(SS) Applegate v. Commissioner of Social Security ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JON JON CONWAY APPLEGATE, No. 2:18-cv-00581 JAM CKD 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 ANDREW SAUL, Commissioner of Social Security, 15 Defendant. 16 17 18 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 19 (“Commissioner”) denying an application for Supplemental Security Income (“SSI”) under Title 20 XVI of the Social Security Act (“Act”). For the reasons discussed below, the undersigned 21 recommends that plaintiff’s motion for summary judgment be denied and the Commissioner’s 22 cross-motion for summary judgment be granted. 23 BACKGROUND 24 Plaintiff, born in 1966, applied on November 4, 2013 for SSI and disability insurance 25 benefits, alleging disability beginning August 29, 2013. Administrative Transcript (“AT”) 18, 28. 26 Plaintiff alleged he was unable to work due to depression, schizophrenia, hearing voices, back 27 injury, and right knee injury. AT 93. In a decision dated September 21, 2016, the ALJ 28 //// 1 determined that plaintiff was not disabled.1 AT 18-30. The ALJ made the following findings 2 (citations to 20 C.F.R. omitted): 3 1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2018. 4 2. The claimant has not engaged in substantial gainful activity since 5 August 29, 2013, the alleged onset date. 6 3. The claimant has the following severe impairments: thoracic spine compression fracture; bilateral sacral joint degenerative changes; 7 meniscal tear of the right knee, status post arthroscopy and meniscectomy; history of lumbar fusion surgery; depression; and a 8 pain disorder. 9 4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed 10 1 Disability Insurance Benefits are paid to disabled persons who have contributed to the 11 Social Security program, 42 U.S.C. § 401 et seq. Supplemental Security Income is paid to 12 disabled persons with low income. 42 U.S.C. § 1382 et seq. Both provisions define disability, in part, as an “inability to engage in any substantial gainful activity” due to “a medically 13 determinable physical or mental impairment. . . .” 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). A parallel five-step sequential evaluation governs eligibility for benefits under both programs. 14 See 20 C.F.R. §§ 404.1520, 404.1571-76, 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S. Ct. 2287 (1987). The following summarizes the sequential evaluation: 15 Step one: Is the claimant engaging in substantial gainful 16 activity? If so, the claimant is found not disabled. If not, proceed to step two. 17 Step two: Does the claimant have a “severe” impairment? If 18 so, proceed to step three. If not, then a finding of not disabled is appropriate. 19 Step three: Does the claimant’s impairment or combination 20 of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App.1? If so, the claimant is automatically determined 21 disabled. If not, proceed to step four. 22 Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. 23 Step five: Does the claimant have the residual functional 24 capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 25 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). 26 27 The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Bowen, 482 U.S. at 146 n.5, 107 S. Ct. at 2294 n.5. The Commissioner bears the 28 burden if the sequential evaluation process proceeds to step five. Id. 1 impairments in 20 CFR Part 404, Subpart P, Appendix 1. 2 5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform 3 light work except he can occasionally climb, kneel, crouch, and crawl; can frequently balance and stoop; must avoid concentrated 4 exposure to hazards such as dangerous machinery, unprotected heights, and uneven surfaces; and can perform simple tasks in a 5 setting with few workplace changes and no more than occasional interaction with the general public and coworkers. 6 6. The claimant is unable to perform any past relevant work.2 7 7. The claimant was born on XX/XX/1966 and was 47 years old, 8 which is defined as a younger individual age 18-49 on the alleged disability onset date. The claimant subsequently changed age 9 category to closely approaching advanced age. 10 8. The claimant has at least a high-school education and is able to communicate in English. 11 9. Transferability of job skills is not material to the determination of 12 disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is ‘not disabled,’ 13 whether or not the claimant has transferable job skills. 14 10. Considering the claimant’s age, education, work experience, and residual functional capacity, there are jobs that exist in significant 15 numbers in the national economy that the claimant can perform. 16 11. The claimant has not been under a disability, as defined in the Social Security Act, from August 29, 2013 through the date of this 17 decision. 18 AT 20-29. 19 ISSUES PRESENTED 20 Plaintiff argues that the ALJ committed the following errors in finding plaintiff not 21 disabled: (1) the ALJ improperly rejected the treating doctor’s opinion; (2) the ALJ improperly 22 rejected plaintiff’s testimony; and (3) the ALJ’s step five finding is not supported by substantial 23 evidence. 24 LEGAL STANDARDS 25 The court reviews the Commissioner’s decision to determine whether (1) it is based on 26 proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record 27 2 “The claimant’s past relevant work was as a truck driver, an order clerk, a stock clerk, and a 28 caretaker.” AT 28. 1 as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial 2 evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 3 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means “such relevant evidence as a reasonable 4 mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th 5 Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “The ALJ is 6 responsible for determining credibility, resolving conflicts in medical testimony, and resolving 7 ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). 8 “The court will uphold the ALJ’s conclusion when the evidence is susceptible to more than one 9 rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). 10 The record as a whole must be considered, Howard v. Heckler, 782 F.2d 1484, 1487 (9th 11 Cir. 1986), and both the evidence that supports and the evidence that detracts from the ALJ’s 12 conclusion weighed. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not 13 affirm the ALJ’s decision simply by isolating a specific quantum of supporting evidence. Id.; see 14 also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the 15 administrative findings, or if there is conflicting evidence supporting a finding of either disability 16 or nondisability, the finding of the ALJ is conclusive, see Sprague v. Bowen, 812 F.2d 1226, 17 1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied in 18 weighing the evidence. See Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). 19 ANALYSIS 20 A. Medical Opinions 21 Plaintiff asserts that the ALJ improperly weighed the opinions of his treating doctor, Dr. 22 Jane Wang. 23 The weight given to medical opinions depends in part on whether they are proffered by 24 treating, examining, or non-examining professionals. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 25 1995). Ordinarily, more weight is given to the opinion of a treating professional, who has a 26 greater opportunity to know and observe the patient as an individual. Id.; Smolen v. Chater, 80 27 F.3d 1273, 1285 (9th Cir. 1996). 28 //// 1 To evaluate whether an ALJ properly rejected a medical opinion, in addition to 2 considering its source, the court considers whether (1) contradictory opinions are in the record, 3 and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a 4 treating or examining medical professional only for “clear and convincing” reasons. Lester, 81 5 F.3d at 831. In contrast, a contradicted opinion of a treating or examining professional may be 6 rejected for “specific and legitimate” reasons, that are supported by substantial evidence. Id. at 7 830. While a treating professional’s opinion generally is accorded superior weight, if it is 8 contradicted by a supported examining professional’s opinion (e.g., supported by different 9 independent clinical findings), the ALJ may resolve the conflict. Andrews v. Shalala , 53 F.3d 10 1035, 1041 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). In 11 any event, the ALJ need not give weight to conclusory opinions supported by minimal clinical 12 findings. Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (treating physician’s conclusory, 13 minimally supported opinion rejected); see also Magallanes , 881 F.2d at 751. The opinion of a 14 non-examining professional, without other evidence, is insufficient to reject the opinion of a 15 treating or examining professional. Lester, 81 F.3d at 831. 16 Dr. Wang examined plaintiff multiple times in 2014, after the alleged disability onset date 17 of August 29, 2013. In addition to her treatment notes, Dr. Wang wrote a Treating Physician’s 18 Final Report in December 2014 regarding plaintiff’s medical history and the condition of his 19 lower back and right knee. AT 1476-1485. She opined that plaintiff’s condition was permanent 20 and stationary with regard to his low back. AT 1483. She further reported that plaintiff’s 21 permanent work-related conditions included no repetitive lifting over 15 pounds, with limited 22 bending, stooping, crouching, squatting, twisting, pushing, pulling, and no crawling. AT 1484. 23 Evaluating the medical opinions in the record, the ALJ gave “great weight” to the 24 opinions of State agency consulting physicians Dr. Jone and Dr. Amon, who reviewed plaintiff’s 25 records in 2014 and opined that he was capable of lifting and carrying 20 pounds occasionally 26 and 10 pounds frequently; standing and/or walking about 6 hours in an 8-hour workday; sitting 27 about 6 hours in an 8-hour workday; and other exertional limitations. AT 26; see AT 101-103, 28 119-120. The ALJ credited these opinions “because they are well supported by the record as a 1 whole as discussed above, the improving findings on physical examinations since October 2013, 2 and the mild objective findings on imaging studies since October 2013.” AT 26; see AT 24-26. 3 The ALJ also largely credited the opinion of examining physician Dr. William Ramsey, 4 who reviewed plaintiff’s medical records in September 2015 and opined that plaintiff had no 5 restrictions on routine ambulation but did have certain exertional limitations. AT 26-27, citing 6 AT 1531-1541. “To the extent that it is consistent with this decision, I give Dr. Ramsey’s opinion 7 great weight, but find that the claimant is more limited in his ability to lift and carry, push and 8 pull based upon the record as a whole, and the longitudinal history of severe lumbar and right 9 knee pain,” the ALJ stated. AT 27. 10 The ALJ next discussed Dr. Wang’s opinions as follows: 11 In contrast, in May 2014, Jane Wang, M.D., who had treated the claimant for 2 months at that time, opined that the claimant should 12 not lift over 5 pounds, is limited in bending, stooping, crouching, squatting, twisting, pushing and pulling, and should alternate sitting 13 and standing at work.3 Subsequently, in June 2014, she opined that the claimant should not perform repetitive lifting over 10 pounds, is 14 limited in bending, stooping, crouching, squatting, twisting, pushing and pulling, and no crawling.4 In July and August 2014, Dr. Wang 15 opined that lifting was limited to 10 pounds, and that he continued to be limited in bending, stooping, crouching, squatting, twisting, 16 pushing, pulling, climbing and crawling.5 Thereafter, in December 2014, Dr. Wang opined that the claimant had reached maximum 17 medical improvement, and that he had the permanent work restrictions of no repetitive lifting over 15 pounds, limiting bending, 18 stooping, crouching, squatting, twisting, pushing and pulling, and no crawling.6 19 My RFC finding is not entirely inconsistent with Dr. Wang’s 20 opinions since June 2014. The undersigned finds that the claimant is capable of occasionally lifting and carrying 20 pounds and frequently 21 10 pounds, and that the claimant is limited in his postural activities as indicated above. Dr. Wang precluded the claimant from 22 ‘repetitive lifting over 10 pounds,’ which is not the same as frequent. Nonetheless, I give Dr. Wang’s opinions since June 2014 less weight 23 than the opinions of the DDS medical consultants and Dr Ramsey 24 3 AT 761-764. 25 4 AT 754-758. 26 27 5 AT 785-789, 792-796. 28 6 AT 1484. 1 based upon the mild objective findings on physical examinations, including the findings of negative straight leg raising tests, a full 2 range of motion of the right knee, and normal motor sensation and strength, since March 2014, and based upon the mild objective 3 findings on imaging studies of the lumbar spine and right knee. Further, I give no weight to Dr. Wang’s opinion from May 2014 4 because the objective findings do not support the level of limitations opined by her at that time, and based upon Dr. Wang’s own 5 assessment that [he had] not yet reached maximal[] medical improvement. 6 7 AT 27 (emphasis added). 8 Plaintiff argues that the ALJ should have credited Dr. Wang’s opined limitation of “no 9 repetitive lifting over 15 pounds” and that the ALJ’s rejection of this limitation was not supported 10 by specific and legitimate reasons. As the ALJ pointed out, however, the RFC was not entirely 11 inconsistent with Dr. Wang’s opinions. An RFC for light work involves lifting no more than 20 12 pounds at a time, with frequent lifting or carrying of objects weighing up to 10 pounds. 20 C.F.R. 13 § 404.1567(b). With an RFC for light work, therefore, plaintiff could “frequently”7 lift up to 10 14 pounds, while per Dr. Wang, he could not “repetitively” lift more than 15 pounds. The RFC for 15 light work also contemplates lifting up to 20 pounds occasionally (see AT 27), which plaintiff 16 contends amounts to “repetitive” lifting of more than 15 pounds. 17 To the extent the RFC may permit more lifting than contemplated by Dr. Wang’s opinion, 18 the ALJ resolved the ambiguity by relying on other medical opinions. In support, the ALJ cited 19 plaintiff’s mild objective findings on physical examinations, including normal motor sensation 20 and strength. See AT 24 (citing exam findings of no motor weakness and normal sensation in the 21 bilateral upper and lower extremities, and good range of motion of the right knee), AT 25 (citing 22 exam findings of normal motor strength and sensation). The ALJ also cited 2014 exam findings 23 that plaintiff moved normally, sat comfortably, and was able to stand with ease from sitting. AT 24 24; see, e.g., AT 553, 594. “Moreover, the imaging studies since October 2013 also documented 25 only mild objective findings,” the ALJ noted. AT 25; see, e.g., AT 790-791, 1205-1206, 1351. 26 The undersigned concludes that the ALJ provided specific and legitimate reasons for not fully 27 7 In the context of light work, “frequent” means occurring from one-third to two-thirds of the 28 time. SSR 83-10. 1 adopting Dr. Wang’s opined lifting restrictions. 2 As to other postural limitations opined by Dr. Wang, to the extent these conflict with the 3 RFC’s postural limitations, plaintiff has not shown that the record supports exertional limitations 4 greater than reflected in the RFC. In multiple 2014 treatment notes, Dr. Wang stated that plaintiff 5 could perform “limited” postural activities, not necessarily inconsistent with an RFC for 6 “occasional” climbing, kneeling, crouching, and crawling and “frequent” balancing and stooping. 7 AT 758, 789, 795, 1484. As with the lifting limitation, above, the ALJ resolved any ambiguities 8 in favor of Dr. Ramsey and the consulting physicians, though he concluded that plaintiff was 9 “more limited in his ability to lift and carry, push and pull” than Dr. Ramsey opined, citing the 10 overall record and plaintiff’s history of lumbar and knee pain. AT 27. The ALJ’s weighing of 11 the medical opinions is supported by record evidence, and the court finds no error on this basis. 12 B. Credibility 13 Plaintiff next asserts that the ALJ improperly discounted his subjective symptoms. 14 The ALJ determines whether a disability applicant is credible, and the court defers to the 15 ALJ’s discretion if the ALJ used the proper process and provided proper reasons. See, e.g., 16 Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1995). If credibility is critical, the ALJ must make an 17 explicit credibility finding. Albalos v. Sullivan, 907 F.2d 871, 873-74 (9th Cir. 1990); Rashad v. 18 Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990) (requiring explicit credibility finding to be 19 supported by “a specific, cogent reason for the disbelief”). 20 In evaluating whether subjective complaints are credible, the ALJ should first consider 21 objective medical evidence and then consider other factors. Bunnell v. Sullivan, 947 F.2d 341, 22 344 (9th Cir. 1991) (en banc). If there is objective medical evidence of an impairment, the ALJ 23 then may consider the nature of the symptoms alleged, including aggravating factors, medication, 24 treatment and functional restrictions. See id. at 345-47. The ALJ also may consider: (1) the 25 applicant’s reputation for truthfulness, prior inconsistent statements or other inconsistent 26 testimony, (2) unexplained or inadequately explained failure to seek treatment or to follow a 27 prescribed course of treatment, and (3) the applicant’s daily activities. Smolen v. Chater, 80 F.3d 28 1273, 1284 (9th Cir. 1996); see generally SSR 96-7P, 61 FR 34483-01; SSR 95-5P, 60 FR 55406- 1 01; SSR 88-13. Work records, physician and third party testimony about nature, severity and 2 effect of symptoms, and inconsistencies between testimony and conduct also may be relevant. 3 Light v. Social Security Administration, 119 F.3d 789, 792 (9th Cir. 1997). A failure to seek 4 treatment for an allegedly debilitating medical problem may be a valid consideration by the ALJ 5 in determining whether the alleged associated pain is not a significant nonexertional impairment. 6 See Flaten v. Secretary of HHS, 44 F.3d 1453, 1464 (9th Cir. 1995). The ALJ may rely, in part, 7 on his or her own observations, see Quang Van Han v. Bowen, 882 F.2d 1453, 1458 (9th Cir. 8 1989), which cannot substitute for medical diagnosis. Marcia v. Sullivan, 900 F.2d 172, 177 n.6 9 (9th Cir. 1990). “Without affirmative evidence showing that the claimant is malingering, the 10 Commissioner’s reasons for rejecting the claimant’s testimony must be clear and convincing.” 11 Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). 12 The ALJ summarized plaintiff’s hearing testimony as follows: 13 At the hearing, the claimant testified that he is unable to work due to horrible pain in his right knee and mid-back. He testified that his 14 right knee is usually at a 6 or 7 on a pain scale of 1 to 10, with 10 being the worst. He is not taking any prescription pain medications, 15 but just Tylenol or Ibuprofen because he has no insurance, and cannot afford it. The claimant testified that he can only sit for 1 hour 16 and then gets stiff and has sharp pains, stand for 20 minutes and walk for about half a mile due to knee and back pain, can lift 10 to 15 17 pounds only, can reach and stoop only occasionally, and can never kneel. The claimant has been using a cane to ambulate because he 18 was losing balance and his right knee was in pain. He is able to walk short distances like from the hearing building to the parking lot, but 19 needs to use the cane for long distances. 20 AT 23; see AT 43-79 (hearing transcript). 21 The ALJ found that “[t]he medical records partially support the claimant’s allegations, but 22 do not support the level of limitations alleged by him.” AT 24. The ALJ first considered the 23 objective medical evidence, beginning in June 2013 when plaintiff sustained a work injury and 24 reported right knee and back pain. AT 24. After detailing the imaging studies and treatment from 25 this period, the ALJ noted that, in October 2013, plaintiff underwent right knee arthroscopy and, 26 subsequently, had physical therapy until February 2014. AT 24. At that time, plaintiff “elected 27 to discontinue [physical therapy] prior to attaining the agreed upon goals and treatment plan of 28 care,” the ALJ noted. AT 24; see AT 539-540, 587, 589, 592. 1 The ALJ summarized objective evidence showing that, after February 2014, “the severity 2 of his [physical] impairments improved.” AT 24-25. Plaintiff does not take issue with the 3 objective evidence cited by the ALJ during this period, including examination findings of 4 negative straight leg raising tests, no motor weakness, normal sensation in the bilateral upper and 5 lower extremities, and good range of motion in the right knee. AT 24-25. “The claimant also 6 stated he was walking better by late April 2014, and he had a good range of motion of the right 7 knee,” the ALJ noted. AT 25. “In sum, the medical records show that the claimant’s condition 8 steadily improved since his right knee surgery in October 2013 as shown by his physical 9 examinations and reports by his examining and treating physicians,” the ALJ concluded. AT 25. 10 As to plaintiff’s pain disorder, found to be a severe impairment (AT 21), the ALJ noted 11 plaintiff’s testimony that he was taking over-the-counter medications for pain and had not been 12 prescribed pain medication for over a year. AT 56-57; see AT 525-526, 530, 533 (painkillers 13 prescribed after knee surgery). Plaintiff testified that used a cane for his right knee based on his 14 own decision, not because a doctor had prescribed or recommended it. AT 68-69. The ALJ 15 summarized March and April 2014 medical notes stating that plaintiff “was walking better with 16 no cane although he still had an antalgic gait . . . moved normally and sat comfortably, and was 17 able to stand with ease from sitting.” AT 24. By March 2014, plaintiff was reporting that he 18 would “walk 4 hours to get away on his own”; and later that year exhibited “no tenderness to 19 palpitation over the medial joint line, no crepitus, and normal motor strength of the knees.” AT 20 26. The ALJ also cited plaintiff’s statement to consultative evaluator Dr. Wendy McCray in April 21 2014 “that he did not have functional limitations and . . . is independent in completing all 22 activities of self-care.” AT 21; see AT 546. 23 As to alleged mental impairments, the ALJ found plaintiff’s allegations of disabling 24 depression “only partially supported by the medical records.” AT 25. At the hearing, plaintiff 25 “testified that he used to have a cheerful personality, but that now he is depressed. He now 26 forgets things easily, has difficulty concentrating, and is not always able to stay on task,” the ALJ 27 noted. AT 23; see AT 43-79. Turning to the objective medical evidence, the ALJ noted that, 28 while plaintiff was diagnosed with major depressive disorder and psychosis in September 2013, 1 “the medical records do not contain any evidence that the claimant sought further mental health 2 treatment” after October 2013. AT 25. “The only other evidence of mental health treatment is 3 from March 2014 when the claimant was treated at the emergency room of Kaiser after 4 overdosing on Ativan,” but plaintiff was not found to be suicidal and was treated and sent home. 5 AT 26. In April 2014, plaintiff underwent a psychiatric consultative evaluation and was 6 diagnosed with a depressive disorder and cannabis use disorder, but there were “no other record 7 of treatment of any kind for the claimant’s depression,” the ALJ noted. AT 27. Plaintiff does not 8 dispute this summary of the evidence concerning mental health. 9 “While these medical records support a finding of ‘severe’ depression, the dearth of 10 mental health treatment since March 2014 and the observations by the claimant’s treatment 11 providers and [the consultative examiner] on mental status examinations do not support a finding 12 that the claimant’s depression is disabling,” the ALJ concluded. AT 26; see AT 27-28 13 (summarizing medical opinions as to mental health). 14 Plaintiff asserts that the ALJ failed to provide sufficient reasons for discounting his 15 subjective symptoms, citing Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015) (ALJ’s 16 failure “to identify the testimony she found not credible” and “link that testimony to particular 17 parts of the record supporting her non-credibility determination” was legal error). See also 18 Treichler v. Comm’r of Soc. Sec., 775 F.3d 1090, 1102-1103 (9th Cir. 2014) (ALJ’s failure to 19 “specifically identify the testimony” he found not credible was error; boilerplate statement that 20 symptoms were not credible to the extent they were inconsistent with the RFC was insufficient). 21 Here, however, the ALJ sufficiently explained why the objective record of physical and mental 22 impairment, evidence of post-surgical improvement (including as to pain), and the lack of 23 significant treatment for depression undercut plaintiff’s subjective testimony of disabling 24 symptoms. 25 C. Available Jobs 26 Lastly, plaintiff argues that the ALJ’s step five finding of available jobs was not supported 27 by substantial evidence. 28 “At Step Five . . . , the Commissioner bears the burden of proving that the claimant can 1 perform other jobs that exist in substantial numbers in the national economy. 20 C.F.R. § 2 416.920(f). There are two ways for the Commissioner to meet this burden: (1) by the testimony 3 of a vocational expert or (2) by reference to the grids.” Bruton v. Massanari, 268 F.3d 824, 828 4 n.1 (9th Cir. 2001) (internal citations omitted). In this case, the Commissioner employed the 5 testimony of a vocational expert. While the ALJ may pose to the expert a range of hypothetical 6 questions to a vocational expert, based on alternate interpretations of the evidence, the 7 hypothetical that ultimately serves as the basis for the ALJ’s determination must be supported by 8 substantial evidence in the record as a whole. Embrey v. Bowen, 849 F.2d 418, 422-23 (9th Cir. 9 1988). 10 Here, the ALJ relied on vocational expert testimony that a person with plaintiff’s RFC 11 could perform the requirements of representative occupations such as inspector of electrical 12 equipment (Dictionary of Occupational Titles (DOT) 727.687.062), x-ray inspector (DOT 13 529.685-274), and bottling line attendant (DOT 920.687-042). AT 29. The first two jobs are 14 defined in the DOT as having a Reasoning Level of 2.8 Plaintiff argues that these jobs are 15 inconsistent with plaintiff’s RFC for “simple tasks in a setting with few workplace changes.” 16 However, the third identified job, bottling line attendant, has a Reasoning Level of 1. The 17 vocational expert testified that there were 45,000 such jobs available in California and more than 18 300,000 such jobs in the United States. AT 29, 86. Because at least one viable job existed in 19 sufficient numbers, any error as to the reasoning levels of the other two jobs was harmless. See 20 20 C.F.R. § 404.1566(b) (providing that “[w]ork exists in the national economy when there is a 21 significant number of jobs (in one or more occupations) having requirements which you are able 22 to meet”) (emphasis added). See also Thomas v. Comm’r, 480 F3d. Appx. 462, 464 (9th Cir. 23 2012) (affirming ALJ even though claimant could not perform two identified jobs because she 24 8 There are six GED Reasoning Levels ranging from Level One (the simplest) to Level Six (the 25 most complex). At Level One, an individual can “[a]pply commonsense understanding to carry out simple one- or two-step instructions. Deal with standardized situations with occasional or no 26 variables in or from these situations encountered on the job.” DOT App. C, § III (emphasis 27 added). At Level Two, an individual can “[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions. Deal with problems involving a few concrete 28 variables in or from standardized situations.” 1 | could perform the remaining job of housekeeper, which existed in significant numbers in the 2 | national economy). 3 Plaintiff next argues that the ALJ’s hypothetical questions to the VE did not include all of 4 | plaintiffs limitations, as set forth in the foregoing claims. Because the undersigned has 5 | considered these claims and found them without merit, plaintiff has not shown that the RFC used 6 | inthe ALJ’s questions to the VE was unsupported by substantial evidence. 7 | CONCLUSION 8 For the reasons stated herein, IT IS HEREBY RECOMMENDED that: 9 1. Plaintiff's motion for summary judgment (ECF No. 19) be denied; 10 2. The Commissioner’s cross-motion for summary judgment (ECF No. 22) be granted; 11 | and 12 3. Judgment be entered for the Commissioner. 13 These findings and recommendations are submitted to the United States District Judge 14 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 15 | after being served with these findings and recommendations, any party may file written 16 | objections with the court and serve a copy on all parties. Such a document should be captioned 17 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 18 || within the specified time may waive the right to appeal the District Court’s order. Martinez v. 19 | Yist, 951 F.2d 1153 (9th Cir. 1991). 20 || Dated: November 20, 2019 bh rdf /f [ { gt 21 CAROLYNK.DELANEY 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 || 2/applegate0581.ssi.ckd_f&rs 26 27 28 13