Ostrowski v. Astrue

Filing 27

ORDER denying 21 Plaintiff's Motion for Summary Judgment; granting 23 Defendant's Motion for Summary Judgment. Signed by Magistrate Carolyn S Ostby on 10/25/2012. (Hard copy mailed to Plaintiff Ostrowski.) (JDH, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
CAROL LOUISE OSTROWSKI,
CV 12-09-BLG-CSO
Plaintiff,
ORDER ADDRESSING
SUMMARY JUDGMENT
MOTIONS

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

Plaintiff Carol Louise Ostrowski (“Ostrowski”), appearing pro se,
seeks judicial review of Defendant Commissioner of Social Security’s
(“Commissioner”) decision denying her applications for disability
insurance benefits (“DIB”) and supplemental security income (“SSI”)
under Titles II and XVI of the Social Security Act (“the Act”), 42 U.S.C.
§§ 401-433, 1381-1383(c). Complt. (DKT 3). After the parties consented
in writing, this case was assigned to the undersigned for all
proceedings. DKT 13.
Now pending are the parties’ cross-motions for summary

-1-

judgment. DKTs 21 (Ostrowski’s motion) and 23 (Commissioner’s
motion). For the reasons stated below, the Court denies Ostrowski’s
motion, grants the Commissioner’s motion, and affirms the
Commissioner’s decision denying DIB and SSI.
I.

PROCEDURAL BACKGROUND
On June 25, 2008, Ostrowski filed her DIB and SSI applications.

Tr. 119-21, 124-30. She alleged that she had been unable to work since
October 2007 because of back and hip pain, vertigo, bilateral plantar
fasciitis, and a ganglion cyst on her right wrist. See, e.g., Tr. 250-51.
A state agency and the Social Security Administration (“SSA”) denied
Ostrowski’s claims. Tr. 55-56, 73-76.
On December 9, 2009, an Administrative Law Judge (“ALJ”) held
a hearing. Tr. 16-54. On January 22, 2010, the ALJ issued a written
decision denying Ostrowski’s claims. Tr. 60-69. On December 8, 2011,
after the Appeals Council denied Ostrowski’s request for review, the
ALJ’s decision became final for purposes of judicial review. Tr. 1-5; 20
C.F.R. §§ 404.981, 416.1481 (2012). This Court has jurisdiction
pursuant to 42 U.S.C. § 405(g).

-2-

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). “Substantial 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 quotation marks omitted)).
“It is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Id. (internal quotation marks and
citation omitted).
The 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 “by 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
medical testimony, and resolving ambiguities. “Where the evidence is

-3-

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 “engage in
any other kind of substantial gainful work which exists in the national
economy.” Schneider v. Commr. of Soc. Sec. Admin., 223 F.3d 968, 974
(9th Cir. 2000) (citing 42 U.S.C. § 1382c(a)(3)(A)-(B)).
In determining whether a claimant is disabled, the Commissioner
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).

-4-

1.

The claimant must first 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 next 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 “Listing of Impairments”). Id. If
the claimant’s impairments do not meet or medically equal
one listed in the regulations, the analysis proceeds 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. “If 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 “severe 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). If an adjustment to other work is possible then
the claimant is not disabled. Tackett, 180 F.3d at 1099.

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
-5-

the claimant can perform. Id. The Commissioner can meet this burden
via the testimony of a vocational expert or reference to the MedicalVocational Guidelines at 20 C.F.R. Pt. 404, Subpt. P, App. 2. Id. If the
Commissioner is unable to meet this burden then the claimant is
disabled and entitled to benefits. Id.
IV.

THE ALJ’s OPINION
The ALJ followed the five-step sequential evaluation process in

considering Ostrowski’s claims. First, the ALJ found that Ostrowski
had not engaged in substantial gainful activity since her amended
alleged onset date of January 1, 2008. Tr. 62.
Second, the ALJ found that Ostrowski has the following severe
impairments: “bilateral plantar fasciitis; and chronic back and hop
strain[.]” Tr. 63. He also found that the cyst on Ostrowski’s right wrist
is not a “severe” impairment under the Act. Id.
Third, the ALJ found that Ostrowski does not have an
impairment or a combination of impairments that meets or medically
equals any one of the impairments in the Listing of Impairments. Id.
Fourth, the ALJ found that Ostrowski has the residual functional

-6-

capacity (“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except she can stand and walk two hours per
occasion and up to four hours in an eight-hour day.
[Ostrowski] should avoid ladders, scaffolds, and balancing.
She can stoop, kneel, crouch, crawl, use foot controls, and
climb stairs.
Tr. 64.
The ALJ also found that Ostrowski is unable to perform any of
her past relevant work as a personal care provider, retail store clerk,
electro-mechanical technician, or waitress. Tr. 67.
Fifth, the ALJ found that Ostrowski could perform jobs that exist
in significant numbers in the national economy in light of her age (44
years old at the time of her amended alleged onset date, which is
defined as a younger individual), education (at least high school), work
experience, and RFC. Id. Consequently, the ALJ found that Ostrowski
was not disabled. Tr. 68-69.
V.

PARTIES’ ARGUMENTS
Ostrowski argues that the ALJ erred in four principal ways.

First, she claims that the ALJ misstated and mischaracterized evidence
in the record when rendering his written decision denying her claims
-7-

for benefits. Ostrowski’s Br. (DKT 22) at 10-17. For example,
Ostrowski argues that the ALJ: (1) noted that medical records from the
People’s Clinic state that she had right foot pain in August and
September 2007 when Dr. Ambrose’s notes actually indicate that
Ostrowski claimed to have pain in both feet, id. at 11; (2) noted that
Ostrowski voluntarily decided to take a leave of absence from work
when she actually requested from her employer a “return to work” note
because she expected steroid injections that she received for pain to be
effective longer than they actually were, id. at 12; (3) noted that the
injections Ostrowski received were “very helpful” when he also stated
earlier in his decision that the injections “have helped lessen pain and
symptoms dramatically[,]” id.; and (4) noted Ostrowski had “no
neurological deficits” which is inconsistent with a positive Romberg
test, id. at 17.
Second, Ostrowski argues that the ALJ erred in failing to include
in the hypothetical question to the vocational expert (“VE”) all of “the
essential factors in the residual functional capacity (RFC) assessment,
namely mild degenerative disk disease.” Id. at 18-19. Because the VE’s

-8-

testimony “is based on a flawed hypothetical question[,]” Ostrowski
argues, it cannot support the ALJ’s decision that she is not disabled.
Id. at 19.
Third, Ostrowski argues that the ALJ erred in according only
“minimal weight to Dr. Jachimiak’s statements, in spite of long term
care he provided [Ostrowski], without [providing] clear and convincing
reasons.” Id. at 20-21.
Fourth, Ostrowski argues that the ALJ erred in failing “to provide
clear and convincing reasons for rejecting [her] contention that [her]
pain prevents [her] from being able to work.” Id. at 21. She argues
that the ALJ’s conclusion respecting her credibility is erroneous
because of her positive Romberg test. Ostrowski also argues that the
fact that she drives or shops “does not diminish the fact that [she is] in
pain when [she does] these necessities.” Id. She adds that the fact that
she does not take pain medication also does not negate the fact that she
is in pain. Id.
In response, the Commissioner argues that the ALJ properly: (1)
considered the evidence and based his decision on substantial evidence

-9-

in the record, Commissioner’s Br. (DKT 25) at 2-13; (2) considered the
opinion of Ostrowski’s treating podiatrist, Dr. Jachimiak, D.P.M., id. at
8-11; (3) evaluated Ostrowski’s subjective complaints in determining
her credibility, id. at 13-21; and (4) posed a hypothetical question to the
VE that captured all of Ostrowski’s functional limitations, id. at 21-22.
Finally, the Commissioner argues that if the Court finds that the
decision denying Ostrowski’s claims is not supported by substantial
evidence, the Court should remand for further administrative
proceedings rather than reverse for an award of benefits. Id. at 23-24.
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. The Court is not permitted to re-weigh the evidence.
Considering Ostrowski’s allegations of error and applying controlling
Ninth Circuit authority, the Court concludes, as discussed below, that
the Commissioner’s decision is based on substantial evidence in the
record, and is free of legal error.

-10-

A.

ALJ’s Consideration of the Evidence

In evaluating Ostrowski’s claims, the ALJ was required to “make
fairly detailed findings in support” of his decision “to permit courts to
review those decisions intelligently.” Vincent v. Heckler, 739 F.2d 1393,
1394 (9th Cir. 1984) (citation omitted). In doing so, an “ALJ does not
need to discuss every piece of evidence” and “is 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).
Here, the ALJ issued a detailed decision. Tr. 60-69. He
meticulously reviewed, as discussed further below, his rationale for
rejecting certain evidence in his assessment of Ostrowski’s medical
records, credibility, and RFC. Tr. 63-68. In his written decision, he
also set forth the evidence – which the Court concludes is substantial –
that informed and supported his conclusion with respect to Ostrowski’s
disability claims. Id. For these reasons, the Court finds unpersuasive
Ostrowski’s argument that the ALJ failed to properly consider evidence
favorable to her claims for DIB and SSI.
-11-

With respect to Ostrowski’s specific claims of error, the Court first
concludes that the ALJ did not fail to properly consider that Ostrowski
suffered pain in both of her feet. The ALJ expressly found in his
decision that Ostrowski has the “severe impairment[ ]” of “bilateral
plantar fasciitis[.]” Tr. at 63. The ALJ’s use of the descriptor “bilateral”
indicates that the ALJ knew Ostrowski had a condition affecting both
of her feet. The ALJ also noted in recounting Ostrowski’s medical
history that she received steroid injections in her “feet” and
acknowledged that Ostrowski “reported pain in both arches of the feet”
in October 2009. Tr. 65-66. Thus, the ALJ considered Ostrowski’s
claims while properly understanding that she suffers pain in both of
her feet.
Second, the ALJ did not mischaracterize the evidence of record, as
Ostrowski suggests, when he noted that Ostrowski “voluntarily decided
to take a leave of absence from work[.]” Tr. 66. The ALJ’s finding in
this regard is supported by Dr. Jachimiak’s treatment notes dated
December 10, 2007, indicating that Ostrowski “decided to take a leave
of absence from work....” Tr. 246.

-12-

Third, the ALJ did not misstate the evidence of record, as
Ostrowski argues, when he alternately described the effect of
Ostrowski’s steroid injections as “very helpful” and when he noted that
they “have helped lessen pain and symptoms dramatically.” That a
steroid injection on March 4, 2008, was “very helpful” is reflected in the
People’s Clinic notes dated April 24, 2008. Tr. 224. Also, continued
improvement with use of injections and orthotics is reflected in
treatment notes in the record. Tr. 246-48. That Ostrowski disagrees
with the ALJ’s characterization of these notes is a matter of semantics
and is not error.
Fourth, respecting the argument that the ALJ’s conclusion that
Ostrowski had no neurological deficits is inconsistent with her positive
Romberg test, the Court is not persuaded. The record contains
objective findings of no neurological deficits. Evidence of the positive
Romberg test also is in the record. Although the two findings are not
necessarily inconsistent, even if they were it is the ALJ’s obligation to
resolve conflicts and ambiguities in the evidence. Tommassetti v.
Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (citations omitted). That he

-13-

did so here in a way with which Ostrowski disagrees does not constitute
error. Id.
B.

Weight ALJ Afforded Dr. Jachimiak’s Opinions

As noted, Ostrowski argues that the ALJ erred in according only
“minimal weight to Dr. Jachimiak’s statements, in spite of long term
care he provided [Ostrowski], without [providing] clear and convincing
reasons.” DKT 22 at 20-21. “As a general rule, more 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. [The Ninth Circuit Court of Appeals
has] also held that ‘clear and convincing’ reasons are required to reject
the treating doctor’s ultimate conclusions. Even if the treating doctor’s
opinion is contradicted by another doctor, the Commissioner may not
reject this opinion without providing ‘specific and legitimate reasons’
supported by substantial evidence in the record for so doing.” Lester v.
Chater, 81 F.3d 821, 830 (9th Cir. 1996) (citations omitted).
Having reviewed the record and the parties’ arguments, the Court

-14-

concludes that the ALJ did not err with respect to his consideration of
Dr. Jachimiak’s opinions. First, the ALJ expressly acknowledged that
Dr. Jachimiak, a podiatrist, treated Ostrowski for bilateral plantar
fasciitis beginning in October 2007. He noted that Dr. Jachimiak
“found no evidence of plantar calcaneal spur formation on x-ray[,]” but
“did encourage [Ostrowski] to decrease her walking to only four hours a
day and recommended special shoes[.]” Tr. 66. He also noted that Dr.
Jachimiak requested that Ostrowski get steroid injections, which she
received at the People’s Clinic, and which, according to their records,
she reported were “very helpful.” Id.
Despite some improvement with the steroid injections, the ALJ
noted, Ostrowski complained of continued problems and requested that
Dr. Jachimiak keep her off of work until August 2008. Dr. Jachimiak
wrote a letter to Ostrowski’s employer stating that Ostrowski “believes
that she needs to be off of work for another month to allow the area [a]
chance to heal.” Id. (referring to Tr. 247-49).
The ALJ did not err, as Ostrowski argues, in concluding that Dr.
Jachimiak noted “no specific indications of work limitations.” That Dr.

-15-

Jachimiak encouraged Ostrowski to decrease her walking to only four
hours each day, which the ALJ specifically acknowledged, does not
render the ALJ’s observation that Dr. Jachimiak noted no specific work
limitations erroneous. Under the Social Security regulations and
authority discussed above, merely encouraging someone to limit their
walking to no more than four hours per day is not the type of
significant functional limitation relevant to determining an individual’s
ability to work under the Act.
Ostrowski overstates the significance of the “limitation” Dr.
Jachimiak placed on her time walking each day. The ALJ’s apparent
conclusion that this limitation does not reflect a severe loss of function
that would render Ostrowski incapable of engaging in any substantial
gainful activity is reasonable. Dr. Jachimiak’s statement that
Ostrowski should limit her walking to four hours each day indicates
only that Ostrowski has that limitation – the existence of which the
ALJ expressly acknowledged – not that she is precluded from all work
activity. Tr. 66. “The mere existence of an impairment is insufficient
proof of a disability.” Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir.

-16-

1993) (citation omitted).
Second, the Court concludes that the ALJ made findings adequate
to allow him properly to afford Dr. Jachimiak’s opinion “minimal
weight.” Tr. 66. The ALJ noted that Dr. Jachimiak’s letter to
Ostrowski’s employer – stating that Ostrowski believes she needs to be
off work for additional time – had no supporting objective medical
evidence. Rather, as the ALJ noted, the letter was based “solely on
[Ostrowski’s] subjective complaints.” Id. An ALJ properly 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).
Third, Ostrowski asks the Court to reweigh the medical evidence,
and to arrive at a conclusion different from that of the ALJ. The Court
is not permitted to do so. Even in those instances in which “the
evidence is susceptible to more than one rational interpretation,” the
Court must uphold the ALJ’s interpretation. Sandgathe v. Chater, 108
F.3d 978, 980 (9th Cir. 1997).
Fourth, although Ostrowski did not directly raise as an allegation
of error the ALJ’s consideration of her other medical records, the Court

-17-

concludes there was no error. The ALJ carefully reviewed and
summarized Ostrowski’s medical records. Tr. 63-67. The records do
not indicate a sustained severe loss of function that would render
Ostrowski incapable of engaging in any substantial gainful activity.
Rather, they indicate that Ostrowski has certain conditions and
limitations, the existence of which the ALJ expressly acknowledged.
Tr. 63 (noting Ostrowski has severe impairments of bilateral plantar
fasciitis and chronic back and hip strain). As already noted, the
existence of impairments is not conclusive proof of a disability under
the Act. Matthews, 10 F.3d at 680.
The Court concludes that the ALJ’s findings support his
determinations with respect to the opinion of Dr. Jachimiak and
Ostrowski’s other medical records. He offered reasons for his
conclusions in accord with the standards set forth above. Thus, the
ALJ did not err.
C.

ALJ’s Assessment of Ostrowski’s Credibility

As noted, Ostrowski argues that her medical records support her
testimony and her claims of disability. She also claims that the ALJ’s

-18-

determination that her testimony lacks credibility is not sufficiently
specific. The Court disagrees and concludes that the ALJ did not err in
assessing Ostrowski’s credibility.
In Molina v. Astrue, 674 F.3d 1104 (9th Cir. 2012), the Ninth
Circuit restated the long-standing standard for assessing a claimant’s
credibility as follows:
In assessing the credibility of a claimant’s testimony
regarding subjective pain or the intensity of symptoms, the
ALJ engages in a two-step analysis. First, the ALJ must
determine whether there is objective medical evidence of an
underlying impairment which could reasonably be expected
to produce the pain or other symptoms alleged. If the
claimant has presented such evidence, and there is no
evidence of malingering, then the ALJ must give specific,
clear and convincing reasons in order to reject the claimant’s
testimony about the severity of the symptoms. At the same
time, the ALJ is not required to believe every allegation of
disabling pain, or else disability benefits would be available
for the asking, a result plainly contrary to 42 U.S.C. §
423(d)(5)(A). In evaluating the claimant’s testimony, the
ALJ may use ordinary techniques of credibility evaluation.
For instance, the ALJ may consider 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. While a
claimant need not vegetate in a dark room in order to be
eligible for benefits, the ALJ may discredit a claimant’s
testimony when the claimant reports participation in
-19-

everyday activities indicating capacities that are
transferable to a work setting. Even where those activities
suggest some difficulty functioning, they may be grounds for
discrediting the claimant’s testimony to the extent that they
contradict claims of a totally debilitating impairment.
Molina, 674 F.3d at 1112-13 (citations and internal quotations
omitted).
Here, the ALJ found objective medical evidence of underlying
impairments that could reasonably be expected to produce the
symptoms alleged. Also, the ALJ did not find that Ostrowski was
malingering. Thus, to find that Ostrowski was not entirely credible,
the ALJ had to give specific, clear, and convincing reasons. The Court
concludes that he did.
The ALJ initially found Ostrowski credible to the extent that she
alleged some medically determinable impairments that could be
expected to cause her symptoms and limit, to some extent, her ability to
perform work activity. Tr. 63-65. He therefore reduced her RFC to
accommodate those limitations and concluded, with the VE’s testimony,
that she could not perform her past relevant work. Tr. 67. Thus, the
ALJ did not entirely reject Ostrowski’s allegations. Rather, the ALJ

-20-

was careful to parse out those allegations that he found credible from
those that he found not credible, as he was required to do. And, the
ALJ gave the following specific, clear, and convincing reasons for
rejecting other portions of Ostrowski’s allegations and making his
credibility determination.
First, the ALJ found that some of Ostrowski’s claimed functional
limitations are inconsistent with objective clinical findings of record.
He noted that medical records regarding Ostrowski’s back and hip pain
are “rather sparse” and indicate only “diagnostically mild degenerative
changes, normal gait, and no neurological deficits.” Tr. 65. He also
noted that diagnostic imaging of Ostrowski’s feet have shown no
abnormalities and that she has received steroid injections that have
helped her symptoms. Id.
Second, the ALJ concluded that evidence in the record of
Ostrowski’s activities of daily living was inconsistent with her claims of
disabling conditions. He noted that evidence of record shows that she
is able to perform significant activities of daily living including
“household chores such as cleaning, laundry, cooking, washing dishes,

-21-

... meal preparation ... grocery shopping weekly, exercis[ing] a little bit,
... watching television, ... [and] walk[ing] one quarter mile.” Id. The
ALJ concluded that these activities “suggest that [Ostrowski] retains
significant capacity despite her subjective complaints.” Id.
Third, the ALJ found that, although Ostrowski claims chronic
back and hip pain that limits her ability to work, she apparently did
not report these conditions or their symptoms to her treating
physicians when being seen for plantar fasciitis. The ALJ determined
that this failure to report “diminishes the persuasiveness of [her]
allegations of disabling symptoms and is inconsistent with a disabling
level of severity.” Id.
Fourth, the ALJ noted that both the record as a whole and recent
medical evidence do “not suggest a disabling level of severity that
precludes the performance of all sustained work activity.” Tr. 66.
Instead, he noted, the medical records reflect periodic improvement in
plantar fasciitis symptoms when treated and, as noted above, “rather
sparse” evidence concerning her back and hip pain that indicates only
“diagnostically mild degenerative changes, normal gait, and no

-22-

neurological deficits.” Tr. 65-67. Finally, the ALJ noted that no
treating physician has opined that Ostrowski is unable to work or has
imposed limitations greater than what the ALJ determined in his
decision. Tr. 67.
All of the foregoing observations, which the Court finds to be
supported by the evidence of record, indicate that the ALJ properly
applied ordinary credibility evaluation techniques in assessing
Ostrowski’s credibility. Smolen v. Chater, 80 F.3d 1273, 1283-84 (9th
Cir. 1996) (citing Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993)).
As noted, the Court cannot substitute its own interpretation of the
evidence for the ALJ’s interpretation. “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 (citation omitted). The ALJ did not err.
D.

ALJ’s Hypothetical Question to Vocational Expert

Ostrowski argues that the ALJ failed to include in the
hypothetical question to the VE all of “the essential factors in the
residual functional capacity (RFC) assessment, namely mild

-23-

degenerative disk disease.” DKT 22 at 18-19. The Court concludes that
the ALJ did not err.
An ALJ’s hypothetical question to a vocational expert must
include all limitations supported by medical evidence in the record.
Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (ALJ’s reliance
on vocational expert testimony proper where hypothetical contained all
of the limitations that the ALJ found credible and supported in record).
Here, the ALJ’s hypothetical question to the VE contained Ostrowski’s
limitations supported by substantial evidence in the record. Tr. 49-50.
That the hypothetical question did not mention her “mild degenerative
disk disease” is not error. The condition of degenerative disk disease is
not, alone, relevant to a claimant’s ability to work. Rather, a
condition’s relevance for purposes of determining disability under the
Act lies in any functional limitations the condition imposes upon a
claimant. 20 C.F.R. §§ 404.1520 and 416.920 (2012) (providing that
impairments must be so functionally limiting as to preclude either past
work or any other work existing in significant numbers in the national
economy). Without substantial evidence reflecting that the condition

-24-

imposed functional limitations upon Ostrowski, the ALJ did not err in
not mentioning mild degenerative disk disease in his hypothetical
question to the VE.
Also, as discussed in detail above, the Court already has
determined that the ALJ did not err in his evaluation of the medical
evidence of record or his assessment of Ostrowski’s credibility with
respect to her symptoms and limitations. Thus, the ALJ was not
required to include in his hypothetical question to the vocational expert
Ostrowski’s own version of her symptoms and limitations. Osenbrock 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 was free to consider the
evidence as a whole in making his determination as to Ostrowski’s
limitations. The Court concludes that he did so, and thus he did not
err.
VII. CONCLUSION
Based on the foregoing,
IT IS ORDERED that Ostrowski’s summary judgment motion

-25-

(DKT 21) is DENIED, the Commissioner’s summary judgment motion
(DKT 23) is GRANTED, and the Commissioner’s decision denying DIB
and SSI is affirmed.
The Clerk of Court shall enter Judgment accordingly.
DATED this 25th day of October, 2012.

/s/ Carolyn S. Ostby
United States Magistrate Judge

-26-