Andrew Terrey v. Nancy Berryhill

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 24 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

ANDREW C. TERREY, No. 14-17218

Plaintiff-Appellant, D.C. No. 2:13-cv-01375-MEA

v.
MEMORANDUM *
NANCY A. BERRYHILL, Acting
Commissioner Social Security,

Defendant-Appellee.

Appeal from the United States District Court
for the District of Arizona
Mark E. Aspey, Magistrate Judge, Presiding

Submitted December 14, 2016**
San Francisco, California

Before: O’SCANNLAIN, GOULD, and M. SMITH, Circuit Judges.

Andrew Terrey appeals from the district court’s judgment affirming the

Commissioner of Social Security’s denial of his application for supplemental

security income (SSI) pursuant to Title XVI of the Social Security Act, 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).
§§ 1381–1383. We assume the parties’ familiarity with the facts and procedural

history of this case, and discuss them only as necessary to explain our decision.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

1. The Administrative Law Judge (ALJ) did not err in rejecting Terrey’s

subjective symptom testimony. When there is no evidence of malingering, “[an]

ALJ can reject the claimant’s testimony about the severity of [his] symptoms only

by offering specific, clear and convincing reasons for doing so.” Lingenfelter v.

Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (citation omitted). The ALJ

articulated three specific reasons for discounting Terrey’s subjective symptom

testimony on the basis of his prior part-time employment at a Blockbuster Video

store: (1) Terrey’s “allegedly disabling impairments were present at approximately

the same level of severity [during his time at Blockbuster] as existed at the time of

[his SSI] application date,” (2) evidence in the record indicated that Terrey had

been laid off from this job due to the recession as opposed to impairments-related

workplace performance issues, and (3) Terrey inconsistently described the scope of

his workplace performance issues when asked substantially similar questions by

the ALJ and his own attorney. Because these reasons are supported by the record,

the ALJ provided sufficient explanation for determining that Terrey’s prior work

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experience at Blockbuster “diminishes the persuasiveness of [his] allegations that

he cannot engage in sustained work activity due to his impairments.”

Having concluded that the ALJ permissibly discounted Terrey’s subjective

symptom testimony on the basis of his work experience at Blockbuster, we need

not address Terrey’s claims that the ALJ erroneously relied upon Terrey’s medical

evidence and daily activities as additional grounds for discounting his symptom

testimony because any error would be harmless. See Molina v. Astrue, 674 F.3d

1104, 1115 (9th Cir. 2012) (“[H]armless error principles apply in the Social

Security Act context.”).

2. The ALJ’s assessment of Terrey’s residual functional capacity (RFC)

incorporated all of the limitations identified by Dr. Raun Melmed. “[A]n ALJ’s

assessment of a claimant adequately captures restrictions related to concentration,

persistence, or pace where the assessment is consistent with restrictions identified

in the medical testimony.” Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th

Cir. 2008). Dr. Melmed found Terrey to have (1) “moderately severe” limitation

in his abilities to “[u]nderstand, carry out, and remember instructions,” “[r]espond

to customary work pressures,” and “[p]erform complex tasks,” and (2) “mild”

limitation in his abilities to “relate to other people,” “[p]erform simple tasks,” and

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“[p]erform varied tasks.” Dr. Melmed also noted that “[s]upervision is required.”

Because Dr. Melmed’s assessment was presented in a form listing limitations with

possible ratings of “none,” “mild,” “moderate,” “moderately severe,” and “severe,”

which Dr. Melmed then circled, the ALJ permissibly translated these limitations

into an RFC assessment of “simple and unskilled work” that “must be checked by

a supervisor two to three times a day.” See id. at 1174 (affirming an ALJ’s

translation of a claimant’s identified limitations into the “only concrete

restrictions” identified by the claimant’s physicians); see also Molina, 674 F.3d at

1111 (holding that an ALJ may reject generic, standardized, check-box forms that

do not provide explanations for the physician’s conclusions).

3. Dr. Sristi Nath’s finding that Terrey can “maintain attention and

concentration for brief periods”, does not contradict the ALJ’s assessment of

Terrey’s RFC. Terrey argues that this finding, which the ALJ specifically credited,

contradicts the ALJ’s assessment that Terrey can perform “simple and unskilled

work” because the Social Security Administration Program Operations Manual

System (POMS) lists the ability to “maintain attention for extended periods of 2-

hour segments” as a requirement for unskilled work. POMS DI 25020.010(B)(3)

(emphasis added). But Terrey’s reliance on the POMS definition of unskilled work

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is misplaced. The substance of the POMS attention requirement for unskilled work

is the ability to maintain attention for “2-hour segments,” not “extended periods,”

and the POMS further notes that “concentration is not critical” for such work. See

id. The ALJ’s assessment of Terry’s RFC was therefore consistent with Dr. Nath’s

findings.

4. Dr. Larry Waldman’s finding that Terrey was “[m]oderately

[l]imited” in his “ability to maintain attention and concentration for extended

periods,” does not contradict the ALJ’s assessment of Terrey’s RFC. The POMS

explains that an ALJ must determine a claimant’s RFC based upon the narrative

written by the psychiatrist or psychologist in section III of the Mental Residual

Functional Capacity Assessment form. POMS DI 25020.010(B)(1). Because Dr.

Waldman did not include any attention or concentration limitations in his narrative

of Terrey’s RFC in section III of the Mental Residual Functional Capacity

Assessment Form, the ALJ did not err by failing to include these limitations in

Terrey’s RFC.

5. Because we conclude that the ALJ’s assessment of Terrey’s RFC was

accurate, the ALJ did not err by failing to conduct a function-by-function analysis

or by posing a hypothetical to the vocational expert that did not include the

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attention and concentration limitations that the ALJ allegedly overlooked. See

Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (“Preparing a function-

by-function analysis for medical conditions or impairments that the ALJ found

neither credible nor supported by the record is unnecessary.”); id. (finding reliance

on a vocational expert to be “proper” where “[t]he hypothetical that the ALJ posed

to the [vocational expert] contained all of the limitations that the ALJ found

credible and supported by substantial evidence in the record”).

AFFIRMED.