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)
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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