Huard-Higgins v. Colvin, No. 1:2014cv03029 - Document 20 (E.D. Wash. 2015)
Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Denying 12 Plaintiff's Motion for Summary Judgment; granting 16 Defendant's Motion for Summary Judgment. Signed by Senior Judge Robert H. Whaley. (SK, Case Administrator)
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Huard-Higgins v. Colvin Doc. 20 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 BRIDGETTE J. HUARD-HIGGINS, 8 Plaintiff, 9 v. 10 11 12 13 CAROLYN W. COLVIN, Acting Commissioner of Social Security, No. 1:14-CV-03029-RHW ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant. Before the Court are the parties’ cross-motions for summary judgment, ECF 14 Nos. 12 & 16. Thomas Bothwell represents Bridgette J. Huard-Higgins 15 (“Plaintiff” or “Claimant”), and Special Assistant United States Attorney Daphne 16 Banay represents Defendant Commissioner of Social Security (the 17 “Commissioner”). Plaintiff brings this action seeking judicial review, pursuant to 18 42 U.S.C. § 405(g), of the Commissioner’s final decision, which denied her 19 application for Disability Insurance Benefits (“DIB”) and Supplemental Security 20 Income (“SSI”) under Titles II & XVI of the Social Security Act, 42 U.S.C §§ 401- ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 434 & 1381-1383F . After reviewing the administrative record and briefs filed by 2 the parties, the Court is now fully informed. For the reasons set forth below, the 3 Court grants Defendant’s Motion for Summary judgment, and directs entry of 4 judgment in favor of Defendant. 5 6 I. Jurisdiction Plaintiff filed concurrent applications for DIB and SSI on January 4, 2011. 7 Tr. 192-205. Plaintiff’s application was initially denied on July 26, 2011, Tr. 127- 8 130, and on reconsideration on September 7, 2011. Tr. 134-144. Plaintiff filed a 9 written request for hearing on September 13, 2011. Tr. 146-147. On October 11, 10 2012, Administrative Law Judge (“ALJ”) Laura Valente held a video hearing in 11 Seattle, Washington. Tr. 31-74. On November 7, 2012, the ALJ issued a decision 12 finding Plaintiff ineligible for SSI and DIB payments. Tr. 14-25. The Appeals 13 Council denied Plaintiff’s request for review on January 22, 2014, Tr. 1-3, making 14 the ALJ’s ruling the “final decision” of the Commissioner. Plaintiff timely filed 15 the present action challenging the denial of benefits, and accordingly, Plaintiff’s 16 claims are properly before this Court pursuant to 42 U.S.C. § 405(g). 17 18 II. Sequential Evaluation Process The Social Security Act defines disability as the “inability to engage in any 19 substantial gainful activity by reason of any medically determinable physical or 20 mental impairment which can be expected to result in death or which has lasted or ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 can be expected to last for a continuous period of not less than twelve months.” 42 2 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be 3 under a disability only if the claimant’s impairments are of such severity that the 4 claimant is not only unable to do his previous work, but cannot, considering 5 claimant's age, education, and work experience, engage in any other substantial 6 gainful work that exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A) & 7 1382c(a)(3)(B). 8 9 The Commissioner has established a five-step sequential evaluation process for determining whether a claimant is disabled within the meaning of the Social 10 Security Act. 20 C.F.R. §§ 404.1520(a)(4) & 416.920(a)(4); Lounsburry v. 11 Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). 12 Step one inquires whether the claimant is presently engaged in “substantial 13 gainful activity.” 20 C.F.R. §§ 404.1520(b) & 416.920(b). Substantial gainful 14 activity is defined as significant physical or mental activities done or usually done 15 for profit. 20 C.F.R. §§ 404.1572 & 416.972. If the claimant is engaged in 16 substantial activity, he or she is not entitled to disability benefits. 20 C.F.R. §§ 17 404.1571 & 416.920(b). If not, the ALJ proceeds to step two. 18 Step two asks whether the claimant has a severe impairment, or combination 19 of impairments, that significantly limits the claimant’s physical or mental ability to 20 do basic work activities. 20 C.F.R. §§ 404.1520(c) & 416.920(c). A severe ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 impairment is one that has lasted or is expected to last for at least twelve months, 2 and must be proven by objective medical evidence. 20 C.F.R. §§ 404.1508-09 & 3 416.908-09. If the claimant does not have a severe impairment, or combination of 4 impairments, the disability claim is denied, and no further evaluative steps are 5 required. Otherwise, the evaluation proceeds to the third step. 6 Step three involves a determination of whether any of the claimant’s severe 7 impairments “meets or equals” one of the listed impairments acknowledged by the 8 Commissioner to be sufficiently severe as to preclude substantial gainful activity. 9 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526 & 416.920(d), 416.925, 416.926; 10 20 C.F.R. § 404 Subpt. P. App. 1 (“the Listings”). If the impairment meets or 11 equals one of the listed impairments, the claimant is per se disabled and qualifies 12 for benefits. Id. If the claimant is not per se disabled, the evaluation proceeds to 13 the fourth step. 14 Step four examines whether the claimant’s residual functional capacity 15 enables the claimant to perform past relevant work. 20 C.F.R. §§ 404.1520(e)-(f) 16 & 416.920(e)-(f). If the claimant can still perform past relevant work, the claimant 17 is not entitled to disability benefits and the inquiry ends. Id. 18 Step five shifts the burden to the Commissioner to prove that the claimant is 19 able to perform other work in the national economy, taking into account the 20 claimant’s age, education, and work experience. See 20 C.F.R. §§ 404.1512(f), ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 404.1520(g), 404.1560(c) & 416.912(f), 416.920(g), 416.960(c). To meet this 2 burden, the Commissioner must establish that (1) the claimant is capable of 3 performing other work; and (2) such work exists in “significant numbers in the 4 national economy.” 20 C.F.R. §§ 404.1560(c)(2); 416.960(c)(2); Beltran v. Astrue, 5 676 F.3d 1203, 1206 (9th Cir. 2012). 6 7 III. Standard of Review A district court's review of a final decision of the Commissioner is governed 8 by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited, and the 9 Commissioner's decision will be disturbed “only if it is not supported by 10 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1144, 11 1158-59 (9th Cir. 2012) (citing § 405(g)). Substantial evidence means “more than 12 a mere scintilla but less than a preponderance; it is such relevant evidence as a 13 reasonable mind might accept as adequate to support a conclusion.” Sandgathe v. 14 Chater, 108 F.3d 978, 980 (9th Cir.1997) (quoting Andrews v. Shalala, 53 F.3d 15 1035, 1039 (9th Cir. 1995)) (internal quotation marks omitted). In determining 16 whether the Commissioner’s findings are supported by substantial evidence, “a 17 reviewing court must consider the entire record as a whole and may not affirm 18 simply by isolating a specific quantum of supporting evidence.” Robbins v. Soc. 19 Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen, 879 20 F.2d 498, 501 (9th Cir. 1989)). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 In reviewing a denial of benefits, a district court may not substitute its 2 judgment for that of the ALJ. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 3 1992). If the evidence in the record “is susceptible to more than one rational 4 interpretation, [the court] must uphold the ALJ's findings if they are supported by 5 inferences reasonably drawn from the record.” Molina v. Astrue, 674 F.3d 1104, 6 1111 (9th Cir. 2012); see also Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 7 2002) (if the “evidence is susceptible to more than one rational interpretation, one 8 of which supports the ALJ’s decision, the conclusion must be upheld”). Moreover, 9 a district court “may not reverse an ALJ's decision on account of an error that is 10 harmless.” Molina, 674 F.3d at 1111. An error is harmless “where it is 11 inconsequential to the [ALJ's] ultimate nondisability determination.” Id. at 1115. 12 The burden of showing that an error is harmful generally falls upon the party 13 appealing the ALJ's decision. Shinseki v. Sanders, 556 U.S. 396, 409–10 (2009). 14 15 IV. Statement of Facts The facts of the case are set forth in detail in the transcript of proceedings, 16 and only briefly summarized here. Plaintiff was 39 years old as of her alleged onset 17 date of disability. Tr. 192. Plaintiff has a high school education, plus 18 approximately six years of college education. Tr. 38. Her past relevant experience 19 includes work as a social services coordinator, a social worker, an eligibility 20 worker, an adult education teacher, and a banquet server. Tr. 23. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 Plaintiff alleges she is unable to work due to physical and mental 2 impairments, including gastrointestinal problems, fibromyalgia, post-traumatic 3 stress disorder (“PTSD”), depression, and anxiety. Tr. 35-38. Plaintiff reports a 4 history of abuse in childhood and adulthood that has resulted in sleep disorders. Tr. 5 37. 6 7 V. The ALJ’s Findings The ALJ determined that Plaintiff was not disabled under the Act and denied 8 her SSI and DIB applications, which were filed on January 4, 2011. Tr. 14-25. 9 At step one, the ALJ found that Plaintiff had not engaged in substantial 10 gainful activity since December 27, 2010, her alleged onset date. Tr. 16 (citing 20 11 C.F.R. §§ 404.1571 et seq. & 416.971 et seq.). 12 At step two, the ALJ found Plaintiff had the following severe impairments: 13 gastroparesis, contusions secondary to a motor vehicle accident, affective disorder, 14 and anxiety disorder. Tr. 16-17. (citing 20 C.F.R. §§ 404.1520(c) & 416.920(c)). 15 Tr. 28. 16 At step three, the ALJ found that Plaintiff did not have an impairment or 17 combination of impairments that meets or medically equals the severity of one of 18 the listed impairments in 20 C.F.R. §§ 404, Subpt. P, App. 1 (the “Listings”), 19 416.925, and 416.926 . Tr. 17. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 At step four, relying on the vocational expert’s testimony, the ALJ found 2 Plaintiff had the residual functional capacity (“RFC”) to perform a range of light 3 work as defined in 20 CFR §§ 404.1567(b) and 416.967(b) except to perform tasks 4 that involve about six hours of sitting and about six hours of standing/walking in 5 an eight hour day. Tr. 19. The ALJ found Plaintiff able to occasionally climb 6 ladders, ropes, and scaffolds, and she can frequently kneel; however, she cannot 7 experience concentrated exposure to heat or cold, vibration, or workplace hazards. 8 Id. The ALJ found Plaintiff could sufficiently concentrate, understand, remember, 9 and carry out simple, routine tasks and detailed tasks during two-hour increments 10 with customary breaks. Id. She was also found able to interact occasionally with 11 supervisors and the general public. Id. 12 Thus, the ALJ concluded that Plaintiff is capable of performing past relevant 13 work as a social services coordinator, a social worker, an eligibility worker, an 14 adult education teacher, and a banquet server because the work does not require the 15 performance of work related activities precluded by Plaintiff’s residual functional 16 capacity. Tr. 23. 17 At step five, and in the alternative, the ALJ also found that after considering 18 her age, education, work experience, and RFC, there are other jobs that exist in 19 significant numbers in the national economy that Plaintiff can also perform. Tr. 24. 20 /// ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 2 VI. Issues for Review Plaintiff argues that the Commissioner’s decision is not free of legal error 3 and not supported by substantial evidence. ECF No. 12. More specifically, Plaintiff 4 alleges that the ALJ erred by: (1) improperly rejecting the opinion of Plaintiff’s 5 examining medical providers; (2) failing to conduct an adequate step four analysis; 6 and (3) failing to meet her step five burden to identify specific jobs, available in 7 significant numbers, which Plaintiff could perform in light of her specific 8 functional limitations. ECF No. 12 at 7. 9 10 11 12 13 VII. Discussion A. The ALJ Properly Rejected the Opinions of Plaintiff’s Treating and Examining Medical Providers. 1. Legal Standard. The Ninth Circuit has distinguished between three classes of medical 14 providers in defining the weight to be given to their opinions: (1) treating 15 providers, who actually treat the claimant; (2) examining providers, who examine 16 but do not treat the claimant; and (3) non-examining providers, who neither treat 17 nor examine the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). 18 A treating provider’s opinion is given the most weight, followed by an 19 examining provider, and finally a non-examining provider. Id. at 803-31. In the 20 absence of a contrary opinion, a treating or examining provider’s opinion may not ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 be rejected unless “clear and convincing” reasons are provided. Id. at 830. If a 2 treating or examining provider’s opinion is contradicted, it may only be discounted 3 for “specific and legitimate reasons that are supported by substantial evidence in 4 the record.” Id. at 830-31. 5 The ALJ may meet the specific and legitimate standard by “setting out a 6 detailed and thorough summary of the facts and conflicting clinical evidence, 7 stating his interpretation thereof, and making findings.” Magallanes v. Bowen, 881 8 F.2d 747, 751 (9th Cir. 1989) (internal citation omitted). When rejecting a treating 9 provider’s opinion on a psychological impairment, the ALJ must offer more than 10 her own conclusions and explain why she, as opposed to the provider, is correct. 11 Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). 12 2. The ALJ provided specific and legitimate reasons for rejecting the 13 providers’ opinions based on substantial evidence in the record. 14 The opinions at issue in this review include two treating physicians, Drs. 15 Lindgren and Warninger; one examining physician, Dr. Torres-Saenz; one 16 examining nurse practitioner, Ms. Hoeniges; and non-examining state medical and 17 psychological experts. The opinions regarding Plaintiff’s ability to perform 18 relevant work are contradictory. Thus, the “specific and legitimate” standard 19 applies. 20 a. The opinions of Drs. Lindgren and Warninger. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 Two of Plaintiff’s treating physicians, Dr. Lindgren and Dr. Warninger, 2 provided opinions that they do not believe Plaintiff is capable of performing any 3 work on a routine, continuous, and sustained basis. TR. 581, 591. The ALJ based 4 her rejection of these opinions because they are inconsistent with the medical 5 record and because “the question of whether an individual is disabled (or able to 6 work) is outside the medical realm.” Tr. 22. 7 Further, the opinions in controversy were the result of questionnaires 8 provided to the physicians by Plaintiff’s attorney. Tr. 580-81, 590-91. The 9 questionnaires did not provide explanations for the opinions, but the doctors were 10 limited only to check a box indicating the level of work they believed the Claimant 11 was capable of performing. Id. The ALJ was unpersuaded by these questionnaires 12 not only because they lacked elaboration, but because they were inconsistent with 13 the medical records. 14 In her ruling, the ALJ pointed to multiple instances in the medical record 15 and testimony of Plaintiff and her mother at the hearing that demonstrate Plaintiff’s 16 ability to manage multiple physical, social, and mental functions. These included: 17 grocery shopping, light household chores and meal preparation, caring for her 18 personal hygiene, picking her son up from school, attending his school plays, 19 writing, scrapbooking, and working out at a gym. Tr. 20-22. Based on these 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 activities, the ALJ found that the Claimant was reasonably able to do light work 2 because medication allowed her to manage a variety of daily affairs. Tr. 22. 3 The ALJ also noted instances where the doctors’ own records contradicted 4 the opinion that Plaintiff was unable to perform any type of regular work. For 5 example, in an August 2012 report, Dr. Lindgren noted the Claimant’s medication 6 regimen enabled her to function during the day with regular breaks. Tr. 471. This 7 information was particularly persuasive to the ALJ, who also noted that this was 8 contrary to the Claimant’s allegation that she must spend several hours lying down 9 per day. Tr. 21. 10 To the extent that there is more than one rational interpretation of the record, 11 the ALJ’s findings must be upheld when, as here, they are supported by reasonably 12 drawn inferences. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). (“Even 13 when the evidence is susceptible to more than one rational interpretation, we must 14 uphold the ALJ’s findings if they are supported by inferences reasonably drawn 15 from the record”). The ALJ cited to specific and legitimate evidence in the medical 16 record to properly explain her decision to reject the opinions of Drs. Lindgren and 17 Warninger that the Claimant was unable to perform any consistent work.1 18 19 20 1 The ALJ’s assertion that the providers cannot give opinions on the ultimate issue of disability is inaccurate, see Reddick v. Chater, 157 F.3d 715 (9 th Cir. 1998), but because the ALJ provided specific and legitimate reasons supported by substantial evidence on the record to reject the opinions, this error was harmless and further explanation is unnecessary. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 b. Dr. Torres-Saenz’ opinion. 2 Plaintiff asserts that the ALJ erred when she gave partial weight to the assessment 3 of examining psychologist Dr. Torres- Saenz. ECF No. 12 at 15. However, in her 4 ruling, the ALJ pointed to multiple examples in the record and also explained that 5 Dr. Torres-Saenz’ opinion “appears to rely uncritically on the claimant’s own 6 report.” Tr. 22. 7 While Dr. Torres-Saenz does note some physical and mental limitations, his 8 records generally demonstrate Plaintiff’s ability to function. Tr. 347-352. In his 9 report, Dr. Torres-Saenz found Plaintiff to be independent in self-care and able to 10 manage her own finances. Tr. 347-349. Plaintiff showed no memory or 11 concentration problems during testing. Tr. 349. Dr. Torres-Saenz noted that she 12 had “some difficulty” finishing her daily activities in a timely manner, but she was 13 able to complete tasks. Tr. 350. The ALJ also took special note of the records from 14 Dr. Torres-Saenz that reflect the Claimant’s ability to concentrate on hobbies, such 15 as writing and scrapbooking. Tr. 21; 350. 16 The ALJ also pointed to the contradictory findings of Dr. Lindgren that the 17 Claimant’s medication allowed her to “generally function during the day,” and that 18 both the Claimant and her mother testified that she “generally finishes what she 19 starts.” Id. This contradicts Dr. Torres-Saenz’ opinion that Plaintiff is unable to 20 perform any work. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 In her ruling, the ALJ provided specific and legitimate reasons that is 2 substantiated by the record to give only partial weight to Dr. Torres-Saenz’ opinion 3 that Plaintiff was unable to perform any work. The Court will not disturb the ALJ’s 4 decision regarding Dr. Torres-Saenz’ opinion. 5 c. Ms. Hoeniges’ opinion. 6 Pursuant to Dodrill v. Shalala, 12 F.3d 915 (9th Cir.1993), an ALJ is 7 obligated to give reasons germane to “other source” testimony before discounting 8 it. “Other sources” include nurse practitioners. 20 C.F.R. §§ 404.1513(d), 9 416.913(d). Defendant concedes that the ALJ did not address or provide any 10 reasons to reject the opinion of Advanced Registered Nurse Practitioner 11 (“A.R.N.P.”) Robin Hoeniges. ECF No. 16 at 14. Ms. Hoeniges opined that the 12 Claimant suffered from gastroparesis, had chronic pain and fatigue, could not sit 13 for extended periods of time, was unable to participate in work activities, and was 14 limited to sedentary work. Tr. 341-42. Defendant asserts this was harmless error 15 and insufficient to result in remand. ECF No. 16 at 14. 16 An error may be considered harmless where it “occurred during an 17 unnecessary exercise or procedure”; is non-prejudicial to the Plaintiff; is 18 considered irrelevant to the determination of non-disability; or if the reviewing 19 court can “confidently conclude” that no reasonable ALJ could have reached a 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 different disability determination if erroneously disregarded testimony was 2 credited. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006). 3 Reviewing the total record, the ALJ’s omission of analysis of Ms. Hoeniges’ 4 opinion, while improper, was also harmless. As detailed previously, the ALJ cited 5 numerous facts to support her decision to reject the opinions of Drs. Lindgren and 6 Warninger that the Claimant was unable to perform any work. Ms. Hoeniges’ 7 opinion actually does qualify the Claimant to complete some work, at the 8 “sedentary” level. Tr. 341-42. The reasons provided to reject the opinions of the 9 treating physicians would be adequate to reject the opinion of Ms. Hoeniges, and 10 11 12 the failure to address her opinion was harmless error. B. The ALJ properly conducted a Step-Four analysis. Plaintiff asserts that the ALJ failed to properly conduct the step four analysis 13 by: (1) erring in the finding of Plaintiff’s residual functional capacity (“RFC”) by 14 failing to include all of Plaintiff’s limitations; (2) failing to identify the specific 15 demands of Plaintiff’s past relevant work and then failing to properly compare the 16 specific demands with her specific functional limits; and (3) failing to follow the 17 recommendations of the State’s experts, even though the ALJ gave great weight to 18 their opinions. ECF No. 12 at 17-18. 19 1. The ALJ properly considered all of the Claimant’s limitations in her RFC 20 finding. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 The ALJ found that the Claimant was capable of light work, as defined in 20 2 CFR §§ 404.1567(b) and 416.967(b) with some limitations. Tr. 19. The ALJ 3 considered all of the limitations mentioned in the Claimant’s initial application, 4 including gastroparesis, fibromyalgia, PTSD, anxiety, and depression, as well as 5 injuries stemming from a motor vehicle accident that occurred after the initial 6 application. Tr. 20-21. The ALJ’s determination of the RFC based on these 7 complaints was limited by the Claimant’s credibility with regard to the intensity, 8 persistence, and limiting effects, particularly with regard to pain. Id. 9 A claimant’s credibility regarding subjective pain or symptoms is analyzed 10 through a two-step process. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 11 2008). First, the claimant must produce objective medical evidence of an 12 underlying impairment or impairments that could reasonably be expected to 13 produce some degree of the symptoms alleged. Id. Second, if the claimant meets 14 this threshold, and there is no affirmative evidence suggesting malingering, “the 15 ALJ can reject the claimant’s testimony about the severity of her symptoms only 16 by offering specific, clear and convincing reasons for doing so.” Id. 17 In weighing a claimant's credibility, the ALJ may consider many factors, 18 including, “(1) ordinary techniques of credibility evaluation, such as the claimant's 19 reputation for lying, prior inconsistent statements concerning the symptoms, and 20 other testimony by the claimant that appears less than candid; (2) unexplained or ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 inadequately explained failure to seek treatment or to follow a prescribed course of 2 treatment; and (3) the claimant's daily activities.” Smolen v. Chater, 80 F.3d 1273, 3 1284 (9th Cir.1996). 4 The first step was satisfied because the ALJ determined that Plaintiff had 5 medically determinable impairments that could be reasonably expected to cause 6 the alleged symptoms. Tr. 20. However, at the second step, the ALJ found the 7 Claimant to not be entirely credible. 8 The ALJ pointed to multiple, specific instances of inconsistency between the 9 record and Plaintiff’s testimony. In the hearing, Plaintiff stated that she could only 10 lift a gallon of milk with two hands, Tr. 52, yet she also acknowledged exercising 11 at a gym. Tr. 51. The ALJ noted the list of regular activities the Claimant is able to 12 do, which were corroborated by her medical records. Supra p. 9. Of particular 13 concern regarding credibility, the ALJ pointed to the inconsistency between 14 Plaintiff’s testimony at the hearing that she must lay down for up to six hours per 15 day and her statements to Dr. Lindgren that she could function during the day with 16 her medication, despite occasional fatigue. Tr. 21. 17 Plaintiff also asserts error in the ALJ’s RFC computation with reference to 18 her status-post shoulder arthroscopy. The ALJ found in her Step Two analysis the 19 injury was not likely to cause functional limitations beyond twelve months. Tr. 17. 20 Further, the record demonstrates Plaintiff had repeated visits to Dr. Lindgren ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 following the procedure that document numerous complaints, but the shoulder is 2 not mentioned. Tr. 470-78.2 It is reasonable, based on the record, to conclude the 3 shoulder procedure does not alter the RFC finding made by the ALJ, regardless of 4 whether she specifically cited it in her Step Four analysis. 5 2. The ALJ did not err in determining Plaintiff could perform past relevant 6 work. 7 In reaching her decision, the ALJ relied on Dictionary of Occupational Titles 8 (“DOT”) classifications and determined that the Claimant is able to perform past 9 relevant work as it is actually and generally performed. Tr. 23. Claimant argues 10 that the DOT was insufficient to determine whether she could perform the mental 11 demands of the past work and that “the DOT did not contain all of the mental 12 requirements of the past relevant work.” ECF No. 19 at 8. However, Claimant 13 offers no examples of mental limitations or demands that would preclude her past 14 relevant work that were not addressed by the DOT. 15 The record indicates that Vocational Expert, Trevor Duncan, provided 16 testimony that the Claimant could perform her past relevant work as a social 17 18 19 20 2 Plaintiff does not assign error regarding her status-post shoulder arthroscopy to the ALJ’s finding at Step Three. As a result, any error in the ALJ’s finding at Step Two is harmless, provided she considered functional limitations arising from that impairment when determining Plaintiff’s RFC. See 20 CFR §§ 404.1545(a)(2) & 416.945(a)(2) (requiring an ALJ to consider all medically determinable impairments when determining a claimant’s residual functional capacity); see also Lewis v. Astrue, 498 F.3d 909, 910 (9th Cir. 2007) (holding that failure to consider an impairment at step two is harmless error where the ALJ includes limitations arising from that impairment in his or her determination of the claimant’s residual functional capacity). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 services worker, a social worker, an eligibility worker, an adult education teacher, 2 and a banquet server, as defined by the DOT. TR. 69-71. Mr. Duncan formulated 3 this opinion based on the hypothetical presented by the ALJ after calculating the 4 Claimant’s RFC. Id. 5 Further, Mr. Duncan’s testimony refutes Plaintiff’s argument that the ALJ 6 disregarded the opinion of the State’s non-examining experts on Plaintiff’s ability 7 to work, despite giving strong weight to the same opinions to determine her RFC. 8 ECF No. 12 at 18. The hypothetical posed to Mr. Duncan was created from the 9 assessments provided by the State’s experts. Tr. 69-71; 79-100. In her decision, the 10 ALJ noted that she accepted Mr. Duncan’s testimony as credible. Tr. 23. 11 The Court recognizes that the ALJ provides little explanation as to why she 12 found Plaintiff could perform relevant past work, but the record demonstrates that 13 there was sufficient evidence for such a finding. Further, if there was an error, the 14 ALJ correctly proceeded in the alternative in step five, and the error would be 15 harmless. 16 C. The ALJ did not fail to meet her burden to identify specific jobs, 17 available in significant numbers, which Plaintiff could perform in light 18 of her specific functional limitations. 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19 1 The burden in step five shifts to the Commissioner to identify the specific 2 jobs that exist in substantial numbers in the national economy that the claimant can 3 perform despite the claimant’s specific functional limitations. Johnson v. Shalala, 4 60 F.3d 1428, 1432 (9th Cir. 1995). When a hypothetical posed to a vocational 5 expert includes all the limitations that the ALJ finds credible and is supported by 6 substantial evidence in the record, the ALJ’s reliance on the testimony of the 7 vocational expert is proper. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 8 2005). 9 Plaintiff argues that the Defendant failed to meet its burden because the 10 vocational testimony the ALJ relied on was in response to an incomplete 11 hypothetical. ECF No. 12 at 19. However, as discussed above, the ALJ properly 12 considered the credibility of the Claimant and exclusion of her testimony about her 13 limitations was not in error. Likewise, the ALJ properly rejected the opinions of 14 Drs. Lindgren and Warninger that were inconsistent with the record and need not 15 include those limitations in the hypothetical. The ALJ is only required to provide a 16 RFC finding that is consistent with the medical record. Turner v. Comm’r of Soc. 17 Sec. Admin., 613 F.3d 1217, 1222-23 (9th Cir. 2010). The hypothetical posed was 18 modeled off the limitations provided by the State’s experts that the ALJ found to 19 be credible and consistent with the record. Tr. 22-23; 69-71; 79-100. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 20 1 With regard to the ALJ’s step five analysis, the Court finds that the ALJ 2 made proper findings free from legal error and supported by substantial evidence 3 in the record. As previously stated, to the extent that her step four findings were 4 not specific enough to Plaintiff’s past relevant work, any error is harmless because 5 of the ALJ’s proper step five analysis. 6 7 VIII. Conclusion Based on the foregoing, the Court finds the Commissioner’s decision is free 8 of legal error and supported by substantial evidence. Therefore, Defendant’s 9 Motion for Summary Judgment is granted. 10 Accordingly, IT IS HEREBY ORDERED: 11 1. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is DENIED. 12 2. Defendant’s Motion for Summary Judgment, ECF No. 16, is 13 14 15 16 17 18 GRANTED. 3. The District Court Executive is directed to enter judgment in favor of Defendant and against Plaintiff. IT IS SO ORDERED. The District Court Executive is directed to enter this Order, forward copies to counsel and close the file. DATED this 23rd day of November, 2015. 19 20 s/Robert H. Whaley ROBERT H. WHALEY Senior United States District Judge ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 21
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