                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 12 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



REYNALDO ISRAEL,                                 No. 11-35794

              Plaintiff - Appellant,             D.C. No. 3:10-cv-05507-RBL

  v.
                                                 MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
Social Security,

              Defendant - Appellee.



                   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.**




        *
             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.
      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




                                           2
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.


                                          3
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


                                           4
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.


                                          5
      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



      1
          According to the Program Operations Manual System (POMS), an internal
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)).

                                           6
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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