Marcelino M Cordova v. Carolyn W Colvin

Filing 17

MEMORANDUM AND OPINION by Magistrate Judge Alka Sagar. (See Order for complete details) (afe)

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UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

) No. CV 13-7260-AS
)
)
Plaintiff,
) MEMORANDUM OPINION
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of the
)
Social Security Administration, )
)
Defendant.
)
)
MARCELINO M. CORDOVA,

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PROCEEDINGS

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19

On October 3, 2013, Plaintiff filed a Complaint seeking review

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21

of

the

denial

of

her

application

for

Social

Security

benefits.

22

(Docket Entry No. 3.)

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United States Magistrate Judge.

24

February 5, 2014, Defendant filed an Answer to the Complaint along

25

with the Administrative Record (“A.R.”).

26

The parties filed a Joint Stipulation (“Joint Stip.”) on April 24,

27

2014, setting forth their respective positions on Plaintiff’s claim.

The parties consented to proceed before a
(Docket Entry Nos. 7, 10.)

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1

On

(Docket Entry Nos. 13—14.)

1

(Docket

Entry

No.

15.)

The

Court

2

submission without oral argument.

has

taken

the

matter

under

See C.D. Cal. L.R. 7-15.

3

BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

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5

On

6

February

1,

2012,

Plaintiff

filed

an

for

7

Disability Insurance Benefits.

8

an inability to work since November 1, 2007 due to neck, shoulder,

9

and

rib

injury.

(A.R.

(A.R. 96, 172—73.)

application

172,

217.)

On

Plaintiff alleged

July

13,

2010,

the

10

Administrative Law Judge (“ALJ”), Zane A. Lang, examined the record

11

and heard testimony from Plaintiff and vocational expert (“VE”) Heidi

12

Paul.

13

supplemental hearing held on March 10, 2011, along with VE June

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Hagen.

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denying Plaintiff’s application.

16

that Plaintiff had the following severe impairment: myofascial pain.

17

(A.R. 46.)

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within the meaning of the Social Security Act.

(A.R.

81—95.)

(A.R. 68—80.)

Plaintiff

appeared

and

testified

at

a

On March 18, 2011, the ALJ issued a decision
(A.R. 41—55.)

The ALJ determined

However, the ALJ found that Plaintiff was not disabled
(See A.R. 52.)

19

Plaintiff requested that the Appeals Council review the ALJ’s

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21

decision.

(A.R. 40.)

The request was denied on June 29, 2012.

22

(A.R. 10.)

The ALJ’s decision then became the final decision of the

23

Commissioner, allowing this Court to review the decision.

24

U.S.C. §§ 405(g); 1383(c).

25

/ /

26

/ /

27

/ /

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/ /
2

See 42

PLAINTIFF’S CONTENTIONS

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3

Plaintiff alleges that the ALJ erred in: (1) discounting the

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credibility of Plaintiff’s testimony and subjective complaints in

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support of her disability claim; (2) determining Plaintiff’s residual

6

functional capacity; and (3) finding that Plaintiff could perform

7

other work such as cleaner, housekeeping and cafeteria attendant.

8

(Joint Stip. 3.)

9

DISCUSSION

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11
12

A.

The ALJ Did Not Err In Evaluating Plaintiff’s Credibility

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An ALJ’s assessment of a claimant’s credibility is entitled to

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15

“great weight.”

See Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th

16

Cir. 1990); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985).

17

“[T]he ALJ is not required to believe every allegation of disabling

18

pain, or else disability benefits would be available for the asking,

19

a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).”

20

Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012).

21

whether a claimant’s testimony is credible, the ALJ engages in a two-

22

step analysis.

23

2014).

Molina v.

In order to determine

Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir.

24

First, the claimant “must produce objective medical evidence of

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26

an

underlying

27

produce the pain or other symptoms alleged.’”

28

947

F.2d

impairment

341,

344

‘which

(9th

could

Cir.
3

reasonably

1991)

be

expected

to

Bunnell v. Sullivan,
(quoting

42

U.S.C.

1

§ 423(d)(5)(A)(1988)).

In

producing

evidence

of

the

underlying

2

impairment, “the claimant need not produce objective medical evidence

3

of the pain or fatigue itself, or the severity thereof.”

4

Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).

5

“need only show that [the impairment] could reasonably have caused

6

some degree of the symptom.”

Smolen v.

Instead, the claimant

Id.

7
8
9

Second, once the claimant has produced the requisite objective
medical

evidence,

the

“ALJ

may

reject

the

claimant’s

testimony

10

regarding the severity of her symptoms.”

11

Absent affirmative evidence of malingering, however, the ALJ may only

12

reject

13

convincing reasons for doing so.”

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alleged symptoms, an ALJ may consider: “(1) ordinary techniques of

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credibility

16

prior

17

testimony by the claimant that appears to be less than candid; (2)

18

unexplained or inadequately explained failure to seek treatment or to

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follow a prescribed course of treatment; and (3) the claimant’s daily

20

activities.”

21

record

22

other third parties.”

a

plaintiff’s

evaluation,

inconsistent

and

testimony

Id.

such

as

statements

“by

Smolen, 80 F.3d at 1284.

offering
Id.

clear

and

In assessing a claimant’s

claimant’s

concerning

specific,

reputation

the

symptoms,

for
and

lying,
other

An ALJ may also consider “the claimant’s work

observations

of

treating

and

examining

physicians

and

Id.

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24

Here,

the

ALJ

examined

the

Administrative

Record

and

heard

25

testimony from Plaintiff.

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that Plaintiff had produced objective medical evidence of underlying

27

impairments that “could reasonably be expected to cause some of the

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alleged

symptoms.”

(A.R.

Based on the record, the ALJ determined

14.)

However,
4

the

ALJ

found

that

1

Plaintiff’s

“statements

concerning

the

intensity,

persistence

2

limiting effects of these symptoms are not entirely credible.”

3

and

14.)

(A.R.

4
5

The

ALJ

found

that

Plaintiff

has

myofascial

pain

syndrome.

6

(A.R. 46.)

Myofascial pain syndrome is a chronic pain disorder where

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pressure on sensitive points in the muscles (trigger points) causes

8

pain in seemingly unrelated parts of the body. 1

9

that he is unable to work due to chronic and intractable pain from

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the left side of his neck, down the left shoulder, and through the

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left middle back.

Plaintiff alleges

(A.R. 47.)

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13

The ALJ’s reasons for rejecting the credibility of Plaintiff’s

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subjective testimony are clear and convincing.

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that Plaintiff’s subjective symptoms lacked support in the objective

16

record.

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2001) (“While subjective pain testimony cannot be rejected on the

18

sole ground that it is not fully corroborated by objective medical

19

evidence,

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determining the severity of the claimant’s pain and its disabling

21

effects.”).

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unremarkable, showing no disc herniation and no significant central

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canal

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November 2008 orthopedic evaluation revealed normal heel-toe gait, a

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supple neck, no focal neurological deficits in the upper or lower

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or

First, the ALJ found

See Rollins v. Massanari, 261 F.3d 853, 856, 857 (9th Cir.

the

medical

evidence

is

still

a

relevant

factor

in

MRIs of Plaintiff’s cervical spine and lumbar spine were

neural

foraminal

stenosis.

1

(A.R.

255,

303,

304.)

A

See Diseases and Conditions: Myofascial Pain Syndrome, Mayo
Clinic,
http://www.mayoclinic.org/diseases-conditions/myofascialpain-syndrome/basics/definition/con-20033195 (last accessed July 9,
2015).
5

1

extremities, and a full range of motion in the cervical and lumbar

2

spine.

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anesthesiologist

4

examination, Plaintiff had palpable trigger points in the muscles of

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the head and neck.

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lumbar spine with normal strength and tone, full (5/5) strength in

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the upper and lower extremities, normal (2+) reflexes, and a negative

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straight leg raise test. 2

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normal neurological findings, and upon mental status examination,

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Plaintiff was fully oriented with intact recent and remote memory,

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and normal mood and affect.

(A.R. 251.)

In December 2008, Plaintiff was referred to

Vimal

S.

Lala.

(A.R. 254.)

(A.R.

48,

252—56.)

Upon

Nonetheless, Plaintiff had a stable

(A.R. 254.)

Plaintiff also exhibited

(A.R. 254—55.)

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13

The ALJ also determined that Plaintiff’s treatment was almost

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entirely conservative in nature.

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750—51

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claimant’s

17

Although Plaintiff reported taking medications such as Vicodin and

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Soma, he also stated that applying heat, massage, and lying flat

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helped

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consistently prescribed medications and physical therapy, but never

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prescribed an assistive device for ambulation.

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271, 283, 294, 309, 318—19.)

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prescribed an assistive device to ambulate is not dispositive on his

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disability claim, it certainly detracts from his credibility as to

(9th

his

Cir.

2007)

credibility

pain.

See Parra v. Astrue, 481 F.3d 742,

(conservative

regarding

(A.R.

the

258.)

treatment

severity

Moreover,

can

of

an

diminish

a

impairment).

treatment

providers

(A.R. 47—50, 258,

While the fact that Plaintiff was never

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2

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A medical practitioner performs a straight leg raise test by
gently raising the patient’s leg upward while the patient is lying
down.
A negative straight leg raise test suggests a lack of nerve
root irritation in the lower back. The Merck Manual of Diagnosis and
Therapy, 17th Ed., at 1490 (1999).
6

1

debilitating back pain.

2

(9th

3

recommendations one would expect to accompany a finding that [the

4

claimant] was totally disabled under the Act.”).

Cir.

2001)

See Rollins v. Massanari, 261 F.3d 853, 856

(“These

are

not

the

sort

of

description

and

5

Furthermore, the ALJ found that Plaintiff’s treatment was not

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7

only

conservative

but

effective

in

improving

his

symptoms.

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Impairments that can be controlled effectively with medication are

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not disabling.

Warre v. Comm’r of Soc. Sec., 439 F.3d 1001, 1006

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(9th Cir. 2006).

Plaintiff frequently reported that his medications

11

helped his pain and also stated that re-starting physical therapy

12

helped.

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Plaintiff experienced no side effects from the medications he was

14

prescribed.

15

indicated that he still had some pain despite medication, nothing

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requires Plaintiff to be pain free in order to work.

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Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (disability benefits are

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intended for “people who are unable to work; awarding benefits in

19

cases of nondisabling pain would expand the class of recipients far

20

beyond that contemplated in the statute”). 3

(A.R. 223, 258, 271, 318—19.)

(A.R.

48

(citing

A.R.

Moreover, the ALJ noted that

258).)

Although

Plaintiff

See Fair v.

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3

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The ALJ also noted that no evidence in the record showed that
Plaintiff
followed
through
with
a
recommendation
to
see
a
rheumatologist. (A.R. 48, 261, 278.) See Tommasetti v. Astrue, 533
F.3d 1035, 1039 (9th Cir. 2008) (“The ALJ may consider many factors
in weighing a claimant’s credibility,” including “unexplained or
inadequately explained failure to seek treatment or to follow a
prescribed course of treatment.”).
Plaintiff claims, however, that
he had difficulty obtaining appropriate treatment because of his lack
of medical insurance. (Joint Stip. 14.) This is a valid excuse for
failing to obtain treatment.
See Smolen v. Chater, 80 F.3d 1273,
1284 (9th Cir. 1996) (claimant’s inability to pay for medication
provided a valid reason for her failure to obtain medication); Gamble
7

1

The ALJ also explained that inconsistencies between Plaintiff’s

2

statements and his conduct undermined his credibility.

3

See Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2010) (the ALJ

4

may consider inconsistencies either in the claimant’s testimony or

5

between the testimony and the claimant’s conduct).

6

pain questionnaire, Plaintiff reported getting rides to go shopping

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and needing assistance with household chores.

8

during

9

shopping when he had money, that he tried to sweep, pick up his

the

hearing,

could

13

they do not equate to a capacity to engage in substantial gainful

14

activity.

15

activities of daily living in assessing credibility not only if the

16

activities are directly applicable to work, but also when they are

17

inconsistent

18

disability.

19

in a dark room” in order to be eligible for benefits, the ALJ may

20

discredit

21

participation in everyday activities indicating capacities that are

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27

the

and

food

activities do not detract from the claimant’s credibility because

with

dishwasher,

go

12

(Joint Stip. 6.)

the

he

clothes for laundry.

(A.R. 73.)

in

that

However,

11

24

dishes

(A.R. 225.)

children’s

23

put

testified

For example, in a

10

22

clothes,

Plaintiff

(A.R. 50.)

separate

Plaintiff contends that these daily

However, an ALJ may rely on a claimant’s

claimant’s

subjective

allegations

of

See id. at 1112—13 (“While a claimant need not “vegetate

a

claimant’s

testimony

when

the

claimant

reports

v. Chater, 68 F.3d 319, 320-22 (9th Cir. 1995) (failure to obtain
treatment, even if the alleged condition is remediable, is not a
sufficient reason to deny benefits where the claimant suffers from
financial hardships). Nevertheless, any error in the ALJ’s reliance
on Plaintiff’s failure to see a rheumatologist was harmless, because
the ALJ’s remaining reasoning and ultimate credibility determination
was adequately supported by substantial evidence in the record.
Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir.
2008).

28
8

1

transferable to a work setting.

2

some difficulty functioning, they may be grounds for discrediting the

3

claimant’s testimony to the extent that they contradict claims of a

4

totally debilitating impairment.”); Valentine v. Astrue, 574 F.3d

5

685, 693 (9th Cir. 2009) (affirming ALJ’s finding that claimant’s

6

“non-work

7

impairment he alleges.”).

activities

.

.

.

Even where those activities suggest

are

inconsistent

with

the

degree

of

8

Based

9

on

the

noted

12

the

13

Plaintiff’s

14

limitations.

15

2002) (“If the ALJ’s credibility finding is supported by substantial

16

evidence in the record, we may not engage in second guessing.”)

testimony

on

convincing”

the

severity

and

medical

between Plaintiff’s statements and his conduct, the Court finds that
and

treatment,

objective

11

“clear

of

the

evidence,

provided

course

in

10

ALJ

conservative

inconsistencies

reasons
of

his

inconsistencies

for

discounting

symptoms

and

See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir.

17
18
19

B.

The

ALJ

Did

Not

Err

In

Determining

Plaintiff’s

Residual

Functional Capacity

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21

Residual functional capacity is the ability to do physical and

22

mental work activities on a sustained basis despite limitations from

23

impairments.

24

Plaintiff had the residual functional capacity to perform the full

25

range of light work as defined in 20 C.F.R. § 404.1567(b):

20

C.F.R.

§

416.920(e).

Here,

the

ALJ

found

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27
28

Light work involves lifting no more than 20 pounds at a
time with frequent lifting or carrying of objects weighing
up to 10 pounds. Even though the weight lifted may be very
9

the

little, a job is in this category when it requires a good
deal of walking or standing, or when it involves sitting
most of the time with some pushing and pulling of arm or
leg controls.
To be considered capable of performing a
full or wide range of light work, you must have the ability
to do substantially all of these activities.

1
2
3
4
5
6
7
8
9
10

20 C.F.R. 404.1567(b).

The ALJ determines RFC based upon medical

records, physicians’ opinions, and the claimant’s description of his
limitations.

20 C.F.R. §§ 404.1545(a), 416.945(a)(3).

Plaintiff

argues that the RFC is not supported by substantial evidence because
the

ALJ

improperly

rejected

the

opinion

of

Plaintiff’s

treating

physician, Dr. Chin.

11
12

“The ALJ is responsible for resolving conflicts in the medical

13

record.”

14

(9th

15

physician’s

16

record.

17

“substantial weight.”

18

1219, 1228 (9th Cir. 2009) (quoting Embrey v. Bowen, 849 F.2d 418,

19

422

20

controlling weight when it is “well-supported by medically accepted

21

clinical and laboratory diagnostic techniques and is not inconsistent

22

with the other substantial evidence in [the claimant’s] case record.”

23

20

24

physician’s opinion “is not well-supported” or “is inconsistent with

25

other substantial evidence in the record,” then it should not be

26

given controlling weight.

27

2007).

Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164

Cir.

(9th

C.F.R.

2008).
medical

A

conflicts

opinion

treating

Cir.

§

Such

and

may

other

physician’s

arise

between

evidence

opinion

is

in

a

the

usually

treating

claimant’s

entitled

to

Bray v. Comm’r, Soc. Sec. Admin., 554 F.3d

1988)).

A

404.1527(d)(2).

treating

On

physician’s

the

other

opinion

hand,

if

a

is

given

treating

Orn v. Astrue, 495 F.3d 625, 631 (9th Cir.

28
10

1
2

Substantial

evidence

that

contradicts

a

treating

physician’s

3

opinion may consist of either (1) an examining physician’s opinion or

4

(2) a nonexamining physician’s opinion combined with other evidence.

5

Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995).

6

of an examining physician, “[w]hen an examining physician relies on

7

the same clinical findings as a treating physician, but differs only

8

in his or her conclusions, the conclusions of the examining physician

9

are not substantial evidence.”

In the case

Orn, 495 F.3d at 632 (citing Murray

10

v. Heckler, 722 F.2d 499, 501–02 (9th Cir. 1984)).

11

substantial

12

“independent clinical findings that differ from the findings of the

13

treating physician.”

14

849 (9th Cir. 1985)).

15

“diagnoses that differ from those offered by another physician and

16

that are supported by substantial evidence . . . or findings based on

17

objective medical tests that the treating physician has not herself

18

considered.”

19

Cir. 1984); Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995)).

evidence,

the

examining

physician

To constitute
must

provide

Id. (citing Miller v. Heckler, 770 F.2d 845,
Independent clinical findings can be either

Id. (citing Allen v. Heckler, 749 F.2d 577, 579 (9th

20
21

“The

opinion

of

a

nonexamining

physician

cannot

by

itself

22

constitute substantial evidence that justifies the rejection of the

23

opinion of either an examining physician or a treating physician.”

24

Lester, 81 F.3d at 831.

25

if supported by “substantial record evidence.”

Such an opinion is only substantial evidence
Id.

26
27
28

If the ALJ determines that a treating physician’s opinion is
inconsistent

with

substantial

evidence
11

and

is

not

to

be

given

1

controlling weight, the opinion remains entitled to deference and

2

should be weighed according to the factors provided in 20 C.F.R.

3

§ 404.1527(d).

4

length

5

examination; (2) the nature and extent of the treatment relationship;

6

(3) the extent to which the opinion is supported by relevant medical

7

evidence; (4) the opinion’s consistency with the record as a whole;

8

and (5) whether the physician is a specialist giving an opinion

9

within

of

Orn, 495 F.3d at 631.

the

his

treatment

specialty.

These factors include: (1) the

20

relationship

C.F.R.

§

and

the

frequency

404.1527(d).

If

a

of

treating

10

physician’s opinion is not sufficiently supported by medical evidence

11

and other substantial evidence in the case, however, the ALJ need not

12

give

13

Furthermore,

14

another doctor, the ALJ may reject the treating doctor’s opinion by

15

giving specific and legitimate reasons for doing so.

16

Inconsistencies and ambiguities within the treating physicians’ own

17

opinion create such “specific and legitimate” reasons for rejecting

18

the opinion.

19

1020 (9th Cir. 1992).

the

opinion
if

controlling

the

treating

weight.

Orn,

doctor’s

opinion

495
is

F.3d

at

631.

contradicted

by

Id. at 632.

Matney on behalf of Matney v. Sullivan, 981 F.2d 1016,

20
21

Here, the ALJ determined that Dr. Chin’s opinion – with respect

22

to the standing, walking, and sitting limitations that he imposed –

23

should not be given controlling weight because it was not “well-

24

supported” by the record.

25

reasons for this finding, all of which are supported by substantial

26

evidence in the record.

27

noted that Dr. Chin stated that his assessment was based on a review

28

of medical records only, (see A.R. 338), and that there does not

(A.R. 50.)

The ALJ provided several

As a preliminary consideration, the ALJ

12

1

appear to be any actual treatment records from Dr. Chin.

2

See Magallanes v. Bowen, 881 F.2d 747, 754 (9th Cir. 1989) (ALJ may

3

reject treating physician’s retrospective opinion which is merely

4

based on a review of plaintiff’s historical records, rather than on

5

the

6

Barnhart, 331 F.3d 1030, 1038 (9th Cir. 2003) (duration of treatment

7

relationship and frequency and nature of contact relevant in weighing

8

opinion).

treating

physician’s

contemporaneous

(A.R. 49.)

evaluation);

Benton

v.

9

The ALJ cited to medical records indicating that Plaintiff’s

10
11

ankle

injury

could

12

limitations imposed by Dr. Chin.

13

from

14

resolution to the claimant’s right ankle fracture, insofar as he was

15

able

16

surgery.”

17

ankle as a diagnosis or impairment was likely, as the ALJ stated,

18

based on a “lack of symptoms requiring any treatment or limitations

19

to be imposed.”

20

agency medical consultant, Dr. Mitchell, who opined that Plaintiff’s

21

condition was nonsevere at the alleged onset date of February 2009

22

and indicative of a light RFC one year later. 4

Plaintiff’s

to

return

not

have

surgeon,

to

(A.R. 50.)

Dr.

ambulation

caused

the

standing

and

walking

For example, the treatment records
Ahluwalia,

showed

approximately

3

a

“satisfactory

months

following

Dr. Chin’s failure to list a fractured right

(A.R. 50.)

This finding is supported by the state

(A.R. 293.)

See

23
24
25
26
27
28

4

The ALJ also points to Dr. Mitchell’s notation that at the
time Plaintiff injured his ankle, he was “physically able to jump
over another person as he was walking down a stair well.”
(A.R.
293.)
Plaintiff takes issue with this statement, stating that it
“make[s] it appear as though Plaintiff does this for sport.” (A.R.
22.)
However, Dr. Mitchell acknowledges that Plaintiff had to
undergo surgery for the ankle injury, which led him to conclude that
Plaintiff would require a light RFC one year later.
This is
13

1

Thomas

v.

Barnhart,

2

opinions of non-treating or non-examining physicians may also serve

3

as

4

independent clinical findings or other evidence in the record”).

substantial

278

F.3d

evidence

when

947,

the

957

(9th

opinions

Cir.

are

2002)

(“[t]he

consistent

with

5
6

The ALJ additionally found that Dr. Chin’s opinion regarding

7

Plaintiff’s walking and sitting limitations was inconsistent with

8

Plaintiff’s

9

reported that Plaintiff was only able to walk one block, Plaintiff

10

testified at both the July 2010 hearing and March 2011 hearing that

11

he

12

according to the records submitted by Plaintiff’s ankle surgeon, Dr.

13

Ahluhwalia, Plaintiff reported being able to walk and use a walker

14

boot for “long walks” after his surgery.

15

Plaintiff disagrees that these are true inconsistencies, the ALJ’s

16

interpretation

17

Tommasetti v. Astrue, 533 F.3d 1035, 1041—42 (9th Cir. 2008) (“the

18

ALJ is the final arbiter with respect to resolving ambiguities in the

19

medical evidence.”).

20

of Plaintiff’s standing and walking limitations to be inconsistent

21

with his treatment recommendations.

22

assistive device for walking and only recommended ice packs, physical

23

therapy,

24

These are not the “recommendations one would expect to accompany a

25

finding

26

Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001); Johnson v.

could

conduct

walk

and

that

up

and

to

of

testimony.

2

the

blocks.

record

For

(See

is

example,

A.R.

72,

while

90.)

to

Chin

Moreover,

(A.R. 309.)

entitled

Dr.

Although

deference.

See

Moreover, the ALJ found Dr. Chin’s assessment

prescription

[Plaintiff]

Dr. Chin did not prescribe an

medications

was

totally

as

treatment.

disabled

under

(A.R.

the

342.)

Act.”

27
28

consistent with the ALJ’s RFC finding that Plaintiff could perform
the full range of light work. (A.R. 47.)
14

1

Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995) (ALJ may properly rely on

2

the fact that only conservative treatment has been prescribed).

3
4

With respect to Plaintiff’s complaints of “total body pain,” the

5

ALJ stated that these complaints were also inconsistent with the

6

objective medical record.

7

hearing that he was “able to lift 5 pounds on the left side but after

8

doing this three times, he loses his ability to grasp.”

9

Chin stated that Plaintiff had reduced left-hand grip strength, his

(A.R. 50.)

(A.R. 337.)

Plaintiff testified at the

Although Dr.

10

strength was graded at 4/5.

Moreover, Dr. Chin opined

11

that Plaintiff could lift and carry up to 10 pounds frequently, and

12

up to 20 pounds occasionally in a competitive work situation.

13

337.)

(A.R.

This is entirely consistent with the ALJ’s RFC assessment. 5

14

Accordingly,

15
16

the

ALJ’s

RFC

/ /

19

supports

/ /

18

evidence

finding.

17

substantial

/ /

20
21
22
23
24
25
26
27
28

5

Plaintiff contends that the ALJ did not specifically address
Dr. Chin’s assessment that Plaintiff was limited in his ability to
twist and stoop occasionally, rarely crouch and climb ladders or
stairs, and that his experience of pain was severe enough to
frequently interfere with his ability to pay attention and
concentrate.
(A.R. 340—41.)
However, the ALJ is not required to
discuss every piece of evidence in the record. See Hiler v. Astrue,
687 F.3d 1208, 1212 (9th Cir. 2012) (“the ALJ is not required to
discuss evidence that is neither significant nor probative”).
Because substantial evidence supports the ALJ’s finding that Dr.
Chin’s opinion should not be given controlling weight, the ALJ need
not address each of the limitations provided by that doctor. (A.R.
50.)
15

1

C.

The ALJ Properly Determined Plaintiff Can Perform Other Work

2
3

Once the ALJ determines a claimant’s RFC and finds that he

4

cannot return to his past relevant work, “the burden of proof shifts

5

to the Secretary to show that the claimant can do other kinds of

6

work.”

7

point, ALJs “can call upon a vocational expert to testify as to: (1)

8

what jobs the claimant, given his or her [RFC], would be able to do;

9

and (2) the availability of such jobs in the national economy.”

10

Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999) (citing 20

11

C.F.R. § 404.1526).

12

any

13

§ 404.1520(a)(4)(v).

Embrey v. Bowden, 849 F.2d 418, 422 (9th Cir. 1988).

available

At this

If the claimant does not have the RFC to work in

jobs,

he

is

considered

disabled.

20

C.F.R.

14

Plaintiff contends that the ALJ’s reliance on the VE’s testimony

15
16

was

misplaced

because

the

hypothetical

question

posed

to

the

VE

17

failed to include all of Plaintiff’s limitations, specifically the

18

limitations set forth by Dr. Chin.

(Joint Stip. 25.)

19
20

A hypothetical question posed to a vocational expert must set

21

out all the limitations and restrictions of the claimant.

Embrey v.

22

Bowen, 849 F.2d 418, 422 (9th Cir. 1988) (emphasis in original).

23

hypothetical question must be accurate, detailed, and supported by

24

the medical record.

25

F.2d 1275, 1279–80 (9th Cir. 1987).

26

to include limitations in the hypothetical that are not supported by

27

substantial evidence.

28

(9th Cir. 2001).

The

Gamer v. Secretary of Health & Human Servs., 815
However, the ALJ is not required

See Osenbrock v. Apfel, 240 F.3d 1157, 1164–65

16

The ALJ posed multiple hypothetical questions to VE Heidi Paul.

1
2

(A.R.

77—80.)

3

limitations: lift 20 pounds occasionally and 10 pounds frequently,

4

and sit, stand, or walk six hours out of an eight hour day.

(A.R.

5

78.)

these

6

limitations

7

economy,

8

attendant.

The

VE

The

first

testified

could

that

perform

including

that

hypothetical

a

hypothetical

various

of

a

included

jobs

the

person

available

in

cleaner/housekeeper

following

with
the

and

a

national
cafeteria

(A.R. 78.)

9

Plaintiff contends that the ALJ failed to include a hypothetical

10
11

with

Dr.

Chin’s

12

occasionally

13

stairs.

14

this limitation is inconsistent with the work required of a cleaner,

15

a position that requires occasional crouching.

16

However, other than Dr. Chin’s opinion, which was rejected by the ALJ

17

for the reasons stated above, Plaintiff cites to no evidence in the

18

record

19

Plaintiff’s initial hearing also identified other light, unskilled

20

jobs

21

worker, and mail clerk, all of which would accommodate Dr. Chin’s

22

assessed

23

Plaintiff can perform light work, he can also perform sedentary work,

24

which considerably expands the number of jobs available.

25

v. Barnhart, 454 F.3d 1063, 1070 (9th Cir. 2006) (“The full range of

26

light work includes unskilled, sedentary jobs.”); see also 20 C.F.R.

27

§ 404.1567(b) (“If someone can do light work, we determine that he or

28

she can also do sedentary work, unless there are additional limiting

bend

postural
and

limitations,

twist,

rarely

including

crouch,

(Joint Stip. 25 (citing A.R. 341).)

for

that

this

postural

Plaintiff

postural

could

limitation.

perform

limitations.

such

(A.R.

17

The

as

92.)

or

the

ability

to

climb

ladders

or

Plaintiff states that

(Joint Stip. 26.)

vocational

cashier,

expert

at

electronics

Moreover,

because

See Widmark

1

factors such as loss of fine dexterity or inability to sit for long

2

periods of time.”)

3

Plaintiff

4

also

notes

that

when

the

Vocational

Expert

was

5

presented with a hypothetical that included Dr. Chin’s limitations,

6

including the inability to concentrate due to pain, he concluded that

7

there would be no jobs available in the national economy for that

8

hypothetical individual.

9

the ALJ’s assessment of Plaintiff’s RFC did not include Dr. Chin’s

10

limitations, and this finding was supported by substantial evidence

11

in the record.

(A.R. 79—80.)

However, as set forth above,

12

Accordingly, the Court finds that the ALJ properly relied on the

13
14

VE’s

testimony

15

considered all of the claimant’s limitations that were supported by

16

the record.

17

2002) (considering VE testimony reliable if the hypothetical posed

18

includes all of claimant’s functional limitations, both physical and

19

mental supported by the record); Bayliss v. Barnhart, 427 F.3d 1211,

20

1218

21

necessary foundation for his or her testimony”).

22

/ /

23

/ /

24

/ /

25

/ /

26

/ /

27

/ /

28

/ /

(9th

because

the

hypotheticals

presented

to

the

VE

See Thomas v. Barnhart, 278 F.3d 947, 956 (9th Cir.

Cir.

2005)

(“A

VE’s

recognized

18

expertise

provides

the

ORDER

1
2
3
4

For the foregoing reasons, the decision of the Commissioner is
affirmed.

5
6

LET JUDGMENT BE ENTERED ACCORDINGLY.

7
8

Dated: July 20, 2015.

9
10
11

_/s/__________________________
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

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