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Johnson v. Astrue


June 18, 2009


The opinion of the court was delivered by: Gregory G. Hollows U.S. Magistrate Judge


Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act ("Act"). For the reasons that follow, plaintiff's Motion for Summary Judgment is DENIED, the Commissioner's Cross Motion for Summary Judgment is GRANTED, and the Clerk is directed to enter judgment for the Commissioner.


Plaintiff, born April 30, 1965, applied on March 10, 1997 for disability benefits. (Tr. at 65, 53.) Plaintiff alleged she was unable to work due to systemic lupus and rheumatoid arthritis. (Tr. at 64.) Plaintiff was found disabled by an ALJ on December 15, 1998; however, on October 23, 2002, the Commissioner determined that plaintiff was no longer disabled as of August, 2002. (Tr. at 53-56, 73.) Plaintiff filed a request for reconsideration which was denied, and a timely appeal which was granted. (Tr. at 77, 79, 91, 262-65.) Plaintiff requested and received a hearing on January 13, 2006.*fn1 (Tr. at 356.)

In a decision dated November 24, 2006, ALJ John J. Madden, Jr. determined plaintiff was not disabled. The ALJ made the following findings:*fn2

1. The most recent favorable medical decision finding that the claimant was disabled is the decision dated December 25, 1998. This is known as the "comparison point decision" or CPD.

2. At the time of the CPD, the claimant had the following medically determinable impairments: systemic lupus and rheumatoid arthritis. These impairments were found to meet sections 1.02(A) and (B) of 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d) and 416.920(d)).

3. Through February 1, 2003, the date the claimant's disability ended, the claimant did not engage in substantial gainful activity (20 CFR 404.1594(f)(1)).

4. The medical evidence establishes that, as of February 1, 2003, the claimant had the following medically determinable impairments: systemic lupus, rheumatoid arthritis, fibromyalgia, degenerative disc disease in the lumbar spine, gastro-esophageal reflux disease, history of a broken finger status post repair, and obesity.

5. As of February 1, 2003, the claimant did not have an impairment or combination of impairments which met or medically equaled the severity of an impairment listed in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1525, 404.1526, 416.925 and 416.926).

6. Medical improvement occurred as of February 1, 2003 (20 CFR 404.1594(b)(1) and 416.994(b)(1)(i)).

7. The medical improvement is related to the ability to work because, as of February 1, 2003, the impairments present at the time of the CPD no longer met or medically equaled a listing (20 CFR 404.1594(c)(3)(i) and 416.994(b)(2)(iv)(A)).

8. As of February 1, 2003, the claimant continued to have a severe impairment or combination of impairments (20 CFR § 404.1594(f)(6) and 416.994(b)(5)(v)).

9. Based on the impairments present as of February 1, 2003, the claimant has the residual functional capacity to occasionally lift and carry 20 pounds, frequently lift and carry ten pounds, stand and/or walk for six hours in an eight hour day, sit for six hours in an eight hour day, and do unlimited pushing and pulling. She can occasionally climb, balance, stoop, kneel, crouch, and crawl. She needs to avoid concentrated exposure to extreme cold, fumes, dusts, odors, gases, poor ventilation, and hazards.

10. As of February 1, 2003, the claimant was unable to perform past relevant work (20 CFR 404.1565 and 416.965).

11. On February 1, 2003, the claimant was a younger individual age 18-44 and continues to remain in that category (20 CFR 404.1563 and 416.963).

12. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).

13. Beginning on February 1, 2003, transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

14. As of February 1, 2003, considering the claimant's age, education, work experience, and residual functional capacity based on the impairments present as of February 1, 2003, the claimant was able to perform a significant number of jobs in the national economy (20 CFR 404.1560(c), 404.1566, 416.960(c), and 416.966).

15. The claimant's disability ended as of February 1, 2003 (20 CFR 404.1594(f)(8) and 416.994(b)(5)(vii)).

(Tr. at 22-35.)

Therefore, the question is whether the ALJ's decision that plaintiff's disability ended on February 1, 2003, was proper. Where plaintiff was previously awarded disability benefits, there is a presumption of continuing disability. Bellamy v. Secretary of Health & Human Services, 755 F.2d 1380, 1381 (9th Cir. 1985), citing Murray v. Heckler, 722 F.2d 499, 500 (9th Cir. 1983). It is the Secretary's burden to come forward with evidence to rebut this presumption. Id. To determine medical improvement, the Secretary "compare[s] the current medical severity of that impairment(s) which was present at the time of the most recent favorable medical decision that [plaintiff was] disabled or continued to be disabled to the medical severity of that impairment(s) at that time." 20 C.F.R. § 404.1594(b)(7). The comparison point date ("CPD") is compared to the plaintiff's present condition.


Plaintiff has raised the following issues: A. Whether the ALJ Erroneously Relied on Two Reports Submitted After the Hearing; B. Whether the ALJ's Hypothetical to the Vocational Expert Was Inadequate as a Matter of Law; and C. Whether the ALJ Erroneously Failed to Accept the Assessment of Plaintiff's Treating Physician.


The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir.1999). Substantial evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). "The court will uphold the ALJ's conclusion when the evidence is susceptible to more than one rational interpretation." Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). ANALYSIS

A. Whether the ALJ Erroneously Relied on Two Reports Submitted After the Hearing

Plaintiff objects to two medical reports submitted after the hearing, by Drs. Eder and Nolan.

1. Dr. Eder's Report

In regard to Dr. Eder's assessment, dated March 17, 2006, plaintiff claims it constitutes hearsay and as such, was not properly admitted into evidence.*fn3 The residual functional capacity assessment by this SSA physician was given weight by the ALJ. (Tr. at 31.) It stated that plaintiff could occasionally lift twenty pounds, frequently lift ten pounds, stand and/or walk for six hours in an eight hour day, sit for six hours in a day, and occasionally climb, balance, stoop, kneel, crouch, and crawl. (Id. at 336-38.) Plaintiff was to avoid concentrated exposure to extreme cold, fumes, odors, dusts, gases, and hazards. (Id. at 340.)

Plaintiff asserts that there is no documentary support for Dr. Eder's qualifications as a licensed physician, and the report was not signed by her, but rather contains this source's name in typed format at the bottom of the report. The report itself states under "medical consultant's code next to the physician's digital signature: "19 Internal Medicine." (Id. at 343.) As to the qualification of this individual to practice medicine, the court takes note of Dr. Eder's internal medicine practice in Salem, Oregon. See Although a rubber stamp signature may not be acceptable, 20 C.F.R. § 404.1519n(e), the signature for Dr. Eder was digitally entered and therefore is adequate.

Digital signatures are commonplace at this time, and often take the place of an ink signature. Indeed, the court takes judicial notice of its own CM/ECF procedures where important judicial documents, even the present motions before the undersigned, are accompanied by a /s/ or other type of digital signature. Plaintiff makes no valid argument why digital signatures should also not be recognized by the Social Security Administration -- it is not a "rubber stamp" signature.

Ample evidence in the record supports this report in any event. The assessment, which limits plaintiff to light work with postural limitations, contains a full page of single spaced typewritten remarks supporting this finding, and covers review of records dating from November 7, 2002 through February 26, 2006. (Id. at 343.) They refer to pain medications taken for lupus, rheumatoid arthritis, fibromyalgia and Raynaud's Syndrome. Plaintiff reported that she was doing much better because of back exercises. (Id.) Although tests were positive for Hepatitis C, the levels did not approach listing level. MRI of the spine indicated mild central spinal stenosis, mild disc bulge with central stenosis and mild facet hypertrophy. Plaintiff met the criteria for fibromyalgia, but she was on no medications at the time Dr. Nolan examined her. Dr. Eder summarized Dr. Nolan's findings: "[o]nly 2/18 FM tender points positive. Dr. Nolan noted exam findings were not very impressive compared to her incredibly diffuse complaints. It was noted that exam findings were supportive of dx of FM 2 months earlier." (Id.) Headaches were far less frequent than in the past. Range of motion was fairly unremarkable. Dr. Eder also noted that overall exam findings were not consistent with plaintiff's diffuse complaints. Dr. Eder also restricted plaintiff functionally more than Dr. Nolan, explaining that the remainder of the file supported a restriction in bending, twisting, turning and lifting. In regard to systemic lupus, the ANA results supported this diagnosis; however, they did not indicate strong current activity. Plaintiff was not receiving treatment for lupus at this time, which Dr. Eder thought would improve or resolve her pain symptoms. It was proper for the ALJ to rely on this report as an opinion of a non-examining physician. See 20 C.F.R. §§ 404.1527(f) and 416.927(f).

2. Dr. Nolan's Report

Plaintiff objects to Dr. Nolan's report, dated February 26, 2006, claiming it was not signed and that the ALJ had previously implicitly rejected Dr. Nolan's diagnosis. The ALJ gave this report more weight than the records of plaintiff's treating physician, Dr. Shearer, in part because he was a Board Certified Internal Medicine specialist who was more experienced and knowledgeable regarding plaintiff's condition that Dr. Shearer, who was merely a general practitioner. (Id. at 31.) This report was quite extensive, covering three and half single spaced typewritten pages. (Id. at 344-47.) First, Dr. Nolan recorded plaintiff's subjective complaints, which included pain all of the time which was severe and occurred four out of seven days. Plaintiff, however, was taking no medication at this time. Although plaintiff complained of daily headaches, her intense headaches had decreased significantly and now occurred only once a month. (Id. at 344.)

On exam, plaintiff could stand and sit without problem. Her gait was normal, as was tandem gait, Romberg, walking on toes and heels, and squat rise maneuver. Flexion of the lumbar spine was 90 degrees. Extension was 20 degrees. (Id. at 345.) Testing for fibromyalgia was positive at only one out of nine locations, with a conclusion of no fibromyalgia. Dr. Nolan noted that although there were diagnoses of both rheumatoid arthritis and lupus, "traditionally, when both diagnoses are present in the same individual one of the diagnoses represents a mistake in misdiagnosis." (Id. at 346.) Dr. Nolan mentioned a history compatible with Raynaud's phenomenon; however, he stated that plaintiff's complaints were "incredibly diffuse and nonspecific in reference to neuromuscular presentation." (Id. at 346-47.)

Dr. Nolan spent time discussing plaintiff's credibility: But notwithstanding her complaints of frequent joint pains, her examination is quite unimpressive. I noted that she had alleged exam findings supportive of the diagnoses to [sic] fibromyalgia just two months ago. In my experience there may be periodic variability on exam findings in that a person with clear-cut evidence for the diagnosis may have a normal examination a number of months later. I find it surprising however that she would have a supposedly positive evaluation just two months ago and have a definitely negative valuation after such a short duration. (Id. at 347.)

Dr. Nolan concluded that there was no reason to restrict the amount of sitting, standing, and walking in a work day. Due to prior back complaints, this physician might limit repetitive bending, twisting, and turning. He would limit lifting to 20 pounds frequently and 40 pounds occasionally. He would also limit repetitive high impact activities based on a possible previously valid diagnosis of fibromyalgia. (Id.)

Plaintiff objects to this report because it found that plaintiff had no severe impairments, and the ALJ's opinion found the following impairments to be severe as based on Dr. Shearer's records: systemic lupus, rheumatoid arthritis, fibromyalgia, degenerative disc disease, gastro-esophageal reflux disease, history of broken finger, and obesity.*fn4 It is true that the ALJ found these severe impairments based for the most part on Dr. Shearer's records. (Id. at 25.) Nevertheless, the ALJ found that none of these impairments met or equaled a listing. (Id.) Furthermore, he specifically stated that although these impairments could have been expected to produce some of plaintiff's symptoms, plaintiff was not totally credible in her statements regarding the intensity, persistence, and limiting effects of the impairments.

The fact that Drs. Shearer and Nolan disagreed on the severity of these impairments is not error. An ALJ may properly rely upon only selected portions of a medical opinion while rejecting other parts. See, e.g., Magallanes v. Bowen, 881 F.2d 747, 753 (9th Cir. 1989) (ALJ's supported reliance on selected portions of conflicting opinion constitutes substantial evidence). However, such selective reliance must be consistent with the medical record as a whole. See, e.g., Edlund v. Massanari, 253 F.3d 1152, 1159 (9th Cir. 2001) (ALJ cannot reject portion of medical report that is clearly reliable). Here, reliance on one physician's findings of severe impairments is not necessarily inconsistent with another physician's findings of no severe impairment as the legal threshold for a step two finding is so low. Consequently, contrary to plaintiff's continued assertions, the ALJ did not either implicitly or expressly reject Dr. Nolan's opinion.

The purpose of step two is to identify claimants whose medical impairment is so slight that it is unlikely they would be disabled even if age, education, and experience were taken into account. Bowen v. Yuckert, 482 U.S. 137, 107 S.Ct. 2287 (1987). "The step-two inquiry is a de minimis screening device to dispose of groundless claims." Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). At this step, the ALJ may decline to find a severe impairment "only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work." Webb v. Barnhart, 433 F.3d 683, 686-87 (9th Cir. 2005) (emphasis in original). The ALJ's findings of severe impairments at step two satisfied his obligation to make these findings based on the standards set forth here. Dr. Nolan, however, was under no such legal duty based on his exam of plaintiff.

Finally, as discussed in a later section infra, the ALJ was permitted to reject Dr. Shearer's opinion because it was based in part on plaintiff's subjective complaints which were discounted. "An ALJ may reject a treating physician's opinion if it is based 'to a large extent' on a claimant's self-reports that have been properly discounted as incredible." Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008), citing Morgan v. Comm'r Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999) (citing Fair V. Bowen, 885 F.2d 597, 605 (9th Cir. 1989)). Plaintiff also takes issue with Dr. Nolan's report which she claims is "improperly signed," claiming that although the report is signed, it does not state that it was reviewed, and there is strong evidence that it was dictated but not read. Pl.'s Mot. at 17-18. The fact that this report was dictated with voice recognition software explains the kind of typographical errors pointed out by plaintiff, all of which are minimal in nature and inconsequential. Even if the court accepts plaintiff's speculative claim that Dr. Nolan did not review this report before signing it, it was not error for the physician to fail to proofread it.

B. Whether the ALJ Erroneously Failed to Accept the Assessment of Plaintiff's Treating Physician

Plaintiff contends that the opinion of her treating physician, Dr. Shearer, was improperly rejected by the ALJ.

The weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining professionals. Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).*fn5 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. In contrast, a contradicted opinion of a treating or examining professional may be rejected for "specific and legitimate" reasons. Lester, 81 F.3d at 830. While a treating professional's opinion generally is accorded superior weight, if it is contradicted by a supported examining professional's opinion (supported by different independent clinical findings), the ALJ may resolve the conflict. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). The regulations require the ALJ to weigh the contradicted treating physician opinion, Edlund v. Massanari, 253 F.3d 1152 (9th Cir. 2001),*fn6 except that the ALJ in any event need not give it any weight if it is conclusory and supported by minimal clinical findings. Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir.1999) (treating physician's conclusory, minimally supported opinion rejected); see also Magallanes, 881 F.2d at 751. The opinion of a non-examining professional, without other evidence, is insufficient to reject the opinion of a treating or examining professional. Lester, 81 F.3d at 831.

In regard to Shearer, plaintiff's treating physician, the ALJ explained that plaintiff did not regularly complain to him about fibromyalgia or lupus in the period after October, 2002, but she went to this doctor when she needed proof for her Social Security hearing. (Tr. at 30.) It was at this time that plaintiff's attorney solicited Dr. Shearer to complete a residual functional capacity form which the attorney had specially prepared for plaintiff based on her subjective complaints rather than the objective evidence. Despite the lack of complaints, Dr. Shearer noted in this form, dated some two and a half years later, that plaintiff had diagnoses of chronic pain, systemic lupus erythematosus, migraines, rheumatoid arthritis, fibromyalgia, irritable bowel syndrome, asthma, hepatitis C, anxiety, depression, and Raynaud's syndrome. (Id., tr. at 329.) It is interesting to note, as the ALJ did, that Dr. Shearer stated that plaintiff "had a positive fibromyalgia 18 tender point test in January 2005 (perhaps meaning 2006) but that she had not seen a rheumatologist since 2000." (Id. at 30, 331.) Dr. Shearer felt that plaintiff would be absent from work due to depression or lupus for four or more days per month. (Id. at 332.) The ALJ gave this report limited weight as Dr. Shearer's treatment notes did not support these limits. Furthermore, this report was a check off form which the ALJ was correct in discounting. See Murray v. Heckler, 722 F.2d 499, 501 (9th Cir. 1983) (expressing preference for individualized medical opinions over check-off reports).

The ALJ also noted that plaintiff's credibility was extremely damaged, due in large part to her drug use at various points during the alleged period of disability, which she did not reveal to any of her doctors, and did not admit until the hearing.*fn7 (Id. at 30, 33.) The ALJ relied on plaintiff's history of drug manufacturing during her disability period to show that plaintiff could do significant activity during that time. The ALJ concluded that plaintiff appeared to be exaggerating her symptoms to get her benefits reinstated. (Id. at 33.) The ALJ also explained that he was placing more weight on Dr. Nolan's report because he was a Board Certified Internal Medicine Specialist*fn8 and therefore more experienced in plaintiff's condition than Dr. Shearer, who was a general practitioner.*fn9 (Id. at 31, 33.) The ALJ also referred to Dr. Shearer's October, 2002 notes that plaintiff was much better and did exercises. (Id. at 31, 190.)

In summarizing Dr. Shearer's records, the ALJ pointed out that plaintiff had solicited a letter from this doctor to get her electricity turned on after failing to pay bills, in order to prevent loss of fingers due to the extreme cold and its effects based on her Raynaud's phenomenon. This letter, dated January, 2002, paints plaintiff in worse shape than his treatment notes from that time period. (Id. at 195.) For example, treatment notes from that same date indicate that plaintiff's anxiety had increased but was "fairly well controlled." Although plaintiff described increased back pain, her neurovascular exam was intact, other than tenderness in the lower back. (Id. at 194.) On October 23, 2002, Dr. Shearer reported that plaintiff's low back pain with fibromyalgia was much better. Her prescription narcotic use had also decreased. (Id. at 190.)

Dr. Shearer's own records indicate the objective findings were not as severe as plaintiff alleged. For example, after a car accident in March, 2003 wherein plaintiff hit a pedestrian who ran in front of her car, plaintiff complained of back pain as well as shooting pain down both legs. At first Dr. Shearer thought plaintiff had a herniated disc and planned an MRI which was done in May, 2003. (Id. at 28, 184.) It indicated probable nerve root sheath cyst, mild disc bulge with mild canal stenosis and mild concentric disc bulges with no significant canal or foraminal stenosis, and no herniated disc. In fact, the disc bulge was less prominent than in a previous study dated March, 2000. (Id. at 29, 198.) Furthermore, a previous MRI from 2000 had indicated the nerve sheath cyst had been present since that time. (Id. at 29, 183.) Based on this MRI, Dr. Shearer opined that plaintiff's symptoms were "pretty much stable and fairly quiescent now." (Id. at 29, 183.)

Other records by Dr. Shearer indicate that plaintiff's condition was not severe. See e.g. tr. 319 (hospital discharge record noting history of various ailments but only actual diagnoses were headaches, body aches, fever, right index finger wound); 186 (pain controlled with oxycodone but plaintiff taking too much, asthma bronchitis resolving with abstinence from cigarettes, history of hepatitis C); 188 (nebulizer treatment for asthmatic bronchitis which almost completely resolved wheezing); 189 (inhaler working partially for wheezing but plaintiff encouraged not to smoke).

The ALJ also noted large gaps in treatment records during the time plaintiff was allegedly disabled. For example, in June, 2004, Dr. Shearer prescribed 180 oxycodone for one month; however, plaintiff did not see Dr. Shearer again, according to the record, until June 2, 2005. (Id. at 29.)

Other medical records support the ALJ's reasons. For example, another state agency reviewer, Dr. Westfall, noted on October 10, 2002, that "there was no interim physical medical record and therefore there was insufficient evidence that claimant met or equaled any listing." (Id. at 27, 137.)

On October 26, 2002, plaintiff was in the hospital for migraines. During her stay, she was noted to have normal movements and symmetric reflexes in the lower extremities. Gait was normal. (Id. at 28, 146.)

Another state agency physician evaluated plaintiff's file in January, 2003. Although she did not have the benefit of the entire file, she found plaintiff could do sedentary work with some non-exertional limitations. Dr. Jensen noted medical improvement and limited complaints. The ALJ gave this report weight, but found plaintiff could do more than sedentary work, explaining that Dr. Jensen did not have the entire file at her disposal. (Id. at 28, 169-79.)

"An ALJ may reject a treating physician's opinion if it is based 'to a large extent' on a claimant's self-reports that have been properly discounted as incredible." Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008), citing Morgan v. Comm'r Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999) (citing Fair V. Bowen, 885 F.2d 597, 605 (9th Cir. 1989)). Furthermore, "the ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence." Id.

Historically, the courts have recognized conflicting medical evidence, the absence of regular medical treatment during the alleged period of disability, and the lack of medical support for a doctor's report based substantially on a claimant's subjective complaints as specific, legitimate reasons for disregarding the treating physician's opinion. Flatten, 44 F.3d at 1463-64; Fair v. Bowen, 885 F.2d 597, 604 (9th Cir.1989). The ALJ is not required to accept the opinion of a treating or examining physician if that opinion is brief, conclusory and inadequately supported by clinical findings. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir.2002).

Morehead v. Astrue, 2008 WL 3891464, *5 (E.D. Wash. 2008).

Based on the inconsistencies between plaintiff's subjective complaints, upon which Dr. Shearer appeared to have relied, and the objective records, as well as other medical source opinions, the ALJ's decision to give plaintiff's treating physician limited weight is supported by substantial evidence.

C. Whether the ALJ's Hypothetical to the Vocational Expert Was Inadequate as a Matter of Law

Plaintiff contends that the ALJ erred in posing a hypothetical to the expert that was based on Dr. Eder's RFC assessment as this physician never examined plaintiff. Plaintiff asserts that the hypothetical instead should have included the limitations imposed by Dr. Shearer.

Hypothetical questions posed to a vocational expert must include all the substantial, supported physical and mental functional limitations of the particular claimant. Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir.1995); see Light v. Social Sec. Admin., 119 F.3d 789, 793 (9th Cir.1997). If a hypothetical does not reflect all the functional limitations, the expert's testimony as to available jobs in the national economy has no evidentiary value. DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991). But see Thomas v. Barnhart, 278 F.3d 947 (9th Cir. 2002) (approving hypothetical directing VE to credit specific testimony which VE had just heard); Matthews v. Shalala, 10 F.3d 678 (9th Cir. 1993) (failing to include all limitations in a hypothetical may be harmless error if the ALJ's conclusions are supported by other reliable evidence). While the ALJ may pose to the expert a range of hypothetical questions, based on alternate interpretations of the evidence, substantial evidence must support the hypothetical which ultimately serves as the basis for the ALJ's determination. Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988).*fn10

In this case, the ALJ's hypothetical was propounded after the hearing which had been suspended due to a necessary neurological evaluation and RFC assessment. The ALJ later wrote to the expert with the following hypothetical which was based on Dr. Nolan's February 26, 2006 neurological evaluation and Dr. Eder's ensuing RFC assessment, dated March 17, 2006: plaintiff could lift and carry twenty pounds occasionally, ten pounds frequently, stand or walk for six hours with normal breaks, sit for six hours with normal breaks, unlimited pushing and pulling "except for the way it's listed above,"*fn11 occasionally climb, balance, stoop, kneel, crouch, and crawl, and should avoid extreme cold and fumes, odors, gases, and poor ventilation, and hazards such as unprotected heights and moving machinery. (Id. at 299.)

The expert responded that based on these limitations, plaintiff could do the jobs of office helper, ticket printer tagger, and laundry assorter. (Id. at 298.) The hypothetical is clearly based completely on Dr. Eder's limitations as the ALJ clearly states. (Id. at 31.) Despite less weight allocated to this non-examining physician, the limitations imposed by her were based on Dr. Nolan's report and are actually more restrictive than his assessment. Dr. Nolan imposed no limitations on sitting, walking and standing. (Id. at 347.) Dr. Eder limited plaintiff to six hours for each of these activities. (Id. at 337.) Dr. Nolan limited plaintiff to occasional bending as did Dr. Eder. (Id. at 347, 338.) Dr. Nolan found plaintiff could frequently lift up to twenty pounds and occasionally lift up to forty pounds. Dr. Eder limited plaintiff to lifting up to ten pounds frequently and twenty pounds occasionally.*fn12 (Id. at 337.) It is clear that the ALJ actually used an abundance of caution to impose more restrictions than were found necessary by Dr. Nolan. Therefore, there was no error in relying on a non-examining report when an examining doctor's report would have imposed less restrictions.

The ALJ was not required to rely on Dr. Shearer's more restrictive limitations for the reasons stated in the previous sections. Because the hypothetical to the vocational expert accurately reflected plaintiff's limitations, substantial evidence supports the ALJ's finding in this regard.


Accordingly, IT IS ORDERED that plaintiff's Motion for Summary Judgment is denied, the Commissioner's Cross Motion for Summary Judgment is granted, and judgment is entered for the Commissioner.

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