Maria Ruiz v. Nancy Berryhill ( 2018 )

FILED
NOT FOR PUBLICATION
MAY 09 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA DELOSANGELES RUIZ, No. 16-56163
Plaintiff-Appellant, D.C. No. 5:15-cv-01378-JVS-JEM
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted March 7, 2018
Pasadena, California
Before: GRABER, W. FLETCHER, and OWENS, Circuit Judges.
Plaintiff-Appellant Maria Delosangeles Ruiz (“Appellant”) appeals from the
district court’s decision affirming the Commissioner of Social Security’s
(“Commissioner”) denial of her application for disability insurance benefits under
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Title II of the Social Security Act, 42 U.S.C. § 401 et seq. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
We review a district court’s order upholding the Commissioner’s denial of
benefits de novo. See Carillo-Yeras v. Astrue, 671 F.3d 731, 734 (9th Cir. 2011).
We only affirm the Commissioner’s decision if it is supported by substantial
evidence and not based on legal error. Id. Factual determinations are supported by
substantial evidence when there is relevant evidence that a reasonable person could
find adequate to support a conclusion. Howard ex rel. Wolff v. Barnhart, 341 F.3d
1006, 1011 (9th Cir. 2003). An Administrative Law Judge’s (“ALJ”) credibility
findings must be supported by specific, cogent reasons. See Greger v. Barnhart,
464 F.3d 968, 972 (9th Cir. 2006). On review, we uphold credibility
determinations unless they are “inherently incredible or patently unreasonable.”
Relaw Broad. Co. v. NLRB, 53 F.3d 1002, 1006 (9th Cir. 1995) (citation and
internal quotation marks omitted).
The ALJ properly evaluated Appellant’s ability to perform her past relevant
work at step four of the five-step sequential process for disability determinations.
See 20 C.F.R. § 404.1520. At step four, the ALJ determines whether a claimant’s
impairment prevents her from doing past relevant work. Pinto v. Massanari, 249
F.3d 840, 844-45 (9th Cir. 2001). Here, the ALJ determined that Appellant could
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perform her past relevant work as a sewing machine operator. Appellant argues
that the ALJ’s conclusion is legally erroneous because he failed to resolve the
conflict between the vocational expert’s (“VE”) testimony that Appellant could
perform her past work as a sewing machine operator, as generally performed, and
the requirements of that vocation in the Dictionary of Occupational Titles
(“DOT”). No legal error is apparent. Though “an ALJ is required to investigate
and resolve any apparent conflict between the VE’s testimony and the DOT,”
Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2018), a conflict is apparent only
if the challenged vocational requirement is “essential, integral, or expected” for the
job, Gutierrez v. Colvin, 844 F.3d 804, 808 (9th Cir. 2016). The DOT’s 02
Language Development Level for a sewing machine operator lists requirements
including writing cursive, reading 190-215 words per minute, and having a passive
vocabulary of 5,000-6,000 words. DOT § 787.682-030, App. C. Though the
record suggests Appellant does not have those English language capabilities, it is
not obvious that the language requirements are essential, integral, or expected for
the work of a sewing machine operator.
The ALJ properly evaluated Appellant’s residual functional capacity
(“RFC”) for a modified range of light work. Appellant contends that her RFC is
not supported by substantial evidence because the ALJ improperly rejected the
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opinions of her treating physician Dr. Thomas Grogan, improperly rejected her
subjective symptom testimony, and relied on a hypothetical for the VE that erred in
rejecting both as well.
The ALJ provided specific, legitimate reasons, supported by substantial
evidence, for rejecting Dr. Grogan’s opinion that Appellant was permanently
disabled and unable to work. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir.
1996). Dr. Grogan’s disability determinations were not consistently supported by
independent examination findings and did not consider Appellant’s past relevant
work as a sewing machine operator. In one instance, Dr. Grogan determined that
Appellant’s physical limitations left her permanently disabled only from
conducting her past work as a driver and distributor. In another instance, Dr.
Grogan used a check-off form to indicate much more severe limitations that
mirrored Appellant’s subjective complaints and that were not supported by
independent examination findings. See Molina v. Astrue, 674 F.3d 1104, 1111 (9th
Cir. 2012) (explaining that an ALJ may “permissibly reject[ ] . . . check-off reports
that [do] not contain any explanation of the bases of their conclusions”) (alterations
in original) (internal quotation marks omitted). The Commissioner permissibly
resolved this conflict by placing more weight on Appellant’s orthopedic
consultative examination conducted by Dr. Vincent Bernabe. See Andrews v.
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Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (explaining that where a treating
physician’s opinion is contradicted by an examining professional’s opinion, the
Commissioner may resolve the conflict by relying on the examining physician’s
opinion if the examining physician’s opinion is supported by different,
independent clinical findings). Dr. Bernabe found that Appellant’s physical
limitations would limit her to performing light work.
The ALJ provided specific, clear and convincing reasons, supported by
substantial evidence, for discounting Appellant’s self-reported subjective
symptoms. Tommasetti v. Astrue, 533 F.3d 1035, 1039-40 (9th Cir. 2008).
Appellant’s subjective symptoms were internally inconsistent and unsupported by
the objective medical evidence. Appellant first reported she had no problems with
attention and could follow instructions well, then just a few months later claimed
that she could pay attention only 20-30 minutes and could not follow instructions
well. There was no reported change in her medical condition to support this
alleged deterioration. See Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir.
1997). Appellant also never reported the degree of pain or severity of limitations
to her treatment providers that she subjectively alleged, and some allegations were
undermined by her objective medical record. See Flaten v. Sec’y of Health &
Human Servs., 44 F.3d 1453, 1464 (9th Cir. 1995).
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The ALJ thus posed an appropriate hypothetical to the VE that took into
consideration only limitations supported by substantial evidence. Osenbrock v.
Apfel, 240 F.3d 1157, 1163 (9th Cir. 2001).
AFFIRMED.
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