Leticia Jimenez v. Carolyn W. Colvin

Filing 18

MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner. (See document for further details). (mr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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LETICIA JIMENEZ,
Plaintiff,

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No. CV 13-8676 SS

v.

MEMORANDUM DECISION AND ORDER

CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.

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I.

22

INTRODUCTION

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24

Leticia
of

Jimenez
the

(“Plaintiff”)

seeks

Commissioner

of

review

the

of

Social

the

final

25

decision

Security

26

Administration (the “Commissioner” or the “Agency”) denying her

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Disability Insurance Benefits and Supplemental Security Income.

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The parties consented, pursuant to 28 U.S.C. § 636(c), to the

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jurisdiction of the undersigned United States Magistrate Judge.

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For the reasons stated below, the decision of the Commissioner is

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AFFIRMED.

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5

II.

6

PROCEDURAL HISTORY

7
8
9

Plaintiff

filed

applications

for

Title

II

Disability

Insurance Benefits (“DIB”) and Title XVI Supplemental Security

10

Income (“SSI”) on July 27, 2010.

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233-36, 237-41).

12

September

13

Plaintiff’s applications on March 8, 2011.

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On

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Administrative

16

testified at the first of two hearings before ALJ Christine Long

17

on

18

language interpreter translated for Plaintiff.

March

May

20,

24,

3,

Plaintiff alleged a disability onset date of

2007.

2011,
Law

2012

(Administrative Record (“AR”)

(AR

233,

Plaintiff
Judge

(“First

237).

The

requested

(“ALJ”).

Hearing”).

(AR

denied

(AR 105-07, 108-10).
a

(AR

Agency

hearing

before

111-12).

49-68).

an

Plaintiff

A

Spanish

(AR 52).

19
20

At

the

First

Hearing,

vocational

expert

(“VE”)

Susan

D.

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Green incorrectly cited the Dictionary of Occupational Titles

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(“DOT”) code for Plaintiff’s previous relevant employment as a

23

data entry clerk.

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additional research to establish the proper DOT code.

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On May 23, 2012, the ALJ sought a written opinion by a new VE,

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Frank Corso, Jr., as to whether use of the wrong DOT code could

27

lead

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functional capacity (RFC).

to

an

(AR 72).

incorrect

After the hearing, the ALJ conducted

assessment

of

(AR 335-39).
2

Plaintiff’s

(AR 72).

residual

Mr. Corso proferred his

1

opinion on May 30, 2012.

2

informed Plaintiff that she wished to enter Mr. Corso’s opinion

3

into the record as additional evidence.

(AR 339).

On June 5, 2012, the ALJ

(AR 342).

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5

On June 14, 2012, Plaintiff, now represented by attorney

6

Joel D. Leidner, requested a supplemental hearing.

7

July 18, 2012, Plaintiff testified at the supplemental hearing

8

(“Second Hearing”).

9

decision on August 21, 2012.

(AR 69-96).

(AR 161).

On

The ALJ issued an unfavorable

(AR 22-38).

Plaintiff filed a

10

timely request for review with the Appeals Council on September

11

20, 2012 (AR 18), which the Council denied on October 22, 2013.

12

(AR 1-4).

13

2013.

Plaintiff filed the instant action on December 3,

(Dkt. No. 3).

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15

III.

16

FACTUAL BACKGROUND

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18

Plaintiff was born on October 18, 1965.

(AR 36).

She was

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forty-one years old as of the alleged disability onset date and

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forty-six years old when she appeared before the ALJ.

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75, 233, 237).

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and continued her education through the tenth grade after moving

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to the United States in 1978.

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a check processor for a bank for approximately ten years prior to

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the alleged disability onset date.

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(AR 57,

Plaintiff attended elementary school in Mexico

(AR 36, 58).

3

Plaintiff worked as

(AR 260).

She alleges that

1
2

pain in her hands prevented her from working after September 20,
2007.1

(AR 76).

3
4

On

September

27,

2007,

Plaintiff

filed

claims

with

the

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California Workers’ Compensation Appeals Board (“Board”) for four

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work-related injuries and conditions sustained between 2002 and

7

2007: “strain and stress on the job,” “[Plaintiff] fell from a

8

chair,” “a metal hit [Plaintiff’s] chest” and “strain of viewing

9

computer

monitor.”

(AR

203-07).

Board-approved

workers’

10

compensation physician Michael Bazel treated Plaintiff beginning

11

on September 27, 2007.

12

found Plaintiff ineligible for benefits, an ALJ reversed this

13

decision

14

Plaintiff had experienced hand pain since 2004, but a Board-

15

appointed orthopedic surgeon failed to consider this symptom when

16

he

17

(Id.).

18

217).

19

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on

certified

appeal.

Plaintiff

(AR 386).

(AR

to

214).

return

Although the Board initially

The

to

Board

work

in

ALJ

noted

February

that

2008.2

Plaintiff settled with the Board on July 7, 2009.3

(AR

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27
28

1

Plaintiff told the ALJ that she stopped working due to hand
pain. (AR 76). However, in the Disability Report accompanying
her benefits application, Plaintiff stated that she stopped
working because of “conditions” including “Lower back,” “Right
and Left Wrists,” “Carpal Tunnel,” “Arthritis in Knees and body,”
“Insomnia” and “Depression and Anxiety.” (AR 259).
2
The Board ALJ’s observation is confirmed by records from
Plaintiff’s personal physician, Dr. George Bernales, which noted
wrist pain as early as 2003. (See, e.g. AR 443).
3
As part of her workers’ compensation settlement, Plaintiff
declared that she was not receiving Social Security benefits and
did not anticipate applying for benefits within six months. (AR
231).
She did not apply for Social Security benefits until a
year after the settlement. (AR 233, 237).
4

1

A.

Medical History And Doctors’ Opinions

2
3

1.

Physical Condition

4
5

a.

Dr. George Bernales

6
7

Plaintiff first saw George Bernales, M.D., her primary care

8

physician, in 1994.

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for insomnia (January 12, 2000; AR 482); a ganglion cyst (June

10

21, 2000; AR 480); anxiety (June 20, 2001; AR 478); and a non-

11

cancerous growth in Plaintiff’s right eye.4

12

August

Plaintiff

to

13

rheumatologist Michael Maehara, M.D., for left wrist pain.

(AR

14

443).

15

reported suffering intermittent wrist pain for a year.

16

He attributed the pain “most likely [to] overuse syndrome” and

17

prescribed

Motrin,

18

Bernales.

(AR

19

syndrome (“CTS”) in April 2005.5

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25,

(AR 496).

2003,

Dr.

Dr. Bernales treated Plaintiff

Bernales

(AR 427-28).

referred

On

The rheumatologist’s treatment notes show that Plaintiff

also

444).

reporting
Dr.

Bernales

his

conclusions

diagnosed

carpal

(Id.).

to

Dr.

tunnel

(AR 429).

24
25
26
27
28

4

The specific eye diagnosis was of a pterygium. (AR 428). A
pterygium is a non-cancerous growth that may be symptomless or
cause burning, irritation or vision problems.
See Pterygium,
MEDLINEPLUS,http://www.nlm.nih.gov/medlineplus/ency/article/001011.
htm (last visited Oct. 9, 2014).
5
The exact date is unclear from the treatment note, as is the
wrist in question.
5

1

b.

Dr. Michael Bazel

2
3

On September 25, 2007, Plaintiff selected Michael Bazel,

4

M.D., to serve as the primary treating physician for her workers’

5

compensation

6

visited Dr. Bazel that same day.

7

two months after his last examination of Plaintiff, Dr. Bazel

8

issued his final “Permanent and Stationary Report” to the Board.

9

(Id.).

determination.

(AR

202,

386).

(AR 386).

Plaintiff

first

On February 9, 2009,

After describing the injuries Plaintiff alleged in her

10

workers’ compensation claims (AR 387-89), Dr. Bazel noted that

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Plaintiff complained of headache, “bilateral wrist and hand,”

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upper back pain, and low back pain.6

13

number

14

tenderness “over the dorsal and palmar aspects of the lists,

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bilaterally.”

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motion.

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Tinel and Phalen tests -- showed results consistent with the

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syndrome.7

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of

tests

(Id.).

on

Plaintiff’s

(AR 392).

(AR 389).
upper

He performed a

extremities,

noting

Both wrists showed a normal range of

However, two tests used to diagnose CTS -- the

\\

The Court assumes that “bilateral wrist and hand” also
refers to a pain complaint.
7
“In the Tinel test, the doctor taps on or presses on the
median nerve in the patient's wrist. The test is positive when
tingling in the fingers or a resultant shock-like sensation
occurs. The Phalen, or wrist-flexion, test involves having the
patient hold his or her forearms upright by pointing the fingers
down and pressing the backs of the hands together. The presence
of carpal tunnel syndrome is suggested if one or more symptoms,
such as tingling or increasing numbness, is felt in the fingers
within 1 minute.”
Carpal Tunnel Syndrome Fact Sheet, NINDS,
http://www.ninds.nih.gov/disorders/carpal_tunnel/detail_carpal_tu
nnel.htm (last visited Oct. 9, 2014).
6

1

Dr. Bazel also reviewed magnetic resonance images (MRIs) and

2

nerve

conduction

3

radiologist Sim Hoffman, M.D., on December 12, 2007.

4

He affirmed the radiologist’s impression that enlargement of the

5

median nerve in Plaintiff’s right wrist was consistent with CTS,

6

and also found mild enlargement of the median nerve in the left

7

wrist.8

8

extremity studies conducted on January 23 and July 31, 2008, Dr.

9

Bazel

(AR 399).

found

studies

of

Plaintiff’s

wrists

taken

by

(AR 399).

However, after comparing the results of upper

“definite

improvement”

in

Plaintiff’s

CTS

and

(AR 399-400).

an

10

apparent resolution of left ulnar neuropathy.

Dr.

11

Bazel also noted “tenderness and spasm” in Plaintiff’s lower back

12

(AR 395), and described an MRI showing “multilevel disk disease”

13

and a nerve conduction study “consistent with radiculopathy.”9

14

(AR 402).

15

noted “definite improvement” in the lumbar area, with “apparent

16

resolution” of neuropathy he had suspected earlier.

17

400).

Here once again, however, Dr. Bazel’s final report

(AR 399-

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19

Dr. Bazel’s December 9, 2008 Permanent and Stationary Report

20

made eleven diagnoses: (1) pterygium; (2) vision difficulty; (3)

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24
25
26
27
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8

In his report to Dr. Bazel, Dr. Hoffman opined that carpal
tunnel syndrome “cannot be excluded” (AR 348) and “should be
clinically considered.”
(AR 351).
Dr. Bazel interpreted Dr.
Hoffman’s MRIs and nerve conduction studies as showing “findings
consistent with bilateral carpal tunnel syndrome.”
(AR 402).
Dr. Hoffman did not compare the extent of the median nerve
enlargement in Plaintiff’s left and right wrists. (See AR 348,
351).
9
Radiculopathy is “any disease that affects the spinal nerve
roots,” and may be caused by herniated disks.
Herniated disk,
MEDLINEPLUS, http://www.nlm.nih.gov/medlineplus/ency/article/
000442.htm (last visited Oct. 10, 2014).
7

1

lower

2

bilateral wrist sprain; (7) bilateral CTS; (8) headaches; (9)

3

depression;

4

However,

5

“dramatically improved” and could return to work with certain

6

restrictions.11

7

pushing or pulling with the hand or wrist, avoiding repetitive

8

finger

9

avoiding

10

back

strain;

(10)

Dr.

or

(4)

disc

anxiety;

Bazel’s

and

2008

(Id.).

wrist
bending,

motion,

disease;

These

not

stooping,

found

included

lifting

that

(AR

20

prolonged

(6)

401).

Plaintiff

avoiding

“beyond

climbing,

walking, and driving over 60 minutes.

radiculopathy;

insomnia.10

(11)

report

(5)

had

repetitive

lbs.,”

and

standing

or

(AR 402).

11
12

c.

Dr. Carl E. Millner

13
14

On January 21, 2011, state agency consultative physician

15

Carl E. Millner, M.D., conducted an internal medicine examination

16

of Plaintiff.

17

knee pain, and Dr. Millner ordered x-rays of Plaintiff’s wrists

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and knees.

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swelling over all of these joints, but no acute conditions.

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511-12).

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lorazepam, ranitidine, cyclobenzaprine, and Tylenol Arthritis.12

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23
24
25
26
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28

(AR 506-10).

Plaintiff complained of wrist and

(AR 506, 511-12).

Plaintiff

reported

The x-rays revealed soft-tissue

that

10

she

was

currently

(AR

taking

Dr. Bazel noted that the pterygium had “resolved.”
(AR
400). Plaintiff appears to have undergone surgery to remove this
condition in 2006. (AR 426).
11
Dr. Bazel certified Plaintiff to return to work as early as
October 23, 2008, so long as she restricted the use of her hands.
(AR 406).
12
According to the National Institutes of Health, the first
three medications are used for the following conditions:
lorazepam
(anxiety,
insomnia);
ranitidine
(acid
reflux);
cyclobenzaprine (muscle pain and strain). Lorazepam, Ranitidine,
Cyclobenzaprine, MEDLINEPLUS, http://www.nlm.nih.gov/medlineplus/
8

1

Dr. Millner noted that Plaintiff’s CTS had “resolved” following

2

conservative

3

responses

4

condition.13

5

wrist joints, “[f]lexion, extension, radial deviation and ulnar

6

deviation

7

Flexion and extension of Plaintiff’s finger and thumb joints were

8

normal, as well.

9

difficulty,”

treatment.

to

both

the

(AR
Phalen

(AR 509).

are

within

507,

509).

He

recorded

and

Tinel

tests

used

normal

for

this

Dr. Millner noted that at Plaintiff’s

normal

(Id.).
to

limits

bilaterally.”

(AR

508).

She was able to make a fist “without

extend

her

hands,

and

“to

10

oppose the thumb to each finger.”

(Id.).

11

diagnosed

the

12

radiculopathy,

13

Plaintiff’s history he found that Plaintiff had “no restrictions”

14

on

15

sitting or any other physical activity.

mild

pushing,

osteoarthritis
based

on

pulling,

of

his

Although Dr. Millner

knees

examination

lifting,

carrying,

and

and

mild
a

walking,

lumbar

review

of

standing,

(AR 509-10).

16
17

2.

Mental Condition

18
19

a.

Dr. Alexis Meshi

20
21

On February 15, 2011, state agency consultative psychiatrist

22

Alexis

Meshi,

M.D.,

23

Plaintiff.

Dr. Meshi noted that Plaintiff drove herself to the

24

examination

but

25

Plaintiff reported that she had been struggling with moderate

wore

conducted

a

brace

a

on

mental

her

health

right

examination

hand.

(AR

of

515).

26
27
28

druginfo/meds/ (locate “Browse by generic or brand name” and
click first letter of drug name) (last visited Oct. 10, 2014)).
13
See n.7 for descriptions of these tests.
9

1

depression and some anxiety issues since 2007.

2

cried “more frequently,” suffered insomnia, and reported having

3

“what sounds like panic attacks.”

4

relieved these symptoms.

5

“[gotten] along excellently” while working at the bank and had

6

not been the subject of any “negative personnel action.”

7

516).

8

seeing a psychiatrist.

(Id.).

(AR 515-516).

(Id.).

She

However, medications
Plaintiff said she had

(AR

She denied a family mental illness history and was not
(Id.).

9
10

Dr. Meshi assessed Plaintiff with mild memory problems and

11

“more significant difficulty with attention and focus issues.”

12

(AR 518).

13

and

14

currently

15

Plaintiff had symptoms of depression and anxiety that could be

16

significantly relieved with appropriate treatment.

17

recommended that Plaintiff discuss further treatment with her

18

physician, and judged Plaintiff’s prognosis as “fair.”

However, she opined that Plaintiff could follow one-

two-part
not

instructions
doing.”

“certainly
(Id.).

with

Similarly,

treatment
she

she

noted

is
that

(Id.).

She

(Id.).

19
20
21

B.

Non-Examining

Physicians’

Opinions

Regarding

Plaintiff’s

Physical And Mental Condition

22
23

1.

Dr. Samantha Park

24
25

Nonexamining

physician

Samantha

Park,

M.D.,

reviewed

26

Plaintiff’s medical records on March 4, 2011.

27

Park took into account Plaintiff’s allegations of low back pain,

28

CTS, arthritis, insomnia, depression and anxiety.
10

(AR 97-104).

(AR 97).

Dr.

She

1

noted that Plaintiff had “sharp pains” in her wrists and knees

2

and

3

Plaintiff reported taking, her alleged physical limitations and

4

her

5

Plaintiff’s

6

Based on this review, Dr. Park filed a Disability Determination

7

showing

8

diagnosis of mild osteoporosis.14

had

headaches.

daily

(Id.)

activities.
medical

a

primary

Dr.

(Id.).

Park

Dr.

records.

diagnosis

noted

Park

(AR

of

the

also

98,

depression

medications

summarized

100,

and

a

102).

secondary

(AR 103-04).

9
10

2.

Dr. Winston Brown

11
12

Dr. Winston Brown reviewed Plaintiff’s records and created a

13

Mental RFC Assessment on March 4, 2011.

14

concluded

15

anxiety-related disorders.

16

exhibited a medically determinable impairment of anxiety that did

17

not precisely satisfy the criteria for a specific anxiety-related

18

disorder.

19

“not

20

range

21

sustained concentration and persistence, social interaction, and

22

ability

23

assessment,

24

perform work where interpersonal contact is incidental to work

25

performed, e.g. assembly work; complexity of tasks is learned and

26

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that

Plaintiff’s

(AR 530).

significantly
of

to

included

(AR 525).

both

Dr. Brown

affective

and

He found that Plaintiff

Dr. Brown opined that Plaintiff was either
limited”

capacities,

adapt.
Dr.

RFC

(AR 521-37).

Brown

or

“moderately

including

(AR

523).

concluded

limited”

understanding

As
that

an

overall

Plaintiff

and

across

memory,

mental
“is

a

able

RFC
to

27
14

28

The Disability Determination was also signed by C. Winston
Brown, M.D. (AR 103-04).
11

1

performed by rote, few variables, little judgment; supervision

2

required is simple, direct and concrete (unskilled).”

(Id.).

3
4

C.

Vocational Expert Testimony

5
6

1.

Susan Green

7
8
9

VE Susan Green testified at the First Hearing regarding the
existence

of

jobs

that

Plaintiff

could

perform,

(AR 65-67).

given

her

10

physical and mental limitations.

Following the

11

First Hearing, however, the ALJ concluded that Ms. Green used an

12

improper DOT code for Plaintiff’s past relevant work, causing her

13

to give inaccurate answers to the ALJ’s hypotheticals.

14

72).

15

assessment from a new VE, Frank Corso, Jr.

The ALJ discarded VE Green’s assessment and

(AR 28,
sought an

(AR 74, 336).

16
17

2.

Frank Corso, Jr.

18
19

The ALJ posed a single hypothetical in a written inquiry

20

that Mr. Corso answered on May 30, 2012.

21

asked

22

Plaintiff’s age, education, and literacy skills. The individual

23

previously worked as a Data Entry Clerk “with an exertional level

24

of sedentary work and a skill level . . . of 4.”

25

The individual had an RFC to perform light work as follows: “lift

26

and

27

unlimited sitting ability; stand and walk 6 hours total in an 8

28

hour workday and must be able to alternate sitting and standing

Mr.

carry

Corso

20

to

pounds

assume

a

hypothetical

occasionally

12

(AR 335-39).

and

10

The ALJ

individual

with

(AR 335, 337).

pounds

frequently;

1

every

occasional

stooping;

and

2

frequent handling and fingering with both hands.”

(AR 337).

Mr.

3

Corso opined that such an individual would not be able to perform

4

Plaintiff’s

5

requires constant fingering.”

6

concluded

7

occupations.

8

sorter, “cashier II,” sales attendant, charge account clerk, or

9

document preparer.”

2

hours

with

past

normal

relevant

that

such

breaks;

work,

an

(AR 338).

because

“‘Data

(AR 337).

individual

Entry

Clerk’

However, Mr. Corso

could

perform

other

These included work as an order clerk,

(Id.).

Mr. Corso opined that 1,400 to

10

60,000 such positions existed in the local economy, depending on

11

the specific job, and 40,000 to 1.7 million positions existed in

12

the national economy.

(Id.).

13
14

3.

Allan Ey

15
16

Mr. Corso was unable to testify at the Second Hearing, and

17

the ALJ sought new testimony from VE Allan Ey.

18

posed three hypotheticals.

19

to

20

background who could lift and carry twenty pounds occasionally

21

and ten pounds frequently.

22

for an unlimited time, stand and walk for six out of eight work

23

hours, alternate sitting and standing every two hours with normal

24

breaks, and do frequent handling and fingering with both hands.

25

(Id.).

26

Plaintiff’s past work, but could perform such “light” work as

27

cashier II, with 40,000 jobs available regionally and one million

28

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assume

VE

an

Ey

individual

opined

(AR 83-86).
of

that

such

13

an

The ALJ

First, she asked the VE

Plaintiff’s

(AR 83-84).

(AR 73).

age

and

educational

The individual could sit

individual

could

not

do

1

nationally, or mail clerk, with 6,000 jobs regionally and 100,000

2

nationally. (Id.).

3
4

In her second hypothetical, the ALJ asked Mr. Ey to assume

5

that the individual could lift and carry no more than ten pounds

6

either occasionally or frequently.

7

sit for no more than four out of eight hours but could stand and

8

walk for six out of eight hours.

9

could do only “frequent,” not constant, handling and fingering

10

with both hands, and would have to briefly alternate standing and

11

sitting

12

individual could not perform Plaintiff’s past work, but could

13

work

14

preparer.

15

available regionally and nationally.

each

as

a

hour.

food

(AR

and

(Id.).

85).

beverage

(Id.).

The individual could

(AR 84-85).

The

order

VE

opined

clerk

or

The individual

that

as

a

such

an

document

There were significant numbers of these jobs
(Id.).

16
17

Finally,

the

ALJ

asked

Mr.

Ey

to

consider

a

third

18

hypothetical individual who could lift and carry no more than ten

19

pounds occasionally or frequently and who could sit no more than

20

four out of eight hours.

21

could stand and walk no more than two hours out of every eight,

22

would have to alternate standing and sitting briefly every thirty

23

minutes, could do only occasional stopping, kneeling, crouching

24

and crawling, and could do no more than occasional fingering with

25

both hands.

26

do neither Plaintiff’s former relevant work nor any other job in

27

the regional or national economy.

28

\\

(Id.).

(AR 86).

However, this individual

The VE opined that such an individual could

14

(Id.).

1

The

ALJ

invited

(Id.).

Plaintiff’s

counsel

to

ask

additional

2

questions.

3

opine

4

workplace activities, specifically asking “if a person has to do

5

something frequently . . . would they necessarily have to do that

6

repetitively?”

7

activities

8

workday.

9

equivalence of the terms “frequent” and “repetitive” but opined

10

that frequent activities might be those that were “intermittent

11

repetitive.”

on

the

Of relevance here, counsel asked the VE to

relationship

(AR

are

those

87).

of

The

occupying

(AR 87-88).

“repetitive”

VE

and

responded

one-third

to

“frequent”

that

“frequent”

two-thirds

of

a

The VE was unable to establish a direct

(AR 88).

12
13

Counsel also asked the VE to consider an individual with

14

limitations

identical

15

Plaintiff: “no repetitive pushing or pulling with hand/wrist, no

16

repetitive

17

pounds, no bending, stooping, climbing, prolonged standing or

18

walking, no driving over 60 minutes.”

19

402).

20

could not do any of the alternative jobs.

21

referring to Dr. Meshi’s psychiatric report, counsel asked the VE

22

to

23

attention and focus problem but who could follow one- and two-

24

part instructions.

25

an individual could not do any of the alternative jobs.

26

\\

27

\\

28

\\

finger/wrist

to

those

motion,

Dr.

.

.

Bazel

.

no

had

specified

lifting

beyond

for

20

(Compare AR 90 and AR

The VE opined that an individual with those limitations

consider

an

individual

with

a

(AR 91, 92-93, 518).

15

(AR 91).

“moderately

Finally,

significant”

The VE opined that such
(AR 92).

1

D.

Plaintiff’s Testimony

2
3

1.

Testimony Before The ALJ

4
5

Plaintiff

attributed

her

condition

to

two

accidents

she

6

suffered while working for the bank, resulting in back and wrist

7

injuries.15

8

physicians until 2009, when she was treated by new physicians.

9

(AR 61-62).

(AR

61).

Plaintiff

saw

worker’s

compensation

She described her ongoing problems as lower back

10

pain, pain and numbness in her knees, neck and wrist pain, and

11

numbness in her fingers.

12

her back and wrists but avoided recommended back surgery “because

13

I’ve heard that people have become not able to walk.”

(AR 62).

She had physical therapy for

(Id.).

14
15

In a typical day, Plaintiff awoke at seven a.m., had a light

16

breakfast and then took pain medication.

(AR 63).

She also took

17

pain medication before going to bed at eight p.m., and again in

18

the middle of the night when she typically awoke with pain.

19

63-64).

20

not heavy” around the house and prepared meals, but relied on her

21

husband to help with household tasks she could not handle.

22

63, 77).

23

“burning pain” in her back and had to stand.

24

needed to stand for a few minutes during the Second Hearing.

(AR

During the day, she did “whatever I’m able to do that’s

(AR

She could sit for about an hour, but then would feel
(AR 64).

She
(AR

25
26
27
15

28

As both hearings were before ALJ Christine Long, discussion
of Plaintiff’s testimony will be combined in a single section.
16

1

77).

2

took walks around the block.

3

her to feel tired, and she felt best when lying down.

She could walk longer than she could sit, and routinely
(AR 64).

However, standing caused
(AR 78).

4
5

Plaintiff experienced “awful” back pain the night before the

6

Second Hearing, and stopped at her physician’s office for an

7

injection

8

(Id.).

9

for her hands and once a week for her back, but at the time of

of

pain

medication

prior

to

meeting

with

the

ALJ.

She continued to see a physical therapist twice a week

10

the

Second

Hearing

she

11

months.

12

time,”

13

testified that her medications were effective at treating her

14

pain but caused dizziness.

(AR 78-79).
including

had

not

seen

an

orthopedist

for

two

She wore braces on both wrists “most of the

while

driving.16

(AR

76-77).

Plaintiff

(AR 63).

15
16

Plaintiff testified that the pain in her hands caused her to

17

leave her bank job.

18

meeting

19

breaks.

20

she was unable to take it during the workday.

21

noted that Dr. Bazel, the workers’ compensation physician, told

22

her to reduce her work hours from eight to no more than four or

23

six.

24

\\

25

\\

production
(Id.).

(AR 76).

quotas

and

The pain prevented her from

caused

her

to

take

unscheduled

Because her pain medication caused dizziness,
(AR 79).

She

(AR 80).

26
27
28

16

Plaintiff gave conflicting testimony about her ability to
drive, first stating that lower back pain prevented her from
driving but then stating that she drove “a little.” (AR 58, 63).
17

1

2.

Statements From Plaintiff’s Benefits Application

2
3

In reports accompanying her benefits application, Plaintiff

4

stated that she stopped working on September 20, 2007, about a

5

year after her conditions caused her to modify her work habits.17

6

(AR 259).

7

“Right and Left Wrists,” “Carpal Tunnel,” “A[r]thritis in Knees

8

and body,” insomnia, depression and anxiety.

9

that her work consisted of running checks through a processing

10

machine and inputting information from the checks on a computer.

11

(AR 261).

12

checks”

13

twenty pounds.18

14

sit for six hours, walk or stand for one hour, and write, type or

15

handle small objects for seven hours.

16

have to write or complete reports.

Plaintiff listed these conditions as “Lower back,”

(Id.).

She noted

Twice a day, she had to lift and carry a “tray full of

approximately

thirty

(AR 280).

feet,

and

she

frequently

lifted

On a typical workday, Plaintiff would

(Id.).

Plaintiff did not

(Id.).

17
18

Plaintiff
knees,

described
and

also

her

symptoms

headaches,”

as

and

“sharp
stated

pains

that

on

19

wrist,

20

usually lasted five hours if unmedicated.

21

the Agency interviewer that she “[had been] taking medications

22

but I no longer take them.

(AR 287).

the

my

pain

She told

I am only taking [T]ylenol [for]

23
17

24
25
26
27
28

Plaintiff did not specify how she had modified her work
habits.
18
Plaintiff’s July 27, 2010 Disability Report and her October
27, 2010 Work History Report indicated that she carried different
maximum weights.
In the Disability Report, completed by Agency
interviewer P. Rangel, Plaintiff indicated that she carried a
maximum of ten pounds.
(AR 261).
In the Work History Report,
which Plaintiff completed on her own, she reported carrying up to
twenty pounds. (AR 280).
18

1

arthritis.”19

2

every other day, and stated that excessive lifting, kneeling,

3

“heavy duty work,” typing and writing caused pain.

(AR 287).

4

She also experienced migraines approximately monthly.

(AR 288).

5

Cold weather, air conditioning and “not having medicine” made her

6

symptoms worse, but wearing warm clothing, drinking hot tea and

7

physical therapy helped.

(AR 266).

Plaintiff reported experiencing pain

(Id.).

8
9

In a typical day, Plaintiff showered, had breakfast, did

10

“light” housework, went outside to water her plants, and fed her

11

dog and pet birds.

12

complete meals daily, but felt pain if she did not keep the

13

cooking “easy.”

14

week, wash small amounts of dishes when necessary and make her

15

bed every day.

16

bottles,

17

removing weeds and cutting the lawn.

(AR 289).

(AR 291).

(Id.).

getting

items

Plaintiff was able to prepare

She could do the laundry twice a

However, she needed help opening cans and
from

shelves,

sweeping

and

mopping,

(Id.).

18
19

Plaintiff went for walks outside twice a week (AR 289), went

20

grocery shopping once every two weeks for an hour, and could

21

drive on her own.

22

went to a park twice a week.

23

conditions she had to give up camping and could not attend social

24

events at night or in cold weather.

25

19

26
27
28

(AR 292).

She attended church once a week and
(AR 293).

However, due to her

(AR 294).

She no longer

Plaintiff’s Disability Report, completed by the Agency
interviewer, differed from with the “Pain and Other Symptoms”
report Plaintiff completed on her own three months later. On the
latter report, Plaintiff listed her current medications as
naproxen, omeprazole, temazepam, ranitidine, and lorazepam.
(Compare AR 266 and AR 288).
19

1

went to the gym, and required her husband’s help to walk the dog

2

or clean the bird cage.

3

as she wanted to, and “sharp pains” interfered with her sleep.

4

(Id.).

(AR 290).

She could not brush her hair

5
6

Plaintiff could pay attention for an hour, follow written

7

instructions well “after reading them 2-3 times,” and get along

8

well with authority figures.

9

fired from a job due to an inability to get along with others.

(AR 294-95).

She had never been

10

(AR 295).

However, she reported that she experienced anxiety

11

when home alone, and rated her stress level as “mid level.”20

12

(Id.).

13
14

IV.

15

THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS

16
17

To

qualify

disability

claimant

impairment that prevents her from engaging in substantial gainful

20

activity and that is expected to result in death or to last for a

21

continuous period of at least twelve months.

22

157

23

423(d)(1)(A)).

24

of performing the work she previously performed and incapable of

25

20

26
27
28

(9th

Cir.

1998)

physical

or

must

19

721

determinable

a

demonstrate

715,

medically

benefits,

18

F.3d

a

for

mental

Reddick v. Chater,

(citing

42

U.S.C.

§

The impairment must render the claimant incapable

In the Disability Report filed with her 2011 appeal,
Plaintiff described her hands as hurting more and her anxiety and
insomnia as worse. (AR 299). Due to a lack of income, she had
to borrow money from relatives in order to pay for pain
medication.
(AR 302).
She also reported suffering from
depression. (Id.).
20

1

performing any other substantial gainful employment that exists

2

in the national economy.

3

(9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).

Tackett v. Apfel, 180 F.3d 1094, 1098

4
5

To decide if a claimant is entitled to benefits, an ALJ

6

conducts a five-step inquiry.

7

20 C.F.R. §§ 404.1520, 416.920.

The steps are:

8
9

(1) Is the claimant presently engaged in substantial

10

gainful activity?

11

not disabled.

12

(2)

If so, the claimant is found

If not, proceed to step two.

Is the claimant’s impairment severe?

13

claimant is found not disabled.

14

If not, the

to step three.

15

(3)

If so, proceed

Does the claimant’s impairment meet or equal one

16

of

17

C.F.R. Part 404, Subpart P, Appendix 1?

18

the claimant is found disabled.

19

to step four.

20

(4)

the

specific

impairments

described

in

20

If so,

If not, proceed

Is the claimant capable of performing his past

21

work?

22

If not, proceed to step five.

23

(5)

If so, the claimant is found not disabled.

Is the claimant able to do any other work?

24

not, the claimant is found disabled.

25

claimant is found not disabled.

26
27

\\

28

\\
21

If

If so, the

1

Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari,

2

262 F.3d 949, 953-54 (9th Cir. 2001) (citations omitted); 20

3

C.F.R. §§ 404.1520(b)-(g)(1) & 416.920(b)-(g)(1).

4
5

The claimant has the burden of proof at steps one through

6

four, and the Commissioner has the burden of proof at step five.

7

Bustamante, 262 F.3d at 953-54.

8

affirmative duty to assist the claimant in developing the record

9

at every step of the inquiry.

Additionally, the ALJ has an

Id. at 954.

If, at step four, the

10

claimant meets her burden of establishing an inability to perform

11

past

12

perform some other work that exists in “significant numbers” in

13

the national economy, taking into account the claimant’s residual

14

functional capacity (“RFC”), age, education, and work experience.

15

Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20

16

C.F.R. §§ 404.1520(g)(1), 416.920(g)(1).

17

so by the testimony of a vocational expert or by reference to the

18

Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404,

19

Subpart P, Appendix 2 (commonly known as “the Grids”).

20

v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001).

21

has

22

limitations, the Grids are inapplicable and the ALJ must take the

23

testimony of a vocational expert.

24

869 (9th Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335,

25

1340 (9th Cir. 1988)).

26

\\

27

\\

28

\\

work,

both

the

Commissioner

exertional

must

show

that

claimant

can

The Commissioner may do

(strength-related)

22

the

and

Osenbrock

When a claimant
non-exertional

Moore v. Apfel, 216 F.3d 864,

1

V.

2

THE ALJ’S DECISION

3
4

The ALJ employed the five-step sequential evaluation process

5

and concluded that Plaintiff was not under a disability within

6

the meaning of the Social Security Act from September 20, 2007,

7

through the date of the ALJ’s decision on August 21, 2012.

8

38).

9

in substantial gainful employment since September 20, 2007. (AR

(AR

At step one, the ALJ found that Plaintiff had not engaged

10

31).

At step two, the ALJ found that Plaintiff had four “severe”

11

impairments: work-related CTS and left lumbar L5 radiculopathy;

12

mild degenerative disc disease of the lumbar spine; and mild

13

degenerative disc disease of the cervical spine (Id.).

14

three, the ALJ found that Plaintiff did not have an impairment or

15

combination of impairments that met or medically equaled one of

16

the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix

17

1. (AR 32).

18

RFC:

At step

The ALJ then found that Plaintiff had the following

19

[Plaintiff] has the residual functional capacity to:

20

lift and carry 20 pounds occasionally and 10 pounds

21

frequently; sit without limitation; stand and walk 6

22

hours in an 8-hour workday, but she must be able to

23

alternate between sitting and standing briefly every 2

24

hours

25

frequently handle and finger with both hands (20 CFR

26

404.1520(e); 20 CFR 416.920(e)).

with

normal

breaks;

27
28

(Id.).
23

occasionally

stoop;

and

1

In making this finding, the ALJ gave significant weight to

2

Dr. Bazel’s conclusions about Plaintiff’s CTS.21

3

noted, in particular, that while Dr. Hoffman’s MRI and nerve

4

conduction studies suggested carpal tunnel syndrome, Dr. Bazel’s

5

December 9, 2008 final report found that Plaintiff’s condition

6

had shown “definite improvement” during 2008.

7

noted

8

conservative treatment, Plaintiff had “dramatically improved and

9

[was] able to go to modified duty.”

Dr.

Bazel’s

opinion

that

after

(AR 34-35).

(AR 34).
a

full

She

She also

course

of

(AR 35).

10
11

Further, the ALJ observed that there was no evidence in the

12

Administrative

13

obtained treatment for CTS between December 2008 and November

14

2011,

15

confirming that CTS was still present.

16

Bazel

17

finger

18

Plaintiff to make “frequent” wrist or finger motions.

(Id.).

19

Such motions, she observed, were consistent with the RFC.

(Id.).

20

Similarly,

21

“consistent

22

encompassed by the RFC.

23

\\

24

\\

25

21

26
27
28

when

had

Record

suggesting

Plaintiff

advised

motions,

Dr.
with

had

a

Plaintiff

the

ALJ

Bazel’s
light

that

single

to

Permanent
work

neurological

avoid

concluded

Plaintiff

(Id.).

this

Although Dr.

activities”

and

wrist

still

Stationery
the

or

consultation

“repetitive”

that

and

sought

and

permitted

Report

was

limitations

(Id.).

The ALJ noted that the Administrative Record included
treatment records from Plaintiff’s primary care physician, Dr.
Bernales, but observed that these records did not establish
impairment as of the alleged disability onset date.
(AR 36).
She opined that Dr. Bernales’s records from before or after the
“2007-2009” period were not relevant to her inquiry. (Id.).
24

1

Additionally, the ALJ weighed Plaintiff’s testimony as to

2

her symptoms, limitations and daily activities, concluding that

3

Plaintiff’s testimony was not completely credible.

4

The ALJ reasoned, in particular, that Plaintiff’s decision not to

5

undergo surgery, her “minimal use of medication,” and lack of

6

follow-up treatment or limited use of recommended specialists

7

indicated that her pain was less severe than alleged.

8

Moreover, Plaintiff was able to wash dishes, do laundry, cook,

9

clean, feed her puppy, and grasp and pull weeds, all of which

10

suggested

that

her

11

alleged.

capabilities

were

not

as

(AR 33-34).

limited

(Id.).

as

she

(Id.).

12
13

At step four, the ALJ determined that Plaintiff was unable

14

to perform any past relevant work as defined by 20 C.F.R. §§

15

404.1520(f),

404.1565,

16

Finally,

step

17

education, work experience, and RFC and concluded that she could

18

perform jobs available in significant numbers in the national

19

economy.

20

“additional limitations,” she could not be expected to perform

21

the full range of “light work.”

22

the

23

employment as an order clerk, clerical sorter, sales attendant or

24

mail clerk.

25

Plaintiff was not disabled under the Agency’s rules.

26

\\

27

\\

28

\\

VE

at

(AR

38).

testimony,

416.920(f)

five

the

The

the

ALJ

ALJ

(AR 37-38).

ALJ

and

416.965.

considered

noted

that,

(AR 37).

found

that

(AR

36).

Plaintiff’s

age,

due

to

Plaintiff’s

However, considering
Plaintiff

could

find

Therefore, the ALJ concluded that

25

(AR 38).

1

VI.

2

STANDARD OF REVIEW

3
4

Under 42 U.S.C. § 405(g), a district court may review the

5

Commissioner’s decision to deny benefits.

The court may set

6

aside the Commissioner’s decision when the ALJ’s findings are

7

based on legal error or are not supported by substantial evidence

8

in the record as a whole.

9

1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); Smolen

10

v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Fair v.

11

Bowen, 885 F.2d 597, 601 (9th Cir. 1989)).

Aukland v. Massanari, 257 F.3d 1033,

12
13

“Substantial evidence is more than a scintilla, but less

14

than a preponderance.”

15

v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)).

16

evidence which a reasonable person might accept as adequate to

17

support a conclusion.” Id. (citing Jamerson, 112 F.3d at 1066;

18

Smolen,

19

evidence supports a finding, the court must “‘consider the record

20

as a whole, weighing both evidence that supports and evidence

21

that detracts from the [Commissioner’s] conclusion.’”

22

257 F.3d at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th

23

Cir.

24

affirming

25

substitute its judgment for that of the Commissioner.

26

157 F.3d at 720-21 (citing Flaten v. Sec’y, 44 F.3d 1453, 1457

27

(9th Cir. 1995)).

80

F.3d

1993)).
or

at

If

Reddick, 157 F.3d at 720 (citing Jamerson

1279).

the

reversing

To

evidence
that

determine

can

28
26

whether

reasonably

conclusion,

It is “relevant

the

substantial

Aukland,

support
court

either

may

not

Reddick,

1

VII.

2

DISCUSSION

3
4

Plaintiff

challenges

the

ALJ’s

decision

on

two

grounds.

5

First, Plaintiff asserts that because ALJ failed to reject Dr.

6

Bazel’s

7

assessment must be credited as true.

(Memorandum in Support of

8

Plaintiff’s Complaint (“MSPC”) at 5).

Second, because Dr. Bazel

9

recommended that Plaintiff avoid repetitive use of her hands,

10

Plaintiff contends that the ALJ’s hypothetical -- which allegedly

11

omitted any reference to this limitation -- elicited inaccurate

12

testimony from VE Allan Ey.

assessment

of

Plaintiff’s

physical

limitations,

that

(MSPC at 6-7).

13
14

The

Court

disagrees

with

both

contentions.

The

record

15

demonstrates that the ALJ credited Dr. Bazel’s opinion, gave it

16

great weight, and found it consistent with the RFC she applied.

17

Moreover, the record contradicts Plaintiff’s assertion that the

18

ALJ disregarded Dr. Bazel’s recommendation against “repetitive”

19

hand

20

Accordingly, for the reasons discussed below, the Court finds

21

that the ALJ’s decision must be AFFIRMED.

motions

when

she

posed

her

hypotheticals

to

VE

Ey.

22
23

A.

The ALJ Gave Proper Weight To Dr. Bazel’s Opinions

24
25

Plaintiff argues that the ALJ discussed but did not reject

26

Dr.

Bazel’s

report,

and

that

27

Plaintiff’s limitations should therefore be credited as true.

28
27

Dr.

Bazel’s

assessment

of

1

(MSPC at 5).

2

Bazel’s report and arrived at a proper outcome.

The Court disagrees.

The ALJ did fully credit Dr.

3
4

Social Security regulations require the ALJ to consider all

5

relevant medical evidence when determining whether a claimant is

6

disabled.

7

Where the Agency finds the treating physician’s opinion of the

8

nature and severity of the claimant’s impairments well-supported

9

by accepted medical techniques, and consistent with the other

10

substantive evidence in the record, that opinion is ordinarily

11

controlling.

12

625, 631 (9th Cir. 2007).

13

(citing

14

physician’s opinion is owed deference, and often the “greatest”

15

weight).

16

rejecting

17

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

20 C.F.R. §§ 404.1520(b), 404.1527(c), 416.927(c).

20 C.F.R. § 404.1527(c)(2); Orn v. Astrue, 495 F.3d

Orn)(even

when

See also Garrison, 759 F.3d at 1012
contradicted,

treating

or

examining

An ALJ must give “specific and legitimate” reasons for
the

findings

of

treating

or

examining

physicians.

18
19

Nevertheless, the ALJ is also “responsible for determining

20

credibility, resolving conflicts in medical testimony, and for

21

resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039

22

(9th Cir. 1995); see also Tommasetti v. Astrue, 533 F.3d 1035,

23

1041

24

respect

25

Findings of fact that are supported by substantial evidence are

26

conclusive. 42 U.S.C. § 405(g); see also Kay v. Heckler, 754 F.2d

27

1545, 1549 (9th Cir. 1985) (“Where the evidence as a whole can

28

support

(9th
to

Cir.

2008)

resolving

either

a

(“[T]he

ALJ

ambiguities

grant

or

a
28

is
in

the
the

denial,

final
medical

[the

arbiter

with

evidence.”).

court]

may

not

1

substitute [its] judgment for the ALJ's.”); Ryan v. Comm'r, 528

2

F.3d 1194, 1198 (9th Cir. 2008) (“‘Where evidence is susceptible

3

to more than one rational interpretation,’ the ALJ's decision

4

should be upheld.”) (quoting Burch v. Barnhart, 400 F.3d 676, 679

5

(9th

6

evidence in the record, but only evidence that is significant or

7

probative.

8

1012 (9th Cir. 2006).

Cir.

2005)).

An

ALJ

need

not

address

every

piece

of

See Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006,

9
10

Here,

Plaintiff

asserts

that

the

ALJ

“did

not

properly

11

reject the residual functional capacity set by [Dr. Bazel]” and

12

the Court should therefore credit Dr. Bazel’s report as true.

13

(MSPC at 5).

14

consideration to Dr. Bazel’s prescribed hand restrictions, which

15

included “[n]o repetitive pushing or pulling with hand/wrist,

16

[and] no repetitive finger/wrist motion.”

17

also

18

October 22, 2008, advised Plaintiff to make only “limited use” of

19

her hands.

20

Barnhart, 379 F.3d 587 (9th Cir. 2004), for the proposition that

21

limitations identified by a treating physician, and not properly

22

rejected

by

23

alleges

that

24

caused her to pose faulty hypotheticals to VE Ey.22

25

22

26
27
28

Plaintiff suggests that the ALJ failed to give due

observes

that

Dr.

Bazel’s

“After

(MSPC at 5; AR 557).

an

ALJ,

the

should

ALJ’s

be

failure

Care

Plaintiff

Instructions”

of

Plaintiff cites Benecke v.

credited
to

(AR 402).

as

credit

true.

Dr.

Plaintiff

Bazel’s

report

Plaintiff’s Complaint focuses on the part of Dr. Bazel’s
report relating to Plaintiff’s hand limitations, but Dr. Bazel
also opined on Plaintiff’s limitations due to her lumbar
condition.
(AR 402).
These included “[n]o lifting beyond 20
lbs., no bending, stooping, climbing, prolonged standing or
walking, no driving over 60 minutes.” (Id.). The ALJ included
29

1

The

2

appropriately

3

inapposite.

4

proceedings

5

hypothetical

6

established by improperly discredited testimony would contribute

7

to waste and delay and would provide no incentive to the ALJ to

8

fulfill her obligation to develop the record.”

9

at

Court

595.

is

satisfied,

credit

Dr.

however,

Bazel’s

that

report,

the

and

ALJ

did

Benecke

is

Benecke held that “[r]equiring remand for further
any

time

the

question

In

the

vocational

addressing

present

case,

expert
the

the

did

not

precise

ALJ

answer

a

limitations

Benecke, 379 F.3d

did

not

“improperly

10

discredit” Dr. Bazel’s December 9, 2008 Permanent and Stationary

11

Report.

12

Plaintiff’s treating physician, cited his report repeatedly and

13

at length, compared his treatment notes with Dr. Hoffman’s, and

14

specifically

15

repetitive finger/wrist motion.”

16

restriction

17

suggests the ALJ discredited.

(MSPC at 3; Plaintiff’s Response

18

to

Support

19

Response” at 2)).

20

finger/wrist motion” was consistent with “frequent (not constant)

21

fingering.”

To

the

contrary,

cited

is

Dr.

ALJ

Bazel’s

precisely

Defendant’s

the

Memorandum

the

in

identified

work

Dr.

Bazel

restrictions

(AR 34-35, 402).
recommendation

of

“no

The latter

that

Answer

of

as

Plaintiff

(“Plaintiff’s

The ALJ found that Dr. Bazel’s “no repetitive

(AR 35).

22
23

Moreover,

the

ALJ

gave

due

consideration

to

Dr.

Bazel’s

24

entire report, which not only recommended that Plaintiff avoid

25

repetitive hand motions but also noted “definite improvement” in

26

her

lumbar

and

upper

extremity

condition

and

the

“complete

27
28

these limitations, with minor variations
questioned, in her RFC. (AR 32).
30

Plaintiff

has

not

1

resolution” of her neuropathy.

2

Bazel’s

3

extremity studies)).

4

found

5

course of 2008, leaving her ready to return to “modified duty” at

6

work.

7

at an appropriate RFC.

review

of

Plaintiff’s

(AR 401).

January

(AR 34; see also AR 399-400 (Dr.

and

July

2008

lumbar

and

upper

The full record reveals that Dr. Bazel

condition

“dramatically

improved”

over

the

Crediting his report as true, the ALJ arrived

8
9

B.

10

The ALJ Arrived At A Valid RFC Based On The Complete Record,
And The Vocational Expert Testimony Was Proper

11
12

The ALJ concluded that Plaintiff had an RFC that included

13

the ability to “frequently handle and finger with both hands.”

14

(AR 32).

15

considerable time to questioning VE Allan Ey as to the meaning of

16

Dr. Bazel’s restriction on “repetitive fingering.”

17

Plaintiff’s counsel appears to have been concerned that an RFC

18

permitting

19

with the “repetitive” hand motions Dr. Bazel counseled Plaintiff

20

to

21

identical meanings in this context.

avoid.

At the Second Hearing, Plaintiff’s counsel devoted

“frequent”

However,

handling

and

“frequent”

and

fingering

was

“repetitive”

(AR 87-89).

inconsistent

do

not

have

22
23

Under Social Security Ruling (“SSR”) 83-10, “‘[f]requent’

24

means occurring from one-third to two-thirds of the time.”

25

83-10, 1983 WL 31251 (1983).

26

occurring from very little up to one-third of the time.”

Id.

27

The

are

28

performed primarily in one location, with the ability to stand

same

Ruling

notes

that

SSR

“Occasionally,” by contrast, “means

“[m]any

31

unskilled

light

jobs

1

being more critical than the ability to walk.

2

of arms and hands to grasp and to hold and turn objects, and they

3

generally do not require use of the fingers for fine activities

4

to

5

“light” jobs require more standing or walking.

the

extent

required

in

much

sedentary

They require use

work,”

even

though

Id.

6
7

The Agency thus routinely uses “frequent” and “occasional”

8

to

describe

different

physical

movements

associated

with

its

9

categories of “light” and “sedentary” work, but does not employ

10

the term “repetitive” in the same way.

11

concluded that “frequent” and “repetitive” are not synonymous.23

12

See, e.g., Gallegos v. Barnhart, 99 Fed. Appx. 222, 224 (10th

13

Cir., 2004)(“frequent” and “repetitive” are not synonymous, and

14

ALJ’s

15

“frequent” reaching, handling or fingering was not inconsistent

16

with

17

LeFevers v. Comm’r, 476 Fed. Appx. 608, 611 (6th Cir. 2012)(“In

18

ordinary nomenclature, a prohibition on ‘repetitive’ lifting does

finding

that

physician’s

plaintiff

could

recommendation

Courts have generally

perform

against

jobs

“repetitive”

requiring

actions);

19
23

20
21
22
23
24
25
26
27
28

The Ninth Circuit has noted that “frequent” and “repetitive”
are not the same. Gardner v. Astrue, 257 Fed. Appx. 28, 30 n.5
(9th
Cir.
2007).
Furthermore,
the
court
found
that
“‘repetitively’ in this context appears to refer to a qualitative
characteristic--i.e., how one uses his hands, or what type of
motion is required—whereas ‘constantly’ and ‘frequently’ seem to
describe a quantitative characteristic--i.e., how often one uses
his hands in a certain manner. Under this reading, a job might
require that an employee use his hands in a repetitive manner
frequently, or it might require him to use his hands in a
repetitive manner constantly.” Id. (emphasis in original). As
such, the court theorized, “someone who cannot not use his hands
constantly in a repetitive manner, but can use his hands
frequently in a repetitive manner, could perform the jobs of
electronics worker and marker.” Id. (emphasis in original).
32

1

not preclude a capacity for ‘frequent’ lifting,” and non-Agency

2

doctor’s use of term “repetitive” was not inconsistent with RFC

3

for light work); McCarter v. Colvin, 2014 WL 4908990 (D. Kan.,

4

Sept.

5

fingering with the right hand and no repetitive use by the right

6

hand is not erroneous, as ‘no repetitive’ use and ‘frequent’ use

7

are synonymous”)(emphasis added).

30,

2014)(“ALJ’s

hypothetical

of

frequent

handling

and

8
9

The Court therefore disagrees with Plaintiff’s contention

10

that

the

ALJ

accepted

11

recommendation

12

above, the ALJ gave ample consideration to Dr. Bazel’s entire

13

assessment, which did not specifically bar “frequent” handling

14

and fingering.

15

relevant

against

RFC

inconsistent

“repetitive”

16

“frequent” and “repetitive” handling and fingering.

17

record

18

“frequent” use of the hands -- the standard the ALJ used in her

19

hypotheticals

20

motions.

21

“intermittent repetitive” activity could involve “some breaks,

22

but at times you’re doing repetitive types of things.”

23

He offered the example of a telephone order taker whose actions

24

are

25

(Id.).

26

hypothetical employee who was restricted from using “repetitive”

27

(not “intermittent repetitive”) hand, finger and wrist motions.

28

(AR 90).

hand

with

Dr.

motions.

Bazel’s

As

noted

The transcript of the Second Hearing, like the

case

shows

an

law,

VE

--

(AR

repetitive

Ey

does

not

agreeing

might

show

with

require

88-89)(emphasis

while

entering

any

basis

Plaintiff’s

“intermittent
added).

data,

but

The

not

for

equating

At most, the

suggestion

repetitive”
VE

at

opined

that

hand
that

(AR 88).

other

times.

Plaintiff’s counsel then asked the VE to consider a

The VE opined that such a person could not do the
33

1

alternative work that would have been permissible under two of

2

the ALJ’s three hypotheticals.

(Id.).

3
4

Moreover, the ALJ’s hypotheticals did not demand that the

5

individual

perform

6

hypotheticals the ALJ posed to Mr. Ey asked him to consider an

7

individual

motions

more

8

limited than those described in Dr. Bazel’s restrictions.

(AR

9

84-86).

The

whose

“repetitive”

work

hand

activities

motions.

required

hand

All

three

As such, they fell within Dr. Bazel’s restrictions.

10

ALJ

twice

asked

Mr.

Ey

to

describe

alternative

work

for

an

11

individual who could do “only frequent handling and fingering

12

with both hands,” and added a third hypothetical involving an

13

individual “who could do no more than occasional handling and

14

fingering.” (AR 84-86).

15

of “frequent” handling and fingering could find alternative work,

16

but one capable of only “occasional” hand motions could not.

17

(Id.).

Mr. Ey opined that an individual capable

18
19

In reviewing an ALJ’s findings, the court also considers

20

whether her decision is supported by substantial evidence in the

21

record as a whole.

22

properly considered evidence indicating that Plaintiff’s symptoms

23

were not as severe as alleged.

24

Dr. Bazel’s finding that Plaintiff’s condition had dramatically

25

improved following a full course of conservative treatment, with

26

no

27

recommended follow-up treatment that was also conservative, such

28

treatment by an orthopedist.

surgery.

(AR

Aukland, 257 F.3d at 1035.

35).

(See AR 34).

Plaintiff

did

(Id.).
34

not

Here, the ALJ

First, she noted

avail

herself

of

Plaintiff did not seek

1

follow-up treatment for CTS from December 2008 until she had a

2

single

3

“[E]vidence of ‘conservative treatment’ is sufficient to discount

4

a

5

Parra

6

Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995)).

neurology

claimant's
v.

consultation

testimony

Astrue,

481

in

regarding
F.3d

742,

November

severity
751

2011.

of

(9th

(AR

35).

an

impairment.”

Cir.

2007)(citing

7
8
9

Subjective evidence in the record also supports the ALJ’s
conclusions regarding Plaintiff’s credibility.
ALJ

that

she

left

10

the

11

problems with [her] hands.”

12

Bazel that she was fired after struggling to keep up with her

13

work requirements (which may have related to her hand problems),

14

but also because a “new manager . . . came in who had favorites

15

and started to cut back her work hours and give them to [the

16

manager’s]

17

prescribed pain medications because they made her sleepy, but did

18

not present evidence that she had requested adjustments to her

19

medications that might have addressed these concerns.

20

63).

‘friends’.”.

her

(AR

job

because

(AR 76).

388).

she

Plaintiff told
“started

having

However, she told Dr.

Plaintiff

avoided

taking

(AR 33,

21
22

As the ALJ also observed, Plaintiff’s testimony as to her

23

daily activities weakened her credibility.

24

could prepare breakfast and dinner, “try to pick up light duties

25

around my home,” take showers, feed her puppy, and take walks

26

twice a week.

27

make her bed daily, and water her plants.

28

noted that although Plaintiff had difficulty brushing her hair,

(AR 289).

(AR 33).

Plaintiff

She was able to do laundry and dishes,

35

(AR 291).

The ALJ

1

“[i]t was noted at the face-to-face application meeting . . .

2

that

3

writing.”

4

“ability

5

grip/grasp and pull, is inconsistent with her statement . . .

6

that she needs help opening cans and bottles.”

7

although Plaintiff stated in her application that she could only

8

stand or walk for thirty minutes and sit for an hour, she told

9

the ALJ that she could “walk longer than sitting,” and walked

10

[Plaintiff]

did

(AR 33).
to

not

have

problems

using

her

hands

or

Similarly, the ALJ reasoned that Plaintiff’s

remove

weeds,

around the block for exercise.

which

requires

the

ability

(Id.).

to

Finally,

(AR 64).

11
12

When assessing a claimant’s credibility, the ALJ must engage

13

in a two-step analysis.

14

(9th Cir. 2012).

15

medical evidence of an impairment that could reasonably produce

16

the symptoms alleged.

17

must make specific credibility findings in order to reject the

18

claimant’s testimony.

19

techniques

20

reputation for lying, prior inconsistent statements concerning

21

the symptoms, and other testimony by the claimant that appears

22

less

23

failure to seek treatment or to follow a prescribed course of

24

treatment; and (3) the claimant's daily activities.”

25

F.3d at 1284; Tommasetti, 533 F.3d at 1039.

26

ALJ considered evidence in all of these categories and rendered

27

specific credibility findings that led her to reject Plaintiff’s

28

testimony.

than

of

Molina v. Astrue, 674 F.3d 1104, 1112

First, the ALJ must determine if there is

(Id.).

(Id.).

credibility

candid;

(2)

If such evidence exists, the ALJ

The ALJ may consider “(1) ordinary

evaluation,

unexplained

36

or

such

as

the

inadequately

claimant's

explained

Smolen, 80

As noted above, the

1

In

2

report,

3

considering the credibility of Plaintiff’s own testimony, the ALJ

4

arrived

5

supported by the record.”

6

took

7

experts

8

Plaintiff does not suggest that Mr. Ey, the VE at the Second

9

Hearing,

sum,

after

assessing

at

care

giving
other

hypotheticals

to

when

made

solicit
the

any

full

medical

that

to

evidence

were

Dr.
in

Bazel’s
the

“accurate,

from

VE’s

error

two

detailed,

additional

testimony

in

answering

10

hypotheticals.

11

proved

the

entire

record

Tackett, 180 F.3d at 1101.

opinions

first

weight

and

and

The ALJ

vocational

faulty,

ALJ’s

and

valid

Accordingly, the VE’s testimony was proper and

remand is not justified on this ground.

12
13

VIII.

14

CONCLUSION

15
16

Consistent with the foregoing, IT IS ORDERED that Judgment

17

be entered AFFIRMING the decision of the Commissioner. The Clerk

18

of the Court shall serve copies of this Order and the Judgment on

19

counsel for both parties.

20
21

DATED:

October 28, 2014

/S/
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE

22
23
24

NOTICE

25
26

THIS DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS/NEXIS,
WESTLAW OR ANY OTHER LEGAL DATABASE.

27
28
37