Carlos Martinez v. Michael J Astrue, No. 2:2011cv10082 - Document 17 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER by Magistrate Judge Jean P Rosenbluth. 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. (twdb)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 CARLOS MARTINEZ, 10 Plaintiff, 11 12 13 vs. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 14 Defendant. 15 ) Case No. CV 11-10082-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) AFFIRMING THE COMMISSIONER ) ) ) ) ) ) ) 16 17 I. PROCEEDINGS 18 Plaintiff seeks review of the Commissioner s final decision 19 denying his 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 20, 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 October 14, 1969. 3 Record ( AR ) 140.) 4 Salvador. (Administrative He completed nine years of education in El (AR 29-30.) Plaintiff has previously worked as a 5 packer in a warehouse, a plastic cutter, a machine operator, a 6 forklift operator, and a welder. 7 (AR 32-42.) On May 14, 2004, Plaintiff was hurt at work when a loaded 8 pallet struck him on the right lower leg and shin, puncturing the 9 skin. (AR 65.) In September 2004, Plaintiff filed an 10 application for SSI benefits, which an Administrative Law Judge 11 ( ALJ ) granted on June 29, 2006, after finding that Plaintiff 12 had been disabled during a closed period from May 14, 2004, to 13 November 6, 2005, because of a contusion and puncture laceration 14 of the right leg, tendonitis of both shoulders with possible 15 impingement, osteoarthritis of the right shoulder, and 16 osteoarthritis of the left knee medial. (AR 63-71.) Plaintiff s 17 SSI benefits ceased at the end of January 2006, which was the 18 second month after his disability ended. 19 (AR 71.) On June 4, 2009, Plaintiff filed the instant SSI and DIB 20 applications, alleging that he had been unable to work since 21 December 24, 2008, because of fibromyalgia and back pain. 22 140-47, 168, 201.) Plaintiff later alleged that his disabilities 23 included foot nerve damage, a hernia, and depression. 24 201.) (AR (AR After Plaintiff s applications were denied, he requested a 25 hearing before an ALJ. (AR 76-80, 82-92.) A hearing was held on 26 November 3, 2010, at which Plaintiff, who was represented by 27 counsel, appeared and testified through an interpreter. 28 55.) Vocational Expert ( VE ) Jane Hale also testified. 2 (AR 29(AR 56- 1 61.) In a written decision issued on December 23, 2010, the ALJ 2 determined that Plaintiff was not disabled. (AR 10-19.) On 3 October 13, 2011, the Appeals Council denied Plaintiff s request 4 for review. (AR 1-5.) This action followed. 5 III. STANDARD OF REVIEW 6 Pursuant to 42 U.S.C. § 405(g), a district court may review 7 the Commissioner s decision to deny benefits. The ALJ s findings 8 and decision should be upheld if they are free from legal error 9 and are supported by substantial evidence based on the record as 10 a whole. § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 11 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 12 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such 13 evidence as a reasonable person might accept as adequate to 14 support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter 15 v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 16 a scintilla but less than a preponderance. It is more than Lingenfelter, 504 17 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 18 882 (9th Cir. 2006)). To determine whether substantial evidence 19 supports a finding, the reviewing court must review the 20 administrative record as a whole, weighing both the evidence that 21 supports and the evidence that detracts from the Commissioner s 22 conclusion. 23 1996). Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. If the evidence can reasonably support either affirming 24 or reversing, the reviewing court may not substitute its 25 judgment for that of the Commissioner. Id. at 720-21. 26 IV. THE EVALUATION OF DISABILITY 27 People are disabled for purposes of receiving Social 28 Security benefits if they are unable to engage in any substantial 3 1 gainful activity owing to a physical or mental impairment that is 2 expected to result in death or which has lasted, or is expected 3 to last, for a continuous period of at least 12 months. 42 4 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 5 (9th Cir. 1992). 6 A. 7 The ALJ follows a five-step sequential evaluation process in The Five-Step Evaluation Process 8 assessing whether a claimant is disabled. 20 C.F.R. 9 §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 10 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). In the first 11 step, the Commissioner must determine whether the claimant is 12 currently engaged in substantial gainful activity; if so, the 13 claimant is not disabled and the claim must be denied. 14 §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not 15 engaged in substantial gainful activity, the second step requires 16 the Commissioner to determine whether the claimant has a severe 17 impairment or combination of impairments significantly limiting 18 his ability to do basic work activities; if not, a finding of not 19 disabled is made and the claim must be denied. 20 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a 21 severe impairment or combination of impairments, the third step 22 requires the Commissioner to determine whether the impairment or 23 combination of impairments meets or equals an impairment in the 24 Listing of Impairments ( Listing ) set forth at 20 C.F.R., Part 25 404, Subpart P, Appendix 1; if so, disability is conclusively 26 presumed and benefits are awarded. 27 416.920(a)(4)(iii). §§ 404.1520(a)(4)(iii), If the claimant s impairment or combination 28 of impairments does not meet or equal an impairment in the 4 1 Listing, the fourth step requires the Commissioner to determine 2 whether the claimant has sufficient residual functional capacity 3 ( RFC )1 to perform his past work; if so, the claimant is not 4 disabled and the claim must be denied. 5 416.920(a)(4)(iv). §§ 404.1520(a)(4)(iv), The claimant has the burden of proving that 6 she is unable to perform past relevant work. 7 1257. Drouin, 966 F.2d at If the claimant meets that burden, a prima facie case of 8 disability is established. Id. If that happens or if the 9 claimant has no past relevant work, the Commissioner then bears 10 the burden of establishing that the claimant is not disabled 11 because she can perform other substantial gainful work available 12 in the national economy. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 13 That determination comprises the fifth and final step in the 14 sequential analysis. §§ 404.1520, 416.920; Lester, 81 F.3d at 15 828 n.5; Drouin, 966 F.2d at 1257. 16 B. 17 At step one, the ALJ found that Plaintiff had not engaged in The ALJ s Application of the Five-Step Process 18 any substantial gainful activity since December 24, 2008. 19 12.) (AR At step two, the ALJ concluded that Plaintiff had the 20 severe impairments of disc desiccation at L4-5 and L5-S1 with 21 moderate to significant central canal stenosis at L4-5 secondary 22 to a 6 mm disc protrusion, a 2.5 mm disc protrusion with 23 annular tear at L5-S1, facet degenerative joint disease at L524 S1 and L4-5, status post blunt trauma puncture wound of the 25 26 1 RFC is what a claimant can still do despite existing 27 exertional and nonexertional limitations. 20 C.F.R. §§ 404.1545, 28 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 5 1 right lower extremity, gastroesophageal reflux disease, and 2 depression. (AR 12-13.) At step three, the ALJ determined that 3 Plaintiff s impairments did not meet or equal any of the 4 impairments in the Listing. (AR 13.) At step four, the ALJ 5 found that Plaintiff retained the RFC to perform light work, 2 6 with the limitations that Plaintiff can perform postural 7 activities occasionally, cannot climb ladders, ropes, or 8 scaffolds, cannot work around heights and hazards, and is limited 9 to simple to moderately complex work. (AR 13.) Based on the 10 VE s testimony, the ALJ concluded that Plaintiff was unable to 11 perform any of his past relevant work. (AR 17.) At step five, 12 the ALJ concluded that jobs existed in significant numbers in the 13 national economy that Plaintiff could perform. (AR 18.) 14 Accordingly, the ALJ determined that Plaintiff was not disabled. 15 (AR 18-19.) 16 V. RELEVANT FACTS 17 Between 2004 and 2008, doctors at Crown City Medical Group 18 diagnosed Plaintiff with, among other things, fibromyalgia, 19 gastroesophageal reflux disease, and low-back pain. (AR 537-58, 20 580, 576-80.) 21 22 23 24 25 26 27 28 2 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 Dr. Philip A. Sobol, a board-certified orthopedic surgeon, 2 was Plaintiff s primary treating physician in multiple workers 3 compensation cases beginning in 2001. (AR 582.) On July 18, 4 2008, Dr. Daniel J. Paveloff, who worked with Dr. Sobol and was 5 board certified in physical medicine and rehabilitation and 6 electrodiagnostic medicine, reevaluated Plaintiff. (AR 243-49.) 7 Dr. Paveloff noted that Plaintiff complained of right leg pain 8 and skin irritation and prescribed Lidoderm patches. 9 246.) (AR 244, He found that Plaintiff could work with the unidentified 10 restrictions that Dr. Sobol had found in a December 2004 11 assessment. 12 (AR 247.) On September 7, 2008, Plaintiff visited the emergency room 13 at Huntington Memorial Hospital, stating that his car had been 14 rear-ended the previous day and he was having low-back and upper15 right-back pain. (AR 256.) X-rays were negative and Plaintiff 16 was diagnosed with back muscle strain and given Motrin. (AR 17 257.) 18 On October 1, 2008, Plaintiff again visited the emergency 19 room at Huntington Memorial Hospital, where he complained of low20 back pain and acknowledged lifting heavy objects improperly at 21 work. (AR 252-53.) He was prescribed Motrin, Vicodin, and 22 Robaxin and told to avoid heavy lifting, wear a back brace, and 23 follow up with his regular doctor and physical therapy as 24 scheduled. 25 (AR 253.) On October 9, 2008, Dr. Maria V.G. Sioson-Avala at Crown 26 City Medical Group noted that Plaintiff complained of chronic 27 low-back pain that sometimes radiated to his right leg; she 28 ordered CT scans and recommended that Plaintiff limit weight7 1 bearing activity, wear a brace for support, and take Motrin. (AR 2 285.) 3 On December 3, 2008, as part of Plaintiff s workers 4 compensation case, Dr. Philip M. Lichtenfeld noted that he had 5 seen Plaintiff on September 19 for complaints of spasm and pain 6 in his cervical, thoracic, and lumbar spine. (AR 262.) Since 7 that time, Plaintiff had been treated with physical therapy, 8 chiropractic manipulations, Motrin, and Robaxin, which had 9 improved his symptoms. (AR 267.) Dr. Lichtenfeld found that 10 Plaintiff s cervical spine had only slight muscle spasm and full 11 range of motion, his thoracic spine had slight to moderate muscle 12 spasm with slight tenderness to palpation and range of motion, 13 and his lumbar spine had no muscle spasm with slight to moderate 14 pain on palpation and limited range of motion with flexion to 65 15 degrees, extension to 25 degrees, and bending to 30 degrees. 16 268.) (AR Dr. Lichtenfeld concluded that Plaintiff had received 17 maximum improvement with conservative treatment and discharged 18 him from his care. 19 (Id.) On June 10, 2009, Dr. Sioson-Avala noted that Plaintiff 20 complained of back pain and wanted her to sign a disability form, 21 which she declined to do. (AR 284.) On June 24, 2009, Dr. Sobol 22 found that Plaintiff had tenderness around the lumbar spine, 23 positive straight-leg tests, and reduced ranges of motion of the 24 lumbar spine. (AR 392.) Plaintiff s lower extremities had 25 decreased sensation to pinprick and light touch, but he had 26 normal muscle bulk and tone and no atrophy, spasticity, or motor 27 weakness. (AR 393.) Dr. Sobol diagnosed Plaintiff with 28 [l]umbosacral musculoligamentous sprain/strain with attendant 8 1 bilateral lower extremity radiculitis, right side worse than 2 left. (AR 394.) He also noted Plaintiff s complaints of 3 depression, anxiety and stress, associated with insomnia 4 secondary to chronic pain and disability and complaints of 5 gastrointestinal upset, but he deferred those issues to the 6 appropriate specialist. (Id.) Dr. Sobol recommended physical 7 therapy and prescribed Norco, Norflex, Dendracin pain gel, and a 8 low-back support. (AR 394-95.) On June 25, 2009, Dr. J. Babaran 9 at Crown City Medical Group noted Plaintiff s complaints of 10 right-foot problems and diagnosed traumatic injury of the right 11 leg, rule out fracture. 12 (AR 283.) On August 7, 2009, Dr. Sahniah Siciarz-Lambert, a board- 13 certified internist, examined Plaintiff and completed an 14 internal-medicine evaluation at the Social Security 15 Administration s request. (AR 342-47.) Plaintiff reported that 16 he had been diagnosed with fibromyalgia and suffered from neck, 17 shoulder, back, and right-thigh pain; nausea; depression; and 18 anxiety. (AR 342.) After noting that Plaintiff behaved in a 19 very helpless manner throughout the evaluation (AR 343-44), Dr. 20 Siciarz-Lambert stated that she could not endorse Plaintiff s 21 fibromyalgia diagnosis because of his significant depression 22 overlay (AR 346). Dr. Siciarz-Lambert noted that Plaintiff 23 feels that his major problem is the depression and anxiety, and 24 she believed that the somatization expressed is a consequence of 25 the psychiatric component. Id. Dr. Siciarz-Lambert, moreover, 26 tested Plaintiff for fibromyalgia using the American Rheumatology 27 Association criteria and found a significant discordance between 28 the discreet testing and the direct testing of fibromyalgia 9 1 tender points, noting that Plaintiff had no pain in any tender 2 point on discreet testing but moderate or severe pain in all 3 tender points on direct testing.3 (Id. at 344-46.) Dr. Siciarz- 4 Lambert noted that Plaintiff s history was not truly consistent 5 with what one would expect in an individual with fibromyalgia. 6 (Id. at 346.) She further found that Plaintiff had a history of 7 low-back pain but fairly normal ranges of motion and no 8 significant evidence of radiculopathy, while radiographs taken 9 that day did not demonstrate significant pathology. (Id.) Dr. 10 Siciarz-Lambert concluded that Plaintiff should be limited to 11 pushing, pulling, lifting, and carrying 50 pounds occasionally 12 and 25 pounds frequently, but he had no other limitations. 13 (Id.) On September 10, 2009, Steven I. Brawer, a clinical 14 psychologist, performed a psychological evaluation at SSA s 15 request. (AR 349-55.) After an interview and psychological 16 testing of Plaintiff, Brawer diagnosed him with depressive 17 disorder secondary to general medication condition and noted that 18 his nonverbal intelligence was in the borderline/low-average 19 range. (AR 354.) Brawer found that Plaintiff could be mildly 20 diminished in his ability to sustain concentration and attention, 21 22 3 Fibromyalgia is a [r]heumatic syndrome of pain in 23 connective tissues and muscles without muscle weakness, aches, multiple tender areas, 24 characterized by general bodyand reduced exercise tolerance; seen fatigue, sleep disturbances, 25 most frequently among women 20 to 50 years of age; cause is 26 27 28 unknown. Ida G. Dox et al., Attorney s Illustrated Medical Dictionary 55 (Supp. 2004). Diagnosis is made based on widespread pain for at least three months and pain on digital palpation present in at least 11 of 18 specific sites on the body. Id.; see also SSR 12-2P, 2012 WL 3104869, at *2-3 (listing diagnostic criteria for fibromyalgia). 10 1 effectively manage work stress, persist for a regular workday, 2 and sustain stamina. (Id.) He concluded that Plaintiff would be 3 able to perform simple, repetitive tasks and may be able to 4 perform some detailed, varied, or complex nonverbal tasks ; he 5 was also capable of following a routine and organizing himself 6 for basic tasks, working independently, and sustaining 7 cooperative relationships with coworkers and supervisors. 8 (Id.) On October 9, 2009, Dr. Babaran noted that Plaintiff 9 complained of pain and swelling in his lower right leg, and he 10 diagnosed neuropathy. (AR 569.) On October 20, 2009, 11 psychiatrist L.O. Mallare, an SSA medical consultant, reviewed 12 Plaintiff s records and completed a Mental Residual Functional 13 Capacity Assessment.4 (AR 356-58.) Dr. Mallare opined that 14 Plaintiff had moderate limitations in his ability to understand, 15 remember, and carry out detailed instructions, but he was not 16 significantly limited in any other respect. (Id.) He concluded 17 that Plaintiff had adequate mental function to perform 1-2 step 18 and some detailed instr[uctions] and was able to interact 19 appropriately with others and adapt to simple changes in the 20 workplace. (AR 358.) Dr. Mallare also completed a Psychiatric 21 Review Technique form, finding that Plaintiff had an affective 22 disorder that resulted in mild restriction of activities of daily 23 living; mild difficulties in maintaining social functioning; and 24 mild difficulties in maintaining concentration, persistence, and 25 pace. (AR 359-69.) Dr. Mallare noted that there was 26 27 28 4 Although Dr. Mallare does not indicate his area of expertise, the ALJ indicated that he was a psychiatrist. (See AR 16.) 11 1 insufficient evidence of periods of decompensation. 2 (AR 367.) Also on October 20, 2009, SSA medical consultant Dr. L. 3 Schwartz reviewed Plaintiff s records and completed a Physical 4 Residual Functional Capacity Assessment. (AR 370-74.) Dr. 5 Schwartz found that Plaintiff had diagnoses of fibromyalgia and 6 cervical strain but could occasionally lift and/or carry 50 7 pounds, frequently lift and/or carry 25 pounds, stand and/or walk 8 for about six hours in an eight-hour workday, and sit for about 9 six hours in an eight-hour workday. 10 (AR 370-71.) On October 27, 2009, Dr. Stanley Tu at Crown City Medical 11 Group noted Plaintiff s complaints of burning feeling in his 12 right leg and diagnosed neuropathy. (AR 568.) On November 6, 13 2009, Dr. Arthur E. Lipper, a board-certified internist, found 14 that Plaintiff had gastroesophageal reflux disease and 15 heliocobacter pylori infection but did not have a hernia. (AR 16 379.) 17 On October 30, 2009, Dr. Thomas Curtis, a board-certified 18 psychiatrist who had been treating Plaintiff since July 2009 as 19 part of a workers compensation claim, completed a psychiatric 20 evaluation.5 (AR 313-41.) Based on the results of several 21 psychological tests, Dr. Curtis diagnosed Plaintiff with 22 depressive disorder not otherwise specified with anxiety and 23 psychological factors affecting a medical condition and assigned 24 25 26 27 5 October 30, 28 2009, his Although Dr. Curtis completed his exam on313.) report was dated November 17, 2009. (AR 12 1 a global assessment of functioning ( GAF ) score of 55.6 2 327.) (AR Dr. Curtis opined that Plaintiff had moderate impairment 3 in his ability to perform activities of daily living; moderate 4 impairment in social functioning; moderate impairment in 5 concentration, persistence, and pace; and moderate impairment in 6 his ability to adapt to worklike settings. (AR 331-32.) Dr. 7 Curtis noted that Plaintiff had been treated with psychotherapy, 8 biofeedback, and psychotropic medications, which had helped 9 alleviate his symptoms. (AR 316.) Dr. Curtis concluded that 10 Plaintiff was totally temporarily disabled on a combined 11 physical and emotional basis. 12 (AR 329.) On November 24, 2009, Dr. Gregg H. Small, who was board 13 certified in physical medicine and rehabilitation and 14 electrodiagnostic medicine, conducted EMG and nerve conduction 15 studies on Plaintiff, both of which were normal. 16 (AR 413-17.) On December 21, 2009, Dr. Sobol found that Plaintiff had 17 residual tenderness over parts of his lumbar spine, positive 18 seated and supine straight-leg test, and reduced range of motion 19 of the lumbar spine. (AR 425-26.) He noted that Plaintiff had 20 decreased sensation to pinprick and light touch in both lower 21 extremities, right side greater than left, but no other focal 22 lower extremity deficits, including motor or reflex. (AR 426.) 23 24 25 26 27 28 6 A GAF score represents a present rating of overall psychological functioning on a scale of 0 to 100. See Am. Psychiatric Ass n, Diagnostic and Statistical Manual of Disorders, Text Revision 34 (4th ed. 2000). A GAF score in the range of 51 to 60 indicates [m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational or school functioning (e.g., few friends, conflicts with peers or co-workers). Id. 13 1 Plaintiff ambulated without appreciable limp or antalgia, and 2 could heel- and toe-walk without gross abnormality. (Id.) After 3 noting the results of an October 26, 2009 MRI, Dr. Sobol 4 diagnosed 5 [l]umbosacral 6 with MRI evidence of disc desiccation at L4-5 and L5-S1, 7 moderately significant central canal stenosis at L4-5 8 secondary to 6 mm disc protrusion and short pedicles 9 resulting in partial lateral recess obliteration, 2.5 mm 10 disc protrusion with annular tear at L5-S1 and facet 11 degenerative joint disease at L5-S1 greater than L4-5, 12 per study dated October 25, 2009, with attendant right 13 greater than left lower extremity radiculitis. 14 (AR 422, 427.) spine musculoligamentous sprain/strain, Dr. Sobol also noted Plaintiff s complaints of 15 depression, stress, and gastrointestinal upset. (Id.) Dr. Sobol 16 found that Plaintiff s back condition had attained maximum 17 medical benefit and was permanent and stationary. (AR 428.) He 18 opined that Plaintiff was precluded from activities requiring 19 heavy lifting, repetitive bending and stooping and from very 20 prolonged weight-bearing and should be off his feet for one 21 hour out of an eight-hour workday. 22 (AR 434.) On March 9, 2010, Dr. Lipper noted that Plaintiff s 23 gastrointestinal symptoms were 50% better after treatment with 24 antibiotics but that he continued to have mild upper GI 25 symptoms. (AR 463.) On May 19, 2010, Dr. Curtis noted that 26 Plaintiff had visible anxiety and depressed expressions. (AR 27 474.) 28 On June 11, 2010, Dr. Ronald C. Woods, who worked with Dr. 14 1 Sobol, noted that Plaintiff was having a flare-up of his low-back 2 symptoms. (AR 506.) Dr. Woods noted that he would like to try 3 conservative treatment because Plaintiff had benefited from 4 that in the past. (Id.) He recommended chiropractic treatment 5 two times a week for four weeks and refilled Plaintiff s 6 prescriptions for Norco and Dendracin lotion. (Id.) Dr. Woods 7 opined that Plaintiff would be temporarily totally disabled for 8 six weeks. 9 (Id.) On June 17, 2010, Dr. Babaran noted Plaintiff s complaint of 10 right-leg pain and diagnosed tinea vs. neuropathy and 11 fibromyalgia. 12 (AR 560.) On July 29, 2010, Dr. Sobol conducted a final orthopedic 13 evaluation. (AR 494-501.) Dr. Sobol found that Plaintiff s 14 lumbar spine had normal symmetry and contour, residual tenderness 15 with palpation, positive straight-leg test bilaterally, and 16 reduced ranges of motion. (AR 496-97.) A neurological exam 17 revealed continued decreased sensation to pinprick and light 18 touch in both lower extremities, right side greater than left, 19 but normal muscle bulk and tone, normal reflexes, no weakness on 20 motor testing, and no evidence of atrophy or spasticity. 21 497-98.) (AR Plaintiff s gait was normal with no evidence of limp or 22 antalgia, and he was able to heel-walk and toe-raise without 23 difficulty. (AR 498.) Dr. Sobol repeated his diagnosis from his 24 December 21, 2009 report but added a notation that Plaintiff had 25 a recent history of flare-up now returned to its pre flare-up 26 levels. (AR 498.) Dr. Sobol further noted that Plaintiff s 27 low-back symptoms had essentially returned to their pre flare-up 28 levels in direct response to a home exercise program, including 15 1 use of a home electrical muscle stimulation unit along with 2 prescription medication, and that his low-back condition had 3 re-stablized without evidence of new and further disability. 7 4 (AR 499.) Dr. Sobol concluded that his opinions relative to the 5 issues of disability ha[d] not changed since his Permanent and 6 Stationary Evaluation Report dated December 21, 2009. 7 (Id.) On November 2, 2010, Dr. Sioson-Ayala completed a form 8 certifying that she had diagnosed Plaintiff with fibromyalgia 9 syndrome. (AR 238.) The form does not indicate that she 10 conducted an examination that day, nor does it include any 11 findings or diagnostic criteria that support the diagnosis. 12 (Id.) Dr. Sioson-Ayala stated on the form that Plaintiff had 13 been under her care from 11-2-10, the same day as the 14 diagnosis; before that, she apparently last treated Plaintiff on 15 March 18, 2010. (AR 561.) 16 On November 17, 2010, Dr. Sobol completed a Fibromyalgia 17 Residual Functional Capacity Questionnaire. (AR 582-85.) He 18 opined that Plaintiff met the American Rheumatological criteria 19 for fibromyalgia and stated that Plaintiff had multiple tender 20 points, nonrestorative sleep, chronic fatigue, morning stiffness, 21 muscle weakness, frequent severe headaches, numbness and 22 tingling, anxiety, and depression. (AR 582.) Dr. Sobol stated 23 that Plaintiff s other diagnosed impairments included anxiety, 24 depression, sleep disorder, lumbar spine injury, and leg injury. 25 26 7 Plaintiff apparently did not receive the chiropractic 27 care that Dr. Woods recommended. (See AR 496 (noting that 28 recommended chiropractic therapy was not certified by the insurance carrier ).) 16 1 (AR 582.) He noted that Plaintiff had pain in his bilateral 2 lumbosacral spine and bilateral legs, which would frequently 3 interfere with his attention and concentration. (AR 583.) Dr. 4 Sobol also found that Plaintiff had a slight limitation in his 5 ability to deal with work stress. 6 (AR 583.) Dr. Sobol opined that Plaintiff s impairments resulted in 7 significant limitations. Specifically, Plaintiff could walk only 8 one to two blocks without rest or severe pain, sit continuously 9 for only 30 minutes at a time, stand continuously for only 20 10 minutes at a time, sit for at least six hours in an eight-hour 11 workday, and stand or walk for a total of less than two hours in 12 an eight-hour workday. (AR 583-84.) He also found that 13 Plaintiff would need to walk for five minutes every 15 minutes of 14 an eight-hour workday; shift at will from sitting, standing, or 15 walking; and take frequent 10-minute breaks. (AR 583-84.) 16 Plaintiff could occasionally lift and carry less than 10 pounds 17 but never 10 pounds or more. (AR 585.) Dr. Sobol also believed 18 that Plaintiff would be absent from work about twice a month as a 19 result of his impairment or treatment. (AR 585.) At the time 20 Dr. Sobol filled out the fibromyalgia questionnaire, in November 21 2010, he had not seen Plaintiff since July of that year and 22 apparently did not base his findings in the questionnaire on a 23 new examination of Plaintiff. (AR 494-501.) 24 VI. DISCUSSION 25 Plaintiff alleges that the ALJ erred in (1) determining that 26 he retained the RFC to perform light work; (2) failing to 27 properly assess whether his condition met or equaled a Listing; 28 (3) failing to properly consider his subjective symptom 17 1 testimony; and (4) determining that he could perform a 2 significant number of jobs.8 (J. Stip. at 9.) 3 A. 4 Plaintiff contends that the ALJ erred in determining that he The ALJ Did Not Err in Determining Plaintiff s RFC 5 retained the RFC to perform light work. 6 34.) (J. Stip. at 19-29, 33- Specifically, Plaintiff argues that the ALJ erred by (1) 7 rejecting the opinions of his treating physicians, Drs. Sobol and 8 Curtis (J. Stip. at 23-28), and (2) isolating the effect of 9 [Plaintiff s] physical impairment from the effects of his mental 10 impairment (J. Stip. at 29). 11 12 1. Applicable law A district court must uphold an ALJ s RFC assessment when 13 the ALJ has applied the proper legal standard and substantial 14 evidence in the record as a whole supports the decision. 15 v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). Bayliss The ALJ must 16 have considered all the medical evidence in the record and 17 explain in [his or her] decision the weight given to . . . [the] 18 opinions from treating sources, nontreating sources, and other 19 nonexamining sources. 20 416.927(e)(2)(ii). 20 C.F.R. §§ 404.1527(e)(2)(ii), In making an RFC determination, the ALJ may 21 consider those limitations for which there is support in the 22 record and need not consider properly rejected evidence or 23 subjective complaints. See Batson v. Comm r of the Soc. Sec. 24 Admin., 359 F.3d 1190, 1197 98 (9th Cir. 2004) ( ALJ was not 25 26 8 The Court has rearranged the order in which it 27 addresses Plaintiff s claims from that followed by the parties, 28 in order to avoid repetition and for other reasons. 18 1 required to incorporate evidence from the opinions of 2 [plaintiff s] treating physicians, which were permissibly 3 discounted ); Bayliss, 427 F.3d at 1217 (upholding ALJ s RFC 4 determination because the ALJ took into account those 5 limitations for which there was record support that did not 6 depend on [claimant s] subjective complaints ). 7 An ALJ does not need to adopt any specific medical source s 8 RFC opinion as his or her own. Vertigan v. Halter, 260 F.3d 9 1044, 1049 (9th Cir. 2001) ( It is clear that it is the 10 responsibility of the ALJ, not the claimant s physician, to 11 determine residual functional capacity. ); 20 C.F.R. 12 §§ 404.1546(c), 416.946(c) ( [T]he administrative law judge . . . 13 is responsible for assessing your residual functional 14 capacity. ). The ALJ need not accept the opinion of any 15 physician, including a treating physician, if that opinion is 16 brief, conclusory, and inadequately supported by clinical 17 findings. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 18 2002); accord Batson, 359 F.3d at 1195. The Court must consider 19 the ALJ s decision in the context of the entire record as a 20 whole, and if the evidence is susceptible to more than one 21 rational interpretation, the ALJ s decision should be upheld. 22 Ryan v. Comm r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) 23 (internal quotation marks omitted). 24 25 2. Discussion The ALJ found that Plaintiff retained the RFC to perform 26 light work except that [Plaintiff] can perform postural 27 activities occasionally, cannot climb ladders, ropes, or 28 scaffolds, cannot work around heights and hazards, and is limited 19 1 to simple to moderately complex work. (AR 13.) He further 2 stated that in making that RFC finding, he considered all 3 symptoms and the extent to which these symptoms can reasonably be 4 accepted as consistent with the objective medical evidence and 5 other evidence and also considered opinion evidence. (Id.) 6 Plaintiff argues that the ALJ s RFC finding was improper because 7 it did not reflect the findings of his treating doctors, Drs. 8 Sobol and Curtis. 9 (J. Stip. at 27.) Three types of physicians may offer opinions in social 10 security cases: (1) those who treat the claimant (treating 11 physicians); (2) those who examine but do not treat the claimant 12 (examining physicians); and (3) those who neither examine nor 13 treat the claimant (non-examining physicians). 14 at 830. Lester, 81 F.3d The opinions of treating physicians are generally 15 afforded more weight than those of nontreating physicians because 16 treating physicians are employed to cure and have a greater 17 opportunity to know and observe the claimant. 18 80 F.3d 1273, 1285 (9th Cir. 1996). Smolen v. Chater, The weight given a treating 19 physician s opinion depends on whether it was supported by 20 sufficient medical data and was consistent with other evidence in 21 the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). If a 22 treating physician s opinion was well supported by medically 23 acceptable clinical and laboratory diagnostic techniques and was 24 not inconsistent with other substantial evidence from the record, 25 it should be given controlling weight and should be rejected only 26 for clear and convincing reasons. 27 §§ 404.1527(c)(2), 416.927(c)(2). Lester, 81 F.3d at 830; When a treating physician s 28 opinion conflicts with other medical evidence or was not 20 1 supported by clinical or laboratory findings, the ALJ must 2 provide only specific and legitimate reasons for discounting 3 that doctor s opinion. 4 Cir. 2007). Orn v. Astrue, 495 F.3d 625, 632 (9th Factors relevant to the evaluation of a treating 5 physician s opinion include the [l]ength of the treatment 6 relationship and the frequency of examination as well as the 7 [n]ature and extent of the treatment relationship. 8 §§ 404.1527(c)(2)(i)-(ii), 416.927(c)(2)(i)-(ii). 9 The ALJ gave specific and legitimate reasons for discounting 10 Dr. Sobol s November 2010 fibromyalgia questionnaire, which 11 conflicted with the opinions of Drs. Siciarz-Lambert and Schwartz 12 as well as Dr. Sobol s own treatment notes and previous 13 assessments. See Orn, 495 F.3d at 632. In the questionnaire, 14 Dr. Sobol stated that Plaintiff s impairments resulted in, among 15 other things, lumbar spine and bilateral leg pain, muscle 16 weakness, frequent severe headaches, numbness, and tingling. 17 582-83.) (AR Dr. Sobol found that Plaintiff could walk only one or 18 two blocks without rest or severe pain, sit for only 30 minutes 19 at a time, stand for only 20 minutes at a time, and stand or walk 20 for less than two hours in an eight-hour day; Plaintiff also 21 needed to walk for five of every 15 minutes in an eight-hour 22 workday and take frequent unscheduled 10-minute breaks. 23 584.) Dr. Sobol also opined that Plaintiff could occasionally 24 lift less than 10 pounds but never more than that. 25 (AR (AR 585.) As the ALJ found (AR 16), Dr. Sobol s fibromyalgia 26 questionnaire was not well supported by the minimal objective 27 findings in his previous evaluations or the findings of 28 examining physician Dr. Siciarz-Lambert. 21 (AR 16.) Dr. Sobol s 1 earlier reports made little or no mention of fibromyalgia, 2 instead attributing Plaintiff s symptoms to a work-related back 3 impairment and resulting gastrointestinal problems and 4 depression. (See, e.g., AR 419-36, 494-501.) Dr. Sobol noted 5 muscle weakness in the questionnaire (AR 582-83), but that is not 6 a symptom of fibromyalgia. See Dox et al., supra, at 55. In any 7 event, only four months earlier, in July 2010, Dr. Sobol had 8 found that Plaintiff had normal muscle bulk and tone with no 9 atrophy, spasticity, or motor weakness. (AR 497-98.) At that 10 time, Dr. Sobol also affirmed his December 2009 conclusion that 11 Plaintiff s only work restrictions were to be off his feet for 12 one hour in an eight-hour workday and to avoid heavy lifting, 13 repetitive bending and stooping, and very prolonged weight 14 bearing (AR 434, 499), which was largely consistent with Dr. 15 Siciarz-Lambert s finding that Plaintiff could lift and carry 50 16 pounds occasionally and 25 pounds frequently (AR 346) and Dr. 17 Schwartz s finding that Plaintiff could lift and carry 50 pounds 18 occasionally and 25 pounds frequently and could stand and/or walk 19 for six hours in an eight-hour workday (AR 371). Contrary to his 20 previous findings and those of Drs. Siciarz-Lambert and Schwartz, 21 Dr. Sobol listed very significant limitations in the fibromyalgia 22 questionnaire, stating, for example, that Plaintiff could not 23 walk for more than one or two blocks, could never lift ten pounds 24 or more, and had to walk for five of every 15 minutes of an 25 eight-hour workday. (AR 584-85.) Dr. Sobol s fibromyalgia 26 questionnaire could therefore be rejected because it was 27 inconsistent with the substantial evidence of record and 28 unsupported by his own treatment notes. 22 See Connett v. Barnhart, 1 340 F.3d 871, 875 (9th Cir. 2003) (treating doctor s opinion 2 properly rejected when treatment notes provide no basis for the 3 functional restrictions he opined should be imposed on 4 [claimant] ); Valentine v. Comm r, Soc. Sec. Admin., 574 F.3d 5 685, 692-93 (9th Cir. 2009) (contradiction between treating 6 physician s opinion and his treatment notes constitutes specific 7 and legitimate reason for rejecting treating physician s 8 opinion); Batson, 359 F.3d at 1195 ( an ALJ may discredit 9 treating physicians opinions that are conclusory, brief, and 10 unsupported by the record as a whole . . . or by objective 11 medical findings ); Rollins v. Massanari, 261 F.3d 853, 856 (9th 12 Cir. 2001) (ALJ permissibly rejected treating physician s opinion 13 when opinion was contradicted by or inconsistent with the 14 treatment reports); SSR 12-2P, 2012 WL 3104869, at *2 (in 15 evaluating whether person has medically determinable impairment 16 of fibromyalgia, ALJ will review the physician s treatment notes 17 to see if they are consistent with the diagnosis of 18 [fibromyalgia] ). 19 Moreover, nothing indicates that Dr. Sobol reviewed 20 Plaintiff s medical history or conducted a physical exam before 21 diagnosing fibromyalgia, nor did he make sufficient specific 22 findings to support that diagnosis, such as a history of 23 widespread pain, pain on palpation of at least 11 of 18 tender 24 points, or the exclusion of other disorders that could have 25 caused Plaintiff s symptoms. See Dox et al., supra, at 55. 26 Thus, Dr. Sobol s diagnosis of fibromyalgia is itself not well 27 supported. See SSR 12-2P, 2012 WL 3104869, at *2-3 (noting that 28 ALJ cannot rely upon the physician s [fibromyalgia] diagnosis 23 1 alone and that medical evidence must document that the 2 physician reviewed the person s medical history and conducted a 3 physical exam and that person displayed specific diagnostic 4 criteria). 5 In according little weight to Dr. Sobol s findings in the 6 fibromyalgia questionnaire, the ALJ also noted Plaintiff s 7 fairly normal activities of daily living. (AR 16.) Indeed, 8 Brawer s psychological evaluation, which the ALJ cited (id.), 9 noted that Plaintiff was able to dress and bathe himself, do 10 light household chores, cook, shop, run errands, walk outside, 11 watch television, converse with friends and family, read, drive 12 alone, and get along well with people. (AR 351.) Plaintiff also 13 reported that he helped with housecleaning, went to the post 14 office and grocery store without assistance, and drove his own 15 car, among other things. (AR 53, 189-90.) Dr. Sobol s finding 16 that Plaintiff was severely restricted in his activities for 17 example, that he was unable to walk for more than one to two 18 blocks without resting or experiencing severe pain, could sit for 19 only 30 minutes and stand for only 20 minutes at a time, and 20 could only occasionally lift less than 10 pounds and never 10 21 pounds or more was inconsistent with Plaintiff s actual 22 activities. Dr. Sobol s findings were even inconsistent with 23 Plaintiff s own testimony at the November 3, 2010 hearing: he 24 stated that he could walk 15 minutes before having to stop, stand 25 for one hour, sit for two hours at a time, and lift about 15 26 pounds. (AR 49.) 27 that basis as well. Dr. Sobol s findings could be discounted on See Rollins, 261 F.3d at 856 (ALJ s finding 28 that doctor s restrictions appear to be inconsistent with the 24 1 level of activity that [plaintiff] engaged in by maintaining a 2 household and raising two young children, with no significant 3 assistance from her ex husband, was specific and legitimate 4 reason for discounting opinion); Morgan v. Comm r of Soc. Sec. 5 Admin., 169 F.3d 595, 601-02 (9th Cir. 1999) (ALJ permissibly 6 rejected treating physician s opinion when it conflicted with 7 plaintiff s activities); see also Fisher v. Astrue, 429 F. App x 8 649, 652 (9th Cir. 2011) (conflict between doctor s opinion and 9 claimant s daily activities was specific and legitimate reason to 10 discount opinion). 11 Moreover, the ALJ was entitled to credit the opinion of Dr. 12 Siciarz-Lambert instead of Dr. Sobol because that opinion was 13 supported by independent clinical findings and thus constituted 14 substantial evidence upon which the ALJ could properly rely. See 15 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); 16 Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). Dr. 17 Siciarz-Lambert performed a physical exam of Plaintiff on August 18 7, 2009, noting, among other things, normal ranges of movement in 19 the upper and lower extremities; negative straight-leg testing 20 bilaterally; normal motor strength, tone, and bulk; normal 21 reflexes; normal gait; and intact sense to light touch in all 22 upper and lower extremities. (AR 344-45.) She found that 23 Plaintiff had positive tender-point testing on direct examination 24 but no tender-point testing at all on discreet testing, and that 25 a radiograph of his lumbar spine conducted that same day 26 displayed no significant pathology. (AR 344-46.) Dr. Siciarz- 27 Lambert concluded that Plaintiff was limited to pushing, pulling, 28 lifting, and carrying 50 pounds occasionally and 25 pounds 25 1 frequently. (AR 346.) Indeed, as previously noted, Dr. Siciarz- 2 Lambert s conclusion was generally consistent with Dr. Sobol s 3 most recent actual examination assessments, which stated that 4 Plaintiff s work restrictions mandated only that he be off his 5 feet for one hour of an eight-hour workday and avoid heavy 6 lifting, repetitive bending and stooping, and very prolonged 7 weight bearing. (AR 434, 499.) In any event, any conflict in 8 the properly supported medical-opinion evidence was the sole 9 province of the ALJ to resolve. 10 See Andrews, 53 F.3d at 1041. Plaintiff does not specifically address the ALJ s reasons 11 for according less weight to Dr. Sobol s fibromyalgia 12 questionnaire; instead, he merely notes that Dr. Sobol had been 13 Plaintiff s treating physician since 2001, summarizes his 14 findings, and concludes that the ALJ failed to properly weigh 15 Dr. Sobol s statement and instead totally disregard[ed] it. 16 (J. Stip. at 21-26.) As discussed above, however, the ALJ in 17 fact properly considered Dr. Sobol s fibromyalgia questionnaire 18 and gave specific and legitimate reasons, supported by 19 substantial evidence, for rejecting it. 20 The ALJ also properly assessed Dr. Curtis s opinion, along 21 with the other medical records, when determining that Plaintiff 22 retained the mental capacity to perform simple to moderately 23 complex work. The ALJ noted Dr. Curtis s diagnoses of depressive 24 disorder not otherwise specified with anxiety and psychological 25 factors affecting medical condition, and his assignment of a GAF 26 score of 55, which indicated moderate psychological impairment. 27 (AR 15, 327.) The ALJ further noted Dr. Curtis s May 2010 28 notation that Plaintiff had visible anxiety and depressed 26 1 expressions. (AR 15, 474.) The ALJ s limitation to simple to 2 moderately complex work is largely consistent with Dr. Curtis s 3 findings of only moderate mental limitations. Indeed, Dr. Curtis 4 specifically noted that Plaintiff s moderate impairments were 5 compatible with some but not all useful functioning in the 6 areas of adaptation and concentration, persistence and pace, and 7 that Plaintiff would be able to tolerate the stresses common to 8 the work environment including maintaining attendance, making 9 decisions, doing scheduling, completing tasks and interacting 10 appropriately with supervisors and peers. 11 (AR 332.) To the extent the RFC finding was inconsistent with Dr. 12 Curtis s opinion, moreover, the ALJ properly relied on the 13 opinions of Dr. Mallare and Brawer. (AR 16.) The ALJ was 14 entitled to credit the opinions of Dr. Mallare and Brawer instead 15 of Dr. Curtis because those opinions were supported by 16 independent clinical findings and thus constituted substantial 17 evidence upon which the ALJ could properly rely. 18 242 F.3d at 1149; Andrews, 53 F.3d at 1041. See Tonapetyan, Brawer examined 19 Plaintiff and conducted several psychological tests, including 20 the Comprehensive Test of Nonverbal Intelligence; Memory for 21 Designs Test; Trails A - Trails B; Bender Gestalt Visual Motor 22 Test, Second Edition; and Test of Memory Malingering. 23 55.) (AR 349- Based on the exam and test results, Brawer found that 24 Plaintiff could perform simple, repetitive tasks and might be 25 able to perform some detailed, varied, or complex nonverbal 26 tasks. (AR 354.) He was also able to follow a routine, organize 27 himself for basic tasks, and sustain cooperative relationships 28 with coworkers and supervisors. (Id.) 27 Dr. Mallare relied on 1 Brawer s independent findings to conclude that Plaintiff had mild 2 restriction of activities of daily living, mild difficulties in 3 maintaining social functioning, and mild difficulties in 4 maintaining concentration, persistence, or pace. (AR 367, 369.) 5 Dr. Mallare also found insufficient evidence of episodes of 6 decompensation. (AR 367.) Dr. Mallare concluded that Plaintiff 7 had adequate mental functioning to perform one- to two- step 8 instructions and some detailed instructions; he could also 9 interact appropriately with others and adapt to simple workplace 10 changes. (AR 358.) As the ALJ noted (AR 16), Dr. Mallare s 11 mental-RFC finding was consistent with Plaintiff s statements to 12 Brawer that he could dress and bathe himself without assistance, 13 do light household chores and cooking, go shopping, run errands, 14 walk, drive alone, watch television, converse with friends and 15 family, and read (AR 351; see also AR 52-53 (Plaintiff s 16 testimony that daily activities included housecleaning, meal 17 preparation, going to store, buying and reading paper, paying 18 bills, picking up child from school, and helping his children 19 after school); 189-90 (pain questionnaire stating that daily 20 activities included light housekeeping, errands, and driving 21 car)). Indeed, Plaintiff reported to Brawer that he gets along 22 well with the people he comes in contact with on a daily basis 23 (AR 351), which indicates, consistent with Dr. Curtis s and 24 Brawer s findings (AR 332, 354), that Plaintiff would be able to 25 interact with supervisors and coworkers. Thus, the ALJ did not 26 err in relying on Brawer s and Dr. Mallare s opinions in 27 formulating his RFC assessment because they were largely 28 consistent with each other and with other independent evidence in 28 1 the record, including Plaintiff s daily activities and the 2 results of psychological testing. See Tonapetyan, 242 F.3d at 3 1149 (opinion of nonexamining medical expert may constitute 4 substantial evidence when it is consistent with other independent 5 evidence in the record ). In any event, any conflict in the 6 properly supported medical-opinion evidence was the sole province 7 of the ALJ to resolve. 8 See Andrews, 53 F.3d at 1041. Finally, Plaintiff argues that the ALJ erred in formulating 9 Plaintiff s RFC because he fail[ed] to support that he properly 10 considered [Plaintiff s] combination of impairments as described 11 by Drs. Sobol and Curtis. (J. Stip. at 28-29.) However, as 12 discussed above, the ALJ properly considered Drs. Sobol s and 13 Curtis s opinions when formulating Plaintiff s RFC. Moreover, 14 the ALJ considered Plaintiff s restrictions resulting from both 15 his physical and mental limitations, as evidenced by the 16 limitation to simple to moderately complex work. (AR 13.) 17 Plaintiff, moreover, fails to point to any specific, credited 18 limitation resulting from his combined impairments that the ALJ 19 failed to include in the RFC. Reversal is therefore not 20 warranted on this basis. 21 22 23 B. The ALJ Did Not Err in Determining that Plaintiff s Condition Did Not Meet or Equal a Listing Plaintiff contends that his disc disease, fibromyalgia, 24 the effects of medications, the chronic pain syndrome, and the 25 mental limitations combined met the criteria of Listing 1.04. 26 (J. Stip. at 14.) Plaintiff further argues that the ALJ erred in 27 determining that he did not meet a Listing because the ALJ 28 failed to identify which Listing he was considering and did not 29 1 provide any explanation as to how he reached his conclusions. 2 (J. Stip. at 10.) 3 4 1. Applicable law At step three of the sequential disability-evaluation 5 process, the ALJ must evaluate the claimant s impairments to see 6 if they meet or medically equal any of the impairments listed in 7 the Listings. See 20 C.F.R §§ 404.1520(d), 416.920(d); Tackett 8 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). The claimant has 9 the initial burden of proving that an impairment meets or equals 10 a Listing. See Sullivan v. Zebley, 493 U.S. 521, 530-33, 110 S. 11 Ct. 885, 891-92, 107 L. Ed. 2d 967 (1990). To meet a listed 12 impairment, a claimant must establish that he or she meets each 13 characteristic of a listed impairment relevant to his or her 14 claim. Tackett, 180 F.3d at 1099. To equal a listed 15 impairment, a claimant must establish symptoms, signs and 16 laboratory findings at least equal in severity and duration to 17 the characteristics of a relevant listed impairment, or, if a 18 claimant s impairment is not listed, then to the listed 19 impairment most like the claimant s impairment. 20 20 C.F.R. § 404.1526). Id. (citing Medical equivalence, moreover, must be 21 based on medical findings ; [a] generalized assertion of 22 functional problems is not enough to establish disability at step 23 three. 24 Id. at 1100 (citing 20 C.F.R. § 404.1526). An ALJ must evaluate the relevant evidence before 25 concluding that a claimant s impairments do not meet or equal a 26 listed impairment. 27 2001). Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. The ALJ, however, need not state why a claimant failed 28 to satisfy every different section of the listing of 30 1 impairments. Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th 2 Cir. 1990) (finding ALJ did not err in failing to state what 3 evidence supported conclusion that, or discuss why, claimant s 4 impairments did not satisfy a Listing). Moreover, the ALJ is 5 not required to discuss the combined effects of a claimant s 6 impairments or compare them to any listing in an equivalency 7 determination, unless the claimant presents evidence in an effort 8 to establish equivalence. Burch v. Barnhart, 400 F.3d 676, 683 9 (9th Cir. 2005) (citing Lewis, 236 F.3d at 514). 10 An ALJ s decision that a plaintiff did not meet a Listing 11 must be upheld if it was supported by substantial evidence. 12 See Warre v. Comm r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th 13 Cir. 2006). Substantial evidence is more than a mere scintilla 14 but less than a preponderance; it is such relevant evidence as a 15 reasonable mind might accept as adequate to support a 16 conclusion. 17 1997). Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. When evidence was susceptible to more than one rational 18 interpretation, the Court must uphold the ALJ s conclusion as 19 long as substantial evidence existed to support it. 20 21 2. Id. Discussion Plaintiff argues that his back condition, whether considered 22 alone or in combination with his other impairments, meets the 23 general requirements of Listing 1.04. (J. Stip. at 9-14.) A 24 claimant can meet Listing 1.04 if he has a disorder of the spine, 25 such as herniated nucleus pulposus, spinal arachnoiditis,9 26 27 28 9 Arachnoiditis describes a pain disorder caused by the inflammation of the arachnoid, one of the membranes that surround and protect the nerves of the spinal cord. NINDS Arachnoiditis 31 1 spinal stenosis, osteoarthritis, degenerative disc disease, facet 2 arthritis, [or] vertebral fracture, that results in compromise 3 of the nerve root or spinal cord and either: 4 A. Evidence of nerve root compression characterized by 5 neuro-anatomic distribution of pain, limitation of motion 6 of the spine, motor loss (atrophy with associated muscle 7 weakness or muscle weakness) accompanied by sensory or 8 reflex loss and, if there is involvement of the lower 9 back, positive straight-leg raising test (sitting and 10 supine); 11 or 12 B. Spinal arachnoiditis, confirmed by an operative note 13 or pathology report of tissue biopsy, or by appropriate 14 medically 15 burning or painful dysesthesia, resulting in the need for 16 changes in position or posture more than once every 2 17 hours; 18 or 19 C. 20 pseudoclaudication, 21 appropriate medically acceptable imaging, manifested by 22 chronic nonradicular pain and weakness, and resulting in 23 inability acceptable Lumbar to imaging, spinal manifested stenosis established ambulate by severe resulting by effectively, findings as defined in on in 24 25 26 Information Page, Nat l Inst. of Neurological Disorders and 27 Stroke, Nat l Inst. of Health, available at http://www.ninds.nih. 28 gov/disorders/arachnoiditis/arachnoiditis.htm (last accessed Nov. 18, 2012). 32 1 1.00B2b.10 2 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04. To meet a Listing, 3 moreover, a claimant s impairments must meet all of the 4 specified medical criteria. Zebley, 493 U.S. at 530. An 5 impairment that manifests only some of those criteria, no matter 6 how severely, does not qualify. 7 Id. Although Plaintiff summarizes reports from several doctors, 8 he does not specifically explain how their findings correspond 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 10 Section 1.00B2b provides the following description concerning What [SSA] Mean[s] by Inability to Ambulate Effectively : (1) Definition. Inability to ambulate effectively means an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously with the individual s ability to independently initiate, sustain, or complete activities. Ineffective ambulation is defined generally as having insufficient lower extremity functioning (see 1.00J) to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities. . . . (2) To ambulate effectively, individuals must be capable of sustaining a reasonable walking pace over a sufficient distance to be able to carry out activities of daily living. They must have the ability to travel without companion assistance to and from a place of employment or school. Therefore, examples of ineffective ambulation include, but are not limited to, the inability to walk without the use of a walker, two crutches or two canes, the inability to walk a block at a reasonable pace on rough or uneven surfaces, the inability to use standard public transportation, the inability to carry out routine ambulatory activities, such as shopping and banking, and the inability to climb a few steps at a reasonable pace with the use of a single hand rail. The ability to walk independently about one s home without the use of assistive devices does not, in and of itself, constitute effective ambulation. 28 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00B2b. 33 1 with the requirements of Listing 1.04A, 1.04B, or 1.04C (J. Stip. 2 at 9-14); in fact, the cited evidence fails to show that all of 3 their criteria were satisfied. At minimum, Listing 1.04B 4 requires a diagnosis of spinal arachnoiditis, which must be 5 confirmed by an operative note or pathology report of tissue 6 biopsy, or by appropriate medically acceptable imaging ; but 7 Plaintiff has failed to establish that any doctor diagnosed him 8 with that condition. 9 § 1.04B. See 20 C.F.R. Part 404, Subpart P, App. 1, Plaintiff has also failed to show that he has an 10 inability to ambulate effectively as required by Listing 1.04C; 11 on the contrary, he was often noted to have a normal gait or, at 12 most, only a slight limp (see, e.g., AR 393 (June 2009, 13 ambulates with slight limp ), 426 (December 2009, ambulates 14 without appreciable limp or antalgia ) 498 (July 2010, normal 15 gait with no evidence of limp or antalgia )), he did not use a 16 cane or other assistive device (AR 49), and he was able to shop 17 and run errands without assistance (AR 53, 189-90). 18 Plaintiff has also failed to establish that his back 19 impairment met the criteria of Listing 1.04A. Plaintiff cites 20 Dr. Sobol s June 24, 2009 findings of decreased sensation to 21 pinprick and light touch (J. Stip. at 13; AR 393), but in the 22 same report, Dr. Sobol also found that Plaintiff had normal 23 muscle bulk and tone, no atrophy, spasticity, or motor weakness, 24 and normal reflexes (AR 393). Dr. Sobol s December 21, 2009 25 report, which Plaintiff also summarizes, similarly notes that 26 Plaintiff had decreased sensation to pinprick and light touch in 27 his lower extremities but no other neurological symptoms and no 28 34 1 motor or reflex deficits.11 (AR 426.) According to those 2 findings, therefore, Plaintiff s back condition did not result in 3 the neuro-anatomic distribution of pain or motor loss 4 required by Listing 1.04A. 5 App. 1, § 1.04A. See 20 C.F.R. Part 404, Subpart P, Thus, Plaintiff has not established that he 6 meets all of the specified medical criteria for Listing 1.04A, 7 1.04B, or 1.04C. 8 See Zebley, 493 U.S. at 530. Plaintiff also asserts that his impairments, when considered 9 together, equaled Listing 1.04. (J. Stip. at 13-14.) In so 10 arguing, Plaintiff relies heavily on Dr. Sobol s November 2010 11 fibromyalgia questionnaire, but as discussed above, the ALJ 12 provided specific and legitimate reasons, supported by 13 substantial evidence, for rejecting that assessment. Plaintiff 14 also summarizes other record evidence, such as Dr. Curtis s 15 opinion, but he fails to explain how any of it establishes that 16 his combination of impairments was at least equal in severity 17 and duration to the characteristics of Listing 1.04, and indeed, 18 that evidence fails to support such a finding. See Tackett, 180 19 F.3d at 1099; see also 20 C.F.R. §§ 404.1529(d)(3) (when 20 considering equivalence, ALJ considers whether your symptoms, 21 signs, and laboratory findings are at least equal in severity to 22 the listed criteria and will not substitute [claimant s] 23 allegations of pain or other symptoms for a missing or deficient 24 sign or laboratory finding to raise the severity of [his or her] 25 impairment(s) to that of a listed impairment ), 416.929(d)(3) 26 (same). As such, Plaintiff has failed to establish that his 27 11 Plaintiff mistakenly states that 28 December 21, 2010, not 2009. (J. Stip. at this report was dated 11.) 35 1 combination of impairments equaled a Listing. 2 Plaintiff also argues that the ALJ erred at step three by 3 failing to identify which Listing he was considering or explain 4 why he concluded that Plaintiff s impairments did not meet or 5 equal a Listing. (J. Stip. at 10.) Although it is true that the 6 ALJ found only that Plaintiff does not have an impairment or 7 combination of impairments that meets or medically equals one of 8 the listed impairments in 20 CFR Part 404, Subpart P, Appendix 9 1, without specifically stating what evidence supported his 10 conclusion (AR 13), elsewhere in the decision he dedicated four 11 single-spaced pages to summarizing and analyzing the medical 12 evidence and Plaintiff s testimony (AR 13-17). Because those 13 findings were sufficient to support the ALJ s step-three 14 conclusion that Plaintiff s impairments did not meet or equal a 15 Listing, he did not err. See Gonzalez, 914 F.2d at 1201 16 (rejecting claimant s argument that ALJ erred by failing to 17 discuss why he did not satisfy Listing because four-page 18 evaluation of the evidence was an adequate statement of the 19 foundations on which the ultimate factual conclusions are based 20 (internal quotation marks omitted)); see also Lewis, 236 F.3d at 21 513 (ALJ must discuss and evaluate evidence that supports step22 three conclusion but need not do so under specific heading). 23 Moreover, the ALJ is not required to discuss the combined 24 effects of a claimant s impairments or compare them to any 25 listing in an equivalency determination, unless the claimant 26 presents evidence in an effort to establish equivalence. 27 400 F.3d at 683 (citing Lewis, 236 F.3d at 514). Here, Plaintiff 28 has failed to point to any credited evidence of functional 36 Burch, 1 limitations that would have affected the ALJ s analysis, nor has 2 he offered any plausible theory of how the combination of his 3 impairments equaled a Listing. The ALJ did not commit reversible 4 error by failing to make additional findings at step three.12 5 C. 6 7 The ALJ Did Not Improperly Discount Plaintiff s Subjective Symptom Testimony Plaintiff next argues that the ALJ failed to properly 8 consider his subjective symptom testimony. 9 42-44.) (J. Stip. at 34-39, Reversal is not warranted on this basis, however, 10 because the ALJ made specific findings as to Plaintiff s 11 credibility that were consistent with the medical evidence of 12 record. 13 14 1. Applicable law An ALJ s assessment of pain severity and claimant 15 credibility is entitled to great weight. See Weetman v. 16 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 17 F.2d 528, 531 (9th Cir. 1986). When the ALJ finds a claimant s 18 subjective complaints not credible, the ALJ must make specific 19 findings that support the conclusion. 20 F.3d 1228, 1234 (9th Cir. 2010). See Berry v. Astrue, 622 Absent affirmative evidence of 21 malingering, the ALJ must give clear and convincing reasons for 22 rejecting the claimant s testimony. Lester, 81 F.3d at 834. At 23 the same time, the ALJ is not required to believe every 24 allegation of disabling pain, or else disability benefits would 25 26 27 28 12 Because the ALJ did not err in determining that Plaintiff s impairments did not meet or equal a Listing, the Court has not addressed the Commissioner s argument that Plaintiff waived this issue by not raising it before the SSA. (See J. Stip. at 16.) 37 1 be available for the asking, a result plainly contrary to 42 2 U.S.C. § 423(d)(5)(A). Molina v. Astrue, 674 F.3d 1104, 1112 3 (9th Cir. 2012) (internal quotation marks and citation omitted). 4 If the ALJ s credibility finding was supported by substantial 5 evidence in the record, the reviewing court may not engage in 6 second-guessing. 7 8 2. Thomas, 278 F.3d at 959. Relevant facts In June 2009, Plaintiff completed an SSA pain questionnaire. 9 (AR 188-90.) Plaintiff stated that he had pain in his shoulders, 10 legs, and neck, which would spread to his toes, lower back, and 11 feet. (AR 188.) The pain occurred three to four times a week, 12 sometimes more often, and lasted four to six hours a day. (Id.) 13 Plaintiff took pain medication, which sometimes helped, used an 14 electrical unit device and cold and hot packs, and attended 15 physical therapy. (AR 189.) No surgery was scheduled. (Id.) 16 His usual daily activities included attending physical therapy 17 three times a week, light housekeeping, errands such as going to 18 the post office or grocery store without assistance, and driving 19 his own car. (AR 189-90.) Plaintiff said he could walk for two 20 blocks outside his home, stand for 15 minutes at a time, and sit 21 for one hour at a time. 22 (AR 190.) At the hearing, Plaintiff testified that he had been 23 experiencing a lot of muscle pain. (AR 50.) He had been treated 24 with medication and physical therapy but had told his doctor that 25 he did not want pain injections or surgery. (AR 48.) Plaintiff 26 testified that he could walk 15 minutes before having to stop, 27 stand for one hour, sit for two hours at a time, and lift about 28 15 pounds. (AR 49.) Plaintiff did not need a cane or other 38 1 assistive device to walk. (Id.) During the day, Plaintiff 2 helped his wife with housecleaning chores, prepared his 3 children s meals, went to the store, bought and read the 4 newspaper, went to the post office, and paid bills. (AR 53.) 5 Plaintiff also picked up his youngest child from school, which 6 was about two miles from the house, and helped his two children 7 when they came home from school. 8 9 3. (AR 52.) Analysis The ALJ found that Plaintiff s statements concerning the 10 intensity, persistence and limiting effects of [his] symptoms are 11 not credible to the extent they are inconsistent with the [RFC] 12 assessment. (AR 13-14.) Reversal is not warranted based on the 13 ALJ s alleged failure to make proper credibility findings or 14 properly consider Plaintiff s subjective symptoms. 15 The ALJ made specific, convincing findings in support of his 16 adverse credibility determination. He noted that Dr. Sobol s 17 recent evaluations showed relatively stable symptoms controlled 18 with pain medication and home exercise and that Plaintiff had 19 not had surgery for his back condition. (AR 17.) The ALJ also 20 noted that Plaintiff s EMG and nerve conduction velocity testing 21 was normal. (Id.) Although Plaintiff alleged fibromyalgia 22 symptoms, the ALJ noted that Dr. Siciarz-Lambert had found a 23 discrepancy between discreet and direct tender-point testing for 24 fibromyalgia. (Id.) Indeed, Dr. Siciarz-Lambert concluded that 25 she could not endorse a fibromyalgia diagnosis because of that 26 discrepancy and because Plaintiff s history was not truly 27 consistent with what one would expect in an individual with 28 fibromyalgia. (AR 346.) The ALJ also noted that Social 39 1 Security staff did not notice that [Plaintiff] had any difficulty 2 with his mental and physical abilities (AR 17) and cited a field 3 office disability report from a face-to-face interview stating 4 that Plaintiff s behavior and appearance were acceptable and he 5 did not appear to have difficulty understanding, concentrating, 6 sitting, standing, walking, or writing, among other things (AR 7 17, 165). 8 Plaintiff argues that the medical evidence shows that he had 9 severe problems with his discs at two levels including a 6 mm 10 disc bulge with pressure on the nerve root (J. Stip. at 37); but 11 the ALJ did not hold that Plaintiff had no impairments. Instead, 12 as the ALJ correctly noted, Plaintiff s medically determinable 13 impairments could be expected to cause the alleged symptoms, but 14 Plaintiff s testimony concerning the intensity, persistence and 15 limiting effects of those symptoms was not credible for the 16 reasons identified by the ALJ. (AR 13-14.) The ALJ s reasons 17 for rejecting Plaintiff s testimony in total constituted 18 appropriate bases for discounting Plaintiff s subjective symptom 19 testimony. See, e.g., Tommasetti, 533 F.3d at 1039 (ALJ may 20 infer that claimant s response to conservative treatment 21 undermines [claimant s] reports regarding the disabling nature of 22 his pain ); Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 23 1995) (holding that contradictions between claimant s testimony 24 and the relevant medical evidence provided clear and convincing 25 reasons for ALJ to reject plaintiff s subjective symptom 26 testimony); see also SSR 96-7p, 1996 WL 374186, at *5 (ALJ may 27 consider any observations about the individual recorded by [SSA] 28 employees during interviews, whether in person or by telephone ). 40 1 Plaintiff argues that the ALJ erred in considering 2 Plaintiff s daily activities as evidence of his lack of 3 credibility. (J. Stip. at 36 (citing Benecke v. Barnhart, 379 4 F.3d 587, 594 (9th Cir. 2004)), 42-43 (citing Vertigan, 260 F.3d 5 at 1050).) Although it is true that [o]ne does not need to be 6 utterly incapacitated in order to be disabled, Benecke, 379 7 F.3d at 594 (citing Vertigan, 260 F.3d at 1050), the extent of a 8 claimant s activity can support a finding that the claimant s 9 reports of his impairment were not fully credible. See Bray v. 10 Comm r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009); 11 Curry v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1990) (finding 12 that claimant s ability to take care of her personal needs, 13 prepare easy meals, do light housework and shop for some 14 groceries . . . may be seen as inconsistent with the presence of 15 a condition which would preclude all work activity ) (citing Fair 16 v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989)). Indeed, the Social 17 Security regulations specifically instruct an ALJ to consider 18 daily activities in making a credibility assessment. 20 C.F.R. 19 §§ 404.1529(c)(3), 416.929(c)(3); see also SSR 96-7p, 1996 WL 20 374186 at *3. Even if the ALJ somehow erred by relying on this 21 factor, however, it was harmless because the ALJ gave other clear 22 and convincing reasons, supported by substantial evidence, for 23 his credibility determination. See Carmickle v. Comm r, Soc. 24 Sec. Admin., 533 F.3d 115, 1162 63 (9th Cir. 2008). 25 Finally, Plaintiff argues that the ALJ did not comply with 26 the mandate of [SSR] 96-7p . . . which calls for an evaluation of 27 seven factors in assessing the credibility of one s subjective 28 complaints. (J. Stip. at 38.) To the extent Plaintiff argues 41 1 that the ALJ erred by failing to address each factor set forth in 2 SSR 96 7p, his claim lacks merit. SSR 96 7p identifies several 3 factors that may be considered to determine a claimant s 4 credibility, including (1) daily activities; (2) location, 5 duration, frequency, and intensity of pain and other symptoms; 6 (3) factors that precipitate and aggravate the symptoms; (4) 7 type, dosage, effectiveness, and side effects of any medication; 8 (5) treatment, other than medication, for relief of pain or other 9 symptoms; (6) any other measures the claimant uses or has used to 10 relieve pain or other symptoms (e.g., lying flat on his or her 11 back, standing for 15 to 20 minutes every hour, or sleeping on a 12 board); and (7) any other factors concerning functional 13 limitations and restrictions from pain or other symptoms. 14 96 7p, 1996 WL 374186, at *3. SSR Contrary to Plaintiff s claim, an 15 ALJ is not required to discuss and analyze each of those factors. 16 See, e.g., Vang v. Astrue, No. 1:10cv01810 DLB, 2011 WL 3319548, 17 at *8 (E.D. Cal. Aug. 1, 2011) ( ALJ is not required to discuss 18 and analyze each and every one of the factors enumerated in SSR 19 96 7p ); Collins v. Astrue, No. CV 07-08082-OP, 2009 WL 1202891, 20 at *6 (C.D. Cal. Apr. 27, 2009) (ALJ was not required to discuss 21 and analyze all of the factors enumerated in SSR 96-7p ; rather, 22 he must only give them consideration ). 23 In any event, the record as a whole reflects that the ALJ 24 adequately considered the factors listed in SSR 96-7p. In his 25 decision, the ALJ specifically stated that he had considered all 26 symptoms and the extent to which they could reasonably be 27 accepted based on the requirements of, among other things, SSR 28 96-7p. (AR 13.) The ALJ then summarized the medical evidence 42 1 (AR 14-16), including notations that Plaintiff s right-leg pain 2 increased with prolonged standing and weight bearing (AR 14) and 3 his back condition improved with medication and home exercise (AR 4 15). The ALJ also discussed Plaintiff s daily activities (AR 16- 5 17); the location and nature of his alleged pain (id.); and his 6 treatment with pain medication, home exercise, and physical 7 therapy (id.). During the hearing, the ALJ questioned Plaintiff 8 about his daily activities (AR 52-53), medical treatment (AR 449 48), and the nature of his pain (AR 53-54). Moreover, other than 10 asserting that the ALJ failed to address the enumerated factors, 11 Plaintiff cites nothing in the record to support his contentions 12 regarding his allegedly disabling symptoms. 13 42-44.) (J. Stip. at 34-39, Thus, the ALJ adequately considered the factors 14 enumerated in SSR 96-7p to support his adverse credibility 15 finding. 16 This Court may not second-guess the ALJ s credibility 17 finding simply because the evidence may have been susceptible of 18 other interpretations more favorable to Plaintiff. 19 Tommasetti, 533 F.3d at 1039. See The ALJ reasonably and properly 20 discredited Plaintiff s testimony regarding the severity of his 21 symptoms and gave clear and convincing reasons for his adverse 22 credibility finding. Reversal is therefore not warranted on this 23 basis. 24 25 26 D. The ALJ Properly Concluded That Plaintiff Could Perform a Significant Number of Jobs Plaintiff asserts that the ALJ improperly concluded that 27 Plaintiff could perform jobs identified by the VE because the VE 28 responded to a hypothetical posed by the ALJ that did not 43 1 include the extent of [Plaintiff s] documented physical and 2 mental limitations. (J. Stip. at 44-47.) In so arguing, 3 Plaintiff contends that the ALJ failed to include, in the RFC and 4 the hypothetical to the VE, Dr. Sobol s findings in the 5 fibromyalgia questionnaire and Dr. Curtis s finding of moderate 6 impairments. 7 (J. Stip. at 45.) As discussed above, the ALJ s RFC finding was supported by 8 substantial evidence and was therefore proper; thus, to the 9 extent Plaintiff argues that the ALJ s determination that he 10 could perform other work was erroneous because it was based on an 11 improper RFC finding, that argument fails for the reasons 12 outlined above.13 The ALJ properly posed a hypothetical to the 13 VE containing all the limitations he found credible based on the 14 evidence of record (AR 57-58); in response, the VE testified that 15 Plaintiff could perform three light, unskilled jobs that exist in 16 sufficient numbers in the local and national economy. (AR 58-59); 17 see Bayliss, 427 F.3d at 1218 (holding that because [t]he 18 hypothetical that the ALJ posed to the VE contained all of the 19 limitations that the ALJ found credible and supported by 20 substantial evidence in the record, ALJ s reliance on testimony 21 22 13 Plaintiff also argues that the ALJ failed to properly 23 consider the findings of the consultative examiner, presumably 24 Brawer, who reported [Plaintiff] would be up to moderately impaired in sustained concentration and attention, visual 25 tracking and mental ability in shifting sets. 26 27 28 (J. Stip. at 45.) Brawer, however, actually concluded that Plaintiff s ability to sustain attention and concentration for extended periods may be mildly diminished and noted that, during testing, Plaintiff demonstrated adequately-to-mildly diminished concentration, persistence and pace in completing tasks. (AR 354.) As a factual matter, therefore, this claim fails. 44 1 the VE gave in response to the hypothetical therefore was 2 proper ). Reversal is therefore not warranted on this basis. 3 VII. CONCLUSION 4 Consistent with the foregoing, and pursuant to sentence four 5 of 42 U.S.C. § 405(g),14 IT IS ORDERED that judgment be entered 6 AFFIRMING the decision of the Commissioner and dismissing this 7 action with prejudice. IT IS FURTHER ORDERED that the Clerk 8 serve copies of this Order and the Judgment on counsel for both 9 parties. 10 11 DATED: December 7, 2012 12 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 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. 45

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