Julian Segobia, II v. Kilolo Kijakazi

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 23 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JULIAN SEGOBIA II, No. 20-55943
Plaintiff-Appellant, D.C. No. 3:19-cv-01661-NLS
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of California
Nita L. Stormes, Magistrate Judge, Presiding
Argued and Submitted September 2, 2021
Pasadena, California
Before: IKUTA, BENNETT, and R. NELSON, Circuit Judges.
Claimant-Appellant Julian Segobia II appeals the denial of his applications
for supplemental security income and disability insurance benefits. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
“We review the district court’s order affirming the [administrative law judge’s
(“ALJ”)] denial of social security benefits de novo, and reverse only if the ALJ’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
decision was not supported by substantial evidence in the record as a whole or if the
ALJ applied the wrong legal standard.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th
Cir. 2012) (citations omitted). “Even when the evidence is susceptible to more than
one rational interpretation, we must uphold the ALJ’s findings if they are supported
by inferences reasonably drawn from the record.” Id. at 1111.
1. Segobia suffers from schizophrenia. He argues that the ALJ erred by
failing to give clear and convincing reasons for rejecting the medical opinion of his
treating psychiatrist, Dr. Palica. “As a general rule, more weight should be given to
the opinion of a treating source than to the opinion of doctors who do not treat the
claimant.” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Thus, “[t]o reject the
uncontroverted opinion of a claimant’s physician, the ALJ must present clear and
convincing reasons for doing so.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th
Cir. 1989).
The ALJ satisfied that requirement by explaining the inconsistencies between
the marked limitations on Segobia’s ability to work in Dr. Palica’s medical opinion
and the “generally unremarkable” findings in several physicians’ mental status
exams (“MSEs”), including Dr. Palica’s. “A conflict between a treating physician’s
medical opinion and [her] own notes is a clear and convincing reason for not relying
on the doctor’s opinion . . . .” Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020)
(quotation marks and citation omitted). Of course, “it is error for an ALJ to pick out
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a few isolated instances of improvement over a period of months or years and to treat
them as a basis for concluding a claimant is capable of working.” Garrison v.
Colvin, 759 F.3d 995, 1017 (9th Cir. 2014). But here, any instances of Segobia’s
symptoms worsening were isolated setbacks in his overall “trajectory of
improvement” spanning more than five years.
2. Segobia argues that the ALJ erred by failing to inquire into
inconsistencies between the vocational expert’s (“VE”) testimony and the
Dictionary of Occupational Titles (“DOT”)—specifically, by failing to inquire into
the discrepancy between the VE’s statement that DOT number 559.687-014
corresponds to the job of a “packer” and the DOT itself, which in fact lists “ampoule
sealer” at DOT number 559.687-014.
“When there is an apparent unresolved conflict between VE . . . evidence and
the DOT, the adjudicator must elicit a reasonable explanation for the conflict before
relying on the VE . . . evidence to support a determination or decision about whether
the claimant is disabled.” SSR 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000); see
Massachi v. Astrue, 486 F.3d 1149, 1153–54 (9th Cir. 2007). The ALJ failed to do
so here, instead asking the VE at the start of his testimony, “[i]f your testimony is
inconsistent with the DOT, will you tell me whether or not I ask?” Cf. Rounds v.
Comm’r of Soc. Sec. Admin., 807 F.3d 996, 1003 (9th Cir. 2015). The VE agreed.
But here, the error was harmless because Segobia’s attorney stipulated to this
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process of identifying conflicts between the VE’s testimony and the DOT. Even
without that stipulation, the ALJ’s failure to inquire into the conflict would have
been harmless, as the VE testified that “general office machine operator” is a second
occupation appropriate for an individual with Segobia’s RFC and that there are
266,000 jobs for that occupation existing in the national economy—a sufficient
number.1 See Buck v. Berryhill, 869 F.3d 1040, 1051 & n.2 (9th Cir. 2017); see also
Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 528 (9th Cir. 2014) (“25,000 jobs
meets the statutory standard.”).
3. Segobia challenges the ALJ’s RFC determination for failing to
“incorporate the ALJ’s own findings regarding Mr. Segobia’s mental impairments,”
including Segobia’s “poor memory,” “limited insight that affects his concentration
and ability to focus on tasks,” and “frequent social difficulties with friends and
family members in stressful situations.” But the ALJ did incorporate those findings
into Segobia’s RFC. The RFC addresses Segobia’s poor memory by limiting
Segobia to “understand[ing], remembering, and carrying out simple, routine, and
repetitive tasks.” It addresses Segobia’s inability to concentrate and focus on tasks
1
Segobia cites our holding in Maxwell v. Saul, 971 F.3d 1128 (9th Cir. 2020),
that “two occupations do not constitute a ‘significant range of work.’” Id. at 1131.
But Maxwell was interpreting a rule that applies only to “individuals of advanced
age,” defined as individuals who are fifty-five or older. See 20 C.F.R. Pt. 404, Subpt.
P, App. 2, Rule 202.00(c). Thus, Maxwell does not apply to Segobia, who was thirty-
one when the ALJ denied his applications for social security benefits.
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by limiting Segobia to jobs with “standard industry breaks every two hours.” And
it addresses Segobia’s social difficulties in stressful situations by limiting Segobia
to “[non]interaction with the general public, and only occasionally work-related,
non-personal, non-social interaction with coworkers and supervisors involving no
more than a brief exchange of information or hand off of product.”
4. Segobia argues that the ALJ failed to consider his ability to sustain
work. See Reddick v. Chater, 157 F.3d 715, 724 (9th Cir. 1998). But the ALJ
expressly considered Segobia’s allegation that “the severity of his psychological
impairment has affected his ability to engage in work duties for a sustained period”
and then discounted it, given that Segobia’s “statements concerning the intensity,
persistence and limiting effects of [his] symptoms [were] not entirely consistent with
the medical evidence and other evidence in the record.” Substantial evidence
supports that determination, including Segobia’s unremarkable MSEs and his self-
reports that he has successfully managed his symptoms with medication.
AFFIRMED.
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