Michael Turner v. Nancy Berryhill , 693 F. App'x 722 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 18 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL ANTHONY TURNER, No. 15-56844
Plaintiff-Appellant, D.C. No. 5:15-cv-00020-KES
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Karen E. Scott, Magistrate Judge, Presiding
Submitted June 6, 2017**
Pasadena, California
Before: BEA and HURWITZ, Circuit Judges, and MOTZ,*** District Judge.
Michael Turner appeals the district court’s order affirming the
Administrative Law Judge’s (ALJ) denial of social security disability benefits. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable J. Frederick Motz, United States District Judge for the
District of Maryland, sitting by designation.
The ALJ’s decision not to include an attendance-based limitation in Turner’s
residual function capacity (RFC) assessment was supported by substantial evidence
in the record. The ALJ is responsible for resolving ambiguities in the medical
evidence and for translating and incorporating medical opinions into a succinct
RFC assessment. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008);
Rounds v. Comm’r of Soc. Sec., 807 F.3d 996, 1006 (9th Cir. 2015). Dr. Abejuela
opined that Turner’s mental limitations “range from none to mild.” Drs. Barrons
and Phillips opined that Turner was “not significantly limited” in his ability to
“perform activities within a schedule, maintain regular attendance, and be punctual
within customary tolerances.” The ALJ gave “some weight to” the opinions of
Drs. Abejuela, Barrons, and Phillips as related to Turner’s mental health
limitations. The opinions of these physicians did not contradict that of Dr. Kikani
because Dr. Kikani did not specify that Turner’s difficulties with attendance would
lead him to miss a certain number of days of work each month or would otherwise
undermine his ability to work. Moreover, Drs. Phillips and Barrons expressly
relied on Dr. Kikani’s opinion in reaching their own conclusions.1
1
Other record evidence also supports the ALJ’s conclusion as Turner admitted to
conducting a wide range of activities, such as child care, personal care, household
chores, and regularly attending church. He also attended two ALJ hearings and
“came on time for his appointment” with Dr. Abejuela. These activities suggest
that Turner is capable of regularly attending to necessary matters, such that any
impairment he has with respect to attendance would not limit his ability to work
and, therefore, need not be included in the RFC assessment.
2
None of the legal authorities presented by Turner compels a different
conclusion. Although 20 C.F.R. § 404.1520a discusses a rating scale to be used by
the Social Security Administration (SSA) in evaluating mental work limitations,
this regulation does not provide definitions to be used by an ALJ in interpreting the
language of a medical opinion presented as part of a disability claim. See 20
C.F.R. §§ 404.1520a(c), (d). Similarly, the Social Security Program Operations
Manual System (POMS) sections that Turner cites merely discuss the term
“moderately limited” in the context of a standardized check-box form (SSA-4734-
F4-SUP) for evaluating physicians. See POMS DI 24510.060(B)(2)(c) (listing, but
not defining, the term “moderately limited”); POMS DI 24510.063(B)(2) (defining
the term “moderately limited” as an impaired “capacity to perform the activity”).
Dr. Kikani did not fill out form SSA-4734-F4-SUP, but rather wrote out her
opinion on her office letterhead. There is no indication that Dr. Kikani relied on
form SSA-4734-F4-SUP in conducting her evaluation. Even if Dr. Kikani had
relied on this form, that Turner had an impaired “capacity to perform the activity”
(of attendance) does not answer the ultimate question of whether this impairment
undermined his ability to work for purposes of a RFC assessment.
AFFIRMED.
3