Leonard Norman v. Michael J. Astrue, No. 5:2009cv01747 - Document 17 (C.D. Cal. 2010)
Court Description: MEMORANDUM AND OPINION by Magistrate Judge John E. McDermott. IT IS HEREBY ORDERED that Judgment be entered affirming the decision of the Commissioner of Social Security and dismissing the case with prejudice. LET JUDGMENT BE ENTERED ACCORDINGLY. [See document for details.] (san)
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Leonard Norman v. Michael J. Astrue Doc. 17 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 LEONARD NORMAN, 12 Plaintiff, 13 v. 14 15 16 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 09-01747-JEM MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF COMMISSIONER 17 PROCEEDINGS 18 19 On September 21, 2009, Leonard Norman (“Plaintiff” or “Claimant”) filed a complaint 20 seeking review of the decision by the Commissioner of Social Security (“Commissioner”) 21 denying Plaintiff’s application for Supplemental Social Security income (“SSI”) benefits. The 22 Commissioner filed an Answer on March 30, 2010. On June 3, 2010, the parties filed a 23 Joint Stipulation (“JS”). 24 Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before the 25 Magistrate Judge. The matter is now ready for decision. After reviewing the pleadings, 26 transcripts, and administrative record (“AR”), the Court concludes that the Commissioner’s 27 decision should be affirmed and the case dismissed with prejudice. 28 Dockets.Justia.com BACKGROUND 1 2 Plaintiff is a 48 year old male who was determined to have the medically 3 determinable severe impairments of diabetes mellitus type II (insulin dependent), asthma, 4 diabetic neuropathy, coronary artery disease, and arthritis of left acromioclavicular joint 5 (status post arthroscopic surgery). (AR 14.) Plaintiff has not engaged in substantial gainful 6 activity since May 16, 2001, the alleged onset date. (AR 14.) 7 Plaintiff’s claim was denied initially on August 26, 2002, and on reconsideration on 8 July 18, 2005. (AR 12.) She filed a timely request for hearing and a video hearing was held 9 in San Bernardino, California, on March 14, 2007, before Administrative Law Judge (“ALJ”) 10 Henry M. Tai, presiding over the hearing from Honolulu, Hawaii. (AR 12.) Claimant 11 appeared and testified. (AR 12.) 12 The ALJ issued an unfavorable decision on June 25, 2007. (AR 12-21.) The ALJ 13 thoroughly reviewed the medical evidence of record and concluded that Claimant did not 14 have an impairment or combination of impairments that meets or equals any listing. (AR 15 17.) The ALJ then determined that the Claimant had the residual functional capacity 16 (“RFC”)1 to sit for six hours of an eight hour workday, stand/walk for six hours out of an eight 17 hour workday, and lift and carry 10 pounds frequently and 20 pounds occasionally. (AR 17.) 18 The ALJ did impose certain limitations: Claimant is unable to use his left upper extremity for 19 frequent overhead type of work, and is precluded from working with hazardous machinery 20 and in extreme temperatures or in environments with extreme dust, chemicals or fumes. 21 (AR 17.) 22 Claimant had no relevant past work. The ALJ, however, concluded at step five of the 23 sequential process that Plaintiff can perform other jobs in the national economy (AR 20-21) 24 and, therefore, is not disabled within the meaning of the Social Security Act. (AR 21.) 25 The Appeals Council denied review of the ALJ’s decision on July 22, 2009. (AR 4-6.) 26 1 27 28 Residual functional capacity is what one “can still do despite [his or her] limitations” and represents an assessment “based on all the relevant evidence.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). 2 DISPUTED ISSUES 1 2 3 As reflected in the Joint Stipulation, the disputed issues that Plaintiff is raising as grounds for reversal are as follows: 4 1. Whether the ALJ properly considered the consultative examiner’s opinion. 5 2. Whether the ALJ made proper credibility findings regarding Plaintiff’s pain 6 7 8 9 testimony. 3. Whether the ALJ properly evaluated the type, dosage, effectiveness, and side effects of Plaintiff’s medications in accordance with SSR 96-7p. 4. Whether the ALJ properly assessed Plaintiff’s residual functional capacity. 10 5. Whether the ALJ should have obtained the testimony of a vocational expert. 11 STANDARD OF REVIEW 12 Under 42 U.S.C. § 405(g), this Court reviews the ALJ’s decision to determine 13 whether the ALJ’s findings are supported by substantial evidence and whether the proper 14 legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). 15 Substantial evidence means “‘more than a mere scintilla’ but less than a preponderance.” 16 Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting Richardson v. Perales, 402 17 U.S. 389, 401 (1971)). 18 Substantial evidence is “such relevant evidence as a reasonable mind might accept 19 as adequate to support a conclusion.” Richardson, 402 U.S. at 401 (internal quotations and 20 citations omitted). This Court must review the record as a whole and consider adverse as 21 well as supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 22 2006). Where evidence is susceptible to more than one rational interpretation, the ALJ’s 23 decision must be upheld. Morgan v. Comm’r, 169 F.3d 595, 599 (9th Cir. 1999). “However, 24 a reviewing court must consider the entire record as a whole and may not affirm simply by 25 isolating a ‘specific quantum of supporting evidence.’” Robbins, 466 F.3d at 882 (quoting 26 Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)); see also Orn v. Astrue, 495 F.3d 27 625, 630 (9th Cir. 2007). 28 3 SEQUENTIAL EVALUATION 1 2 The Social Security Act defines disability as the “inability to engage in any substantial 3 gainful activity by reason of any medically determinable physical or mental impairment 4 which can be expected to result in death or . . . can be expected to last for a continuous 5 period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The 6 Commissioner has established a five-step sequential process to determine whether a 7 claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. 8 9 The first step is to determine whether the claimant is presently engaging in substantially gainful activity. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). If the 10 claimant is engaging in substantially gainful activity, disability benefits will be denied. 11 Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Second, the ALJ must determine whether the 12 claimant has a severe impairment or combination of impairments. Parra, 481 F.3d at 746. 13 Third, the ALJ must determine whether the impairment is listed, or equivalent to an 14 impairment listed, in Appendix I of the regulations. Id. If the impediment meets or equals 15 one of the listed impairments, the claimant is presumptively disabled. Bowen, 482 U.S. at 16 141. Fourth, the ALJ must determine whether the impairment prevents the claimant from 17 doing past relevant work. Pinto v. Massanari, 249 F.3d 840, 844-45 (9th Cir. 2001). Before 18 making the step four determination, the ALJ first must determine the claimant’s RFC. 20 19 C.F.R. § 416.920(e). The RFC must consider all of the claimant’s impairments, including 20 those that are not severe. 20 C.F.R. §§ 416.920(e), 416.945(a)(2); Social Security Ruling 21 (“SSR”) 96-8p. If the claimant cannot perform his or her past relevant work, the ALJ 22 proceeds to the fifth step and must determine whether the impairment prevents the claimant 23 from performing any other substantial gainful activity. Moore v. Apfel, 216 F.3d 864, 869 24 (9th Cir. 2000). 25 The claimant bears the burden of proving steps one through four, consistent with the 26 general rule that at all times the burden is on the claimant to establish his or her entitlement 27 to benefits. Parra, 481 F.3d at 746. Once this prima facie case is established by the 28 4 claimant, the burden shifts to the Commissioner to show that the claimant may perform 1 other gainful activity. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). If the 2 Commissioner cannot meet this burden, then the claimant is disabled and entitled to 3 benefits. Id. 4 DISCUSSION 5 A. 6 The ALJ Properly Considered The Consulting Examiner’s Opinion 7 Claimant complains that the ALJ decision did not mention or discuss the opinion of 8 consulting examiner Dr. Kenneth Boddie that there should be “no overhead use of the left 9 arm.” (AR 256.) Claimant contends that this opinion conflicts with the ALJ’s RFC, which 10 provides that Claimant is “unable to use his left upper extremity for frequent overhead type 11 of work” (AR 17). This means he can perform overhead activities so long as they are not 12 frequent. To reject the opinion of an examining doctor when it is contradicted by another 13 doctor, the ALJ must provide “specific and legitimate reasons” supported by substantial 14 evidence in the record. Lester v. Chater, 81 F.3d 821, 830-31, 834 (9th Cir. 1995). 15 The ALJ is not required to discuss every piece of evidence in the record, particularly 16 evidence that is neither significant nor probative. Howard ex rel. Wolff v. Barnhart, 341 F.3d 17 1006, 1012 (9th Cir. 2003). In this case, Dr. Boddie’s evaluation occurred on July 12, 2002. 18 (AR 250-56.) Subsequently, Claimant underwent surgery on his left shoulder in November 19 2003. (AR 164-66.) After his surgery, Claimant was seen by Dr. Conception Enriquez who 20 opined that Plaintiff was capable of occasional left extremity overhead reaching. (AR 254, 21 262, 264.) This opinion evidence is set forth in the ALJ decision. (AR 16.) An examining 22 physician’s opinion based on his or her own independent examination of the claimant 23 constitutes substantial evidence. Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 24 2001). There was nothing inappropriate about relying on the opinion of a more recent 25 examination following corrective surgery. The ALJ’s decision to disregard Dr. Boddie’s 26 opinion was based on specific and legitimate reasons supported by substantial evidence. 27 28 5 There was no error in disregarding Dr. Boddie’s outdated opinion which, given Claimant’s 1 improvement after surgery, was no longer significant or probative. 2 B. The ALJ Made Proper Credibility Findings 3 Claimant next challenges the ALJ’s rejection of Claimant’s credibility regarding his 4 subjective pain symptoms. The ALJ found that Plaintiff’s pain symptoms are inconsistent 5 with his activities of daily living and unsupported by the medical evidence of record. The 6 ALJ’s decision is supported by substantial evidence. 7 The test for deciding whether to accept a claimant’s subjective symptom testimony 8 turns on whether the claimant produces objective medical evidence of an impairment that 9 reasonably could be expected to produce the pain or other symptoms alleged. Bunnell v. 10 Sullivan, 947 F.2d 341, 346 (9th Cir. 1991); Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 11 1998); Smolen v. Chater, 80 F.3d 1273, 1281-82 esp. n. 2 (9th Cir. 1995); Cotton v. Bowen, 12 799 F.2d 1403, 1407 (9th Cir. 1986). Once the claimant produces objective medical 13 evidence of an underlying impairment, the ALJ may not discredit a claimant’s testimony on 14 the severity of symptoms merely because they are unsupported by objective medical 15 evidence. Reddick, 157 F.3d at 722; Bunnell, 947 F.2d at 343, 345. If the ALJ finds the 16 claimant’s subjective symptom testimony not credible, the ALJ must make specific findings 17 that support this conclusion. Bunnell, 947 F.2d at 345. The ALJ must set forth “findings 18 sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit 19 claimant’s testimony.” Thomas v. Barnhart, 278 F.3d 949, 958 (9th Cir. 2002); Rollins v. 20 Massanari, 261 F.3d 853, 856-57 (9th Cir. 2001); Bunnell, 947 F.2d at 345. Unless there is 21 evidence of malingering, the ALJ can reject the claimant’s testimony about the severity of a 22 claimant’s symptoms only by offering “specific, clear and convincing reasons for doing so.” 23 Reddick, 157 F.3d 722; Smolen, 80 F.3d at 1283-84. The ALJ must identify what testimony 24 is not credible and what evidence discredits the testimony. Reddick, 157 F.3d at 722; 25 Smolen, 80 F.3d at 1284. 26 In evaluating a claimant’s credibility, the ALJ may consider the nature of the 27 symptoms alleged, including aggravating factors, medication, treatment, and functional 28 6 restrictions. See Bunnell, 947 F.2d at 345-47. The ALJ also may consider numerous 1 additional factors, including the claimant's prior inconsistent statements or other inconsistent 2 testimony and physician and third-party testimony about the nature, severity, and effect of 3 the claimant’s symptoms. See Smolen, 80 F.3d at 1284 (citations omitted); see also 4 Thomas v. Barnhart, 278 F.3d at 958-59 (in assessing claimant’s credibility, ALJ can 5 consider prior conflicting statements concerning drug and/or alcohol abuse). If the claimant 6 testifies as to symptoms greater than normally would be produced by a given impairment, 7 the ALJ may disbelieve that testimony provided specific findings are made. See Carmickle 8 v. Commissioner, Social Security, 533 F.3d 1155, 1161 (9th Cir. 2008) (citing Swenson v. 9 Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). 10 Here, the ALJ found that Claimant’s medically determinable impairments reasonably 11 could be expected to produce his alleged pain symptoms but found Claimant’s statements 12 about the intensity of those symptoms “not entirely credible.” (AR 18.) The Commissioner 13 does not contend that there is evidence of malingering. He contends that the ALJ 14 presented specific, clear and convincing reasons for rejecting Plaintiff’s credibility as to his 15 alleged pain symptoms. 16 First, the ALJ noted that Claimant’s activities of daily living were inconsistent with his 17 alleged level of disability: 18 At the hearing, the claimant testified he has feet pain most of the 19 day and has to sit. However, he also testified that he is [sic] does 20 laundry, cooks and otherwise helps around the house. He stated he can 21 drive a car. He testified he is able to go grocery shopping. He stated he 22 could lift less than five pounds. He stated his pain is constant and 23 interferes with his concentration. However, he also testified he watches 24 television throughout the day and reads for one hour. In a consultative 25 examination on September 13, 2004, the claimant stated he does not 26 need help with shopping, dressing, bathing, making meals, doing 27 28 7 household chores, or walking about on his own. He stated he is able to 1 drive and use public transportation. 2 (AR 18, 189.) Claimant does not even address these specific findings. 3 Second, the ALJ found that Claimant’s descriptions of his limitations are unsupported 4 by medical evidence. This was a valid factor to consider. Rollins, 261 F.3d at 857 (“While 5 subjective pain testimony cannot be rejected on the sole ground that it is not fully 6 corroborated by objective medical evidence, the medical evidence is still a relevant factor in 7 determining the severity of Claimant’s pain and its disabling effects”). 8 The ALJ throughly reviewed the medical evidence, noting that Plaintiff’s examinations 9 were normal. (AR 18-19.) The ALJ gave significant weight to the opinions of consulting 10 examiners Dr. Boddie, Dr. Asuncion and Dr. Enriquez, all of which were supported by 11 clinical assessments and laboratory findings. (AR 19.) Most telling, the ALJ noted that each 12 of these examiners arrived at substantially similar RFCs and that no treating physician had 13 opined that Plaintiff is disabled. (AR 19-20.) Thus, the ALJ found Claimant capable of light 14 duty work. (AR 20.) 15 Again, Claimant does not address the specific findings of the ALJ. The ALJ properly 16 rejected Claimant’s pain symptoms as disabling based on specific, clear and convincing 17 reasons supported by substantial evidence. 18 C. 19 The ALJ Did Not Err In Failing To Assess Medication Side Effects 20 Plaintiff argues that the ALJ failed to consider the side effects of Plaintiff’s pain 21 medications. Specifically, Plaintiff takes Norco for shoulder pain, which causes drowsiness. 22 This argument fails because Plaintiff never alleged that the side effects of his medication are 23 disabling and there is no medical evidence that they are or would result in greater limitations 24 than those assessed in Claimant’s RFC. 25 An ALJ should consider all factors that might have a significant impact on an 26 individual’s ability to work, including side effects of medications. SSR 96-7p; Erickson v. 27 Shalala, 9 F.3d 813, 817-18 (9th Cir. 1993) (citing Varney v. Secretary of HHS, 846 F.2d 28 8 581, 585 (9th Cir. 1987) (superseded by statute on other grounds, see Bunnell, 912 F.2d at 1 1153). Under Varney, an ALJ may not reject a claimant’s testimony about the subjective 2 limitations of medication side effects without making specific findings similar to those 3 required for excess pain testimony. Varney, 846 F.2d at 585. Varney is a case in which the 4 claimant testified that her medications caused fairly severe side effects. Id. 5 Numerous cases, however, have held that an ALJ need not address medication side 6 effects where there is but passing mention of them, there is no allegation that they interfere 7 with the ability to work beyond the limitations assessed in the RFC or there is no medical 8 evidence of side effects severe enough to interfere with the ability to work. Osenbrock v. 9 Apfel, 240 F.3d 1157, 1164 (9th Cir. 2001) (“There were passing mentions of the side 10 effects of Mr. Osenbrock’s medication in some of the medical records, but there was no 11 evidence of side effects severe enough to interfere with Osenbrock’s ability to work”); 12 Gallegos v. Astrue, 2010 WL 330242, *2-*3 (C.D. Cal. 2010) (complaints of medication side 13 effects may be ignored if unsupported by objective medical evidence, particularly where 14 credibility has been rejected); Maguire v. Astrue, 2008 WL 4793668 *2 (C.D. Cal. 2008) (no 15 error in not addressing side effects where claimant did not allege that side effects interfered 16 with his ability to work and there is no indication in medical records that they did); Mitchell v. 17 Astrue, 2008 WL 4793678 *4-*5 (C.D. Cal. 2008) (failure to discuss side effects not error 18 where unsupported by objective findings). In Smith v. Astrue, 2009 WL 2973108 *4 (C.D. 19 Cal. 2009) (no error where no claim of inability to work because of side effects), the Court 20 ruled that a claimant must present specific information about side effects to the ALJ as part 21 of his or her burden to demonstrate disability. 22 If Plaintiff’s medications prevent her from working she has to say 23 so. Only at that time does the type, dosage, effectiveness and side 24 effects become relevant, so the ALJ can evaluate Plaintiff’s credibility . . . 25 Absent an individual’s statements of impairment at the outset, the ALJ 26 has no duty to inquire of the claimant’s medications. 27 28 9 Id. Osenbrock, Maguire and Mitchell were all cases holding that drowsiness from 1 medications was not significant enough to interfere with the ability to work. 2 Here, there were passing references to medication side effects but no claim that 3 those side effects prevented Claimant from working and no medical evidence that 4 medication side effects resulted in any limitations beyond those assessed in Claimant’s 5 RFC. In his Disability Report, Claimant alleged shoulder, knee and back pain, diabetes, and 6 fractured ribs. (AR 77, 79.) He also alleged that Norco and insulin make him sleepy (AR 7 80, 110) but never asserted that he was unable to work because of medication side effects. 8 There is no evidence that Claimant ever complained to any physicians about medication 9 side effects. Nor is there any objective medical evidence that would support Plaintiff’s 10 allegations. The treating and examining physicians were aware of Plaintiff’s medications yet 11 none opined that Plaintiff was unable to work or was disabled, or that limitations due to 12 medication side effects should result in a more restrictive RFC than that assessed. At the 13 hearing, when asked about side effects, Claimant stated that Norco “makes me sleep” (AR 14 599) but he did not assert that the Norco side effects rendered him unable to work. 15 Claimant’s counsel did not tender that argument to the ALJ or to the Appeals Council. It 16 was first presented to this Court in the Joint Stipulation. 17 Just as with excess pain testimony, an allegation must be grounded in the medical 18 evidence of record. Here, the record is devoid of any clinical support for limitations due to 19 medication side effects. Plaintiff has never even alleged that medication side effects make it 20 impossible for him to work. The ALJ’s convincing rejection of Plaintiff’s credibility also must 21 be considered here. 22 There was no error in not addressing Plaintiff’s medication side effects. 23 D. The ALJ Properly Assessed Plaintiff’s RFC 24 Claimant challenges the ALJ’s RFC assessment because it does not incorporate 25 Dr. Boddie’s limitation that Claimant is precluded from overhead use of the left arm. (AR 26 256.) This is the same argument presented in Issue No. 1 and it fails for the same reasons 27 previously noted. Subsequent to Dr. Boddie’s evaluation, Claimant underwent surgery on 28 10 his left shoulder. (AR 164-166.) Dr. Enriquez noted improvement and opined that Plaintiff 1 could use his left upper extremity for occasional overhead reaching. (AR 16, 264.) 2 Claimant also makes a vague argument that the ALJ’s RFC assessment does not 3 contain a proper discussion of Plaintiff’s pain symptoms. Yet the ALJ properly discredited 4 Plaintiff’s pain testimony and the various physicians, fully aware of Claimant’s pain 5 allegations, assessed Plaintiff with RFCs that do not preclude him from work. 6 The ALJ’s RFC assessment is supported by substantial evidence and free of legal 7 error. 8 E. 9 10 The ALJ Was Not Required To Consult A Vocational Expert Claimant challenges the ALJ’s step five determination because the ALJ did not 11 consult a vocational expert. This contention has no merit. The ALJ was not required to 12 consult a vocational expert. 13 The Claimant had no past relevant work. (AR 20.) The ALJ at step five of the 14 sequential process, however, found that there were jobs that exist in substantial numbers in 15 the national economy that Claimant can perform. (AR 20.) These include route aid, silver 16 wrapper, surveillance monitor, ticket seller, addressee and information clerk. (AR 20.) Most 17 of these jobs are unskilled light or sedentary work. (AR 20.) 18 The ALJ then observed that, if Claimant had the RFC to perform the full range of light 19 work, a finding of “not disabled” would be directed by the Medical Vocational Guidelines (the 20 “Grids”). The ALJ determined that the nonexertional limitations in Claimant’s RFC have 21 “little or no effect on the occupational base of unskilled light or sedentary work.” (AR 20.) In 22 particular, the ALJ found that the specific jobs listed above “do not involve operation of 23 hazardous machinery and do not present the worker with exposure to excessive heat, dusts, 24 and gases.” (AR 21.) These nonexertional limitations were specified in Claimant’s RFC. 25 (AR 17.) Consequently, the ALJ determined that Plaintiff is not disabled within the meaning 26 of the Social Security Act. (AR 21.) 27 28 11 Claimant alleges that, because he suffers from nonexertional limitations, the Grids 1 are not dispositive and the ALJ must consult a vocational expert, citing Tackett v. Apfel, 180 2 F.3d 1094, 1102 (9th Cir. 1999.) Claimant, however, fails to present a complete 3 presentation of governing law. Tackett, id. at 1101-1102, specifically reaffirmed the 4 following holding of Desrosiers v. Secretary of Health and Human Servs., 846 F.2d 573, 577 5 (9th Cir. 1988): 6 However, the fact that a non-exertional limitation is alleged does 7 not automatically preclude application of the grids. The ALJ should first 8 determine if a claimant’s non-exertional limitations significantly limit the 9 range of work permitted by his exertional limitations. 10 Id. Tackett held that the ALJ erred in that case by not consulting a vocational expert 11 because the claimant suffered from significant nonexertional limitations. Tackett, 180 F.3d 12 at 1103. 13 The Desrosiers holding continues to have vitality in this Circuit. See Landa v. Astrue, 14 283 Fed. Appx. 556, 558 (9th Cir. 2008) (claimant’s depression not a sufficiently severe 15 nonexertional limitation to require use of vocational expert); Hoopai v. Astrue, 499 F.3d 16 1071, 1076 (9th Cir. 2007) (same): Macri v. Chater, 93 F.3d 540, 545 (9th Cir. 1996) (mood 17 disorder not a significant nonexertional impairment); Ruiz v. Astrue, 2010 WL 3766335, *418 *5 (C.D. Cal. 2010) (nonexertional limitations had only minimal effect on occupational base). 19 See also Lounsburry v. Barnhart, 468 F.3d at 1115 n. 2. 20 In this case, the ALJ determined at step two that Claimant did not have any severe 21 nonexertional impairments. (AR 14.) At step four in his RFC, the ALJ did specify 22 nonexertional limitations, i.e., that Claimant is “precluded from working with hazardous 23 machinery and in extreme temperatures or in environments with extreme dust, chemicals, or 24 fumes.” (AR 17.) The ALJ, however, specifically found that these nonexertional limitations 25 had no effect on the occupational base of unskilled light or sedentary work (AR 20) and that 26 none of the jobs specified involved operation of hazardous machinery and exposure to 27 excessive heat, dust or gases. (AR 21.) Thus, under Desrosiers, the ALJ was not required 28 12 to consult a vocational expert. The nonexertional limitations in the RFC were not significant 1 enough to require the testimony of a vocational expert. 2 Claimant, however, asserts other nonexertional limitations - pain and side effects of 3 medications. The ALJ, however, properly discredited Claimant’s pain testimony and 4 numerous physicians specified an RFC that permitted work. The ALJ also properly 5 disregarded Claimant’s allegations of medication side effects as not supported by any 6 medical evidence. 7 The ALJ did not err in not consulting a vocational expert in his step five determination 8 that there are jobs in the national economy that Claimant can perform. The ALJ’s step five 9 determination is supported by substantial evidence and free of legal error. 10 ORDER 11 IT IS HEREBY ORDERED that Judgment be entered affirming the decision of the 12 Commissioner of Social Security and dismissing the case with prejudice. 13 LET JUDGMENT BE ENTERED ACCORDINGLY. 14 15 /s/ John E. McDermott JOHN E. MCDERMOTT UNITED STATES MAGISTRATE JUDGE DATED: November 23, 2010 16 17 18 19 20 21 22 23 24 25 26 27 28 13
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