Opinion
NO: 2:14-CV-3105-RMP
01-27-2016
JOLENA GRACE CASTILLEJA, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
ORDER ADOPTING IN PART AND REJECTING IN PART REPORT AND RECOMMENDATION
BEFORE THE COURT is Magistrate Judge Victor E. Bianchini's November 27, 2015, Report and Recommendation, ECF No. 23, to grant Plaintiff's Motion for Summary Judgment, ECF No. 12, to deny the Commissioner's Motion for Summary Judgment, ECF No. 20, and to remand the case to the Commissioner for the immediate award of benefits. On December 11, 2015, the Commissioner filed objections to the Report and Recommendation. ECF No. 24. Plaintiff filed a reply on December 18, 2015. ECF No. 25. //
BACKGROUND
The Commissioner raises four objections to the Report and Recommendation: that the Magistrate Judge (1) improperly reversed the Administrative Law Judge's ("ALJ") credibility determination; (2) improperly reversed the ALJ's rejection of medical opinion; (3) incorrectly found that the vocational expert's testimony had no evidentiary value at step five of the sequential process; and (4) misapplied the "credit-as-true" rule to improperly remand for the immediate award of benefits. ECF No. 24.
DISCUSSION
I. Legal Standard
Under Federal Rule of Civil Procedure 72, the Court must reconsider de novo any part of the Magistrate Judge's Report and Recommendation that has been properly objected to and may accept, reject, or modify the recommended disposition. Fed. R. Civ. P. 72(b)(3).
II. Credibility Determination
The Commissioner argues that the ALJ provided legally adequate reasons for discounting Ms. Castilleja's credibility concerning the severity of limitations caused by psychological impairments. Specifically, the Commissioner alleges that the ALJ properly found that Ms. Castilleja lacked credibility due to (1) the lack of corroboration with medical evidence; (2) non-compliance with treatment recommendations; (3) activities of daily living; and (4) symptom improvement with treatment. ECF No. 24 at 4.
However, the ALJ only explicitly noted that Ms. Castilleja's allegations lack credibility due to inconsistency with reported activities of daily living. ECF No. 9-2 at 38, Tr. 37. While the ALJ discussed inconsistency with objective medical evidence, the ALJ noted this factor when finding that a third party function report completed by Ms. Castilleja's husband did not accurately report Ms. Castilleja's limitations. See id. As the Court is "constrained to review the reasons the ALJ asserts," Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003), the Court finds that the ALJ did not conclude that Ms. Castilleja lacked credibility due to any inconsistency with objective findings. Further, although the Commissioner notes that "[t]he ALJ rationally concluded such examination findings did not support allegations of disabling limitations," ECF No. 24 at 5, none of the medical evidence discussed by the ALJ concerns Ms. Castilleja's alleged psychological symptoms. See ECF No. 9-2 at 39, Tr. 38 (discussing physical back pain and neurological examinations). As such, it is highly questionable whether the ALJ's discussion has any relevance concerning Ms. Castilleja's alleged psychological limitations.
Similarly, the ALJ did not explicitly find that Ms. Castilleja lacked credibility due to non-compliance with treatment recommendations or symptom improvement with treatment. Although the ALJ noted that Ms. Castilleja did not comply with prescribed medications, the ALJ did not base the credibility finding on that notation. See ECF No. 9-2 at 33, Tr. 32. It is also questionable whether Ms. Castilleja's improvement of heart palpitations with treatment has any relevance to Ms. Castilleja's alleged limitations concerning psychological symptoms. See ECF No. 9-2 at 40, Tr. 39. As the Court is "constrained to review the reasons the ALJ asserts," Connett, 340 F.3d at 874, the Court finds that the ALJ did not find that Ms. Castilleja lacked credibility as to her alleged psychological limitations based on these factors.
A. Ms. Castilleja's Testimony
As recounted by the Magistrate Judge, Ms. Castilleja testified that:
She lives with her husband and four children. (T at 57). She provides child care when her husband is working. (T at 58). She can cook meals using a cookbook. (T at 59). Her husband does the family shopping. (T at 60). She can walk about a mile, with pain. (T at 60, 67). Sitting is difficult due to pressure in her back and numbness in her legs. (T at 61). She can lift, at most, two gallons of milk. (T at 63). She was hospitalized in January of 2012 for blackouts related to a pacemaker problem. (T at 63). Her back pain and heart problems are the most significant impediments to work. (T at 66). Bending and stooping are difficult. (T at 67). New people and stress cause panic attacks. (T at 67). She avoids family functions because of her panic attacks. (T at 67). She can follow instructions if she writes them down. (T at 67). She does not have problems getting along with supervisors or those in authority. (T at 68).
She has had two back surgeries, including the installation of a metal plate and two screws. (T at 69). She usually needs to lay down during the day for about two hours. (T at 70). She suffers from significant
depression and periodic panic attacks. (T at 71). Emotional difficulties would make it hard for her to hold down full-time employment. (T at 71). Plaintiff believes the stress of regular work activity would cause her to "panic," "shut down," and "get confused because [she] can't focus and ... get[s] frustrated." (T at 71-72). Blackout episodes related to her heart condition occur once or twice a week. (T at 74). Her medications affect her energy and concentration. (T at 75). Her heart rate is not under control. (T at 77).ECF No. 23 at 19-20.
B. Standard for Making Credibility Determination
The Commissioner's credibility determination must be supported by findings sufficiently specific to permit the reviewing court to conclude the ALJ did not arbitrarily discredit a claimant's testimony. Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991). If there is no affirmative evidence that the claimant is malingering, the ALJ must provide "clear and convincing" reasons for rejecting the claimant's testimony regarding the severity of symptoms. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998).
The Commissioner argues that the proper standard of review of an ALJ's credibility determination is "substantial evidence." ECF No. 24 at 3. However, as the Ninth Circuit is clear that the "clear and convincing reasons" standard governs, this Court is required to apply binding precedent. See Garrison v. Colvin, 759 F.3d 995, 1015 n.18 (9th Cir. 2014). --------
If the ALJ finds that a claimant's statements are not credible, she need not reject the entirety of a claimant's symptom testimony. See Robbins v. Social Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). The ALJ may find the claimant's statements about pain to be credible to a certain degree, but discount statements based on her interpretation of evidence in the record as a whole. See id. If the credibility findings are supported by substantial evidence in the record, the reviewing court may not second-guess the ALJ's determination. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). However, an ALJ's failure to articulate specifically "clear and convincing" reasons for rejecting a claimant's subjective complaints is reversible error. Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007).
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 allegations of limitations or between statements and conduct; daily activities; work record; and testimony from physicians and third parties concerning the nature, severity, and effect of the claimant's alleged symptoms. Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). // //
C. Activities of Daily Living
The Commissioner argues that the Magistrate Judge impermissibly re-evaluated the evidence concerning Ms. Castilleja's activities of daily living. ECF No. 24 at 7. The ALJ found that Ms. Castilleja's "wide range of activities," including caring for four children, cooking, doing household chores, driving, and washing the car, suggest "that her limitations are not as significant as alleged." ECF No. 9-2 at 38, 40, Tr. 37, 39.
The Magistrate Judge found that "the Ninth Circuit 'has repeatedly asserted that the mere fact that a plaintiff has carried on certain daily activities . . . does not in any way detract from her credibility as to her overall disability.'" ECF No. 23 at 21 (quoting Orn, 495 F.3d at 639). Based on Orn, the Magistrate Judge held that the ALJ erred in considering Ms. Castilleja's activities of daily living as part of the credibility analysis. Id.
The Magistrate Judge's citations to Orn and Fair v. Bowen, 885 F.2d 597 (9th Cir. 1989), present an incomplete picture of the Ninth Circuit's approach to the role of activities of daily living in an ALJ's credibility analysis. While it is correct that the "Social Security Act does not require that claimants be utterly incapacitated to be eligible for benefits . . . and many home activities are not easily transferable to . . . the workplace," activities of daily living may be considered "if a claimant is able to spend a substantial part of his day engaged in pursuits involving the performance of physical functions that are transferable to a work setting." Fair, 883 F.3d at 603 (emphasis in original). "Even where those activities suggest some difficulty functioning, they may be grounds for discrediting the claimant's testimony to the extent that they contradict claims of a totally debilitating impairment." Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012). For example, the Ninth Circuit has found that "reading, watching television, and coloring in coloring books are activities that are so underdemanding that they cannot be said to bear a meaningful relationship to the activities of the workplace." Orn, 495 F.3d at 639.
Unlike in Orn, the Court finds that it was not unreasonable for the ALJ to conclude that caring for four children, cooking, doing household chores such as scrubbing a shower and washing the car, and driving are activities of daily living that undermine Ms. Castilleja's claim that regular work activities would cause her to "panic" and "shut down." See ECF No. 9-2 at 38, 73, Tr. 37, 72. These activities are far more demanding than those at issue in Orn, and bear a reasonable relationship to the stresses and responsibilities that Ms. Castilleja would be expected to experience in the workplace. As such, the Court must defer to the ALJ's finding, and cannot impermissibly re-evaluate the evidence to reach a different conclusion. See Rollins, 261 F.3d at 857. The Court finds that the ALJ did not commit reversible error when considering activities of daily living in the credibility analysis.
D. Consistency with Medical Evidence of Record
As a separate basis for reversing the ALJ's credibility determination, the Magistrate Judge concluded that Ms. Castilleja's testimony "was consistent with the opinions of Dr. [Jesse] McClelland and Dr. [Thomas] Clifford." ECF No. 23 at 21. However, this statement is not entirely accurate. Ms. Castilleja testified that her emotional difficulties would cause her to "panic," "shut down," or "get confused." ECF No. 9-2 at 73, Tr. 72. Dr. McClelland noted that Ms. Castilleja "may struggle to deal with the usual stress encountered in the workplace, as she . . . is not able to adequately deal with her current levels of stress." ECF No. 9-10 at 68, Tr. 584 (emphasis added).
Dr. McClelland, however, concluded that Ms. Castilleja's psychological limitations would not preclude her from "perform[ing] work activities on a consistent basis." Id. Dr. Clifford found Ms. Castilleja only partially credible as "statements of disability are not fully supported by [medical evidence of record], thus it appears that [claimant] may be exaggerating some [symptoms]." ECF No. 9-3 at 10, Tr. 96. Although Dr. Clifford noted that Ms. Castilleja had a "diminished tolerance for stress," Dr. Clifford found that any psychological limitations would not preclude Ms. Castilleja from sustaining employment. See ECF No. 9-3 at 13-14, Tr. 99-100. Due to the lack of consistency, the Court finds that the ALJ did not err in failing to consider consistency between Ms. Castilleja's subjective complaints and the medical opinions of Drs. McClelland and Clifford.
E. Conclusion
The Court finds that the ALJ did not commit reversible error when considering inconsistencies between the severity of psychological limitations as alleged by Ms. Castilleja and her reported activities of daily living when conducting the credibility determination. The ALJ's finding was sufficiently "clear and convincing" to withstand review. See Reddick, 157 F.3d at 722. As such, the Court DECLINES TO ADOPT the Report and Recommendation's conclusion that the ALJ's credibility determination should not be sustained.
III. Rejection of Medical Opinion Evidence
A. Legal Standard for Rejecting Medical Opinion
"[T]he Commissioner must provide 'clear and convincing' reasons for rejecting the uncontradicted opinion of an examining physician." Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). If controverted, "the opinion of an examining doctor . . . can only be rejected for specific and legitimate reasons that are supported by substantial evidence in the record." Id. at 830-31. The same analysis applies to the medical opinions of treating physicians. Id. at 830. "[I]t is incumbent on the ALJ to provide detailed, reasoned, and legitimate rationales for disregarding the physicians' findings." Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988).
Concerning medical opinion evidence, "[t]he ALJ is responsible for resolving conflicts in medical testimony, and resolving ambiguity. Determining whether inconsistencies are material (or are in fact inconsistencies at all) and whether certain factors are relevant to discount the opinions . . . falls within this responsibility." See Morgan v. Comm'r of Social Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999).
B. Dr. Abner Preacher
Neither party has objected to the Magistrate Judge's conclusion that the ALJ's finding concerning Dr. Abner Preacher was supported by substantial evidence. See ECF No. 23 at 11. As such, the Court ADOPTS the Report and Recommendation as it pertains to Dr. Preacher.
C. Dr. Jesse McClelland
The Commissioner argues that the ALJ permissibly gave "little weight" to Dr. Jesse McClelland's medical opinion. ECF No. 24 at 10.
Dr. McClelland opined that Ms. Castilleja "should be able to perform simple and repetitive tasks [but] may struggle with detailed and complex tasks," may "have difficulty accepting instructions from supervisors," would have significant limitations concerning "her ability to work with coworkers and the public," "would struggle to maintain regular attendance," and "may struggle to deal with the usual stress encountered in the workplace." ECF No. 9-10 at 67-68, Tr. 583-84. The ALJ gave "little weight" to Dr. McClelland's opinion as it (1) appeared to heavily rely upon the claimant's subjective report of her symptoms; (2) was not consistent with Dr. McClelland's objective findings; (3) was not consistent with the third party function report completed by Ms. Castilleja's husband; and (4) was not consistent with Ms. Castilleja's activities of daily life. ECF No. 9-2 at 34-35, Tr. 33-34. The Magistrate Judge rejected the ALJ's proffered rationales for giving "little weight" to Dr. McClelland's opinion on the basis that the findings were not supported by substantial evidence. ECF No. 23 at 14-16.
1. Reliance on Self-Report
The Magistrate Judge found that, as Dr. McClelland undertook a detailed examination, the ALJ's finding that Dr. McClelland heavily relied upon Ms. Castilleja's subjective complaints was not supported by substantial evidence. ECF No. 23 at 14. When reviewing the mental status examination, the only abnormal notations made by Dr. McClelland were that Ms. Castilleja was "in obvious pain and had to stand throughout the interview," had an affect that was "depressed and anxious," and could only recall 1/3 objects after a five minute interval. ECF No. 9-10 at 65-66, Tr. 581-82. Based on both this examination and his discussion with Ms. Castilleja, Dr. McClelland concluded that Ms. Castilleja was limited in her ability to perform complex tasks, interact appropriately with supervisors, coworkers, and the public, maintain attendance, and handle work-related stress. ECF No. 9-10 at 67-68, Tr. 583-84.
Ms. Castilleja relies on Ghanim v. Colvin, 763 F.3d 1154 (9th Cir. 2014), for the proposition that "the ALJ must explain how she reached" the conclusion that a physician's opinion was largely based on self-reports. ECF No. 12 at 14. In Ghanim, "the ALJ offered no basis for his conclusion that these opinions were based more heavily on Ghanim's self-reports, and substantial evidence does not support such a conclusion." Id. at 1262. "[W]hen an opinion is not more heavily based on a patient's self-reports than on clinical observations, there is no evidentiary basis for rejecting the opinion." Id.; see also Ryan v. Comm'r of Social Sec., 528 F.3d 1194, 1200 (9th Cir. 2008) (finding that substantial evidence did not support the ALJ's conclusion that the medical expert relied on self-reports more heavily than on his own clinical observations). Similar to Ghanim and Ryan, there is no indication in the record that Dr. McClelland relied on Ms. Castilleja's description of her symptoms more heavily than his own clinical observations. The ALJ merely notes that Dr. McClelland's findings "appear[] to be heavily rely upon the claimant's subjective report of her symptoms." Tr. 33. Without a more thorough explanation, the ALJ's finding cannot be sustained as it is not supported by substantial evidence in the record.
2. Inconsistency with Objective Findings
The Court finds that the ALJ did not unreasonably conclude that Dr. McClelland's opinion was "not consistent with the objective findings of the evaluation." ECF No. 9-2 at 34, Tr. 33. Although Ms. Castilleja argues that Dr. McClelland's examination did show abnormal findings, ECF No. 25 at 2, the Court cannot substitute its own opinion for the ALJ's otherwise reasonable interpretation of the evidence. See Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995). As noted by the ALJ, the mental status examination was conducted with generally normal results. ECF No. 9-2 at 34, Tr. 33. Therefore, the Court must defer to the ALJ's conclusion that Dr. McClelland's opined limitations were inconsistent with his evaluation.
3. Inconsistency with Third Party Function Report
Similarly, the Court finds that the ALJ did not unreasonably interpret the third party function report completed by Ms. Castilleja's husband. The ALJ found that the third party function report "did not mention a mental impairment or cite a mental impairment as the reason for the claimant's alleged limitations." Id. As correctly noted by the Magistrate Judge, Ms. Castilleja's husband, while not referencing a particular mental impairment, did report that Ms. Castilleja needed reminders to take her medication, had difficulty keeping track of monthly bills, had trouble handling stress, experienced difficulty handling changes in routine, and had problems completing tasks, concentrating, and with memory. ECF No. 23 at 15 (citing ECF No. 9-6 at 47-52, Tr. 297-302). The Magistrate Judge concluded that "[c]ontrary to the ALJ's conclusion, this report is largely consistent with Dr. McClelland's conclusion." Id.
Where the ALJ had reached a reasonable interpretation of the evidence, it is not the role of the reviewing Court to substitute its own judgment for that of the ALJ. See Andrews, 53 F.3d at 1039-40. The ALJ did not extrapolate from the third party function report that Ms. Castilleja's husband believed no psychological limitations existed; the ALJ merely noted that the lack of a specificity regarding alleged psychological limitations did not support Dr. McClelland's opinion concerning the severity of Ms. Castilleja's psychological limitations. See ECF No. 9-2 at 34, Tr. 33; see also ECF No. 9-10 at 67, Tr. 583 (Dr. McClellan concluded that Ms. Castilleja's GAF score was a 29, indicating moderate to severe impairment in several areas of functioning). As a reviewing court may not second-guess an ALJ's reasonable interpretation of the evidence, see Andrews, 53 F.3d at 1039-40, the Court must defer to the ALJ's conclusion that the third party function report is inconsistent with Dr. McClelland's medical opinion.
4. Inconsistency with Activities of Daily Living
As discussed above, the Court has found that the ALJ reasonably considered Ms. Castilleja's activities of daily living as part of the credibility analysis. Similarly, the ALJ's conclusion that Ms. Castilleja's "wide range of activities suggests that her limitations are not as significant as alleged," ECF No. 9-2 at 35, Tr. 34, was not an unreasonable ground upon which to discredit Dr. McClelland's medical opinion.
5. Consistency with Medical Evidence of Record
Finally, the Magistrate Judge found that the ALJ should have considered the consistency between Drs. McClelland's and Clifford's medical opinions. ECF No. 23 at 16. However, Dr. Clifford reviewed Dr. McClelland's opinion and gave it only "partial weight" as it was "not fully supported by EOR, or findings on exam." ECF No. 9-3 at 10, Tr. 96. Specifically, Dr. Clifford found that Dr. McClelland's opinion "relied heavily on the subjective report of symptoms and limitations provided by the individual, and the totality of the evidence does not support the opinion" as well as that the "opinion is an overestimate of the severity of the individual's restrictions/limitations and based only on a snapshot of the individual's functioning." ECF No. 9-3 at 14, Tr. 100. Further, although the ALJ found that "[n]o treating or examining provider concluded that Plaintiff was capable of performing the mental demands of competitive, remunerative work," ECF No. 23 at 16, Dr. Clifford ultimately concluded that Ms. Castilleja was "[n]ot [d]isabled," ECF No. 9-3 at 16, Tr. 102, and even Dr. McClelland opined that "[t]he claimant should be able to perform work activities on a consistent basis without special or additional instruction." ECF No. 9-10 at 68, Tr. 584. Overall, the Court does not find the Magistrate Judge's argument concerning consistency between Drs. McClelland and Clifford persuasive.
Contrary to the Magistrate Judge's finding, Dr. McClelland's medical opinion was contradicted by Dr. Clifford. See ECF No. 9-3 at 10, Tr. 96. Therefore, the Court must defer to the ALJ's conclusion if the ALJ provided "specific and legitimate reasons that are supported by substantial evidence in the record," see Lester, 81 F.3d at 830-31, for giving Dr. McClelland's medical opinion "little weight." The Court finds that the reasons put forth by the ALJ, as discussed above, are sufficiently "specific and legitimate" and "supported by substantial evidence in the record." As a reviewing court, it is this Court's obligation to defer to reasonable conclusions and interpretations of the record reached by the ALJ, see Andrews 53 F.3d at 1039-40, and not to substitute the Court's own judgment, even where the Court disagrees with the ALJ's conclusion.
6. Harmless Error
As discussed above, the ALJ erred in finding that Dr. McClelland heavily relied upon Ms. Castilleja's self-report of her symptoms. "A decision of the ALJ will not be reversed for errors that are harmless." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). An error is harmless when it is "inconsequential to the ultimate nondisability determination." Stout v. Comm'r, Social Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). Without considering the ALJ's erroneous finding, the ALJ nonetheless gave Dr. McClelland's opinion "little weight" as it was inconsistent with the objective findings of the evaluation, inconsistent with the third party function report, and inconsistent with Ms. Castilleja's activities of daily life. As such, the ALJ's ultimate credibility finding remains supported by sufficiently "specific and legitimate" reasons, and the ALJ's erroneous finding was merely harmless error.
The Court DECLINES TO ADOPT the Report and Recommendation's finding that the ALJ's assessment of Dr. McClelland was not supported by substantial evidence in the record.
D. Dr. Thomas Clifford
The Commissioner argues that the ALJ permissibly gave "little weight" to Dr. Thomas Clifford's medical opinion. ECF No. 24 at 16.
Dr. Clifford opined that Ms. Castilleja had difficulties with concentration, persistence, and pace that would vary episodically, was capable of carrying out basic, familiar detailed tasks at a steady moderate pace, and should not work closely with the general public. ECF No. 9-3 at 13, Tr. 99. Dr. Clifford concluded that Ms. Castilleja was "capable of interacting with others in the pursuit of common interests," "able to adapt to simple variations in routine," and, ultimately, was "[n]ot [d]isabled." ECF No. 9-3 at 13-16, Tr. 99-102. The ALJ gave "little weight" to Dr. Clifford's findings as the ALJ did "not find that the objective medical evidence and the claimant's wide range of activities supports any significant vocational limitations, as a result of the claimant's mental limitations." ECF No. 9-2 at 35, Tr. 34. The Magistrate Judge found that the ALJ's conclusion was not supported by substantial evidence. ECF No. 23 at 18.
As the ALJ gave similar reasons for attributing "little weight" to the medical opinions of both Drs. McClelland and Clifford, the Court need not repeat the analysis conducted above. Similar to Dr. McClelland, the Court finds that the ALJ gave sufficiently "specific and legitimate" reasons supported by "substantial evidence in the record" for giving "little weight" to Dr. Clifford's opinion. See Lester, 81 F.3d at 830-31. The Court rejects the Magistrate Judge's conclusion that Drs. McClelland's and Clifford's opinion are consistent with each other, as the opinions are facially inconsistent due to Dr. Clifford's express rejection of Dr. McClelland's conclusions. The Court DECLINES TO ADOPT the Report and Recommendation's finding that the ALJ's assessment of Dr. Clifford was not supported by substantial evidence in the record.
IV. Step Five Hypothetical
In step five of the sequential process, an ALJ may pose hypothetical questions to a vocational expert in order to determine whether employment opportunities exist in significant numbers in the national economy, given the claimant's residual functional capacity, age, education, and work experience. ECF No. 9-2 at 42, Tr. 41. "[A] hypothetical question should 'set out all of the claimant's impairments.'" Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984) (internal citation omitted). "Unless the record indicates that the ALJ had specific and legitimate reasons for disbelieving a claimant's testimony as to subjective limitations such as pain, those limitations must be included in the hypothetical in order for the vocational expert's testimony to have any evidentiary value." Embrey, 849 F.2d at 423. "If the assumptions in the hypothetical are not supported by the record, the opinion of the vocational expert that claimant has residual working capacity has no evidentiary value." Gallant, 753 F.2d at 1456. Hypotheticals posed to a vocational expert "must be upheld as long as they are supported by substantial evidence." Martinez v. Heckler, 807 F.2d 771, 774 (9th Cir. 1986).
The Magistrate Judge found that, as the ALJ had incorrectly disregarded Drs. McClelland's and Clifford's opinions as well as Ms. Castilleja's testimony, the "vocational expert's opinion has no evidentiary value and cannot be relied upon to sustain the ALJ's decision." ECF No. 23 at 23. As the Court has declined to adopt the Magistrate Judge's findings regarding the ALJ's credibility determination and rejection of medical opinion evidence, the Court has no basis to conclude that the ALJ's hypothetical was not based on assumptions as to Ms. Castilleja's limitations supported by the record. Therefore, the Court DECLINES TO ADOPT the Report and Recommendation's finding that the vocational expert's opinion had no evidentiary value.
V. Remand
The Magistrate Judge, applying the "credit-as-true" rule, found that "remand for calculation of benefits is the appropriate remedy." ECF No. 23 at 24. As discussed above, the Court disagrees with the Magistrate Judge that the ALJ committed any reversible error. Therefore, the Court DECLINES TO ADOPT the Report and Recommendation's recommended disposition that the application of the "credit-as-true" rule is the appropriate remedy.
CONCLUSION
The Court has reviewed and considered the Report and Recommendation, the Commissioner's objections, and Plaintiff's reply. Having reviewed the November 27, 2015, Report and Recommendation de novo, the Report and Recommendation, ECF No. 23, is ADOPTED in part and REJECTED in part as discussed above.
Accordingly, IT IS HEREBY ORDERED:
1. Plaintiff's Motion for Summary Judgment, ECF No. 12, is DENIED.
2. Defendant's Motion for Summary Judgment, ECF No. 20, is GRANTED.
3. The District Court Clerk is directed to enter Judgment dismissing the Complaint and the claims therein with prejudice.
The District Court Clerk is directed to file this Order, enter Judgment as directed above, provide a copy to counsel, and close this case.
DATED this 27th day of January, 2016.
s/ Rosanna Malouf Peterson
ROSANNA MALOUF PETERSON
United States District Judge