De La Luz Liera Ruiz v. Colvin, No. 4:2015cv05075 - Document 23 (E.D. Wash. 2016)

Court Description: ORDER Granting 21 Defendant's Motion for Summary Judgment; denying 14 Plaintiff's Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (PL, Case Administrator)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 10 MARIA DE LA LUZ LIERA RUIZ, Plaintiff, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 12 13 14 15 No. 4:15-CV-05075-JTR v. CAROLYN W. COLVIN, Commissioner of Social Security, Defendant. 16 17 BEFORE THE COURT are cross-Motions for Summary Judgment. ECF 18 No. 14, 21. Attorney David L. Lybbert represents Maria De La Luz Liera Ruiz 19 (Plaintiff); Special Assistant United States Attorney Tina R. Saladino represents 20 the Commissioner of Social Security (Defendant). The parties have consented to 21 proceed before a magistrate judge. ECF No. 6. After reviewing the administrative 22 record and briefs filed by the parties, the Court GRANTS Defendant’s Motion for 23 Summary Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 24 JURISDICTION 25 Plaintiff filed an application for Supplemental Security Income (SSI) on 26 March 6, 2012, alleging disability since August 8, 2008, due to depression, 27 anxiety, arthritis, post-traumatic stress disorder (PTSD), diabetes, and back pain. 28 Tr. 198-206, 231. The application was denied initially and upon reconsideration. ORDER GRANTING DEFENDANT’S MOTION . . . - 1 1 Tr. 114-117, 121-128. Plaintiff requested a hearing on December 14, 2012. Tr. 2 129-131. Plaintiff then filed an application for Disability Insurance Benefits 3 (DIB) on July 15, 2013, also alleging disability since August 8, 2008. Tr. 217-223. 4 Administrative Law Judge (ALJ) James W. Sherry held a hearing on November 5 21, 2013, at which Plaintiff, represented by counsel, and vocational expert, Daniel 6 R. McKinney, testified. Tr. 48-89. At the hearing, Plaintiff amended her alleged 7 date of onset to January 1, 2012. Tr. 55-57. The ALJ issued an unfavorable 8 decision on December 13, 2013, denying both the SSI and DIB applications. Tr. 9 25-41. The Appeals Council denied review on June 1, 2015. Tr. 1-9. The ALJ’s 10 December 13, 2013, decision became the final decision of the Commissioner, 11 which is appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff 12 filed this action for judicial review on July 28, 2015. ECF No. 1, 4. 13 STATEMENT OF FACTS 14 The facts of the case are set forth in the administrative hearing transcript, the 15 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 16 here. 17 Plaintiff was 38 years old at the amended date of onset. Tr. 198. The last 18 grade Plaintiff completed was the sixth grade in Mexico in 1985. Tr. 232. 19 Plaintiff’s past work included corn processor/sorter, housekeeper, meat cutter, farm 20 laborer, and warehouse sorter. Id. Plaintiff reported she stopped working on 21 August 8, 2008, because she “had to [quit] because of my condition and also 22 because my son he also has a disability.” Tr. 231. 23 24 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 25 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 26 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 27 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 28 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is ORDER GRANTING DEFENDANT’S MOTION . . . - 2 1 not supported by substantial evidence or if it is based on legal error. Tackett v. 2 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 3 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 4 another way, substantial evidence is such relevant evidence as a reasonable mind 5 might accept as adequate to support a conclusion. Richardson v. Perales, 402 6 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 7 interpretation, the court may not substitute its judgment for that of the ALJ. 8 Tackett, 180 F.3d at 1097. Nevertheless, a decision supported by substantial 9 evidence will be set aside if the proper legal standards were not applied in 10 weighing the evidence and making the decision. Brawner v. Secretary of Health 11 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence 12 supports the administrative findings, or if conflicting evidence supports a finding 13 of either disability or non-disability, the ALJ’s determination is conclusive. 14 Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). 15 16 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 17 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 18 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one 19 through four, the burden of proof rests upon the claimant to establish a prima facie 20 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This 21 burden is met once a claimant establishes that physical or mental impairments 22 prevent her from engaging in her previous occupations. 20 C.F.R. §§ 23 404.1520(a)(4), 416.920(a)(4). If a claimant cannot do her past relevant work, the 24 ALJ proceeds to step five, and the burden shifts to the Commissioner to show that 25 (1) the claimant can make an adjustment to other work, and (2) specific jobs exist 26 in the national economy which the claimant can perform. Batson v. Comm’r of 27 Soc. Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If the claimant cannot make 28 an adjustment to other work in the national economy, a finding of “disabled” is ORDER GRANTING DEFENDANT’S MOTION . . . - 3 1 made. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 2 3 4 5 6 7 ADMINISTRATIVE DECISION On December 13, 2013, 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 January 1, 2012, the amended date of onset. Tr. 27. At step two, the ALJ determined Plaintiff had the following severe 8 impairments: diabetes, asthma, varicose veins, multiple pains/arthralgia/body 9 aches secondary to depression, gastrosophageal reflux disorder (GERD), mood 10 disorder, major depressive disorder, and anxiety disorder. Tr. 27-28. 11 At step three, the ALJ found Plaintiff did not have an impairment or 12 combination of impairments that met or medically equaled the severity of one of 13 the listed impairments. Tr. 28-29. 14 At step four, the ALJ assessed Plaintiff’s residual function capacity (RFC) 15 and determined she could perform a range of light work with the following 16 limitations: 17 18 19 20 21 22 23 24 25 26 27 28 The claimant could lift no more than 20 pounds at a time and can frequently lift or carry 10 pounds. The claimant can stand or walk for six hours in an eight-hour workday. The claimant can sit for six hours in an eight-hour workday. She cannot climb ladders, ropes, or scaffolds but can occasionally climb ramps or stairs. She can occasionally balance, stoop, crouch, kneel, and crawl. She should avoid concentrated exposure to poorly ventilated areas and irritants such as fumes, odors, dust, chemicals, and gases. She can perform simple, routine and repetitive tasks, specifically 1 to 3 step tasks for two-hour segments with normal breaks. She can have occasional and simple changes in the work setting. She needs more time to learn new procedures and processes. She learns best by demonstration and oral instruction. She can have occasional, superficial interaction the general public. She can have superficial interaction with coworkers and supervisors. ORDER GRANTING DEFENDANT’S MOTION . . . - 4 1 Tr. 29. The ALJ identified Plaintiff’s past relevant work as agriculture produce 2 sorter and found that Plaintiff was able to perform her past relevant work as 3 generally performed. Tr. 39-40. 4 In the alternative to a step four determination denying benefits, the ALJ 5 made a step five determination that, considering Plaintiff’s age, education, work 6 experience and residual functional capacity, and based on the testimony of the 7 vocational expert, there were other jobs that exist in significant numbers in the 8 national economy Plaintiff could perform, including the jobs of small products 9 assembly II, garment sorter, and inspection packer. Tr. 40-41. The ALJ thus 10 concluded Plaintiff was not under a disability within the meaning of the Social 11 Security Act at any time from the amended date of onset, January 1, 2012, through 12 the date of the ALJ’s decision, December 13, 2013. Tr. 41. 13 ISSUES The question presented is whether substantial evidence supports the ALJ’s 14 15 decision denying benefits and, if so, whether that decision is based on proper legal 16 standards. Plaintiff contends the ALJ erred by (1) failing to accord proper weight 17 to the medical sources statements in the record; (2) failing to fully and fairly 18 develop the record; (3) failing to make an adequate step four determination; and (4) 19 failing to make an adequate step five determination. 20 21 22 DISCUSSION A. Medical Source Statements Plaintiff argues the ALJ failed to properly consider and weigh the medical 23 opinion expressed by Thomas Genthe, Ph.D., Charles Wolfe, M.D., and Javier 24 Huerta, PA. ECF No. 14 at 9-14. 25 In weighing medical source opinions, the ALJ should distinguish between 26 three different types of physicians: (1) treating physicians, who actually treat the 27 claimant; (2) examining physicians, who examine but do not treat the claimant; 28 and, (3) nonexamining physicians who neither treat nor examine the claimant. ORDER GRANTING DEFENDANT’S MOTION . . . - 5 1 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The ALJ should give more 2 weight to the opinion of a treating physician than to the opinion of an examining 3 physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). The ALJ should give 4 more weight to the opinion of an examining physician than to the opinion of a 5 nonexamining physician. Id. 6 When a treating physician’s opinion is not contradicted by another 7 physician, the ALJ may reject the opinion only for “clear and convincing” reasons. 8 Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). When a treating 9 physician’s opinion is contradicted by another physician, the ALJ is only required 10 to provide “specific and legitimate reasons” for rejecting the opinion of the first 11 physician. Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). Likewise, when 12 an examining physician’s opinion is not contradicted by another physician, the 13 ALJ may reject the opinion only for “clear and convincing” reasons. Lester, 81 14 F.2d at 830. When an examining physician’s opinion is contradicted by another 15 physician, the ALJ is only required to provide “specific and legitimate reasons” for 16 rejecting the opinion of the examining physician. Id. at 830-831. 17 The specific and legitimate standard can be met by the ALJ setting out a 18 detailed and thorough summary of the facts and conflicting clinical evidence, 19 stating his interpretation thereof, and making findings. Magallanes v. Bowen, 881 20 F.2d 747, 751 (9th Cir. 1989). The ALJ is required to do more than offer his 21 conclusions, he “must set forth his interpretations and explain why they, rather 22 than the doctors’, are correct.” Embrey v. Bowen, 849 F.2d 418, 421-422 (9th Cir. 23 1988). 24 1. Thomas Genthe, Ph.D. 25 Dr. Genthe evaluated Plaintiff on December 30, 2009. Tr. 382-387. He 26 diagnosed Plaintiff with a mood disorder due to a complete hysterectomy, stating 27 that Plaintiff “reported a mixed anxiety-depressive disorder, which may be 28 pathophysiologically associated with her hysterectomy, although some secondary ORDER GRANTING DEFENDANT’S MOTION . . . - 6 1 grief issues certainly play at least some role in her mood disturbance.” Tr. 385- 2 386. Dr. Genthe noted that Plaintiff’s medical regimen appeared to be managing 3 her symptoms at least moderately well. Tr. 386. Dr. Genthe opined that Plaintiff 4 had a fair ability to understand and remember detailed instructions, carry out 5 detailed instructions, maintain attention and concentration for extended periods, 6 work with or near others without being distracted by them, and respond 7 appropriately to criticism from supervisors. Id. The remainder of the abilities, Dr. 8 Genthe listed as good. The ALJ gave this opinion significant weight. Tr. 37. 9 Later, in July of 2012, Dr. Genthe reviewed and adopted an opinion by J. 10 Brooke Sjostrom, MS, LMHC. Tr. 466-474. Ms. Sjostrom diagnosed Plaintiff 11 with depressive disorder, anxiety disorder, and psychotic disorder. Tr. 473. Ms. 12 Sjostrom stated that Plaintiff appeared to exhibit intellectual deficits that also 13 complicate her clinical picture. Tr. 473. Ms. Sjostrom further stated that Plaintiff 14 “is unlikely to function adequately in a work setting until her psychological 15 symptoms have been managed more effectively.” Tr. 474. The ALJ gave Dr. 16 Genthe’s adoption of this opinion “little weight’ because (1) it was inconsistent 17 with Plaintiff’s daily activities, (2) it was inconsistent with the clinical 18 observations, (3) it was not supported by Dr. Genthe’s earlier opinion or the 19 opinion of other providers, and (4) it was based on Plaintiff’s self-reports. Tr. 39. 20 Plaintiff argues that the ALJ failed to provide a specific and legitimate reason to 21 reject the July 2012 opinion. ECF No. 14 at 13. 22 The ALJ’s first reason fails to meet the specific and legitimate standard. 23 The ALJ concluded that Plaintiff’s ability to complete her household chores, attend 24 church, and go grocery shopping was inconsistent with the conclusion that she was 25 “unlikely to function adequately in a work setting.” Tr. 38. The ALJ failed to state 26 how these limited activities Plaintiff performed were inconsistent with 27 psychological problems interfering with the ability to work. The Ninth Circuit has 28 expressed caution at finding activities of daily living inconsistent with the ability to ORDER GRANTING DEFENDANT’S MOTION . . . - 7 1 function in a work setting. Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014); 2 See Smolen v. Chater, 80 F.3d 1273,1287 n.7 (9th Cir. 1996) (“The Social Security 3 Act does not require that claimants be utterly incapacitated to be eligible for 4 benefits, and many home activities may not be easily transferable to a work 5 environment where it might be impossible to rest periodically or take medication.” 6 (citation omitted)); Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (“[M]any 7 home activities are not easily transferable to what may be the more grueling 8 environment of the workplace, where it might be impossible to periodically rest or 9 take medication.”). 10 The ALJ’s second reason for rejecting the July 2012 report, that it was 11 inconsistent with clinical observations, is a specific and legitimate reason. The 12 ALJ may reject a medical opinion that is “brief, conclusory, and inadequately 13 supported by clinical findings.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 14 2002). The ALJ determined that the report was inconsistent with clinical 15 observations such as Plaintiff’s ability to interact cooperatively with medical 16 personnel, being alert and oriented, and the ability to follow directions. Tr. 38. 17 The ALJ determined that being cooperative with medical personnel, being alert 18 and orientated, and being able to follow directions was inconsistent with the 19 statement Plaintiff “is unlikely to function adequately in a work setting until her 20 psychological symptoms have been managed more effectively.” 21 The ALJ’s third reason for rejecting the July 2012 report was that it was 22 inconsistent with Dr. Genthe’s prior opinion, as well as the opinions for Dr. Haney 23 and Dr. Mee. Dr. Genthe’s prior opinion was completed in December of 2009. Tr. 24 382-387. This was over two years prior to Plaintiff’s amended date last insured, 25 January 1, 2012. Likewise, Dr. Mee’s opinion was penned in January 2010. Tr. 26 402-404. Again this is two years prior to Plaintiff’s amended date of onset. See 27 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008) 28 (“Medical opinions that predate the alleged onset of disability are of limited ORDER GRANTING DEFENDANT’S MOTION . . . - 8 1 relevance.”). Not only do they predate the date of onset, limiting their relevance, 2 they were also so long before the July 2012 report, it is unknown if the differences 3 between the reports are true inconsistencies or just a worsening of Plaintiff’s 4 condition over time. Therefore the fact that the July 2012 report differs from these 5 prior opinions is not a sufficient reason to meet the specific and legitimate 6 standard. Unlike the opinions of Dr. Genthe and Dr. Mee, the opinion of Steven 7 Haney, M.D., was penned in November 14, 2012. Tr. 109-111. Dr. Haney opined 8 that Plaintiff was capable of one to three-step instructions and able to maintain 9 concentration, precipitation, and pace in two-hour blocks with normal breaks. Tr. 10 109-110. She may have episodic difficulty completing work week due to 11 depressive symptoms, but this was not a significant limitation. Tr. 110. She would 12 need initial support in adaptation areas, but this was not a significant limitation. Id. 13 Dr. Haney’s opinion is inconsistent with the July 2012 statement that Plaintiff “is 14 unlikely to function adequately in a work setting until her psychological symptoms 15 have been managed more effectively.” Therefore, this meets the specific and 16 legitimate standard. 17 The ALJ’s fourth reason for rejecting the July 2012 report, that it was based 18 on Plaintiff’s self-reports, is not a specific and legitimate reason. A doctor’s 19 opinion may be discounted if it relies on a claimant’s unreliable self-report. 20 Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005); Tommasetti v. Astrue, 21 533 F.3d 1035, 1041 (9th Cir. 2008). But the ALJ must provide the basis for his 22 conclusion that the opinion was based on a claimant’s self-reports. Ghanim v. 23 Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). Here, the ALJ failed to discuss his 24 basis for the conclusion that the opinion was based on Plaintiff’s self-reports. 25 Therefore, this reason fails to meet the specific and legitimate standard. 26 Here, the ALJ erred in his treatment of the July 2012 opinion adopted by Dr. 27 Genthe by giving several reasons that did not meet the specific and legitimate 28 standard. However, these errors were harmless, because the ALJ provided two ORDER GRANTING DEFENDANT’S MOTION . . . - 9 1 reasons that met the specific and legitimate standard. See Tommasetti, 533 F.3d at 2 1038 (an error is harmless when “it is clear from the record that the . . . error was 3 inconsequential to the ultimate nondisability determination”). 4 2. Charles Wolfe, M.D. 5 On December 23, 2009, Dr. Wolfe reviewed the medical records associated 6 with Plaintiff’s file and opined that Plaintiff could occasionally lift 50 pounds, 7 frequently lift 25 pounds, stand/walk about six hours in an eight-hour workday, sit 8 about six hours in an eight-hour workday, push/pull with the upper extremities 9 occasionally at a light level due to bilateral wrist condition with reduced grip and 10 range of motion, balance occasionally, and work with occasional fine manipulation 11 at the medium level. Tr. 375-378. He opined that Plaintiff should avoid 12 concentrated exposure to extreme cold, extreme heat, and hazards. Tr. 378. 13 The ALJ gave Dr. Wolfe’s opinion “some weight” because (1) it was 14 inconsistent with some of the clinical observations by Dr. Opara, (2) it was 15 inconsistent with Plaintiff’s activities, and (3) the manipulation limitation was not 16 supported by the opinion of Dr. Bernardez-Fu or Mr. Huerta. Tr. 35. 17 The ALJ’s first reason, that it was inconsistent with the clinical observations 18 by Dr. Opara, meets the specific and legitimate standard. The ALJ determined that 19 Dr. Opara’s observations that Plaintiff had no manipulative deficiencies and had 20 intact upper extremity strength was inconsistent with Dr. Wolfe’s findings. Tr. 35. 21 Dr. Opara found that “[t]here were no manipulative activity limitations” and that 22 Plaintiff’s upper body strength was 5/5 in his functional assessment. Tr. 372-373. 23 Therefore, the ALJ’s first reason for rejecting Dr. Wolfe’s opinion is sufficient. 24 The ALJ’s second reason, that the opinion was inconsistent with Plaintiff’s 25 activities, is not legally sufficient. Again, the Ninth Circuit has expressed caution 26 at finding activities of daily living inconsistent with the ability to function in a 27 work setting. Garrison, 759 F.3d at 1016. Here, the ALJ failed to explain how 28 Plaintiff’s ability to complete household chores, use the computer, care for her ORDER GRANTING DEFENDANT’S MOTION . . . - 10 1 children, and prepare meals was inconsistent with Dr. Wolfe’s opinion. Tr. 35. 2 However any error resulting from this second reason is harmless error because the 3 ALJ provided other legally sufficient reasons for rejecting Dr. Wolfe’s opinion. 4 See Tommasetti, 533 F.3d at 1038. 5 The ALJ’s third reason, that Dr. Wolfe’s manipulative limitations are not 6 supported by the opinion of Dr. Bernardez-Fu or physician assistant Mr. Huerta, 7 meets the specific and legitimate standard. Dr. Bernardez-Fu reviewed Plaintiff’s 8 file and opined that there were no manipulative limitations. Tr. 109. Mr. Huerta’s 9 opinion did not find any manipulative limitations; in fact, Mr. Huerta left the boxes 10 next to handling, pulling, pushing, and reaching unchecked. Tr. 412. Therefore, 11 Plaintiff’s third reason for rejecting Dr. Wolfe’s opinion is legally sufficient. The 12 ALJ did not error in his treatment of Dr. Wolfe’s opinion. 13 3. Javier Huerta, PA 14 On January 14, 2010, Mr. Huerta limited Plaintiff to light work and opined 15 that Plaintiff had restricted mobility with bending, climbing, crouching, and 16 kneeling. Tr. 412. The ALJ gave Mr. Huerta’s opinion “significant weight.” Tr. 17 35. Later on August 10, 2010, in the “subjective” section of a treatment report, 18 Mr. Huerta stated “[b]ecause of her medical conditions is disabled.” Tr. 550. 19 Plaintiff argues that the ALJ erred when he failed to discuss the August 10, 20 2010, statement by Mr. Huerta. Plaintiff asserts this statement was a medical 21 source opinion. ECF No. 14 at 14. However, it was made as part of the 22 “subjective” section of the report and is juxtaposed next to the statement that 23 Plaintiff “does not smoke, does not drink, does not use illegal drugs.” Tr. 550. 24 Considering the conclusory nature of the statement and its relative location in the 25 report, it may be reasonably regarded as background information provided by 26 Plaintiff, and not a residual functional capacity statement by the provider. See 27 Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (the ALJ is 28 not required to discuss evidence that “is neither significant nor probative”). ORDER GRANTING DEFENDANT’S MOTION . . . - 11 1 Therefore, the ALJ’s failure to discuss the August 10, 2010, statement is not an 2 error. 3 B. Fairly and Fully Develop the Record 4 Plaintiff argues that the ALJ failed to fairly and fully develop the record by 5 not sending Plaintiff for a consultative examination that included IQ testing. ECF 6 No. 14 at 14-15. 7 The ALJ has “a special duty to fully and fairly develop the record and to 8 assure that the claimant’s interests are considered.” Smolen, 80 F.3d at 1288. This 9 duty exists even when the claimant is represented by counsel. Brown v. Heckler, 10 713 F.2d 441, 443 (9th Cir. 1983). Despite this duty to develop the record, it 11 remains the claimant’s burden to prove that she is disabled. 42 U .S.C. § 12 423(d)(5)(A); 20 C.F.R. §§ 404.1512(a), 416.912(a). “An ALJ’s duty to develop 13 the record . . . is triggered only when there is ambiguous evidence or when the 14 record is inadequate to allow for proper evaluation of the evidence.” Mayes v. 15 Massanari, 276 F.3d 453, 459-460 (9th Cir. 2001). “One of the means available to 16 an ALJ to supplement an inadequate medical record is to order a consultative 17 examination.” Reed v. Massanari, 270 F.3d 838, 841 (9th Cir. 2001). 18 Of the psychological evaluations in the file, the August 8, 2008, April 29, 19 2009, June 10, 2009, and July 20, 2012, evaluations do not speak to a limited 20 intellect or impaired cognition. Tr. 312-318, 518. In his December 30, 2009, 21 evaluation, Dr. Genthe stated that “[c]onsistent with persons who have undergone a 22 complete hysterectomy, some cognitive decline could be considered. Although her 23 mental status is reflective of impaired cognition, it should be noted that [Plaintiff] 24 has only a 6th grade education, which she attained in Mexico.” Tr. 386. The July 25 6, 2012 report by Ms. Sjostrom included a rule out diagnosis of borderline 26 intellectual functioning. Tr. 473. This report was adopted by Dr. Genthe. Tr. 474. 27 On May 9, 2013, Plaintiff, through her attorney, requested that the ALJ order a 28 consultative examination with IQ testing. Tr. 302. ORDER GRANTING DEFENDANT’S MOTION . . . - 12 1 Plaintiff argues that the Dr. Genthe’s and Ms. Sjostrom’s reports indicating 2 she may have impaired cognition triggers the ALJ’s duty to develop the record by 3 ordering a consultative examination. ECF No. 14 at 14-15. While these two 4 reports support the need for additional testing, the other five evaluations in the 5 record do not. If the evidence is susceptible to more than one rational 6 interpretation, the court may not substitute its judgment for that of the ALJ. 7 Tackett, 180 F.3d at 1097. Therefore, the Court will not disturb the ALJ’s decision 8 not to grant Plaintiff’s request for a consultative examination. The ALJ did not 9 error when he made his determination without additional IQ testing. 10 11 C. Step Four Plaintiff argues the ALJ erred in his step four determination by (1) failing to 12 include all of Plaintiff’s limitations in the residual functional capacity 13 determination, (2) failing to identify the specific demands of Plaintiff’s past 14 relevant work, and (3) failing to properly compare the specific demands of 15 Plaintiff’s past relevant work with her functional limitations. ECF No. 14 at 16-17. 16 At Step Four, the claimant has the burden of showing that she can no longer 17 perform her past relevant work. Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. 18 2001); Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). “To determine 19 whether a claimant has the residual capacity to perform [her] past relevant work, 20 the [ALJ] must ascertain the demands of the claimant’s former work and then 21 compare the demands with [her] present capacity.” Villa v. Heckler, 797 F.2d 794, 22 797-798 (9th Cir. 1986); Marcia v. Sullivan, 900 F.2d 172, 177 n.6 (9th Cir. 1990). 23 Social Security Ruling 82-62 summarizes these requirements: 24 1. A finding of fact as to the individual’s [residual functional capacity]. 25 2. A finding of fact as to the physical and mental demands of the past 26 27 28 job/occupation. 3. A finding of fact that the individual’s [residual functional capacity] would permit a return to his or her past job or occupation. ORDER GRANTING DEFENDANT’S MOTION . . . - 13 1 First, Plaintiff alleges that the ALJ erred by not including limitations from 2 Dr. Genthe and Dr. Wolfe’s opinions in the residual functional capacity. ECF No. 3 14 at 16. However, as discussed above, the ALJ did not error in the weight given 4 to these opinions. Therefore, the ALJ did not error in his finding of fact as to 5 Plaintiff’s residual functional capacity determination. 6 Second, Plaintiff alleges that the ALJ failed to identify the specific demands 7 of Plaintiff’s past work as an agricultural produce sorter. ECF No. 14 at 17. In his 8 decision, the ALJ identified Plaintiff’s past work as an agricultural produce sorter, 9 referenced the Dictionary of Occupational Titles number 529.687-186, and stated 10 that the work was performed at the light exertional level and at SVP 2. Tr. 39. By 11 referencing the Dictionary of Occupational Titles number, the exertional level, and 12 the SVP level for the past work, the ALJ met the required finding of facts. 13 Third, Plaintiff alleges that the ALJ failed to make the necessary findings of 14 facts that Plaintiff’s residual functional capacity would permit her to return to her 15 past job because she failed to set forth the specific demands of Plaintiff’s past 16 work. ECF No. 14 at 17. As discussed above, the ALJ met the required finding of 17 facts as to the specific demands of Plaintiff’s past work. Therefore, the ALJ’s 18 conclusion that “[i]n comparing the claimant’s residual functional capacity with 19 the physical and mental demands of this work, the undersigned finds that the 20 claimant is able to perform it as generally performed,” is without error. Tr. 39-40. 21 The ALJ did not error in his step four determination. 22 D. 23 Step Five Plaintiff argues that the ALJ’s hypothetical question to the vocational expert 24 was inadequate because it failed to account for Plaintiff’s physical impairments, 25 resulting in an inadequate step five determination. ECF No. 17 at 18. An ALJ is 26 only required to present the vocational expert with those limitations the ALJ finds 27 to be credible and supported by the evidence. Osenbrock v. Apfel, 240 F.3d 1157, 28 1165-66 (9th Cir. 2001). As discussed above, the ALJ’s residual functional ORDER GRANTING DEFENDANT’S MOTION . . . - 14 1 capacity determination was not in error because the ALJ properly weighed the 2 opinions from Dr. Genthe and Dr. Wolfe. Therefore, the ALJ’s hypothetical 3 presented to the vocational expert, which matched the residual functional capacity 4 assessment, Tr. 81-83, is free of error. The ALJ did not error in his step five 5 determination. 6 CONCLUSION 7 Having reviewed the record and the ALJ’s findings, the Court finds the 8 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 9 Accordingly, 10 IT IS ORDERED: 11 1. 12 Defendant’s Motion for Summary Judgment, ECF No. 21, is GRANTED. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is DENIED. 13 2. 14 The District Court Executive is directed to file this Order and provide a copy 15 to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 16 and the file shall be CLOSED. 17 DATED June 2, 2016. 18 19 20 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 15

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