Schwartz v. Commissioner Social Security Administration
Filing
20
Opinion and Order regarding Social Security Complaint 1 : The Commissioner's final decision is affirmed. Signed on 7/28/16 by Judge Robert E. Jones. (ljb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
EUGENE H. SCHWARTZ,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
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6: l 5-CV-00534-JO
OPINION AND ORDER
JONES, J.,
Plaintiff, Eugene Schwmiz ("Schwmiz") appeals the Commissioner's decision denying his
application for disability insurance benefits and supplemental security income under Titles II and
XVI of the Social Security Act. The cou1t has jurisdiction under 42 U.S.C. § 405(g). I affirm the
Commissioner's decision.
PRIOR PROCEEDINGS
Schwmiz filed applications under Titles II and XVI, alleging disability beginning October
1, 2010, due to cardiomyopathy, congestive hemi failure, ventricular tachycm·dia, and sleep apnea.
Admin. R. 18, 20, 307. Schwartz satisfied the insured status requirements through December 31,
2015, and must establish disability on or before that date to prevail on his Title II claim. Admin. R.
18.
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OPINION AND ORDER
The ALJ applied the five-step analysis outlined in the regulations to determine whether
Schwmiz was disabled. Admin. R. 19-20. The ALJ determined that hemi failure, cardiomyopathy,
and obesity limited Schwmiz's ability to work and that he, therefore, satisfied the de minimus
severity requirement of step two. Admin. R. 22. The ALJ then determined that Schwartz's
impairments did not meet or equal the criteria for any of the presumptively disabling impahments
listed in Appendix 1 of 20 C.F .R. Part 404, Subpmt P ("Listed Impairments"). Admin R. 23.
Because Schwartz failed to prove that his impahments were equivalent to any of the Listed
Impahments, the ALJ was required to assess his residual functional capacity ("RFC"). She found
that, despite his impairments, he could lift or ca1Ty in the light range, push or pull ten pounds, stand
or walk for a total of approximately two hours and sit for approximately six hours in an eight-hour
workday with no1mal breaks. She found that Schwmiz had limited ability to climb and to engage
in postural activities such as balancing, stooping, kneeling, and so forth. She found that Schwartz
required work where he could avoid airbome pulmonmy hTitants and concentrated exposure to
workplace hazards. Admin. R. 23-24.
The vocational expert ("VE") testified that a hypothetical worker with Schwartz's RFC
would be able to perfo1m the job requirements of sedentmy unskilled occupations such as phone
solicitor, order clerk, and document prepmer, which together represent more than 400,000 jobs in
the national economy. Admin. R. 31-32. Thus, the ALJ concluded that Schwartz was not disabled
within the meaning of the Social Security Act. Admin. R. 30.
STAND ARD OF REVIEW
The district comt must affirm the Commissioner's decision if it is based on proper legal
standards and the findings of fact are supported by substantial evidence in the record as a whole. 42
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OPINION AND ORDER
U.S.C. § 405(g); Batson v. Comm 'r ofSoc. Sec. Adm in., 359 F.3d 1190, 1193 (9th Cir. 2004). Under
this standard, the Commissioner's factual findings must be upheld if supported by inferences
reasonably drawn from the record even if evidence exists to support another rational interpretation.
Batson, 359 F.3d at 1193; Andrews v. Shala/a, 53 F.3d 1035, 1039-40 (9th Cir. 1995).
DISCUSSION
I.
Claims of Error
The claimant bears the burden of showing that the ALJ erred and that any enor was harmful.
lvfcLeod v. Astrue, 640 F.3d 881, 886-87 (9th Cir. 2011 ). First, Schwartz claims that the ALJ failed
to adequately evaluate evidence demonstrating that he met the criteria for section 4.02 of the Listed
Impairments. Second, Schwmiz claims the ALJ failed to assess his RFC accurately because she
improperly found his subjective statements less than fully credible and gave inadequate weight to
the opinions of Dr. Anthony Garvey and Dr. Carmelindo Siqueira. He contends these enors led the
ALJ to reach an RFC assessment that did not accurately reflect all of his functional limitations and
to conclude erroneously that he could perform work related activities beyond his capacity.
II.
Listing 4.02
At step three of the decision making process, the claimant bears the burden of showing that
his impairments satisfied the criteria for a Listed Impahment for a continuous period of 12 months.
Burch v. Barnhart, 400 F.3d 676, 682-83 (9th Cir. 2005); Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir.
2001); Roberts v. Shala/a, 66 F.3d 179, 182-83 (9th Cir. 1995). Schwartz contends the ALJ erred
by finding he did not satisfy the criteria for Listing 4.02 Chronic heart failure.
To satisfy Listing 4.02, a claimant must demonstrate that he satisfied the criteria in both
paragraph A and paragraph B. Paragraph A requires the claimant to show that he maintained an
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OPINION AND ORDER
"ejection fraction of30% or less during a period of stability." 20 C.F.R. pt. 404 subpt. P, app. 1 §
4.02A. The ALJ conectly noted that Dr. Garvey found Schwmiz had a stable ejection fraction that
exceeded the listing criteria at 35%. Admin. R. 23, 4 70, 695. Accordingly, Schwmiz failed to show
that he satisfied paragraph A of the Listing.
Furthe1more, even if Schwmiz had shown an ejection fraction of 30% or less, he did not
present credible evidence that he satisfied the other necessmy criteria. Paragraph B requires a
claimant to show that (I) persistent symptoms of hemi failure ve1y seriously limited his ability to
independently initiate, sustain, or complete activities of daily living and that a specialist in
cardiovascular disease concluded that the performance of an exercise test would present a significant
risk, or (2) that he suffered three sepm-ate episodes of acute congestive heart failure within a
consecutive period of 12 months, or (3) that he is unable to perf01m an exercise tolerance test due
to specific symptoms of hemi failure. 20 C.F.R. pt. 404 subpt. P, app. 1 § 4.02B. Schwartz
independently engaged in a range of daily activities and no physician concluded that an exercise test
would present a significant risk to him. Admin. R. 23, 24, 26-27, 327-328. Schwartz did not present
evidence of three separate episodes of acute congestive heart failure within a 12 month period.
Admin. R. 23. The record reflects that he was able to perf01m exercise tolerance tests. Admin. R.23,
476, 551. Schwmiz failed to show that he satisfied paragraph B of Listing 4.02.
I find no error in the ALJ' s evaluation of the evidence pe1iaining to the criteria for Listing
4.02. That evidence supports the ALJ's conclusion that Schwmiz failed to establish the criteria for
the listing.
Ill
Ill
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OPINION AND ORDER
III.
RFC Assessment
Schwartz contends the ALJ failed to assess his RFC accurately because she improperly
discredited his subjective statements and discounted the opinions ofDrs. Garvey and Siqueira.
A.
Credibility Determination
In his written application, Schwartz alleged that his impairments limited his ability to lift,
squat, bend, stand, reach, walk, sit, kneel, talk, hear, climb stairs, see, remember, complete tasks,
concentrate, understand, follow instructions, and get along with others. Admin. R. 331. He claimed
that he had no energy, lacked stamina, suffered from dizzy spells and forgetfulness, and was often
incoherent or out of breath. He stated that when he was agitated or scared, it felt like his heart would
"pound out of' his chest, and that he often suffered from symptoms ofve1iigo while riding in a car.
He alleged that his symptoms were extreme in the afternoon, but less severe in the morning. He
stated that he would forget to breathe and become extremely emotional. Admin. R. 326.
During his administrative hearing, Schwmiz said that he required frequent bathroom breaks
and did not have clear command of his mental capabilities. Admin. R. 59. He said that he was dizzy
most of the day, and asserted that his hands could go numb and affect his ability to do even sedentmy
work. Admin. R. 66. He stated that he had difficulty breathing when sitting, and that he would
break into a coughing fit if he encountered anyone wearing perfume or cologne. He would have to
lie down ifhe became exasperated. Admin. R. 57- 59. He asserted he could walk up to 150 yards
before needing a break on a good day but would spend most of the day lying down. Admin. R. 6768.
The ALJ believed Schartz's medically dete1minable impairments could reasonably be
expected to produce some degree of the symptoms he claimed and she accepted some of his
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allegations. For example, the ALJ's RFC assessment acknowledged a very limited capacity for
physical exertion and exposure to pulmonary initants such as fumes, odors, dusts, and gases.
Admin. R. 24. The ALJ discounted Schwaiiz's credibility regarding the limiting effects of his
impairments. Admin. R. 24. She did not believe his impaiiments imposed functional limitations
exceeding those in the RFC assessment. Admin. R. 25.
An adverse credibility dete1mination must include specific findings suppo1ied by substantial
evidence and a clear and convincing explanation. Carmickle v. Comm 'r, Soc. Sec. Admin., 533 F.3d
1155, 1160 (9th Cir. 2008); Smolen v. Chafer, 80 F.3d 1273, 1281-82 (9th Cir. 1996). The findings
must be sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily
discredit the claimant's testimony. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). In
assessing credibility, an ALJ must consider all the evidence in the case record, including the
objective medical evidence, the claimant's treatment history, medical opinions, daily activities, work
history, the observations ofthird parties with knowledge of the claimant's functional limitations, and
any other evidence that bears on the consistency and veracity of the claimant's statements.
Tommasetti, 533 F.3d at 1039; Smolen, 80 F.3d at 1284.
The ALJ's written decision shows that she found Schwartz's alleged limitations to be
inconsistent with the objective medical evidence and his reports to treatment providers. Admin. R.
28. The ALJ cited numerous records demonstrating that Schwaiiz' s fatigue and dizziness were less
severe than alleged. In 2012, for example, he reported that he felt dizzy if he stood too quickly or
walked up a flight of stairs, but did not claim persistent dizziness. Admin. R. 476. In April, 2013,
he repmied that his extreme fatigue was "somewhat episodic" rather than the constant fatigue he
claimed in his application. Admin. R. 633-34, 696.
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His self-reported symptoms of urinary
frequency are also contradicted by the record, and the ALJ cited specific medical reports in which
he denied urinaiy urgency. Admin. R. 26, 633, 672, 676. Though he complained of numbness in
his hands in his hearing, the record shows that Schwaitz repeatedly denied any sensory disturbances
or parasthesias. Admin. R. 661, 672, 680. His medical record also contradicts Schwmtz's reported
inability to concentrate. For instance, a progress notes indicate that Schwaitz had "normal attention
span and concentration." Admin. R. 634. Other progress notes repo1t that Schwmtz had "no
complaints" and was "doing well." Admin. R. 693, 705.
Although Schwaitz said that his heart felt like it would pound out of his chest at times, his
implanted cardioverter defibrillator kept a record of palpitations and showed no tachycardia and
normal rhythm. Admin. R. 629. Other records do not suppo1t his contention that he could only walk
150 yards, as treatment notes report that he could walk up to a mile, though he would feel fatigued
the next day. Admin. R. 716. During an exercise test, he was able to converse without difficulty
while walking on a treadmill after his beta blocker was changed to coreg, and he reported that he had
not suffered from any chest pain or discomfort. Admin. R. 424, 666-67. Schwartz identified records
demonstrating that he also repo1ted shortness of breath and dizziness at times. Despite this, the ALJ
interpreted the evidence rationally and her factual findings must be upheld even ifthe evidence could
be interpreted differently in a manner more favorable to Schwartz. Batson, 359 F.3d at 1193.
Admin R. 697. I find no enor in the ALJ' s dete1mination that Schwartz was not fully credible in
describing his functional limitations.
The ALJ also identified evidence that Schwartz's condition improved with his ICD and
medication adjustments. An ALJ may consider evidence of improvements from treatment in
determining the severity of symptoms. Valentine v. Comm 'r ofSoc. Sec. Admin., 574 F.3d 685, 693
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OPINION AND ORDER
(9th Cir. 2009); lvforgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); 20
C.F.R. §§ 404.1529(c)(3). The ALJ cited records from February 2012 reporting that Schwmtz's
energy levels had increased and that his dizziness had improved and occurred less frequently after
he began using a CPAP machine. Admin. R. 26, 580. She also noted that, in October of2012,
Schwartz repmted that he was walking on a regular basis, and had more energy after he stopped
taking digoxin. Admin. R. 26, 689-90. In 2012, after slatting epelerenone, Schwartz's overall
symptoms and dizziness improved and he was experiencing fewer dizzy spells. Admin. R. 580.
These instances demonstrate Schwaitz's symptoms improved with treatment, and suppmt the ALJ's
determination that his symptoms were less severe than he reported.
The ALJ noted that Schwartz's daily activities included preparing meals, doing chores and
playing video games with his children, helping to take care of his dogs, shopping occasionally, and
driving. Schwattz contends that the ALJ misinterpreted the evidence of his ability to unde1take these
activities in fmmulating his RFC. An ALJ can support her credibility dete1mination with evidence
that daily activities suggest greater functionality than repo1ted, even if another interpretation is
possible. Rollins v. lvfassanari, 261F.3d853, 857 (9th Cir. 2001). Here, the ALJ could rationally
conclude Schwartz's ability to take patt in these activies suggested his impairments were less severe
than claimed. Fmthermore, though Schwartz claims that the ALJ relied excessively on his reported
daily activities to support her credibility determination, her written decision demonstrates that she
also relied on inconsistencies between Schwaitz's claims and the objective medical evidence and
the reports he gave to treatment providers.
The ALJ's findings are supported by substantial evidence in the record and are sufficiently
specific for me to conclude that the ALJ did not arbitrarily discredit Schwartz's statements. Her
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OPINION AND ORDER
reasoning is specific, clear and convincing and the credibility determination will not be disturbed.
Tommasetti, 533 F.3d at 1039; Carmickle, 533 F.3d at 1160.
B.
Medical Opinions.
Carmelindo Siqueira. }vJD.
A cardiology specialist, Dr. Siqueira first evaluated Schwartz in June 2012 and saw him for
regular follow up visits and medication management. He diagnosed cardiomyopathy, morbid
obesity, and obstructive sleep apnea. He noted that Schwm1z had a hist01y of ventricular tachycardia
and an implanted cardioverter defibrillator ("ICD"). Admin. R. 673, 678, 682. In September 2012,
Schwartz reported occasional dizziness, but denied vertigo or sensoty disturbances. Schwartz said
he had localized joint pain without stiffness or muscle aches. Ad min. R. 677. In December 2012,
Schwartz said he felt well and had no muscle aches or pain and Dr. Siquiera found he had normal
heart rate and rhythm. Admin. R. 672-73. In February 2013, Dr. Siquiera continued to report the
same diagnoses, but noted that Schwartz's activities of daily living were notmal and that Schwartz
denied chest pain or discomfort, palpitations, and rapid heart rate. Admin. R. 667. Dr. Siquiera
counseled Schwartz to decrease his caloric intake, increase exercise, and lose weight. Admin. R.669
Based on this treatment hist01y, Dr. Sequeira offered two opinions regarding Schwartz's
limitations. In August 2012, Dr. Sequeira wrote a letter briefly stating Schwartz's diagnoses and
history ofICD implantation. Dr. Schwartz then opined that Schwartz was "disabled and unable to
seek employment at this time." Admin. R. 493.
The ALJ gave no weight to Dr. Siqueira's brief disability opinion. Admin. R. 27. An ALJ
may discount a medical opinion, even that of a treating physician, for clear and convincing reasons
supported by substantial evidence or, ifthe opinion is contradicted by other medical opinions, for
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specific and legitimate reasons. Tommasetti, 533 F.3d at 1041; Bayliss v. Barnhart, 427 F.3d 1211,
1216 (9th Cir. 2005); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). The ALJ gave
adequate reasons here. The ALJ noted that Dr. Schwartz's opinion was simply a conclusion on the
ultimate question of disability, which is reserved to the Commissioner. Admin. R. 27. An ALJ need
not accept a treating physician's opinion that is brief and concluso1y in fonn with little in the way
of clinical findings to support its conclusion. i'vlangallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.
1989). Notably the letter was a single sentence and did not identify specific functional limitations
or work related activities that Schwartz could not perfonn. Accordingly, it did not state a medical
opinion as much as a vocational opinion for which Dr. Sequeira had no special qualification. As the
ALJ observed, there is no indication that Dr. Sequiera defined "disability" consistently with the
definition used in adjudicating disability claims under the Social Security Act, for example. Admin.
R. 27. In addition, the record showed that Schwmiz reported improvement in his condition when
Dr. Siquiera adjusted his medications shortly after writing this disability letter. Admin. R. 27, 689.
The ALJ rationally infened that the letter did not accurately reflect Schwmiz' s level of impairment
because it did not account for his improvement. The ALJ did not err by discounting Dr. Siqueira's
letter of August 2012.
In June 2013, Dr. Sequeira completed a functional assessment form for Schwmiz. Admin.
R. 732. He indicated that Schwartz could occasionally lift or cany 20 pounds, and frequently carry
less than 10 pounds. Admin. R. 730. He estimated that Schwartz could walk or stand for less than
two hours in an eight hour work day and required more than normal breaks. Admin. R. 730. He
indicated Schwmiz could sit and perform activities like the assembly of products for less than about
6 hours in a typical workday. He indicated that Schwmiz could rarely climb, balance, kneel, crouch,
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OPINION AND ORDER
crawl, and so forth. He said that pushing or pulling weights less than 10 pounds would cause an
increase in symptoms if it were done more than two and a half hours per day. He reported that
Schwmiz could occasionally reach and handle, and frequently perfonn fine manipulations and feel
with his fingers and skin receptors. Admin. R. 732. He wrote that Schwartz continued to have
shortness of breath with minimal activities and occasional dizziness. He repmied that Schwartz's
main problem was a severe weakness of the hemi, and despite having an ICD, he continued to have
periods of dangerous hTegular heart beats. He opined that Schwartz had marked limitation of
physical activity and that his blood pressure was marginal due to poor function of his heart. Admin
R. 732.
The ALJ assigned some weight to this opinion and her RFC assessment acknowledged
limitations in most of the same functional areas as Dr. Siqueira. Where the ALJ found Schwmiz
capable of standing for a total of two hotirs in a work day, Dr. Siqueira indicated his maximum was
less than two hours. The ALJ found he could sit for a total of about six hours in a workday, but Dr.
Siqueira said he was capable of less than about six hours. The ALJ limited Schwmiz to occasional
postural activities that Dr. Siqueira said he could perform rarely. The ALJ did not accept Dr.
Siqueira's opinion that Schwatiz required excessive breaks or that he had manipulative limitations.
Admin. R. 23-24, 28.
Schwatiz contends the ALJ did not assign appropriate weight to Dr. Sequeira's functional
assessment form because she "preferred" the opinions of two state agency medical consultants who
reviewed the entire record and provided opinions regarding Schwmiz's functional capacity. Admin.
R. 27. Scott Pritchard, D.0., reviewed the record in November 2011 and noted thatthe most recent
medical evidence showed that Schwartz was improving and would be capable of sustaining sedentaty
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exe11ion. Dr. Pritchard said Schwartz would be able to stand and walk for a total of two hours and
sit for a total of about six hours with n01mal breaks during an eight-hour workday. He found no
medical evidence that Schwaiiz had problems with his hands, arms, or shoulders to support
manipulative restrictions and no credible support for a limitation to less than six hours of sitting with
normal breaks. Admin. R. 28, 89-91, 730-732. Maiiin Kehrli, M.D., reviewed the entire record
again in February 2012 and affirmed Dr. PritchaJ'd's findings. Admin. R. 28, 113-114.
An ALJ may discount the opinion of a treating physician in favor of the opinions of other
physicians for specific, legitimate reasons that are based on substantial evidence in the record.
lvfangelles, 881 F.2d at 751. The ALJ found the opinions of Drs. Pritchard and Kehrli more
consistent with the record as a whole than that of Dr. Siqueira. She said the evidence showed that
Schwaiiz had normal strength, normal gait, and that he did not have a respirato1y problem on
exercise testing.
Schwa11z' s repo1ied daily activities included frequently walking through
superstores for over an hour at a time. The ALJ noted the medical record did not contain evidence
of any musculoskeletal complaints related to sitting, and no records suggest that sitting made it more
difficult for Schwai·tz to breath. Dr. Siqueira stated that Schwa11z's ejection fraction was 30% during
the prior year when medical records instead showed that it varied during that period but was
reportedly stable at 35%. Admin. R. 28, 470, 552, 589, 634, 639, 680. In addition, the ALJ pointed
out that Dr. Siqueira relied on Schwaiiz's subjective statements in forming his functional capacity
opinion. For example, Dr. Siqueira relied on Schwaiiz's reported frequent dizziness, but the record
reflects this was an infrequent episodic symptom related to standing up quickly and climbing stairs.
Admin. R. 28. An ALJ may discount a treating physician's opinion that is premised primarily on
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subjective complaints that the ALJ properly finds umeliable. Tonapetyan v. Halter, 242 F.3d 1144,
1149 (9th Cir. 2001); Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989).
The ALJ provided legally sufficient reasons based on inferences reasonably drawn from
substantial evidence to support the weight she attributed to Dr. Siqueira's opinion.
Anthony Garvev, lv!D.
In October 2011, Dr. Garvey evaluated Schwartz for a potential ICD implant. Admin. R.
468-470. In April 2012, Dr. Garvey saw Schwatiz for a follow up and medication management after
the ICD implantation. Schwartz told Dr. Garvey that he would become "extremely fatigued and
short of breath" with activity. Adm in. R. 715. He denied palpitations, chest tightness, or chest pain,
and repo1iedly would go out and walk, usually three or four blocks but on rare occasions up to a
mile. Dr. Garvey reported that Schwatiz had shown slow improvement. Schwartz asked Dr. Garvey
about disability, and Dr. Garvey noted that Schwartz seemed to be "quite disabled from both a
cardiac and pulmonaiy standpoint." Admin. R. 716.
The ALJ assigned no weight to Dr. Garvey's disability opinion. The ALJ conectly pointed
out that a physician's statement that a claimant is disabled cannot be given controlling weight or
special significance, because it is not a medical opinion about specific functional limitations, but an
administrative conclusion reserved to the Commissioner.
20 C.F.R. §§ 404.527(d)(3),
417.927(d)(3); Social Security Ruling 96-5p, 1996 WL 374183. Similar to Dr. Siqueira's disability
statement, there is no indication that Dr. Garvey understood or used the te1m "disability" consistently
with the definition used in adjudicating disability claims under the Social Security Act. Admin. R.
27. As the ALJ observed, Dr. Garvey noted significant improvements in cardiac function with the
ICD implant and medication adjustments. Admin. R. 27, 716. In addition, pulmonary function
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testing showed only mild restrictive impairment that would not suggest that Schwartz was disabled
from a pulmonary standpoint as Dr. Garvey asse1ied. Admin. R. 27, 477. Although Dr. Garvey also
cited obstructive sleep apnea as a factor contributing to Schwartz's alleged disability, the ALJ
properly infened that it was controlled with a CPAP device. Admin. R. 27, 627, 716.
The ALJ' s interpretation of the evidence is supp01ied by inferences reasonably drawn from
substantial evidence in the record. Accordingly, her findings must be upheld, even if the evidence
also could be rationally interpreted differently, in a manner mor favorable to Schwartz. Batson, 359
F.3dat 1193.
To summarize, the ALJ considered all the evidence of functional limitations and reached an
RFC assessment based on the limitations she found supported by the record as a whole. Schwatiz's
challenges to her evaluation of the evidence cannot be sustained and the ALJ is not required to
incorporate additional limitations she found unsuppo1ied by the record. Batson, 359 F3d at 1197-98;
Osenbrockv. Apfel, 240 F3d 1157, 1163-65 (9th Cir2001);1vfagallanesv. Bowen, 881F2d747, 75657 (9th Cir 1989). Accordingly, I find no en·or in the ALJ's RFC assessment.
IV.
Vocational Testimony
At step five of the decision-making process, the Commissioner must show that jobs exist in
the national economy that a person having the functional limitations of the claimant can perfo1m.
Yuckert, 482 US at 141-42; 20 C.F.R.§§ 404.1520(e), (±), 416.920(e), (±). An ALJ can satisfy this
burden by eliciting the testimony of a vocational expert with a hypothetical question that sets f01ih
all the limitations of the claimant. Andrews, 53 F3d at 1043. Here the ALJ elicited testimony based
on her assessment of Schwartz's RFC. The VE testified that such a person could perform the work
related activities required in a range of sedentary unskilled occupations representing significant
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numbers of jobs in the national economy. Schwartz contends the ALJ elicited this testimony from
the VE with hypothetical assumptions that did not accurately reflect all of his functional limitations.
The alleged limitations the ALJ omitted from the hypothetical assumptions, however, were
supp01ied only by evidence the ALJ properly evaluated and discounted.
The hypothetical
assumptions used to elicit the VE's testimony accurately reflected the ALJ's RFC assessment which,
in tum, included all the functional limitations the ALJ found supported by the record. While the
evidence may be susceptible to a different interpretation more favorable to Schwmiz, that is not a
proper basis to overturn the ALJ' s decision. Batson, 359 F .3d at 1193; Andrews, 53 F .3d at 1039-40.
CONCLUSION
For the foregoing reasons, the Commissioner's final decision is AFFIRMED.
DATED this
;) '(:/"day of July, 2016.
Robert E. .Jc ne§,- enior Judge
United Sta'IesDistrict Court
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