Heiskanen v. Astrue, No. 2:2012cv03063 - Document 23 (E.D. Wash. 2013)
Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; denying 16 Plaintiff's Motion for Summary Judgment; granting 20 Defendant's Motion for Summary Judgment. Case closed. Signed by Senior Judge Wm. Fremming Nielsen. (CV, Case Administrator)
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Heiskanen v. Astrue Doc. 23 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 ARI HEISKANEN, Plaintiff, 8 -vs- 9 10 CAROLYN W. COLVIN, Commissioner of Social Security,1 11 Defendant. ) ) ) ) ) ) ) ) ) ) NO. CV-12-03063-WFN ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 12 13 Before the Court are cross-Motions for Summary Judgment (ECF Nos. 16 and 20). 14 Attorney D. James Tree represents Plaintiff. Special Assistant United States Attorney 15 Matthew W. Pile represents Defendant. After reviewing the administrative record and the 16 briefs filed by the parties, the Court denies Plaintiff’s Motion for Summary Judgment, and 17 grants Defendant’s Motion for Summary Judgment. JURISDICTION 18 19 Plaintiff protectively applied for disability insurance and supplemental security income 20 benefits on October 5, 2007, alleging disability beginning on July 1, 2003, due to a 21 combination of impairments including shoulder injuries, posttraumatic stress disorder 22 23 1 Carolyn W. Colvin became the Acting Commissioner of Social Security on 24 February 14, 2013. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn 25 W. Colvin is substituted for Michael J. Astrue as the defendant in this suit. No further action 26 need be taken to continue this suit by reason of the last sentence of 42 U.S.C. § 405(g). ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 1 Dockets.Justia.com 1 (PTSD), depressive disorder, and anxiety. The Commissioner denied the applications 2 initially and on reconsideration. 3 A hearing was held before Administrative Law Judge (ALJ) Catherine Lazuran on 4 September 8, 2010. During the hearing Plaintiff, represented by counsel, testified as did 5 David R. Rullman, M.D., an impartial medical expert, and Patricia B. Ayerza, an impartial 6 vocational expert (VE). The ALJ issued a decision on October 8, 2010, finding Plaintiff 7 not disabled. The Appeals Council denied Plaintiff’s request for review, making the 8 ALJ's decision the final decision of the Commissioner. Pursuant to 42 U.S.C. § 405(g), this 9 final decision is appealable to the district court. Plaintiff sought judicial review on April 23, 10 2012. 11 12 STATEMENT OF FACTS The facts of the case are set forth in detail in the transcript of the proceedings and are 13 briefly summarized here. Plaintiff was 42 years old at the time he filed his applications. 14 Plaintiff has a high school education and received vocational training in the Marines. (Tr. 15 at 39.) Plaintiff served in the Marines for over 20 years as a jet mechanic and in an 16 administrative capacity. (Tr. at 68.) Multiple entries in the record state that Plaintiff received 17 a bachelor's degree in business, Tr. at 440, 449, 465, 493, but Plaintiff denies attending 18 college, Tr. at 39. Plaintiff also worked as a cement finisher, a commercial fisherman, and 19 at UHaul where he installed tow bars and worked in customer service. (Tr. at 72, 227.) 20 Plaintiff alleges that a combination of impairments––including shoulder injuries, PTSD, 21 depressive disorder, and anxiety––has prevented him from sustaining competitive 22 employment since July 1, 2003. Although unable to work, Plaintiff admitted that he was 23 able to perform light household chores such as vacuuming, taking out the trash, and washing 24 dishes. (Tr. at 46.) Plaintiff also testified that he occasionally hiked, camped, hunted, 25 fished, and played lawn games. (Tr. at 47-48). Some evidence suggests, however, that such 26 activities were becoming increasingly difficult and painful for Plaintiff (Tr. at 50, 193). ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 2 1 2 SEQUENTIAL PROCESS The Commissioner has established a five-step sequential evaluation process for 3 determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 416.920(a); see 4 Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one through four, the burden 5 of proof rests upon the claimant to establish a prima facie case of entitlement to 6 disability benefits. Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999). This 7 burden is met once a claimant establishes that a physical or mental impairment prevents 8 him from engaging in his previous occupation. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). 9 If a claimant cannot do his past relevant work, the ALJ proceeds to step five, and 10 the burden shifts to the Commissioner to show that (1) the claimant can make an 11 adjustment to other work; and (2) specific jobs exist in the national economy which 12 claimant can perform. Batson v. Commissioner of Social Sec. Admin., 359 F.3d 1190, 13 1193-94 (2004). If a claimant cannot make an adjustment to other work in the 14 national economy, a finding of "disabled" is made. 20 C.F.R. §§ 404.1520(a)(4)(I-v), 15 416.920(a)(4)(I-v). 16 17 ADMINISTRATIVE DECISION At step one, the ALJ determined that Plaintiff did not engage in substantial activity 18 since July 1, 2003. 19 At step two, the ALJ found that Plaintiff had severe impairments of left shoulder 20 degenerative joint disease and history of surgery and right shoulder history of degenerative 21 joint disease (20 C.F.R. §§ 404.1520(c) & 416.920(c)). The ALJ concluded that Plaintiff had 22 no severe psychiatric conditions. 23 At step three, the ALJ found that Plaintiff did not have an impairment or combination 24 of impairments that met or medically equaled any of the listed impairments described at 20 25 C.F.R. Part 404, Subpart P, Appendix 1(20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 26 416.920(d), 416.925, and 416.926). ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 3 1 At step four, the ALJ found that Plaintiff had the residual functional capacity to (1) lift 2 25 pounds occasionally and 10 pounds frequently, and (2) stand and walk 6 hours out of an 3 8-hour day and sit 6 hours of an 8-hour day. The ALJ found that Plaintiff could do little or 4 no lifting or reaching of the arms above mid-chest level. The ALJ also found that Plaintiff 5 should not crawl or climb ladders, ropes, or scaffolds. The ALJ went on to conclude that 6 Plaintiff was unable to perform any past relevant work. 7 At step five, the ALJ concluded that, given Plaintiff’s age, education, work experience, 8 and residual functional capacity, there were jobs that existed in significant numbers in the 9 national economy that Plaintiff could perform, including working as a booth cashier or mail 10 clerk. 11 12 STANDARD OF REVIEW In Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001), the court set out the 13 standard of review: 14 15 16 17 18 19 20 A district court’s order upholding the Commissioner’s denial of benefits is reviewed de novo. Harman v. Apfel, 211 F.3d 1172, 1174 (9th Cir. 2000). The decision of the Commissioner may be reversed only if it is not supported by substantial evidence or if it is based on legal error. Tackett, [180 F.3d at 1097]. Substantial evidence is defined as being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put another way, substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational interpretation, the court may not substitute its judgment for that of the Commissioner. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin. 169 F.3d 595, 599 (9th Cir. 1999). 21 24 The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, although deference is owed to a reasonable construction of the applicable statutes. McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000). 25 It is the role of the trier of fact, not this court, to resolve conflicts in evidence. 22 23 26 Richardson, 402 U.S. at 400. If evidence supports more than one rational interpretation, the ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 4 1 court may not substitute its judgment for that of the Commissioner. Tackett, 180 F.3d at 2 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). Nevertheless, a decision 3 supported by substantial evidence will still be set aside if the proper legal standards were not 4 applied in weighing the evidence and making the decision. Brawner v. Secretary of Health 5 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence exists to 6 support the administrative findings, or if conflicting evidence exists that will support a 7 finding of either disability or non-disability, the Commissioner's determination is conclusive. 8 Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). 9 ISSUES 10 The Plaintiff presents the following issues with respect to the ALJ’s findings: 11 1. At step two, did the ALJ err in finding that Plaintiff did not suffer from severe 12 mental impairments? 13 2. At step four, did the ALJ err by rejecting the opinions of Plaintiff’s treating and 14 examining medical providers? 15 3. At step four, did the ALJ err by discounting Plaintiff’s credibility? 16 4. At step five, did the ALJ err by relying on the VE's response to an incomplete 17 hypothetical? 18 19 DISCUSSION 1. At step two, did the ALJ err in finding that Plaintiff did not suffer from severe 20 mental impairments? 21 At step two, the ALJ found that Plaintiff had “no severe psychiatric condition.” (Tr. 22 at 19.) Plaintiff argues that the ALJ erred in her step two analysis by rejecting the opinions 23 of two of Plaintiff's treating therapists. The Court disagrees that the ALJ erred at step two 24 because the ALJ provided a germane reason for rejecting the opinions of Plaintiff's therapists. 25 The step-two analysis is “a de minimis screening device used to dispose of groundless 26 claims.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). An impairment is "not ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 5 1 severe" if it does not "significantly limit" the ability to conduct "basic work activities." 20 2 C.F.R. §§ 404.1521(a), 416.921(a). Basic work activities are "abilities and aptitudes 3 necessary to do most jobs." 20 C.F.R. § 404.1521(b). "An impairment or combination of 4 impairments can be found not severe only if the evidence establishes a slight abnormality that 5 has no more than a minimal effect on an individual's ability to work." Smolen v. Chater, 80 6 F.3d 1273, 1279 (9th Cir. 1996) (internal quotation marks omitted). 7 The administrative record in this case contains opinions of two of Plaintiff's treating 8 therapists––Steven Woolpert, MS/MHP, and Carol Jurs, CDMHP––opining that Plaintiff 9 suffered from psychiatric disorders that significantly affected his ability to work. The ALJ 10 rejected the opinions of Mr. Woolpert and Ms. Jurs because they were not acceptable medical 11 sources. The ALJ gave greater weight to the “more thorough evaluation” performed by 12 psychologist Colin R. Joseph, Ph.D., in which Dr. Joseph concluded that Plaintiff did not 13 meet the criteria for PTSD, depression, or other psychiatric impairment. 14 Generally, the ALJ should give more weight to the opinion of an acceptable medial 15 source than to the opinion of an "other source," such as a therapist. 20 C.F.R. § 404.1513(d). 16 An ALJ is required, however, to consider evidence from “other sources,” 20 C.F.R. §§ 17 404.1513(d), 416.913(d); S.S.R. 06-03p, “as to how an impairment affects a claimant’s 18 ability to work,” Sprague, 812 F.2d at1232. An ALJ must give "germane" reasons to discount 19 evidence from "other sources." Dodrill v. Shalala, 12 F.3d 915 (9th Cir. 1993). Germane 20 reasons to discount an opinion include contradictory opinions and lack of support in the 21 record. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). 22 In this case, the ALJ rejected Mr. Woolpert's and Ms. Jurs' opinions but provided a 23 germane reason for doing so, i.e., their opinions were contradicted by Dr. Joseph. Plaintiff 24 correctly points out that his therapists opined that he suffered from various psychiatric 25 disorders that effected his ability to work. Mr. Woolpert diagnosed Plaintiff with "major 26 depressive disorder" and "moderate anxiety disorder." (Tr. at 301.) Mr. Woolpert noted that ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 6 1 although Plaintiff " had positive work experience[s] w[ith] co-workers [and] public in the 2 past," his "severe physical problems" and "re-occurring anxiety/depression symptoms" have 3 caused a decline in "social [and] functioning levels." (Tr. at 302.) Ms. Jurs diagnosed 4 Plaintiff with PTSD, noting that Plaintiff exhibited "severe" expressions of anxiety, fear, and 5 anger (Tr. at 422), and that Plaintiff's "[m]ental issues . . . interfere[d]" with his ability to 6 work (Tr. at 425). On other occasions, Ms. Jurs noted that Plaintiff's PTSD symptoms 7 "impaired" his "social factors" (Tr. at 480-81), "interrupts his daily functioning in an 8 unpredictable manner," and "severely impairs his ability to function 'normally,'" (Tr. at 547). 9 Dr. Joseph's opinion, however, contradicts the opinions of Mr. Woolpert and Ms. Jurs. 10 In evaluating Plaintiff, Dr. Joseph concluded that Plaintiff's symptoms "do not meet criteria 11 for PTSD or depressions" and opined that there was no reason why Plaintiff's "irritability or 12 occasional depressed mood would interfere with his ability to work." (Tr. at 450.) 13 Because Mr. Woolpert and Ms. Jurs are considered "other sources"––rather than 14 "acceptable medical sources"––the ALJ was free to reject their opinions so long as she 15 provided "germane" reasons for doing so. The ALJ's reliance on the contradictory opinion 16 of Dr. Joseph was a germane reason for rejecting the opinions of Plaintiff's therapists. 17 Because the ALJ applied the proper legal standard for rejecting the opinions of Plaintiff's 18 therapists, there was no evidence to show that Plaintiff's psychiatric impairments established 19 more than "a slight abnormality" that minimally effects Plaintiff's ability to work." Smolen, 20 80 F.3d at 1279. The ALJ did not err at step two. 21 2. At step four, did the ALJ err by rejecting the opinions of Plaintiff’s treating 22 and examining medical providers? 23 Plaintiff argues that the ALJ improperly rejected the opinions of three treating and 24 examining physicians––Dr. Zuck, Dr. Bothamley, and Dr. Smith. The Court disagrees 25 because the ALJ gave specific and legitimate reasons for rejecting the opinions of Drs. Zuck, 26 Bothamley, and Smith. ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 7 1 An ALJ must review the medical record and cite valid reasons for rejecting a doctor's 2 opinion when determining function limitations. The ALJ should give more weight to the 3 opinion of a treating physician than to the opinion of physicians who did not treat the 4 claimant. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (citing 20 C.F.R. § 5 404.1527(c)(1)). When the treating doctor’s opinion is not contradicted by another doctor, 6 the ALJ may reject the treating doctor’s opinion only for “clear and convincing” reasons. 7 Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991) (quoting Davis v. Heckler, 868 F.2d 8 323, 326 (9th Cir. 1989)). When the treating doctor’s opinion is contradicted by another 9 doctor, the ALJ may not reject the treating doctor’s opinions without “specific and legitimate 10 reasons” supported by substantial evidence in the record. Murray v. Heckler, 722 F.2d 499, 11 502 (9th Cir. 1983). In this case, the testimony of Dr. Rullman, the impartial medical expert, 12 contradicts the opinions of Plaintiff’s treating and examining physicians. Thus, the ALJ was 13 required only to provide "specific and legitimate" reasons for rejecting the opinions of 14 Plaintiff’s treating and examining physicians. 15 a. 16 Plaintiff points out that Dr. Zuck, a treating physician, opined that Plaintiff is Dr. Zuck 17 limited to "sedentary" work (Tr. at 296), would have to lie down during the day 18 "occasionally" (Tr. at 548), and would have to miss at least four days of work per month 19 (Tr. at 549). The ALJ considered Dr. Zuck's opinions but ultimately rejected them for 20 several reasons. 21 First, the ALJ noted internal inconsistencies between Dr. Zuck’s treatment notes and 22 his assessments of Plaintiff’s limitations. For example, as pointed out by Defendant, Dr. 23 Zuck's opinion that Plaintiff would miss four or more days of work per month (Tr. at 549) 24 is contradicted by Dr. Zuck's opinion a year earlier that Plaintiff would not miss any work 25 due to his medical impairments (Tr. at 473). Another example is when Dr. Zuck described 26 Plaintiff as having "doing fine" (Tr. at 518), yet also concluded that Plaintiff had serious ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 8 1 physical limitations (Tr. at 473). Furthermore, the ALJ noted Dr. Zuck's claim that Plaintiff 2 was limited to sedentary work was not consistent with his treatment notes that medication 3 alleviates Plaintiff's pain. In an April 2007 visit, Dr. Zuck noted that Plaintiff got "prompt 4 relief of his shoulder pain" by medication. (Tr. at 398.) To the extent Dr. Zuck's opinions are 5 internally inconsistent, the ALJ reasonably resolved the ambiguities. 6 Second, the ALJ points out that Dr. Zuck's treatment notes assess limitations that are 7 inconsistent with Plaintiff's activities such as hiking, hunting, and fishing. There is 8 substantial evidence in the record that Plaintiff led an "active lifestyle" even if such activities 9 were becoming increasingly difficult for Plaintiff. (See, e.g., Tr. at 47-48.) It is true that 10 "[o]ne does not need to be 'utterly incapacitated' in order to be disabled." Vertigan v. Halter, 11 260 F.3d 1044 (9th Cir. 2001) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). 12 But to the extent that Plaintiff's lifestyle conflicts with Dr. Zuck's assessments, the ALJ must 13 resolve the ambiguities. In this case, the ALJ reasonably concluded that Dr. Zuck's opinions 14 should be given little weight because his opinions were inconsistent with the activities 15 Plaintiff claimed he could perform. 16 Third, the ALJ reasoned that Dr. Zuck's opinions should be given little weight because 17 the testimony of medical expert Dr. Rullman contradicted Dr. Zuck's opinions. Dr. Rullman 18 acknowledged that Plaintiff has "significant and severe impairments in the use of his 19 shoulders." (Tr. at 57.) Dr. Rullman concluded, however, that Plaintiff was still capable of 20 "a lot of things," including "sedentary activity." (Tr. at 59.) In discussing Dr. Zuck's 21 treatment notes, Dr. Rullman commented that he "interpreted [Dr. Zuck's] responses to mean 22 that [Dr. Zuck] would say that [Plaintiff] is unable to work in any capacity." (Tr. at 61.) But 23 Dr. Rullman went on to state that "the problem is that there's no reporting in the record of 24 what the evidence for that conclusion is." (Id.) An ALJ does not err by rejecting the opinion 25 of a treating physician, "based in part on the testimony of a nontreating, nonexamining 26 medical advisor." Morgan, 169 F.3d at 602. The ALJ's reliance on Dr. Rullman's testimony ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 9 1 is another reason (but not the only reason) for why the ALJ properly accorded little weight 2 to Dr. Zuck's opinions. 3 In sum, the ALJ rejected Dr. Zuck's opinions by noting (1) internal inconsistencies 4 in Dr. Zuck's treatment records, (2) contradictions between Plaintiff's activities and his 5 claimed limitations, and (3) contradictions between the opinions of Dr. Zuck and Dr. 6 Rullman. The ALJ provided sufficient "specific and legitimate" reasons for rejecting Dr. 7 Zuck’s opinions. 8 b. 9 Dr. Bothamley, an evaluating physician, opined that Plaintiff was limited to sedentary Dr. Bothamley and Dr. Smith 10 work and has limited ability to lift, handle, carry, balance, bend, pull, push, and reach. (Tr. 11 at 309.) Dr. Smith, an evaluating physician, also limited Plaintiff to sedentary work and 12 assessed that he had marked inability to lift, handle, and carry, and had restricted ability to 13 climb, handle, push, and reach. (Tr. at 278.) The ALJ rejected Dr. Bothamley’s and Dr. 14 Smith's opinion because their opinions were “not consistent with the treatment records or the 15 [Plaintiff’s] active lifestyle.” (Tr. at 22.) As Defendant points out, the functional limitations 16 assessed by Drs. Bothamley and Smith are inconsistent with Dr. Rullman's testimony as well 17 as Dr. Zuck's treatment notes. (ECF No. 20 at 14-15.) Inconsistency with other treatment 18 records is a specific and legitimate reason for rejecting testimony because the ALJ has 19 authority to resolve ambiguities. Furthermore, as discussed above, there is substantial 20 evidence that Plaintiff engaged in an active lifestyle despite his alleged impairments. The 21 ALJ provided specific and legitimate reasons for rejecting Dr. Bothamley’s and Dr. Smith's 22 opinions. 23 3. At step four, did the ALJ err by discounting Plaintiff’s credibility? 24 Plaintiff argues that the ALJ erred by not providing clear and convincing reasons for 25 rejecting Plaintiff's subjective complaints. The Court disagrees because the ALJ gave 26 specific, clear, and convincing reasons for discounting Plaintiff's credibility. ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 10 1 It is the province of the ALJ to make credibility determinations. Andrews, 53 F.3d at 2 1039. "To determine whether the claimant's testimony regarding the severity of her 3 symptoms is credible, the ALJ may consider, for example: (1) ordinary techniques of 4 credibility evaluation, such as the claimant's reputation for lying, prior inconsistent 5 statements concerning the symptoms, and other testimony by the claimant that appears less 6 than candid; (2) unexplained or inadequately explained failure to seek treatment or to 7 follow a prescribed course of treatment; and (3) the claimant's daily activities." Smolen, 8 80 F.3d at 1284. Absent affirmative evidence showing that the claimant is malingering, the 9 ALJ must provide "specific, clear and convincing" reasons for rejecting the claimant's 10 testimony about the severity of the symptoms. Molina v. Astrue, 674 F.3d 1104, 1122 (9th 11 Cir. 2012). 12 In this case, the ALJ found that Plaintiff was not credible for multiple reasons. (Tr. at 13 23.) The ALJ noted that, despite Plaintiff's subjective complaints, the treatment records and 14 Plaintiff's admissions indicated that Plaintiff was able to perform "lighter types of activities," 15 such as household chores, outdoor recreation, walking, and traveling. (Id.) These findings 16 are supported by substantial evidence in the record. Inconsistencies in a disability claimant’s 17 testimony supports a decision by the ALJ that a claimant lacks credibility with respect to her 18 claim of disabling pain. Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1986); see also Fair 19 v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) ("[I]f, despite his claims of pain, a claimant is 20 able to perform household chores and other activities that involve many of the same physical 21 tasks as a particular type of job, it would not be farfetched for an ALJ to conclude that the 22 claimant's pain does not prevent the claimant from working."). 23 The ALJ also noted that Plaintiff did not always comply with his prescribed medical 24 treatment and "tended to use his Vicodin prescription up early." (Tr. at 23.) This finding 25 is also supported by the record. (Tr. at 524.) Noncompliance with medical care or 26 unexplained or inadequately explained reasons for failing to seek medical treatment casts ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 11 1 doubt on a claimant’s subjective complaints. 20 C.F.R. §§ 404.1530, 426.930; Fair, 885 F.2d 2 at 603. 3 Finally, the ALJ discounted Plaintiff's credibility because Plaintiff's claim that he was 4 unable to work is contradicted by the fact that he worked for three months in 2005. Although 5 Plaintiff was laid off because "he could not do the mechanical work or lift hitches," the ALJ 6 found that "there [was] no evidence [Plaintiff] would be incapable of lighter types of tasks." 7 (Id.) The ALJ's conclusion that Plaintiff was able to perform lighter types of tasks is 8 supported by substantial evidence in the record. 9 In sum, the ALJ did not err by concluding that Plaintiff’s subjective complaints 10 regarding the extent of his functional limitations were not fully credible in this case. 11 4. At step five, did the ALJ err by relying on the VE's response to an incomplete 12 hypothetical? 13 Plaintiff argues that the ALJ's hypothetical "failed to account for the many limitations 14 she improperly rejected, such as the numerous severe and marked limitations identified by 15 [Plaintiff's] treating doctor and treating therapists." (ECF No. 16 at 20.) The Court disagrees 16 because Plaintiff's argument that the ALJ posed an improper hypothetical is premised on 17 Plaintiff's other arguments that the Court has already rejected. 18 “Hypothetical questions posed to the [VE] must set out all the limitations and 19 restrictions of the particular claimant.” Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). 20 The testimony of a VE “is valuable only to the extent that it is supported by medical 21 evidence.” Sample v. Schweiker, 694 F.2d 639, 644 (9th Cir. 1982). The VE’s opinion about 22 a claimant’s residual functional capacity has no evidentiary value if the assumptions in the 23 hypothetical are not supported by the record. Embrey, 849 F.2d at 422. Nonetheless, an ALJ 24 is only required to present the VE with those limitations he finds to be credible and supported 25 by the evidence. Osenbrock v. Apfel, 240 F.3d 1157, 1165-66 (9th Cir. 2001). 26 In this case, the ALJ asked the VE the following hypothetical: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 12 1 2 3 4 I'd like you to assume a person of the claimant's age, education, and past relevant work experience and assume that the person is able to lift 25 to 30 pounds occasionally and 10 frequently; can stand and walk about six of eight hours and sit about six of eight hours; cannot climb a ladder, rope, or scaffold or crawl; can do occasional overhead reaching with the right dominant arm. Could this person do any of the claimant's past relevant work? 5 (Tr. at 80.) The ALJ posed additional hypothetical limitations such as if Plaintiff was limited 6 to lifted 10 pounds occasionally (Tr. at 82) or if Plaintiff had "occasional contact socially 7 with the public and others" (Tr. at 83). Based on her questioning of the VE, the ALJ 8 concluded that although Plaintiff was unable to perform past relevant work (Tr. at 23), but 9 Plaintiff was able to work "light exertion, unskilled jobs" (Tr. at 24). 10 As discussed above, the ALJ applied the proper legal standards in discounting the 11 limitations assessed by Mr. Woolpert, Ms. Jurs, Dr. Zuck, Dr. Bothamley, and Dr. Smith. 12 The limitations included in the ALJ's hypothetical questioning were supported by the record 13 and substantial medical evidence. Plaintiff fails to show that the ALJ erred at step five. See 14 Stubbs-Danielson v. Astrue, 539 F.3d 1169 (9th Cir. 2008) (a claimant fails to prove that the 15 ALJ gave an incomplete hypothetical when the claimant simply restates his arguments 16 challenging the ALJ's other findings concerning claimant's limitations). 17 18 CONCLUSION Having reviewed the record and the ALJ's findings, the Court concludes the ALJ's 19 decisions is supported by substantial evidence and is not based on legal error. Accordingly, 20 IT IS ORDERED that: 21 1. Defendant's Motion for Summary Judgment, filed April 15, 2013, ECF No. 20, 22 is GRANTED. 23 2. Plaintiff's Motion for Summary Judgment, filed February 25, 2013, ECF No. 24 16, is DENIED. 25 The District Court Executive is directed to file this Order and provide copies to 26 counsel. Judgment shall be entered for Defendant and the file shall be CLOSED. ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 13 1 DATED this 19th day of September, 2013. 2 3 4 09-18-13 s/ Wm. Fremming Nielsen WM. FREMMING NIELSEN SENIOR UNITED STATES DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 14
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