Miguel Padilla v. ANDREW M. SAUL, Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIGUEL PADILLA,
Plaintiff-Appellant,
v.
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
No. 20-15787
D.C. No. 5:18-cv-06123-EJD
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Submitted April 16, 2021**
San Francisco, California
Before: SCHROEDER, RAWLINSON, and BADE, Circuit Judges.
Miguel Padilla appeals the district court’s order affirming the Administrative
Law Judge’s (“ALJ”) decision denying Padilla’s application for disability
insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 423. We
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
APR 21 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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have jurisdiction pursuant to 28 U.S.C. § 1291 and review de novo. Robbins v.
Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). We affirm.
1. Padilla asserts that the ALJ improperly discounted his symptom
testimony. However, the ALJ reasonably found that Padilla’s testimony regarding
his alleged limitations was inconsistent with his daily activities, his past statements
regarding his symptoms, the objective medical evidence, the conservative
treatment of prescription medications and exercises—especially considering that
he failed to comply with the treatment regimen, and his reported history of
improvement. Thus, the ALJ had clear and convincing reasons to partially
discount Padilla’s testimony. Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996,
1006 (9th Cir. 2015) (daily activities); Bray v. Comm’r of Soc. Sec. Admin., 554
F.3d 1219, 1227 (9th Cir. 2009) (past statements and objective medical evidence);
Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) (conservative treatment).
Because the ALJ’s decision is supported by substantial evidence, we must uphold
it. See Robbins, 466 F.3d at 882.
2. Padilla also argues that the ALJ erred in evaluating the medical
opinion of his treating physicians, Drs. Gee and Hoffman. The ALJ may discount
the contradicted opinion of a treating physician “by providing specific and
legitimate reasons that are supported by substantial evidence.” Revels v. Berryhill,
874 F.3d 648, 654 (9th Cir. 2017) (citations omitted). The ALJ gave Dr. Gee’s

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opinion “little weight” because it described only temporary limitations, relied on
Padilla’s self-reports which were properly discounted, and was unsupported and
contradicted by the objective medical evidence. The ALJ partially discounted Dr.
Hoffman’s opinion because it relied on Padilla’s properly discredited subjective
complaints and it was inconsistent with the objective medical evidence,
conservative treatment regimen, and Padilla’s past statements regarding the
severity of his conditions. The ALJ therefore had specific and legitimate reasons
to discount the opinions of Drs. Gee and Hoffman. Bray, 554 F.3d at 1227–28
(reliance on discounted symptom testimony); id. (objective medical evidence);
Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (conservative treatment);
Johnson, 60 F.3d at 1433 (temporary disability). Padilla urges that we adopt a
different view of the evidence, but we must uphold the ALJ’s decision because
substantial evidence supports it. Robbins, 466 F.3d at 882.
3. Padilla next asserts that the ALJ erred in partially discounting the
opinion of Dr. McCord, an examining psychologist. Dr. McCord’s opinion was
contradicted by the state agency consultants, so we review for whether the ALJ
provided specific and legitimate reasons to discount it. Revels, 874 F.3d at 654.
The ALJ reasoned that some of the limitations Dr. McCord assessed were
“overly restrictive in light of [Padilla’s] minimal mental health treatment of
record” and his “one-time evaluation of” Padilla. The ALJ also noted that Padilla

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stated “that he no longer had confusion issues” only days before seeing
Dr. McCord, while Dr. McCord reported that “[i]t was obvious that he could not
understand certain things.” Additionally, the ALJ gave significant weight to the
agency consultants’ opinions, which were inconsistent with Dr. McCord’s opinion,
and the ALJ noted an examining psychologist found that Padilla had normal
concentration, while Dr. McCord found moderate-to-severe limitation. The ALJ’s
decision encompasses specific and legitimate reasons to discount Dr. McCord’s
opinion that are supported by substantial evidence. See Bray, 554 F.3d at 1227–
28; Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999).
4. Finally, Padilla argues that the vocational expert’s testimony that he
could perform certain occupations, despite his limitations, conflicted with the
description of those occupations in the Dictionary of Occupational Titles (“DOT”).
When there is an “obvious or apparent” conflict between the vocational expert’s
testimony that a claimant can perform an occupation and the DOT’s description of
that occupation’s requirements, “the ALJ must ask the expert to reconcile the
conflict before relying on the expert to decide if the claimant is disabled.” See
Gutierrez v. Colvin, 844 F.3d 804, 807–08 (9th Cir. 2016). Naturally, this duty is
not triggered where it is unlikely that the identified occupation would require the
claimant to perform a task that exceeds his limitations. Id. at 808.
Padilla contends that the occupations that the VE identified conflict with the

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DOT given the ALJ’s finding that Padilla is limited to “only occasional changes to
the essential job functions.” It is unlikely, however, that two of the identified
occupations, office helper (DOT 239.567-010) and counter clerk (DOT 249.366-
010)—which each require a reasoning level of 2—involve more than occasional
changes to essential job functions. Level 2 reasoning requires the ability to “[d]eal
with problems involving a few concrete variables in or from standardized
situations.” U.S. Dep’t of Labor, Dictionary of Occupational Titles app. C (4th ed.
1991). But it does not speak to whether an “essential, integral, or expected” part of
being an office helper or counter clerk entails changing essential job functions
more than occasionally such that there is an apparent conflict here. See Gutierrez,
844 F.3d at 808. Nor do the DOT’s descriptions of office helper or counter clerk
indicate that it is likely that either occupation requires more than occasional
changes in essential job functions. Indeed, the DOT’s description of office helper
has a discrete list of several specific duties, suggesting that the essential duties of
an office helper remain rather invariable. Thus, there was no obvious or apparent
conflict between the VE’s testimony and the DOT.1
AFFIRMED.
1 To the extent the ALJ failed to reconcile the conflict between the limitation
to simple, routine tasks and the third identified job, furniture rental consultant,
DOT 295.357-018, which requires a reasoning level of 3, any such error was
harmless given that Padilla could perform at least one of the jobs the VE identified.
Zavalin v. Colvin, 778 F.3d 842, 848 (9th Cir. 2015).

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