Patricia Thomas v. Andrew Saul ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 16 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICIA ANN THOMAS, No. 18-35866
Plaintiff-Appellant, D.C. No. 1:17-cv-00912-MC
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge, Presiding
Submitted November 7, 2019**
Portland, Oregon
Before: GILMAN,*** PAEZ, and RAWLINSON, Circuit Judges.
Patricia Ann Thomas appeals the district court’s judgment, which affirmed
the administrative law judge’s (ALJ’s) determination that Thomas is no longer
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
disabled. We review de novo the district court’s judgment and will reverse only if
the ALJ’s decision was not supported by substantial evidence or if the ALJ applied
the wrong legal standard. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012).
1. The ALJ’s decision to discount certain aspects of Thomas’s testimony
about the severity of her symptoms was based on “specific, clear and convincing
reasons.” See Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). Most
notably, the ALJ determined that the objective medical evidence in Thomas’s case
is inconsistent with her testimony. This analysis was based on a comprehensive
neurological examination of Thomas conducted in February 2013, along with other
assessments completed during her treatment. “Contradiction with the medical
record is a sufficient basis for rejecting the claimant’s subjective testimony.”
Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008).
This reason alone is thus sufficient to support the ALJ’s adverse credibility finding
in this case. See id. at 1162–63.
2. The ALJ did not err in evaluating the lay-witness statements of Thomas’s
father, Albert Thomas. Contrary to Thomas’s suggestion, the ALJ did not
disregard or discount these statements. Rather, the ALJ took account of Albert’s
description of Thomas’s daily activities, as well as his testimony regarding her
difficulties in various aspects of life. Because Albert’s statements “regarding the
claimant’s activities of daily living suggest [that] she is capable of at least simple
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tasks,” the ALJ reasoned that those statements did not support a finding of
disability. The ALJ did, however, find the statements “somewhat persuasive in
terms of identifying areas in which the claimant experiences limitations.” If the
ALJ’s findings are supported by inferences reasonably drawn from the record, they
will be upheld. Batson v. Comm’r of the Soc. Sec. Admin., 359 F.3d 1190, 1193
(9th Cir. 2004). The ALJ appropriately considered Albert’s statements, and her
analysis of those statements was supported by inferences reasonably drawn from
the record.
3. In 2013, psychologist Joshua Boyd stated, as part of his evaluation of
Thomas, that Thomas would “need an understanding supervisor.” The ALJ
concluded that the need for “an understanding supervisor” was not a proper
limitation that could reasonably be addressed by a vocational expert (VE), and thus
excluded it from the hypothetical posed to the VE. Thomas’s contention that the
ALJ erred in doing so is without merit. The district court’s determination that this
limitation “is simply too vague and unquantifiable to incorporate into the
claimant’s RFC [residual functional capacity] or into a VE hypothetical” is
persuasive. As that court noted, other district-court judges in this circuit have
come to a similar conclusion.
Thomas, however, cites Embrey v. Bowen, 849 F.2d 418 (9th Cir. 1988), in
which this court wrote that hypothetical questions posed to a VE “must set out all
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the limitations and restrictions of the particular claimant.” Id. at 422 (emphasis in
original). But the limitations in Embrey were specific characteristics of the
plaintiff, such as his “need to rest periodically, his back and chest pains, and the
dizziness and blurred vision caused by his diabetes.” Id. at 423.
The need for “an understanding supervisor” does not represent the same type
of restriction. How an ALJ or a VE could interpret that phrase to give it more
concrete content is quite unclear. We fail to see, for example, how a VE could
evaluate how many jobs of a particular type with an understanding supervisor exist
in the relevant economy. Nor does Thomas offer any meaningful support for her
alternative theory that the need for an understanding supervisor should be
interpreted as a reasonable accommodation.
4. There is no apparent conflict between psychologist Boyd’s assessment
that Thomas could not handle “detailed instructions” and the fact that the jobs
identified by the VE require General Educational Development Reasoning Level
Two. At this level, individuals must “[a]pply commonsense understanding to carry
out detailed but uninvolved written or oral instructions.” Dictionary of
Occupational Titles (DOT), App. C, 1991 WL 688702 (4th ed. 1991).
As the district court noted, the Social Security Administration uses a
different scheme to assess individuals’ abilities than does the DOT. The ALJ was
not obligated to conclude that Boyd intended to use the word “detailed” in exactly
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the same sense in which the DOT employs it. Boyd’s other observations reinforce
this analysis. For example, he commented that Thomas was capable of performing
“simple, routine type work.” Boyd also noted that Thomas’s ability to deal with
“detailed instructions” was only “moderately,” rather than “markedly,” limited.
Read as a whole, Boyd’s report does not conflict with the conclusion that Thomas
is capable of Level Two reasoning.
The two primary cases that Thomas relies on to show otherwise are
distinguishable. First, in Zavalin v. Colvin, 778 F.3d 842 (9th Cir. 2015), this court
held that there was an apparent conflict between an RFC to perform “simple,
repetitive tasks” and the demands of Level Three reasoning. Id. at 847. The jobs
at issue in the present case, in contrast, require only Level Two reasoning abilities.
Second, in Rounds v. Commissioner Social Security Administration, 807 F.3d 996
(9th Cir. 2015), this court held that there was an apparent conflict between the
claimant’s RFC limiting her to “one- and two-step tasks” and the requirements of
Level Two reasoning. Id. at 1003. But nothing in the record suggests that Thomas
is limited to one- or two-step tasks. Indeed, the Rounds court explicitly
distinguished that case from other decisions where courts have concluded that “an
RFC limitation to ‘simple’ or ‘repetitive’ tasks is consistent with Level Two
reasoning.” Id. at 1004 n.6 (collecting cases).
For all of the above reasons, we AFFIRM.
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