Piskunov v. Berryhill

Filing 20

ORDER DISMISSING CASE and adopting the 17 Report and Recommendation. The final decision of the Commissioner is affirmed and this case is dismissed with prejudice. Signed by Judge Ricardo S Martinez. (PM)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

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YURIY PISKUNOV,
Plaintiff,

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ORDER DISMISSING CASE

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

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Case No. C17-1137 RSM

The Court, after careful consideration of Plaintiff’s Complaint, the parties’ briefs, all

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papers and exhibits filed in support and opposition thereto, the Report and Recommendation
(“R&R”) of the Honorable James P. Donohue, Plaintiff’s Objections to the R&R, the

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government’s response to those Objections, and the balance of the record, does hereby find and

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ORDER:

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(1) The Court ADOPTS the Report and Recommendation. Plaintiff objects only to that
portion of the R&R in which Judge Donohue determined that the ALJ’s error in
failing to address his treating chiropractor’s opinion was harmless. See Dkts. #17 at
9-10 and #18. Plaintiff asserts that the ALJ’s failure to consider the opinion was not

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harmless error because the jobs cited by the ALJ in his decision are all light jobs

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which would require the ability to lift more than ten pounds. Dkt. #18 at 5. Plaintiff

ORDER DISMISSING CASE
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further asserts that because the ALJ did not adopt the vocational expert’s testimony

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that there were sedentary jobs Plaintiff could perform, the Court cannot affirm the

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ALJ’s decision on that basis. Dkt. #18 at 5. The Court is not persuaded by Plaintiff.

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The entirety of Plaintiff’s argument with respect to Dr. Borisenko’s opinion is as
follows:
The record shows that Plaintiff has had long term treatment by
chiropractor Slava Borisenko, D.C. Tr. 409-561, 692-708. In
February 2014, Dr. Borisenko wrote a letter describing his
examination and treatment of Plaintiff. Tr. 507-07. Dr. Borisenko
concluded that Plaintiff was not able to lift over ten pounds. Tr.
506.
Dr. Borisenko is not an acceptable medical source under Social
Security’s rules, but he is a medical source. Adjudicators generally
should explain the weight given to such sources or otherwise
ensure that the discussion of the evidence in the determination or
decision allows a reviewed to follow the ALJ’s reasoning when
such opinions may have an effect on the outcome of the case. 20
C.F.R. 404.1527(f)(2).
The ALJ erred because he failed to even mention Dr. Borisenko’s
opinion in his decision. This is significant because the
vocational expert testified that if Plaintiff could not lift more
than ten pounds he would not be able to perform any of the
light jobs he identified. Tr. 80.
Plaintiff requests remand for further consideration of Dr.
Borisenko’s opinion.
Dkt. #12 at 7-8 (emphasis added).
However, the vocational expert identified sedentary jobs and stated that a person
limited to sedentary work with the other limitations found in Plaintiff’s residual
functional capacity would be able to perform the jobs of charge-account clerk, call-

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ORDER DISMISSING CASE
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out operator, and table worker. Tr. 77–78. Plaintiff has failed to demonstrate that he
could not do the other jobs the vocational expert cited.
Judge Donohue concluded that the vocational expert’s testimony ultimately
supported the ALJ’s finding that Plaintiff could perform other work, even considering

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the unaddressed sedentary limitation. Dkt. #17 at 9-10. Plaintiff’s reliance on Bray

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does not compel a different conclusion. In that case, the Ninth Circuit found that the

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ALJ’s decision could only be supported through post hoc reasoning because the

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vocational expert’s testimony did not provide the evidence to support the necessary

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findings. In this case, however, the vocational expert did testify that a person with
the limitations the ALJ found but further limited to sedentary work would be able to
perform other work. Tr. 77–78. Thus, the Court agrees with the government that no

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inferences need be drawn and no new grounds need be provided; the testimony is

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clear.

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Finally, even if this Court credited Plaintiff’s argument that two of the three sedentary

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jobs were beyond his residual functional capacity, the remaining job cited by the ALJ

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– table worker – numbered over 100,000 jobs nationally, which exceeds numbers that

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the Ninth Circuit has upheld as reasonable. See Moncada v. Chater, 60 F.3d 521,

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524 (9th Cir. 1995) (64,000 jobs nationally was significant). Accordingly, this Court
agrees that any error was harmless.
(2) The final decision of the Commissioner is AFFIRMED and this case is dismissed
with prejudice.

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ORDER DISMISSING CASE
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(3) The Clerk of the Court is directed to send copies of this Order to the parties and to
Judge Donohue.
DATED this 13th day of March 2018.

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A

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RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

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ORDER DISMISSING CASE
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