House v. Colvin, No. 2:2013cv00408 - Document 19 (E.D. Wash. 2014)

Court Description: ORDER DENYING 16 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING 17 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Judgment is entered in favor of Defendant. The file is CLOSED. Signed by Judge Thomas O. Rice. (BF, Judicial Assistant)

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1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 DESIREE L. HOUSE, NO: 13-CV-0408-TOR 8 Plaintiff, 9 10 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, 11 Defendant. 12 13 BEFORE THE COURT are the parties’ cross-motions for summary 14 judgment (ECF Nos. 16, 17). Dana C. Madsen represents Plaintiff. Sarah L. 15 Martin represents Defendant. The Court has reviewed the administrative record 16 and the parties’ completed briefing and is fully informed. For the reasons 17 discussed below, the Court grants Defendant’s motion and denies Plaintiff’s 18 motion. 19 // 20 // ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 1 2 3 4 5 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3). STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 6 Security is governed by 42 U.S.C. § 405(g). The scope of review under §405(g) is 7 limited: the Commissioner’s decision will be disturbed “only if it is not supported 8 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 9 1158 (9th Cir. 2012) (citing 42 U.S.C. § 405(g)). “Substantial evidence” means 10 relevant evidence that “a reasonable mind might accept as adequate to support a 11 conclusion.” Id., at 1159 (quotation and citation omitted). Stated differently, 12 substantial evidence equates to “more than a mere scintilla[,] but less than a 13 preponderance.” Id. (quotation and citation omitted). In determining whether this 14 standard has been satisfied, a reviewing court must consider the entire record as a 15 whole rather than searching for supporting evidence in isolation. Id. 16 In reviewing a denial of benefits, a district court may not substitute its 17 judgment for that of the Commissioner. If the evidence in the record “is 18 susceptible to more than one rational interpretation, [the court] must uphold the 19 ALJ’s findings if they are supported by inferences reasonably drawn from the 20 record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 court “may not reverse an ALJ’s decision on account of an error that is harmless.” 2 Id. at 1111. An error is harmless “where it is inconsequential to the [ALJ’s] 3 ultimate nondisability determination.” Id. at 1115 (quotation and citation omitted). 4 The party appealing the ALJ’s decision generally bears the burden of establishing 5 that it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 6 7 FIVE-STEP SEQUENTIAL EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 8 the meaning of the Social Security Act. First, the claimant must be “unable to 9 engage in any substantial gainful activity by reason of any medically determinable 10 physical or mental impairment which can be expected to result in death or which 11 has lasted or can be expected to last for a continuous period of not less than twelve 12 months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment must be 13 “of such severity that he is not only unable to do his previous work[,] but cannot, 14 considering his age, education, and work experience, engage in any other kind of 15 substantial gainful work which exists in the national economy.” 42 U.S.C. 16 § 1382c(a)(3)(B). 17 The Commissioner has established a five-step sequential analysis to 18 determine whether a claimant satisfies the above criteria. See 20 C.F.R. 19 § 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s 20 work activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 “substantial gainful activity,” the Commissioner must find that the claimant is not 2 disabled. 20 C.F.R. § 416.920(b). 3 If the claimant is not engaged in substantial gainful activities, the analysis 4 proceeds to step two. At this step, the Commissioner considers the severity of the 5 claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from 6 “any impairment or combination of impairments which significantly limits [his or 7 her] physical or mental ability to do basic work activities,” the analysis proceeds to 8 step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy 9 this severity threshold, however, the Commissioner must find that the claimant is 10 11 not disabled. Id. At step three, the Commissioner compares the claimant’s impairment to 12 several impairments recognized by the Commissioner to be so severe as to 13 preclude a person from engaging in substantial gainful activity. 20 C.F.R. 14 § 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the 15 enumerated impairments, the Commissioner must find the claimant disabled and 16 award benefits. 20 C.F.R. § 416.920(d). 17 If the severity of the claimant’s impairment does meet or exceed the severity 18 of the enumerated impairments, the Commissioner must pause to assess the 19 claimant’s “residual functional capacity.” Residual functional capacity (“RFC”), 20 defined generally as the claimant’s ability to perform physical and mental work ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 activities on a sustained basis despite his or her limitations (20 C.F.R. 2 § 416.945(a)(1)), is relevant to both the fourth and fifth steps of the analysis. 3 At step four, the Commissioner considers whether, in view of the claimant’s 4 RFC, the claimant is capable of performing work that he or she has performed in 5 the past (“past relevant work”). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is 6 capable of performing past relevant work, the Commissioner must find that the 7 claimant is not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of 8 performing such work, the analysis proceeds to step five. 9 At step five, the Commissioner considers whether, in view of the claimant’s 10 RFC, the claimant is capable of performing other work in the national economy. 11 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the Commissioner 12 must also consider vocational factors such as the claimant’s age, education and 13 work experience. Id. If the claimant is capable of adjusting to other work, the 14 Commissioner must find that the claimant is not disabled. 20 C.F.R. 15 § 416.920(g)(1). If the claimant is not capable of adjusting to other work, the 16 analysis concludes with a finding that the claimant is disabled and is therefore 17 entitled to benefits. Id. 18 The claimant bears the burden of proof at steps one through four above. 19 Lockwood v. Comm’r of Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). If 20 the analysis proceeds to step five, the burden shifts to the Commissioner to ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 establish that (1) the claimant is capable of performing other work; and (2) such 2 work “exists in significant numbers in the national economy.” 20 C.F.R. 3 § 416.960(c)(2); Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). ALJ’S FINDINGS 4 5 Plaintiff Desiree House applied for supplemental security income on April 6 24, 2009. Tr. 97-100. Her application was denied initially and upon 7 reconsideration, Tr. 66-69, 73-74, and Plaintiff requested a hearing, Tr. 76. 8 Plaintiff appeared before an administrative law judge (“ALJ”) on May 18, 2010. 9 Tr. 23-63. On June 10, 2010, the ALJ issued a decision, finding that Plaintiff was 10 not disabled. Tr. 10-22. The Appeals Council denied Plaintiff’s request for review 11 on July 27, 2011. Tr. 1-6. On September 6, 2011, Plaintiff appealed the ALJ’s final decision to the 12 13 U.S. District Court of the Eastern District of Washington. Tr. 581-86. The parties 14 filed a stipulated motion for remand, Tr. 591-94, which the court granted, Tr. 588- 15 90. As a result, the ALJ’s decision was reversed and the case remanded for 16 additional proceedings pursuant to sentence four of 42 U.S.C. § 405(g). Tr. 587- 17 90. 18 On remand, Plaintiff appeared before an ALJ on September 26, 2012, and 19 then again on January 25, 2013. Tr. 529-47, 548-80. On February 14, 2013, the 20 ALJ again issued a decision finding Plaintiff was not disabled. Tr. 500-28. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 At step one, the ALJ found that Plaintiff had not engaged in substantial 2 gainful activity since April 24, 2009, the application date. Tr. 506. At step two, 3 the ALJ found that Plaintiff had the following severe impairments: “grade 2 4 spondylosis at L5-S1 status post fusion; pars defect at L5; obesity; status post right 5 knee fracture; asthma; borderline intellectual functioning; dysthymia, not otherwise 6 specified; anxiety disorder, not otherwise specified; and personality disorder, not 7 otherwise specified.” Tr. 506. At step three, the ALJ found that Plaintiff’s severe 8 impairments did not meet or medically equal a listed impairment. Tr. 506-09. The 9 ALJ then determined that Plaintiff had the RFC 10 11 12 13 14 15 16 17 18 19 to perform sedentary work as defined in 20 CFR 416.967(a). The claimant is able to occasionally lift/carry up to 20 pounds and frequently up to 10 pounds. She is able to stand/walk up to six hours in an eight-hour workday with normal breaks and she is able to sit for six hours in an eight-hour workday with normal breaks. She is able to occasionally climb stairs and ramps and never climb ladders, ropes, and scaffolds. She can occasionally stoop, kneel, crouch, and crawl. She should avoid concentrated exposure to fume, odors, dusts, gases, and poor ventilation. The claimant has the ability to listen, understand, remember, and follow simple instructions. She is likely to have difficulty with complex, multi-step tasks. She is likely to do best if she does not have to interact closely with supervisors and coworkers. She has good persistence and pace and she would be able to remain on task. The claimant has physical and mental symptomatology, including mild to moderate occasional to frequent pain, and she takes medication for the symptomatology. However, despite the level of pain and/or the effects of the medication, the claimant would be able to remain reasonably attentive and responsive in the work setting in order to carry out normal work assignments. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 Tr. 509. At step four, the ALJ found that Plaintiff did not have any past relevant 2 work. Tr. 520. At step five, after considering the Plaintiff’s age, education, work 3 experience, and RFC, the ALJ found Plaintiff could perform other work existing in 4 significant numbers in the national economy, such as housekeeping cleaner, 5 cannery worker, production assembler, bench hand, and sewing machine operator. 6 Tr. 521. Thus, the ALJ concluded that Plaintiff was not disabled and denied her 7 claim on that basis. Tr. 522. 8 9 10 The Appeals Council denied Plaintiff’s request for review on October 10, 2013, Tr. 453-56, making the ALJ’s decision the Commissioner’s final decision for purposes of judicial review. 42 U.S.C. § 405(g); 20 C.F.R. § 404.981. 11 12 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 13 her supplemental security income under Title XVI of the Social Security Act. This 14 Court has identified three issues for its review: 15 1. Whether the ALJ erred in making an adverse credibility determination; 16 17 18 2. Whether the ALJ properly weighed the medical opinions of Dr. Dennis R. Pollack and Dr. Anthony Francis; and 3. Whether the ALJ failed to pose a legally sufficient hypothetical question to the vocational expert. 19 20 ECF No. 16 at 12-18. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 DISCUSSION 2 A. Adverse Credibility Determination 3 In social security proceedings, a claimant must prove the existence of 4 physical or mental impairment with “medical evidence consisting of signs, 5 symptoms, and laboratory findings.” 20 C.F.R. §§ 416.908, 416.927. A claimant’s 6 statements about his or her symptoms alone will not suffice. 20 C.F.R. §§ 7 416.908, 416.927. Once an impairment has been proven to exist, an ALJ “may not 8 reject a claimant’s subjective complaints based solely on a lack of objective 9 medical evidence to fully corroborate the alleged severity of pain.” Bunnell v. 10 Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc). As long as the impairment 11 “could reasonably be expected to produce [the] symptoms,” the claimant may offer 12 a subjective evaluation as to the severity of the impairment. Id. This rule 13 recognizes that the severity of a claimant’s symptoms “cannot be objectively 14 verified or measured.” Id. at 347 (quotation and citation omitted). 15 In order to find Plaintiff’s testimony unreliable, the ALJ is required to make 16 “a credibility determination with findings sufficiently specific to permit the court 17 to conclude that the ALJ did not arbitrarily discredit claimant's testimony.” 18 Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). An ALJ must perform a 19 two-step analysis when deciding whether to accept a claimant's subjective 20 symptom testimony. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). The ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 first step is a threshold test from Cotton v. Bowen requiring the claimant to 2 “produce medical evidence of an underlying impairment which is reasonably likely 3 to be the cause of the alleged pain.” 799 F.2d 1403, 1407 (9th Cir. 1986); see also 4 Bunnell, 947 F.2d at 343. “Once a claimant meets the Cotton test and there is no 5 affirmative evidence suggesting she is malingering, the ALJ may reject the 6 claimant’s testimony regarding the severity of her symptoms only if [the ALJ] 7 makes specific findings stating clear and convincing reasons for doing so.” 8 Smolen, 80 F.3d at 1283-84 (citing Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 9 1993)). In weighing the claimant’s credibility, the ALJ may consider many 10 factors, including “‘(1) ordinary techniques of credibility evaluation, such as the 11 claimant’s reputation for lying, prior inconsistent statements concerning the 12 symptoms, and other testimony by the claimant that appears less than candid; (2) 13 unexplained or inadequately explained failure to seek treatment or to follow a 14 prescribed course of treatment; and (3) the claimant's daily activities.’” 15 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quoting Smolen, 80 16 F.3d at 1284). If the ALJ's finding is supported by substantial evidence, the court 17 may not engage in second-guessing. Id. “Contradiction with the medical record is 18 a sufficient basis for rejecting the claimant’s subjective testimony.” Carmickle v. 19 Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) (citing Johnson v. 20 Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 Here, Plaintiff contends the ALJ improperly discounted her credibility, citing 2 each reason proffered by the ALJ as insufficient. ECF No. 16 at 12-15. In response, 3 Defendant asserts the ALJ offered several reasons, supported by substantial 4 evidence, for finding Plaintiff’s allegations not credible. ECF No. 17 at 5. 5 This Court finds the ALJ provided the following specific, clear, and 6 convincing reasoning supported by substantial evidence for finding Plaintiff’s 7 subjective statements not “entirely credible”: (1) Plaintiff failed to comply with 8 recommended treatment; and (2) Plaintiff made several inconsistent statements 9 throughout the record. Tr. 511-17. 10 First, the ALJ found that Plaintiff’s statements concerning the severity of her 11 limitations were inconsistent with her failure to fully comply with recommended 12 treatment. Tr. 511. For instance, the ALJ noted the following regarding Plaintiff’s 13 treatment: 14 15 16 17 18 19 [Plaintiff] did develop some bursitis; yet, she had sporadic treatment for this condition and has not had treatment for bursitis since January 2010, with a normal examination of the hip in April 2010. The claimant fractured her right knee but the evidence shows she has received infrequent conservative treatment for her right knee since the initial injury. The claimant has asthma; yet, the claimant’s random treatment from general practitioners has left her asthma uncontrolled. In general, the record shows the claimant has a history of not following up with recommended treatment, including physical therapy, follow up appointments, and specialty referrals . . . She gets medication management through her primary care providers; yet, she sees her primary care providers randomly. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 Tr. 511. These inconsistencies between Plaintiff’s alleged limitations and her 2 failure to comply with recommended treatment provided a permissible and 3 legitimate reason for discounting Plaintiff’s credibility. Tommasetti, 533 F.3d at 4 1039 (finding that a plaintiff’s “unexplained or inadequately explained failure to 5 seek treatment or to follow a prescribed course of treatment” provided legitimate 6 reason for rejecting claimant’s credibility) (citation omitted). 7 Second, the ALJ found several inconsistencies throughout the record in 8 Plaintiff’s statements. Tr. 516-17. At the hearing, Plaintiff testified to the 9 following: she is only able to walk two blocks; when she needs to stand in line, she 10 finds a place where she can alternate between sitting and standing because she can 11 only stand for ten to fifteen minutes; she never does housework and depends on her 12 children to help her; and she does not do a lot of cooking. Tr. 510-11. However, 13 in her function report, Plaintiff admitted “she could prepare complete meals but her 14 son helps her; she kept a clean house; one mode of transportation was walking; and 15 she grocery shopped in stores for two to three hours at a time.” Tr. 516, 106-13. 16 Further, in statements to medical professionals, Plaintiff stated that she was 17 responsible for the care of her children; visited with friends or family daily; and 18 did household chores, such as washing dishes, making beds, and washing clothes. 19 Tr. 516-17, 414, 710. These inconsistencies between Plaintiff’s statements 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 provided a permissible and legitimate reason for discounting Plaintiff’s credibility. 2 Thomas, 278 F.3d at 958. 3 Accordingly, because the ALJ provided specific, clear, and convincing 4 reasons based on substantial evidence for discounting Plaintiff’s credibility, this 5 Court does not find error. 6 B. Opinion Evidence 7 There are three types of physicians: “(1) those who treat the claimant 8 (treating physicians); (2) those who examine but do not treat the claimant 9 (examining physicians); and (3) those who neither examine nor treat the claimant 10 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” 11 Holohan, 246 F.3d at 1201-02 (citations omitted). “Generally, a treating 12 physician’s opinion carries more weight than an examining physician’s, and an 13 examining physician’s opinion carries more weight than a reviewing physician’s.” 14 Id. at 1202. “In addition, the regulations give more weight to opinions that are 15 explained than to those that are not . . . and to the opinions of specialists 16 concerning matters relating to their specialty over that of nonspecialists.” Id. 17 (citations omitted). A physician’s opinion may be entitled to little, if any, weight 18 when it is an opinion on a matter not related to her or his area of specialization. Id. 19 at 1203 n.2 (citation omitted). 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 A treating physician’s opinions are generally entitled to substantial weight in 2 social security proceedings. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 3 1228 (9th Cir. 2009). If a treating or examining physician’s opinion is 4 uncontradicted, an ALJ may reject it only by offering “clear and convincing 5 reasons that are supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 6 1211, 1216 (9th Cir. 2005). “However, the ALJ need not accept the opinion of any 7 physician, including a treating physician, if that opinion is brief, conclusory and 8 inadequately supported by clinical findings.” Bray, 554 F.3d at 1228 (quotation 9 and citation omitted). “If a treating or examining doctor’s opinion is contradicted 10 by another doctor’s opinion, an ALJ may only reject it by providing specific and 11 legitimate reasons that are supported by substantial evidence.” Bayliss, 427 F.3d at 12 1216 (citing Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995)). An ALJ may 13 also reject a treating physician’s retrospective opinion which is merely based on a 14 review of Plaintiff’s historical records, rather than on the treating physician’s 15 contemporaneous evaluation. Magallanes v. Bowen, 881 F.2d 747, 754 (9th Cir. 16 1989). 17 1. Dr. Dennis Pollack 18 Here, Plaintiff contends the ALJ erred by improperly rejecting the opinion of 19 Dr. Pollack, an examining psychologist. ECF No. 16 at 15-17. Specifically, 20 Plaintiff points to Dr. Pollack’s July 2010 evaluation in which he concluded ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 Plaintiff suffered from numerous work-related limitations and mental retardation. 2 Id. at 15; Tr. 411-20. 3 This Court finds the ALJ properly assigned Dr. Pollack’s opinion “little 4 weight.” Because Dr. Pollack’s opinion was contradicted, see Tr. 518 (noting the 5 contradictory diagnoses of Joyce Everhart, Ph.D.), the ALJ need only have given 6 specific and legitimate reasoning supported by substantial evidence to reject it. 7 Bayliss, 427 F.3d at 1216. 8 9 10 11 12 13 14 15 First, the ALJ noted the inconsistencies between Dr. Pollack’s opinion and his test results. The ALJ excerpted the following from Dr. Pollack’s own assessment regarding the unreliability of his testing: Her intelligence test scores appear to understate her intelligence as the intelligence required for work that she has performed is greater than shown on the intelligence testing. Her scores could be the result of poor effort as she gave up readily on many tasks and no amount of encouragement resulted in additional effort. In addition, she was able to complete the complex intake form and the personality tests successfully. Her spelling was good and her written answers lucid. Finally, she was able to perform on five digit span items forward but was able to perform six backward. This is very unusual. 16 Tr. 519; see Tr. 416. Because the ALJ need not accept a medical opinion 17 that is “inadequately supported by clinical findings,” Bray, 554 F.3d at 1228, 18 the ALJ provided a specific and legitimate reason for rejecting Dr. Pollack’s 19 opinion. Further, the ALJ may reject a medical opinion based on tests, such 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 as Dr. Pollack’s, which outcome is within the Plaintiff’s control. 2 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). 3 Second, the ALJ found that Dr. Pollack’s opinion was inconsistent with 4 other medical evidence in the record. For instance, Dr. Everhart’s June 2012 5 testing supported a diagnosis of borderline intellectual functioning, not mental 6 retardation as Dr. Pollack had opined. Tr. 535-36, 712. Further, although Dr. 7 Pollack opined Plaintiff would have marked limitations in areas of sustained 8 concentration and persistence, Tr. 418, Dr. Everhart concluded that although 9 Plaintiff would have some difficulty with executive functioning and maintaining 10 attention, she could listen, understand, and remember simple directions. Tr. 519- 11 20, 713. Because contrary opinions provide a specific and legitimate reason for 12 rejecting a medical opinion, see Tonapetyan, 242 F.3d at 1149, the ALJ did not err 13 in only affording Dr. Pollack’s opinion little weight. 14 Plaintiff contends the ALJ’s rejection of Dr. Pollack’s opinion was 15 influenced by impermissible bias. ECF No. 16 at 16-17. In support of this 16 assertion, Plaintiff states that because the ALJ gave Dr. Margaret Moore’s opinion 17 “significant weight,” an opinion which contains “sweeping statements” about the 18 accuracy of Dr. Pollack’s methods, the ALJ relied on matters outside of the record 19 when rejecting Dr. Pollack’s opinion. Id. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 This Court finds that, even assuming the ALJ considered Dr. Moore’s 2 comments when deciding to afford Dr. Pollack’s opinion “little weight,” any error 3 would be harmless. First, the ALJ gave other specific and legitimate reasons for 4 rejecting Dr. Pollack’s opinion, apart from Dr. Moore’s comments. Second, 5 Plaintiff fails to explain how this information affected the ALJ’s ultimate 6 determination. This Court will decline to reverse an ALJ’s decision on account of 7 harmless error, which is defined as an error that is “inconsequential to the [ALJ’s] 8 ultimate nondisability determination.” Molina, 674 F.3d at 1111, 1115. The ALJ 9 agreed that, based on the evidence in the record, Plaintiff would have some 10 cognitive limitations and difficulties with social functioning; however, not to the 11 extent opined by Dr. Pollack and unsupported by the record. Tr. 519-20. In 12 recognition of Plaintiff’s limitations, the ALJ included the following in the RFC 13 finding: 14 The claimant has the ability to listen, understand, remember, and follow simple instructions. She is likely to have difficulty with complex, multi-step tasks. She is likely to do best if she does not have to interact closely with supervisors and coworkers. She has good persistence and pace and she would be able to remain on task. 15 16 17 Tr. 509. Therefore, Plaintiff has failed to explain how Dr. Pollack’s 18 diagnosis, if given greater weight, would have changed the ALJ’s ultimate 19 nondisability findings. 20 // ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 2. Dr. Francis 2 Here, Plaintiff contends the ALJ erred by improperly rejecting the opinion of 3 Dr. Anthony Francis, the testifying medical expert at Plaintiff’s May 2010 hearing. 4 ECF No. 16 at 17. Specifically, Plaintiff points to Dr. Francis’ May 2010 5 statements, in which he concluded Plaintiff suffered from radiculopathy prior to 6 surgery. Id.; Tr. 33-34, 517. 7 This Court finds the ALJ properly assigned Dr. Francis’ opinion only “some 8 weight.” Because Dr. Francis’ opinion is that of a non-examining physician, the 9 ALJ need only reference specific evidence in the medical record to reject it. Sousa 10 v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998). Regarding Dr. Francis’ opinion 11 that Plaintiff suffered from radiculopathy, the ALJ first noted there was no 12 objective medical evidence in the record to support such a finding. Tr. 517. 13 Second, the ALJ noted the only evidence supporting such a diagnosis was 14 Plaintiff’s subjective complaints of pain radiating into her lower extremities. Tr. 15 517. As discussed above, the ALJ offered sufficient justification for rejecting 16 Plaintiff’s credibility. Because the ALJ need not accept a medical opinion based 17 on a claimant’s non-credible self-reporting, Tomasetti, 533 F.3d at 1041, the ALJ 18 properly rejected this diagnosis. 19 20 This Court finds that, even assuming the ALJ impermissibly rejected Dr. Francis’ opinion, any error would be harmless. Plaintiff fails to explain how this ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 information would have affected the ALJ’s ultimate determination. This Court 2 will decline to reverse an ALJ’s decision on account of harmless error, which is 3 defined as an error that is “inconsequential to the [ALJ’s] ultimate nondisability 4 determination.” Molina, 674 F.3d at 1111, 1115. The ALJ, when questioning the 5 vocational expert, asked whether Plaintiff would be able to perform jobs existing in 6 the national economy if limited to sedentary work, as opined by Dr. Francis. Tr. 7 517, 555-56. In response, the vocational expert testified that someone with 8 Plaintiff’s characteristics limited to sedentary work would still be able to perform 9 the jobs of bench hand and sewing machine operator. Tr. 555-56. Therefore, 10 Plaintiff has failed to explain how Dr. Francis’ opinion, if given greater weight, 11 would have changed the ALJ’s ultimate nondisability findings. 12 Accordingly, the ALJ did not err in rejecting Dr. Francis’ opinion. 13 C. Hypothetical Question Posed to Vocational Expert 14 “Hypothetical questions posed to the vocational expert must set out all the 15 limitations and restrictions of the particular claimant . . . .” Embrey v. Bowen, 849 16 F.2d 418, 422 (9th Cir. 1988). “Unless the record indicates that the ALJ had 17 specific and legitimate reasons for disbelieving a claimant’s testimony as to 18 subjective limitations such as pain, those limitations must be included in the 19 hypothetical in order for the vocational expert's testimony to have any evidentiary 20 value.” Id. at 423. “If the assumptions in the hypothetical are not supported by the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19 1 record, the opinion of the vocational expert that claimant has a residual working 2 capacity has no evidentiary value.” Gallant v. Heckler, 753 F.2d 1450, 1456 (9th 3 Cir. 1984). 4 Plaintiff contends the ALJ’s hypothetical question posed to the vocational 5 expert did not adequately express the full extent of her limitations. ECF No. 16 at 6 17-18. Specifically, Plaintiff contends that the hypothetical should have described 7 a person limited to sedentary work, as opined by Dr. Francis, and with Plaintiff’s 8 mental limitations, as opined by Dr. Moore. Id. at 17-18. If it had, according to 9 Plaintiff, she would have been deemed unable to work. Id. at 18. 10 The Court finds the hypothetical question posed by the ALJ was legally 11 sufficient. Plaintiff’s argument is derivative of her arguments concerning the 12 ALJ’s rejection of Dr. Francis’ opinion. Given that the ALJ properly rejected Dr. 13 Francis’ opinion, as discussed above, no error has been shown. Even assuming it 14 was error not to include Dr. Francis’ opinion, any error was harmless as the 15 vocational expert testified that someone with Plaintiff’s characteristics limited to 16 sedentary work would still be able to perform the jobs of bench hand and sewing 17 machine operator. Tr. 555-56; see Molina, 674 F.3d at 1115. Thus, the ALJ’s 18 ultimate nondisability determination would not have been disturbed. Further, the 19 ALJ afforded “significant weight” to Dr. Moore’s opinion and ultimately 20 incorporated Dr. Moore’s conclusions about Plaintiff’s mental limitations, to the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 20 1 extent supported by the record, in the RFC finding . See Tr. 509, 518-19. 2 Therefore, given that the hypothetical question included the extent of Plaintiff’s 3 impairments supported by the record, no error has been shown. 4 ACCORDINGLY, IT IS HEREBY ORDERED: 5 1. Plaintiff’s Motion for Summary Judgment (ECF No. 16) is DENIED. 6 2. Defendant’s Motion for Summary Judgment (ECF No. 17) is 7 GRANTED. 8 The District Court Executive is hereby directed to file this Order, enter 9 JUDGMENT for Defendant, provide copies to counsel, and CLOSE the file. 10 DATED December 10, 2014. 11 12 THOMAS O. RICE United States District Judge 13 14 15 16 17 18 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 21

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