Laurie Lynn Zeidman v. Michael J Astrue, No. 2:2011cv09368 - Document 20 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER by Magistrate Judge Jean P Rosenbluth: (See document for details.) IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment on counsel for both parties. (rla)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 LAURIE LYNN ZEIDMAN, 10 Plaintiff, 11 vs. 12 13 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 14 Defendant. 15 ) Case No. CV 11-9368-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) AFFIRMING THE COMMISSIONER ) ) ) ) ) ) ) 16 17 I. PROCEEDINGS 18 Plaintiff seeks review of the Commissioner s final decision 19 denying her application for Social Security disability insurance 20 benefits ( DIB ) and Supplemental Security Income benefits 21 ( SSI ). The parties consented to the jurisdiction of the 22 undersigned U.S. Magistrate Judge pursuant to 28 U.S.C. § 636(c). 23 This matter is before the Court on the parties Joint 24 Stipulation, filed September 13, 2012, which the Court has taken 25 under submission without oral argument. For the reasons stated 26 below, the Commissioner s decision is affirmed and this action is 27 dismissed. 28 1 1 II. BACKGROUND 2 Plaintiff was born on March 14, 1957. 3 Record ( AR ) 33.) (Administrative She has a high school education. (Id.) 4 Plaintiff worked for approximately 30 years as a credit analyst 5 and customer service representative. (AR 34, 155.) On January 6 16, 2007, Plaintiff injured her shoulder and back after she fell 7 down a flight of stairs at work. (AR 247, 248-49.) Plaintiff 8 was away from work for one week and then returned to work; she 9 continued to work continuously until November 16, 2007, when she 10 was laid off. (AR 34, 154, 249.) She received unemployment 11 benefits from November 2007 until March 2008, at which point, she 12 alleges, her pain worsened and she became unable to work. (AR 13 34.) 14 On September 29, 2008, Plaintiff filed SSI and DIB 15 applications, alleging that she had been unable to work since 16 November 16, 2007, because of lower back pain, right arm and 17 right shoulder pain, and nerve damage. 18 183.)1 (AR 136-38, 139-47, 154, After Plaintiff s applications were denied, she requested 19 a hearing before an Administrative Law Judge ( ALJ ). 20 69.) (AR 63- A hearing was held on January 19, 2010, at which Plaintiff, 21 22 1 In his written decision, the ALJ addressed Plaintiff s DIB 23 application only. (See AR 17.) Plaintiff notes that she also applied for SSI, but she does not allege that the ALJ s apparent 24 failure to consider that application is a basis for reversal. 25 (See J. Stip. at 1.) 26 27 28 Thus, the Court does not address the effects of any such error. See Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006) (issues not raised before the district court are waived). Moreover, because the standards for determining disability for purposes of DIB and SSI benefits are virtually identical, the analysis herein applies equally to both. See Penny v. Sullivan, 2 F.3d 953, 955 n.1 (9th Cir. 1995). 2 1 who was represented by counsel, appeared and testified on her own 2 behalf. (AR 29-52.) Medical Expert Dr. Richard Hutson and 3 Vocational Expert ( VE ) Susan Green also testified. (AR 37-51.) 4 In a written decision issued on February 2, 2010, the ALJ 5 determined that Plaintiff was not disabled. (AR 14-28.) 6 Plaintiff then requested review of the ALJ s decision and 7 submitted additional evidence to the Appeals Council; on 8 September 10, 2011, the Appeals Council incorporated the 9 additional evidence into the record but denied Plaintiff s 10 request for review. (AR 1-5.) This action followed. 11 III. STANDARD OF REVIEW 12 Pursuant to 42 U.S.C. § 405(g), a district court may review 13 the Commissioner s decision to deny benefits. The ALJ s findings 14 and decision should be upheld if they are free from legal error 15 and are supported by substantial evidence based on the record as 16 a whole. § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 17 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 18 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such 19 evidence as a reasonable person might accept as adequate to 20 support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter 21 v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 22 a scintilla but less than a preponderance. It is more than Lingenfelter, 504 23 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 24 882 (9th Cir. 2006)). To determine whether substantial evidence 25 supports a finding, the reviewing court must review the 26 administrative record as a whole, weighing both the evidence that 27 supports and the evidence that detracts from the Commissioner s 28 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 3 1 1996). If the evidence can reasonably support either affirming 2 or reversing, the reviewing court may not substitute its 3 judgment for that of the Commissioner. Id. at 720-21. 4 IV. THE EVALUATION OF DISABILITY 5 People are disabled for purposes of receiving Social 6 Security benefits if they are unable to engage in any substantial 7 gainful activity owing to a physical or mental impairment that is 8 expected to result in death or which has lasted, or is expected 9 to last, for a continuous period of at least 12 months. 42 10 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 11 (9th Cir. 1992). 12 A. 13 The ALJ follows a five-step sequential evaluation process in The Five-Step Evaluation Process 14 assessing whether a claimant is disabled. 20 C.F.R. 15 §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 16 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). In the first 17 step, the Commissioner must determine whether the claimant is 18 currently engaged in substantial gainful activity; if so, the 19 claimant is not disabled and the claim must be denied. 20 §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not 21 engaged in substantial gainful activity, the second step requires 22 the Commissioner to determine whether the claimant has a severe 23 impairment or combination of impairments significantly limiting 24 his ability to do basic work activities; if not, a finding of not 25 disabled is made and the claim must be denied. 26 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a 27 severe impairment or combination of impairments, the third step 28 requires the Commissioner to determine whether the impairment or 4 1 combination of impairments meets or equals an impairment in the 2 Listing of Impairments ( Listing ) set forth at 20 C.F.R., Part 3 404, Subpart P, Appendix 1; if so, disability is conclusively 4 presumed and benefits are awarded. 5 416.920(a)(4)(iii). §§ 404.1520(a)(4)(iii), If the claimant s impairment or combination 6 of impairments does not meet or equal an impairment in the 7 Listing, the fourth step requires the Commissioner to determine 8 whether the claimant has sufficient residual functional capacity 9 ( RFC )2 to perform her past work; if so, the claimant is not 10 disabled and the claim must be denied. 11 416.920(a)(4)(iv). §§ 404.1520(a)(4)(iv), The claimant has the burden of proving that 12 she is unable to perform past relevant work. 13 1257. Drouin, 966 F.2d at If the claimant meets that burden, a prima facie case of 14 disability is established. Id. If that happens or if the 15 claimant has no past relevant work, the Commissioner then bears 16 the burden of establishing that the claimant is not disabled 17 because she can perform other substantial gainful work available 18 in the national economy. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 19 That determination comprises the fifth and final step in the 20 sequential analysis. §§ 404.1520, 416.920; Lester, 81 F.3d at 21 828 n.5; Drouin, 966 F.2d at 1257. 22 B. 23 At step one, the ALJ found that Plaintiff had not engaged in The ALJ s Application of the Five-Step Process 24 any substantial gainful activity since November 16, 2007. 25 19.) (AR At step two, the ALJ concluded that Plaintiff had the 26 27 28 2 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. 20 C.F.R. § 404.1545; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 5 1 severe impairments of degenerative disc disease of the lumbar 2 spine, status post right shoulder rotator cuff tear, and mild 3 degenerative changes of the cervical spine. At step (Id.) 4 three, the ALJ determined that Plaintiff s impairments did not 5 meet or equal any of the impairments in the Listing. (AR 20-21.) 6 At step four, the ALJ found that Plaintiff retained the RFC to 7 perform less than the full range of light work, 3 with the 8 limitations that Plaintiff 9 can lift and carry up to 10 pounds occasionally and 10 frequently; stand and walk up to 6 hours in an 8 hour 11 day; and sit up to 6 hours in an 8 hour day. 12 claimant must also be allowed to alternate between a 13 standing and sitting position for up to 5 minutes every 14 hour; 15 workstation. 16 activities, except that she cannot climb ropes, ladders, 17 and scaffolds. 18 cold, heat, wetness, humidity, and vibration; and she 19 cannot be exposed to heights or hazards. 20 cannot lift above shoulder level using her right upper so long as the claimant does not leave The her She is also limited to occasional postural She must avoid concentrated exposure to Finally, she 21 22 23 24 25 26 27 28 3 Light work is defined as work involving lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. 20 C.F.R. §§ 404.1567(b), 416.967(b). The regulations further specify that [e]ven though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. Id. A person capable of light work is also capable of sedentary work, which involves lifting no more than 10 pounds at a time and occasionally lifting or carrying [small articles] and may involve occasional walking or standing. §§ 404.1567(a)-(b), 416.967(a)-(b). 6 1 extremity. 2 (AR 21.) Based on the VE s testimony, the ALJ concluded that 3 Plaintiff was able to perform her past work as a credit analyst 4 as it is generally performed. (AR 23-24.) In the alternative, 5 the ALJ found that Plaintiff could also perform the job of 6 receptionist. (AR 24.) The ALJ concluded that jobs existed in 7 significant numbers in the national economy that Plaintiff could 8 perform. (Id.) 9 was not disabled. Accordingly, the ALJ determined that Plaintiff (AR 25.) 10 V. DISCUSSION 11 Plaintiff alleges that the ALJ erred in (1) determining her 12 RFC; (2) failing to properly consider her testimony regarding her 13 subjective symptoms; and (3) determining that she can return to 14 her past relevant work or perform other work. (J. Stip at 2.) 15 A. 16 Plaintiff contends that the ALJ erred in determining her RFC The ALJ Did Not Err in Determining Plaintiff s RFC 17 because he did not take into account various medical evidence in 18 the record indicating that she had additional functional 19 impairments. (J. Stip. at 2-7, 14-16.) 20 21 1. Applicable law A district court must uphold an ALJ s RFC assessment when 22 the ALJ has applied the proper legal standard and substantial 23 evidence in the record as a whole supports the decision. 24 v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). Bayliss The ALJ must 25 have considered all of the medical evidence in the record and 26 explain in [his or her] decision the weight given to . . . [the] 27 opinions from treating sources, nontreating sources, and other 28 nonexamining sources. 20 C.F.R. §§ 404.1527(f)(2)(ii), 7 1 416.927(f)(2)(ii). In making an RFC determination, the ALJ may 2 consider those limitations for which there is support in the 3 record, including limitations consistent with a medical 4 source s findings, and need not consider properly rejected 5 evidence or properly rejected subjective complaints. See Batson 6 v. Comm r of the Soc. Sec. Admin., 359 F.3d 1190, 1197 98 (9th 7 Cir. 2004) (finding that substantial evidence supported ALJ s 8 RFC determination that plaintiff can walk about four blocks at a 9 time, stand for one hour, sit for one hour, occasionally lift 10 10 20 pounds, and drive for 15 minutes at a time because 11 findings were consistent with albeit not identical to 12 examining therapist s determination that plaintiff can lift 26 13 pounds occasionally, lift 13 pounds frequently, and complete an 8 14 hour work day given an opportunity to change positions ); 15 Bayliss, 427 F.3d at 1217 (upholding ALJ s RFC determination 16 because the ALJ took into account those limitations for which 17 there was record support that did not depend on the claimant s 18 subjective complaints ); see also Banks v. Barnhart, 434 F. Supp. 19 2d 800, 805 (C.D. Cal. 2006) (when plaintiff argued that ALJ s 20 RFC assessment was not supported by substantial evidence because 21 [i]t was only the ALJ himself, a layperson in medical matters, 22 who opined that [plaintiff] can tolerate all but heavy 23 concentration of respiratory contamination or pollution, 24 district court nonetheless found that physician s overall opinion 25 constituted substantial evidence to support ALJ s RFC 26 determination). 27 An ALJ does not need to adopt any specific medical source s 28 RFC opinion as his or her own. Vertigan v. Halter, 260 F.3d 8 1 1044, 1049 (9th Cir. 2001) ( It is clear that it is the 2 responsibility of the ALJ, not the claimant s physician, to 3 determine residual functional capacity. ); 20 C.F.R. 4 §§ 404.1546(c), 416.946(c) ( [T]he administrative law judge . . . 5 is responsible for assessing your residual functional 6 capacity. ). The ALJ need not accept the opinion of any 7 physician, including a treating physician, if that opinion is 8 brief, conclusory, and inadequately supported by clinical 9 findings. See Batson, 359 F.3d at 1195; Thomas v. Barnhart, 278 10 F.3d 947, 957 (9th Cir. 2002). The Court must consider the ALJ s 11 decision in the context of the entire record as a whole, and if 12 the evidence is susceptible to more than one rational 13 interpretation, the ALJ s decision should be upheld. Ryan v. 14 Comm r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) 15 (internal quotation marks omitted). 16 17 2. Relevant facts The ALJ found that Plaintiff retained the RFC to perform 18 less than the full range of light work, with the limitations 19 that Plaintiff 20 can lift and carry up to 10 pounds occasionally and 21 frequently; stand and walk up to 6 hours in an 8 hour 22 day; and sit up to 6 hours in an 8 hour day. 23 claimant must also be allowed to alternate between a 24 standing and sitting position for up to 5 minutes every 25 hour; so long as the claimant does not leave her 26 workstation. 27 postural activities, except that she cannot climb 28 ropes, ladders, and scaffolds. The She is also limited to occasional 9 She must avoid 1 concentrated exposure to cold, heat, wetness, humidity, 2 and vibration; and she cannot be exposed to heights or 3 hazards. 4 using her right upper extremity. 5 (AR 21.) Finally, she cannot lift above shoulder level He further stated that in making that RFC finding, he 6 considered all symptoms and the extent to which these symptoms 7 can reasonably be accepted as consistent with the objective 8 medical evidence and other evidence and also considered opinion 9 evidence. 10 (Id.) At the outset of his opinion, the ALJ acknowledged and 11 recounted the medical evidence showing that Plaintiff had the 12 severe impairments of degenerative disc disease of the lumbar 13 spine; status post right shoulder rotator cuff tear; and mild 14 degenerative changes of the cervical spine. (AR 19-20.) 15 also evaluated Plaintiff s subjective symptom testimony. He He 16 noted that Plaintiff testified that she had severe chronic 17 back pain and also reported pain in her neck and upper 18 trapezius with pain in the right deltoid area. (AR 21, 325.) 19 He further noted that Plaintiff testified she could not sit for 20 more than a few minutes at a time, had significant difficulty 21 with personal care needs, was irritable with others because of 22 her pain, was unable to sleep more than 3 hours at a time, and 23 spends about 20 hours each day lying down in bed. 24 171-18.) (AR 21, 154, The ALJ also acknowledged that Plaintiff s mother 25 submitted a form in support of Plaintiff s claim for benefits, 26 alleging that Plaintiff was significantly limited by her pain and 27 could not perform many basic household tasks. (AR 22, 163-70.) 28 The ALJ then wrote that [a]fter careful consideration of the 10 1 evidence, the undersigned finds that the claimant s medically 2 determinable impairments could reasonably be expected to cause 3 the alleged symptoms; however, the claimant s statements 4 concerning the intensity, persistence, and limiting effects of 5 these symptoms are not credible to the extent they are 6 inconsistent with the above residual functional capacity 7 assessment. (AR 22.) He further found that Plaintiff s and her 8 mother s allegations were not entirely credible because Plaintiff 9 admitted she was able to engage in activities inconsistent with 10 the level of disability she alleged for example, he noted that 11 Plaintiff is able to go grocery shopping and even drive a car 12 [(AR 166, 174)]. (AR 23.) He also noted that Plaintiff 13 stopped working in November 2007 because she was laid off, not 14 because she [was] physically unable to work, which strongly 15 suggests she would have continued working absent being laid off. 16 (Id.) 17 The ALJ then went on to discuss the medical evidence that 18 supported his RFC finding: 19 The record reveals that the claimant s impairments 20 are not so severe so as to preclude the claimant from 21 working. 22 with degenerative changes of the spine in January 2007, 23 she continued to work until she was laid off in November 24 2007 [(AR 248-49)]. 25 cervical pain, she has shown that she is capable of a 26 full range of motion in her upper extremities and lower 27 extremities. 28 examiner Dr. [Harlan] Bleecker noted that the claimant s Although the claimant was injured and assessed Furthermore, despite the claimant s Indeed, in November 2008, consultative 11 1 gait was normal and the claimant was able to walk on her 2 tiptoes and heels. 3 examinations were also normal at this time [(AR 326-28)]. 4 Finally, the claimant testified that her shoulder is 5 feeling better, and that she is able to move her arm. 6 [(AR 38-39.)] The claimant s motor and sensory 7 The claimant s treatment and diagnostic studies also 8 reveal that the claimant s condition is not as severe as 9 she alleges. The claimant s pain has been non-surgically 10 treated with home exercise, chiropractic treatment, pain 11 medications, and trigger point injections. 12 claimant has reported that her medications have helped to 13 alleviate 14 claimant s April 2008 NCS and EMG studies also showed no 15 evidence of active cervical radiculopathy in the right 16 upper extremity; as well as no evidence of carpal tunnel 17 syndrome or ulnar neuropathy in the right upper extremity 18 [(AR 19 November 2008 NCS showed right active L5 denervation, it 20 showed no other radiculopathy of the bilateral lower 21 extremities [(AR 365)]. 22 2008 lumbar spine MRI showed no evidence of spinal 23 stenosis or foraminal narrowing [(AR 362)]. 24 (AR 22.) her 239)]. pain [(AR 203-309, Furthermore, although Indeed, the 378-87.)] the The claimant s Finally, the claimant s August The ALJ stated that he gave great weight to the 25 medical record in its entirety, as well as to the opinion of 26 medical expert Dr. Hutson. (Id.) He noted that Dr. Hutson 27 testified that Plaintiff must be allowed to alternate between a 28 standing and sitting position for up to 5 minutes every hour; so 12 1 long as the claimant does not leave her workstation, that she is 2 limited to occasional postural activities, except that she 3 cannot climb ropes, ladders, or scaffolds, and that she must 4 avoid concentrated exposure to cold, heat, wetness, humidity, and 5 vibration; cannot be exposed to heights or hazards; and cannot 6 lift above shoulder level using her right upper extremity. 7 (Id.) The ALJ found that Dr. Hutson s assessment also generally 8 aligns with the assessments of consultative examiner Dr. Bleecker 9 and state agency consultant M. Bayar, M.D. (Id.) He noted that 10 Dr. Bleecker found that Plaintiff can only sit, stand, or walk 11 up to 30 minutes before needing to change activity and cannot 12 reach above shoulder level with the right arm, and Dr. Bayar 13 opined that the claimant can engage in occasional postural 14 activities. (AR 22-23.) The ALJ then pointed out that unlike 15 Dr. Hutson s assessment, Dr. Bleecker s and Dr. Bayar s 16 assessments also limit the claimant to lifting and carrying up to 17 10 pounds occasionally and frequently [(AR 328, 338-42)] ; the 18 ALJ gave Plaintiff the benefit of the doubt and thus limited 19 her to lifting and carrying up to 10 pounds occasionally and 20 frequently in accordance with Dr. Bleecker s and Dr. Bayar s 21 assessments. 22 (AR 23.) The ALJ then explained why he did not fully credit the 23 opinions of treating doctors Brian Padveen4 and Glenna Tolbert. 24 He noted that while Dr. Padveen opined that the claimant can 25 lift no more than 5 pounds [(AR 353)] and Dr. Tolbert opined 26 that the claimant can sit, stand, and walk for no more than 2 27 4 28 356.) Dr. Padveen is a doctor of chiropracty, not medicine. 13 (AR 1 hours in an 8 hour day [(AR 375)], Dr. Hutson testified that the 2 record provides no objective evidence of such extreme 3 limitations. (AR 23.) The ALJ resolved the inconsistencies in 4 favor of Dr. Hutson, a board-certified orthopedic surgeon who 5 had the advantage of the longitudinal view in this case. (Id.) 6 Thus, the ALJ found that [t]he combined effect of the claimant s 7 impairments is mild and does not preclude the performance of work 8 at less than the full range of light exertion. 9 10 3. (Id.) Analysis The ALJ did not err in determining Plaintiff s RFC because 11 his findings were supported by substantial evidence in the 12 record. The ALJ acknowledged that the record contained objective 13 evidence that Plaintiff had impairments in her neck, shoulder, 14 and back (AR 19-22), but he reasonably found that those 15 impairments, although severe, were not disabling. As the ALJ 16 noted, the EMG study performed in November 2008 showed L5 lumbar 17 spine denervation but no other radiculopathy in the lower 18 extremities (AR 22, 365), and the EMG and nerve conduction 19 studies in April 2008 also showed no evidence of active 20 radiculopathy and no evidence of carpal tunnel syndrome or ulnar 21 neuropathy (AR 22, 239). The MRI performed in August 2008 showed 22 only mild to moderate degenerative changes and no evidence of 23 spinal stenosis, foraminal narrowing, or disc protrusion. 24 22, 362.) (AR Similarly, X-rays of Plaintiff s neck and back in 25 March 2008 showed some evidence of disc disease but were 26 otherwise unremarkable ; the x-ray of Plaintiff s neck, in 27 addition, showed some abnormal curve but her vertebral heights 28 and disc spaces were within normal limits. 14 (AR 22, 244-45.) 1 An examination of Plaintiff s neck in April 2008 showed that 2 while she had restricted range of motion and muscle tenderness 3 and spasm, she also had a full range of motion in the bilateral 4 upper extremities, her [m]otor strength [was] grossly normal, 5 her sensation was grossly intact, her [d]eep tendon reflexes 6 [were] normal and symmetrical, and her [t]one [was] normal. 7 (AR 237.) In April 2009, Plaintiff reported that her pain level 8 was only a three on a scale of 10. 9 (AR 346.) Plaintiff points to an MRI performed in January 2009 10 reflecting mild loss of disc height and disc dessication at the 11 L3-L4 level, disc dessication at the L4-L5 level, and mild 12 hypertrophic changes at the L5-S1 level as evidence that her 13 impairments were more severe than the ALJ found (see J. Stip. at 14 5), but those MRI results appear consistent with the earlier MRI 15 results showing mild to moderate degeneration. 16 362 with AR 389.) (Compare AR The ALJ did not cite to these results in his 17 decision, but the evidence was cumulative, and thus the ALJ was 18 not required to specifically address it. See Magallanes v. 19 Bowen, 881 F.2d 747, 755 (9th Cir. 1989); Howard v. Barnhart, 341 20 F.3d 1006, 1012 (9th Cir. 2003) (ALJ need not discuss all 21 evidence but must explain only why significant, probative 22 evidence has been rejected); Mondragon v. Astrue, 364 F. App x 23 346, 349 (9th Cir. 2010) (ALJ not required to discuss doctors 24 specific statements when their substance was adequately 25 represented by the evidence the ALJ did discuss ). 26 Several doctors opinions in the record also supported the 27 ALJ s findings. As the ALJ noted, Dr. Bleecker found that 28 Plaintiff had decreased range of motion in her neck, back, and 15 1 right shoulder and reported a positive straight-leg raising test 2 in the supine position; he diagnosed her with degenerative disc 3 disease, degenerative arthritis lumbar spine, and rotator cuff 4 syndrome right shoulder. (AR 20, 326-28.) But Dr. Bleecker 5 also noted that Plaintiff had a normal gait; could walk on her 6 tiptoes and heels; had normal motor strength, sensation, and 7 reflexes; and had normal range of motion in the rest of her upper 8 and lower extremities. (AR 20, 22, 326-28.) Dr. Bleecker opined 9 that Plaintiff could sit, stand, and walk six out of eight hours 10 left to her own discretion as to when she changes activities but 11 could only do so 30 minutes at a time before she has to change 12 activity ; she could not reach above shoulder level with her 13 right arm; and she could lift 10 pounds occasionally, 10 pounds 14 frequently with no restrictions to the lower extremities. 15 328.) (AR Similarly, Dr. Bayar, after reviewing the medical evidence 16 in the record, found that Plaintiff could sit, stand, and walk 17 about six hours in an eight-hour workday, could lift 10 pounds 18 occasionally, and was limited to occasional postural activities 19 and use of the right arm above shoulder level. 20 42.) (AR 22-23, 339- Dr. Hutson, after reviewing the record, found that 21 Plaintiff could perform light work as long as she could stand up 22 for up to five minutes out of every hour without leaving the work 23 station, could not use her right arm above shoulder level, was 24 limited to occasional postural activities, and should avoid 25 heights, hazards, and certain temperature and environmental 26 factors. (AR 22-23, 39-43.) As the ALJ noted (AR 23), Dr. 27 Hutson specialized in orthopedics, and thus his opinion was 28 entitled to greater weight. See 20 C.F.R. §§ 404.1527(c)(5), 16 1 416.927(c)(5) ( We generally give more weight to the opinion of a 2 specialist about medical issues related to his or her area of 3 specialty than to the opinion of a source who is not a 4 specialist. ). The ALJ was entitled to rely on Dr. Bleecker s, 5 Dr. Bayar s, and Dr. Hutson s opinions in formulating his RFC 6 assessment because they were largely consistent with each other 7 and with other independent evidence in the record, including the 8 above-noted EMG study, MRI, and x-ray results. See Tonapetyan v. 9 Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (opinion of 10 nonexamining medical expert may constitute substantial evidence 11 when it is consistent with other independent evidence in the 12 record ). 13 Plaintiff asserts that the ALJ erred in finding that she 14 could sit up to six hours in an eight-hour day as long as she was 15 able to alternate between a standing and sitting position for up 16 to 5 minutes every hour (AR 21) because that finding, which was 17 based on Dr. Hutson s testimony, conflicted with Dr. Bleecker s 18 opinion that Plaintiff could only sit, stand, or walk up to 30 19 minutes at a time. (J. Stip. at 6.) But the two findings, 20 although not identical, are consistent with each other both 21 acknowledge that Plaintiff must be allowed to change positions 22 for a limited time frequently throughout the day to remain 23 comfortable. The ALJ was entitled to rely on Dr. Hutson s 24 assessment, which was consistent with, albeit not identical to, 25 Dr. Bleecker s. 26 See Batson, 359 F.3d at 1197 98. Plaintiff also argues that Dr. Hutson s opinion that she 27 would need to be allowed to stand up to five minutes in every 28 hour as long as she did not leave the work station (AR 40) is 17 1 not supported by the record because no evidence exists indicating 2 that Plaintiff should be restrained from leaving her work 3 station. (J. Stip. at 6.) 4 Hutson s testimony. Plaintiff has misinterpreted Dr. Reading that statement in the context of his 5 overall testimony and the record, it is clear that Dr. Hutson 6 meant that while Plaintiff was confined to her work station, she 7 needed to have the ability to stand up and change positions or 8 stretch at least five minutes of every hour. (See AR 39-40.) 9 This construction makes sense, as the only time Plaintiff would 10 need the option to get up and change positions was when she was 11 confined to her work station to leave the workstation, 12 Plaintiff necessarily would have already stood up. Dr. Hutson 13 clearly did not intend to say that Plaintiff should not be 14 allowed to leave the work station. 15 (See id.) To the extent they were inconsistent with his decision, the 16 ALJ also properly rejected the opinions of Dr. Padveen and Dr. 17 Tolbert. First, Dr. Padveen is a chiropractor and thus not an 18 acceptable medical source ; the ALJ was not required to give 19 significant weight to Dr. Padveen s opinions. See 20 C.F.R. 20 §§ 404.1513(a) & (d), 416.913(a) & (d); Gomez v. Chater, 74 F.3d 21 967, 970-71 (9th Cir. 1996) (opinions from other sources given 22 less weight than acceptable medical sources ); Kottke v. Astrue, 23 No. CV 07-05618-VBK, 2008 U.S. Dist. LEXIS 73329, at *13 (C.D. 24 Cal. Aug. 1, 2008) (holding that [t]he ALJ was not bound to 25 accept a residual functional capacity assessment rendered by a 26 chiropractor based on his own diagnosis because [t]o do so 27 would blur the line between the type of evidence which may be 28 considered from acceptable medical sources, as against evidence 18 1 from other sources ). Second, the ALJ properly rejected Dr. 2 Padveen s opinion that Plaintiff could not lift more than five 3 pounds because it was inconsistent with the other medical 4 evidence of record, including the opinions of Dr. Bleecker, Dr. 5 Hutson, and Dr. Bayer that Plaintiff could lift 10 pounds at 6 least occasionally. 7 The ALJ s RFC finding was otherwise consistent with Dr. 8 Padveen s opinion that Plaintiff should be precluded from 9 repetitive bending, stooping, twisting, and turning and 10 repetitive use of the right arm above the shoulder level. 11 (Compare AR 21 with AR 353.) Moreover, Dr. Padveen did not find 12 Plaintiff to be completely unable to work. He noted several work 13 restrictions but did not opine that Plaintiff was permanently and 14 totally disabled (see AR 353); he also reported that her shoulder 15 and back pain was only intermittent and mild to moderate and 16 noted that she reported only occasional, mild pain with 17 respect to recreational activities (AR 352-53). 18 The ALJ also properly rejected Dr. Tolbert s functional 19 capacity findings. Dr. Tolbert filled out a check-box form in 20 December 2009 stating that Plaintiff could not lift any weight; 21 could not sit, stand, or walk for more than two hours in an 22 eight-hour workday; and would have to miss more than four days of 23 work per month as a result of her impairments or treatments. 24 374-77.) (AR An ALJ is entitled to reject medical opinions that are 25 in the form of a checklist, lack supportive objective 26 evidence, and are contradicted by other evidence in the record. 27 Batson, 359 F.3d at 1195; see also Crane v. Shalala, 76 F.3d 251, 28 253 (9th Cir. 1996) (ALJ permissibly rejected [psychological 19 1 evaluations] because they were check-off reports that did not 2 contain any explanation of the bases of their conclusions ). Dr. 3 Tolbert s findings were inconsistent with the other evidence in 4 the record and were unsupported by adequate explanation. Indeed, 5 where Dr. Tolbert was asked to provide evidentiary support for 6 her opinion, she noted, I don t have sufficient information. 7 (AR 377.) Dr. Tolbert s treatment notes from 2009 to 2010 also 8 do not support her RFC assessment. Instead, they note only 9 Plaintiff s various subjective complaints of poor sleep and 10 difficulty walking; findings of reduced range of motion, which 11 the ALJ considered and incorporated into the RFC; and trigger 12 point injections into Plaintiff s back to alleviate pain, which, 13 the ALJ noted, based on Dr. Tolbert s notes, helped control 14 Plaintiff s symptoms. (See AR 22, 377 (noting sacroiliac joint 15 and lumbar facet conditions are improved and injections are 16 effective ); 378-87.) 17 Plaintiff argues that if the ALJ felt that Dr. Tolbert s or 18 Dr. Padveen s opinions were not supported by medically 19 acceptable clinical and laboratory diagnostic techniques, he had 20 the duty to recontact them. (J. Stip. at 4-5.) The claimant 21 bears the burden of proving that she is disabled. 22 Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). Meanel v. An ALJ is required 23 to recontact a doctor only if the doctor s report is ambiguous or 24 insufficient for the ALJ to make a disability determination. 25 Bayliss, 427 F.3d at 1217; see also 20 C.F.R. §§ 404.1512(e), 26 416.912(e). The ALJ found the evidence adequate to make a 27 determination regarding Plaintiff s disability, and, as noted 28 above, his opinion was supported by substantial evidence in the 20 1 record. Thus, he did not have a duty to contact the doctors. 2 See Bayliss, 427 F.3d at 1217. 3 The new evidence submitted to the Appeals Council does not 4 compel a different conclusion. Although the new evidence 5 bolstered the ALJ s finding that Plaintiff had medically 6 determinable physical impairments that were likely to cause her 7 some pain, the existence of some pain does not constitute a 8 disability if it does not prevent a plaintiff from working. See 9 Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (SSI program 10 intended to provide benefits to people who are unable to work; 11 awarding benefits in cases of nondisabling pain would expand the 12 class of recipients far beyond that contemplated by the 13 statute. ); Thorn v. Schweiker, 694 F.2d 170, 171 (8th Cir. 1982) 14 ( A showing that [claimant] had a back ailment alone would not 15 support a finding that she was disabled unless the limitations 16 imposed by the back ailment prevented her from engaging in 17 substantial gainful activity. ). The ALJ acknowledged that 18 Plaintiff had severe neck, back, and shoulder impairments. The 19 new evidence does not establish that Plaintiff was more 20 restricted in her capacity to work than the ALJ found, and thus 21 it does not detract from the ALJ s conclusion that Plaintiff 22 retained the RFC to perform less than a full range of light work. 23 Moreover, because the new evidence postdated the hearing date, it 24 must be afforded limited weight. See 20 C.F.R. §§ 404.970, 25 416.1470(b) ( If new and material evidence is submitted, the 26 Appeals Council shall consider the additional evidence only where 27 it relates to the period on or before the hearing date of the 28 administrative law judge hearing decision. ); but see Smith v. 21 1 Bowen, 829 F.2d 1222, 1225 (9th Cir. 1988) ( [R]eports containing 2 observations made after the period for disability are relevant to 3 assess the claimant s disability. ). 4 In sum, although Plaintiff points to various findings in the 5 record that could support a finding of disability if interpreted 6 differently than in the ALJ s opinion, this Court may not 7 second-guess the ALJ s findings simply because the evidence may 8 have been susceptible of other interpretations more favorable to 9 Plaintiff. See Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th 10 Cir. 2008). 11 B. 12 13 Reversal is therefore not warranted on this basis. The ALJ Did Not Improperly Discount Plaintiff s Subjective Symptom Testimony Plaintiff next argues that the ALJ failed to properly 14 evaluate Plaintiff s complaints of pain and did not properly 15 apply the pain standard. (J. Stip. at 16-19, 22-23.) According 16 to Plaintiff, the ALJ should not have discounted her testimony 17 that she was incapable of performing all but the most basic of 18 activities and was essentially bedridden, and he should not have 19 discounted her mother s allegations to the same effect. (Id.) 20 Reversal is not warranted on this basis, however, because the ALJ 21 made specific findings as to Plaintiff s and her mother s 22 credibility that were consistent with the medical evidence of 23 record. 24 25 1. Applicable law An ALJ s assessment of pain severity and claimant 26 credibility is entitled to great weight. See Weetman v. 27 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 28 F.2d 528, 531 (9th Cir. 1986). When the ALJ finds a claimant s 22 1 subjective complaints not credible, the ALJ must make specific 2 findings that support the conclusion. 3 F.3d 1228, 1234 (9th Cir. 2010). See Berry v. Astrue, 622 Absent affirmative evidence of 4 malingering, the ALJ must give clear and convincing reasons for 5 rejecting the claimant s testimony. Lester, 81 F.3d at 834. At 6 the same time, the ALJ is not required to believe every 7 allegation of disabling pain, or else disability benefits would 8 be available for the asking, a result plainly contrary to 42 9 U.S.C. § 423(d)(5)(A). Molina v. Astrue, 674 F.3d 1104, 1112 10 (9th Cir. 2012) (internal quotation marks and citation omitted). 11 If the ALJ s credibility finding was supported by substantial 12 evidence in the record, the reviewing court may not engage in 13 second-guessing. 14 15 2. Thomas, 278 F.3d at 959. Relevant facts In November 2008, Plaintiff filled out a function report in 16 which she stated that her pain prevented her from doing most 17 daily activities and that she spent approximately 20 out of 24 18 hours each day in bed. (AR 171-78.) Plaintiff noted that she 19 was able to feed her dog and let him in and out of the back yard, 20 that she was able to drive a car and walk, and that she could 21 leave the house on her own to go shopping and to doctor s 22 appointments, though her outings never exceed[ed] 45 minutes. 23 (AR 171, 174) She also stated that she was able to prepare 24 simple meals and do some laundry. (AR 173.) She stated that she 25 was no longer able to do most housework or leave the house to 26 socialize with friends, and that there were days she was in so 27 much pain she could not brush her teeth, shower, or get dressed. 28 (AR 172-75.) On the same day, Plaintiff s mother also filled out 23 1 a function report alleging that Plaintiff spent most of her day 2 lying on the couch or lying down in bed to alleviate her chronic 3 pain ; Plaintiff s mother s descriptions of Plaintiff s daily 4 activities generally echoed Plaintiff s own. 5 (See AR 163-70.) Plaintiff testified at the hearing that she had chronic 6 lower back pain and can t sit for more than five minutes 7 without having to get up or lie down, actually. (AR 34.) She 8 admitted that she did not use any assistive devices such as a 9 cane or back brace to move around. (Id.) She also admitted that 10 she had not been offered surgery for her back but took 11 medication, attended physical therapy, and used an electric 12 stimulus machine at home to treat her pain symptoms. (AR 35.) 13 She testified that her rotator cuff injury was pretty much 14 resolved with physical therapy, and she was able to use her arm 15 again. (AR 39.) She alleged that she did not feel she was able 16 to work and spent probably 20 hours a day lying down because of 17 her back pain. 18 19 3. (AR 36.) Analysis The ALJ found that Plaintiff s statements concerning the 20 intensity, persistence and limiting effects of [her] symptoms are 21 not credible to the extent they are inconsistent with [the ALJ s] 22 residual functional capacity assessment. (AR 22.) He also 23 found that Plaintiff s mother s allegations were not credible for 24 the same reasons. (AR 23.) Reversal is not warranted based on 25 the ALJ s alleged failure to make proper credibility findings or 26 properly consider Plaintiff s subjective symptoms. 27 Plaintiff contends that the ALJ could reject her subjective 28 symptom testimony only on the basis of specific findings 24 1 providing adequate justification. (J. Stip. at 18 (citing 2 Cotton v. Bowen, 799, F.2d 1403, 1407 (9th Cir. 1986))). Here, 3 the ALJ made specific, convincing findings in support of his 4 adverse credibility determination. He noted that clinical 5 findings from several doctors revealed only mild to moderate 6 functional impairments and showed that Plaintiff was capable of a 7 full range of motion in her upper and lower extremities; 8 Plaintiff testified that her shoulder was feeling better and she 9 was able to move her arm; several test results, including an MRI, 10 revealed only minimal abnormalities in Plaintiff s neck and back; 11 several doctors found Plaintiff capable of performing what 12 amounted to light work; and Plaintiff s symptoms appeared to 13 improve with medication and conservative treatment. (AR 22.) 14 Indeed, as Plaintiff admitted, no doctor had ever recommended 15 surgery for her. (AR 35 (Plaintiff s testimony that she had not 16 been offered surgery for [her] back ); see also, e.g., AR 213 17 (noting surgery not authorized for Plaintiff s shoulder); AR 18 225 (stating that treatment plan was no treatment at this 19 time ).) Plaintiff argues that the medical evidence shows that 20 she had conditions that could cause lumbar and cervical spine 21 pain (see AR 18); but the ALJ did not hold that Plaintiff had no 22 impairments. Instead, as the ALJ correctly noted, Plaintiff s 23 medically determinable impairments could be expected to cause the 24 alleged symptoms, but Plaintiff s testimony concerning the 25 intensity, persistence and limiting effects of those symptoms 26 was not credible for the reasons identified by the ALJ. (AR 22.) 27 The ALJ s reasons for rejecting Plaintiff s and her mother s 28 testimony in total constituted appropriate bases for discounting 25 1 Plaintiff s subjective symptom testimony. See, e.g., Williamson 2 v. Comm r of Soc. Sec., 438 F. App x 609, 610 (9th Cir. 2011) 3 (proper for ALJ to discount plaintiff s testimony when there was 4 evidence plaintiff exaggerated her symptoms ); Tonapetyan, 242 5 F.3d at 1148 (credibility determination based on, among other 6 things, plaintiff s tendency to exaggerate proper when 7 supported by substantial evidence ); Tommasetti, 533 F.3d at 8 1039 (ALJ may infer that claimant s response to conservative 9 treatment undermines [claimant s] reports regarding the disabling 10 nature of his pain ); Johnson v. Shalala, 60 F.3d 1428, 1434 (9th 11 Cir. 1995) (holding that contradictions between claimant s 12 testimony and the relevant medical evidence provided clear and 13 convincing reasons for ALJ to reject plaintiff s subjective 14 symptom testimony); Flaten v. Sec y of Health & Human Servs., 44 15 F.3d 1453, 1464 (9th Cir. 1995) (ALJ may properly rely on minimal 16 medical treatment); Stubbs-Danielson v. Astrue, 539 F.3d 1169, 17 1175 (9th Cir. 2008) (doctors opinions finding plaintiff could 18 perform a limited range of work [] support the ALJ s credibility 19 determination ). 20 Plaintiff also argues that the ALJ erred in considering 21 Plaintiff s ability to engage in daily activities as evidence of 22 her lack of credibility. 23 260 F.3d at 1050).) (J. Stip. at 16-17 (citing Vertigan, Although it is true that one does not need 24 to be utterly incapacitated in order to be disabled, Vertigan, 25 260 F.3d at 1050, the extent of Plaintiff s activity here 26 supports the ALJ s finding that Plaintiff s reports of her 27 impairment were not fully credible. See Bray v. Comm r of Soc. 28 Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009); Curry v. 26 1 Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1990) (finding that 2 claimant s ability to take care of her personal needs, prepare 3 easy meals, do light housework and shop for some groceries . . . 4 may be seen as inconsistent with the presence of a condition 5 which would preclude all work activity ) (citing Fair, 885 F.2d 6 at 604). The ALJ properly noted that Plaintiff s ability to do 7 daily activities such as driving and grocery shopping was at odds 8 with her testimony that she had to lie down for approximately 20 9 hours per day because of pain and was essentially bedridden. (AR 10 23.) 11 Plaintiff further contends that the ALJ erred in finding she 12 was not fully credible because she admitted she stopped working 13 on November 16, 2007, not because she was no longer able to work 14 due to her alleged impairments but because she was laid off. 15 ALJ did not err in considering this fact. The See Bruton v. 16 Massanari, 268 F.3d 824, 826 (9th Cir. 2001) (holding that ALJ 17 properly considered fact that claimant stopped working because he 18 was laid off, not because of medical disability). To apply for 19 unemployment benefits, Plaintiff had to hold herself out as able 20 to work; her assertion that she became disabled on November 16, 21 2007, when she continued to receive unemployment benefits for 22 several months thereafter was not credible. See Carmickle v. 23 Comm r, Soc. Sec. Admin., 533 F.3d 1155, 1161 62 (9th Cir. 2009) 24 (noting that applying for unemployment benefits is inconsistent 25 with disability because one has to hold oneself out as 26 available, willing and able to work ). Moreover, while 27 Plaintiff s symptoms could have worsened since she was laid off, 28 the medical evidence still did not support a finding that she had 27 1 become disabled, for the reasons discussed above. 2 This Court may not second-guess the ALJ s credibility 3 finding simply because the evidence may have been susceptible of 4 other interpretations more favorable to Plaintiff. 5 Tommasetti, 533 F.3d at 1039. See The ALJ reasonably and properly 6 discredited Plaintiff s and her mother s testimony regarding the 7 severity of Plaintiff s symptoms and gave clear and convincing 8 reasons for his adverse credibility finding. Reversal is 9 therefore not warranted on this basis. 10 11 12 C. The ALJ Properly Concluded That Plaintiff Could Perform Her Past Relevant Work and Other Work Plaintiff asserts that the ALJ improperly concluded that 13 Plaintiff could perform her past relevant work as a credit 14 analyst and could also perform other work. 15 16 1. (J. Stip. at 23-25.) Applicable law Plaintiff has the burden or proving that her alleged 17 physical or mental impairments prevented her from engaging in her 18 previous occupation. See Vertigan, 260 F.3d at 1051. To 19 determine whether a claimant has the residual capacity to perform 20 his past relevant work, the [ALJ] must ascertain the demands of 21 the claimant s former work and then compare the demands with his 22 present capacity. 23 Cir. 1986). Villa v. Heckler, 797 F.2d 794, 797-98 (9th Plaintiff has the burden of proving she was unable 24 to return to her former type of work and not just to her former 25 job. Orteza v. Shalala, 50 F.3d 748, 751 (9th Cir. 1995); see 20 26 C.F.R. §§ 404.1520(f), 416.920(f); Valencia v. Heckler, 751 F.2d 27 1082, 1086-87 (9th Cir. 1985) (classifying work according to 28 isolated tasks not allowed). Former type of work means the 28 1 general kind of work that Plaintiff used to perform. See Villa, 2 797 F.2d at 798. 3 4 2. Analysis As discussed above, the ALJ s RFC finding was supported by 5 substantial evidence and was therefore proper; thus, to the 6 extent Plaintiff argues that the ALJ s determination that she 7 could perform her past relevant work or other work was erroneous 8 because it was based on an improper RFC finding, that argument 9 fails for the reasons outlined above. The ALJ properly posed a 10 hypothetical to the VE containing all of the limitations he found 11 credible based on the evidence of record; in response, the VE 12 testified that Plaintiff could perform her past relevant work as 13 a credit analyst as generally performed. (AR 44); see Bayliss, 14 427 F.3d at 1218 (holding that because [t]he hypothetical that 15 the ALJ posed to the VE contained all of the limitations that the 16 ALJ found credible and supported by substantial evidence in the 17 record, ALJ s reliance on testimony the VE gave in response to 18 the hypothetical therefore was proper ). 19 Plaintiff argues that the ALJ s finding was in error because 20 she cannot perform her past relevant work as actually performed. 21 (J. Stip. at 23-24.) The VE interpreted Plaintiff s past 22 relevant work as actually performed as a combination of the jobs 23 of credit analyst (DOT 160.267-022, 1991 WL 647265), a sedentary 24 job, and customer service representative (DOT 205.362-026, 1991 25 WL 671712), a light exertional-level job. (AR 43.) It is 26 undisputed that the ALJ found Plaintiff capable of performing 27 less than a full range of light work; thus, she would not 28 necessarily be capable of performing a job such as the customer 29 1 service representative job that required light exertion. But the 2 ALJ did not find that Plaintiff could perform her past relevant 3 work as actually performed; he instead found that she could 4 perform the credit analyst job as it is generally performed, 5 which requires only sedentary exertion. 6 was proper. (AR 24.) That finding See 20 C.F.R. §§ 404.1560(b)(2), 416.960(b)(2) (VE 7 may offer testimony in response to hypothetical question about 8 whether person with claimant s impairments can meet demands of 9 claimant s previous work either as the claimant actually 10 performed it or as generally performed in the national economy 11 (emphasis added)). The VE s testimony that a hypothetical 12 individual with Plaintiff s limitations could perform the work of 13 credit analyst as generally performed was consistent with the DOT 14 description of the credit analyst position and was therefore 15 supported by substantial evidence. (AR 44); see DOT 160.267-022, 16 1991 WL 647265; Bray, 554 F.3d at 1230 n.3. The ALJ therefore 17 did not err in relying on the VE s testimony. 18 Moreover, even if the ALJ did err in finding that Plaintiff 19 was capable of performing the credit analyst job as generally 20 performed, the error was harmless because the ALJ made the 21 alternative finding at step five that Plaintiff could perform the 22 sedentary job of receptionist. (AR 24-25); see Carmickle, 533 23 F.3d at 1162 (harmless-error rule applies to review of 24 administrative decisions regarding disability); see also Gallo v. 25 Comm r of Soc. Sec. Admin., 449 F. App x 648, 650 (9th Cir. 2011) 26 ( Because the ALJ satisfied his burden at Step 5 by relying on 27 the VE s testimony about the Addresser job, any error that the 28 ALJ may have committed by relying on the testimony about the 30 1 credit checker job was harmless (citing Carmickle, 533 F.3d at 2 1162)). Plaintiff argues that she could not perform the 3 receptionist job because her RFC was more restricted than the ALJ 4 found (J. Stip. at 24), but for the reasons stated above that 5 argument fails. Reversal is therefore not warranted on this 6 basis. 7 VI. CONCLUSION 8 Consistent with the foregoing, and pursuant to sentence four 9 of 42 U.S.C. § 405(g),5 IT IS ORDERED that judgment be entered 10 AFFIRMING the decision of the Commissioner and dismissing this 11 action with prejudice. IT IS FURTHER ORDERED that the Clerk 12 serve copies of this Order and the Judgment on counsel for both 13 parties. 14 15 DATED: October 15, 2012 16 _______________________ JEAN ROSENBLUTH U.S. Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 5 This sentence provides: The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. 31

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