Janine Rose Jones v. Carolyn W. Colvin

Filing 29

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

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UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

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11

) No. CV 13-1213-AS
)
)
Plaintiff,
) MEMORANDUM OPINION
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of the
)
Social Security Administration, )
)
Defendant.
)
)
JANINE R. JONES,

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18

PROCEEDINGS

19
20
21

On July 19, 2013, Plaintiff filed a Complaint, pursuant to 42

22

U.S.C.

§§ 405(g)

and

1383(c),

alleging

that

the

Social

Security

23

Administration erred in denying her disability benefits.

(Docket

24

Entry No. 3.)

25

Complaint and the Certified Administrative Record (“A.R.”).

26

Entry No. 22.)

27

States Magistrate Judge.

28

18, 2013, Plaintiff filed a Brief in support of her Complaint (“Pl.’s

On October 18, 2013, Defendant filed an Answer to the
(Docket

The parties have consented to proceed before a United
(Docket Entry Nos. 14, 15.)

1

On November

1

Br.”).

(Docket Entry No. 24.)

On December 2, 2013, Defendant filed

2

a Brief in support of its Answer (“Def.’s Br.”).

3

2013, Plaintiff filed a Notice of Non-Opposition, stating that she

4

did not intend to file a reply to Defendant’s Brief.

5

taken the action under submission without oral argument.

6

Local R. 7—15; “Order re Procedures in Social Security Case.”

On December 7,

The Court has
See C.D.

7

THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS

8
9

“Social Security disability benefits claimants have the burden

10
11

of proving disability.”

12

F.3d 1380, 1380 (9th Cir. 1985).

A claimant is disabled if he has

13

the

substantial

14

reason

15

impairment...which

16

continuous

17

§

18

disabled, the Administrative Law Judge (“ALJ”) follows a five-step

19

process set forth in 20 C.F.R. § 404.1520(a)(4).

20

the burden of proving steps one through four.”

21

F.3d 742, 746 (9th Cir. 2007).

“inability
of

to

any

engage

in

any

medically

determinable

has

period

423(d)(1)(A).

Bellamy v. Sec’y Health & Human Serv., 755

or

of
In

lasted
not

less

order

to

can
than

physical

be

expected

12

determine

gainful

to

months.”
whether

a

activity

by

or

mental

last

for

42

a

U.S.C.

claimant

is

“The claimant bears
Parra v. Astrue, 481

22
23

At step one, the ALJ must determine whether or not the claimant

24

is actually engaged in any “substantial gainful activity,” as defined

25

by

26

evaluation continues to step two.

20

C.F.R.

§

404.1572.

If

claimant

is

not

so

engaged,

the

See 20 C.F.R. § 404.1520(a)(4)(i).

27
28
2

At step two, the ALJ determines whether the claimed physical or

1
2

mental impairments are severe.

3

determining severity, “the ALJ must consider the combined effect of

4

all

5

function,

without

6

severe.”

Smolen

7

(citing 42 U.S.C § 423(d)(2)(B)).

8

unless the evidence “establishes a slight abnormality that has ‘no

9

more than a minimal effect on an individual’s ability to work.’”

of

the

1290

claimant’s

impairments

regard
v.

(quoting

20 C.F.R. § 404.1520(a)(4)(ii).

to

whether

Chater,

80

F.3d

each

or]

alone

1273,

her
was

ability

1290

to

sufficiently

(9th

Cir.

1996)

Impairments are considered severe

11

1988)).

12

medically severe impairment, the ALJ proceeds to the next step in the

13

sequence.”

14

20 C.F.R. § 404.1520(a)(4)(ii).

ALJ

Bowen,

concludes

841

that

F.2d
the

303,

306

claimant

(9th

Id.

at

the

v.

[his

10

“[I]f

Yuckert

on

When

does

Cir.

have

a

Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005); See

15
16

At step three, the ALJ considers whether the claimant’s severe

17

impairments are disabling.

18

claimant is considered disabled if his purported conditions meet or

19

are medically equivalent to a listing found in 20 C.F.R. Part 404,

20

Subpart P, Appendix 1.

21

Cir. 2005).

22

impairment in appendix 1 if it is at least equal in severity and

23

duration

24

404.1526.

25

rather

26

regarding “functional problems.”

27

1100 (9th Cir. 1999) (citing 20 C.F.R. § 404.1526).

to

20 C.F.R. § 404.1520(a)(4)(iii).

The

Burch v. Barnhart, 400 F.3d 676, 679 (9th

“[An] impairment is medically equivalent to a listed

the

criteria

of

any

listed

impairment.”

20

C.F.R.

“Medical equivalence must be based on medical findings[]”

than

“[a]

generalized

assertion”

or

opinion

testimony

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

28
3

1

If the ALJ concludes that the claimant is not disabled at step

2

three, the ALJ moves to step four and considers whether the claimant

3

can return to his past relevant work.

4

C.F.R. § 404.1520(a)(4)(iv).

5

claimant’s

6

§ 404.1520(a)(4)(iv).

7

do

8

relevant medical and other evidence in [the] case record.”

9

416.945(a)(1).

Residual

despite

Burch, 400 F.3d at 679; See 20

In order to do so, the ALJ determines

Functional

Capacity

(“RFC”).

20

C.F.R.

A claimant’s RFC is “what [claimant] can still

[claimant’s]

limitations,”

and

is

“based

on

all

the

20 C.F.R.

If the claimant’s RFC dictates that he can return to

10

his past relevant work, he is not considered disabled.

11

Burch, 400

F.3d at 679.

12

If the claimant proves in step four that he cannot return to his

13
14

past

relevant

15

§ 404.1520(a)(4)(v).

16

Secretary to show that the claimant can do other kinds of work.”

17

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

18

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

19

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

20

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

21

180 F.3d at 1101.

22

any

23

§ 404.1520(a)(4)(v).

available

work,

the

ALJ

proceeds

to

step

five.

20

C.F.R.

At step five “the burden of proof shifts to the

At this point,

Tackett,

If the claimant does not have the RFC to work in

jobs,

he

is

considered

disabled.

20

C.F.R.

24
25

BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

26
27

Plaintiff Janine R. Jones (“Plaintiff”), a former hairdresser,

28

asserts disability beginning June 19, 2008, based on the following
4

1

alleged physical and mental impairments: anxiety and pain in both

2

arms.

3

from Plaintiff at the hearing on January 31, 2012.

4

Plaintiff testified that she suffers from pain in her left back,

5

neck, shoulders, left arm, and left knee.

(A.R. 147.)

The ALJ examined the record and heard testimony
(A.R. 45—47.)

(A.R. 45—47.)

6
7

The ALJ applied the five-step evaluation process to determine

8

whether Plaintiff was disabled.

(A.R. 12-13.)

9

determined

not

10

that

Plaintiff

gainful activity.”

was

engaged

At step one, the ALJ
in

any

“substantially

(A.R. 13.)

11
12

At step two, the ALJ found that Plaintiff suffers from the

13

following

medically

14

degenerative joint disease of the cervical spine with neuropathy.

15

(Id.)

16

impairments of depression and anxiety were nonsevere because they did

17

not cause more than minimal limitations in her ability to perform

18

basic work activities.

The

ALJ

determinable

concluded

that

impairments:

Plaintiff’s

medically

obesity

and

determinable

(A.R. 14.)

19
20

At

step

three,

the

ALJ

determined

that

Plaintiff’s

severe

21

impairments did not meet or equal a medical listing found in 20

22

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

(A.R. 14.)

23
24
25

Before proceeding to step four, the ALJ found that Plaintiff had
the RFC to perform light work with the following limitations:

26
27
28

occasionally climb ramps/stairs, stoop, kneel, balance,
crouch,
and
crawl;
no
climbing
ladders,
ropes,
or
scaffolds;
frequent
handling
and
fingering;
avoid
5

concentrated exposure to hazardous heights and dangerous
machinery; frequent overhead reaching and reaching in
front; able to understand, remember, and carry out detailed
tasks;
no
limitation
interacting
with
the
public,
coworkers, and supervisors; avoid concentrated exposure to
cold and heat; frequent near and far visual acuity; and
frequent accommodation visually.

1
2
3
4
5
6

(A.R. 15.)

The ALJ based the RFC finding in part on the opinion of

7

medical

8

Plaintiff’s medical records and testified at the hearing as a medical

9

expert.

expert

Samuel

(A.R. 23.)
had

Landau,

M.D.

(“Dr.

Landau”),

who

reviewed

Dr. Landau opined that Plaintiff was morbidly

10

obese,

degenerative

11

possible

12

peripheral neuropathy.

13

records did not prove carpal tunnel, but it was a possible diagnosis.

14

(A.R. 33.)

15

tested positive for an antinuclear antibody test (ANA), she did not

16

fulfill the criteria for a lupus diagnosis.

carpal

tunnel

disc

disease

syndrome

in

(A.R. 33.)

and

arthritis

the

upper

of

the

extremities,

neck,
and

Dr. Landau noted that the medical

Additionally, Dr. Landau found that although Plaintiff

(A.R. 34.)

17

Upon

18

review

of

the

record,

the

ALJ

found

that

Plaintiff’s

19

medically determinable impairments could reasonably be expected to

20

cause the alleged symptoms.

21

that Plaintiff’s statements “concerning the intensity, persistence,

22

and limiting effects of these symptoms” were not credible.

23

15.)

(A.R. 15.)

However, the ALJ also found

(A.R.

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25

At step four, the ALJ determined that Plaintiff was able to

26

perform her past relevant work as a cosmetologist.

27

ALJ made this determination after comparing Plaintiff’s RFC with the

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6

(A.R. 18.)

The

1

requirements of her past relevant work, and hearing testimony from a

2

vocational expert.

(A.R. 18.)

3

Alternatively,

4

the

ALJ

found

that,

in

addition

to

her

past

5

relevant work, Plaintiff was also able to perform other jobs existing

6

in

7

“electronic

worker,”

8

operator.”

(A.R. 19.)

significant

numbers
a

in

the

national

“ticket

taker,”

economy,
or

a

such

“packing

as

an

machine

9

Accordingly, the ALJ found that Plaintiff was not disabled under

10
11

42 U.S.C. § 423(d)(1)(A).

(Id.)

12

STANDARD OF REVIEW

13
14
15

This court reviews the Administration’s decision to determine

16

if: (1) the Administration’s findings are supported by substantial

17

evidence; and (2) the Administration used proper legal standards.

18

Smolen,

19

scintilla, but less than a preponderance.”

20

F.3d 1035, 1039 (9th Cir. 1995).

21

evidence supports a finding, “a court must consider [] the record as

22

a

23

detracts from the [Commissioner’s] conclusion.”

24

157 F.3d 715, 720 (9th Cir. 1998).

25

reasonably

26

conclusion, [a] court may not substitute its judgment for that of the

27

ALJ.”

28

Cir. 2004).

80

whole,

F.3d

at

weighing

support

1279.

both

“Substantial

is

more

than

a

Andrews v. Shalala, 53

To determine whether substantial

evidence

either

evidence

that

supports

and

evidence

that

Reddick v. Chater,

As a result, “[i]f evidence can

affirming

or

reversing

the

ALJ’s

Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th

7

PLAINTIFF’S CONTENTIONS

1
2
3

Plaintiff contends that the ALJ: (1) erred in rejecting carpal

4

tunnel syndrome as a severe impairment in step two; (2) improperly

5

rejected

6

Plaintiff’s

7

credibility; and (4) erred in relying on the VE’s testimony because

8

it purportedly conflicts with the Dictionary of Occupational Titles.

9

(Pl.’s Br.

the

medical
RFC;

(3)

expert’s
erred

testimony

in

her

in

her

assessment

assessment
of

of

Plaintiff’s

1—10.)

10

DISCUSSION

11
12

After consideration of the record as a whole, the Court finds

13
14

that

the

Commissioner’s

findings

are

supported

15

by

substantial

evidence and are free from material 1 legal error.

16
17

A.

Any Err in the ALJ’s Finding at Step Two Was Harmless

18
19

Plaintiff asserts that the ALJ erred at step two in finding

20

Plaintiff to have severe impairments only of obesity and degenerative

21

joint disease of the cervical spine with neuropathy.

(Pl.’s Br. 3.)

22
23
24
25
26
27

1

The
harmless
error
rule
applies
to
the
review
of
administrative decisions regarding disability. See McLeod v. Astrue,
640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d
676, 679 (9th Cir. 2005) (stating that an ALJ’s decision will not be
reversed for errors that are harmless).

28
8

1

Plaintiff maintains that she also has an additional severe impairment

2

of bilateral carpal tunnel syndrome. 2

(Id.)

3
4

At step two, a claimant must make a threshold showing that her

5

medically determinable impairments significantly limit her ability to

6

perform basic work activities.

7

145

8

activities” refers to “the abilities and aptitudes necessary to do

9

most jobs.”

(1987);

20

C.F.R.

§§

See Bowen v. Yuckert, 482 U.S. 137,

404.1520(c),

416.920(c).

20 C.F.R. §§ 404.1521(b), 416.921(b).

“Basic

work

“An impairment or

10

combination of impairments can be found ‘not severe’ only if the

11

evidence establishes a slight abnormality that has ‘no more than a

12

minimal effect on an individual’s ability to work.’”

13

at 1290 (quoting Social Security Ruling (SSR) 85–28).

14

two inquiry is a de minimis screening device to dispose of groundless

15

claims.”

16

must be based upon medical evidence.

17

416.920(a)(ii).

18

enough to establish a medically determinable impairment.

19

C.F.R. §§ 404.1508, 416.908.

Id. (citing Bowen, 482 U.S. at 153–54).

Smolen, 80 F.3d
“[T]he step

Step two findings

20 C.F.R. §§ 404.l509(a)(ii);

A claimant’s own statement of symptoms alone is not
See 20

20

The Ninth Circuit has held that when the ALJ has resolved Step

21
22

Two

23

impairments

24

Barnhart, 400 F.3d 676, 682 (9th Cir. 2005) (concluding that any

25

error committed by the ALJ in step two was harmless because the step

26
27
28

in

a

claimant’s
as

severe

favor,
does

any

not

error

prejudice

2

in
a

designating
claimant.

specific
Burch

v.

Plaintiff also asserts that she suffers from degenerative
joint disease of the lumbar spine. (Pl.’s Br. 3.) However, because
Plaintiff does not cite any medical evidence in support of this
alleged impairment, the Court declines to consider it.
9

1

was resolved in Plaintiff’s favor); Rilling v. Astrue, No. CV 10-4601

2

JCG, 2011 WL 1630771, at *5 (C.D. Cal. Apr. 29, 2011).

3

ALJ found that Plaintiff had severe impairments, including obesity

4

and degenerative joint disease of the cervical spine with neuropathy,

5

the Court concludes that any error by the ALJ in failing to identify

6

as severe Plaintiff’s alleged impairment of carpal tunnel syndrome is

7

harmless.

Because the

8

B.

9

The ALJ’s Assessment of Plaintiff’s RFC is Supported By
Substantial Evidence

10
11

Plaintiff contends that the ALJ’s assessment of Plaintiff’s RFC

12
13

was

not

supported

14

particular, Plaintiff alleges that the ALJ improperly rejected the

15

medical

16

forceful gripping, grasping, or twisting,” and that Plaintiff would

17

be limited to standing and walking to only 2 hours out of 8.

18

Br. 5.)

expert’s

by

substantial

testimony

that

evidence.

Plaintiff

(Pl.’s

could

Br.

5.)

engage

in

In

“no

(Pl.’s

19
20

In evaluating medical opinions, the case law and regulations

21

distinguish among the opinions of three types of physicians:

22

those who treat the claimant (treating physicians); (2) those who

23

examine but do not treat the claimant (examining physicians); and (3)

24

those who neither examine nor treat the claimant (nonexamining or

25

reviewing physicians).

26

416.927; see also Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).

27

Generally,

28

weight than those of other physicians, because treating physicians

the

(1)

See 20 C.F.R. §§ 404.1502, 404.1527, 416.902,

opinions

of

treating

10

physicians

are

given

greater

1

are employed to cure and therefore have a greater opportunity to know

2

and observe the claimant.

3

2007); Smolen, 80 F.3d at 1285.

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

4

When

5

a

treating

or

examining

doctor’s

opinion

is

not

6

contradicted by some evidence in the record, it may be rejected only

7

for “clear and convincing reasons.”

8

533 F.3d 1155, 1164 (9th Cir. 2008) (quoting Lester, 81 F.3d at 830-

9

31).

See Carmickle v. Commissioner,

Where, as here, a treating physician’s opinion is controverted

10

by other evidence, the ALJ must provide “specific and legitimate

11

reasons” supported by substantial evidence to properly reject it.

12

Lester, 81 F.3d at 830-31 (citing Andrews v. Shalala, 53 F.3d 1035,

13

1043 (9th Cir. 1995)); see also Orn, 495 F.3d at 632-33; Soc. Sec.

14

Ruling 96-2p.

15

Plaintiff saw treating physician, Dr. M. Ahluwalia, from 2006 to

16
17

2009

for

generalized

pain.

(A.R.

36.)

Dr.

Ahluwalia

referred

18

Plaintiff to Dr. Purnima Thakran for a neurology consult.

19

272.)

20

study of Plaintiff’s upper extremities, which revealed the following

21

diagnoses: cervical radiculopathy affecting the left C7 nerve root,

22

bilateral

23

polyneuropathy.

24

medical

25

records.

26

consider opinions from medical experts on the nature and severity of

27

your

28

functional limitations included “no forceful gripping, grasping, or

(A.R.

On March 2, 2010, Dr. Thakran conducted an electrodiagnostic

carpal

expert

tunnel
(A.R.

Dr.

syndrome,

275—78.)

Landau

to

At

and
the

testify

underlying

hearing,

about

the

distal

ALJ

Plaintiff’s

asked

medical

See 20 C.F.R. §§ 404.1527(e) (ALJ “may also ask for and

impairment(s)”).

According

11

to

Dr.

Landau,

Plaintiff’s

1

twisting,” and based this finding on the electrodiagnostic study.

2

(A.R. 35, 39.)

3
4

Plaintiff contends that the limitation “no forceful gripping,

5

grasping, or twisting” should have been included in Plaintiff’s RFC.

6

(Pl. Br. 5.)

7

study

8

electrodiagnostic

9

tunnel syndrome where there is positive and negative . . . people can

However, Dr. Landau testified that an electrodiagnostic

alone

would

carpal

not

study

justify
does

establish

the

13

assessment

14

manipulative limitations because Plaintiff only had possible carpal

15

tunnel syndrome.

16

medical

17

tunnel syndrome to be a severe medically determinable impairment.

18

(A.R. 245—49; 316—18.)

was

too

restrictive

(A.R. 39.)

residual

with

relatively

carpal

12

Landau’s

a

of

electrodiagnostic study and vice versa.”
Dr.

have

diagnosis

“[a]n

11

that

and

a

because,

have

explained

syndrome

diagnosis

10

ALJ

tunnel

not

the

Accordingly,

functional

respect

to

normal

capacity

Plaintiff’s

This opinion was also supported by the agency’s

consultant,

Dr.

Keith

Wahl,

who

did

not

consider

carpal

19
20

The ALJ also rejected Dr. Landau’s testimony that Plaintiff’s

21

functional limitations should include a restriction to standing and

22

walking only 2 hours out of 8.

23

this

24

examinations in January 2012 which produced normal results.

25

16.)

26

and Dr. Mohinder Ahuwalia on January 24, 2012.

27

21.)

28

and numbness in her left toe, the ALJ pointed out that nothing in the

testimony

because

(Pl.’s Br. 5—6.)

Plaintiff

underwent

The ALJ rejected

two

recent

physical
(A.R.

Plaintiff visited Dr. Bikramjit Ahluwalia on January 3, 2012
(A.R. 391—92; 420—

Although Plaintiff complained of pain in her neck and shoulder,

12

1

record indicated Plaintiff’s need for a back brace or cane.

2

(A.R.

17.)

3

Accordingly, the ALJ provided “specific and legitimate” reasons

4
5

supported

by

substantial

evidence

for

rejecting

the

6

testimony regarding Plaintiff’s functional limitations.

7

expert’s

F.3d at 830-31.

Lester, 81

8

C.

9

The

ALJ

Provided

Clear

and

Convincing

Reasons

for

Discounting Plaintiff’s Credibility

10
11

Plaintiff also contends that the ALJ failed to consider her

12
13

subjective complaints and properly assess her credibility.

14

Br.

15

Plaintiff’s credibility only on the basis that her complaints lacked

16

objective medical evidence.

8.)

In

particular,

Plaintiff

claims

that

the

ALJ

(Pl.’s
rejected

17
18

An ALJ’s assessment of a claimant’s credibility and the severity

19

of his or her symptoms is entitled to “great weight.”

20

v. Sullivan, 914 F.2d 1121, 1124 (9th Cir. 1990); Nyman v. Heckler,

21

779 F.2d 528, 531 (9th Cir. 1985).

22

believe

23

benefits would be available for the asking, a result plainly contrary

24

to 42 U.S.C. § 423(d)(5)(A).”

25

(9th Cir. 2012).

every

allegation

of

See Anderson

“[T]he ALJ is not required to

disabling

pain,

or

else

disability

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

26
27
28

In evaluating a claimant’s subjective symptom testimony, the ALJ
engages

in

a

two-step

analysis.
13

Lingenfelter

v.

Astrue,

1

504

F.3d

2

determine

3

evidence of an underlying medical impairment which could reasonably

4

be expected to produce the pain or other symptoms alleged.”

5

at

6

objective

7

claimant’s testimony “simply because there is no showing that the

8

impairment can reasonably produce the degree of symptom alleged.”

9

Smolen, 80 F.3d at 1282 (emphasis in original).

1036

1028,

1035–36

whether

(internal
medical

the

(9th

Cir.

claimant

quotations
evidence

2007).

has

and

exists,

“First,

presented

citation
the

ALJ

the

ALJ

objective

omitted).
may

not

must

medical

If
reject

Id.
such
the

Instead, in finding

10

the claimant’s subjective complaints not credible, the ALJ must make

11

“specific, cogent” findings that support the conclusion.

12

Chater, 81 F.3d 821, 834 (9th Cir. 1995) (quoting Rashad v. Sullivan,

13

903 F.2d 1229, 1231 (9th Cir. 1990)).

14

malingering, the ALJ’s reasons for rejecting the claimant’s testimony

15

must be “clear and convincing.”

Lester v.

Absent affirmative evidence of

Lester, 81 F.3d at 834.

16
17

Objective Medical Evidence

18
19

While a claimant’s testimony regarding her symptoms “cannot be

20

rejected on the sole ground that it is not fully corroborated by

21

objective medical evidence, the medical evidence is still a relevant

22

factor in determining the severity of the claimant’s pain and its

23

disabling effects.”

24

Cir. 2001) (citing 20 C.F.R. § 404.1592(c)(2)); Burch v. Barnhart,

25

400 F.3d 676, 681 (9th Cir. 2005) (“Although lack of medical evidence

26

cannot form the sole basis for discounting pain testimony, it is a

27

factor that the ALJ can consider in his credibility analysis.”).

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

28
14

In addition to relying on the medical expert’s testimony (e.g.,

1
2

regarding

the

3

tunnel syndrome), the ALJ considered Plaintiff’s consultative exam

4

with Dr. Bryan To in connection with a previous application for

5

social security benefits.

6

revealed no true findings of nerve root irritation, negative straight

7

leg

8

painful, but normal range of motion.

9

regard

raise

to

in

electrodiagnostic

the

which

did

not

prove

carpal

During this consult, a back examination

supine

Plaintiff’s

study

and

joint

sitting

pain,

positions

bilaterally,

(A.R. 15; 199.)
Dr.

To

found

no

and

Moreover, in
evidence

of

10

deformity, swelling, or tenderness of the joints, and normal range of

11

motion.

12

only limited to medium work.

(A.R. 15—16; 199.)

Accordingly, Dr. To found Plaintiff was
(A.R. 199—200.)

13
14

Moreover, although Plaintiff reported the need for a back brace

15

and cane, the ALJ concluded that the objective evidence did not

16

support the need for either assistive device.

17

from March 2010 showed degenerative disk and joint disease, which

18

caused only mild central canal stenosis and no significant spinal

19

cord or root compression.

20

Ali Mesiwala performed a surgical consultation and concluded that

21

surgery

22

physical therapy, and testified at the hearing that she takes vicodin

23

for pain.

24

evidence in the record documenting who prescribed Vicodin, for how

25

long, or the indications for prescribing those medications.

26

Higinio v. Colvin, No. EDCV 12-1820 AJW, 2014 WL 47935, at *5 (C.D.

27

Cal. Jan. 7, 2014) (treatment as a whole was conservative despite

28

claimant’s use of narcotic pain medications).

was

unnecessary.

(A.R. 16; 302—304.)

(A.R.

(A.R. 43, 286—296.)

16;

300.)

Plaintiff’s MRI exam

On May 11, 2010, Dr.

Plaintiff

attended

However, Plaintiff has not pointed to

15

See

Daily Activities

1
2

The ALJ also relied in part on Plaintiff’s activities of daily

3
4

living in finding that Plaintiff’s testimony lacked credibility.

5

A claimant’s ability to perform a range of daily activities can

6
7

be used to assess his credibility.

8

416.929(a); Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012)

9

(“[T]he ALJ may discredit a claimant’s testimony when the claimant

10

reports participation in everyday activities indicating capacities

11

that are transferrable to a work setting.”).

12

that a plaintiff has carried on certain daily activities, such as

13

grocery shopping, driving a car, or limited walking for exercise,

14

does not in any way detract from her credibility as to her overall

15

disability.”

16

Cir. 2001).

17

involved

18

workplace.

Vertigan

v.

See 20 C.F.R. §§ 404.1529(a),

Halter,

260

However, “the mere fact

F.3d

1044,

1050

(9th

Instead, the relevant inquiry is whether the skills

in

the

daily

activities

could

be

transferred

to

the

See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005).

19
20

Here, the ALJ pointed out that Plaintiff worked part time “as

21
22

recently as November 2010.”

23

several months out of the year, she worked five to six days a week as

24

a hairdresser, doing braids that required on average eight to nine

25

hours of work.

26

care of other business and check on her daughter in school.

27

61.)

28

activity, the ALJ properly relied on it to show that the Plaintiff

Although

(A.R. 61.)

this

work

(A.R. 16.)

Plaintiff testified that for

On her days off, Plaintiff would take

did

not

16

equate

to

substantial

(A.R.
gainful

1

was engaging in activity inconsistent with her alleged disability.

2

See Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007); see

3

also Helton v. Colvin, No. C13-382-RAJ, 2013 WL 6159313, at *11 (W.D.

4

Wash.

5

plaintiff’s recent work as a call center employee undercut her claims

6

regarding the severity of her impairments and their impact on her

7

ability to work).

Nov.

25,

2013)

(finding

that

the

ALJ

reasonably

concluded

8

Accordingly,

9

the

ALJ

permissibly

evaluated

Plaintiff’s

10

credibility, taking into account the lack of corroborating medical

11

evidence and Plaintiff’s daily activities.

12

ALJ

13

Plaintiff’s credibility.

has

stated

“clear

and

convincing”

The Court finds that the
reasons

for

discounting

14

D.

15

The ALJ Permissibly Relied on Vocational Expert Testimony

16

The ALJ called Troy Scott to testify as a vocational expert.

17
18

(A.R. 62.)

The ALJ then posed a series of hypothetical questions to

19

the VE to determine whether a person with Plaintiff’s limitations

20

could perform her past relevant work as a cosmetologist (Step Four)

21

or alternative work available in the economy (Step Five).

22

71.)

(A.R. 62—

23
24
25

The first hypothetical contained the following limitations at
the light exertional level:

26
27
28

occasional climbing ramps and stairs, stooping, kneeling,
balancing, crouching, and crawling but no climbing ladders,
ropes or scaffolds; frequent handling and fingering;
17

avoidance of concentrated exposure to hazardous heights and
dangerous
machinery;
frequent
overhead
reaching
and
reaching in front; able to understand, remember, and carry
out detailed tasks; no limitations in interacting with the
public,
co-workers,
or
supervisors;
avoidance
of
concentrated exposure to cold and heat; frequent near and
far visual acuity; and frequent accommodation visually.

1
2
3
4
5
6

(A.R. 63.)

7

limitations could not only perform the past work as a cosmetologist,

8

but

9

electronics

10

The VE testified that a hypothetical person with these

various

jobs

available

worker,

ticket

in

the

taker,

national

and

packing

economy,

including

machine

operator.

(A.R. 64—65.)

11
12

The ALJ based his second hypothetical on the medical expert, Dr.

13

Landau’s testimony.

14

The second hypothetical included the following

limitations:

15
16
17
18
19
20
21
22
23

able to stand and/or walk up to two hours in an eight-hour
work day; sit with no limitations; lift and carry 10 pounds
frequently and 20 pounds occasionally; occasionally stoop
and bend; able to climb stairs but cannot climb ladders,
work at heights, or balance; cannot do forceful grasping,
gripping, or twisting; frequent fine manipulation, such as
keyboarding, and gross manipulation, such as opening
drawers and carrying folders; can’t work above shoulder
level on the left side but no limitations on the right;
can’t squat, kneel, crouch, crawl, or jump . . .
occasionally operate foot pedals and controls.
And also
cannot operate motor vehicles, be responsible for the
safety of others, work around heights or around dangerous
machinery and is limited to simple, repetitive tasks.

24
25

(A.R. 64—65.)

26

further limitations would not be able to perform the past work of the

27

Plaintiff as a cosmetologist.

The VE testified that a hypothetical person with these

(A.R. 65.)

28
18

However, the VE also

1

testified that the occupations available in the national economy for

2

the first hypothetical would also apply to the second hypothetical.

3

(A.R. 65.)

4

would still apply with the standing and walking limitation of 2 hours

5

out of 8.

6

although eroded approximately 50% of the parking machine operator

7

positions, which would not be available with that standing/walking

8

limitation.

The ALJ specifically asked the VE whether these jobs

(A.R. 65—66.)

The VE responded in the affirmative,

(A.R. 66.)

9
10

Plaintiff contends that there is a DOT inconsistency in the

11

ALJ’s

finding

12

electronics

worker,

13

(Pl.’s

9.)

14

“testimony

15

inconsistent with the Dictionary of Occupational Titles which lists

16

these occupations as light occupations contemplating the ability to

17

stand and/or walk up to 6 hours out of an 8 hour work day.”

18

Br. 9.)

Br.

on

that

Plaintiff
ticket
In

the

can

taker,

particular,

part

of

the

perform
and

the

packing

Plaintiff
vocational

occupations

machine

maintains
expert

of

operator.
that

is

the

directly

(Pl.’s

19
20

Plaintiff’s contention lacks merit because no material conflict

21

exists

between

the

vocational

expert’s

testimony

and

the

job

22

requirements in the DOT.

23

worker, ticket taker, and packing machine operator as light work.

24

“The full range of light work requires standing and walking, off and

25

on, for a total of approximately 6 hours of an 8-hour workday.”

26

C.F.R. §§ 404.1567(b), 416.967(b); SSR 83-10, 1983 WL 31251, at *6

27

(emphasis added).

28

and/or walking for all jobs classified as light work, it merely

The DOT classifies the jobs of electronics

20

The DOT does not require six hours of standing

19

1

describes the activities that would be required of a person that is

2

able to perform the full range of light work.

3

found

4

walking limitations, did not allow her to perform the full range of

5

light

6

Admin., No. CV 07-30-E-LMB, 2008 WL 754275, at *4 (D. Idaho Mar. 19,

7

2008)

8

functional

9

exertional categories of work.”) (citation omitted).)

that

Plaintiff’s

work.

(A.R.

(“[T]here

14—15;

will

capacity

limitations,

be

will

see

also

instances
not

fit

The ALJ in this case

including

Boster

where

the

v.

a

precisely

standing

Comm’r,

Soc.

claimant’s
within

and

Sec.

residual

one

of

the

10
11

“The DOT lists maximum requirements of occupations as generally

12

performed, not the range of requirements of a particular job as it is

13

performed in specific settings.

14

able to provide more specific information about jobs or occupations

15

than the DOT.”

16

base her testimony on a hypothetical individual that was capable of

17

performing the full range of light work.

18

considered the additional standing/walking limitations provided in

19

the second hypothetical, and eroded the number of jobs available to

20

an individual with those limitations.

A [vocational expert] . . . may be

SSR 00-4P, 2000 WL 1898704, at *3.

The VE did not

On the contrary, the expert

(A.R. 65—66.)

21
22

Moreover, the ALJ asked the VE whether the jobs were consistent

23

with the DOT, and the VE answered in the affirmative.

24

Thus, the ALJ properly relied on the VE’s testimony because the

25

hypothetical presented to the VE considered all of the claimant’s

26

limitations

27

Barnhart, 278 F.3d 947, 956 (9th Cir. 2002) (considering VE testimony

28

reliable

if

that

the

were

supported

hypothetical

by

posed
20

the

record.

includes

all

See

of

(A.R. 67.)

Thomas

v.

claimant’s

1

functional limitations); Bayliss v. Barnhart, 427 F.3d 1211, 1218

2

(9th Cir. 2005) (“A VE’s recognized expertise provides the necessary

3

foundation for his or her testimony.”).

4

ORDER

5
6
7
8

For

all

of

the

foregoing

reasons,

this

Court

affirms

decision of the Administrative Law Judge.

9
10

LET JUDGMENT BE ENTERED ACCORDINGLY.

11
12

Dated: April 1, 2015.

13
14
15
16

_____________/s/______________
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

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25
26
27
28
21

the

NOTICE

1
2
3

Reports and Recommendations are not appealable to the Court of

4

Appeals,

but

may

be

subject

to

the

right

of

any

party

to

file

5

objections as provided in the Local Rules Governing the Duties of

6

Magistrate Judges and review by the District Judge whose initials

7

appear in the docket number.

8

Federal Rules of Appellate Procedure should be filed until entry of

9

the judgment of the District Court.

No notice of appeal pursuant to the

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