Van Scoik v. Commissioner of Social Security, No. 2:2017cv00436 - Document 15 (E.D. Wash. 2019)
Court Description: ORDER GRANTING DEFENDANTS 14 MOTION FOR SUMMARY JUDGMENT; Order denying Plaintiff's 13 Motion for Summary Judgment. File CLOSED. Signed by Magistrate Judge John T. Rodgers. (AN, Courtroom Deputy)
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Van Scoik v. Commissioner of Social Security Doc. 15 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF WASHINGTON FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON Jan 30, 2019 9 10 11 SEAN F. MCAVOY, CLERK RICHARD V., No. 2:17-CV-0436-JTR Plaintiff, 12 13 14 15 16 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT v. COMMISSIONER OF SOCIAL SECURITY, Defendant. 17 18 BEFORE THE COURT are cross-motions for summary judgment. ECF 19 No. 13, 14. Attorney Gary R. Penar represents Richard V. (Plaintiff); Special 20 Assistant United States Attorney David J. Burdett represents the Commissioner of 21 Social Security (Defendant). The parties have consented to proceed before a 22 magistrate judge. ECF No. 6. After reviewing the administrative record and briefs 23 filed by the parties, the Court GRANTS Defendant’s Motion for Summary 24 Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 25 26 JURISDICTION Plaintiff filed applications for disability insurance benefits and supplemental 27 security income, alleging disability since July 3, 2014, due to a back injury, right 28 shoulder impairment, and acid reflux. Tr. 214, 219, 260. Plaintiff’s applications ORDER GRANTING DEFENDANT’S MOTION . . . - 1 Dockets.Justia.com 1 were denied initially and upon reconsideration. Administrative Law Judge (ALJ) 2 Jesse K. Shumway held a hearing on March 21, 2017, Tr. 36-76, and issued an 3 unfavorable decision on May 3, 2017, Tr. 15-26. The Appeals Council denied 4 review on October 27, 2017. Tr. 1-6. The ALJ’s May 2017 decision thus became 5 the final decision of the Commissioner, which is appealable to the district court 6 pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review on 7 December 26, 2017. ECF No. 1, 4. STATEMENT OF FACTS 8 The facts of the case are set forth in the administrative hearing transcript, the 9 10 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 11 here. 12 Plaintiff was born on June 5, 1964, and was 50 years old on the alleged onset 13 date, July 3, 2014. Tr. 214, 219. He finished high school and completed one year 14 of college. Tr. 261, 368. 15 Plaintiff’s disability report indicates he stopped working on July 3, 2014 16 because of his conditions. Tr. 260. Plaintiff testified at the March 2017 17 administrative hearing that he is no longer able to perform the heavy lifting, 18 movements, and walking/standing of his prior work. Tr. 52. He indicated lower 19 back pain prevented him from bending and twisting, Tr. 53-55, he was not able to 20 sit in a hard chair for a long period of time, and he could only walk or stand for 21 about 25 minutes before his back would spasm, Tr. 55. Plaintiff stated “[t]he less 22 I’m on my feet, the less it hurts.” Tr. 57. He believed he could only be on his feet 23 for an hour to an hour and a half during an eight hour period. Tr. 56. 24 Plaintiff testified he spends a typical day sitting, watching TV, playing video 25 games, and reading, Tr. 56-57, and he spends the majority of the day with his legs 26 elevated while sitting. Tr. 57. He indicated his hobbies of shooting pool, fishing, 27 and going on hikes were limited by his impairments. Tr. 59-60. However, 28 Plaintiff also stated his pain medication (Hydrocodone) “helps really well.” Tr. 58. ORDER GRANTING DEFENDANT’S MOTION . . . - 2 1 He testified the medication allowed him to perform activities with minimal or little 2 pain. Tr. 58. 3 4 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 5 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 6 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 7 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 8 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 9 only if it is not supported by substantial evidence or if it is based on legal error. 10 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 11 defined as being more than a mere scintilla, but less than a preponderance. Id. at 12 1098. Put another way, substantial evidence is such relevant evidence as a 13 reasonable mind might accept as adequate to support a conclusion. Richardson v. 14 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 15 rational interpretation, the Court may not substitute its judgment for that of the 16 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 17 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 18 administrative findings, or if conflicting evidence supports a finding of either 19 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 20 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 21 supported by substantial evidence will be set aside if the proper legal standards 22 were not applied in weighing the evidence and making the decision. Brawner v. 23 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 24 25 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 26 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 27 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through 28 four, the burden of proof rests upon the claimant to establish a prima facie case of ORDER GRANTING DEFENDANT’S MOTION . . . - 3 1 entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is 2 met once a claimant establishes that a physical or mental impairment prevents the 3 claimant from engaging in past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 4 416.920(a)(4). If a claimant cannot perform past relevant work, the ALJ proceeds 5 to step five, and the burden shifts to the Commissioner to show that (1) the 6 claimant can make an adjustment to other work; and (2) specific jobs which 7 claimant can perform exist in the national economy. Batson v. Commissioner of 8 Social Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If a claimant cannot make 9 an adjustment to other work in the national economy, a finding of “disabled” is 10 made. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). ADMINISTRATIVE DECISION 11 12 13 14 15 16 On May 3, 2017, the ALJ issued a decision finding Plaintiff was not disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since the alleged onset date, July 3, 2014. Tr. 17. At step two, the ALJ determined Plaintiff had the following severe 17 impairments: obesity, lumbar degenerative disc disease, and bilateral carpal tunnel 18 syndrome. Tr. 17. 19 At step three, the ALJ found Plaintiff did not have an impairment or 20 combination of impairments that meets or medically equals the severity of one of 21 the listed impairments. Tr. 19. 22 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and 23 determined he could perform light exertion level work but with the following 24 limitations: he can never climb ladders, ropes, or scaffolds; he can frequently 25 climb ramps and stairs and balance; he can only occasionally stoop, kneel, crouch, 26 and crawl; he can perform frequent handling; he can have no concentrated 27 exposure to vibration; and he can have no exposure to hazards such as unprotected 28 heights and moving mechanical parts. Tr. 19. ORDER GRANTING DEFENDANT’S MOTION . . . - 4 1 2 At step four, the ALJ found Plaintiff was not able to perform his past relevant work. Tr. 24. 3 At step five, the ALJ determined that based on the testimony of the 4 vocational expert, and considering Plaintiff’s age, education, work experience, and 5 RFC, Plaintiff could perform other jobs present in significant numbers in the 6 national economy, including the jobs of marker, meter reader, parking lot 7 attendant, and storage clerk. Tr. 24-25. The ALJ additionally determined that if 8 Plaintiff was further restricted to needing a sit-stand option at will, frequent 9 fingering in addition to frequent handling, and lifting and carrying no more than 10 10 pounds, he would still be able to perform other jobs present in significant numbers 11 in the national economy, including the jobs of grain picker, courtesy booth cashier, 12 and parking lot attendant. Tr. 25. The ALJ thus concluded Plaintiff was not under 13 a disability within the meaning of the Social Security Act at any time from July 3, 14 2014, the alleged onset date, through the date of the ALJ’s decision, May 3, 2017. 15 Tr. 25-26. ISSUES 16 The question presented is whether substantial evidence supports the ALJ’s 17 18 decision denying benefits and, if so, whether that decision is based on proper legal 19 standards. Plaintiff’s brief, however, fails to specifically delineate the issues he 20 requests the Court to address. ECF No. 13. After examining Plaintiff’s motion, the Court construes Plaintiff’s argument 21 22 as the ALJ erred in this case by (1) improperly weighing the medical opinions of 23 treating physician Vivian Moise, M.D., examining physician Kevin Weeks, D.O., 24 state agency reviewing physician Norman Staley, M.D., and medical expert H.C. 25 Alexander, III, M.D.; and (2) finding Plaintiff capable of performing other work 26 existing in significant numbers in the national economy at step five of the 27 sequential evaluation process. ECF No. 13 at 7-19. 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 5 DISCUSSION1 1 2 A. Medical Source Opinions 3 Plaintiff’s brief asserts the ALJ erred by failing to properly assess multiple 4 medical source opinions of record. ECF No. 13 at 7-19. Plaintiff specifically 5 argues the ALJ erred by giving great weight to the opinions of treating physician 6 Moise, but ignoring limitations she identified which are contrary to the ALJ’s RFC 7 finding, ECF No. 13 at 9, by failing to incorporate any limitations in reaching or 8 pushing/pulling with the upper extremities in the RFC finding despite the shoulder 9 impairment and limitations identified by Drs. Staley and Weeks, ECF No. 13 at 17- 10 18, and by assigning great weight to the unsupported opinions of medical expert, 11 Dr. Alexander, ECF No. 13 at 18-19. 12 In this case, the ALJ found that although Plaintiff had severe physical 13 impairments (obesity, lumbar degenerative disc disease, and bilateral carpal tunnel 14 syndrome), the medical evidence did not support the degree of limitation alleged 15 by Plaintiff. Instead, the ALJ determined Plaintiff retained the residual functional 16 capacity to perform a restricted range of light exertion level work. Tr. 19. The 17 Court finds the ALJ’s interpretation of the medical evidence of record is supported 18 by substantial evidence. See infra. 19 /// 20 /// 21 22 1 In Lucia v. S.E.C., 138 S.Ct. 2044 (2018), the Supreme Court recently held 23 that ALJs of the Securities and Exchange Commission are “Officers of the United 24 States” and thus subject to the Appointments Clause. To the extent Lucia applies 25 to Social Security ALJs, the parties have forfeited the issue by failing to raise it in 26 their briefing. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 27 n.2 (9th Cir. 2008) (the Court will not consider matters on appeal that were not 28 specifically addressed in an appellant’s opening brief). ORDER GRANTING DEFENDANT’S MOTION . . . - 6 1 1. 2 Plaintiff first contends the ALJ erred by according “great weight” to the 3 opinions of Dr. Moise, but not including all of the limitations she assessed in a 4 March 24, 2017 Physical Medical Source Statement, Tr. 449-452, in the ALJ’s 5 ultimate RFC determination. ECF No. 13 at 9. 6 Vivian Moise, M.D. Dr. Moise’s treatment notes from 2015 to 2017, Tr. 416-448, indicate the 7 opinion that Plaintiff’s low back was at maximum medical improvement, with long 8 term restriction to sedentary to light work and limited bending, lifting and carrying. 9 Tr. 416. It was noted MRIs revealed stable findings at L5-S1 of bilateral moderate 10 foramenal stenosis, right L4-5 disc protrusion possibly affecting the right L4 root, 11 and a stable left sided protrusion at L3-4, none requiring surgical intervention. Tr. 12 416, 419, 423, 427, 429, 433, 435, 439 (MRI “does not show severe enough nerve 13 impingement to refer for surgery”). Dr. Moise opined that Plaintiff could not 14 return to his heavy labor type jobs, but he would be able to perform light to 15 sedentary work with minimal bending, lifting and carrying. Tr. 421. 16 On March 24, 2017, Dr. Moise completed a Physical Medical Source 17 Statement form. Tr. 449-452. Dr. Moise stated that Plaintiff could sit 30 minutes 18 at one time, stand 30 minutes at one time, and sit about four hours and stand/walk 19 about two hours in an eight-hour working day. Tr. 450. She indicated Plaintiff 20 would need a job that permitted him to shift positions at will from sitting, standing, 21 or walking, but that Plaintiff would not need to take unscheduled breaks during a 22 working day. Tr. 450. Dr. Moise opined that Plaintiff could occasionally lift and 23 carry up to 10 pounds and rarely lift and carry up to 20 pounds; could rarely twist, 24 stoop, crouch/squat, or climb stairs; could never climb ladders; and would have no 25 significant limitations with reaching, handling, or fingering. Tr. 451. Dr. Moise 26 found that Plaintiff would be off task 0% of the workday because of his symptoms, 27 would be capable of low stress work, and would likely be absent only one day a 28 month as a result of his impairments or treatment. Tr. 452. ORDER GRANTING DEFENDANT’S MOTION . . . - 7 1 The ALJ gave great weight to Dr. Moise’s opinions. Tr. 23. The ALJ 2 indicated the limitations assessed by Dr. Moise were consistent with the record, Tr. 3 23, and accounted for Dr. Moise’s limitations by restricting Plaintiff to the 4 performance of light work with certain postural restrictions, Tr. 19. 5 Plaintiff argues the ALJ erred by omitting from the ALJ’s RFC 6 determination, without comment, Dr. Moise’s Physical Medical Source Statement 7 form limitations of standing/walking up to two hours, the requirement of a sit/stand 8 option, and the impact of mental impairments on Plaintiff’s functioning. ECF No. 9 13 at 13. However, the ALJ is not required to adopt in full the opinion of any 10 particular medical source. See Magallanes v. Bowen, 881 F.2d 747, 753 (9th Cir. 11 1989) (“It is not necessary to agree with everything an expert witness says in order 12 to hold that his testimony contains ‘substantial evidence.’” (quoting Russell v. 13 Bowen, 856 F.2d 81, 83 (9th Cir. 1988))). An ALJ may properly rely upon only 14 selected portions of a medical opinion while ignoring other parts, but such reliance 15 must be consistent with the medical record as a whole. Edlund v. Massanari, 253 16 F.3d 1152, 1159 (9th Cir. 2001). 17 With respect to the impact of Plaintiff’s mental impairments, Plaintiff did 18 not allege disabling mental limitations on his disability report, Tr. 260, Plaintiff 19 testified at the administrative hearing that mental health issues have never affected 20 him, Tr. 52, and Plaintiff has otherwise failed to assert that mental impairments 21 caused any specific disabling functional limitations. See Matthews v. Shalala, 10 22 F.3d 678, 680 (9th Cir. 1993) (finding “the mere existence of an impairment is 23 insufficient proof of a disability”). The ALJ correctly determined that Plaintiff’s 24 mental impairments did not cause more than minimal limitations in Plaintiff’s 25 ability to perform basic mental work activities, Tr. 18, and did not err by failing to 26 include mental health restrictions in the RFC determination. 27 28 With regard to Plaintiff’s physical capabilities, the Physical Medical Source Statement form of Dr. Moise indicated Plaintiff could occasionally lift and carry up ORDER GRANTING DEFENDANT’S MOTION . . . - 8 1 to 10 pounds and rarely lift and carry up to 20 pounds, could stand/walk only about 2 two hours in an eight-hour working day, and would need a job that permitted him 3 to shift positions at will from sitting, standing, or walking. Tr. 450-451. Dr. 4 Moise’s treatment notes from 2015 to 2017 consistently limited Plaintiff to the 5 performance of light to sedentary work with minimal bending, lifting and carrying, 6 Tr. 416-448, and only stated that Plaintiff could not return to his heavy labor type 7 jobs, Tr. 421. It does not appear Dr. Moise’s opinions conflict with the ALJ’s RFC 8 determination. 9 In any event, at the administrative hearing, the ALJ directed the vocational 10 expert to explain how the forgoing particular physical restrictions would affect the 11 occupations identified by the vocational expert. Tr. 71-75. The vocational expert 12 specifically indicated that if the individual could lift/carry no more than 10 pounds, 13 would need the option to sit and stand at will, was limited to frequent fingering in 14 addition to frequent handling, and had to stay off his feet for six hours a day, the 15 individual would still be able to perform the jobs of parking lot attendant, grain 16 picker, and courtesy booth cashier. Tr. 71, 74-75. Any error for not expressly 17 including these specific restrictions in the ultimate RFC determination is therefore 18 harmless. See Johnson v. Shalala, 60 F.3d 1428, 1436 n.9 (9th Cir. 1995) (an error 19 is harmless when the correction of that error would not alter the result). An ALJ’s 20 decision will not be reversed for errors that are harmless. Burch v. Barnhart, 400 21 F.3d 676, 679 (9th Cir. 2005) (citing Curry v. Sullivan, 925 F.2d 1127, 1131 (9th 22 Cir. 1991). 23 2. Kevin Weeks, D.O. 24 Plaintiff next contends the ALJ erred by failing to provide specific and 25 legitimate reasons for rejecting the July 2015 examination findings of Dr. Weeks. 26 ECF No. 13 at 16. 27 28 Dr. Weeks examined Plaintiff on July 25, 2015. Tr. 366-372. It was noted that Plaintiff could use his hands for buttons and zippers, shoe laces, cleaning ORDER GRANTING DEFENDANT’S MOTION . . . - 9 1 teeth, caring for hair, turning doorknobs, typing and signing his name. Tr. 368. He 2 was also able to pick up a coin without difficulty. Tr. 370. The range of motion in 3 his shoulders were within normal limits, he had 5/5 strength in the bilateral upper 4 and lower extremities, and his hand grip was strong bilaterally. Tr. 370. The range 5 of motion in Plaintiff’s back was noted as somewhat restricted. Tr. 370. 6 Dr. Weeks opined that Plaintiff could walk/stand about four hours and sit 7 about six hours in an eight-hour workday and could lift and carry 10 pounds both 8 occasionally and frequently. Tr. 371. Dr. Weeks further found postural and 9 environmental limitations and “some restriction in reaching overhead and reaching 10 forward but handling, fingering and feeling no obvious limitations.” Tr. 371. 11 The ALJ accorded “partial” weight to Dr. Week’s report, finding it was 12 inconsistent with imaging of the shoulder and a lack of treatment for that issue and 13 inconsistent with the overall normal findings throughout the record. Tr. 22. 14 Plaintiff contends the ALJ erred by relying on outdated x-rays (2012 15 shoulder imaging study) to reject the shoulder limitations identified by Dr. Weeks. 16 ECF No. 13 at 16. The undersigned does not agree. 17 Although of limited relevance, evidence from outside of the relevant time 18 period can be deemed useful as background information. See Fair v. Bowen, 885 19 F.2d 597, 600 (9th Cir. 1989). Plaintiff’s rotator cuff injury occurred in 2007. Tr. 20 367. As noted by the ALJ, by April 2012 there was no significant findings on right 21 shoulder x-rays, Tr. 322, and, from that date, there is very little clinical evidence 22 related to Plaintiff’s shoulder issue. Tr. 18. 23 In July 2015, Plaintiff reported to Dr. Weeks he could lift no more than 20 24 pounds, Tr. 367, on examination in September 2015 he had normal movement of 25 all extremities and normal motor strength and tone, Tr. 399, and although two 26 months later Plaintiff reported pain in his left shoulder, there was no crepitation, 27 Tr. 397, and Plaintiff did not continue to report this issue to his care providers. On 28 March 24, 2017, Dr. Moise opined that Plaintiff could occasionally lift and carry ORDER GRANTING DEFENDANT’S MOTION . . . - 10 1 up to 10 pounds, rarely lift and carry up to 20 pounds, and would have no 2 significant limitations with reaching, handling or fingering. Tr. 451. 3 Here, the ALJ properly evaluated the evidence of record pertaining to 4 Plaintiff’s shoulder. The 2012 imaging report was relevant to demonstrate there 5 was no abnormality with regard to Plaintiff’s shoulder following the injury of that 6 joint in 2007, and the overall record does not reflect limitations as a result of 7 Plaintiff’s 2007 shoulder injury. Accordingly, the ALJ did not err by accordingly 8 only “partial weight” to the examination report of Dr. Weeks. 9 10 3. Norman Staley, M.D. It appears Plaintiff next asserts the ALJ erred by assigning “great weight” to 11 the opinion of reviewing physician Staley, Tr. 23, but failing to incorporate any 12 limitations in reaching or pushing/pulling with Plaintiff’s upper extremities in the 13 RFC determination. ECF No. 13 at 17-18. 14 Dr. Staley reviewed the record on November 16, 2015, and opined Plaintiff 15 was capable of light work with limited reaching and pushing/pulling abilities as 16 well as postural and environmental limitations. Tr. 108-113. He specifically found 17 Plaintiff was limited in pushing and/or pulling with his right upper extremity and 18 limited to occasional overhead lifting with his right upper extremity. Tr. 109-110. 19 The ALJ gave great weight to Dr. Staley’s opinion, except with respect to the 20 restrictions attributed to Plaintiff’s shoulder pathology. Tr. 23. The ALJ indicated 21 that the light lifting limitation accommodated any limitations from Plaintiff’s 22 shoulder. Id. 23 As stated above with respect to Dr. Weeks, April 2012 x-rays of Plaintiff’s 24 right shoulder revealed no significant findings, Tr. 322, and, following that date, 25 there is very little clinical evidence related to Plaintiff’s shoulder issue. See supra. 26 The weight of the evidence of record does not reflect limitations as a result of 27 Plaintiff’s 2007 shoulder injury. Consequently, the ALJ did not err by discounting 28 Dr. Staley’s assessed reaching and pushing/pulling restrictions. ORDER GRANTING DEFENDANT’S MOTION . . . - 11 1 4. H.C. Alexander, III, M.D. 2 Plaintiff also contends the ALJ erred by according great weight to the 3 opinion of medical expert Alexander. ECF No. 13 at 18-19. Plaintiff asserts Dr. 4 Alexander’s opinion is unsupported by substantial evidence. ECF No. 13 at 18. 5 Dr. Alexander testified at the administrative hearing held on March 21, 6 2017, Tr. 41-49, and identified Plaintiff’s issues as degenerative disc disease of the 7 lower lumbar spine (no greater than mild canal stenosis at any level), rotator cuff 8 tear, and carpal tunnel syndrome, Tr. 41. Dr. Alexander indicated imaging did not 9 show any abnormality with respect to Plaintiff’s shoulder (x-ray was negative), Tr. 10 42, there was no significant evidence of nerve root compression with regard to 11 Plaintiff’s lower back, Tr. 43, and nerve conduction studies showed only mild 12 carpal tunnel syndrome, Tr. 43-44. He opined Plaintiff was capable of lifting 20 13 pounds occasionally and 10 pounds frequently and could stand/walk for six hours, 14 with normal breaks, in an eight-hour workday with no limitation on sitting. Tr. 43. 15 He additionally assessed postural, environmental and manipulative limitations 16 (related to the carpal tunnel syndrome). Tr. 43-44. 17 The ALJ gave “great weight” to the medical expert’s testimony because he 18 reviewed the entire longitudinal medical record, gave a reasonable explanation of 19 his opinion, and had program knowledge. Tr. 24. 20 There is no requirement that the ALJ provide rationale for according weight 21 to a medical professional, rather this Court reviews whether the ALJ has failed to 22 provide legally sufficient reasons for rejecting evidence. Garrison v. Colvin, 759 23 F.3d 995, 1020 (9th Cir. 2014). Dr. Alexander indicated he reviewed all exhibits 24 of record, Tr. 41, and properly cited the medical evidence that supported the basis 25 for his conclusions regarding Plaintiff’s medical condition, Tr. 41-49. 26 Plaintiff’s argues it appears Dr. Alexander did not read the MRI reports 27 because Dr. Alexander’s finding of “no evidence of nerve compression” was 28 inconsistent with the medical evidence. ECF No. 13 at 18. First, Dr. Alexander ORDER GRANTING DEFENDANT’S MOTION . . . - 12 1 stated Dr. Moise did not feel there was “significant evidence for nerve root 2 compression,” Tr. 43, not that there was “no evidence” of nerve compression. This 3 testimony is corroborated by Dr. Moise’s most recent records, Tr. 416-448, 4 supported by updated imaging, which shows stable findings at L5-S1 of bilateral 5 moderate foramenal stenosis, right L4-5 disc protrusion possibly affecting the right 6 L4 root, and a stable left sided protrusion at L3-4, none requiring surgery. Tr. 416, 7 419, 423, 427, 429, 433, 435, 439 (MRI “does not show severe enough nerve 8 impingement to refer for surgery”). In fact, Dr. Moise’s most recent record, the 9 March 24, 2017 Physical Medical Source Statement, makes no mention of 10 evidence of nerve compression. Tr. 449-452. Plaintiff also asserts Dr. Alexander erred by failing to take into consideration 11 12 Plaintiff’s level of pain. ECF No. 13 at 18-19. Dr. Alexander did not examine or 13 treat Plaintiff. He merely reviewed the objective medical evidence and expressed 14 his opinion of Plaintiff’s functioning based on the record. It was proper for the ALJ to consider Dr. Alexander’s opinion, based on his 15 16 review of the record as a whole, and assign the opinion great weight. The Court 17 finds Plaintiff’s argument with respect to Dr. Alexander is without merit. 18 It is the responsibility of the ALJ to determine credibility, resolve conflicts 19 in medical testimony and resolve ambiguities, Saelee v. Chater, 94 F.3d 520, 522 20 (9th Cir. 1996), and this Court may not substitute its own judgment for that of the 21 ALJ, 42 U.S.C. § 405(g). Where, as here, the ALJ has made specific findings 22 justifying a decision, and those findings are supported by substantial evidence, this 23 Court’s role is not to second-guess that decision. Fair, 885 F.2d at 604. Based on the foregoing, the Court finds the ALJ did not err by failing to find 24 25 greater limitations than as conveyed in the RFC determination. The limitations 26 assessed by the ALJ are supported by the weight of the record evidence and free of 27 error. 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 13 1 B. Step Five 2 Plaintiff’s brief lastly contends the ALJ erred at step five of the sequential 3 evaluation process by finding Plaintiff capable of performing other work existing 4 in significant numbers in the national economy. ECF No. 13 at 19. Plaintiff 5 asserts the RFC determination, and thus the hypothetical presented to the 6 vocational expert, erroneously omitted Plaintiff’s limited “abilities to sit, 7 stand/walk, lift and reach, as well as mental limitations.” ECF No. 13 at 19. 8 9 As determined above, the ALJ did not err in the weight he accorded to the above noted medical professionals. As such, the Court finds the ALJ’s 10 determination with respect to Plaintiff’s functioning capacity is supported by 11 substantial evidence. Presented with a hypothetical that mirrored the ALJ’s 12 supported RFC determination, the vocational expert testified that the individual 13 would be able to perform a significant number of jobs existing in the national 14 economy, including the jobs of marker, meter reader, parking lot attendant and 15 storage clerk.2 Tr. 69-70. Since the vocational expert’s testimony was based on a 16 proper RFC determination by the ALJ, the Court finds the ALJ did not err at step 17 five of the sequential evaluation process. See Rollins v. Massanari, 261 F.3d 853, 18 19 2 20 21 22 23 24 25 26 27 28 In a second hypothetical, the vocational expert testified that if the individual was further restricted to lifting/carrying no more than 10 pounds, needing an option to sit and stand at will, frequent fingering in addition to frequent handling, and staying off his feet for six hours a day, the individual would still be capable of performing the jobs of parking lot attendant, grain picker, and courtesy booth cashier. Tr. 70-71, 74-75. The ALJ made an alternative step five finding that Plaintiff could also perform these jobs, which existed in significant numbers in the national economy, if he were deemed limited to a greater extent as noted in the second hypothetical. Tr. 25. ORDER GRANTING DEFENDANT’S MOTION . . . - 14 1 857 (9th Cir. 2001) (the ALJ did not err by omitting limitations in a hypothetical to 2 the vocational expert that a claimant claimed, but failed to prove). 3 CONCLUSION 4 Having reviewed the record and the ALJ’s findings, the Court finds the 5 ALJ’s decision is supported by substantial evidence and free of legal error. 6 Accordingly, IT IS ORDERED: 7 8 9 10 1. Defendant’s Motion for Summary Judgment, ECF No. 14, is GRANTED. 2. Plaintiff’s Motion for Summary Judgment, ECF No. 13, is DENIED. The District Court Executive is directed to file this Order and provide a copy 11 to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 12 and the file shall be CLOSED. 13 DATED January 30, 2019. 14 15 16 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 15
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