Rhimer v. Commissioner of Social Security, No. 2:2016cv00227 - Document 22 (E.D. Wash. 2017)

Court Description: ORDER GRANTING ECF No. 20 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; denying ECF No. 15 Plaintiff's Motion for Summary Judgment. FILE CLOSED. Signed by Magistrate Judge John T. Rodgers. (TR, Case Administrator)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 10 BRUCE JOHN RHIMER, No. 1:16-CV-0227-JTR Plaintiff, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 12 13 14 15 v. COMMISSIONER OF SOCIAL SECURITY, Defendant. 16 17 BEFORE THE COURT are cross-motions for summary judgment. ECF 18 No. 15, 20. Attorney Dana Chris Madsen represents Bruce John Rhimer 19 (Plaintiff); Special Assistant United States Attorney Richard M. Rodriguez 20 represents the Commissioner of Social Security (Defendant). The parties have 21 consented to proceed before a magistrate judge. ECF No. 6. After reviewing the 22 administrative record and briefs filed by the parties, the Court GRANTS 23 Defendant’s Motion for Summary Judgment and DENIES Plaintiff’s Motion for 24 Summary Judgment. 25 JURISDICTION 26 On June 18, 2012, Plaintiff protectively filed applications for disability 27 insurance benefits and social security disability benefits, alleging disability since 28 October 17, 2003, due to bicycle injury; neck, back and foot problems; mental ORDER GRANTING DEFENDANT’S MOTION . . . - 1 1 health; and left hand injury. Tr. 177, 184, 221. Plaintiff’s applications were 2 denied initially and upon reconsideration. 3 Administrative Law Judge (ALJ) Caroline Siderius held a hearing on 4 November 13, 2014, Tr. 37-72, and issued an unfavorable decision on December 5 17, 2014, Tr. 19-32. The Appeals Council denied review on April 29, 2016. Tr. 1- 6 6. The ALJ’s December 2014 decision thus became the final decision of the 7 Commissioner, which is appealable to the district court pursuant to 42 U.S.C. § 8 405(g). Plaintiff filed this action for judicial review on June 24, 2016. ECF No. 1. 9 STATEMENT OF FACTS 10 The facts of the case are set forth in the administrative hearing transcript, the 11 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 12 here. 13 Plaintiff was born on January 22, 1963, and was 40 years old on the alleged 14 onset date, October 17, 2003. Tr. 75. He completed high school and two years of 15 college. Tr. 222. Plaintiff’s disability report indicates he stopped working on 16 December 31, 2008, because he “could not stay focused and on task, plus the 17 economy caused lay offs.” Tr. 221. Plaintiff testified he performed some 18 construction type work through 2009, was unemployed from 2009 until a bicycle 19 accident in 2012,1 and has performed no work since the 2012 accident. Tr. 51-52. 20 Plaintiff indicated he suffers from back, shoulder and neck pain as a result of 21 the 2012 bicycle accident. Tr. 58-61. He also testified he does not like to leave his 22 house very often because he is now fearful of intersections. Tr. 57. 23 24 1 Plaintiff was involved in an auto versus bicycle accident in March 2012. 25 Plaintiff hit his head on the windshield of the vehicle, was launched into the air, 26 and landed on his head. Tr. 327. He sustained multiple injuries as a result of the 27 accident, including closed head trauma, right frontal scalp laceration, left temporal 28 hemorrhagic contusion, and a cervical spine fracture at C7. Tr. 327. ORDER GRANTING DEFENDANT’S MOTION . . . - 2 1 Plaintiff stated he additionally fell down some stairs in March of 2014 and 2 broke his right hip. Tr. 62. He indicated the hip injury made it painful to walk 3 over two blocks or climb more than two flights of stairs. Tr. 62. He stated he 4 could stand for only an hour, sit for an hour, and lift a maximum of 10 pounds. Tr. 5 62-63. 6 When asked about depression and anxiety, Plaintiff stated he would like to 7 say he did not have depression, but he does. Tr. 66. He did not elaborate other 8 than to indicate there were a lot of things related to the injury caused by the bicycle 9 accident, including no longer being actively involved with sports or riding his 10 bicycle. Tr. 66. He did not mention anxiety or discuss any symptoms of 11 depression or anxiety. Tr. 66. 12 Plaintiff testified he did not feel he was able to work because he would not 13 be able to get up on time, be on time at the job location, or remember job 14 instructions. Tr. 55. He further stated he would be slow to complete job tasks. Tr. 15 56, 65. 16 17 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 18 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 19 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 20 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 21 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 22 only if it is not supported by substantial evidence or if it is based on legal error. 23 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 24 defined as being more than a mere scintilla, but less than a preponderance. Id. at 25 1098. Put another way, substantial evidence is such relevant evidence as a 26 reasonable mind might accept as adequate to support a conclusion. Richardson v. 27 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 28 rational interpretation, the Court may not substitute its judgment for that of the ORDER GRANTING DEFENDANT’S MOTION . . . - 3 1 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 2 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 3 administrative findings, or if conflicting evidence supports a finding of either 4 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 5 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 6 supported by substantial evidence will be set aside if the proper legal standards 7 were not applied in weighing the evidence and making the decision. Brawner v. 8 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 9 SEQUENTIAL EVALUATION PROCESS 10 The Commissioner has established a five-step sequential evaluation process 11 for determining whether a person is disabled. 20 C.F.R. § 416.920(a); see Bowen 12 v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the burden of 13 proof rests upon the claimant to establish a prima facie case of entitlement to 14 disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is met once a 15 claimant establishes that physical or mental impairments prevent him from 16 engaging in his previous occupation. 20 C.F.R. § 416.920(a)(4). If a claimant 17 cannot do his past relevant work, the ALJ proceeds to step five, and the burden 18 shifts to the Commissioner to show that (1) the claimant can make an adjustment to 19 other work; and (2) specific jobs exist in the national economy which claimant can 20 perform. Batson v. Commissioner of Social Sec. Admin., 359 F.3d 1190, 1193- 21 1194 (2004). If a claimant cannot make an adjustment to other work in the 22 national economy, a finding of “disabled” is made. 20 C.F.R. § 416.920(a)(4)(v). 23 24 25 26 ADMINISTRATIVE DECISION On December 17, 2014, the ALJ issued a decision finding Plaintiff was not disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful 27 activity since the alleged onset date, October 17, 2003. Tr. 21. At step two, the 28 ALJ determined Plaintiff had the following severe impairments: cognitive disorder ORDER GRANTING DEFENDANT’S MOTION . . . - 4 1 due to head trauma, cervical spine fracture at C7, and right acetabular fracture. Tr. 2 22. At step three, the ALJ found Plaintiff did not have an impairment or 3 combination of impairments that meets or medically equals the severity of one of 4 the listed impairments. Tr. 22. 5 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and 6 determined he could perform light exertion level work with the following 7 limitations: he is able to lift 20 pounds occasionally and 10 pounds frequently, and 8 he is able to push and pull with the upper extremities up to these weight limits; he 9 needs to avoid overhead reaching bilaterally; he is able to sit for six hours and 10 stand/walk for six hours in an eight hour workday; he needs to be able to change 11 positions once per hour; he is not able to climb ladders, ropes, or scaffolds but can 12 occasionally climb stairs and ramps; he needs to avoid concentrated exposure to 13 vibrations, work at unprotected heights, and loud noises; he can perform simple 14 and repetitive well-learned tasks up to three steps; he can have ordinary production 15 requirements; and he can have occasional brief contact with coworkers and the 16 general public. Tr. 23. 17 At step four, the ALJ determined Plaintiff could not perform his past 18 relevant work as a general laborer and painter helper. Tr. 30. However, at step 19 five, the ALJ determined that based on the testimony of the vocational expert, and 20 considering Plaintiff’s age, education, work experience and RFC, Plaintiff could 21 perform other jobs present in significant numbers in the national economy, 22 including the jobs of office cleaner I and mail clerk. Tr. 31-32. The ALJ thus 23 concluded Plaintiff was not under a disability within the meaning of the Social 24 Security Act at any time from October 17, 2003, the alleged onset date, through the 25 date of the ALJ’s decision, December 17, 2014. Tr. 32 26 27 28 ISSUES The question presented is whether substantial evidence supports the ALJ’s decision denying benefits and, if so, whether that decision is based on proper legal ORDER GRANTING DEFENDANT’S MOTION . . . - 5 1 standards. Plaintiff contends the ALJ erred in this case by (1) failing to give 2 appropriate weight to the examining opinion of Frank Rosekrans, Ph.D.; (2) failing 3 to find Plaintiff’s anxiety and depression were severe impairments at step two of 4 the sequential evaluation process; (3) relying on vocational expert testimony that 5 was based on an incomplete hypothetical; and (4) finding Plaintiff was limited to 6 light exertion level work, not sedentary. ECF No. 15 at 10-17. 7 8 DISCUSSION A. Plaintiff’s Symptom Testimony While Plaintiff has not challenged the ALJ’s finding that Plaintiff was not 9 10 entirely credible, Tr. 24, the Court finds the ALJ’s adverse credibility 11 determination significant in this case. 12 The ALJ indicated the following reasons for finding Plaintiff not fully 13 credible: Plaintiff’s treatment records are sparse with no treatment for almost two 14 years after the alleged onset date and significant gaps in treatment thereafter, and it 15 appeared Plaintiff stopped treatment in 2012 after he could not convince his doctor 16 to say he was disabled, contradicting his assertion he was not seeking treatment 17 due to a lack of funds (Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) 18 (in assessing a claimant’s credibility, an ALJ properly relies upon unexplained or 19 inadequately explained failure to seek treatment or to follow a prescribed course of 20 treatment)); Plaintiff has not been compliant with following recommended 21 treatment which could improve his level of functioning (Fair v. Bowen, 885 F.2d 22 597, 603 (9th Cir. 1989) (noncompliance with medical care cast doubt on a 23 claimant’s subjective complaints)); Plaintiff has not sought any type of treatment 24 for his alleged anxiety or depression (Tommasetti, 533 F.3d at 1039); and 25 Plaintiff’s activities of daily living have been greater than he has alleged in 26 connection with his application for benefits, including evidence indicating Plaintiff 27 engaged in work-like activity during the relevant period (20 C.F.R. §§ 404.1571, 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 6 1 416.971 (employment “during any period” of claimed disability may be probative 2 of a claimant’s ability to work)). Tr. 24-29. 3 The rationale provided by the ALJ is fully supported by the record, and the 4 ALJ’s determination that Plaintiff’s statements were not entirely credible is 5 uncontested by Plaintiff. See Paladin Assocs., Inc. v. Mont. Power Co., 328 F.3d 6 1145, 1164 (9th Cir. 2003) (issues not specifically and distinctly contested in a 7 party’s opening brief are considered waived). Since Plaintiff was properly found 8 by the ALJ to be not entirely credible, the ALJ appropriately accorded little weight 9 to Plaintiff’s description of limitations and subjective complaints. 10 B. 11 Plaintiff asserts the ALJ erred by failing to accord proper weight to the 12 Frank Rosekrans, Ph.D. opinions of Dr. Rosekrans. ECF No. 15 at 12. 13 If the opinion of an examining medical professional is not contradicted, it 14 can only be rejected with clear and convincing reasons. Lester, 81 F.3d at 830. If 15 contradicted, the opinion can only be rejected for “specific” and “legitimate” 16 reasons that are supported by substantial evidence in the record. Andrews, 53 F.3d 17 at 1043. Historically, the courts have recognized conflicting medical evidence, the 18 absence of regular medical treatment during the alleged period of disability, and 19 the lack of medical support for doctors’ reports based substantially on a claimant’s 20 subjective complaints of pain as specific, legitimate reasons for disregarding an 21 examining physician’s opinion. Flaten v. Secretary of Health and Human Servs., 22 44 F.3d 1453, 1463-1464 (9th Cir. 1995); Fair, 885 F.2d at 604. 23 Here, the examining opinion of Dr. Rosekrans was contradicted by other 24 medical sources, including examiner Robert L. Quackenbush, Ph.D., the medical 25 expert, and a state agency reviewing medical professional, see infra; therefore, the 26 ALJ needed to only provide specific and legitimate reasons for rejecting Dr. 27 Rosekrans’ report. 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 7 1 On May 5, 2014, Dr. Rosekrans completed a Psychological/Psychiatric 2 Evaluation form. Tr. 347-351. Dr. Rosekrans diagnosed mild neurocognitive 3 disorder due to traumatic brain injury and an adjustment disorder with mixed 4 anxiety and depressed mood. Tr. 348. Dr. Rosekrans indicated there was nothing 5 unusual or noteworthy about Plaintiff’s appearance, Plaintiff’s speech was normal, 6 Plaintiff gave appropriate answers and did not digress excessively, Plaintiff was 7 pleasant and cooperative, and Plaintiff’s affect was normal. Tr. 350. Dr. 8 Rosekrans nevertheless opined that Plaintiff was markedly impaired in his ability 9 to perform activities within a schedule, maintain regular attendance and be 10 punctual within customary tolerances without special supervision; communicate 11 and perform effectively in a work setting; complete a normal work day and work 12 week without interruptions from psychologically based symptoms; and maintain 13 appropriate behavior in a work setting. Tr. 349. 14 The ALJ assigned “little weight” to Dr. Rosekrans’ opinion, concluding 15 there was no objective medical evidence to support the marked limitations and the 16 marked limitation findings were not substantiated by Dr. Rosekrans’ narrative 17 report. Tr. 30. 18 With regard to the weight of the evidence of record, Joseph Cools, Ph.D., 19 testified as a medical expert at the November 13, 2014 administrative hearing and 20 was accorded significant weight by the ALJ. Tr. 29, 41-50. Dr. Cools indicated 21 there was no evidence in the narrative portion of Dr. Rosekrans’ report to indicate 22 marked difficulties in completing a normal workday, maintaining regular 23 attendance and being punctual; there was no evidence of behavior issues; and the 24 finding that Plaintiff had marked difficulty in being able to communicate and 25 perform effectively in a work setting was not consistent with Plaintiff’s noted 26 communication skills. Tr. 47-48, 49. 27 28 Dr. Cools opined that Plaintiff could perform simple to semi-complex tasks; would do best in a calm, non-noisy environment; would need repetition to learn ORDER GRANTING DEFENDANT’S MOTION . . . - 8 1 tasks and no strict production requirements; could get along with coworkers and 2 supervisors, but no extended contact with the public; and could maintain a regular 3 work schedule. Tr. 48-50. Consistent with Dr. Cools, State Agency psychological 4 consultant, Renee Eisenhauer, Ph.D., opined that Plaintiff was no greater than 5 moderately limited in any individual category of mental functioning. Tr. 29, 120- 6 122. 7 On January 8, 2013, Dr. Quackenbush, completed a psychological 8 evaluation, which the ALJ accorded “significant weight.” Tr. 30, 327-333. 9 Plaintiff reported no significant medical or physical concerns prior to the March 10 2012 bicycle accident and denied any background of mental health problems or 11 treatment. Tr. 328. Dr. Quackenbush noted Plaintiff presented a few minutes late 12 for his appointment, but had telephoned prior to his arrival indicating his 13 transportation was running late. Id. At the conclusion of the examination, Plaintiff 14 was observed entering a vehicle and driving away despite reporting friends had 15 transported him to the office. Tr. 328. Dr. Quackenbush also observed Plaintiff’s 16 hands were suggestive of recent labor (e.g., grease or soil under the nails, etc.). Id. 17 Dr. Quackenbush indicated that while Plaintiff was clearly distractible and 18 displayed occasional response latencies and word-finding problems, Plaintiff made 19 good eye contact, was appropriately oriented, and exhibited no signs of a formal 20 thought disorder, Plaintiff’s speech was of normal volume, rate and rhythm, and 21 Plaintiff’s stream of thought was logical and based in reality. Tr. 328. 22 Cognitively, Plaintiff appeared to be of average intelligence, his recent and remote 23 memory appeared grossly intact, and he exhibited fair judgment and reasoning. Tr. 24 328-329. It was noted that Plaintiff interacted appropriately and communicated 25 effectively with the examiner throughout the exam. Tr. 329. 26 Dr. Quackenbush opined that Plaintiff functions within the low-average 27 range relative to his peers. Tr. 330. He found mild to moderate cognitive 28 problems, but indicated the extent of Plaintiff’s physical limitation was uncertain ORDER GRANTING DEFENDANT’S MOTION . . . - 9 1 and perhaps exaggerated. Tr. 330. Dr. Quackenbush determined Plaintiff was 2 capable of learning simple to detailed information with adequate repetition and 3 capable of making simple work-related judgements. Tr. 331. 4 As concluded by the ALJ, the objective medical evidence does not support 5 Dr. Rosekrans’ assessed marked limitations. Specifically, there is no objective 6 evidence of Plaintiff’s inability to maintain attendance or appropriate behavior. 7 Although Plaintiff presented a few minutes late for his appointment with Dr. 8 Quackenbush, Plaintiff sensibly called the office prior to his arrival to indicate he 9 was running late. Tr. 328. In terms of Plaintiff’s behavior, the record reflects 10 Plaintiff has consistently interacted appropriately. Tr. 329, 350. With respect to 11 Plaintiff’s ability to communicate, the record reflects some occasional word- 12 finding issues, Tr. 328; however, it is noted that Plaintiff interacted and 13 communicated effectively with examiners, Tr. 329, 350. The ALJ accounted for 14 the noted word-finding problems by restricting Plaintiff to simple and repetitive 15 well-learned tasks. Tr. 30. 16 Furthermore, as noted by the ALJ, the narrative portion of Dr. Rosekrans’ 17 report does not provide a basis for his marked limitation findings. Tr. 30, 347-351; 18 see Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (stating that the ALJ’s 19 rejection of a check-off report that did not contain an explanation of the bases for 20 the conclusions made was permissible). As to Plaintiff’s ability to maintain 21 attendance, there is no indication Plaintiff was late to the appointment with Dr. 22 Rosekrans, nor is there any mention of Plaintiff’s inability to maintain a schedule 23 in the report. With respect to Plaintiff’s behavior, Dr. Rosekrans indicated Plaintiff 24 was pleasant and cooperative, Tr. 350, and did not cite any behavioral issues. 25 Regarding Plaintiff’s ability to communicate, Dr. Rosekrans did not note any 26 observed word finding issues, other than mentioning Plaintiff’s self-report of word- 27 finding difficulties. Tr. 347. To the contrary, Dr. Rosekrans indicated Plaintiff 28 gave appropriate answers and did not digress excessively. Tr. 350. ORDER GRANTING DEFENDANT’S MOTION . . . - 10 1 The marked limitations assessed by Dr. Rosekrans are not supported by the 2 weight of the record evidence which demonstrates Plaintiff is capable of 3 performing simple and repetitive well-learned tasks with ordinary production 4 requirements in a non-noisy environment with only occasional brief contact with 5 coworkers and the general public. Tr. 23, 48-50, 331. The narrative portion of Dr. 6 Rosekrans’ report additionally does not corroborate his marked limitation findings. 7 Based on the foregoing, the Court finds that the ALJ provided specific and 8 legitimate reasons, supported by substantial record evidence, for discounted Dr. 9 Rosekrans’ report. Accordingly, the ALJ did not err by rejecting Dr. Rosekrans’ 10 assessed marked limitations. 11 C. 12 Severe Impairment Plaintiff contends the ALJ also erred by failing to find Plaintiff’s diagnosed 13 adjustment disorder with mixed anxiety and depressed mood was a severe 14 impairment. ECF No. 15 at 14-15; ECF No. 21 at 5-6. 15 The regulations, 20 C.F.R. §§ 404.1520(c), 416.920(c), provide that an 16 impairment is severe if it significantly limits one’s ability to perform basic work 17 activities. An impairment is considered non-severe if it “does not significantly 18 limit your physical or mental ability to do basic work activities.” 20 C.F.R. §§ 19 404.1521, 416.921. Plaintiff has the burden of proving he has a severe 20 impairment. 20 C.F.R. §§ 423(d)(1)(A), 416.912. In order to meet this burden, 21 Plaintiff must furnish medical and other evidence that shows he is disabled. 20 22 C.F.R. § 416.912(a). In the absence of objective evidence to verify the existence 23 of an impairment, the ALJ must reject the alleged impairment at step two of the 24 sequential evaluation process. S.S.R. 96-4p. 25 In this case, Plaintiff claimed “mental health” as a condition that limited his 26 ability to work on his disability form. Tr. 221. When asked about his mental 27 health at the administrative hearing, Plaintiff testified he would like to say he did 28 not have depression, but he does. Tr. 66. Plaintiff, however, did not elaborate ORDER GRANTING DEFENDANT’S MOTION . . . - 11 1 other than to indicate there were a lot of things related to the injury he sustained as 2 a result of the March 2012 bicycle accident. Id. He did not mention anxiety, and 3 he did not discuss any symptoms related to depression or anxiety. Tr. 66. 4 Although Drs. Quackenbush and Rosekrans each diagnosed an adjustment 5 disorder with mixed anxiety and depressed mood, Tr. 331, 348, the mere existence 6 of an impairment is insufficient proof of a severe impairment. See Matthews v. 7 Shalala, 10 F.3d 678, 680 (9th Cir. 1993); Edlund v. Massanari, 253 F.3d 1152, 8 1159-1160 (9th Cir. 2001) (a claimant must prove an impairment affects his ability 9 to perform basic work activities). Neither doctor discussed functional limitations 10 from the diagnosed adjustment disorder with mixed anxiety and depressed mood. 11 Moreover, Dr. Quackenbush indicated that Plaintiff was pleasant to work with 12 throughout the examination and indicated Plaintiff’s comments regarding anxiety 13 may have been exaggerated, Tr. 331, and Dr. Rosekrans noted Plaintiff’s attitude 14 and behavior as “pleasant and cooperative” and his mood as “positive,” Tr. 350. 15 In any event, Plaintiff has failed to specify any functional limitations from 16 these diagnoses that were not accounted for in the ALJ’s RFC determination. See 17 Lockwood v. Comm’r of Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). 18 Accordingly, the ALJ correctly found at step two of the sequential evaluation 19 process that Plaintiff’s adjustment disorder with mixed anxiety and depressed 20 mood did not result in more than minimal limitation to his ability to perform work 21 activity and, therefore, was not a severe impairment. Tr. 27-28. 22 D. Physical RFC Determination 23 Plaintiff argues that based on his testimony, the ALJ should have determined 24 he was limited to sedentary exertion level work or less, not light exertion level 25 work. ECF No. 15 at 16-17. 26 As discussed in Section A, Plaintiff was properly found by the ALJ to be not 27 entirely credible, and Plaintiff does not contest this credibility determination. See 28 infra. Given the ALJ’s adverse credibility determination, the ALJ appropriately ORDER GRANTING DEFENDANT’S MOTION . . . - 12 1 accorded little weight to Plaintiff’s description of functional limitations and 2 subjective complaints. 3 Plaintiff’s assertion that the Court should rely solely on his discredited 4 testimony to conclude the ALJ erred by finding him capable of light exertion level 5 work is without merit. 6 E. Step Five 7 Plaintiff contends that the ALJ erred by relying on the vocational expert’s 8 testimony in response to a hypothetical not supported by the weight of the record 9 evidence. ECF No. 15 at 15-16. 10 11 As determined above, the weight of the record evidence in this case supports the ALJ’s findings at step 2 and the ultimate RFC determination. 12 The ALJ determined Plaintiff could perform light exertion level work with 13 the following limitations: he is able to lift 20 pounds occasionally and 10 pounds 14 frequently, and he is able to push and pull with the upper extremities up to these 15 weight limits; he needs to avoid overhead reaching bilaterally; he is able to sit for 16 six hours and stand/walk for six hours in an eight hour workday; he needs to be 17 able to change positions once per hour; he is not able to climb ladders, ropes, or 18 scaffolds but can occasionally climb stairs and ramps; he needs to avoid 19 concentrated exposure to vibrations, work at unprotected heights, and loud noises; 20 he can perform simple and repetitive well-learned tasks up to three steps; he can 21 have ordinary production requirements; and he can have occasional brief contact 22 with coworkers and the general public. Tr. 23. 23 At the administrative hearing held on November 13, 2014, the vocational 24 expert testified that with the restrictions assessed by the ALJ, Plaintiff retained the 25 capacity to perform a significant number of jobs existing in the national economy, 26 including the positions of office cleaner one and mail clerk. Tr. 68-69. Since the 27 vocational expert’s testimony was based on a proper RFC determination by the 28 ALJ, Plaintiff’s argument is without merit. ORDER GRANTING DEFENDANT’S MOTION . . . - 13 1 F. New Assertion in Reply Brief 2 Plaintiff additionally identified and argued a new issue in his reply brief: the 3 ALJ failed to consider the effect of Plaintiff’s March 20, 2014 fall which resulted 4 in a fracture of the right acetabulum.2 ECF No. 21 at 1-2. 5 Our circuit has repeatedly admonished that the Court should not consider 6 any claims not actually argued in an appellant’s opening brief. Greenwood v. Fed. 7 Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994). Rather, the Court should 8 “review only issues which are argued specifically and distinctly in a party’s 9 opening brief.” Id.; Paladin Assocs., Inc., 328 F.3d at 1164 (issues not specifically 10 and distinctly contested in a party’s opening brief are considered waived). 11 12 Because Plaintiff failed to provide the foregoing argument in his opening briefing, the Court declines to consider the issue. 13 CONCLUSION 14 Having reviewed the record and the ALJ’s findings, the Court finds the 15 ALJ’s decision is supported by substantial evidence and free of legal error. 16 Accordingly, IT IS ORDERED: 17 18 1. Defendant’s Motion for Summary Judgment, ECF No. 20, is GRANTED. 19 2. 20 /// 21 /// 22 /// 23 Plaintiff’s Motion for Summary Judgment, ECF No. 15, is DENIED. /// 24 25 2 It is significant to note that the ALJ concluded Plaintiff’s right acetabular 26 fracture was a severe impairment at step two of the sequential evaluation process. 27 Tr. 22. It thus appears the right acetabular fracture was properly considered by the 28 ALJ when evaluating Plaintiff’s residual functional capacity in this case. ORDER GRANTING DEFENDANT’S MOTION . . . - 14 1 The District Court Executive is directed to file this Order and provide a copy 2 to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 3 and the file shall be CLOSED. 4 DATED September 26, 2017. 5 6 7 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 15

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