Opinion

Rosa Maria Pena Martinez v. Nancy A. Berryhill

Court: District Court, C.D. California
Filed: Aug 14, 2019
Cited by: 0 cases
Authority: More cited than 16.3%

“We now hold that, at least when claimants are 10 represented by counsel, they must raise all issues and evidence at their 11 administrative hearings in order to preserve them on appeal.”

How later courts described this case

“We now hold that, at least when claimants are 10 represented by counsel, they must raise all issues and evidence at their 11 administrative hearings in order to preserve them on appeal.”
the ALJ must “specifically identify 13 the testimony [the ALJ] finds not to be credible and must explain what 14 evidence undermines the testimony”
“While subjective pain 25 testimony cannot be rejected on the sole ground that it is not fully 26 corroborated by objective medical evidence, the medical evidence is 27 still a relevant factor in determining the severity of the claimant’s 28 pain and its disabling effects.”
an ALJ’s error is 26 harmless “when it is clear from the record . . . that it was 27 ‘inconsequential to the ultimate nondisability determination.’”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION

ROSA MARIA PENA MARTINEZ, ) Case No. CV 18-06155-AS

13 )

Plaintiff, ) MEMORANDUM OPINION

14 )

v. )

15 )

ANDREW M. SAUL, Commissioner )

16 of the Social Security )

Administration,1 )

17 )

Defendant. )

18 )

PROCEEDINGS

On July 16, 2018, Plaintiff filed a Complaint seeking review of the

denial of her application for Disability Insurance Benefits. (Docket

Entry No. 1). The parties have consented to proceed before the

undersigned United States Magistrate Judge. (Docket Entry Nos. 11, 21).

On December 27, 2018, Defendant filed an Answer along with the

Administrative Record (“AR”). (Docket Entry Nos. 13-14). On June 14,

28 1 Andrew M. Saul is now the Commissioner of the Social Security

Administration and is substituted in for Acting Commissioner Nancy A.

Berryhill in this case. See Fed.R.Civ.P. 25(d).

1 2019, the parties filed a Joint Stipulation (“Joint Stip.”) setting

2 forth their respective positions regarding Plaintiff’s claims. (Docket

3 Entry No. 25).

5 The Court has taken this matter under submission without oral

6 argument. See C.D. Cal. L.R. 7-15.

BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

10 On February 26, 2014, Plaintiff, formerly employed as an adult home

11 care worker, childcare worker, mechanical assembler (antenna, watches,

12 airplane parts), and agricultural field worker (see AR 62-65, 228-33,

13 239-44), filed an application for Disability Insurance Benefits,

14 alleging an inability to work because of a disabling condition since

15 November 18, 2012. (See AR 198-201).2 The Commissioner denied

16 Plaintiff’s application initially and on reconsideration. (AR 91, 105).

18 On November 29, 2016, the Administrative Law Judge (“ALJ”), Kyle E.

19 Andeer, heard testimony from Plaintiff (represented by counsel) and an

20 impartial vocational expert (“VE”), Steve Hughes. (See AR 45-74). On

21 January 5, 2017, the ALJ issued a decision denying Plaintiff’s

22 application. (See AR 29-36). Applying the five-step sequential

23 process, the ALJ found at step one that Plaintiff had not engaged in

24 substantial gainful activity since November 18, 2012, the alleged onset

25 date, through June 30, 2015, the date last insured. (AR 31). At step

2 On the same date, Plaintiff filed an application for

28 Supplemental Security Income, alleging a disability since November 18,

2012. (See AR 202-07). Plaintiff’s application for SSI was denied for

reasons related to Plaintiff’s and her husband’s financial resources.

(See AR 108-15).

1 two, the ALJ determined that Plaintiff had the following severe

2 impairments –- “obesity; degenerative disc disease, lumbar spine;

3 affective disorder; diabetes mellitus; [and] status post shoulder

4 repair. (AR 31). At step three, the ALJ determined that Plaintiff did

5 not have an impairment or combination of impairments that met or equaled

6 the severity of one of the listed impairments. (AR 31-33).

8 The ALJ then determined that Plaintiff had the residual functional

9 capacity (“RFC”)3 to perform light work,4 as defined in 20 C.F.R. §

10 404.1567(b) with the following limitations:

12 [Plaintiff] can push/pull frequently but not constantly;

13 cannot climb ropes, ladders and scaffolds; can climb ramps or

14 stairs occasionally; can balance frequently; can stoop,

15 crouch, kneel and crawl occasionally; must avoid concentrated

16 exposure to extreme heat, wetness and humidity; must avoid

17 hazards including moving machinery and unprotected heights;

18 can do simple routine, repetitive tasks; can interact with

19 coworkers, supervisors and the public occasionally; and can

20 be employed in a low stress job, with only occasional

21 decision-making or judgment required and with only occasional

22 changes in the work setting.

3 A Residual Functional Capacity is what a claimant can still do

26 despite existing exertional and nonexertional limitations. See 20

C.F.R. §§ 404.1545(a)(1).

4 “Light work involves lifting no more than 20 pounds at a time

28 with frequent lifting or carrying of objects weighing up to 10 pounds.”

20 C.F.R. § 404.1567(b).

1 (AR 33-35). At step four, the ALJ determined that Plaintiff was capable

2 of performing past relevant work as a small products assembler as

3 actually and generally performed (AR 35) and therefore was not disabled

4 within the meaning of the Social Security Act. (AR 35-36).

6 The Appeals Council denied Plaintiff’s request for review on May

7 22, 2018. (See AR 1-5). Plaintiff now seeks judicial review of the

8 ALJ’s decision, which stands as the final decision of the Commissioner.

9 See 42 U.S.C. §§ 405(g), 1383(c).

STANDARD OF REVIEW

This Court reviews the Commissioner’s decision to determine if it

is free of legal error and supported by substantial evidence. See

Brewes v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012). “Substantial

evidence” is more than a mere scintilla, but less than a preponderance.

Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). To determine

whether substantial evidence supports a finding, “a court must consider

the record as a whole, weighing both evidence that supports and evidence

that detracts from the [Commissioner’s] conclusion.” Aukland v.

Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001)(internal quotation

omitted). As a result, “[i]f the evidence can support either affirming

or reversing the ALJ’s conclusion, [a court] may not substitute [its]

judgment for that of the ALJ.” Robbins v. Soc. Sec. Admin., 466 F.3d

880, 882 (9th Cir. 2006).5

27 5 The harmless error rule applies to the review of

administrative decisions regarding disability. See McLeod v. Astrue,

28 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676,

(continued...)

PLAINTIFF’S CONTENTIONS

Plaintiff alleges that the ALJ erred in failing to properly: (1)

assess Plaintiff’s subjective symptom testimony and Plaintiff’s

daughter’s testimony; (2) assess the opinions of Plaintiff’s treating

physicians; and (3) determine whether Plaintiff could perform past

relevant work. (See Joint Stip. at 3-7, 11-22).

DISCUSSION

After consideration of the record as a whole, the Court finds that

the Commissioner’s findings are supported by substantial evidence and

are free from legal error.

A. The ALJ Properly Assessed The Testimony and Statements Provided by

16 Plaintiff and Plaintiff’s Daughter

18 Plaintiff asserts that the ALJ did not provide clear and convincing

19 reasons for discrediting Plaintiff’s testimony about her symptoms and

20 limitations and asserts that the ALJ did not provide germane reasons for

21 discrediting Plaintiff’s daughter’s testimony. (See Joint Stip. at 3-7,

22 11-12). Defendant contends that the ALJ properly discounted the

23 testimony of Plaintiff and her daughter. (See Joint Stip. at 7-11).

25 //

5 (...continued)

28 679 (9th Cir. 2005)(An ALJ’s decision will not be reversed for errors

that are harmless).

1 1. Legal Standard

A. Plaintiff’s Testimony

Where, as here, the ALJ finds that a claimant suffers from a

medically determinable physical or mental impairment that could

reasonably be expected to produce her alleged symptoms, the ALJ must

evaluate “the intensity and persistence of those symptoms to determine

the extent to which the symptoms limit an individual’s ability to

perform work-related activities for an adult . . . .” Soc. Sec. Ruling

(“SSR”) 16-3p, 2017 WL 5180304, *3.6

A claimant initially must produce objective medical evidence

establishing a medical impairment reasonably likely to be the cause of

the subjective symptoms. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.

1996); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991). Once a

claimant produces objective medical evidence of an underlying impairment

that could reasonably be expected to produce the pain or other symptoms

alleged, and there is no evidence of malingering, the ALJ may reject the

claimant’s testimony regarding the severity of his or her pain and

symptoms only by articulating specific, clear and convincing reasons for

doing so. Brown-Hunter v. Colvin, 798 F.3d 749, 755 (9th Cir.

2015)(citing Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir.

2007)); see also Smolen, supra; Robbins v. Social Sec. Admin, 466 F.3d

6 SSR 16-3p, which superseded SSR 96-7p, is applicable to this

27 case, because SSR 16-3p, which became effective on March 28, 2016, was

in effect at the time of the Appeal Council’s May 22, 2018 denial of

28 Plaintiff’s request for review. 20 C.F.R. § 404.1529, the regulation on

evaluating a claimant’s symptoms, including pain, has not changed.

880, 883 (9th Cir. 2006); Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.

1998); Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997).

Because the ALJ does not find that Plaintiff was malingering, the “clear

and convincing” standard stated above applies.

Generalized, conclusory findings do not suffice. See Moisa v.

Barnhart, 367 F.3d 882, 885 (9th Cir. 2004)(the ALJ’s credibility

findings “must be sufficiently specific to allow a reviewing court to

conclude the [ALJ] rejected [the] claimant’s testimony on permissible

grounds and did not arbitrarily discredit the claimant’s testimony”)

(citation and internal quotation marks omitted); Holohan v. Massanari,

246 F.3d 1195, 1208 (9th Cir. 2001)(the ALJ must “specifically identify

the testimony [the ALJ] finds not to be credible and must explain what

evidence undermines the testimony”); Smolen, 80 F.3d at 1284 (“The ALJ

must state specifically which symptom testimony is not credible and what

facts in the record lead to that conclusion.”).

B. Plaintiff’s Daughter’s Testimony

The ALJ is required to give germane reasons for rejecting or

partially rejecting lay witness testimony. See Carmickle v. Comm’r v.

Soc. Sec. Admin., 533 F.3d 1155, 1162–63 (9th Cir. 2008); Greger v.

Barnhart, 464 F.3d 968, 972 (9th Cir. 2006); Lewis v. Apfel, 236 F.3d

503, 511 (9th Cir. 2001); Smolen, 80 F.3d at 1288-89.

1 2. The ALJ’s Credibility Findings

Plaintiff made the following statements in a Function Report -

Adult dated April 10, 2014 (see AR 254-61):

She lives with family in a trailer. She suffers pain in

her back, right arm, and right shoulder. (See AR 254-55).

As a result of her conditions, she cannot carry anything

heavy, can barely move stuff around, and cannot sleep (back

pain). She does not take care of anybody else or pets. She

cannot bathe because she cannot reach with her right arm.

She has trouble with caring for her hair (she cannot use her

right hand, only her left hand). She cannot shave because

she cannot move her right arm. She has trouble feeding

herself and using the toilet because of pain in her right

arm. She does not need reminders taking care of personal

needs or taking medicine. She daily prepares meals (mostly

on the stove or sometimes sandwiches) every 2 to 3 hours,

which takes 15 to 30 minutes; her depression and anxiety

cause her to eat a lot. She cleans the house, but not very

much (20 minutes most); her family sometimes helps her. She

does not drive; she gets rides from others when she goes out.

She shops in stores 1 to 2 times a week. She is not able to

pay bills, handle a savings account, or use a checkbook/money

orders, but she is able to count change. Her ability to

handle money has changed because of her inability to use her

right hand. Her only interest is watching television. She

does not spend time with others. She goes to church every

17 Sunday, usually with somebody. She does not have any

problems getting along with others. She does not feel like

18 going out with others because of her pain. (See AR 255-59).

19 Her conditions affect her abilities to lift, squat,

bend, stand, reach, walk, sit, kneel, stair-climb, see,

20 concentrate, use hands, and memory. She can walk for about

20 to 30 minutes before needing to rest, and can resume

21 walking after resting for 15 minutes. She cannot

concentrate; whether she finishes what she starts “depends.”

22 She struggles with following written instructions. She can

follow spoken instructions but then forgets them. She gets

23 along well with authority figures, but does not have contact

with them. She has never been fired or laid off from a job

24 because of problems getting along with other people. She

handles stress by lying down in her room, and handles changes

25 in routine “so so.” Her unusual behaviors or fears are

fear/anxiety of being alone and sometimes seeing things that

26 are not there. (See AR 259-61).

1 Plaintiff made the following statements in a Function Report -

Adult dated September 2, 2016 (see AR 301-10):

She lives with family in a mobile home. She suffers

4 pain in her back, right arm, right shoulder, hip and right

leg. She is not able to work because of her pain; she cannot

use her right arm, bend, pick up anything, sit (more than 10

minutes), walk (more than 7 minutes), clean her house

(without the help of her daughters or a friend). (See AR

301, 306).

She needs help getting out of bed, making her bed,

getting up from the toilet, showering, shaving, grooming,

cleaning, cooking, and going to bed. She does not take care

of anybody else or pets. As a result of her conditions, she

can no longer cook, clean, shower, work, go to the gym, dance

or take care of her grandchildren, or sleep (she has to

change positions all night). She is not able to dress

herself, bathe (without assistance), care for her hair (she

can only use her left hand), shave (without assistance), feed

herself (she can only use her left hand), use the toilet

(without assistance getting up). She needs reminders from

her daughters to shower and to take medicine. She does not

prepare her own meals because she cannot stand for very long

or use her right hand; her family does all the cooking. She

does not do any house or yard work because of her extreme

pain; her family does them for her. She goes out riding in

a car or walking (she can only walk for seven minutes, and

her daughters are afraid she will fall or hurt herself). She

16 does not shop; her daughters do all the shopping. She is not

able to pay bills, handle a savings account or use a

17 checkbook/money orders (she never had a checkbook or savings

account), but she is able to count change. Her ability to

18 handle money has changed because she forgets and asks the

same question. Her interests are reading the Bible (she can

19 not read as long as before) and going for walks (she can no

longer speed walk). She spends time with others daily

20 because she needs assistance with everything. She goes to

church on Sundays. She needs to be reminded to go to the

21 doctor and needs to be accompanied. She does not have any

problems getting along with others. During all conversations

22 she complains about pain. (See AR 302-06).

23 Her conditions affect her ability to lift, squat, bend,

stand, reach, walk, sit, kneel, stair-climb, see, memory,

24 complete tasks, concentrate, understand, follow instructions,

and use her hands. She can pay attention for a few minutes

25 before she starts feeling pain. She does not follow written

instructions well. She does not follow spoken instructions

26 well (the instructions need to be repeated a few times). She

gets along well with authority figures. She has never been

27 fired or laid off because of problems getting along with

other people. She does not handle stress well (she gets

28 frustrated and aggressive), and does not handle changes in

1 routine well (she tends to forget). Her unusual behavior or

fear is feeling very afraid. She daily uses a cane

2 (prescribed in 2013) and glasses/contact lenses. (See AR

306-07).

For her conditions, she currently takes the following

4 medicines (none of which cause side effects): Duloxetine, 30

mg; Gabapentin, 300 mg; Methacarbanol, 750 mg (4 times/day);

5 Topiramate, 2 mg (2 times/day); Cyclosbenzaprine, 10 mg (3

times/day); Aspirin, 81 mg (1 time/day); Fluoxetine, 20 mg (1

6 time/day), Glipizide, 10 mg (1 time/day); Lisinopril, 12.5 mg

(1 time/day); Metformin, 1000 mg (2 times/day); Naproxin, 500

7 mg (2 times/day); Simuastatin, 40 mg (1 time/day), Tramadol,

50 mg (2 times/day); Victoza, 20 mg (1 time/day); Lantus, 20

8 mg (1 time/day); Norco, 10.325 mg (1 time/day); Invocana, 300

mg (1 time/day); Januvia, 300 mg (1 time/day); Metformin,

9 1000 mg (2 times/day); and Bupropion, 150 mg (1 time/day).

(See AR 308–10).

Plaintiff gave the following testimony at the administrative

hearing (see AR 46-63):

14 In November 2012, when she was taking care of an elderly

person, she was cleaning the bathroom and fell, injuring her

15 back and her entire right side (arm, shoulder). She has not

worked since then. She filed a Workers’ Compensation case

16 which settled in February 2014. She did not get continuing

medical care from the accident. She continues to suffer pain

17 mostly in the lower back, and still has pain in her arm,

shoulder, hand (numbness and pain) leg, knee and foot (heel,

18 bottom of foot, and toes). Since the accident she has fallen

several times which has caused her pain to get worse. The

19 pain in her foot interferes with her activity; she feels pain

in her foot even when she is just sitting (but it is not as

20 painful). She is unable to do her past assembler jobs

(antennas, watches) because she cannot sit or stand for a

21 long time. (See AR 46-52, 62-63).

22 Her doctor has told her that they want to give her

injections for her knee. However, her diabetes doctor told

23 her that injections sometimes make the sugar level go higher.

(See AR 49).

She last had physical therapy for her right shoulder in

25 2012 or 2013. That physical therapy caused her pain

sometimes. (See AR 48).

She takes Norco (pain medication) two times a day,

27 although her doctor prescribed it only one time a day. She

also takes Naproxin, but that does not help much with the

28 pain (“it helps control the pain level a little bit”). See

AR 52-53).

Her diabetes causes problems with her eyes. She checks

2 her blood sugar twice a day. Her blood sugar level is over

200. She began to see a new diabetes doctor (Dr. Pinzone) a

3 month ago. Dr. Pinzone stopped a lot of her medications and

gave her a different medication. (See AR 49-50, 58-59).

She weighs 270 pounds (she once weighed 300 pounds).

5 Her weight causes the pain in her lower back to be worse.

She stopped taking medication which had caused her to gain

6 weight. (See AR 60).

7 In May 2016, she went to the hospital because of

breathing problems. The electrocardiograms did not reveal

8 any issues. Since then she has had heart palpitations. (See

AR 61-62).

Following the accident she suffered bad depression. She

10 sometimes suffers bad depression and anxiety, which causes

her to eat (which is bad for her diabetes). She sometimes

11 does not feel like waking up, showering or leaving the room.

She gets depressed/suicidal when she thinks about not being

12 able to work and help others (such as her brother who

underwent heart surgeries). At one point (after she had told

13 her doctor she wanted to die), her doctor called police who

took her to a hospital for a mental evaluation. (See AR 50,

14 55-59).

15 She has seen a psychiatrist (Dr. Wilkinson) and a

psychologist (Dr. Alvarado). She regularly takes the

16 medications prescribed by Dr. Wilkinson, but they do not work

some days. She stopped taking the medications 15 days ago

17 because they made her feel worse. She does not think Dr.

Alvarado is helping her. Although she does not feel the

18 doctors have helped her with her depression, she was told

that her diabetes has contributed to her depression. (See AR

19 56-58).

20 She lives with her in-laws in a trailer. Her day

consists of getting up, getting coffee from the stove (the

21 coffee pot is already there), preparing food (like a

sandwich), sitting for a little while to eat, standing,

22 taking a shower (with her daughter’s assistance), and

sometimes cleaning the trailer (with her daughter’s

assistance). She showers every two days. (See AR 54-55,

59).

She is able to walk for about 10 minutes. She began

using a cane about two months ago (when she fell). Getting

up using the cane causes swelling and numbness in the hand

and pain in the arm. She can stand for about 5 minutes (to

wash dishes). She can sit for 10 to 12 minutes, but needs to

move around and change positions. She can lift about 10

pounds. Since she does not drive, she has to ask others for

rides to get to her doctors’ appointments. (See AR 50, 53-

54, 61-63).

1 In a Function Report - Adult - Third Party dated November 9, 2016,

Plaintiff’s daughter, who is 28 years-old and spends 4 days a week with

Plaintiff, made essentially the same statements as those made by

Plaintiff in her Function Report - Adult dated September 2, 2016 (with

the exception of Plaintiff’s medications). (See AR 311-18).

After briefly summarizing Plaintiff’s testimony (see AR 33)7, the

ALJ wrote: “After careful consideration of the evidence, the undersigned

finds that the claimant’s medically determinable impairments could

reasonably be expected to cause the alleged symptoms; however, the

claimant’s statements concerning the intensity, persistence and limiting

effects of these symptoms are not entirely consistent with the medical

evidence and other evidence in the record for the reasons explained in

this decision.” (AR 20).

The ALJ addressed Plaintiff’s testimony as follows:

The claimant suffered a work injury on November 18, 2012, the

alleged onset date. She stated that she slipped and fell and

landed on her glutes and right upper extremity (Exhibit 1F at

1).

She was treated through the Workers’ Compensation system.

Treatment included acupuncture, opioid medications,

chiropractic care, and physical therapy (Exhibits 1F; 2F).

She was given temporary work restrictions of lifting,

pushing, and pulling only 10 pounds and limit (sic) sitting,

7 The ALJ wrote:

The claimant testified that she has problems with her

right arm and back. She stated that she continues to

have pain in her lower back with any motion. The

claimant reported should (sic) emergency department pain,

but stated that she has not had any treatment for her

shoulder recently. The claimant reported depression and

anxiety.

1 a4 85,- m1i2n4u,t e 1b2r8e,a k 1o4r9 )c.h an geT hien pcolsaiitmiaonnt (Esxthoipbpietd 2Fs eaeti n2g, D2r9.,

2 Moelleken in January 2014 (Exhibit 9F at 1; 13F at 1). It

does not appear that she ever received injections, nor was

3 surgery recommended. She stated that she settled her

Workers’ Compensation case in February 2014 with no ongoing

4 medical coverage.

She returned to Dr. Moelleken, however, over two years later

in March 2016 asking for pain medications (Exhibit 9F at 1).

In that interim, the claimant generally reported no pain

symptoms or back or joint problems to her primary care

provider (Exhibit 11F). The claimant saw Dr. Moelleken in

August 2016, but reported that she had not taken pain

medications for over two weeks, suggesting that her pain was

not particularly severe (Exhibit 12F at 1). The claimant

then followed up more regularly with Dr. Moelleken receiving

Norco (Exhibit 16F).

This history suggests that while the claimant may have

sustained an injury at the alleged onset date, she was

managed with only conservative care and eventually settled

the claim with no provision for ongoing medical care. This

suggests that the claimant’s symptoms resolved

satisfactorily. The claimant had reported that her

medications were effective and allowed her to do more

activities around the house and self-care (Exhibit 2F at 5).

The claimant’s physical examinations were generally normal

(Exhibits 14F; 18F) and the imaging and diagnostic studies in

the record do not show the types of severe findings that

16 would be expected were the claimant’s symptoms as severe as

alleged. MRI of the lumbar spine showed degenerative disc

17 disease and mild canal stenosis and mild foraminal farrowing

(Exhibit 3F at 115-116). MRI of the right hip showed only

18 minimal spurring (Exhibit 3F at 121). MRI of the right knee

did not show definite tear (Exhibit 3F at 125). MRI of the

19 right shoulder showed mild to moderate supraspinatus and

infraspinatus tendinosis (Exhibit 3F at 127). X-ray of right

20 shoulder was normal (Exhibit 1F at 1).

21 Follow up for the claimant’s diabetes mellitus did not show

severe symptoms that would limit her ability to perform work

22 activity greater than found herein (Exhibit 4F; 11F). There

is also mention that the claimant’s compliance may not have

23 been full (Exhibit 11F at 9, 23, 31; 14F at 9, 61; 18F at 3).

24 As for the claimant’s mental symptoms, suicidal ideation was

reported once (Exhibit 2F at 21). She was then prescribed

25 medications and her symptoms improved (Exhibit 2F at 5).

Reports from some treatment providers do not suggest that she

26 would have limitations greater than those assigned herein

(Exhibit 17F at 1; 19F).

The record reflects daily activities of the claimant that are

28 not limited to the extent one would expect, given the

complaints of disabling symptoms and limitations. The

2 claimant reported she is able to handle finances and go out

alone (Exhibit 6F at 3).

4 (AR 33-34).

6 After discussing the opinions of the orthopedic consultative

7 examiner, the psychological consultative examiner, and Plaintiff’s

8 treating psychologist, as well as the weight given to such opinions (see

9 AR 35), the ALJ addressed Plaintiff’s daughter’s testimony as follows:

10 “The undersigned considered the statement of the claimant’s daughter

11 at Exhibit 16E and notes that this statement details the same types of

12 complaints and symptoms already alleged by the claimant. Thus, the

13 undersigned finds that this evidence is cumulative with respect to the

14 allegations by the claimant and, as explained above, the objective

15 evidence provides good reasons for questioning the reliability of the

16 claimant’s subjective complaints. Accordingly, the undersigned gives

17 this statement little weight.” (AR 35).

19 3. The ALJ’s Assessments of Testimony Provided by Plaintiff and

Plaintiff’s Daughter

21 A. Plaintiff’s Testimony

23 Substantial evidence supports the ALJ’s finding that Plaintiff’s

24 testimony about the intensity, persistence and limiting effects of the

25 symptoms related to her injuries suffered during her November 2012

26 accident was not credible.8

27 8 Since Plaintiff appears to challenge the ALJ’s reasons for

discounting Plaintiff’s testimony concerning the limitations resulting

28 from her 2012 accident, the Court need not address the ALJ’s reasons for

(continued...)

The ALJ properly discounted Plaintiff’s testimony concerning the

limiting effects of the physical injuries she suffered during her

November 2012 accident based on her positive response to conservative

treatment (see AR 34). See Tommasetti v. Astrue, 533 F.3d 1035, 1040

(9th Cir. 2008)(“The record reflects that Tommasetti responded favorably

to conservative treatment including . . . the use of anti-inflammatory

medication [and] a transcutaneous electrical nerve stimulation

unit . . . . Such a response to conservative treatment undermines

Tommasetti’s reports regarding the disabling nature of his pain.”);

11 Crane v. Shalala, 76 F.3d 251, 254 (9th Cir. 1996)(“the evidence

12 suggesting that [the claimant] responded well to treatment” supports an

13 adverse credibility finding); see also Warre v. Comm’r of the SSA, 439

14 F.3d 1001, 1006 (9th Cir. 2006)(“Impairments that can be controlled

15 effectively with medication are not disabling for the purpose of

16 determining eligibility for SSI benefits.”). As the ALJ noted,

17 Plaintiff received a variety of treatments following the accident,

18 including acupuncture, opioid medications, chiropractic care, and

physical therapy (see AR 321-34 [Performance Therapy Center records from

January 4, 2013 to January 22, 2013], AR 335-484 [The Spine and

Orthopedic Center records from February 12, 2013 to January 14, 2014,

several of which noted that Plaintiff had been prescribed Norco (see AR

483, 473, 465-66, 454, 438, 427, 412, 386, 340 [Progress Notes dated

February 12, 27, 2013, March 18, 2013, April 16, 2013, June 3, 2013,

July 2, 2013, August 6, 2013, October 31, 2013, December 5, 2013, and

8 (...continued)

discounting Plaintiff’s testimony concerning her limitations related to

her other impairments (i.e., diabetes, affective disorder).

1 January 13, 2014]), but those records, as well as other records from The

2 Spine and Orthopedic Center (see AR 485-627), do not contain any

notations that Plaintiff received injections or was recommended surgery.

In addition, as Defendant points out (see Joint Stip. at 9),

several medical records expressly state that Plaintiff received only

conservative treatment (see AR 81 [Timothy Schumacher, Ph.D., a State

Agency medical consultant, when discussing the history following the

accident, stated: “[W]orkmens comp IHSS comes in from York[,] they were

treating her for lumbar spine awaiting block 112013[,] PT and other

conservative tx/pain meds did not help much[.]”], 382 [In a Progress

Note dated November 11, 2013, Alan P. Moelleken, M.D., Plaintiff’s

treating physician at The Spine and Orthopedic Center, when discussing

15 Plaintiff’s records, stated: “Denial of the medial branch block

16 received on 9/03/2013. It appears that the reason for the denial of the

17 right medial branch block at L4-5 and L5-S1 facet joints was that she

18 had verterbral pain noted and it was not expressly stated that she has

19 failed conservative treatment. . . . She has also tried conservative

20 management with medications, a home exercise program, physical therapy,

21 chiropractic therapy, and acupuncture, all which she failed.”], 478 [In

22 an Orthopedic l M. Price, M.D. at the Spine and Orthopedic Center,

stated that “[f]uture medical considerations includes a hip arthroscopy

specialist pending her response to more conservative treatment.”]).

Compare Boitnott v. Colvin, 2016 WL 362348, *4 (S.D. Cal. Jan. 29,

2016)(finding that the ALJ improperly discredited the plaintiff’s

testimony based on the conservative and routine nature of the

plaintiff’s treatment because inter alia “[t]here was no medical

1 testimony at the hearing or documentation in the medical record that the

2 prescribed medication constituted ‘conservative’ treatment of [the

plaintiff’s] conditions”). Moreover, as the ALJ noted, Plaintiff

herself admitted the effectiveness of the medications in alleviating her

symptoms and limitations. (See AR 385 [Progress Note dated October 1,

2013, noting: “She reports some constipation with the medications and

states that the Norco and cream decrease her pain by about 50 percent

temporarily and increases her function.”], 366 [Progress Report dated

November 18, 2013, noting: “In regards to the medications, she has been

using Norco 7.5/325 mg up to three times a day for pain as well as

Ducoprene for opioid-induced constipation. . . . She notes that with

the Norco and Ducuprene that these have been effective and allowing her

to do more activities around the house and provide self-care.”], 339

15 [Progress Report dated January 13, 2014 (same)].

17 The ALJ also properly discredited Plaintiff's testimony about the

18 limiting effects of the physical injuries she suffered during the

19 November 2012 accident because Plaintiff’s assertions were not supported

20 by the objective medical evidence (see AR 34). See Burch v. Barnhart,

21 400 F.3d 676, 681 (9th Cir. 2005)(“Although lack of medical evidence

22 cannot form the sole basis for discounting pain testimony, it is a

factor that the ALJ can consider in his credibility analysis.”); Rollins

v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001)(“While subjective pain

testimony cannot be rejected on the sole ground that it is not fully

corroborated by objective medical evidence, the medical evidence is

still a relevant factor in determining the severity of the claimant’s

pain and its disabling effects.”); SSR 16-3p, *5 (“objective medical

evidence is a useful indicator to help make reasonable conclusions about

the intensity and persistence of symptoms, including the effects those

symptoms may have on the ability to perform work-related activities”).

As the ALJ pointed out, the medical records revealed that Plaintiff’s

physical examinations were mostly unremarkable. (See AR 321 [Physical

Therapy Initial Examination report dated January 4, 2013, noting that

“Xray right shoulder normal”], 599-600 [MRI of the lumbar spine on May

1, 2013], 603 [MRI of the thoracic spine dated April 30, 2013], 605-06

[MRI of the left hip dated April 2, 2013], 607-08 [MRI of the right hip

11 dated April 2, 2013], 609-10 [MRI of the right knee], 611-12 [MRI of the

12 right shoulder], 613 [X-ray of the orbits dated February 28, 2013], 351-

13 53, 355-57, 370-72, 374-76, 389-91, 399-401, 407-09, 415-17, 419-21,

14 437-39, 441-43, 449-51, 465-67, 469-71, 477-79, [The Spine and

15 Orthopedic Center, Progress Reports dated February 12, 2013, March 13,

16 2013, March 18, 2013, April 16, 2013, May 29, 2013, June 3, 2013, July

17 9, 2013, July 10, 2013, August 7, 2013, August 29, 2013, September 4,

18 2013, October 30, 2013, November 5, 2013, December 11, 2013, January 7,

2014, containing normal physical examination or orthopedic examination

findings], 833-35, 844-47, 859-61, 869-71, 886-88, 936-38, 941-43, 995-

98, 1001-03 [Clinicas Del Camino Real, Inc. Office Visit notes and

Physician’s Assistant notes dated July 16, 2014, October 25, 2014,

January 7, 2015, May 18, 2015, August 3, 2015, June 13, 2016, July 11,

2016, July 18, 2016, and August 8, 2016, containing normal physical

examination findings]).

The ALJ also discounted Plaintiff’s testimony about the limiting

effects of the physical injuries suffered during the November 2012

accident based on her ability to perform certain daily activities, such

as handling finances and going out alone, was not a clear and convincing

reason. (AR 34). However, this was not a clear and convincing reason

for discrediting Plaintiff’s symptom testimony. See Vertigan v. Halter,

260 F.3d 1044, 1050 (9th Cir. 2001)(“[T]he mere fact that a plaintiff

has carried on certain daily activities . . . does not in any way

detract from her credibility as to her overall disability. One does not

need to be ‘utterly incapacitated’ in order to be disabled.”); Reddick,

11 supra (“Only if the level of activity were inconsistent with the

12 Claimant’s claimed limitations would these activities have any bearing

13 on Claimant’s credibility.”); Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th

14 Cir. 2014)(“However, there is no indication here that the limited

15 activities Ghanim engaged in, often with the help of a friend, either

16 comprised a ‘substantial portion’ of Ghanim’s day, or were

17 ‘transferrable’ to a work environment.”); Morgan v. Comm’r of Soc. Sec.

18 Admin., 169 F.3d 595, 600 (9th Cir. 1999). However, because the ALJ

also provided valid reasons for discounting Plaintiff’s testimony, as

discussed above, any error in discounting Plaintiff’s testimony based

on her activities of daily living is harmless. See Carmickle, supra,

533 F.3d at 1162 (the ALJ’s error in giving two invalid reasons for

partially discrediting the plaintiff’s testimony was harmless where the

ALJ gave valid reasons for partially discrediting the plaintiff’s

testimony); see also Tommasetti, 533 F.3d at 1038 (an ALJ’s error is

harmless “when it is clear from the record . . . that it was

‘inconsequential to the ultimate nondisability determination.’”).

B. Plaintiff’s Daughter’s Testimony

The ALJ’s determination that Plaintiff’s daughter’s testimony was

not supported by the objective evidence was a germane reason for finding

that the testimony lacked credibility. See Bayliss v. Barnhart, 427

F.3d 1211, 1218 (9th Cir. 2015)(inconsistency with the medical evidence

is a germane reason for discrediting the testimony of a lay witness);

Lewis, supra (“One reason for which an ALJ may discount lay testimony

is that it conflicts with medical evidence.”); Vincent v. Heckler, 739

11 F.2d 1393, 1395 (9th Cir. 1984)(“The ALJ properly discounted lay witness

12 testimony that conflicted with the available medical evidence.”).

14 B. The ALJ Properly Assessed the Opinions of Plaintiff’s Treating

Physicians, Sandra Alvarado, Ph.D. and Alan P. Moelleken, M.D.

16 Plaintiff asserts that the ALJ failed to properly assess the

17 opinions of two of Plaintiff’s treating physicians, Drs. Alvarado and

18 Moelleken. (See Joint Stip. at 13-18). Defendant asserts that the ALJ

properly considered the opinions of Drs. Alvarado and Moelleken (See

Joint Stip. at 16-17).

An ALJ must take into account all medical opinions of record. 20

C.F.R. § 404.1527(b). “Generally, a treating physician’s opinion

carries more weight than an examining physician’s, and an examining

physician’s opinion carries more weight than a reviewing physician’s.”

Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); see also

Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). The medical

opinion of a treating physician is given “controlling weight” so long

as it “is well-supported by medically acceptable clinical and laboratory

diagnostic techniques and is not inconsistent with the other substantial

evidence in [the claimant’s] case record.” 20 C.F.R. § 404.1527(c)(2).

“When a treating doctor’s opinion is not controlling, it is weighted

according to factors such as the length of the treatment relationship

and the frequency of examination, the nature and extent of the treatment

relationship, supportability, and consistency of the record.” Revels

v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017); see also 20 C.F.R. §

11 404.1527(c)(2)-(6).

13 If a treating or examining doctor’s opinion is not contradicted by

14 another doctor, the ALJ can reject the opinion only for “clear and

15 convincing reasons.” Carmickle, supra, 533 F.3d at 1164; Lester, 81

16 F.3d at 830. If the treating or examining doctor’s opinion is

17 contradicted by another doctor, the ALJ must provide “specific and

18 legitimate reasons” for rejecting the opinion. Orn v. Astrue, 495 F.3d

625, 632 (9th Cir. 2007); Reddick v. Chater, 157 F.3d 715, 725 (9th Cir.

1998); Lester, supra. “The ALJ can meet this burden by setting out a

detailed and thorough summary of the facts and conflicting clinical

evidence, stating his interpretation thereof, and making findings.”

Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017)(citation

omitted). Finally, when weighing conflicting medical opinions, an ALJ

may reject an opinion that is conclusory, brief, and unsupported by

clinical findings. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.

2015); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001).

1 1. Dr. Alvarado

In a Mental Impairment Questionnaire dated November 8, 2016, Sandra

Alvarado, Ph.D., a psychologist at Clinicas Del Camino Real, Inc.,

stated she had treated Plaintiff “[s]ince September 27th 2016 on a

biweekly basis.” (AR 1016). Dr. Alvarado diagnosed Plaintiff inter

alia with major depressive disorder, recurrent, severe; and stated that

Plaintiff’s signs and symptoms were anhedonia or pervasive loss of

interest in almost all activities, appetite disturbance with weight

change, decreased energy, thoughts of suicide, blunt, flat or

inappropriate affect, feelings of guilt or worthlessness, difficulty

thinking or concentrating, psychomotor agitation or retardation,

apprehensive expectation, memory impairment in the short, intermediate

or long term, and sleep disturbance. (AR 1016-17).9 Dr. Alvarado

16 found, inter alia, that Plaintiff’s impairments or treatment would cause

17 Plaintiff to be absent from work for an average of more than four days

18 per month and Plaintiff would have difficulty working at a regular job

19 on a sustained basis because of “[l]imited movement due to chronic pain

20 and not feeling well due to diabetes” which “make [Plaintiff’s]

21 depression worse[.]” (AR 1018).

The ALJ addressed Dr. Alvarado’s opinions as follows:

The undersigned gives little weight to the opinions of the

9 Dr. Alvarado stated that the clinical findings demonstrating

the severity of Plaintiff’s mental impairment and symptoms were

“impaired memory (not remembering details at appointments) and depressed

affect.” (AR 1021).

1 claimant’s treating psychologist at Exhibits 20F and 21F as

2 the extreme limitations therein are inconsistent with the

record showing no mental health treatment notes that showed

severe symptoms unmanageable with normal treatment.

Furthermore, this provider only recently started seeing the

claimant, and thus, does not have a longitudinal relationship

with the claimant.

(AR 35).

Since the ALJ did not find that Dr. Alvarado’s opinions were

contradicted by another physician’s opinion, the ALJ was required to

provide “clear and convincing” reasons for rejecting Dr. Alvarado’s

15 opinions. See Trevizo, supra.

17 The ALJ properly rejected Dr. Alvarado’s opinions because her

18 opinions, particularly her opinion concerning the average number of work

19 days per month Plaintiff would miss, was inconsistent with the medical

20 record which reflected that Plaintiff’s mental health issues were caused

21 or precipitated by the pain she suffered from her injury. (see AR 355

22 [The Spine and Orthopedic Center, Progress Report dated December 11,

2013, noting: “She also expresses depression and admits suicidal

ideation. She states that the pain from her industrial injury has led

to her depression, insomnia, decreased energy, appetite fluctuations,

decreased concentration.”], AR 339 [The Spine and Orthopedic Center,

Progress Report dated January 13, 2014, noting: “She continues with Dr.

Malkani for urinary incontinence issues. On 12/11/13, Dr. Malkani sent

1 the patient to the ER for suicidal ideations. He has started her on

2 Venlafaxine 37.5mg qd. She reports this medication is working well for

her and she denies any suicidal ideations at this time.”], AR 929

[Letter from Kristin Wilkerson, PMHNP, at Clinicas Del Camino Real, Inc.

dated November 4, 2016, stating that she first provided mental health

treatment for Plaintiff on September 16, 2016, Plaintiff obtained

follow-up treatment on October 14, 2016 (at which medication was

prescribed), and Plaintiff was scheduled for follow-up treatment on

November 9, 2016]). See Morgan v. Comm’r of Soc. Sec., 169 F.3d 595,

603 (9th Cir. 1999)(“The ALJ is responsible for resolving conflicts in

medical testimony, and resolving ambiguity.”); see also 20 C.F.R. §

404.1527(d)(3)(“The more a medical source presents relevant evidence to

support a medical opinion, particularly medical signs and laboratory

15 findings, the more weight we will give that medical opinion. The better

16 an explanation a source provides for a medical opinion, the more weight

17 we will give that medical opinion.”); 20 C.F.R. § 404.1527(d)(4)

18 (“Generally, the more consistent a medical opinion is with the record

19 as a whole, the more weight we will give to that medical opinion.”).

20 This was a clear and convincing reason for discounting Dr. Alvarado’s

21 opinions.

The ALJ also properly rejected Dr. Alvarado’s opinions based on the

short length of time, and the limited number of times, Dr. Alvarado

treated Plaintiff (from September 27, 2016 to November 8, 2016, at most

four times, see AR 1016). See 20 C.F.R. § 404.1527(c)(2)(i)

(“Generally, the longer a treating source has treated you and the more

times you have been seen by a treating source, the more weight we will

1 give to the source’s medical opinion.”); compare Rose v. Berryhill, 256

2 F.Supp.3d 1079, 1089-90 (C.D. Cal. 2017)(finding that the treating

physician’s treatment of the plaintiff 7 times during an 8-month period

was long enough for the treating physician to obtain a longitudinal

picture of the plaintiff’s impairment).

2. Dr. Moelleken

Allan P. Moelleken, M.D., treated Plaintiff in connection with her

Workers’ Compensation claim from February 12, 2013 to January 14, 2014.

(See AR 335-484). More than two years later, on March 25, 2016, Dr.

Moelleken treated Plaintif during a follow-up visit, prescribing

medications and referring Plaintiff to a pain management consultation.

15 (See AR 694-96, 826-32).

17 Plaintiff submitted a one-page form from Dr. Moelleken, dated July

18 1, 2016, to the Appeals Council. (See AR 42).10 The Appeals Council

19 addressed the submitted form, stating: “The Administrative Law Judge

20 decided your case through June 30, 2015. This additional evidence does

21 not relate to the period at issue. Therefore, it does not affect the

22 decision about whether you were disabled beginning on or before June 30,

2015.” (AR 2).

10 Dr. Moelleken opined that Plaintiff is likely to be “off task”

25 percent or more of the time, Plaintiff is capable of low stress work

(because “pain level affect[s] stress”), Plaintiff’s impairments are

likely to produce “good days” and “bad days”, Plaintiff is likely to be

absent from work about four days per month as a result of the

impairments or treatment, and Plaintiff’s impairments are reasonably

consistent with her symptoms and functional limitations.

1 As Respondent asserts (see Joint Stip. at 16), Plaintiff has waived

2 this issue because although she was represented by counsel she did not

allege to the Appeals Council that the ALJ failed to provide a reason

for rejecting Dr. Moelleken’s opinions (see AR 319-20). See Shaibi v.

Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2017)(plaintiff, when

represented by counsel, waived a challenge on appeal when plaintiff

failed to raise the issue during administrative proceedings before the

Social Security Administration); see also Meanel v. Apfel, 172 F.3d 1111

(9th Cir. 1999)(“We now hold that, at least when claimants are

represented by counsel, they must raise all issues and evidence at their

administrative hearings in order to preserve them on appeal.”).

Nevertheless, since the Appeals Council appears to have looked at

15 Dr. Moelleken’s form while not explicitly considering it, the form is

16 a part of the Administrative Record and must be considered by the Court

17 in reviewing the ALJ’s decision. See Brewes v. Comm’r of Soc. Sec.

18 Admin., 682 F.3d 1157, 1163 (9th Cir. 2012)(“[W]hen the Appeals Council

19 considers new evidence in deciding whether to review a decision of the

20 ALJ, that evidence becomes part of the administrative record, which the

21 district court must consider when reviewing the Commissioner’s final

22 decision for substantial evidence.”).

Dr. Moelleken’s opinion form, completed on July 1, 2016, does not

relate to the ALJ’s determination of Plaintiff’s nondisability for the

the period at issue (November 18, 2012 to June 30, 2015) since there is

no indication that Dr. Moelleken’s opinion covers a period prior to

2016. Moreover, the checkbox form does not provide any clinical findings

1 supporting Dr. Moelleken’s opinions. See Thomas v. Barnhart, 278 F.3d

2 947, 957 (9th Cir. 2002)(“The ALJ need not accept the opinion of any

physician including the treating physician, if that opinion is brief,

conclusory, and inadequately supported by clinical findings.”).

C. The ALJ Properly Determined That Plaintiff Could Perform Past

7 Relevant Work as a Small Products Assembler

Plaintiff asserts that the ALJ failed to properly determine that

Plaintiff could perform her past relevant work as a small products

assembler because (1) it was not clear from Plaintiff’s testimony

(particularly her testimony about her airplane parts assembler job) that

she worked as a small products assembler, and (2) the ALJ did not ask

the VE whether there was any conflict between the RFC (specifically,

15 pushing/pulling frequently but not constantly, occasional interaction

16 with coworkers, supervisors and the public, and employed in a low stress

17 job) and the Dictionary of Occupational Titles (“DOT”) description of

18 the small products assembler occupation. (See Joint Stip. at 18-22).

19 Defendant asserts that the ALJ properly found that Plaintiff could

20 perform her past relevant work as a small products assembler as

21 generally and actually performed, and that any error by the ALJ in

22 asking the VE about a conflict between the RFC and the DOT was harmless.

(See Joint Stip. at 20-21).

As noted above, Plaintiff testified that she is unable to do her

past assembler jobs (antennas, watches) because she cannot sit or stand

for a long time. (AR 62-63). When the VE attempted to clarify

Plaintiff’s past assembler jobs, Plaintiff stated that she had a third

1 past assembler job (airplane parts). (AR 64-65; see also AR 232, 242).

2 Plaintiff also testified that at her past assembler jobs she could

choose to either sit on a stool or stand. (AR 65).

The VE testified that even though Plaintiff did different things

at her past assembler jobs, the duties she performed corresponded to the

job of small products assembler (DOT 706.684-022, light work, Specific

Vocational Preparation 2)11, noting that Plaintiff’s past assembler jobs

allowed a sit/stand option and did not require lifting over 10 pounds,

and that all of Plaintiff’s past assembler jobs seemed to have the same

exertional requirements. (See AR 66-67). Plaintiff testified that she

11 DOT 706.684-022 Assembler, Small Products I, states, in

pertinent part:

Performs any combination of following repetitive tasks on

assembly line to mass produce small products, such as ball

bearings, automobile door locking units, speedometers,

condensers, distributors, ignition coils, drafting table

subassemblies, or carburetors: Positions parts in specified

relationship to each other, using hands, tweezers, or tongs.

Bolts, screws, clips, cements or otherwise fastens parts

together by hand or using handtools or portable powered tools.

Frequently works at bench as member of assembly group

assembling one or two specific parts and passing unit to

another worker. Loads and unloads previously setup machines,

such as arbor presses, drill presses, taps, spot-welding

machines, riveting machines, milling machines, or broaches, to

perform fastening, force fitting, or light metal cutting

operation on assembly line. May be assigned to different work

stations as production needs require or shift from one station

to another to reduce fatigue factor. May be known according

to product assembled.

STRENGTH: Light work - Exerting up to 20 pounds of force

occasionally (Occasionally: activity or condition exists up to

1/3 of the time) and/or up to 10 pounds of force frequently

(Frequently: activity or condition exists from 1/3 to 2/3 of

the time) and/or a negligible amount of force constantly

(Constantly: activity or condition exists 2/3 or more of the

time) to move objects. Physical demand requirements are in

excess of those for Sedentary Work.

1 performed the assembler job putting together watches beginning in 2001

2 and thereafter performed the assembler job putting together antennas.

(AR 67).

The VE testified that a hypothetical person -- approaching advanced

age, limited education, with Plaintiff’s RFC -- could do Plaintiff’s

past assembler jobs. (See AR 68-70).

The ALJ found, based on the VE’s testimony about Plaintiff’s past

relevant work (small products assembler [DOT 706.684-022, light

exertional level, SVP 2) and Plaintiff’s ability to perform her past

relevant work given Plaintiff’s RFC, that Plaintiff was able to perform

her past relevant work as actually and generally performed. (See AR

15 35).

17 Plaintiff contends that the ALJ erred in finding that Plaintiff

18 could perform past relevant work as a small products assembler because

19 her past assembler job for airline parts, under DOT 806.381-022

20 [Assembler, Aircraft Power Plant], 806.381-026 [Assembler, Aircraft,

21 Structures and Surfaces], and 806.361-014 [Assembler-Installer,

22 Generally], requires a medium exertional level. (See Joint Stip. at 18-

19). The Court disagrees.

The ALJ did not err in finding that Plaintiff could perform past

relevant work as a small products assembler as actually and generally

performed because the testimony and statements provided by Plaintiff

1 about her past assembler jobs was consistent with the small products

2 assembler job identified in DOT 706.684-022. See AR 233 [“I would

perform the mechanical assembly of antenna parts. I would have to place

the parts in a machine that would show whether it worked or not.”; When

asked about lifting and carrying, Plaintiff stated, “They were small

parts that would be reviewed to make sure they operated the way that

they were supposed to.”; and Plaintiff stated that the heaviest weight

she lifted was less than 10 pounds and that she frequently lifted less

than 10 pounds.], AR 65 [Plaintiff testified at the hearing that at her

past assembly jobs she could sit on or a stool or stand up, whatever she

chose], AR 232 [“I worked for an airplane part manufacturing, we would

assemble the airplane parts.”; “Most of the parts were not large and did

not weigh that much.”; The heaviest weight Plaintiff lifted was 10

15 pounds, and Plaintiff frequently lifted less than 10 pounds], AR 242

16 [“[P]arts for airplanes, assembling parts together”; “We didn’t carry

17 anything[,] parts were small; The heaviest weight Plaintiff lifted was

18 less than 10 pounds, and Plaintiff frequently lifted less than 10

19 pounds]).

21 Plaintiff also contends that the ALJ erred in failing to ask the

22 VE whether there was any conflict between the RFC (specifically,

pushing/pulling frequently but not constantly, occasional interaction

with coworkers, supervisors and the public, and employed in a low stress

job) and the DOT 706.684-022 description of the small products assembler

1 occupation. (See Joint Stip. at 19-22).12

An ALJ may not rely on a vocational expert’s testimony regarding

the requirements of a particular job without first inquiring whether the

testimony conflicts with the DOT, and if so, why it conflicts. Massachi

v. Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 2007)(citing Social Security

Ruling 00-4p).

However, since the DOT for the job of small products assembler does

not address the pushing/pulling, interaction, and stress level

limitations, as Plaintiff acknowledges (see Joint Stip. at 19), there

was no conflict between the VE’s testimony and the DOT. See e.g., Dewey

v. Colvin, 650 Fed.Appx. 512, 514 (9th Cir. 2016); McDaniel v. Colvin,

15 2017 WL 1399629, *5 (C.D. Cal. Apr. 18, 2017)(“[T]here can be no

16 conflict between the vocational expert’s testimony and the DOT where,

17 as here, the DOT is silent on the subject in question.”; citation

18 omitted).

20 Therefore, the ALJ did not err in relying on the VE’s testimony

21 that Plaintiff was able to perform her past small products assembly job

22 as actually and generally performed.

27 12 The Court will address the merits of Plaintiff’s assertion,

even though, as Defendant contends, Plaintiff has waived this issue (see

28 Joint Stip. at 20-21).

1 ORDER

For the foregoing reasons, the decision of the Commissioner is

AFFIRMED.

LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: August 14, 2019

/s/

12 ALKA SAGAR

UNITED STATES MAGISTRATE JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.