Kirk Dwayne Houston v. Michael J. Astrue, No. 5:2012cv00505 - Document 13 (C.D. Cal. 2012)

Court Description: MEMORANDUM AND OPINION AND ORDER by Magistrate Judge Oswald Parada: IT IS THEREFORE ORDERED, that judgment be entered affirming the decision of the Commissioner of Social Security and dismissing this action with prejudice. (am)

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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 KIRK DWAYNE HOUSTON, ) Case No. EDCV 12-505-OP ) Plaintiff, ) v. ) MEMORANDUM OPINION; ORDER ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ) 17 The Court1 now rules as follows with respect to the disputed issues listed in 18 the Joint Stipulation ( JS ).2 19 / / / 20 / / / 21 / / / 22 23 1 24 25 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the United States Magistrate Judge in the current action. (See ECF Nos. 5, 11.) 2 As the Court stated in its Case Management Order, the decision in this case is made on the basis of the pleadings, the Administrative Record, and the 27 Joint Stipulation filed by the parties. In accordance with Rule 12(c) of the Federal 28 Rules of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g). (ECF No. 4 at 3.) 26 1 1 I. 2 DISPUTED ISSUES 3 As reflected in the Joint Stipulation, the disputed issues raised by Plaintiff 4 as the grounds for reversal and/or remand are as follows: 5 (1) Whether the Administrative Law Judge ( ALJ ) properly determined 6 at Step 2 that Plaintiff s somatoform disorder was not a severe 7 medically determinable impairment; 8 (2) Whether the ALJ properly considered Plaintiff s credibility; 9 (3) Whether the ALJ properly considered the opinions of Dr. Huang, 10 11 Plaintiff s treating physician; (4) Whether the ALJ erred by not accounting for Plaintiff s gait 12 disturbance and fine manipulation limitation in assessing his residual 13 functional capacity ( RFC ); and 14 (5) Whether the ALJ erred by not consulting a medical expert at the time 15 of the hearing, especially considering there is a date last insured in the 16 past. 17 (JS at 2-3.) 18 II. 19 STANDARD OF REVIEW 20 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s decision 21 to determine whether the Commissioner s findings are supported by substantial 22 evidence and whether the proper legal standards were applied. DeLorme v. 23 Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means more 24 than a mere scintilla but less than a preponderance. Richardson v. Perales, 402 25 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Desrosiers v. Sec y of 26 Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial 27 evidence is such relevant evidence as a reasonable mind might accept as adequate 28 to support a conclusion. Richardson, 402 U.S. at 401 (citation omitted). The 2 1 Court must review the record as a whole and consider adverse as well as 2 supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). 3 Where evidence is susceptible of more than one rational interpretation, the 4 Commissioner s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 5 1452 (9th Cir. 1984). 6 III. 7 DISCUSSION 8 A. The ALJ s Findings. 9 The ALJ found that Plaintiff has the severe impairments of alcohol induced 10 mood disorder; alcohol abuse; depression; anxiety; post ankle fracture; 11 progressive ataxia; and degenerative disc disease. (Administrative Record ( AR ) 12 at 14.) The ALJ found Plaintiff had the RFC to perform a range of light work with 13 the following limitations: lift and/or carry twenty pounds occasionally and ten 14 pounds frequently; stand and/or walk for six hours out of an eight-hour workday 15 with regular breaks; sit for six hours out of an eight-hour workday with regular 16 breaks; restricted from working at heights or balancing; can occasionally climb 17 stairs; prohibited from climbing ladders or ramps; no work around moving or 18 dangerous machinery, fire, or water; and limited to simple and routine tasks. (Id. 19 at 16.) 20 Relying on the testimony of a vocational expert ( VE ), the ALJ concluded 21 that Plaintiff is capable of performing such occupations as electronic worker 22 (Dictionary of Occupational Titles ( DOT ) 726.687-010); packing machine 23 operator (DOT 920.685-078); and house cleaner (DOT 323.687-014). (AR at 24.) 24 B. Substantial Evidence Supports the ALJ s Finding That Plaintiff s 25 Alleged Somatoform Disorder Is Not a Medically Determinable 26 Impairment. 27 The ALJ found that Plaintiff s somatoform disorder did not amount to a 28 medically determinable impairment. The ALJ explained: 3 1 The undersigned finds tinnitus and somatoform disorder are not 2 medically determinable impairments due to a lack of objective evidence. 3 A medically determinable impairment may not be established solely on 4 the basis of symptoms alone, or on the claimant s allegations regarding 5 symptomatology. There must be evidence from an acceptable medical 6 source in order to establish the existence of a medically determinable 7 impairment. The claimant s allegations of functional limitations caused 8 by tinnitus and somatoform disorder are unsupported. Specifically, the 9 undersigned finds the alleged impairments were not medically 10 determinable because the medical evidence fails to document any 11 substantial complaints, diagnoses, or treatment related to these 12 impairments. 13 (Id. at 14-15 (citations omitted).) 14 Under applicable regulations, a medically determinable impairment is one 15 that results from anatomical, physiological, or psychological abnormalities which 16 can be shown by medically acceptable clinical and laboratory diagnostic 17 techniques. 20 C.F.R. §§ 404.1508, 416.908, 404.1520a(b)(1), 416.920a(b)(1). 18 To find that Plaintiff s complaints met or equaled Listing 12.07, the mental 19 disability of somatoform disorder, requires the following: 20 12.07 Somatoform disorders: Physical symptoms for which 21 there are no demonstrable organic findings or known physiological 22 mechanisms. 23 24 The required level of severity for these disorders is met when the requirements in both A and B are satisfied. 25 A. Medically documented by evidence of one of the following: 26 .... 27 2. Persistent nonorganic disturbance of one of the following: 28 .... 4 1 2 e. Movement and its control (e.g., coordination disturbance, psychogenic seizures, akinesia, dyskinesia; 3 4 .... AND 5 B. Resulting in at least two of the following: 6 1. Marked restriction of activities of daily living; or 7 2. Marked difficulties in maintaining social functioning; or 8 3. Marked difficulties in maintaining concentration, 9 10 11 persistence, or pace; or 4. Repeated episodes of decompensation, each of extended duration. 12 Id. pt. 404, subpt. P, app. 1 § 12.07. 13 Plaintiff contends that the ALJ circumvented her responsibility to fully 14 evaluate this Listing by initially ruling at step-two that the somatoform disorder 15 was not a medically determinable impairment due to lack of objective evidence. 16 (JS at 3 (citing AR at 14.) Plaintiff claims the record was replete with 17 documentation that he had physical symptoms for which there were no 18 demonstrable organic findings or known physiological mechanisms. (Id.) For 19 instance, he notes that his treating physician, Dr. Mon-Quen Huang, diagnosed 20 Plaintiff with a postural tremor, dysmetria, ataxia [with] unclear etiology, based 21 on an MRI that shed no light on Plaintiff s involuntary hand tremors and problems 22 walking. (Id. (citing AR at 244, 246, 263).) Plaintiff claims, therefore, that 23 substantial evidence supported a somatoform disorder. (Id. at 4.) He also 24 contends that once the ALJ found at step two that Plaintiff had the severe 25 impairment of progressive ataxia, there was sufficient evidence to pass the de 26 minimis threshold of step two, and the ALJ was then required to evaluate 27 whether the progressive ataxia met or equaled Listing 12.07. (Id. at 4-5 (citation 28 omitted).) Finally, Plaintiff contends that if the ALJ was unclear whether Dr. 5 1 Huang s diagnosis of postural tremor, dysmetria, ataxia [with] unclear etiology 2 was an adequate diagnosis of somatoform disorder,3 the ALJ had an affirmative 3 duty to supplement the medical record at step two and did not do so. (Id. at 5.) 4 Plaintiff s argument fails because despite the ALJ s determination that the 5 alleged somatoform disorder was not a medically determinable impairment, the 6 ALJ nevertheless did fully consider whether Plaintiff s mental impairments singly 7 and in combination, met or medically equaled the criteria of Listing 12.07. (AR at 8 15.) The ALJ found that the part B criteria of Listing 12.07 (as well as of Listings 9 12.04, 12.06, and 12.09) were not met because Plaintiff s mental impairment 10 caused only mild restriction of activities of daily living, mild difficulties in 11 maintaining social functioning, moderate difficulties in maintaining concentration, 12 persistence, or pace, and no episodes of decompensation of extended duration.4 13 (Id.) 14 Accordingly, even assuming the ALJ erred at step two in finding the alleged 15 somatoform disorder was not a medically determinable impairment, which the 16 Court does not find, any error was harmless because the ALJ properly found at 17 step three that the paragraph B criteria of Listing 12.07 was not met. Carmickle v. 18 Comm r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (harmless-error 19 rule applies to review of administrative decisions regarding disability); Harrison v. 20 Astrue, 2011 WL 2619504, at *7 (D. Or. July 1, 2011) (citing Lewis v. Astrue, 21 498 F.3d 909, 911 (9th Cir. 2007) ( Omissions at step two are harmless if the 22 23 3 The Court notes that somatoform disorder is a mental disability, characterized by physical symptoms; thus, the diagnosis of ataxia of unknown 25 etiology would not necessarily imply a mental disability absent objective medical 26 evidence of record from an acceptable medical source establishing somatoform disorder. As noted by the ALJ (AR at 14-15), such evidence is missing from 27 Plaintiff s medical record. 28 4 Plaintiff does not challenge this finding. 24 6 1 ALJ s subsequent evaluation considered the effect of the impairment omitted at 2 step two. ) 3 C. The ALJ Properly Considered Plaintiff s Credibility. 4 Plaintiff contends the ALJ s credibility finding is not supported by 5 substantial evidence, and her reasons for discounting his credibility were not clear 6 and convincing. (JS at 9-11, 14-15.) 7 An ALJ s assessment of pain severity and claimant credibility is entitled to 8 great weight. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. 9 Heckler, 779 F.2d 528, 531 (9th Cir. 1986). When, as here, an ALJ s disbelief of a 10 claimant s testimony is a critical factor in a decision to deny benefits, the ALJ 11 must make explicit credibility findings. Rashad v. Sullivan, 903 F.2d 1229, 1231 12 (9th Cir. 1990); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981); see also 13 Albalos v. Sullivan, 907 F.2d 871, 874 (9th Cir. 1990) (an implicit finding that 14 claimant was not credible is insufficient). 15 Once a claimant has presented medical evidence of an underlying 16 impairment which could reasonably be expected to cause the symptoms alleged, 17 the ALJ may only discredit the claimant s testimony regarding subjective pain by 18 providing specific, clear, and convincing reasons for doing so. Lingenfelter v. 19 Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). An ALJ s credibility finding 20 must be properly supported by the record and sufficiently specific to ensure a 21 reviewing court that the ALJ did not arbitrarily reject a claimant s subjective 22 testimony. Bunnell v. Sullivan, 947 F.2d 341, 345-47 (9th Cir. 1991). An ALJ 23 may properly consider testimony from physicians . . . concerning the nature, 24 severity, and effect of the symptoms of which [claimant] complains, and may 25 properly rely on inconsistencies between claimant s testimony and claimant s 26 conduct and daily activities. See, e.g., Thomas v. Barnhart, 278 F.3d 947, 958-59 27 (9th Cir. 2002) (citation omitted). An ALJ also may consider [t]he nature, 28 location, onset, duration, frequency, radiation, and intensity of any pain or other 7 1 symptoms; [p]recipitating and aggravating factors ; [t]ype, dosage, 2 effectiveness, and adverse side-effects of any medication ; [t]reatment, other than 3 medication ; [f]unctional restrictions ; [t]he claimant s daily activities ; 4 unexplained, or inadequately explained, failure to seek treatment or follow a 5 prescribed course of treatment ; and ordinary techniques of credibility 6 evaluation, in assessing the credibility of the allegedly disabling subjective 7 symptoms. Bunnell, 947 F.2d at 346-47; see also Soc. Sec. Ruling 96-7p; 20 8 C.F.R. 404.1529 (2005); Morgan v. Comm r of Soc. Sec. Admin., 169 F.3d 595, 9 600 (9th Cir. 1999) (ALJ may properly rely on plaintiff s daily activities, and on 10 conflict between claimant s testimony of subjective complaints and objective 11 medical evidence in the record); Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 12 1998) (ALJ may properly rely on weak objective support, lack of treatment, daily 13 activities inconsistent with total disability, and helpful medication); Johnson v. 14 Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995) (ALJ may properly rely on the fact 15 that only conservative treatment had been prescribed); Orteza v. Shalala, 50 F.3d 16 748, 750 (9th Cir. 1995) (ALJ may properly rely on claimant s daily activities and 17 the lack of side effects from prescribed medication). 18 Here, the ALJ provided clear and convincing reasons for finding Plaintiff s 19 subjective complaints of impairment less than credible. 20 The ALJ cited Plaintiff s ability to engage in activities of daily living that 21 require the same physical and mental abilities as those necessary to obtain and 22 maintain employment. (AR at 17-18.) The ALJ noted that Plaintiff s ability to 23 perform such activities as making his bed, cleaning, watching television, taking 24 care of his roommate s daughter, visiting with friends, performing personal care 25 tasks, shopping in stores with an electric cart, playing board games, and attending 26 birthday parties, is inconsistent with disability. (Id.) Plaintiff s roommate 27 confirmed that Plaintiff could normally perform most activities of daily living. 28 (Id. at 17 (citation omitted).) Daily activities may be grounds for an adverse 8 1 credibility finding if a claimant is able to spend a substantial part of his day 2 engaged in pursuits involving the performance of physical functions that are 3 transferable to a work setting. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989); 4 see also Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008) (ALJ 5 sufficiently explained his reasons for discrediting claimant s testimony when he 6 said that the record reflects that the claimant has normal activities of daily living, 7 including cooking, house cleaning, [and] doing laundry ); Burch v. Barnhart, 400 8 F.3d 676, at 681 (9th Cir. 2005) (finding adverse credibility based on daily 9 activities may be proper if a claimant engaged in numerous daily activities 10 involving skills that could be transferred to the workplace ). Thus, it was not 11 error for the ALJ to conclude that Plaintiff s ability to engage in daily activities 12 such as those he described in his adult function report, in his testimony at the 13 hearing, and in his roommate s report, undermines his credibility as to functional 14 limitations. 15 Furthermore, the ALJ did not rely on this factor alone. She also noted that 16 Plaintiff s testimony and statements of record had been inconsistent, specifically 17 with regard to his alcohol consumption and drug abuse, diminishing his 18 credibility. (AR at 18 (citations omitted).) For instance, Plaintiff testified that he 19 had smoked marijuana in the past but denied to the psychiatric consultative 20 examiner that he used illicit drugs; on December 13, 2009, he denied alcohol 21 consumption, but on December 12, 2009, a treating nurse smelled alcohol on his 22 breath. (Id. (citations omitted).) The ALJ also observed that Plaintiff s receipt of 23 unemployment compensation benefits is facially inconsistent with his allegation of 24 disability. (Id.) This is because in order to receive unemployment benefits, he 25 would have had to certify that he was physically and mentally able, willing, and 26 available to work. (Id.) An ALJ may properly rely on inconsistencies in the 27 claimant s testimony to discredit his testimony. Johnson, 60 F.3d at 1434; 28 Thomas, 278 F.3d at 958-59 (ALJ may properly rely on inconsistencies between 9 1 claimant s testimony and claimant s conduct and daily activities). 2 The ALJ also diminished Plaintiff s credibility based upon her observations 3 of him at the hearing, finding that his ability to stand during the hearing without 4 the assistance of his walker, undermined his testimony that he used his walker 5 twenty-four, seven since April 2010. (AR at 18.) She also observed that 6 Plaintiff only shook during the hearing when he was testifying but stopped 7 shaking when he sat in his chair. (Id.) An ALJ may properly rely on her own 8 observations at the administrative hearing as one factor in support of an adverse 9 credibility determination. Drouin v. Sullivan, 966 F.2d 1255, 1259 (9th Cir. 10 1992). 11 Finally, to the extent the ALJ relied on the fact that the objective medical 12 evidence does not support Plaintiff s alleged severity of symptoms, although a 13 lack of objective medical evidence may not be the sole reason for discounting a 14 plaintiff s credibility, it is nonetheless a legitimate and relevant factor to be 15 considered. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Here, the 16 medical records indicated that Plaintiff received routine, conservative treatment 17 for his complaints of mood disorder, alcohol abuse, depression, anxiety, ankle 18 fracture, ataxia, and degenerative disc disease. This is a valid reason for 19 discounting credibility. Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) 20 (ALJ may discount claimant s testimony based on conservative treatment); 21 Tidwell, 161 F.3d at 602 (ALJ may properly rely on lack of treatment and helpful 22 medication); Johnson, 60 F.3d at 1432 (ALJ may properly rely on the fact that 23 only conservative treatment has been prescribed). 24 Based on the foregoing, the Court finds that the ALJ stated clear and 25 convincing reasons, supported by substantial evidence in the record, for rejecting 26 Plaintiff s credibility and, therefore, did not arbitrarily discredit his subjective 27 testimony. Thus, relief is not warranted on this claim. 28 / / / 10 1 D. The ALJ Properly Considered the Opinions of Plaintiff s Treating 2 Physician. 3 On May 11, 2011, two months prior to the hearing, Plaintiff s treating 4 physician, Mon-Quen Huang, M.D., provided a medical statement regarding 5 Plaintiff s physical abilities and limitations. (AR at 266.) In that form, Dr. Huang, 6 who indicated he had first seen Plaintiff in December 2009, also indicated that 7 Plaintiff could work no hours in a day, could stand for no hours, could sit for only 8 fifteen minutes at a time, could not lift on either an occasional or a frequent basis, 9 could never bend, and could only occasionally manipulate with his right and left 10 hands. (Id.) Dr. Huang also commented that Plaintiff has progressive ataxia 11 and underwent an extensive workup that found no etiology for the condition. (Id.) 12 Dr. Huang also indicated the ataxia has been getting worse and is disabling. 13 (Id.) Plaintiff contends that the ALJ dismissed these opinions without sufficient 14 consideration, in light of the extent of the treatment relationship and the 15 opportunities the physician had to examine Plaintiff. (JS at 16.) 16 The ALJ stated the following regarding Dr. Huang s opinion: 17 On December 13, 2009, Dr. Huang unremarkably treated the 18 claimant at UCLA Medical Center for complaints of pain and spastic 19 movements of the extremities. The claimant complained of tremors and 20 involuntary movements in his extremities. The claimant indicated that 21 he did not consume alcohol. The claimant also reported having an 22 unstable gait. A magnetic resonance imaging (MRI) scan of the 23 claimant s brain conducted on December 17, 2009, was unremarkable. 24 The impression was mild generalized cerebral and cerebella atrophy and 25 no findings to suggest Wilson disease. Dr. Huang diagnosed the 26 claimant with ataxia. Dr. Huang advised the claimant to follow-up with 27 a neurologist. The claimant was discharged in good condition. By 28 March 25, 2010, the claimant s ataxia condition improved. Progress 11 1 notes indicate the claimant s MRI scans were mild. Further the notes 2 suggest the claimant s tremors were dissipating. The claimant was also 3 advised to see a genetics specialist and given information about his 4 condition. 5 .... 6 The undersigned has considered the opinion of the treating 7 physician . . . . The undersigned has given little weight to this opinion 8 because it is brief, conclusory, and inadequately supported by clinical 9 findings. Dr. Huan[g] concluded the claimant was unable to work 10 because of ataxia. The undersigned finds this conclusion has no 11 probative value and rejects it. As an opinion on an issue reserved to the 12 Commissioner, this statement is not entitled to controlling weight and 13 is not given special significance pursuant to 20 CFR 404.1527(e) and 14 SSR 96-5. Dr. Huan[g] also did not provide an explanation for this 15 assessment or any specific functional limitations that prevented the 16 claimant from working. 17 claimant s subjective complaints, diagnoses, and treatment, but he did 18 not provide medically acceptable clinical or diagnostic findings to 19 support the functional assessment. This opinion is also inconsistent with 20 the diagnostic evidence that shows the claimant had normal findings 21 from an MRI scan of his brain. Further, progress notes that indicate the 22 claimant s tremors were subsiding do not support this opinion. This 23 opinion is also inconsistent with the undersigned s personal 24 observations. Dr. Huan[g] opined that the claimant could sit no more 25 than 15 minutes at a time. Yet, the undersigned observed the claimant 26 sat comfortably for the entire hearing that lasted for more than 25 27 minutes. Accordingly, the undersigned gives this opinion little weight 28 because it is conclusory and inconsistent with substantial evidence. Dr. Huan[g] primarily summarized the 12 1 (AR at 19, 21 (citing id. at 242, 244, 246, 261, 263) (internal citations omitted).) 2 It is well established in the Ninth Circuit that a treating physician s opinion 3 is entitled to special weight, because a treating physician is employed to cure and 4 has a greater opportunity to know and observe the patient as an individual. 5 McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). The treating 6 physician s opinion is not, however, necessarily conclusive as to either a physical 7 condition or the ultimate issue of disability. Magallanes v. Bowen, 881 F.2d 747, 8 751 (9th Cir. 1989). The weight given a treating physician s opinion depends on 9 whether it is supported by sufficient medical data and is consistent with other 10 evidence in the record. 20 C.F.R. §§ 404.1527(d), 416.927(d). Where the treating 11 physician s opinion is uncontroverted by another doctor, it may be rejected only 12 for clear and convincing reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 13 1995); Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). If the treating 14 physician s opinion is controverted, as it is here, it may be rejected only if the ALJ 15 makes findings setting forth specific and legitimate reasons that are based on the 16 substantial evidence of record. Thomas, 278 F.3d at 957; Magallanes, 881 F.2d at 17 751; Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). The ALJ can meet 18 this burden by setting out a detailed and thorough summary of the facts and 19 conflicting clinical evidence, stating his interpretation thereof, and making 20 findings. Thomas, 278 F.3d at 957 (citation and quotation omitted). 21 Preliminarily, the ALJ noted that Dr. Huang s conclusion that Plaintiff is 22 disabled is not entitled to controlling weight and, therefore, was not given special 23 significance. (AR at 21.) While this statement is correct, the Court notes that the 24 fact that a treating physician has rendered an opinion that can be characterized as 25 an opinion on the ultimate issue of disability does not relieve the Commissioner of 26 the obligation to state specific and legitimate reasons for rejecting it. Reddick v. 27 Chater, 157 F.3d 715, 725 (9th Cir. 1998); Embrey v. Bowen, 849 F.2d 418, 42128 22 (9th Cir. 1988). In this case, the ALJ went on to state specific and legitimate 13 1 reasons for rejecting Dr. Huang s conclusion. 2 The ALJ concluded that Dr. Huang s report was conclusory and inconsistent 3 with objective findings. It is not improper for an ALJ to discount a check-the-box 4 type of report such as Dr. Huang s that does not explain the basis of its 5 conclusions. See Batson v. Comm r of Soc. Sec. Admin., 359 F.3d 1190, 1195 6 (9th Cir. 2004) (ALJ properly rejected treating physician s conclusory check-list 7 report); see also Thomas, 278 F.3d at 957 (an ALJ need not accept the opinion of 8 any physician, including treating physician, if that opinion is brief, conclusory, 9 and inadequately supported by clinical findings ). 10 Moreover, a review of the record confirms that Dr. Huang s treatment notes 11 do not support the extreme assessment he offered on May 11, 2011. (Compare AR 12 at 266 with id. at 242, 244, 246, 261, 263.) Indeed, those notes suggested that the 13 tremors were dissipating (id. at 262), that muscle tone was increased (id.), and that 14 Plaintiff was able to put on his socks and touch his face during conversation 15 without any visible dysmetria5 (id. at 263). Moreover, the ALJ thoroughly 16 discussed the findings of the orthopedic consultative examiner (id. at 19-20), the 17 neurological consultative examiner (id. at 20), and the psychiatric consultative 18 examiner (id.), and even discounted their opinions that Plaintiff s ataxia and 19 degenerative disc disease did not more than minimally affect his ability to perform 20 basic work activities, as she believed that Plaintiff s physical impairments did 21 affect his capacity to work more than minimally (id. at 21), and these examiners 22 did not have the benefit of considering additional evidence that was available only 23 after the reconsideration hearing, including Dr. Huang s records, and the hearing 24 testimony (id.). Thus, the ALJ gave Plaintiff every benefit of the doubt based on 25 substantial evidence of record. 26 27 5 Dysmetria is an impaired ability to estimate distance in muscular 28 action. See http://www.merriam-webster.com/medlineplus/dysmetria (last visited Oct. 31, 2012). 14 1 Based on the foregoing, the Court finds that the foregoing reasons given by 2 the ALJ for discounting Dr. Huang s opinion were specific and legitimate and 3 supported by substantial evidence of record. 4 E. The ALJ Properly Assessed Plaintiff s RFC. 5 Plaintiff testified that he began using a walker in April 2010 and that he 6 cannot walk without it. (Id. at 39.) In 2009, he began using a cane to ambulate. 7 (Id. at 40.) He testified his condition was worsening. (Id. at 39-41.) Plaintiff 8 contends, therefore, that the ALJ inadequately considered the testimony of the 9 vocational expert ( VE ). (JS at 18.) Plaintiff claims that although the VE 10 testified that the impact of an assistive device and manipulation deficits would be 11 that no work was available, and an inability to stay on task and meet attendance 12 requirements also would yield no available jobs, the ALJ improperly omitted this 13 testimony and these limitations from the decision. (Id.) 14 In determining a claimant s disability status, an ALJ has a responsibility to 15 determine the claimant s RFC after considering all of the relevant medical and 16 other evidence in the record, including all medical opinion evidence. 20 C.F.R. 17 §§ 404.1545(a)(3), 404.1546(c), 416.945(a)(3), 416.946(c); see also Soc. Sec. 18 Ruling 96-8p, 1996 WL 374184, at *5, *7. As previously discussed, the ALJ 19 properly rejected the extreme opinion of Dr. Huang. Additionally, the Court finds 20 that the ALJ properly gave significant weight to the opinion of the neurological 21 consultative examiner, who found that Plaintiff could perform a range of work at 22 the light exertional level. (AR at 20-21 (giving opinion of neurological 23 consultative examiner significant . . . but not full weight because it was 24 supported by diagnostic results, consistent with the normal findings from an MRI 25 scan, supported by progress notes indicating Plaintiff s tremors were subsiding, 26 and verified by the overall conservative course of treatment).) 27 The record shows, moreover, that the need for an assistive device was 28 contradicted by Plaintiff s reported daily activities, the ALJ s observation that 15 1 Plaintiff was able to stand at the hearing without assistance from his walker, and 2 by the March 1, 2011, opinion of the neurological consultative examiner, Sarah 3 Maze, M.D., finding that the results of Plaintiff s examination were extremely 4 inconsistent, that he was able to handle his wheelchair without issue, and that he 5 appeared to shake only when he was aware he was being examined. (Id. at 20.) 6 Dr. Maze concluded that Plaintiff could stand and/or walk and/or sit for six hours 7 out of an eight-hour workday. (Id. (citing id. at 254).) 8 In order for the testimony of a VE to be considered reliable, the 9 hypothetical posed must include all of the claimant s functional limitations, both 10 physical and mental supported by the record. Thomas, 278 F.3d at 956 (quoting 11 Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995)). Hypothetical questions 12 posed to a VE need not include all alleged limitations, but rather only those 13 limitations which the ALJ finds to exist. See, e.g., Magallanes, 881 F.2d at 14 756-57; Copeland v. Bowen, 861 F.2d 536, 540 (9th Cir. 1988); Martinez v. 15 Heckler, 807 F.2d 771, 773-74 (9th Cir. 1986). As a result, an ALJ must propose 16 a hypothetical that is based on medical assumptions, supported by substantial 17 evidence in the record, that reflects the claimant s limitations. Osenbrock v. 18 Apfel, 240 F.3d 1157, 1163-64 (9th Cir. 2001) (citing Roberts v. Shalala, 66 F.3d 19 179, 184 (9th Cir. 1995)); see also Andrews v. Shalala, 53 F.3d 1035, 1043 (9th 20 Cir. 1995) (although the hypothetical may be based on evidence which is disputed, 21 the assumptions in the hypothetical must be supported by the record). 22 In this case, in her initial hypothetical to the VE, the ALJ included only 23 those limitations she ultimately determined to be Plaintiff RFC, which did not 24 include limitations for use of an assistive device or only occasional fine 25 manipulation bilaterally. (Id. at 44-45.) The VE testified that such an individual 26 could do the jobs of electronics worker, packing machine operator, and house 27 cleaner. (Id. at 45-46.) Even when the ALJ included a limitation to occasional 28 fine manipulation bilaterally (a finding ultimately not included in the RFC), the 16 1 VE indicated that Plaintiff could still perform the jobs of packing machine 2 operator and house cleaner.6 (Id. at 46.) 3 As the Court concluded above, the record evidence did not support the more 4 extreme limitations and conclusion of Dr. Huang, and that opinion was properly 5 discounted by the ALJ. Accordingly, the ALJ was not obligated to include 6 limitations in her hypothetical to the VE that she did not find to exist. Rollins, 261 7 F.3d at 857 ( Because the ALJ included all of the limitations that he found to 8 exist, and because his findings were supported by substantial evidence, the ALJ 9 did not err in omitting the other limitations that Rollins had claimed, but had failed 10 to prove. ). 11 Because the ALJ properly discounted Dr. Huang s opinion, and gave greater 12 weight to the opinion of Dr. Maze, and because the ALJ s RFC and hypothetical to 13 the VE were supported by the evidence of record, the ALJ appropriately relied on 14 the VE s testimony, and there was no need to include the additional limitation of 15 an assistive device in the hypothetical to the VE. Bayliss v. Barnhart, 427 F.3d 16 1211, 1217-18 (9th Cir. 2005). In short, the Court finds that the ALJ s RFC was 17 supported by substantial evidence, and she presented a complete hypothetical 18 question to the VE. Thus, there was no error. 19 F. Failure to Consult a Medical Expert. 20 The ALJ found that Plaintiff s date last insured is June 30, 2010. (AR at 21 23.) Plaintiff contends that his disability commenced when he broke his leg in 22 March 2009. (JS at 22 (citing AR at 35).) Following the broken leg, his health 23 deteriorated. (Id.) Plaintiff contends that pursuant to Social Security Ruling 8324 25 6 When Plaintiff s counsel asked the VE to include the additional limitation of needing to use a walker, only the electronics worker position would be 27 performable. (AR at 47.) The VE also agreed that the need to use a walker and a 28 limitation to only occasional fine manipulation bilaterally, would eliminate the electronics worker position as well. (AR at 47.) 26 17 1 20, when the date of onset must be inferred, the ALJ must call on the services of a 2 medical advisor. (JS at 22-23.) Plaintiff contends that the ALJ s failure to call the 3 medical expert was more than merely harmless error in light of the physical and 4 psychological issues that plague this claimant, coupled with the onset debacle. 5 (Id. at 23.) 6 The Ninth Circuit has held that an ALJ must call a medical expert where the 7 onset date of the disability is ambiguous or unclear. Armstrong v. Comm r of Soc. 8 Sec. Admin., 160 F.3d 587, 590 (9th Cir. 1998). But that requirement only applies 9 where a claimant has been found disabled at some time. Id. Here, the ALJ 10 explicitly did not find that Plaintiff was disabled at any time, and she found that 11 Plaintiff had not been disabled through the date he was last insured.7 As a result, 12 the ALJ was not required to call a medical expert. Sam v. Astrue, 550 F.3d 808, 13 811 (9th Cir. 2008) (where ALJ explicitly found claimant was not disabled at any 14 time, ALJ was not required by to introduce a medical expert into the process). 15 Thus, there was no error. 16 IV. 17 ORDER 18 Based on the foregoing, IT IS THEREFORE ORDERED, that judgment be 19 entered affirming the decision of the Commissioner of Social Security and 20 dismissing this action with prejudice. 21 22 Dated: November 1, 2012 23 HONORABLE OSWALD PARADA United States Magistrate Judge 24 25 26 27 7 The Court notes that in her decision, the ALJ indicated that the alleged 28 onset date was August 1, 2008, well before even Plaintiff s claimed date herein of March 2009. (AR at 12, 24.) 18

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