Summary
finding ALJ properly drew an adverse inference from claimant declining treatments, including surgery, that would alleviate symptoms
Summary of this case from Michelle G. v. SaulOpinion
1:16-cv-02035-JO
02-15-2018
EVAN R. AUSTIN, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
OPINION AND ORDER ,
Plaintiff Evan Austin appeals the Commissioner's decision denying his concurrent applications for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. The court has jurisdiction under 42 U.S.C. § 405(g). I AFFIRM the Commissioner's decision.
PRIOR PROCEEDINGS
Austin alleged disability beginning April 2, 2009, due to pain in the back, degenerative disc disease and hearing problems. Admin. R. 23, 268, 277, 313, 341. He satisfied the insured status requirements of the Social Security Act through September 30, 2014. Admin. R. 224. He must establish that he became disabled on or before that date to prevail on his Title II claim. 42 U.S.C. § 423(a)(1)(A). Tidwell v. Apfel, 161 F.3d 599, 601 (9 Cir. 1998).
An ALJ applied the sequential disability determination process described in 20 C.F.R. sections 404.1520 and 416.920. See Bowen v. Yuckert, 482 U.S. 137, 140(1987). That ALJ issued an adverse decision, but the Appeals Council remanded with instructions to obtain additional evidence and conduct further proceedings. Admin. R. 158-177.
On remand, a second ALJ also applied the correct regulatory disability determination process. The ALJ found Austin's ability to perform basic work activities adversely affected by degenerative disc disease in the lumbar region of the spine, bilateral carpal tunnel syndrome status post left carpal tunnel release, and left ulnar neuropathy status post left ulnar nerve transposition. Admin. R. 26. The ALJ found that, despite these impairments, Austin retained the residual functional capacity ("RFC") to perform light work with the option to sit or stand, limited climbing and postural activities such as stooping, crouching, and so forth, limited handling and fingering, and no concentrated exposure to workplace hazards. Admin. R. 27.
The vocational expert ("VE") testified that a person having Austin's age, education, work experience, and RFC could perform his past relevant work of garage supervisor as that occupation is generally performed in the national economy. Admin. R. 32, 62. The VE testified that a person with Austin's vocational factors and RFC could also perform the activities required in light, unskilled occupations such as bagger, table worker, hand packager, greeter, gate guard, and parking lot cashier, which represent over two million jobs in the national economy. Admin. R. 33, 63-65. The ALJ concluded that Austin was not disabled within the meaning of the Social Security Act. Admin. R. 34. \\\ \\\
STANDARD OF REVIEW
The district court 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. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). Substantial evidence is relevant evidence that a reasonable person might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence may be less than a preponderance of the evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Under this standard, the court must consider the record as a whole, and uphold the Commissioner's factual findings that are supported by inferences reasonably drawn from the evidence, even if another interpretation is also rational. Robbins, 466 F.3d at 882; Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Andrews v. Shalala, 53 F.3d 1035, 1039 -40 (9th Cir. 1995).
ASSIGNMENTS OF ERROR
The plaintiff bears the burden of showing that the ALJ erred and that any error was harmful. McLeod v. Astrue, 640 F.3d 881, 886-87 (9th Cir. 2011). Austin contends the ALJ improperly discounted his subjective symptoms, the medical opinions of Anthony Francis, M.D., and Mason Harrison, F.N.P., and the lay witness statement of his son, Kamryn Larsen. As a result, Austin contends, the ALJ's RFC assessment did not accurately reflect all of his functional limitations. This caused the ALJ to elicit testimony from the VE based on hypothetical assumptions that did not accurately reflect his limitations. Austin also contends the ALJ improperly classified his past relevant work. \\\ \\\
DISCUSSION
I. Subjective Symptoms
Initially, Austin alleged disability due to back problems, hearing problems, and degenerative disc disease. Admin. R. 313. He described his back problems as lower back pain and numbness which made it difficult for him to stand, walk, or sit for extended periods without changing positions every hour or less. Admin. R. 50, 53, 89-91, 95, 341. Austin also alleged limitations from bilateral carpal tunnel syndrome and neuropathy in the left elbow, for which he underwent surgical carpal tunnel release and ulnar nerve transposition on the left side. Admin. R. 50, 91. Austin said he could not squeeze or pick up anything with his left hand and could not lift anything larger than a soup can. Admin. R. 50, 54. If he tried to lift a gallon of milk, the strain would cause pain and inflamation in his arm for up to two weeks. Admin. R. 96, 98. Austin said if he had a sedentary job, he would miss more than two days a month due to back pain. Admin. R. 99.
The ALJ accepted that Austin's degenerative disc disease in the lumbar spine, carpal tunnel syndrome, and left ulnar neuropathy caused more than minimal limitation in his ability to perform basic work activities. Admin. R. 26. She found, however, that Austin failed to show that his pain was so intense and persistent that it precluded him from engaging in work requiring light exertion with limited climbing, postural activities, exposure to workplace hazards, and bilateral handling, fingering, and feeling. Admin. R. 27.
When a claimant produces objective medical evidence of an underlying impairment that could reasonably be expected to produce the symptoms alleged and no affirmative evidence of malingering exists, the ALJ must evaluate the severity, persistence, and frequency of the subjective symptoms. Here, the ALJ identified affirmative evidence of malingering in the opinion of consultative examiner Derrick Sorweide, D.O. In December 2009, Dr. Sorweide said that nothing in Austin's physical examination warranted any limitation in his work activities and that Austin showed signs of malingering. Admin. R. 30, 490.
Despite the evidence of malingering, the ALJ proceeded to evaluate the severity, persistence, and frequency of Austin's subjective symptoms. In doing so, an ALJ is not to engage in wide-ranging scrutiny of the claimant's character, but to focus on the intensity and persistence of his symptoms. Treviso v. Berryhill, 862 F.3d 987, 1000 n.5 (9th Cir. 2017); Social Security Ruling 16-3p available at 2016 WL 1119029 (2016).
A determination that the claimant's symptoms are less debilitating than subjectively claimed must include specific findings supported by substantial evidence and a clear and convincing explanation of the ALJ's reasoning. Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008); Smolen v. Chater, 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 statements. Tommasetti v. Astrue, 533 F.3d at 1039.
In making findings about the severity of subjective symptoms, an ALJ must consider all the evidence in the case record, including the objective medical evidence, the claimant's treatment history, daily activities, work history, the observations of third parties with knowledge of the claimant's functional limitations, and any other evidence that bears on the consistency and veracity of the claimant's statements about his symptoms. Tommasetti at 1039; Smolen, 80 F3d at 1284.
The ALJ's decision demonstrates that she performed a thorough review of all the evidence relating to proper factors for evaluating the intensity, persistence and limiting effects of Austin's symptoms. She discussed the objective medical evidence and found it did not support the degree of limitation Austin alleged. The absence of medical evidence cannot be the sole basis for discounting subjective symptoms, but remains a proper factor in assessing their severity, intensity, persistence, and limiting effects. Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007); Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005); Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999).
The objective evidence showed very little to account for Austin's back pain. Shortly before the onset of disability, Austin reported he had been working hard and felt healthy except for some back pain. His physical examination was completely normal except for subjective pain with range of motion testing of the lumbar spine. Admin. R. 395. Two months after the onset of disability, Austin sought chiropractic care after aggravating his back pain by lifting a transmission. Admin. R. 397. In December 2009, Dr. Sorweide performed an orthopedic examination. Austin denied taking any medication other than marijuana. He complained of back pain and muscular weakness, but he could stand and walk without difficulty, looked fit, had full range of motion in the spine, did not have pain with axial loading, had a negative straight leg raise test for radiculopathy, and demonstrated full muscle strength throughout. Austin also had full range of motion without atrophy or other defects in the upper extremities. Dr. Sorweide found no basis to limit Austin's activities and suspected he was malingering. Admin. R. 30, 487-490
In September 2010, x-rays of Austin's spine showed normal alignment and minor degenerative changes in the lumbar spine. Admin. R. 377. In November 2010, an MRI of the spine showed mild degenerative changes with a small disc bulge but no stenosis. Admin. R. 375. In January 2011, Austin had a normal neurological evaluation by Thomas Alstadt, M.D. Austin demonstrated normal gait and station, appropriate heel to toe walking, proper alignment without any defects other than subjective lumbosacral tenderness. Austin had normal ranges of motion throughout without pain. He had full strength in the upper and lower extremities and normal muscle tone without atrophy. Dr. Alstadt said the MRI and physical examination reflected mild degenerative changes but did not reveal any likely cause for Austin's back pain complaints. He recommended conservative treatment. Admin. R. 379-381.
In August 2011, Austin reported that his back was "going out" and causing him to fall, but he had no abnormal findings on physical examination. Admin. R. 415-416. In January 2013, Austin complained of pain between the shoulder blades. Admin. R. 449. Diagnostic imaging of the thoracic spine showed no degenerative changes or lesions. A chest x-ray was also normal. Admin. R. 460, 462. Austin continued to complain of back pain, but the record does not include additional significant objective findings.
The objective medical evidence also falls short of explaining Austin's alleged inability to grasp or lift more than a soup can. In June 2011, Austin complained of burning pain in the right wrist and forearm with activities such as grasping or writing. He also said he had pain and locking of the left elbow from a past injury. Admin. R. 421-422. An electrodiagnostic evaluation confirmed moderate bilateral carpal tunnel syndrome and moderate left ulnar neuropathy. Austin did not have gross muscle weakness on either side and his general coordination remained normal. The examining physician recommended conservative treatment. Admin. R. 427-429.
In April 2012, James Dowd, M.D., an orthopedic surgeon, performed a left ulnar nerve transposition and left carpal tunnel release. Admin. R. 440-441. Austin reported he was happy with the return of sensation to his left hand and fingers. Admin. R. 439. In May 2012, Austin said the popping and sticking in his left elbow was gone and sensation had returned to his left hand. He had normal range of motion for his wrist and elbow, full grip strength, and sensation was within normal limits. Dr. Dowd released Austin to normal activities. Admin. R. 438.
In October 2012, Austin complained of right hand weakness with pain in the forearm. Admin. R. 450-451. In July 2013, he said he had right sided carpal tunnel symptoms but did not want to have surgery because he was no longer satisfied with the result on the left side. Admin. R. 469-470. In January 2015, Austin complained of a dull ache in the right elbow with activities such as cooking, lifting his daughter, and fishing. On examination, he had localized tenderness to palpation, intact sensation, full grip strength, and full range of motion of the elbow. He declined injection therapy. Admin. R. 493.
The ALJ could reasonably expect the debilitating limitations Austin claimed to be reflected in significant objective findings. Austin's medical records include only mild to moderate objective findings which are not consistent with Austin's debilitating subjective functional limitations. Accordingly, the objective medical evidence supports the ALJ's assessment of Austin's subjective symptoms. Lingenfelter, 504 F.3d at 1040; Burch, 400 F.3d at 681; Morgan, 169 F.3d at 600.
The type of treatment a claimant receives is a proper factor in assessing the severity of subjective symptoms. Burch, 400 F.3d at 681; Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007). The ALJ reviewed Austin's treatment history, which shows that, with the exception of the carpal tunnel release and ulnar nerve transposition procedures, he received very conservative treatment limited to medication, physical therapy, chiropractic adjustments, and marijuana. Admin. R. 28-29. Such conservative treatment supports an adverse inference regarding Austin's assertions of debilitating subjective symptoms. Parra v. Astrue, 481 F3d at 750-51; Meanal v. Apfel, 172 F3d 1111, 1114 (9th Cir. 1999). In addition, Austin declined treatments used to alleviate the right sided carpal tunnel symptoms he described, including injections and carpal tunnel release surgery. When a claimant describes debilitating symptoms but declines to follow treatment recommendations designed to alleviate the symptoms, the ALJ may reasonably draw an adverse inference as to the severity of the subjective symptoms. Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007).
The ALJ also relied on Austin's reported daily activities in assessing his subjective symptoms. Admin. R. 29. When a claimant engages in daily activities that are inconsistent with his asserted limitations, an ALJ may properly draw an adverse inference as to the asserted limitations. Molina v. Astrue, 674 F.3d 1103, 1112-1113 (9th Cir. 2012); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). The ALJ noted that, contrary to Austin's claim that he could not lift more than a soup can or a gallon of milk, he reported aggravating his back by lifting a transmission. Admin. R. 28, 397. The ALJ noted that Austin was able to do his self employed work building wiring harnesses when he felt it was necessary for financial reasons, without any change in his reported symptoms. Admin. R. 29. In addition to running his business, the ALJ noted that Austin was the primary caretaker for his child, performed all household chores such as laundry and cooking, drove his daughter to school, attended school conferences and participated in school field trips, lifted her, and enjoyed fishing. Admin. R. 29. While these activities are not equivalent to full time work, the ALJ could reasonably infer that they were inconsistent with the totally debilitating pain that Ausitn claimed. The ALJ reasonably found that this level of activity was inconsistent with Austin's assertions that he could not stand, walk, sit or lift more than a can of soup. The ALJ found these activities more consistent with the ability to engage in activities at the light level of exertion, with the additional limitations in the RFC assessment. Admin. R. 29.
The ALJ's evaluation of Austin's subjective symptoms is supported by inferences reasonably drawn from the record. The decision provides an adequate basis for the court to conclude that the ALJ did not discredit McCleary's subjective statements arbitrarily. The ALJ provided a clear and convincing explanation that is supported by the record. Tommasetti, 533 F.3d at 1039; Batson, 359 F.3d at 1193; Thomas, 278 F3d at 958.
II. Medical Opinions
In assessing Austin's RFC, the ALJ also considered the various medical opinions in the record, including Dr. Sorweide's opinion based on a consultative physical examination, Nurse Practitioner Harrison's opinion as Austin's primary care provider, the opinion of a chiropractor, and the opinions of the state agency reviewing experts. Admin. R. 29-31.
Austin contends the ALJ failed to give sufficient weight to the opinion of Nurse Practitioner Harrison, who provided Austin with primary care beginning before the alleged onset of disability in April 2009. After the alleged onset of disability, Austin did not see Harrison until September 2010. At that time, Harrison obtained normal objective findings except that Austin had subjective pain while raising his right leg and during palpation of the lumbar spine. Admin. R. 391-392. Contemporaneous diagnostic imaging showed normal lumbar alignment with minor lower lumbar degenerative changes. Admin. R. 377. Based on this visit, Harrison wrote two notes indicating that Austin would be unable to work for several weeks and was not to lift over five pounds. Admin. R. 458, 459.
The ALJ gave this opinion little weight. An ALJ may discount a medical opinion that is contradicted by other medical opinions for specific and legitimate reasons supported by substantial evidence. 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. The ALJ provided adequate reasons here. The ALJ found this opinion unsupported by Harrison's own clinical findings and that it appeared to be based on Austin's subjective statement that he could not lift his 24-pound daughter. Admin. R. 30. An ALJ need not accept a medical opinion that is conclusory and unsupported by clinical findings. Bayliss v. Barnhart, 427 F.3d at 1216; Mangallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The ALJ pointed out that Austin's assertion about lifting his daughter did not support Harrison's opinion that he could not lift five pounds. In addition, Harrison did not identify specific functional limitations that would preclude Austin from working, and limited that portion of his opinion to a period of several weeks. In addition, the ALJ found the opinion inconsistent with the record as a whole, which included Dr. Sorweide's previous normal orthopedic evaluation, Dr. Alstadt's benign neurological evaluation, and evidence of Austin's activities, all described in the previous section of this opinion. Admin. R. 30, 379-381, 487-490. The ALJ drew reasonable inferences from the evidence and articulated specific reasons to support her evaluation of Harrison's opinion.
Austin continued to see Harrison for primary care at several-month intervals. In September 2015, Harrison completed a worksheet titled Physical Medical Source Statement in support of Austin's present claim. Harrison said that Austin had constant burning pain and weakness in the hands and throbbing daily pain in the back. Harrison opined that Austin could sit or stand for no more than 20 minutes at a time each for a total of less than two hours per workday each. He said Austin needed to walk for five minutes every hour and take an unscheduled 20-minute break daily, due to pain and muscle weakness. Harrison said Austin had to elevate his legs above his heart for 10% of the time during a workday. He thought Austin could rarely lift ten pounds, rarely crouch, squat or climb stairs, and never bend or stoop. He said Austin could use his arms, hands, and fingers for reaching, grasping, and fine manipulation only 10% of the time. He believed Austin's symptoms would interfere with attention and concentration and opined that Austin would be absent from work more than four days per month if he attempted to work full time. Admin. R. 495-498.
The ALJ gave this opinion little weight in her decision because it was not supported by clinical findings in his own treatment records nor the records of any other provider who examined Austin. Admin. R. 31. The ALJ's reasoning is supported by the record. For example, there is no mention anywhere in the record that any provider suggested Austin elevate his legs. Treatment records reflect that Austin consistently demonstrated full muscle strength in the upper extremities. Physical examinations consistently indicated he had good muscle tone without any of the atrophy that would be associated with the level of disuse suggested in Harrison's opinion. Admin. R. 380-381, 428, 489-490. It was reasonable and proper for the ALJ to discount this opinion because it was not supported by clinical findings. Bayliss v. Barnhart, 427 F.3d at 1216; Mangallanes v. Bowen, 881 F.2d at 751. Under such circumstances, it is reasonable to infer that Harrison premised his opinion primarily on Austin's subjective complaints despite the absence of objective signs to support them. An ALJ may discount a medical opinion that is premised primarily on subjective complaints that the ALJ properly found unreliable. Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989). Accordingly, I find the ALJ provided specific legitimate reasons for the weight she gave Harrison's statement and her reasoning is supported by inferences reasonably drawn from the record as a whole.
In March 2013, during the first administrative hearing, before this matter was remanded by the Appeals Council to obtain additional evidence, a different ALJ heard testimony from Anthony Francis, M.D., who appeared as a medical expert. Admin. R. 75. In proceedings after remand, the Commissioner complied with the remand instructions by obtaining additional medical records, re-evaluating Austin's RFC based on the expanded record, and receiving testimony from a vocational expert in a new administrative hearing. Dr. Francis did not appear at the hearing after remand. Austin contends the ALJ who issued the final decision erred because she did not discuss Dr. Francis's testimony from the first hearing.
During his testimony, Dr. Francis opined that the medical records up to that time supported a limitation to light exertion, with standing and walking up to six hours in a workday, only occasional postural activities such as bending, stooping, crouching and so forth. Admin. 81-83. Dr. Francis said nothing in the medical records supported some of Austin's alleged symptoms, such as pain radiating to his legs and right foot. Admin. R. 85. This much of Dr. Francis's testimony is entirely consistent with the ALJ's assessment of Austin's RFC. Admin. R. 27. Dr. Francis said that Austin would be able to use the upper extremities for handling, fingering, and wrist motion occasionally, but should not be expected to engage in repetitive hand and wrist motion throughout the day. Admin. R. 81-82, 88-89. Austin contends the ALJ erred because she limited his RFC to "frequent, but not constant, bilateral handling, fingering, and feeling," without referring to Dr. Francis's testimony. Admin. R. 27.
I am persuaded that the ALJ did not err regarding Dr. Francis's testimony. The ALJ formulated her assessment of Austin's RFC based on an expanded record that included evidence Dr. Francis was not aware of when he testified. The additional evidence included evidence that Austin had regained sensation in his hands and retained full grip strength and that he returned to work building wiring harnesses, an activity that requires extensive use of the hands. Admin. R. 29, 47-55, 473, 481, 492-493. Dr. Francis did not offer an opinion based on the expanded record.
To the extent the ALJ should have discussed Dr. Francis's testimony, any error was harmless. Where an ALJ's determination remains supported by substantial evidence despite an error, the error is harmless. Molina v. Astrue, 674 F.3d at 1115; Carmickle, 533 F.3d at 162-163 and n. 4. First, the ALJ's determination of Austin's RFC in 2015 remains supported by the expanded record, even if Dr. Francis's opinion regarding Austin's limitations in 2013 were fully credited. Second, the VE testified that a person with limitations consistent with Dr. Francis's testimony would be able to perform the occupation "greeter" which represents approximately 300,000 jobs in the national economy. Admin. R. 66. Accordingly, the ALJ's omission to discuss Dr. Francis's testimony from 2013 was not harmful error. Lockwood v. Comm'r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010).
To summarize, Austin has failed to satisfy his burden to show harmful error in the ALJ's evaluation of the medical opinions. McLeod v. Astrue, 640 F.3d at 886-87.
III. Lay Witness Statement
In April 2011, Austin's son, Kamryn Larsen completed a Third Party Function Report. Larsen said Austin's back pain made it difficult for him to lift, engage in extended physical activity, perform routine tasks, bend over, and stand for long periods of time. Admin. R. 325-327. In addition to his physical limitations, Larsen said Austin had problems with concentration, completing tasks, and getting along with others. Admin. R. 330. The ALJ gave Larsen's report only partial weight in her decision. Admin. R. 31.
An ALJ must consider the testimony of a lay witness, but may discount it for reasons germane to the witness. Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009). The ALJ's reasons must be supported by substantial evidence, but may appear anywhere in the decision without being tied directly to the evaluation of the lay witness statements. Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). If the ALJ gives adequate reasons for discounting the statements of one witness, those reasons are sufficient to reject the similar statements of a different lay witness, even if the ALJ does not discuss each witness's statements on an individualized basis. Molina v. Astrue, 674 F.3d at 1114. Further, when the statements of a lay witness are similar to the claimant's subjective complaints, then an ALJ's proper reasons for discounting the claimant's statements are also germane to the lay witness. Valentine, 574 F.3d at 694.
Here, the ALJ found that, by necessity, Larsen's statements relied heavily on Austin's subjective description of his pain and its effects on his ability to function. Admin. R. 31. The ALJ's reasons for discounting Austin's subjective symptoms apply equally to Larsen's statements. In addition, the ALJ correctly pointed out that the mental health limitations Larsen described were not supported by a diagnosis or clinical findings anywhere in Austin's medical records. Admin. R. 31. The ALJ provided germane reasons supported by substantial evidence for the weight she gave Larsen's lay witness statement.
IV. Remaining Contentions
At step five of the decision-making process, the Commissioner must show that jobs exist in the national economy that a person having the functional limitations of the claimant can perform. Yuckert, 482 US at 141-42. The ALJ can satisfy this burden by eliciting the testimony of a vocational expert with a hypothetical question that sets forth all the limitations of the claimant. Andrews, 53 F3d at 1043. Here the ALJ elicited testimony based on hypothetical assumptions reflecting the limitations in Austin's RFC assessment. Admin. R. 33, 63-65. Austin contends the ALJ's hypothetical assumptions did not accurately reflect all of his limitations because the ALJ did not include the limitations from his subjective symptoms, the opinions of Nurse Practitioner Harrison and Dr. Francis, and the lay witness statement of his son. The ALJ properly discounted this evidence for reasons already described. An ALJ is not required to incorporate limitations she found unsupported by the evidence in the record. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175-76 (9th Cir. 2008); Batson, 359 F.3d at 1197-98; Osenbrock v. Apfel, 240 F3d 1157, 1164-65 (9th Cir 2001). Accordingly, Austin's challenge to the vocational testimony fails.
CONCLUSION
The ALJ properly evaluated all the evidence and reached rational conclusions based on inferences reasonably drawn from the record as a whole. Even if the evidence in this case record could be interpreted differently, in a manner more favorable to Austin, the court is not free to overturn an ALJ's factual determinations on the basis that "the evidence is susceptible to more than one rational interpretation." Andrews, 53 F.3d at 1039; Batson, 359 F.3d at 1193.
For the foregoing reasons, the Commissioner's final decision is AFFIRMED.
DATED this 15 day of February, 2018.
/s/_________
Robert E. Jones
United States District Judge