Jacqueline Womack v. Carolyn W. Colvin

Filing 16

MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment on counsel for both parties. (See Order for details) 1 (bem)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JACQUELINE WOMACK,

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Plaintiff,

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vs.

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CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,

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Defendant.

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) Case No. CV 13-7094-JPR
)
)
) MEMORANDUM OPINION AND ORDER
) AFFIRMING THE COMMISSIONER
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)

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17 I.

PROCEEDINGS

18

Plaintiff seeks review of the Commissioner’s final decision

19 denying her application for Social Security disability insurance
20 benefits (“DIB”).

The parties consented to the jurisdiction of

21 the undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c).
22 This matter is before the Court on the parties’ Joint
23 Stipulation, filed June 11, 2014, which the Court has taken under
24 submission without oral argument.

For the reasons discussed

25 below, the Commissioner’s decision is affirmed and judgment is
26 entered in her favor.
27 II.

BACKGROUND

28

Plaintiff was born on March 14, 1949.
1

(Administrative

1 Record (“AR”) 38.)

She has 13 years of education.

(AR 54.)

She

2 previously worked as an appointment clerk and an auto-loan
3 representative.1
4

(AR 136.)

On July 9, 2010, Plaintiff filed an application for DIB,

5 alleging a disability onset date of June 13, 2009.2

(AR 117.)

6 Plaintiff claimed to be disabled because of osteoarthritis,
7 history of carpal tunnel syndrome, diabetes mellitus, and
8 obesity.
9 2010.

(AR 20.)

(AR 57.)

Her application was denied on December 15,

Plaintiff requested reconsideration (AR 63), and

10 on April 11, 2011, her application was denied again (AR 64-68).
11

She then requested a hearing before an Administrative Law

12 Judge.

(AR 70-71.)

A hearing was held on November 21, 2011, at

13 which Plaintiff, who was represented by counsel, testified.
14 38-51.)

A vocational expert also testified.

(AR 46-49.)

(AR

On

15 December 15, 2011, the ALJ issued a written decision finding
16 Plaintiff not disabled.

(AR 15-25.)

On February 8, 2012,

17 Plaintiff requested review of the ALJ’s decision (AR 14); on
18 August 1, she submitted additional medical evidence for the
19 Appeals Council to review (AR 261-63).

On August 7, 2013, the

20 Appeals Council considered the additional evidence, a two-page
21 Residual Functional Capacity questionnaire filled out by
22 Plaintiff’s treating doctor in June 2012, but denied Plaintiff’s
23
1

Although Plaintiff listed
including
24 “[s]alesperson,” on her disabilitythree previous jobs,the hearing
report (AR 136), at
25 she testified that she was never a salesperson (AR 48) and that
“the only type of work” she had performed was “data entry” (AR 42).

26
2

In her disability report, Plaintiff wrote that she stopped

27 working on June 13, 2009, “because of [her] conditions” (AR 135)
but testified at the hearing that she stopped because she was “laid
28 off” (AR 40).
2

1 request for review.

(AR 1-3.)

This action followed.

2 III. STANDARD OF REVIEW
3

Under 42 U.S.C. § 405(g), a district court may review the

4 Commissioner’s decision to deny benefits.

The ALJ’s findings and

5 decision should be upheld if they are free of legal error and
6 supported by substantial evidence based on the record as a whole.
7 § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra
8 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).

Substantial

9 evidence means such evidence as a reasonable person might accept
10 as adequate to support a conclusion.

Richardson, 402 U.S. at

11 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007).
12 It is more than a scintilla but less than a preponderance.
13 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec.
14 Admin., 466 F.3d 880, 882 (9th Cir. 2006)).

To determine whether

15 substantial evidence supports a finding, the reviewing court
16 “must review the administrative record as a whole, weighing both
17 the evidence that supports and the evidence that detracts from
18 the Commissioner’s conclusion.”
19 720 (9th Cir. 1996).

Reddick v. Chater, 157 F.3d 715,

“If the evidence can reasonably support

20 either affirming or reversing,” the reviewing court “may not
21 substitute its judgment” for that of the Commissioner.

Id. at

22 720-21.
23 IV.

THE EVALUATION OF DISABILITY

24

People are “disabled” for purposes of receiving Social

25 Security benefits if they are unable to engage in any substantial
26 gainful activity owing to a physical or mental impairment that is
27 expected to result in death or which has lasted, or is expected
28 to last, for a continuous period of at least 12 months.
3

42

1 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257
2 (9th Cir. 1992).
3

A.

4

The ALJ follows a five-step sequential evaluation process in

The Five-Step Evaluation Process

5 assessing whether a claimant is disabled.

20 C.F.R.

6 § 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th
7 Cir. 1995) (as amended Apr. 9, 1996).

In the first step, the

8 Commissioner must determine whether the claimant is currently
9 engaged in substantial gainful activity; if so, the claimant is
10 not disabled and the claim must be denied.

§ 404.1520(a)(4)(i).

11 If the claimant is not engaged in substantial gainful activity,
12 the second step requires the Commissioner to determine whether
13 the claimant has a “severe” impairment or combination of
14 impairments significantly limiting her ability to do basic work
15 activities; if not, a finding of not disabled is made and the
16 claim must be denied.

§ 404.1520(a)(4)(ii).

If the claimant has

17 a “severe” impairment or combination of impairments, the third
18 step requires the Commissioner to determine whether the
19 impairment or combination of impairments meets or equals an
20 impairment in the Listing of Impairments (“Listing”) set forth at
21 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is
22 conclusively presumed and benefits are awarded.
23 § 404.1520(a)(4)(iii).

If the claimant’s impairment or

24 combination of impairments does not meet or equal an impairment
25 in the Listing, the fourth step requires the Commissioner to
26 determine whether the claimant has sufficient residual functional
27
28
4

1 capacity (“RFC”)3 to perform her past work; if so, the claimant
2 is not disabled and the claim must be denied.
3 § 404.1520(a)(4)(iv).

The claimant has the burden of proving she

4 is unable to perform past relevant work.
5 1257.

Drouin, 966 F.2d at

If the claimant meets that burden, a prima facie case of

6 disability is established.

Id.

If that happens or if the

7 claimant has no past relevant work, the Commissioner then bears
8 the burden of establishing that the claimant is not disabled
9 because she can perform other substantial gainful work available
10 in the national economy.

§ 404.1520(a)(4)(v).

That

11 determination comprises the fifth and final step in the
12 sequential analysis.

§ 404.1520; Lester, 81 F.3d at 828 n.5;

13 Drouin, 966 F.2d at 1257.
14

B.

15

At step one, the ALJ found that Plaintiff had not engaged in

The ALJ’s Application of the Five-Step Process

16 any substantial gainful activity since June 13, 2009, the alleged
17 onset date.

(AR 20.)

At step two, he concluded that Plaintiff

18 had the severe impairments of “osteoarthritis, history of carpal
19 tunnel syndrome, diabetes mellitus, and obesity.”

(Id.)

At step

20 three, he determined that Plaintiff’s impairments did not meet or
21 medically equal any of the impairments in the Listing.

(Id.)

At

22 step four, he found that Plaintiff was able to perform a full
23 range of light work at all exertional levels.

(AR 21.)

The ALJ

24 specifically rejected Plaintiff’s complaints of pain because she
25 had received only “conservative treatment for joint pain and
26
27
28

3

RFC is what a claimant can do despite existing exertional and
nonexertional limitations. 20 C.F.R. § 404.1545; see Cooper v.
Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989).
5

1 diabetes” (id.) and because she was “not consistent in her
2 reports to her medical providers and her allegations” (id.).
3 Plaintiff has not challenged that ruling.

(J. Stip. at 3.)

4 Based on the VE’s testimony, the ALJ concluded that Plaintiff
5 could perform her past relevant work as an appointment clerk and
6 a data-entry clerk.

(AR 22.)

7 Plaintiff was not disabled.

Accordingly, he determined that

(AR 18.)

8 V.

DISCUSSION

9

The New Evidence Submitted to the Appeals Council Does Not

10

Warrant Reversal

11

Plaintiff alleges that the additional evidence she submitted

12 to the Appeals Council renders the ALJ’s RFC assessment
13 unsupported by substantial evidence for the period from July 7,
14 2011, through December 15, 2011, the date of the ALJ’s decision.
15 (J. Stip. at 4-6.)
16
17

A.

Reversal is not warranted.

Applicable law

A district court must uphold an ALJ’s RFC assessment when

18 the ALJ has applied the proper legal standard and substantial
19 evidence in the record as a whole supports the decision.
20 v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005).

Bayliss

The ALJ must

21 consider all the medical evidence in the record and “explain in
22 [his] decision the weight given to . . . [the] opinions from
23 treating sources, nontreating sources, and other nonexamining
24 sources.”

20 C.F.R. § 404.1527(e)(2)(ii); see also

25 § 404.1545(a)(1) (“We will assess your residual functional
26 capacity based on all the relevant evidence in your case
27 record.”); SSR 96-8p, 1996 WL 374184, at *2 (July 2, 1996) (RFC
28 must be “based on all of the relevant evidence in the case
6

1 record”).

In making an RFC determination, the ALJ may consider

2 those limitations for which there is support in the record and
3 need not consider properly rejected evidence or subjective
4 complaints.

See Bayliss, 427 F.3d at 1217 (upholding ALJ’s RFC

5 determination because “the ALJ took into account those
6 limitations for which there was record support that did not
7 depend on [claimant’s] subjective complaints”); Batson v. Comm’r
8 of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (ALJ not
9 required to incorporate into RFC findings from treating-physician
10 opinions that were “permissibly discounted”).
11

Moreover, Social Security Administration regulations “permit

12 claimants to submit new and material evidence to the Appeals
13 Council and require the Council to consider that evidence in
14 determining whether to review the ALJ’s decision, so long as the
15 evidence relates to the period on or before the ALJ’s decision.”
16 Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th
17 Cir. 2012); see also 20 C.F.R. § 404.970(b).

“[W]hen the Appeals

18 Council considers new evidence in deciding whether to review a
19 decision of the ALJ, that evidence becomes part of the
20 administrative record, which the district court must consider
21 when reviewing the Commissioner’s final decision for substantial
22 evidence.”

Brewes, 682 F.3d at 1163; accord Taylor v. Comm’r of

23 Soc. Sec. Admin., 659 F.3d 1228, 1232 (9th Cir. 2011); see also
24 Borrelli v. Comm’r of Soc. Sec., __ F. App’x __, 2014 WL 1492736,
25 at *1 (Apr. 17, 2014) (remand necessary when “reasonable
26 possibility” exists that “the new evidence might change the
27 outcome of the administrative hearing”).
28
7

1

B.

2

Relevant facts4

The medical evidence of record from February 8, 2007, to May

3 13, 2010, demonstrates that Plaintiff visited Genesis Medical
4 Clinic for routine medical check-ups.

(AR 209-33.)

Plaintiff’s

5 treatment plan consisted of prescribed medication, primarily for
6 diabetes, hypertension, heart disease, and obesity.
7

(Id.)

On December 13, 2010, medical consultant Dr. Walter W. Bell,

8 who specialized in internal medicine,5 reviewed Plaintiff’s
9 medical records and completed a Physical Residual Functional
10 Capacity Assessment.

(AR 234-41.)

Dr. Bell noted Plaintiff’s

11 diagnoses as carpal tunnel syndrome, diabetes, and obesity.
12 234.)

(AR

He determined that she could lift and carry 50 pounds

13 occasionally and 25 pounds frequently; stand and walk for about
14 six hours and sit for about six hours in an eight-hour workday;
15 and push and pull unlimitedly.

(AR 235.)

Dr. Bell also noted

16 that Plaintiff’s medical records showed that she “denied joint
17 pain, muscle pain, or back pain” and had “no joint restriction”;
18 her “extremities revealed no edema or foot ulcers”; and her
19 respiratory rate and rhythm were normal.

(AR 235-36.)

Dr. Bell

20 found that Plaintiff had no postural, manipulative, visual,
21 communicative, or environmental limitations.

(AR 234-41.)

The

22 ALJ gave “significant weight” to Dr. Bell’s opinion because it
23
4
Because the parties
facts, they are
24 summarized here only to the are familiar with the contested issue.
extent relevant to the
25
5

26
27
28

Dr. Bell’s electronic signature includes a medical specialty
code of 19, indicating internal medicine. (AR 241); see Program
Operations Manual System (POMS) DI 26510.089, U.S. Soc. Sec. Admin.
(Oct. 25, 2011), http://policy.ssa.gov/poms.nsf/lnx/0426510089;
POMS DI 26510.090, U.S. Soc. Sec. Admin. (Aug. 29, 2012),
http://policy.ssa.gov/poms.nsf/lnx/0426510090.
8

1 was “consistent with the medical evidence of record.”
2

(AR 22.)

Dr. Donald Hemphill treated Plaintiff from May 11 to August

3 4, 2011.6

(AR 243-58.)

On May 11, 2011, Dr. Hemphill noted that

4 Plaintiff’s hypertension was in “poor control” and prescribed
5 medication.

(AR 249.)

On May 27, 2011, he reviewed Plaintiff’s

6 lab results; listed her diagnoses as diabetes, hypertension, and
7 high cholesterol; and refilled her medications.

(AR 247.)

On

8 July 7, 2011, he performed an annual physical exam, reviewed
9 Plaintiff’s previous lab reports, and listed Plaintiff’s
10 conditions as decreased thyroid functions, arthritis of the knees
11 and right hip, hypertension, diabetes, and high cholesterol.
12 246.)

(AR

He listed her medications as Carvedilol,7 Levothyroxine,8

13
14
15
16
17
18
19
20
21
22

6

23

7

24
25
26
27
28

Parts of Dr. Hemphill’s treatment notes are illegible.

Carvedilol is a beta-blocker used to treat heart failure and
high blood pressure. Carvedilol, MedlinePlus, http://www.nlm.nih.
gov/medlineplus/druginfo/meds/a697042.html (last revised Aug. 15,
2013).
8

Levothyroxine, a thyroid hormone, is used to treat
hypothyroidism, a condition in which the thyroid gland does not
produce enough thyroid hormone.
Levothyroxine, MedlinePlus,
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682461.html (last
revised Aug. 15, 2013).
9

1 Metformin,9 Lisinopril,10 and Pravastatin.11

(AR 246; see also AR

2 243-44, 247 (listing Plaintiff’s medications).)

On July 11,

3 2011, Dr. Hemphill reviewed lab results and prescribed
4 medication.

(AR 244.)

On August 4, 2011, he discussed results

5 of previously ordered tests, prescribed medication, requested a
6 colonoscopy and eye examination, and recommended a return
7 appointment in two months.
8

(AR 243.)

On December 15, 2011, the ALJ found Plaintiff not disabled.

9 (AR 18-22.)

In doing so, he noted that Plaintiff received only

10 “sparse” and “conservative” treatment from Genesis Medical Clinic
11 and Dr. Hemphill for her allegedly disabling conditions, in the
12 form of medication for joint pain and diabetes.

(AR 21.)

The

13 ALJ gave “significant weight” to Dr. Bell’s assessment that
14 Plaintiff could perform work at the medium exertional level
15 “because it [was] consistent with the medical evidence of
16 record.”

(AR 22.)

Nevertheless, the ALJ ultimately concluded

17
18
19
20
21
22
23

9

Metformin is used alone or with other medications, including
insulin, to treat type 2 diabetes.
Metformin, MedlinePlus,
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a696005.html (last
revised Feb. 15, 2014).
10

Lisinopril is used alone or in combination with other
24 medications to treat high blood pressure. Lisinopril, MedlinePlus,
25 http://www.nlm.nih.gov/medlineplus/druginfo/meds/a692051.html (last
updated Sept. 15, 2012).

26
11

Pravastatin

is

a

statin

used

to

reduce

the

amount

of

27 cholesterol and other fatty substances in the blood. Pravastatin,
MedlinePlus,
http://www.nlm.nih.gov/medlineplus/druginfo/meds/
28 a692025.html (last revised May 15, 2013).
10

1 that Plaintiff was limited to light work,12 in consideration of
2 her allegations of various limitations.
3

(Id.)

Plaintiff requested review of the ALJ’s decision and

4 submitted an additional medical record to the Appeals Council, a
5 two-page check-off RFC questionnaire completed on June 20, 2012,
6 by treating physician Dr. Hemphill.

(AR 262-63.)

The Council

7 reviewed the new evidence and ordered that it be made part of the
8 administrative record (AR 5) but “found that this information
9 does not provide a basis for changing the [ALJ’s] decision” (AR
10 2).
11

In the questionnaire, Dr. Hemphill concluded, in contrast to

12 Dr. Bell’s RFC assessment (AR 234-41), that Plaintiff could sit
13 less than 30 minutes and stand or walk less than 30 minutes at a
14 time and could sit less than two hours and stand or walk less
15 than two hours in an eight-hour day (AR 262).

He found that

16 Plaintiff could rarely lift up to 10 pounds and never more than
17 that.

(Id.)

Plaintiff could rarely use her hands for handling,

18 pushing, pulling, or fine manipulation and had poor manual and
19 finger dexterity.

(Id.)

Dr. Hemphill found that Plaintiff could

20 never bend, stoop, squat, crawl, crouch, or kneel and could
21 rarely reach up or forward.

(Id.)

As to all of these

22 limitations, Dr. Hemphill left blank the spaces in which to write
23
12

“Light work” involves “lifting no more than 20 pounds at a

24 time with frequent lifting or carrying of objects weighing up to 10
25 pounds.” § 404.1567(b). “Even though the weight lifted may be
26
27
28

very little, a job is in this category when it requires a good deal
of walking or standing, or when it involves sitting most of the
time with some pushing and pulling of arm or leg controls.” Id.
“To be considered capable of performing a full or wide range of
light work, [a claimant] must have the ability to do substantially
all of these activities.” Id.
11

1 what the “[l]imitations [were] due to.”
2

(Id.)

He also noted in the RFC questionnaire that Plaintiff could

3 not use either foot for operating foot controls because of foot
4 and ankle pain.

(AR 263.)

Dr. Hemphill found that because of

5 joint pain, Plaintiff could never drive or tolerate exposure to
6 unprotected heights, moving machinery, marked temperature
7 changes, or irritants and could rarely tolerate noise.

(Id.)

As

8 objective signs of pain, Dr. Hemphill listed “joint deformity,”
9 “x-ray,” and “muscle spasm.”

(Id.)

He stated that Plaintiff had

10 “major pain [and] limitation of motion of RT hip, RT arm
11 (entire)- RT thumb (no grip).”

(Id.)

He estimated Plaintiff’s

12 pain to be “marked,” meaning that it caused “serious limitations
13 in activities.”

(Id.)

Lastly, Dr. Hemphill concluded that July

14 7, 2011, was the earliest date that such limitations could have
15 existed.

(Id.)

16

C.

17

Discussion

Plaintiff concedes that the ALJ’s characterization of the

18 medical record as “containing sparse treatment” was an “accurate
19 summation of the record as a whole” and thus agrees with the
20 ALJ’s determination that Plaintiff was not disabled at any time
21 up to July 7, 2011.

(J. Stip. at 5.)

Plaintiff argues, however,

22 that the introduction of additional evidence, namely, Dr.
23 Hemphill’s questionnaire, effectively created “two discrete
24 periods” in her medical history.

(Id. at 5-6.)

Plaintiff argues

25 that the second period, running from July 7, 2011, until the
26 ALJ’s determination on December 15, 2011, requires a new inquiry
27 from the ALJ and warrants remand.
28 below, it does not.
12

(Id.)

For the reasons stated

1

Remand is not necessary because Dr. Hemphill’s two-page

2 questionnaire (AR 262-63) did nothing to undermine either of the
3 ALJ’s two stated reasons for rejecting Plaintiff’s allegations
4 and finding her not disabled: she had received only conservative
5 treatment and had made inconsistent statements (AR 21-22).

See

6 Boyd v. Colvin, 524 F. App’x 334, 336 (9th Cir. 2013) (remand not
7 warranted when new evidence did not “sufficiently undermine[]”
8 ALJ’s ruling).
9

After reviewing the evidence, the ALJ accurately found that

10 Plaintiff’s treatment was “conservative in nature” because Dr.
11 Hemphill’s treatment notes showed that Plaintiff had only
12 “received medication” to treat her allegedly disabling
13 conditions, and he found “no evidence” that Plaintiff’s
14 conditions “caused significant . . . complications.”

(AR 21.)

15 Dr. Hemphill’s questionnaire did not indicate or discuss any new
16 or additional treatment of any kind, conservative or not.

(AR

17 262-63); compare Lapeirre-Gutt v. Astrue, 382 F. App’x 662, 664
18 (9th Cir. 2010) (treatment with narcotic pain medication,
19 occipital nerve blocks, trigger-point injections, and cervical20 fusion surgery not conservative).
21

Similarly, Dr. Hemphill’s questionnaire did not provide any

22 additional evidence to undermine the ALJ’s finding that Plaintiff
23 “[was] not consistent in her reports . . . and her allegations”
24 because she had sometimes denied “joint or muscle pain and any
25 joint restriction.”

(AR 21 (citing AR 211).)

The check-off

26 questionnaire simply stated Dr. Hemphill’s conclusions regarding
27 Plaintiff’s conditions, with virtually no explanation.
28 63.)
13

(AR 262-

1

Thus, Dr. Hemphill’s questionnaire did not render the ALJ’s

2 RFC assessment unsupported by substantial evidence.
3 682 F.3d at 1163.

See Brewes,

Indeed, Dr. Hemphill’s opinion of Plaintiff’s

4 condition was unsupported by his own treatment notes, which
5 contained minimal, largely unrelated findings and showed
6 conservative treatment.

(Compare AR 262-63 (Dr. Hemphill’s

7 questionnaire) with AR 243-46 (Dr. Hemphill’s treatment notes));
8 see 20 C.F.R. § 404.1527(c)(2)(ii) (in assessing treating
9 doctor’s opinion, ALJ may consider “the treatment the source has
10 provided”); Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir.
11 2001) (ALJ permissibly rejected treating doctor’s conclusion that
12 claimant was disabled when it conflicted with, among other
13 things, the doctor’s prescribed “conservative course of
14 treatment”).

Moreover, medical evidence relevant to the period

15 in dispute consisted of only three treatment notes, dated July 7,
16 July 11, and August 4, 2011, and they contained minimal findings.
17 (See AR 243-46); see also Orn v. Astrue, 495 F.3d 625, 631 (9th
18 Cir. 2007) (factors in assessing treating physician’s opinion
19 include length of treatment relationship, frequency of
20 examination, and nature and extent of treatment relationship);
21 accord 20 C.F.R. § 404.1527(c)(2).
22

Additionally, although Dr. Hemphill’s two-page check-off

23 questionnaire contained conclusions contradicting the medical
24 evidence of record and Dr. Bell’s RFC assessment, it did not
25 provide any explanation to support those conclusions.

(AR 262-

26 63); see Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002)
27 (ALJ “need not accept the opinion of any physician, including a
28 treating physician, if that opinion is brief, conclusory, and
14

1 inadequately supported by clinical findings”); accord Batson, 359
2 F.3d at 1195; see also De Guzman v. Astrue, 343 F. App’x 201, 209
3 (9th Cir. 2009) (ALJ was “free to reject” doctor’s check-off
4 report that did not explain basis for conclusion); Murray v.
5 Heckler, 722 F.2d 499, 501 (9th Cir. 1983) (expressing preference
6 for individualized medical opinions over check-off reports); Bray
7 v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227-28 (9th Cir.
8 2009) (upholding RFC determination when ALJ relied on
9 state-agency physician’s opinion over that of treating
10 physician).

Indeed, Dr. Hemphill either left blank the questions

11 in the questionnaire where he could explain his conclusions or,
12 as to some limitations, stated that they were based on
13 Plaintiff’s alleged joint pain and limitation of motion.
14 243-58, 262-63.)

(AR

But the ALJ specifically rejected Plaintiff’s

15 claims of disabling pain, a finding Plaintiff has not challenged.
16 (J. Stip. at 3); see Tonapetyan v. Halter, 242 F.3d 1144, 1149
17 (9th Cir. 2001) (when ALJ properly discounted claimant’s
18 credibility, he was “free to disregard” doctor’s opinion that was
19 premised on claimant’s subjective complaints).

And although Dr.

20 Hemphill cited x-ray, joint deformity, and muscle spasm as
21 “objective” signs of Plaintiff’s pain (AR 263), the record
22 contains no x-ray results or notations of joint deformity or
23 muscle spasm (AR 243-58).

See Valentine v. Comm’r, Soc. Sec.

24 Admin., 574 F.3d 685, 692-93 (9th Cir. 2009) (contradiction
25 between treating physician’s opinion and his treatment notes
26 constitutes specific and legitimate reason for rejecting treating
27 physician’s opinion).
28

Plaintiff nevertheless argues that Dr. Hemphill’s
15

1 determination that July 7, 2011, was the effective date of her
2 limitations “correlat[es]” with laboratory abnormalities in the
3 record.

(J. Stip. at 5.)

Dr. Hemphill, however, did not cite

4 any laboratory abnormalities in support of his assessment.
5 262-63.)

(AR

Indeed, whereas Dr. Hemphill listed joint pain and

6 limitation of motion as the reason for Plaintiff’s restricted
7 functioning (AR 263), the “abnormalities” noted in the lab
8 results arose from, for example, low HDL cholesterol (AR 254);
9 low white and red blood-cell, hemoglobin, hematocrit, and
10 neutrophils levels (AR 253); and elevated A1c, which was
11 “consistent with diabetes” (id.).
12

Because Dr. Hemphill’s opinion does not render the ALJ’s RFC

13 assessment unsupported by substantial evidence, remand is not
14 warranted.

See Bayliss, 427 F.3d at 1217; Marin v. Astrue, No.

15 CV 11–09331 AJW, 2012 WL 5381374, at *6 (C.D. Cal. Oct. 31, 2012)
16 (declining to reverse when new evidence submitted to Appeals
17 Council “does not alter the conclusion that the ALJ’s decision
18 was supported by substantial evidence in the record as a
19 whole”).13
20 VI.

CONCLUSION

21

Consistent with the foregoing, and pursuant to sentence four

22
23
13

Dr. Hemphill’s questionnaire was dated June 20, 2012, and

24 stated that Plaintiff’s limitations began at the earliest on July
25 7, 2011. (AR 263.) Nothing in it, however, stated that those
26
27
28

limitations “[could] be expected to result in death or [] [have]
lasted or [could] be expected to last for a continuous period of
not less than 12 months,” which Plaintiff must show to be
considered “disabled” for purposes of receiving Social Security
benefits. See 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966
F.2d 1255, 1257 (9th Cir. 1992).
16

1 of 42 U.S.C. § 405(g),14 IT IS ORDERED that judgment be entered
2 AFFIRMING the decision of the Commissioner and dismissing this
3 action with prejudice.

IT IS FURTHER ORDERED that the Clerk

4 serve copies of this Order and the Judgment on counsel for both
5 parties.
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10 DATED: July 24, 2014
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____________________
JEAN ROSENBLUTH
U.S. Magistrate Judge

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14

This sentence provides: “The [district] court shall have
power to enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing.”
17