Richard Calanche Rodarte v. M. Frink

Filing 33

MEMORANDUM OPINION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner, DENYING Plaintiff's request for remand, 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 Further Details) (kl)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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KATHLEEN J. SANCHEZ,
Plaintiff,

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v.

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CAROLYN W. COLVIN, Acting
Commissioner of Social
Security,

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Defendant.

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) Case No. EDCV 14-2204-JPR
)
)
) MEMORANDUM OPINION AND ORDER
) AFFIRMING COMMISSIONER
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)

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I.

PROCEEDINGS

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Plaintiff seeks review of the Commissioner’s final decision

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denying her application for Social Security disability insurance

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benefits (“DIB”).

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Joint Stipulation, filed August 13, 2015, which the Court has

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taken under submission without oral argument.

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stated below, the Commissioner’s decision is affirmed.

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II.

The matter is before the Court on the parties’

BACKGROUND
Plaintiff was born in 1967.

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For the reasons

(Administrative Record (“AR”)

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387.)

She completed one year of college and worked as a cashier,

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merchandiser, administrative assistant, and teacher’s aide.
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(AR

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421, 442.)

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On April 29, 2010, Plaintiff submitted an application for

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DIB, alleging that she had been unable to work since April 27,

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2009, because of bulging discs in her back and neck, degenerative

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disc disease, arthritis in her back, a “pinched nerve,”

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fibromyalgia, depression, and “mitral valve prolapse.”

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441-42.)

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reconsideration, she requested a hearing before an Administrative

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Law Judge.

(AR 387,

After her application was denied initially and on

(AR 85, 152.)

After postponements to allow Plaintiff

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to obtain a representative (AR 25-26, 29-30, 85), a hearing was

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held on January 26, 2012, at which Plaintiff, who was represented

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by counsel, appeared, as did a vocational expert and a medical

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expert.

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the ALJ found Plaintiff not disabled.

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(AR 31-53.)

In a written decision issued April 4, 2012,
(AR 85-97.)

On June 7, 2013, the Appeals Council granted Plaintiff’s

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request for review, vacated the ALJ’s decision, and remanded for

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resolution of certain enumerated issues.

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February 4, 2014, a second hearing was held, at which Plaintiff,

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who was represented by an attorney, and a different VE and ME

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testified.

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2014, the ALJ again found Plaintiff not disabled.

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On August 28, 2014, the Appeals Council denied Plaintiff’s

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request for review.

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III. STANDARD OF REVIEW

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(AR 54-79.)

(AR 105-08.)

On

In a written decision issued April 8,

(AR 1-5.)

(AR 113-29.)

This action followed.

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

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Commissioner’s decision to deny benefits.

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decision should be upheld if they are free of legal error and

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supported by substantial evidence based on the record as a whole.
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The ALJ’s findings and

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See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra

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v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).

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evidence means such evidence as a reasonable person might accept

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as adequate to support a conclusion.

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

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It is more than a scintilla but less than a preponderance.

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Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec.

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Admin., 466 F.3d 880, 882 (9th Cir. 2006)).

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substantial evidence supports a finding, the reviewing court

Substantial

Richardson, 402 U.S. at

To determine whether

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“must review the administrative record as a whole, weighing both

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the evidence that supports and the evidence that detracts from

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the Commissioner’s conclusion.”

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720 (9th Cir. 1996).

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either affirming or reversing,” the reviewing court “may not

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substitute its judgment” for the Commissioner’s.

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IV.

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

“If the evidence can reasonably support

Id. at 720-21.

THE EVALUATION OF DISABILITY

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People are “disabled” for purposes of receiving Social

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Security benefits if they are unable to engage in any substantial

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gainful activity owing to a physical or mental impairment that is

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expected to result in death or has lasted, or is expected to

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last, for a continuous period of at least 12 months.

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

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1992).

42 U.S.C.

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A.

The Five-Step Evaluation Process

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The ALJ follows a five-step sequential evaluation process to

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assess whether a claimant is disabled.

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§ 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th

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Cir. 1995) (as amended Apr. 9, 1996).
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20 C.F.R.

In the first step, the

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Commissioner must determine whether the claimant is currently

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engaged in substantial gainful activity; if so, the claimant is

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not disabled and the claim must be denied.

§ 404.1520(a)(4)(i).

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If the claimant is not engaged in substantial gainful

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activity, the second step requires the Commissioner to determine

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whether the claimant has a “severe” impairment or combination of

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impairments significantly limiting her ability to do basic work

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activities; if not, the claimant is not disabled and the claim

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must be denied.

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§ 404.1520(a)(4)(ii).

If the claimant has a “severe” impairment or combination of

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impairments, the third step requires the Commissioner to

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determine whether the impairment or combination of impairments

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meets or equals an impairment in the Listing of Impairments

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(“Listing”) set forth at 20 C.F.R. part 404, subpart P, appendix

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1; if so, disability is conclusively presumed.

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§ 404.1520(a)(4)(iii).

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If the claimant’s impairment or combination of impairments

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does not meet or equal an impairment in the Listing, the fourth

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step requires the Commissioner to determine whether the claimant

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has sufficient residual functional capacity (“RFC”)1 to perform

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her past work; if so, she is not disabled and the claim must be

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denied.

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proving she is unable to perform past relevant work.

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F.2d at 1257.

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case of disability is established.

§ 404.1520(a)(4)(iv).

The claimant has the burden of
Drouin, 966

If the claimant meets that burden, a prima facie
Id.

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RFC is what a claimant can do despite existing exertional
and nonexertional limitations. § 404.1545; see Cooper v.
Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989).
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If that happens or if the claimant has no past relevant

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work, the Commissioner then bears the burden of establishing that

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the claimant is not disabled because she can perform other

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substantial gainful work available in the national economy.

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§ 404.1520(a)(4)(v); Drouin, 966 F.2d at 1257.

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determination comprises the fifth and final step in the

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sequential analysis.

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n.5; Drouin, 966 F.2d at 1257.

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B.

That

§ 404.1520(a)(4)(v); Lester, 81 F.3d at 828

The ALJ’s Application of the Five-Step Process

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

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substantial gainful activity since April 27, 2009, her alleged

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onset date.

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had the severe impairments of cervical and lumbar disc disease,

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migraine headaches, fibromyalgia, chronic pain syndrome,

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depression, anxiety, and “bereavement/post-traumatic stress

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disorder.”

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gastroesophageal reflux disease, irritable bowel syndrome, and

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hemorrhoids were not severe (id.), findings Plaintiff does not

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challenge.

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impairments did not meet or equal a listing.

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step four, he found that Plaintiff had the RFC to perform

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sedentary work2 except

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(AR 116.)

(Id.)

At step two, he concluded that Plaintiff

He found that Plaintiff’s gastritis,

At step three, the ALJ determined that Plaintiff’s
(AR 116-19.)

At

occasionally lift and carry 10 [pounds], frequently lift

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“Sedentary work involves lifting no more than 10 pounds at
a time and occasionally lifting or carrying articles like docket
files, ledgers, and small tools.” § 404.1567. “Although a
sedentary job is defined as one which involves sitting, a certain
amount of walking and standing is often necessary in carrying out
job duties.” Id.
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and carry less [than] 10; stand and walk (with normal

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breaks) for a total of 2 of 8-hour day; sit (with normal

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breaks) for a total of 6 of 8-hour day; no use of upper

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extremity above shoulder level bilaterally; no use of the

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lower extremities for foot pedals bilaterally; postural

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limitations all occasional, no climbing ladders, ropes,

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scaffolds,

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machinery; avoid extremes of temperatures heat and cold;

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and simple tasks, object oriented, so no working with

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crawling,

heights,

or

dangerous

moving

general public.

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(AR 119.)

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Plaintiff could not perform her past relevant work.

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At step five, the ALJ found that Plaintiff could perform jobs

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existing in significant numbers in the national economy.

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127-28.)

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V.

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Based on the VE’s testimony, the ALJ concluded that

Accordingly, he found her not disabled.

(AR 127.)

(AR

(AR 129.)

DISCUSSION
Plaintiff contends that the ALJ erred in assessing (1) two

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treating physicians’ opinions, (2) a treating psychologist’s

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opinion, (3) her subjective complaints, and (4) the VE’s

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testimony, specifically, whether it conflicted with the

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Dictionary of Occupational Titles.

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addresses these issues in an order different from that followed

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by the parties.

(J. Stip. at 6.)

The Court

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A.

The ALJ Properly Assessed Plaintiff’s Credibility

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In issue three, Plaintiff contends that the ALJ failed to

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provide clear and convincing reasons for discounting her

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credibility.

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below, the ALJ did not err.

(J. Stip. at 39-44.)

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For the reasons discussed

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2

1.

Applicable law

An ALJ’s assessment of symptom severity and claimant

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credibility is entitled to “great weight.”

See Weetman v.

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Sullivan, 877 F.2d 20, 22 (9th Cir. 1989) (as amended); Nyman v.

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Heckler, 779 F.2d 528, 531 (9th Cir. 1985) (as amended Feb. 24,

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1986).

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of disabling pain, or else disability benefits would be available

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for the asking, a result plainly contrary to 42 U.S.C.

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§ 423(d)(5)(A).’”

“[T]he ALJ is not ‘required to believe every allegation

Molina v. Astrue, 674 F.3d 1104, 1112 (9th

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Cir. 2012) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.

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1989)).

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In evaluating a claimant’s subjective symptom testimony, the

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ALJ engages in a two-step analysis.

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at 1035-36.

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has presented objective medical evidence of an underlying

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impairment ‘[that] could reasonably be expected to produce the

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pain or other symptoms alleged.’”

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v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)).

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such objective medical evidence exists, the ALJ may not reject a

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claimant’s testimony “simply because there is no showing that the

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impairment can reasonably produce the degree of symptom alleged.”

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Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) (emphasis in

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original).

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See Lingenfelter, 504 F.3d

“First, the ALJ must determine whether the claimant

Id. at 1036 (quoting Bunnell
If

If the claimant meets the first test, the ALJ may discredit

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the claimant’s subjective symptom testimony only if he makes

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specific findings that support the conclusion.

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Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010).

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affirmative evidence of malingering, the ALJ must provide “clear
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See Berry v.
Absent a finding or

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and convincing” reasons for rejecting the claimant’s testimony.3

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Brown-Hunter v. Colvin, 806 F.3d 487, 492-93 (9th Cir. 2015) (as

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amended); Ghanim v. Colvin, 763 F.3d 1154, 1163 & n.9 (9th Cir.

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2014).

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techniques of credibility evaluation, such as the claimant’s

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reputation for lying, prior inconsistent statements, and other

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testimony by the claimant that appears less than candid; (2)

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unexplained or inadequately explained failure to seek treatment

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or to follow a prescribed course of treatment; (3) the claimant’s

The ALJ may consider, among other factors, (1) ordinary

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daily activities; (4) the claimant’s work record; and (5)

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testimony from physicians and third parties.

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Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (as

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amended); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir.

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2002).

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substantial evidence in the record, the reviewing court “may not

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engage in second-guessing.”

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If the ALJ’s credibility finding is supported by

2.

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Rounds v. Comm’r

Thomas, 278 F.3d at 959.

Relevant background

In a July 2010 function report, Plaintiff wrote that she had

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pain in her neck, back, and legs; fatigue; headaches; and

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shortness of breath.

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staying asleep and had back spasms if she lay down too long.

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453.)

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for 10 minutes.

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distances, climbing “a lot of stairs,” squatting, bending,

(AR 452.)

She had trouble falling and
(AR

She could walk for 10 or 15 minutes before having to rest
(AR 457.)

Plaintiff had difficulty walking long

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The Commissioner objects to the clear-and-convincing
standard but acknowledges that her argument was rejected — again
— in Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014).
(J. Stip. at 45-46 n.11); see also Brown-Hunter v. Colvin, 806
F.3d 487, 493 (9th Cir. 2015) (as amended) (reaffirming Burrell).
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standing for long periods, reaching, and kneeling.

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She had “difficulty sitting for long periods due to pain in [her]

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back” and would “lie down most of the time.”

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(AR 456-57.)

(AR 456.)

Plaintiff wrote that she lived with her four- and eight-

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year-old sons and seven-year-old grandson.

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for her children and grandchild, prepared their meals, did their

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laundry, and supervised them.

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every day; did laundry once a week, when she was having a “good

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day”; did the dishes for 15 minutes each day; and vacuumed in

(Id.)

(AR 452.)

She cared

She prepared simple meals

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“short intervals” when she was “feeling good.”

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drove only short distances because of pain and fatigue.

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454.)

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(AR 454-55.)

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and attended church once or twice a month.

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activities included showering, helping the kids pick out their

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clothes, lying down to watch a movie or watch the children play,

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taking a hot bath, taking medication, watching television,

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reading, and listening to the radio.

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(AR 453-54.)

She

(AR

She shopped in stores once a week for 30 to 45 minutes.
She talked on the phone daily to friends and family
(AR 455.)

Her daily

(AR 452, 455.)

In an undated “Disability Report – Appeal,” Plaintiff wrote

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that she had neck, leg, and back pain; numbness in her legs,

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arms, and hands; fatigue; shortness of breath; and back spasms.

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(AR 464.)

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She had difficulty lifting heavy objects, walking long distances,

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standing for very long, bending, reaching, and sitting for long

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periods.

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“due to numbness in my legs.”

She had headaches two or three times a week.

(AR 464-65.)

(Id.)

She had trouble kneeling for long periods
(AR 465.)

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At the January 2012 hearing, Plaintiff testified that she

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couldn’t work because of headaches; neck pain; numbness of her
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hands, arms, and legs; and back pain and spasms.

(AR 39-40, 42-

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43.)

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(AR 40.)

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her five- and ten-year-old sons and eight-year-old grandson ready

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for school, made them breakfast, and walked them to school, which

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was about a quarter of a mile and a 10-minute walk away.

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43, 45.)

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for a little while, take a shower, and then pick up her younger

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son from kindergarten.

She had to lie down six hours out of an eight-hour day.
Plaintiff testified that every morning she got up, got

(AR 41,

When she returned from the school, she would lie down

(AR 41.)

Her 28-year-old daughter would

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pick up the older boys from school.

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able to drive short distances.

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shopping with her daughter once a week; she was sometimes able to

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walk through the store but sometimes used the store’s electric

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carts.

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get out of bed two days a week.

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(AR 44-45.)

(AR 43-44.)

(AR 42.)

Plaintiff was

She went grocery

Plaintiff testified that she was unable to
(AR 48.)

At the February 2014 hearing, Plaintiff testified that she

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had a dull pain in her back and arms; numbness and tingling in

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her lower arms, legs, and feet “multiple times during the day”; a

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burning feeling in her neck; achiness; trouble sleeping; and

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migraines that lasted 24 hours once or twice a week.

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68-69.)

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she was “constantly exhausted.”

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more than eight hours a day lying down (AR 63) and she had three

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or four “bad days” a week, during which she “c[ould]n’t even

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walk” (AR 70).

She had trouble with short-term memory and

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concentrating.

(AR 72-73.)

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(AR 61-63,

She had back spasms if she sat or stood too long, and
(AR 64-65.)

Plaintiff spent

Plaintiff testified that she could lift a gallon of milk but
nothing heavier.

(AR 64.)

She could sit for 30 to 45 minutes
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before she would feel her back pain “getting worse,” and the

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maximum amount of time she could sit was an hour, after which she

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would have to walk for 10 to 15 minutes.

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stand for 30 to 45 minutes.

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(AR 66-67.)

She could

(AR 67.)

Plaintiff testified that each morning she walked her boys to

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school, which was about a half mile and a 20- to 25-minute walk

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away.

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minutes before walking home.

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from school (AR 72), went grocery shopping and to the doctor, and

(AR 64.)

Once at the school, she would sit for 20 to 30
(AR 67-68.)

She picked the boys up

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once a month went to a family member’s house (AR 65).

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laundry with help from her husband and daughter and sometimes

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washed dishes.

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3.

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She did

(AR 71.)
Analysis

The ALJ credited some of Plaintiff’s subjective complaints,

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finding that it “is uncontradicted that [she] is not capable of

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performing a full workweek on a regular and continuous basis

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without limitation.”

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statements that she “has difficulty with sustained weight-bearing

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activities (standing and walking),” the ALJ limited her to

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sedentary work “because this is the only exertional level that

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allows for more sitting than standing and walking.”

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ALJ also limited Plaintiff to lifting “objects weighing no more

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than 10 pounds, which was also within her stated capacity.”

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(Id.)

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complaints (id. (stating that Plaintiff’s statements concerning

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her symptoms were “not entirely credible”), he provided clear and

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convincing reasons for doing so.

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(AR 120.)

Thus, based on Plaintiff’s

(Id.)

The

To the extent the ALJ discounted Plaintiff’s subjective

The ALJ permissibly discounted Plaintiff’s subjective
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1

complaints because her daily activities were inconsistent with

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her allegedly totally disabling impairments.

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that she had to lie down most of the day, could not get out of

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bed two days a week, and had three or four bad days a week,

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during which she couldn’t walk.

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noted (AR 126), Plaintiff had a regular morning routine that

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included waking her young children and grandson, getting them

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ready for school, making them breakfast, walking them to school,

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and picking them up (AR 41-43, 45, 64, 72).

Plaintiff claimed

(AR 40, 63, 70.)

But as the ALJ

She also supervised

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the children, including her autistic grandson (AR 1019 (Dr.

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Timothy L. Sams noting that Plaintiff’s “[d]aughter’s son is

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autistic and pt cares for him”)), prepared their meals, and did

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their laundry with help.

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stores once a week, went to doctor’s appointments, did some light

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chores, attended church once or twice a month, and visited

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friends or family about once a month.

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55.)

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her classes ended, she told her psychologist that she wanted to

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return to school in the fall.

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noting that Plaintiff “has gone back to school and is currently

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taking a typing course”), 1016 (June 20, 2013, Dr. Sams noting

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that Plaintiff “wants to go to school in mornings beginning in

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the fall”), 1026 (June 21, 2013, Dr. Le noting that Plaintiff’s

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“classes have ended”).)

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Plaintiff’s credibility because her daily activities were

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inconsistent with her allegedly debilitating symptoms.

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Molina, 674 F.3d at 1112 (ALJ may discredit claimant’s testimony

28

when “claimant engages in daily activities inconsistent with the

(AR 452, 455.)

Plaintiff shopped in

(AR 44-45, 65, 71, 454-

She also attended school in the spring of 2013, and after

(AR 1035 (February 8, 2013, Dr. Le

As such, the ALJ properly discounted

12

See

1

alleged symptoms” (citing Lingenfelter, 504 F.3d at 1040)); see

2

also Mitchell v. Colvin, 584 F. App’x 309, 311 (9th Cir. 2014)

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(upholding finding that claimant’s allegations of disabling

4

impairments were inconsistent with daily activities that included

5

caring for children, driving, shopping, and riding bicycle); Bray

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v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir.

7

2009) (ALJ properly discounted claimant’s testimony because “she

8

leads an active lifestyle, including cleaning, cooking, walking

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her dogs, and driving to appointments”).

10

The ALJ also found that Plaintiff’s ability to be the

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caretaker for her children and grandchild “shows she is able to

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perform duties akin to at least sedentary work.”

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also AR 123 (noting that Plaintiff’s “statements that she does

14

activities daily, like walk her children to school, shows she is

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able to get out daily and perform routine activities on a set

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schedule”).)

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children each morning, got them ready for school, made them

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meals, did their laundry, and supervised them.

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to their school and back twice a day, and she reported to her

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treating psychologist, Dr. Sams, in January 2014 that she “spends

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4/16 waking hours on her feet” (AR 1059) – which is consistent

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with her RFC for standing and walking for a total of two hours in

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an eight-hour day (AR 119).

(AR 127; see

Indeed, as previously discussed, Plaintiff woke the

She also walked

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The ALJ was entitled to discount Plaintiff’s credibility

25

because her daily activities indicate that she had capacities

26

that are transferrable to a work setting.

27

at 1113 (ALJ may discredit claimant’s testimony when claimant

28

“reports participation in everyday activities indicating
13

See Molina, 674 F.3d

1

capacities that are transferable to a work setting”); Morgan v.

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Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999)

3

(finding that ALJ permissibly discounted plaintiff’s credibility

4

because his “ability to fix meals, do laundry, work in the yard,

5

and occasionally care for his friend’s child served as evidence

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of [his] ability to work”).)
The ALJ also permissibly discounted Plaintiff’s subjective

7
8

complaints because the objective medical evidence did not support

9

them.

The ALJ noted that Plaintiff claimed to “suffer[] from

10

significant degeneration in her spine with pinched nerves that

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caused radiculopathy in her upper and lower extremities” (AR 126;

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see AR 38 (alleging numbness in arms, hands, legs, and feet that

13

“makes it hard for me to walk”), 43 (alleging she couldn’t “sit

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through an eight hour day” because of “numbness”), 68 (alleging

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numbness in hands, lower arms, legs, and feet), 441 (alleging

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that “bulging discs in back and neck,” “degenerative disc

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disease,” and “pinched nerve” limited ability to work)), but her

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medical records showed “minimal” evidence of loss of motor

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strength, loss of sensation, or unequal reflexes (AR 126).

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Indeed, Plaintiff’s doctors consistently noted that she had

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intact cranial nerves, no muscle weakness, intact sensation, and

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normal reflexes and gait.

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879, 996-97, 1021, 1024, 1027, 1030, 1033, 1036, 1039, 1042,

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1045, 1048, 1051, 1054, 1075-76, 1091; but see AR 714 (Dr. Lew

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Disney noting that Plaintiff’s motor strength was 5/5 but

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sensation decreased on left compared to right), 801 (Dr. Melissa

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D. Moseberry noting antalgic gait but normal reflexes, motor

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strength, sensation, and heel and toe walking), 1069-70 (Dr.

(See, e.g., 586, 720, 756, 789, 795,

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1

Sudhir K. Reddy noting intact cranial nerves and normal reflexes

2

but “[s]eems to have some reduced [sensation to] pin prick L5-

3

S1”).)

4

her upper and lower extremities were normal.

5

900, 1042.)

6

objective medical evidence in assessing Plaintiff’s complaints of

7

pain and her credibility.

8

681 (9th Cir. 2005) (“Although lack of medical evidence cannot

9

form the sole basis for discounting pain testimony, it is a

Moreover, electromyograms and nerve-conduction studies of
(AR 714, 718, 764,

The ALJ was entitled to consider the lack of

See Burch v. Barnhart, 400 F.3d 676,

10

factor that the ALJ can consider in his credibility analysis.”);

11

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

12

Cir. 2008) (“Contradiction with the medical record is a

13

sufficient basis for rejecting the claimant’s subjective

14

testimony.”); Lingenfelter, 504 F.3d at 1040 (in determining

15

credibility, ALJ may consider “whether the alleged symptoms are

16

consistent with the medical evidence”).

17

Plaintiff argues that she consistently reported her symptoms

18

of back pain, abnormal sensation, joint pain, muscle weakness,

19

and fatigue to her doctors and that her symptoms “are not less

20

credible in the event they are ultimately found to be more

21

attributable to her fibromyalgia than to her degenerative disc

22

disease.”

23

asserts that her symptoms are attributable to fibromyalgia rather

24

than her back condition, that does not change the fact that upon

25

examination her doctors consistently found that she had normal

26

muscle strength, reflexes, and sensation, contrary to her own

27

reports.

28

(J. Stip. at 40-41.)

But even if Plaintiff now

As such, the ALJ did not err.

The ALJ was also permitted to rely on Plaintiff’s treatment
15

1

history in discounting her subjective complaints.

The ALJ found

2

that Plaintiff’s “mental health treatment is spotty in spite of

3

her statements that she has daily or weekly problems with

4

symptoms of depression, grief, and PTSD.”

5

noted that Plaintiff received only brief mental-health treatment

6

following the death of one of her sons in 2007, and other than

7

her counseling with Dr. Sams, which began in January 2012, “there

8

is little in the way of continuous psychiatric treatment,

9

including medications and counseling.”

(AR 126.)

(Id.)

The ALJ

Indeed, although

10

Plaintiff claims to have been disabled since April 2009 in part

11

because of her mental-health problems, she sought treatment only

12

briefly in 2007 and the fall of 2009 (see AR 555-58 (psychologist

13

Garmen’s treatment notes from grief counseling sessions in August

14

and October 2009), 800-01 (Dr. Moseberry’s Sept. 2009 note

15

stating she had prescribed Effexor for depression)), and then not

16

again until more than two years later, in January 2012.

17

952.)

18

convincing reason for discounting her subjective complaints.

19

Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (ALJ

20

may discount claimant’s testimony in light of “unexplained or

21

inadequately explained failure to seek treatment or to follow a

22

prescribed course of treatment”); SSR 96-7p, 1996 WL 374186, at

23

*7 (claimant’s statements “may be less credible if the level or

24

frequency of treatment is inconsistent with the level of

25

complaints”).

(AR

Plaintiff’s two-year gap in treatment was a clear and
See

26

Plaintiff argues that her lack of mental-health treatment

27

was not a valid reason for discounting her credibility because

28

“‘it is a questionable practice to chastise one with a mental
16

1

impairment for the exercise of poor judgement in seeking

2

rehabilitation.’”

3

of Soc. Sec. Admin., 166 F.3d 1294, 1299 (9th Cir. 1999)).)

4

nothing indicates that Plaintiff’s failure to seek treatment was

5

a result of her mental impairments.

6

1113-14 (ALJ permissibly discounted credibility based on failure

7

to seek psychiatric care for anxiety disorder when “no medical

8

evidence” showed that claimant’s resistence to treatment “was

9

attributable to her mental impairment rather than her own

(J. Stip. at 43 (quoting Regennitter v. Comm’r
But

See Molina, 674 F.3d at

10

personal preference”).

11

health treatment and consistently attended appointments with her

12

many other medical providers, indicating that she was capable of

13

seeking treatment when she so desired.

14

err in relying on this factor.

15

Indeed, she had previously sought mental-

As such, the ALJ did not

The ALJ also observed that Plaintiff’s work history “both

16

bolsters and affects her credibility.”

17

Plaintiff continued to work for two years after the death of her

18

son, the event that triggered her depression and PTSD, but that

19

“the lack of continued earnings generally supports her

20

allegations.”

21

relied on this factor to discount Plaintiff’s credibility.

22

even if the ALJ relied on this factor and erred in doing so, it

23

was harmless because he gave other, clear and convincing reasons

24

for discounting Plaintiff’s subjective-symptom testimony.

25

Carmickle, 533 F.3d at 1162-63 (finding error harmless when ALJ

26

cited other reasons to support credibility determination).

27

(Id.)

(AR 126.)

He noted that

As such, it does not appear that the ALJ

Reversal is not warranted on this ground.

28
17

But

See

1

B.

The ALJ Properly Assessed the Medical Opinions

2

In issues one and two, Plaintiff contends that the ALJ erred

3

in assessing the opinions of three treating medical sources:

4

pain-management physician Philip Chiou, rheumatologist Thang T.

5

Le, and psychologist Sams.

6

reasons discussed below, remand is not warranted.
1.

7

(J. Stip. at 7-18, 30-35.)

For the

Applicable law

8

Three types of physicians may offer opinions in Social

9

Security cases: (1) those who directly treated the plaintiff, (2)

10

those who examined but did not treat the plaintiff, and (3) those

11

who did neither.

12

opinion is generally entitled to more weight than an examining

13

physician’s, and an examining physician’s opinion is generally

14

entitled to more weight than a nonexamining physician’s.

15

Lester, 81 F.3d at 830.

A treating physician’s

Id.

This is true because treating physicians are employed to

16

cure and have a greater opportunity to know and observe the

17

claimant.

18

opinion is well supported by medically acceptable clinical and

19

laboratory diagnostic techniques and is not inconsistent with the

20

other substantial evidence in the record, it should be given

21

controlling weight.

22

opinion is not given controlling weight, its weight is determined

23

by length of the treatment relationship, frequency of

24

examination, nature and extent of the treatment relationship,

25

amount of evidence supporting the opinion, consistency with the

26

record as a whole, the doctor’s area of specialization, and other

27

factors.

28

Smolen, 80 F.3d at 1285.

If a treating physician’s

§ 404.1527(c)(2).

If a treating physician’s

§ 404.1527(c)(2)-(6).

When a treating or examining physician’s opinion is not
18

1

contradicted by other evidence in the record, it may be rejected

2

only for “clear and convincing” reasons.

3

at 1164 (citing Lester, 81 F.3d at 830-31).

4

contradicted, the ALJ must provide only “specific and legitimate

5

reasons” for discounting it.

6

31).

7

physician, including a treating physician, if that opinion is

8

brief, conclusory, and inadequately supported by clinical

9

findings.”

10

When it is

Id. (citing Lester, 81 F.3d at 830-

Furthermore, “[t]he ALJ need not accept the opinion of any

Thomas, 278 F.3d at 957; accord Batson v. Comm’r of

Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004).
2.

11
12
13

See Carmickle, 533 F.3d

Physical Impairments
a.

Relevant background

Dr. Chiou, who specialized in pain management, first saw

14

Plaintiff on September 13, 2011 (AR 754-58), and for follow-up

15

appointments on October 6 and December 21 (AR 932-33, 938-39).

16

On December 1, 2011, he conducted an EMG and NCS, which were

17

normal (AR 934), and on December 29, he administered four

18

trigger-point injections (AR 940).

19

21, 2011, Dr. Chiou stated that after seeing Plaintiff five times

20

and performing diagnostic studies, he believed she had

21

fibromyalgia.

22

studies” of people with low-back pain show that “of those who

23

have been out of work for 2 years, extremely few will ever return

24

to work.”

25

and applied to the fibromyalgia population” and that Plaintiff

26

would thus “likely be permanently disabled from a work

27

perspective.”

28

(AR 930.)

(Id.)

In a letter dated December

Dr. Chiou stated that “[c]linical

He opined that such data “can be extrapolated

(Id.)

On January 3, 2011, Dr. Chiou completed a Fibromyalgia
19

1

Impairment Questionnaire.

(AR 942-47.)

2

met the American Rheumatological criteria for fibromyalgia, and

3

her other diagnoses included lumbalgia, lumbar facet arthropathy,

4

lumbar radiculitis, degenerative disc disease, cervicalgia, and

5

cervical disc herniation.

6

findings as tenderness to palpation in 11 of 18 tender points.4

7

(Id.)

8

his diagnosis, Dr. Chiou wrote that “[f]ibromyalgia is a

9

diagnosis of exclusion” and listed several normal test findings.

(Id.)

He wrote that Plaintiff

He listed her positive clinical

Under the section for identifying test results supporting

10

(AR 943.)

11

and hands, diffuse body pain, low-back pain, and neck pain, and

12

he stated that her pain was an 8 on a scale of 10.

13

Dr. Chiou listed several medications Plaintiff had taken and

14

their side effects.

15

He listed her primary symptoms as numbness in the legs

(AR 943-44.)

(AR 944.)

Dr. Chiou opined that Plaintiff could sit “0-1” hour in an

16

eight-hour day, stand for up to a half hour at a time for a total

17

of “0-1” hour in an eight-hour day, lift five pounds frequently

18

and 10 pounds occasionally, and carry up to 10 pounds

19

occasionally.

(AR 945.)

She needed to get up and move around

20
4

21
22
23
24
25
26
27
28

Trigger points, or tender points, “are pain points or
localized areas of tenderness around joints, but not the joints
themselves,” that “hurt when pressed with a finger.”
Fibromyalgia Tender Points, WebMD, http://www.webmd.com/
fibromyalgia/guide/fibromyalgia-tender-points-trigger-points
(last updated May 24, 2014). In the past, a fibromyalgia
diagnosis was based on whether a person had pain when tender
points were pressed firmly, but “[n]ewer guidelines don’t require
a tender point exam”; “[i]nstead, a fibromyalgia diagnosis can be
made if a person has had widespread pain for more than three
months — with no underlying medical condition that could cause
the pain.” Fibromyalgia, Mayo Clinic, http://www.mayoclinic.org/
diseases-conditions/fibromyalgia/basics/tests-diagnosis/
con-20019243 (last updated Oct. 1, 2015).
20

1

every hour and could not sit again for another three to four

2

hours, and she would take more than 10 unscheduled breaks each

3

day.

4

jobs, and emotional factors contributed to the severity of her

5

symptoms and functional limitations.

6

from work more than three times a month because of her

7

impairments or treatment.

8

bend, or stoop.

9

(AR 945-46.)

Plaintiff was incapable of even low-stress

(AR 946.)

(Id.)

She would be absent

She could not push, pull,

(AR 946-47.)

Dr. Chiou opined that “[g]iven [that] the patient has been

10

unable to work for an extended period of time,” she likely had a

11

“chronic disability.”

12

“earliest date that the description of symptoms and limitations”

13

applied, Dr. Chiou wrote “per patient report July 2009.”

14

947.)

15

(AR 942.)

In the space for listing the

(AR

Dr. Le, a rheumatologist, first saw Plaintiff on October 6,

16

2011.

(AR 718-21.)

He diagnosed fibromyalgia, “[s]everely

17

symptomatic”; cervical and lumbar spondylosis; and fatigue.

18

721.)

19

appointment.

20

letter stating that Plaintiff

(AR

On October 25, 2011, he saw her for a follow-up
(AR 788-90.)

came

under

On October 27, 2011, he wrote a

21

recently

my

medial

care

for

severe

22

fibromyalgia.

23

severe muscle pain, stiffness, and fatigue.

24

these symptoms, the patient has been unable to work.

This is a chronic condition that causes
Because of

25

(AR 792.)

26

November 17, 2011 (AR 878-80), and February 17, April 10, June

27

13, August 24, 2012.

28

Dr. Le saw Plaintiff for follow-up appointments on

(AR 1044-54.)

On August 29, 2012, Dr. Le completed a Fibromyalgia
21

1

Impairment Questionnaire, stating that he had treated Plaintiff

2

every month or two since October 6, 2011.

3

stated that Plaintiff met the American Rheumatological criteria

4

for fibromyalgia and listed her other diagnoses as cervical and

5

lumbar spondylosis and fatigue.

6

Plaintiff’s prognosis was poor and stated that she “remain[ed]

7

markedly symptomatic despite being on medical therapy.”

8

Plaintiff’s “positive clinical findings” included multiple tender

9

points and limited range of motion of the cervical and lumbar

(AR 957-62.)

(AR 957.)

He

Dr. Le believed that

(Id.)

10

spine, and her symptoms included muscle and joint pain, muscle

11

weakness, “numbness and tingling of the extremities,” and

12

fatigue.

13

959.)

14

effects.

15

(AR 957-58.)

Her pain was a 9 on a scale of 10.

(AR

Dr. Le also listed Plaintiff’s medications and side
(Id.)

Dr. Le opined that Plaintiff could sit for four hours in an

16

eight-hour day, stand and walk for “0-1” hour in an eight-hour

17

day, and occasionally lift and carry 10 pounds.

18

needed to get up and move around every 15 minutes for five

19

minutes and take three unscheduled 10-minute breaks each eight-

20

hour workday.

21

jobs, and her pain and fatigue affected her concentration.

22

Plaintiff would be absent from work because of her impairments or

23

treatment more than three times a month.

24

to avoid temperature extremes, humidity, kneeling, and stooping.

25

(AR 961-62.)

26

limitations had existed since October 6, 2011 (AR 962), which was

27

the date he first treated her.

28

for follow-up appointments on September 2 and December 10, 2012

(AR 906-61.)

(AR 960.)

She

She was incapable of even low-stress

(AR 961.)

(Id.)

She needed

Dr. Le believed that Plaintiff’s symptoms and

Dr. Le thereafter saw Plaintiff

22

1

(AR 1038-43), and February 8, March 7, May 10, June 21, September

2

27, and November 26, 2013 (AR 1020-37).

3

Medical expert Arnold Ostrow, who was board certified in

4

internal medicine (AR 333), reviewed Plaintiff’s medical records

5

and testified at the February 4, 2014 hearing (AR 58-61).

6

listed Plaintiff’s medically determinable impairments as cervical

7

discogenic disease, lumbosacral discogenic disease, migraine

8

headaches, fibromyalgia, and chronic pain syndrome.

9

believe Plaintiff was limited to lifting 20 pounds occasionally

10

and 10 pounds repetitively, standing and walking six hours, and

11

sitting six hours.

12

extremities above shoulder height and could not use her lower

13

extremities to push foot pedals.

14

bend, stoop, and climb stairs.

15

ladders, or scaffolding or work at unprotected heights.

16

(AR 60.)

He

(AR 59.)

He

She could not raise her upper

(Id.)

(Id.)

She could occasionally

She could not climb ropes,
(Id.)

On April 8, 2014, the ALJ issued his decision, finding that

17

Plaintiff could perform a limited range of sedentary work.

18

113-29.)

19

limitations, Plaintiff could lift and carry 10 pounds

20

occasionally and less than that frequently, stand and walk for

21

two hours in an eight-hour day, sit for six hours in an eight-

22

hour day, and occasionally perform all posturals; she could not

23

use her upper extremities above shoulder level or her lower

24

extremities to operate foot pedals.

25

never climb, crawl, or work at heights or around dangerous moving

26

machinery or extreme heat or cold.

27

accorded “great weight” to Dr. Ostrow’s opinion (AR 121) and “no

28

weight” to Drs. Chiou’s and Le’s opinions (AR 123-24).

(AR

Specifically, he found that because of her physical

23

(AR 119.)

(Id.)

Plaintiff could

In so finding, the ALJ

1
2

b.

Analysis

As an initial matter, to the extent Plaintiff contends that

3

the ALJ needed to provide “clear and convincing” reasons for

4

rejecting Drs. Chiou’s and Lin’s opinions (see J. Stip at 13),

5

she is incorrect.

6

Ostrow’s testimony and by each other (compare AR 945 (Dr. Chiou

7

stating that Plaintiff could sit “0-1” hour in eight-hour day),

8

with AR 960 (Dr. Le stating that Plaintiff could sit four hours

9

in eight-hour day)).

Both of those opinions are controverted by Dr.

As such, the ALJ needed to set forth only

10

specific and legitimate reasons for rejecting Drs. Chiou’s and

11

Le’s opinions, see Carmickle, 533 F.3d at 1164, which he did.

12

The ALJ gave specific and legitimate reasons for discounting

13

Dr. Chiou’s opinions in the December 2011 letter and January 2012

14

fibromyalgia questionnaire.

15

December 2011 opinion that Plaintiff was permanently disabled was

16

not binding on the ALJ or entitled to any special weight.

17

§ 404.1527(d)(1) (“A statement by a medical source that you are

18

‘disabled’ or ‘unable to work’ does not mean that we will

19

determine that you are disabled.”); SSR 96-5p, 1996 WL 374183, at

20

*5 (treating-source opinions that person is disabled or unable to

21

work “can never be entitled to controlling weight or given

22

special significance”).

23

was simply an “extrapolation made from the data about back pain

24

patients” and not based on the doctor’s own observations of

25

Plaintiff’s symptoms.

26

Plaintiff was likely “permanently disabled” because studies of

27

back-pain patients could be “extrapolated and applied to the

28

fibromyalgia population”).)

As an initial matter, Dr. Chiou’s

See

Moreover, as the ALJ noted, that opinion

(AR 124; see AR 930 (stating that

24

1

The ALJ also noted that at the time Dr. Chiou rendered his

2

opinions, he had been seeing Plaintiff for only four months.

3

124.)

4

Chiou’s opinions were “not based on objective observations of her

5

symptoms and their reaction to his recommended treatment

6

modalities over an extended period.”

7

to consider Dr. Chiou’s short relationship with Plaintiff when

8

weighing his opinion.

9

(AR

As the ALJ found, given that short treatment history, Dr.

(Id.)

The ALJ was entitled

See § 404.1527(c)(2)(i).

The ALJ also found that Dr. Chiou’s opinions were based

10

“primarily [on Plaintiff’s] subjective complaints.”

(AR 124.)

11

Indeed, as the ALJ noted (id.), Dr. Chiou started treating

12

Plaintiff in September 2011 but opined that her limitations had

13

existed since July 2009 — more than two years earlier — based

14

solely on Plaintiff’s own report.5

15

Plaintiff limitations began “per patient report July 2009”).)

16

And Dr. Chiou’s notes contain very few objective findings to

17

support his opinions.

18

treatment note, Dr. Chiou noted tenderness along the spine and

19

decreased range of motion in the lumbar spine, but full range of

20

motion in the cervical spine, a negative straight-leg test, “5/5

(See AR 947 (stating

For example, in his September 2011

21
22
23
24
25
26
27
28

5

Plaintiff cites several cases stating that a physician’s
opinion cannot be disregarded solely because it was rendered
retrospectively. (See J. Stip. at 14 (citing Morgan, 169 F.3d at
601; Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988);
Lesmeister v. Barnhart, 439 F. Supp. 2d 1023, 1030-31 (C.D. Cal.
2006)).) But here, Dr. Chiou’s opinion that Plaintiff’s
limitations began in 2009 was based solely on Plaintiff’s
subjective complaints, not on his own observations, and in any
event, the ALJ did not discount the opinions “solely” on that
basis — rather, he gave several specific and legitimate reasons
for doing so.
25

1

strength bilaterally in the upper and lower extremities,” intact

2

nerves, intact sensation, and nonantalgic gait.

3

also AR 933 (Oct. 2011, noting decreased range of motion but 5/5

4

strength, intact sensation, and “not Antalgic” gait), 939 (Dec.

5

2011 (noting nerves grossly intact and “not Antalgic” gait).)

6

Dr. Chiou noted that a lumbar-spine MRI showed multilevel disc

7

bulges, stenosis, and facet hypertrophy but that a cervical-spine

8

MRI showed only mild disc protrusion at C5-C6 and her EMGs had

9

all been normal.

(AR 757.)

(AR 756-57; see

Given those generally mild

10

examination findings and test results, Dr. Chiou’s opinions that

11

Plaintiff was totally disabled and suffered from extreme physical

12

limitations appear to have been based primarily on her

13

discredited subjective complaints.

14

1041 (ALJ may reject treating physician’s opinion if it is based

15

“on a claimant’s self-reports that have been properly discounted

16

as incredible”); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th

17

Cir. 2001) (because record supported ALJ’s discounting of

18

claimant’s credibility, ALJ “was free to disregard [examining

19

physician’s] opinion, which was premised on [claimant’s]

20

subjective complaints”); cf. Thomas, 278 F.3d at 957 (“[t]he ALJ

21

need not accept the opinion of any physician, including a

22

treating physician, if that opinion is . . . inadequately

23

supported by clinical findings”).

See Tommasetti, 533 F.3d at

24

The ALJ also found that “little to no objective data”

25

supported Dr. Chiou’s opinion that Plaintiff needed to miss more

26

than three days of work per month.

27

Plaintiff’s ability to “do[] activities daily, like walk[ing] her

28

children to school, shows she is able to get out daily and
26

(AR 124.)

The ALJ noted that

1

perform routines on a schedule.”

2

in Section A, Plaintiff woke her young children and grandchild

3

each morning, prepared their meals, got them ready for school,

4

walked them to school, and supervised them.

5

indicate that Plaintiff is capable of carrying out a regular work

6

routine.

7

for rejecting Dr. Chiou’s opinion.

8

601–02 (finding that inconsistency between treating physician’s

9

opinion and claimant’s daily activities was specific and

10

legitimate reason to discount opinion); § 404.1527(c)(4)

11

(“Generally, the more consistent an opinion is with the record as

12

a whole, the more weight we will give to that opinion.”).

13

(AR 123.)

Indeed, as discussed

Such activities

Thus, this was also a specific and legitimate reason
See Morgan, 169 F.3d at

The ALJ also provided specific and legitimate reasons for

14

rejecting Dr. Le’s opinion.

He noted that Dr. Le’s finding that

15

Plaintiff would be required to get up and move around every 15

16

minutes (AR 960) conflicted with Plaintiff’s own testimony that

17

she was able to sit for up to an hour at a time before she had to

18

get up and move around (AR 66-67).6

19

F.3d at 601–02; § 404.1527(c)(4).

(AR 124); see Morgan, 169
The ALJ also found that Dr.

20
6

21
22
23
24
25
26
27
28

Plaintiff argues that her testimony was “quite different”
from what the ALJ stated in his opinion, primarily because she
testified that she felt pain when sitting longer than 30 to 45
minutes. (J. Stip. at 16.) It is true that Plaintiff testified
that she had low-back pain and could “start to feel it getting
worse” after sitting for “about a half an hour to 45 minutes.”
(AR 66.) But when asked, “[W]hen does it get to the point where
you have to get up and move around,” Plaintiff answered, “The max
is about an hour.” (Id.) After that, she testified, she had to
“get up and walk and stretch” for 10 to 15 minutes, or if she was
at home, she would “usually go and lay down.” (AR 66-67.)
Nothing in her testimony contradicts the ALJ’s finding that
Plaintiff testified that she could sit for about an hour at a
time before needing to get up and move around. (AR 124.)
27

1

Le’s opinion that Plaintiff was unable to kneel or stoop

2

conflicted with the medical evidence showing that Plaintiff did

3

not have muscle weakness or numbness.

4

Le’s own examination notes consistently showed that Plaintiff had

5

tender points and limited ranges of motion of the cervical and

6

lumbar spine but intact sensation and no muscle weakness (see,

7

e.g. AR 720 (Oct. 2011), 789 (Oct. 2011), 879 (Nov. 2011), 1054

8

(Feb. 2012), 1039 (Dec. 2012)), and he consistently recommended

9

low-impact cardiovascular exercise (see AR 721, 789, 879, 1037,

(AR 124.)

Indeed, Dr.

10

1052; see also AR 1049 (advising Plaintiff to “[r]estart pool

11

therapy).)7

12

Plaintiff argues that the ALJ erred in discounting Dr. Le’s

13

opinion on this basis because factors other than weakness and

14

numbness could have limited her ability to stoop and bend.

15

Stip. at 17.)

16

“primary symptoms” that could have resulted in her functional

17

limitations: muscle and joint pain, “muscle weakness,” “numbness

18

and tingling of extremities,” and fatigue.

19

his own notes undermine half of those symptoms, the ALJ was not

20

unreasonable in finding that a total preclusion from stooping and

21

kneeling was unwarranted and discounting his opinion on that

(J.

But in his opinion, Dr. Le listed only four

(AR 958.)

Given that

22
23
24
25
26
27
28

7

Dr. Le’s opinion that Plaintiff could stand and walk only
“0-1” hours in an eight-hour day (AR 960) appears to conflict
with his consistent recommendations that Plaintiff exercise.
Moreover, in assessing the opinion of another of Plaintiff’s
treating physicians, Dr. Zahiri, the ALJ noted that Plaintiff’s
ability to walk her children to and from school, along with her
other daily activities, indicated that she is able to stand and
walk for two hours a day. (AR 123.) And as noted, Plaintiff
herself told Dr. Sams as late as 2014 that she was on her feet
four hours out of 16. (AR 1059.)
28

1

basis.

2

kneel only “for long periods due to numbness in my legs.”

3

465.)8

4

Indeed, Plaintiff herself stated that she was unable to
(AR

The ALJ also found that Dr. Le’s opinion that Plaintiff

5

would miss more than three days of work a month conflicted with

6

Plaintiff’s account of her daily activities, which as discussed

7

above, showed she was able to get her young children and

8

grandchild to school and back each day and supervise them when

9

they were home.

10
11

(AR 124.)

The ALJ therefore provided specific

and legitimate reasons for rejecting Dr. Le’s opinion.
Finally, the ALJ was entitled to rely on the opinion of Dr.

12

Ostrow, the medical expert who testified at the second hearing,

13

instead of Drs. Chiou’s and Le’s.

14

that Dr. Ostrow’s opinion was “supported by and consistent with

15

the full objective medical evidence of record.”

16

example, the ALJ noted that Plaintiff’s EMG was negative and her

17

motor strength and sensation were generally normal when tested,

18

and thus she “does not have limitations on her ability to perform

19

the manipulative work activities such as gross or fine

20

manipulation.”

21

recommended, “she should limit the use of her arms above shoulder

22

level as this type of activity can increase her neck and upper

(AR 120.)

(See AR 121.)

The ALJ found

(Id.)

For

He found that, as Dr. Ostrow had

23
24
25
26
27
28

8

Consistent with Plaintiff’s complaints (AR 464-65) and Dr.
Ostrow’s opinion (AR 60), the ALJ recognized that Plaintiff did
not have a full ability to stoop and kneel, because he limited
Plaintiff’s performance of “posturals” — which included stooping
and kneeling — to occasional. (AR 119); see
§ 404.1569a(c)(1)(vi) (noting that “manipulative or postural
functions” include activities such as “reaching, handling,
stooping, climbing, crawling, or crouching”).
29

1

back pain symptoms.”

(Id.)

The ALJ also found, consistent with

2

Dr. Ostrow’s opinion, that Plaintiff should avoid using foot

3

pedals because that could exacerbate her lumbar-spine

4

degeneration; that crawling and climbing would likely exacerbate

5

her fibromyalgia symptoms by increasing pressure on her knees and

6

low back; and that she should avoid working at heights because

7

her pain medication could affect her concentration.

8

The ALJ also noted that Dr. Ostrow reviewed the majority of the

9

medical evidence, testified at the hearing, and was familiar with

10

the agency’s policy and regulations.

11

was entitled to rely on Dr. Ostrow’s opinion.

12

F.3d at 957 (“The opinions of non-treating or non-examining

13

physicians may also serve as substantial evidence when the

14

opinions are consistent with independent clinical findings or

15

other evidence in the record.”); Morgan, 169 F.3d at 600

16

(“Opinions of a nonexamining, testifying medical advisor may

17

serve as substantial evidence when they are supported by other

18

evidence in the record and are consistent with it” (citing

19

Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995)));

20

Andrews, 53 F.3d at 1042 (greater weight may be given to

21

nonexamining doctors who are subject to cross-examination); see

22

§ 405.1527(c)(4) (ALJ will generally give more weight to opinions

23

that are “more consistent . . . with the record as a whole”);

24

§ 404.1527(c)(6) (in weighing medical opinions, ALJ may consider

25

“the amount of understanding of our disability programs and their

26

evidentiary requirements that an acceptable medical source has”

27

and “the extent to which an acceptable medical source is familiar

28

with the other information in your case record”).
30

(AR 121.)

(AR 121.)

As such, the ALJ

See Thomas, 278

1

Reversal is not warranted on this ground.

2

4.

3
4

Mental Impairments
a.

Relevant background

On July 24, 2010, Dr. Katrine Enrile, a physician, performed

5

a complete psychiatric evaluation of Plaintiff.9

6

Plaintiff reported that since her son had been killed in a car

7

accident, in 2007, she had suffered from severe insomnia, chronic

8

fatigue, anxiety, depression, poor concentration, and poor

9

appetite.

10
11

(AR 646-47.)

psychiatric treatment.

(AR 646-50.)

She was not, however, receiving any
(AR 647.)

Upon examination, Dr. Enrile found that Plaintiff was

12

cooperative, had good eye contact, and was able to establish

13

rapport with the doctor.

14

mood “cheerful,” and her affect sad, anxious, subdued,

15

constricted, and fearful.

16

linear and goal directed, and her thought content was normal

17

except for ruminations about her son’s death.

18

recall three of three words, perform serial sevens and simple

19

calculations, and correctly spell the word “world” forward and

20

backward.

21

of the United States and the capitals of California and the

22

United States.

23

(Id.)

(AR 648.)

(Id.)

Her speech was normal, her

Her thought processes were

(Id.)

She could

She could name the past and present President

(AR 649.)

Dr. Enrile diagnosed post-traumatic stress disorder and

24
9

25
26
27
28

Dr. Enrile did not state in her report whether she had any
area of specialization, but the California Medical Board’s
license-verification website shows that she reports being boardcertified in psychiatry. See Med. Bd. of Cal., BreEZe Online
License Verification, http://www.mbc.ca.gov/Breeze/
License_Verification.aspx (last accessed Jan. 27, 2016) (search
for Enrile, Katrine).
31

1

“[r]ule out Complicated Grieving process versus Depressive

2

Disorder” and assigned a global assessment of functioning (“GAF”)

3

score of 55.10

4

functioning would be “adequate”: her ability to focus attention

5

and follow simple oral and written instructions was “not

6

limited,” and she could perform detailed and complex tasks,

7

maintain regular attendance, perform work consistently, accept

8

instructions from supervisors, interact with coworkers and the

9

public, and deal with the stressors of competitive employment.

(AR 649.)

She believed Plaintiff’s work

Dr. Enrile believed that given the appropriate treatment,

10

(Id.)

11

Plaintiff’s condition would likely improve within 12 months.

12

(Id.)

13

Dr. Sams, a psychologist, first treated Plaintiff on January

14

4, 2012.

(AR 952.)

He found that Plaintiff displayed mild pain

15

behavior, ambulated independently, was alert and oriented, and

16

did not have hallucinations or delusions.

17

normal and goal directed.

18

affect constricted.

19

cognitive impairment, and she had good insight and judgment.

(Id.)

(Id.)

(Id.)

Her speech was

Her mood was dysphoric and her

There was no report or evidence of

20
10

21
22
23
24
25
26
27
28

Previous editions of the Diagnostic and Statistical
Manual of Mental Disorders stated that a GAF score of 51 to 60
indicated moderate symptoms or difficulty in social,
occupational, or school functioning. See Diagnostic and
Statistical Manual of Mental Disorders 34 (revised 4th ed. 2000).
But the Commissioner has declined to endorse GAF scores, Revised
Medical Criteria for Evaluating Mental Disorders and Traumatic
Brain Injury, Fed. Reg. 50764–65 (Aug. 21, 2000) (codified at 20
C.F.R. pts. 404 and 416) (GAF score “does not have a direct
correlation to the severity requirements in our mental disorders
listings”), and the most recent edition of the DSM “dropped” the
GAF scale, citing its lack of conceptual clarity and questionable
psychological measurements in practice. Diagnostic and
Statistical Manual of Mental Disorders 16 (5th ed. 2012).
32

1

(Id.)

Dr. Sams noted that Plaintiff’s psychological testing

2

indicated severe depression, moderate anxiety, mild hopelessness,

3

severe disability, and severe suffering.

4

that her medical doctor prescribe Zoloft and that Plaintiff

5

complete eight sessions of biofeedback and eight sessions of

6

individual psychiatric treatment.

(Id.)

He recommended

(Id.)

7

Dr. Sams saw Plaintiff for follow-up treatment on February

8

1, June 29, and September 7 and 14, 2012 (AR 1009-14), and June

9

7, 20, and 21, August 1, and September 25 and 26, 2013 (AR 1015-

10

19).

11

Plaintiff “feels trapped in her house with her sons (11, 6) with

12

no car,” had “severe financial problems,” and “wants to go to

13

school in mornings beginning in the fall, but her husband is also

14

returning to school.”

15

Sams noted that Plaintiff had received prescriptions for Zoloft

16

and Buspar and would start taking them that day.

17

In the June 20, 2013 treatment note, Dr. Sams noted that

(AR 1016.)

In the June 21, 2013 note, Dr.

(AR 1017.)

On January 30, 2014, Dr. Sams completed a Disability

18

Evaluation of Mental Disorder.

19

Plaintiff ambulated without assistance, demonstrated “mild pain

20

behavior,” and was generally cooperative, with good hygiene and

21

eye contact.

22

depression since 2007.”

23

with her extended family and visited friends or family monthly.

24

(AR 1058.)

(AR 1057.)

(AR 1057-62.)

He noted that

She reported a “continual history of
(Id.)

Plaintiff had a good relationship

25

Upon examination, Dr. Sams found that Plaintiff was alert

26

and oriented, pleasant and cooperative, and appeared restless.

27

(Id.)

28

with respect to rhythm and syntax, but retarded in rate.”

Her speech was spontaneous, goal directed, and “normal

33

(Id.)

1

Attention, concentration, and short-term memory were moderately

2

impaired.

3

normal, her intelligence was average, and insight and judgment

4

were good.

5

(Id.)

Long-term memory and verbal reasoning were

(Id.)

Plaintiff reported that her daily activities included “[u]p

6

at 6:30 am, kids off to school, spend much of the day resting,

7

doing light chores, time with family or in my room, to bed at

8

9:30.”

9

productive” and “4/16 waking hours on her feet.”

(AR 1059.)

She spent “3/16 waking hours being
(Id.)

Dr. Sams diagnosed post-traumatic stress disorder,

10
11

complicated bereavement, and anxiety disorder and assigned a GAF

12

score of 58.

13

impairment in her ability to remember locations and worklike

14

procedures, sustain an ordinary routine, work in coordination

15

with others, interact with the general public, ask simple

16

questions or request assistance, get along with coworkers,

17

maintain social appropriate behavior, respond appropriately to

18

changes in the work setting, and be aware of normal hazards and

19

take appropriate precautions.

20

impaired — which was defined as “not preclud[ing] function” — in

21

her ability to understand and remember very short and simple

22

instructions, carry out detailed instructions, and accept

23

instructions and respond appropriately to criticism from

24

supervisors.

25

defined as “not preclud[ing] function” —

26

simple work-related decisions and travel in unfamiliar places.

27

(Id.)

28

“preclud[ing] function” – in her ability to understand and

(AR 1062.)

(Id.)

He opined that Plaintiff had no

(AR 1059-61.)

She was mildly

She was moderately impaired — which was also
in her ability to make

She was “severe[ly] impaired” – which was defined as

34

1

remember detailed instructions, maintain attention and

2

concentration for extended periods, perform activities within a

3

schedule, maintain regular attendance and be punctual, complete a

4

normal workday without interruption from psychological symptoms

5

and perform at a consistent pace without an unreasonable number

6

of rest periods, and set realistic goals or make plans

7

independently of others.

8

Plaintiff’s prognosis was poor and her psychological status was

9

unlikely to improve.

Dr. Sams believed that

(Id.)

(AR 1062.)

In his April 8, 2014 decision, the ALJ found that because of

10
11

her mental impairments, Plaintiff could perform only “simple

12

tasks, that are in an object-oriented environment,” which would

13

“exclude work with the general public.”

14

119.)

15

of Plaintiff’s limitations was “slightly higher than what [she]

16

is actually capable of given the combination of her mental

17

impairments,” and thus he accorded it “some but not full weight.”

18

(AR 125.)

19

opinion.

20
21

(AR 121; see also AR

In so finding, the ALJ found that Dr. Enrile’s assessment

He likewise accorded “only some weight” to Dr. Sams’s
(AR 126.)
b.

Analysis

As an initial matter, the ALJ credited and accommodated most

22

of Dr. Sams’s findings when formulating Plaintiff’s RFC.

(AR 125

23

(finding that Dr. Sams’s opinion was “generally consistent with”

24

Plaintiff’s RFC).)

25

Plaintiff would be precluded from understanding and remembering

26

detailed instructions, maintaining attention and concentration

27

for extended periods, performing activities within a schedule,

28

maintaining regular attendance, being punctual, completing a

The ALJ noted that Dr. Sams found that

35

1

normal workday and workweek without interruption from

2

psychological symptoms, performing at a consistent pace, and

3

setting realistic goals and making plans independently of others.

4

(AR 125.)

5

limiting Plaintiff to performing only simple tasks in an “object-

6

oriented” and nonpublic environment, noting that the “ability to

7

avoid the public would enable [Plaintiff] to focus on her job

8

task while avoiding the distractions that public interaction

9

brings.”

The ALJ accommodated most of those findings by

(AR 125 (finding Dr. Sams’s opinion was “generally

10

consistent” with RFC).)

11

consistent with Dr. Sams’s findings that Plaintiff was only

12

“mildly” limited in her ability to understand and remember very

13

short and simple instructions and carry out detailed instructions

14

and had no significant limitations on her ability to carry out an

15

ordinary routine, remember locations and work-like procedures,

16

and work around coworkers and supervisors.

17

Indeed, as discussed below in Section C, the ALJ ultimately found

18

that Plaintiff could perform two sedentary jobs that involved

19

only one- and two-step instructions.

20

Indeed, Plaintiff’s RFC appears

(See AR 1059-61.)11

(AR 128.)

To the extent the ALJ rejected some of Dr. Sams’s findings,

21

he gave specific and legitimate reasons for doing so.

Dr. Sams

22

found that Plaintiff would be unable to perform activities on a

23

schedule, maintain regular attendance, be punctual, or complete a

24
25
26
27
28

11

Dr. Sams’s opinion that Plaintiff was significantly
limited in her ability to concentrate, remember, and carry out
tasks appears to conflict with findings in his treatment notes
that Plaintiff had no cognitive impairment. (See AR 952 (Jan.
2012, no evidence of cognitive impairment), 1015 (June 2013,
noting “[t]here is not evidence of cognitive impairment”).)
36

1

normal workday or workweek without interruption from

2

psychological symptoms, but the ALJ found that Plaintiff

3

“demonstrated through her statements about her daily routine and

4

the care of her young children that she can be somewhere in the

5

morning regularly and on time.”

6

to discount Dr. Sams’s opinion because it was “not fully

7

supported by [Plaintiff’s] own statements.”

8

169 F.3d at 601–02; § 404.1527(c)(4).

9

(AR 126.)

The ALJ was entitled

(Id.); see Morgan,

The ALJ was also entitled to rely on Dr. Enrile’s findings

10

instead of some of Dr. Sams’s.

11

substantial evidence supporting the RFC assessment because it was

12

based on her own independent clinical findings.

13

242 F.3d at 1149 (finding that examining physician’s “opinion

14

alone constitutes substantial evidence” supporting RFC assessment

15

“because it rests on his own independent examination of”

16

claimant); Andrews, 53 F.3d at 1041 (when “opinion of a

17

nontreating source is based on independent clinical findings,” it

18

“may itself be substantial evidence”).

19

apparently reviewed at least some of Plaintiff’s psychiatric

20

records.

21

“available for review”)); § 404.1527(c)(3) (in weighing medical

22

opinions, ALJ “will evaluate the degree to which these opinions

23

consider all of the pertinent evidence in [claimant’s] claim”).

24

Thus, any conflict in the properly supported medical-opinion

25

evidence was “solely the province of the ALJ to resolve.”

26

Andrews, 53 F.3d at 1041.

27

Dr. Enrile’s opinion constituted

See Tonapetyan,

Dr. Enrile also

(AR 647 (stating that “a psychiatric record” was

Reversal is not warranted on this ground.

28
37

1

C.

2

Plaintiff contends that the ALJ should not have relied on

3

the VE’s testimony that she could perform certain jobs because

4

they required frequent or constant reaching, which allegedly

5

conflicted with her RFC precluding her from using her arms above

6

shoulder level.

7
8
9

The ALJ Did Err In Relying on the VE testimony

1.

(J. Stip. at 52-53.)
Applicable law

At step five of the five-step process, the Commissioner has
the burden to demonstrate that the claimant can perform some work

10

that exists in “significant numbers” in the national or regional

11

economy, taking into account the claimant’s RFC, age, education,

12

and work experience.

13

Cir. 1999); 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1560(c).

14

The Commissioner may satisfy that burden either through the

15

testimony of a vocational expert or by reference to the Medical-

16

Vocational Guidelines appearing in 20 C.F.R. part 404, subpart P,

17

appendix 2.

18

Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012).

19

evidence about the requirements of a job, the ALJ has a

20

responsibility to ask about “any possible conflict” between that

21

evidence and the DOT.

22

Massachi v. Astrue, 486 F.3d 1149, 1152-54 (9th Cir. 2007)

23

(holding that application of SSR 00-4p is mandatory).

24

a conflict exists, the ALJ may accept vocational expert testimony

25

that contradicts the DOT only if the record contains “persuasive

26

evidence to support the deviation.”

27

(citing Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995));

28

see also Tommasetti, 533 F.3d at 1042 (finding error when “ALJ

Tackett v. Apfel, 180 F.3d 1094, 1100 (9th

Tackett, 180 F.3d at 1100-01; see also Hill v.
When a VE provides

See SSR 00-4p, 2000 WL 1898704, at *4;

38

When such

Pinto, 249 F.3d at 846

1

did not identify what aspect of the VE’s experience warranted

2

deviation from the DOT”).

3

2.

4

Relevant background

At the February 2014 hearing, the ALJ asked the VE whether a

5

person with Plaintiff’s RFC, which included “[n]o use of the

6

upper extremities above shoulder level bilaterally,” could

7

perform jobs existing in the local or national economy.

8

76.)

9

“assembler” jobs, DOT 734.687-018 and DOT 713.687-018.

(AR 75-

The VE responded that such a person could perform two
(AR 76.)

10

Plaintiff’s counsel then cross-examined the VE, but he did not

11

question her about those jobs, Plaintiff’s reaching limitations,

12

or any potential conflict with the DOT.

13

of the hearing, the ALJ asked the VE, “has your testimony been

14

consistent with the Dictionary of Occupational Titles, and its

15

companion publications?”

16

(Id.)

(AR 78.)

(AR 77-78.)

At the end

She responded, “It has been.”

17

In his April 2014 decision, the ALJ relied on the VE’s

18

testimony to find that Plaintiff could perform the two assembler

19

jobs, noting that “[p]ursuant to SSR 00-4p, the undersigned has

20

determined that the [VE’s] testimony is consistent with the

21

information contained in the [DOT].”

22

determined that Plaintiff was not disabled.

23
24

3.

(AR 128.)

Accordingly, he

(AR 128-29.)

Analysis

According to the DOT, the first assembler job identified by

25

the VE is titled “Assembler” and requires “constant” reaching,

26

DOT 734.687-018, 1991 WL 679950, and the second is titled “Final

27

Assembler” and requires “frequent” reaching, DOT 713.687-018,

28

1991 WL 679271.

Plaintiff argues that because she is unable to
39

1

use her arms above shoulder level and reaching can involve

2

extending her arms in “any direction,” an unresolved conflict

3

exists between the VE’s testimony and the DOT description of the

4

assembler jobs.

5

Plaintiff’s argument fails.

6

(J. Stip. at 52-53.)

For several reasons,

As an initial matter, the ALJ fulfilled his “affirmative

7

responsibility to ask about any possible conflict between [the

8

VE] evidence and information provided in the DOT,” SSR 00–4P,

9

2000 WL 1898704 at *4, by eliciting the VE’s affirmation that her

10

testimony was consistent with the DOT (see AR 78).

Moreover, no

11

apparent or actual conflict exists between Plaintiff’s inability

12

to use her arms above shoulder level and the assembler jobs’

13

requirement of constant or frequent reaching.

14

the DOT’s companion publication and the agency have generally

15

defined “reaching” as “extending the hands and arms in any

16

direction.”

17

Dep’t of Labor, Emp’t & Training Admin., Selected Characteristics

18

of Occupations Defined in the Revised Dictionary of Occupational

19

Titles, app. C (1993) (defining reaching as “[e]xtending hand(s)

20

and arm(s) in any direction”).

21

“reaching” includes extending the arms in “any” direction — such

22

as up, down, out, right, and left — that does not mean that a job

23

that involves reaching necessarily requires extending the arms in

24

all of those directions.

25

15-02185-JEM, 2015 WL 8492453, at *7 (C.D. Cal. Dec. 10, 2015)

26

(rejecting plaintiff’s assertion that DOT description for

27

frequent reaching conflicted with RFC for only occasional

28

overhead reaching because “[r]eaching need not always include

It is true that

SSR 85-15, 1985 WL 56857, at *7 (Jan. 1, 1985); U.S.

But just because the term

See Frias v. Colvin, No. CV

40

1

overhead reaching”); Rodriguez v. Astrue, No. CV 07-2152 PJW,

2

2008 WL 2561961, at *2 (C.D. Cal. June 25, 2008) (“The fact that

3

‘reaching’ as a general matter can involve ‘extending hand(s) or

4

arm(s) in any direction’ does not mean that the reaching required

5

for the jobs identified by the vocational expert in this case

6

involves reaching at or above shoulder-level.”).

7

The DOT descriptions of the two assembler jobs, moreover,

8

show that they do not in fact require use of the arms above the

9

shoulder.

Both jobs require only one or two steps: the

10

“Assembler” job involves “[i]nsert[ing] paper label in back of

11

celluloid or metal advertising buttons and forc[ing] shaped

12

stickpin under rim,” DOT 734.687-018, 1991 WL 679950, and the

13

“Final Assembler” job involves “[a]ttach[ing] nose pads and

14

temple pieces to optical frames, using handtools,” “position[ing]

15

parts in fixture to align screw holes,” and “[i]nsert[ing] and

16

tighten[ing] screws, using screwdriver,” DOT 713.687-018.

17

any reaching required by those jobs presumably would be forward

18

and down, in order to pick up parts and tools from a desk or

19

table before assembly.

20

indicates that Plaintiff would need to use her arms above

21

shoulder level.

22

perform those jobs does not conflict with the DOT.

23

2015 WL 8492453, at *7 (finding that because “the DOT does not

24

discuss overhead reaching, there is no conflict between the DOT

25

and the ALJ’s RFC limitation” on overhead work); Martinez v.

26

Colvin, No. 1:14-CV-1070-SMS, 2015 WL 5231973, at *4 (E.D. Cal.

27

Sept. 8, 2015) (finding no conflict between VE testimony that

28

plaintiff could perform three jobs, including Final Assembler,

Thus,

Nothing in those descriptions of tasks

Thus, the VE’s testimony that Plaintiff could

41

See Frias,

1

and plaintiff’s preclusion from overhead reaching because “[i]t

2

is clear that the reaching required to perform these occupations

3

is not overhead, and is consistent with [p]laintiff’s RFC”).

4

Plaintiff cites several unpublished district court cases

5

that found a conflict between frequent reaching and a preclusion

6

or restriction on reaching above the shoulder level.

7

Stip. at 52-53.)

8

this district is split” and cites cases that found no conflict in

9

similar circumstances.

(See J.

She recognizes, however, that “authority in

(Id.)

In any event, unpublished district

10

court cases are not binding on this Court, and to the extent they

11

conflict with this opinion, the Court declines to follow them.

12

Finally, Plaintiff’s argument is not well-taken because her

13

attorney cross-examined the VE at the administrative hearing but

14

neglected to question her about any conflicts with the DOT.

15

Solorzano v. Astrue, No. ED CV 11-369-PJW, 2012 WL 84527, at *6

16

(C.D. Cal. Jan. 10, 2012) (“Counsel are not supposed to be potted

17

plants at administrative hearings . . . [t]hey have an obligation

18

to take an active role and to raise issues that may impact the

19

ALJ’s decision while the hearing is proceeding so that they can

20

be addressed”).

21

VE’s testimony that a person who could not use her arms above

22

shoulder level could perform the two assembler jobs.

23

v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (holding that

24

VE’s recognized expertise provides necessary foundation for her

25

testimony).

26

See

The ALJ was therefore entitled to rely on the

Remand is not warranted on this ground.

27
28
42

See Bayliss

1
2

VI.

CONCLUSION
Consistent with the foregoing, and under sentence four of 42

3

U.S.C. § 405(g),12 IT IS ORDERED that judgment be entered

4

AFFIRMING the decision of the Commissioner, DENYING Plaintiff’s

5

request for remand, and DISMISSING this action with prejudice.

6

IT IS FURTHER ORDERED that the Clerk serve copies of this Order

7

and the Judgment on counsel for both parties.

8
9

DATED: __________________
January 29, 2016

10

______________________________
JEAN ROSENBLUTH
U.S. Magistrate Judge

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

12

That 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.”
43