IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

ZONDRA LAVONNE STAGGS, 

Plaintiff, 

V. 

CAROLYN W. COLVIN, 

ACTING COMMISSIONER OF SOCIAL 

SECURITY, 

Defendant. 

MCSHANE, Judge: 

Civ. No. 6:15-cv-01060-MC 

OPINION AND ORDER 

Plaintiff Zondra Lavonne Staggs brings this action under 42 U.S.C. § 405(g) to obtain 

judicial review of the final decision of the Commissioner of Social Security denying plaintiffs 

claim for supplemental security income ("SSI"). The Commissioner's decision is affirmed and 

the case is dismissed. 

1 - OPINION AND ORDER 

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PROCEDURAL BACKGROUND 

On December 14, 2011, plaintiff filed an application for SSI alleging disability as of 

January 1, 1988. Tr. 186-90. Her application was denied initially and on reconsideration. Tr. 

104-26. She requested a hearing, and after the hearing the administrative law judge ("ALJ") 

found plaintiff not disabled. Tr. 56-101, 142. Plaintiff filed an appeal on April 9, 2015, and her 

request was denied, making the ALJ' s decision final. Tr. 1-7. Plaintiff appealed to this Court and 

argues the ALJ erred by: 1) failing to provide substantial evidence to show plaintiffs depression 

and attention deficit disorder ("ADHD") were not severe impairments at step two; 2) failing to 

provide a sufficient reason to reject the medical opinion of Dr. Alison Prescott; 3) failing to 

assess plaintiff under Listing 12.05C; and 4) erring at step five by finding plaintiff could perform 

other jobs in the national economy. Pl.'s Br. 4-20. Because the Commissioner's decision was 

based on proper legal standards and was supported by substantial evidence, the Commissioner's 

decision is AFFIRMED. 

STANDARD OF REVIEW 

The reviewing court shall affirm the Commissioner's decision if the decision is based on 

proper legal standards and the legal findings are supported by substantial evidence in the record. 

42 U.S.C. § 405(g); Batson v. Comm 'r for Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 

2004). "Substantial evidence is 'more than a mere scintilla but less than a preponderance; it is 

such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."' 

Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chafer, 108 F.3d 978, 

980 (9th Cir. 1997)). To determine whether substantial evidence exists, we review the 

administrative record as a whole, weighing both the evidence that supports and that which 

detracts from the ALJ's conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989). "If the 

2 - OPINION AND ORDER 

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evidence can reasonably support either affirming or reversing, 'the reviewing court may not 

substitute its judgment' for that of the Commissioner." Gutierrez v. Comm 'r of Soc. Sec. Admin., 

740 F.3d 519, 523 (9th Cir. 2014) (quoting Reddick v. Chafer, 157 F.3d 715, 720-21 (9th Cir. 

1996)). 

DISCUSSION 

The Social Security Administration utilizes a five step sequential evaluation to determine 

whether a claimant is disabled. 20 C.F.R. § 416.920. The initial burden of proofrests upon the 

claimant to meet the first four steps. If the claimant satisfies his burden with respect to the first 

four steps, the burden shifts to the Commissioner for step five. 20 C.F.R. § 416.920. At step five, 

the Commissioner must show that the claimant is capable of making an adjustment to other work 

after considering the claimant's residual functional capacity ("RFC"), age, education, and work 

experience. Id. If the Commissioner fails to meet this burden, then the claimant is disabled. 20 

C.F.R. § 416.920(a)(4)(v). If, however, the Commissioner proves that the claimant is able to 

perform other work existing in significant numbers in the national economy, the claimant is not 

disabled. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). 

At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity 

since December 8, 2011, the application date. Tr. 20. At step two, the ALJ found that Plaintiff 

suffers from the severe impairment of borderline intellectual functioning ("BIF"). Tr. 20-21. At 

step three, the ALJ determined that Plaintiff did not have an impairment or combination of 

impairments that met or medically equaled the severity of one of the listed impairments in 20 

C.F.R part 404, Subpart P, Appendix 1. Tr. 21-23. 

In assessing Plaintiffs RFC, the ALJ concluded that Plaintiff could perform a full range 

of work at all exertional levels, with the following nonexertional limitations: "[Plaintiff] can 

3 - OPINION AND ORDER 

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perform unskilled, repetitive, routine work; can have occasional contact with the public, 

supervisors, and co-workers; will be off-task at work 8% of the time, but is still able to meet 

minimum requirements of the job." Tr. 23-26. At step four, the ALJ determined Plaintiff was 

unable to perform any of her past relevant work. Tr. 26. At step five, the ALJ determined 

Plaintiff was capable of performing the jobs of janitor and laundry worker. Tr. 26-27. Therefore, 

the ALJ concluded Plaintiff was not disabled. Tr. 27. 

I. The ALJ Provided Substantial Evidence to Show Plaintiff's Depression and 

ADHD Were Not Severe Impairments at Step Two 

Plaintiff argues the ALJ failed to provide substantial evidence to show that her depression 

and ADHD were not severe impairments at step two. Pl.'s Br. 9-12. 

At step two, the ALJ considers whether a claimant has a severe medically determinable 

physical or mental impairment, or combination of impairments. 20 C.F.R. § 416.920(a)(4)(ii). 

The step-two inquiry is a de minimus screening device to dispose of groundless claims. Bowen v. 

Yuckert, 482 U.S. 137, 153-54 (1987) (step two inquiry intended to identity claimants whose 

medical impairments are so slight that it is unlikely they would be found disabled). A claimant's 

impairment or combination of impairments is not severe if it does not significantly limit his or 

her physical or mental ability to do basic work activities. 20 C.F.R. §§ 416.920(c), 416.921. 

Basic work activities are 

the abilities and aptitudes necessary to do most jobs. Examples of these include-

(1) Physical functions such as walking, standing, sitting, lifting, pushing, pulling, 

reaching, carrying, or handling; 

(2) Capacities for seeing, hearing, and speaking; 

(3) Understanding, carrying out, and remembering simple instructions; 

(4) Use of judgment; 

(5) Responding appropriately to supervision, co-workers and usual work 

situations; and 

( 6) Dealing with changes in a routine work setting. 

4 - OPINION AND ORDER 

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20 C.F.R. § 416.921(b). An impairment is not severe if it is merely "a slight abnormality (or 

combination of slight abnormalities) that has no more than a minimal effect on the ability to do 

basic work activities." Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (citing SSR 96-3(p) 

(1996)). 

Here, the ALJ found plaintiffs depression and ADHD at step two were "non-severe 

impairments," noting that the record did not support a finding they were severe. Tr. 20, 25. The 

ALJ gave "significant weight" to Dr. Michael J. Dennis and Dr. Bill Hennings' findings that 

plaintiff is not mentally disabled, finding their reports were "consistent with the longitudinal 

record and [plaintiffs] daily activities." Tr. 25, 104-26. The ALJ also noted that plaintiff worked 

as a cashier for many years at Dari Mart despite her depression and ADHD. Tr. 24. Additionally, 

the ALJ found plaintiff sought no medical treatment for her allegedly debilitating mental 

impairments and according to Dr. Alison Prescott, "show[ ed] a fair range" of activities of daily 

living including running errands independently, fixing simple foods, and having a driver's 

license. Tr. 24-25, 104-26, 262, 272. 

Indeed, an independent review of the record shows plaintiff worked at Dari Mart for 

three years despite her alleged severe mental impairments of depression and ADHD, and was 

ultimately terminated for reasons unrelated to her mental impairments. 1 Tr. 66-67, 193-95. 

Plaintiff also reported her ability to travel using public transportation, walking or biking, could 

cook simple meals, and could shop independently, although she preferred going with her mother. 

Tr. 96, 214, 262, 272. Additionally, both Dr. Dennis and Dr. Hennings opined that plaintiff was 

not significantly limited in her ability to understand and remember very short and simple 

1 Despite plaintiffs statement that she believed she was terminated because she was "slow," she 

testified and told Dr. Prescott that she was terminated from this position after having an angry 

outburst when she was accused of stealing money. Tr. 66-67, 205, 258, 268. 

5 - OPINION AND ORDER 

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instructions. Tr. 111, 123 .Further, the record shows plaintiff sought no additional medical 

treatment for her alleged mental impairments, even testifying that she only recently began 

seeking treatment for her depression and ADHD because lawyers told her that "the Judge needs 

this." Tr. 73, see also Tr. 51. (A February 19, 2014 medical record from the Center for Family 

Development, where medical assistant Nicole Miller noted "[plaintiff] is seeking counseling to 

help her case for disability, she was recently denied.") 

In sum, the ALJ provided substantial evidence to show that plaintiffs ADHD and 

depression were not severe impairments at step two, and therefore I find no error. Additionally, 

any alleged error is harmless because the ALJ found plaintiffs BIF was severe at step two and 

continued with the sequential evaluation. Tr. 20-27, see Stout v. Comm 'r Soc. Sec. Admin., 454 

F.3d 1050, 1055 (9th Cir. 2006) (an ALJ's mistake is harmless where it is nonprejudicial to the 

claimant). 

II. The ALJ Provided a Sufficient Reason to Reject the Medical Opinion of Dr. 

Alison Prescott 

Next, plaintiff argues the ALJ failed to give a sufficient reason to reject the medical 

opinion of examining physician, Dr. Alison Prescott. Pl.' s Br. 4-9. 

An ALJ may reject the uncontradicted medical opinion of a treating or examining 

physician only for "clear and convincing" reasons supported by substantial evidence in the 

record. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citing Lester v. Chafer, 81 F.3d 

821, 830-31 (9th Cir. 1995)). An ALJ may reject the contradicted opinion of a treating or 

examining doctor by providing "specific and legitimate reasons that are supported by substantial 

evidence." Id. 

Here, the ALJ gave "some weight" to her opinion that plaintiff has BIF and "lesser 

weight" to Dr. Prescott's opinion that plaintiffs depression and ADHD "may be severe 

6 - OPINION AND ORDER 

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impairments," finding it was "not supported by the record." Tr. 25. In making this finding the 

ALJ noted that Dr. Prescott found that plaintiff "shows a fair range" of activities of daily living, 

including running errands independently, having a driver's license, and fixing simple foods. Tr. 

25. 

Overall, I find the ALJ did not reject Dr. Prescott's opinion in its entirety, but only gave 

lesser weight to her opinion that plaintiffs depression and ADHD were severe impairments. Tr. 

25. I find no error in the ALJ's finding. As discussed above, the record shows plaintiff has 

symptoms of depression and ADHD, yet she was able to maintain her ability to work, run 

errands independently, and care for herself. See, e.g., Tr. 33-55, 66-67, 86-89, 211-18, 258-62, 

272. Indeed, plaintiff worked at Dari Mart for three years and was ultimately terminated for 

reasons unrelated to her mental impairments. Tr. Tr. 66-67, 193-95. Additionally, in 2012 

plaintiff reported to Dr. Prescott that she could take the bus independently, run errands, and can 

prepare simple food, and wrote in a functional report that she could travel alone by walking, 

biking, or taking public transportation, visited her boyfriend daily, and shopped twice a month. 

Tr. 212-14, 259, 262. Finally, Dr. Prescott's reports concerning plaintiffs depression and ADHD 

were based on plaintiffs subjective reports, which the ALJ found not entirely credible, and 

neither party challenged this determination. 

In sum, the ALJ reasonably provided a clear and convincing reason to discredit the 

portion of Dr. Prescott's medical opinion that plaintiffs depression and ADHD were severe 

impairments. Therefore, I find no error. 

III. The ALJ Did Not Err by Failing To Assess Plaintiff Under Listing 12.0SC 

Next, plaintiff argues the ALJ erred by failing to evaluate and find her disabled under 

Listing 12.05 Intellectual Disability at step three of his analysis. Pl.'s Br. 12-17. Specifically, 

7 - OPINION AND ORDER 

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plaintiff argues that the ALJ' s finding that she suffered from the severe impairment of BIF 

required him to evaluate plaintiff under listing 12.05. Pl.'s Br. 12-13. 

Step three requires the ALJ to consider the severity of the claimant's impairment, by 

comparing the impairment to those listed in Appendix I of the Regulations, ("the Listings"). 20 

C.F.R. Part 404, Subpt. P, App. I. To meet a Listing, the claimant's impairment must satisfy all 

of the components of the Listing. 20 C.F.R. § 416.925(d). The plaintiff has the burden of 

proving that he has an impairment that meets or equals a Listing. Burch v. Barnhart, 400 F .3d 

676, 683 (9th Cir. 2005). If the claimant's impairment meets or equals a listed impairment, he 

will be found disabled at step three. 

Here, the ALJ evaluated plaintiffs mental impairments and found "claimant's mental 

impairments, considered singly and in combination, do not meet or medically equal the criteria 

oflistings 12.02, 12.03, 12.04, 12.06, and 12.09," relating to Organic Mental Disorders, 

Schizophrenic, Paranoid and Other Psychotic Disorders, Affective Disorders, Anxiety Related 

Disorders, and Substance Addiction Disorders, respectively. Tr. 21-23. In making this finding, 

the ALJ evaluated the "paragraph B" and "paragraph C" criteria and found neither the 

"paragraph B" or "paragraph C" criteria were satisfied. Id. The ALJ did not discuss Listing 

12.05C in his step three findings. Therefore, the issue is whether the record supports remand for 

consideration of disability under Listing 12.05C. 

The structure of Listing 12.05 for intellectual disability is different from the other mental 

disorders listings, and therefore requires a different analysis. 20 C.F.R. Pt. 404, Subpt. P, App. 

1, §12.00(A). "Listing 12.05 contains an introductory paragraph with the diagnostic description 

for intellectual disability," and "four sets of criteria (paragraphs A through D)." Id. If an 

impairment "satisfies the diagnostic description in the introductory paragraph and any one of the 

8 - OPINION AND ORDER 

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four sets of criteria," the impairment meets the listing. Id In order to meet Listing 12.05C 

plaintiff must show, "(1) subaverage intellectual functioning with deficits in adaptive functioning 

initially manifested before age 22; (2) a valid IQ score of 60 to 70; and (3) a physical or other 

mental impairment imposing an additional and significant work-related limitation." Kennedy v. 

Colvin, 738 F.3d 1172, 1174 (9th Cir. 2013) (citing 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 

12.05(C)). 

1. Valid IQ Score 

Listing 12.05C requires plaintiff to establish that she has "a valid verbal, performance, or full 

scale IQ of 60 through 70." 20 C.F.R. Pt. 404, Subpt. P, App. 1 §12.05(C). "Where more than 

one IQ is customarily derived from the test administered, e.g., where verbal, performance, and 

full scale IQs are provided in the Wechsler series, we use the lowest of these in conjunction with 

12.05." 20 C.F.R. Pt. 404, Subpt. P, App. 1, §12.00(D)(6)(c). 

The ALJ noted only plaintiffs IQ score of 74 which was obtained by Dr. Prescott in 

March 2012, but did not acknowledge plaintiffs verbal comprehension score of 70. Tr. 261. The 

Commissioner concedes that the ALJ failed to consider plaintiffs verbal comprehension score of 

70, but argues it is harmless because plaintiff failed to satisfy the diagnostic definition in the 

introductory paragraph of Listing 12.05. Def.'s Br. 12-13. An ALJ's error is harmless where it is 

"inconsequential to the ultimate nondisability determination." Stout v. Comm 'r, Soc. Sec. 

Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). 

Here, the ALJ failed to reference Listing 12.05C, and therefore it is unclear whether his 

analysis of Dr. Prescott's findings purposefully omitted discussion of plaintiffs verbal 

comprehension score. See Thresher v. Astrue, 283 F. App'x. 473, 475 (9th Cir. 2008) (an ALJ 

may reject a claimant's IQ score if it is not valid). This ambiguity arguably would be grounds for 

9 - OPINION AND ORDER 

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remand as plaintiffs 2012 IQ score met the first prong of 12.05C. See Orosco v. Colvin, 2016 

WL 1584151, at *5 (D. Or. Apr. 18, 2016); Gomez v. Astrue, 695 F. Supp. 2d 1049, 1056 (C.D. 

Cal. 2010) (where "silent disregard of the verbal IQ score" was an error and grounds for 

remand). 

2. Onset Before Age 22 (The Diagnostic Definition) 

The introductory paragraph of Listing 12.05 requires plaintiff to show she has 

"significantly subaverage general intellectual functioning with deficits in adaptive functioning 

manifested during the developmental period; i.e., the evidence demonstrates or supports onset of 

the impairment before age 22." 20 C.F.R. Pt. 404, Subpt. P, App. 1, §12.05. Adaptive 

functioning has been described as a "person's effectiveness in areas such as social skills, 

communication, and daily living skills, and how well the person meets the standards of personal 

independence and social responsibility expected of his or her age by his or her cultural group." 

Heller v. Doe, 509 U.S. 312, 328 (1993) (citing Manual of Mental Disorders 28-29). "A 

claimant may use circumstantial evidence to demonstrate adaptive functioning deficits that 

existed prior to age 22, such as 'attendance in special education classes, dropping out of high 

school prior to graduation, difficulties in reading, writing or math, and low skilled work 

history."' Glenn v. Colvin, 2013 WL 3046871, at *3 (D. Or. June 11, 2013) (citing Pedro v. 

Astrue, 849 F. Supp. 2d 1006, 1011 (D. Or. 2011)); see also Campbell v. Astrue, 2011 WL 

444783, at *17 (E.D. Cal. Feb. 8, 2011). 

Plaintiff argues there is evidence in the record to satisfy the introductory paragraph of 

Listing 12.05C, citing Dr. Prescott's reports that she was enrolled in special education classes, 

had difficulties with reading and math, and that she was found learning disabled by social 

security as a child. PL' s Br. 14, Tr. 257-62, 267-72. I find the evidence is insufficient for plaintiff 

10 - OPINION AND ORDER 

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to satisfy the introductory paragraph of Listing 12.05C. Granted, plaintiff cites evidence that she 

was enrolled in special education classes and was found learning disabled as a child, but the 

information in Dr. Prescott's reports were based entirely on plaintiffs subjective reports. The 

ALJ found plaintiff not entirely credible and neither party challenged this determination. Plaintiff 

provides no additional evidence, other than her own testimony, that she was enrolled in special 

education classes. Further, an independent review of the record shows plaintiff reported in her 

application for SSI that she was not disabled prior to age twenty-two and testified to graduating 

with a regular diploma. Tr. 82, 186, 257. 

Additionally, plaintiffs work history contradicts her claims that she had adaptive 

functioning deficits prior to age 22. Plaintiff testified to losing her disability funding before the 

age of eighteen after becoming employed. Tr. 90. Plaintiff also testified to working as a janitor at 

a mall, at various fast food restaurants, and at a gas station mini-mart and lost these jobs for 

reasons unrelated to her mental impairments. Tr. 66-67, 86-89. Although plaintiff testified that 

she was "slow" at her jobs and constantly made mistakes, she testified that she either left jobs or 

was fired because of accusations of stealing money, having angry outbursts, and being bisexual, 

not her mental limitations. Tr. 85-89. Therefore, I find plaintiffs work history is insufficient to 

show plaintiff had adaptive functioning deficits prior to age 22. 

Finally, plaintiff cites no medical evidence of record to show she had any mental health 

treatment related to her alleged mental health disability. Although plaintiff testified to hearing 

music in her head for the last fifteen years and assuming personalities, the ALJ reasonably found 

plaintiffs allegations were "not supported by the preponderant evidence" given there was "no 

indication that despite these allegations the claimant has sought psychiatric medical care of any 

kind for her alleged impairments, and/or taken steps to improve her mental health." Tr. 25. 

11 - OPINION AND ORDER 

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Indeed, a February 2014 medical report noted that plaintiff was "seeking counseling to help her 

case for disability," and plaintiff testified that she had not mentioned the voices to Dr. Prescott 

until her second meeting with her because she "didn't really think about it." Tr. 81. For the above 

reasons, I find insufficient evidence to satisfy the introductory paragraph of Listing 12.05C. 

Therefore, the ALJ did not err in failing to evaluate plaintiff under Listing 12.05C. 

IV. The ALJ's Step Five Findings are Supported by Substantial Evidence in the 

Record 

Finally, plaintiff argues the ALJ erred at step five by finding she could work other jobs in 

the national economy. Pl.'s Br. 17-20. Essentially, plaintiff argues: (1) the ALJ failed to explain 

the inconsistency between the VE's testimony and the Dictionary of Occupational Titles 

("DOT"), (2) the ALJ failed to incorporate plaintiffs functional limitations in her RFC, and (3) 

the VE's hypothetical was not supported by substantial evidence in the record. Id. 

At step five, the burden of proof shifts to the Commissioner to demonstrate that the 

claimant can engage in some type of substantial gainful activity that exists in "significant 

numbers" in the national economy. Yuckert, 482 U.S. at 141-42. The step five analysis requires 

assessment of the medical evidence, the claimant's daily activities, prior work record, functional 

restrictions and limitations, medication and other treatment for relief of symptoms, and evidence 

from physicians and third parties. 20 C.F.R. § 416.929. Typically, the ALJ propounds a 

hypothetical question to the VE that is based on medical assumptions supported by the record 

and reflects all of the claimant's limitations. Osenbrock v. Apfel, 240 F.3d 1157, 1163 (9th Cir. 

2001 ). If the claimant fails to present evidence that she suffers from certain limitations, the ALJ 

need not include those alleged impairments in the hypothetical question to the VE. Id. 

First, plaintiff argues the ALJ did not explain the conflict between the DOT and the jobs 

identified by the VE. Pl.'s Br. 17-18. Specifically, that the two jobs identified by the VE, of 

12 - OPINION AND ORDER 

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laundry worker and janitor, require a math level of one, which plaintiff argues she does not 

possess based on the reports of Dr. Prescott, who found plaintiff could not "compute simple math 

operations." Pl.' s Br. 17-18. However, the Commissioner argues there was no conflict between 

the DOT and the VE's testimony. Def.'s Br. 16-18. 

When a VE provides information about the requirements of an occupation, the ALJ has 

an affirmative duty to determine whether the information conflicts with the DOT and to obtain 

an explanation for the apparent conflict. Massachi v. Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 

2007). The ALJ must resolve the conflict, and make findings about how the conflict was 

resolved, before relying on the testimony to find that a claimant is not disabled. SSR 00-4p, 2000 

WL 1898704 (S.S.A.). The ALJ may rely on testimony from the VE that contradicts the DOT, 

but only if the record contains persuasive evidence to support the deviation. Johnson v. Shalala, 

60 F .3d 1428, 1436 (9th Cir. 1995). However, if is no conflict, failing to inquire about conflicts 

is harmless. Massachi, 486 F .3d at 1154 n.19 (9th Cir. 2007). 

Here, there is no conflict between the DOT and the VE's testimony. The jobs identified 

by the VE of laundry worker and janitor have a math level one requirement. Tr. 27. Under the 

DOT math level one requires a claimant to possess the following skills: 

Add and subtract two-digit numbers. Multiply and divide lO's and lOO's by 

2,3,4,5. Perform the four basic arithmetic operations with coins as part of a dollar. 

Perform operations with units such as cup, pint, and quart; inch, foot, and yard; 

and ounce and pound." 

DOT App. C., §III. 

The hypothetical propounded to the VE did not contain any limitations regarding 

plaintiffs math skills. Because there was no conflict between the DOT and the VE's testimony 

there was no need for the ALJ to inquire with the VE about whether his testimony was consistent 

with the DOT. Therefore, there is no error. 

13 - OPINION AND ORDER 

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Before addressing the next part of plaintiffs step five argument I will address the 

argument plaintiff essentially attempts to make with respect to the VE"s testimony. Here, 

plaintiff essentially argues that her RFC did not include all of her functional limitations, 

specifically, her limitations related to her math skills. Pl.' s Br. 17-18. 

The RFC is the maximum a claimant can do despite her limitations. See 20 C.F .R. § 

416. 945. In determining the RFC, the ALJ must consider limitations imposed by all of a 

claimant's impairments, even those that are not severe, and evaluate "all of the relevant medical 

and other evidence," including the claimant's testimony. SSR 96-8p. The ALJ is responsible for 

resolving conflicts in the medical testimony and translating the claimant's impairments into 

concrete functional limitations in the RFC. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 

(9th Cir. 2008). Only limitations supported by substantial evidence must be incorporated into the 

RFC and, by extension, the dispositive hypothetical question posed to the VE. Osenbrock, 240 

F .3d at 1163-65 (9th Cir. 2001 ). 

When determining plaintiffs RFC the ALJ noted that plaintiff reported she could pay 

bills, count change, handle a savings account, and uses a checkbook/money orders. Tr. 22, 215. 

The ALJ also found plaintiff was able to slowly add a two-digit addition problem according to 

Dr. Prescott. Tr. 24, 260. Despite the ALJ's findings, an independent review of the record shows 

conflicting evidence with respect to plaintiffs math abilities. Plaintiff testified that she had a 

checking account but never managed it, stating that it was "always ... overdrawn," yet reported 

in a 2012 function report that she "never had problems with [numbers]" and could pay bills, 

count change, handle a savings account, and use a checkbook. Tr. 215. Additionally Dr. Prescott 

reported plaintiff "could not compute simple math operations" yet found she could "slowly add a 

2 digit addition problem." Tr. 260. 

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Although there is conflicting evidence in the record with respect to plaintiffs ability to 

manage her finances and work with numbers, the ALJ reasonably resolved those conflicts when 

assessing plaintiffs RFC. Tr. 23-26. Specifically, the ALJ determined plaintiff not entirely 

credible, which neither party challenged. The ALJ also reasonably discredited Dr. Prescott, 

whose reports were largely based on plaintiffs subjective testimony. See Batson, 359 F.3d at 

1198 (9th Cir. 2004) (if more than one rational interpretation of the evidence exists the court 

must defer to the ALJ's findings). Accordingly, I find no error in the ALJ's RFC assessment, and 

therefore no error in the ALJ' s hypothetical propounded to the VE. 

Finally, plaintiff argues the ALJ's hypothetical proposed to the VE was not based on 

substantial evidence. PL' s Br. 19-20. Plaintiff argues that the RFC limitation of being off-task at 

work eight percent of the time is equivalent to taking an extra five-minute break per hour, which 

the VE testified would not be tolerated by employers. Id., Tr. 98. Therefore, plaintiff argues the 

ALJ's step five finding that she could perform work that existed in the national economy is not 

supported by substantial evidence. Pl.'s Br. 20. 

I disagree. When evaluating plaintiffs RFC the ALJ determined she "will be off-task at 

work 8% of the time, but is still able to meet minimum production requirements of the job." Tr. 

23. The ALJ posed this limitation, along with plaintiffs remaining functional limitations in her 

RFC, to the VE who testified that jobs existed in the national economy for someone with those 

functional limitations. Tr. 97-98. Only after plaintiffs counsel posed a hypothetical equating 

being off-task at work eight percent of the time to an additional five-minute break per hour did 

the VE testify, "I think that alone would have her get fired from the job, regardless of her 

production." Tr. 98. Plaintiff cites no evidence, nor is there is anything in the record to indicate 

being off-task eight percent of the time at work is equal to an extra five-minute break per hour. 

15 - OPINION AND ORDER 

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See Martinez v. Heckler, 807 F.2d 771, 773 (an ALJ need not accept hypothetical questions 

propounded by plaintiffs counsel that are more restrictive than those posed by the ALJ). Since 

plaintiffs counsel posed a hypothetical with restrictions beyond those cited by the ALJ, the ALJ 

was not required to accept that hypothetical and its conclusions. Therefore, I find no error. 

CONCLUSION 

For the reasons above, the Commissioner's decision is affirmed and the case is dismissed. 

IT IS SO ORDERED. 

DATED this /~ day of September, 2016. 

16 - OPINION AND ORDER 

L---

Michael McShane 

United States District Judge 

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