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Collins v. Astrue


July 27, 2009


The opinion of the court was delivered by: Rosalyn M. Chapman United States Magistrate Judge


Plaintiff Terri L. Collins filed a complaint on December 28, 2007, seeking review of the decision denying her application for disability benefits. On July 16, 2008, the Commissioner answered the complaint, and the parties filed a joint stipulation on September 16, 2008.



On April 17, 2003 (protective filing date), plaintiff filed a claim for disability benefits under the Supplemental Security Income program of Title XVI of the Social Security Act ("the Act"), 42 U.S.C. § 1382(a), claiming an inability to work since April 11, 2003, due to fibromyalgia. Certified Administrative Record ("A.R.") 99-101, 103, 109. The plaintiff's application was initially denied on November 6, 2003, and was denied again on March 4, 2004, following reconsideration. A.R. 51-62. The plaintiff then requested an administrative hearing, which was held on April 4, 2005, before Administrative Law Judge Joseph Schloss ("ALJ Schloss"). A.R. 19-48, 65. On April 29, 2005, ALJ Schloss issued a decision finding plaintiff is not disabled. A.R. 11-17. The plaintiff appealed that decision to the Appeals Council, which denied review on July 28, 2005. A.R. 4-10.

On August 22, 2005, plaintiff filed her first complaint seeking review of the Commissioner's decision denying her application for disability benefits, Collins v. Astrue, EDCV 05-0751-RC ("Collins I"),*fn1 and on December 7, 2006, this Court granted plaintiff's request for relief and remanded the matter to the Social Security Administration under 42 U.S.C. § 405(g), sentence four. A.R. 349-66. The Appeals Council, in turn, remanded the matter for further administrative proceedings,*fn2 A.R. 367-70, and on June 19, 2007, Administrative Law Judge Jay E. Levine ("the ALJ") held a new administrative hearing. A.R. 954-76. On October 11, 2007, the ALJ issued a decision finding plaintiff is not disabled, A.R. 325-35, and that decision is now before this Court for review.


The plaintiff, who was born on May 9, 1967, is currently 42 years old. A.R. 22, 99, 395. She has attended two or three years of college, and has previously worked as a bus driver, secretary and hair braider. A.R. 23-26, 110, 115, 118-24, 401-08.

This Court, in its Collins I decision, summarized the relevant medical evidence as follows:

On September 25, 2002, R. Prakash, M.D., a cardiologist, examined plaintiff and diagnosed her with hypertension, tiredness, sleep problems, and anemia, and prescribed medication and recommended a low fat diet and exercise. Dr. Prakash also obtained a doppler echocardiogram, which was consistent with possible mitral valve prolapse, but unremarkable for ischemic heart disease. [¶] On April 9, 2003, Rana A. Bahl, M.D., examined plaintiff and diagnosed her as having coronary artery disease, angina, hypertension, early congestive heart failure, and arrhythmia. A stress test revealed equivocal changes for ischemia with no evidence of angina or arrhythmia, and an ECG was abnormal. An echocardiogram performed April 18, 2003, revealed a left ventricular ejection fraction of 68% and trace pulmonic regurgitation. On December 23, 2003, and January 16, 2004, plaintiff had additional ECGs, both of which were abnormal.

[¶] On April 11, 2003, plaintiff was admitted to Doctor's Hospital Medical Center of Montclair with complaints of recurrent atypical chest pain. Chest x-rays taken April 11, 2003, showed no active cardiopulmonary disease, and an ECG obtained April 13, 2003, also was normal. Plaintiff was discharged from the hospital on April 15, 2003, with diagnoses of atypical chest pain, hypertension, which was controlled with medication, and stable degenerative joint disease. [¶] On April 16, 2003, Dee Beng Lim, M.D., examined plaintiff and diagnosed her with fibromyalgia, noting plaintiff has multiple tender points. Dr. Lim treated plaintiff for fibromyalgia and also diagnosed her with chronic fatigue syndrome, depression, insomnia, tension headaches, trapezius and lumbosacral myofascitis, costochondritis, hypertension, obesity, and angina, among other conditions. On May 6, 2003, Dr. Lim opined plaintiff had been permanently disabled since 2002 due to fibromyalgia and chronic fatigue syndrome. On June 19, 2003, Dr. Lim prescribed multiple trigger point injections to plaintiff. On July 24, 2003, Dr. Lim opined plaintiff had fibromyalgia since 1994. Dr. Lim found plaintiff has constant tenderness in her ankles and fingers, paravertebral muscle spasms, paresthesia of her fingers and toes, is limited in her ability to reach, handle, and finger, has trouble walking, and needs an assistive device to walk longer than 10 minutes. [¶] On August 17, 2003, plaintiff was admitted to Pomona Valley Hospital Medical Center, where Dr. Lim examined plaintiff and diagnosed her with atypical chest pain, fibromyalgia, hypertension, and possible myocardial ischemia (not shown on the electrocardiogram). ECGs performed August 17 and August 18, 2003, were abnormal; however, a chest CT scan and chest x-ray done on August 17, 2003, were normal. On August 18, 2003, Dr. Bahl examined plaintiff and diagnosed her with coronary artery disease and unstable angina with hypertension. On the same date, Dr. Bahl performed a cardiac catheterization and angiogram procedure on plaintiff, which was normal, and plaintiff was discharged from the hospital. [¶] . . . [¶] On April 24, 2004, Dr. Lim opined plaintiff has fibromyalgia that meets the American Rheumatological criteria for the disease,*fn3 hypertension, gastroesophageal reflux disease, and anxiety, and her symptoms include chronic pain from head to toe, multiple tender points, nonrestorative sleep, morning stiffness, muscle weakness, subjective swelling, irritable bowel syndrome, frequent severe headaches, temporomandibular joint dysfunction, numbness and tingling, dysmenorrhea, anxiety, panic attacks, depression, mitral valve prolapse, and chronic fatigue syndrome. Dr. Lim found plaintiff's pain is precipitated by changing weather, fatigue, movement/overuse, stress, cold, hormonal changes and being in a static position; her pain is frequently sufficiently severe to interfere with her attention and concentration; and she has a severe limitation in her ability to deal with work-related stress. Dr. Lim opined plaintiff can occasionally lift up to 10 pounds and bend and twist at the waist; can sit for 20 minutes at a time and for less than 2 hours in an 8-hour workday; can stand for 30 minutes at a time, walk for less than one block without resting or experiencing severe pain, can stand and/or walk for less than 2 hours in an 8-hour day, and must use a cane or other assistive device; and can use her arms to perform such activities as reaching, grasping, and fine manipulations for only 5% of the workday. Dr. Lim also opined plaintiff needs to shift positions at will and must walk for 5 minutes every 20 minutes. Furthermore, Dr. Lim opined plaintiff must lie down at unpredictable intervals during the work day and must elevate her legs at least 90 degrees with prolonged sitting 3-4 times a day. Finally, Dr. Lim opined plaintiff's condition is likely to produce good and bad days, and she is likely to miss more than 3 days of work a month due to her condition. [¶] On June 17, 2005, Dr. Lim noted he has treated plaintiff's fibromyalgia with "various trigger points at sub-occipital, cervical paraspinals, trapezius, levator scapulae, ilio-lumbars and sacro-iliacs, lateral epicondyles, sternal borders, iliac crests, [and] both knees[,]" and plaintiff also has hypertension, chronic fatigue syndrome, irritable bowel syndrome, and severe anxiety and depression. Dr. Lim further noted plaintiff has been treated with multiple trigger point injections and a course of physical therapy. Further, Dr. Lim noted that plaintiff's pain level is always "10/10" and she requires morphine for a few hours of pain relief, and plaintiff also takes numerous other medications, including Zelnorm, Avinza, Aciphex, Baclofen, Motrin, Zestril, Verapamil, Ativan, Klonopin, Cymbalta, and Vicodin ES. Dr. Lim opined plaintiff "is unable to do any kind of work because of her pain and fatigue. She can not lift more than 10 [pounds], [she is] unable to sit for more than 15 minutes, [she] can not concentrate because of severe anxiety-depression [and s]he could definitely not perform her old profession of being a secretary or a hairdresser." Finally, Dr. Lim stated he is trying to refer plaintiff to a rheumatologist and pain management specialist. [¶] Medical expert Joseph C. King, M.D., an internist, testified at the administrative hearing that plaintiff has hypertension, which is controlled, costochondritis, a history of fibromyalgia, and a history of mild anemia, and that none of her conditions meets or equals any listed impairment. Dr. King opined plaintiff has "too much medication in her system at one time and . . . apparently is dependent on this medicine now. . . ." With regard to plaintiff's fibromyalgia, Dr. King opined plaintiff has "only 10 trigger points that I could find [though a]t one time she had 14 trigger points." Dr. King also opined fibromyalgia usually involves certain tender points and "doesn't involve the whole body from the feet to the head[,]" and plaintiff has "too [many] symptoms to go with the diagnosis of fibromyalgia."

Collins I at 3:4-11:13 (footnotes and citations omitted; footnote added).

Between July 8, 2005, and January 13, 2006, plaintiff received treatment at the Hi-Desert Family Health Clinic, where she was diagnosed with degenerative disc disease, lupus, fibromyalgia and hypertension, among other problems.*fn4 A.R. 683-725. Thoracic spine x-rays taken January 6, 2006, showed modest degenerative changes with spurring at the lower levels anteriorly, and lumbosacral spine x-rays taken the same day showed modest levoscoliosis, narrowing of the L3-L4 disc space, and moderate tiny anterior spurs suggestive of degenerative changes. A.R. 685-86.

The plaintiff was hospitalized at St. Bernardine Medical Center between September 21 and 23, 2006, and diagnosed with chest pain, hypertension, mitral valve prolapse, irritable bowel syndrome, and fibromyalgia. A.R. 775-864. During this hospitalization, plaintiff was examined by several physicians, including Shuang Bai, M.D. A.R. 791-92, 912-13. Diagnostic testing included a normal chest x-ray, abnormal ECGs, and an exercise stress test, which revealed no exercise-induced chest pain or arrhythmias and normal hemodynamic response to exercise. A.R. 831-32, 834, 850, 855-56. Additionally, a lumbar spine CT scan demonstrated circumferential disc bulging and facet arthropathy with mild spinal stenosis at L3-L4, circumferential disc bulging and bilateral facet arthropathy with moderate spinal stenosis at L4-L5, and mild circumferential disc bulging at L5-S1. A.R. 829-30, 907-08.

Dr. Bai continued to treat plaintiff through June 6, 2007, diagnosing her with fibromyalgia, obesity and hypertension, among other conditions. A.R. 883-95. On March 16, 2007, Dr. Bai opined plaintiff has been unable to work since April 15, 2003. A.R. 923-26. Dr. Bai further opined: plaintiff can sit for 0-2 hours at a time and 0-2 hours in an 8-hour day because her legs lock up, she stiffens up, and its painful for her to move; plaintiff can walk for 0-2 hours at a time and 0-2 hours in an 8-hour day, and she uses a cane to get around; plaintiff is restricted in using her hands/fingers and feet for repetitive movements due to her fibromyalgia; cold, damp and heat make plaintiff's body hurt; plaintiff can occasionally lift and/or carry up to 10 pounds, balance, stoop, kneel, crouch, crawl, and reach; and plaintiff can never climb. A.R. 924-25. Finally, Dr. Bai found plaintiff is depressed and is taking depression medication, which affects her daily activities. A.R. 926.

Between March 30 and April 2, 2007, plaintiff was hospitalized at Community Hospital of San Bernardino, where she was diagnosed with chest pain, new onset Type II diabetes mellitus, chronic back pain, fibromyalgia and a history of ventral hernia repair. A.R. 865-81, 897-900.

On April 23, 2007, Young A. Suk, M.D., examined plaintiff, diagnosed her with degenerative lumbar spinal disease and disc bulging at L3 through S1, hypertension, type II diabetes mellitus, obesity, fibromyalgia, and mitral valve prolapse, and recommended lumbar epidural steroid injections. A.R. 752-57, 902-05. On May 16, 2007, plaintiff had a lumbar epidural steroid injection. A.R. 735-51.

On June 6, 2007, Nicholas N. Lin, M.D., an internist, examined plaintiff, diagnosed her with fibromyalgia, diabetes mellitus, irritable bowel syndrome, hypertension, mitral valve prolapse (by history), and a history of depression, and concluded plaintiff can: lift or carry 20 pounds occasionally and 10 pounds frequently; stand or walk for 6 hours in an 8-hour workday with appropriate breaks; sit for 6 hours in an 8-hour workday; perform fine and gross manipulation; occasionally bend, stoop, crouch, kneel, climb stairs, push/pull, operate a motor vehicle, and be exposed to moving mechanical parts, extreme cold and extreme heat; frequently reach, handle, finger, feel, operate foot controls, be exposed to humidity, dusts, odors, fumes, pulmonary irritants, and vibrations; be around moderate noise; and never work at unprotected heights. A.R. 927-41. Dr. Lin noted plaintiff uses a cane for prolonged ambulation, which is medically necessary, and plaintiff can walk only half a block without a cane. A.R. 934.



The Court, pursuant to 42 U.S.C. § 405(g), has the authority to review the Commissioner's decision denying plaintiff disability benefits to determine if his findings are supported by substantial evidence and whether the Commissioner used the proper legal standards in reaching his decision. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009); Bray v. Astrue, 554 F.3d 1219, 1222 (9th Cir. 2009).

"In determining whether the Commissioner's findings are supported by substantial evidence, [this Court] must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001). "Where the evidence can reasonably support either affirming or reversing the decision, [this Court] may not substitute [its] judgment for that of the Commissioner." Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007), cert. denied, 128 S.Ct. 1068 (2008); Bray, 554 F.3d at 1222.

The claimant is "disabled" for the purpose of receiving benefits under the Act if she is unable to engage in any substantial gainful activity due to an impairment which has lasted, or is expected to last, for a continuous period of at least twelve months. 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 416.905(a). "The claimant bears the burden of establishing a prima facie case of disability." Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996).

This Court set forth the Commissioner's five-step sequential evaluation process in Collins I, and there is no need to again explain that process. Applying the five-step sequential evaluation process, the ALJ found plaintiff has not engaged in substantial gainful activity since her application date of April 17, 2003. (Step One).

The ALJ then found plaintiff has the severe combinations of: "mild degenerative disc and joint disease of the lumbar spine, controlled hypertension, noninsulin[-]dependent diabetes mellitus [Type] II, mild mitral valve prolapse, mild (level I) obesity, history of fibromyalgia, history of irritable bowel syndrome, costochondritis, and depressive disorder, not otherwise specified" (Step Two); however, she does not have an impairment or combination of impairments that meets or equals a Listing. (Step Three). The ALJ next determined plaintiff cannot perform her past relevant work. (Step Four). Finally, the ALJ determined plaintiff can perform a significant number of jobs in the national economy; therefore, she is not disabled. (Step Five).


A claimant's residual functional capacity ("RFC") is what she can still do despite her physical, mental, non-exertional, and other limitations. Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). Here, the ALJ found plaintiff has the RFC to perform at least sedentary work,*fn5 "except for very mild mental limitations[,]" and further found plaintiff:

[m]entally, . . . has never lost the ability to understand, remember and carry out simple instructions constantly, and complex instructions occasionally to frequently, with customary breaks[;] respond to changes in the workplace setting[;] maintain persistence and pace in a normal work place setting[;] [and] interact appropriately with supervisors, co-workers, and the public occasionally to frequently[.]

A.R. 331. However, plaintiff contends the ALJ's RFC determination is not supported by substantial evidence because the ALJ did not properly consider the opinions of her treating physician, Dr. Bai,*fn6 did not properly address the side effects of her many medications, and failed to properly develop the record or consider plaintiff's obesity.

A. Treating Physician's Opinion

The medical opinions of treating physicians are entitled to special weight because the treating physician "is employed to cure and has a greater opportunity to know and observe the patient as an individual." Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987); Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). Therefore, the ALJ must provide clear and convincing reasons for rejecting the uncontroverted opinion of a treating physician, Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008), and "[e]ven if [a] treating doctor's opinion is contradicted by another doctor, the ALJ may not reject this opinion without providing 'specific and legitimate reasons' supported by substantial evidence in the record." Reddick, 157 F.3d at 725; Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008).

On March 16, 2007, Dr. Bai opined plaintiff had been unable to work since April 15, 2003, and is "permanently disabled" because: she can sit for only 0-2 hours at a time and 0-2 hours in an 8-hour day; she can walk for only 0-2 hours at a time and 0-2 hours in an 8-hour day, and she uses a cane to get around; she is restricted in using her hands/fingers and feet for repetitive movements due to her fibromyalgia; cold, damp and heat make her body hurt; she can occasionally lift and/or carry up to 10 pounds, balance, stoop, kneel, crouch, crawl, and reach; and she can never climb. However, the ALJ rejected Dr. Bai's opinions for several reasons,*fn7 including that Dr. Bai "accepted the [plaintiff's] assertion of fibromyalgia without any supporting clinical findings and went on to prescribe extraordinary amounts of narcotic medication without obtaining a rheumatology consultation. . . ." A.R. 333; see also A.R. 330 ("The clinical notes of the current primary care physician, Shuang Bai, M.D., . . . indicate the [plaintiff] initially reported a history of chronic fibromyalgia, chronic low back pain, and high blood pressure, but other than the noted studies of the spine and the pain evaluation, which produced nothing to support the diagnosis of fibromyalgia and very little to support the complaints of back pain and sciatica, there is no indication that the treating sources contemplate any further evaluation or treatment other than to continue to prescribe rather high doses of morphine and Norco."). This finding is supported by substantial evidence in the record. Indeed, beyond a single vague and inadequate reference to unspecified "tender points," A.R. 392, Dr. Bai's rather sparse medical records make no mention of any of the diagnostic criteria of fibromyalgia, which this Court discussed in detail in Collins I. Since an ALJ may properly reject a treating physician's opinion that is clearly inconsistent with the medical records, Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005), as well as "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[,]"*fn8 Tommasetti, 533 F.3d at 1041 (citations omitted); Bray, 554 F.3d at 1228, this is a specific and legitimate reason for rejecting Dr. Bai's opinions.

The ALJ also rejected Dr. Bai's opinions because they were inconsistent with the opinions of examining physician Dr. Lin, "who had the benefit of reviewing the medical evidence of record [and] found the [plaintiff] able to perform an essentially full range of light work." A.R. 333. This reason also is a specific and legitimate reason supported by substantial evidence in the record for rejecting Dr. Bai's opinion to the extent it contradicted the ALJ's RFC determination. Batson v. Comm'r of the Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003).

B. Side Effects of Medication

In determining a claimant's limitations, the ALJ must consider all factors that might have a significant impact on an individual's ability to work, including the side effects of medications. Erickson v. Shalala, 9 F.3d 813, 817-18 (9th Cir. 1993); Varney v. Sec'y of Health & Human Servs., 846 F.2d 581, 585 (9th Cir. 1988). Thus, when a claimant testifies she is experiencing a side effect known to be associated with a particular medication, the ALJ may disregard the testimony only if he "support[s] that decision with specific findings similar to those required for excess pain testimony, as long as the side effects are in fact associated with the claimant's medication(s)." Varney, 846 F.2d at 585.

The plaintiff contends the ALJ ignored her treating physicians' opinions regarding the side effects of the many medications she takes, Jt. Stip. at 5:23-24, contending the ALJ failed to consider statements by Drs. Lim and Bai. First, plaintiff claims the ALJ did not consider Dr. Lim's response to a question asking him to "[i]dentify the side effects of any medication which may have implications for working." Jt. Stip. at 3:24-4:25; see A.R. 312. However, Dr. Lim merely responded to that question by stating: "Morphine, codin [sic] Lorazepam, [and] Robaxin." A.R. 312. Since Dr. Lim's response merely listed medications, that response does not state plaintiff suffers side effects from any medications, and the ALJ did not need to consider it. Similarly, plaintiff claims the ALJ did not consider Dr. Bai's statement that plaintiff is "aware of the side effect[s] of [morphine sulfate][,]" see A.R. 887, as he must. Jt. Stip. at 5:7-12. But once again, Dr. Bai's statement does not show plaintiff is experiencing side effects from a particular medication, but only shows she has an awareness of the possible side effects a medication might cause. Therefore, neither physician's statement provides a basis for reversing the ALJ's decision.

On a form dated January 16, 2006, plaintiff indicated she takes Lorazepam,*fn9 which makes her tired, and Seroquel,*fn10 which makes her groggy the next day. A.R. 433. At the administrative hearing in 2007, plaintiff also testified that medication she takes causes her memory problems and tiredness.*fn11 A.R. 966. The ALJ considered plaintiff's complaints about these side effects to medication, and rejected them, holding:

[T]he consultative psychiatric examiners found no indication of any serious cognitive impairments, the most recent psychiatric consultant clearly noting that the reported and observed problems were within normal limits and at most mild in severity[,] even though fully aware of the [plaintiff's] use of narcotic medication. I can only conclude then that [plaintiff] has no significant medication side-effects since she has [been] maintained on such medication for a prolonged period of time without any significant complaint being noted in the treating source records. Indeed, the [plaintiff] drove herself to the two most recent consultative examinations with no indications of any physical or mental problems, which is quite consistent with the impression she is and has been able to function on a day to day basis at least within the limits found herein above.

A.R. 333-34. Since plaintiff has not identified any portion of the medical record showing she complained to any physician about the side effects she now identifies, the ALJ's findings are supported by substantial evidence in the record; thus, there is no basis to set aside the ALJ's RFC assessment based on plaintiff's complaints of side effects. See Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006) (ALJ did not err in assessing claimant's RFC when claimant did not report alleged side effect of fatigue to any doctor); Miller v. Heckler, 770 F.2d 845, 849 (9th Cir. 1985) (ALJ properly rejected claimant's complaint that his use of prescription narcotics disabled him when claimant "produced no clinical evidence showing that narcotics use impaired his ability to work."). Moreover, since plaintiff does not challenge the ALJ's adverse credibility determination, this finding also provides a sufficient basis to reject plaintiff's testimony regarding side effects. Thomas v. Barnhart, 278 F.3d 947, 960 (9th Cir. 2002).

C. Duty to Develop the Record

The plaintiff claims, despite the voluminous medical record, that the ALJ failed to fully and fairly develop the administrative record because he did not have plaintiff examined by a rheumatologist.*fn12 Jt. Stip. at 18:8-19:23, 21:24-26; see Smolen, 80 F.3d at 1288 ("'In Social Security cases, the ALJ has a special duty to fully and fairly develop the record and to assure that the claimant's interests are considered.'" (citation omitted)); Widmark v. Barnhart, 454 F.3d 1063, 1068 (9th Cir. 2006) (same). However, "the Commissioner 'has broad latitude in ordering a consultative examination[,]'" Reed v. Massanari, 270 F.3d 838, 842 (9th Cir. 2001) (quoting Diaz v. Sec'y of Health & Human Servs., 898 F.2d 774, 778 (9th Cir. 1990)), which is a discretionary decision. Sims v. Apfel, 224 F.3d 380, 381-82 (5th Cir. 2000) (per curiam). Rather, consultative examinations are required only "when such an evaluation is necessary for [the ALJ] to make an informed decision." Haley v. Massanari, 258 F.3d 742, 749 (8th Cir. 2001); Holladay v. Bowen, 848 F.2d 1206, 1209 (11th Cir. 1988).

Here, the ALJ referred plaintiff for multiple consultative examinations to assist him in properly assessing plaintiff's physical and mental limitations, but did not seek a consultative examination by a rheumatologist because "[t]he record before the ALJ was neither ambiguous nor inadequate to allow for proper evaluation of the evidence" on fibromyalgia. Mayes, 276 F.3d at 460. Thus, the ALJ did not fail to properly develop the medical record.

D. Obesity

In Celaya v. Halter, 332 F.3d 1177, 1182 (9th Cir. 2003), the Ninth Circuit found that an ALJ committed legal error in failing to consider a claimant's obesity, even though the claimant did not specifically raise the issue. Id. at 1182. However, Celaya is inapposite here since the ALJ determined plaintiff's obesity is a severe impairment, A.R. 329, and he considered her obesity in determining she is not disabled. Indeed, the record contains absolutely no evidence showing plaintiff's obesity*fn13 exacerbates her other impairments, Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005); see also SSR 02-1p, 2000 WL 628049, *4 ("There is no specific level of weight or BMI that equates with a 'severe' or a not severe' impairment. Neither do descriptive terms for levels of obesity (e.g., "severe," "extreme," or "morbid" obesity) establish whether obesity is or is not a "severe" impairment for disability program purposes."), or has any effect on her ability to perform basic work activities. Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). Thus, "the ALJ adequately considered [plaintiff's] obesity in his RFC determination." Burch, 400 F.3d at 684.


At Step Five, the burden shifts to the Commissioner to show the claimant can perform other jobs that exist in the national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074-75 (9th Cir. 2007); Widmark, 454 F.3d at 1069. There are two ways for the Commissioner to meet this burden: "(1) by the testimony of a vocational expert, or (2) by reference to the Medical Vocational Guidelines ["Grids"] at 20 C.F.R. pt. 404, subpt. P, app. 2."*fn14 Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999); Widmark, 454 F.3d at 1069.

Regarding the testimony of a vocational expert, any hypothetical question posed to a vocational expert must consider all of the claimant's limitations, Thomas, 278 F.3d at 956; Lewis v. Apfel, 236 F.3d 503, 517 (9th Cir. 2001), and "[t]he ALJ's depiction of the claimant's disability must be accurate, detailed, and supported by the medical record." Tackett, 180 F.3d at 1101. Here, the ALJ asked vocational expert Sandra Fioretti the following hypothetical question:

Assume a hypothetical individual claimant's age, education, prior work experience. Assume this person is restricted to . . . occasional climbing, balancing, stooping, kneeling, crouching, crawling, no production quotas that require piecework type jobs. Also, no forceful gripping. . . .

[A]ssume . . . a sedentary range of work. Is there work such a person could perform?

A.R. 973-74. The vocational expert responded that such an individual could work as a charge account clerk, Dictionary of Occupational Titles ("DOT")*fn15 no. 205.367-014, with 1,000 job positions regionally and 25,000 nationally, or an assembler in buttons and notions, DOT no. 734.687-018, with 1,200 positions regionally and 16,000 nationally, and that this testimony is consistent with the DOT. A.R. 974-75. However, plaintiff contends the ALJ's hypothetical question was incomplete since it did not include information about plaintiff's side effects from medications and the effects of plaintiff's obesity. Jt. Stip. at 25:27:3, 27:15-17.

There is no merit to this claim since the ALJ properly found plaintiff has no side effects from her medications, and plaintiff's obesity does not exacerbate her other impairments or her ability to perform basic work activities. See Greger, 464 F.3d at 973 (9th Cir. 2006) ("The ALJ . . . 'is free to accept or reject restrictions in a hypothetical question that are not supported by substantial evidence.'" (quoting Osenbrock v. Apfel, 240 F.3d 1157, 1164-65 (9th Cir. 2001)); Copeland v. Bowen, 861 F.2d 536, 540 (9th Cir. 1988) ("[E]xclusion of some of a claimant's subjective complaints in questions to a vocational expert is not improper if the [Commissioner] makes specific findings justifying his decision not to believe the claimant's testimony about claimed impairments such as pain."). Thus, the vocational expert's testimony constitutes substantial evidence to support the ALJ's Step Five determination that plaintiff can perform work in the national economy and is not disabled. Bayliss, 427 F.3d at 1217; Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175-76 (9th Cir. 2008).


IT IS ORDERED that: (1) plaintiff's request for relief is denied; and (2) the Commissioner's decision is affirmed, and Judgment shall be entered in favor of defendant.

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