Debra McGarrah v. Carolyn Colvin ( 2016 )

FILED
NOT FOR PUBLICATION
MAY 24 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEBRA ERIKA MCGARRAH, No. 14-15821
Plaintiff - Appellant, D.C. No. 2:12-cv-02296-AC
v.
MEMORANDUM*
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Allison Claire, United States Magistrate Judge, Presiding
Argued and Submitted April 13, 2016
San Francisco, California
Before: SCHROEDER, KOZINSKI and TROTT, Circuit Judges.
1. The ALJ may discredit the opinion of an examining doctor only after
articulating “specific and legitimate reasons that are supported by substantial
evidence in the record.” Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995).
The ALJ here gave reduced weight to the opinions of Dr. Kalman and Dr. Kolin
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
page 2
after concluding that their one-time assessments were inconsistent with treatment
notes from Dr. Fernandez, who had been McGarrah’s psychiatrist for several years.
That conclusion is supported by the record. Dr. Fernandez consistently reported
that McGarrah had organized thoughts and good judgment. Moreover, Dr.
Fernandez indicated on more than one occasion that McGarrah’s condition was
improving. The moderate limitations described by Dr. Kalman and Dr. Kolin are
at odds with the rosier account provided by Dr. Fernandez. When, as here, treating
physicians provide differing assessments, the ALJ is entitled to resolve the conflict.
Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). Given that the decision
to discredit Dr. Kalman and Dr. Kolin was supported by substantial evidence, we
will not revisit that decision on appeal.
2. The ALJ did not err in assessing McGarrah’s residual functional capacity
(RFC). “[A]n ALJ’s assessment of a claimant adequately captures restrictions
related to concentration, persistence, or pace where the assessment is consistent
with restrictions identified in the medical testimony.” Stubbs-Danielson v. Astrue,
539 F.3d 1169, 1174 (9th Cir. 2008). Dr. Kalman and Dr. Kolin stated that
McGarrah could perform simple tasks. Thus, McGarrah’s RFC to perform simple
tasks adequately captured her moderate limitations.
page 3
The ALJ did err by failing to include a limitation to simple tasks in the
hypothetical question that she posed to the vocational expert. But this error was
harmless. Based on the information provided, the vocational expert opined that the
hypothetical worker would be able to perform jobs such as packer and dishwasher.
The Commissioner’s Dictionary of Occupational Titles identifies both of these jobs
as having a specific vocational preparation level of 2, which corresponds to
“unskilled work.” See Social Security Ruling 00–4p., 65 Fed. Reg. 75,759, 75,760
(Dec. 4, 2000). “Unskilled work” is defined as “work which needs little or no
judgment to do simple duties that can be learned on the job in a short period of
time.” 20 C.F.R. § 404.1568(a). Thus, packers and dishwashers are able to
perform simple work. From this it follows that the vocational expert’s answer to
the hypothetical question would not have been different even if the limitation to
simple work had been included as a part of the question. Because the mistake in
formulating the question did not “negate the validity of the ALJ’s ultimate
conclusion,” the error was harmless. Molina v. Astrue, 674 F.3d 1104, 1115 (9th
Cir. 2012).
AFFIRMED.