Dinesen v. Commissioner Social Security Administration, No. 3:2013cv01554 - Document 18 (D. Or. 2014)
Court Description: OPINION AND ORDER. Signed on 11/19/2014 by Judge Malcolm F. Marsh. (pvh)
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Dinesen v. Commissioner Social Security Administration Doc. 18 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON BOBBIEJO DINESEN Plaintiff, Case No. 3:13-CV-01554-MA OPINION AND ORDER v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY Defendant. RICHARD F. McGINTY McGinty & Belcher, PC P.O. Box 12806 Salem, OR 97309 Attorney for Plaintiff S. AMANDA MARSHALL United States Attorney District of Oregon RONALD K. SILVER Assistant United States Attorney 1000 S.W. Third Ave., Suite 600 Portland, OR 97204 HEATHER L. GRIFFITH Social Security Administration Off ice of the General Counsel 701 Fifth Ave., Suite 2900, M/S 221A Seattle, WA 98104-7075 Attorneys for Defendant 1 - OPINION AND ORDER Dockets.Justia.com MARSH, Judge Plaintiff Bobbiejo Dinesen seeks judicial review of the fina1 decision of application the for Commissioner Supplemental of Social Security Security Income (SSI) denying her disability benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. This Court has jurisdiction pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c) (3). For the reasons that follow, I affirm the final decision of the Commissioner. PROCEDURAL AND FACTUAL BACKGROUND Plaintiff protectively filed an application for SSI on December 16, 2009, alleging disability beginning March 8, 2009, due to hepatitis C, bipolar disorder, and attention deficit disorder. Plaintiff's reconsideration. claims were denied initially and upon Plaintiff filed a request for a hearing before an administrative law judge (ALJ). An ALJ held a hearing on March 14, 2012, at which plaintiff appeared with her attorney and testified. A vocational expert, Patricia B. Ayerza also appeared at the March 14, 2012 hearing and testified. an unfavorable decision. On June 28, 2012, the ALJ issued The Appeals Council denied plaintiff's request for review, and therefore, the ALJ's decision became the final decision of the Commissioner for purposes of review. Born in 1979, plaintiff was 32 years Dld on the date of the ALJ's adverse decision. Plaintiff completed school through the eighth grade but was in special education classes and has past 2 - OPINION AND ORDER relevant work as a gas station attendant, certified nursing assistant, and inserter. THE ALJ'S DISABILITY ANALYSIS The Corrunissioner has established a five-step sequential Bowen v. process for determining whether a person is disabled. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. 416.920. § Each step is potentially dispositive. The claimant bears the burden of proof at Valentine v. steps one through four. Admin., 574 F.3d 685, 689 Commissioner Soc. Tackett v. Apfel, 180 (9th Cir. 2009); F.3d 1094, 1098 (9th Cir. 1999). Sec. At step five, the burden shifts to the Corrunissioner to show that the claimant can do other work which exists in the national economy. Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012). At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity since her alleged onset of disability. At step two, the ALJ found that plaintiff had the following severe impairments: bipolar disorder and substance abuse. the ALj found that plaintiff's impairments, or At step three, combination of impairments, did not meet or medically equal a listed impairment. The ALJ assessed plaintiff with a residual functional capacity (RFC) to perform all exertional levels of work with the exception of a limitation to simple written corrununications, routine work not requiring compolex no interaction with the general public, occasional interaction with coworkers, and no tandem task work. 3 - OPINION AND ORDER At step four, the ALJ found plaintiff is unable to perform any past relevant considering work. At plaintiff's step age, five, the education, ALJ work concluded that experience, and residual functional capacity, jobs exist in significant numbers in the national economy that plaintiff can perform, such as line packaging worker and garment sorter. Accordingly, the ALJ concluded that plaintiff has not been under a disability under the Social Security Act from December 16, 2009, through the date of the decision. ISSUES ON REVIEW On appeal to this court, errors were committed: (1) plaintiff contends the following the ALJ failed to properly evaluate medical evidence and opinion of examining physician David N. Sweet Ph.D.; (2) the ALJ failed to properly consider medical evidence and opinion of treating physician Joel Suckow, M.D.; (3) the ALJ failed to consider treatment notes from Riley Crowder, a Qualified Mental Health Practitioner (QMHP); and (4) based on these errors, the ALJ posed an incomplete hypothetical to the Vocational Expert. STANDARD OF REVIEW The district court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings are supported by substantial evidence in the record. 405 (g); Berry v. Astrue, 622 F. 3d 1228, 1231 42 U.S.C. (9th Cir. § 2010). "Substantial evidence is more than a mere scintilla but less than 4 - OPINION AND ORDER a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Hill, 698 F.3d at 1159 (internal quotations omitted); Valentine, 574 F.3d at 690. The court must weigh all the evidence, whether Martinez v. detracts from the Commissioner's decision. 807 F.2d 771, 772 (9th Cir. 1986). it supports or Heckler, The Commissioner's decision must be upheld, even if the evidence is susceptible to more than one rational Admin., 359 interpretation. F. 3d 1190, 1193 Batson v. (9th Cir. supports the Commissioner's conclusion, affirmed; Commissioner Soc. Sec. If the evidence 2004) . the Commissioner must be "the court may not substitute its judgment for that of the Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). DISCUSSION I. The ALJ Properly Considered the Medical Evidence A. Standards for Evaluating Physician's Opinions To reject the examining physician, reasons. uncontroverted opinion of a treating or the ALJ must present clear and convincing Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). If a treating or examining physician's opinion is contradicted by another physician's opinion, legitimate reasons. Cir. 2001). it may be rejected by specific and Tonapetyan v. Halter, 242 F.3d 144, 1148 (9th When evaluating conflicting opinions, an ALJ is not 5 - OPINION AND ORDER required to accept an opinion that is not supported by clinical findings, or is brief or conclusory. Id. at 1149. B. Dr. Sweet Plaintiff argues that the ALJ failed to provide specific and legitimate physician reasons David N. for discounting Sweet, the opinion Ph.D. · On March 17, of 2010, examining Dr. Sweet performed a psychological examination, interviewed the plaintiff, and indicated reviewing medical records from Polk County Mental Health dated January 11, 2010. 1 Plaintiff described a long history of mood swings from minute to minute. Tr. 335. Plaintiff also reported to Dr. Sweet that she has "slight schizophrenia" with a long history of auditory and visual hallucinations in the form of dark shadows and negative voices in her head. Id. Dr. Sweet's mental status examination revealed that plaintiff was oriented to year, season, day, month, date, Tr. 337. She could repeat forward and four correctly. digits three words backwards, state, and city. immediately, and spell six digits the word "world" Id. Plaintiff was unable to perform serial sevens but 1 After careful review of the record, the only treatment notes from Polk County Mental Health is an Adult Behavioral Health Assessment based on examinations on November 24, 2009 and December 1, 2009. Tr. 293-301. In addition, Dr. Sweet indicated that the plaintiff was treated for bipolar disorder, schizophrenia, and attention deficit disorder at Polk County Mental Health; however, the record notes that the plaintiff was diagnosed with post traumatic stress disorder, cannabis dependence, alcohol dependence in early partial remission, and reported history of bipolar disorder. Tr. 301. 6 - OPINION AND ORDER made two correct serial three calculations. Id. Plaintiff also was able to recall two out of three words immediately, could name the current and previous presidents of the United States, but had some difficulty with abstract reasoning. Dr. Id. Sweet diagnosed plaintiff with bipolar disorder, most recent episode unspecified; schizophrenia, paranoid type; attention deficit hyperactivity disorder, primarily inattentive type; and polysubstance dependence in early remission and assigned a Global Assessment Function (GAF) score of 40. 2 Tr. 339. Dr. Sweet noted plaintiff reported significant rapid mood swings, auditory and visual hallucinations and paranoid ideation. Id. Dr. Sweet opined that plaintiff cannot maintain the necessary concentration, pace, and persistence required on a daily basis at a job and that it is difficult for plaintiff to interact with people. Tr. 340. Because non-examining psychologists' opinions contradicted Dr. Sweet's opinion, 3 the ALJ was 2 required to provide specific and a The GAF scale is used to report clinician's judgment of the patient's overall level of functioning on a scale of 1 to 100. A GAF of 31-40 indicates some impairment in reality testing or communication(speech is at times illogical, obscure or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed individual avoids friends, neglects family, and is unable to work). Diagnostic and Statistical Manual of Mental Disorders IV (DSM-IV), p. 31-34 (4th ed. 2000). 3 Dr. Sweet's opinion that plaintiff was unable to maintain the necessary pace, persistence and organization at a job on a daily basis is contradicted by non-examining psychologist Bill Hennings, Ph.D., who opined on March 5, 2010, that plaintiff could maintain concentration, persistence, and pace to perform 7 - OPINION AND ORDER legitimate reasons supported by substantial reject his opinion. record evidence to Bayliss, 427 F.3d at 1216. Lester v. Chater, 81 F.3d 821, 830-831 (9th Cir. 1995). In the decision, the ALJ gave Dr. Sweet's opinion "little weight" because: ( 1) it was primarily based on plaintiff's subjective reporting of symptoms; and (2) the psychological were inconsistent with Dr. Sweet's own examination. Tr. 24. I conclude that the ALJ has provided specific and legitimate reasons to reject Dr. Sweet's opinion. I begin by noting that plaintiff does not challenge the ALJ's negative credibility assessment. It is well-settled that a physician's opinion premised upon a claimant's properly discounted subjective symptoms and limitations may be disregarded. Commissioner of Soc. Sec. Admin., 554 F.3d 1219, 1228 Bray v. (9th Cir. 2009); Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989); Morgan v. Commissioner of Soc. 1999) . The ALJ noted Sec. that Admin., 169 plaintiff F.3d 595, had been 602 (9th Cir. inconsistent in reports of her drug and alcohol use throughout the period at issue. Tr. 21, 274, 310, 320, 338. Despite that plaintiff does not contest the adverse credibility determination, I have carefully reviewed simple repetitive tasks with occasional interaction with the general public and brief interactions with coworkers but is limited from work involving close coordination with coworkers. Tr. 68-70. This opinion was affirmed on reconsideration by Paul Rethinger, Ph.D. Tr. 83. The opinions of Drs. Hennings and Rethinger are unchallenged by plaintiff. Nevertheless, I have reviewed Drs. Hennings and Rethinger's opinions and conclude they are supported by substantial evidence. 8 - OPINION AND ORDER the record in its entirety, and conclude that the ALJ's determination is readily supported by substantial evidence in the record. Plaintiff contends that the inconsistency of drug use reported in the record is not so significant that Dr. Sweet's opinion should be entirely discounted, and that the ALJ erred in rejecting his opinion on this basis. I disagree. Plaintiff's inconsistent reports of drug· and alcohol use support the ALJ' s plaintiff's self-reports are not reliable. conclusion that· Plaintiff attempts to minimize the disparity in her reported length of sobriety to Dr. Sweet in contrast with other providers. However, the record shows that in December of 2011, over a year after Dr. Sweet's March 2010 examination, plaintiff admitted using marijuana on a daily basis. Tr. 475. Additionally, Dr. Suckow's treatment notes show that in July of 2011, he questioned whether plaintiff was using drugs and alcohol when plaintiff reported being arrested for a DUII after taking a friend's medication. Tr. 488. Because the ALJ's interpretation is rational and is supported by substantial evidence in the record as a whole, Molina v. findings Astrue, must be 674 it will not be disturbed. F.3d upheld if 1104, they inferences drawn from the record). 1111 are (9th Cir. supported by See e.g., 2012) (ALJ's reasonable Therefore, I conclude that the ALJ has provided a specific and legitimate reason to discount Dr. Sweet's opinion. 9 - OPINION AND ORDER Additionally, schizophrenia and concentration, it is clear that Dr. his opinions that plaintiff persistence, Sweet's and pace on a difficulty interacting with people, diagnosis of cannot maintain daily basis and has rely in part on plaintiff's subjective reporting of symptoms. See e.g., Morgan v. Commissioner of Soc. Sec. Admin., 169 F.3d 595, 602. (ALJ properly discounted medical opinions based in large part upon claimant's own account of mental health symptoms and limitations). physician to diagnose plaintiff with Dr. Sweet was the only schizophrenia, examination reflects that plaintiff self-reported a schizophrenia. plaintiff Moreover, and his history of experiencing reported hallucinations to Dr. Sweet but denied experiencing these symptoms to nearly' all other treatment providers. Tr. 445-508. January S. 7, indicated 2010, that treatment plaintiff note denied from Leah any mania, Indeed, a Bernard, severe M. D., depression, hallucinations or paranoia, and again on July 23, 2010, plaintiff reported some post-partum depression but denied experiencing hallucinations or mania. Tr. 321, 351-352. Based on the information presented to Dr. Sweet, the ALJ could reasonably find that his opinion was based in part on plaintiff's unreliable self-reports. 4 Plaintiff reported auditory and visual hallucinations one other time, during the adult behavioral health assessment with Polk County Mental Health. Tr. 293-301. Health providers recommended that plaintiff attend less than nine hours of outpatient therapy per week. Tr. 301. 10 - OPINION AND ORDER Second, plaintiff appears to suggest that Dr. Sweet's opinion rested upon his examination subjective symptom reporting. opinion is based examination, on findings, and not plaintiff's According to plaintiff, Dr. Sweet's medical signs he observed during the speech, deficits in including rapid and plaintiff's concentration, and a labile affect. Plaintiff contends that the ALJ selectively cited to evidence supporting the finding of mild to moderate functional limitations while ignoring medical evidence from Plaintiff Dr. further Sweet's maintains examination that to support difficulty with disability. judgment in practical and pragmatic situations and an inability to perform abstract reasoning support Dr. Sweet's opinion that plaintiff cannot maintain adequate concentration, persistence, and pace on a daily basis. Again, I disagree. Although plaintiff disagrees with the ALJ's characterization of Dr. Sweet's examination functional limitations, find that Dr. oriented to the evidence of mild to moderate I conclude that the ALJ could reasonably Sweet's conclusory medical as examination opinion. current As date, was inconsistent with his described above, plaintiff was state, could perform and city, several serial 3 calculations, and could recall two out of three words immediately. Tr. conclusory fashion, 337. In contrast, that plaintiff's Dr. Sweet opined, in a of problems will make it difficult if not impossible for her to maintain competitive 11 - OPINION AND ORDER employment." examination Tr. 339. results Given are. mild that to Dr. Sweet's moderate in mental nature, status the ALJ reasonably found these results were inconsistent with Dr. Sweet's medical opinion that plaintiff was unable to work. Tonapetyan, 242 F.3d at 1149. Even if I were to conclude differently, the ALJ's determination was reasonable evidence in the record, and is supported and must be upheld. by substantial Batson, 359 F.3d at 1193. I conclude that the ALJ's second reason, when combined with the ALJ' s first reason, amounts to specific an.d legitimate support for discounting Dr. Sweet's opinion. Accordingly, the ALJ did not err in evaluating Dr. Sweet's opinion. C. Dr. Suckow Plaintiff argues that the ALJ failed to properly evaluate medical evidence from her treating physician, Joel Suckow, M.D. The record indicates that Dr. Suckow has treated plaintiff since September 21, 2010. Tr. 424. The most recent treatment note from Dr. Suckow is dated March 30, Qualified Mental Health 2012. Tr. Susan M. (QMHP), Practitioner 445. working Polvi, with a Dr. Suckow, interviewed plaintiff and provided a description of the mental status examination assessment report, Suckow. Tr. 433. results. Ms. dated September 21, Ms. Polvi noted Pol vi's 2010, that mental health was signed by Dr. plaintiff was dressed appropriately with adequate hygiene, presented with normal speech, and demonstrated intact memory and fair insight and judgment. Tr. 12 - OPINION AND ORDER 430. In September of 2010, Dr. Suckow initially diagnosed: bipolar disorder I, general anxiety disorder, and polysubstance dependence in sustained partial remission, and assigned a GAF score of 50. 5 Tr. 432. Based on his examination completed on October 8, 2010, Dr. Suckow opined that plaintiff "displayed no specific signs or symptoms that .indicated an acuity needing immediate psychiatric medical intervention." Tr. 414. The ALJ gave Dr. Suckow's October 2010 opinion "significant weight." Plaintiff argues that ALJ gave "significant weight" to a selective medical opinion that supports a finding of non-disability while failing to similarly weigh other medical evidence from Dr. Suckow. I disagree. In the decision, the ALJ cited to Dr. Suckow' s medical treatment notes and the treatment notes of a QMHP working in Dr. Suckow's practice from September 2010 through March 2012. Tr. 18, 21-23. For example, the ALJ cited to Dr. Suckow's treatment note from July 2011, describing Dr. Suckow's decision not to prescribe plaintiff benzodiazepines because plaintiff's history and presentation suggested she might be using drugs again. Tr. 22, 473. The ALJ discussed Dr. Suckow's January 2011 treatment note, where Dr. Suckow noted that plaintiff was completely oriented, had intact 5 A GAF of 41-50 indicates serious symptoms (suicidal ideation, severe obsessional rituals frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., few friends, unable to keep a job). DSM-IV at 31-34. 13 - OPINION AND ORDER memory, and maintained attention during the examination. Tr. 22, 397. The ALJ further indicated that Dr. Suckow noted in December 2011, that plaintiff reported using marijuana to help with her appetite. Tr. _22. The ALJ also cited to Dr .. Suckow's August 2011 note, where he indicated that plaintiff desired to restart therapy after previously being closed to therapy after a no-show in excess of 90 days. Tr. 22 .. The ALJ also considered Dr. Suckow's GAF score of 51 6 on October 8, 2010. Tr. 18. In sum, Dr. Suckow thought processes, mania. generally intact memory, noted logical and concrete and no signs of psychosis or See, e.g., Tr. 390, 402, 472, 484, 490. The ALJ noted that "treatment notes s.how that when the claimant maintains sobriety from drugs and alcohol as well as complies with mental health treatment, her Tr. 22. Tr. 390, 402, as whole, support conclude this that symptoms conclusion. when improved." See viewing e.g., the record Dr. a Suckow' s 480, the notes 483. I ALJ' s evaluation of Dr. Suckow's notes are consistent with the overall mild mental status examination findings in the record. Plaintiff also contends that the ALJ failed to explain why the diagnosis of attention deficit disorder was not included in the finding of severe impairments at step two or considered in the RFC 6 A GAF of 51-60 indicates moderate symptoms (flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). DSM-IV at 31-34. 14 - OPINION AND ORDER finding. Dr. Sweet attention deficit disorder. Tr. and Dr. disorder Suckow or 339 and 391. diagnosed attention plaintiff deficit with hyperactivity "ALJ's inquiry at step two "is a de minimis screening device to dispose of groundless claims."" Smolen v. 80 F.3d 1273, Chater, 1290 (9th Cir. 1996). Once a claimant meets the threshold determination of having a valid disability claim, the sequential evaluation process continues. 20 C.F.R. § 416.920(a) (4). Step two was resolved in plaintiff's favor when the ALJ found that plaintiff has a severe mental impairment. The ALJ also indicated that "the record contains a variety of diagnoses, which share symptoms. [The ALJ) has considered all symptoms regardless of the actual diagnosis." Tr. 18. As discussed above, the ALJ must consider limitations imposed by all of a claimant's impairments, even those that are not severe. Valentine, 574 F.3d at 691-93 (ALJ appropriately accounted for limitations in the RFC). The ALJ' s decision discussed below, as well as Dr. Hennings' medical opinion, supports the conclusion that attention deficit disorder and any resulting symptoms were factored into the RFC finding. Thus, plaintiff's argument fails. Finally, plaintiff contends that the ALJ erred in failing to include the alleged limitation considering Dr. Suckow' s medical statement source assistant working with Dr. 15 - OPINION AND ORDER related to work opinion contained in a from Kylie Suckow. Fonteno, stress Feb. a 25, when 2011 physician's The medical source statement from Ms. Fonteno notes that the psychiatric portion was filled out by Dr. Suckow, but Dr. Suckow did not sign the statement. Tr. 438439. The medical source statement indicates that plaintiff has a moderate limitation in handling work stress. Tr. argues in a conclusory fashion that althbugh Dr. 439. Plaintiff Suckow did not sign the medical source statement, Dr. Suckow concurred with this opinion because Ms. Fonteno works with Dr. Suckow. Plaintiff's Suckow, Dr. argument fails. Although Ms. Fonteno works with Dr. Suckow provided his own treatment notes and opinions. Tr. 410-415, 427432. Dr. Suckow's own records do not contain any discussion of a moderate limitation in plaintiff's ability to deal with work stress, and there is no evidence in the record before me indicating that Dr. Suckow endorsed Ms. Fonteno's opinions. Moreover, the record contains no actual treatment notes from Ms. Fonteno, and instead contains only the Feb. 25, 2011 medical source statement. Tr. 443. The ALJ considered Ms. Fonteno's entire report and accorded it "little weight" consistent with the medical evidence. Tr. supported by substantial evidence. 402, 408, challenge 413, 424, the ALJ' s 484, statement. 16 - OPINION AND ORDER of Ms. it was not 24. This rationale is See, e.g., Tr. 495. Tellingly, treatment because 390, 394, 397, the plaintiff does not Fonteno' s medical source In sununary, I conclude that the ALJ did not err in evaluating Dr. Suckow' s opinion, and has provided specific and legitimate reasons backed by substantial evidence in the record as a whole, for according his opinion significant weight. D. Riley Crowder Plaintiff argues that the ALJ did not consider treatment notes and opinions from Riley Crowder, a QMHP working in Dr. Suckow's office. The ALJ is required to account for competent lay witness testimony, and if it is rejected, provide germane reasons for doing so. Valentine, 574 F.3d at 694. Contrary to plaintiff's suggestion the ALJ discussed Ms. Crowder's group therapy notes, although the ALJ did not identify Ms. Crowder by name in the decision. Tr. 23. As the ALJ accurately changes and reduced depression. Suckow' s treatment including Ms. considered. notes Crowder' s See, indicated, were plaintiff Tr. 445-453. 21-23, 390, Crowder' s 402, 472, 484, is clear that the ALJ notes, 490. Ms. but she did not include any opinion regarding functional limitations. Tr. It Dr. all of which the ALJ Crowder discussed plaintiff's. treatment goals, 462-464. positive In addition, similar to Ms. GAF score of 50, e.g., Tr. reported considered Ms. Crowder's treatment notes. II. The ALJ Did Not Err in Assessing the RFC Plaintiff also argues that the ALJ erred by failing to include plaintiff's moderate mental functional limitations into the RFC. 17 - OPINION AND ORDER According to plaintiff, the ALJ was required to translate the step three paragraph B findings into work-related functions in the RFC. Plaintiff argues relating to that her the memory ALJ failed problems, to math include skills, limitations and abstract reasoning into the RFC. Plaintiff's argument misses the mark. An ALJ' s supported by consistent testimony. RFC need only substantial with the incorporate evidence restrictions Stubbs-Danielson v. in the credible record identified Astrue, in limitations and must the 539 F.3d 1169, be medical 1174 (9th Cir. 2008); see Bayliss, 427 F.3d at 1217 (the ALJ is only required to identify specific, credible limitations in the RFC; "[p] reparing a function-by-function analysis for medical conditions or impairments that the ALJ found neither credible nor supported by the record is unnecessary"). However, plaintiff cites mental status examination results rather than actual functional limitations assessed by a medical source. Tr. 337-339. See Pl. Br. 9-10. In this case, in the RFC, the ALJ limited plaintiff to "simple" routine work as defined in 20 C.F.R. § 416.968(a). Dr. Sweet opined that the claimant would not have the ability to maintain concentration, persistence, and pace, but as discussed above, opinion little weight. the ALJ appropriately gave this medical Tr. 339-340. Aside from Dr. Sweet's appropriately discredited opinion, plaintiff does not identify any specific, credited 18 - OPINION AND ORDER medical evidence establishing greater limitations. Indeed, the unchallenged credited medical evidence establishes otherwise. When fashioning plaintiff's RFC, specifically discussed the evidence from agency the ALJ non-examining physicians, who opined that plaintiff is capable of performing ''at least simple completed a routine tasks." Psychiatric Tr. Review 316. Bill Technique and Hennings, Mental Ph.D. Residual Functional Capacity Assessment (MRFC) on March 5, 2010. Tr. 67-70. In the MRFC, Dr. Hennings opined that limitations in only one category: ( 1) plaintiff had moderate the ability to carry out detailed instructions. Tr. 69. Importantly, Dr. Hennings indicated that plaintiff was not significahtly limited in her "ability to complete a normal work-day and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods." October 13, 2010, Paul Rethinger, Ph.D. affirmed Dr. Id. On Hennings's MRFC. Tr. 83. Citing the evaluations by Ors. Hennings and Rethinger, the ALJ gave the opinions that plaintiff was limited to simple routine tasks "significant weight." Tr. 24. Additionally, the ALJ found that when plaintiff is medication compliant and maintains sobriety from drugs and alcohol, her symptoms improved. discussed treatment notes from Dr. Suckow, Tr. 22. The ALJ plaintiff's treating mental heal th physician, that consistently indicated normal speech, normal psychomotor activity, logical thought process, intact memory 19 - OPINION AND ORDER and maintained attention. Tr. 22, 397, 402, 405, 430, 435, 484. The ALJ's findings are supported by substantial evidence. Therefore, the RFC limiting plaintiff to simple and routine tasks was consistent with the credited medical evidence of record and relevant specific Ninth medical Circuit law. testimony Plaintiff establishing has identified no limitations in concentration, persistence, and pace that were not accounted for in the ALJ's decision. The ALJ was not required to include plaintiff's alleged limitations with memory, math skills, and abstract reasoning into the RFC. Accordingly, I find no error in the ALJ's RFC assessment. III. The ALJ Did Not Err in the Hypothetical Posed to the VE Likewise, plaintiff contends that the ALJ's hypothetical to the VE did not include limitations in math skills, and that the VE identified jobs that require math skills beyond plaintiff's demonstrated ability. Plaintiff's argument is misplaced. Plaintiff again conflates examination findings with actual functional limitations. The ALJ is required to pose a hypothetical composed of only limitations that the ALJ found credible and supported by substantial evidence in the record. Bayliss,427 F.3d at 1217; see also Magallanes v. Brown, 881 F.2d 747, 756-57 Cir. 1989) (holding that it is proper for an ALJ to (9th limit a hypothetical to restrictions supported by substantial evidence in the record) . In his examination,. Dr. 20 - OPINION AND ORDER Sweet noted a finding of difficulty in performing some mathematical calculations, which he then translated into a functional limitation that plaintiff was unable to maintain concentration, persistence; and pace on a daily basis. Tr. 337, 339. I should note that at the time of Dr. Sweet's examination, plaintiff had significantly reduced her medications due to her pregnancy. Tr. 338. As discussed above, the ALJ appropriately accorded Dr. Sweet's opinion "little weight," and the. overall record indicates relatively normal findings relating to maintaining concentration. Tr. 390, 402, 480, 483. Thus, the ALJ did not err in posing a hypothetical to the VE and identifying other jobs that plaintiff can perform at step five. Moreover, the job of "garment sorter" identified 7 by the VE does not require substantial use of math skills. A mathematical development level of two, as cited by plaintiff, is part of the DOT 7 The ALJ found two jobs, "garment sorter" and "line packaging worker" that plaintiff could perform at step five, based on .VE testimony. However, the DOT number given by the VE does not match the job title of "line packaging worker." Relying solely on the "garment sorter" job, the VE identified 49,000 jobs nationally and 700 jobs in Oregon. Tr. 25. The ALJ appropriately concluded that garment sorter job exists in significant numbers. Compare Beltran v. Astrue, 700 F.3d 386, 389-390 (9th Cir. 2012) (holding that 135 jobs regionally and 1,680 jobs nationally did not constitute a significant number of jobs that plaintiff could perform) with Moncada v. Chater, 60 F.3d 521, 524 (9th Cir. 1995) (holding that 2,300 jobs in San Diego County and 64,000 jobs nationally constitute a significant number of jobs that plaintiff could perform) and Mitchell v. Colvin, No. 13-35059, 2014 WL 3866458, at *2 (9th Cir. Aug. 7, 2014) (finding that 1,300 regional and 41,000 national jobs constitutes a significant number of jobs). Thus, the ALJ did not err in his step five finding. 21 - OPINION AND ORDER General Educational Development aspects of education which (GED) are scale that "embraces those required of the worker for satisfactory job performance." Dictionary of Occupational Titles (DOT), Appendix C §III. "The GED definition trailers describe the level of education ... generally required for the job; GED trailers may inform but do not necessarily impose job requirements." Chase v. Colvin, No. 1:12-CV-00884-AA, 2013 WL 3821630, at *3 (D. Or. July 22, 2013). In Chase, the court held that the jobs identified by the VE did not require any computation or use of math skills based on the duties described for each job in the DOT. Id. The DOT describes the duties of a garment sorter as "sorts finished garments such as shirts, dresses, recorded sorter] on and pajamas, tags and labels according to lot and size numbers attached to garments. [A garment may fold and package garments in boxes and bags." DOT §222.687-014. Similar to Chase, I conclude that as described in the DOT, "garment sorter" does not involve any computation or math skills beyond plaintiff's math skills. Id. Thus, the ALJ's finding that plaintiff can perform the job of "garment sorter" is supported by substantial evidence. I have not therefore, the identified any error committed by the ALJ and hypothetical posed to the VE contained all the limitations deemed credible by the ALJ and supported by substantial evidence in the record. 22 - OPINION AND ORDER Accordingly, the ALJ could rely upon the VE testimony. Valentine, 57 4 F. 3d at 694; Stubbs-Danielson, 539 F.3d at 1175-76. CONCLUSION For the reasons decision is AFFIRMED. stated above, the Commissioner's final This action is DISMISSED. IT IS SO ORDERED. DATED this /?day of NOVEMBER, 2014. Mt04--A Malcolm F. Marsh United States District Judge 23 - OPINION AND ORDER
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