Kevin Masao Kozai v. Nancy A. Berryhill ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ) KEVIN MASAO KOZAI, ) Case No. CV 19-04725-JEM 12 ) Plaintiff, ) 13 ) MEMORANDUM OPINION AND ORDER v. ) AFFIRMING DECISION OF THE 14 ) COMMISSIONER OF SOCIAL SECURITY ANDREW M. SAUL, ) 15 Commissioner of Social Security, ) ) 16 Defendant. ) ) 17 18 PROCEEDINGS 19 On May 30, 2019, Kevin Masao Kozai (“Plaintiff” or “Claimant”) filed a complaint seeking 20 review of the decision by the Commissioner of Social Security (“Commissioner”) denying 21 Plaintiff’s application for Social Security Disability Insurance benefits. (Dkt. 1.) The 22 Commissioner filed an Answer on September 16, 2019. (Dkt. 12.) On November 27, 2019, the 23 parties filed a Joint Stipulation (“JS”). (Dkt. 14.) The matter is now ready for decision. 24 Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before this 25 Magistrate Judge. After reviewing the pleadings, transcripts, and administrative record (“AR”), 26 the Court concludes that the Commissioner’s decision must be affirmed and this case 27 dismissed with prejudice. 28 1 BACKGROUND 2 Plaintiff is a 63 year-old male who applied for Social Security Disability Insurance 3 benefits on May 28, 2015, alleging disability beginning September 15, 2014. (AR 31.) The ALJ 4 determined that Plaintiff has not engaged in substantial gainful activity since September 15, 5 2014, the alleged onset date. (AR 33.) 6 Plaintiff’s claim was denied initially on November 9, 2015, and on reconsideration on 7 May 27, 2016. (AR 31.) Plaintiff filed a timely request for hearing, which was held before 8 Administrative Law Judge (“ALJ”) Diana J. Coburn on December 7, 2017, in Pasadena, 9 California. (AR 31.) Plaintiff appeared and testified at the hearing and was represented by 10 counsel. (AR 31.) Vocational expert (“VE”) Marian R. Marracco also appeared and testified at 11 the hearing. (AR 31.) 12 The ALJ issued an unfavorable decision on April 26, 2018. (AR 31-41.) The Appeals 13 Council denied review on March 27, 2019. (AR 1-3.) 14 DISPUTED ISSUES 15 As reflected in the Joint Stipulation, Plaintiff raises the following disputed issues as 16 grounds for reversal and remand: 17 1. Whether the ALJ properly considered the opinions of Dr. Richman. 18 2. Whether the ALJ properly considered Kozai’s testimony. 19 3. Whether the ALJ properly classified Kozai’s work as a data entry clerk. 20 4. Whether the ALJ properly considered work as a data entry clerk as past relevant 21 work. 22 STANDARD OF REVIEW 23 Under 42 U.S.C. § 405(g), this Court reviews the ALJ’s decision to determine whether 24 the ALJ’s findings are supported by substantial evidence and free of legal error. Smolen v. 25 Chater, 80 F.3d 1273 , 1279 (9th Cir. 1996); see also DeLorme v. Sullivan, 924 F.2d 841, 846 26 (9th Cir. 1991) (ALJ’s disability determination must be supported by substantial evidence and 27 based on the proper legal standards). 28 1 Substantial evidence means “‘more than a mere scintilla,’ but less than a 2 preponderance.” Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting Richardson v. 3 Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is “such relevant evidence as a 4 reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 5 401 (internal quotation marks and citation omitted). 6 This Court must review the record as a whole and consider adverse as well as 7 supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Where 8 evidence is susceptible to more than one rational interpretation, the ALJ’s decision must be 9 upheld. Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). 10 “However, a reviewing court must consider the entire record as a whole and may not affirm 11 simply by isolating a ‘specific quantum of supporting evidence.’” Robbins, 466 F.3d at 882 12 (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)); see also Orn v. Astrue, 495 13 F.3d 625, 630 (9th Cir. 2007). 14 THE SEQUENTIAL EVALUATION 15 The Social Security Act defines disability as the “inability to engage in any substantial 16 gainful activity by reason of any medically determinable physical or mental impairment which 17 can be expected to result in death or . . . can be expected to last for a continuous period of not 18 less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Commissioner has 19 established a five-step sequential process to determine whether a claimant is disabled. 20 20 C.F.R. §§ 404.1520, 416.920. 21 The first step is to determine whether the claimant is presently engaging in substantial 22 gainful activity. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). If the claimant is engaging 23 in substantial gainful activity, disability benefits will be denied. Bowen v. Yuckert, 482 U.S. 137, 24 140 (1987). Second, the ALJ must determine whether the claimant has a severe impairment or 25 combination of impairments. Parra, 481 F.3d at 746. An impairment is not severe if it does not 26 significantly limit the claimant’s ability to work. Smolen, 80 F.3d at 1290. Third, the ALJ must 27 determine whether the impairment is listed, or equivalent to an impairment listed, in 20 C.F.R. 28 Pt. 404, Subpt. P, Appendix I of the regulations. Parra, 481 F.3d at 746. If the impairment 1 meets or equals one of the listed impairments, the claimant is presumptively disabled. Bowen, 2 482 U.S. at 141. Fourth, the ALJ must determine whether the impairment prevents the 3 claimant from doing past relevant work. Pinto v. Massanari, 249 F.3d 840, 844-45 (9th Cir. 4 2001). Before making the step four determination, the ALJ first must determine the claimant’s 5 residual functional capacity (“RFC”). 20 C.F.R. § 416.920(e). The RFC is “the most [one] can 6 still do despite [his or her] limitations” and represents an assessment “based on all the relevant 7 evidence.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The RFC must consider all of the 8 claimant’s impairments, including those that are not severe. 20 C.F.R. §§ 416.920(e), 9 416.945(a)(2); Social Security Ruling (“SSR”) 96-8p. 10 If the claimant cannot perform his or her past relevant work or has no past relevant work, 11 the ALJ proceeds to the fifth step and must determine whether the impairment prevents the 12 claimant from performing any other substantial gainful activity. Moore v. Apfel, 216 F.3d 864, 13 869 (9th Cir. 2000). The claimant bears the burden of proving steps one through four, 14 consistent with the general rule that at all times the burden is on the claimant to establish his or 15 her entitlement to benefits. Parra, 481 F.3d at 746. Once this prima facie case is established 16 by the claimant, the burden shifts to the Commissioner to show that the claimant may perform 17 other gainful activity. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). To support 18 a finding that a claimant is not disabled at step five, the Commissioner must provide evidence 19 demonstrating that other work exists in significant numbers in the national economy that the 20 claimant can do, given his or her RFC, age, education, and work experience. 20 C.F.R. 21 § 416.912(g). If the Commissioner cannot meet this burden, then the claimant is disabled and 22 entitled to benefits. Id. 23 THE ALJ DECISION 24 In this case, the ALJ determined at step one of the sequential process that Plaintiff has 25 not engaged in substantial gainful activity since September 15, 2014, the alleged onset date. 26 (AR 33.) 27 28 1 At step two, the ALJ determined that Plaintiff has the following medically determinable 2 severe impairments: bilateral knee arthritis, right carpal tunnel and tenderness, cervical 3 radiculopathy, diabetes, and headaches. (AR 34-35.) 4 At step three, the ALJ determined that Plaintiff does not have an impairment or 5 combination of impairments that meets or medically equals the severity of one of the listed 6 impairments. (AR 35-36.) 7 The ALJ then found that Plaintiff had the RFC to perform medium work as defined in 20 8 CFR § 404.1567(c) with the following limitations: 9 Claimant could frequently climb ramps and stairs, and balance. Claimant could 10 occasionally stoop, kneel, crouch and crawl. Claimant could frequently handle 11 and finger with the right dominant hand. Claimant should avoid all exposure to 12 loud environments and avoid concentrated exposure to irritants, such as 13 pulmonary irritants, fumes, gases, dust and should avoid concentrated exposure 14 to bright lights. 15 (AR 36-40.) In determining the above RFC, the ALJ made a determination that Plaintiff’s 16 subjective symptom allegations were “not entirely consistent” with the medical evidence and 17 other evidence of record. (AR 37.) 18 At step four, the ALJ found that Plaintiff is able to perform his past relevant work as a 19 data entry clerk. (AR 40.) 20 Consequently, the ALJ found that Claimant is not disabled within the meaning of the 21 Social Security Act. (AR 41.) 22 DISCUSSION 23 The ALJ decision must be affirmed. The ALJ’s RFC is supported by substantial 24 evidence. The ALJ’s determination that Plaintiff can perform his past relevant work is 25 supported by substantial evidence. 26 /// 27 /// 28 /// 1 I. THE ALJ’S RFC IS SUPPORTED BY SUBSTANTIAL EVIDENCE 2 A. The ALJ Properly Considered The Medical Evidence 3 Plaintiff contends that the ALJ improperly discounted the neurological opinion of the 4 agreed workers’ compensation examiner Dr. Lawrence Richman. The Court disagrees. 5 1. Relevant Federal Law 6 The ALJ’s RFC is not a medical determination but an administrative finding or legal 7 decision reserved to the Commissioner based on consideration of all the relevant evidence, 8 including medical evidence, lay witnesses, and subjective symptoms. See SSR 96-5p; 20 9 C.F.R. § 1527(e). In determining a claimant’s RFC, an ALJ must consider all relevant evidence 10 in the record, including medical records, lay evidence, and the effects of symptoms, including 11 pain reasonably attributable to the medical condition. Robbins, 446 F.3d at 883. 12 In evaluating medical opinions, the case law and regulations distinguish among the 13 opinions of three types of physicians: (1) those who treat the claimant (treating physicians); (2) 14 those who examine but do not treat the claimant (examining physicians); and (3) those who 15 neither examine nor treat the claimant (non-examining, or consulting, physicians). See 20 16 C.F.R. §§ 404.1527, 416.927; see also Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). In 17 general, an ALJ must accord special weight to a treating physician’s opinion because a treating 18 physician “is employed to cure and has a greater opportunity to know and observe the patient 19 as an individual.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citation omitted). If 20 a treating source’s opinion on the issues of the nature and severity of a claimant’s impairments 21 is well-supported by medically acceptable clinical and laboratory diagnostic techniques, and is 22 not inconsistent with other substantial evidence in the case record, the ALJ must give it 23 “controlling weight.” 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). 24 Where a treating doctor’s opinion is not contradicted by another doctor, it may be 25 rejected only for “clear and convincing” reasons. Lester, 81 F.3d at 830. However, if the 26 treating physician’s opinion is contradicted by another doctor, such as an examining physician, 27 the ALJ may reject the treating physician’s opinion by providing specific, legitimate reasons, 28 supported by substantial evidence in the record. Lester, 81 F.3d at 830-31; see also Orn, 495 1 F.3d at 632; Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Where a treating 2 physician's opinion is contradicted by an examining professional’s opinion, the Commissioner 3 may resolve the conflict by relying on the examining physician’s opinion if the examining 4 physician’s opinion is supported by different, independent clinical findings. See Andrews v. 5 Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995); Orn, 495 F.3d at 632. Similarly, to reject an 6 uncontradicted opinion of an examining physician, an ALJ must provide clear and convincing 7 reasons. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). If an examining physician’s 8 opinion is contradicted by another physician’s opinion, an ALJ must provide specific and 9 legitimate reasons to reject it. Id. However, “[t]he opinion of a non-examining physician cannot 10 by itself constitute substantial evidence that justifies the rejection of the opinion of either an 11 examining physician or a treating physician”; such an opinion may serve as substantial 12 evidence only when it is consistent with and supported by other independent evidence in the 13 record. Lester, 81 F.3d at 830-31; Morgan, 169 F.3d at 600. 14 2. Analysis 15 Plaintiff alleges he is unable to work due to headaches, neck pain, and right hand 16 limitations. (AR 36.) He testified he has carpal tunnel syndrome in his right hand. (AR 36.) 17 The ALJ did find that Plaintiff has the medically severe impairments of bilateral knee arthritis, 18 right carpal tunnel syndrome and tenderness, cervical radiculopathy, diabetes, and headaches. 19 (AR 34.) Notwithstanding these impairments, the ALJ assessed Plaintiff with a medium work 20 RFC with restrictions, including that he can only “frequently handle and finger with the right 21 dominant hand.” (AR 36.) The ALJ’s medium work RFC is supported by the opinions of State 22 agency reviewing physicians and by consulting examiner Dr. Babak Tashakkor. (AR 39.) The 23 ALJ also noted that there were few headache complaints after July 2015, as Plaintiff’s 24 headaches were controlled with Tylenol. (AR 36, 37, 108.) 25 Plaintiff contends that the ALJ erred in rejecting limitations opined by workers’ 26 compensation Agreed Medical Examiner Dr. Lawrence Richman in May 2015. (AR 40.) Dr. 27 Richman would preclude lifting more than 20 pounds, repetitive flexion, extension and rotation 1 20 pound lifting restriction is inconsistent with the medium work RFCs of other physicians noted 2 above. The contradictory opinions of other physicians provide a specific, legitimate reason for 3 rejecting a physician’s opinion. Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). As 4 Plaintiff concedes, any lifting restriction issue is moot because the ALJ found that Plaintiff could 5 perform past relevant light work. (JS 8:3-5, AR 40.) 6 The ALJ rejected Dr. Richman’s restriction of no repetitive reflexion, extension, and 7 rotation of the head and neck because the medical record documents only “minor findings” as 8 to Plaintiff’s neck. (AR 38.) Plaintiff contends that the ALJ failed to give specific, legitimate 9 reasons for rejecting Dr. Richman’s neck restriction, but quite to the contrary the ALJ provided 10 numerous reasons. The ALJ found that in July 2015 treatment records did not indicate any 11 abnormal findings except edema in the extremities. (AR 38, 1104.) In September 2015, a 12 physical examination noted normal findings in the head, lumbar spine, cervical spine, and 13 extremities, with normal range of motion. (AR 38, 1133-1135.) In November 2017, a physical 14 examination was normal. (AR 38, 1199.) Plaintiff did not address these findings in the Joint 15 Statement. 16 Additionally, the ALJ also found that diagnostic imaging and physical exams showed 17 only minimal findings regarding Plaintiff’s spine. (AR 37.) In April 2014, a cervical spine MRI 18 revealed a central annular tear at C6 to C7 with unconvertebral facet hyperthrophy, and severe 19 narrowing of the right neural foremen at C6 to C7. (AR 37.) Plaintiff disputes that these MRI 20 results are “minimal findings,” but State agency physicians found no evidence of severe 21 limitations in Plaintiff’s back or neck. (AR 39-40, 102, 108, 118, 123.) They also found that, 22 despite complaints of diffuse musculoskeletal pain in back, neck, and knees, exams of these 23 areas were consistently normal. (AR 39-40, 102, 108, 118, 123.) They found Plaintiff’s back 24 unremarkable. (AR 105, 121.) An ALJ may reject a physician’s opinion that is contrary to the 25 medical evidence of record. Batson v. Commissioner of Soc. Sec. Adm., 359 F.3d 1190, 1195 26 (9th Cir. 2004) (physician’s opinion may be rejected when “unsupported by the record as a 27 whole”); Thomas, 278 F.3d at 987 (physician’s opinion may be rejected when inconsistent with “other evidence of record”). 1 The ALJ also rejected Dr. Richman’s preclusion of using his right hand for fingering. 2 (AR 40.) In July 2014, neurologist Dr. Sehati indicated Plaintiff was at his neurological baseline 3 with no further follow-up necessary. (AR 37, 687.) By December 2014, Plaintiff’s peripheral 4 neuropathy was described as stable. (AR 38.) Although there was evidence of right hand 5 weakness in 2016 and 2017, Plaintiff reported that over-the-counter medications helped. (AR 6 38.) In May 2017, the diagnosis was stable right hand weakness. (AR 38.) Plaintiff was 7 treated conservatively. (AR 38, 39.) The State agency physicians opined that Plaintiff could 8 frequently handle and finger with the right hand. (AR 39, 133, 137.) Dr. Tashakkor found that 9 there was good range of motion and mild tenderness in the right hand. (AR 39, 1135.) Again, 10 an ALJ may reject a physician’s opinion that is contradicted by the opinions of other physicians. 11 Tonapetyan, 242 F.3d at 1149. 12 The ALJ also found that Plaintiff’s admitted daily activities undermine Dr. Richman’s 13 RFC. Plaintiff reported that he could manage his personal care, prepare simple meals, perform 14 light cleaning, wash laundry, drive, shop in stores, and manage his personal finances. (AR 38.) 15 He can carry grocery bags. (AR 36.) An ALJ may reject a physician’s opinion that is 16 contradicted by the claimant’s own admitted or observed abilities. Bayliss, 427 F.3d at 1216. 17 Plaintiff disagrees with the ALJ’s evaluation of the evidence, but it is the ALJ’s 18 responsibility to resolve conflicts in the medical evidence and ambiguities in the record. 19 Andrews, 53 F.3d at 1039. Where the ALJ’s interpretation of the record is reasonable, as it is 20 here, it should not be second-guessed. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 21 2001); Thomas, 278 F.3d at 954 (“Where the evidence is susceptible to more than rational 22 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be 23 upheld.”). 24 The ALJ rejected Dr. Richman’s opinion for specific, legitimate reasons supported by 25 substantial evidence. 26 /// 27 /// /// 1 B. The ALJ Properly Discounted Plaintiff’s Subjective Symptom Allegations 2 Plaintiff contends that the ALJ improperly discounted Plaintiff’s subjective symptom 3 allegations. The Court disagrees. 4 1. Relevant Federal Law 5 The test for deciding whether to accept a claimant’s subjective symptom testimony turns 6 on whether the claimant produces medical evidence of an impairment that reasonably could be 7 expected to produce the pain or other symptoms alleged. Bunnell v. Sullivan, 947 F.2d 341, 8 346 (9th Cir. 1991); see also Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998); Smolen, 80 9 F.3d at 1281-82 esp. n.2. The Commissioner may not discredit a claimant’s testimony on the 10 severity of symptoms merely because they are unsupported by objective medical evidence. 11 Reddick, 157 F.3d at 722; Bunnell, 947 F.2d at 343, 345. If the ALJ finds the claimant’s pain 12 testimony not credible, the ALJ “must specifically make findings which support this conclusion.” 13 Bunnell, 947 F.2d at 345. The ALJ must set forth “findings sufficiently specific to permit the 14 court to conclude that the ALJ did not arbitrarily discredit claimant’s testimony.” Thomas, 278 15 F.3d at 958; see also Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Bunnell, 947 16 F.2d at 345-46. Unless there is evidence of malingering, the ALJ can reject the claimant’s 17 testimony about the severity of a claimant’s symptoms only by offering “specific, clear and 18 convincing reasons for doing so.” Smolen, 80 F.3d at 1283-84; see also Reddick, 157 F.3d at 19 722. The ALJ must identify what testimony is not credible and what evidence discredits the 20 testimony. Reddick, 157 F.3d at 722; Smolen, 80 F.3d at 1284. 21 2. Analysis 22 In determining Plaintiff’s RFC, the ALJ found that Plaintiff’s medically determinable 23 impairments reasonably could be expected to cause his alleged symptoms. (AR 37.) The ALJ, 24 however, also found that Plaintiff’s statements regarding the intensity, persistence and limiting 25 effects of his symptoms are “not entirely consistent” with the medical evidence and other 26 evidence of record. (AR 37, 39.) Because there was no finding of malingering, the ALJ was 27 required to provide clear and convincing reasons supported by substantial evidence for 1 discounting Plaintiff’s subjective symptom allegations. Smolen, 80 F.3d at 1283-84; 2 Tommasetti v. Astrue, 533 F.3d at 1035, 1039-40 (9th Cir. 2008). The ALJ did so. 3 First, the ALJ found that Plaintiff’s subjective symptom allegations are inconsistent with 4 the objective medical evidence. (AR 37.) An ALJ is permitted to consider whether there is a 5 lack of medical evidence to corroborate a claimant’s alleged symptoms so long as it is not the 6 only reason for discounting a claimant’s subjective symptom allegations. Burch v. Barnhart, 7 400 F.3d 676, 680-81 (9th Cir. 2005). As already noted, diagnostic imaging and physical 8 exams showed only minimal findings regarding Plaintiff’s spine. (AR 37.) State agency 9 physicians found that, notwithstanding Plaintiff’s complaints of diffuse musculoskeletal pain in 10 the back, neck and knees, exams in these areas were consistently normal. (AR 39-40, 102, 11 108, 118, 123.) Physical exams in September 2015 and November 2017 revealed normal 12 findings and no significant functional limitations regarding Plaintiff’s neck. (AR 38, 1133-1135.) 13 There were but minimal findings regarding Plaintiff’s knees. (AR 37.) There were no headache 14 complaints after July 2015. (AR 37.) An EMG and NCS revealed mild to moderate carpal 15 tunnel entrapment. (AR 39.) Dr. Tashakkor found that Plaintiff was mildly/occasionally limited 16 in fine motor skills and manipulations with the right hand. (AR 39.) Dr. Tashakkor and State 17 agency reviewing physicians all assessed Plaintiff with a reduced range medium work RFC. 18 Second, the ALJ found that Plaintiff’s subjective symptom allegations were undermined 19 because he received conservative treatment consisting of medication and physical therapy. 20 (AR 39.) An ALJ may consider conservative treatment in evaluating subjective symptom 21 allegations. Tommasetti, 533 F.3d at 1039. Impairments that can be controlled with 22 medication are not disabling. Warre v. Comm’r of Soc. Sec. Adm., 439 F.3d 1001, 1006 (9th 23 Cir. 2006). Here, the ALJ reported that Plaintiff’s knee impairment improved with conservative 24 treatment consisting of Tylenol and a brace. (AR 37.) Plaintiff’s carpal tunnel syndrome was 25 treated conservatively, with over-the-counter medications. (AR 38.) Tylenol was used to 26 control his headaches. (AR 36, 108.) The ALJ found that Plaintiff did not receive a level of 27 treatment consistent with disability. (AR 39.) 1 Third, the ALJ found that Plaintiff’s impairments do not significantly interfere with his 2 activities of daily living. (AR 38.) Daily activities inconsistent with disability are a legitimate 3 consideration in evaluating a claimant’s subjective symptom allegations. Bunnell, 947 F.2d at 4 345-46. The ALJ found that Plaintiff did not receive a level of treatment consistent with 5 disability. (AR 39.) Plaintiff can manage his personal care, prepare simple meals, perform light 6 cleaning, wash laundry, drive, shop in stores and manage personal finances. (AR 38.) He also 7 can carry grocery bags. (AR 36.) Plaintiff contends that these activities do not mean he can 8 work a full-time job but the inconsistent daily activities prove that his alleged symptoms are not 9 as severe as alleged. See Valentine v. Comm’r, 574 F.3d 685, 694 (9th Cir. 2009). 10 Plaintiff disagrees with the ALJ’s evaluation of the evidence, but it is the ALJ’s 11 responsibility to resolve conflicts in the medical evidence and ambiguities in the record. 12 Andrews, 53 F.3d at 1039. Where the ALJ’s interpretation of the record is reasonable, as it is 13 here, it should not be second-guessed. Rollins, 261 F.3d at 857; Thomas, 278 F.3d at 954 14 (“Where the evidence is susceptible to more than rational interpretation, one of which supports 15 the ALJ’s decision, the ALJ’s conclusion must be upheld.”). 16 The ALJ discounted Plaintiff’s subjective symptom allegations for clear and convincing 17 reasons supported by substantial evidence. 18 * * * 19 The ALJ’s RFC is supported by substantial evidence. 20 II. THE ALJ’S DETERMINATION THAT PLAINTIFF CAN PERFORM HIS PAST RELEVANT WORK IS SUPPORTED BY 21 SUBSTANTIAL EVIDENCE 22 At the fourth step of the sequential evaluation, the ALJ determined that Plaintiff could 23 perform his past relevant work as a data entry clerk (DOT 239.567-010). (AR 40-41.) This job 24 is characterized as light exertional with frequent handling and fingering consistent with 25 Plaintiff’s RFC. The ALJ explained that the data entry job is allowed because Plaintiff retains 26 the ability to do medium work and any additional limitations assessed by the ALJ do not 27 preclude him from performing this past relevant work. (AR 40-41.) 1 Plaintiff contends that the VE erred in citing DOT 239.567-010 for the data entry clerk 2 job. That DOT code is for Office Helper. Plaintiff argues that the correct DOT classification for 3 a data entry clerk should be DOT 203.582-054, which is sedentary with frequent handling but 4 constant fingering. 5 Plaintiff, however, ignores that his employer returned him to light duty/work, post-injury. 6 (AR 59, 67.) As Plaintiff states, he was able to take 2-3 extra breaks a day whenever he 7 wanted because he was on light duty. (AR 59). He did not even let the supervisor know. (AR 8 68.) The VE appears to have chosen the light duty DOT classification closest to the job as 9 Plaintiff’s employer permitted him to perform it. (AR 80-82.) Plaintiff acknowledges the extra 10 breaks but not how those breaks affect the choice of DOT classification. Plaintiff’s contention 11 that the VE made a mistake in designating the DOT code is not substantiated. 12 Even if the VE made a mistake, it was harmless. Stout v. Commissioner, 454 F.3d 13 1050, 1055 (9th Cir. 2006) (error is harmless if inconsequential to the outcome). The VE 14 testified that Plaintiff could perform work that was not fast paced and did not require constant 15 use of the hands. (AR 81-82.) Plaintiff was able to perform the data entry job and claimed he 16 had no problems performing the computer work except he felt tired sometimes. (AR 67.) 17 Plaintiff did not leave the job because of his impairments but because his contract was over. 18 (AR 61.) Thus, the VE testified that Plaintiff could perform the work despite the DOT 19 description. (AR 67, 82.) A VE’s recognized expertise provided the necessary foundation for 20 his or her testimony. Bayliss, 427 F3d at 1218. 21 Plaintiff bears the burden to prove that he cannot perform past work as either actually 22 performed or generally performed in the national economy. Carmickle v. Comm’r of Soc. Sec. 23 Admin., 533 F. 3d 1155, 1166 (9th Cir. 2008). Plaintiff failed to show he cannot perform the job 24 as a data entry clerk as generally or actually performed. (AR 40-41.) 25 /// 26 /// 27 /// /// 1 The ALJ’s fourth step determination that Plaintiff can perform his past relevant work as a 2 data entry clerk as actually and generally performed is supported by substantial evidence.1 3 * * * 4 The ALJ’s nondisability determination is supported by substantial evidence and free of 5 legal error. 6 ORDER 7 IT IS HEREBY ORDERED that Judgment be entered affirming the decision of the 8 Commissioner of Social Security and dismissing this case with prejudice. 9 10 DATED: April 6, 2020 /s/ John E. McDermott JOHN E. MCDERMOTT 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 1 The ALJ found that Plaintiff’s prior work as a data entry clerk met the recency, durational, 23 and earnings requirements to be considered past relevant work. (AR 40.) Plaintiff argues that his light duty job as a data entry clerk is properly characterized as an unsuccessful work attempt. 24 Plaintiff, however, does not meet the requirements for an unsuccessful work attempt. See 20 C.F.R. § 404.1574 (a)(1) and (c). The regulations require work for a period of six months or less 25 and that a claimant’s impairment forced the claimant to stop working. Id. Plaintiff worked as a data entry clerk for six months from April to September 2014 (AR 40, 59-60) but did not leave the 26 job because of his impairments or because he could not perform the job. He lost the data entry 27 clerk job because his contract was over. (AR 61, 67.) There is no reason to believe he could not have continued in the position.