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Tamayo v. Colvin

United States District Court, Ninth Circuit

October 11, 2013

JOSE M. OCHOA TAMAYO, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, [1] Defendant.

MEMORANDUM OPINION AND ORDER

JAY C. GANDHI, Magistrate Judge.

Jose M. Ochoa Tamayo ("Plaintiff") challenges the Social Security Commissioner's decision denying his application for supplemental security benefits. Three issues are presented for decision, namely (1) whether the Administrative Law Judge ("ALJ") erred in his assessment of Plaintiff's residual functional capacity ("RFC"), ( see Joint Stip. at 3-4); (2) whether the ALJ improperly rejected Plaintiff's credibility, ( see id. at 4-5); and (3) whether the ALJ erred in finding that work exists in the national economy that Plaintiff can perform, ( see id. at 12-14, 17-18).

The Court addresses - and rejects - Plaintiff's contentions below.

A. The ALJ's Assessment of Plaintiff's RFC

First, Plaintiff contends that the ALJ erred in finding that he could "occasionally engage in fine [] manipulation" with his right arm. (Joint Stip. at 3; Administrative Record ("AR") at 20.) Specifically, Plaintiff argues that the ALJ accepted the opinions of the consultative examiner and State Agency consultants as to Plaintiff's total inability to perform fine manipulation with his right arm, but ignored them in his RFC finding. ( Id. ) Defendant responds that, even if the RFC contained an error, the vocational expert ("VE") identified a viable occupation that required no use of the right arm, and thus, any error was harmless. (Joint Stip. at 7.)

"A decision of the ALJ will not be reversed for errors that are harmless." Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) ( citing Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1990)); Molina v. Astrue, 674 F.3d 1104, 1117 (9th Cir. 2012) ("We have long recognized that harmless error principles apply in the Social Security Act context."). An error is harmless when it is "inconsequential to the ultimate nondisability determination." Molina, 674 F.3d at 1107. "[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination." Id. at 1111 ( quoting Shinseki v. Sanders, 556 U.S. 396, 409 (2009)).

In this case, any error committed by the ALJ was harmless because it was inconsequential to the ultimate nondisability determination. See Molina, 674 F.3d at 1115. Indeed, in his hypothetical to the VE, the ALJ included the very omission of which Plaintiff now complains. (AR at 47.) The ALJ specifically asked the VE to determine if work exists for one who "is precluded from fine manipulation with the dominant hand." ( Id. ) (emphasis added). The VE identified "conveyor line bakery worker" as a feasible option and noted "that the job could be accommodated... that the restriction of the right [] dominant hand as an assist would not preclude that work." ( Id. ) The ALJ continued, "If the individual does not have use of the right upper extremity even for assistance. So there's no assist from the upper right extremity. Would such an individual still be able to perform this job?" ( Id. at 50.) The VE replied, "I believe they could. Again, it's just, it's removing something defective off a conveyor." ( Id. ) Because the VE identified a job that requires no use of the right arm, thereby accommodating a greater restriction than that allegedly omitted, Plaintiff has not shown that the omission affected the ultimate result in his case. As such, any error was harmless and Plaintiff's first argument fails.

B. The ALJ's Rejection of Plaintiff's Credibility

Next, Plaintiff argues that, in finding that he had the RFC to perform light work, the ALJ improperly rejected his subjective complaints. (Joint Stip. at 4.) Specifically, Plaintiff complains that the ALJ failed to consider his testimony that he could only lift ten to fifteen pounds with his left hand.[2]

In evaluating the credibility of a claimant's testimony as to subjective pain or the intensity of symptoms, the ALJ engages in a two-step analysis:

(1) the ALJ must first determine whether there is objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged, and (2) if the claimant has presented such evidence, and there is no evidence of malingering, then the ALJ must give specific, clear and convincing reasons to reject the claimant's testimony about the severity of the symptoms.

Molina, 674 F.3d at 1112 (citation omitted); see Bunnell v. Sullivan, 947 F.2d 431 (9th Cir. 1991) (summarizing legislative history, including a proposed standard permitting a finding of disability based solely on subjective complaints, but which "has never been embraced by Congress, the Secretary or this Circuit."); see also 20 C.F.R. ยง 404.1529 ("statements about your pain or other symptoms will not alone establish that you are disabled; there must be medical signs and laboratory findings which show that you have a medical impairment(s) which could reasonably be expected to produce the pain or other symptoms alleged.").

Here, Plaintiff cannot satisfy step one of the analysis. There is no objective medical evidence of any impairment to Plaintiff's left arm. ( See AR.) Plaintiff never alleged any injury to his left arm, nor did he seek any such treatment. ( Id. ) In fact, there is only one mention of Plaintiff's left arm in the whole of his medial records, specifically, that he has a left-arm grip strength of ninety-five pounds.[3] ( Id. at 274.) Because Plaintiff presented no objective evidence of an impairment, the Court need not inquire whether ...


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