Luis Flores v. Carolyn W. Colvin

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FILED
NOV 01 2013
LUIS FLORES, No. 11-17786 MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

Plaintiff - Appellant, D.C. No. 4:10-cv-04101-DMR

v.
MEMORANDUM*
CAROLYN W. COLVIN ,****
Commissioner Social Security,

Defendant - Appellee.

Appeal from the United States District Court
for the Northern District of California
Donna M. Ryu, Magistrate Judge, Presiding

Submitted October 16, 2013**
San Francisco, California

Before: THOMAS and McKEOWN, Circuit Judges, and BENNETT, District
Judge.***

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Mark W. Bennett, District Judge for the U.S. District
Court for the Northern District of Iowa, sitting by designation.
****
Carolyn W. Colvin is substituted for her predecessor, Michael J.
Astrue, as Commissioner of Social Security. Fed R. App. P. 43(c)(2).
Plaintiff-Appellant Luis Flores appeals from the district court’s judgment

affirming the Commissioner of Social Security’s denial of his application for

Social Security disability insurance benefits and supplemental security income

under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 40 and 1381 et

seq. Flores contends the ALJ erred in: (1) failing to properly credit the opinions of

his treating physicians; (2) failing to properly evaluate his testimony concerning

his functional limitations and pain and his English ability; (3) failing to credit the

testimony of the vocational expert (“VE”) in response to hypothetical questions

that Flores contends accurately reflected his functional limitations; and (4) basing

his finding at step five of the sequential evaluation process on testimony of the VE,

that was inconsistent with the Dictionary of Occupational Titles (“DOT”). We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review de novo the district court’s decision upholding the denial of

benefits. Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). We must affirm the

denial of benefits unless it is based on legal error or the findings of fact are not

supported by substantial evidence. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir.

2012).

1. The ALJ gave “specific and legitimate reasons supported by

substantial evidence” for rejecting a portion of the opinions of Drs. Davis and

2
Hearst, two of Flores’s treating physicians. Lester v. Chater, 81 F.3d 821, 830 (9th

Cir. 1995) (internal citation omitted); see also Widmark v. Barnhart, 454 F.3d

1063, 1066–67 (9th Cir. 2006) (holding that the “specific and legitimate” standard

applies where there is a conflict between the opinions of an examining physician

and a reviewing physician). The ALJ properly rejected a portion of Dr. Davis’s

opinion because his opinion was ten years old, two more recent opinions by other

treating physicians contained contradictory information, and the reviewing

physician’s opinion, on which the ALJ relied, was based on a review of the

complete case record, which included medical reports from specialists who

provided more detailed and comprehensive information than what was available to

Dr. Davis. The ALJ also properly rejected the opinion of Dr. Hearst because his

opinion was “brief, conclusory, and inadequately supported by clinical findings.”

Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012) (internal citation and

alteration omitted).

2. If an ALJ determines “the claimant has presented objective medical

evidence of an underlying impairment which could reasonably be expected to

produce the pain or other symptoms alleged,” and “there is no evidence of

malingering, the ALJ can reject the claimant’s testimony about the severity of her

symptoms only by offering specific, clear and convincing reasons for doing so.”

3
Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (internal quotation

marks and citations omitted). Flores met the initial requirement because he

provided evidence that his underlying impairments could reasonably be expected

to produce some degree of pain, and there was no finding by the ALJ that Flores

was “malingering.” However, the ALJ provided clear and convincing reasons for

his adverse credibility finding concerning Flores’s pain testimony. First, Flores’s

subjective statements about the severity of his pain were inconsistent with the

medical evidence in the record. Second, Flores’s daily activities were not

indicative of the degree of pain he alleged. These reasons provide substantial

evidence to support the ALJ’s adverse credibility determination. See Tommasetti

v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); Lingenfelter, 504 F.3d at 1040.

The ALJ also offered clear and convincing reasons for his adverse credibility

finding that Flores could understand basic verbal English. First, Flores was taking

courses in English and math at a community college. Second, Flores worked for

twelve years in a grocery store and was required to converse, at least to some

degree, in English with his supervisors, co-workers, and customers. See Burch v.

Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (holding that when evidence is

susceptible to more than one rational interpretation, the ALJ’s conclusion must be

upheld).

4
3. Substantial evidence supports the ALJ’s exclusion of a “reaching”

restriction from the hypothetical question posed to the VE. The ALJ’s exclusion of

that restriction was based on the proper rejection of a portion of Dr. Davis’s

opinion. Thus, because the Residual Functional Capacity (“RFC”) assessment was

not defective and the hypothetical incorporated all of the physical limitations from

the RFC, the hypothetical was proper. See Valentine v. Comm’r of Soc. Sec., 574

F.3d 685, 690 (9th Cir. 2009) (explaining that the hypothetical question is derived

from the RFC).

4. The ALJ erred by failing to inquire whether the VE’s testimony

regarding the job requirements for ticket taker (DOT 344.667–010) conflicted with

the DOT. SSR 00-4p, 2000 WL 1898704 (Dec. 4, 2000); see Massachi v. Astrue,

486 F.3d 1149, 1152–53 (9th Cir. 2007). However, the ALJ’s failure to follow the

procedural requirements of SSR 00-4p was harmless because the VE

acknowledged that his description of the position varied from the DOT’s and he

offered reasonable explanations for using a differing description. See Massachi,

486 F.3d at 1154 n.19 (observing ALJ’s failure to ask VE whether her testimony

conflicted with the DOT and, if so, whether there was a reasonable explanation for

the conflict was a harmless procedural error where no conflict existed or the VE

provided “sufficient support for her conclusion” justifying any potential conflicts).

5
The VE testified that although the DOT does not discuss a sit-stand option, his

testimony was limited to positions with that option. He also described why the

DOT’s language and math ability requirements did not disqualify Flores from the

position. Substantial evidence therefore supports the ALJ’s reliance on the VE’s

testimony.

For all the foregoing reasons, the judgment of the district court is

AFFIRMED.