Virginia Bakker v. Kilolo Kijakazi ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 2 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VIRGINIA LORRAINE BAKKER, No. 20-35959
Plaintiff-Appellant, D.C. No. 3:18-cv-01080-CL
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge, Presiding
Argued and Submitted November 19, 2021
San Francisco, California
Before: W. FLETCHER and MILLER, Circuit Judges, and KORMAN,** District
Judge.
Virginia Lorraine Bakker appeals from the district court’s order affirming a
decision of an administrative law judge (ALJ) denying her benefits under Titles II
and XVI of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
and we affirm.
We review de novo the district court’s judgment upholding the denial of
benefits, Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005), and will reverse an
ALJ’s decision to deny benefits “only if the decision ‘contains legal error or is not
supported by substantial evidence,’” Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir.
2020) (quoting Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)).
Bakker argues that the ALJ erred in rejecting the opinions of non-examining
physicians who identified certain limitations on her mental capacity. With regard
to Bakker’s understanding and memory, both doctors opined that Bakker “is able
to understand and carry out simple 1–2 step tasks” but “[h]as difficulty with
detailed tasks.” Their assessment of her sustained concentration and persistence
capabilities was similar but slightly better: Bakker “is able to understand and carry
out simple 1–2 step tasks on a consistent basis” and “[c]an do occasional
detailed/complex tasks but not on a consistent basis due to anxiety and
depression.” The ALJ accepted those findings and incorporated them into Bakker’s
residual functional capacity as follows: “She is able to understand, remember, and
carry out tasks of occupations that have an SVP of 1 or 2”—a different but not
inherently incompatible description of Bakker’s capacity.
The only indication that the ALJ rejected the limitations on understanding
and concentration was that the residual functional capacity included a different
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metric from that used by the physicians and, based on this residual functional
capacity, the vocational expert testified that Bakker could perform certain jobs
arguably inconsistent with the non-examining physicians’ assessments. But ALJs
have some leeway in “translating and incorporating clinical findings into a
succinct” residual functional capacity. Rounds v. Commissioner Soc. Sec. Admin.,
807 F.3d 996, 1006 (9th Cir. 2015). And while the vocational expert proposed jobs
requiring a generalized education development reasoning level of two, which is
inconsistent with a limitation to 1–2 step tasks, id. at 1002–03, the physicians’
opinions did not dictate a categorical restriction to only 1–2 step tasks. We
conclude that the ALJ’s statement of Bakker’s residual functional capacity—and,
thus, her conclusion that Bakker is not disabled—was supported by substantial
evidence.
AFFIRMED.
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