United States District Court, C.D. California
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 ...