Opinion
2:21-cv-00993-HL
06-15-2022
SHAUN H.,[1] Plaintiff, v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.
FINDINGS AND RECOMMENDATION
ANDREW HALLMAN, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Shaun H. brings this action under the Social Security Act (the “Act”), 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security (the “Commissioner”). The Commissioner denied Plaintiff's application for Disability Insurance Benefits (“DIB”) under Title II of the Act. 42 U.S.C. § 401 et seq. For the following reasons, this case should be affirmed.
STANDARD OF REVIEW
42 U.S.C. § 405(g) provides for judicial review of the Social Security Administration's disability determinations: “The court shall have power to enter . . . a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” The court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation omitted). The court must weigh “both the evidence that supports and detracts from the [Commissioner's] conclusion.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). “Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's.” Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted); see also Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005) (holding that the court “must uphold the ALJ's decision where the evidence is susceptible to more than one rational interpretation”). “[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quotation omitted).
BACKGROUND
I. Plaintiff's Application
Plaintiff alleges disability based on back problems, multiple surgeries that cause pain, and neuropathy in his feet and legs. Tr. 250. At the time of his alleged onset date, he was 49 years old. Tr. 27, 246. He has a high school education and past relevant work experience as a construction superintendent. Tr. 26-27.
Citations to “Tr.” are to the Administrative Record. ECF 10-1.
Plaintiff protectively applied for DIB on January 25, 2019, alleging an onset date of October 15, 2011. Tr. 228-32. His application was denied initially on April 22, 2019, and on reconsideration on December 23, 2019. Tr. 88, 139-41. Plaintiff subsequently requested a hearing, which was held telephonically on November 10, 2020, before Administrative Law Judge (“ALJ”) Mark Kim. Tr. 36-76, 146-50. Plaintiff appeared and testified at the hearing, represented by counsel; a vocational expert (“VE”), Patricia Ayerza, also testified. Tr. 36-76. On December 10, 2020, the ALJ issued a decision denying Plaintiff's claim. Tr. 15-28. Plaintiff requested Appeals Council review, which was denied on May 4, 2021. Tr. 1-6. Plaintiff then sought review before this Court.
II. Sequential Disability Process
The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected . . . to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).
The Commissioner has established a five-step process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920. At step one, the Commissioner determines whether a claimant is engaged in “substantial gainful activity”; if so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 404.1520(b), 416.920(b).
At step two, the Commissioner determines whether the claimant has a “medically severe impairment or combination of impairments.” Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). A severe impairment is one “which significantly limits [the claimant's] physical or mental ability to do basic work activities[.]” 20 C.F.R. §§ 404.1520(c) & 416.920(c). If not, the claimant is not disabled. Yuckert, 482 U.S. at 141.
At step three, the Commissioner determines whether the impairments meet or equal “one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity.” Id.; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the analysis proceeds. Yuckert, 482 U.S. at 141. At this point, the Commissioner must evaluate medical and other relevant evidence to determine the claimant's “residual functional capacity” (“RFC”), an assessment of work-related activities that the claimant may still perform on a regular and continuing basis, despite any limitations his impairments impose. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e), 416.945(b)-(c).
At step four, the Commissioner determines whether the claimant can perform “past relevant work.” Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can work, he is not disabled; if he cannot perform past relevant work, the burden shifts to the Commissioner. Yuckert, 482 U.S. at 146 n. 5.
Finally, at step five, the Commissioner must establish that the claimant can perform other work that exists in significant numbers in the national economy. Id. at 142; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
III. The ALJ's Decision
At step one, the ALJ determined that Plaintiff had engaged in substantial gainful activity after his alleged onset date of October 15, 2011, through his date last insured of December 31, 2017. Tr. 17. The ALJ found, however, that there had been a continuous 12-month period during which Plaintiff did not engage in substantial gainful activity. Id. The ALJ's remaining findings addressed this period during which Plaintiff did not engage in substantial gainful activity, which occurred from July 1, 2012, through his date last insured. Tr. 17-18.
At step two, the ALJ determined that Plaintiff has the following severe impairments: “lumbar spine degenerative disc disease; cervical spine degenerative disc disease; and bilateral carpal tunnel syndrome status post releases.” Tr. 18.
At step three, the ALJ determined that Plaintiff's impairments did not meet or medically equal the severity of a listed impairment. Id. The ALJ then assessed Plaintiff's residual functional capacity (“RFC”), finding that Plaintiff could perform light work as defined in 20 C.F.R. 404.1567(b) with the following limitations:
he needed to alternate from the standing or sitting position every hour for approximately five to ten minutes while staying on task. In addition, he could not climb ladders, ropes, or scaffolds or crawl; could only occasionally stoop, kneel, crouch, and climb flights of stairs; could only occasionally reach overhead bilaterally and frequently handle, finger, and feel objects bilaterally; and needed to avoid extreme cold temperatures and unprotected heights.Tr. 18-19.
At step four, the ALJ found that Plaintiff could perform his past relevant work as a construction superintendent. Tr. 26. Nevertheless, the ALJ proceeded to step five.
At step five-considering Plaintiff's age, education, work experience, and RFC-the ALJ found that a significant number of jobs existed in the national economy that Plaintiff could perform, including work as a routing clerk, cashier, or self-service store attendant. Tr. 27-28. Thus, the ALJ concluded that Plaintiff is not disabled. Tr. 28.
DISCUSSION
Plaintiff argues that the ALJ erred in three ways: (1) improperly rejecting medical opinions; (2) erroneously rejecting Plaintiff's subjective symptom testimony; and (3) failing to incorporate all the relevant evidence into Plaintiff's RFC. Pl.'s Opening Br. 4-14, ECF 11. The Commissioner argues that the ALJ's decision is supported by substantial evidence and free from harmful legal error. Def.'s Br. 3-20, ECF 12.
As is explained below, the Court finds that ALJ's decision is supported by substantial evidence, and the ALJ did not commit harmful legal error. Thus, this case should be affirmed.
I. Medical Opinion Evidence and Prior Administrative Medical Findings
For claims filed on or after March 27, 2017, the current medical regulations apply. Revisions to Rules Regarding the Evaluation of Medical Evidence (“Revisions to Rules”), 2017 WL 168819, 82 Fed.Reg. 5844-01, at *5867-68 (Jan. 18, 2017). Under the current regulations, the ALJ is no longer required to “defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s).” 20 C.F.R. § 404.1520c(a). Instead, the ALJ must consider all the medical opinions in the record and evaluate each medical opinion's persuasiveness using factors. Id. The two most important factors in determining a medical opinion's persuasiveness are the opinion's “supportability” and “consistency.” 20 C.F.R. §§ 404.1520c(a), 416.920c(a). The ALJ must articulate “how [he or she] considered the supportability and consistency factors for a medical source's medical opinions . . . in [his or her] decision.” 20 C.F.R. §§ 404.1520c(b)(2), 416.1520c(b)(2).
With regard to supportability, the “more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s), the more persuasive the medical opinions . . . will be.” 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1). As to consistency, the “more consistent a medical opinion(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) . . . will be.” 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2). The ALJ is not required to explain how he considered other factors, unless the ALJ finds that two or more medical opinions about the same issue are equally well-supported and consistent with the record but not identical. See 20 C.F.R. §§ 404.1520c(b)(3), 416.1520c(b)(3). Moreover, in reviewing the ALJ's decision, the Court must consider whether the ALJ's analysis has the support of substantial evidence. See 42 U.S.C. § 405(j); see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989).
Even if there is some error, the Court “may not reverse an ALJ's decision on account of an error that is harmless.” Molina v. Astrue, 674 F.3d 1104, 1111 (2012). An error is harmless when it is inconsequential to the ultimate non-disability decision. Stout v. Comm'r of Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). In other words, “an error is harmless so long as there remains substantial evidence supporting the ALJ's decision and the error ‘does not negate the validity of the ALJ's ultimate conclusion.'” Molina, 674 F.3d at 1115 (quoting Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004)). Courts look to the record as a whole to determine whether an error alters the outcome of a case. Molina, 674 F.3d at 1115. “[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination.” Stout, 454 F.3d at 1055 (quoting Shineski v. Sanders, 556 U.S. 396, 409 (2009)).
Plaintiff argues that the ALJ improperly assessed medical opinion evidence from four medical providers: opinions from three state agency medical consultants who conducted administrative medical findings related to Plaintiff's Title II applications, and the medical opinion from Plaintiff's neurologist. Pl.'s Opening Br. 5-9. In particular, Plaintiff argues that the ALJ's evaluation of medical evidence from (1) the three State agency medical consultants- Dr. Martin Kehrli, M.D., Dr. Susan Johnson, M.D., and Dr. Thomas Davenport M.D.,-and (2) Plaintiff's neurologist-Dr. Rodrigo Lim, M.D.-were unsupported by substantial evidence. Id. A. Dr. Kehrli, Dr. Johnson, and Dr. Davenport
Dr. Kehrli conducted administrative medical findings related to Plaintiff's prior Title II application. Tr. 25. In January 2015 at the initial level, Dr. Kehrli found that Plaintiff could perform only perform sedentary work and was limited to frequent handling. Tr. 109-10. Dr. Kehrli further determined that Plaintiff did not have any postural, reaching, fingering, feeling, or environmental limitations. Id. In March 2015 at the reconsideration level, Dr. Sharon Meyers- another state agency medical consultant-agreed with Dr. Kehrli's assessment that Plaintiff did not have any postural or manipulative limitations, but Dr. Meyers opined that Plaintiff had some environmental limitations and that he could perform a higher exertional level of light work rather than sedentary work. Tr. 119-21.
Plaintiff does not argue that the ALJ erroneously assessed Dr. Meyers's opinion; however, the Court includes a summary of Dr. Meyers's opinion as it is relevant background in discussing the ALJ's evaluation of the medical record.
Dr. Johnson and Dr. Davenport conducted administrative medical findings related to Plaintiff's present Title II application. Tr. 25. In April 2019 at the initial level, Dr. Johnson concurred with Dr. Meyer's prior findings regarding Plaintiff's exertional level, but Dr. Johnson found that Plaintiff had some postural and reaching limitations with no environmental limitations. Tr. 83-85. In particular, Dr. Johnson determined that Plaintiff could engage in bilateral overhead reaching on an occasional basis, and Plaintiff could only occasionally climb ramps, stairs, ladders, ropes, and scaffolds and occasionally stoop, crouch, or crawl. Tr. 84-85. In December 2019 at the reconsideration level, Dr. Davenport concurred with Dr. Johnson's administrative medical findings. Tr. 98-100.
The ALJ determined that Drs. Johnson and Davenport's findings were the most persuasive, as they most recently reviewed the medical evidence of record in 2019, while Dr. Kehrli reviewed the medical evidence in 2015. Tr. 26. The ALJ reasoned that because Dr. Kehrli could only review the medical findings through 2015, he did not have an opportunity to review Plaintiff's functioning through his date last insured in 2017. Id. As such, the ALJ found that Dr. Johnson's and Dr. Davenport's findings were most consistent with the record as a whole, providing the example that Dr. Johnson and Dr. Davenport accounted for Plaintiff's reaching limitations that occurred during the more recent period at issue. Id. In all, the ALJ ultimately incorporated Dr. Johnson's and Dr. Davenport's prior administrative medical findings into Plaintiff's RFC, and the ALJ ultimately found that Plaintiff was subject to even greater postural and manipulative limitations beyond those found by Drs. Johnson and Davenport. Id.
The ALJ reasonably evaluated the prior administrative findings of the three state agency medical consultants. Regarding supportability, the ALJ noted that all the state agency medical consultants supported their findings with the medical evidence available at the time that the consultants prepared their reports. See Tr. 25-26. The ALJ further found that Dr. Johnson and Dr. Davenport's reports were more persuasive under the supportability factor because they reviewed all the medical evidence that spanned the relevant period at issue from October 2011 through December 2017. Tr. 25-26 (citing 81, 96-97). Additionally, regarding consistency, the ALJ found that Dr. Johnson and Dr. Davenport's findings were more consistent with the record as a whole than those of Dr. Kehrli. Tr. 26. In support of that finding, the ALJ noted that Dr. Johnson and Dr. Davenport accounted for Plaintiff's reaching limitations related to his cervical spine degenerative disc disease that occurred during the more recent period than what Dr. Kehrli could consider. Id. As such, the ALJ appropriately considered the supportability and consistency of prior state agency medical consultants' findings.
B. Dr. Lim
Dr. Lim is Plaintiff's treating neurologist. Tr. 612, 615. In October 2015 and April 2016, Dr. Lim opined that Plaintiff must avoid pushing, pulling, or lifting objects heavier than ten pounds. Tr. 612, 615. Additionally, Dr. Lim noted in April 2016 that Plaintiff should avoid crawling, bending, twisting, or squatting and that Plaintiff is permanent disabled based on his neurological problems. Tr. 615.
The ALJ found Dr. Lim's opinions unpersuasive, reasoning that his opinion was unsupported by contemporaneous neurological examination findings and inconsistent with the record as a whole. Tr. 24. The ALJ also determined that Dr. Lim's statements concerning whether Plaintiff is disabled was neither valuable nor persuasive given tat the determination of disability is reserved to the Commissioner. Tr. 25.
Here, the ALJ reasonably evaluated Dr. Lim's medical opinions under the applicable regulations. Regarding the supportability factor, the ALJ explained that Dr. Lim's opinions were unsupported by his contemporaneous neurological examination findings showing that Plaintiff maintained full strength with no atrophy or fasciculations and that Plaintiff could walk without difficulty. Tr. 24 (citing Tr. 612-13, 615). Regarding the consistency factor, the ALJ found that Dr. Lim's opinion that Plaintiff must avoid pushing, pulling, or lifting objects heavier than ten pounds was inconsistent with Plaintiff's symptom testimony that he could lift up to twenty pounds before and after his carpal tunnel releases in 2017. Tr. 24-25; see Tr. 48. In sum, the ALJ appropriately considered the medical opinions under the current regulations.
II. Subjective Symptom Testimony
The ALJ is responsible for evaluating symptom testimony. SSR 16-3p, 2017 WL 5180304, at *1 (Oct. 25, 2017). There is a two-step process for evaluating a claimant's testimony about the severity and limiting effect of his symptoms. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, the claimant must produce objective medical evidence of one or more impairments that could reasonably be expected to produce some degree of symptoms. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The claimant is not required to show that the impairment could reasonably be expected to cause the severity of the symptoms, but only to show that it could reasonably have caused some degree of the symptoms. Id.
Second, the ALJ must assess the claimant's testimony regarding the severity of the symptoms. Id. The ALJ can reject the claimant's testimony “only by offering specific, clear and convincing reasons for doing so.” Id. Thus, the ALJ must specifically identify the testimony that she does not credit and must explain what evidence undermines the testimony. Holohan, 246 F.3d at 1208. General findings are insufficient to support an adverse determination; the ALJ must rely on substantial evidence. Id. To discredit a plaintiff's testimony regarding the degree of impairment, the ALJ must make a “determination with findings sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit claimant's testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002).
At the hearing, Plaintiff testified that he is unable to work due to back problems, neck pain, carpal tunnel, and knee issues. Tr. 44-45. He indicated that he has issues lifting because of his back and neck problems. Tr. 45-46. He noted that his back pain could be set off by sneezing, coughing, or trying to get his shoes on, which would cause back spasms and shooting pain down his legs that required him to lie in bed. Tr. 48-49. He testified that he could only stand for half an hour and sit for ten minutes before needing to move. Tr. 52. He indicated that he had limited ability to engage in household chores due to difficulty stooping, bending, and being able to manipulate things. Tr. 52-54. He testified that numbness in his hands caused him to drop things. Tr. 56-57. Further, he testified that he often used a cane. Tr. 60.
Plaintiff argues that the ALJ improperly rejected Plaintiff's subjective symptom testimony. Pl.'s Br. 10-13. Specifically, Plaintiff alleges that the ALJ failed to identify specific, clear, and convincing reasons supported by substantial evidence for rejecting his testimony. Id.
The ALJ provided specific, clear, and convincing reasons for rejecting Plaintiff's symptom testimony. In particular, the ALJ provided at least two reasons, supported by substantial evidence, for discounting Plaintiff's testimony: (1) improvement with medical treatment; and (2) Plaintiff's inconsistent statements.
First, the ALJ found that Plaintiff's conditions improved with medical treatment. An ALJ may discount a claimant's statements if medical opinion evidence contradicts the claimant's subjective testimony. Carmickle v. Comm'r, 533 F.3d 1155, 1161 (9th Cir. 2008). Factors relevant to evaluating a plaintiff's symptoms include the “effectiveness . . . of any medication” or “[t]reatment, other than medication[,]” that the plaintiff has taken to alleviate his pain or other symptoms. 20 C.F.R. § 404.1529(c)(3)(iv)-(v).
The ALJ here found that, despite Plaintiff's allegations concerning the severity of his symptoms, Plaintiff frequently reported symptom improvement with treatment. Tr. 20. For example, although Plaintiff alleged that he became disabled in October 2011 before spine surgery in January 2012, Plaintiff's medical examinations following surgery demonstrated that his symptoms improved, and Plaintiff reported that he had been doing well with medication relieving his pain. Tr. 438-39, 440-41, 440. A physical examination in January 2013 showed that Plaintiff could walk without the use of an assistive device with normal gate, and examinations in February and May 2013 further reflected that he had ongoing normal gait and five out of five strength throughout his lower extremities. Tr. 440, 443, 451-52, 497-99.
Plaintiff also consistently reported that his pain management regimen worked well to alleviate his pain. Tr. 622, 626-28, 993. Overall, physical examinations demonstrated that Plaintiff continued to demonstrate normal gait, full strength, and the ability to walk without difficulty, throughout the relevant period. Tr. 507-08, 543-44, 557, 610, 613, 615, 619, 622-23, 625, 738, 933-34. Thus, contrary to Plaintiff's allegations, the ALJ properly relied on medical evidence demonstrating that Plaintiff's condition improved with treatment and was controlled with medication.
Second, the ALJ determined that Plaintiff's statements were inconsistent. An “ALJ may consider inconsistent statements by a claimant in assessing h[is] credibility.” Popa v. Berryhill, 872 F.3d 901, 906-07 (9th Cir. 2017). Here, despite Plaintiff's allegations that he could not perform much lifting, could only sit for about ten minutes at a time, had a limited ability to perform household chores, and had difficulty manipulating items such as buttons and zippers, Tr. 45-46, 52, 54, 56, Plaintiff also testified at the same hearing that he could lift up to twenty pounds before and after his carpal tunnel releases in 2017, drive a car, use and pick up a pen or pencil, open a jar, and feed himself using utensils. Tr. 52, 54, 56-57, 61. Moreover, Plaintiff reported in August 2013 that he engaged in a lot of walking and hiking, and he performed both indoor and outdoor household chores such as mowing the lawn, waxing his truck, and helped put together a deck. Tr. 523.
In sum, the ALJ provided clear and convincing reasons, supported by substantial evidence, for rejecting Plaintiff's subjective symptom testimony. Although Plaintiff may disagree with the ALJ's interpretation of the record, the ALJ's interpretation is supported by substantial evidence, which precludes the Court from engaging in second-guessing. See Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (“Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld.”).
III. Plaintiff's RFC
The RFC is the most a person can do despite his physical or mental impairments. See 20 C.F.R. § 404.1545. “The ALJ assesses a claimant's RFC based on all the relevant evidence in [the] case record.” Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (quotations and citation omitted). In formulating an RFC, the ALJ must consider all medically determinable impairments, including those that are not “severe,” and evaluate “all of the relevant medical and other evidence,” including the claimant's testimony. 20 C.F.R. § 404.1545; see also Social Security Ruling (“SSR”) 96-8p, available at 1996 WL 374184. In determining a claimant's RFC, the ALJ is responsible for resolving conflicts in the medical testimony and translating the claimant's impairments into concrete functional limitations. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174-75 (9th Cir. 2008) (affirming the ALJ's translation of moderate functional limitations into the claimant's RFC). “Only limitations supported by substantial evidence must be incorporated into the RFC and, by extension, the dispositive hypothetical question posed to the VE.” Kimberley A. v. Kijakazi, No. 2:20-CV-01802-SB, 2022 WL 19203, at *5 (D. Or. Jan. 3, 2022) (citations omitted).
Plaintiff argues that the ALJ's Plaintiff's RFC is not supported by all the relevant evidence because (1) the ALJ's hypotheticals to the VE were unsupported by the record, and (2) the finding runs contrary to SSR 96-8p because the ALJ failed to assess whether Plaintiff can work on a regular and continuing basis. Pl.'s Opening Br. 13-14. The Court finds both arguments unpersuasive.
First, in arguing that that the ALJ's hypothetical to the VE was unsupported by the record and that the ALJ's RFC assessment did not account for all Plaintiff's limitations, Plaintiff merely reasserts his argument that the ALJ improperly discounted Plaintiff's testimony and medical opinion evidence. As already discussed above, the Court finds that the ALJ did not err in discounting medical opinion evidence or Plaintiff's symptom testimony. Thus, Plaintiff cannot establish that an RFC finding is incorrect merely by restating the argument that the ALJ improperly discounted other evidence. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175-76 (9th Cir. 2008). As such, the ALJ's hypothetical to the VE and the ALJ's computation of Plaintiff's RFC were supported by substantial evidence.
Second, Plaintiff argues that the ALJ failed to assess Plaintiff's ability to work on a regular and sustained basis, which was in violation of policy interpretation SSR 96-8p. Pl.'s Opening Br. 13-14. SSR 96-8p “explains that the RFC assessment ordinarily considers ‘an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis. A “regular and continuing basis” means 8 hours a day, for 5 days a week, or an equivalent work schedule.'” Chamberlin v. Astrue, 3:11-CV-01059-SI, 2013 WL 550514, at *12 (D. Or. Feb. 11, 2013) (quoting SSR 96-8p(1), available at 1996 WL 374184). However, “SSR 96-8p does not impose any additional requirements on the ALJ-the ALJ is required to assess work-related activities that can be performed on a regular and continuing basis under 20 C.F.R. § 404.1545(b)-(c) and 416.945(b)-(c).” Chamberlin, 2013 WL 550514, at *12-13 (internal quotations omitted).
The ALJ here addressed Plaintiff's ability to work a regular and continuing basis and concluded that Plaintiff's RFC was the most that he could perform in spite of his limitations. Tr. 18-19. Further, as discussed above, the ALJ's RFC assessment was supported by substantial evidence. The Court finds that the ALJ properly weighed the evidence, gave sufficient justification of his findings regarding Plaintiff's functional abilities, and there is substantial evidence in the record supporting the ALJ's conclusions.
RECOMMENDATION
The Court recommends affirming the Commissioner's decision.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
A party's failure to timely file objections to any of these findings will be considered a waiver of that party's right to de novo consideration of the factual issues addressed herein and will constitute a waiver of the party's right to review of the findings of fact in any order or judgment entered by a district judge. These Findings and Recommendation are not immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of judgment.