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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ROSE MARY MIRANDA,
Plaintiff,

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v.

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NANCY A. BERRYHILL, Acting
Commissioner of Social
Security,

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Defendant.

) Case No. CV 17-7616-JPR
)
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) MEMORANDUM DECISION AND ORDER
) AFFIRMING COMMISSIONER
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I.

PROCEEDINGS

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Plaintiff seeks review of the Commissioner’s final decision

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denying her application for Social Security disability insurance

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benefits (“DIB”).

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the undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c).

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The matter is before the Court on the parties’ cross-motions for

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summary judgment.

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submission without oral argument.

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the Commissioner’s decision is affirmed.

The parties consented to the jurisdiction of

The Court has taken both motions under

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For the reasons stated below,

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II.

BACKGROUND
Plaintiff was born in 1960.

(Administrative Record (“AR”)

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60, 75.)

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shipping and receiving clerk and restaurant shift leader (AR 52,

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72, 188).

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She completed 10th grade (AR 69, 188) and worked as a

On September 6, 2013, Plaintiff applied for DIB, alleging

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that she had been unable to work since April 7, 2009, because of

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“bulged disk #2 [and] #5,” “fractured tailbone,” “back pain due

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to back injury,” and “hepatitis c.”

(AR 60.)

After her

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application was denied initially and on reconsideration (AR 89,

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97), she requested a hearing before an Administrative Law Judge

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(AR 102).

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Plaintiff, who was represented by counsel, testified, as did a

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medical and a vocational expert.

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decision issued July 9, 2015, the ALJ found Plaintiff not

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disabled.

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(AR 22), which was denied on September 27, 2016 (AR 1-8).

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action followed.

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III. STANDARD OF REVIEW

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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

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Commissioner’s decision to deny benefits.

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

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supported by substantial evidence based on the record as a whole.

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

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

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evidence means such evidence as a reasonable person might accept

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as adequate to support a conclusion.

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401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007).
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The ALJ’s findings and

Substantial

Richardson, 402 U.S. at

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

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

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

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substantial evidence supports a finding, the reviewing court

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

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the evidence that supports and the evidence that detracts from

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the Commissioner’s conclusion.”

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720 (9th Cir. 1998).

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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

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substitute its judgment” for the Commissioner’s.

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IV.

Id. at 720-21.

THE EVALUATION OF DISABILITY

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People are “disabled” for purposes of receiving Social

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Security benefits if they are unable to engage in any substantial

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gainful activity owing to a physical or mental impairment that is

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

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

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

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1992).

42 U.S.C.

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A.

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The ALJ follows a five-step evaluation process to assess

The Five-Step Evaluation Process

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whether a claimant is disabled.

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Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as

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amended Apr. 9, 1996).

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determine whether the claimant is currently engaged in

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substantial gainful activity; if so, the claimant is not disabled

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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).

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If the claimant is not engaged in substantial gainful

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activity, the second step requires the Commissioner to determine
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whether the claimant has a “severe” impairment or combination of

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impairments significantly limiting her ability to do basic work

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

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must be denied.

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§ 404.1520(a)(4)(ii).

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

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impairments, the third step requires the Commissioner to

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determine whether the impairment or combination of impairments

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meets or equals an impairment in the Listing of Impairments set

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forth at 20 C.F.R. part 404, subpart P, appendix 1; if so,

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disability is conclusively presumed.

§ 404.1520(a)(4)(iii).

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If the claimant’s impairment or combination of impairments

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

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step requires the Commissioner to determine whether the claimant

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

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

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denied.

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proving she is unable to perform past relevant work.

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F.2d at 1257.

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case of disability is established.

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the claimant has no past relevant work, the Commissioner then

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bears the burden of establishing that the claimant is not

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disabled because she can perform other substantial gainful work

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available in the national economy.

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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

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RFC is what a claimant can do despite existing exertional
and nonexertional limitations. § 404.1545; see Cooper v.
Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 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)).
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final step in the sequential analysis.

§ 404.1520(a)(4)(v);

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Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257.

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B.

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

The ALJ’s Application of the Five-Step Process

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substantial gainful activity between April 7, 2009, the alleged

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onset date, and December 31, 2011, her date last insured.

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30.)

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impairments of “hepatitis C, cholelithiasis,2 gallstones,

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degenerative disc disease of the lumbar spine, degenerative

(AR

At step two, he concluded that Plaintiff had severe

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changes of the left wrist, mild degenerative disc disease of the

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cervical spine, personality disorder, and polysubstance abuse in

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remission.”

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impairments did not meet or equal a listing.

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(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:

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[She] can lift and/or carry 20 pounds occasionally and 10

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pounds frequently; she can stand and/or walk for 6 hours

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out of an 8-hour workday with regular breaks; she can sit

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for 6 hours out of an 8-hour workday with regular breaks;

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she can occasionally reach above shoulder level with the

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bilateral upper extremity; she can occasionally finger,

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handle, and grip with the left upper extremity; she can

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occasionally operate foot pedals with the bilateral lower

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extremity; she can occasionally kneel, stoop, crawl, and

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crouch; she cannot climb ladders, ropes, or scaffolds;

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Cholelithiasis is the medical term for the presence of
stones in the gallbladder. Stedman’s Medical Dictionary 339
(27th ed. 2000).
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she cannot walk on uneven terrain; she cannot work at

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unprotected heights; she can perform moderately complex

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tasks with a reasoning level of four or below; she can

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frequently

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limitation interacting with the public.

interact

with

coworkers;

and

she

has

no

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(AR 32.)

The ALJ determined that Plaintiff was unable to perform

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her past relevant work.

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VE’s testimony to find that given Plaintiff’s age, education,

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work experience, and RFC for “unskilled light” work “impeded by

(AR 36.)

At step five, he relied on the

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additional limitations,” she could perform light, unskilled jobs

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available in the national economy, such as “Cashier II, DOT

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211.462-010,” and “Parking lot signaler, DOT 915.667-014.”

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36-37.)

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V.

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Accordingly, he found Plaintiff not disabled.

(AR

(AR 37.)

DISCUSSION
Plaintiff argues that the ALJ erred in assessing the opinion

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of state-agency consulting psychologist Dr. Rosa Colonna by

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failing to incorporate “any limitations as to social functioning

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or to problems with attention and concentration” into her RFC.

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(See Mem. P. & A. at 6-10.)

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to the Appeals Council (see AR 267-69), and she never asked the

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vocational expert any questions about such limitations (see AR

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58).

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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

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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.
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1111, 1115 (9th Cir. 1999) (as amended) (reviewing court need not

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address issues not raised before ALJ or Appeals Council unless

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manifest injustice would result); see also Phillips v. Colvin,

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593 F. App’x 683, 684 (9th Cir. 2015) (“This issue was waived by

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[claimant]’s failure to raise it at the administrative level when

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he was represented by counsel, and [claimant] has not

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demonstrated manifest injustice excusing the failure.”);

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

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

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plants at administrative hearings.

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

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decision while the hearing is proceeding so that they can be

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addressed.”).4

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They have an obligation to

In any event, as discussed below, the ALJ properly evaluated

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the medical-opinion evidence and determined Plaintiff’s RFC, and

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any error was harmless.

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A.

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A claimant’s RFC is “the most [she] can still do” despite

Applicable Law

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impairments and related symptoms that “may cause physical and

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mental limitations that affect what [she] can do in a work

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setting.”

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ALJ’s RFC assessment when the ALJ has applied the proper legal

§ 404.1545(a)(1).

A district court must uphold an

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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.
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standard and substantial evidence in the record as a whole

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supports the decision.

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(9th Cir. 2005).

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“together with the rest of the relevant evidence.”

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§ 404.1527(b);5 see also § 404.1545(a)(1) (“We will assess your

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residual functional capacity based on all the relevant evidence

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in your case record.”).

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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

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Security cases: those who directly treated the plaintiff, those

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who examined but did not treat the plaintiff, and those who did

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neither.

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is generally entitled to more weight than an examining doctor’s,

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and an examining physician’s opinion is generally entitled to

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more weight than a nonexamining physician’s.

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§ 404.1527(c)(1).

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Lester, 81 F.3d at 830.

A treating physician’s opinion

Id.; see

When a physician’s opinion is not contradicted by other

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medical-opinion evidence, it may be rejected only for “clear and

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convincing” reasons.

Magallanes v. Bowen, 881 F.2d 747, 751 (9th

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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

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Cir. 1989); see Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d

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1155, 1164 (9th Cir. 2008) (citing Lester, 81 F.3d at 830-31).

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When it is contradicted, the ALJ must provide only “specific and

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legitimate reasons” for discounting it.

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

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Carmickle, 533 F.3d at

In determining an RFC, the ALJ should consider those

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limitations for which there is support in the record and need not

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take into account properly rejected evidence or subjective

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complaints.

See Bayliss, 427 F.3d at 1217 (upholding ALJ’s RFC

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determination because “the ALJ took into account those

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limitations for which there was record support that did not

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depend on [claimant]’s subjective complaints”); Batson v. Comm’r

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of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (ALJ not

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required to incorporate into RFC those findings from physician

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opinions that were “permissibly discounted”).

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findings by state-agency medical consultants and experts as

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opinion evidence.

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The ALJ considers

§ 404.1527(e).

The Court must consider the ALJ’s decision in the context of

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“the entire record as a whole,” and if the “‘evidence is

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susceptible to more than one rational interpretation,’ the ALJ’s

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decision should be upheld.”

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F.3d 1194, 1198 (9th Cir. 2008) (citation omitted).

Ryan v. Comm’r of Soc. Sec., 528

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B.

Relevant Background

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On January 22, 2015, Dr. Colonna performed a complete

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psychological evaluation of Plaintiff.

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reported that she had been diagnosed with bipolar disorder

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“[five] years ago” and had a psychiatric hospitalization in 2014.

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(AR 663.)

(AR 662-70.)

She stated that “she also went through a
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Plaintiff

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detoxification program [for her methamphetamine and opioid

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addictions] at San Dimas Hospital.”6

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mental-status examination of Plaintiff showed that she “was able

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to respond appropriately to imaginary situations requiring social

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judgement and knowledge of the norms.”

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and concentration span [were] moderately diminished,” as was her

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memory “for immediate, intermediate and remote recall.”

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She “appear[ed] to be sedated [and] at times [was] tearful.”

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(Id.)

(Id.)

Dr. Colonna’s

(AR 664.)

Her “attention

(Id.)

Her effort was “adequate,” her mood was “mildly

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dysthymic,” and her affect was “constricted.”

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showed “no obvious psychotic indicators” “at the time of the

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examination.”

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and purpose of the examination.”

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modulated but clear,” and her thoughts were “organized in a

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linear manner.”

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(Id.)

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(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

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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.)
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the mid borderline to low average range.”

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diagnosed Plaintiff with “mood disorder, not otherwise specified”

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and “personality disorder borderline traits.”

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(AR 665.)

She

(AR 666.)

In her medical-source-statement report, Dr. Colonna noted

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that “[b]ased on [her] assessment, [Plaintiff] would be able to

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understand, remember and carry out short, simplistic instructions

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without difficulty” and had a “mild inability to understand,

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remember and carry out detailed instructions.”

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that Plaintiff would “be able to make simplistic work-related

(Id.)

She noted

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decisions without special supervision.”

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further stated that Plaintiff “present[ed] with a mild inability

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to interact appropriately with supervisors, coworkers and peers”

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because she “bec[a]me tearful at times” during the evaluation.

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(Id.)

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(Id.)

Dr. Colonna

In a form attached to her report, Dr. Colonna checked boxes

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noting that Plaintiff could understand, remember, and carry out

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simple instructions and make judgments on simple work-related

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decisions with no impairments.

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impairments understanding, remembering, and carrying out

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“complex” instructions and making judgments on “complex work-

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related decisions.”

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restrictions interacting appropriately with supervisors,

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coworkers, and the public.

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a “mild” impairment as meaning that “[t]here is a slight

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limitation in this area, but the individual can generally

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function well.”

(Id.)

(AR 668.)

Plaintiff had “mild”

Plaintiff also had “mild”

(AR 669.)

The check-box form defined

(AR 668.)

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The ALJ gave “great weight” to Dr. Colonna’s opinion because

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she “personally observed and examined” Plaintiff and her “opinion
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[was] consistent” with the “positive objective physical clinical

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and diagnostic findings” from the examination.

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noted that “[s]he assessed mental limitations that are

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essentially the same as those included in the [RFC].”

(AR 35-36.)

He

(Id.)

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C.

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The ALJ found that Plaintiff was able to “perform moderately

Analysis

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complex tasks with a reasoning level of four or below,” could

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“frequently interact with coworkers,” and had “no limitation

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interacting with the public.”

(AR 32.)

Plaintiff argues that

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because the ALJ did not assess limitations on interactions with

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the general public or in concentration, persistence, or pace, he

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implicitly rejected Dr. Colonna’s opinion in part and failed to

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give specific and legitimate reasons for doing so.

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at 8-9.)7

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opinion and incorporated it into her RFC, remand is not

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warranted.

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(Mem. P. & A.

Because the ALJ properly assessed Dr. Colonna’s

In fact, the ALJ’s RFC was generally consistent with Dr.

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Colonna’s findings, as he noted.

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ALJ did not mention the check-box Dr. Colonna marked stating that

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Plaintiff had mild limitations interacting appropriately with the

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public (see AR 669), he was not required to “discuss every piece

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of evidence” when crafting Plaintiff’s RFC.

23

Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (citing

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Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998)).

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Colonna’s report as a whole indicated that Plaintiff could

(See AR 35-36.)

Although the

See Howard ex rel.

Dr.

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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.
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“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”).

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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

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just a lone sentence.”

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*2.

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Manual System, the ALJ did not need to specifically take into

20

account each check-box limitation in Plaintiff’s RFC because

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“[i]t is the narrative written by the psychiatrist . . . that

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adjudicators are to use as the assessment of RFC.”

23

Colvin, 626 F. App’x 699, 703 (9th Cir. 2015) (citing POMS DI

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25020.010 at B.1., available at https://secure.ssa.gov/poms.NSF/

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lnx/0425020010).

26

Plaintiff’s “mild inability to interact appropriately with

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supervisors, coworkers and peers” — which the ALJ specifically

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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

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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.

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ALJ’s [RFC] assessment of a claimant adequately captures

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restrictions related to concentration, persistence, or pace where

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the assessment is consistent with restrictions identified in the

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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

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presented with only a “mild inability to understand, remember and

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carry out detailed instructions.”

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and judgment [were] grossly age appropriate.”

19

Plaintiff also had only “mild” restrictions in understanding,

20

remembering, and carrying out complex instructions and making

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judgments on complex work-related decisions.

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restrictions represent slight limitations that do not prevent the

(AR 664, 666.)

Her “insight

(AR 664.)

(AR 668.)

“Mild”

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8

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25
26
27
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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.
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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

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symptom testimony not entirely credible (AR 32-33), which

5

Plaintiff does not challenge.

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thus consistent with the level of functioning assessed by Dr.

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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

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9

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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

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AFFIRMING the Commissioner’s decision, DENYING Plaintiff’s motion

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for summary judgment, GRANTING Defendant’s motion for summary

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judgment, and DISMISSING this action with prejudice.

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DATED: November 29, 2017

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______________________________
JEAN ROSENBLUTH
U.S. Magistrate Judge

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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.”
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