Aguilar v. Colvin

          MEMORANDUM OPINION AND ORDER

          GAIL J. STANDISH UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION AND PROCEDURAL HISTORY

         This is Plaintiff Benigno Garcia Aguilar's second appeal from the Commissioner's denial of both Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Plaintiff first applied for DIB and SSI in 2010, alleging disability since 2008. [AR 129-43.] After an unfavorable decision, Plaintiff appealed to this Court (Case No. 2:13-cv-08307-VBK). On July 18, 2014, Magistrate Judge Victor Kenton issued a thorough opinion in which he found that the Administrative Law Judge ("ALJ") had properly assessed the examining physicians opinions, but remanded the matter for a de novo assessment of Plaintiff's credibility and a new step five determination of whether Plaintiff could perform other work given his limited English language skills. [AR 739-56.] ALJ Dale Garwal issued an unfavorable second decision on July 7, 2015. [AR 635-56.]

         Plaintiff now appeals the second decision, and raises two related issues. First, he contends that the ALJ "failed to provide any reason, let alone a specific and legitimate reason whether he accepted or rejected" the opinion of Dr. Ainbinder, an Agreed Medical Examiner ("AME"). [Dkt. 17 (Pltf.'s Mem.) at 7] (emphasis in original), and therefore, the ALJ improperly found that Plaintiff could perform work at the light exertional level. Second, he argues that the ALJ's error was not harmless, because the more limited number of jobs available if the ALJ had instead found Plaintiff capable of only sedentary work - 1, 080 in the regional economy and 11, 850 in the national economy - is insufficient. For the reasons set forth below, the Court AFFIRMS the decision of the ALJ.

         GOVERNING STANDARD

         Under 42 U.S.C. § 405(g), the Court reviews the Commissioner's decision to determine if: (1) the Commissioner's findings are supported by substantial evidence; and (2) the Commissioner used correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citation and quotations omitted); see also Hoopai, 499 F.3d at 1074.

         Even if Plaintiff shows that the ALJ committed legal error, "[Reversal on account of error is not automatic, but requires a determination of prejudice." Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012). "[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination." Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Shinseki v. Sanders, 556 U.S. 396, 409 (2009)). "ALJ errors in social security cases are harmless if they are 'inconsequential to the ultimate nondisability determination[.]"' Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (quoting Stout v. Comm 'r ofSoc. Sec. Admin., 454 F.3d 1050, 1055-56 (9th Cir. 2006)).

         DISCUSSION

         I. The ALJ Referenced Dr. Ainbinder's Opinion, Which Is Not Inconsistent With The ALJ's Determination That Plaintiff Could Perform Work At The Light Exertional Level.

         a. Plaintiffs Physical Injury

         Plaintiff sustained an on-the-job injury to his right knee on August 2, 2008, while working for The J.M. Smucker Company. He had arthroscopic surgery on his right knee on December 8, 2008. [AR 229, 234, 308-25, 402.] Plaintiff showed improvement post-surgery, with examinations by treating doctors showing normal gait and good range of motion, and pain reported as intermittent. [AR 289-90, 145-59.] Plaintiff reported some back pain in 2009, but, by January 2010, there were no further complaints or treatment records regarding Plaintiff's knee or back pain. [AR 145-59; 435-7.]

         b. The ALJ's Determination Of Plaintiff's Light Work Residual Functional Capacity (RFC)

         Plaintiff was represented by the same counsel in his prior appeal, which raised issues related to the ALJ's consideration of the medical evidence, and specifically, whether the ALJ properly assessed the examining physicians' opinions. [AR 739-56.] Notably, counsel did not raise any issues relating to the ALJ's consideration of the opinion of Dr. Ainbinder, an AME, in Plaintiffs first appeal. The magistrate judge in the prior case found that the ALJ properly considered the challenged opinions, and that any failure to consider the opinion of one physician, Dr. Nagelberg, was harmless. Id. The case was remanded for an unrelated issue. No new medical evidence was presented in the second proceeding. The same ALJ handled both proceedings, and when issuing his second unfavorable decision, adopted his prior analysis of the medical evidence in its entirety. [AR 643.] Although the wording is slightly different in each determination, Plaintiff's RFC was functionally the same in both proceedings. [Compare AR 29 with AR 636.] The ALJ determined that Plaintiff could:

[P]erform light work as defined in 20 CFR 404.1567(b) and 416.967(b), with the capacity to perform no greater than simple routine tasks, involving no more than occasional contact with the public and coworkers; lifting and carrying 10 pounds frequently, and 20 pounds occasionally; standing and sitting for 6 hours during a typical 8-hour ...