Bryant v. Commissioner of Social Security Administration

Filing 23

ORDER: 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. Signed by Magistrate Judge Leslie A Bowman on 11/27/2017. (See Order for details) (DPS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Marie Bryant,
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Plaintiff,
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vs.
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Commissioner
Administration,

of

Defendant.

Social

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No. CV 17-128-TUC-LAB
ORDER

The plaintiff filed this action for review of the final decision of the Commissioner for
Social Security pursuant to 42 U.S.C. § 405(g). (Doc. 1, p. 1)
The Magistrate Judge presides over this case pursuant to 28 U.S.C. § 636(c) having
received the written consent of both parties. See FED.R.CIV.P. 73; (Doc. 22)
The court finds that the final decision of the Commissioner at step five of the disability
analysis is supported by substantial evidence and free from legal error.

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PROCEDURAL HISTORY

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On October 17, 2012, Bryant filed for supplemental security income pursuant to Title

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XVI of the Social Security Act. (Tr. 36, 180) She alleged disability beginning on September

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1, 2005, due to intercranial hypertension, depression, anxiety, bipolar disorder, back pain,

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insomnia, and hip problems from childhood. (Tr. 93, 173)

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Her claims were denied initially (Tr. 93-96) and upon reconsideration (Tr. 98-101).

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Bryant requested review and appeared with counsel at a hearing before Administrative Law

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Judge (ALJ) Peter J. Baum on August 3, 2015. (Tr. 34) In his decision, dated September 25,

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2015, the ALJ found Bryant was not disabled. (Tr. 14-16) Bryant appealed, and on January 19,

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2017, the Appeals Council denied review making the decision of the ALJ the final decision of

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the Commissioner. (Tr. 1-3) Bryant subsequently filed this action appealing that decision.

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(Doc. 1)

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Claimant’s Work History and Medical History

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Bryant is five feet one inch tall. (Tr. 203) She weighs 180 pounds. (Tr. 203) She

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completed the eighth grade in 1991. (Tr. 204) She does not have a high school equivalency

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diploma. (Tr. 41)

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Bryant worked for approximately three years in demolition and construction. (Tr. 204)

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This work is classified as “very heavy unskilled.” (Tr. 27) She was laid off in September of

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2009. (Tr. 204, 368, 400) One of the examining physicians reported that “she was struggling

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at work socially because she would get irritated frequently.” (Tr. 368)

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Mental Impairment

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In February of 2013, Bryant was examined by James Rau, Ph.D., for the disability

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determination service. Bryant described a history of “mood swings and depression.” (Tr. 368)

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She described chronic difficulty with reading, concentration, and memory. (Tr. 368) She

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scored 23 on the Mini Mental Status Exam, “which is well in the impaired range.” (Tr. 370)

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Rau diagnosed Bryant with mood disorder, not otherwise specified, anxiety disorder, not

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otherwise specified, and polysubstance dependence in sustained full remission. (Tr. 371) He

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opined she was moderately limited in the functional areas of Understanding and Memory,

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Sustained Concentration and Persistence, Social Interaction, and Adapting to Change. (Tr. 372-

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373)

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In February of 2013, Jaine Foster-Valdez, Ph.D., reviewed the medical record for the

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disability determination service and offered an opinion of Bryant’s mental limitations. (Tr. 66)

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She reported diagnoses for affective disorder and anxiety-related disorder. (Tr. 65) She

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evaluated Bryant’s “B” listing criteria, which gauge the severity of her mental impairment. See

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20 C.F.R. § 416.920a(c)(3). She found Bryant has “mild” restrictions of her daily activities;

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“mild” difficulties in maintaining social functioning; “mild” difficulties in maintaining

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concentration, persistence or pace; and no evidence of decompensation. (Tr. 65) Foster-Valdez

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further opined that the medical evidence did not establish the presence of the “C” criteria, which

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are an alternative gauge of the extent of her mental impairment. (Tr. 65) According to Foster-

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Valdez, the medical record contains sporadic reports of depression and anxiety. (Tr. 65)

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Treatment notes from October 2011 and May 2012 indicate that Bryant had been prescribed

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lorazepam and lamotrigine. (Tr. 65-66) On October 2012, Bryant complained of “a lot of stress

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due to 3 or 4 deaths and a newborn (not hers).” (Tr. 66) Foster-Valdez found Bryant’s

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credibility to be “partial.” (Tr. 66) She discounted Rau’s report as inconsistent with Bryant’s

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medical records. Id. She found Bryant’s psychological condition to be non-severe. (Tr. 66)

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In October of 2013, Hubert R. Estes, M.D., reviewed the medical record for the disability

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determination service and offered an opinion of Bryant’s mental limitations. (Tr. 83) He agreed

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with Foster-Valdez that Bryant’s mental impairment was non-severe. (Tr. 83)

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In October of 2013, Bryant was examined by Gwendolyn W. Johnson, Ph.D., for the

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Arizona Department of Economic Security. (Tr. 408) Bryant described a history of anxiety and

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depression. (Tr. 408) She reported poor sleep due to chronic pain. (Tr. 410) Johnson found

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that Bryant’s “immediate, short-term memory and remote memory systems were grossly intact.”

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(Tr. 410) “Her concentration was tested through basic calculations and her performance was

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good.” (Tr. 410) “Bryant scored 28/30 on the Mini Mental State Examination.” (Tr. 410)

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Johnson diagnosed mood disorder, not otherwise specified, and poly-substance dependence, by

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history. (Tr. 410) Johnson found no evidence of limitation in the functional areas of

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Understanding and Memory, Sustained Concentration and Persistence, Social Interaction, and

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Adaptation. (Tr. 411)
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Physical Impairment

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In February of 2013, Lloyd Anderson, M.D., reviewed the medical records for the

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disability determination service and offered an opinion of Bryant’s physical limitations. (Tr.

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67-69) Anderson opined that Bryant could lift 20 pounds occasionally and 10 pounds

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frequently. (Tr. 67) She could sit, stand, and/or walk for 6 hours in an 8-hour day. (Tr. 67)

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She should only occasionally climb ramps or stairs. (Tr. 68) She should never climb ladders,

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rope, or scaffolds. (Tr. 68) She could occasionally balance, kneel, crouch, or crawl. (Tr. 68)

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She could frequently stoop. (Tr. 68) Anderson’s opinion suggests that Bryant can perform light

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work with some exceptions. See 20 C.F.R. § 416.967(b).

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In October of 2013, L.A. Woodard, D.O., reviewed the medical record for the disability

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determination service and considered the severity of Bryant’s physical impairments. (Tr. 85-87)

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Woodard agreed with the functional limitations given by Anderson. Id.

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In September of 2013, Bryant was examined by Jeri B. Hassman, M.D., for the disability

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determination services. (Tr. 400) Bryant explained that she performed heavy work in

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demolition and construction until she was laid off in September of 2009. (Tr. 40) Hassman

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noted that “[h]er main problem is back pain.” Id. “She complains of aching, stabbing, pins and

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needles pain from her neck down to her sacrum.” Id. Hassman opined that Bryant could lift

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20 pounds occasionally and 10 pounds frequently. (Tr. 404) She could sit, stand, and/or walk

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for 6-8 hours in an 8-hour day. (Tr. 404-05) She should only occasionally climb ramps, stairs,

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ladders, rope, or scaffolds. (Tr. 405) She should only occasionally kneel, crouch, or crawl (Tr.

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405) She could frequently stoop. (Tr. 405)

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In an undated Work Release form, physician’s assistant Nicole James opined that Bryant

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could never climb ladders, scaffolds, or ropes. (Tr. 616) She could operate moving machinery

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between 2 and 6 hours per day. Id. She could stand, walk, or sit for less than 2 hours per day.

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Id. She could lift and carry 20 pounds for less than 2 hours per day. (Tr. 617) She will need

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to shift at will between sitting and standing. Id. She would be expected to miss 7-10 days of

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work per month. (Tr. 618)
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Hearing

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On August 3, 2015, Bryant appeared with counsel at a hearing before the ALJ. (Tr. 36)

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The ALJ noted her protective filing date of October 17, 2012. (Tr. 36) Bryant’s attorney

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informed the ALJ that she would soon receive additional medical reports. (Tr. 38-39) The ALJ

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agreed to hold the record open for two more weeks. (Tr. 39) Counsel explained that she might

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schedule Bryant for an additional cognitive exam. (Tr. 39)

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Bryant testified that she completed the eighth grade in school. (Tr. 41) She stated that

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“[a]t times reading is difficult, and writing, words get mixed up, or misspelled words.” (Tr. 41)

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She conceded that she had filled out job applications in the past, but she said “[i]t was hard” to

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express herself. (Tr. 41) She stated that she had difficulty keeping her checking account

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balanced. (Tr. 42)

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Bryant testified that she could not return to demolition work because of “[t]he standing,

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the pressure on my legs, my back.” (Tr. 42) She continued, “[m]y leg shoots pain like when

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I’m sitting too long, or standing too long.” (Tr. 43) She testified that she has pain in her joints

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and she limps “[m]ost of the time.” (Tr. 43-44)

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The ALJ noted that the records from Tucson Orthopedic state that she “didn’t have any

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limp at all.” (Tr. 44) Records from Renal Care Associates state that she has “no joint pain at

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all.” (Tr. 44) Bryant disagreed with those records. (Tr. 44)

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The ALJ noted that a physical exam in January of 2014 indicated that her legs had

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normal range of motion and no swelling. (Tr. 45-46) The records state, “[o]n visual inspection,

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no swelling, edema or redness.” (Tr. 45) “Would not allow for range of motion exam.” (Tr.

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45) “Noted to be ambulating without an issue.” (Tr. 45-46) Bryant disagreed with those

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records. (Tr. 46) She said she gets angry with her doctors because “they make me seem like

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there’s nothing wrong with me, and I know there’s something wrong with my legs.” (Tr. 50)

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The ALJ took testimony from vocational expert Kathleen McAlpine. (Tr. 53) She

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testified that Bryant’s past work in demolition was very heavy and unskilled. (Tr. 54)

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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. § 416.920. The first step

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requires a determination of whether the claimant is engaged in substantial gainful activity. 20

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C.F.R. § 416.920(a)(4). If so, then the 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 severe impairment or

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combination of impairments. 20 C.F.R. § 416.920(a)(4). In making a determination at step two,

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the ALJ uses medical evidence to consider whether the claimant’s impairment significantly

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limits or restricts his or her physical or mental ability to do basic work activities. 20 C.F.R. §

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416.920(c). 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. § 416.920(a)(4); 20 C.F.R. Pt. 404, Subpt. P, App.1. If the claimant’s impairment meets

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or equals one of the listed impairments, then the claimant is presumed to be disabled, and no

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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. § 416.920(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 claimant’s age, education, and work

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experience. 20 C.F.R. § 416.920(a)(4).

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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. § 416.945.
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In determining whether the claimant retains the ability to perform other work, the ALJ

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may refer to the Medical Vocational Guidelines (“the Grids”) promulgated by the SSA. See 20

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C.F.R. 416.969; 20 C.F.R. Pt. 404, Subpt. P, App.2; Desrosiers v. Secretary of Health and

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Human Services, 846 F.2d 573, 576-577 (9th Cir. 1988). The Grids categorize jobs according

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to their exertional requirements such as sedentary work, light work, or medium work. Tackett

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v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999). The Grids calculate whether or not the claimant

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is disabled based on the claimant’s exertional ability, age, education, and work experience. Id.

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The Grids are a valid basis for denying claims where they completely and accurately describe

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the claimant’s abilities and limitations. Id. at 1101-02. If the claimant has only exertional

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limitations, the claim may be resolved based only on the Grids. Lounsburry v. Barnhart, 468

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F.3d 1111, 1115 (9th Cir. 2006).

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If the claimant has significant non-exertional limitations, the Grids do not apply. Penny

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v. Sullivan, 2 F.3d 953, 958-959 (9th Cir.1993). “Non-exertional limitations are limitations that

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do not directly affect a claimant’s strength.” Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir.

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1988). Mental limitations, for example, are non-exertional. Id. at 1340-41. If non-exertional

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limitations prevent the claimant from performing a significant portion of the full range of work

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in any exertional category, the ALJ must take the testimony of a vocational expert to deny the

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claim. Id. at 1341.

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The ALJ’s Findings

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At step one of the disability analysis, the ALJ found Bryant “has not engaged in

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substantial gainful activity since October 17, 2012, the application date. . . .” (Tr. 19) At step

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two, he found Bryant “has the following severe impairments: obesity and low back disorder.

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. . .” (Tr. 19)

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At step three, the ALJ found Bryant’s impairments did not meet or equal the criteria for

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any impairment found in the Listing of Impairments, Appendix 1, Subpart P, of 20 C.F.R., Part

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404. (Tr. 23)

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The ALJ then analyzed Bryant’s residual functional capacity (RFC). He found “the

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claimant had the residual functional capacity to perform the full range of light work as defined

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in 20 CFR 416.967(b).” (Tr. 23) “She can lift/carry 20 pounds occasionally and 10 pounds

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frequently. She can sit for 6-8 hours in an 8-hour day, and stand/walk for 6-8 hours in an 8-hour

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day. She can occasionally climb ramps/stairs, and ladders, ropes and scaffolds. She can

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occasionally kneel, crouch, and crawl. She can frequently stoop. She has no manipulative or

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environmental limitations. She has no severe mental limitations.” (Tr. 23) It appears that this

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is the RFC given by Hassman, the examining physician. (Tr. 404-05)

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At step four, the ALJ found Bryant cannot perform any past relevant work. (Tr. 27) He

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noted that Bryant is 35 years old, has an eighth-grade education, and worked in an unskilled job.

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(Tr. 27) At step five, the ALJ found using the Grids that “there are jobs that exist in significant

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numbers in the national economy that the claimant can perform.” (Tr. 27) (citing Rule 202.17,

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20 C.F.R. Part 404, Subpart P, Appendix 2.)

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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), 1382c(a)(3)(A). “[A]

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claimant will be found disabled only if the impairment is so severe that, considering age,

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education, and work experience, that person cannot engage in any other kind of substantial

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gainful work which exists in the national economy.” Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir.

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1993).

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The findings of the Commissioner are meant to be conclusive. 42 U.S.C. §§ 405(g),

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1383(c)(3). The decision to deny benefits “should be upheld unless it contains legal error or is

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not supported by substantial evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).

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Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept

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as adequate to support a conclusion.” Id. It is “more than a mere scintilla but less than a

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preponderance.” Id.

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“Where evidence is susceptible to more than one rational interpretation, the

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[Commissioner’s] decision should be upheld.” Orn, 495 F.3d at 630. “However, a reviewing

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court must consider the entire record as a whole and may not affirm simply by isolating a

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specific quantum of supporting evidence.” Id.

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The Commissioner need not accept the claimant’s subjective testimony of disability, but

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if she decides to reject it, “she must provide specific, cogent reasons for the disbelief.” Lester,

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81 F.3d 821, 834 (9th Cir. 1995). “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 [Commissioner]

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must identify what testimony is not credible and what evidence undermines the claimant’s

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complaints.” Id.

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Discussion: Mental Impairment at Step Two

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Bryant argues first that the ALJ erred at step two of the disability analysis by failing to

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find that her mental impairments were “severe.” She argues that the ALJ improperly discounted

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the opinion of the examining physician Rau and overlooked “substantial evidence” that supports

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his opinions. (Doc. 15, pp. 10-13)

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The medical record contains reports from two examining physicians: a report from

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James Rau, Ph.D., describing his examination conducted in February of 2013 and a report from

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Gwendolyn W. Johnson, Ph.D., describing her examination conducted in October of 2013. The

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reports document Bryant’s mental impairment, about which the two physicians are in general

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agreement. Rau diagnosed Bryant with mood disorder, not otherwise specified (NOS), anxiety

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disorder, NOS, and polysubstance dependence in sustained full remission. (Tr. 371) Johnson

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diagnosed Bryant with mood disorder, NOS, and polysubstance dependence, by history. (Tr.

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410) The two physicians differed substantially, however, in their assessment of the degree of

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functional limitation resulting from her mental impairments. When Rau administered the Mini
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Mental Status exam, Bryant scored 23/30, which is well in the impaired range. (Tr. 370) He

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opined that she was moderately limited in the functional areas of Understanding and Memory,

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Sustained Concentration and Persistence, Social Interaction, and Adapting to Change. (Tr. 372-

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373) Johnson found Bryant much less limited. When she administered the Mini Mental Status

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exam, Bryant scored 28/30. (Tr. 410) Johnson found no evidence of impairment in the

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functional areas of Understanding and Memory, Sustained Concentration and Persistence,

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Social Interaction, and Adaptation. (Tr. 411)

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The ALJ noted this discrepancy and decided to adopt the opinion of Johnson and

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discount the opinion of Rau because the former was consistent with the treatment notes from

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La Frontera. (Tr. 21-22) He noted that Bryant had received treatment there from April of 2012

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to October of 2013. (Tr. 21); see (Tr. 272-287); (Tr. 394-398); (Tr. 436-491) “The progress

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notes indicate that the claimant responded well to treatment with some medication adjustments

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and individual therapy.” (Tr. 21) “Her main concerns were finances, health, and family issues.”

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(Tr. 21); see (Tr. 279; 398) “Her mental status examinations were within normal limits, with

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the exception of some anxious and depressed mood with congruent affect.” (Tr. 21); see (Tr.

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278, 395, 398) The ALJ concluded that Bryant suffers only mild limitation in the functional

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areas of activities of daily living; social functioning; and concentration, persistence or pace.

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(Tr. 22-23) She had no episodes of decompensation. (Tr. 23) Accordingly, the ALJ found

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Bryant’s mental impairment to be non-severe. Substantial evidence supports the ALJ’s decision

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to place more weight on Johnson’s opinion than on Rau’s.

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Bryant argues to the contrary that substantial evidence supports Rau’s opinion. (Doc.

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15, p. 12) The medical record contains references to unstable moods, anger, and irritability.

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Id. She has anxiety around large groups of people and feelings of being overwhelmed. Id.

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Bryant’s argument, however, disregards this court’s standard of review. As long as the ALJ’s

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decision is supported by substantial evidence, as it is here, it should be upheld. See Orn v.

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Astrue, 495 F.3d 625, 630 (9th Cir. 2007). It does not matter if the evidence could support a

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different conclusion.

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interpretation, the ALJ’s decision should be upheld.” ).

Id. (“Where evidence is susceptible to more than one rational

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Discussion: RFC Calculation

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Bryant further argues that the ALJ failed to take all of her impairments, the severe and

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the non-severe, into account when calculating her residual functional capacity (RFC).

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Specifically she argues that the ALJ failed to take into account her mental, knee, and hip

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impairments. (Doc. 15, p. 13-14)

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At step four, the ALJ must take into account all of the claimant’s impairments, the severe

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and the non-severe, when calculating the claimant’s RFC. In this case, it appears that the ALJ

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did just that.

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The ALJ states explicitly that his “residual functional capacity assessment reflects the

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degree of limitation [he] found in [the] ‘paragraph B’ mental functional analysis.” (Tr. 23)

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Accordingly, the ALJ did incorporate Bryant’s mental limitations into his RFC evaluation.

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Bryant may dispute the ALJ’s assessment of the severity her mental limitations, but it appears

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that ALJ did incorporate those limitations into her RFC.

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Moreover, it appears that the ALJ incorporated into Bryant’s RFC his assessment of all

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of her physical limitations, including those caused by her knee and hip impairments. The ALJ

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states that in making his finding of her RFC, he considered “all symptoms and the extent to

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which these symptoms can reasonably be accepted as consistent with the objective medical

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evidence and other evidence based on the requirements of 20 CFR 416.929 and SSRs 96-4p and

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96-7p.” (Tr. 23) His RFC finding seems to be based on the opinion of the examining physician

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Jeri B. Hassman. (Tr. 25) Hassman gave Bryant a complete examination noting, among other

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things, the degree of limitation caused by her hip and knee pain. (Tr. 25) Her findings were

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incorporated into her assessment of Bryant’s ability to lift, carry, sit, stand, and walk, and her

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assessment of Bryant’s postural restrictions. (Tr. 404-405) The ALJ, in turn, adopted these

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limitations into his RFC calculation. (Tr. 23) The ALJ incorporated into his RFC calculation

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the limitations caused by all of Bryant’s impairments, the severe and the non-severe.

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Discussion: Developing the Record

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Bryant further argues that the ALJ failed in his duty to develop the record. Specifically,

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she argues that the disagreement between the examining physicians, Rau and Johnson, as to the

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extent of her mental impairment triggered a duty to engage a third examining physician. (Doc.

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15, pp. 14-16)

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“The ALJ in a social security case has an independent duty to fully and fairly develop

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the record and to assure that the claimant's interests are considered.” Tonapetyan v. Halter, 242

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F.3d 1144, 1150 (9th Cir. 2001) (punctuation modified). “Ambiguous evidence, or the ALJ's

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own finding that the record is inadequate to allow for proper evaluation of the evidence, triggers

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the ALJ's duty to conduct an appropriate inquiry.” Id. “The ALJ may discharge this duty in

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several ways, including: subpoenaing the claimant’s physicians, submitting questions to the

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claimant’s physicians, continuing the hearing, or keeping the record open after the hearing to

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allow supplementation of the record.” Id.

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In this case, there was a disagreement between the examining physicians, Rau and

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Johnson, as to the extent of Bryant’s mental limitations. This disagreement, however, is not an

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“ambiguity” that triggers the ALJ’s duty to augment the record. See Gideon v. Colvin, 2015 WL

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5598982, at *7 (E.D. Cal. 2015) (“[D]iffering medical opinions about the severity of Plaintiff’s

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mental impairment” did not constitute an “inadequac[y] or ambiguit[y]” that would trigger the

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ALJ’s duty to develop the record.). It is simply an issue that must be resolved by the ALJ. And

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here, the ALJ resolved that conflict by determining which opinion was more consistent with the

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medical record. See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir.1995) (If medical opinions

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differ, “it is then solely the province of the ALJ to resolve the conflict.”); Gideon v. Colvin,

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2015 WL 5598982, at *7 (E.D. Cal. 2015) (“While Plaintiff points to differing medical

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opinions about the severity of Plaintiff’s mental impairment, it is the province of the ALJ to

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resolve conflicts in the medical opinions, and she did so properly here by giving less weight to

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Dr. Schaeffer’s opinion because it was inconsistent with the record as a whole.”).

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Assuming for the sake of argument that the duty to augment the record was triggered,

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the ALJ fulfilled this duty by holding the record open after the hearing and allowing Bryant to

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file a supplement. See (Tr. 38-39; 55-56); Tonapetyan, 242 F.3d at 1150.
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Discussion: Physician’s Assistant Nicole James

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Bryant further argues that the ALJ improperly discounted the opinion of physician’s

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assistant Nicole James. (Doc. 15, p. 16-18) In an undated Work Release form, James opined

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that Bryant could stand, walk, or sit for less than 2 hours per day. (Tr. 616) She could lift and

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carry 20 pounds for less than 2 hours per day. (Tr. 617) This opinion limits Bryant to less than

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sedentary work. The ALJ gave the opinion “no weight” because he found “it is overly

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restrictive, and inconsistent and inadequately supported by the medical evidence of records.”

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(Tr. 25)

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The ALJ’s evaluation of James’s opinion is brief but adequate. The ALJ may discount

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a medical opinion that is not consistent with the medical record. Moreover, as the ALJ

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observed, James does not indicate what part of the medical record she relied on to support her

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work restrictions.

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The court further notes that James’s opinion conflicts with Hassman’s opinion, and

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because Hassman, unlike James, is an “acceptable medical source,” her opinion should

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ordinarily receive deference. See Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012)

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(“[O]nly licensed physicians and certain other qualified specialists are considered ‘acceptable

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medical sources’”); 20 C.F.R. 416.913(a)(1) (2016). The court notes for completeness that the

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rule on “acceptable medical sources” has changed since the Appeals Council denied review in

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this case. Bryant does not argue that the new rules should apply to her case. See (Doc. 15, p.

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16) (noting that “[f]or claims filed before March 27, 2017, physician’s assistants are not

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considered ‘acceptable medical sources.’”).

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Discussion: Step Five Analysis

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Bryant argues in her supplemental brief that the ALJ failed at step five of the disability

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analysis to establish that there are significant numbers of jobs in the economy that Bryant can

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perform. (Doc. 16) Specifically, she argues that the ALJ failed to establish that she has the

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academic skills necessary to perform “even the simplest, unskilled work.” Id.
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At step five, the ALJ concluded that Bryant was not disabled by referring to Grid Rule

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202.17. (Tr. 28); 20 C.F.R. 416.969; 20 C.F.R. Pt. 404, Subpt. P, App.2 This Rule applies to

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claimants who are limited to light work, are younger individuals, are “at least literate and able

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to communicate in English,” and whose previous work is “unskilled or none.” 20 C.F.R. Pt.

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404, Subpt. P, App.2, Table No. 2 Under this Rule, the claimant is not disabled. Id., Rule

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202.17.

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Bryant argues that the ALJ failed to determine whether or not she has the educational or

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cognitive requirements necessary for the Grids to apply to her. The court does not agree. The

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ALJ adopted the assessment of the examining physician, Johnson, who assessed the degree of

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Bryant’s mental impairment. Johnson noted that Bryant “stopped going to school in the 8th

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grade and that she had attended regular classes and was receiving poor grades when she stopped

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going.” (Tr. 408) After her examination, Johnson opined that Bryant was “intact cognitively.”

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(Tr. 410) She found that Bryant’s “intellectual levels appeared average and her attention was

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good.” (Tr. 410) She found “[n]o evidence of impairment” in the area of “understanding and

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memory” and “sustained concentration and persistence.” (Tr. 411) Johnson found no cognitive

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impairments or educational deficits that would impose any functional limitations, and the ALJ

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adopted her opinion. (Tr. 21-22, 411) The findings of the ALJ support his use of Grid Rule

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202.17. The court further notes that even if Bryant were absolutely illiterate, the Grids would

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still result in a finding of “not disabled” under Rule 202.16. See 20 C.F.R. Pt. 404, Subpt. P,

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App.2, Table No. 2.

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Bryant argues there is evidence in the record that indicates her cognitive abilities are

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more limited than ALJ will acknowledge. This argument, however, fails to recognize the

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court’s standard of review. If substantial evidence supports the ALJ’s evaluation of her

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cognitive ability, and it does so here, than the decision of the ALJ must be upheld even though

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the evidence could support a different conclusion. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir.

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2007) (“Where evidence is susceptible to more than one rational interpretation, the ALJ’s

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decision should be upheld.” ).

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In her reply brief, Bryant argues the ALJ’s use of the light work Grid at step five

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conflicts with his finding that “she is limited to only occasional kneeling, crouching, crawling

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and climbing.” (Doc. 18, p. 2) This court will not consider issues raised for the first time in a

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reply brief. See, e.g., Thompson v. C. I. R., 631 F.2d 642, 649 (9th Cir. 1980). In the alternative,

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the court finds that these postural limitations do not significantly impair Bryant’s ability to

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perform light work. See Parsons v. Comm'r of Soc. Sec., 2012 WL 4468542, at *9 (E.D. Cal.

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26, 2012) (“Given that the non-exertional limitations noted by plaintiff—occasional postural

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activities and occasional interactions with others—do not significantly erode the occupational

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base of light work, see Social Security Ruling 85–15, the ALJ properly relied on the Grids.”).

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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 27th day of November, 2017.

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