Clark Allen Fox v. Carolyn W. Colvin

Filing 26

DECISION AND ORDER by Magistrate Judge Victor E Bianchini. (See Order for details.) IT IS THEREFORE ORDERED that: Judgment be entered AFFIRMING the Commissioner's decision; and The Clerk of the Court shall file this Decision and Order, serve copies upon counsel for the parties, and CLOSE this case. (wr)

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O 1 2 3 4 UNITED STATES DISTRICT COURT 5 CENTRAL DISTRICT OF CALIFORNIA 6 Case No. 5:16-CV-01328 (VEB) 7 CLARK ALLEN FOX, 8 DECISION AND ORDER Plaintiff, 9 vs. 10 11 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 12 Defendant. 13 I. INTRODUCTION 14 In January of 2013, Plaintiff Clark Allen Fox applied for Disability Insurance 15 16 17 18 benefits and Supplemental Security Income benefits under the Social Security Act. The Commissioner of Social Security denied the applications.1 Plaintiff, represented 1  On January 23, 2017, Nancy Berryhill took office as Acting Social Security Commissioner. The 19 Clerk of the Court is directed to substitute Acting Commissioner Berryhill as the named defendant in this matter pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure.  20 1 DECISION AND ORDER – FOX v BERRYHILL 5:16-CV-01328-VEB 1 by the Law Offices of Bill LaTour, Esq., Shaza Quadi, Esq., of counsel, commenced 2 this action seeking judicial review of the Commissioner’s denial of benefits pursuant 3 to 42 U.S.C. §§ 405 (g) and 1383 (c)(3). 4 The parties consented to the jurisdiction of a United States Magistrate Judge. 5 (Docket No. 10,12, 25). On June 6, 2017, this case was referred to the undersigned 6 pursuant to General Order 05-07. (Docket No. 24). 7 8 II. BACKGROUND 9 Plaintiff applied for benefits on January 22, 2013, alleging disability 10 beginning December 31, 2009, due to various physical impairments. (T at 14).2 The 11 applications were denied initially and on reconsideration. 12 hearing before an Administrative Law Judge (“ALJ”). On January 14, 2015, a 13 hearing was held before ALJ Nancy Stewart. (T at 24). Plaintiff appeared with his 14 attorney and testified. (T at 28-47). The ALJ also received testimony from Scott 15 Troy, a vocational expert (T at 48-53). 16 17 Plaintiff requested a On January 27, 2012, the ALJ issued a written decision denying the applications for benefits. (T at 9-23). The ALJ’s decision became the 18 19 20 2  Citations to (“T”) refer to the administrative record at Docket No. 16. 2 DECISION AND ORDER – FOX v BERRYHILL 5:16-CV-01328-VEB 1 Commissioner’s final decision on June 7, 2016, when the Appeals Council denied 2 Plaintiff’s request for review. (T at 1-4). 3 On June 22, 2016, Plaintiff, acting by and through his counsel, filed this 4 action seeking judicial review of the Commissioner’s decision. (Docket No. 1). The 5 Commissioner interposed an Answer on November 16, 2016. (Docket No. 15). 6 Plaintiff filed a supporting memorandum of law on December 23, 2016. (Docket No. 7 18). The Commissioner filed an opposing memorandum on February 17, 2017. 8 (Docket No. 23). 9 After reviewing the pleadings, memoranda of law, and administrative record, 10 this Court finds that the Commissioner’s decision should be affirmed and this case 11 must be dismissed. 12 13 14 III. DISCUSSION A. Sequential Evaluation Process 15 The Social Security Act (“the Act”) defines disability as the “inability to 16 engage in any substantial gainful activity by reason of any medically determinable 17 physical or mental impairment which can be expected to result in death or which has 18 lasted or can be expected to last for a continuous period of not less than twelve 19 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a 20 3 DECISION AND ORDER – FOX v BERRYHILL 5:16-CV-01328-VEB 1 claimant shall be determined to be under a disability only if any impairments are of 2 such severity that he or she is not only unable to do previous work but cannot, 3 considering his or her age, education and work experiences, engage in any other 4 substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 5 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and 6 vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 7 The Commissioner has established a five-step sequential evaluation process 8 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step 9 one determines if the person is engaged in substantial gainful activities. If so, 10 benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the 11 decision maker proceeds to step two, which determines whether the claimant has a 12 medically severe impairment or combination of impairments. 20 C.F.R. §§ 13 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 14 If the claimant does not have a severe impairment or combination of 15 impairments, the disability claim is denied. If the impairment is severe, the 16 evaluation proceeds to the third step, which compares the claimant’s impairment(s) 17 with a number of listed impairments acknowledged by the Commissioner to be so 18 severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 19 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or 20 4 DECISION AND ORDER – FOX v BERRYHILL 5:16-CV-01328-VEB 1 equals one of the listed impairments, the claimant is conclusively presumed to be 2 disabled. If the impairment is not one conclusively presumed to be disabling, the 3 evaluation proceeds to the fourth step, which determines whether the impairment 4 prevents the claimant from performing work which was performed in the past. If the 5 claimant is able to perform previous work, he or she is deemed not disabled. 20 6 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, the claimant’s residual 7 functional capacity (RFC) is considered. If the claimant cannot perform past relevant 8 work, the fifth and final step in the process determines whether he or she is able to 9 perform other work in the national economy in view of his or her residual functional 10 capacity, age, education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 11 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987). 12 The initial burden of proof rests upon the claimant to establish a prima facie 13 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 14 Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden 15 is met once the claimant establishes that a mental or physical impairment prevents 16 the performance of previous work. The burden then shifts, at step five, to the 17 Commissioner to show that (1) plaintiff can perform other substantial gainful 18 activity and (2) a “significant number of jobs exist in the national economy” that the 19 claimant can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 20 5 DECISION AND ORDER – FOX v BERRYHILL 5:16-CV-01328-VEB 1 B. Standard of Review 2 Congress has provided a limited scope of judicial review of a Commissioner’s 3 decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner’s decision, 4 made through an ALJ, when the determination is not based on legal error and is 5 supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 6 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). 7 “The [Commissioner’s] determination that a plaintiff is not disabled will be 8 upheld if the findings of fact are supported by substantial evidence.” Delgado v. 9 Heckler, 722 F.2d 570, 572 (9th Cir. 1983)(citing 42 U.S.C. § 405(g)). Substantial 10 evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 11 n 10 (9th Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d 12 599, 601-02 (9th Cir. 1989). Substantial evidence “means such evidence as a 13 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 14 Perales, 402 U.S. 389, 401 (1971)(citations omitted). “[S]uch inferences and 15 conclusions as the [Commissioner] may reasonably draw from the evidence” will 16 also be upheld. Mark v. Celebreeze, 348 F.2d 289, 293 (9th Cir. 1965). On review, 17 the Court considers the record as a whole, not just the evidence supporting the 18 decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 19 1989)(quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 1980)). 20 6 DECISION AND ORDER – FOX v BERRYHILL 5:16-CV-01328-VEB 1 It is the role of the Commissioner, not this Court, to resolve conflicts in 2 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational 3 interpretation, the Court may not substitute its judgment for that of the 4 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th 5 Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be 6 set aside if the proper legal standards were not applied in weighing the evidence and 7 making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 8 432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the 9 administrative findings, or if there is conflicting evidence that will support a finding 10 of either disability or non-disability, the finding of the Commissioner is conclusive. 11 Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 12 C. Commissioner’s Decision 13 The ALJ determined that Plaintiff had not engaged in substantial gainful 14 activity since December 31, 2009 (the alleged onset date) and met the insured status 15 requirements of the Social Security Act through December 31, 2014 (the date last 16 insured). (T at 14). The ALJ found that Plaintiff’s spinal disorder, degenerative disc 17 disease with compression fracture of L1, Lyme’s disease, hypertension, chronic 18 obstructive pulmonary disorder with continued tobacco dependence, inflammatory 19 20 7 DECISION AND ORDER – FOX v BERRYHILL 5:16-CV-01328-VEB 1 arthritis, and multiple fractures secondary to a motor vehicle accident were “severe” 2 impairments under the Act. (T at 14). 3 However, the ALJ concluded that Plaintiff did not have an impairment or 4 combination of impairments that met or medically equaled one of the impairments 5 set forth in the Listings. (T at 14). 6 The ALJ determined that Plaintiff retained the residual functional capacity 7 (“RFC”) to perform sedentary work as defined in 20 CFR § 416.967 (a), with the 8 following limitations: he can lift/carry 10 pounds frequently and push/pull within 9 this limitation; he cannot utilize foot pedals with his left lower extremity and can 10 only occasionally push/pull with the left upper extremity; he can stand/walk for 2 11 hours in an 8-hour period, with no prolonged walking greater than 15 minutes at a 12 time; he can sit for 6 hours in an 8-hour workday (provided he can stand and stretch 13 not more than 10% of the day); he cannot work with ladders, ropes, or scaffolds; he 14 cannot kneel or crawl; he must avoid exposure to respiratory irritants and workplace 15 hazards; he cannot perform jobs that required reading or writing as a primary part of 16 the job; and he is limited to non-complex, routine tasks, with no fast-paced work. (T 17 at 15). 18 The ALJ found that Plaintiff could not perform his past relevant work as a 19 painter. (T at 18). However, considering Plaintiff’s age (41 on the alleged onset 20 8 DECISION AND ORDER – FOX v BERRYHILL 5:16-CV-01328-VEB 1 date), education (at least high school), work experience, and residual functional 2 capacity, the ALJ determined that there were jobs that exist in significant numbers in 3 the national economy that Plaintiff can perform. (T at 18). 4 As such, the ALJ found that Plaintiff was not entitled to benefits under the 5 Social Security Act from December 31, 2009 (the alleged onset date) through 6 February 9, 2015 (the date of the ALJ’s decision). (T at 19). As noted above, the 7 ALJ’s decision became the Commissioner’s final decision when the Appeals 8 Council denied Plaintiff’s request for review. (T at 1-4). 9 D. Disputed Issues Plaintiff offers three (3) main arguments in support of his claim that the 10 11 Commissioner’s decision should be reversed. 12 Listings analysis was flawed. 13 properly analyze the medical opinion evidence. 14 ALJ’s step five analysis. This Court will address each argument in turn. 15 16 First, he argues that the ALJ’s Second, Plaintiff contends that the ALJ did not Third, Plaintiff challenges the IV. ANALYSIS A. Listings Analysis 17 At step three of the sequential evaluation, the ALJ must determine whether the 18 claimant has an impairment or combination of impairments that meets or equals an 19 impairment listed in Appendix 1 of the Regulations (the “Listings”). See 20 C.F.R. 20 9 DECISION AND ORDER – FOX v BERRYHILL 5:16-CV-01328-VEB 1 §§ 404.1520(d), 416.920(d). If a claimant meets or equals a listed impairment, he or 2 she is “conclusively presumed to be disabled and entitled to benefits.” Bowen v. City 3 of New York, 476 U.S. 467, 471, 106 S. Ct. 2022, 90 L. Ed. 2d 462 (1986); see also 4 Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993); see also 20 C.F.R. §§ 5 404.1525(a); 416.925(a). 6 An impairment meets a Listing if the impairment matches all of the medical 7 criteria specified in the Listing. Sullivan v. Zebley, 493 U.S. 521, 530, 110 S. Ct. 8 885, 107 L. Ed. 2d 967 (1990); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 9 1999). An impairment or combination of impairments that satisfies some, but not all 10 of the criteria, does not qualify. Sullivan, 493 U.S. at 530; Tackett, 180 F.3d at 1099. 11 The claimant bears the burden of proving that she has an impairment or 12 combination of impairments that meets or equals the criteria of a listed impairment. 13 To satisfy this burden, the claimant must offer medical findings equal in severity to 14 all requirements, which findings must be supported by medically acceptable clinical 15 and laboratory diagnostic techniques. 20 C.F.R. § 416.926(b). 16 If a claimant’s impairment does not satisfy the Listings criteria, he or she may 17 still be disabled if the impairment “equals” a listed impairment. 20 C.F.R. § 18 404.1520(d). Equivalence will be found if the medical findings are (at a minimum) 19 equal in severity and duration to the Listed impairment. Marcia v. Sullivan, 900 F.2d 20 10 DECISION AND ORDER – FOX v BERRYHILL 5:16-CV-01328-VEB 1 172, 175 (9th Cir. 1990). To determine medical equivalence, the Commissioner 2 compares the findings concerning the alleged impairment with the medical criteria of 3 the listed impairment. 20 C.F.R. §§ 416.924(e), 416.926. 4 If a claimant has multiple impairments, the ALJ must determine “whether the 5 combination of [the] impairments is medically equal to any listed impairment.” 20 6 C.F.R. § 404.1526(a). The claimant’s symptoms “must be considered in combination 7 and must not be fragmentized in evaluating their effects.” Lester v. Chater, 81 F.3d 8 821, 829 (9th Cir. 1996). “A finding of equivalence must be based on medical 9 evidence only.” See Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001)(citing 20 10 C.F.R. § 1529(d)(3)). 11 “[I]n determining whether a claimant equals a listing under step three . . . the 12 ALJ must explain adequately his evaluation of alternative tests and the combined 13 effects of the impairments.” Marcia, 900 F.2d at 176 (9th Cir. 1990). A remand may 14 be required if ALJ fails adequately to consider a Listing that plausibly applies to the 15 claimant’s case. See Lewis, 236 F.3d at 514. 16 In the present case, the ALJ concluded that Plaintiff did not have an 17 impairment or combination of impairments that met or medically equaled one of the 18 impairments set forth in the Listings. (T at 14). The ALJ stated that she had 19 20 11 DECISION AND ORDER – FOX v BERRYHILL 5:16-CV-01328-VEB 1 considered, in particular, Listings §1.04 (Disorders of the Spine) and §14.09 2 (Inflammatory Arthritis). (T at 15). 3 Plaintiff argues that the ALJ failed to properly consider Listing § 1.04. That 4 impairment requires the presence of a spinal disorder “resulting in compromise of a 5 nerve root (including the cauda equina) or the spinal cord,” along with other factors 6 outlined in subsections A, B, and C in §1.04. 7 However, while Plaintiff cites evidence that his impairment has some of the 8 aspects identified in the various subsections of §1.04, he cites no evidence of 9 compromise of a nerve root (including the cauda equina) or the spinal cord. Indeed, 10 the medical imaging is to the contrary. (T at 322, 339, 347). 11 As further support for the ALJ’s determination, the State Agency review 12 physicians found no evidence of a Listing level impairment. (T at 59-69, 71-81, 84- 13 95, 97-108). 14 psychological consultants and other program physicians, psychologists, and other 15 medical specialists are highly qualified physicians, psychologists, and other medical 16 specialists who are also experts in Social Security disability evaluation.”). See 20 CFR § 404.1527 (f)(2)(i)(“State agency medical and 17 Dr. David Easley, a consultative orthopedic examiner, noted that Plaintiff had 18 good muscle strength, negative straight leg raising test, and normal gait. (T at 327- 19 20 12 DECISION AND ORDER – FOX v BERRYHILL 5:16-CV-01328-VEB 1 329). He opined that Plaintiff could stand/walk for 6 hours in an 8-hour workday 2 and sit for 6 hours in an 8-hour workday. (T at 330). 3 In light of the foregoing, this Court finds no error in the ALJ’s conclusion that 4 Plaintiff did not have an impairment or combination of impairments that met or 5 medically equaled one of the impairments set forth in the Listings, including 6 Listings §1.04. (T at 14). 7 B. Medical Opinion Evidence 8 In disability proceedings, a treating physician’s opinion carries more weight 9 than an examining physician’s opinion, and an examining physician’s opinion is 10 given more weight than that of a non-examining physician. Benecke v. Barnhart, 11 379 F.3d 587, 592 (9th Cir. 2004); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 12 1995). If the treating or examining physician’s opinions are not contradicted, they 13 can be rejected only with clear and convincing reasons. Lester, 81 F.3d at 830. If 14 contradicted, the opinion can only be rejected for “specific” and “legitimate” reasons 15 that are supported by substantial evidence in the record. Andrews v. Shalala, 53 F.3d 16 1035, 1043 (9th Cir. 1995). Historically, the courts have recognized conflicting 17 medical evidence, and/or the absence of regular medical treatment during the alleged 18 period of disability, and/or the lack of medical support for doctors’ reports based 19 substantially on a claimant’s subjective complaints of pain, as specific, legitimate 20 13 DECISION AND ORDER – FOX v BERRYHILL 5:16-CV-01328-VEB 1 reasons for disregarding a treating or examining physician’s opinion. Flaten v. 2 Secretary of Health and Human Servs., 44 F.3d 1453, 1463-64 (9th Cir. 1995). 3 An ALJ satisfies the “substantial evidence” requirement by “setting out a 4 detailed and thorough summary of the facts and conflicting clinical evidence, stating 5 his interpretation thereof, and making findings.” Garrison v. Colvin, 759 F.3d 995, 6 1012 (9th Cir. 2014)(quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). 7 “The ALJ must do more than state conclusions. He must set forth his own 8 interpretations and explain why they, rather than the doctors,’ are correct.” Id. 9 In this case, as referenced above, Dr. David Easley, an orthopedic surgeon, 10 performed a consultative examination in May of 2013. Dr. Easley opined that 11 Plaintiff could perform work at a light exertional level, with some postural and 12 environmental limitations. (T at 325-330). The ALJ gave “significant weight” to Dr. 13 Easley’s findings when rendering her decision. (T at 17). 14 Dr. Easley’s assessment included a finding that Plaintiff was “unable to walk 15 on uneven terrain.” (T at 330). The ALJ, while incorporating numerous postural and 16 environmental limitations into the RFC, did not include this particular limitation and 17 did not explain its absence, even though she had given “substantial weight” to Dr. 18 Easley’s assessment. (T at 15). 19 20 14 DECISION AND ORDER – FOX v BERRYHILL 5:16-CV-01328-VEB 1 This was error, as the ALJ was obliged to address this aspect of the 2 consultative examiner’s opinion. However, this Court finds the error harmless. 3 Even if one assumes that Plaintiff is unable to walk on uneven terrain, he still would 4 not meet the requirements of Listing §1.04 due to the absence of evidence of nerve 5 root or spinal cord compromise, as discussed above. 6 Further, the ALJ concluded, based on the vocational expert’s testimony, that 7 Plaintiff retained the RFC to perform three representative occupations, bench 8 assembler, information clerk, and charge account clerk. (T at 19). All of these 9 positions are at the sedentary work level. Plaintiff offers no evidence or argument to 10 suggest that an inability to walk on uneven terrain would preclude a person from 11 performing any of these three positions. See Delavera v. Astrue, No. CV 12-06138, 12 2013 U.S. Dist. LEXIS 24031, at *3-4 (Cal. C.D. Feb. 20, 2013)(affirming ALJ’s 13 conclusion that claimant retained the RFC to perform sedentary work even with 14 limitation precluding walking on uneven terrain). 15 Finally, it is well-settled that an inability to walk on uneven terrain is a limited 16 finding that does not imply an overall inability to “ambulate effectively,” as that 17 term is defined in the Social Security Regulations. See Perez v. Astrue, 831 F. Supp. 18 2d 1168, 1176 (C.D. Cal. 2011) (holding that inability to walk on uneven terrain did 19 not establish an inability to ambulate effectively). 20 15 DECISION AND ORDER – FOX v BERRYHILL 5:16-CV-01328-VEB 1 An ALJ’s error may be deemed harmless if, in light of the other reasons 2 supporting the overall finding, it can be concluded that the error did not “affect[ ] the 3 ALJ's conclusion.” Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th 4 Cir. 2004); see also Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1054-55 (9th 5 Cir. 2006) (describing the harmless error test as whether “the ALJ's error did not 6 materially impact his decision”); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 7 (9th Cir.2006) (holding that an error is harmless if it was “inconsequential to the 8 ultimate nondisability determination”). 9 Here, while this Court certainly does not condone the ALJ’s omission of the 10 “uneven terrain” finding from her analysis, that error was harmless and does not 11 warrant a remand for the reasons outlined above. 12 C. Step Five Analysis 13 At step five of the sequential evaluation, the burden is on the Commissioner to 14 show that (1) the claimant can perform other substantial gainful activity and (2) a 15 “significant number of jobs exist in the national economy” which the claimant can 16 perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). If a claimant cannot 17 return to his previous job, the Commissioner must identify specific jobs existing in 18 substantial numbers in the national economy that the claimant can perform. See 19 Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir.1995). 20 16 DECISION AND ORDER – FOX v BERRYHILL 5:16-CV-01328-VEB 1 The Commissioner may carry this burden by “eliciting the testimony of a 2 vocational expert in response to a hypothetical that sets out all the limitations and 3 restrictions of the claimant.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.1995). 4 The ALJ's depiction of the claimant's disability must be accurate, detailed, and 5 supported by the medical record. Gamer v. Secretary of Health and Human Servs., 6 815 F.2d 1275, 1279 (9th Cir.1987). “If the assumptions in the hypothetical are not 7 supported by the record, the opinion of the vocational expert that claimant has a 8 residual working capacity has no evidentiary value.” Gallant v. Heckler, 753 F.2d 9 1450, 1456 (9th Cir. 1984). 10 Here, the ALJ relied on the vocational expert’s testimony to support her step 11 five findings that Plaintiff retained the RFC to perform three representative, 12 sedentary jobs that exist in significant numbers in the national economy. (T at 19). 13 Plaintiff notes, correctly, that the ALJ did not include the “uneven terrain” limitation 14 in the hypothetical presented to the vocational expert. (T at 49-52). This was error. 15 The ALJ was obliged to either reject that limitation, and explain why by reference to 16 substantial evidence, or accept the limitation and include it in the hypothetical. 17 However, this was harmless error for the reasons outlined above. Plaintiff 18 offers no evidence or argument that including the uneven terrain limitation would 19 have changed the vocational expert’s testimony. Indeed, a review of the Dictionary 20 17 DECISION AND ORDER – FOX v BERRYHILL 5:16-CV-01328-VEB 1 of Occupational Titles (“DOT”) descriptions for each of the positions identified by 2 the vocational expert (and accepted by the ALJ) finds no indication of any 3 requirement to ambulate on uneven terrain as part of these sedentary jobs, which are 4 performed in an office environment.3 As such, this Court finds no reversible error as 5 to this aspect of the ALJ’s decision. 6 7 V. CONCLUSION 8 After carefully reviewing the administrative record, this Court finds 9 substantial evidence supports the Commissioner’s decision, including the objective 10 medical evidence and supported medical opinions. It is clear that the ALJ thoroughly 11 examined the record, afforded appropriate weight to the medical evidence, including 12 the assessments of the examining medical providers and the non-examining 13 consultants, and afforded the subjective claims of symptoms and limitations an 14 appropriate weight when rendering a decision that Plaintiff is not disabled. This 15 Court 16 Commissioner’s decision. finds no reversible error and substantial evidence supports the 17 3 18 19 20  The Social Security Administration has taken administrative notice of the Dictionary of Occupational Titles, which is published by the Department of Labor and gives detailed physical requirements for a variety of jobs.” Massachi v. Astrue, 486 F.3d 1149, 1152 n. 8 (9th Cir. 2007)(citing 20 C.F.R. § 416.966(d)(1)). 18 DECISION AND ORDER – FOX v BERRYHILL 5:16-CV-01328-VEB 1 VI. ORDERS 2 IT IS THEREFORE ORDERED that: 3 Judgment be entered AFFIRMING the Commissioner’s decision; and 4 The Clerk of the Court shall file this Decision and Order, serve copies upon 5 6 counsel for the parties, and CLOSE this case. DATED this 14th day of November 2017, 7 8 /s/Victor E. Bianchini VICTOR E. BIANCHINI UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 19 DECISION AND ORDER – FOX v BERRYHILL 5:16-CV-01328-VEB

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