Candice Lynn Cordileone v. Nancy A. Berryhill

[8] UNITED STATES DISTRICT COURT [9] CENTRAL DISTRICT OF CALIFORNIA [10] 11 ) CANDICE LYNN CORDILEONE, ) Case No. CV 18-06388-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 July 24, 2018, Candice Lynn Cordileone (“Plaintiff” or “Claimant”) filed a complaint 20 seeking review of the decision by the Commissioner of Social Security (“Commissioner”) 21 denying Plaintiff’s application for Social Security Disability Insurance benefits. (Dkt. 1.) The 22 Commissioner filed an Answer on December 12, 2018. (Dkt. 14.) On April 8, 2019, the parties 23 filed a Joint Stipulation (“JS”). (Dkt. 19.) 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 55 year-old female who applied for Social Security Disability Insurance 3 benefits on January 6, 2015, alleging disability beginning April 21, 2013. (AR 22.) The ALJ 4 determined that Plaintiff has not engaged in substantial gainful activity since April 21, 2013, the 5 alleged onset date. (AR 24.) 6 Plaintiff’s claim was denied initially on April 16, 2015. (AR 22.) Plaintiff filed a timely 7 request for hearing, which was held before Administrative Law Judge (“ALJ”) Susan Hoffman 8 on February 9, 2017, in West Los Angeles, California. (AR 22.) Plaintiff appeared and testified 9 at the hearing and was represented by counsel. (AR 22.) Vocational expert (“VE”) Aida Y. 10 Worthington also appeared and testified at the hearing. (AR 22, 78-96.) 11 The ALJ issued an unfavorable decision on June 6, 2017. (AR 22-32.) The Appeals 12 Council denied review on June 15, 2018. (AR 1-4.) 13 DISPUTED ISSUES 14 As reflected in the Joint Stipulation, Plaintiff raises the following disputed issues as 15 grounds for reversal and remand: 16 1. Whether the ALJ’s residual functional capacity assessment is supported by 17 substantial evidence. 18 2. Whether the ALJ properly evaluated Candice Cordileone’s subjective complaints. 19 3. Whether the ALJ satisfied the Commissioner’s burden at step five of the 20 sequential evaluation. 21 STANDARD OF REVIEW 22 Under 42 U.S.C. § 405 (g), this Court reviews the ALJ’s decision to determine whether 23 the ALJ’s findings are supported by substantial evidence and free of legal error. Smolen v. 24 Chater, 80 F.3d 1273 , 1279 (9th Cir. 1996); see also DeLorme v. Sullivan, 924 F.2d 841 , 846 25 (9th Cir. 1991) (ALJ’s disability determination must be supported by substantial evidence and 26 based on the proper legal standards). 27 Substantial evidence means “‘more than a mere scintilla,’ but less than a 28 preponderance.” Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting Richardson v. 4 | Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is “such relevant evidence as a 2 || reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 3 || 401 (internal quotation marks and citation omitted). 4 This Court must review the record as a whole and consider adverse as well as 5, | Supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Where g | evidence is susceptible to more than one rational interpretation, the ALJ’s decision must be 7 | upheld. Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). g || However, a reviewing court must consider the entire record as a whole and may not affirm g || simply by isolating a ‘specific quantum of supporting evidence.” Robbins, 466 F.3d at 882 40 | (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)); see also Orn v. Astrue, 495 41 | F.3d 625, 630 (9th Cir. 2007). 12 THE SEQUENTIAL EVALUATION 13 The Social Security Act defines disability as the “inability to engage in any substantial 44 | gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or . . . can be expected to last for a continuous period of not than 12 months.” 42 U.S.C. §§ 423 (d)(1)(A), 1382c(a)(3)(A). The Commissioner has 17 | established a five-step sequential process to determine whether a claimant is disabled. 20 C-F-R. §§ 404.1520, 416.920. 19 The first step is to determine whether the claimant is presently engaging in substantial 20 | gainful activity. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). If the claimant is engaging 24 | in substantial gainful activity, disability benefits will be denied. Bowen v. Yuckert, 482 U.S. 137 , 22 | 140 (1987). Second, the ALJ must determine whether the claimant has a severe impairment or 23 | combination of impairments. Parra, 481 F.3d at 746 . An impairment is not severe if it does not 24 | Significantly limit the claimant's ability to work. Smolen, 80 F.3d at 1290 . Third, the ALJ must 5, | determine whether the impairment is listed, or equivalent to an impairment listed, in 20 C.F.R. 26 | Pt. 404, Subpt. P, Appendix | of the regulations. Parra, 481 F.3d at 746 . If the impairment 27 | meets or equals one of the listed impairments, the claimant is presumptively disabled. Bowen, 2g | 482 U.S. at 141 . Fourth, the ALJ must determine whether the impairment prevents the 1 claimant from doing past relevant work. Pinto v. Massanari, 249 F.3d 840, 844-45 (9th Cir. 2 2001). Before making the step four determination, the ALJ first must determine the claimant’s 3 residual functional capacity (“RFC”). 20 C.F.R. § 416.920 (e). The RFC is “the most [one] can 4 still do despite [his or her] limitations” and represents an assessment “based on all the relevant 5 evidence.” 20 C.F.R. §§ 404.1545 (a)(1), 416.945(a)(1). The RFC must consider all of the 6 claimant’s impairments, including those that are not severe. 20 C.F.R. §§ 416.920 (e), 7 416.945(a)(2); Social Security Ruling (“SSR”) 96-8p. 8 If the claimant cannot perform his or her past relevant work or has no past relevant work, 9 the ALJ proceeds to the fifth step and must determine whether the impairment prevents the 10 claimant from performing any other substantial gainful activity. Moore v. Apfel, 216 F.3d 864 , 11 869 (9th Cir. 2000). The claimant bears the burden of proving steps one through four, 12 consistent with the general rule that at all times the burden is on the claimant to establish his or 13 her entitlement to benefits. Parra, 481 F.3d at 746 . Once this prima facie case is established 14 by the claimant, the burden shifts to the Commissioner to show that the claimant may perform 15 other gainful activity. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). To support 16 a finding that a claimant is not disabled at step five, the Commissioner must provide evidence 17 demonstrating that other work exists in significant numbers in the national economy that the 18 claimant can do, given his or her RFC, age, education, and work experience. 20 C.F.R. 19 § 416.912(g). If the Commissioner cannot meet this burden, then the claimant is disabled and 20 entitled to benefits. Id. 21 THE ALJ DECISION 22 In this case, the ALJ determined at step one of the sequential process that Plaintiff has 23 not engaged in substantial gainful activity since April 21, 2013, the alleged onset date. (AR 24 24.) 25 At step two, the ALJ determined that Plaintiff has the following medically determinable 26 severe impairments: cervical degenerative disc disease; joint dysfunction right shoulder; right 27 carpal tunnel syndrome; osteoarthritis bilateral knees; and morbid obesity. (AR 24-26.) [28] 1 At step three, the ALJ determined that Plaintiff does not have an impairment or 2 combination of impairments that meets or medically equals the severity of one of the listed 3 impairments. (AR 26.) 4 The ALJ then found that Plaintiff had the RFC to perform sedentary work as defined in [5] 20 CFR § 404.1567 (a), with the following limitations: 6 Claimant needs to change position or stretch every 30 minutes (without leaving 7 the workstation) and has the following additional (non-exertional) limitations: no 8 climbing ladders, ropes or scaffolds; only occasional climbing ramps/stairs, 9 stooping, kneeling, crouching, or crawling; frequent balancing; only occasional 10 handling or fingering with the right hand; and no concentrated exposure to 11 extreme heat or hazards. 12 (AR 26-30.) In determining the above RFC, the ALJ made a determination that Plaintiff’s 13 subjective symptom allegations were “not entirely consistent” with the medical evidence and 14 other evidence in the record. (AR 27.) 15 At step four, the ALJ found that Plaintiff is unable to perform any past relevant work as a 16 department manager, dog groomer, waitress and customer service clerk. (AR 30-31.) The 17 ALJ, however, also found at step five that, considering Claimant’s age, education, work 18 experience, and RFC, there are jobs that exist in significant numbers in the national economy 19 that Claimant can perform, including the jobs of information clerk and customer complaint clerk. 20 (AR 31-32.) 21 Consequently, the ALJ found that Claimant is not disabled within the meaning of the 22 Social Security Act. (AR 32.) 23 DISCUSSION 24 The ALJ decision must be affirmed. The ALJ’s RFC is supported by substantial 25 evidence. So is the ALJ’s step five determination that there are jobs in the national economy 26 that Plaintiff can perform. [28] | THE ALJ’S RFC IS SUPPORTED BY SUBSTANTIAL EVIDENCE 2 Plaintiff contends that the ALJ’s RFC is incomplete and lacks substantial evidence. The 3 || Court disagrees. 4 A. Relevant Federal Law 5 The ALJ’s RFC is not a medical determination but an administrative finding or legal g || decision reserved to the Commissioner based on consideration of all the relevant evidence, 7 | including medical evidence, lay witnesses, and subjective symptoms. See SSR 96-5p; 20 g | C.F.R. § 1527(e). In determining a claimant's RFC, an ALJ must consider all relevant evidence g | in the record, including medical records, lay evidence, and the effects of symptoms, including 1409 | Pain reasonably attributable to the medical condition. Robbins, 446 F.3d at 883. 11 In evaluating medical opinions, the case law and regulations distinguish among the Opinions of three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who 44 | neither examine nor treat the claimant (non-examining, or consulting, physicians). See 20 15| C-F-R. §§ 404.1527, 416.927; see also Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). In 16 || general, an ALJ must accord special weight to a treating physician’s opinion because a treating 17 | Physician “is employed to cure and has a greater opportunity to know and observe the patient 1g | as an individual.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citation omitted). If 49 | a treating source’s opinion on the issues of the nature and severity of a claimant's impairments 20 | is well-supported by medically acceptable clinical and laboratory diagnostic techniques, and is 24 | not inconsistent with other substantial evidence in the case record, the ALJ must give it 22 | “controlling weight.” 20 C.F.R. §§ 404.1527 (d)(2), 416.927(d)(2). 23 Where a treating doctor’s opinion is not contradicted by another doctor, it may be 24 | rejected only for “clear and convincing” reasons. Lester, 81 F.3d at 830 . However, if the 95, | treating physician’s opinion is contradicted by another doctor, such as an examining physician, 26 | the ALJ may reject the treating physician’s opinion by providing specific, legitimate reasons, 97 | Supported by substantial evidence in the record. Lester, 81 F.3d at 830-31 ; see also Orn, 495 2g | F.3d at 632; Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Where a treating Rr 1 || physician's opinion is contradicted by an examining professional’s opinion, the Commissioner 2 | 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. See Andrews v. 4 || Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995); Orn, 495 F.3d at 632. Similarly, to reject an 5 | uncontradicted opinion of an examining physician, an ALJ must provide clear and convincing 6 | reasons. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). If an examining physician’s 7 | opinion is contradicted by another physician’s opinion, an ALJ must provide specific and 8 | legitimate reasons to reject it. Id. However, “[t]he opinion of a non-examining physician cannot 9 || by itself constitute substantial evidence that justifies the rejection of the opinion of either an 10 | examining physician or a treating physician”; such an opinion may serve as substantial 11 || evidence only when it is consistent with and supported by other independent evidence in the 12 | record. Lester, 81 F.3d at 830-31 ; Morgan, 169 F.3d at 600 . 13 B. The ALJ’s RFC Is Not Incomplete 14 Plaintiff alleges disability due to an injury to the right upper extremity while working as a 15 | dog groomer. (AR 24.) She also alleges degenerative disc disease, carpal tunnel syndrome, 16 | and significant bilateral knee osteoarthritis. (AR 24, 25.) The ALJ did find that Plaintiff had the 17 | medically determinable severe impairments of cervical degenerative disc disease, joint 18 | dysfunction right shoulder, osteoarthritis bilateral knees, and morbid obesity. (AR 24.) 19 | Nonetheless, the ALJ concluded that Plaintiff could perform a reduced range of sedentary work 20 || and, therefore, was not disabled. (AR 26, 32.) 21 1. Head And Neck Limitations 22 The ALJ determined that Plaintiff could perform a reduced range of sedentary work with 23 | only occasional fingering and handling with the right hand and did not require any additional 24 || head or neck limitations. Plaintiff contends that the omission of head and neck limitations was 25 | error rendering the ALJ’s RFC incomplete. The Court disagrees. 26 First, in regard to Plaintiff's cervical degenerative disc disease, Dr. Mark Greenspan, an 27 | orthopedist and the Agreed Medical Examiner in Plaintiffs workers’ compensation case, opined 28 | that Plaintiff was precluded from repetitive flexion, extension, and rotary motions of the head 1 and neck. (AR 1345.) The ALJ did not adopt these limitations or include them in the RFC. 2 The ALJ noted that Dr. Greenspan found that Plaintiff had moderate degenerative changes of 3 the cervical spine. (AR 28.) He reported Plaintiff was not wearing a neck brace and had a 4 normal neck position on examination in August 2015. (AR 28.) Dr. Greenspan found only 5 mildly limited neck range of motion in all directions. (AR 28.) He found Plaintiff was capable of 6 returning to light work and opined she should be precluded from lifting 25 pounds and from 7 repetititve flexion, extension, and rotary motions of the head and neck. (AR 28, 30.) 8 The ALJ gave greater weight to the opinion of State Agency reviewing physician Dr. M. 9 Gleason who did not find that any head or neck limitations were necessary. (AR 30.) The ALJ 10 found that Dr. Gleason’s opinion was more consistent with the medical evidence and other 11 evidence of record. (AR 30.) For example, in July 2013 orthopedic surgeon Dr. Robert Reisch 12 suggested possible “symptom magnification” and specifically noted that MRI’s of Claimant’s 13 neck showed only mild abnormalities. (AR 27-28.) Claimant exhibited pain free range of 14 motion of the cervical spine, intact sensation, and full motor strength. (AR 28.) More recent 15 records from treating physician Michael Schiffman characterize Plaintiff’s pain as slight to 16 moderate, increasing to severe only occasionally. (AR 29.) The ALJ also relied on other 17 evidence of record such as Plaintiff’s daily activities such as walking for exercise, driving, going 18 to the grocery store, doing household chores, seeking to become a veterinarian assistant, 19 working at a computer, and using a mouse and keyboard and her admission that she believes 20 she is capable of doing “office things.” (AR 29.) An ALJ may reject a physician’s opinion that is 21 contradicted by a claimant’s own admitted or observed abilities. Bayliss, 427 F.3d at 1216 . 22 The Court also notes that the ALJ discounted Plaintiff’s subjective symptom allegations 23 discussed below. Thus, the ALJ’s exclusion of any head and neck limitations from the RFC is 24 supported by substantial evidence. 25 Plaintiff disagrees with the ALJ’s assessment of the evidence, but it is the ALJ’s 26 responsibility to resolve conflicts in the medical evidence and ambiguities in the record. 27 Andrews, 53 F.3d at 1039 . Where the ALJ’s interpretation of the record of the record is reasonable as it is here, it should not be second-guessed. Rollins v. Massanari, 261 F.3d at 1 853, 857 (9th Cir. 2001); Thomas, 278 F.3d at 954 (“Where the evidence is susceptible to more 2 than rational interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion 3 must be upheld”). 4 The ALJ rejected Dr. Greenspan’s head and neck limitations for specific, legitimate 5 reasons supported by substantial evidence. 6 2. Right Shoulder Limitations 7 Dr. Greenspan found that Plaintiff had a chronic right shoulder impairment but no 8 atrophy of the right upper extremity. (AR 28.) He found Plaintiff had pain with external rotation 9 of the right shoulder, but both shoulders were normal to palpation and tests for impingement 10 and/or rotator cuff tear were negative. (AR 28.) Dr. Greenspan opined that Plaintiff should be 11 precluded from lifting over 10 pounds and repetitive pushing and pulling at/or above shoulder 12 level. (AR 28.) Dr. Gleason also opined that Claimant could perform light work with occasional 13 pushing and pulling with the right upper extremity. (AR 30.) 14 The ALJ, however, did not include any pushing or pulling limitation in the RFC, based on 15 the medical evidence of record. A right shoulder MRI in May 2013 showed no evidence of 16 rotator cuff tear or significant AC joint arthritis. (AR 24-25.) Dr. Reisch noted an MRI of the 17 shoulder that showed only mild abnormalities. (AR 27-28.) Following successful carpal tunnel 18 and thoracic syndrome surgery, Plaintiff demonstrated “substantial clinical improvement,” 19 including impressive movement in right shoulder range of motion. (AR 28.) Recent records of 20 pain management physician Dr. Nick Fuller indicate Plaintiff had full range of motion of the right 21 shoulder and that placing the Claimant’s hand over her shoulder does not aggravate her pain. 22 (AR 29.) The ALJ rejected the pushing and pulling limitations of Dr. Greenspan and Dr. 23 Gleason for specific, legitimate reasons supported by substantial evidence, contradicting 24 physician opinions, inconsistent daily activities and unsubstantiated subjective symptom 25 allegations discussed below. 26 3. Harmless Error 27 Based on VE testimony, the ALJ determined at step five of the sequential process that Plaintiff could perform alternative jobs in the national economy, including information clerk 1 | (DOT 237.367-022) and customer complaint clerk (DOT 241.367-014). (AR 32.) The 2 | Dictionary of Occupational Titles (“DOT”) duty descriptions for both of these sedentary office3 | type occupations do not require repetitive head and neck motions or any pushing or pulling 4 || more than occasionally as Dr. Greenspan proposed. Thus, adding the limitations omitted from 5 | the RFC would not change the outcome of the case. Any error would be harmless. See 6 | Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (error is harmless when it is 7 || “inconsequential to the ultimate nondisability determination”), quoting Stout v. Commrr, 454 8 | F.3d 1050, 1055-56 (9th Cir. 2006); Carmichael v. Comm’r Soc. Sec. Adm., 533 F.3d 1155 , 9 | 1162 (9th Cir. 2008) (error is harmless where it would not change the outcome of the disability 10 | determination). Plaintiff never addressed this dispositive argument. 11 C. The ALJ Properly Discounted Plaintiff's Subjective Symptom Allegations 12 Plaintiff contends that the ALJ erred in discounting Plaintiff's subjective symptom 13 | allegations. The Court disagrees. 14 1. Relevant Federal Law 15 The test for deciding whether to accept a claimant’s subjective symptom testimony turns 16 | on whether the claimant produces medical evidence of an impairment that reasonably could be 17 | expected to produce the pain or other symptoms alleged. Bunnell v. Sullivan, 947 F.2d 341 , 18 || 346 (9th Cir. 1991); see also Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998); Smolen, 80 F.3d at 1281 -82 esp. n.2. The Commissioner may not discredit a claimant’s testimony on the 20 | severity of symptoms merely because they are unsupported by objective medical evidence. 21 || Reddick, 157 F.3d at 722 ; Bunnell, 947 F.2d at 343, 345 . If the ALJ finds the claimant’s pain 22 | testimony not credible, the ALJ “must specifically make findings which support this conclusion.” 23 | Bunnell, 947 F.2d at 345 . The ALJ must set forth “findings sufficiently specific to permit the 24 || court to conclude that the ALJ did not arbitrarily discredit claimant’s testimony.” Thomas, 278 25 | F.3d at 958; see also Rollins, 261 F.3d at 857; Bunnell, 947 F.2d at 345-46 . Unless there is 26 | evidence of malingering, the ALJ can reject the claimant’s testimony about the severity of a 27 | claimant’s symptoms only by offering “specific, clear and convincing reasons for doing so.” 28 | Smolen, 80 F.3d at 1283-84 ; see also Reddick, 157 F.3d at 722 . The ALJ must identify what 4N 1 testimony is not credible and what evidence discredits the testimony. Reddick, 157 F.3d at 2 722; Smolen, 80 F.3d at 1284 . 3 2. Analysis 4 In determining Plaintiff’s RFC, the ALJ concluded that Plaintiff’s medically determinable 5 impairments reasonably could be expected to cause the alleged symptoms. (AR 27.) The ALJ, 6 however, also found that Plaintiff’s statements regarding the intensity, persistence, and limiting 7 effects of these symptoms are “not entirely consistent with the medical evidence and other 8 evidence in the record.” (AR 27.) Because the ALJ did not make any finding of malingering, 9 she was required to provide clear and convincing reasons supported by substantial evidence 10 for discounting Plaintiff’s subjective symptom allegations. Smolen, 80 F.3d at 1283-84 ; 11 Tommasetti, 533 F.3d at 1039-40. The ALJ did so. 12 First, the ALJ found that Plaintiff’s subjective symptom allegations were inconsistent with 13 the credited medical evidence. (AR 30.) An ALJ is permitted to consider whether there is a 14 lack of medical evidence to corroborate a claimant’s alleged symptoms so long as it is not the 15 only reason for discounting a claimant’s subjective symptoms. Burch v. Barnhart, 400 F.3d 16 676, 680-81 (9th Cir. 2005). Here, as already noted, in July 2013 Dr. Reisch suggested 17 “symptom magnification,” noting that MRI’s of the neck and shoulder showed only mild 18 abnormalities with pain free motion of the spine. (AR 27-28.) Plaintiff did not exhibit any 19 serious clinical deficits in a comprehensive orthopedic examination conducted by Dr. 20 Greenspan in August 2015. He found moderate degenerative changes of the cervical spine. 21 (AR 28.) He observed Plaintiff was not wearing a neck brace and had normal neck position. 22 (AR 28.) She only had mildly limited neck range of motion. (AR 28.) Dr. Greenspan gave her 23 a light work RFC, indicating she could return to work. (AR 28.) Dr. Gleason also gave Plaintiff 24 a light work RFC. (AR 30.) The ALJ limited Plaintiff to sedentary work because of her knee 25 conditions, as sedentary work involves relatively little standing or walking. (AR 29, 30.) The 26 ALJ also added a limitation that Plaintiff would need to change position every 30 minutes to 27 accommodate her knee impairment. (AR 30.) The ALJ noted Plaintiff did not use a cane or ambulatory assistive device for walking and has not received treatment for her knee conditions. 1 (AR 29.) As already noted, moreover, the ALJ rejected certain limitations proposed by Dr. 2 Greenspan and Dr. Gleason but even if they were added to the RFC the jobs selected by the 3 VE would not be precluded. 4 Second, Plaintiff underwent a successful surgery for carpal tunnel syndrome and 5 thoracic syndrome. (AR 28.) She demonstrated “substantial clinical improvement,” including 6 impressive right improvement in right shoulder range of motion. (AR 28.) Improvement from 7 treatment supports an adverse inference as to a claim of ongoing disability. Morgan, 169 F.3d 8 at 599 . 9 Third, the ALJ found that Plaintiff’s admitted daily activities are inconsistent with 10 disabling limitations (AR 29), which is a legitimate consideration in evaluating a claimant’s 11 subjective symptom allegations. Bunnell, 947 F.2d at 345-346 . Here, the ALJ recounted how 12 Plaintiff walks for exercise, remains capable of driving, goes to the grocery store, and does 13 household chores such as cleaning, vacuuming, and mopping. (AR 29.) She admitted she 14 believes herself capable of doing “office things.” (AR 29.) She can use a keyboard and a 15 mouse. (AR 29.) She has completed half her schooling to become a veterinary assistant. (AR 16 29.) She does not need a cane or an ambulatory assistance device for walking. (AR 29.) 17 Plaintiff argues that her daily activities do not prove she can work on a full-time basis but they 18 do suggest Plaintiff has greater functional ability than she admits. See Valentine v. Comm’r, [19] 574 F.3d 685, 694 (9th Cir. 2009). 20 Plaintiff disputes the ALJ’s findings regarding Plaintiff’s subjective symptom allegations, 21 but again it is the ALJ’s responsibility to resolve conflicts in the medical evidence and 22 ambiguities in the record. Andrews, 53 F.3d at 1039 . Where the ALJ’s interpretation of the 23 record of the record is reasonable, as it is here, it should not be second-guessed. Rollins, 261 24 F.3d at 857; Thomas, 278 F.3d at 954 (“Where the evidence is susceptible to more than 25 rational interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be 26 upheld”). [27] 1 The ALJ properly discounted Plaintiff’s subjective symptom allegations for clear and 2 convincing reasons supported by substantial evidence. The ALJ’s RFC is supported by 3 substantial evidence. 4 II. THE ALJ’S STEP FIVE DETERMINATION THAT PLAINTIFF CAN PERFORM ALTERNATIVE WORK IN THE NATIONAL ECONOMY IS SUPPORTED BY 5 SUBSTANTIAL EVIDENCE 6 The ALJ found at step four of the sequential process that Plaintiff is unable to perform 7 any past relevant work. (AR 30.) The VE, however, testified that Plaintiff acquired skills from 8 her department manager and customer service clerk jobs that are transferable to light and 9 sedentary exertional levels. (AR 30.) The VE indicated that Plaintiff could perform alternate 10 jobs in the national economy, including information clerk and customer complaint clerk, with her 11 acquired skills from her past relevant occupations. (AR 32.) Consequently, the ALJ found 12 Plaintiff not disabled at step five of the sequential process. (AR 32.) 13 Plaintiff contends that the ALJ’s transferability findings are not supported by substantial 14 evidence. The Court disagrees. 15 A. Relevant Federal Law 16 Social Security Regulation § 404.1568(d) informs the transferability of skills analysis 17 (“TSA”). Section 1568(d)(1) defines transferable skills that can be used in other jobs “when the 18 skilled or semi-skilled work activities you did in past work can be used to meet the requirements 19 of skilled or semi-skilled work activities of other jobs or kinds of work.” Transferability “depends 20 largely on the similarity of occupationally significant work activities among different jobs.” Id. 21 Section 1568(d)(2) provides that transferability is most probable when: 22 (i) The same or lesser degree of skill is required; 23 (ii) The same or similar tools and machines are used; and 24 (iii) The same or similar raw materials, products, processes or services are 25 involved. 26 Section 1568(d)(3), however, cautions that complete similarity of these three factors is “not 27 necessary for transferability.” 1 SSR 82-41 ( 1982 WL 31389 ) provides further gloss on transferability of skills. SSR 822 41, at *5 provides that transferability is most probable and meaningful among the jobs in which 3 the same or lesser degree of skill is required and that, generally, the greater the degree of 4 acquired skills, the less difficulty an individual will experience in transferring skills to other jobs. 5 SSR 82-41, at *5. SSR 82-41, at *7, moreover, requires the ALJ to make findings of fact and 6 include them in the written decision. More specifically, “when a finding is made that a claimant 7 has transferable skills, the acquired skills must be identified and specific occupations to which 8 the acquired work skills are transferable must be cited . . . in the ALJ’s decision.” See 9 also Bray v. Comm’r of Soc. Sec. Adm., 554 F.3d 1219, 1223-26 (9th Cir. 2009) (ALJ 10 transferability decision reversed for failing to make the findings required by SSR 82-41); 11 Renner v. Heckler, 786 F.2d 1421, 1423 (9th Cir. 1986) (ALJ transferability decision reversed 12 because no finding on amount of vocational adjustment required). 13 B. Analysis 14 The ALJ plainly made the findings required by SSR 82-41 and Section 1568(d). The 15 alternate jobs selected by the VE require the same or lesser skills than Plaintiff acquired from 16 her past relevant work. (AR 31, 32.) The acquired skills, according to the VE, include 17 supervision, management, customer service, cashiering, providing and obtaining information, 18 handling customer complaints, scheduling appointments, answering phones, and reception. 19 (AR 31.) The VE testified that Plaintiff’s acquired skills would transfer to the alternate 20 occupations with little if any vocational adjustment in terms of tools, work processes, work 21 settings, or the industry. (AR 32.) No more was required. The ALJ properly relied on the VE’s 22 testimony (AR 78-96) for the transferability findings. Bayliss, 427 F.3d at 1218 . (VE’s 23 recognized expertise provides the necessary foundation for his or her testimony; “no additional 24 foundation is required”). 25 Plaintiff contends that the ALJ erred in not using the codes for Work Fields (“WF”) and 26 Materials, Products Subject Matter and Services (“MPSMS”) from an internal agency Manual 27 Program Operations Manual System (“POMS”) DT 25015.017. Plaintiff’s argument fails. The law of this Circuit is clear that POMS, as an internal policy guidance manual, does not impose 1 judicially enforceable duties. Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1075 (9th 2 Cir. 2010). Courts in this Circuit, moreover, explicitly have rejected the argument that 3 transferability of skills requires similarity of work fields (“WF”) or Materials, Products, Subject 4 matter and Services (“MPSMS”). Garcia v. Astrue, 2012 WL 4091847 , at *7 (E.D. Cal. Sept. 5 17, 2012); Engel v. Colvin, 2015 WL 6453081 , at *5 (C.D. Cal. Oct. 23, 2015). 6 The ALJ’s transferability of skills findings are supported by substantial evidence. 7 * * * 8 The ALJ’s nondisability determination is supported by substantial evidence and free of 9 legal error. 10 ORDER 11 IT IS HEREBY ORDERED that Judgment be entered affirming the decision of the 12 Commissioner of Social Security and dismissing this case with prejudice. [13] 14 DATED: November 7, 2019 /s/ John E. McDermott JOHN E. MCDERMOTT 15 UNITED STATES MAGISTRATE JUDGE