Marta Mohorko v. Carolyn W. Colvin

Filing 26

MEMORANDUM AND OPINION by Magistrate Judge Gail J. Standish. It is Ordered that the decision of the Commissioner finding Plaintiff not disabled is AFFIRMED. (sp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 Case No. 2:16-CV-04933-GJS MARTA MOHORKO, 12 Plaintiff 13 v. NANCY A. BERRYHILL,1 Acting Commissioner of Social Security, 14 15 MEMORANDUM OPINION AND ORDER Defendant. 16 17 I. 18 PROCEDURAL HISTORY Plaintiff Marta Mohorko (“Plaintiff”) filed a complaint seeking review of the 19 decision of the Commissioner of Social Security (“Commissioner”) denying her 20 application for Disability Insurance Benefits (“DIB”). The parties filed consents to 21 proceed before the undersigned United States Magistrate Judge [Dkt. 22, 24] and a 22 Joint Stipulation detailing each party’s arguments [Dkt. 20 (“Joint Stip.”)]. The 23 Court has taken the parties’ arguments under submission without oral argument. 24 For the reasons discussed below, the decision of the Commissioner is affirmed. 25 /// 26 27 28 1 Nancy A. Berryhill became the Acting Commissioner of the Social Security Administration on January 23, 2017, and is hereby substituted as the defendant in this action pursuant to Federal Rule of Civil Procedure 25(d). 1 2 II. ADMINISTRATIVE DECISION UNDER REVIEW On January 17, 2012, Plaintiff filed an application for DIB, alleging disability 3 as of June 25, 2010. [Dkt. 15, Administrative Record (“AR”) 170-76.] Plaintiff’s 4 claim was denied at the initial level of review and on reconsideration. [AR 101-05, 5 107-11.] On February 14, 2014, Administrative Law Judge (“ALJ”) Marti Kirby 6 held a hearing. [AR 51-74.] On May 6, 2014, the ALJ issued a decision denying 7 Plaintiff’s request for benefits. [AR 30-43.] 8 9 Applying the five-step sequential evaluation process, the ALJ found that Plaintiff was not disabled. See 20 C.F.R. § 404.1520(b)-(g)(1). At step one, the 10 ALJ concluded that Plaintiff had not engaged in substantial gainful activity since the 11 alleged onset date. [AR 32.] At step two, the ALJ found that Plaintiff suffered from 12 the severe impairments of pseudotumor cerebri (idiopathic intracranial 13 hypertension) with alleged residual short-term memory loss and headache, and 14 status-post shunt placement surgery in January 2010. [Id.] At step three, the ALJ 15 determined that Plaintiff did not have an impairment or combination of impairments 16 that meets or medically equals the severity of one of the impairments listed in 17 Appendix I of the Regulations, (“the Listings”). [AR 36]; see 20 C.F.R. Part 404, 18 Subpart P, Appendix 1. Next, the ALJ found that Plaintiff had the residual 19 functional capacity (“RFC”) to perform work at all exertional levels, with the 20 following nonexertional limitations: 21 22 23 24 25 26 27 28 [Plaintiff] can frequently perform postural activities; she cannot climb ladders, ropes or scaffolds; she cannot work at unprotected heights, around moving machinery, or other hazards; she cannot perform jobs requiring [hypervigilance] or intense concentration on a particular task (meaning she is precluded from performing jobs where she could not be off task for even the shortest amount of time such as watching a surveillance monitor or where safety might be an issue); she cannot do jobs that require fast-paced, production, or assembly-line type work; she can have occasional non-intense interaction with 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 the general public; she is limited to unskilled work; and she will likely be off task up to 10% of the workday or work week (which is about 48 minutes a day or 4 hours a week). [AR 36.] Applying this RFC, the ALJ found that Plaintiff was unable to perform any past relevant work, but determined that based on her age (49 years old at the time of her alleged onset date), high school education, and work experience, she was capable of making a successful adjustment to other work existing in significant numbers in the national economy, including work as a dining room attendant, industrial cleaner, and laundry laborer and, thus, was not disabled. [AR 41-43.] The Appeals Council denied review of the ALJ’s decision on May 11, 2016, 2015. [AR 1-4.] Plaintiff initiated this action on July 6, 2016. [Dkt. 1.] III. Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to determine if: (1) the Commissioner’s findings are supported by substantial evidence; and (2) the Commissioner used correct legal standards. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citation and quotations omitted); see also Hoopai, 499 F.3d at 1074. IV. 21 22 23 24 25 26 27 28 GOVERNING STANDARD DISCUSSION A. Plaintiff’s Mental Impairment 1. Plaintiff’s Depression and Anxiety Were Not Severe Impairments Plaintiff contends that the ALJ erred at step two of the sequential evaluation process by failing to properly evaluate the severity of her depression and anxiety. [Joint Stip. at 5, 14-15.] At step two, the ALJ must determine whether the claimant “has a medically severe impairment or combination of impairments.” Smolen v. Chater, 80 F.3d 3 1 1273, 1290 (9th Cir. 1996); 20 C.F.R. § 404.1520(a)(4)(ii). “An impairment or 2 combination of impairments can be found ‘not severe’ only if the evidence 3 establishes a slight abnormality that has ‘no more than a minimal effect on an 4 individual[’]s ability to work.’” Smolen, 80 F.3d at 1290 (citations omitted). An 5 ALJ’s decision, however, will not be reversed for incorrectly finding an impairment 6 non-severe if the error was harmless. See Burch v. Barnhart, 400 F.3d 676, 679 (9th 7 Cir. 2005) (“A decision of the ALJ will not be reversed for errors that are harmless.” 8 (citing Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1990))). In determining whether a claimant has a medically severe mental impairment, 9 10 an ALJ is required to follow a special psychiatric review technique. 20 C.F.R. § 11 404.1520a.2 The ALJ must determine whether an applicant has a medically 12 determinable mental impairment, rate the degree of functional limitation for four 13 functional areas, determine the severity of the mental impairment, and then, if the 14 impairment is severe, proceed to step three of the disability analysis. 20 C.F.R. § 15 404.1520a; see Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 725 (9th Cir. 16 2011). The regulations specify four functional areas: activities of daily living; 17 social functioning; concentration, persistence, or pace; and episodes of 18 decompensation. 20 C.F.R. § 404.1520a(c)(3). A mental impairment is generally 19 considered not severe if the degree of limitation in the first three functional areas is 20 rated as “none” or “mild” and there have been no episodes of decompensation. 20 21 C.F.R. § 404.1520a(d)(1). 22 On May 15, 2012, Plaintiff was evaluated by psychologist Banafshe P. 23 24 25 26 27 28 2 The Social Security Administration issued revised rules for evaluating mental disorders effective January 17, 2017. See Revised Medical Criteria for Evaluating Mental Disorders, 81 Fed. Reg. 66138 (Sep. 26, 2016). The Court applies the regulations that were in effect at the time the Commissioner’s decision became final. See id. at 66178, n. 1 (“We expect that Federal courts will review our final decisions using the rules that were in effect at the time we issued the decisions); see also Wood v. Berryhill, No. 14-36064, 2017 WL 2672671, at *2, n. 1 (9th Cir. June 21, 2017). 4 1 Sharokhi, Ph.D. [AR 441-48.] Plaintiff complained of short-term memory deficits, 2 depression, anxiety and related problems. [AR 442.] Dr. Sharokhi found Plaintiff 3 to be an “unreliable historian,” as she appeared to be “highly embellishing cognitive 4 symptomatology.” [AR 442, 447.] While intelligence testing indicated that Plaintiff 5 had a full scale IQ of 67, Dr. Sharokhi noted problems with the validity of the test 6 results. [AR 446-47.] She explained that Plaintiff’s “cognitive abilities appear 7 higher than shown on psychometric testing” and her “extremely inconsistent effort, 8 low motivation, carelessness, and impulsivity affected testing results.” [AR 446.] 9 Dr. Sharokhi cautioned that Plaintiff’s “test results should be interpreted with these 10 caveats in mind.” [AR 446.] Dr. Sharokhi further noted that Plaintiff’s evaluation 11 as well as her medical records revealed no significant memory deficits or cognitive 12 disorders and that a diagnosis of mild mental retardation was not probable. [AR 13 442, 447.] As for Plaintiff’s complaints of depression and anxiety, Dr. Sharokhi 14 noted that Plaintiff was not taking any psychiatric medications and had never 15 received psychiatric treatment, counseling or hospitalization for a psychiatric 16 condition. [AR 442.] Dr. Sharokhi concluded that Plaintiff met the diagnostic 17 criteria for depressive disorder, not otherwise specified, appeared to be functioning 18 intellectually in the borderline to low average intellectual range, and presented with 19 overall mild limitations. [AR 444, 447-48.] Dr. Sharokhi assessed Plaintiff with a 20 global assessment of functioning (“GAF”) score of 60 and “mild” limitations in the 21 ability to understand, remember and carry out detailed instructions, maintain 22 attention and concentration, and maintain persistence and pace. [AR 447-48.] Dr. 23 Sharokhi found that Plaintiff had no limitations understanding, remembering and 24 carrying out short, simple instructions, accepting instructions from supervisors, 25 performing simple work-related tasks without additional supervision, maintaining 26 day-to-day activities, including attendance and safety, and interacting appropriately 27 with supervisors, coworkers, and peers. [AR 448.] 28 On June 6, 2012, a State agency medical consultant, Dr. Michael Keer, noted 5 1 that Plaintiff had a history of complaining of memory problems and depressed 2 mood, but concluded that her mental impairment (affective disorders) was not 3 severe. [AR 80-81.] Dr. Keer opined that Plaintiff’s reported full scale IQ score of 4 67 was “not valid,” as the consultative psychological examiner (Dr. Sharokhi) found 5 that Plaintiff had not put forth full effort in testing at her psychological evaluation 6 and appeared to be highly embellishing cognitive symptomatology. [AR 82.] On 7 January 8, 2013, a second State agency medical consultant, Dr. H. Amado, also 8 found Plaintiff’s mental impairment was not severe. [AR 96-97.] 9 In the decision, the ALJ found that Plaintiff’s alleged residual short-term 10 memory loss was a severe impairment, but her “medically determinable mental 11 impairments of depression and anxiety, considered singly and in combination, [did] 12 not cause more than a minimal limitation in [her] ability to perform basic mental 13 work activities and [were] therefore nonsevere.” [AR 32, 34.] The ALJ gave “great 14 weight” to the opinions of Dr. Sharokhi and the State agency mental consultants, 15 whose opinions supported the step two determination. [AR 35.] 16 In assessing Plaintiff’s functional limitations in the four areas known as the 17 “paragraph B” criteria, the ALJ found Plaintiff had only “mild” limitations in the 18 areas of activities of daily living, social functioning, and concentration, persistence 19 or pace, and “no episodes” of decompensation of extended duration. [AR 34.] In 20 support of these findings, the ALJ noted that Plaintiff admitted she was able to 21 perform a variety of daily activities, such as maintaining her personal hygiene, 22 preparing complex meals, driving, gardening, reading, and shopping. [AR 34-35, 23 443-44.] Plaintiff demonstrated strong social capacity, as she reported good to 24 excellent relationships with her family and friends and engaged in activities 25 including going to church, barbequing, going to the beach with her family, and 26 shopping with friends. [AR 34-35, 37, 443.] Plaintiff admitted hobbies such as 27 sewing and reading, which demonstrated only mild limitations in maintaining 28 concentration, persistence, and pace. [AR 34-35, 37, 443, 447.] Finally, there was 6 1 no evidence of decompensation recorded. [AR 34]; see 20 C.F.R. Pt. 404, Subpt. P, 2 App. 1, 12.00C. 3 Plaintiff contends the ALJ erred by failing to adequately account for evidence 4 from Plaintiff’s treating providers that “reinforced the likelihood she was suffering 5 from depression.” [Joint Stip. at 5.] Plaintiff asserts that her treating providers 6 reported she was suffering from depression and anxiety that was associated with her 7 short-term memory loss and difficulty concentrating. [Joint Stip. at 14 (citing AR 8 49, 806, 808, 815).] However, a mere diagnosis does not establish a severe 9 impairment. See Febach v. Colvin, 580 F. App’x 530, 531 (9th Cir. 2014) 10 (“Although [claimant] was diagnosed with depression, that diagnosis alone is 11 insufficient for finding a ‘severe’ impairment, as required by the social security 12 regulations.” ). Further, none of the medical records contradicted Dr. Sharokhi’s or 13 the State agency physicians’ opinions that Plaintiff had no more than “mild mental 14 limitations.” [AR 35.] There was also no evidence Plaintiff received treatment 15 from a mental health professional and Plaintiff’s October 2013 mental status 16 examination showed Plaintiff exhibited good mood and affect, intact memory, and 17 good judgment and insight. [AR 34-35, 797.] Thus, the medical record supports the 18 ALJ’s determination that Plaintiff’s medically determinable impairments of 19 depression and anxiety did not significantly affect her ability to work. [AR 34-35]; 20 see 20 C.F.R. § 404.1520(c). 21 Moreover, any error in assessing the severity of Plaintiff’s mental 22 impairments was harmless because the ALJ incorporated limitations associated with 23 Plaintiff’s medically determinable mental impairments in Plaintiff’s RFC. See 24 Burch, 400 F.3d at 679; Curry, 925 F.2d at 1131. The ALJ found that Plaintiff was 25 limited to unskilled work, was likely to be off task up to 10 percent of the workday 26 or workweek, and was unable to perform jobs requiring any of the following: 27 hypervigilance or intense concentration on a particular task; fast-paced, production 28 or assembly-line type work; and work involving more than occasional non-intense 7 1 interaction with the general public. [AR 36.] Greater functional limitations were 2 not substantiated by the medical evidence. Accordingly, the ALJ did not commit 3 reversible error by finding that Plaintiff’s depression and anxiety were not severe 4 impairments. 5 6 2. Additional Consultative Examination Not Required Plaintiff asserts that a second psychological consultative examination should 7 be ordered because Dr. Sharokhi did not definitively state whether Plaintiff had been 8 malingering or that Plaintiff’s intelligence test results were invalid. [Joint Stip. at 5- 9 6, 15.] The Court disagrees. 10 The ALJ has an independent duty to develop the record, even when the 11 claimant is represented by counsel. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th 12 Cir. 2001) (citing Smolen, 80 F.3d at 1288). However, it is the claimant’s duty to 13 prove that she is disabled. Mayes v. Massanari, 276 F.3d 453, 458 (9th Cir. 2001); 14 42 U.S.C. § 423(d)(5)(A) (“An individual shall not be considered to be under a 15 disability unless he furnishes such medical and other evidence of the existence 16 thereof as the Commissioner of Social Security may require.”). An ALJ’s duty to 17 develop the record further is triggered only when there is ambiguous evidence or 18 when the record is inadequate to allow for proper evaluation of the evidence. 19 Mayes, 276 F.3d at 459-60 (citing Tonapetyan, 242 F.3d at 1150). 20 Here, the ALJ’s duty was not triggered because the record was not ambiguous 21 or inadequate. As discussed, Dr. Sharokhi found that Plaintiff was an unreliable 22 historian and her test results had been impacted by her extremely inconsistent effort, 23 low motivation, carelessness, and impulsivity. [AR 442, 446-47.] Dr. Sharokhi also 24 found that Plaintiff appeared to be “highly embellishing” her cognitive 25 symptomatology, given her presentation at the evaluation, admitted level of 26 functioning, and lack of mental health treatment. [AR 442, 447.] Thus, any 27 inconsistencies in Plaintiff’s test results were caused by Plaintiff’s own failure to 28 comply with the consultative examination. While Dr. Sharokhi did not expressly 8 1 state that Plaintiff was malingering or find her test results invalid, there was no 2 actual ambiguity of the kind that would require further development of the record. 3 Indeed, the State agency medical consultant who reviewed Plaintiff’s case on 4 reconsideration stated that an updated psychological examination was not warranted. 5 [AR 97.] Thus, the ALJ had no obligation to further develop the record. 3. Listings 12.02 and 12.05C 6 Plaintiff argues that the ALJ erred by failing to address Listing 12.02 for 7 8 organic mental disorders and Listing 12.05C for intellectual disability. [Joint Stip. 9 at 15.] Plaintiff asserts that these listings “potentially applied,” in light of her full 10 scale IQ score of 67 and other impairments. [Joint Stip. at 5-6, 15.] Plaintiff, 11 however, submitted a pre-hearing brief to the ALJ acknowledging that she did not 12 meet or equal a listed impairment. [AR 168.] Further, Plaintiff has failed to present 13 any valid theory as to how her impairments met or equaled Listing 12.02 or Listing 14 12.05C.3 15 To meet Listing 12.02, a claimant must have an organic mental disorder that 16 satisfies the requirements of paragraphs A and B or paragraph C. 20 C.F.R. Pt. 404, 17 Subpt. P, App. 1 § 12.02. Paragraph A requires that a claimant show “a loss of 18 specific cognitive abilities or affective changes” and paragraph B requires a showing 19 of at least two of the following: (1) marked restriction of activities of daily living; 20 (2) marked difficulties in maintaining social functioning; (3) marked difficulties in 21 maintaining concsentration, persistent or pace; or (4) repeated episodes of 22 decompensation, each of extended duration. Id. Alternatively, a claimant may meet 23 Listing 12.02 by satisfying the paragraph C criteria and demonstrating a medically 24 documented history of a mental disorder (at least two years in duration) that has 25 26 27 28 3 Revised versions of the Listing 12.02 and Listing 12.05 went into effect on January 17, 2017. See 81 Fed. Reg. at 66,139-40, 66148-49. The Court applies the listings that were in effect at the time the Commissioner’s decision became final. See 81 Fed. Reg. at 66,178, n. 1; see also Wood, 2017 WL 2672671, at *2, n. 1. 9 1 more than minimally limited the claimant’s ability to do basic work activities and 2 one of the following: (1) repeated episodes of decompensation, each of extended 3 duration; (2) a residual disease process that results in decompensation with even a 4 minimal increase in mental demands or change in the environment; or (3) current 5 history of at least one year of inability to function outside a highly supportive living 6 arrangement. Id. 7 Here, Plaintiff has offered no theory, plausible or otherwise, as to how her 8 impairments meet or equal Listing 12.02. While Plaintiff asserts that she has a full 9 scale IQ score of 67, was status-post pseudotumor cerebri with shunt placement and 10 revision in 2010, and has short-term memory and concentration problems, she fails 11 to point to any medical evidence establishing that her impairments, either alone or in 12 combination, meet or equal, the criteria in paragraphs B or C of Listing 12.02. [See 13 AR 34-35.] Therefore, the ALJ did not err by failing to find that Plaintiff’s 14 impairments satisfied Listing 12.02. 15 Likewise, Plaintiff has not shown that her impairments met or equaled the 16 requirements of Listing12.05C. The introductory paragraph to Listing 12.05 17 requires a claimant to show deficits in adaptive functioning before the age of 22. 20 18 C.F.R. § 404, subpt. P, app. 1, § 12.05. This requirement is in addition to those 19 relating to intellectual functioning. 20 C.F.R. § 404, Subpt. P, App. 1, § 12.00 20 (stating that in order for a claimant to meet Listing 12.05, she must “satisf[y] the 21 diagnostic description in the introductory paragraph and any one of the four sets of 22 criteria”). Although Plaintiff may have a qualifying full scale IQ score, she does not 23 satisfy the introductory paragraph with evidence of deficits in adaptive functioning 24 before the age of 22. Rather, Plaintiff alleges onset of memory and cognitive 25 difficulties beginning in 2010 when she was 49 years old. [AR 42, 55, 170, 201.] 26 Plaintiff also acknowledges that she is a high school graduate, was not in special 27 education classes, maintained regular employment, and “may have had a higher IQ 28 at some point.” [Joint Stip. at 6; AR 54-55, 192.] Thus, the ALJ did not err by 10 1 failing to find that Plaintiff’s impairments satisfied the requirements of Listing 2 12.05C. 3 4 5 6 7 8 9 B. Plaintiff’s Subjective Symptom Testimony and Third-Party Statements 1. Plaintiff’s Credibility Plaintiff contends that the ALJ failed to state sufficient reasons for discounting her credibility. [Joint. Stip. at 16-17.] If a claimant produces objective medical evidence of an underlying impairment that could reasonably be expected to produce the symptoms alleged and 10 there is no affirmative evidence of malingering, the ALJ must offer “clear and 11 convincing” reasons to reject the claimant’s testimony. Smolen, 80 F.3d at 1281-82; 12 see also Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (“Unless there is 13 affirmative evidence showing that the claimant is malingering, the Commissioner's 14 reasons for rejecting the claimant’s testimony must be ‘clear and convincing.’” 15 (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). Moreover, “[t]he ALJ 16 must state specifically which symptom testimony is not credible and what facts in 17 the record lead to that conclusion.” Smolen, 80 F.3d at 1284; Holohan v. 18 Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (the ALJ must “specifically identify 19 the testimony [the ALJ] finds not to be credible and must explain what evidence 20 undermines the testimony”); Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 21 1991). In addition to the “ordinary techniques of credibility evaluation,” Bunnell, 22 947 F.2d at 346, the following factors may be considered in assessing credibility: 23 (1) the claimant’s reputation for truthfulness; (2) inconsistencies in the claimant’s 24 testimony or between his testimony and conduct; (3) claimant’s daily living 25 activities; (4) claimant’s work record; and (5) testimony from physicians or third 26 parties concerning the nature, severity, and effect of claimant’s condition. Thomas 27 v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). 28 At the administrative hearing, Plaintiff testified that she suffers symptoms 11 1 relating to her pseudotumor cerebri and shunt treatment, such as headaches, short- 2 term memory loss, and difficulty focusing. [AR 55-57, 62.] Plaintiff also claimed 3 that she experiences depression, anxiety, and vision problems. [AR 201, 226, 240.] 4 The ALJ found that although Plaintiff’s medically determinable impairments 5 could reasonably be expected to cause some of Plaintiff’s alleged symptoms, 6 Plaintiff’s allegations concerning the intensity, persistence, and limiting effects of 7 her symptoms were not credible to the extent alleged. [AR 39.] The ALJ offered 8 legally sufficient reasons to support this adverse credibility determination. 9 First, the ALJ found that Plaintiff received treatment that was “routine and 10 conservative in nature, primarily in the form of medications.” [AR 38, 41.] An ALJ 11 may properly rely on the fact that only routine or conservative treatment has been 12 prescribed. Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995); Meanel v. 13 Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (finding that plaintiff’s claim that she 14 experienced pain “approaching the highest level imaginable was inconsistent with 15 the ‘minimal, conservative treatment’ that she received”). The ALJ noted that the 16 medical evidence showed good improvement in Plaintiff’s symptoms of headaches 17 and blurry vision with minimal treatment after Plaintiff underwent successful shunt 18 surgery with revision in 2010 to treat her pseudotumor cerebri. [AR 41.] In 19 February 2010, Plaintiff’s physician reported that she was doing “remarkably well” 20 and her papilledema (swelling of optic nerve caused by increased pressure in or 21 around the brain) was “completely gone.” [AR 40, 554.] In September 2010, 22 Plaintiff’s shunt was adjusted due to complaints of headaches. [AR 40, 550.] In 23 March 2011, Plaintiff reported that she had not been suffering from headaches or 24 pressure sensations related to her pseudotumor cerebri. [AR 40, 308.] In November 25 2011 and February 2012, Plaintiff was treated conservatively with medications for 26 complaints such as dizziness, headaches, and nausea. [AR 40, 422, 423-24, 427, 27 439-40, 695-97.] In May 2012, findings from a consultative neurological evaluation 28 were unremarkable and Plaintiff’s vision with glasses was 20/30 in both eyes. [AR 12 1 40, 451-52.] In June 2012, Plaintiff admitted that her headaches were not a concern 2 for her. [AR 40, 500.] In September 2013, Plaintiff was treated with pain 3 medication for complaints of headaches. [AR 791, 793.] By November 2013, 4 Plaintiff reported feeling well with no additional headaches. [AR 41, 798.] Further, 5 as discussed above, the ALJ found that although Plaintiff complained of anxiety and 6 depression, the record contains no evidence of treatment from a mental health 7 professional. [AR 35.] While Plaintiff alleges she experienced a lapse in health 8 insurance, Plaintiff admits that she was able to obtain medical services through the 9 county. [Joint Stip. at 17, 27; AR 63.] Accordingly, Plaintiff’s relatively routine 10 and conservative treatment was a specific, clear and convincing reason to discount 11 Plaintiff’s credibility. 12 Second, the ALJ found that evidence “indicat[es] that [Plaintiff] may be 13 attempting to portray limitations that are not actually present in order to increase her 14 chance of obtaining benefits.” [AR 38.] The ALJ discussed Dr. Sharokhi’s findings 15 that Plaintiff’s “cognitive abilities appeared higher than shown on psychometric 16 testing.” [AR 38, 446.] The ALJ also noted that although Plaintiff alleged cognitive 17 difficulties, Plaintiff’s “mental status examinations and neurological evaluations did 18 not indicate any serious limitations” and Plaintiff “failed to mention cognitive issues 19 to her treating doctor on several occasions.” [AR 38, 40-41, 444-45, 449-53, 501.] 20 Plaintiff argues that the ALJ did not actually find that Plaintiff was malingering or 21 intentionally exaggerating. [Joint Stip. at 17.] Plaintiff also notes that Dr. Sharokhi 22 did not have access to all of Plaintiff’s medical records. [Joint Stip. at 26.] 23 Nevertheless, the ALJ reasonably inferred from the medical evidence that Plaintiff 24 may have exaggerated her symptoms and limitations. [AR 38 (“There is some 25 reference in the record, i.e., statements by [Dr. Sharokhi] suggesting that [Plaintiff] 26 was engaging in possible malingering or misrepresentation.”); see also AR 34, 442, 27 446-47.] This was a specific, clear, and convincing reason for discounting 28 Plaintiff’s subjective complaints. Tonapetyan, 242 F.3d at 1148 (ALJ properly 13 1 found that the claimant’s “tendency to exaggerate” was a factor supporting the 2 determination that she was not credible). 3 Third, the ALJ properly observed that Plaintiff’s ability to participate in a 4 variety of daily activities “diminishes the credibility of [Plaintiff’s] allegations of 5 functional limitations.” [AR 38]; see Bunnell, 947 F.2d at 346 (An ALJ may 6 consider a claimant’s daily activities when weighing credibility); Burch, 400 F.3d at 7 680 (upholding ALJ’s rejection of a claimant’s credibility based on the claimant’s 8 daily activities of cooking, cleaning, shopping, interacting with others and managing 9 her own finances and those of her nephew); Molina v. Astrue, 674 F.3d 1104, 1113 10 (9th Cir. 2012) (“[e]ven where [daily] activities suggest some difficulty functioning, 11 they may be grounds for discrediting [the claimant’s] testimony to the extent that 12 they contradict claims of a totally debilitating impairment.”). Plaintiff claimed she 13 is unable to perform even unskilled work that does not involve stress or interaction 14 with the public due to problems focusing and concentrating. [AR 62.] She also 15 alleged difficulty completing tasks and understanding instructions. [AR 225.] The 16 ALJ reasonably found Plaintiff’s reports of extreme limitations in functioning not 17 credible in light of Plaintiff’s admissions that she could complete basic household 18 chores, grocery shop, sew, drive, prepare complex meals, pay bills, read, wash 19 dishes, garden, and engage in social activities including barbequing, going to the 20 beach with her family, shopping with friends, attending church, and visiting with her 21 daughter. [AR 34-35, 37-38, 222-24, 443, 447.] Plaintiff’s daughter also reported 22 that Plaintiff retained the ability to engage in a number of activities. [AR 39, 231- 23 33.] Such inconsistencies between Plaintiff’s reported daily activities and her 24 claimed limitations was a specific, clear and convincing reason supporting the 25 rejection of her credibility. See, e.g., Burch, 400 F.3d at 680-81; Molina, 674 F.3d 26 at 1113. 27 28 Finally, the ALJ found that the record contains no restrictions recommended by a treating source indicating that Plaintiff has any limitations greater than those 14 1 assessed in Plaintiff’s RFC. [AR 38.] Plaintiff points to nothing in the record 2 showing otherwise. Thus, this was a specific, clear and convincing reason to 3 discount Plaintiff’s credibility. See Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 4 1993) (the ALJ properly discounted the claimant’s allegations where no doctor 5 “expressed the opinion that [the claimant] was totally disabled” or implied that he 6 “was precluded from all work activity”). 7 Plaintiff also asserts that the ALJ improperly relied on a lack of objective 8 evidence, Plaintiff’s receipt of unemployment benefits, and the infrequency of 9 treatment in rejecting her subjective symptom testimony. [Joint Stip. at 17, 27.] 10 However, because the Court has already determined that the ALJ provided specific, 11 clear and convincing reasons for discounting Plaintiff’s subjective complaints, it 12 need not determine whether the ALJ erred in considering these other reasons for 13 discrediting Plaintiff’s testimony. See Carmickle, 533 F.3d at 1162-63 (finding an 14 error by the ALJ with respect to one or more factors in a credibility determination 15 may be harmless if the ALJ’s “remaining reasoning and ultimate credibility 16 determination were adequately supported by substantial evidence in the record”). 17 Accordingly, the Court concludes that reversal is not warranted based on the ALJ’s 18 alleged failure to properly consider Plaintiff’s credibility. 19 20 2. Third-Party Statements Plaintiff contends that the ALJ erred by failing to address the lay witness 21 statements of her daughter, Jade Ortiz, and her husband, Edgar Mohorko. [Joint 22 Stip. at 18.] Remand is not warranted on this basis. 23 “[C]ompetent lay witness testimony ‘cannot be disregarded without 24 comment’” and “in order to discount competent lay witness testimony, the ALJ 25 ‘must give reasons that are germane to each witness.’” Molina, 674 F.3d at 1114 26 (quoting Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) and Dodrill v. 27 Shalala, 12 F.3d 915, 919 (9th Cir. 1993)). However, an ALJ’s failure to address a 28 lay witness’s testimony is harmless if it is “‘inconsequential to the ultimate 15 1 nondisability determination’ in the context of the record as a whole.” Molina, 674 2 F.3d at 1122 (citations omitted); see Carmickle, 533 F.3d at 1162. 3 Ortiz submitted a third-party function report dated December 31, 2012, and a 4 letter to Plaintiff’s attorney dated February 13, 2014. [AR 229-37, 260.] In the 5 function report, Ortiz described Plaintiff’s daily and social activities, but noted that 6 Plaintiff became easily stressed and frustrated, suffered from headaches, and had 7 problems with memory, concentration, and sleep. [AR 229-36.] In her letter, Ortiz 8 described Plaintiff’s problems with her mood, memory, fatigue, and ability to 9 perform certain activities. [AR 260.] 10 Edgar Mohorko also wrote a letter to Plaintiff’s attorney on February 13, 11 2014. [AR 261.] He described Plaintiff’s problems with her short-term memory 12 after she was diagnosed with pseudotumor cerebri. [AR 261.] 13 In the decision, the ALJ considered the third-party function report provided 14 by Ortiz. [AR 37, 39.] The ALJ found Ortiz’s statement not credible to the extent it 15 was inconsistent with the ALJ’s findings and evidence in the record. [AR 39.] The 16 ALJ noted, among other reasons, that Ortiz’s reports of Plaintiff’s cognitive issues 17 was inconsistent with the clinical and diagnostic medical evidence. [AR 39.] This 18 was a germane reason for discounting Ortiz’s statement. See Bayliss v. Barnhart, 19 427 F.3d 1211, 1218 (9th Cir. 2005) (“[i]nconsistency with medical evidence” is 20 germane reason for discounting lay opinion). The ALJ also noted that Ortiz was 21 simply “parroting” Plaintiff’s subjective complaints, which were inconsistent with 22 Plaintiff’s “ability to engage in a number of daily activities.” [AR 39.] This was 23 also a germane reason for discounting Ortiz’s third-party function report. See, e.g., 24 Valentine v. Comm’r of the Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (“In 25 light of our conclusion that the ALJ provided clear and convincing reasons for 26 rejecting [the claimant’s] own subjective complaints, and because [the claimant’s] 27 testimony was similar to such complaints, it follows that the ALJ also gave germane 28 reasons for rejecting her testimony”). Thus, the ALJ’s rejection of Ortiz’s third16 1 2 party function report is supported by substantial evidence and was not error. Although the ALJ failed to address the letters from Ortiz and Edgar Mohorko, 3 the error was harmless. [AR 260-61.] As discussed above, the ALJ incorporated 4 Plaintiff’s limitations associated with her short-term memory and other medically 5 determinable mental impairments into her RFC. [AR 36]; see Curry, 925 F.2d at 6 1131; Molina, 674 F.3d at 1115. While Ortiz also described limitations related to 7 Plaintiff’s sleep and mood in her letter, those statements were similar to her 8 statements in her third-party function report, which the ALJ found unpersuasive in 9 light of Plaintiff’s daily activities and lack of supporting medical evidence. 10 Accordingly, to the extent the ALJ may have failed to consider lay witness 11 evidence, the error was “inconsequential to the ultimate nondisability 12 determination.” Molina, 674 F.3d at 1115. 13 14 C. The ALJ Properly Determined that Plaintiff was Able to Adjust to Other Work 15 Plaintiff contends that the ALJ erred in finding that she was capable of 16 performing alternative work at step five of the sequential evaluation process, as her 17 RFC precludes the jobs that the vocational expert (“VE”) identified at the 18 administrative hearing. [Joint Stip. at 28-29, 33-35.] 19 At step five, the Commissioner has the burden of establishing that the 20 claimant can perform alternative jobs that exist in substantial numbers in the 21 national economy. Bruton v. Massanari, 268 F.3d 824, 827 n.1 (9th Cir. 2001). 22 “Where the testimony of a VE is used at step five, the VE must identify a specific 23 job or jobs in the national economy having requirements that the claimant’s physical 24 and mental abilities and vocational qualifications would satisfy.” Osenbrock v. 25 Apfel, 240 F.3d 1157, 1162-1163 (9th Cir. 2001). An ALJ may not rely on a VE’s 26 testimony regarding the requirements of a particular job without first inquiring 27 whether that testimony conflicts with the Dictionary of Occupational Titles 28 (“DOT”). Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007). If an apparent 17 1 conflict exists, the ALJ must obtain an explanation for it, determine whether the 2 VE’s explanation is reasonable, decide whether a basis exists for relying on the VE 3 rather than on the DOT, and explain how he or she resolved the conflict. Massachi, 4 486 F.3d at 1152-1153; see Social Security Ruling 00-4p. 5 At the hearing, the ALJ asked the VE to consider a hypothetical individual 6 with Plaintiff’s age, education, background, and RFC. [AR 70-72.] The VE 7 identified three examples of unskilled jobs that could be performed: dining room 8 attendant (DOT 311.677-018), industrial cleaner (DOT 381.687-018), and laundry 9 laborer (DOT 361.687-018). [AR 71-72.] The ALJ then inquired whether the 10 dining room attendant position could be performed with Plaintiff’s restriction to 11 “occasional non-intense interaction with the general public.” [AR 71.] The VE 12 responded that the dining room attendant job could be performed because it is 13 similar to a “bus person” job. [AR 71.] In a second hypothetical question, the ALJ 14 asked the VE to consider the additional limitation that the individual would be “off 15 task up to 10 percent of the workday or workweek . . . about 48 minutes a day or 16 four hours a week . . . due to psychological symptoms or side-[effects] from 17 medication.” [AR 72.] The VE responded that the same three jobs could be 18 performed. [AR 72.] The VE affirmed that his testimony in response to the first 19 hypothetical was consistent with the DOT, but he integrated his “knowledge and 20 experience” into his response to the second hypothetical, as the DOT “does not 21 specify hypervigilance or fast paced work.” [AR 73.] Based on the VE’s testimony, 22 the ALJ concluded that Plaintiff retained the ability to perform jobs existing in 23 significant numbers in the national economy. [AR 42-43.] 1. Dining Room Attendant (Bus Person) 24 25 26 27 28 The DOT describes the duties of a dining room attendant (bus person) as follows: Performs any combination of following duties to facilitate food service: Carries dirty dishes from dining room to kitchen. Wipes 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 table tops and chairs, using damp cloth. Replaces soiled table linens and sets tables with silverware and glassware. Replenishes supply of clean linens, silverware, glassware, and dishes in dining room. Supplies service bar with food, such as soups, salads, and desserts. Serves ice water and butter to patrons. Cleans and polishes glass shelves and doors of service bars and equipment, such as coffee urns and cream and milk dispensers. Makes coffee and fills fruit juice dispensers. May sweep and mop floors. May transfer food and dishes between floors of establishment, using dumbwaiter, and be designated Dumbwaiter Operator (hotel & rest.). May run errands and deliver food orders to offices and be designated Runner (hotel & rest.). May be designated according to type of activity or area of work as Clean-Up Helper, Banquet (hotel & rest.); Counter Dish Carrier (hotel & rest.); Dish Carrier (hotel & rest.); Glass Washer And Carrier (hotel & rest.); Room Service Assistant (hotel & rest.); Steamtable Worker (hotel & rest.); Table Setter (hotel & rest.); Water Server (hotel & rest.). DOT 311.677-018 (emphasis added). Plaintiff contends that she cannot perform the job of dining room attendant because it requires more interaction with the public than contemplated by her RFC. [Joint Stip. at 28, 33.] Plaintiff, however, has failed to show that the job of dining room attendant requires more than occasional non-intense interaction with the public. [AR 36.] While Plaintiff notes that the DOT provides that a dining room attendant job involves “[s]erv[ing] ice water and butter to patrons,” the DOT classifies the level of contact with “people,” as “not significant.” DOT 311.677018. In addition, the VE expressly stated that the job involves bussing tables, which does not conflict with Plaintiff’s limitation in dealing with the public. [AR 71.] Plaintiff further contends that the job of dining room attendant is precluded because she is unable to use dangerous, moving machinery. [Joint Stip. at 28.] The DOT, however, states that the dining room attendant job does not involve the use of “moving mech[anical] parts.” DOT 311.677-018. While Plaintiff notes that the 28 19 1 DOT indicates that the dining room attendant “[m]ay transfer food and dishes 2 between floors of establishment, using [a] dumbwaiter,” Plaintiff offers no evidence 3 or argument that use of a dumbwaiter involves exposure to dangerous or moving 4 machinery. But even if it did, the DOT description of the dining room attendant job 5 does not require that an employee be able to perform all of the listed duties of the 6 job, but rather “any combination” of them. DOT 311.677-018; see, e.g., Dumble v. 7 Astrue, No. EDCV 11-266-OP, 2011 WL 4502086, at *6 (C.D. Cal. Sept. 28, 2011) 8 (“although the job description states that a hand packager performs ‘any 9 combination’ of the tasks listed in the DOT, it does not state that a worker is 10 required to perform all of them”). Additionally, the DOT states that a dining room 11 attendant “may” be required to perform the tasks of transferring “food and dishes 12 between floors of establishment, using [a] dumbwaiter.” DOT 311.677-018. The 13 permissive “may” language in the job description means that only some 14 establishments will require that job function, but not others. DOT, Parts of the 15 Occupational Definition, § 5(c), 1991 WL 645965; see also Lair v. Colvin, EDCV 16 12-932-SP, 2013 WL 1247708, at *5 (C.D. Cal. Mar. 25, 2013). Thus, there was no 17 conflict between the DOT and the VE’s testimony that someone with Plaintiff’ 18 limitations can perform the job of dining room attendant. 19 20 2. Laundry Laborer and Industrial Cleaner Plaintiff contends that the jobs of laundry laborer and industrial cleaner are 21 precluded because her RFC limits her ability to climb and work around moving 22 machinery or other hazards. [Joint Stip. at 28-29, 34-35.] She contends that the 23 industrial cleaner job may require climbing and the use of conveyor belts, industrial 24 trucks, and pumps. [Joint Stip. at 28, 34.] Plaintiff asserts the laundry laborer job 25 requires use of machines and equipment such as conveyor belts, power hoists, 26 industrial trucks, elevators, winches, and handtrucks. [Joint Stip. at 28-29, 34-35.] 27 It is unnecessary to determine whether the industrial cleaner and laundry laborer 28 jobs require the type of climbing and use of moving machinery or hazards that is 20 1 precluded by Plaintiff’s RFC. As discussed above, the ALJ did not err in finding 2 Plaintiff could perform the job of dining room attendant, and Plaintiff’s ability to 3 perform that job is sufficient to support the ALJ’s step-five finding.4 [AR 42-43, 4 72.] Thus, even if the ALJ erred in finding Plaintiff could do the jobs of industrial 5 cleaner and laundry laborer, the error was harmless. See Carmickle, 533 F.3d at 6 1162; see also Gallo v. Comm’r of Soc. Sec. Admin., 449 F. App’x 648, 650 (9th 7 Cir. 2011) (holding that “[b]ecause the ALJ satisfied his burden at Step 5 by relying 8 on the VE’s testimony about the [a]ddresser job, any error that the ALJ may have 9 committed by relying on the testimony about the ‘credit checker’ job was 10 harmless.”). 11 3. Plaintiff’s RFC and Time Off Task 12 Plaintiff challenges the ALJ’s RFC assessment as “contrary to the general 13 conventions regarding unskilled work.” [Joint Stip. at 29.] Plaintiff asserts, “[v]ery 14 few unskilled jobs would likely permit a claimant to miss up to four hours of work 15 per week.” [Joint Stip. at 29.] The court rejects Plaintiff’s argument that the RFC is 16 inconsistent with the demands of unskilled work. Contrary to Plaintiff’s contention, 17 the ALJ did not find that Plaintiff would “miss” up to four hours of work per week. 18 Rather, the ALJ found that Plaintiff would likely be “off task up to 10% of the 19 workday or workweek.” [AR 36.] Plaintiff improperly attempts to conflate the 20 separate issues of time off task that would be permitted during a workweek and the 21 number of hours per week that Plaintiff would miss or be absent from work. As the 22 VE testified that the unskilled job of dining room attendant would accommodate 23 Plaintiff being off task up to 10 percent of the time during a workday or workweek, 24 Plaintiff fails to demonstrate reversible error. [AR 72-73]; see Buckner-Larkin v. 25 Astrue, 450 F. App’x 626, 628-29 (9th Cir. 2011) (finding VE’s testimony, which 26 was based on his own labor market surveys, research and experience, addressed and 27 4 28 The VE testified that there were approximately 130,000 dining room attendant jobs existing nationally. [AR 72.] 21 1 explained any conflict with the DOT regarding sit-stand option). 2 3 4 CONCLUSION For all of the foregoing reasons, IT IS ORDERED that the decision of the Commissioner finding Plaintiff not disabled is AFFIRMED. 5 6 7 8 DATED: July 10, 2017 ____________________________________ GAIL J. STANDISH UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22

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