Robinson v. Saul, No. 2:2020cv00258 - Document 21 (E.D. Wash. 2021)
Court Description: ORDER GRANTING 19 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; denying 17 Plaintiff's Motion for Summary Judgment. File Closed. Signed by Magistrate Judge John T. Rodgers. (TR, Case Administrator)
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Robinson v. Saul Doc. 21 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON Jun 28, 2021 1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF WASHINGTON SEAN F. MCAVOY, CLERK 3 4 5 6 7 8 9 10 11 JED R., No. 2:20-CV-0258-JTR ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Plaintiff, v. ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY, Defendant. 12 13 BEFORE THE COURT are cross-motions for summary judgment. ECF 14 No. 17, 19. Attorney Bryant A. Sutton represents Jed R. (Plaintiff); Special 15 Assistant United States Attorney Sarah L. Martin represents the Commissioner of 16 Social Security (Defendant). The parties have consented to proceed before a 17 magistrate judge. ECF No. 6. After reviewing the administrative record and the 18 briefs filed by the parties, the Court GRANTS Defendant’s Motion for Summary 19 Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 20 21 JURISDICTION Plaintiff filed an application for Supplemental Security Income in February 22 2018, alleging disability since December 1, 2016, due to “diabetes, stroke and 23 heart.” Tr. 184, 199. The application was denied initially and upon 24 reconsideration. Administrative Law Judge (ALJ) Glenn G. Meyers held a hearing 25 on November 7, 2019, Tr. 42-93, and issued an unfavorable decision on November 26 20, 2019, Tr. 27-37. The Appeals Council denied Plaintiff’s request for review on 27 May 27, 2020. Tr. 1-6. The ALJ’s November 2019 decision thus became the final 28 decision of the Commissioner, which is appealable to the district court pursuant to ORDER GRANTING DEFENDANT’S MOTION . . . - 1 Dockets.Justia.com 1 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review on July 23, 2020. 2 ECF No. 1. 3 4 STATEMENT OF FACTS Plaintiff was born on May 26, 1980, Tr. 47, 184, and was 37 years old on the 5 disability application date, February 26, 2018. He did not complete high school 6 and has not obtained a GED. Tr. 200. He has also never obtained a driver’s 7 license. Tr. 47-48. Plaintiff’s disability report indicates he stopped working on 8 June 1, 2011, and believes his condition became severe enough to prevent him 9 from working on December 1, 2016. Tr. 199. 10 Plaintiff testified at the administrative hearing on November 7, 2019, that he 11 has difficulty seeing with his right eye and is not able to see with his left eye as a 12 result of complications from diabetes. Tr. 55, 71. With respect to his right eye, he 13 had recently undergone cataract surgery (October 13, 2019), and the surgery had 14 improved his vision. Tr. 51-52. He stated his vision was completely blurred prior 15 to the surgery, but he was now able to watch television shows and move about 16 without assistance. Tr. 52-53. Plaintiff initially testified that, despite cataract 17 surgery, he continued to be unable to read out of his right eye. Tr. 52, 53. 18 However, during his later testimony regarding chemical dependency counselling 19 and treatment, he indicated he would read “the big book” three or four times a 20 week for about an hour each time. Tr. 65-66, 69. 21 Plaintiff indicated at the hearing he was having gastrointestinal issues, 22 including problems with vomiting and indigestion, Tr. 56, 77-79, and had recently 23 started receiving mental health treatment for depression and anxiety, Tr. 60-61, 63, 24 70. Plaintiff explained that following a significant late-2016 motor vehicle 25 accident, he experienced two or three strokes and the third stroke caused him to 26 lose the ability to speak. Tr. 72. He indicated he is now able to speak normally, 27 but there are times when he struggles. Tr. 73. He also stated he is unable to move 28 his left arm much and has a loss of feeling (tingling and numbness) in his left hand. ORDER GRANTING DEFENDANT’S MOTION . . . - 2 1 Tr. 73-74. He has difficulty grasping and lifting with his left arm. Tr. 73-74. 2 Plaintiff testified he also has cellulitis, a painful skin condition, Tr. 74-76, stomach 3 and skin ulcers, Tr. 80, and neuropathy, Tr. 80-81. 4 5 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 6 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 7 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 8 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 9 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 10 only if it is not supported by substantial evidence or if it is based on legal error. 11 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 12 defined as being more than a mere scintilla, but less than a preponderance. Id. at 13 1098. Put another way, substantial evidence is such relevant evidence as a 14 reasonable mind might accept as adequate to support a conclusion. Richardson v. 15 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 16 rational interpretation, the Court may not substitute its judgment for that of the 17 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 18 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 19 administrative findings, or if conflicting evidence supports a finding of either 20 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 21 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 22 supported by substantial evidence will be set aside if the proper legal standards 23 were not applied in weighing the evidence and making the decision. Brawner v. 24 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 25 26 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 27 for determining whether a person is disabled. 20 C.F.R. § 416.920(a); Bowen v. 28 Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the claimant ORDER GRANTING DEFENDANT’S MOTION . . . - 3 1 bears the burden of establishing a prima facie case for disability benefits. Tackett, 2 180 F.3d at 1098-1099. This burden is met once a claimant establishes that a 3 physical or mental impairment prevents the claimant from engaging in past 4 relevant work. 20 C.F.R. § 416.920(a)(4). If a claimant cannot perform past 5 relevant work, the ALJ proceeds to step five, and the burden shifts to the 6 Commissioner to show (1) the claimant can make an adjustment to other work; and 7 (2) the claimant can perform specific jobs that exist in the national economy. 8 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193-1194 (9th Cir. 2004). 9 If a claimant cannot make an adjustment to other work in the national economy, 10 11 12 13 14 15 the claimant will be found disabled. 20 C.F.R. § 416.920(a)(4)(v). ADMINISTRATIVE DECISION On November 20, 2019, 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 February 26, 2018, the disability application date. Tr. 29. 16 At step two, the ALJ determined Plaintiff had the following severe 17 impairments: methamphetamine use disorder, in remission; diabetes mellitus; 18 hypertension; cerebrovascular accident; vision disorders; speech disorder; and 19 congestive heart failure. Tr. 29. 20 At step three, the ALJ found Plaintiff did not have an impairment or 21 combination of impairments that meets or medically equals the severity of one of 22 the listed impairments. Tr. 30. 23 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found 24 Plaintiff could perform sedentary exertional level work with the following 25 limitations: he is capable of engaging in unskilled, repetitive, routine tasks in two- 26 hour increments; he can occasionally reach overhead; he can frequently reach at or 27 below shoulder level; he can frequently handle and finger; he can have no contact 28 with the public, but is capable of working in proximity to, but not in coordination ORDER GRANTING DEFENDANT’S MOTION . . . - 4 1 with, coworkers; he can have occasional contact with supervisors; he can 2 occasionally stoop and crouch; he can never crawl, kneel, or climb ramps, stairs, 3 ropes, ladders, and scaffolds; he can never balance, drive, work at heights, 4 ambulate on uneven surfaces, or work in proximity to hazardous conditions; he can 5 never read print smaller than 12-point font; he will be 13% less productive than the 6 average worker in the workplace; and he will be absent from work one and one- 7 quarter days per month. Tr. 30. 8 9 10 At step four, the ALJ found Plaintiff was not able to perform his past relevant work as a laborer, poultry farms, or laborer, stores. Tr. 36. At step five, the ALJ determined that, based on the testimony of the 11 vocational expert, and considering Plaintiff’s age, education, work experience, and 12 RFC, Plaintiff was capable of making a successful adjustment to other work that 13 exists in significant numbers in the national economy, including the jobs of final 14 assembler,1 table worker and waxer. Tr. 36-37, 85. 15 The ALJ thus concluded Plaintiff was not under a disability within the 16 meaning of the Social Security Act at any time from February 26, 2018, the date 17 the disability application was filed, through the date of the ALJ’s decision, 18 November 20, 2019. Tr. 37. 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. 23 24 1 While the ALJ’s opinion omits “final assembler” as a stated job the 25 hypothetical individual with Plaintiff’s RFC could perform, see Tr. 37, the 26 vocational expert specifically identified this job, Tr. 85, and the DOT section cited 27 in the ALJ’s decision matches the position of final assembler, see Tr. 37 and 28 Dictionary of Occupation Titles, 1993 Edition, 713.687-018, Final Assembler. ORDER GRANTING DEFENDANT’S MOTION . . . - 5 Plaintiff raises the following issues for the Court’s review: (1) Did the ALJ 1 2 properly evaluate the medical opinion evidence from the treating, examining and 3 reviewing medical sources?; (2) Did the ALJ fail to properly evaluate the physical 4 and mental conditions affecting Plaintiff by failing to fully and fairly develop the 5 record as required by statute?; (3) Did the Appeals Council commit reversible error 6 by failing to consider Plaintiff’s “Exhibit A” protest of the ALJ Hearing Decision 7 before denying Plaintiff’s request for review?; and (4) Did the ALJ fail to meet his 8 burden at step five that the determination must be supported by substantial 9 evidence? ECF No. 17 at 8. DISCUSSION 10 11 12 A. Medical Source Opinion Evidence Plaintiff argues the ALJ is required to consider all medical opinions of 13 record and, here, the ALJ erred by considering the medical opinion evidence in a 14 “cherry picked” fashion. ECF No. 17 at 13-16. Defendant responds that Plaintiff 15 has not established error in the ALJ’s evaluation of the medical opinion evidence 16 of record. ECF No. 19 at 6-11. 17 The Court notes at the outset that the relevant time period in this action is 18 from February 26, 2018 (the date the disability application was filed) through 19 November 20, 2019 (the date of the ALJ’s determination in this case). Evidence 20 from outside of this period of time can be deemed useful as background 21 information; however, it is irrelevant to the extent that it does not address 22 Plaintiff’s medical status during the relevant period at issue in this action. See Fair 23 v. Bowen, 885 F.2d 597, 600 (9th Cir. 1989) (medical opinions that predate the 24 alleged onset of disability are of limited relevance). 25 The records of the medical providers specifically cited by Plaintiff in support 26 of his assertion are from 2016 (Lexie Zuver, DO, and Brett Hymas, PA-C), and 27 Plaintiff’s other citations to the record (Tr. 345, 421, 456, 312, 343, 370, 438) offer 28 no medical opinion regarding Plaintiff’s functioning. ECF No. 17 at 14-16. These ORDER GRANTING DEFENDANT’S MOTION . . . - 6 1 records provide little value to the assessment of Plaintiff’s overall functioning 2 during the relevant time period. 3 The ALJ addressed all medical opinions from the relevant time period in this 4 case and discussed the persuasiveness accorded to each medical professional. Tr. 5 34-36. 6 For claims filed on or after March 27, 2017, new regulations apply that 7 change the framework for how an ALJ must weigh medical opinion evidence. 8 Revisions to Rules Regarding the Evaluation of Medical Evidence, 2017 WL 9 168819, 82 Fed. Reg. 5844 (Jan. 18, 2017); 20 C.F.R. § 416.920c. The new 10 regulations provide the ALJ will no longer give any specific evidentiary weight to 11 medical opinions or prior administrative medical findings, including those from 12 treating medical sources. 20 C.F.R. § 416.920c(a). Instead, the ALJ will consider 13 the persuasiveness of each medical opinion and prior administrative medical 14 finding, regardless of whether the medical source is an acceptable medical source. 15 20 C.F.R. § 416.920c(c). The ALJ is required to consider multiple factors, 16 including supportability, consistency, the source’s relationship with the claimant, 17 any specialization of the source, and other factors (such as the source’s familiarity 18 with other evidence in the file or an understanding of Social Security’s disability 19 program). Id. The regulations make clear that the supportability and consistency 20 of the opinion are the most important factors, and the ALJ must articulate how she 21 considered those factors in determining the persuasiveness of each medical opinion 22 or prior administrative medical finding. 20 C.F.R. § 416.920a(b). The ALJ may 23 explain how she considered the other factors, but the ALJ is not required to except 24 in cases where two or more opinions are equally well-supported and consistent 25 with the record. Id. Supportability and consistency are further explained in the regulations as 26 27 follows: 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 7 (1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be. 1 2 3 4 (2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be. 5 6 7 8 9 20 C.F.R. § 416.920c(c). 10 On June 5, 2018, state agency physical consultant Gordon Hale, M.D., 11 reviewed the record and opined that Plaintiff was capable of performing light 12 exertion level work with visual and environmental limitations. Tr. 100-102. The ALJ did not find the opinion of Dr. Hale persuasive, noting it was not 13 14 supported by updated records and inconsistent with greater manipulative, 15 exertional, and social limitations reflected in the record. Tr. 34. On October 16, 2018, state agency reviewer Merry Alto, M.D., found that 16 17 Plaintiff could occasionally lift and/or carry 20 pounds, frequently lift and/or carry 18 10 pounds, stand and/or walk two hours out of an eight-hour workday, and sit for 19 six hours out of an eight-hour workday; and that Plaintiff had vision and 20 environmental limitations. Tr. 112-114. The ALJ determined the opinion of Dr. Alto was persuasive. Tr. 34. The 21 22 ALJ indicated Dr. Alto’s findings were consistent with the longitudinal record, 23 including largely unremarkable physical examinations with normal neurologic 24 functioning, full strength in his upper and lower extremities and a normal gait, 25 evidence Plaintiff’s vision condition had been responsive to treatment, and 26 Plaintiff’s noncompliance with treatment suggesting his symptoms were not as 27 severe as alleged. Tr. 34. 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 8 1 Plaintiff was examined by Gary Gaffield, DO, on May 24, 2018. Tr. 311- 2 315. Dr. Gaffield opined that Plaintiff was able to walk or stand for four hours out 3 of an eight-hour workday with adequate breaks, had no sitting limitations, could 4 lift and/or carry 20 pounds occasionally, and could lift and/or carry 10 pounds 5 frequently; Plaintiff’s manipulative activities were limited to frequent, but he had 6 no postural restrictions; and Plaintiff had environmental limitations and should 7 avoid communicating with others. Tr. 314. 8 The ALJ found Dr. Gaffield’s opinion persuasive as generally consistent 9 with the longitudinal record, Tr. 34-35; however, the ALJ noted the restriction of 10 no communication with others was not supported as Plaintiff displayed the ability 11 to interact appropriately with providers and had unremarkable speech on 12 examination, Tr. 35. 13 On July 17, 2019, Jo Prophet, A.R.N.P., Plaintiff’s primary care provider, 14 completed a Physical Functional Evaluation form. Tr. 506-508. As noted by the 15 ALJ, Nurse Prophet did not identify any functional limitations of Plaintiff 16 stemming from his impairments. Tr. 35. Accordingly, the ALJ did not find the 17 report of Ms. Prophet persuasive. 18 Finally, on July 22, 2019, a medical eye examination by ophthalmologist 19 was completed by Brian Roth, M.D. Tr. 510-511. Dr. Roth found Plaintiff had 20 20/200 vision in his right eye and was blind in his left eye, but that Plaintiff should 21 regain some vision in his right eye with cataract surgery. Id. The ALJ found the 22 opinion persuasive as supported by the examination and consistent with subsequent 23 evidence showing Plaintiff’s vision in his right eye improved following surgery. 24 Tr. 35. 25 Plaintiff has not specifically challenged the ALJ’s consideration of the 26 foregoing medical opinions. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 27 1155, 1161 (9th Cir. 2008) (the Court will not ordinarily consider matters on 28 appeal that were not specifically and distinctly argued in a party’s opening brief). ORDER GRANTING DEFENDANT’S MOTION . . . - 9 1 The Court nevertheless finds the ALJ properly assessed the persuasiveness of the 2 relevant medical opinion evidence in this case. The ALJ’s findings with respect to 3 the supportability and consistency of the medical opinion evidence is supported. 4 The Court finds the ALJ did not err in his assessment of the medical opinion 5 evidence of record, and the ALJ’s RFC determination is supported by substantial 6 evidence and free of legal error. 7 Although Plaintiff challenges the ALJ’s finding that Plaintiff’s uncontrolled 8 diabetes was based on noncompliance with treatment, ECF No. 17 at 14, this 9 finding is not only supported by the medical evidence of record, Tr. 311, 327, 332, 10 367, 375, 436, but also Plaintiff’s own testimony at the administrative hearing, Tr. 11 56, 59-60. In any event, the ALJ concluded Plaintiff’s diabetes was severe and, 12 combined with his other impairments, limited Plaintiff to a restricted range of 13 sedentary work. 14 Plaintiff additionally contests the ALJ’s description of Plaintiff’s physical 15 examination findings as “largely unremarkable.” ECF No. 17 at 16. Again, 16 however, the ALJ’s “largely unremarkable” finding is supported by and consistent 17 with the evidence of the record. While, as noted by Plaintiff, there was an 18 occasional reference to general weakness, Tr. 343, examination findings were 19 typically normal, i.e., normal gait, Tr. 275, 278, 285, 291, 313, 424, 458, normal 20 lower extremity function, Tr. 313, 320, 333, 381, 387, 397, and no sensory loss, Tr. 21 314, 333, 381, 387, 397. As indicated by the ALJ, when examined in May 2018, 22 Plaintiff had no problem moving around the room, 5/5 motor strength in his upper 23 and lower extremities, a normal range of motion throughout his musculoskeletal 24 system, normal neurologic findings, and negative Romberg signs, Tr. 313; when 25 examined in July 2018, Plaintiff had a full range of motion in his upper and lower 26 extremities, was alert and oriented, and had normal speech, Tr. 319; when 27 examined in September 2018, Plaintiff had normal neurologic findings, was alert 28 and oriented, had a normal range of motion, and had a normal gait, Tr. 424; and ORDER GRANTING DEFENDANT’S MOTION . . . - 10 1 when examined in February 2019, he had normal neurologic findings, normal 2 range of motion, and normal gait, Tr. 458. Tr. 32. Contrary to Plaintiff’s 3 assertion, the ALJ did not mischaracterize the record. 4 B. Duty to Develop the Record 5 Plaintiff contends the ALJ erred by failing to meet his duty to develop the 6 record with respect to Plaintiff’s mental health condition. ECF No. 17 at 16-18. 7 Defendant responds that further development was unnecessary as Plaintiff 8 identified no ambiguities or inadequacy in the evidence. ECF No. 19 at 14-15. 9 It is Plaintiff’s duty to prove disability. See 20 C.F.R. § 404.1512(a). 10 Although Plaintiff ultimately bears the burden of establishing his disability, the 11 ALJ has an affirmative duty to supplement Plaintiff’s medical record, to the extent 12 it is incomplete, before rejecting his claim. See Brown v. Heckler, 713 F.2d 441, 13 443 (9th Cir. 1983) (“In Social Security cases the ALJ has a special duty to fully 14 and fairly develop the record and to assure that the claimant’s interests are 15 considered.”). However, an ALJ’s duty to develop the record is triggered only 16 when there is ambiguous evidence or when the record is inadequate to allow for 17 proper evaluation of the evidence. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th 18 Cir. 2001). 19 Plaintiff indicated at the administrative hearing he had recently (two months 20 prior to the hearing) started receiving mental health treatment for depression and 21 anxiety. Tr. 60-61, 63, 70. Plaintiff did not, however, initially allege a mental 22 condition as a basis for disability in this case. See Tr. 199. Moreover, an 23 impairment is considered disabling only if it is expected to result in death or can be 24 expected to last for a continuous period of not less than 12 months. See 42 U.S.C. 25 §§ 423(d)(1)(A), 1382c(a)(3)(A). In any event, Plaintiff testified his mental health 26 symptoms were “a lot better” since entering treatment, Tr. 63, 70, and, as noted by 27 Defendant, ECF No. 19 at 14, the record reflects normal mental status 28 examinations, Tr. 320, 424, 458. ORDER GRANTING DEFENDANT’S MOTION . . . - 11 1 The Court finds the record before the ALJ was neither ambiguous nor 2 inadequate to allow for proper evaluation of the evidence. The ALJ did not err by 3 failing to further develop the record in this case. 4 C. Evidence Before the Appeals Council 5 Plaintiff asks that this Court find the Appeals Council erred and committed 6 a due process violation by failing to consider Plaintiff’s “Exhibit A” and attached 7 medical note, Tr. 8-20, before denying Plaintiff’s request for review. ECF No. 17 8 at 18. Defendant responds that this Court does not have jurisdiction to review the 9 Appeals Council’s declination to review the ALJ’s decision. ECF No. 19 at 11-14. The Social Security Act provides for federal court review of final decisions 10 11 of the Commissioner. Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1161 12 (9th Cir. 2012). Because an Appeals Council’s denial of a request for review of an 13 ALJ’s decision is a non-final agency action, this Court lacks jurisdiction to review 14 a decision of the Appeals Council. Id. citing Taylor v. Comm’r of Soc. Sec. 15 Admin., 659 F.3d 1228, 1231 (9th Cir. 2011). When the Appeals Council declines 16 review, “the ALJ’s decision becomes the final decision of the Commissioner,” and 17 that final decision includes the Appeals Council’s denial of review and any 18 additional evidence considered by the Appeals Council. Brewes, 682 F.3d at 1161- 19 1162. This Court reviews that final decision for substantial evidence. 20 Therefore, this Court does not have jurisdiction to review the Appeals 21 Council’s decision to deny Plaintiff’s request for review. Furthermore, since 22 Plaintiff’s brief and treatment note have been made part of the administrative 23 record at Tr. 8-20, and these materials2 are considered by this Court as part of its 24 25 2 The Court has reviewed “Exhibit A” and the progress note from August 26 2019 by Richard Hourigan, M.D., Tr. 8-20, and finds these materials do not 27 demonstrate Plaintiff has greater limitations than those assessed by the ALJ in this 28 case. ORDER GRANTING DEFENDANT’S MOTION . . . - 12 1 review and determination as to whether the ALJ’s decision was supported by 2 substantial evidence, Plaintiff has failed to identify a due process violation. 3 D. Step Five 4 Plaintiff contends the ALJ erred at Step Five because the vocational 5 expert’s testimony upon which the ALJ relied does not actually capture Plaintiff’s 6 limitations. ECF No. 17 at 18-19. Defendant responds that the ALJ’s conclusion 7 that Plaintiff was capable of performing a significant number of jobs in the national 8 economy at Step Five is supported by substantial evidence. ECF No. 19 at 15-17. 9 At Step Five, “the Commissioner has the burden ‘to identify specific jobs 10 existing in substantial numbers in the national economy that [a] claimant can 11 perform despite [his] identified limitations.’” Zavalin v. Colvin, 778 F.3d 842, 845 12 (9th Cir. 2015) (quoting Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995)). 13 The Commissioner considers the claimant’s RFC, age, education, and work 14 experience in order to determine if the claimant is able to perform a job in the 15 national economy. 20 C.F.R. § 416.920(a). The ALJ may also rely on the 16 testimony of a vocational expert for information on what occupations a claimant 17 can perform given his or her RFC. 20 C.F.R. § 416.966(e); Valentine v. Comm’r 18 Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). 19 Plaintiff asserts the ALJ erred by fine tuning Plaintiff’s absenteeism and loss 20 of production limitations to be precisely within the bounds of employability. ECF 21 No. 17 at 19-20. However, Plaintiff has not identified a specific contradiction with 22 the ALJ’s assessment of Plaintiff’s absenteeism and loss of production limitations. 23 Moreover, although there is no requirement in the regulations for a direct 24 correspondence between an RFC finding and a specific medical opinion, the ALJ’s 25 findings that Plaintiff would be 13% less productive than the average worker and 26 would be absent from work one and one-quarter days per month provides for 27 greater limitations than assessed by any medical professional of record. See 28 Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (the ALJ ORDER GRANTING DEFENDANT’S MOTION . . . - 13 1 is responsible for translating and incorporating clinical findings into a succinct 2 RFC); Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012). 3 Plaintiff has not demonstrated that the ALJ erred with respect to his analysis 4 of the medical opinion evidence of record or that the ALJ’s RFC determination 5 lacks support. The Court finds the ALJ’s RFC determination is supported by 6 substantial evidence in this case. 7 At the administrative hearing, the vocational expert testified that with the 8 RFC assessed by the ALJ, Plaintiff retained the capacity to perform a significant 9 number of jobs existing in the national economy, including the positions of final 10 assembler, table worker, and waxer. Tr. 82-83, 85, 88. Since the vocational 11 expert’s testimony was based on a properly supported RFC determination by the 12 ALJ, the Court finds the ALJ did not err at step five of the sequential evaluation 13 process in this case. 14 CONCLUSION 15 Having reviewed the record and the ALJ’s findings, the Court finds the 16 ALJ’s decision is supported by substantial evidence and free of error. 17 Accordingly, IT IS HEREBY ORDERED: 18 19 1. Defendant’s Motion for Summary Judgment, ECF No. 19, is GRANTED. Plaintiff’s Motion for Summary Judgment, ECF No. 17, is DENIED. 20 2. 21 IT IS SO ORDERED. The District Court Executive is directed to file this 22 Order and provide a copy to counsel for Plaintiff and Defendant. Judgment shall 23 be entered for Defendant and the file shall be CLOSED. 24 DATED June 28, 2021. 25 26 27 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 14
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