Rachel Avila v. Jo Anne B Barnhart

Case 2:05-cv-07024-FFM Document 25 Filed 11/21/06 Page 1 of 7 Page ID #:81 1 O 2 3 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFO...

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Case 2:05-cv-07024-FFM Document 25 Filed 11/21/06 Page 1 of 7 Page ID #:81

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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RACHEL AVILA, Plaintiff,

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v. JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.

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No. CV 05-7024 FFM MEMORANDUM OPINION; ORDER THEREON

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Plaintiff filed a complaint on September 27, 2005, seeking review of the

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Commissioner’s denial of plaintiff’s application for supplemental security income

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payments. In accordance with the Court’s Case Management Order, the parties filed a

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Joint Stipulation on July 6, 2006. Thus, this matter is now ready for decision.

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This memorandum opinion shall constitute the Court’s findings of fact and conclusions of law.

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PROCEDURAL HISTORY Plaintiff was, at the time of the decision, a forty-three year old individual with a

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twelfth grade education and past relevant work as a receptionist and a supervisor of a

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labor gang. (AR 51, 56, 61, 68, 436-37). She protectively filed her application for

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benefits on June 24, 2002 (AR 25, 51-53), alleging inability to work because of three

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herniated discs in her neck and back and arthritis in her shoulders. She stated that she

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was unable to sit, stand or walk for periods at a time and that she was unable to lift

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more than five pounds (AR 55).

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After her claim was denied initially and upon reconsideration, she requested a

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hearing before an Administrative Law Judge (the “ALJ”). A hearing was noticed for

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December 3, 2003. (AR 30, 435). Plaintiff’s counsel was present, but Plaintiff was

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not.1 (AR 435). Vocational expert testimony was taken. (AR 435-39). On April 27,

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2004, the ALJ issued a decision denying benefits, finding that Plaintiff was not

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precluded from returning to her past relevant work as a receptionist. (AR 25-29).

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Plaintiff’s request for Appeals Council review was denied, and the decision of the ALJ

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became the final decision of the Commissioner. (AR 10-13).

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DISPUTED ISSUES

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As reflected in the Joint Stipulation, the disputed issues that Plaintiff is raising

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as the grounds for reversal and or remand are as follows: 1)

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Whether the ALJ properly evaluated Plaintiff’s subjective pain complaints;

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Whether the ALJ erred in evaluating Plaintiff’s severe impairments;

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3)

Whether the ALJ’s assessment of residual functional capacity is based upon substantial evidence;

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4)

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Whether the ALJ erred in finding that Plaintiff could return to her past relevant work.

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Plaintiff raises no issue concerning the propriety of proceeding to hearing without

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her. 2

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STANDARD OF REVIEW

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Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to

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determine whether the Commissioner’s findings are supported by substantial evidence

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and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d

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841, 846 (9th Cir. 1991). Substantial evidence means “more than a mere scintilla” but

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less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420,

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28 L. Ed. 2d 842 (1971); Desrosiers v. Secretary of Health & Human Servs., 846 F.2d

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573, 575-76 (9th Cir. 1988). Substantial evidence is “such relevant evidence as a

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reasonable mind might accept as adequate to support a conclusion.” Richardson, 402

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U.S. at 401. This Court must review the record as a whole and consider adverse as

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well as supporting evidence. Green v. Heckler, 803 F.2d 528, 929-30 (9th Cir. 1986).

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Where evidence is susceptible to more than one rational interpretation, the

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Commissioner’s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452

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(9th Cir. 1984).

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DISCUSSION

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As noted herein, Plaintiff was not at the hearing. (AR 435). Following

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examination of the vocational expert by the ALJ, Plaintiff’s counsel attempted to

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question the vocational expert concerning “ongoing pain to the extent that it interferes

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with [Plaintiff’s] ability to concentrate.” However, when the ALJ asked for a specific

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reference in the record to support this hypothetical, Plaintiff’s counsel could provide

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none “without her here to talk about it.” Accordingly, the ALJ held the record open to

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allow counsel “to submit something from [Plaintiff] relative to this issue that [the ALJ]

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could then give to the vocational expert in the form of an interrogatory. . . .” (AR

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440).

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Plaintiff submitted a letter in which she wrote that she suffers from daily pain in

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her hand, neck, shoulder, arms, back, hip, knee, and right ankle. (She noted that

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simply writing the letter caused her pain in her elbow and in her shoulder.) The pain is 3

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so debilitating that she must rely upon her children to do the washing, cooking and

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cleaning. She cannot stand or sit more than ten minutes. She also wrote that she

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suffers from stress that has diminished her appetite, causing her to lose weight. She

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gets flustered very easily, cannot think, and cries for no reason. She wrote that she was

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crying from the pain and that she had to have her children help her “even drink a glass

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of water.” (AR 427-28).

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Relying in great part on this letter, Plaintiff charges that the ALJ failed to

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consider her pain complaints (Issue One). In response to the ALJ’s finding that

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Plaintiff was not credible, Plaintiff contends that because she has medically

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determinable impairments that may reasonably account for some pain, the ALJ should

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have credited all of her assertions. According to Plaintiff, by failing to credit

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Plaintiff’s pain contentions, the ALJ improperly assessed Plaintiff’s residual functional

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capacity (“RFC”). The ALJ’s hypothetical question to the vocational expert, based on

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the flawed RFC, was therefore also flawed. Thus, Plaintiff concludes that the finding

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that Plaintiff could return to her past relevant work as a receptionist was erroneous.

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Inasmuch as there are medically determinable impairments that may reasonably

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account for some pain, although not necessarily to the degree alleged, absent evidence

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of malingering, the ALJ must provide clear and convincing reasons for rejecting

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Plaintiff’s symptom allegations. Batson v. Commissioner of the Social Security

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Administration, 359 F.3d 1190, 1196 (9th Cir. 2004).

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Here, however, the ALJ provided clear and convincing reasons in citing the lack

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of objective findings to support the degree of limitations alleged (AR 26). The ALJ

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relied on the opinions of the various treating and examining physicians, none of whom

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found the severe restrictions claimed. (AR 26-27; see 91, 229, 258). Bunnell v.

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Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (the lack of objective findings is one factor

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to be considered in assessing credibility); Thomas v. Barnhart, 278 F.3d 947, 958-59

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(9th Cir. 2002) (“The ALJ may consider . . . testimony from physicians and third

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parties concerning the nature, severity, and effect of the symptoms of which [claimant] 4

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complains.") (internal quotation marks and citation omitted). The ALJ further inferred

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that Plaintiff exaggerated her symptoms, citing the observations of poor examination

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effort noted by the consultative examiner, Dr. Frederick Davis. (AR 27). Tonapetyan

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v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) (poor effort during the consultative

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examination was a valid consideration in assessing credibility); Sample v. Schweiker,

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694 F.2d 639, 642 (9th Cir. 1982) (ALJ may draw logical inferences from the

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evidence, and even if the evidence is susceptible to more than one rational

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interpretation, it is the ALJ’s which must be upheld). Indeed, the absence of

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debilitating prior complaints despite multiple visits to multiple physicians also casts

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doubt on plaintiff’s assertions. (AR 439-40). Finally, the ALJ noted that Plaintiff

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reported to her first treating physician, Dr. Frank Kanovsky, that she had not returned

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to work when released to do so, not because of any disability, but because her father

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was ill and she looked after him with her sister. (AR 26-27; AR 90, 94). Plaintiff also

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reported that her place of employment had closed. (AR 27, 94; see also AR 224;

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compare AR 345). See Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001).

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Plaintiff, on the other hand, argues that if the ALJ had concerns concerning her

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statement, he should have held a supplemental hearing to allow her to explain her

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comments. (JS 16, 22). However, the ALJ was not required to do so. See

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Tonapetyan, 242 F.3d at 1148 (The ALJ was not required to give claimant a chance to

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explain her inconsistent statements at the hearing inasmuch as substantial evidence

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supported the ALJ’s credibility finding even if some of the inconsistencies had

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innocent explanations.).

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Plaintiff also argues that the ALJ failed to consider Plaintiff’s complaints of

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numbness and tingling in her arms which cause her to “drop[] things and [have]

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difficulty holding objects, such as a pen.” (Joint Stipulation (“JS”) 16). Plaintiff

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contends that the ALJ should have found the asserted numbness in upper extremities to

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be a severe impairment. (Issue No. Two). Plaintiff cites the impingement syndrome in

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her shoulders as medical evidence supporting her allegations of “numbness in her 5

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upper extremities.” She points to two references to complaints of numbness and

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tingling reported by Dr. Vincent Gumbs, Plaintiff’s treating physician, and Dr. Gil

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Tepper. Plaintiff also cites a fifty per cent reduction in right grip strength noted by Dr.

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Gumbs as supporting her claims. (Joint Stipulation (“JS”) 16; AR 345-46, 369).

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Despite the two references to bilateral numbness and tingling cited by Plaintiff,

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and abnormal electrodiagnostic studies notwithstanding, the record as a whole fails to

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support any claim that these complaints are ongoing or so significant as to result in any

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permanent limitations. (See, e.g., AR 249-50, 258, 268, 279, 293, 315, 329). Even on

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those occasions when she voiced such complaints, both Dr. Gumbs and Dr. Tepper

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found that sensation was intact in the upper extremities to light touch and pinprick.

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(AR 349, 371). Grip, although reduced on the right, was, nevertheless, 35/35/35. On

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the left, it was 52/60/62. (AR 252). Moreover, except for her post-hearing letter,

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Plaintiff has failed to cite any other reference, even to subjective complaints, that she is

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unable to hold onto small objects such as a glass or a pen. No such complaint, for

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example, is alleged in her Disability Report (AR 55), nor are such complaints reported

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by Drs. Gumbs or Tepper. (AR 345-46, 369).

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Thus, there was no error in the ALJ’s failure to consider Plaintiff’s complaints

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of numbness and tingling in the upper extremities as resulting in any work-related

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restrictions other than as already found.

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Plaintiff also asserts that the ALJ’s RFC finding erroneously failed to take

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Plaintiff’s pain allegations into account. (Issue No. Three). However, because the

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ALJ provided clear and convincing reasons to reject Plaintiff’s symptom allegations,

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there was no error in the ALJ’s assessment of RFC.

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Finally, Plaintiff contends that the ALJ should have submitted an interrogatory

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to the vocational expert that contained Plaintiff’s pain limitations. However, the ALJ

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properly found such limitations not to be credible. Because substantial evidence

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supports the ALJ’s credibility finding, the ALJ did not fail to fully and fairly develop

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the record by not proffering interrogatories to the vocational expert concerning such 6

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limitations. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (There was no

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error in the ALJ’s hypothetical to the vocational expert in omitting limitations claimed

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but not proven.); Nelson v. Apfel, 131 F.3d 1228, 1236 n.4 (7th Cir. 1997) (The ALJ is

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not required to perform a useless act.).

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CONCLUSION

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For the reasons set forth above, this Court finds that the Commissioner’s

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decision is supported by substantial evidence and is free of material legal error.

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Therefore, the decision of the Commissioner is AFFIRMED.

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IT IS SO ORDERED.

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DATED:

November 21, 2006

______________________________ FREDERICK F. MUMM United States Magistrate Judge

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