Rondan v. Colvin

Filing 39

ORDER - IT IS ORDERED that the Commissioner's disability determination is AFFIRMED. The Clerk of Court is directed to enter judgment in favor of the Commissioner and against Plaintiff and to terminate this action. (See document for full details). Signed by Magistrate Judge Bridget S Bade on 9/17/15. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Lucy Rondan,

No. CV-14-00819-PHX-BSB
Plaintiff,

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v.

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ORDER

Carolyn W. Colvin,

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Defendant.

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Plaintiff Lucy Rondan seeks judicial review of the final decision of the

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Commissioner of Social Security (the Commissioner) denying her application for benefits

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under the Social Security Act (the Act). The parties have consented to proceed before a

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United States Magistrate Judge pursuant to 28 U.S.C. § 636(b), and have filed briefs in

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accordance with Local Rule of Civil Procedure 16.1. As set forth below, the Court

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affirms the Commissioner’s decision.

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I.

Procedural Background

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On August 27, 2010, Plaintiff applied for a period of disability and disability

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insurance benefits under Title II the Act. (Tr. 25.)1 Plaintiff alleged that she had been

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disabled since September 15, 2008. (Id.) After the Social Security Administration (SSA)

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denied Plaintiff’s initial application and her request for reconsideration, she requested a

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(Doc. 15.)

Citations to “Tr.” are to the certified administrative transcript of record.

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hearing before an administrative law judge (ALJ). After conducting a hearing, the ALJ

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issued a decision finding Plaintiff not disabled under the Act. (Tr. 15-36.) This decision

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became the final decision of the Commissioner when the Social Security Administration

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Appeals Council denied Plaintiff’s request for review. (Tr. 1-6); see 20 C.F.R. § 404.981

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(explaining the effect of a disposition by the Appeals Council.) Plaintiff now seeks

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judicial review of this decision pursuant to 42 U.S.C. § 405(g).

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II.

Administrative Record

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The record before the Court establishes the following history of diagnosis and

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treatment related to Plaintiff’s alleged impairments. The record also includes opinions

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from state agency physicians who examined Plaintiff or reviewed the records related to

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her impairments, but who did not provide treatment.

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A.

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Medical Treatment Evidence
1.

Treatment for Physical Impairments

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In June 2010, Plaintiff’s primary care physician referred her to Gabriel Colceriu,

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M.D., at the rheumatology clinic at St. Joseph’s Hospital and Medical Center. (Tr. 351.)

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Plaintiff complained of pain in her knees, hands, wrists, neck, left shoulder, and hip. (Id.)

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On examination, Dr. Colceriu noted bilateral crepitation of the first CMC joints, bilateral

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patellofemoral crepitation with “exquisite tenderness to palpation over the media

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meniscal area bilaterally,” and bilateral valgus deformities. (Tr. 352.) He also noted that

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Plaintiff was in no acute distress, she had normal rotation in her hips, full range of motion

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in her lower extremities, and her “hand grip was intact.” (Id.) Dr. Colceriu noted that an

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x-ray of Plaintiff’s knee from 2009 showed minimal degenerative changes. (Tr. 353.)

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An x-ray of Plaintiff’s right hand from 2009 showed degenerative arthritis at the first

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CMC and second and third distal interphalangeal (DIP) joints. (Tr. 353.) Dr. Colceriu

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diagnosed polyarthritis in the absence of rheumatoid arthritis and prescribed oxycodone.

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(Id.)

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Dr. Colceriu’s treatments records from July 12, 2010, note continued joint pain in

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Plaintiff’s knees, hands, and lower back, which was mildly alleviated with oxycodone

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taken several times a day. (Tr. 348.) On examination, Plaintiff had mild crepitation in

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her “first CMC bilaterally,” normal rotation in her hips, crepitation in her knees, and her

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left knee was tender to palpation over the medial and lateral meniscus.

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Dr. Colceriu prescribed fentanyl. (Id.)

(Tr. 349.)

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On August 23, 2010, Plaintiff sought treatment from orthopedic surgeon

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Dr. Robert Kasa. (Tr. 403.) On examination, Plaintiff was in no acute distress and was

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alert and oriented with a normal mood and affect. (Id.) Dr. Kasa noted bilateral antalgic

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gait (limping) and valgus deformities of both knees, with “crepitation at the

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patellofemoral joint with a range of motion.” (Id.) Dr. Kasa also ordered x-rays that

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showed “no real patellofemoral arthritic changes or mild ones if any.” (Tr. 403.) He

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noted some “mild arthritic changes of the medial and lateral compartment of the knee and

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a valgus alignment with mild narrowing laterally.” (Id.) He stated that “[a]ll of the

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changes [were] quite mild.” (Id.) Dr. Kasa administered steroid injections in both knees.

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(Tr. 404.)

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Plaintiff retuned to Dr. Colceriu in September 2010. During a September 29, 2010

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examination, Dr. Colceriu noted that Plaintiff was in no acute distress. (Tr. 345.) He

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noted “significant crepitations” in both first carpometacarpal joints and crepitation in

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both knees, but no active synovitis.

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Plaintiff’s elbows, and mild tenderness in Plaintiff’s back on palpation.

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Dr. Colceriu concluded that degenerative arthritis was “the most likely etiology of

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[Plaintiff’s] polyarthralgias,” or joint pains. (Tr. 346.) He noted that “MS Contin 15”

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had “helped the pain but not significantly.” (Tr. 345.) Dr. Colceriu ordered an x-ray of

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Plaintiff’s cervical spine, which revealed multilevel degenerative disc disease, mild at C-

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3-C-4 and C7-T1, and “moderate to moderately severe at the C4-C5 through C6-C7

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levels,” with reversal of the normal lordotic curvature of the spine related to muscle

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spasm, and “moderate to moderately severe bilateral neural foraminal narrowing at the

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C3-C4 through C6-C7 levels.” (Tr. 356.)

(Tr. 346.)

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He noted full range of motion in
(Id.)

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At a November 2010 appointment, Dr. Colceriu noted that Plaintiff did not have

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“radicular symptoms in terms of neuropathic changes in her arms or decreased strength.”

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(Tr. 388.) Plaintiff reported that fentanyl had helped her pain “tremendously,” but she

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was not pain free. (Id.) On examination, Plaintiff was in no acute distress, she had no

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palpable synovitis, her left shoulder had an improved range of motion, her neck had

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normal flexion, extension, and rotation, she had mild to moderate tenderness in her back

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on palpation, crepitation in her lower extremities, and no synovitis.

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Dr. Colceriu increased Plaintiff’s dosage of fentanyl. (Id.)

(Tr. 389.)

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Dr. Colceriu ordered a cervical MRI in December 2010. (Tr. 390-91.) The MRI

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showed mild narrowing of the spinal cord neuroforaminal throughout C2 through C7,

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“mild narrowing of the central spinal canal and flattening of the anterior [spinal] cord” at

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C4-5, and a disc osteophyte complex (bone spur) and bilateral facet arthrosis that caused

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“mild narrowing of the central spinal canal and flattening of the anterior [spinal] cord . . .

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[at C6-7].”

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neuroforamen.” (Id.)

(Tr. 390-91.)

The MRI also revealed “severe narrowing of the left

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During a February 28, 2011 appointment, Dr. Colceriu noted that Plaintiff had an

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episode of sciatica and heel pain several weeks before the appointment when she moved

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to a new place. (Tr. 386.) Plaintiff reported that she was “quite happy” with pain control

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from fentanyl, and she did not have any episodes of joint swelling.

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examination, Plaintiff ambulated without assistance and she had no synovitis in her hands

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or wrists. (Tr. 386.) Plaintiff had tenderness to palpation and “mild crepitation in fourth

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metacarphophalangeals bilaterally.” (Tr. 386-87.) She had an average range of motion in

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her shoulder, mild tenderness in her lumbar spine on palpation, lower extremity

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crepitation, and tenderness in her right heel on palpation. (Tr. 387.) Dr. Colceriu noted

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“that Plaintiff’s “cervical spondylitic symptoms [had] gone away.” (Id.) Dr. Colceriu

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diagnosed diffuse osteoarthritis and degenerative joint disease in multiple locations in

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Plaintiff’s lower back, cervical spine, and hands “with no evidence of inflammatory

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(Id.)

On

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arthropathy.” (Id.) Dr. Colceriu increased Plaintiff’s dosage of fentanyl and continued

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her prescription for morphine. (Tr. 387.)

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On April 28, 2011, Dr. Colceriu noted that Plaintiff’s pain was “better controlled”

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with the increased dosage of fentanyl, but that Plaintiff had stopped using it due to side

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effects and had increased her use of morphine. (Tr. 384.) Plaintiff reported falling on her

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left knee and sustaining some bruising, but she could walk without assistance. (Id.) On

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examination, Dr. Colceriu noted that Plaintiff walked without assistance, had no synovitis

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in her upper extremities, her lower extremities had some crepitation and bruising, but no

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instability.

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throughout.

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recommended that Plaintiff restart fentanyl at the lower dose she had previously

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tolerated, and that she reduce morphine. (Id.)

(Id.)
(Id.)

He also observed that Plaintiff’s back was tender to palpation
Dr. Colceriu diagnosed diffuse degenerative joint disease and

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On June 6, 2011, Dr. Colceriu noted that Plaintiff was doing much better on her

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new doses of fentanyl and morphine. (Tr. 382.) Plaintiff did not report any side effects

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from the new combination of medications and her “pain [was] better controlled overall.”

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(Id.) Plaintiff had moved into a two-story house and reported difficulty climbing stairs.

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(Id.) On examination, Plaintiff walked unassisted with a slow gait. (Id.) She had no

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synovitis in her upper extremities, a full range of motion in her upper extremities,

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moderate tenderness in her back on palpation, “severe crepitation in both knees,” but no

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lateral instability, no warmth, and no redness. (Tr. 382.) Dr. Colceriu administered a

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corticosteroid injection to Plaintiff’s left knee.

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degenerative joint disease and noted that Plaintiff was “doing much better clinically on a

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combination of fentanyl 37 mcg and morphine sulfate 15 mg ER.” (Id.)

(Tr. 383.)

He assessed diffuse

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In August 2011, Dr. Colceriu noted that Plaintiff had reported that the

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corticosteroid injection in the left knee helped for a week and then her pain returned “to

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normal.” (Tr. 562.) Plaintiff also reported that her left knee buckled more frequently,

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she had problems climbing stairs and walking in a straight line, she limped all the time,

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and had unbearable pain daily. (Id.) Plaintiff stated that morphine and fentanyl helped

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“minimally.” (Id.) On examination, Dr. Colceriu noted that Plaintiff limped, she had

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“severe grinding and more than 25 degrees of valgus on the left but 10 degrees of valgus

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on the right with crepitation on the right . . . .” (Id.) He also noted that she had no

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warmth over her joints. (Id.) Dr. Colceriu assessed “diffuse osteoarthritis/degenerative

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joint disease including the lower spine, cervical spine, and knees.” (Id.) He noted that

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Plaintiff’s pain was “uncontrolled,” and stated that because pain medication, steroids, and

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range of motion exercises did not help, he would increase her dose of fentanyl and refer

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her for possible total knee replacement surgery. (Id.) Dr. Colceriu also stated that he

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would “take into consideration the fact that the left knee ha[d] an exaggerated valgus

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angle, which ma[de] the mechanics of her mobility even worse.” (Tr. 562.)

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During a November 2, 2011 examination, Plaintiff reported joint pain and

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stiffness, but no swelling. (Tr. 559.) Plaintiff was in no acute distress and ambulated

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independently. (Tr. 560.) She had joint tenderness in her upper extremities with no

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active synovitis, tender paraspinal muscles, and crepitation in both knees. (Id.) Plaintiff

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walked with a limp and had a normal hand grip. (Id.) Dr. Colceriu noted that Plaintiff

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“failed” range of motion exercises and “steroid trial.” (Id.) He continued Plaintiff’s

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prescriptions for fentanyl and morphine. (Id.)

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At a February 24, 2012 appointment with Dr. Colceriu, Plaintiff complained of

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pain her in knees and back that was worse with activity and cold. (Tr. 556.) Plaintiff

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reported joint pain and stiffness, but no swelling or muscle pain. (Id.) She stated that

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physical therapy had helped in 2010. (Id.) On examination, Dr. Colceriu noted that

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Plaintiff was in no acute distress and ambulated independently with a mild limp.

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(Tr. 557.) She had joint tenderness in her upper extremities with no synovitis. (Id.) She

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had non-focal tenderness in her spine, crepitation in both knees, and a normal hand grip.

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(Id.) Dr. Colceriu continued Plaintiff’s prescriptions for medications and stated that he

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would refer her to physical therapy when she returned from Sierra Vista.2 (Id.)

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Plaintiff planned to move to Sierra Vista, Arizona, to assist her brother who was
ill. (Tr 588, 592.)
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During a July 19, 2012 appointment, Plaintiff reported that she had been “run over

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by a car” and contracted an infection that required hospitalization. (Tr. 552.) She

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reported continued pain that was worse in her back. (Id.) She had stopped using

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morphine and was using “short acting pain pills” and fentanyl. (Id.) She reported that

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her pain was better with medication. (Id.) On examination, Plaintiff was in no acute

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distress and ambulated independently. (Tr. 554.) She had mild joint tenderness in her

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upper extremities, no synovitis or atrophy, a full range of motion in both of her elbows, a

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normal hand grip, crepitation in both knees, no active synovitis in her lower extremities,

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and walked with a limp. (Id.) Dr. Colceriu assessed osteoarthritis and cellulitis in her

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Plaintiff’s left leg. (Id.)

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Plaintiff returned to Dr. Colceriu for a follow up on September 20, 2012.

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(Tr. 548.) She reported that she had surgery for her left leg infection. (Id.) She reported

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that she mainly had pain in her lower left extremity, but also had pain in her back and

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hands. (Id.) Her pain was better with medication and worse with ambulation and

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activity. (Id.) She did not report any joint swelling or redness. (Id.) On examination,

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Plaintiff was in no acute distress and ambulated independently. (Tr. 549.) She had

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tenderness in the joints of her upper extremities, but no active synovitis or atrophy. (Id.)

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She had a full range of motion in both elbows and a normal grip. (Id.) Plaintiff had

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tenderness in her paraspinal muscles, crepitation in both knees, no active synovitis in her

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lower extremities, and walked with a limp. (Id.) Dr. Colceriu noted that Plaintiff had

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osteoarthritis at several sites and prescribed fentanyl and ibuprofen. (Tr. 550.)

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2.

Treatment for Mental Impairments

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In December 2009, Plaintiff had an initial psychiatric examination at the Pinal

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Hispanic Council in Coolidge, Arizona. (Tr. 317-21.) Plaintiff reported experiencing

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depression for the previous seven years.

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oriented, she had good hygiene, appropriate affect, a depressed mood, normal speech,

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logical associations, unremarkable stream of thought, non-psychotic thought content, no

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thoughts of harm, normal perception, good concentration, intact memory, and good fund

(Tr. 317.)

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On examination, Plaintiff was

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of knowledge, insight, and judgment. (Tr. 319-20.) Plaintiff was diagnosed with major

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depressive disorder, moderate, recurring (Tr. 320), and prescribed Lexapro and Ambien.

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(Tr. 321.)

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On September 14, 2010, a psychiatric nurse practitioner (NP), Judy Yurgel, noted

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that Plaintiff’s mental status examination was unremarkable. (Tr. 402.) She found that

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Plaintiff was alert and oriented. (Id.) She had good concentration, unremarkable speech

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and thought process, no destructive thoughts, intact memory, and good insight and

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judgment. (Id.) NP Yurgel diagnosed major depressive disorder, discontinued Ambien

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due to side effects, and prescribed Vistaril. (Id.) On April 2, 2011, NP Yurgel again

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described Plaintiff’s mental status examination as unremarkable. (Tr. 397.) She noted

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that Plaintiff was alert and oriented. (Id.) She had good concentration, no psychosis,

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unremarkable speech and thought process, no thoughts of harm, intact memory, and good

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insight and judgment.

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prescribed Lexapro and Trazadone. (Id.) A July 8, 2011 progress note indicates that

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Plaintiff was alert and oriented. (Tr. 462.) She had good hygiene, good eye contact,

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normal motor activity, appropriate affect, a euthymic mood, normal speech, logical

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associations, an unremarkable stream of thought, non-psychotic thought without

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depressive content, no thoughts of harm, normal perception, good concentration, intact

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memory, good fund of knowledge, and good insight and judgment. (Tr. 464-65.)

(Id.)

NP Yurgel diagnosed major depressive disorder and

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After Plaintiff moved to Phoenix, she received treatment at Terros from December

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2011 through September 2012. (Tr. 434, 569-632.) On December 6, 2011, Plaintiff

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reported that she had sadness daily and that she sometimes felt like she could cry all day.

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(Tr. 631.) She reported that she lived with her adult daughter and that she provided for

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her, cooked for her, and cared for “the animals.” (Id.) Plaintiff reported that she got

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along well with others, loved to cook, and that family values were important to her.

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(Tr. 614.) The progress note indicates that Plaintiff was calm, had good interaction, and a

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depressed mood. (Tr. 625) She was not a danger to herself or others. (Tr. 624.) Plaintiff

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had an appropriate affect, articulate speech, relevant thought process, depressive thought

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content, good recall of events, average intelligence, limited judgment, and fair insight.

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(Tr. 618.)

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In December 2011, a progress note from Terros indicates that Plaintiff had “slight

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progress.” (Tr. 606.) Plaintiff was encouraged to attend a women’s counseling group.

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(Tr. 605.)

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December 16, 2011, Plaintiff reported that she slept too much, did not go out in public,

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cried a lot, wanted to be by herself, had “horrible” concentration, and mood swings.

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(Tr. 594.) The progress note indicates that Plaintiff was alert and oriented. (Tr. 596-97.)

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She had good eye contact, normal motor activity, a tearful affect, an anxious and

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depressed mood, normal speech, logical thought process, unremarkable stream of

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thought, non-psychotic thoughts, depressive thought content, no thoughts of harm,

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normal perception, poor concentration, intact memory, and good intellect, insight, and

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judgment. (Tr. 596-98.) Plaintiff was diagnosed with major depressive disorder in

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partial remission. (Tr. 598.)

Her diagnosis remained major depressive disorder.

(Tr. 602-04.)

On

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On January 2, 2012, Plaintiff left a voice mail message for her healthcare provider

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at Terros stating that she need to reschedule her January 13, 2012 appointment because

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she was going to be out of town for three months caring for a terminally ill family

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member. (Tr. 592.) Plaintiff’s appointment was reset to January 6, 2012. During that

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appointment, Plaintiff reported that her brother who lived in Sierra Vista was sick and

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wanted her to help manage his tax preparation business. (Tr. 588.) Plaintiff did not

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report any side effects from her medication. (Id.) The progress note indicates that

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Plaintiff was alert and oriented. (Tr. 588-89.) She had good appearance, good eye

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contact, normal motor activity, appropriate affect, euthymic mood, normal speech, logical

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thought process, no psychotic or depressive thought content, no thoughts of harm, normal

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perception, good concentration, intact memory, and good intelligence, insight, and

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judgment.

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remission. (Tr. 590.)

(Tr. 589.)

She was diagnosed with major depressive disorder in partial

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On March 22, 2012, a Terros provider telephoned Plaintiff for a wellness check.

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(Tr. 587.) Plaintiff reported that she planned to attend the women’s counseling group

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when she “moved back” after helping her brother. (Id.) The progress note indicates that

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Plaintiff had been “going back and forth to help her brother.” (Id.)

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On March 23, 2012, Plaintiff had an appointment with Beatrice Yang, M.D.

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(Tr. 584-86.) Plaintiff reported no side effects from her medication. (Tr. 584.) Plaintiff

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was alert and oriented. (Tr. 584-85.) She had good appearance, good eye contact,

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normal motor activity, tearful affect, euthymic mood, normal speech, logical thought

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process, non-psychotic and non-depressive thought content, no thoughts of harm, normal

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perception, good concentration, intact memory, and good intelligence, insight, and

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judgment. (Tr. 585.) Dr. Yang diagnosed major depressive order in partial remission.

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(Tr. 586.)

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During a June 11, 2012 telephonic wellness check, Plaintiff reported no side

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effects from her medication. (Tr. 580.) During a June 13, 2012 appointment with

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Dr. Yang, Plaintiff was alert and oriented. (Tr. 578.) She had good eye contact, normal

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motor activity, appropriate affect, euthymic mood, normal speech, logical thought

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process, non-psychotic and non-depressive thought content, no thoughts of harm, normal

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perception, good concentration, intact memory, and good intelligence, insight, and

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judgment. (Id.) Dr. Yang diagnosed major depressive disorder in partial remission.

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(Tr. 579.)

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Plaintiff next saw Dr. Yang on September 10, 2012. (Tr. 570.) She was alert and

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oriented. (Tr. 571.) She had good eye contact, normal motor activity, appropriate affect,

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euthymic mood, normal speech, logical thought process, unremarkable stream of thought,

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non-psychotic and non-depressive thought content, no thoughts of harm, normal

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perception, good concentration, intact memory, and good intelligence, insight, and

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judgment.

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remission. (Tr. 572.)

(Id.)

Plaintiff was diagnosed with major depressive disorder in partial

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B.

Opinion Evidence
1.

William Chaffee, M.D.

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On August 31, 2011, Plaintiff saw William Chaffee, M.D., for a physical

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examination related to her application for disability benefits. (Tr. 444-48.) Dr. Chaffee

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noted that he reviewed Dr. Colceriu’s progress notes from June 2011, the report of a

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December 2010 cervical MRI scan, 2011 x-rays of Plaintiff’s knees, and a July 14, 2011

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function report that Plaintiff completed. (Tr. 444, 447.) Plaintiff complained of chronic

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joint pain, leg pain, and poor sleep. (Tr. 444-45.) On examination, Plaintiff had normal

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range of motion in her cervical, thoracic, and lumbar spine. (Tr. 446.) Her hip, knee,

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ankle, shoulder, elbow, wrist, and elbow joints were “within normal limits bilaterally.”

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(Id.) She had a normal gait and station and could squat and heel-toe walk normally. (Id.)

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She had “straight leg raising 60 degrees right and left without pain supine.” (Tr. 447.)

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Dr. Chaffee found that Plaintiff had a genu valgus bilaterally, no swelling or crepitation

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in either knee, and slight tenderness in both wrists without swelling. (Id.) Plaintiff had

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normal muscle tone and bulk, and full strength in her upper and lower extremities,

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including “grip strength and pinch strength.”

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polyarthralgias and opined that Plaintiff did not have a condition that would impose

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limitations for twelve continuous months. (Id.)

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2.

(Id.)

Dr. Chaffee diagnosed chronic

Sharon Steingard, D.O.

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On August 4, 2011, Plaintiff was examined by Sharon Steingard, D.O., for her

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disability benefits application. (Tr. 433-39.) Dr. Steingard noted that she reviewed an

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adult function report that Plaintiff completed and progress notes from the Pinal Hispanic

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Council. (Tr. 433.) Plaintiff reported that she was stressed and depressed. (Tr. 434.)

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She described herself as forgetful and distracted. (Id.) She stated that she got along

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“fairly well” with her adult children.

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psychiatric hospitalization. (Id.) She reported that she lived with her adult daughter.

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(Tr. 435.) During a typical day, Plaintiff spent forty-five minutes on the computer, read

(Id.)

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Plaintiff had no suicidal attempts or

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the bible, listened to music, cared for household pets, and did light cooking. (Tr. 436.)

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She stated that she sometimes needed reminders to maintain her personal hygiene. (Id.)

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On examination, Plaintiff was clean, appropriately dressed, and alert. (Tr. 436.)

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She had normal posture and a normal gait and station. (Id.) After sitting during the

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interview, she was stiff on standing. (Id.) Plaintiff had good eye contact, satisfactory

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attention, unremarkable speech, logical associations, and unremarkable stream of

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thought. (Tr. 436.) She was tearful and cried the entire interview, she seemed depressed,

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and had a sad facial expression and a labile affect. (Id.) Plaintiff was not helpless or

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hopeless and was goal-directed to continue treatment. (Id.) She had some suicidal

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ideation without any intention or plan to hurt herself. (Id.) She had limited insight and

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judgment, a poor general fund of knowledge, and trouble with memory.

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Dr. Steingard diagnosed Plaintiff with major depressive disorder, recurrent. (Tr. 437.)

(Id.)

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Dr. Steingard completed a Psychological/Psychiatric Medical Source Statement.

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(Tr. 438-39.) In areas of understanding and memory, Dr. Steingard found that Plaintiff

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would need to have some instructions repeated, and that she would have more problems

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with detailed instructions or complicated procedures. (Tr. 438.) She also found that

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Plaintiff had a limited ability to multitask, “displayed some trouble with frustration

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tolerance,” “got a little agitated when asked for some simple general information,” and

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“could not recall any objects at three minutes.” (Id.)

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In areas of sustained concentration and persistence, Dr. Steingard found that

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Plaintiff’s “persistence [was] likely to be limited by her limited frustration tolerance.”

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(Id.)

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[a]ttention and concentration were adequate over the course of the interview.” (Id.) In

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areas of social interaction, Dr. Steingard noted that Plaintiff displayed “[e]motional

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lability . . . ,” and she “was almost constantly tearful and crying.

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inappropriate behavior in the work place.” Dr. Steingard also noted that Plaintiff would

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“likely be somewhat irritable with supervisors.” (Id.) In areas of adapting to change,

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Dr. Steingard noted that Plaintiff had a poor ability to respond appropriately to changes in

She “appear[ed] capable of carrying out some simple instructions[, and her]

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This would be

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the work setting. (Tr. 439.) She opined that Plaintiff’s concentration appeared adequate

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for typical work place hazards.

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perform “some limited problem solving, but [was] likely to be easily overwhelmed.”

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(Id.)

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III.

(Id.)

Dr. Steingard also found that Plaintiff could

The Administrative Hearing

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Plaintiff was in her early fifties at the time of the administrative hearing and the

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ALJ’s decision. (Tr. 164.) She had the equivalent of a high school education. (Tr. 170.)

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Plaintiff had past relevant work as a census enumerator, cashier, childcare provider,

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office assistant, office manager, and billing clerk. (Tr. 70-71.)

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At the administrative hearing, Plaintiff testified she stopped working for Fry’s

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Marketplace in 2008 because she had pain in her knees, and her feet would swell.

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(Tr. 58.) She later testified that she was fired from Fry’s Marketplace for misuse of

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coupons. (Tr. 61.) Plaintiff stated that she was unable to work because she could not

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“stand or sit long, for long hours.” (Tr. 55.) She explained that she could not stand for

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prolonged periods because her knees would swell. (Id.) She could not sit for long

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periods because it caused pain in her low back and, if she sat for too long, it was hard for

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her to get up. (Id.) She also testified that she had arthritis in her hands and woke up with

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“a lot of swelling . . . and pain in [her] hands.” (Tr. 56.) She stated that she had “a lot of

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weakness also in [her] hands when it [came] to lifting or holding things in [her] hands.”

20

(Id.) She testified that medication helped. (Id.) Plaintiff also testified that she could not

21

work because she was uncomfortable around other people — “I just get frustrated and

22

irritated at all the people around me” — and had difficulty concentrating. (Tr. 60-61.)

23

She testified that medication helped. (Id.)

24

Plaintiff estimated that she could stand or walk for up to fifteen minutes at a time.

25

(Tr. 67-68.) Plaintiff testified that she elevated her leg three or four times a day, for

26

about an hour at a time. (Tr. 67.) She stated that she could perform “light housework,”

27

but could not vacuum or mop. (Id.) Plaintiff could sit at a computer for up to two hours.

28

(Tr. 57.) Plaintiff testified that, after a car accident in 2012, she used a walker or a

- 13 -

1

wheelchair to get around. (Tr. 59.) The ALJ noted that Plaintiff was not using an

2

assistive device at the administrative hearing; Plaintiff stated that her walker was in the

3

car. (Id.)

4

A vocational expert also testified at the administrative hearing. (Tr. 68-77.) The

5

ALJ’s disability determination was not based on the vocational expert’s testimony,

6

because, as discussed below, the ALJ concluded her analysis at step two of the five-step

7

sequential evaluation process, see Sections IV.A and IV.B, by finding that Plaintiff did

8

not have any severe impairments. The Court does not discuss the vocational expert’s

9

testimony because it is not relevant to determining whether the ALJ erred at step two of

10

the sequential evaluation process.

11

IV.

The ALJ’s Decision

12

A claimant is considered disabled under the Social Security Act if she is unable

13

“to engage in any substantial gainful activity by reason of any medically determinable

14

physical or mental impairment which can be expected to result in death or which has

15

lasted or can be expected to last for a continuous period of not less than 12 months.” 42

16

U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 1382c(a)(3)(A) (nearly identical standard for

17

supplemental security income disability insurance benefits). To determine whether a

18

claimant is disabled, the ALJ uses a five-step sequential evaluation process. See 20

19

C.F.R. §§ 404.1520, 416.920.

20

A.

21

In the first two steps, a claimant seeking disability benefits must initially

22

demonstrate (1) that she is not presently engaged in a substantial gainful activity, and

23

(2) that her medically determinable impairment or combinations of impairments is severe.

24

20 C.F.R. §§ 404.1520(b) and (c), 416.920(b) and (c). If a claimant meets steps one and

25

two, there are two ways in which she may be found disabled at steps three through five.

26

At step three, she may prove that her impairment or combination of impairments meets or

27

equals an impairment in the Listing of Impairments found in Appendix 1 to Subpart P of

28

20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii).

The Five-Step Sequential Evaluation Process

- 14 -

20 C.F.R. §§ 404.1520(d),

1

416.920(d). If so, the claimant is presumptively disabled. If not, the ALJ determines the

2

claimant’s residual functional capacity (RFC). 20 C.F.R. §§ 404.1520(e), 416.920(e). At

3

step four, the ALJ determines whether a claimant’s RFC precludes her from performing

4

her past relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant establishes

5

this prima facie case, the burden shifts to the government at step five to establish that the

6

claimant can perform other jobs that exist in significant numbers in the national economy,

7

considering the claimant’s RFC, age, work experience, and education.

8

§§ 404.1520(g), 416.920(g). If the government does not meet this burden, then the

9

claimant is considered disabled within the meaning of the Act.

20 C.F.R.

10

B.

11

Applying the five-step sequential evaluation process, the ALJ found that Plaintiff

12

had not engaged in substantial gainful activity since the alleged disability onset date,

13

September 15, 2008.

14

following medically determinable impairments: “arthritis, osteoarthritis, obesity,

15

hypertension, degenerative disc disease of the cervical spine with cervical spondylosis

16

and facet arthrosis, lung nodule due to coccidiomycosis, dysfunction of the major joints,

17

polyarthralgias, gallstones status post cholecystectomy, left leg wound and cellulitis

18

status post debridement, depression, bipolar II disorder, substance addiction disorder, in

19

full sustained remission by report, and prescription narcotic dependency (20

20

C.F.R. 404.1521 et seq.).” (Tr. at 27-28.) The ALJ found that Plaintiff did not have an

21

impairment or combination of impairments that significantly limited (or was expected to

22

significantly limit) her ability to perform basic work-related activities for twelve

23

consecutive months and, therefore, she did not have a severe impairment or combination

24

of impairments. (Tr. 28.) The ALJ concluded her analysis at step two and determined

25

that Plaintiff had not been under a disability as defined in the Act from September 15,

26

2008 through the date of her decision. (Tr. 36.) Therefore, the ALJ denied Plaintiff’s

27

application for a period of disability and disability insurance benefits. (Id.)

The ALJ’s Application of the Five-Step Evaluation Process

(Tr. 27.)

At step two, the ALJ found that Plaintiff had the

28

- 15 -

1

V.

Standard of Review

2

The district court has the “power to enter, upon the pleadings and transcript of

3

record, a judgment affirming, modifying, or reversing the decision of the Commissioner,

4

with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). The district

5

court reviews the Commissioner’s final decision under the substantial evidence standard

6

and must affirm the Commissioner’s decision if it is supported by substantial evidence

7

and it is free from legal error. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996);

8

Ryan v. Comm’r of Soc. Sec. Admin., 528 F.3d 1194, 1198 (9th Cir. 2008). Even if the

9

ALJ erred, however, “[a] decision of the ALJ will not be reversed for errors that are

10

harmless.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

11

Substantial evidence means more than a mere scintilla, but less than a

12

preponderance; it is “such relevant evidence as a reasonable mind might accept as

13

adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971)

14

(citations omitted); see also Webb v Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). In

15

determining whether substantial evidence supports a decision, the court considers the

16

record as a whole and “may not affirm simply by isolating a specific quantum of

17

supporting evidence.”

18

quotation and citation omitted).

19

testimony, determining credibility, and resolving ambiguities. See Andrews v. Shalala,

20

53 F.3d 1035, 1039 (9th Cir. 1995). “When the evidence before the ALJ is subject to

21

more than one rational interpretation, [the court] must defer to the ALJ’s conclusion.”

22

Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004) (citing

23

Andrews, 53 F.3d at 1041).

24

VI.

Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (internal
The ALJ is responsible for resolving conflicts in

Plaintiff’s Claims

25

Plaintiff argues that the ALJ erred by failing to provide clear and convincing

26

reasons for discounting Plaintiff’s subjective complaints, and by relying on the opinion of

27

Dr. Chaffee, but rejecting the opinion of Dr. Steingard. Plaintiff argues that based on

28

these errors in assessing the evidence, the ALJ further erred by concluding that Plaintiff’s

- 16 -

1

impairments were not severe. (Doc. 24 at 2.) The Commissioner argues that the ALJ did

2

not err. (Doc. 31.) The Court first considers the ALJ’s assessment of the evidence, and

3

then considers the ALJ’s step-two determination.

4

A.

5

Plaintiff asserts that the ALJ erred by discrediting her symptom testimony without

6

providing clear and convincing reasons. (Doc. 24 at 15.) An ALJ engages in a two-step

7

analysis to determine whether a claimant’s testimony regarding her pain or other

8

symptoms is credible. See Treichler v. Comm’r of Soc. Sec., 775 F.3d 1090, 1102 (9th

9

Cir. 2014); see also Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014) (citing

10

The ALJ’s Credibility Determination

Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)).

11

“First, the ALJ must determine whether the claimant has presented objective

12

medical evidence of an underlying impairment ‘which could reasonably be expected to

13

produce the pain or other symptoms alleged.’” Lingenfelter, 504 F.3d at 1036 (quoting

14

Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). The claimant is not

15

required to show objective medical evidence of the pain itself or of a causal relationship

16

between the impairment and the symptom. Smolen, 80 F.3d at 1282. Instead, the

17

claimant must only show that an objectively verifiable impairment “could reasonably be

18

expected” to produce her pain. Lingenfelter, 504 F.3d at 1036 (quoting Smolen, 80 F.3d

19

at 1282); see also Carmickle v. Comm’r of Soc. Sec., 533 F.3d at 1160B61 (9th Cir. 2008)

20

(“requiring that the medical impairment ‘could reasonably be expected to produce’ pain

21

or another symptom . . . requires only that the causal relationship be a reasonable

22

inference, not a medically proven phenomenon”).

23

Second, if a claimant shows that she suffers from an underlying medical

24

impairment that could reasonably be expected to produce her pain or other symptoms, the

25

ALJ must “evaluate the intensity and persistence of [the] symptoms” to determine how

26

the symptoms, including pain, limit the claimant’s ability to work.

27

C.F.R. § 404.1529(c)(1). In making this evaluation, the ALJ may consider the objective

28

medical evidence, the claimant’s daily activities, the location, duration, frequency, and

- 17 -

See 20

1

intensity of the claimant’s pain or other symptoms, precipitating and aggravating factors,

2

medication taken, and treatments for relief of pain or other symptoms.

3

C.F.R. § 404.1529(c); Bunnell, 947 F.2d at 346.

See 20

4

At this second evaluative step, the ALJ may reject a claimant’s testimony

5

regarding the severity of her symptoms only if the ALJ “makes a finding of malingering

6

based on affirmative evidence,” Lingenfelter, 504 F.3d at 1036 (quoting Robbins v. Soc.

7

Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006)), or if the ALJ offers “clear and

8

convincing reasons” for finding the claimant not credible.3 Carmickle, 533 F.3d at 1160

9

(quoting Lingenfelter, 504 F.3d at 1036). Because the ALJ did not specifically find

10

evidence of malingering, she was required to provide clear and convincing reasons for

11

concluding that Plaintiff’s subjective complaints were not credible.

12

1.

Boilerplate Rationale

13

Plaintiff asserts that the ALJ erred by using “meaningless boilerplate” to discount

14

her credibility. (Doc. 24 at 15.) Plaintiff specifically argues that the ALJ stated that

15

Plaintiff’s “medically determinable impairments could reasonably be expected to cause

16

only some of the symptoms alleged,” but did not specify which symptoms, and then

17

found that Plaintiff’s “statements concerning the intensity, persistence and limiting

18

effects of these symptoms are not credible to the extent that they are inconsistent with the

19

finding that the claimant has no severe impairment or combination of impairments.”

20

(Doc. 24 at 15-16 (citing Tr. 30).)

21

As Plaintiff argues, and the Commissioner appears to agree (Doc. 31 at 11), this

22

circular reasoning alone is insufficient to support the ALJ’s credibility determination.

23

See Leitheiser v. Astrue, 2012 WL 967647, at *9 (D. Or. Mar. 16, 2012) (stating that

24

discounting “a claimant’s credibility because it is inconsistent with a conclusion that must

25

itself address the claimant’s credibility is circular reasoning and is not sustained by this

26

court”); Hale v. Astrue, 2011WL 6965856, at *4 (D. Or. Nov. 30, 2011) (same).

27
3

28

The Ninth Circuit has rejected the Commissioner’s argument (Doc. 31 at 10-11.)
that a lesser standard than “clear and convincing” should apply. See Garrison, 759 F.3d
at 1015 n.18.
- 18 -

1

Accordingly, the Court considers whether the ALJ provided other legally sufficient

2

reasons for discounting Plaintiff’s subjective complaints.

3

2.

Plaintiff’s Activities

4

The ALJ discounted Plaintiff’s subjective complaints because she “engaged in a

5

somewhat normal level of daily activities and interests.” (Tr. 29.) The ALJ noted that

6

Plaintiff performed some household chores, fed and played with her pets, shopped,

7

managed her finances, visited with others, socialized on the phone and computer, went

8

out alone, regularly attended church, visited her son in Phoenix, and completed her

9

activities of daily living. (Id.) Plaintiff argues that her participation in these activities is

10

not a legally sufficient reason for discounting her credibility because the ALJ did not find

11

that Plaintiff spent a substantial part of her day engaged in activities that were

12

inconsistent with her allegations of disabling limitations. (Doc. 24 at 17 (citing Vertigan

13

v. Halter, 260 F.3d 1044, 1049-50 (9th Cir. 2001) (stating that the fact a claimant engages

14

in normal daily activities “does not in any way detract from [her] credibility as to [her]

15

overall disability”).)

16

Even if it would have been error for the ALJ to discount Plaintiff’s credibility

17

solely on the basis of her “somewhat normal level of daily activities,” see Vertigan 260

18

F.3d at 1050, the ALJ did not base her credibility determination on Plaintiff’s

19

participation in activities alone. Rather, as the Commissioner notes (Doc. 31 at 16), the

20

ALJ noted inconsistencies in Plaintiff’s description of her activities. (Tr. 29 (citing

21

Admin. Hrg. Exs. 5E and 14E).)4

22

administrative hearing that she was uncomfortable and became frustrated around people.

23

(Tr. 29.) However, in November 2010 and July 2011 Function Reports, Plaintiff stated

24

that she did not like to be alone. (Tr. 189, 237.) In those reports Plaintiff also stated that,

25

on a daily basis, she socialized with others in person, on the phone, or on the computer.

26

(Tr. 190, 234.) She also stated that she attended church and went shopping once or twice

As the ALJ noted, Plaintiff testified at the

27
28

4

Administrative Hearing exhibits 5E and 14E are located at Tr. 186-194 and 23139, respectively.
- 19 -

1

a month. (Tr. 190, 234-35.) She indicated that she got along well with authority figures.

2

(Tr. 192, 237.) A treatment note indicates that Plaintiff reported she “generally g[ot]

3

along with people.” (Tr. 29 (citing Admin. Hrg. Ex. 1F at 22).)

4

As part of the overall disability analysis, and in weighing various allegations and

5

opinions, the ALJ must consider whether there are any inconsistencies in the evidence,

6

such as a claimant’s inconsistent statements. See 20 C.F.R. § 404.1529(c)(4) (stating that

7

an ALJ must consider “whether there are any inconsistencies in the evidence.”); Social

8

Security Ruling (SSR) 96-7p, 1996 WL 374186, at *5 (stating that a strong indicator of

9

the credibility an individual’s statements is their consistency, both internally and with

10

other information in the record).

11

inconsistent statements regarding her daily activities to discount her credibility.

12

3.

Thus, the ALJ properly considered Plaintiff’s

Plaintiff Worked After the Alleged Onset Date

13

The ALJ also discounted Plaintiff’s credibility because she worked after the

14

alleged onset date, September 15, 2008. (Tr. 30.) The ALJ noted that Plaintiff worked

15

for four weeks for the Census Bureau in 2009. (Id.) Plaintiff stated that she left the job

16

because the work was finished, but she planned to be called back to work by the Census

17

Bureau in the future. (Tr. 30 (citing Admin. Hrg. Ex. 1F at 24).) The ALJ stated that

18

because there was “no evidence of a significant deterioration in the claimant’s medical

19

condition since that layoff,” it was reasonable to infer that Plaintiff’s impairments would

20

not prevent performance of that job. (Tr. 30.)

21

Plaintiff argues that her work for the Census Bureau in 2009 was not a legally

22

sufficient reason for discounting her credibility because the ALJ already determined that

23

she had not performed substantial gainful activity during the relevant period. (Doc. 24 at

24

18 (citing Tr. 27).) Plaintiff also argues that the record does not support he ALJ’s finding

25

that her condition did not deteriorate after 2009. (Doc. 24 at 18 (referring to Plaintiff’s

26

degenerative arthritis).)

27

The Court rejects Plaintiff’s arguments. First, the ALJ’s finding is consistent with

28

the applicable regulations, which provide that “[e]ven if the work you have done was not

- 20 -

1

substantial gainful activity, it may show that you are able to do more work than you

2

actually did.” 20 C.F.R. § 404.1571. Consistent with the regulations, the Ninth Circuit

3

has cited work activity as undermining a claim of disability. For example, in Bray v.

4

Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1221 and 1227 (9th Cir. 2009), the Ninth

5

Circuit affirmed the district court’s determination that a claimant’s allegation of disability

6

was undermined by the fact that the claimant worked part time as a “personal caregiver

7

for two years” after her alleged disability onset date. Similarly, in Greger v. Barnhart,

8

464 F.3d 968, 972 (9th Cir. 2006), the Ninth Circuit affirmed the district court’s

9

conclusion that the claimant was not disabled when he “was able to continue his past

10

work activities as a contractor” after his alleged disability onset date.

11

Second, the ALJ’s conclusion that Plaintiff’s condition (degenerative arthritis) did

12

not significantly deteriorate after 2009 is supported by substantial evidence in the record.

13

The record includes evidence that Plaintiff’s examination findings were unremarkable

14

with some tenderness in her back and joints, and a full or mildly reduced range of motion

15

in her back and extremities. (Tr. 346, 349, 352, 366, 383, 384, 386-87, 388-89, 403, 407,

16

412, 450, 487, 549, 554, 557, 560, 688.) Additionally, imaging studies and x-rays after

17

2009 showed mostly normal findings, with some mild to moderate findings. (Tr. 353,

18

356, 390-91, 403 (mild arthritic changes in the knees), 441 (normal bony architecture and

19

joints in the knee), 470 (mild arthritic changes in the knee), 472 (mild tricompartment

20

osteoarthritic degenerative changes).) Although the record could be interpreted more

21

favorably to Plaintiff, the Court “must uphold the ALJ’s decision where the evidence is

22

susceptible to more than one rational interpretation.” Magallanes v. Bowen, 881 F.2d

23

747, 750 (9th Cir. 1989); see Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1198

24

(9th Cir. 2004).

25

significantly deteriorate after 2009 is supported by substantial evidence in the record.

Thus, the ALJ’s determination that Plaintiff’s condition did not

26

The ALJ also discounted Plaintiff’s credibility because she continued to apply for

27

cashiering and office jobs after the alleged disability onset date. (Tr. 30.) The ALJ stated

28

that the “fact that the claimant continued to look for work, even part time, demonstrates

- 21 -

1

the claimant believed she had some capacity to work, which is inconsistent with a claim

2

for disability. (Id.) Plaintiff argues that this is an insufficient reason for discounting her

3

credibility because looking for work is not necessarily inconsistent with disabling

4

limitations. (Doc. 24 at 18.) However, as discussed below, the cases Plaintiff cites to

5

support her arguments are distinguishable from this case. (Doc. 24 at 18-19.)

6

Plaintiff cites Lingenfelter, 504 F.3d at 1036-38, a case in which the court found

7

that the claimant’s credibility was not undermined by his attempt to work for nine weeks,

8

which failed because of his impairments. Here, unlike Lingenfelter, there is no objective

9

evidence that Plaintiff stopped working for the Census Bureau in 2009 because of her

10

symptoms. Rather, she reported that the work was done and that she “planned to be

11

called back . . . .” (Tr. 27, 297.) Additionally, unlike the claimant in Lingenfelter,

12

Plaintiff continued applying for “cashier jobs” and “some office jobs” (Tr. 29, 62-63)

13

after the alleged disability onset date. Plaintiff’s continued search for work was a clear

14

and convincing reason for the ALJ’s to discount her credibility. See Macri v. Chater, 93

15

F.3d 540, 544 (9th Cir. 1996) (affirming credibility determination when the claimant

16

“unsuccessfully sought work”).

17

Plaintiff also cites Lewis v. Apfel, 236 F.3d 503, 516 (9th Cir. 2001), which is

18

inapplicable because it concerned whether the claimant’s work constituted substantial

19

gainful activity, not whether the claimant’s continued work, or continued search for

20

work, after the disability onset date undermined his credibility. The three remaining

21

cases that Plaintiff cites are not relevant. (Doc. 24 at 19.) Plaintiff cites Dodrill v.

22

Shalala, 12 F.3d 915, 918 (9th Cir. 1993), which is not relevant because in that case the

23

Ninth Circuit found that the ALJ erred by failing to make specific findings to support his

24

disability determination. Here, the ALJ discussed specific facts to support her conclusion

25

that Plaintiff continued to look for work after the alleged disability onset date. (Tr. 30.)

26

Similarly, Cox v. Califano, 587 F.2d 988, 991 (9th Cir. 1978), does not apply because it

27

addressed a doctor’s release of a claimant to try to engage in limited work for vocational

28

rehabilitation, not a claimant’s continued efforts to work after the alleged onset date.

- 22 -

1

Finally, Parish v. Califano, 642 F.2d 188, 192 (6th Cir. 1981), is a Sixth Circuit case and

2

is not binding on this Court.

3

Therefore, the Court concludes that the ALJ did not err by discounting Plaintiff’s

4

credibility based on evidence that she worked for the Census Bureau and applied for

5

other work after the alleged disability onset date.

6

4.

Impairments Managed by Treatment

7

In support of her adverse credibility determination, the ALJ stated that there was

8

evidence in the record that Plaintiff’s musculoskeletal impairments of the joints and

9

cervical spine were “being managed medically, and [were] amenable to proper control by

10

adherence to recommended medical management and medication compliance.” (Tr. 30.

11

(citing Admin. Hrg. Exs. 2F at 4, 5; Ex. 5F at 3, 7, 9; Ex. 7F at 2; Ex. 28F at 7, 15).)

12

Plaintiff argues that this statement constitutes the ALJ’s opinion of the medical evidence

13

and that the ALJ did not explain how the medical evidence detracted from Plaintiff’s

14

statements about the severity of her symptoms. (Doc. 24 at 19.)

15

To support her argument, Plaintiff relies on Burrell v. Colvin, 775 F.3d 1133, 1138

16

(9th Cir. 2014).

17

determination was not supported by substantial evidence.

18

explained that the ALJ stated that the claimant’s symptom testimony was not credible to

19

the extent it was inconsistent with the ALJ’s RFC assessment, but did not provide any

20

reasons for the credibility determination.

21

“drift[ed] into a discussion of the medical evidence.” Id. The court noted that “three

22

single-spaced pages after the adverse credibility determination,” the ALJ gave some

23

reasons for the adverse credibility determination. However, the court found those reasons

24

insufficient. Id. at 1137-1140.

25

In Burrell, the court found that the ALJ’s adverse credibility

Id. at 1137.

Id. at 1135.

The court

Rather, the ALJ’s decision

Unlike the ALJ’s decision in Burrell, the ALJ in this case listed several reasons to

26

support her adverse credibility determination.

27

explained that Plaintiff’s symptom testimony was not credible because her

28

musculoskeletal impairments were being managed medically and were amenable to

- 23 -

(Tr. 29-30.)

Additionally, the ALJ

1

control by medication. (Tr. 30.) The ALJ cited specific portions of the record to support

2

her conclusion that Plaintiff’s musculoskeletal impairments were controlled with

3

treatment. (Tr. 30 (citing Tr. 30. (citing Admin. Hrg. Ex. 2F at 4, 5; Ex. 5F at 3, 7, 9;

4

Ex. 7F at 2; Ex. 28F at 7, 15).)

5

In assessing a claimant’s credibility about her symptoms, the ALJ may consider

6

“the type, dosage, effectiveness, and side effects of any medication” and treatment, other

7

than medication, that the claimant has received for relief of pain or other symptoms. 20

8

C.F.R. § 404.1529(c)(3)(iv) and (v). As the ALJ noted, the record included evidence that

9

Plaintiff’s musculoskeletal symptoms responded to treatment. (Tr. 348 (joint pain mildly

10

alleviated with oxycodone),5 Tr. 349 (shoulder abduction improved), Tr. 383 (“doing

11

much better clinically on a combination of fentanyl . . . and morphine sulfate . . . .”),

12

Tr. 387 (“cervical spondylitic symptoms have gone away . . . .”), Tr. 388 (fentanyl helped

13

Plaintiff “tremendously”), Tr. 674 (Plaintiff reported that her right knee no longer hurt

14

and that she had improved with physical therapy), Tr. 682 (Plaintiff reported that pain

15

related to physical therapy was resolved and she could perform her activities of daily

16

living).) Evidence that treatment can control a claimant’s symptoms may be a clear and

17

convincing reason to find a claimant less credible. See Warre v. Comm’r of Soc. Sec.

18

Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (stating that “[i]mpairments that can be

19

controlled effectively with medication are not disabling for purposes of determining

20

eligibility for SSI benefits.”) Because substantial evidence in the record reflects that

21

Plaintiff’s musculoskeletal symptoms were controlled with treatment, the ALJ did not err

22

in rejecting Plaintiff’s related symptom testimony on that basis.

23

Additionally, the Court rejects Plaintiff’s argument that the ALJ offered an

24

improper medical opinion by finding that Plaintiff’s musculoskeletal symptoms were

25

controlled with treatment. (Doc. 24 at 20.) Rather, she made a permissible inference

26

based on her review of the medical record. See Tommasetti v. Astrue, 533 F.3d 1035,

27
28

5

Dr. Colceriu later transferred Plaintiff to fentanyl to prevent her from becoming
addicted to oxycodone and to reduce her use of morphine. (Tr. 346, 349.)
- 24 -

1

1040 (9th Cir. 2008) (an ALJ may infer that a claimant’s “response to conservative

2

treatment undermines [claimant’s] reports regarding the disabling nature of his pain”);

3

Gonzales v Colvin, 2014 WL 465855, at *3-4 (D. Ariz. Feb. 4, 2014) (rejecting the

4

plaintiff’s argument that one of reasons the ALJ gave for rejecting a physician’s opinion

5

— the medical evidence did not support the physician’s opinion — was not an improper

6

medical opinion and concluding that the ALJ properly assessed the medical evidence as

7

required by the regulations); McKinzie v. Colvin, 2013 WL 4431034, at *5 (D. Ariz. Aug.

8

16, 2013) (concluding that the ALJ did not substitute his own medical opinion for the

9

treating physician’s opinion and finding that the ALJ’s disability determination was

10
11

based another doctor’s opinion and the plaintiff’s complaints).
5.

Subjective Complaints not Supported by Objective Evidence

12

The ALJ found that Plaintiff’s “credibility regarding the severity of her symptoms

13

[was] diminished because those allegations were greater than expected in light of the

14

objective evidence of record.”

15

sufficient reason for discounting her credibility. (Doc. 24 at 20.)

(Tr. 30.)

Plaintiff argues that this is not a legally

16

As the Commissioner notes (Doc. 31 at 7), the absence of fully corroborative

17

medical evidence cannot form the sole basis for rejecting the credibility of a claimant’s

18

subjective complaints. See Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986) (it is

19

legal error for “an ALJ to discredit excess pain testimony solely on the ground that it is

20

not fully corroborated by objective medical findings”), superseded by statute on other

21

grounds as stated in Bunnell v. Sullivan, 912 F.2d 1149 (9th Cir. 1990); see also Burch,

22

400 F.3d at 681 (explaining that the “lack of medical evidence” can be “a factor” in

23

rejecting credibility, but cannot “form the sole basis”); Rollins v. Massanari, 261 F.3d

24

853, 856-57 (9th Cir. 2001) (same). However, this was not the sole basis of the ALJ’s

25

credibility determination and the ALJ provided other legally sufficient reasons for

26

discounting Plaintiff’s symptom testimony.

27
28

- 25 -

1

6.

Routine Care

2

When assessing Plaintiff’s subjective complaints related to her mental

3

impairments, the ALJ noted that Plaintiff received treatment on an intermittent basis that

4

consisted of “routine, non-emergency medication review with medication modification

5

and some counseling for various forms of affective disorders.”

6

challenges this reason for the ALJ’s adverse credibility determination stating that “these

7

errors have already been discussed in the context of [Plaintiff’] physical impairments;

8

that discussion need not be repeated.” (Doc. 24 at 22.) Plaintiff, however, does not cite

9

to the portion of her discussion that addressed these issues. The Court is not required to

10

develop Plaintiff’s arguments. See Independent Towers of Wash. v. Wash., 350 F.3d 925,

11

929 (9th Cir. 2003) (the court will not consider any claims that were not specifically and

12

distinctly argued in a party’s opening brief). However, because the Commissioner does

13

not discuss or defend this reason for the ALJ’s adverse credibility determination (Doc. 31

14

at 10-17), the Court does not consider it when determining whether the ALJ provided

15

sufficient reasons for discounting Plaintiff’s subjective complaints.

16

7.

(Tr. 33.)

Plaintiff

Mental Health Improvement

17

The ALJ also noted that Plaintiff’s mental health improved from time to time and

18

that her mental status examinations were “essentially normal.” (Tr. 34.) Plaintiff argues

19

that these are insufficient reasons for the ALJ’s adverse credibility determination.

20

(Doc. 24 at 22-24.) The Commissioner does not defend this rationale for the ALJ’s

21

adverse credibility determination.6 (Doc. 31 at 10-17.) Accordingly, the Court does not

22

consider this reason in determining whether the ALJ provided sufficient reasons to

23

support her adverse credibility determination.

24
25
26
27
6

28

However, the Commissioner argues that the mental status examinations support
the ALJ’s determination that Plaintiff’s mental impairments were not severe. (Doc. 31 at
10.)
- 26 -

1

8.

The ALJ’s Observations

2

Finally, the ALJ discredited Plaintiff’s subjective complaints based on her

3

observations at the administrative hearing. (Tr. 29.) At the administrative hearing,

4

Plaintiff testified that she used a walker or a wheel chair when she went out. (Tr. 59.)

5

The ALJ observed that Plaintiff “presented without her walker and admitted she was able

6

to walk into the building without this device.” (Tr. 29, 59-60.) Plaintiff did not challenge

7

this reason for the ALJ’s adverse credibility determination in her opening brief.

8

(Doc. 24.)

9

The regulations and the Ninth Circuit recognize that an ALJ may consider “her

10

own recorded observations of the individual [at the administrative hearing] as part of the

11

overall evaluation of the credibility of the individual’s statements.” SSR 96-7p, 1996

12

WL 374186, at *5; Orn, 495 F.3d at 639 (while ALJ’s observations of claimant’s

13

functioning may not form the sole basis for discrediting claimant’s testimony, they may

14

be used in the “overall evaluation of the credibility of the individual’s statements”);

15

Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) (“Although this Court has

16

disapproved of so-called ‘sit and squirm’ jurisprudence, the inclusion of the ALJ’s

17

personal observations does not render the decision improper.”). Because the ALJ’s

18

observations of Plaintiff did not form the sole basis for discrediting her testimony, the

19

ALJ did not err by including her observations in the credibility analysis. See Verduzco,

20

188 F.3d at 1090.

21

9.

Conclusion

22

In summary, although the Court does not accept all of the reasons the ALJ stated

23

in support of her adverse credibility determination, the ALJ provided legally sufficient

24

reasons that are supported by substantial evidence to support her credibility determination

25

and, therefore, the Court affirms it. See Batson, 359 F.3d at 1197 (stating that the court

26

may affirm an ALJ’s overall credibility conclusion even when not all of the ALJ’s

27

reasons are upheld); Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) (stating

28

that “[e]ven if we discount some of the ALJ’s observations of [the claimant’s]

- 27 -

1

inconsistent statements and behavior . . . we are still left with substantial evidence to

2

support the ALJ’s credibility determination.”).

3

B.

4

Plaintiff also asserts that the ALJ erred by assigning significant weight to

5

Dr. Chaffee’s opinion and by rejecting Dr. Steingard’s opinions. (Doc. 24 at 26.) The

6

Court first sets forth the standards for assigning weight to medical evidence, and then

7

applies those standards to consider the weight the ALJ assigned to Dr. Chaffee’s and

8

Dr. Steingard’s opinions.

9

Weighing Medical Opinion Evidence

1.

Weight Assigned to Medical Source Opinions

10

In weighing medical source evidence, the Ninth Circuit distinguishes between

11

three types of physicians: (1) treating physicians, who treat the claimant; (2) examining

12

physicians, who examine but do not treat the claimant; and (3) non-examining physicians,

13

who neither treat nor examine the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th Cir.

14

1995). Generally, more weight is given to a treating physician’s opinion. Id. The ALJ

15

must provide clear and convincing reasons supported by substantial evidence for

16

rejecting a treating or an examining physician’s uncontradicted opinion. Id.; Reddick v.

17

Chater, 157 F.3d 715, 725 (9th Cir. 1998). An ALJ may reject the controverted opinion

18

of a treating or an examining physician by providing specific and legitimate reasons that

19

are supported by substantial evidence in the record. Bayliss v. Barnhart, 427 F.3d 1211,

20

1216 (9th Cir. 2005); Reddick, 157 F.3d at 725.

21

Opinions from non-examining medical sources are entitled to less weight than

22

opinions from treating or examining physicians. Lester, 81 F.3d at 831. Although an

23

ALJ generally gives more weight to an examining physician’s opinion than to a non-

24

examining physician’s opinion, a non-examining physician’s opinion may nonetheless

25

constitute substantial evidence if it is consistent with other independent evidence in the

26

record. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).

27

medical opinion evidence, the ALJ may consider “the amount of relevant evidence that

28

supports the opinion and the quality of the explanation provided; the consistency of the

- 28 -

When evaluating

1

medical opinion with the record as a whole; [and] the specialty of the physician providing

2

the opinion . . . .” Orn, 495 F.3d at 631.

3

2.

Weight Assigned to Dr. Chaffee’s Opinion

4

Plaintiff argues that the ALJ erred by relying on examining physician

5

Dr. Chaffee’s opinion to reject Plaintiff’s testimony that she could not stand or sit for

6

long periods of time and that she had a lot of weakness in her hands related to lifting or

7

holding things. (Doc. 24 at 26-27.)

8

On examination, Dr. Chaffee found that Plaintiff had normal muscle bulk and

9

tone, full strength in the upper and lower extremities, a normal gait and station, normal

10

coordination, and a normal range of motion in her hips, knees, ankles, shoulders, elbows,

11

wrists, cervical, lumbar and thoracic spine. (Tr. 446-47.) He found no swelling or

12

crepitation in either knee. (Id.) Plaintiff did not exhibit pain with straight leg raising to

13

sixty degrees and she could squat normally. (Id.) She had full grip strength. (Tr. 447.)

14

Based on his examination, Dr. Chaffee opined that Plaintiff did not have any limitations

15

in functioning. (Tr. 34, 447.) The ALJ assigned Dr. Chaffee’s opinion significant weight

16

because it was “well supported by the evidence of record and the claimant’s admitted

17

activities of daily living.” (Tr. 34.) The ALJ did not err in relying on the opinion of the

18

examining physician to support her adverse credibility determination and to support her

19

determination that Plaintiff’s musculoskeletal impairments were not severe.

20

In Carmickle v. Comm’r. Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008),

21

the ALJ rejected the claimant’s testimony in favor of a contradictory medical opinion.

22

The Ninth Circuit stated that “[c]ontradiction with the medical record is a sufficient basis

23

for rejecting the claimant’s subjective complaints.” Id. (citing Johnson v. Shalala, 60

24

F.3d 1428, 1434 (9th Cir. 1995)). Similarly, in Johnson, the Ninth Circuit rejected a

25

claimant’s testimony because it was inconsistent with “the relevant medical evidence,”

26

including with a one-time examining doctor’s “neurological evaluations.” 60 F.3d at

27

1434). Thus, the ALJ did not err by discounting Plaintiff’s symptom testimony because it

28

was inconsistent with Dr. Chaffee’s opinion.

- 29 -

1

Additionally, the Ninth Circuit recognizes that an examining physician’s opinion

2

can constitute substantial evidence to support an ALJ’s disability determination. See

3

Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (an examining physician’s

4

“opinion alone constitutes substantial evidence, because it rests on his own independent

5

examination of” the claimant); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002)

6

(“The opinions of non-treating or non-examining physicians may also serve as substantial

7

evidence when the opinions are consistent with independent clinical findings or other

8

evidence in the record.”).

9

Thus, Dr. Chaffee’s opinion is substantial evidence to support the ALJ’s disability

10

determination because it rests on his independent examination of Plaintiff.

11

Tonapetyan, 242 F.3d at 1149. Dr. Chaffee’s opinion was consistent with evidence in the

12

medical record indicating that physical examination findings were mainly unremarkable

13

and reflected some tenderness and mildly reduced range of motion. (Tr. 346 (full range

14

of motion (ROM) in elbows, mild tenderness in spine), Tr. 349 (normal rotation in hips,

15

knees tender on palpation), Tr. 352 (full ROM in lower extremities, hand grip intact,

16

“exquisite tenderness” in knees), Tr. 366 (knee ROM intact, no synovitis in hands or

17

wrists, full ROM in ankles), Tr.382 (full ROM in upper extremities, moderate tenderness

18

in lower spine), Tr. 384 (no synovitis in upper extremities, no instability in knees, spine

19

tender throughout); Tr. 386-87 (cervical spondylosis disappeared, ambulated without

20

assistance, mild tenderness in spine and right heel), Tr. 388-89 (no synovitis in upper or

21

lower extremities, mild to moderate tenderness in spine), Tr. 403 (knees tender, nearly

22

full ROM in knees), Tr. 407 (normal gait), Tr. 412 (some tenderness in knees), Tr. 487

23

(full ROM in neck, intact coordination, no tenderness in lower extremities), Tr. 549

24

(ambulated independently, joint tenderness in upper extremities with no synovitis, full

25

ROM in upper extremities, spine tender, no synovitis in lower extremities, normal hand

26

grip), Tr. 554 (ambulated independently, mild joint tenderness in upper extremities, no

27

synovitis, full range of motion in upper extremities, normal hand grip), Tr. 557

28

(ambulated independently, mild limp, joint tenderness in upper extremities with no

- 30 -

See

1

synovitis, non-focal spinal tenderness, normal hand grip), Tr. 560 (ambulated

2

independently, tenderness in joints of upper extremities, no synovitis, non-focal

3

tenderness in spine, normal hand grip), and Tr. 668 (Plaintiff reported 95% improvement

4

in right knee pain and 50% improvement in left knee pain, full ROM in right knee

5

functional ROM in left knee, improved strength in hips and knees with some weakness in

6

left knee).)

7

Additionally, Dr. Chaffee’s opinion was consistent with imaging studies that

8

showed largely normal, with some mild to moderate, findings. (Tr. 31, 353, 403, 356,

9

390-91, 441, 443, 470, 472.) Accordingly, the ALJ did not err in assigning significant

10

weight to Dr. Chaffee’s opinion.

11

3.

Dr. Steingard’s Opinion

12

State agency physician Dr. Steingard examined Plaintiff and gave opinions

13

regarding her mental functional abilities. (Tr. 438-39.) The ALJ gave Dr. Steingard’s

14

opinions little weight because she concluded they were inconsistent with the record.

15

(Tr. 35.) Because Dr. Steingard is an examining medical source, her opinion cannot be

16

rejected without specific and legitimate reasons that are based on substantial evidence in

17

the record. See Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir.

18

2009).

19

The ALJ found Dr. Steingard’s opinions “contradicted by the evidence of record.”

20

(Tr. 35.) This is a valid reason for rejecting Dr. Steingard’s opinions. See Tommasetti,

21

533 F.3d at 1041 (finding it not improper for an ALJ to reject a physician’s opinion that

22

is inconsistent with the record); 20 C.F.R. § 404.1527(c)(4); see also Morgan v. Comm’r

23

of Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999) (discounting medical opinion, in

24

part, because it was unreasonable in light of “other evidence in the record”). The ALJ’s

25

finding is also supported by substantial evidence, including the evidence cited in her

26

decision. (Tr. 35.)

27

Dr. Steingard found that Plaintiff was limited in the area of understanding and

28

memory. (Tr. 438.) She specifically found that Plaintiff would have “problems with

- 31 -

1

detailed instructions or complicated procedures,” she had a limited ability to multitask,

2

she “got a little agitated when asked for some simple general information,” and “could

3

not recall any objects at three minutes.” (Id.) However, as the ALJ noted, this finding is

4

not supported by numerous mental status examinations that indicated that Plaintiff’s

5

memory7 was good (Tr. 288, Tr. 618 (noting good recall of events)), or intact (Tr. 313,

6

315, 320, 397, 402).

7

Dr. Steingard also opined that Plaintiff had limitations in the area of sustained

8

concentration or persistence, described as “the ability to carry out simple instructions,

9

maintain attention and concentration, and maintain regular attendance.”

(Tr. 438.)

10

However, as the ALJ noted (Tr. 35), numerous mental status examinations indicated that

11

Plaintiff was alert (Tr. 313, 315, 319, 397, 402, 464, 571, 578, 585, 588), had fair

12

(Tr. 315) or good concentration (Tr. 313, 320, 397, 402, 465, 571, 578, 585, 589), and a

13

logical or unremarkable thought process (Tr. 288, 313, 315, 397, 402, 464, 571, 578, 585,

14

589, 618).

15

Dr. Steingard also found that Plaintiff was limited in the area of social interaction.8

16

She noted that Plaintiff was tearful and crying during the entire interview and was “a

17

little” irritable. (Tr. 439.) However, as the ALJ noted, the mental status examinations

18

indicated that Plaintiff had a good or unremarkable appearance (Tr. 319, 402, 464, 570,

19

577, 588, 596), good or unremarkable eye contact (Tr. 315, 319, 402, 464, 571, 578, 588,

20

596), an appropriate affect (Tr. 288, 319, 464, 571, 578, 588, 618), a euthymic mood

21

(Tr. 464, 571, 578, 589) or relaxed mood (Tr. 315), and she “had good interaction” and

22

was “talkative.” (Tr. 625.)

23

In summary, as the ALJ noted, Plaintiff’s mental status examinations were

24

consistently unremarkable and did not support the limitations that Dr. Steingard assessed.

25
26
27

7

Memory was described as “recent, remote, retention and recall (3 object
memory, recall; immediate / 5 minutes; digit span memory).” (Tr. 288, 618.)
8

28

Dr. Steingard described social interaction as “the ability to get along with coworkers, respond appropriately to supervision, maintain socially appropriate behavior,
and adhere to basic standards of neatness.” (Tr. 438.)
- 32 -

1

Plaintiff argues that the ALJ could not rely on mental status examinations to reject

2

Dr. Steingard’s opinion. (Doc. 24 at 29.) However, she does not cite any authority to

3

support that proposition, and the ALJ must consider the extent to which an opinion is

4

consistent “with the record as a whole.” 20 C.F.R. § 404.1527(c)(4); see also Morgan v.

5

Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999) (discounting medical

6

opinion, in part, because it was unreasonable in light of “other evidence in the record”).

7

Accordingly, the ALJ did not err by considering the mental status examinations when

8

determining what weight to assign Dr. Steingard’s opinions.

9

The ALJ also rejected Dr. Steingard’s opinions regarding Plaintiff’s mental

10

functional abilities as inconsistent with Plaintiff’s reported daily activities. (Tr. 35.) This

11

is a legally sufficient reason for discounting Dr. Steingard’s opinion. See Magallanes,

12

881 F.2d at 754 (conflicts between treating physician’s opinion and claimant’s own

13

testimony properly considered by ALJ in rejecting treating physician’s opinion in favor

14

of that offered by non-treating, non-examining physician); Morgan, 169 F.3d at 601-02

15

(upholding ALJ’s decision rejecting physician’s conclusion that claimant suffered from

16

marked limitations because claimant’s reported activities of daily living contradicted that

17

conclusion). Plaintiff reported that she relied on her family for support (Tr. 290), went to

18

church and spent time with her son (Tr. 295), she cared for her adult children, managed

19

her finances, went shopping, and completed household chores, and socialized in person

20

or on the phone or computer. (Tr. 189, 190, 282, 295, 309.) Plaintiff also reported that

21

she helped care for her terminally ill brother for several months. (Tr. 587, 588, 592.)

22

In summary, the ALJ gave legally sufficient reasons for discounting

23

Dr. Steingard’s opinions regarding Plaintiff’s mental functional limitations.

24

determined that the ALJ did not err in discounting Plaintiff’s subjective complaints or in

25

assigning weight to the medical opinion evidence, the Court considers whether the ALJ

26

erred at step two by finding that Plaintiff did not have a severe impairment or

27

combination of impairments.

28

- 33 -

Having

1

C.

2

The step-two analysis is “a de minimis screening device [used] to dispose of

3

groundless claims.” Smolen v. Chater, 80 F.3d at 1273, 1290 (9th Cir. 1996). At step

4

two of the five-step sequential inquiry, the Commissioner determines whether the

5

claimant has a medically severe impairment or combination of impairments. Bowen v.

6

Yuckert, 482 U.S. 137, 140-41 (1987) (citing 20 C.F.R. §§ 404.1520(c), 416.920(c)). The

7

claimant has the burden of presenting evidence of medical signs, symptoms, and

8

laboratory findings that establish a medically determinable physical or mental impairment

9

that is severe, and that can be expected to result in death, or which has lasted or can be

10

expected to last for a continuous period of at least twelve months. See Ukolov v.

11

Barnhart, 420 F.3d 1002, 1004-05 (9th Cir. 2005) (citing 42 U.S.C. § 423(d)(3),

12

1382c(a)(3)(D)); see also 20 C.F.R. §§ 404.1520(c), 416.920(c).

Step-Two Determination

13

The Social Security Regulations and Rulings, as well as case law applying them,

14

discuss the step-two severity determination in terms of what is “not severe.” According

15

to the regulations, an impairment or combination of impairments is not severe if it does

16

not “significantly limit” the claimant’s “physical or mental ability to do basic work

17

activities.” 20 C.F.R. § 404.1520(c), § 416.920(c), § 416.921(a). Basic work activities

18

are “abilities and aptitudes necessary to do most jobs,” including “walking, standing,

19

sitting,

20

20 C.F.R. § 404.1521(b); 416.921(b)(1).

21

speaking,” “[u]nderstanding, carrying out and remembering simple instructions,” “us[ing]

22

judgment,” “[r]esponding appropriately to supervision, co-workers and usual work

23

situations,”

24

20 C.F.R. §§ 404.1521(b)(2)-(6), 416.921(b)(2)-(6). At the step-two inquiry, ALJ must

25

consider the combined effect of all of the claimant’s impairments on his ability to

26

function, without regard to whether each alone was sufficiently severe. See 42 U.S.C.

27

§ 423(d)(2)(B).

lifting,

and

pushing,

“[d]ealing

pulling,

with

reaching,

carrying

or

handling.”

They also include “seeing, hearing, and

changes

28

- 34 -

in

a

routing

work

setting.”

1

Applying the standard of review to the step-two determination, a court must

2

determine whether substantial evidence supports the ALJ’s finding that the medical

3

evidence established that the claimant did not have a medically severe impairment or

4

combination of impairments. Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005); see

5

also Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) (“Despite the deference usually

6

accorded to the Secretary’s application of regulations, numerous appellate courts have

7

imposed a narrow construction upon the severity regulation applied here.”). An ALJ

8

properly finds that an impairment or combination of impairments are “not severe” if the

9

evidence establishes a slight abnormality that has “no more than a minimal effect on an

10

individual’s ability to work.” Webb, 433 F.3d at 686 (citation omitted).

11

As previously stated, at step two, the ALJ found that Plaintiff had several

12

medically determinable impairments, but found that those impairments, alone or in

13

combination, were not severe. (Tr. 28.) In her opening brief, Plaintiff generally argues

14

that the ALJ erred by concluding that Plaintiff’s impairments were not severe. (Doc. 24

15

at 13.) In her description of her claims, Plaintiff does not clarify whether she is arguing

16

that the ALJ erred in failing to find any particular impairment not severe, or whether she

17

is arguing that the ALJ erred in failing to find that her combination of impairments was

18

not severe. (Id.) However, later in her opening brief, Plaintiff states that the “ALJ’s

19

denigration of the severity of her mental impairments was . . . flawed.” (Doc. 24 at 22.)

20

Thus, it appears that Plaintiff challenges that the ALJ’s determination that her mental

21

impairments (depression and bipolar disorder) were not severe.

22

In her reply, Plaintiff agrees with the Commissioner that her “obesity,

23

hypertension, gallstones, [and] respiratory problems” were not severe impairments.

24

(Doc. 36 at 6.) Plaintiff also agrees that her “leg injury” did not meet the twelve-month

25

durational requirement. (Id.) She states that her opening brief refers to medical records

26

related to her musculoskeletal impairments (Doc. 36 at 7) and, thus, she challenges the

27

ALJ’s determination that her musculoskeletal impairments were not severe. (Id. at 6-7.)

28

- 35 -

1

In summary, Plaintiff claims that the ALJ erred by failing to find that her

2

musculoskeletal impairments (arthritis, osteoarthritis, degenerative disc disease of the

3

cervical spine with cervical spondylosis and facet arthritis, dysfunction of the major

4

joints, and polyarthralgias) and mental impairments (depression and bipolar disorder)

5

were severe.

6
7

1.

Musculoskeletal Impairments

The ALJ concluded that Plaintiff’s musculoskeletal impairments were not severe.

8

(Tr. 31.)

9

indicated some tenderness and mildly reduced range of motion.

As the ALJ noted, examination findings were largely unremarkable and
(Tr. 30-31 (citing

10

Tr. 346, 349, 352, 366, 382, 384, 386-87, 388-89, 403, 407, 412, 450, 487, 549, 554, 557,

11

560, 668).) Additionally, as the ALJ noted, imaging studies showed largely normal, with

12

some mild to moderate, findings. (Tr. 31, 353, 403, 356, 390-91, 441, 443, 470, 472.)

13

Dr. Chaffee opined that Plaintiff’s physical impairments would not cause any functional

14

limitations. (Tr. 444.) Additionally, the ALJ properly discounted Plaintiff’s subjective

15

complaints about her limitations related to her musculoskeletal impairments. See Section

16

VI.A. Substantial evidence in the record supports that ALJ’s conclusion that Plaintiff’s

17

musculoskeletal impairments were not severe.

18

2.

Mental Impairments

19

“The steps outlined in 20 C.F.R. § 404.1520 apply to the evaluation of physical

20

and mental impairments.” 20 C.F.R. § 404.1520a(a). In addition, when the severity of

21

mental impairments is evaluated, a special technique is followed. Id. Under the special

22

technique, first it is determined whether the claimant has a medically determinable

23

mental impairment, and then the degree of functional limitation resulting from the

24

impairment is rated. 20 C.F.R. § 404.1520a(b). Rating the degree of functional limitation

25

is based on the extent to which the claimant’s impairment interferes with her ability to

26

function independently, appropriately, effectively, and on a sustained basis. 20 C.F.R.

27

§ 404.1520a(c)(2). Section 404.1520a(c) expressly references the Listing of Impairments

28

for information about the factors to be considered in rating the degree of functional

- 36 -

1

limitation. 20 C.F.R. §§ 404.1520a(c)(2), (3). This section cites 12.00C of the Listing of

2

Impairments and identifies four broad functional areas in which the degree of functional

3

limitation is to be rated: activities of daily living; social functioning; concentration,

4

persistence, or pace; and episodes of decompensation. 20 C.F.R. § 404.1520a(c)(3).

5

After the degree of functional limitation is rated, then the severity of the claimant’s

6

mental impairments is determined. 20 C.F.R. § 404.1520a(d).

7

Here, the ALJ applied the special technique for evaluating the severity of mental

8

impairments. (Tr. 33.) She found that Plaintiff’s medically determinable impairments

9

did not cause more than minimal limitation in her ability to perform basic mental work

10

activities and were therefore non-severe. (Tr. 34.) She expressly stated, “[i]n making

11

this finding, the undersigned has considered the four broad functional areas set out in the

12

disability regulations for evaluating mental disorders and in section 12.00C of the Listing

13

of Impairments . . . .” (Tr. 33.) The ALJ then explained the findings that supported her

14

rating of mild limitation in the areas of daily living, social functioning, and concentration,

15

persistence, or pace. (Tr. 33-34.) Regarding the fourth area, she found that Plaintiff had

16

experienced no episodes of decompensation. (Tr. 33.) The ALJ cited the regulations

17

governing the special technique for evaluation of mental impairments, and concluded that

18

Plaintiff’s mental impairments were non-severe. (Tr. 33-34.)

19

Accordingly, the ALJ did not err in concluding that Plaintiff’s mental impairments

20

were not severe because she expressly incorporated the special technique for the

21

evaluation of mental impairments. As the ALJ noted, the mental status examinations are

22

consistently unremarkable.

23

determination is based on the ALJ’s rejection of Dr. Steingard’s opinion and her adverse

24

credibility determination, as discussed in Sections VI.A.1 and VI.B.3, the ALJ did not err

25

in her assessment of that evidence.

26

VII.

(Tr. 35.) Additionally, to the extent that the step-two

Conclusion

27

The ALJ did not erred by rejecting Plaintiff’s symptom testimony and

28

Dr. Steingard’s opinions, or by assigning significant weight to Dr. Chaffee’s opinion.

- 37 -

1

Additionally, the ALJ did not err by concluding that Plaintiff did not have a severe

2

impairment or combination of impairments and her determination is supported by

3

substantial evidence in the record. Accordingly, the Court affirms the Commissioner’s

4

disability determination.

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Accordingly,

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IT IS ORDERED that the Commissioner’s disability determination is

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AFFIRMED.

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Commissioner and against Plaintiff and to terminate this action.

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The Clerk of Court is directed to enter judgment in favor of the

Dated this 17th day of September, 2015.

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