Guadalupe Javalera v. ANDREW M. SAUL, Commissioner of Social Security

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GUADALUPE JAVALERA,

Plaintiff-Appellant,

v.

ANDREW M. SAUL, Commissioner of
Social Security,

Defendant-Appellee.

No. 18-35754

D.C. No. 2:17-cv-01495-BAT

MEMORANDUM
*

Appeal from the United States District Court
for the Western District of Washington
Brian Tsuchida, Magistrate Judge, Presiding

Submitted March 6, 2020
**

Before: FARRIS, TROTT, and SILVERMAN, Circuit Judges.

Guadalupe Javalera appeals the district court’s decision affirming the
Commissioner of Social Security’s denial of her application for disability
insurance benefits under Title II of the Social Security Act. This court reviews the

*
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

MAR 10 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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district court’s order sustaining the denial of benefits de novo. Brown-Hunter v.
Colvin, 806 F.3d 487, 492 (9th Cir. 2015). This court may set aside the ALJ’s
denial of benefits only if it is not supported by substantial evidence or is based on
legal error. Id.
The Administrative Law Judge (“ALJ”) properly considered the opinion of
treating physician Dr. Mark Wagner, and did not err in not specifically discussing
an August 2015 examination note. In the examination note, Dr. Wagner reviewed
four proposed jobs in connection with Javalera’s state workers compensation
claim, and disapproved the night janitor and general salesman positions without
comment, disapproved the cashier position because Javalera would “be in the same
position for prolonged periods of time,” and approved the sales attendant-light duty
position with a recommendation for vocational retraining. First, none of the jobs
that Dr. Wagner disapproved – night janitor, general salesman, and cashier – were
ever performed by Javalera. Second, Dr. Wagner’s impressions of a cashier
position does not reflect his medical opinion about the nature and severity of
Javalera’s impairments. Dr. Wagner did not assess any functional limitations, such
as how long Javalera could work in one position. In addition, there is no indication
in the record that the cashier job was similar to Javalera’s past relevant work as a
sales representative and travel agent. Turner v. Comm’r of Soc. Sec., 613 F.3d
1217, 1223 (9
th
Cir. 2010) (holding that the ALJ did not err by not providing

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reasons to reject a physician’s report when the report contained no functional
limitations). Finally, Dr. Wagner’s conclusion that Javalera did not appear capable
of performing the cashier job was a vocational conclusion that was outside his area
of expertise. McLeod v. Astrue, 640 F.3d 881, 884-85 (9th Cir. 2010) (noting that
a treating physician ordinarily does not have the expertise of a vocational expert).
The ALJ did not err in her overall consideration of Dr. Wagner’s opinion.
The ALJ considered Dr. Wagner’s treatment notes and discussed a number of his
many examination findings in the ALJ decision. Accordingly, the ALJ met her
obligation to consider all of the relevant medical opinion evidence in the record.
Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003).
Javalera’s contention that the ALJ was required to further develop the record
is without merit. There was no apparent ambiguity in the medical evidence, the
record was adequate to allow for proper evaluation of Dr. Wagner’s opinion, and
the ALJ was under no obligation to further develop the record. Mayes v.
Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001).
The ALJ provided specific, clear and convincing reasons for discounting
Javalera’s testimony. First, the ALJ reasonably discounted Javalera’s testimony of
debilitating pain as inconsistent with activities of her daily living where Javalera
was increasing her exercise after the onset of disability date and traveling
independently. Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (claimant’s

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daily activities were inconsistent with claimed disability); Tommasetti v. Astrue,
533 F.3d 1035, 1040 (9th Cir. 2008) (the ALJ properly inferred from claimant’s
ability to travel that claimant was not as limited as purported). Second, the ALJ
reasonably concluded that the medical record did not support Javalera’s claimed
limitations. The ALJ pointed to record evidence that showed mostly unremarkable
findings such as improved range of motion, normal shoulder strength, and normal
sensory and motor functioning that did not substantiate Javalera’s claims of
disabling neck and shoulder problems. Accordingly, the ALJ reasonably found
that the objective medical evidence failed to support Javalera’s allegations of
disability based on her alleged impairments. Burch v. Barnhart, 400 F.3d 676, 681
(9th Cir. 2005).
AFFIRMED.