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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1 2 3 4 5 6 7 8 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, 11 12 13 14 15 16 17 PROCEEDINGS 18 19 On October 3, 2013, Plaintiff filed a Complaint seeking review 20 21 of the denial of her application for Social Security benefits. 22 (Docket Entry No. 3.) 23 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.) 28 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 4 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 14 Hagen. 15 denying Plaintiff’s application. 16 that Plaintiff had the following severe impairment: myofascial pain. 17 (A.R. 46.) 18 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 20 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 / / 28 / / 2 See 42 PLAINTIFF’S CONTENTIONS 1 2 3 Plaintiff alleges that the ALJ erred in: (1) discounting the 4 credibility of Plaintiff’s testimony and subjective complaints in 5 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 10 11 12 A. The ALJ Did Not Err In Evaluating Plaintiff’s Credibility 13 An ALJ’s assessment of a claimant’s credibility is entitled to 14 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 25 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.” 14 alleged symptoms, an ALJ may consider: “(1) ordinary techniques of 15 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 19 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. 23 24 Here, the ALJ examined the Administrative Record and heard 25 testimony from Plaintiff. 26 that Plaintiff had produced objective medical evidence of underlying 27 impairments that “could reasonably be expected to cause some of the 28 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 7 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 10 the left side of his neck, down the left shoulder, and through the 11 left middle back. Plaintiff alleges (A.R. 47.) 12 13 The ALJ’s reasons for rejecting the credibility of Plaintiff’s 14 subjective testimony are clear and convincing. 15 that Plaintiff’s subjective symptoms lacked support in the objective 16 record. 17 2001) (“While subjective pain testimony cannot be rejected on the 18 sole ground that it is not fully corroborated by objective medical 19 evidence, 20 determining the severity of the claimant’s pain and its disabling 21 effects.”). 22 unremarkable, showing no disc herniation and no significant central 23 canal 24 November 2008 orthopedic evaluation revealed normal heel-toe gait, a 25 supple neck, no focal neurological deficits in the upper or lower 26 27 28 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, (last accessed July 9, 2015). 5 1 extremities, and a full range of motion in the cervical and lumbar 2 spine. 3 anesthesiologist 4 examination, Plaintiff had palpable trigger points in the muscles of 5 the head and neck. 6 lumbar spine with normal strength and tone, full (5/5) strength in 7 the upper and lower extremities, normal (2+) reflexes, and a negative 8 straight leg raise test. 2 9 normal neurological findings, and upon mental status examination, 10 Plaintiff was fully oriented with intact recent and remote memory, 11 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.) 12 13 The ALJ also determined that Plaintiff’s treatment was almost 14 entirely conservative in nature. 15 750—51 16 claimant’s 17 Although Plaintiff reported taking medications such as Vicodin and 18 Soma, he also stated that applying heat, massage, and lying flat 19 helped 20 consistently prescribed medications and physical therapy, but never 21 prescribed an assistive device for ambulation. 22 271, 283, 294, 309, 318—19.) 23 prescribed an assistive device to ambulate is not dispositive on his 24 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 25 2 26 27 28 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 6 7 only conservative but effective in improving his symptoms. 8 Impairments that can be controlled effectively with medication are 9 not disabling. Warre v. Comm’r of Soc. Sec., 439 F.3d 1001, 1006 10 (9th Cir. 2006). Plaintiff frequently reported that his medications 11 helped his pain and also stated that re-starting physical therapy 12 helped. 13 Plaintiff experienced no side effects from the medications he was 14 prescribed. 15 indicated that he still had some pain despite medication, nothing 16 requires Plaintiff to be pain free in order to work. 17 Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (disability benefits are 18 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. 21 3 22 23 24 25 26 27 28 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 7 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 25 26 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 20 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 26 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 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19

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