Glen R. Withrow v. Carolyn W. Colvin, No. 8:2013cv01959 - Document 19 (C.D. Cal. 2015)
Court Description: MEMORANDUM AND OPINION by Magistrate Judge Alka Sagar. For all of the foregoing reasons, this Court affirms the decision of the Administrative Law Judge. (See Order for complete details) (afe)
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Glen R. Withrow v. Carolyn W. Colvin Doc. 19 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 ) No. CV 13-1959-AS ) ) Plaintiff, ) MEMORANDUM OPINION v. ) ) CAROLYN W. COLVIN, ) Acting Commissioner of the Social Security Administration, ) ) ) Defendant. ) ) GLEN R. WITHROW, 12 13 14 15 16 17 18 PROCEEDINGS 19 20 On December 26, 2013, Plaintiff filed a Complaint, pursuant to 21 42 U.S.C. §§ 405(g) and 1383(c), seeking review of the Commissioner’s 22 denial of his application for supplemental social security income 23 (“SSI”). 24 Answer 25 (“A.R.”). 26 proceed before a United States Magistrate Judge. 27 8, 10.) 28 (“Joint Stip.”) setting forth their respective positions on the two to (Docket Entry No. 3.) the Complaint and On May 19, 2014, Defendant filed an the Certified (Docket Entry Nos. 13, 14.) Administrative Record The parties have consented to (Docket Entry Nos. On July 31, 2014, the parties filed a Joint Stipulation 1 Dockets.Justia.com 1 issues relevant to the consideration of Plaintiff’s claim. 2 Entry 3 without oral argument. 4 in Social Security Case” (Docket Entry No. 7). No. 15.) The Court has taken the action under (Docket submission See C.D. Local R. 7—15; “Order re Procedures 5 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 6 7 Plaintiff 8 Glen R. Withrow (“Plaintiff”), former employee and Taco Bell cashier, 10 September 15, 2008, based on 11 mental impairments: depression, anxiety, leg and back problems, and 12 alleged that the onset date of these impairments was September 20, 13 2008. 14 Law 15 Plaintiff and a vocational expert. 16 that he hurt his leg while working at Walmart, and that he received 17 treatment 18 worker’s compensation case for that incident. (A.R. 120, 125.) On 19 May denying 20 application for SSI. (A.R. 302, 322, 383.) Judge 24, (“ALJ”) for his 2012, examined back the following alleged beginning physical and on April 17, 2012, the Administrative the pain ALJ disability Walmart 9 the asserts a record and heard (A.R. 18.) and leg issued a pain in decision testimony from Plaintiff testified conjunction with a Plaintiff’s (A.R. 15—36.) 21 22 The ALJ applied the five-step evaluation process to determine 23 whether Plaintiff was disabled. (A.R. 19—30.) 24 determined not 25 gainful activity.” (A.R. 20.) 26 Plaintiff from 27 impairments: right knee and lumbar sprains/strains; patellofemoral 28 chondromalacia of the right knee; depression; and anxiety. that Plaintiff suffers was the engaged At step one, the ALJ in any “substantially At step two, the ALJ found that following 2 medically determinable (Id.) At 1 step three, the ALJ determined that Plaintiff’s severe impairments 2 did not meet or equal a medical listing found in 20 C.F.R. Part 404, 3 Subpart P, Appendix 1. (A.R. 20.) 4 5 6 Before proceeding to step four, the ALJ found that Plaintiff had the RFC to perform light work with the following limitations: 7 8 9 10 11 12 13 14 15 16 17 [Plaintiff] is able to stand for 6 hours, sit for 6 hours, and walk for 6 hours with the option to sit/stand at will. He should avoid climbing ladders, ropes, and scaffolds, but can occasionally engage in climbing balancing, stooping, kneeling, crouching, and crawling. In addition, the claimant can occasionally utilize a cane for uneven surfaces. He has pain in his back, leg, knee, and abdomen at a moderate level but is or can be controlled by appropriate medication or treatment without significant adverse side effects . . . He would have moderate capability of completing an undisturbed normal workday. (A.R. 22.) The ALJ based the RFC finding in part on Plaintiff’s “routine and conservative” treatment record rendered in connection with his worker’s compensation claim for his knee injury. (A.R. 23.) 18 19 20 21 At step four, the ALJ determined that Plaintiff was unable to return to his past work as a pizza maker/baker, lumberyard worker, stores laborer, or fast food worker. (A.R. 29.) The ALJ made this 22 determination after comparing Plaintiff’s RFC with the requirements 23 of his past relevant work, and hearing testimony from a vocational 24 expert. (A.R. 29.) 25 26 27 At step Plaintiff five, could the perform ALJ the relied on following 28 3 the jobs VE’s testimony identified in that the 1 Dictionary of 2 garment bagger, (3) and production assembler (A.R. 29—30), along with 3 Plaintiff’s age, education, work experience, and RFC, to conclude 4 that the “claimant is capable of making a successful adjustment to 5 other 6 economy.” 7 “not disabled.” work Occupational that exists (See id.) in Titles (“DOT”): significant (1) cashier numbers in the II, (2) national Accordingly, the ALJ found that Plaintiff was (Id.) 8 On October 18, 2013, the Appeals Council denied review of the 9 10 ALJ’s decision. (A.R. 1—6.) 11 STANDARD OF REVIEW 12 13 14 This court reviews the Administration’s decision to determine 15 if: (1) the Administration’s findings are supported by substantial 16 evidence; and (2) the Administration used proper legal standards. 17 Smolen, 18 scintilla, but less than a preponderance.” 19 F.3d 1035, 1039 (9th Cir. 1995). 20 evidence supports a finding, “a court must consider [] the record as 21 a 22 detracts from the [Commissioner’s] conclusion.” 23 157 F.3d 715, 720 (9th Cir. 1998). 24 reasonably 25 conclusion, [a] court may not substitute its judgment for that of the 26 ALJ.” 27 Cir. 2004). 80 whole, F.3d at weighing support 1279. both “Substantial is more than a Andrews v. Shalala, 53 To determine whether substantial evidence either evidence that supports and evidence that Reddick v. Chater, As a result, “[i]f evidence can affirming or reversing the ALJ’s Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th 28 4 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 1 2 “Social Security disability benefits claimants have the burden 3 4 of proving disability.” 5 F.3d 1380, 1380 (9th Cir. 1985). A claimant is disabled if he has 6 the substantial 7 reason 8 impairment...which 9 continuous “inability of to any Bellamy v. Sec’y Health & Human Serv., 755 engage in any medically has period 423(d)(1)(A). determinable or lasted of In not less order to can expected 12 determine activity physical be than gainful or mental last to months.” whether by for 42 a a U.S.C. 10 § claimant is 11 disabled, ALJs follow a five-step process set forth in 20 C.F.R. 12 § 404.1520(a)(4). 13 one through four.” 14 2007). “The claimant bears the burden of proving steps Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 15 16 At step one, the ALJ must determine whether or not the claimant 17 is actually engaged in any “substantial gainful activity,” as defined 18 by 19 evaluation continues to step two. 20 C.F.R. § 404.1572. If claimant is not so engaged, the See 20 C.F.R. § 404.1520(a)(4)(i). 20 At step two, the ALJ determines whether the claimed physical or 21 22 mental impairments are severe. 23 determining severity, “the ALJ must consider the combined effect of 24 all 25 function, without 26 severe.” Smolen 27 (citing 42 U.S.C § 423(d)(2)(B)). 28 unless the evidence “establishes a slight abnormality that has ‘no of the claimant’s regard v. 20 C.F.R. § 404.1520(a)(4)(ii). impairments to Chater, on whether 80 F.3d [his each 1273, or] alone 1290 her was (9th When ability to sufficiently Cir. 1996) Impairments are considered severe 5 1 more than a minimal effect on an individual’s ability to work.’” 2 at 3 1988)). 4 medically severe impairment, the ALJ proceeds to the next step in the 5 sequence.” 6 20 C.F.R. § 404.1520(a)(4)(ii). 1290 (quoting “[I]f Yuckert the ALJ v. Bowen, concludes 841 that F.2d the 303, 306 claimant (9th does Id. Cir. have a Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005); See 7 At step three, the ALJ considers whether the claimant’s severe 8 9 impairments are disabling. 20 C.F.R. § 404.1520(a)(4)(iii). The 10 claimant is considered disabled if his purported conditions meet or 11 are medically equivalent to a listing found in 20 C.F.R. Part 404, 12 Subpart P, Appendix 1. 13 Cir. 2005). 14 impairment in appendix 1 if it is at least equal in severity and 15 duration 16 404.1526. 17 rather 18 regarding “functional problems.” 19 1100 (9th Cir. 1999) (citing 20 C.F.R. § 404.1526). to Burch v. Barnhart, 400 F.3d 676, 679 (9th “[An] impairment is medically equivalent to a listed the criteria of any listed impairment.” 20 C.F.R. “Medical equivalence must be based on medical findings[]” than “[a] generalized assertion” or opinion testimony Tackett v. Apfel, 180 F.3d 1094, 20 21 If the ALJ concludes that the claimant is not disabled at step 22 three, the ALJ moves to step four and considers whether the claimant 23 can return to his past relevant work. 24 C.F.R. § 404.1520(a)(4)(iv). 25 claimant’s 26 § 404.1520(a)(4)(iv). 27 do 28 relevant medical and other evidence in [the] case record.” despite Residual Burch, 400 F.3d at 679; See 20 In order to do so, the ALJ determines Functional Capacity (“RFC”). 20 C.F.R. A claimant’s RFC is “what [claimant] can still [claimant’s] limitations,” 6 and is “based on all the 20 C.F.R. 1 416.945(a)(1). If the claimant’s RFC dictates that he can return to 2 his past relevant work, he is not considered disabled. 3 F.3d at 679. Burch, 400 4 If the claimant proves in step four that he cannot return to his 5 6 past relevant work, the ALJ proceeds to step five. 20 C.F.R. 7 § 404.1520(a)(4)(v). 8 Secretary to show that the claimant can do other kinds of work.” 9 Embrey v. Bowden, 849 F.2d 418, 422 (9th Cir. 1988). At step five “the burden of proof shifts to the At this point, 10 ALJs “can call upon a vocational expert to testify as to: (1) what 11 jobs the claimant, given his or her [RFC], would be able to do; and 12 (2) the availability of such jobs in the national economy.” 13 180 F.3d at 1101. 14 any 15 § 404.1520(a)(4)(v). available Tackett, If the claimant does not have the RFC to work in jobs, he is considered disabled. 20 C.F.R. 16 PLAINTIFF’S CONTENTIONS 17 18 19 Plaintiff contends that the ALJ: (1) erred in relying on the 20 VE’s testimony because it purportedly conflicts with agency policy 21 and responds to incomplete hypothetical questions; and (2) improperly 22 assessed Plaintiff’s ability to stand and walk.1 23 24 25 1 26 27 Although the Parties’ Joint Stipulation also included a third claim – whether the ALJ properly considered the testimony of Plaintiff – the parties did not brief this issue. See Joint Stip. (Docket Entry No. 15). 28 7 DISCUSSION 1 2 After consideration of the record as a whole, the Court finds 3 4 that the Commissioner’s findings are supported 5 by substantial evidence and are free from material2 legal error. 6 7 A. Substantial Evidence Supports the ALJ’s Conclusion 8 Regarding Plaintiff’s Ability to Stand and Walk 9 10 In evaluating medical opinions, the case law and regulations 11 distinguish among the opinions of three types of physicians: 12 those who treat the claimant (treating physicians); (2) those who 13 examine but do not treat the claimant (examining physicians); and (3) 14 those who neither examine nor treat the claimant (nonexamining or 15 reviewing physicians). 16 416.927; see also Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). 17 Generally, 18 weight than those of other physicians, because treating physicians 19 are employed to cure and therefore have a greater opportunity to know 20 and observe the claimant. 21 2007); Smolen, 80 F.3d at 1285. the (1) See 20 C.F.R. §§ 404.1502, 404.1527, 416.902, opinions of treating physicians are given greater Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 22 23 24 25 26 27 When a treating or examining doctor’s opinion is not contradicted by some evidence in the record, it may be rejected only 2 The harmless error rule applies to the review of administrative decisions regarding disability. See McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (stating that an ALJ’s decision will not be reversed for errors that are harmless). 28 8 1 for “clear and convincing reasons.” See Carmickle v. Commissioner, 2 533 F.3d 1155, 1164 (9th Cir. 2008) (quoting Lester, 81 F.3d at 830- 3 31). 4 by other evidence, the ALJ must provide “specific and legitimate 5 reasons” supported by substantial evidence to properly reject it. 6 Lester, 81 F.3d at 830-31 (citing Andrews v. Shalala, 53 F.3d 1035, 7 1043 (9th Cir. 1995)); see also Orn, 495 F.3d at 632-33; Soc. Sec. 8 Ruling 96-2p. Where, as here, a treating physician’s opinion is controverted 9 Plaintiff 10 contends reasons for that the ALJ 11 legitimate rejecting 12 consultative and treating physicians. 13 did certain not give opinions specific of and below, the Court does not agree. (A.R. 18—19.) Plaintiff’s As set forth 14 Dr. Piasecki 15 16 Plaintiff purportedly sustained a knee injury at work in 1997 17 18 and was reinjured while working in 2008. 19 September 2009, Plaintiff’s treating physician, Jack O. Piasecki, MD, 20 prepared a “Permanent and Stationary Report” for Plaintiff’s worker’s 21 compensation claim. 22 with 23 musculoligamentous 24 posterior 25 knee; and depression. 26 right-sided limp using a cane, lumbar spine tenderness and spasm with 27 movement, and an inability to independently stand on the right leg. 28 (A.R. 690.) (A.R. 688.) musculoligamentous strain strain hamstrings; and (A.R. 492, 659.) In Dr. Piasecki diagnosed Plaintiff and sprain sprain patellofemoral (A.R. 691.) of of the the lumbar right chondromalacia of spine; button the and right Dr. Piasecki observed a marked Dr. Piasecki also noted that Plaintiff’s right knee was 9 1 stable, that he had a full range of motion in his knee, no effusion, 2 and a negative McMurray’s test.3 3 opined that Plaintiff should avoid heavy lifting and climbing, and 4 needed the option to sit and stand at will. (A.R. 690.) Thus, Dr. Piasecki (A.R. 692.) 5 In 6 October 2010, Dr. Piasecki performed a re-evaluation of 7 Plaintiff and concluded that the diagnosis expressed in the September 8 2009 permanent and stationary report remained unchanged. 9 640.) 10 (A.R. 638, An MRI scan of Plaintiff’s right knee was completely normal. (A.R. 640.) 11 12 13 With respect to Dr. Piasecki’s opinions, the ALJ stated the following: 14 25 In the context of workers’ compensation law, an opinion [that] a person is “permanent and stationary” means the person has reached a point of “maximum medical improvement” after receiving appropriate treatment. This is not the same criteria used to determine disability under the Social Security Act. Therefore, the conclusion by a physician that a claimant’s condition is “permanent and stationary” in the context of a workers’ compensation case is not relevant with regard to an application under the Social Security Act and therefore no weight is afforded. Dr. Piasecki also opined the claimant was unable to perform his past relevant work in the fast food industry, which the undersigned notes is an issue reserved to the Commissioner (20 C.F.R. 416.1527(e)(1)). Moreover, this physician asserted that claimant should avoid heavy lifting and climbing, and needed the option to sit and stand at will. Although the avoidance of heavy lifting is quite vague, it is emphasized that the restrictions indicated by Dr. 26 3 15 16 17 18 19 20 21 22 23 24 27 28 A McMurray’s test is used to determine whether there is an inner meniscal tear. See Meniscus Tears, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ency/article/001071.htm (last visited Dec. 29, 2014). 10 1 Piasecki are consistent with those determined decision. Therefore partial weight is accorded. in this 2 3 (A.R. 26.) 4 5 Plaintiff contends that the ALJ failed to address Dr. Piasecki’s 6 opinion that 7 (Joint Stip. 8 Piasecki’s findings were based on the criteria used for evaluating a 9 worker’s compensation claim which differ from the criteria used for a Plaintiff 18.) was not However, able the to stand ALJ on properly the right noted leg. that Dr. 10 finding of disability under the Social Security Act.. 11 Colvin, No. ED CV 13-1199-SP, 2014 WL 2711800, at *6 (C.D. Cal. June 12 12, 2014); see also 20 C.F.R. § 404.1504. 13 accorded 14 sit/stand restrictions in determining Plaintiff’s RFC. partial weight to Dr. Rodriguez v. Nevertheless, the ALJ Piasecki’s lifting/climbing and (A.R. 26.) 15 16 17 The Court finds that the ALJ provided specific and legitimate reasons for partially discounting the opinions of Dr. Piasecki. 18 19 Dr. Baird 20 21 Robert 22 Plaintiff’s 23 February 2009. 24 probable 25 spasticity (right greater than left), and no appreciable right knee 26 joint pathology. 27 be restricted from “standing more than 15 minutes and walking more Baird, M.D., worker’s an compensation (A.R. 503—08.) sciatica of independent the examined examiner for Plaintiff in Dr. Baird diagnosed Plaintiff with right (A.R. 506.) case, medical leg, bilateral lower extremity Dr. Baird recommended that Plaintiff 28 11 1 than 10 minutes per hour,” which he specified in a separate form as 2 one hour of standing and one hour of walking in a workday. 3 507, 536.) 4 accordance with the Department of Labor Guidelines, and concluded the 5 following: (A.R. Dr. Baird evaluated Plaintiff’s physical capacities in 6 7 8 9 10 [Plaintiff] is able to sit for eight hours out of an eighthour day, stand for brief periods only, walk for brief periods only, climb one flight of stairs occasionally, lift up to 10 pounds occasionally, carry up to 10 pounds occasionally, pull up to 25 pounds occasionally, and bend, squat, twist, and use upper extremities in an unrestricted fashion. 11 12 (A.R. 507.) Dr. Baird stated that this qualified Plaintiff for 13 sedentary work under the DOL guidelines. (A.R. 507.) 14 The ALJ discounted Dr. Baird’s assertions regarding Plaintiff’s 15 standing and walking limitations: 16 17 18 19 20 21 22 23 24 25 26 27 28 The undersigned affords [Dr. Baird’s] opinion partial weight because it is generally supported by the medical evidence of record and the opinions of other examining physicians. However, some of Dr. Baird’s assertions are somewhat vague and imprecise, such as the restriction of standing and walking for only brief periods. Dr. Baird did not provide the number of hours the claimant could perform these tasks and therefore, Dr. Baird’s assertions in this regard are without support and afforded little weight. Furthermore, the undersigned notes Dr. Baird’s additional restrictions that the claimant could stand for 1 out of 8 hours, walk for 1 out of 8 hours, drive for 2 out of 8 hours remains unsupported by the evidence of record, including claimant’s own statements. Therefore, the standing and walking limitations are afforded little weight, and Dr. Baird’s opinion on the whole is afforded partial weight. (A.R. 24—25.) 12 An ALJ “need not accept the opinion of any physician, including 1 2 a treating physician, 3 inadequately supported by clinical findings.” 4 278 F.3d 947, 957 (9th Cir. 2002); 20 C.F.R. § 404.1527(d)(2) (“If we 5 find that a treating source’s opinion . . . is well-supported . . . 6 and not inconsistent with the other substantial evidence in your case 7 record, we will give it controlling weight”). Additionally, an ALJ 8 may limitations 9 supported by any findings” where there is “no indication in the properly discount if a that opinion treating is brief, conclusory and Thomas v. Barnhart, physician’s as “not 10 record what the basis for these restrictions might be.” 11 Massanari, 261 F.3d 853, 856 (9th Cir. 2001); see also 20 C.F.R. § 12 404.1527(c)(2); Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 13 692-93 (9th Cir. 2009) (contradiction between a treating physician’s 14 opinion and his treatment notes constitutes a specific and legitimate 15 reason for rejecting the treating physician’s opinion); Bayliss v. 16 Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (contradiction between 17 treating 18 rejection of assessment); see also Johnson v. Shalala, 60 F.3d 1428, 19 1432 (9th Cir. 1995) (ALJ properly rejected physician’s determination 20 where 21 documentation”). it physician’s was assessment “conclusory and and clinical unsubstantiated by Rollins v. notes justifies relevant medical 22 23 Here, the ALJ noted that Dr. Baird’s objective findings fail to 24 support his opinions regarding Plaintiff’s standing and walking 25 limitations. 26 history of significant knee pain, Dr. Baird found no evidence of an 27 intrinsic knee joint injury. 28 Plaintiff’s Although Plaintiff came to Dr. Baird’s office with a motor strength (A.R. 506.) was 5/5 13 in all Dr. Baird observed that muscle groups of the 1 bilateral lower extremities. (A.R. 505.) Plaintiff’s straight leg 2 raise was positive at 55 to 60 degrees. 3 Plaintiff’s lumbar spine flexion and extension was limited due to 4 pain, but also stated that Plaintiff might benefit from over the 5 counter analgesics or nonsteroidal anti-inflammatory drugs. 6 507.) 7 prolonged 8 examination room for 20 to 30 minutes without getting up, moving 9 around, or complaining of pain. (Id.) Dr. Baird noted that (A.R. Additionally, although Plaintiff complained of difficulty with sitting, Dr. Baird noted that Plaintiff (A.R. 507.) sat in an Thus, Dr. Baird’s 10 restrictions that Plaintiff could stand or walk for 1 out of 8 hours 11 are not supported by his objective findings. 12 13 14 Accordingly, the ALJ provided specific and legitimate reasons for partially discounting the opinions of Dr. Baird. 15 16 Dr. Chung 17 18 In January 2011, Dr. Chung conducted an orthopedic consultation 19 of Plaintiff at the request of the stage agency. 20 Chung observed tenderness and reduced range of motion in the lumbar 21 spine. 22 musculoligamentous strain of the lumbosacral spine and ligamentous 23 strain of the right knee with probable chondromalacia of the right 24 patella. 25 and walk for four hours in an eight-hour day. 26 also observed that Plaintiff had been using a cane for two years, but 27 that he did not find any indication for use of the cane based on his 28 examination. (A.R. 702—04.) (A.R. 704.) Plaintiff was (A.R. 700—05.) diagnosed Dr. with Dr. Chung opined that Plaintiff could stand (A.R. 704.) 14 (A.R. 704.) Dr. Chung 1 With 2 3 respect to Dr. Chung’s opinions, the ALJ found the following: 4 This opinion is generally afforded great weight to the extent it is supported by the medical evidence of record and consistent with the residual functional capacity decision reached herein. The lifting limitations as outlined by Dr. Chung are consistent with the objective and clinical findings, as well as the opinions of other physicians. However, the undersigned finds that based on claimant’s activities of daily living, he is able to stand and walk more than was generally outlined. 5 6 7 8 9 10 11 (A.R. 25.) 12 13 An inconsistency between a treating physician’s opinion and a 14 claimant’s daily activities is a specific and legitimate reason to 15 discount the treating physician’s opinion. Ghanin v. Colvin, 763 16 F.3d 1154, 1162 (9th Cir. 2014). The ALJ noted that Plaintiff 17 reported being able to care for his own personal hygiene, prepare 18 simple meals, perform light household outside the chores, use public 19 transportation, and shop home. (A.R. 23, 25, 28.) 20 Moreover, just after the alleged onset date, the Plaintiff was noted 21 to be walking 3 to 4 miles on a regular basis. (A.R. 28 (citing A.R. 22 626).) Thus, the ALJ properly concluded that these daily activities 23 indicate that Plaintiff can stand and walk for longer periods that 24 the opinion provided by Dr. Chung. 25 26 Thus, the Court finds that the ALJ provided specific 27 legitimate reasons for partially discounting Dr. Chung’s opinion. 28 15 and 1 2 B. The ALJ Properly Relied on the VE’s Testimony 3 4 Plaintiff contends that the ALJ’s reliance on the VE’s testimony 5 was misplaced because: (1) the hypothetical question posed to the VE 6 failed to include all of Plaintiff’s limitations, and (2) the VE’s 7 testimony was inconsistent with agency policy. (A.R. 6—9.) 8 9 1. The ALJ Posed Complete Hypotheticals to the Vocational Expert 10 11 A hypothetical question posed to a vocational expert must set 12 out all the limitations and restrictions of the claimant. Embrey v. 13 Bowen, 849 F.2d 418, 422 (9th Cir. 1988) (emphasis in original). 14 hypothetical question must be accurate, detailed, and supported by 15 the medical record. 16 F.2d 1275, 1279–80 (9th Cir. 1987). 17 to include limitations in the hypothetical that are not supported by 18 substantial evidence. 19 (9th Cir. 2001). The Gamer v. Secretary of Health & Human Servs., 815 However, the ALJ is not required See Osenbrock v. Apfel, 240 F.3d 1157, 1164–65 20 21 The ALJ called Howard 64.) vocational questions to 24 included the following limitations: lift 20 pounds occasionally and 25 10 pounds frequently; carry, sit, stand and walk up to six hours 26 during the day, with the ability to sit and stand at his option; 27 occasionally 28 occasional use of cane for uneven surfaces; slight pain in back, balance, 128—132.) stoop, 16 multiple a 23 climb, posed as (A.R. (A.R. then testify expert. VE. ALJ to 22 the The Goldfarb The kneel, first crouch hypothetical hypothetical and crawl; 1 knee, 2 medications 3 slight impact; mood disorder causing mild limitations in attention, 4 concentration, motivation, and memory; mild to moderate capability to 5 carry out detailed instructions; mild capability to complete a normal 6 workday; and mild capability to relate to the public, coworkers, and 7 supervisors. 8 person with these limitations could perform various jobs available in 9 the national economy, including that of a cashier II, production 10 leg, and abdomen without that adverse side (A.R. 128—29.) assembler, or garment bagger. can be controlled effects; sleep by appropriate disturbance with The VE testified that a hypothetical (A.R. 130—31.) 11 12 The second hypothetical included all of the same limitations as 13 the first hypothetical, except that the pain and psychiatric problems 14 were moderate and would have a moderate effect on Plaintiff’s ability 15 to 16 appropriate 17 (A.R. 131.) 18 controlled, 19 hypothetical. do basic work activities, medication but without could significant still be adverse controlled side by effects. The VE testified that because the conditions could be his response would be the same as in the first (A.R. 131—32.) 20 21 The third hypothetical included all of the same limitations as 22 the first hypothetical, except that the pain and the psychiatric 23 problems were severe and could not be controlled by any medication, 24 or 25 person’s ability to maintain pace and concentration. 26 The VE testified that there would be no jobs available in the local 27 or national economy for this hypothetical person. the appropriate medication would 28 17 markedly interfere with the (A.R. 132.) (A.R. 132.) 1 Plaintiff contends that the ALJ failed to include a hypothetical 2 with moderate and uncontrolled impairments in maintaining attention, 3 concentration, motivation, memory, completing a normal workday, or 4 interacting with the public, coworkers, or supervisors. 5 7—8.) 6 limitations in these areas are uncontrolled. 7 Plaintiff’s mental health treatment consisted of Zoloft, which kept 8 his mood stable and resulted in significant improvement. 9 509, 617—21.) However, Plaintiff cites no evidence that (Joint Stip. his moderate As the ALJ noted, (A.R. 26, Moreover, the ALJ found that although Plaintiff was 10 recommended to undergo psychological treatment, he attended only a 11 few appointments from March through June 2010, and has not reengaged 12 in any treatment. (A.R. 26.) 13 Even 14 assuming Plaintiff’s psychological impairments were 15 moderate and uncontrolled, the VE was presented with an additional 16 hypothetical by Plaintiff’s attorney that included the consideration 17 of moderate and uncontrolled impairments in addition to the same 18 limitations as the first hypothetical. 19 that 20 performing skilled and semi-skilled work, these limitations would 21 still permit the hypothetical individual to perform the unskilled 22 work identified. 23 to 24 supported by the record. 25 /// 26 /// 27 /// 28 /// although the VE these limitations (A.R. 133—34.) considered all of (A.R. 133.) would preclude The VE testified a person from Thus, the hypotheticals presented Plaintiff’s limitations Thomas, 278 F.3d at 956. 18 that were 2. 1 The VE’s Testimony Does Not Conflict With Agency Policy 2 Plaintiff also contends that the VE’s 3 testimony that a moderate 4 limitation in completing a normal workday would leave the unskilled 5 work 6 Plaintiff’s 7 Administration’s 8 internal agency document used by employees to process claims. 9 imposes a strict requirement that all claimants must show the ability 10 to “complete a normal workday and workweek without interruptions from 11 psychologically based symptoms and perform at a consistent pace.” 12 (Joint Stip. 10 (citing POMS DI 25020.010.B.3).) base intact deviated argument is Program from agency premised Operations policy. on the Manual (Joint Stip. Social System 8.) Security (“POMS”), an POMS 13 POMS may be “entitled to respect” under Skidmore v. Swift & Co., 14 15 323 U.S. 134 16 interpretation of an ambiguous regulation, see Christensen v. Harris 17 Cnty., 18 judicially 19 Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1073 (9th Cir. 20 2010); see also Moore v. Apfel, 216 F.3d 864, 868—69 (9th Cir. 2000) 21 (declining 22 agency manual because such a manual “does not carry the force and 23 effect of law.”). 529 (1944), U.S. 576, enforceable to review to the 587—88 duties extent it (2000), on but either allegations of provides it this a “does court noncompliance persuasive not or impose the with ALJ.” internal 24 25 Even though POMS does not impose any judicially enforceable 26 duties on the SSA, “[t]he Code of Federal Regulations is clearly 27 binding 28 regulations applicable here do not require a finding that a claimant upon the Commissioner.” Moore, 19 216 F.3d at 869. The 1 is disabled when the claimant exhibits a moderate limitation in the 2 ability 3 psychologically-based 4 404.1520a; see also Hoopai v. Astrue, 499 F.3d 1071, 1076–77 (9th 5 Cir. 2007) (holding that a diagnosis of “moderately significant forms 6 of depression” and moderate limitations in the ability to complete a 7 normal 8 psychologically-based 9 nondisability); McLain v. Astrue, No. SA CV 10-1108 JC, 2011 WL to complete workday at a normal symptoms. and *6 workday See workweek symptoms (C.D. Cal. 20 not §§ 404.1520, interruption preclude from finding 11 functional limitations . . . are not per se disabling, nor do they 12 preclude the 13 tasks”). Therefore, the VE’s testimony does not conflict with agency 14 policy. jobs that (“[m]oderate of 2174895, of 2011) a from 10 performance 3, interruption C.F.R. without did June without involve simple, mental repetitive 15 Accordingly, the Court finds that the ALJ properly relied on the 16 17 VE’s testimony 18 considered all of the claimant’s limitations that were supported by 19 the record. See Thomas, 278 F.3d at 956 (considering VE testimony 20 reliable the 21 functional limitations, both physical and mental supported by the 22 record); 23 recognized expertise provides the necessary foundation for his or her 24 testimony”). 25 /// 26 /// 27 /// 28 /// if because Bayliss, the hypotheticals hypothetical 427 F.3d posed 1211, 20 presented includes 1218 (9th all Cir. to of 2005) the VE claimant’s (“A VE’s ORDER 1 2 3 4 For all of the foregoing reasons, this Court affirms decision of the Administrative Law Judge. 5 6 LET JUDGMENT BE ENTERED ACCORDINGLY. 7 8 Dated: January 5, 2015. 9 10 11 12 _____________/s/______________ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 the NOTICE 1 2 3 Reports and Recommendations are not appealable to the Court of 4 Appeals, but may be subject to the right of any party to file 5 objections as provided in the Local Rules Governing the Duties of 6 Magistrate Judges and review by the District Judge whose initials 7 appear in the docket number. 8 Federal Rules of Appellate Procedure should be filed until entry of 9 the judgment of the District Court. No notice of appeal pursuant to the 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22
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