Wheat v. Commissioner of Social Security Administration ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Henry Wheat, No. CV-21-00469-PHX-JJT 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 At issue is the denial of Plaintiff Henry Wheat’s Application for Disability 16 Insurance Benefits by the Social Security Administration (“SSA”) under the Social 17 Security Act (“the Act”). Plaintiff filed a Complaint (Doc. 1) with this Court seeking 18 judicial review of that denial. The Court now addresses Plaintiff’s Opening Brief (Doc. 15, 19 “Pl. Br.”), Defendant Social Security Commissioner’s Answering Brief (Doc. 16, “Def. 20 Br.”), and Plaintiff’s Reply Brief (Doc. 19, “Reply”). The Court has reviewed the briefs 21 and the Administrative Record (Doc. 14, “R.”) and affirms the Administrative Law Judge’s 22 decision denying benefits (R. at 28–41) as upheld by the Appeals Council (R. at 10–12). 23 I. BACKGROUND 24 Plaintiff filed the instant application for Title II Social Security Disability Insurance 25 (“SSDI”) Benefits on December 26, 2018, for a period of disability beginning August 10, 26 2016. (R. at 186–88.) Plaintiff’s claims were denied initially on March 12, 2019, and upon 27 reconsideration on May 17, 2019. (R. at 28.) 28 1 On June 30, 2020, Plaintiff testified at a telephonic hearing before an Administrative 2 Law Judge (“ALJ”). (R. at 28.) Upon consideration of the medical records, opinions, and 3 testimony before her, the ALJ denied Plaintiff’s Application in a fourteen-page decision 4 dated August 17, 2020. (R. at 28–41.) The ALJ found that Plaintiff had not engaged in 5 substantial gainful activity since August 10, 2016. (R. at 30.) The ALJ further determined 6 that Plaintiff had the following severe impairments: hypertension, diabetes, obesity, heart 7 murmur, attention deficit hyperactivity disorder (ADHD), depression and anxiety. (R. at 8 30.) The ALJ determined that Plaintiff’s impairments do not meet or medically equal the 9 severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 10 (R. at 31.) The ALJ considered Plaintiff’s residual function capacity (“RFC”) and found 11 that although Plaintiff’s impairments could reasonably be expected to cause his alleged 12 symptoms, his “statements concerning the intensity, persistence and limiting effects of 13 these symptoms are not entirely consistent with the medical evidence and other evidence 14 in the record.” (R. at 34.) The ALJ found that Plaintiff had the RCF to perform light work 15 as defined in 20 C.F.R. § 404.1567(b), except he should “avoid work around hazards” and 16 “perfume [sic] simple, routine work involving simple work related decisions and simple 17 instructions not involving public contact with few changes in the work setting.” (R. at 33.) 18 On January 21, 2021, the Appeals Council denied Plaintiff’s request for a review of the 19 ALJ’s decision. (R. at 10–12.) Plaintiff filed this action on March 18, 2021. (Doc. 1.) 20 The Court has reviewed the medical evidence and finds it unnecessary to provide a 21 complete summary here. The Court will discuss the pertinent medical evidence in 22 addressing the issues raised by the parties. The issues presented for review are whether the 23 ALJ (1) failed to properly address the medical opinions; (2) improperly rejected Plaintiff’s 24 symptom testimony; (3) improperly rejected lay witness testimony; and (4) erred in relying 25 on vocational testimony given in response to an incomplete hypothetical question. 26 II. LEGAL STANDARD 27 In determining whether to reverse an ALJ’s decision, the district court reviews only 28 those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 1 517 n.13 (9th Cir. 2001). The Court may set aside the Commissioner’s disability 2 determination only if it is not supported by substantial evidence or is based on legal error. 3 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is more than a 4 scintilla, but less than a preponderance; it is relevant evidence that a reasonable person 5 might accept as adequate to support a conclusion considering the record as a whole. Id. To 6 determine whether substantial evidence supports a decision, the Court must consider the 7 record as a whole and may not affirm simply by isolating a “specific quantum of supporting 8 evidence.” Id. Generally, “[w]here the evidence is susceptible to more than one rational 9 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be 10 upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted). 11 The ALJ follows a five-step process to determine whether a claimant is disabled for 12 purposes of the Act. 20 C.F.R. § 404.1520(a). The claimant bears the burden of proof on 13 the first four steps, but the burden shifts to the Commissioner at step five. Tackett v. Apfel, 14 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether the 15 claimant is engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, 16 the claimant is not disabled, and the inquiry ends. Id. At step two, the ALJ determines 17 whether the claimant has a “severe” medically determinable physical or mental 18 impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If not, the claimant is not disabled, and the 19 inquiry ends. Id. At step three, the ALJ considers whether the claimant’s impairment or 20 combination of impairments meet or medically equal an impairment listed in Appendix 1 21 to Subpart P of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is 22 disabled. Id. If not, the ALJ proceeds to step four. Id. At step four, the ALJ assesses the 23 claimant’s RFC and determines whether the claimant is still capable of performing past 24 relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If so, the claimant is not disabled, and the 25 inquiry ends. Id. If not, the ALJ proceeds to the fifth step, where he determines whether 26 the claimant can perform any other work in the national economy based on the claimant’s 27 RFC, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If so, the 28 claimant is not disabled. Id. If not, the claimant is disabled. Id. 1 III. ANALYSIS 2 Plaintiff raises four arguments for the Court’s consideration: (1) the ALJ improperly 3 rejected the medical opinions of Plaintiff’s examining physician, Brent Geary, Ph.D. (“Dr. 4 Geary”); (2) the ALJ improperly rejected Plaintiff’s symptom testimony; (3) the ALJ 5 improperly rejected the lay witness testimony of Plaintiff’s wife, Lakita Wheat 6 (“Ms. Wheat”); and (4) the ALJ’s step-five finding is not supported by substantial evidence 7 because the vocational expert’s testimony was given in response to an incomplete 8 hypothetical question. (Pl. Br. at 7–18.) In its responsive brief, Defendant counters 9 Plaintiff’s arguments, arguing that the ALJ’s decision was supported by substantial 10 evidence and that the ALJ properly evaluated the medical evidence and Plaintiff’s 11 symptom testimony, and did not commit reversible error in evaluating Ms. Wheat’s 12 testimony. (Def. Br. at 7–24.) In reply, Plaintiff again asserts each of his four arguments 13 and further argues the ALJ failed to apply the correct legal standards. (Reply at 2–9.) 14 Plaintiff requests the case be remanded for an award of benefits, or for a de novo hearing 15 and new decision. (Pl. Br. at 19.) The Court considers Plaintiff’s four arguments in turn. 16 A. The ALJ Did Not Err In Evaluating the Medical Opinion Evidence, Including the Opinion of Dr. Geary. 17 18 In their briefing, the parties dispute whether the ALJ applied the correct standards 19 in evaluating the medical opinion evidence. Long-standing Ninth Circuit precedent 20 required ALJs to give deference to certain medical opinions based on the physician’s 21 relationship with the claimant. See, e.g., Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 22 1989). The Ninth Circuit afforded greater weight to the opinion of a treating physician, 23 reasoning that a treating physician “is employed to cure and has a greater opportunity to 24 know and observe the patient as an individual.” Id. (quoting Sprague v. Bowen, 812 F.2d 25 1226, 1230 (9th Cir. 1987)). The Ninth Circuit held that “[t]he opinion of an examining 26 physician is, in turn, entitled to greater weight than the opinion of a nonexamining 27 physician.” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (citations omitted). 28 1 However, in 2017, the SSA amended the regulations governing the evaluation of 2 medical evidence. See Revisions to Rules Regarding Evaluation of Medical Evidence, 3 82 Fed. Reg. 5844, 5844 (Jan. 18, 2017) (codified at 20 C.F.R. pts. 404 & 416). The new 4 regulations apply to applications, such as Plaintiff’s, that were filed on or after March 27, 5 2017. Id. The new regulations provide that the SSA “will not defer or give any specific 6 evidentiary weight, including controlling weight, to any medical opinion(s) . . . . The most 7 important factors we consider when we evaluate the persuasiveness of medical opinions 8 . . . are supportability . . . and consistency.” 20 C.F.R. § 404.1520c(a). 9 At the time the parties submitted their briefing, there was some question as to 10 whether the SSA’s new regulations displaced the Ninth Circuit precedent governing the 11 evaluation of medical opinion evidence. See, e.g., Pennock v. Comm’r of Soc. Sec., No. 12 CV-19-08191-PCT-DWL, 2020 WL 6796768, at *3 (D. Ariz. Nov. 19, 2020) (“Whether 13 the so-called ‘treating physician rule’ remains valid in light of the 2017 regulations appears 14 to be an open question in the Ninth Circuit.”). Plaintiff maintained that the Ninth Circuit’s 15 precedent remains “unchanged by any change in agency regulations.” (Pl. Br. at 8.) 16 Defendant countered that the new regulations supersede the prior caselaw. (Def. Br. at 13.) 17 The Ninth Circuit has since resolved the issue. In Woods v. Kijakazi, the Ninth 18 Circuit held that the new regulations supersede its prior caselaw establishing a hierarchy 19 of medical opinion evidence and affording deference to the opinions of examining or 20 treating physicians. 32 F.4th 785, 790–92 (9th Cir. 2022). The court of appeals held that 21 its prior requirement that ALJs provide “specific and legitimate reasons” for rejecting the 22 opinion of a treating or examining doctor is incompatible with the revised regulations. Id. 23 Nonetheless, in rejecting an examining or treating doctor’s opinion as unsupported or 24 inconsistent, an ALJ must still provide an explanation supported by substantial evidence. 25 Id. This means that the ALJ “must ‘articulate . . . how persuasive’ [he or she] finds ‘all of 26 the medical opinions’ from each doctor or other source . . . and ‘explain how [he or she] 27 considered the supportability and consistency factors’ in reaching these findings.” Id. 28 (citing 20 C.F.R. §§ 404.1520c(b), 404.1520(b)(2)). 1 Plaintiff argues that the ALJ improperly rejected the opinion of his examining 2 physician, Dr. Geary, by not providing specific and legitimate reasons for doing so. (Pl. Br. 3 at 7–14.) As noted, however, the new regulations supersede the prior Ninth Circuit caselaw 4 that required ALJs to provide specific and legitimate reasons for rejecting an examining 5 physician’s opinions. Nevertheless, the Court cannot affirm the ALJ’s rejection of 6 Dr. Geary’s opinions if the ALJ failed to provide an explanation supported by substantial 7 evidence. See Woods, 32 F.4th at 792. Defendant argues that the ALJ’s evaluation of the 8 medical opinion evidence was proper under the applicable regulations; that the ALJ 9 properly considered the consistency and supportability factors in finding the opinion of Dr. 10 Geary to be unpersuasive and finding the opinion of agency psychologist Elizabeth Covey, 11 Psy.D., to be persuasive; and that the ALJ cited substantial evidence in the record to support 12 these findings. (Def. Br. at 7–17.) The Court agrees with Defendant. 13 Dr. Geary issued a report providing his medical opinions based on an in-person 14 evaluation of Plaintiff on January 29, 2019 and his review of records provided by Plaintiff’s 15 counsel. (R. at 542–48.) Summarizing his impressions, Dr. Geary opined that Plaintiff is 16 “significantly impacted by deficits in his ability to attend to and sustain focus on 17 information and to deflect distractions,” which in turn affects his memory and ability to 18 focus. (R. at 548.) Dr. Geary concluded that Plaintiffs’ ADHD “poses an enormous 19 hindrance for him.” (Id.) He provided further opinions regarding Plaintiff’s depressive 20 attitude and withdrawn affect. (Id.) He found that Plaintiff’s conditions met the criteria in 21 Listings 12.04 Depressive Disorders, 12.06 Anxiety Disorders, and 12.11 ADHD. (Id.) He 22 opined that Plaintiff has been significantly limited in his ability to remember and carry out 23 job directives, perform independently without extensive supervision, deal with the public, 24 cope with work stress and pressure, and maintain sufficient persistence, pace, and 25 concentration in an employment context since June 2015. (R. at 548, 550-51.) 26 The ALJ found Dr. Geary’s opinions unpersuasive. (R. at 37.) In explaining this 27 conclusion, the ALJ evaluated the support for Dr. Geary’s opinions and their consistency 28 with other evidence in the record, as required under the applicable regulations. For 1 example, the ALJ noted that Dr. Geary’s assessment of Plaintiff’s mental limitations were 2 belied by Plaintiff’s employment history. (R. at 37–38.) Whereas Dr. Geary opined that 3 Plaintiff’s mental limitations dated from June 2015 to the present (R. at 552), Plaintiff’s 4 earning record shows he was engaged in substantial gainful activity until August 2016. 5 (R. at 203.) It follows that to the extent the limitations assessed by Dr. Geary existed prior 6 to August 2016, they did not preclude Plaintiff from substantial gainful activity during that 7 time. See Ahearn v. Saul, 988 F.3d 1111, 1117 (9th Cir. 2021) (finding claimant’s work 8 history supported ALJ’s decision where it showed he was gainfully employed despite 9 claiming lifelong mental and physical issues). The ALJ reasonably concluded that 10 Dr. Geary’s opinions were inconsistent with other evidence in the record—including other 11 evidence in Dr. Geary’s report. (R. at 37–38.) For example, Dr. Geary noted aspects of 12 Plaintiff’s lifestyle and daily activities, such as caring for his children and helping his wife 13 teach English diction classes online,1 that the ALJ found were inconsistent with Dr. Geary’s 14 conclusions about Plaintiff’s limitations. (Id.) See, e.g., Rollins v. Massanari, 261 F.3d 853, 15 856 (9th Cir. 2001) (affirming ALJ’s rejection of physician’s opinions about claimant’s 16 restrictions because they were inconsistent with the claimant’s level of activity in 17 “maintaining a household and raising two young children, with no significant assistance”). 18 Plaintiff emphasizes the limitations that Dr. Geary assessed with respect to 19 Plaintiff’s memory and concentration. (See Pl. Br. at 9–13 (citing R. at 543–48, 550–51, 20 638).) However, the ALJ found that Dr. Geary’s assessments were inconsistent with 21 Plaintiff’s treatment records, which “indicate normal memory and concentration on mental 22 status exams.” (R at 37–28.) For example, Plaintiff’s primary care provider’s clinical notes 23 dated December 17, 2018 indicate “normal memory” and “normal mood,” while also 24 noting “attention issues.” (R. at 463.) This is consistent with observations by mental health 25 1 Plaintiff argues that “[t]here is simply not enough information in the record about this activity for the ALJ to have concluded that it conflicts with Dr. Geary’s opinion.” (Pl. Br. 26 at 13.) It is true that the record is not clear on exactly how Plaintiff assists his wife with the online classes. According to Dr. Geary, Plaintiff stated that “on Tuesday through Friday, I 27 get up about 2:30 a.m. to help my wife teach Chinese kids American diction on-line. I set up the computer for her.” (R. at 545.) Even if this description represents the full extent of 28 Plaintiff’s involvement in this activity, it still provides support for the ALJ’s conclusion that the activity is inconsistent with Dr. Geary’s opinions regarding Plaintiff’s limitations. 1 providers that Plaintiff’s memory was intact during six clinical visits from November 22, 2 2016, to March 22, 2018. (R. at 298, 304, 310, 315, 320, 327.) With respect to Plaintiff’s 3 ability to focus, Dr. Geary noted that Plaintiff’s concentration was satisfactory during the 4 evaluation with the exception of interruptions by his son. (R. at 543.) In short, while a 5 different factfinder may have evaluated Dr. Geary’s opinions differently, the Court cannot 6 say the ALJ rejected Dr. Geary’s opinions “without providing an explanation supported by 7 substantial evidence.” Woods, 32 F.4th at 792. 8 The ALJ did not err in considering the other medical opinion evidence. The ALJ 9 found the opinion of consultative examiner Erica Neal to be unpersuasive, finding her 10 opinion that claimant’s conditions did not pose significant limitations inconsistent with the 11 evidence, “which supports some functional limitations.” (R. at 38.) By contrast, the ALJ 12 found Dr. Covey’s prior administrative medical findings persuasive after evaluating 13 whether they were supported by, and consistent with, the medical record. (R. at 37.) 14 Plaintiff points out that Dr. Geary provided follow-up reports stating his disagreement with 15 the opinions of the SSA’s evaluators (Pl. Br. at 12; see R. at 637–39), including a report by 16 A. Lizarraras, M.D., dated May 15, 2019, which found only moderate limitations with 17 respect to Plaintiff’s memory. (R. at 112–13.). Dr. Geary critiqued Dr. Lizarraras’s report 18 and explained why his findings were more accurate and better supported. (R. at 638–39.) 19 However, the ALJ stated she found Plaintiff’s mental health treatment records, which 20 included the observations that Plaintiff’s memory was intact, to be more reliable than 21 Dr. Geary’s opinions, which were inconsistent with other evidence in the record. (R. at 38.) 22 The Court is not tasked with comparing the different medical opinions and 23 independently evaluating them; it may set aside an ALJ’s determination only if the 24 determination is not supported by substantial evidence or is based on legal error. Orn, 495 25 F.3d at 630. Because the ALJ’s findings regarding the medical opinion evidence are 26 supported by substantial evidence and free of legal error, the Court must defer to the ALJ’s 27 interpretation of the information presented and the persuasiveness of the opinions given. 28 For these reasons, the Court cannot conclude that the ALJ erred in evaluating this evidence. 1 B. The ALJ Did Not Err in Evaluating Plaintiff’s Symptom Testimony. 2 Plaintiff next argues that the ALJ improperly rejected his testimony regarding the 3 intensity and persistence of his symptoms without providing specific, clear and convincing 4 reasons supported by substantial evidence for doing so. (Pl. Br. at 14–16.) Defendant 5 contends that the ALJ properly considered Plaintiff’s symptom testimony and provided 6 valid and sufficient reasons, supported by substantial evidence, for rejecting it. (Def. Br. at 7 18–22.) The Court agrees that the ALJ did not err in evaluating Plaintiff’s testimony. 8 An ALJ performs a two-step analysis to evaluate a claimant’s symptom testimony. 9 Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). First, the ALJ evaluates “‘whether 10 the claimant has presented objective medical evidence of an underlying impairment which 11 could reasonably be expected to produce the pain or symptoms alleged.’” Id. (quoting 12 Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007)). If the claimant presents 13 such evidence, then “‘the ALJ can reject the claimant’s testimony about the severity of her 14 symptoms only by offering specific, clear and convincing reasons for doing so.’” Id. (citing 15 Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)); see also Brown-Hunter v. Colvin, 16 806 F.3d 487, 489 (9th Cir. 2015) (“[W]e require the ALJ to specify which testimony she 17 finds not credible, and then provide clear and convincing reasons, supported by evidence 18 in the record, to support that credibility determination.”). 19 Plaintiff argues that the ALJ failed to specify the testimony she found not credible 20 and failed to point to specific evidence in the record to support her reasons for rejecting his 21 testimony. (Pl. Br. at 14–16.) On the contrary, the ALJ assessed the credibility of Plaintiff’s 22 testimony and compared his allegations regarding his symptoms with evidence in the 23 record, including physical and mental examination findings, treatment records, Plaintiff’s 24 prior inconsistent descriptions of his symptoms, his employment history, and information 25 about his daily activities. (R. at 34–36.) The ALJ explained how the inconsistencies 26 between this evidence and Plaintiff’s testimony supported her conclusions as to why 27 specific portions of his testimony regarding the intensity, persistence, and limiting effects 28 of his symptoms were not persuasive. (Id.) For example, the ALJ cited medical evidence 1 in the record regarding Plaintiff’s mental status examinations that revealed adequate 2 grooming and hygiene (R. at 35 (citing Ex. 1F/2-3, 15, 20, 25, 32)), which undermined 3 Plaintiff’s testimony about his poor hygiene. (See, e.g., R. at 61, 72.) 4 Plaintiff notes that the ALJ relied in part on Plaintiff’s occasional non-compliance 5 with taking his medications in finding that his reported symptoms may not have been as 6 severe as he alleged. (Pl. Br. at 15.) Plaintiff counters that his occasional noncompliance is 7 not a “willful choice,” but an effect of his poor memory. (Id.) However, the specific reason 8 for Plaintiff’s non-compliance does not affect the ALJ’s overall findings that Plaintiff’s 9 symptoms responded to treatment and may not have been as serious as Plaintiff alleged. 10 Cf. Warre v. Comm’r of Social Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) 11 (“Impairments that can be controlled effectively with medication are not disabling for the 12 purpose of determining eligibility for SSI benefits.”) (citations omitted). And to the extent 13 Plaintiff claimed that his poor memory caused his failure to refill his medications (R. at 14 76), as noted, treatment records support the ALJ’s finding that Plaintiff’s memory is not as 15 impaired as he claimed. (See R. at 298, 304, 310, 315, 320, 327.) 16 C. The ALJ Did Not Commit Reversible Error In Evaluating the Lay Witness Testimony of Plaintiff’s Wife. 17 18 Plaintiff contends that the ALJ improperly rejected the lay witness testimony of his 19 wife, Ms. Wheat, without providing sufficient reasons for doing so. (Pl. Br. at 14–15.) “In 20 determining whether a claimant is disabled, an ALJ must consider lay witness testimony 21 concerning a claimant’s ability to work.” Stout v. Comm’r, 454 F.3d 1050, 1053 (9th Cir. 22 2006) (citations omitted). To properly disregard such testimony, an ALJ must provide 23 reasons for doing so that are specific and “germane to each witness.” Nguyen v. Chater, 24 100 F.3d 1462, 1467 (9th Cir.1996). This rule also applies to written statements. See, e.g., 25 Schneider v. Comm’r of Social Sec. Admin., 223 F.3d 968, 974–75 (9th Cir. 2000). 26 There is merit to Plaintiff’s argument. As Plaintiff notes, the ALJ addressed 27 Ms. Wheat’s testimony merely by stating that “[t]he undersigned appreciates her concern 28 for the claimant’s well-being, but her statements are not persuasive of additional 1 restrictions in the RFC. Further, the extreme limits are not supported by the medical 2 evidence of record.” (R. at 38.) Though not entirely lacking, this explanation was not 3 thorough. 4 However, the Court need not remand or reverse an ALJ’s decision if it is clear from 5 the record that the error is “inconsequential to the ultimate nondisability determination.” 6 Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citation and quotation marks 7 omitted). When the ALJ fails to give specific reasons for rejecting lay testimony but gives 8 sufficiently specific reasons for rejecting similar testimony by the claimant, the error may 9 be harmless if “the ALJ’s reasons for rejecting [the plaintiff’s] testimony apply with equal 10 force to the lay testimony.” Molina v. Astrue, 674 F.3d 1104, 1122 (9th Cir. 2012). 11 Here, any error was harmless because Ms. Wheat’s testimony described functional 12 limitations similar to those to which Plaintiff testified. For example, Ms. Wheat stated 13 Plaintiff needs prompting to maintain hygiene. (R. at 219.) She stated Plaintiff prepares 14 meals with her, does light housework twice a week, and helps with grocery shopping. (R. at 15 220, 221.) Finally, she stated that Plaintiff’s depression, anxiety and ADHD have continued 16 to impact his daily activities. (R. at 225.) The limitations that Plaintiff’s wife described in 17 her statement are similar to those to which Plaintiff testified during the hearing (See R. at 18 56, 68, 72, 74) and described in his own written statement. (See 228, 229, 231.) Because, 19 as noted above, the ALJ gave clear and convincing reasons for rejecting Plaintiff’s 20 testimony, those reasons are equally sufficient to reject Ms. Wheat’s testimony. 21 D. The ALJ Did Not Err In Relying On Vocational Expert Testimony Given In Response To A Purportedly Incomplete Hypothetical Question. 22 23 Finally, Plaintiff argues that the ALJ’s step-five finding is not supported by 24 substantial evidence because the ALJ relied on vocational expert testimony given in 25 response to hypothetical questions that omitted Plaintiff’s and Ms. Wheat’s allegations 26 regarding his symptoms and the limitations assessed by Dr. Geary. (Pl. Br. at 17–18.) 27 As Plaintiff notes, hypothetical questions posed to a vocational expert must contain 28 all of a claimant’s limitations that are supported by substantial evidence. Magallanes, 881 || F.2d at 756. But in posing hypotheticals, “the ALJ must only include those limitations that 2|| are supported by substantial evidence.” Robbins v. Social Sec. Admin., 466 F.3d 880, 886 || (9th Cir. 2006) (citation omitted). Here, there was substantial evidence to support the ALJ’s 4|| findings that Dr. Geary’s medical opinions, Plaintiffs symptom testimony, and 5 || Ms. Wheat’s written statement were unpersuasive and inconsistent with other evidence in || the record. Accordingly, the hypothetical questions that the ALJ posed for the vocational expert properly included only those limitations the ALJ found were supported by 8 || substantial evidence, and did not include those the ALJ found were not supported by substantial evidence—such as the limitations cited by Plaintiff. Thus, the ALJ did not err. 10 IT IS THEREFORE ORDERED affirming the August 17, 2020 decision of the 11 || Administrative Law Judge (R. at 28-41) as upheld by the Appeals Council on January 21, 2021. (R. at 10-12). 13 IT IS FURTHER ORDERED directing the Clerk to enter final judgment consistent with this Order and close this case. 15 Dated this 4th day of January, 2023. CN 16 “wok: 17 wef hlee— Unifga StatesDistrict Judge 18 19 20 21 22 23 24 25 26 27 28 -12-