Fisher v. Astrue

Filing 24

ORDER denying 14 Plaintiff's Motion for Summary Judgment and granting 20 Defendant's Motion for Summary Judgment. Signed by Magistrate Carolyn S Ostby on 2/22/2012. (JDH, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
CV 11-26-BLG-CSO

CRAIG M. FISHER,

ORDER GRANTING
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT

Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

Plaintiff Craig M. Fisher [Fisher] seeks judicial review of the
Defendant Commissioner of Social Security’s [Commissioner’s] denial of
his application for disability insurance benefits [DIB] and supplemental
security income [SSI] under Titles II and XVI of the Social Security Act,
42 U.S.C. §§ 401-433, 1381-1383(c). Court Doc. 1. Pursuant to the
parties’ consent, this case is assigned to the undersigned judge for all
further proceedings, including entry of judgment. Court Doc. 9.
Now pending are the parties’ cross-motions for summary
judgment. For the reasons stated below, Fisher=s motion will be denied,

1

the Commissioner=s motion will be granted, and the denial of Fisher’s
DIB and SSI will be affirmed.
I.

PROCEDURAL BACKGROUND
Fisher is a 60-year-old male who seeks DIB and SSI based on

morbid obesity, hypertension, diabetes mellitus type 2, atrial
fibrillation, prostatism (benign prostatic hypertrophy), probable carpal
tunnel syndrome, and probable knee arthritis. Court Doc. 15 at 3; Tr.
at 17-19.
Fisher applied for DIB and SSI on three separate occasions:
November 14, 2002, June 30, 2005, and December 21, 2007. All three
applications alleged an inability to work since January 30, 2002, and all
three applications were denied. Tr. at 15; Court Doc. 15 at 2.
Fisher’s most recent application was denied at the administrative
level on May 2, 2008, and on reconsideration on July 23, 2008. At
Fisher’s request, ALJ Kilroy held a hearing on May 21, 2009. Tr. at 2796. The ALJ then issued a decision denying Fisher SSI and DIB on
September 11, 2009. Tr. at 15. The Appeals Counsel denied a review of
the ALJ’s decision on January 25, 2011, and he appealed to this Court

2

on March 14, 2011.
II.

STANDARD OF REVIEW
This Court=s review is limited. The Court may set aside the

Commissioner=s decision only where the decision is not supported by
substantial evidence or where the decision is based on legal error. Ryan
v. Commr. of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008); 42 U.S.C. '
405(g). ASubstantial evidence is more than a mere scintilla, but less
than a preponderance.@ Id. (citing Bayliss v. Barnhart, 427 F.3d 1211,
1214 n. 1 (9th Cir. 2005) (internal quotations omitted)). AIt is such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.@ Id. (internal quotation marks and citation
omitted).
This Court must consider the record as a whole, weighing both the
evidence that supports and detracts from the Commissioner=s
conclusion, and cannot affirm the ALJ Aby isolating a specific quantum
of supporting evidence.@ Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882
(9th Cir. 2006) (internal quotation marks and citation omitted). The
ALJ is responsible for determining credibility, resolving conflicts in

3

medical testimony, and resolving ambiguities. Hegel v. Astrue, 325
Fed.Appx. 580 (9th Cir. 2009) (citing Andrews v. Shalala, 53 F.3d 1035,
1039 (9th Cir.1995)).
AWhere 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 v. Barnhart, 278 F.3d 947, 954 (9th
Cir. 2002) (internal citation omitted).
III.

BURDEN OF PROOF
A claimant is disabled for purposes of the Act if: (1) the claimant

has a 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 twelve months, and (2) the
impairment or impairments are of such severity that, considering the
claimant=s age, education, and work experience, the claimant is not only
unable to perform previous work, but the claimant cannot Aengage in
any other kind of substantial gainful work which exists in the national
economy.@ Schneider v. Commr., 223 F.3d 968, 974 (9th Cir. 2000)
(citing 42 U.S.C. ' 1382c(a)(3)(A)-(B)); 20 C.F.R. ' 416.905(a).
In determining whether a claimant is disabled, the Commissioner

4

follows a five-step sequential evaluation process. Tackett v. Apfel, 180
F.3d 1094, 1098 (9th Cir. 1999); 20 C.F.R. '' 404.1520(a)(4)(I)-(v),
416.920(a)(4)(I)-(v).
1.

The claimant must show that he or she is not currently
engaged in substantial gainful activity. Tackett, 180 F.3d at
1098.

2.

If not so engaged, the claimant must show that he or she has
a severe impairment. Id.

3.

The claimant is conclusively presumed disabled if his or her
impairments meet or medically equal one contained in the
Listing of Impairments described in 20 C.F.R. Pt. 404,
Subpt. P, App. 1 (hereafter AListing of Impairments@). Id. If
the claimant=s impairments do not meet or medically equal
one listed in the regulations, the analysis must proceed to
the fourth step.

4.

If the claimant is still able to perform his or her past
relevant work, he or she is not disabled and the analysis
ends here. Id. AIf the claimant cannot do any work he or she
did in the past, then the claimant=s case cannot be resolved
at [this step] and the evaluation proceeds to the fifth and
final step.@ Id. at 1098-99.

5.

If the claimant is unable to perform his or her past relevant
work due to a Asevere impairment (or because [he or she
does] not have any past relevant work)@ the court will
determine if the claimant is able to make an adjustment to
perform other work, in light of his or her residual functional
capacity, age, education, and work experience. 20 C.F.R. ''
404.1520(g), 416.920(g). If an adjustment to other work is
possible then the claimant is not disabled. Tackett, 180 F.3d
at 1099.

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The claimant bears the burden of proof at steps one through four,
but at the fifth step the Commissioner bears the burden of establishing
that there is other work in significant numbers in the national economy
that the claimant can perform. Tackett, 180 F.3d at 1099. The
Commissioner can meet this burden via the testimony of a vocational
expert or reference to the Medical-Vocational Guidelines at 20 C.F.R.
Pt. 404, Subpt. P, App. 2.; Tackett, 180 F.3d at 1099. If the
Commissioner is unable to meet this burden, then the claimant is
disabled and entitled to benefits. Tackett, 180 F.3d at1099.
IV.

THE ALJ=s OPINION
In determining that Fisher was not eligible for SSI or DIB, the

ALJ followed the applicable sequential evaluation process for
determining disability. Tr. at 17-24; Tackett, 180 F.3d at 1098-99.
First, the ALJ found that Fisher had seven severe impairments: (1)
morbid obesity, (2) hypertension, (3) diabetes mellitus type 2, (4) atrial
fibrillation, (5) prostatism (benign prostatic hypertrophy), (6) probable
carpal tunnel syndrome, and (7) probable knee arthritis by history. Tr.
at 17-19.
Second, the ALJ found that none of these impairments, nor a

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combination thereof, met or medically equaled the listed impairments in
10 C.F.R. Part 404, Subpart P, Appendix 1. Tr. at 19. The ALJ
explained that in reaching his conclusion, he “placed a special review on
listings 1.02, 4.02, 4.04, 4.05, 9.08, and considered pain as well as
potential combined effects of obesity pursuant to SSR 02-1p.” Id.
Next, the ALJ found that Fisher has the residual functional
capacity to perform light work, as defined in 20 C.F.R. §§ 404.1567(b)
and 416.967(b). Id. The ALJ qualified this with a number of specific
limitations and then discussed those qualifications and his reasons for
finding Fisher’s specific residual functional capacity [RFC]. Tr. 19-24.
The ALJ then found that Fisher was capable of performing past
relevant work as a “habilitation tech II (DOT #195.227-010),” which fit
the limitations of Fisher’s RFC. Tr. at 24. The ALJ explained that this
finding was enough to establish that Fisher was not disabled, but also
offered that “in the alternative… considering the claimant’s age,
education, work experience, and residual functional capacity, there are
other jobs that exist in significant numbers in the national economy
that the claimant can also perform.” Id.
The ALJ then discussed the testimony of the vocational expert

7

[VE] and examined Fisher under the framework of the MedicalVocational Guidelines, Rule 202.15 and 202.07. Tr. at 24-25. Through
that analysis, the ALJ established that a finding of “not disabled” was
appropriate under the framework, and concluded that Fisher “has not
been under a disability, as defined by the Social Security Act, from
January 30, 2002 through the date of this decision.” Tr. at 25.
V.

THE PARTIES= ARGUMENTS
A.

Fisher=s Arguments

Fisher makes several arguments throughout his two briefs.
Court Doc. 15 and 23. First, Fisher argues that the ALJ did not give
proper weight to Dr. Schiffert’s findings and opinions. Court Doc. 15 at
8, 12-25; Court Doc. 23 at 2-5. Citing 20 C.F.R. § 404.1527(d)(2), Fisher
asserts that the ALJ disregarded the findings of Dr. Schiffert, his
treating physician. Fisher argues that controlling weight must be given
to the opinions of a treating physician. Court Doc. 15 at 12-14. Fisher
maintains that such opinions may only be disregarded after the ALJ
has given specific reasons for doing so, supported by substantial
evidence in the record. Id. at 14-15. Fisher contends that the objective
medical evidence, which the ALJ disregarded, support the claimed

8

functional limitations.
Fisher claims that the ALJ failed to comply with the Social
Security Administration’s regulations – especially SSR 96-5p –
concerning a treating physician’s statements relative to the ultimate
issue reserved to the Commissioner. Court Doc. 15 at 12, 15-19; Court
Doc. 23 at 5. Fisher asserts that Dr. Schiffert’s opinions about Fisher’s
functional limitations (made in February and May of 2009) go to the
ultimate issue to be decided by the commissioner, and therefore the ALJ
was required to “make every reasonable effort to recontact” Dr. Schiffert
for clarification. Court Doc. 15 at 15-16; Court Doc. 23 at 5.
In addition, Fisher argues that the ALJ improperly found that he
was not credible. Court Doc. 15 at 4-5, 12, 26-30. Fisher maintains that
the ALJ mischaracterized his testimony about his enlarged prostate and
the frequency and duration of his urination. Court Doc. 15 at 26.
Fisher also claims that the ALJ failed to point to specific facts that
supported his credibility determination, as required by the Ninth
Circuit. Id. at 27-30. Fisher argues that there is ample evidence to
support his testimony within the medical record. Id. at 30-36.
Fisher also argues that the only hypothetical question posed to the

9

VE that included all of Fishers limitations produced a determination of
inability to work. Court Doc. 15 at 36. For this reason, and the other
reasons he discusses, Fisher argues that this Court should either
reverse or remand his case. Court Doc. 15 at 37.
B.

The Commissioner=s Arguments

The Commissioner first asserts that substantial evidence supports
the RFC found by the ALJ. Court Doc. 21 at 3-5. The Commissioner
states that the ALJ’s finding of an RFC of light work “was largely in
accord with” the opinions of Dr. Donaldson, Dr. Schiffert, and “was
deferential” to Fisher’s subjective complaints. Id. at 5.
The Commissioner asserts that it was reasonable for the ALJ to
give less weight to portions of Dr. Schiffert’s findings, where they were
contradicted by other parts of the record. Id. at 5-8. The Commissioner
argues that portions of Dr. Schiffert’s May 2009 opinion differ from his
February 2009 opinion in ways that are inconsistent with the objective
medical evidence. Id. at 6-7. The Commissioner claims that the ALJ
was correct to give the changed opinion less weight, not only because it
was inconsistent, but also because it went to an ultimate issue reserved
for the Commissioner – Fisher’s functional capacity. Id. at 7.

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The Commissioner argues that the ALJ weighed Fisher’s
testimony against the rest of the record and reasonably concluded that
Fisher was not entirely credible. Id. at 8-12. The Commissioner
maintains that the ALJ properly considered the factors required by
various Ninth Circuit precedents including inconsistencies between the
testimony and the objective medical record. Id.
Finally, the Commissioner argues that if this Court should find
error with the ALJ (which the Commissioner does not concede) the
appropriate relief is remand, not an award of benefits. Id. at 12-15.
The Commissioner maintains that Fisher must be actually disabled to
be entitled to benefits, no matter how egregious an ALJ’s error may be.
Id. at 12-13. Since Fisher is not, in fact, disabled, the Commissioner
asserts that the only available remedy is remand and not an award of
benefits. Id. at 12-14.

VI.

DISCUSSION
The primary issues before the Court are whether substantial

evidence supports the ALJ=s decision, and whether the ALJ=s decision is
free of legal error. Applying controlling Ninth Circuit authority, the

11

Court concludes that the ALJ=s decision is based on substantial
evidence and contains no legal error. For the reasons set forth below,
the Court finds Fisher’s arguments unpersuasive.
A.

The ALJ gave proper weight and consideration
to Dr. Schiffert’s findings and opinions.

A treating source is defined as a “physician, psychologist, or other
acceptable medical source” who has provided a claimant with “medical
treatment or evaluation and who has, or has had, an ongoing treatment
relationship with” the claimant. 20 CFR § 404.1502; see also SSR 962p. The parties agree that Dr. Schiffert is a treating physician. Court
Doc. 15 at 8; Court Doc. 21 at 6.
The Ninth Circuit has held that Amore weight should be given to
the opinion of a treating source than to the opinion of doctors who do
not treat the claimant. At least where the treating doctor=s opinion is
not contradicted by another doctor, it may be rejected only for >clear and
convincing= reasons.” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996)
(citations omitted); see also 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2).
Even if the treating doctor’s opinion is contradicted by another doctor,
the Commissioner may not reject his opinion without providing “specific

12

and legitimate reasons” supported by substantial evidence in the record.
Lester v. Chater, 81 F.3d at 830. Even if the treating doctor’s opinion is
contradicted by another doctor, the Commissioner may not reject his
opinion without providing “specific and legitimate reasons” supported
by substantial evidence in the record for so doing. Id.
i.

The ALJ properly declined to give Dr. Schiffert’s
opinion controlling weight on a matter reserved
to the Commissioner.

In general, if a medical opinion is inconsistent with other
substantial evidence in the record, or is not “well supported by
medically acceptable clinical and laboratory diagnostic techniques” then
it is not entitled to controlling weight. SSR 96-2p; 20 C.F.R. §§
404.1527(d)(2), 416.927(d)(2). When confronted with conflicting medical
opinions, an ALJ need not accept a treating physician’s opinion that is
conclusory and brief and unsupported by clinical findings. Matney v.
Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992). Additionally, an ALJ may
reject a physician=s opinion if it is based upon a claimant=s subjective
complaints. Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001).
More importantly, “the adjudicator is specifically precluded from
giving any special significance to the source: e.g., giving a treating

13

source’s opinion controlling weight, when weighing these opinions on
issues reserved to the Commissioner.” SSR 96-5pl; see also 20 C.F.R. §§
404.1527(e)(2) and 416.927(e)(2). The ALJ directly addressed this issue
by stating:
Dr. Schiffert has offered two different opinions regarding the
claimant’s residual functional capacity. These opinions cannot be
afforded controlling weight since the issue is reserved solely to the
Commissioner, but Dr. Schiffert has treated the claimant since
November 2008 and his opinions on this issue were carefully
considered in determining the claimant’s residual functional
capacity.
Tr. at 23.
In addition to this specific reason for not giving Dr. Schiffert’s
ultimate opinions controlling weight, the ALJ also gave additional
reasons. The ALJ discussed conflicts between Dr. Schiffert’s two
different opinions – one in February of 2009 (Tr. at 330-336), and one in
May of 2009 (Tr. at 350-353). Tr. at 23. The ALJ highlighted
inconsistencies between the two opinions, inconsistencies with Dr.
Schiffert’s own notes, and inconsistencies between the opinions and the
rest of the medical record. Id. The ALJ noted that the medical records
disclosed “no significant change for the worse in the claimant’s condition
in the three months between the assessment forms….” and also pointed

14

out that Dr. Schiffert’s May 2009 opinion (the opinion to which he
decided to give less weight) was substantially based on Fisher’s own
subjective complaints. Id. (noting, for example, that Dr. Schiffert’s May
2009 opinion indicated that Fisher had constant knee and chronic back
pain in the past three years, even though Dr. Schiffert only began
examining Fisher in November 2008 and earlier treatment notes of
other providers revealed few complaints regarding knee pain and no
complaints about constant back pain).
The ALJ also noted that he considered the opinion of the State
agency medical consultant, who concluded that the claimant was able to
lift 50 pounds occasionally and 25 pounds frequently, stand/walk about
6 hours in an 8-hour workday, and sit about 6 hours in an 8-hour
workday. This consultant also concluded that the claimant was able to
balance and stoop frequently, kneel, crouch and crawl occasionally, and
stair climb occasionally – although the ALJ reduced his RFC findings
based on additional evidence and testimony at the hearing. Tr. at 23.
It should also be noted that, even without giving Dr. Schiffert’s
opinions controlling weight, the ALJ reached conclusions that were very
similar to Dr. Schiffert’s February 2009 assessment. This is best

15

evidenced by the final sentence of the ALJ’s RFC finding, in which he
states that “[t]his assessment is not identical in all respects but is very
similar to Dr. Schiffert’s medical assessment of the claimant’s ability,”
made in February of 2009. Tr. at 23, 256-263.
The Court finds that the ALJ thus gave clear and convincing
reasons for his decision not to give Dr. Schiffert’s opinion controlling
weight. The ALJ complied with the requirements of the Social Security
Administration [SSA] and the Ninth Circuit. SSR 96-5p; SSR 96-2p;
Lester, 81 F.3d at 830; Tonapetyan, 242 F.3d at 1149.
In arguing that the ALJ did not give Dr. Schiffert’s opinion the
correct weight, Fisher effectively asks the Court to reweigh the medical
evidence and to arrive at a conclusion different from that of the ALJ.
Court Doc. 15 at 12-30. The Court is not permitted to do so. Ryan, 528
F.3d at 1198. Even in those instances in which the evidence is
susceptible to more than one rational interpretation, the Court must
uphold the ALJ=s interpretation if it is supported by substantial evidence.
Thomas, 278 F.3d at 954. With respect to the weight given to Dr.
Schiffert’s opinions, the Court can only review the ALJ’s decision for legal
error. Ryan, 528 F.3d at 1198. There was no such error here.

16

ii.

The ALJ was not required to contact Dr.
Schiffert for clarification of his opinions.

Based on SSR 96-5p, Fisher argues that the ALJ was required to
contact Dr. Schiffert for clarification of Dr. Schiffert’s opinions on the
issues reserved to the Commissioner. Court Doc. 23 at 5. SSR 96-5p
explains that “if the evidence does not support a treating source’s
opinion on any issue reserved to the Commissioner and the adjudicator
cannot ascertain the basis of the opinion from the case record, the
adjudicator must make ‘every reasonable effort’ to recontact the source
for clarification of the reasons for the opinion.”
But here the ALJ explained his assessment of the basis of Dr.
Schiffert’s opinions. Tr. at 23. The ALJ found that Dr. Schiffert’s
February 2009 opinion matched Dr. Schiffert’s own treatment records
(upon which it must therefore have been based). Id. As above noted,
the ALJ also specifically stated that the May 2009 opinion was “heavily
based on the claimant’s subjective complaints.” Id. The ALJ was thus
not required by SSR 96-5p to recontact Dr. Schiffert.
B.

The ALJ properly considered inconsistencies in
the record to assess Fisher’s credibility.

The ALJ may, after engaging in the appropriate analysis, reject a

17

claimant=s subjective testimony about the severity of symptoms, but he
must cite specific, clear, and convincing reasons for doing so. Lockwood
v. Comm’r Soc. Sec.,397 Fed. Appx. 288 (9th Cir. 2010). To assess
credibility in this manner, the ALJ may consider ordinary evaluation
techniques, including any unexplained or inadequately explained
failure to seek or follow treatment, and the claimant=s daily activities.
Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). However,
A[g]eneral findings are insufficient; rather, the ALJ must identify what
testimony is not credible and what evidence undermines the claimant=s
complaint.@ Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (quoting
Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)).
The ALJ may take the lack of objective medical evidence into
consideration when assessing credibility. Batson v. Commissioner of
Social Security Administration, 359 F.3d 1190, 1196 (9th Cir. 2004).
Inconsistencies in testimony may also be factored in such an
assessment. Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007) (citing
Fair, 885 F.2d at 603). The ALJ must also consider the following
factors: the location, duration, and intensity of pain; precipitating and
aggravating factors; type, dosage, effectiveness, and side effects of any

18

medication; treatment, other than medication, for relief of pain;
functional restrictions; and the claimant=s daily activities. 20 C.F.R. '
416.929(c)(3).
Here, the ALJ gave specific, clear, and convincing reasons for
finding that Fisher’s testimony about the “intensity, persistence and
limiting effects of these symptoms are not credible to the extent they
are inconsistent” with the ALJ’s RFC finding. Tr. at 21. The ALJ
highlighted Fisher’s inconsistent statements as well as inconsistencies
between medical findings and the symptoms that Fisher alleged. Id.
The ALJ explicitly discussed the factors he had to consider (Tr. at 20)
and then discussed each of those factors in turn. Tr. at 20-22. The ALJ
also considered additional factors including that “none of the claimant’s
physicians described him as being disabled or even imposed physical
work-related restrictions upon him at the alleged onset date” and that
Fisher’s own doctor indicated in February 2009 that Fisher was capable
of light work. Tr. at 22. The ALJ also noted that Fisher has no history
of uncontrolled pain complaints and has not required pain management
or other treatment due to pain.
Fisher is specifically concerned that the ALJ mischaracterized or

19

incorrectly questioned the credibility of his testimony about his
enlarged prostate and his frequent need to urinate, suggesting that
Fisher would spend six to eight hours a day emptying his bladder.
Court Doc. 15 at 26; Court Doc. 23 at 2-3. In making this assertion, the
ALJ referenced Fisher’s testimony at the hearing regarding the
frequency and duration of his urination. Tr. at 21 (referencing Tr. at 4546, 93-95). But Fisher did testify that at times his need to use the
bathroom “will last four to six hours” (Tr. at 45). The ALJ noted that
Fisher did not report excessive urination to his doctors, which was the
ALJ’s main credibility concern. Id; see e.g. Tr. at 342-343 (cited by
Fisher, Court Doc. 15 at 23 and discussed by the ALJ, Tr. at 22-23).
Thus, the ALJ’s stated reasoning, that Fisher’s credibility is
questionable because he “never reported alleged restrictions such as …
spending up to 6 hours taking care of bathroom needs on any consistent
or regular basis” remains persuasive. Tr. at 21. The ALJ explained:
“While he does reasonably have frequent urination due to his
medications which include diuretics and/or due to BPH [benign
prostatic hypertrophy], the amount of time involved with this seems
overstated when he hasn’t mentioned that he is actually spending that

20

amount of time in a bathroom to his doctor….” Id. Fisher suggests that
the reason for this lack of documentation is his lack of funds for medical
care. Court Doc. 15 at 26-27. But, as the ALJ specifically noted, Fisher
“has received ongoing medical care from primary care providers who
have had the opportunity to see him fairly frequently over time and who
have not observed marked functional loss due to his underlying
impairments and symptoms on examinations….” Tr. at 21-22.
Citing no authority, Fisher complains that the ALJ used a “sit and
squirm” test, which he is not permitted to do. Court Doc. 15 at 9, 26.
But the disapproved “sit and squirm” test occurs when an ALJ
improperly bases his opinion on a claimant’s apparent lack of symptoms
at the hearing, and there is no suggestion that this ALJ violated this
jurisprudential rule. See Aviles v. Astrue, 2010 WL 3155150 (citing
Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985)). In addition, the
inclusion of the ALJ’s personal observations does not render the
decision improper. Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir.
1999).
The ALJ concluded that the “overall picture presented by the
evidence since January 30, 2002 indicates that the claimant has

21

overstated both his symptoms and limitations.” Tr. at 21. The ALJ is
responsible for determining credibility. Hegel, 325 Fed.Appx. 580.
Substantial evidence supports the ALJ’s specific, clear and convincing
reasons for determining that Fisher’s statements were not entirely
credible.
C.

ALJ did not err in presenting the hypothetical
questions to the vocational expert.

Fisher argues the ALJ erred in posing to the VE a hypothetical
question that did not fully “incorporate[] all limitations of the treating
physicians as well as the limitations described by [Fisher]...” Court Doc.
15 at 36. The Court has already found, supra, that the ALJ did not err
in his assessment of Fisher’s credibility regarding his symptoms and
limitations, nor in giving less weight to some Dr. Schiffert’s inconsistent
opinions. Therefore, the ALJ was not required to include these in his
hypothetical question. Ostenbrock v. Apfel, 240 F.3d 1157, 1164-65 (9th
Cir. 2001) (“An ALJ is free to accept or reject restrictions in a
hypothetical question that are not supported by substantial evidence.”).
Rather, the ALJ relied upon the substantial medical evidence,
discussed below, for purposes of framing the hypothetical. Tr. at 24-25.

22

The ALJ was permitted to do this, and thus he did not err.
D.

Substantial evidence supports the ALJ’s finding
of not disabled.

The Court finds that the ALJ’s decision is supported by
substantial evidence from the record. The ALJ issued a thoughtful,
detailed decision that includes a thorough discussion of relevant
medical evidence, opinions, and testimony. Tr. at 15-26.
In evaluating Fisher=s claims, the ALJ was required to Amake
fairly detailed findings in support@ of his decision that would Apermit
courts to review those decisions intelligently.@ Vincent v. Heckler, 739
F.2d 1393, 1394 (9th Cir. 1984) (citation omitted). In doing so, an AALJ
does not need to discuss every piece of evidence@ and Ais not required to
discuss evidence that is neither significant nor probative[.]@ Howard ex
rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (internal
quotations and citations omitted).
A reviewing court “must consider the entire record as a whole and
may not affirm simply by isolating a ‘specific quantum of supporting
evidence.’” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (citing
Robins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). But a

23

court reviews “only the reasons provided by the ALJ in the disability
determination and may not affirm the ALJ on a ground upon which he
did not rely.” Id. (citing Connett v. Barnhart, 340 F.3d 871,874 (9th Cir.
2003)).
The ALJ reviewed the record and explained his rationale for
assessing Fisher=s functional capacity and credibility. Tr. at 15-26. The
ALJ’s decision reviewed the substantial evidence that informed and
supported his conclusion with respect to Fisher=s disability claim. Id.
The ALJ referenced the records of three doctors, who examined and
treated Fisher: Dr. Dudczak (Tr. at 18, 384-85), Dr. James (Tr. at 18,
264-329), and Dr. Schiffert (Tr. at 19, 22-25, 256-324, 330-336, 339-348).
Over the course of his determination, the ALJ considered the entire
medical record. Tr. at 17-22 (citing Tr. at 222-254, 256-336, 339-395).
Relying on this substantial evidence from the record, the ALJ
found that Fisher is capable of light, unskilled work, and therefore
ineligible for benefits. Tr. at 19-25. The Court has reviewed these
medical records cited by the ALJ. The Court finds that they support the
ALJ’s conclusion that Fisher is not disabled. This Court finds,
therefore, that the ALJ’s decision is supported by substantial evidence.

24

VII.

CONCLUSION
The ALJ’s decision was based on substantial evidence from the

record and contained no legal error. For these reasons,
IT IS ORDERED that:
(1)

the Commissioner=s motion for summary judgment (Court
Doc. 20) is GRANTED; and

(2)

Fisher=s motion for summary judgment (Court Doc. 14) is
DENIED.

The Clerk of Court is directed to enter judgment accordingly.
DATED this 22nd day of February, 2012.

/s/ Carolyn S. Ostby
United States Magistrate Judge

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