Cynthia Maria Neals v. Carolyn W. Colvin

Filing 20

MEMORANDUM OPINION by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is affirmed. See Memorandum for details. (hr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CYNTHIA MARIA NEALS, 12 Plaintiff, 13 v. Case No. CV 16-834 JC MEMORANDUM OPINION 14 15 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 16 Defendant. 17 18 I. SUMMARY 19 On February 5, 2016, Cynthia Maria Neals (“plaintiff”) filed a Complaint 20 seeking review of the Commissioner of Social Security’s denial of plaintiff’s 21 applications for benefits. The parties have consented to proceed before the 22 undersigned United States Magistrate Judge. This matter is before the Court on the parties’ cross motions for summary 23 24 judgment, respectively (“Plaintiff’s Motion”) and (“Defendant’s Motion”). The 25 Court has taken both motions under submission without oral argument. See Fed. 26 R. Civ. P. 78; L.R. 7-15; February 10, 2016 Case Management Order ¶ 5. Based on the record as a whole and the applicable law, the decision of the 27 28 Commissioner is AFFIRMED. The findings of the Administrative Law Judge (“ALJ”) are supported by substantial evidence and are free from material error. 1 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 2 DECISION 3 On September 11, 2011, plaintiff filed applications for Supplemental 4 Security Income and Disability Insurance Benefits alleging disability on August 5 15, 2008, due to atrial fibrillation, and degenerated disc. (Administrative Record 6 (“AR”) 25, 232, 234, 262). At a hearing on October 2, 2013, (“First Hearing”) the 7 ALJ examined the medical record and heard testimony from plaintiff (who was 8 represented by counsel) and a vocational expert (“First Vocational Expert”). (AR 9 39-67). At a continued hearing on April 30, 2014 (“Second Hearing”) the ALJ 10 heard testimony from plaintiff, a different vocational expert (“Second Vocational 11 Expert”), and a medical expert. (AR 68-102). 12 On May 7, 2015, the ALJ determined that plaintiff was not disabled through 13 the date of the decision. (AR 25-33). Specifically, the ALJ found: (1) plaintiff 14 suffered from the following severe impairments: degenerative disc disease of the 15 lumbar and cervical spines, osteoarthritis of the left knee, and obesity (AR 27); 16 (2) plaintiff’s impairments, considered singly or in combination, did not meet or 17 medically equal a listed impairment (AR 28); (3) plaintiff retained the residual 18 functional capacity to perform light work (20 C.F.R. §§ 404.1567(b), 416.967(b)) 19 with additional limitations1 (AR 29); (4) plaintiff was capable of performing past 20 relevant work as an order clerk (AR 33); and (5) plaintiff’s statements regarding 21 the intensity, persistence, and limiting effects of subjective symptoms were not 22 entirely credible (AR 29). 23 On December 11, 2015, the Appeals Council denied plaintiff’s application 24 for review. (AR 1). 25 26 27 28 1 The ALJ determined that plaintiff had the following limitations: (i) no more walking than four hours out of an eight hour workday; (ii) no more than occasional postural maneuvers; (iii) no climbing ladders, ropes, or hazards; (iv) no exposure to hazards; and (v) no crawling. (AR 29). 2 1 III. APPLICABLE LEGAL STANDARDS 2 A. 3 To qualify for disability benefits, a claimant must show that the claimant is Sequential Evaluation Process 4 unable “to engage in any substantial gainful activity by reason of any medically 5 determinable physical or mental impairment which can be expected to result in 6 death or which has lasted or can be expected to last for a continuous period of not 7 less than 12 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) 8 (quoting 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted). The 9 impairment must render the claimant incapable of performing the work the 10 claimant previously performed and incapable of performing any other substantial 11 gainful employment that exists in the national economy. Tackett v. Apfel, 180 12 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 13 In assessing whether a claimant is disabled, an ALJ is required to use the 14 following five-step sequential evaluation process: 15 (1) 16 17 Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. (2) Is the claimant’s alleged impairment sufficiently severe to limit 18 the claimant’s ability to work? If not, the claimant is not 19 disabled. If so, proceed to step three. 20 (3) Does the claimant’s impairment, or combination of 21 impairments, meet or equal an impairment listed in 20 C.F.R. 22 Part 404, Subpart P, Appendix 1? If so, the claimant is 23 disabled. If not, proceed to step four. 24 (4) Does the claimant possess the residual functional capacity to 25 perform claimant’s past relevant work? If so, the claimant is 26 not disabled. If not, proceed to step five. 27 28 (5) Does the claimant’s residual functional capacity, when considered with the claimant’s age, education, and work 3 1 experience, allow the claimant to adjust to other work that 2 exists in significant numbers in the national economy? If so, 3 the claimant is not disabled. If not, the claimant is disabled. 4 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 5 Cir. 2006) (citations omitted); see also 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) 6 (explaining five-step sequential evaluation process). 7 The claimant has the burden of proof at steps one through four, and the 8 Commissioner has the burden of proof at step five. Burch v. Barnhart, 400 F.3d 9 676, 679 (9th Cir. 2005) (citation omitted). 10 B. 11 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 12 benefits only if it is not supported by substantial evidence or if it is based on legal 13 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 14 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 15 (9th Cir. 1995)). 16 Substantial evidence is “such relevant evidence as a reasonable mind might 17 accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 18 401 (1971) (citations and quotations omitted). It is more than a mere scintilla but 19 less than a preponderance. Robbins, 466 F.3d at 882 (citing Young v. Sullivan, 20 911 F.2d 180, 183 (9th Cir. 1990)). To determine whether substantial evidence 21 supports a finding, a court must “‘consider the record as a whole, weighing both 22 evidence that supports and evidence that detracts from the [Commissioner’s] 23 conclusion.’” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) 24 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 25 An ALJ’s decision to deny benefits must be upheld if the evidence could 26 reasonably support either affirming or reversing the decision. Robbins, 466 F.3d 27 at 882 (citing Flaten, 44 F.3d at 1457). 28 /// 4 1 Even when an ALJ’s decision contains error, it must be affirmed if the error 2 was harmless. Treichler v. Commissioner of Social Security Administration, 775 3 F.3d 1090, 1099 (9th Cir. 2014). An ALJ’s error is harmless if (1) it was 4 inconsequential to the ultimate nondisability determination; or (2) despite the 5 error, the ALJ’s path may reasonably be discerned, even if the ALJ’s decision was 6 drafted with less than ideal clarity. Id. (citation and quotation marks omitted). 7 The claimant has the burden to establish that an ALJ’s error was not harmless. 8 See Molina, 674 F.3d at 1111 (citing Shinseki v. Sanders, 556 U.S. 396, 409 9 (2009)). 10 IV. DISCUSSION 11 Plaintiff essentially contends that (1) the ALJ’s step four determination is 12 not supported by substantial evidence; and (2) the ALJ failed properly to consider 13 certain medical opinion evidence. As discussed in detail below, plaintiff is not 14 entitled to a reversal or remand on either ground. 15 16 17 A. Substantial Evidence Supports the ALJ’s Step Four Determination Regarding Past Relevant Work Plaintiff essentially contends that a reversal or remand is required because 18 the ALJ’s determination that plaintiff’s past relevant work included “order clerk” 19 was not supported by substantial evidence. (Plaintiff’s Motion at 9-11). The 20 Court disagrees. 21 22 1. Pertinent Law The Commissioner may deny benefits at step four if the claimant has the 23 residual functional capacity to perform past relevant work – i.e., a particular past 24 relevant job as “actually performed,” or the same kind of work as “generally” 25 performed in the national economy. Pinto v. Massanari, 249 F.3d 840, 844-45 26 (9th Cir. 2001) (citing Social Security Ruling (“SSR”) 82-61); SSR 82-62 at *3. 27 Social Security regulations define past relevant work as “work that [a claimant 28 has] done within the past 15 years, that was substantial gainful activity, and that 5 1 lasted long enough for [the claimant] to learn it.” 20 C.F.R. §§ 404.1560(b)(1), 2 416.960(b)(1). 3 When classifying a claimant’s past relevant job as “actually” performed, 4 ALJs look to “a properly completed vocational report” and the claimant’s 5 testimony. Pinto, 249 F.3d at 845 (citing SSR 82-41, 82-61). The best source for 6 information regarding how an occupation is “generally” performed is usually the 7 Dictionary of Occupational Titles (“DOT”). Id. at 845-46 (citations omitted); see 8 also 20 C.F.R. §§ 404.1566(d)(1), 416.966(d)(1). The DOT is the presumptive 9 authority on job classifications. Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 10 1995). The ALJ may also rely on testimony from a vocational expert. See Pinto, 11 249 F.3d at 845-46 (citations omitted); SSR 82-61 at *2; see, e.g., Bailey v. 12 Astrue, 2010 WL 3369152, *5 (C.D. Cal. Aug. 24, 2010) (“vocational expert’s 13 testimony constitutes substantial evidence to support [] ALJ’s Step Four 14 determination that plaintiff can perform his past relevant work”) (citations 15 omitted). 16 “Substantial gainful activity is work done for pay or profit that involves 17 significant mental or physical activities.” Lewis v. Apfel, 236 F.3d 503, 515 (9th 18 Cir. 2001) (citing 20 C.F.R. §§ 404.1571-404.1572 & 416.971-416.975). The 19 primary factor used to determine whether a claimant was engaged in substantial 20 gainful activity (“SGA”) at a particular job is the amount of earnings a claimant 21 derived from the job. Le v. Astrue, 540 F. Supp. 2d 1144, 1149 (C.D. Cal. 2008) 22 (citing 20 C.F.R. §§ 404.1574(a)(1), 416.974(a)(1)). “There is a rebuttable 23 presumption that the employee either was or was not engaged in SGA if his or her 24 average monthly earnings are above or below a certain amount established by the 25 Commissioner’s Earnings Guidelines.” Id. (citing 20 C.F.R. §§ 404.1574(b)(2)26 (3), 416.974(b)(2)-(3)); Lewis, 236 F.3d at 515 (“Earnings can be a presumptive, 27 but not conclusive, sign of whether a job is substantial gainful activity.”). For 28 example, for 2008 an employee would be presumed to have engaged in work at an 6 1 SGA level in a particular month if her average monthly earnings exceeded $940. 2 See 20 C.F.R. §§ 404.1574(b)(2)(ii), 416.974(b)(2)(ii); Tables of SGA Earnings 3 Guidelines and Effective Dates Based on Year of Work Activity, Social Security 4 Administration Program Operation Manual System (“POMS”) 5 § DI 10501.015(B).2 6 Although claimants have the burden to show that they are no longer able to 7 perform past relevant work, an ALJ’s determination at step four still “must be 8 developed and explained fully” and, at a minimum, contain the following specific 9 findings of fact: (1) the claimant’s residual functional capacity; (2) the physical 10 and mental demands of the past relevant job/occupation; and (3) that the 11 claimant’s residual functional capacity would permit a return to his or her past job 12 or occupation. Pinto, 249 F.3d at 844-45 (citations omitted); 20 C.F.R. 13 §§ 404.1520(e), 416.920(e); SSR 82-62 at *3-*4. 14 15 2. Analysis Here, substantial evidence supports the ALJ’s determination that plaintiff’s 16 past relevant work included “order clerk.” 17 First, there is substantial evidence in the record that plaintiff worked as an 18 “order clerk” at some point within the relevant fifteen year look-back period – 19 which, the parties agree, began at least in May 1999. (Plaintiff’s Motion at 11; 20 Defendant’s Motion at 5). Plaintiff acknowledged that she worked at “Specialty 21 Merchandise” in 1999 for “just the one year.” (AR 49-50, 95-96). At Specialty 22 Merchandise plaintiff worked “mainly in the order department” taking “incoming 23 call orders[]” for “kits” of small business information, and she also answered 24 customer telephone questions regarding pending orders. (AR 49-50, 95-96). Most 25 of the time plaintiff performed the job while sitting, but would stand at her desk 26 27 28 2 The POMS manual is considered persuasive authority, even though it does not carry the “force and effect of law.” Hermes v. Secretary of Health and Human Services, 926 F.2d 789, 791 n.1 (9th Cir.), cert. denied, 502 U.S. 817 (1991). 7 1 “five or 10 minutes” at a time. (AR 95-96). In a “Past Relevant Work Summary” 2 prepared for plaintiff and in testimony the Second Vocational Expert opined that 3 plaintiff’s past work included the job of “Order Clerk,” DOT § 249.362-026, with 4 a Specific Vocational Preparation (“SVP”) Level 4, sedentary exertion level both 5 as performed and generally, and acquired skills noted as “took order over the 6 phone.” (AR 98, 310). 7 Second, plaintiff has not rebutted the presumption that her work at Specialty 8 Merchandise in 1999 plaintiff was at an SGA level. As plaintiff notes, a “Detailed 9 Earnings Query” suggests that in 1999 plaintiff worked for five different 10 employers, but the document does not identify the name of any specific employer. 11 (Plaintiff’s Motion at 7, 10; AR 244). Nonetheless, it would have been reasonable 12 for the ALJ to infer that in 1999 Specialty Merchandise was the employer from 13 which plaintiff earned the largest total yearly wages (i.e., $15,400.73). (See AR 14 244). For example, at the First Hearing, the ALJ referred to plaintiff’s job at 15 Specialty Merchandise in 1999 as “previous work that was significant. . . .” (AR 16 49). At the Second Hearing, when the ALJ asked if the job at Specialty 17 Merchandise “was just the one year[,]” plaintiff testified “yes.” (AR 95-96). 18 Accordingly, plaintiff’s average monthly earnings for Specialty Merchandise in 19 1999 would have been at least $1,283.39 (based on total yearly wages of 20 $15,400.73 averaged over a period of 12 months). (AR 241, 244). Such average 21 monthly earnings were well above the highest maximum SGA level established by 22 the Commissioner for 1999 (i.e., $700 per month).3 See 20 C.F.R. 23 §§ 404.1574(b)(2)(ii), 416.974(b)(2)(ii); POMS § DI 10501.015(B). To the extent 24 plaintiff argues that the vocational evidence does not reflect any employment at 25 the SGA level during any month in 1999 that fell within the relevant 15 year 26 27 28 3 The Commissioner’s maximum SGA level from January through June 1999 was $500, and changed to $700 beginning in July 1999. See 20 C.F.R. § 404.1574(b)(2)(i) & Table 1; 20 C.F.R. § 416.974(b)(2)(i) & Table 1; see also POMS § DI 10501.015(B). 8 1 period (see Plaintiff’s Motion at 11 [“No evidence suggests and the ALJ did not 2 find that [plaintiff] worked as an order clerk after April 3, 1999.”]), this Court will 3 not second guess the ALJ’s reasonable implicit determination to the contrary, even 4 if such evidence could give rise to inferences more favorable to plaintiff. See 5 Molina, 674 F.3d at 1111 (“Even when the evidence is susceptible to more than 6 one rational interpretation, we must uphold the ALJ’s findings if they are 7 supported by inferences reasonably drawn from the record.”) (citation omitted). 8 Finally, there is substantial evidence that plaintiff’s work at Specialty 9 Merchandise “lasted long enough for [plaintiff] to learn it.” 20 C.F.R. 10 §§ 404.1560(b)(1), 416.960(b)(1). The DOT states that an “Order Clerk” has an 11 SVP of 4, and thus requires a learning period of “[o]ver 3 months up to and 12 including 6 months.” DOT § 249.362-026 [“Order Clerk”]; see also DOT, 13 Appendix C – Components of the Definition Trailer, 1991 WL 688702 (1991). 14 Here, the record supports a reasonable inference that plaintiff was employed, at a 15 minimum, “over 3 months. . . .” (See AR 96) (plaintiff’s acknowledging at Second 16 Hearing that Specialty Merchandise job in 1999 lasted “the one year[]”). 17 Accordingly, a remand or reversal on this basis is not warranted. 18 B. The ALJ’s Evaluation of the Medical Opinion Evidence Is 19 Supported by Substantial Evidence and Free of Material Error 20 Plaintiff essentially contends that a reversal or remand is required because 21 the ALJ failed properly to consider significant probative evidence from (1) Dr. 22 Stephan Simonian, an examining psychiatrist who opined that plaintiff was 23 “moderately limited” in her ability to interact with supervisors, coworkers, and the 24 public, but had no other mental limitations (“Dr. Simonian’s Opinion”) (AR 367); 25 and (2) Dr. F. L. Williams, a reviewing medical consultant who opined that 26 plaintiff had “moderate” difficulty maintaining social functioning, but concluded 27 that plaintiff’s mental impairment was “non severe” (AR 129-30). The Court 28 disagrees. 9 1 2 1. Pertinent Law An ALJ is required to evaluate “every medical opinion” in a claimant’s case 3 record. 20 C.F.R. §§ 404.1527(b), (c), 416.927(b), (c). Nonetheless, the amount 4 of weight given to medical opinions in Social Security cases, however, varies 5 depending on the type of medical professional who provided the opinions, namely 6 “treating physicians,” “examining physicians,” and “nonexamining physicians” 7 (e.g., “State agency medical or psychological consultant[s]”). 20 C.F.R. 8 §§ 404.1527(c)(1)-(2) & (e), 404.1502, 404.1513(a); 416.927(c)(1)-(2) & (e), 9 416.902, 416.913(a); Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) 10 (citation and quotation marks omitted). A treating physician’s opinion is generally 11 given the most weight, and may be “controlling” if it is “well-supported by 12 medically acceptable clinical and laboratory diagnostic techniques and is not 13 inconsistent with the other substantial evidence in [the claimant’s] case record[.]” 14 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Orn v. Astrue, 495 F.3d 625, 631 (9th 15 Cir. 2007) (citations and quotation marks omitted). In turn, an examining, but 16 non-treating physician’s opinion is entitled to less weight than a treating 17 physician’s, but more weight than a nonexamining physician’s opinion. Garrison, 18 759 F.3d at 1012 (citation omitted). 19 An ALJ may reject the uncontroverted opinion of either a treating or an 20 examining physician by providing “clear and convincing reasons that are 21 supported by substantial evidence” for doing so. Bayliss v. Barnhart, 427 F.3d 22 1211, 1216 (9th Cir. 2005) (citation omitted). Where a treating or examining 23 physician’s opinion is contradicted by another doctor’s opinion, an ALJ may reject 24 such opinion only “by providing specific and legitimate reasons that are supported 25 by substantial evidence.” Garrison, 759 F.3d at 1012 (citation and footnote 26 omitted). An ALJ may provide “substantial evidence” for rejecting a medical 27 opinion by “setting out a detailed and thorough summary of the facts and 28 conflicting clinical evidence, stating his [or her] interpretation thereof, and making 10 1 findings.” Id. (quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)) 2 (quotation marks omitted). An ALJ must provide more than mere “conclusions” 3 or “broad and vague” reasons for rejecting a treating or examining physician’s 4 opinion. Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988); McAllister v. 5 Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) (citation omitted). “[The ALJ] must 6 set forth his [or her] own interpretations and explain why they, rather than the 7 [physician’s], are correct.” Embrey, 849 F.2d at 421-22. 8 While not bound by statements about a claimant’s condition provided by 9 nonexamining physicians, ALJs must consider such findings as “opinion 10 evidence,” and determine the weight to be given such opinions using essentially 11 the same factors for weighing opinion evidence generally, such as “supportability 12 of the opinion in the evidence,” “the consistency of the opinion with the record as 13 a whole,” “any explanation for the opinion provided by the [nonexamining 14 physician],” as well as “all other factors that could have a bearing on the weight to 15 which an opinion is entitled, [such as] any specialization of the [nonexamining 16 physician].” 20 C.F.R. §§ 404.1527(b), (c), 416.927(b), (c). Since nonexamining 17 physicians, by definition, have no examining or treating relationship with a 18 claimant, the weight given to their opinions will primarily depend on the degree to 19 which the opinions provided are supported by evidence in the case record and the 20 extent to which the physicians explained their opinions. 20 C.F.R. 21 §§ 404.1527(c)(2)(ii), (c)(3), 416.927(c)(2)(ii), (c)(3); see also SSR 96-6P (“The 22 regulations provide progressively more rigorous tests for weighing opinions as the 23 ties between the source of the opinion and the individual become weaker.”). 24 Nonetheless, opinions of a nonexamining physician do not “inevitably” deserve 25 less weight, and may serve as substantial evidence supporting an ALJ’s decision 26 “when they are supported by other evidence in the record and are consistent with 27 it.” Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citations omitted). 28 /// 11 1 An ALJ “must explain in the decision the weight given to [nonexamining] 2 opinions” in the same manner as “opinions from treating [and] nontreating 3 sources. . . .” 20 C.F.R. § 404.1527(e)(2)(ii); 20 C.F.R. § 416.927(e)(2)(ii); SSR 4 96-6p (ALJ not bound by, but may not “ignore” findings of state agency doctors, 5 and ALJ’s decision must explain the weight given to such opinions); Sawyer v. 6 Astrue, 303 Fed. Appx. 453, 455 (9th Cir. 2008) (same); see generally 42 U.S.C.A. 7 § 405(b)(1) (“ALJ’s unfavorable decision must, among other things, “set[] forth a 8 discussion of the evidence” and state “the reason or reasons upon which it is 9 based”). 10 11 2. Analysis First, here, the ALJ implicitly rejected Dr. Simonian’s Opinion because it 12 was based entirely on plaintiff’s self reports that she had an “attitude problem” and 13 had been fired from a job because of her attitude. (AR 28) (citing Ex. B5F at 5 14 [AR 367]). In addition, plaintiff does not dispute the ALJ’s finding that 15 information provided by plaintiff “generally may not be entirely reliable.” (AR 16 30). Thus, the ALJ properly gave little weight to Dr. Simonian’s Opinion based 17 thereon. See, e.g., Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (ALJ 18 may discount medical opinion based “to a large extent” on a claimant’s 19 “self-reports” that the ALJ found “not credible”) (internal quotation marks and 20 citations omitted). In addition, the ALJ properly found that plaintiff’s functional 21 limitations were “mostly related to [plaintiff’s] physical impairments, as opposed 22 to [any] underlying mental impairment” given the paltry evidence in the record of 23 any mental health treatment or objective findings regarding plaintiff’s mental 24 status. (AR 28). An ALJ may properly reject an examining physician’s opinion 25 that is unsupported by clinical findings or the record as a whole. See Mendoza v. 26 Astrue, 371 Fed. Appx. 829, 831-32 (9th Cir. 2010) (“The ALJ permissibly 27 rejected a medical opinion of a non-treating examining physician that was 28 unsupported by the record as a whole.”) (citing Batson v. Commissioner of Social 12 1 Security Administration, 359 F.3d 1190, 1195 (9th Cir. 2004)); cf. Matney v. 2 Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (ALJ may reject the conclusory 3 opinion of an examining physician if the opinion is unsupported by clinical 4 findings). 5 Second, the ALJ properly gave little or no weight to Dr. Williams’ Opinion 6 which (a) ultimately did not reflect any significant limitation in plaintiff’s mental 7 functioning, and (b) was apparently entirely based on Dr. Simonian’s Opinion 8 which, as just discussed, the ALJ was entitled to reject. (AR 129-30); cf., e.g., 9 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (opinion of 10 nonexamining medical expert constituted substantial evidence to the extent it 11 rested on examining physician’s independent objective findings). 12 Finally, to the extent the ALJ did not properly consider the opinions of Dr. 13 Simonian and/or Dr. Williams, plaintiff has not satisfied her burden to show that 14 any such error was prejudicial. For example, plaintiff fails to demonstrate that 15 either opinion reflects any distinct mental limitation related to an independent 16 underlying mental impairment that was not already accounted for in the ALJ’s 17 assessment of plaintiff’s physical residual functional capacity. See Sawyer, 303 18 Fed. Appx. at 455 (error in ALJ’s failure properly to consider medical opinion 19 evidence considered harmless “where the mistake was nonprejudicial to the 20 claimant or irrelevant to the ALJ’s ultimate disability conclusion. . . .”) (citing 21 Stout, 454 F.3d at 1055); cf., e.g., Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 22 1993) (in upholding the Commissioner’s decision, the Court emphasized: “None 23 of the doctors who examined [claimant] expressed the opinion that he was totally 24 disabled”). 25 Accordingly, a remand or reversal on this basis is not warranted. 26 /// 27 /// 28 /// 13 1 V. CONCLUSION 2 For the foregoing reasons, the decision of the Commissioner of Social 3 Security is affirmed. 4 LET JUDGMENT BE ENTERED ACCORDINGLY. 5 DATED: December 21, 2016 6 7 8 ______________/s/___________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14

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