Maria Uribe v. Carolyn W. Colvin

Filing 18

MEMORANDUM DECISION AND ORDER by Magistrate Judge Frederick F. Mumm. The judgment of the Commissioner is affirmed. (See document for further details.) (sbou)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MARIA URIBE, Plaintiff, 12 13 14 15 16 17 v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) No. CV 16-3942 FFM MEMORANDUM DECISION AND ORDER Plaintiff brings this action seeking to overturn the decision of the Commissioner 18 of the Social Security Administration denying her application for Disability Insurance 19 Benefits. Plaintiff and defendant consented to the jurisdiction of the undersigned 20 United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). Pursuant to the Case 21 Management Order filed on June 29, 2016, on March 10, 2017, the parties filed a Joint 22 Stipulation (“JS”) detailing each party’s arguments and authorities. The Court has 23 reviewed the administrative record (the “AR”) and the Joint Stipulation. For the reasons 24 stated below, the decision of the Commissioner is affirmed. 25 26 PRIOR PROCEEDINGS Plaintiff filed for benefits on July 24, 2012. (AR 164-69.) Her application was 27 denied initially and on reconsideration. (AR 66-101.) Thereafter, plaintiff requested a 28 hearing before an administrative law judge (“ALJ”). (AR 117-18.) On September 15, 1 1 2014, ALJ Sally C. Reason held a hearing. (AR 33-65.) Plaintiff was present with 2 counsel and testified at the hearing. (See id.) 3 On October 14, 2014, the ALJ issued a decision denying plaintiff benefits. (AR 4 16-27.) In the decision, the ALJ found that plaintiff’s impairments neither meet nor 5 equal any listing found in 20 C.F.R. Part 404, subpart P, app’x 1. (AR 22.) Moreover, 6 the ALJ determined that plaintiff possesses the residual functional capacity (“RFC”) to 7 “perform light work as defined in 20 CFR 404.1567(b)[,] except she cannot walk on 8 uneven terrain; she can never climb ladders or work at unprotected heights; and she can 9 only occasionally climb ramps/stairs, balance, kneel, stoop, crouch, and crawl.” (AR 10 22.) In determining plaintiff’s RFC, the ALJ rejected the conclusions of several of 11 plaintiff’s physicians, as well as plaintiff’s own statements about her limitations insofar 12 as they were inconsistent with the RFC. (AR 22-25.) Based on plaintiff’s RFC and the 13 testimony of a vocational expert, the ALJ found that plaintiff is capable of performing 14 her prior work as a benefits manager or administrative assistant and is therefore not 15 disabled. (AR 26-27.) 16 17 On March 31, 2016, the Appeals Council denied review. (AR 1-6.) Plaintiff filed the instant complaint on June 3, 2016. (Dkt. 1.) CONTENTIONS 18 19 Plaintiff raises four contentions in this action: 20 1. Whether the ALJ erred in evaluating plaintiff’s physicians’ opinions. 21 2. Whether the ALJ erred in determining which of plaintiff’s impairments are 22 severe. 23 3. Whether the ALJ erred in determining plaintiff’s RFC. 24 4. Whether the ALJ erred in evaluating plaintiff’s credibility. 25 STANDARD OF REVIEW 26 Under 42 U.S.C. § 405(g), this Court reviews the Administration’s decisions to 27 determine if: (1) the Administration’s findings are supported by substantial evidence; 28 and (2) the Administration used proper legal standards. Smolen v. Chater, 80 F.3d 2 1 1273, 1279 (9th Cir. 1996) (citations omitted). “Substantial evidence is more than a 2 scintilla, but less than a preponderance.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 3 1998) (citation omitted). To determine whether substantial evidence supports a finding, 4 “a court must consider the record as a whole, weighing both evidence that supports and 5 evidence that detracts from the [Commissioner’s] conclusion.” Auckland v. Massanari, 6 257 F.3d 1033, 1035 (9th Cir. 2001) (internal quotation marks omitted). If the evidence in the record can reasonably support either affirming or reversing 7 8 the ALJ’s conclusion, the Court may not substitute its judgment for that of the ALJ. 9 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citing Flaten v. Sec’y of 10 Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)). However, even if 11 substantial evidence exists to support the Commissioner’s decision, the decision must 12 be reversed if the proper legal standard was not applied. Howard ex rel. Wolff v. 13 Barnhart, 341 F.3d 1006, 1014-15 (9th Cir. 2003); see also Smolen, 80 F.3d at 1279. DISCUSSION 14 Because plaintiff’s credibility is critical to multiple issues within this decision, 15 16 the Court discusses plaintiff’s fourth contention first. 17 A. Whether the ALJ Properly Evaluated Plaintiff’s Credibility. 18 1. 19 In her decision, the ALJ rejected plaintiff’s subjective complaints about her 20 21 ALJ’s Decision symptoms as follows: As already explained, the claimant’s subjective complaints and 22 allegations in this case are largely unsubstantiated by medical 23 abnormalities. Like the aforementioned imaging and other 24 diagnostic testing, all of which was normal, the clinical findings 25 noted throughout the record are essentially normal and, in this 26 regard, cast significant doubt on the degree of limitation the claimant 27 has alleged. For example, the aforementioned primary care 28 physician, Dr. Wilson, noted upon examination of the claimant in 3 1 January 2012 that she had no point tenderness along [her] cervical 2 and thoracic spine, negative TMJ, no edema, no respiratory 3 abnormalities, no cognitive impairment, and no other abnormalities 4 (Exhibit 6F/5). The aforementioned neurologist, Dr. Cardenas, noted 5 on examination in August 2012 that the claimant showed no apparent 6 distress and had normal heart and lung sounds, no peripheral edema, 7 normal speech, normal cognition/comprehension, normal cranial 8 nerve function, normal muscle tone and bulk, full (5/5) motor power, 9 normal reflexes, normal sensation, normal coordination, and a 10 normal stance and gait (Exhibit 6F/14). Similarly, despite reporting myriad subjective complaints, the 11 12 claimant exhibited no objective deficits upon comprehensive 13 examination by a consulting physician, A. Karamlou, M.D., at the 14 State Agency’s request in October 2012. Dr. Karamlou noted that 15 the claimant was in no acute distress and had normal blood pressure, 16 normal heart and lung sounds, an objectively normal musculoskeletal 17 examination, and no neurologic abnormalities. Contrary to her 18 above referenced allegations, the claimant’s gait was noted to be 19 normal and unassisted (Exhibit 8F/3). Her range of neck and back 20 motion was normal (Exhibit 8F/3). There was no evidence of any 21 paraspinal muscle spasm or radiculopathy (Exhibit 8F/3). Nor was 22 there any evidence of joint inflammation or limitation in the range of 23 motion of the claimant’s shoulders, elbows, wrists, hands, hips, 24 knees, and ankles (Exhibit 8F/4). Dr. Karamlou noted that the 25 claimant had well preserved (5/5) grip strength, normal bulk and full 26 (5/5) motor power throughout all four extremities, as well as normal 27 reflexes, normal sensation, and normal coordination (Exhibit 8F/4). 28 ... 4 1 The foregoing findings simply do not suggest the presence of 2 any impairment that has been more limiting than found herein. A 3 number of other inconsistencies cast additional doubt on the 4 reliability of the claimant’s subjective complaints and allegations in 5 this case. For example, in connection with her application, the 6 claimant alleged having “bilateral ear damage and brain damage” (as 7 well as other “physical and mental impairments of that of an ‘ill 8 elderly woman’” (Exhibit 6E/8). Yet, as detailed above, diagnostic 9 workup indicates the claimant does not in fact have any brain or ear 10 damage. Similarly, in connection with her appeal (in January 2013), 11 the claimant alleged that she had recently been exposed to 12 fluorescent light (notably, while “running several errands” for her 13 family), and that she consequently developed “excruciating and 14 severe headache[s], several vomiting episodes, physical pain, and 15 total and physical weakness” (Exhibit 9E/8). If this were true, 16 however, then one might reasonably expect to see some evidence of 17 the need for hospitalization or other physician intervention at that 18 time. Yet, a review of the record reveals no such evidence, 19 suggesting the claimant may have overstated the severity of her 20 alleged symptoms. 21 A number of other inconsistencies arose from the claimant’s 22 testimony at the hearing. For example, the claimant testified that she 23 has been depressed, yet she acknowledged that she is not receiving 24 any treatment for depression (despite the fact that she sees a 25 psychiatrist), and she has expressly denied having any significant 26 depression when specifically asked in the clinical context (Exhibit 27 7F/l & Hearing Record). She also testified that she is physically 28 unable to do any exercise, yet she acknowledged that she does 5 1 housework (e.g., vacuuming) and yard work (e.g., gardening) 2 (Hearing Record). Additionally, she testified that she has very 3 severe morning pain and stiffness, yet acknowledged that she leaves 4 home every morning and takes her kids to school (Hearing Record). 5 More generally, the claimant’s reported daily activities are not 6 limited to the extent one would expect, given her subjective 7 complaints and allegations in this case. In addition to taking her kids 8 to school in the morning, as previously mentioned, the claimant has 9 acknowledged she is able to dress, bathe, do household chores, use a 10 computer to check her email, and spend time with others (Exhibit 11 7F/3). The evidence also indicates the claimant helps her kids get 12 ready for school, prepares breakfast and lunch, cooks dinner, drives a 13 car, regularly shops in stores for groceries and/or other items, 14 watches television, plays board games, goes to church, and spends 15 time with others (Exhibit 5E/1-6). Additionally, by her own report, 16 the claimant does some yard work, helps her kids with their 17 homework, talks daily with her mother and brother on the telephone, 18 and maintains “great communication” with her kids’ school teachers 19 (Exhibit 6E/4, 7 & Hearing Record). 20 Also inconsistent with the claimant’s allegations of ongoing, 21 disabling symptoms is evidence of alleged symptom abatement in the 22 treatment records. A review of the treatment records reveals the 23 claimant acknowledged significant improvement after she started 24 taking medication, gabapentin and Ritalin, reporting that she was 25 only “very rarely” having symptoms and that she generally felt as 26 though she had gotten her life back (Exhibit 9F/10). In fact, in 27 December 2012, the claimant reportedly acknowledged that she was 28 “very satisfied with her current symptoms” (Exhibit 9F/26-27). At 6 1 that time, Dr. Chung noted: “[The claimant] is now focusing on 2 exercise and increased activities to promote weight loss and add 3 purpose and satisfaction to her life . . . . She now looks forward to 4 dancing and enjoying her family” (Exhibit 9F/26-27). This evidence, 5 like much of the other evidence discussed above and reflected in the 6 medical records, contrasts sharply with the claimant’s allegations of 7 essentially debilitating symptoms. 8 9 (AR 23-25.) 2. Analysis 10 An ALJ engages in a two-step analysis to determine whether a claimant’s 11 subjective complaints about the severity of her symptoms are credible. First, the ALJ 12 must determine whether the claimant has produced evidence of an impairment that is 13 reasonably likely to cause the alleged symptoms. Bunnell v. Sullivan, 947 F.2d 341, 14 349 (9th Cir. 1991) (en banc). If the claimant satisfies the first prong of the analysis, 15 she is not required to produce medical evidence supporting her symptoms’ alleged 16 severity. See Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (citations 17 omitted). Rather, the ALJ moves on to the second step of the analysis and may 18 discredit the claimant’s subjective complaints only upon: (1) finding affirmative 19 evidence of malingering or (2) providing clear and convincing reasons for doing so. 20 Smolen, 80 F.3d at 1281. 21 a. Inconsistent Statements 22 An ALJ may discredit a claimant where her testimony is “inconsistent with her 23 statements to her doctors.” Terrazas v. Comm’r Soc. Sec. Admin., 500 F. App’x 628, 24 630 (9th Cir. 2012); see also Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) 25 (affirming credibility determination where ALJ partly discredited plaintiff because she 26 made inconsistent statements to her doctors). 27 28 As the ALJ noted, despite plaintiff’s complaints of ongoing disabling impairments, plaintiff had essentially reported to her doctors that her symptoms had 7 1 improved and were no longer disabling. To be sure, during the early months of 2012, 2 plaintiff complained to her doctors of severe headaches, fatigue, muscle cramps and 3 contractions, light sensitivity, and memory loss. (AR 387.) However, plaintiff 4 subsequently began treatment for her conditions and by December 5, 2012, plaintiff 5 was “very satisfied” with her symptoms, which had shown “marked improvement.” 6 (AR 392.) Indeed, at that time, plaintiff’s condition had apparently improved so much 7 that she felt well enough to dance at an upcoming wedding. (AR 392-93.) Apparently, 8 plaintiff’s photosensitivity had also abated. (AR 392.) Plaintiff’s condition seemingly 9 continued to improve thereafter and by February 1, 2013, plaintiff’s dystonic 10 movements and twitches occurred only “very rarely.” (AR 376.) Likewise, on March 11 8, 2013, plaintiff reported “overall improvement” with respect to her headaches, 12 inattention, and muscle contractions. (AR 387-90.) 13 Further still, the Court notes that although plaintiff’s symptoms seemed to 14 regress at times during 2013, plaintiff’s medical records still demonstrated a pattern of 15 overall improvement. For instance, while plaintiff complained of diffuse pain, fatigue, 16 and forgetfulness in September 2013, she also stated that she was able to exercise on a 17 stationary bike and use her family pool. (AR 413.) Likewise, plaintiff reported in 18 March 2013 that she suffered headaches several times per week, but that she was able 19 to treat those headaches with ibuprofen (AR 55), suggesting that the pain was less than 20 disabling. Cf. Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) (finding that 21 claimant’s use of over-the-counter pain medication suggested her pain was less severe 22 than alleged). Finally, plaintiff continued to report improvement in her symptoms, 23 even into 2014. (AR 424 (most symptoms subsided), 429 (improvement with dystonic 24 movements), 484 (report from September 2014 indicating overall improvement with 25 symptoms).) Thus, substantial evidence supports the ALJ’s determination that 26 plaintiff’s reports of improvement to her doctors undermined her complaints of 27 continuous debilitating symptoms. 28 /// 8 1 The ALJ further discredited plaintiff because although she testified that she had 2 experienced debilitating pain and vomiting from exposure to fluorescent lights, no such 3 episodes appear in plaintiff’s medical records.1 It was rational for the ALJ to conclude 4 that plaintiff would have reported such severe reactions to fluorescent lights to her 5 doctors had her symptoms been so severe they caused her to vomit. See Saffaie v. 6 Colvin, 2016 WL 5799025, at *7 (C.D. Cal. Oct. 3, 2016) (finding that ALJ was 7 permitted to discredit claimant’s complaints of pain so severe she vomited, because 8 plaintiff’s medical records contained no such support). 9 For these reasons, the Court concludes that the ALJ permissibly discredited 10 statements based on inconsistencies between plaintiff’s complaints of disabling 11 symptoms and her statements to her physicians. b. 12 13 Objective Medical Evidence The ALJ further discredited plaintiff on the basis that her complaints, 14 particularly her allegations of photosensitivity, were “largely unsubstantiated by 15 medical abnormalities.” Substantial evidence supports this determination. Plaintiff 16 underwent various neurological studies, including a CT scan and an MRI. (AR 316.) 17 However, the tests were inconclusive, at most, and provide no insight into the cause or 18 severity of plaintiff’s alleged light sensitivity. (AR 316 (CT and MRI negative), 326 19 (same), 383 (normal MRIs).) Likewise, while plaintiff’s MRIs did discover “six white 20 matter foci,” reviewing physicians remarked that the foci were merely a possible source 21 of plaintiff’s headaches, rather than her purported photosensitivity. (AR 352 (brain 22 matter foci “may be related to headaches” (emphasis added)).) Notably, these findings 23 also did not provide any information about the potential severity of plaintiff’s 24 headaches. Based on the foregoing, the Court concludes that the apparent lack of 25 26 27 28 1 On October 17, 2011, plaintiff did report to Dr. Wilson that on one occasion she visited the hospital. (AR 392.) However, she stated that visit was the result of “ear pain and possible facial droop” rather than severe symptoms resulting from her exposure to fluorescent lights. (See id.) Accordingly, the incident does not support plaintiff’s reports of debilitating headaches and vomiting. 9 1 medical evidence supporting plaintiff’s complaints was a permissible basis for the 2 ALJ’s adverse credibility determination. Burch v. Barnhart, 400 F.3d 676, 681 (9th 3 Cir. 2005) (“Although lack of medical evidence cannot form the sole basis for 4 discounting pain testimony, it is a factor that the ALJ can consider in his credibility 5 analysis.”). c. 6 Daily Activities An ALJ may permissibly discredit a claimant where the claimant performs daily 7 8 activities that are inconsistent with her claims about her impairments. See Orn v. 9 Astrue, 495 F.3d 625, 639 (9th Cir. 2007). In this regard, “[e]ven where [a claimant’s 10 daily activities] suggest some difficulty functioning, they may be grounds for 11 discrediting the claimant’s testimony to the extent that they contradict claims of a 12 totally disabling impairment.” Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) 13 (citations omitted). As the ALJ pointed out, plaintiff’s admitted daily activities are inconsistent with 14 15 her allegations about her limitations. At the hearing and in reports to her doctors, 16 plaintiff alleged that she has difficulty functioning in the mornings because she suffers 17 severe pain and stiffness. (AR 55-56 (hearing testimony); see, e.g., AR 335 (reports of 18 morning pain to doctors).) However, plaintiff also admitted that each morning she 19 readies her children for school and drives them to campus (AR 50) , which undermine 20 her claims of disabling symptoms each morning. Moreover, despite plaintiff’s 21 complaints that she is susceptible to fluorescent light, she admitted that she shops in 22 stores (AR 60), which presumably employ fluorescent lights. Likewise, 23 notwithstanding plaintiff’s claims of sensitivity to UV light, she admitted that she 24 paints patio furniture (AR 392), works in her garden (AR 51), and exercises in her pool 25 (AR 413), all of which would likely expose her to UV light. Thus, the ALJ was 26 permitted to find, based on plaintiff’s daily activities, that she is not as limited as she 27 asserts. 28 /// 10 d. 1 Harmless Error Finally, the ALJ discredited plaintiff because she made seemingly inconsistent 2 3 statements about her alleged depression, indicating at one time that she was depressed 4 after having denied depression. While the Court declines to expressly find that the ALJ 5 erred in this regard, it notes that the law of this circuit generally disfavors discrediting 6 claimants for reasons related to the recognition of mental impairments. See Regennitter 7 v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1299-1300 (9th Cir. 1999) (“[W]e have 8 particularly criticized the use of a lack of treatment to reject mental complaints both 9 because mental illness is notoriously underreported and because it is a questionable 10 practice to chastise one with a mental impairment for the exercise of poor judgment in 11 seeking rehabilitation.” (internal quotation marks omitted)). Nonetheless, even 12 assuming the ALJ erred by relying on plaintiff’s statements about her mental health in 13 order to discredit her claims, the error was harmless because the ALJ gave numerous 14 other reasons for discrediting plaintiff. See Batson v. Comm’r Soc. Sec. Admin., 359 15 F.3d 1190, 1197 (9th Cir. 2004) (finding that ALJ’s impermissible reason for 16 discrediting claimant was harmless in light of numerous permissible reasons provided); 17 see also Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1163 (9th Cir. 2008) 18 (holding that an ALJ’s error is harmless so long as “the error does not negate the 19 validity of the ALJ’s ultimate [credibility] conclusion” (alterations in original) (internal 20 quotation marks omitted)). 21 B. 22 Whether the ALJ Permissibly Rejected the Opinions of Plaintiff’s Physicians. Here, plaintiff asserts that the ALJ improperly rejected the opinions of three 23 treating physicians — Dr. Lou Ellen Wilson, Dr. Doris Cardenas, and Dr. Sue Chung. 24 In the Social Security context, the Ninth Circuit distinguishes among opining 25 physicians in the following manner: (1) treating physicians; (2) examining physicians; 26 and (3) nonexamining physicians. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). 27 Generally, the opinions of treating physicians are entitled to the most weight, while the 28 opinions of examining physicians are entitled to more weight than the opinions of 11 1 nonexamining physicians. Id. Where the opinion of a treating physician is 2 uncontroverted, the ALJ must provide clear and convincing reasons for rejecting that 3 opinion. Id. Even if contradicted by another doctor, the opinions of treating physicians 4 can be rejected only for “specific and legitimate reasons that are supported by 5 substantial evidence in the record.” Id. 6 7 8 9 10 11 1. Dr. Wilson and Dr. Cardenas a. Opinions Plaintiff asserts that the ALJ erred in rejecting the opinions of Dr. Wilson and Dr. Cardenas, both of whom opined that plaintiff suffers from headaches and spasms as a result of her exposure to fluorescent light. Specifically, Dr. Cardenas opined that: One condition I am following [plaintiff] for is migraines[.] Her 12 headaches are directly exacerbated by fluorescent lighting and 13 extended period[s] of time in front of a computer screen. I have 14 advised avoiding all these things at work as they will worsen [t]he 15 migraines[.] 16 17 (AR 309.) Likewise, Dr. Wilson stated that: This is in reference to my patient Ms Uribe who I have been 18 following for quite a while now, with several neurological symptoms 19 that include headaches, memory loss, vertigo, numbness, tingling 20 and fatigue. She has had multiple workup[s], [and] has tried various 21 forms of medications including alternative treatment through 22 chiropractic care. She was found to be hypersensitive to fluorescent 23 lighting with exacerbation of symptoms[,] particularly her headaches 24 and facial spasms. Ms Uribe has been referred to a neurologist, Dr. 25 Cardenas, who agrees that she should not be exposed to this lighting, 26 and in addition limit her computer use to 4 h[ou]rs a day with 10 27 minute breaks in between, approximately every h[ou]r, secondary to 28 peripheral numbness of hands and feet. In light of the chronicity 12 1 [sic] of her symptoms, we are requesting permanent work 2 accom[m]odation. 3 (AR 310.) b. 4 5 6 ALJ’s Decision The ALJ rejected the opinions of Drs. Watson and Cardenas for the following reasons: The undersigned notes that Drs. Watson and Cardenas 7 8 previously wrote letters in support of the claimant’s request for work 9 accommodations and, in so doing, indicated she had been advised to 10 avoid fluorescent lighting and prolonged computer use (Exhibit 3F/l, 11 2). However, these restrictions are given no weight because they 12 lack a clear medical basis and are not otherwise supported by any 13 objective findings (as thoroughly explained earlier in this decision). 14 15 16 (AR 25.) c. Analysis At the outset, the Court notes that aside from the letters stating plaintiff must 17 limit her exposure to fluorescent light and computer monitors (AR 309-10), Drs. 18 Wilson and Cardenas did not provide any opinions about plaintiff’s functional abilities. 19 Rather, the physicians’ “findings” (i.e. memory loss, headaches, dizziness, etc.) are 20 actually progress notes, which ALJs are not required to provide specific and legitimate 21 reasons for rejecting. See Gutierres v. Astrue, 2012 WL 58320072, at *2 (C.D. Cal. 22 Nov. 15, 2012) (finding that ALJ was not required to accept or reject progress notes 23 that plaintiff had mischaracterized as physician’s opinions). To the extent plaintiff 24 argues that the ALJ altogether failed to consider those progress notes, plaintiff’s 25 argument fails, as the ALJ discussed Dr. Wilson’s and Dr. Cardenas’ progress notes in 26 her decision. (AR 19-21, 23-24.) 27 Moreover, the ALJ was not required to include “headache[s], memory loss, 28 vertigo, numbness, tingling and fatigue” in her RFC determination simply because they 13 1 are referenced in plaintiff’s physicians’ progress reports. Rather, the ALJ was 2 permitted to rely on conflicting substantial evidence in determining that plaintiff was 3 not disabled. See Smolen, 80 F.3d at 1279; see Morgan v. Comm’r of Soc. Sec. Admin., 4 169 F.3d 595, 599 (9th Cir. 1999) (“Where the evidence is susceptible to more than one 5 rational interpretation, it is the ALJ’s conclusion that must be upheld.”). Here, the ALJ 6 declined to include those symptoms in the RFC because they were only determinable 7 from plaintiff’s discredited testimony, rather than any objective medical evidence. 8 Moreover, the ALJ also noted the reports of improvement and symptom abatement 9 discussed above. Accordingly, substantial evidence supports the ALJ’s decision to 10 leave headaches, memory loss, vertigo, numbness, tingling, and fatigue out of 11 plaintiff’s RFC. 12 Turning to the written opinions of Drs. Wilson and Cardenas, the ALJ properly 13 rejected the physicians’ conclusions that plaintiff must avoid fluorescent light and 14 prolonged exposure to computer monitors. Neither Dr. Wilson nor Dr. Cardenas 15 conclusively attributed plaintiff’s light sensitivity to any objectively determinable 16 medical impairment. Indeed, while the physicians’ treatment notes “document ongoing 17 concern” (as plaintiff puts it) that plaintiff suffers from sensitivity to fluorescent light, 18 neither set of notes refer to any laboratory findings or test results to support the 19 doctors’ opinions. Further still, neither Dr. Wilson’s nor Dr. Cardenas’ reports 20 unequivocally state that plaintiff exhibited photosensitivity. Rather, both physicians 21 simply note that plaintiff complained of photosenstivity. Accordingly, it seems that Dr. 22 Wilson and Cardenas’ opinions both lack an apparent objective basis and are 23 unsupported by the doctors’ own treatment records. Thus, the ALJ was permitted to 24 reject the opinions on those bases. See Johnson v. Shalala, 60 F.3d 1428, 1432 (9th 25 Cir. 1995) (holding that ALJ was permitted to reject physician’s opinion as “conclusory 26 and unsubstantiated by relevant medical documentation”). 27 28 Since no objective medical evidence supports the opinions of Drs. Wilson and Cardenas, the only bases for the opinions are plaintiff’s subjective complaints. 14 1 However, since the ALJ properly discredited plaintiff’s statements about her symptoms, 2 the ALJ was permitted to reject the conclusions of Dr. Wilson and Dr. Cardenas.2 3 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (holding that ALJ may 4 reject physician’s opinion that is based largely on claimant’s statements that were 5 properly discredited). 2. 6 a. 7 Opinions While Dr. Chung’s findings are not set forth in a single place, plaintiff avers that 8 9 Dr. Chung Dr. Chung found plaintiff suffers from the following symptoms: 10 bilateral ear pressure and pain, severe vertigo, twisting and turning 11 of her face and neck to the right side, cramping of her hands and feet 12 into a claw like contracted pattern, difficulty gripping and releasing 13 due to claw like cramping of her hands/fingers, difficulty arising 14 from a kneeling position at times with cramping and stiffness in her 15 right calf muscle causing difficulty relaxing or extending her leg, 16 sensitivity to light especially fluorescent light which caused 17 increasing twisting and turning of her mouth and neck to the right 18 side, progressive declination in cognitive abilities including impaired 19 memory and ability to complete tasks, slowed thought and speech, 20 /// 21 /// 22 23 24 25 26 27 28 2 Notably, the ALJ did not expressly reject the opinions of Drs. Wilson and Cardenas because they were based on plaintiff’s subjective statements. However, the ALJ’s permissible adverse credibility determination sufficiently demonstrates that she considered but rejected the opinions’ subjective bases, but at a different point in the decision. See Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989) (noting that a reviewing court is “not deprived of [its] faculties for drawing specific and legitimate inferences from the ALJ’s opinion”); see also Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (“[W]e will not fault the agency merely for explaining its decision with less than ideal clarity.” (internal quotation marks omitted)). 15 1 and impaired gait with inability to take long strides due to feeling off 2 balance. 3 (Joint Stip. 8 (citing AR 397).) b. 4 ALJ’s Decision With respect to Dr. Chun’s diagnoses, the ALJ found the following: 5 6 [T]he record shows that Dr. Chung eventually did diagnose the 7 claimant as having fibromyalgia (in or around August 2013) (Exhibit 8 12F/21). Although she described the claimant’s symptomatology as 9 “unusual” (i.e., not typical of fibromyalgia or other rheumatologic 10 condition), the undersigned accepts Dr. Chung’s eventual diagnostic 11 conclusion and finds that the claimant has fibromyalgia. The 12 undersigned further finds that this condition has significantly limited 13 the claimant’s ability to perform certain basic work activities and is 14 therefore “severe” within the meaning of the regulations. 15 (AR 19.) c. 16 Analysis Here, Dr. Chung does not appear to have provided any opinions about plaintiff’s 17 18 impairments or functional limitations; what plaintiff characterizes as Dr. Chung’s 19 opinions are actually progress notes and plaintiff’s self-reported medical history. 20 Indeed, were the Court to accept plaintiff’s contention that Dr. Chung’s progress notes 21 constitute “opinions,” substantial evidence would still support the ALJ’s decision, as 22 plaintiff also reported improvement to Dr. Chung. In any event, as was the case with 23 the progress notes of Drs. Wilson and Cardenas, the ALJ was not required to provide 24 specific and legitimate reasons for rejecting Dr. Chung’s progress notes. Therefore, the 25 ALJ did not err by simply adopting Dr. Chung’s fibromyalgia diagnosis without further 26 comment. 27 /// 28 /// 16 1 C. Whether the ALJ’s RFC Determination Is Based on Substantial Evidence. 2 As noted above, an ALJ’s decision need only be supported by substantial 3 evidence. Smolen, 80 F.3d at 1279. Additionally, “[w]here the evidence is susceptible 4 to more than one rational interpretation, it is the ALJ’s conclusion that must be 5 upheld.” See Morgan, 169 F.3d at 599. 6 Here, plaintiff contends that the ALJ was required to include the following in her 7 RFC determination: “headaches, memory loss, vertigo, numbness, tingling, fatigue and 8 hypersensitivity to fluorescent lighting causing exacerbation of headaches and facial 9 spasms.” However, plaintiff’s argument is largely just a rehashing of her prior 10 arguments, as she essentially asserts that the ALJ’s RFC determination should have 11 taken into account plaintiff’s subjective complaints and the findings of plaintiff’s 12 physicians. The Court has already provided reasons why the ALJ permissibly chose 13 not to adopt on plaintiff’s complaints and her physicians’ reports in concluding that 14 plaintiff is not disabled. Moreover, with respect to plaintiff’s purported numbness, tingling, vertigo, and 15 16 fatigue, the ALJ’s purported failure to include any of those symptoms in plaintiff’s 17 RFC was harmless. Plaintiff has wholly failed to provide any evidence that inclusion 18 of these symptoms in plaintiff’s RFC would have resulted in a further reduced range of 19 abilities. Moreover, her admitted daily activities — particularly painting and gardening 20 — seemingly indicate that plaintiff’s symptoms did not limit her ability to use her 21 hands. Finally, her vertigo appears accounted for in the RFC, as she is restricted from 22 heights and uneven terrain. The ALJ also noted that plaintiff’s memory had improved with treatment so that 23 24 she no longer needed reminders from her husband to perform daily tasks. (Compare 25 AR 396 with AR 429.) With respect to plaintiff’s purported memory loss, the ALJ also 26 relied on the opinions of Dr. Colonna, who found that plaintiff was only “mildly 27 limited” in her ability to “remember and carry out detailed instructions.” (AR 21.) 28 /// 17 1 Because the ALJ was permitted to rely on the opinions of Dr. Colonna and plaintiff’s 2 statements, she was not required to include memory loss in her RFC determination. 3 D. Whether the ALJ Properly Concluded That Plaintiff Only Suffers from Two 4 “Severe” Impairments. 5 Here, plaintiff asserts that the ALJ should have found that the following are 6 “severe” impairments: “memory loss, headaches, bilateral ear pain and fullness, fatigue, 7 abnormal facial movements and sensitivity to fluorescent light.” (Joint Stip. at 27.) 8 This argument fails. 9 At step two of the five-step sequential evaluation,3 an ALJ must determine 10 whether any of the claimant’s impairments are “severe.” 20 C.F.R. § 404.1520(a)(4)(ii). 11 As plaintiff points out, “severity” is a de minimis standard meant to prevent against 12 consideration of baseless applications. Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 13 2005). However, whether an impairment is “severe” does not further affect the ALJ’s 14 treatment of that impairment; it is simply a threshold determination. Thus, an error at 15 step two is harmless unless plaintiff can demonstrate that the ALJ would have found 16 plaintiff more limited had the ALJ labeled a specific impairment “severe.” See Aarestad 17 v. Comm’r of Soc. Sec. Admin., 450 F. App’x 603, 605 (9th Cir. 2011) (holding that any 18 error in ALJ’s omission of “chronic obstructive pulmonary disease” as severe 19 impairment was harmless because there was no evidence that the disease would affect 20 plaintiff’s ability to perform past work); see also Lewis v. Astrue, 498 F.3d 909, 911 21 (9th Cir. 2007) (holding that ALJ’s failure to label plaintiff’s bursitis severe was 22 harmless because ALJ included limitations caused by bursitis in RFC). 23 24 25 26 27 28 3 If the ALJ conclusively determines at any step that a claimant is or is not disabled, the ALJ does not proceed to the next step. Id. If the ALJ completes step five and concludes that a claimant’s limitations do not preclude work that exists in significant numbers in the national economy, the claimant is not considered disabled. 20 C.F.R. § 404.1520(a)(4)(v). At steps one through four, the burden rests with the claimant to establish disability. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At step five, the burden shifts to the Commissioner to show that the claimant is not disabled. Id. 18 1 With the exception of “bilateral ear pain and fullness,” the Court has already 2 determined that the ALJ either accounted for the symptoms listed above or 3 appropriately excluded them from the RFC. Thus, whether the ALJ impermissibly 4 failed to find that any of those impairments was severe is inconsequential; the 5 impairments would not have affected the RFC determination even if they were 6 “severe.” With respect to the ear pain and fullness, the Court is unable to discern how 7 those symptoms would have altered the ALJ’s RFC determination, particularly because 8 they appear to have affected plaintiff only sporadically.4 Thus, plaintiff’s failure to 9 demonstrate how labeling any of these symptoms “severe” would affect the outcome of 10 the ALJ’s decision renders any error in this regard harmless. CONCLUSION 11 12 For the foregoing reasons, the judgment of the Commissioner is affirmed. 13 IT IS SO ORDERED. 14 15 DATED: November 22, 2017 /S/ FREDERICK F. MUMM FREDERICK F. MUMM United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Indeed, the record seems to support a determination that plaintiff’s ear pain and fullness are non-severe, as they do not appear to have more than a minimal effect on plaintiff’s ability to work. Nonetheless, because it does not alter the ultimate decision in this case, the Court assumes that the ALJ erred by labeling those impairments “non-severe.” 19

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