Ortega v. Colvin, No. 2:2013cv03078 - Document 25 (E.D. Wash. 2014)

Court Description: DECISION AND ORDER denying Plaintiff's 21 Motion for Summary Judgment; granting Defendan'ts 22 Motion for Summary Judgment. File is closed. Signed by Magistrate Judge Victor E. Bianchini. (RG, Case Administrator)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 Case No. 13-CV-03078-VEB DAVID ORTEGA, 10 Plaintiff, DECISION AND ORDER 11 vs. 12 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 13 14 15 Defendant. I. INTRODUCTION 16 In July of 2009, Plaintiff Daniel Ortega applied for Supplemental Security 17 Income ( SSI ) benefits under the Social Security Act. The Commissioner of Social 18 Security denied the application. 19 20 1 DECISION AND ORDER ORTEGA v COLVIN 13-CV-03078-VEB 1 Plaintiff, represented by D. James Tree, Esq., commenced this action seeking 2 judicial review of the Commissioner s denial of benefits pursuant to 42 U.S.C. §§ 3 405 (g) and 1383 (c)(3). The parties consented to the jurisdiction of a United States 4 Magistrate Judge. (Docket No. 7). 5 On April 2, 2014, the Honorable Rosanna Malouf Peterson, Chief United 6 States District Judge, referred this case to the undersigned pursuant to 28 U.S.C. § 7 636(b)(1)(A) and (B). (Docket No. 23). 8 9 II. BACKGROUND 10 The procedural history may be summarized as follows: 11 On July 29, 2009, Plaintiff applied for SSI benefits, alleging disability 12 beginning May 28, 2007. (T at 21, 141-45). 1 The application was denied initially 13 and Plaintiff requested a hearing before an Administrative Law Judge ( ALJ ). On 14 August 2, 2011, a hearing was held before ALJ James Sherry. (T at 37). Plaintiff 15 appeared with an attorney and testified. (T at 42-62). The ALJ also received 16 testimony from Thomas Polsin, a vocational expert. (T at 62-70). 17 On November 3, 2011, the ALJ issued a written decision denying the 18 application for benefits and finding that Plaintiff was not disabled within the 19 1 20 Citations to ( T ) refer to the administrative record at Docket No. 13. 2 DECISION AND ORDER ORTEGA v COLVIN 13-CV-03078-VEB 1 meaning of the Social Security Act. (T at 18-36). The ALJ s decision became the 2 Commissioner s final decision on May 31, 2013, when the Social Security Appeals 3 Council denied Plaintiff s request for review. (T at 1-8). 4 On July 29, 2013, Plaintiff, acting by and through his counsel, timely 5 commenced this action by filing a Complaint in the United States District Court for 6 the Eastern District of Washington. (Docket No. 5). The Commissioner interposed 7 an Answer on December 6, 2013. (Docket No. 12). 8 Plaintiff filed a motion for summary judgment on February 18, 2014. (Docket 9 No. 21). The Commissioner moved for summary judgment on March 31, 2014. 10 (Docket No. 22). Plaintiff filed a reply memorandum of law on April 15, 2014. 11 (Docket No. 24). As noted above, the parties consented to the jurisdiction of a 12 Magistrate Judge. (Docket No. 7). 13 14 For the reasons set forth below, the Commissioner s motion is granted, Plaintiff s motion is denied, and this case is closed. 15 16 17 III. DISCUSSION A. Sequential Evaluation Process 18 The Social Security Act ( the Act ) defines disability as the inability to 19 engage in any substantial gainful activity by reason of any medically determinable 20 3 DECISION AND ORDER ORTEGA v COLVIN 13-CV-03078-VEB 1 physical or mental impairment which can be expected to result in death or which has 2 lasted or can be expected to last for a continuous period of not less than twelve 3 months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a 4 plaintiff shall be determined to be under a disability only if any impairments are of 5 such severity that a plaintiff is not only unable to do previous work but cannot, 6 considering plaintiff s age, education and work experiences, engage in any other 7 substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 8 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and 9 vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 10 The Commissioner has established a five-step sequential evaluation process 11 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step 12 one determines if the person is engaged in substantial gainful activities. If so, 13 benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the 14 decision maker proceeds to step two, which determines whether plaintiff has a 15 medially severe impairment or combination of impairments. 20 C.F.R. §§ 16 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 17 If plaintiff does not have a severe impairment or combination of impairments, 18 the disability claim is denied. If the impairment is severe, the evaluation proceeds to 19 the third step, which compares plaintiff s impairment with a number of listed 20 4 DECISION AND ORDER ORTEGA v COLVIN 13-CV-03078-VEB 1 impairments acknowledged by the Commissioner to be so severe as to preclude 2 substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); 20 3 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or equals one of the listed 4 impairments, plaintiff is conclusively presumed to be disabled. If the impairment is 5 not one conclusively presumed to be disabling, the evaluation proceeds to the fourth 6 step, which determines whether the impairment prevents plaintiff from performing 7 work which was performed in the past. If a plaintiff is able to perform previous work 8 that plaintiff is deemed not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 9 416.920(a)(4)(iv). At this step, plaintiff s residual functional capacity (RFC) is 10 considered. If plaintiff cannot perform past relevant work, the fifth and final step in 11 the process determines whether plaintiff is able to perform other work in the national 12 economy in view of plaintiff s residual functional capacity, age, education and past 13 work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Bowen v. 14 Yuckert, 482 U.S. 137 (1987). 15 The initial burden of proof rests upon plaintiff to establish a prima facie case 16 of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 17 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden is 18 met once plaintiff establishes that a mental or physical impairment prevents the 19 performance of previous work. The burden then shifts, at step five, to the 20 5 DECISION AND ORDER ORTEGA v COLVIN 13-CV-03078-VEB 1 Commissioner to show that (1) plaintiff can perform other substantial gainful 2 activity and (2) a significant number of jobs exist in the national economy that 3 plaintiff can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 4 B. Standard of Review 5 Congress has provided a limited scope of judicial review of a Commissioner s 6 decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner s decision, 7 made through an ALJ, when the determination is not based on legal error and is 8 supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 9 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). The [Commissioner s] 10 determination that a plaintiff is not disabled will be upheld if the findings of fact are 11 supported by substantial evidence. Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 12 1983)(citing 42 U.S.C. § 405(g)). Substantial evidence is more than a mere scintilla, 13 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n 10 (9th Cir. 1975), but less than a 14 preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-02 (9th Cir. 1989). 15 Substantial evidence means such evidence as a reasonable mind might accept as 16 adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 17 (1971)(citations omitted). [S]uch inferences and conclusions as the [Commissioner] 18 may reasonably draw from the evidence will also be upheld. Mark v. Celebreeze, 19 348 F.2d 289, 293 (9th Cir. 1965). On review, the Court considers the record as a 20 6 DECISION AND ORDER ORTEGA v COLVIN 13-CV-03078-VEB 1 whole, not just the evidence supporting the decision of the Commissioner. Weetman 2 v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989)(quoting Kornock v. Harris, 648 F.2d 525, 3 526 (9th Cir. 1980)). 4 It is the role of the Commissioner, not this Court, to resolve conflicts in 5 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational 6 interpretation, the Court may not substitute its judgment for that of the 7 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th 8 Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be 9 set aside if the proper legal standards were not applied in weighing the evidence and 10 making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 11 432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the 12 administrative findings, or if there is conflicting evidence that will support a finding 13 of either disability or nondisability, the finding of the Commissioner is conclusive. 14 Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 15 C. Commissioner s Decision 16 The ALJ found that Plaintiff had not engaged in substantial gainful activity 17 since July 29, 2009, the application date. (T at 23). The ALJ determined that 18 Plaintiff s thoracic and lumbar degenerative disc disease; polyarthralgias, myofascial 19 pain, AC joint degenerative joint disease, lumbalgia/sacroiliac dysfunction, 20 7 DECISION AND ORDER ORTEGA v COLVIN 13-CV-03078-VEB 1 obstructive sleep apnea, and left knee torn meniscus were severe impairments 2 under the Act. (Tr. 23-24). 3 However, the ALJ concluded that Plaintiff did not have an impairment or 4 combination of impairments that met or medically equaled one of the impairments 5 set forth in the Listings. (T at 24-25). The ALJ determined that Plaintiff retained the 6 residual functional capacity ( RFC ) to perform light work as defined in 20 CFR § 7 416.967 (b), except that he could never climb ladders, ropes or scaffolds; 8 occasionally climb ramps or stairs, balance, stoop, crouch, kneel, or crawl; 9 occasionally reach overhead with his right, upper extremity; and must avoid 10 concentrated exposure to extreme cold, excessive vibration, unprotected heights, and 11 moving machinery; and cannot drive commercially. (T at 25-29). 12 The ALJ found that Plaintiff could not perform his past relevant work as a 13 window installer, material handler, or construction laborer. (T at 29). However, 14 considering Plaintiff s age (52 years old on the application date), education 15 (limited), work experience (unskilled), and RFC, the ALJ determined that there were 16 jobs that exist in significant numbers in the national economy that Plaintiff can 17 perform. (T at 29-30). As such, the ALJ concluded that Plaintiff had not been 18 disabled, as defined under the Act, from July 29, 2009 (the application date), 19 through November 3, 2011 (the date of the ALJ s decision) and was therefore not 20 8 DECISION AND ORDER ORTEGA v COLVIN 13-CV-03078-VEB 1 entitled to benefits. (Tr. 30-31). As noted above, the ALJ s decision became the 2 Commissioner s final decision on May 31, 2013, when the Appeals Council denied 3 Plaintiff s request for review. (Tr. 1-8). 4 D. Plaintiff s Arguments 5 Plaintiff contends that the Commissioner s decision should be reversed. He 6 offers three (3) main arguments in support of this position. First, Plaintiff challenges 7 the ALJ s assessment of the medical evidence and, in particular, opinions provided 8 by treating medical providers. Second, Plaintiff contends that the ALJ improperly 9 discounted his credibility. Third, Plaintiff argues that the ALJ s step five analysis 10 was flawed. This Court will address both arguments in turn. 11 1. Assessment of Medical Evidence 12 In disability proceedings, a treating physician s opinion carries more weight 13 than an examining physician s opinion, and an examining physician s opinion is 14 given more weight than that of a non-examining physician. Benecke v. Barnhart, 15 379 F.3d 587, 592 (9th Cir. 2004); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 16 1995). If the treating or examining physician s opinions are not contradicted, they 17 can be rejected only with clear and convincing reasons. Lester, 81 F.3d at 830. If 18 contradicted, the opinion can only be rejected for specific and legitimate reasons 19 20 9 DECISION AND ORDER ORTEGA v COLVIN 13-CV-03078-VEB 1 that are supported by substantial evidence in the record. Andrews v. Shalala, 53 F.3d 2 1035, 1043 (9th Cir. 1995). 3 In June of 2010, Dr. Adam Hoverman, a treating physician, completed a 4 medical report, in which he diagnosed Plaintiff with complex regional pain 5 syndrome, back pain with radiculopathy, and polyarthralgas (joint pain). (T at 330). 6 Dr. Hoverman noted that Plaintiff said he needed to lie down for at least 20 minutes 7 at least once a day to address episodes of back pain. (T at 330). He opined that 8 working on a regular and continuous basis would probably cause Plaintiff s 9 condition to deteriorate. (T at 331). Dr. Hoverman concluded that Plaintiff would 10 likely miss 4 or more days of work per month. (T at 331). 11 In November of 2010, Dr. Phillip Mendoza, another one of Plaintiff s treating 12 physicians, completed a functional assessment checklist, wherein he opined that 13 Plaintiff was limited to standing for 2 hours in an 8-hour work day, sitting for 2 14 hours in an 8-hour work day, lifting 10 pounds occasionally and 5 pounds 15 frequently. (T at 520). Dr. Mendoza concluded that Plaintiff would need to change 16 positions every 10 -15 minutes. (T at 521). 17 In May of 2011, Michelle Gaul, a treating nurse practitioner, diagnosed 18 lumbar issues, joint dysfunction, and a tear of the medial meniscus. (T at 749). She 19 opined that Plaintiff s pain would be aggravated by regular and continuous work. (T 20 10 DECISION AND ORDER ORTEGA v COLVIN 13-CV-03078-VEB 1 at 750). Ms. Gaul concluded that Plaintiff would be likely to miss 4 or more days 2 per month of work and opined that he was severely limited with regard to exertional 3 abilities. (T at 750). 4 The ALJ afforded little weight to these assessments. (T at 27-29). The ALJ 5 found that the treating providers opinions were conclusory and contradicted by 6 other evidence in the record (i.e. MRI findings, clinical notes, State Agency review 7 physician assessments, and Plaintiff s activities of daily living). This Court finds 8 that the ALJ s decision was consistent with applicable law and supported by 9 substantial evidence. 10 The ALJ reasonably relied upon the opinions of State Agency review 11 physicians. See Henderson v. Astrue, 634 F. Supp. 2d 1182, 1190 (E.D.W.A. 12 2009)( The opinion of a non-examining physician may be accepted as substantial 13 evidence if it is supported by other evidence in the record and is consistent with 14 it. )(citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995)). In particular, 15 the ALJ gave significant weight to a physical residual functional capacity 16 assessment completed by Dr. Charles Wolfe and affirmed by Dr. Howard Platter. (T 17 at 29). Dr. Wolfe concluded that Plaintiff could occasionally lift/carry 20 pounds, 18 frequently lift/carry 10 pounds, stand/walk for about 6 hours in an 8-hour workday, 19 and sit for about 6 hours in an 8-hour workday. (T at 311). Dr. Platter affirmed Dr. 20 11 DECISION AND ORDER ORTEGA v COLVIN 13-CV-03078-VEB 1 Wolfe s findings, opined that Plaintiff could perform light work, and concluded that 2 Plaintiff was likely able to do more. (T at 325). 3 Plaintiff points out (correctly) that the opinion of a non-examining physician 4 cannot, without more, constitute substantial evidence sufficient to justify the 5 rejection of a treating physician s opinion. See Lester v. Chater, 81 F.3d 821, 831 6 (9th Cir. 1995). However, such an opinion, combined with laboratory test results, 7 conflicting medical record evidence, and contrary testimony from the claimant, does 8 constitute substantial evidence sufficient to sustain the ALJ s decision to discount 9 the treating physician s opinion. See Magallanes v. Bowen, 881 F.2d 747, 751-55 10 (9th Cir. 1989); Andrews, 53 F.3d at 1043; Roberts v. Shalala, 66 F.3d 179 (9th Cir. 11 1995). 12 Here, the treating providers opinions were conclusory and not supported by 13 references to clinical findings or the medical record. The ALJ is not obliged to 14 accept a treating source opinion that is brief, conclusory and inadequately 15 supported by clinical findings. Lingenfelter v. Astrue, 504 F.3d 1028, 1044-45 (9th 16 Cir. 2007) (citing Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002)). For 17 example, Dr. Hoverman cited an MRI as support for his assessment of disabling 18 limitations. (T at 330). However, the MRI showed some mild changes, but nothing 19 that overtly suggest[ed] serious problems . . . . (T at 444). 20 12 DECISION AND ORDER ORTEGA v COLVIN 13-CV-03078-VEB 1 Given the lack of support in the medical records, it appears the treating 2 providers based their opinions largely on Plaintiff s subjective complaints, which the 3 ALJ reasonably found to be less than credible. See Bray v. Comm r of Soc. Sec., 554 4 F.3d 1219, 1228 (9th Cir. 2009)(finding that ALJ acted within discretion by 5 discounting a physician s opinion predicated on subjective complaints found to be 6 less than credible). Dr. Mendoza indicated that his assessment was not based on a 7 review of medical records or physical evaluation. (T at 521). Dr. Hoverman also 8 based his findings, in part, on the fact that Plaintiff needed ambulatory assistance. 9 (T at 330). However, other treating providers questioned whether Plaintiff actually 10 needed a wheelchair and Plaintiff was observed to ambulate without much difficulty 11 when he did not know he was being observed. (T at 841, 870). 12 In addition, there were numerous reports from other treating providers of 13 suspected malingering, lack of effort during testing, and symptom exaggeration, 14 which provides a further justification for the ALJ s decision to discount treating 15 provider opinions based primarily upon Plaintiff s subjective complaints. In July of 16 2009, Cheryl Bourgault, a treating physician s assistant, performed strength testing 17 of the lower extremities, but did not feel Plaintiff was putting in his full effort. (T 18 at 260). In March of 2011, Dr. Andrea Young, an examining physician, noted that 19 Plaintiff s strength was limited due to effort. (T at 370). In June of 2011, Dr. 20 13 DECISION AND ORDER ORTEGA v COLVIN 13-CV-03078-VEB 1 Daniel Kwon, another treating physician, described Plaintiff as presenting with 2 very exaggerated symptomatology. (T at 785). 3 Bregante, a treating physician s assistant, reported that Plaintiff had episodes of 4 what look like exaggerated muscle spasms . . . . (T at 841). During the same 5 month, Dr. April Briggs, yet another treating physician, questioned whether Plaintiff 6 was malingering in an effort to obtain disability benefits. (T at 845). In September 7 of 2011, Plaintiff arrived for a visit with Ms. Bregante in a wheelchair, but was 8 observed (without his knowledge) leaving the visit ambulating and pushing his 9 wheelchair without much difficulty. (T at 870). Ms. Bregante found Plaintiff s 10 presentation [h]ighly suspicious for malingering with affected spasms that were 11 not an organic occurrence. (T at 870). In July of 2011, Nicholas 12 Plaintiff s daily activities also contradicted the findings of disabling 13 limitations. Plaintiff claimed he could barely walk (T at 56), but was reported to 14 be performing household chores, including frequent wood chopping and lawn 15 mowing. (T at 295-96, 580). Plaintiff indicated that he could barely drive, which 16 was contradicted by evidence that he was the primary source of his transportation for 17 his wife (who is visually impaired). (T at 369. 371). 18 It is the role of the Commissioner, not this Court, to resolve conflicts in 19 evidence. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989); Richardson, 402 20 14 DECISION AND ORDER ORTEGA v COLVIN 13-CV-03078-VEB 1 U.S. at 400. If the evidence supports more than one rational interpretation, this 2 Court may not substitute its judgment for that of the Commissioner. Allen v. 3 Heckler, 749 F.2d 577, 579 (9th 1984). If there is substantial evidence to support the 4 administrative findings, or if there is conflicting evidence that will support a finding 5 of either disability or nondisability, the Commissioner s finding is conclusive. 6 Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). Here, the ALJ s finding 7 was supported by substantial evidence and should be sustained. See Tackett v. Apfel, 8 180 F.3d 1094, 1098 (9th Cir. 1999)(holding that if evidence reasonably supports the 9 Commissioner s decision, the reviewing court must uphold the decision and may not 10 substitute its own judgment). 11 2. 12 A claimant s subjective complaints concerning his or her limitations are an 13 important part of a disability claim. Batson v. Comm r of Soc. Sec. Admin., 359 F.3d 14 1190, 1195 (9th Cir. 2004)(citation omitted). The ALJ s findings with regard to the 15 claimant s credibility must be supported by specific cogent reasons. Rashad v. 16 Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of 17 malingering, the ALJ s reasons for rejecting the claimant s testimony must be clear 18 and convincing. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). General 19 findings are insufficient: rather the ALJ must identify what testimony is not credible 20 15 Credibility Analysis DECISION AND ORDER ORTEGA v COLVIN 13-CV-03078-VEB 1 and what evidence undermines the claimant s complaints. Lester, 81 F.3d at 834; 2 Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 3 However, subjective symptomatology by itself cannot be the basis for a 4 finding of disability. A claimant must present medical evidence or findings that the 5 existence of an underlying condition could reasonably be expected to produce the 6 symptomatology alleged. See 42 U.S.C. §§423(d)(5)(A), 1382c (a)(3)(A); 20 C.F.R. 7 § 404.1529(b), 416.929; SSR 96-7p. 8 In this case, the ALJ concluded that Plaintiff s impairments could reasonably 9 be expected to cause some of the alleged symptoms, but found that his statements 10 concerning the intensity, persistence, and limiting effects of those symptoms were 11 not credible to the extent alleged. (T at 25). The ALJ s assessment was consistent 12 with applicable law and supported by substantial evidence. 13 As discussed above, a number of treating providers questioned whether 14 Plaintiff was malingering, failed to give maximum effort during testing, and/or was 15 exaggerating his symptoms. (T at 27, 260, 370, 417, 831, 841, 845, 870). Failure to 16 give maximum or consistent effort during medical evaluations is compelling 17 evidence that the claimant is not credible. Thomas v. Barnhart, 278 F.3d 947, 958-59 18 (9th Cir. 2002). 19 20 16 DECISION AND ORDER ORTEGA v COLVIN 13-CV-03078-VEB 1 Dr. Hoverman noted that Plaintiff had not worked since getting married in 2 2001, which pre-dated the onset of his current symptoms (and the alleged onset date) 3 by several years. (T at 331). The fact that a claimant stopped working for reasons 4 other than the alleged impairments is one of a number of valid reasons for the ALJ to 5 discount the claimant s credibility. Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 6 2001). 7 In addition, the objective medical findings provide a further justification for 8 the ALJ s decision to discount Plaintiff s credibility. 9 physician, noted that the results of Plaintiff s MRI and EMG studies were normal Dr. Kwon, a treating 10 and mild and did not overtly suggest[] serious problems. (T at 444). 11 examination, Plaintiff was observed to walk very well, with slightly decreased 12 range of motion in his back and mild tenderness in the lumbar region. (T at 56, 13 260). Although lack of supporting medical evidence cannot form the sole basis for 14 discounting pain testimony, it is a factor the ALJ may consider when analyzing 15 credibility. Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). Subjective 16 complaints contradicted by medical records and by daily activities are properly 17 considered. Carmickle v. Comm r of Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 18 2008); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). 19 20 17 DECISION AND ORDER ORTEGA v COLVIN 13-CV-03078-VEB On 1 Where, as here, substantial evidence supports the ALJ s credibility 2 determination, this Court may not overrule the Commissioner's interpretation even if 3 the evidence is susceptible to more than one rational interpretation. Magallanes, 4 881 F.2d 747, 750 (9th Cir. 1989); see also Morgan v. Commissioner, 169 F.3d 595, 5 599 (9th Cir. 1999)( [Q]uestions of credibility and resolutions of conflicts in the 6 testimony are functions solely of the [Commissioner]. ). 7 3. Step Five Analysis 8 At step five of the sequential evaluation, the burden is on the Commissioner to 9 show that (1) the claimant can perform other substantial gainful activity and (2) a 10 significant number of jobs exist in the national economy which the claimant can 11 perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). If a claimant cannot 12 return to his previous job, the Commissioner must identify specific jobs existing in 13 substantial numbers in the national economy that the claimant can perform. See 14 Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir.1995). 15 The Commissioner may carry this burden by eliciting the testimony of a 16 vocational expert in response to a hypothetical that sets out all the limitations and 17 restrictions of the claimant. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.1995). 18 The ALJ's depiction of the claimant's disability must be accurate, detailed, and 19 supported by the medical record. Gamer v. Secretary of Health and Human Servs., 20 18 DECISION AND ORDER ORTEGA v COLVIN 13-CV-03078-VEB 1 815 F.2d 1275, 1279 (9th Cir.1987). If the assumptions in the hypothetical are not 2 supported by the record, the opinion of the vocational expert that claimant has a 3 residual working capacity has no evidentiary value. Gallant v. Heckler, 753 F.2d 4 1450, 1456 (9th Cir. 1984). 5 In this case, Thomas Polsin, a vocational expert, testified at the administrative 6 hearing. During the hearing, the ALJ asked Mr. Polsin to assume a hypothetical 7 claimant with the limitations set forth in his RFC determination. (T at 64). The 8 vocational expert opined that Plaintiff could perform jobs that exist in significant 9 numbers in the national economy and identified three such jobs, small parts 10 assembler, mailing clerk, and storage rental clerk. (T at 65). The vocational expert 11 testified that these positions would not be precluded even if Plaintiff needed to use a 12 cane whenever standing or ambulating. (T at 66-67). 13 Plaintiff argues that the ALJ s hypothetical was flawed because it did not 14 incorporate limitations identified by Dr. Hoverman, Dr. Mendoza, and Ms. Gaul (i.e. 15 that finding Plaintiff would likely miss 4 days of work per month and the opinion 16 that he could not sustain employment on a full-time basis). However, the ALJ was 17 not obliged to accept as true limitations alleged by Plaintiff and was within his 18 discretion to decline to include such limitations in the vocational expert s 19 hypothetical if he concluded that they were not supported by sufficient evidence. See 20 19 DECISION AND ORDER ORTEGA v COLVIN 13-CV-03078-VEB 1 Martinez v. Heckler, 807 F.2d 771 (9th Cir. 1986); see also Bayliss v. Barnhart, 427 2 F.3d 1211, 1217 (9th Cir. 2005). For the reasons outlined above, the ALJ s RFC 3 determination was supported by substantial evidence. Thus, the step five analysis, 4 which included vocational expert testimony incorporating the RFC determination, 5 was legally sufficient and must be sustained. 6 7 IV. CONCLUSION 8 After carefully reviewing the administrative record, this Court finds 9 substantial evidence supports the Commissioner s decision, including the objective 10 medical evidence and supported medical opinions. It is clear that the ALJ thoroughly 11 examined the record, afforded appropriate weight to the medical evidence, including 12 the assessments of the examining medical providers and the non-examining 13 consultants, and afforded the subjective claims of symptoms and limitations an 14 appropriate weight when rendering a decision that Plaintiff is not disabled. This 15 Court finds no reversible error and because substantial evidence supports the 16 Commissioner s decision, the Commissioner is GRANTED summary judgment and 17 that Plaintiff s motion for judgment summary judgment is DENIED. 18 19 20 20 DECISION AND ORDER ORTEGA v COLVIN 13-CV-03078-VEB V. ORDERS 1 2 IT IS THEREFORE ORDERED that: 3 Plaintiff s motion for summary judgment, Docket No. 21, is DENIED. 4 The Commissioner s motion for summary judgment, Docket No. 22, is 5 6 7 8 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. DATED this 27th day of May, 2014. 9 10 11 /s/Victor E. Bianchini VICTOR E. BIANCHINI UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 DECISION AND ORDER ORTEGA v COLVIN 13-CV-03078-VEB

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