Abdulhalim v. Colvin

Filing 20

ORDER by Judge Haywood S. Gilliam, Jr. DENYING PLAINTIFFS 17 MOTION FOR SUMMARY JUDGMENT. (ndrS, COURT STAFF) (Filed on 2/1/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ABDULHALIM SAYYID HANIF EL,
Plaintiff,

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CAROLYN W. COLVIN,

Re: Dkt. No. 17

Defendant.

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United States District Court
Northern District of California

ORDER DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT

v.

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Case No. 15-cv-01481-HSG

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Plaintiff Abdulhalim Sayyid Hanif El seeks judicial review of Defendant Commissioner of

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Social Security’s decision denying his application for disability insurance benefits and

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supplemental security income. Pending before the Court is Plaintiff’s motion for summary

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judgment. For the reasons articulated below, the Court DENIES Plaintiff’s motion.

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I.

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BACKGROUND
Plaintiff is a 44-year-old man. Administrative Record (“AR”) at 20. On December 30,

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2011 and January 12, 2012, Plaintiff filed applications for disability insurance benefits and

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supplemental security income under the Social Security Act, alleging a disability onset date of

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March 15, 2011. Id. at 12. The Social Security Administration (“SSA”) initially denied Plaintiff’s

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applications. Id. Plaintiff requested a hearing before an administrative law judge (“ALJ”), and his

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case was heard by ALJ John Heyer on September 26, 2013. Id.

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ALJ Heyer issued a decision finding that Plaintiff was not disabled on October 25, 2013.

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Id. at 22. The ALJ’s decision became the Commissioner’s final decision when the Appeals

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Council denied Plaintiff’s request for further review on February 9, 2015. Id. at 1. Plaintiff filed

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this action on March 31, 2015, Dkt. No. 1, and moved for summary judgment on August 21, 2015,

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Dkt. No. 17 (“Mot.”). On September 19, 2015, the Commissioner filed an opposition to Plaintiff’s

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motion for summary judgment, Dkt. No. 18 (“Opp.”), and Plaintiff filed a reply brief on

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September 28, 2015, Dkt. No. 19 (“Reply”).

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II.

LEGAL STANDARD

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A.

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The ALJ’s denial of benefits may be disturbed only if it is not supported by substantial

Standard Of Review

evidence or if it is based on the application of improper legal standards. Vertigan v. Halter, 260

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F.3d 1044, 1049 (9th Cir. 2001). Evidence is substantial if it is “more than a mere scintilla but

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less than a preponderance; it is such relevant evidence that a reasonable mind might accept as

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adequate to support a conclusion.” Sandgathe v. Charter, 108 F.3d 978, 980 (9th Cir. 1997). To

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determine whether substantial evidence exists to support the ALJ’s decision, the court examines

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Northern District of California

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the administrative record as a whole and considers evidence both supporting and detracting from

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the decision. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). “Where evidence is

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susceptible to more than one rational interpretation, it is the ALJ’s conclusion that must be

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upheld.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). A court may not reverse the

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ALJ’s decision on the basis of an error that is harmless. Molina v. Astrue, 674 F.3d 1104, 1111

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(9th Cir. 2012).

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B.

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To qualify for disability benefits under the Social Security Act, a claimant must be

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“disabled.” 42 U.S.C. §§ 423(a)(1)(E), 1382(a)(1). The Act defines “disability” as the “inability

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to engage in any substantial gainful activity by reason of any medically determinable physical or

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mental impairment which can be expected to result in death or which has lasted or can be expected

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to last for a continuous period of not less than 12 months.” Id. § 423(d)(1)(A). The claimant

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bears the burden of making out a prima facie case of disability. Thomas v. Barnhart, 278 F.3d

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947, 955 (9th Cir. 2002). However, SSA “has a special duty to fully and fairly develop the record

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and to assure that the claimant’s interests are considered.” Brown v. Heckler, 713 F.2d 441, 443

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(9th Cir. 1983).

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Standard For Determining Disability Benefits

Social Security disability cases are evaluated using a five-step, sequential evaluation
process. 20 C.F.R. § 416.920. First, the ALJ must determine whether the claimant is engaged in
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“substantial gainful activity.” Id. § 416.920(a)(4)(i). A person is involved in “substantial work

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activity” if she engages in work that involves significant physical or mental activities. Id.

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§ 416.972(a). “Gainful work activity” is defined as “work usually done for pay or profit,”

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regardless of whether the claimant actually receives a profit. Id. § 416.972(b). If the claimant is

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engaged in substantial and gainful activity, she is not disabled; otherwise, the evaluation proceeds

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to step two.
At step two, the ALJ must determine whether the claimant has an impairment or

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combination of impairments that is severe. Id. § 416.920(a)(4)(ii). A “severe” impairment is

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defined as one that significantly limits an individual’s ability to perform basic work activities. Id.

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§ 416.920(c). If a claimant does not have a severe impairment, the claimant is not disabled and is

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not entitled to disability benefits, but if the impairment or combination of impairments is severe,

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the evaluation proceeds to step three.
At step three, the ALJ must determine whether the claimant’s impairment or combination

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of impairments meets or medically equals the requirements listed in 20 C.F.R. Part 404, Subpart P,

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App. 1. Id. § 416.920(a)(4)(iii). If the claimant’s condition meets or exceeds the requirements of

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a listed impairment, the claimant is disabled; if not, the analysis proceeds to step four.
At step four, the ALJ must first determine the claimant’s residual functional capacity

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(“RFC”) in view of the claimant’s impairments and the relevant medical and other evidence in the

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record. Id. § 416.920(e). Based on the RFC, the ALJ then determines whether the claimant is able

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to perform the requirements of her “past relevant work.”1 See id. § 416.920(a)(4)(iv), (f). If the

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claimant can still perform work that the individual has done in the past, the claimant is not

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disabled; otherwise, the evaluation proceeds to step five. Id. § 416.920(a)(4)(iv).
At step five, the burden shifts to the Commissioner to demonstrate that the claimant is not

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disabled. Thomas, 278 F.3d at 955. Taking into account a claimant’s age, education, vocational

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background, and RFC, the Commissioner must show that the claimant can perform some work

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“Past relevant work” means substantial gainful activity performed (either as the claimant actually
performed it or as it is generally performed in the national economy) within the last fifteen years
or fifteen years prior to the alleged disability onset date. 20 C.F.R. §§ 404.1560(b), 404.1565,
416.960(b), 416.965.
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that exists in significant numbers in the national economy. 20 C.F.R. §§ 416.920(a)(4)(v),

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416.960(c).

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III.

DISCUSSION

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A. The ALJ’s Decision

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In his October 25, 2013 decision, the ALJ applied the five-step sequential analysis

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articulated above. The ALJ determined at step one that Plaintiff did not engage in substantial

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gainful activity since his alleged disability onset date. AR at 14. At step two, the ALJ found that

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Plaintiff had the “severe impairments” of scoliosis, post-traumatic stress disorder (“PTSD”), and

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depression. Id.

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At step three, the ALJ concluded that Plaintiff’s severe impairments did not meet the

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severity of one of the listed impairments. Id. at 15. As to Plaintiff’s severe physical impairment,

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scoliosis, the ALJ found that “[t]he medical evidence does not establish the requisite evidence of

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nerve root compression, spinal arachnoiditis, or lumbar spinal stenosis as required under listing

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1.04,” and no evidence demonstrated that Plaintiff’s “back disorder has resulted in an inability to

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ambulate effectively.” Id.

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As to Plaintiff’s severe mental impairments, the ALJ considered both the “paragraph B”

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and the “paragraph C” criteria in making his finding that the severity of Plaintiff’s PTSD and

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depression “does not meet or medically equal the criteria of listing 12.04 and 12.06.” Id. For the

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paragraph B criteria, the ALJ found that Plaintiff has “a mild restriction” in activities of daily

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living, “moderate difficulties” in social functioning, “mild difficulties” with respect to

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concentration, persistence, or pace, and no episodes of decompensation. Id. In making these

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findings, the ALJ rejected Plaintiff’s contention that his PTSD, angry outbursts, and physical and

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verbal aggression met the severity of listing 12.06 because “no acceptable medical source has

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opined any marked limitations in functioning.” Id. As for the paragraph C criteria, the ALJ found

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them inapplicable because Plaintiff “is independent with activities of daily living from a mental

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standpoint.” Id. at 16.

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The ALJ next determined that Plaintiff retained the RFC to perform “light work” as

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defined in the Code of Federal Regulations,2 except that Plaintiff “must have an occupation with

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no public contact,” and “is able to work in proximity to others, but not as a team.” Id. The ALJ

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concluded that this RFC “is supported by the relatively mild nature of [Plaintiff’s] back condition

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as demonstrated by diagnostic studies and physical examinations.” Id. at 20. In assessing

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Plaintiff’s RFC, the ALJ assigned “great weight” to the findings of Rose Lewis, M.D., and the

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analysis of the state agency. Id. at 17. The ALJ discounted the opinion of treating physician

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Susan Campbell, M.D. because “her opinion is not supported by her own clinical findings, or the

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clinical findings of other treating sources.” Id. at 18. The ALJ also assigned “little weight” to the

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medical assessment of ability to do work related activities completed by K. Seidel, M.D., because

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“her opinions are inconsistent with the record as a whole.” Id. at 19. Additionally, the ALJ gave

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“limited weight” to the opinions of social workers Genna B. and Maria Leung regarding Plaintiff’s

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PTSD “because they are not acceptable medical sources.” Id. Finally, the ALJ found Plaintiff’s

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testimony about his own symptoms “not entirely credible,” id. at 17, because he “is able to care for

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his personal needs, prepare meals, sweep, mop, wash clothes and dishes, use public transportation,

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shop in stores, read, play chess, and go to the mosque,” id. at 19. Moreover, Plaintiff indicated

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that his visits to a psychiatrist are “helping,” and that “[h]e thinks his angry outbursts are

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contained.” Id. at 20. The ALJ further found that “[t]he evidence shows that the claimant stopped

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working for reasons other than disability.” Id.
Based on this RFC, the ALJ determined at step four that Plaintiff was not capable of

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performing past relevant work as a residence counselor or residential care aid due to non-

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exertional limitations. Id. At step five, the ALJ found that there were other jobs existing in

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significant numbers in the national economy that Plaintiff was able to perform. Id. at 21.

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Considering Plaintiff’s age, education, work experience, RFC, and the testimony of a vocational

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expert, the ALJ found that Plaintiff was capable of performing the requirements of three

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“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this
category when it requires a good deal of walking or standing, or when it involves sitting most of
the time with some pushing and pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, you must have the ability to do substantially all of
these activities.” 20 C.F.R. §§ 404.1567(b), 416.926(b).
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representative occupations: (1) “small products assembler”; (2) “blue print trimmer”; and (3)

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“finish inspector.” Id. The ALJ therefore concluded that Plaintiff was not disabled and denied his

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applications for benefits. Id. at 21-22.
Plaintiff’s Motion for Summary Judgment

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B.

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Plaintiff’s motion for summary judgment is far from a model of clarity. Nevertheless, the
Court is able to discern the following purported errors in the ALJ’s decision from Plaintiff’s

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briefing: (1) the ALJ erred in rejecting the opinion of treating source Dr. Campbell at step three of

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the analysis; (2) the ALJ erred in rejecting the opinion of psychiatrist Dr. Singh at step three of the

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analysis; (3) the ALJ erred in discounting the opinions of psychiatrist Dr. Patel and social worker

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Maria Leung, LCSW when assessing Plaintiff’s RFC; (4) the ALJ erred in rejecting the opinion of

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Dr. Seidel when assessing Plaintiff’s RFC; and (5) the ALJ failed to include all of Plaintiff’s non-

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exertional limitations in his hypothetical questions to the vocational expert. After reviewing the

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Administrative Record and considering all of Plaintiff’s arguments, the Court concludes that the

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ALJ’s decision to deny benefits is supported by substantial evidence and based on the application

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of proper legal standards.

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1.

The ALJ’s Step Three Analysis

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Plaintiff contends that the ALJ improperly discounted or rejected the opinions of Dr.

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Campbell and Dr. Singh at step three of the analysis. More generally, Plaintiff contends that

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“[t]here is substantial evidence that Plaintiff met the mental listing for Anxiety related disorders,

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Listing 12.06.” Mot. at 1.

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i.

Dr. Campbell’s Opinion

The Ninth Circuit distinguishes “among the opinions of three types of physicians: (1) those

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who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant

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(examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining

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physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally, the opinion of a

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treating physician is entitled to greater weight than the opinion of a non-treating physician. Id.

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However, a treating physician’s opinion “is not binding on an ALJ with respect to the existence of

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an impairment or the ultimate determination of disability.” Tonapetyan v. Halter, 242 F.3d 1144,
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1148 (9th Cir. 2001). In order to properly reject an uncontradicted opinion of a treating or

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examining doctor, the ALJ must state “clear and convincing reasons” for doing so. Lester, 81

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F.3d at 830. If the treating physician’s opinion is contradicted, an ALJ may reject the treating

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physician’s opinion if it states “specific and legitimate reasons” that are supported by substantial

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evidence. Id.
The ALJ rejected Dr. Campbell’s opinion in a March 2013 Employment Consultation that

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Plaintiff has a disability because “[a]lthough she is a treating source, her opinion is not supported

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by her own clinical findings, or the clinical findings of other treating sources.” Id. at 18. The ALJ

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noted that when Plaintiff first presented to Dr. Campbell in June 2012 complaining of sporadic

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back pain, Dr. Campbell observed that Plaintiff was able to “run a couple miles with no [chest

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pain]/[shortness of breath].” AR at 293. Dr. Campbell further observed that Plaintiff was able to

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climb stairs and hills and “walk a lot” without chest pain or shortness of breath. Id. In February

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2013, Plaintiff reported that he had fallen while walking because of foot pain, and that the fall had

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resulted in “a lot of pain in his back.” Id. at 323. However, during that same visit, Dr. Campbell

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noted that Plaintiff never went to the emergency room for treatment after his fall and “went to PT

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today for light exercise.” Id.

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Moreover, contemporaneous objective medical evidence did not show a worsening of

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Plaintiff’s back conditions after his fall. See id. at 314 (“Unchanged right convex scoliosis of the

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thoracic spine. Vertebral body heights are maintained.”), 315 (“No evidence of intervertebral disc

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space narrowing, neuroforaminal narrowing, or fracture. No evidence of spondylolisthesis or

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spondylitis.”). Dr. Shane Burch, who also consulted with Plaintiff in February 2013, observed that

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Plaintiff’s “back is currently stiff,” and that “[h]e has just started PT,” which “has not helped with

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the pain but his course is incomplete.” Id. at 384. Dr. Burch further observed that “there are no

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problems with mobility and there are no problems with self care.” Id. Dr. Burch concluded that

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Plaintiff “will benefit from physical therapy.” Id. at 386. During Plaintiff’s visit one month later,

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Dr. Campbell observed that Plaintiff was doing “so-so,” and that his back was “still stiff b/c hasn’t

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seen PT yet.” Id. at 321.

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The Court finds that the ALJ articulated clear and convincing reasons to reject Dr.
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Campbell’s opinion. As the ALJ notes, Plaintiff reported that he was able to climb stairs and hills,

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and run a couple of miles despite his back pain. Even after Plaintiff’s reported fall, Dr.

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Campbell’s objective clinical records did not demonstrate a worsening of his back condition.

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Additionally, the evidence in the record shows that Plaintiff failed to seek immediate treatment

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following his fall and delayed completing his prescribed physical therapy treatment. See Roth v.

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Shalala, 45 F.3d 279, 282 (8th Cir. 1995) (“Failure to follow a prescribed course of remedial

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treatment without good reason is grounds for denying an application for benefits.”); cf. Stout v.

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Shalala, 988 F.2d 853, 855 (8th Cir. 1993) (“If an impairment can be controlled by treatment or

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medication, it cannot be considered disabling.”). Finally, Dr. Burch’s contemporaneous opinion

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conflicted with Dr. Campbell’s ultimate opinion regarding disability, as Dr. Burch observed “no

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problems with mobility.” AR at 384.

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In his motion, Plaintiff summarizes Dr. Campbell’s medical findings that are favorable to

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him and summarily concludes that “[t]he ALJ did not give Dr[]. Campbell . . . the weight an ALJ

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is required to give pursuant to the Treating Source Rule.” Mot. at 6-8. The Court disagrees.

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Based on his consideration of the full evidentiary record, the ALJ properly weighed Dr.

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Campbell’s opinion and rejected it on the basis of clear and convincing reasons.

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ii.

Dr. Singh’s Opinion

In concluding that “no acceptable medical source has opined any marked limitations in

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functioning,” the ALJ found that Dr. Singh “noted that the claimant had a good response to

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Remeron for his PTSD in terms of sleep and nightmares, but it was making him too groggy. She

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stated that increasing Remeron to a higher dose may be less sedating.” AR at 15-16. As he did

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with respect to Dr. Campbell, Plaintiff makes the conclusory argument that “[t]he ALJ did not

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give Dr[]. . . . Singh the weight an ALJ is required to give pursuant to the Treating Source Rule.”

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Mot. at 8. Plaintiff appears to be arguing that the ALJ improperly rejected or discounted aspects

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of Dr. Singh’s opinion that show that Plaintiff meets or medically equals the severity of a listed

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impairment, see Mot. at 8-9, but Plaintiff does not identify what aspect of Dr. Singh’s opinion was

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entitled to greater weight. Indeed, the assessments by Dr. Singh in the Administrative Record

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generally imply that Plaintiff’s mental impairments are manageable. See, e.g., AR at 344 (“Notes
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that violence impulse is only if provoked which is why he avoids crowds. . . . 41 y.o. male with

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PTSD who has seen a lot of violence and had it touch poignantly close to home. He has managed

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to stay out of trouble despite constant triggers and states that his children are a source of

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motivation.”), 364 (“He tells me about being in LA with GF and his plan to return for more time

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there in June. While with her he eats well and feels good.”).

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Rather than identifying an opinion by Dr. Singh that would support his position at step

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three of the analysis, Plaintiff cherry picks certain facts from his life history as evidence that his

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impairments meet or equal the Anxiety listing. The Court does not doubt that Plaintiff has had a

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difficult life, and there is no reason to question Plaintiff’s testimony regarding his violent past.
But viewed as a whole, the evidentiary record—and Dr. Singh’s assessments in particular—

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suggest that Plaintiff has been able to successfully manage his PTSD, stress, and violent outbursts

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so that he can engage in activities of daily living and social functioning without marked limitation.

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The Court finds that the ALJ properly weighed Dr. Singh’s opinion.
iii.

Substantial Evidence Supports the ALJ’s Decision at Step Three

Plaintiff also makes the catch-all argument that “[t]here is substantial evidence that

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Plaintiff met the mental listing for Anxiety related disorders, Listing 12.06.” Mot. at 1. As an

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initial matter, Plaintiff inverts the applicable legal standard. The ALJ’s decision must stand unless

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it is not supported by substantial evidence. Vertigan, 260 F.3d at 1049. In other words, even if

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there is substantial evidence that Plaintiff met the listing, that does not preclude a finding that

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there was also substantial evidence that Plaintiff did not meet the listing, because evidence is

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substantial if it is “more than a mere scintilla but less than a preponderance; it is such relevant

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evidence that a reasonable mind might accept as adequate to support a conclusion.” Sandgathe,

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108 F.3d at 980. And “[w]here evidence is susceptible to more than one rational interpretation, it

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is the ALJ’s conclusion that must be upheld.” Burch, 400 F.3d at 679.

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In any event, the Court finds that the ALJ’s conclusion at step three was supported by

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substantial evidence. As described above, the ALJ properly weighed the relevant medical

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evidence. Additionally, the ALJ identified the extensive evidence from Plaintiff’s own testimony

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that supports the ALJ’s conclusion. See AR at 15-16. The ALJ did not commit legal error at step
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three of his analysis.
2.

The ALJ’s RFC Assessment

Plaintiff next argues that the ALJ erred when assessing Plaintiff’s RFC. Specifically,

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Plaintiff argues that the ALJ improperly discounted the opinions of (1) psychiatrist Dr. Patel and

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social worker Ms. Leung, and (2) Dr. Seidel.

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In order to properly determine a claimant’s RFC, the ALJ must consider the claimant’s

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mental limitations in four broad functional areas: activities of daily living; social functioning;

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concentration, persistence, or pace; and episodes of decompensation. See 20 C.F.R.

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§ 404.1520a(c)(3). The Code of Federal Regulations requires an ALJ to consider all of the
claimant’s limitations when assessing her RFC, including any non-severe mental limitations. Id.

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§ 404.1545(a)(2) (“We will consider all of your medically determinable impairments of which we

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are aware, including your medically determinable impairments that are not ‘severe,’ . . . when we

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assess your residual functional capacity.”).

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In this case, the ALJ found that Plaintiff did not have a severe physical or mental

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impairment at step two of his analysis. However, the ALJ “generously reduced the capacity from

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medium work to light work based on [Plaintiff’s] subjective complaints of pain.” AR at 17. The

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ALJ further noted that he “has considered [Plaintiff’s] angry outbursts, and therefore, has placed

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limits on social interaction in the residual functional capacity.” Id. at 16. Specifically, the ALJ

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qualified Plaintiff’s RFC by requiring that he “have an occupation with no public contact” and not

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work “as a team.” Id.

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i.

Opinion of Dr. Patel and Ms. Leung

Plaintiff contends that the ALJ did not properly weigh the opinions of psychiatrist Dr. Patel

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and psychotherapist Ms. Leung when assessing Plaintiff’s RFC. But the medical assessment

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signed by Dr. Patel and Ms. Leung that Plaintiff cites in his motion for summary judgment is not

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contrary to the ALJ’s RFC assessment. Id. at 463-66. In that assessment, Dr. Patel and Ms.

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Leung note that Plaintiff “frequently experiences depressed and irritable mood, intrusive thoughts,

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difficulty sleeping, avoidance behaviors, and angry outbursts.” Id. at 463. They rate him as “Fair”

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when it comes to relating to coworkers, dealing with the public, using judgment, and dealing with
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work stress. Id. at 465. But they rate Plaintiff as “Good” when it comes to following work rules,

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interacting with supervisors, and functioning independently, and “Very Good” in maintaining

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attention or concentration. Id.

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The ALJ properly took Plaintiff’s moderate mental limitations identified by Dr. Patel and

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Ms. Leung into account when assessing his RFC, as reflected in the qualifications to the RFC.

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Moreover, Plaintiff’s own testimony indicates that “his angry outbursts are contained” and that he

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is learning to “isolate himself so as not to have bad interactions with others.” Id. at 20. The Court

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finds that the ALJ properly weighed and incorporated Dr. Patel’s and Ms. Leung’s opinion into his

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RFC assessment.

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ii.

Dr. Seidel’s Opinion

Plaintiff also contends that the ALJ, in finding that Plaintiff could lift up to 20 pounds,

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improperly rejected the opinion of treating source Dr. Seidel, who opined that Plaintiff could lift

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up to ten pounds occasionally, lift up to nine pounds frequently, sit, stand, and/or walk for less

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than two hours in an eight-hour workday, and never stoop, kneel, crouch, and crawl. Id. at 461-

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62. The ALJ “assign[ed] little weight to Dr. Seidel because her opinions are inconsistent with the

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record as a whole, particularly the diagnostic studies, the findings of Dr. Burch, Dr. Campbell, and

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the examination by Dr. Lewis.” Id. at 18-19.

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Dr. Lewis opined that Plaintiff could lift 50 pounds occasionally and 25 pounds frequently,

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and that he had “[n]o limitations” in terms of sitting, standing, and walking capacity. Id. at 281.

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Dr. Burch did not opine on Plaintiff’s ability to lift heavy objects, but found “no problems with

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mobility.” Id. at 384. Because Dr. Seidel’s opinion is contradicted, the ALJ need only provide

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“specific and legitimate” reasons to reject it. Lester, 81 F.3d at 830.

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The Court finds that the ALJ has identified specific and legitimate reasons to reject Dr.

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Seidel’s opinion regarding Plaintiff’s exertional limitations. The evidence in the record, in

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particular Plaintiff’s own testimony, contradicts Dr. Seidel’s opinion and thereby lessens her

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credibility. For example, Plaintiff testified that he is able to make breakfast, walk, sweep, do

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dishes, cook, do laundry, shop in stores, and use public transportation. Id. at 19. This testimony,

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and other evidence in the record, supports the ALJ’s rejection of Dr. Seidel’s opinion and
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determination that Plaintiff is capable of performing “light work” as defined by the Code of

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Federal Regulations.

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The Court finds that the ALJ did not commit legal error when assessing Plaintiff’s RFC.
3.

The ALJ’s Step Five Analysis

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Finally, Plaintiff argues that the ALJ failed to include all of Plaintiff’s exertional and non-

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exertional limitations in his hypothetical questions to the vocational expert. Specifically, Plaintiff

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contends that the ALJ should have included limitations related to (1) Plaintiff’s inability to work

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with coworkers due to anger control issues and violent impulses; and (2) grogginess caused by

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Remeron, a medication Plaintiff was taking.

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First, as described above, the Court finds that the ALJ’s RFC assessment properly accounts

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for Plaintiff’s moderate functional limitations related to anger control issues. Therefore, the ALJ

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did not err by not posing hypotheticals incorporating specific descriptions of various anger control

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issues that Plaintiff has had in the past to the vocational expert.

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Second, the Court finds that the ALJ was not required to pose hypotheticals incorporating

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Plaintiff’s purported grogginess to the vocational expert because the evidence in the record does

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not support such a limitation. Although Plaintiff reported to Dr. Singh that the Remeron was

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making him feel groggy, she instructed him “[t]o really get the anti-depressant effect and

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acclimate to the grogginess, he ought to take it daily.” AR at 368. One month later, Dr. Singh

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observed that “when [Plaintiff] takes [Remeron], he sleeps 10h and quite well.” Id. at 374.

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Plaintiff did not report any grogginess at the follow-up consultation. Accordingly, the ALJ did not

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err by not posing hypotheticals dealing with any purported grogginess.

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IV.

CONCLUSION
For the foregoing reasons, Plaintiff’s motion is DENIED. Because the government did not

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file a cross-motion for summary judgment, the parties are ORDERED to meet and confer and

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submit a joint statement no more than two pages in length by 5:00 p.m. on February 8, 2016

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indicating what if anything remains to be decided in this case in light of this order.

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IT IS SO ORDERED.
Dated: 2/1/2016

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________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge

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United States District Court
Northern District of California

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