David Ruben Jimenez v. Carolyn W. Colvin

Filing 30

MEMORANDUM OPINION AND ORDER by Magistrate Judge Rozella A. Oliver. IT IS ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits. (sbu)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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DAVID RUBEN JIMENEZ,

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Plaintiff,

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Case No. CV 16-00111-RAO

v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

MEMORANDUM OPINION AND
ORDER

Defendant.

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I.

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INTRODUCTION
Plaintiff David Ruben Jimenez (“Plaintiff”) challenges the Commissioner’s

termination of his disability benefits. For the reasons stated below, the decision of
the Commissioner is AFFIRMED.
II.

PROCEEDINGS BELOW
In December 2004, the Social Security Administration determined that

Plaintiff was disabled as of January 2003 due to his mental condition.

(See

Administrative Record (“AR”) 17, 69, 131.) At that time, the Social Security
Administration found Plaintiff had a depressive disorder with anxiety that met
section 12.04A and B of 20 CFR Part 404, Subpart P, Appendix 1. (See AR 17.)

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On April 11, 2013, it was determined that Plaintiff was no longer disabled, pursuant

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to the Social Security Act,1 as of April 2013, and was no longer entitled to disability

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benefits. (AR 69-72.) This determination was upheld upon reconsideration on

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September 18, 2013, after a case review by a Disability Hearing Officer. (AR 78-

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87, 89.) On September 26, 2013, Plaintiff filed a written request for a hearing, and

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a hearing was held on July 8, 2014. (AR 29, 93.) Represented by counsel, Plaintiff

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appeared and testified, along with an impartial vocational expert (“VE”). (AR 31-

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55.) On July 25, 2014, the Administrative Law Judge (“ALJ”) found that Plaintiff’s

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disability ended on April 11, 2013. (AR 12-24.) The ALJ’s decision became the

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Commissioner’s final decision when the Appeals Council denied Plaintiff’s request

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for review. (AR 1-4.) Plaintiff filed this action on January 6, 2016. (Dkt. No. 1.)

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The ALJ followed an eight-step sequential evaluation process to assess

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whether Plaintiff continued to be disabled under the Social Security Act. 20 CFR

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§ 404.1594(f).

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substantial gainful activity through April 11, 2013. (AR 17.) At step two, the ALJ

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found that, as of April 11, 2013, Plaintiff “did not have an impairment or

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combination of impairments that met or medically equaled the severity of an

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impairment listed in 20 CFR Part 404, Subpart P, Appendix 1.” (Id.) At step

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three, the ALJ found that Plaintiff “has had significant medical improvement as of

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April 11, 2013.”

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improvement was related to the ability to work because Plaintiff’s impairments no

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longer met or medically equaled the same listing that was met at the time of the

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comparison point decision (“CPD”). (Id.) Accordingly, the ALJ made no step five

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

(AR 18.)

At step four, the ALJ found that the medical

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Persons are “disabled” for purposes of receiving Social Security benefits if they
are unable to engage in any substantial gainful activity owing to a physical or
mental impairment expected to result in death, or which has lasted or is expected to
last for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A).
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finding2 and proceeded to step six, where the ALJ determined that Plaintiff

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continues to have a severe impairment or combination of impairments that “caused

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more than minimal limitation in [Plaintiff’s] ability to perform basic work

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activities.” (AR 18.)
At step seven, the ALJ found that Plaintiff has the residual functional

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capacity (“RFC”) to:

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[P]erform a reduced range of light work as defined in 20 CFR
404.1567(b), such that: he could lift and carry twenty pounds
occasionally and ten pounds frequently; he could stand and walk, with
normal breaks, for a total of four hours in an eight-hour workday, and
he could sit, with normal breaks, for a total of six hours in an eighthour workday; he could occasionally walk over uneven terrain, climb
ladders, work at heights, and stoop; and he could frequently perform
all other postural activities. In the mental realm, the claimant was
limited to understanding, remembering, and carrying out simple,
repetitive tasks with no more than occasional public contact.

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(AR 19.) Based on the Plaintiff’s RFC and the VE’s testimony, the ALJ found that

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Plaintiff is not capable of performing past relevant work as a sales attendant, stock

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clerk, or orderly. (AR 22.) At step eight, “[c]onsidering the claimant’s age,

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education, work experience, and residual functional capacity,” the ALJ found that

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Plaintiff “was able to perform a significant number of jobs in the national

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economy.” (Id.) Accordingly, the ALJ determined that Plaintiff’s disability had

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ended as of April 11, 2013. (AR 23.)

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III.

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STANDARD OF REVIEW

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

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decision to terminate benefits. A court must affirm an ALJ’s findings of fact if they

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are supported by substantial evidence, and if the proper legal standards were

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applied. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). “‘Substantial

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Step four of the eight-step sequential process for determining whether an
individual continues to be disabled states that “[i]f medical improvement is related
to [the claimant’s ability to work, see step (6).” 20 C.F.R. § 404.1594(f)(4).
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evidence’ means more than a mere scintilla, but less than a preponderance; it is

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such relevant evidence as a reasonable person might accept as adequate to support a

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conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing

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Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). An ALJ can

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satisfy the substantial evidence requirement “by setting out a detailed and thorough

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summary of the facts and conflicting clinical evidence, stating his interpretation

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thereof, and making findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir.

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1998) (citation omitted).

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“[T]he Commissioner’s decision cannot be affirmed simply by isolating a

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specific quantum of supporting evidence. Rather, a court must consider the record

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as a whole, weighing both evidence that supports and evidence that detracts from

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the Secretary’s conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir.

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2001) (citations and internal quotation marks omitted).

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susceptible to more than one rational interpretation,’ the ALJ’s decision should be

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upheld.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing

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Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)); see Robbins, 466 F.3d at

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882 (“If the evidence can support either affirming or reversing the ALJ’s

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conclusion, we may not substitute our judgment for that of the ALJ.”). The Court

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may review only “the reasons provided by the ALJ in the disability determination

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and may not affirm the ALJ on a ground upon which he did not rely.” Orn v.

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Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (citing Connett v. Barnhart, 340 F.3d

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871, 874 (9th Cir. 2003)).

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IV.

“‘Where evidence is

DISCUSSION

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Plaintiff raises four issues for review: (1) whether the ALJ properly

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considered Plaintiff’s mental condition and limitations; (2) whether the ALJ

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properly considered Plaintiff’s combination of impairments; (3) whether the ALJ

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properly considered Plaintiff’s RFC; and (4) whether the ALJ properly determined

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that Plaintiff could perform a significant number of jobs. (Joint Stipulation (“JS”)
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4-5, Dkt. No. 29.) Plaintiff contends that the ALJ failed to properly consider

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Plaintiff’s mental impairments, failed to consider the combined effects of Plaintiff’s

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impairments, failed to properly assess Plaintiff’s RFC, and failed to include all of

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Plaintiff’s impairments in the hypothetical posed to the VE. (See JS 5-12, 21-23,

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25-31, 33-36.) The Commissioner disagrees. (See JS 12-21, 23-25, 31-33, 36-37.)
A.

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The ALJ Did Not Err In Concluding That Plaintiff’s Impairments

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Did Not Meet Or Medically Equal The Severity Of A Listed

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Impairment

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Plaintiff argues that the ALJ erred in discounting the report of treating

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psychologist Larisa Levin, M.D., and failed to consider the combined effect of all

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impairments when determining that Plaintiff’s impairments did not meet a listing.3

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(JS 6-9, 12, 22-23.)
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The ALJ Properly Discounted Dr. Levin’s Opinion

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Plaintiff contends that the ALJ improperly disregarded the opinions of Dr.

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Levin, whose opinion would have established that Plaintiff’s mental impairments

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met the criteria for a listed impairment. (JS 8.) The Commissioner contends that

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the ALJ provided “multiple valid, well-supported reasons” for discounting Dr.

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Levin’s opinion. (JS 17-21.)
a. Applicable Legal Standards

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Courts give varying degrees of deference to medical opinions based on the

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provider: (1) treating physicians who examine and treat; (2) examining physicians

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who examine, but do not treat; and (3) non-examining physicians who do not

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examine or treat. Valentine v. Comm’r, Soc. Sec. Admin., 574 F.3d 685, 692 (9th

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Cir. 2009). Most often, the opinion of a treating physician is given greater weight

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In Issues 1 and 2, Plaintiff also argues that the ALJ erred in concluding that
Plaintiff’s mental impairments had improved, erred in not considering the effects of
Plaintiff’s medications on his functional abilities, and erred in assessing Plaintiff’s
work capacity. (JS 5, 9-10.) These arguments relate to later steps of the ALJ’s
eight-step evaluation process and will be addressed in those sections.
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than the opinion of a non-treating physician, and the opinion of an examining

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physician is given greater weight than the opinion of a non-examining physician.

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See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). The ALJ must provide

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“clear and convincing” reasons to reject the ultimate conclusions of a treating

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physician. Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir.1988). However, an ALJ

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need not accept a treating physician’s opinion that is “brief and conclusionary in

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form with little in the way of clinical findings to support [its] conclusion.”

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Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting Young v.

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Heckler, 803 F.2d 963, 968 (9th Cir. 1986)). When a treating physician’s opinion

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is contradicted by another opinion, the ALJ may reject it only by providing specific

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and legitimate reasons supported by substantial evidence in the record. Orn, 495

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F.3d at 633; Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). “An ALJ can

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satisfy the ‘substantial evidence’ requirement by ‘setting out a detailed and

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thorough summary of the facts and conflicting evidence, stating his interpretation

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thereof, and making findings.’” Garrison, 759 F.3d at 1012 (citation omitted).

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b. Discussion

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Dr. Levin completed a Report on Individual with Mental Impairment and a

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Mental RFC Assessment on May 21, 2014. (AR 467-71.) The report indicates that

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March 14, 2014 is the period of treatment and date of last exam. (AR 467.) Dr.

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Levin stated that Plaintiff always appeared “disheveled with poor grooming,” and

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“always looks down.” (Id.) Dr. Levin noted that Plaintiff had difficulty getting out

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of bed daily due to “markedly severe depression.” (AR 467, 469.) Checking off

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items from a list, Dr. Levin indicated that Plaintiff had the following impairments:

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hallucinations; paranoid thinking; blunt affect; flat affect; depression; anhedonia or

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pervasive loss of interest in almost all activities; appetite disturbance with change in

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weight; sleep disturbance; emotional withdrawal and/or isolation; psychomotor

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agitation or retardation; decreased energy; feeling of guilt or worthlessness;

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difficulty concentrating or thinking; thoughts of suicide; memory impairment;
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apprehensive expectation; vigilance and scanning; a persistent irrational fear of a

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specific object, activity, or situation which results in a compelling desire to avoid

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the dreaded object, activity, or situation; recurrent severe panic attacks manifested

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by a sudden unpredictable onset of intense apprehension, fear, terror, and a sense of

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impending doom occurring on the average of at least once a week; and persistent

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disturbance of mood or affect. (AR 467-68.) Dr. Levin also indicated that there

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was evidence of Plaintiff’s disorientation to time and place, memory impairment,

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and perceptual or thinking disturbances (hallucinations or delusions). (AR 469.) In

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the two-page, checklist-style Mental RFC Assessment, Dr. Levin indicated that

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Plaintiff was “markedly limited” in all 21 listed abilities. (AR 470-71.)

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The ALJ gave Dr. Levin’s opinion “no significant weight,” noting that it is

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“not supported by the longitudinal record” or other progress notes from the same

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treating facility. (AR 19-20; see AR 492-93.) Specifically, the ALJ noted that in

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February 2013, Plaintiff reported to his physician that he had “depression in past

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(mild now).” (AR 20, 422.) The treatment records also state that Plaintiff “used to

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see a psych & was on WellButrin – but stopped.” (AR 422.) The ALJ noted that

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Plaintiff began seeking treatment at Hollywood Mental Health in November 2013

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“after his benefits ceased and at his representative’s referral.” (AR 20; see AR 475,

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482.) Prior to that, Plaintiff stated that he had begun treatment at Didi Hirsch, but

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he did not continue because the facility wanted to admit him for a three-day

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evaluation. (AR 20, 497.) The ALJ noted that this was inconsistent with Didi

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Hirsch’s summary in the record. (AR 20.) Didi Hirsch reported that Plaintiff had

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participated in individual therapy to increase problem solving and coping skills to

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reduce symptoms of depression. (AR 20, 508.) His last session was on September

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16, 2013; Plaintiff’s case was closed when he failed to show up to his next session

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two weeks later and did not respond to outreach attempts. (AR 20, 508.)

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The ALJ found that Dr. Levin’s report was “brief and conclusory” because

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her notations “fail to relate her opinion to either objective findings or specific
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clinical observations.” (AR 20.) The ALJ rejected Dr. Levin’s opinion because it

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was not supported by clinical findings and the checklist-style report did not explain

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the bases for her conclusions. (Id.) This is a specific and legitimate reason for the

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ALJ to discount Dr. Levin’s opinion and instead give more weight to the

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consultative examiner, who “provided a much better explanation of her opinion”

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(id.).

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physician’s opinion that is brief, conclusory, and lacks clinical findings); Crane v.

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Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (“The ALJ, however, permissibly rejected

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[psychological evaluations] because they were check-off reports that did not

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See Magallanes, 881 F.2d at 751 (an ALJ may disregard a treating

contain any explanation of the bases of their conclusions.”).

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The ALJ also discounted Dr. Levin’s opinion because it was founded on

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unreliable claims. (AR 20.) The ALJ noted that Dr. Levin appeared to rely on

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Plaintiff’s own allegations, and the ALJ had found that Plaintiff was not a fully

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credible witness.4 (AR 20; see AR 21.) An opinion that is based on a claimant’s

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discredited subjective complaints may be rejected. See Tommasetti v. Astrue, 533

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F.3d 1035, 1041 (9th Cir. 2008); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th

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Cir. 2001); Morgan v. Comm’r Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999);

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Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989). Furthermore, the ALJ noted that

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the severe limitations that Dr. Levin indicated would have been regularly reflected

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in other treatment notes. (AR 20.) The ALJ found that Dr. Levin’s report “lacks

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neutrality and reliability” and instead “appears to be advocating for the claimant to

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receive benefits.” (AR 20.) Accordingly, the ALJ was permitted to reject Dr.

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Levin’s opinion. See Saelee v. Chater, 94 F.3d 520, 523 (9th Cir. 1996) (rejecting a

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Plaintiff does not challenge the ALJ’s adverse credibility finding, and thus that
issue is not before this Court. See Guith v. Berryhill, No. 1:16-CV-00625 GSA,
2017 WL 4038105, at *8 (E.D. Cal. Sept. 13, 2017) (citing Carmickle v.
Commissioner, 533 F.3d 1155, 1161 n.2 (9th Cir. 2008)) (“Plaintiff has not
contested the ALJ’s credibility determination and therefore, he has waived that
argument.”).
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physician’s opinion that lacked an objective medical basis and instead appeared to

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advocate for a patient based on the patient’s subjective allegations).

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The Court finds that the ALJ provided specific and legitimate reasons,

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supported by substantial evidence in the record, for giving Dr. Levin’s opinion no

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significant weight.

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2.

The ALJ Properly Assessed Plaintiff’s Impairments

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Plaintiff contends that the ALJ failed to properly consider Plaintiff’s

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impairments in the “step two” analysis. (See JS 5, 12, 22-23.) The Commissioner

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contends that the ALJ properly considered whether Plaintiff’s impairments met or

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equaled a listed impairment. (See JS 24.)

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a. Applicable Legal Standards

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At step two, an ALJ must determine whether a claimant has an impairment or

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combination of impairments that meet or medically equal the severity of an

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impairment listed in 20 CFR Part 404, Subpart P, Appendix 1.

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404.1594(f)(2). Listed impairments are “designed to operate as a presumption of

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disability that makes further inquiry unnecessary.” Sullivan v. Zebley, 493 U.S.

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521, 532, 110 S. Ct. 885, 892, 107 L. Ed. 2d 967 (1990). To show that a claimant’s

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impairment meets a listing, the claimant must meet all of the specified medical

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criteria for that listing.

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combination of impairments is equivalent to a listing, a claimant must provide

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medical evidence that is equal in severity to all criteria for the most similar listed

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impairment. Id. at 531 & n.10. When determining equivalency, it is irrelevant

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whether symptoms arise from a single impairment or from a combination of

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impairments; the inquiry is “whether these impairments taken together result in

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limitations equal in severity to those specified by the listings.” Lester, 81 F.3d at

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829-30 (emphasis in original).

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Id. at 530.

20 CFR

To show that an unlisted impairment or

An ALJ “must evaluate the relevant evidence before concluding that a
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claimant’s impairments do not meet or equal a listed impairment,” Lewis v. Apfel,

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236 F.3d 503, 512 (9th Cir. 2001), but it is not necessary to “state why a claimant

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failed to satisfy every different section of the listing of impairments,” Gonzalez v.

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Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990). “An ALJ is not required to discuss

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the combined effects of a claimant’s impairments or compare them to any listing in

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an equivalency determination, unless the claimant presents evidence in an effort to

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establish equivalence.” Burch, 400 F.3d at 683 (citing Lewis, 236 F.3d at 514); see

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Tobin v. Astrue, No. C 10-02937 SI, 2011 WL 3739537, at *11 (N.D. Cal. Aug. 23,

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2011) (“Ninth Circuit authority does not require an ALJ to cobble together an

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equivalency analysis unless the argument is posed to her.” (citing Burch, 400 F.3d

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at 682-83)).
b. Discussion

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The ALJ found that Plaintiff’s impairments “[c]onsidered individually and in

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combination” did not meet or medically equal a listed impairment as of April 11,

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2013. (AR 17.) The ALJ noted that no medical source suggested that Plaintiff’s

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impairments were severe enough to meet or equal a listing, and the ALJ did not find

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medical evidence to support a finding of such severity. (AR 17-18.) In making this

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determination, the ALJ considered Listing 1.04 for disorders of the spine and

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Listing 12.04 for affective disorders. (AR 18.) The ALJ also noted that “the

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severity of the depressive disorder with anxiety on which the award of benefits was

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made is no longer present” and that Plaintiff no longer met the criteria for Listing

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12.04. (AR 18.)

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Plaintiff argues that Dr. Levin’s opinion “supports that [Plaintiff] would still

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meet the criteria for depression and anxiety.” (JS 12.) However, as previously

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discussed, the ALJ correctly gave Dr. Levin’s opinion “no significant weight.”

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(AR 19.) Plaintiff also argues that the ALJ failed to consider the combined effect

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of Plaintiff’s physical and mental impairments, including pain, but he does not

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suggest how.

(See JS 22-23.)

Although a combination of impairments may
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collectively result in limitations that equal the severity of a listed impairment, see

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Lester, 81 F.3d at 829-30, the ALJ did consider Plaintiff’s impairments “in

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combination” and found that they collectively did not satisfy the criteria for

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Listings 1.04 or 12.04. (AR 17-18.) Plaintiff does not provide any explanation as

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to how his combined impairments medically equal another listing.

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Accordingly, the ALJ did not err in determining that Plaintiff’s impairments

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did not meet or medically equal a listed impairment.

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3739537, at *10 (ALJ did not err by failing to explain his finding that a claimant’s

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impairments did not meet or equal a listing when the claimant did not present

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evidence to establish equivalence).

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B.

See Tobin, 2011 WL

The ALJ Correctly Determined That Plaintiff Has Had Medical
Improvement Related To The Ability To Work

Plaintiff argues that the ALJ erred in finding that Plaintiff’s condition had
improved to the point that he would be able to work. (See JS 5, 12.)
1.

Applicable Legal Standards

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At step three, an ALJ must determine whether there has been medical

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improvement. 20 CFR § 404.1594(f)(3). Medical improvement is any decrease in

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the medical severity of the impairments that were present at the time of the most

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recent favorable disability decision. 20 CFR § 404.1594(b)(1). In making this

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comparison, the ALJ must examine both the current medical evidence and the

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medical evidence from the time of the CPD.

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(“Medical improvement is . . . determined by a comparison of prior and current

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medical evidence . . . .”); Newmiller v. Colvin, No. EDCV 15-0139 FFM, 2016 WL

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3034670, at *3 (C.D. Cal. May 27, 2016) (“[D]istrict courts within the Ninth

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Circuit have found error where an ALJ fails to sufficiently examine evidence of

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disability that existed at the time of the CPD.”).

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See 20 CFR § 404.1594(c)(1)

At step four, after finding that a claimant has had medical improvement, an
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ALJ must determine whether that improvement is related to the ability to work. 20

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CFR § 404.1594(f)(4). If a claimant’s impairments no longer meet or equal the

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same listing upon which the original disability determination was based, the

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improvement is conclusively established to be related to the ability to work. 20

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CFR § 404.1594(c)(3)(i).

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2.

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Discussion

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The ALJ found that, based on the medical evidence, there had been a

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decrease in the medical severity of Plaintiff’s impairments that were present at the

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CPD. (AR 18.) The ALJ noted that at the CPD, Plaintiff’s mental impairment met

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the criteria for Listing 12.04 A and B “with marked limitations in maintaining

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concentration, persistence, pace and social functioning.” (AR 18.) Plaintiff was

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being treated by a psychiatrist, Thomas Curtis, M.D., and received psychotherapy,

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biofeedback, and psychotropic medications. (AR 18; see AR 357.) Plaintiff was

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withdrawn and anhedonic, and he had feelings of worthlessness and diminished

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self-esteem. (AR 18, 378-79.) Dr. Curtis observed that Plaintiff required assistance

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with daily chores, cooking, cleaning, and shopping, and he had decreased interest in

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personal grooming and hygiene. (AR 18, 379.) Dr. Curtis also indicated that

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Plaintiff had difficulty understanding simple written and oral instructions. (AR 18,

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380.)

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Regarding the recent evidence, the ALJ noted that psychiatrist Mary Bridges,

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M.D. completed a complete psychiatric evaluation of Plaintiff on March 7, 2013.

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(AR 18, 409.) In that examination, Plaintiff reported that, about six years earlier, he

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had seen a psychiatrist for about six months. (AR 411.) He was no longer seeing a

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psychiatrist at the time of the evaluation. (Id.) The ALJ noted that Dr. Bridges’s

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exam “showed largely normal mental status and little in the way of objective

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psychological abnormality.” (AR 18; see AR 413.) In October 2012, a doctor from

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the East Valley Community Health Center described Plaintiff as being oriented to
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time, place, person, and situation with normal insight and judgment. (AR 18, 390.)

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Plaintiff also demonstrated the appropriate mood and affect. (AR 390.) Treatment

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records from All for Health in February 2013 report that Plaintiff described his

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depression as in the past and “mild now.” (AR 422.) The ALJ consequently

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concluded that Plaintiff “has had significant medical improvement as of April 11,

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2013.” (AR 18.)

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The ALJ then noted that “medical improvement is established as a matter of

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law” because Plaintiff’s impairments “no longer met or medically equaled the same

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listing that was met at the time of the CPD.” (AR 18.)

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The Court finds that the ALJ’s determination that medical improvement had

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occurred is supported by the evidence. See Hunt v. Astrue, 295 F. App’x 878, 879

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(9th Cir. 2008) (affirming a finding of medical improvement when the claimant did

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not consult a physician regarding her impairments for six years, and subsequent

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treatment was “far less frequent and extensive” than her treatment prior to the

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CPD).

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equaled the same listing that was used to find Plaintiff disabled at the CPD,

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Plaintiff’s medical improvement was therefore related to his ability to work. See 20

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CFR § 404.1594(c)(3)(i).

Because the ALJ found that Plaintiff’s impairments no longer met or

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C.

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Plaintiff contends that the ALJ erred in formulating the RFC without

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considering Plaintiff’s depression, anxiety, side effects from medication, and back

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pain. (JS 25.)

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The RFC Is Supported By Substantial Evidence

1.

Applicable Legal Standard

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The ALJ is responsible for assessing a claimant’s RFC “based on all of the

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relevant medical and other evidence.” 20 CFR § 404.1545(a)(3), 404.1546(c); see

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Robbins, 466 F.3d at 883 (citing Soc. Sec. Ruling 96-8p (July 2, 1996), 1996 WL

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374184, at *5). In doing so, the ALJ may consider any statements provided by
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medical sources, including statements that are not based on formal medical

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examinations.

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determination of a claimant’s RFC must be affirmed “if the ALJ applied the proper

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legal standard and his decision is supported by substantial evidence.” Bayliss v.

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Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005); accord Morgan, 169 F.3d at 599.

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2.

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See 20 CFR § 404.1513(a), 404.1545(a)(3).

An ALJ’s

Discussion

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In determining Plaintiff’s RFC, the ALJ “considered all symptoms and the

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extent to which these symptoms can reasonably be accepted as consistent with the

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objective medical evidence and other evidence . . . [and] also considered opinion

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evidence” in accordance with social security regulations. (AR 19.)

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The ALJ “primarily” based his RFC assessment on the disability hearing

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officer’s decision, which also determined that Plaintiff was capable of similar

15

limitations. (AR 19, 84-85.) The ALJ found that this report was consistent with the

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opinions of state agency doctors and consultative examiners. (AR 19; see AR 429-

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66.) Those opinions indicated that Plaintiff was capable of “at least less-than-light

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work” (AR 447) and was able to understand, remember, and carry out simple work-

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related tasks with no significant limitations in the ability to sustain concentration,

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persistence, or pace; relate to others; or otherwise adapt to the requirements of the

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normal workplace (AR 431, 461). The ALJ was permitted to rely upon these

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reports in assessing Plaintiff’s RFC. See Magallanes, 881 F.2d at 752 (“[T]he

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reports of consultative physicians called in by the Secretary may serve as

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substantial evidence.”).

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Reviewing the medical records, the ALJ found that the minimal treatment

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records “reflect essentially normal findings with a good response to medications.”

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(AR 19.)

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malalignment of the lumbrosacral spine. (AR 408.) Plaintiff had a broad-based

A March 31, 2013 MRI revealed no evidence of acute fracture or

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central disc protrusion at the L4-L5 level with posterior annular tear and associated

2

mild central canal stenosis, but no neural foraminal narrowing.

3

consultative examination on March 12, 2013, Plaintiff’s cervical spine was tender

4

to palpation and lumbar spine was tender to percussion. (AR 416-17.) Plaintiff’s

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forward flexion was limited to 50 degrees, and straight leg raise caused pain in the

6

right paravertebral muscles of the lumbar spine. (AR 417). Regarding Plaintiff’s

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umbilical hernia, records show mild tenderness to palpation and pain caused by

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heavy lifting. (AR 415.)

(Id.)

At a

10

Plaintiff argues that the ALJ improperly disregarded his testimony about

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medication side effects, including nausea and drowsiness, and failed to consider

12

those side effects in the RFC assessment. (JS 9-10, 22, 25, 30-31.) Specifically,

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Plaintiff argues that the ALJ “disregarded [Plaintiff]’s testimony as to the negative

14

effect of his medications” (JS 9), “erred in failing to properly consider the effects of

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[Plaintiff]’s numerous medications” on his functional abilities (JS 10), “failed to

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properly evaluate . . . the effects of his medications” (JS 22), “failed to consider . . .

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the sedating effects of his medications” (JS 25), and must consider the effects of

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drug therapy (JS 30-31). Plaintiff testified that his muscle relaxant makes him

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“drowsy and sleepy and foggy” and his antidepressant and antianxiety medications

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caused nausea and occasional dizzy spells. (AR 39, 42-43.) However, the ALJ

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gave Plaintiff’s subjective allegations “little weight” after finding that Plaintiff’s

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testimony about his symptoms was not credible.5 (AR 21.) The ALJ additionally

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25
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27
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The ALJ noted that Plaintiff’s “statements concerning the intensity, persistence
and limiting effects of these symptoms are not credible to the extent they are
inconsistent with the residual functional capacity assessment.” (AR 21.) Although
the use of this boilerplate language is not itself reversible error, “it inverts the
responsibility of an ALJ, which is first to determine the medical impairments of a
claimant based on the record and the claimant’s credible symptom testimony and
only then to determine the claimant’s RFC.” Trevizo v. Berryhill, 871 F.3d 664,
679 n.6 (9th Cir. 2017). Here, the ALJ proceeded to discuss the evidence, and he
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noted that Plaintiff denied having side effects during a December 2013 follow-up

2

evaluation where Plaintiff sought medication refills. (AR 21, 493.) After finding

3

Plaintiff’s testimony not credible, the ALJ did not subsequently err in omitting

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limitations based on that discredited testimony. See Stenberg v. Comm’r Soc. Sec.

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Admin., 303 F. App’x 550, 552 (9th Cir. 2008) (after an ALJ found a claimant not

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credible, “he was not required to include limitations that she claimed in reliance

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solely on her subjective reports of pain”); Peralez v. Astrue, No. ED CV 09-01342-

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VBK, 2010 WL 582058, at *1-2 (C.D. Cal. Feb. 11, 2010) (finding no error when

9

an ALJ failed to make findings related to a claimant’s complaints about medication

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side effects in light of an unchallenged adverse credibility determination).

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As previously discussed, the ALJ also permissibly excluded the severe

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mental limitations posed by Dr. Levin’s opinion. (AR 19-20.) See Batson v.

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Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (“The ALJ was

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not required to incorporate evidence from the opinions of [the claimant]’s treating

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physicians, which were permissibly discounted.”).

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Plaintiff argues that the ALJ erred in finding that Plaintiff could perform “a

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reduced range of light work” because “[t]here is no such thing as a ‘reduced range

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of light work’” and “[a] level of work must be in the category of exertion

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presented.” (JS 27-28.) Although an ALJ may use the “well-defined function-by-

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function parameters” set forth in 20 CFR 404.1567, the ALJ may modify those

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standard limitations to account for a claimant’s individual abilities. See Buckner-

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Larkin v. Astrue, 450 F. App’x 626, 627-28 (9th Cir. 2011) (finding that an ALJ

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properly set forth an RFC defined as “sedentary” that also included a sit-stand

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option and noted that the claimant’s concentration, persistence, and pace would be

25

limited). Here, the ALJ did not stop his assessment after categorizing Plaintiff’s

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27
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provided specific reasons and findings for his adverse credibility determination.
(See AR 21.) Accordingly, the Court does not find error in the use of this language.
Cf. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014).
16

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functional capacity as being able to perform a “reduced range of light work.” The

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ALJ proceeded to make findings on each of Plaintiff’s functional limitations and

3

abilities, thereby noting the differences between a standard full range of light work

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and Plaintiff’s actual functional abilities. (See AR 19.)

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Plaintiff also contends that, based on the ALJ’s hypothetical questions, the

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VE defined Plaintiff’s work level as “sedentary.” (JS 28.) In response to the ALJ’s

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hypothetical, the VE gave examples of “sedentary, unskilled work” that could be

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completed by someone with Plaintiff’s limitations. (AR 51-52.) However, the

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VE’s response does not indicate the ALJ erred in formulating the RFC or finding

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that Plaintiff could perform “a reduced range of light work.” The VE “merely

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translates factual scenarios into realistic job market probabilities,” and it is solely

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the ALJ’s role to assess the evidence and the validity of medical opinions. Sample

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v. Schweiker, 694 F.2d 639, 643-44 (9th Cir. 1982).

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The Court finds that, based on the record as a whole, the ALJ’s RFC
assessment is supported by substantial evidence.
D.

The ALJ Properly Determined That Plaintiff Could Perform A
Significant Number Of Jobs

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Plaintiff contends that the ALJ erred in relying on answers to a hypothetical

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that excluded some of Plaintiff’s mental limitations and the effects of medications.

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(JS 33.)

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1.

Applicable Legal Standard

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If a claimant shows that he or she cannot perform past relevant work, it is the

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Commissioner’s burden to establish that, considering the RFC, the claimant can

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perform other work. Embrey, 849 F.2d at 422. To make this showing, the ALJ

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may rely on the testimony of a vocational expert. Tackett v. Apfel, 180 F.3d 1094,

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1099 (9th Cir. 1999). The ALJ may pose hypothetical questions to the VE to

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establish (1) what jobs, if any, the claimant can do, and (2) the availability of those

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jobs in the national economy. Id. at 1101. These hypotheticals must depict the
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1

claimant’s disability in a manner that is “accurate, detailed, and supported by the

2

medical record” and “set[s] out all of the claimant’s impairments.” Id. (citing

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Gamer v. Secretary of Health and Human Servs., 815 F.2d 1275, 1279-80 (9th Cir.

4

1987)). The VE’s testimony “is valuable only to the extent that it is supported by

5

medical evidence.” Sample, 694 F.2d at 644. “If a vocational expert’s hypothetical

6

does not reflect all the claimant’s limitations, then the expert’s testimony has no

7

evidentiary value to support a finding that the claimant can perform jobs in the

8

national

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economy.” Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012) (quoting Matthews

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v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993)).

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2.

Discussion

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At the hearing, the ALJ posed the following hypothetical to the VE:

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I would like you to consider a hypothetical individual ranging in age
from . . . roughly 33 to 40 some who has a high school education and
work experience as you described. I would like you to assume that
this individual is limited to a range of light to sedentary work as
follows. Can lift and/or carry 20 pounds occasionally and 10 pounds
frequently; walk, is able to walk and/or stand for four hours of an
eight-hour work day, sit for six hours of an eight-hour work day, both
with normal breaks; is limited to occasional walking over uneven
terrain, climbing ladders, and working at heights. Otherwise is able to
frequently climb ramps, stairs, balance, kneel, and crawl. I will add
occasionally stoop also. Furthermore, the individual would be limited
to understanding, remembering, and carrying out simple, repetitive
tasks.

23

(AR 51.) The VE testified that a person with those limitations could not perform

24

Plaintiff’s past work as a sales attendant, stock clerk, or orderly. (Id.) The VE then

25

indicated that a person with those restrictions “could do a full range of sedentary,

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unskilled work.” (AR 51-52.) The VE identified product inspector, hand cutter,

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and product assembler as representative jobs. (AR 52.) The ALJ then added a

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limitation of “no more than occasional public contact,” but the VE testified that the

2

additional limitation did not affect his response. (Id.)

3

Plaintiff contends that the hypothetical is deficient because it fails to reflect

4

all of Plaintiff’s mental limitations. (JS 34.) Plaintiff also notes that when his

5

attorney posed a hypothetical that included marked limitations in “ability to

6

understand, remember very short and simple instructions and carry out very short

7

and simple instructions,” the VE stated that those limitations would change his

8

earlier opinion. (JS 34; see AR 53-54.) However, “[t]he ALJ is not bound to

9

accept as true the restrictions presented in a hypothetical question propounded by a

10

claimant’s counsel.” Magallanes, 881 F.2d at 756 (citing Martinez v. Heckler, 807

11

F.2d 771, 773 (9th Cir. 1986)). When a claimant’s counsel poses a hypothetical

12

that is more restrictive than the ALJ’s hypothetical, the ALJ is “free to accept or

13

reject those restrictions” based on the ALJ’s evaluation of the evidence. Martinez,

14

807 F.2d at 774.

15

omitted the additional limitations presented by Plaintiff’s counsel—is supported by

16

substantial evidence. The ALJ posed a hypothetical containing limitations that

17

were identical to the limitations found in Plaintiff’s RFC.

18

limitations in the hypothetical are also supported by substantial evidence.

As discussed above, the ALJ’s RFC determination—which

Consequently, the

19

By posing a hypothetical that was supported by substantial evidence, the ALJ

20

did not err in excluding additional restrictions. See Stubbs-Danielson v. Astrue, 539

21

F.3d 1169, 1175-76 (9th Cir. 2008) (finding that, because the ALJ’s RFC

22

assessment was proper and complete, the ALJ’s hypothetical based on the RFC was

23

also proper and complete); Sample, 694 F.2d at 644 (“[T]he limitation of evidence

24

contained in the hypothetical at issue would be objectionable only if the assumed

25

facts could not be supported by the record.”). Accordingly, the ALJ properly relied

26

on the VE’s testimony to determine that Plaintiff was capable of performing other

27

work. See Bayliss, 427 F.3d at 1217 (finding that an ALJ properly relied on a VE’s

28

testimony in response to a hypothetical that “contained all of the limitations that the
19

1

ALJ found credible and supported by substantial evidence in the record”);

2

Sampson v. Astrue, 441 F. App’x 545, 547 (9th Cir. 2011) (“Because the ALJ’s

3

hypothetical to the [VE] encompassed the RFC and the VE identified available jobs

4

in the national and local economy, the ALJ’s finding of no disability was supported

5

by substantial evidence.”).

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V.

CONCLUSION
IT IS ORDERED that Judgment shall be entered AFFIRMING the decision

of the Commissioner denying benefits.
IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this
Order and the Judgment on counsel for both parties.

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DATED: November 20, 2017
ROZELLA A. OLIVER
UNITED STATES MAGISTRATE JUDGE

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NOTICE

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

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