes, 276 F.3d at 463. Thus, plaintiff 9 has not shown good cause exists for failing to present the medical evidence sooner. Accordingly, 10 the Appeal Council properly considered the “new evidence” presented and remand is not 11 warranted. 12 D. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 The ALJ’s error in addressing the State agency medical consultants’ opinions was harmless. Second, plaintiff argues that the ALJ committed reversible error by failing to fully address and distinguish the opinions of the State agency medical consultants and consultative examiner. (ECF No. 9 at 14–17.) Defendants assert that the ALJ properly addressed the medical opinions of record. (ECF No. 15 at 6–11.) The State agency medical consultants examined plaintiff on September 30, 2013 and March 11, 2014, respectively. (AR at 56-67, 70–82.) The ALJ described the doctors’ findings as follows: State agency doctors at the initial and reconsideration level opined that the claimant could perform light work and occasionally climb ramps and stairs, balance, stoop and crawl and never climb ladders, ropes and scaffolds and crouch. The claimant should avoid all exposure to hazards (Exhibits 1A/4A). These opinions are given significant weight, as they are consistent with the medical records that have shown mild findings. In addition, the claimant is able to go shopping and drive a car every other day. (Hearing testimony; Exhibit 2F/Pages 31-32; 35). Therefore, this opinion is given significant weight. (Id. at 21.) 27 Plaintiff argues that the ALJ improperly represented that the State agency doctors 28 restricted plaintiff to a light exertional level, when in actuality they opined that he could perform 8 1 sedentary work. (ECF No. 9 at 14–15.) It is clear upon review of the State agency doctors’ 2 reports that they did in fact opine that plaintiff had the RFC to perform sedentary work. (AR 61– 3 64, 78–79.) However, any error the ALJ committed was harmless. 4 Courts in the Ninth Circuit “will not reverse the decision of the ALJ for harmless error, 5 which exists when it is clear from the record that the ALJ’s error was inconsequential to the 6 ultimate nondisability determination.” Tommasetti, 533 F.3d at 1038. Consistent with the court’s 7 duty to review the ALJ’s decision for substantial evidence, the court must exercise caution when 8 relying on the harmless error doctrine. See Stout, 454 F.3d at 1054. Only where a reviewing 9 court can “confidently conclude” that no reasonable ALJ would have reached a different 10 determination is the ALJ’s error is harmless. Robbins, 466 F.3d at 885. 11 Here, the ALJ asked the VE whether a person of plaintiff’s age, education, and RFC 12 would be able to return to plaintiff’s past relevant work at either a light or sedentary exertional 13 level. (AR 50–51.) The vocational expert responded that plaintiff could perform past work at 14 either exertional level. (Id.) The ALJ relied on the vocational expert’s testimony in finding 15 plaintiff not disabled. (Id. at 22.) “If a vocational expert’s hypothetical does not reflect all of the 16 claimant’s limitations, then the expert’s testimony has no evidentiary value to support a finding 17 that a claimant can perform jobs in the national economy.” Matthews v. Shalala, 10 F.3d 678, 18 681 (9th Cir. 1993). Here, because the VE specifically testified that plaintiff could perform past 19 relevant work at a sedentary exertional level, any error committed by the ALJ in determining 20 plaintiff’s RFC is harmless. 21 E. The ALJ afforded proper weight to the consultative examiner’s opinion. 22 Third, plaintiff argues that the ALJ erred in rejecting the consultative examiner, Dr. 23 Mumford’s, opinion in relation to plaintiff’s limited ability to sit. (ECF No. 9 at 15.) The ALJ 24 found that Dr. Mumford opined that plaintiff could sit four hours in an eight-hour day and 25 accorded this opinion little weight. (AR at 21.) Plaintiff contends that Dr. Mumford’s opinion 26 should have been given more weight than other medical opinions. 27 Within the administrative record, an ALJ may encounter medical opinions from three 28 types of physicians: treating, examining, and nonexamining. Garrison, 759 F.3d at 1012. As a 9 1 general rule, the greatest weight is given to a treating physician’s opinion, while the opinion of an 2 examining physician is given more weight than that of a nonexamining physician. Id. Moreover, 3 a treating physician’s opinion that is “well-supported by medically acceptable clinical and 4 laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [a 5 claimant’s] case record,” is entitled to controlling weight. 6 416.927(c)(2); Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th Cir. 2014). The ALJ is not, however, 7 bound by the conclusions of any particular physician. The ALJ can reject a treating or examining 8 physician’s uncontradicted opinion for “clear and convincing” reasons, or their contradicted 9 opinion for “specific and legitimate reasons,” supported by substantial evidence. 10 20 C.F.R. §§ 404.1527(c)(2), Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995). 11 An ALJ provides specific and legitimate reasons by articulating a detailed and thorough 12 summary of the facts and conflicting medical evidence, stating an interpretation thereof, and 13 making findings. Garrison, 759 F.3d at 1012. In supporting a decision to accept certain medical 14 opinions over others, the ALJ may cite contradiction, inconsistency with the evidence, and 15 consistency of the accepted opinions with the administrative record as a whole. See Tommasetti 16 v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 17 1190, 1195 (9th Cir. 2004). However, “[t]he opinion of a nonexamining physician cannot by 18 itself constitute substantial evidence that justifies the rejection of the opinion of either an 19 examining physician or a treating physician.” Lester, 81 F.3d at 831. 20 Dr. Mumford was not a treating physician; he examined plaintiff on just one occasion. 21 (AR 374–380.) An examining physician’s opinion is not entitled to controlling weight. See 20 22 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). Further, plaintiff ignores the discretion ALJs enjoy in 23 weighing medical opinions; although an examining physician’s opinion is generally given more 24 weight than that of a nonexamining physician, the rule is not ironclad. “An ALJ may reject the 25 testimony of an examining, but nontreating physician, in favor of a nonexamining, nontreating 26 physician when he [or she] gives specific, legitimate reasons for doing so, and those reasons are 27 supported by substantial record evidence.” Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1985). 28 10 1 In short, Dr. Mumford’s status as an examining physician, alone, does not mean that his opinion 2 should have been given more weight than the other opinion evidence in the file. 3 F. The ALJ permissibly relied on the VE’s testimony in determining plaintiff’s RFC. 4 Next, plaintiff contends that there is a conflict between his assessed RFC and the DOT’s 5 descriptions of the job the VE said he could perform. (ECF No. 9 at 18–20.) Because the ALJ 6 did not inquire into the conflict, and the VE did not explain the basis for her conclusion, the 7 ALJ’s reliance on the VE’s testimony constitutes reversible error. (Id.) In opposition, defendant 8 maintains that the ALJ permissibly relied on the VE’s testimony to determine that plaintiff could 9 perform his past relevant work. (ECF No. 15 at 11–14.) 10 Pursuant to Social Security Ruling1 (“SSR”) 00-4p, the DOT is the Social Security 11 Administration’s primary source of information regarding the requirements of work in the 12 national economy. 13 however, ALJs will also rely on VEs, who are able to provide additional evidence to help 14 “resolve complex vocational issues.” Id. VE testimony “generally should be consistent with the 15 occupational information supplied by the DOT,” but, where a conflict exists, neither the DOT nor 16 the VE evidence “automatically ‘trumps.’” Id. Instead, the ALJ has an affirmative duty to 17 resolve the conflict by soliciting “a reasonable explanation” from the VE, and, in light of that 18 explanation, determining whether reliance on the VE testimony rather than the DOT is warranted. 19 Id.; see also Massachi v. Astrue, 486 F.3d 1149, 1152–54 (9th Cir. 2007). Where the ALJ fails to 20 follow this procedural requirement, the correct course is to remand for further proceedings, unless 21 the ALJ’s error was harmless. See Massachi, 486 F.3d at 1154, 1154 n.19. 2000 WL 1898704, at *2 (Dec. 4, 2000). In administrative hearings, 22 The DOT does not discuss the availability of a sit/stand option for any of its occupations, 23 McLaughlin v. Colvin, No. CV 14-9908-PLA, 2015 WL 5567755, at *4 (C.D. Cal. Sept. 22, 24 2015), and courts within this circuit are split on the effect of its silence, Henderson v. Colvin, No. 25 1:14-cv-01161-LJO-SKO, 2016 WL 145571, at *11 (E.D. Cal. Jan. 12, 2016). Some courts take 26 27 28 “Social Security Rulings reflect the official interpretation of the Social Security Administration and are entitled to some deference as long as they are consistent with the Social Security Act and regulations.” Massachi, 486 F.3d at 1152 n.6 (internal quotation omitted). 1 11 1 the view that a conflict requires two opposing facts, and that, where the DOT is silent as to a 2 particular requirement, VE testimony supplements the more general DOT descriptions. See, e.g., 3 Cortez v. Colvin, No. 2:13–cv–01496–APG–VCF, 2014 WL 3734308, at *2 (D. Nev. July 28, 4 2014). Others reach the opposite conclusion, either due to the particular facts of the case, see, 5 e.g., McLaughlin, 2015 WL 5567755, at *5 (finding a conflict with the DOT where the claimant 6 was capable of just sedentary work, required a sit/stand option as needed, and used a cane to stand 7 or walk); McCabe v. Colvin, No. 3:14–cv–00396–LRH, 2015 WL 4740509, at *12 (D. Nev. Aug. 8 10, 2015) (finding a conflict between a telephone quotation clerk job, described in the DOT as 9 sedentary work, and the need for a sit/stand option), or as a more general principle, see 10 Valenzuela v. Astrue, No. C 08–04001 WHA, 2009 WL 1537876, at *4 (N.D. Cal. June 2, 2009) 11 (“[A] conflict may exist even if VE testimony did not directly contradict DOT information. Any 12 potential inconsistency . . . is sufficient to warrant inquiry.”). 13 Defendant argues that the absence of discussion of a sit/stand option is exactly why ALJ’s 14 rely on VEs to supplement this information. (ECF No. 15 at 11.) Plaintiff argues that, in spite of 15 this, the ALJ never asked the VE about any potential conflicts, so reliance upon the VE is 16 insufficient. However, at the hearing, plaintiff’s counsel failed to questioned the VE about the 17 supposed conflict regarding the sit/stand option. (AR 50–52.) “[W]hen claimants are represented 18 by counsel, they must raise all issues and evidence at their administrative hearings in order to 19 preserve them on appeal.” See Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999). If 20 plaintiff’s counsel believed a conflict existed, he had the opportunity to ask the VE about it at the 21 administrative hearing, and failed to do so. Accordingly, it was reasonable for the ALJ to rely on 22 the VE’s experience as well as the information provided regarding past relevant work available 23 with the sit/stand option to explain the basis for any potential discrepancy between the sit/stand 24 option and the DOT description of the jobs identified. If there was a conflict, and therefore an 25 error, it was harmless because the vocational expert provided sufficient support to justify 26 deviation from the DOT. Massachi, at 1154, n. 19. 27 28 12 1 G. The ALJ permissibly discounted plaintiff’s subjective testimony. 2 Finally, plaintiff argues that the ALJ erred in failing to properly evaluate his subjective 3 complaints. (ECF No. 9 at 20–23.) The ALJ articulated five main reasons for discounting 4 plaintiff’s subjective complaints: (1) the objective evidence in the record did not support 5 plaintiff’s complaints; (2) plaintiff’s impairments were well controlled with treatment; (3) the 6 conservative nature of his treatment; (4) plaintiff’s non-compliance with doctor’s orders regarding 7 diet, taking medication, and seeing a specialist; and (5) extent of plaintiff’s daily activities. (See 8 AR 16–21). Specifically, plaintiff disagrees with the ALJ’s finding that plaintiff had been non- 9 compliant with his prescribed medication. (ECF No. 9 at 20–23.) 10 Plaintiff’s failure to follow the prescribed course of treatment supports the ALJ’s finding 11 that he was not fully credible. The record demonstrates that plaintiff failed to follow doctor’s 12 orders on numerous occasions. (See e.g., AR 321, 398.) Further, plaintiff only argues that one of 13 the five reasons given by the ALJ in relation to plaintiff’s credibility was not supported by 14 substantial evidence. Thus, even if this court found that the ALJ committed error as to this factor, 15 any error is harmless as it “does not negate the validity of the ALJ’s ultimate conclusion that 16 [plaintiff] was not credible.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th 17 Cir. 2004). 18 evidence, remand is not warranted. Accordingly, because the ALJ’s credibility finding is supported by substantial IV. 19 20 21 22 CONCLUSION For the reasons articulated above, the court recommends that plaintiff’s motion for remand (ECF No. 9) be denied and that defendant’s cross-motion to affirm (ECF No. 15) be granted. 1. Pursuant to 28 U.S.C. § 636(b)(1)(c) and Local Rule IB 3-2, the parties may file 23 specific written objections to this Report and Recommendation within fourteen days of receipt. 24 These objections should be entitled “Objections to Magistrate Judge’s Report and 25 Recommendation” and should be accompanied by points and authorities for consideration by the 26 District Court. 27 28 13 1 2. This Report and Recommendation is not an appealable order and any notice of 2 appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court’s 3 judgment. V. 4 5 6 7 8 9 10 11 RECOMMENDATION IT IS THEREFORE RECOMMENDED that plaintiff’s motion for remand or reversal (ECF No. 9) be DENIED and defendant’s cross-motion to affirm (ECF No. 15) be GRANTED; IT IS FURTHER RECOMMENDED that the Clerk ENTER JUDGMENT and close this case. DATED: August 1, 2017. ______________________________________ UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14

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