Huft v. Colvin

Filing 21

ORDER that the Commissioners decision is affirmed. Signed by Magistrate Judge Jeremiah C. Lynch on 6/8/2017. (KJH)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

JENNIFER L. HUFT,

CV 16–58–M-JCL

Plaintiff,
ORDER

vs.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security
Administration
Defendant.

Plaintiff Jennifer Huft brings this action under 42 U.S.C. § 405(g) seeking
judicial review of a decision by the Commissioner of Social Security terminating
her disability insurance benefits under Title II of the Social Security Act (the Act),
42 U.S.C. §§ 401et seq.
I.

Procedural Background
Huft applied for disability insurance benefits in March 2004, alleging

disability since February 2003 due to an organic mental disorder and posttraumatic
stress disorder (PTSD). Her claim was approved in January 2005, and she was
awarded benefits dating back to the alleged onset date.
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In May 2013, the Social Security Administration conducted a continuing
disability review1 and determined that Huft’s medical condition had significantly
improved, such that she was no longer disabled as of April 16, 2012. Huft
appealed the cessation of her benefits, and requested an administrative hearing
before an ALJ. After a hearing, the ALJ issued a decision finding that Huft’s
condition had improved and she was able to work. The ALJ concluded that Huft’s
disability ended as of April 16, 2012, and her benefits had been properly
terminated. The Appeals Council later denied Huft’s request for review, rendering
the ALJ’s decision the agency’s final decision for purposes of judicial review.
Huft was 26 years old when she began receiving benefits in February 2003,
and 35 years old when her benefits were terminated in April 2012. She was 37
years old at the time of the ALJ’s decision.
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. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1
(9th Cir. 2005); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). Substantial

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Under the Social Security Act, a claimant’s eligibility for benefits is subject
to periodic review. See 42 U.S.C. § 423(f); 20 C.F.R. § 404.1594 (2006).
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evidence is “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971);
Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir. 2006).
“The ALJ is responsible for determining credibility, resolving conflicts in
medical testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d
1152, 1156 (9th Cir. 2001). This Court must uphold the Commissioner’s findings
“if supported by inferences reasonably drawn from the record.” Batson v.
Commissioner of Social Security Administration, 359 F.3d 1190, 1193 (9th Cir.
2004). “[I]f evidence exists to support more than one rational interpretation,” the
Court “must defer to the Commissioner’s decision.” Batson, 359 F.3d at 1193
(citing Morgan v. Commissioner, 169 F.3d 595, 599 (9th Cir. 1999). This Court
“may not substitute its judgment for that of the Commissioner.” Widmark, 454
F.3d at 1070 (quoting Edlund, 253 F.3d at 1156).
III.

Burden of Proof
Where, as here, a claimant has received a favorable disability determination,

the Commissioner can terminate benefits only if substantial evidence demonstrates
medical improvement such that the claimant is able to engage in substantial
gainful activity. 42 U.S.C. 423(f); 20 C.F.R. § 416.994(b); Murray v. Heckler,
722 F.2d 499, 500 (9th Cir. 1983). The applicable regulations define medical
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improvement as “any decrease in the medical severity of your impairment(s) which
was present at the time of the most recent favorable medical decision that you
were disabled or continued to be disabled.” 20 C.F.R. § 416.994(b)(1)(I). “A
determination that there has been a decrease in medical severity must be based on
changes (improvement) in the symptoms, signs and/or laboratory findings
associated with your impairment(s).” 20 C.F.R. § 404.1594(b)(1).
Accordingly, to determine whether Huft’’s disability had ceased, the ALJ
was required to compare the current medical severity of her impairments to the
severity of those impairments at the last time the Commissioner found her
disabled. 20 C.F.R. § 404.1594(c)(3)(v). The most recent favorable medical
decision, also known as the “comparison point decision,” in this case was the
disability determination dated January 13, 2005. (Doc. 7-2, at 14). To find that a
claimant’s disability does not continue through the date of the decision, the ALJ
must establish that the claimant has experienced medical improvement that would
allow her to engage in substantial gainful activity. 20 C.F.R. § 404.1594(a);
Murray v. Heckler, 722 F.2d 499, 500 (9th Cir. 1983).
In determining whether medical improvement has occurred, the ALJ follows
an additional eight-step process. 20 C.F.R. § 404.1594. Medical improvement is
“any decrease in the medical severity of [a claimant’s] impairment(s) which was
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present at the time of the most recent favorable medical decision that [the
claimant] was disabled or continued to be disabled.” 20 C.F.R. § 404.1594(b)(1).
“Once a claimant has been found to be disabled,...a presumption of continuing
disability arises in [the claimant’s] favor and the Commissioner “bears the burden
of producing evidence sufficient to rebut the presumption of continuing disability”
and establishing medical improvement. Bellamy v. Sec’y of Health & Human
Services, 775 F.2d 380, 1381 (9th Cir. 1085).
IV.

ALJ’s Findings
Adhering to the sequential evaluation process applicable in disability

termination cases, the ALJ first found that Huft had not engaged in substantial
gainful activity through April 16, 2012, the date her disability ended. (Doc. 7-2, at
14); 20 C.F.R. § 404.1594(f)(1). He then determined at step two that Huft suffered
from PTSD, cognitive disorder not otherwise specified, migraine headache
disorder, and status post right wrist/shoulder fracture, but that those impairments
did not meet or equal the severity of any impairment described in the Listing of
Impairments. (Doc. 7-2, at 14); 20 C.F.R. § 404.1594(f)(2). At step three, the
ALJ found that medical improvement had occurred as of April 16, 2012. (Doc. 72, at 17); C.F.R. § 404.1594(f)(3). The ALJ next found that Huft had the residual
functional capacity to perform a restricted range of light work as of April 16,
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2012, and consequently concluded at step four that her medical improvement was
related to her ability to work. (Doc. 7-2, at 17-26); 20 C.F.R. § 404.1594(f)(4).
The ALJ ultimately concluded that although Huft could not perform past relevant
work, she was not disabled after April 16, 2012, because there were other jobs
existing in significant numbers in the national economy that she could perform,
including unskilled light level work as an office helper, business mail clerk, or
light packager. (Doc. 7-2, at 26-28); 20 C.F.R. § 404.1594(f)(7),(8).
V.

Discussion
Huft challenges the ALJ’s determination that she was not disabled after

April 16, 2012 on several grounds. She argues the ALJ (1) erred by finding her
disability ended in April 2012 due to medical improvement; (2) did not give
proper weight to the opinion of treating psychologist Dr. Nancy Errebo; (3) did
not provide germane reasons for discounting the opinion of nurse practitioner Beth
McGee; (4) failed to set forth clear and convincing reasons for finding her only
partially credible; (5) failed to fully and fairly develop the record by calling a
medical expert; and (6) did not give germane reasons for discounting lay witness
testimony.
A.

Medical Improvement

Huft first argues the ALJ’s finding of medical improvement was flawed
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because mental status examination reports by Dr. David Young in September 2004
and Dr. John Harrison in September 2012 were essentially the same, with both
showing similar working memory test scores and mostly mild to moderate
limitations. (Doc. 7-8, at 64; 7-9, at 32 & 154).
In September 2004, Dr. Young evaluated Huft’s cognitive and emotional
functioning, and completed a medical source statement of her abilities to perform
mental work related activities on which he found that Huft had mild limitations in
most categories. (Doc. 7-8, at 74-84). In September 2012, Dr. Harrison
performed a comprehensive neuropsychological evaluation, and found based on
the testing he administered that Huft had at least average intellectual ability with
generally average verbal- language and visual-spatial functioning. (Doc. 7-9, at
158). He found that Huft had reasonably intact executive functioning, but noted
some variation in attention and working memory abilities, which was more
consistently impaired across several tasks. (Doc. 7-9, at 158). Dr. Harrison
diagnosed Huft with fairly marked depression, anxiety, and somatization. (Doc. 79, at 158). In February 2014, Dr. Harrison completed a medical source statement
of Huft’s ability to perform mental work-related activities. (Doc. 7-10, at 49).
Citing the results of the neurospsychological testing he had previously
administered, Dr. Harrison found that Huft had mostly mild and some moderate
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limitations. (Doc. 7-10, at 49-50).
The fact that many of Dr. Harrison’s findings in February 2014 were similar
to those made by Dr. Young in September 2004 does not mean the ALJ erred in
finding based on the record as a whole that Huft’s overall level of functioning had
improved.

Dr. Harrison’s assessment of Huft’s ability to perform mental work-

related activities supported the ALJ’s determination that she was capable of
working, and the record contains substantial additional evidence supporting a
finding of medical improvement after Dr. Young’s evaluation in September 2004
and the comparison point decision in January 2005.
To begin with, the ALJ noted that there were no medical records between
May 2005 to May 2010. As of May 2010 and thereafter, findings on physical and
mental status examinations were mixed. Many of those findings were
unremarkable, and progress notes reflect that Huft’s condition improved with
treatment. In November 2010, for example, Huft established care with nurse
practitioner Beth McGee, at which time her neurologic exam was largely
unremarkable. (Doc. 7-8, at 209-11). By February 2011, Huft’s headaches had
decreased and she told McGee she was considering returning to work. (Doc. 7-8,
at 8). And when Huft began physical therapy for shoulder pain in March 2011, her
physical examination was again largely unremarkable. (Doc. 7-8, at 195). Notes
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from Huft’s more recent mental status examinations contain many positive
findings. In September 2011, for example, she was described as cooperative,
calm, and alert with fluent speech and intact memory. (Doc. 7-8, at 200).
As Huft points out, the record also contains negative clinical findings and
reflects her subjective complaints of pain and mental limitations. While Huft
offers an interpretation of the medical evidence that differs from the ALJ’s, it was
wholly within the province of the ALJ to weigh the medical evidence and resolve
any conflicts. See Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995).
In doing so, the ALJ reasonably relied on examining and reviewing
physicians whose opinions indicated Huft was capable of working. In March
2012, for example, Dr. Patricia Webber performed a consultative mental status
evaluation and concluded that Huft’s cognitive and emotional issues were not a
“major hurdle to employment.” (Doc. 7-9, at 28). Dr. Webber noted that Huft did
well on most of the mental status examination, and noted that while she had some
issues related to men and the anniversary date of being assaulted by a former
boyfriend, she did not meet the criteria for PTSD. (Doc. 7-9, at 28, 31). Dr.
Webber diagnosed Huft with a cognitive disorder not otherwise specified, but
described her as organized and expected she would be a reliable employee. (Doc.
7-9, at 28). State agency physician Dr. Robert Bateen found after comparing the
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prior and current medical evidence of Huft’s mental impairments, including Dr.
Webber’s report, that her cognition had improved to a degree that would allow her
to return to work. (Doc. 7-9, at 75). The state agency physicians who assessed
Huft’s physical abilities similarly identified limitations consistent with the ability
to perform a range of medium work, and the ALJ gave them great weight in the
residual functional capacity assessment. (Doc. 7-2, at 24; 7-9, at 83; 7-9, at 124).
The ALJ discussed the medical evidence described above in his decision,
and substantial evidence supports his finding of medical improvement.
B.

Medical Opinions

Huft argues the ALJ did not give proper weight to the opinion of treating
psychologist Dr. Nancy Errebo.
A treating physician's opinion is entitled to greater weight than that of an
examining physician on the basis that he has a "greater opportunity to observe and
know the patient." Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). The
weight given a treating or examining physician’s opinion depends on whether it is
supported by sufficient medical data and is consistent with other evidence in the
record. 20 C.F.R. § 404.1527(d)(2).
Dr. Errebo saw Huft a total of four times between March and April 2013, for

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her PTSD. (Doc. 7-9, at 138-39). Dr. Errebo summarized their visits in writing,
and stated in conclusion that Huft had “been experiencing moderate to severe
PTSD since 2002 which has clearly compromised her social and occupational
functioning.” (Doc. 7-9, at 139). The ALJ considered Dr. Errebo’s opinion,
including her statement that Huft’s social and occupational functioning was
compromised, but did not explain how much weight he afforded it. (Doc. 7-2, at
22).
Huft argues the ALJ erred by failing to specify how much weight he was
giving Dr. Errebo’s opinion. But because the ALJ found that Huft’s PTSD was a
severe impairment and accommodated for PTSD-related limitations, any such
error was harmless. See Stout v. Commissioner Soc. Sec. Admin., 454 F.3d 1050,
1055 (9th Cir. 2006) (error is harmless where it is “nonprejudicial to the claimant
or irrelevant to the ALJ’s ultimate disability conclusion”). By definition, a severe
impairment is one that significantly limits the claimant’s ability to perform basic
work activities. Thus, by finding that Huft’s PTSD was a severe impairment, the
ALJ accepted that it compromised her social and occupational functioning to some
degree.
This is reflected in the ALJ’s discussion, wherein he found that Huft had

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moderate difficulties in social functioning and moderate difficulties with
concentration, persistence or pace. (Doc. 7-2, at 18). The ALJ accounted for those
limitations in the residual functional capacity assessment by restricting Huft to
work involving simple, repetitive tasks and not requiring her to adequately
respond to frequent changes in the workplace. See e.g. Rogers v. Commissioner of
Social Security, 2011 WL 445047, at *11-12 (E.D. Cal. Jan. 25, 2011)( residual
functional capacity assessment limiting a claimant to simple, repetitive tasks
adequately accounts for moderate limitations in social functioning); Stanley v.
Astrue, 2010 WL 4942818 *5 (E.D. Cal. Nov. 30, 2010) (residual functional
capacity assessment limiting a claimant to simple, routine, repetitive tasks
adequately accounts for moderate limitations in concentration, persistence, or
pace). The ALJ adequately considered Dr. Errebo’s opinion, and any error on his
part in not specifically explaining the weight he afforded it was harmless.
C.

Other Source Evidence

Huft contends the ALJ erred by not giving more weight to the opinion of
nurse practitioner Beth McGee.
Nurse practitioners are defined as “other sources,” not acceptable medical
sources. Huft cites Taylor v. Commissioner Soc. Sec. Admin., 659 F.3d 1228,

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1234 (9th Cir. 2012) for the proposition that a nurse practitioner who works closely
with a physician may qualify as an acceptable medical source. But because there
is no indication that McGee worked closely with a supervising physician, she is
properly considered an “other”source.
Other sources can provide evidence about the severity of a claimant’s
impairments and how they affect the claimant’s ability to work. See 20 C.F.R. §
404.1513. While an ALJ must provide specific and legitimate reasons based on
substantial evidence to discount evidence from an “acceptable medical source,”
evidence from an “other source” like McGee is not entitled to the same deference
and may be discounted if the ALJ provides germane reasons for doing so. Molina
v. Astrue, 674 F.3d 1104, 1111-12 (9th Cir. 2012).
McGee is a nurse practitioner with Montana Neurology, and treated Huft
between November 2010 and September 2011. (Doc. 7-8, at 198-223). In January
2014, McGee completed a Medical Source Statement of Ability to do WorkRelated Activities (Mental) on which she indicated that Huft’s mental impairments
caused marked limitations in several categories. (Doc. 7-10, at 38-40).
McGee also completed a headache questionnaire on which she stated that Huft has
migraine headaches three to four times a week, each lasting between two and 72

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hours. She stated that Huft would not be able to work during her headaches, and
would have to lie down and sit quietly. (Doc. 7-10, at 42-47).
The ALJ considered McGee’s medical source statement and headache
questionnaire but gave them only partial weight for two reasons. First, the ALJ
found that both opinions conflicted to an extent with her own treatment notes,
which more often than not reflected unremarkable physical examinations and
showed significant progress with treatment until Huft’s disability benefits were
brought up for review. (Doc. 7-2, at 25-26). The ALJ summarized McGee’s
treatment notes elsewhere in his decision. (Doc. 7-2, at 19). When Huft saw
McGee for the first time in November 2010, she reported frequent migraine
headaches, dizziness, and shoulder pain. Huft’s physical examination was
unremarkable, and when she returned for a follow up appointment the next month,
she reported that her newly prescribed medication eliminated her migraines and
completely relieved her shoulder pain. (Doc. 7-8, at 207-09). By February 2011,
Huft stated that her headaches had decreased significantly and her physical
examination was essentially normal. (Doc. 7-8, at 205). In April 2011, Huft
continued to report fewer headaches and less shoulder pain, and findings on
physical examination were once again essentially normal. (Doc. 7-8, at 202-04).

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In September 2011, McGee noted that Huft had apparently been notified that her
disability benefits were under review, and she reported having more frequent
headaches and increased shoulder pain. (Doc. 7-8, at 199). The ALJ permissibly
found that the extreme limitations McGee identified on the medical source
statement and headache questionnaire were not entirely consistent with her
treatment notes which, for the most part, reflected that Huft physical examinations
were normal and her headaches and shoulder pain improved with treatment.
Second, the ALJ discounted McGee’s opinion regarding the disabling
severity and frequency of Huft’s headaches because her responses in the headache
questionnaire appeared to rely quite heavily on Huft’s subjective reports, and
McGee “seemed to uncritically accept as true most, if not all, of what” Huft
reported. (Doc. 7-2, at 25). As discussed below, the ALJ provided sufficiently
clear and convincing reasons for finding Huft less than entirely credible. Having
done so he permissibly discounted McGee’s opinion to the extent it was based on
Huft’s subjective complaints. See Bray v. Comm’r of Soc. Sec., 554 F.3d 1219,
1228 (9th Cir. 2009) (explaining that where the ALJ has properly determined that a
claimant’s description of her limitations was not entirely credible, the ALJ could
reasonably discount a physician’s opinion “that was based on those less than

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credible statements.”).
These were sufficiently germane reasons for giving McGee opinions only
partial weight.
D.

Credibility

Huft argues the ALJ did not provide sufficiently clear and convincing
reasons for finding her only partially credible. If the ALJ finds “the claimant has
presented objective medical evidence of an underlying impairment which could
reasonably be expected to produce the pain or other symptoms alleged,” and “there
is no evidence of malingering, the ALJ can reject the claimant’s testimony about
the severity of her symptoms only by offering specific, clear and convincing
reasons for doing so.” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)
(internal quotation marks and citations omitted). Huft met this initial burden
because she provided evidence that she has underlying impairments that could
reasonably be expected to produce some degree of pain and other symptoms, and
the ALJ did not find that she was malingering.
The ALJ considered Huft’s testimony, but found her less than entirely
credible for a number of reasons. First, he pointed out that she had not received the
type of medical treatment that would be expected for a totally disabled individual.

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(Doc. 7-2, at 22). In particular, the ALJ found it significant that there were
virtually no medical records for the period between 2005, when Huft was awarded
disability benefits, and 2010. The ALJ permissibly questioned Huft’s credibility
based on the fact that she apparently received little medical treatment for her
allegedly disabling impairments during the five year period after she was awarded
disability benefits. See Burch v Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (“The
ALJ is permitted to consider lack of treatment in his credibility determination.”);
Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (stating that “evidence of
‘conservative treatment’ is sufficient to discount a claimant’s testimony regarding
the severity of an impairment”).
The ALJ further noted that when Huft did seek medical attention, she
appeared to respond very well to treatment. As the ALJ discussed elsewhere in his
decision, medical records after 2010 reflect that while Huft suffered some
setbacks, her migraines and shoulder pain responded well to treatment. In July
and August 2012, for example, Huft was showing improvement, her migraines
were much less intense, and her pain was over 80% better. (Doc. 7-9, at 109-10).
The ALJ permissibly discounted Huft’s subjective testimony in part because the
record reflects that Huft’s symptoms improved with treatment. See e.g. Warre v.
Commissioner, 439 F.3d 1001, 1006 (9th Cir. 2006); Morgan v. Commissioner of

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Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999).
The ALJ also cited evidence that Huft worked after 2005, albeit not at the
level of substantial gainful activity, as another reason for finding her less than
entirely credible. In particular, the ALJ noted that Huft had assisted at her
mother’s day care program and performed some data entry work for a friend’s
business in 2011. The ALJ properly found this evidence undermined Huft’s
testimony to the extent she alleged she was unable to work. See Bray v.
Commissioner of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009).
The ALJ also considered the fact that Huft seemed preoccupied with losing
her disability benefits, as noted by several medical providers. For example, Huft
remarked to Dr. Webber in March 2012 that she made only $10.00 an hour for her
typing work, and focused on comparing how much she could earn doing that work
with how much she received from her disability and medicare benefits. (Doc. 7-9,
at 29-30). See Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1020 (9th Cir.
1992) (ALJ permissibly considered “well documented motivation to obtain social
security benefits” when evaluating the claimant’s credibility).
The ALJ further found that Huft’s allegations regarding the frequency and
severity of her headaches and dizzy spells simply were not supported by the
record. For instance, Huft testified that she gets daily migraines that last a couple

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of hours and experiences dizziness in the mornings. But she did not mention any
problems with dizziness when Dr. Harrison performed his neuropsychological
evaluation in August and September 2012, and when she was placed on
prescription migraine medications she reported that her headaches decreased to
just two a month in February 2011.
The Court finds that these were sufficiently clear and convincing reasons for
finding Huft less than entirely credible.
E.

Lay Witness

Huft argues the ALJ erred because he did not provide germane reasons for
discounting third-party function reports provided by her mother and friend. (Doc.
7-6, at 128, 146). Huft’s mother wrote that Huft has short term memory problems,
suffers from dizziness, and has frequent headaches that “keep her down for days.”
(Doc. 7-6, at 146). Huft’s friend similarly wrote that Huft has memory problems,
headaches, and difficulty with daily activities. (Doc. 7-6, at 128).
It is well-established in the Ninth Circuit that the “ALJ must consider lay
witness testimony concerning a claimant’s ability to work.” Stout v.
Commissioner, 454 F.3d 1050, 1053 (9th Cir. 2006) (citing Dodrill v. Shalala, 12
F.3d 915, 919 (9th Cir. 2003); 20 C.F.R. §§ 404.1513(d)(4) & (e), 416.913(d)(4)
& (e)). “If the ALJ wishes to discount the testimony of lay witnesses, he must

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give reasons that are germane to each witness.” Stout, 454 F.2d at 1053 (quoting
Dodrill, 12 F.3d at 919). Competent lay witness testimony “cannot be disregarded
without comment.” Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996).
The ALJ considered the two third-party function reports at issue but gave
them little weight on the ground that they included extreme limitations that were
not consistent with the medical evidence. This was a germane reason for
discounting their statements. See Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th
Cir. 2005) (stating that “[i]nconsistency with medical evidence” is one “germane”
reason for rejecting lay witness testimony).
Even if the ALJ erred by not explaining his reasoning more thoroughly, any
error was harmless. Where, as here, the ALJ provides clear and convincing
reasons for rejecting the claimant’s own subjective complaints, and the lay witness
testimony is similar to the claimant’s complaints, any error in failing to discuss the
lay testimony is harmless. See Valentine v. Commissioner Soc. Sec. Admin., 574
F.3d 685, 694 (9th Cir. 2009) (upholding rejection of family member’s testimony,
which was similar to the claimant’s, for the same reasons given for rejection of the
claimant’s testimony); Molina v. Astrue, 674 F.3d 1104, 1115-17 (9th Cir. 2012).
Because the ALJ gave clear and convincing reasons for rejecting Huft’s subjective
complaints, and the lay witness statements largely reiterated those subjective

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complaints, any error on the ALJ’s part in failing to more specifically reject those
statements was harmless. See Valentine, 574 F.3d at 694.
F.

Medical Expert

Huft argues the ALJ erred by not eliciting testimony from a medical expert
regarding her mental impairments. Citing the Commissioner’s Hearings, Appeals,
and Litigation Manual (“HALLEX”), Huft maintains expert testimony was
necessary to interpret medical test results in the record. HALLEX requires
medical expert testimony if “there is a question about the accuracy of medical test
results, requiring evaluation of background medical test date.” HALLEX I-2-534(A)(1). Here, there is nothing in the record suggesting there is a question about
the accuracy of the medical test data. Thus, the HALLEX section Huft relies on
did not require the ALJ to obtain testimony from a medical expert.
Huft also argues medical testimony was necessary to determine whether she
had experienced medical improvement. (Doc. 14, at 27). Whether to consult a
medical expert is within the discretion of the ALJ. 20 C.F.R. § 404.1527(f)(2)(iii).
The record contains several medical opinions addressing and interpreting the
medical evidence, including those provided by Dr. Harrison, Dr. Webber, and the
state agency physicians. The ALJ reasonably relied on the medical opinions
already in the record for purposes of evaluating medical improvement, and Huft

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has not shown the ALJ abused his discretion by not calling a medical expert.
G.

Vocational Expert

Finally, Huft argues the ALJ’s hypothetical to the vocational expert was
flawed because it did not incorporate all of her physical and mental limitations. As
discussed above, the ALJ provided clearly and convincing reasons for finding
Huft only partial credible, and properly weighed the medical evidence in finding
that Huft had experienced medical improvement. Substantial evidence of record
supports the ALJ’s residual functional capacity assessment, which adequately
accounted for Huft’s physical and mental limitations. See Magallanes v. Bowen,
881 F.2d 747, 756 (9th Cir. 1989) (the ALJ need not include limitations not
supported by substantial evidence). Huft’s residual functional capacity was in turn
reflected in the hypothetical question he posed to the vocational expert.
VI.

Conclusion
For all of the above reasons, the Court concludes that the ALJ’s decision is

based on substantial evidence and free of legal error. Accordingly,
IT IS ORDERED that the Commissioner’s decision is affirmed.
DATED this 8th day of June, 2017

Jeremiah C. Lynch
United States Magistrate Judge

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