Sajeda Bari v. Michael J. Astrue, No. 2:2008cv05753 - Document 16 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle. IT IS ORDERED that Judgement shall be entered affirming the decision of the Commissioner of the Social Security Administration and dismissing this case with prejudice. (mz)
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Sajeda Bari v. Michael J. Astrue Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 SAJEDA BARI, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the ) Social Security Administration, ) ) Defendant. ) ___________________________________) NO. CV 08-5753-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on September 12, 2008, seeking review 19 of the denial by the Social Security Commissioner (“Commissioner”) of 20 plaintiff’s application for supplemental security income (“SSI”). On 21 November 22 undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 23 636(c). 24 which: 25 and awarding benefits or, alternatively, remanding the case to the 26 Commissioner for a new administrative hearing; and defendant asks that 27 the Commissioner’s decision be affirmed. 28 parties’ Joint Stipulation under submission without oral argument. 12, 2008, the parties consented to proceed before the The parties filed a Joint Stipulation on May 28, 2009, in plaintiff seeks an order reversing the Commissioner’s decision The Court has taken the Dockets.Justia.com SUMMARY OF ADMINISTRATIVE PROCEEDINGS 1 2 3 Plaintiff filed her application for SSI on February 7, 2007, 4 alleging an inability to work since March 1, 2003, due to a migrating 5 intrauterine device (“IUD”). 6 Plaintiff has no past relevant work experience. 7 Commissioner denied plaintiff’s claim for benefits initially (A.R. 45- 8 48) 9 plaintiff, who was represented by counsel, appeared and testified at a and upon (Administrative Record (“A.R.”) 57, 70.) reconsideration (A.R. 36-41). On (A.R. 247.) April 23, The 2008, 10 hearing before Administrative Law Judge Keith Dietterle (“ALJ”). 11 242-60.) 12 19), and the Appeals Council subsequently denied plaintiff’s request for 13 review of the ALJ’s decision (A.R. 3-5). (A.R. On May 21, 2008, the ALJ denied plaintiff’s claims (A.R. 11- 14 15 SUMMARY OF ADMINISTRATIVE DECISION 16 17 The ALJ found that plaintiff has not engaged in substantial gainful 18 activity since the application date of February 1, 2007. 19 The ALJ determined that plaintiff’s history of migrating IUD constitutes 20 a severe impairment. 21 not have an impairment of combination of impairments that meets of 22 medically equals one of the listed impairments in 20 C.F.R. Part 404, 23 Subpart P, Appendix 1. (Id.) (A.R. 13.) However, the ALJ found that plaintiff does (Id.) 24 25 The ALJ further found that plaintiff has the residual functional 26 capacity to perform sedentary work. 27 relevant work. 28 plaintiff’s age, education, work experience, and residual functional (A.R. 18.) (A.R. 13.) Plaintiff has no past The ALJ determined that, considering 2 1 capacity, jobs exist in significant numbers in the national economy that 2 plaintiff can perform. 3 plaintiff has not been under a disability, as defined in the Social 4 Security Act, since February 1, 2007, the date the application was 5 filed. (Id.) Accordingly, the ALJ concluded that (A.R. 19.) 6 7 STANDARD OF REVIEW 8 9 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's 10 decision to determine whether it is free from legal error and supported 11 by substantial evidence in the record as a whole. 12 F.3d 625, 630 (9th Cir. 2007). 13 evidence as a reasonable mind might accept as adequate to support a 14 conclusion.’” 15 a mere scintilla but not necessarily a preponderance.” 16 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). “While inferences from the 17 record can constitute substantial evidence, only those ‘reasonably drawn 18 from the record’ will suffice.” 19 1066 (9th Cir. 2006)(citation omitted). Orn v. Astrue, 495 Substantial evidence is “‘such relevant Id. (citation omitted). The “evidence must be more than Connett v. Widmark v. Barnhart, 454 F.3d 1063, 20 21 Although this Court cannot substitute its discretion for that of 22 the Commissioner, the Court nonetheless must review the record as a 23 whole, “weighing both the evidence that supports and the evidence that 24 detracts from the [Commissioner’s] conclusion.” 25 Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 26 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 27 responsible for determining credibility, resolving conflicts in medical 28 testimony, and for resolving ambiguities.” 3 Desrosiers v. Sec’y of “The ALJ is Andrews v. Shalala, 53 F.3d 1 1035, 1039 (9th Cir. 1995). “Where the evidence as a whole can support 2 either a grant or a denial, [a federal court] may not substitute [its] 3 judgment for the ALJ’s.” 4 1219, 1222 (9th Cir. 2009)(citation and internal punctuation omitted). Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 5 6 The Court will uphold the Commissioner’s decision when the evidence 7 is susceptible to more than one rational interpretation. Tommasetti v. 8 Astrue, 553 F.3d 1035, 1038 (9th Cir. 2008); Burch v. Barnhart, 400 F.3d 9 676, 679 (9th Cir. 2005); see also Batson v. Comm’r of Soc. Sec. Admin., 10 359 F.3d 1190, 1193 (9th Cir. 2004)(“if evidence exists to support more 11 than one rational interpretation, we must defer to the Commissioner’s 12 decision”). 13 the ALJ in his decision “and may not affirm the ALJ on a ground upon 14 which he did not rely.” 15 F.3d at 874. 16 it is based on harmless error, which exists only when it is “clear from 17 the record that an ALJ’s error was ‘inconsequential to the ultimate 18 nondisability determination.’” 19 880, 885 (9th Cir. 2006)(quoting Stout v. Comm’r, 454 F.3d 1050, 1055-56 20 (9th Cir. 2006)); see also Tommasetti, 533 F.3d at 1038; Burch, 400 F.3d 21 at 679. However, the Court may review only the reasons stated by Orn, 495 F.3d at 630; see also Connett, 340 The Court will not reverse the Commissioner’s decision if Robbins v. Soc. Sec. Admin., 466 F.3d 22 DISCUSSION 23 24 25 Plaintiff alleges four issues: the treating 26 considered 27 properly developed the record; (3) whether the ALJ properly considered 28 plaintiff’s testimony; physician’s (1) whether the ALJ properly and (4) opinion; whether 4 the (2) ALJ whether posed a the ALJ complete 1 hypothetical question to the vocational expert. 2 “Joint Stip.” at 2.) (Joint Stipulation These issues are addressed below. 3 4 5 I. The ALJ Properly Determined That Dr. Yen Lai Was Not Plaintiff’s Treating Physician. 6 7 Generally, a treating physician’s opinion is given greater weight, 8 because “he is employed to cure and has a greater opportunity to know 9 and observe the patient as an individual.” Magallanes v. Bowen, 881 10 F.2d 747, 751 (9th Cir. 1989)(citation omitted). 11 treating physician’s opinion is directly proportional to the length of 12 the relationship between the physician and claimant and the frequency of 13 the examinations. 14 opinion may only be given controlling weight when it is well supported 15 by medically acceptable clinical and laboratory diagnosis techniques and 16 it is consistent with other substantial evidence in the record. 17 When the opinion of a treating physician is contradicted, it may be 18 rejected by the ALJ only for “specific, legitimate” reasons, based on 19 substantial evidence in the record. Magallanes, 881 F.2d at 751; Thomas 20 v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002)(“The ALJ need not accept 21 the opinion of any physician, including a treating physician, if that 22 opinion is brief, conclusory, and inadequately supported by clinical 23 findings.”); 24 2004)(upholding the ALJ’s rejection of an opinion that was “conclusory 25 in the form of a check-list,” and lacked supporting clinical findings); 26 Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996)(the ALJ properly 27 rejected doctors’ psychological evaluations, because they were contained 28 in check-off forms and lacked any explanation of their bases). see 20 C.F.R. § 416.927(d)(2). also Batson, 359 5 F.3d at The weight given to a A treating physician’s 1195 & n.3 (9th Id. Cir. Plaintiff contends that the ALJ improperly concluded that Dr. Yen 1 2 Lai was not the treating physician. The Court disagrees. 3 4 The record includes a one-page Authorization to Release Medical 5 Information form, dated December 20, 2007, which was completed by Dr. 6 Lai, plaintiff’s purported treating physician. 7 check-box form, Dr. Lai indicated no diagnosis, but checked the box 8 indicating that the patient was not able to work.1 (A.R. 241.) On this (Id.) 9 10 The ALJ properly rejected Dr. Lai’s check-box form, because it was 11 not supported by any treatment notes or objective evidence and the 12 treatment notes in the record do not support the finding that plaintiff 13 has the “marked” limitations Dr. Lai indicated. 14 that “there is no evidence in the record of Dr. Lai ever treating the 15 claimant. In fact, the claimant’s last documented medical treatment was 16 with Dr. Leslie Po in April 2007, and at that time, Dr. Po noted that 17 the claimant’s anemia had resolved.” 18 Joint Stipulation, plaintiff failed to cite any treatment records 19 corroborating Dr. Lai’s check-box form opinions. 20 attempts to convince the Court that there “clearly” is a treating 21 relationship between her and Dr. Lai, because she scheduled a future 22 appointment with him on January 10, 2008. The ALJ further noted (A.R. 16.) In her portion of the Instead, plaintiff (Joint Stip. at 4.) 23 24 25 26 27 28 1 In this stand alone check-box form, Dr. Lai indicated that: (1) plaintiff had a medically verifiable condition that would limit or prevent her from performing tasks; (2) the onset date of the condition was 2003, the condition was chronic, and it would last until June 30, 2008; (3) plaintiff was actively seeking treatment, and her next appointment date was January 10, 2008; (4) plaintiff was not able to work; (5) plaintiff could not provide care for her children; and (6) plaintiff’s condition requires someone to be in the home to care for her. 6 The Court is not convinced that Dr. Lai is properly viewed as a 1 2 treating physician 3 regulations. 4 someone who provides medical treatment or evaluation and who has or has 5 had “an ongoing treatment relationship with” the claimant, which means 6 seeing the physician “with a frequency consistent with acceptable 7 medical practice for the type of treatment and/or evaluation required 8 for” the claimant’s condition). Other than on a check-box form, Dr. 9 Lai’s the name within the meaning of the Social Security See 20 C.F.R. § 416.902 (defining “treating source” as appears nowhere in record. In fact, the record 10 demonstrates that plaintiff saw Dr. Lai only the once, i.e., on December 11 20, 2007, the date the physician filled out the form. 12 13 The one-page Authorization to Release Medical Information form does 14 not establish that plaintiff was treated by Dr. Lai, and it certainly 15 does not establish an ongoing treatment relationship. 16 the Court gives deference to treating physicians is because they have an 17 opportunity to know and observe their patients. 18 appointment was scheduled in the future does not have bearing on 19 plaintiff’s argument, because it does not show that Dr. Lai had an 20 opportunity 21 Authorization to Release Medical Information form was filled out. to know and observe the patient A primary reason The fact that an at the time the 22 23 Accordingly, the Court finds no error in the ALJ’s decision to 24 reject the Authorization to Release Medical Information form prepared by 25 Dr. Lai. 26 /// 27 /// 28 /// 7 1 II. The ALJ Properly Developed The Record. 2 3 The ALJ in a social security case has an independent duty to fully 4 and fairly develop the record and to assure that the claimant’s 5 interests are considered, even when the claimant is represented, as in 6 this case. 7 2001)(citing Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996)); 8 Crane, 76 F.3d at 255 (citing Brown v. Heckler, 713 F.2d 441, 443 (9th 9 Cir. 1983)). However, “[a]n ALJ’s duty to develop the record further is 10 triggered only when there is ambiguous evidence or when the record is 11 inadequate to allow for proper evaluation of the evidence.” 12 Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001)(citing Tonapetyan, 242 13 F.3d at 1150). Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. Mayes v. 14 15 Plaintiff contends that the ALJ failed to properly develop the 16 record regarding a scheduled future appointment between plaintiff and 17 Dr. Lai. 18 ALJ properly satisfied his duty to fully and fairly develop the record. (Joint Stip. at 7.) Contrary to plaintiff’s contention, the 19 20 In an effort to further develop the record, the ALJ asked 21 plaintiff’s counsel, at the April 23, 2008 hearing, if the medical 22 record was complete. 23 think so.” 24 same 25 Plaintiff indicated that she was not being treated by, or seeing, a 26 doctor. 27 a treating relationship with Dr. Lai” (Joint Stip. at 9), and the ALJ 28 improperly failed to request records of a future scheduled appointment (A.R. 244.) (A.R. 245.) hearing if she (A.R. 250.) was Plaintiff’s counsel responded, “I In addition, the ALJ asked plaintiff at the being treated by, or seeing, a doctor. Plaintiff now claims “it is clear that [she] has 8 1 between them. Plaintiff had ample opportunity to present the evidence 2 of this “appointment” to the ALJ, the Appeals Council, and to this 3 Court, but she has not done so. 4 indicates that the appointment with Dr. Lai that was scheduled for after 5 the Administrative Hearing even took place. In fact, nothing in the record 6 7 Given the circumstances, the ALJ satisfied his duty and was not 8 obligated to develop the record regarding this issue. Plaintiff’s 9 medical record, Dr. Concepcion A. Enriquez’s examination, and Dr. 10 Rocelly Ella-Tamayo’s examination sufficed to present a full and clear 11 picture of plaintiff’s impairment. Additionally, Dr. Enriquez’s and Dr. 12 Ella-Tamayo’s examination reports were substantiated with objective 13 medical evidence on which the ALJ could reasonably base his decision. 14 (A.R. 136-39, 156-62.) 15 symptoms and limitations, because the objective evidence in the record 16 was neither ambiguous nor inadequate. Therefore, the ALJ was not 17 required to further develop the record. See Mayes, 276 F.3d at 459-60. The ALJ properly evaluated the claimant’s 18 19 20 Accordingly, plaintiff’s argument that the ALJ failed to fully and fairly develop the record is rejected. 21 22 23 III. The ALJ’s Finding Regarding The Credibility Of Plaintiff’s Claimed Symptoms And Limitations Is Affirmed. 24 25 The Court gives great weight to the ALJ’s credibility assessment. 26 Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th Cir. 1990); Brawner v. 27 Secretary, 839 F.2d 432, 433 (9th Cir. 1988)(recognizing that the ALJ’s 28 credibility determination is to be given great weight when supported 9 1 specifically). In rendering a credibility evaluation, the ALJ may 2 consider: 3 the claimant’s reputation for lying, prior inconsistent statements 4 concerning the symptoms, and other testimony by the claimant that 5 appears less than candid; (2) unexplained or inadequately explained 6 failure to seek treatment or to follow prescribed course of treatment; 7 and (3) the claimant’s daily activities.” 8 When an ALJ’s decision rests on a negative credibility evaluation, “the 9 ALJ must make findings on the record and must support those findings by “(1) ordinary techniques of credibility evaluation, such as Smolen, 80 F.3d at 1284. 10 pointing to substantial evidence on the record.” Ceguerra v. Sec’y of 11 Health & Human Srvs., 933 F.2d 735, 738 (9th Cir. 1991); Orteza v. 12 Shalala, 50 F.3d 748, 750 (9th Cir. 1995)(the ALJ’s findings must be 13 “sufficiently specific to permit the reviewing court to conclude that 14 the ALJ did not arbitrarily discredit the claimant’s testimony”). 15 Further, when the “ALJ has made specific findings justifying a decision 16 to disbelieve an allegation of excess pain, and those findings are 17 supported by substantial evidence in the record, [the Court’s] role is 18 not to second-guess that decision.” 19 (9th Cir. 1989). Fair v. Bowen, 885 F.2d 597, 604 20 21 Plaintiff contends that the ALJ failed to provide adequate reasons 22 for rejecting 23 Specifically, plaintiff claims that “[t]he ALJ’s findings to support his 24 conclusion 25 substantial evidence, and accordingly, the conclusion that plaintiff has 26 the residual functional capacity to perform her past relevant work also that plaintiff’s plaintiff credibility. was not 27 28 10 credible (Joint are Stip. not at 10.) supported by 1 is not supported by substantial evidence.”2 2 follow, the Court concludes that, in rendering his adverse credibility 3 finding, the ALJ properly considered plaintiff’s testimony and gave the 4 requisite clear and convincing reasons to support his decision not to 5 credit plaintiff’s testimony regarding her symptoms and limitations 6 fully. (Id.) For the reasons that 7 8 9 First, the ALJ indicated that plaintiff’s testimony was inconsistent with the presence of an incapacitating or debilitating 10 medical condition. 11 may 12 inadequately explained, failure to seek treatment or follow a prescribed 13 course of treatment.” 14 Astrue, 237 Fed. Appx. 259, 262 (9th Cir. 2007)(finding that plaintiff’s 15 failure to comply with certain aspects of her treatment plan was a clear 16 and convincing reason to reject her testimony); Flaten v. Sec’y of 17 Health & Human Servs., 44 F.3d 1453, 1464 (9th Cir. 1995)(finding it 18 appropriate for the ALJ to discount plaintiff’s credibility because of 19 a lack of medical care during a period of claimed disability); Contreras 20 v. Astrue, 2010 U.S. Dist. LEXIS 52787, *32 (C.D. Cal. 2010)(finding 21 that “[p]laintiff’s failure to comply with her medical treatment plan 22 [wa]s a clear and convincing reason to discredit her testimony”). While rely to As noted above, one form of evidence on which an ALJ assess claimant credibility is, “an unexplained, or Fair, 885 F.2d at 603; see also Montalvo v. 23 24 25 26 2 27 28 Plaintiff misstated the ALJ’s finding. The ALJ concluded that plaintiff has no past relevant work experience and is capable of performing “other work” that exists in significant numbers in the national economy. (A.R. 18-19.) 11 1 there are acceptable reasons for failure to follow prescribed treatment,3 2 “a claimant’s failure to assert one, or a finding by the ALJ that the 3 proffered reason is not believable, can cast doubt on the sincerity of 4 the claimant’s pain testimony.” Fair, 885 F.2d at 603. 5 6 As the ALJ noted, plaintiff did not follow her doctor’s prescribed 7 course of treatment to mitigate her menstrual bleeding problem. The ALJ 8 correctly 9 contraceptive pills to help control her bleeding, but she declined to found that “[t]he claimant was advised to take oral 10 follow this advice because she was afraid of gaining weight.” 11 17.) 12 reason” for failing to comply with her doctor’s prescribed treatment. 13 See examples of “good reasons” at n.3 supra; see also 20 C.F.R. § 14 416.930(b) 15 treatment without good reason will result in a finding of not disabled). 16 Additionally, as the ALJ noted, it appears that plaintiff’s menstrual (A.R. Plaintiff’s fear of gaining weight hardly constitutes a “good (stating that claimant’s failure to follow prescribed 17 18 3 As set forth in 20 C.F.R. § 416.930(c), the following are examples of good reasons for not following prescribed treatment: 19 20 21 22 (1) The specific medical treatment is contrary established teaching and tenets of your religion. to the (2) The prescribed treatment would be cataract surgery for one eye, when there is an impairment of the other eye resulting in a severe loss of vision and is not subject to improvement through treatment. 23 24 (3) Surgery was previously performed with unsuccessful results and the same surgery is again being recommended for the same impairment. 25 26 (4) The treatment because of its magnitude (e.g. open heart surgery), unusual nature (e.g., organ transplant), or other reason is very risky for you; or 27 28 (5) The treatment involves amputation of an extremity, or a major part of an extremity. 12 1 bleeding problem “is apparently not so severe as to [cause her to] 2 comply with her physician’s recommended course of treatment.” 3 17.) 4 medical treatment has been routine and conservative, and she has gone 5 for long periods of time without any treatment whatsoever.” 6 record contains no evidence of medical treatment after April 2007.4 7 April 23, 2008, plaintiff admitted that she was not being treated by a 8 doctor. 9 medical treatment was not congruent with a disabling condition.5 (A.R. Furthermore, as the ALJ correctly observed, “the claimant’s (A.R. 250.) The ALJ determined that plaintiff’s (Id.) The On inconsistent 10 Second, plaintiff stated that she achieved relief by using Tylenol. 11 12 (A.R. 249.) 13 treatment’ is sufficient to discount a claimant’s testimony regarding 14 [the] severity of an impairment.” Tommasetti, 533 F.3d at 1039 (quoting 15 Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007)). While plaintiff 16 contended that she is unable to take prescription pain medication 17 because it made her dizzy (A.R. 157, 251), the ALJ could reasonably 18 deduce that she achieved adequate relief with Tylenol, because the 19 record does not indicate that she pursued alternative kinds of pain 20 management therapies (A.R. 17.). 21 1114 22 petitioner’s “claim that she experienced pain approaching the highest (9th It is well established that “evidence of ‘conservative Cir. 1999)(rejecting See Meanel v. Apfel, 172 F.3d 1111, subjective pain testimony where 23 24 4 25 Dr. Lai did submit an Authorization to Release Medical Information form on December 20, 2007, but there is no evidence in the record of Dr. Lai ever treating the claimant. (A.R. 16.) 26 5 27 28 The ALJ noted, “[i]n all, [plaintiff]’s medical condition is stable and relatively benign based on objective findings. [Plaintiff]’s physical examinations have been essentially normal and, neurologically, the claimant is intact.” (A.R. 17.) 13 1 level imaginable was inconsistent 2 with the ‘minimal, conservative treatment’ that she received”). 3 4 Third, the ALJ cited the conflict between plaintiff’s subjective 5 complaints and the objective medical evidence in the record as a further 6 reason to undermine plaintiff’s credibility. 7 sole basis for discounting a plaintiff’s subjective testimony, the 8 inconsistency of a plaintiff’s testimony and objective evidence is a 9 legitimate factor to consider, along with other factors, in assessing an While not adequate as a 10 ALJ’s adverse credibility finding. 11 Admin., 169 F.3d 595, 600 (9th Cir. 1999)(“Where, as here, the ALJ has 12 made specific findings justifying a decision to disbelieve an allegation 13 . . . and those findings are supported by substantial evidence in the 14 record, our role is not to second-guess that decision.”)(quoting Fair, 15 885 16 impairment of having a retained IUD could reasonably be expected to 17 produce pain and other symptoms, the record does not support plaintiff’s 18 allegations 19 disabled. F.2d at 603). that such Although pain and See Morgan v. Comm’r of Soc. Sec. plaintiff’s symptoms medically cause her to determinable be totally 20 21 With respect to plaintiff’s allegations that she suffers from lower 22 back and abdominal pain to the extent that she cannot sit for more than 23 an hour or stand for longer than 10 to 15 minutes (Joint Stip. at 10.), 24 the weight of medical evidence proves otherwise. On April 19, 2007, Dr. 25 Enriquez provided an internal medical evidence consultation report in 26 which he concluded that plaintiff “can stand and/or walk with normal 27 breaks for six hours in an eight-hour workday . . . [and] can sit with 28 normal breaks for six hours in an eight hour day.” 14 (A.R. 139.) Dr. 1 Ella-Tamayo’s March 13, 2006 internal medicine evaluation revealed that 2 plaintiff’s ability to sit was unrestricted, and she could stand and 3 walk two hours a day. 4 doctors’ opinions are “well reasoned . . . [and] give great probative 5 weight.” 6 plaintiff can sit for periods longer than an hour and stand for periods 7 longer than 10 to 15 minutes at a time, and notwithstanding plaintiff’s 8 statements that she does not go outside and only walks from her bedroom 9 to the kitchen (A.R. 252), plaintiff testified that she flew for 12 10 hours to Bangladesh with her husband and small child, although she 11 testified that she was medicated and slept throughout the flight (A.R. 12 255-56). (A.R. 160.) (A.R. 14, 16.) As the ALJ correctly noted, these In addition to these medical opinions that 13 14 Lastly, although there is a report from Dr. Po, dated April 18, 15 2007, indicating that plaintiff was not able to work, this conclusory 16 report was not substantiated by any tests or objective findings. 17 240.) 18 temporary and was expected to end on October 18, 2007. 19 as the ALJ noted, “[n]o specific functional limitations were indicated.” 20 (A.R. 16, 240.) 21 Information form submitted by Dr. Lai, on December 20, 2007, also 22 asserted that plaintiff was not able to work. 23 Lai’s check-box form was wholly conclusory and not accompanied by any 24 objective medical evidence or specific functional limitations.6 The ALJ (A.R. Additionally, the report specified that the disability was (Id.) Moreover, The above-discussed Authorization to Release Medical Like Dr. Po’s report, Dr 25 26 6 27 28 Although not mentioned by the ALJ, the Authorization to Release Medical Information is internally inconsistent, given that Dr. Lai states that plaintiff’s condition is chronic, yet also states that her condition would only last until June 30, 2008. 15 1 further noted, “there is no evidence in the record of Dr. Lai ever 2 treating claimant.” (A.R. 16.) 3 Accordingly, 4 5 the ALJ properly concluded that plaintiff’s allegations of disabling symptoms were not credible. 6 7 IV. The ALJ Posed A Complete Hypothetical To The Vocational Expert. 8 9 Hypothetical questions posed to the vocational expert must 10 accurately describe all of the limitations and restrictions of the 11 claimant that are supported by the record. 12 1094, 1101 (9th Cir. 1999). 13 limitations 14 evidence. 15 2001). for which Tackett v. Apfel, 180 F.3d However, the ALJ is not required to include there is insufficient, if any, supporting See Osenbrock v. Apfel, 240 F.3d 1147, 1164-65 (9th Cir. 16 17 Plaintiff argues that the hypothetical posed to the vocational 18 expert was devoid of her “mental impairment and limitations” and thus, 19 cannot be used to assess her work capabilities. 20 Critically, however, plaintiff does not mention any specific mental 21 impairment in the Joint Stipulation. 22 vocational expert testified that plaintiff had no past relevant work 23 experience. 24 question to the vocational expert: (A.R. 257.) (Id.) (Joint Stip. at 16.) At the 2007 hearing, the The ALJ posed the following hypothetical 25 26 We have a younger individual with the equivalent of a high 27 school education. 28 In the first hypothetical, this person is capable of sitting This person is literate, speaks English. 16 1 six hours out of an eight-hour day, standing and walking two 2 hours out of an eight-hour day, can occasionally lift 20 3 pounds, frequently lift 10 pounds, can occasionally climb 4 stairs, 5 occasionally balance, can occasionally stoop, occasionally 6 kneel, occasionally crouch, occasionally crawl. 7 be any jobs in the labor market that this person could do? should never climb ladders or scaffolds, can Would there 8 9 10 (A.R. 258.) In response, the vocational expert opined that, with these limitations, jobs were available for plaintiff in the workforce. (Id.) 11 12 As discussed above, the ALJ’s residual functional capacity 13 assessment included limitations that sufficiently addressed plaintiff’s 14 allegations of pain and physical limitations. 15 is claiming limitations in excess of the ALJ’s RFC finding, the ALJ 16 properly declined to include them in his RFC assessment and in the above 17 hypothetical posed to the vocational expert. 18 427 F.3d 1211, 1217-18 (9th Cir. 2005)(holding that the residual 19 functional capacity determination need only include limitations the ALJ 20 found supported by the evidence). To the extent plaintiff See Bayliss v Barnhart, 21 22 Therefore, this Court finds that the ALJ posited a complete 23 hypothetical, based on a proper residual 24 determination that was supported by substantial evidence in the record, 25 even if that assessment is susceptible to more than one rational 26 interpretation. Batson, 359 F.3d at 1197. 27 28 17 functional capacity 1 CONCLUSION 2 3 For the foregoing reasons, the Court finds that the Commissioner’s 4 decision is supported by substantial evidence and is free from material 5 legal error. Neither reversal of the Commissioner’s decision nor remand 6 is warranted. 7 entered affirming the decision of the Commissioner of the Social 8 Security Administration and dismissing this case with prejudice. Accordingly, IT IS ORDERED that Judgement shall be 9 10 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 11 copies of this Memorandum Opinion and Order and the Judgment on counsel 12 for plaintiff and for defendant. 13 14 LET JUDGMENT BE ENTERED ACCORDINGLY. 15 16 DATED: September 24, 2010 17 18 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 18
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