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Gary Latsha v. Michael J. Astrue

August 9, 2011

GARY LATSHA,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,
DEFENDANT.



The opinion of the court was delivered by: Patrick J. Walsh United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Before the Court is Plaintiff's appeal from a decision by Defendant Social Security Administration ("the Agency"), denying his application for Disability Insurance benefits ("DIB"). Plaintiff claims that the Administrative Law Judge ("ALJ") erred in failing to properly consider two doctors' opinions. For the reasons explained below, the Court concludes that the ALJ did not err and, therefore, affirms the Agency's decision.

II. SUMMARY OF PROCEEDINGS

On February 27, 2006, Plaintiff filed for DIB benefits, alleging an onset date of November 1, 2000. (Administrative Record ("AR") 108-112.) The Agency denied the application initially and on reconsidera- tion. (AR 51, 55, 61-64, 67-71.) Plaintiff then requested and was granted a hearing before an ALJ. (AR 73-75.) On November 21, 2007, Plaintiff appeared with counsel and testified at the hearing. (AR 19-48.) On January 11, 2008, the ALJ issued a decision finding that Plaintiff was not disabled. (AR 5-16.) Plaintiff appealed to the Appeals Council, which denied review. (AR 1-4.) He then filed the instant action.

III. DISCUSSION

1. The Examining Psychologist's Opinion In his first claim of error, Plaintiff contends that the ALJ did not properly consider the opinion of examining psychologist Mark Pierce. (Joint Stip. at 3-4.) For the following reasons, the Court finds that there is no merit to this claim.

ALJs are tasked with resolving conflicts in the medical evidence. Morgan v. Comm'r of Soc. Sec., 169 F.3d 595, 601 (9th Cir. 1999) (internal quotation marks omitted); Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992). In doing so, an ALJ must provide specific and legitimate reasons that are based on substantial evidence in the record for rejecting an examining doctor's opinion where, as here, it is contradicted by another doctor's opinion. Carmickle v. Comm'r of Soc. Sec., 533 F.3d 1155, 1164 (9th Cir. 2008) (quoting Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996)).

Psychologist Mark Pierce examined Plaintiff on August 22, 2005, and administered several intelligence tests in an effort to evaluate Plaintiff's capabilities. (AR 232-236.) He concluded that Plaintiff had mild depression but estimated Plaintiff's intellectual functioning to be average and found no evidence of confusion. (AR 234-36.) According to Dr. Pierce:

[Plaintiff's] cognitive abilities appear to be fairly well retained as he performs in consistently adequate-to-strong fashion with administered testing. [¶] By today's performance, [Plaintiff] retains the mental capacity to complete medium to higher-demand vocational skills and to adapt to minimal changes in the work environment. Reasoning capacities are consistently adequate to this level of vocational functioning. [¶] Plaintiff would have no significant difficulty working effectively with others, per his adequate cooperation and performance with this examiner, while there is milder depression underlying. He can remember and comply with simple one and two part instructions. He could concentrate adequately for a regular work schedule for a full workweek. (AR 236.)

In light of this report and the other medical evidence, the ALJ determined that Plaintiff had the capacity to perform his prior job as an auto service manager. (AR 16.) Plaintiff claims that the ALJ erred in reaching this determination. He points out that Dr. Pierce concluded that Plaintiff could adapt to only minimal changes in the workplace and argues that the job of service manager entails more than minimal changes due to the constant hiring and firing of personnel and the necessity of dealing with customers. (Joint Stip. at 4.) Plaintiff does not cite any authority to support this proposition.

And the Court has not found any, either. Further, the evidence in the record, though minimal, seems to contradict Plaintiff's claims, here.

Throughout the application process, Plaintiff submitted reports to the Agency, detailing, among other things, his prior employment as a service manager. Nothing in those submissions suggested that the job of service manager involved the "constant" hiring and firing of employees or that Plaintiff experienced difficulties with customers. (AR 121, 154-55, 206.) In fact, Plaintiff reported to Dr. Pierce that he got along well with bosses and co-workers when he was working. (AR 233.) This is important because Plaintiff's alleged impairment stems from a 1992 accident and complications, including seizure disorder, that followed. (AR 232-33.) Yet, Plaintiff worked as a service manager for eight years after the accident with no apparent problems. (AR 206, 233.)

Further, Plaintiff briefly testified about his experience as a service manager and nothing in his testimony suggests that the job required more than minimal changes in the work environment. (AR 25-27.) Nor does the Dictionary of Occupational Titles ("DOT") include any special adaptation requirements. (See DOT No. 185.167-058.) Thus, the Court is hard pressed to find that the ALJ erred when ...


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