Terry Cattano v. Nancy Berryhill , 686 F. App'x 408 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERRY JOSEPH CATTANO, No. 15-55126
Plaintiff-Appellant, D.C. No.
2:14-cv-00518-DOC-RNB
v.
NANCY A. BERRYHILL, Acting MEMORANDUM *
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted March 9, 2017
Pasadena, California
Before: REINHARDT and NGUYEN, Circuit Judges, and MARBLEY,** District
Judge.
Terry Cattano appeals the district court’s decision affirming the
Commissioner of Social Security’s determination that he did not qualify for
disability insurance benefits. The Administrative Law Judge (“ALJ”) found that
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
Cattano was not presumptively disabled and that he could perform work that
existed in significant numbers in the national economy. Because Cattano cannot
demonstrate that he was disabled from December 1, 2003 to December 31, 2007
(the insured period), we affirm.
1. The ALJ properly concluded that Cattano is not presumptively disabled
because he did not have “an impairment or combination of impairments that meets
or equals a condition outlined in the ‘Listing of Impairments.’” Lewis v. Apfel, 236
F.3d 503, 512 (9th Cir. 2001); see also Sullivan v. Zebley, 493 U.S. 521, 530
(1990) (“For a claimant to show that his impairment matches a listing, it must meet
all of the specified medical criteria.”). Cattano did not meet all of the requirements
for Listing 1.04, for disorders of the spine, because he is unable to point to
evidence that he has suffered motor loss, sensory or reflex loss, or positive straight-
leg raising tests in the sitting and supine positions for twelve continuous months.
See 20 C.F.R. Part 404, Subpart P, App. 1, § 1.04A; see also 20 C.F.R.
§ 404.1525(c)(4) (“[T]he evidence must show that your impairment(s) has lasted or
can be expected to last for a continuous period of at least 12 months.”). Cattano
also did not meet all the requirements for Listing 11.03, for nonconvulsive
epilepsy, because there is no indication that the headaches he suffered during the
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insured period were severe enough to render Cattano per se disabled. See 20
C.F.R. Part 404, Subpart P, App. 1, § 11.03.
2. The ALJ properly weighed the medical evidence before concluding that
Cattano had the residual functional capacity to perform light work. The ALJ
afforded greater weight to the examining physician, Dr. Smith, and the two
reviewing physicians, Drs. Khong and Zheutlin. These three doctors all concluded
that Cattano could perform light work.
The ALJ provided specific and legitimate reasons, supported by substantial
evidence, for ascribing less weight to the opinions of the treating physicians. See
Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (“If a treating or
examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ
may only reject it by providing specific and legitimate reasons that are supported
by substantial evidence.” (citing Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir.
1995))). The ALJ properly discounted the opinion of Dr. Conner because his 2008
opinion was inconsistent with his contemporaneous treatment notes, which
indicated, for example, that Cattano had “drastically improved.” The ALJ properly
ascribed no weight to Dr. Hamilton’s opinion that Cattano was “totally disabled”
because that opinion was inconsistent with Cattano’s practices of treating his
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ailments with Aleve and visiting a doctor annually. See Rollins v. Massanari, 261
F.3d 853, 856 (9th Cir. 2001) (finding that a conservative course of treatment is not
compatible with a claim of total disability).
3. The ALJ properly discounted Cattano’s testimony to the extent that it
conflicted with the residual functional capacity because of his conservative
treatment regime and inconsistent testimony. First, the ALJ found that claims
regarding the severity of Cattano’s ailments are undermined by his post-surgery
recoveries and his use of only over-the-counter Naprosyn and Aleve for relief. See
Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (finding that treatment with
over-the-counter pain medication is sufficient to discount a claimant’s testimony
regarding severity of an impairment). Second, the ALJ explained that the
inconsistencies between Cattano’s 2009 and 2012 testimony also weighed against
his credibility. See Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012)
(“[T]he ALJ may consider inconsistencies either in the claimant’s testimony or
between the testimony and the claimant’s conduct.”). Accordingly, the ALJ
provided specific, clear, and convincing reasons to discount Cattano’s testimony to
the extent that it conflicted with the residual functional capacity.
4. The ALJ reasonably relied on the vocational expert’s testimony that
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Cattano could perform work as a packager or inspector. Although the activities of
packagers and inspectors include reaching, the vocational expert was aware that
Cattano could not reach overhead with his right arm when he testified that Cattano
could still perform those jobs. Moreover, when explicitly asked by the ALJ, the
vocational expert testified that his recommendations were consistent with the
Dictionary of Occupational Titles. Therefore, the ALJ reasonably relied on the
vocational expert’s testimony in concluding that Cattano could perform work that
existed in significant numbers in the national economy. See Massachi v. Astrue,
486 F.3d 1149, 1152 (9th Cir. 2007); Johnson v. Shalala, 60 F.3d 1428, 1435-36
(9th Cir. 1995).
AFFIRMED.
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