Reynaldo Israel v. MICHAEL J. ASTRUE, Commissioner of Social Security

This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Circuit Rule 36-3.
The Honorable Paul L. Friedman, Senior District Judge for the U.S.**
District Court for the District of Columbia, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
REYNALDO ISRAEL,
Plaintiff - Appellant,
v.
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant - Appellee.
No. 11-35794
D.C. No. 3:10-cv-05507-RBL
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted August 28, 2012
Seattle, Washington
Before: SCHROEDER and GOULD, Circuit Judges, and FRIEDMAN, Senior
District Judge.**
FILED
OCT 12 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Appellant Reynaldo Israel, Jr., challenges the district court's judgment
upholding the Commissioner of Social Security's denial of his application for
social security disability benefits.
Israel suggests three theories to reverse the Administrative Law Judge’s
(ALJ) decision: 1) that the ALJ improperly rejected views of examining
psychologists while crediting views of non-examining doctors when assessing
disability; 2) that the ALJ erred because he did not adequately include his own
step-3 finding that Israel has moderate difficulties in concentration, persistence, or
pace in his residual functional capacity (RFC) finding and vocational hypothetical
at steps 4 and 5; and 3) that the ALJ committed reversible error by not individually
weighing and commenting on each limitation checked by Dr. Harrison in Section I
of her Mental Residual Function Capacity Assessment.
We address first the ALJ’s rejection of opinions of examining psychologists
Drs. John McRae, Ph.D., and Mary Mangione-Lambie, Ph.D., in favor of the views
expressed by non-examining physicians Drs. Leslie Postovoit, Ph.D., and Kristine
Harrison, Psy.D. The controlling principle is that although an examining
physician’s opinion is given more weight, those of non-examining physicians “may
serve as substantial evidence” to reject an examining physician’s opinion “when

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they are supported by other evidence in the record and are consistent with it.”
Morgan v. Comm'r of the Social Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999).
Crediting the opinions of non-examining physicians, the ALJ here gave
“‘specific, legitimate reasons for doing so that [were] based on substantial evidence
in the record.’” Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1041 (9th
Cir.1995). As one example, Dr. McRae evaluated Israel in 2005, years before the
period for which Israel requests benefits, and found Israel had significant
psychological problems but noted that these problems were likely to improve with
medication. Consistent with that expectation, “[Israel’s] symptoms improved with
psychotropic medication.” Because of this improvement, the ALJ did not assign
substantial weight to Dr. McRae’s evaluation.
As for the other examining physician, Dr. Mangione-Lambie concluded that
Israel had functional limitations in several factors and diagnosed him with multiple
disorders. But she also gave Israel a mental status examination, on which he
performed well. Dr. Postovit explained that this performance was inconsistent
with Dr. Mangione-Lambie’s assessment because it did not exhibit the “poor
performance that would be expected if [Israel] had the levels of paranoia and
agoraphobia that he alleges.” The ALJ permissibly rejected Dr. Mangione-
Lambie’s opinion because of this conflict. See Batson v. Comm'r of the Social Sec.

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Admin., 359 F. 3d 1190, 1195 (9th Cir. 2004) (upholding ALJ’s discounting of
treating physician’s views when, “contradicted by other statements and
assessments of Batson’s medical condition . . . .”).
Second, Israel claims the ALJ erred because he did not adequately include
his own step-3 finding that Israel has “moderate difficulties” in “concentration,
persistence, or pace” in his residual functional capacity (RFC) finding and
vocational hypothetical at steps 4 and 5. See 20 C.F.R. §§ 404.1520 and 416.920.
The limitations identified in step 3, however, are “not an RFC assessment but are
used to rate the severity of mental impairment(s) at steps 2 and 3 . . . .” SSR 96-8p,
1996 WL 374184, *4 (July 2, 1996). The ALJ must consider the step-3 limitations
along with “all of the relevant evidence in the case record,” id. at *5, when forming
the RFC.
Israel’s objection is similar to the one rejected in Stubbs-Danielson v.
Astrue, 539 F.3d 1169 (9th Cir. 2008). There the ALJ translated moderate
limitations in Stubbs-Danielson’s “ability to perform at a consistent pace,” id. at
1173, into the concrete restriction that Stubbs-Danielson be limited to “simple
tasks.” Id. at 1174. Stubbs-Danielson argued this was inconsistent with the earlier
limitation on pace, but the court held that “an ALJ's assessment of a claimant
adequately captures restrictions related to concentration, persistence, or pace where

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the assessment is consistent with restrictions identified in the medical testimony.”
Id. (citing Howard v. Massanari, 255 F.3d 577, 582 (8th Cir.2001); Smith v.
Halter, 307 F.3d 377, 379 (6th Cir.2001)).
Here the ALJ drew on restrictions identified in the medical testimony of Dr.
Harrison when making the RFC. Dr. Harrison “opined that the claimant could
understand, remember, and complete simple and some familiar complex tasks,” but
she “did not think [Israel] could perform complex tasks on a consistent basis.”
The ALJ, like the one in Stubbs-Danielson, adopted this concrete restriction and
adequately took into account his step-3 finding of Israel’s moderate difficulties in
concentration, persistence, or pace. Because the ALJ appeared to rely on medical
testimony of Dr. Harrison, and it was not shown that the ALJ failed to consider all
of the evidence in the record, we reject the contention that the ALJ disregarded his
step-3 findings about moderate limitations.
Third, Israel claims the ALJ erred by relying on Dr. Harrison’s narrative
assessment in her Section III, Functional Capacity Assessment, of Israel’s Mental
Residual Function Capacity Assessment (MRFCA) and not individually weighing
the limitations she identified in each checked box of her Section I, Summary
Conclusions. Again, the ALJ must consider all of the evidence, but need not
comment specifically on each element of each piece of evidence.

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According to the Program Operations Manual System (POMS), an internal1
SSA document, Section I is “merely a worksheet . . . and does not constitute the
RFC assessment.” DI 24510.060.B.2.a (Oct. 14, 2010),
http://policy.ssa.gov/poms.nsf/lnx/0424510060 (emphasis in original). Instead,
“[i]t is the narrative written by the psychiatrist or psychologist in section III . . .
that adjudicators are to use as the assessment of RFC.” POMS DI
25020.010.B.1, (Sept. 14, 2012), http://policy.ssa.gov/poms.nsf/lnx/0425020010
(emphasis in original). “The POMS does not have the force of law, but it is
persuasive authority.” Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1005
(9th Cir. 2006)).
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Israel cites authority requiring the ALJ to consider and explain the weight
given to the opinion evidence provided by Dr. Harrison. See e.g., SSR 96-8p (1)-
(2), 1996 WL 374180, *1 (July 2, 1996); SSR 96-5P, 1996 WL 374183, *6 (July 2,
1996). But he cites none that requires the ALJ to separately weigh and consider
each checked box in Section I of the MRFCA. Israel argues without support that
references to “opinions” in these Social Security Rules refer not to a doctor’s
assessment as a whole but to each identifiable element of the MRFCA, which
would require ALJs to interpret a psychologist’s checked box rather than rely on
that psychologist’s considered medical assessment.1
Based on this understanding of “opinion,” which we think is strained, Israel
next contends that if each of the boxes Dr. Harrison checked is individually
credited as “true,” then “Israel is disabled based on the [Vocational Expert’s (VE)]
testimony that given such restrictions, employment is precluded.” In this

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testimony, however, the VE responded not to Dr. Harrison’s checked boxes but to
Israel’s interpretation of those boxes, that anyone identified with those limitations
would be “truly off task where you cannot be doing the task” for ten percent of the
time. A person who is “truly off task” for ten percent of the work day might well
be unemployable, but Dr. Harrison’s opinion was that Israel could “understand,
remember, and complete simple and some familiar complex tasks through a normal
week.” Under Stubbs-Danielson, this “adequately captures” the limitations
“related to concentration, persistence, or pace” she identified in Section I. 539 F.3d
at 1174. In any event, Dr. Harrison’s views relied upon by the ALJ are substantial
evidence in support of his decision. Israel’s interpretation of Dr. Harrison’s
worksheet is not controlling.
AFFIRMED.

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