Gretchen Chapman obo Angela Sanders, deceased v. Commissioner, Social Security Administration

Filing 19

OPINION AND ORDER. Signed on 08/18/2014 by Judge Malcolm F. Marsh. (pvh)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON GRETCHEN CHAPMAN, ANGELA SANDERS, on behalf of 6:13-cv-00595-MA OPINION AND ORDER Plaintiff, v. COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant. KATHRYN TASSINARI ROBERT A. BARON Harder, Wells, Baron & Manning, P.C. 474 Willamette Street, Suite 200 Eugene, Oregon 97401 Attorneys for Plaintiff S. AMANDA MARSHALL United States Attorney ADRIAN L. BROWN Assistant United States Attorney 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97204-2902 GERALD J. HILL Social Security Administration Off ice of the General Counsel 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, Washington 98104-7075 Attorneys for Defendant 1 - OPINION AND ORDER MARSH, Judge Plaintiff, Gretchen Chapman, brings this action for judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying Angela disability insurance benefits Security Act (the Act) and Sanders's applications (DIB) under Title II of the Social supplemental security disability benefits under Title XVI of the Act. 401-434, 1381-1383f. U.S.C. § 405(g). for income (SSI) See 42 U.S.C. §§ This Court has jurisdiction pursuant to 42 For the reasons set forth below, I affirm the final decision of the Commissioner. PROCEDURAL BACKGROUND Ms. Sanders (Claimant) protectively filed applications for DIB and SSI on March 6, 2009, disorder, anxiety disorder, diabetes. Tr. 175. upon reconsideration. alleging disability due fibromyalgia, to bipolar severe depression, and Her applications were denied initially and An Administrative Law Judge (ALJ) held a hearing on November 18, 2011, at which Claimant was represented by counsel and testified. On December 1, 2011, the ALJ issued a decision Plaintiff not disabled within the meaning of the Act. passed away after the ALJ issued his decision, Appeals Council declined review. 2 - OPINION AND ORDER Claimant but before the Accordingly, substituted as a party in Claimant's place. finding Plaintiff After the Appeals Council declined review of the ALJ's decision, Plaintiff timely filed a complaint in this Court. FACTUAL BACKGROUND Born on September 27, 1969, Claimant was 39 years old on the alleged onset date of disability and 42 years old on the date of the hearing. Claimant obtained her high school equivalency and had past relevant work as a Sandwich Maker and Fitting Room Attendant. Tr. 67, 180. Claimant alleged her conditions became disabling on August 1, 2009. Tr. 42. Claimant testified about her limitations at the hearing and submitted an Adult Function Report. Tr. 43-66, 190-97. In addition, Plaintiff, Claimant's mother, submitted a Third Party Function Report. physical Tr. 198-205. Kurt Brewster, M.D., completed a examination. and submitted an opinion as physical limitations. Tr. 246-56. to Claimant's Michael R. Villanueva, Psy.D., completed a psychological examination and submitted an opinion as to Claimant's mental limitations. Tr. 259-63. Judith Eckstein, Ph.D., also conducted two psychological evaluations, and submitted opinions dated February 1, 2011, and January 12, 2012. 624-29. Megan D. through July 8, Nicoloff, Psy.D., Tr. 535-45, reviewed Claimant's records 2009, and submitted a Mental Residual Functional Capacity Assessment. Tr. 279-81. Finally, Sharon B. Eder, M.D., reviewed Claimant's records through July 16, 2009, and submitted a Physical Residual Functional Capacity Assessment. 3 - OPINION AND ORDER Tr. 282-89. THE ALJ'S DISABILITY ANALYSIS The Commissioner has established a five-step sequential process for determining whether a person is disabled. Yuckert, 482 U.S. 137' 404.1520(a) (4) (i)-(v), Steps One through Four. show that (1987); 20 C.F.R. Each 416. 920 (a) (4) (i)-(v). potentially dispositive. Cir. 1999). 140-42 Bowen v. §§ step is The claimant bears the burden of proof at Tackett v. Apfel, 180 F.3d 1094, 1098 (9th The burden shifts to the Commissioner at Step Five to a significant number of jobs exist economy that the claimant can perform. in the See Yuckert, national 482 U.S. at 141-42; Tackett, 180 F.3d at 1098. At Step One, the ALJ determined that Claimant did not engage in substantial August 1, gainful 2009. activity after See 20 C.F.R. §§ the alleged onset date, 404.1571 et seq., 416.971 et Claimant's depressive seq.; Tr. 18. At Step disorder, with Two, the ALJ panic disorder with agoraphobia, obsessive-compulsive abuse, found fibromyalgia, impairments. features, diabetes, See 20 C.F.R. §§ and remote morbid major personality disorder history obesity of were alcohol severe 404.1520(c), 416.920(c); Tr. 18-19. At Step Three, the ALJ determined that Claimant did not have an impairment or combination of impairments that meet or medically equal any listed impairment. See 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926; Tr. 19-20. 4 - OPINION AND ORDER The ALJ found Claimant had the residual functional capacity (RFC) to perform a range of medium work, except that Claimant was further limited ·to six hours of sitting and six hours of standing or walking in an eight-hour workday with normal breaks; frequent climbing of stooping, ropes, or stairs or kneeling, ramps, but crouching, scaffolds; unskilled only crawling, work occasional or that balancing, climbing ladders, involves routine, repetitive tasks and simple reasoning; occasional, brief contact with the general public; and tasks involving no teamwork. Tr. 20- 24. At Step Four, the ALJ found Claimant unable to perform any past relevant work. See 20 C.F.R. §§ 404.1565, 416.965; Tr. 24-25. At Step Five, the ALJ found that Claimant could perform jobs that exist in significant numbers in the national economy including Laundry Worker, Cleaner, and Folder. See 20 C.F.R. §§ 404.1569, 404.1569a, 416.969, 416.969a; Tr. 25-26. Accordingly, the ALJ found Claimant was not disabled within the meaning of the Act. ISSUES ON REVIEW Plaintiff raises four issues on appeal. First, Plaintiff argues the ALJ improperly rejected Claimant's testimony. Plaintiff maintains Eckstein's opinions. the ALJ erroneously failed to Second, credit Dr. Third, Plaintiff submits the ALJ improperly rejected the Mental Residual Functional Capacity Assessment of Dr. 5 - OPINION AND ORDER Nicoloff. because Finally, Plaintiff asserts the ALJ erred at Step Five the Cl~imant's vocational hypothetical did not include all of decision if the limitations. STANDARD OF REVIEW The Court must affirm the Commissioner's Commissioner applied proper legal standards and the findings are supported by substantial evidence in the record. 405(g); Andrews v. 1039 Shalala, 53 F.3d 1035, 42 U.S.C. (9th Cir. § 1995). "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Court must weigh all of the evidence, whether detracts from the Commissioner's decision. 807 F.2d 771, 772 (9th Cir. 1986). to more than one rational decision must be upheld. supports The or Martinez v. Heckler, If the evidence is susceptible interpretation, Andrews, it Id. the Commissioner's 53 F.3d at 1039-40. If the evidence supports the Commissioner's conclusion, the Commissioner must be affirmed; "the court may not substitute its judgment for that of the Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). DISCUSSION I. Claimant's Testimony Plaintiff first argues the ALJ improperly rejected Claimant's testimony. In deciding 6 - OPINION AND ORDER whether to accept subjective symptom testimony, an ALJ must perform two stages of analysis. § 404.1529. evidence First, of an 20 C.F.R. the claimant must produce objective medical underlying impairment that expected to produce the symptoms alleged. F. 3d 1273, 1281-82 (9th Cir. 1996). could reasonably be Smolen v. Chater, 80 Second, absent a finding of malingering, the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, convincing reasons for doing so. for rejecting a claimant's Id. at 1281. testimony substantial evidence in the record. must clear, and The ALJ's reasons be supported by See Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008). If an ALJ finds the claimant's testimony regarding her subjective symptoms unreliable, the "ALJ must make a credibility why testimony unpersuasive." Morgan v. Comm'r Soc. Sec. Admin., 169 F.3d 595, (9th Cir. 1999). In doing so, the is citing 599 the reasons determination the ALJ must identify which testimony is credible and which testimony undermines the claimant's complaints, and make "findings sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit [the] claimant's testimony." Cir. 2002). The ALJ credibility evaluation Thomas v. Barnhart, 278 F.3d 947, 958 (9th may rely upon in weighing the ordinary techniques claimant's credibility. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). 7 - OPINION AND ORDER of At the November 18, 2011 hearing, Claimant reported she stopped working at a Subway sandwich shop on June 6, 2010 because she was fired as a result of her medical issues. Tr. 4 6. Claimant testified that she could not work full-time at the time of the hearing because of a sciatic nerve problem, joint pain, hip and shoulder pain, two-to-three anxiety attacks per day, and bipolar disorder. Tr. 48-49. Claimant testified that these limitations caused her to occasionally require help getting out of bed and using the restroom. Tr. 50. As to her mental limitations, Claimant testified she began mental health treatment in September of 2009 because of depression. Tr. 52. Claimant explained that while her bipolar disorder causes her to occasionally have short periods during which she feels better, through the date of the hearing. Claimant reported that she her depression continued Tr. 53-54. cried frequently in her prior workplace, often fell asleep at work, and felt like her coworkers and supervisors were "talking bad" about her and "working against" her. Tr. 57-58. Claimant testified that her supervisor informed her that medication was affecting Claimant's work. Tr. 58. As to her daily activities, Claimant testified that her mother helped with vacuuming. the daily Tr. 56. chores, including laundry, dishes, and Claimant reported that her anxiety caused her to board up her windows and build a large fence so nobody could see her. Tr. 60. 8 - OPINION AND ORDER In her May 11, 2009, Adult Function Report, Claimant described her daily activities as waking up, preparing her youngest child for school with help from Claimant's mother, taking a nap, working from approximately 11:00 a.m. until 4:00 p.m., and then returning home Tr. 190. to take a nap, watch a movie, and go to bed. Claimant reported that her pain interrupts her sleep and that she sle€ps in a sitting position at times because laying down is uncomfortable. Tr. 191. Claimant noted difficulties bathing, caring for her hair, shaving, and using the restroom. Tr. 191. Claimant reported that she can only cook simple foods once per week and performs household chores for a "couple hours" once or twice per week. Tr. 192. Claimant checked that her conditions affect her abilities to lift, squat, bend, stand, reach, walk, sit, kneel, talk, climb stairs, remember, complete ·tasks, concentrate, understand, follow instructions, use her hands, and get along with others. Tr. 195. Claimant reported that she could lift more than 30 pounds and could walk approximately one-half mile before needing ten minutes of rest. Tr. Claimant 195. indicated she had difficulty "concentrating, thinking, and staying focused," such that she could only pay attention for approximately one-half hour. Tr. 195. Claimant reported that she cannot handle stress and has anxiety caused by "people, curtains." neighbors, Tr. 196. 9 - OPINION AND ORDER open windows[,] doors[,] and open The ALJ rejected Claimant's testimony because the medical evidence did not support the presence of a disabling physical condition, Claimant demonstrated inconsistent effort during medical and psychological examinations, and the record as a whole indicated Claimant's mental functioning was not disabling with the exception of a "relatively short period of dysfunction brought on by multiple Tr. psychosocial stressors." 22-24. I conclude these reasons constitute clear and convincing reasons, supported by substantial record evidence, to reject Claimant's testimony. The ALJ reasonably found that the medical record did not support Claimant's allegations of significant physical limitations. Indeed, "based on available medical record and findings on exam," Dr. Brewster opined Claimant had "minimal indication to limit claimant" although Dr. Brewster noted that.he had a limited medical record to review. Tr. 255. The record contains additional medical records concerning Claimant's physical impairments that were not available to Dr. evaluation, Brewster, but, consistent with Dr. they suggest modest limitations. Brewster's On June 17, 2010, Bryan McNutt, ANP, Claimant's primary care provider, submitted a letter noting indicated that impairments. 1 that Claimant Claimant Tr. 300. 1 was The carried primarily ALJ multiple limited reasonably diagnoses, by her mental noted the record Plaintiff agrees with the ALJ's assessment that psychological limitations were the primary cause of Claimant's alleged disability. Pl.'s Brief (#14) at 18. 10 - OPINION AND ORDER but concerning Claimant's physical limitations was inconsistent with Claimant's allegations of very serious physical impairments. Accordingly, the ALJ properly cited incongruence between Claimant's allegations as to her physical limitations and the medical record as a significant reason to reject Claimant's testimony. The ALJ also reasonably noted poor and inconsistent effort in examination as a reason to reject Claimant's testimony. Dr. Brewster noted that Claimant demonstrated positive Waddell's signs, and had "variable grip strength, at times varying by greater than 20 pounds indicating some inconsistency of effort." Brewster noted, volitional however, but may psychological issues) and function." were be Dr. that these inconsistencies "may not be related to non-physiological (i.e. which affect claimant's perception of pain Tr. 254. indications Tr. 254. Similarly, Dr. Eckstein noted that there that Claimant "endorsed items that present an unfavorable impression" which "raises the possibility of a mild exaggeration of complaints and problems." Tr. 541. Accordingly, the ALJ reasonably noted inconsistencies in Claimant's examination effort as a reason to discredit her testimony. Finally, mental the ALJ found that the record suggested Claimant's limitations were not disabling, with the exception of a period of exacerbation caused by psychosocial stressors. ALJ found that the record was inconsistent with allegations of continuous, severe mental impairments. 11 - OPINION AND ORDER Thus, the Claimant's This point was the ALJ's primary focus throughout the course of the disability evaluation. Although I acknowledge the evidence in this respect is susceptible to more than one rational interpretation, I conclude the ALJ's finding is supported by substantial evidence. As relevant to this case, Claimant first sought mental health treatment in September of 2009 after her hours were cut back at work and her boyfriend was in a serious auto accident. Tr. 525. Indeed, Claimant throughout late-2009 and portions of 2010, reported significant feelings of depression and anxiety. 481-82, 484-85, 487, 490-91, 513. ~, Tr. Throughout this period Claimant experienced a number of stressors that worsened her symptoms. As 2010 improvement. progressed, however, Claimant began to show On September 1, 2010, Claimant's primary clinician noted that Claimant had "less manic symptoms since referred here for [medication]," was "more alert," had "reduced" depression, and her panic attacks had decreased in frequency from several per day to three per week. 2010 Tr. 506. Treatment records throughout late- indicate that Claimant's mental health issues had largely moderated and stabilized. ~Tr. 452, 453, 455-56, 458, 462-63. On December 8, 2010, after Claimant discovered that her daughter had been the victim of sexual assault, Claimant reported that "her mood was stable prior to this revelation, and she had been doing well with her medication." 12 - OPINION AND ORDER Tr. 450. Claimant's mental heal th after this traumatic discovery. symptoms understandably Tr. 439-50. worsened By February of 2011, however, Claimant's symptoms were improving again, with diminishing depression and anxiety, and Claimant's medication significant difference for her with her emotions." March and April, making "a Tr. 434-38. By Claimant's depression and anxiety were largely well-controlled with a change in her medication. Tr. 604-05. Over the course of the next several months, Claimant reported mild or moderate depression and stressors in her life. anxiety even with several significant Tr. 599-603. Throughout the rest of the period leading up to the hearing, Claimant's psychological symptoms remained largely stable. Although Claimant had occasional setbacks related to incidents in her family, she frequently reported significant improvement. Tr. 590, 597-98. See For example, in June of 2011, Claimant indicated she did not feel depressed, noted her mood was "stable" and called her anxiety "manageable." Tr. 599. reported having a "wonderful week." On July 27, Tr. 596. 2011, Claimant On August 10, 2011, Claimant reported she was "doing wonderful" and her mood was good and stable despite family stressors, and although she had periods of high anxiety, Tr. 593-94. it was manageable and panic attac.ks were rare. Again on August 31, 2011, Claimant reported "doing wonderful" and "feeling good" despite stress and being behind on bills. Tr. 591. After a difficult week in late-September of 2011, 13 - OPINION AND ORDER Claimant still reported "doing awesome" and being. "very pleased with the way she is doing" depression "within normal with self-ratings limits." Tr. for 586-88. anxiety and This pattern continued into November of 2011, the same month as the hearing, in which Claimant reported "doing very well" for weeks. four consecutive Tr. 582. Thus, the ALJ rationally found that Claimant's functioning improved throughout the treatment record up to the date of the hearing, notwithstanding some periods of poor functioning secondary to considerable social stressors. The ALJ' s finding in this respect is markedly inconsistent with Claimant's testimony at the hearing that experienced she had two-to-tnree significant panic depression, attacks and only improvement during occasional manic periods. Tr. per day, experienced 48-49, 53-54. Accordingly, this is a convincing reason, supported by substantial evidence, to reject Claimant's testimony as to the severity of her psychological symptoms. In sum, Claimant's I conclude testimony, convincing reasons the taken ALJ's reasons together, for discrediting constitute supported by substantial evidence. clear and The ALJ properly weighed Claimant's testimony. II. Medical Testimony Plaintiff opinion of Ors. next argues the ALJ erred Eckstein and Nicolo ff. 14 - OPINION AND ORDER in discrediting the The Commissioner must provide clear and convincing reasons to reject the uncontradicted opinion of a treating or examining physician. F.3d 821, 830-31 (9th Cir. 1995). Lester v. Chater, 81 Where a physician's opinion is contradicted by that of another physician, the ALJ may reject the physician's opinion by providing specific and legitimate reasons Id. supported by.substantial evidence in the record. "'TheALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings.'" 661, 671 (9th Cir. 2012) Chaudhry v. Astrue, 688 F.3d (quoting Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009)). the " 'Tflhere evidence, the ALJ is record contains charged with determining resolving the conflict.'" Id. F.3d 1030, 1040 (9th Cir. 2003)). translating the claimant's limitations in the RFC. is "consistent testimony." with credibility (quoting Benton v. medical medical and Barnhart, 331 The ALJ is responsible for conditions into functional See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). it conflicting Ultimately, the RFC is sufficient if restrictions identified in the medical Id. A. Dr. Eckstein Dr. Eckstein conducted opinions for the record. two evaluations and submitted two In the first opinion, dated February 1, 2011, Dr. Eckstein noted that Claimant's "daily activities appear 15 - OPINION AND ORDER to be limited by her chronic pain issues," as well as "chronic depression and [Claimant's] anxiety use issues that are still of psychotropic medications." evident Tr. despite 542. Dr. Eckstein also noted that Claimant reported "ongoing difficulty with Tr. concentration" as well as short-term memory deficits. 542. Dr. Eckstein opined that she believed it was "unlikely that Ms. Sanders could complete a full work day without significant interruptions from both medical and psychological issues." 542. Tr. Dr. Eckstein also reported that Claimant would have marked limitations in her ability to appropriately to criticism. accept instructions and respond Tr. 545. In the second evaluation, performed on January 12, 2012, after the ALJ issued his decision, Dr. Eckstein again found that Claimant had "significant psychological impairment that is likely to be long-standing if not permanent in duration." Tr. 627 .· Dr. Eckstein's diagnoses "remained the same as those given at the time of [Dr. Eckstein's] previous evaluation on February 1, 2011 with no improvement noted." Tr. 627. The ALJ only partially credited Dr. Eckstein' s opinion because it was inconsistent with the improvements in Claimant's functioning in the record. Because Dr. Eckstein's opinions were contradicted by the lesser findings of Dr. Villanueva, the ALJ was required to cite specific opinions. and legitimate reasons I conclude the ALJ did so. 16 - OPINION AND ORDER to reject Dr. Eckstein' s As discussed above, the ALJ reasonably found that Claimant demonstrated significant after Dr. February Eckstein' s 1, 2011, improvement first in her mental evaluation. evaluation took Indeed, place functioning Dr. near Eckstein' s the nadir of Plaintiff's psychological functioning in the wake of the discovery of Claimant's daughter's sexual assault. Under the ALJ's reasonable interpretation of Claimant's mental heal th treatment record, this was a compelling reason to partially reject Dr. Eckstein's opinion. Although the ALJ never had an opportunity to consider Dr. Eckstein's second opinion dated January 12, 2012, the ALJ's same basic rationale applies with equal force; was inconsistent with the ALJ's Dr. Eckstein's opinion reasonable interpretation of considerable portions of Claimant's treatment records throughout 2010 and 2011. 2 It is clear from Dr. Eckstein's 2012 opinion that she did not believe Claimant's psychological functioning improved since her original evaluation in February of 2011. finding to evidence. the contrary, Accordingly, however, Dr. is supported by Eckstein's 2012 substantial opinion deprive the ALJ's decision of substantial evidence. 2 The ALJ' s does not Brewes, 682 When the Appeals Council considers evidence that was not before the ALJ in denying review, the court reviews the entire record, including the evidence submitted first to the Appeals Council, to determine if the ALJ's opinion is still supported by substantial evidence. Brewes v. Comm'r Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012). 17 - OPINION AND ORDER F.3d at 1163. The ALJ appropriately weighed Dr. Eckstein' s Plaintiff next argues that the ALJ rejected Dr. Nicoloff's opinions. B. opinion Dr. Nicoloff because limitations tolerate the ALJ concerning and failed the specifically to of type incorporate supervisor addressing persistence, and pace capabilities. into the Claimant Claimant's RFC could concentration, The ALJ gave great weight to Dr. Nicoloff's opinion along with the other reviewing opinions. Tr. 23. Accordingly, the RFC and vocational hypothetical must be reasonably consistent with Dr. Nicoloff's opinion. Stubbs- Danielson, 539 F.3d at 1174. 1. Concentration, Persistence, and Pace With respect to concentration, persistence, and pace, Dr. Nicoloff opined that "[Claimant] displays the ability to organize [and] direct her behavior [andl to carry out simple [and] routine tasks that do not require sustained concentration or vigilance." Tr. 281. Dr. Nicoloff also noted that "[Claimant] exhibits the capacity to understand [and] remember short[,] simple directions," and "would follow." do Tr. best 281. [with a] predictable workplace routine to The ALJ limited Claimant to "unskilled work that involves routine, repetitive tasks and simple reasoning." 21. 18 - OPINION AND ORDER Tr. I find this limitation is a reasonable translation of Dr. Nicoloff's opinion because it appears Dr. Nicoloff assessed ,_ Claimant as capable of performing the simple, routine, repetitive It_is not clear from the work to which the ALJ limited Claimant. face of Dr. Nicoloff's opinion whether Dr. Nicoloff intended the note about additional "sustained concentration limitation on the routine tasks" or merely a routine tasks," concentration by or interpretation. their or vigilance" to be an restriction regarding "simple and phrase nature, vigilance." clarifying that do The not ALJ "simple and require adopted "sustained the latter Because that is a reasonable interpretation of the opinion, the ALJ's translation of Dr. Nicoloff's opined limitations in this respect is entitled to deference. 2. Interaction with a Supervisor Dr. Nicoloff also opined that Claimant "should not be expected to work in close cooperation with coworkers and will respond to a routine, supportive lay supervisor critical style)." include a Tr. 281 (not overly harsh or highly The ALJ did not (emphasis added). limitation concerning Claimant's ability to react to overly harsh or highly critical supervisors in the RFC. Read as a whole, this segment of Dr. Nicoloff' s provides that Claimant can work under "routine, supervisor [ s] , " but that there may be some opinion supportive lay "overly harsh" or "highly critical" supervisors to which Claimant could not respond. 19 - OPINION AND ORDER Tr. 281. Dr. Nicoloff's use of the adjective "routine" to describe an appropriate supervisor juxtaposed against the use of the phrases "overly harsh" and "highly critical" to describe an inappropriate supervisor Claimant for Claimant makes could work under a clear that typical Dr. Nicolo ff supervisor, thought but may have trouble responding to an atypically harsh or critical supervisor. Even if the ALJ erred in failing to include this limitation in the RFC, such error was determination." 1055 ALJ error is harmless if such error would be harmless. (9th Cir. "inconsequential to the ultimate nondisability Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 2006). As noted above, Dr. Nicoloff's opinion concerning overly harsh and critical supervisors did no more than indicate that Claimant may have difficulties supervisors who are atypical in this respect. dealing with This limitation has nothing to do with the nature of the work Claimant could perform, but rather could at most reduce the number of jobs available to Claimant in the fields cited by the ALJ. The Ninth Circuit has held that as few as 25,000 jobs available in the national economy or 900 jobs available in the regional economy are sufficient to constitute jobs in "significant numbers." Gutierrez v. Comm'r Soc. Sec. Admin., 740 F.3d 519, 529- 30 (9th Cir. 2014); Yelovich v. Colvin, 532 F. App'x 700, 702 (9th Cir. 2013). The jobs relied upon by the ALJ represent, in combination, 1,355,000 jobs in the national economy and 6,715 jobs 20 - OPINION AND ORDER in Oregon. the (1,355,000/25,000) national These numbers are, Tr. 25. economy and significance 7.46 times respectively, 54.2 times threshold for the (6, 715/900) threshold for jobs in the regional economy. jobs in the significance In light of the number of jobs cited by the ALJ, a relatively marginal reduction in the number of jobs available to Claimant to accommodate her inability to respond to atypically harsh or critical supervisors, then, could not undermine the ALJ's finding that a significant number of jobs existed in the fields cited that Claimant could perform. Thus, any error in failing to incorporate Dr. Nicoloff's opinion concerning would be "inconsequential to the ultimate nondisability determination." See overly harsh or highly Stout, 454 F ..3d at 1055. critical supervisors The ALJ did not commit harmful error in his consideration of Dr. Nicoloff's opinion. III. Adequacy of the Vocational Hypothetical Finally, Plaintiff argues the vocational hypothetical was insufficient to permit the ALJ to rely on the VE's testimony to carry the Commissioner's burden at Step Five for two reasons. First, Plaintiff submits the hypothetical omitted limitations found by Drs. Eckstein and Nicoloff. vocational hypothetical did Second, not Plaintiff asserts include a the concentration, persistence, and pace limitation the ALJ included at Step Two of the sequential analysis. 21 - OPINION AND ORDER A vocational hypothetical is sufficient if it includes all of the claimant's limitations that the ALJ finds supported by substantial evidence in the credible and are record. Bayliss Barnhart, 427 F.3d 1211, 1217-18 (9th Cir. 2005). v. I conclude the vocational hypothetical was sufficient to permit the ALJ to rely on the VE's testimony at Step Five. Plaintiff's first argument is foreclosed by the discussion Because, above. as discussed above, the ALJ did reversible error in weighing the opinions of Drs. Nicoloff, the vocational hypothetical was not commit Eckstein and sufficient in this because the respect to carry the Commissioner's burden at Step Five. Plaintiff's second limitations prescribed necessarily the same argument in as the those is Step in the incorrect Three analysis The RFC. RFC, are and not by extension the vocational hypothetical, are sufficient where the ALJ properly considers "the step-3 limitations along with 'all of the relevant evidence in the case record.'" App'x 794, 796 (9th Cir. 2012) at *4 (July 2, similar 1996)) argument Israel v. Astrue, 494 F. (quoting SSR 96-Sp, 1996 WL 374184, (emphasis in original). concerning inclusion of In addressing a concentration, persistence, or pace limitations at Step Three but not an identical limitation in the RFC, the Israel court analogized to Stubbs- Danielson and found that an RFC "'adequately captures restrictions related to concentration, persistence, or pace where the assessment 22 - OPINION AND ORDER is consistent testimony.'" with Id. restrictions identified in the medical (quoting Stubbs-Danielson, 539 F.3d at 1174). Here, like Israel, the ALJ included a moderate limitation in concentration, persistence, or pace at Step Three, but only limited Claimant to "unskilled work that involves routine, repetitive tasks and simple reasoning." Tr. 20-21. This limitation adequately captures the restrictions related to concentration, persistence, or pace because it is reasonably consistent with the opinions of Dr. Nicoloff, as noted above, and Dr. Villanueva. that Claimant was "able to psychological examination). maintain See Tr. 262 (noting adequate attention" in a Accordingly, I conclude the ALJ's RFC and vocational hypothetical were sufficient. CONCLUSION For the foregoing reasons, the decision of the ALJ AFFIRMED. IT IS SO ORDERED. DATED this~ day of August, 2014. Malcolm F. Marsh United States District Judge 23 - OPINION AND ORDER is

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