Strong v. Colvin

Filing 24

ORDER that the decision of the Commissioner is affirmed 14 ; denying req for oral arg 20 . Signed by Judge H. Russel Holland on 4/19/16. (PRR, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

MICHAEL STRONG,

)
)
Plaintiff,
)
)
vs.
)
)
CAROLYN W. COLVIN, acting Commissioner )
of the Social Security Administration,
)
)
Defendant.
)
__________________________________________)

No. 3:15-cv-0051-HRH

ORDER
This is an action for judicial review of the denial of disability benefits under Title XVI
of the Social Security Act, 42 U.S.C. §§ 1381-1383f. Plaintiff has timely filed his opening
brief,1 to which defendant has responded.2 Although plaintiff requested oral argument,3
rather than granting plaintiff’s request, the court gave the parties leave to file supplemental
briefing on the credibility issue,4 which plaintiff raised for the first time in his reply brief.

1

Docket No. 14.

2

Docket No. 15.

3

Docket No. 20.

4

Order from Chambers at 1, Docket No. 21.
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The parties have timely filed their supplemental briefs.5
Procedural Background
Plaintiff is Michael Strong. Defendant is Carolyn W. Colvin, acting Commissioner
of Social Security.
On April 18, 2012, plaintiff filed an application for disability benefits under Title XVI
of the Social Security Act. Plaintiff alleged that he became disabled on March 1, 2012.
Plaintiff alleged that he is disabled because of back, knee, and shoulder pain, carpal tunnel,
and hyperactive disorder. Plaintiff’s application was denied initially and upon reconsideration. After a hearing on July 17, 2013, an administrative law judge (ALJ) denied plaintiff’s
claims. On June 29, 2015, the Appeals Council denied plaintiff’s request for review, thereby
making the ALJ’s September 5, 2013 decision the final decision of the Commissioner. On
March 26, 2015, plaintiff commenced this action.
General Background
Plaintiff was born on January 24, 1959. He was 54 years old at the time of the
hearing. Plaintiff has a GED and attended community college for two years. Plaintiff is
single and at the time of the hearing was living with a friend. Plaintiff’s past work includes
work as a store clerk, a case aide, a semi-truck driver, and a short-order cook.

5

Docket Nos. 22 & 23.
-2-

ALJ’s Decision
The ALJ applied the five-step sequential analysis used to determine whether an
individual is disabled.6
At step one, the ALJ found that plaintiff had “not engaged in substantial gainful
activity since April 18, 2012, the application date....”7
At step two, the ALJ found that plaintiff had “the following severe impairments:
degenerative disc disease of the lumbar spine; osteoarthritis of the bilateral shoulders status

6

The five steps are as follows:
Step one: Is the claimant presently engaged in substantial
gainful activity? If so, the claimant is not disabled. If not,
proceed to step two.
Step two: Is the claimant’s alleged impairment sufficiently
severe to limit ... h[is] ability to work? If so, proceed to step
three. If not, the claimant is not disabled.
Step three: Does the claimant’s impairment, or combination of
impairments, meet or equal an impairment listed in 20 C.F.R.,
pt. 404, subpt. P, app. 1? If so, the claimant is disabled. If not,
proceed to step four.
Step four: Does the claimant possess the residual functional
capacity (“RFC”) to perform ... h[is] past relevant work? If so,
the claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant’s RFC, when considered with the
claimant’s age, education, and work experience, allow ... h[im]
to adjust to other work that exists in significant numbers in the
national economy? If so, the claimant is not disabled. If not,
the claimant is disabled.

Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006).
7

Admin. Rec. at 12.
-3-

post bilateral torn rotator cuff repair surgery; status post carpal tunnel release surgery on
the right upper extremity; osteoarthritis of the bilateral knee; attention deficient disorder;
[and] bipolar disorder....”8
At step three, the ALJ found that plaintiff did “not have an impairment or
combination of impairments that meets or medically equals the severity of one of the listed
impairments....”9 The ALJ considered Listing 1.02 (major dysfunction of a joint due to any
cause); Listing 1.04 (disorders of the spine); and Listing 12.04 (affective disorders). The ALJ
considered whether plaintiff met the paragraph B criteria and concluded that he did not
because plaintiff had mild restrictions in activities of daily living; moderate difficulties with
social functioning; moderate difficulties with regard to concentration, persistence, or pace;
and no episodes of decompensation, which had been of extended duration.10 The ALJ also
considered whether plaintiff met the paragraph C criteria and concluded that plaintiff did
not.11
“Between steps three and four, the ALJ must, as an intermediate step, assess the
claimant’s RFC.” Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1222-23 (9th Cir. 2009).

8

Admin. Rec. at 12.

9

Admin. Rec. at 12.

10

Admin. Rec. at 14.

11

Admin. Rec. at 15.
-4-

The ALJ found that plaintiff had the residual functional capacity
to perform light work as defined in 20 CFR 416.967(a) except
that claimant is further limited to: frequent stooping, kneeling,
crouching, crawling, and climbing of ladders, ropes or scaffolds; frequent bilateral overhead reaching; unlimited reaching
in all other directions; avoiding concentrated exposure to
extreme cold, excessive vibration and hazardous machinery;
one-to-two step tasks that are simple, routine and repetitive;
and work that involves only occasional interaction with the
general public and coworkers.[12]
The ALJ found plaintiff’s pain and symptom statements less than credible because
as to his physical limitations, “the medical evidence of record does not fully support the
claimant’s allegations of entirely debilitating symptoms.”13 The ALJ noted in particular that
plaintiff’s “condition improved with surgical intervention[.]”14

Similarly, as to the

limitations flowing from his mental impairments, the ALJ found that “the medical evidence
of record does not fully support the claimant’s allegations of entirely debilitating
symptoms.”15 In particular, the ALJ noted that claimant’s “condition appreciably improved
once he obtained treatment” for his mental impairments.16

12

Admin. Rec. at 15.

13

Admin. Rec. at 16.

14

Admin. Rec. at 17.

15

Admin. Rec. at 18.

16

Admin. Rec. at 18.
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The ALJ gave great weight17 to Dr. Hallenburg’s opinion18 and to Dr. Bay’s opinion.19

17

Admin. Rec. at 19.

18

On May 7, 2010, Kris Hallenburg, Ph.D., evaluated plaintiff. Dr. Hallenburg
opined that plaintiff
would be able to manage his funds and perform simple,
repetitive tasks. It is unclear whether he would be able to do
detailed or complex tasks. His temper and impulsivity have
interfered with his keeping jobs. He was able to work best
when he was able to keep his own schedule and was selfemployed. He seems to perceive slights from others easily,
and that has interfered with getting along with coworkers and
bosses. He is able to keep a regular schedule, as evidenced by
his activities of daily living now. He has put a considerable
amount of effort into avoiding people and conflicts, and
keeping his temper.
Admin. Rec. at 403.
19

On July 24, 2012, Rebecca Bay, M.D., did a mental status exam which showed that
plaintiff was
[n]eat, clean, weather and age appropriate. Attitude: Initially
guarded, then cooperative, friendly. Speech: Regular rate and
rhythm and volume. Normal prosody. Neither poverty of
content nor excessive detail. Behavior: No psychomotor
agitation or retardation noted. No abnormal movements or
gait concerns. Mood is reported okay “rated as 7-8/10 with 10
being the best.” Affect is full unrestricted and congruent.
Thought Process: Linear, logical and goal directed. Thought
content: No obvious delusions. Does not endorse SI, HI or
violent preoccupation. Perception, denies both AH and VH.
Does not appear to be responding to internal stimuli. Cognition appears to be average. He was aware that proverbs are
not concrete. Able to do serials 7s perfectly and apples and
(continued...)
-6-

The ALJ also gave great weight20 to Dr. Sanford’s opinion.21 The ALJ gave some weight22
to Dr. Taubenfeld’s opinion.23 The ALJ gave great weight24 to Dr. Perry’s opinion.25 And,

19

(...continued)
oranges are both fruits. Insight and judgment are fair to good.

Admin. Rec. at 434.
20

Admin. Rec. at 20.

21

On August 1, 2012, Dave Sanford, Ph.D., opined that plaintiff was moderately
limited in his ability to understand/remember/carry out detailed instructions; to work in
coordination with or in proximity to others without being distracted by them; to interact
appropriately with the general public; to accept instructions and respond appropriately to
criticism from supervisors; to get along with coworkers or peers without distracting them
or exhibiting behavioral extremes; and to maintain socially appropriate behavior and
adhere to basic standards of neatness and cleanliness. Admin. Rec. at 106-107.
22

Admin. Rec. at 20.

23

On November 17, 2011, Wayne Taubenfeld, Ph.D., did a learning disorder,
cognitive, and psychological assessment of plaintiff. Dr. Taubenfeld opined that an
employer would need to make the following accommodations for plaintiff:
1.
2.
3.
4.
5.

Provide a list of tasks to be completed or a “To Do” list daily[.]
Allow client to use word processor with spell check and grammar check[.]
Allow client extended training period if necessary.
Provide client with extra time to complete tasks[.]
Client might require additional breaks initially.

Admin. Rec. at 420.
24

Admin. Rec. at 19.

25

On June 1, 2010, DeWayde C. Perry, M.D. examined plaintiff. Dr. Perry opined
that plaintiff was not limited in terms of walking, standing, sitting, carrying, and lifting and
that he had no postural, environmental, or manipulative limitations. Admin. Rec. at 408.
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the ALJ gave great weight26 to Dr. Vestal’s opinion.27
The ALJ considered the third-party lay opinions28 but gave them little weight
because they “essentially mirror the claimant’s allegations in this case,” which the ALJ had
found to not be fully credible.29
At step four, the ALJ found that plaintiff “has no past relevant work....”30
At step five, the ALJ found that “there are jobs that exist in significant numbers in
the national economy that the claimant can perform[,]” including assembler, basket filler,

26

Admin. Rec. at 20.

27

On August 1, 2012, Robert E. Vestal, M.D., opined that plaintiff could occasionally
lift/carry 20 pounds; frequently lift/carry 10 pounds; stand/walk for 6 hours in an 8-hour
day; sit for 6 hours in an 8-hour day; could frequently climb ladders/ropes/scaffolds; could
frequently stoop, kneel, crouch, and crawl; could occasionally reach overhead bilaterally;
and should avoid concentrated exposure to extreme cold, vibration, and hazards. Admin.
Rec. at 104-106.
28

On March 30, 2012, Thomas Lynch, a friend of plaintiff’s, completed a third-party
function report. Admin. Rec. at 236-243. On July 10, 2012, Christy Sumner, a friend of
plaintiff’s, completed a third-party function report. Admin. Rec. at 271-278.
29

Admin. Rec. at 20.

30

Admin. Rec. at 20. The ALJ considered plaintiff’s past work but did not find that
any of it was “relevant” work. “Relevant work” is work that has been done “within the last
15 years, lasted long enough for you to learn to do it, and was substantial gainful
activity....” SSR 82-62. Plaintiff suggests in a footnote that this may have been an error, but
to the extent that it was, it would be harmless error as the ALJ proceeded to step five of the
sequential analysis. See Tommasetti v. Astrue, 533 F.3d 1035, 1042 (9th Cir. 2008)
(“Although the ALJ’s step four determination constitutes error, it is harmless error in light
of the ALJ’s alternative finding at step five”).
-8-

and cleaner.31 This finding was based on the testimony of the vocational expert.32
Thus, the ALJ concluded that plaintiff “has not been under a disability, as defined
in the Social Security Act, since April 18, 2012, the date the application was filed....”33
Standard of Review
Pursuant to 42 U.S.C. § 405(g), the court has the “power to enter, upon the pleadings
and transcript of the record, a judgment affirming, modifying, or reversing the decision of
the Commissioner....” The court “properly affirms the Commissioner’s decision denying
benefits if it is supported by substantial evidence and based on the application of correct
legal standards.” Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). “Substantial
evidence is ‘more than a mere scintilla but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Id.
(quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). “‘To determine whether
substantial evidence supports the ALJ’s decision, [the court] review[s] the administrative
record as a whole, weighing both the evidence that supports and that which detracts from
the ALJ’s conclusion.’” Id. (quoting Andrews, 53 F.3d at 1039). If the evidence is
susceptible to more than one reasonable interpretation, the court must uphold the

31

Admin. Rec. at 21-22.

32

William Weiss testified as the vocational expert. Admin. Rec. at 65-71.

33

Admin. Rec. at 22.
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Commissioner’s decision. Id. But, the Commissioner’s decision cannot be affirmed
“‘simply by isolating a specific quantum of supporting evidence.’” Holohan v. Massanari,
246 F.3d 1195, 1201 (9th Cir. 2001) (quoting Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.
1999)).
Discussion
Plaintiff first argues that the ALJ erred because she failed to consider the combined
impact of his mental and physical limitations at all stages of the five-step sequential
analysis. The ALJ found that plaintiff’s severe impairments were lumbar disc disease, post
status bilateral shoulder surgery, post status carpal tunnel, ADHD, and bipolar disorder.
Pursuant to 20 C.F.R. § 416.923, the ALJ must, if she “find[s] a medically severe combination of impairments,” consider “the combined impact of those impairments ... throughout
the disability determination process.” As explained in SSR 86-8, this means that the ALJ
[w]hen assessing the severity of multiple impairments, ... must
evaluate the combined impact of those impairments on an
individual’s ability to function, rather than assess separately
the contribution of each impairment to the restriction of
function as if each impairment existed alone. When multiple
impairments, considered in combination, would have more
than a minimal effect on the ability to perform basic work
activities, adjudication must continue throughout the sequential evaluation process.
Plaintiff argues that the ALJ failed to do this, however, because she evaluated the
paragraph B criteria of Listing 12.04 without reference to the combined effect of plaintiff’s

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physical and mental impairments. Rather, plaintiff contends that the ALJ analyzed the
paragraph B criteria as if plaintiff had no physical impairments.
In order to meet or equal Listing 12.04, the listing for affective disorders, a claimant
must satisfy the criteria of both paragraph A and paragraph B. Paragraph A requires
[m]edically documented persistence, either continuous or
intermittent, of one of the following:
1. Depressive syndrome characterized by at least four of the
following:
a. Anhedonia or pervasive loss of interest in almost all activities; or
b. Appetite disturbance with change in weight; or
c. Sleep disturbance; or
d. Psychomotor agitation or retardation; or
e. Decreased energy; or
f. Feelings of guilt or worthlessness; or
g. Difficulty concentrating or thinking; or
h. Thoughts of suicide; or
i. Hallucinations, delusions, or paranoid thinking; or
2. Manic syndrome characterized by at least three of the
following:
a. Hyperactivity; or

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b. Pressure of speech; or
c. Flight of ideas; or
d. Inflated self-esteem; or
e. Decreased need for sleep; or
f. Easy distractibility; or
g. Involvement in activities that have a high probability of
painful consequences which are not recognized; or
h. Hallucinations, delusions or paranoid thinking; or
3. Bipolar syndrome with a history of episodic periods manifested by the full symptomatic picture of both manic and
depressive syndromes (and currently characterized by either
or both syndromes).
20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.04. Paragraph B requires that the paragraph A
diagnostic findings must have resulted in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended
duration[.]
Id.
The ALJ considered whether plaintiff met the paragraph B criteria. As for restriction

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of activities of daily living, the ALJ found that plaintiff
did not allege a wealth of limitations in the area of activities of
daily living, and of the issues that the claimant did allege,
most, if not all, of those alleged limitations stem from the
claimant’s physical, and not mental, impairments.... In
addition, the medical evidence and the claimant’s reported
abilities do not indicate that the claimant has more than a mild
restriction in the area of activities of daily living due to his
mental impairments.[34]
As for difficulties in maintaining social functioning, the ALJ found that plaintiff had “no
more than moderate difficulties in the area of social functioning due to his mental
impairments.”35 And, as for difficulties in maintaining concentration, persistence or pace,
the ALJ explained that “based on th[e] combined evidence, I find that the claimant has no
more than moderate difficulties in this functional area due to his mental impairments.”36
Plaintiff acknowledges that the Listing uses the phrase “resulting in” when tying
paragraph A findings to the paragraph B criteria. Plaintiff also acknowledges that the
preface to the Listing provides that “[t]he functional limitations in paragraph[] B ... must
be the result of the mental disorder described in the diagnostic description, that is
manifested by the medical findings in paragraph A.” But, plaintiff argues that what this
means is that when the ALJ is considering whether a claimant’s condition is the equivalent

34

Admin. Rec. at 14.

35

Admin. Rec. at 14.

36

Admin. Rec. at 14.
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of the Listing, as opposed to meeting the Listing,37 the ALJ can consider the combined
effects of mental and physical impairments, and not just the claimant’s mental impairments.
Plaintiff’s argument is directly contrary to 20 C.F.R. Pt. 404, Subpt. P, App. 1, §
12.00(A), which provides that “[t]he functional limitations in paragraphs B and C must be
the result of the mental disorder described in the diagnostic description, that is manifested
by the medical findings in paragraph A.” In other words, the regulation states that the
ALJ’s consideration of the paragraph B criteria is limited to the consideration of a
claimant’s mental impairments. The regulation makes no distinction between whether the
ALJ is considering whether a listing is met or equaled, and the court cannot read such a
distinction into the regulation. Thus, it was not error for the ALJ to not consider plaintiff’s
physical impairments when she was determining whether plaintiff met the paragraph B
criteria.
Plaintiff next argues that the ALJ erred in finding his pain and symptom statements
less than credible.38 “An ALJ engages in a two-step analysis to determine whether a
claimant’s testimony regarding subjective pain or symptoms is credible.” Garrison v.

37

To meet a Listing, a claimant must establish that he meets each characteristic of the
Listing. Tacket, 180 F.3d at 1099. To equal a Listing, a claimant must show symptoms,
signs, and laboratory findings that are “at least equal in severity and duration” to the
characteristics of the Listing. Id.
38

The court declines to consider this argument waived.
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Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). “‘First, the ALJ must determine whether the
claimant has presented objective medical evidence of an underlying impairment which
could reasonably be expected to produce the pain or other symptoms alleged.’“ Id.
(quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). “In this analysis,
the claimant is not required to show ‘that h[is] impairment could reasonably be expected
to cause the severity of the symptom []he has alleged; []he need only show that it could
reasonably have caused some degree of the symptom.’” Id. (quoting Smolen v. Chater, 80
F.3d 1273, 1282 (9th Cir. 1996)). “Nor must a claimant produce ‘objective medical evidence
of the pain or fatigue itself, or the severity thereof.’” Id. (quoting Smolen, 80 F.3d at 1281).
“If the claimant satisfies the first step of this analysis, and there is no evidence of
malingering, ‘the ALJ can reject the claimant's testimony about the severity of her
symptoms only by offering specific, clear and convincing reasons for doing so.’” Id. at
1014-15 (quoting Smolen, 80 F.3d at 1281). “This is not an easy requirement to meet: ‘The
clear and convincing standard is the most demanding required in Social Security cases.’”
Id. at 1015 (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)).
“In evaluating the claimant’s testimony, the ALJ may use ‘ordinary techniques of credibility
evaluation.’” Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Turner v.
Comm’r of Social Sec., 613 F.3d 1217, 1224 n.3 (9th Cir. 2010)). “For instance, the ALJ may
consider inconsistencies either in the claimant’s testimony or between the testimony and

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the claimant’s conduct, unexplained or inadequately explained failure to seek treatment
or to follow a prescribed course of treatment, and whether the claimant engages in daily
activities inconsistent with the alleged symptoms[.]” Id. (internal citations omitted).
It was the court’s initial perception that the ALJ had given only one reason for
finding plaintiff’s pain and symptom statements less than credible, namely that plaintiff’s
statements were not supported by the objective medical evidence.39 And while this was a
clear and convincing reason, “a finding that the claimant lacks credibility cannot be
premised wholly on a lack of medical support for the severity of his pain” and symptoms.
Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). However, as defendant has
pointed out, the ALJ also found plaintiff’s pain and symptom statements less than credible
because they were not supported by the opinion evidence, plaintiff’s treatment was
conservative, and plaintiff reported medical improvement.
As for the opinion evidence, the ALJ noted, in connection with plaintiff’s claims
about his shoulder pain, that Dr. Perry opined that plaintiff had no manipulative
limitations and no limitations as to lifting or carrying objects.40 The ALJ also noted, in
connection with plaintiff’s claims of low back and knee pain, that Dr. Perry opined that

39

Order from Chambers at 1, Docket No. 21.

40

Admin. Rec. at 408.
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plaintiff had no limitations as to standing/walking and lifting/carrying objects.41 And, the
ALJ noted that Dr. Hallenburg opined that despite plaintiff’s mental impairments, plaintiff
was capable of performing simple and repetitive tasks.42 The lack of supporting opinion
evidence was a clear and convincing reason to find plaintiff’s pain and symptom
statements less than credible. See Batson v. Comm’r of the Social Sec. Admin., 359 F.3d
1190, 1196-97 (9th Cir. 2004) (considering the lack of opinions supporting Batson’s claimed
limitations when assessing credibility).
As for conservative treatment, the ALJ noted that plaintiff “testified that he only
took Ibuprofen ‘once in a while’ to treat his shoulder pain....”43 And, the ALJ noted that
based on a January 2012 MRI of plaintiff’s back which showed “only ‘mild’ degenerative
changes,” Dr. Garner, plaintiff’s primary care physician, “recommended only conservative
treatment modalities that included core strengthening exercises.”44

“[E]vidence of

‘conservative treatment’ is sufficient to discount a claimant’s testimony regarding severity
of an impairment.” Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (quoting Johnson v.
Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995)). The fact that plaintiff received conservative

41

Admin. Rec. at 17.

42

Admin. Rec. at 18.

43

Admin. Rec. at 17.

44

Admin. Rec. at 17.
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treatment was a clear and convincing reason to find his pain statements less than credible.
And as for plaintiff’s self-reports, the ALJ noted that plaintiff’s own reports showed
that his symptoms flowing from his mental impairments improved with medication and
treatment,45 which contradicted his “allegations of entirely debilitating mental health
symptoms.”46 An ALJ may discount credibility on the basis of medical improvement.
Morgan v. Comm’r of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). And,
“contradictions between claimant’s testimony and the relevant medical evidence” can be
a clear and convincing reason for the ALJ to reject a plaintiff’s subjective symptom
testimony. Johnson, 60 F.3d at 1434. Thus, plaintiff’s self-reports of medical improvement
were a clear and convincing reason to find plaintiff’s symptom statements less than
credible.
Although the ALJ primarily relied on the lack of objective medical evidence
supporting plaintiff’s statements, she gave three other clear and convincing reasons for
finding plaintiff’s pain and symptom statements less than credible. Thus, the ALJ did not
err in finding plaintiff’s pain and symptom statements less than credible.
Finally, plaintiff argues that the ALJ erred because the hypothetical the ALJ gave the
vocational expert did not adequately set out his impairments as to reaching, crawling,

45

Admin. Rec. at 432, 455, 467, 556, 574, 586 & 641.

46

Admin. Rec. at 18.
-18-

stooping, memory, and getting along with others. “The hypothetical an ALJ poses to a
vocational expert, which derives from the RFC, ‘must set out all the limitations and
restrictions of the particular claimant.’” Valentine v. Comm’r Social Sec. Admin., 574 F.3d
685, 690 (9th Cir. 2009) (quoting Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). “[A]n
RFC that fails to take into account a claimant’s limitations is defective.” Id. “It is, however,
proper for an ALJ to limit a hypothetical to those impairments that are supported by
substantial evidence in the record.” Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001).
stooping, crawling, and reaching
Plaintiff first contends that the ALJ erred in finding that he could frequently stoop,
crawl, and reach. Plaintiff argues that the medical evidence of record suggests that he is
much more limited in these areas. Plaintiff points out that during the past seven years he
has had surgery on both shoulders and carpal tunnel surgery and that he testified that he
is limited in terms of flexibility and suffers significant pain.47 Plaintiff also points out that
his most recent physical examination by Dr. Hess noted pain and crepitus when he raised
and extended both arms.48 Plaintiff also argues that the ALJ’s finding that he could
frequently stoop, crawl, and reach was at odds with his testimony about the effect his
limitations, particularly the medications that he takes, impose on his daily activities.

47

Admin. Rec. at 46-50.

48

Admin. Rec. at 653-654.
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The ALJ’s finding that plaintiff could frequently stoop, crawl, and reach was
supported by substantial evidence. The ALJ expressly considered Dr. Hess’ evaluation,
noting that
in June 2013, Phillip Hess, M.D., examined the claimant and
noted that the while the claimant did display some crepitus
with abduction and full extension of the bilateral shoulders, the
claimant nevertheless had normal range of motion and no
signs of impingement. Furthermore, Dr. Hess noted that the
claimant displayed no evidence of numbness, tingling, burning
or weakness in the bilateral upper extremities.[49]
Dr. Hess’s examination, along with Dr. Perry’s and Dr. Vestal’s opinions, constitute
substantial evidence supporting the ALJ’s finding as to plaintiff’s ability to stoop, crawl,
and reach. As for the effect his medication had on his ability to function, plaintiff testified
that his medications gave him a dry mouth and disturbed his sleep patterns.50 But this
testimony does not suggest that the side effects plaintiff was experiencing were significantly interfering with his ability to carry out his daily activities. And as for plaintiff’s
statements about his significant pain, the ALJ properly found those statements less than
credible.
memory
The ALJ found that plaintiff was limited to simple, routine, and repetitive work that

49

Admin. Rec. at 17 (internal citations omitted).

50

Admin. Rec. at 45-46.
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involved only one-to-two step tasks. Plaintiff argues that this finding did not adequately
capture his limitations due to memory.

Plaintiff argues that his 2010 consultative

examination with Dr. Hallenburg showed that he had more problems with short-term
memory than the ALJ’s hypothetical included. At that examination, plaintiff was only able
to remember one word out of four after five minutes, although he succeeded at serial 7s
and remembered his home address.51 Plaintiff also points out that at his 2011 psychological
exam by Dr. Taubenfeld, he scored “extremely ... poor ... on tests of memory” and that Dr.
Taubenfeld noted that persons such as plaintiff would “need to be supervised closely and
persistently with frequent reminders about limits, expectations, and job requirements.”52
Plaintiff also points out that he reported that he missed medical appointments because he
forgot to call in53 and that he needed multiple reminders in order to take care of personal
needs and grooming.54
The ALJ’s finding that plaintiff was limited to simple, routine, and repetitive work
that involved only one-to-two step tasks was supported by substantial evidence. The ALJ
expressly considered Dr. Hallenburg’s examination, stating that

51

Admin. Rec. at 401-402.

52

Admin. Rec. at 523.

53

Admin. Rec. at 39.

54

Admin. Rec. at 295.
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[w]hile I recognize that on examination the claimant was only
able to recall one out of four words after a five-minute delay,
the claimant was nevertheless able to spell the word “house”
both forwards and backwards, and he was also able to recall
his home address from two years prior.[55]
The ALJ also noted that “based upon her psychological examination and the objective
medical findings ascertained therefrom, Dr. Hallenburg opined that, despite his mental
impairments, the claimant was able to perform simple, repetitive tasks.56 Thus, although
Dr. Hallenburg noted that some memory problems showed up in her mental status exam
of plaintiff, she still opined that plaintiff retained the ability to perform simple and
repetitive tasks. As such, Dr. Hallenburg’s examination and opinion provide substantial
evidence in support of the ALJ’s RFC. As for Dr. Taubenfeld’s examination and opinion,
plaintiff is correct that Dr. Taubenfeld found that plaintiff had memory issues, but as the
ALJ noted, plaintiff’s “ability to concentrate, organize, remember and attend to tasks
substantially improved with medication and treatment, all of which occurred after Dr.
Taubenfeld rendered his opinions.”57 As for plaintiff’s subjective testimony about his
memory problems, as discussed above, the ALJ properly found that plaintiff’s testimony
was not entirely credible.

55

Admin. Rec. at 18.

56

Admin. Rec. at 403.

57

Admin. Rec. at 20.
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Plaintiff also argues that the ALJ should have given more attention to his job as a
“detox technical trainer.” Plaintiff worked the graveyard shift as the intake person and his
job was to enter data and complete reports. Plaintiff worked at the detox center for two
months.58 He contends that he lost this job because he failed to get his work done. Because
this was at a time when he was receiving mental health treatment, plaintiff argues that this
shows that he was not able to do simple, routine, and repetitive tasks.
The ALJ did not err in failing to give this job more attention as there is no evidence
that plaintiff actually lost this job because he failed to get his work done. Although plaintiff
testified that he was fired from this job, he did not testify that it was because he was not
getting his work done. Rather, plaintiff testified that he was told that “I wasn’t a good fit.
That there had been some issues with following protocols and not following directions.”59
anger
The ALJ found that plaintiff was limited to work that involved only occasional
interaction with the general public and coworkers.60 Plaintiff argues that the ALJ should
have found him more limited in his ability to get along with others and that the ALJ failed
to adequately consider that his anger issues make it difficult for him in the workplace.

58

Admin. Rec. at 64.

59

Admin. Rec. at 64.

60

Admin. Rec. at 15.
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Plaintiff contends that this is most clearly set out in Dr. Hallenburg’s exam. Plaintiff told
Dr. Hallenburg that “a week ago ... he became agitated at a woman in the Alcoholics
Anonymous office telling him what to do, and he had done her job before and he did not
think [that] was appropriate. He cite[d] a number of jobs he has lost because of having
impulsive anger.”61 Plaintiff also points out that Dr. Hallenburg noted that “[i]t is unclear
where the symptoms of temper fall, but it could be attributed partly to impulsivity and
possibly to some type of mood disorder that includes depression as well. He has had
lifelong learning problems that have interfered with jobs and relationships.”62 Plaintiff also
contends that his counseling records suggest that his interpersonal problems with anger
continued into 2013.63
The primary evidence of plaintiff’s anger causing an inability to get along with
others is plaintiff’s subjective statements, statements which the ALJ properly found not
entirely credible. As for plaintiff’s reliance on his counseling records, the “interpersonal
problems” to which plaintiff refers were with his partner and not with coworkers or the
general public. Moreover, plaintiff reported to his counselor that he was making progress

61

Admin. Rec. at 398.

62

Admin. Rec. at 403.

63

Admin. Rec. at 600, 601 & 605.
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in terms of managing his anger and irritability.64 The ALJ adequately took plaintiff’s anger
issues into account in her RFC.
failure to inquire
Plaintiff makes a general argument that the ALJ failed to adequately inquire about
his memory problems and anger issues. Plaintiff suggests that the ALJ failed to adequately
develop the record to determine why he had such a systematic problem in getting and
holding jobs during the past few years. Plaintiff contends that the ALJ should have asked
questions about why he had lost so many jobs over the years, particularly since he was
unrepresented at the hearing. Plaintiff insists that the ALJ simply did nothing to determine
what was keeping him from working.
“The ALJ in a social security case has an independent ‘duty to fully and fairly
develop the record and to assure that the claimant’s interests are considered.’” Tonapetyan
v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (quoting Smolen, 80 F.3d at 1288).
“Ambiguous evidence, or the ALJ’s own finding that the record is inadequate to allow for
proper evaluation of the evidence, triggers the ALJ’s duty to ‘conduct an appropriate
inquiry.’” Id. (quoting Smolen, 80 F.3d at 1288).
The ALJ did not fail to develop the record here. There was not any ambiguous
evidence nor did the ALJ make a finding that the evidence of record inadequate. Plaintiff

64

Admin. Rec. at 606.
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simply believes that the ALJ should have asked him more questions at the hearing about
why he could not keep a job, but the ALJ had no such obligation because there was
sufficient evidence in the record as to why plaintiff had lost his various jobs.65
Conclusion
Based on the foregoing, the decision of the Commissioner is affirmed. The clerk of
court shall enter judgment dismissing plaintiff’s complaint with prejudice.
DATED at Anchorage, Alaska, this 19th day of April, 2016.
/s/ H. Russel Holland
United States District Judge

65

Admin. Rec. at 60-61, 64, 292, 398 & 416.
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