Ralph Barrett v. Andrew Saul ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 24 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RALPH E. BARRETT, No. 18-36090
Plaintiff-Appellant, D.C. No. 3:17-cv-06027-MAT
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Mary Alice Theiler, Magistrate Judge, Presiding
Submitted September 3, 2020**
Seattle, Washington
Before: McKEOWN and VANDYKE, Circuit Judges, and CALDWELL,***
District Judge.
Ralph E. Barrett appeals the district court’s order affirming the Social Security
Commissioner’s denial of disability and supplemental security income benefits. We
*
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).
***
The Honorable Karen K. Caldwell, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
have jurisdiction over this appeal under 28 U.S.C. § 1291. Because the
Administrative Law Judge’s (“ALJ”) decision was supported by substantial
evidence, we affirm.1
We review the district court’s order “de novo to ensure that the
Commissioner’s decision was supported by substantial evidence and a correct
application of the law.” Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685,
690 (9th Cir. 2009) (internal alterations and citation omitted). “This is a highly
deferential standard of review,” id., “and if evidence exists to support more than
one rational interpretation, we must defer to the Commissioner’s decision.” Batson
v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
The consensus among the majority of Barrett’s medical examiners was that
Barrett can perform tasks commonly associated with light work.2 The ALJ gave
great weight to most of the medical examiners’ opinions, discounting only the
aspects that were not consistent with the examination findings or the record. Bray
v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (concluding
that “[t]he ALJ need not accept the opinion of any physician ... if that opinion is
1
The ALJ’s decision is the final decision of the Commissioner because the Appeals Council denied
Barrett’s request for review on October 24, 2017.
2
Only Nurse Garrison found Barrett unable to meet the demands of sedentary work, which seems
to suggest that she thought Barrett was disabled.
2
brief, conclusory, and inadequately supported by clinical findings” (citing Thomas
v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002)).
1. The ALJ afforded appropriate weight to the opinions of Barrett’s examining
physicians Dr. Jennifer Irwin and Dr. Rebecca Speckman.3
a. Dr. Irwin
The ALJ accorded great weight to almost all of Dr. Irwin’s opinion, but she
accorded little weight to one aspect of the opinion where Dr. Irwin stated that Barrett
“would have difficulty dealing with the usual stress encountered in a workplace at
this time.” The ALJ explained that this aspect of Dr. Irwin’s opinion was not
supported by the treatment notes or by Dr. Irwin’s own examination findings. See
20 C.F.R. §§ 404.1527(c)(3)–(4), 416.927(c)(3)–(4); Tommasetti v. Astrue, 533 F.3d
1035, 1041 (9th Cir. 2008) (determining that an ALJ may reject an opinion upon
finding it inconsistent with the medical record). The treatment notes show that
Barrett told Dr. Irwin that he can concentrate and finish tasks at an acceptable pace,
and Dr. Irwin observed that Barrett demonstrated a cooperative attitude, logical
thought processes, normal speech, and could perform three-step tasks. The ALJ also
3
Barrett also argues that the ALJ improperly rejected the opinion of his treating nurse practitioner,
Garrison, who opined that Barrett could not even perform full-time sedentary work. The ALJ
found this aspect of the opinion lacking in both explanation and support in the medical evidence.
Nurse Garrison’s opinion contradicted statements by Barrett himself, and Drs. Speckman and Hale
and Nurse Garrison failed to explain why Barrett’s impairments prevented the performance of the
standing and walking requirements for most light jobs. The ALJ did not err in rejecting Nurse
Garrison’s conclusory, unsupported opinion. See Bray, 554 F.3d at 1228.
3
pointed out that Dr. Irwin said that Barrett could maintain regular attendance and
complete a normal work schedule. These reasons for giving less weight to one aspect
of Dr. Irwin’s opinion are specific and legitimate, Bayliss v. Barnhart, 427 F.3d
1211, 1216 (9th Cir. 2005), and thus merit our deference. Batson, 359 F.3d at 1193.
b. Dr. Speckman
While mistakenly purporting to reject a part of Dr. Speckman’s opinion, the
ALJ effectively adopted it in full. The ALJ purported to give less weight to the
limitations Dr. Speckman described with respect to Barrett’s upper left extremity,
but Dr. Speckman only opined on Barrett’s upper right extremity limitations. Thus,
the ALJ actually gave full weight to the entirety of Dr. Speckman’s opinion, and the
ALJ’s misstatement about Dr. Speckman’s opinion constituted harmless error
because it did not affect the ALJ’s decision. See Marsh v. Colvin, 792 F.3d 1170,
1172 (9th Cir. 2015).4
2. The ALJ reasonably determined that the medical evidence did not support
Barrett’s testimony about his symptoms and limitations. Barrett testified that “he
has difficulty lifting, bending, and reaching, but he noted no significant problems
sitting, standing, or walking.” Barrett’s written statement says that his right shoulder
will dislocate if he lifts more than ten pounds, but he testified that he could lift up to
4
Nor did the ALJ err by giving great weight to Dr. Hale’s opinion that Barrett can lift or carry 20
pounds occasionally and ten pounds frequently. Dr. Hale’s opinion is generally consistent with
the medical evidence and physical limitations set forth by Dr. Speckman and the record as a whole.
4
40 pounds before his right shoulder would begin to dislocate—despite his doctor’s
instructions to not lift more than 20 pounds. And although the medical evidence
shows a back disorder, Barrett reported tingling but no major problems with sitting,
standing, or walking. He also “continues to use his right arm for most tasks” despite
his doctor telling him not to do so. Additionally, he “did not testify to any significant
mental health limitations that would impact his ability to perform full time work,”
and he failed to state “a reason why he could not perform the gate guard occupation
identified by the vocational expert” (“VE”) after having an opportunity to reflect
upon his impairments and limitations.
The ALJ rationally interpreted the evidence and drew appropriate inferences.
See Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). The incongruity
between Barrett’s testimony and the medical evidence, as well as his sporadic
adherence to prescribed treatment, are clear and convincing reasons that support the
ALJ’s decision to disregard portions of his testimony. See Burch v. Barnhart, 400
F.3d 676, 681 (9th Cir. 2005).
3. Barrett makes several related claims pertaining to the ALJ’s residual
functional capacity (“RFC”) assessment and subsequent findings. First, he contends
the ALJ erred in assessing his RFC by not including all of the limitations described
by Dr. Irwin, Dr. Speckman, and Nurse Garrison, as well as the limitations Barrett
described. Second, Barrett argues that the ALJ erred in her step five finding by
5
relying on the RFC assessment. Finally, Barrett contends that the VE failed to
adequately explain how an individual who cannot use his dominant arm for lifting,
carrying, pushing, or pulling could perform the jobs of a gate guard and sales
attendant.
The ALJ appropriately weighted the medical opinions and provided clear and
convincing reasons for disregarding portions of Barrett’s testimony. See Valentine,
574 F.3d at 693. Thus, the ALJ did not err in assessing Barrett’s RFC or relying on
the RFC at step five.
At step five, the ALJ’s hypothetical “to the VE contained all of the limitations
that the ALJ found credible and supported by substantial evidence in the record.”
Bayliss, 427 F.3d at 1217. The ALJ properly relied on the VE’s testimony in
response to the hypothetical in which the VE identified light work jobs for one-
armed people, such as a gate guard or sales attendant, even though the Dictionary of
Occupational Titles does not account for the use of only the non-dominant left upper
extremity. Because the ALJ’s decision is supported by substantial evidence, we
conclude that her hypothetical was reasonable and her reliance on the VE’s
testimony informed by the VE’s professional experience was appropriate.5
5
Barrett also claims that the ALJ failed to resolve a conflict between the RFC finding and the
requirements of “reasoning level three” jobs, such as a gate guard or sales attendant. But there is
no clear conflict because Barrett was not limited to jobs involving only simple instructions. Cf.
Zavalin v. Colvin, 778 F.3d 842, 846–48 (9th Cir. 2015) (recognizing a conflict between reasoning
level three work and an RFC restriction to simple, repetitive tasks). After applying the proper
analysis and appropriately weighting the evidence, the ALJ deemed Barrett capable of always
6
AFFIRMED.
remembering and carrying out simple instructions and capable of remembering and carrying out
detailed, complex tasks occasionally. This finding is supported by substantial evidence and
consistent with the requirements for gate guards and sales attendants.
7