Lisa Hansen v. Michael J. Astrue, No. 2:2010cv05127 - Document 15 (C.D. Cal. 2011)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal; IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. See order for further details. (jy)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LISA HANSEN, Plaintiff, 12 13 14 15 16 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 10-05127 SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Plaintiff Lisa Hansen ( Plaintiff ) brings this action seeking to 22 overturn the decision of the Commissioner of the Social Security 23 Administration (hereinafter the Commissioner or the Agency ) denying 24 her application for Social Security Income benefits ( SSI ). 25 parties consented to the jurisdiction of the undersigned United States 26 Magistrate Judge, pursuant to 28 U.S.C. § 636(c). 27 stated below, the decision of the Agency is AFFIRMED. 28 The For the reasons 1 II. 2 PROCEDURAL HISTORY 3 4 Plaintiff filed an application for SSI on July 30, 2007, alleging 5 a disability onset of January 30, 2007, due to bilateral knee pain and 6 related 7 (Administrative Record ( AR ) 28, 92-96, 110-118, 122-133, 139-147). 8 The Agency denied Plaintiff s claim on October 12, 2007, as well as at 9 the reconsideration level on January 8, 2008 Plaintiff requested a 10 limitations, diabetes, obesity, hearing before an Administrative Law Judge. and hypertension. (AR 44-55). 11 Plaintiff s hearing was held on July 21, 2009 before Administrative 12 13 Law Judge Mary L. Everstine (the ALJ ). 14 26, 2009, the ALJ issued an unfavorable decision. 15 Plaintiff appealed. 16 request for review in a notice dated February 26, 2010.1 17 343). 18 federal court. 19 a thirty-day extension. 20 civil action on July 13, 2010. 21 // (AR 343-45). (AR 24-42). On August (AR 12-22, 343). The Appeals Council denied her (AR 4-11, Plaintiff requested an extension for filing a civil action in (AR 3). On June 23, 2010, the Appeals Council granted (AR 1-2). Plaintiff commenced the instant 22 23 1 24 25 26 27 28 On February 26, 2010, the Appeals Council received the following additional evidence: (1) statement of Tom Hansen, Plaintiff s husband, dated September 15, 2009; (2) statement of Jill Redd, Plaintiff s close friend, dated September 17, 2009; (3) representative s brief dated September 24, 2009; and (4) records from the Santa Barbara Cottage Hospital, dated May 4, 2009 through August 31, 2009, as well as the records of Dr. Davies, dated October 7, 2009 through November 2009. (AR 7). 2 1 III. 2 FACTUAL BACKGROUND 3 Plaintiff 4 was born on April 21, 1962, has a twelfth grade 5 education, and speaks English. 6 onset of the alleged impairments, Plaintiff worked as a forklift 7 operator and industrial electrician. 8 asserts that she is disabled due to insulin dependent diabetes mellitus, 9 moderate to morbid obesity and bilateral knee arthritis. 10 (AR 28-29, 117, 119, 343). (AR 40-41, 102). Prior to Plaintiff (AR 111, 139- 47, 343-45). 11 12 A. Plaintiff s Medical History 13 14 Plaintiff fractured her right ankle on January 29, 2007 while 15 walking her horse.2 (AR 111, 172).3 16 of the fracture, her [k]nees became further injured and inflamed from 17 the jarring of walking in crutches. 18 Plaintiff underwent a series of injections to her knees. Plaintiff alleges that as a result (AR 111). In May and June 2007, (AR 184-86). 19 20 21 22 23 24 25 26 27 28 2 Eugene Everett, M.D. ( Dr. Everett ) reported: [Plaintiff] slipped on some mud while walking her horse this morning and twisted her right ankle. It is swollen on the lateral aspect and tender. She has an old history, many years ago, of a sprain of her ankle. (AR 172). Dr. Everett further reported that [x]-rays of the right ankle reveal a very minimally displaced fracture on the fibula at the lateral malleolus. (Id.). 3 On February 15, 2007, an x-ray showed that the fracture was in excellent position, and by the end of March 2007, treatment notes indicate that Plaintiff was able to walk about the room on exam. (AR 188, 191). 3 1 In June 2007, Plaintiff was found to be overweight (Class III 2 obesity) and bariatric surgery was scheduled. (AR 173, 181). In 3 September 2007, diabetes Type 2 and hypertension were reported. (AR 4 173-74). On November 8, 2007, Plaintiff underwent gastric bypass 5 surgery. (AR 37, 164). 6 following her successful gastric bypass surgery, she asserted that she 7 still suffered from knee pain. Even though Plaintiff lost ninety pounds (Id.). 8 9 B. Examining Sources 10 1. 11 Martin Bean, P.A. 12 On 13 January 30, 2007, Plaintiff visited Martin Bean, P.A. 14 ( Dr. Bean ), for treatment for her fractured right ankle. 15 Dr. Bean s Progress Note states: Right ankle lateral malleolus fracture 16 with medical clear space changes. 17 Plaintiff s fracture had some swelling and tenderness and that Plaintiff 18 experienced mild discomfort. 19 short-leg cast and kept her nonweight bearing. (Id.). (Id.). (AR 193). Dr. Bean noted that Dr. Bean placed Plaintiff in a (Id.). 20 21 In an February 7, 2007 Progress Note, Dr. Bean reported that 22 Plaintiff presents today for follow-up x-rays of her right ankle 23 lateral malleolus fracture with some medical clear space changes. 24 192). 25 rays of Plaintiff s fracture showed that it was in an excellent position 26 and that she has full neocirculatory function and good cast fit. 27 (AR 191). (AR In a February 15, 2007 Progress Note, Dr. Bean reported that x- 28 4 1 In a March 12, 2007 Progress Note, Dr. Bean reported that 2 Plaintiff s right ankle was nearly fully healed, but [did] still have 3 some mild residual discomfort. (AR 190). In a March 13, 2007 Progress 4 Note, Dr. Bean reported that Plaintiff s right ankle had healed in 5 excellent position. 6 Dr. 7 stiffness. 8 reported that Plaintiff had experienced significant improvement in terms 9 of discomfort. 10 and nontender. 11 comfortably. Bean reported (AR 189). that (AR 188). In a March 29, 2007 Progress Note, [Plaintiff] has residual swelling and In a April 26, 2007 Progress Note, Dr. Bean (AR 187). Dr. Bean reported: The fracture is stable [Plaintiff] is able to bear weight and walk more (Id.). 12 13 On May 24 and 31, 2007, Plaintiff visited Dr. Bean for bilateral 14 knee Hyalgan injections. (AR 185-86). 15 that Plaintiff s right ankle is healing with decreased pain and 16 increased range of motion. 17 ankle is improved dramatically and is no longer a significant issue. 18 (Id.). 19 instilled in [Plaintiff s] bilateral knees without complication or 20 difficulty with post injection teaching given. 21 31, 2007, Dr. Bean reported that Plaintiff had responded well to the 22 first 23 administered on that day, as well. (AR 185). On May 24, 2007, Dr. Bean noted Dr. Bean reported: The right Thereafter, on May 24, 2007, a solution of Hyalgan was injection and seemed to tolerate the (Id.). second On May injection, (AR 186). 24 25 On June 7, 2007, Plaintiff visited Dr. Bean for her third bilateral 26 knee Hyalgan injection for her chondromalacia patella and osteoarthritis 27 of the knees. (AR 184). In a June 7, 2007 Progress Note, Dr. Bean 28 5 1 reported: a solution of Hyalgan was instilled in the bilateral knees 2 without complication or difficulty. (Id.) 3 4 2. Christopher Ryan, M.D. 5 6 On May 21, 2007, Plaintiff s treating physician, Christopher Ryan, 7 M.D. ( Dr. Ryan ), from the Sansum Santa Barbara Medical Clinic, 8 reported in a Progress Note that Plaintiff had severe arthritis of her 9 knees. (AR 171). Even though she had steroid injections, Dr. Ryan 10 noted: [Plaintiff] is still having significant pain and limitations, 11 unable to do her job as an electrician. (Id.). Dr. Ryan also stated 12 that [Plaintiff] is alert, in no acute distress. Remainder of exam is 13 deferred. (Id.). 14 15 On May 14, 2008, Dr. Ryan conducted a Form: Diabetes Mellitus 16 Residual Functional Capacity Questionnaire. 17 form, Dr. Ryan reported that he had seen Plaintiff since June 2003, and 18 that her diagnoses was IDDM, [without] morbid obesity, [and] severe 19 arthritis [to both] knees. 20 would likely be absent from work for more than four days per month. (AR 21 221). 22 Plaintiff 23 consistent with her previous meniscal tear. 24 with Dr. Gainor. 25 suffered from arthritis of multiple joints and morbid obesity in 26 contrast to his finding that she was not morbidly obese. (AR 218). (AR 218-221). In that Dr. Ryan noted that Plaintiff In an accompanying Progress Note, Dr. Ryan reported that occasionally has (AR 332). some sharp pain on the left [knee] She is considering a scope Dr. Ryan also reported that Plaintiff 27 28 6 (AR 333). 1 On March 3, 2009, Dr. Ryan reported that the severity of 2 Plaintiff s impairments met the requirements of Section 1.02 of the 3 Listing of Impairments (the Listing ), set forth at 20 C.F.R. Part 404, 4 Subpart P, Appendix 1, due to severe bilateral knee chondromalacia. (AR 5 300-01). 6 joints, as well as chronic pain. 7 that Plaintiff s knee problems preclude her from ambulating well. 8 (Id.). Dr. Ryan stated that Plaintiff has a major dysfunction of (AR 300). Further, Dr. Ryan noted 9 10 3. Daniel Berger, M.D. 11 12 On February 19, 2007, May 21, 2007, June 12, 2007, and July 13 31, 2007, Plaintiff visited Daniel Berger, M.D. ( Dr. Berger ), for 14 treatment for her Type 2 diabetes mellitus. 15 February 19, 2007, Dr. Berger reported that Plaintiff had recently 16 sustained a right ankle fracture approximately three weeks ago after 17 falling. 18 Plaintiff was interested in gastric bypass surgery. 19 12, 2007, Dr. Berger and Plaintiff discussed the drug Avandia. 20 182). 21 had improved. (AR 179). (AR 175-80, 181-83). On On May 21, 2007, Dr. Berger reported that (AR 177). On June (AR On July 31, 2007, Dr. Berger reported that Plaintiff s condition (AR 175). 22 23 On January 6, 2009, March 10, 2009 and April 28, 2009, Plaintiff 24 visited Dr. Berger. (AR 302, 312, 316). On January 6, 2009, Dr. Berger 25 noted that Plaintiff had undergone the gastric bypass surgery, lost 26 ninety pounds and was overall doing well. (AR 316). 27 Plaintiff s blood sugar control remained poor. 28 7 (Id.). However, On January 15, 1 2009, Dr. Berger again observed that Plaintiff lost ninety pounds 2 following the gastric bypass surgery, and that her weight was now 3 stable. 4 the gastric bypass surgery, Plaintiff s diabetes was not resolved, and 5 he recommended that she transition to insulin pump therapy. (AR 314). On March 10, 2009, Dr. Berger reported that despite (AR 312). 6 7 4. John W. Gainor, M.D. 8 9 On June 19, 2007, before her gastric bypass surgery, Plaintiff 10 visited John W. Gainor, M.D. ( Dr. Gainor ). (AR 181, 290). Dr. Gainor 11 diagnosed Plaintiff with chrondromalacia knee, bilateral. (Id.). 12 5. 13 Keith Quint, M.D. 14 On October 3, 2007, State agency medical consultant, Keith Quint, 15 16 M.D. ( Dr. Quint ) examined Plaintiff. 17 reported that Plaintiff was limited to lifting and carrying ten pounds 18 frequently and twenty pounds occasionally. 19 reported that Plaintiff would be limited to occasionally kneeling, 20 crouching, crawling, and climbing ramps/stairs, and was precluded from 21 climbing ladders/ropes/scaffolding. 22 Plaintiff should avoid concentrated exposure to heights and uneven 23 terrain. 24 // 25 // 26 // 27 // (AR 197). 28 8 (AR 194-198). (AR 195). (AR 196). Dr. Quint Dr. Quint also Dr. Quint found that 1 6. Chantal Gariepy, R.D., C.D.E. 2 3 On June 15, 2007, Chantal Gariepy, R.D., C.D.E. ( Gariepy ) 4 evaluated Plaintiff for gastric bypass weight loss surgery. (AR 257). 5 Gariepy noted that Plaintiff rides her horse [three to six] times per 6 week. (AR 258). 7 8 7. Gerri French, M.S., R.D., C.D.E. 9 On October 7, 2008, Gerri French, M.S., R.D., C.D.E. ( French ) 10 11 evaluated Plaintiff. (AR 278). French reported that Plaintiff s 12 activities were [l]imited because she needs knee replacements. 13 does ride horses a bit and tries to do the best she can, but she does 14 have some limitations. Surgery is pending. She (Id.). 15 16 C. Consultative Evaluation 17 18 1. Juliane Tran, M.D. 19 20 On December 16, 2007, consultative examiner Juliane Tran, M.D. 21 ( Dr. Tran ) 22 Plaintiff. conducted (AR 205). a comprehensive orthopedic evaluation Dr. Tran found: 23 24 [Plaintiff] is mildly to moderate[ly] obese. 25 to the exam room with slow gait. 26 to be comfortable with sitting. 27 off the exam table but slowly. 28 9 She ambulates She used a cane. She seems She is able to get on and General mobility is slow and of 1 guarded. 2 the knee exam. It is uncertain if she has painful behavior during 3 4 (AR 206). Dr. Tran found that Plaintiff probably has degenerative 5 joint disease, but that there was [n]o evidence of knee instability. 6 (AR 208). Dr. Tran further reported: 7 8 [Plaintiff] has restriction of knee range of motion. It is 9 unclear whether she has low pain threshold or not. It is 10 unclear if she has maximum effort during the examination. 11 She does have restriction with knee range of motion. 12 gait is mildly antalgic. Her She has knee joint pain. 13 14 (Id.). 15 16 Based on this examination, Dr. Tran concluded that Plaintiff would 17 be restricted with standing, walking no more than six hours a day or 18 activities involving frequent bending, stooping, kneeling or crouching. 19 (AR 208). 20 with frequent negotiating steps, stairs or uneven terrain or activities 21 involving frequent climbing or balancing activities but not occasional. 22 (Id.). 23 with lifting no more than [twenty-five] pounds occasionally or [ten] 24 pounds frequently. 25 // 26 // 27 // Dr. Tran also explained that Plaintiff may be restricted Finally, Dr. Tran reported that Plaintiff would be restricted (Id.). 28 10 1 D. Vocational Expert s Testimony 2 3 Elizabeth Cerezo-Donnelly, an impartial vocational expert ( VE ), 4 testified on July 21, 2009. (AR 15, 40-42). 5 The ALJ provided the following hypothetical question to the VE: 6 7 Assume a hypothetical individual who s a younger individual 8 with a high school education, the same past work experience, 9 who retains the residual functional capacity for sedentary 10 exertional work as defined in the Dictionary of Occupational 11 Titles and Social Security regulations, but should avoid any 12 working 13 excuse me, or operation of hazardous machinery and when 14 walking or standing requires a cane for balance. 15 precludes the past work. at heights or unprotected, unprotected heights, That 16 17 (AR 41). The ALJ then posed the following question to the VE: Are 18 there jobs that could accommodate those limitations that are sedentary 19 with no heights, hazardous machinery and a cane when standing or 20 walking? (AR 41). The VE responded: 21 22 Yes. 23 industry. 24 713.687-018. 25 positions and in the United States there are approximately 26 328,000. 27 the beverage industry, such as at a hotel or restaurant. For example, a final assembler in the optical goods It s an unskilled, sedentary job. The DOT code is In California there are approximately 30,000 Another example is a telephone order clerk, with 28 11 1 It s unskilled and sedentary. 2 In California there are 19,450 jobs, in the U.S., there are 3 approximately 232,000. The DOT code is 209.567-014. 4 5 (AR 6 absenteeism more than one day per month. 7 concluded that these job would be ruled out [i]f a person was unable 8 to sit for prolonged periods of time without raising their legs to waist 9 level. 41). The VE confirmed that the jobs would not accommodate (AR 41-42). The VE also (AR 42). 10 11 E. Lay Witness Testimony 12 13 1. Tom Hansen 14 15 On September 15, 2009, Tom Hansen ( Hansen ), Plaintiff s husband, 16 submitted a letter. (AR 341). 17 [his] letter is to dispute some of the conclusions found in the decision 18 made by the [ALJ]. 19 issue on whether or not my wife still rides horses and her credibility 20 surrounding that issue. 21 able to enjoy her hobbies riding horses on a regular basis, with some 22 discomfort, until around January 2006. 23 starting in January 2006, Plaintiff s riding started to tail off 24 because of severe pain in her knees. 25 that [i]n January 2007, [Plaintiff] stopped riding all together as her 26 knees got to the point that she was having problems functioning in her 27 normal daily activities let alone horseback riding. (Id.). Hansen explained that [t]he purpose of Hansen stated: It seems that there is an (Id.). Hansen explained that Plaintiff was 28 12 (Id.). (Id.). Hansen claimed that Hansen further alleged (Id.). 1 2. Jill Redd 2 3 On September 17, 2009, Plaintiff s close friend, Jill Redd 4 ( Redd ), whom Plaintiff had known for about fifteen years, submitted 5 a third-party function report. 6 Plaintiff 7 disability retirement from work because of her knees. 8 further asserted that she owns horses and boards her horses at the same 9 facility that Plaintiff boards her horses. used to work (AR 342). together prior Redd stated that she and to [Plaintiff] (Id.). getting (Id.). a Redd To that end, Redd 10 explained that : [i]n early January 2007 [she] started taking care of 11 [Plaintiff s] horses on a regular basis as [Plaintiff] could no longer 12 do it herself. 13 knowledge, Plaintiff has not ridden horses since late 2006, and that 14 along with Hansen, Redd has taken responsibility for Plaintiff s horses 15 for the last two-and-a-half years. (Id.). Finally, Redd asserted that to the best of her (Id.). 16 17 F. Plaintiff s Testimony 18 Plaintiff appeared in person at the 2009 hearing. 19 (AR 26-40). 20 Plaintiff testified that she has severe degenerative joint disease in 21 her knees. 22 pain. 23 every [four] hours, that was [sixteen] a day just to function at work, 24 just so I could go to work. 25 her doctor found out about this, he said that she should not take that 26 much and when I did that, that s when I realized just how bad my knees 27 were hurting, just how bad they were. (AR 29-30). (AR 31). Plaintiff testified that she takes Tylonal for Plaintiff further testified: I was taking four pills (AR 36). 28 13 Plaintiff testified that when And that s when Dr. Daner 1 recommended significant weight loss to try to keep me working. (AR 36- 2 37). 3 4 Plaintiff testified that she underwent the gastric bypass surgery 5 in November 2007 to improve her knees and diabetes. (AR 37). Plaintiff 6 testified that the gastric bypass surgery was a success, but only 7 insofar as she lost originally ninety pounds. 8 Plaintiff testified that following the surgery, her diabetes remained 9 problematic. (AR 37-38). Plaintiff testified that she must monitor her 10 blood sugar nearly every two hours to make sure that she does not 11 experience a low blood sugar episode. 12 testified that her glucose spirals up in the evenings mostly. 13 31). 14 a day and at night, at least every other night. 15 Plaintiff testified: (AR 37, 39). (AR 29-30, 37). Indeed, Plaintiff (AR Plaintiff testified I crash at least once a day, sometimes twice (Id.). To that end, 16 17 I start to become out of it. I can t concentrate. If 18 they re talking to me, I stop talking. 19 trouble concentrating on what s going on around me. 20 even concentrate on what someone s saying to me and it will 21 usually be the other people around me that say hey Lisa, 22 what s your blood sugar? 23 will figure it out before I do because I, I m, I m just not 24 connecting the dots anywhere. I have extreme I can t I think you re getting low. They 25 26 (AR 40). 27 a little bit with the high spikes, but I m still getting quite a bit low Plaintiff testified that she is on a pump, which has helped 28 14 1 blood sugar, so we re, we re trying to get rid of the low blood sugars 2 as a[n] issue first. 3 still continue to give out. 4 improve my knee situation at all . . . there s still been considerable 5 damage, even over the last two years, in my knees. (AR 32). Plaintiff also testified: My knees [The gastric bypass surgery] did not (AR 30). 6 7 When asked why she has not gone forward with knee replacement 8 surgery, Plaintiff testified that she had been trying to get [her] 9 doctor to and up until [her] last appointment with him, he was refusing 10 to do that because of [Plaintiff s] age and saying [she] was too young 11 and he wanted until [Plaintiff] was in [her fifties]. 12 Plaintiff testified: (AR 35). 13 14 [At] my last appointment with him, three or four weeks go, 15 [my doctor] finally agreed to do knee replacements, [he] said 16 we ve tried everything that there is to try. 17 quality of life. 18 because that is really my goal, and have a quality of life, 19 so he s finally agreed to do knee replacements. You have no [He] agreed we need to get you back to work 20 21 (Id.). 22 23 24 Plaintiff testified that she has difficulty standing and sitting for long periods of time. (AR 32). Plaintiff testified: 25 26 I cannot sit in a knee bent situation for more than [twenty 27 to thirty] minutes . . . without having severe knee pain and 28 15 1 . . . if I ve had a low glucose episode, even sitting up and 2 my eyes open after that for an hour or two is very difficult. 3 Usually I have to take a nap and lay down and close my eyes. 4 5 (Id.). Plaintiff testified that she uses a cane to walk and stand. 6 (Id.). Plaintiff testified that she can lift maybe [five to ten] 7 pounds and very briefly and that s really about it. I just have so much 8 extreme sharp pains in my knees. 9 the pain associated with sitting is relieved if she extends knees (Id.). (AR 33). Plaintiff testified that However, Plaintiff testified that this relief is 10 straight out. 11 only partial: I always have a numbing, a numb pain, but it will take 12 the extreme, usually will take the extreme pain away, even if I m 13 sitting on the couch with my legs out flat. (Id.). 14 15 Plaintiff testified that she cannot do many household chores and 16 that her husband does most of them: My husband takes care of dinner and 17 cleaning the kitchen. (AR 33, 146). Plaintiff also testified that she 18 cannot take care of her own personal needs, or shower or shampoo her 19 hair. (AR 33-34, 146). 20 21 Plaintiff testified that after her glucose falls, she experiences 22 extreme fatigue for the rest of the day, typically, but the most 23 extreme part is two hours, usually two hours after it takes me somewhat 24 to recover. (AR 32). 25 26 27 Plaintiff also testified about her horseback riding. Plaintiff testified: 28 16 (AR 34). 1 I haven t . . . ridden horses in . . . a . . . good year-and- 2 a-half or so. 3 able to get back on them, but . . . I have a friend that 4 rides them right now for me . . . but . . . I m not sure if 5 I ll be able . . . to keep them. I still own them. I m hoping some day to be 6 7 (Id.). 8 as of October 2008, Plaintiff testified: He might have misunderstood. 9 I do go out there occasionally when my, my good friend comes to pick me 10 up and we go out there, but I might turn them out in the arena or 11 something, but as far as riding, I think he might have misunderstood 12 that. Regarding the report that indicated that Plaintiff rode horses (Id.). 13 14 IV. 15 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 16 17 To qualify for disability benefits, a claimant must demonstrate a 18 medically determinable physical or mental impairment that prevents her 19 from engaging in substantial gainful activity4 and that is expected to 20 result in death or to last for a continuous period of at least twelve 21 months. 22 (citing 42 U.S.C. § 423(d)(1)(A)). 23 claimant incapable of performing the work she previously performed and 24 incapable of performing any other substantial gainful employment that See Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) The impairment must render the 25 26 4 27 28 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay or profit. See 20 C.F.R. § 416.910. 17 1 exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 2 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 3 4 To determine if a claimant is entitled to benefits, an ALJ conducts 5 a five-step inquiry. See 20 C.F.R. § 416.920 ( This section explains 6 the five-step sequential evaluation process we use to decide whether you 7 are disabled, as defined in § 416.905. ). The steps are: 8 9 (1) Is the claimant presently engaged in substantial gainful 10 activity? 11 If not, proceed to step two. 12 (2) Is the If so, the claimant is found not disabled. claimant s impairment 13 claimant is found not disabled. 14 severe? If not, the three. 15 (3) Does the claimant s If so, proceed to step impairment meet or equal the 16 requirements of any impairment listed at 20 C.F.R. Part 17 404, Subpart P, Appendix 1? 18 found disabled. 19 (4) If so, the claimant is If not, proceed to step four. Is the claimant capable of performing h[er] past work? 20 If so, the claimant is found not disabled. 21 proceed to step five. 22 (5) Is the claimant able to do any other work? 23 claimant is found disabled. 24 If not, If not, the found not disabled. If so, the claimant is 25 26 Tackett, 180 F.3d at 1098-99; see Bustamante v. Massanari, 262 F.3d 949, 27 953-54 (9th Cir. 2001); see 20 C.F.R. § 416.920(b)-(g)(1). 28 18 1 The claimant has the burden of proof at steps one through four and 2 the Commissioner has the burden of proof at step five. 3 262 4 (9th Cir. 1995) (holding that [t]he claimant bears the burden of 5 proving entitlement to disability benefits. ); see Johnson v. Shalala, 6 60 F.3d 1428, 1432 (9th Cir. 1995) ( In determining the ultimate issue 7 of disability, claimant bears the burden of proving she is disabled. ). 8 If, at step four, the claimant meets her burden of establishing an 9 inability to perform the past work, the Commissioner must show that the 10 claimant can perform some other work that exists in significant 11 numbers in the national economy, taking into account the claimant s 12 RFC, age, education and work experience. See Tackett, 180 F.3d at 1100; 13 20 C.F.R. § 416.920(g)(1). 14 of a vocational expert or by reference to the Medical-Vocational 15 Guidelines appearing in 20 C.F.R. Part 404, Subpart P, Appendix 2 16 (commonly known as the Grids ). 17 1162 (9th Cir. 2001). 18 related) and nonexertional limitations, the Grids are inapplicable and 19 the ALJ must take the testimony of a vocational expert. Moore v. Apfel, 20 216 F.3d 864, 869 (9th Cir. 2000). F.3d at 953-54; see See Bustamante, Andrews v. Shalala, 53 F.3d 1035, 1040 The Commissioner may do so by the testimony Osenbrock v. Apfel, 240 F.3d 1157, When a claimant has both exertional (strength- 21 22 V. 23 THE ALJ S DECISION 24 25 Here, the ALJ employed the five-step sequential evaluation process 26 and concluded that Plaintiff was not disabled under the Social Security 27 Act. (AR 17-22). At step one, the ALJ found that Plaintiff has not 28 19 1 engaged in substantial gainful activity since January 30, 2007, the 2 alleged onset date. 3 Plaintiff alleged the following severe impairments: degenerative joint 4 disease of the knees, status post arthroscopic repair; history of morbid 5 obesity status post gastric bypass . . . and insulin dependent diabetes 6 mellitus. (AR 17). At step two, the ALJ found that (Id.). 7 8 9 At step three, the ALJ found that Plaintiff s severe impairments at step two did not meet or medically equal a listed impairment. 10 17). 11 (AR At step four, the ALJ found that Plaintiff had the following residual functional capacity: 12 13 [Plaintiff] has the residual functional capacity to perform 14 sedentary work as defined in 20 CFR 404.1567(a) except for 15 the need to use a cane when walking/standing; occasional 16 walking on uneven terrain; and preclusion from working in 17 unprotected heights or operation of hazardous machinery. 18 19 (Id.). 20 21 Lastly, at step five, the ALJ found that [c]onsidering 22 [Plaintiff s] age, education, work experience, and residual functional 23 capacity, there are jobs that exist in significant numbers in the 24 national economy that [Plaintiff] can perform. (AR 21). Specifically, 25 in relying upon the testimony of the VE, the ALJ concluded that 26 [Plaintiff] would be able to perform the requirements of representative 27 occupations such as final assembler . . . and telephone order clerk. 28 20 1 (AR 21). 2 because Plaintiff could perform other work with jobs existing in 3 significant numbers in the national economy. Therefore, the ALJ concluded that Plaintiff was not disabled (AR 20-21). 4 5 VI. 6 STANDARD OF REVIEW 7 8 9 Under 42 U.S.C. § 405(g), a Commissioner s denial of benefits. district court may review the The findings of the Secretary as 10 to any fact, if supported by substantial evidence, shall be conclusive. 11 See Andrews, 53 F.3d at 1039. 12 to deny benefits will be disturbed only if it is not supported by 13 substantial evidence or is based on legal error. 14 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (holding that [t]his 15 court may set aside the Commissioner s denial of benefits when the ALJ s 16 findings are based on legal error or are not supported by substantial 17 evidence in the record as a whole. ); see also, Smolen v. Chater, 80 18 F.3d 1273, 1279 (9th Cir. 1996). Therefore, [t]he Secretary s decision Id.; see Aukland v. 19 20 Substantial evidence is more than a scintilla, but less than a 21 preponderance. 22 which a reasonable person might accept as adequate to support a 23 conclusion. (Id.). To determine whether substantial evidence supports 24 a finding, the court must consider the record as a whole, weighing 25 both 26 [Commissioner s] conclusion. Aukland, 257 F.3d at 1035 (quoting Penny 27 v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)); see also, Andrews, 53 evidence Reddick, 157 F.3d at 720. that supports and evidence 28 21 It is relevant evidence that detracts from the 1 F.3d at 1039. 2 or reversing the Secretary s conclusion, the court may not substitute 3 its judgment for that of the Secretary. 4 21. If the evidence can reasonably support either affirming See Reddick, 157 F.3d at 720- Indeed: 5 6 To determine whether substantial evidence supports the ALJ s 7 decision, [the Court of Appeals] review[s] the administrative 8 record as a whole, weighing both the evidence that supports 9 and that which detracts from the ALJ s conclusion. responsible 10 is 11 conflicts 12 ambiguities. 13 decision where the evidence is susceptible to more than one 14 rational interpretation. in for determining medical credibility, The ALJ testimony, and for resolving resolving [The Court of Appeals] must uphold the ALJ s 15 16 Andrews, 53 F.3d at 1039-40. 17 18 VII. 19 DISCUSSION 20 21 Plaintiff claims that the Agency s decision should be reversed 22 because the ALJ: (1) improperly rejected the findings of Plaintiff s 23 treating physician, Dr. Ryan; (2) failed to perform a proper step three 24 analysis; 25 capacity and the resulting hypothetical questions based thereon were 26 inadequate; (4) improperly discredited Plaintiff s testimony and because 27 (5) the Appeals Council improperly disregarded third-party written (3) improperly assessed 28 22 Plaintiff s residual functional 1 statements. 2 2). 3 reasons discussed below, the Court finds that the ALJ s decision should 4 be AFFIRMED. (Memorandum in Support of Complaint ( Compl. Mem. ) at 1- The Court disagrees with each of these contentions. For the 5 6 7 A. The ALJ Properly Considered The Opinions Of Plaintiff s Treating Physician, Dr. Ryan 8 9 Plaintiff claims that the ALJ failed to consider the opinions of 10 her treating physician, Dr. Ryan. (See Compl. Mem. at 2-7). Plaintiff 11 contends that the ALJ s reason for rejecting Dr. Ryan s opinions is 12 erroneous and does not constitute a specific and legitimate reason to 13 reject them as required by Orn, Murray, and Lester. 14 claim lacks merit as the ALJ considered Dr. Ryan s opinion and provided 15 specific and legitimate reasons for rejecting his opinion. (Id. at 7). This 16 17 Contrary to Plaintiff s assertion, the ALJ sufficiently addressed 18 Dr. Ryan s findings. (AR 19-20). The ALJ noted that on May 14, 2008, 19 Dr. Ryan reported insulin dependent diabetes mellitus, morbid obesity 20 status post bypass, and severe bilateral knee arthritis, in the 21 Diabetes Mellitus Residual Functional Capacity Questionnaire. (AR 19, 22 See AR 218-221). The ALJ stated: 23 24 Dr. Ryan reported that [Plaintiff] could sit and stand/walk 25 for less than [two] hours each, rarely lift [ten] pounds, and 26 was precluded from twisting, stooping, crouching, climbing, 27 and working in temperature extremes, wetness or humidity. 28 23 1 Furthermore, Dr. Ryan reported that [Plaintiff] suffered 2 symptoms that would constantly interfere with her ability to 3 maintain attention and concentration. 4 5 (AR 19). 6 7 On March 3, 2009, Dr. Ryan concluded that Plaintiff s bilateral 8 knee arthritis would meet or equal Section 1.02 under the Listing, as 9 Plaintiff s knee impairments qualify as Major dysfunction of a 10 joint(s), and so Plaintiff cannot ambulate effectively. (Compl. 11 Mem. 3-4, AR 300-01). 12 2009, Dr. Ryan reported that the severity of [Plaintiff s] impairments 13 met the requirements of Section 1.02 under the Listing, due to several 14 bilateral knee chondromalacia. 15 Plaintiff s assertion that the ALJ failed to consider Dr. Ryan s 16 opinions is incorrect. As to this finding, the ALJ noted: In March (AR 19). Thus, as an initial matter, 17 18 1. Dr. Ryan s Findings Were Not Corroborated By Objective Medical Evidence 19 20 21 20 C.F.R. § 404.1527(d)(2) explains that an ALJ will generally 22 place more weight on a treating physician s opinions if such opinions 23 are well-supported by objective evidence and are not inconsistent with 24 other 25 26 27 28 substantial evidence in the 5 record.5 However, in Connett Generally, we give more weight to opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or 24 1 v. Barnhart, the Ninth Circuit held: 2 3 [T]he ALJ can reject the opinion of a treating physician in 4 favor 5 physician if the ALJ makes findings setting forth specific, 6 legitimate reasons for doing so that are based on substantial 7 evidence 8 contradicts [the other doctors ] conclusions, the ALJ need 9 only have rejected [the treating physician s] conclusions for 10 specific and legitimate reasons supported by substantial 11 evidence in the record. of the in conflicting the record. opinion . . . of another Because this examining evidence 12 13 Connett v. Barnhart, 340 F.3d 871, 874-75 (9th Cir. 2003) (internal 14 citations and quotations omitted). 15 took [the claimant s] subjective report of symptoms and did a limited 16 physical examination. 17 abdomen and pain in her lower back and hip, [the treating physician] 18 wrote her a disability certificate certifying that she was unable to 19 work. (Id. at 875). In Connett, the treating physician When [the claimant] indicated tenderness in her Therefore, because the treating physician relied 20 21 22 23 24 25 26 27 28 from reports of individual examinations, such as consultative examinations or brief hospitalizations. If we find that a treating source s opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight. When we do not give the treating source s opinion controlling weight, we apply the factors listed in paragraphs (d)(2)(i) and (d)(2)(ii) of this section, as well as the factors in paragraphs (d)(3) through (d)(6) of this section in determining the weight to give the opinion. We will always give good reasons in our notice of determination or decision for the weight we give your treating source s opinion. 20 C.F.R. § 404.1527(d)(2). 25 1 on the claimant s self-reported limitations, which were not supported 2 by his own treatment notes, the Ninth Circuit held that the ALJ properly 3 discredited 4 conflicting testimony of other examining physicians. the treating physician s opinions in favor of the (Id.). 5 6 Similarly, in Andrews, the Ninth Circuit held: 7 8 [T]he [S]ecretary was entitled to adopt the opinion of the 9 nonexamining medical advisor, who was present at the hearing 10 and testified, and to discount the opinion of the examining 11 physician, because the ALJ gave specific and legitimate 12 reasons for doing so that were based on substantial evidence 13 in the record in addition to the nonexamining psychologist s 14 opinion. . . . Where the opinion of the claimant s treating 15 physician 16 nontreating source may itself be substantial evidence; it is 17 then solely the province of the ALJ to resolve the conflict. is contradicted . . . the opinion of the 18 19 Andrews, 53 F.3d at 1037-1041; see also Johnson, 60 F.3d at 1432 ( The 20 ALJ may reject the opinion [of the treating physician] only if she 21 provides clear and convincing reasons that are supported by the record 22 as a whole. ). 23 24 Here, after carefully considering the evidence, including the 25 medical opinions of Drs. Tran and Quint, the ALJ concluded: The medical 26 opinion of Dr. Ryan is given little weight because Dr. Ryan s treatment 27 records do not document signs, symptoms, and/or laboratory findings or 28 26 1 objective observations supportive of the limitations he assesses. (AR 2 19). The ALJ explained: 3 4 The extreme limitations found by the treating physician 5 [Dr. Ryan] are rejected inasmuch as there is a lack of 6 medical 7 restrictions. 8 indicates that [Plaintiff] has every limitation under the 9 Listing, yet this is contrary to the documentary evidence. pathology of record that would justify such In his March 2009 assessment[,] Dr. Ryan 10 11 (AR 19). 12 13 Indeed, Dr. Ryan s findings were primarily based on the treatment 14 records from May 14, 2008 and March 3, 2009, which do not support Dr. 15 Ryan s ultimate conclusions. 16 14, 2008, Dr. Ryan reported that Plaintiff suffered from degenerative 17 joint disease in multiple joints, was still obese and had insulin 18 dependent diabetes, despite her weight loss. 19 stressed the importance of weight loss and physical activity and 20 suggested to Plaintiff that she consider an insulin pump. 21 Dr. Ryan also recommended that Plaintiff follow up with Dr. Gainor, in 22 light of a possible meniscal tear. 23 Plaintiff was alert, well appearing, in no acute distress. 24 Dr. Ryan also stated that Plaintiff had a [n]ormal mood range and 25 affect. 26 Dr. Ryan reported that Plaintiff s impairments constantly interfered 27 with her ability to concentrate and maintain attention, no specific (AR 332). (AR 171, 218-21, 331-33). (AR 333). (AR 218). On May Dr. Ryan (AR 332-33). Dr. Ryan noted that (AR 332). Although in an accompanying May 14, 2008 Form, 28 27 1 finding was offered to support his conclusion. (AR 218-19). Dr. Ryan s 2 notes, completed on the same day as the May 14, 2008 Form, provide no 3 support for the extreme limitations he ultimately indicated on the 4 May 14, 2008 Form. 5 March 3, 2009 Form, which found that Plaintiff had every limitation of 6 Section 1.02 under the Listing, because Dr. Ryan s assessment was not 7 consistent with documentary evidence.6 (See AR 331-33). The ALJ also rejected Dr. Ryan s (AR 19, 300-01). 8 9 In rejecting Dr. Ryan s findings, the ALJ noted the findings of Dr. 10 Quint, 11 examining physician, Dr. Tran. 12 found that despite diabetes, degenerative joint disease, diabetes and 13 obesity, Plaintiff could perform light work with occasional limitations 14 in postural activities due to her knee problems. (AR 194-98). 15 December her 16 [Plaintiff] would be restricted with standing, walking no more than six 17 hours a day or activities involving frequent bending, stooping, kneeling 18 or crouching. 19 of knee range of motion. 20 threshold or not. 21 examination. 22 limitations assessed by Dr. Ryan were not supported by the findings of 23 either Dr. Quint or Dr. Tran. a State 2007, Agency Dr. reviewing Tran (AR 208). physician, (AR 18-19). found that and the consultative In October 2007, Dr. Quint based on In examination, Dr. Tran noted: [Plaintiff] has restriction It is unclear whether she has low pain It is unclear if she has maximum effort during the (Id.). Consequently, the ALJ found that the extreme (AR 18-19). 24 25 6 26 27 28 As Defendant correctly notes, the ALJ merely explained that Dr. Ryan s report stated that Plaintiff s impairments met the severity of the requirements of Section 1.02 under the Listing, not that Plaintiff actually met the requirements of the , set forth at 20 C.F.R. Part 404, Subpart P, Appendix 1. (Answer at 3 n. 2). 28 1 2 Accordingly, because the ALJ provided specific and legitimate reasons to reject Dr. Ryan s findings, no remand is required. 3 4 2. The ALJ Was Entitled To Reject Dr. Ryan s Findings To The 5 Extent Dr. Ryan Relied Upon Plaintiff s Subjective Complaints 6 Because There Were Clear And Convincing Reasons For Rejecting 7 Plaintiff s Testimony 8 9 To the extent that Dr. Ryan s findings relied upon Plaintiff s 10 subjective complaints, because the ALJ 11 testimony to be credible, it was also within the ALJ s discretion to 12 reject Dr. Ryan s findings. 13 Plaintiff testified that she is in constant pain, that her knees give 14 out, and that she uses a cane for balance, due to fluctuating glucose 15 levels, no end organ damage was indicated in the record. 16 ALJ explained: (See AR 20). did not find Plaintiff s The ALJ noted that although (Id.). 17 18 New records indicate [Plaintiff] now has a constant glucose 19 monitoring system that warns her when her glucose is not 20 within acceptable levels. When she has low glucose episodes, 21 she will experience extreme fatigue and need to rest for 22 about [two] hours. . . . Although [Plaintiff] alleges extreme 23 limitations in daily activities, and denies riding horses in 24 the past [eighteen] months, the record references horseback 25 riding through at least October 2008, with the claimant noted 26 to be riding horses [three to six] times a week in June 2007. 27 The claimant s allegations are less than fully credible. 28 29 The 1 (Id.). Indeed, because Plaintiff said that she could not engage in 2 activities like horseback riding, but evidence indicates that she rode 3 horses through at least October 2008, the ALJ did not find Plaintiff s 4 testimony credible. 5 [b]ecause [the treating physician s] diagnoses were based on the self 6 reporting of an unreliable person, the ALJ decided to accord them less 7 weight. 8 premised to a large extent upon the claimant s own accounts of his 9 symptoms and limitations may be disregarded, once those complaints have 10 themselves been properly discounted. ); see also Morgan v. Comm r, of 11 Social Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999) (internal 12 citations and quotations omitted) (holding that [a] physician s 13 opinion of disability premised to a large extent upon the claimant s own 14 accounts of his symptoms and limitations may be disregarded where those 15 complaints have been properly discounted. ). 16 the ALJ did not find Plaintiff s subjective complaints to be credible, 17 the ALJ properly rejected Dr. Ryan s findings to the extent that they 18 relied upon such subjective complaints. See Andrews, 53 F.3d at 1043 (finding that This [the ALJ] could legitimately do; an opinion of disability Accordingly, because 19 20 3. Conclusion 21 22 In sum, the ALJ s decision reflects express consideration of Dr. 23 Ryan s opinions. 24 his findings did not corroborate the findings of the objective medical 25 evidence. 26 Plaintiff s subjective complaints, the ALJ was entitled to discount them 27 because The ALJ properly rejected Dr. Ryan s opinions because To the extent that Dr. Ryan s findings were based on there were clear and convincing 28 30 reasons for rejecting 1 Plaintiff s testimony. Accordingly, the ALJ met her burden of giving 2 specific and legitimate reasons based on substantial evidence for 3 rejecting the Dr. Ryan s opinions in favor of the opinions of Drs. Quint 4 and Tran. No remand is required. 5 6 7 B. The ALJ Properly Found That Plaintiff s Impairments Did Not Meet Or Equal A Listing 8 9 At the third step of the five-step process, the ALJ must determine 10 whether the impairment or combination of impairments meets or equals an 11 impairment under the Listing. 12 impairment or combination of impairments meets or equals an impairment 13 under the Listing, the claimant is presumed disabled and benefits shall 14 be awarded. See Howard v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2003) 15 ( To determine whether a claimant is disabled, the ALJ must determine 16 whether a claimant s impairments meet, medically equal or functionally 17 equal a listed impairment in appendix 1 of Subpart P, part 404 of the 18 CFR. ); see Bowen v. Yuckert, 482 U.S. 137, 141, 107 S. Ct. 2287, 96 L. 19 Ed. 2d 119 (1987); see Lester v. Chater, 81 F.3d 821, 828 (9th Cir., as 20 amended April 9, 1996). See 20 C.F.R. § 416.920. If the 21 22 A claimant has the burden to show that her condition meets or 23 equals an impairment set forth under the Listing. See Tackett, 180 F.3d 24 at 1098. 25 she meets each characteristic of a listed impairment relevant to her 26 claim and must have every finding specified in the Listing. 27 1099; see 20 C.F.R. § 416.925(d). To meet a listed impairment, a claimant must demonstrate that 28 31 See id. at To equal a listed impairment, a 1 claimant must establish symptoms, signs and laboratory findings at 2 least equal in severity and duration to the characteristics of a 3 relevant listed impairment. 4 C.F.R. § 404.1526(a)). Tackett, 180 F.3d at 1099 (quoting 20 5 6 In making a determination of disability, the ALJ must develop the 7 record and interpret the medical evidence. Howard, 341 F.3d at 1012 8 (internal citations omitted). 9 combined effect of all the claimant s impairments without regard to 10 whether any such impairment, if considered separately, would be of 11 sufficient severity. 12 interpreting the evidence and developing the record, the ALJ does not 13 need to discuss every piece of evidence. 14 (citing Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998)); see also, 15 Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984). In doing so, the ALJ must consider the (Id.; see 20 C.F.R. § 416.923). However, in Howard, 341 F.3d at 1011 16 17 18 Here, the ALJ determined that Plaintiff s alleged impairments did 19 not meet or medically equal any impairment under the Listing. 20 As discussed above, the ALJ afforded Dr. Ryan s findings little weight 21 because his treatment records do not document signs, symptoms and/or 22 laboratory 23 limitations he assesses. 24 opinions from State agency physicians who took into account all of 25 Plaintiff s alleged impairments. (AR 17-20). The reviewing physicians 26 considered Plaintiff s obesity and claims of pain and the examining 27 physician 28 degenerative joint disease, as well as her mild to moderate obesity. findings or considered objective (AR 19). Plaintiff s 32 observations supportive (AR 17). of the Instead, the ALJ relied on the diabetes, hypertension, and 1 (AR 194-98, 205-08). These physicians reported that Plaintiff was 2 capable of performing at a sedentary exertional level. 3 98, 205-08, 210). (AR 18-19, 194- 4 5 The ALJ observed that although Dr. Ryan indicates that [Plaintiff] 6 has every limitation under the Listing . . . this is contrary to the 7 documentary evidence. 8 Dr. Ryan s findings that Plaintiff met the criteria of Section 1.02 9 under the Listing. (AR 19). For these reasons, the ALJ rejected (Id.). 10 11 Moreover, the ALJ also concluded that Plaintiff did not present 12 sufficient evidence that her diabetes met Section 9.08 under the 13 Listing. (AR 17). In particular, Plaintiff had no neuropathy, produced 14 no appropriate lab results and had no visual impairment.7 15 171-73, 175, 177, 179, 182, 227, 229-40, 258-59, 288, 302-03, 305, 312, 16 314-16, 320, 324, 327-29, 335-39). 17 obese, she failed to provide evidence indicating that the extra weight 18 affected her cardiovascular, pulmonary or musculoskeletal systems. (See 19 AR 175-76, 205-08, 223-25, 241, 332-33, 359; see Celaya v. Halter, 332 20 F.3d 1177 n. 1 (9th Cir. 2003) (finding that [o]besity may still enter 21 into a multiple impairment analysis, but only by dint of its impact upon 22 the 23 system. ). Thus, Plaintiff failed to establish that her impairments met 24 or equaled any of the Sections under the Listing. claimant s musculoskeletal, (AR 19-20, Indeed, even though Plaintiff was respiratory, or cardiovascular 25 26 27 28 7 Plaintiff contends that her impairments meet or equal Section 1.02 under the Listing, pursuant to Dr. Ryan s findings, but for the reasons stated above, the Court rejects Dr. Ryan s findings. (See Compl. Mem. 7-8). 33 1 The ALJ also found that [Plaintiff s] statements concerning the 2 intensity, persistence and limiting effects of these symptoms are not 3 credible to the extent they are inconsistent with the above residual 4 functional capacity assessment. 5 above, the ALJ concluded that the record references horseback riding 6 through at least October 2008, with [Plaintiff] noted to be riding 7 horses 3-6 times a week in June 2007, such that Plaintiff s allegations 8 of disabling pain are less than fully credible, and her alleged 9 limitations are not corroborated by the objective medical evidence. 10 (AR 19). Specifically, as mentioned (AR 20). 11 12 As the Ninth Circuit explained in Lewis v. Apfel, an ALJ is simply 13 require[d] . . . to discuss and evaluate the evidence that supports his 14 or her conclusion; [controlling caselaw] does not specify that the ALJ 15 must 16 (9th Cir. 2001). 17 impairment or combination of impairments that meets or medically equals 18 one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 19 1 (20 CFR 404.1520(d), 404.1525, and 404.1526). 20 considered Plaintiff s degenerative joint disease of the knees, history 21 of moderate and morbid obesity, and insulin-dependent diabetes mellitus. 22 (AR 23 conditions were contrary to the documentary evidence and less than fully 24 credible, Plaintiff s alleged conditions failed to meet or equal each 25 element of any Section under the Listing. 26 (internal citations omitted) (holding that [i]n determining whether the 27 claimant s combination of impairments equals a particular Listing, the 28 Commissioner must consider whether his symptoms, signs, and laboratory do so 17-19). under the heading Finding. 236 F.3d 503, 513 Here, the ALJ stated that Plaintiff does not have an The ALJ explained that 34 because (AR 17). Plaintiff s The ALJ alleged See Lester, 81 F.3d at 829 1 findings are at least equal in severity to the listed criteria. ). 2 Therefore, 3 Findings, she nonetheless found that Plaintiff s alleged impairments 4 did not meet or equal any Section under the Listing. even though the ALJ did not do so under the heading (Id.). 5 6 The ALJ performed a proper step three analysis when she rejected 7 the findings of Dr. Ryan because they were not supported by the record, 8 and instead, relied upon the opinions of the State agency physicians to 9 determine that Plaintiff s impairments did not meet or equal any of the 10 Sections under the Listing. Further, to the extent that the burden 11 rested with Plaintiff to show a disability, Plaintiff failed to present 12 sufficient evidence that her diabetes met all the criteria for Section 13 9.08 under the Listing. See Sullivan, 491 U.S. at 530-31. Accordingly, 14 the ALJ properly discussed and evaluated evidence to support the 15 conclusion that Plaintiff s impairments singularly or in combination, 16 did not meet or equal any of the Sections under the Listing. 17 19). (AR 17- 18 19 C. The ALJ Properly Assessed Plaintiff s RFC And The Resulting Hypothetical Question Was Adequate 20 21 22 1. Proper Assessment of Plaintiff s Residual Functional Capacity 23 24 Although the ALJ found that Plaintiff s medically determinable 25 impairments could reasonably be expected to cause the alleged symptoms, 26 the 27 intensity, persistence and limiting effects of these symptoms are not 28 credible to the extent they are inconsistent with the above residual ALJ concluded that [Plaintiff s] 35 statements concerning the 1 functional capacity assessment. (AR 19). The ALJ stated: 2 3 The medical opinions of consultant examiner Dr. Tran, and 4 State 5 residual functional capacity for less than light work are 6 fully credible based upon supportability with medical signs 7 and laboratory findings, and consistency with the evidence. agency medical consultant Dr. Quint indicating a 8 9 (Id.). 10 11 The ALJ properly found that Plaintiff has the residual functional 12 capacity to do other work. 13 claimant s 14 individual s ability to do sustained work-related physical and mental 15 activities in a work setting on a regular basis and is defined as 16 meaning [eight] hours a day, for [five] days a week, or an equivalent 17 work schedule. 18 1291 (holding that [a] claimant s residual functional capacity is 19 what a claimant can still do despite her limitations. ). Further, [i]n 20 determining 21 subjective symptoms such as fatigue and pain. 22 Security Ruling 88-13 and 20 C.F.R. § 404.1529(d))). residual Social Security Ruling 96-8p defines a functional capacity as an assessment of an Social Security Ruling 96-8p; see Smolen, 80 F.3d at residual functional capacity, the ALJ must consider (Id. (citing Social 23 24 The ALJ found that the medical opinions of Drs. Tran and Quint were 25 supported by the record and consistent with the evidence. 26 Indeed, based on a comprehensive orthopedic evaluation, Dr. Tran 27 concluded that Plaintiff would be restricted with standing, walking no 28 more than six hours a days or with activities involving frequent 36 (AR 19). 1 bending, stooping, kneeling or crouching. 2 therefore restricted 3 stooping, kneeling 4 performance of these activities would not have a significant effect on 5 the occupational base for light or sedentary work. 6 contrast, as mentioned above, Dr. Ryan s treatment records did not 7 document signs, symptoms and/or laboratory findings or objective 8 observations supportive of the limitations he assessed. 9 Accordingly, the ALJ properly relied on the medical opinions of Drs. 10 Plaintiff or from crouching, (AR 205-06, 208). performing but frequent concluded that Dr. Tran bending, occasional (AR 208). By (AR 19). Tran and Quint to assess Plaintiff s residual functional capacity. 11 12 2. Proper Hypothetical Question 13 14 If a claimant shows that he or she cannot return to his or her 15 previous job, the burden of proof shifts to the Secretary to show that 16 the claimant can do other kinds of work. 17 418, 422 (9th Cir. 1988). 18 the claimant can perform other types of work that exist in the national 19 economy. 20 ability to perform specific jobs, the Secretary must use a vocational 21 expert to meet that burden. (Id.). Embrey v. Bowen, 849 F.2d Specifically, the Secretary must show that Without other reliable evidence of a claimant s (Id.). 22 23 The testimony of a vocational expert is valuable only to the 24 extent that it is supported by medical evidence. 25 881 F.2d 747, 757 (9th Cir. 1989). 26 about a claimant s residual functional capacity has no evidentiary value 27 if the assumptions in the hypothetical are not supported by the record. 28 (Id.); see Osenbrock v. Apfel, 240 F.3d 1157, 1163 (9th Cir. 2001) 37 Magallanes v. Bowen, The vocational expert s opinion 1 (holding that [a]n ALJ must propose a hypothetical that is based on 2 medical assumptions supported by substantial evidence in the record that 3 reflects each of the claimant s limitations. ). 4 5 Therefore, [i]n order for the testimony of a [vocational expert] 6 to be considered reliable, the hypothetical posed must include all of 7 the 8 supported by the record. 9 (9th Cir. 1995). claimant s functional limitations, both physical and mental Flores v. Shalala, 49 F.3d 562, 570-71 An ALJ is free to accept or reject restrictions in 10 a hypothetical question that are not supported by substantial evidence. 11 Osenbrock, 240 F.3d at 1163. 12 13 In Thomas v. Barnhart, the Ninth Circuit held: 14 15 Without objective 16 [required medical assistance], and in light of the ALJ s 17 findings 18 credibility, there [is] no reason to include [the claimant s] 19 subjective 20 hypothetical to the VE. with use medical respect of evidence to [the [the medical that [the claimant s] assistance] claimant] lack in of the 21 22 Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002); see Greger 23 v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006) (internal citations 24 omitted) ( The ALJ . . . is free to accept or reject restrictions in a 25 hypothetical question that are not supported by substantial evidence. ); 26 see Copeland v. Bowen, 861 F.2d 536, 540 (9th Cir. 1988) (holding that 27 exclusion of some of a claimant s subjective complaints in questions 28 to a vocational expert is not improper if the ALJ makes specific 38 1 findings justifying his decision not to believe the claimant s testimony 2 about claimed impairments such as pain. ). 3 4 Here, because the ALJ found that Plaintiff s testimony was not 5 credible, and that determination is supported by substantial evidence, 6 as discussed above, the hypothetical questions posed to the VE did not 7 have to include Dr. Ryan s findings or Plaintiff s testimony. 8 example, Plaintiff failed to show that the pain she allegedly suffered 9 interfered with her mental functioning or rose to the level she alleged. For 10 (See AR 31, 36). 11 the-counter pain relievers, like Tylenol and Advil, which would have 12 likely not been sufficient, had the pain been as severe as Plaintiff 13 alleged.8 14 to the inconsistencies within claimant s testimony, the ALJ noted the 15 absence of medical treatment for claimant s back problem between 1983 16 and October 23, 1986, suggesting that if the claimant had actually been 17 suffering from the debilitating pain she claimed she had, she would have 18 sought medical treatment during that time. ). Indeed, Plaintiff testified that she used mild over- (AR 20, 31, 36; see Johnson, 60 F.3d at 1434 ( In addition 19 20 Further, as discussed above, the ALJ found the findings of 21 Drs. Tran and Quint, who reported that Plaintiff could perform sedentary 22 work, to be more reliable than Dr. Ryan s findings. (AR 18-19, See also 23 AR 208). Thus, as Defendant contends, the occasional performance of 24 8 25 26 27 28 The Court notes that although a conservative course of treatment can undermine allegations of debilitating pain, such fact is not a proper basis for rejecting the claimant s credibility where the claimant has a good reason for not seeking more aggressive treatment. Carmickle, 533 F.3d at 1162. Here, Plaintiff only asserted that she could not take stronger pain medication on account of the gastric bypass surgery in her testimony. (AR 31). 39 1 these activities would not have a significant effect on the occupational 2 base for light or sedentary work. 3 (occasional postural activities have no effect on sedentary and light 4 occupational base)). 5 was familiar with the definition for sedentary work, the hypothetical 6 question was reasonable. (Answer at 6; see SSR 85-15 Because it is reasonable to presume that the VE See Magallanes, 881 F.2d at 755. 7 8 The hypothetical posed to the VE reflected all the limits supported 9 by the record because it was based on the reports of Drs. Tran and 10 Quint. The ALJ properly told the VE that Plaintiff could perform only 11 sedentary work, as defined by 20 C.F.R. § 404.1567(a); should use a cane 12 when walking or standing; should not work around unprotected heights or 13 dangerous machinery; and could occasionally walk on uneven terrain. (AR 14 17, 41-42). 15 evidence in the record, the ALJ s residual functional capacity finding 16 was reasonable and the ALJ s reliance on the VE s testimony was proper. Accordingly, because the ALJ relied on substantial medical 17 18 D. The ALJ Properly Rejected Plaintiff s Testimony And The Appeals Council Properly Weighed The Third-Party Statements 19 20 21 Plaintiff s fourth claim is that the ALJ improperly rejected 22 Plaintiff s testimony and the Appeals Council ruled to properly weigh 23 the third-party written statements of Hansen and Redd. 24 15). 25 her testimony were not specific, clear, or convincing, as required by 26 Smolen. 27 and close friend, Redd, submitted statement[s] to the Appeals Council 28 verifying that [P]laintiff has not ridden her horses since early 2007 (Compl. Mem. at Plaintiff contends that the ALJ s proffered reasons for rejecting (Id. at 17). Plaintiff also claims that her husband, Hansen, 40 1 and that her activities with the care of her horses are severely 2 limited. (Id. at 19). The Court disagrees. 3 4 1. Plaintiff s Testimony 5 6 Whenever an ALJ s disbelief of a claimant s testimony is a critical 7 factor in a decision to deny benefits, as is the case here, the ALJ must 8 make explicit credibility findings. 9 1229, 1231 (9th Cir. 1990). Rashad v. Sullivan, 903 F.2d To determine whether a claimant s 10 testimony regarding subjective pain or symptoms is credible, an ALJ must 11 engage in a two-step analysis. 12 1028, 1036 (9th Cir. 2007). 13 claimant has presented objective medical evidence of an underlying 14 impairment which could reasonably be expected to produce the pain or 15 other symptoms alleged. (Id. (internal quotation marks omitted)). The 16 claimant, however, need not show that her impairment could reasonably 17 be expected to cause the severity of the symptom she has alleged; she 18 need only show that it could reasonably have caused some degree of the 19 symptom. See Lingenfelter v. Astrue, 504 F.3d First, the ALJ must determine whether the (Id. (internal quotation marks omitted)). 20 21 If the claimant meets this first test, and there is no evidence of 22 malingering, the ALJ can reject the claimant s testimony about the 23 severity of her symptoms only by offering specific, clear and convincing 24 reasons for doing so. 25 omitted). 26 deny disability benefits solely because the degree of pain alleged is 27 not supported by objective medical evidence. 28 947 F.2d 341, 346-47 (9th Cir. 1991). Smolen, 80 F.3d at 1281 (internal citations The ALJ may not discredit a claimant s testimony of pain and 41 See Bunnell v. Sullivan, 1 2 However, an ALJ may reject testimony if the claimant s credibility is questionable: 3 4 In weighing a claimant s credibility, the ALJ may consider 5 his reputation for truthfulness, inconsistencies either in 6 his testimony or between his testimony and conduct, his daily 7 activities, his work record, and testimony from physicians 8 and third parties concerning the nature, severity, and effect 9 of the symptoms of which he complains. 10 11 Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997); see 12 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (finding that 13 objective medical evidence supporting the severity of the claimant s 14 claimed limitations was inconsistent with the claimant s testimony). 15 As the Ninth Circuit explained in Light, [a]n ALJ s finding that a 16 claimant generally lacked credibility is a permissible basis to reject 17 pain testimony. 18 claimant not credible, the ALJ must rely either on reasons unrelated to 19 the subjective testimony (e.g., reputation for dishonesty), or conflicts 20 between his testimony and his own conduct, or on internal contradictions 21 in that testimony. 22 supported by substantial evidence in the record, the Court may not 23 engage in second-guessing. Light, 119 F.3d at 792. (Id.). However, [t]o find the If the ALJ s credibility finding is 24 25 Here, the ALJ applied the two-step analysis to Plaintiff s 26 subjective symptom testimony and found clear and convincing evidence for 27 rejecting Plaintiff s testimony. The ALJ explained: 28 42 1 [Plaintiff s] medically 2 reasonably expected 3 however, [Plaintiff s] statements concerning the intensity, 4 persistence and limiting effects of these symptoms are not 5 credible to the extent they are inconsistent with the above 6 residual functional capacity assessment. be determinable to cause impairments the alleged could symptoms; 7 8 (AR 19). 9 10 The ALJ noted that the primary basis on which disability is 11 alleged is disabling pain, but a lack of objective evidence supported 12 Plaintiff s claimed limitations. 13 stated that Plaintiff takes only Tylenol for her pain. 14 31). Similarly, although Plaintiff claimed that she is in constant pain 15 and that her knees give out due to fluctuating glucose levels, no end 16 organ damage was indicated in the record. 17 that [n]ew records indicate that [Plaintiff] now has a constant glucose 18 monitoring system that warns her when her glucose is not within 19 acceptable levels. (AR 19). As mentioned above, the ALJ (AR 20). (AR 20, 30- The ALJ explained (AR 20). 20 21 Plaintiff s physical therapy notes showed an increased ability to 22 walk, reduced pain and 80-85% improvement. (AR 252, 260, 282). 23 notes of Rene Orquiza, M.D., dated December 12, 2007, also indicate that 24 Plaintiff suffered from only mild osteoarthritic and osteopenic changes 25 in her knees: 26 27 There is no evidence of fractures, dislocations, or bone 28 destruction. Mild osteoarthritic and osteopenic changes on 43 The 1 both knees in the forms of marginal sclerosis, hypertrophic 2 lipping, with moderate joint spaces narrowing. 3 tissues 4 IMPRESSION: and osteopenic 5 changes with moderate joint spaces narrowing. No acute 6 osseous injury changes. Otherwise unremarkable exam. and suprapatellar Bilateral mild bursa are osteoarthritic The soft unremarkable. 7 8 (AR 210). Dr. Ryan s Progress Note from May 14, 2008 further indicates 9 that Plaintiff was in no acute distress. (AR 332). Although 10 Plaintiff also alleged that she did not respond well, but the ALJ noted 11 that the record indicates that [Plaintiff] has good response to Hyalgan 12 injections. 13 in July 2009 that she had not ridden horses for at least 18 months: (AR 20, 30-31; see also AR 184-86). Plaintiff testified 14 15 I haven t . . . ridden horses in, well, a good, year-and-a- 16 half or so. 17 able to get back on them, but . . . I have a friend that 18 rides them right now for me, but . . . I m not sure if I ll 19 be able to . . . keep them. I still own them. I m hoping some day to be 20 21 (AR 20, 34). However, other evidence indicated that Plaintiff had 22 ridden horses in 2007 and continued to ride in 2008. 23 patient rides her horse [three to six] times per week ), 264, 266, 278 24 ( She does ride horses a bit and tries to do the best she can, but she 25 does have some limitations. )). 26 Plaintiff was involved in the care and feeding of her horses. (AR 140). 27 Based on this evidence, it was reasonable for the ALJ to reject 28 Plaintiff s pain testimony. (AR 258 ( The Additional evidence suggested that 44 1 Thus, the ALJ provided clear and convincing reasons for rejecting 2 Plaintiff s credibility. 3 identified several contradictions between claimant s own testimony and 4 the 5 contradictions within the claimant s own testimony. We will not reverse 6 credibility determinations of an ALJ based on contradictory or ambiguous 7 evidence. ). relevant medical See Johnson, 60 F.3d at 1434 ( The ALJ also evidence and cited several instances of 8 9 2. Third-Party Statements 10 11 Plaintiff alleges that the Appeals Council erred when it rejected 12 the third-party written statements provided by her husband, Hansen, and 13 her close friend, Redd. 14 Plaintiff argues that it was improper for the Appeals Council to 15 summarily discount these third-party statements by stating that: this 16 information does not provide a basis for changing the Administrative Law 17 Judge s decision. (Compl. Mem. at 19-20). Specifically, (Id. at 19; AR 5). 18 19 In Carmickle, the Ninth Circuit explained that [t]he ALJ must 20 consider competent lay testimony but in rejecting such evidence, [the 21 ALJ] need only provide reasons for doing so that are germane to the 22 witness. 23 ALJ can reject the testimony of lay witnesses only if he gives reasons 24 germane to each witness whose testimony he rejects. ). 533 F.3d at 1164; Smolen, 80 F.3d at 1289 (holding that the 25 26 The Appeals Council received the third-party statements but found 27 that they did not provide grounds for reversing the ALJ s decision. 28 (See AR 5, 7). Although these statements suggest that Plaintiff s 45 1 riding ceased in either 2006 or 2007, there is record evidence to 2 contradict these 3 continued through 4 credibility determination and reasoning were adequately supported by 5 substantial evidence in the record, the Appeals Council made a proper 6 determination regarding the materiality of the third-party statements. statements, 2007 and suggesting 2008. that Therefore, Plaintiff s because the riding ALJ s 7 8 Even if this Court were to remand this action, in order to consider 9 this conflicting evidence, the result would remain the same for several 10 reasons. First, there remains compelling evidence in the record that 11 Plaintiff engaged in physical activity inconsistent with her claims of 12 disability. 13 Dr. Ryan, is consistent with a finding that Plaintiff is not disabled. 14 As such, because the ALJ s determination is reasonable, it will not be 15 second-guessed by this Court. 16 (holding that as long as there remains substantial evidence supporting 17 the ALJ s conclusions on . . . credibility and the error does not negate 18 the validity of the ALJ s ultimate credibility conclusion, such is 19 deemed harmless and does not warrant reversal. ). 20 decision remains legally valid despite these third-party statements and 21 no remand is required. 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ Second, the medical evidence, other than the findings of See Carmickle, 533 F.3d at 1161-62 46 Thus, the ALJ s 1 VIII. 2 CONCLUSION 3 4 Consistent with the foregoing, and pursuant to sentence four of 42 5 U.S.C. § 405(g),9 IT IS ORDERED that judgment be entered AFFIRMING the 6 decision of the Commissioner. 7 the Court serve copies of this Order and the Judgment on counsel for 8 both parties. IT IS FURTHER ORDERED that the Clerk of 9 10 DATED: June 8, 2011 11 12 _____/S/______________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 This sentence provides: The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. 47

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