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Scott v. Astrue

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION


April 28, 2009

MARSHELL L. SCOTT, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, DEFENDANT.

The opinion of the court was delivered by: Paul L. Abrams United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

I. PROCEEDINGS

Plaintiff filed this action on March 21, 2008, seeking review of the Commissioner's denial of her applications for Supplemental Security Income payments and Disability Insurance Benefits. The parties filed Consents to proceed before the undersigned Magistrate Judge on April 15, 2008, and April 25, 2008. Pursuant to the Court's Order, the parties filed a Joint Stipulation on November 25, 2008, that addresses their positions concerning the disputed issues in the case. The Court has taken the Joint Stipulation under submission without oral argument.

II. BACKGROUND

Plaintiff was born on October 16, 1962. [Administrative Record ("AR") at 100, 135, 169.] She has a high school education [AR at 45-46, 114, 121, 176], and has past relevant work experience as a machine operator, driver, quality control inspector, and warehouse worker. [AR at 44, 109, 118, 127-32, 173-74.]

On January 4, 2005, plaintiff protectively filed her applications for Disability Insurance Benefits and Supplemental Security Income payments, alleging that she has been disabled since March 9, 2004, due to complications from a stroke, poor mental state, depression, obesity, lower back problems, numbness on her right side, blurred vision in her left eye, difficulties with ambulation, and shortness of breath. [AR at 106, 108, 118-19, 139, 162, 169-77, 488--90.] After her applications were denied initially and on reconsideration, plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). [AR at 73-74, 85-99.] A hearing was held on August 28, 2007, at which time plaintiff appeared with counsel and testified on her own behalf. [AR at 41-72.] A vocational expert and a medical expert also testified. [AR at 46-56, 68-71.] On September 6, 2007, the ALJ determined that plaintiff was not disabled. [AR at 16-28.] Plaintiff requested review of the hearing decision. [AR at 14-15.] When the Appeals Council denied plaintiff's request for review on January 25, 2008, the ALJ's decision became the final decision of the Commissioner. [AR at 6-10.] This action followed.

III. STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence or if it is based upon the application of improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

In this context, the term "substantial evidence" means "more than a mere scintilla but less than a preponderance -- it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion." Moncada, 60 F.3d at 523; see also Drouin, 966 F.2d at 1257. When determining whether substantial evidence exists to support the Commissioner's decision, the Court examines the administrative record as a whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Where the evidence is susceptible to more than one rational interpretation, the Court must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523; Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995); Drouin, 966 F.2d at 1258.

IV. THE EVALUATION OF DISABILITY

Persons are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or which has lasted or is expected to last for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin, 966 F.2d at 1257.

A. THE FIVE-STEP EVALUATION PROCESS

The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended April 9, 1996). In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim is denied. Id. If the claimant is not currently engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a "severe" impairment or combination of impairments significantly limiting her ability to do basic work activities; if not, a finding of non-disability is made and the claim is denied. Id. If the claimant has a "severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments ("Listing") set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id.

If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient "residual functional capacity" to perform her past work; if so, the claimant is not disabled and the claim is denied. Id. The claimant has the burden of proving that she is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a prima facie case of disability is established. The Commissioner then bears the burden of establishing that the claimant is not disabled, because she can perform other substantial gainful work available in the national economy. The determination of this issue comprises the fifth and final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257.

B. THE ALJ'S APPLICATION OF THE FIVE-STEP PROCESS

In this case, at step one, the ALJ found that plaintiff had not engaged in any substantial gainful activity since the alleged onset date of the disability.*fn1 [AR at 21.] At step two, the ALJ concluded that plaintiff has the following "severe" impairments: "morbid obesity with dependent edema, left-sided cerebellar stroke in March 2004 with good recovery and hypertension (treated) (citations omitted)." [Id.] At step three, the ALJ determined that plaintiff's impairments do not meet or equal any of the impairments in the Listing. [AR at 22.] The ALJ further found that plaintiff retained the residual functional capacity ("RFC")*fn2 to perform light work*fn3 with the following limitations: "she can sit for 60 minutes at a time and then stand and stretch for 1 to 2 minutes and can carry on this way for 6 hours out of an 8-hour day[;] [s]he can be on her feet for 15 to 20 minutes at a time and can carry on this way for 2 hours in an 8-hour period, using a cane as needed[;] [s]he can lift and/or carry 10 pounds frequently and 20 pounds occasionally"; she can stoop and bend on an occasional basis; she can climb stairs, but cannot climb ladders, work at heights or balance; and she requires an air-conditioned work environment and would miss work one or two times a month. [AR at 22-23.] At step four, the ALJ concluded that plaintiff was not capable of performing her past relevant work. [AR at 26.] At step five, the ALJ found, based on the vocational expert's testimony, that "there are jobs that exist in significant numbers in the national economy that [plaintiff] can perform." [AR at 27.] Accordingly, the ALJ determined that plaintiff is not disabled. [AR at 27-28.]

V. THE ALJ'S DECISION

Plaintiff contends that the ALJ: (1) erred in rejecting the opinion of independent examining internist Dr. Joseph Nassir; and (2) failed to sufficiently explain the discrepancy between the published employment data and the vocational expert's testimony. Joint Stipulation ("Joint Stip.") at 3. As set forth below, the Court respectfully disagrees with plaintiff, and affirms the ALJ's decision.

A. EXAMINING PHYSICIAN'S OPINION

Plaintiff contends that the ALJ failed to provide specific and legitimate reasons for rejecting the opinion of Dr. Nassir. Joint Stip. at 11-12. Specifically, plaintiff asserts that the ALJ improperly discounted "Dr. Nassir's finding that [plaintiff] could not sustain the tasks attendant to an eight-hour workday." Joint Stip. at 11.

In evaluating medical opinions, the case law and regulations distinguish among the opinions of three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (non-examining physicians). See 20 C.F.R. §§ 404.1502, 416.927; see also Lester, 81 F.3d at 830. As a general rule, the opinions of treating physicians are given greater weight than those of other physicians, because treating physicians are employed to cure and therefore have a greater opportunity to know and observe the claimant. See Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); see also Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citing Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)). Although the treating physician's opinion is entitled to great deference, it is not necessarily conclusive as to the question of disability. See Magallanes, 881 F.2d at 751 (citing Rodriguez v. Bowen, 876 F.2d 759, 761-62 (9th Cir. 1989)).

"'The administrative law judge is not bound by the uncontroverted opinions of the claimant's physicians on the ultimate issue of disability, but he cannot reject them without presenting clear and convincing reasons for doing so.'" Matthews v. Shalala, 10 F.3d at 678, 680 (9th Cir. 1993) (quoting Montijo v. Secretary of Health & Human Servs., 729 F.2d 599, 601 (9th Cir. 1984)); see also Lester, 81 F.3d at 830. Where the treating physician's opinion on disability is controverted, it can be rejected only with specific and legitimate reasons supported by substantial evidence in the record. See Lester, 81 F.3d at 830; see also 20 C.F.R. §§ 404.1527(d), 416.927(d) (requiring that Social Security Administration "always give good reasons in [the] notice of determination or decision for the weight [given to the] treating source's opinion"); Social Security Ruling*fn4 96-2p ("the notice of the determination or decision must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight."). "The opinion of an examining physician is, in turn, entitled to greater weight than the opinion of a nonexamining physician." Lester, 81 F.3d at 830. As is the case with the opinion of a treating physician, the ALJ must provide "clear and convincing" reasons for rejecting the uncontradicted opinion of an examining physician, and specific and legitimate reasons supported by substantial evidence in the record to reject the contradicted opinion of an examining physician. See id. at 830-31.

Dr. Nassir examined plaintiff on November 29, 2006. [AR at 347-49.] He found that plaintiff had, among other things, decreased range of motion of the back, hip and knees, "more prominent on the knee with possibly degenerative joint disease secondary to [plaintiff's] weight," mild weakness on the right side, and parethesia with decreased sensitivity to soft pinpricking. [AR at 348.] Dr. Nassir noted that plaintiff's "multiple medical problems[*fn5 ] not only prevent her from performing her required work activities, but also prevent her from performing her required daily activities." [AR at 348.] Dr. Nassir determined that plaintiff "is unable to withstand [a] substantial amount of sitting or standing and . . . is unable to perform work activities on a sustained, regular basis." [AR at 349.] Thus, he concluded that plaintiff is disabled. [Id.] Concurrent with his examination of plaintiff, Dr. Nassir completed a "Multiple Impairment Questionnaire" ("Questionnaire") concerning plaintiff's impairments. [AR at 350-57.] Dr. Nassir opined that plaintiff can sit, stand and/or walk for one hour in an eight-hour day, but not on a continuous basis, and that plaintiff can lift and/or carry 5-10 pounds on an occasional basis and 0-5 pounds on a frequent basis. [AR at 352-53.] Dr. Nassir further found that plaintiff is moderately limited in the upper extremities [right greater than left] in her ability to grasp, turn and twist objects; moderately limited in the right upper extremity and minimally limited in the left upper extremity in using her fingers and/or hands for fine manipulation; and moderately limited in the right upper extremity and minimally limited in the left upper extremity in using her arms for reaching (including overhead). [AR at 353-54.] Dr. Nassir noted that plaintiff is capable of low work stress. [AR at 355.] He estimated that plaintiff is likely to be absent from work more than three times a month as a result of her impairments or treatment. [AR at 356.] Dr. Nassir found that plaintiff's psychological limitations, limited vision, and her inability to push, pull, kneel, bend, and stoop would affect her ability to work at a regular job on a sustained basis. [AR at 356.]

In the decision, the ALJ rejected Dr. Nassir's opinion contained in the Questionnaire because his opinion was rendered after only one evaluation. [AR at 25.] Further, the ALJ did not give "great weight" to the opinion of Dr. Nassir because it "is not from a treating source and is inconsistent with other substantial evidence." [Id.] Instead, the ALJ gave "great weight" to the opinion of nonexamining medical expert Dr. Samuel Landau. [AR at 26.] As discussed below, the ALJ properly considered the opinion of Dr. Nassir.*fn6

The ALJ's conclusion that Dr. Nassir's opinion is not entitled to "great weight" because it "is not from a treating source and is inconsistent with other substantial evidence in the record" is supported by the record. [AR at 25.] While the fact that Dr. Nassir is not a treating source is not determinative here,*fn7 the inconsistency of his opinion with other substantial evidence in the record was properly considered by the ALJ. It is solely within the province of the ALJ to make credibility findings and resolve the conflicts in the medical evidence. See Andrews, 53 F.3d at 1041 (the ALJ is responsible for resolving conflicts in the evidence); see also Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982) (where medical reports are inconclusive, "'questions of credibility and resolution of conflicts in the testimony are functions solely of the Secretary'") (quoting Waters v. Gardner, 452 F.2d 855, 858 n.7 (9th Cir. 1971)); Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) ("[w]hen there is conflicting medical evidence, the Secretary must determine credibility and resolve the conflict.") (citation omitted); Magallanes, 881 F.2d at 753 ("[t]he analysis and opinion of an expert selected by the ALJ may be helpful to the ALJ's adjudication, and [the Court] should not impose 'burdensome procedural requirements that facilitate . . . second-guessing [the ALJ's resolution of conflicting medical testimony].'") (citing Allen v. Heckler, 749 F.2d 577, 580 (9th Cir. 1984)). Here, in discounting the opinion of Dr. Nassir, the ALJ considered the opinion of consultative examiner Dr. Sarah L. Maze, the opinions of State Agency nonexamining physicians Dr. David A. Haaland, Dr. George G. Spellman and Dr. Stuart B. Broasky, and the testimony of Dr. Landau. [AR at 25-26, 46-55, 250-57, 301-04, 307-16.] The ALJ specifically found that Dr. Nassir's opinion that plaintiff "is disabled and unable to sustain an 8-hour workday" was inconsistent with the opinions of those physicians, all of whom concluded that plaintiff "could perform at the very least light work."*fn8 [AR at 25.]

Dr. Maze performed a neurological evaluation of plaintiff on March 30, 2005, in which she conducted physical and neurological examinations. [AR at 301-04.] Dr. Maze found that plaintiff had intact facial sensation, normal function in the sternocleidomastoid and trapezius muscles, decreased motor strength in the right lower extremities, intact sensation in the upper and lower extremities, and normal coordination. [AR at 302-04.] She noted that plaintiff uses a cane, but found that it is not required for ambulation. [AR at 304.] Dr. Maze also noted that plaintiff has a history of stroke and cocaine use. [Id.] Dr. Maze further noted that plaintiff "is actually functioning better at this time than she was when this examiner previously saw her on August 4, 2004, a few months after her stroke." [AR at 304.] Dr. Maze found that plaintiff's only functional limitations are problems with modulation of her speech and reflex asymmetry. [AR at 304.] She concluded that plaintiff is able to: lift 100 pounds occasionally and 50 pounds frequently; stand, sit, and walk for 6 hours in an 8-hour workday; and perform fine motor activities with her arms and legs. [AR at 304.]

Dr. Haaland, Dr. Spellman and Dr. Broasky concluded that plaintiff can: (1) lift and/or carry 50 pounds on an occasional basis and 25 pounds on a frequent basis; (2) stand and/or walk (with normal breaks) for about 6 hours in an 8-hour workday; (3) sit (with normal breaks) for about 6 hours in an 8-hour workday; (4) push and/or pull with no limitations (other than lift and/or carry limitations); (5) climb stairs and ramps on an occasional basis, but can never climb ladders, ropes, or scaffolds; and (6) balance, stoop, kneel, crouch, and crawl on an occasional basis. [AR at 251-52, 307-16.] Dr. Haaland noted that plaintiff's medically determinable impairments are not of disabling severity. [AR at 255.] He further noted that plaintiff has slight right-sided weakness, but has a normal gait, hip flexion, straight leg raising, and neurological examination. [AR at 255.]

Dr. Landau testified at the hearing on August 28, 2007, that based on his consideration of all of the pertinent evidence, plaintiff has morbid obesity with signs of edema, a history of a left-sided cerebellar stroke, treated hypertension, and psychiatric diagnoses. [AR at 47.] Dr. Landau found that plaintiff can sit for six hours in an eight-hour day (with normal breaks), stand and/or walk with the use of a cane,*fn9 lift and/or carry 10 pounds on an frequent basis and 20 pounds on an occasional basis, stoop and bend on an occasional basis, and climb stairs; plaintiff cannot climb ladders, work at heights, or balance. [AR at 47-50.] Dr. Landau testified that Dr. Nassir's disability finding is not corroborated by the degree of plaintiff's impairment. [AR at 52.] While noting the January 9, 2002, CT scan of the lumbar spine showing mild degenerative changes, Dr. Landau further testified that there is no objective evidence in the record for Dr. Nassir's finding of possible degenerative joint disease of the knee. [AR at 52-53, 348, 482.] Specifically, Dr. Landau noted that there are no images, deformities, or atrophy, and no objective findings, such as x-rays, that support regress pathology. [AR at 53.]

Contrary to the findings of Dr. Nassir, Dr. Maze did not find that plaintiff had possible degenerative joint disease or an inability to withstand a substantial amount of sitting, or conclude that plaintiff was disabled. See Magallanes, 881 F.2d at 751 (an examining physician's opinion based on independent clinical findings can constitute substantial evidence). Neither did the nonexamining physicians conclude that plaintiff was disabled. See id. at 752 (the opinion of a nonexamining, nontreating physician need not be discounted when it "is not contradicted by all other evidence in the record") (emphasis in original). Rather, Dr. Maze found that plaintiff's only functional limitations were problems with modulation of her speech and reflex asymmetry, and both Dr. Maze and the nonexamining physicians concluded that plaintiff was at least able to perform work at the light level of exertion. [AR at 304, 307-16.] After a thorough review of the records, the ALJ noted that the residual functional capacity assessment for "a narrowed range of light work takes account of the mild objective findings, the various medical opinions and claimant's testimony." [AR at 26.] He concluded that the RFC assessed in the decision "is more restrictive than the recommendations of the consultative examiners and the State Agency review physicians, and accords [plaintiff] every reasonable benefit of the doubt." [Id.] Given that the opinions of the examining and nonexamining physicians regarding plaintiff's functional limitations were contrary to the opinion of Dr. Nassir, it was solely within the province of the ALJ to resolve the conflicts in the medical opinions. See Matney, 981 F.2d at 1019 ("[t]he trier of fact and not the reviewing court must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.") (citation omitted); see also Allen, 749 F.2d at 579 (if the evidence supports more than one rational interpretation, the reviewing court must uphold the ALJ's decision as it is in no position to second-guess the ALJ's choice among conflicting opinions).

Moreover, the ALJ's disregard of Dr. Nassir's opinion in favor of the opinion of nonexamining medical expert Dr. Landau is legally sufficient. In evaluating medical opinions,*fn10 the ALJ considers, among other things, the supportability of the opinion in the evidence, the consistency of the opinion with the record, including other medical opinions, and other factors such as the degree of understanding the physician has of the Social Security Administration's "disability programs and their evidentiary requirements" and the degree of the physician's familiarity with other information in the case record. See 20 C.F.R. §§ 404.1527(d)(3)-(6), (f)(2)(ii), 416.927(d)(3)-(6), (f)(2)(ii); see, e.g., Wimberly v. Astrue, 2008 WL 4381617, *5 (C.D. Cal. Sept. 25, 2008) ("[w]hen the ALJ considers the findings of a State Agency medical consultant, the ALJ evaluates the findings using factors such as medical specialty and expertise in social security rules, supporting evidence in the case record, supporting explanations provided by the physician, and any other factors relevant to the weighing of the opinions.") (citation omitted). State Agency physicians are considered "highly qualified physicians who are also experts in Social Security disability evaluation." See 20 C.F.R. §§ 404.1527(f)(2)(i), 416.927(f)(2)(i); see also SSR 96-6p. "In appropriate circumstances, opinions from State agency medical and psychological consultants and other program physicians and psychologists may be entitled to greater weight than the opinions of treating or examining sources." SSR 96-6p.

Here, the ALJ gave "great weight" to the opinion of Dr. Landau in discounting the opinion of Dr. Nassir.*fn11 The ALJ noted that Dr. Landau's testimony is based on objective medical evidence, is consistent with the medical record, and "takes account of the various recommendations" in the record. [AR at 26.] Indeed, Dr. Landau's testimony was based on a review of the record, including the treatment records and the opinions of the examining and nonexamining sources. [AR at 46-50.] See SSR 96-6p (the opinion of a State Agency physician may be entitled to greater weight than the opinion of a treating source if the State Agency physician's opinion "is based on a review of a complete case record that includes a medical report from a specialist in the [claimant's] particular impairment which provides more detailed and comprehensive information than what was available to the [claimant's] treating source"); see also 20 C.F.R. §§ 404.1527(d)(3), 416.927(d)(3) ("the weight afforded to the opinions of nonexamining physicians depends on "the degree to which they provide supporting explanations for their opinions"). At the hearing on August 28, 2007, Dr. Landau concluded, based on his review of the record and the objective medical findings, that Dr. Nassir's opinion that plaintiff is disabled is not supported by the evidence, i.e., there is no objective evidence that plaintiff suffered from an impairment of disabling severity.*fn12 [AR at 52-53.] Although Dr. Landau acknowledged on cross-examination that Dr. Nassir's finding of possible degenerative joint disease is a "perfectly reasonable diagnosis" in light of plaintiff's obesity, he testified that there is no objective evidence to support such a finding. [AR at 53.] See Andrews, 53 F.3d at1042 ("[b]ecause [the nonexamining psychologist] was subject to cross-examination, the ALJ could legitimately credit her testimony.") (citation omitted); see also Torres v. Secretary of Health and Human Services, 870 F.2d 742, 744 (1st Cir. 1989) (greater weight may be given to opinion of nonexamining expert who testifies at hearing subject to cross-examination); Downing v. Barnhart, 167 Fed.Appx. 652, 653 (9th Cir. 2006) (ALJ may reject a medical opinion if it is conclusory and inadequately supported by clinical findings) (citation omitted); Matney, 981 F.2d at 1019 (ALJ may discount the conclusory opinion of an examining or treating physician if the opinion is unsupported by clinical findings). As discussed herein, Dr. Landau's testimony is supported by substantial evidence in the record. See 20 C.F.R. §§ 404.1527(d)(5), 416.927(d)(5) (the more consistent an opinion is with the record as a whole, the more weight it will be given); see, e.g., Knight v. Chater, 55 F.3d 309, 314 (7th Cir. 1995) ("[m]edical evidence may be discounted if it is internally inconsistent or inconsistent with other evidence.") (citation omitted). Dr. Nassir's disability finding not only conflicted with the opinion of Dr. Landau, but it also conflicted with the opinion of an examining physician and three other nonexamining physicians. See discussion, supra. Thus, the ALJ did not err in affording "great weight" to the opinion of Dr. Landau. [AR at 26.]

Furthermore, the ALJ's reliance on Dr. Landau's opinion based on its consistency with other evidence in the record was proper. The opinion of a nonexamining physician may serve as substantial evidence when it is consistent with other independent evidence in the record. See Lester, 81 F.3d at 830-31; see also Andrews, 53 F.3d at 1041 ("reports of the nonexamining advisor need not be discounted and may serve as substantial evidence when they are supported by other evidence in the record and are consistent with it"); Magallanes, 881 F.2d at 751-55 ("the ALJ did not rely on [the nonexamining physician's] testimony alone to reject the opinions of [the claimant's] treating physicians . . . .") (emphasis in original); but see Pitzer v. Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990) (the opinion of a nonexamining physician cannot, by itself, constitute substantial evidence that justifies the rejection of a treating physician). Dr. Landau's testimony, that there is no objective evidence to support Dr. Nassir's disability determination, is consistent with the opinions of the examining and other nonexamining physicians. Given that Dr. Landau's opinion is supported by other evidence in the record, his opinion constitutes substantial evidence.

The ALJ summarized the facts and conflicting evidence in a detailed and thorough manner, stating his interpretation and making findings. Thus, his conclusion is entitled to deference. The ALJ provided legally sufficient reasons, based on substantial evidence in the record, for discounting the opinion of Dr. Nassir. See Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (specific and legitimate reasons can be set forth by a "detailed and thorough summary of the facts and conflicting clinical evidence, stating [the ALJ's] interpretation thereof, and making findings") (citing Magallanes, 881 F.2d at 751). Accordingly, remand is not warranted on this issue.

B. ABILITY TO PERFORM OTHER WORK

Plaintiff contends that the ALJ erred in relying on the testimony of the vocational expert as it was "patently insufficient." Joint Stip. at 15-17. Plaintiff argues that, according to the Dictionary of Occupational Titles ("DOT"), the jobs cited by the vocational expert are "substantially inconsistent" with the residual functional capacity, namely the standing and walking limitations, assessed by the ALJ and set forth in the hypothetical question. Joint Stip. at 16. Specifically, plaintiff asserts that the ALJ found her limited to standing and walking for no more than two hours in an eight-hour day with additional breaks, yet the jobs cited by the vocational expert "clearly require the ability to be on one's feet up to six hours a day." Joint Stip. at 16. Plaintiff concludes that the ALJ's reliance on the testimony of the vocational expert, without any persuasive explanation for the discrepancy between the testimony and the DOT, is reversible error. Id.

At step five of the sequential evaluation process, the burden shifts to the Commissioner to prove that, based on the claimant's RFC, age, education, and past work experience, she can perform some type of substantial gainful activity that exists in "significant numbers" in the national economy. See Smolen, 80 F.3d at 1291; see also 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137, 146 n.6 (1987) ("It is true . . . that the Secretary bears the burden of proof at step five, which determines whether the claimant is able to perform work available in the national economy."). "[T]he best source for how a job is generally performed is usually the Dictionary of Occupational Titles. In order for an ALJ to accept vocational expert testimony that contradicts the Dictionary of Occupational Titles, the record must contain 'persuasive evidence to support the deviation.'" Pinto v. Massanari, 249 F.3d 840, 845-46 (9th Cir. 2001) (citing Johnson, 60 F.3d at 1435). When the ALJ's decision contradicts the DOT, the ALJ must offer an explanation regarding why he or she is rejecting the DOT's description. See Johnson, 60 F.3d at 1435 n.7 ("[i]n this case the ALJ's explanation is satisfactory because the ALJ made findings of fact that support a deviation from the DOT. The ALJ noted that the vocational expert described the characteristics and requirements of jobs in the local area."); see also Terry v. Sullivan, 903 F.2d 1273, 1278 (9th Cir. 1990).

In the decision, the ALJ determined that "[plaintiff's] ability to perform all or substantially all of the requirements of [the light] level of work has been impeded by additional limitations." [AR at 27.] The ALJ found, inter alia, that plaintiff "can be on her feet for 15 to 20 minutes at a time and can carry on this way for 2 hours in an 8-hour period, using a cane as needed." [AR at 22.] During the August 28, 2007, hearing, the ALJ posed the following hypothetical to the vocational expert:

So the individual can sit up to an hour at a time. And has to stand and stretch for a minute or two. But can't sit all day long . . . but could sit for six hours out of eight. Standing and walking would be only a total of two hours out of eight. Using a cane whenever she'd like to. But on her feet all of 15, and 20 minutes at a time. Lifting and carrying would be no more than 20 pounds occasionally and 10 pounds frequently. Only occasionally stoop and bend. Can climb stairs but not ladders. Can't work at heights. Can't do any job requiring balancing and must work in an air conditioned work environment. And would miss work once or twice . . . .

[AR at 69.] The vocational expert testified that a hypothetical individual with the limitations described by the ALJ would be unable to perform any of plaintiff's past relevant work, but would be able to perform the jobs of bench assembler, small parts assembler, inspector, and hand packager, with a fifty percent erosion of the occupational base for each of those jobs. [AR at 69-70.] The vocational expert further testified that the jobs she cited were consistent with the DOT. [AR at 70.] Based on the vocational expert's testimony, the ALJ determined that plaintiff could perform a significant number of jobs in the national economy. [AR at 27.]

The vocational expert testified that the jobs of bench assembler, small parts assembler, inspector, and hand packager are classified in the DOT as unskilled with a light exertional level.*fn13

The DOT describes the strength rating for light work as follows:

Exerting up to 20 pounds of force occasionally (Occasionally: activity or condition exists up to 1/3 of the time) and/or up to 10 pounds of force frequently (Frequently: activity or condition exists from 1/3 to 2/3 of the time) and/or a negligible amount of force constantly (Constantly: activity or condition exists 2/3 or more of the time) to move objects. Physical demand requirements are in excess of those for Sedentary Work. Even though the weight lifted may be only a negligible amount, a job should be rated Light Work: (1) when it requires walking or standing to a significant degree; or (2) when it requires sitting most of the time but entails pushing and/or pulling of arm or leg controls; and/or (3) when the job requires working at a production rate pace entailing the constant pushing and/or pulling of materials even though the weight of those materials is negligible.

See DOT, Appendix C - Components of the Definition Trailer, 1991 WL 688702 (1991). The regulations define light work as "lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds." 20 C.F.R. §§ 404.1567(b) and 416.967(b); see SSR 83-10. "Even though the weight lifted in a particular light job may be very little, a job is in this category when it requires a good deal of walking or standing -- the primary difference between sedentary and most light jobs." SSR 83-10; see also 20 C.F.R. §§ 404.1567(b) and 416.967(b). Social Security Ruling 83-10 states that "[f]requent means occurring from one-third to two-thirds of the time. Since frequent lifting or carrying requires being on one's feet up to two-thirds of a workday, the full range of light work requires standing and walking, off and on, for a total of approximately 6 hours of an 8-hour workday. Sitting may occur intermittently during the remaining time."

Plaintiff's conclusion that there is no explanation for the disparity between the vocational expert's testimony and the DOT, i.e., that the DOT's description of "light work" for the jobs cited by the vocational expert would require plaintiff to go beyond the standing and walking limitations found by the ALJ, fails. To the extent a conflict exists between the vocational expert's testimony and the DOT, there must be persuasive evidence supporting any decision to rely on the vocational expert's opinion rather than on the information provided in the DOT. See Light v. Social Sec. Admin., 119 F.3d 789, 793 (9th Cir. 1997) (where the vocational expert's testimony differs from the DOT, he must provide a persuasive rationale supported by the evidence to justify the departure). The ALJ in this case found that plaintiff's limitations, including the standing and walking limitations, did not allow her to perform the full range of light work. [AR at 27, 70.] See 20 C.F.R. §§ 404.1567(b), 416.967(b) ("[t]o be considered capable of performing a full or wide range of light work, [a claimant] must have the ability to do substantially all of [the light work] activities."); see, e.g., Boster v. Commissioner, Soc. Sec. Admin., 2008 WL 754275, *4 (D. Idaho Mar. 19, 2008) ("'there will be instances where a claimant's residual functional capacity will not fit precisely within one of the exertional categories of work'") (citation omitted). To determine the extent to which plaintiff's limitations eroded the unskilled, light occupational base, the ALJ asked the vocational expert whether jobs exist in the national economy for an individual with plaintiff's age, education, work experience, and residual functional capacity. The vocational expert testified that an individual with plaintiff's limitations could perform certain jobs that are classified in the DOT as unskilled and light work based on the erosion of the available number of those jobs in the local and national economies by fifty percent. [AR at 70.] Subsequent to the identification of the eroded occupational base for the jobs cited, the vocational expert further testified, in response to the ALJ's inquiry as to any potential conflicts between her testimony and the DOT, that her testimony was consistent with the DOT. [AR at 70.] See Massachi v. Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 2007) (holding that an ALJ may not rely on a vocational expert's testimony regarding the requirements of a particular job without first inquiring whether the testimony conflicts with the DOT). While the vocational expert did not explicitly state that the 50 percent erosion for the jobs identified was due to plaintiff's standing and walking limitations, such a conclusion is reasonably implied.*fn14 See Light, 119 F.3d at 793 ("[e]vidence sufficient to permit . . . a deviation [between the vocational expert's testimony and the DOT] may be either specific findings of fact regarding the claimant's residual functionality, or inferences drawn from the context of the expert's testimony") (citations omitted); see also Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982) (an ALJ is entitled to draw inferences logically flowing from the evidence). Indeed, the vocational expert did not base her testimony on a hypothetical individual that was capable of performing the full range of light work. On the contrary, the expert considered the limitations on light work, included in the hypothetical question posed by the ALJ, and reduced the number of jobs available to an individual with those limitations. [AR at 70.] See SSR 83-12 (recognizing usefulness of vocational expert assistance where claimant's exertional RFC does not coincide precisely with the definition of any one exertional range); see also SSR 00-4p ("[t]he DOT lists maximum requirements of occupations as generally performed, not the range of requirements of a particular job as it is performed in specific settings. A [vocational expert] . . . may be able to provide more specific information about jobs or occupations than the DOT."); see, e.g., Vaughan v. Shalala, 58 F.3d 129, 132 (5th Cir.1995) ("the value of a vocational expert is her familiarity with the specific requirements of a particular occupation, including working conditions and the attributes and skills needed"). Further, plaintiff's counsel cross-examined the vocational expert at the hearing regarding plaintiff's ability to perform the jobs that she cited if plaintiff was off-task for about twenty percent of the workday, but did not challenge the vocational expert's testimony with respect to the exertional requirements of any of the jobs identified by her. [AR at 70-71.] Thus, the vocational expert's specific acknowledgment of the DOT's strength rating of light for the jobs that she cited, in conjunction with the erosion of those jobs by fifty percent, provided a sufficient rationale to support the deviation between the vocational expert's testimony and the DOT. As such, the ALJ did not err by relying on the vocational expert's testimony concerning plaintiff's ability to perform other work. Remand is not warranted on this issue.

VI. CONCLUSION

IT IS HEREBY ORDERED that: 1. plaintiff's request for reversal, or in the alternative, remand, is denied; and 2. the decision of the Commissioner is affirmed.

IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel.

This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included or submitted to any online service such as Westlaw or Lexis.


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