INTHE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MICHELLE MARIE SCHREINER, 

Plaintiff, 

v. 

CAROLYN W. COL VIN, Acting 

Commissioner of Social Security, 

Defendant. 

JONES, J., 

PORTLAND DIVISION 

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3: lS~CV-00607-JO 

OPINION AND ORDER 

Plaintiff Michelle Schreiner ("Schreiner") appeals the Commissioner's decision denying her 

application for disability insurance benefits under Title II of the Social Security Act. The court has 

jurisdiction under 42 U.S.C. § 405(g). I affom the Commissioner's decision. 

PRIOR PROCEEDINGS 

Schreiner filed a Disability Benefits application under Title II, alleging disability beginning 

March 15, 2008, due to diabetes, hype1iension, and mental impahments. Admin. R. 20-21. The ALJ 

applied the five-step analysis outlined in the regulations to dete1mine whether Scln·einer was 

disabled. Admin. R. 18-19. Scln·einer was diagnosed with diabetes mellitus type 1 at age 10, and 

subsequently received diagnoses for hypertension, and cognitive disorder not otherwise specified. 

Admin. R. 20. The ALJ found her hype1iension was well-controlled and did not adversely affect 

her ability to perfo1m basic work activities. Adm in. R. 20. He found that her diabetes and cognitive 

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Case 3:15-cv-00607-JO Document 25 Filed 07/01/16 Page 1 of 16
disorder constituted severe impaiiments that limited her ability to perfo1m basic work activities. 

Admin. R. 32. The ALJ then dete1mined that, despite her impairments, Schreiner possessed the 

residual. functional capacity ("RFC") to do a range of light work in routine and predictable 

environments where she could avoid even moderate exposure to work with machinery or moving 

parts. Admin. R. 23. According to the RFC, Shreiner could stand or walk for six of eight hours in 

a workday with normal breaks, and would be limited to frequent, not constant, handling with her 

nondominant hand. Admin. R. 23. At step 4 of his analysis, the ALJ found these restrictions made 

her unable to perfo1m past relevant work. Admin. R. 31. A vocational expert ("VE") testified that 

Schreiner would be able to perfo1m the job requirements oflight and sedentary occupations such as 

a cashier, a small product assembler, and medical billing employee, which together represent more 

than a million jobs in the national economy. Admin. R. 32. Thus, the ALJ concluded that Schreiner 

was not disabled within the meaning of the Social Security Act. Admin. R. 32. 

ST AND ARD OF REVIEW 

The district comt must affirm the Commissioner's decision if it is based on proper legal 

standards and the findings of fact are supported by substantial evidence in the record as a whole. 42 

U.S.C. § 405(g); Batson v. Comm 'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). 

Under this standard, the Commissioner's factual findings must be upheld if supp01ied by inferences 

reasonably drawn from the record even if evidence exists to suppo1i another rational interpretation. 

Batson, 359 F.3d at 1193; Andrews v. Shala/a, 53 F.3d 1035, 1039-40 (9th Cir. 1995). 

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Case 3:15-cv-00607-JO Document 25 Filed 07/01/16 Page 2 of 16
DISCUSSION 

I. Claims of Error 

The claimant bears the burden of showing that the ALJ erred and that any error was harmful. 

lvfcLeodv. Astrue, 640 F.3d 881, 886-87 (9th Cir. 2011). Schreiner claims that the ALJ ened in four 

ways. First, Schreiner claims the ALJ wrongfully found her not fully credible regarding the severity 

and functional impact of her impaiiments. Second, she contends the ALJ improperly discounted the 

opinions of Dr. Anne M. Weinsoft, M.D. and Cheryl S. Brischetto, Ph.D. regarding her functional 

limitations and her ability to voluntarily comply with diabetes treatment. Third, Schreiner contends 

the ALJ' s RFC assessment failed to account for her moderate limitations in concentration, 

persistence, or pace. She contends these errors were hatmful because they led the ALJ to assess her 

with an RFC that did not accurately reflect all ofher functional limitations. Fourth, she contends the 

ALJ elicited testimony from the VE using hypothetical assumptions that did not reflect her limitation 

to perfo1m only one and two step commands. She contends this error was hatmful because it led the 

VE to identify occupations requiring level tlu·ee reasoning as jobs she could perform, but such jobs 

are beyond her capacity. 

II. Credibility Determination 

In her written application, Sclu·einer alleged that diabetes caused her blood sugar levels to 

fluctuate and adversely affected her ability to talk, hear, see, complete tasks, concentrate, understand, 

follow instrnctions, remember, use her hands, and do any kind of physical work. Admin. R. 198, 

203. She claimed that she had a hard time with stress, "her body did not like changes," her brain 

"shut[] down" when her blood sugar levels were off, and she could pay attention for about an hour 

before her body needed to take a break. Admin. R. 203. During her administrative hearing, she 

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stated that frequent diabetic reactions and the need to take frequent breaks made maintaining 

employment difficult. Admin. R. 199. 

The ALJ accepted many ofSchreiner's allegations and believed her medically determinable 

impairments produced some degree of the symptoms she claimed. For example, the ALJ's RFC 

assessment acknowledged a limited capacity for physical exertion, use of the hands, and work in an 

unpredictable enviromnent. The ALJ discounted Schreiner's credibility regarding the intensity, 

persistence, and limiting effects of her impairments. Admin. R. 24. He did not believe her 

allegations of limitations exceeding those in the RFC assessment or her claim that she could not 

perform any work. 

An adverse credibility determination must include specific findings supported by substantial 

evidence and a clear and convincing explanation. Carmickle v. Comm 'r, Soc. Sec. Admin., 533 F.3d 

1155, 1160 (9th Cir. 2008); Smolen v. Chafer, 80 F.3d 1273, 1281-82 (9th Cir. 1996). The findings 

must be sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily 

discredit the claimant's testimony. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). In 

assessing credibility, an ALJ must consider all the evidence in the case record, including the 

objective medical evidence, the claimant's treatment hist01y, medical opinions, daily activities, work 

hist01y, the observations of third paliies with knowledge of the claimant's functional limitations, and 

any other evidence that bears on the consistency and veracity of the claimant's statements. 

Tommasetti, 533 F.3d at 1039; Smolen, 80 F.3d at 1284. 

The ALJ' s written decision shows that he found Schreiner' s alleged limitations to be 

inconsistent with her work hist01y. Admin. R. 28. A significant work history may suppott an 

adverse credibility finding with respect to a claimant's professed inability to work. Thomas v. 

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Case 3:15-cv-00607-JO Document 25 Filed 07/01/16 Page 4 of 16
Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). He noted that Schreiner successfully worked at Fred 

Meyer for six years and that she testified that she actively sought employment during her social 

security application process. Admin. R. 28, 199. The ALJ properly noted that Schreiner had 

received a job offer in December, 2011, but despite this apparent ability to work, continued to wait 

for her social security application to be processed. Admin. R. 28. Fmihermore, he noted that she 

obtained a medical billing and insurance ce1iificate from Everest College, achieving a 3.0 GPA in 

the program, which supports his contention that her concentration and ability to understand were not 

as limited as claimed. Admin. R. 529. He noted that, though Schreiner acknowledged that she 

struggled to control her diabetes, she continued to search for work. He concluded that this activity 

demonstrated that she believed that she could work despite her limitations. Admin. R. 28. Indeed, 

Schreiner explicitly told Dr. Brischetto that she believed she would be able to work in a low-stress 

environment. Admin. R. 529. Because he gave specific reasons to support his conclusion that 

Schreiner' s work history was inconsistent with the alleged level of functional impairment, he 

properly found her testimony not credible. 

The ALJ supported his adverse credibility inference with evidence that Schreiner engaged 

in daily activities that showed she was not as limited as she claimed. Admin. R. 25. An ALJ may 

find that activities of daily living detract from a claimant's subjective statements when the activities 

contradict the subjective claims. Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007). Schreiner was 

reportedly able to clean, shop, care for her cat, cook meals, and independently perform self care and 

hygiene. Admin. R. 199, 531. The ALJ noted that she drove a car without assistance and was able 

to manage money and handle a savings account. Admin. R. 531, 532. Furthe1more, he pointed out 

that she spent a good deal of time at the librmy where she used a computer to perfo1m research. 

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Case 3:15-cv-00607-JO Document 25 Filed 07/01/16 Page 5 of 16
Admin. R. 531. The ALJ could rationally conclude that these activities were inconsistent with 

Schreiner' s subjective claims of debilitating limitations in attention, focus, memoty, persistence with 

tasks, use of her hands, walking, bending, and so fotih. Accordingly, the ALJ rationally drew an 

adverse inference as to her credibility based on her daily activities. },;Jolina v. As true, 64 7 F .3d 1104, 

1113 (9th Cir. 2012). 

The ALJ noted that Schreiner's noncompliance with her treatment further discredited her 

statements. He cited ample evidence in the record demonstrating Schreiner' s poor compliance, 

including references to refusal to eat regularly and take insulin as prescribed. Admin R., 257, 273, 

448, 463, 475, 492,662, 672, 693, 694. A claimant's unexplained failure to seek treatment or follow 

a course of treatment may cast doubt on the sincerity of his disability claims. Flaten v. Sec '.Y of 

Health & Human Serv., 44 F.3d 1453, 1464 (9th Cir. 1995). When a claimant makes subjective 

claims of disabling symptoms, but fails to comply with prescribed treatment, an ALJ may reasonably 

find the subjective statements unjustified or exaggerated. Orn v. Astrue, 495 F.3d at 639; 

Tonapetyan v. Halter, 242 F.3d 1144, 1147-48 (9th Cir. 2001). 

Schreiner contends her noncompliance was an improper basis for the ALJ to discount her 

credibility because her cognitive impairments rendered her incapable of adhering to treatment. The 

ALJ identified evidence suggesting that the opposite was true, however, i.e. that noncompliance led 

to her mental impai1ments. For instance, Schreiner stated that her ability to concentrate and 

remember only declined when her blood sugars were low and that she functioned better when her 

blood sugars were within a normal range. Admin. R. 533. A psychological exam suggested that 

blood sugar instability caused her mental disorders, rather than the other way around. Admin. R. 

533. In sh01i, the evidence reasonably supports an inference that Schreiner first chose not to adhere 

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Case 3:15-cv-00607-JO Document 25 Filed 07/01/16 Page 6 of 16
to her treatment regimen, which led to lowered blood sugar levels which in turn led to decreased 

mental functions. The Commissioner's factual findings must be upheld if supported by inferences 

reasonably drawn from the record even if evidence exists to support another rational interpretation. 

Batson, 359 F.3d at 1193. The ALJ reasonably drew an adverse inference as to Schreiner's 

credibility from the evidence of her noncompliance, even if the evidence could be interpreted 

differently, in a manner more favorable to her. 

The ALJ' s findings are supported by substantial evidence in the record and are sufficiently 

specific for me to conclude that the ALJ did not arbitrarily discredit Sclll'einer' s statements. His 

reasoning is clear and convincing and the credibility determination will not be disturbed. 

Tommasetti, 533 F.3d at 1039; Carmickle, 533 F.3d at 1160. 

III. Opinions of Medical and lWental Health Care Providers. 

Dr. Anne lvf Weinsofl. l'v!D. 

Schreiner established primary care with Dr. Weinsoft in August 2008, primarily for ongoing 

diabetes, but treatment records reflect that a clinic pharmacist and other practitioners provided most 

of her care. Admin. R. 371. Dr. Weinsoft noted that Schreiner's control of her diabetes was poor 

and that she was "in dire need of diabetes education" to improve her compliance with prescribed 

medications and treatment instructions. Admin. R. 368, 372. In September 2009, Dr. Weinsoft 

observed that Schreiner remained cavalier about taking insulin and food as scheduled for proper 

diabetes control. Admin. R. 324-325. In June 2011, Dr. Weinsoft noted that Schreiner's diabetes 

remained under poor control, due mainly to lack of adherence to her treatment regimen, resistence 

to following treatment instructions, and lack of collaboration with her treatment providers. Admin. 

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Case 3:15-cv-00607-JO Document 25 Filed 07/01/16 Page 7 of 16
R. 271, 273, 276. In July 2013, Dr. Weinsoft again indicated that Schreiner was not adherent to 

recommended insulin regimen, diet, or safety precautions. Admin. R. 656. 

Based on this treatment histmy, Dr. Weinsoft offered two opinions regarding Schreiner's 

limitations. In July 2011, Dr. Weinsoft authored a letter stating that Schreiner could not return to 

work involving any "physical labor" due to "frequent episodes of low blood sugar" which would 

make that type of work "dangerous and impossible to perfo1m." Admin. R. 253. The ALJ did not 

reject this opinion, giving it "some weight" in his decision. Admin. R. 29. It appears the ALJ 

inco1porated this opinion into his RFC assessment by finding Schreiner limited to physical exertion 

in the light and sedentary range. Admin. R. 23. 

In September 2013, Dr. Weinsoft completed a questionnaire provided by Schreiner' s lawyer 

to suppo1t her social security disability claim. Admin. R. 636. Dr. Weinsoft said Schreiner was 

probably limited to some degree in work activities such as lifting, canying, walking, standing, 

sitting, pulling and pushing, kneeling, crouching and so fmih. Dr. Weinsoft conceded, however, that 

she did not have the proper training to evaluate Schreiner' s capacity in such activities. Admin. R. 

63 7. She said Schreiner suffered from depression and had extreme difficulty with social functioning. 

Admin. R. 638. She also opined that fluctuations in Schreiner's blood sugar levels caused marked 

impahment in her ability to concentrate, persist, or maintain pace on tasks. Admin. R. 63 8. She said 

Schreiner' s activities of daily living were moderately limited by back pain, concentration problems, 

and financial difficulties. Admin. R. 639. Dr. Weinsoft opined that job stress would have an adverse 

impact on Schreiner' s blood sugar stability and be likely to increase her symptoms. Admin. R. 639. 

She said that inconsistent blood sugar levels and side effects from insulin would interfere with her 

ability to sustain attention and concentration sufficient to perform simple tasks up to eight hours a 

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week. She also claimed Schreiner would miss sixteen hours of work per month due to medical 

appointments. Admin. R. 639. Dr. Weinsoft said she believed Schreiner was "genuinely disabled" 

and "truly in need of assistance from Social Security." Admin. R. 640. 

The ALJ gave Dr. Weinsoft's 2013 opinion limited weight. He accepted that Schreiner 

required work in a routine and predictable environment to avoid job stress, but discounted her 

statements that Schreiner would be unable to maintain attention and concentration sufficiently to 

perform routine tasks and that she would require excessive doctor visits, assuming she complied with 

recommended treatment, diet, and safety precautions. Admin. R. 28-29. An ALJ may discount a 

medical opinion, even that of a treating physician, for clear and convincing reasons supported by 

substantial evidence or if the opinion is contradicted by other medical opinions for specific and 

legitimate reasons. Tommassetti v. Astrue, 533 F.3d at 1041; Bayliss v. Barnhart, 427 F.3d 1211, 

1216 (9th Cir. 2005); Thomas v. Barnhart, 278 F.3d at 957. An ALJ need not accept the opinion 

of an examining physician that is conclusmy and unsupported by clinical findings. Bayliss, 427 F.3d 

at 1216. 

The ALJ outlined clear and convincing reasons for discounting Dr. Weinsoft' s opinion. Key 

to his analysis is the fact that Schreiner successfully maintained a job at Fred Meyer for over six 

years while suffering from the same impairments and failing to adhere to her prescribed treatment 

regimen and recommended diet. This clearly supports the ALJ's conclusion that Schreiner's 

limitations were less severe than suggested by Dr. Weinsoft. Admin. R. 206. Moreover, the ALJ 

notes that Schreiner successfully completed a medical billing training program at Everest College 

with a 3.0 GPA after her work at Fred Meyer ended. Admin. R. 31. Furthermore, during a 

psychological exam, Sclu·einer also stated that she believed that she would be able to work in a job 

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Case 3:15-cv-00607-JO Document 25 Filed 07/01/16 Page 9 of 16
that allowed her to take breaks and did not impose a high level of stress. Admin. R. 529. Schreiner 

also attested to searching for jobs or volunteering on a daily basis in her Social Security Application. 

Admin. R. 199, 640. This evidence contradicted Dr. Weinsoft's opinion and gave the ALJ an 

adequate basis to limit the weight he attributed to her statements. 

Sclu·einer contends that the ALJ failed to consider her poor job performance while working 

at Fred Meyer. She said she suffered numerous difficulties from her impairments while working at 

Fred Meyer, and her employer's unwillingness to accommodate her disease culminated in her 

termination. She claims her poor performance supported Dr. Weinsoft's opinion regarding her 

limitations. To support this claim, Sclu·einer produced only her own subjective statements, which 

the ALJ found lacking in credibility. Her subjective description of her job difficulties and 

te1mination were contradicted by her own testimony that she was terminated for insubordination 

when she refused a supervisor's order to clock out and return home to properly treat a diabetic 

reaction. Admin. R. 23. 

Schreiner also asse11s that the ALJ wrongly discounted Dr. Weinsoft' s opinion that 

significant psychological problems would prohibit Sclu·einer from maintaining employment. Dr. 

Weinsoft repeatedly noted that she expressed inappropriate judgment and tangential speech during 

medical examinations. Admin. R. 702, 692, 691, 689, 683, 680, 678, 669, 672. Notably, however, 

Dr. Weinsoft also found that Sclu·einer had normal behavior and thought content. Admin. R. 690, 

681, 684, 669, 702. Contrary to Dr. Weinsoft' s opinion of Schreiner' s psychological problems, Dr. 

Brischetto performed a psychological evaluation and concluded that Schreiner' s thought processes 

were generally organized and logical, that she had insight into her present distress, that she did well 

on attention screening matters, and that she had some insight and capacity for common sense, 

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Case 3:15-cv-00607-JO Document 25 Filed 07/01/16 Page 10 of 16
reasoning, and judgment. Admin. R. 532-534. In short, the record reflects clear inconsistencies 

between the debilitating levels of impairment suggested by Dr. Weinsoft and the levels of 

impairment supported by the record as a whole. The Commissioner's factual findings must be 

upheld if suppo1ted by inferences reasonably drawn from the record even if evidence exists to 

support another rational interpretation, and accordingly must be upheld here. Batson, 359 F.3d at 

1193. 

Schreiner also contends that the ALJ failed to acknowledge Dr. Weinsoft's suggestion that 

her noncompliance with treatment resulted from her mental health issues. Had he given this opinion 

full weight, she argues, the ALJ would have found that she was incapable of adherence to treatment 

and that the complications of uncontrolled diabetes were not preventable, leaving her unable to work. 

Schreiner relies on progress notes from Dr. Weinsoft stating that psychological issues "may" play 

a big role in Schreiner' s noncompliance, that Dr. Weinsoft was concerned about Schreiner' s ability 

to consistently manage her diabetes treatment, and that she was "working to resolve" psychiatric 

issues to better facilitate treatment adherence. Admin. R. 672, 691. Indeed, many of Dr. Weinsoft's 

exam notes report that Schreiner had little insight into her disease, possessed odd beliefs regarding 

insulin treatment, and was very resistant to redirection or education. Admin. R., 269, 349, 473. 

Dana Pilchick, a case manager, stated that stress led Schreiner to abandon self-care. Admin. R. 693, 

698. Schreiner claims that the ALJ ignored this evidence and mistakenly concluded that Schreiner 

chose not to comply with her treatment when in actuality cognitive disorders prevented her from 

doing so. 

Treatment records do not attribute Schreiner's noncompliance to cognitive limitations, 

however. Dr. Weinsoft noted episodes of noncompliance due to "losing her meter" and "having 

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Case 3:15-cv-00607-JO Document 25 Filed 07/01/16 Page 11 of 16
other life issues that take priority," rather than cognitive impairment. Admin. R. 663. Similarly, 

Lauren Hansen, Phaim. D, ("Hansen") stated that the "patient has compliance issues due to family 

drama" and relationship issues. Admin. R. 695. Moreover, evidence demonstrates that Schreiner 

was capable of complying with treatment because she experienced periods of compliance. In 2011, 

for instance, Dr. Weinsoft noted that Schreiner had "figured out how to plan insulin and meals 

around breaks" while doing a volunteer job. Admin R. 254. The ALJ also cited records showing 

that Schreiner was complying with treatment most of the time. Admin. R. 25, 447-449. 

Finally, Schreiner argues that the ALJ wrongfully discounted Dr. Weinsoft's statement that 

Schreiner was "genuinely disabled" and in need of assistance from social security. Admin. R. 640. 

This statement does not identify specific functional limitations or work related activities that 

Sclu·einer could not perform. Accordingly, it is not a medical opinion as much as a vocational 

opinion for which Dr. Weinsoft has no special qualification. Notably, Dr. Weinsoft explicitly 

admitted that she was not trained to evaluate specifics regarding Schreiner's level of impairment. 

Admin. R. 637. Furthermore, the ALJ conectly supp01ied his evaluation of Dr. Weinsoft's opinion 

with evidence of Schreiner' s work at Fred Meyer, volunteer experience, daily activities, and 

educational endeavors, all of which suggest Schreiner was not as limited as Dr. Weinsoft suggested. 

Admin. R. 29-31. Accordingly, the ALJ conectly discounted Dr. Weinsoft's opinion as to the 

ultimate issue of disability. 

Dr. Chervl Brischetto. Ph.D. 

In April 2012, Dr. Brischetto performed a consultative psychodiagnostic evaluation at the 

request of the Social Security Administration. Admin. R. 538. Sclu·einer told Dr. Brishcetto she 

could work if her job was not stressful and had a routine so she could plan when to eat and take 

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insulin. Admin. R. 25. Notably, the ALJ incorporated these limitations into his RFC assessment. 

Admin. R. 23. In her mental status evaluation, Dr. Brischetto found Schreiner fully oriented and able 

to follow one and two step commands. Admin. R. 532, 534. Schreiner contends that the ALJ 

enoneously failed to include a limitation to one and two step tasks in the RFC assessment. She notes 

that the jobs identified by the VE require level three reasoning and would be precluded ifthe RFC 

properly limited her to one and two step tasks. 

This argument cannot be sustained because Dr. Brischetto did not indicate that one and two 

step commands marked the upper limit of Schreiner's capability. Dr. Brischetto did not complete 

a comprehensive evaluation of Schreiner' s reasoning abilities, or specifically test her ability to 

perfo1m level three reasoning. Admin. R. 532-534. The ALJ considered Dr. Brischetto's opinion 

and found that it showed Schreiner perfo1med well on the tasks she was asked to perform, despite 

noncompliance with treatment before the examination. Admin. R. 22. The evaluation simply did 

not address the limits ofSchreiner's reasoning ability, particularly when complying with treatment. 

The ALJ drew reasonable inferences from the evidence and articulated specific reasons to suppo1i 

his evaluation of Dr. Brischetto's opinion. Accordingly, his evaluation will not be disturbed. 

VI. RFC Assessment 

Schreiner argues that the ALJ ened by not including any explicit limitations in concentration, 

persistence, or pace in his RFC assessment. The ALJ acknowledged Schreiner's subjective selfevaluation that she could "concentrate for an hour before taking a break" during step two of his 

analysis, but did not incorporate this limitation into his RFC assessment. Admin. R. 22. As 

discussed previously regarding the ALJ's credibility determination, the ALJ noted evidence 

suggesting Schreiner was not as limited as she subjectively claimed. For example, he noted that 

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Schreiner achieved a 3.0 GP A in her medical billing program and that Dr. Brischetto found her able 

to sustain concentration and focus of attention. Admin. R. 22. Indeed the only evidence supporting 

Schreiner's alleged attention difficulties is her subjective claim which the ALJ found lacking in 

credibility. An ALJ is not required to incorporate additional limitations he finds unsupp01ied by the 

record or suppo1ied only by discredited evidence. Batson, 359 F.3d at 1197-98; Osenbrockv. Apfel, 

240F3d1157, 1163-65 (9th Cir2001); Afagallanes v. Bowen, 881F2d747, 756-57 (9th Cir. 1989). 

The ALJ's RFC assessment reflects the limitations he found supported by the evidence and it will 

not be disturbed based solely on Schreiner's subjective statement. 

VII. Vocational Evidence 

At step five, the Commissioner must show that work exists in the national economy that can 

be performed by a person with the claimant's RFC. Andrews, 53 F.3d at 1043. The Commissioner 

can satisfy this burden by eliciting the testimony of a vocational expe1i with a hypothetical question 

that sets foith all of the claimant's limitations. The assumptions in the hypothetical question must 

be supp01ted by substantial evidence. Andrews, 53 F.3d at 1043. 

Here, the ALJ elicited the VE's testimony by posing hypothetical assumptions based on his 

RFC assessment that contained the limitations the ALJ found credible and supported by substantial 

evidence. Bayliss, 427 F.3d at 1217-8. Admin. R. 24. The VE testified that a person with 

Schreiner' s RFC could perfo1m semi-skilled, sedentmy work as a medical biller, and unskilled work 

as a medical cashier or small pa1ts assembler. These occupations represent over a million jobs in 

the national economy. Admin. R. 72-73. The ALJ relied on that testimony to conclude that 

Schreiner was not disabled. Admin. R. 23. 

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By restating her challenges to the ALJ' s evaluation of the evidence, Schreiner argues that the 

VE' s testimony has no evidentiary value because the hypothetical assumptions did not reflect all of 

her limitations. In paiiicular, Schreiner again raises Dr. Brischetto' s opinion regarding her ability 

to perform one and two step commands. In this iteration of the argument, Schreiner contends cases 

such as Zavalin v. Colvin, 778 F.3d 842, 846 (9th. Cir. 2015), required the ALJ to determine whether 

such a limitation is consistent with level three reasoning before relying on the VE' s testimony that 

she could perform jobs requiring level tluee reasoning. Schreiner' s reliance on Zavalin is misplaced, 

however, because the factual circumstances are distinguishable. In Zavalin, the ALJ found that the 

claimant was limited to simple jobs based on evidence that his mental impairments left him unable 

to deal with problems involving concrete vai'iables or to "apply commonsense understanding to cany 

out instrnctions furnished in written, oral, or diagrammatic form." Zavalin, 778 F.3d. at 844. The 

co mi concluded that the ALJ should have dete1mined whether these limitations were consistent with 

level three reasoning before dete1mining that Zavalin could perform jobs requiring level three 

reasoning. Here, the ALJ did not limit Schreiner to simple jobs and the evidence does not suggest 

the degree of mental impairment that Zavalin suffered. 

Finally, even if Schreiner were correct that the ALJ should have limited her RFC to level 

three reasoning based on Dr. Brischetto's opinion, the alleged error would have been harmless. The 

VE identified over 500,000 jobs in the occupation of small parts assembler requiring only level two 

reasoning. Admin. R. 32. Schreiner does not contest her ability to cany out level two reasoning. 

As discussed more fully previously, in assessing Schreiner' s RFC, the ALJ properly included 

the limitations he found supported by the record and excluded limitations suppo1ied only by 

discredited evidence. The hypothetical assumptions the ALJ used to elicit testimony from the VE 

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Case 3:15-cv-00607-JO Document 25 Filed 07/01/16 Page 15 of 16
accurately reflected his RFC assessment. Batson, 359 F.3d at 1197-98. Accordingly, Schreiner's 

challenge to the vocational testimony cannot be sustained. The ALJ properly relied on the VE's 

testimony in determining that Schreiner was not disabled within the meaning of the Social Security 

Act. 

CONCLUSION 

For the foregoing reasons, the Commissioner's final decision is AFFIRMED. 

DATED this (~day of July, 2016. 

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