Cajigal v. Berryhill

Filing 23

ORDER AFFIRMING ADMINISTRATIVE LAW JUDGE'S DECISION re 1 , 22 - Signed by JUDGE ALAN C. KAY on 6/15/2018. For the foregoing reasons, the Court AFFIRMS the ALJ's denial of benefits and supplemental security income to Plaintiff. (emt, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

TINA CAIJIGAL,
Plaintiff,
v.
NANCY A. BERRYHILL,
Commissioner of the
Social Security
Administration
Defendant.

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

Civ. No. 17-00478 ACK-RLP

ORDER AFFIRMING ADMINISTRATIVE LAW JUDGE’S DECISION
For the reasons below, the Court AFFIRMS the
administrative law judge’s denial of benefits and supplemental
security income to Plaintiff.
BACKGROUND
On January 30, 2014, Plaintiff Tina Cajigal (formerly
known as Tina Young) filed an application for a period of
disability and for disability insurance benefits.
Administrative Record (“AR”) 66; see also AR 21, 75.

Plaintiff

also protectively filed a Title XVI application for supplemental
security income on March 26, 2014.

AR 21, 164.

In both

applications, Plaintiff alleged disability beginning May 3,
2012.

AR 66, 162, 164.

1

Plaintiff’s claims were initially denied on September
25, 2014, AR 66-74, and upon reconsideration on February 26,
2015.

AR 91-103.

Thereafter, on March 10, 2015, Plaintiff

filed a written request for a hearing before an administrative
law judge (“ALJ”), AR 121, and a hearing was held on May 26,
2016, AR 134.

On June 27, 2016, the ALJ issued a written

decision finding Plaintiff not disabled.

AR 18-30.

Plaintiff

filed a request with the Appeals Council to review the ALJ’s
decision on August 23, 2016.

AR 160-61.

The Appeals Council

denied her request and adopted the ALJ’s decision as the final
decision of the Commission on July 21, 2017.

AR 1-4.

Plaintiff filed her complaint on September 22, 2017,
seeking a review of the denial of her applications.

ECF No. 1.

On May 1, 2018, Plaintiff filed her opening brief (“Op. Br.”).
ECF No. 17.

Defendant, the Acting Commissioner of Social

Security (“Commissioner”), filed her answering brief on May 18,
2018 (“Ans. Br.”).

ECF No. 20.

on May 25, 2018 (“Reply Br.”).

Plaintiff filed her reply brief
ECF No. 21.

The Court has scheduled a hearing on Plaintiff’s
requested review of the Commissioner’s decision at 11:00 a.m. on
Wednesday, June 13, 2018.
STANDARD
A district court has jurisdiction pursuant to 42
U.S.C. § 405(g) to review final decisions of the Commissioner of
2

Social Security. 1

A final decision by the Commissioner denying

Social Security disability benefits and supplemental security
income will not be disturbed by the reviewing district court if
the decision is free of legal error and supported by substantial
evidence.

See 42 U.S.C. § 405(g); Dale v. Colvin, 823 F.3d 941,

943 (9th Cir. 2016); Hammock v. Bowen, 879 F.2d 498, 501 (9th
Cir. 1989).
In determining the existence of substantial evidence,
the administrative record must be considered as a whole,
weighing the evidence that both supports and detracts from the
Commissioner’s factual conclusions.

See Gutierrez v. Comm’r of

Soc. Sec., 740 F.3d 519, 523 (9th Cir. 2014).

“Substantial

evidence means more than a scintilla but less than a
preponderance; it is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.”

Id.

(internal quotation marks omitted).
Moreover, “[i]f the evidence can reasonably support
either affirming or reversing, the reviewing court may not
substitute its judgment for that of the Commissioner.”

Id.

(internal quotation marks omitted); McCartey v. Massanari, 298
F.3d 1072, 1075 (9th Cir. 2002) (explaining that if “the record
1

42 U.S.C. § 1383(c)(3) incorporates the judicial review
standards of 42 U.S.C. § 405(g), making them applicable to
claims for supplemental security income.

3

considered as a whole can reasonably support either affirming or
reversing the Commissioner’s decision, we must affirm”).

This

principle recognizes the ALJ’s ability “to determine
credibility, resolve conflicts in the testimony, and resolve
ambiguities in the record.”

Treichler v. Comm’r of Soc. Sec.

Admin., 775 F.3d 1090, 1098 (9th Cir. 2014).
DISCUSSION
“To establish a claimant’s eligibility for disability
benefits under the Social Security Act, it must be shown that:
(a) the claimant suffers from a medically determinable physical
or mental impairment that can be expected to result in death or
that has lasted or can be expected to last for a continuous
period of not less than twelve months; and (b) the impairment
renders the claimant incapable of performing the work that the
claimant previously performed and incapable of performing any
other substantial gainful employment that exists in the national
economy.”

Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.

1999); see 42 U.S.C. § 423(d)(2)(A).

A claimant must satisfy

both requirements in order to qualify as “disabled” under the
Social Security Act.
I.

Tackett, 180 F.3d at 1098.

The SSA’s Five-Step Process for Determining Disability
The Social Security regulations set forth a five-step

sequential process for determining whether a claimant is
disabled.

Ukolov v. Barnhart, 420 F.3d 1002, 1003 (9th Cir.
4

2005); see 20 C.F.R. § 404.1520.

“If a claimant is found to be

‘disabled’ or ‘not disabled’ at any step in the sequence, there
is no need to consider subsequent steps.”
1003 (citations omitted in original).

Ukolov, 420 F.3d at

The claimant bears the

burden of proof as to steps one through four, but the burden
shifts to the Social Security Administration at step five.
Tackett, 180 F.3d at 1098.
At step one, the ALJ considers a claimant’s work
activity, if any.

20 C.F.R. § 404.1520(a)(4)(i).

Where the ALJ

finds the claimant is engaged in substantial gainful activity,
he will determine that the claimant is not disabled, regardless
of the claimant’s medical condition, age, education, or work
experience.

20 C.F.R. § 404.1520(b).

Substantial gainful

activity is work that is defined as both substantial—i.e. work
activity involving significant physical or mental activities—and
gainful—i.e. work activity done for pay or profit.
404.1572.

20 C.F.R. §

If the ALJ finds that the claimant is not engaged in

substantial gainful activity, the analysis proceeds to step two.
Tackett, 180 F.3d at 1098.
Step two requires the ALJ to consider the medical
severity of the claimant’s impairments.
(4)(ii).

20 C.F.R. § 404.1520(a)

Only if the claimant has an impairment or combination

of impairments that “significantly limits [her] physical or
mental ability to do basic work activities” will the analysis
5

proceed to step three.

20 C.F.R. § 404.1520(c).

If not, the

ALJ will find that the claimant is not disabled and the analysis
ends.

20 C.F.R. § 404.1520(a)(4)(ii).
The severity of the claimant’s impairments is also

considered at step three.

20 C.F.R. § 404.1520(a)(4)(iii).

There, the ALJ determines whether a claimant’s impairments meet
or medically equal the criteria of an impairment specifically
described in the regulations.
Subpart P, App. 1.

Id.; see also 20 C.F.R. Part 404,

If the impairments do meet or equal these

criteria, the claimant is deemed disabled and the analysis ends.
20 C.F.R. § 404.1520(a)(4)(iii).
to step four.

If not, the analysis proceeds

20 C.F.R. § 404.1520(e).

At step four, the ALJ determines the claimant’s
residual functional capacity (“RFC”).

Id.

An RFC is the most

the claimant can still do in a work setting despite her physical
and/or mental limitations.

20 C.F.R. § 404.1545(a)(1).

In

assessing a claimant’s RFC, the ALJ will consider all of the
relevant evidence in the claimant’s case record regarding both
severe and non-severe impairments.

20 C.F.R. § 404.1545.

This

assessment is then used to determine whether the claimant can
still perform her past relevant work.

20 C.F.R. § 404.1520(e).

Past relevant work is defined as “work that [the claimant has]
done within the past 15 years, that was substantial gainful
activity, and that lasted long enough for [the claimant] to
6

learn to do it.”

20 C.F.R. § 404.1560(b)(1).

The ALJ will find

that the claimant is not disabled if she can still perform her
past relevant work, at which point the analysis ends.
Otherwise, the ALJ moves to step five.
At the fifth and final step, the ALJ will once again
consider the claimant’s RFC—along with her age, education, and
work experience—in order to determine whether the claimant can
perform other work.

20 C.F.R. § 404.1520(a)(4)(v).

Here, the

Commissioner is responsible for providing “evidence that
demonstrates that other work exists in significant numbers in
the national economy that [the claimant] can do.”
404.1560(c)(2).

20 C.F.R. §

If the claimant is unable to perform other

work, she is deemed disabled; if she can make an adjustment to
other available work, she is considered not disabled.

20 C.F.R.

§ 404.1520(g)(1).
II.

The ALJ’s Analysis
a. Steps One, Two, and Three
At step one, the ALJ found that Plaintiff had not

engaged in gainful activity since May 3, 2012, the alleged onset
date, and at step two, that she suffered from the following
severe impairments: post laminectomy syndrome in the lumbar
spine and degenerative lumbar disc disease.

AR 23.

At step

three, the ALJ found that Plaintiff did not have an impairment
or a combination of impairments that met or medically equaled
7

the severity of an impairment listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1.

AR 24.

Plaintiff does not contest the

findings the ALJ made at these steps.
a. Steps Four and Five
At steps four and five, the ALJ determined that
Plaintiff has the RFC to perform light work.

AR 24.

The ALJ

found that Plaintiff “could not climb ladders, ropes and
scaffolds but otherwise would have occasional limitation in
postural movements; she must avoid moderate exposure to hazards;
and she must alternate positions, approximately every 30 minutes
from sitting to standing, and from standing to sitting . . . .”
AR 24.

The ALJ further determined at step four that Plaintiff

is unable to perform any past relevant work.

AR 28.

At step

five, the ALJ concluded that Plaintiff is not disabled because
there is other work she can perform in the national economy. 2

AR

29.
Based on the ALJ’s finding that Plaintiff was not
disabled, the ALJ denied Plaintiff’s applications for disability
insurance benefits and supplemental security income.

2

AR 30.

At step five, the ALJ found that considering Plaintiff’s
age, education, work experience, and residual functioning
capacity, there are jobs that exist in significant numbers in
the national economy that Plaintiff can perform. AR 29.

8

III.

The ALJ’s Development of the Record
Plaintiff contends that the ALJ erred in finding that

she could perform light work because the ALJ’s decision was
based on outdated medical records.

Op. Br. at 20; Reply at 2.

According to Plaintiff, the evidence that the ALJ considered was
“clearly outdated by a number of years prior to the time of the
May 26, 2016 Administrative hearing,” and thus the ALJ’s
decision was not supported by substantial evidence.

Op. Br. at

20.
Courts have explained that “it is the responsibility
of the ALJ, not the claimant’s physician, to determine residual
functional capacity.”

Vertigan v. Halter, 260 F.3d 1044, 1049

(9th Cir. 2001) (citing 20 C.F.R. § 404.1545).

In doing so, the

ALJ must fully and fairly develop the record and assure that the
claimant’s interests are considered.

See Tonapetyan v. Halter,

242 F.3d 1144, 1150 (9th Cir. 2001).

Where the ALJ finds the

evidence ambiguous or the record inadequate, the ALJ may
discharge its duty to develop the record by subpoenaing the
claimant’s physicians, submitting questions to the claimant’s
physicians, continuing the hearing, or keeping the record open
after the hearing to allow for supplementation of the record.
See Tonapetyan, 242 F.3d at 1150 (citing Tidwell v. Apfel, 161
F.3d 599, 602 (9th Cir. 1998)).

9

However, “[n]o authority suggests that the regulations
require the ALJ to continue developing the record until
disability is established; the regulations require only that the
ALJ assist the claimant in developing a complete record.”
Hampton v. Astrue, 2009 WL 2351703, at *11 (D. Or. July 27,
2009) (citation omitted).

The ALJ is under no duty to develop

the record further where the evidence is unambiguous and the
record is adequate.

Mayes v. Massanari, 276 F.3d 453, 460 (9th

Cir. 2001).
Plaintiff contends that the ALJ erred by failing to
“request an updated RFC from either Ms. Cajigal’s current
treating physician (Dr. Jerald Garcia) or . . . an updated RFC
to be conducted by an independent physician.”

Op. Br. at 20.

But the ALJ both left the record open for submission of
additional evidence and found Plaintiff’s condition virtually
unchanged from the time of her previous function capacity
evaluation and medical examinations.

AR 27.

Accordingly,

“[t]he ALJ was not required to order an updated RFC examination
and sufficiently met [her] duty to develop the record by leaving
the record open for submission of additional evidence.”

Garcia

v. Astrue, No. C 08-3833 MHP, 2010 WL 1293376, at *6 (N.D. Cal.
Mar. 31, 2010).
First, the ALJ left the record open following the
hearing to allow for consideration of additional evidence.
10

The

ALJ specifically left the record open to consider Dr. Peter
Diamond’s April 15, 2016 report, issued after his March 21, 2016
examination.

AR 27, 51, 63-64. 3

The ALJ concluded that the

report showed that Plaintiff’s condition was “essentially
unchanged” from Dr. Diamond’s July 2013 examination and that
Plaintiff’s condition was not deteriorating.

AR 27; see

Saavedra v. Colvin, CV 12-5238 AN, 2013 WL 3356041, at *6 (C.D.
Cal. July 3, 2013) (rejecting the claimant’s argument that the
ALJ had relied on a “remote and stale” medical opinion, because
claimant had not presented any evidence that his condition had
“worsened in the interval between the two examinations”).
Additionally, despite Plaintiff’s argument that the
ALJ should have requested an updated RFC from Dr. Garcia
(Plaintiff’s pain management doctor since July 2013, AR 26), the
ALJ considered evidence from Dr. Garcia developed in close
3

The hearing testimony shows that Dr. Diamond’s report was
the only piece of outstanding evidence that Plaintiff
identified. AR 51, 63-64; Ans. Br. at 23-24. Accordingly, the
ALJ decided to “keep the record open for . . . Dr. Diamond’s
evaluation.” AR 51. The ALJ later reiterated that he was
“leaving the record open for the additional information. After
I get that I’ll close the record. My decision itself will go
out in three or four months with a copy to you and a coy to Mr.
Rego, okay?” AR 63. Neither Plaintiff nor her attorney
objected, requested to submit additional evidence, or asked that
the record be kept open for a longer period. AR 63-64. In
contrast, both Plaintiff and her attorney agreed with the ALJ’s
decision and thanked him. AR 63-64 (Plaintiff stating: “Okay,
thank you.”; Plaintiff’s attorney stating: “Thank you very much,
Judge.”).

11

proximity to the hearing.

In determining that Plaintiff could

perform light work, the ALJ considered Dr. Garcia’s May 2015
progress notes, which described Plaintiff as having “acceptable”
gait and “acceptable” range of motion in the lumbar spine.
27; Ans. Br. at 7.

AR

Dr. Garcia’s progress notes also recorded

Plaintiff’s motor strength at 5/5 or “full.”

AR 27.

The ALJ also considered Dr. Garcia’s February 26, 2016
examination.

AR 27.

This examination, consistent with Dr.

Diamond’s examination records submitted after the hearing,
concluded with Dr. Garcia’s opinion that Plaintiff’s condition
was “relatively unchanged.”

AR 27.

And, as the ALJ noted, this

evidence was also consistent with the medical records from
Plaintiff’s treating physicians, including Dr. Peter Lum. 4

AR

26.

4

To the extent Plaintiff argues that the ALJ placed undue
emphasis on the opinions of Dr. Lum and the State agency
reviewing physicians, Op. Br. at 20-21; Reply at 2, Plaintiff
fails to explain how the these opinions were controverted by the
medical record, inconsistent with the record as a whole, or
otherwise not entitled to the weight the ALJ placed on them.
Ans. Br. at 9-13. Because the ALJ found these opinions
consistent with the record as a whole and grounded in a longterm treatment relationship, the ALJ’s reliance upon them was
consistent with the regulations applicable at the time. See 20
CFR. §§ 404.1457(c)(2)(ii), 416.927(c)(2)(ii) (“Generally, the
more knowledge a treating source has about your impairment(s)
the more weight we will give to the source’s medical opinion.”);
id. §§ 404.1527(c)(4), 416.927(c)(4) (“Generally, the more
consistent an opinion is with the record as a whole, the more
weight we will that opinion.”).

12

In sum, the ALJ found that “there is little change in
the examinations since the functional capacity evaluation in
January 2013 finding [Plaintiff] capable of light exertion.”

AR

28; see Tyler v. Colvin, No. 3:15-CV-01879-SI, 2016 WL 4059656,
at *6 (D. Or. July 28, 2016) (rejecting argument that RFC was
improperly based on outdated medical information where ALJ
considered additional evidence and compared prior medical
evidence to more recent evidence); see also Youngblood v.
Berryhill, No. 3:16-CV-05326-RJB, 2017 WL 6049438, at *3 (W.D.
Wash. Feb. 2, 2017) (“[T]hat other medical evidence was produced
after the date of the consultants’ opinions does not alone
render them stale. Instead, the ALJ must evaluate their
consistency with the entire record, including any evidence
produced after the consultants’ opinions were issued.”).
The ALJ explicitly left the record open for additional
evidence and compared more recent medical opinions with the
record as a whole. 5

Under these circumstances, the ALJ had

sufficient evidence on which to determine Plaintiff’s RFC.
Johnson v. Comm’r of Soc. Sec., No. CIV. 11-1268 JRT/SER, 2012
5

As stated above, the ALJ agreed to keep the record open
for one week to allow for consideration of Dr. Diamond’s report.
AR 51, 63-64; Ans. Br. at 23-24. Neither Plaintiff nor her
attorney objected, requested to submit additional evidence, or
asked that the record be kept open for a longer period. AR 6364.

13

WL 4328389, at *9 (D. Minn. Sept. 20, 2012) (“In sum, the Court
finds that the ALJ was not obliged to obtain an updated RFC
assessment because the record contained ample evidence to permit
an informed decision and that substantial evidence in the record
as a whole supports the ALJ’s light weight RFC determination.”).
The Court notes that Plaintiff cites no authority for the
proposition that the ALJ was required to order an updated RFC
where the ALJ found Plaintiff’s condition essentially unchanged.
IV.

Closing the Record Before Electromyography Test and
Surgical Consultation
Plaintiff next claims that the ALJ erred by closing

the record before Plaintiff had an electromyography (“EMG”) and
another surgical consultation.

Op. Br. at 23; Reply at 1.

Although the ALJ permitted Plaintiff to submit Dr. Diamond’s
supplemental report after the hearing, Plaintiff contends that
the ALJ was obligated to keep the record open to consider any
post-hearing EMG or surgical consultation.

Id. at 23-24.

Plaintiff appears to be arguing, as above, that the ALJ failed
to fully and fairly develop the record.

See Tonapetyan, 242

F.3d at 1150.
Regarding Plaintiff’s pending surgical consultation or
any future procedures, however, the ALJ stated:
There is evidence of persisting pain and
discomfort despite measures including
epidural injections, medication and physical
therapy, and I have considered the testimony
14

that [Plaintiff] was referred for another
surgical consult and that pain management
may in the future involve a spinal cord
stimulator, per her testimony. . . . The
last surgical consult of record found
further surgery not warranted.
AR 28.

As already stated, “[n]o authority suggests that the

regulations require the ALJ to continue developing the record
until disability is established; the regulations require only
that the ALJ assist the claimant in developing a complete
record.”

Hampton, 2009 WL 2351703, at *11.

The ALJ is under no

duty to develop the record further where the evidence is
unambiguous and the record is adequate.

Mayes, 276 F.3d at 460.

The Court’s review of the record indicates that the ALJ’s
statement is consistent—and Plaintiff’s argument is
inconsistent—with the testimony at the hearing and the medical
record as a whole.
Plaintiff seems to mischaracterize the medical record
and her testimony from the hearing.

First, in connection with

the purported EMG test referral, Plaintiff testified that she
saw Dr. Diamond in March or April 2016, and that he referred her
to a nerve doctor for “some kind of testing.”

AR 44-45.

Plaintiff’s attorney questioned whether Plaintiff had yet
received Dr. Diamond’s report from her March or April visit, to
which Plaintiff replied, “No, I’ve been asking for it.”
However, the ALJ left the record open after the hearing and

15

specifically considered Dr. Diamond’s April 15, 2016 report on
Plaintiff’s March 21, 2016 examination. 6

See AR 27.

The ALJ

found that Dr. Diamond’s report showed that Plaintiff’s
condition was “essentially unchanged” from Dr. Diamond’s July
2013 examination, AR 27, and the Court notes that Dr. Diamond’s
report does not seem to mention a referral for an EMG, AR 11021116. 7
Dr. Diamond’s report also opined that Plaintiff is at
“maximum medical improvement, and has not improved materially
since I saw her on 7/15/13, at which time I felt that she was
stable and ratable.”

AR 1114.

Under these circumstances, the

ALJ was under no duty to further develop the record as to Dr.
Diamond’s supposed referral of Plaintiff for an EMG.
Second, with respect to Plaintiff’s surgical
consultation, Plaintiff claims that the ALJ erred when he closed

6

Again, Dr. Diamond’s report was the only piece of
outstanding evidence Plaintiff and her attorney identified at
the hearing. AR 51, 63-64; Ans. Br. at 23-24. The ALJ agreed
to keep the record open for consideration of that report, AR 51,
and neither Plaintiff nor her attorney objected, requested to
submit additional evidence, or asked that the record be kept
open for a longer period. AR 63-64.
7

Dr. Diamond’s report does state: “The examinee has a new
symptom of headache, associated with nausea and vomiting, which
sound migraine in nature. I would suggest a neurological
consultation for this. Although it is unlikely that this is
related to the subject injury, I would defer to the neurologist
on this issue.” AR 1114.

16

the record despite Plaintiff testifying that she had “a surgical
consult pending.”

Op. Br. at 24; Reply at 1.

But Plaintiff’s

testimony at the hearing belies her current position.

Plaintiff

testified at the hearing that she “just found out” that
“worker’s comp had approved [her] in November of last year” for
a consultation with a neurosurgeon, but Plaintiff “was not told
until [her] last visit last month” to Dr. Garcia.

AR 45-46.

Plaintiff testified that Dr. Garcia informed her that
consultation with a neurosurgeon “was approved in November but
it had expired.”

AR 46 (emphasis added).

Plaintiff did not testify that she had a surgical
consultation pending at the time of the hearing.

AR 45-47.

The

ALJ did consider the testimony that Plaintiff had earlier been
approved for another surgical consult, but with the time for
that allowed consult having expired, the ALJ accurately
concluded that “[t]he last surgical consult of record found
further surgery not warranted.”

AR 28.

Plaintiff’s testimony indicates that neither a
surgical consultation nor an EMG were pending at the time of the
ALJ’s decision.

In contrast, the ALJ kept the record open to

allow for the addition of Dr. Diamond’s supplemental report, AR
63, which was the only evidence Plaintiff’s testimony made clear
was forthcoming, AR 44-45.

Considering Plaintiff’s testimony

and the ALJ’s reasoning, the Court does not conclude that the
17

ALJ failed to fully and fairly develop the record.
V.

Whether the ALJ Erred in not Crediting Plaintiff’s
Testimony at the Hearing
Plaintiff argues that the ALJ erred by discrediting

certain of her testimony.

Op. Br. at 21-23; Reply at 4-5.

In

the decision, the ALJ stated:
After careful consideration of the evidence,
I find that the claimant’s medically
determinable impairments could reasonably be
expected to cause the alleged symptoms;
however, the claimant’s statements
concerning the intensity, persistence and
limiting effects of these symptoms are not
entirely consistent with the medical
evidence in the record for the reasons
explained in this decision.
AR 25.
“An individual’s statement as to pain or other
symptoms shall not alone be conclusive evidence of disability.”
42 U.S.C. § 423(d)(5)(A).

Rather, to assess “the credibility of

a claimant’s testimony regarding subjective pain or the
intensity of symptoms, the ALJ engages in a two-step analysis.”
Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012).

The ALJ

must first “determine whether there is objective medical
evidence of an underlying impairment which could reasonably be
expected to produce the pain or other symptoms alleged.”
(citation and internal quotation marks omitted).

Id.

Once a

claimant satisfies this first step, “the ALJ can reject the
claimant’s testimony about the severity of [her] symptoms only
18

by offering specific, clear and convincing reasons for doing
so.”

Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); see

also Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014); but
see Ans. Br. at 13-14 n.4 (recognizing that the Ninth Circuit’s
“clear and convincing” standard is binding on this Court but
stating the Commissioner’s position that it is inconsistent with
the deferential “substantial evidence” standard).

The ALJ is

permitted to use “ordinary techniques of credibility
evaluation.”

Smolen, 80 F.3d at 1284.

The ALJ’s considerations

may include: “inconsistencies either in the claimant’s testimony
or between the testimony and the claimant’s conduct; unexplained
or inadequately explained failure to seek treatment or to follow
a prescribed course of treatment; and whether the claimant
engages in daily activities inconsistent with the alleged
symptoms.”

Molina, 674 F.3d at 1112.
Plaintiff contends that the ALJ ignored testimony—

supported by the independent evaluations of Dr. Diamond and Dr.
Garcia—confirming her symptoms and limitations.

Op. Br. at 22.

The ALJ’s decision, however, addressed and specifically rejected
Plaintiff’s testimony on permissible grounds.
Br. at 15.

AR. 27-28; Ans.

The ALJ first found that while there was evidence in

the record substantiating Plaintiff’s statements that she needed
to alternate between sitting and standing every thirty minutes,

19

the medical record did not substantiate her statements that she
was more limited.

AR 28.

The ALJ noted that the evidence showed little change
in the examinations since the FCE in January 2013 finding
Plaintiff capable of light exertion, and stated that the last
surgical consultation in the record determined that additional
surgery was not warranted.

AR 28.

Further, the ALJ considered

Dr. Garcia’s May 2015 progress notes, which recorded Plaintiff’s
motor strength at 5/5 or “full,” and February 2016 examination,
which characterized Plaintiff’s condition as “relatively
unchanged.”

AR 27.

These results, the ALJ found, were

consistent with Dr. Diamond’s March 2016 evaluation in which he
opined that Plaintiff was at “maximum medical improvement, and
has not improved materially since I saw her on 7/15/13, at which
time I felt that she was stable and ratable.”

AR 1114.

These

inconsistencies between the medical record and Plaintiff’s
testimony were a permissible basis on which the ALJ could make a
negative credibility finding.

AR 28; e.g., Osenbrock v. Apfel,

240 F.3d 1157, 1165–66 (9th Cir. 2001) (affirming ALJ’s
rejection of claimant’s limitations and symptoms testimony where
“neither the objective medical evidence of record nor his
subjective complaints warrant a preclusion from at least light
work”).

20

The ALJ also considered Plaintiff’s testimony about
her daily activities.

AR 28; Tommasetti v. Astrue, 533 F.3d

1035, 1039 (9th Cir. 2008) (“The ALJ may consider many factors
in weighing a claimant’s credibility, including . . . the
claimant’s daily activities.”).

The ALJ noted that Plaintiff

acknowledged performing limited household tasks like mopping,
and testified to going out for food, visiting family, driving
down the road with her seat reclined “only a little” (and
estimated that she could drive for periods of around twenty to
twenty-five minutes), watching television, and using an I-Pad.
AR 28.

This daily activity testimony, the ALJ found, undermined

Plaintiff’s testimony regarding her subjective symptoms and the
intensity of her pain.

AR 28.

And as the Commissioner points

out, Plaintiff has not challenged the ALJ’s finding that her
daily activities were inconsistent with her alleged disability.
Ans. Br. at 14, 18.

Even if Plaintiff had challenged this

finding, however, the Court concludes that these reasons for
rejecting Plaintiff’s testimony were specific, clear and
convincing.
Finally, the ALJ noted that Plaintiff participated in
a vocational rehabilitation program and sought employment.
26.

AR

Despite Plaintiff’s contention that the ALJ’s reasoning

“penalized” her for enrolling in the program, Reply at 4,
Plaintiff’s participation therein is a proper ground on which to
21

discredit her subjective pain testimony.

E.g., Macri v. Chater,

93 F.3d 540, 544 (9th Cir. 1996) (affirming ALJ’s rejection of
claimant’s subjective pain complaints because, among other
things, claimant “completed an electronics training course in
1984 and unsuccessfully sought work in the field”).
Considering Plaintiff’s testimony about her daily
activities, along with the ALJ’s evaluation of the medical
record, the ALJ stated that the RFC determination was “supported
by the nature of the activities of daily living [in which
Plaintiff engaged] and the medical history.”

AR 28.

The Court

finds that nothing in the record shows the ALJ arbitrarily
disregarded Plaintiff’s testimony in making this determination.
VI.

Whether the Vocational Expert Testimony was Based Upon
Improper Hypotheticals
Plaintiff argues that the ALJ propounded inaccurate

hypothetical questions to the vocational expert (“VE”).
at 25-27; Reply at 8.

Op. Br.

At step five of the process for

determining disability, the Commissioner has the burden “to
demonstrate that the claimant is not disabled and can engage in
work that exists in significant numbers in the national
economy.”

Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012).

“The ALJ may meet [her] burden at step five by asking a
vocational expert a hypothetical question based on medical
assumptions supported by substantial evidence in the record and

22

reflecting all [of] the claimant’s limitations, both physical
and mental, supported by the record.”

Id.

“Unless the record

indicates that the ALJ had specific and legitimate reasons for
disbelieving a claimant’s testimony as to subjective limitations
such as pain, those limitations must be included in the
hypothetical in order for the vocational expert’s testimony to
have any evidentiary value.”

Embrey v. Bowen, 849 F.2d 418, 422

(9th Cir. 1988).
The ALJ found that there was evidence substantiating
Plaintiff’s statements that she needed to alternate between
sitting and standing every thirty minutes due to pain, but found
that the medical record did not substantiate her statements that
she was more limited.

AR 28.

Plaintiff’s testimony that the

ALJ found to be unsubstantiated, for example, included her
subjective pain testimony regarding shooting pains down her leg
and her need to lie down frequently.

AR 28, 49.

Accordingly,

the ALJ determined that Plaintiff had an RFC to perform light
work, but “could not climb ladders, ropes and scaffolds but
otherwise would have occasional limitation in postural
movements; she must avoid moderate exposure to hazards; and she
must alternate positions, approximately every 30 minutes from
sitting to standing, and from standing to sitting . . . .”
24.

23

AR

Consistent with this determination, the ALJ’s first
hypothetical to the VE asked:

“[A]ssume a person of claimant’s

age, education and prior work experience who’s able to perform
light work with no ladders, ropes and scaffolds with occasional
postural, and further the individual would need to avoid
moderate exposure to hazards. Would such a person be able to
perform any of the prior work?”

AR 57.

The VE answered “Yes,

Your Honor, it looks like pretty much all of it would fit.
don’t see any reason why not.”

I

AR 57.

The ALJ then, incorporating Plaintiff’s limitations
ultimately found to be substantiated, said:

“[I]f we add to

hypothetical one [that] the person would have to alternate
positions approximately every 30 minutes from sitting to
standing and from standing to sitting[,] what impact might that
have on the prior work?”

AR 57.

This hypothetical—which

ultimately served as the basis for the ALJ’s determination—was
appropriately based on the ALJ’s interpretation of the evidence
in the record as a whole because the ALJ was not required to
include limitations found to be unsupported by substantial
evidence.

See Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir.

1989) (explaining that an ALJ is not bound to accept limitations
that are not supported by substantial evidence); Embrey, 849
F.2d at 422-23 (explaining that hypothetical that ultimately

24

serves as the basis for the ALJ’s determination must be
supported by substantial evidence).
After the ALJ posed this hypothetical to the VE, the
VE responded that Plaintiff would be unable to perform prior
work but could perform:
[S]it stand jobs like such as a cashier II.
This is DOT 211.462-010. It’s light work.
There are approximately 85,000 such people
so employed nationally in a manner that fits
the hypothetical, that is, that allows sit,
stand option while you’re still continuing
to work throughout. . . . The second job
would be storage facility rental clerk.
This is DOT 295.367-026. It’s light work,
SVP 2 and there are approximately 12,000
such people so employed nationally in a
manner, again, that fits the hypothetical. .
. . Third job would be arcade attendant.
This is DOT 342.667-014. It’s light work.
It’s SVP 2. There are approximately 15,000
such people so employed nationally in a
manner that fits the hypothetical. . . . And
those are three examples your honor.
AR 57-58.
The ALJ continued to pose various hypotheticals to the
VE.

AR 56-62.

These hypotheticals required the VE to consider

the effect of various limitations to which Plaintiff testified
on Plaintiff’s prospects for employment.

Id.

For example, the

ALJ asked the VE about the employment prospects for an
“individual [who] would need to lay down two hours in an eight
hour day,” and an “individual . . . [who] would be off task 15
percent for a variety of reasons, medication, pain, etcetera . .

25

. .” AR 61.

The hypothetical on which the ALJ ultimately

relied, however, included the limitations the ALJ found to be
credible and supported by substantial evidence, and omitted the
limitations the ALJ found unsubstantiated. 8

AR 57.

The ALJ’s reliance on the VE’s testimony thus did not
result in error.

Bayliss v. Barnhart, 427 F.3d 1211, 1217-18

(9th Cir. 2005) (recognizing that an ALJ must include all
limitations supported by substantial evidence in a hypothetical
question to the vocational expert, but may exclude unsupported
limitations and disregard VE testimony premised on such
limitations); Hahn v. Berryhill, No. 16-35797, 2017 WL 6139724,
at *1 (9th Cir. Dec. 8, 2017) (“The ALJ properly omitted the
evidence he discounted, and did not provide an incomplete
hypothetical to the VE.

The ALJ’s reliance on the VE’s

testimony did not result in error.”).
Moreover, Plaintiff has not demonstrated any
deficiency in the ALJ’s hypothetical questions posed to the VE.
Bayliss, 427 F.3d at 1217-18; see also Osenbrock, 240 F.3d at
1163–64 (holding that an ALJ’s hypothetical need not include
8

For this reason, the hypothetical on which the ALJ
ultimately relied did not require the VE to consider the effect
of Plaintiff’s other supposed limitations, such as Plaintiff’s
need to lay down for two hours during an eight-hour work day.
E.g., Reply at 8. The ALJ’s hypotheticals need only include all
the limitations supported by substantial evidence. Bayliss, 427
F.3d at 1217-18.

26

properly rejected limitations).

For example, Plaintiff argues

that the ALJ’s hypotheticals were incorrect because the ALJ did
not make an RFC finding, Op. Br. at 25, but the ALJ explicitly
found that Plaintiff has the RFC to “perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b) except she could
not climb ladders, ropes and scaffolds . . . ; she must avoid
moderate exposure to hazards; and she must alternate positions,
approximately every 30 minutes from sitting to standing, and
from standing to sitting.”

AR 24.

The ALJ then incorporated

this RFC and Plaintiff’s substantiated limitations into the
hypotheticals propounded to the VE.

AR 57.

Plaintiff’s

arguments against the propriety of the ALJ’s RFC finding cannot
be repackaged as an argument against the ALJ’s hypotheticals.
See Stubbs–Danielson v. Astrue, 539 F.3d 1169, 1175-76 (9th Cir.
2008) (rejecting a claimant’s argument that a hypothetical
question was incomplete when the claimant simply restated her
arguments against the RFC finding).
Plaintiff also states that the VE:

(1) was precluded

from answering counsel’s question regarding a parking lot
attendant job; and (2) did not have access to the medical
records and thus “basically could ignore” Plaintiff’s medical
records in answering the hypotheticals.

Op. Br. at 26.

Plaintiff’s arguments misapprehend the role of the VE.

At step

five, vocational experts assist ALJs by testifying about: “(1)
27

what jobs the claimant, given his or her residual functional
capacity, would be able to do; and (2) the availability of such
jobs in the national economy.”

Tackett, 180 F.3d at 1101.

To

do so, the ALJ “poses hypothetical questions to the vocational
expert that ‘set out all of the claimant’s impairments’ for the
vocational expert’s consideration.”

Id. (quoting Gamer v. Sec’y

of Health and Human Servs., 815 F.2d 1275, 1279 (9th Cir.
1987)).

“The ALJ must construct hypotheticals supported by the

medical record, and is permitted to disregard Plaintiff’s
subjective complaints if the ALJ finds such complaints to lack
credibility.”

Jose v. Colvin, No. 16-00072 JMS-KJM, 2016 WL

6476943, at *10 (D. Haw. Nov. 1, 2016) (citation omitted).
With these principles in mind, the testimony at the
hearing shows that no error occurred.

There, in response to the

VE’s testimony that Plaintiff could perform cashier II jobs
(which are done “typically in a workstation or a booth or a
parking lot station,” AR 62), Plaintiff’s attorney asked:
I go to parking lots all the time so let’s
talk about that one. Doesn’t the parking
lot attendant have to always bend and stand
and give tickets out to people[?] They also
have to check occasionally the machinery.
They have to even sometimes adjust the
gates. Could [Plaintiff] do something like
that based on her limitations in the record?
AR 62.

The VE responded:

the job I gave.”

AR 62.

“Are you talking about, that’s not
And the ALJ then stated:

28

“That’s not

an appropriate question for the vocational expert. . . . He
doesn’t have access to the medical records nor is he a medical
expert.”

AR 62-63.

Plaintiff’s counsel responded, “Oh, I see.

You don’t have access to the medical records. . . . I’m sorry.”
AR 63.
First, Plaintiff’s counsel’s question—“Could
[Plaintiff] do something like that based on her limitations in
the record?”—is not a proper question for a VE, who responds to
an ALJ’s hypotheticals rooted in the ALJ’s evaluation of the
medical record.

E.g., Sample v. Schweiker, 694 F.2d 639, 643

(9th Cir. 1982) (“The [ALJ] weighs the evidence for probity and
credibility.

The [VE] merely translates factual scenarios into

realistic job market probabilities.”).

The VE has no

independent authority to decide which limitations in the record
are substantiated and which are not.

Wallace v. Barnhart, 62 F.

App’x 823, 826 (9th Cir. 2003) (“The vocational expert’s role is
to translate factual scenarios into realistic job market
probabilities, . . . not to evaluate medical evidence.”)
(citation and internal quotation marks omitted); see also
Sample, 694 F.2d at 644 (explaining that determining the
validity of medical opinions is a “function . . . uniquely
within the ambit of the ALJ . . . .”).
Second, the ALJ’s response—that the VE does not have
access to the medical record—is accurate and reflects that the
29

ALJ’s hypotheticals, where properly framed, include the
limitations the ALJ finds substantiated by the medical record.
Cf. Williams v. Astrue, No. CV 09-1278-MO, 2011 WL 1059124, at
*4 (D. Or. Mar. 21, 2011), aff’d sub nom. Williams v. Comm’r of
Soc. Sec. Admin., 494 F. App’x 766 (9th Cir. 2012)
(“[I]ndependently reviewing and interpreting medical reports is
precisely the ALJ’s function.

20 C.F.R. § 404.1527(e).”).

Additionally, as the VE attempted to clarify at the
hearing, the VE never suggested that Plaintiff could perform
work as a “parking lot attendant.”

The VE instead opined that

Plaintiff could perform cashier II jobs (which are done
“typically in a workstation or a booth or a parking lot
station,” AR 62).

Plaintiff’s attorney’s question was thus

inaccurate, leaving aside any other considerations.
In sum, the VE answered complete hypotheticals based
on Plaintiff’s age, education, work experience, and RFC.

The

exclusion of a single question about a single type of employment
disconnected from the VE’s actual testimony (such as Plaintiff’s
attorney’s aforesaid question about parking lot attendants) and
dependent on an analysis of the medical record does not show
that the ALJ erred.

30

CONCLUSION
For the foregoing reasons, the Court AFFIRMS the ALJ’s
denial of benefits and supplemental security income to
Plaintiff.
IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, June 15, 2018.

________________________________
Alan C. Kay
Sr. United States District Judge

Cajigal v. Berryhill, Civ. No. 17-00478 ACK-RLP, Order Affirming
Administrative Law Judge’s Decision.

31