Summary
holding that an ALJ's failure to discuss specifically a vocational counselor was not in error, because the ALJ stated that she had considered all of the evidence
Summary of this case from Goncalves v. AstrueOpinion
Case No. SACV 07-350 JC.
September 22, 2008
MEMORANDUM OPINION
I. SUMMARY
On April 4, 2007, plaintiff Karla M. Kreft ("plaintiff") filed a Complaint seeking review of the Commissioner of Social Security's denial of plaintiff's application for benefits. The parties have filed a consent to proceed before a United States Magistrate Judge.
This matter is before the Court on the parties' cross motions for summary judgment, respectively ("Plaintiff's Motion") and ("Defendant's Motion"). The Court has taken both motions under submission without oral argument. See Fed.R.Civ.P. 78; L.R. 7-15; April 9, 2007 Case Management Order, ¶ 5.
Based on the record as a whole and the applicable law, the decision of the Commissioner is AFFIRMED. The findings of the Administrative Law Judge are supported by substantial evidence and are free from material error.
The harmless error rule applies to the review of administrative decisions regarding disability. See Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1196 (9th Cir. 2004) (applying harmless error standard); see also Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054-56 (9th Cir. 2006) (discussing contours of application of harmless error standard in social security cases).
II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
In September 2003, plaintiff filed applications for Supplemental Security Income benefits and Disability Insurance Benefits. (Administrative Record ("AR") 13, 48-50). Plaintiff asserted that she became disabled on December 31, 1998, due to insulin dependent diabetes, major depression, anxiety, and hypogloycemic unawareness. (AR 64).
On June 15, 2005, an Administrative Law Judge (the "First ALJ") issued an unfavorable decision. (AR 462-70). Plaintiff requested review of the First ALJ's decision. (AR 486). The Appeals Council remanded the matter. (AR 487-89).
On remand, a different Administrative Law Judge (the "ALJ") examined the medical record and heard testimony from a medical expert, a vocational expert, and plaintiff, who was represented by counsel, on March, 13, 2006. (AR 652-683).
On September 25, 2006, the ALJ determined that plaintiff was not disabled through the date of the decision. (AR 13-20). Specifically, the ALJ found: (1) plaintiff suffered from the following severe impairments: diabetes mellitus, rheumatoid arthritis, hypothyroidism and a depressive disorder secondary to her medical condition (AR 16); (2) plaintiff's impairments or combination of impairments did not meet or medically equal one of the listed impairments (AR 16); (3) plaintiff retained the residual functional capacity to perform light work (AR 16); (4) plaintiff could perform her past relevant work as a front office receptionist of a dental office (AR 18-19); and (5) plaintiff could make a successful adjustment to do other work that exists in significant numbers in the national economy. (AR 19).
Specifically, the ALJ determined that: (i) plaintiff could lift and carry 10 pounds frequently and 20 pounds occasionally; (ii) plaintiff could occasionally climb stairs, bend, stoop, kneel, crouch or crawl; (iii) plaintiff was restricted from climbing ladders/scaffolds, balancing, working at heights, and being around dangerous and fast moving machinery; (iv) plaintiff's depression limited her to a work environment which did not require (a) hypervigilance; (b) being in charge of the safety operations of others; (c) intense interpersonal interactions; or (d) the supervision of others; (v) plaintiff was restricted from jobs which require high production, quota or rapid assembly line work; and (vi) plaintiff was limited to a job having a moderate pace with moderate supervision and moderate interaction with peers, coworkers and the public. (AR 16).
The Appeals Council denied plaintiff's application for review. (AR 6-8).
III. APPLICABLE LEGAL STANDARDS
A. Sequential Evaluation Process
To qualify for disability benefits, a claimant must show that she is unable to engage in any substantial gainful activity by reason of a 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 at least twelve months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the work she previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).
In assessing whether a claimant is disabled, an ALJ is to follow a five-step sequential evaluation process:
(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two.
(2) Is the claimant's alleged impairment sufficiently severe to limit her ability to work? If not, the claimant is not disabled. If so, proceed to step three.
(3) Does the claimant's impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is disabled. If not, proceed to step four.
(4) Does the claimant possess the residual functional capacity to perform her past relevant work? If so, the claimant is not disabled. If not, proceed to step five.
(5) Does the claimant's residual functional capacity, when considered with the claimant's age, education, and work experience, allow her to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not disabled. If not, the claimant is disabled.Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920).
Residual functional capacity is "what [one] can still do despite [ones] limitations" and represents an "assessment based upon all of the relevant evidence." 20 C.F.R. §§ 404.1545(a), 416.945(a).
The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five.Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett); see also Burch, 400 F.3d at 679 (claimant carries initial burden of proving disability).
B. Standard of Review
Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of benefits only if it is not supported by substantial evidence or if it is based on legal error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006) (citing Flaten v. Secretary of Health Human Services, 44 F.3d 1453, 1457 (9th Cir. 1995)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)).
To determine whether substantial evidence supports a finding, a court must "`consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.'" Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming or reversing the ALJ's conclusion, a court may not substitute its judgment for that of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457).
IV. DISCUSSION
A. The ALJ Properly Considered the Opinion of Plaintiff's Treating Psychiatrist
Plaintiff alleges that the ALJ failed properly to consider the opinion of treating psychiatrist, Dr. Khajavi. (Plaintiff's Motion at 4). This Court disagrees and finds that the ALJ properly considered Dr. Khajavi's opinion.
1. Relevant Evidence
In January 2000, plaintiff underwent a consultative psychiatric evaluation by Dr. Prastka. (AR 185-87). Plaintiff complained of depression. (AR 185). Dr. Prastka diagnosed plaintiff with mood disorder secondary to her general medical condition. (AR 187). He observed that plaintiff looked moderately depressed and anxious, but that her intellectual functioning was unimpaired, and that she had the ability to focus and maintain attention, and to understand, remember and follow instructions. (AR 186). He determined that there was an objective basis to determine that she was then at least temporarily mentally impaired for employment. (AR 187).
In February 2000, a state agency medical consultant concluded that plaintiff had only slight impairment in functioning secondary to alleged depression. (AR 217). He opined that she had slight impairment in activities of daily living and maintaining social functioning and no impairment in any other area of functioning. (AR 221). In October 2002, another state agency psychiatrist concluded that plaintiff had mild impairments in activities of daily living, but moderate impairments in social functioning and maintaining concentration, persistence and pace. (AR 249).
In September 2002, plaintiff's treating psychiatrist, Dr. Khajavi, who worked at the Mental Health Association of Orange County ("Dr. Khajavi's Clinic"), diagnosed plaintiff with major depressive disorder, recurrent, and personality disorder, not otherwise specified, and noted that plaintiff's prognosis was fair. (AR 227, 229). Dr. Khajavi reported that plaintiff was seen on a monthly basis from January 2000 to at least September 2002. (AR 227). Dr. Khajavi completed a mental disorder questionnaire form and a short-form evaluation for mental disorders. (AR 222-30 [Exhibit 8F]).
Dr Khajavi reported: Plaintiff began treatment in the year 2000 due to symptoms of depression and anxiety resulting from her diabetes. (AR 222, 226, 230). She received outpatient treatment and Zoloft, but was never hospitalized in connection with her mental disorder. (AR 222). Plaintiff had some difficulty keeping track of her appointments, frequently had to be rescheduled, but took responsibility for setting appointments. (AR 222, 225). She always displayed good grooming and hygiene. (AR 222, 227). Plaintiff was pleasant and cooperative. (AR 223, 227). She interacted quite well with others. (AR 225). She had average intellectual functioning and good memory and judgment. (AR 223). Her concentration was fair, but she sometimes lost her train of thought and needed to be prompted. (AR 223). Her concentration was impaired in the sense that she had difficulty focusing and remembering what she was talking about at times — related to her blood sugar level. (AR 227). She had periods of confusion due to fluctuations in her blood sugar level. (AR 224, 227). She had symptoms of depression including low motivation, hopelessness, low self-esteem, and poor concentration. (AR 224). She sometimes had difficulty with concentration and task completion. (AR 225). She was often distracted and tangential. (AR 225, 228). Plaintiff could follow simple directions, but was easily overwhelmed. (AR 225). Due to her condition, plaintiff might be easily overwhelmed in a high stress or fast paced work environment. (AR 225). Plaintiff's ability to make decisions was slow due to concentration and lack of confidence. (AR 225). Plaintiff's long term memory was good, and her short term memory was moderate. (AR 227). She was competent to manage funds on her own behalf. (AR 226).
In the short-form evaluation, Dr. Khajavi checked boxes indicating that plaintiff had a "fair" ability to: (1) understand, remember, and carry out complex instructions; (2) understand, remember, and carry out simple instructions; (3) maintain concentration, attention and persistence; (4) perform activities within a schedule and maintain regular attendance; (5) complete a normal workday and workweek without interruptions from psychologically based symptoms; and (6) respond appropriately to changes in a work setting. (AR 229). The evaluation form instructed that the term "fair" was to be used when "evidence support[ed] the conclusion that the individual's capacity to perform the activity [was] impaired" but that "the degree/extent of the impairment need[ed] to be further described." (AR 229). Although, as noted above, Dr. Khajavi used the term "fair," the doctor did not further describe the degree/extent of plaintiff's impairments on the short-form evaluation.
Progress reports from Dr. Knight, another psychiatrist at Dr. Khajavi's Clinic, and Dr. Knight's assistant, show a generally normal mental status examination between July to September 2003. (AR 355-64). Plaintiff was diagnosed with depression, was found to have mild to moderate impairments in functioning, and was treated with antidepressant medication. (AR 355-64). In October 2003, Dr. Knight, concluded that plaintiff was depressed due to her general medical condition and advised medication management. (AR 370). He reported that plaintiff was occasionally distracted but was cooperative, and was able to complete routine tasks, and to follow instructions. (AR 369).
In November 2004, Dr. McGee, a clinical psychologist, conducted a psychological evaluation of plaintiff. (AR 395-402). Dr. McGee diagnosed plaintiff with depressive disorder, not otherwise specified. (AR 400). He noted that plaintiff evidenced mild cognitive limitations regarding her ability to work in that she displayed mild deficits in attention and concentration on some types of tasks. (AR 400). He observed that plaintiff was able to comply with instructions, and opined that she was capable of learning a routine, repetitive task. (AR 400).
On March 16, 2006, Dr. Rath, the medical expert who testified at the administrative hearing, summarized the medical evidence relating to plaintiff's mental impairment. (AR 668-70). Dr. Rath referenced, inter alia, Dr. Khajavi's, assessments, including Dr. Khajavi's observation that confusion resulted from blood sugar level fluctuations. (AR 669). After taking such evidence into account, Dr. Rath opined that plaintiff should be placed in no more than a moderately stressful environment in terms of supervision, co-workers, and production quotas. (AR 670).
2. ALJ's Determination
The ALJ's decision contains the following discussion of Dr. Khajavi's opinion:
A treating source has submitted a mental assessment, reflecting [plaintiff]'s functioning as being "fair" in key areas, but the degree of impairment is not further quantified or otherwise explained. The accompanying medical records indicated that [plaintiff] may be easily overwhelmed in a high stress or fast paced job. The residual functional capacity as assessed herein accommodates those limitations.
(AR 18).
In the residual functional capacity determination, the ALJ found: [Plaintiff]'s depression limits her to a work environment which does not require hypervigilance or to be in charge of the safety operations of others, or one requiring intense interpersonal interactions or to supervise others. She is restricted from jobs which require high production, quota or rapid assembly line work, and is limited to one having a moderate pace with moderate supervision and moderate interaction with peers, coworkers and the public.
(AR 16).
3. Relevant Law
In Social Security cases, courts employ a hierarchy of deference to medical opinions depending on the nature of the services provided. Courts distinguish among the opinions of three types of physicians: those who treat the claimant ("treating physicians") and two categories of "nontreating physicians," namely those who examine but do not treat the claimant ("examining physicians") and those who neither examine nor treat the claimant ("nonexamining physicians"). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (footnote reference omitted). A treating physician's opinion is entitled to more weight than an examining physician's opinion, and an examining physician's opinion is entitled to more weight than a nonexamining physician's opinion. See id. In general, the opinion of a treating physician is entitled to greater weight than that of a non-treating physician because the treating physician "is employed to cure and has a greater opportunity to know and observe the patient as an individual."Morgan v. Commissioner of Social Security Administration, 169 F.3d 595, 600 (9th Cir. 1999) (citing Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)).
Cf. Le v. Astrue, 529 F.3d 1200, 1201-02 (9th Cir. 2008) (not necessary or practical to draw bright line distinguishing treating physicians from non-treating physicians; relationship is better viewed as series of points on a continuum reflecting the duration of the treatment relationship and frequency and nature of the contact) (citation omitted).
The treating physician's opinion is not, however, necessarily conclusive as to either a physical condition or the ultimate issue of disability. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citing Rodriguez v. Bowen, 876 F.2d 759, 761-62 n. 7 (9th Cir. 1989)). Where a treating physician's opinion is not contradicted by another doctor, it may be rejected only for clear and convincing reasons. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citation and internal quotations omitted). The ALJ can reject the opinion of a treating physician in favor of a conflicting opinion of another examining physician if the ALJ makes findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record.Id. (citation and internal quotations omitted); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (ALJ can meet burden by setting out detailed and thorough summary of facts and conflicting clinical evidence, stating his interpretation thereof, and making findings) (citations and quotations omitted);Magallanes, 881 F.2d at 751, 755 (same; ALJ need not recite "magic words" to reject a treating physician opinion — court may draw specific and legitimate inferences from ALJ's opinion). "The ALJ must do more than offer his conclusions." Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). "He must set forth his own interpretations and explain why they, rather than the [physician's], are correct." Id. "Broad and vague" reasons for rejecting the treating physician's opinion do not suffice.McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989).
4. Analysis
In this case, the ALJ properly considered Dr. Khajavi's opinions and incorporated such doctor's findings into the ALJ's residual functional capacity assessment. First, the ALJ expressly stated that she had considered all of the evidence in the record. (AR 14, 15, 16). Second, the ALJ also expressly referenced Dr. Khajavi's assessments (referring to Dr Khajavi as "the treating source"). (AR 16, 18) (citing Exhibit 8F [AR 222-30]). The ALJ also expressly incorporated the First ALJ's discussion of the medical evidence which likewise specifically referenced Dr. Khajavi's assessments. (AR 17, 466) (citing Exhibit 8F [AR 222-30]). Third, the ALJ specifically discussed particular observations and opinions of such doctor. The ALJ noted that Dr. Khajavi had assessed plaintiff's functioning as being "fair" in key areas but had not further quantified or otherwise explained the degree of impairment. (AR 18). The ALJ nonetheless reasonably inferred from the accompanying medical records that this referred to the possibility, due to such plaintiff's mental deficiencies, that plaintiff might be easily overwhelmed in a high stress or fast paced job. (AR 18). Rather than rejecting Dr. Khajavi's assessment, the record reflects that the ALJ expressly "accommodated those limitations" into the ALJ's residual functional capacity assessment. (AR 18). As noted above, the ALJ determined that plaintiff could not work in a high stress or fast paced jobs. Although the ALJ did not individually discuss Dr. Khajavi's opinion that confusion resulted from blood sugar level fluctuations, the ALJ expressly relied upon the assessment of Dr. Rath who did specifically refer to, and take into account such opinion. (AR 16, 669). Moreover, although the ALJ did not engage in a detailed discussion of each of Dr. Khajavi's discrete opinions, the impairments noted by Dr. Khajavi are incorporated into and consistent with the ALJ's residual functional capacity determination. Accordingly, any error by the ALJ in not expressly discussing each of Dr. Khajavi's discrete findings was harmless.
The First ALJ stated: "In a September 2002 evaluation the claimant's psychiatrist [Dr. Khajavi] concluded the claimant had major depression but he restricted her from high stress situations only. He stated the claimant may be easily overwhelmed in high stress jobs due to depression. She would become easily confused. She also had somewhat impaired concentration but he concluded she could understand and follow simple directions. (Exhibit 8F, p. 4)." (AR 466).
B. The ALJ Did Not Err In Failing Further to Develop the Record
Plaintiff also alleges that the ALJ failed properly to develop the record regarding Dr. Khajavi's opinion. (Plaintiff's Motion at 2). Plaintiff contends that the ALJ's observation, noted above, that Dr. Khajavi did not further quantify or explain his/her "fair" assessment of plaintiff's functioning in multiple areas, was essentially equivalent to a determination that the record was ambiguous or inadequate, thereby triggering the ALJ's obligation to further develop the record. (Plaintiff's Motion at 4). This Court disagrees and finds the ALJ was not required further to develop the record.
1. Relevant Law
An ALJ in a social security case has an independent duty fully and fairly to develop the record. See Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (citations omitted); see also Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (ALJ has special duty fully and fairly to develop record and to assure that claimant's interests are considered). "An ALJ's duty to develop the record further is triggered only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence." Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001) (citing Tonapetyan, 242 F.3d at 1150). "The ALJ may discharge this duty in several ways, including: subpoenaing the claimant's physicians, submitting questions to the claimant's physicians, continuing the hearing, or keeping the record open after the hearing to allow supplementation of the record." Tonapetyan, 242 F.3d at 1150 (citations omitted).
2. Analysis
In this case, the ALJ's duty to develop the record further was not triggered. The ALJ's observation that Dr. Khajavi's "fair" assessment was "not further quantified or otherwise explained," was not an indication that the record was ambiguous or inadequate. Rather, as noted above, the ALJ reasonably inferred from the accompanying medical records, that Dr. Khajavi was referring to the possibility that plaintiff might be easily overwhelmed in a high stress or fast paced job. (AR 18). There was ample evidence in the record regarding plaintiff's mental impairments. The record was adequate to allow for a proper evaluation of Dr. Khajavi's opinion and plaintiff's mental impairments and limitations. Accordingly, the ALJ was not required further to develop the record.
C. The ALJ Did Not Materially Err Relative to the Opinion of Plaintiff's Vocational Rehabilitation Counselor
Plaintiff further alleges that the ALJ failed properly to consider a report prepared by a vocational counselor regarding plaintiff's condition. (Plaintiff's Motion at 5-6). This Court disagrees and finds that the ALJ did not materially err in connection with the ALJ's consideration of such opinion.
1. Relevant Facts
A vocational rehabilitation counselor created a two page document (the "Report") so that plaintiff could be eligible for special services at a junior college she was attending. (AR 232-33). On the first page, the counselor described plaintiff's disability that warranted special services, indicating plaintiff had insulin dependent diabetes and major depression, which she treated with multiple specified medications. (AR 232). He further stated that plaintiff was limited by her condition because she had to test her blood sugar and take insulin. (AR 232). The counselor checked boxes indicating that plaintiff's disability was permanent/chronic, but was not observable. (AR 232). The counselor referred to an attached medical verification which constitutes the second page of the Report. (AR 232-33). The medical verification form, completed by a social worker at Dr. Khajavi's Clinic, contains a summary consistent with, and duplicative of the opinions of Drs. Khajavi and Knight, noted above. (AR 233). Specifically, the social worker indicated: Plaintiff began treatment in January 2000 for major depression, recurrent, and took Zoloft and received counseling for her condition. (AR 233). Plaintiff's prognosis was good. Plaintiff had reservations regarding potential future employers' understanding of her needs associated with being an insulin dependant diabetic. (AR 233).
The social worker and Dr. Khajavi's Clinic have the same address. (AR 226, 230, 233).
2. Analysis
The ALJ indicated multiple times that she had considered all of the evidence in the record in reaching her decision, but did not specifically reference the Report. (AR 14, 15, 16). An ALJ is not required to discuss every piece of evidence in interpreting the evidence and developing the record. Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003). Instead, an ALJ must only explain why "significant probative evidence has been rejected." Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (citation omitted).
First, the Report does not constitute significant probative evidence. To the extent the Report is based upon the observations and opinions of a vocational counselor and a social worker, such individuals are not acceptable medical sources. See 20 C.F.R. §§ 404.1513(a), 416.913(a). Rather, such individuals at most constitute "other sources." See 20 C.F.R. §§ 404.1513(d), 416.913(d). Although such other source opinions generally may used to show the severity of a claimant's impairments, and their impact on her ability to work, here, the Report is merely cumulative of other evidence considered by the ALJ and has no independent significance or probative value. Accordingly, the ALJ did not err in failing to discuss the observations contained in the Report.
Second, any error by the ALJ in failing to discuss the Report was harmless both because the Report is cumulative of other evidence considered and addressed by the ALJ, and because the Report's conclusions are not inconsistent with the ALJ's residual functional capacity assessment.
D. The ALJ Did Not Err In Its Questions to the Vocational Expert
Plaintiff also alleges that the ALJ erroneously failed to pose a complete hypothetical question to the vocational expert (the "VE"). (Plaintiff's Motion at 7). She argues that additional limitations identified by Dr. Khajavi and in the Report should have been included in the hypothetical questions to the VE. (Plaintiff's Motion at 7-9). This Court disagrees and finds that the ALJ posed proper hypothetical questions to the VE by including all of plaintiff's limitations and restrictions supported by the record.
Plaintiff refers to the following exchange between the ALJ and the VE:
A hypothetical question posed by an ALJ to a vocational expert must set out all the limitations and restrictions of the particular claimant. Light v. Social Security Administration, 119 F.3d 789, 793 (9th Cir.), as amended (1997) (citing Andrews v. Shalala, 53 F.3d 1035, 1044 (9th Cir. 1995)); Embry, 849 F.2d at 422 (citation omitted). However, an ALJ need not include limitations which are not supported by the record. See Magallanes, 881 F.2d at 756.
Here, the Court concludes that the ALJ properly considered all evidence, and properly included the limitations and restrictions that were supported by the record in the residual functional capacity assessment. The residual functional capacity assessment, in turn, was properly incorporated into the hypothetical question posed to the VE.
As the ALJ posed a proper hypothetical question to the VE by including all of plaintiff's limitations and restrictions supported by the record, plaintiff is not entitled to a reversal or remand on this basis.
V. CONCLUSION
For the foregoing reasons, the decision of the Commissioner of Social Security is affirmed.
LET JUDGMENT BE ENTERED ACCORDINGLY.
ALJ: Hypothetically assume a 62 year old individual with a high school education and couple years of college and the work experience that's outlined by yourself in your report and testimony today. This individual can occasionally lift 20 pounds, frequently lift 10 pounds. She is precluded from climbing ladders, ropes, or scaffolding, or from balancing. She's also precluded from working at unprotected heights, around dangerous or fast moving machinery. She can occasionally climb stairs, bend, stoop, kneel, crouch, or crawl. She can perform jobs where hyper vigilance is not required. She should not be in charge of safety operations of others. She's precluded from jobs that require intense interpersonal interaction. She should not supervise others. She's precluded from jobs requiring high production quota or rapid assembly work. However, she can work a moderate pace with moderate supervision, as described by Dr. Rath. Moderate interaction with peers, co-workers, and the public, as described by Dr. Rath. Based on this hypothetical can this individual do any of the claimant's past relevant work? VE: Yes, I would say the jobs, as typically performed, in both the regional and national economy should be able to be performed within that hypothetical. But, based upon the claimant's testimony, not in her particular situation. . . . ALJ: [I]f she were unable to work eight hours a day 40 hours a week and would miss more than 2 days of work per month due to impairments, any jobs? VE: There would be no jobs that could be sustained, Your Honor. (AR 680-81, 682).