Lawanda K Tucker v. Michael J Astrue, No. 8:2012cv00296 - Document 16 (C.D. Cal. 2012)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal; IT IS ORDERED that the decision of the Commissioner is AFFIRMED. See order for details. (jy)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 LAWANDA TUCKER, ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, Defendant. No. SACV 12-296-SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Plaintiff brings this action seeking to overturn the decision of 22 the Commissioner of the Social Security Administration (hereinafter the 23 Commissioner or the Agency ) denying her application for Disability 24 Insurance benefits. Plaintiff lodged her complaint with this Court on 25 February 24, 2012. On April 13, 2012, pursuant to 28 U.S.C. § 636(c), 26 the parties consented to the jurisdiction of the undersigned United 27 States Magistrate Judge. 28 On August 20, 2012, Plaintiff filed a memorandum in support of her Defendant filed its Answer on July 19, 2012. complaint ( Complaint Memo ). Defendant filed a Memorandum in Support 1 of its Answer on September 14, 2012. 2 filed a Reply. 3 On October 1, 2012, Plaintiff Commissioner is AFFIRMED. For the reasons stated below, the decision of the 4 5 II. 6 PROCEDURAL HISTORY 7 8 On March 24, 2009, Plaintiff filed an application for Disability 9 Insurance Benefits ( DIB ) claiming that she could not work due to 10 severe, disabling adjustment disorder with depression, anxiety, and 11 high blood pressure. 12 claim was denied by the Agency on July 9, 2009 and again upon 13 reconsideration on September 11, 2009. 14 requested a hearing, which was held before an administrative law judge 15 ( ALJ ) on December 15, 2010. 16 counsel and testified. (Administrative Record ( AR ) 166-173). (AR 93-94). (AR 71-92). The Plaintiff then Plaintiff appeared with 17 18 A vocational expert also testified. On February 24, 2012, the ALJ 19 issued a decision denying Plaintiff benefits. 20 sought review of the ALJ s decision before the Appeals Council. 21 14). 22 request for review, rendering the ALJ s decision the final decision of 23 the Commissioner. 24 February 24, 2012. (AR 1-6). \\ 28 (AR Plaintiff filed the instant Complaint on \\ 27 Plaintiff On December 30, 2011, the Appeals Council denied Plaintiff s 25 26 (AR 27). \\ 2 1 III. 2 FACTUAL BACKGROUND 3 4 Plaintiff was born on October 9, 1964 and was forty-six years old 5 at the time of the hearing. 6 has an AA degree in psychology, and has past work experience as a 7 prison 8 Plaintiff asserts that she has Post Traumatic Stress Disorder (PTSD), 9 depression, anxiety, and high blood pressure. (AR 167). correctional (AR 174). officer and She graduated from high school, credit clerk. (AR 200, 373). Plaintiff s 10 PTSD, depression, and anxiety began after she suffered a sexual assault 11 in 1996. 12 approved for state disability retirement benefits on October 9, 1997 13 and elected to receive $1,546.18 in monthly benefits. (AR 373). Based on a claim of depression, Plaintiff was (AR 135-37). 14 15 Plaintiff returned to work in 2002 and apparently maintained 16 steady employment for five years, i.e., until 2007. 17 However, 18 February 1, 2009. 19 2007, claiming that her disability prevented her from maintaining 20 employment. Plaintiff also received (AR 145). retirement (AR 154, 178). benefits as late as Plaintiff ceased working on March 1, (AR 167). 21 22 According to Plaintiff s medical records, she sought treatment 23 primarily from Dr. Rosen. 24 2007 and the filing of Plaintiff s DIB claim, Dr. Rosen examined 25 Plaintiff for conditions including shingles, possible infertility, 26 chest pain, dyspnea, wheezing, headaches, dizziness, and problems 27 balancing. 28 that Plaintiff s symptoms where not consistently present during that (AR 396-474). (AR 452, 455, 461, 466-67). 3 At various points between Dr. Rosen s reports indicate 1 period. At times, Plaintiff exhibited symptoms of depression, anxiety, 2 and high irritability. 3 examinations, she exhibited neither depression nor anxiety. 4 On July 27, 2009, at Plaintiff s request, Dr. Rosen reduced the dosage 5 of Plaintiff s anxiety medication. 6 Plaintiff 7 liability. 8 discontinued the medication. 9 treatment with Dr. Rosen beyond this point. had [n]o (AR 453, 456, 458). However, during other (AR 332). psychological (AR 450). Dr. Rosen noted that symptoms and no emotional (AR 447). Further, on November 23, 2009, Plaintiff (AR 445). There is no record of 10 11 Because Plaintiff was not receiving psychotherapy for her mental 12 health complaints when she applied for DIB, the Agency referred her to 13 Dr. Rajadhyasksha ( examining physician ) for psychiatric evaluation. 14 (AR 23). 15 PTSD, severe, (and) depressive disorder . . . . 16 Rajadhyasksha reported that Plaintiff has never been to a psychiatrist. 17 (Id.). 18 alert, cooperative, oriented to person, place and time. 19 Further, Plaintiff had spontaneous speech [that was] coherent and 20 relevant but also presented with a [m]ood [that was] very depressed, 21 anxious with tearful affect. 22 [h]er concentration was adequate and that she was able to stay 23 focused and was not easily distracted. (Id.). 24 current active suicidal or homicidal ideations. (Id.). She appeared 25 to be of average intelligence, evidenced [good] general knowledge, 26 and appeared to keep up with current events in the United States. 27 (Id.). 28 with some difficulty. On June 23, 2009, Dr. Rajadhyasksha diagnosed Plaintiff with (AR 373-75). Dr. Dr. Rajadhyasksha also reported that Plaintiff presented as (Id.). (374). Dr. Rajadhyasksha noted that Plaintiff also denied She was also able to do serial sevens and simple calculations Her memory was fair as tested by recall of 3 4 1 items after 5 minutes, intact for remote events, and fair for 2 recent events. (Id.). Dr. Rajadhyasksha nevertheless concluded that, 3 at the time of the June 23, 2009 examination, Plaintiff will have 4 difficulty getting along with her coworkers, dealing with supervisors 5 and maintaining a schedule . . . . 6 2009, treating physician Dr. Rosen observed that Plaintiff showed no 7 psychological symptoms, emotional liability, or sleep disturbances. 8 Dr. Rosen also reported that Plaintiff s other conditions, including 9 shingles, wheezing, nausea, osteoarthritis of the knee, and thoracic 10 spine were resolved. (AR 375). However, on July 27, (AR 446-51). 11 12 Finally, Dr. Balson ( non-examining physician ) prepared a case 13 analysis on July 7, 2009. 14 medical records show that she has no problems with personal care, 15 although she has some difficulty sleeping and does not handle stress 16 well. 17 does not need reminders to take medication, completes household chores 18 without encouragement, goes out alone, drives, and has good relations 19 with family and friends. 20 with the third party function report completed by Plaintiff s husband. 21 (AR 194-99). 22 able to pay bills, count change, handle a savings account, and use a 23 checkbook. (AR 388). Dr. Balson concluded that Plaintiff s However, Dr. Balson also concluded that Plaintiff (AR 388). These findings are consistent In that report, Plaintiff s husband added that she is (AR 195). 24 25 26 27 28 5 1 IV. 2 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 3 4 To qualify for disability benefits, a claimant must demonstrate 5 a medically determinable physical or mental impairment that prevents 6 him from engaging in substantial gainful activity1 and that is expected 7 to 8 twelve months. 9 (citing 42 U.S.C. § 423(d)(1)(A)). result in death or to last for a continuous period of at least Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) The impairment must render the 10 claimant incapable of performing the work he previously performed and 11 incapable of performing any other substantial gainful employment that 12 exists in the national economy. 13 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Tackett v. Apfel, 180 F.3d 1094, 1098 14 15 16 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are: 17 18 (1) Is the claimant 19 gainful activity? 20 disabled. presently engaged in substantial If so, the claimant is found not If not, proceed to step two. 21 22 (2) Is the claimant s impairment severe? 23 claimant is found not disabled. 24 If not, the three. (3) 25 If so, proceed to step Does the claimant s impairment meet or equal one of a 26 27 28 1 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay or profit. 20 C.F.R. §§ 404.1510, 416.910. 6 1 list of specific impairments described in 20 C.F.R. 2 Part 404, Subpart P, Appendix 1? 3 is found disabled. (4) 4 If so, the claimant If not, proceed to step four. Is the claimant capable of performing his past work? 5 If so, the claimant is found not disabled. 6 proceed to step five. (5) 7 Is the claimant able to do any other work? 8 claimant is found disabled. 9 If not, If not, the If so, the claimant is found not disabled. 10 11 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 12 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett); 20 C.F.R. §§ 13 404.1520(b) - 404.1520(f)(1) & 416.920(b) - 416.920(f)(1). 14 15 The claimant has the burden of proof at steps one through four, 16 and the Commissioner has the burden of proof at step five. Bustamante, 17 262 F.3d at 953-54 (citing Tackett). 18 meets his burden of establishing an inability to perform past work, the 19 Commissioner must show that the claimant can perform some other work 20 that exists in significant numbers in the national economy, taking 21 into 22 education, and work experience. 23 Reddick, 157 F.3d at 721; 20 C.F.R. §§ 404.1520(f)(1), 416.920(f)(1). 24 The Commissioner may do so by the testimony of a vocational expert or 25 by reference to the Medical-Vocational Guidelines appearing in 20 account the claimant s If, at step four, the claimant residual functional capacity,2 age, Tackett, 180 F.3d at 1098, 1100; 26 27 28 2 Residual functional capacity is what [one] can still do despite [his] limitations and represents an assessment based upon all of the relevant evidence. 20 C.F.R. §§ 404.1545(a), 416.945(a). 7 1 C.F.R. Part 404, Subpart P, Appendix 2 (commonly known as the Grids ). 2 Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001) (citing 3 Tackett). 4 nonexertional limitations, the Grids are inapplicable and the ALJ must 5 take the testimony of a vocational expert. 6 864, 869 (9th Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 7 (9th Cir. 1988)). When a claimant has both exertional (strength-related) and Moore v. Apfel, 216 F.3d 8 9 V. 10 THE ALJ S DECISION 11 12 The ALJ employed the five-step sequential evaluation process 13 discussed above. At the first step, the ALJ determined that Plaintiff 14 had not engaged in substantial gainful activity since the alleged onset 15 date of March 1, 2007. 16 that Plaintiff has medically determinable severe impairments of PTSD, 17 depression, and anxiety that have significantly limited Plaintiff s 18 ability to perform basic work functions within the meaning of 20 C.F.R. 19 § 404.1521. (AR 22). At the second step, the ALJ found (AR 19). 20 21 At the third step, the ALJ found that Plaintiff does not have an 22 impairment or combination of impairments that meet or medically equal 23 any of the impairments appearing in the Listing of Impairments set 24 forth in 20 C.F.R. § 404, Subpart P, Appendix 1. 25 noted that this finding is [c]onsistent with a lack of marked medical 26 signs or . . . findings representing [twelve continuous months of 27 disability] . . . . (Id.). 28 8 (AR 23). The ALJ 1 Before proceeding to the fourth step, the ALJ considered 2 Plaintiff s RFC. 3 extent to which the symptoms can be reasonably accepted as consistent 4 with the record. (AR 24). Plaintiff alleged that she cannot work, has 5 severe ongoing symptoms of PTSD . . . that force her to go to a dark 6 place until she feels like she s in a black hole. (AR 25). 7 as the ALJ observed, Plaintiff has maintained a relatively normal 8 personal life, as evidenced by her fourteen-year marriage and her 9 pregnancy in 2010. In doing so, the ALJ considered all symptoms and the (Id.). Yet, The ALJ also noted that while Plaintiff 10 describes her daily activities as only watching TV, eating, and 11 sleeping, the third-party function report submitted by her husband 12 evidences that she is able to prepare her own meals and only has 13 difficulty with large meals. 14 further noted that Plaintiff acknowledged she is capable of clean[ing] 15 her bathroom, mak[ing] her bed, [and] go[ing] outside about 3-4 times 16 a week unaccompanied. 17 shops for groceries, pays bills, and speaks with her mother and sister 18 on the phone every other day. 19 time, do the laundry, and attend church services regularly. 20 The 21 capacity ( RFC ) that would allow her to perform simple routine and 22 repetitive work tasks in a low-stress work environment-that is, one 23 with no more than occasional changes in the work setting or decision- 24 making required. 25 around employees throughout the workday but should not need more often 26 than 27 interpersonal interactions. ALJ concluded occasionally (Id.). that The ALJ Additionally, Plaintiff drives a car, (Id.). Plaintiff (AR 24). [to] (Id.) (citing AR 192-99). She can walk three miles at a retained a residual (Id.). functional The ALJ also found that Plaintiff can be have conversations (Id.). 28 9 with them or perform 1 At step four, after addressing Plaintiff s functional limitations, 2 the ALJ determined that Plaintiff would be unable to return to her 3 past relevant work . . . . 4 Plaintiff s RFC and on the testimony of the vocational expert, the ALJ 5 found that Plaintiff could perform simple or unskilled work with minor 6 social interaction adjustment for twelve continuous months. 7 Specifically, the ALJ concluded that Plaintiff could perform work 8 existing in significant numbers in the national economy, such as that 9 performed by hospital cleaners or warehouse workers. 10 (AR 26). the ALJ denied Plaintiff s claim. However, at step five, based on (AR 24). (AR 27). Thus, (Id.). 11 12 VI. 13 STANDARD OF REVIEW 14 15 Under 42 U.S.C. § 405(g), a district court may review the 16 Commissioner s decision to deny benefits. The court may set aside the 17 Commissioner s decision when the ALJ s findings are based on legal 18 error or are not supported by substantial evidence in the record as a 19 whole. 20 (citing Tackett, 180 F.3d at 1097); Smolen v. Chater, 80 F.3d 1273, 21 1279 (9th Cir. 1996) (citing Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 22 1989)). Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) 23 24 Substantial evidence is more than a scintilla, but less than a 25 preponderance. Reddick, 157 F.3d at 720 (citing Jamerson v. Chater, 26 112 F.3d 1064, 1066 (9th Cir. 1997)). 27 a reasonable person might accept as adequate to support a conclusion. 28 Id. (citing Jamerson, 112 F.3d at 1066; Smolen, 80 F.3d at 1279). 10 It is relevant evidence which To 1 determine whether substantial evidence supports a finding, the court 2 must consider the record as a whole, weighing both evidence that 3 supports 4 conclusion. 5 F.3d 953, 956 (9th Cir. 1993)). If the evidence can reasonably support 6 either affirming or reversing that conclusion, the court may not 7 substitute its judgment for that of the Commissioner. 8 F.3d at 720-21 (citing Flaten v. Sec y, 44 F.3d 1453, 1457 (9th Cir. 9 1995)). and evidence that detracts from the [Commissioner s] Aukland, 257 F.3d at 1035 (citing Penny v. Sullivan, 2 Reddick, 157 10 11 VII. 12 DISCUSSION 13 14 Plaintiff contends the ALJ erred for two reasons. She first 15 claims that the ALJ failed to adequately consider and fairly interpret 16 the opinions of the treating and examining physicians. (Complaint Memo 17 at 5-9). 18 cited the medical record and based his conclusions on instances where 19 Plaintiff s symptoms were controlled during the relevant time period 20 rather than those where Plaintiff s symptoms were present. (Id. at 7). 21 Plaintiff appears to contend that even though her symptoms were not 22 always 23 underlying conditions were consistently present. (See id. at 8). 24 Plaintiff (I) 25 examining physician s finding that Plaintiff will have difficulty 26 getting 27 maintaining a schedule at this time, Specifically, Plaintiff alleges that the ALJ selectively present also along or severe alleges with her during that the the ALJ coworkers, 28 11 relevant time improperly dealing with period, ignored supervisors her the and (id. at 8) (quoting AR 375), 1 and (ii) presented the vocational expert with a hypothetical that 2 failed to account for such limitations. (Id. at 8-9). 3 4 Second, Plaintiff contends that the ALJ incorporated an incorrect 5 legal standard into the hypothetical presented to the vocational 6 expert. 7 of jobs Plaintiff could perform any job where an essential function 8 of the job description would include interacting with the public. 9 (See Complaint Memo at 11-12; see also AR 8). The ALJ asked the vocational expert to exclude from the list According to Plaintiff, 10 the ALJ s hypothetical erroneously used the concept of essential job 11 function instead of the correct standard of bona fide occupational 12 qualifications. 13 alleges that because the term essential function does not include 14 non-core job functions reasonably necessary for employment in a 15 particular position, the ALJ s hypothetical was overinclusive of the 16 jobs Plaintiff is able to perform. 17 the vocational expert had been asked to identify jobs where interaction 18 with the public is not a reasonably necessary part of the job 19 description, there would be no jobs that someone with her RFC could 20 perform. (Complaint Memo at 10). (Id.). Specifically, Plaintiff Plaintiff contends that if (Complaint Memo at 10-12). 21 22 23 A. The ALJ Provided Clear And Convincing Justification For His Weighing Of The Medical Record 24 25 Plaintiff filed for DIB claiming that she could not work due to 26 severe, disabling adjustment disorder with depression, anxiety, and 27 high blood pressure. 28 Plaintiff did not have a disability that prevented her from engaging (AR 166-173). 12 However, the ALJ found that 1 in simple or unskilled work with minor social interaction adjustment 2 for a period of twelve continuous months. (AR 24). 3 When an ALJ evaluates medical evidence, the opinions of treating 4 5 physicians 6 physician is uniquely situated to know and observe the claimant as an 7 individual. 8 In contrast, the opinions of examining physicians who have been 9 retained by the Agency, though still important, are given less weight. 10 The ALJ may reject the controverted opinion of an examining physician 11 only for specific and legitimate reasons that are supported by 12 substantial evidence. Carmickle v. Comm r, Soc. Sec. Admin., 533 F.3d 13 1155, 1164 (9th Cir. 2008) (quoting Lester v. Chater, 81 F.3d 821, 830- 14 31 (9th Cir. 1995)). Reports from an examining physician, if supported 15 by 16 substantial medical evidence and may be relied upon by the ALJ in order 17 to determine the claimant s RFC. Andrews, 53 F.3d at 1041. Where such 18 reports differ from those of the treating physician, the opinion of the 19 examining consultive physician may itself be substantial evidence; 20 however, 21 conflict. clinical are entitled to special weight because the treating Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). tests and observations upon examination, constitute [i]t is then solely the province of the ALJ to resolve the Id. 22 Here, Plaintiff first contends that her medical records contradict 23 24 the ALJ s findings. (Complaint Memo at 5-9). Specifically, she 25 alleges that the ALJ selectively cited her treating physician s reports 26 and 27 evaluation. 28 heavily gave improper weight to the examining physician s June 23, 2009 (Id. at 7). relied on the She argues that the ALJ should not have examining 13 physician s opinion because the 1 examining physician saw Plaintiff just one time, while the treating 2 physician saw Plaintiff multiple times, including on two occasions 3 sandwiching the examining physician s examination. 4 7-8). In sum, Plaintiff contends that the ALJ selectively reviewed her 5 medical 6 Plaintiff s symptoms were controlled during the relevant time period 7 rather than those where her symptoms were present. records and based his conclusions (Complaint Memo at on instances where 8 9 The treating physician s reports support the ALJ s findings. 10 Specifically, 11 continuous months. 12 Plaintiff s 13 continuous months. As the ALJ accurately noted, while Plaintiff s 14 treating found 15 depression, anxiety, and high irritability at various points between 16 2007 and the filing of Plaintiff s DIB claim, the same physician 17 reported that her symptoms were not consistently present during that 18 period. 19 reports further support the ALJ s findings. 20 four 21 Plaintiff s treating physician reported that her mental status exam 22 was normal and that she exhibited [n]o anxiety, no depression, and 23 no sleep disturbances. 24 physician also reported that Plaintiff was [n]ot under stress. 25 (Id.). 26 Plaintiff exhibited anxiety following wildfires that occurred the prior they do not a disability spanning symptoms that were Plaintiff not present exhibited (See AR 22-25; see also AR 450, 453, 456, 458). months after twelve Instead, the reports affirmatively establish that psychological physician evidence Plaintiff s alleged (AR 467). for twelve symptoms of The following On June 7, 2007, roughly disability onset date, At that time, Plaintiff s treating On November 25, 2008, the treating physician reported that 27 28 14 (AR 456).3 1 week, but he did not list any other psychological symptoms. 2 As the ALJ noted, the treating physician also reported as resolved 3 several previous conditions, including 4 AR 23; see also AR 456-57). shingles and wheezing. (See 5 6 On July 17, 2009, Plaintiff saw the treating physician for the 7 following reasons: "Cough . . . irregular periods. . .nausea . . . 8 wants 9 physician reported Plaintiff as having a anxiety disorder, but no to see infertility specialist." (AR 452). The treating 10 depression. (AR 452-54). 11 (AR 453). On July 27, 2009, the treating physician reported that 12 Plaintiff exhibited [n]o pyschological symptoms and no emotional 13 liability. 14 Plaintiff again exhibited signs of depression, anxiety, and dysthymia. 15 (AR 44). (AR 447). He reported Plaintiff as [n]ot depressed. On November 23, 2009, he reported that 16 17 Plaintiff has failed to meet her burden of establishing disability 18 for a continuous period of not less than twelve months. 19 Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (citing Tackett, 180 F.3d 20 at 1098)). 21 treating physician s reports do not evidence that Plaintiff s relevant 22 symptoms were present for the requisite period. 23 show that her symptoms were only sporadically present from the time she 24 filed for DIB to the time of the ALJ s decision. 25 Plaintiff s claim fails to the extent Plaintiff alleges the ALJ s Webb v. The ALJ provided clear and convincing reasons why the The reports instead Accordingly, 26 27 28 3 The Court notes that while depression was not listed on the November 25 report, Plaintiff s treating physician discussed depression and anxiety with Plaintiff at that time. (AR 457). 15 1 decision was against the weight of the evidence because the treating 2 physician s reports evidence a qualifying disability. 3 4 Second, Plaintiff argues that the ALJ s decision was contrary to 5 the consultative physician s findings and that those findings were 6 improperly excluded from the hypothetical provided to the vocational 7 expert. 8 consultative 9 difficulty getting along with her coworkers, dealing with supervisors Specifically, Plaintiff contends that the ALJ ignored the physician s observation that Plaintiff will have 10 and maintaining a schedule at this time. 11 (quoting AR 375). 12 diagnosed her with PTSD, severe, (and) and depressive disorder. 13 (Complaint Memo at 6) (citing AR 375). 14 Plaintiff has PTSD, depression, and anxiety that have significantly 15 limited her ability to perform basic work functions. 16 incorporated this finding into the RFC. (Complaint Memo at 8) Plaintiff stresses that the consultative physician However, the ALJ found that The ALJ also (See AR 24). 17 18 However, the ALJ properly rejected the examining physician s 19 finding that Plaintiff would have difficulty maintaining a regular work 20 schedule, for specific and legitimate reasons. 21 noted, Plaintiff was not taking any psychotropic drugs at the time of 22 the consultive examination. 23 psychotherapy. 24 correctly noted that the treating physician s reports affirmatively 25 showed Plaintiff inconsistently exhibited symptoms before and after the 26 consultative examination. 27 accurately observed that one month after the examining physician s 28 examination, Plaintiff s treating physician reported that Plaintiff (AR 24). As the ALJ correctly Nor was Plaintiff receiving (See AR 23; see also AR 440-41, 437). The ALJ also (See AR 23; see also AR 447, 450). 16 The ALJ 1 demonstrated no psychological symptoms, no emotional liability, and 2 had 3 Additionally, the ALJ singled out several of Plaintiff s activities 4 that 5 Consistent with her daily activities, e.g., taking care of young 6 child, 7 regularly attending church services, and maintaining a stable 14 year 8 marriage, etc., the [ALJ found] that the claimant would have mild 9 restriction in her daily activities . . . . no sleep indicate disturbances. an driving, his ability shopping, opinion the to (See maintain paying third AR 23; a bills, party see regular managing (AR 24). function also work bank AR 447). schedule. accounts, The ALJ further 10 based 11 Plaintiff s husband, in which Plaintiff was described as able to make 12 her own meals, clean her bathroom, make the bed, drive a car, shop for 13 groceries, pay bills and handle bank accounts, speak to her mother and 14 sister on the phone every other day, walk up to three miles at a time, 15 and attend church services. 16 respect to Plaintiff s daily activities are supported by the record. 17 (See AR 194-99, 388). 18 maintain a regular schedule.4 19 ALJ provided specific and legitimate reasons for his weighing of the 20 medical record and his rejection of the consultative physician s 21 conclusion that Plaintiff would have difficulty maintaining a work 22 schedule. 23 at 720-21. (AR 25-26). report submitted by The ALJ s findings with Such activities indicate that Plaintiff can Accordingly, this Court finds that the See Aukland, 257 F.3d at 1035; see also Reddick, 157 F.3d 24 25 26 27 28 4 Although not a basis for this Court s determination, Plaintiff s having maintained steady employment from 2002 to 2007 also suggests that she is able to maintain a regular schedule. (See AR 154, 178). 17 1 B. The ALJ Properly Relied Upon The VE's Testimony 2 3 Plaintiff also contends that the ALJ erred in presenting the 4 vocational expert with a hypothetical that failed to properly describe 5 Plaintiff s RFC. 6 incorporated an 7 presented to the vocational expert. 8 expert to exclude from the list of jobs Plaintiff could perform any 9 job where an essential function of the job description would include Specifically, incorrect Plaintiff legal standard contends into that the the ALJ hypothetical The ALJ asked the vocational (See Complaint Memo at 11-12; see also 10 interacting with the public. 11 AR 87). 12 used the concept of essential job function instead of the correct 13 standard of bona fide occupational qualifications. 14 at 10). 15 does not include non-core job functions reasonably necessary for 16 employment 17 overinclusive of the jobs Plaintiff is able to perform. 18 Plaintiff further alleges that if the vocational expert had been asked 19 to identify jobs where interaction with the public is not a reasonably 20 necessary part of the job description, there would be no jobs that 21 someone with her RFC could perform. 22 disagrees. According to Plaintiff, the ALJ s hypothetical erroneously (Complaint Memo Plaintiff alleges that because the term essential function in a particular position, the ALJ s hypothetical (Id. at 10-12). was (Id.). The Court 23 24 In order for the vocational expert s testimony to constitute 25 substantial evidence, the hypothetical question posed must consider 26 all 27 However, the ALJ is not required to include limitations for which there 28 was no evidence. of the claimant s limitations. Andrews, 53 F.3d at 1044. See Osenbrock, 240 F.3d at 1164-65 (ALJ not bound to 18 1 accept as true the restrictions set forth in hypothetical if they were 2 not supported by substantial evidence). 3 the vocational expert to assume a person of the claimant s age, 4 education, and work experience . . . who has no exertional limitations 5 . . [but] 6 . . 7 jobs that may involve being around employees throughout the work day 8 but 9 interactions. 10 In this case, the ALJ asked is limited to simple tasks; to work that is low-stress . . (AR 86-87). would entail Additionally, the hypothetical was restricted to only (AR 87). occasional conversation and interpersonal The vocational expert testified that such a person could work as a hospital cleaner or warehouse worker. (Id.). 11 12 The record supports the ALJ s first hypothetical. The ALJ 13 properly noted that Plaintiff is able to make her own meals, clean her 14 bathroom, make the bed, drive a car, shop for groceries, pay bills and 15 handle bank accounts, speak to her mother and sister on the phone every 16 other day, walk up to three miles at a time, and attend church 17 services. (See AR 25-26; see also 194-99, 388). The ALJ also properly 18 observed that Plaintiff s medical records only show sporadic depression 19 and anxiety. 20 that Plaintiff had no psychological symptoms at various points after 21 her 22 Nevertheless, Plaintiff contends that using the "essential function" 23 language in the hypothetical prompted the vocational expert to testify 24 that Plaintiff could perform jobs where interaction with the public is 25 an essential job function, which Plaintiff contends is not supported 26 by the evidence. (Complaint Memo at 9-11). Plaintiff appears to allege 27 that if the ALJ asked the vocational expert to exclude jobs where 28 interaction claimed As the ALJ noted, Plaintiff s medical records indicate onset with date. the (See public is 19 AR 24; see reasonably also AR necessary 446-51). without 1 accommodation (Complaint Memo. at 11-12), there would be no jobs that 2 someone with Plaintiff s RFC could perform. 3 not show that Plaintiff is incapable of interaction with the public. 4 Rather, as discussed above, the record shows that Plaintiff interacts 5 with the public on a regular basis. 6 fails. However, the record does Accordingly, Plaintiff s claim 7 8 Further, Plaintiff s claim would have been denied even if the 9 vocational expert had been asked to identify jobs where interaction 10 with the public is not a reasonably necessary part of the job 11 description. 12 expert whether there are any jobs that someone with Plaintiff s 13 limitations could perform in which interaction with the public is not 14 a reasonably necessary element of the job. Specifically, the ALJ asked 15 whether there are job[s] where a person essentially works alone and 16 where the supervisor is not supervising them for any more than a third 17 of the day that a person with Plaintiff s limitations could perform. 18 (AR 88). 19 cleans at night or performs cleaning services . . . . [that is] not 20 interacting with people. 21 that such person could perform night shift work as a hospital room 22 cleaner. 23 restrictive hypothetical, Plaintiff would not be entitled to benefits. 24 Thus, any arguable error in the first hypothetical was harmless error 25 and remand would not result in a different outcome for Plaintiff. 26 such, no remand is required. 27 (9th Cir. 2008) (if ALJ s error was inconsequential to the ultimate 28 nondisability determination, no remand required). In a second hypothetical, the ALJ asked the vocational The ALJ clarified that he was thinking of a person who (AR 89). (AR 88). The vocational expert answered Accordingly, even if the ALJ had used a more As Carmickle v. Comm r, 533 F.3d 1155, 1162 20 1 VIII. 2 CONCLUSION 3 4 Consistent with the foregoing, IT IS ORDERED that the decision of 5 the Commissioner is AFFIRMED. IT IS FURTHER ORDERED that the Clerk of 6 the Court serve copies of this Order and the Judgment herein on counsel 7 for both parties. 8 9 DATED: December 7, 2012. 10 11 12 _______/S/__________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21
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