(SS) Ramos v. Commissioner of Social Security ( 2020 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SALLY Z. RAMOS, No. 2:18-CV-0060-DMC 12 Plaintiff, 13 v. MEMORANDUM OPINION AND ORDER 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 18 Plaintiff, who is proceeding with retained counsel, brings this action for judicial 19 review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). 20 Pursuant to the written consent of all parties (ECF Nos. 6 and 9), this case is before the 21 undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 22 U.S.C. § 636(c). Pending before the Court are the parties’ briefs on the merits (ECF Nos. 17 and 23 20). 24 The Court reviews the Commissioner’s final decision to determine whether it is: 25 (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a 26 whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is 27 more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521 28 (9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to support 1 a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, 2 including both the evidence that supports and detracts from the Commissioner’s conclusion, must 3 be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones 4 v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The Court may not affirm the Commissioner’s 5 decision simply by isolating a specific quantum of supporting evidence. See Hammock v. 6 Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative 7 findings, or if there is conflicting evidence supporting a particular finding, the finding of the 8 Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 9 Therefore, where the evidence is susceptible to more than one rational interpretation, one of 10 which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v. 11 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal 12 standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th 13 Cir. 1988). 14 For the reasons discussed below, the Commissioner’s final decision is affirmed. 15 16 I. THE DISABILITY EVALUATION PROCESS 17 To achieve uniformity of decisions, the Commissioner employs a five-step 18 sequential evaluation process to determine whether a claimant is disabled. See 20 C.F.R. §§ 19 404.1520 (a)-(f) and 416.920(a)-(f). The sequential evaluation proceeds as follows: 20 Step 1 Determination whether the claimant is engaged in substantial gainful activity; if so, the claimant is presumed 21 not disabled and the claim is denied; 22 Step 2 If the claimant is not engaged in substantial gainful activity, determination whether the claimant has a severe 23 impairment; if not, the claimant is presumed not disabled and the claim is denied; 24 Step 3 If the claimant has one or more severe impairments, 25 determination whether any such severe impairment meets or medically equals an impairment listed in the regulations; 26 if the claimant has such an impairment, the claimant is presumed disabled and the claim is granted; 27 28 / / / 1 Step 4 If the claimant’s impairment is not listed in the regulations, determination whether the impairment prevents the 2 claimant from performing past work in light of the claimant’s residual functional capacity; if not, the claimant 3 is presumed not disabled and the claim is denied; 4 Step 5 If the impairment prevents the claimant from performing past work, determination whether, in light of the claimant’s 5 residual functional capacity, the claimant can engage in other types of substantial gainful work that exist in the 6 national economy; if so, the claimant is not disabled and the claim is denied. 7 See 20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f). 8 9 To qualify for benefits, the claimant must establish the inability to engage in 10 substantial gainful activity due to a medically determinable physical or mental impairment which 11 has lasted, or can be expected to last, a continuous period of not less than 12 months. See 42 12 U.S.C. § 1382c(a)(3)(A). The claimant must provide evidence of a physical or mental 13 impairment of such severity the claimant is unable to engage in previous work and cannot, 14 considering the claimant’s age, education, and work experience, engage in any other kind of 15 substantial gainful work which exists in the national economy. See Quang Van Han v. Bower, 16 882 F.2d 1453, 1456 (9th Cir. 1989). The claimant has the initial burden of proving the existence 17 of a disability. See Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). 18 The claimant establishes a prima facie case by showing that a physical or mental 19 impairment prevents the claimant from engaging in previous work. See Gallant v. Heckler, 753 20 F.2d 1450, 1452 (9th Cir. 1984); 20 C.F.R. §§ 404.1520(f) and 416.920(f). If the claimant 21 establishes a prima facie case, the burden then shifts to the Commissioner to show the claimant 22 can perform other work existing in the national economy. See Burkhart v. Bowen, 856 F.2d 23 1335, 1340 (9th Cir. 1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); Hammock 24 v. Bowen, 867 F.2d 1209, 1212-1213 (9th Cir. 1989). 25 / / / 26 / / / 27 / / / 28 / / / 1 II. THE COMMISSIONER’S FINDINGS 2 Plaintiff applied for social security benefits on February 25, 2014. See CAR 15.1 3 In the application, plaintiff claims disability began on April 1, 2000. See id. Plaintiff’s claim was 4 initially denied. Following denial of reconsideration, plaintiff requested an administrative 5 hearing, which was held on December 15, 2016, before Administrative Law Judge (ALJ) Sheila 6 Walters. In a March 22, 2017, decision, the ALJ concluded plaintiff is not disabled based on the 7 following relevant findings: 8 1. The claimant has the following severe impairment(s): multiple sclerosis with non-active plaque lesions in cervical and thoracic 9 spine, degenerative disc disease lumbar spine, hypertension, mood disorder, and borderline intellectual functioning; 10 2. The claimant does not have an impairment or combination of 11 impairments that meets or medically equals an impairment listed in the regulations; 12 3. The claimant has the following residual functional capacity: less 13 than the full range of light work; the claimant is able to lift and carry ten pounds frequently and twenty pounds occasionally, sit for 14 about six hours and stand and/or walk for about six hours of an eight-hour workday; she is precluded from climbing ladders, ropes, 15 or scaffolds, and is limited to occasional climbing ramps and stairs; the claimant is precluded from working around unprotected heights 16 and hazardous machinery; she is precluded from work requiring her to walk on uneven terrain; the claimant is limited to occasional 17 balancing, stooping, kneeling, crouching, and crawling; she is to avoid concentrated exposure to extreme heat and sunlight and 18 should avoid even moderate exposure to extreme cold; the claimant is able to perform simple repetitive tasks; 19 4. Considering the claimant’s age, education, work experience, 20 residual functional capacity, and vocational expert testimony, there are jobs that exist in significant numbers in the national economy 21 that the claimant can perform. 22 See id. at 17-28. 23 After the Appeals Council declined review on November 7, 2017, this appeal followed. 24 / / / 25 / / / 26 / / / 27 1 Citations are the to the Certified Administrative Record (CAR) lodged on January 28 1 III. DISCUSSION 2 In her brief, plaintiff argues: (1) the ALJ improperly rejected the opinions of her 3 treating physicians, Dr. Lorenzo Aguilar and Dr. Nang Htun, consultative psychological 4 examiner, Dr. J. Zhang, and consultative physical examiners, Dr. Robert Tang and Dr. Samuel 5 Rush; (2) the ALJ improperly rejected her statements and testimony as not credible; (3) the ALJ 6 improperly rejected lay witness evidence from plaintiff’s friends, Connie Martinez and Mary 7 Arroyo; and (4) the ALJ’s vocational findings at Step 5 are not supported by substantial evidence. 8 A. Medical Opinions 9 “The ALJ must consider all medical opinion evidence.” Tommasetti v. Astrue, 10 533 F.3d 1035, 1041 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527(b)). The ALJ errs by not 11 explicitly rejecting a medical opinion. See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 12 2014). The ALJ also errs by failing to set forth sufficient reasons for crediting one medical 13 opinion over another. See id. 14 Under the regulations, only “licensed physicians and certain qualified specialists” 15 are considered acceptable medical sources. 20 C.F.R. § 404.1513(a); see also Molina v. Astrue, 16 674 F.3d 1104, 1111 (9th Cir. 2012). Where the acceptable medical source opinion is based on 17 an examination, the “. . . physician’s opinion alone constitutes substantial evidence, because it 18 rests on his own independent examination of the claimant.” Tonapetyan v. Halter, 242 F.3d 1144, 19 1149 (9th Cir. 2001). The opinions of non-examining professionals may also constitute 20 substantial evidence when the opinions are consistent with independent clinical findings or other 21 evidence in the record. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Social 22 workers are not considered an acceptable medical source. See Turner v. Comm’r of Soc. Sec. 23 Admin., 613 F.3d 1217, 1223-24 (9th Cir. 2010). Nurse practitioners and physician assistants 24 also are not acceptable medical sources. See Dale v. Colvin, 823 F.3d 941, 943 (9th Cir. 2016). 25 Opinions from “other sources” such as nurse practitioners, physician assistants, and social 26 workers may be discounted provided the ALJ provides reasons germane to each source for doing 27 so. See Popa v. Berryhill, 872 F.3d 901, 906 (9th Cir. 2017), but see Revels v. Berryhill, 874 28 F.3d 648, 655 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527(f)(1) and describing circumstance 1 when opinions from “other sources” may be considered acceptable medical opinions). 2 The weight given to medical opinions depends in part on whether they are 3 proffered by treating, examining, or non-examining professionals. See Lester v. Chater, 81 F.3d 4 821, 830-31 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating 5 professional, who has a greater opportunity to know and observe the patient as an individual, than 6 the opinion of a non-treating professional. See id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th 7 Cir. 1996); Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). The least weight is given to the 8 opinion of a non-examining professional. See Pitzer v. Sullivan, 908 F.2d 502, 506 & n.4 (9th 9 Cir. 1990). 10 In addition to considering its source, to evaluate whether the Commissioner 11 properly rejected a medical opinion the court considers whether: (1) contradictory opinions are in 12 the record; and (2) clinical findings support the opinions. The Commissioner may reject an 13 uncontradicted opinion of a treating or examining medical professional only for “clear and 14 convincing” reasons supported by substantial evidence in the record. See Lester, 81 F.3d at 831. 15 While a treating professional’s opinion generally is accorded superior weight, if it is contradicted 16 by an examining professional’s opinion which is supported by different independent clinical 17 findings, the Commissioner may resolve the conflict. See Andrews v. Shalala, 53 F.3d 1035, 18 1041 (9th Cir. 1995). 19 A contradicted opinion of a treating or examining professional may be rejected 20 only for “specific and legitimate” reasons supported by substantial evidence. See Lester, 81 F.3d 21 at 830. This test is met if the Commissioner sets out a detailed and thorough summary of the 22 facts and conflicting clinical evidence, states her interpretation of the evidence, and makes a 23 finding. See Magallanes v. Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989). Absent specific and 24 legitimate reasons, the Commissioner must defer to the opinion of a treating or examining 25 professional. See Lester, 81 F.3d at 830-31. The opinion of a non-examining professional, 26 without other evidence, is insufficient to reject the opinion of a treating or examining 27 professional. See id. at 831. In any event, the Commissioner need not give weight to any 28 conclusory opinion supported by minimal clinical findings. See Meanel v. Apfel, 172 F.3d 1111, 1 1113 (9th Cir. 1999) (rejecting treating physician’s conclusory, minimally supported opinion); see 2 also Magallanes, 881 F.2d at 751. 3 At Step 4, the ALJ evaluated the medical opinion evidence of record. See CAR 4 24-26. Specifically, the ALJ discussed the following evidence: 5 Exhibits 1A, 2A, 4A Summary reports provided by agency reviewing physicians. See CAR 26. 6 Exhibit 4F Medical source statement dated February 19, 2014, 7 provided by treating physician, Dr. Lorenzo Aguilar. See CAR 25. 8 Exhibit 5F Report of May 8, 2014, consultative psychological 9 examination performed by Dr. J. Zhang. See CAR 26. 10 Exhibit 6F Report of a May 14, 2014, consultative internal medicine examination performed by Dr. Robert Tang. 11 See CAR 24. 12 Exhibit 7F Report of a January 23, 2015, consultative internal medicine examination performed by Dr. Samuel Rush. 13 See CAR 24. 14 Exhibit 13F Medical Source Statement dated November 15, 2016, provided by treating physician, Dr. Nang Htun. 15 See CAR 25. 16 Exhibit 14F Medical source statement dated November 11, 2016. See CAR 25. 17 18 Plaintiff contends the ALJ erred with respect to his analysis of the opinions offered by Drs. 19 Aguilar (Exhibit 4F), Zhang (Exhibit 5F), Tang (Exhibit 6F), Rush (Exhibit 7F), and Htun 20 (Exhibit 13F).2 21 1. Dr. Aguilar 22 Regarding Dr. Aguilar, a treating source, the ALJ stated: 23 . . .The doctor states that the claimant could rarely lift or carry 10 pounds, could stand or walk less than one hour, and sit for six hours. She did not 24 require a cane or other assistive device. The claimant needed to elevate her legs for 20% of the workday. She could never hold her head up and 25 rarely look up and down. She needed to walk around every hour for about five minute[s], and needed six to eight unscheduled rest breaks for about 26 10 minutes during the workday. The claimant could never climb ladders 27 2 Plaintiff makes no argument regarding the ALJ’s analysis of the reviewing 28 doctors’ reports at Exhibits 1A, 2A, and 4A, or the November 11, 2017, medical source 1 and stairs, and rarely twist, stoop, or crouch. The claimant would likely be absent more than four days a month [Exhibit 4F]. The undersigned gives 2 this opinion little weight. The treatment record shows few examinations by this doctor, and the limitations are not supported by objective medical 3 findings or clinical observations. 4 CAR 25. 5 Plaintiff contends: 6 The ALJ gave little weight to Dr. Aguilar’s opinion, asserting “The treatment record shows few examinations by this doctor, and the 7 limitations are not supported by objective medical findings or clinical observations.” (Tr. 25.) Contrary to the ALJ’s assertions, Dr. Aguilar’s 8 treatment records do show diagnoses including multiple sclerosis, depression with anxiety, paresthesias/skin disturbance, and disturbances of 9 vision. (Tr. 418.) Dr. Aguilar’s medical source statement indicates he began treating Ramos in July 2010 and saw her every 6 months. (Tr. 430.) 10 This frequency of treatment gave Dr. Aguilar far greater contact with Ramos and a better opportunity to observe her longitudinal condition than 11 either of the physical consultative examiners or the non-examining state agency reviewing doctors. . . .The ALJ failed to provide clear and 12 convincing or even specific and legitimate reasons for discounting this treating doctor’s opinion, which if credited establishes disability. 13 ECF No. 17, pg. 14. 14 15 In response, defendant argues: 16 The ALJ accorded little weight to the opinion of Dr. Aguilar, explaining that the record showed few examinations by Dr. Aguilar, and 17 the limitations in his opinion were not supported by objective medical findings or clinical observations (AR 25). Likewise, the ALJ accorded 18 little weight to the opinion of primary care practitioner Dr. Htun, explaining that examination and treatment records did not support the 19 limitations opined, as almost all examination findings were normal and showed that Plaintiff was stable on medications (AR 25). Moreover, the 20 ALJ noted that there was little objective evidence to show that Plaintiff actually had a stroke, as reported by Dr. Htun (AR 25, 76, 137 (“no 21 abnormalities on imaging studies to support the presence of a stroke”), 451 (the “possible” stroke was “not well documented”), 488 and 492 (“stroke 22 work up was negative”), 701 and 708 (claimant was referred for “stroke like symptoms”). 23 Plaintiff first argues that the ALJ provided insufficient reasons for discounting Dr. Aguilar’s opinion, contending that as a treating 24 physician,5 Dr. Aguilar provided frequent treatment and had far greater contact with Plaintiff and more opportunity to observe her longitudinal 25 condition than either of the consultative examiners (PB 9). Plaintiff’s assertion about the longitudinal relationship between Dr. Aguilar and 26 Plaintiff finds no support in the record, nor does Plaintiff’s argument that the ALJ erred in giving the opinion little weight. 27 28 / / / 1 As a preliminary matter, the regulations prohibit giving controlling weight to a treating source’s opinion unless the opinion is “well-supported 2 and not inconsistent with other substantial evidence.” See 20 C.F.R. § 416.927(c)(3). Dr. Aguilar’s opinion is neither. Moreover, contrary to 3 Plaintiff’s assertion, the record does not show that Dr. Aguilar had any, let alone frequent contact with Plaintiff during the relevant period of 4 consideration. When she went to the hospital in May 2013, Plaintiff acknowledged that she had not seen Dr. Aguilar in six months (AR 510). 5 While hospitalized, Plaintiff was instructed to follow up with Dr. Aguilar (AR 508). The record shows that Plaintiff met with Dr. Aguilar in June 6 2013 for an EEG study, which was normal (AR 417-18). Aside from this single treatment record that predates the relevant period of consideration, 7 the record is devoid of any evidence documenting subsequent treatment with Dr. Aguilar, with no treatment after she filed for SSI in 2014. 8 Plaintiff counters that “contrary to the ALJ’s assertions,” Dr. Aguilar’s treatment records “show diagnoses including multiple sclerosis, 9 depression with anxiety, paresthesias/skin disturbance, and disturbances of vision” (PB 9). Although Plaintiff’s previous diagnoses were listed on the 10 June 2013 treatment record, there are no examination findings other than the normal EEG results (417-18). Nor does the single treatment record 11 document any complaints or show any basis for the limitations in the opinion (AR 417-18). For example, Dr. Aguilar opined that Plaintiff could 12 never hold her head in a static position, rarely look up or down, and occasionally turn her head to the right or left, which is curious, given 13 Plaintiff’s ability to drive without restriction (AR 432). Plaintiff’s contention that treatment records support the opinion fails. 14 ECF No. 20, pgs. 24-25. 15 16 The Court’s analysis begins with a review of Dr. Aguilar’s records. See CAR 415- 17 18 (Exhibit 1F), 419-24 (Exhibit 2F), and 430-33 (Exhibit 4F). Exhibit 1F consists of a progress 18 notes following a June 18, 2013, office visit. See id. at 415-18. Plaintiff was seen at the time for 19 an EEG study. See id. Dr. Aguilar noted: “This is a normal aware and sleep EEG.” Id. at 417. 20 Dr. Aguilar concluded that “no other neurologic workup needed for now.” Id. at 418. Exhibit 2F 21 is a duplicate record. See id. at 419-24. 22 Exhibit 4F is a medical source statement completed by Dr. Aguilar on February 23 19, 2014, containing the doctor’s opinions in this case. See id. at 430-33. The document is a 24 check-the-box style form. See id. Dr. Aguilar noted little by way of objective clinical findings to 25 support his opinions. See id. When asked to identify supporting clinical findings and objective 26 signs, Dr. Aguilar noted: “Relapsing form of multiple sclerosis.” Id. at 430. When asked to 27 describe plaintiff’s treatment and response, including any side effects of medication, Dr. Aguilar 28 noted: “Advised to continue medications for condition of depression and pain.” Id. 1 On this record, the Court finds the ALJ properly considered Dr. Aguilar’s 2 opinions. As defendant and the ALJ note, the doctor’s opinions are not supported by any 3 longitudinal treatment history. The medical source statement contains no reference to objective 4 findings to support Dr. Aguilar’s opined extreme limitations. To the extent Dr. Aguilar had the 5 benefit of a treatment relationship with plaintiff, the Court would expect extensive treatment 6 records outlining objective findings over time. The record is this case is devoid of such evidence. 7 The record before the Court contains very little by way of treatment records and Dr. Aguilar cites 8 no clinical findings in support of his medical source statement. For these reasons, the Court finds 9 that the ALJ’s decision to give Dr. Aguilar’s opinions little weight is both supported by 10 substantial evidence and based on a correct application of the law. 11 2. Dr. Zhang 12 Regarding consultative psychological examiner, Dr. Zhang, the ALJ stated: 13 . . .The examining doctor tested the claimant, and she scored a 67 on a Full-Scale IQ test. The doctor diagnosed mood disorder and borderline 14 intellectual function. A GAF score of 63 was assigned, typical of individuals who have mild limitation or some difficulty in social and 15 occupational functioning, but generally functioning pretty well. The doctor stated that the claimant had moderate limitation in the ability to 16 maintain consistent attendance and perform routine work duties. However, she had no limitation in the ability to handle simple one or two- 17 step work instructions, and only mild limitation in the ability to handle detailed and complex tasks. The claimant had only mild limitation in the 18 ability to work around others [Exhibit 5F]. The undersigned gives substantial weight to the opinion of the State agency consultative 19 examiner, except that after consideration of all the medical evidence and interpreting medical evidence in light most favorable to the claimant, she 20 should be limited to work involving simple tasks. The claimant has borderline intellectual functioning and the doctor stated she had moderate 21 limitation in the ability to maintain concentration, persistence, and pace, which would reasonably limit an individual’s ability to perform detailed 22 and complex tasks, requiring focus and concentration. 23 CAR 26. 24 Plaintiff essentially argues the ALJ impermissibly cherry-picked from Dr. Zhang’s 25 opinions while purporting to give all of them “substantial weight.” According to plaintiff: 26 . . . The ALJ purported to give substantial weight to Dr. Zhang’s opinion, asserting she was accounting for the moderate limitation in 27 concentration, persistence, and pace by including in the RFC finding a limitation to simple tasks. (Tr. 26.) However, the ALJ failed to account for 28 the moderate limitation in maintaining consistent attendance and 1 performing routine work duties. Ramos submits that since the ALJ accounted for the moderate limitation in maintaining concentration, 2 persistence, and pace in the RFC finding, then the ALJ also should have accounted for the moderate limitation in maintaining consistent attendance 3 and performing routine work duties in the RFC finding. The ALJ gave no reasons to reject this aspect of Dr. Zhang’s opinion. . . . The ALJ erred in 4 including some of the moderate limitations Dr. Zhang assessed in the RFC finding but omitting others without providing an explanation. When 5 properly considered and presented to the VE, the moderate limitation Dr. Zhang assessed in maintaining consistent attendance would appear to 6 establish disability. 7 ECF No. 17, pg. 15. 8 Plaintiff’s argument is unpersuasive for the simple reason that the ALJ accounted 9 for moderate limitations in maintaining concentration, persistence, and pace in concluding that 10 plaintiff should be limited to simple tasks. As the ALJ noted, plaintiff’s moderate limitations in 11 concentration, persistence, and pace adversely affect her ability to perform tasks requiring focus. 12 See CAR 26. Where plaintiff sees the ALJ rejecting Dr. Zhang’s opinion, the record reflects that 13 the ALJ actually accepted the doctor’s opinion that plaintiff has moderate impairments with 14 respect to concentration, persistence, and pace. 15 3. Drs. Tang and Rush 16 As to opinions rendered by consultative internal medicine examiner, Dr. Tang, the 17 ALJ stated: 18 . . .The examining doctor diagnosed MS and hypertension with no end organ disease. On examination, the claimant had good range of motion, 19 5/5 motor strength and muscle bulk and tone, in all four extremities and grips, and straight leg raise test was negative. Her gait was normal and 20 she could tandem walk, but the doctor stated that she appeared deconditioned or had some MS issues with tandem walk. Otherwise, all 21 tests were within normal expectation. The doctor stated that the claimant could lift and carry 20 pounds occasionally, 10 pounds frequently, stand 22 and walk for six hours, and sit without limitation. She could occasionally climb, balance, stoop, and frequently crouch and crawl. The claimant 23 should avoid working at heights or around heavy machinery [Exhibit 6F]. The undersigned gives considerable weight to this opinion, as it was based 24 on a thorough examination and evaluation. However, additional limitation in climbing and other postural movements are reasonable as stated in the 25 above residual functional capacity findings, given the medical evidence as a whole and subsequent evaluations and opinions. 26 CAR 24. 27 28 / / / 1 Regarding consultative examiner, Dr. Rush, the ALJ stated: 2 . . .The doctor diagnosed MS, situational depression, and possible recent stroke by report but “not well documented.” The doctor stated that the 3 claimant could perform light work, stand and walk slowly for six hours, and should avoid walking on uneven terrain. She should not climb 4 ladders, but could do simple grasp, push, pull, and gross manipulation [Exhibit 7F]. The undersigned accepts the suggested walking and 5 climbing limitations, and incorporates those limitations in the above residual functional capacity. Avoidance of concentrated exposure to 6 extreme heat and sunlight and even moderate exposure to cold are precautionary to avoid any flare in MS symptoms. 7 CAR 24. 8 9 Without citation to any authority, plaintiff contends the ALJ erred in relying on the 10 opinions of Drs. Tang and Rush because “. . .these doctors examined Ramos one time and did not 11 have the same longitudinal perspective regarding her conditions that her treating doctors, Dr. 12 Aguilar and Dr. Htun, did have.” ECF No. 17, pg. 16. Plaintiff’s argument has no merit. The 13 opinions of an examining professional are considered substantial evidence. See Tonapetyan, 224 14 F.3d at 1149. 15 4. Dr. Htun 16 As to Dr. Htun, a treating source, the ALJ stated: 17 . . .The doctor listed the claimant’s impairments as MS, stroke, hypertension, and memory impairment. In assessing the claimant’s 18 functional capacity, the doctor stated that the claimant could lift and carry 20 pounds rarely, 10 pounds less than frequently, stand walk, and sit one 19 hour each during a normal eight-hour workday. The claimant could perform manipulative activities 20% of a workday, and must avoid 20 concentrated exposure to wetness, humidity, noise, fumes, odors, dusts, gases, poor ventilation, hazards, and must avoid moderate exposure to 21 extreme cold and heat. The doctor stated that the claimant had bilateral hand grip with reduced strength 4/5, paresthesia, and adverse side effects 22 of medication, along with muscle weakness and chronic fatigue. The claimant required five or six unscheduled rest breaks per day for at least 23 30 minutes. She would likely be absent four days a month. Emotional factors contributed to the severity of symptoms and functional limitations, 24 and her symptoms would frequently interfere with attention and concentration needed for even simple work tasks [Exhibit 13F]. The 25 undersigned gives little weight to this opinion even though it is from a treating doctor. The examination and treatment records do not support the 26 limitations suggested, as almost all examination findings were normal and the claimant has remained stable on medication. Also, there is little 27 objective evidence to show that the claimant actually had a stroke. 28 CAR 25. 1 According to plaintiff: “The ALJ did not provide specific reasons or specific 2 citations to the record to support her rejection of any specific aspect of Dr. Htun’s opinion.” ECF 3 No. 17, pg. 16. Plaintiff adds: 4 . . . The ALJ erred in failing to cite specific evidence to support her rejection of any of the specific limitations Dr. Htun described, stating only 5 in general terms that the entirety of the treatment notes and objective records (there are over 1000 pages of medical records here) were 6 inconsistent. Such a generalization does not allow this court to properly review the ALJ’s reasoning. When Dr. Htun’s opinion is properly 7 considered, it establishes that Ramos is disabled. 8 Id. at 17. 9 Plaintiff does not cite to any portions of Dr. Htun’s treatment records which contradict the ALJ’s 10 conclusion or support her own. 11 In opposition, defendant argues: 12 Plaintiff next contends that the ALJ did not provide specific reasons to reject Dr. Htun’s opinion (PB 11-12). Although treating 13 physician opinions are generally accorded greater weight in the disability determination process, see Sprague v. Bowen, 812 F.2d 1226, 1230 (9th 14 Cir. 1987), as discussed above, they do not automatically control. An ALJ may accord a treating physician’s opinion controlling weight only when it 15 is well-supported by medically acceptable clinical and laboratory diagnostic techniques and not inconsistent with other substantial evidence 16 of record. 20 C.F.R. § 416.927(c)(2). The ALJ acknowledged Dr. Htun’s status as a treating physician, but accorded his opinion little weight 17 because it was not supported by examination and treatment records, and was contrary to objective evidence (AR 25, 1423-26). These are 18 appropriate reasons for discounting a treating physician’s opinion. See Batson v. Comm’r, 359 F.3d 1190, 1195 (9th Cir. 2005) (“an ALJ may 19 discredit treating physicians’ opinions that are conclusory, brief, and unsupported by the record as a whole . . . or by objective medical 20 findings”); Connett v. Barnhart, 340 F.,3d 871, 875 (9th Cir. 2003) (treating physician’s opinion properly rejected where physician’s records 21 “provide no basis for the functional restrictions” opined therein). 22 ECF No. 20, pg. 26. 23 Notwithstanding plaintiff’s concern, the Court has been able to review the ALJ’s 24 reasoning in light of the available medical record which shows, as the ALJ noted, “almost all 25 examination findings were normal and the claimant has remained stable on medication.” CAR 26 25. On the medical source statement completed by Dr. Htun in November 2016, see CAR 1423- 27 26 (Exhibit 13F), the doctor vaguely references mild cognitive decline, “sensory impairment,” 28 and reduced strength in support of his conclusions. Despite plaintiff’s assertion that Dr. Htun’s 1 opinions are supported by an extensive treatment history, neither plaintiff nor Dr. Htun cite to any 2 specific clinical objective findings which would support the extreme limitations opined by the 3 doctor. The ALJ’s reference to a lack of clinical findings is both supported by the record and 4 based on proper law. 5 B. Credibility 6 The Commissioner determines whether a disability applicant is credible, and the 7 court defers to the Commissioner’s discretion if the Commissioner used the proper process and 8 provided proper reasons. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996). An explicit 9 credibility finding must be supported by specific, cogent reasons. See Rashad v. Sullivan, 903 10 F.2d 1229, 1231 (9th Cir. 1990). General findings are insufficient. See Lester v. Chater, 81 F.3d 11 821, 834 (9th Cir. 1995). Rather, the Commissioner must identify what testimony is not credible 12 and what evidence undermines the testimony. See id. Moreover, unless there is affirmative 13 evidence in the record of malingering, the Commissioner’s reasons for rejecting testimony as not 14 credible must be “clear and convincing.” See id.; see also Carmickle v. Commissioner, 533 F.3d 15 1155, 1160 (9th Cir. 2008) (citing Lingenfelter v Astrue, 504 F.3d 1028, 1936 (9th Cir. 2007), 16 and Gregor v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006)). 17 If there is objective medical evidence of an underlying impairment, the 18 Commissioner may not discredit a claimant’s testimony as to the severity of symptoms merely 19 because they are unsupported by objective medical evidence. See Bunnell v. Sullivan, 947 F.2d 20 341, 347-48 (9th Cir. 1991) (en banc). As the Ninth Circuit explained in Smolen v. Chater: 21 The claimant need not produce objective medical evidence of the [symptom] itself, or the severity thereof. Nor must the claimant produce 22 objective medical evidence of the causal relationship between the medically determinable impairment and the symptom. By requiring that 23 the medical impairment “could reasonably be expected to produce” pain or another symptom, the Cotton test requires only that the causal relationship 24 be a reasonable inference, not a medically proven phenomenon. 25 80 F.3d 1273, 1282 (9th Cir. 1996) (referring to the test established in Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986)). 26 27 / / / 28 / / / 1 The Commissioner may, however, consider the nature of the symptoms alleged, 2 including aggravating factors, medication, treatment, and functional restrictions. See Bunnell, 3 947 F.2d at 345-47. In weighing credibility, the Commissioner may also consider: (1) the 4 claimant’s reputation for truthfulness, prior inconsistent statements, or other inconsistent 5 testimony; (2) unexplained or inadequately explained failure to seek treatment or to follow a 6 prescribed course of treatment; (3) the claimant’s daily activities; (4) work records; and (5) 7 physician and third-party testimony about the nature, severity, and effect of symptoms. See 8 Smolen, 80 F.3d at 1284 (citations omitted). It is also appropriate to consider whether the 9 claimant cooperated during physical examinations or provided conflicting statements concerning 10 drug and/or alcohol use. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). If the 11 claimant testifies as to symptoms greater than would normally be produced by a given 12 impairment, the ALJ may disbelieve that testimony provided specific findings are made. See 13 Carmickle, 533 F.3d at 1161 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). 14 At Step 4, the ALJ engaged in a detailed analysis of plaintiff’s statements and 15 testimony. See CAR 21-24. The ALJ began by summarizing this evidence as follows: 16 The claimant was born February 18, 1967, and has a high school education. She drives her daughter to school three times a week, and 17 drove herself to the hearing. The claimant testified that she does some household chores, including laundry, but gets help from her spouse and 18 daughter. She cooks about once a week. The claimant stated her pain and other symptoms also depend on the weather. She stated that she is unable 19 to work because taking care of herself is a job. She would be unable to keep a work schedule, and writes numbers backward. She has pain in her 20 back, limbs, and legs. The claimant testified that she has multiple sclerosis (MS) and MS related arthritis. MS was confirmed by a grain MR 21 and in 2013, the claimant may have had a stroke. The claimant stated she was in a motor vehicle accident in 2013, all of which has increased her 22 symptoms. The claimant stated she also has high blood pressure, chronic sinus infections, fatigue, heartburn caused by a hernia, and dizziness. She 23 takes multiple medications, which do not adequately control her symptoms. The claimant estimated that she is able to walk about 10 24 minutes, for two blocks, sit about five minutes, and lift about five pounds. She is left handed. 25 The claimant testified that she has carpal tunnel syndrome, problems with 26 depression, memory, and problems with her vision. She gets along with her family, friends, and neighbors, but does not like to be around more 27 than about five people at a time. 28 / / / 1 In addition to the claimant’s testimony, the undersigned has considered all other statements submitted in support of the claimant’s application. 2 In a Function Report dated April 9, 2014, the claimant described being 3 very limited in any movement and physical functioning, with pain and numbness throughout her body. Medications caused her to have an upset 4 stomach and poor appetite. The claimant stated she spent a lot of time lying down. She did not drive at night, as she could not tolerate lights, so 5 she drove only when necessary. The claimant stated she had difficulty with memory, concentration, and completing tasks [Exhibit 2E]. 6 * * * 7 A Disability Report Appeals was completed September 16, 2014. The 8 claimant stated her right hand locked in a bent position, and she needed to use her left hand to peel her fingers back in an upright position to have full 9 hand use. Her hands were very painful, and osteoporosis was worse. The claimant was taking hydrocodone and Norco, three or four per day. Pain 10 made breathing difficult, especially arthritis in her hands and joints. It was hard for her to comb her hair, get dressed, and grab anything. She could 11 only use her thumbs and adjacent fingers. Her left hand and side were most affected by multiple sclerosis symptoms [Exhibit 8E]. 12 Another Function Report was completed November 24, 2014, largely 13 duplicating the statements in the earlier function report [Exhibit 10E]. . . . 14 A final Disability Report Appeals was completed May 15, 2015. The claimant stated that she had a stroke on Christmas Eve. She moved much 15 slower and was barely get [sic] to do things herself. She used a walker to [] around her home, especially in the mornings. Depression was worse 16 and she was in a motor vehicle accident on March 15, 2015. She sustained neck and back injuries. The claimant stated she had spinal stenosis and 17 required high doses of aspirin and pain medications. She needed help with her personal hygiene and could not cook meals. She had problems with 18 both hands, especially her left hand, and would drop objects. . . [Exhibit 15E]. 19 CAR 21-22. 20 21 The ALJ found plaintiff’s testimony and statements, as well as the lay witness 22 statements discussed below, not fully credible because they are “not entirely consistent with the 23 medical evidence and other evidence in the record for the reasons explained in this decision.” Id. 24 at 22. The ALJ then stated: 25 . . .As to physical limitations, the claimant is able to move about with relative ease, do household chores, occasionally cook and drive an 26 automobile, and the medical treatment record along with clinical findings by the State agency consultative examiners shows that the claimant is 27 much less limited in her ability to function than she alleges. Medications have been effective in controlling her symptoms. In January 2014, the 28 claimant was taking Gabapentin for pain, but stopped it because she 1 thought it made her gain weight. She was prescribed Vicodin which controlled symptoms and no negative side effects were reported [Exhibit 2 3F, 10F]. 3 The claimant was diagnosed with multiple sclerosis, with detected non- active plaque lesions in the cervical and thoracic spine [Exhibit 11F240]. 4 The claimant was admitted to a hospital on May 2, 2013, complaining of left side paresthesia, with visual deficit of “blurred vision.” Her 5 symptoms started two weeks earlier when the weather started changing. A discharge diagnosis dated May 4, 2013, stated that there was the presence 6 of interval tiny lesion extension in a subcortical lesion and that the claimant reported vision deficit. She was treated with IV steroids and 7 improved [Exhibit 11F2]. An MRI obtained on May 4, 2013, confirmed a tiny non-active MS plaque lesion involving the posterior pontomedullary 8 junction, and suspected MS plaque lesion, non-active at the cervical medullary junction. The claimant was prescribed Gilenya 0.5 mg daily 9 and advised to void increased internal and ambient body heat, and exhaustion [Exhibit 11F3]. An EEG study obtained in June 2013 was 10 normal, with no significant epileptogenic focus or electrographic seizure detected [Exhibit 1F]. 11 The claimant experienced a flare of MS symptoms and was hospitalized 12 from December 24, 2014, to December 28, 2014. She complained primarily of right-sided weakness and slurred speech. A brain MRI 13 showed multiple infarcts in different areas of the pons and cerebrum, but an echocardiogram was negative for any course of emboli [Exhibit 14 11F186]. The medical record has very little evidence of evaluation, workup, or objective testing to confirm that the claimant had a stroke as 15 alleged, and she had not received ongoing treatment for any brain injury or accident. The discharge summary stated there was no demyelinating foci, 16 and that the claimant had presumed non-active MS plaque lesions at C3- C4, C7-T1, and stable presumed MS plaques at the cervical medullary and 17 pontomedullary junctions [Exhibit 11F258]. After discharge, the claimant had significant physical therapy. At an examination on January 9, 2015, 18 the findings were all normal, with no edema or other problems. Strength was 5/5 bilaterally in both upper and lower extremities, and the claimant 19 had an even gait [Exhibit 8F3]. At a more recent examination on March 30, 2016, the claimant was found to be stable on medication. The 20 treatment record states that the claimant denied any problems with MS. A prior problem with balance was improved and stable with the medication 21 Ampyra, and fatigue was improved with Nuvigil [Exhibit 12F81-82]. When examined on May 4, 2016, the claimant demonstrated normal gait 22 and balance [Exhibit 12F107] and again in October 2016, there was no indication of relapse in MS symptoms [Exhibit 12F131, 134]. While the 23 claimant may have some fatigue attributable to MS, her symptoms appear to be stable and controlled with medications. Any functional limitations 24 have been accommodated for in the above residual functional capacity finding. 25 CAR 22-23. 26 27 / / / 28 / / / 1 Regarding plaintiff’s alleged stroke, the ALJ stated that “[t]he record does not 2 show ongoing treatment for this condition or record of symptoms that would indicate this 3 condition has caused any functional limitation.” CAR 24. As to a car accident in March 2015, 4 the ALJ added: 5 The claimant was involved in a motor vehicle accident in March 2015, and complained of neck, rib, and knee pain. She was medically examined, and 6 there were no positive findings, other than some decrease in right knee flexion because of pain and some tenderness along the cervical spine. A 7 brain CT was normal, and x-rays of the cervical, thoracic, and lumbar spine, and right knee were all normal with no indication of fracture of 8 other defect or deformity [Exhibit 12F1-3]. 9 Id. 10 Plaintiff argues the ALJ’s credibility finding is flawed in two ways. First, plaintiff 11 asserts the ALJ improperly relied on her daily activities. Second, plaintiff contends the ALJ 12 failed to link the cited medical evidence to specific testimony or statements found not to be 13 credible. 14 1. Daily Activities 15 Regarding reliance on a claimant’s daily activities to find testimony of disabling 16 pain not credible, the Social Security Act does not require that disability claimants be utterly 17 incapacitated. See Fair v. Bowen, 885 F.2d 597, 602 (9th Cir. 1989). The Ninth Circuit has 18 repeatedly held that the “. . . mere fact that a plaintiff has carried out certain daily activities . . . 19 does not . . .[necessarily] detract from her credibility as to her overall disability.” See Orn v. 20 Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (quoting Vertigan v. Heller, 260 F.3d 1044, 1050 (9th 21 Cir. 2001)); see also Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir. 1986) (observing that a 22 claim of pain-induced disability is not necessarily gainsaid by a capacity to engage in periodic 23 restricted travel); Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (concluding that the 24 claimant was entitled to benefits based on constant leg and back pain despite the claimant’s 25 ability to cook meals and wash dishes); Fair, 885 F.2d at 603 (observing that “many home 26 activities are not easily transferable to what may be the more grueling environment of the 27 workplace, where it might be impossible to periodically rest or take medication”). Daily 28 activities must be such that they show that the claimant is “. . .able to spend a substantial part of 1 his day engaged in pursuits involving the performance of physical functions that are transferable 2 to a work setting.” Fair, 885 F.2d at 603. The ALJ must make specific findings in this regard 3 before relying on daily activities to find a claimant’s pain testimony not credible. See Burch v. 4 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). 5 Citing Garrison v. Colvin, 759 F.3d 995 (9th Cir. 2014), plaintiff contends: 6 Here, Ramos’s medically determinable impairments could reasonably be expected to cause the alleged symptoms, and the ALJ made 7 no finding of malingering based on affirmative evidence thereof, nor does the record support such a finding. Accordingly, at the second step of the 8 credibility analysis, the ALJ was required to make specific, clear, and convincing findings to support her rejection of Ramos’s testimony. Here, 9 the ALJ asserted Ramos’s testimony was less than fully credible because the ALJ asserted the objective medical evidence was inconsistent with the 10 limitations Ramos described. The ALJ asserted Ramos was “able to move about with relative ease, do household chores, occasionally cook and drive 11 an automobile, and the medical treatment record along with clinical findings by the State agency consultative examiners shows that the 12 claimant is much less limited in her ability to function than she alleges. Medications have been effective in controlling her symptoms.” (Tr. 22.) 13 Contrary to the ALJ’s assertions, Ramos’s ability to perform activities of daily living, such as driving, cooking, and doing a few household chores, 14 is not inconsistent with disability or with the limitations Ramos described in her testimony. . . . 15 Here, Ramos explained she has a couple of hours each day when she can do some light chores around the house or cook a meal, but she 16 spends most of the rest of the time lying down because of her fatigue and pain. (Tr. 79-86.) And as discussed above regarding the medical evidence, 17 Ramos also has mental impairments which cause difficulty with concentration and remembering instructions. The activities listed by the 18 ALJ do not show abilities in excess of what Ramos described in her testimony. Ramos freely admits she can do a few activities for an hour or 19 two in a typical day, but this does not show an ability to sustain such activity for a full 8-hour work day or 40-hour work week as required to 20 perform full-time work. 21 ECF No. 17, pgs. 18-19. 22 Defendant argues: 23 Plaintiff . . . argues that the ALJ consistency analysis was flawed because her activities of daily living are not inconsistent with disability or 24 her own testimony (PB 13-14). The ALJ did not state that Plaintiff’s daily activities, standing alone, prove Plaintiff’s ability to sustain full-time work 25 activity. Rather, the ALJ observed that Plaintiff’s activities suggested she was not as limited as she claimed to be (AR 22). 26 ECF No. 20, pg. 20. 27 28 / / / 1 The Court agrees with both parties. Plaintiff is correct that the ALJ’s references to 2 her limited daily activities do not show an ability to engage in sustained work activity. 3 Defendant, however, is also correct that the ALJ did not rely solely on plaintiff’s daily activities 4 to find the entirety of her subjective statements not credible. As defendant notes, the ALJ also 5 relied on inconsistency with the medical evidence (discussed below) as well as evidence that 6 plaintiff’s condition is well-controlled with medication. See CAR 22-23. 7 2. Medical Evidence 8 Citing Brown-Hunter v. Colvin, 806 F.3d 487 (9th Cir. 2015, plaintiff also argues: 9 The ALJ cites the objective medical evidence as inconsistent with Ramos’s testimony, but identifies no specific records contrary to any of 10 Ramos’s specific statements regarding her limitations. . . . Here, the ALJ has not specified which testimony she found not 11 credible and has not provided clear and convincing reasons supported by evidence in the record to support her credibility determination. Medication 12 may have helped control some of Ramos’s pain, but medication has not alleviated her fatigue, and in fact probably contributes to additional fatigue 13 for Ramos. 14 ECF No. 17, pgs. 19-20. 15 Plaintiff’s argument is unconvincing. While the ALJ did not strictly link each item 16 of objective evidence discussed with specific testimony found not to be credible, the ALJ’s 17 decision nonetheless reflects that the ALJ found all of plaintiff’s testimony not credible given the 18 lack of supporting objective evidence as a whole. The ALJ then discussed the objective evidence 19 in detail. The Commissioner must identify which testimony is not credible and the evidence 20 supporting the conclusion. Here, the ALJ found all of plaintiff’s testimony not credible based on 21 the objective evidence. The Court finds the ALJ has met the Commissioner’s burden. Plaintiff’s 22 argument would have more merit had the ALJ accepted some of plaintiff’s testimony and rejected 23 other parts of her testimony. In such a situation, the Court would indeed expect an analysis 24 specific to those portions of the testimony found not to be credible. In this case, however, the 25 ALJ found all of plaintiff’s testimony not credible based on specific items of objective evidence. 26 / / / 27 / / / 28 / / / 1 C. Lay Witness Evidence 2 In determining whether a claimant is disabled, an ALJ generally must consider lay 3 witness testimony concerning a claimant's ability to work. See Dodrill v. Shalala, 12 F.3d 915, 4 919 (9th Cir. 1993); 20 C.F.R. §§ 404.1513(d)(4) & (e), 416.913(d)(4) & (e). Indeed, “lay 5 testimony as to a claimant's symptoms or how an impairment affects ability to work is competent 6 evidence . . . and therefore cannot be disregarded without comment.” See Nguyen v. Chater, 100 7 F.3d 1462, 1467 (9th Cir. 1996). Consequently, “[i]f the ALJ wishes to discount the testimony of 8 lay witnesses, he must give reasons that are germane to each witness.” Dodrill, 12 F.3d at 919. 9 When rejecting third party statements which are similar in nature to the statements of plaintiff, the 10 ALJ may cite the same reasons used by the ALJ in rejecting the plaintiff’s statement. See 11 Valentine v. Commissioner Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (approving 12 rejection of a third-party family member’s testimony, which was similar to the claimant’s, for the 13 same reasons given for rejection of the claimant’s complaints). 14 At Step 4, the ALJ evaluated lay witness evidence provided by plaintiff’s friends, 15 Connie Martinez and Mary Arroyo. See CAR 22. The ALJ stated: 16 Connie Martinez, a friend of the claimant, submitted a Third Party Function [Report] dated April 9, 2014. Ms. Martinez states she saw the 17 claimant weekly for two or three hours, as they did what she described as door-to-door “field services work (ministry).” Ms. Martinez otherwise 18 repeated many of the claimant’s allegations in her Function Report [Exhibit 3E]. 19 * * * 20 . . .A Third Party Function Report was completed November 23, 2014, by 21 Mary Arroyo, a friend of the claimant. Ms. Arroyo repeated statements made in prior function reports [Exhibits 14E, 12E, 13E]. 22 Id. 23 24 As with plaintiff’s subjective statements and testimony, the ALJ rejected the lay witness evidence 25 as “not entirely consistent with the medical evidence and other evidence in the record for the 26 reasons explained in this decision.” Id. 27 / / / 28 / / / 1 Plaintiff argues: “To the extent the ALJ rejected the testimony of the lay witnesses 2 based on the same rationale the ALJ relied on to discount Ramos’s own testimony, the ALJ 3 erred.” CAR 17, pg. 16. According to plaintiff, the ALJ’s underlying credibility determination is 4 flawed and, for this reason, the ALJ may not rely on that analysis to reject the lay witness 5 evidence. This argument is unpersuasive because, for the reasons discussed above, the Court 6 finds no fatal error in the ALJ’s credibility analysis. Consistent with Valentine, the ALJ properly 7 rejected lay witness evidence for the same reasons cited for rejecting plaintiff’s own subjective 8 statements and testimony. 9 D. Vocational Findings 10 At Step 5, the ALJ determined that plaintiff is not disabled because she can 11 perform other jobs that exist in the national economy. See CAR 27. Plaintiff argues the ALJ’s 12 vocational finding is flawed in three ways. First, plaintiff argues she is presumptively disabled 13 under Medical-Vocation Rule 202.12 if she is limited to sedentary work. Second, the residual 14 functional capacity found by the ALJ precludes the ability to perform one of the possible jobs 15 identified by the ALJ, cashier II, and the ALJ failed to elicit vocational expert testimony as to 16 whether other possible jobs, assembler and packing line worker, existed in significant numbers in 17 the national economy. Finally, plaintiff asserts the ALJ relied on vocational expert testimony 18 what was not based on accurate hypothetical questions. 19 1. Medical-Vocational Rule 202.12 20 The Medical-Vocational Guidelines (Grids) provide a uniform conclusion about 21 disability for various combinations of age, education, previous work experience, and residual 22 functional capacity. The Grids allow the Commissioner to streamline the administrative process 23 and encourage uniform treatment of claims based on the number of jobs in the national economy 24 for any given category of residual functioning capacity. See Heckler v. Campbell, 461 U.S. 458, 25 460-62 (1983) (discussing creation and purpose of the Grids). 26 / / / 27 / / / 28 / / / 1 The Commissioner may apply the Grids in lieu of taking the testimony of a 2 vocational expert only when the Grids accurately and completely describe the claimant’s abilities 3 and limitations. See Jones v. Heckler, 760 F.2d 993, 998 (9th Cir. 1985); see also Heckler v. 4 Campbell, 461 U.S. 458, 462 n.5 (1983). Thus, the Commissioner generally may not rely on the 5 Grids if a claimant suffers from non-exertional limitations because the Grids are based on 6 exertional strength factors only.3 See 20 C.F.R., Part 404, Subpart P, Appendix 2, § 200.00(b). 7 “If a claimant has an impairment that limits his or her ability to work without directly affecting 8 his or her strength, the claimant is said to have non-exertional . . . limitations that are not covered 9 by the Grids.” Penny v. Sulliacvan, 2 F.3d 953, 958 (9th Cir. 1993) (citing 20 C.F.R., Part 404, 10 Subpart P, Appendix 2, § 200.00(d), (e)). The Commissioner may, however, rely on the Grids 11 even when a claimant has combined exertional and non-exertional limitations, if non-exertional 12 limitations do not impact the claimant’s exertional capabilities. See Bates v. Sullivan, 894 F.2d 13 1059, 1063 (9th Cir. 1990); Polny v. Bowen, 864 F.2d 661, 663-64 (9th Cir. 1988). 14 Plaintiff’s argument is unpersuasive because it is premised on a limitation to no 15 more than sedentary work. As discussed above, the Court finds the ALJ committed no error with 16 respect to the residual functional capacity finding at Step 4 that plaintiff can perform a limited 17 range of light work. 18 / / / 19 / / / 20 21 3 Exertional capabilities are the primary strength activities of sitting, standing, walking, lifting, carrying, pushing, or pulling and are generally defined in terms of ability to 22 perform sedentary, light, medium, heavy, or very heavy work. See 20 C.F.R., Part 404, Subpart P, Appendix 2, § 200.00(a). “Sedentary work” involves lifting no more than 10 pounds at a time 23 and occasionally lifting or carrying articles like docket files, ledgers, and small tools. See 20 C.F.R. §§ 404.1567(a) and 416.967(a). “Light work” involves lifting no more than 20 pounds at 24 a time with frequent lifting or carrying of objects weighing up to 10 pounds. See 20 C.F.R. §§ 404.1567(b) and 416.967(b). “Medium work” involves lifting no more than 50 pounds at a time 25 with frequent lifting or carrying of objects weighing up to 25 pounds. See 20 C.F.R. §§ 404.1567(c) and 416.967(c). “Heavy work” involves lifting no more than 100 pounds at a time 26 with frequent lifting or carrying of objects weighing up to 50 pounds. See 20 C.F.R. §§ 404.1567(d) and 416.967(d). “Very heavy work” involves lifting objects weighing more than 100 27 pounds at a time with frequent lifting or carrying of objects weighing 50 pounds or more. See 20 C.F.R. §§ 404.1567(e) and 416.967(e). Non-exertional activities include mental, sensory, 28 postural, manipulative, and environmental matters which do not directly affect the primary 1 2. Other Jobs 2 The ALJ elicited vocational expert testimony as to the types of jobs someone with 3 plaintiff’s residual functional capacity could perform. See CAR 27. The vocational expert 4 identified three jobs: cashier II, assembler, and packing line worker. See id. The vocational 5 expert also testified that these jobs existed in significant numbers in the national economy. See 6 id. 7 Plaintiff argues the cashier II job is not a valid representative job because it 8 requires a reasoning level precluded by the residual function capacity determined by the ALJ. 9 According to defendant: 10 . . .Regardless of the skills required of the cashier II position, the occupations of assembler and packing line worker adequately support the 11 ALJ’s step five finding (AR 27). Work exists in the national economy when “there is a significant number of jobs (in one or more occupations)” 12 that an individual with claimant’s physical or mental and vocational qualifications could perform. 20 C.F.R. § 416.966(b). 13 ECF No. 20, pg. 28. 14 15 The Court agrees with defendant. Even if the ALJ erred with respect to the cashier 16 II job, the ALJ properly relied on the vocational expert’s opinion that plaintiff could perform the 17 other identified jobs and that such jobs exist in significant numbers in the national economy. 18 Plaintiff makes no argument as to the other jobs. 19 3. Hypothetical Questions 20 In cases where the Grids are not fully applicable, the ALJ may meet his burden 21 under step five of the sequential analysis by propounding to a vocational expert hypothetical 22 questions based on medical assumptions, supported by substantial evidence, that reflect all the 23 plaintiff’s limitations. See Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995). Specifically, 24 where the Medical-Vocational Guidelines are inapplicable because the plaintiff has sufficient 25 non-exertional limitations, the ALJ is required to obtain vocational expert testimony. See 26 Burkhart v. Bowen, 587 F.2d 1335, 1341 (9th Cir. 1988). 27 / / / 28 / / / 1 Hypothetical questions posed to a vocational expert must set out all the 2 substantial, supported limitations and restrictions of the particular claimant. See Magallanes v. 3 Bowen, 881 F.2d 747, 756 (9th Cir. 1989). If a hypothetical does not reflect all the claimant’s 4 limitations, the expert’s testimony as to jobs in the national economy the claimant can perform 5 has no evidentiary value. See DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991). While 6 the ALJ may pose to the expert a range of hypothetical questions based on alternate 7 interpretations of the evidence, the hypothetical that ultimately serves as the basis for the 8 ALJ’s determination must be supported by substantial evidence in the record as a whole. See 9 Embrey v. Bowen, 849 F.2d 418, 422-23 (9th Cir. 1988). 10 Plaintiff argues: 11 . . . Here, in posing her hypothetical questions to the vocational expert, the ALJ omitted Ramos’s credible allegations and those of the lay 12 witnesses. The ALJ also omitted the limitations assessed by Ramos’s treating doctors, Dr. Aguilar and Dr. Htun, and critical aspects of the 13 limitations assessed by examining doctor, Dr. Zhang, as detailed above. Because the VE’s testimony that Ramos could perform the occupations 14 identified by the ALJ was based on the ALJ’s failure accurately to pose all of Ramos’s limitations, the VE’s testimony that Ramos can perform those 15 occupations has no evidentiary value. The ALJ’s decision is based on evidence which has no evidentiary value, and so decision is not based on 16 substantial evidence. 17 ECF No. 17, pgs. 22-23. 18 Plaintiff’s argument is unconvincing because, as discussed above, the Court finds 19 no error concerning the ALJ’s evaluation of the medical opinion evidence, plaintiff’s own 20 statements and testimony, or the lay witness evidence. 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / wOAoe 6. £00U VEINS OU OR eA NV ee 1 IV. CONCLUSION 2 Based on the foregoing, the Court concludes that the Commissioner’s final 3 | decision is based on substantial evidence and proper legal analysis. Accordingly, IT IS HEREBY 4 | ORDERED that: 5 1. Plaintiff's motion for summary judgment (ECF No. 17) is denied; 6 2. Defendant’s motion for summary judgment (ECF No. 20) is granted; 7 3. The Commissioner’s final decision is affirmed; and 8 4. The Clerk of the Court is directed to enter judgment and close this file. 9 10 11 | Dated: May 29, 2020 Ssvcqo_ 12 DENNIS M. COTA 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 26