Maria Castro De Jesus v. Michael J Astrue, No. 5:2007cv01247 - Document 22 (C.D. Cal. 2009)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)
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1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 MARIA CASTRO DE JESUS, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. EDCV 07-1247-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on October 10, 2007, seeking review of 19 the denial by the Social Security Commissioner ( Commissioner ) of 20 plaintiff s application for supplemental security income ( SSI ). 21 January 7, 2008, the parties consented to proceed before the undersigned 22 United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). 23 parties filed a Joint Stipulation on July 8, 2008, in which: 24 seeks an order reversing the Commissioner s decision and awarding 25 benefits or, in the alternative, remanding the matter for further 26 administrative proceedings; and defendant seeks an order affirming the 27 Commissioner s decision. 28 Stipulation under submission without oral argument. On The plaintiff The Court has taken the parties Joint SUMMARY OF ADMINISTRATIVE PROCEEDINGS 1 2 3 On June 9, 2003, plaintiff filed a prior application for SSI, which 4 was denied initially, upon reconsideration, and by Administrative Law 5 Judge F. Keith Varni ( ALJ Varni ) in a written decision dated January 6 18, 2005. 7 appeal ALJ Varni s decision. (Administrative Record ( A.R. ) 57-64.) Plaintiff did not 8 9 On March 8, 2005, plaintiff filed another application for SSI, 10 alleging an inability to work since May 1, 2003, due to depression. 11 (A.R. 94-96, 99, 105.) 12 105.) Plaintiff has no past relevant work.1 (A.R. 23, 13 14 The Commissioner denied plaintiff s application initially (A.R. 75- 15 79) and on reconsideration (A.R. 68-73). On February 8, 2007, 16 plaintiff, who was represented by counsel, testified at a hearing before 17 Administrative Law Judge Thomas J. Gaye ( ALJ ). 18 March 29, 2007, the ALJ denied plaintiff s claim in a written decision. 19 (A.R. 17-24.) (A.R. 205-14.) On 20 21 Thereafter, the Appeals Council received from plaintiff a timely 22 request for review 23 evidence, i.e., a two-page work capacity evaluation form, dated March 24 14, 2007, from Imelda Alfonso, M.D., who plaintiff claimed was her 25 treating psychiatrist. 26 this additional of the ALJ s decision, (A.R. 10, 203-04.) evidence part of the along with additional The Appeals Council made record. (A.R. 9.) 27 28 1 Plaintiff last worked as a seamstress in 1980. 2 (A.R. 105.) After 1 consideration of this new evidence, the Appeals Council concluded that 2 it did not provide any basis to overturn the ALJ s decision. 3 6). (A.R. 4- 4 5 SUMMARY OF ADMINISTRATIVE DECISION 6 7 In his written decision, the ALJ found that plaintiff has not 8 engaged in substantial gainful activity since May 1, 2003, the alleged 9 disability onset date. (A.R. 19.) The ALJ further found 10 plaintiff s only severe impairment is an affective disorder. 11 that 20.) (A.R. 12 13 The ALJ determined that plaintiff has the residual functional 14 capacity to perform a full range of exertional work, but she is 15 moderately limited in her ability to carry out detailed instructions 16 and mildly limited in concentration. [She] is literate in Spanish, but 17 has limited English capability. (A.R. 20.) 18 19 Based on a review of the evidence, the ALJ determined that 20 plaintiff has not met her burden of proof in overcoming the continuing 21 presumption of nondisability raised by the administrative law judge 22 decision of January 18, 2005. (A.R. 22.) 23 24 Having considered plaintiff s age, education, work experience, and 25 residual functional capacity, and in reliance on testimony from a 26 vocational expert, the ALJ found that jobs exist in significant numbers 27 in the national economy that plaintiff can perform, such as a hand 28 packager, cleaner, and dining room attendant. 3 (A.R. 23.) 1 Accordingly, the ALJ concluded that plaintiff has not been under a 2 disability, as defined in the Social Security Act, since March 8, 2005, 3 the date the application was filed. (A.R. 24.) 4 5 STANDARD OF REVIEW 6 7 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 8 decision to determine whether it is free from legal error and supported 9 by substantial evidence in the record as a whole. Orn v. Astrue, 495 10 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is such relevant 11 evidence as a reasonable mind might accept as adequate to support a 12 conclusion. 13 a mere scintilla but not necessarily a preponderance. 14 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). 15 record can constitute substantial evidence, only those reasonably 16 drawn from the record will suffice. 17 1063, 1066 (9th Cir. 2006)(citation omitted). Id. (citation omitted). The evidence must be more than Connett v. While inferences from the Widmark v. Barnhart, 454 F.3d 18 19 Although this Court cannot substitute its discretion for that of 20 the Commissioner, the Court nonetheless must review the record as a 21 whole, weighing both the evidence that supports and the evidence that 22 detracts from the [Commissioner s] conclusion. 23 Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 24 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 25 responsible for determining credibility, resolving conflicts in medical 26 testimony, and for resolving ambiguities. 27 1035, 1039-40 (9th Cir. 1995). 28 4 Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d The Court will uphold the Commissioner s decision when the evidence 1 2 is susceptible to more than one rational interpretation. Burch v. 3 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 4 review only the reasons stated by the ALJ in his decision and may not 5 affirm the ALJ on a ground upon which he did not rely. 6 at 630; see also Connett, 340 F.3d at 874. 7 the Commissioner s decision if it is based on harmless error, which 8 exists only when it is clear from the record that an ALJ's error was 9 inconsequential to the ultimate nondisability determination. Robbins 10 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 11 Comm r, 454 F.3d 1050, 1055-56 (9th Cir. 2006)); see also Burch, 400 12 F.3d at 679. However, the Court may Orn, 495 F.3d The Court will not reverse 13 14 DISCUSSION 15 16 Plaintiff alleges the following four issues: (1) whether the ALJ 17 properly developed the record; (2) whether the Appeals Council properly 18 considered the treating psychiatrist s opinion; (3) whether the ALJ 19 properly 20 ( GAF ) scores; and (4) whether the ALJ posed a complete hypothetical 21 question.2 22 /// 23 /// 24 /// 25 /// considered the clinical global assessment of functioning (Joint Stipulation ( Joint Stip. ) at 2-3.) 26 2 27 28 Plaintiff s arguments regarding development of the record and the ALJ s failure to consider the 2002 and 2003 GAF scores assigned by a social worker, appear to ignore the res judicata effect of ALJ Varni s 2005 decision. 5 1 I. 2 Plaintiff Failed To Rebut The Presumption Of Continuing NonDisability, And The ALJ Had No Duty To Develop The Record. 3 Although applied less rigidly to administrative than to judicial 4 5 proceedings, principles 6 administrative decisions. 7 Cir. 1995); Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988); Lyle v. 8 Sec y of Health and Human Servs., 700 F.2d 566, 568 (9th Cir. 1983). A 9 final a determination that of res judicata nevertheless apply to See Lester v. Chater, 81 F.3d 821, 827 (9th a claimant is not disabled creates 10 presumption that the claimant retains the ability to work after the date 11 of the prior administrative decision. 12 Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); Lyle, 700 F.2d at 568. 13 This presumption of continuing non-disability may be overcome by a 14 showing of changed circumstances. See Lester, 81 F.3d at 827; Chavez, 15 844 F.2d at 693. See Schneider v. Comm r of Soc. 16 17 If a claimant does not meet her burden to adduce proof of change 18 in her medical condition or other changed circumstances, such as a new 19 medically-determinable impairment, an increase in the severity of an 20 existing impairment, or a change in her age category, the Commissioner 21 is not obliged to make a de novo determination of non-disability, even 22 when the burden of establishing disability otherwise would fall to the 23 Commissioner. 24 1378, 25 disability 26 Commissioner at step five, as it normally does, because the unappealed 27 denial of the claimant s earlier application created a presumption of 28 non-disability that must be overcome by the claimant s showing of 1379-80 See Booz v. Sec y of Health and Human Servs., 734 F.2d (9th Cir. 1984)(holding that remained with the and claimant 6 the did burden not to shift prove to the 1 changed circumstances, and where the ALJ permissibly concluded the 2 claimant had produced no reliable medical evidence that he was disabled, 3 the claimant had not met that burden); Lyle, 700 F.2d at 568-569 4 (holding 5 determined 6 circumstances to overcome the presumption that his ability to do light 7 work persisted, the absence of proof of change was enough to meet the 8 Secretary s burden to show the claimant could perform alternative work; 9 the Secretary was not required again [to] meet his burden de novo ). that the when the claimant second had administrative presented no law judge evidence of properly changed 10 11 In Social Security cases, the ALJ has a special duty to develop 12 the record fully and fairly and to ensure that the claimant s interests 13 are considered, even when the claimant is represented by counsel. 14 Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001); see also 15 Tonapetyan v. Halter, 242 F.3d at 1150; Smolen v. Chater, 80 F.3d 1273, 16 1288 (9th Cir. 1996); Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 17 1983); see also 20 C.F.R. § 416.912(d). 18 there is ambiguous evidence or when the record is inadequate to allow 19 for proper evaluation of the evidence. 20 C.F.R. § 416.912(e) (discussing same). The duty is triggered when Mayes, 276 F.3d at 459-60; 20 21 22 In the present case, plaintiff contends that the ALJ failed to 23 develop the record by not obtaining an April 28, 2004 work capacity 24 evaluation form, completed by one of plaintiff s purported treating 25 psychiatrists, E. Prepetit, M.D., which was submitted with plaintiff s 26 prior application for benefits but is missing from the Administrative 27 Record. 28 material ambiguity in the record (and the Court has found none), and the (Joint Stip. at 3-7.) However, as plaintiff has pointed to no 7 1 present record is adequate to allow for proper evaluation of the 2 evidence, the ALJ was under no duty to further develop the record. 3 In his 2005 decision, ALJ Varni found that plaintiff suffered from 4 5 severe impairments of affective disorder and Vicodin abuse. 6 64.) 7 (A.R. Prepetit s opinion and stated: In his unappealed decision, ALJ Varni expressly addressed Dr. 8 9 On April 28, 2004, E. Prepetit, M.D., completed [a] work 10 capacity evaluation on behalf of [plaintiff] (Exhibit 20F, pp. 11 1-2). 12 that is not accompanied with a physical or mental examination. 13 Id. This is a checklist format style disability statement 14 15 I have read, considered and rejected Dr. Prepetit s statement 16 of disability in the completed mental residual functional 17 capacity form at exhibit 20F. 18 prepared by County doctors. 19 not even seen [plaintiff] since the initial contact on June 6, 20 2003 note at exhibit 9F, page 9. 21 the records again and it was clear that Dr. Morales was the 22 treating physician. 23 reader this in his egregiously exaggerated form at exhibit 24 20F. His incredible assertions are completely rebutted by the 25 actual records showing minimal once a month treatment and 26 consistent notation of improvement on behalf of [plaintiff]. This is typical of those forms It appears that Dr. Prepetit has His name never appeared in Dr. Prepetit does not bother to tell the 27 28 (A.R. 61.) ALJ Varni ultimately concluded that plaintiff was capable of 8 1 performing work that existed in significant numbers in the national 2 economy. 3 decision of the Commissioner and created a rebuttable presumption of 4 continuing non-disability. (Id.) ALJ Varni s unappealed decision became the final 5 6 Nowhere in her portion of the Joint Stipulation does plaintiff 7 offer evidence of changed circumstances or that her condition, i.e., her 8 affective disorder, has worsened since ALJ Varni s 2005 decision. 9 Plaintiff asserts that the absence from the Administrative Record of Dr. 10 Prepetit s 2004 work capacity evaluation form is mysterious (Joint 11 Stip. at 6) and requires remand, because that evaluation appears to be 12 consistent with the work capacity evaluation completed by Dr. Alfonso on 13 March 14, 2007. (Joint Stip. at 4; emphasis added.) Assuming arguendo 14 the correctness of plaintiff s contention that Dr. Prepetit s 2004 15 opinion 16 Prepetit s 17 conclusion that plaintiff s condition has worsened.3 Indeed, plaintiff s 18 medical 19 disability; rather, they reveal that as of March 2005, plaintiff was 20 being seen regularly for medication management and was stable and 21 well-maintained. 22 burden to prove that her medical condition has deteriorated and, thus, 23 has fallen short of rebutting the presumption of continuing non- 24 disability. is consistent previously records fail with rejected to Dr. Alfonso s evaluation demonstrate (A.R. 140-41.) any 2007 would evaluation, not indication support of Dr. the greater Plaintiff has failed to meet her 25 26 3 27 28 Under Chavez, plaintiff must prove changed circumstances indicating a greater disability since the date of ALJ Varni s decision, i.e., January 18, 2005, not since the date of plaintiff s alleged disability onset, i.e., May 1, 2003, as plaintiff contends. 9 1 Accordingly, ALJ Varni s findings regarding Dr. Prepetit s opinion 2 are entitled to res judicata effect, and the ALJ was under no duty to 3 develop the record further by obtaining Dr. Prepetit s 2004 work 4 capacity evaluation form. 5 record is immaterial. The absence of this form from the current 6 7 II. The Appeals Council Provided The Requisite Specific And Legitimate 8 Reasons For Rejecting The Work Capacity Evaluation Form Completed 9 By Imelda Alfonso, M.D. 10 11 Generally, a treating physician s opinion is given greater weight 12 because he is employed to cure and has a greater opportunity to know 13 and observe the patient as an individual. 14 F.2d 747, 751 (9th Cir. 1989)(citation omitted). 15 treating physician s opinion is directly proportional to the length of 16 the relationship between the physician and claimant and the frequency of 17 the examinations. 18 physician s opinion may only be given controlling weight when it is 19 well-supported 20 diagnostic techniques and it is consistent with other substantial 21 evidence in the record. 22 is contradicted, it may be rejected by the ALJ only for specific, 23 legitimate reasons, based on substantial evidence in the record. 24 Magallanes, 881 F.2d at 751; Widmark v. Barnhart, 454 F.3d 1063, 1066-67 25 (9th Cir. 2006); see Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 26 2002)( The ALJ need not accept the opinion of any physician, including 27 a 28 inadequately supported by clinical findings. ); see also Batson v. treating by Magallanes v. Bowen, 881 20 C.F.R. § 416.927(d)(2). medically physician, Id. if acceptable The weight given to a Further, a treating clinical and laboratory When the opinion of a treating physician that opinion 10 is brief, conclusory, and 1 Comm r of Soc. Sec. Admin., 359 F.3d 1190, 1195 & n.3 (9th Cir. 2004) 2 (upholding the ALJ s rejection of an opinion that was conclusionary in 3 the form of a check-list, and lacked supporting clinical findings); 4 Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996)(ALJ properly rejected 5 doctors 6 check-off forms and lacked any explanation of their bases). psychological evaluations because they were contained in 7 8 Plaintiff contends that the Appeals Council improperly rejected the 9 opinion of one of plaintiff s purported treating psychiatrists, Dr. 10 Alfonso. The Court disagrees. 11 12 The Appeals Council received from plaintiff a two-page work 13 capacity evaluation form, dated March 14, 2007, which was completed by 14 Dr. Alfonso, plaintiff s purported treating psychiatrist. (A.R. 10, 203- 15 04.) 16 record. 17 diagnosis, but checked every box indicating marked limitations for all 18 16 out of 16 areas of mental functioning.4 The Appeals Council made this additional evidence part of the (A.R. 9.) On this check-box form, Dr. Alfonso indicated no 19 20 21 22 23 24 25 26 27 28 4 In this stand alone check-box form, Dr. Alfonso opined that plaintiff had marked limitations in her ability to: (1) remember locations and work-like procedures; (2) understand and remember very short and simple instructions; (3) carry out very short and simple instructions; (4) maintain attention and concentration for extended periods; (5) perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; (6) sustain an ordinary routine without special supervision; (7) work in coordination with or in proximity to others without being distracted by them; (8) make simple work-related decisions; (9) interact appropriately with the general public; (10) ask simple questions or request assistance; (11) accept instructions and respond appropriately to criticism from supervisors; (12) get along with co-workers or peers without distracting them or exhibiting behavioral extremes; (13) maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness; (14) respond appropriately to changes in the work setting; (15) be aware of normal hazards and take appropriate precautions; and 11 1 In its August 11, 2007 Notice of Appeals Council Action, the 2 Appeals Council discredited Dr. Alfonso s opinion and explained that it: 3 4 considered the submission from Dr. Alfonso, but cannot accord 5 it great weight. 6 shortly before the issuance of the Administrative Law Judge s 7 decision, 8 treatment notes. 9 with the marked Although Dr. Alfonso s submission is dated assessed limitations are not supported by The document consists of only a check sheet boxes, but is not accompanied by clinical 10 objective evidence or a diagnosis that might support the 11 ratings provided. 12 that you received your medication from Dr. Morales, your 13 treating physician. 14 provide a basis for changing the Administrative Law Judge s 15 decision. Moreover, in Exhibit B2E, you indicated We found that this information does not 16 17 (A.R. 4-5.) 18 19 The Appeals Council properly rejected Dr. Alfonso s opinion because 20 it was not supported by any treatment notes or objective evidence, and 21 the treatment notes in the record do not support the finding that 22 plaintiff has marked limitations in all 16 of 16 areas of mental 23 functioning, as Dr. Alfonso opined. 24 Stipulation, plaintiff failed to cite any treatment records that would 25 corroborate Dr. Alfonso s opinion. The only evidence cited by plaintiff 26 was that she saw Doctor Gil for treatment and that Dr. Gil prescribed In her portion of the Joint 27 28 (16) set realistic goals or make plans independently of others. 203-04.) 12 (A.R. 1 medications for the plaintiff. (Joint Stip. at 10; emphasis added.) 2 This evidence does nothing to support Dr. Alfonso s opinion. 3 4 Moreover, the Court is not convinced that Dr. Alfonso is properly 5 viewed as a treating physician within the meaning of the Social Security 6 regulations, as plaintiff contends. 7 treating 8 evaluation and who has or has had an ongoing treatment relationship 9 with the claimant, which means seeing the physician with a frequency 10 consistent with acceptable medical practice for the type of treatment or 11 evaluation required for the claimant s condition). 12 cursory form, Dr. Alfonso s name appears nowhere in the record, and 13 there is no apparent relationship between Dr. Alfonso and Dr. Gil. 14 fact, the record demonstrates that plaintiff saw Dr. Gil only once, on 15 February 26, 2004, in lieu of seeing her actual treating psychiatrist 16 Francisco 17 regularly treated from at least August 2003, through March 2005. 18 140-60.) 19 Alfonso, much less any evidence of an ongoing treatment relationship. source F. as Morales, someone M.D., who with See 20 C.F.R. § 416.902 (defining provides whom medical plaintiff treatment or Other than on this consistently In and (A.R. There is no evidence that plaintiff ever treated with Dr. 20 21 22 Accordingly, the Court finds no error in the Appeals Council s decision to reject Dr. Alfonso s opinion. 23 24 25 III. The ALJ Was Not Required To Address Plaintiff s 2002 And 2003 GAF Scores Assigned By A Social Worker. 26 27 28 An ALJ is not required to discuss every piece of evidence in the record. See Howard v. Barnhart, 341 F.3d 1006, 1010 (9th Cir. 2003) 13 1 ( in interpreting the evidence and developing the record, the ALJ does 2 not need to discuss every piece of evidence. ) (citation omitted). 3 Social Security Administration s regulations state that, [i]n addition 4 to evidence from the acceptable medical sources . . . we may also use 5 evidence from other sources to show the severity of your impairment(s) 6 and how it affects your ability to work ). 7 ALJ does not commit legal error by failing to incorporate a GAF score 8 into his disability assessment. 9 235, 241 (6th Cir. 2002). The 20 C.F.R. § 916.913(d). An See Howard v. Commissioner, 276 F.3d 10 11 Here, the record contains an assessment, dated August 13, 2003, 12 completed by a social worker who assigned plaintiff a GAF score of 48. 13 (A.R. 155-57.) 14 that in 2002, plaintiff had a GAF score of 45.5 In this 2003 assessment, the social worker also stated (A.R. 155.) 15 16 Plaintiff contends that the ALJ erred in failing to discuss the 17 social 18 specifically, plaintiff argues that [t]ogether these two GAF scores 19 clearly 20 functional status. worker s provide 2003 a assessment. longitudinal (Joint perspective Stip. at regarding 13.) More plaintiff s (Id.) 21 22 As an initial matter, the social worker is, according to the 23 Commissioner s regulations, an other source, whose opinion the ALJ 24 may, but is not required to, use in assessing plaintiff s disability. 25 5 26 27 28 A GAF of 41 to 50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). American Psychiatric Ass n., Diagnostic and Statistical Manual of Mental Disorders, 34 (4th ed. text rev. 2000). 14 1 See 20 C.F.R. § 916.913(d). Contrary to plaintiff s contention, 2 therefore, the ALJ was not required to consider the social worker s 2003 3 assessment. 4 5 Moreover, the 2002 and 2003 GAF scores assigned by the social 6 worker related to a previously adjudicated period or predated the 7 relevant period.6 Plaintiff has filed numerous applications prior to the 8 current one. 9 application was denied by ALJ Varni on January 18, 2005. (A.R. 17, 57-65, 207-208.) As discussed above, her prior (A.R. 57-64.) 10 Thus, plaintiff s GAF scores from 2002 and 2003 related to a previously 11 adjudicated period in which the Commissioner already found plaintiff not 12 disabled. Cf. Chavez, 844 F.2d at 693. 13 14 15 Accordingly, the ALJ was not required to discuss plaintiff s 2002 and 2003 GAF scores. 16 17 18 19 20 21 22 23 24 25 26 27 28 6 The relevant period in an SSI disability case begins when the SSI application is filed. 20 C.F.R. § 416.202 (eligibility for SSI benefits contingent upon filing application); 20 C.F.R. § 416.501 (no payment of benefits prior to filing application). The relevant period ends with the Commissioner s final decision on the SSI application. In this case, the relevant period was March 8, 2005 (the SSI application filing date), to March 29, 2007 (the date of the ALJ s unfavorable decision). Therefore, because plaintiff s 2002 and 2003 GAF scores predate the current application filing date by approximately a year and a half, they are not relevant to the period in question. Moreover, as discussed in Section I, to overcome the presumption of continuing non-disability arising from ALJ Varni s 2005 decision, plaintiff must prove changed circumstances indicating a greater disability since the date of ALJ Varni s decision, i.e., January 18, 2005, not since the date of plaintiff s alleged disability onset, i.e., May 1, 2003. Thus, neither plaintiff s 2002 nor 2003 GAF scores are relevant to proving the requisite changed circumstances to overcome the presumption of continuing non-disability that arose from ALJ Varni s 2005 decision. 15 1 2 IV. The ALJ s Hypothetical Question To the Vocational Expert Was Proper. 3 4 If a vocational expert s hypothetical does not reflect all the 5 claimant s limitations, then the expert s testimony has no evidentiary 6 value to support a finding that the claimant can perform jobs in the 7 national economy. 8 1993)(quoting DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991)). 9 In posing a hypothetical to a vocational expert, the ALJ must accurately Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 10 reflect all of the claimant s limitations. Embrey v. Bowen, 849 F.2d 11 418, 422-24 (9th Cir. 1987). 12 a hypothetical to those impairments that are supported by substantial 13 evidence in the record. Osenbrock v. Apfel, 240 F.3d 1157, 1164-65 (9th 14 Cir. 2001). However, it is proper for an ALJ to limit 15 16 17 Here, the ALJ asked the vocational expert the following hypothetical question: 18 19 I ll hypothecate a person of [plaintiff s] age, education, and 20 past work experience with a moderate limitation in the ability 21 to 22 concentrating on tasks. 23 can read and write, but only limited, that is less literacy in 24 English, although some. Could such a person find work here in 25 Southern California? carry out detailed instructions, some mild trouble This person is literate in Spanish, 26 27 (A.R. 212-13.) The vocational expert responded that plaintiff could 28 work as a hand packager, cleaner II, and dining room attendant. 16 (Id.) Plaintiff argues that the ALJ erred by failing to incorporate into 1 2 his hypothetical question to 3 limitations established by Drs. Prepetit and Alfonso, and plaintiff s 4 GAF scores. (Joint Stip. at 17.) the vocational expert the mental Plaintiff is mistaken. 5 6 As discussed above: (1) the ALJ was under no duty to develop the 7 record regarding Dr. Prepetit s 2004 opinion, which was rejected by ALJ 8 Varni in his January 18, 2005 unappealed decision; (2) the Appeals 9 Council properly rejected Dr. Alfonso s opinion; and (3) the ALJ was not 10 required to consider plaintiff s GAF scores from 2002 and 2003. 11 on the evidence in the record, therefore, there was no error in the 12 ALJ s hypothetical question to the vocational expert, which did not 13 include limitations that the ALJ properly found not to exist. The ALJ s 14 hypothetical 15 plaintiff s limitations that were supported by the medical evidence. question to the vocational expert set out Based all of 16 17 Accordingly, the ALJ s finding that jobs existed in significant 18 numbers that plaintiff could perform was based on substantial evidence 19 and is affirmed. 20 2001)( Because the ALJ included all of the limitations that he found to 21 exist, and because his findings were supported by substantial evidence, 22 the ALJ did not err in omitting the other limitations that Rollins had 23 claimed, but had failed to prove. ) See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 24 25 CONCLUSION 26 27 For the foregoing reasons, the Court finds that the Commissioner s 28 decision is supported by substantial evidence and is free from material 17 1 legal error. Neither reversal of the Commissioner s decision nor remand 2 is warranted. 3 4 Accordingly, IT IS ORDERED that Judgment shall be entered affirming 5 the decision of the Commissioner of the Social Security Administration. 6 7 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 8 copies of this Memorandum Opinion and Order and the Judgment on counsel 9 for plaintiff and for defendant. 10 11 LET JUDGMENT BE ENTERED ACCORDINGLY. 12 13 DATED: September 3, 2009 14 15 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 18
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