Wanda Czajka v. Michael J Astrue, No. 8:2009cv00194 - Document 15 (C.D. Cal. 2010)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec) .

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Wanda Czajka v. Michael J Astrue Doc. 15 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 WANDA CZAJKA, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. SACV 09-00194-MAN MEMORANDUM OPINION AND ORDER 17 Plaintiff filed a Complaint on February 20, 2009, seeking review of 18 the denial by the Social Security Commissioner ( Commissioner ) of 19 plaintiff s application for a period of disability and disability 20 insurance benefits ( DIB ). On March 30, 2009, the parties consented to 21 proceed before the undersigned United States Magistrate Judge pursuant 22 to 28 U.S.C. § 636(c). 23 September 28, 2009, in which: 24 Commissioner s decision and awarding benefits or, in the alternative, 25 remanding 26 defendant seeks an order affirming the Commissioner s decision. 27 Court has taken the parties Joint Stipulation under submission without 28 oral argument. the matter for The parties filed a Joint Stipulation on plaintiff seeks an order reversing the further administrative proceedings; and The Dockets.Justia.com SUMMARY OF ADMINISTRATIVE PROCEEDINGS 1 2 3 On September 15, 1997, plaintiff filed a prior application for a 4 period of disability and DIB, which was denied at the initial level. 5 (Administrative Record ( A.R. ) 73, 444.) 6 denial. Plaintiff did not appeal the (A.R. 444.) 7 8 On April 26, 2006, plaintiff filed another application for a period 9 of disability and DIB, alleging an inability to work from January 10, 10 1991, through December 31, 1995, the date last insured, due to open 11 heart surgery and bilateral carpal tunnel syndrome. 12 77.) 13 cleaner, hand packager, and assembler. (A.R. 13, 69-71, Plaintiff has past relevant work experience as a commercial (A.R. 78, 448-50, 461-62.) 14 The Commissioner denied plaintiff s application initially and upon 15 16 reconsideration.1 17 filed a Request for Hearing before an administrative law judge. 18 51.) 19 testified at a hearing before Administrative Law Judge Helen E. Hesse 20 ( ALJ ).2 21 and Alan Ey, a vocational expert, also testified at the hearing. (A.R. 52-56, 59-63.) On April 26, 2007, plaintiff (A.R. On April 16, 2008, plaintiff, who was represented by counsel, (A.R. 444-57, 460-61, 465.) Sami Nafoosi, a medical expert, (A.R. 22 23 1 24 25 26 Both times, the Commissioner denied plaintiff s application due to the failure to provide medical records from January 10, 1991, through December 31, 1995, the relevant period. (A.R. 52, 59.) Indeed, most of plaintiff s responses in the documents submitted with her application, including the Disability Report and the Daily Activities Questionnaire, are not helpful to the Court as they relate only to her current impairments and abilities. 27 2 28 Elizabeth Reschke acted as an interpreter during the hearing. (A.R. 444.) 2 1 453-70.) On September 2, 2008, the ALJ denied plaintiff s application. 2 (A.R. 11-21.) 3 request for review of the ALJ s decision. The Appeals Council subsequently denied plaintiff s (A.R. 4-6.) 4 SUMMARY OF ADMINISTRATIVE DECISION 5 6 7 The ALJ found that plaintiff did not engage in substantial gainful 8 activity from January 10, 1991, the alleged onset date of disability, 9 through December 31, 1995, the date she was last insured. (A.R. 13.) 10 The ALJ determined that plaintiff had the severe impairments of: 11 bilateral carpal tunnel syndrome, status post bilateral carpal tunnel 12 syndrome releases; right knee pain; and low back pain.3 13 impairments did not meet or equal one of the listed impairments in 20 14 C.F.R. Part 404, Subpart P, Appendix 1. (A.R. 13.) The (A.R. 15.) 15 16 17 The ALJ determined that plaintiff had the residual functional capacity ( RFC ) to: 18 19 perform light work as defined in 20 [C.F.R.] 404.1567(b) 20 except with the ability to stand and walk six hours in an 21 eight hour workday and sit eight hours in an eight hour 22 workday, with the ability to briefly change position for 1-3 23 minutes once every hour, occasionally push and pull with the 24 right lower extremity, and occasionally climb stairs, bend, 25 balance, stoop, kneel, crouch, or crawl, but no climbing of 26 3 27 28 The ALJ did not discuss plaintiff s open heart surgery, one of the conditions that plaintiff alleges limits her ability to work. (A.R. 77.) The record reflects that plaintiff had open heart surgery in March 2006 (A.R. 161), which is after the alleged period of disability. 3 1 ladders, ropes, or scaffolds, with the need to avoid work at 2 unprotected heights, use of vibrating tools, or with both 3 upper extremities, any power gripping, grasping, or power 4 torquing. 5 6 (A.R. 15.) 7 relevant 8 education, work experience, and RFC, and relying upon testimony from the 9 vocational expert, the ALJ found that jobs existed in the national 10 economy that plaintiff could have performed through the date last 11 insured, 12 attendant. The ALJ found that plaintiff was unable to perform any past work. such (A.R. as 19.) cashier Having II, considered parking lot plaintiff s attendant, and age, arcade (A.R. 20-21.) 13 14 Accordingly, the ALJ concluded that plaintiff was not disabled, as 15 defined in the Social Security Act, from January 10, 1991, the alleged 16 onset date, through December 31, 1995, the date last insured. 17 20.) (A.R. 18 19 STANDARD OF REVIEW 20 21 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 22 decision to determine whether it is free from legal error and supported 23 by substantial evidence in the record as a whole. 24 F.3d 625, 630 (9th Cir. 2007). 25 evidence as a reasonable mind might accept as adequate to support a 26 conclusion. 27 a mere scintilla but not necessarily a preponderance. 28 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). Orn v. Astrue, 495 Substantial evidence is such relevant Id. (citation omitted). 4 The evidence must be more than Connett v. While inferences from the 1 record can constitute substantial evidence, only those reasonably 2 drawn from the record will suffice. 3 1063, 1066 (9th Cir. 2006)(citation omitted). Widmark v. Barnhart, 454 F.3d 4 5 Although this Court cannot substitute its discretion for that of 6 the Commissioner, the Court nonetheless must review the record as a 7 whole, weighing both the evidence that supports and the evidence that 8 detracts from the [Commissioner s] conclusion. 9 Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also Desrosiers v. Sec y of 10 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 11 responsible for determining credibility, resolving conflicts in medical 12 testimony, and for resolving ambiguities. 13 1035, 1039 (9th Cir. 1995). The ALJ is Andrews v. Shalala, 53 F.3d 14 15 The Court will uphold the Commissioner s decision when the evidence 16 is susceptible to more than one rational interpretation. 17 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 18 review only the reasons stated by the ALJ in his decision and may not 19 affirm the ALJ on a ground upon which he did not rely. 20 at 630; see also Connett, 340 F.3d at 874. 21 the Commissioner s decision if it is based on harmless error, which 22 exists only when it is clear from the record that an ALJ s error was 23 inconsequential to the ultimate nondisability determination. Robbins 24 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 25 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 26 at 679. 27 28 5 Burch v. However, the Court may Orn, 495 F.3d The Court will not reverse DISCUSSION 1 2 Plaintiff alleges the following four issues: 3 (1) whether the ALJ 4 properly found that plaintiff was capable of performing the jobs of 5 cashier II, parking lot attendant, and arcade attendant; (2) whether the 6 ALJ properly considered the treating physicians 4 opinions; (3) whether 7 the ALJ posed a complete hypothetical to the vocational expert; and (4) 8 whether the ALJ properly considered the type, dosage, and side effects 9 of plaintiff s medications. (Joint Stipulation ( Joint Stip. ) at 2-3.) 10 11 I. 12 Plaintiff s Contention That Her RFC Is Inconsistent With The Jobs Found By The ALJ Fails. 13 14 At step five of the sequential evaluation process, the Commissioner 15 has the burden to show that a claimant is capable of performing a job 16 that exists in substantial numbers in the national economy. 17 Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). 18 into 19 experience. 20 obtaining the testimony of a vocational expert or referring to the 21 Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart 22 P, Appendix 2. consideration the Id. at 1100. claimant s RFC, Tackett v. The Commissioner must take age, education, and work The Commissioner may satisfy this burden by Id. at 1101. 23 24 Plaintiff contends that the ALJ erred at step five by improperly 25 determining that plaintiff had the [RFC] to perform other jobs in the 26 27 4 28 As discussed infra, the opinions at issue are not those of treating physicians but, rather, examining physicians. 6 1 national economy, such as cashier II5, parking lot attendant6, and 2 arcade attendant7. (Joint Stip. at 3.) Plaintiff argues that these jobs 3 require a great amount of handling[] which includes grasping on a 4 frequent basis and that the ALJ s RFC determination precludes grasping. 5 (Joint Stip. at 4.) Plaintiff further argues that the ALJ s non- 6 7 5 14 As set forth in the Dictionary of Occupational Titles ( DOT ), a cashier II [r]eceives cash from customers or employees in payment for goods or services and records amounts received: Recomputes or computes bill, itemized lists, and tickets showing amount due, using adding machine or cash register. Makes change, cashes checks, and issues receipts or tickets to customers. Records amounts received and prepares reports of transactions. Reads and records totals shown on cash register tape and verifies against cash on hand. May be required to know value and features of items for which money is received. May give cash refunds or issue credit memorandums to customers for returned merchandise. May operate ticket-dispensing machine. May operate cash register with peripheral electronic data processing equipment by passing individual price coded items across electronic scanner to record price, compile printed list, and display cost of customer purchase, tax, and rebates on monitor screen. DICOT 211.462-010. 15 6 8 9 10 11 12 13 16 17 18 19 20 As set forth in the DOT, a parking lot attendant [p]laces numbered tag on windshield of automobile to be parked and hands customer similar tag to be used later in locating parked automobile. Records time and drives automobile to parking space, or points out parking space for customer's use. Patrols area to prevent thefts from parked automobiles. Collects parking fee from customer, based on charges for time automobile is parked. Takes numbered tag from customer, locates automobile, and surrenders it to customer, or directs customer to parked automobile. May service automobiles with gasoline, oil, and water. When parking automobiles in storage garage, may be designated Storage-Garage Attendant (automotive ser.). May direct customers to parking spaces DICOT 915.473-010. 21 7 22 23 24 25 26 27 28 As set forth in the DOT, an arcade attendant [a]ssists patrons of amusement facility, and performs minor repairs on game machines: Explains operation of game machines to patrons and exchanges coins for paper currency. Listens to patron complaints regarding malfunction of machines. Removes coin accepter mechanism of machines, using key, and observes mechanism to detect causes of malfunctions, such as bent coins, slugs, or foreign material. Removes obstructions, repositions mechanism, inserts coins, and observes machine operation to determine whether malfunctions are still present. Places out-of-order signs on defective machines and returns money lost in defective machines to patrons. Notifies maintenance department of defective machines, and records times of machine malfunctions and repairs to maintain required records. Observes conduct of patrons in facility to ensure orderliness, and asks disruptive patrons to leave. DICOT 342.667-014. 7 1 disability finding and the vocational expert s testimony conflicted with 2 the descriptions of these jobs set forth in the DOT, and neither 3 articulated reasons for such departure as required. 4 5.) (Joint Stip. at 4- 5 Plaintiff s claim is without merit. 6 The ALJ s finding that 7 plaintiff is capable of performing the jobs of cashier II, parking lot 8 attendant, and arcade attendant is proper. 9 assertion, grasping and handling are not the same.8 Contrary to plaintiff s See, e.g., Olley v. 10 Astrue, 2008 WL 4554883, *4 (C.D. Cal. Oct. 9, 2008)(hypothetical, 11 which was consistent with the RFC, distinguished between handling and 12 grasping); Dixon v. Astrue, 2008 WL 3984594, *11 (N.D. Cal. Aug. 27, 13 2008)(RFC distinguished between handling and grasping). Although Social 14 Security Ruling ( SSR ) 85-15 describes handling as seizing, holding, 15 grasping, turning or otherwise working primarily with the whole hand or 16 hands, this simply means that handling may include grasping, not that 17 it must include it nor that it involves frequent grasping. 18 grasping requires a firm hold or grip.9 The act of Handling can mean simply 19 20 21 8 25 Plaintiff and defendant disagree over whether the ALJ intended the grasping limitation to preclude any type of grasping as plaintiff argues or only power grasping as defendant argues. (Joint Stip. at 3-7.) Although the ALJ s questioning of the vocational expert and hypothetical presented suggest that the ALJ may have intended to preclude power grasping as opposed to all forms of grasping (see A.R. 463), the Court need not make such a determination or remand the case for clarification. The ALJ s determination was proper regardless of whether the ALJ intended to preclude grasping or power grasping. 26 9 22 23 24 27 28 See http://www.thefreedictionary.com/grasp. Grasp is defined as to take hold of or seize firmly with or was if with hand or to clasp firmly with or as if with hand. Id. See also http://www.merriam-webster.com/dictionary/grasp (defining grasp as to clasp or embrace especially with the fingers or arms ). 8 1 touching or using the hands.10 It is improper to conflate the two terms. 2 3 Further, the vocational expert incorporated the grasping limitation 4 in his finding. 5 perform light work11 with certain limitations, including the requirement 6 that she avoid power gripping, grasping, or power torquing with both 7 upper extremities. 8 vocational expert, Alan Ey, which included this RFC and limitations. 9 (A.R. 462-63.) Based on this RFC and limitations, Mr. Ey testified that 10 plaintiff could perform jobs that exist in substantial numbers in the 11 national economy, including cashier II, parking lot attendant, and 12 arcade attendant. 13 disabled, the ALJ properly relied on the vocational expert s testimony. 14 As 15 plaintiff could perform these jobs do not deviate from the DOT job 16 descriptions, no explanation was necessary.12 the ALJ s The ALJ determined that plaintiff had the RFC to (A.R. 15.) The ALJ posed a hypothetical to the (A.R. 464-65.) finding and the In finding that plaintiff was not vocational expert s testimony that 17 18 Accordingly, the ALJ did not err when she determined that plaintiff 19 could perform the jobs of cashier II, parking lot attendant, and arcade 20 attendant. 21 22 10 23 11 24 25 See http://dictionary.reference.com/browse/handling. Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. 20 C.F.R. § 404. 1567(b). 26 12 27 28 Although SSR 00-4p requires that an ALJ expressly ask a vocational expert whether his testimony conflicts with the DOT, the ALJ s failure to do so here was harmless error, as there is no departure from the DOT. Massachi v. Astrue, 486 F.3d 1149, 1152-54 n.19 (9th Cir. 2007). 9 1 II. 2 The ALJ s Rejection Of The Opinions Of The Examining Physicians Does Not Warrant Reversal. 3 4 In the hierarchy of physician opinions considered in assessing a 5 social security claim, [g]enerally, a treating physician s opinion 6 carries more weight than an examining physician s, and an examining 7 physician s opinion carries more weight than a reviewing physician s. 8 Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. § 9 404.1527(d)(1)-(2). The opinions of treating physicians are entitled to 10 the greatest weight because the treating physician is hired to cure and 11 has a better opportunity to observe the claimant. 12 881 F.2d 747, 751 (9th Cir. 1989). 13 is not contradicted by another physician, it may be rejected only for 14 clear and convincing reasons. Lester v. Chater, 81 F.3d 821, 830 (9th 15 Cir. 1995)(as amended). 16 may not reject the opinion of a treating physician without providing 17 specific and legitimate reasons supported by substantial evidence in 18 the record. 19 convincing reasons for rejecting the uncontradicted opinion of an 20 examining physician and specific and legitimate reasons supported by 21 substantial evidence for rejecting a contradicted opinion. Id. at 830- 22 31. Id. Magallanes v. Bowen, When a treating physician s opinion When contradicted by another doctor, the ALJ Similarly, the Commissioner must provide clear and Widmark 454 F.3d at 1066-67. 23 Plaintiff contends that the ALJ improperly rejected the opinions of 24 25 two physicians: Dr. Gregory B. Kirkorowicz; and Dr. James D. Brown.13 26 27 28 13 Plaintiff also argues that the ALJ improperly rejected the opinion of an unidentified physician who completed the Medical Opinion Re: Ability to Do Work-Related Activities (Physical) dated August 1, 2007. 10 1 (Joint Stip. at 7-9.) Plaintiff argues that the ALJ failed to provide 2 specific and legitimate reasons for rejecting the opinions. 3 Stip. at 9.) (Joint 4 As 5 an initial matter, although plaintiff characterizes Dr. 6 Kirkorowicz and Dr. Brown as treating physicians, the record reflects 7 that both are actually examining physicians. 8 plaintiff in connection with her worker s compensation case. Both physicians examined 9 10 Doctor Kirkorowicz 11 12 On February 28, 1991, Dr. Kirkorowicz examined plaintiff and issued 13 a Permanent and Stationary Report of the same date detailing his 14 findings and conclusions (the February 1991 Kirkorowicz Report ). 15 (A.R. 384-89.) Dr. Kirkorowicz diagnosed plaintiff with: carpal tunnel 16 bilateral, status post carpal tunnel release right wrist; chronic 17 cervical sprain; herniated nucleus pulposus, lumbosacral region, L-4/L-5 18 and L-3 and L-4 levels; chronic low back pain secondary to the herniated 19 disc and lumbosacral sprain; and chronic headaches, muscle tension, 20 vascular 21 complaints of pain in her right hand, both wrists, low back, right leg, 22 and neck. 23 complained of a tingling sensation in her right leg and first to third 24 fingers in an unspecified hand, severe headaches, and insomnia. 25 385.) 26 present in both wrists, right hand grip weakness, and tenderness to type. (A.R. 389.) (A.R. 384-85.) Dr. Kirkorowicz noted plaintiff s Dr. Kirkorowicz noted that plaintiff also (A.R. Dr. Kirkorowicz further noted that there were Tinel s signs 27 28 (Joint Stip. at 8-9.) The Court does not need to address this opinion, as it is not relevant to the disability time period. 11 1 palpation in the paraspinal areas of the neck and lumbosacral regions. 2 (A.R. 385, 387-88.) 3 not likely that [plaintiff] will make further improvement. 4 389.) Dr. Kirkorowicz opined that, at the time, it was (A.R. 5 6 On September 17, 1992, Dr. Kirkorowicz examined plaintiff again and 7 issued a second Permanent and Stationary Report (the September 1992 8 Kirkorowicz Report ). 9 almost identical to those made in the February 1991 Kirkorowicz Report. (A.R. 392-97.) Dr. Kirkorowicz s diagnoses were 10 (Compare A.R. 389 and 394.) 11 positive Tinel s sign in both wrists; sensory loss over the right first, 12 second, and third fingers; decreased sensory perception over the left 13 index finger; an abnormal MRI scan indicating disc herniation; and 14 tenderness to palpation in the left paraspinal area, lumbosacral region 15 and paraspinal area of the neck. (A.R. 395-96.) Dr. Kirkorowicz opined 16 that plaintiff was precluded from heavy lifting, prolonged weight 17 bearing, 18 carrying objects over [one] pound. 19 further opined that plaintiff would not be able to work as an assembler 20 and that [i]n order for her to re-enter the job market, she need[ed] to 21 be retrained for an occupation that included these restrictions. (Id.) repetitive Dr. Kirkorowicz noted that plaintiff had: grasping, pushing, pulling and (A.R. 396.) repetitively Dr. Kirkorowicz 22 23 In her decision, the ALJ summarized both the February 1991 24 Kirkorowicz Report and the September 1992 Kirkorowicz Report. (A.R. 13- 25 14, 16-18.) 26 exertional limitations identified by Dr. Kirkorowicz (A.R. 18), which 27 were no heavy lifting, prolonged weight bearing, and repetitively 28 carrying The ALJ stated that she assign[ed] little weight to the objects over one pound 12 (A.R. 396). See 20 C.F.R. § 1 404.1569a(b). The ALJ neither rejected the physician s diagnosis nor 2 the nonexertional limitations he imposed. 3 limitations he imposed, the ALJ stated that there was no support in the 4 form of clinical signs or symptoms from any treating or examining source 5 in the record for them. In rejecting the exertional (A.R. 18.) 6 The ALJ provided specific and legitimate reasons supported by 7 8 substantial evidence 9 limitations. for rejecting Dr. Kirkorowicz s exertional Although the ALJ only expressly stated one reason for 10 rejecting the limitations, 11 legitimate 12 limitations that can be inferred from the decision. 13 F.2d at 755 (permitting the court to draw inferences of specific and 14 legitimate reasons from the ALJ s opinion). reasons for the ALJ rejecting provided Dr. other specific Kirkorowicz s and exertional Magallanes, 881 15 16 Based on the record before the Court, it was not error for the ALJ 17 to conclude that there was no clinical support for the exertional 18 limitations. Although there were clinical signs and symptoms to support 19 Dr. Kirkorowicz s diagnoses (A.R. 396), it is not clear that they 20 supported his exertional limitations.14 21 ( Where 22 interpretation, it is the ALJ s conclusion that must be upheld. ). 23 ALJ notes that, with respect to plaintiff s back pains and related 24 limitations, there were findings of tenderness and some decreased range 25 of motion (A.R. 388, 396), but there was no evidence of nerve root or evidence is susceptible to See Burch, 400 F.3d at 679 more than one rational The 26 14 27 28 In the September 1992 Kirkorowicz Report, Dr. Kirkorowicz references an orthopedic report, but despite the Commissioner s multiple requests for records from 1991-1995, plaintiff has not provided this report. (A.R. 395.) 13 1 cord impingement or encroachment, canal recess or foraminal stenosis, or 2 evidence of post surgical changes or bony abnormalities. (A.R. 17.) 3 Regarding 4 the carpal tunnel syndrome and Dr. Kirkorowicz s 5 limitation that plaintiff be precluded from carrying objects over one 6 pound (A.R. 396), the ALJ is correct that nothing in the record 7 supports such a limitation. 8 record indicated that the impairments may not have been as limiting as 9 plaintiff alleged. The ALJ noted that plaintiff s medical As reported by Dr. Kirkorowicz, plaintiff only 10 required conservative treatment, including non-steroidal and anti- 11 inflammatory medication, for her pain. (A.R. 17, 389.) The record also 12 indicated that the symptoms experienced by plaintiff with respect to her 13 carpal tunnel syndrome were not persistent throughout. (A.R. 17.) In 14 February 1991, Dr. Kirkorowicz reported that plaintiff had positive 15 Tinel s syndrome bilaterally (A.R. 17, 388), but the laboratory data 16 only revealed abnormal nerve conduction study compatible with right 17 carpal tunnel syndrome (A.R. 17, 388). 18 similar study for her left wrist. 19 Brown reported that plaintiff had a positive Phalen s test on her right 20 wrist, but that plaintiff also reported pain in her left wrist. 21 17, 406.) In May 1992, Dr. Todd Katzman, a treating physician, reported 22 that plaintiff experienced numbness, tingling, and pain in her left hand 23 and wrist, as well as pain, but no sensory loss, in her right wrist.15 24 (A.R. 17, 381.) 25 loss in the fingers of the right hand and decreased sensory perception There was no mention of a (A.R. 17, 388.) In April 1991, Dr. (A.R. In September 1992, Dr. Kirkorowicz reported sensory 26 27 28 15 During plaintiff s May 1992 examination by Dr. Katzman, he conducted both the Tinel s and Phalen s tests. (A.R. 379.) Both tests were negative for the right hand and positive for the left wrist. (Id.) 14 1 in one finger of the left hand. (A.R. 17, 396.) The ALJ further noted 2 that plaintiff did not want to proceed with surgery on her left wrist 3 for carpal tunnel syndrome. (A.R. 16, 381.) 4 5 The ALJ also relied on the opinions of three other physicians in 6 rejecting Dr. Kirkorowicz s exertional limitations. 7 physicians 8 plaintiff suffered from the impairments of bilateral carpal tunnel 9 syndrome and and Dr. back Kirkorowicz pain. The generally four were also in agreed The three other agreement that that plaintiff 10 consequently required certain limitations. 11 reached different conclusions as to the nature and extent of the 12 exertional limitations required. With respect to plaintiff s back pain, 13 Dr. 14 precluded plaintiff from lifting greater than 20 pounds, and Dr. Sami 15 Nafoosi, a medical expert, opined that plaintiff could lift 20 pounds 16 occasionally and ten pounds frequently. (A.R. 381, 407, 458.) 17 respect to plaintiff s carpal tunnel syndrome, Dr. Katzman, Dr. Brown, 18 and Dr. Nafoosi imposed no limitation on plaintiff from carrying 19 objects, much less a limitation as restrictive as precluding plaintiff 20 from repetitively carrying objects over one pound. 21 within her power when there is more than one rational interpretation of 22 the medical evidence, the ALJ specifically noted that she gave greater 23 weight to the opinion of Dr. Katzman, because he was a treating 24 physician (A.R. 18), and to the opinion of Dr. Nafoosi, because he 25 reviewed plaintiff s entire medical file and was familiar with Social 26 Security Administration policy (A.R. 19.) 27 F.3d 947, 957-58 (9th Cir. 2002)(stating that when there is conflicting 28 medical Brown precluded evidence, it plaintiff is the from purview 15 The physicians, however, heavy of lifting, Dr. Katzman With (A.R. 18-19.) As See Thomas v. Barnhart, 278 the ALJ to resolve the 1 conflicts); Andrews, 53 F.3d at 1039-40 (same). 2 3 Finally, the ALJ also considered plaintiff s general credibility in 4 considering how to resolve the conflict in the medical evidence. (A.R. 5 17-18.) 1989) 6 (disregarding treating physician s opinion because it was premised on 7 plaintiff s subjective 8 discounted). The ALJ noted that, at the hearing, plaintiff was evasive 9 and See vague. Fair (A.R. v. Bowen, 885 F.2d complaints, 17.) Plaintiff 597, which was 605 the often (9th ALJ Cir. had unable to already provide 10 information concerning: her dates of employment, employer s name, and 11 job duties; how much she was paid to babysit her grandchildren;16 the 12 amount and date of her worker s compensation settlement; and amount of 13 time between her carpal tunnel surgeries. (A.R. 17-18, 445-57.) 14 15 Even assuming that the ALJ s express reason for rejecting Dr. 16 Kirkorowicz s exertional limitations was not specific and legitimate, 17 the error would be harmless. 18 specific 19 exertional limitations and, thus, would have reached the same disability 20 determination in any event. Further, Dr. Kirkorowicz, Dr. Katzman, and 21 Dr. plaintiff 22 rehabilitation, thus indicating an ability to work.17 Brown and all legitimate noted As discussed above, the ALJ had other reasons that for rejecting was Dr. qualified Kirkorowicz s for vocational (A.R. 383, 396, 23 24 16 26 From 1999 through 2002, plaintiff was paid through the Orange County Children s Society/Welfare Program to babysit her grandchildren for about 30 hours a week. (A.R. 93.) The Social Security Administration considered this work as an unsuccessful work attempt, as plaintiff s income was under the SGA limit. (Id.) 27 17 25 28 Although Dr. Kirkorowicz concluded that plaintiff was qualified for vocational rehabilitation, he opined that it would difficult or impossible to retrain plaintiff due to her inability to speak English 16 1 402.) 2 Accordingly, the ALJ s rejection of the opinion of Dr. Kirkorowicz 3 4 does not warrant reversal. 5 6 Doctor Brown 7 On February 12, 1991, Dr. Brown examined plaintiff in connection 8 9 with her worker s compensation case. (A.R. 400.) Dr. Brown issued an 10 Initial Report of that date, but he did not issue a Permanent and 11 Stationary Report until April 9, 1991 (the Brown Report ) because he 12 had unanswered questions and required additional medical information.18 13 (Id.) 14 records from January 20, 1990, through January 15, 1991.19 15 05.) 16 wrists, cervical spine, low back, and right knee. 17 Brown diagnosed plaintiff with: 18 tunnel syndrome, status postoperative on the right; low back sprain; and 19 internal derangement of the right knee. 20 that 21 gripping, and lengthy standing or walking. 22 further opined that plaintiff required vocational rehabilitation. (Id.) In the Brown Report, Dr. Brown summarized plaintiff s medical (A.R. 401- Dr. Brown noted that plaintiff complained of slight pain in the patient was precluded (A.R. 406-07.) Dr. a cervical sprain; bilateral carpal from (A.R. 406.) heavy lifting, Dr. Brown opined repetitive (A.R. 407.) heavy Dr. Brown 23 24 fluently. (A.R. 396.) vocational expert. The Court notes that Dr. Kirkorowicz is not a 25 18 26 Dr. Brown stated that his Initial Report should be considered a part of his Permanent and Stationery Report. (A.R. 400.) The Initial Report, however, is not included in the record. 27 19 28 Dr. Brown reviewed the medical records from plaintiff s treating physicians. Dr. Brown was not a treating physician. 17 In her decision, the ALJ summarized the Brown Report. 1 (A.R. 14, 2 18.) The ALJ gave the Brown Report some weight but rejected the 3 exertional limitations identified by Dr. Brown, stating that there was 4 no support in the form of clinical signs or symptoms for the lifting 5 and standing/walking limits. 6 plaintiff s 7 examination. back pain and (A.R. 18.) lower These limitations relate to extremity at the time of the (A.R. 407.) 8 9 The ALJ did not err. The ALJ provided specific and legitimate 10 reasons supported by substantial evidence for rejecting Dr. Brown s 11 exertional limitations. 12 support Dr. Brown s impairment findings, but such evidence does not 13 necessarily support the exertional limitations. 14 magnetic resonance scan findings, some of which were negative (A.R. 406- 15 07), the record before the Court contains no mention of the actual 16 examination and tests Dr. Brown conducted. Further, as discussed above, 17 the 18 plaintiff s back pain was not as limited as alleged. 19 conservative treatment plan. 20 of tenderness and some decreased range of motion, and there was no 21 evidence of nerve root impingement or encroachment, canal recess, or 22 foraminal stenosis. 23 she reported that she was able to engage in semi-sedentary activities. 24 (A.R. 17, 376.) 25 clinical signs or symptoms supporting the exertional limitations is a 26 rational interpretation of the evidence. 27 40. ALJ noted that As with Dr. Kirkorowicz, there is evidence to the (Id.) medical evidence (A.R. 17.) and Other than the nuclear record suggest that Plaintiff had a There were minimal findings Plaintiff was also ambulatory, and in 1995, Consequently, the ALJ s determination that are no 28 18 See Andrews, 53 F.3d at 1039- 1 As also discussed above, the ALJ cited other specific and 2 legitimate reasons for rejecting Dr. Brown s exertional imitations. 3 First, the ALJ properly relied on the opinions of Dr. Katzman, a 4 treating physician, and Dr. Nafoosi, a medical expert, both of whom 5 precluded 6 Magallanes, 881 F.2d at 751 (stating that the treating physician is 7 entitled to the greatest weight). 8 limitations on standing and walking, and Dr. Nafoosi limited plaintiff s 9 standing and walking to six out of eight hours. lifting more than 20 pounds. (A.R. 381, 458.) See Dr. Katzman did not place any (A.R. 458-59.) Second, 10 the ALJ found plaintiff s credibility suspect, noting that she was 11 evasive and vague. (A.R. 17.) 12 13 Even assuming that the ALJ s express reason for rejecting Dr. 14 Brown s exertional limitations - no clinical signs or symptoms - was 15 not specific and legitimate, the error would be harmless. The ALJ would 16 have reached the same disability determination in any event. 17 addition to the inferred specific and legitimate reasons stated above, 18 Dr. Brown, himself, opined that plaintiff could perform some work with 19 vocational rehabilitation. In (A.R. 407.) 20 21 22 Accordingly, the ALJ s rejection of the opinion of Dr. Brown does not warrant reversal. 23 24 III. The ALJ Posed A Complete Hypothetical To The Vocational Expert. 25 26 The ALJ may rely on a vocational expert to meet her burden of 27 showing that a claimant is capable of performing work that exists in 28 substantial numbers in the economy. 19 Magallanes, 881 F.2d at 756. In 1 posing a hypothetical to a vocational expert, the ALJ must accurately 2 reflect all of the claimant s limitations. 3 418, 422-23 (9th Cir. 1988). 4 include all limitations asserted by the claimant. 5 at 756. 6 those impairments that are supported by substantial evidence in the 7 record. Embrey v. Bowen, 849 F.2d The ALJ, however, is not required to Magallanes, 881 F.2d Instead, it is proper for the ALJ to limit a hypothetical to Osenbrock v. Apfel, 240 F.3d 1157, 1163-64 (9th Cir. 2001). 8 Here, 9 10 the ALJ asked the vocational expert the following hypothetical question20: 11 12 This individual can occasionally lift 20 pounds, frequently 13 lift ten pounds, sit eight hours out of an eight-hour day, 14 stand or walk six hours out of an eight-hour day. 15 able to change positions briefly one to three minutes every 16 hour. 17 stoop, no crouch or crawl. 18 ladders, 19 heights, using vibrating tools, or with both upper extremities 20 any power gripping, grasping, or torquing. She must be She can occasionally climb stairs, bend or balance, ropes, or She s precluded from climbing scaffolding, working at unprotected 21 22 (A.R. 463.) The vocational expert responded that plaintiff could work 23 as a cashier II, parking lot attendant, and arcade attendant.21 (A.R. 24 25 20 26 The ALJ took plaintiff s language skills into consideration and concluded that plaintiff has the ability to speak at least very basic English. (A.R. 463.) 27 21 28 The vocational expert did not regard plaintiff s past relevant work as a hand packager as requiring power gripping. (A.R. 463.) 20 1 464.) 2 3 Plaintiff argues that the ALJ erred by failing to include the 4 limitations set forth in the September 1992 Kirkorowicz Report, which 5 precluded 6 repetitively over [one] pound. 22 7 argument is unpersuasive. Out of four opinions, Dr. Kirkorowicz was the 8 sole physician who imposed such a limitation. 9 was the duty of the ALJ to resolve conflicts and ambiguities in medical plaintiff from pushing, pulling, and carrying (Joint Stip. at 15.) Andrews, 53 F.3d at 1039-40. objects Plaintiff s As discussed above, it 10 testimony. Based on the medical record 11 before her and plaintiff s lack of credibility, the ALJ properly chose 12 to give weight to the opinions of the other three physicians and reject 13 this limitation. Thus, the ALJ properly excluded these limitations from 14 the hypothetical. 15 out all of plaintiff s limitations that were supported by medical 16 evidence. The ALJ s hypothetical to the vocational expert set 17 18 Accordingly, the ALJ posed a complete hypothetical to the 19 vocational expert. 20 Cir. 2001)( Because the ALJ included all of the limitations that he 21 found to exist, and because his findings were supported by substantial 22 evidence, the ALJ did not err in omitting the other limitations that 23 Rollins had claimed but had failed to prove. ). 24 occurred. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Thus, no error 25 26 27 28 22 Plaintiff also argues that the ALJ improperly failed to include the findings from the Medical Opinion Re: Ability to Do Work-Related Activities (Physical), dated August 1, 2007. (Joint Stip. at 15.) As the Court stated supra, this opinion is not relevant to the period at issue. 21 1 IV. 2 There Is No Reversible Error With Respect To The ALJ's Consideration Of The Side Effects Of Plaintiff's Medications. 3 4 Pursuant to SSR 96-7p, an ALJ must consider the type, dosage, 5 effectiveness, and side effects of any medication the individual takes 6 or has taken to alleviate pain or other symptoms. 7 only consider those medication side effects that have a significant 8 impact on an individual s ability to work. Erickson v. Shalala, 9 F.3d 9 813, 817-18 (9th Cir. 1993)(citation However, an ALJ need omitted). Side effects of 10 medications not severe enough to interfere with a claimant's ability to 11 work are properly excluded from consideration. 12 at 1164 ( There were passing mentions of the side effects of [the 13 claimant s] medication in some of the medical records, but there was no 14 evidence 15 claimant s] ability to work. ). of side effects severe enough to See Osenbrock, 240 F.3d interfere with [the 16 17 Plaintiff contends that the ALJ failed to consider and discuss the 18 type, dosage, and side effects of plaintiff s medications. (Joint Stip. 19 at 16-18.) 20 use of medications, and any side effects therefrom, had a negative 21 effect on her ability to work. 22 (9th Cir. 1985)(stating that a claimant bears the burden of proving that 23 her medication impairs her ability to work). Plaintiff, however, has not met her burden to show that the See Miller v. Heckler, 770 F.2d 845, 849 24 Plaintiff alleges that she experiences a number of side effects 25 26 from various medications that she is currently taking. (Joint Stip. at 27 17.) 28 that negatively affect her ability to work from her current medications, Even assuming that plaintiff actually experiences side effects 22 1 such side effects are irrelevant to her application. Plaintiff does not 2 allege that she experienced any side effects from the medications she 3 took during the period of alleged disability. 4 not even name any of the medications she took from 1991 through 1995. In fact, plaintiff does 5 6 Thus, plaintiff did not meet her burden of demonstrating that her 7 use of medications impaired her ability to work. Accordingly, there was 8 no error regarding the side effects of plaintiff s medication. 9 10 CONCLUSION 11 12 For the foregoing reasons, the Court finds that the Commissioner s 13 decision is supported by substantial evidence and is free from material 14 legal error. Neither reversal of the Commissioner s decision nor remand 15 is warranted. 16 17 Accordingly, IT IS ORDERED that Judgment shall be entered affirming 18 the decision of the Commissioner of the Social Security Administration. 19 20 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 21 copies of this Memorandum Opinion and Order and the Judgment on counsel 22 for plaintiff and for defendant. 23 24 LET JUDGMENT BE ENTERED ACCORDINGLY. 25 26 DATED: August 19, 2010 27 28 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 23

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