Giancola v. Colvin (previously Astrue), No. 2:2013cv00035 - Document 26 (E.D. Wash. 2014)

Court Description: DECISION AND ORDER denying ECF No. 14 Plaintiff's Motion for Summary Judgment and granting ECF No. 23 Defendant's Motion for Summary Judgment. CLOSE FILE. Signed by Magistrate Judge Victor E. Bianchini. (PH, Case Administrator)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 8 Case No. 13-CV-00035-VEB DEREK J. GIANCOLA, 9 Plaintiff, 10 vs. 11 DECISION AND ORDER CAROLYN W. COLVIN, Acting Commissioner of Social Security, 12 Defendant. 13 14 I. INTRODUCTION 15 In August of 2009, Plaintiff Derek J. Giancola applied for Supplemental 16 Security Income ( SSI ) benefits and Child s Disability Benefits 1 under the Social 17 Security Act. The Commissioner of Social Security denied the applications. 18 Plaintiff was born on July 30, 1980, and thus had not attained age 22 as of October 1, 1999, the alleged onset date. 1 19 20 1 DECISION AND ORDER GIANCOLA v COLVIN 13-CV-00035-VEB 1 Plaintiff, represented by the Dana Madsen Law Office, Joseph Linehan, Esq. 2 and Maureen J. Rosette, Esq., of counsel, commenced this action seeking judicial 3 review of the Commissioner s denial of benefits pursuant to 42 U.S.C. §§ 405 (g) 4 and 1383 (c)(3). 5 Magistrate Judge. (Docket No. 6). The parties consented to the jurisdiction of a United States 6 On January 3, 2014, the Honorable Rosanna Malouf Peterson, Chief United 7 States District Judge, referred this case to the undersigned pursuant to 28 U.S.C. § 8 636(b)(1)(A) and (B). (Docket No. 24). 9 II. BACKGROUND 10 11 The procedural history may be summarized as follows: 12 On August 31, 2009, Plaintiff applied for SSI benefits and child s insurance 13 benefits, alleging disability beginning October 1, 1999. (T at 168-77).2 14 applications were denied initially and Plaintiff requested a hearing before an 15 Administrative Law Judge ( ALJ ). On April 14, 2011, a hearing was held before 16 ALJ Caroline Siderius. (T at 45). Plaintiff appeared with an attorney and testified. 17 (T at 59-66). The ALJ also received testimony from Dr. Samuel Landau, a medical 18 expert. (T at 51-59). A further hearing was held on July 13, 2011. (T at 68). 19 2 20 Citations to ( T ) refer to the administrative record at Docket No. 11. 2 DECISION AND ORDER GIANCOLA v COLVIN 13-CV-00035-VEB The 1 Plaintiff appeared with his attorney and provided further testimony. (T at 76-77, 79- 2 88). The ALJ received testimony from Dr. John Morse, a medical expert (T at 72- 3 76, 77-79) and Diane Kramer, a vocational expert (T at 88-90). 4 On September 14, 2011, the ALJ issued a written decision denying the 5 applications for benefits and finding that Plaintiff was not disabled within the 6 meaning of the Social Security Act. (T at 20-38). The ALJ s decision became the 7 Commissioner s final decision on November 29, 2012, when the Social Security 8 Appeals Council denied Plaintiff s request for review. (T at 1-6). 9 On January 22, 2013, Plaintiff, acting by and through his counsel, timely 10 commenced this action by filing a Complaint in the United States District Court for 11 the Eastern District of Washington. (Docket No. 5). The Commissioner interposed 12 an Answer on April 1, 2013. (Docket No. 10). 13 Plaintiff filed a motion for summary judgment on July 24, 2013. (Docket No. 14 14). The Commissioner moved for summary judgment on November 27, 2013. 15 (Docket No. 23). Plaintiff filed a reply memorandum of law on December 9, 2013. 16 (Docket No. 24). As noted above, the parties consented to the jurisdiction of a 17 Magistrate Judge. (Docket No. 6). 18 19 20 For the reasons set forth below, the Commissioner s motion is granted, Plaintiff s motion is denied, and this case is closed. 3 DECISION AND ORDER GIANCOLA v COLVIN 13-CV-00035-VEB III. DISCUSSION 1 2 A. Sequential Evaluation Process 3 The Social Security Act ( the Act ) defines disability as the inability to 4 engage in any substantial gainful activity by reason of any medically determinable 5 physical or mental impairment which can be expected to result in death or which has 6 lasted or can be expected to last for a continuous period of not less than twelve 7 months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a 8 plaintiff shall be determined to be under a disability only if any impairments are of 9 such severity that a plaintiff is not only unable to do previous work but cannot, 10 considering plaintiff s age, education and work experiences, engage in any other 11 substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 12 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and 13 vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 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. Step 16 one determines if the person is engaged in substantial gainful activities. If so, 17 benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the 18 decision maker proceeds to step two, which determines whether plaintiff has a 19 medially severe impairment or combination of impairments. 20 C.F.R. §§ 20 4 DECISION AND ORDER GIANCOLA v COLVIN 13-CV-00035-VEB 1 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 2 If plaintiff does not have a severe impairment or combination of impairments, 3 the disability claim is denied. If the impairment is severe, the evaluation proceeds to 4 the third step, which compares plaintiff s impairment with a number of listed 5 impairments acknowledged by the Commissioner to be so severe as to preclude 6 substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); 20 7 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or equals one of the listed 8 impairments, plaintiff is conclusively presumed to be disabled. If the impairment is 9 not one conclusively presumed to be disabling, the evaluation proceeds to the fourth 10 step, which determines whether the impairment prevents plaintiff from performing 11 work which was performed in the past. If a plaintiff is able to perform previous work 12 that plaintiff is deemed not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 13 416.920(a)(4)(iv). At this step, plaintiff s residual functional capacity (RFC) is 14 considered. If plaintiff cannot perform past relevant work, the fifth and final step in 15 the process determines whether plaintiff is able to perform other work in the national 16 economy in view of plaintiff s residual functional capacity, age, education and past 17 work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Bowen v. 18 Yuckert, 482 U.S. 137 (1987). 19 20 5 DECISION AND ORDER GIANCOLA v COLVIN 13-CV-00035-VEB 1 The initial burden of proof rests upon plaintiff to establish a prima facie case 2 of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 3 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden is 4 met once plaintiff establishes that a mental or physical impairment prevents the 5 performance of previous work. The burden then shifts, at step five, to the 6 Commissioner to show that (1) plaintiff can perform other substantial gainful 7 activity and (2) a significant number of jobs exist in the national economy that 8 plaintiff can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 9 A person is entitled to child s insurance benefits under the Social Security Act 10 if, inter alia, the claimant is age 18 or older and has a disability that began before 11 attaining age 22. See 20 C.F.R. § 404.350(a)(5). 12 B. Standard of Review 13 Congress has provided a limited scope of judicial review of a Commissioner s 14 decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner s decision, 15 made through an ALJ, when the determination is not based on legal error and is 16 supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 17 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). The [Commissioner s] 18 determination that a plaintiff is not disabled will be upheld if the findings of fact are 19 supported by substantial evidence. Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 20 6 DECISION AND ORDER GIANCOLA v COLVIN 13-CV-00035-VEB 1 1983)(citing 42 U.S.C. § 405(g)). Substantial evidence is more than a mere scintilla, 2 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n 10 (9th Cir. 1975), but less than a 3 preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-02 (9th Cir. 1989). 4 Substantial evidence means such evidence as a reasonable mind might accept as 5 adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 6 (1971)(citations omitted). [S]uch inferences and conclusions as the [Commissioner] 7 may reasonably draw from the evidence will also be upheld. Mark v. Celebreeze, 8 348 F.2d 289, 293 (9th Cir. 1965). On review, the Court considers the record as a 9 whole, not just the evidence supporting the decision of the Commissioner. Weetman 10 v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989)(quoting Kornock v. Harris, 648 F.2d 525, 11 526 (9th Cir. 1980)). 12 It is the role of the Commissioner, not this Court, to resolve conflicts in 13 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational 14 interpretation, the Court may not substitute its judgment for that of the 15 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th 16 Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be 17 set aside if the proper legal standards were not applied in weighing the evidence and 18 making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 19 432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the 20 7 DECISION AND ORDER GIANCOLA v COLVIN 13-CV-00035-VEB 1 administrative findings, or if there is conflicting evidence that will support a finding 2 of either disability or nondisability, the finding of the Commissioner is conclusive. 3 Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 4 C. Commissioner s Decision 5 The ALJ noted that Plaintiff was born on July 30, 1980, and thus had not 6 attained age 22 as of October 1, 1999, the alleged onset date. (T at 25). The ALJ 7 found that Plaintiff had not engaged in substantial gainful activity since the alleged 8 onset date. (T at 25). The ALJ determined that Plaintiff s seizure disorder, anxiety 9 disorder, personality disorder with anti-social behavior, learning disorder, 10 methamphetamine dependence, and alcohol abuse were severe impairments under 11 the Act. (Tr. 26). 12 However, the ALJ concluded that Plaintiff did not have an impairment or 13 combination of impairments that met or medically equaled one of the impairments 14 set forth in the Listings. (T at 26-27). The ALJ determined that Plaintiff retained the 15 residual functional capacity ( RFC ) to perform a full range of work at all exertional 16 levels, with the following nonexertional limitations: no climbing ladders, ropes, or 17 scaffolds; and no working around unprotected heights or operating heavy 18 machinery/equipment. With regard to his mental RFC, the ALJ concluded that 19 20 8 DECISION AND ORDER GIANCOLA v COLVIN 13-CV-00035-VEB 1 Plaintiff could perform simple, repetitive, 1 to 3 step tasks, involving no detailed 2 work, and with occasional co-workers and public contact. (T at 27-32). 3 The ALJ found that Plaintiff could perform his past relevant work as a fast 4 food worker. (T at 32). As such, the ALJ concluded that Plaintiff had not been 5 disabled, as defined under the Act, from October 1, 1999 (the alleged onset date), 6 through September 14, 2011 (the date of the ALJ s decision) and was therefore not 7 entitled to benefits. (Tr. 32-33). As noted above, the ALJ s decision became the 8 Commissioner s final decision on November 29, 2012, when the Appeals Council 9 denied Plaintiff s request for review. (Tr. 1-6). 10 D. Plaintiff s Arguments 11 Plaintiff contends that the Commissioner s decision should be reversed. He 12 offers two (2) main arguments in support of this position. First, Plaintiff challenges 13 the ALJ s assessment of the medical evidence as it relates to his ability to perform 14 the mental demands of basic work activity. Second, Plaintiff argues that the ALJ s 15 step five analysis was flawed because the hypothetical posed to the vocational expert 16 did not accurately reflect Plaintiff s mental health limitations. 17 address both arguments in turn. This Court will 18 19 20 9 DECISION AND ORDER GIANCOLA v COLVIN 13-CV-00035-VEB 1 1. Assessment of Medical Evidence 2 As discussed above, the ALJ concluded that Plaintiff retained the RFC to 3 perform simple, repetitive, 1 to 3 step tasks, involving no detailed work, and with 4 occasional co-workers and public contact. (T at 27-32). Plaintiff argues that he is 5 more psychologically limited than the ALJ s assessment. 6 As a threshold matter, the Commissioner notes (and Plaintiff does not dispute) 7 that a prior application for child s disability benefits by Plaintiff was denied by a 8 different ALJ in May of 2006 without appeal. (T at 109). A claimant previously 9 denied benefits via a final decision of the Commissioner is presumptively considered 10 not disabled unless he or she can demonstrate changed circumstances indicating a 11 greater level of disability since the date of the prior decision. Chavez v. Bowen, 844 12 F.2d 691, 694 (9th Cir. 1998). However, while the principles of res judicata apply 13 to administrative decisions, . . . the doctrine is applied less rigidly to administrative 14 proceedings than to judicial proceedings." Chavez, 844 F.2d at 693. A prior, final 15 determination of nondisability cannot be re-litigated through the date of the prior 16 decision. Lester v. Chater, 81 F.3d 821, 827 (9th Cir. 1995). However, the 17 determination only create[s] a presumption that [the claimant] continued to be able 18 to work after the date of the prior decision. Id. (citation and internal quotation 19 marks omitted). The claimant, in order to overcome the presumption, must prove 20 10 DECISION AND ORDER GIANCOLA v COLVIN 13-CV-00035-VEB 1 changed circumstances indicating a greater disability. Chavez, 844 F.2d at 693 2 (citation omitted). In other words, the claimant must show both changed 3 circumstances and greater disability. See id. 4 Here, Plaintiff did not, during the proceedings before the Commissioner, 5 overcome the presumption and, in addition and, in the alternative, the ALJ s 6 assessment of his psychological limitations is supported by substantial evidence. 7 In January of 2010, Dr. Allen D. Bostwick, a clinical psychologist, performed 8 an intellectual assessment. Dr. Bostwick described Plaintiff as socially pleasant, 9 appropriate and cooperative. (T at 325). Plaintiff s mood was euthymic (i.e. 10 normal), with a flat affect and blunted range of expression. (T at 325). He was 11 alert, attentive, and oriented, with no acute emotional distress or unusual 12 behavioral mannerisms. (T at 325). IQ testing indicated functioning within the 13 average range of general intellectual ability with Average performance-based 14 abilities relative to upper Borderline verbal activities. (T at 325).3 Dr. Bostwick 15 found average test results for nonverbal higher level reasoning, concept-formation 16 skills, and sequencing ability/social reasoning. He assessed borderline scores on 17 tests of comprehension, vocabulary, auditory immediate memory for digits, working 18 3 19 Dr. Bostwick administrated the WAIS-III, which resulted in a Verbal Score of 79 (8th percentile), a Performance Score of 106 (66th percentile) and a Full-Scale Score of 90 (25th percentile). (T at 325). 20 11 DECISION AND ORDER GIANCOLA v COLVIN 13-CV-00035-VEB 1 memory, and visuo-perceptional speed and analysis. (T at 325). Dr. Bostwick found 2 high average scores for perceptual organization, low average verbal comprehension 3 and processing speed, and borderline working memory. (T at 326). Although Dr. 4 Bostwick noted a significant disparity between Plaintiff s verbal and performance IQ 5 scores, he opined that due to Plaintiff s limited effort on certain of the tests, his 6 verbal score was more probably than not, a mild [underestimate] of his actual 7 ability. (T at 326). 8 Dr. Bostwick diagnosed adult anti-social behavior, amphetamine dependence 9 (in reported remission), and personality disorder NOS, with immature, inadequate 10 and self-defeating features (improved since Plaintiff began abstaining from 11 methamphetamine.) (T at 326-27). He assigned a Global Assessment of Functioning 12 ( GAF ) score4 range of 65-70 (T at 327), which is indicative of mild symptoms. 13 See Wright v. Astrue, CV-09-164, 2010 U.S. Dist. LEXIS 53737, at *27 n. 7 (E.D. 14 Wa. June 2, 2010). 15 Dr. Bostwick opined that with regard to Plaintiff s psychological/mental 16 abilities, he appeared capable of participating in gainful, competitive employment 17 on a full-time basis without any significant psychological or intellectual limitations 18 19 A GAF score is a rough estimate of an individual's psychological, social, and occupational functioning used to reflect the individual's need for treatment." Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir. 1998). 20 12 4 DECISION AND ORDER GIANCOLA v COLVIN 13-CV-00035-VEB 1 or restrictions. (T at 327). 2 attention and concentration, but no significant limitation as to activities of daily 3 living and possible mild to moderate limitation regarding social functioning. (T at 4 327). 5 Dr. Kayleen He assessed moderate limitations with regard to Islam-Zwart, a clinical psychologist, performed a 6 psychological/psychiatric evaluation in March of 2011. She noted Wechsler Adult 7 Intelligence Scale ( WAIS-III ) scores as follows: Verbal score of 80, Performance 8 score of 105, and Full Scale score of 90. (T at 380). She assessed marked problems 9 with anger/irritability, irresponsibility, and cognitive problems. (T at 390). Dr. 10 Islam-Zwart diagnosed anxiety disorder NOS, intermittent explosive disorder, 11 learning disorder NOS, amphetamine dependence in full early remission, and 12 alcohol abuse. (T at 390). She assigned a GAF score of 48, which is indicative of 13 serious impairment in social, occupational or school functioning. See Onorato v. 14 Astrue, No. CV-11-0197, 2012 U.S. Dist. LEXIS 174777, at *11 n.3 (E.D.Wa. Dec. 15 7, 2012). 16 Dr. Islam-Zwart described Plaintiff as blunted and irritable during the 17 interview, with choppy and somewhat abrupt speech. (T at 395). She opined that 18 Plaintiff s presentation was such that he is unable to work at this time and his 19 prognosis for the future was poor. (T at 397). Dr. Islam-Zwart assessed marked 20 13 DECISION AND ORDER GIANCOLA v COLVIN 13-CV-00035-VEB 1 limitations as to Plaintiff s ability to be aware of normal hazards and take 2 appropriate precautions, communicate and perform effectively in a work setting with 3 limited public contact, and maintain appropriate behavior in a work setting. (T at 4 391). 5 In determining Plaintiff s RFC, the ALJ afforded little weight to Dr. Islam- 6 Zwart s opinion and significant weight to Dr. Bostwick s assessment. (T at 31-32). 7 Plaintiff argues that the ALJ should have weighed the evidence differently and 8 resolved the conflict in favor of Dr. Islam-Zwart s findings. However, it is the role 9 of the Commissioner, not this Court, to resolve conflicts in evidence. Magallanes v. 10 Bowen, 881 F.2d 747, 751 (9th Cir. 1989); Richardson, 402 U.S. at 400. If the 11 evidence supports more than one rational interpretation, this Court may not 12 substitute its judgment for that of the Commissioner. Allen v. Heckler, 749 F.2d 577, 13 579 (9th 1984). If there is substantial evidence to support the administrative 14 findings, or if there is conflicting evidence that will support a finding of either 15 disability or nondisability, the Commissioner s finding is conclusive. Sprague v. 16 Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 17 Here, both doctors possess appropriate credentials, performed a range of tests, 18 conducted a clinical evaluation, and rendered detailed opinions concerning the 19 impact of Plaintiff s mental health limitations on his ability to perform basic work 20 14 DECISION AND ORDER GIANCOLA v COLVIN 13-CV-00035-VEB 1 activities. The ALJ s decision to assign more weight to Dr. Bostwick s assessment 2 was a permissible exercise of her discretion. The ALJ reasonably noted that Dr. 3 Islam-Zwart s opinion that Plaintiff had several marked limitations was contradicted 4 by other findings in her report. For example, Plaintiff s score on a Mini-Mental 5 Status Exam was 29 out of a possible 30 points, falling above the cutoff of 24 6 reflecting impairment. (T at 396). In addition, Plaintiff exhibited mental control 7 within normal limits. (T at 396). 8 contradicted the severe limitations assessed by Dr. Islam-Zwart. It is appropriate for 9 an ALJ to discount a medical opinion based on this sort of inconsistency. See Bayliss 10 v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005)(finding that discrepancy between 11 clinical notes and opinion was a clear and convincing reason for not relying on the 12 doctor's opinion regarding the claimant s limitations). The ALJ concluded that these findings 13 In addition, the ALJ found that Dr. Islam-Zwart s conclusions were based 14 largely on Plaintiff s self-reports, which the ALJ reasonably discounted. Indeed, Dr. 15 Islam-Zwart herself noted possible symptom exaggeration. In particular, Dr. Islam- 16 Zwart opined that although Plaintiff was not malingering with regard to memory 17 problems, results on a personality assessment indicated defensiveness about 18 personal shortcomings and an exaggeration of certain problems. (T at 396). She 19 noted the potential for considerable distortion. (T at 396). Dr. William Bender, 20 15 DECISION AND ORDER GIANCOLA v COLVIN 13-CV-00035-VEB 1 Plaintiff s treating neurologist, reported concern that Plaintiff was not trying as 2 fully as he could, potentially for some secondary gain. (T at 348). It is reasonable 3 for an ALJ to discount a medical opinion predicated on subjective complaints found 4 to be less than credible. See Bray v. Comm r of Soc. Sec., 554 F.3d 1219, 1228 (9th 5 Cir. 2009). 6 Significant other evidence in the record also supported the ALJ s decision to 7 discount Dr. Islam-Zwart s opinion. As noted above, Dr. Bostwick concluded that 8 Plaintiff appeared capable of participating in gainful, competitive employment on a 9 full-time basis without any significant psychological or intellectual limitations or 10 restrictions. (T at 327). An assessment performed by Alan Utley, a mental health 11 counselor, in March of 2011 indicated a GAF score of 55 (T at 406), which is 12 indicative of moderate symptoms or difficulty in social, occupational or education 13 functioning. See Amy v. Astrue, No. CV-11-319, 2013 U.S. Dist. LEXIS 2297, at 14 *19 n.2 (E.D.Wa Jan. 7, 2013). A January 2010 assessment by Dr. James Bailey, a 15 non-examining State Agency review consultant, indicated that Plaintiff could 16 remember both simple and complex instructions, carry out simple and more complex 17 instructions, exhibit appropriate behavior in formal settings, and handle simple 18 variations in routines. (T at 367). Dr. Bailey opined that Plaintiff would do best with 19 minimal co-worker, supervisor, and public contact (T at 367), a limitation the ALJ 20 16 DECISION AND ORDER GIANCOLA v COLVIN 13-CV-00035-VEB 1 generally incorporated into his RFC determination. Dr. Mary Gentile, another State 2 Agency review consultant, reviewed the record in October 2010 and affirmed Dr. 3 Bailey s assessment. (T at 377). The ALJ incorporated the narrative assessment of 4 Dr. Bailey, as confirmed by Dr. Gentile, into the RFC determination. This was 5 proper and provided further support for the ALJ s decision. See Stubbs-Danielson v. 6 Astrue, 539 F.3d 1169, 1173-74 (9th Cir. 2008). 7 In sum, the ALJ s assessment of the medical evidence and determination 8 regarding Plaintiff s mental RFC were supported by substantial evidence, including 9 the opinions of examining and non-examining medical sources. The assessment and 10 determination must therefore be sustained. See Tackett v. Apfel, 180 F.3d 1094, 1098 11 (9th Cir. 1999)(holding that if evidence reasonably supports the Commissioner s 12 decision, the reviewing court must uphold the decision and may not substitute its 13 own judgment). 14 2. 15 At step five of the sequential evaluation, the burden is on the Commissioner to 16 show that (1) the claimant can perform other substantial gainful activity and (2) a 17 significant number of jobs exist in the national economy which the claimant can 18 perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). If a claimant cannot 19 return to his previous job, the Commissioner must identify specific jobs existing in 20 17 Step Five Analysis DECISION AND ORDER GIANCOLA v COLVIN 13-CV-00035-VEB 1 substantial numbers in the national economy that the claimant can perform. See 2 Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir.1995). 3 The Commissioner may carry this burden by eliciting the testimony of a 4 vocational expert in response to a hypothetical that sets out all the limitations and 5 restrictions of the claimant. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.1995). 6 The ALJ's depiction of the claimant's disability must be accurate, detailed, and 7 supported by the medical record. Gamer v. Secretary of Health and Human Servs., 8 815 F.2d 1275, 1279 (9th Cir.1987). If the assumptions in the hypothetical are not 9 supported by the record, the opinion of the vocational expert that claimant has a 10 residual working capacity has no evidentiary value. Gallant v. Heckler, 753 F.2d 11 1450, 1456 (9th Cir. 1984). 12 Here, the ALJ relied on the testimony of a vocational expert and determined 13 that Plaintiff could perform his past relevant work as a fast food worker. (T at 32). 14 The ALJ asked the vocational expert to assume a claimant the same age as Plaintiff, 15 with the same education and work experience, with no physical limitations other 16 than an inability to climb ladders, ropes, and scaffolding, and limited to simple, 17 repetitive, 1 to 3 step tasks and only occasional contact with the public and co- 18 workers. (T at 89). The vocational expert opined that a hypothetical claimant with 19 these limitations could perform Plaintiff s past relevant work. (T at 89). The ALJ s 20 18 DECISION AND ORDER GIANCOLA v COLVIN 13-CV-00035-VEB 1 hypothetical incorporated the limitations set forth in her RFC determination. That 2 determination was supported by substantial evidence for the reasons outlined above. 3 An ALJ is not obliged to accept as true limitations alleged by Plaintiff and may 4 decline to include such limitations in the vocational expert s hypothetical if they are 5 not supported by sufficient evidence. See Martinez v. Heckler, 807 F.2d 771 (9th 6 Cir. 1986); see also Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). This 7 Court thus finds no reversible error in the ALJ s step five analysis. 8 9 10 IV. CONCLUSION 11 After carefully reviewing the administrative record, this Court finds 12 substantial evidence supports the Commissioner s decision, including the objective 13 medical evidence and supported medical opinions. It is clear that the ALJ thoroughly 14 examined the record, afforded appropriate weight to the medical evidence, including 15 the assessments of the examining medical providers and the non-examining 16 consultants, and afforded the subjective claims of symptoms and limitations an 17 appropriate weight when rendering a decision that Plaintiff is not disabled. This 18 Court finds no reversible error and because substantial evidence supports the 19 20 19 DECISION AND ORDER GIANCOLA v COLVIN 13-CV-00035-VEB 1 Commissioner s decision, the Commissioner is GRANTED summary judgment and 2 that Plaintiff s motion for judgment summary judgment is DENIED. V. ORDERS 3 4 IT IS THEREFORE ORDERED that: 5 Plaintiff s motion for summary judgment, Docket No. 14, is DENIED. 6 The Commissioner s motion for summary judgment, Docket No. 23, is 7 8 9 GRANTED. The District Court Executive is directed to file this Order, provide copies to counsel, enter judgment in favor of the Commissioner, and close this case. 10 11 DATED this 28th day of May, 2014. 12 13 14 15 /s/Victor E. Bianchini VICTOR E. BIANCHINI UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 20 DECISION AND ORDER GIANCOLA v COLVIN 13-CV-00035-VEB

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