NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 29 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELVIRA MEDINA MOLINA, No. 17-35261
Plaintiff-Appellant, No. 3:16-cv-00120-TC
v. MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Thomas M. Coffin, Magistrate Judge, Presiding
Submitted May 24, 2018**
Before: LEAVY, TROTT, and SILVERMAN, Circuit Judges.
Elvira Medina Molina appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of her application for disability
insurance benefits and supplemental security income under Titles II and XVI of the
Social Security Act. We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 405(g). We review de novo, Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir.
2016), and we affirm.
I. Dr. DeJana’s Opinion
The ALJ provided a germane reason to reject chiropractor Dr. DeJana’s
opinion. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th
Cir. 2008). The ALJ cited Dr. DeJana’s opinion that Medina Molina’s limitations
would only last two weeks, therefore, Dr. DeJana’s opinion does not support the
assertion that Medina Molina’s limitations fulfilled the duration requirements for
disability under the Act. See Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir.
2012) (quoting 42 U.S.C. § 423(d)(1)(A)).
II. Nurse Pappas’ Opinion
The ALJ did not err by discounting Nurse Pappas’ opinion. The ALJ cited
the inconsistency between Medina Molina’s ability to care for her grandchildren
and the limitations Nurse Pappas delineated. Such a conflict between a claimant’s
daily activities and a medical opinion serves as a germane reason for rejecting the
medical opinion. See Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001).
While the ALJ may have inaccurately characterized Medina Molina’s care for her
grandchildren as involving lifting the grandchildren, the ALJ also reasoned Nurse
Pappas’ lifting restriction conflicted with other aspects of their care, such as
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making them dinner. Thus, the ALJ reasonably interpreted the evidence. See
Ryan v. Comm’r Soc. Sec. Admin., 528 F.3d 1194, 1198 (9th Cir. 2008).
III. Medina Molina’s Testimony
The ALJ proffered specific, clear, and convincing reasons for discounting
Medina Molina’s testimony, including the lack of treatment and supporting
medical evidence, the conservative nature of her treatment, the fact that she
stopped working for reasons unrelated to her health, and inconsistencies between
her alleged limitations and activities. See Bray v. Comm’r Soc. Sec. Admin., 554
F.3d 1219, 1227 (9th Cir. 2009); Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th
Cir. 2008); Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001); Molina, 674
F.3d at 1112.
Medina Molina’s argument that the ALJ incorrectly interpreted her
inconsistent testimony at her hearing as a deliberate “attempt to mislead” does not
address the actual grounds upon which the ALJ discounted her testimony. The
ALJ pointed to evidence that Medina Molina cared for her grandchildren and
traveled to Mexico and California after her alleged disability onset date as
examples of activities that were inconsistent with her alleged limitations. The ALJ
did not state she relied upon contradictions within her testimony to reject her
statements.
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Any error the ALJ committed by citing Medina Molina’s gaps in medical
treatment as a basis for discounting her testimony was harmless. Medina Molina
asserts she lacked funds for treatment, and “disability benefits may not be denied
because of the claimant’s failure to obtain treatment [s]he cannot obtain for lack of
funds.” See Orn v. Astrue, 495 F.3d 625, 636-38 (9th Cir. 2007). However, any
error was harmless because the ALJ provided other valid reasons for discounting
Medina Molina’s testimony. See Carmickle, 533 F.3d at 1162.
IV. Lay Witness Testimony
The ALJ provided germane reasons for discounting the lay witness
testimony from Medina Molina’s husband, Juan Cardenas, including the
inconsistencies between the medical evidence and Mr. Cardenas’ statements, as
well as Medina Molina’s “functional abilities” and Mr. Cardenas’ reliance upon his
wife’s subjective descriptions of her impairments. See Diedrich v. Berryhill, 874
F.3d 634, 640 (9th Cir. 2017). Furthermore, any error was harmless, as Mr.
Cardenas’ testimony described substantially similar limitations as his wife’s
testimony, and the “ALJ’s reasons for rejecting [Medina Molina’s] testimony apply
with equal force to the lay testimony.” See Molina, 674 F.3d at 1122.
V. Step Four Findings
While the vocational expert’s characterization of all three of Medina
Molina’s previous hand-packaging jobs as sedentary was inaccurate, the error was
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harmless. The ALJ was not required to find could perform all of her past relevant
work, and substantial evidence in the record still supports the ALJ’s finding
because Medina Molina testified at least one of her hand-packaging jobs permitted
her to sit or stand at will, consistent with her residual functional capacity (“RFC”).
See Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001).
Although Medina Molina argues she was absent twice per week towards the
end of her last job, the ALJ permissibly found Medina Molina was capable of
performing the “actual functional demands and job duties of a particular past
relevant job,” rather than the “functional demands . . . of the occupation as
generally required by employers throughout the national economy.” See Pinto,
249 F.3d at 845; Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002).
Medina Molina’s RFC does not conflict with the requirements for the
position of hand packager. The Dictionary of Occupational Titles 920.587-018
defines hand packager as requiring a General Education Development (“GED”)
reasoning level of 2, requiring the ability to “carry out detailed but uninvolved
written or oral instructions,” as opposed to GED Level 1 reasoning, which entails
the ability to “carry out simple one- or two-step instructions.” While we have
found RFC’s limiting claimants to “one-and two-step tasks” conflict with the
requirements of Level 2 reasoning, which entails the ability to “[a]pply
commonsense understanding to carry out detailed but uninvolved written or oral
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instructions,” we have distinguished these cases from those in which the ALJ
“merely restrict[ed]” the claimants to “simple” tasks, as the ALJ did here. See
Rounds v. Comm’r of Soc. Sec., 807 F.3d 996, 1003-04 (9th Cir. 2015). As a
result, no conflict exists here.
The ALJ did not err by omitting Medina Molina’s mental limitations in the
hypothetical to the vocational expert. Vocational expert testimony is “useful, but
not required” at Step Four. See Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir.
1993). The ALJ decided this case at Step Four, therefore, the requirement that the
hypothetical include all of the claimant’s limitations did not apply. See id.
AFFIRMED.
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