Opinion
No. CV-11-3082-CI
04-24-2013
LETICIA BADILLO, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
ORDER DENYING PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT are cross-Motions for Summary Judgment. (ECF No. 17, 19.) Attorney D. James Tree represents Leticia Badillo (Plaintiff); Special Assistant United States Attorney Robert L. Van Saghi represents the Commissioner of Social Security (Defendant). The parties have consented to proceed before a magistrate judge. (ECF No. 8.) After reviewing the administrative record and briefs filed by the parties, the court DENIES Plaintiff's Motion for Summary Judgment, and directs entry of judgment for Defendant.
JURISDICTION
Plaintiff protectively filed for Title II disability insurance benefits (DIB) on September 26, 2006. Tr. 163. She alleged disability due to problems with heart illness, fatigue, medication side effects, thyroid disorder and numbness in her left arm with an amended onset date of February 1, 2006. Tr. 63, 168, 189. Her claim was denied initially and on reconsideration. Plaintiff requested a hearing before an administrative law judge (ALJ), which was held on August 24, 2010, before ALJ James W. Sherry. Tr. 52-91. Plaintiff, who was represented by an attorney, testified with the assistance of an interpreter. Vocational expert Scott A. Whitmer (VE) also testified. Tr. 30. The ALJ denied benefits on December 30, 2010, and the Appeals Council denied review. (Tr. 30-38, 1-9.) The instant matter is before this court pursuant to 42 U.S.C. § 405(g).
STANDARD OF REVIEW
In Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001), the court set out the standard of review:
The decision of the Commissioner may be reversed only if it is not supported by substantial evidence or if it is based on legal error. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put another way, substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational interpretation, the court may not substitute its judgment for that of the Commissioner. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin. 169 F.3d 595, 599 (9th Cir. 1999).
The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The ALJ's determinations of law are reviewed de novo, although deference is owed to a reasonable construction of the applicable statutes. McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000).
It is the role of the trier of fact, not this court, to resolve conflicts in evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational interpretation, the court may not substitute its judgment for that of the Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be set aside if the proper legal standards were not applied in weighing the evidence and making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). If there is substantial evidence to support the administrative findings, or if there is conflicting evidence that will support a finding of either disability or non-disability, the finding of the Commissioner is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987).
SEQUENTIAL EVALUATION PROCESS
The Commissioner has established a five-step sequential evaluation process for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one through four, the burden of proof rests upon the claimant to establish a prima facie case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971). This burden is met once a claimant establishes that a medically determinable physical or mental impairment prevents him from engaging in his previous occupation. 20 C.F.R. §§ 404.1520(a), 416.920(a). "This requires the presentation of 'complete and detailed objective medical reports of his condition from licensed medical processionals.'" Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999)(citation omitted).
If a claimant cannot do his past relevant work, the ALJ proceeds to step five, and the burden shifts to the Commissioner to show that (1) the claimant can make an adjustment to other work; and (2) specific jobs exist in the national economy which claimant can perform. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Kail v. Heckler, 722 F.2d 1496, 1497-98 (9th Cir. 1984).
STATEMENT OF THE CASE
The facts of the case are set forth in detail in the transcript of proceedings and are briefly summarized here. Plaintiff, who testified through an interpreter, was 36 years old at the time of the hearing, married with three dependent children, and lived in a house with her spouse and children. Tr. 61-62. Plaintiff testified she spoke very little English; she had a ninth grade education in Mexico and could read and write in Spanish. Plaintiff reported past work experience as a fruit packer and sorter between 1997 and 2005. Tr. 190. She testified she could no longer work due to chest pain, fatigue, and left arm numbness. Tr. 65. She also stated she had emotional problems due to her fear of having a heart attack. Tr. 68.
ADMINISTRATIVE DECISION
The ALJ first found Plaintiff met the DIB insured status requirements through December 31, 2010. Tr. 32. At step one of the sequential evaluation, he found Plaintiff had not engaged in substantial gainful activity since July 1, 2006, the amended onset date. Id. At step two, he found Plaintiff had severe impairments of "chest pain syndrome; history of pericarditis; and gastritis/acid dyspepsia." Id. Considering the four broad functional areas for evaluating mental disorders, the ALJ found mental impairments of depression and/or anxiety, alone or in combination, did not cause more than minimal limitations in her ability to work. Tr. 33. At step three, the ALJ concluded Plaintiff's impairments or combination of impairments did not meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Listings). Tr. 34.
At step four, the ALJ considered Plaintiff's symptoms and determined Plaintiff had the physical residual functional capacity (RFC) to perform the full range of light work and retained the mental capacity to perform "simple, routine and repetitive tasks in a low stress job with occasional decision making and occasional changes in a work setting." Tr. 34.
The ALJ made detailed findings regarding Plaintiff's alleged limitations and concluded her subjective complaints were not fully persuasive. Tr. 35-36. Based on the RFC assessed and the VE's testimony, the ALJ concluded Plaintiff could still perform her past relevant work as a fruit packer as actually and generally performed. Tr. 36-37. Proceeding to step five, the ALJ specifically noted Plaintiff's inability to communicate effectively in English and considered her as "an individual who is illiterate in English." Tr. 37. Based on the RFC determination and VE testimony that the number of other jobs she could perform would be reduced by 50 to 90 percent due to the language barrier, he found there were other jobs in significant numbers Plaintiff could perform. Those sedentary to light level jobs were identified as housekeeper, cashier, parking lot attendant, and dry cleaner, spotter. Tr. 37. The ALJ concluded Plaintiff had not been disabled since the amended onset date through the date of her decision and, thus, was ineligible for DIB benefits. Tr. 38.
The Medical-Vocational Guidelines (Grids) explain that illiteracy or the inability to communicate in English has the least significance in "unskilled work," where the bulk of the work relates to "things rather than data or people." 20 C.F.R. Subpt. P., App. 2, § 201.00(g).
ISSUES
The question is whether the ALJ's decision is supported by substantial evidence and free of legal error. Plaintiff identifies the following errors: 1) improper rejection of the Plaintiff's treating medical providers; (2) exclusion of depression as a "severe impairment" at step two; (3) improper rejection of Plaintiff's subjective complaints; (4) failure to fully develop the record; and (5) reliance on vocational expert testimony that had no evidentiary value. ECF No. 18 at 7-19. Plaintiff also asks the court to order compliance with a Freedom of Information Act (FOIA) request. ECF No. 18 at 19. Defendant argues the ALJ's findings are supported by substantial evidence in the entire record and his decision is free of legal error. ECF No. 20.
DISCUSSION
A. Credibility
When the ALJ finds a claimant's statements as to the severity of impairments, pain, and limitations are not credible, he must make a credibility determination with findings sufficiently specific to permit the court to conclude the ALJ did not arbitrarily discredit claimant's allegations. Thomas v. Barnhart, 278 F.3d 947, 958-959 (9th Cir. 2002); Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991) (en banc). If there is no affirmative evidence that the claimant is malingering, the ALJ must provide "clear and convincing" reasons for rejecting the claimant's allegations regarding the severity of symptoms. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). The ALJ engages in a two-step analysis in deciding whether to admit a claimant's subjective symptom testimony. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996).
First, the ALJ must find the claimant has produced objective medical evidence of an underlying "impairment," and that the impairment or combination of impairments "could reasonably be expected to produce pain or other symptoms." Cotton v. Bowen, 799 F.2d 1403, 1405 (9th Cir. 1986). Thus, medical evidence is a relevant factor to consider in assessing credibility. Social Security Ruling (SSR) 96-7p. Once the Cotton test is met, the ALJ must evaluate the credibility of the claimant.
As ruled by the Ninth Circuit,
An ALJ cannot be required to believe every allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423 (d)(5)(A). . . . This holds true even where the claimant introduces medical evidence showing that he has an ailment reasonably expected to produce some pain; many medical conditions produce pain not severe enough to preclude gainful employment.Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). In addition to ordinary techniques of credibility evaluation, the ALJ may consider the following factors when weighing the claimant's credibility: the claimant's reputation for truthfulness; inconsistencies either in her allegations of limitations or between her statements and conduct; daily activities and work record; and testimony from physicians and third parties concerning the nature, severity, and effect of the alleged symptoms. Light v. Social Sec. Admin. , 119 F.3d 789, 792 (9th Cir. 1997); Fair, 885 F.2d 597 n.5. The ALJ may also consider an unexplained failure to follow treatment recommendations and testimony by the claimant "that appears less than candid." Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). The credibility assessment is the province of the ALJ and "the court may not engage in second-guessing." Thomas, 278 F.3d at 959; Fair, 885 F.2d at 604.
Here, the ALJ summarized Plaintiff's testimony and relevant medical evidence. Tr. 35-36. He found her testimony regarding mental impairments and physical restrictions were not consistent with the record or entirely credible. For example, he noted that although she testified a worsening physical condition, the medical evidence reflected improvement over the last two years. Tr. 35. Specifically, he noted a July 2009 examination at which her treating physician noted no exertional chest pain, pressure or abnormal shortness of breath. The physician also reported that her pericardial effusion had resolved. Tr. 485.
After discussing medical evidence that is inconsistent with the level of severity claimed by Plaintiff, the ALJ gave other legally sufficient reasons for partially discounting her subjective symptoms. For example, he found the examining psychologist noted objective evidence of symptom embellishment; her physician reported her efforts to provide a written opinion that she could not work, which he refused to provide; no treating physician opined her condition precluded work; the record included significant gaps in treatment; and she did not present to her treating physicians as "totally disabled." Tr. 36. While Plaintiff is correct that her request to complete disability paperwork is frequently made, the treating physician's refusal to do so reflects adversely on the severity of Plaintiff's medical condition. In sum, the ALJ provided sufficient specific, "clear and convincing" reasons for finding Plaintiff's subjective complaints partially credible. Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005); Osenbrock v. Apfel, 240 F.3d 1157, 1165, 1166 (9th Cir. 2001).
Plaintiff's reliance on Regenniter v. Commissioner of Social Sec. Admin., 166 F.3d 1294 (9th Cir. 1999), in her credibility argument is misplaced. In Regenniter, the claimant had an 8 x 12 x 20 beam fall on his head while working at a construction site and then suffered an accidental gunshot to his leg two years later. Id. at 1296. His medically determinable impairments of depression, post-traumatic stress disorder, headaches and panic attacks were established by medical evidence consistent with his complaints. Id. at 1206. The ALJ discounted Regenniter's complaints for not seeking medical treatment even though it was established that he had received regular treatment until his insurance ran out, he had no income for many years, and had incurred thousands of dollars of debt. Id. at 1296-97. The court rejected the ALJ's reasoning because Plaintiff gave good reasons for not seeking additional treatment, i.e. , he could not afford further treatment. Id. Here, Plaintiff has failed to assert any reason for not pursuing counseling recommended by her provider. Further, the record does not indicate that Plaintiff's depression had a significant impact on her ability to maintain her household, engage in daily activities or attend to her personal care. She was also capable of seeking medication for depressive symptoms throughout the record. The ALJ's finding that Plaintiff's failure to seek additional mental health care erodes her allegations of severe depression is a clear and convincing reason to discount allegations of disabling depression.
Plaintiff asserts the ALJ's reliance on the opinions of examining psychologist Jay Toews, Ed.D., that Plaintiff may be exaggerating or embellishing symptoms is error. ECF No. 18 at 15. In support of her argument she references independent research on malingering testing that she interprets as contradicting Dr. Toews' interpretation of psychological testing administered to assess credibility of self-reported symptoms. ECF No. 18 at 15; Tr. 20-22. However, the inconclusive research provided does not impugn Dr. Toews' opinions that Plaintiff's scores reflect "a tendency to embellish or exaggerate" symptoms. Tr. 492. Dr. Toews did not find affirmative evidence of malingering, as argued by Plaintiff. Tr. 491, 492.
As discussed above, without affirmative evidence of malingering, the ALJ is required to give clear and convincing reasons for discounting Plaintiff's allegations. His reasoning meets this standard. The fact that some of the ALJ's reasons are not permissible or supported by the record is not fatal where, as here, others are legally sufficient. Batson v. Comm. of Social Sec. Admin. , 359 F.3d 1190, 1197 (9th Cir. 2004)(erroneous reason to reject credibility did not affect ALJ's decision where remaining reasons and ultimate credibility determination were adequately supported by substantial evidence).
B. Medical Opinions
Plaintiff claims the ALJ erred in evaluating medical evidence from her treating cardiologist, Anatole S. Kim, M.D.; emergency room physician Douglas Coon, M.D.; and examining psychologist, Dr. Toews. ECF No. 18 at 11.
1. Dr. Toews
As noted by Plaintiff, Dr. Toews' Mental RFC Assessment form notes five moderate limitations in Plaintiff's mental functioning. Tr. 498-99. Her argument that "none of these limitations were included in the ALJ's RFC finding" is without merit. The record shows that after summarizing Plaintiff's clinical interview and objective test results, Dr. Toews concluded Plaintiff had excellent memory and retention ability, and she could perform "a variety of routine and repetitive types of work activity without difficulty." Tr. 489-92. The ALJ specifically referenced Dr. Toews' narrative opinion that Plaintiff exhibited some difficulty in functioning due to mental health symptoms and properly relied on his narrative opinion that she could perform work. Tr. 35. Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996). Further, considering the ALJ's specific credibility findings, the final RFC determination sufficiently addresses moderate functional limitations identified, 20 C.F.R. §§ 404.1527(e), 416.927(e) (no special significance is given to a medical source opinion regarding final RFC determination); Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989) (reviewing court can draw legitimate inferences relevant to the medical source's opinion from the adjudicator's decision). For example, to accommodate limitations in concentration, social interaction, and adaptation identified by Dr. Toews and supported by the evidence, the ALJ reasonably restricted Plaintiff to low stress unskilled work, occasional decision making, and occasional changes in the work setting. Tr. 34-36. Plaintiff's contention that Dr. Toews' opinions were not incorporated in the RFC determination fails.
2. Dr. Coon
Plaintiff contends the ALJ disregarded Dr. Coon's opinion, asserting that he "diagnosed her with anxiety." ECF No. 18 at 10. However, the record shows Dr. Coon saw Plaintiff once during an emergency room visit when Plaintiff was experiencing chest pain. He did not make a formal diagnosis of "anxiety." Tr. 320-321. Rather, he reported a clinical impression of "acute anxiety and atypical chest pain" based on his observations at admission. Tr. 320. Chart notes indicate Plaintiff exhibited no distress when the chest pain was relieved and Plaintiff was "smiling and walking without difficulty" upon discharge. Tr. 324. Emergency room records document that Ativan was administered at the time to relieve symptoms, but it was not prescribed for ongoing treatment. No prescriptions were ordered. Tr. 320. Dr. Coon's one time "discharge diagnosis" of acute anxiety accompanying atypical chest pain during emergency room treatment does not rise to the level of medical evidence to establish a medically determinable mental impairment. See 20 C.F.R. § 404.1508 (mental impairment must be shown by acceptable diagnostic techniques and last or be expected to last 12 months). The ALJ was not required to reject Dr. Coon's reference to anxiety symptoms during urgent care, as it is not significantly probative to support a finding that anxiety is a medically determinable mental impairment. Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394-95 (1984).
The record shows Plaintiff's prescriptions at the time of the hearing were for thyroid, cholesterol, and sleep problems. Tr. 487.
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3. Dr. Kim
Plaintiff's argument that the ALJ erred by disregarding Dr. Kim's observation she "appeared clinically depressed" is also without merit. ECF No. 18 at 10; Tr. 448. Dr. Kim is a heart specialist to whom Plaintiff was referred by Plaintiff's treating physician, Dr. Forster, in 2006. See Tr. 257. Dr. Kim diagnosed and treated Plaintiff for pericardial effusion until it was resolved in February 2008. Tr. 446-48. In April 2008, during a follow-up visit, Plaintiff complained of headaches and insomnia due to chest pain. She also expressed anxiety over her sister's recent injury that resulted initially in a coma and then confined the sister to a wheelchair. Tr. 447. During Dr. Kim's examination, Plaintiff reported she did not go back to work because her family decided she was too ill; she also reported she was babysitting a friend's two and a half year old, three to four times a week, and another child for a couple hours after school. Tr. 448.
In his clinic note, Dr. Kim reported he could find no cardiac etiology for Plaintiff's chest pain. Tr. 448-49. This opinion was credited by the ALJ and supports the finding that Plaintiff's pericarditis was resolved. Tr. 32. Dr. Kim also noted he did not have a longitudinal relationship with Plaintiff, but his impression was that she was "clinically depressed." Tr. 448. He deferred further work-up for non-cardiac etiology to Dr. Forster. Id.
Dr. Kim's conclusory impression regarding Plaintiff's mental health does not rise to the level of a medically acceptable opinion. SSR 96-2p (only well-supported opinions based on sound medical techniques can establish the existence of an impairment); see Young v. Heckler, 803 F.2d 963, 968 (9th Cir. 1986) (brief, conclusory, unsupported treating physician opinion disregarded). Dr. Kim is not a mental health specialist, and the medical record confirms he did not have a long treating relationship with Plaintiff. His interpretation of Plaintiff's mental state based on her presentation during one visit is not probative to the disability determination. Reversal is not warranted due to the ALJ's disregard of Dr. Kim's conclusory impression regarding Plaintiff's mental health. Vincent, 739 F.2d at 1395 (only significant probative evidence must be discussed and rejected by ALJ).
C. Step Two: Severe Mental Impairment
Plaintiff argues the ALJ erred at step two when he concluded Plaintiff's depression is "non severe." The fact that a medically determinable condition exists does not automatically mean the symptoms are "severe," or "disabling," as defined by the Social Security regulations. See, e.g., Edlund, 253 F.3d at 1159-60; Fair v. Bowen, 885 F.2d 597, 603 (9th cir. 1989); Key v. Heckler, 754 F.2d 1545, 1549-50 (9th Cir. 1985). To establish severity, the evidence must show the diagnosed condition significantly limits a claimant's physical or mental ability to do basic work activities. 20 C.F.R. § 416.920(c).
Here, the ALJ identified depression and/or anxiety as mental disorders and properly evaluated the evidence as required by 20 C.F.R. § 404.1520a. Specifically, he considered the major function areas to determine severity at step two (activities of daily living, social functioning, concentration, persistence or pace; and episodes of decompensation). Tr. 33. In support of his step two findings, the ALJ found Plaintiff did not indicate depression as an impairment in her application for benefits or report symptoms of anxiety or depression at her consultative psychological evaluation in October 2010. The ALJ also found no evidence of significant limitations caused by mental problems in Plaintiff's self-reported daily activities, i.e. , cleaning, shopping, cooking managing her household or caring for herself. For example, the record includes self-reported ability to get along well with others and handle changes without a problem. Id., Tr. 176, 180. Regarding limitations in concentration, persistence or pace, the ALJ's step two finding that medical evidence does not establish a significant mental limitation is supported by the record. As discussed above, Dr. Toews did not find evidence to establish a diagnosis of depression; and one-time observations by Dr. Coon (emergency room physician) and Dr. Kim (treating cardiologist) are insufficient to establish severity. 20 C.F.R. § 404.1508 (claimant must provide medical evidence consisting of signs, symptoms, and laboratory findings required to establish step two severity).
Independent review reveals other substantial evidence to support the ALJ's finding of non-severity. See Warre v. Commissioner of Social Sec. Admin., 439 F.3d 1001, n.3 (9th 2006) (additional support for ALJ's position may be noted by reviewing court). For example, no evidence of treatment is presented, and as found by the ALJ, Plaintiff did not report symptoms or limitations caused by a mental condition to the examining psychologist. At the hearing, through an interpreter and in response to her representative's questions, Plaintiff reported she cries sometimes when thinking about her physical impairment, and sometimes lacks energy. Tr. 68. She also testified left arm pain restricted some activities. Tr. 65. These self-reported subjective symptoms, without more, are insufficient to establish step two severity. 20 C.F.R. § 404.1508 (statement of symptoms does not establish an impairment). The ALJ did not err in finding depression non-severe.
Even if depression were severe as defined by the Regulations, failure to identify it as such at step two is harmless here because Plaintiff has failed to show she was prejudiced by the alleged error. Shineski v. Sanders, 556 U.S. 396, 409-10 (2009)(burden of showing harm from error in administrative proceedings falls on plaintiff); see also Stout v. Commissioner, Social Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006)(error harmless where no prejudice shown); Johnson v. Shalala, 60 F.3d 1428, 1436 n.9 (9th Cir. 1995) (error is harmless if correction would not alter result).
It is the sole responsibility of the ALJ to determine the most a claimant can still do despite her physical and/or mental limitations. 20 C.F.R. § 416.945(a)(1); 20 C.F.R. § 416.946(c); see also SSR 96-5p. As reflected by the record and the final RFC determination, the ALJ considered self-reported non-exertional symptoms attributed to depression in steps two through five and addressed mental limitations identified by Dr. Toews in his narrative report and summary mental RFC assessment. Tr. 33, 35, 36. At step four, although he discounted Plaintiff's subjective complaints, he explicitly gave her the benefit of the doubt regarding mental limitations alleged and restricted her to simple tasks, a low stress job with occasional decision-making, and occasional changes in the work setting to address psychological symptoms reported by Plaintiff. Tr. 34, 36. Plaintiff offers no medical evidence that these non-exertional restrictions are inadequate to accommodate mental impairments supported by the record. Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). The ALJ's findings reflect a rational interpretation of the entire record, including Dr. Toews' narrative opinion that Plaintiff is capable of routine and repetitive work. Tr. 492. Without a showing of prejudice, the claimed alleged step two error is harmless. Shineski, 556 U.S. at 409-10.
D. Duty to Develop the Record
Plaintiff next argues this case should be remanded for a second consultative examination with a Spanish speaking psychologist. ECF No. 18 at 17-18. This argument is unpersuasive. As acknowledged by Plaintiff's representative at the hearing, although a Spanish speaking examiner may be preferable, the decision as to whether one is needed is the responsibility of the agency. Tr. 89-90; 20 C.F.R. § 404.1519. Further, the regulations specifically identify "language barrier" as a factor considered by the agency in choosing an examining medical source. See 20 C.F.R. § 404.1519j. There is nothing in the record to indicate this factor was disregarded by agency administrators who arranged the requested psychological evaluation.
Although Plaintiff argues that a Spanish speaking examiner is required in this case, she cites to no authority for this proposition. She does not reference evidence in the record or present new evidence that supports her assertion more testing is required. Speculation that a Spanish speaking psychologist would have different or more favorable opinions regarding a claimant's mental impairments is not a sufficient cause for remand.
The record shows Dr. Toews conducted a detailed interview with Plaintiff and his recital of Plaintiff's self-reported symptoms, family history, past work, activities of daily living, and psycho-social history is consistent with the entire record. There is nothing to indicate information given or received was lost in translation. Significantly, Dr. Toews commented on Plaintiff's low visual memory scores as being "due to cultural factors," indicating awareness and consideration of cultural barriers. It is also noted on independent review that Plaintiff reported attending English as a Second Language (ESL) classes in the United States and listed reading books in English as one of her hobbies. Tr. 490, 208. Finally, Plaintiff's scores on objective testing were excellent, results that support Dr. Toews' finding Plaintiff had no difficulty understanding test instructions or items. Tr. 490. Regarding Plaintiff's symptoms, consistent with her hearing testimony, Plaintiff told Dr. Toews she felt "tired and weak," and had difficulty falling asleep. Tr. 490. Objective test results revealed no memory problems (an indicator that she could follow instructions), and Dr. Toews observed normal mood and affect, noting she was "quite pleasant and cooperative." Id. Plaintiff provides no evidence of recommended treatment for clinical depression that contradicts Dr. Toews observations and conclusions. Viewed in its entirety, the record does not support Plaintiff's argument that her consultative examination with Dr. Toews was inadequate to develop the record fully.
E. Reliance on VE Testimony
Plaintiff argues the ALJ's failure to include left arm pain and limitations assessed by Dr. Toews in hypotheticals posed at steps four and five rendered VE testimony without evidentiary value. ECF No. 18 at 19-20. As discussed above, the weight given Dr. Toews' opinions and limitations included in the ALJ's final RFC determination is supported by substantial evidence and without legal error. Regarding left arm pain, the hearing transcript indicates Plaintiff's representative included "a left arm impairment" in his hypothetical to the VE and speculated that it could limit an individual to "less than occasional" use. Tr. 84. However, an ALJ does not have to accept as true the limitations propounded by plaintiff's counsel but unsupported by the record. Osenbrock v. Apfel, 240 F.3d 1157, 1164 (9th Cir. 2001). As found by the ALJ, there is no medical evidence to establish a left arm impairment or an etiology to left arm restrictions alleged by Plaintiff. Tr. 35. Plaintiff's statements and her representative's speculation concerning left arm impairment are insufficient to establish a disabling limitation. 20 C.F.R. § 404.1528; Ukolov. V. Barnhart, 420 F. 3d 1002, 1005 (9th Cir. 2005) (claimant's perception of his problems do not support a finding of impairment).
The ALJ also discussed limitations in Plaintiff's English illiteracy and their effect on her ability to perform past work as an agricultural packer and sorter. He properly factored Plaintiff's language barrier into his hypothetical questions to the VE, who identified specific jobs that could be performed with a limited ability to speak English. See Tr. 37, 76, 77, 78. Consistent with the VE's testimony, the ALJ found not only could Plaintiff perform past work, but also she was capable of performing other jobs whose occupational base was reduced by her inability to communicate effectively in English. The ALJ did not err in relying on VE testimony.
The ALJ's interpretation of the medical evidence in the entire record and application of relevant legal standards at steps four and five are reasonable and supported by substantial evidence.
F. FOIA Request
Plaintiff appears to ask this court to order production of documents she requested under the FOIA. To seek judicial relief under the FOIA, Plaintiff must comply with the provisions of 5 U.S.C. § 552 (a)(4)(B). Plaintiff presents neither facts nor legal authority to support a FOIA review in these proceedings.
CONCLUSION
The ALJ's decision is based on substantial evidence and free of legal error. The record is fully developed and supports in its entirety the ALJ's denial of benefits. Accordingly,
IT IS ORDERED:
1. Plaintiff's Motion for Summary Judgment (ECF No. 17) pursuant to 42 U.S.C. § 405(g) is DENIED. To the extent her Motion includes a claim for injunctive relief under the FOIA, it is DENIED.
2. Defendant's Motion for Summary Judgment (ECF No. 19) is GRANTED.
The District Court Executive is directed to file this Order and provide a copy to counsel for Plaintiff and Defendant. The file shall be closed and judgment entered for Defendant.
CYNTHIA IMBROGNO
UNITED STATES MAGISTRATE JUDGE