Cooper v. Commissioner Social Security Administration, No. 6:2011cv06328 - Document 16 (D. Or. 2012)

Court Description: Opinion and Order - The decision of the ALJ is AFFIRMED. IT IS SO ORDERED. Signed on 11/15/2012 by Judge Malcolm F. Marsh. (See Opinion and Order, 21-pages) (ecp)

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Cooper v. Commissioner Social Security Administration Doc. 16 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON JASON C. COOPER, Plaintiff, 6:11-cv-06328-MA OPINION AND ORDER v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. KATHRYN TASSINARI 1700 Valley River Drive Eugene, Oregon 97401 Attorney for Plaintiff S. AMANDA MARSHALL United States Attorney ADRIAN L. BROWN Assistant United States Attorney 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97204-2902 SCOTT T. MORRIS Special Assistant United States Attorney Office of the General Counsel Social Security Administration 1301 Young Street, Suite A-702 Dallas, Texas 75202 Attorneys for Defendant 1 - OPINION Dockets.Justia.com MARSH, Judge Plaintiff, Jason C. Cooper, brings this action for judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying his applications for disability insurance benefits (DIB) under Title II of the Social Security Act (the Act) and Supplemental Security benefits under Title XVI of the Act. 1383f. Income 42 U.S.C. (SSI) §§ disability 401-434, 1381- This court has jurisdiction pursuant to 42 U.S.C. and 1383 (c) (3). For the reasons set forth below, §§ 405(g) I AFFIRM the final decision of the Commissioner. PROCEDURAL BACKGROUND February On 2008, 26, plaintiff protectively filed applications for SSI and DIB alleging disability due to ''heart, neurological, and stomach difficulties including fatigue, weakness, and memory problems." Tr. 111, 115, 141. The Commissioner denied plaintiff's application initially and upon rehearing. A hearing before an Administrative Law Judge (ALJ) was held on September 23, 2010, in Eugene, counsel and Jeffrey F. Oregon, at which plaintiff was represented by testified. Tittlefitz Additionally, was present Vocational throughout Expert the hearing (VE) and testified. On October 14, 2010, the ALJ issued a decision plaintiff not disabled within the meaning of the Act. 2 - OPINION finding After the Appeals Council denied review, plaintiff timely filed a petition for review in this court. FACTUAL BACKGROUND Born on April 18, 1973, plaintiff was 33 years old on the alleged onset date of the disability, and 37 years old on the date of the hearing. Tr. 29, 110, Plaintiff has the equivalent of a high school diploma, and has past relevant work experience as a gas station attendant, parking lot attendant and valet, and floor attendant in a casino. Tr. 31, 39. Plaintiff alleges his various conditions became disabling on June 7, 2006. Tr. 111-17. Plaintiff has been seen by several doctors, although his primary care physician throughout much of the relevant period was Hsiang-Sen R. Yeh, M.D. therapist, Nancy Gentry, Functional Capacity (RFC) licensed psychologist, Dr. Dorothy Anderson, M.S.W., prepared Ph.D., a Ryan Assessment. performed a Plaintiff's clinical Mental Scott, Residual Ph.D., a Psychodiagnostic Evaluation. prepared a Psychiatric Review Technique and Mental RFC Assessment, and Mary Ann Westfall, M.D., prepared a Physical RFC Assessment. THE ALJ'S DISABILITY ANALYSIS The Commissioner has established a five-step process for determining whether a person is disabled. Yuckert, 482 u.s. 404.1520(a) (4) (i)-(v), 3 - OPINION 137, 140-42 (1987); 416.920 (a) (4) (i)- (v). 20 sequential Bowen v. C. F. R. Each §§ step is potentially dispositive. Steps One through Four. Cir. 1999). show that The claimant bears the burden of proof at Tackett v. Apfel, 180 F.3d 1094, 1098 (9th The burden shifts to the Commissioner at Step Five to a significant number of jobs economy that the claimant can perform. exist in the See Yuckert, national 482 U.S. at 141-42; Tackett, 180 F.3d at 1098. At Step One, the ALJ determined that plaintiff has not engaged in substantial gainful activity since the alleged onset date, June 7, 2006. See 416.920(a) (4) (i), At Step palpations, disorder ( PTSD) C. F.R. 404.1520 (a) (4) (1), §§ (b) 1 (b); Tr. 13. Two, type 20 I the determined bipolar disorder, were 404.1520 (a) (4) (ii), ALJ severe (c), that plaintiff's heart and post-traumatic stress impairments. 416.920 (a) (4) (ii), See 20 C. F. R. (c); Tr. §§ 13. In addition, the ALJ found that plaintiff's history of alcohol use, Barrett's esophagus, gastroesophageal reflux disease (GERD), and sleep apnea were non-severe impairments that the ALJ considered in arriving at plaintiff's RFC. Tr. 13-14. At Step Three, the ALJ found that plaintiff did not have an impairment or combination of impairments that met or medically equaled any listed impairment. See 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926; Tr. 14-15. The ALJ determined that plaintiff had the medium work as defined in 20 C.F.R. 4 - OPINION §§ RFC to perform 404.1567(c) and 416.967(c) subject to the limitations that the plaintiff cannot climb ladders, ropes, or scaffolds; have exposure to hazards; work closely with others; or have more than occasional contact with the general public. Tr. 15-19. The ALJ found that plaintiff can understand, remember, and carry out simple instructions, and occasionally climb stairs and ramps, balance, stoop, kneel, crouch, or crawl. At Step perform any Four, past the ALJ relevant found work. that See plaintiff is 20 §§ C.F.R. Id. unable to 404.1565, 416.965; Tr. 19. At Step Five, however, the ALJ found that there are jobs that exist in significant numbers in the national economy that plaintiff can perform, including janitor, hand packager, and bottle packer. See 20 C.F.R. §§ 404.1569, 404.1569(a), 416.969, 416.969(a); Tr. Accordingly, the ALJ found that plaintiff was not disabled 20. within the meaning of the Act. ISSUES ON REVIEW Plaintiff asserts the ALJ erred in five ways. First, plaintiff argues that the ALJ improperly discredited plaintiff's testimony. discounted therapist. Second, the plaintiff asserts opinion Third, of plaintiff Ms. that Gentry, contends the ALJ improperly plaintiff's that the ALJ clinical erred by discounting the opinion of Dr. Scott, the examining psychologist. Fourth, plaintiff argues that the ALJ erroneously failed to include 5 - OPINION his gastrointentinal problems, including irritable bowel syndrome, as a severe impairment at Step Two, and consider them in the RFC. Finally, plaintiff claims that the Commissioner failed to meet its burden of proving that plaintiff can perform other work. STANDARD OF REVIEW The 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); Andrews v. 1039 Shalala, 53 F. 3d 1035, 42 u.s.c. (9th Cir. § 1995) . "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." court must weigh all of the evidence, whether detracts from the Commissioner's decision. 807 F.2d 771, 772 (9th Cir. 1986). to more than one rational decision must be upheld. supports The or Martinez v. Heckler, If the evidence is susceptible interpretation, Andrews, it Id. the Commissioner's 53 F.3d at 1039-40. If the evidence supports the Commissioner's conclusion, the Commissioner must be affirmed; "the court may not substitute its judgment for that of the Commissioner." 1156 (9th Cir. 2001). Ill Ill Ill 6 - OPINION Edlund v. Massanari, 253 F.3d 1152, DISCUSSION I. Step Two Plaintiff argues that the ALJ failed to include his gastrointestinal conditions, specifically his alleged IBS, at Step Two. At Step Two, the ALJ must determine whether a claimant has one or more impairments that significantly limit his or her ability to conduct basic work activities. 1002, 1003 Ukolov v. Cir. 2005); 20 C.F.R. §§ Barnhart, 420 F.3d 404.1520(c), 404.1521. In this case, the ALJ resolved Step Two in plaintiff's favor, concluding that plaintiff had demonstrated impairments (heart palpations, type I bipolar disorder, and PTSD) necessary to satisfy Step Two. The ALJ continued the sequential decision-making process until reaching a determination at Step Five. Thus, any error in failing to include plaintiff's IBS at Step Two did not prejudice him at that step, as Step Two was resolved in his favor. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) Lewis v. (any failure to list bursitis as severe at Step Two was harmless error where the ALJ considered functional limitations of bursitis at Step Four); Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005) (any error in omitting obesity from list of severe impairments at Step Two was harmless because Step Two was resolved in claimant's favor). any error in failing harmless. 7 - OPINION to find his IBS a severe Thus, impairment was To the extent plaintiff contends the ALJ failed to consider his IBS in the RFC, I address the issue below. 404.1523 (once claimant has consider the functional See 20 C.F.R. surmounted Step Two, limitations imposed by § the ALJ must all medically determinable impairments in the remaining steps of the decision) . II. RFC A. Rejection of Plaintiff's Testimony In deciding whether to accept subjective symptom testimony, an ALJ must perform two stages of analysis. 416.929. evidence First, the claimant of an underlying must 20 C.F.R. produce impairment that expected to produce the symptoms alleged. F. 3d 1273, 1281-82 (9th Cir. 1996). §§ 404.1529, objective medical could reasonably be Smolen v. Chater, 80 Second, absent a finding of malingering, the ALJ can reject the claimant's testimony about the severity of his symptoms only by offering specific, convincing reasons for doing so. clear and Id. at 1281. If an ALJ finds that the claimant's testimony regarding his subjective symptoms is unreliable, the "ALJ must make a credibility determination citing unpersuasive." Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). the reasons In doing so, why the testimony is the ALJ must identify what testimony is credible and what testimony undermines the claimant's complaints, and make "findings sufficiently specific to permit the 8 - OPINION court to conclude that the ALJ did not arbitrarily discredit the claimant." Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). In a Function Report submitted on March 3, 2008, plaintiff stated that he "can't do much of anything anymore." Tr. 161. Plaintiff reports that his typical daily routine is to try to walk approximately two blocks after waking up and eating, then rest the Tr. 156. remainder of the day. Sometimes, plaintiff stated, he goes to addiction recovery meetings. Id. Plaintiff testified that his disability interferes with his ability to dress, bathe, groom himself, and make food from scratch. Tr. 157. Plaintiff reported that he goes shopping one time per month for approximately 30 minutes, but is too weak to do other house or yard work. Plaintiff 59. stated he that hallucinations, depression, and mania. experiences Tr. 158delusions, Tr. 162. At the hearing, plaintiff testified that he has panic attacks three or four times per week, hours. Tr. 46. lasting for between three and ten Plaintiff reported that most of the panic attacks occur while he is home alone, but also are frequently triggered by going out in public. Plaintiff stated that his bipolar disorder caused him to be depressed most of the time, with periodic manic episodes. prescribed Tr. 47. medications Plaintiff testified that none of his worked. Tr. 48. As to his daily activities, plaintiff testified that he spent most of his days in bed, while 9 - OPINION receiving visits from Ms. Gentry, his clinical therapist, once a week. Tr. 48-51. Finally, plaintiff stated that he had attempted suicide previously, with the most recent attempt occurring less than one year before the hearing, but that he did not tell anybody at the time. Tr. 52. The ALJ rejected plaintiff's testimony as to the severity of the symptoms associated with his various ailments. make a finding that plaintiff was malingering. was required to identify clear discounting plaintiff's testimony. and The ALJ did not Therefore, the ALJ convincing Smolen, reasons for 80 F.3d at 1281. I find the ALJ's reasons readily meet this standard and are supported by substantial evidence in the record. The ALJ cited numerous instances of inconsistency between plaintiff's statements and his alleged symptoms. that throughout physician, Dr. stabilizing. 2008, plaintiff reported Yeh, that depression Tr. 16. his to The ALJ noted his and primary care anxiety were On April 25, 2008, plaintiff reported that his mental health was much improved, with much less anxiety, that he felt "the best since several years ago.• Tr. 334. and At his next appointment on May 30, 2008, plaintiff reported that his mood had been steady, and that he was slowly going back to work. 332-33. Nonetheless, plaintiff asked Dr. Depakote due to high costs, were Yeh to take him off and because the Paxil and trazodone "taking care of his condition. • following appointment on September 10, 10 - OPINION Tr. Similarly, 2008, at his plaintiff reported that his "mood has been steady and he has been able to work. " 1 330. his Tr. Despite reporting in May that the Paxil was taking care of condition September and continuing appointment, to plaintiff stabilize asked to his be because it was causing erectile dysfunction. mood, taken at off the Paxil. Id. The ALJ also discussed that plaintiff reported to a therapist on April 13, 2009 that he was afraid to leave the house on a daily basis, and that he had been suffering from such fears all his life. Tr. 16, 416. The ALJ noted plaintiff stated at that time that panic attacks were occurring between three and four times per day, and that it had been "worse in the last couple of years." Tr. 416. The ALJ reasonably found the report that his anxiety had been "worse in the last couple years" was inconsistent with plaintiff's reports of improvement to Dr. Yeh throughout 2008. Id. The ALJ also discredited plaintiff on the basis of his lack of candor regarding his mental impairments to a treatment provider, Marlon Fletchall, M.D. Tr. 17. At the hearing, plaintiff testified that he failed to report his mental health issues to Dr. Fletchall people. because Tr. 45. cancelled he tries keep his impairments from most Additionally, the ALJ pointed out that plaintiff approximately 1 to one-third of his scheduled counseling Plaintiff later explained that this statement was not true, and that he likely made it to give Dr. Yeh the impression that plaintiff could pay his medical bills. (Tr. 34, 355.) This explanation does little to rehabilitate plaintiff's credibility. 11 - OPINION appointments. Tr. 17, 414. The ALJ also noted that plaintiff claimed to have quit his last job due to his mental impairments, but he never discussed that with his employer. Tr. 16, 45. The ALJ could reasonably infer from these facts that plaintiff's mental impairments were not as severe as alleged. The ALJ also indicated that the record contained no mental health records from April 2009 through April 2010, suggesting that plaintiff was not undergoing mental health treatment during a yearlong period during which plaintiff alleges disability. Tr. 17. An unexplained failure to seek medical treatment is a proper basis upon which to discredit a plaintiff's subjective testimony. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). In sum, I find the ALJ's reasons for discounting plaintiff's testimony, taken together, constitute clear and convincing reasons, supported by substantial evidence in the record, upon which the ALJ could discount plaintiff's testimony. B. Social Worker Nancy Gentry's Opinion A clinical therapist who is not working in conjunction with a physician is considered an "other source," which the discount upon providing reasons germane to the witness. v. Comm'r of Soc. Sec., 613 F.3d 1217, 1224 C.F.R. §§ 404.1513(d) (3), 416.913(d) (3). (9th Cir. ALJ may See Turner 2010); 20 Plaintiff agrees that Ms. Gentry is an "other source," but contends that the ALJ should have given her opinion greater weight. 12 - OPINION Ms. Gentry submitted a Mental RFC Assessment in which she stated that plaintiff "would have difficulty working at this time due to his moderate to severe symptoms of depression, anxiety, and Tr. panic attacks." 461. In addition, April 13, 2010 assessment of plaintiff. Ms. Gentry attached an Tr. 464-71. The ALJ discredited Ms. Gentry's opinion because it relied on plaintiff's self-reporting, which the ALJ found to not be credible. An ALJ may reject plaintiff's a therapist's subjective discredited. opinion self-reporting if which it is has based on a been properly See Williamson v. Comm'r of Soc. Sec., 428 Fed.Appx. 609, 2011 WL 2421147 at *1 (9th Cir. 2011); Bell-Shier v. Astrue, 312 Fed.Appx. Additionally, 45, as 2009 the ALJ WL 319694 noted, at there *2 is (9th little Cir. 2009). evidence treatment history from April of 2009 through April of 2010. 18. Therefore, I find the ALJ has provided adequate, of Tr. germane reasons for rejecting Ms. Gentry's opinion. C. Dr. Scott's Opinion Plaintiff argues that the ALJ erred in discounting the opinion of Dr. Scott, an examining physician. physician is generally entitled to greater weight than a non- examining physician. 1995) . The opinion of an examining Lester v. Chater, 81 F.3d 821, 830 (9th Cir. The ALJ must provide clear and convincing reasons for rejecting the uncontradicted opinion of an examining physician. Id. If the examining physician's opinion is contradicted by that 13 - OPINION of another doctor, the ALJ must present specific and legitimate reasons supported by substantial evidence in the record to discount the opinion of the examining physician. Id. at 830-31. An ALJ may only reject the testimony of an examining physician in favor of a non-examining physician upon presenting specific, legitimate reasons, supported by substantial record Lester, 81 F.3d at 831 (quoting Roberts v. Shalala, 184 (9th Cir. 1995)). evidence. 66 F.3d 179, A contradictory opinion of a non-examining physician alone is not substantial evidence sufficient to reject the opinion of an examining physician. Lester, 81 F.3d at 831; Canterbury v. Astrue, No. 3:11-cv-00293-AC, 2012 WL 1801911 at *7 (D. Or. Mar. 22, 2012). The opinion of a non-examining physician may serve as substantial evidence where the opinion is consistent with other clinical findings or other evidence in the record. Thomas v. Barnhart, 278 F. 3d 947, 957 (9th Cir. 2002). The parties disagree as to whether the ALJ was required to provide clear and convincing reasons or specific and legitimate reasons to discount Dr. Scott's opinion. plaintiff's records, and conducted an Dr. Scott reviewed interview with plaintiff where he administered a series of structured questions and three questionnaires. Tr. 342-49. Dr. Scott evaluated plaintiff on October 21, 2008, one month after plaintiff told Dr. Yeh that his "mood has been steady and he has been able to work." Dr. Scott found that, 14 - OPINION "[b]ased on [plaintiff's] Tr. 330, 342. self-report and involvement with the clinical interview, it is this writer's opinion that he does appear to have significant impairment with bipolar disorder and posttraumatic stress disorder, both of which have caused him difficulties in maintaining employment." Tr. 346. Dr. Scott's opinion was contradicted by Dr. Dorothy Anderson, a non-examining, found that in reviewing psychologist. simple it appears claimant would be able to persist task jobs or general involvement Assessment of that notably do not public." plaintiff, ability to work was respects, Dr. Anderson Tr. 362. not Dr. require Tr. Anderson lot of In her 362. found including the ability and to perform at a to coworker Mental that RFC plaintiff's significantly impaired in a workday and workweek without interruptions based symptoms a complete number of a normal from psychologically consistent pace without an unreasonable number and length of rest periods. Tr. 373. In fact, Dr. Anderson only found plaintiff had three functional limitations: a moderate limitation in the ability to understand and remember detailed instructions, a marked limitation in the ability to carry out detailed instructions, and a moderate limitation in the ability to interact appropriately with the general public. Tr. 372-73. The opinions of Dr. Anderson and Dr. Scott, then, contradict each other as to limitations. upon the Thus, presenting 15 - OPINION extent of plaintiff's work-related the ALJ may only reject Dr. specific and legitimate mental Scott's opinion reasons supported by substantial evidence in the record. See Lester, 81 F.3d at 831. I conclude that the ALJ did so. The ALJ gave Dr. Scott's assessment little weight because the assessment was based on plaintiff's self-reporting, which the ALJ properly found to lack credibility, and was a one-time interview. Tr. As 18. the ALJ noted, Dr. Scott's opinion relies almost While Dr. exclusively on plaintiff's subjective self-reporting. Scott appears to have compiled plaintiff's background information from his review of the record, many of those documents - such as Dr. also relied Additionally, Yeh's while records complaints. constituted objective testing, relied upon plaintiff's on plaintiff's the subjective structured questions the three questionnaires largely self-reporting. Tr. 344-45. Most importantly, Dr. Scott's conclusion that plaintiff is significantly impaired primarily refers to the questionnaires and plaintiff's self-reports. Tr. 346. Notably, on the Personality Assessment Inventory, Dr. Scott reported that the results were invalid •likely due to either a deliberate attempt warranted, or to that appear more [plaintiff) pathological is experiencing psychopathology to the degree of using the help.'" Tr. 345. Thus, it appears than that PAI Dr. as would be significant a 'cry for Scott also had questions about the reliability of plaintiff's self-reporting, but did not account 16 - OPINION for this in his conclusion. The ALJ could reasonably find that Dr. Scott's opinion was based on plaintiff's subjective self-reporting, which the ALJ properly discredited. The ALJ also gave Dr. Scott's opinion less weight because Dr. Scott interviewed plaintiff only once. Tr. 18. The length of the treatment relationship and frequency of examination is one of the factors ALJs use to assign weight to medical opinions. §§ 404.1527 (c) (2) (i), (e) (1) (ii), 20 C.F.R. 416.927 (c) (2) (i), (e) (1) (ii). While this reason alone would be insufficient to reject Dr. Scott's opinion, in combination with the reasons discussed above, the ALJ did not err in giving Dr. Scott's opinion less weight because he was only a one-time examining psychologist. I conclude that these reasons for giving Dr. Scott's opinion less weight are specific and legitimate, and supported by substantial evidence in the record. See Lester, 81 F.3d at 830-31. D. Gastrointestinal Issues Plaintiff argues that the ALJ failed to adequately account for his gastrointestinal difficulties in the RFC. Plaintiff complains that the ALJ failed to specifically discuss his alleged IBS in the RFC, and to properly consider his attendant functional limitations of unpredictable bouts of pain with constipation and diarrhea. In the decision, the ALJ noted plaintiff's complaints that his gastrointestinal stomach pain, the ALJ cause him constipation, rendering him unable to work. found 17 -OPINION issues that the objective medical diarrhea, Tr. 17. and Ultimately evidence did not corroborate ailments. plaintiff's allegations concerning his abdominal Id. As the ALJ discussed, plaintiff complained to doctors about suffering from abdominal pain numerous times, repeated complaints there was complaints in January, findings but despite these still no clear etiology for February, or March of 2009. his The ALJ' s in this regard are supported by substantial evidence. Plaintiff's abdominal examinations were objectively unremarkable on a consistent basis. 451. Tr. 197, 231, 196-97, 388-89, 398, 431, For example, on January 13, 2009, Dr. Mark A. Litchman noted a probable IBS diagnosis, but that a gastrointestinal evaluation was necessary for confirmation. ultrasound on March 2, 450. Tr. 396. A subsequent abdominal 2009 showed no remarkable findings. Tr. Plaintiff was noted to be scheduled for an endoscope in February of 2009. On February 19, 2009, Dr. John R. Ford reported that plaintiff's colonoscopy was unremarkable, but that biopsies indicated Barrett's esophagus. Tr. 453. There is no record of plaintiff complaining of alleged IBS symptoms to his treatment providers thereafter. The ALJ functional found that limitations plaintiff caused by did his not complain diagnoses of of any GERD and Barrett's esophagus- findings that plaintiff does not challenge. I disagree with plaintiff's suggestion that the ALJ erred in failing to discuss plaintiff's alleged IBS specifically, by name. 18 - OPINION The ALJ did discuss plaintiff's gastrointestinal issues and his only alleged functional limitations - constipation and diarrhea when fashioning plaintiff's RFC. 911; Tr. 17. The ALJ See Lewis v. Astrue, 498 F.3d at detailed plaintiff's medical records concerning his gastrointestinal issues and the ALJ's findings are supported by substantial evidence. Tr. 17. Here, the only evidence supporting plaintiff's IBS symptoms were his subjective complaints. credibility evidence, and it was the lack not of error Considering plaintiff's lack of corroborating for the ALJ to objective medical reject plaintiff's alleged limitations associated with the effects of his alleged IBS in the RFC. V. See Burch, 400 F.3d at 681-84. Ability to Perform Other Work When an ALJ finds that the claimant's impairments preclude him from performing past relevant work, the burden shifts to the Commissioner at Step Five to show that the claimant can perform other work that exists in significant economy. 1071 Lockwood v. Comm'r Social Sec. Admin., (9th Cir. having a 2010). vocational 1101 (9th in the national 616 F.3d 1068, The Commissioner can meet this burden by expert vocational hypothetical. 1094, numbers Cir. Id. testify at the hearing based on a (quoting Tackett v. Apfel, 180 F.3d 1999)). A vocational hypothetical is sufficient if it includes all of the claimant's limitations that are supported by substantial evidence in the record. 19 - OPINION See Bayliss v. Barnhart, exclude record. 427 F.3d 1211, 1217-18 (9th Cir. 2005). An ALJ may limitations unsupported by substantial evidence in the Id. At the hearing, the VE testified that plaintiff could perform work that existed in significant numbers in the national economy based on the RFC and hypotheticals posed by the ALJ. Plaintiff argues that the ALJ erred in failing to incorporate the limitations found in the opinions of Ms. Gentry and Dr. Scott, as well as the plaintiff's testimony. In addition, plaintiff argues that the vocational hypothetical was insufficient because the RFC failed to account for plaintiff's IBS. For the reasons discussed above, I have concluded that the ALJ did not err in assessing plaintiff's credibility and the opinions of Ms. Gentry and Dr. Scott, or rejecting the alleged limitations of plaintiff's IBS in the RFC. Accordingly, the limitations included in the RFC and hypothetical were those that the ALJ found to be credible and supported by substantial evidence in the record. Thus, the hypothetical was sufficient, and it was proper for the ALJ to rely on the VE's answer. Lockwood, 616 F.3d at 1071. Ill Ill Ill Ill 20 - OPINION See Bayliss, 427 F.3d at 1217-18; CONCLUSION For the foregoing reasons, the decision of the ALJ AFFIRMED. IT IS SO ORDERED. DATED this /61 day of November, 2012. Malcolm F. Marsh United States District Judge 21 - OPINION is

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