Mike Tsosie v. Nancy Berryhill
15-17330
| 9th Cir. | Dec 1, 2017Background
- Plaintiff Mike Tsosie applied for Social Security disability benefits; the ALJ denied benefits and the district court affirmed; Tsosie appealed to the Ninth Circuit.
- ALJ found obesity to be a severe impairment but concluded medical evidence did not show obesity (alone or combined) precluded light work; RFC assessed at light work with additional limitations.
- Consulting physicians considered Tsosie’s obesity when assessing RFC; ALJ gave more restrictive RFC than those consultants and discounted a physician’s assistant opinion as unsupported by objective findings and inconsistent with records.
- At the hearing a vocational expert (VE) testified that Tsosie’s past secretarial work was comparable to the DOT job of “membership secretary”; Tsosie’s counsel did not challenge that job match at hearing.
- ALJ concluded Tsosie could not perform his past job as actually performed (due to heavier lifting), but could perform his past relevant work as generally performed (membership secretary); the ALJ therefore found him not disabled.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ALJ adequately considered obesity in RFC | ALJ failed to explain how obesity affected RFC | ALJ explicitly found obesity severe and considered its effects; consulting opinions accounted for obesity | ALJ gave legally sufficient consideration to obesity; no reversible error |
| Whether ALJ permissibly discounted PA opinion | PA opinion supported limitations; should be credited | ALJ discounted PA opinion as unsupported by objective findings and inconsistent with treatment records | ALJ provided germane reasons to discount PA opinion; supported by substantial evidence |
| Whether VE’s use of “membership secretary” validly matches past work | Job categories used are not comparable to Tsosie’s actual past tasks | VE testimony and ALJ inquiry establish membership secretary is a suitable comparator; claimant didn’t object | Substantial evidence supports that Tsosie can perform his past relevant work as generally performed |
| Whether ALJ improperly characterized past work by using the least demanding function | ALJ relied on a job description that understates claimant’s actual demands | ALJ found Tsosie could not perform job as actually performed but could perform it as generally performed; claimant spent most time doing tasks within RFC | Reconcilable with precedent; claimant failed to meet burden to show inability to perform past work; |
Key Cases Cited
- Benton ex rel. Benton v. Barnhart, 331 F.3d 1030 (9th Cir. 2003) (standard for setting aside Commissioner’s determination)
- Molina v. Astrue, 674 F.3d 1104 (9th Cir. 2012) (substantial evidence and weighing medical opinions)
- Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d 1090 (9th Cir. 2014) (ALJ credibility and record development duties)
- Celaya v. Halter, 332 F.3d 1177 (9th Cir. 2003) (need to assess obesity’s effect on work ability)
- Burch v. Barnhart, 400 F.3d 676 (9th Cir. 2005) (claimant’s burden to show evidence ALJ ignored)
- Pinto v. Massanari, 249 F.3d 840 (9th Cir. 2001) (VE testimony must be consistent with DOT or supported by persuasive evidence)
- Stacy v. Colvin, 825 F.3d 563 (9th Cir. 2016) (generally performed test reconciling with Valencia)
- Valencia v. Heckler, 751 F.2d 1082 (9th Cir. 1985) (cannot characterize past job by least demanding function)
- Vertigan v. Halter, 260 F.3d 1044 (9th Cir. 2001) (tasks vs. jobs analysis at step four)
- Hoopai v. Astrue, 499 F.3d 1071 (9th Cir. 2007) (claimant’s burden to show inability to perform past work)
- Johnson v. Shalala, 60 F.3d 1428 (9th Cir. 1995) (requirement for persuasive evidence to deviate from DOT)
- Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050 (9th Cir. 2006) (review limited to reasons the agency invoked)