CHAPTER 10.
The claimant has the
burden of proof and the burden of going forward with the evidence at Steps 1
through 4. You must prove with clear, cogent, and convincing evidence that you
have a severe mental or physical impairment.
At Step 5 the burden then shifts to the
Commissioner of SSA to show that a significant number of jobs exist in the
national economy which the claimant can perform.
The ALJ has a duty to weigh all of the evidence
in the record to reach an RFC assessment, however he but is not required to discuss each piece of
evidence. A claimant may offer "other source" opinion, such as
evidence from physician's assistants, physical therapists, chiropractors, and
letters from preachers, priests, and rabbis.
GILMORE-WILLIAMS v. ASTRUE
ARMEDA GILMORE-WILLIAMS, Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.
v.
MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.
Case No.
09-1276-SAC.
United States
District Court, D. Kansas.
July 26, 2010.
MEMORANDUM AND ORDER
SAM A. CROW, Senior District Judge.
This is an action reviewing the final decision of the
Commissioner of Social Security denying the plaintiff supplemental security
income payments. The matter has been fully briefed by the parties.
I. General legal standards
The court's standard of review is set forth in 42 U.S.C. §
405(g), which provides that "the findings of the Commissioner as to any
fact, if supported by substantial evidence, shall be conclusive." The
court should review the Commissioner's decision to determine only whether the
decision was supported by substantial evidence and whether the Commissioner
applied the correct legal standards. Glenn v. Shalala, 21 F.3d 983, 984
(10th Cir. 1994). Substantial evidence requires more than a scintilla, but less
than a preponderance, and is satisfied by such evidence that a reasonable mind
might accept to support the conclusion. The determination of whether
substantial evidence supports the Commissioner's decision is not simply a
quantitative exercise, for evidence is not substantial if it is overwhelmed by
other evidence or if it really constitutes mere conclusion. Ray v. Bowen,
865 F.2d 222, 224 (10th Cir. 1989). Although the court is not to reweigh the
evidence, the findings of the Commissioner will not be mechanically accepted.
Nor will the findings be affirmed by isolating facts and labeling them
substantial evidence, as the court must scrutinize the entire record in
determining whether the Commissioner's conclusions are rational. Graham v.
Sullivan, 794 F. Supp. 1045, 1047 (D. Kan. 1992). The court should examine
the record as a whole, including whatever in the record fairly detracts from
the weight of the Commissioner's decision and, on that basis, determine if the
substantiality of the evidence test has been met. Glenn, 21 F.3d at 984.
The Social Security Act provides that an individual
shall be determined to be under a disability only if the claimant can establish
that they have a physical or mental impairment expected to result in death or
last for a continuous period of twelve months which prevents the claimant from
engaging in substantial gainful activity (SGA). The claimant's physical or
mental impairment or impairments must be of such severity that they are not
only unable to perform their previous work but cannot, considering their age,
education, and work experience, engage in any other kind of substantial gainful
work which exists in the national economy. 42 U.S.C. § 423(d).
The Commissioner has established a five-step sequential
evaluation process to determine disability. If at any step a finding of
disability or non-disability can be made, the Commissioner will not review the
claim further. At step one, the agency will find non-disability unless the
claimant can show that he or she is not working at a "substantial gainful
activity." At step two, the agency will find non-disability unless the
claimant shows that he or she has a "severe impairment," which is
defined as any "impairment or combination of impairments which
significantly limits [the claimant's] physical or mental ability to do basic
work activities." At step three, the agency determines whether the
impairment which enabled the claimant to survive step two is on the list of
impairments presumed severe enough to render one disabled. If the claimant's
impairment does not meet or equal a listed impairment, the inquiry proceeds to
step four, at which the agency assesses whether the claimant can do his or her
previous work; unless the claimant shows that he or she cannot perform their
previous work, they are determined not to be disabled. If the claimant survives
step four, the fifth and final step requires the agency to consider vocational
factors (the claimant's age, education, and past work experience) and to
determine whether the claimant is capable of performing other jobs existing in
significant numbers in the national economy. Barnhart v. Thomas, 124 S.
Ct. 376, 379-380 (2003).
The claimant bears the burden of proof through step four of
the analysis. Nielson v. Sullivan,
992 F.2d 1118, 1120 (10th Cir. 1993). At step five, the burden shifts
to the Commissioner to show that the claimant can perform other work that
exists in the national economy. Nielson, 992 F.2d at 1120; Thompson
v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993). The Commissioner
meets this burden if the decision is supported by substantial evidence. Thompson,
987 F.2d at 1487.
Before going from step three to step four, the agency will
assess the claimant's residual functional capacity (RFC). This RFC assessment
is used to evaluate the claim at both step four and step five. 20 C.F.R. §§
404.1520(a)(4), 404.1520 (e,f,g); 416.920(a)(4), 416.920(e,f,g).
II. History of case
On May 24, 2007, administrative law judge (ALJ) William G.
Horne issued his decision (R. at 14-23). Plaintiff alleges that she has been
disabled since February 17, 1997 (R. at 14). At step one, the ALJ determined
that plaintiff has not performed substantial gainful activity since March 5,
2004, the date of her application for benefits (R. at 16). At step two, the ALJ
found that plaintiff had the following severe impairments: a disorder of the
back and knees and a brain injury (R. at 16). At step three, the ALJ determined
that plaintiff's impairments do not meet or equal a listed impairment (R. at
16). After determining plaintiff's RFC (R. at 17), the ALJ found at step four
that plaintiff has no past relevant work (R. at 21). At step five, the ALJ
found that plaintiff can perform other work that exists in significant numbers
in the national economy (R. at 21-22). Therefore, the ALJ concluded that
plaintiff was not disabled (R. at 22).
III. Did the ALJ fail to consider all the medical opinion
evidence?
An ALJ must evaluate every medical opinion in the record,
although the weight given to each opinion will vary according to the
relationship between the disability claimant and the medical professional. Hamlin
v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004). Even on
issues reserved to the Commissioner, including plaintiff's RFC and the ultimate
issue of disability, opinions from any medical source must be carefully
considered and must never be ignored. Social Security Ruling (SSR) 96-5p, 1996
WL 374183 at *2-3. It is clear legal error to ignore a medical opinion. Victory
v. Barnhart, 121 Fed. Appx. 819, 825 (10th Cir. Feb. 4, 2005).
Dr. Brown, plaintiff's treating physician, opined that
plaintiff had the following physical limitations:
1. lift and/or carry 20 pounds
occasionally and 15 pounds frequently
2. stand and/or walk for 30 minutes
continuously and for 4 hours in a 8 hour workday
3. sit for 30 minutes continuously
and for 5 hours in an 8 hour workday
4. never climb, balance or stoop
5. occasionally kneel, crouch,
crawl, reach, handle and finger
6. avoid any exposure to hazards
and humidity
7. avoid moderate exposure to
extreme cold and heat, weather and dust/fumes
8. avoid concentrated exposure to
wetness/humidity
(R. at 465-466). On March 22, 2004, Dr. Brown, when asked
if plaintiff could participate in an employment or training program, responded:
"unlikely at this point" (R. at 317). When asked the same question on
March 1, 2005, Dr. Brown responded: "not able to at this point" (R.
at 473). None of these opinions were mentioned or discussed by the ALJ in
his decision.[ 1 ]
Defendant asserts that Dr. Brown's physical RFC opinions
were "generally consistent" with the physical limitations in the
ALJ's RFC findings (Doc. 16 at 19). The ALJ's RFC findings, in relevant part,
are therefore compared below with the opinions of Dr. Brown:
category ALJ
Dr.
Brown
sit 6 hours/ 30
minutes at a time,
8 hour workday 5
hours/8 hour workday
stand/walk
6 hours/30 minutes at a time,
8 hour workday 4 hours/8 hour workday
climb no
limitation
never
balance no
limitation
never
stoop less
than never
never
frequent or occasional
(R. at 17, 528, 465-466). In his RFC findings, the ALJ
found that plaintiff could generally perform a "wide range of light
work" (R. at 17). At the hearing, the ALJ, in his hypothetical question,
stated that plaintiff could perform the full range of light work, with certain
additional exceptions (R. at 528). The full range of light work requires
standing or walking, off and on, for a total of approximately 6 hours of an
8-hour workday. SSR 83-10, 1983 WL 31251 at *6.
The ALJ found that plaintiff could stand/walk for 6 hours
of an 8 hour workday, or generally perform light work; however Dr. Brown
limited plaintiff to standing/walking for 30 minutes at a time, and for 4 hours
in an 8 hour workday. Furthermore, Dr. Brown stated that plaintiff could never
climb, balance or stoop; however, the ALJ included no limitation in climbing or
balancing, and found that plaintiff could occasionally stoop.
Thus, the ALJ's RFC findings are not consistent with
the physical RFC opinions of Dr. Brown in all of the above areas. The ALJ
stated that plaintiff could generally perform light work and could specifically
stand/walk for 6 hours in an 8 hour workday, which is required for the full
range of light work. However, Dr. Brown limited plaintiff to standing/walking
for 30 minutes at a time and for 4 hours in an 8 hour workday. Thus, according
to Dr. Brown, plaintiff cannot perform the full range of light work because of
her 4 hour limitation in standing/ walking. Furthermore, although Dr. Brown
indicated that plaintiff would need to alternate sitting and standing, the ALJ,
without explanation, included no such limitation in his RFC findings. Precisely
how long a claimant can sit, or stand/walk, without a change in position is
relevant to assumptions about whether the claimant can perform light or
sedentary work. Vail v. Barnhart, 84 Fed. Appx. 1, 5 (10th
Cir. Nov. 26, 2003); Armer v. Apfel, 2000 WL 743680 at *2-3 (10th
Cir. June 9, 2000).
According to SSR 96-9p, a complete inability to stoop would
significantly erode the unskilled sedentary occupational base and a finding
that the claimant is disabled would usually apply. 1996 WL 374185 at *8. In
addition, a person limited in balancing, even when standing or walking on level
terrain, may result in a significant erosion of the unskilled sedentary
occupational base. 1996 WL 374185 at *7. Thus, the additional physical
limitations expressed by Dr. Brown could clearly impact what work, if any,
plaintiff will be able to perform.
According to SSR 96-8p, the "RFC assessment must
always consider and address medical source opinions. If the RFC assessment
conflicts with an opinion from a medical source, the adjudicator must explain
why the opinion was not adopted." SSR 96-8p, 1996 WL 374184 at *7. SSR
rulings are binding on an ALJ. 20 C.F.R. § 402.35(b)(1); Sullivan v. Zebley,
493 U.S. 521, 530 n.9, 110 S. Ct. 885, 891 n.9, 107 L. Ed.2d 967 (1990); Nielson
v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993). As noted
above, because the ALJ's RFC findings clearly conflict with numerous
opinions expressed by Dr. Brown, a treatment provider, the ALJ has failed to
comply with the requirement of SSR 96-8p that the ALJ explain why these
opinions from Dr. Brown were not adopted. Therefore, this case shall be
remanded in order for the ALJ to consider the physical RFC opinions of Dr.
Brown.
On remand, the ALJ shall consider and address all
the medical opinion evidence, including a number of other medical opinions
regarding plaintiff's limitations or ability to work not discussed in the ALJ's
decision. This includes a mental RFC assessment by Dr. Blum and Dr. Schulman
(R. at 361-365), and opinions expressed by Dr. Moore (R. at 479-482)
("There are no restrictions to activity at this time" (R. at 482),
Dr. Tawadros (R. at 305), Dr. Ator (R. at 206), and Dr. Yost (R. at 250). The
ALJ must evaluate every medical opinion in the record, and, if the ALJ's
RFC assessment conflicts with a medical opinion, the ALJ must explain
why the opinion was not adopted. Furthermore, in support of his RFC findings,
the ALJ "must include a narrative discussion describing how the evidence
supports each conclusion, citing specific medical facts .. . and nonmedical
evidence." The ALJ "must also explain how any material inconsistencies
or ambiguities in the evidence were considered and resolved." SSR 96-8p,
1996 WL 374184 at *7.
IV. Other issues raised by plaintiff
Plaintiff asserts error by the ALJ in failing to list
plaintiff's anxiety and panic disorder as severe impairments. In Brescia v.
Astrue, 287 Fed. Appx. 626, 628-629 (10th Cir. July 8, 2008),
the claimant argued that the ALJ improperly determined that several of her
impairments did not qualify as severe impairments. The court held that once an
ALJ has found that plaintiff has at least one severe impairment, a failure to
designate another as "severe" at step two does not constitute
reversible error because, under the regulations, the agency at later steps
considers the combined effect of all of the claimant's impairments without
regard to whether any such impairment, if considered separately, would be of
sufficient severity. In Hill v. Astrue, 289 Fed. Appx. 289, 291-292 (10th
Cir. Aug. 12, 2008), the court held that once the ALJ finds that the claimant
has any severe impairment, he has satisfied the analysis for purposes of step
two. The ALJ's failure to find that additional alleged impairments are also
severe is not in itself cause for reversal. However, the ALJ, in determining
plaintiff's RFC, must consider the effects of all of the claimant's medically
determinable impairments, both those he deems "severe" and those
"not severe."
The court finds no clear error by the ALJ in his step two
findings. However, on remand, the ALJ is reminded that, in determining
plaintiff's RFC, he must consider the effects of all of claimant's medically
determinable impairments, both those he deems "severe" and those
"not severe."
Plaintiff raises two other issues: 1) that the ALJ erred
in his analysis of plaintiff's credibility, and 2) the ALJ erred by
failing to elicit a reasonable explanation for an alleged conflict between
the DOT and the jobs identified by the vocational expert (VE). The court will
not reach these remaining issues because they may be affected by the ALJ's
resolution of the case on remand after considering all the medical evidence and
determining what weight should be accorded to the various medical opinions. See
Robinson v. Barnhart, 366 F.3d 1078, 1085 (10th Cir. 2004).
IT IS THEREFORE ORDERED that the judgment of the Commissioner
is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g)
for further proceedings consistent with this memorandum and order.
Let us take a look at another burden of proof case from 11TH
CIRCUIT COURT OF APPEALS.
CURCIO v. COMMISSIONER OF SOCIAL SECURITY
SAM CURCIO, Plaintiff-Appellant,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.
No. 09-15506. Non-Argument Calendar.
United States Court of Appeals, Eleventh Circuit.
July 15, 2010.
Before EDMONDSON, BIRCH and CARNES, Circuit Judges.
PER CURIAM:
Sam Curcio, through counsel, appeals the district court's
order affirming the Commissioner of Social Security's denial of his claims for
disability insurance benefits and supplemental security income. 42 U.S.C. §§
405(g), 1383(c)(3). Curcio argues that the administrative law judge erred in
relying on the testimony of the vocational expert. Specifically, Curcio argues
that the VE's testimony was unreliable because she failed to explain the method
she used or to provide the supporting data on which she relied in calculating,
out of the category of existing light jobs, the number of existing light jobs
that someone with Curcio's limitations could perform. Curcio also argues that
the VE improperly included in her estimation jobs that could be performed at a
sedentary level of exertion.
I.
We review de novo a district court's judgment
reviewing a decision of the Commissioner of Social Security. Ingram v.
Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007). When, as
here, the ALJ denies benefits and the Appeals Council denies review, we review
the decision of the ALJ as the Commissioner's final decision. Doughty v.
Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). "[W]e review de novo
the legal principles upon which the Commissioner's decision is based." Moore
v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). If the Commissioner's
decision is based upon proper legal standards, "[w]e will not disturb [it]
if, in light of the record as a whole, it appears to be supported by substantial
evidence." Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997).
"Substantial evidence is more than a scintilla, but less than a
preponderance. It is such relevant evidence as a reasonable person would accept
as adequate to support a conclusion." Bloodsworth v. Heckler, 703
F.2d 1233, 1239 (11th Cir. 1983). "Even if the evidence preponderates
against the Commissioner's findings, we must affirm if the decision reached is
supported by substantial evidence." Martin v. Sullivan, 894 F.2d
1520, 1529 (11th Cir. 1990).
II.
Generally, a claimant seeking benefits "bears the
burden of proving that he is disabled, and, consequently, he is
responsible for producing evidence in support of his claim." Ellison
v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). However, when a claimant
shows, as Curcio has, that his impairment prevents him from performing his past
relevant work, the burden shifts to the Commissioner to show that,
considering the claimant's residual functional capacity, age, education, and
work experience, "there is other work available in significant numbers in
the national economy that the claimant is able to perform." Jones v.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4). When, as here, "the claimant cannot perform
a full range of work at a given level of exertion or the claimant has
non-exertional impairments that significantly limit basic work skills[,] . . .
the Commissioner's preferred method of demonstrating that the claimant can
perform other jobs is through the testimony of a VE." Jones, 190
F.3d at 1229. For a VE's testimony to constitute substantial evidence,
"the ALJ must pose a hypothetical question which comprises all of the
claimant's impairments." Id.
The ALJ found that:
[Curcio] has the residual
functional capacity to perform light work except that he is limited to no more
than two hours of standing or walking in an eight hour day. There are no
limitations on sitting, but he does need to wear elastic compression stockings
while working. He can occasionally crouch, crawl or stoop but must avoid
vibration, climbing ropes, ladders or scaffolds. He must also limit activities
that require pushing or pulling with the lower extremities.
The ALJ asked the VE a question concerning a hypothetical
claimant with all of Curcio's impairments. In response, the VE testified that
someone with Curcio's impairments could not perform Curcio's past relevant
work, but that the hypothetical claimant could perform other jobs classified as
"light," including small products assembler, wrapping and packing
jobs such as poly-packer and heat-sealer, and machine tender. The VE also
testified as to the number of positions for each of those jobs existing in the
local, state, and national economies that could be performed by someone with
Curcio's impairments. The VE twice testified that no inconsistencies or
conflicts existed between her testimony and the Dictionary of Occupational
Titles ("DOT").
Curcio argues that the VE's testimony does not constitute
substantial evidence because it "lacked a proper foundation."
Specifically, Curcio argues that the ALJ erred in relying on the VE's testimony
because the VE failed to either: (1) explain the method she used in whittling
down the total number of the light jobs she listed to reach the number of the
listed light jobs that someone with Curcio's impairments could perform or (2)
provide supporting data, such as formal market surveys, to back up her
testimony.
Curcio's argument lacks merit. Curcio stipulated to the
VE's qualifications and did not object to her offering an opinion about the
number of jobs existing in the relevant economies. Nor did Curcio offer any
evidence controverting the VE's testimony. Instead, after the VE answered the
ALJ's hypothetical questions, Curcio's attorney asked her how she reduced the
total number of the light jobs she listed to arrive at the number of those jobs
a hypothetical claimant with Curcio's impairments could perform. In response,
the VE testified that she calculated the reduction according "to rough
percentages based on a labor market survey as to how many [people she has] seen
standing [and] walking." Curcio's attorney never asked to see the labor
market survey and asked no further questions about that aspect of the VE's
methodology.
The VE relied on a labor market survey and her experience.
Labor market surveys are a type of source on which VE's frequently rely. We
have explained that reliance upon such sources makes "a VE's testimony . .
. crucial to step 5 of the sequential evaluation process." Jones,
190 F.3d at 1230. Moreover, the Social Security regulations clearly allow that
the Commissioner may rely on a VE for her knowledge or expertise. See 20
C.F.R. §§ 404.1560(b)(2), 404.1566(e), 416.960(b)(2), 416.966(e); see also
Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) ("A VE's
recognized expertise provides the necessary foundation for his or her
testimony. Thus, no additional foundation is required."). In addition to
being based on a labor market survey and her experience and expertise, the VE's
testimony was also consistent with the DOT. The VE's testimony is therefore
substantial evidence, as it is relevant evidence that a reasonable person would
accept as adequate to support the conclusion that there is work available in
significant numbers in the national economy that Curcio is able to perform. Bloodsworth,
703 F.2d at 1239.
III.
Curcio also argues that the ALJ erred in relying on the
VE's testimony because, he argues, the VE improperly included an unknown number
of jobs that could be performed at the sedentary level in her total of existing
jobs that someone with Curcio's limitations could perform. According to Curcio,
the VE's inclusion of jobs that could be performed at the sedentary level in
her estimate of the total number of existing jobs that Curcio could perform was
improper because "a person of [Curcio's] age, education, and work
experience would be deemed disabled under the Medical Vocational Guidelines if
limited to sedentary work." See 20 C.F.R., Pt. 404, Subpt. P, App. 2, Rules
201.00(g) & 201.14.
That argument suffers from a fundamental flaw. The ALJ
found that Curcio could perform a limited range of light work. The VE
repeatedly testified that the jobs she identified were light jobs. The VE's
classification of the jobs agrees with the classification of those jobs in the
DOT, and "[t]he DOT classifies work as `sedentary,' `light,' `medium,'
`heavy,' or `very heavy,' in accordance with the use of those terms by the
[Commissioner]." Gibson v. Heckler, 762 F.2d 1516, 1519 (11th Cir.
1985); see Dept. of Labor, Dictionary of Occupational Titles, §§
556.685-038 (machine tender), 739.687-030 (small products assembler),
920.686-038 (poly-packer and heat-sealer) (rev. 4th ed. 1991). Because the jobs
identified by the VE are classified as light, the VE did not improperly include
sedentary jobs in her total of existing jobs that someone with Curcio's
limitations could perform.
IV.
The ALJ did not err in relying on the VE's testimony. That
testimony constitutes substantial evidence supporting the ALJ's finding that
Curcio can perform occupations with jobs existing in significant numbers in the
national economy and that he therefore is not disabled. See 20 C.F.R. §§
404.1520(g), 416.920(g). Accordingly, we affirm.
AFFIRMED.
In the following case, the ALJ rejected the claimant’s
“other source” evidence.
COLE v. ASTRUE
WILLIAM L. COLE,
Plaintiff-Appellant,
v.
MICHAEL J. ASTRUE, Commissioner of
Social Security, Defendant-Appellee.
No. 09-36082.
United States
Court of Appeals, Ninth Circuit.
Submitted
September 2, 2010.[ 1 ] — Seattle, Washington.
Filed September
7, 2010.
Before: HAWKINS, McKEOWN and BEA, Circuit Judges.
William Cole appeals
the district court's order affirming the Commissioner of Social Security's
denial of his 2006 application for social security disability benefits. Cole
claims that he has been disabled as of January 1, 2005, due to diabetes, high
blood pressure, and a back condition. The Commissioner rejected Cole's
application, concluding Cole retained a residual functional capacity (RFC) that
allowed him to perform some jobs available in significant numbers in the
national economy. We have jurisdiction under 28 U.S.C. § 1291, and review the
district court's order de novo "to ensure that the [Commissioner's]
decision was supported by substantial evidence and a correct application of the
law." Valentine v. Comm'r, 574 F.3d 685, 690 (9th Cir. 2009) (internal
quotation marks omitted). We affirm. As the parties are familiar with the
facts, we will not repeat them here.
Cole offers several objections related to the treatment of
the medical and medical-related evidence. Although Cole urges the panel to
adopt a different standard, the established standard for evaluating an ALJ's
treatment of an "other source" opinion, such as those from the
physician's assistant and the physical therapist, is whether the ALJ provided
"germane" reasons for discounting that opinion. Valentine, 574 F.3d
at 694; Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993); see also Jamerson
v. Chater, 112 F.3d 1064, 1067 (9th Cir. 1997).
The ALJ offered germane reasons—including the limited
interaction the sources had with Cole and the apparent temporal nature of the
physical therapist's evaluation—to disagree regarding the severity of Cole's
limitations. Although the ALJ did not address the fact that a doctor co-signed
two of the three evaluations from the physician's assistant, Cole does not meet
his burden of demonstrating that the error was not harmless. See Shinseki v.
Sanders, 129 S.Ct. 1696, 1706 (2009). Any error based on that oversight was
indeed harmless, as the ALJ identified substantial evidence to support his
findings regarding Cole's RFC. See Carmickle v. Comm'r, 533 F.3d 1155, 1162
(9th Cir. 2008).
Cole objected that the ALJ did not consider certain pieces
of medical evidence. The ALJ is charged with the duty to weigh all of the
evidence in the record to reach an RFC assessment, Thomas v. Barnhart, 278 F.3d
947, 954 (9th Cir. 2002), but is not required to discuss each piece of
evidence. The ALJ noted that Cole's medical records confirmed Cole's painful
back condition, but did not provide evidence demonstrating the severely
incapacitating level Cole described. The ALJ identified substantial evidence to
support his conclusion that Cole retained the RFC to perform a limited range of
"light" work. Further, the additional evidence (x-ray and treatment
note) that Cole argues the ALJ should have discussed does not appear to add
materially to the evidence the ALJ mentioned. The ALJ did not err by improperly
considering the medical and medical-related evidence.
Cole also protests that the ALJ improperly handled Cole's
subjective pain testimony and the lay evidence provided by two of his friends.
In discounting Cole's symptom testimony, the ALJ provided several specific,
clear and convincing reasons, as required. See Smolen v. Chater, 80 F.3d 1273,
1281 (9th Cir. 1996). The ALJ highlighted that (1) Cole undertook activities
that did not comport with his supposed pain level; (2) Cole relied on only
medical marijuana to treat his symptoms; (3) the medical evidence did not
support Cole's reported level of symptoms; and (4) Cole revealed to the
psychological evaluator that he might have other motivations for seeking
disability payments.
The ALJ was required to provide "germane reasons"
for not crediting the friends' lay evidence. See Lewis v. Apfel, 236 F.3d 503,
511 (9th Cir. 2001). The ALJ specifically addressed the evidence from each
friend, giving examples to support his findings that the evidence lacked the
specificity or accuracy to be afforded great weight. The ALJ is charged with
assessing credibility, Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995),
and did not err by limiting the weight given to the lay testimony.
Finally, Cole argues that the ALJ erred in finding that
jobs Cole could perform existed in the national economy in significant numbers.
The ALJ was not required to consider the vocational expert's testimony based on
a hypothetical Cole created. See Osenbrock v. Apfel, 240 F.3d 1157, 1164-65
(9th Cir. 2001). Cole highlights, correctly, that there was a discrepancy
between the vocational expert's testimony and the Dictionary of Occupational
Titles, and that the ALJ did not take the required steps of identifying and
resolving this inconsistency. See Masachi v. Astrue, 486 F.3d 1149, 1153-54
(9th Cir. 2007). The Commissioner concedes the error, but Cole does not meet
his burden of demonstrating the error was not harmless. See Shinseki, 129 S.Ct.
at 1706.
There was sufficient remaining evidence in the record to
support the conclusion that significant numbers of jobs existed that Cole could
perform. See Masachi, 486 F.3d at 1154 n.19. Unchallenged evidence in the
record showed Cole could perform work as a table worker. Additionally, the
expert testified that significant numbers of "sit/stand option"
cashier and small products assembler jobs existed that Cole could perform. The
expert's testimony showed there were over 25,000 jobs in Washington state in
these three categories combined. Any error was therefore rendered harmless. See
e.g., Barker v. Sec'y of Health & Human Servs., 882 F.2d 1474, 1478-79 (9th
Cir. 1989) (affirming finding of availability of significant number of jobs
petitioner could perform where 1266 jobs were identified in the local area).
AFFIRMED.
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