Cole v. Commissioner Social Security Administration
Filing
16
OPINION AND ORDER; For the foregoing reasons, the Commissioner's final decision is AFFIRMED and this case is DISMISSED. Signed on 8/2/2016 by Judge Owen M. Panner. (jkm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CAROL LEE COLE,
Plaintiff,
Civ. No. 6:15-cv-01044-PA
OPINION AND ORDER
v.
CAROLYN W. COLVIN,
Acting Commissioner of the Social Security
Administration,
Defendant.
PANNER, Judge:
Plaintiff Carol Cole brings this action for judicial review of the final decision of the
Commissioner of Social Security ("Commissioner") denying her application for Title II
Disability Insurance Benefits under the Social Security Act ("Act"). For the reasons set forth
below, the Commissioner's decision is affirmed and this case is dismissed.
1 - OPINION AND ORDER
PROCEDURAL BACKGROUND
On March 22, 2012, plaintiff applied for Disability Insurance Benefits. Tr. 237-43. Her
application was denied initially and upon reconsideration. Tr. 152-55, 158-60. On April 29,
2014, a hearing was held before an Administrative Law Judge ("ALJ"), wherein plaintiff was
represented by counsel and testified, as did a vocational expert ("VE"). Tr. 29-59. On June 2,
2014, the ALJ issued a decision finding plaintiff not disabled within the meaning of the Act. Tr.
14-23. After the Appeals Council denied her request for review, plaintiff filed a complaint in this
Court. Tr. 1-6.
STATEMENT OF FACTS
Born on March 5, 1959, plaintiff was 50 years old on the alleged onset date of disability
and 55 years old at the time of the hearing. Tr. 45, 237. Plaintiff left school during the tenth
grade but later obtained a GED. Tr. 34, 266. She worked previously as a bartender, caregiver,
and gas station attendant. Tr. 52, 266. Plaintiff alleges disability as of January 11, 2010, due to
depression, anxiety, scoliosis, and degenerative disk disease. Tr. 237, 265.
STANDARD OF REVIEW
The court must affirm the Commissioner's decision if it is based on proper legal
standards and the findings are supported by substantial evidence in the record. Hammock v.
Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations
omitted). The court must weigh "both the evidence that supports and detracts from the
[Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).
2 - OPINION AND ORDER
Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is
rational. Burch v. Barnhart, 400 F .3d 676, 679 (9th Cir. 2005).
The initial burden of proof rests upon the claimant to establish disability. Howard v.
Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must
demonstrate an "inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected ... to last for a continuous
period of not less than 12 months." 42 U.S.C. § 423(d)(l)(A).
The Commissioner has established a five step sequential process for determining whether
a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520. First,
the Commissioner determines whether a claimant is engaged in "substantial gainful activity."
Yuckert, 482 U.S. at 140; 20 C.F.R. § 404.1520(b). Ifso, the claimant is not disabled.
At step two, the Commissioner evaluates whether the claimant has a "medically severe
impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. §
404.1520(c). If the claimant does not have a medically determinable, severe impairment, she is
not disabled.
At step three, the Commissioner determines whether the claimant's impairments, either
singly or in combination, meet or equal "one of a number of listed impairments that the
[Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Yuckert,
482 U.S. at 140-41; 20 C.F.R. § 404.1520(d). If so, the claimant is presumptively disabled; if
not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
At step four, the Commissioner resolves whether the claimant can still perform "past
relevant work." 20 C.F.R. § 404.1520(±). If the claimant can work, she is not disabled; if she
3 - OPINION AND ORDER
cannot perform past relevant work, the burden shifts to the Commissioner. At step five, the
Commissioner must establish that the claimant can perform other work existing in significant
numbers in the national or local economy. Yuckert, 482 U.S. at 141-42; 20 C.F.R. § 404.1520(g).
If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. § 404.1566.
THE ALJ'S FINDINGS
At step one of the five step sequential evaluation process outlined above, the ALJ found
that plaintiff had not engaged in substantial gainful activity "during the period of her alleged
onset date of January 11, 2010 through her date last insured of December 31, 2011." Tr. 16. At
step two, the ALJ determined that plaintiffs scoliosis, lumbar stenosis, and learning disorder
were medically determinable and severe. Id. At step three, the ALJ found plaintiffs
impairments, either singly or in combination, did not meet or equal the requirements of a listed
impairment. Tr. 17.
Because she did not establish presumptive disability at step three, the ALJ continued to
evaluate how plaintiffs impairments affected her ability to work. The ALJ resolved that plaintiff
had the residual functional capacity ("RFC") to perform a limited range of light work as follows:
[She] is limited to lifting and/or carrying up to 20 pounds occasionally [and] up to
10 pounds frequently. She can stand and/or walk for about 6 hours in an 8-hour
day and sit for about 6 hours in an 8-hour day with normal breaks. She must be
allowed to alternate between sitting and standing positions throughout the day
while remaining on task. She can occasionally stoop [and] can understand and
carry out simple instructions.
Tr. 18.
At step four, the ALJ determined plaintiff could not perform any past relevant work. Tr.
21. At step five, the ALJ found there were a significant number of jobs in the national and local
4 - OPINION AND ORDER
economy that plaintiff could perform despite her impairments, such as sticker pricer, quality
control checker, and tray setter. Tr. 22.
DISCUSSION
Plaintiff argues that the ALJ erred by: (1) failing to apply res judicata to the prior ALJ' s
sedentary exertion dete,rmination; (2) finding her not fully credible; (3) rejecting the lay witness
testimony of Dolores Lingo, Karen Killinger, and Mariha Contreras; (4) improperly weighing the
medical opinions of state agency consulting sources Mary Ann Westfall, M.D., and Linda
Jensen, M.D.; (5) neglecting to fully develop the record; and (6) rendering an invalid step five
finding.
I.
Res Judicata
Plaintiff contends that the previous ALJ's finding that she was limited to sedentary level
work during the closed period of March 2004 through November 2006 - which coincides
plaintiffs motor vehicle accident and return to the workforce, respectively - is entitled to
preclusive effect.
Res judicata applies to bar reconsideration of the Commissioner's prior final decisions.
Chavez v. Bowen, 844 F.2d 691, 693-94 (9th Cir. 1988); 42 U.S.C. § 405(h). As such,
adjudicators must adopt an ALJ's previous findings unless "changed circumstances" are present.
Chavez, 844 F.2d at 693-94. Such circumstances can include the existence of new and material
evidence relating to the claimant's functioning, education, or work experience. AR 97-4(9),
available at 1997 WL 740404; see also Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173 (9th
Cir. 2008) (prior ALJ' s findings "cannot be reconsidered by a subsequent [ALJ] absent new
information not presented to the first [ALJ]"). "Medical evaluations conducted after a prior
5 - OPINION AND ORDER
adjudication necessarily constitute new and material evidence." Nursement v. Astrue, 477
Fed.Appx. 453, 454 (9th Cir. 2012) (citation omitted).
The ALJ's prior decision became administratively final and binding when the Appeals
Council denied plaintiffs request for review. Plaintiff filed a new claim for Disability Insurance
Benefits in 2012, asserting essentially the same impairments. Compare Tr. 33-51, with Tr. 64-81.
Nevertheless, there is a significant amount of new and material evidence post-dating the
Commissioner's prior final decision, and these portions of the record evince a greater level of
functioning. Significantly, plaintiff worked for over three years after November 2006 at a
bartending job, which she performed at the heavy exertion level. Tr. 52, 266. She left that
position due to an injury sustained while lifting a 160-pound keg. Tr. 40-41, 359. Yet, as of
January 2010, Thomas Thrall, M.D., opined that plaintiffs on-the-job injury had "[r]esolved"
and cleared her to "return ... to full duty" work. Tr. 349. Further, of the four treatment notes
from the present adjudication period, only two pertain to plaintiffs allegedly disabling
impairments. Compare Tr. 370, 373, with Tr. 366, 377.
The ALJ expressly cited to this, and other, evidence that post-dated the prior
administrative decision in formulating plaintiffs RFC and finding her not disabled. Tr. 19-21. In
fact, while plaintiff concludes "(b]oth ALJs considered the same evidence," she relies on chart
notes that were generated between 2007 and 2011 in support of her present claim. See, e.g., Pl.'s
Opening Br. 9-10, 12-14. Because the current ALJ analyzed new and material evidence, res
judicata is inapplicable.
6 - OPINION AND ORDER
II.
Plaintiff's Testimony
Plaintiff asserts that the ALJ wrongfully discredited her subjective symptom statements
concerning the severity of her impairments. When a claimant has medically documented
impairments that could reasonably be expected to produce some degree of the symptoms
complained of, and the record contains no affirmative evidence of malingering, "the ALJ can
reject the claimant's testimony about the severity of ... symptoms only by offering specific,
clear and convincing reasons for doing so." Smolen v. Chafer, 80 F.3d 1273, 1281 (9th Cir.
1996) (citation omitted). A general assertion that the claimant is not credible is insufficient; the
ALJ must "state which ... testimony is not credible and what evidence suggests the complaints
are not credible." Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered
must be "sufficiently specific to permit the reviewing court to conclude that the ALJ did not
arbitrarily discredit the claimant's testimony." Orteza v. Shala/a, 50 F.3d 748, 750 (9th Cir.
1995) (internal citation omitted). If the "ALJ's credibility finding is supported by substantial
evidence in the record, [the court] may not engage in second-guessing." Thomas v. Barnhart, 278
F.3d 947, 959 (9th Cir. 2002) (citation omitted).
At the hearing, plaintiff testified that she is unable to work due to anxiety and constant
pain, which requires her to frequently alternate between sitting and standing. Tr. 44, 47-49. She
explained that she has trouble sleeping, and does not recline during the day, because it is "too
uncomfortable." Tr. 49-50. Plaintiff testified that her daily activities consist of visiting with her
children, watching television, and performing minor household chores. Tr. 46-47. In the past
year, plaintiff also reported obtaining her GED, participating in vocational rehabilitation, and
completing two terms of community college. Tr. 34, 42.
7 - OPINION AND ORDER
After summarizing her hearing testimony, the ALJ determined that plaintiffs medically
determinable impairments could reasonably be expected to produce some degree of symptoms,
but her statements regarding the extent of these symptoms were not fully credible due to her
history of conservative treatment and stopping work for reasons unrelated to her disability, as
well as the lack of corroborating medical evidence. Tr. 19-21.
Notably, the ALJ determined that plaintiff has "been non-compliant with her treatment on
multiple occasions and despite multiple admonishments." Tr. 20-21. An ALJ may discredit a
claimant due to an "unexplained or inadequately explained failure to seek treatment or to follow
a prescribed course of treatment." Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012)
(citations and internal quotations omitted); SSR 96-7p, available at 1996 WL 374186. Plaintiff
frequently failed to comply with the recommendations of treating physician Gary Goby, M.D.,
despite the fact that he warned against such practices. See, e.g., Tr. 366-68, 373, 377, 386, 389,
430-31, 478. For instance, in January 2010, Dr. Goby noted that plaintiff "has a long history of
noncompliance and no follow-up with recommendations" - specifically citing her refusal to seek
evaluation and treatment for her abnormal menstrual cycles and history of endometrial
hyperplasia - and counseled her that such "poor decisions ... could result in catastrophic
consequences." Tr. 377. In November 2011, Dr. Goby referred plaintiff to psychiatric treatment;
when plaintiff reported she did not have insurance, Dr. Goby "encouraged [her to] seek
counseling through County mental health." Tr. 367-68. However, there is no indication that
8 - OPINION AND ORDER
plaintiff looked into or otherwise sought any mental health services, even though she
subsequently obtained insurance. 1 Tr. 4, 47-48.
The ALJ also found that plaintiffs credibility was impugned because "over the time
period at issue she ... was seen no more than twice related to back complaints." Tr. 20-21. An
ALJ may consider a claimant's failure to report symptoms in making an adverse credibility
finding. Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006). Similarly, an ALJ may consider
the lack of supporting objective medical evidence in "determining the severity of the claimant's
pain." Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). As denoted above, plaintiff
sought treatment only four times during the approximately two-year adjudication period. Tr. 36684. During two of these visits, she did not make any pain complaints or otherwise report any
symptoms related to her allegedly disabling impairments. See Tr. 370, 373 (seeking care for
congestion and a cough). A third visit was not to treatment-driven but rather required to reinitiate care with Dr. Go by after plaintiff had "not been seen" for a significant period of time. Tr.
377. Furthermore, examination findings surrounding the adjudication period were largely
normal. Tr. 349, 367, 371, 374, 381-82; see also Tr. 385-86, 477 (Dr. Goby observing "symptom
magnification" during two examinations).
The foregoing discussion reveals that the ALJ provided clear and convincing reasons,
supported by substantial evidence, for rejecting plaintiffs subjective symptom statements. As a
result, this Court need not discuss all of the reasons provided by the ALJ because at least one
1
Plaintiff does not address this aspect of the ALJ' s decision in her opening brief and neglected to
file a reply brief. As a result, there is no other information before the Court explaining plaintiffs
infrequent medical visits and failure to comply with Dr. Goby's recommendations.
9 - OPINION AND ORDER
legally sufficient reason exists. Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162-63
(9th Cir. 2008). The ALJ' s credibility finding is affirmed.
III.
Lay Testimony
Plaintiff asserts that the ALJ neglected to provide a germane reason to reject the
testimony of her mother (Ms. Lingo), sister (Ms. Killinger), and daughter (Ms. Contreras). Lay
testimony regarding a claimant's symptoms or how an impairment affects the ability to work is
competent evidence that an ALJ must take into account. Molina, 674 F.3d at 1114 (citation
omitted). The ALJ must provide "reasons germane to each witness" in order to reject such
testimony. Id. (citation and internal quotation omitted).
In April 2014, Ms. Lingo, Ms. Killinger, and Ms. Contreras each authored a letter in
support of plaintiffs disability claim. 2 Tr. 339-44. Their statements generally reflect that plaintiff
did not engage in many regular daily activities beyond visiting with family, occasional household
chores, occasional shopping, and short-term babysitting. Tr. 271-78, 339-44. They observed
further that plaintiff seemed anxious and in pain, such that she needed to frequently alternate
between sitting and standing, and rarely left the house. Id.
The ALJ afforded "little weight" to the opinions of Ms. Lingo, Ms. Killinger, and Ms.
Contreras because "they align closely with [plaintiffs] discredited subjective reports and are not
2
In May 2012, Ms. Contreras also completed a Third-Party Adult Function Report; plaintiff does
not rely on or otherwise cite to that evidence on appeal. PL' s Opening Br. 15; Tr. 271-78. In any
event, the Court notes that, at a minimum, the lay testimony was generated five months after the
date last insured and is not offered retrospectively. Tr. 271-78, 339-44; see also Morgan v.
Colvin, 2013 WL 6074119, *10 (D. Or. Nov. 13, 2013) ("while post-date last insured evidence
cannot be rejected solely as remote in time, it can be rejected on the grounds that the evidence
itself is not retrospective") (citations and internal quotations and brackets omitted).
10 - OPINION AND ORDER
consistent with the scant objective evidence." Tr. 21. An ALJ may reject lay testimony on same
basis as the claimant's discredited subjective reports. Valentine v. Comm 'r Soc. Sec. Admin., 574
F.3d 685, 694 (9th Cir. 2009). Likewise, inconsistency with the evidence ofrecord is a germane
reason to reject a third-party's statements. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir.
2005).
An independent review of the record reveals that Ms. Lingo's, Ms. Killinger's, and Ms.
Contreras's testimony concerning plaintiffs functional limitations closely tracks plaintiffs
subjective symptom statements. See Pl.'s Opening Br. 16 ("the lay witness statements reflected
the same impairments described by plaintiff in her function report"). As addressed in section II,
the ALJ provided specific, clear and convincing reasons, supported by substantial evidence, to
find plaintiff less than fully credible. These reasons are equally applicable to the statements
provided by Ms. Lingo, Ms. Killinger, and Ms. Contreras. The ALJ's evaluation of the lay
witness testimony is upheld.
IV.
Medical Opinion Evidence
Plaintiff contends that the ALJ erred by failing to afford controlling weight to the
opinions ofDrs. Westfall and Jensen. There are three types of acceptable medical opinions in
Social Security cases: those from treating, examining, and non-examining doctors. Orn v. Astrue,
495 F.3d 625, 631 (9th Cir. 2007). "Generally, the opinions of examining physicians are afforded
more weight than those of non-examining physicians, and the opinions of examining nontreating physicians are afforded less weight than those of treating physicians." Id. As such, the
ALJ need only refer to "specific evidence in the medical record" in order to reject the opinion of
11 - OPINION AND ORDER
a non-examining doctor. Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998) (citation
omitted).
In 2006, Drs. Westfall and Jensen assessed plaintiff with a sedentary RFC in relation to
her prior disability claim. Tr. 491-98. The ALJ gave "little weight" to the "historical" opinions of
Drs. Westfall and Jensen because plaintiff "went on to work for approximately three and onehalf years at a bowling alley performing light work per the Dictionary of Occupation Titles that
she [actually] performed at the heavy exertional lev[e]l." Tr. 21. The ALJ also noted the more
recent state agency consulting source opinions from Roy Brown, M.D., and Lloyd Wiggins,
M.D., which were rendered in 2012 and 2013 and reflected that plaintiff was cable of a limited
range of light work. Id.
An ALJ can reject a medical opinion that is inconsistent with the evidence of record.
Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Moreover, medical reports that
predate the onset of disability ordinarily are oflimited relevance. Carmickle, 533 F.3d at 1165.
Substantial evidence supports the ALJ's conclusion in the case at bar. Plaintiff worked
for several years after the prior adjudication period at a greater-than-sedentary exertional level;
indeed, plaintiffs own remarks from the 2008 hearing belie the findings of Drs. Westfall and
Jensen. Compare Tr. 76, with Tr. 491; see also Weetman v. Sullivan, 877 F.2d 20, 22-23 (9th Cir.
1989) (affirming the ALJ's rejecting of a treating physician's opinion that that claimant was
"totally" disabled as of 1979 because, amongst other reasons, it "is clearly inconsistent [with the
fact that the claimant] engaged in substantial gainful activity during the 1981 calendar year"). In
addition, new and material medical evidence was generated after plaintiffs previous claim, and
Drs. Brown and Wiggins reviewed that evidence in rendering their opinions. Tr. 129-32, 148-50.
12 - OPINION AND ORDER
Finally, the evidence that plaintiff cites to in support of the assertion that her conditions
"continued to worsen after 2007" is unpersuasive. PL 's Opening Br. 9. Namely, plaintiffs
subjective complaints to Dr. Goby, which predate the alleged onset date, do not undermine the
ALJ's evaluation of the medical evidence. See Tommasetti, 533 F.3d at 1041 (ALJ need not
accept a medical opinion that is based "to a large extent on a claimant's self-reports that have
been properly discounted as incredible") (citation and internal quotations omitted). When read
chronologically, the evidence that plaintiff relies on from Dr. Thrall reflects that her pain and
functioning improved after her 2009 on-the-job injury. Tr. 349-61. The ALJ's evaluation of the
medical opinion evidence is affirmed.
V.
Duty to Develop the Record
Plaintiff maintains that the ALJ should have "request[ed] a consultative examination"
because "Dr. Goby did not cooperate," in that he neglected to furnish a medical source statement.
PL' s Opening Br. 17-18. The claimant bears the burden of proving the existence or extent of an
impairment, such that the ALJ' s limited "duty to develop the record further is triggered only
when there is ambiguous evidence or when the record is inadequate to allow for proper
evaluation of the evidence." Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) (citation
omitted).
Initially, the record clearly demonstrates both the Commissioner's and Dr. Goby's
compliance with the federal regulation that plaintiff relies on support of her argument- i.e., 20
C.F.R. § 404.1512(e). Tr. 335-36, 427-35, 475-89; see also 20 C.F.R. § 404.1512(d) (defining
the Commissioner's duties in regard to soliciting evidence from the claimant's medical sources).
13 - OPINION AND ORDER
In any event, this case has been ongoing for several years and the date last insured lapsed
in 2011. Neither the ALJ nor any medical source found the record to be ambiguous or inadequate
for evaluation. Rather, plaintiff simply neglected to introduce any acceptable medical evidence
regarding her functional abilities. See 20 C.F .R. § 404.1512( c) (claimant bears the burden of
producing medical evidence concerning the severity of the alleged impairments); see also Tr.
476-78 (in response to her request for a disability letter, Dr. Goby examined plaintiff, noting her
"migratory symptoms," before making her "aware that her [allegedly disabling knee] pain was
not associated with any objective findings" and referring her to imaging services), 480
(subsequent normal knee x-ray). Plaintiffs failure to carry her burden of proof, however, does
not equate with an ambiguity or inadequacy in the record, or otherwise indicate that Dr. Goby
was uncooperative.3 The ALJ's duty to more fully develop the record was not triggered.
VI.
Step Five Finding
Plaintiff argues that the ALJ' s step five finding is erroneous because it did not account
for all of the limitations set forth in her testimony, the third-party statements, and the opinions of
Drs. Westfall and Jensen. Plaintiff also contends the step five finding is deficient because "the
ALJ did not make a determination of how frequently [she] would have to alternate sitting or
standing or that the jobs identified by the VE were structured to allow sitting and standing at
will." PL 's Opening Br. 20.
3
The Court finds plaintiffs argument in regard to this issue somewhat curious given that Dr.
Go by counseled plaintiff to obtain a functional capacity evaluation in association with her
disability claim, but she refused. Tr. 430-31.
14 - OPINION AND ORDER
A.
Failure to Account for Limitations
The RFC is the maximum a claimant can do despite her limitations. 20 C.F .R. §
404.1545. In determining the RFC, the ALJ must consider limitations imposed by all of a
claimant's impairments, even those that are not severe, and evaluate "all of the relevant medical
and other evidence," including the claimant's testimony. SSR 96-8p, available at 1996 WL
374184. Only limitations supported by substantial evidence must be incorporated into the RFC
and, by extension, the dispositive hypothetical question posed to the VE. Osenbrock v. Apfel, 240
F.3d 1157, 1163-65 (9th Cir. 2001).
As addressed herein, the ALJ properly discredited plaintiff, the lay testimony, and the
opinions of Drs. Westfall and Jensen, and there is no indication, outside of this evidence, that
plaintiff suffered from functional limitations beyond those outlined in the RFC during the
relevant time period. Thus, plaintiffs argument, which is contingent upon a finding of harmful
error in regard to the aforementioned issues, is without merit. Bayliss, 427 F.3d at 1217-18;
Stubbs-Danielson, 539 F.3d at 1175-76.
B.
Sit/Stand Determination
Where the need to alternate between sitting and standing "cannot be accommodated by
scheduled breaks and a lunch period," the ALJ' s RFC "assessment must be specific as to the
frequency of the individual's need to alternate sitting and standing." SSR 96-9p, available at
1996 WL 374185. Courts within the Ninth Circuit have held that a restriction in the RFC to
"sitting or standing 'at will"' adequately satisfies this ruling. Brown v. Colvin, 2014 WL
6388540, *8 (D. Or. Nov. 13, 2014) (collecting cases).
15 - OPINION AND ORDER
Here, the ALJ' s decision did not explicitly define frequency in relation to plaintiffs
sit/stand option. Tr. 18. Regardless, the dispositive hypothetical question posed to the VE
included a restriction "to alternate between sitting and standing positions as needed." Tr. 53. The
VE clearly understood the ALJ's question to refer to a "sit and stand at will" option. Tr. 54.
Accordingly, because the VE actually considered frequency - i.e., alternating positions "at will"
or "as needed" - in determining that a significant number of representative occupations existed,
any error was harmless. See Stout v. Comm 'r of Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir.
2006) (mistakes that are "nonprejudicial to the claimant or irrelevant to the ALJ's ultimate
disability conclusion" are harmless); see also Ruiz v. Colvin, --- Fed.Appx. ---, 2016 WL 158672,
*2 (9th Cir. 2016) (affirming the ALJ's step five finding where the "inclusion of a sit/stand 'at
will' option ... was considered at the administrative hearing and addressed by the vocational
expert"). The ALJ' s step five finding is upheld.
CONCLUSION
For the foregoing reasons, the Commissioner's final decision is AFFIRMED and this
case is DISMISSED.
IT IS SO ORDERED.
DATED this ~day of August, 2016.
~~d_A_
o\Ven M. Parmer
United States District Judge
16 - OPINION AND ORDER
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