Joyce Lacy v. Michael J Astrue, No. 5:2008cv01270 - Document 22 (C.D. Cal. 2009)

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 and dismissing this action with prejudice. (dhl)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 JOYCE COTTON LACY, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the Social ) Security Administration, ) ) Defendant. ) _______________________________) NO. EDCV 08-01270 SS MEMORANDUM DECISION AND ORDER 17 18 19 INTRODUCTION 20 21 Joyce Cotton Lacy ( 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 Supplemental Security Income ( SSI ). 25 consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the 26 undersigned United States Magistrate Judge. 27 Court on the parties Joint Stipulation ( Jt. Stip. ) filed on July 9, 28 2009. The parties This matter is before the For the reasons stated below, the decision of the Commissioner is AFFIRMED. 1 PROCEDURAL HISTORY 2 3 Plaintiff filed an application for disability benefits on July 13, 4 2006. 5 2006 as the onset date of her disability. (AR 83). The Commissioner 6 initially 8, and 7 reconsideration on December 28, 2006. 8 hearing before an administrative law judge ( ALJ ) on January 15, 2007. 9 (AR 43). (Administrative Record ( AR ) 82). denied benefits on September Plaintiff listed June 23, 2006 (AR 17). again upon Plaintiff requested a 10 11 On October 31, 2007, Plaintiff s hearing proceeded before ALJ 12 Charles E. Stevenson.1 13 decision on November 9, 2007. (AR 14). On November 19, 2007, Plaintiff 14 requested Appeals Council review. 15 Plaintiff s request for review on July 18, 2008. 16 24, 2008, Plaintiff filed the instant complaint. (AR 5, 23). The ALJ rendered an unfavorable (AR 4). The Appeals Council denied (AR 1). On September 17 18 FACTUAL HISTORY 19 20 A. Generally 21 Plaintiff was born on May 11, 1960. 22 (AR 83). Plaintiff s past (AR 89). Plaintiff claims 23 occupations included work in a donut shop. 24 disability stemming from [h]igh blood pressure,[]arm pain, both knees 25 [being] in pain,[ and] leg pain (AR 20). Plaintiff claims that these 26 27 1 28 Plaintiff did not attend the hearing because she was delayed in traffic. (AR 7). 2 1 disabilities limit her ability to work by causing [a]rm weakness, and 2 preventing her from lift[ing] over 10 lbs. 3 claims that she has to avoid prolonged standing or bending because 4 this causes her knees [to] hurt badly. (Id.). Plaintiff further (Id.). 5 6 B. Relevant Medical History 7 8 1. Treating Physicians 9 10 In a summary report dated August 30, 2006, Dr. Lilian Chang, M.D. 11 ( Dr. Chang ) writes that she performed an internal medicine evaluation 12 on Plaintiff. 13 Plaintiff was as follows: (AR 135-39). Dr. Chang s diagnostic impression of 14 15 This 46-years-old, African American female presents with 16 hypertension, hepatitis C, and bilateral knee pain. 17 18 Today s evaluation reveals no evidence of acute congestive 19 heart 20 unremarkable and her blood pressure is adequately controlled 21 on medication at 134/82. failure. Her cardiovascular examination is 22 23 On the abdominal examination, there is no tenderness to 24 palpation, rebound, or guarding. 25 liver cirrhosis and no jaundice. 26 27 28 3 There are no stigmata of 1 Her musculoskeletal examination is remarkable for tenderness 2 to palpation of both knees, limited range of motion, and a 3 slow gait. Her knee x-rays are currently pending. 4 5 (AR 138). 6 follows: Dr. Chang s functional assessment of Plaintiff was as 7 8 With 9 [Plaintiff] should be capable of lifting and carrying 20 the limited range of motion of the knee joints, 10 pounds occasionally and 10 pounds frequently. 11 walking can be done cumulatively up to four hours of an 12 eight-hour day. [Plaintiff] can sit for up to six hours of an 13 eight-hour day. 14 squatting, and climbing can be done occasionally. 15 limited 16 reaching, handling, grasping, or fingering. 17 limitations in terms of hearing, seeing, or speaking. in using Standing and Bending, stooping, crouching, kneeling, the extremities for pushing, She is not pulling, There are no 18 19 (AR 139). 20 21 In a radiology report dated August 30, 2006, Dr. T. Divakaran, M.D. 22 ( Dr. Divakaran ) makes the following findings regarding Plaintiffs left 23 and right knees: 24 25 The bony alignment is normal. No fractures are seen. Spurs 26 are noted mainly from the lateral articular margins of the 27 femur and tibia, tibial spine and minimally from the dorsal 28 surface of the patella. There is tibiofemoral joint space 4 1 narrowing, more prominent in the medial compartment. 2 is also calcification of the quadriceps tendinous attachment 3 to the patella. There 4 5 (AR 140). 6 knees was as follows: Dr. Divakaran s impression of Plaintiff s left and right 7 8 Mild to moderate osteoarthritis. 9 attachment. Calcification, quadriceps 10 11 (Id.). 12 13 In a visual acuity report dated August 30, 2006, a staff member of 14 the Royalty Medical Group indicates that the Plaintiff can visually 15 move about the office without any help. (AR 141). 16 17 Finally, Plaintiff visited the Arrowhead Regional Medical Center 18 emergency room on November 10, 2006 and December 18, 2006. 19 57-58). 20 appears to have been treated for back problems and hypertension. (Id.). (AR 152-53, While these medical records are largely illegible, Plaintiff 21 22 2. State Agency Physicians 23 24 Dr. M. H. Yee, M.D. ( Dr. Yee ) reviewed Plaintiff s medical 25 records for the Disability Determination Service ( DDS ) and issued a 26 Physical Residual Functional Capacity Assessment on September 6, 2006. 27 (AR 142-48). Dr. Yee wrote that both of Plaintiff s knees show mild 28 5 1 to moderate osteoarthritis, that Plaintiff is extremely obese with BMI 2 approx[imately] 41 and that [a] sedentary RFC would not be precluded. 3 (AR 146). 4 and/or carry 20 pounds, frequently lift and/or carry 10 pounds, stand 5 or walk at least 2 hours in an 8-hour workday, and sit about 6 hours in 6 an 8-hour workday. 7 and/or pull without limitations and could stand/walk for 4 hours in an 8 8-hour workday. 9 occasionally balance, stoop, kneel, crouch, crawl and occasionally climb Dr. Yee indicated that Plaintiff could occasionally lift (AR 143). Dr. Yee found that Plaintiff could push Dr. Yee further found that Plaintiff could (Id.). 10 ramps and stairs, but never climb ladders, ropes, or scaffolds. 11 144). 12 limitations, 13 environmental 14 concentrated 15 hazards. (AR 144-45). Finally, Dr. Yee wrote that Plaintiff s symptoms 16 were attributable to a medically determinable impairment. Dr. Yee determined visual limitations, limitations, exposure that to except vibration Plaintiff had communicative that and no manipulative limitations, Plaintiff even (AR should moderate or avoid exposure to (AR 145). 17 18 Dr. M. E. Bayar, M.D. ( Dr. Bayar ) reviewed Plaintiff s medical 19 records for the Disability Determination Service ( DDS ) and issued a 20 Case Analysis on December 27, 2006. 21 were consistent with the prior determination by Dr. Yee: (AR 154-55). Dr. Bayar s findings 22 23 No additional [medical records] w[ere] rec[eive]d. 24 doesn t appear to be any significant change in [Plaintiff s] 25 overall condition. Suggest reaffirming prior sedentary RFC. 26 27 There (AR 155). 28 6 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 1 2 3 To qualify for disability benefits, a claimant must demonstrate a 4 medically determinable physical or mental impairment that prevents him 5 or her from engaging in substantial gainful activity2 and that is 6 expected to result in death or to last for a continuous period of at 7 least twelve months. 8 1998) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must render the 9 claimant incapable of performing the work he or she previously performed 10 and incapable of performing any other substantial gainful employment 11 that exists in the national economy. 12 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. Tackett v. Apfel, 180 F.3d 1094, 13 14 15 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are: 16 17 (1) Is the claimant presently engaged in substantial gainful 18 activity? 19 If not, proceed to step two. If so, the claimant is found not disabled. 20 21 (2) Is the claimant s impairment 22 claimant is found not disabled. 23 severe? If not, the If so, proceed to step three. 24 25 26 27 28 2 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay or profit. 20 C.F.R. §§ 404.1520, 416.910. 7 1 (3) Does the claimant s impairment meet or equal the 2 requirements of any impairment listed at 20 C.F.R. Part 3 404, Subpart P, Appendix 1? 4 found disabled. If so, the claimant is If not, proceed to step four. 5 6 (4) Is the claimant capable of performing her past work? 7 so, the claimant is found not disabled. 8 If to step five. If not, proceed 9 10 (5) Is the claimant able to do any other work? 11 claimant is found disabled. 12 If not, the found not disabled. If so, the claimant is 13 14 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 15 949, 16 404.1520(b)-(g)(1), 416.920(b)-(g)(1). 953-54 (9th Cir. 2001) (citations omitted); 20 C.F.R. §§ 17 18 The claimant has the burden of proof at steps one through four, and 19 the Commissioner has the burden of proof at step five. Bustamante, 262 20 F.3d at 953-54. 21 of establishing an inability to perform the past work, the Commissioner 22 must show that the claimant can perform some other work that exists in 23 significant numbers in the national economy, taking into account the 24 claimant s 25 experience. 26 Commissioner may do so by the testimony of a vocational expert or by 27 reference to the Medical-Vocational Guidelines appearing in 20 C.F.R. 28 Part 404, Subpart P, Appendix 2 (commonly known as the Grids ). If, at step four, the claimant meets his or her burden residual functional capacity, age, education and Tackett, 180 F.3d at 1100; 20 C.F.R. § 416.920(g)(1). 8 work The 1 Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). 2 claimant 3 limitations, the Grids are inapplicable and the ALJ must take the 4 testimony of a vocational expert. 5 (9th Cir. 2000). has both exertional (strength-related) and When a nonexertional Moore v. Apfel, 216 F.3d 864, 869 6 7 THE ALJ S DECISION 8 9 10 At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since July 13, 2006. (AR 19). 11 12 13 At step two, the ALJ found that Plaintiff s severe impairments were obesity, bilateral knee degeneration, [and] hypertension. (AR 19). 14 15 At step three, the ALJ concluded that Plaintiff d[id] not have an 16 impairment or combination of impairments that meets or medically equals 17 one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 18 1. (AR 19). 19 20 At step four, the ALJ found that Plaintiff ha[d] no past relevant 21 work. (AR 21). The ALJ found that Plaintiff had the residual 22 functional capacity ( RFC ) to perform light work except she can lift 23 and carry 20 pounds occasionally, 10 pounds frequently. 24 ALJ further found that Plaintiff could stand and walk 2 hours in an 8 25 hour day, sit without restrictions, . . . occasionally climb, balance, 26 stoop, kneel, [and] crouch[,] but could not climb ladders or work near 27 unprotected heights or hazardous equipment. 28 9 (Id.). (AR 19). The 1 The vocational expert ( VE ) testified that Plaintiff s past work 2 included being a fast food worker, donut shop. 3 questioned the VE about Plaintiff s earnings as a fast food worker and 4 speculated about whether this work qualified as substantial gainful 5 activity. (Id.). Based on Plaintiff s RFC, the ALJ posed the following 6 hypothetical to the vocational expert ( VE ): (AR 9). The ALJ 7 8 [A]ssume the following; lifting and carrying light work level 9 20 pounds occasionally, 10 pounds frequently, standing and 10 walking two out of eight in the day, sitting six hours a day 11 in a day [sic], occasional climbing, balancing, stooping, 12 kneeling, crouching crawling, no ladders, no vibrating tools, 13 no unprotected heights, no hazardous equipment. 14 done? Past work 15 16 (AR 10). The VE responded, No, Your Honor. (Id.). 17 18 The ALJ ultimately concluded that Plaintiff s prior work as a fast 19 food worker did not qualify as substantial gainful activity. 20 (AR 21) ( The [Plaintiff] has no past relevant work. ). 21 22 At step five, the ALJ found that there are jobs that exist in 23 significant numbers in the national economy that the [Plaintiff] can 24 perform. 25 be done within [the above] limitations. (AR 22). The ALJ asked the VE whether [o]ther work [could] 26 27 28 10 The VE responded as follows: 1 I believe that comes 2 sedentary work, Your Honor. 3 occupational titles. closer to the full range of Of which there are 137 different And some examples 4 5 . . . . 6 7 reception information clerks, telephone quotation 8 clerks. 237.367-046. Unskilled, SVP 2, sedentary in nature. 9 4,800 in the local economy. This is the Greater Los Angeles 10 and Orange counties. 11 general office types jobs, this is a document preparer. 12 249.587-018. 13 63,000 nationally. 98,000 nationally. Unskilled, sedentary, SVP 2. The number of DOT 3,200 locally. 14 15 (AR 10). 16 17 Based on the above RFC and the testimony of the VE, the ALJ 18 concluded that Plaintiff could work as a telephone quotation clerk and 19 as a general office worker. 20 that a finding of not disabled [was] . . . appropriate. (AR 22). Accordingly, the ALJ determined (Id.). 21 STANDARD OF REVIEW 22 23 24 Under 42 U.S.C. § 405(g), a district court may review the 25 Commissioner s decision to deny benefits. 26 Commissioner s decision when the ALJ s findings are based on legal error 27 or are not supported by substantial evidence in the record as a whole. 28 11 The court may set aside the 1 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 2 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 3 4 Substantial evidence is more than a scintilla, but less than a 5 preponderance. Reddick, 157 F.3d at 720. 6 which a reasonable person might accept as adequate to support a 7 conclusion. 8 a finding, the court must consider the record as a whole, weighing 9 both Id. evidence It is relevant evidence To determine whether substantial evidence supports that supports and evidence that detracts from the 10 [Commissioner s] conclusion. Aukland, 257 F.3d at 1035 (quoting Penny 11 v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 12 reasonably support either affirming or reversing that conclusion, the 13 court may not substitute its judgment for that of the Commissioner. 14 Reddick, 157 F.3d at 720-21. If the evidence can 15 16 DISCUSSION 17 18 A. The ALJ Satisfied His Duty To Develop The Record 19 20 Plaintiff asserts that the ALJ failed to properly develop the 21 record by not allow[ing] Planitiff to testify at her hearing. 22 Stip. at 4). (Jt. This Court disagrees. 23 24 The ALJ has an affirmative duty to fully and fairly develop the 25 record in a social security case. 26 1150 (9th Cir. 2001). 27 unrepresented or is mentally ill and thus unable to protect her own 28 interests. Id. Tonapetyan v. Halter, 242 F.3d 1144, The duty is heightened when the claimant is However, only ambiguous evidence, or the ALJ s own 12 1 finding that the record is inadequate to allow for proper evaluation of 2 the evidence, triggers the ALJ s duty to conduct an appropriate inquiry 3 or gather additional information. Id.; see also Thomas v. Barnhart, 278 4 F.3d 947, 958 (9th Cir. 2002) (duty not triggered where the ALJ did not 5 make a finding that the medical report was inadequate to make a 6 disability determination). 7 8 9 In this case, the hearing before the ALJ commenced at 9:26 a.m. on October 31, 2007, although it was scheduled for 9:00 a.m. (AR 7, 71). 10 The ALJ noted that Plaintiff s counsel was present at the hearing, but 11 that Plaintiff was not. 12 Plaintiff was delayed in traffic. (Id.). Plaintiff s counsel further 13 stated that he called Plaintiff about a half hour ago or a little bit 14 over a half hour ago, and that [s]he said she was about a half hour 15 away. 16 decided to commence the hearing without her. (Id.). The ALJ explained, 17 however, that [i]f [Plaintiff] shows up, she can continue, but that 18 [i]f she doesn t show up by the time we re done, well then she can show 19 cause as to why she wasn t here. (AR 7-8). 20 responded, Very good. Plaintiff never arrived at the 21 hearing. (Id.). (Id.). Plaintiff s counsel explained that The ALJ noted that Plaintiff was a half hour late and (AR 8). Plaintiff s counsel 22 23 The ALJ then proceeded with the hearing and gave Plaintiff s 24 counsel numerous opportunities to represent Plaintiff s interests. 25 First, the ALJ asked Plaintiff s counsel if he had any objections to the 26 exhibits. 27 (Id.). 28 additional exhibits. (AR 8). Plaintiff s counsel responded in the negative. Second, the ALJ asked Plaintiff s counsel if he had any (Id.) ( Anything pending?). 13 Plaintiff s counsel 1 responded in the negative. 2 counsel 3 Plaintiff s counsel responded in the negative. 4 proceeded to ask questions of the vocational expert. if he wanted to (Id.). give an Third, the ALJ asked Plaintiff s opening statement. (AR 9). (AR 8-9). The ALJ then 5 6 The ALJ asked Plaintiff s counsel if wanted to question the VE. 7 (AR 10). 8 Finally, the ALJ asked Plaintiff s counsel if there was [a]nything 9 else. (Id.). Plaintiff s counsel responded in the negative. (AR 11). 10 Plaintiff s counsel responded in the negative. The ALJ then closed the hearing. (Id.). (Id.). 11 12 Plaintiff argues that the ALJ should not have conducted the hearing 13 in Plaintiff s absence because there is no order to show cause in order 14 for the Plaintiff to justify why she did not attend her hearing. 15 Stip. at 3) ( [T]he record is void of any order to show cause. ). 16 Contrary to Plaintiff s claim, however, the ALJ issued a Notice to Show 17 Cause for Failure to Appear ( Notice to Show Cause ) on October 31, 18 2007, which was mailed to Plaintiff s address of record as well as her 19 counsel. 20 Plaintiff that she had the opportunity to explain her absence and that 21 if she could show good cause, the ALJ would schedule a new hearing. 22 (AR 71). 23 had until November 12, 2007 to provide a written statement. 24 Plaintiff failed to file any response to the Notice to Show Cause. (AR 71-72). (Jt. The Notice to Show Cause specifically informed The Notice to Show Cause further informed Plaintiff that she (Id.). 25 26 In sum, the ALJ satisfied his duty to develop the record by 27 delaying the start of the hearing and offering Plaintiff s counsel an 28 opportunity to challenge the evidence and question the VE. Furthermore, 14 1 the ALJ issued the Notice to Show Cause, which allowed Plaintiff the 2 opportunity to explain her absence from the hearing and request a new 3 hearing. 4 opportunity. (AR 71-72). Plaintiff chose not to avail herself of this No remand is necessary. 5 6 B. The ALJ Properly Considered The Plaintiff s Pain Questionnaire 7 8 9 10 Plaintiff asserts that the ALJ failed to properly consider her statements regarding pain in the Pain Questionnaire. (Jt. Stip. at 6). This Court disagrees. 11 12 To determine whether a claimant s testimony regarding subjective 13 pain or symptoms is credible, an ALJ must engage in a two-step analysis. 14 First, the ALJ must determine whether the claimant has presented 15 objective medical evidence of an underlying impairment which could 16 reasonably be expected to produce the pain or other symptoms alleged. 17 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (citing 18 Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)) 19 (internal quotation marks omitted). 20 show that her impairment could reasonably be expected to cause the 21 severity of the symptom she has alleged; she need only show that it 22 could reasonably have caused some degree of the symptom. Id. (quoting 23 Smolen, 80 F.3d at 1282). 24 test, and there is no evidence of malingering, the ALJ can reject the 25 claimant s testimony about the severity of her symptoms only by offering 26 specific, clear and convincing reasons for doing so. 27 at 1281. The claimant, however, need not Second, if the claimant meets this first 28 15 Smolen, 80 F.3d 1 Here, Plaintiff wrote in the Pain Questionnaire that she 2 experiences [s]harp [and] throbbing pain every day in her [k]nees 3 [and] legs. (AR 108). Plaintiff explained that [b]eing on [her] feet 4 causes sharp pains in [her] knees and that the pain go[es] to [her] 5 [l]ower [b]ack. (Id.). 6 7 8 In his decision, however, the ALJ provided the following clear and convincing reasons to reject Plaintiff s statements regarding pain: 9 10 [Aside from Dr. Chang s internal medicine evaluation in 11 August 12 significant 13 determinable impairment or impairment related limitations. 14 Nonetheless, she maintains she is unable to work due to her 15 alleged subjective symptoms. 16 the [Plaintiff] has not established a medically determinable 17 impairment which would reasonably be expected to produce such 18 limitations. 19 evidence of end-organ damage or other complications. 20 regards [sic] to her knees, the [Plaintiff] is not described 21 as a surgical candidate, nor is there any evidence she has 22 required extended periods of hospital confinement, emergency 23 room treatment, use of a TENS unit, participation in a pain 24 control clinic, or other extensive or significant forms of 25 treatment 26 [Plaintiff] 27 assistive devices required. 28 a of chronic 2006,] [t]he objective [Plaintiff] medical presented evidence of a no other medically However, the undersigned notes Her hypertension is well controlled without commonly has and no prescribed for abnormalities intense of gait, With pain. The nor any are While the [Plaintiff] asserted debilitating 16 pain syndrome of extended 1 duration, it is noted she exhibited no evidence of diffuse 2 atrophy or muscle wasting, common indicators of chronic pain. 3 There is no credible evidence of regular usage of strong 4 medication to alleviate symptoms that would significantly 5 impair the [Plaintiff s] ability to do basic work activities. 6 There 7 significant 8 concludes the [Plaintiff s] allegations, although appearing 9 sincere, was no evidence side are not in effects. fully the medical record Accordingly, credible the regarding of any undersigned the extent, 10 intensity and duration of the alleged subjective symptoms and 11 functional limitations and restrictions. 12 13 (AR 21). 14 15 Plaintiff acknowledges that the ALJ offered much discussion of 16 [her] statements and testimony, but argues that he did not properly 17 consider [her] pain testimony. 18 forth above, the ALJ determined that Plaintiff had failed to present 19 significant objective medical evidence of a medically determinable 20 impairment or impairment related limitations. (Jt. Stip. at 7). However, as set (AR 21). 21 22 In addition, the ALJ provided several clear and convincing reasons 23 for rejecting Plaintiff s pain allegations. 24 Plaintiff s hypertension is well controlled without evidence of end- 25 organ damage or other complications. 26 concluded 27 unremarkable and [that] her blood pressure [wa]s adequately controlled 28 on medication. that Plaintiff s (AR 138). First, the ALJ noted that (Id.). cardiovascular Indeed, Dr. Chang examination [wa]s Second, the ALJ found that there was no 17 1 evidence of extensive or significant forms of treatment commonly 2 prescribed for intense pain. 3 held that evidence of conservative treatment is sufficient to discount 4 a claimant s testimony regarding severity of an impairment. 5 Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (internal quotation marks 6 omitted). Third, the ALJ found that [t]here [wa]s no credible evidence 7 of regular usage of strong medication to alleviate symptoms that would 8 significantly impair 9 activities. (AR 21). the (AR 21). Indeed, the Ninth Circuit has [Plaintiff s] ability to do Parra v. basic work Indeed, Dr. Chang wrote in her August 30, 2006 10 summary report that Plaintiff reported alleviation of the knee pain by 11 resting or taking Indocin. (AR 135); see also Bunnell, 947 F.2d at 346 12 (ALJ may consider type, dosage, and effectiveness of pain medication to 13 determine credibility of claimant s allegations). 14 alleged pain was alleviated by medication, this was a convincing reason 15 to discount her statements regarding pain. As Plaintiff s 16 17 The Court notes that Dr. Chang specifically took into account the 18 Plaintiff s limited range of motion of the knee joints in formulating 19 her functional assessment. 20 that Plaintiff could stand and walk up to four hours of an eight-hour 21 day. 22 determining that Plaintiff could stand and walk only 2 hours in an 8 23 hour day. 24 testimony about her knee pain and appropriated credited this testimony 25 in his more limited RFC. (Id.). (AR 139). Dr. Chang ultimately concluded The ALJ, however, crafted an even more limited RFC, (AR 19). Thus, the ALJ gave some credit to Plaintiff s 26 27 In sum, the ALJ appropriately considered the Plaintiff s pain 28 testimony by determining that Plaintiff had not presented objective 18 1 medical evidence of an underlying impairment which could reasonably be 2 expected to produce the pain alleged. 3 multiple clear and convincing reasons to reject Plaintiff s allegations 4 regarding her level of pain. Additionally, the ALJ provided Thus, no remand is necessary. 5 6 C. 7 The Hypothetical Contained All Limitations Supported By Substantial Evidence 8 9 Plaintiff asserts that the ALJ did not pose a full hypothetical to 10 the VE because the hypothetical did not contain limitations based on 11 Plaintiff s pain. (Jt. Stip. at 20-22). This Court disagrees. 12 As set forth above, see supra Part B, the ALJ appropriately 13 14 considered Plaintiff s pain testimony. 15 ( An 16 assumptions 17 reflects each of the claimant s limitations. ). 18 subjective claims about her knee pain were contradicted by the objective 19 medical evidence, the ALJ was not required to include limitations based 20 on knee pain in the hypothetical. 21 plaintiff] did not present any evidence that he suffers from sleep 22 apnea, diabetes, organic brain disorder, or hepatitis in support of his 23 disability claim, the ALJ did not err in failing to include these 24 alleged impairments in the hypothetical question posed to the VE. ). ALJ must propose a See Osenbrock, 240 F.3d at 1163 hypothetical that is based on medical supported by substantial evidence in the record that Because Plaintiff s See id. at 1164 ( Because [the 25 26 Nevertheless, the ALJ s hypothetical incorporated limitations based 27 on Plaintiff s knee pain by stating that the hypothetical worker could 28 only stand and walk two out of eight [hours] in the day. 19 (AR 10). 1 As explained above, see supra Part B, Dr. Chang specifically took into 2 account the Plaintiff s limited range of motion of the knee joints and 3 concluded that Plaintiff could stand and walk up to four hours of an 4 eight-hour day. (AR 139). Thus, the ALJ s hypothetical contained even 5 greater limitations than found by Dr. Chang. 6 7 In sum, the Court finds that the ALJ s hypothetical contained all 8 limitation supported by substantial evidence. See Rollins v. Massanari, 9 261 F.3d 853, 858 (9th Cir. 2001) ( Because the ALJ included all of the 10 limitations that he found to exist, and because his findings were 11 supported by substantial evidence, the ALJ did not err in omitting the 12 other limitations that [the plaintiff] had claimed, but had failed to 13 prove. ). 14 \\ 15 \\ 16 \\ 17 \\ 18 \\ 19 \\ 20 \\ 21 \\ 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ Thus, no remand is necessary. 27 28 20 CONCLUSION 1 2 3 Consistent with the foregoing, and pursuant to sentence four of 42 4 U.S.C. § 405(g),3 IT IS ORDERED that judgment be entered AFFIRMING the 5 decision of the Commissioner and dismissing this action with prejudice. 6 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this 7 Order and the Judgment on counsel for both parties. 8 9 DATED: August 10, 2009. 10 /S/ 11 _________________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 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. 21

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