Gillespie v. Commissioner of Social Security, No. 2:2018cv00150 - Document 18 (E.D. Wash. 2019)

Court Description: ORDER GRANTING 16 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING 11 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT. Case is CLOSED. Signed by Judge Rosanna Malouf Peterson. (LR, Case Administrator)

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Gillespie v. Commissioner of Social Security Doc. 18 1 2 3 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 4 Feb 25, 2019 SEAN F. MCAVOY, CLERK UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 BRITTANY G., NO: 2:18-CV-150-RMP Plaintiff, 8 v. 9 10 COMMISSIONER OF SOCIAL SECURITY, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 11 Defendant. 12 13 BEFORE THE COURT are cross-motions for summary judgment from 14 Plaintiff Brittany G., 1 ECF No. 11, and the Commissioner of Social Security, ECF 15 No. 16. Plaintiff seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the 16 Commissioner’s denial of her claims for benefits under Title XVI of the Social 17 Security Act (the “Act”). See ECF No. 11. The Court has considered the parties’ 18 briefings and the record, and is fully informed. 19 20 21 In the interest of protecting Plaintiff’s privacy, the Court will use Plaintiff’s first name and last initial, and, subsequently, Plaintiff’s first name only, throughout this decision. 1 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 BACKGROUND 2 A. Plaintiff’s Claim for Benefits and Procedural History 3 Plaintiff applied for social security through an application filed on June 23, 4 2015. Administrative Record (“AR”) 15. 2 Plaintiff alleged that her onset date was 5 November 15, 2013, but later amended the alleged onset date to December 14, 2014. 6 Id. Plaintiff was 21 years old at the time of her alleged onset date and 22 years old 7 on her amended alleged onset date. AR 93. She completed ten years of school. AR 8 54. The Commissioner initially denied Plaintiff’s applications for disability 9 insurance benefits and supplemental security income, and denied Plaintiff’s 10 applications upon reconsideration. AR 86–98, 100–123. Plaintiff timely requested a 11 hearing. AR 33–84. 12 B. February 16, 2017 Hearing 13 A hearing took place before Administrative Law Judge (“ALJ”) R.J. Payne on 14 February 16, 2017, with Plaintiff represented by attorney Dana Madsen. AR 33–84. 15 Plaintiff responded to questions from her attorney and Judge Payne. AR 52–76. 16 Fred Cutler, a vocational expert, and Dr. Marian Martin, a medical expert, also 17 appeared at the hearing. AR 36–52; 76–83. 18 / / / 19 / / / 20 21 2 The AR is filed at ECF No. 9. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 C. ALJ’s Decision 2 On April 24, 2017, the ALJ issued an unfavorable decision for Plaintiff. AR 3 15–26. Utilizing the five-step evaluation process, Judge Payne found: 4 Step one: Plaintiff had not engaged in substantial gainful activity since her 5 amended alleged onset date of December 15, 2014. AR 17. 6 Step two: Plaintiff has the following severe impairments: major depressive 7 episode, recurrent mild; anxiety disorder, NOS; unspecified personality 8 disorder; and rule out borderline intellectual functioning. AR 17. 9 Step three: Plaintiff does not have an impairment or combination of 10 impairments that meets or medically equals one of the listed impairments in 11 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 18. 12 Residual Functional Capacity (“RFC”): The ALJ found that Plaintiff had 13 the RFC to 14 15 16 17 18 19 20 Understand, remember and carry out simple routine work instructions and work tasks; would be best with verbal combined with hands on demonstration of work tasks versus written instructions; can have superficial contact with the general public; can work with or in the vicinity of coworkers, but not in a teamwork type work setting; can handle normal supervision but no over-the-shoulder or confrontational type of supervision; no fast paced or strict production quota type work; would do best in a routine work setting with little or no changes; and would do best with jobs not requiring reading, writing, or use of mathematics. AR 20. 21 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 Step four: Plaintiff is incapable of performing past relevant work. AR 25 2 (citing 20 C.F.R. § 416.965). Plaintiff’s past relevant work includes an 3 automobile service station attendant; animal care taker; and stock clerk. Id. 4 Step five: Considering Plaintiff’s education, work experience, and RFC, 5 Plaintiff can work jobs that exist in significant numbers in the national 6 economy. AR 25. Specifically, the ALJ found that Plaintiff can work as an 7 agricultural produce packer, agricultural sorter, or cafeteria attendant. AR 25– 8 26. 9 The ALJ’s decision became the final decision of the Commissioner when the 10 Appeals Council denied Plaintiff’s request for review on November 20, 2017. AR 11 1–4. Plaintiff now seeks judicial review. 12 APPLICABLE LEGAL STANDARDS 13 A. Standard of Review 14 Congress has provided a limited scope of judicial review of a Commissioner’s 15 decision. 42 U.S.C. § 405(g). A court may set aside the Commissioner’s denial of 16 benefits only if the ALJ’s determination was based on legal error or not supported by 17 substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (citing 18 42 U.S.C. § 405(g)). “The [Commissioner’s] determination that a claimant is not 19 disabled will be upheld if the findings of fact are supported by substantial evidence.” 20 Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 1983) (citing 42 U.S.C. § 405(g)). 21 Substantial evidence is more than a mere scintilla, but less than a preponderance. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975); McCallister v. 2 Sullivan, 888 F.2d 599, 601–02 (9th Cir. 1989). Substantial evidence “means such 3 evidence as a reasonable mind might accept as adequate to support a conclusion.” 4 Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations omitted). “[S]uch 5 inferences and conclusions as the [Commissioner] may reasonably draw from the 6 evidence” will also be upheld. Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 7 1965). On review, the district court considers the record as a whole, not just the 8 evidence supporting the decisions of the Commissioner. Weetman v. Sullivan, 877 9 F.2d 20, 22 (9th Cir. 1989) (quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 10 1980)). 11 It is the role of the trier of fact, not the reviewing court, to resolve conflicts in 12 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational 13 interpretation, the court may not substitute its judgment for that of the 14 Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999); Allen v. 15 Heckler, 749 F.2d 577, 579 (9th Cir. 1984). Nevertheless, a decision supported by 16 substantial evidence will still be set aside if the proper legal standards were not 17 applied in weighing the evidence and making a decision. Brawner v. Sec’y of Health 18 & Human Servs., 839 F.2d 432, 433 (9th Cir. 1988). Thus, if there is substantial 19 evidence to support the administrative findings, or if there is conflicting evidence 20 that will support a finding of either disability or nondisability, the finding of the 21 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 Commissioner is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229–30 (9th Cir. 2 1987). 3 B. Definition of Disability 4 The Social Security Act defines “disability” as the “inability to engage in any 5 substantial gainful activity by reason of any medically determinable physical or 6 mental impairment which can be expected to result in death or which has lasted or 7 can be expected to last for a continuous period of not less than 12 months.” 42 8 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a claimant shall 9 be determined to be under a disability only if her impairments are of such severity 10 that the claimant is not only unable to do her previous work, but cannot, considering 11 the claimant’s age, education, and work experiences, engage in any other substantial 12 gainful work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 13 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and 14 vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 15 C. Sequential Evaluation Process 16 The Commissioner has established a five-step sequential evaluation process 17 for determining whether a claimant is disabled. 20 C.F.R. § 416.920. At step one, 18 the decision maker determines if the claimant is engaged in substantial gainful 19 activities. If the claimant is engaged in substantial gainful activities, benefits are 20 denied. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). 21 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 If the claimant is not engaged in substantial gainful activities, the decision 2 maker proceeds to step two and determines whether the claimant has a medically 3 severe impairment or combination of impairments. 20 C.F.R. §§ 404.1520(a)(4)(ii), 4 416.920(a)(4)(ii). If the claimant does not have a severe impairment or combination 5 of impairments, the disability claim is denied. 6 If the impairment is severe, the evaluation proceeds to the third step, in which 7 the decision maker compares the claimant’s impairment with a number of listed 8 impairments acknowledged by the Commissioner to be so severe as to preclude any 9 gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); see also 20 10 C.F.R. § 404, Subpt. P, App. 1. If the impairment meets or equals one of the listed 11 impairments, the claimant is conclusively presumed to be disabled. 12 If the impairment is not one conclusively presumed to be disabling, the 13 evaluation proceeds to the fourth step, in which the decision maker determines 14 whether the impairment prevents the claimant from performing work that she has 15 performed in the past. If the plaintiff is able to perform her previous work, the 16 claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this 17 step, the claimant’s RFC assessment is considered. 18 If the claimant cannot perform this work, the fifth and final step in the process 19 is to determine whether the claimant is able to perform other work in the national 20 economy considering her RFC, age, education, and past work experience. 20 C.F.R. 21 §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 The initial burden of proof rests upon the claimant to establish a prima facie 2 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 3 Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden 4 is met once the claimant establishes that a physical or mental impairment prevents 5 her from engaging in her previous occupation. Meanel, 172 F.3d at 1113. The 6 burden then shifts, at step five, to the Commissioner to show that (1) the claimant 7 can perform other substantial gainful activity, and (2) a “significant number of jobs 8 exist in the national economy” which the claimant can perform. Kail v. Heckler, 722 9 F.2d 1496, 1498 (9th Cir. 1984). 10 11 ISSUES ON APPEAL I. 12 Did the ALJ improperly discredit Brittany’s subjective testimony about her symptoms? 13 II. Did the ALJ properly consider and weigh the opinion evidence? 14 III. Did the ALJ’s hypothetical question to the vocational expert lack 15 evidentiary basis? 16 17 DISCUSSION Brittany’s Subjective Symptom Testimony 18 The parties dispute whether the ALJ properly discredited Brittany’s testimony 19 regarding the severity of her symptoms when creating Brittany’s RFC. ECF No. 11 20 at 15; ECF No. 16 at 4. 21 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 When assessing the credibility of the claimant’s subjective testimony, the ALJ 2 engages in a two-step analysis. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 3 2012). First, the ALJ determines whether there is “objective medical evidence of an 4 underlying impairment which could reasonably be expected to produce the pain or 5 other symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 6 2007). If the objective medical evidence exists, and there is no evidence that the 7 claimant is malingering, the ALJ must provide clear and convincing reasons 8 supported by substantial evidence for rejecting the claimant’s testimony. Smolen, 80 9 F.3d at 1281–84. To find a claimant not credible, the ALJ must rely on reasons 10 unrelated to the claimant’s testimony, conflicts between the claimant’s testimony 11 and the claimant’s conduct, or internal contradictions in the testimony. Light v. Soc. 12 Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). Additionally, evidence of 13 conservative treatment or a complete failure to seek treatment can support 14 discrediting a claimant’s testimony. Molina, 674 F.3d at 1112; Parra v. Astrue, 481 15 F.3d 742, 750–51 (9th Cir. 2007). But an ALJ cannot reject a claimant’s subjective 16 pain testimony solely based on a lack of support from objective medical evidence. 17 Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). 18 If an ALJ finds that the claimant spends a substantial part of her day engaged 19 in activities transferable to a work environment, then the ALJ may discredit the 20 claimant’s testimony. Vertigan v. Halter, 260 F.3d 1044, 1049–50 (9th Cir. 2001). 21 However, carrying on certain daily activities does not detract from a claimant’s ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 testimony if those activities are not necessarily transferable to a work setting. Id. 2 The Social Security Act does not require claimants be utterly incapacitated to be 3 disabled. Fair, 885 F.2d at 603. 4 A general assertion that the claimant is not credible is insufficient; the ALJ 5 must “state which . . . testimony is not credible and what evidence suggests the 6 complaints are not credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 7 The reasons proffered must be “sufficiently specific to permit the reviewing court to 8 conclude that the ALJ did not arbitrarily discredit the claimant's testimony.” Orteza 9 v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citation omitted). 10 At the first step of evaluating Brittany’s symptoms, the ALJ found that 11 Brittany had ailments that could reasonably produce Brittany’s alleged symptoms. 12 AR 22. However, at the second step, the ALJ found that Brittany’s testimony on the 13 intensity, persistence, and limiting effects of the symptoms were not consistent with 14 other evidence in the record. Id. Specifically, the ALJ found that Brittany was 15 resistant to treatment options, including counseling and medication. Id. The ALJ 16 also found that Brittany’s symptoms were mild at most based on her testimony’s 17 contradictions with the objective medical evidence. Id. Further, the ALJ found that 18 Brittany reported inconsistent symptoms over a short period of time. Id. For these 19 reasons, the ALJ found that Brittany’s testimony on her symptoms were “somewhat 20 overstated when compared to the medical evidence.” AR 24. 21 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 Brittany objects to the ALJ’s findings because she claims the ALJ rejected her 2 testimony for a lack of support from objective medical evidence and “failed to 3 provide specific findings with clear and convincing reasons for discrediting 4 [Brittany’s] symptom claims.” ECF No. 11 at 16. She claims that her testimony 5 was consistent with the clinic and counseling records provided in the record. Id. 6 Specifically, she argues that the ALJ’s reasoning supporting his conclusions on 7 Brittany’s alleged minimal treatment, hallucinations, and daily activities are not 8 clear and convincing. ECF No. 17 at 2–7. 9 As to the alleged claims of minimal treatment for her mental impairments, the 10 ALJ found that Brittany did receive counseling, but often cancelled or missed 11 appointments until she was discharged for lack of compliance. AR 22. This finding 12 is supported by the record. AR 422, 433, 443–44, 446, 448–49, 468, 490. 13 Additionally, when she did show up for her appointments, she would state she did 14 not want to be there; that her appointments did not help her; and that she was only 15 there because DSHS told her that she had to go. AR 422–23, 425, 432, 436, 457, 16 492. Brittany received a prescription for depression, but she stated that there were 17 complications in referring the prescription to her pharmacist, and never ended up 18 trying to get that medication. AR 65–66. Further, the ALJ’s remarks on Brittany’s 19 hallucinations recognized an inconsistency in Brittany’s mental symptoms over a 20 short period of time. AR 22. In a counseling session in June of 2015, Brittany 21 reported having visual hallucinations. AR 426. However, in examinations in ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 August and September of 2015, Brittany denied having any hallucinations. AR 481, 2 486. The ALJ’s findings as to Brittany’s minimal treatment and hallucinations are 3 supported by the record, and the ALJ did not arbitrarily discredit her testimony. See 4 Orteza, 50 F.3d at 750. 5 In support of her argument that the ALJ improperly discredited her testimony 6 with reference to her daily activities, Brittany cited several cases in which courts 7 found social security claimants disabled despite the claimants being able to complete 8 some activities. ECF No. 17 at 4–7. But the cases are not comparable because each 9 case involved medical conditions different from Brittany’s. See Garrison v. Colvin, 10 759 F.3d 995, 1015 (9th Cir. 2014) (chronic back and neck pain, degenerative joint 11 disease, sciatica, obesity, asthma, and herniated discs); Vertigan, 260 F.3d at 1049 12 (chronic back pain syndrome); Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) 13 (chronic fatigue syndrome); Purvis v. Comm’r of Soc. Sec. Admin., 57 F. Supp. 2d 14 1088, 1094 (D. Or. 1999) (bipolar disorder, chest pain, diabetes, obesity, affective 15 disorder, and substance addiction disorder). When evaluating a claimant’s daily 16 activities, the question is not whether the activities have been previously found to be 17 dispositive on a finding of disability, but rather whether the claimant spends a 18 substantial part of her day engaged in activities transferable to a work environment, 19 or whether her daily activities conflict with her alleged symptoms. Vertigan, 260 20 F.3d at 1049–50; Light, 119 F.3d at 792. 21 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 Here, the ALJ found Brittany not entirely credible in part because her daily 2 activities did not match her alleged symptoms. AR 21–22. Despite claiming that 3 she has difficulty concentrating and staying focused, Brittany completes several 4 tasks around the home, cares for her son, and looks after her pet. AR 21. She also 5 performs household tasks like cleaning, doing laundry, and preparing meals. Id. 6 Additionally, she can pay bills, handle bank accounts, and count change. Id. While 7 Brittany claims that her “primary problem is having trouble leaving her home and 8 dealing with the stresses of activities outside of her home,” she testified that she has 9 never had a panic attack outside of her home, and frequently leaves her home with 10 her boyfriend or her son. ECF No. 17 at 6; AR 21. The ALJ’s findings are 11 supported by Brittany’s own testimony and reasonably lead to the conclusion that 12 Brittany’s activities are transferable to a work setting and conflict with the alleged 13 severity of her symptoms. AR 52–76. 14 Brittany essentially asks the Court to re-evaluate the evidence in the record 15 and reverse the findings of the ALJ as to Brittany’s credibility. See ECF No. 11 at 16 16–17; ECF No. 17 at 2–7. But unless the ALJ commits legal error, the Court will 17 not reverse an ALJ’s conclusions when the conclusions are supported by substantial 18 evidence. Jones, 760 F.2d at 995. Even though Brittany argues that the ALJ 19 committed legal error by discrediting her testimony for a lack of substantive 20 affirmation by the objective medical evidence, ECF No. 11 at 16–17, the ALJ 21 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 discredited her testimony because it conflicted with the objective medical evidence. 2 Light, 119 F.3d at 792. The ALJ did not commit legal error. 3 The ALJ gave clear and convincing reasons to discredit Brittany’s testimony, 4 and those reasons were supported by substantial evidence. Smolen, 80 F.3d at 1281– 5 84. The Court finds the ALJ did not err when he discredited Brittany’s testimony. 6 The Weight Given to the Opinion Evidence 7 8 Brittany argues that the ALJ failed to properly consider and weigh the opinion evidence. ECF No. 11 at 18. 9 With respect to medical opinions, an ALJ must afford more weight to a 10 treating physician’s opinion than an examining physician’s, and an examining 11 physician’s opinion carries more weight than a non-examining, reviewing, or 12 consulting physician’s opinion. Benecke v. Barnhart, 379 F.3d 587, 592 (9th Cir. 13 2004); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Greater weight may be 14 given to a non-examining physician if that physician testifies at a hearing and is 15 subjected to cross-examination. Andrews v. Shalala, 53 F.3d 1035, 1042 (9th Cir. 16 1995). An ALJ only can reject uncontradicted opinions of a treating or examining 17 physician with clear and convincing reasons. Lester, 81 F.3d at 830. If a 18 physician’s opinion is contradicted, then the ALJ can reject that opinion with 19 specific and legitimate reasons that are based on substantial evidence in the record. 20 Andrews, 53 F.3d at 1041. 21 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 Brittany argues that the ALJ failed to present a thorough summary of the facts 2 and conflicting clinical evidence before rejecting an examining physician’s opinion 3 with specific and legitimate reasons. ECF No. 11 at 17. However, Brittany fails to 4 mention in either her motion for summary judgment or her reply brief which 5 examining physician’s testimony was improperly rejected. See ECF Nos. 11 & 17. 6 In his decision, the ALJ considered the opinions of two examining physicians, 7 a non-examining testifying physician, and two non-examining non-testifying 8 physicians. AR 23–24. He assigned great weight to the two examining physicians 9 and the testifying non-examining physician, while assigning some weight to the two 10 non-examining non-testifying physicians because they were not able to evaluate the 11 entire medical record. Id. The ALJ did not reject the opinions of the non-examining 12 non-testifying physicians, so it is unclear to what Brittany refers when she states that 13 the ALJ did not justify the rejection of an examining physician’s opinion with 14 specific and legitimate reasons. ECF No. 11 at 17. 15 For these reasons, the Court finds that the ALJ properly considered and 16 weighed the opinion evidence. 17 The Evidentiary Basis for the Hypothetical Question 18 19 20 21 Brittany argues that the hypothetical question posed to the vocational expert at her hearing lacked an evidentiary basis. ECF No. 11 at 17. If a claimant shows that she cannot return to her previous job, the Commissioner holds the burden of proving that the claimant may engage in ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 substantial gainful activity considering the claimant’s age, education, work 2 experience, and limitations. DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 3 1991). The Commissioner usually meets this burden through the use of a vocational 4 expert. Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). Hypothetical 5 questions posed to vocational experts must set out all the limitations and restrictions 6 of the claimant. Id. If the ALJ fails to include all limitations, then the vocational 7 expert’s testimony “has no evidentiary value.” Gallant v. Heckler, 753 F.2d 1450, 8 1456 (9th Cir. 1984). But the ALJ does not have to include limitations in the 9 hypothetical question that are not supported by substantial evidence in the record. 10 11 Bayliss v. Barnhart, 427 F.3d 1211, 1217–18 (9th Cir. 2005). Brittany argues that “[t]he failure to include the mental impairment in the 12 hypotheticals alone was sufficient to require a remand.” ECF No. 11 at 18. 13 However, the ALJ’s hypothetical included her mental impairments. The ALJ’s 14 hypothetical question presented a claimant that had a ninth-grade education; had an 15 average ability to read and write and use numbers; had some mental limitation; 16 could understand, remember, and carry out simple, routine instructions and work 17 tasks; only could have superficial contact with the general public; only could work 18 with or in the vicinity of coworkers and not in a team-type setting; and would do 19 best in jobs not requiring reading, writing, or mathematics. AR 80. These were all 20 mental limitations supported by substantial evidence in the record. 21 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 When Brittany’s attorney cross-examined Fred Cutler, the vocational expert, 2 he asked Mr. Cutler to additionally consider that the individual in the hypothetical 3 would have six or seven panic attacks per week; would have to lie down for half an 4 hour to endure the panic attacks; and that the person could only leave the house five 5 times every two weeks. AR 82. To any extent Brittany argues that these limitations 6 should have been included in the original hypothetical, that argument is without 7 merit. The ALJ found that these limitations were not supported by the record, 8 evidenced by Brittany’s own testimony. AR 21. Specifically, the ALJ found that 9 Brittany had never had a panic attack outside of her home and that she leaves her 10 home several times per week. Id.; see also AR 72 (“I don’t think I’ve had one 11 outside of my house, not a panic attack, no.”). Because the ALJ does not have to 12 include limitations in a hypothetical question when those limitations are not 13 supported by substantial evidence in the record, the ALJ was not obligated to include 14 these additional limitations in his hypothetical question to Mr. Cutler. Bayliss, 427 15 F.3d at 1217–18. 16 17 18 19 20 The ALJ did not err by omitting limitations from his hypothetical question proposed to the vocational expert. CONCLUSION Having found that the ALJ did not err in his decision, the Court grants the Commissioner’s motion and denies Brittany’s motion. Because the Court finds no 21 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 error, the Court does not address Brittany’s arguments as to the harmfulness of any 2 error or a remand with instructions to award benefits. ECF No. 11 at 18. 3 Accordingly, IT IS HEREBY ORDERED: 4 1. Plaintiff’s Motion for Summary Judgment, ECF No. 11, is DENIED. 5 2. Defendant’s Motion for Summary Judgment, ECF No. 16, is 6 GRANTED. 7 3. 8 IT IS SO ORDERED. The District Court Clerk is directed to enter this 9 10 Judgment shall be entered in favor of Defendant Order, provide copies to counsel, enter judgment as directed, and close this case. DATED February 25, 2019. 11 12 s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON United States District Judge 13 14 15 16 17 18 19 20 21 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 18

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