Hernandez v. Colvin

Filing 18

ORDER granting ECF No. 16 Defendant's Motion for Summary Judgment; denying 14 Plaintiff's Motion for Summary Judgment. FILE CLOSESD. Signed by Magistrate Judge John T. Rodgers. (TR, Case Administrator)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF WASHINGTON

8
9
10

SERGIO HERNANDEZ,

No. 4:16-CV-05087-JTR

Plaintiff,

ORDER GRANTING
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT

11
12
13
14
15

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

16
17

BEFORE THE COURT are cross-motions for summary judgment. ECF

18

No. 14, 16. Attorney David L. Lybbert represents Sergio Hernandez (Plaintiff);

19

Special Assistant United States Attorney Joseph J. Langkamer represents the

20

Commissioner of Social Security (Defendant). The parties have consented to

21

proceed before a magistrate judge. ECF No. 6. After reviewing the administrative

22

record and briefs filed by the parties, the Court GRANTS Defendant’s Motion for

23

Summary Judgment and DENIES Plaintiff’s Motion for Summary Judgment.

24

JURISDICTION

25

Plaintiff filed applications for Supplemental Security Income (SSI) and

26

Disability Insurance Benefits (DIB) on August 30, 2012, Tr. 357, alleging

27

disability since September 1, 2009, Tr. 286-299, due to a back injury, a left

28

shoulder injury, a left leg injury, depression, stress, high blood pressure,

ORDER GRANTING DEFENDANT’S MOTION . . . - 1

1

headaches, allergies, high cholesterol, stomach pain, vision problems, and hearing

2

problems in the right ear. Tr. 362. The applications were denied initially and upon

3

reconsideration. Tr. 214-221, 224-228. 1 Administrative Law Judge (ALJ) Jo

4

Hoenninger held a hearing on September 4, 2014 and heard testimony from

5

Plaintiff and vocational expert, Daniel McKinney. Tr. 45-88. The ALJ issued an

6

unfavorable decision on November 26, 2014. Tr. 24-39. The Appeals Council

7

denied review on April 28, 2016. Tr. 1-8. The ALJ’s November 26, 2014 decision

8

became the final decision of the Commissioner, which is appealable to the district

9

court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review

10

on June 17, 2016. ECF No. 1, 4.
STATEMENT OF FACTS

11

The facts of the case are set forth in the administrative hearing transcript, the

12
13

ALJ’s decision, and the briefs of the parties. They are only briefly summarized

14

here.

15

Plaintiff was 46 years old at the alleged date of onset. Tr. 286. The last

16

grade he completed was the tenth in 1980. Tr. 363. His reported work history

17

includes assembler, machine operator, packer/stacker, and thinning/packing. Id.

18
19

1

The ALJ’s decision stated that the August 30, 2012 applications were

20

denied on October 17, 2011. Tr. 24. There was a denial on October 17, 2011;

21

however, it was a denial for prior applications for SSI and SSDI filed on July 28,

22

2011. Tr. 206-213, 317. It does not appear the Plaintiff’s counsel requested that

23

the prior applications be reopened. Tr. 45-88. However, the ALJ considered

24

evidence and made a finding pertaining to the period of time prior to the October

25

17, 2011 denial, Tr. 24-39, essentially reopening the prior application. See Lester

26

v. Chater, 81 F.3d 821, 827 n.3 (9th Cir. 1995) (“where the Commissioner

27

considers ‘on the merits’ the issues of claimant’s disability during the already-

28

adjudicated period,” then “a defacto reopening” will be deemed to have occurred).

ORDER GRANTING DEFENDANT’S MOTION . . . - 2

1

He stated that he last worked on September 1, 2009 and stopped working because

2

of his conditions. Tr. 362.

3
4

STANDARD OF REVIEW
The ALJ is responsible for determining credibility, resolving conflicts in

5

medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035,

6

1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo,

7

deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d

8

1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is

9

not supported by substantial evidence or if it is based on legal error. Tackett v.

10

Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as

11

being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put

12

another way, substantial evidence is such relevant evidence as a reasonable mind

13

might accept as adequate to support a conclusion. Richardson v. Perales, 402

14

U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational

15

interpretation, the court may not substitute its judgment for that of the ALJ.

16

Tackett, 180 F.3d at 1097. If substantial evidence supports the administrative

17

findings, or if conflicting evidence supports a finding of either disability or non-

18

disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d

19

1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision supported by

20

substantial evidence will still be set aside if the proper legal standards were not

21

applied in weighing the evidence and making the decision. Brawner v. Secretary

22

of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988).

23
24

SEQUENTIAL EVALUATION PROCESS
The Commissioner has established a five-step sequential evaluation process

25

for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a),

26

416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one

27

through four, the burden of proof rests upon the claimant to establish a prima facie

28

case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This

ORDER GRANTING DEFENDANT’S MOTION . . . - 3

1

burden is met once the claimant establishes that physical or mental impairments

2

prevent him from engaging in his previous occupations. 20 C.F.R. §§

3

404.1520(a)(4), 416.920(a)(4). If the claimant cannot do his past relevant work,

4

the ALJ proceeds to step five, and the burden shifts to the Commissioner to show

5

that (1) the claimant can make an adjustment to other work, and (2) specific jobs

6

exist in the national economy which the claimant can perform. Batson v. Comm’r

7

of Soc. Sec. Admin., 359 F.3d 1190, 1193-1194 (9th Cir. 2004). If the claimant

8

cannot make an adjustment to other work in the national economy, a finding of

9

“disabled” is made. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).

10
11
12
13
14
15

ADMINISTRATIVE DECISION
On November 26, 2014, the ALJ issued a decision finding Plaintiff was not
disabled as defined in the Social Security Act.
At step one, the ALJ found Plaintiff had not engaged in substantial gainful
activity since September 1, 2009, the alleged date of onset. Tr. 26.
At step two, the ALJ determined Plaintiff had the following severe

16

impairments: degenerative disc disease, status post left shoulder arthroscopy,

17

shoulder bursitis, hearing loss, depression, and anxiety. Tr. 27.

18

At step three, the ALJ found Plaintiff did not have an impairment or

19

combination of impairments that met or medically equaled the severity of one of

20

the listed impairments. Tr. 27.

21
22
23
24
25
26
27
28

At step four, the ALJ assessed Plaintiff’s residual function capacity and
found he could perform a range of medium work with the following limitations:
He can lift, carry, push and pull 50 pounds occasionally and 25 pounds
frequently with the right upper extremity; he can lift, carry, push and
pull 20 pounds occasionally and 10 pounds frequently with the nondominant left upper extremity; he can stand and walk 6 hours in an 8
hour workday; he can sit 6 hours in an 8 hour workday; he can
occasionally push and pull with the left upper extremity; he can
frequently climb ramps and stairs; he can occasionally climb ladders,

ORDER GRANTING DEFENDANT’S MOTION . . . - 4

1
2
3
4
5
6
7
8
9
10

ropes and scaffolds; he can frequently stoop, kneel, crouch and crawl;
he can occasionally reach overhead with the non-dominant left upper
extremity; he can frequently reach in all other directions with the left
upper extremity; he can frequently handle and finger with the left upper
extremity; he should not work in a job that requires fine hearing and
should be in a moderately quiet work environment; he should avoid
concentrated exposure to extreme cold, noise, vibration and hazards
such as unprotected heights and exposed moving mechanical parts; he
can understand and remember simple instructions and routine complex
instructions, and has sufficient concentration, persistence and pace to
complete simple, routine tasks and routine complex tasks; he should not
work with the general public and should not be required to work closely
with co-workers; and he should be in a workplace with few changes to
the work setting.

11
12

Tr. 29. The ALJ identified Plaintiff’s past relevant work as agricultural produce

13

packer, frame assembler, machine stacker, and industrial truck operator. Tr. 38.

14

The ALJ found that Plaintiff was able to perform this past relevant work. Id.

15

Therefore, the ALJ concluded Plaintiff was not under a disability within the

16

meaning of the Social Security Act at any time from the alleged date of onset,

17

September 1, 2009, through the date of the ALJ’s decision, November 26, 2014.

18

Tr. 38-39.
ISSUES

19
20

The question presented is whether substantial evidence supports the ALJ’s

21

decision denying benefits and, if so, whether that decision is based on proper legal

22

standards. Plaintiff contends the ALJ erred by (1) failing to accord weight to the

23

opinions of examining medical providers; (2) failing to properly consider

24

Plaintiff’s testimony about the severity of his symptoms, (3) failing to make a

25

proper step two determination and (4) failing to meet her step five burden. 2

26
27
28

2

Plaintiff identified issues three and four under one heading, but the Court

has separated out the arguments for clarity. ECF No. 14 at 13-15.

ORDER GRANTING DEFENDANT’S MOTION . . . - 5

1
2

DISCUSSION
A.

Plaintiff’s Testimony

3

Plaintiff contests the ALJ’s evaluation of his testimony stating that “the ALJ

4

made vague assertions that his testimony [was] inconsistent with the record.” ECF

5

No. 14 at 12-13.

6

It is generally the province of the ALJ to make determinations regarding the

7

credibility of Plaintiff’s symptom statements, Andrews, 53 F.3d at 1039, but the

8

ALJ’s findings must be supported by specific cogent reasons, Rashad v. Sullivan,

9

903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of malingering,

10

the ALJ’s reasons for rejecting the claimant’s testimony must be “specific, clear

11

and convincing.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Lester, 81

12

F.3d at 834. “General findings are insufficient: rather the ALJ must identify what

13

testimony is not credible and what evidence undermines the claimant’s

14

complaints.” Lester, 81 F.3d at 834.

15

The ALJ found Plaintiff had medically determinable impairments that

16

resulted in some limitations in work activity, Tr. 30, however, the ALJ found

17

Plaintiff less than fully credible concerning his allegations of disability, Tr. 32.

18

The ALJ found Plaintiff’s statements less than fully credible because (1) his

19

allegations were inconsistent with the objective medical evidence and (2) his

20

allegations were inconsistent with his reported activities. Tr. 32. In his briefing,

21

Plaintiff failed to provide a single argument to counter the ALJ’s reasons besides a

22

generic “the ALJ failed to provide the required clear and convincing reasons for

23

rejecting the Plaintiff’s subjective complaints.” ECF No. 14 at 12-13.

24

Considering Plaintiff’s failure to challenge the ALJ’s reasons with

25

specificity, the Court cannot consider his vague assertions. See Carmickle v.

26

Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008). The Ninth

27

Circuit explained the necessity for providing specific argument:

28

ORDER GRANTING DEFENDANT’S MOTION . . . - 6

The art of advocacy is not one of mystery. Our adversarial system
relies on the advocates to inform the discussion and raise the issues
to the court. Particularly on appeal, we have held firm against
considering arguments that are not briefed. But the term “brief” in
the appellate context does not mean opaque nor is it an exercise in
issue spotting. However much we may importune lawyers to be
brief and to get to the point, we have never suggested that they skip
the substance of their argument in order to do so. It is no accident
that the Federal Rules of Appellate Procedure require the opening
brief to contain the “appellant’s contentions and the reasons for
them, with citations to the authorities and parts of the record on
which the appellant relies.” Fed. R. App. P. 28(a)(9)(A). We require
contentions to be accompanied by reasons.

1
2
3
4
5
6
7
8
9
10
11

Independent Towers of Wash. v. Wash., 350 F.3d 925, 929 (9th Cir. 2003).3

12

Moreover, the Ninth Circuit has repeatedly admonished that the court will not

13

“manufacture arguments for an appellant” and therefore will not consider claims

14

that were not actually argued in appellant’s opening brief. Greenwood v. Fed.

15

Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994). Because Plaintiff failed to

16

provide adequate briefing, the court declines to consider this issue.

17

B.

18

Medical Opinions
Plaintiff argues the ALJ failed to properly consider and weigh the medical

19

opinions expressed by his examining doctors and physical therapists. ECF No. 14

20

at 10-12. However, the only opinions Plaintiff specifically challenged were those

21

of the physical therapists, ECF No. 14 at 11-12, and Thomas Genthe, Ph.D., Id. at

22

14. As discussed above, the Court will only consider those opinions Plaintiff

23

specifically discussed in his briefing.

24

1.

Physical Therapists

25

The ALJ considered the opinions of three physical therapists, Clayton Smith,

26
27
28

3

Under the current version of the Federal Rules of Appellate Procedure, the

appropriate citation would be to FED. R. APP. P. 28(a)(8)(A).

ORDER GRANTING DEFENDANT’S MOTION . . . - 7

1

Trever Anderson, and John Butts, and gave all three opinions “limited weight.” Tr.

2

33-35. Plaintiff asserts the ALJ found that she had “no obligation to consider the

3

several tests of Physical Therapists because there was no support of the same

4

limitations from treating doctors.” ECF No. 14 at 11.

5

In actuality, the ALJ gave limited weight to these opinions because (1)

6

physical therapists cannot give medical opinions and (2) all three opinions limited

7

Plaintiff’s lifting capability on the right side and Plaintiff had not been diagnosed

8

with any right upper extremity impairments. Id. Additionally, the ALJ found that

9

Mr. Smith and Mr. Butts reported that Plaintiff gave less than full effort with some

10

of the exercises, suggesting claimant could be more physically capable then he

11

demonstrated. Tr. 33, 35.

12

Here, the ALJ erred in her conclusion that physical therapists are not

13

medical doctors and, therefore, cannot give medical opinions under social security

14

regulations. Tr. 33-35. While the ALJ is accurate that physical therapists are non-

15

acceptable medical sources under social security regulations, 20 C.F.R. §§

16

404.1502(a), 416.902(a), these regulations specifically state that the ALJ is to

17

consider opinions from non-acceptable medical sources, 20 C.F.R. §§ 404.1527(f),

18

416.927(f). As such, the ALJ erred in her treatment of the opinions of the physical

19

therapists throughout the record. However, the error is harmless considering the

20

ALJ provided other legally sufficient reasons to reject the opinions as discussed

21

below.

22

The ALJ can reject the opinions of non-acceptable medical sources by

23

providing a reason germane to each witness for doing so. Ghanim v. Colvin, 763

24

F.3d 1154, 1161 (9th Cir. 2014).

25

Mr. Smith provided bilateral lifting and carrying restrictions ranging from

26

twenty to forty pounds depending on the frequency and the location of the weight

27

in reference to Plaintiff’s body. Tr. 620. Mr. Anderson also found bilateral lifting

28

and carrying restrictions. Tr. 589. His ranged from ten to forty pounds depending

ORDER GRANTING DEFENDANT’S MOTION . . . - 8

1

on the frequency and the location of weight in reference to Plaintiff’s body. Id.

2

Mr. Butts provided bilateral lifting restrictions ranging from 15 to thirty-five

3

pounds in depending on the frequency and the location of weight in reference to

4

Plaintiff’s body. Tr. 586. The ALJ gave limited weight to all three opinions

5

because they all provided bilateral lifting restrictions and the record only

6

established an impairment with his left upper extremity. Tr. 33-35. To refute the

7

ALJ’s conclusions, Plaintiff provides citations to opinions from treating sources.

8

ECF No. 14 at 11. However, all these citations address primarily the left upper

9

extremity, not the right. Id. citing Tr. 530, 539, 546, 778. A review of the record

10

shows that Plaintiff’s restrictions primarily concern the left upper extremity. Tr.

11

444, 452-453, 534, 536, 539, 543-544, 546, 551, 867, and 969. Therefore, the

12

ALJ’s determination is supported by substantial evidence and is legally sufficient

13

to support the limited weight provided to the opinions.

14

The ALJ also stated that she gave limited weight to the opinions of Mr.

15

Smith and Mr. Butts because there was evidence that Plaintiff did not give full

16

effort in the examinations. Tr. 33, 35. Mr. Smith stated that “[t]he client gave

17

varying effort with lift,” “[h]e self limited the activity with complaints of increased

18

left arm pain. Effort appeared to be inconsistent,” “[p]ain behaviors were

19

consistent with reports of increased pain although some lifting behaviors were

20

questionable, such as striking the box on the higher work station,” and “[t]he client

21

appeared to have a functional weakness of the left leg but this behavior was

22

inconsistent.” Tr. 612-613. Mr. Butts stated that “[o]verall test findings, in

23

combination with clinical observations, suggest the presence of near full levels of

24

physical effort on [Plaintiff’s] Behalf,” “[Plaintiff] can do more physically at times

25

than was demonstrated during this testing today,” “[o]verall test findings, in

26

combination with clinical observations, suggest the presence of minor

27

inconsistency to the reliability and accurate of [Plaintiff’s] reports of pain and

28

disability,” and “[Plaintiff] can do more at times than he currently states or

ORDER GRANTING DEFENDANT’S MOTION . . . - 9

1

perceives.” Tr. 563, 565. Plaintiff provides no argument to counter the ALJ’s

2

determination. Considering this, the Court will not disturb the ALJ’s

3

determination as to the opinions of the physical therapists.

4

2.

Thomas Genthe, Ph.D.

5

On December 12, 2012, Dr. Genthe conducted a Psychological Evaluation

6

Report, concluding that Plaintiff had a fair ability in several mental residual

7

functional capacity activities, including the abilities to sustain an ordinary routine

8

without supervision, to work with or near others without being distracted by them,

9

to carry out detailed instructions in a reasonable amount of time, to respond

10

appropriately to changes in the work setting, to interact appropriately with the

11

public, to get along with co-workers, and to respond appropriately to criticism

12

from supervisors. Tr. 978. However, Dr. Genthe stated Plaintiff “can be expected

13

to benefit from ongoing treatment services, such as mental health counseling as

14

well as psychotropic medication management. Such services, however, should not

15

prevent [him] from pursuing everyday work related tasks or activities

16

commensurate with his level of education and training.” Id.

17

When an examining physician’s opinion is not contradicted by another

18

physician, the ALJ may reject the opinion only for “clear and convincing” reasons,

19

and when an examining physician’s opinion is contradicted by another physician,

20

the ALJ is only required to provide “specific and legitimate reasons.” Lester, 81

21

F.3d at 830-831. The specific and legitimate standard can be met by the ALJ

22

setting out a detailed and thorough summary of the facts and conflicting clinical

23

evidence, stating her interpretation thereof, and making findings. Magallanes v.

24

Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The ALJ is required to do more than

25

offer her conclusions, she “must set forth [her] interpretations and explain why

26

they, rather than the doctors’, are correct.” Embrey v. Bowen, 849 F.2d 418, 421-

27

422 (9th Cir. 1988).

28

The ALJ gave the opinion of Dr. Genthe “some weight”, stating that “[h]is

ORDER GRANTING DEFENDANT’S MOTION . . . - 10

1

assessment of the claimant’s cognitive, social and adaptive limitations is generally

2

consistent with the objective medical evidence.” Tr. 37. Plaintiff challenges the

3

ALJ’s assignment of weight, arguing that the ALJ failed to place restrictions on his

4

interaction with co-workers, and failed to account for his inability to maintain

5

concentration and pace, his inability to learn new tasks, and his inability to interact

6

with and accept criticism from supervisors. ECF No. 14 at 14. However, the

7

ALJ’s residual functional capacity determination limited him to simple, routine

8

tasks and routine complex tasks, precluded him from working with the general

9

public and working closely with co-workers, and limited him to few changes in the

10

work setting. Tr. 29. Therefore, the ALJ failed to address only one of the above

11

abilities in the residual functional capacity determination: accepting criticism from

12

supervisors.
Plaintiff’s challenge to the ALJ’s failure to address his ability to accept

13
14

criticism from supervisors in the residual functional capacity determination does

15

not prevail. First, Dr. Genthe does not preclude Plaintiff from direct contact with

16

supervisors. He states that Plaintiff had a fair ability to respond appropriately to

17

criticism from supervisors. Tr. 978. An undefined fair ability is not equal to a

18

preclusion. Additionally, Plaintiff failed to argue with specificity how the ALJ’s

19

reasons for giving only some weight to Dr. Genthe’s opinion were legally

20

insufficient. See Carmickle, 533 F.3d at 1161 n.2. As such, the Court will not

21

disturb the ALJ’s determination regarding Dr. Genthe’s opinion.

22

C.

23

Step Two
Plaintiff asserts that the ALJ erred by stating his carpal tunnel syndrome and

24

left ulnar neuropathy were severe impairments in the heading of her step two

25

determination, but finding the impairments non-severe in the text of the

26

determination. ECF No. 14 at 9, 13-14. Additionally, Plaintiff argues the ALJ

27

erred by not discussing Plaintiff’s pain disorder at step two. Id.

28

Step-two of the sequential evaluation process requires the ALJ to determine

ORDER GRANTING DEFENDANT’S MOTION . . . - 11

1

whether or not the claimant “has a medically severe impairment or combination of

2

impairments.” Smolen, 80 F.3d at 1290 (citation omitted). “An impairment or

3

combination of impairments can be found ‘not severe’ only if the evidence

4

establishes a slight abnormality that has ‘no more than a minimal effect on an

5

individual[’]s ability to work.’” Id. at 1290; See 20 C.F.R. 416.922(a). The step-

6

two analysis is “a de minimis screening device to dispose of groundless claims.”

7

Smolen, 80 F.3d at 1290.

8

1.

Carpal Tunnel and Ulnar Neuropathy

9

In the ALJ’s decision, the heading of her step two determination stated, “The

10

claimant has the following severe impairments: . . . moderate left carpal tunnel

11

syndrome and cubital tunnel syndrome, ulnar neuropathy. . .” Tr. 27. Then in the

12

body of the step two determination, the ALJ stated “I find that left carpal tunnel

13

syndrome and left ulnar neuropathy are non-severe medically determinable

14

impairments.” Id.

15

While an inconsistency between the header of the section and the text of the

16

section may cause some confusion, the ALJ determined that the left carpal tunnel

17

syndrome and the left ulnar neuropathy were not severe. Tr. 27. Plaintiff appears

18

to argue that the non-severe determination is error because the ALJ did not include

19

the effects of the impairments in the residual functional capacity. ECF No. 14 at

20

13. However, the ALJ considered Plaintiff’s carpal tunnel at step two and found,

21

based on substantial evidence, that the impairments “would not have more than a

22

minimal effect on his ability to perform basic work activity.” Tr. 27. Without any

23

specific argument from Plaintiff addressing the impairments, the medical evidence

24

in support of severity, and resulting limitations omitted from the residual

25

functional capacity determination, the Court will not disturb the ALJ’s

26

determination.

27

2.

28

In her step two determination, the ALJ did not discuss Plaintiff’s pain

Pain Disorder

ORDER GRANTING DEFENDANT’S MOTION . . . - 12

1

disorder. Tr. 27. However, the ALJ did discuss the pain disorder diagnosis in the

2

residual functional capacity determination, specifically in the weighing of Dr.

3

Bachman’s opinion, Dr. Whitmont’s opinion, Dr. Schneider’s opinion, and Dr.

4

Genthe’s opinion. Tr. 31, 33-37.
The ALJ’s failure to consider Plaintiff’s pain disorder at step two was in

5
6

error. See Smolen, 80F.3d at 1290 citing S.S.R. 85-28 (the ALJ is to consider “[a]n

7

impairment or combination of impairments,” at step two). However, because she

8

considered the pain disorder in forming the residual functional capacity, the error

9

was harmless. See Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005) (any error

10

by ALJ at step two was harmless because the step was resolved in the claimant’s

11

favor).

12

D.

Step Five
Plaintiff argues the ALJ failed to meet her step five burden by failing to

13
14

identify specific jobs consistent with his functional limitations. ECF No. 14 at 13-

15

14.

16

If the ALJ finds a claimant cannot do his past relevant work, she proceeds to

17

step five, and the burden shifts to the Commissioner to show that (1) the claimant

18

can make an adjustment to other work, and (2) specific jobs exist in the national

19

economy which the claimant can perform. Batson, 359 F.3d at 1193-1194.

20
21

Here, the ALJ found that Plaintiff could perform his past relevant work. Tr.
38. As such, no step five determination was necessary and there was no error.

22

CONCLUSION

23

Having reviewed the record and the ALJ’s findings, the Court finds the

24

ALJ’s decision is supported by substantial evidence and free of harmful legal error.

25

Accordingly, IT IS ORDERED:

26
27
28

1.

Defendant’s Motion for Summary Judgment, ECF No. 16, is

GRANTED.
2.

Plaintiff’s Motion for Summary Judgment, ECF No. 14, is DENIED.

ORDER GRANTING DEFENDANT’S MOTION . . . - 13

1

The District Court Executive is directed to file this Order and provide a copy

2

to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant

3

and the file shall be CLOSED.

4

DATED August 25, 2017.

5
6
7

_____________________________________
JOHN T. RODGERS
UNITED STATES MAGISTRATE JUDGE

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

ORDER GRANTING DEFENDANT’S MOTION . . . - 14