Noyes v. Colvin

Filing 20

ORDER AFFIRMING THE DECISION OF THE SOCIAL SECURITY ADMINISTRATION COMMISSIONER re 19 - Signed by JUDGE HELEN GILLMOR on 1/25/2017. "The Commissioner of Social Security Administration's decision is AFFIRMED. T he Clerk of Court is Ordered to CLOSE THE CASE." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

JUDY DIANE NOYES,
Plaintiff,
vs.
CAROLYN W. COLVIN, Social
Security Administration
Commissioner,
Defendant.
______________________________
_

)
)
)
)
)
)
)
)
)
)
)
)

CIVIL NO. 16-00252 HG-KSC

ORDER AFFIRMING THE DECISION OF THE SOCIAL SECURITY
ADMINISTRATION COMMISSIONER
This case involves the appeal of the Social Security
Administration Commissioner’s denial of Disability Insurance
Benefits to Plaintiff Judy Diane Noyes.
On October 23, 2012, Plaintiff filed an application for
Disability Insurance Benefits pursuant to Title II of the
Social Security Act.

Plaintiff claimed that she has been

disabled since October 23, 2012 because of a rotator cuff tear
in her right shoulder.
The Social Security Administration denied her
application.

Following an administrative hearing, the

Administrative Law Judge (“ALJ”) held that Plaintiff was not
disabled for a continuous period of at least 12 months

1

following her onset disability date of October 23, 2012.

The

Appeals Council denied Plaintiff's request for review and
Plaintiff appealed to this Court.
The Court AFFIRMS the decision of the Social Security
Administration Commissioner.

PROCEDURAL HISTORY

On October 23, 2012, Plaintiff Judy Diane Noyes filed an
application for Disability Insurance Benefits with the Social
Security Administration.

(Administrative Record (“AR”) at

175-76, 256-57, ECF No. 11).
On April 3, 2013, the Social Security Administration
denied Plaintiff’s initial application.

(AR at pp. 110-13).

On August 21, 2013, the Administration denied her request
for reconsideration.

(AR at pp. 115-19).

Following the denial of Plaintiff’s request for
reconsideration, she sought a hearing before an Administrative
Law Judge (“ALJ”).

On July 15, 2014, an ALJ conducted a

hearing on Plaintiff’s application.

(AR at pp. 32-81).

On

November 24, 2014, the ALJ issued a written decision denying
Plaintiff’s application.

(AR at pp. 13-31).

Plaintiff sought review by the Appeals Council for the
Social Security Administration.

(AR at pp. 11-12).
2

The

Appeals Council denied further review of Plaintiff’s
application on April 15, 2016, rendering the ALJ’s decision as
the final administrative decision by the Commissioner of
Social Security.

(AR at pp. 1-4).

On May 20, 2016, Plaintiff sought judicial review of the
Commissioner of Social Security’s final decision to deny her
application for Disability Benefits in this Court pursuant to
42 U.S.C. § 405(g).

(Complaint for Review of Social Security

Disability Benefits Determinations, ECF No. 1).
On August 4, 2016, the Magistrate Judge issued a briefing
schedule.

(ECF No. 15).

On September 30, 2016, Plaintiff filed PLAINTIFF’S
OPENING BRIEF.

(ECF No. 16).

On November 14, 2016, Defendant filed DEFENDANT’S
ANSWERING BRIEF.

(ECF No. 17).

On November 29, 2016, Plaintiff filed PLAINTIFF’S REPLY
BRIEF.

(ECF No. 18).

On January 9, 2017, the Court held a hearing on
Plaintiff’s appeal of the decision of the Social Security
Administration Commissioner.
BACKGROUND

Plaintiff’s Work History

3

Plaintiff is a 55 year-old female.
Record (“AR”) at p. 175, ECF No. 11).

(Administrative

Plaintiff worked for

approximately thirty years as a registered nurse in neonatal
intensive care units (“NICU”).

Plaintiff worked between

October 1986 and October 2005 at Children’s Medical Center in
Minneapolis, Minnesota.

(Id. at p. 265).

From January 2006

until November 2012, Plaintiff was employed as a registered
nurse in the NICU at Kapiolani Medical Center in Honolulu,
Hawaii.

(Id. at pp. 190, 204, 215-16, 265).

Plaintiff’s Right Shoulder Injury and Treatment

In September 2009, Plaintiff injured her right shoulder
at the gym.

(AR at pp. 21, 282, 285, ECF No. 11).

Plaintiff

did not seek medical treatment for the injury for more than
three years.
On October 15, 2012, Plaintiff sought treatment for the
first time for her right shoulder injury.

Plaintiff was

examined by orthopedic surgeon Dr. Elizabeth M. Ignacio.
at p. 285).

(Id.

A magnetic resonance imagining (“MRI”) of

Plaintiff’s right shoulder was conducted two days later on
October 17, 2012.

(Id. at p. 326).

Following receipt of the MRI results, on October 22,
2012, Plaintiff was examined a second time by Dr. Ignacio.

4

(Id. at p. 288).

Dr. Ignacio informed Plaintiff that the MRI

revealed that Plaintiff’s right shoulder had a massive rotator
cuff tear with evidence of fatty degeneration atrophy.1
at p. 289).

(Id.

Dr. Ignacio concluded that the damage to

Plaintiff’s rotator cuff was not reparable.

(Id.)

The following day, on October 23, 2012, Plaintiff filed
an application for Disability Benefits Insurance with the
Social Security Administration pursuant to 42 U.S.C. § 423.
(AR at pp. 16, 241, ECF No. 11).
A week later, on October 30, 2012, Plaintiff was examined
by Dr. Jay Marumoto for a second opinion as to the diagnosis
of her rotator cuff tear.

(Id. at pp. 282-83).

Dr. Marumoto

agreed that Plaintiff had a massive rotator cuff tear.
at p. 283).

(Id.

Dr. Marumoto concluded that operative repair or

reconstruction of Plaintiff’s right shoulder was not a
recommended treatment.

(Id. at p. 283).

Dr. Marumoto

referred Plaintiff to physical therapy to improve strength and
decrease pain in her right shoulder.

(Id.)

On November 7, 2012, Plaintiff was evaluated for a third
time by Dr. Ignacio.

(Id. at pp. 290-91).

Dr. Ignacio agreed

with Dr. Marumoto that Plaintiff’s right rotator cuff was not

1

Fatty degeneration atrophy is a condition where muscle
fibers weaken and fatty tissue infiltrates around the rotator
cuff muscles after a rotator cuff tear.
5

reparable by surgery.

(Id. at p. 291).

Dr. Ignacio advised

Plaintiff that the pain and weakness in her right shoulder may
prevent her from performing her work as a nurse in the NICU.
(Id.)
The same date, November 7, 2012, Plaintiff resigned from
her position as a NICU nurse.

(Id. at pp. 37, 175, 231).

Plaintiff ended her employment because her right shoulder
weakness prevented her from picking up babies, from performing
CPR, and from moving medical equipment.

(Id. at pp. 37-38).

On November 16, 2012, Plaintiff sought physical therapy
for her right shoulder based upon the recommendation of Dr.
Marumoto.

(Id. at pp. 309-10).

Plaintiff believed that

physical therapy would not assist her and she did not seek
further treatment.

(Id. at p. 40).

The Social Security Administration’s Review of Plaintiff’s
October 2012 Application For Disability Benefits

Plaintiff’s October 23, 2012 application for Disability
Insurance Benefits was denied on April 3, 2013.

(AR at pp.

110-13, ECF No. 11).
Following the initial denial, Plaintiff moved for
reconsideration.

(Id. at p. 114).

On April 15, 2013,

Plaintiff was evaluated for a fourth time by Dr. Ignacio in
support of her motion for reconsideration.
6

(Id. at pp. 302-

03).

Dr. Ignacio concluded that Plaintiff continued to have a

massive rotator cuff tear and pain in her right shoulder.
(Id.)

For the first time, Dr. Ignacio prescribed pain

medications for Plaintiff.

(Id. at pp. 267, 319).

On August 21, 2013, the Social Security Administration
denied Plaintiff’s motion for reconsideration.

(Id. at pp.

115-19).
On September 30, 2013, Plaintiff requested a hearing
before an Administrative Law Judge (“ALJ”).

(Id. at p. 120).

Before the administrative hearing, nearly a year after
her last examination, Plaintiff was evaluated by Dr. Ignacio
for a fifth time on March 13, 2014.

(Id. at pp. 314-15).

Dr.

Ignacio determined that Plaintiff’s right shoulder pain
“remained the same” and prescribed additional medications.
(Id. at p. 315).
On July 15, 2014, a hearing on Plaintiff’s application
for Disability Benefits was held before an ALJ.

(Id. at pp.

32-81).
The ALJ denied Plaintiff’s application for Disability
Insurance Benefits, finding that Plaintiff had not met the
requirements set forth in 42 U.S.C. § 423.

(AR at pp. 16-27,

ECF No. 11).
42 U.S.C. § 423 establishes the statutory eligibility

7

requirements which an individual must satisfy to receive a
disability insurance benefit pursuant to the Social Security
Act.

42 U.S.C. § 423(a)(1).

An individual is eligible to

receive disability insurance benefits if the individual:
(A)

is insured for disability insurance benefits as
determined by 42 U.S.C. § 423(c)(1);

(B)

has not attained retirement age;

(C)

has filed an application for disability insurance
benefits; and,

(D)

is under a disability as defined in 42 U.S.C. §
423(d)(1)(A).

42 U.S.C. § 423(a)(1)(A)-(D).
The ALJ evaluated the four requirements of 42 U.S.C. §
423(a)(1).
First, the ALJ reviewed if Plaintiff was insured for
disability insurance benefits pursuant to 42 U.S.C. §
423(c)(1).

The ALJ determined that Plaintiff’s earnings

record showed that she had made disability insurance coverage
payments.

Based on Plaintiff’s work history, the ALJ found

that Plaintiff had acquired quarters of coverage that will
last until December 31, 2017.

(AR at p. 16, ECF No. 11).

Next, the ALJ found that Plaintiff fulfilled sections (B)
and (C) of Section 423 because she had not reached retirement
age at the time of her application and had properly filed an
application for disability insurance benefits.
8

Finally, the ALJ examined if Plaintiff suffered from a
disability pursuant to 42 U.S.C. § 423(d).
42 U.S.C. § 423(d)(1)(A) provides, as follows:
The term “disability” means— inability to engage in
any substantial gainful activity by reason of any
medically determinable physical or mental impairment
which can be expected to result in death or which
has lasted or can be expected to last for a
continuous period of not less than 12 months.
Plaintiff claims that she has been disabled for a
continuous period starting on October 23, 2012, due to her
right shoulder injury.

(AR at pp. 223-231, 241, ECF No. 11).

The Administrative Law Judge determined that Plaintiff
failed to establish that she had a disability that lasted or
was expected to last at least twelve months following her
alleged onset date of disability of October 23, 2012.

(Id. at

p. 26).
The ALJ found that Plaintiff was not capable of
performing her past relevant work as a registered nurse.
at p. 23).

(Id.

The Administrative Law Judge found, however, that

there was work that existed in significant numbers in the
economy that Plaintiff could perform.

(Id. at pp. 23-26).

The Administrative Law Judge relied on the testimony of a
vocational expert to find that someone with Plaintiff’s
limitations could perform work as an Usher, Barker, or
Furniture Rental Consultant.

(Id. at pp. 24-26).
9

Plaintiff sought review of the Administrative Law
Judge’s decision with the Appeals Council.

The Appeals

Council declined Plaintiff's request for review and rendered
the ALJ’s decision as the final administrative decision by the
Commissioner of Social Security.

(Id. at pp. 1-4).

STANDARD OF REVIEW

A claimant is disabled under the Social Security Act if
he or she is unable to “engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which ... has lasted or can be expected to
last for a continuous period of not less than 12 months.”

42

U.S.C. § 423(d)(1)(A); see 42 U.S.C. § 1382c(a)(3)(A); Burch
v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
A decision by the Commissioner of Social Security must be
affirmed by the District Court if it is based on proper legal
standards and the findings are supported by substantial
evidence on the record as a whole.

See 42 U.S.C. § 405(g);

Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.”

Richardson v. Perales, 402 U.S. 389, 401 (1971);

see also Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir.

10

1993).
ANALYSIS
I.

Plaintiff’s History And Claimed Disability

The Administrative Record reflects that Plaintiff was
born in August 1961.
ECF No. 11).

(Administrative Record (“AR”) at p. 241,

Plaintiff became a registered nurse in 1986 and

worked in neonatal intensive care units (“NICU”) for nearly 30
years.

(Id. at pp. 190, 204, 215-16, 265).

In September 2009, Plaintiff injured her right shoulder
while lowering a 45-pound weight at the gym.

(Id. at pp. 21,

282, 285).
Plaintiff continued to work as a NICU registered nurse
for the next three years following her injury.

Plaintiff

continued to work through October 2012, the point at which she
first sought evaluation for right shoulder pain.

A.

Objective Medical Findings in October 2012

On October 15, 2012, Plaintiff was examined by orthopedic
surgeon Dr. Elizabeth M. Ignacio.

(AR at p. 285, ECF No. 11).

Plaintiff reported that she had right shoulder weakness with
intermittent pain.

(Id.)

Plaintiff claimed her pain was “0-

1” on a scale of 1-10, with 10 being the highest severity of
pain.

(Id.)
11

Dr. Ignacio’s examination revealed that Plaintiff’s right
shoulder had full range of motion.

(Id. at p. 287).

Dr.

Ignacio conducted an impingement test that determined that
Plaintiff suffered some pain in her right shoulder.

(Id.)

Dr. Ignacio ordered a magnetic resonance imagining (“MRI”) be
done of Plaintiff’s right shoulder.

(Id.)

Following receipt of the MRI results, on October 22,
2012, Plaintiff was examined a second time by Dr. Ignacio.
(Id. at p. 288).

At this appointment, Plaintiff claimed that

she had “moderate” pain.

(Id.)

Dr. Ignacio found that

Plaintiff had some pain based on the impingement test.

(Id.)

Dr. Ignacio informed Plaintiff that the MRI revealed that
Plaintiff’s right shoulder had a massive rotator cuff tear
with evidence of fatty degeneration atrophy.

(Id. at p. 289).

Dr. Ignacio concluded that the damage to Plaintiff’s rotator
cuff was

not reparable.

(Id.)

Dr. Ignacio recommended that

Plaintiff seek a second opinion from Dr. Jay Marumoto, a
specialist in advanced arthroscopy.

(Id.)

A week later, on October 30, 2012, Plaintiff was examined
by Dr. Marumoto.

(Id. at pp. 282-83).

Plaintiff reported

that she had severe pain that was 9 on a scale of 1-10.
at p. 282).

(Id.

Dr. Marumoto concluded that surgery was not a

suitable treatment for Plaintiff’s right shoulder injury.

12

(Id. at p. 283).

Dr. Marumoto explained to Plaintiff that her

prognosis for recovery was poor.

(Id.)

Dr. Marumoto

recommended that Plaintiff seek physical therapy for
treatment.

B.

(Id.)

Objective Medical Findings and Plaintiff’s
Resignation from Work in November 2012

On November 7, 2012, Plaintiff was evaluated for a third
time by Dr. Ignacio.

(AR at pp. 290-91, ECF No. 11).

At this

appointment, Plaintiff claimed to have “mild,” intermittent,
and dull pain in her right shoulder.

(Id. at p. 290).

Plaintiff continued to have full range of motion in her right
shoulder.

(Id.)

Dr. Ignacio agreed with Dr. Marumoto’s diagnosis that
Plaintiff’s right rotator cuff was not reparable by surgery.
(Id. at p. 291).

Dr. Ignacio stated that she believed that

Plaintiff’s rotator cuff injury was permanent and that it
would preclude her from lifting with her right arm such that
she should no longer work as a NICU nurse.

(Id.)

The same date, on November 7, 2012, Plaintiff resigned
from her work as a registered nurse in the NICU at Kapiolani
Medical Center.

(Id. at pp. 37, 175, 231).

Nine days later, on November 16, 2012, Plaintiff was
evaluated by Physical Therapist Roy S. Murakami.
13

(Id. at pp.

309-10).

Murakami concluded that Plaintiff had weakness in

her right shoulder and some pain.

(Id. at p. 309).

Murukami

stated that the patient should undergo physical therapy two
times a week to decrease pain and increase range of motion and
strength in the right shoulder.

(Id. at p. 310).

Plaintiff did not continue with physical therapy as she
determined that it was “not going to really make a
difference.”

C.

(Id. at p. 40).

Plaintiff’s Examinations Following November 2012

On April 15, 2013, more than five months after her last
evaluation, Plaintiff was examined a fourth time by Dr.
Ignacio.

(AR at pp. 302-03, ECF No. 11).

Plaintiff reported

that she had “moderate” and intermittent right shoulder pain.
(Id. at p. 302).

Plaintiff had nearly full range of motion in

her right shoulder and significant strength with some pain.
(Id. at p. 303).
Dr. Ignacio concluded that Plaintiff “will always have
severe limitations of the use of her right arm, and will
likely be needing pain medications on a daily basis, and
therefore, I support her claim that she has a significant
disability that makes employment difficult for her.”
p. 303).

14

(Id. at

Dr. Ignacio prescribed medication to Plaintiff for the
first time at the April 15, 2013 appointment.

The April 15,

2013 appointment was the fourth examination Plaintiff Noyes
had with Dr. Ignacio over a period of seven months from
October 2012 to April 2013.

Dr. Ignacio prescribed Voltaren

and Tramadol to treat Plaintiff’s right shoulder pain and
prescribed Naproxen as an anti-inflammatory.

(Id. at pp. 267,

318-19).
Plaintiff was not evaluated by Dr. Ignacio again for
nearly a year.

On March 13, 2014, Plaintiff was examined by

Dr. Ignacio for a fifth time.

(Id. at pp. 314-15).

At the

March 2014 appointment, Plaintiff claimed to have mild pain
that was a 4 on a scale of 1-10.

(Id. at p. 314).

Dr.

Ignacio determined that Plaintiff’s right shoulder pain
“remained the same” and prescribed additional Tramadol and
Naproxen.

II.

(Id. at p. 315).

Plaintiff’s Daily Activities Following November 2012

Plaintiff testified that following her resignation from
work in November 2012, she participates in a number of daily
activities.

Plaintiff lives with her husband and takes care

of her granddaughter and gets her off to school.
224, ECF No. 11).

(AR at p.

Plaintiff cares for a small family dog and

15

small turtles.

(Id. at pp. 46-47, 224).

Plaintiff does some housework including dusting, wiping
counters, and mopping floors.

(Id. at pp. 43, 225).

Plaintiff is able to cook, load and unload some items in the
dishwasher, and take clothes in and out of the washer and
dryer.

(Id. at pp. 43-44).

heavy housework.

She does not do any vacuuming or

(Id. at p. 43).

Plaintiff testified that she has difficulty reaching with
her right arm but can lift “about 2.5 pounds.”
39).

(Id. at p.

Plaintiff stated that she does not have any impairment

that limits the use of her left arm.

(Id. at p. 39).

Plaintiff is able to drive a car and go out without
assistance.

(Id. at pp. 45-46).

She shops in stores for food

and clothing and manages her own financial affairs.
pp. 46, 226).

(Id. at

Plaintiff is able do self care, shower, dress,

shave, and brush her teeth.

(Id. at p. 44).

She watches

television, reads books, takes walks, and goes to the beach.
(Id. at pp. 46-47, 227).

III.

Applicable Law

The Social Security Administration has implemented
regulations establishing when a person is disabled so as to be
entitled to benefits under the Social Security Act, 20 C.F.R.

16

§ 404.1520; 42 U.S.C. § 423.

The regulations establish a

five-step sequential evaluation process to determine if a
claimant is disabled.

The Commissioner of the Social Security

Administration reviews a disability benefits claim by
evaluating the following:

(1)

Has the claimant been engaged in substantial
gainful activity? If so, the claimant is not
disabled. If not, proceed to step two.

(2)

Has the claimant’s alleged impairment been
sufficiently severe to limit his ability to
work? If not, the claimant is not disabled.
so, proceed to step three.

If

(3)

Does the claimant’s impairment, or combination
of impairments, meet or equal an impairment
listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1? If so, the claimant is disabled.
If not, proceed to step four.

(4)

Does the claimant possess the residual
functional capacity to perform his past relevant
work? If so, the claimant is not disabled. If
not, proceed to step five.

(5)

Does the claimant’s residual functional
capacity, when considered with the claimant’s
age, education, and work experience, allow him
to adjust to other work that exists in
significant numbers in the national economy? If
so, the claimant is not disabled. If not, the
claimant is disabled.

Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1052
(9th Cir. 2006) (citing 20 C.F.R. § 404.1520).
The claimant has the burden of proof at steps one through
four, and the Commissioner has the burden of proof at step
17

five.

Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir.

2001).

IV.

The Administrative Law Judge Reviewed Plaintiff’s
Application By Using The Five-Step Sequential Evaluation

At Plaintiff’s July 15, 2014 administrative hearing, the
Administrative Law Judge (“ALJ”) for the Social Security
Administration reviewed Plaintiff’s claim by engaging in the
five-step sequential evaluation.
Both Parties agree that there were no errors by the ALJ
in the first three steps of the evaluation.
First, the ALJ determined that Plaintiff was not engaged
in substantial gainful activity since the date of her alleged
onset date of disability of October 23, 2012.

(AR at p. 18,

ECF No. 11).
Second, the ALJ found that Plaintiff had the following
impairments that limited her ability to work: chronic massive
rotator cuff tear, irreparable, with rotator cuff arthropathy
and degenerative joint disease, of the right shoulder.

(Id.)

Third, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments
in 20 C.F.R. Part 404, Subpart P, Appendix 1.
404.1520(d), 404.1525, and 404.1526.
18

20 C.F.R. §

(AR at p. 18, ECF No.

11).
Plaintiff does not agree with the ALJ’s evaluation at the
final two steps of the five-step evaluation process.
Plaintiff agrees that the ALJ correctly determined that she
was unable to engage in her past work as a neonatal nurse.
Plaintiff does not agree to the residual functional capacity
that the ALJ determined at step four.

The ALJ evaluated the

medical evidence, Plaintiff’s testimony, and other evidence in
the record to determine Plaintiff’s residual functional
capacity.
The ALJ determined, based on the testimony and medical
evidence, that Plaintiff has the residual functional capacity
to perform light work as defined in 20 C.F.R. § 404.1567(b),
with the following limitations:
[L]ift/carry 20 pounds occasionally and 10 pounds
frequently with the left upper extremity;
precluded from lifting, pushing or pulling with the
right upper extremity more than 2.5 pounds; no
reaching with the right upper extremity; can handle,
finger, pinch and feel with the right hand, but can
write with the right upper extremity only when close
to the body, with elbow bent, arm perpendicular 90N
or lower to the body; stand/walk about 6 hours of an
8 hour workday; sit for about 6 hours out of an 8
hour workday; precluded from climbing
ladders/ropes/scaffolds; precluded from crawling;
and, avoid vibration.
(AR at p. 19, ECF No. 11).
Plaintiff specifically objects to the ALJ’s determination

19

that she could lift 2.5 pounds.
Plaintiff also challenges the ALJ’s determination at
step-five that there are jobs that exist in significant
numbers in the national economy that Plaintiff can perform
given her age, education, work experience, and residual
functional capacity.

V.

Plaintiff Argues That The ALJ Erred In Denying Her
Application Based On The Social Security Administration’s
Sequential Step Evaluation Process

Plaintiff challenges the ALJ’s decision on three grounds.

First, Plaintiff argues that the ALJ did not provide
clear and convincing reasons for rejecting the Plaintiff’s
testimony about the severity of her symptoms and inability to
work at all.
Second, Plaintiff argues that the ALJ did not provide
clear and convincing reasons for rejecting the conclusion from
orthopaedic surgeon, Dr. Elizabeth Ignacio, that Plaintiff
could not lift any weight at all with her right arm.
Third, Plaintiff argues that the ALJ erred by relying on
the testimony of the vocational expert to support her finding
that there are jobs in the national economy that exist in

20

significant numbers that Plaintiff can perform.

A.

The ALJ Did Not Err In Declining To Credit
Plaintiff’s Testimony As To The Severity Of Her
Symptoms And Her Claimed Inability To Work

An individual’s statement is not necessarily treated as
conclusive evidence of disability.

42 U.S.C. § 423(d)(5)(A);

20 C.F.R. § 404.1529(a).
The claimant must produce objective medical evidence of
an underlying impairment or impairments that could reasonably
be expected to produce some degree of symptom.

Smolen v.

Chater, 80 F.3d 1273, 1281-82 (9th Cir. 1996).

An ALJ may

discredit the claimant’s testimony about the severity of her
symptoms by offering specific, clear and convincing reasons
for doing so.

Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th

Cir. 2008).
The ALJ may consider many factors in weighing a
claimant’s credibility, including evaluating inconsistent
statements concerning the claimant’s symptoms against evidence
of the claimant’s participation in daily activities, and
unexplained or inadequately explained failure of the claimant
to seek treatment or to follow a prescribed course of
treatment.

Id. at 1039.

The ALJ’s credibility findings must be sufficiently

21

specific to permit the court to conclude that the ALJ did not
arbitrarily discredit the claimant’s testimony.

Thomas v.

Barnhart, 278 F.3d 947, 958 (9th Cir. 2002).
Here, the ALJ made specific, clear and convincing
findings to discredit Plaintiff’s testimony as to the severity
of her pain and her claimed inability to work.

1.

The ALJ Made Specific Findings That Plaintiff’s
Testimony Was Inconsistent With Her
Participation in Daily Activities

The ALJ found that Plaintiff’s testimony regarding the
severity of her pain in her right shoulder was not credible.
(AR at pp. 20-23, ECF No. 11).
An ALJ may properly reject a claimant’s testimony about
the severity of her disability when it conflicts with her own
testimony about her ability to care for her personal needs,
cook, clean, shop, manage her finances, and interact with
others.

Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005).

Plaintiff testified that she was involved in a wide range
of daily activities.

Plaintiff maintains a household with her

husband and granddaughter but reported she needs some
assistance with heavy equipment or moving large items.
Plaintiff explained that she takes care of her granddaughter
and gets her off to school.

(AR at p. 224, ECF No. 11).

22

Plaintiff cares for a small family dog and small turtles.
(Id. at pp. 46-47, 224).

Plaintiff does housework and is able

to cook, load and unload some items in the dishwasher, and
take clothes in and out of the washer and dryer.

(Id. at pp.

43-44).
Plaintiff drives a car with use of both of her arms.
(Id. at pp. 45-46).

Plaintiff shops in stores for food and

clothing and manages her own financial affairs.
46, 226).

(Id. at pp.

Plaintiff performs her own personal care without

assistance from others and can shower, dress, shave, and brush
her teeth.

(Id. at p. 44).

She watches television, reads

books, takes walks, and goes to the beach.

(Id. at pp. 46-47,

227).
The ALJ stated,
[T]he claimant’s reported activities of daily living
reveal a person capable of performing some level of
substantial gainful activity. The claimant
testified that she is unable to work due [to]
limited use of right arm and pain. However, she
also earlier reported a long list of activities of
daily living that include the following: she lives
in a house with family; cares for the family pets;
needs no reminders to take care of personal needs
and grooming; performs light household chores; can
drive a car; shops in stores; can manage her
financial affairs; watches television; takes walks;
can follow both written and spoken instructions; and
cares for her granddaughter. This information,
coupled with claimant’s testimony, where she
reported multiple activities of daily living,
further lessen her overall credibility that she can
do no work at all. In fact, this sort of activity
23

reveals a claimant who is not constantly
experiencing pain or is complete[ly] [sic] limited
by her right arm limitations. I find that the
claimant’s activities of daily living are further
proof that she is capable of performing at least a
range of light work, with appropriate
limitations....
(AR at p. 22, ECF No. 11).
Plaintiff’s testimony as to her participation in a wide
range of daily activities did not support Plaintiff’s
testimony that her pain was so severe that she could not work
at all.

Rounds v. Comm’r of Soc. Sec., 807 F.3d 996, 1006

(9th Cir. 2015) (finding that plaintiff’s engagement in daily
activities provided clear and convincing evidence for
discounting the claimant’s testimony regarding the severity of
her symptoms); Rollins v. Massanari, 261 F.3d 853, 857 (9th
Cir. 2001).
The ALJ acknowledged that Plaintiff’s daily activities
reflected that there were some limitations in the Plaintiff’s
use of her right arm.

The ALJ did not err in rejecting the

claimant’s allegations of a totally debilitating impairment.
Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (citing
Turner v. Cmm’r of Soc. Sec., 613 F.3d 1217, 1225 (9th Cir.
2010)).
Plaintiff asserts that the ALJ erred because she did not
make specific findings explaining the transferability of

24

plaintiff’s participation in daily activities to tasks in the
workplace, citing Tully v. Colvin, 943 F.Supp.2d 1157 (E.D.
Wash. Apr. 30, 2013).

(Pla.’s Reply at p. 4, ECF No. 18).

Contrary to Plaintiff’s assertion, the ALJ was not
required to explain the transferability of Plaintiff’s daily
activities.

The ALJ’s adverse credibility determination is

based on the contradictory nature of Plaintiff’s testimony.
The ALJ found that Plaintiff’s testimony that she is in near
constant pain and is fully disabled contradicts her testimony
that she is able to participate in extensive daily activities.

The Ninth Circuit Court of Appeals has held that a
plaintiff’s testimony concerning her participation in daily
activities properly forms the basis of an adverse credibility
determination when such testimony contradicts other testimony
in the record.

Orn v. Astrue, 495 F.3d 625, 629 (9th Cir.

2007) (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.
1989)).
Here, the ALJ’s adverse credibility determination is
supported by the Plaintiff’s contradictory testimony.

The

Plaintiff’s testimony as to her participation in daily
activities directly contradicted her testimony that she is in
such consistent, severe pain that she is unable to work at

25

all.

The ALJ made a detailed analysis as to the extensive

daily activities that involved both of Plaintiff’s arms.

The

ALJ properly found that this sort of activity reveals a
claimant who is not constantly experiencing pain or who is
completely limited by her right arm limitations.

(AR at p.

22, ECF No. 11).

2.

The ALJ Made Specific Findings That Plaintiff’s
Testimony Was Inconsistent With Objective
Medical Evidence In The Record

The ALJ found that the Plaintiff’s credibility regarding
the disabling degree of the pain and weakness in her right
shoulder was undermined by the objective medical evidence.
(AR at pp. 20-21, ECF No. 11).
First, the ALJ found that Plaintiff was not credible
because she failed to seek treatment for nearly three years
after her initial right shoulder injury in 2009.
21).

(Id. at p.

The ALJ stated that the three-year “gap in time, where

it appears the claimant received no treatment, lessens the
claimant’s overall credibility as it is inconsistent with the
claimant’s allegations of such severe pain and weakness.”
(Id.)
Despite Plaintiff’s claim that she was in pain since
injuring her shoulder in 2009, Plaintiff continued to work as

26

a NICU nurse in 2009, 2010, 2011, and 2012 without seeking any
form of treatment for her right shoulder injury.

The ALJ did

not err in finding that Plaintiff’s failure to seek treatment
for nearly three-years after her injury undermined Plaintiff’s
credibility.

Burch, 400 F.3d at 681; Marsh v. Colvin, 792

F.3d 1170, 1173 n.2 (9th Cir. 2015).
Second, the ALJ found that although Plaintiff’s medical
records did support the finding that Plaintiff had very
limited use of her right upper extremity, the records
demonstrated that Plaintiff had good control of her pain with
limited side effects.

(AR at p. 22, ECF No. 11).

The ALJ

stated that there were no emergency room visits for
“breakthrough pain” that would support a finding that
Plaintiff’s pain is work-preclusive.

(Id.)

There were large gaps in treatment and Plaintiff’s selfreports of pain were inconsistent.

At Plaintiff’s first

appointment with Dr. Elizabeth Ignacio on October 15, 2012,
Plaintiff reported that her pain was a “0-1” on a scale of 110 for severity.

(Id. at p. 285).

Just two weeks later, on October 30, 2012, Plaintiff
reported to Dr. Marumoto that her pain was a 9 on a scale of
1-10 with 10 being the most severe.

(Id. at p. 282).

Dr.

Marumoto’s examination did not support such a high severity of

27

pain.

Dr. Marumoto did not prescribe any pain medications to

Plaintiff despite her self-report.

Dr. Marumoto found that

Plaintiff was “alert, oriented, and nondistressed,” despite
her claim of being in severe pain.

(Id.)

Plaintiff was prescribed pain medication for the first
time nearly six months later in April 2013.

Plaintiff was

examined by Dr. Ignacio in April 2013 and Plaintiff claimed to
have “moderate” pain.

(Id. at pp. 267, 302-03).

Plaintiff

was prescribed pain and anti-inflammatory medication.
p. 319).

(Id. at

Plaintiff did not seek further medical attention for

nearly a year.
On March 13, 2014, Plaintiff was again evaluated by Dr.
Ignacio.

(Id. at p. 313).

Plaintiff reported that her pain

was “Mild” and was a 4 on a scale of 1-10.

(Id. at p. 312).

Plaintiff was offered an injection in her right shoulder for
pain but she refused.

(Id. at p. 313).

Plaintiff stated that

her pain “remained the same” and that her prescription
medications were sufficient to treat her pain.

(Id.)

The ALJ properly discounted Plaintiff’s credibility that
her pain was so severe that she was unable to work at all
because it conflicted with the objective medical evidence in
the record.

Morgan v. Comm’r of Soc. Sec., 169 F.3d 595, 600

(9th Cir. 1999); Garza v. Astrue, 380 Fed. Appx. 672, 673 (9th

28

Cir. 2010).

B.

The ALJ Did Not Err In Declining To Credit The
Conclusion Of Dr. Elizabeth Ignacio That Plaintiff
Could Not Lift Any Weight With Her Right Arm

Plaintiff argues that the ALJ erred because she did not
provide sufficient reasons for rejecting the conclusion of Dr.
Elizabeth Ignacio that Plaintiff could not lift any weight
with her right arm.

(Opening Brief at p. 14, ECF No. 16).

On June 19, 2014, more than three months after her last
examination of Plaintiff, Dr. Ignacio wrote a letter to
Plaintiff’s attorney stating that she believed that “I think,
with respect to [Plaintiff’s] shoulder, that she should be
restricted from any lifting at all with her right arm, and no
reaching away from her body other than activities of daily
living, but not for employment.”

(AR at p. 332, ECF No. 11).

The ALJ afforded some weight to Dr. Ignacio’s conclusions
as to the physical limitations of Plaintiff.

The ALJ credited

Dr. Ignacio’s determination that Plaintiff’s upper right
extremity was limited in lifting, pushing, pulling, and
reaching.

(Id. at pp. 22-23).

The ALJ discredited Dr.

Ignacio’s conclusion that Plaintiff was unable to use her
upper right extremity at all for employment.

Tommasetti, 533

F.3d at 1041 (finding the ALJ properly rejected a treating

29

physician’s opinion regarding the claimant’s limitations that
“did not mesh with her objective data or history”).
The June 2014 conclusion of Dr. Ignacio contradicted Dr.
Ignacio’s prior evaluation of Plaintiff in April 2013.

In

April 2013, Dr. Ignacio found that Plaintiff’s right shoulder
injury constituted “a significant disability that makes
employment difficult for her.”

(AR at p. 303, ECF No. 11).

The ALJ properly found that the statement “implies that
[Plaintiff] can still perform some work, as long as her right
upper extremity limitations are taken into account.”

(Id. at

p. 23).
The ALJ properly discounted Dr. Ignacio’s conclusion that
Plaintiff could not lift any weight with her right arm because
it was inconsistent with the Plaintiff’s own testimony.

The

Plaintiff herself testified that she can lift “probably about
2.5 pounds.”

(Id. at p. 39).

The ALJ may properly discredit

a treating physician’s conclusion concerning the severity of a
claimant’s limitation when it conflicts with the claimant’s
own testimony.

Molina, 674 F.3d at 1113 (citing Morgan, 169

F.3d at 600)).

C.

The ALJ Did Not Err In Relying On The Testimony Of
The Vocational Expert

At step five of the sequential evaluation process, the
30

Commissioner for Social Security Administration must show that
a claimant can perform some work that exists in significant
numbers in the national economy, taking into account the
claimant’s residual functional capacity, age, education, and
work experience.

Tackett v. Apfel, 180 F.3d 1094, 1100 (9th

Cir. 1999).
The Commissioner may satisfy this burden with testimony
of a vocational expert.

Osenbrock v. Apfel, 240 F.3d 1157,

1162 (9th Cir. 2001); 20 C.F.R. § 404.1566(e).

A vocational

expert’s recognized expertise provides the necessary
foundation to allow the ALJ to rely on his or her testimony.
Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005).

The

vocational expert’s testimony is guided by the Dictionary of
Occupational Titles, a resource complied by the United States
Department of Labor that details the specific requirements for
different occupations.

Gutierrez v. Colvin, 844 F.3d 804, 806

(9th Cir. 2016).
In this case, the ALJ posed a series of hypothetical
questions to the vocational expert.

The ALJ asked the

vocational expert a hypothetical about an individual of
claimant’s age, education and past work, who is able to lift
and carry ten pounds frequently and 20 pounds occasionally
with the left upper extremity, cannot lift, push or pull more

31

than two and a half pounds with the right upper extremity and
cannot reach in any way with the right upper extremity.
at p. 57, ECF No. 11).

(AR

The ALJ included in the residual

functional capacity the limitation that the individual can sit
for six hours in an eight hour day, can stand/walk for six
hours in an eight hour day, can never climb ladders, ropes, or
scaffolds, can never crawl, and should avoid all vibration.
(Id.)
The ALJ inquired if someone with such a residual
functional capacity would be able to perform work that was
similar to Plaintiff’s prior work as a NICU nurse.
pp. 56-57).

(Id. at

The vocational expert testified that the closest

positions in the Dictionary of Occupational Titles would be a
General Duty Nurse, Medical Records Clerk, Utilization Review
Coordinator, or Unit Clerk.

(Id. at pp. 57-59).

The

vocational expert testified that all of these positions
required bilateral use of the upper extremities and required
frequent reaching.

(Id. at pp. 59-65).

The vocational expert

stated that someone with Plaintiff’s residual functional
capacity would be precluded from performing any of these
positions.

(Id. at pp. 59-65).

Next, the ALJ inquired if there were any other types of
occupations that existed in significant numbers in the

32

national economy that someone with Plaintiff’s limitations
could perform.

(Id. at p. 65).

The vocational expert testified that an individual with
such a residual functional capacity could perform work in the
following three positions:
(1)

Usher, Dictionary of Occupational Titles Code
344.667-014, with an excess of 160 jobs in the local
economy and at least 15,000 in the national economy;

(2)

Barker, Dictionary of Occupational Titles Code
342.657-010, with around 500-600 jobs in the local
economy and at least 40,000 in the national economy;2

and
(3)

Furniture Rental Consultant, Dictionary of
Occupational Titles Code 295.357-018, with around
300 jobs in the local economy and about 36,750 in
the national economy.

(AR pp. 65-66, ECF No. 11).

2

At the hearing Plaintiff’s counsel indicated that the
“Barker” occupation is equivalent to that of a “Carney.”
Review of the Dictionary of Occupational Titles reveals that
the Barker occupation lists “Carney” and “Spieler” as
alternative titles for the occupation. The Dictionary of
Occupation Titles defines the Barker occupation as follows:
Attempts to attract patrons to entertainment by
exhorting passing public, describing attractions of
show and emphasizing variety, novelty, beauty, or
some other feature believed to incite listeners to
attend entertainment. May conduct brief fee show,
introducing performing and describing acts to be
given a feature performance.
(Dictionary of Occupational Titles Code 342.657-010, 1991 WL
672843).
33

The vocational expert’s testimony constituted substantial
evidence of Plaintiff’s ability to perform work which exists
in significant numbers in the national economy.

Tackett, 180

F.3d at 1101; Magallanes v. Bowen, 881 F.2d 747, 756-57 (9th
Cir. 1989).
ALJ’s routinely rely on the Dictionary of Occupational
Titles issued by the United States Department of Labor “in
determining the skill level of a claimant’s past work, and in
evaluating whether the claimant is able to perform other work
in the national economy.”
1276 (9th Cir. 1990).

Terry v. Sullivan, 903 F.2d 1273,

The Dictionary of Occupational Titles

is the presumptive authority on job classifications.

Johnson

v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995); see Gutierrez,
844 F.3d at 806.
The evidence shows that the ALJ considered the particular
facts of Plaintiff's case and posed a complete hypothetical
question to the vocational expert.

The ALJ incorporated the

upper right extremity limitations set out in the objective
medical reports in formulating the hypothetical question to
the vocational expert.

1.

The Vocational Expert’s Testimony Was Internally
Consistent

Plaintiff argues that the vocational expert’s testimony
34

was internally inconsistent.

Plaintiff claims it was

inconsistent for the vocational expert to testify that
Plaintiff could not perform the work of a Unit Clerk but could
perform the work of a Furniture Rental Consultant.
Each of the Dictionary of Occupational Titles positions
has different requirements.

A vocational expert’s expertise

provides the necessary foundation for his or her testimony
regarding the Dictionary of Occupational Titles and no
additional foundation is required for the ALJ to rely on his
or her testimony.

Bayliss, 427 F.3d at 1217-18.

The ALJ did not err in relying on the vocational expert’s
testimony that someone with Plaintiff’s residual functional
capacity could not perform the Unit Clerk position but could
perform the Furniture Rental Consultant position.

The

vocational expert testified that unlike the Unit Clerk
position, the Furniture Rental Consultant position required “a
limited amount of paperwork.”

(AR at p. 66, ECF No. 11).

The

vocational expert testified that such paperwork could be
performed on the lap as permitted by the residual functional
capacity.

(Id. at p. 67).

The vocational expert testified

that the large amount of paperwork required to be completed by
a Unit Clerk would preclude someone with Plaintiff’s
limitations from performing the job.

35

(Id. at p. 64).

There was nothing inconsistent about the vocational
expert’s testimony.

Gutierrez, 844 F.3d at 807-09.

The ALJ

properly relied upon the expertise of the vocational expert
that someone with Plaintiff’s residual functional capacity
could perform the job of a Furniture Rental Consultant.
Bayliss, 427 F.3d at 1217-18.

2.

The ALJ Properly Relied Upon the Vocational
Expert’s Testimony As To The Number Of Available
Usher And Barker Positions

Plaintiff argues that the ALJ erred when she relied on
the testimony of the vocational expert to determine that there
were significant number of Barker and Usher positions
available in the economy.

(Opening Brief at p. 29, ECF No.

16).
Plaintiff’s argument fails for a number of reasons.
First, even if the Court accepted Plaintiff’s argument as
to the availability of the Usher and Barker positions, the
vocational expert’s testimony as to the availability of 36,750
Furniture Rental Consultant positions in the national economy
was sufficient enough to demonstrate that a significant number
of jobs exist.

Gutierrez v. Comm’r of Soc. Sec., 740 F.3d

519, 528-29 (9th Cir. 2014) (finding that 25,000 jobs in the
national economy is enough to show a “significant number”).

36

Second, Plaintiff seeks to introduce new evidence on
appeal before the Court here as to the number of Usher and
Barker positions she believes are available.

(See Exhibits 1-

4 attached to Pla.’s Opening Brief, ECF Nos. 16-1—16-4).
Plaintiff is precluded from introducing new evidence on
appeal.

Plaintiff filed both a post-hearing brief and a brief

with the Appeals Council after the ALJ hearing.
269-74, 276-78, ECF No. 11).

(AR at pp.

Plaintiff did not submit the

evidence that she seeks to introduce before this Court to the
agency in either her post-hearing or appeals council briefs.
In Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999),
the plaintiff argued that the jobs identified by the
vocational expert at the administrative hearing did not exist
in significant numbers and attempted to introduce new
statistical evidence on appeal.

The Ninth Circuit Court of

Appeals held that the plaintiff, who was represented by
counsel at the administrative hearing, was precluded from
doing so.

Id.

The appellate court held that a claimant must

present all evidence at her administrative hearing in order to
preserve the evidence and argument in the record on appeal.
Id.
Just as in Meanel, Plaintiff disagrees with the
vocational expert’s testimony and is attempting to introduce

37

new statistical evidence on appeal that was not filed before
the agency.

Plaintiff is precluded from introducing this

evidence.
Third, the ALJ’s reliance on the testimony of the
vocational expert as to the number of relevant jobs in the
national economy was proper.

Bayliss, 427 F.3d at 1217-18.

Plaintiff argued in her post-hearing brief to the ALJ
that she conducted her own calculations using OccuBrowse and
believes the calculations are inconsistent with the vocational
expert’s testimony.

(AR at pp. 269-74, ECF No. 11).

The ALJ rejected Plaintiff’s argument.

The ALJ stated as

follows:
I also accept the numbers cited by the vocational
expert as significant. The vocational expert
testified that he relied for his numbers on Job
Browser Pro, not OccuBrowse, as representative
alleges. I credit his testimony regarding the
number of jobs in this case as based on his use of
this tool and on his considerable experience,
education, and contacts in the field of vocational
rehabilitation.
(AR at p. 25, ECF No. 11).
Plaintiff now attempts to argue that the vocational
expert’s testimony as to the numbers provided in Job Browser
Pro were incorrect.

Plaintiff’s argument is not persuasive.

Courts in the Ninth Circuit have routinely held that the ALJ
does not err in relying on the vocational expert’s testimony

38

as to the number of jobs available in the economy.

The ALJ is

not required to rely on a claimant’s lay opinion that
challenges the vocational expert’s calculations.

Edington v.

Colvin, 625 Fed. Appx. 334, 335 (9th Cir. 2015); Simmons v.
Colvin, 2016 WL 6436829, *11-12 (C.D. Cal. Oct. 31, 2016);
Early v. Colvin, 2015 WL 4231598, at *8 (W.D. Wash. July 10,
2015); Parker v. Colvin, 2014 WL 3672923, at *5-6 (D. Or. July
22, 2014); Cardone v. Colvin, 2014 WL 1516537, at *5 (C.D.
Cal. Apr. 18, 2014).
To the extent that the vocational expert’s data could be
interpreted in the way Plaintiff contends, “where the evidence
is susceptible to more than one rational interpretation, one
of which supports the ALJ’s decision, the ALJ’s conclusion
must be upheld.”

Thomas, 278 F.3d at 954.

The Court has reviewed the entire record and finds that
there is substantial evidence to support the ALJ’s decision.

CONCLUSION

The Commissioner of Social Security Administration’s
decision is AFFIRMED.

//
//
39

The Clerk of Court is Ordered to CLOSE THE CASE.
IT IS SO ORDERED.
DATED: January 25, 2017, Honolulu, Hawaii.

_________________________________
__
Helen Gillmor
United States District Judge

Judy Diane Noyes v. Carolyn W. Colvin, Social Security
Administration Commissioner; Civ. No. 16-00252 HG-KSC; ORDER
AFFIRMING THE DECISION OF THE SOCIAL SECURITY ADMINISTRATION
COMMISSIONER
40