Carrillo v. Commissioner of Social Security, No. 4:2017cv05204 - Document 20 (E.D. Wash. 2018)
Court Description: ORDER Granting 18 Defendant's Motion for Summary Judgment and Denying 14 Plaintiff's Motion for Summary Judgment. Signed by Senior Judge Edward F. Shea. (PL, Case Administrator)
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Carrillo v. Commissioner of Social Security Doc. 20 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Sep 27, 2018 4 SEAN F. MCAVOY, CLERK UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 7 RIKKI C.,1 No. Plaintiff, 8 ORDER GRANTING DEFENDANT'S SUMMARY JUDGMENT MOTION AND DENYING PLAINTIFF'S SUMMARY JUDGMENT MOTION v. 9 10 4:17-CV-05204-EFS NANCY A. BERRYHILL, Commissioner of Social Security, 11 Defendant. 12 13 Before the Court, without oral argument, are cross-summary- 14 judgment motions. ECF Nos. 14 & 18. Plaintiff Rikki C. appeals the 15 Administrative 16 Plaintiff contends the ALJ: (1) improperly rejected the opinion of 17 Plaintiff’s 18 testimony; and (3) conducted an improper Step Five analysis. ECF No. 14 19 at 9. The Commissioner of Social Security (“Commissioner”) asks the 20 Court 21 administrative record and the parties’ briefing. For the reasons set 22 forth below, the Court affirms the ALJ’s decision and therefore denies 23 Plaintiff’s motion and grants the Commissioner’s motion. to Law medical affirm Judge’s (ALJ) providers; the ALJ’s (2) denial of benefits. improperly decision. The ECF rejected Court has No. 1. Plaintiff’s reviewed the 24 25 26 1 To protect the privacy of social-security plaintiffs, the Court refers to them by first name and last initial. See proposed draft of LCivR 5.2(c). When quoting the Administrative Record in this order, the Court will substitute “Plaintiff” for any other identifier that was used. ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 1 Dockets.Justia.com I. 1 Standard of Review 2 On review, the Court must uphold the ALJ’s determination that the 3 claimant is not disabled if the ALJ applied the proper legal standards 4 and there is substantial evidence in the record as a whole to support 5 the decision.2 “Substantial evidence means more than a mere scintilla, 6 but less than a preponderance. It means such relevant evidence as a 7 reasonable mind might accept as adequate to support a conclusion.”3 The 8 Court will also uphold “such inferences and conclusions as the [ALJ] 9 may reasonably draw from the evidence.”4 10 In reviewing a denial of benefits, the Court considers the record 11 as a whole, not just the evidence supporting the ALJ’s decision.5 That 12 said, the Court 13 Commissioner. 14 interpretation, a reviewing court must uphold the ALJ’s decision.6 15 Further, the Court “may not reverse an ALJ’s decision on account of an 16 error 17 inconsequential to the [ALJ’s] ultimate nondisability determination.”8 that If is the The 19 ALJ evidence harmless.”7 II. 18 20 may not substitute its uses An supports error judgment for that of more is than harmless one “where the rational it is Five-Step Disability Determination a five-step sequential evaluation determine whether an adult claimant is disabled.9 process to The burden of proof 21 22 2 23 3 24 4 5 25 6 7 26 8 9 Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 1983) (citing 42 U.S.C. § 405(g)); Brawner v. Sec’y of Health & Human Servs., 839 F.2d 432, 433 (9th Cir. 1987). Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988) (citations and internal quotation marks omitted). Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989). Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Id. at 1115 (quotation and citation omitted). See 20 C.F.R. §§ 404.1520, 416.920. ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 2 1 shifts during this process. The claimant has the initial burden of 2 establishing entitlement to disability benefits under steps one through 3 four. 4 that the claimant is not entitled to benefits.11 10 At step five, however, the burden shifts to the ALJ to show 5 Step one assesses whether the claimant is currently enga s not account for Plaintiff’s improvement in her symptoms 21 when taking medication; and (3) at the time his opinion was rendered, 22 Plaintiff was able to “provide full-time care” for her infant daughter. 23 AR 28. Plaintiff argues that the ALJ was required to give Dr. Zhang 24 25 26 20 21 42 U.S.C. § 1383(c)(3); 20 C.F.R. §§ 416.1481, 422.210. See 20 C.F.R. § 404.1567(a). ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 7 1 great deference because he was her treating physician, and because his 2 opinion was well-supported by the record. ECF No. 14 at 11. a. Legal Standard 3 4 5 6 7 8 9 10 11 12 Treating physicians’ opinions are generally assigned a greater weight than non-treating physicians.22 However, if the opinions of the treating and non-treating physicians contradict, the opinion of the treating physician may be rejected only if the ALJ articulates “specific, legitimate reasons for doing so that are based on substantial evidence in the record.”23 Although a non-treating physician’s opinion on its own may not constitute “substantial evidence,” an ALJ may reject a treating physician’s opinion if it conflicts with “the overwhelming weight of the other evidence of record.”24 13 b. Analysis 14 1) Dr. Zhang’s treatment notes are inconsistent with his report 15 and recommendation for Plaintiff’s workload. 16 Here, Dr. Zhang was Plaintiff’s treating physician for several 17 years, and therefore would ordinarily be afforded great deference.25 18 However, Dr. Zhang’s doctors, Dr. Mascal opinion contradicted those of two examining 19 and Dr. Martinez. Dr. Martinez acknowledged 20 Plaintiff’s right arm weakness and numbness, and opined that Plaintiff 21 was capable of performing “light work,” meaning she was able to lift up 22 to 20 pounds per day, frequently lift up to 10 pounds, and walk, sit 23 24 22 25 23 26 24 25 Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)(internal quotations omitted). Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1996). Andrews, 53 F.3d at 1041. ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 8 1 stand, push, and pull. AR 425. Dr. Mascal also opined that she could do 2 “light work” of the same variety. AR 431-32. The limitations outlined 3 in Dr. Martinez and Dr. Mascal’s reports therefore directly contradict 4 Dr. Zhang’s report. Further, as the Commissioner points out, the only 5 opinion in the record as restrictive as Dr. Zhang’s is the 2010 report 6 from his own physician’s assistant, Tauni Urdahl. ECF No. 18 at 10. Ms. 7 Urdahl issued a contradictory report that Plaintiff was capable of 8 sedentary work, but also “unable to lift at least 2 pounds or unable to 9 stand or walk.” AR 455-66. Dr. Zhang’s opinion therefore contradicted 10 the opinions of the other examining doctors, and must be weighed against 11 the “substantial evidence” standard.26 12 The Court finds the ALJ’s reasons to afford Dr. Zhang’s report 13 little weight to be specific, legitimate, and supported by substantial 14 evidence in the record.27 In deciding to afford Dr. Zhang’s report little 15 weight, the ALJ noted that the report is inconsistent with Dr. Zhang’s 16 own “corresponding treatment notes.” AR 28. Plaintiff asserts that the 17 ALJ erred because Dr. Zhang’s opinion was “well supported,” particularly 18 because her MRIs between 2009 and 2013 showed increased numbers of 19 lesions, 20 ECF No. 14 at 11-12. The Commissioner asserts that the MRIs that reflect 21 progression in her lesions are accounted for by the contradicting 22 examining doctors, and the new lesions did not reflect a marked increase 23 in her symptoms. ECF No. 18 at 11-12. and she consistently reported “problems 24 25 26 26 27 See Jamerson, 112 F.3d at 1066. Id. ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 9 with fatigue.” 1 The Court finds that the record supports the ALJ’s finding that 2 Dr. Zhang’s medical report is inconsistent with his treatment notes. 3 Dr. Zhang has been Plaintiff’s treating physician since 2009. AR 356- 4 66. On July 30, 2015, Dr. Zhang filled out a medical report for 5 Plaintiff’s disability 6 limitations to 7 difficulty” due to her MS. AR 391. However, Dr. Zhang’s treating notes 8 from July 30, 2015—the same day he issued his medical report for 9 Plaintiff’s claim Plaintiff’s disability and attributed “weakness, claim—states fatigue, that the aforementioned pain, although [and] Plaintiff gait was 10 experiencing fatigue, she denied “difficulty with speech, vision loss, 11 . . . weakness, [and] spasticity.” AR 400. She also did not have visual 12 disturbances, back pain, neck pain, or a gait problem. AR 401. Plaintiff 13 also reported that she was “overall stable,” and Dr. Zhang noted that 14 she did not have any new lesions. AR 400. 15 Furthermore, although Plaintiff’s MRIs reflect an increase in 16 lesions between 2009 and 2013, AR 370, Plaintiff acknowledges that 17 Dr. Zhang noted that the “lesion burden” was “stable” after reviewing 18 her MRI from April, 2015. ECF No. 14 at 12; AR 400. And although an MRI 19 from 2016 showed a new lesion, Dr. Zhang’s treating notes from that date 20 reflect that she was experiencing “minimal residual symptoms” from a 21 recent exacerbation, and denied issues with her speech, weakness, vision 22 loss, hearing loss, spasticity, dysphasia, and other symptoms. AR 494. 23 She had no back or neck pain and, although Dr. Zhang noted her gait was 24 “wide based,” and “unsteady,” he considered her “negative” for “gait 25 problems.” Id. The record therefore does not support Dr. Zhang’s report 26 ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 10 1 that her medical lesions would cause symptoms leading to her disability. 2 See AR 391. 3 2. Plaintiff’s symptoms are generally controlled by medication. 4 The ALJ specifically and legitimately reasoned that she should 5 afford Dr. Zhang’s report little weight because his report does not 6 account for Plaintiff’s apparent improvement in her symptoms when she 7 was taking her medication as prescribed. Plaintiff correctly points out 8 that “[o]ccasional symptom-free periods—and even the sporadic ability 9 to work—are not inconsistent with disability.”28 However, impairments 10 that can be controlled effectively with medication are not disabling.29 11 There is substantial evidence in the record to support the ALJ’s finding 12 that Plaintiff’s symptoms that may otherwise prevent her from working 13 are controlled by medication. 14 Plaintiff argues that she did not have adequate symptom control 15 while taking medication because she continued to have fatigue and gait 16 difficulty. ECF No. 14 at 13. The Commissioner argues that exam notes 17 show that Plaintiff’s symptoms have consistently stabilized when she 18 has taken Avonex-one of her prescribed medications. ECF No. 18 at 12. 19 In November, 2013, Dr. Zhang’s PA-C Tauni Urdahl noted that Plaintiff 20 had been taking Avonex since the end of August and had “done well.” AR 21 375. Plaintiff emphasizes that she continued to have fluctuations of 22 her symptoms while she was taking Avonex, ECF No. 14 at 13, but Ms. 23 Urdahl notes that Plaintiff’s cognitive ability was only mildly impaired 24 and Plaintiff reported no new neurological symptoms or changes. AR 375. 25 28 26 29 Lester, 81 F.3d at 833. Warre ex rel. E.T. IV v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 11 1 Ms. Urdahl also reported that Plaintiff had responded well to “multiple 2 [past] exacerbations” with the medication Solumedrol IV. AR 375. 3 Although Plaintiff’s symptoms appeared to worsen in early 2016 4 after she restarted Avonex, she reported on March 8, 2016 that after 5 she was treated with Solumedrol IV for three days she experienced “good 6 benefit” and “her symptoms improved in about two weeks.” AR 492. Apart 7 from this benefit, Plaintiff contends that her continued fatigue and 8 “wide, unsteady gait” reflect a lack of symptom control after this 9 episode. ECF No. 14 at 13-14. However, she did not report any difficulty 10 with pain or weakness, and Dr. Zhang noted she had no abnormal movement 11 in her legs. AR 494. And, as the Commissioner points out, ECF No. 18 at 12 17, the 13 Plaintiff’s symptoms, but it effectively controlled the symptoms that 14 Dr. Zhang described as limiting her working ability when she took it as 15 prescribed. See AR 28. ALJ did not conclude that the medication stopped all of 16 3. Plaintiff was able to provide full-time care for her daughter. 17 Finally, the ALJ afforded Dr. Zhang’s opinion little weight because 18 Plaintiff is able to care for her daughter almost full-time without 19 noted difficulty. AR 28. The credibility of a treating physician’s 20 restrictions may be evaluated against the Plaintiff’s activity at home.30 21 At the time of the hearing, Plaintiff stated that she was the primary 22 caregiver for her daughter while her husband worked during the day. 23 AR 47. She stated that she was able to take care of her daughter when 24 25 26 30 See Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (“[T]he restrictions appear to be inconsistent with the level of activity that [the Plaintiff] engaged in by maintaining a household and raising two young children, with no significant assistance from her ex husband.”). ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 12 1 she was an infant, and as a toddler the Plaintiff only required help 2 from friends to care for her daughter two to three times a month. AR 47. 3 Furthermore, she stated she was mostly able to keep up with housework 4 and her own personal hygiene, with occasional help from her husband. 5 AR 48. The substantial evidence in the record that Plaintiff provided 6 pertaining to her ability to care for her child and take care of herself 7 is therefore inconsistent with Dr. Zhang’s limitations. Because 8 9 10 evidence in the record exists that is inconsistent with Dr. Zhang’s opinion, the ALJ did not err by assigning his report little weight. B. The ALJ did not improperly discredit Plaintiff’s testimony. 11 Plaintiff asserts that the ALJ erred by discrediting her symptom 12 13 substantial testimony. a. Standard of Review 14 15 The ALJ engages in a two-step analysis to determine whether a 16 claimant’s testimony regarding subjective pain or symptoms is credible. 17 “First, the ALJ must determine whether there is objective medical 18 evidence of an underlying impairment which could reasonably be expected 19 to produce the pain or other symptoms alleged.”31 In the present case, 20 because 21 “reasonably be expected to cause the alleged symptoms,” she has met step 22 one. AR 25. the ALJ determined Plaintiff’s medical impairment could Second, “[i]f the claimant meets the first test and there is no 23 24 evidence 25 testimony of malingering, about the the severity ALJ of can the only reject symptoms if the [the claimant’s ALJ] gives 26 31 Molina, 674 F.3d at 1112 (internal quotations and citations omitted). ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 13 1 ‘specific, clear and convincing reasons’ for the rejection.”32 An ALJ 2 must 3 conclude that the ALJ did not arbitrarily discredit [the] claimant’s 4 testimony.”33 General findings are insufficient.34 Courts may not second- 5 guess ALJ findings that are supported by substantial evidence.35 make In 6 sufficiently making an among specific adverse credibility determination, an to ALJ may reputation for 9 her (4) the claimant’s (3) work claimant’s court truthfulness; (2) inconsistencies in the claimant’s testimony or between conduct; the the 8 her (1) permit consider, and things, “to 7 testimony other findings the claimant’s 10 activities; record; and 11 severity, and effect of the claimant’s condition.36 (5) daily the living nature, b. Analysis 12 1) Gaps in treatment and non-compliance with medication reflect a 13 lack of intensity of symptoms. 14 15 The ALJ specifically discredited Plaintiff’s testimony partially 16 due to the long periods of time she goes between treatments and her 17 noncompliance with her treatment. AR 25. “[U]nexplained, or inadequately 18 explained, failure to seek treatment or follow a prescribed course of 19 treatment” 20 symptoms.37 However, a Plaintiff’s “failure to receive medical treatment 21 during the period that [she] had no medical insurance cannot support an may be relied on to discredit a plaintiff’s alleged 22 23 32 24 33 25 34 35 26 36 37 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)). Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008)(citation omitted). Lester, 81 F.3d at 834. Id. Thomas v. Barnhart, 278 F.3d 947, 958–59 (9th Cir. 2002). See Fair v. Bowen, 885 F.2d 597, 603-04 (9th Cir. 1989). ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 14 1 adverse credibility finding.”38 Accordingly, “[d]isability benefits may 2 not be denied because of the claimant’s failure to obtain treatment 3 [s]he cannot obtain for lack of funds.”39 4 Plaintiff has explained the gaps in her treatment between 2009 and 5 2013 as being due to her methamphetamine abuse and lack of insurance. 6 See ECF No. 14 at 16-17. However, there is substantial evidence in the 7 record 8 insurance, she was able to access free treatment through medical access 9 programs. to The 10 support ALJ the noted ALJ’s that findings Plaintiff had that, not despite had any her lack of “significant” 11 treatment for her MS between 2009 and 2013. AR 25-26. In November, 2009, 12 Plaintiff’s 13 recommended Tysabri treatment for her MS. AR 354. However, her treating 14 physician “arranged [for] her to contact Biogen [a treatment provider] 15 for [an] assistance program” for Tysabri. AR 356. She met with her 16 physician on several occasions between during 2009 and 2010 after this 17 recommendation, see, e.g., AR 360, 361, 362, 367. On each occasion, her 18 physician encouraged her to enroll in the Tysabri assistance program. 19 Id. Despite her access to insurance, and the medical assistance program 20 when she could not afford the treatment, she never sought out the Tysabri 21 program or treatment and lost contact with her physician until 2013. 22 AR 368. Furthermore, 23 24 medical records although note that Plaintiff she argues could that she afford had gaps the in insurance between 2012 and 2016, as stated previously, the medical 25 26 not 38 39 Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007). Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995). ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 15 1 records show she could access Tysabri through the assistance program 2 even if she could not afford treatment. See AR 356. She also testified 3 at her hearing that she had been receiving free medical assistance, as 4 the drug company for Avonex had been sponsoring her and sending her free 5 treatment. AR 58. She reported she had recently switched to Tysabri, 6 but she testified that the treatment was very expensive and she did not 7 know whether Tysabri had an assistance program. AR 58. This directly 8 contradicts the records that reflect numerous attempts to encourage 9 Plaintiff to enter the Tysabri assistance program, and supports the 10 ALJ’s finding that she had access to medical assistance. See AR 360, 11 361, 365, 367. Because Plaintiff did not seek out treatment even with 12 access to the medical assistance plans, the ALJ properly discounted 13 Plaintiff’s 14 inconsistent with her claims.40 testimony regarding the severity of her symptoms as 2) Plaintiff’s living activities are inconsistent with the degree 15 of impairment she alleges. 16 17 As the Court has noted previously, the ALJ found that Plaintiff’s 18 ability to care for her daughter with only minimal help from family and 19 friends was inconsistent with the degree of limitations Plaintiff was 20 claiming. AR 27. The Ninth Circuit has “repeatedly warned that ALJs must 21 be 22 inconsistent with testimony about pain, because impairments that would 23 unquestionably preclude work and all the pressures of a workplace 24 environment will often be consistent with doing more than merely resting especially cautious in concluding that daily 25 26 40 See Fair, 885 F.2d at 603-04. ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 16 activities are 1 in bed all day.”41 To that end, “many home activities are not easily 2 transferable to what may be the more grueling environment of the 3 workplace, where it might be impossible to periodically rest of take 4 medication.”42 Accordingly, a claimant’s daily activities should not 5 have a negative impact on credibility unless those activities contradict 6 the claimant’s other testimony or are transferable to a work setting.43 7 Plaintiff argues that her “bad days” where she is required to lay 8 down and cannot brush her hair or shower due to fatigue would preclude 9 her from performing full-time work. ECF No. 14 at 18-19. However, 10 Plaintiff also testified that on a day-to-day basis she cares full-time 11 for her daughter, AR 47, is capable of “get[ting] up and doing things 12 in spurts,” AR 56, will go outside and play with her daughter if she is 13 “feeling up to it,” and “usually” visits with friends. AR 52. While she 14 testified that she sits for most of the day, AR 56, her symptoms do not 15 prevent her from typing on a computer. AR 54. There is therefore 16 substantial evidence that Plaintiff’s fatigue would not preclude her 17 from performing sedentary work. 18 Furthermore, Plaintiff testified that she required assistance from 19 her friends or husband on her symptomatic “bad days,” which occur only 20 two to three times per month. AR 55. And, as this Court analyzed 21 previously, Plaintiff’s symptoms are well-controlled when she is taking 22 her medication as prescribed. See, e.g., AR 375; 492. Plaintiff’s 23 activities 24 persistence of the limitations alleged. The ALJ therefore properly are relevant because they contradict 25 41 26 42 43 Garrison, 759 F.3d at 1016. Fair, 885 F.2d at 603. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 17 the severity and 1 considered Plaintiff’s daily activities in discrediting her symptom 2 testimony. C. The ALJ did not fail to meet her step five burden. 3 4 At step five, the Commissioner has the burden to “identify specific 5 jobs existing in substantial numbers in the national economy that [the] 6 claimant 7 administrative hearing, an ALJ may solicit vocational expert (VE) 8 testimony as to the availability of jobs in the national economy.45 The 9 ALJ’s decision regarding the number of alternative occupations must be 10 supported by substantial evidence.46 A VE’s testimony may constitute 11 substantial evidence of the number of jobs that exist in the national 12 economy.47 can perform despite her identified limitations.”44 At an 13 Plaintiff alleges that the ALJ failed to meet her step five burden 14 because she denied Plaintiff’s claim partially on the basis of the 15 vocational expert’s testimony. ECF No. 14 at 19-20. Plaintiff argues 16 that 17 hypothetical because it did not take into account all limitations 18 presented by Dr. Zhang. Id. However, as the Court previously addressed, 19 this argument merely restates Plaintiff’s earlier allegation of error 20 in assigning weight to Dr. Zhang’s testimony, which is not supported by the testimony was provided in response to an incomplete 21 22 23 24 44 25 45 46 26 47 Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). Tackett v. Apfel, 180 F.3d 1094, 1100-01 (9th Cir. 1999). See Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012); see also Farias v. Colvin, 519 F. Appx 439, 440 (9th Cir. 2013). Bayliss v. Barnhart, 427 F.3d 1211, 1217-18 (9th Cir. 2005). ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 18 1 the record. Accordingly, the ALJ’s hypothetical properly accounted for 2 the limitations supported by the record.48 3 Plaintiff further alleges that when additional limitations were 4 presented to the VE at the hearing, the VE testified that Plaintiff’s 5 limitations would preclude employment. ECF No. 14 at 20; AR 67-68. 6 However, as the Commissioner noted, the hypothetical containing the 7 additional limitations was given to the VE by Plaintiff’s counsel. 8 ECF No. 18 at 15; AR 67-68. The hypothetical that the ALJ posed to the 9 VE “contained all of the limitations that the ALJ found credible and 10 [was] supported by substantial evidence in the record.”49 The ALJ’s 11 reliance on the VE’s answer to the hypothetical she posed was therefore 12 proper.50 V. 13 In 14 summary, the Court Conclusion finds the record contains substantial 15 evidence from which the ALJ properly concluded, when applying the 16 correct legal standards, that Plaintiff does not qualify for benefits. 17 Accordingly, IT IS HEREBY ORDERED: 18 1. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is DENIED. 19 2. 20 The Commissioner’s Motion for Summary Judgment, ECF No. 18, is GRANTED. 21 22 3. JUDGMENT is to be entered in the Commissioner’s favor. 23 4. The case shall be CLOSED. 24 48 25 26 49 50 See Magallanes v. Bowen, 881 F.2d 747, 756–57 (9th Cir. 1989) (holding it is proper for the ALJ to limit a hypothetical to those restrictions supported by substantial evidence in the record). Bayliss, 427 F.3d at 1217; AR 63. Bayliss, 427 F.3d at 1217. ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 19 1 2 3 IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and provide copies to all counsel. DATED this 27th day of September 2018. 4 5 s/Edward F. Shea EDWARD F. SHEA Senior United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 20
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