Daily v. Astrue, No. 2:2012cv00389 - Document 22 (E.D. Wash. 2013)

Court Description: MEMORANDUM OPINION; ORDER RE: MOTIONS FOR SUMMARY JUDGMENT; denying 17 Plaintiff's Motion for Summary Judgment; granting 20 Defendant's Motion for Summary Judgment. Signed by Senior Judge Justin L. Quackenbush. (PL, Case Administrator)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 8 DEBRA I. DAILY, Plaintiff, 9 10 11 v. MICHAEL ASTRUE1, Commissioner of Social Security, 12 NO. CV-12-00389-JLQ MEMORANDUM OPINION; ORDER RE: MOTIONS FOR SUMMARY JUDGMENT Defendant. 13 14 Plaintiff appeals from the final decision of the Commissioner of the Social 15 Security Administration ("Commissioner") which denied her application for 16 Supplemental Security Income ("SSI"), after a hearing before an Administrative 17 Law Judge ("ALJ"). This case, filed on June 8, 2012, was reassigned to the 18 undersigned on August 1, 2013. Before the court are Cross-Motions for Summary 19 Judgment. (ECF Nos. 17, 20). No Reply briefs were filed. Plaintiff is represented 20 by attorney Rebecca Coufal. Defendant is represented by Assistant United States 21 Attorney Pamela DeRusha and Special Assistant United States Attorney Nancy A. 22 Michalanie. Jurisdiction to review the Commissioner's decision exists pursuant to 23 Carolyn W. Colvin became the Acting Commissioner of Social Security on 25 February 14, 2013. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, 26 Carolyn W. Colvin is substituted for Michael J. Astrue as the Defendant in this suit. No further action is necessary to continue this action by reason of the last sentence 27 of 42 U.S.C. § 405(g). 24 1 28 ORDER - 1 1 42 U.S.C. §§ 405(g) and 1383(c)(3). 2 I. LEGAL STANDARDS 3 A. Sequential Evaluation 4 The Social Security Act defines "disability" as the "inability to engage in 5 any substantial gainful activity by reason of a medically determinable physical or 6 mental impairment which can be expected to result in death or which has lasted or 7 can be expected to last for a continuous period of not less than twelve months." 8 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a claimant 9 shall be determined to be under a disability only if the impairments are of such 10 severity that the claimant is not only unable to do her previous work but cannot, 11 considering claimant's age, education and work experiences, engage in any other 12 substantial gainful work which exists in the national economy. 42 U.S.C. §§ 13 423(d)(2)(A), 1382c(a)(3)(B). 14 The Commissioner has established a five-step sequential evaluation process 15 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920; 16 Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987): 17 Step 1: Is the claimant engaged in substantial gainful activities? 20 C.F.R. 18 §§ 404.1520(b), 416.920(b). If she is, benefits are denied. If she is not, the 19 decision maker proceeds to Step 2. 20 Step 2: Does the claimant have a medically severe impairment or 21 combination of impairments? 20 C.F.R. §§ 404.1520(c), 416.920(c). If the 22 claimant does not have a severe impairment or combination of impairments, the 23 disability claim is denied. If the impairment is severe, the evaluation proceeds to 24 the third step. 25 Step 3: Does the claimant's impairment meet or equal one of the listed 26 impairments acknowledged by the Commissioner to be so severe as to preclude 27 substantial gainful activity? 20 C.F.R. §§ 404.1520(d), 416.920(d); 20 C.F.R. Pt. 28 404 Subpt. P App. 1. If the impairment meets or equals one of the listed ORDER - 2 1 impairments, the claimant is conclusively presumed to be disabled. If the 2 impairment is not one conclusively presumed to be disabling, the evaluation 3 proceeds to Step 4. Step 4: Does the impairment prevent the claimant from performing work she 4 5 has performed in the past? 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant 6 is able to perform her previous work, she is not disabled. If the claimant cannot 7 perform this work, the inquiry proceeds to the Fifth and final Step. Step 5: Is the claimant able to perform other work in the national economy 8 9 in view of her age, education and work experience? 20 C.F.R. §§ 404.1520(f), 10 416.920(f). The initial burden of proof rests upon the Plaintiff to establish a prima facie 11 12 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 13 (9th Cir. 1971). The initial burden is met once a claimant establishes that a 14 physical or mental impairment prevents her from engaging in her previous 15 occupation. The burden then shifts to the Commissioner to show (1) that the 16 claimant can perform other substantial gainful activity and (2) that a "significant 17 number of jobs exist in the national economy" which claimant can perform. Kail 18 v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 19 B. Standard of Review 20 This court s role on review of the decision of the ALJ is limited. The court 21 reviews that decision to determine if it was supported by substantial evidence and 22 contains a correct application of the law. Valentine v. Comm r. Soc. Sec. Admin, th 23 574 F. 3d 685,690 (9 Cir. 2009). This court is obligated to affirm the ALJ s 24 findings if the are supported by substantial evidence and the reasonable inferences th 25 to be drawn therefrom. Molina v. Astrue, 674 F. 3d 1104, 1110-11 (9 Cir. 2012). 26 Substantial evidence is such relevant evidence that a reasonable mind might accept 27 as adequate to support the conclusion. 28 ORDER - 3 1 "The [Commissioner's] determination that a claimant is not disabled will be 2 upheld if the findings of fact are supported by substantial evidence and the 3 [Commissioner] applied the proper legal standards." Delgado v. Heckler, 722 4 F.2d 570, 572 (9th Cir. 1983) (citing 42 U.S.C. § 405(g)). Substantial evidence is 5 more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th 6 Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d 599, 7 601-602 (9th Cir. 1989). "It means such relevant evidence as a reasonable mind 8 might accept as adequate to support a conclusion." Richardson v. Perales, 402 9 U.S. 389, 401 (1971) (citations omitted). "[S]uch inferences and conclusions as 10 the [Commissioner] may reasonably draw from the evidence" will also be upheld. 11 Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). On review, the court 12 considers the record as a whole, not just the evidence supporting the decision of 13 the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989). This 14 court may set aside a denial of benefits only if the basis for denial is not supported 15 by substantial evidence or if it is based on legal error. Thomas v. Barnhart, 278 16 F.3d 947, 954 (9th Cir. 2002). It is the role of the trier of fact, not this court, to 17 resolve conflicts in the evidence. Richardson, 402 U.S. at 400. If the evidence 18 supports more than one rational interpretation, the court must uphold the decision 19 of the ALJ. Thomas, 278 F.3d at 954 (9th Cir. 2002). 20 II. PROCEDURAL HISTORY 21 Plaintiff, a now fifty year old female (born in 1962), first filed an 22 application for Disability Insurance Benefits ("DIB") on April 10, 2009, alleging 23 an onset date of January 12, 2009 due to the effects of growth spurs, heart 24 murmur, cirrhosis, and fatty liver. (Tr. 144). She alleged as a result of these 25 conditions she was limited in how long she could sit, stand, and walk, and how 26 much she could lift. She claimed she could not bend, stoop, kneel, squat or crawl 27 and that she suffered from severe fatigue, dizziness, difficulty sleeping, and 28 shortness of breath. (Tr. 145). Plaintiff s application was denied initially and on ORDER - 4 1 reconsideration. (Tr. 17). On February 25, 2011 the ALJ issued her decision 2 finding Plaintiff not disabled. (Tr. 17-26). Plaintiff subsequently submitted a letter brief to the Appeals Council 3 4 through new counsel, and requested review of the ALJ's decision. The Appeals 5 Council denied her request on May 10, 2012 (Tr. 1-6), making the ALJ's ruling the 6 "final decision" of the Commissioner as the term is defined by 42 U.S.C. § 405(g). 7 Plaintiff now seeks judicial review of the Commissioner s final decision. (ECF 8 No. 1). 9 III. FACTUAL BACKGROUND The facts are contained in the medical records, administrative transcript 10 11 (ECF No. 11)( Tr. ), and the ALJ's decision, and are only briefly summarized 12 here. 13 1. Plaintiff s History 14 Plaintiff was born in 1962 and was 48 years old at the time of the 15 administrative hearing. She graduated from Wilbur High School and during school 16 needed resource room assistance. Plaintiff lives with her husband, and has two 17 adult children of her own and an adult step-son. Plaintiff has worked as a 18 housekeeper at assisted living facilities, a cabinet maker for Huntwood Industries 19 (hand gluing door parts and transferring wood skins from one conveyor to another), 20 and an assembly press operator/hardware installer for a metal fabrication company, 21 Accrafab. (Tr. 157-163). Her last job as a janitor for Varsity contractors ended in 22 January 2009 when she decided it was too much after she tripped and fell with an 23 industrial backpack vacuum cleaner on. (Tr. 46). She has a drivers license and 24 can drive. (Tr. 445). At the time of her disability application in 2009 she was 5'6" 25 tall and weighed 293 pounds, though a 2010 medical record shows a decreased 26 weight of 279 and a body mass index of 45.03. She is still deemed morbidly obese. 27 (Tr. 144, 417). 28 ORDER - 5 1 2 2. Commissioner s Findings Before this court is the appeal of ALJ Ausem s February 25, 2011 decision 3 finding Plaintiff not disabled since April 10, 2009. The ALJ found at Step 1 that 4 Plaintiff had not engaged in substantial gainful activity since January 12, 2009, the 5 alleged onset date. (Tr. 19). At Step 2, the ALJ determined that Plaintiff had the 6 following severe impairments: obesity, hypertension, obstructive sleep apnea, post 7 cholecystectomy with postoperative hemmorrhage, depressive disorder not 8 otherwise specified, borderline intellectual functioning, and personality disorder 9 with dependent features. 10 At Step 3, the ALJ determined that the Plaintiff s impairments, alone or in 11 combination, did not meet or medically equal one of the listed impairments in 20 12 CFR Pt. 404 Subpt. P App 1 (Listings). 13 At Step 4, the ALJ determined the Plaintiff had the residual functional 14 capacity ( RFC ) to perform light work, but with non-exertional limitations of 15 performing semi-skilled tasks and superficial interaction with the general public. 16 (Tr. 21). Based upon this determination of Plaintiff s RFC, the ALJ concluded 17 Plaintiff could perform her past relevant work as a cleaner, cabinet assembler, 18 assembly press operator, and production assembler. (Tr. 25). Alternatively, at Step 19 5, the ALJ, relying upon testimony of a vocational expert, concluded that there are 20 jobs that exist in significant numbers in the national economy that the claimant can 21 perform, including sewing machine operator, production assembler, and cashier. 22 (Tr. 26). The ALJ then noted that even had she found that Plaintiff was restricted 23 to a sedentary level of exertion, she would not be disabled as the same jobs still 24 existed in significant numbers at the sedentary level. (Tr. 26). 25 Accordingly, the ALJ concluded that Plaintiff was not disabled, as defined 26 by the Social Security Act, from January 12, 2009 through the date of the decision, 27 February 25, 2011. 28 ORDER - 6 1 III. ISSUES 2 In her Motion, Plaintiff solely contends errors in the ALJ s decision require 3 this matter be at the least remanded for another hearing. (ECF No. 18). Plaintiff 4 contends the ALJ erred because: (1) the ALJ, at Step 2, failed to include as severe 5 impairments plantar fasciitis, backache and elbow tendonitis; (2) the ALJ did not 6 have the basis to find Daily less than fully credible regarding her characterization 7 of the extent of her impairments; (3) the ALJ s hypothetical questions to the 8 vocational expert did not account for all of plaintiff s physical limitations and 9 restrictions due to the error at Step 2; and (4) the ALJ failed to flesh[] out the 10 11 record with an [sic] ME [medical expert]. The court notes that in her brief to this court, Plaintiff attempts to 12 incorporate, by reference (and without citation), the arguments made in her April 13 21, 2011 letter brief submitted by counsel to the Appeals Council (Tr. 222). (ECF 14 No. 18 at 7)( Daily incorporates the letter briefs to the AC and the transcript of the 15 records in this Memorandum knowing the court will thoroughly review the 16 record. ). The court has located a single brief filed with the Appeals Council, 17 wherein Plaintiff made two entirely distinct arguments from those in Plaintiff s 18 Motion herein. First, Plaintiff argued to the Appeal Council that the ALJ erred in 19 failing to find her asthma and COPD as severe impairments; and next, that the ALJ 20 erred by finding her capable of semi-skilled work when her depression and 21 personality disorder would not enable her to perform anything beyond unskilled 22 work. (Tr. 222). 23 Plaintiff s attempted incorporation of her Appeals Council brief without 24 discussion in her Memorandum in support of her summary judgment motion in this 25 court might be construed as an attempt to avoid the court s 20-page limitation for 26 summary judgment memoranda. Local Rule 7.1(e). Furthermore, litigants must 27 specifically outline and discuss the factual and legal issues in their appellate briefs 28 to this court. Otherwise, the court may consider the argument abandoned. See ORDER - 7 1 Miller v. Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir.1986)(the court "will 2 not ordinarily consider matters on appeal that are not specifically and distinctly 3 argued in appellant's opening brief." ); United States v. Kimble, 107 F.3d 712, 715 4 n. 2 (9th Cir. 1997) (arguments "not coherently developed" in appellate briefs are 5 waived on appeal); Ehrhart v. Secretary of Health and Human Servs., 969 F.2d 6 534, 537 n.5 (7th Cir. 1992)(the issue of whether the treating physician s opinion 7 was properly evaluated drops out because it is a no-show in the body of the 8 brief. ). The court has observed that Plaintiff's counsel has utilized this 9 incorporation procedure in other social security appeals in this district. Counsel 10 would be well advised to discontinue the practice of attempted incorporation of 11 legal argument not otherwise addressed in the memorandum before the court. 12 IV. DISCUSSION 13 A. 14 Step Two Plaintiff contends the ALJ should have found that plantar fasciitis, elbow 15 tendonitis and backache were severe impairments. (ECF No. 18 at 8-11). At Step 16 2 of the evaluation process, the ALJ must determine if an impairment is severe. 17 20 C.F.R. § 404.1520, § 416.920. An impairment is not severe if it does not 18 significantly limit a claimant's mental or physical abilities to do basic work 19 activities. 20 C.F.R. § 404.1520(a)(4)(iii), (c), § 416.920(a)(4)(iii), (c); see also 20 Social Security Ruling ( SSR ) 96 3p, 1996 WL 374181 *1. Basic work activities 21 are those abilities and aptitudes necessary to do most jobs. 20 C.F.R. § 22 404.1521(b), § 416.921(b); SSR 85 28, 1985 WL 56856 *3. 23 An impairment is not severe if the evidence only establishes a slight 24 abnormality that has no more than a minimal effect on an individual[']s ability to 25 work. SSR 85 28, 1985 WL 56856 *3; see also Smolen v. Chater, 80 F.3d 1273, 26 1290 (9th Cir. 1996); Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir.1988). Plaintiff 27 has the burden of proving that her impairments or their symptoms affect her 28 ability to perform basic work activities. Edlund v. Massanari, 253 F.3d 1152, ORDER - 8 1 1159 60 (9th Cir. 2001); Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998). Plaintiff contends [t]he evidence in the file supports finding the above noted 2 3 physical problems severe, but does not explain what this evidence is or cite any 4 portion of the record supporting such a finding. Notably, none of these conditions 5 were claimed by Plaintiff as a cause of disability in her application for benefits. In 6 April 2007, Plaintiff was diagnosed with chronic plantar fasciitis in the left foot 7 and excessive and prolonged pronation by podiatrist Donald Grim, D.P.M. During 8 the exam, Plaintiff advised that her heel had been hurting for 11 years (Tr. 392), a 9 time frame during which Plaintiff maintained employment. Grim recommended 10 consideration of custom orthotics. Though Plaintiff s subsequent medical records 11 lists foot pain in the list of Plaintiff s Problems, the last treatment note showing 12 a complaint or record for treatment of foot pain was January 2008 which notes that 13 naprosyn [sic] works well to control sxs [symptoms]. (Tr. 254). Plaintiff did not 14 prove her plantar fasciitis constituted a severe impairment and the ALJ s failure to 15 so find was not erroneous. Likewise, there is no history of any complaints or 16 treatment for elbow tendonitis in the record since August 2006, when Plaintiff 17 started moving heavy lumber at her workplace (Tr. 273). There is no evidence in 18 the record that this condition has persisted during the relevant period since January 19 2009. 20 Finally, concerning alleged backache, in a footnote in her brief, Plaintiff 21 states "the backache has support in the lumbar and thoracic spine series done 22 November 8, 2008." Plaintiff was referred for x-rays due to Plaintiff s fall at work 23 in early November, 2008. (Tr. 351). The thoracic spine result was unremarkable. 24 (Tr. 352). The lumbar spine result recommended a MRI for better correlation 25 and noted endplate sclerotic changes...with small osteophyte projecting 26 posteriorly... On February 5, 2009, Plaintiff had an appointment with her primary 27 physician for backache. She was advised to take Tylenol and have an MRI. (Tr. 28 247). The record does not reflect that an MRI was performed or any follow up ORDER - 9 1 treatment for her back. (Tr. 427). As noted by the ALJ, Plaintiff only sought 2 medical attention on 3 occasions in 2009. A January 2010 treatment record noted 3 Plaintiff was pain free. (Tr. 417). The ALJ did not err by not finding Plaintiff s 4 back pain to be a severe impairment during the relevant period. Within Plaintiff s Step 2 argument, Plaintiff also contends the ALJ failed to 5 6 "flesh[] out the record with an [sic] ME [medical expert]." The ALJ's duty to 7 further develop the record is triggered only when record evidence contains 8 ambiguous evidence or is inadequate to allow for proper evaluation of the 9 evidence. Mayes v. Massanari, 276 F.3d 453 (9th Cir. 2001). The record before 10 the ALJ was neither ambiguous nor inadequate. Although an ALJ s inquiry at Step 2 is based upon a de minimis standard, not 11 12 all impairments are severe as the mere diagnosis does not speak to its severity. The 13 court accordingly finds the ALJ s failure at Step 2 to find plantar fasciitis, elbow 14 tendonitis, and backache as severe impairments does not constitute reversible error. 15 B. Credibility 16 The ALJ s decision herein includes the often seen assessment in social 17 security decisions that while Plaintiff s impairments could reasonably be expected 18 to cause some of the alleged symptoms, the claimant s statements concerning the 19 intensity, persistence and limiting effects of these symptoms are not credible to the 20 extent they are inconsistent with an RFC of a limited range of light work or 21 alternatively, sedentary work. (Tr. 22). Plaintiff alleges a remand is warranted 22 because the ALJ did not "have the basis to find Daily less than fully credible" 23 regarding her characterization of the extent of her impairments. 24 An ALJ's assessment of pain severity and claimant credibility is entitled to 25 great weight. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. 26 Heckler, 779 F.2d 528, 531 (9th Cir. 1986). [T]he ALJ is not required to believe 27 every allegation of disabling pain, or else disability benefits would be available for 28 the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5) (A). Molina v. ORDER - 10 1 Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (internal quotation marks and citation 2 omitted). In evaluating a claimant's subjective symptom testimony, an ALJ engages 3 in a two-step analysis. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 36 (9th Cir. 4 2007). First, the ALJ must determine whether the claimant has presented objective 5 medical evidence of an underlying impairment [that] could reasonably be expected 6 to produce the pain or other symptoms alleged . Id. at 1036 (internal quotation 7 marks omitted). If such objective medical evidence exists, the ALJ may not reject a 8 claimant's testimony simply because there is no showing that the impairment can 9 reasonably produce the degree of symptom alleged. Smolen, 80 F.3d at 1282 10 (emphasis in original). When the ALJ finds a claimant's subjective complaints not 11 credible, the ALJ must make specific findings that support the conclusion. Berry v. 12 Astrue, 622 F.3d 1228, 1234 (9th Cir.2010). Absent affirmative evidence of 13 malingering, those findings must provide clear and convincing reasons for 14 rejecting the claimant's testimony. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 15 1996). If the ALJ's credibility finding is supported by substantial evidence in the 16 record, the reviewing court may not engage in second-guessing. Thomas, 278 17 F.3d at 959. 18 At the administrative hearing, Plaintiff testified she only slept 3-4 hours per 19 night as she only used her CPAP half the night, resulting in daytime fatigue. (Tr. 20 47). She also testified that depression causes her to feel tired all the time and lack 21 interest in doing anything. (Tr. 50). She claimed that during the day she tried to 22 prepare meals, but tired easily and needed to rest every fifteen minutes due to back 23 pain. She claimed she could only lift five pounds comfortably and stand 10-15 24 minutes at a time due to back and foot pain. (Tr. 48, 54). 25 Remand is not warranted based upon the ALJ s credibility finding. The 26 ALJ s standard statement is followed by a specific discussion of the reasons which 27 factored into the ALJ s credibility assessment. First, the ALJ considered the 28 contradictory facts contained in the Plaintiff s treatment notes including evidence ORDER - 11 1 that her symptoms were being managed by treatment and evidence she was able to 2 manage her daily activities without issues. The evidence reviewed by the ALJ 3 also noted that Plaintiff did not suffer from extreme fatigue or have difficulty with 4 walking or balance. (Tr. 384). 5 The ALJ did not rely solely upon the conflicts identified between the medical 6 evidence and the Plaintiff s allegations. The ALJ found the claimant s meager 7 course of treatment and treatment lapses, were inconsistent with the allegation of 8 disabling symptoms, including alleged significant difficulties standing and 9 walking, as well as mental impairment. Plaintiff specifically argues this part of the 10 ALJ s credibility assessment was in error because it seem[ed] to circle around how 11 seldom she went to the doctor and the ALJ chose not to ask Daily why she did 12 not go to the doctor more often. (ECF No 18 at 13, 10). However, according to 13 Agency rules, a claimant s statements may be less credible if the level or frequency 14 of treatment is inconsistent with the level of complaints. See 20 C.F.R. § 15 404.1529(c)(3)(v) (an ALJ may consider the conservative nature of claimant's 16 treatment); SSR 96 7p (an individual's statements may be less credible if the level 17 or frequency of treatment is inconsistent with the level of complaints ); Johnson v. 18 Shalala, 60 F.3d 1428, 1434 (9th Cir.1995) (inconsistencies between the record 19 and medical evidence supports a rejection of a claimant's credibility; no medical 20 treatment or a conservative level of medical treatment has been found to suggest a 21 lower level of pain and functional limitations). 22 Finally, the ALJ noted the Plaintiff s level of daily living undermined her 23 subjective complaints. These included her ability to drive, cook, clean, do laundry, 24 watch television, use a computer to play games and check e-mail, leave the home, 25 grocery shop, and visit her daughter and sister. (Tr. 23). Because the ALJ 26 considered many of the credibility factors provided by 20 C.F.R. § 404.1529 in 27 reaching her credibility determination, the court finds that determination 28 adequately supported. Under such circumstances, where the ALJ's credibility ORDER - 12 1 determination is supported by substantial evidence the court will not engage in 2 second guessing. 3 C. Step Five - Vocational Expert Testimony 4 Finally, Plaintiff contends the ALJ's hypothetical questions to the vocational 5 expert did not account for all of Plaintiff's physical limitations due to the claimed 6 error claimed at Step 2. Plaintiff contends this includes the walking limitations 7 from plantar fasciitis, possible sitting limitations from the ongoing back 8 ache/pain, or lifting limitations which might result from the elbow tendonitis. 9 (ECF No. 18 at 15)(emphasis added). 10 An ALJ's findings will be upheld if the weight of the medical evidence 11 supports the hypothetical posed by the ALJ. See Martinez v. Heckler, 807 F.2d 771, 12 774 (9th Cir. 1987); Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984). The 13 vocational expert's testimony therefore must be reliable in light of the medical 14 evidence to qualify as substantial evidence. See Embrey v. Bowen, 849 F.2d 418, 15 422 (9th Cir. 1988). The ALJ's description of the claimant's disability must be 16 accurate, detailed, and supported by the medical record. Id. (citations omitted). 17 The ALJ, however, may omit from that description those limitations she finds do 18 not exist. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 19 At the hearing, the ALJ posed a hypothetical question to the vocational 20 expert containing the limitations of sedentary exertional activity, semi-skilled 21 tasks, and no exposure to pulmonary irritants. The ALJ then asked the vocational 22 expert to consider the additional restriction of no more than superficial contact with 23 the general public. (Tr. 61-63). In response, the vocational expert testified that an 24 individual with those limitations and with the same age, education and work 25 experience as plaintiff would be able to perform other jobs, including sewing 26 machine operator, production assembler, and cashier 2. (Tr. 62-63). Based on the 27 testimony of the vocational expert, the ALJ found plaintiff would be capable of 28 performing other jobs existing in significant numbers in the national economy ORDER - 13 1 whether limited to light or sedentary level of exertion. Tr. 25-26. As the ALJ was 2 not required to include hypothetical limitations not supported by substantial 3 evidence pertaining to the relevant period, the ALJ did not err in framing the 4 hypothetical questions or relying upon the vocational expert s testimony. 5 V. CONCLUSION 6 The court, in its limited role, finds that the Commissioner's and ALJ's 7 decision is supported by substantial evidence in the record and is based on proper 8 legal standards. It must therefor be Affirmed. Lewis v. Astrue, 498 F.3d 909, 911 9 (9th Cir. 2007). 10 IT IS HEREBY ORDERED: 11 1. Plaintiff's Motion for Summary Judgment (ECF No. 17) is DENIED. 12 2. Defendant's Motion for Summary Judgment (ECF No. 20) is GRANTED. 13 3. The Clerk is directed to enter Judgment dismissing the Complaint and the 14 claims therein with prejudice. 15 IT IS SO ORDERED. The District Court Executive is directed to file this 16 Order, enter Judgment as directed above, and close this file. 17 Dated this 25th day of September, 2013. s/ Justin L. Quackenbush JUSTIN L. QUACKENBUSH SENIOR UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 ORDER - 14

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