Sanders v. Commissioner Social Security Administration, No. 3:2012cv01059 - Document 32 (D. Or. 2013)

Court Description: OPINION & ORDER: The Commissioners decision is AFFIRMED because it was supported by substantial evidence in the record and based on the correct legal standards. This action is DISMISSED. See 17-page opinion & order attached. Signed on 9/24/2013 by Judge Marco A. Hernandez. (mr)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION JULIE A. SANDERS, Case No. 3:12-cv-01059-HZ Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant. KAREN STOLZBERG 11830 SW Kerr Parkway, #315 Lake Oswego, Oregon 97035 Attorney for plaintiff S. AMANDA MARSHALL United States Attorney District of Oregon ADRIAN L. BROWN Assistant United States Attorney 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97201 1 OPINION & ORDER OPINION & ORDER JEFFREY R. MCCLAIN Special Assistant United States Attorney Office of General Counsel Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, Washington 98104-7075 Attorneys for defendant HERNANDEZ, District Judge: Plaintiff Julie A. Sanders brings this action for judicial review of the  Commissioner s decision denying her application for Social Security Disability Insurance ( SSDI ) under Title II  and Supplemental Security Income ( SSI )  under Title XVI of the Social Security Act (the Act ).  This Court has jurisdiction under 42 U.S.C. § 405(g). For the following reasons, the Commissioner s decision is AFFIRMED. BACKGROUND Ms. Sanders was born on March 8, 1975 and was 31 years old on the alleged disability onset date. Tr. 34. She is a high school graduate and attended two years of college. Tr. 208. Her past work includes employment at a call center and as a sales associate. Tr. 86, 226. Plaintiff last worked in December 2006. Tr. 204. Ms. Sanders protectively filed an application for SSI in August 2009, alleging disability as of December 2006 due to bipolar disorder, fibromyalgia, and disc disease. Tr. 176, 203-04. After the application was denied initially and upon reconsideration, Ms. Sanders requested a hearing before  an  administrative  law  judge  ( ALJ ). Tr. 125, 131-32. On August 17, 2011, a hearing was held before ALJ Riley J. Atkins, at which Ms. Sanders testified and was represented by counsel; vocational expert ( VE ) Amberly Ruck also testified. On August 25, 2011, the ALJ issued a decision finding Ms. Sanders not disabled within the meaning of the Act. Tr. 16-35. 2 - OPINION & ORDER After the Appeals Council denied review of the ALJ s decision, Ms. Sanders filed a complaint in this Court. Tr. 1-3. SEQUENTIAL DISABILITY ANALYSIS The Commissioner engages in a sequential process encompassing between one and five steps in determining disability under the meaning of the Act. 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is potentially dispositive. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). The initial burden of establishing disability rests upon the claimant. Id.; Yuckert, 482 U.S. at 146 n.5. If the sequential disability analysis reaches the  fifth  step,  the  burden  shifts  to  the  Commissioner  to  show  that  the  claimant  can  perform  some other work that exists in the national economy, taking into  consideration  the  claimant s residual functional capacity, age, education, and work experience.  Tackett, 180 F.3d. at 1100. At step one, the Commissioner determines if the claimant is performing substantial gainful activity. If so, the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). At step two, the Commissioner determines  if  the  claimant  has  a  severe  medically determinable physical or mental impairment  that meets the twelve-month durational requirement. If the claimant does not have such a severe impairment, she is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). At step three, the Commissioner determines whether the severe impairment meets or equals a  listed  impairment in the regulations. If the impairment is determined to equal a listed  impairment, the claimant is presumptively disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). At step four, the Commissioner determines whether the claimant can still perform  past  relevant  work.   If the claimant can perform such work, she is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv); Yuckert, 482 U.S. at 141. At step five, the burden shifts 3 - OPINION & ORDER to the Commissioner to show that the claimant can perform other work existing in the national economy; if the Commissioner cannot meet this burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), 416.920(f); Tackett, 180 F.3d at 1099. Conversely, if the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. §§ 404.1520(g), 416.920(g); Tackett, 180 F.3d at 1099. THE ALJ S DECISION At step one of the sequential evaluation process outlined above, the ALJ found that Ms. Sanders had not engaged in substantial gainful activity since the alleged onset date. Tr. 21. At step two, the ALJ determined that Ms. Sanders had the following severe impairments: bipolar disorder, posttraumatic stress disorder ( PTSD ), borderline personality traits, a history of substance abuse, left shoulder tendonitis, cervical degenerative disease, asthma, fibromyalgia, and a history of obesity. Id. At step three, the ALJ found that Ms. Sanders impairments, either singly or in combination, did not meet listings 12.04 or 12.09. Tr. 22. At step four, the ALJ found that Ms. Sanders had the residual functional capacity ( RFC ) to perform a limited range of light work: [S]he can lift and/or carry up to 20 pounds occasionally and up to ten pounds frequently; she can stand and/or walk with normal breaks a total of about six hours in an eight-hour workday . . . [s]he can sit with normal breaks approximately about six hours in an eight-hour workday . . . [s]he should not engage in an climbing other than stair and ramps. She is limited to no more than occasional overhead reaching with the non-dominant left arm . . . [s]he should avoid concentrated exposure to environmental irritants for breathing disorers . . . [s]he should not be required to engage in public contact . . . [s]he can engage in brief, routine social interaction with others, but would work best alone. Tr. 23-24. At step four, the ALJ found that Ms. Sanders could no longer perform her past relevant work. Tr. 33. At step five, the ALJ found that Ms. Sanders impairments did not fully preclude 4 - OPINION & ORDER her from working; considering her age, education, work experience, and RFC, jobs existed in significant numbers in the national and local economy that Ms. Sanders could perform, such as final assembler or a sales slip sorter. Tr. 34. The ALJ therefore concluded that Ms. Sanders was not disabled under the Act from her alleged onset date through the date of the decision. Tr. 35. STANDARD OF REVIEW The  reviewing  court  must  affirm  the  Commissioner s  decision  if  it is based on proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Bray  v.  Comm r of the Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009). Substantial evidence is  more  than  a  mere  scintilla,  but  less  than  a  preponderance. Bray, 554 F.3d at 1222 (citation and internal quotations omitted). It  is  such  relevant  evidence  as  a  reasonable mind might accept as adequate to support a conclusion.  Id. The court must weigh the evidence  that  supports  and  detracts  from  the  Commissioner s  conclusions. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citation omitted). Where the evidence can support either a grant or a denial, the court may not substitute its judgment for that of the Commissioner. Id. (citation omitted). Variable interpretations of the evidence are insignificant if the Commissioner s interpretation is a rational reading. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the court cannot affirm  the  Commissioner s  decision  upon reasoning the ALJ did not assert in denying the claimant benefits. Bray, 554 F.3d at 1225 26 (citation omitted). DISCUSSION Ms. Sanders asserts that the ALJ wrongfully denied her claim for benefits by committing the following errors of law: (1) failing to find that her pain disorder was severe at step two; (2) failing to give her testimony sufficient weight; (3) failing to give sufficient weight to lay witness testimony; (4) failing to give sufficient weight to certain medical opinions; and therefore (5) 5 - OPINION & ORDER failing to adequately account for all of her limitations in formulating the RFC, which led to erroneous findings by the VE. I. Step Two Pain Disorder Assessment Ms. Sanders contends that the ALJ committed reversible error by failing to find her pain disorder was severe at step two of the sequential analysis. The step two inquiry is the de minimis screening device used to dispose of groundless claims. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). At step two, a plaintiff must present evidence of an impairment or impairments which are so severe that it significantly limits [a plaintiff s] physical and mental ability to do basic work activities.  20 C.F.R. § 416.920(c). The severity regulation increases the efficiency  and reliability of the evaluation process by identifying at an early stage those claimants whose medical impairments are so slight that it is unlikely that they would be found disabled even if their  age,  education,  and  experience  were  not  taken  into  account.   Yuckert, 482 U.S. at 153. Where the plaintiff meets the de minimis threshold, the ALJ continues with the sequential analysis, considering the  effect  of  all  of  the  plaintiff s  impairments,  whether  severe  or  nonsevere. Social Security Ruling ( SSR ) 96-8p, available at 1996 WL 374184 at *5. Therefore, reversible error occurs only when a severe impairment excluded at step two caused additional functional limitations not accounted for in the RFC assessment. Lewis v. Astrue, 498 F. 3d 909, 911 (9th Cir. 2007). In this case, step two of the sequential analysis was resolved in Ms. Sanders favor, as the ALJ continued to subsequent steps; thus, any error  in  neglecting  to  mention  plaintiff s  alleged  pain disorder was harmless so long as all of her impairments were considered in the RFC. Id. As discussed  below,  the  ALJ  properly  accounted  for  all  of  plaintiff s  impairments  which  were  supported by medical evidence in formulating the RFC. Further, Ms. Sanders does not identify 6 - OPINION & ORDER any limitations which she believes are caused by her pain disorder over and above those discussed in the RFC. Therefore, any error at step two was harmless. II. Plaintiff s Credibility Ms. Sanders argues that the ALJ erroneously discredited her testimony which led to an inaccurate RFC evaluation. Generally,  the  extent  to  which  an  individual s  statements about [pain] symptoms can be relied upon as probative evidence in determining whether the individual is  disabled  depends  on  the  credibility  of  the  statements.   SSR 96-7p, available at 1996 WL 374186 at *4. Absent evidence of malingering, an ALJ must present clear and convincing reasons  for rejecting  a plaintiff s testimony. Carmickle v. Commissioner, 533 F.3d 1155, 1160 (9th Cir. 2008). Here, the ALJ presented several reasons for discounting Ms. Sanders testimony including (1) exaggeration of physical and mental health symptoms; (2) drug-seeking behavior; (3) activities of daily living ( ADL s ) which contradicted endorsed limitation level; (4) past work activity inconsistencies with endorsed limitation level; and (5) lack of candor about alcohol use. Ms. Sanders disputes each of the rationales offered by the ALJ. The ALJ s  decision  included several examples of what he found to be plaintiff s symptom exaggeration. For example, the ALJ found that emergency room ( ER ) physicians noted that Ms. Sanders exhibited pain behavior only when observed. Tr. 32. When Ms. Sanders presented at an ER complaining of kidney stones in 2009, the attending physician, Dr. Erenio Aledo, M.D., entered  the  room  and  found  her  completely  non-distressed and browsing a magazine.  Tr. 667. The same doctor noted that Ms. Sanders had presented at ER s previously  with complaints of kidney stones, but as was the case with his interaction with her, no kidney stones were ever found. Tr. 668. Dr. Aledo also treated plaintiff in 2010 when she presented at the ER complaining of pain after slipping and falling. Tr. 660. He did not find any bruising and imaging was negative; he reported further that the pain affect seemed out of proportion to his 7 - OPINION & ORDER examination. Id. In 2010, another physician, Dr. Stuart Currie, M.D., observed that that Ms. Sanders was  not  tender  in  the  lumbar  area  when  distracted   despite  presenting  at  an  ER  complaining of severe back pain. Tr. 633-34. Dr. Currie again treated Ms. Sanders two months later, when she presented in the ER complaining of a kidney stone; however, he noted that she was quietly waiting in the examination room until he entered, at which point she began to  jolt  and grimace.  Tr. 613. Finally, Dr. Currie observed that he was able to redirect Ms. Sanders with conversation, which vitiated the pain behavior. Id. The ALJ also noted evidence in the record suggesting that Ms. Sanders exaggerated her mental health symptoms. Tr. 32. In 2011, Molly McKenna, Ph.D., examined Ms. Sanders and also reviewed the Learning Disability Evaluation she completed in 2009. Tr. 460. Dr. McKenna assessed that Ms. Sanders had poor effort and motivation, such that her actual cognitive abilities could not be properly estimated. Tr. 464. When asked by Dr. McKenna to gauge her pain level on a one to ten scale, Ms. Sanders reported that her peak pain was forty out of ten. Tr. 463. As the ALJ reported, Dr. McKenna found that Ms. Sanders endorsed an excessive number of infrequent responses, which  was  uncommon,  even  in  individuals  with  genuine,  severe  psychological difficulties who report credible symptoms. Tr. 467. Ms. Sanders submits that these incidents do not suggest exaggeration of symptoms. For example, Ms. Sanders maintains that her distractibility from pain, as noted by Dr. Currie, did not establish exaggeration. She also argues that Drs. Currie and Aledo did not see her often enough to establish a personal relationship or knowledge of her, and that the allegedly exaggerated symptoms are the result of legitimate underlying ailments. See Pl. s  Reply  Br. at 7-8. Ms. Sanders further asserts that the ALJ acknowledged  her  mental  impairments  but  then  used  symptoms of those conditions as a basis for finding her not credible.  Pl. s  Opening Br. at 20. Finally, Ms. Sanders contends that the Commissioner is engaging in an electronic snow job,   8 - OPINION & ORDER which apparently consists of a  bombardment of citations . . . designed to deceive, overwhelm,  or persuade with insincere talk.  Id. at 6. The standard of review for this Court is merely whether the ALJ used proper legal standards and based his opinion on substantial evidence in the record. Bray, 554 F.3d at 222. Here, the ALJ found evidence in the record that Ms. Sanders exaggerated symptoms to physicians on visits to the ER. Tr. 32. The ALJ also found evidence that she showed poor effort and motivation which resulted in inaccurately low results on mental assessments. Id. Thus, the ALJ s decision was reasonable and based on substantial medical evidence found in the record. Further, it is not clear to the Court why the Commissioner s inclusion of a multitude of citations which support the  ALJ s  finding  that  Ms.  Sanders exaggerated her symptoms should be disregarded as merely a snow job.   In any event, the ALJ discussed additional evidence in the record which impugned Ms. Sanders   credibility: her drug-seeking behavior, her ADL s, her past work experiences which were inconsistent with her alleged level of impairment, and her lack of candor about current alcohol use. Tr. 32-33. While Ms. Sanders denies these findings, they are all represented in the record. For instance, while Ms. Sanders alleges near complete disability, she has been able to care for her two children as a single parent, which conflicts with her alleged impairment level. Tr. 33, 461, 464, 486. Additionally, while Ms. Sanders reported having trouble maintaining her hygiene, the ALJ cited to evidence revealing that most treatment notes reflect appropriate grooming. See, e.g., Tr. 253, 292-93, 486-87, 568, 571, 578. The ALJ also found that Ms. Sanders did not leave her jobs for reasons related to her alleged impairments. Tr. 32, 46, 49, 50. Finally, the ALJ found that Ms. Sanders was less than candid about her alcohol use. Tr. 32. While she stated she had not consumed alcohol in years, she was arrested and convicted of DUI 9 - OPINION & ORDER in 2009, and reported that her friends expressed concern in 2010 regarding her then recent drinking. Tr. 82, 486. Thus, the ALJ provided clear and convincing reasons, supported by a broad range of substantial evidence in the record. Even if the evidence could be reasonably interpreted in more than one way, it is beyond the authority of the Court to overturn the ALJ s conclusions on Ms.  Sanders  credibility insofar as substantial evidence in the record supports them. Burch, 400 F.3d at 679. III. Lay Witness Testimony Ms. Sanders argues that the ALJ erred by failing to give appropriate weight to the lay testimony submitted by her mother, Cindy Collett, and her stepfather, Derek Collett. If an ALJ chooses to discount the testimony of lay witnesses, he must give reasons which are germane to each witness. Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993); 20 C.F.R. § 416.913(d)(4). Such testimony cannot be disregarded without comment. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) (citation omitted). The ALJ gave some weight to the opinion of Ms.  Collett:  [h]er statements are considered credible to the extent that she has accurately reported what she has seen, what has been exhibited to her, and what she has been told [by Ms. Sanders].  Tr. 30. The ALJ, however,  did not adopt Ms. Collett s opinion that Ms. Sanders was unable to work, as he found that her opinion was  based on the [Ms. Sanders ] incredible behavior and self-reports.  Id. Ms. Sanders argues  that  the  ALJ s  rationale  for  discrediting  Ms.  Collett s  opinion  was  premised on an incorrect  interpretation  of  Dr.  McKenna s  psychological  evaluation.  Pl. s Opening Br. at 22. However, the ALJ s interpretation of Dr. McKenna s opinion is only tangential to the lay witness  issue. The ALJ was required to state specific reasons germane to Ms. Collett to partially reject her testimony, and he did so here. Tr. 30. 10 - OPINION & ORDER Ms. Sanders also argues that the ALJ failed to address the written statement of Mr. Collett.  Mr.  Collett s  statement  was  drafted  after  the  ALJ  issued  his  decision. Additional evidence submitted to the Appeals Council, however, is considered part of the administrative record and must be considered upon review of the Commissioner s decision. Brewes v. Comm r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012). However, the additional evidence must provide a basis for changing the hearing decision in order to necessitate a reversal or remand. Id. at 1162. Here, Mr. Collett s testimony, like Ms. Collett s, mirrors to a large extent  plaintiff s  self-reporting. Tr. 697. Mr.  Collett s  testimony also reasonably  supports  the  ALJ s  conclusion that plaintiff exaggerates her symptoms and is generally an unreliable self-reporter. Id. For example, he noted that  Ms.  Sanders  never  has  a  cold;  she  always  has  pneumonia  .  .  .  [s]he never has a stomach ache; she always has some major intestinal  disorder.   Id. Thus, Mr. Collett s opinion does not provide a new basis for overturning the ALJ s decision. Valentine v. Comm r  of  Soc.  Sec.  Admin., 574 F.3d 685, 694 (9th Cir. 2009) Plaintiff s  argument  is  unavailing. IV. Medical Evidence A. Treating Providers Gellert and Thompson Plaintiff asserts that the ALJ erred in failing to give any weight to the opinions of treating medical providers Leslie Gellert, MSW, and Natalie Thompson, a psychiatric nurse practitioner. Both Ms. Gellert and Ms. Thompson submitted letters to plaintiff in August 2011, in which they each concluded that plaintiff was completely disabled from maintaining full-time work. Tr. 59697, 692-93. The ALJ provided three rationales for rejecting the opinions of Ms. Gellert and Ms. Thompson: (1) they were not accepted medical sources, (2) their disability opinions were 11 - OPINION & ORDER inconsistent with treatment notes; and (3) their submissions amounted merely to  advocacy  documents solicited by Ms. Sanders attorney. Tr. 32.1 The Social Security Administration lists several factors by which an ALJ can evaluate the opinions of medical sources, including the longitudinal treating history of the physician, its consistency with other evidence, whether the record as a whole supports the opinion, whether the opinion is thoroughly explained, and  if  the  source  is  an  acceptable medical source. SSR 0603p, available at 2006 WL 2329939 at *3. However, the ALJ is not compelled to give weight to the opinions of non-acceptable medical sources. Id. The ALJ may reject testimony from  other  sources   by  giving  reasons  germane  to  each  witness  for  doing  so.  Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Here, the ALJ provided several germane reasons for disregarding the testimony of Ms. Gellert and Ms. Thompson aside from the fact that they are not acceptable sources under the Act. Foremost, the ALJ found that their conclusions were inconsistent with Ms.  Sanders treatment record at LifeWorks, NW (where Ms. Gellert and Ms. Thompson were employed), including their own treatment records. Tr. 32. For example, while Ms. Gellert s  post-hearing letter endorsed marked limitations in all aspects of her functioning, her assessed Global Assessment of Functioning  ( GAF ) score of 51 reflects moderate symptoms. Tr. 515-16, 597. Similarly, although Ms. Thompson s  post-hearing letter describes poor hygiene, her treatment notes regularly indicated that Ms. Sanders was well-groomed and appropriately dressed. Tr. 692, 29293, 486-87, 501, 504, 509, 553, 557, 563, 568, 571, 578, 586, 589. Further, while Ms. Thompson s notes consistently reflect no suicidal ideation, her post-hearing letter reported that Ms. Sanders was  chronically suicidal.  Id. Plaintiff argues that the idea that a detailed, written 1 The Commissioner does not refute that Ms. Thompson and Ms. Gellert were Ms. Sanders  primary medical care  providers from 2007 until the time of the hearing. Def. s Resp. at 19. 12 - OPINION & ORDER opinion from a treating source is not entitled to weight because it is not supported by underlying chart notes, is archaic, irrelevant, and improper.  Pl. s Opening Br. at 25. However, the degree to which a source supports her opinion with clinical findings is a factor the ALJ should consider. 20 C.F.R. § 416.927(c)(3); see also, Tommassetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir 2008). The ALJ s findings that the opinions of Ms. Gellert and Ms. Thompson were inconsistent with  their own treatment notes and other treatment notes of record is certainly germane to those witnesses; the ALJ s decision to discredit them was not, therefore, legal error. Turner v. Comm r  of Soc. Sec.,  613  F.3d  1217,  1224  (9the  Cir.  2010).  The  Court  must  defer  to  the  ALJ s  reasonable interpretation of the evidence. Molina, 674 F.3d at 1111 ( [e]ven when the evidence  is susceptible to more than one rational interpretation, we must uphold the ALJ s findings if they  are supported by inferences reasonably drawn from the record ).   B. Dr. McKenna Ms. Sanders argues that despite purporting to give Dr. McKenna s opinion great weight,  the ALJ failed to incorporate all of her observations into the decision. Plaintiff also contends that the ALJ failed to address Dr. McKenna s  observation that plaintiff s chronic suicidal ideation,  depression, irritability, difficulty in controlling anger, affective instability and chronic pain and subjective memory complaints were [her] largest impediments to returning to gainful employment.  Pl. s Opening Br. at 25. The Commissioner replies that although the ALJ did not adopt every one of Dr. McKenna s observations, he adequately incorporated her opinions in his evaluation  of  the  evidence.  Def. s Resp. Br. at 24. Dr.  McKenna s  opinion  has  already  been  discussed in some detail in the preceding  sections  regarding  Ms.  Sanders provisional pain disorder diagnosis and her psychological testing results which suggested exaggeration of symptoms. 13 - OPINION & ORDER The ALJ is responsible for resolving conflicts and ambiguities in the record. Magallenes, 881 F.2d at 750. While Dr. McKenna did opine that Ms. Sanders would be a poor candidate for jobs requiring a great deal of interpersonal contact, she did not suggest that she was precluded from working because of her impairments. Tr. 32, 469-70, 728. Rather, she concluded in her January  2011  opinion  that  Ms.  Sanders  would  work  best  in  independent  positions  that  limit  social contact.  Tr. 470. That modification was incorporated in the ALJ s RFC:  [s]he should not  be required to engage in public contact . . . [s]he can engage in brief, routine social interaction with others, but would work best alone, not as part of a team, to complete her assignment in a workplace.   Tr.  24. In  adopting  Dr.  McKenna s  opinion  on  this  point,  the  ALJ  rejected  state agency physician opinions to the contrary. Tr. 30-31. Dr. McKenna s second opinion, submitted after the hearing, did not explicitly contradict her first, but did state that the  symptoms, behaviors, and attitudes I observed . . . would interfere  with Ms.  Sanders   ability  to  be  successful  in  the  workplace,  particularly  due  to  unpredictable mood shifts, poor response to situational changes, difficulty with many types of interpersonal interactions, physical complaints, and poor persistence. Tr. 728. However, the observation that plaintiff s  impairments  would  interfere  with  her  ability to perform in the workplace is neither inconsistent with her initial opinion nor with the limited RFC that the ALJ formulated. Considering all of the evidence in the record, the additional evidence provided by Dr. McKenna does not warrant reversal of the decision. See Brewes, 682 F.3d at 1162-63. V. RFC & VE Testimony Ms. Sanders argues that the ALJ failed to include all of her impairments in formulating the RFC, both severe and non-severe, associated with her provisional pain disorder, including absenteeism, tardiness, and increased break frequency. Pl. s Opening Brief, p. 26. Dr. McKenna noted that impediments to Ms. Sanders returning to the workforce included, among other things, 14 - OPINION & ORDER irritability, mood swings, chronic pain, subjective memory complaints, and that  her  activity  level is quite limited . . . she has modified most of her activities due to physical complaints , yet Dr. McKenna did not find Ms. Sanders completely disabled from work. Tr. 469. Ms. Sanders also reiterates the argument that the ALJ failed to consider her difficulties in working with others, but as already explained above, the ALJ did consider that evidence and limited Ms. Sanders  work to jobs that allowed for minimal interpersonal interactions. Tr. 23-24. Ms. Sanders further argues that SSR 85-15 and the Social Security Program Operations Manual ( POMS ) dictate of finding of disability. The POMS, however,  does not impose any judicially enforceable duties on the SSA.  Carillo-Years v. Astrue, 671 F.3d 731, 735 (9th Cir. 2011). SSR 85-15 states that non-exertional impairments such as mental impairment may significantly erode the occupational base even if the impairments are not of listing severity in the Medical Vocational Guidelines. SSR 85-15, available at 1985 WL 56857 at *3-4. Ms. Sanders argues that  her  impairments  are  so  substantial  as  to  preclude  her  from  performing  the  basic  mental demands of competitive, remunerative, unskilled work,  such as understanding, carrying out, and remembering simple instructions, responding to supervision and coworkers appropriately, and dealing with changes in a routine work setting. Id. at *4; Pl. s Opening Br. at 28. However, the  impairments  that  Ms.  Sanders   alleges are not supported by substantial evidence in the record, as the ALJ disregarded the opinions of Ms. Gellert and Ms. Thompson. Tr. 32. Furthermore, the ALJ found that Ms. Sanders did not end her previous jobs as a result of her alleged impairments, which infers that her ability level was higher than alleged. Tr. 33. Moreover, the ALJ crafted an RFC that considered her challenges in dealing with others in the workplace. Tr. 31. Thus, invoking SSR 85-15 is unavailing.2 2 Moreover, the ALJ s conclusion that Ms. Sanders could perform other work was based on the VE testimony, not the Medical-Vocational Guidelines, which SSR 85-15 contemplates. Tr. 34; see Lockwood v. Comm r of Soc. Sec.  Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). 15 - OPINION & ORDER Finally, Ms. Sanders submits that the Commissioner failed to carry the burden of proof of identifying a significant number of jobs that plaintiff could perform. There is not a bright-line rule for what constitutes a significant number of jobs. See Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). The Commissioner can carry the burden at step 5 by identifying either a significant number jobs in the local or national economy. Id. The VE testified that based on Ms. Sanders  RFC, age, education, and work experience, she could perform occupations such as final assembler optical goods, pre-assembler printed circuit board electronic components, or assembler production, all of which belong to the same occupational cluster and represent 239,550 jobs nationally and 7,070 jobs statewide. Tr. 92-93. Additionally, the VE testified that plaintiff could perform the job of slip sorter, which represents 2,815,240 jobs nationally and 2,510 locally. Tr. 92-95. Further, the VE testified that there were 39,100 slip sorter cluster jobs in the national economy which plaintiff had the ability to perform. Tr. 89, 96-97. Thus, the Commissioner showed that plaintiff could perform work which exists in the national economy. 3 Tr. 34; 42 U.S.C. § 423(d)(2)(A). 3 Ms. Sanders contends that because  there would be 4.45 jobs each in the region for the optical assembler, circuit  board assembler electric components and or the assembler production jobs,  the ALJ erred by finding substantial  number of jobs in the region. Pl. s Opening Br. At 28. Upon questioning by the ALJ, the VE explained that there were in fact 7,070 jobs within the occupational cluster for the state, including 1,587 different occupational titles. Tr. 92-93, 95-96. Dividing the number of jobs in the cluster by the number of occupational titles results in an average of 4.45 jobs per occupational title; however, that number does not simply represent the number of available jobs, as Ms. Sanders appears to contend. Pl. s Opening Br. at 28. The Commissioner s burden of proof is to show that work exists in the national economy, not whether work exists in the immediate area or if a specific job vacancy exists. 20 C.F.R. § 416.966(a). The Commissioner carried the burden by identifying 7,070 jobs in the occupational cluster for optical assembler, circuit board assembler, and assembler production jobs; and 2,510 sales slip sorter jobs. Tr. 34. 16 - OPINION & ORDER CONCLUSION The  Commissioner s  decision is AFFIRMED because it was supported by substantial evidence in the record and based on the correct legal standards. This action is DISMISSED. IT IS SO ORDERED. DATED this ___ day of September, 2013. _____________________________ Marco A. Hernandez United States District Judge 17 - OPINION & ORDER

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