Khal v. Commissioner Social Security Administration, No. 3:2014cv01361 - Document 17 (D. Or. 2015)

Court Description: OPINION AND ORDER. The Commissioner's decision is AFFIRMED and this case is DISMISSED. See formal OPINION AND ORDER. Signed on 8/27/2015 by Chief Judge Ann L. Aiken. (rh)

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Khal v. Commissioner Social Security Administration Doc. 17 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON DAVID H. KHAL, Case No. 3:14-cv-01361-AA OPINION AND ORDER Plaintiff, v. CAROLYN W. COLVIN, Commissioner of Social Security, Defendant. Tim D. Wilborn Wilborn Law Office, P.C. P.O. Box 370578 Las Vegas, Nevada 89137 Attorney for plaintiff Billy Williams Janice E. Hebert United States Attorneys Office 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97201 Jeffrey E. Staples Office of General Counsel Social Security Administration 701 Fifth Avenue, Suite 2900 Seattle, Washington 98104 Attorneys for defendant Page 1 - OPINION AND ORDER Dockets.Justia.com AIKEN, Chief Judge: Plaintiff David Khal brings this action pursuant to the Social Security Act ("Act") to obtain judicial review of a final decision of the Commissioner of Social Security ("Commissioner"). The Commissioner denied plaintiff's application for Title II disability insurance benefits ("DIB"). For the reasons set forth below, the Commissioner's decision is affirmed and this case is dismissed. PROCEDURAL BACKGROUND This case has a long and complicated procedural history. 1 On March 9, 2004, application was plaintiff applied for DIB. denied initially and Tr. upon 58-60. After his reconsideration, hearing was held before an Administrative Law Judge ("ALJ"); a on October 11, 2006, the ALJ issued a decision finding plaintiff not disabled within the meaning of the Act. Tr. 1073-80. On May 15, 2009, the Appeals Council remanded the matter for reconsideration of whether plaintiff engaged in substantial gainful activity after the alleged onset date. Tr. 1115-18. Another administrative hearing was held on March 11, 2010, at which plaintiff was represented by counsel and testified, as did a vocational expert ( "VE") and plaintiff's wife, Alyce Khal. Tr. 1198-1227. On March 24, 2010, the ALJ determined that plaintiff was not disabled. Tr. 13-27. After the Appeals Council denied his request for review, plaintiff filed a complaint in this Court. Tr. 6-8. 1 The record before the Court constitutes over 1400 pages, but with multiple incidences of duplication. Where evidence occurs in the record more than once, the Court will generally cite to the transcript pages on which that information first appears. Page 2 - OPINION AND ORDER On March 6, 2013, this Court found that the ALJ did not err in assessing the statements of plaintiff or Mrs. Khal. Tr. 1249-70. Nevertheless, in light of the ALJ's failure to provide a legally sufficient reason to reject the medical opinion of Paul Puziss, M.D., the Court remanded the matter for further proceedings. Id. On March 11, 2014, a third administrative hearing took place, wherein plaintiff was again represented by counsel and testified, as did Mrs. Khal. Tr. 1370-1414. On May 1, 2014, the ALJ issued a third decision finding plaintiff not disabled under the Act. Tr. 1231-46. Plaintiff subsequently commenced this lawsuit. STATEMENT OF THE FACTS Born on February 18, 1949, plaintiff was 55 years old on the alleged onset of disability and 65 years old at the time of the third hearing. highschool Tr. 58, 1231, and chiropractic 1392. school, Plaintiff and was 15 graduated credits from shy of obtaining an undergraduate degree in biology. Tr. 122-27, 1205. He worked as a chiropractor for more than 25 years, during which time he owned and managed his own practice. Tr. 260. Plaintiff sustained an on-the-job injury in May 2013 that rendered him unable to continue his previous work. Tr. 441-42. He alleges disability as of February 1, 2004, due to degenerative disc disease of the spine, diabetes, and hypertension, as well as issues with both shoulders and knees. Tr. 259; Pl.'s Opening Br. 2. STANDARD OF REVIEW The court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by Page 3 - OPINION AND ORDER substantial evidence in the record. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. scintilla. 1989). Substantial evidence is "more than a mere 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) (citation and internal quotations omitted) . The court must weigh "both the evidence that supports and detracts from Heckler, the 807 [Commissioner's] F. 2d interpretations of 772 771, the conclusions." (9th evidence 1986) . Cir. are Martinez v. Variable insignificant if the Commissioner's interpretation is rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 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. The process Commissioner has § 423(d) (1) (A). established a five-step sequential for determining whether a person is disabled. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. Commissioner determines whether a § Bowen v. 404.1502. First, the claimant is engaged in "substantial gainful activity." Yuckert, 482 U.S. at 140; 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. At step two, the Commissioner evaluates whether the claimant has a "medically severe impairment or combination of impairments." Page 4 - OPINION AND ORDER Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 404.1520(c). If the claimant does not have a severe impairment, he is not disabled. At step three, the Commissioner determines whether the claimant's impairments, either singly or in combination, meet or equal "one of [Commissioner] a number of acknowledges listed are so impairments severe substantial gainful activity." Yuckert, C.F.R. 404.1520(d). § If so, the as 4 82 U.S. claimant is that to at the preclude 14 0-41; 20 presumptively disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141. At step four, the Commissioner resolves whether the claimant can still perform "past relevant work." 20 C.F.R. the claimant can work, he is not disabled; § 404.1520(f). If if he cannot perform past relevant work, the burden shifts to the Commissioner. At step five, the Commissioner must establish that the claimant can perform other work existing in significant numbers in the national or local economy. Yuckert, 482 U.S. at 141-42; 20 C.F.R. § 404.1520(g). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. § 404.1566. THE ALJ'S FINDINGS At step one of the five-step process outlined above, the ALJ found that plaintiff had "not engaged in substantial gainful activity during the period from his alleged onset date of February 1, 2004 through his date last insured of December 31, 2008." Tr. 1234. At step two, the ALJ determined plaintiff's "degenerative disc disease of the lumbar and cervical spine, rotator cuff tear of Page 5 - OPINION AND ORDER the left shoulder, small tear with free margin of the right medial meniscus, meniscus, a small tear of the bilateral shoulder free margin of the impingement, and left lateral chronic left acromioclavicular strain aggravating arthritis" were medicallydeterminable and severe. Tr. 1234-35. At step three, the ALJ found that plaintiff's impairments, either singly or in combination, did not meet or equal the requirements of a listed impairment. Tr. 1235. Because he did not establish presumptive disability at step three, the ALJ continued to evaluate how plaintiff's impairments affected his ability to work. possessed the residual The ALJ resolved that plaintiff functional capacity ( "RFC") to "perform sedentary work" except that he must "avoid concentrated exposure to vibration and the use of ladders, ropes, and scaffolds," and "could occasionally climb ramps and stairs, stoop, kneel, crouch, crawl, and perform overhead reaching." Tr. 1236. At step four, the ALJ determined plaintiff could not perform his past relevant work. Tr. 1243. At step five, the ALJ found that plaintiff acquired transferrable skills from his past relevant work which enabled him to perform the sedentary, semi-skilled position of information clerk. Tr. 1244. Accordingly, the ALJ concluded that plaintiff was not disabled within the meaning of the Act prior to the date last insured. Tr. 1245. DISCUSSION Plaintiff argues that the ALJ erred by: fully credible; ( 1) finding him not (2) improperly assessing the third-party testimony Page 6 - OPINION AND ORDER of Mrs. Khal; (3) rejecting medical opinion evidence furnished by Dr. Puziss; and (4) rendering an invalid step five finding. I. Plaintiff's Credibility Plaintiff asserts that the ALJ failed to provide a clear and convincing reason, supported by substantial evidence, for rejecting his subjective symptom testimony concerning the severity of his impairments. When a claimant has medically documented impairments that could reasonably be expected to produce some degree of the symptoms complained of, evidence of and the record contains no affirmative malingering, "the ALJ can testimony about the severity of specific, reject the claimant's symptoms only by offering clear and convincing reasons for doing so." Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) A general assertion that the (citation omitted). claimant is insufficient; the ALJ must "state which . credible what and evidence suggests the credible." Dodrill v. Shalala, 12 F.3d 915, not credible is testimony is not complaints 918 are not (9th Cir. 1993). The reasons proffered must be "sufficiently specific to permit the reviewing court to conclude that the ALJ did discredit the claimant's testimony." Orteza v. 748, 750 (9th Cir. 1995) not arbitrarily Shalala, 50 F.3d (internal citation omitted). If the "ALJ's credibility finding is supported by substantial evidence in the record, [the court] may not engage in second-guessing." Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation omitted). Initially, this Court previously considered and affirmed the ALJ's adverse credibility finding. Tr. 1254-60. On remand, the ALJ Page 7 - OPINION AND ORDER relied on many of the same legally valid reasons to find plaintiff not fully credible. Tr. 1236-43. Plaintiff now attacks those reasons on the same bases he did in his prior appeal, such that he presented no justification for this Court to diverge from its prior ruling. See Thomas v. Bible, denied, 508 U.S. 951 (1993) 983 F.2d 152, 154 (9th Cir.), cert. ("a court is generally precluded from reconsidering an issue that has already been decided by the same court") 882, (citation omitted); see also Moisa v. Barnhart, 887 appeal, (9th Cir. should not claimant] 2004) ("[t]he Commissioner, having lost this have another opportunity to is not credible any more than 367 F.3d show that [the claimant], [the had he lost, should have an opportunity for remand and further proceedings to establish his credibility") Regardless, erroneous. After determined that the ALJ' s May 2014 summarizing plaintiff's ( citation omitted) . his credibility finding is not hearing medically testimony, determinable the ALJ impairments could reasonably be expected to produce some degree of symptoms, but his statements regarding the extent of those symptoms were not fully credible due to his inconsistent physical activities, failure to report pain symptoms or follow the prescribed treatment plan, and lack of interest in seeking other suitable employment, as well as because he was "seeking benefits from the very program, Social Security, that he apparently evaded funding [via taxes] during his [lucrative] working years by paying himself through shareholder distributions rather than compensation." Tr. 1236-45. Page 8 - OPINION AND ORDER Notably, the ALJ found that plaintiff's hearing statements specifically, that he has "no physical [or] mental activity [or] recreation" and could only sit for up to 30 minutes at one time were undermined by his ability to travel and the independent observations of his providers. Tr. 1195, 1241-42, 1381. Activities may be used to discredit a claimant where they either "are transferable to a work setting" or "contradict claims of a totally debilitating impairment." Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012). The record demonstrates that plaintiff traveled extensively after the alleged onset date, both domestically and internationally, for business and recreation. See, e.g., Tr. 309, 899, 939, 1038, Tommasetti v. 1043-44, Astrue, 1047, 1355, 533 F. 3d 1035, 13 9 8 - 0 5 , 1040 14 1 0 -13 ; .:::s..:::::e'-"e'---'a=l=s=o (9th Cir. 2008) (ALJ properly inferred that the claimant was not as physically limited as alleged due to his ability to travel to Venezuela). Further, plaintiff's vocational counselor observed that he "sat for a very lengthy intake interview quite comfortably," despite reporting "that if he sits for more than one-half hour he has pain." also Tr. Tr. 125; see 1343-52 (plaintiff repeatedly communicating to his doctor in the months leading up to the third administrative hearing that he was "feeling well"); 1359 (plaintiff recounting in March 2012 that "he is feeling relatively well" but recently "played golf for 8 hours with a friend," which caused some leg swelling). Although plaintiff offers a more favorable interpretation of this evidence, the ALJ's reading was nonetheless rational such that it must be upheld. Batson v. Comm'r of Soc. Sec. Page 9 - OPINION AND ORDER Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). The sought ALJ also discounted plaintiff's little medical treatment for his testimony because he allegedly debilitating impairments during the relevant time period and consistently failed to report any pain symptoms or limitations to his treating providers. Tr. 1239-42. An ALJ may consider a claimant's failure to report symptoms in making an adverse credibility finding. Greger v. Barnhart, 464 F.3d 968, 972 testimony reflected that, primary treatment for (9th Cir. after his 2006, 2006). Dr. pain-inducing Plaintiff's 2014 Puziss provided the physical impairments; Fayyaz Mahmood, M.D., managed the majority of his other conditions. Tr. 1378-81. Yet there are no chart notes from Dr. Puziss between November 2006 and July 2009, when plaintiff presented after the date last insured with pain in his right wrist; despite seeing Dr. Puziss somewhat regularly thereafter, plaintiff did not complain of any back or shoulder pain until May 2013. Moreover, plaintiff Tr. reported virtually no pain, 987-90, 1311-20. discomfort, or functional limitations to Dr. Mahmood, his treating provider since 2001. See, e.g., Tr. 334-47, 479-518, 1038-45. Additionally, the ALJ found plaintiff's non-compliance with Dr. Mahmood's prescribed treatments belied his credibility. Tr. 1242. An ALJ may discredit a claimant due to an "unexplained or inadequately explained failure to follow a prescribed course of treatment.n Tommasetti, 553 F.3d at 1039; SSR 96-7p, available at Page 10 - OPINION AND ORDER 1996 WL 374186. 2 Plaintiff frequently adjusted his medications or failed to comply with his doctors' recommendations, despite the fact that Dr. Mahmood repeatedly counseled against such practices. Tr. 334, 480-81, 483, 899, 1038, 1041, 1045. Thus, the ALJ provided several specific, clear and convincing reasons, supported by substantial evidence, for rejecting plaintiff's subjective symptom statements. As a result, this Court need not discuss all of the reasons provided by the ALJ because at least one legally sufficient reason exists. Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008). The ALJ's credibility finding is affirmed. 3 2 The administrative record does not contain any explanation for plaintiff's failure to follow the recommendations of his medical providers, including any limitation in financial resources. In fact, plaintiff has various real estate holdings from which he derives significant income and also receives $5000 per month in long-term disability benefits; while not dispositive, any benefits granted under the Act would not be pocketed by plaintiff but instead would go to his insurer and attorney. Tr. 1182-85, 1375. Furthermore, plaintiff's counsel's speculation - i.e. "it may be (and probably is) that [he] believed he was qualified to make adjustments to his own dosage" because he "ran a successful medical practice for many years" is unavailing. Pl.'s Opening Br. 14. Plaintiff was not a medical doctor and therefore did not have the ability to prescribe or adjust medications. 3 Alternatively, plaintiff contends that the ALJ should have developed the record in regard to his credibility because "perhaps there is a reasonable explanation" for his missed appointments with his vocational counselor and lack of medical compliance. Pl.'s Opening Br. 14. The claimant bears the burden of proving the existence or extent of an impairment, such that the ALJ's limited "duty to develop the record further is triggered only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence." Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) (citation omitted). Neither the ALJ nor any medical source found the record to be ambiguous or insufficient for proper evaluation; plus, this case has been ongoing for more than ten Page 11 - OPINION AND ORDER II. Lay-Witness Testimony Plaintiff next asserts that the ALJ neglected to provide a germane reason to reject the testimony of Mrs. Khal. Lay testimony regarding a claimant's symptoms or how an impairment affects the ability to work is competent evidence that an ALJ must take into account. Molina, 674 F.3d at 1114 (citation omitted). The ALJ must provide "reasons germane to each witness" in order to reject such testimony. Id. Mrs. March (citation and internal quotation omitted). Khal completed a third-party adult function report in 2004, as administrative well as hearings. testified Tr. at 275-83, the second 1214-18, and 1396-1411. third Her statements generally reflect that plaintiff did not engage in any daily activities beyond going to doctors' appointments, watching television, paying bills, performing home exercises, visiting with friends and family, traveling, and occasional grocery shopping. Id. She remarked further that he needed to change position frequently and lay down for several hours per day. Id. The ALJ afforded "little weight" to Mrs. Khal's opinion "for the reasons little weight is given to [plaintiff's] testimony regarding the extent and severity of his limitations; [plaintiff's] inconsistent physical activities, limitations, his inconsistent reporting of and his failure to follow the prescribed treatment plan." Tr. 1242-43. An ALJ may reject lay testimony on same basis as the claimant's discredited subjective reports. Valentine v. years and the date last insured lapsed in 2008. The ALJ's duty to more fully develop the record was not triggered. Page 12 - OPINION AND ORDER Comm'r Soc. Sec. Admin., also Molina, 574 F.3d 685, 674 F.3d at 1114 694 (9th Cir. 2009); see ("if the ALJ gives germane reasons for rejecting testimony by one witness, the ALJ need only point to those reasons witness") when rejecting (citations omitted). similar testimony by a Likewise, different inconsistency with the evidence of record is a germane reason to reject a third-party's statements. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). An independent review of the record reveals that Mrs. Khal's testimony concerning plaintiff's functional limitations is nearly identical provided to plaintiff's. specific, clear As and addressed in convincing section reasons, I, the ALJ supported by substantial evidence, to find plaintiff less than fully credible, and these reasons are equally applicable to Mrs. Khal's testimony. The ALJ's evaluation of the lay witness testimony is upheld. III. Medical Opinion Evidence Plaintiff argues that the ALJ erred by failing to provide a legally sufficient reason, supported by substantial evidence, for discrediting the medical opinion of Dr. Puziss. There are three types of medical opinions in Social Security cases: those from treating, examining, and non-examining doctors. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). To reject the uncontroverted opinion of a treating or examining doctor, the ALJ must present clear and convincing reasons. Bayliss, 427 F.3d at 1216 (citation omitted). If a treating Page 13 - OPINION AND ORDER or examining doctor's opinion is contradicted by another doctor's opinion, it may be rejected by specific and legitimate reasons. Id. In December 2004, Dr. Puziss examined plaintiff for the first time post-injury and diagnosed him with "[d]egenerative spondylosis, mainly L4-5 with mild foraminal stenosis bilaterally L4-5 and a small disc protrusion, probably not symptomatic L5-S1, small annular tear L4-5"; "[s]mall tear free margin right medical meniscus"; "[s]mall tear free margin left lateral meniscus"; and "[b]ilateral small full thickness supraspinatus rotator cuff tears." Tr. 473. Dr. Puziss noted that plaintiff "remains disabled from his work as a chiropractor, probably permanently." Tr. 473. Dr. Puziss similarly opined, in January 2005 and March 2005, that plaintiff was unable to perform chiropractic work. Tr. 459, 462. In July 2005, Dr. Puziss stated that plaintiff "remains in disability privately and is likely permanently and totally disabled from returning to work as a chiropractor [and] probably incapable of any kind of work given his age, education, and skill." Tr. 455-56. In April 2006, Dr. Puziss prepared a "Physical Capacities Evaluation," on which he wrote plaintiff "is permanently and totally disabled realistically." Tr. 516. In March 2010, Dr. Puziss completed a medical questionnaire prepared by plaintiff's attorney. Tr. 1063-66. Dr. that plaintiff could occasionally/frequently lift pounds, Puziss opined less than 10 stand or walk for less than two hours in an eight hour workday, and sit for three hours in eight hour workday. Tr. 1063. He also checked boxes reflecting that plaintiff must be able shift Page 14 - OPINION AND ORDER positions at will and lie down at unpredictable intervals. 1064. Dr. stoop, Tr. Puziss rated plaintiff as never being able to twist, or crouch, but occasionally be able to climb stairs and ladders. Tr. 1065. Lastly, Dr. Puziss circled the option indicating that plaintiff's impairments would cause him to be absent from work more than three times per month. Tr. 1066. The ALJ thoroughly analyzed the medical Puziss and gave weight to evidence from Dr. [his opinions] that during the relevant time period [plaintiff] was precluded from returning to his past work as a chiropractor." Tr. 1238-40. The ALJ observed, however, that the doctor's July 2005 statement of total disability was Tr. 1240-41. The ALJ rejected Dr. 2006 opinion because it was [plaintiff] work, [whether] or from any work," and not as well explained as the VE's 1040. The ALJ afforded ( 1) offered well after the date last insured and did not relate back; trigger Tr. . weight to Dr. Puziss' opinion from 2010" because it was: ( 2) finger, part based on a diagnosis, right ring finger that did not appear in the whatsoever during the relevant time period"; (3) the he intended that was permanently and totally disabled from his past finding of transferable work skills. only Puziss' April other information in the record," medical record with including plaintiff's extensive travel and the independent observations of his other providers; and (4) did not objective findings. Tr. 1241. Page 15 - OPINION AND ORDER link specific limitations to any An ALJ is not required to incorporate limitations phrased equivocally into the RFC. Valentine, 574 F. 3d at 691-92. An ALJ may also reject "check-off reports that [do] not contain any explanation of the bases of their conclusions" or medical opinions that are inconsistent with the claimant's daily activities. Crane v. Shalala, 76 F. 3d 251, 253 (9th Cir. 1996); Morgan v. Cornrn'r of Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999). "[I]t well-established that an ALJ may reject a medical opinion, that of a treating doctor, where it was is even completed years after claimant's date last insured and was not offered as retrospective analysis." Morgan v. Colvin, 2013 WL 6074119, *10 (D.Or. Nov. 13, 2013) (citations and internal quotations and ellipses omitted) . Substantial evidence supports the ALJ' s assessment of the medical evidence in the case at bar. By prefacing it with the term "probably," Dr. Puziss' July 2005 remark was phrased equivocally. As the ALJ reasonably determined, the inclusion of such speculative language demonstrates a "lack of confidence" in this vocational conclusion. Tr. ("Dr. Puziss' s 455-56, 516, 1241; see also Pl.'s Opening Br. 12 statements about Plaintiff's age, education, and work skills might have gone beyond his area of expertise"); Morgan, 169 F. 3d at 600 ("the opinion of the treating physician is not necessarily conclusive as to either the physical condition or the ultimate issue of disability") (citation omitted). Concerning his April 2006 opinion, there is no reference to any objective medical findings, which, as the ALJ' s summary of the medical evidence indicated, were mild to moderate and did not require surgery per Dr. Puziss' reports. Tr. 1238-39. Given Dr. Puziss' four previous Page 16 - OPINION AND ORDER opinions, all of which predominately related to plaintiff's prior chiropractic work, the meaning of the doctor's April 2006 comment was ambiguous. Finally, as discussed in section I, plaintiff's demonstrated physical activities are inconsistent with several of Dr. functional restrictions. In any event, Puziss' plaintiff did not resume treatment with Dr. Puziss until the adjudication period expired; he did not report significant disruption from any condition that predated the date last insured until more than three years after Dr. Puziss issued his March 2010 evaluation. Moreover, Dr. Puziss' March 2010 opinion did not relate plaintiff's current symptoms or limitations back to the relevant time frame. The ALJ's evaluation of Dr. Puziss' opinions is affirmed. IV. Step Five Finding Plaintiff asserts that the ALJ's step five finding is erroneous because it did not account for all of the limitations set forth in his testimony, Mrs. Khal's third-party statements, and the opinions finding of Dr. Puziss. Plaintiff also contends the step is deficient because the ALJ relied on "one five sedentary occupation, information clerk," in contravention of Lounsburry v. Barnhart, 483 F. 3d 111 have [transferable] any (9th Cir. skills 2006), and plaintiff "does not related to directing people to various parts of the hospital." Pl.'s Opening Br. 16-18. A. Failure to Account for Limitations The RFC is the limitations. 20 C.F.R. must consider maximum § a claimant can do despite his 404.1545. In determining the RFC, the ALJ limitations imposed by all of a claimant's impairments, even those that are not severe, and evaluate "all of Page 17 -OPINION AND ORDER the relevant medical and other evidence," including the claimant's testimony. SSR 96-8p, available at 1996 WL 374184. Only limitations supported by substantial evidence must be incorporated into the RFC and, by extension, the dispositive hypothetical question posed to the VE. Osenbrock v. Apfel, 240 F3d 1157, 1163-65 (9th Cir. 2001). As addressed herein, the ALJ properly discredited plaintiff, Mrs. Khal, and Dr. Puziss, and there is no indication, outside of this evidence, that plaintiff suffered from functional limitations beyond those outlined in the RFC during the relevant time period. As such, plaintiff's argument, which is contingent upon a finding of harmful error in regard to the aforementioned issues, is without merit. Bayliss, 427 F3d at 1217-18; Stubbs-Danielson v. Astrue, 539 F3d 1169, 1175-76 (9th Cir. 2008). The ALJ's step five finding is upheld in this regard. B. Transferable Work Skill to a Single Occupation Claimants who are age 55 or older and limited to sedentary work are considered disabled unless their past relevant work was skilled or semiskilled and those skills are transferable to other skilled or semiskilled work with very little, if any, vocational adjustment. Tommasetti, 533 F. 3d at 1042-43 (citations omitted); 20 C. F. R. Pt. C.F.R. § 4 0 4, Subpt. P, App. 2, §§ 2 01. 0 0, 2 01. 0 6, 2 01. 0 7; 404.1568(d). Claimants who fall into this category cannot be expected to make a vocational adjustment to substantial changes in work simply because skilled or semiskilled jobs can be identified which have some degree of skill similarity with their PRW. In order to establish transferability of skills for such individuals, the semiskilled or skilled job duties of their past work must be so closely related to other jobs which they can perform that they could be expected to perform these other identified jobs at a high degree of proficiency with a minimal amount of job orientation. [W] here job Page 18 - OPINION AND ORDER 20 skills have universal applicability across industry lines, e.g., clerical, professional, administrative, or managerial types of jobs, transferability of skills to industries differing from past work experience can usually be accomplished with very little, if any, vocational adjustment. SSR 82-41, available at 1982 WL 31389. At the hearing, the VE testified that plaintiff's previous work as a chiropractor was "medium [exertion] with [a] SVP: 8." Tr. 1218. In response to the ALJ's recounting of plaintiff's dispositive functional limitations, the VE explained: "I researched what I thought would be [the] most physically, you know, sedentary job that I though he would have transferability of skills to, and with such a high level of education and experience, what I came up with was information clerk, especially in a hospital setting." Tr. 1219-20. The position of information clerk is a "SVP: 4 job." Tr. 1222-23, 1226. The VE described this type work as follows: "when you go into a hospital, somebody assists you, maybe helps you, lets you know where the- where the particular doctor's office is, may look something up on the computer, may escort you to that office." Tr. 1222. She reported there was "a very large labor market" for the representative occupation of information clerk, with approximately 1,100 jobs in the regional economy and 77,000 jobs in the national economy. Tr. 1220. A "high percentage of th[ose] numbers [are] in the medical profession," such that "a conservative estimate would be at least 50 percent"- i.e. 550 positions regionally and 38,500 positions nationally. Tr. 1221-22. The VE identified plaintiff's transferable skills as "imparting information," "deal [ing] with patients," "run[ning] his own clinic," "knowledge of the medical Page 19 - OPINION AND ORDER field," and basic customer service and computer skills. Tr. 1222, 1225. She concluded that employers who would be looking for an information clerk at - in a healthcare type environment would be thrilled to have someone [like plaintiff] who [has] even more than . entry level skills." Tr. 1225. The ALJ accurately recounted the VE's testimony and found that plaintiff a work skills from his past relevant work" - i.e. background work in the health care industry," deal of experience imparting information," and service skills," clinic" - that accumulated from customer great his own medical transferable to others occupations with jobs that existed in significant numbers in the national economy." 4 Tr. 1245. Accordingly, the ALJ determined that, under Vocational Rule 201.07, section 201.00(f) of the Medical-Vocational Guidelines, and 20 CFR 404.1568(d) ,"a of 'not disabled' is appropriate." Id. The Court finds the ALJ properly evaluated transferability pursuant to SSR 82-41 in order to resolve that plaintiff's highly skilled past relevant work provided skills that would lend themselves to the semi-skilled position of information clerk. SSR 82-41, available at 1982 WL 31389; 20 C.F.R. available at 2000 WL 1898704; 404.1568; SSR 00-4p, see also Salazar v. F.Supp.2d 1202, 1221-22 (D.Or. 2012) 4 § Astrue, (rejecting a nearly identical Although plaintiff does not explicitly challenge the incidence of jobs identified by the ALJ, they are nonetheless sufficient. Gutierrez v. Comm'r of Soc. Sec., 740 F.3d 519, 528-29 (9th Cir. 2014). Page 20 - OPINION AND ORDER 859 argument to hold that similar qualities constituted transferable skills) ( citations omitted) . Plaintiff's remaining contention regarding Lounsburry has been expressly rejected by the Ninth Circuit. Tommasetti, 533 F.3d at 1043-44. In other words, the Medical-Vocational Guidelines relating to light work, which were the subject of Lounsburry and on which plaintiff relies, are not pertinent here. Soc. 357 Fed.App. Sec. Admin., LaBlue v. Colvin, 36, 2013 WL 5431490, 37 Earnshaw v. (9th Cir. *3-5 (D.Or. 2009); Sept. Comm'r of see also 26, 2013) (affirming the ALJ's decision under analogous circumstances). CONCLUSION For the reasons set forth above, the Commissioner's decision is AFFIRMED and this case is DISMISSED. IT IS SO ORDERED. Dated this ;t'"l day of August 2015. Ann Aiken United States District Judge Page 21 - OPINION AND ORDER

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