Manes v. Commissioner of Social Security, No. 2:2017cv00370 - Document 14 (E.D. Wash. 2019)

Court Description: ORDER DENYING 11 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING 12 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Case is CLOSED. Signed by Judge Rosanna Malouf Peterson. (LR, Case Administrator)

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Manes v. Commissioner of Social Security Doc. 14 1 2 3 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 4 Jan 18, 2019 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 SEAN F. MCAVOY, CLERK ARLENE R. M., NO: 17-CV-370-FVS 8 9 10 Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 Defendant. 12 13 BEFORE THE COURT are the parties’ cross-motions for summary judgment. 14 ECF Nos. 11, 12. This matter was submitted for consideration without oral 15 argument. Plaintiff is represented by attorney Lora Lee Stover. Defendant is 16 represented by Special Assistant United States Attorney Daphne Banay. The Court, 17 having reviewed the administrative record and the parties’ briefing, is fully 18 informed. For the reasons discussed below, Plaintiff’s Motion, ECF No. 11, is 19 denied and Defendant’s Motion, ECF No. 12, is granted. 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 JURISDICTION 2 Plaintiff Arlene R. M. 1 (Plaintiff), filed for widow’s insurance benefits 3 (disability) and supplemental security income on March 6, 2013, alleging an onset 4 date of June 30, 2012. 2 Tr. 4, 224-29, 232-33, 246-47. Benefits were denied 5 initially, 132-39, and upon reconsideration, Tr. 147-51. Plaintiff appeared at a 6 hearing before an administrative law judge (ALJ) on July 21, 2015. Tr. 25-67. On 7 July 31, 2015, the ALJ issued an unfavorable decision. Tr. 115-26. 8 9 The Appeals Council granted review on August 18, 2017 because the ALJ had incorrectly adjudicated an application for disability insurance benefits (DIB) and 10 omitted the claim for widow’s insurance benefits. 3 Tr. 208-11. On September 29, 11 2017, the Appeals Council corrected those findings, adopted the ALJ’s other 12 findings and conclusions, and issued an unfavorable decision denying the 13 applications for SSI disability and for widow’s insurance benefits. Tr. 1-7. The 14 decision of the Appeals Council is the Commissioner’s final decision subject to 15 16 1 17 name and last initial, and, subsequently, Plaintiff’s first name only, throughout this 18 decision. 19 2 At the hearing, Plaintiff amended the alleged onset date to July 15, 2008. Tr. 29. 20 3 Plaintiff’s application for disability insurance benefits was denied due to lack of 21 insured status. Tr. 4, 208. In the interest of protecting Plaintiff’s privacy, the Court will use Plaintiff’s first ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 review. 20 C.F.R. § 404.98, 416.148; Sousa v. Callahan, 143 F.3d 1240, 1242 n.3 2 (9th Cir. 1998). 3 4 BACKGROUND The facts of the case are set forth in the administrative hearing and transcripts, 5 the ALJ’s decision, and the briefs of Plaintiff and the Commissioner, and are 6 therefore only summarized here. 7 Plaintiff was born in 1958 and was 57 years old at the time of the hearing. Tr. 8 43. She has a bachelor’s degree in business management and an MBA in healthcare 9 administration. Tr. 41. She has work experience as a secretary. Tr. 41. She had a 10 right knee injury in July 2012 and ultimately underwent surgery for a ruptured 11 tendon. Tr. 47-50, 62. At the time of the hearing, she had recently stopped using a 12 cane and could walk half a mile at a time. Tr. 48. Plaintiff testified she also has had 13 lower back pain since high school. Tr. 52, 54. She testified that she could possibly 14 perform a 40-hour work week if she could sit down, but not if she had to stand all 15 the time. Tr. 61. 16 17 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 18 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 19 limited; the Commissioner’s decision will be disturbed “only if it is not supported by 20 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 21 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a reasonable ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 mind might accept as adequate to support a conclusion.” Id. at 1159 (quotation and 2 citation omitted). Stated differently, substantial evidence equates to “more than a 3 mere scintilla[,] but less than a preponderance.” Id. (quotation and citation omitted). 4 In determining whether the standard has been satisfied, a reviewing court must 5 consider the entire record as a whole rather than searching for supporting evidence in 6 isolation. Id. 7 In reviewing a denial of benefits, a district court may not substitute its 8 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 1156 9 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 10 rational interpretation, [the court] must uphold the ALJ’s findings if they are 11 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 12 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an ALJ’s 13 decision on account of an error that is harmless.” Id. An error is harmless “where it 14 is inconsequential to the [ALJ’s] ultimate nondisability determination.” Id. at 1115 15 (quotation and citation omitted). The party appealing the ALJ’s decision generally 16 bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 U.S. 17 396, 409-10 (2009). 18 FIVE-STEP EVALUATION PROCESS 19 A claimant must satisfy two conditions to be considered “disabled” within the 20 meaning of the Social Security Act. First, the claimant must be “unable to engage in 21 any substantial gainful activity by reason of any medically determinable physical or ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 mental impairment which can be expected to result in death or which has lasted or 2 can be expected to last for a continuous period of not less than twelve months.” 42 3 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s impairment must 4 be “of such severity that he is not only unable to do his previous work[,] but cannot, 5 considering his age, education, and work experience, engage in any other kind of 6 substantial gainful work which exists in the national economy.” 42 U.S.C. §§ 7 423(d)(2)(A), 1382c(a)(3)(B). 8 9 The Commissioner has established a five-step sequential analysis to determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 404.1520(a)(4)(i)- 10 (v), 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s 11 work activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is 12 engaged in “substantial gainful activity,” the Commissioner must find that the 13 claimant is not disabled. 20 C.F.R. §§ 404.1520(b), 416.920(b). 14 If the claimant is not engaged in substantial gainful activity, the analysis 15 proceeds to step two. At this step, the Commissioner considers the severity of the 16 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 17 claimant suffers from “any impairment or combination of impairments which 18 significantly limits [his or her] physical or mental ability to do basic work 19 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 20 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 however, the Commissioner must find that the claimant is not disabled. 20 C.F.R. 2 §§ 404.1520(c), 416.920(c). 3 At step three, the Commissioner compares the claimant’s impairment to 4 severe impairments recognized by the Commissioner to be so severe as to preclude a 5 person from engaging in substantial gainful activity. 20 C.F.R. §§ 6 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more severe 7 than one of the enumerated impairments, the Commissioner must find the claimant 8 disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d). 9 If the severity of the claimant’s impairment does not meet or exceed the 10 severity of the enumerated impairments, the Commissioner must pause to assess the 11 claimant’s “residual functional capacity.” Residual functional capacity (RFC), 12 defined generally as the claimant’s ability to perform physical and mental work 13 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ 14 404.1545(a)(1), 416.945(a)(1), is relevant to both the fourth and fifth steps of the 15 analysis. 16 At step four, the Commissioner considers whether, in view of the claimant’s 17 RFC, the claimant is capable of performing work that he or she has performed in the 18 past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the 19 claimant is capable of performing past relevant work, the Commissioner must find 20 that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the 21 claimant is incapable of performing such work, the analysis proceeds to step five. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 At step five, the Commissioner should conclude whether, in view of the 2 claimant’s RFC, the claimant is capable of performing other work in the national 3 economy. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this 4 determination, the Commissioner must also consider vocational factors such as the 5 claimant’s age, education and past work experience. 20 C.F.R. §§ 6 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant is capable of adjusting to other 7 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 8 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other 9 work, analysis concludes with a finding that the claimant is disabled and is therefore 10 11 entitled to benefits. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). The claimant bears the burden of proof at steps one through four above. 12 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 13 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 14 capable of performing other work; and (2) such work “exists in significant numbers 15 in the national economy.” 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2); Beltran v. 16 Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 17 APPEALS COUNCIL FINDINGS 18 At step one, the Appeals Council (AC) found Plaintiff did not engage in 19 substantial gainful activity since July 15, 2008, the amended alleged onset date. Tr. 20 5. At step two, the AC found that Plaintiff has the following severe impairments: 21 right knee degenerative joint disease, tendon rupture status post-surgery, and ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 obesity. Tr. 5. At step three, the AC found that Plaintiff does not have an 2 impairment or combination of impairments that meets or medically equals the 3 severity of a listed impairment. Tr. 5. 4 5 The AC then found that Plaintiff has the residual functional capacity to perform a full range of light work with the following additional limitations: 6 she can stand or walk only 2 hours in an 8 hour day, for 10 to 15 minutes at a time; she will have no use of her right (dominant) upper extremity when walking because of her use of a cane; she can never climb ramps, stairs, ladders, ropes, or scaffolds, and can perform all other postural activities only occasionally; and she cannot have concentrated exposure to extreme cold, extreme heat, vibration, or hazards, such as unprotected heights and moving mechanical parts. 7 8 9 10 11 Tr. 6. At step four, the AC found that Plaintiff is capable of performing past relevant 12 work as a secretary. Tr. 6. Therefore, at step five, the AC concluded that Plaintiff 13 has not been under a disability, as defined in the Social Security Act, at any time 14 through July 31, 2015, the date of the ALJ’s decision. Tr. 6. 15 ISSUES 16 Plaintiff seeks judicial review of the Commissioner’s final decision denying 17 widow’s insurance benefits under Title II and supplemental security income under 18 Title XVI of the Social Security Act. ECF No. 12. Plaintiff raises the following 19 issues for review: 20 1. Whether the ALJ properly evaluated Plaintiff’s symptom complaints; 21 2. Whether the ALJ properly considered the medical expert’s testimony; ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 3. 2 capacity; 3 4. 4 expert; and 5 5. 6 relevant work.4 7 Whether the ALJ properly assessed Plaintiff’s residual functional Whether the ALJ posed a complete hypothetical to the vocational Whether the ALJ properly found Plaintiff is capable of performing past ECF No. 11 at 7. 8 9 DISCUSSION A. 10 Symptom Claims Plaintiff contends the ALJ improperly rejected her symptom claims. ECF 11 No. 11 at 9-11. An ALJ engages in a two-step analysis to determine whether a 12 claimant’s testimony regarding subjective pain or symptoms is credible. “First, the 13 ALJ must determine whether there is objective medical evidence of an underlying 14 impairment which could reasonably be expected to produce the pain or other 15 16 4 17 of the Appeals Council, ECF No. 11 at 7, even though the Appeals Council’s 18 decision is the final decision of the Commissioner subject to review by the Court. 19 For clarity and ease of discussion, and because the Appeals Council adopted the 20 ALJ’s findings which are challenged by Plaintiff, the Court also discusses the 21 issues in terms of the ALJ’s findings. Plaintiff frames the issues in terms of the ALJ’s decision rather than the decision ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 symptoms alleged.” Molina, 674 F.3d at 1112 (internal quotation marks omitted). 2 “The claimant is not required to show that her impairment could reasonably be 3 expected to cause the severity of the symptom she has alleged; she need only show 4 that it could reasonably have caused some degree of the symptom.” Vasquez v. 5 Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). 6 Second, “[i]f the claimant meets the first test and there is no evidence of 7 malingering, the ALJ can only reject the claimant’s testimony about the severity of 8 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 9 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal 10 citations and quotations omitted). “General findings are insufficient; rather, the 11 ALJ must identify what testimony is not credible and what evidence undermines 12 the claimant’s complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th 13 Cir. 1995); see also Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he 14 ALJ must make a credibility determination with findings sufficiently specific to 15 permit the court to conclude that the ALJ did not arbitrarily discredit claimant’s 16 testimony.”). “The clear and convincing [evidence] standard is the most 17 demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 18 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 19 924 (9th Cir. 2002)). 20 21 In assessing a claimant’s symptom complaints, the ALJ may consider, inter alia, (1) the claimant’s reputation for truthfulness; (2) inconsistencies in the ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 claimant’s testimony or between his testimony and his conduct; (3) the claimant’s 2 daily living activities; (4) the claimant’s work record; and (5) testimony from 3 physicians or third parties concerning the nature, severity, and effect of the 4 claimant’s condition. Thomas, 278 F.3d at 958-59. 5 This Court finds that the ALJ provided specific, clear, and convincing reasons 6 for finding Plaintiff’s statements concerning the intensity, persistence, and limiting 7 effects of her symptoms were not entirely credible. Tr. 119-20 8 First, the ALJ found Plaintiff’s work history weakens the credibility of her 9 allegations. Tr. 120. The claimant’s work record is an appropriate consideration 10 in weighing the claimant’s symptom claims. Thomas, 278 F.3d 947, 958-59 (9th 11 Cir. 2002); 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (2011). Second, the ALJ 12 found Plaintiff’s daily activities erode the strength of her statements regarding the 13 extent of her impairments. Tr. 120. It is reasonable for an ALJ to consider a 14 claimant’s activities which undermine claims of totally disabling pain in assessing 15 a claimant’s symptom complaints. See Rollins v. Massanari, 261 F.3d 853, 857 16 (9th Cir. 2001). Third, the ALJ found the objective evidence only partially 17 supports Plaintiff’s statements regarding the limiting effect of her impairments. Tr. 18 120-21. While subjective pain testimony may not be rejected solely because it is 19 not corroborated by objective medical findings, the medical evidence is a relevant 20 factor in determining the severity of a claimant’s pain and its disabling effects. 21 Rollins, 261 F.3d at 857; 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2) (2011). ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 These reasons are supported by the ALJ’s analysis and citations to the record. Tr. 2 119-21. 3 Plaintiff contends the ALJ did not provide clear and convincing reasons for 4 finding her statements less than fully credible. ECF No. 11 at 10. Plaintiff asserts 5 that her “credibility is bolstered” by other evidence but fails to address the reasons 6 cited by the ALJ or demonstrate any error. ECF No. 11 at 10. Without citing the 7 record, Plaintiff references objective evidence of abnormality of her knees, the 8 opinion of Dr. Mullen, Dr. Thompson’s testimony, and findings from the Division 9 of Vocational Rehabilitation. ECF No. 11 at 10-11. The evidence referenced by 10 Plaintiff was considered by the ALJ. The ALJ found Plaintiff’s right knee 11 degenerative joint disease and post-surgery tendon rupture are severe impairments. 12 Tr. 118. The ALJ also addressed Dr. Thompson’s testimony, discussed infra. Tr. 13 123. 14 15 The ALJ gave little weight to some of Dr. Mullen’s conclusions, which is not challenged by Plaintiff. 5 Tr. 122-23. Similarly, the ALJ gave partial weight to 16 17 18 19 20 21 5 The ALJ discussed five opinions given by Dr. Mullen regarding Plaintiff’s functional ability dated March 13, 2014; December 30, 2014; January 23, 2015; January 25, 2015; and February 13, 2015. Tr. 122, 531, 574, 579, 581, 600. The ALJ gave partial weight to the March 2014 and January 2015 opinions but rejected the remaining opinions. Tr. 122-23. Plaintiff does not challenge the weight given ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 the opinion of Margie Hemming, a community rehabilitation specialist for the 2 Division of Vocational Rehabilitation (DVR). Tr. 124, 676-81. The ALJ provided 3 several reasons for the weight assigned to the opinion which are not challenged by 4 Plaintiff. Tr. 124. The ALJ therefore reasonably considered and rejected the 5 evidence cited by Plaintiff. For these reasons, and because Plaintiff did not 6 identify any error in the reasons cited by the ALJ in evaluating Plaintiff’s symptom 7 claims, the Court concludes the ALJ provided clear and convincing reasons 8 supported by substantial evidence. 9 / / / 10 / / / 11 / / / 12 / / / 13 14 15 16 17 18 19 20 21 to Dr. Mullen’s opinions or the ALJ’s reasoning. Further, Plaintiff does not specifically identify which opinion supports her argument, vaguely referencing “the opinions of Dr. Mullen and his actions of assisting her with obtaining a disabled parking permit.” ECF No. 11 at 10-11. The Court ordinarily will not consider matters on appeal that are not specifically and distinctly argued in the opening brief. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008). Thus, the Court declines to further address this issue except to find that the ALJ’s consideration of Dr. Mullen’s opinions was legally sufficient. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 B. 2 Medical Opinion Evidence Plaintiff contends the ALJ failed to properly consider the opinion of the 3 medical expert, Robert Thompson, M.D.6 ECF No. 11 at 11-12. Dr. Thompson 4 testified that during the period from June 1, 2012 to July 1, 2013, Plaintiff’s 5 impairments met the requirements of listing 1.02(A) for major dysfunction of a joint. 6 Tr. 33. He also testified that he could not complete a residual functional capacity 7 finding after July 1, 2013 because the record did not include specific limitations. Tr. 8 33. The ALJ gave partial weight to Dr. Thompson’s opinion. 9 There are three types of physicians: “(1) those who treat the claimant (treating 10 physicians); (2) those who examine but do not treat the claimant (examining 11 physicians); and (3) those who neither examine nor treat the claimant but who 12 review the claimant’s file (nonexamining or reviewing physicians).” Holohan, 246 13 F.3d at 1201-02 (brackets omitted). “Generally, a treating physician’s opinion 14 15 16 17 18 19 20 21 6 Plaintiff’s list of issues indicates that Plaintiff challenges the ALJ’s consideration of Dr. Thompson’s testimony, but Plaintiff fails to cite any authority on this issue or to specifically argue that Dr. Thompson’s opinion was improperly considered. While this “argument” could reasonably be rejected for lack of specifity, see Carmickle, 533 F.3d at 1161, in this instance the Court gives Plaintiff the benefit of the doubt and considers the sufficiency of the ALJ’s analysis of Dr. Thompson’s testimony. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 carries more weight than an examining physician’s, and an examining physician’s 2 opinion carries more weight than a reviewing physician’s.” Id. “In addition, the 3 regulations give more weight to opinions that are explained than to those that are 4 not, and to the opinions of specialists concerning matters relating to their specialty 5 over that of nonspecialists.” Id. (citations omitted). 6 If a treating or examining physician’s opinion is uncontradicted, an ALJ may 7 reject it only by offering “clear and convincing reasons that are supported by 8 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 9 “However, the ALJ need not accept the opinion of any physician, including a 10 treating physician, if that opinion is brief, conclusory and inadequately supported by 11 clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th 12 Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 13 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may 14 only reject it by providing specific and legitimate reasons that are supported by 15 substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester, 81 F.3d at 830-31). 16 The ALJ adopted portions of Dr. Thompson’s opinion, but only to the extent 17 it conformed to other evidence in the record. Tr. 123. Because Dr. Thompson’s 18 opinion was contradicted by the opinion of Dr. Hander, Tr. 97-98, the ALJ was 19 required to provide specific and legitimate reasons for rejecting portions of Dr. 20 Thompson’s opinion. Bayliss, 427 F.3d at 1216. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 The ALJ observed that Dr. Thompson relied on a combination of left and 2 right knee impairments in finding Plaintiff met the requirements of listing 1.02 for 3 major dysfunction of a joint as of June 1, 2012. Tr. 33, 123. Major dysfunction of 4 a joint is “[c]haracterized by gross anatomical deformity (e.g., subluxation, 5 contracture, bony or fibrous ankylosis, instability) and chronic joint pain and 6 stiffness with signs of limitation of motion or other abnormal motion of the 7 affected joint(s).” 20 C.F.R. § Pt. 404, Subpt. P, App. 1, 1.02 (July 20, 2015). The 8 listing requires medically acceptable imaging of joint space narrowing, bony 9 destruction, or ankylosis of the hip, knee, or ankle which causes the “inability to 10 11 ambulate effectively.” Id. An inability to ambulate effectively “means an extreme limitation of the 12 ability to walk . . . defined generally as having insufficient lower extremity 13 functioning . . . to permit independent ambulation without the use of a hand-held 14 assistive device(s) that limits the functioning of both upper extremities.” 20 C.F.R. 15 § Pt. 404, Subpt. P, App. 1, 1.00B2b (July 20, 2015). An example of ineffective 16 ambulation is “the inability to walk without the use of a walker, two crutches or 17 two canes.” Id. 18 The ALJ noted that Plaintiff testified she has no problem with her left knee. 19 Tr. 53-54, 123. The ALJ also noted that imaging of Plaintiff’s left knee was 20 normal, and she had no significant treatment of her left knee. Tr. 123, 383-84. 21 Most significantly, the ALJ observed that Plaintiff testified she was able to walk ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 with a cane in her right hand for a couple of months before her injury on July 20, 2 2012, indicating that Plaintiff’s limitations were not listing-level at that time. Tr. 3 62-63, 123. This was a reasonable conclusion because the inability to ambulate 4 effectively involves the use of a hand-held assistive device that limits functioning 5 of both upper extremities, and Plaintiff’s testimony that she used a cane in her right 6 hand indicates that she did not use both upper extremities to ambulate. The ALJ is 7 therefore correct that the record does not support the finding that Plaintiff met 8 listing 1.02 on June 1, 2012. Thus, the ALJ reasonably rejected that portion of Dr. 9 Thompson’s opinion. 10 Plaintiff implies that the ALJ improperly failed to credit Dr. Thompson’s 11 testimony that she met a listing without either identifying the listing or any error in 12 the ALJ’s consideration of the evidence. Based on the foregoing, the ALJ’s reason 13 for rejecting a portion of Dr. Thompson’s opinion is specific, legitimate, and based 14 on substantial evidence. Plaintiff also asserts the ALJ had a duty to develop the 15 record regarding Plaintiff’s residual functional capacity after July 2013 but fails to 16 cite any authority or explain how a duty to develop the record was implicated in 17 this case. The Court declines to further elaborate on this issue which was not 18 argued with specificity. Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 19 1161 n.2 (9th Cir. 2007). 20 / / / 21 / / / ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 2 C. RFC, Hypothetical, and Step Four Plaintiff argues the ALJ erred at step four because the vocational expert’s 3 opinion that plaintiff can return to past relevant work was based on an incomplete 4 hypothetical. ECF No. 11 at 12-13. The ALJ’s hypothetical must be based on 5 medical assumptions supported by substantial evidence in the record which reflect 6 all of a claimant’s limitations. Osenbrook v. Apfel, 240 F.3D 1157, 1165 (9th Cir. 7 2001). The hypothetical should be “accurate, detailed, and supported by the 8 medical record.” Tackett, 180 F.3d at 1101. The ALJ is not bound to accept as 9 true the restrictions presented in a hypothetical question propounded by a 10 claimant’s counsel. Osenbrook, 240 F.3d at 1164; Magallanes v. Bowen, 881 F.2d 11 747, 756-57 (9th Cir. 1989); Martinez v. Heckler, 807 F.2d 771, 773 (9th Cir. 12 1986). The ALJ is free to accept or reject these restrictions as long as they are 13 supported by substantial evidence, even when there is conflicting medical 14 evidence. Magallanes, 881 F.2d at 756-57. 15 Plaintiff’s argument assumes that the ALJ erred in considering Dr. 16 Thompson’s testimony, Dr. Mullen’s opinions, and the findings of the Division of 17 Vocational Rehabilitation. ECF No. 11 at 13. The ALJ’s reason for rejecting a 18 portion of Dr. Thompson’s opinion was legally sufficient and supported by 19 substantial evidence, and the ALJ’s consideration of Dr. Mullen’s opinion and the 20 DVR findings was reasonable, as discussed supra. Plaintiff again failed to argue 21 this point with specificity and failed to demonstrate that the ALJ made any error of ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 fact or law in evaluating the record. The ALJ therefore properly excluded those 2 findings from the RFC and hypothetical to the vocational expert. The hypothetical 3 contained the limitations the ALJ found credible and supported by substantial 4 evidence in the record. The ALJ’s reliance on testimony the VE gave in response to 5 the hypothetical was therefore proper. See id.; Bayliss, 427 F. 3d at 1217-18. 6 CONCLUSION 7 Having reviewed the record and the ALJ’s findings, this Court concludes the 8 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 9 Accordingly, 10 1. Plaintiff’s Motion for Summary Judgment, ECF No. 11, is DENIED. 11 2. Defendant’s Motion for Summary Judgment, ECF No. 12, is 12 13 GRANTED. IT IS SO ORDERED. The District Court Clerk is directed to enter this 14 Order and provide copies to counsel. Judgment shall be entered for Defendant and 15 the file shall be CLOSED. 16 DATED January 18, 2019. 17 18 s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON United States District Judge 19 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19

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