Pilgreen v. Commissioner of Social Security

Filing 35

ORDER - Affirming the decision of the Commissioner of Social Security. The Clerk of Court shall enter judgment accordingly. Signed by Magistrate Judge Eileen S Willett on 7/26/17. (DXD)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

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Monica Inez Pilgreen,

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Plaintiff,
v.

No. CV-16-01447-PHX-ESW
ORDER

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Acting Commissioner of Social Security
Defendant.

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Pending before the Court is Plaintiff Monica Inez Pilgreen’s (“Plaintiff”) appeal of

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the Social Security Administration’s (“Social Security”) denial of her claims for

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disability insurance benefits and supplemental security income.

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jurisdiction to decide Plaintiff’s appeal pursuant to 42 U.S.C. § 405(g), 1383(c). Under

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42 U.S.C. § 405(g), the Court has the power to enter, based upon the pleadings and

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

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Commissioner of Social Security, with or without remanding the case for a rehearing.

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Both parties have consented to the exercise of U.S. Magistrate Judge jurisdiction. (Doc.

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19).

The Court has

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After reviewing the Administrative Record (“A.R.”) and the parties’ briefing

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(Docs. 29, 30, 31, 32), the Court finds that the Administrative Law Judge’s (“ALJ”)

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decision is supported by substantial evidence and is free of harmful legal error. The
decision is therefore affirmed.

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I. LEGAL STANDARDS

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A. Disability Analysis: Five-Step Evaluation

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The Social Security Act (the “Act”) provides for disability insurance benefits to
those who have contributed to the Social Security program and who suffer from a
physical or mental disability. 42 U.S.C. § 423(a)(1).

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also

provides

for

disabled and have limited income. 42 U.S.C. § 1382. To be eligible for benefits based
on an alleged disability, the claimant must show that he or she suffers from a medically
determinable physical or mental impairment that prohibits him or her from engaging in
any substantial gainful activity. 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 1382c(A)(3)(A).
The claimant must also show that the impairment is expected to cause death or last for a
continuous period of at least 12 months. Id.
To decide if a claimant is entitled to Social Security benefits, an ALJ conducts an
analysis consisting of five questions, which are considered in sequential steps. 20 C.F.R.
§§ 404.1520(a), 416.920(a). The claimant has the burden of proof regarding the first four
steps: 1

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Step One: Is the claimant engaged in “substantial gainful
activity”? If so, the analysis ends and disability benefits are
denied. Otherwise, the ALJ proceeds to Step Two.

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Step Two: Does the claimant have a medically severe
impairment or combination of impairments? A severe
impairment is one which significantly limits the claimant’s
physical or mental ability to do basic work activities. 20
C.F.R. §§ 404.1520(c), 416.920(c). If the claimant does not
have a severe impairment or combination of impairments,
disability benefits are denied at this step. Otherwise, the ALJ
proceeds to Step Three.

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Step Three: Is the impairment equivalent to one of a number
of listed impairments that the Commissioner acknowledges

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Act

supplemental security income to certain individuals who are aged 65 or older, blind, or

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The

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Parra v. Astrue, 481 F.3d 742,746 (9th Cir. 2007).
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are so severe as to preclude substantial gainful activity? 20
C.F.R. §§ 404.1520(d), 416.920(d). If the impairment meets
or equals one of the listed impairments, the claimant is
conclusively presumed to be disabled. If the impairment is
not one that is presumed to be disabling, the ALJ proceeds to
the fourth step of the analysis.

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Step Four: Does the impairment prevent the claimant from
performing work which the claimant performed in the past?
If not, the claimant is “not disabled” and disability benefits
are denied without continuing the analysis. 20 C.F.R. §§
404.1520(f), 416.920(f). Otherwise, the ALJ proceeds to the
last step.

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If the analysis proceeds to the final question, the burden of proof shifts to the
Commissioner: 2
Step Five: Can the claimant perform other work in the
national economy in light of his or her age, education, and
work experience? The claimant is entitled to disability
benefits only if he or she is unable to perform other work. 20
C.F.R. §§ 404.1520(g), 416.920(g). Social Security is
responsible for providing evidence that demonstrates that
other work exists in significant numbers in the national
economy that the claimant can do, given the claimant’s
residual functional capacity, age, education, and work
experience. Id.

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B. Standard of Review Applicable to ALJ’s Determination

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The Court must affirm an ALJ’s decision if it is supported by substantial evidence

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and is based on correct legal standards. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir.

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2012); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). Although “substantial

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evidence” is less than a preponderance, it is more than a “mere scintilla.” Richardson v.

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Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison v. NLRB, 305 U.S. 197,

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229 (1938)). It means such relevant evidence as a reasonable mind might accept as

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adequate to support a conclusion. Id.

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Parra, 481 F.3d at 746.
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In determining whether substantial evidence supports the ALJ’s decision, the
Court considers the record as a whole, weighing both the evidence that supports and
detracts from the ALJ’s conclusions. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir.
1998); Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993). If there is sufficient
evidence to support the ALJ’s determination, the Court cannot substitute its own
determination. See Morgan v. Comm’r of the Social Sec. Admin., 169 F.3d 595, 599 (9th
Cir. 1999) (“Where the evidence is susceptible to more than one rational interpretation, it
is the ALJ’s conclusion that must be upheld.”); Magallanes v. Bowen, 881 F.2d 747, 750
(9th Cir. 1989). This is because the ALJ, not the Court, is responsible for resolving
conflicts, ambiguity, and determining credibility. Magallanes, 881 F.2d at 750; see also
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
The Court must also consider the harmless error doctrine when reviewing an
ALJ’s decision. This doctrine provides that an ALJ’s decision need not be remanded or
reversed if it is clear from the record that the error is “inconsequential to the ultimate
nondisability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)
(citations omitted); Molina, 674 F.3d at 1115 (an error is harmless so long as there
remains substantial evidence supporting the ALJ’s decision and the error “does not
negate the validity of the ALJ’s ultimate conclusion”) (citations omitted).

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II. Plaintiff’s Appeal
A. Procedural Background
Plaintiff, who was born in 1969, has worked as a file clerk, small product
assembler, storage facility manager, and as an assistant manager and manager at
apartment complexes.

(A.R. 72, 83-84).

In 2015, Plaintiff filed applications for

disability insurance benefits and supplemental security income. (A.R. 243-44, 247-57).
Plaintiff’s applications alleged that on January 27, 2015, Plaintiff became unable to work
due to depression, anxiety, panic attacks, fibromyalgia, “[b]ack, arthritis, scoleosis [sic],”
“knee, recovery from surgery,” chronic pain, and learning disability. (A.R. 116, 130).
Social Security denied the applications on May 11, 2015. (A.R. 182-89). In June 2015,
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upon Plaintiff’s request for reconsideration, Social Security affirmed the denial of
benefits. (A.R. 190-97). Plaintiff sought further review by an ALJ, who conducted a
hearing in January 2016. (A.R. 68-90).
In his March 2, 2016 decision, the ALJ found that Plaintiff is not disabled within
the meaning of the Social Security Act. (A.R. 18-35). The Appeals Council denied
Plaintiff’s request for review, making the ALJ’s decision the final decision of the Social
Security Commissioner. (A.R. 1-6, 14). On May 11, 2016, Plaintiff filed a Complaint
(Doc. 1) pursuant to 42 U.S.C. § 405(g) requesting judicial review and reversal of the
ALJ’s decision.
B. The ALJ’s Application of the Five-Step Disability Analysis
1. Step One: Engagement in “Substantial Gainful Activity”
The ALJ determined that Plaintiff has not engaged in substantial gainful activity
since the alleged onset date of January 27, 2015. (A.R. 22). Neither party disputes this
determination.

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2. Step Two: Presence of Medically Severe Impairment/Combination
of Impairments

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The ALJ found that Plaintiff has the following three impairments: (i) obesity; (ii)

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fibromyalgia; (iii) degenerative disc disease of the lumbar spine; (iv) degenerative joint

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disease of the right knee; (v) major depressive disorder; (vi) panic disorder; (vii)

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agoraphobia; and (viii) post-traumatic stress disorder (“PTSD”). (A.R. 22). Plaintiff

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argues that the ALJ erred by not including Plaintiff’s alleged pituitary tumor in the list of

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severe impairments. (Doc. 29 at 11-12).

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3. Step Three: Presence of Listed Impairment(s)

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The ALJ found that Plaintiff did not have an impairment or combination of

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impairments that met or medically equaled an impairment listed in 20 C.F.R. Part 404,

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Subpart P, Appendix 1 of the Social Security regulations.

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disputes this finding. (Doc. 29 at 12).

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(A.R. 24-25).

Plaintiff

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4. Step Four: Capacity to Perform Past Relevant Work
The ALJ found that Plaintiff retained the residual functional capacity (“RFC”) to
perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except that
[Plaintiff] cannot climb ladders, ropes, or scaffolds. She can
occasionally climb ramps or stairs, balance, and stoop but
never kneel, crouch, or crawl. In addition to normal breaks
and lunch, she must have the opportunity to alternate
positions between sitting and standing every hour without a
break in service. Mentally, the claimant retains the ability to
understand, remember, and carryout simple instructions and
tasks.
She cannot interact with the public and can
occasionally interact with coworkers and supervisors.
(A.R. 25).
Based on the RFC, the ALJ determined that Plaintiff is able to perform her past

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relevant work as it was generally performed.

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challenges the ALJ’s RFC assessment by arguing that the ALJ improperly weighed the

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opinions of a consulting psychologist who evaluated Plaintiff. (Doc. 29 at 19-20).

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(A.R. 33).

In her appeal, Plaintiff

5. Step Five: Capacity to Perform Other Work

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Even though the ALJ determined at Step Four that Plaintiff is able to perform her

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past relevant work as generally performed, the ALJ made alternative findings at Step

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Five. (A.R. 33-34).

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At the administrative hearing, a vocational expert (“VE”) testified that based on

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Plaintiff’s RFC, Plaintiff would be able to perform the requirements of representative

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occupations such as a sorter or machine tender. (A.R. 85). The ALJ found that the VE’s

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testimony was consistent with the information in the Dictionary of Occupational Titles

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and that the jobs identified by the VE existed in significant numbers in the national

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economy. (A.R. 34). After considering the VE’s testimony, Plaintiff’s age, education,

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work experience, and RFC, the ALJ determined that Plaintiff can make a successful

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adjustment to other work and is therefore not disabled. (Id.). Plaintiff asserts that due to

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restrictions not accounted for in the ALJ’s RFC assessments, she is unable to engage in

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any work. (Doc. 29 at 20-21).
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C. Plaintiff’s Challenge to the ALJ’s Decision To Not Reopen Plaintiff’s
Prior Disability Application

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Plaintiff previously filed an application for disability insurance benefits, which the

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ALJ denied on January 26, 2015. (A.R. 94-105). The Appeals Council denied Plaintiff’s
request for review on February 11, 2015.

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In his decision denying

Plaintiff’s current applications for disability insurance benefits and supplemental security
income, the ALJ “expressly decline[d] to reopen the prior application.”

(A.R. 18).

Plaintiff argues that the ALJ erred by not reopening her prior application. 3 (Doc. 29 at 910).
Under the Social Security Act, district courts have jurisdiction to review “any final

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(A.R. 110-14).

decision . . . made after a hearing.” 42 U.S.C. § 405(g). An Appeals Council’s denial of
a request for review or a denial of a request to reopen a claim is a discretionary decision
and is generally not subject to judicial review except in “a case in which a claimant raises
a

colorable

constitutional

challenge

to

the

Secretary's

decision.”

Panages v. Bowen, 871 F.2d 91, 93 (9th Cir. 1989); see also Klemm v. Astrue, 543 F.3d
1139, 1144 (9th Cir. 2008) (“Because a denial of a motion to reopen is a discretionary
decision, it is not final and, thus, is not generally reviewable by a district court.”). Such a
constitutional challenge “must relate to the manner or means by which the Secretary
decided not to reopen the prior decision, rather than to the merits of the prior decision or
the means by which that decision was reached.” Id. Further, a “mere allegation of a due
process violation” is insufficient to raise a colorable constitutional claim. Anderson v.
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In her Reply, Plaintiff takes an alternative position by asserting that there was a
“de facto reopening of the previous application.” (Doc. 32 at 5). It is improper to raise
new issues in a reply brief. See Schwartz v. Upper Deck Co., 183 F.R.D. 672, 682 (S.D.
Cal. 1999) (“It is well accepted that raising of new issues and submission of new facts in
[a] reply brief is improper.”) (citing Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir.
1996)). Further, Plaintiff’s argument is without merit. See Oberg v. Astrue, 472 F.
App’x 488, 490 (9th Cir. 2012) (“The mere fact that the ALJ did consider the record of
the prior decision is of no import; plainly he had to do so in order to determine whether
there had been a substantial change in Oberg's condition since that time.”) (citing
Krumpelman v. Heckler, 767 F.2d 586, 589 (9th Cir. 1985)).

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Babbitt, 230 F.3d 1158, 1163 (9th Cir. 2000) (citing Hoye v. Sullivan, 985 F.2d 990, 992
(9th Cir. 1993)). The claim must be supported by “facts sufficient to state a violation of
substantive or procedural due process.” Id. (quoting Hoye, 985 F.2d at 992).
Plaintiff’s Complaint (Doc. 1) does not plead a constitutional claim. Nor does
Plaintiff’s Opening Brief (Doc. 29). However, in response to Defendant’s assertion that
the ALJ’s decision not to reopen the prior disability application is not reviewable,
Plaintiff argues in her Reply that the ALJ violated her due process rights. (Doc. 32 at 45). It is improper to raise new claims in a reply brief. See Schwartz, 183 F.R.D. at 682.
Regardless, there is no indication that Plaintiff's due process or other constitutional rights
were violated. Plaintiff’s first challenge to the ALJ’s decision is without merit.
The Court finds that Plaintiff has failed to raise a colorable constitutional
challenge to the ALJ’s decision not to reopen Plaintiff’s prior disability application. The
Court therefore concludes that it lacks subject matter jurisdiction to review that decision.
Thus, the relevant period of review for purposes of this action is January 27, 2015 (the
alleged disability onset date) to March 2, 2016 (the date of the ALJ’s decision). 4
D. Plaintiff’s Challenge to the ALJ’s Analysis at Step Two
At Step Two of the disability analysis, the claimant must show that his or her

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medically determinable impairments are severe.

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a de minimis screening device to dispose of groundless claims.” Smolen v. Chater, 80

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F.3d 1273, 1290 (9th Cir. 1996). “An impairment or combination of impairments can be

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found ‘not severe’ only if the evidence establishes a slight abnormality that has ‘no more

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than a minimal effect on an individual’s ability to work.’” Id. (quoting Social Security

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Ruling (SSR) 85–28).

“[T]he step two inquiry is

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In his decision, the ALJ correctly noted that Plaintiff was diagnosed with a

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pituitary tumor in October 2015, which was operated on in December 2015. (A.R. 23,

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786, 795-96). The ALJ recounted Plaintiff’s testimony that she had vision problems and

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The ALJ found that Plaintiff has not been under a disability from January 27,
2015 through the date of the March 2, 2016 decision. (A.R. 34).
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experienced frequent headaches that started around the time of her tumor diagnosis.
(A.R. 23). The ALJ found it “reasonable to conclude that the headaches will likely
resolve as she continues to recover from the surgery.” (Id.). The ALJ did not include the
pituitary tumor in the list of severe impairments, finding that “the residual symptoms will
likely resolve before the 12-month period required to establish a severe impairment.”
(Id.).
Plaintiff challenges the ALJ’s decision to not include the pituitary tumor in the list
of severe impairments. (Doc. 29 at 10-12). To support this argument, Plaintiff asserts
that “there is no evidence which states the tumor existed for (a) less than 12 months or (b)
there was no residual effects of the tumor or operation.” (Id. at 12). However, it was
Plaintiff’s burden to produce evidence showing that the pituitary tumor caused more than
a minimal interference in her ability to work and was expected to last for a continuous
period of twelve months or longer. See Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir.
1999) (claimant carries burden to present “complete and detailed objective medical
reports” of his or her condition from licensed medical professionals); see also Edlund v.
Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (impairment must be expected to result
in death or for a continuous period of not less than twelve months to establish basis for
disability under Social Security Act). Plaintiff has not produced any such evidence.
Substantial evidence supports the ALJ’s determination that the pituitary tumor is nonsevere. For example, although Plaintiff reported that the tumor caused vision problems,
the ALJ correctly noted that Plaintiff is able to drive. (A.R. 26).
Further, where a disability claimant argues that an ALJ has erred, the claimant
must also show that the asserted error resulted in actual harm. See Ludwig v. Astrue, 681
F.3d 1047, 1054 (9th Cir. 2012) (“The burden is on the party claiming error to
demonstrate not only the error, but also that it affected his ‘substantial rights,’ which is to
say, not merely his procedural rights.”) (citing Shinseki v. Sanders, 556 U.S. 396, 407-09
(2009)). The Court looks at the “record as a whole to determine [if] the error alters the
outcome of the case.” Molina, 674 F.3d at 1115. Plaintiff has not set forth, and there is
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no evidence in the record, of any functional limitations caused by the pituitary tumor that
the ALJ failed to consider. Plaintiff has thus failed to show that finding the pituitary
tumor severe at Step Two would have any effect on the ultimate disability determination.
Accordingly, even if the ALJ erred by finding the pituitary tumor non-severe, the error is
harmless.
E. Plaintiff’s Challenge to the ALJ’s Analysis at Step Three

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At Step Three of the disability analysis, an ALJ considers whether a claimant’s

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impairment or combination of impairments meets or equals a listed impairment under 20

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C.F.R. Part 404, Subpart P, Appendix 1 (the “Listings”). The Listings are divided into

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categories of impairments that relate to various “body systems” (e.g. musculoskeletal

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system, respiratory system, etc.). 20 C.F.R. § 404.1525(a). The impairments described

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within each category are those that Social Security considers to be severe enough to

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prevent an individual from doing any gainful activity, regardless of his or her age,

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education, or work experience. Id. If a claimant’s impairment meets or equals one of the

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listed impairments, the claimant is conclusively presumed to be disabled. Bowen v.

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Yuckert, 482 U.S. 137, 141 (1987). The Listings thus “streamlin[e] the decision process

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by identifying those claimants whose medical impairments are so severe that it is likely

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they would be found disabled regardless of their vocational background.” Id. at 153.
1. Listings 12.04 (Depressive, Bipolar and Related Disorders) and
12.06 (Anxiety and Obsessive-Compulsive Disorders)

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The ALJ analyzed whether the severity of Plaintiff’s mental impairments,
considered singly and in combination, meet or medically equal the criteria of Listings
12.04 (Depressive, Bipolar and Related Disorders) and 12.06 (Anxiety and ObsessiveCompulsive Disorders). (A.R. 24-25).
For allegations regarding mental impairments, an ALJ must use the special review
technique set forth in 20 C.F.R. § 404.1520a. After determining whether an applicant has
a medically determinable mental impairment, the ALJ must rate the degree of functional
limitation in four areas: (i) activities of daily living, (ii) social functioning, (iii)
concentration, persistence or pace, and (iv) episodes of decompensation.
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Id. at §

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404.1520a(c)(3). Next, the ALJ must determine the severity of the mental impairment.
Id. at § 404.1520a(d). If the degree of limitation in the first three functional areas is
“none” or “mild” and “none” in the fourth area, it is generally concluded that the
impairment is not severe unless the evidence otherwise indicates that there is more than a
minimal limitation in the ability to do basic work activities. Id. at § 404.1520a(d)(1).

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The ALJ found that Plaintiff had medically determinable mental impairments of
anxiety, depression, attention or concentration deficit, and PTSD. (A.R. 23). Applying
the special review technique, the ALJ rated the degree of functional limitation in the four
relevant areas as follows.

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i. Activities of Daily Living

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In concluding that Plaintiff has moderate restriction in activities of daily living, the
ALJ stated that Plaintiff “acknowledged at the psychological consulting examination [by
Dr. Betty Eitel] that she drove, managed her money, cooked, scheduled and kept
appointments, did some housework, and performed her self-care tasks independently
(Exhibit B13F/2).” (A.R. 24-25). Although Plaintiff does not dispute that Dr. Eitel’s
report reflects such an acknowledgment, Plaintiff argues that the ALJ took that portion of
the report out of context as Dr. Eitel opined that Plaintiff cannot sustain concentration
and persist in work-related activity at a reasonable pace, cannot maintain effective social
interaction on a consistent and independent basis with supervisors, co-workers, and the
public, and cannot deal with normal pressures in a competitive work setting. (Doc. 29 at
14 (citing A.R. 722)).

However, as explained in Section II(F)(3) below, the ALJ

provided valid reasons for rejecting Dr. Eitel’s assessment. The Court does not find that
the ALJ erred by concluding that Plaintiff has moderate restriction in activities of daily
living.
ii. Social Functioning
In explaining his rationale for finding that Plaintiff has moderate difficulties in
social functioning, the ALJ stated that Plaintiff “informed [Dr. Eitel] that she rarely left
the home and that she had a few friends with whom she socialized (Exhibit B13F/2).”
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(A.R. 25). Citing to medical evidence that predates the alleged disability onset date of
January 27, 2015, Plaintiff argues that the ALJ should have instead found “marked
limitations in social functioning.” (Doc. 29 at 16). Although Plaintiff cites an August
2014 medical record (A.R. 774) that indicates that Plaintiff was diagnosed with
agoraphobia, “the critical date is the date of onset of disability, not the date of diagnosis”
in evaluating a claim for Social Security disability benefits. Swanson v. Secretary of
Health and Human Services, 763 F.2d 1061, 1065 (9th Cir. 1985) (emphasis in original);
see also Morgan v. Sullivan, 945 F.2d 1079, 1081 (9th Cir. 1991) (“The significant date
for disability compensation is the date of onset of the disability rather than the date of
diagnosis.”); Carmickle v. Comm’r, Social Sec. Admin., 533 F.3d 1155, 1164-65 (9th Cir.
2008) (an ALJ did not err in classifying a claimant’s carpal tunnel syndrome as a “nonsevere” impairment at Step Two of the analysis where the only medical evidence
addressing such impairment was a letter dated well before the claimant’s alleged onset of
disability).

It was Plaintiff’s responsibility to produce current medical evidence

supporting her allegation that she has marked limitations in social functioning. Roberts v.
Shalala, 66 F.3d 179, 182 (9th Cir. 1995) (claimant seeking social security benefits bears
burden of establishing prima facie case of disability). Plaintiff does not dispute that she
informed Dr. Eitel that she has friends with whom she socializes. The Court finds that
the ALJ’s finding that Plaintiff has moderate limitations in social functioning is supported
by substantial evidence.
iii. Concentration, Persistence, or Pace
With respect to concentration, persistence, or pace, the ALJ cited Dr. Eitel’s report
that explained that Plaintiff “recalled 2 of 4 words after a 5-minute delay, repeated 3
digits forward and 4 backward, performed serial 2s but not 3s or 7s, and spelled ‘world’
backward (Exhibit B13F/4).” (A.R. 25). Plaintiff reiterates her argument that the ALJ
took Dr. Eitel’s report out of context. (Doc. 29 at 16). This argument is without merit for
the reasons discussed above.
iv. Episodes of Decompensation
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As to the fourth functional area, the ALJ found that there was no evidence of
“episodes of decompensation, which had extended duration.” (A.R. 25). Plaintiff’s
briefing does not challenge this finding.

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The ALJ included major depressive disorder, panic disorder, agoraphobia, and
PTSD in the list of serve impairments at Step Two. (A.R. 22). Based on the foregoing
discussion, the Court does not find that the ALJ erred in concluding that Plaintiff’s
mental impairments do not meet or medically equal the criteria of Listings 12.04 and
12.06.
2. Listing 9.00 (Endocrine Disorder)
Plaintiff appears to argue that she should be found disabled at Step Three,
asserting that she meets or equals Listing 9.00 (Endocrine Disorders). (Doc. 29 at 12).
“An endocrine disorder is a medical condition that causes a hormonal imbalance.” 20
C.F.R. Pt. 404, Subpt. P, App 1, § 9.00(A). Listing 9.00, which includes “pituitary gland
disorders” as an endocrine disorder, explains that “[p]ituitary gland disorders can disrupt
hormone production and normal functioning in other endocrine glands and in many body
systems.” Id. at § 900(B)(1). Social Security “evaluate[s] impairments that result from
endocrine disorders under the listings for other body systems.” Id. at § 900(B). For
example, “when pituitary hypofunction affects water and electrolyte balance in the
kidney and leads to diabetes insipidus, [Social Security] evaluate[s] the effects of
recurrent dehydration under 6.00.” Id. at § 900(B)(1).
Plaintiff has not produced any evidence that shows that the alleged pituitary tumor
has disrupted hormone production or impacted normal functioning in other endocrine
glands or body systems. Plaintiff therefore has failed to show that the ALJ committed
harmful error at Step Three in not finding that Plaintiff meets or equals Listing 9.00.
3. Combined Effect of Plaintiff’s Physical and Mental Impairments
Plaintiff argues that the ALJ failed to consider the combined effects of Plaintiff’s
physical and mental impairments in determining whether Plaintiff should be found
disabled at Step Three. (Doc. 29 at 12-13). The Ninth Circuit has explained that a
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claimant “bears the burden of proving that . . . she has an impairment that meets or equals
the criteria of an impairment listed in Appendix 1 of the Commissioner's regulations.”
Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005). “An ALJ is not required to discuss
the combined effects of a claimant's impairments or compare them to any listing in an
equivalency determination, unless the claimant presents evidence in an effort to establish
equivalence.” Id.; see also Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001) (rejecting
claimant’s argument that the ALJ failed to adequately explain his finding that his
impairments did not equal a listing, in part, because claimant failed to proffer a theory as
to how the impairments equaled a listing).
Aside from referencing Listing 9.00, Plaintiff has not specified which listing she
purportedly meets or equals, nor has Plaintiff proffered a theory of how she equals a
listing based on the combination of her impairments. See Burch, 400 F.3d at 683 (“Even
on appeal, Burch has not pointed to any evidence of functional limitations due
to obesity which would have impacted the ALJ’s analysis. . . . We therefore conclude that
the ALJ did not commit reversible error by failing to consider Burch’s obesity in
determining whether she met or equaled the requirements of a listed impairment.”).
Because the ALJ provided legally sufficient reasons supported by substantial evidence on
the record to support his findings, the Court concludes that the ALJ did not err
at Step Three.
F. Plaintiff’s Challenge to the ALJ’s RFC Assessment and Step Four
Determination
1. The ALJ Properly Considered Plaintiff’s Fibromyalgia

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Although the ALJ found that Plaintiff’s fibromyalgia is a severe impairment at

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Step Two, Plaintiff argues that the ALJ did not properly evaluate Plaintiff’s fibromyalgia

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in assessing Plaintiff’s RFC. (Doc. 29 at 13). On July 25, 2012, Social Security issued a

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ruling pertaining to the evaluation of fibromyalgia. SSR 12-2p, 2012 WL 3104869. The

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first part of the ruling discusses the development of evidence to establish that a person

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has a medically determinable impairment of fibromyalgia. The second part of the ruling
explains how fibromyalgia fits into the five-step disability analysis.
SSR 12-2p explains that at Step One, a claimant with fibromyalgia will not be
found to be disabled if the claimant is engaged in substantial gainful activity. At Step
Two, Social Security will find that a claimant’s fibromyalgia impairment is severe if it
causes a limitation or restriction that has more than a minimal effect on the ability to
perform basic work activities. Regarding Step Three, SSR 12-2p explains that because
fibromyalgia is not a listed impairment, a claimant cannot be found conclusively disabled
due solely to the claimant’s fibromyalgia impairment. With respect to determining a
claimant’s RFC at Step Four, Social Security “will consider a longitudinal record
whenever possible because the symptoms of [fibromyalgia] can wax and wane so that a
person may have ‘bad days and good days.’” With respect to Steps Four and Five, SSR
12-2p explains that the “usual vocational considerations apply,” but notes that:

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1. Widespread pain and other symptoms associated with
[fibromyalgia], such as fatigue, may result in exertional
limitations that prevent a person from doing the full range of
unskilled work in one or more of the exertional categories in
appendix 2 of subpart P of part 404 (appendix 2). People
with [fibromyalgia] may also have nonexertional physical or
mental limitations because of their pain or other symptoms.
Some may have environmental restrictions, which are also
nonexertional.
2. Adjudicators must be alert to the possibility that there may
be exertional or nonexertional (for example, postural or
environmental) limitations that erode a person’s occupational
base sufficiently to preclude the use of a rule in appendix 2 to
direct a decision. In such cases, adjudicators must use the
rules in appendix 2 as a framework for decision-making and
may need to consult a vocational resource.
SSR 12-2p, 2012 WL 3104869, at *6.

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testimony that she suffers from chronic pain due to her fibromyalgia and other
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impairments. (A.R. 26). The ALJ also considered the longitudinal evidence regarding
Plaintiff’s fibromyalgia and Plaintiff’s reports that “her impairments interfere with her
ability to remember, concentrate, complete tasks, and follow instructions.” (A.R. 26, 28).
Plaintiff has failed to show that the ALJ failed to comply with SSR 12-2p or otherwise
failed to properly consider Plaintiff’s fibromyalgia in determining Plaintiff’s RFC.
2. Plaintiff’s Challenge to the ALJ’s Credibility Determination of
Plaintiff’s Symptom Testimony
When evaluating the credibility of a plaintiff’s testimony regarding subjective pain
or symptoms, the ALJ must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d
586, 591 (9th Cir. 2009). In the first step, the ALJ must determine whether the claimant
has presented objective medical evidence of an underlying impairment “which could
reasonably be expected to produce the pain or other symptoms alleged.” Lingenfelter v.
Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The plaintiff does not have to show that the
impairment could reasonably be expected to cause the severity of the symptoms. Rather,
a plaintiff must only show that it could have caused some degree of the symptoms.
Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).
If a plaintiff meets the first step, and there is no evidence of malingering, the ALJ
can only reject a plaintiff’s testimony about the severity of his or her symptoms by
offering specific, clear, and convincing reasons. Lingenfelter, 504 F.3d at 1036. The
ALJ cannot rely on general findings. The ALJ must identify specifically what testimony
is not credible and what evidence undermines the plaintiff’s complaints. Berry v. Astrue,
622 F.3d 1228, 1234 (9th Cir. 2010). In weighing a plaintiff’s credibility, the ALJ can
consider many factors including: a plaintiff’s reputation for truthfulness, prior
inconsistent statements concerning the symptoms, unexplained or inadequately explained
failure to seek treatment, and the plaintiff’s daily activities. Smolen, 80 F.3d at 1284; see
also 20 C.F.R. § 404.1529(c)(4) (Social Security must consider whether there are
conflicts between a claimant’s statements and the rest of the evidence). In addition,
although the lack of medical evidence cannot form the sole basis for discounting pain

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testimony, it is a factor that the ALJ can consider in his or her credibility analysis. See 20
C.F.R. § 404.1529(c)(2); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Burch
v. Barnhart, 400 F.3d 676 (9th Cir. 2005).
On March 16, 2016, the Social Security Administration issued Social Security
Ruling 16-3p, 2016 WL 1119029 (March 16, 2016) (“SSR 16-3p”), which provides new
guidance for ALJs to follow when evaluating a disability claimant’s statements regarding
the intensity, persistence, and limiting effects of symptoms. SSR 16-3p replaces Social
Security Ruling 96-7p, 1996 WL 374186 (July 2, 1996) (“SSR 96-7p”). SSR 16-3p
eliminates the term “credibility” used in SSR 96-7p in order to “clarify that subjective
symptom evaluation is not an examination of the individual’s character.” SSR 16-3p,
2016 WL 1119029, at *1. That is, “[t]he change in wording is meant to clarify that
administrative law judges aren’t in the business of impeaching claimants’ character,” but
“obviously administrative law judges will continue to assess the credibility of pain
assertions by applicants, especially as such assertions often cannot be either credited or
rejected on the basis of medical evidence.” Cole v. Colvin, 831 F.3d 411, 412 (7th Cir.
2016) (emphasis in original).
Although SSR 16-3p was issued after the ALJ’s March 2, 2016 decision, it is
consistent with Social Security’s prior policies and with prior Ninth Circuit case law.
Compare SSR 16-3p with SSR 96-7p (both policies set forth a two-step process to be
followed in evaluating a claimant’s testimony and contain the same factors to be
considered in determining the intensity and persistence of a claimant’s symptoms).
Because 16-3p clarifies rather than changes existing law, 5 the Court will consider the
ALJ’s evaluation of Plaintiff’s subjective complaints in light of SSR 16-3p.

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Administrative rules will not have retroactive effect unless (i) Congress expressly
authorized the administrative agency to enact retroactive rules and (ii) the new agency
rule states that it is retroactive. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208
(1988). A clarification of a regulation, however, does not raise issues about retroactivity.
See Clay v. Johnson, 264 F.3d 744, 749 (7th Cir. 2001) (stating that a clarifying rule “can
be applied to the case at hand just as a judicial determination construing a statute can be
applied to the case at hand,” and does not raise issues of retroactivity); see also Smolen,
80 F.3d at 1281 n.1 (“We need not decide the issue of retroactivity [as to revised
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Plaintiff argues that the ALJ erred in discrediting Plaintiff’s testimony regarding
her subjective symptoms.

The ALJ’s reasons for discounting Plaintiff’s testimony

include the following:
1. The ALJ correctly recounted Plaintiff’s testimony that she stopped working in
2012 due to interpersonal problems with her supervisor, who is her brother-in-law. (A.R.
27, 72). An ALJ may consider a claimant’s admission that the claimant left his or her job
for reasons other than his alleged impairment. See Bruton v. Massanari, 268 F.3d 824,
828 (9th Cir. 2001) (an ALJ properly considered claimant’s testimony that he left his job
because he was laid off rather than because he was injured); see also Drouin v.
Sullivan, 966 F.2d 1255, 1259 (9th Cir. 1992) (the ALJ properly considered that the
plaintiff stopped working for reasons other than her alleged pain).
2. The ALJ observed that Plaintiff “submitted no evidence of back or knee
complaints after the alleged onset date, including her brief impatient [sic] stay for
treatment of her pituitary tumor. This suggests that the claimant’s ongoing back and knee
symptoms are well controlled with over-the-counter medications and self-care
treatments.” (A.R. 27). This is a valid consideration supported by substantial evidence.
See Warre v. Comm’r, 439 F.3d 1001, 1006 (9th Cir. 2006) (impairments that can be
controlled with medication are not disabling for Social Security purposes); 20 C.F.R. §
404.1529(c)(3)(iv).
3. Regarding Plaintiff’s testimony that she has daily suicidal thoughts, the ALJ
noted that the record reflects otherwise. (A.R. 27). For instance, the ALJ discussed an
August 2014 psychosocial assessment that stated that Plaintiff had not experienced
suicidal thoughts for months before the encounter. 6 (A.R. 27, 548).

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regulations] because the new regulations are consistent with the Commissioner’s prior
policies and with prior Ninth Circuit case law . . . .”).
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The ALJ’s decision states that the August 2014 assessment indicates that
Plaintiff last experienced suicidal thoughts 4 months before the encounter. (A.R. 27).
The report, however, indicates that Plaintiff stated that “it has probably been a couple
months” since she last thought about suicide. (A.R. 548). The Court finds that the error
is inconsequential to the ultimate nondisability determination and is therefore harmless.
See Tommasetti, 533 F.3d at 1038.
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4.

The ALJ correctly stated that the record contains minimal evidence of

treatment for pain or mental impairment issues. (A.R. 27). See Tommasetti, 533 F.3d at
1039-40 (an ALJ may infer that pain is not disabling if a claimant seeks only minimal
conservative treatment).
The ALJ’s credibility finding in this case is unlike the brief and conclusory
credibility findings that the Ninth Circuit Court of Appeals has deemed insufficient in
other cases. For example, in Treichler v. Commissioner of Social Sec. Admin., 775 F.3d
1090, 1102-03 (9th Cir. 2014), an ALJ stated in a single sentence that “the claimant’s
statements concerning the intensity, persistence and limiting effects of these symptoms
are not credible to the extent they are inconsistent with the above residual functional
capacity assessment.” The Court of Appeals held that stopping after this introductory
remark “falls short of meeting the ALJ’s responsibility to provide a discussion of the
evidence and the reason or reasons upon which his adverse determination is based.” Id.
at 1103 (internal quotation marks omitted); see also 42 U.S.C. § 405(b)(1). The Court
further stated that an ALJ’s “vague allegation that a claimant’s testimony is not consistent
with the objective medical evidence, without any specific findings in support of that
conclusion is insufficient for our review.” Id. (quoting Vasquez v. Astrue, 572 F.3d 586,
592 (9th Cir. 2009).
In Robbins v. Astrue, 466 F.3d 880, 883-84 (9th Cir. 2006), the Court of Appeals
found the ALJ’s “fleeting credibility finding” insufficient. In Robbins, the ALJ simply
stated that (i) the claimant’s testimony was “not consistent with or supported by the
overall medical evidence of record” and (ii) “[claimant’s] testimony regarding his alcohol
dependence and abuse problem remains equivocal.” Id. In discussing why the ALJ’s
finding was insufficient, the Court explained that the ALJ did not provide a “narrative
discussion” containing “specific reasons for the finding . . .supported by the evidence in
the record.” Id. at 884-85.
Similarly, in Lester v. Chater, 81 F.3d 821, 833 (9th Cir. 1995), an ALJ simply
concluded that the claimant’s complaints were “not credible” and “exaggerated.” The
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reasons for disbelieving the claimant other than a lack of objective evidence. Id. at 834.

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Here, unlike in Treichler, Robbins, and Lester, the ALJ goes beyond making a
“fleeting” and conclusory remark that Plaintiff’s testimony is not credible. The ALJ
discusses the evidence and explains the inconsistencies in the record that he finds
discredit Plaintiff’s testimony.
evidence in the record.

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The ALJ’s conclusion is supported by substantial

It is possible that a different ALJ would find Plaintiff’s symptom testimony
credible. But it is not the Court’s role to second guess an ALJ’s decision to disbelieve a
Plaintiff’s allegations if the ALJ has articulated specific, clear, and convincing reasons
that are supported by substantial evidence in the record. Fair v. Bowen, 885 F.2d 597,
603 (9th Cir. 1989) (“An ALJ cannot be required to believe every allegation of disabling
pain, or else disability benefits would be available for the asking. . . .”). The Court finds
that the reasons provided by the ALJ for discrediting Plaintiff’s testimony are specific,
clear, convincing, and are supported by substantial evidence in the record. The Court
therefore finds that the ALJ did not err in discrediting Plaintiff’s subjective testimony.

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3. Plaintiff’s Challenge Regarding Weight Given to Medical Source
Opinions

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In weighing medical source opinions in Social Security cases, there are three

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categories of doctors: (i) treating doctors, who actually treat the claimant; (ii) examining

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

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

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1995).

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substantial evidence for rejecting the uncontradicted opinion of a treating or examining

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doctor. Id. at 830-31; Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). An ALJ

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cannot reject a treating or examining doctor’s opinion in favor of another doctor’s

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opinion without first providing specific and legitimate reasons that are supported by

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substantial evidence, such as finding that the doctor’s opinion is inconsistent with and not

An ALJ must provide clear and convincing reasons that are supported by

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supported by the record as a whole.

404.1527(c)(4) (an ALJ must consider whether an opinion is consistent with the record as
a whole); see also Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir.
2004); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Tommasetti, 533 F.3d at
1041 (finding it not improper for an ALJ to reject a treating physician’s opinion that is
inconsistent with the record).

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Bayliss, 427 F.3d at 1216; 20 C.F.R. §

i. Opinions of Consulting Psychologist Betty Eitel, Ph.D.
On April 24, 2015, consulting psychologist Betty Eitel, Ph.D. evaluated Plaintiff.
(A.R. 718-22). Dr. Eitel opined that Plaintiff “cannot sustain concentration and persist in
work-related activity at a reasonable pace.

She cannot maintain effective social

interaction on a consistent basis with supervisors, co-workers, and the public, or deal with
normal pressures in a competitive work setting.” (A.R. 722). As Dr. Eitel’s opinions are
contradicted, 7 the Court must determine whether the ALJ offered specific and legitimate
reasons for discounting Dr. Eitel’s assessment.
The ALJ gave Dr. Eitel’s opinions little weight. (A.R. 28). First, the ALJ found
that Dr. Eitel’s conclusions are “not fully supported by her own findings, for example, in
assessing concentration and abstraction, Eitel found some level of impairment but only
based on a couple of questions and claimant’s responses did not appear to reveal marked
limitations in these areas.” (A.R. 29). In her report, Dr. Eitel concluded that Plaintiff’s
“ability to encode and retain material appears slightly impaired.” (A.R. 721). Dr. Eitel’s
report indicates that Plaintiff was able to repeat four words immediately after hearing
them, could recall her address and social security number, and was able to repeat three

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Dr. Eitel’s opinions are contradicted by the opinions of the non-examining State
agency psychologists. (A.R. 122-23, 125-27, 136-38, 155-56, 158-60); see Moore v.
Comm'r of Soc. Sec., 278 F.3d 920, 924 (9th Cir. 2002) (“The ALJ could reject the
opinions of Moore’s examining physicians, contradicted by a nonexamining physician,
only for “specific and legitimate reasons that are supported by substantial evidence in the
record.”); Mendoza v. Astrue, 371 F. App’x 829, 831 (9th Cir. 2010) (“An ALJ may
reject an opinion of an examining physician, if contradicted by a non-examining
physician, as long as the ALJ gives ‘specific and legitimate reasons that are supported by
substantial evidence in the record.’”).
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digits forward and four backward without error. (Id.). While the report indicates that
Plaintiff could only remember two out of four words after a five minute delay without
prompts, the report indicates that Plaintiff remembered the other two words when given
the categories to which the words belonged. (Id.). The report also indicates that Plaintiff
knew the current president and could recall the previous presidents, although not in the
correct order. (Id.). It is well-settled that an ALJ, not the Court, is responsible for
resolving conflicts and ambiguity in the evidence. Magallanes, 881 F.2d at 750; see also
Andrews, 53 F.3d at 1039. The Court finds that the ALJ’s first reason for discounting Dr.
Eitel’s opinion is specific and legitimate and is supported by substantial evidence in the
record.
As a second reason for giving Dr. Eitel’s opinion little weight, the ALJ stated that
her “assessment appears to be based largely, if not solely, on the claimant’s subjective
reports, which I found unreliable for the reasons previously discussed.” (A.R. 29). Dr.
Eitel wrote numerous statements that reflect Plaintiff's own account of her symptoms,
such as Plaintiff “reported she experiences ‘panic attacks’ several time per week” and
Plaintiff “reported that she often has difficulty completing tasks.”

(A.R. 718-19).

Although Dr. Eitel’s report also conveys observations, such as Plaintiff’s “response time
to my questions was slow” and Plaintiff’s “mood was anxious; affect range was
congruent, and her facial expression was tensed” (A.R. 719-20), to reiterate, an ALJ is
responsible for resolving conflicts and ambiguity in the evidence. Magallanes, 881 F.2d
at 750; see also Andrews, 53 F.3d at 1039.
An ALJ may reject a medical source’s opinion if the opinion is based “to a large
extent on a claimant’s self-reports that have been properly discounted as incredible.”
Tommasetti, 533 F.3d at 1041 (internal quotation marks and citation omitted); Morgan,
169 F.3d at 601; see also Tonapetyan, 242 F.3d at 1149. As explained in the preceding
section, the ALJ did not improperly discount Plaintiff’s testimony. The Court finds that
the ALJ’s conclusion that Dr. Eitel’s opinion are largely premised on Plaintiff’s

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subjective complaints is supported by substantial evidence and is a specific and legitimate
reason for giving the opinion little weight.
For the above reasons, the Court finds that the ALJ did not improperly discount
Dr. Eitel’s opinion.
ii. Non-Examining State Agency Physicians
The ALJ gave “considerable weight” to the opinions of the non-examining state
agency consulting psychologists who reviewed Plaintiff’s medical records. (A.R. 28).
The opinion of a non-examining source cannot alone constitute substantial evidence that
justifies rejecting the opinion of either an examining or a treating source. Tonapetyan v.
Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (citing Magallanes, 881 F.2d at 752).
However, the opinion of a non-examining source may constitute substantial evidence
when it is consistent with other independent evidence in the record.
(citing Magallanes, 881 F.2d at 752).

Id.

Since the opinions of the state agency

psychologists are consistent with other evidence in the record, the ALJ did not err in
giving the opinions considerable weight. Thomas, 278 F.3d at 957 (“The opinions of
non-treating or non-examining physicians may also serve as substantial evidence when
the opinions are consistent with independent clinical findings or other evidence in the
record.”); Magallanes, 881 F.2d at 753 (upholding an ALJ’s reliance on the opinion of a
non-examining physician where the opinion was supported by objective medical
evidence).
G. Plaintiff’s Challenge to the ALJ’s Decision at Step Five

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The final issue raised by Plaintiff presents a challenge to the ALJ’s Step Five

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finding. (Doc. 29 at 20-21; Doc. 32 at 10). As the Court has found that the ALJ did not

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commit harmful error in finding Plaintiff not disabled at Step Four, any error in the ALJ’s

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alternative finding at Step Five that Plaintiff is able to perform other work existing in

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significant numbers in the national economy is harmless.

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III. CONCLUSION
The Court has reviewed the record and finds the ALJ’s decision is supported by
substantial evidence and is free from reversible error. Based on the foregoing discussion,
the decision of the Commissioner of Social Security is affirmed.
IT IS THEREFORE ORDERED affirming the decision of the Commissioner of
Social Security. The Clerk of Court shall enter judgment accordingly.
Dated this 26th day of July, 2017.

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