(SS) Ford v. Commissioner of Social Security

• Court: District Court, E.D. California
• Decided: September 25, 2020
• Docket: 2:18-cv-03153
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SANDRA M. FORD, No. 2:18-CV-3153-DMC 12 Plaintiff, 13 v. MEMORANDUM OPINION AND ORDER 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 18 Plaintiff, who is proceeding with retained counsel, brings this action for judicial 19 review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). 20 Pursuant to the written consent of all parties, see ECF Nos. 7 and 8, this case is before the 21 undersigned as the presiding judge for all purposes, including entry of final judgment, see 28 22 U.S.C. § 636(c). Pending before the Court are the parties’ briefs on the merits. See ECF Nos. 18 23 and 21. 24 The Court reviews the Commissioner’s final decision to determine whether it is: 25 (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a 26 whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is 27 more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521 28 (9th Cir. 1996). It is “such evidence as a reasonable mind might accept as adequate to support a 1 conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, including 2 both the evidence that supports and detracts from the Commissioner’s conclusion, must be 3 considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones v. 4 Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The Court may not affirm the Commissioner’s 5 decision simply by isolating a specific quantum of supporting evidence. See Hammock v. 6 Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative 7 findings, or if there is conflicting evidence supporting a particular finding, the finding of the 8 Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 9 Therefore, where the evidence is susceptible to more than one rational interpretation, one of 10 which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v. 11 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal 12 standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th 13 Cir. 1988). 14 For the reasons discussed below, the Commissioner’s final decision is affirmed. 15 16 I. THE DISABILITY EVALUATION PROCESS 17 To achieve uniformity of decisions, the Commissioner employs a five-step 18 sequential evaluation process to determine whether a claimant is disabled. See 20 C.F.R. 19 §§ 404.1520 (a)-(f) and 416.920(a)-(f). The sequential evaluation proceeds as follows:

20 Step 1 Determination whether the claimant is engaged in substantial gainful activity; if so, the claimant is presumed 21 not disabled and the claim is denied;

22 Step 2 If the claimant is not engaged in substantial gainful activity, determination whether the claimant has a severe 23 impairment; if not, the claimant is presumed not disabled and the claim is denied; 24 Step 3 If the claimant has one or more severe impairments, 25 determination whether any such severe impairment meets or medically equals an impairment listed in the regulations; 26 if the claimant has such an impairment, the claimant is presumed disabled and the claim is granted; 27

28 / / / 1 Step 4 If the claimant’s impairment is not listed in the regulations, determination whether the impairment prevents the 2 claimant from performing past work in light of the claimant’s residual functional capacity; if not, the claimant 3 is presumed not disabled and the claim is denied;

4 Step 5 If the impairment prevents the claimant from performing past work, determination whether, in light of the claimant’s 5 residual functional capacity, the claimant can engage in other types of substantial gainful work that exist in the 6 national economy; if so, the claimant is not disabled and the claim is denied. 7 See 20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f). 8 9 To qualify for benefits, the claimant must establish the inability to engage in 10 substantial gainful activity due to a medically determinable physical or mental impairment which 11 has lasted, or can be expected to last, a continuous period of not less than 12 months. See 42 12 U.S.C. § 1382c(a)(3)(A). The claimant must provide evidence of a physical or mental 13 impairment of such severity the claimant is unable to engage in previous work and cannot, 14 considering the claimant’s age, education, and work experience, engage in any other kind of 15 substantial gainful work which exists in the national economy. See Quang Van Han v. Bower, 16 882 F.2d 1453, 1456 (9th Cir. 1989). The claimant has the initial burden of proving the existence 17 of a disability. See Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). 18 The claimant establishes a prima facie case by showing that a physical or mental 19 impairment prevents the claimant from engaging in previous work. See Gallant v. Heckler, 753 20 F.2d 1450, 1452 (9th Cir. 1984); 20 C.F.R. §§ 404.1520(f) and 416.920(f). If the claimant 21 establishes a prima facie case, the burden then shifts to the Commissioner to show the claimant 22 can perform other work existing in the national economy. See Burkhart v. Bowen, 856 F.2d 23 1335, 1340 (9th Cir. 1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); Hammock 24 v. Bowen, 867 F.2d 1209, 1212-1213 (9th Cir. 1989). 25 / / / 26 / / / 27 / / / 28 / / / 1 II. THE COMMISSIONER’S FINDINGS 2 Plaintiff applied for social security benefits on March 3, 2015. See CAR 10.1 In 3 the application, plaintiff claims disability began on October 19, 2011. See id. Plaintiff later 4 amended her onset date to February 25, 2015. See id. Plaintiff’s claim was initially denied. 5 Following denial of reconsideration, plaintiff requested an administrative hearing, which was held 6 on July 28, 2017, before Administrative Law Judge (ALJ) Sheila Walters. In a January 29, 2018 7 decision, the ALJ concluded plaintiff is not disabled based on the following relevant findings:

8 1. The claimant has the following severe impairment(s): seronegative rheumatoid arthritis; fibromyalgia; Schnitzler’s syndrome; asthma; 9 degenerative joint disease of the right knee status post-surgery; degenerative joint disease of the first carpal-metacarpal joint; 10 osteoarthritis of the hands; degenerative disc disease of the lumbar spine; mild degenerative joint disease of the sacroiliac joints 11 (trochanteric bursitis); scoliosis; and tendonitis of the right shoulder and elbow. 12 2. The claimant does not have an impairment or combination of 13 impairments that meets or medically equals an impairment listed in the regulations; 14 3. The claimant has the following residual functional capacity: to 15 perform light work as defined in 20 CFR 404,1567(b) except she is able to lift and carry ten pounds frequently and twenty pounds 16 occasionally; to sit for at least six hours of an eight-hour workday; to stand and/or walk for at least six hours of an eight-hour 17 workday; she is limited to occasional climbing of ramps and stairs; she is precluded from climbing of ladders, ropes, and scaffolds; she 18 is limited to occasional balancing, stooping, kneeling, crouching, and crawling; she should avoid concentrated exposure to fumes, 19 odors, dusts, smoke, gases, poor ventilation (and so forth); and she is able to perform frequent fine manipulation and frequent 20 overhead-reaching.

21 4. Considering the claimant’s age, education, work experience, residual functional capacity, and vocational expert testimony, there 22 are jobs that exist in significant numbers in the national economy that the claimant can perform. 23 See id. at 12-23. 24 25 After the Appeals Council declined review on October 3, 2018, this appeal followed. 26 / / / 27 1 Citations are the to the Certified Administrative Record (CAR) lodged on June 4, 28 1 III. DISCUSSION 2 Plaintiff presents three arguments in her appeal: (1) the ALJ improperly evaluated 3 the medical opinions of plaintiff’s treating doctors; (2) the ALJ improperly rejected plaintiff’s 4 testimony; and (3) the ALJ’s hypothetical question to the vocational failed to consider evidence 5 from plaintiff and her doctors. 6 A. Medical Opinions 7 “The ALJ must consider all medical opinion evidence.” Tommasetti v. Astrue, 8 533 F.3d 1035, 1041 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527(b)). The ALJ errs by not 9 explicitly rejecting a medical opinion. See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 10 2014). The ALJ also errs by failing to set forth sufficient reasons for crediting one medical 11 opinion over another. See id. 12 Under the regulations, only “licensed physicians and certain qualified specialists” 13 are considered acceptable medical sources. 20 C.F.R. § 404.1513(a); see also Molina v. Astrue, 14 674 F.3d 1104, 1111 (9th Cir. 2012). Where the acceptable medical source opinion is based on 15 an examination, the “. . . physician’s opinion alone constitutes substantial evidence, because it 16 rests on his own independent examination of the claimant.” Tonapetyan v. Halter, 242 F.3d 1144, 17 1149 (9th Cir. 2001). The opinions of non-examining professionals may also constitute 18 substantial evidence when the opinions are consistent with independent clinical findings or other 19 evidence in the record. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Social 20 workers are not considered an acceptable medical source. See Turner v. Comm’r of Soc. Sec. 21 Admin., 613 F.3d 1217, 1223-24 (9th Cir. 2010). Nurse practitioners and physician assistants 22 also are not acceptable medical sources. See Dale v. Colvin, 823 F.3d 941, 943 (9th Cir. 2016). 23 Opinions from “other sources” such as nurse practitioners, physician assistants, and social 24 workers may be discounted provided the ALJ provides reasons germane to each source for doing 25 so. See Popa v. Berryhill, 872 F.3d 901, 906 (9th Cir. 2017), but see Revels v. Berryhill, 874 26 F.3d 648, 655 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527(f)(1) and describing circumstance 27 when opinions from “other sources” may be considered acceptable medical opinions). 28 / / / 1 The weight given to medical opinions depends in part on whether they are 2 proffered by treating, examining, or non-examining professionals. See Lester v. Chater, 81 F.3d 3 821, 830-31 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating 4 professional, who has a greater opportunity to know and observe the patient as an individual, than 5 the opinion of a non-treating professional. See id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th 6 Cir. 1996); Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). The least weight is given to the 7 opinion of a non-examining professional. See Pitzer v. Sullivan, 908 F.2d 502, 506 & n.4 (9th 8 Cir. 1990). 9 In addition to considering its source, to evaluate whether the Commissioner 10 properly rejected a medical opinion the court considers whether: (1) contradictory opinions are in 11 the record; and (2) clinical findings support the opinions. The Commissioner may reject an 12 uncontradicted opinion of a treating or examining medical professional only for “clear and 13 convincing” reasons supported by substantial evidence in the record. See Lester, 81 F.3d at 831. 14 While a treating professional’s opinion generally is accorded superior weight, if it is contradicted 15 by an examining professional’s opinion which is supported by different independent clinical 16 findings, the Commissioner may resolve the conflict. See Andrews v. Shalala, 53 F.3d 1035, 17 1041 (9th Cir. 1995). 18 A contradicted opinion of a treating or examining professional may be rejected 19 only for “specific and legitimate” reasons supported by substantial evidence. See Lester, 81 F.3d 20 at 830. This test is met if the Commissioner sets out a detailed and thorough summary of the 21 facts and conflicting clinical evidence, states her interpretation of the evidence, and makes a 22 finding. See Magallanes v. Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989). Absent specific and 23 legitimate reasons, the Commissioner must defer to the opinion of a treating or examining 24 professional. See Lester, 81 F.3d at 830-31. The opinion of a non-examining professional, 25 without other evidence, is insufficient to reject the opinion of a treating or examining 26 professional. See id. at 831. In any event, the Commissioner need not give weight to any 27 conclusory opinion supported by minimal clinical findings. See Meanel v. Apfel, 172 F.3d 1111, 28 1113 (9th Cir. 1999) (rejecting treating physician’s conclusory, minimally supported opinion); see 1 also Magallanes, 881 F.2d at 751. 2 At Step 4, the ALJ evaluated the medical opinion evidence of record. See CAR 3 20-21. The ALJ gave “considerable weight” to the opinions of the agency reviewing physicians, 4 who opined that plaintiff is capable of light work with some postural limitations. See id. at 20. 5 The ALJ gave “little weight” to the February 2017 opinions of plaintiff’s treating physician, Dr. 6 Phadke, and plaintiff’s treating rheumatologist, Dr. Chalchian. See id. at 20-21. Plaintiff argues 7 the opinions of her treating physicians, Drs. Phadke and Chalchian, were uncontradicted and the 8 ALJ failed to provide clear and convincing reasons for rejecting them. 9 1. Dr. Phadke 10 In a letter dated February 10, 2017, Dr. Phadke, plaintiff’s treating physician, 11 summarized plaintiff’s conditions and rendered an opinion:

12 1. The patient has a longstanding history of diffuse myofascial pain. She notes stiffness x2 hours in all of her joints. She carries a diagnosis of 13 possible Schnitzler’s syndrome and fibromyalgia with the latter being markedly symptomatic. She follows with rheumatologist at Stanford 14 without improvement with potent immunosuppressive therapy and chronic pain medications. She has been referred to the pain clinic at 15 Stanford for future evaluation as well as physical therapy for treatment, but prognosis is guarded. 16 2. Chronic R knee pain d/t osteoarthritis of the knee, unresponsive to 17 steroid and orthovisc injection and non-responsive [sic] to trochanteric injections. 18 3. Memory impairment and brain fog - neuropsychiatric testing completed 19 with results pending.

20 4. Lumbosacral radiculopathy pending physical therapy.

21 5. Osteoarthritis of the hands pending hand injection.

22 The totality of these conditions produces marked physical impairments, which prevent patient from doing numerous instrumental 23 activities of daily living including gardening, cooking, and even writing. Beyond markedly affecting her quality of life they leave her so functionally 24 limited as to likely be permanently medically disabling. 25 CAR 753. 26 / / / 27 / / / 28 / / / 1 The ALJ gave little weight to Dr. Phadke’s opinion. See CAR 20. Although 2 noting that a treating physician’s opinion is typically granted more weight, the ALJ found that Dr. 3 Phadke’s opinion was “. . .brief, vague, and grossly overstates the claimant’s physical limitations 4 while providing inadequate justification for its conclusion.” Id. (exhibit sources omitted). 5 Additionally, the ALJ rejected Dr. Phadke’s opinion that plaintiff’s conditions are permanently 6 disabling because the Commissioner reserves judgment on that issue. See id. 7 Plaintiff contends the ALJ failed to meet the standard of rejecting a treating 8 doctor’s uncontradicted opinion only for “clear and convincing reasons.” See ECF No. 18 at 11 9 (citing Lester, 81 F.3d at 830-31). Instead, plaintiff argues that the ALJ’s reasoning for giving 10 Dr. Phadke’s opinion little weight was itself brief and vague in response to the letter’s detailed 11 account of plaintiff’s medical history. According to plaintiff:

12 Contrary to the ALJ’s assertions, Dr. Phadke’s opinion is 13 supported by and consistent with the objective medical evidence in the record as a whole. Dr. Phadke’s above opinion did not simply state Ford 14 was disabled without providing an explanation. Dr. Phadke detailed the extensive treatments attempted for each of Ford’s impairments and the 15 poor response Ford has had to them all. The ALJ rejected the opinion of Ford’s treating doctor, instead assigning “considerable weight” to the 16 opinions of the non-examining state agency reviewing doctors who 17 reviewed the record in 2015, well before the generation of the majority of the objective medical evidence. The ALJ’s findings regarding Dr. 18 Phadke’s opinion are themselves brief and vague and the ALJ does not try to explain which aspects of Dr. Phadke’s opinion are inconsistent with 19 which part of the objective medical evidence. The ALJ herself found all of the impairments Dr. Phadke described were medically determinable and 20 severe. It was error for the ALJ to then reject this treating doctor’s 21 opinion as to how those impairments affect Ford’s ability to perform work activity without providing the required clear and convincing reasons. 22 Id. at 12 (internal source citations omitted). 23 24 Plaintiff’s argument is unpersuasive. Dr. Phadke’s February 2017 letter does not 25 express any opinions regarding plaintiff’s functional capabilities, other than an opinion on the 26 ultimate issue of disability reserved to the Commissioner. While the doctor outlines plaintiff’s 27 reported complaints, medical history, and various diagnoses, Dr. Phadke notes only generally that 28 plaintiff has “marked physical impairments” which preclude “numerous instrumental activities of 1 daily living.” CAR753. Dr. Phadke does not identify any specific impairments, limitations, or 2 activities in rendering this conclusion. The ALJ did not err in rejecting Dr. Phadke’s conclusory 3 opinion. See Meanel, 172 F.3d at 1113. 4 2. Dr. Chalchian 5 Dr. Chalchian, plaintiff’s treating rheumatologist, also submitted an opinion letter 6 in February 2017. As with Dr. Phadke, Dr. Chalchian lists plaintiff’s reported symptoms and 7 treatment history. See CAR 756. According to Dr. Chalchian, plaintiff’s impairments prevent 8 her from working. See id. The ALJ rejected Dr. Chalchian’s opinion stating that, in addition to 9 many of the reasons given for rejecting Dr. Phadke’s opinion, he “fails to identify a specific function- 10 by-function assessment of the claimant’s capabilities.” CAR 20-21. 11 Repeating her previous argument, plaintiff contends the ALJ erred with respect to Dr. 12 Chalchian by not setting forth clear and convincing reasons for rejecting an uncontradicted treating 13 source. The Court is similarly unpersuaded because, like Dr. Phadke’s opinion, Dr. Chalchian’s 14 opinion is entirely conclusory and touches on the ultimate issue of disability reserved to the 15 Commissioner. Moreover, unlike Dr. Phadke’s opinion, Dr. Chalchian’s opinion also conflicts with 16 its own conclusion. Half of the letter is dedicated to supporting plaintiff for permanent disability 17 based on her rheumatologic disease. See CAR 756. Dr. Chalchian notes, however, that treatment has 18 reasonably controlled plaintiff’s symptoms. See id. This also conflicts with Dr. Phadke’s opinion that 19 plaintiff’s limitations are totally disabling. While plaintiff contends that Dr. Chalchian’s opinion is 20 fully supported by the medical evidence, see ECF No. 18 at 13, she fails to reference any supporting 21 documents from the record. 22 B. Plaintiff’s Testimony 23 The Commissioner determines whether a disability applicant is credible, and the 24 court defers to the Commissioner’s discretion if the Commissioner used the proper process and 25 provided proper reasons. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996). An explicit 26 credibility finding must be supported by specific, cogent reasons. See Rashad v. Sullivan, 903 27 F.2d 1229, 1231 (9th Cir. 1990). General findings are insufficient. See Lester v. Chater, 81 F.3d 28 821, 834 (9th Cir. 1995). Rather, the Commissioner must identify what testimony is not credible 1 and what evidence undermines the testimony. See id. Moreover, unless there is affirmative 2 evidence in the record of malingering, the Commissioner’s reasons for rejecting testimony as not 3 credible must be “clear and convincing.” See id.; see also Carmickle v. Commissioner, 533 F.3d 4 1155, 1160 (9th Cir. 2008) (citing Lingenfelter v Astrue, 504 F.3d 1028, 1936 (9th Cir. 2007), 5 and Gregor v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006)). 6 If there is objective medical evidence of an underlying impairment, the 7 Commissioner may not discredit a claimant’s testimony as to the severity of symptoms merely 8 because they are unsupported by objective medical evidence. See Bunnell v. Sullivan, 947 F.2d 9 341, 347-48 (9th Cir. 1991) (en banc). As the Ninth Circuit explained in Smolen v. Chater:

10 The claimant need not produce objective medical evidence of the 11 [symptom] itself, or the severity thereof. Nor must the claimant produce objective medical evidence of the causal relationship between the 12 medically determinable impairment and the symptom. By requiring that the medical impairment “could reasonably be expected to produce” pain or 13 another symptom, the Cotton test requires only that the causal relationship be a reasonable inference, not a medically proven phenomenon. 14

15 80 F.3d 1273, 1282 (9th Cir. 1996) (referring to the test established in Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986)). 16 17 The Commissioner may, however, consider the nature of the symptoms alleged, 18 including aggravating factors, medication, treatment, and functional restrictions. See Bunnell, 19 947 F.2d at 345-47. In weighing credibility, the Commissioner may also consider: (1) the 20 claimant’s reputation for truthfulness, prior inconsistent statements, or other inconsistent 21 testimony; (2) unexplained or inadequately explained failure to seek treatment or to follow a 22 prescribed course of treatment; (3) the claimant’s daily activities; (4) work records; and (5) 23 physician and third-party testimony about the nature, severity, and effect of symptoms. See 24 Smolen, 80 F.3d at 1284 (citations omitted). It is also appropriate to consider whether the 25 claimant cooperated during physical examinations or provided conflicting statements concerning 26 drug and/or alcohol use. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). If the 27 claimant testifies as to symptoms greater than would normally be produced by a given 28 impairment, the ALJ may disbelieve that testimony provided specific findings are made. See 1 Carmickle, 533 F.3d at 1161 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). 2 At Step 4, the ALJ evaluated the credibility of plaintiff’s statements and testimony. 3 See CAR 16-20. Plaintiff alleged disabling symptoms during the relevant time period as a result 4 of her impairments. See id. at 16. The ALJ determined: “In terms of the claimant’s alleged 5 difficulties, despite her allegations of pain and limited functioning, the objective medical findings 6 in the record revealed largely unremarkable findings or symptoms otherwise controlled with 7 conservative treatment modalities, as discussed below.” Id. at 17. The ALJ then discussed the 8 objective medical evidence. See id. at 17-20. 9 Plaintiff argues the ALJ’s conclusion is undermined by plaintiff’s history of 10 treatment for pain which has not, according to her treating sources, been effective. According to 11 plaintiff:

12 Contrary to the ALJ’s assertions, as discussed above regarding the opinions of Ford’s treating doctors, the record shows multiple different 13 medications, injections, physical therapy, and potent immunosuppressive injections have failed to alleviate Ford’s symptoms from fibromyalgia and 14 degenerative disc and joint disease. (Tr. 753, 756.)

15 ECF No. 18, pg. 15. 16 This argument is unpersuasive. To the extent plaintiff’s pain management treatment was 17 ineffective, one would expect plaintiff to have sought more aggressive treatment in the fact of 18 totally disabling pain. Plaintiff, however, has pointed to no evidence suggesting she did. See 19 Smolen, 80 F.3d at 1284 (concluding that the unexplained failure to seek treatment constitutes a 20 valid reason to discount a claimant’s credibility). 21 Plaintiff also contends that the ALJ’s reference “generally” to inconsistency with 22 the objective medical evidence is insufficient because the ALJ “identified no particular findings 23 which contradicted any of the specific functional deficits Ford described.” ECF No. 18, pg. 15. 24 This contention is belied by the hearing decision in which the ALJ meticulously discussed each 25 severe impairment, the symptoms alleged to be associated with that particular impairment, and 26 the objective findings related to the impairment. See CAR 17-20. 27 / / / 28 / / / 1 Finally, plaintiff addresses her complaints of pain associated with fibromyalgia. 2 Citing Benecke v. Barnhart, 379 F.3d 587 (9th Cir. 2004), plaintiff contends that the ALJ erred by 3 relying on inconsistency with the objective evidence to discount her complaints of pain. 4 Plaintiff’s reliance on Benecke is misplaced. In that case, the Ninth Circuit criticized the ALJ’s 5 reliance on a claimant’s limited daily activities to discount allegations of disabling fibromyalgia 6 pain. See id. In this case, the ALJ did not rely on plaintiff’s daily activities. As plaintiff 7 acknowledged, the ALJ cites inconsistency with the objective evidence as well as plaintiff’s lack 8 of aggressive treatment for pain, both of which are specific and legitimate reasons supported by 9 substantial evidence. 10 C. Hypothetical Questions 11 Hypothetical questions posed to a vocational expert must set out all the substantial, 12 supported limitations and restrictions of the particular claimant. See Magallanes v. Bowen, 881 13 F.2d 747, 756 (9th Cir. 1989). If a hypothetical does not reflect all the claimant’s limitations, the 14 expert’s testimony as to jobs in the national economy the claimant can perform has no evidentiary 15 value. See DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991). While the ALJ may pose to 16 the expert a range of hypothetical questions based on alternate interpretations of the evidence, the 17 hypothetical that ultimately serves as the basis for the ALJ’s determination must be supported by 18 substantial evidence in the record as a whole. See Embrey v. Bowen, 849 F.2d 418, 422-23 (9th 19 Cir. 1988). By responding to hypothetical questions, the vocational expert testifies as to: (1) what 20 jobs the claimant would be able to perform; and (2) the availability of such jobs in the national 21 economy. See Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999). 22 Plaintiff argues that the ALJ erred in posing a hypothetical question to the 23 vocational expert without the appropriate limitations. See ECF No. 18 at 17. Plaintiff contends 24 the vocational expert’s hypothetical assumptions were incomplete because the ALJ improperly 25 rejected her statements and testimony and the opinions of her treating doctors. This argument, 26 which is dependent on plaintiff’s prior arguments, is likewise unpersuasive. As previously 27 discussed, the ALJ did not err in rejecting the opinions of the treating doctors or plaintiff’s 28 subjective statements. wOAOe 6 LO UV YG EYES OUT IR ee AY tv VI LG

1 IV. CONCLUSION 2 Based on the foregoing, the court concludes that the Commissioner’s final decision 3 | is based on substantial evidence and proper legal analysis. Accordingly, IT IS HEREBY 4 | ORDERED that: 5 1. Plaintiff's motion for summary judgment, ECF No. 18, is denied; 6 2. Defendant’s motion for summary judgment, ECF No. 21, is granted; 7 3. The Commissioner’s final decision is affirmed; and 8 4. The Clerk of the Court is directed to enter judgment and close this file. 9 10 11 | Dated: September 25, 2020 Ssvcqo_ DENNIS M. COTA 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13