Soto-Hopkins v. Colvin
Filing
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ORDERED that the Commissioner's final decision in this matter is AFFIRMED. The Clerk of Court is instructed to enter judgment accordingly and close this case. Signed by Magistrate Judge Leslie A Bowman on 9/14/2016. (BAR)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Plaintiff,
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vs.
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Carolyn W. Colvin, Commissioner of)
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Social Security,
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Defendant.
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Sergio Enrique Soto-Hopkins,
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No. CV 15-541-TUC-LAB
ORDER
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The plaintiff filed this action for review of the final decision of the Commissioner for
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Social Security pursuant to 42 U.S.C. § 405(g). (Doc. 1)
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The Magistrate Judge presides over this case pursuant to 28 U.S.C. § 636(c) having
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received the written consent of both parties. (Doc. 14)
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The court finds the ALJ’s decision that Soto-Hopkins can return to his previous work as
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a cook is supported by substantial evidence and free from legal error.
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PROCEDURAL HISTORY
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On January 31, 2012, Soto-Hopkins filed for disability insurance benefits pursuant to
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Title II of the Social Security Act. (Tr. 16) He alleged disability beginning on January 1, 2009,
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due to “chronic sleep disorder, depression, anxiety, [and] seizures.” (Tr. 156) His claim was
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denied initially and upon reconsideration. (Tr. 93-96; 98-100) Soto-Hopkins requested review
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and appeared without counsel at a hearing before Administrative Law Judge (ALJ) Larry
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Johnson on November 21, 2013. (Tr. 38) In his decision, dated May 16, 2014, the ALJ found
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Soto-Hopkins was not disabled because he could return to his past work as a cook. (Tr. 16-31)
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Soto-Hopkins appealed and submitted an additional exhibit, but the Appeals Council
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denied review making the decision of the ALJ the final decision of the Commissioner. (Tr. 1-6)
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Soto-Hopkins subsequently filed this action appealing that final decision. (Doc. 1) He argues
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the ALJ erred at step two of the disability analysis, erred at step three, failed to properly credit
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his subjective testimony of disability, and failed to properly evaluate his residual functional
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capacity. (Doc. 19)
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Claimant’s Work History and Medical History
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Soto-Hopkins worked as a cook from 1990 to 2008. (Tr. 157) His last job was working
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as a cook at Davis-Monthan Air Force Base. (Tr. 50) When his six-month contract ended, he
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“was tired of cooking and [] wanted to do something else.” (Tr. 51) He sought work elsewhere
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and has had “eight or ten” interviews, but he has not found another job. (Tr. 51) He received
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unemployment benefit for “three months maybe.” (Tr. 51) He states he cannot work now
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because he is “confused,” and he does not “have the concentration.” (Tr. 52)
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In June of 2012, Vivienne J. Kattapong, M.D., reviewed the medical record for the
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disability determination service and offered an opinion of Soto-Hopkins’s physical limitations.
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She noted that the medical record indicates that Soto-Hopkins has pseudoseizures but “[h]e is
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not being treated for epileptic seizures or for sleep apnea.” (Tr. 72) She concluded, “Work-
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related limitations stem largely from mental issues.” Id. “No severe somatic [medically
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determinable impairment] has been established.” Id.
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In June of 2012, Jaine Foster-Valdez, Ph.D., reviewed the medical record for the
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disability determination service and offered an opinion of Soto-Hopkins’s mental limitations.
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She opined that Soto-Hopkins has an affective disorder and personality disorder. (Tr. 72-73)
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She evaluated his “B” listing criteria, which gauge the severity of his mental impairment. She
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found he has no restrictions of his daily activities; he has mild difficulties in maintaining social
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functioning; he has moderate difficulties in maintaining concentration, persistence or pace; and
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there is insufficient evidence of decompensation. (Tr. 73) Foster-Valdez further opined that
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the medical evidence did not establish the presence of the “C” criteria, which are an alternative
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gauge of the extent of his mental impairment. (Tr. 73) She opined that “[Claimant] appears
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invested in presenting a negative impression but [the medical record] reflects that when
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[Claimant] is compliant [with treatment], attending [appointments] regularly and taking
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[prescriptions] as written, he does well. (Tr. 73)
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Foster-Valdez then analyzed Soto-Hopkins’s mental residual functional capacity (RFC).
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She found he is moderately limited in his ability to interact appropriately with the general
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public; moderately limited in his ability to accept instructions and respond appropriately to
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criticism from supervisors; moderately limited in his ability to get along with co-workers; and
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moderately limited in his ability to respond to changes in the work setting. (Tr. 75-76) In
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essence, he is “easily stressed” and “tends to become irritable and demanding.” (Tr. 76) He is
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“[l]ikely to do best [with] limited social interaction.” (Tr. 76)
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In March of 2013, in response to Soto-Hopkins’s request for reconsideration, Stephen
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Bailey, Ed.D., reviewed the medical record and Foster-Valdez’s opinion. He wrote: “On
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[r]econ[sideration] the previous decision is endorsed as written.” (Doc. 87)
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Soto-Hopkins appeared without counsel before the ALJ on November 21, 2013. (Tr. 38)
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He testified that he last worked as a cook at Davis-Monthan Air Force Base. (Tr. 50-51) He
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had two six-month contracts there. (Tr. 51) He stated, “I was tired of cooking and I wanted to
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do something else.” (Tr. 51) He continued, “I’ve been looking for a job.” (Tr. 51) He has had
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“about maybe eight, ten” job interviews, but he has not landed another job. (Tr. 51) He
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collected unemployment benefits for “three months maybe.” (Tr. 52)
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Soto-Hopkins testified that he cannot work because he lacks concentration and gets
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confused. (Tr. 52) He stated, “What I’m trying to say [is] I got real tired of cooking,” (Tr. 53)
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“I wanted to do something else more easy, not the stress, because cooking is a lot of worry,
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you’re doing lasagna, and then you’re doing this and you’re doing that.” (Tr. 53)
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Soto-Hopkins explained that he lived in transitional housing at The Living Center. (Tr.
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55) When he was there, he volunteered as a cook at their Turtle Bay Café. (Tr. 55) They had
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a crock pot but not a proper stove. (Tr. 55)
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Soto-Hopkins further testified that he suffers from panic attacks and had them before
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when he worked at Davis-Monthan. (Tr. 56) They last from 15 to 30 minutes. (Tr. 59) His
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medication helps “sometimes.” (Tr. 59) He has chest pains often and can’t sleep well. (Tr. 56)
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He also suffers from sleep apnea “since I was very, very young.” (Tr. 58)
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CLAIM EVALUATION
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Social Security Administration (SSA) regulations require that disability claims be
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evaluated pursuant to a five-step sequential process. 20 C.F.R. § 404.1520; Baxter v. Sullivan,
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923 F.2d 1391, 1395 (9th Cir. 1991). The first step requires a determination of whether the
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claimant is engaged in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4). If so, then the
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claimant is not disabled, and benefits are denied. Id.
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If the claimant is not engaged in substantial gainful activity, the ALJ proceeds to step
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two, which requires a determination of whether the claimant has a “medically severe impairment
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or combination of impairments.” 20 C.F.R. § 404.1520(a)(4). In making a determination at step
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two, the ALJ uses medical evidence to consider whether the claimant’s impairment more than
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minimally limits or restricts his or her “physical or mental ability to do basic work activities.”
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Id. If the ALJ concludes the impairment is not severe, the claim is denied. Id.
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Upon a finding of severity, the ALJ proceeds to step three, which requires a
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determination of whether the impairment meets or equals one of several listed impairments that
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the Commissioner acknowledges are so severe as to preclude substantial gainful activity. 20
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C.F.R. § 404.1520(a)(4); 20 C.F.R. Pt. 404, Subpt. P, App.1. If the claimant’s impairment
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meets or equals one of the listed impairments, then the claimant is presumed to be disabled, and
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no further inquiry is necessary. Ramirez v Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993). If the
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claimant’s impairment does not meet or equal a listed impairment, evaluation proceeds to the
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next step.
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The fourth step requires the ALJ to consider whether the claimant has sufficient residual
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functional capacity (RFC)1 to perform past work. 20 C.F.R. § 404.1520(a)(4). If yes, then the
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claim is denied. Id. If the claimant cannot perform any past work, then the ALJ must move
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to the fifth step, which requires consideration of the claimant’s RFC to perform other substantial
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gainful work in the national economy in view of the claimant’s age, education, and work
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experience. 20 C.F.R. § 404.1520(a)(4).
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The ALJ’s Findings
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At step one of the disability analysis, the ALJ found Soto-Hopkins “did not engage in
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substantial gainful activity during the period from his alleged onset date of January 1, 2009
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through his date last insured of December 31, 2013.” (Tr. 18) At step two, he found Soto-
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Hopkins “had the following severe impairments: anxiety, depression, and a sleep disorder.” (Tr.
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29)
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At step three, the ALJ found Soto-Hopkins “did not have an impairment or combination
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of impairments that met or medically equaled the severity of one of the listed impairments in
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20 C.F.R., Part 404, Subpart P, Appendix 1.” (Tr. 19)
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The ALJ then analyzed Soto-Hopkins’s residual functional capacity (RFC). He found
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“the claimant had the residual functional capacity to perform a full range of work at all
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exertional levels but with the following nonexertional limitations: the claimant can understand,
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remember and carry out simple 1-2 step work related instructions;
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commensurate work decisions and adjust to changes in the simple or routine work setting and
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he could work with and around others.” (Tr. 20)
he could make
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At step four, the ALJ found Soto-Hopkins was “capable of performing past relevant work
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as a cook.” (Tr. 30) Accordingly, he found that Soto-Hopkins was not disabled from January
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1, 2009, the alleged onset date, through December 31, 2013, the date last insured. (Tr. 31)
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Residual functional capacity is defined as that which an individual can still do despite
his or her limitations. 20 C.F.R. §§ 404.1545, 416.945.
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STANDARD OF REVIEW
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An individual is entitled to disability benefits if he or she demonstrates, through
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medically acceptable clinical or laboratory standards, an inability to engage in substantial
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gainful activity due to a physical or mental impairment that can be expected to last for a
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continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A). “[A] claimant will be
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found disabled only if the impairment is so severe that, considering age, education, and work
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experience, that person cannot engage in any other kind of substantial gainful work which exists
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in the national economy.” Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993).
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The findings of the Commissioner are meant to be conclusive. 42 U.S.C. § 405(g). The
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decision to deny benefits “should be upheld unless it contains legal error or is not supported by
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substantial evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence
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is defined as “such relevant evidence as a reasonable mind might accept as adequate to support
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a conclusion.” Id. It is “more than a mere scintilla but less than a preponderance.” Id.
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“Where evidence is susceptible to more than one rational interpretation, the ALJ’s
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decision should be upheld.” Orn, 495 F.3d at 630. “However, a reviewing court must consider
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the entire record as a whole and may not affirm simply by isolating a specific quantum of
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supporting evidence.” Id.
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The ALJ need not accept the claimant’s subjective testimony of disability, but if he
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decides to reject it, “[]he must provide specific, cogent reasons for the disbelief.” Lester v.
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Chater, 81 F.3d 821, 834 (9th Cir. 1996). “Unless there is affirmative evidence showing that the
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claimant is malingering, the Commissioner’s reasons for rejecting the claimant’s testimony must
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be clear and convincing.” Id. “General findings are insufficient; rather, the ALJ must identify
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what testimony is not credible and what evidence undermines the claimant’s complaints.” Id.
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DISCUSSION
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Soto-Hopkins argues first that the ALJ failed at step two of the disability determination
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process to include his bipolar II disorder, his back problems, and his knee problem in the listing
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of his severe impairments. (Doc. 19, pp. 9-10)
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“At step two of the five-step sequential inquiry, the Commissioner determines whether
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the claimant has a medically severe impairment or combination of impairments.” Smolen v.
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Chater, 80 F.3d 1273, 1289-90 (9th Cir. 1996). “[A]n impairment is not severe if it does not
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significantly limit the claimant’s physical ability to do basic work activities.” Id. at 1290.
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“Basic work activities” are “the abilities and aptitudes necessary to do most jobs” such as
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“walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling.” 20
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C.F.R. § 404.1521(b).
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“[T]he step-two inquiry is a de minimis screening device to dispose of groundless
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claims.” Smolen, 80 F.3d at 1290. “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 than a
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minimal effect on an individual’s ability to work.” Id. (punctuation modified).
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At step four, the ALJ must consider all of the claimant’s impairments together, the severe
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and the non-severe, and determine the claimant’s residual functional capacity. 20 C.F.R. §
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404.1545(e).
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In this case, the ALJ found at step two that Soto-Hopkins had the “following severe
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impairments: anxiety, depression, and a sleep disorder.” (Tr. 18) Soto-Hopkins argues that the
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ALJ should have included on that list his bipolar II disorder, his back problems, and his knee
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problem. (Doc. 19, pp. 9-10)
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The court finds the ALJ’s failure to include the bipolar II diagnosis at step two was, at
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most, harmless error. The ALJ noted a diagnosis of “major depressive disorder and bipolar II
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disorder.” (Tr. 25, 26); 1F/100; 1F/203, 204; 2F/5; 2F/26 He acknowledged that Soto-Hopkins
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has been prescribed hydroxyzine pamoate, Seroquel, and lorazepam to improve his mental
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condition. (Tr. 29) At step two, however, he stated that Soto-Hopkins has the severe
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impairments of anxiety and depression without including his diagnosis of bipolar II disorder.
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He did not explain this omission. The ALJ did, however, consider all of Soto-Hopkins’s mental
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limitations in his RFC analysis. Accordingly, any error at step two was harmless. See Lewis
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v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007).
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The ALJ stated explicitly why he did not include Soto-Hopkins’s alleged back problems
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at step two. He explained that, “[a]lthough the claimant testified that he had back problems,
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there was no medical evidence to support that alleged impairment.” (Tr. 18) “Additionally, the
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claimant testified that he was not being treated for his back.” Id. Accordingly, the ALJ found
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that Soto-Hopkins’s back problems were not a severe impairment. Id.
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Soto-Hopkins does not direct the court to any place in the medical record where a
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diagnosis or treatment for back problems may be found. (Tr. 19, pp. 9-10) The Commissioner
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notes that an Axis III entry for “chronic back pain” is recorded in a progress note from La
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Frontera Center. (Tr. 439) La Frontera, however, is a mental health clinic, and presumably the
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author of the note was not offering a diagnosis but simply memorializing Soto-Hopkins’s
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medical history as he related it. There is no evidence in the medical record that Soto-Hopkins
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has been diagnosed with or treated for back pain by an acceptable medical source. See 20
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C.F.R. § 404.1513(a) (An impairment must be established by an acceptable medical source
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such as a licensed physician.). Soto-Hopkins has not established error here.
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Finally Soto-Hopkins argues the ALJ should have included his knee problem in the step
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two list of severe impairments. The ALJ did not explain in his decision why he believed this
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was not a severe impairment. It may be because Kattapong stated that “[n]o severe somatic
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[medically determinable impairment] has been established,” and the ALJ gave her opinion great
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weight. (Tr. 28, 72)
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Soto-Hopkins does not direct the court to any place in the medical record where a
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diagnosis or treatment for knee problems may be found. (Tr. 19, pp. 9-10) The Commissioner
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notes that there are a number of places in the medical record where an Axis III entry for “Torn
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ligament, L knee Healing” is recorded in a progress note from La Frontera Center. (Tr. 244,
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252, 260, 276, 292, 306, 322, 325, 331, 334) La Frontera, however, is a mental health clinic and
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presumably the author of the note was not offering a diagnosis but simply memorializing Soto-
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Hopkins’s medical history. There does not appear to be any place in the medical record that
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documents a diagnosis or treatment for a torn knee ligament. Accordingly, Soto-Hopkins has
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not established error here.
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Soto-Hopkins argues that if the evidence in the medical record is insufficient to establish
these severe impairments, the ALJ should have ordered a consultive medical examination.
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The ALJ has a “special duty to develop the record fully and fairly and to ensure that the
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claimant’s interests are considered.” Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001).
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And under certain circumstances, the ALJ will order that the claimant undergo a consultative
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medical examination. See 20 C.F.R. § 404.1519a (“If we cannot get the information we need
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from your medical sources, we may decide to purchase a consultative examination.”). For
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example, the ALJ “may purchase a consultative examination to try to resolve an inconsistency
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in the evidence, or when the evidence as a whole is insufficient to allow [him] to make a
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determination or decision on [the] claim.” 20 C.F.R. § 404.1519a(b). It does not appear,
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however, that either situation presents itself here. Moreover, Soto-Hopkins’s suggestion that
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the ALJ should order a consultative examination to hunt down every possible medical
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impairment would run afoul of the rule that the claimant has the burden to establish disability.
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Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001). The ALJ’s failure to order a
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consultative medical examination was not legal error.
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Soto-Hopkins further argues the ALJ erred at step three of the disability analysis by
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failing to find that his mental impairment meets the listed criteria for an affective disorder at 20
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C.F.R. Pt. 404, Subpt. P, App. 1 § 12.04.
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“In order to meet a listing in Appendix 1 for a mental disorder, a claimant must satisfy
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criteria in paragraph A of the listings, which medically substantiate the presence of a mental
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disorder, and the criteria in paragraphs B or C, which describe the functional limitations
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associated with the disorder which are incompatible with the ability to work.” Holohan v.
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Massanari, 246 F.3d 1195, 1203 (9th Cir. 2001). The Commissioner does not dispute Soto-
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Hopkins’s claim that he has a mental impairment listed in paragraph A – affective disorder.
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“In order to satisfy the criteria in paragraph B, [the claimant’s] paragraph A impairments
must result in at least two of the following:
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1. Marked restriction in the activities of daily living; or
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2. Marked difficulties in maintaining social functioning; or
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3. Deficiencies of concentration, persistence or pace resulting in frequent failure
to complete tasks in a timely manner (in work settings or elsewhere); or
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4. Repeated episodes of deterioration or decompensation in work or work-like
settings which cause the individual to withdraw from that situation or experience
exacerbation of signs and symptoms (which may include deterioration of adaptive
behaviors).”
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Holohan v. Massanari, 246 F.3d 1195, 1203-04 (9th Cir. 2001) (citing 20 C.F.R. Pt. 404, Subpt.
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P, App. 1 § 12.04). To satisfy the paragraph C criteria, the claimant must show:
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Medically documented history of a chronic affective disorder of at least 2 years’
duration that has caused more than a minimal limitation of ability to do basic
work activities, with symptoms or signs currently attenuated by medication or
psychosocial support, and one of the following:
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1. Repeated episodes of decompensation, each of extended duration; or
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2. A residual disease process that has resulted in such marginal adjustment that
even a minimal increase in mental demands or change in the environment would
be predicted to cause the individual to decompensate; or
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3. Current history of 1 or more years’ inability to function outside a highly
supportive living arrangement, with an indication of continued need for such an
arrangement.
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20 C.F.R. § Pt. 404, Subpt. P, App. 1 § 12.04.
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The ALJ analyzed the paragraph B criteria by referring to the statements Soto-Hopkins
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made in the Function Report he submitted to the Social Security Administration in February of
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2013. (Tr. 19, 202) The ALJ found that Soto-Hopkins had no restriction in the activities of
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daily living. (Tr. 19) Soto-Hopkins stated that “he had no problem with getting dressed or
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feeding himself.” (Tr. 19, 198) He “helped to take care of his mother, sometimes he would
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help her to bathe and that he went to the store for her and [helped] by going with her to pay the
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bills.” (Tr. 19, 197) He stated “he could go shopping in stores for food or clothes.” (Tr. 19,
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199)
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The ALJ found Soto-Hopkins had mild difficulties in social functioning. (Tr. 19) Soto26
Hopkins stated “he had problems getting along with family, friends and neighbors.” (Tr. 19,
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201) “He had anxiety being in a large group of people.” (Tr. 19, 201)
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Soto-Hopkins had moderate difficulties with regard to concentration, persistence, or
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pace. (Tr. 20) He stated “he could pay attention for about 15 minutes and that he needed help
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or reminders for taking his medication.” (Tr. 20, 201) “He had short term memory loss, and
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that he did not finish completing tasks and he had a lack of concentration.” (Tr. 20, 201)
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The ALJ further found that Soto-Hopkins “has experienced no episodes of
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decompensation, which have been of extended duration.” (Tr. 20) He concluded, “Because the
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claimant’s mental impairment did not cause at least two ‘marked’ limitations or one ‘marked
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limitation’ and ‘repeated’ episodes of decompensation, each of extended duration, the
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‘paragraph B’ criteria were not satisfied.” (Tr. 20)
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Finally the ALJ considered the “paragraph C” criteria. He found in conclusory fashion
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that Soto-Hopkins’s mental illness does not satisfy these criteria. (Tr. 20) The ALJ did not
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explain his reasoning here, but it appears that he adopted the analysis of Jaine Foster-Valdez,
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Ph.D. Foster-Valdez examined the medical record in detail and explained why Soto-Hopkins’s
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mental illness does not satisfy the “paragraph B” and “paragraph C” criteria. The ALJ stated
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that he gave “[g]reat weight” to Foster-Valdez’s opinion because “it is well supported by
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explanation and by the medical evidence.” (Tr. 28, 73-74)
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The ALJ provided substantial evidence to support his finding at step three of the
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disability analysis that Soto-Hopkins’s mental impairment does not meet the listed criteria for
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an affective disorder at 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.04.
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Soto-Hopkins argues that the medical record is replete with evidence showing that his
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mental impairment does meet the listed criteria. But while that might be true, it is somewhat
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beside the point. The ALJ’s opinion need not be supported by overwhelming evidence or even
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a preponderance of the evidence. It is sufficient if it is supported by substantial evidence. And
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here it is. See also Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (“The court will
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uphold the ALJ’s conclusion when the evidence is susceptible to more than one rational
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interpretation.”). The ALJ did not err at step three of the disability analysis.
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Soto-Hopkins further argues the ALJ’s evaluation of his residual functional capacity
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(RFC) was error. Specifically, he argues that the ALJ failed to properly credit his subjective
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testimony of disability.
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The ALJ is not required to accept a claimant’s subjective testimony of disability and may
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discount it if he provides clear and convincing reasons for doing so. See also Molina v. Astrue,
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674 F.3d 1104, 1112 (9th Cir. 2012) (“[T]he ALJ is not required to believe every allegation of
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disabling pain, or else disability benefits would be available for the asking.”) (punctuation
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modified). “In evaluating the claimant’s testimony, the ALJ may use ordinary techniques of
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credibility evaluation.” Molina v. Astrue, 674 F.3d 1104, 1112–13 (9th Cir. 2012) (punctuation
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modified). “For instance, the ALJ may consider inconsistencies either in the claimant’s
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testimony or between the testimony and the claimant’s conduct . . . unexplained or inadequately
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explained failure to seek treatment or to follow a prescribed course of treatment . . . and whether
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the claimant engages in daily activities inconsistent with the alleged symptoms.” Id.
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In this case, the ALJ explained that he discounted Soto-Hopkins’s subjective testimony
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of disability in part because the record contains many references to Soto-Hopkins working or
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seeking work. Soto-Hopkins testified at the hearing “that he had applied for different jobs, but
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that he was never called back.” (Tr. 21) The medical record indicates that he worked as a
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volunteer on a daily basis at The Living Center and Turtle Bay Café. (Tr. 22) On June 30,
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2009, Soto-Hopkins reported that he was working with his ex-wife at an assisted living home.
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(Tr. 23) On January 4, 2010, he stated he “would like to see if the employment team could do
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something for him as far as hours, but he was happy with his job now, and it did not stress him
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out.” (Tr. 23) On May 25, 2010, he stated, “He was getting along better with his ex-wife, and
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helping her with her business. He did the cooking.” (Tr. 24)
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The ALJ noted that Soto-Hopkins left his job at Davis-Monthan when his contract
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expired and not for reasons related to his disability. (Tr. 21) He further noted that Soto-
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Hopkins’s testimony at the 2013 hearing was not entirely consistent with the medical record.
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Soto-Hopkins stated that his last job was at Davis-Monthan in 2008, but there is evidence that
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he was working as a caregiver in July of 2011. (Tr. 21); (Tr. 38); (Tr. 50) The ALJ found that
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while this inconsistency “may not be the result of a conscious intention to mislead, nevertheless,
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the inconsistencies suggest that the information provided by the claimant generally may not be
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entirely reliable, which weakens his credibility.” (Tr. 21) The ALJ further observed that Soto-
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Hopkins “canceled or failed to show up for doctor appointments on a number of occasions
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which suggest that the symptoms may not have been as serious as has been alleged. . . .” (Tr.
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22)
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The ALJ also found that Soto-Hopkins’s daily activities are not as limited as one would
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expect if he were indeed disabled. “The claimant stated on the . . . function report that he took
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care of his mother and sometimes he helped to bathe her.” (Tr. 21) “He stated he took her to
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the store and [helped by] going with her to pay bills.” (Tr. 21); (Tr. 197) “He stated he could
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prepare his own meals every other day.” (Tr. 21); (Tr. 198) “He stated he could walk and use
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public transportation, and he could go shopping in stores for food and clothes.” (Tr. 21); (Tr.
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199) Household activities are not generally performed with the same persistence and pace
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required in the workplace, but they may be considered by the ALJ in evaluating a claimant’s
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subjective testimony of disability. Morgan v. Commissioner of Social Sec. Admin., 169 F.3d,
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595, 600 (9th Cir. 1999); see, e.g., Curry v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1990)
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(Where the claimant “indicated that she was able to take care of her personal needs, prepare
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easy meals, do light housework, and shop for some groceries,” the court found that “[a]n ability
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to perform such activities may be seen as inconsistent with the presence of a condition which
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would preclude all work activity.”).
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Soto-Hopkins argues that the medical record is replete with evidence showing that his
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daily activities are more restricted than the ALJ believes. But as this court noted above, the
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issue is not whether the medical evidence could support a different conclusion. This issue is
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whether the ALJ’s conclusion is supported by substantial evidence. And here it is. See also
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Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).
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The ALJ discounted Soto-Hopkins’s subjective testimony of disability because the record
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contains numerous references to his seeking work or actually working. He has a record of
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failing to show up for his medical appointments. And his record of daily activity does not
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support his claim to disability. The ALJ provided clear and convincing evidence to support his
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decision to discount Soto-Hopkins’s subjective testimony of disability.
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The ALJ instead chose to adopt the opinions of the disability determination
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psychologists, Jaine Foster-Valdez, Ph.D., and Stephen Bailey, Ed.D., who opined that Soto-
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Hopkins’s psychological impairments are moderately limiting but not disabling. (Tr. 28-29)
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The ALJ accorded these opinions “great weight” because they were “well supported by
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explanation and by the medical evidence.” (Tr. 29)
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The ALJ’s reliance on the opinions of Foster-Valdez and Bailey was proper. The ALJ
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is not a medical expert and may not offer his own expert evaluation of the raw medical data.
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Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975); Liskowitz v. Astrue, 559 F.3d 736,
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741(7th Cir. 2009); Smith v. Colvin, 2016 WL 4059627, at *3 (C.D. Cal. 2016); see also
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Dumond v. Commissioner of Social Sec., 875 F.Supp.2d 500, 509 (W.D.Pa. 2012) (rejecting
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the Commissioner’s argument that “an ALJ is not required to rely on a medical opinion in
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formulating a claimant’s RFC.”). Accordingly, he must rely on medical experts to evaluate the
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claimant’s functional limitations. Id. Here, the ALJ’s reliance on the opinions of Foster-Valdez
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and Bailey is not surprising. Theirs are the only opinions in the record from an “acceptable
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medical source.” 20 C.F.R. § 404.1513. The ALJ’s reliance on their opinions was not error.
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See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (“The opinions of non-treating or
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non-examining physicians may also serve as substantial evidence when the opinions are
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consistent with independent clinical findings or other evidence in the record.”).
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The record also contains an opinion from Yassar Canchola, BHP - LISAC, a behavioral
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health professional and licensed independent substance abuse counselor, and an opinion from
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Karen Charles, M.S., C.R.C., a certified rehabilitation counselor, who both opined that Soto-
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Hopkins has serious mental impairments. (Tr. 29-30) Neither Canchola nor Charles, however,
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is a medical doctor, so their opinions are not accorded the same level of deference. 20 C.F.R.
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§ 404.1513; see also Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).
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The ALJ’s decision to discount Soto-Hopkins’s subjective opinion of disability was
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supported by clear and convincing evidence. See also Carmickle v. Commissioner, Social Sec.
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Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) (“Contradiction with the medical record is a
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sufficient basis for rejecting the claimant’s subjective testimony.”). His assessment of Soto-
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Hopkins’s RFC is supported by substantial evidence.
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The court finds the ALJ’s decision is supported by substantial evidence and free from
legal error. Accordingly,
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IT IS ORDERED that the Commissioner’s final decision in this matter is AFFIRMED.
The Clerk of the Court is instructed to enter judgment accordingly and close this case.
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DATED this 14th day of September, 2016.
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