Opinion
Civil No. 05cv0638-BEN(POR).
December 27, 2005
REPORT AND RECOMMENDATION DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
I. Introduction
Marsha L. Claydon ("Plaintiff") brought this action under 42 U.S.C. §§ 138(c)(3) and 405 (g) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") in a claim for Supplemental Security Income ("SSI") benefits under Title XVI of the Social Security Act ("Act"). The Commissioner denied Plaintiff's claim for SSI after the Administrative Law Judge ("ALJ") determined that Plaintiff was not "disabled" as defined in the Act. Plaintiff contends that the Commissioner's decision should be reversed because: (1) the ALJ erred in determining that Plaintiff's past work as an office secretary, of less than three months duration, constituted past relevant work; (2) the ALJ failed to evaluate Plaintiff's ability to perform all of the duties of her former work as an office secretary; (3) the ALJ erred when he determined that Plaintiff possessed transferrable skills from her position as an office secretary because he failed to elicit specific testimony from the vocational expert; and (4) the ALJ improperly relied upon vocational expert testimony based on an incomplete hypothetical question. (Docket No. 8 at 4, 7, 11-12, 14.)
42 U.S.C. § 1383(c)(3) provides:
The final determination of the Commissioner of Social Security after a hearing [to determine eligibility or amount of benefits] shall be subject to judicial review as provided in section 405(g) of this title. . . .
42 U.S.C. § 405(g) provides:
Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party . . . may obtain a review of such decision by a civil action . . . brought in the district court of the United States. . . . The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive.
In reply, the Commissioner asserted that the ALJ's decision should be affirmed because: (1) substantial evidence supports the ALJ's finding that Plaintiff's work as an office secretary constituted past relevant work; (2) the ALJ properly determined that Plaintiff could return to her former work as generally performed; (3) Plaintiff possessed transferable skills and was able to perform other work; and (4) the vocational expert's testimony relied upon by the ALJ was sufficient. (Docket No. 12 at 7-10.) After careful consideration of the pleadings, the administrative record and the law, the Court recommends that Plaintiff's motion for summary judgment be DENIED and that Defendant's cross-motion for summary judgment be GRANTED.
Defendant's arguments (1)-(3) are included together in Defendant's Cross-Motion under heading "A." (Docket No. 12 at 7-10.)
II. Procedural History
Plaintiff filed an application for SSI with the Social Security Administration on July 19, 2002. (Court Transcript at 204-05.) Her application was denied on August 9, 2002. (CT at 3, 206.) Plaintiff subsequently filed a Request for Reconsideration that was denied on October 24, 2002. (CT at 3, 207.) On December 27, 2002, Plaintiff requested an administrative hearing before an ALJ to consider her application a third time. (CT at 15.) An ALJ held a hearing on October 24, 2003. (CT at 15.) On November 26, 2003, the ALJ issued a written decision denying Plaintiff's application. (CT at 15-22.) On December 17, 2003, Plaintiff sought review by the Appeals Council. (CT at 11.) On January 26, 2005, the Appeals Council denied Plaintiff's request for review. (CT at 5.) The ALJ's decision then became the final decision of the Commissioner of Social Security.On March 30, 2005, after exhausting all administrative remedies, Plaintiff filed a civil complaint in this Court to obtain judicial review of the Commissioner's final decision. (Docket No. 1.) District Judge Roger T. Benitez referred the matter to Magistrate Judge Louisa S Porter for a Report and Recommendation. The Commissioner filed an answer on May 26, 2005. (Docket No. 4.) On July 26, 2005, Plaintiff filed a motion for summary judgment. (Docket No. 7.) On September 13, 2005, the Commissioner filed a cross motion for summary judgment. (Docket No. 11.)
III. Factual Background
A. Plaintiff's Background and Testimony
Plaintiff was born on January 28, 1951. (CT at 16.) She finished high school and obtained a certified nurse assistance certificate. (CT at 16.) Plaintiff alleges disability as the result of a left knee injury that she suffered after a fall in her kitchen on December 12, 2001. (CT at 185.) She claims that the her injury renders her unable to stoop, kneel, or bend the left knee. (CT at 27.) Additionally, Plaintiff claims that she is unable to stand for long periods of time because of swelling and pain in her left knee. (CT at 27.)
Plaintiff testified at the administrative hearing on October 24, 2003. (CT at 27.) She related the history of her injury and stated that she has not worked since her injury occurred. (CT at 29.) She was living with her fiancé at the time of the hearing. (CT at 31.)
Plaintiff stated she could stand for no more than half an hour because her knee would start to swell up. (CT at 33.) She also stated that she could not sit for more than half an hour without having to elevate her leg because of the swelling. (CT at 33.) In addition to swelling, Plaintiff complained of discoloration, numbness, and tingling in her left knee. (CT at 34.) Plaintiff expressed that she was able to perform some chores, but that her fiancé did most of the work around the house. (CT at 35, 37.) Plaintiff also claimed that she could perform limited grocery shopping, but that she mostly relied upon her fiancé to buy her groceries. (CT at 37.) Plaintiff was uncertain how much weight she could lift, but stated that her purse was the heaviest thing that she carried and that it was very hard for her to lift a plastic gallon of milk. (CT at 38.) Additionally, she stated that she could not drive a car with a standard transmission. (CT at 36.) However, Plaintiff also discussed the medications that she was taking, including Vicodin, and said that they helped her condition and that she suffered no adverse reactions as a result of the medication. (CT at 30-31.)
B. Medical Evidence Presented
1. Palomar Hospital
Plaintiff visited Palomar Hospital on December 12, 2001, the day that she injured her left knee. (CT at 133.) Plaintiff was able to walk, but reported significant pain to her left knee with ambulation. (CT at 133.) During examination, Plaintiff complained of some pain with flexion, but was able to fully flex her knee. (CT at 135.) An x-ray of the knee was done and was interpreted as negative, with no evidence of fracture, discoloration, or effusion. (CT at 135.) Plaintiff was prescribed the drug Vicodin, which provided excellent pain relief, and was placed in a knee immobilizer and given crutches. (CT at 135.)
2. Kaiser Permanente Hospital
Plaintiff began receiving treatment at a Kaiser facility on December 21, 2001. (CT at 171.) Plaintiff requested a letter from her treating physician, Rick Pantarotto, M.D., to summarize her left knee injury, subsequent evaluation, diagnosis, and prognosis. (CT at 176.) Dr. Pantarotto noted that since her injury, Plaintiff had "developed a painful inability to flex the knee along with a mottled appearance and decreased sensation to light touch along the knee and anterior distal thigh." (CT at 176.) The department of orthopedics diagnosed Plaintiff with arthrofibrosis and reflex sympathetic dystrophy. (CT at 176.)
Plaintiff was sent to physical therapy, which proved unsuccessful. (CT at 176.) Subsequently, Plaintiff underwent a lumbosacral MRI which was "effectively negative," and a bone scan showed "only mild degenerative joint disease of the left knee." (CT at 176.) At that time, Plaintiff was using a crutch and was approved for light duty work. (CT at 176.) Further tests were not conducted because Plaintiff lost her Kaiser insurance. (CT at 176.) Dr. Pantarotto indicated that although a permanent disability might be the long-term prognosis, he was unable to comment on Plaintiff's present condition. (CT at 177.) Additionally, Plaintiff stated to Dr. Pantarotto that she had been looking for work, albeit unsuccessfully. (CT at 176.) 3. Paul C. Milling, M.D.
Plaintiff visited Dr. Milling on April 30, 2003, for treatment of her left knee. (CT at 185.) Plaintiff complained of pain, swelling and a cold and clammy feeling in her knee. (CT at 185.) Plaintiff stated that her knee was totally stiff and that she could not move it. (CT at 184.) However, on May 28, 2003, Dr. Milling examined Plaintiff while Plaintiff was under anesthesia and was able to manipulate and fully flex Plaintiff's knee without any stress being applied to it. (CT at 184.) Dr. Milling noted that there was "no crackling of adhesions or any sign of resistance" when he flexed the knee. (CT at 184.)
Dr. Milling also performed diagnostic arthroscopy on Plaintiff's left knee. (CT at 184.) The arthroscope revealed that the "patella, medial and lateral femoral condyle, medial and lateral tibial plateau, medial and lateral meniscus and anterior cruciate ligament were all normal." (CT at 184.) Additionally, there was no sign of synovitis or scar tissue. (CT at 184.) On June 23, 2003, after receiving a Social Security disability form regarding Plaintiff, Dr. Milling stated in his notes that Plaintiff was "not disabled." (CT at 182.)
4. Walter W. Doren, M.D.
Dr. Doren testified at the administrative hearing as a medical expert. (CT at 39.) He discussed Plaintiff's reported physical problems regarding her knee, and noted the lack of objective medical evidence to support Plaintiff's claims. (CT at 42.) Specifically, Dr. Doren observed that the MRI, x-rays, and diagnostic arthroscopy conducted on Plaintiff's knee were all negative, and that the doctor who performed Plaintiff's diagnostic arthroscopy stated that she was "not disabled." (CT at 39-42.)
Dr. Doren did not believe that Plaintiff's impairments met or equaled any listing on the Listing of Impairments. (CT at 42.) He quoted a report that was completed and reviewed by an orthopedic surgeon, and noted that there was no objective evidence to contradict the report. (CT at 42.) The report stated that Plaintiff could occasionally lift twenty pounds, frequently lift ten pounds, stand or walk six hours in an eight-hour workday with the normal rest periods, and be able to sit six hours in an eight-hour workday with the normal rest periods. (CT at 42.) Plaintiff had no limitations on her ability to push-pull, no manipulative limitations, and could occasionally climb, balance, stoop, kneel, and crawl. (CT at 42.)
C. Vocational Evidence Presented
Mary Jesko, M.S., testified as a vocational expert at the administrative hearing. (CT at 43-46.) Ms. Jesko asked Plaintiff to describe her prior work as an office clerk. (CT at 44.) Based on Plaintiff's response, Ms. Jesko classified Plaintiff's past work as a general clerk as "light, semiskilled, SVP of three." (CT at 45.) The ALJ then posed a hypothetical question with several variables to the vocational expert. The hypothetical encompassed various employment opportunities that would be available to Plaintiff given her stated physical limitations, age, and education. In response to the ALJ's questions, Ms. Jesko testified: (1) based upon Plaintiff's stated limitations, Plaintiff would not be able to perform her prior work as a general clerk and would not be able to find work activity as a general clerk either nationally or locally that she could perform; (2) Plaintiff's skills as a general clerk would classify to a number of sedentary, semiskilled clerical jobs; and (3) the use of a crutch by Plaintiff would not hinder the performance of those sedentary clerical jobs. (CT at 45-46.)
Specific Vocational Preparation (SVP) is defined as "the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation." Dictionary of Occupational Titles, app. C (rev. 4th ed. 1991).
D. The ALJ's Findings
The ALJ discussed Plaintiff's testimony, all of the documents, and all of the medical and vocational evidence presented. (CT at 16-22.) After evaluating the evidence, the ALJ determined that Plaintiff had "osteoarthritis of the left knee with mild subluxation of the patella." (CT at 21.) The ALJ stated that although the left knee injury was severe within the meaning of the Regulations, the impairment did not meet or medically equal one of the impairments listed in Appendix 1, Subpart P, Regulation No. 4. (CT at 21.)
The ALJ went on to examine whether Plaintiff retained the residual functional capacity to perform her past relevant work or other work existing in significant numbers in the national economy. (CT at 20.) The ALJ found that Plaintiff's impairment limited her to "lift and/or carry twenty pounds occasionally and ten pounds frequently; stand and/or walk six hours in an eight-hour workday; sit six hours in an eight-hour workday; and [be able to] occasionally climb, balance, stoop, kneel, crouch and crawl." (CT at 21.) Thus, the ALJ concluded that Plaintiff could perform her past relevant work as a general office clerk. (CT at 20.) Furthermore, assuming arguendo that Plaintiff could not perform any of her past relevant work and was limited to sedentary level work with the use of a crutch, the ALJ concurred with the vocational expert and found that Plaintiff possessed transferable skills and would still be able to perform work that existed "in significant numbers in the national economy, on a sustained basis." (CT at 21.)
The ALJ determined Plaintiff's allegations of severe impairment not credible to the extent alleged. (CT at 19.) The ALJ noted several reasons for finding Plaintiff's allegations not credible, including: (1) the lack of evidence indicating disuse or muscle atrophy; (2) no physician has stated that Plaintiff is either permanently or totally disabled; (3) Plaintiff's treating physician has opined that Plaintiff is not disabled; (4) the success of Plaintiff's medications in treating her symptoms and the lack of disabling side effects; (5) the absence of evidence indicating pain, such as severe weight loss or problems sleeping; (6) Plaintiff's own admissions that she has looked for work, despite her allegations that she is too disabled to work; (7) Plaintiff alleges that she requires the use of a crutch to ambulate, but has been observed using the single crutch in the wrong hand; (8) despite Plaintiff's claim that she cannot flex her knee, Dr. Milling was able to fully flex the knee without applying stress; and (9) the lack of any objective medical evidence indicating an impairment that would produce the incapacitating symptoms alleged by Plaintiff. (CT at 19.)
Accordingly, the ALJ determined that Plaintiff was "not disabled" as defined in the Social Security Act because she was capable of returning to her past relevant work, or in the alternative, of "making a successful adjustment to work that exist[ed] in significant numbers in the national economy." (CT at 20.) The ALJ thereby concluded that Plaintiff was not eligible for SSI payments under the Act. (CT at 22.)
IV. Discussion
A. Legal Standard
The Social Security Act authorizes payment of SSI benefits to individuals who have an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42. U.S.C. § 423(d)(1)(A). The disabling impairment must be so severe that the claimant is not only unable to do her previous work, but, considering age, education, and work experience, cannot engage in any kind of substantial gainful work that exists in the national economy. 42 U.S.C. § 423(d)(2)(A).
The Commissioner makes this assessment by a five-step analysis. First, the claimant must not currently be working. 20 C.F.R. § 404.1520(b). Second, the claimant must have a "severe" impairment. 20 C.F.R. § 404.1520(c). Third, the medical evidence of the claimant's impairment is compared to a list of impairments that are presumed severe enough to preclude work; if the claimant's impairment meets or equals one of the listed impairments, benefits are awarded. 20 C.F.R. § 404.1520(d). Fourth, if the claimant can do her past work, benefits are denied. 20 C.F.R. § 404.1520(f). Fifth, if the claimant cannot do her past work and, considering the claimant's age, education, work experience, and residual functional capacity, cannot do other work that exists in the national economy, benefits are awarded. 20 C.F.R. § 404.1520(g). The last two steps of the analysis are required by statute. 42 U.S.C. § 423(d)(2)(A).
Sections 405(g) and 421(d) of the Social Security Act allow unsuccessful applicants to seek judicial review of a final agency decision of the Commissioner. 42 U.S.C. §§ 405(g), 421(d). The scope of judicial review is limited, however, and the Commissioner's denial of benefits "will be disturbed only if it is not supported by substantial evidence or is based on legal error." Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988) (citing Green v. Heckler, 803 F.2d 528, 529 (9th Cir. 1986)).
Substantial evidence means "more than a mere scintilla" but less than a preponderance. Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). "[I]t is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). The court must consider the record as a whole, weighing both the evidence that supports and detracts from the Commissioner's conclusions. Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th Cir. 1988). If the evidence supports more than one rational interpretation, the court must uphold the ALJ's decision. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). When the evidence is inconclusive, "questions of credibility and resolution of conflicts in the testimony are functions solely of the Secretary." Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982) (citations omitted).
The ALJ has a special duty in social security cases to fully and fairly develop the record in order to make an informed decision on a claimant's entitlement to disability benefits. DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991). Because disability hearings are not adversarial in nature, the ALJ must "inform himself about the facts relevant to his decision," even if the claimant is represented by counsel. Id. (quoting Heckler v. Campbell, 461 U.S. 458, 471 n. 1 (1983)). Even if the reviewing court finds that substantial evidence supports the ALJ's conclusions, the court must set aside the decision if the ALJ failed to apply the proper legal standards in weighing the evidence and reaching his or her decision. Benitez v. Califano, 573 F.2d 653, 655 (9th Cir. 1978).
Section 405(g) permits a court to enter a judgment affirming, modifying, or reversing the Commissioner's decision. 42 U.S.C. § 405(g). The reviewing court may also remand the matter to the Social Security Commissioner for further proceedings. Id.
B. Plaintiff's Claims
Plaintiff asserts four grounds for reversal of the ALJ's decision. First, Plaintiff argues that the ALJ erred in determining that Plaintiff's past work of less than three months duration constituted past relevant work. Second, Plaintiff claims that the ALJ failed to evaluate Plaintiff's ability to perform all of the duties of her past work. Third, Plaintiff alleges that the ALJ erred in failing to obtain specific vocational expert testimony in analyzing whether Plaintiff possessed transferrable skills from a position she held for less than three months. Finally, Plaintiff contends that the ALJ improperly relied upon vocational testimony based on an incomplete hypothetical. (Docket No. 8 at 4, 7, 11-12, 14.)
1. Past Relevant Work
Plaintiff contends that the ALJ erred when he determined that Plaintiff's previous work as an office secretary constituted past relevant work because Plaintiff worked at that position for less than three months. Plaintiff claims that working less than three months as an office secretary was insufficient to prepare her to perform adequately at that position in the future, and thus did not constitute "work experience."
A plaintiff's prior work experience is used to determine what types of skills the plaintiff may have acquired and what type of work the plaintiff may be expected to do in the future. 20 C.F.R. § 416.965(a). Prior work is considered "work experience" for SSI purposes "when it was done within the last 15 years, lasted long enough for [Plaintiff] to learn to do it, and was substantial gainful activity." Id.
In the present case, although Plaintiff does not provide consistent dates for her work as an office clerk, she does not dispute that the work was performed within the last fifteen years. See (CT at 105) (working from "1-1-00 [to] 3-15-00"); (CT at 124) (working from "8/1 [to] 11/1.")
Here, after questioning Plaintiff regarding the types of tasks and functions she performed at her previous job, the Vocational Expert (VE) classified Plaintiff's prior work as "general clerk, [ Dictionary of Occupational Titles] code 209.562-010 . . . light, semiskilled, SVP of three." (CT at 44-45.) An SVP of three requires "over 1 month up to and including 3 months" of prior work experience. Dictionary of Occupational Titles 209.562-010. Plaintiff's work experience of two and a half to three months is at the higher end of the time required to learn the position. Furthermore, Plaintiff's testimony that she performed filing, scheduling, computer entries, and use of the phone demonstrates that she had sufficiently learned the position so as to be classified as "work experience." (CT at 44.) Thus, the ALJ was correct in determining that Plaintiff's previous work as an office secretary was conducted "long enough for [Plaintiff] to learn to do it, and was substantial gainful activity." 20 C.F.R. § 416.965(a).
2. Inability to Perform All Aspects of Past Relevant Work
Plaintiff alleges that the ALJ erred because he did not evaluate Plaintiff's ability to perform all of the responsibilities of her prior work. (Docket No. 8 at 7.) Plaintiff contends that her current disability prevents her from performing all of her former duties as an office secretary at Palomar Transit Mix and thus renders her incapable of performing her former work. However, it is not necessary that a plaintiff be able to perform all the specific functional duties and demands of her former job, only that she be able to perform the work as it is ordinarily done in the national economy. Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001); Villa v. Heckler, 797 F.2d 794, 798 (9th Cir. 1986). Thus, the claimant must prove an inability to return to her former type of work and not merely to her former job. Villa, 797 F.2d at 798.
After a review of the evidence and testimony presented, the ALJ found that Plaintiff was able to return to her past relevant work, although the ALJ did not specify whether Plaintiff could continue to do her former work as actually or as generally performed. (CT at 20.) However, the ALJ's failure to state a specific option alone is not cause for remand and the Court may review the administrative record to make this determination. See Pinto, 249 F.3d at 845 (reviewing the administrative record when the ALJ's conclusion did not specify either as actually performed or as generally performed); see generally Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989) (holding that a court may draw "specific and legitimate" inferences from an ALJ's opinion). Although the court in Pinto ultimately remanded the issue to the ALJ for more specific findings, it did so only because the ALJ's determination had no basis in the record and was contradictory to his findings. Id. at 848. Specifically, the ALJ found the claimant could only stoop "occasionally," while the claimant's former work as generally performed required "constant" stooping. Id. at 845. Additionally, the court also observed that the claimant did not meet the language requirements of her former work because she was illiterate. Id. at 847.
The present case however, is distinguishable because the ALJ's findings here match the requirements of Plaintiff's former work. The vocational expert testified that Plaintiff's work as an office secretary was classified in the Dictionary of Occupational Titles as that of a "general clerk." See Pinto, 249 F.3d at 845 (stating that "the best source for how a job is generally performed is usually the Dictionary of Occupational Titles."). A general clerk position is classified as "light" work, and does not require the worker to climb, balance, stoop, kneel, crouch or crawl. Dictionary of Occupational Titles 209.562-010. The ALJ found that Plaintiff retained "the physical functional capacity to perform light level work, on a sustained basis" (CT at 19), and his description of Plaintiff's physical limitations does not conflict with any of the physical requirements of the general clerk position. Dictionary of Occupational Titles 209.562-010.
Additionally, although Plaintiff's claimed limitations would have prevented her from performing light level work, the ALJ did not find Plaintiff's disabilities credible to the extent alleged. (CT at 20, 46.) The ALJ cited, among other reasons, the lack of objective medical evidence indicating an impairment or combination of impairments that would produce the symptoms alleged by Plaintiff and the fact that no physician has declared Plaintiff to be either permanently or totally disabled. (CT at 19.) Plaintiff's conduct also raised doubts about the credibility of her complaints, since she has been spotted using her single crutch in the wrong hand, despite previous instruction in the use of the crutch. (CT at 198.) Finally, the summary of Plaintiff's physical capabilities provided by the medical expert, after an examination of the record, matches the physical requirements of the general clerk position. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (stating that "the findings of a nontreating, nonexamining physician can amount to substantial evidence, so long as other evidence in the record supports those findings."). Thus, after reviewing the record as a whole, and weighing both the evidence that supports and detracts from the ALJ's conclusions, this Court finds that the ALJ's decision was supported by substantial evidence in the record and that Plaintiff was capable of performing her former work as it was generally performed.
3. Inadequate Testimony by Vocational Expert Regarding Transferable Skills
Plaintiff claims that the vocational expert's testimony regarding Plaintiff's transferable skills was insufficient to justify the ALJ's finding of "not disabled" because the testimony did not cite specific skills and occupations to which those skills would be transferable. (Docket No. 8 at 12.) Thus, Plaintiff argues that the ALJ's finding of "not disabled," under Medical Vocational Guideline 201.15, was improper in her case because such a finding requires a showing of transferable skills.
Respondent contends that an analysis of transferable skills is not necessary because the ALJ previously found that Plaintiff could return to her former work as a general clerk as it is ordinarily performed in the national economy. (Docket No. at 9.) However, it is not necessary for this Court to determine this issue because the ALJ was also justified in determining that Plaintiff has transferable skills.
Assuming arguendo that Plaintiff demonstrated that she could not perform any work that she has done in the past, either as she performed it or as it was ordinarily performed in the national economy, it is the Commissioner's responsibility to establish that Plaintiff is able to "perform a significant number of other jobs in the national economy." Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir. 2002). The Commissioner may carry this burden either through the testimony of a vocational expert of by reference to the Medical Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2. Id. at 955.
Here, the ALJ relied primarily upon the testimony of the vocational expert to find that Plaintiff possessed transferable skills that would allow her to perform other jobs in the national economy. See Vidal v. Harris, 637 F.2d 710, 712 (9th Cir. 1981) (stating that "testimony by a vocational expert is considered a well-respected method of demonstrating the claimant's ability to engage in other substantial gainful work"). The role of the vocational expert is to translate the hypothetical proposed by the ALJ into realistic job market probabilities. Schweiker, 694 F.2d at 643. However, 42 U.S.C. § 423(d)(2)(a), makes it clear that the statutory standard is not whether the claimant would actually be hired for work, but whether the claimant's health limitations would prevent her from engaging in substantial, gainful work. Vidal, 637 F.2d at 712-13.
To determine which pertinent jobs were available in the national economy, the ALJ proposed a hypothetical that asked the vocational expert to take into account Plaintiff's age, education, and prior work experience. (CT at 45.) The vocational expert testified that Plaintiff's "skills as an office clerk would classify to a number of sedentary clerical jobs." (CT at 45.) The ALJ further asked the vocational expert whether Plaintiff could perform work activity with the use of a crutch for ambulation. (CT at 45-46.) The vocational expert responded that Plaintiff's skills would still transfer to the sedentary jobs, and that "the use of a crutch would not preclude performance of those jobs." (CT at 46.) Although the vocational expert did not identify the specific skills that Plaintiff had acquired, it is logical that the tasks Plaintiff testified to performing during her past work as an office secretary, such as filing, scheduling, the use of phones, and entering data into a computer, would transfer to similar clerical jobs. (CT at 44.) Thus, the testimony of the vocational expert and the practical skills acquired by Plaintiff at her former work demonstrate that Plaintiff possessed skills that would transfer to other work available in the national economy. Accordingly, the ALJ's determination that Plaintiff had transferable skills and the subsequent finding of "not disabled" was based on substantial evidence.
4. Improper Hypothetical
Plaintiff's final argument is that the ALJ erred in improperly relying upon vocational expert testimony based on an incomplete hypothetical question. (Docket No. 8 at 15.) She contends that the vocational expert's testimony lacked evidentiary value because the ALJ's hypothetical did not include important limitations. (CT at 15.) Specifically, she argues that the ALJ failed to include occasional postural limitations and the need for a crutch for ambulation. (CT at 15.)
The testimony of a vocational expert is considered reliable when the hypothetical posed includes "all of the claimant's functional limitations, both physical and mental" that are supported by the record. Thomas, 278 F.3d at 956 (citing Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995)). However, hypothetical questions need only include medical assumptions based on substantial evidence. Osenbrock v. Apfel, 240 F.3d 1157, 1163 (9th Cir. 2001). "This is true even where there is conflicting medical evidence." Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995). Finally, the ALJ must have specific and legitimate reasons for not including certain limitations in a hypothetical. Embrey v. Bowen, 849 F.2d 418, 423 (9th Cir. 1988).
Notably, there is no conflicting medical evidence in the present case. The only disparity is between the debilitating symptoms alleged by Plaintiff and the lack of objective medical evidence to support her claims.
As noted above, the ALJ proposed a hypothetical to the vocational expert that included Plaintiff's age, education, prior work experience, and Plaintiff's alleged limitations in regards to sitting, walking, and standing. (CT at 45.) Plaintiff contends that this hypothetical was inadequate because it did not include postural limitations, such as the ability to occasionally climb, balance, stoop, kneel, crouch, and crawl." (Docket No. 8 at 14.) However, it was not necessary for the ALJ to include these occasional postural limitations because Plaintiff's prior relevant work as a general clerk did not require any of these physical activities. See Dictionary of Occupational Titles 209.562-010. Thus, the ALJ had specific and legitimate reasons for not including occasional postural limitations in the hypothetical. Embrey, 849 F.2d at 423.
Plaintiff's second allegation, that the hypothetical did not include Plaintiff's claim that she required a crutch for ambulation, is unclear because the ALJ explicitly included the potential use of a crutch in the hypothetical. (CT at 46.) This Court interprets Plaintiff's contention to be that the vocational expert did not testify that, given Plaintiff's alleged limitations, Plaintiff could return to her former work or other work activity. However, the ALJ was not required to accept as true the restrictions claimed by Plaintiff, and was free to reject those restrictions based on substantial evidence. Roberts, 66 F.3d at 184. As discussed above, the medical expert's testimony that there was no objective medical evidence to support Plaintiff's claims of crippling disability, the absence of a physician who opined that Plaintiff was either permanently or totally disabled, and the other evidence presented in the record led the ALJ to find that Plaintiff's alleged limitations were not credible. (CT at 42.) Thus, the ALJ was justified in excluding the limitations alleged by Plaintiff that were not based on substantial evidence. Osenbrock, 240 F.3d at 1163. Accordingly, the vocational expert's opinions had evidentiary value and it was proper for the ALJ to rely upon her testimony.
ALJ's hypothetical:
With the same vocational profile with limitation to sedentary work as defined in Social Security regulations but there is a need to use one crutch for ambulation, would there be positions available as a general clerk, and if not, would there be other work activity that exists either nationally or locally that could be performed.
(CT at 46) (emphasis added).
The vocational expert did testify however, that Plaintiff's skills would transfer to other sedentary work in the economy, even if she required the use of a crutch to ambulate. (CT at 46.)
V. Conclusion
After a thorough review of the record, the papers submitted, and based on the reasons set forth above, this Court finds the ALJ's denial of benefits is supported by substantial evidence. Accordingly, this Court recommends Ms. Claydon's Motion for Summary Judgment be DENIED and the Commissioner's cross-motion for summary judgement be GRANTED.
This Report and Recommendation is submitted to the United States District Judge assigned to this case pursuant to U.S.C. § 636(B)(1). Any party may file written objections with the Court and serve a copy on all parties on or before January 27, 2006. The document should be captioned "Objections to Report and Recommendation." Any reply to the objections shall be filed and served on or before February 17, 2006.
IT IS SO ORDERED.