Tuni Hernandez v. Nancy Berryhill , 707 F. App'x 456 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 6 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TUNI DEE HERNANDEZ, No. 15-17028
Plaintiff-Appellant, D.C. No. 2:14-cv-02142-CKD
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Carolyn K. Delaney, Magistrate Judge, Presiding
Argued and Submitted July 11, 2017
San Francisco, California
Before: BEA and N.R. SMITH, Circuit Judges, and LYNN,** Chief District Judge.
Tuni Dee Hernandez appeals the district court’s order affirming an
administrative law judge’s (“ALJ”) denial of her applications for disability insurance
benefits and supplemental security income under Titles II and XVI of the Social
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Barbara M. G. Lynn, Chief United States District
Judge for the Northern District of Texas, sitting by designation.
Security Act, 42 U.S.C. §§ 401–34, 1382–1385. We affirm.
1. The ALJ did not err by rejecting the opinions of Hernandez’s treating
physicians, Doctors Kathleen King and Dennis Hart. The ALJ’s determination that
Doctor Hart’s own treatment notes did not support the level of severity endorsed in
his opinion was a “specific and legitimate reason[] supported by substantial
evidence” for rejecting his opinion. Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d
685, 692–93 (9th Cir. 2009). Moreover, although the ALJ mistakenly referred to the
treatment notes of Hernandez’s orthopedic surgeon and physical therapist as
belonging to Doctor King, Dr. King’s notes nonetheless did not support the level of
severity she endorsed. Thus, the ALJ properly rejected Doctor King’s opinion, and
his error in misidentifying her treatment notes was harmless. See Molina v. Astrue,
674 F.3d 1104, 1111 (9th Cir. 2012) (“[W]e may not reverse an ALJ’s decision on
account of an error that is harmless.”).
2. The ALJ also did not err by rejecting Hernandez’s testimony regarding
the severity of her symptoms.1 The inconsistencies between Hernandez’s testimony
and the objective medical evidence, including her doctors’ treatment notes and an
MRI of her lumbar spine, were “clear and convincing reasons” for rejecting
Hernandez’s testimony. Morgan v. Comm’r Soc. Sec. Admin., 169 F.3d 595, 599–
1
Hernandez testified that she could neither sit nor stand for more than fifteen
minutes at a time because of pain in her back and right ankle.
2
600 (9th Cir. 1999). So were the inconsistences between her testimony and her self-
reported daily activities, which included doing her laundry, cleaning the kitchen,
driving short distances, and sitting on the couch and watching her three-year-old
nephew play games.
3. Finally, the district court correctly concluded that any error committed
by the ALJ at step five of the disability analysis was harmless. See Molina, 674 F.3d
at 1111. There was no apparent conflict between the ALJ’s residual functional
capacity (“RFC”) determination that Hernandez was “limited to simple, repetitive
tasks” and the vocational expert’s testimony that she could work as an envelope
addresser, a job which the U.S. Department of Labor’s Dictionary of Occupational
Titles describes as requiring “Level 2” reasoning.2 See Abrew v. Astrue, 303 Fed.
App’x 567, 569 (9th Cir. 2008) (unpublished) (“[T]here was no conflict between the
ALJ’s step five determination that [the claimant] could complete only simple tasks
and the vocational expert’s testimony that [the claimant] could do
jobs . . . categorize[d] at ‘Reasoning Level 2.’”); see also Moore v. Astrue, 623 F.3d
599, 604 (8th Cir. 2010) (finding no apparent conflict between an ALJ’s RFC
determination that a claimant could “perform[] ‘simple, routine and repetitive work
2
Level 2 reasoning requires, inter alia, the ability to “[a]pply commonsense
understanding to carry out detailed but uninvolved written or oral instructions.” See
U.S. Department of Labor, Dictionary of Occupational Titles app. C, 1991 WL
688702 (4th ed. 1991) (hereinafter “DOT”).
3
activity . . . ’” and a vocational expert’s testimony that the claimant could perform
jobs that require Level 2 reasoning).3 Thus, even if the ALJ erred by failing to resolve
an apparent conflict between Hernandez’s RFC and the vocational expert’s
testimony that Hernandez could perform two other jobs that require Level 3
reasoning,4 see Zavalin v. Colvin, 778 F.3d 842, 847 (9th Cir. 2015) (finding an
apparent conflict between an ALJ’s RFC determination that a claimant was limited
to “simple, repetitive tasks” and a vocational expert’s testimony that the claimant
could perform jobs that required Level 3 reasoning), any such error was harmless.
AFFIRMED.
3
Nor did the opinion of Doctor T. Renfro, a government psychologist, that
Hernandez was “able to understand, remember, and carry out simple one or two-step
job instructions,” raise an apparent conflict with the vocational expert’s testimony.
True, this Court has found an “apparent conflict” between an ALJ’s finding that a
claimant is “limit[ed] . . . to performing one- and two-step tasks” and a vocational
expert’s testimony that the claimant can meet “the demands of Level Two
reasoning[.]” Rounds v. Comm’r. Soc. Sec. Admin., 807 F.3d 996, 1003 (9th Cir.
2015) (“The conflict between [the claimant’s] RFC and Level Two reasoning is
brought into relief by the close similarity between [the claimant’s] RFC and Level
One reasoning[,] [which] . . . requires a person to apply ‘commonsense
understanding to carry out simple one- or two-step instructions.’”). Here, however,
the ALJ never adopted Doctor Renfro’s opinion that Hernandez was limited to
“simple one or two-step job instructions.” Thus, Rounds is inapposite.
4
Level 3 reasoning requires, inter alia, the ability to “[a]pply commonsense
understanding to carry out instructions furnished in written, oral or diagrammatic
form.” See DOT app. C, 1991 WL 688702.
4