Leticia Jimenez v. Carolyn W. Colvin, No. 2:2013cv08676 - Document 18 (C.D. Cal. 2014)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner. (See document for further details). (mr)

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Leticia Jimenez v. Carolyn W. Colvin Doc. 18 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 LETICIA JIMENEZ, Plaintiff, 13 14 15 16 No. CV 13-8676 SS MEMORANDUM DECISION AND ORDER v. CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant. 17 18 19 20 21 I. 22 INTRODUCTION 23 24 Leticia of Jimenez the ( Plaintiff ) seeks Commissioner of review the of Social the final 25 decision Security 26 Administration (the Commissioner or the Agency ) denying her 27 Disability Insurance Benefits and Supplemental Security Income. 28 The parties consented, pursuant to 28 U.S.C. § 636(c), to the Dockets.Justia.com 1 jurisdiction of the undersigned United States Magistrate Judge. 2 For the reasons stated below, the decision of the Commissioner is 3 AFFIRMED. 4 5 II. 6 PROCEDURAL HISTORY 7 8 9 Plaintiff filed applications for Title II Disability Insurance Benefits ( DIB ) and Title XVI Supplemental Security 10 Income ( SSI ) on July 27, 2010. 11 233-36, 237-41). 12 September 13 Plaintiff s applications on March 8, 2011. 14 On 15 Administrative 16 testified at the first of two hearings before ALJ Christine Long 17 on 18 language interpreter translated for Plaintiff. March May 20, 24, 3, Plaintiff alleged a disability onset date of 2007. 2011, Law 2012 (Administrative Record ( AR ) (AR 233, Plaintiff Judge ( First 237). The requested ( ALJ ). Hearing ). (AR denied (AR 105-07, 108-10). a (AR Agency hearing before 111-12). 49-68). an Plaintiff A Spanish (AR 52). 19 20 At the First Hearing, vocational expert ( VE ) Susan D. 21 Green incorrectly cited the Dictionary of Occupational Titles 22 ( DOT ) code for Plaintiff s previous relevant employment as a 23 data entry clerk. 24 additional research to establish the proper DOT code. 25 On May 23, 2012, the ALJ sought a written opinion by a new VE, 26 Frank Corso, Jr., as to whether use of the wrong DOT code could 27 lead 28 functional capacity (RFC). to an (AR 72). incorrect After the hearing, the ALJ conducted assessment of (AR 335-39). 2 Plaintiff s (AR 72). residual Mr. Corso proferred his 1 opinion on May 30, 2012. 2 informed Plaintiff that she wished to enter Mr. Corso s opinion 3 into the record as additional evidence. (AR 339). On June 5, 2012, the ALJ (AR 342). 4 5 On June 14, 2012, Plaintiff, now represented by attorney 6 Joel D. Leidner, requested a supplemental hearing. 7 July 18, 2012, Plaintiff testified at the supplemental hearing 8 ( Second Hearing ). 9 decision on August 21, 2012. (AR 69-96). (AR 161). On The ALJ issued an unfavorable (AR 22-38). Plaintiff filed a 10 timely request for review with the Appeals Council on September 11 20, 2012 (AR 18), which the Council denied on October 22, 2013. 12 (AR 1-4). 13 2013. Plaintiff filed the instant action on December 3, (Dkt. No. 3). 14 15 III. 16 FACTUAL BACKGROUND 17 18 Plaintiff was born on October 18, 1965. (AR 36). She was 19 forty-one years old as of the alleged disability onset date and 20 forty-six years old when she appeared before the ALJ. 21 75, 233, 237). 22 and continued her education through the tenth grade after moving 23 to the United States in 1978. 24 a check processor for a bank for approximately ten years prior to 25 the alleged disability onset date. 26 \\ 27 \\ 28 \\ (AR 57, Plaintiff attended elementary school in Mexico (AR 36, 58). 3 Plaintiff worked as (AR 260). She alleges that 1 2 pain in her hands prevented her from working after September 20, 2007.1 (AR 76). 3 4 On September 27, 2007, Plaintiff filed claims with the 5 California Workers Compensation Appeals Board ( Board ) for four 6 work-related injuries and conditions sustained between 2002 and 7 2007: strain and stress on the job, [Plaintiff] fell from a 8 chair, a metal hit [Plaintiff s] chest and strain of viewing 9 computer monitor. (AR 203-07). Board-approved workers 10 compensation physician Michael Bazel treated Plaintiff beginning 11 on September 27, 2007. 12 found Plaintiff ineligible for benefits, an ALJ reversed this 13 decision 14 Plaintiff had experienced hand pain since 2004, but a Board- 15 appointed orthopedic surgeon failed to consider this symptom when 16 he 17 (Id.). 18 217). 19 \\ on certified appeal. Plaintiff (AR 386). (AR to 214). return Although the Board initially The to Board work in ALJ noted February that 2008.2 Plaintiff settled with the Board on July 7, 2009.3 (AR 20 21 22 23 24 25 26 27 28 1 Plaintiff told the ALJ that she stopped working due to hand pain. (AR 76). However, in the Disability Report accompanying her benefits application, Plaintiff stated that she stopped working because of conditions including Lower back, Right and Left Wrists, Carpal Tunnel, Arthritis in Knees and body, Insomnia and Depression and Anxiety. (AR 259). 2 The Board ALJ s observation is confirmed by records from Plaintiff s personal physician, Dr. George Bernales, which noted wrist pain as early as 2003. (See, e.g. AR 443). 3 As part of her workers compensation settlement, Plaintiff declared that she was not receiving Social Security benefits and did not anticipate applying for benefits within six months. (AR 231). She did not apply for Social Security benefits until a year after the settlement. (AR 233, 237). 4 1 A. Medical History And Doctors Opinions 2 1. 3 Physical Condition 4 5 a. Dr. George Bernales 6 7 Plaintiff first saw George Bernales, M.D., her primary care 8 physician, in 1994. 9 for insomnia (January 12, 2000; AR 482); a ganglion cyst (June 10 21, 2000; AR 480); anxiety (June 20, 2001; AR 478); and a non- 11 cancerous growth in Plaintiff s right eye.4 12 August Plaintiff to 13 rheumatologist Michael Maehara, M.D., for left wrist pain. (AR 14 443). 15 reported suffering intermittent wrist pain for a year. 16 He attributed the pain most likely [to] overuse syndrome and 17 prescribed Motrin, 18 Bernales. (AR 19 syndrome ( CTS ) in April 2005.5 20 \\ 21 \\ 22 \\ 23 \\ 25, (AR 496). 2003, Dr. Dr. Bernales treated Plaintiff Bernales (AR 427-28). referred On The rheumatologist s treatment notes show that Plaintiff also 444). reporting Dr. Bernales his conclusions diagnosed carpal (Id.). to Dr. tunnel (AR 429). 24 4 25 26 27 28 The specific eye diagnosis was of a pterygium. (AR 428). A pterygium is a non-cancerous growth that may be symptomless or cause burning, irritation or vision problems. See Pterygium, MEDLINEPLUS,http://www.nlm.nih.gov/medlineplus/ency/article/001011. htm (last visited Oct. 9, 2014). 5 The exact date is unclear from the treatment note, as is the wrist in question. 5 1 b. Dr. Michael Bazel 2 3 On September 25, 2007, Plaintiff selected Michael Bazel, 4 M.D., to serve as the primary treating physician for her workers 5 compensation 6 visited Dr. Bazel that same day. 7 two months after his last examination of Plaintiff, Dr. Bazel 8 issued his final Permanent and Stationary Report to the Board. 9 (Id.). determination. (AR 202, 386). (AR 386). Plaintiff first On February 9, 2009, After describing the injuries Plaintiff alleged in her 10 workers compensation claims (AR 387-89), Dr. Bazel noted that 11 Plaintiff complained of headache, 12 upper back pain, and low back pain.6 13 number 14 tenderness over the dorsal and palmar aspects of the lists, 15 bilaterally. 16 motion. 17 Tinel and Phalen tests -- showed results consistent with the 18 syndrome.7 19 \\ 20 \\ 21 The Court assumes that bilateral wrist and hand also refers to a pain complaint. 7 In the Tinel test, the doctor taps on or presses on the median nerve in the patient's wrist. The test is positive when tingling in the fingers or a resultant shock-like sensation occurs. The Phalen, or wrist-flexion, test involves having the patient hold his or her forearms upright by pointing the fingers down and pressing the backs of the hands together. The presence of carpal tunnel syndrome is suggested if one or more symptoms, such as tingling or increasing numbness, is felt in the fingers within 1 minute. Carpal Tunnel Syndrome Fact Sheet, NINDS, http://www.ninds.nih.gov/disorders/carpal_tunnel/detail_carpal_tu nnel.htm (last visited Oct. 9, 2014). 22 23 24 25 26 27 28 of tests (Id.). on Plaintiff s (AR 392). bilateral wrist and hand, (AR 389). upper He performed a extremities, noting Both wrists showed a normal range of However, two tests used to diagnose CTS -- the \\ 6 6 1 Dr. Bazel also reviewed magnetic resonance images (MRIs) and Plaintiff s wrists taken by 2 nerve 3 radiologist Sim Hoffman, M.D., on December 12, 2007. 4 He affirmed the radiologist s impression that enlargement of the 5 median nerve in Plaintiff s right wrist was consistent with CTS, 6 and also found mild enlargement of the median nerve in the left 7 wrist.8 8 extremity studies conducted on January 23 and July 31, 2008, Dr. 9 Bazel conduction (AR 399). found studies of (AR 399). However, after comparing the results of upper definite improvement in Plaintiff s CTS and (AR 399-400). an 10 apparent resolution of left ulnar neuropathy. Dr. 11 Bazel also noted tenderness and spasm in Plaintiff s lower back 12 (AR 395), and described an MRI showing multilevel disk disease 13 and a nerve conduction study consistent with radiculopathy. 9 14 (AR 402). 15 noted definite improvement in the lumbar area, with apparent 16 resolution of neuropathy he had suspected earlier. 17 400). Here once again, however, Dr. Bazel s final report (AR 399- 18 19 Dr. Bazel s December 9, 2008 Permanent and Stationary Report 20 made eleven diagnoses: (1) pterygium; (2) vision difficulty; (3) 21 22 23 24 25 26 27 28 8 In his report to Dr. Bazel, Dr. Hoffman opined that carpal tunnel syndrome cannot be excluded (AR 348) and should be clinically considered. (AR 351). Dr. Bazel interpreted Dr. Hoffman s MRIs and nerve conduction studies as showing findings consistent with bilateral carpal tunnel syndrome. (AR 402). Dr. Hoffman did not compare the extent of the median nerve enlargement in Plaintiff s left and right wrists. (See AR 348, 351). 9 Radiculopathy is any disease that affects the spinal nerve roots, and may be caused by herniated disks. Herniated disk, MEDLINEPLUS, http://www.nlm.nih.gov/medlineplus/ency/article/ 000442.htm (last visited Oct. 10, 2014). 7 1 lower 2 bilateral wrist sprain; (7) bilateral CTS; (8) headaches; (9) 3 depression; 4 However, 5 dramatically improved and could return to work with certain 6 restrictions.11 7 pushing or pulling with the hand or wrist, avoiding repetitive 8 finger 9 avoiding 10 back strain; (10) Dr. disc anxiety; Bazel s 2008 bending, motion, disease; and (Id.). wrist or (4) These not stooping, found included lifting that (AR 20 prolonged (6) 401). Plaintiff avoiding beyond climbing, walking, and driving over 60 minutes. radiculopathy; insomnia.10 (11) report (5) had repetitive lbs., and standing or (AR 402). 11 12 c. Dr. Carl E. Millner 13 14 On January 21, 2011, state agency consultative physician 15 Carl E. Millner, M.D., conducted an internal medicine examination 16 of Plaintiff. 17 knee pain, and Dr. Millner ordered x-rays of Plaintiff s wrists 18 and knees. 19 swelling over all of these joints, but no acute conditions. 20 511-12). 21 lorazepam, ranitidine, cyclobenzaprine, and Tylenol Arthritis.12 22 23 24 25 26 27 28 (AR 506-10). Plaintiff complained of wrist and (AR 506, 511-12). Plaintiff reported The x-rays revealed soft-tissue that she was currently (AR taking Dr. Bazel noted that the pterygium had resolved. (AR 400). Plaintiff appears to have undergone surgery to remove this condition in 2006. (AR 426). 11 Dr. Bazel certified Plaintiff to return to work as early as October 23, 2008, so long as she restricted the use of her hands. (AR 406). 12 According to the National Institutes of Health, the first three medications are used for the following conditions: lorazepam (anxiety, insomnia); ranitidine (acid reflux); cyclobenzaprine (muscle pain and strain). Lorazepam, Ranitidine, Cyclobenzaprine, MEDLINEPLUS, http://www.nlm.nih.gov/medlineplus/ 10 8 1 Dr. Millner noted that Plaintiff s CTS had resolved following 2 conservative 3 responses 4 condition.13 5 wrist joints, [f]lexion, extension, radial deviation and ulnar 6 deviation 7 Flexion and extension of Plaintiff s finger and thumb joints were 8 normal, as well. 9 difficulty, treatment. to both the (AR Phalen within 509). He recorded and Tinel tests used normal for this Dr. Millner noted that at Plaintiff s (AR 509). are 507, normal bilaterally. (AR 508). She was able to make a fist without (Id.). to limits extend her hands, and to 10 oppose the thumb to each finger. (Id.). 11 diagnosed the 12 radiculopathy, 13 Plaintiff s history he found that Plaintiff had no restrictions 14 on 15 sitting or any other physical activity. mild pushing, osteoarthritis based on pulling, of his Although Dr. Millner knees examination lifting, carrying, and and mild a walking, lumbar review of standing, (AR 509-10). 16 17 2. Mental Condition 18 a. 19 Dr. Alexis Meshi 20 21 On February 15, 2011, state agency consultative psychiatrist 22 Alexis Meshi, M.D., 23 Plaintiff. Dr. Meshi noted that Plaintiff drove herself to the 24 examination but 25 Plaintiff reported that she had been struggling with moderate wore conducted a brace a on mental her health right examination hand. (AR of 515). 26 27 28 druginfo/meds/ (locate Browse by generic or brand name and click first letter of drug name) (last visited Oct. 10, 2014)). 13 See n.7 for descriptions of these tests. 9 1 depression and some anxiety issues since 2007. 2 cried more frequently, suffered insomnia, and reported having 3 what sounds like panic attacks. 4 relieved these symptoms. 5 [gotten] along excellently while working at the bank and had 6 not been the subject of any negative personnel action. 7 516). 8 seeing a psychiatrist. (Id.). (AR 515-516). (Id.). She However, medications Plaintiff said she had (AR She denied a family mental illness history and was not (Id.). 9 10 Dr. Meshi assessed Plaintiff with mild memory problems and 11 more significant difficulty with attention and focus issues. 12 (AR 518). 13 and 14 currently 15 Plaintiff had symptoms of depression and anxiety that could be 16 significantly relieved with appropriate treatment. 17 recommended that Plaintiff discuss further treatment with her 18 physician, and judged Plaintiff s prognosis as fair. However, she opined that Plaintiff could follow one- two-part not instructions doing. certainly (Id.). with Similarly, treatment she she noted is that (Id.). She (Id.). 19 20 21 B. Non-Examining Physicians Opinions Regarding Plaintiff s Physical And Mental Condition 22 23 1. Dr. Samantha Park 24 25 Nonexamining physician Samantha Park, M.D., reviewed 26 Plaintiff s medical records on March 4, 2011. 27 Park took into account Plaintiff s allegations of low back pain, 28 CTS, arthritis, insomnia, depression and anxiety. 10 (AR 97-104). (AR 97). Dr. She 1 noted that Plaintiff had sharp pains in her wrists and knees 2 and 3 Plaintiff reported taking, her alleged physical limitations and 4 her 5 Plaintiff s 6 Based on this review, Dr. Park filed a Disability Determination 7 showing 8 diagnosis of mild osteoporosis.14 had headaches. daily (Id.) activities. medical a primary Dr. (Id.). Park Dr. records. diagnosis noted Park (AR of the also 98, depression medications summarized 100, and a 102). secondary (AR 103-04). 9 10 2. Dr. Winston Brown 11 Dr. Winston Brown reviewed Plaintiff s records and created a 12 13 Mental RFC Assessment on March 4, 2011. 14 concluded 15 anxiety-related disorders. 16 exhibited a medically determinable impairment of anxiety that did 17 not precisely satisfy the criteria for a specific anxiety-related 18 disorder. 19 not 20 range 21 sustained concentration and persistence, social interaction, and 22 ability 23 assessment, 24 perform work where interpersonal contact is incidental to work 25 performed, e.g. assembly work; complexity of tasks is learned and 26 \\ that Plaintiff s (AR 530). significantly of to included (AR 525). both Dr. Brown affective and He found that Plaintiff Dr. Brown opined that Plaintiff was either limited capacities, adapt. Dr. RFC (AR 521-37). Brown or moderately including (AR 523). concluded limited understanding As that an overall Plaintiff and across memory, mental is a able RFC to 27 14 28 The Disability Determination was also signed by C. Winston Brown, M.D. (AR 103-04). 11 1 performed by rote, few variables, little judgment; supervision 2 required is simple, direct and concrete (unskilled). (Id.). 3 4 C. Vocational Expert Testimony 5 6 1. Susan Green 7 8 9 VE Susan Green testified at the First Hearing regarding the existence of jobs that Plaintiff could perform, given her 10 physical and mental limitations. 11 First Hearing, however, the ALJ concluded that Ms. Green used an 12 improper DOT code for Plaintiff s past relevant work, causing her 13 to give inaccurate answers to the ALJ s hypotheticals. 14 72). 15 assessment from a new VE, Frank Corso, Jr. (AR 65-67). Following the The ALJ discarded VE Green s assessment and (AR 28, sought an (AR 74, 336). 16 17 2. Frank Corso, Jr. 18 19 The ALJ posed a single hypothetical in a written inquiry 20 that Mr. Corso answered on May 30, 2012. 21 asked 22 Plaintiff s age, education, and literacy skills. The individual 23 previously worked as a Data Entry Clerk with an exertional level 24 of sedentary work and a skill level . . . of 4. 25 The individual had an RFC to perform light work as follows: lift 26 and 27 unlimited sitting ability; stand and walk 6 hours total in an 8 28 hour workday and must be able to alternate sitting and standing Mr. carry Corso 20 to pounds assume a hypothetical occasionally 12 (AR 335-39). and 10 The ALJ individual with (AR 335, 337). pounds frequently; 1 every occasional stooping; and 2 frequent handling and fingering with both hands. (AR 337). Mr. 3 Corso opined that such an individual would not be able to perform 4 Plaintiff s 5 requires constant fingering. 6 concluded 7 occupations. 8 sorter, cashier II, sales attendant, charge account clerk, or 9 document preparer. 2 hours with past normal relevant that such breaks; work, an (AR 338). because Data (AR 337). individual Entry Clerk However, Mr. Corso could perform other These included work as an order clerk, (Id.). Mr. Corso opined that 1,400 to 10 60,000 such positions existed in the local economy, depending on 11 the specific job, and 40,000 to 1.7 million positions existed in 12 the national economy. (Id.). 13 3. 14 Allan Ey 15 Mr. Corso was unable to testify at the Second Hearing, and 16 17 the ALJ sought new testimony from VE Allan Ey. 18 posed three hypotheticals. 19 to 20 background who could lift and carry twenty pounds occasionally 21 and ten pounds frequently. 22 for an unlimited time, stand and walk for six out of eight work 23 hours, alternate sitting and standing every two hours with normal 24 breaks, and do frequent handling and fingering with both hands. 25 (Id.). 26 Plaintiff s past work, but could perform such light work as 27 cashier II, with 40,000 jobs available regionally and one million 28 \\ assume VE an Ey individual opined (AR 83-86). of that such 13 an The ALJ First, she asked the VE Plaintiff s (AR 83-84). (AR 73). age and educational The individual could sit individual could not do 1 nationally, or mail clerk, with 6,000 jobs regionally and 100,000 2 nationally. (Id.). 3 4 In her second hypothetical, the ALJ asked Mr. Ey to assume 5 that the individual could lift and carry no more than ten pounds 6 either occasionally or frequently. 7 sit for no more than four out of eight hours but could stand and 8 walk for six out of eight hours. 9 could do only frequent, not constant, handling and fingering 10 with both hands, and would have to briefly alternate standing and 11 sitting 12 individual could not perform Plaintiff s past work, but could 13 work 14 preparer. 15 available regionally and nationally. each as a hour. food (AR and (Id.). 85). beverage (Id.). The individual could (AR 84-85). The order VE opined clerk or The individual that as a such an document There were significant numbers of these jobs (Id.). 16 Finally, 17 the ALJ asked Mr. Ey to consider a third 18 hypothetical individual who could lift and carry no more than ten 19 pounds occasionally or frequently and who could sit no more than 20 four out of eight hours. 21 could stand and walk no more than two hours out of every eight, 22 would have to alternate standing and sitting briefly every thirty 23 minutes, could do only occasional stopping, kneeling, crouching 24 and crawling, and could do no more than occasional fingering with 25 both hands. 26 do neither Plaintiff s former relevant work nor any other job in 27 the regional or national economy. 28 \\ (Id.). (AR 86). However, this individual The VE opined that such an individual could 14 (Id.). 1 The ALJ Plaintiff s invited counsel to ask additional 2 questions. 3 opine 4 workplace activities, specifically asking if a person has to do 5 something frequently . . . would they necessarily have to do that 6 repetitively? 7 activities 8 workday. 9 equivalence of the terms frequent and repetitive but opined 10 that frequent activities might be those that were intermittent 11 repetitive. (Id.). on the Of relevance here, counsel asked the VE to relationship (AR are those 87). of The occupying (AR 87-88). repetitive VE and responded one-third to frequent that frequent two-thirds of a The VE was unable to establish a direct (AR 88). 12 13 Counsel also asked the VE to consider an individual with 14 limitations 15 Plaintiff: no repetitive pushing or pulling with hand/wrist, no 16 repetitive 17 pounds, no bending, stooping, climbing, prolonged standing or 18 walking, no driving over 60 minutes. 19 402). 20 could not do any of the alternative jobs. 21 referring to Dr. Meshi s psychiatric report, counsel asked the VE 22 to 23 attention and focus problem but who could follow one- and two- 24 part instructions. 25 an individual could not do any of the alternative jobs. 26 \\ 27 \\ 28 \\ identical finger/wrist to those motion, Dr. . . Bazel . no had specified lifting beyond for 20 (Compare AR 90 and AR The VE opined that an individual with those limitations consider an individual with a (AR 91, 92-93, 518). 15 (AR 91). moderately Finally, significant The VE opined that such (AR 92). 1 D. Plaintiff s Testimony 2 1. 3 Testimony Before The ALJ 4 5 Plaintiff attributed her condition to two accidents she 6 suffered while working for the bank, resulting in back and wrist 7 injuries.15 8 physicians until 2009, when she was treated by new physicians. 9 (AR 61-62). (AR 61). Plaintiff saw worker s compensation She described her ongoing problems as lower back 10 pain, pain and numbness in her knees, neck and wrist pain, and 11 numbness in her fingers. 12 her back and wrists but avoided recommended back surgery because 13 I ve heard that people have become not able to walk. (AR 62). She had physical therapy for (Id.). 14 In a typical day, Plaintiff awoke at seven a.m., had a light 15 16 breakfast and then took pain medication. (AR 63). She also took 17 pain medication before going to bed at eight p.m., and again in 18 the middle of the night when she typically awoke with pain. 19 63-64). 20 not heavy around the house and prepared meals, but relied on her 21 husband to help with household tasks she could not handle. 22 63, 77). 23 burning pain in her back and had to stand. (AR 64). She 24 needed to stand for a few minutes during the Second Hearing. (AR (AR During the day, she did whatever I m able to do that s (AR She could sit for about an hour, but then would feel 25 26 27 15 28 As both hearings were before ALJ Christine Long, discussion of Plaintiff s testimony will be combined in a single section. 16 1 77). 2 took walks around the block. 3 her to feel tired, and she felt best when lying down. She could walk longer than she could sit, and routinely (AR 64). However, standing caused (AR 78). 4 5 Plaintiff experienced awful back pain the night before the 6 Second Hearing, and stopped at her physician s office for an 7 injection 8 (Id.). 9 for her hands and once a week for her back, but at the time of of pain medication prior to meeting with the ALJ. She continued to see a physical therapist twice a week 10 the Second Hearing she 11 months. not seen an orthopedist for two 12 time, 13 testified that her medications were effective at treating her 14 pain but caused dizziness. She wore braces on both wrists most of the (AR 78-79). including had while driving.16 (AR 76-77). Plaintiff (AR 63). 15 16 Plaintiff testified that the pain in her hands caused her to 17 leave her bank job. 18 meeting 19 breaks. 20 she was unable to take it during the workday. 21 noted that Dr. Bazel, the workers compensation physician, told 22 her to reduce her work hours from eight to no more than four or 23 six. 24 \\ 25 \\ production (Id.). (AR 76). quotas and The pain prevented her from caused her to take unscheduled Because her pain medication caused dizziness, (AR 79). She (AR 80). 26 27 28 16 Plaintiff gave conflicting testimony about her ability to drive, first stating that lower back pain prevented her from driving but then stating that she drove a little. (AR 58, 63). 17 Statements From Plaintiff s Benefits Application 2. 1 2 3 In reports accompanying her benefits application, Plaintiff 4 stated that she stopped working on September 20, 2007, about a 5 year after her conditions caused her to modify her work habits.17 6 (AR 259). 7 Right and Left Wrists, Carpal Tunnel, A[r]thritis in Knees 8 and body, insomnia, depression and anxiety. 9 that her work consisted of running checks through a processing 10 machine and inputting information from the checks on a computer. 11 (AR 261). 12 checks 13 twenty pounds.18 14 sit for six hours, walk or stand for one hour, and write, type or 15 handle small objects for seven hours. 16 have to write or complete reports. Plaintiff listed these conditions as Lower back, (Id.). She noted Twice a day, she had to lift and carry a tray full of approximately thirty (AR 280). feet, and she frequently lifted On a typical workday, Plaintiff would (Id.). Plaintiff did not (Id.). 17 Plaintiff 18 knees, described and also her symptoms headaches, as and sharp stated pains that on 19 wrist, 20 usually lasted five hours if unmedicated. 21 the Agency interviewer that she [had been] taking medications 22 but I no longer take them. (AR 287). the my pain She told I am only taking [T]ylenol [for] 23 17 24 25 26 27 28 Plaintiff did not specify how she had modified her work habits. 18 Plaintiff s July 27, 2010 Disability Report and her October 27, 2010 Work History Report indicated that she carried different maximum weights. In the Disability Report, completed by Agency interviewer P. Rangel, Plaintiff indicated that she carried a maximum of ten pounds. (AR 261). In the Work History Report, which Plaintiff completed on her own, she reported carrying up to twenty pounds. (AR 280). 18 1 arthritis. 19 2 every other day, and stated that excessive lifting, kneeling, 3 heavy duty work, typing and writing caused pain. (AR 287). 4 She also experienced migraines approximately monthly. (AR 288). 5 Cold weather, air conditioning and not having medicine made her 6 symptoms worse, but wearing warm clothing, drinking hot tea and 7 physical therapy helped. (AR 266). Plaintiff reported experiencing pain (Id.). 8 9 In a typical day, Plaintiff showered, had breakfast, did 10 light housework, went outside to water her plants, and fed her 11 dog and pet birds. 12 complete meals daily, but felt pain if she did not keep the 13 cooking easy. 14 week, wash small amounts of dishes when necessary and make her 15 bed every day. 16 bottles, 17 removing weeds and cutting the lawn. (AR 289). (AR 291). (Id.). getting items Plaintiff was able to prepare She could do the laundry twice a However, she needed help opening cans and from shelves, sweeping and mopping, (Id.). 18 19 Plaintiff went for walks outside twice a week (AR 289), went 20 grocery shopping once every two weeks for an hour, and could 21 drive on her own. 22 went to a park twice a week. 23 conditions she had to give up camping and could not attend social 24 events at night or in cold weather. 25 Plaintiff s Disability Report, completed by the Agency interviewer, differed from with the Pain and Other Symptoms report Plaintiff completed on her own three months later. On the latter report, Plaintiff listed her current medications as naproxen, omeprazole, temazepam, ranitidine, and lorazepam. (Compare AR 266 and AR 288). 26 27 28 (AR 292). She attended church once a week and (AR 293). 19 19 However, due to her (AR 294). She no longer 1 went to the gym, and required her husband s help to walk the dog 2 or clean the bird cage. 3 as she wanted to, and sharp pains interfered with her sleep. 4 (Id.). (AR 290). She could not brush her hair 5 6 Plaintiff could pay attention for an hour, follow written 7 instructions well after reading them 2-3 times, and get along 8 well with authority figures. 9 fired from a job due to an inability to get along with others. (AR 294-95). She had never been 10 (AR 295). 11 when home alone, and rated her stress level as mid level. 20 12 (Id.). However, she reported that she experienced anxiety 13 IV. 14 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 15 16 17 To 18 demonstrate 19 impairment that prevents her from engaging in substantial gainful 20 activity and that is expected to result in death or to last for a 21 continuous period of at least twelve months. 22 157 23 423(d)(1)(A)). 24 of performing the work she previously performed and incapable of 25 20 26 27 28 F.3d qualify a 715, for disability medically 721 (9th benefits, determinable Cir. 1998) a claimant physical or must mental Reddick v. Chater, (citing 42 U.S.C. § The impairment must render the claimant incapable In the Disability Report filed with her 2011 appeal, Plaintiff described her hands as hurting more and her anxiety and insomnia as worse. (AR 299). Due to a lack of income, she had to borrow money from relatives in order to pay for pain medication. (AR 302). She also reported suffering from depression. (Id.). 20 1 performing any other substantial gainful employment that exists 2 in the national economy. 3 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Tackett v. Apfel, 180 F.3d 1094, 1098 4 5 To decide if a claimant is entitled to benefits, an ALJ 6 conducts a five-step inquiry. 7 The steps are: 20 C.F.R. §§ 404.1520, 416.920. 8 9 (1) Is the claimant presently engaged in substantial 10 gainful activity? 11 not disabled. 12 (2) If so, the claimant is found If not, proceed to step two. Is the claimant s impairment severe? 13 claimant is found not disabled. 14 If not, the to step three. 15 (3) If so, proceed Does the claimant s impairment meet or equal one 16 of 17 C.F.R. Part 404, Subpart P, Appendix 1? 18 the claimant is found disabled. 19 to step four. 20 (4) the specific impairments described in 20 If so, If not, proceed Is the claimant capable of performing his past 21 work? 22 If not, proceed to step five. 23 (5) If so, the claimant is found not disabled. Is the claimant able to do any other work? 24 not, the claimant is found disabled. 25 claimant is found not disabled. 26 27 \\ 28 \\ 21 If If so, the 1 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 2 262 F.3d 949, 953-54 (9th Cir. 2001) (citations omitted); 20 3 C.F.R. §§ 404.1520(b)-(g)(1) & 416.920(b)-(g)(1). 4 5 The claimant has the burden of proof at steps one through 6 four, and the Commissioner has the burden of proof at step five. 7 Bustamante, 262 F.3d at 953-54. 8 affirmative duty to assist the claimant in developing the record 9 at every step of the inquiry. Additionally, the ALJ has an Id. at 954. If, at step four, the 10 claimant meets her burden of establishing an inability to perform 11 past 12 perform some other work that exists in significant numbers in 13 the national economy, taking into account the claimant s residual 14 functional capacity ( RFC ), age, education, and work experience. 15 Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 16 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 17 so by the testimony of a vocational expert or by reference to the 18 Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404, 19 Subpart P, Appendix 2 (commonly known as the Grids ). 20 v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). 21 has 22 limitations, the Grids are inapplicable and the ALJ must take the 23 testimony of a vocational expert. 24 869 (9th Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 25 1340 (9th Cir. 1988)). 26 \\ 27 \\ 28 \\ work, both the Commissioner exertional must show that claimant can The Commissioner may do (strength-related) 22 the and Osenbrock When a claimant non-exertional Moore v. Apfel, 216 F.3d 864, 1 V. 2 THE ALJ S DECISION 3 4 The ALJ employed the five-step sequential evaluation process 5 and concluded that Plaintiff was not under a disability within 6 the meaning of the Social Security Act from September 20, 2007, 7 through the date of the ALJ s decision on August 21, 2012. 8 38). 9 in substantial gainful employment since September 20, 2007. (AR (AR At step one, the ALJ found that Plaintiff had not engaged At step two, the ALJ found that Plaintiff had four severe 10 31). 11 impairments: work-related CTS and left lumbar L5 radiculopathy; 12 mild degenerative disc disease of the lumbar spine; and mild 13 degenerative disc disease of the cervical spine (Id.). 14 three, the ALJ found that Plaintiff did not have an impairment or 15 combination of impairments that met or medically equaled one of 16 the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 17 1. (AR 32). 18 RFC: At step The ALJ then found that Plaintiff had the following 19 [Plaintiff] has the residual functional capacity to: 20 lift and carry 20 pounds occasionally and 10 pounds 21 frequently; sit without limitation; stand and walk 6 22 hours in an 8-hour workday, but she must be able to 23 alternate between sitting and standing briefly every 2 24 hours 25 frequently handle and finger with both hands (20 CFR 26 404.1520(e); 20 CFR 416.920(e)). with normal breaks; 27 28 (Id.). 23 occasionally stoop; and 1 In making this finding, the ALJ gave significant weight to 2 Dr. Bazel s conclusions about Plaintiff s CTS.21 3 noted, in particular, that while Dr. Hoffman s MRI and nerve 4 conduction studies suggested carpal tunnel syndrome, Dr. Bazel s 5 December 9, 2008 final report found that Plaintiff s condition 6 had shown definite improvement during 2008. 7 noted 8 conservative treatment, Plaintiff had dramatically improved and 9 [was] able to go to modified duty. Dr. Bazel s opinion that after (AR 34-35). (AR 34). a full She She also course of (AR 35). 10 11 Further, the ALJ observed that there was no evidence in the 12 Administrative 13 obtained treatment for CTS between December 2008 and November 14 2011, 15 confirming that CTS was still present. 16 Bazel 17 finger 18 Plaintiff to make frequent wrist or finger motions. (Id.). 19 Such motions, she observed, were consistent with the RFC. (Id.). 20 Similarly, 21 consistent 22 encompassed by the RFC. 23 \\ 24 \\ 25 21 26 27 28 when had Record suggesting Plaintiff advised motions, Dr. with had a Plaintiff the ALJ Bazel s light that single to Permanent work neurological avoid concluded Plaintiff (Id.). this Although Dr. activities and wrist still Stationery the or consultation repetitive that and sought and permitted Report was limitations (Id.). The ALJ noted that the Administrative Record included treatment records from Plaintiff s primary care physician, Dr. Bernales, but observed that these records did not establish impairment as of the alleged disability onset date. (AR 36). She opined that Dr. Bernales s records from before or after the 2007-2009 period were not relevant to her inquiry. (Id.). 24 1 Additionally, the ALJ weighed Plaintiff s testimony as to 2 her symptoms, limitations and daily activities, concluding that 3 Plaintiff s testimony was not completely credible. 4 The ALJ reasoned, in particular, that Plaintiff s decision not to 5 undergo surgery, her minimal use of medication, and lack of 6 follow-up treatment or limited use of recommended specialists 7 indicated that her pain was less severe than alleged. 8 Moreover, Plaintiff was able to wash dishes, do laundry, cook, 9 clean, feed her puppy, and grasp and pull weeds, all of which 10 suggested that her 11 alleged. capabilities were not as (AR 33-34). limited (Id.). as she (Id.). 12 13 At step four, the ALJ determined that Plaintiff was unable 14 to perform any past relevant work as defined by 20 C.F.R. §§ 15 404.1520(f), 404.1565, 416.920(f) 16 Finally, step the 17 education, work experience, and RFC and concluded that she could 18 perform jobs available in significant numbers in the national 19 economy. 20 additional limitations, she could not be expected to perform 21 the full range of light work. 22 the 23 employment as an order clerk, clerical sorter, sales attendant or 24 mail clerk. 25 Plaintiff was not disabled under the Agency s rules. 26 \\ 27 \\ 28 \\ VE at (AR 38). testimony, five The the ALJ ALJ (AR 37-38). ALJ and 416.965. considered noted that, (AR 37). found that (AR 36). Plaintiff s age, due to Plaintiff s However, considering Plaintiff could find Therefore, the ALJ concluded that 25 (AR 38). 1 VI. 2 STANDARD OF REVIEW 3 4 Under 42 U.S.C. § 405(g), a district court may review the 5 Commissioner s decision to deny benefits. The court may set 6 aside the Commissioner s decision when the ALJ s findings are 7 based on legal error or are not supported by substantial evidence 8 in the record as a whole. 9 1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); Smolen 10 v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Fair v. 11 Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). Aukland v. Massanari, 257 F.3d 1033, 12 Substantial evidence is more than a scintilla, but less 13 14 than a preponderance. 15 v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). 16 evidence which a reasonable person might accept as adequate to 17 support a conclusion. Id. (citing Jamerson, 112 F.3d at 1066; 18 Smolen, 19 evidence supports a finding, the court must consider the record 20 as a whole, weighing both evidence that supports and evidence 21 that detracts from the [Commissioner s] conclusion. 22 257 F.3d at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th 23 Cir. 24 affirming 25 substitute its judgment for that of the Commissioner. 26 157 F.3d at 720-21 (citing Flaten v. Sec y, 44 F.3d 1453, 1457 27 (9th Cir. 1995)). 80 F.3d 1993)). or at If Reddick, 157 F.3d at 720 (citing Jamerson 1279). the reversing To evidence that determine can 28 26 whether reasonably conclusion, It is relevant the substantial Aukland, support court either may not Reddick, 1 VII. 2 DISCUSSION 3 4 Plaintiff challenges the ALJ s decision on two grounds. 5 First, Plaintiff asserts that because ALJ failed to reject Dr. 6 Bazel s 7 assessment must be credited as true. (Memorandum in Support of 8 Plaintiff s Complaint ( MSPC ) at 5). Second, because Dr. Bazel 9 recommended that Plaintiff avoid repetitive use of her hands, 10 Plaintiff contends that the ALJ s hypothetical -- which allegedly 11 omitted any reference to this limitation -- elicited inaccurate 12 testimony from VE Allan Ey. assessment of Plaintiff s physical limitations, that (MSPC at 6-7). 13 14 The Court disagrees with both contentions. The record 15 demonstrates that the ALJ credited Dr. Bazel s opinion, gave it 16 great weight, and found it consistent with the RFC she applied. 17 Moreover, the record contradicts Plaintiff s assertion that the 18 ALJ disregarded Dr. Bazel s recommendation against repetitive 19 hand 20 Accordingly, for the reasons discussed below, the Court finds 21 that the ALJ s decision must be AFFIRMED. motions when she posed her hypotheticals to VE Ey. 22 23 A. The ALJ Gave Proper Weight To Dr. Bazel s Opinions 24 Plaintiff argues that the ALJ discussed but did not reject 25 26 Dr. Bazel s report, and that 27 Plaintiff s limitations should therefore be credited as true. 28 27 Dr. Bazel s assessment of 1 (MSPC at 5). 2 Bazel s report and arrived at a proper outcome. The Court disagrees. The ALJ did fully credit Dr. 3 4 Social Security regulations require the ALJ to consider all 5 relevant medical evidence when determining whether a claimant is 6 disabled. 7 Where the Agency finds the treating physician s opinion of the 8 nature and severity of the claimant s impairments well-supported 9 by accepted medical techniques, and consistent with the other 10 substantive evidence in the record, that opinion is ordinarily 11 controlling. 12 625, 631 (9th Cir. 2007). 13 (citing 14 physician s opinion is owed deference, and often the greatest 15 weight). 16 rejecting 17 Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). 20 C.F.R. §§ 404.1520(b), 404.1527(c), 416.927(c). 20 C.F.R. § 404.1527(c)(2); Orn v. Astrue, 495 F.3d Orn)(even when See also Garrison, 759 F.3d at 1012 contradicted, treating or examining An ALJ must give specific and legitimate reasons for the findings of treating or examining physicians. 18 19 Nevertheless, the ALJ is also responsible for determining 20 credibility, resolving conflicts in medical testimony, and for 21 resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 22 (9th Cir. 1995); see also Tommasetti v. Astrue, 533 F.3d 1035, 23 1041 24 respect 25 Findings of fact that are supported by substantial evidence are 26 conclusive. 42 U.S.C. § 405(g); see also Kay v. Heckler, 754 F.2d 27 1545, 1549 (9th Cir. 1985) ( Where the evidence as a whole can 28 support (9th to Cir. 2008) resolving either a ( [T]he ALJ ambiguities grant or a 28 is in the the denial, final medical [the arbiter with evidence. ). court] may not 1 substitute [its] judgment for the ALJ's. ); Ryan v. Comm'r, 528 2 F.3d 1194, 1198 (9th Cir. 2008) ( Where evidence is susceptible 3 to more than one rational interpretation, the ALJ's decision 4 should be upheld. ) (quoting Burch v. Barnhart, 400 F.3d 676, 679 5 (9th 6 evidence in the record, but only evidence that is significant or 7 probative. 8 1012 (9th Cir. 2006). Cir. 2005)). An ALJ need not address every piece of See Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 9 Here, 10 Plaintiff asserts that the ALJ did not properly 11 reject the residual functional capacity set by [Dr. Bazel] and 12 the Court should therefore credit Dr. Bazel s report as true. 13 (MSPC at 5). 14 consideration to Dr. Bazel s prescribed hand restrictions, which 15 included [n]o repetitive pushing or pulling with hand/wrist, 16 [and] no repetitive finger/wrist motion. 17 also 18 October 22, 2008, advised Plaintiff to make only limited use of 19 her hands. 20 Barnhart, 379 F.3d 587 (9th Cir. 2004), for the proposition that 21 limitations identified by a treating physician, and not properly 22 rejected by 23 alleges that 24 caused her to pose faulty hypotheticals to VE Ey.22 25 Plaintiff s Complaint focuses on the part of Dr. Bazel s report relating to Plaintiff s hand limitations, but Dr. Bazel also opined on Plaintiff s limitations due to her lumbar condition. (AR 402). These included [n]o lifting beyond 20 lbs., no bending, stooping, climbing, prolonged standing or walking, no driving over 60 minutes. (Id.). The ALJ included 26 27 28 Plaintiff suggests that the ALJ failed to give due observes that Dr. Bazel s After (MSPC at 5; AR 557). an ALJ, the should ALJ s be failure 22 29 Care Plaintiff Instructions of Plaintiff cites Benecke v. credited to (AR 402). as credit true. Dr. Plaintiff Bazel s report 1 The 2 appropriately 3 inapposite. 4 proceedings 5 hypothetical 6 established by improperly discredited testimony would contribute 7 to waste and delay and would provide no incentive to the ALJ to 8 fulfill her obligation to develop the record. 9 at Court 595. is satisfied, credit Dr. however, Bazel s that report, the and ALJ did Benecke is Benecke held that [r]equiring remand for further any time the question In the vocational addressing present case, expert the the did not precise ALJ answer a limitations Benecke, 379 F.3d did improperly not 10 discredit Dr. Bazel s December 9, 2008 Permanent and Stationary 11 Report. 12 Plaintiff s treating physician, cited his report repeatedly and 13 at length, compared his treatment notes with Dr. Hoffman s, and 14 specifically 15 repetitive finger/wrist motion. 16 restriction 17 suggests the ALJ discredited. (MSPC at 3; Plaintiff s Response 18 to Support 19 Response at 2)). 20 finger/wrist motion was consistent with frequent (not constant) 21 fingering. To the contrary, cited is Dr. ALJ Bazel s precisely Defendant s the Memorandum the in identified work Dr. Bazel restrictions (AR 34-35, 402). recommendation of no The latter that Answer of as Plaintiff ( Plaintiff s The ALJ found that Dr. Bazel s no repetitive (AR 35). 22 Moreover, 23 the ALJ gave due consideration to Dr. Bazel s 24 entire report, which not only recommended that Plaintiff avoid 25 repetitive hand motions but also noted definite improvement in 26 her lumbar and upper extremity condition and the complete 27 28 these limitations, with minor variations questioned, in her RFC. (AR 32). 30 Plaintiff has not 1 resolution of her neuropathy. 2 Bazel s 3 extremity studies)). 4 found 5 course of 2008, leaving her ready to return to modified duty at 6 work. 7 at an appropriate RFC. review of Plaintiff s (AR 401). January (AR 34; see also AR 399-400 (Dr. and July 2008 lumbar and upper The full record reveals that Dr. Bazel condition dramatically improved over the Crediting his report as true, the ALJ arrived 8 9 B. The ALJ Arrived At A Valid RFC Based On The Complete Record, And The Vocational Expert Testimony Was Proper 10 11 12 The ALJ concluded that Plaintiff had an RFC that included 13 the ability to frequently handle and finger with both hands. 14 (AR 32). 15 considerable time to questioning VE Allan Ey as to the meaning of 16 Dr. Bazel s restriction on repetitive fingering. 17 Plaintiff s counsel appears to have been concerned that an RFC 18 permitting 19 with the repetitive hand motions Dr. Bazel counseled Plaintiff 20 to 21 identical meanings in this context. avoid. At the Second Hearing, Plaintiff s counsel devoted frequent However, handling and frequent and fingering was repetitive (AR 87-89). inconsistent do not have 22 Under Social Security Ruling ( SSR ) 83-10, [f]requent 23 SSR 24 means occurring from one-third to two-thirds of the time. 25 83-10, 1983 WL 31251 (1983). 26 occurring from very little up to one-third of the time. 27 The 28 performed primarily in one location, with the ability to stand same Ruling notes that Occasionally, by contrast, means [m]any 31 unskilled light jobs Id. are 1 being more critical than the ability to walk. 2 of arms and hands to grasp and to hold and turn objects, and they 3 generally do not require use of the fingers for fine activities 4 to 5 light jobs require more standing or walking. the extent required in much sedentary They require use work, even though Id. 6 The Agency thus routinely uses frequent and occasional 7 8 to 9 categories of light and sedentary work, but does not employ describe different physical movements associated with its 10 the term repetitive in the same way. 11 concluded that frequent and repetitive are not synonymous.23 12 See, e.g., Gallegos v. Barnhart, 99 Fed. Appx. 222, 224 (10th 13 Cir., 2004)( frequent and repetitive are not synonymous, and 14 ALJ s 15 frequent reaching, handling or fingering was not inconsistent 16 with 17 LeFevers v. Comm r, 476 Fed. Appx. 608, 611 (6th Cir. 2012)( In 18 ordinary nomenclature, a prohibition on repetitive lifting does finding that physician s plaintiff could recommendation Courts have generally perform against jobs repetitive requiring actions); 19 The Ninth Circuit has noted that frequent and repetitive are not the same. Gardner v. Astrue, 257 Fed. Appx. 28, 30 n.5 (9th Cir. 2007). Furthermore, the court found that repetitively in this context appears to refer to a qualitative characteristic--i.e., how one uses his hands, or what type of motion is required whereas constantly and frequently seem to describe a quantitative characteristic--i.e., how often one uses his hands in a certain manner. Under this reading, a job might require that an employee use his hands in a repetitive manner frequently, or it might require him to use his hands in a repetitive manner constantly. Id. (emphasis in original). As such, the court theorized, someone who cannot not use his hands constantly in a repetitive manner, but can use his hands frequently in a repetitive manner, could perform the jobs of electronics worker and marker. Id. (emphasis in original). 23 20 21 22 23 24 25 26 27 28 32 1 not preclude a capacity for frequent lifting, and non-Agency 2 doctor s use of term repetitive was not inconsistent with RFC 3 for light work); McCarter v. Colvin, 2014 WL 4908990 (D. Kan., 4 Sept. 5 fingering with the right hand and no repetitive use by the right 6 hand is not erroneous, as no repetitive use and frequent use 7 are synonymous )(emphasis added). 30, 2014)( ALJ s hypothetical of frequent handling and 8 The Court therefore disagrees with Plaintiff s contention 9 the ALJ accepted RFC inconsistent against repetitive 11 recommendation 12 above, the ALJ gave ample consideration to Dr. Bazel s entire 13 assessment, which did not specifically bar frequent handling 14 and fingering. 15 relevant 16 frequent and repetitive handling and fingering. 17 record 18 frequent use of the hands -- the standard the ALJ used in her 19 hypotheticals 20 motions. 21 intermittent repetitive activity could involve some breaks, 22 but at times you re doing repetitive types of things. 23 He offered the example of a telephone order taker whose actions 24 are 25 (Id.). 26 hypothetical employee who was restricted from using repetitive 27 (not intermittent repetitive ) hand, finger and wrist motions. 28 (AR 90). hand with Bazel s that motions. As noted The transcript of the Second Hearing, like the case shows an Dr. 10 law, VE -- (AR repetitive Ey does not agreeing might show with require 88-89)(emphasis while entering any basis Plaintiff s intermittent added). data, but The not for equating At most, the suggestion repetitive VE at opined that hand that (AR 88). other times. Plaintiff s counsel then asked the VE to consider a The VE opined that such a person could not do the 33 1 alternative work that would have been permissible under two of 2 the ALJ s three hypotheticals. (Id.). 3 Moreover, the ALJ s hypotheticals did not demand that the 4 5 individual perform 6 hypotheticals the ALJ posed to Mr. Ey asked him to consider an 7 individual motions more 8 limited than those described in Dr. Bazel s restrictions. (AR 9 84-86). whose repetitive work hand activities motions. required hand All three As such, they fell within Dr. Bazel s restrictions. The 10 ALJ 11 individual who could do only frequent handling and fingering 12 with both hands, and added a third hypothetical involving an 13 individual who could do no more than occasional handling and 14 fingering. (AR 84-86). 15 of frequent handling and fingering could find alternative work, 16 but one capable of only occasional hand motions could not. 17 (Id.). twice asked Mr. Ey to describe alternative work for an Mr. Ey opined that an individual capable 18 19 In reviewing an ALJ s findings, the court also considers 20 whether her decision is supported by substantial evidence in the 21 record as a whole. 22 properly considered evidence indicating that Plaintiff s symptoms 23 were not as severe as alleged. 24 Dr. Bazel s finding that Plaintiff s condition had dramatically 25 improved following a full course of conservative treatment, with 26 no 27 recommended follow-up treatment that was also conservative, such 28 treatment by an orthopedist. surgery. (AR Aukland, 257 F.3d at 1035. 35). (See AR 34). Plaintiff did (Id.). 34 not Here, the ALJ First, she noted avail herself of Plaintiff did not seek 1 follow-up treatment for CTS from December 2008 until she had a 2 single 3 [E]vidence of conservative treatment is sufficient to discount 4 a 5 Parra 6 Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995)). neurology claimant's v. consultation testimony Astrue, 481 in regarding F.3d 742, November severity 751 2011. of (9th (AR 35). an impairment. Cir. 2007)(citing 7 8 9 Subjective evidence in the record also supports the ALJ s conclusions regarding Plaintiff s credibility. ALJ that she left 10 the 11 problems with [her] hands. 12 Bazel that she was fired after struggling to keep up with her 13 work requirements (which may have related to her hand problems), 14 but also because a new manager . . . came in who had favorites 15 and started to cut back her work hours and give them to [the 16 manager s] 17 prescribed pain medications because they made her sleepy, but did 18 not present evidence that she had requested adjustments to her 19 medications that might have addressed these concerns. 20 63). friends . . her (AR job because (AR 76). 388). she Plaintiff told started having However, she told Dr. Plaintiff avoided taking (AR 33, 21 22 As the ALJ also observed, Plaintiff s testimony as to her 23 daily activities weakened her credibility. 24 could prepare breakfast and dinner, try to pick up light duties 25 around my home, take showers, feed her puppy, and take walks 26 twice a week. 27 make her bed daily, and water her plants. 28 noted that although Plaintiff had difficulty brushing her hair, (AR 289). (AR 33). Plaintiff She was able to do laundry and dishes, 35 (AR 291). The ALJ 1 [i]t was noted at the face-to-face application meeting . . . 2 that 3 writing. 4 ability 5 grip/grasp and pull, is inconsistent with her statement . . . 6 that she needs help opening cans and bottles. 7 although Plaintiff stated in her application that she could only 8 stand or walk for thirty minutes and sit for an hour, she told 9 the ALJ that she could walk longer than sitting, and walked 10 [Plaintiff] did (AR 33). to not have problems using her hands or Similarly, the ALJ reasoned that Plaintiff s remove weeds, around the block for exercise. which requires the ability (Id.). to Finally, (AR 64). 11 When assessing a claimant s credibility, the ALJ must engage 12 13 in a two-step analysis. 14 (9th Cir. 2012). 15 medical evidence of an impairment that could reasonably produce 16 the symptoms alleged. 17 must make specific credibility findings in order to reject the 18 claimant s testimony. 19 techniques 20 reputation for lying, prior inconsistent statements concerning 21 the symptoms, and other testimony by the claimant that appears 22 less 23 failure to seek treatment or to follow a prescribed course of 24 treatment; and (3) the claimant's daily activities. 25 F.3d at 1284; Tommasetti, 533 F.3d at 1039. 26 ALJ considered evidence in all of these categories and rendered 27 specific credibility findings that led her to reject Plaintiff s 28 testimony. than of Molina v. Astrue, 674 F.3d 1104, 1112 First, the ALJ must determine if there is (Id.). (Id.). credibility candid; (2) If such evidence exists, the ALJ The ALJ may consider (1) ordinary evaluation, unexplained 36 or such as the inadequately claimant's explained Smolen, 80 As noted above, the to Dr. Bazel s 1 In 2 report, 3 considering the credibility of Plaintiff s own testimony, the ALJ 4 arrived 5 supported by the record. 6 took 7 experts 8 Plaintiff does not suggest that Mr. Ey, the VE at the Second 9 Hearing, sum, after assessing at care giving other hypotheticals to when made solicit the any full medical that evidence were in the accurate, from VE s error two detailed, additional testimony in answering proved the entire record Tackett, 180 F.3d at 1101. opinions first weight and and The ALJ vocational faulty, ALJ s and valid Accordingly, the VE s testimony was proper and 10 hypotheticals. 11 remand is not justified on this ground. 12 13 VIII. 14 CONCLUSION 15 16 Consistent with the foregoing, IT IS ORDERED that Judgment 17 be entered AFFIRMING the decision of the Commissioner. The Clerk 18 of the Court shall serve copies of this Order and the Judgment on 19 counsel for both parties. 20 21 DATED: October 28, 2014 /S/ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 22 23 24 NOTICE 25 26 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS/NEXIS, WESTLAW OR ANY OTHER LEGAL DATABASE. 27 28 37

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