Phyllis Elaine Collins v. Carolyn W. Colvin

Filing 22

MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner. (See document for further details). (mr)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11

PHYLLIS ELAINE COLLINS,

12
13
14

Case No. EDCV 15-0149 (SS)

Plaintiff,
v.

15
16

MEMORANDUM DECISION AND ORDER

CAROLYN W. COLVIN, Acting
Commissioner of Social
Security,
Defendant.

17
18

I.

19

INTRODUCTION

20
21

Plaintiff Phyllis Elaine Collins (“Plaintiff”) seeks review

22

of the final decision of the Commissioner of the Social Security

23

Administration (the “Commissioner” or the “Agency”) denying her

24

application

25

consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of

26

the undersigned United States Magistrate Judge.

27

stated below, the decision of the Commissioner is AFFIRMED.

28

for

Disability

Insurance

Benefits.

The

parties

For the reasons

1

II.

2

PROCEDURAL HISTORY

3
4

Plaintiff

filed

Benefits

an

application

Record

7

disability onset date of March 15, 2010.

8

denied Plaintiff’s application initially on October 5, 2012, and

9

upon reconsideration on March 5, 2013.

the

12,

2012.

Disability

6

In

May

II

Insurance

22).

on

Title

5

(“AR”)

(“DIB”)

for

application,

(Administrative

Plaintiff
(Id.).

(Id.).

alleged

a

The agency

On April 8, 2013,

10

Plaintiff requested a hearing before an Administrative Law Judge

11

(“ALJ”).

12

Levine, on October 3, 2013.

13

2013, the ALJ issued a decision denying Plaintiff benefits.

14

19,

15

decision, which the Appeals Council denied on December 2, 2014.

16

(Complaint at 2).

17

on January 23, 2015.

28).

(Id.).

Plaintiff testified before the ALJ, Jay E.

Plaintiff

(Id. at 22, 28).

timely

requested

On October 31,

review

of

the

(AR
ALJ’s

Plaintiff then filed an action in this Court
(Case No. 15-0149 SS).

18
19

III.

20

FACTUAL BACKGROUND

21
22

Plaintiff was born on July 5, 1954.

(AR 59).

Plaintiff was

23

fifty-five years old at the time of her alleged disability onset

24

date,

25

hearing before the ALJ.

26

from high school and has no job or vocational training other than

27

on-the-job-training.

(AR

59),

and

fifty-nine

years

(AR 35).

(AR 35-36).

28
2

old

at

the

time

of

her

Plaintiff did not graduate

Plaintiff worked for twenty-

1

five years at a cord factory making electrical cords.1

2

Plaintiff’s job required a significant amount of standing and

3

lifting of objects weighing ten pounds or more.

4

178).

5

went out of business.

6

from 2006 to 2008 and then briefly operated “a little day care”

7

in her home in 2009, but she stopped operating the day care after

8

having difficulty standing and being able to walk children to and

9

from school.

(AR 36).

(AR 36, 44,

Plaintiff stopped working in 2005 after the cord factory
(AR 37, 176).

(AR 37).

Plaintiff was unemployed

Plaintiff alleges an onset of disability

10

due to pain in her knees, hips, shoulders and elbows, arthritis,

11

hypertension, headaches, depression and anxiety.

12

the

13

Benefits Application, Plaintiff lists “uncontrolled high blood

14

pressure”

15

limiting her ability to work.

Disability

and

Report

pain

in

accompanying

“both

the

knees”

(AR 39-44).

Disability

as

physical

In

Insurance

conditions

(AR 59).

16
17

A.

Medical History

18
19

1.

Arrowhead Regional Medical Center

20
21

On January 23, 2010, Plaintiff went to the emergency room

22

due to severe pain in both knees.

23

physician prescribed “Norco,” a pain medication.

24

physician’s

25

1

26
27
28

final

impression

was

(AR 219).

“left

The emergency room
(AR 220).

hip/knee”

pain

The
and

The vocational expert elicited testimony that Plaintiff took
orders from customers, read blueprints, and made coils. (AR 38).
Plaintiff also intermittently worked as a lead worker and
supervised five people when the lead worker went on vacation; in
that role, coordinating shipping, tracking and payments were
among Plaintiff’s responsibilities. (Id.).
3

1

degenerative joint disease.

2

doctor’s visit, Plaintiff also complained of knee pain.

3

247).

(AR 221).

During a June 27, 2011,
(AR

4
5

From February 2010 to March 2013, Plaintiff’s primary care

6

physician,

Dr.

7

Radiology

8

laboratory tests on Plaintiff, including MRIs and mammograms.

9

(AR 262-275).

and

Joachim
Pathology

M.

Brown,

D.O.,

departments

to

ordered
conduct

Arrowhead’s
a

number

of

On May 23, 2012, an MRI of Plaintiff’s bilateral

10

standing knees found “mild tibial spine osteophyte.”

11

On June 6, 2012, an MRI of Plaintiff’s bilateral knees found

12

“mild osteoarthritis” of the knees.

13

note dated June 21, 2012, noted knee pain and osteoarthritis.

14

(AR

15

positive crepitus and a decreased range of motion.

16

The physician noted that throbbing in the knees increased with

17

walking and stair climbing.

18

examination

19

osteoarthritis.

243).

Another

of

examination

of

(Id.).

Plaintiff’s

right

(AR 271).

(AR 272).

An outpatient

Plaintiff’s

knees

found

(AR 244).

On February 8, 2013, an
shoulder

found

mild

(AR 266).

20
21

2.

Vincente R. Bernabe, D.O.

22
23

At

the

request

of

the

Department

of

Social

Services,

24

Plaintiff visited Dr. Bernabe for an orthopedic examination and

25

consultation in September 2012.

26

of chronic left knee pain and left hip pain.

27

noted that Plaintiff’s pain started in 2010 and had progressed

28

from an intermittent pain she felt twice a month to constant

(AR 222).

4

Plaintiff complained
(Id.).

Dr. Bernabe

1

“throbbing” and “burning.”

2

Plaintiff’s range of motion of her upper extremities was within

3

normal limits.2

4

hips revealed “tenderness to palpation at the greater trochanter

5

bursa of the left hip.”

6

and crepitus in the patellofemoral joint of the left knee, with

7

popping [and] tenderness at the insertion of the patellar tendon

8

into the proximal tibia.”

9

Plaintiff should be able to lift and carry with no restrictions,

10

be able to stand and walk up to six hours of an eight-hour day,

11

and have no problems sitting.

(Id.).

(AR 224).

An examination revealed that

However, examination of Plaintiff’s

(Id.).

Dr. Bernabe also found “grinding

(AR 225).

Dr. Bernabe determined

(AR 226).

12
13

B.

Non-Examining Physicians’ Opinions

14
15

On October 5, 2012, Disability Determination Service (“DDS”)

16

medical

consultants

17

evidence

18

insufficient evidence to establish a severe impairment prior to

19

the date last insured.

(AR 63-64).

20

Plaintiff’s

about

21

functionally

22

substantiated by the objective medical evidence alone.

23

63).

24

her symptoms were only partially credible.

25

assigned “great” weight to the DDS consultants’ opinion.

26

27).

to

determined

evaluate

statements
limiting

that

Plaintiff’s

the

effects

of

there
claim,

was

insufficient

i.e.

there

was

The doctor concluded that
intensity,
the

persistence

symptoms

were

and
not

(Id. at

The doctor also noted that Plaintiff’s statements regarding
(Id.).

The ALJ
(AR

27
2

28

Dr. Bernabe examined Plaintiff’s
hands and fingers. (AR 224).
5

shoulders,

elbows,

wrists,

1

On March 5, 2013, a DDS physician reviewed the case on

2

reconsideration and affirmed that Plaintiff was not disabled.

3

(AR 71).

4

hypertension.

5

individual

6

credible.

7

stopped working because she was laid off, not because of the

8

medical problems she alleged.

The physician concluded that Plaintiff had “non-severe”
(AR 70).

statements
(AR

The DDS physician found Plaintiff’s

regarding

71).

The

her

symptoms

physician

observed

only

partially

that

Plaintiff

(Id.).

9
10

B.

Vocational Expert Testimony

11
12

Vocational Expert (“VE”) Sandra Fioretti testified at the

13

ALJ hearing regarding Plaintiff’s past work and the existence of

14

jobs

15

limitations.

16

work as “electronic assembler, developmental,” with a Dictionary

17

of Occupational Titles (“DOT”) listing of 726.261-010.

18

The

19

“semiskilled” work.

that

VE

Plaintiff

could

(AR 53-57).

opined

that

the

perform

given

her

functional

The VE identified Plaintiff’s past

occupation

constituted

(AR 53).

“light”

and

(AR 54).

20
21

The ALJ posed three hypotheticals to the vocational expert.

22

First, the ALJ asked whether an individual who was Plaintiff’s

23

age,

24

restricted to a “medium” range of work could perform Plaintiff’s

25

past work.3

had

the

same

(AR 54).

education

and

work

experience,

and

was

The VE opined that such a person would be

26
27
28

3

The hypothetical individual also could not climb ladders but
could handle frequent stairs, ramps, stooping or bending.
(AR
54).
6

1

able to perform Plaintiff’s past work.

2

asked the VE whether such an individual could perform Plaintiff’s

3

past work if the individual: could lift or carry fifty pounds

4

occasionally and twenty-five pounds frequently; be limited to

5

standing or walking four hours out of an eight hour day; could

6

sit without problems; and could use stairs and ramps occasionally

7

and bend and stoop occasionally.

8

individual

9

However, the VE testified that such an individual could perform

10

limited work as a hand packager, with 20,000 jobs nationally and

11

1,500

12

nationally and 1,600 locally.4

could

locally,

not

or

perform

as

a

(AR 54-55).

(AR 55).

Plaintiff’s

machine

feeder,

The ALJ then

The VE concluded the
past

work.

with

(Id.).

10,000

jobs

(AR 55-56).

13
14

Finally, the ALJ further limited the hypothetical individual

15

to

“light”

work,

16

occasionally

17

Plaintiff possessed any skills that would transfer to any work

18

within the third hypothetical.

19

Plaintiff did not possess any skills that would enable her to

20

perform as the individual in hypothetical three would.

21

\\

22

\\

23

\\

and

i.e.,
ten

lifting

pounds

or

carrying

frequently,

(AR 56).

and

twenty
asked

pounds
whether

The VE found that

(Id.).

24
25
26
27
28

4

The VE emphasized that because of the hypothetical individual’s
standing/walking limitation, she had to lower the number of
positions available.
(AR 55).
She further testified that the
limitation on standing and walking was not fully consistent with
the medium DOT category of full ability to stand and walk, so her
testimony and the reduced number of available positions was based
on her own training and experience. (AR 56).
7

1

C.

Plaintiff’s Testimony

2
3

In regards to her work history, Plaintiff testified that she

4

worked

at

a

“cord

factory”

for

twenty-five

5

factory closed in 2005.

6

a day care center in her home for some period of time after that.

7

(AR 37).

(AR 36-37).

years

until

the

She did babysitting and ran

8
9

Plaintiff

testified

that

beginning

in

March

2010,

she

10

started having “problems with [her] knees and shoulders.”

(AR

11

39).

12

she had arthritis.

13

her right knee, but also began feeling pain in her hip.

14

She went to the emergency room due to her hip pain, “but they

15

[were] so concerned about [her] blood pressure because [she] was

16

at stroke level . . . [so] they didn’t even do anything about the

17

hip.”

18

she used her husband’s cane to assist her in walking around the

19

house.

20

began in her right knee, she eventually starting feeling pain in

21

both knees and, even while testifying before the ALJ, stated,

22

“they’re burning.”

Plaintiff was examined by a doctor who informed her that

(Id.).

(Id.).

Plaintiff continued to feel pain in
(Id.).

While Plaintiff suffered from pain in her hip,

(AR 48).

Plaintiff testified that, although the pain

(AR 40).

23
24

Plaintiff further testified that sometime around March 2011,

25

when

her

insured

status

26

hypertension and swelling of the feet, which interfered with her

27

ability to work.

28

Plaintiff also suffered from “bad headaches.”

(AR 41).

lapsed,

she

had

“uncontrollable”

As a result of her hypertension,

8

(Id.).

Sometimes

1

while walking, Plaintiff’s knees would suddenly “pop” and “a leg

2

would give out.”5

3

killer “other than Ibuprofen,” but she only took it once because

4

(AR 42).

Plaintiff was once prescribed a pain

she did not like how it made her feel.6

(AR 50).

5
6

At the time of the hearing, Plaintiff alleged that her knees
to

“burn

constantly.”7

7

continued

8

testified that she suffer[ed] from pain in the shoulders8, and

9

elbow.

(AR 43-44).

(AR

42).

Plaintiff

also

Due to the pain in her shoulders, Plaintiff

10

could not cook, blow dry her hair, or lift items she could lift

11

prior to the pain onset.

12

could no longer perform a job similar to her cord factory job as

13

that would require her constantly being on her feet.

14

She also stated that she had not had any surgeries or worn a

15

brace on her knees, shoulder or hips.

(AR 45).

Plaintiff opined that she

(AR 47-48).

(AR 49-50).

16
17
18
19

5

Initially, the pain in her knee and leg was intermittent, but
by the time of the hearing, she was constantly in pain. (AR 42).
6

20
21
22
23
24
25
26
27
28

Plaintiff started taking Ibuprofen the year before the ALJ
hearing. (AR 50).
7

The pain in her knee also limits the length of time Plaintiff
can be on her feet. (AR 46). For example, Plaintiff testified
that she could not stand on her feet for two straight hours
preparing a Thanksgiving meal without taking a break to sit down.
(Id.). She can only be on her feet for about forty-five minutes
at a time, whereas in the past, Plaintiff could stand for two to
three hours at a time. (AR 46-47).
8

Plaintiff testified that this is due to the “constant use of
doing the same thing every day” when she worked at the cord
factory, which involved loading and lifting blades weighing fifty
pounds or more into heavy molds with cords.
Plaintiff did not
file a Worker’s Compensation Claim for this injury. (AR 43-44).
9

1

IV.

2

THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS

3
4

To

qualify

disability

claimant

impairment that prevents her from engaging in substantial gainful

7

activity and that is expected to result in death or to last for a

8

continuous period of at least twelve months.

9

157

423(d)(1)(A)).

The

(9th

Cir.

impairment

physical

1998)
must

or

must

6

721

determinable

a

demonstrate

715,

medically

benefits,

5

F.3d

a

for

mental

Reddick v. Chater,
(citing

render

42
the

U.S.C.

10

§

claimant

11

incapable of performing the work she previously performed and

12

incapable of performing any other substantial gainful employment

13

that exists in the national economy.

14

1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).

Tackett v. Apfel, 180 F.3d

15
16

To decide if a claimant is entitled to benefits, an ALJ

17

conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920.

18

The steps are:

19
20

(1)

Is

the

claimant

21

gainful activity?

22

disabled.

23

(2)

Is

the

presently

engaged

in

substantial

If so, the claimant is found not

If not, proceed to step two.

claimant’s

impairment

24

claimant is found not disabled.

25

severe?

If

not,

the

three.

26
27

(3)

If so, proceed to step

Does the claimant’s impairment meet or equal one of the
specific impairments described in 20 C.F.R. Part 404,

28
10

1

Subpart P, Appendix 1?

2

disabled.

3

(4)

If so, the claimant is found

If not, proceed to step four.

Is the claimant capable of performing his past work?

4

If so, the claimant is found not disabled.

5

proceed to step five.

6

(5)

Is the claimant able to do any other work?

7

claimant is found disabled.

8

If not,

If not, the

If so, the claimant is

found not disabled.

9
10

Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari,

11

262 F.3d 949, 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b)-

12

(g)(1) & 416.920(b)-(g)(1).

13
14

The claimant has the burden of proof at steps one through

15

four and the Commissioner has the burden of proof at step five.

16

Bustamante, 262 F.3d at 953-54.

17

affirmative duty to assist the claimant in developing the record

18

at every step of the inquiry.

19

claimant meets her burden of establishing an inability to perform

20

past

21

perform some other work that exists in “significant numbers” in

22

the national economy, taking into account the claimant’s RFC,

23

age, education, and work experience.

24

1100; Reddick, 157 F.3d at 721; 20 C.F.R. §§ 404.1520(g)(1),

25

416.920(g)(1).

26

vocational

27

Guidelines appearing in 20 C.F.R. Part 404, Subpart P, Appendix 2

28

(commonly known as “the grids”).

work,

the

Commissioner

Additionally, the ALJ has an

Id. at 954.

must

show

If, at step four, the

that

the

claimant

can

Tackett, 180 F.3d at 1098,

The Commissioner may do so by the testimony of a

expert

or

by

reference

11

to

the

Medical-Vocational

Osenbrock v. Apfel, 240 F.3d

1

1157, 1162 (9th Cir. 2001).

2

(strength-related) and non-exertional limitations, the Grids are

3

inapplicable and the ALJ must take the testimony of a vocational

4

expert.

5

(citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988)).

Moore

v.

Apfel,

When a claimant has both exertional

216

F.3d

864,

869

(9th

Cir.

2000)

6
7

V.

8

THE ALJ’S DECISION

9
10

The ALJ employed the five-step sequential evaluation process

11

and concluded that Plaintiff was not disabled within the meaning

12

of the Social Security Act.

13

found

14

activity during the period from her alleged onset date of March

15

15, 2010 through her date last insured of March 31, 2011.

16

24).

17

determinable

18

knees and right shoulder.”

19

that

20

did

21

impairments.9

22
23
24
25
26
27
28

that

Plaintiff

had

(AR 27-28).
not

engaged

in

At step one, the ALJ
substantial

gainful

(AR

At step two, the ALJ found that Plaintiff’s only medically
impairment

Plaintiff’s
not

was

“osteoarthritis
(AR 24).

osteoarthritis,

establish

a

“severe”

of

the

bilateral

However, the ALJ reasoned

while

medically

impairment

or

determinable,

combination

of

(AR 24).

9

A physical or mental impairment is considered “severe” if it
“significantly limits [the claimant’s] physical or mental ability
to do basic work activities.” 20 C.F.R. § 404.1520(c). The ALJ
wrote that “basic work activities” are the abilities and
aptitudes necessary to do most jobs, including physical functions
such as walking, standing, lifting, pushing, pulling, reaching,
carrying, handling, or sitting; capacities for seeing, hearing
and speaking; understanding, carrying out and remembering simple
instructions; use of judgment; responding appropriately to
supervision, co-workers and usual work situations; and dealing
with changes in a routine work setting. (AR 24-25).
12

1

The

ALJ

concluded

that

although

Plaintiff’s

medically

2

determinable impairments could have been reasonably expected to

3

produce the alleged symptoms, Plaintiff’s statements concerning

4

the intensity, persistence and limiting effects of the alleged

5

symptoms were not entirely credible.

6

although Plaintiff reported on a Disability Report and during the

7

hearing

8

repeatedly denied headaches to her treating physicians.

9

230 (note indicates no “HA” or headache), 246 (same)).

that

she

suffered

alleged

For example,

debilitating

12

procedure

13

requiring amputation of a limb.

14

to comply with her prescribed medications10 and failed to adhere

15

to her suggested diet.

16

ALJ to reject Plaintiff’s subjective testimony.

is

there

evidence

(AR 25).

(AR 26).

right

Moreover,

consideration,” but there is no mention of such a drastic medical
nor

her

(AR 25,

11

file

of

she

Plaintiff

the

amputation

headaches,

10

in

that

from

(AR 25).

arm

of

a

was

“a

condition

Plaintiff also failed

These inconsistencies lead the

17
18

In

reaching

his

conclusion,

the

ALJ

gave

“significant

19

weight” to Dr. Bernabe’s opinion because Dr. Bernabe “ha[d] the

20

expertise to evaluate and assess [Plaintiff’s] condition . . .

21

[and]

22

[Plaintiff].”

Dr.

Bernabe
(AR

physically
27).

The

examined
ALJ

and

opined

objectively
that

Dr.

tested

Bernabe’s

23
10

24
25
26
27
28

Plaintiff was prescribed narcotic pain medication, which she
only used once (three years before the ALJ hearing) because she
did not like the way it made her feel. (AR 26, 50). Plaintiff
took Ibuprofen instead. (AR 49-50). There is no indication that
she requested a different kind of narcotic pain medication. (AR
26).
Additionally, no aggressive treatment was recommended or
anticipated for Plaintiff’s osteoarthritis or hypertension.
(Id.).
Thus, the ALJ concluded that Plaintiff’s symptoms were
not as severe as alleged.
13

1

opinion was “consistent and reasonable in light of the record as

2

a whole.”

3

State agency physicians, giving those opinions “great” weight.

4

(Id.).

5

assessments

6

“highly credible because they are supported by objective medical

7

evidence,

8

treatment for her conditions.”

(Id.).

The

ALJ

The ALJ also considered the opinions of two

held

regarding

which

that

the

Plaintiff’s

shows

[Plaintiff]

State

agency

functional

received

physicians’

limitations

only

are

conservative

(Id.).

9
10

The

ALJ

concluded

that

Plaintiff

failed

to

establish

11

disability on or before the date last insured, March 21, 2011.

12

(AR 26). Before March 31, 2011, Plaintiff sought treatment for

13

hypertension, but denied chest pain, shortness of breath, edema,

14

headaches

15

hypertension

16

minimized by performing strengthening exercises, wearing better

17

shoes and taking prescribed medications.

18

did not adhere to the medical advice provided, the ALJ discounted

19

the severity of her symptoms.

and

weakness.11

remained

(Id.).

uncontrolled,

her

Although
pain

Plaintiff’s

could

(Id.).

have

been

As Plaintiff

(Id.).

20
21

In sum, the ALJ found that Plaintiff’s physical impairments,

22

considered singly and in combination, did not significantly limit

23

Plaintiff’s ability to perform basic work activities.

24

Accordingly, Plaintiff was not under a disability as defined by

25

20 C.F.R. §404.1520(c).

26
27
28

(AR 27).

(AR 27).

11

The ALJ also considered Plaintiff’s history of obesity as a
contributing factor to her co-existing impairments, but found
there was no specific or quantifiable impact on pulmonary,
musculoskeletal, endocrine, or cardiac functioning. (AR 26).
14

1

VI.

2

STANDARD OF REVIEW

3
4

Under 42 U.S.C. § 405(g), a district court may review the

5

Commissioner’s decision to deny benefits.

6

aside

7

findings

8

substantial evidence in the record as a whole.”

9

Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (citing Tackett,

10

180 F.3d at 1097); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir.

11

1996)(citing Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)).

the

Commissioner’s

are

based

on

denial

legal

of

error

“[The] court may set

benefits
or

are

when
not

the

ALJ’s

supported

by

Aukland v.

12
13

“Substantial evidence is more than a scintilla, but less

14

than a preponderance.”

15

v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)).

16

evidence which a reasonable person might accept as adequate to

17

support a conclusion.”

18

evidence supports a finding, the court must “‘consider the record

19

as a whole, weighing both evidence that supports and evidence

20

that detracts from the [Commissioner’s] conclusion.’”

21

257 F.3d at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th

22

Cir.

23

affirming

24

substitute its judgment for that of the Commissioner.

25

157 F.3d at 720-21 (citing Flaten v. Sec’y of Health & Human

26

Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)).

27

\\

28

\\

1993)).
or

If

the

reversing

Reddick, 157 F.3d at 720 (citing Jamerson

(Id.).

To determine whether substantial

evidence
that

It is “relevant

can

reasonably

conclusion,

15

the

Aukland,

support
court

either

may

not

Reddick,

1

VII.

2

DISCUSSION

3
4

Plaintiff

challenges

the

ALJ’s

decision

on

two

grounds.

5

First, Plaintiff asserts that the ALJ erred in determining that

6

she suffers no more than a de minimis impairment.

7

Support of Plaintiff’s Complaint (“MSC”), Dkt. No. 10, at 4).

8

Plaintiff contends that the ALJ failed to give appropriate weight

9

to the medical evidence, which shows that she suffered from a

10

severe impairment that erodes her residual functional capacity.

11

(Id. at 6).

(Memorandum in

12
13

Second, Plaintiff asserts that the ALJ erred in determining

14

her

credibility.

15

primary basis for disability was due to her knee pain, not her

16

headaches, and the fact that she did not report her headaches to

17

her providers is irrelevant.

18

provide

19

testimony.

legally

(Id.

at

sufficient

6).

Plaintiff

(Id. at 8).
reasons

for

contends

that

her

The ALJ also did not
rejecting

Plaintiff’s

(Id.).

20
21

This Court disagrees with Plaintiff’s contentions.

First,

22

substantial evidence supports the ALJ’s findings regarding the

23

non-severity of Plaintiff’s impairments.

24

were erroneous, however, the error was harmless and the decision

25

remains legally valid.

26

F.3d 1050, 1054 (9th Cir. 2006) (harmless error rule applies to

27

review

28

Furthermore, the decision provided clear and convincing reasons

of

Even if those findings

See Stout v. Comm’r Soc. Sec. Admin., 454

administrative

decisions

16

regarding

disability).

1

for rejecting Plaintiff’s subjective testimony about her pain or

2

objective evidence of her mental health status.

3

the reasons discussed below, the ALJ’s Decision is AFFIRMED.

Accordingly, for

4
5

A.

6

Substantial

Evidence

Supports

The

ALJ’s

Finding

of

Non-

ALJ

must

Severity

7
8
9

At

step

determine

two

of

whether

the

the

sequential

claimant

has

a

the

severe

of

11

performing

basic

12

Yuckert, 482 U.S. 137, 141 (1987) (plaintiff bears burden of

13

proving

14

impairments which significantly limits her physical or mental

15

ability to do basic work activities).

16

de

17

Smolen,

18

impairments

19

establishes a slight abnormality that has “no more than a minimal

20

effect on an individual’s ability to work.”

21

85-28,

22

affirmed

23

treating or examining doctors ever state that the claimant is

24

disabled,

25

determinable symptoms.

26

(9th Cir. 1999) (finding no evidence to support a claim that

27

impairments

28

examining physicians never indicated that appellant was disabled,

minimis

from

screening

80

F.3d

WL

be

1290.
found

56856,

were

if

the

to
An

“not

at

non-severity

even

any

device

at

can

1985
a

suffers

activities.

*3

MSC

at

impairment

dispose

of

impairment
severe”

where

claimant

3;

or

her

see

from

Bowen

combination

v.

of

The step two inquiry is a

(1985).

finding

limiting

or

combination

work

significantly

impairment

10

she

impairments

evaluation,

groundless
or

only

The
none

suffers

claims.

combination
if

the

of

evidence

(Id.); see also SSR
Ninth
of

Circuit

the

some

has

claimant’s

apparent

or

Verduzco v. Apfel, 188 F.3d 1087, 1089

“severe”

where

17

appellant’s

treating

and

1

even

2

pressure and arthritis).

3

two” may be affirmed where there is a “total absence of objective

4

evidence of severe medical impairment.”

5

F.3d 683, 686-87 (9th Cir. 2005).

6

insufficient

7

Colvin, 580 F. App’x 530, 531 (9th Cir. 2014).

though

he

for

clearly

finding

suffered

from

diabetes,

high

blood

A finding of “no disability at step

a

Webb v. Barnhart, 433

A mere diagnosis alone is

“severe”

impairment.

Febach

v.

8
9

While it appears that doctors prescribed “Norco” for pain

10

after

Plaintiff’s

January

23,

2010

emergency

room

visit,

(AR

11

220), Plaintiff generally took only Ibuprofen for pain.

12

51).

13

because she “did not like how it made [her] feel.”12

14

Moreover, Plaintiff’s doctors suggested strengthening exercises

15

and wearing better shoes as treatment for her condition.

16

243).

17

inflammatory drugs suggest that Plaintiff’s symptoms are not as

18

severe as alleged.

(AR 49-

Plaintiff refused to take stronger prescribed pain medicine
(AR 49-50).

(AR

The conservative treatment and use of non-steroidal anti-

(AR 26).

19
20

Furthermore,

no

aggressive

treatment

was

recommended

or

21

anticipated for Plaintiff’s osteoarthritis or her hypertension.

22

There is no objective evidence that these conditions more than

23

minimally

24

basic work activities before or after the date last insured.

25

\\

26

\\

impacted

Plaintiff’s

ability

to

physically

perform

27
12

28

Plaintiff admits she does not like medication and “take[s] the
pain as long as [she] can.” (AR 51).
18

1

The

2

consultative

3

determined that Plaintiff should be able to lift and carry with

4

no restrictions, be able to stand and walk up to six hours of an

5

eight-hour

6

Furthermore, she did not require assistive devices.13

7

49, 226).

8

agency physicians and gave those opinions “great” weight.

9

27).

ALJ

gave

“significant”

examiner

day

and

Dr.

have

weight

Bernabe.

no

to

(AR

problems

the

27).

opinion
Dr.

sitting.

of

Bernabe

(AR

226).

(AR 27, 48-

The ALJ also considered the opinions of two State
(AR

The State agency physicians reviewed the medical evidence

10

and concluded that there was no evidence of Plaintiff’s having a

11

severe impairment. (AR 27, 65, 73).14

12

an impairment is “not severe” may supply a basis for an ALJ to

13

similarly conclude that an impairment is not severe.

14

F. App’x. at 531 (affirming ALJ’s reliance on three doctors’

15

conclusions that claimant’s depression was not severe).

Reports by physicians that

Febach, 580

16
17

The total absence of objective evidence of a severe medical

18

impairment

supported

19

Plaintiff’s impairments were not severe.

20

However,

21

erroneous, the error was harmless, as discussed more fully below.

22

\\

23

\\

even

if

the

the

ALJ’s

ALJ’s

step

two

determination

that

Webb, 433 F.3d at 646.

determination

at

step

two

was

24
25
26
27
28

13

Plaintiff testified that she used her husband’s cane for only
one day in 2013. (AR 48-49).
14

The Disability Determination and Transmittal Forms identify a
“Reg-Basis Code” of F2 (AR 65, 73), which stands for a nonsevere
impairment.
See
POMS
DI
26510.045(a),
available
at
https://secure.ssa.gov/apps10/poms.nsf/lnx/0426510045
19

1

B.

To

2

The

Extent

The

ALJ

Erred

In

Assessing

Plaintiff’s

Physical Impairments, Any Error Was Harmless

3
4

Even if the ALJ erred in finding Plaintiff’s impairments

5

non-severe at step two, any error would be harmless.

6

is on the party claiming error to demonstrate not only the error,

7

but also that it affected his ‘substantial rights,’ which is to

8

say, not merely his procedural rights.”

9

F.3d 1047, 1054 (9th Cir. 2012).
remand

for

error,

a

“The burden

Ludwig v. Astrue, 681

Therefore, in deciding whether

10

to

reviewing

court

must

consider

“an

11

estimation of the likelihood that the result would have been

12

different.”

Id. at 1055.

13
14

The evaluation of impairments at step two is a de minimis

15

test intended to eliminate the most minor of impairments.

16

Webb, 433 F.3d at 687 (step two is a “de minimis threshold”).

17

ALJ errors in social security cases are harmless if they are

18

“inconsequential

to

19

Brown-Hunter

Colvin,

20

(quoting Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090,

21

1098 (9th Cir. 2014).

v.

the

ultimate
806

nondisability

F.3d

487,

492

See

determination.”

(9th

Cir.

2015)

22
23

The

court

will

24

benefits

“only

if

25

evidence

in

26

error.”

Marsh v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015).

27

Even where the ALJ reaches a nondisability finding for invalid

28

reasons, the court will not reverse the ALJ’s decision if the

the

set

the

aside

denial

a
is

administrative

20

denial

of

unsupported

record

or

is

social
by

security

substantial

based

on

legal

1

error was harmless.

2

533

3

credibility finding for harmless error, citing Batson v. Comm’r,

4

359 F.3d 1190, 1195-97 (9th Cir. 2004)).

5

in

6

different decision absent any error[;] . . . it is whether the

7

ALJ’s decision remains legally valid, despite such error.”

8

see also Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012)

9

(court “must uphold the ALJ’s findings if they are supported by

F.3d

this

1155,

context

See Carmickle v. Comm’r Soc. Sec. Admin.,

1162

is

not

(9th

Cir.

whether

2008)

the

(reviewing

adverse

“[T]he relevant inquiry
ALJ

would

have

made

a

Id.;

10

inferences reasonably drawn from the record”).

Moreover, even

11

though courts apply the harmless error doctrine cautiously in

12

social security cases, no “rigid rule” applies to the degree of

13

certainty required to conclude that an ALJ’s error was harmless.

14

Marsh, 792 F.3d at 1173.

15

“the circumstances of the case show a substantial likelihood of

16

prejudice” from the error, remand is not appropriate where the

17

error’s harmlessness is clear.

18

888 (9th Cir. 2011).

Although remand is appropriate where

McLeod v. Astrue, 640 F.3d 881,

19
20

Here, even if the ALJ had found Plaintiff’s condition to be

21

severe at step two, the ultimate result would not have been

22

different.

23

hypothetical person with Plaintiff’s age, education and prior

24

work experience who was restricted to a medium range of work and

25

some postural restrictions could still perform Plaintiff’s past

26

work as an electronic assembler.

(AR 53-55).

27

testified

person

28

restrictions could perform other work existing in significant

At

that

the

a

ALJ

hearing,

hypothetical

21

the

VE

testified

with

that

a

The VE further
even

greater

1

numbers in the regional and national economy.

2

other jobs existing in the national economy);

3

Comm’r of Soc. Sec. Admin., 740 F.3d 519, 527-29 (9th Cir. 2014)

4

(25,000

5

above,

6

functional limitations at all was Dr. Bernabe, who determined

7

that Plaintiff could lift and carry with no restrictions, could

8

stand and walk up to 6 hours of an 8 hour day, and had no

9

restriction on sitting.

10

jobs
the

nationally
only

doctor

is

a

who

significant
found

that

(AR 55-56) (30,000
See Gutierrez v.

number).

As

Plaintiff

noted

had

any

Dr. Bernabe found no other significant

exertional or non-exertional limitations.

(AR 226).

11
12

Accordingly,

even

if

the

ALJ

had

found

Plaintiff’s

13

hypertension or knee pain to be “severe” impairments, based only

14

upon Plaintiff’s testimony, he still would have found her not

15

disabled based upon a combination of subjective testimony and

16

medical evidence.15

17

to the VE, the ALJ asked the VE if an individual with Plaintiff’s

18

age, education, prior work experience, limited to a medium range

19

of work, no ladders, occasional stairs, occasional stooping or

20

bending,

21

pounds frequently, but limited to standing or walking only four

22

hours out an eight hour day, could perform other work.

23

testified that such an individual could work as a hand packager

who

could

(AR 226).

lift

or

In the second hypothetical posed

carry

50

pounds

occasionally,

25

The VE

24
25
26
27
28

15

The regulations define medium work as lifting no more than 50
pounds at a time with frequent lifting or carrying of objects
weighing up to 25 pounds. A full range of medium work requires
standing or walking, off and on, for a total of approximately 6
hours in an 8-hour workday.” Social Security Ruling (SSR) 83-10,
1983 SSR LEXIS 30.
22

1

(20,000

2

nationally).

jobs

nationally)

or

a

machine

feeder

(10,000

jobs

(AR 53-56).

3
4

Had the ALJ reached steps five of the disability analysis,

5

the VE’s testimony would have constituted substantial evidence

6

supporting a non-disability finding.

7

1163 (VE testimony constitutes substantial evidence to support

8

ALJ’s vocational findings).

9

legally valid,” regardless of any alleged step two error, the

10

See Osenbrock, 240 F.3d at

Because the ALJ’s decision “remains

ALJ’s decision must be affirmed.

Carmickle, 533 F.3d at 1162.

11
12

C.

13

The ALJ Provided Clear And Convincing Reasons For Rejecting
Plaintiff’s Subjective Testimony

14
15

When assessing a claimant’s credibility, the ALJ must engage

16

in a two-step analysis.

17

v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)).

18

must

19

impairment that could reasonably produce the symptoms alleged.

20

(Id.).

21

testimony,

22

(Id.).

23

impairment, the ALJ may not discredit a claimant’s testimony on

24

the severity of her pain because the degree of pain alleged is

25

not supported by objective medical evidence.

26

400 F.3d 676, 680 (9th Cir. 2005); Bunnell v. Sullivan, 947 F.2d

27

341, 346-47 (9th Cir. 1991).

determine

if

Molina, 674 F.3d at 1112 (citing Vasquez

there

is

objective

medical

First, the ALJ
evidence

of

an

If there is such evidence, to reject the claimant’s

If

the

ALJ

must

claimant

give

produces

clear

and

objective

convincing
medical

reasons.

evidence

Burch v. Barnhart,

An ALJ must provide “specific,

28
23

of

1

cogent reasons for the disbelief.”

2

1229, 1231 (9th Cir. 1990).

Rashid v. Sullivan, 903 F.2d

3
4

In assessing the claimant’s testimony, the ALJ may consider:

5
6

(1)

Ordinary

techniques

of

credibility

evaluation,

7

such as the claimant’s reputation for lying, prior

8

inconsistent statements concerning the symptoms,

9

and other testimony by the claimant that appears

10

less than candid;

11

(2)

Unexplained or inadequately explained failure to

12

seek treatment or to follow a prescribed course of

13

treatment; and

14

(3)

The claimant’s daily activities.

15
16

Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014).

17
18

Here, the ALJ found that Plaintiff’s medically determinable

19

impairments could have been reasonably expected to produce the

20

alleged

21

Plaintiff’s statements concerning the severity and persistence of

22

the symptoms are not entirely credible.

23

clear and convincing reasons for rejecting Plaintiff’s testimony:

24

(1) Plaintiff’s inconsistent statements concerning her symptoms

25

or

26

(2) repeated noncompliance in following a prescribed course of

27

treatment.

28

\\

symptoms.

statements

(AR

25).

contradicted

However,

by

(AR 25-27).

24

the

the

(Id.).

medical

ALJ

found

that

The ALJ provided

evidence;

and

1

1. Conflicting Statements Regarding Plaintiff’s Symptoms

2
3

First,

the

ALJ

stated

that

discrepancies

in

Plaintiff’s

4

statements regarding her symptoms diminished the persuasiveness

5

of her testimony.

6

Plaintiff reported on a Disability Report and during the ALJ

7

hearing

8

repeatedly denied headaches to her treating physicians.

9

238, 246, 251, 254); see Greger v. Barnhart, 464 F.3d 968, 970,

10

972 (9th Cir. 2006) (ALJ properly rejected plaintiff’s subjective

11

testimony because plaintiff failed to report shortness of breath

12

or chest pain to his doctors).

that

she

(AR 25).

For instance, the ALJ observed that

suffered

from

debilitating

headaches,

but

(AR 230,

13
14

Furthermore, Plaintiff alleged that “they want to amputate

15

my right arm,” in her disability application, but there is no

16

mention of an amputation procedure in her medical files, nor is

17

there evidence of a condition that would require amputation of a

18

limb.

19

mention of such a drastic medical procedure.

20

extreme nature of this statement was a reasonable ground for the

21

ALJ to rely upon in rejecting Plaintiff’s credibility.

(AR 206).

The ALJ noted that the record contained no
(AR 25).

The

22
23

2. Failure To Follow Prescribed Course of Treatment

24
25

Second, the ALJ noted that Plaintiff’s repeated failure to

26

take prescribed medicines and treatments further undermined the

27

credibility of her subjective complaints.

28
25

(AR 25).

For example,

1

Plaintiff failed to comply with her prescribed medications and

2

failed to adhere to her suggested diet.

(AR 239, 240, 242, 247).

3
4

To

treat

Plaintiff’s

pain,

she

was

told

to

perform

5

strengthening exercises and to obtain better shoes.

6

She was prescribed narcotic pain medication.

7

However,

8

because she did not like how it made her feel.

9

Plaintiff opted to take non-steroidal anti-inflammatory drugs.

she

had

not

taken

the

(AR 243).

(AR 26, 50-51).

medication

for

several

(Id.).

years

Instead,

10

(AR 50).

There is no indication that Plaintiff requested a

11

different kind of narcotic pain medication, thereby indicating a

12

possible unwillingness to do what was necessary to improve her

13

condition.

(AR 26).

14

1039

Cir.

2008)

15

claimant’s]

pain

was

16

[because] he did not seek an aggressive treatment program and did

17

not seek an alternative or more-tailored treatment program after

18

he

19

effects.”); Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007)

20

(“[I]f a claimant complains about disabling pain but fails to

21

seek treatment, or fails to follow prescribed treatment, for the

22

pain, an ALJ may use such failure as a basis for finding the

23

complaint unjustified or exaggerated.”).

24

provided

25

subjective pain testimony.

26

\\

27

\\

28

\\

(9th

stopped

taking

clear

and

See Tommasetti v. Astrue, 533 F.3d 1035,

an

(ALJ
not

properly

as

all-disabling

effective

convincing

“inferred

medication

reasons

26

as

due

that
he

to

[the

reported

mild

side

Accordingly, the ALJ
to

reject

Plaintiff’s

1

VIII.

2

CONCLUSION

3
4
5

For the foregoing reasons, IT IS ORDERED that Judgment be
entered AFFIRMING the decision of the Commissioner.

6
7

DATED:

December 29, 2015

8
/S/
__________
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE

9
10
11
12
13
14
15

NOTICE

16

THIS DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS/NEXIS,

17

WESTLAW OR ANY OTHER LEGAL DATABASE.

18
19
20
21
22
23
24
25
26
27
28
27