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Lao v. Astrue

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 15, 2008

CHAI LAO, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,*FN1 DEFENDANT.

ORDER

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's application for Supplemental Security Income under Title XVI of the Social Security Act ("Act"). For the reasons that follow, plaintiff's motion for summary judgment is denied, and the Commissioner's cross-motion for summary judgment is granted. The Clerk is directed to enter judgment for the Commissioner.

I. BACKGROUND

Plaintiff, born February 23, 1962, initially applied for disability benefits on May 9, 2000, alleging disability since January 9, 1997, due to arthritis, gout, pain in knees, ankles, wrists, knuckles, shoulders, elbows, and back; weakness and dizziness; difficulty concentrating, sleeping, and eating; hearing voices and seeing things; and, anger, depression and anxiety. Administrative Record ("AR") 61, 72, 238. The application was denied initially and upon reconsideration. AR 47-57. As set forth below, plaintiff filed a subsequent application for SSI benefits in 2002, which was denied. Both the initial and subsequent applications have been the subject of litigation for more than eight years.

Plaintiff's first hearing on his initial application was held before administrative law judge ("ALJ") Antonio Acevedo-Torres on February 19, 2002. AR 21-44. Following that hearing, ALJ Acevedo-Torres issued a written decision finding plaintiff not disabled.*fn2 AR 10-25. The Appeals Council denied plaintiff's request for review, and plaintiff appealed the Commissioner's decision to the district court. On February 12, 2004, the assigned magistrate judge recommended granting plaintiff's motion for summary judgment, finding that the ALJ erred in concluding that plaintiff could perform heavy work. AR 334-46. The district judge adopted those findings and recommendations in full, and the case was remanded for further development regarding plaintiff's exertional capacity, and as appropriate, to obtain the testimony of a vocational expert. Id.

In the meantime, plaintiff filed a subsequent application for SSI benefits in June 2002. AR 361-64. That application was also denied initially and on reconsideration. An administrative hearing was held on August 28, 2003, before administrative law judge L. Kalei Fong, who, on November 26, 2003, issued a decision finding that plaintiff was not disabled. AR 618-37, 289-300. On April 28, 2004, following plaintiff's request for review, the Appeals Council vacated that decision and remanded the case back to ALJ Fong for further proceedings. AR 321-23. Specifically, the Appeals Council ordered that the record be developed further with respect to plaintiff's recurrent episodes of gout and related needs for medically-necessary assistive devices. It also ordered further development of the record regarding plaintiff's residual functional capacity, including consideration of his non-exertional limitations. Id. Accordingly, a subsequent hearing was held on November 19, 2004, before ALJ Fong, who on February 22, 2005, again found plaintiff not disabled. AR 260-67, 638-62.

On April 22, 2005, the Appeals Council issued an order remanding the initial application to a new ALJ pursuant to the district court's March 24, 2004, remand order. AR 349-50. The Appeals Council took note of plaintiff's subsequent application, and found that action on it was rendered "duplicate" in light of the order remanding plaintiff's initial claim for another hearing. Id. Accordingly, the Appeals Council ordered the ALJ to associate the claim files and to issue a new decision regarding the consolidated claims. AR 349-50. The Appeals Council specifically directed the new ALJ to obtain additional evidence concerning plaintiff's impairments, reevaluate his RFC, and if warranted, obtain evidence from a vocational expert. Id.

On May 23, 2006, following a hearing before ALJ Mark C. Ramsey, plaintiff was again found not disabled. AR 237-51. Specifically, the ALJ made the following findings:

1. The claimant has not engaged in substantial gainful activity since the alleged onset of disability.

2. The claimant's gout, osteoarthritis and depression, not otherwise specified are considered "severe" based on the requirements in the Regulations 20 CFR § 416.920(c).

3. These medically determinable impairments do not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4.

4. The undersigned finds the claimant's allegations regarding his limitations are not totally credible for the reasons set forth in the body of the decision.

5. The claimant has the residual functional capacity to lift and carry twenty pounds frequently, claimant should avoid climbing and balancing but could occasionally crouch and crawl. The claimant also retains the ability to understand, remember and carry out simple one or two-step instructions. The claimant can relate and interact with others with no public contact and he can adapt to stresses common to a normal work environment. The claimant also can maintain concentration, attention, persistence and pace and he can maintain regular attendance. In other words, the claimant retains the ability to perform simple, unskilled work.

6. The claimant has no past relevant work (20 CFR § 416.965).

7. The claimant is a 'younger individual between the ages of 18 and 44'(20 CFR § 416.963).

8. The claimant has a 'marginal education' (20 CFR § 416.963).

9. The claimant has the residual functional capacity to perform a significant range of sedentary work (20 CFR § 416.967).

10. Although the claimant's exertional limitations do not allow him to perform the full range of sedentary work, using Medical-Vocational Rule 201.24 as a framework for decision-making, there are a significant number of jobs in the national economy that he could perform. Examples of such jobs include work as a lampshade assembler (DOT #739.684-094); table worker (DOT# 739.687-182); pharmaceutical assembler (DOT #559.687-014) and mounter (DOT #976.684-018).

11. The claimant was not under a "disability," as defined in the Social Security Act, at any time through February 21, 2005 (20 CFR § 416.920(g)).

AR 250-51.

On September 29, 2006, the Appeals Council notified plaintiff that it had not timely received his exceptions to the ALJ's decision, which caused the ALJ's decision to become the final decision of the Commissioner. AR 227-29. Plaintiff therefore initiated this action.

II. ISSUES PRESENTED

In his motion for summary judgment, plaintiff essentially alleges four errors in the Commissioner's decision. First, plaintiff alleges that the ALJ improperly assessed the medical evidence by failing to credit the opinions of his treating physician, treating psychiatrist, and various consultative examiners. Second, plaintiff asserts that the ALJ improperly assessed his residual functional capacity ("RFC"). Third, plaintiff alleges that the ALJ failed to include all of his limitations in the hypothetical posed to the vocational expert. Finally, plaintiff asserts that the ALJ erred by failing to ask the expert whether her testimony conflicted with the Dictionary of Occupational Titles.

III. LEGAL STANDARDS

The Commissioner's decision that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence in the record and the proper legal standards were applied. Schneider v. Comm'r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999).

The findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). "'It means such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)).

"The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citations omitted). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).

IV. ANALYSIS

A. Assessment of Medical Opinions and RFC Assessment

Plaintiff asserts that the ALJ improperly rejected the opinions of his treating physician, treating psychiatrist, and several of the consultative examiners. According to plaintiff, these alleged errors resulted in a flawed RFC assessment.

The weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining professionals. Lester, 81 F.3d at 830. Ordinarily, more weight is given to the opinion of a treating professional, who has a greater opportunity to know and observe the patient as an individual. Id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996).

To evaluate whether an ALJ properly rejected a medical opinion, in addition to considering its source, the court considers whether (1) contradictory opinions are in the record; and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a treating or examining medical professional only for "clear and convincing" reasons. Lester, 81 F.3d at 831. By contrast, a contradicted opinion of a treating or examining professional may be rejected for "specific and legitimate" reasons, that are supported by substantial evidence. Id., at 830. While a treating professional's opinion generally is accorded superior weight, if it is contradicted by a supported examining professional's opinion (e.g., supported by different independent clinical findings), the ALJ may resolve the conflict. Andrews, 53 F.3d at 1041 (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)).

The record in this case contains a host of medical opinions due to the consolidated claims and the numerous hearings thereon. The record shows that the ALJ considered all such opinions, and the court discusses his treatment of them, first, as they relate to plaintiff's exertional abilities, and second, with respect to his non-exertional limitations.

1. Plaintiff's Exertional Abilities

The ALJ found that plaintiff had the RFC to perform a significant range of unskilled, sedentary work. He determined that plaintiff could lift and carry twenty pounds frequently, could crouch and crawl occasionally, but should avoid climbing and balancing. As set forth below, this assessment was supported by substantial evidence in the record and was based on the proper legal standards.

The ALJ did not err by giving little weight to the contradicted opinions of plaintiff's treating physician, Dr. Wu-Hsiung Su, M.D. He found Dr. Su's opinions to be unsupported by objective findings and inconsistent with other evidence in the record. AR 209-12, 520-21, 244. In his October 2001 assessment, Dr. Su opined that plaintiff could only sit, stand, and walk, for less than 4.6 hours per day, and could not bend, squat, climb, crawl, or use his hands for repeated grasping, pulling, pushing, twisting, or fine manipulations. AR 210. The ALJ gave this opinion little weight because it was unsupported by concurrent medical findings, including x-rays or other diagnostic testing, and was otherwise unexplained. AR 244. Although plaintiff did have an x-ray on September 3, 1999, it indicated only mild degenerative changes in the left ankle with some soft tissue swelling, and did not otherwise support the extensive limitations assessed by Dr. Su. AR 158.

The ALJ also rejected Dr. Su's 2003 assessment that plaintiff could only occasionally lift and carry five to ten pounds, walk or stand for less than one hour without interruption, and sit less than one hour without interruption. AR 244, 519-20. Dr. Su listed the "medical findings" supporting this assessment as "pain and weak." AR 519. Pain and weakness are symptoms, not objective medical findings. See 20 C.F.R. § 404.1529; see also In re Heckler, 751 F.2d 954, 955 n.1 (8th Cir. 1984) ("pain is a symptom").

The ALJ's rejection of such extreme limitations in light of Dr. Su's failure to support them with objective medical findings was not in error. These were "specific and legitimate reasons" when considering the contradictory opinions in the record, as well as the ALJ's adverse credibility determination with respect to plaintiff's subjective complaints. See AR 247-48 (noting numerous inconsistent statements and exaggerations by plaintiff).

Rather than accept Dr. Su's unexplained opinion, which appears to have been based largely on plaintiff's subjective complaints, the ALJ relied on the October 31, 2004, assessment of examining physician, Dr. Karen Chee, M.D. Dr. Chee performed a comprehensive medical examination of plaintiff, and expressed doubt about the severity of his symptoms. In particular, she noted that he used a crutch on the wrong side. See AR 243, 582-83; see also AR 247 (noting that nothing in the record indicated a prescription for an assistive device). Dr. Chee also noted that the tests concerning plaintiff's motor strength were "inconsistent" as he showed "hesitancy with initial good strength," which then "broke away." AR 582. Based on her examination, Dr. Chee opined that plaintiff could lift and carry twenty pounds frequently, walk for two hours and sit without limitation in an eight-hour workday. AR 243, 582-83.*fn3

The state agency physicians assessed similar limitations, AR 489-98, as did consultative examining physician, Dr. Rashid Elahi, M.D. AR 426-30. The ALJ accorded "significant weight" to the opinion of Dr. Elahi, who examined plaintiff on August 18, 2002. AR 243, 426-30. Dr. Elahi opined that during periods where plaintiff's gout was controlled, he would have no limitations in his ability to sit, stand or walk. AR 429. Even during gout attacks, Dr. Elahi opined that plaintiff could still lift and carry twenty pounds, but may need an assistive device to take the weight off his foot. Id. Dr. Elahi noted that plaintiff refused to undergo several procedures designed to test his range of motion in his back, hip, and knees, and he expressed doubt as to plaintiff's claims that he continuously had gout and needed crutches for four-and-a-half years. AR 428-29. He noted that gout was episodic in nature, should last only for about a week at a time, and that plaintiff should otherwise be pain-free between attacks. He further remarked that plaintiff was not on any preventive medicine for gout, and should consult his doctor about getting such a prescription. Id.

This was consistent with the testimony of medical expert, Dr. Loren T. De Wind, M.D., who testified at the hearing held on November 19, 2004, before ALJ Fong.*fn4 AR 643-53. Dr. De Wind testified that he had reviewed plaintiff's records, and opined that plaintiff had recurrent attacks of gout because he did not consistently take his medication as prescribed, and because he was not taking Allopurinol, which if taken faithfully, should prevent gout attacks altogether.*fn5

AR 645-52.

The record supports Dr. De Wind's observation about plaintiff's failure to take his medications faithfully. See, e.g., AR 552 (noting that plaintiff's "treatment for both his psychiatric symptoms and gout remain compromised by inadequate adherence to prescribe medications"); AR 571, 648-49 (plaintiff admitting that he forgets to take his medicine); AR 570, 575 (admitting he stopped taking all medicine and started taking a "gout medicine" from Thailand); AR 438 (reporting inconsistently taking his gout medication). Based on his review of the record and his experience as physician, Dr. De Wind opined that plaintiff could sit six hours in an eight-hour day, and could stand for up to two hours with breaks for sitting if he was not having an acute attack of gout. AR 650. Again, he opined that with faithful adherence to his medications, such attacks could be prevented altogether. See Warre v. Comm'r of the SSA, 439 F.3d 1001, 1006 (9th Cir. 2006) ("Impairments that can be controlled effectively with medication are not disabling for the purpose of determining eligibility for SSI benefits."). Indeed, the record showed that plaintiff was pain-free between attacks. See, e.g., AR 678 (testified he was pain-free between attacks), AR 133-36 (exam performed during pain-free period), AR 151 (reporting gout pain greatly lessened).

Here, Dr. De Wind's opinion was consistent with those of examining physicians Drs. Elahi and Chee, as well as the state agency physicians. See Morgan, 169 F.3d at 600; Andrews, 53 F.3d at 1041 (the opinions of a nonexamining, testifying medical advisor may serve as substantial evidence when supported by other substantial evidence in the record). The ALJ's ultimate RFC determination as to plaintiff's exertional abilities is properly based on those opinions, and as set forth above, finds substantial support in the record.

2. Plaintiff's Ability to Meet Mental Demands of Work

Plaintiff also argues that the ALJ improperly discounted the opinions of his treating psychiatrist, Dr. Alan Koike, M.D., as well as the opinions of consultative psychiatric examiners, Drs. Bobo, Adeyemo, and Behniwal. As a result, he argues, the ALJ improperly assessed his non-exertional limitations with respect to the mental demands of work.

The ALJ concluded that as a result of plaintiff's depression, he had limitations in his ability to perform complex or detailed job tasks, and was limited to simple, unskilled work. AR 244. Specifically, he found that plaintiff retained the ability to understand, remember and carry out simple one or two-step instructions, and could relate and interact with others, but should avoid public contact. The ALJ further found that plaintiff could maintain regular attendance, as well as concentration, attention, persistence and pace, and could adapt to the stresses common to a normal work environment. Id. This assessment of plaintiff's RFC with respect to the mental demands of work is supported by the record.

Although plaintiff argues that the ALJ erred by ignoring the "longitudinal history" of his treatment by treating psychiatrist, Dr. Koike, the record shows that the ALJ concurred with Dr. Koike's assessment, to the extent one was offered. In an August 8, 2003, assessment, Dr. Koike opined that plaintiff had chronic depression, and noted a "rule out" secondary diagnosis of post-traumatic stress disorder ("PTSD"). AR 538-41; see also AR 544, 546, 570-72, 574 (supporting treatment notes). He noted plaintiff's poor adherence to his medications, and opined that plaintiff had only moderate limitations in his ability to relate to others, to perform activities of daily living, and to maintain his personal habits. AR 539-40. He further commented that plaintiff's "depression and gout interact. When the pain from the gout is worse, he is more depressed." AR 539. He found that plaintiff's "degree of constriction of interests" was moderately severe, but declined to give an opinion regarding plaintiff's ability to perform in a work setting. AR 541. He wrote that such an opinion "exceed[ed] scope of practice and [was] contraindicated due to therapeutic considerations." Id.

Dr. Koike's comments regarding plaintiff's moderate limitations are consistent with the ALJ's ultimate RFC assessment, which included limitations to simple, repetitive tasks and limited public contact. Moreover, the ALJ noted that Dr. Koike's treatment notes from 2004 revealed a GAF score of 60, which the ALJ found to be "consistent with only moderate limitations in functioning" including "a limitation to simple tasks with simple instruction with no contact with the public."*fn6 AR 574, 245. Indeed, a GAF score of 60 indicates only moderate symptoms and moderate difficulty in social, occupational, or school functioning. See f.n. 6.

Plaintiff argues that the ALJ erred by failing to comment on Dr. Koike's later treatment notes, which indicated a lowered GAF score and a confirmed diagnosis of PTSD. Plaintiff argues that these later treatment notes obligated the ALJ to obtain an updated RFC assessment from Dr. Koike. See Pl.'s Mot. for Summ. J. and P. & A. in Supp. Thereof ("Pl.'s Br."), 60:9-61:3.

While Dr. Koike did continue to treat plaintiff throughout 2004 and 2005, his treatment notes did not reveal significant changes that required clarification or otherwise affected plaintiff's RFC. See AR 570-74, 611-17; see Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001) (no duty to develop record further where the evidence is unambiguous and the record is adequate). Although Dr. Koike assigned a lower GAF score of 55 to plaintiff in early 2005 (AR 614), that score is within the same range as the earlier score. See f.n. 6. Further, although Dr. Koike eventually made a conclusive diagnosis of PTSD rather than "rule out" PTSD, the progress notes reveal no change in the course of treatment and little to no change in prescribed medications. See AR 611-15. Although Dr. Koike increased plaintiff's dosage of Prozac on one occasion, the record is far more replete with notations of plaintiff's consistent failure to take his medications as prescribed, if at all. AR 611-15; see also AR 432 (showing that by August, plaintiff still had not picked up medications prescribed in April). Furthermore, Dr. Koike's decision to conclusively diagnose plaintiff with a secondary diagnosis of PTSD appears to be based solely on plaintiff's reports of nightmares about his friend's death during the war in Laos. See AR 614. Interestingly, Dr. Koike's notes from 2001 indicate that plaintiff reported having no depression or unhappiness prior to contracting gout. AR 223. Indeed, he indicated that prior to gout, he had no problems, was happy, saw his life as normal and had no complaints. AR 223.

These notations aside, there is no indication that plaintiff's nightmares or PTSD affected his functional abilities. See Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996) (claimant has the burden of proving that an impairment prevents him from working). Indeed, Dr. Koike's progress notes during this later period match almost precisely those from his 2003 assessment. That is, he observed that plaintiff's "mood fluctuates with flare-ups of his gout and other physical symptoms." AR 614, 539.

The same is true with regard to the change in diagnosis from "depression" to "major depression." Dr. Koike's notes during the period in which he diagnosed plaintiff with "major depression" do not differ significantly from earlier notes. If anything, they illustrate plaintiff's continued failure to take his medication as prescribed, despite reports that when he did take it, it helped. See AR 611, 615. Finally, even if the ALJ had contacted Dr. Koike for another assessment, it is highly unlikely that it would have been helpful in determining plaintiff's work-related limitations, since Dr. Koike refused to comment on those matters in 2003. AR 541.

The ALJ considered Dr. Koike's opinion and treatment notes, and found them generally consistent with the majority of other evidence in the record. He found that they supported his ultimate RFC determination, and the record bears this out. There was no error in the ALJ's treatment of Dr. Koike's opinion, and any failure to re-contact Dr. Koike was harmless. See Mayes, 276 F.3d at 460 (no duty to develop where record is adequate); see also Curry v. Sullivan, 925 F.2d 1127, 1129 (9th Cir.1990) (harmless error analysis applicable in judicial review of social security cases).

Plaintiff argues that the ALJ also improperly discounted the observations of consultative examiner, Dr. Jerry Bobo, M.D. However, the ALJ's ultimate RFC determination is largely consistent with Dr. Bobo's assessment. Dr Bobo examined plaintiff in September 2000, and opined that plaintiff could perform simple, repetitive tasks, accept instructions from supervisors, and perform work activities on a consistent basis. AR 139, 251.

Like Dr. Bobo, the ALJ ultimately concluded that plaintiff could remember and carry out simple instructions and perform simple, unskilled work. AR 251.

The ALJ, however, gave little weight to Dr. Bobo's "doubts" about plaintiff's ability to attend work and deal with stress without "interruptions from his psychiatric condition." AR 139, 245. The ALJ discounted those limitations because Dr. Bobo's opinion was based, in part, on inaccurate information provided by the plaintiff. AR 245. For example, plaintiff told Dr. Bobo that he had not worked since he arrived in the United States, although the record indicates he had several jobs after arriving here. AR 25, 81,138, 245, 373. The ALJ also noted that plaintiff told Dr. Bobo that his impairments prevented him from driving altogether, despite evidence in the record that plaintiff had a driver's license and could, and did, drive. See AR 245, 138, 89, 544, 676. Given the inaccurate background information provided by plaintiff, and the finding that plaintiff was less than credible, the ALJ did not err by according less weight to Dr. Bobo's opined limitations. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (free to disregard opinion premised on subjective complaints where plaintiff is not credible).

Similarly, the ALJ rejected the opinion of consultative psychiatrist, Dr. Adegoke Adeyemo, M.D., as inconsistent with the record. AR 245, 422-25. Dr. Adeyemo opined that plaintiff was incapable of performing simple or complex tasks, and would not be able to interact with co-workers or deal with stress encountered in a competitive work environment. AR 425. The ALJ noted that Dr. Adeyemo's opinion was based solely on the August 16, 2002, examination, and was made without reference to relevant medical records. AR 422. In particular, the ALJ noted that Dr. Adeyemo accepted plaintiff's statements that he suffered from hallucinations and multiple suicide attempts, even though contemporaneous progress notes indicated no such delusions. AR 245, 213-26, 432-36. Indeed, progress notes from plaintiff's treatment at Sacramento County Adult Mental Health Services reveal that he reported no hallucinations or delusions, and had intact high cognitive functioning. AR 225, 213-26. The record also shows that plaintiff made inconsistent statements regarding suicide attempts. While he told Dr. Adeyemo that he had attempted suicide multiple times, he told Dr. Behniwal that he only made one such attempt. AR 422, 594. Whether or not plaintiff actually ever attempted suicide is debatable. He told the doctor at the Sacramento County mental health clinic that he once "asked [his] children to get gun" when his pain was at its worse, but that they hid it from him. He also reported that he had also "asked [sic] children to bring him kitchen knife." AR 223. Furthermore, treatment notes from the clinic consistently indicate a lack of suicidal ideation, and show that plaintiff reported that any "suicidal ideation" resolved when he was not in extreme pain. AR 213-26. Because Dr. Adeyemo's opinion was based almost entirely on plaintiff's subjective complaints and statements, and lacked the context of plaintiff's contradictory treatment records, the ALJ rejected the opinion. These were legitimate reasons for doing so. See Tonapetyan, 242 F.3d at 1149.

Similarly, the ALJ rejected the limitations indicated on a form completed by consultative examining psychiatrist, Dr. Mandeep Behniwal, M.D. AR 592-98. Dr. Behniwal examined plaintiff on November 8, 2004, and offered a narrative opinion in addition to the form. Given the inconsistency between the form and the narrative report, the ALJ resolved the ambiguity by accepting the narrative discussion of plaintiff's limitations, which he found to be generally consistent with Dr. Koike's findings, as well as those of the state agency physicians.

In the narrative report, Dr. Behniwal opined that plaintiff retained the ability to perform simple, repetitive tasks, and could accept instructions from supervisors as well as interact with co-workers and the public. AR 597, 246. He found plaintiff only moderately limited in his ability to maintain regular attendance, complete a normal workweek, and deal with the usual stress encountered in the work force. Id.

On the accompanying form, Dr. Behniwal indicated that plaintiff had no useful ability to complete a normal workday or perform work activities without special supervision. AR 246, 592. He also indicated that plaintiff had only a "fair" ability to function (i.e., able to perform satisfactorily only some of the time) in several areas, due to low energy, pain and irritability.

AR 246. Again, the ALJ discounted these limitations in light of their inconsistency with the narrative report. Further, to the extent these limitations were based on plaintiff's subjective complaints, they were properly discounted in light of the ALJ's adverse credibility finding. The ALJ noted this, remarking that plaintiff appeared at the exam in a wheelchair, claiming he could not walk or perform any activities himself. AR 246. The ALJ correctly noted that the record contradicted such claimed limitations and contained no prescription for a wheelchair. AR 247-48. Dr. Behniwal did not have the benefit of records confirming this, nor was he aware of plaintiff's consistent failure to take his medications as prescribed.

Based on the foregoing, the court finds that the ALJ gave legitimate reasons for rejecting the more restrictive opinions regarding plaintiff's non-exertional limitations. The ALJ found that plaintiff had the RFC to understand, remember, and carry out simple instructions, maintain concentration, attention, persistence and pace, and adapt to stresses common to a normal work environment. AR 251. The ALJ further found that plaintiff could maintain regular attendance, and could relate and interact with others, but should avoid contact with the public. Id. This determination was supported by the properly supported portions of opinions rendered by Drs. Bobo, Koike, and Behniwal, as well as the state agency physicians. See AR 486-518. As such, it was supported by substantial evidence and should not be disturbed.*fn7

B. Hypothetical Question Posed to Vocational Expert

Plaintiff next asserts that the ALJ failed to include all of his limitations in the hypothetical posed to the vocational expert. In particular, plaintiff seems to argue that the ALJ should have included in the hypothetical the limitations indicated on the form completed by Dr. Behniwal (i.e., notations that plaintiff had only "fair" functionality in carrying out instructions, interacting with others, etc.). See AR 592-93. However, as set forth above, the ALJ properly rejected those limitations.

Plaintiff asserts that "because the ALJ failed to credit all [his] impairments and credible limitations, he was free to exclude them from serious consideration. Consequently, neither the ALJ's RFC finding nor the hypothetical posed to the VE included any of these limitations as required by 9th Circuit and Social Security law." Pl.'s Br., 68:1-6. By this statement, plaintiff seems to acknowledge the appropriateness of excluding discredited limitations from inclusion in the RFC assessment and in the hypothetical posed to the expert. This is curious in light of plaintiff's decision not to challenge the ALJ's adverse credibility finding. See AR 247-48. Indeed, plaintiff asserts in a footnote that such a challenge is "unnecessary" in light of the other alleged errors. See Pl.'s Br., 63:23-28. By not challenging that determination, plaintiff has waived any argument that plaintiff's discredited complaints should have been the basis for a hypothetical. See Martinez v. Astrue, No. 05-17265, 261 Fed. Appx. 33, 35 (9th Cir. Nov. 9, 2007) (citing Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)).

In any event, the ALJ's hypothetical to the expert reflected his RFC determination, which as set forth above, was supported by substantial evidence. Specifically, the ALJ asked the vocational expert for sedentary jobs involving simple, unskilled work with limited public contact. AR 685-86. Despite the ALJ's finding that plaintiff could speak English, see infra, he also asked for jobs that did not require plaintiff to speak English. Id. The expert identified several jobs that plaintiff could do with those limitations -- table worker, lampshade assembler, pharmaceutical assembler, and hand mounter. AR 686. The ALJ asked the expert whether a person with moderate limitations in his ability to deal with work stresses, and to consistently attend work and perform work activities could still do those jobs. AR 687-88. The expert opined that such a person could do those jobs, because although there may be some difficulties, he would not be precluded from performing them altogether. Id.

This was an appropriate hypothetical based on the ALJ's ultimate interpretation of the evidence. The ALJ was not required to include limitations that he found to be unsupported by substantial evidence in the record. See Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989) (ALJ is not bound to accept limitations that are not supported by substantial evidence); Embrey v. Bowen, 849 F.2d 418, 422-23 (9th Cir. 1988) (hypothetical that ultimately serves as the basis for the ALJ's determination must be supported by substantial evidence). Hypothetical questions posed to a vocational expert must set out all the substantial, supported limitations and restrictions of the particular claimant. Magallanes, 881 F.2d at 756. Here, the ALJ's hypothetical satisfied that requirement.

C. No Conflict Between Vocational Expert's Testimony and DOT

Finally, plaintiff argues that the ALJ erred by failing to ask the vocational expert if her testimony conflicted with the Dictionary of Occupational Titles. See The United States Dept. of Labor, Employment & Training Admin., Dictionary of Occupational Titles (4th ed. 1991), ("DOT"). Specifically, plaintiff argues that his "virtual illiteracy in the English language" would preclude him from performing the identified jobs, each of which the DOT defines as having a "level one" language requirement. He argues that the ALJ's failure to inquire about the conflict between the expert's testimony (i.e., that he could do each job without speaking English) with the DOT's description (requiring "level one" English for each job).

In Massachi v. Astrue, 486 F.3d 1149 (9th Cir. 2007), the Ninth Circuit held that the ALJ must determine whether a conflict exists between an expert's testimony and the DOT, and that if it does, he "must then determine whether the vocational expert's explanation for the conflict is reasonable and whether a basis exists for relying on the expert rather than the Dictionary of Occupational Titles." Id., at 1153. The Court qualified that holding, noting that failure to ask about a conflict is harmless where there is no conflict, or where "the vocational expert . . . provided sufficient support for her conclusion so as to justify any potential conflicts." Massachi, 486 F.3d at 1154, n.19.

Here, the ALJ's failure to inquire about the conflict was harmless because there was no conflict, as the record shows plaintiff has sufficient English skills to perform the identified jobs. Under the DOT guidelines, "level one" language development entails the ability to recognize 2,500 two- or three-syllable words, compare similarities and differences between words, print simple sentences and speak simple sentences. See DOT, Vol. II, App. C, Scale of General Education Development (GED), Language Development, Level 1. Plaintiff's contention that his virtual illiteracy would preclude him from performing any of the identified jobs is untenable. A social security disability applicant is not per se disabled because of illiteracy. Pinto v. Massanari, 249 F.3d 840, 845-47 (9th Cir. 2001). Following plaintiff's rationale, not a single illiterate disability applicant would be qualified for any of the jobs listed in the DOT. Moreover, the record supports a finding that plaintiff satisfies the identified language requirement.

Plaintiff testified at the January 19, 2006, hearing that he could read and speak some English. AR 669. He testified at the hearing in February 2002, that he had taken English classes for three years when he came to California. AR 24-30; but see AR 670 (testifying at another hearing that he studied English for one year). The ALJ also noted that plaintiff had passed the U.S. citizenship test, which requires an applicant to read, write, speak and understand words in ordinary usage in English. The ALJ noted that plaintiff met none of the exceptions for waiver of this requirement. AR 249, 675-76. Further, the ALJ noted plaintiff's previous testimony that when he worked as a dishwasher, he was able to respond to instructions in English. AR 249, 671.

Based on this and other evidence, the ALJ did not find plaintiff's contention of illiteracy to be credible. AR 248-49. Indeed, he specifically concluded that the record supported a finding of basic literacy. AR 249. As discussed above, plaintiff has not challenged the ALJ's credibility determination. Even though the ALJ did not ask the vocational expert to explain why she believed plaintiff could perform the identified jobs without speaking English when the DOT ascribes those jobs a "level one" language requirement, such failure was harmless. There was sufficient evidence in the record for the ALJ to conclude that plaintiff possessed such low level English abilities.

V. CONCLUSION

In conclusion, the court finds that the ALJ's decision is fully supported by substantial evidence in the record and based on the proper legal standards.

Therefore, IT IS ORDERED that:

1. Plaintiff's motion for summary judgment is denied;

2. The Commissioner's cross-motion for summary judgment is granted; and,

3. The Clerk is directed to enter judgment in the Commissioner's favor.


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