Hunt v. Colvin

954 F. Supp. 2d 1181, 2013 WL 3270369, 2013 U.S. Dist. LEXIS 90154

• Court: District Court, W.D. Washington
• Decided: June 26, 2013
• Docket: Case No. C12-1401-JLR
• Status: Published

Opinion

ORDER REVERSING AND REMANDING CASE FOR FURTHER ADMINISTRATIVE PROCEEDINGS

JAMES L. ROBART, District Judge.

The Court, after careful consideration of the plaintiffs complaint, the parties’ briefs, all papers and exhibits filed in support and opposition thereto, the Report and Recommendation of the Honorable James P. Donohue, United States Magistrate Judge, and the balance of the record, does hereby find and ORDER:

(1) The Court adopts the Report and Recommendation.

(2) The final decision of the Commissioner is REVERSED and this case is REMANDED to the Social Security Administration for further proceedings consistent with the Report and Recommendation.

(3) The Clerk of the Court is directed to send copies of this Order to the parties and to Judge Donohue.

REPORT AND RECOMMENDATION

JAMES P. DONOHUE, United States Magistrate Judge.

Plaintiff Tincy Lee Hunt appeals the final decision of the Commissioner of the Social Security Administration (“Commissioner”) that denied her applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-33 and 1381-831', after a hearing before an administrative law judge (“ALJ”). For the reasons set forth below, the Court recommends that the Commissioner’s decision be reversed and remanded for additional proceedings.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff is a 46-year-old woman with a high school diploma and some vocational training. Administrative Record (“AR”) at 52, 72-73. Her past work experience includes employment as a daycare worker and sales representative. AR at 244. Plaintiff was last gainfully employed in September 2007. Id.

On April 30, 2009, Plaintiff filed a claim for SSI payments and an application for DIB, alleging an onset date of April 1, 2008. AR at 206-10. Plaintiff asserts that she is disabled due to anxiety, two bad knees, bad right ankle, carpal tunnel syndrome, high blood pressure, asthma, thyroid problems, and a mental condition. AR at 225, 264, 272-73.

The Commissioner denied Plaintiffs claim initially and on reconsideration. AR at 118-21, 124-28. Plaintiff requested a hearing, which took place on March 1, 2011, and was continued to May 5, 2011. AR at 32-112. On July 29, 2011, the ALJ issued a decision finding Plaintiff not disabled and denied benefits based on her finding that Plaintiff could perform a specific job existing in significant numbers in the national economy. AR at 15-26. Plaintiffs administrative appeal of the ALJ’s decision was denied by the Appeals Council, AR at 1-6, making the ALJ’s ruling the “final decision” of the Commissioner as that term is defined by 42 U.S.C. § 405(g). On August 20, 2012, Plaintiff timely filed the present action challenging the Commissioner’s decision. Dkt. 1, 6.

II. JURISDICTION

Jurisdiction to review the Commissioner’s decision exists pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

III. STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of social security benefits when the ALJ’s findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th Cir.2005). “Substantial evidence” is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir.1989). The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving any other ambiguities that might exist. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.1995). While the Court is required to examine the record as a whole, it may neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.2002). When the evidence is susceptible to more than one rational interpretation, it is the Commissioner’s conclusion that must be upheld. Id.

The Court may direct an award of benefits where “the record has been fully developed and further administrative proceedings would serve no useful purpose.” McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir.2002) (citing Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir.1996)). The Court may find that this occurs when:

(1) the ALJ has failed to provide legally sufficient reasons for rejecting the claimant’s evidence; ,(2) there are no outstanding issues that must be resolved before a determination of disability can be made; and (3) it is clear from the record that the ALJ would be required to find the claimant disabled if he considered the claimant’s evidence.

Id. at 1076-77; see also Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir.2000) (noting that erroneously rejected evidence may be credited when all three elements are met).

IV. EVALUATING DISABILITY

As the claimant, Ms. Hunt bears the burden of proving that she is disabled within the meaning of the Social Security Act (the “Act”). Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir.1999) (internal citations omitted). The Act defines disability as the “inability to engage in any substantial gainful activity” due to a physical or mental impairment which has lasted, or is expected to last, for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant is disabled under the Act only if her impairments are of such severity that she is unable to do her previous work, and cannot, considering her age, education, and work experience, engage in any other substantial gainful activity existing in the national economy. 42 U.S.C. §§ 423(d)(2)(A); see also Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir.1999).

The Commissioner has established a five step sequential evaluation process for determining whether a claimant is disabled within the meaning of the Act. See 20 C.F.R. §§ 404.1520, 416.920. The claimant bears the burden of proof during steps one through four. At step five, the burden shifts to the Commissioner. Id. If a claimant is found to be disabled at any step in the sequence, the inquiry ends without the need to consider subsequent steps. Step one asks whether the claimant is presently engaged in “substantial gainful activity.” 20 C.F.R. §§ 404.1520(b), 416.920(b).² If she is, disability benefits are denied. If she is not, the Commissioner proceeds to step two. At step two, the claimant must establish that she has one or more medically severe impairments, or combination of impairments, that limit her physical or mental ability to do basic work activities. If the claimant does not have such impairments, she is not disabled. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant does have a severe impairment, the Commissioner moves to step three to determine whether the impairment meets or equals any of the listed impairments described in the regulations. 20 C.F.R. §§ 404.1520(d), 416.920(d). A claimant whose impairment meets or equals one of the listings for the required twelve-month duration requirement is disabled. Id.

When the claimant’s impairment neither meets nor equals one of the impairments listed in the regulations, the Commissioner must proceed to step four and evaluate the claimant’s residual functional capacity (“RFC”). 20 C.F.R. §§ 404.1520(e), 416.920(e). Here, the Commissioner evaluates the physical and mental demands of the claimant’s past relevant work to determine whether she can still perform that work. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant is able to perform her past relevant work, she is not disabled; if the opposite is true, then the burden shifts to the Commissioner at step five to show that the claimant can perform other work that exists in significant numbers in the national economy, taking into consideration the claimant’s RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(g), 416.920(g); Tackett, 180 F.3d at 1099, 1100. If the Commissioner finds the claimant is unable to perform other work, then the claimant is found disabled and benefits may be awarded.

V. DECISION BELOW

On July 29, 2011, the ALJ found:

1. The claimant meets the insured status requirements of the Social Security Act through December 12, 2012.

2. The claimant has not engaged in substantial gainful activity since April 1, 2008, the alleged onset date.

3. The claimant’s bilateral knee arthritis, asthma, obesity, and depression are severe impairments.

4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.

5. The claimant has the residual functional capacity to lift and carry 10 pounds frequently and 20 pounds occasionally. She can walk and stand for a total of at least 2 hours in an 8-hour day. She can sit for 6 hours in an 8-hour day with brief postural changes and usual, customary breaks. She should be allowed to sit and stand at will. All postural limitations are frequent. She must avoid concentrated exposure to extreme heat, vibration, pulmonary irritants, and hazards. She has sufficient concentration to maintain persistence and pace in 2-hour increments with usual and customary breaks during an 8-hour workday. She has sufficient persistence and pace to meet average production standards.

6. The claimant is unable to perform any past relevant work.

7. The claimant was born on XXXXX, 1966, and was 41 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date.³

8. The claimant has at least a high school education and is able to communicate in English.

9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferable job skills.

10. Considering the claimant’s age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform.

11. The claimant has not been under a disability, as defined in the Social Security Act, from April 1, 2008, through July 29, 2011.

AR at 17-26.

VI. ISSUES ON APPEAL

The principal issues on appeal are:

1. Whether the ALJ properly rejected the opinions of Mumin Dimbil, M.D., and Ann Alvarez, M.D.;

2. Whether the ALJ’s residual functional capacity (“RFC”) assessment accounted for all of Ms. Hunt’s limitations;

3. Whether the ALJ erred in discounting Ms. Hunt’s credibility; and

4. Whether the ALJ met her burden at step five of the sequential evaluation process.

Dkt. 18 at 1.

VII. DISCUSSION

A. The ALJ Did Not Err in Assessing the Opinions of Drs. Dimbil and Alvarez.⁴

The ALJ discounted the opinions of treating physician Dr. Dimbil and consultative examiner Dr. Alvarez. According to Plaintiff, the ALJ erred in assessing the opinions provided by these physicians, and thus improperly failed to account for all the limitations they identified when assessing Plaintiffs RFC. The Court will address the opinions of each doctor in turn.

1. Dr. Dimbil

Dr. Dimbil opined in a July 2008 form that Plaintiff is unable to stand, lift, or bend over for more with 15 minutes without pain, and that she could work no more than 11-20 hours per week. AR at 475. Dr. Dimbil also indicated that Plaintiff was capable of performing sedentary work. Id. Dr. Dimbil opined that Plaintiffs restrictions would limit her ability to work for 3-6 months. AR at 476.

The ALJ provided three reasons to discount Dr. Dimbil’s opinion. First, the ALJ noted that Dr. Dimbil’s opinion was not accompanied by objective findings, and that his treatment notes do not support the severe limitations indicated in the opinion. AR at 24. The ALJ also pointed to the vagueness in Dr. Dimbil’s opinion that Plaintiff cannot stand, lift, or bend over without pain, because it is not clear how long Plaintiff could stand in total during a day, nor is it clear what it would mean to lift for more than 15 minutes. Id. Lastly, the ALJ pointed to the limited temporal scope (3-6 months) of Dr. Dimbil’s opinion as a basis to discount the weight afforded to it. Id.

Plaintiff challenges the validity of the first two reasons provided by the ALJ, but does not address the temporal issue. A limited temporal scope is a valid reason to discount an opinion, in light of the Act’s definition of “disability,” which requires a severe impairment that prevents work that is expected to last at least twelve months. See 20 C.F.R. §§ 404.1505, 1509. Moreover, the ALJ’s other two reasons are also valid. Dr. Dimbil’s opinion is not accompanied by any clinical findings, and his treatment notes from the time period including and before the date of the opinion do not contain findings supporting the severe limitations set forth in the opinion. See AR at 294-306 (Dr. Dimbil’s treatment notes from April to July 2008). This is a valid reason to discount Dr. Dimbil’s opinion. See Thomas, 278 F.3d at 957 (“The ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings.”).

Likewise, the ALJ properly identified a deficiency in Dr. Dimbil’s opinion: though he provides a vague measurement of the maximum amount of time that Plaintiff could stand, lift, or bend at a time, he did not opine as to the total amount of standing, lifting, or bending that Plaintiff could do over the course of a workday. Without aggregating that time, Dr. Dimbil’s estimate is less relevant to the ALJ’s inquiry. Though Plaintiff suggests that the ALJ could have recontacted Dr. Dimbil to ask follow-up questions, such a process was not necessary here because the ALJ did not find Dr. Dimbil’s opinion to be ambiguous or inadequate. See Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir.2001) (holding that the “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”).

Because Plaintiff has not identified an error in any of the reasons provided by the ALJ as grounds to discount Dr. Dimbil’s opinion, the ALJ’s assessment of Dr. Dimbil’s opinion should be affirmed.

2. Dr. Alvarez

Dr. Alvarez completed a physical consultative examination of Plaintiff in July 2009, and provided opinions regarding Plaintiffs limited ability to lift, carry, stand, walk, sit, push, pull, climb, stoop, kneel, and crouch. AR at 349. She indicated that Plaintiff had no manipulation limitations, nor visual or communicative limitations. Id.

To the degree that Dr. Alvarez indicated that Plaintiff could lift/carry less than 20 pounds occasionally and less than 10 pounds frequently, and could walk/stand less than two hours per day and sit less than six hours per day — thereby being unable to complete a full eight-hour workday⁵ — the ALJ rejected the opinion as inconsistent with examination findings (specifically lack of knee instability, and normal strength, sensation, reflexes, and gait) and the objective longitudinal record. AR at 24, & n. 1. The ALJ also discounted Dr. Alvarez’s opinion as inconsistent with Plaintiffs self-reported daily activities, including her ability to complete self-care tasks, babysit her two young grandchildren, cook, do laundry, wash dishes, vacuum, grocery shop, manage her finances, drive a car, and ride a bus. AR at 23-24.⁶

According to Plaintiff, the ALJ erred in finding that Dr. Alvarez’s opinion was insufficiently supported, because Dr. Alvarez herself reviewed x-rays showing osteoarthritis in Plaintiffs knees, and her testing revealed that her knees have limited range of motion, tenderness and crepitation. See AR at 349. Plaintiff identifies only knee-related findings, but does not explain how those findings necessarily support Dr. Alvarez’s opinions regarding, for example, limitations on lifting, carrying, or sitting. Plaintiff also suggests that the ALJ erred in failing to consider Plaintiffs obesity “when evaluating Dr. Alvarez’s opinion,” but this purported error overlooks that Dr. Alvarez herself considered Plaintiffs obesity when evaluating her functional capacity. Dkt. 21 at 2. Dr. Alvarez noted that Plaintiffs knee pain and back pain are aggravated by her morbid obesity, but nonetheless found that, for example, Plaintiffs strength was 5/5 in all extremities, which is not necessarily consistent with her lift/carry restrictions. Thus, Dr. Alvarez herself considered Plaintiffs obesity and Plaintiff has not identified what further consideration should have been given by the ALJ. Because Plaintiff fails to identify a specific error that resulted from that alleged lack of additional consideration, the Court need not address that issue further. See generally Carmickle v. Comm’r of Social Sec. Admin., 533 F.3d 1155, 1161 n. 2 (9th Cir.2008) (declining to address issues not argued with any specificity). Thus, because Plaintiff has not shown that the ALJ erred in finding that Dr. Alvarez’s opinion was not adequately supported by clinical findings, the ALJ’s first reason for discounting Dr. Alvarez’s opinion should be affirmed.

Second, the ALJ cited Plaintiffs daily activities as inconsistent with Dr. Alvarez’s opinion. Though Plaintiff contends that the ALJ ignored the context in which Plaintiff completed her daily activities— which showed her to be more limited than the ALJ found- — -the ALJ cited evidence in

record that Plaintiff self-reported the ability to do dishes, clean the house, do laundry, sweep, and vacuum on a daily basis. See, e.g., AR at 238. She also reported the ability to complete similar tasks during a consultative examination. See AR at 358 (describing the ability to prepare food on her own, do laundry, complete house chores, grocery shop, and handle “all the financial matters in a responsible manner”). Though her testimony at the administrative hearing indicated more severe symptoms, the ALJ was not unreasonable in relying on other evidence of Plaintiff’s self-reported activities and in construing that evidence to be inconsistent with Dr. Alvarez’s opinion. See Tackett, 180 F.3d at 1098 (holding that when evidence reasonably supports either confirming or reversing the ALJ’s decision, the court should uphold the ALJ’s decision).

B. Plaintiff has Not Established that the ALJ Erred in Assessing Her RFC.

Plaintiff argues that the ALJ’s RFC assessment does not account for all of her limitations, and the Court will address first Plaintiffs allegedly omitted physical limitations before turning to consider whether the ALJ failed to account for all of Plaintiffs mental limitations.

1. Headaches and Carpal Tunnel Syndrome'7

Plaintiff alleges that the ALJ erred in first finding that her migraine headaches and carpal tunnel syndrome were not severe impairments at step two, but argues in the alternative that even if they were not severe, they should have been accounted for in the RFC assessment. Dkt. 18 at 13-14.

As to migraines, Plaintiff has not identified evidence showing that the ALJ’s findings at either step two or in the RFC assessment are erroneous. Plaintiff identifies passing references to headaches and migraine medications in Dr. Dimbil’s treatment notes, but none of those notes establish any specific functional limitations caused by Plaintiffs headaches. See AR at 297, 303, 305-06, 398, 400. Dr. Dimbil’s functional opinion did not indicate any limitations associated with headaches. See AR at 475-76. In the absence of evidence establishing limitations, Plaintiff cannot establish that the ALJ erred in failing to find the migraines to be a severe impairment, or in failing to include any particular related limitation in the RFC assessment.

As to carpal tunnel syndrome, the ALJ noted that the record contained no evidence beyond Plaintiffs self-report that she ever had carpal tunnel surgery. AR at 18. The ALJ also noted that the examinations of record failed to establish any “abnormalities that could be associated with carpal tunnel syndrome.” AR at 18 (citing AR at 294-306, 345-54, 438-64). Plaintiff points to references in the record regarding carpal tunnel syndrome, but again fails to identify any evidence establishing limitations caused by carpal tunnel syndrome. Accordingly, Plaintiff cannot establish that the ALJ erred in failing to find carpal tunnel to be a severe impairment, or in failing to account for any particular related limitation in the RFC assessment.

2. Mental Impairments

Plaintiff claims the ALJ erred in failing to include any mental limitation in her RFC assessment, despite her step-two finding that Plaintiffs depression was severe. Plaintiff acknowledges that consultative examiner Bluma Ekshtut, Psy.D., diagnosed her with depression and yet “concluded that she had essentially no work limitations even though she was often angry, hopeless, and helpless.” Dkt. 18 at 16. Though Plaintiff obviously disagrees with Dr. Ekshtut’s conclusions, she does not explain why the ALJ was not entitled to rely on Dr. Ekshtut’s opinion in order to conclude that Plaintiffs depression did not cause mental limitations.

Plaintiff also directs the Court’s attention to the opinion of State agency consultant Renee Eisenhauer, Ph.D., who found Plaintiff to have a moderate limitation as to sustained concentration and persistence. AR at 384-87. Dr. Eisenhauer explained in the narrative portion of the form that Plaintiff “is able to complete tasks, but appears to struggle with persistence at times in doing so.” AR at 386. Plaintiff does not acknowledge that when Dr. Eisenhauer’s opinion was reviewed by Gary Nelson, Ph.D., Dr. Nelson found that Plaintiff “is capable of completing complex tasks on a sustained basis”, and he affirmed Dr. Eisenhauer’s earlier opinion. AR at 411. The ALJ found that Plaintiff retained sufficient concentration capability to be able to “maintain persistence and pace in 2-hour increments with usual and customary breaks during an 8-hour workday”, and that she retains sufficient persistence and pace to meet average production standards. AR at 20. The ALJ also included that limitation in her hypothetical, and the VE testified that a person with that concentration limitation could still perform a number of occupations. See AR at 92. Because Plaintiff has not shown that the ALJ’s assessment of Plaintiffs limitations is inconsistent with the opinions of State agency consultants, those opinions do not provide a basis to argue that the ALJ erred in assessing Plaintiffs residual mental capacity. See Turner v. Comm’r of Social Sec., 613 F.3d 1217, 1223 (9th Cir.2010) (holding that ALJ need not provide reason for rejecting physician’s opinions where ALJ incorporated opinions into RFC assessment; ALJ incorporated opinions by assessing RFC limitations “entirely consistent” with limitations assessed by physician).

Furthermore, to the degree that Plaintiffs self-report indicates more severe mental limitations, the ALJ provided other reasons to discount those allegations. First, the ALJ noted that Plaintiff did not seek mental-health treatment commensurate with her complaints, and she refused to take medications and canceled or missed multiple counseling appointments. AR at 22. Though Plaintiff contends that under Nguyen v. Chafer, 100 F.3d 1462 (9th Cir.1996), the ALJ should not have construed her treatment and medication history against her, Nguyen is distinguishable. In Nguyen, the ALJ discounted evidence of depression because a claimant failed to seek treatment for any mental disorder “until late in the day,” and the Ninth Circuit found it to be unreasonable “to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation.” 100 F.3d at 1465. Plaintiff here, on the other hand, sought treatment but refused recommended medications and canceled a number of counseling appointments, which reasonably suggests that that her symptoms were not as severe as alleged. Because the ALJ’s conclusion here was reasonable, the Court should not disturb it. See Morgan v. Comm’r of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999) (“Where the evidence is susceptible to more than one rational interpretation, it is the ALJ’s conclusion that must be upheld.”).

C. The ALJ Did Not Err in Discounting Plaintiffs Credibility.

The ALJ provided a number of reasons to discount Plaintiffs credibility: inconsistent statements made to providers, medical evidence inconsistent with Plaintiffs allegations, lack of corroboration in the medical record for Plaintiffs allegations, Plaintiffs less-than-full compliance with medical treatment, the fact that Plaintiffs most recent job ended for reasons other than her alleged impairments, and inconsistent daily activities. AR at 21-23.

In assessing credibility, an ALJ must first determine whether a claimant presents “objective medical evidence of an underlying impairment ‘which could reasonably be expected to produce the pain or other symptoms alleged.’ ” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir.2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir.1991)). Given presentation of such evidence, and absent evidence of malingering, an ALJ must provide clear and convincing reasons to reject a claimant’s testimony. Id. See also Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir.2001).

According to Plaintiff, many of the ALJ’s reasons for discounting Plaintiffs testimony were not clear and convincing. Specifically, Plaintiff argues that lack of corroboration in the medical record is not a valid reason to reject a claimant’s testimony as to subjective testimony. Plaintiff next asserts that her demotion at work triggered her depression, which led to her being fired, so the ALJ incorrectly presumed that she stopped working for reasons unrelated to her impairments. Lastly, as to daily activities, Plaintiff argues that the ALJ erred in finding that her activities would be transferable to a work setting. Though the Court finds that some of the ALJ’s reasons are invalid, the remaining reasons are supported by substantial evidence and the overall credibility determination remains valid, for the reasons explained in the following sections. See Carmickle, 533 F.3d at 1162 (holding that the inclusion of an invalid reason to discount a claimant’s credibility is harmless so long as the other reasons provided are supported by substantial evidence and the error does not invalidate the ALJ’s ultimate conclusion on credibility).

1. Lack of Corroboration in the Medical Record

The ALJ provided a number of examples in the record where Plaintiffs medical records failed to corroborate her allegations of severe symptoms. Plaintiff reported bilateral knee pain in April 2008 after a fall, but “providers recorded no notable findings.” AR at 21 (citing AR at 303-04). In May 2008, she reported severe pain, and the pain was severe enough to prevent the examiner from fully evaluating her knees; the ALJ noted, however, that the examiner indicated that she “seemed to ambulate okay and showed no apparent ligament laxity.” AR at 21 (citing AR at 301-02). Though Plaintiff complained of severe knee pain, July 2009 knee x-rays revealed only “minimal degenerative changes.” AR at 21 (referencing AR at 349-51). The ALJ also noted that though Plaintiff complained of asthma flare-ups in 2010, pulmonary function tests “revealed only mild airway obstruction” and her chest x-rays “were largely normal.” AR at 21 (citing AR at 438-64). The ALJ further cited evidence that though Plaintiff complained of feeling depressed, angry, and hopeless, her July 2009 mental-status examination findings were “generally normal.” AR at 22 (citing AR at 356-57).

The Court agrees with Plaintiff that the evidence cited by the ALJ as evidence of lack of corroboration does not amount to a valid reason to discount Plaintiffs credibility, because the evidence cited does not necessarily contradict Plaintiffs testimony. The lack of evidence of degenerative knee change does not establish that Plaintiffs allegations of knee pain were not credible, and the normal findings upon a chest x-ray does not establish that Plaintiffs reported chest pain was not credible. See Rollins v. Massanari 261 F.3d 853, 856-57 (9th Cir.2001). Furthermore, the mental-status examination findings cited by the ALJ have no bearing on Plaintiffs allegations of depression, anger, and hopelessness; it is unclear why Plaintiffs ability to add, spell “world,” or follow a three-step command undermines her testimony of mental symptoms.

The invalidity of this reason is not fatal to the Commissioner’s defense, however, because the ALJ provided other valid reasons to discount Plaintiffs testimony, as discussed in the next sections.

2. Inconsistent Reporting of Symptoms

The ALJ cited to a number of records demonstrating that the Plaintiff inconsistently reported symptoms.⁸ Specifically, the ALJ noted that Plaintiff did not report asthma symptoms in her July 2009 consultative examination, and that the examiner did not indicate that Plaintiff had any respiratory abnormalities. AR at 21 (citing AR at 348). The ALJ also pointed to Plaintiffs failure to report to her providers that she experienced falls or loss of balance three or four times per day as she testified at the hearing, or to report injuries caused by those falls of that frequency. AR at 21 (referencing AR at 82).

Plaintiff does not establish that the ALJ’s inferences here were erroneous. Because the ALJ reasonably interpreted this evidence as inconsistent with Plaintiffs allegations, this reason is a valid basis on which to discount Plaintiffs credibility. See Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir.2012) (holding that inconsistencies within a claimant’s testimony is a proper factor supporting an ALJ’s adverse credibility determination).

3. Plaintiffs Work History

The ALJ cited evidence that she construed to mean that Plaintiff did not stop working due to her impairments. AR at 23 (citing AR at 322, 356). Specifically, Plaintiff reported that she was fired after first being demoted; and that being demoted caused Plaintiff to experience stress and depression, which rendered her unable to perform her job duties and led to her termination. AR at 322, 356. According to Plaintiff, the ALJ should have construed the evidence to indicate that because Plaintiffs depression after being demoted triggered her eventual termination, Plaintiffs impairments (i.e., depression) did cause her to stop working. Dkt. 18 at 20.

Though Plaintiffs alternative interpretation of the evidence may be reasonable, the ALJ’s interpretation is not unreasonable and should therefore be affirmed. See Batson v. Comm’r of Social Sec. Admin., 359 F.3d 1190, 1195 (9th Cir.2004). The ALJ reasonably found that because the first event that led to Plaintiffs termination — Plaintiff’s demotion — was not caused by Plaintiffs impairments, but by conflicts with her program supervisor. Plaintiffs hearing testimony regarding the events that led to her termination focused entirely on mistrust between and disagreements with the supervisor, rather than on circumstances caused by her impairments. See, e.g., AR at 74-75. Because the ALJ reasonably interpreted the evidence to suggest that Plaintiff stopped working for reasons other than her impairments, that work history is a valid reason to discount Plaintiffs credibility. See Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir.2001) (finding that an ALJ properly discounted a claimant’s credibility in light of, inter alia, evidence showing that the claimant’s job ended “because he was laid off, rather than because he was injured”).

4. Daily Activities

Plaintiff alleges that the ALJ erred by citing her daily activities as a basis for discounting her credibility, even though the daily activities cited do not establish that Plaintiff retained capabilities transferable to a work setting. Dkt. 18 at 20. Plaintiff overlooks the distinction between citing daily activities as evidence of work capabilities, and citing daily activities as inconsistent with other testimony. See Molina, 674 F.3d at 1112-13. Here, the ALJ cited evidence that Plaintiff both (1) denied significant difficulty with washing dishes or performing other daily activities and maintained the ability to babysit young children and travel, and yet (2) testified at the administrative hearing that she cannot wash dishes or perform other daily activities. AR at 22 (comparing AR at 54-55 with AR at 238, 358). The ALJ reasonably construed those allegations as inconsistent, and properly discounted Plaintiffs credibility on that basis. See Molina, 674 F.3d at 1113 (“Even where [a claimant’s] activities suggest some difficulty functioning, they may be grounds for discrediting the claimant to the extent that they contradict claims of a totally debilitating impairment.”).

D. The ALJ Erred at Step Five.

Plaintiff alleges that the ALJ erred in two ways with respect to her step-five findings. Dkt. 18 at 21-23. First, Plaintiff contends that the ALJ denied Plaintiffs right to cross-examine the vocational expert, when the ALJ refused to let Plaintiffs counsel ask a particular hypothetical question. Second, Plaintiff asserts that the ALJ’s RFC assessment does not match the hypothetical question posed to the VE, rendering the step-five findings unsupported. The Court will address each alleged error in turn.

1. Plaintiff was Not Denied the Right to Question the VE.

Both parties agree that a claimant is entitled to question a VE, but Plaintiffs argument overlooks the limits placed on that questioning process. Questions posed to the VE must be “material to the issues.” Hearing, Appeals, and Litigation Law Manual (“HALLEX”) 1-2-5-30, 1994 WL 637367, at *1 (Sep. 28, 2005). The ALJ retains the right to strike questions that would produce “repetitive and cumulative” testimony, or questions “designed to intimidate, harass or embarrass the witness.” HALLEX 1-2-6-60, 1993 WL 751900, at *1 (Sep. 2, 2005). The claimant’s right to question a VE extends to inquiries “into the matters at issue.” Id.

In this case, the ALJ refused to allow Plaintiffs attorney to ask the VE a hypothetical question involving an individual who is off-task 20% of the workday, citing the lack of foundation for that question:

ALJ: ... [B]ut how did you arrive at a 20 percent time? How do you translate pain into a 20 percent time of the day?

ATTY: Well, that’s based on that moderate limitation that she has from her, the mental residual functional capacity form.

ALJ: But “moderate” is not defined in that form. It’s not defined by the [Dictionary of Occupational Titles].

ATTY: That’s true so it’s less than, you know[,] it’s not as much as a [marked] or, you know, it’s not [ ] insignificant. ...

Well, so we can try different percentages and see what—

ALJ: Well, you can but you have to support it[,] otherwise we’re reaching into thin air for any percentage, you see?

ATTY: Right.

ALJ: So how do we arrive? “Moderate” is not defined. “Occasional” is defined.

ATTY: Well, we could look at some of the other, right and “occasional” is defined as or let’s use the “occasional” then.

ALJ: But why are you using “occasional”? What is that supported by?

ATTY: The same documents. The same things that I mentioned.

ALJ: But [the State agency consultant] did not use “occasional”. Are you talking about the [Psychiatric Review Technique form (“PRTF”) ] for the mental?

ATTY: Right.

ALJ: ... [T]hat’s not in the form because “occasional” is mostly used with physical limitations.

ATTY: Correct.

ALJ: So the PRTF that you’re referring to doesn’t have that. It’s in terms of “moderate” and “marked” and so forth.

ATTY: Right which, you know, we’d have to just look at some other reference to it. Well ... is that question being denied or what’s the status on it?

ALJ: Well, it is unless you can define “moderate” and then tell me where you’re getting that from because otherwise it’s, you know, you—

ATTY: Right, it’s less than “marked” and it’s more than “never”, okay, so—

ALJ: Okay, it’s ... more than “mild” but less than “marked” and less than “extreme”.

ATTY: Correct, right.

ALJ: So where does that leave us.

ATTY: Well, let’s ask the vocational expert.

ALJ: Well, absolutely not because that’s the problem. You have to, in order to ask an expert witness'a question it has to be in terms of a hypothetical and it has to be, for a vocational expert in vocationally relevant terms and it has to be supported. It’s like asking her[:] the claimant has a serious illness. Do you think she can work[?] Well, what’s serious to you is different than what’s serious to me and so it’s not a legitimate evidentiary question.

AR at 105-08 (inserting quotation marks to indicate the terms of art used). After this portion of the hearing, Plaintiffs attorney attempted to rephrase a hypothetical question for the VE, but did not return to the 20% off-task limitation. AR at 108-10.

The excerpted hearing transcript shows that the ALJ prevented Plaintiffs counsel from asking a question that was not supported by the evidence, and thus the ALJ’s restriction was proper. Plantiffs counsel’s question was based on a “moderate” concentration limitation identified in the PRTF, but Plaintiffs counsel could not provide any basis for quantifying that “moderate” limitation as 20% off-task. Indeed, Plaintiffs briefing fails to identify any support for the bald assertion that “ ‘Moderate’ is frequently conservatively defined as a 20% reduction by [ALJs] and claimant’s representatives alike.” Dkt. 18 at 22. By preventing Plaintiffs counsel from asking a question that was not supported by the record, the ALJ properly limited questioning to material issues. See HALLEX 1-2-5-30, 1-2-6-60. Plaintiff has not established error here.

2. The Written RFC Assessment is Not Necessarily Consistent with the VE Hypothetical.

The ALJ’s written RFC assessment includes a sit/stand option: “[Plaintiff] should be allowed to sit and stand at will.” AR at 20. The ALJ’s hypothetical questions posed to the VE did not expressly include an at-will sit/stand option, but merely mentioned the possibility that the individual’s primarily sedentary job would include the possibility of standing and walking for short periods throughout the day. AR at 90-96. At one point during the VE’s testimony, after the ALJ had already posed her hypothetical (which lacked any reference to sitting/standing at will), the ALJ asked whether the VE could identify any additional jobs that would allow “for that type of sitting and standing pretty much at will and uses a combination of both but mostly of course sitting”; the VE’s answer suggests that she understood the ALJ to mean that the hypothetical individual could do some jobs classified as light if they could nonetheless can be performed with a restriction to standing/walking two hours a day. AR at 93-94. The VE identified a number of unskilled jobs that the hypothetical individual could perform, and the ALJ relied on that testimony at step five. AR at 25-26.

According to Plaintiff, the ALJ’s failure to include an express “sit/stand at will” in the hypothetical undercuts the value of the VE’s testimony on which the step-five findings were based, because the ALJ’s hypothetical did not include all of the Plaintiffs limitations. Lewis v. Apfel, 236 F.3d 503, 517-18 (9th Cir.2001) (“Hypothetical questions asked of the vocational expert must ‘set out all of the claimant’s impairments.’ If the record does not support the assumptions in the hypothetical, the vocational expert’s opinion has no evidentiary value.” (quoting Gamer v. Sec’y of Health and Human Servs., 815 F.2d 1275, 1279 (9th Cir.1987))).

The Commissioner does not respond to this argument in her briefing, which the Court construes as a concession that Plaintiffs argument has merit. The Court will not manufacture a defense on the Commissioner’s behalf where Plaintiff has identified an at least plausible error, and thus will remand this matter to allow the ALJ to reconsider her RFC assessment and, if necessary, obtain additional testimony from the VE to support her step-five findings.

VIII. CONCLUSION

For the foregoing reasons, the Court recommends that this case be REVERSED and REMANDED to the Commissioner for further proceedings not inconsistent with the Court’s instructions. A proposed order accompanies this Report and Recommendation.

DATED this 7th day of June, 2013.

2 . Substantial gainful activity is work activity that is both substantial, i.e., involves significant physical and/or mental activities, and gainful, i.e., performed for profit. 20 C.F.R. § 404.1572.

3 . The actual date is deleted in accordance with Local Rule CR 5.2, W.D. Washington.

4 . Plaintiff's briefing segues from a discussion of the ALJ’s rejection of the opinions of Drs. Dimbil and Alvarez into an argument regarding the ALJ's duty to develop the record regarding the severity of Plaintiff's knee pain. Dkt. 18 at 8-11. It is unclear what error Plaintiff is alleging with this line of argument: she does not explain whether she is alleging a step-two error (though the ALJ found Plaintiff’s knee arthritis was a severe impairment, in combination with her obesity), whether she is contending that the ALJ failed to account for Plaintiff's obesity in the RFC assessment, or what triggered the ALJ's duty to further develop the record. Furthermore, Plaintiff's briefing seamlessly transitions from a discussion of Plaintiff's obesity into a discussion of the ALJ’s "dismissiveness,” without identifying a particular error or explaining how it was prejudicial. Dkt. 18 at 11-12. Plaintiff then moves on to argue that the State agency consultant’s opinion is not supported by substantial evidence, citing evidence which might support another conclusion but fails to establish the lack of substantial evidence to support the consultant’s opinion. Dkt. 18 at 12. Finally, Plaintiff alleges that the ALJ erred in speculating that Dr. Dimbil’s cane prescription was a precaution rather than medically necessary, but does not explain how this finding was prejudicial. Dkt. 18 at 13. All of these arguments are contained within a section titled "Medical Source Opinions,” and leave much to be desired in terms of specifying a particular error or errors and the alleged prejudice flowing therefrom. This Report and Recommendation addresses the issues briefed with specificity, and deems all other issues waived. See, e.g., Perez v. Barnhart, 415 F.3d 457, 462 n. 4 (5th Cir.2005) (finding that a poorly organized claimant's brief waived some arguments due to inadequate briefing).

5 . The ALJ proposed at the hearing to recontact Dr. Alvarez to determine whether she intended to indicate that Plaintiff could not complete an eight-hour workday, but Plaintiff's counsel objected to that action. See AR at 24 n. 1.

6 . The ALJ provided an additional reason to discount Dr. Alvarez’s opinion, in a different section of the decision: the ALJ earlier noted that some of Dr. Alvarez’s findings were based on Plaintiff’s self-report rather than objective testing. AR at 21. Because the ALJ properly discounted Plaintiffs credibility, infra Part VII.C, the ALJ was entitled to discount Dr. Alvarez's opinion to the degree that it was based on Plaintiff’s non-credible self-report. See Bray v. Comm’r of Social Sec. Admin., 554 F.3d 1219, 1228 (9th Cir.2009).

7 . The Commissioner does not address Plaintiffs argument regarding headaches and carpal tunnel syndrome in her Response. Because Plaintiff has failed to identify a proper error as to those alleged impairments, however, the Court will not construe the Commissioner's failure to respond as a concession.

8 . One of the ALJ's references in this category appears to be in error: the ALJ stated that Plaintiff denied "any significant health problems” during a May 2009 examination. AR at 21. The ALJ did not cite to the record to support that statement, and the Commissioner’s briefing summarizes that finding and directs the Court's attention to AR at 341 (Dkt. 19 at 5), which is a May 2009 treatment note — but it contains no indication that Plaintiff denied significant health problems. The treatment note instead indicates that Plaintiff reported experiencing "[m]edical issues ongoing with her obesity and knees.” AR at 341. Without a valid citation to evidence supporting the ALJ's finding that Plaintiff reported no significant health problems in May 2009, the Court presumes the ALJ’s finding as to that purported evidence was erroneous.