Rose Mary Miranda v. Carolyn W. Colvin

Filing 25

MEMORANDUM DECISION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the Commissioner's decision, DENYING Plaintiff's motion for summary judgment, GRANTING Defendant's motion for summary judgment, and DISMISSING this action with prejudice. (See Order for details) 15 , 11 , 16 , 13 (bem)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ROSE MARY MIRANDA, Plaintiff, 12 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 Defendant. ) Case No. CV 17-7616-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) AFFIRMING COMMISSIONER ) ) ) ) ) ) ) 17 18 I. PROCEEDINGS 19 Plaintiff seeks review of the Commissioner’s final decision 20 denying her application for Social Security disability insurance 21 benefits (“DIB”). 22 the undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). 23 The matter is before the Court on the parties’ cross-motions for 24 summary judgment. 25 submission without oral argument. 26 the Commissioner’s decision is affirmed. The parties consented to the jurisdiction of The Court has taken both motions under 27 28 1 For the reasons stated below, 1 2 II. BACKGROUND Plaintiff was born in 1960. (Administrative Record (“AR”) 3 60, 75.) 4 shipping and receiving clerk and restaurant shift leader (AR 52, 5 72, 188). 6 She completed 10th grade (AR 69, 188) and worked as a On September 6, 2013, Plaintiff applied for DIB, alleging 7 that she had been unable to work since April 7, 2009, because of 8 “bulged disk #2 [and] #5,” “fractured tailbone,” “back pain due 9 to back injury,” and “hepatitis c.” (AR 60.) After her 10 application was denied initially and on reconsideration (AR 89, 11 97), she requested a hearing before an Administrative Law Judge 12 (AR 102). 13 Plaintiff, who was represented by counsel, testified, as did a 14 medical and a vocational expert. 15 decision issued July 9, 2015, the ALJ found Plaintiff not 16 disabled. 17 (AR 22), which was denied on September 27, 2016 (AR 1-8). 18 action followed. 19 III. STANDARD OF REVIEW 20 A hearing was held on June 11, 2015, at which (AR 28-43.) (See AR 44-59.) In a written Plaintiff sought Appeals Council review This Under 42 U.S.C. § 405(g), a district court may review the 21 Commissioner’s decision to deny benefits. 22 decision should be upheld if they are free of legal error and 23 supported by substantial evidence based on the record as a whole. 24 See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra 25 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 26 evidence means such evidence as a reasonable person might accept 27 as adequate to support a conclusion. 28 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 2 The ALJ’s findings and Substantial Richardson, 402 U.S. at 1 It is more than a scintilla but less than a preponderance. 2 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 3 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 4 substantial evidence supports a finding, the reviewing court 5 “must review the administrative record as a whole, weighing both 6 the evidence that supports and the evidence that detracts from 7 the Commissioner’s conclusion.” 8 720 (9th Cir. 1998). 9 either affirming or reversing,” the reviewing court “may not To determine whether Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support 10 substitute its judgment” for the Commissioner’s. 11 IV. Id. at 720-21. THE EVALUATION OF DISABILITY 12 People are “disabled” for purposes of receiving Social 13 Security benefits if they are unable to engage in any substantial 14 gainful activity owing to a physical or mental impairment that is 15 expected to result in death or has lasted, or is expected to 16 last, for a continuous period of at least 12 months. 17 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 18 1992). 42 U.S.C. 19 A. 20 The ALJ follows a five-step evaluation process to assess The Five-Step Evaluation Process 21 whether a claimant is disabled. 22 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as 23 amended Apr. 9, 1996). 24 determine whether the claimant is currently engaged in 25 substantial gainful activity; if so, the claimant is not disabled 26 and the claim must be denied. 20 C.F.R. § 404.1520(a)(4); In the first step, the Commissioner must § 404.1520(a)(4)(i). 27 If the claimant is not engaged in substantial gainful 28 activity, the second step requires the Commissioner to determine 3 1 whether the claimant has a “severe” impairment or combination of 2 impairments significantly limiting her ability to do basic work 3 activities; if not, the claimant is not disabled and her claim 4 must be denied. 5 § 404.1520(a)(4)(ii). If the claimant has a “severe” impairment or combination of 6 impairments, the third step requires the Commissioner to 7 determine whether the impairment or combination of impairments 8 meets or equals an impairment in the Listing of Impairments set 9 forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, 10 disability is conclusively presumed. § 404.1520(a)(4)(iii). 11 If the claimant’s impairment or combination of impairments 12 does not meet or equal an impairment in the Listing, the fourth 13 step requires the Commissioner to determine whether the claimant 14 has sufficient residual functional capacity (“RFC”)1 to perform 15 her past work; if so, she is not disabled and the claim must be 16 denied. 17 proving she is unable to perform past relevant work. 18 F.2d at 1257. 19 case of disability is established. 20 the claimant has no past relevant work, the Commissioner then 21 bears the burden of establishing that the claimant is not 22 disabled because she can perform other substantial gainful work 23 available in the national economy. 24 966 F.2d at 1257. § 404.1520(a)(4)(iv). The claimant has the burden of Drouin, 966 If the claimant meets that burden, a prima facie Id. If that happens or if § 404.1520(a)(4)(v); Drouin, That determination comprises the fifth and 25 1 26 27 28 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 404.1545; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). The Commissioner assesses the claimant’s RFC between steps three and four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (citing § 416.920(a)(4)). 4 1 final step in the sequential analysis. § 404.1520(a)(4)(v); 2 Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. 3 B. 4 At step one, the ALJ found that Plaintiff had not engaged in The ALJ’s Application of the Five-Step Process 5 substantial gainful activity between April 7, 2009, the alleged 6 onset date, and December 31, 2011, her date last insured. 7 30.) 8 impairments of “hepatitis C, cholelithiasis,2 gallstones, 9 degenerative disc disease of the lumbar spine, degenerative (AR At step two, he concluded that Plaintiff had severe 10 changes of the left wrist, mild degenerative disc disease of the 11 cervical spine, personality disorder, and polysubstance abuse in 12 remission.” 13 impairments did not meet or equal a listing. 14 15 (Id.) At step three, he determined that Plaintiff’s (AR 30-31.) At step four, the ALJ found that Plaintiff had the RFC to perform light work with additional limitations: 16 [She] can lift and/or carry 20 pounds occasionally and 10 17 pounds frequently; she can stand and/or walk for 6 hours 18 out of an 8-hour workday with regular breaks; she can sit 19 for 6 hours out of an 8-hour workday with regular breaks; 20 she can occasionally reach above shoulder level with the 21 bilateral upper extremity; she can occasionally finger, 22 handle, and grip with the left upper extremity; she can 23 occasionally operate foot pedals with the bilateral lower 24 extremity; she can occasionally kneel, stoop, crawl, and 25 crouch; she cannot climb ladders, ropes, or scaffolds; 26 27 28 2 Cholelithiasis is the medical term for the presence of stones in the gallbladder. Stedman’s Medical Dictionary 339 (27th ed. 2000). 5 1 she cannot walk on uneven terrain; she cannot work at 2 unprotected heights; she can perform moderately complex 3 tasks with a reasoning level of four or below; she can 4 frequently 5 limitation interacting with the public. interact with coworkers; and she has no 6 (AR 32.) The ALJ determined that Plaintiff was unable to perform 7 her past relevant work. 8 VE’s testimony to find that given Plaintiff’s age, education, 9 work experience, and RFC for “unskilled light” work “impeded by (AR 36.) At step five, he relied on the 10 additional limitations,” she could perform light, unskilled jobs 11 available in the national economy, such as “Cashier II, DOT 12 211.462-010,” and “Parking lot signaler, DOT 915.667-014.” 13 36-37.) 14 V. 15 Accordingly, he found Plaintiff not disabled. (AR (AR 37.) DISCUSSION Plaintiff argues that the ALJ erred in assessing the opinion 16 of state-agency consulting psychologist Dr. Rosa Colonna by 17 failing to incorporate “any limitations as to social functioning 18 or to problems with attention and concentration” into her RFC. 19 (See Mem. P. & A. at 6-10.) 20 to the Appeals Council (see AR 267-69), and she never asked the 21 vocational expert any questions about such limitations (see AR 22 58). 23 this issue in federal court.3 Plaintiff did not raise this issue Accordingly, Plaintiff has likely waived the right to raise See Meanel v. Apfel, 172 F.3d 24 25 26 27 28 3 Plaintiff has actually “forfeited” the issue rather than “waived” it. See United States v. Scott, 705 F.3d 410, 415 (9th Cir. 2012) (“Waiver is ‘the intentional relinquishment or abandonment of a known right,’ whereas forfeiture is ‘the failure to make the timely assertion of [that] right.’” (alteration in original) (citation omitted)). But because most of the analogous cases refer to a “waiver rule,” the Court does too. 6 1 1111, 1115 (9th Cir. 1999) (as amended) (reviewing court need not 2 address issues not raised before ALJ or Appeals Council unless 3 manifest injustice would result); see also Phillips v. Colvin, 4 593 F. App’x 683, 684 (9th Cir. 2015) (“This issue was waived by 5 [claimant]’s failure to raise it at the administrative level when 6 he was represented by counsel, and [claimant] has not 7 demonstrated manifest injustice excusing the failure.”); 8 Solorzano v. Astrue, No. ED CV 11-369-PJW, 2012 WL 84527, at *6 9 (C.D. Cal. Jan. 10, 2012) (“Counsel are not supposed to be potted 10 plants at administrative hearings. 11 take an active role and to raise issues that may impact the ALJ’s 12 decision while the hearing is proceeding so that they can be 13 addressed.”).4 14 They have an obligation to In any event, as discussed below, the ALJ properly evaluated 15 the medical-opinion evidence and determined Plaintiff’s RFC, and 16 any error was harmless. 17 A. 18 A claimant’s RFC is “the most [she] can still do” despite Applicable Law 19 impairments and related symptoms that “may cause physical and 20 mental limitations that affect what [she] can do in a work 21 setting.” 22 ALJ’s RFC assessment when the ALJ has applied the proper legal § 404.1545(a)(1). A district court must uphold an 23 4 24 25 26 27 28 Meanel was decided in 1999. In 2000, the Supreme Court held that a plaintiff does not forfeit a claim simply by failing to raise it before the Appeals Council. Sims v. Apfel, 530 U.S. 103, 108 (2000) (holding that claims need not be raised before Appeals Council to be exhausted). But Sims expressly declined to decide whether a claim would be forfeited if the claimant also neglected to raise it before the ALJ. See id. at 107 (“Whether a claimant must exhaust issues before the ALJ is not before us.”). Thus, Sims did not overrule Meanel, which this Court remains bound by. 7 1 standard and substantial evidence in the record as a whole 2 supports the decision. 3 (9th Cir. 2005). 4 “together with the rest of the relevant evidence.” 5 § 404.1527(b);5 see also § 404.1545(a)(1) (“We will assess your 6 residual functional capacity based on all the relevant evidence 7 in your case record.”). 8 Bayliss v. Barnhart, 427 F.3d 1211, 1217 The ALJ must consider all the medical opinions Three types of physicians may offer opinions in Social 9 Security cases: those who directly treated the plaintiff, those 10 who examined but did not treat the plaintiff, and those who did 11 neither. 12 is generally entitled to more weight than an examining doctor’s, 13 and an examining physician’s opinion is generally entitled to 14 more weight than a nonexamining physician’s. 15 § 404.1527(c)(1). 16 Lester, 81 F.3d at 830. A treating physician’s opinion Id.; see When a physician’s opinion is not contradicted by other 17 medical-opinion evidence, it may be rejected only for “clear and 18 convincing” reasons. Magallanes v. Bowen, 881 F.2d 747, 751 (9th 19 20 21 22 23 24 25 26 27 28 5 Social Security regulations regarding the evaluation of opinion evidence were amended effective March 27, 2017. When, as here, the ALJ’s decision is the final decision of the Commissioner, the reviewing court generally applies the law in effect at the time of the ALJ’s decision. See Lowry v. Astrue, 474 F. App’x 801, 804 n.2 (2d Cir. 2012) (applying version of regulation in effect at time of ALJ’s decision despite subsequent amendment); Garrett ex rel. Moore v. Barnhart, 366 F.3d 643, 647 (8th Cir. 2004) (“We apply the rules that were in effect at the time the Commissioner’s decision became final.”); Spencer v. Colvin, No. 3:15-CV-05925-DWC, 2016 WL 7046848, at *9 n.4 (W.D. Wash. Dec. 1, 2016) (“42 U.S.C. § 405 does not contain any express authorization from Congress allowing the Commissioner to engage in retroactive rulemaking.”). Accordingly, citations to 20 C.F.R. § 404.1527 are to the version in effect from August 24, 2012, to March 26, 2017. 8 1 Cir. 1989); see Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 2 1155, 1164 (9th Cir. 2008) (citing Lester, 81 F.3d at 830-31). 3 When it is contradicted, the ALJ must provide only “specific and 4 legitimate reasons” for discounting it. 5 1164 (citing Lester, 81 F.3d at 830-31). 6 Carmickle, 533 F.3d at In determining an RFC, the ALJ should consider those 7 limitations for which there is support in the record and need not 8 take into account properly rejected evidence or subjective 9 complaints. See Bayliss, 427 F.3d at 1217 (upholding ALJ’s RFC 10 determination because “the ALJ took into account those 11 limitations for which there was record support that did not 12 depend on [claimant]’s subjective complaints”); Batson v. Comm’r 13 of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (ALJ not 14 required to incorporate into RFC those findings from physician 15 opinions that were “permissibly discounted”). 16 findings by state-agency medical consultants and experts as 17 opinion evidence. 18 The ALJ considers § 404.1527(e). The Court must consider the ALJ’s decision in the context of 19 “the entire record as a whole,” and if the “‘evidence is 20 susceptible to more than one rational interpretation,’ the ALJ’s 21 decision should be upheld.” 22 F.3d 1194, 1198 (9th Cir. 2008) (citation omitted). Ryan v. Comm’r of Soc. Sec., 528 23 B. Relevant Background 24 On January 22, 2015, Dr. Colonna performed a complete 25 psychological evaluation of Plaintiff. 26 reported that she had been diagnosed with bipolar disorder 27 “[five] years ago” and had a psychiatric hospitalization in 2014. 28 (AR 663.) (AR 662-70.) She stated that “she also went through a 9 Plaintiff 1 detoxification program [for her methamphetamine and opioid 2 addictions] at San Dimas Hospital.”6 3 mental-status examination of Plaintiff showed that she “was able 4 to respond appropriately to imaginary situations requiring social 5 judgement and knowledge of the norms.” 6 and concentration span [were] moderately diminished,” as was her 7 memory “for immediate, intermediate and remote recall.” 8 She “appear[ed] to be sedated [and] at times [was] tearful.” 9 (Id.) (Id.) Dr. Colonna’s (AR 664.) Her “attention (Id.) Her effort was “adequate,” her mood was “mildly 10 dysthymic,” and her affect was “constricted.” 11 showed “no obvious psychotic indicators” “at the time of the 12 examination.” 13 and purpose of the examination.” 14 modulated but clear,” and her thoughts were “organized in a 15 linear manner.” 16 (Id.) 17 18 (Id.) (Id.) Plaintiff She was “oriented to person, time, place (Id.) (Id.) Her speech was “under “Psychomotor slowing [was] not evident.” Dr. Colonna determined that “[g]iven the test results and clinical data, [Plaintiff’s] overall cognitive ability [was] in 19 20 21 22 23 24 25 26 27 28 6 Dr. Colonna could not confirm Plaintiff’s bipolar diagnosis or her hospitalizations because no medical records were provided to her. (See AR 663.) The record shows that Plaintiff admitted herself to Aurora Charter Oak Hospital from March 3 to March 10, 2014, for treatment of “depression and withdrawal from opiates.” (See AR 700-07.) The discharge summary from Charter Oak did not show a bipolar-disorder diagnosis (AR 700-01; see also AR 690), nor does any other document in the record. The only records from San Dimas Community Hospital are from Plaintiff’s various visits to the emergency room. (See AR 628-33 (Mar. 12, 2014, for “left ankle and foot pain”), 634-37 (Mar. 2, 2014, for narcotics withdrawal), 638-40 (Jan. 31, 2014, for body aches associated with myalgias), 641-47 (Nov. 9, 2013, for anxiety and arm and chest pain).) It does not appear that she was admitted to the hospital after any of these emergency-room visits. (See AR 630, 635, 637, 640, 647.) 10 1 the mid borderline to low average range.” 2 diagnosed Plaintiff with “mood disorder, not otherwise specified” 3 and “personality disorder borderline traits.” 4 (AR 665.) She (AR 666.) In her medical-source-statement report, Dr. Colonna noted 5 that “[b]ased on [her] assessment, [Plaintiff] would be able to 6 understand, remember and carry out short, simplistic instructions 7 without difficulty” and had a “mild inability to understand, 8 remember and carry out detailed instructions.” 9 that Plaintiff would “be able to make simplistic work-related (Id.) She noted 10 decisions without special supervision.” 11 further stated that Plaintiff “present[ed] with a mild inability 12 to interact appropriately with supervisors, coworkers and peers” 13 because she “bec[a]me tearful at times” during the evaluation. 14 (Id.) 15 (Id.) Dr. Colonna In a form attached to her report, Dr. Colonna checked boxes 16 noting that Plaintiff could understand, remember, and carry out 17 simple instructions and make judgments on simple work-related 18 decisions with no impairments. 19 impairments understanding, remembering, and carrying out 20 “complex” instructions and making judgments on “complex work- 21 related decisions.” 22 restrictions interacting appropriately with supervisors, 23 coworkers, and the public. 24 a “mild” impairment as meaning that “[t]here is a slight 25 limitation in this area, but the individual can generally 26 function well.” (Id.) (AR 668.) Plaintiff had “mild” Plaintiff also had “mild” (AR 669.) The check-box form defined (AR 668.) 27 The ALJ gave “great weight” to Dr. Colonna’s opinion because 28 she “personally observed and examined” Plaintiff and her “opinion 11 1 [was] consistent” with the “positive objective physical clinical 2 and diagnostic findings” from the examination. 3 noted that “[s]he assessed mental limitations that are 4 essentially the same as those included in the [RFC].” (AR 35-36.) He (Id.) 5 C. 6 The ALJ found that Plaintiff was able to “perform moderately Analysis 7 complex tasks with a reasoning level of four or below,” could 8 “frequently interact with coworkers,” and had “no limitation 9 interacting with the public.” (AR 32.) Plaintiff argues that 10 because the ALJ did not assess limitations on interactions with 11 the general public or in concentration, persistence, or pace, he 12 implicitly rejected Dr. Colonna’s opinion in part and failed to 13 give specific and legitimate reasons for doing so. 14 at 8-9.)7 15 opinion and incorporated it into her RFC, remand is not 16 warranted. 17 (Mem. P. & A. Because the ALJ properly assessed Dr. Colonna’s In fact, the ALJ’s RFC was generally consistent with Dr. 18 Colonna’s findings, as he noted. 19 ALJ did not mention the check-box Dr. Colonna marked stating that 20 Plaintiff had mild limitations interacting appropriately with the 21 public (see AR 669), he was not required to “discuss every piece 22 of evidence” when crafting Plaintiff’s RFC. 23 Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (citing 24 Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998)). 25 Colonna’s report as a whole indicated that Plaintiff could (See AR 35-36.) Although the See Howard ex rel. Dr. 26 27 28 7 Because Plaintiff assumes that the specific-and-legitimate standard applies (see Mem. P. & A. at 7-8), the Court does so as well. 12 1 “generally function well” and was “able to respond appropriately 2 to imaginary situations requiring social judgement and knowledge 3 of the norms.” 4 “socially appropriate” with her. 5 Colonna’s report “great weight” and discussed key portions of it 6 in his decision. 7 App’x __, No. 16-55078, 2017 WL 4512210, at *2 (9th Cir. Oct. 10, 8 2017) (holding that ALJ’s failure to mention physician’s 9 observation of plaintiff’s moderate impairment in ability to (AR 664, 668.) She also noted that Plaintiff was (AR 666.) The ALJ gave Dr. (AR 34-35); see also Ward v. Berryhill, __ F. 10 maintain regular attendance at work did not require reversal even 11 though ALJ gave opinion “great weight” because physician’s 12 “report as a whole indicate[d] that [plaintiff was] capable of 13 working full-time”). 14 capable of acting “socially appropriate” with members of the 15 general public. 16 That report indicated that Plaintiff was (See AR 662-70.) “An ALJ must consider all of the evidence in the record, not 17 just a lone sentence.” 18 *2. 19 Manual System, the ALJ did not need to specifically take into 20 account each check-box limitation in Plaintiff’s RFC because 21 “[i]t is the narrative written by the psychiatrist . . . that 22 adjudicators are to use as the assessment of RFC.” 23 Colvin, 626 F. App’x 699, 703 (9th Cir. 2015) (citing POMS DI 24 25020.010 at B.1., available at 25 lnx/0425020010). 26 Plaintiff’s “mild inability to interact appropriately with 27 supervisors, coworkers and peers” — which the ALJ specifically 28 took into account by limiting her to frequent interactions with Ward, __ F. App’x __, 2017 WL 4512210, at Moreover, according to the Commissioner’s Program Operations See Garner v. Although that narrative specifically noted 13 1 coworkers (AR 32) — it made no mention of any limitation in 2 dealing with the public. (AR 666.) 3 Further, the ALJ’s determination that Plaintiff could 4 “perform moderately complex tasks with a reasoning level of four 5 or below” reasonably synthesized any limitations in attention and 6 concentration assessed by Dr. Colonna. 7 ALJ’s [RFC] assessment of a claimant adequately captures 8 restrictions related to concentration, persistence, or pace where 9 the assessment is consistent with restrictions identified in the 10 medical testimony.” 11 (See AR 32.)8 “[A]n 1174 (9th Cir. 2008). Stubbs-Danielson v. Astrue, 539 F.3d 1169, 12 Dr. Colonna opined that though Plaintiff’s “attention and 13 concentration span [were] moderately diminished” on the day of 14 the exam, she “would be able to understand, remember and carry 15 out short, simplistic instructions without difficulty” and 16 presented with only a “mild inability to understand, remember and 17 carry out detailed instructions.” 18 and judgment [were] grossly age appropriate.” 19 Plaintiff also had only “mild” restrictions in understanding, 20 remembering, and carrying out complex instructions and making 21 judgments on complex work-related decisions. 22 restrictions represent slight limitations that do not prevent the (AR 664, 666.) Her “insight (AR 664.) (AR 668.) “Mild” 23 8 24 25 26 27 28 The Dictionary of Occupational Titles describes six levels of reasoning under the “Reasoning Development” scale. See DOT, app. C, 1991 WL 688702. Level-four reasoning means a claimant can “[a]pply principles of rational systems to solve practical problems and deal with a variety of concrete variables in situations where only limited standardization exists.” Id. The two jobs the ALJ found Plaintiff could perform, cashier II and parking-lot signaler, have reasoning levels of three and two, respectively. See DOT 211.462-010, Cashier II, 1991 WL 671840; id. 915.667-014, Parking Lot Signaler, 1991 WL 687870. 14 1 claimant from “generally function[ing] well.” 2 Moreover, to the extent Dr. Colonna’s report was based on 3 Plaintiff’s symptom statements, the ALJ found her subjective 4 symptom testimony not entirely credible (AR 32-33), which 5 Plaintiff does not challenge. 6 thus consistent with the level of functioning assessed by Dr. 7 Colonna and found elsewhere in the record. 8 (Oct. 2011 neurological consultation, observing that “[t]hree- 9 stage commands are followed easily” and “[a]ttention span and 10 11 (AR 668.) The ALJ’s RFC determination was (See, e.g., AR 364 concentration are normal”).) Accordingly, the ALJ did not err in assessing the medical- 12 opinion evidence or determining Plaintiff’s RFC. Substantial 13 evidence therefore supports the ALJ’s decision.9 As such, remand 14 9 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Furthermore, as Defendant points out (Def.’s Opp’n to Pl.’s Mot. Summ. J. at 6-8), it is not clear that the limitations assessed by Dr. Colonna on January 22, 2015, even existed before the expiration of Plaintiff’s insured status on December 31, 2011 (AR 30, 183). In order to receive DIB, a claimant must establish that she became disabled on or before the expiration of her insured status. § 404.131; see also Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). The record as a whole does not reveal substantial evidence of a mental impairment during the required period. On April 28, 2011, Plaintiff’s “judgment and insight appear[ed] to be normal,” and “[n]o mood disorders” were recorded. (AR 367.) On October 28, 2011, a mental-status examination showed Plaintiff to be “alert and fully oriented,” “[s]pontaneous speech [was] fluent without paraphasias,” “[t]hree-stage commands [were] followed easily,” she “repeat[ed] a complicated sentence well,” “[r]ecent and remote memory [were] good,” “[f]und of knowledge [was] good,” and “[a]ttention span and concentration [were] normal.” (AR 364.) When Plaintiff applied for DIB in 2013, she did not even allege a mental impairment. (See AR 60.) It is true, as the ALJ notes (see AR 34), that Plaintiff was prescribed antidepressants in 2011 (see AR 274 (listing various medications, though unclear which of these were actually prescribed), 279, 294), but the accompanying medical records are mostly illegible — with any legible notes describing physical rather than mental problems — making it difficult to determine how severe Plaintiff’s mental symptoms 15 1 is not warranted. 2 VI. 3 See Stubbs-Danielson, 539 F.3d at 1174. CONCLUSION Consistent with the foregoing and under sentence four of 42 4 U.S.C. § 405(g),10 IT IS ORDERED that judgment be entered 5 AFFIRMING the Commissioner’s decision, DENYING Plaintiff’s motion 6 for summary judgment, GRANTING Defendant’s motion for summary 7 judgment, and DISMISSING this action with prejudice. 8 9 DATED: November 29, 2017 10 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 were at that time. (See generally AR 270-367.) Though a medical examiner who reviewed her records for a claim not associated with her DIB application noted in January 2011 that Plaintiff had psychiatric symptoms and took bupropion and Paroxetine “for panic attacks” to “calm her down” (see AR 546, 595), there are no actual psychiatric or other medical records supporting that statement. 10 That sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 16

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