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Ortega v. Berryhill

United States District Court, S.D. California

April 5, 2018

NANCY A. BERRYHILL, Acing Commissioner of Social Security, Defendant.



         Plaintiff Stella Ruiz Ortega objects to the Report and Recommendation for Order Granting Defendant's Motion for Summary Judgment and Denying Plaintiff's Motion for Summary Judgment (“R & R”). Defendant did not file a response to the objection.[1]For the reasons set forth below, the court adopts the R & R in its entirety, denies Plaintiff's objection, and instructs the Clerk of Court to close the file.

         Legal Standards

         Review of Social Security Determinations

         An unsuccessful applicant for social security disability benefits may seek judicial review of a final agency decision. 42 U.S.C. § 405(g). A reviewing court must affirm the agency's decision if it is supported by substantial evidence and applies the correct legal standards. Id.; Orn v. Astrue, 495 F.3d 625, 630 (9th Cir.2007). “Substantial evidence is more than a mere scintilla but less than a preponderance.” Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir.1998). “Substantial evidence is relevant evidence which, considering the record as a whole, a reasonable person might accept as adequate to support a conclusion.” Flaten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir.1995). “Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.2002).

         Review of the Magistrate Judge's R & R

         A district judge must “make a de novo determination of those portions of the [R & R] to which objection is made.” 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); see United States v. Remsing, 874 F.2d 614, 617 (9th Cir.1989). The district judge “may accept, reject, or modify, in whole or in part, the finding or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b) (1).

         The Objection

         Plaintiff raises a single objection to the R & R: “Whether or not a hypothetical individual may be able to compensate with a non-dominant fully-functional upper extremity to meet an exertional requirement of a given occupation should be a question left to vocational expert testimony.” Here, the hypothetical propounded by the Administrative Law Judge (“ALJ”) to the Vocational Expert (“VE”) limited Plaintiff in her lifting ability to ten pounds.[2] However, Plaintiff claims that her dominant right arm, according to Dr. Smith, is limited to lifting two pounds, even though she is able to compensate for that weakness and lift ten pounds with her left arm. Plaintiff contends that this limitation (i.e. the ability of an individual to compensate when the dominant arm is able to lift two pounds and the other ten pounds) must be resolved by a VE, by means of a hypothetical, and not by means of an ALJ's determination.

         When an ALJ relies on the testimony of a vocational expert, the judge must propound a hypothetical that incorporates all of the medical and vocational limitations of the claimant as set forth in the record. Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999), 180 F.3d at 1101. If a hypothetical fails to reasonably reflect each of the claimant's limitations supported by “substantial evidence, ” the expert's answer has no evidentiary value. Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir.1984); See also Embrey v. Bowen, 849 F.2d 418, 423 (9th Cir.1988).

         The hypotheticals propounded by the ALJ sought to define or categorize Plaintiff's Residual Functional Capacity (“RFC”).[3] A determination of RFC is based, among other things, upon a claimant's ability to perform sedentary work defined as:

Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.

20 C.F.R. §404.1567.

         Here, the ALJ afforded Dr. Smith's testimony “significant probative weight.” (AR 31). Dr. Smith evaluated Plaintiff and opined that Plaintiff had “limited use of the right arm” and noted a lifting restriction of two pounds with the right arm. (AR 656). Despite the right arm limitation, Plaintiff retained the ability “to perform fine and gross movements effectively.” AR 29. Notably, Plaintiff does not explain how the ALJ's RFC determination that Plaintiff could lift no more than ten pounds is not supported by substantial evidence. The record does not indicate that Plaintiff had any limitations on her left arm. Furthermore, Dr. Smith opined that Plaintiff could return to work as of October 2011, with limited use of the right hand and limitations in lifting, pulling, and pushing. (AR 656). Plaintiff also testified that she “mostly” used her left hand to lift and carry things, and used her right hand to “steady[]” her left hand (AR 66). Plaintiff has the initial burden to show that the limitation in her right arm rises to a level that reasonably may disqualify her from performing sedentary work, consisting of occasionally lifting up to ten pounds. See Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (claimant carries burden to present objective medical evidence of limitation). Plaintiff's testimony and the medical record indicate that the ALJ accounted for Plaintiff's impairments by considering ...

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