Black v. Commissioner Social Security Administration
Filing
17
OPINION AND ORDER. The Commissioners decision is AFFIRMED. Signed on 12/7/11 by Judge Michael W. Mosman. (dls)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
ROXANNE C. BLACK,
Plaintiff,
No. 3:10-cv-06409-MO
v.
OPINION AND ORDER
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
MOSMAN, J.,
Roxanne C. Black challenges the Commissioner’s decision denying her claim for
Supplemental Security Income (“SSI”) disability benefits. I have jurisdiction under
42 U.S.C. § 405(g). For the reasons stated below, I affirm the Commissioner’s decision.
PROCEDURAL BACKGROUND
On February 25, 2008, Ms. Black protectively filed for SSI under Title XVI of the Social
Security Act. AR 11.1 This application was denied initially on July 18, 2008, and upon
reconsideration on October 16, 2008. Id. An administrative law judge (“ALJ”) held a hearing on
July 21, 2010. Id. On August 9, 2010, the ALJ issued his decision denying Ms. Black’s
1
Citations to the Administrative Record (“AR”) refer to the indicated pages in the official transcript of the
Administrative Record, filed with the Commissioner's Answer on April 26, 2011 [12].
1 – OPINION AND ORDER
application. AR 20. The Appeals Council denied review on November 17, 2010, making the
ALJ’s decision the final decision of the Commissioner. AR 1. Ms. Black timely appealed on
December 10, 2010.
THE ALJ’S FINDINGS
The ALJ made his decision based upon the five-step sequential process established by the
Commissioner. Bowen v. Yuckert, 482 U.S. 137, 140–41 (1987); see also 20 C.F.R. § 416.920
(establishing the five-step evaluative process for SSI claims). At Step One the ALJ found that
Ms. Black had not engaged in substantial gainful activity since February 25, 2008, the date of the
application. AR 13. At Step Two the ALJ found that Ms. Black suffered from “insulin dependant
[sic] diabetes mellitus; sleep apnea; obesity; migraine headaches; fibromyalgia; lumbar scoliosis;
depression; anxiety; learning disorder; attention deficit disorder; and dependant [sic] personality
disorder.” Id. Continuing to Step Three, the ALJ found that the combination of impairments does
not meet or equal a disorder listed in the Commissioner’s regulations. AR 13-15.
The ALJ next evaluated Ms. Black’s residual functional capacity (“RFC”), finding that
she could perform light work, as defined in 20 C.F.R. § 416.967(b), with the following limits:
[D]ue to chronic pain and fatigue attributable to her severe physical impairments,
she can perform tasks that involve no more than 6 hours of standing/walking, or
more than 6 hours of sitting in an 8-hour workday. Such tasks may involve no
more than occasional stooping, kneeling, crouching, or crawling. Due to migraine
headaches, the claimant should avoid concentrated exposure to noisy work
environments. Due to cognitive and emotional limitations attributable to her
mental impairments, she can perform tasks that involve simple instructions that
are equivalent to unskilled work, . . . that involve only occasional contact with
co-workers or the general public.
AR 15-16. At Step Four the ALJ found that she had no past relevant work experience. AR 19.
The ALJ continued to Step Five, relying upon testimony from a vocational expert to find
that Ms. Black could perform the requirements of representative occupations such as assembler,
small products, meter reader, garment sorter, and assembly machine tender, and that these jobs
2 – OPINION AND ORDER
existed in significant numbers in the national economy. AR 20. Based on the Step Five finding,
the ALJ denied benefits. Id.
STANDARD OF REVIEW
I review the Commissioner’s decision to ensure the Commissioner applied proper legal
standards and that the ALJ’s findings are supported by substantial evidence in the record.
42 U.S.C. § 405(g); Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009).
“‘Substantial evidence’ means more than a mere scintilla, but less than a preponderance; it is
such relevant evidence as a reasonable person might accept as adequate to support a conclusion.”
Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Robbins v. Soc. Sec. Admin.,
466 F.3d 880, 882 (9th Cir. 2006)). The Commissioner’s decision must be upheld if it is a
rational interpretation of the evidence, even if there are other possible rational interpretations.
Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The reviewing court may not substitute
its judgment for that of the Commissioner. Robbins, 466 F.3d at 882. Finally, “the court will not
reverse an ALJ’s decision for harmless error, which exists when it is clear from the record that
the ALJ’s error was inconsequential to the ultimate nondisability determination.” Tommasetti v.
Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citation omitted).
DISCUSSION
Ms. Black presents four assignments of error: (1) The ALJ erred because he did not
properly evaluate the medical evidence regarding Ms. Black’s physical and mental impairments;
(2) the ALJ erred because he did not properly evaluate Ms. Black’s credibility; (3) the ALJ erred
because he did not properly evaluate the credibility of lay witnesses; and (4) because of the
errors in evaluating the medical evidence and the credibility of witnesses, the ALJ’s RFC finding
failed to account for all of Ms. Black’s limitations and, as a result, the vocational expert
testimony was defective.
3 – OPINION AND ORDER
I.
The Medical Evidence
A.
Physical Impairments
Ms. Black challenges the ALJ’s consideration of evidence from an examining doctor, Dr.
Mitchell Sally, and a treating doctor, Dr. Mark Olson. If a doctor’s opinion “is not contradicted
by another doctor, it may be rejected only for ‘clear and convincing’ reasons.” Lester v. Chater,
81 F.3d 821, 830 (9th Cir. 1995) (citation omitted). If the doctor’s opinion is contradicted by
another doctor, the Commissioner must give “specific and legitimate reasons” that are
“supported by substantial evidence in the record” before rejecting it. Id. “The opinion of a
nonexamining physician cannot by itself constitute substantial evidence that justifies the
rejection of the opinion of either an examining physician or a treating physician.” Id. at 831.
As the ALJ correctly pointed out (AR 17), Dr. Sally’s opinion was contradicted by at
least one doctor, so the ALJ was required to give only specific and legitimate reasons that are
supported by substantial evidence in the record. Dr. Sally opined that Ms. Black could
stand/walk for a total of four hours in an eight-hour workday, and could sit for four hours in an
eight-hour workday. AR 359. He further opined that she could lift or carry 5-10 pounds
frequently, and 5-10 pounds occasionally, and that postural activities such as bending, stooping,
and crouching should be performed only occasionally. Id. In rejecting Dr. Sally’s opinion and
adopting a less restrictive RFC, the ALJ discussed how the claimed severity of symptoms was
not consistent with Dr. Sally’s own objective findings or her own reports of daily living. AR 17.
For example, the ALJ noted that Dr. Sally reported that in his 2008 examination, despite
subjective complaints of pain of “9” on a scale of “10,” Ms. Black did not appear outwardly
distressed, she was able to transfer from the chair to the examination table “easily,” and although
she removed her shoes with some difficulty, she was able to sit “comfortably” and walk “without
difficulty.” Id. Further, the ALJ noted that Ms. Black demonstrated the ability to grip and hold
4 – OPINION AND ORDER
objects securely, as well as grasp and manipulate both large and small objects, despite the fact
that there was “mild evidence of poor effort” on Ms. Black’s part. Id. Dr. Sally’s examination
notes also reveal full strength in her extremities, a normal gait, and “a mild curvature of the
lumbar spine . . . that is mild at the greatest degree.” AR 358-59. The ALJ provided sufficient
explanation, supported by substantial evidence, for rejecting Dr. Sally’s opinion as unsupported
by, and in conflict with, objective medical evidence. See Tonapetyan v. Halter, 242 F.3d 1144,
1149 (9th Cir. 2001).
The ALJ provided additional specific and legitimate reasons. The ALJ found that “greater
weight” was owed to the subsequent assessments provided by state agency medical consultants
Drs. Richard Alley and Martin Kehrli. AR 17. He found this because the assessments of these
physicians comported with the “benign objective medical findings” as well as Ms. Black’s
“fairly intact activities of daily living” found elsewhere in the record. Id. While the opinion of a
nonexamining doctor cannot by itself constitute substantial evidence that justifies the rejection of
the opinion of either an examining or treating physician, it can be one of other factors considered
by the ALJ in making his determination and constitutes “substantial evidence when it is
consistent with other independent evidence in the record.” Tonapetyan, 242 F.3d at 1149; see
also Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999). I agree that the
two state consultants provided opinions consistent with other evidence in the record, including
the medical evidence and Ms. Black’s reported daily activities. Among other things, Ms. Black
reported that she walks and drives, takes care of her husband and infant son, is able to prepare
“quick foods and simple dishes” several nights a week, and does a variety of household chores
such as laundry, dishes, cleaning the bathroom, and pulling weeds. AR 171-72. Probably most
importantly, she estimated she could lift “20 pounds maybe,” and that her ability to lift, squat,
5 – OPINION AND ORDER
stand, and sit were not impaired at all. AR 175. Because the ALJ gave several specific and
legitimate reasons that were supported by the record, the ALJ did not err by discrediting Dr.
Sally’s opinion.
Ms. Black also assigns error to the ALJ’s rejection of Dr. Olson’s April, 2010, one-page
letter that identified by name Ms. Black’s medical problems, followed by one line that she is
“unable to undertake any gainful employment” and that her medical conditions “are permanent
in nature.” Dr. Olson’s conclusion is contradicted by the opinions of Drs. Sally, Kehrli, and
Alley, who opined that Ms. Black was capable of performing some level of light work. AR 359,
366, 393. The ALJ cited to several reasons for rejecting Dr. Olson’s conclusion. First, he noted
that the assessment was not accompanied by any objective medical findings. AR 18. Second, he
noted that “[j]ust over a month [after writing the aforementioned letter], Dr. Olson noted that
despite past complaints of pain, the claimant appeared ‘quite happy and comfortable’ and was
looking forward to playing basketball for Special Olympics.”2 Id. Third, he noted that she had a
poor history of compliance with her diabetes medication, which had prompted her diabetes case
manager to withdraw from her case. Id. Fourth, he noted that the conclusion appeared unjustified
in light of Dr. Sally’s findings of poor effort and benign objective findings. Id. And finally, he
noted that he rejected the opinion because the statement was a conclusory statement about
disability that is reserved for the Commissioner, not one to be decided by a physician, treating or
otherwise. Id.
Ms. Black does not argue that the ALJ failed to provide specific reasons for not crediting
Dr. Olson’s opinion, but argues instead that the reasons given were not legitimate. She asserts
2
The ALJ’s timeline of events here is incorrect but even plaintiff does not argue that this error matters. The ALJ
stated that the visit which prompted these remarks was “[j]ust over a month later,” although the medical records
indicate that the visit actually occurred in November 2009, approximately five months prior to the letter written by
Dr. Olson. The error is harmless because it was inconsequential to the ultimate result and doesn’t undercut the ALJ’s
basic point, i.e. that Dr. Olson’s conclusion was inconsistent with other evidence.
6 – OPINION AND ORDER
legal error with respect to the ALJ’s use of “poor effort” and “benign objective findings” as
evidenced in Dr. Sally’s report as reasons to reject Dr. Olson’s opinion.
Ms. Black’s argument is not well taken because even if these specific reasons are not
legitimate, the ALJ specifically relied on several other reasons to support his rejection of the
opinion. An ALJ may “discredit treating physicians’ opinions that are conclusory, brief, and
unsupported by the record as a whole, or by objective medical findings.” Batson v. Comm'r of
Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (citation omitted). As noted by the ALJ,
Dr. Olson’s April 2010 letter was indeed not accompanied by any objective medical findings.
The treatment notes from the visit which prompted the letter do not identify objective medical
findings that might be the basis for Dr. Olson’s ultimate conclusion (AR 495), and there is no
indication of objective medical findings in the letter itself, which contained no other information
aside from a list of Ms. Black’s physical and mental impairments (which the ALJ agreed with in
determining her severe impairments under Step Two). AR 520. Also, as noted by the ALJ, the
conclusion was not supported by Dr. Olson’s own treatment notes which indicated she would
present with less severe symptoms and complaints when seeking medical clearance to participate
in basketball games. AR 18. Treatment notes from an October, 2009 visit indicated that she was
“exquisitely tender” everywhere she was touched and that she came into the room in a wheel
chair, but an addendum from Dr. Olson added after the visit noted that “[o]f interest, [Ms. Black]
came to urgent care with ill child the very next day and she moved freely, was smiling and
seemed in no discumfort [sic] at all.” AR 404 (emphasis added). This evidence provides a
sufficient reason to reject Dr. Olson’s conclusion.
In any event, while a medical opinion regarding the ability to work is potentially useful, a
patient’s ability to work is a legal issue reserved to the Commissioner and the ALJ was therefore
7 – OPINION AND ORDER
not in any way bound by the conclusion Dr. Olson reached. See McLeod v. Astrue, 640 F.3d 881,
885 (9th Cir. 2011). For that reason too, rejection of Dr. Olson’s conclusion was appropriate.
Because the ALJ provided specific and legitimate reasons for rejecting the opinions of
these physicians, the ALJ did not err.
B.
Mental Impairments
Ms. Black also asserts error in the ALJ’s crediting and weighing of evidence from
examining psychologists, David A. Freed and Paul Kruger, and state agency nonexamining
psychological consultants Dorothy Anderson and Sandra Lundblad.3 The ALJ’s RFC finding
related to memory impairments was as follows: “Due to cognitive and emotional limitations
attributable to her mental impairments, she can perform tasks that involve simple instructions
that are equivalent to unskilled work, . . . that involve only occasional contact with co-workers or
the general public.” AR 16.
Ms. Black claims that the ALJ selectively credited the evidence from examining
psychologist, Dr. Freed.4 In November of 2006, Ms. Black was referred to Dr. Freed for a
learning disability evaluation. AR 223. Ms. Black asserts that based upon the psychological
testing performed, Dr. Freed opined that Ms. Black “possibly suffered from learning disabilities
related to reading and writing; memory performance was ‘moderately impaired;’ formal and
informal testing demonstrated impairments in attention and concentration.” (Pl.’s Br. [15] 6)
(emphasis added). Ms. Black asserts that the ALJ erred because the RFC did not comport with
Dr. Freed’s findings, and specifically that it did not “include a specific reading functional
3
Although Ms. Black also asserts initially that “[t]he ALJ failed to properly evaluate the evidence from … the
treating psychologist, Catherine de Campos, Ph.D.,” she fails to offer a single argument as to why this is so and I
reject this argument on the merits in any event.
4
Ms. Black also claims that “the ALJ did not even acknowledge or consider the evidence from Dr. Freed.” The ALJ,
however, specifically discussed Dr. Freed’s clinical diagnoses of Ms. Black (AR 18); he also specifically
acknowledged that he gave great weight to the assessments by state agency consultants who “reviewed all available
evidence,” including Dr. Freed’s November 2006 report.
8 – OPINION AND ORDER
limitation, a specific memory limitation, and or a specific attention and concentration limitation.”
(Id. at 7).
State nonexamining psychological consultants Drs. Anderson and Lundblad reviewed the
medical evidence in July and October, 2008, respectively. AR 374–391, 392. Dr. Anderson
opined that Ms. Black could “understand[], remember[] and follow[] short, simple and repetitive
tasks in a structured environment” that involved only occasional contact with co-workers or the
general public. Dr. Lundblad affirmed this finding. AR 392. The ALJ may rely on the opinion of
a nonexamining doctor to translate mental limitations into concrete restrictions in the RFC
assessment. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008); Andrews v.
Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995). This does not constitute a rejection of Dr. Freed’s
findings. Dr. Freed’s assessment of the possibility of learning disabilities involving reading and
writing, as well as moderate mental and attention/concentration impairments, are not specific
workplace limitations. Dr. Anderson’s report provides the missing analysis—Dr. Anderson
acknowledged that Ms. Black exhibited “some difficulty w[ith] attention and concentration,” but
that she was “capable of understanding, remembering and following short, simple and repetitive
tasks in a structured environment.” AR 390. Therefore, Dr. Freed’s opinion was sufficiently
accounted for by the ALJ.
Ms. Black also takes issue with the ALJ’s handling of Dr. Kruger’s July 2008
psychological evaluation. She asserts that although the ALJ said he accorded “great weight” to
Dr. Kruger’s opinion, he “selectively accorded weight to Dr. Kruger’s opinion that was
consistent with the ALJ’s pre-determined conclusion that Claimant was not disable [sic].” (Pl.’s
Br. [15] 9). She also argues that Dr. Kruger opined a functional limitation related to “verbal
information processing” which was not taken into account in the RFC assessment. She further
9 – OPINION AND ORDER
asserts that the jobs identified by the vocational expert included training requirements
incompatible with this functional limitation.
After reviewing Dr. Kruger’s report and the ALJ’s analysis, I find that the ALJ accorded
adequate weight to Dr. Kruger’s assessment. Dr. Kruger opined that Ms. Black was capable of
learning and recalling “simple, brief, limited, hands-on tasks” within an appropriate time,
although it would be difficult for her to add details to those tasks and be able to recall the
information at a later date. AR 353. This information was accounted for in the RFC which
provided that Ms. Black “can perform tasks that involve simple instructions that are equivalent to
unskilled work.” Accordingly I reject Ms. Black’s argument that the ALJ accorded only selective
weight to Dr. Kruger’s assessment.
As to her second argument, Dr. Kruger briefly mentions in the second to last paragraph of
his “concluding remarks” that if Ms. Black “were performing various simple, repetitive tasks and
was required to add details to those tasks, particularly if those details were verbal, this most
likely would be challenging for her.” AR 353 (emphasis added). However, Dr. Kruger’s brief
statement in this regard, with no objective evidence in the medical record to support it, does not
appear to be a diagnosis or a functional limitation on Ms. Black’s abilities. Ms. Black does not
suggest any specific functional limitation grounded in this statement.
Even if Dr. Kruger’s statement did give rise to a specific limitation, Ms. Black has failed
to offer any evidence as to why failing to include a “verbal information processing” limitation in
her RFC renders the vocational expert’s determination of possible jobs incompatible with Dr.
Kruger’s testimony. Ms. Black seems to be alleging that the existence of such a limitation would
render any individual unable to complete the training periods for performing the unskilled jobs
that were identified at Step Five. She fails to offer a single reason for her conclusion, either
10 – OPINION AND ORDER
generally or in regards to why she specifically would be unable to complete the training periods
for such jobs. Accordingly, I find that the ALJ properly accounted for Dr. Kruger’s assessment.
Ms. Black next argues that the ALJ erred in selectively crediting the opinion of the state
agency non-examining psychological consultants, Drs. Anderson and Lundblad, by only
adopting some of the functional limitations they assessed. Specifically, she argues that Ms.
Black’s RFC failed to include a “structured environment” or “predictable work place routine”
limitation. As the Commissioner correctly points out, while the RFC does not include the
specific words of “a predictable workplace routine” or “a structured environment,” the ALJ did
include such a restriction in his hypothetical to the vocational expert. Specifically, the ALJ’s
hypothetical included occupations “that have short, simple, repetitive tasks in a structured
environment and by that, they define that as a predictable workplace routine.” AR 83 (emphasis
added). Thus, the vocational expert’s findings fully incorporated the limitations opined by Dr.
Anderson related to a predictable workplace routine. Any error in not mentioning the
structured/predictable environment limitation in the ALJ’s opinion is therefore harmless. See
Tommasetti, 533 F.3d at 1038.
II.
Ms. Black’s Credibility
Ms. Black argues that the ALJ improperly determined she was not entirely credible based
on the RFC, rather than first determining her credibility and then determining the RFC. Other
than the fact that the ALJ stated his conclusion regarding credibility before providing an
explanation, Ms. Black offers no evidence in support of this “cart before the horse” argument.
There is nothing wrong with an ALJ stating a conclusion and then explaining it, as opposed to
providing explanation and then reaching a conclusion. Therefore I reject this argument.
11 – OPINION AND ORDER
She also argues the ALJ erred in not stating specifically why she was not fully credible.
This argument fails as well. Once a claimant shows an underlying impairment which may
“reasonably be expected to produce the pain or other symptoms alleged,” absent a finding of
malingering, the ALJ must provide “clear and convincing” reasons for finding a claimant not
credible. Lingenfelter, 504 F.3d at 1036 (citing Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.
1996)). The ALJ’s credibility findings must be “sufficiently specific to permit the reviewing
court to conclude that the ALJ did not arbitrarily discredit the claimant’s testimony.” Orteza v.
Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th
Cir. 1991)). The ALJ may consider ordinary credibility factors, objective medical evidence and
the claimant’s treatment history, as well as the claimant’s daily activities, work record, and
observations of physicians and third parties with personal knowledge of the claimant’s functional
limitations. Smolen, 80 F.3d at 1284.
The ALJ made specific findings regarding Ms. Black’s credibility. For example, the ALJ
found Ms. Black’s hearing testimony “not entirely consistent” with her previous reports to her
doctors regarding the reasons she was not employed. AR 17. She testified that “[t]he main reason
why [my previous jobs] ended is because I was not fast enough. I couldn’t keep up with
productivity” (AR 57); however, she told Dr. Sally in 2008 that “[s]he stopped working because
she wanted to get pregnant and because of her back pain.” AR 356. In addition, she told Dr.
Kruger in 2008 that in the next four to five years her interest was to “stay at home and be a mom,
and have more kids.” Id. The ALJ found the evidence regarding her plans of motherhood
“suggest[ed] that despite her pain symptoms, the claimant considers herself physically capable of
both child birth and child rearing.” Id. While plaintiff makes the conclusory argument that this
reason was “simply silly,” I find it sufficient. Plaintiff claimed she is unable to work due to
12 – OPINION AND ORDER
debilitating pain and, every other day, unable to do anything but lie down due to migraines. AR
61-62. Those claims are not consistent with a plan to not work in order to have more children.
These claims are also not consistent with her reported activities of daily living and the objective
medical evidence that shows that she is capable of light work, as discussed above.
In any event, where an ALJ provides some reason for discrediting testimony but that
reason alone is insufficient, the error is harmless as long as there is “substantial evidence
supporting the ALJ’s conclusions on . . . credibility and the error does not negate the validity of
the ALJ’s ultimate [credibility] conclusion.” Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d
1155, 1163 (9th Cir. 2008). In other parts of the ALJ’s decision, the ALJ described Ms. Black’s
reports of daily living, explaining that “she has no problem with personal care,” she “can prepare
simple meals and perform a variety of household chores and yard work, including laundry,
cleaning the bathroom, washing the dishes, and weeding the yard.” AR 14. I find her activities of
daily living provide additional evidence in support of the ALJ’s credibility finding, as do the
findings of several doctors that she is not as debilitated as she claims. Therefore, while I consider
the ALJ’s explanation sufficient here, an error would be harmless in any event.
The ALJ’s credibility determination was based on clear and convincing reasons
supported by specific findings in the record, so he did not err by finding Ms. Black was not
entirely credible.
III.
Lay Witness Testimony by Marvin Black Sr. and Marvin Black Jr.
Ms. Black next argues that the ALJ improperly considered the evidence from lay
witnesses Marvin Black Sr., Ms. Black’s father-in-law, and Marvin Black Jr., Ms. Black’s
husband.
13 – OPINION AND ORDER
An ALJ must take into account lay testimony as to a claimant’s symptoms, unless he
gives germane reasons to discount such evidence. See Strout v. Comm’r of Soc. Sec. Adm’n, 454
F.3d 1050, 1053 (9th Cir. 2006). The ALJ rejected a portion of Mr. Black Sr.’s report—
specifically that Ms. Black “cannot take criticism or direction from people.” AR 18-19. The ALJ
found this to be contrary to medical evidence from Dr. Sally, as well as Ms. Black’s own report.
Id. He did, however, specifically consider Mr. Black Sr.’s report that she has difficulty with
complex tasks, and gave this evidence partial weight. AR 19. Ms. Black argues that the ALJ did
not specifically consider other evidence in the report that supported a disability determination,
such as Mr. Black Sr.’s report that her grandparents help with her baby when she cannot, that she
forgets to take her medications, that she cannot use money because change confuses her, and that
she has a very short memory. Although an ALJ may not selectively read the record, he need not
“discuss evidence that is neither significant nor probative.” Howard v. Barnhart, 341 F.3d 1006,
1012 (9th Cir. 2003). The reason for rejecting one part of Mr. Black Sr.’s testimony was
sufficient and plaintiff has not explained how the ALJ actually discredited the remainder of Mr.
Black Sr.’s testimony, i.e. how the testimony was inconsistent with the RFC the ALJ established.
Accordingly, I reject this argument and find that, to the extent the testimony was discredited, that
decision was adequately explained and supported. To the extent it was not discredited, the ALJ
did not need to discuss why it was not being discredited.
The ALJ gave “partial weight” to Mr. Black Jr.’s testimony, stating that Mr. Black Jr.
“testified that the claimant is extremely emotional and has a hard time comprehending and
following through with instructions. He did not see how the claimant could perform any jobs he
is aware of.” AR 19. I see no error here. The ALJ did indeed give partial weight to Mr. Black
Jr.’s testimony because the ALJ adequately incorporated some work-related limits suggested by
14 – OPINION AND ORDER
Mr. Black Jr.’s testimony. For example, the statement that Ms. Black “has a hard time
comprehending and following through with instructions” is accounted for in the portion of the
RFC which states “due to cognitive and emotional limitations … she is limited to tasks that
involve simple instructions that are equivalent to unskilled work.” AR 16.5 To the extent Mr.
Black Jr. suggested other work-related limitations not reflected by the RFC, I find the ALJ
properly rejected that testimony. The ALJ combined his credibility analysis of Mr. Black Sr.
with that of Mr. Black Jr., and I infer that he partially rejected Mr. Black Jr.’s testimony for the
same valid reasons he rejected the testimony of Mr. Black Sr. (See AR 18) (considering the “lay
witness evidence and testimony offered by Marvin Black, Sr., the claimant’s father-in-law, and
Marvin Black, Jr., the claimant’s husband”).
IV.
Step Five Finding
At Step Five, the ALJ found that Ms. Black could perform the requirements of
representative occupations such as assembler, small products; meter reader; garment sorter; and
assembly machine tender, and that these jobs existed in significant numbers in the national
economy. Ms. Black argues that the ALJ’s Step Five finding is not supported by substantial
evidence because the RFC assessment was deficient for the reasons argued above. As discussed
above, I do not find that the RFC was deficient on any of Ms. Black’s proffered reasons, and
therefore find that the ALJ’s nondisability finding was not in error.
5
Other portions of his testimony fail to provide any specific work-related limitations that the ALJ might have
incorporated into the RFC. For example, plaintiff argues that Mr. Black Jr.’s statement that Ms. Black “doesn’t like
going anywhere alone” was improperly discredited. (Pl.’s Br. [15] 19). Unsurprisingly, plaintiff does not explain
how this testimony might have translated into a RFC limitation.
15 – OPINION AND ORDER
CONCLUSION
For the reasons explained above, the Commissioner’s decision is AFFIRMED.
IT IS SO ORDERED.
DATED this 7th
day of December, 2011.
/s/ Michael W. Mosman ___
MICHAEL W. MOSMAN
United States District Court
16 – OPINION AND ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?