Jennifer Jones v. Carolyn W. Colvin
Filing
27
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 request for remand, and DISMISSING this action with prejudice. (See Order for details) (bem)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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JENNIFER JONES,
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 16-1823-JPR
)
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) MEMORANDUM DECISION AND ORDER
) AFFIRMING COMMISSIONER
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I.
PROCEEDINGS
Plaintiff seeks review of the Commissioner’s final decision
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denying her application for supplemental security income benefits
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(“SSI”).
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undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c).
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matter is before the Court on the parties’ Joint Stipulation,
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filed June 30, 2017, which the Court has taken under submission
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without oral argument.
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Commissioner’s decision is affirmed.
The parties consented to the jurisdiction of the
For the reasons stated below, the
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The
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II.
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BACKGROUND
Plaintiff was born in 1981.
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211.)
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85, 228.)
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and a teaching assistant.
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(Administrative Record (“AR”)
She has a college degree in botany and biochemistry.
(AR
She has worked as a university laboratory technician
(AR 228.)
On March 26, 2013, Plaintiff filed an application for SSI,
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alleging she had been disabled since April 1, 2010 (AR 211),
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because of a crushed leg, depression, bipolar disorder, and
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schizotypal personality disorder (see AR 135).
After her
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application was denied initially and upon reconsideration (AR
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135, 168), she requested a hearing before an Administrative Law
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Judge (AR 146).
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which Plaintiff, who was represented by counsel, testified, as
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did her father and a vocational expert.
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written decision issued on January 16, 2015, the ALJ found
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Plaintiff not disabled.
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and submitted additional medical evidence.
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47-63.)
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finding that the additional evidence did not provide a basis for
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changing the ALJ’s decision.
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the new evidence be made part of the administrative record.
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(AR 6.)
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III. STANDARD OF REVIEW
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A hearing was held on November 26, 2014, at
(AR 64-79.)
(AR 80-108.)
In a
Plaintiff requested review
(See AR 15-29, 45,
On June 22, 2016, the Appeals Council denied review,
(AR 1-7.)
The council ordered that
This action followed.
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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The ALJ’s findings and
1
v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).
Substantial
2
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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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
Richardson, 402 U.S. at
To determine whether
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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
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substitute its judgment” for the Commissioner’s.
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IV.
Reddick v. Chater, 157 F.3d 715,
“If the evidence can reasonably support
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.
The Five-Step Evaluation Process
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The ALJ follows a five-step sequential evaluation process to
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assess whether a claimant is disabled.
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§ 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir.
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1995) (as amended Apr. 9, 1996).
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Commissioner must determine whether the claimant is currently
20 C.F.R.
In the first step, the
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engaged in substantial gainful activity; if so, the claimant is
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not disabled and the claim must be denied.
§ 416.920(a)(4)(i).
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If the claimant is not engaged in substantial gainful
4
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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§ 416.920(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.
§ 416.920(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.
§ 416.920(a)(4)(iv).
The claimant has the burden of
Drouin, 966
If the claimant meets that burden, a prima facie
Id.
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RFC is what a claimant can do despite existing exertional
and nonexertional limitations. § 416.945; 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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If that happens or if the claimant has no past relevant
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work, the Commissioner then bears the burden of establishing that
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the claimant is not disabled because she can perform other
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substantial gainful work available in the national economy.
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§ 416.920(a)(4)(v); Drouin, 966 F.2d at 1257.
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comprises the fifth and final step in the sequential analysis.
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§ 416.920(a)(4)(v); Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d
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at 1257.
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B.
That determination
The ALJ’s Application of the Five-Step Process
At step one, the ALJ found that Plaintiff had not engaged in
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substantial gainful activity since March 26, 2013, the
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application date.
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had only one severe medically determinable impairment: “fracture
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of the left lower extremity.”
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a medically determinable mental impairment, mood disorder, but
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concluded that it was “nonsevere.”
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found that she did not have an impairment or combination of
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impairments falling under a Listing, “specifically consider[ing]
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listing 1.06.”
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(AR 69.)
At step two, he concluded that she
(Id.)
He also found that she had
(Id.)
At step three, he
(AR 70.)
At step four, the ALJ found that Plaintiff had the RFC to
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perform a limited range of light work: she could “lift and/or
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carry up to 20 pounds occasionally and 10 pounds frequently,”
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“stand and/or walk no more than four hours in an eight-hour
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workday,” “sit without restriction,” and “frequently perform
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pushing or pulling with the upper extremities.”
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“require[d] a cane for long-distance ambulation”; could
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“occasionally climb, balance, kneel and crawl”; and “should avoid
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jobs requiring more than occasional negotiation of uneven
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(Id.)
She
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terrain, unprotected heights, or the climbing of ladders, ropes
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or scaffolds.”
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concluded that she could not perform any past relevant work.
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73.)
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experience, and [RFC],” he determined that she could successfully
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perform numerous light and sedentary jobs available in the
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national economy.
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disabled.
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V.
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(AR 70-71.)
Based on the VE’s testimony, the ALJ
(AR
At step five, however, given her “age, education, work
(AR 74-75.)
Thus, the ALJ found Plaintiff not
(AR 75.)
DISCUSSION
Plaintiff argues that the ALJ erred in (1) evaluating the
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credibility of her subjective symptom statements, (2) denying the
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applicability of Listing 1.06 to her leg impairment, and (3)
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finding her mental impairment nonsevere.
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For the reasons discussed below, the ALJ did not err.
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A.
(See J. Stip. at 4.)
The ALJ Properly Assessed the Credibility of
Plaintiff’s Subjective Symptom Statements
The ALJ found that Plaintiff’s statements “concerning the
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intensity, persistence and limiting effects” of her physical and
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mental symptoms were “not entirely credible.”
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Plaintiff argues that this finding was improper because the ALJ
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failed to sufficiently support it.
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ALJ, however, based his credibility assessment on clear and
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convincing reasons.
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1.
(AR 71.)
(See J. Stip. at 16-22.)
The
Accordingly, remand is not warranted.
Applicable law
An ALJ’s assessment of the credibility of a claimant’s
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allegations concerning the severity of her symptoms is entitled
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to “great weight.”
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Cir. 1989) (as amended); Nyman v. Heckler, 779 F.2d 528, 531 (9th
See Weetman v. Sullivan, 877 F.2d 20, 22 (9th
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1
Cir. 1985) (as amended Feb. 24, 1986).
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‘required to believe every allegation of disabling pain, or else
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disability benefits would be available for the asking, a result
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plainly contrary to 42 U.S.C. § 423(d)(5)(A).’”
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Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair v.
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Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).
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“[T]he ALJ is not
Molina v.
In evaluating a claimant’s subjective symptom testimony, the
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ALJ engages in a two-step analysis.
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at 1035-36; see also SSR 96-7p, 1996 WL 374186 (July 2, 1996).2
See Lingenfelter, 504 F.3d
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“First, the ALJ must determine whether the claimant has presented
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objective medical evidence of an underlying impairment [that]
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could reasonably be expected to produce the pain or other
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symptoms alleged.”
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objective medical evidence exists, the ALJ may not reject a
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claimant’s testimony “simply because there is no showing that the
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impairment can reasonably produce the degree of symptom alleged.”
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Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) (emphasis in
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original).
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Lingenfelter, 504 F.3d at 1036.
If such
If the claimant meets the first test, the ALJ may discredit
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the claimant’s subjective symptom testimony only if she makes
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specific findings that support the conclusion.
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Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010).
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affirmative evidence of malingering, the ALJ must provide “clear
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and convincing” reasons for rejecting the claimant’s testimony.
See Berry v.
Absent a finding or
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2
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Social Security Ruling 16-3p, 2016 WL 1119029, effective
March 28, 2016, rescinded SSR 96-7p, which provided the framework
for assessing the credibility of a claimant’s statements. SSR
16-3p was not in effect at the time of the ALJ’s decision in this
case, however.
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Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (as
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amended); Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090,
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1102 (9th Cir. 2014).
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(1) ordinary techniques of credibility evaluation, such as the
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claimant’s reputation for lying, prior inconsistent statements,
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and other testimony by the claimant that appears less than
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candid; (2) unexplained or inadequately explained failure to seek
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treatment or to follow a prescribed course of treatment; (3) the
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claimant’s daily activities; (4) the claimant’s work record; and
The ALJ may consider, among other factors,
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(5) testimony from physicians and third parties.
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Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (as
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amended); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir.
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2002).
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substantial evidence in the record, the reviewing court “may not
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engage in second-guessing.”
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Rounds v.
If the ALJ’s credibility finding is supported by
2.
Thomas, 278 F.3d at 959.
Relevant background
a.
Physical limitations
In 2010, Plaintiff fractured her left femur in a car crash
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and also sustained several fractures of her right leg.
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Though the record contains no documentation of treatment before
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March 2012 (see AR 71), the fractures apparently required
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multiple rounds of surgery (see AR 526).
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diagnosed with nonunion of the left-leg fracture and underwent
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corrective surgery.
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October 2012 she was able to walk and stand for “3-5 minutes”
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without assistance (AR 384), and in May 2013 she could “ambulate
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short distances [without] pain” (AR 310).
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throughout 2013 indicated that the fracture was healing but that
(AR 441-42.)
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(AR 526.)
In July 2012, she was
Following the surgery, in
Medical imaging
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union was still incomplete despite stable hardware.
2
AR 307 (May 2013), 544 (Dec. 2013).)
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indicated that the fractured femur was healing and had normal
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alignment, intact hardware, and “delayed union.”
5
2014), 604-05 (Mar. 2014), 608-09 (Jan. 2014).)
6
(See, e.g.,
By 2014, medical imaging
(AR 602 (May
In her June 7, 2013 Adult Function Report, Plaintiff
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indicated that standing was painful (AR 242), and in her November
8
20, 2013 Disability Report she stated that she could “no longer
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do things around the house like basic chores” (AR 274).
Her
10
report indicated, however, that she had no problem with personal
11
care and could prepare her own meals, wash dishes, go outside
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“once or twice a week,” use public transportation, and walk “a
13
few blocks” with crutches.
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and played music throughout the day.
15
(AR 243-45, 247.)
She also crocheted
(AR 246.)
In September 2013, Plaintiff was examined by consulting
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internist Ulin Sargeant.
(AR 526-30.)
She reported difficulty
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walking and said she used crutches “all the time,” “for
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everything even getting up from her bed.”
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reported that she did “not take any medications for the
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discomfort because she [did] not think that they help[ed] at
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all,” and she was “not getting any intervention,” including any
22
treatment, cortisone injections, or physical therapy.
(AR 526.)
She also
(Id.)
Dr. Sargeant observed that with crutches she walked at a
23
24
normal pace.
(AR 527.)
But when he asked her to walk or stand
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without crutches, she refused.
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her left knee beyond 10 degrees in a supine position but
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demonstrated a flexion of 90 degrees in a sitting position.
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529.)
(Id.)
She also refused to flex
(AR
Dr. Sargeant concluded that despite reported “discomfort
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1
in her lower extremities,” Plaintiff had “fairly good function”
2
walking with crutches, could even walk “briskly with [them],” and
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was “able to do a lot of activities more than [he] thought that
4
she could.”
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carry 20 pounds occasionally and 10 pounds frequently”; was “able
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to walk and stand four hours out of an eight-hour workday”; had
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“no restrictions” sitting; “should use a cane for long
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distances”; was “able to walk on uneven terrain, climb ladders,
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and work at heights occasionally”; and was “able to climb,
10
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(Id.)
He assessed that she was “able to lift and
balance, kneel, and crawl occasionally.”
(AR 530.)
Dr. Pamela Ombres, a consulting physician3 who reviewed
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Plaintiff’s medical records in October 2013, noted that a few
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days after her exam with Dr. Sargeant, Plaintiff “called in
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stating she was nervous at [the] exam and told them she uses
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crutches all the time[, but] she uses crutches about 50% of [the]
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time, mostly out of the house” and not while at home.
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Dr. Ombres found that Plaintiff was “capable of a sedentary RFC.”
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(AR 117.)
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for a total of[] 2 hours,” could “[s]it (with normal breaks) for
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a total of[] [a]bout 6 hours in an 8-hour workday,” and required
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a “[c]rutch for long distance[s].”
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(AR 114.)
She could “[s]tand and/or walk (with normal breaks)
(Id.)
Dr. M. Gleason, a consulting doctor,4 reviewed Plaintiff’s
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Dr. Ombres has a specialty code of “28,” indicating
“[o]phthalmology.” (AR 109); see Program Operations Manual
System (POMS) DI 24501.004, U.S. Soc. Sec. Admin. (May 5, 2015),
https://secure.ssa.gov/poms.nsf/lnx/0424501004.
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4
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28
Dr. Gleason has a specialty code of “35,” indicating
“[p]lastic surgery.” (AR 121); see Program Operations Manual
System (POMS) DI 24501.004, U.S. Soc. Sec. Admin. (May 5, 2015),
https://secure.ssa.gov/poms.nsf/lnx/0424501004.
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1
medical records in February 2014 and reaffirmed her sedentary
2
RFC.
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walk (with normal breaks) for a total of[] 4 hours,” could “[s]it
4
(with normal breaks) for a total of[] [a]bout 6 hours in an 8-
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hour workday,” and required a “[c]rutch for long distance[s].”
6
(AR 129-30.)
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(AR 131.)
Dr. Gleason noted that she could “[s]tand and/or
At a December 2013 appointment, Plaintiff was found to have
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“normal” range of motion and “flexion/extension” in her left
9
knee, and she was advised to practice walking with one crutch.
10
(AR 545; see also AR 558.)
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normal range of motion in her left leg and was able to move her
12
knee 130 degrees (AR 609); she also “request[ed] a note stating
13
it’s ok to swim” (AR 543).
14
demonstrated “full” range of motion in her left knee and reported
15
walking two miles without pain (though she also reported walking
16
two blocks with some pain around the same time).
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In January 2014, she demonstrated
And at a March 2014 appointment, she
(AR 605.)
At her November 26, 2014 hearing, Plaintiff testified that
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she still had difficulty standing and walking.
19
Although she could stand and clean dishes at home for “short
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periods of time . . . pain free,” she felt pain whenever she
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walked any distance “without [her] crutches.”
22
testified that she did not feel pain when seated (AR 90) but also
23
testified that sitting for “more than an hour” was hard (AR 91).
24
She indicated that she applied for “dishwasher jobs,” “server
25
jobs,” and “clerical positions” but was not hired because she
26
lacked relevant experience.
(Id.)
She
(See AR 84-85.)
Plaintiff lived with her father, mother, and brother.
27
28
(AR 84.)
99.)
Her father testified at the hearing.
11
(AR 94.)
(AR
He stated
1
that Plaintiff did some household chores, such as vacuuming,
2
cleaning dishes, and laundry.
3
testimony concerned her mental health.
4
b.
5
(AR 95.)
But the majority of his
(See AR 94-100.)5
Mental limitations
The record contains no psychiatric or mental-health records
6
from before 2012 despite an alleged disability onset date of
7
April 2010.
8
indicate that she had undergone regular treatment for mental-
9
health problems since at least 2008.
(See AR 71.)
Plaintiff’s medical records, however,
(See AR 497.)
Throughout
10
2012 and 2013, Plaintiff attended regular therapy sessions with
11
clinical psychologist Joyce Handler.
12
sessions, Plaintiff discussed her history of psychiatric
13
hospitalizations, suicidal episodes, and feelings of depression.
14
(Id.)
15
brother, whom she identified as sources of her anger.6
16
e.g., AR 504 (in September 2012 she “became very angry [at her
17
mother] and started throwing things around . . . [and] biting
(AR 500-10.)
During those
She reported acting violently toward her mother and
(See,
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20
21
22
23
24
25
26
27
28
5
Plaintiff in passing criticizes the ALJ’s rejection of her
father’s hearing testimony. (See J. Stip. at 20-22.) His
testimony was given “some weight” by the ALJ, but only “insofar
as it corroborate[d]” Plaintiff’s symptom statements. (AR 73.)
As discussed below, because the ALJ found Plaintiff’s symptom
statements not fully credible (id.), a finding supported by
substantial evidence in the record, the ALJ’s partially adverse
treatment of her father’s testimony was not in error.
6
Indeed, her mother was apparently at least sometimes a
difficult person. She refused to participate in a family therapy
session in October 2012 because she was “very angry” at Plaintiff
and believed she was “destroy[ing]” their home. (AR 505.) That
same month, Plaintiff was hospitalized for a violent episode, and
when her mother came to visit, she was “very demanding and
intrusive,” “cursing and threatening staff,” and “had to be
escorted out twice.” (AR 399.)
12
1
her,” and in October 2012 she “reported becoming violent during
2
an argument with her brother”).)
3
reported “connecting with people at church,” “volunteering to
4
help with gardening at the church,” going “shopping with a new
5
friend she met at the church,” feeling “very badly about her
6
violent behavior,” seeming “more motivated than ever to stop,”
7
and realizing “she had been paranoid.”
8
9
Nonetheless, Plaintiff also
(AR 507-08.)
In March 2013, shortly before the application date, she was
admitted to the hospital for inpatient treatment for having
10
suicidal “plan[s] to hang herself or overdose on medications.”
11
(AR 319-34.)
12
and major depressive disorder.
13
been noncompliant with her medications and felt “like she
14
need[ed] a medication change.”
15
Prolixin7 or Trileptal8 was working, and she stopped taking
She reported having a history of bipolar disorder
(AR 323.)
She also said she had
(Id. (Plaintiff did not feel that
16
17
18
19
20
21
22
23
24
25
7
Prolixin is the name-brand version of fluphenazine, an
antipsychotic medication used to treat schizophrenia and such
psychotic symptoms as hallucinations, delusions, and hostility.
See Fluphenazine, MedlinePlus, https://medlineplus.gov/druginfo/
meds/a682172.html (last updated July 15, 2017).
26
8
27
28
Trileptal is the name-brand version of oxcarbazepine, an
anticonvulsant used to treat seizures and bipolar disorder. See
Oxcarbazepine, MedlinePlus, https://medlineplus.gov/druginfo/
meds/a601245.html (last updated Jan. 15, 2016).
13
1
Depakote,9 Topamax,10 Zyprexa,11 and Risperdal12 because of their
2
side effects); see also AR 374 (Plaintiff was noted in January
3
2013 to “frequently change her [medication] regimen” on her
4
own).)
5
treatment records throughout the rest of 2013 indicated she was
6
stable and compliant with the medication.
7
(Dec. 2013), 623 (Oct. 2013), 624 (Sept. 2013); see also AR 561
8
(Nov. 2013), 563 (Aug. 2013), 565 (July 2013), 567 (Apr. 2013).)
9
Treatment records throughout 2014 demonstrated the same.
Plaintiff was given new medications (AR 324), and her
(See, e.g., AR 622
(See,
10
e.g., AR 613 (Oct. 2014), 615 (July 2014), 617 (May 2014), 619
11
(Mar. 2014), 620 (Feb. 2014), 621 (Jan. 2014).)
12
apparently not hospitalized at any point between the application
13
date and the ALJ’s decision.
14
Plaintiff was
In her June 2013 function report, Plaintiff indicated that
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9
Depakote is the name-brand version of valproic acid, an
anticonvulsant used to treat mania. See Valproic Acid,
MedlinePlus, https://medlineplus.gov/druginfo/meds/a682412.html
(last updated July 15, 2017).
10
Topamax is the name-brand version of topiramate, an
anticonvulsant used to treat seizures, prevent migraines, and
manage alcohol dependence. See Topiramate, MedlinePlus,
https://medlineplus.gov/druginfo/meds/a697012.html (last updated
Jan. 15, 2015).
11
Zyprexa is the name-brand version of olanzapine, an
atypical antipsychotic used to treat the symptoms of
schizophrenia and bipolar disorder. See Olanzapine, MedlinePlus,
https://medlineplus.gov/druginfo/meds/a601213.html (last updated
June 15, 2017).
12
Risperdal is the name-brand version of risperidone, an
atypical antipsychotic used to treat the symptoms of
schizophrenia, mania, and such other behavioral problems as
aggression. See Risperidone, MedlinePlus, https://
medlineplus.gov/druginfo/meds/a694015.html (last updated July 15,
2017).
14
1
her “suicidal issues” impaired her concentration.
2
stated, however, that she was able to pay bills, handle savings
3
accounts, count change, use a checkbook, and go to church weekly.
4
(AR 245-46.)
5
(AR 246.)
6
on the phone.
7
capable of paying attention “long enough to work,” which was “no
8
different since [her 2010] car crash.”
9
(AR 242.)
She
She took part in church “to the fullest extent.”
She indicated that she spent time with others talking
(AR 246-47.)
She also reported that she was
(AR 247.)
In October 2013, Plaintiff was examined by consulting
10
psychiatrist Thaworn Rathana-Nakintara.
(AR 533-37.)
11
reported having “suicidal feeling[s]” and a history of “bipolar
12
disorder, depression, schizotypal personality disorder, and
13
schizoaffective disorder since 2008.”
14
reported having a history of psychiatric hospitalizations and
15
nonhospital psychiatric treatment, and she said she was on
16
medication and currently seeing a psychologist and psychiatrist.
17
(AR 534.)
18
from the hospital eight months [earlier].”
19
Rathana-Nakintara noted that Plaintiff had “adequate self-care
20
skills,” did “household chores,” “manage[d] her own money with
21
some help,” and could “go places by herself sometimes.”
22
535.)
23
good eye contact, and was alert and oriented.
24
Rathana-Nakintara diagnosed Plaintiff with mood disorder.
25
536.)
26
social functioning,” “no difficulties focusing and maintaining
27
attention,” and “no difficulties in concentration, persistence
28
and pace.”
(AR 533.)
Plaintiff
She also
She reported “feeling better since she was discharged
(AR 536.)
Dr.
(AR
She was also responsive during the examination, maintained
(Id.)
Dr.
(AR
Plaintiff demonstrated “no difficulties in maintaining
(AR 537.)
Dr. Rathana-Nakintara concluded that she
15
1
would have “no limitations performing simple and repetitive
2
tasks”; “no limitations performing detailed and complex tasks”;
3
“no difficulties [performing] work activities on a consistent
4
basis without special or additional supervision”; “no limitations
5
completing a normal workday or workweek due to her mental
6
condition”; “no limitations accepting instructions from
7
supervisors and interacting with coworkers and with the public”;
8
and “no difficulties [handling] the usual stresses, changes and
9
demands of gainful employment.”
(Id.)
Dr. Rathana-Nakintara
10
also noted that Plaintiff was “vulnerable to becom[ing] depressed
11
when she [was] very stressed” in her personal relationships but
12
“not at work.”
13
(Id.)
Also at this time Plaintiff’s medical records were reviewed
14
by consulting psychologist W. Miller Logan, who concluded that
15
she was not disabled.
16
she was moderately limited in her “ability to interact
17
appropriately with the general public,” “accept instructions and
18
respond appropriately to criticism from supervisors,” “get along
19
with coworkers or peers without distracting them or exhibiting
20
behavioral extremes,” and “maintain socially appropriate
21
behavior.”
22
limitations with “understanding and memory” or “sustained
23
concentration and persistence” (id.), and she was able to
24
“perform a full range of work activity from a cognitive
25
standpoint but would need a work setting where interactions with
26
coworkers, supervisors, and the public are brief and task
27
focused.”
28
Funkenstein, another consulting psychologist who reviewed
(AR 118.)
(AR 119.)
(AR 113-15, 118-20.)
Dr. Logan found that
But Dr. Logan also found that she had no
These findings were reaffirmed by Dr. D.
16
1
Plaintiff’s medical records, in February 2014.
2
(AR 127-28, 131-
33.)
3
At her November 2014 hearing, Plaintiff testified that she
4
was “very uncomfortable being around people” and had difficulty
5
working with others.
6
their pens” and coughed at her (id.), which caused her stress (AR
7
89).
8
local community college, where she noticed others “pen clicking”
9
and felt like she was being sexually harassed (she was not
(AR 84.)
She felt that others “click[ed]
She testified that she recently took a Spanish class at a
10
touched by other people but got “these strange tingly feelings”).
11
(AR 87-88.)
12
approximately three hours a week and was “very careful” not to
13
miss class.
14
received an “A+” in the course.13
15
Plaintiff attended the class for four months for
(Id.)
She worked with others on group projects and
(AR 87-89.)
Plaintiff’s father testified that because of school, she was
16
“leaving the house fairly frequently.”
17
she talked about “problems with students clicking pens” (id.) and
18
that after interacting with people outside the family, she
19
frequently reflected that she did not feel she “fit in” or would
20
“know what to say” (AR 96-97).
21
had “never been a particularly social person[,] she interacted
22
well with others” and was a self-motivated “super achiever.”
23
96, 98.)
24
3.
(AR 97.)
He noted that
He also testified that while she
(AR
Analysis
25
Plaintiff argues that the ALJ failed to specifically and
26
sufficiently support his determination that her testimony was
27
13
28
Although Plaintiff stated she took only one class (AR 8788), her father testified that she also took typing (AR 97).
17
1
only partially credible.
(J. Stip. at 16.)
Though she points to
2
medical evidence that supports her testimony (see id. at 16-18,
3
20-21), the substantial weight of the evidence looking at the
4
record as a whole undermines Plaintiff’s statements regarding
5
both her physical and mental functional limitations.
6
when the record would support a decision either way, a reviewing
7
court may not substitute its judgment for the Commissioner’s.
8
Reddick, 157 F.3d at 720-21.
Moreover,
9
The ALJ identified three reasons why he found Plaintiff not
10
fully credible: (1) the “extent” of her reported limitations was
11
“not fully supported by the objective evidence of record” (AR
12
73); (2) her activities of daily living were inconsistent with
13
her reported functional limitations (AR 71); and (3) her periods
14
of “symptom exacerbation are associated with periods of poor
15
medication compliance” (AR 73).
16
reason for discounting her credibility.
17
a.
18
19
Each was a legally sufficient
Reported limitations inconsistent with
objective evidence
First, the ALJ properly found some of Plaintiff’s symptom
20
statements lacking in credibility and unsupported by the record,
21
as to both her physical and mental functioning.
22
the ALJ, Plaintiff alleged that she had “difficulty with
23
standing/walking due to her leg impairment.”
24
hearing, she testified that she walked with crutches, would feel
25
pain while standing or walking, and had a “hard time sitting for
26
long.”
27
28
As identified by
(AR 71.)
At her
(AR 90-91.)
Plaintiff’s medical records, however, indicated that her
condition was improving and not disabling.
18
As the ALJ noted,
1
“[m]edical imaging” in early 2014 showed “stable alignment of the
2
femur,” “intact hardware,” and “stable overall alignment.”
3
73 (citing AR 602, 604, 608).)
4
throughout 2013 and 2014 showed that her left-femur fracture was
5
healing despite a delayed union, her hardware was consistently
6
intact and stable, and her left knee’s range of motion had
7
increased to full capacity.
8
able to walk and stand for “3-5 minutes” without assistance in
9
October 2012 (AR 384), could “ambulate short distances [without]
(AR
Indeed, medical examinations
(See, e.g., AR 307, 602.)
She was
10
pain” in May 2013 (AR 310), and — based on the September 2013
11
medical opinion of Dr. Sargeant, to which the ALJ gave “great
12
weight” (AR 73) and which Plaintiff does not directly challenge —
13
could walk, stand, and sit effectively.
14
Plaintiff told Dr. Sargeant she could not walk at all without
15
crutches (AR 526), she shortly thereafter acknowledged that she
16
had not told Dr. Sargeant the truth and used crutches only “50%
17
of [the] time” (AR 114).
18
Plaintiff’s refusal to even attempt walking without crutches for
19
Dr. Sargeant or to flex her knee for him.
20
(AR 530.)
Even though
This admission casts in a suspect light
Moreover, Plaintiff’s physical abilities continued to
21
improve following her July 2012 surgery.
22
achieved full range of motion in her left leg and had requested a
23
note approving her to swim, further demonstrating her increased
24
mobility.
25
walking two miles without pain.
26
have sometimes reported pain in her left leg (see, e.g., AR 84,
27
242, 536), her medical records indicated that she could
28
occasionally walk with lessening or no pain (see, e.g., AR 310,
By March 2014, she
(AR 543, 605; see also AR 545, 609.)
(AR 605.)
19
She reported
Though she appears to
1
530, 605).
2
that she did not take medication for the pain or seek treatment
3
or therapy, evidence which itself suggests that her pain
4
testimony was properly discounted (see AR 526).
5
F.3d at 1113 (holding that “ALJ may properly rely on ‘unexplained
6
or inadequately explained failure . . . to follow a prescribed
7
course of treatment’” to discount claimant’s credibility (quoting
8
Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008)); Beck
9
v. Astrue, 303 F. App’x 455, 458 (9th Cir. 2008) (upholding
10
adverse credibility determination when plaintiff “failed to
11
follow a recommended treatment plan”).
12
two consulting physicians, her medical records showed that she
13
needed a “[c]rutch” for long-distance ambulation and could
14
otherwise sit, stand, and walk.
15
medical records therefore provide substantial evidence supporting
16
the ALJ’s finding that her physical-symptom statements were not
17
fully credible.
18
F.3d 1155, 1161 (9th Cir. 2008) (“Contradiction with the medical
19
record is a sufficient basis for rejecting the claimant’s
20
subjective testimony.”); Burch v. Barnhart, 400 F.3d 676, 681
21
(9th Cir. 2005) (“Although lack of medical evidence cannot form
22
the sole basis for discounting pain testimony, it is a factor
23
that the ALJ can consider in his credibility analysis.”).
24
As the ALJ noted (AR 72), Plaintiff also reported
See Molina, 674
Finally, when reviewed by
(AR 117, 129-30.)
Plaintiff’s
See Carmickle v. Comm’r, Soc. Sec. Admin., 533
The ALJ also properly found Plaintiff’s mental-symptom
25
statements not fully credible and unsupported by the record.
26
identified by the ALJ, Plaintiff alleged that she had “impaired
27
concentration as a result of her mental health symptoms.”
28
71.)
As
(AR
She testified at her hearing that she had “a lot of trouble
20
1
focusing” (AR 92-93), and in her function report she specified
2
that her concentration was impaired because of her “suicidal
3
issues” (AR 242).
4
with Plaintiff’s medical records and activities.
5
These statements, however, were inconsistent
After a formal psychiatric examination in October 2013, Dr.
6
Rathana-Nakintara concluded that Plaintiff had “no difficulties
7
focusing[,] maintaining attention,” or “concentrat[ing].”
8
537.)
9
tasks, and she had “no limitations” on her ability to complete a
(AR
She was capable of performing both simple and complex
10
“normal workday or workweek” because of her mental condition
11
(id.), which was diagnosed as mood disorder (AR 536).
12
challenges Dr. Rathana-Nakintara’s opinion as “incomplete,”
13
claiming that it failed to address her other “personality
14
disorder” diagnoses.
15
found that Dr. Rathana-Nakintara’s evaluation was corroborated by
16
both the examination itself and the record as a whole.
17
see Thomas, 278 F.3d at 957; accord Batson v. Comm’r of Soc. Sec.
18
Admin., 359 F.3d 1190, 1195 (9th Cir. 2004).
19
examination, for example, Plaintiff completed “serial sevens
20
subtraction . . . down from 100 to two,” which she did “with no
21
mistake at all.”
22
subtraction” and “was able to spell the word ‘world’ forward and
23
backward easily.”
24
observed that Plaintiff exhibited “no difficulty interacting with
25
the clinic staff or [herself],” contributing to the conclusion
26
that she had “no difficulties in maintaining social functioning.”
27
(AR 537.)
28
Rathana-Nakintara’s findings.
(J. Stip. at 37.)
(AR 535.)
(Id.)
Plaintiff
But the ALJ correctly
(AR 73);
During the
She did “the same on serial threes
Similarly, Dr. Rathana-Nakintara
The ALJ accordingly afforded “great weight” to Dr.
(AR 73.)
21
Plaintiff’s mental-
1
symptom allegations were therefore not supported by her medical
2
records.
3
the medical record is a sufficient basis for rejecting the
4
claimant’s subjective testimony.”); Burch, 400 F.3d at 681.
5
See Carmickle, 533 F.3d at 1161 (“Contradiction with
Her activities, too, showed that her concentration was not
6
impaired.
7
included group projects, and spent long periods playing music and
8
crocheting (AR 246).
9
capable of paying attention “long enough to work,” and she said
She received an A+ in her Spanish class (AR 87), which
In her function report, she admitted being
10
her attention span was “no different” than before the alleged
11
disability onset date.
12
indicated that she was capable of paying bills and handling
13
savings accounts (AR 245), which was corroborated by Dr. Rathana-
14
Nakintara’s psychiatric evaluation (see AR 535).
15
also found to have no limitations with “understanding and memory”
16
or “sustained concentration and persistence” by Drs. Logan and
17
Funkenstein, consulting psychologists who reviewed her medical
18
records and found her not disabled.
19
Plaintiff’s reported limitations with focus and concentration
20
were unsupported by the record, and the ALJ properly discounted
21
her credibility in this regard.
22
Burch, 400 F.3d at 681.
23
24
b.
(AR 247.)
Her function report also
Plaintiff was
(AR 118, 131-32.)
Thus,
See Carmickle, 533 F.3d at 1161;
Daily activities
As the ALJ found (AR 71) and as discussed briefly above,
25
Plaintiff’s symptom statements were also undermined by her
26
contradictory reports of engaging in “activities including self-
27
care, housework, errands (including use of public
28
transportation), and social and leisure activities” (id.).
22
An
1
ALJ may properly discount the credibility of a plaintiff’s
2
subjective symptom statements when they are inconsistent with her
3
daily activities.
4
discredit claimant’s testimony when “claimant engages in daily
5
activities inconsistent with the alleged symptoms” (citing
6
Lingenfelter, 504 F.3d at 1040)).
7
activities suggest some difficulty functioning, they may be
8
grounds for discrediting the claimant’s testimony to the extent
9
that they contradict claims of a totally debilitating
10
11
impairment.”
See Molina, 674 F.3d at 1112 (ALJ may
“Even where those [daily]
Id. at 1113.
Despite Plaintiff’s allegations of pain while standing and
12
walking, both she and her father testified that she could engage
13
in a range of housework, including cleaning dishes, doing
14
laundry, and vacuuming.
15
also stated that she could regularly and independently travel to
16
church and school (AR 97, 245-46), and she indicated that she had
17
no problems with personal care, preparing her own meals, or using
18
public transportation (AR 243-45).
19
left the house “fairly frequently.”
20
(AR 84, 95, 244.)
She and her father
Her father testified that she
(AR 97.)
Her allegations of difficulty sitting (see, e.g., AR 91)
21
were similarly contradicted by her statements that she did not
22
feel pain when seated (AR 90) and spent her days “sitting longer”
23
while crocheting and playing music (AR 246).
24
further corroborated her ability to stand, walk, and sit.
25
e.g., AR 117, 129-30, 530, 605.)
26
four months, never missing a class, and received an A+ in the
27
course.
28
(AR 97.)
(AR 87-89.)
Medical records
(See,
She also attended school for
She apparently took a second class, typing.
Thus, the record contains substantial evidence of
23
1
Plaintiff’s functional activity, undermining her physical-symptom
2
statements and supporting the ALJ’s adverse credibility
3
determination.
4
Cir. 1993) (upholding ALJ’s finding that claimant’s pain
5
testimony was undermined by his housecleaning, “including
6
vacuuming and dishwashing”; light gardening; shopping; and
7
attending school three days a week, “an activity which is
8
inconsistent with an alleged inability to perform all work”).
9
See Matthews v. Shalala, 10 F.3d 678, 679-80 (9th
Moreover, to the extent Plaintiff alleges disability because
10
she was unable to be around others, the record shows otherwise.
11
Dr. Rathana-Nakintara indicated that she had “no difficulties in
12
maintaining social functioning,” had “no limitations . . .
13
interacting with coworkers and with the public,” and experienced
14
stress in personal relationships rather than at work.
15
Plaintiff testified to working with others in group projects as
16
part of her Spanish class, which she did successfully given the
17
“A+” she received in the course.
18
testified that she interacted well with others despite her self-
19
reported difficulty with such interactions.
20
Plaintiff reported spending time with others by talking on the
21
phone, going to church weekly, and taking part in church “to the
22
fullest extent” (AR 246),14 activities which she had also
(AR 87-89.)
(AR 537.)
Her father, too,
(AR 96-98.)
23
14
24
25
26
27
28
Plaintiff contends that the church “could not deal with
her.” (J. Stip. at 21 (citing AR 498, 509).) AR 498 states only
that Plaintiff reported that her church activities “elevate her
mood.” AR 509 states only that she stopped going to the Mormon
Church and was trying out other religions. On AR 508, Plaintiff
reported that the pastor of her church did not have as much time
to spend with her as she wanted, and she “felt bad but
understands.” That hardly equates to the church being “unable to
deal with her.”
24
1
reported to her therapist, Dr. Handler (AR 507-08 (Plaintiff
2
connected with people at church, volunteered, and went shopping
3
with a friend from church)).
4
demonstrated activities of daily living undermined Plaintiff’s
5
statements that she was unable to work, concentrate, or be around
6
others.
7
Cir. 2017) (upholding ALJ’s discounting of plaintiff’s
8
credibility in part because his activities of daily living “were
9
not entirely consistent with his claimed inability to engage in
10
Thus, both her medical records and
See Womeldorf v. Berryhill, 685 F. App’x 620, 621 (9th
social interactions”).
11
c.
Noncompliance with treatment and medications
12
The ALJ specifically noted how Plaintiff’s instances of
13
exacerbated mental-health issues were “associated with periods of
14
poor medication compliance.”
15
example, during Plaintiff’s March 2013 hospitalization, she
16
reported being noncompliant with her depression medication.
17
323.)
18
compliance with her medication (see, e.g., AR 561), and no
19
subsequent instances of hospitalization occurred.
20
psychiatric records during the relevant period substantiated
21
Plaintiff’s claims of impaired concentration caused by mental-
22
health problems.
23
F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be
24
controlled effectively with medication are not disabling for the
25
purpose of determining eligibility for SSI benefits.”).
(AR 73; see also AR 323, 374.)
For
(AR
Thereafter, during the relevant period, she reported
In fact, no
See Warre v. Comm’r of Soc. Sec. Admin., 439
26
For all these reasons, the ALJ’s adverse credibility
27
determination of Plaintiff’s symptom statements is supported by
28
substantial evidence.
Plaintiff is therefore not entitled to
25
1
remand on this ground.15
2
B.
The ALJ Properly Found that Plaintiff’s Physical
3
Impairment Did Not Meet or Equal Listing 1.06,
4
“Fracture of a Femur”
5
Plaintiff argues that the ALJ erred in finding that her
6
impairment did not fall under Listing 1.06 because her medical
7
records “establish incomplete union” of her left femur fracture.
8
(J. Stip. at 5.)
9
err.
10
11
1.
As discussed below, however, the ALJ did not
Applicable law
At step three of the disability evaluation process, the ALJ
12
must evaluate the claimant’s impairments to see if they meet or
13
medically equal any of those in the Listings.
14
§ 416.920(a)(4)(iii); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th
15
Cir. 1999).
16
that they are irrebuttably presumed disabling, without any
17
specific finding as to the claimant’s ability to perform his past
18
relevant work or any other jobs.”
19
§ 404.1520(d)).
20
21
See
Listed impairments are those that are “so severe
Lester, 81 F.3d at 828 (citing
The claimant has the initial burden of proving that an
impairment meets or equals a Listing.
Molina, 674 F.3d at 1110;
22
23
24
25
26
27
28
15
The ALJ may have erred in finding Plaintiff’s treatment
with antipsychotic medication to be “conservative.” (AR 73.)
But even if the ALJ was wrong, see, e.g., Childress v. Colvin,
No. EDCV 14-0009-MAN, 2015 WL 2380872, at *14 (C.D. Cal. May 18,
2015) (finding treatment of prescription antidepressants,
prescription antipsychotics, and talk therapy not properly
characterized as conservative), he did not err in concluding that
it was largely effective. Moreover, as discussed above, the ALJ
gave other legally sufficient reasons for partially discounting
Plaintiff’s credibility.
26
1
Burch, 400 F.3d at 683 (citing Swenson v. Sullivan, 876 F.2d 683,
2
687 (9th Cir. 1989)).
3
must establish that he or she meets each characteristic of a
4
listed impairment relevant to his or her claim.”
5
F.3d at 1099 (emphasis in original).
6
impairment, a claimant must establish symptoms, signs and
7
laboratory findings ‘at least equal in severity and duration’ to
8
the characteristics of a relevant listed impairment, or, if a
9
claimant’s impairment is not listed, then to the listed
“To meet a listed impairment, a claimant
Tackett, 180
“To equal a listed
10
impairment ‘most like’ the claimant’s impairment.”
11
§ 404.1526 (emphasis in original)).
12
moreover, “must be based on medical findings”; “[a] generalized
13
assertion of functional problems is not enough to establish
14
disability at step three.”
15
Id. (quoting
Medical equivalence,
Id. at 1100 (citing § 404.1526).
An ALJ “must evaluate the relevant evidence before
16
concluding that a claimant’s impairments do not meet or equal a
17
listed impairment.”
18
2001).
19
to satisfy every different section of the listing of
20
impairments.”
21
Cir. 1990).
22
supporting his conclusion only in other sections of his decision.
23
See id. at 1200-01 (finding no error when ALJ failed to state or
24
discuss evidence supporting conclusion that claimant’s
25
impairments did not satisfy Listing but “made a five page,
26
single-spaced summary of the record”); Lewis, 236 F.3d at 513
27
(ALJ required “to discuss and evaluate the evidence that supports
28
his or her conclusion,” but no error when ALJ does not “do so
Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir.
The ALJ need not, however, “state why a claimant failed
Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th
The ALJ does not err by discussing the evidence
27
1
under the heading ‘Findings’”).
Moreover, the ALJ “is not
2
required to discuss the combined effects of a claimant’s
3
impairments or compare them to any listing in an equivalency
4
determination, unless the claimant presents evidence in an effort
5
to establish equivalence.”
Burch, 400 F.3d at 683.
6
An ALJ’s decision that a claimant did not meet a Listing
7
must be upheld if it was supported by “substantial evidence.”
8
See Warre, 439 F.3d at 1006.
9
a mere scintilla but less than a preponderance; it is such
Substantial evidence is “more than
10
relevant evidence as a reasonable mind might accept as adequate
11
to support a conclusion.”
12
(9th Cir. 1997) (per curiam) (citing Andrews v. Shalala, 53 F.3d
13
1035, 1039 (9th Cir. 1995)).
14
more than one rational interpretation, the Court must uphold the
15
ALJ’s conclusion.
Sandgathe v. Chater, 108 F.3d 978, 980
When evidence is susceptible of
Id.
16
Listing 1.06 requires the following:
17
Fracture of the femur, tibia, pelvis, or one or more of
18
the tarsal bones.
19
20
With:
A. Solid union not evident on appropriate medically
acceptable imaging and not clinically solid; and
21
B. Inability to ambulate effectively, as defined in
22
1.00B2b, and return to effective ambulation did not occur
23
or is not expected to occur within 12 months of onset.
24
25
20 C.F.R. pt. 404, subpt. P, app. 1 § 1.06.
The “[i]nability to ambulate effectively” is the “extreme
Id. § 1.00(B)(2)(b)(1).
The
26
limitation of the ability to walk.”
27
impairment must prevent “independent ambulation without the use
28
of a hand-held assistive device(s) that limits the functioning of
28
1
both upper extremities.”
2
includes “the inability to walk without the use of . . . two
3
crutches or two canes.”
4
2.
5
Id.
“[I]neffective ambulation”
Id. § 1.00(B)(2)(b)(2).
Relevant background
Plaintiff was involved in a car accident in 2010 and
6
underwent several rounds of surgery for fractures in her left and
7
right legs.
8
left femur was diagnosed as a nonunion, and she underwent
9
corrective surgery.
(See AR 526.)
In July 2012, the fracture in her
(AR 441-42.)
In October 2012 she
10
demonstrated independent ambulation and the ability to stand for
11
“3-5 minutes” (AR 384), and in March 2013 — when she filed her
12
SSI application — she could walk “short distances [without] pain”
13
(AR 310).
14
Plaintiff’s left-leg fracture was healing but continued to
15
exhibit nonunion despite stable hardware.
16
544.)
17
femur, with normal alignment and intact hardware.
18
05, 608-09.)
19
Medical imaging throughout 2013 indicated that
(See, e.g., AR 307,
In 2014, medical imaging showed “delayed union” of the
(AR 602, 604-
Plaintiff’s examination with Dr. Sargeant in September 2013
20
showed that she ambulated effectively with crutches, but she
21
refused to even attempt to walk without them (see AR 527-30)
22
despite recent reports that she was able to do so at least
23
briefly, as noted above (see, e.g., AR 310, 384).
24
later admitted that she had not told the truth to Dr. Sargeant
25
when she said she needed crutches “for everything” (AR 526) and
26
in fact used them only 50 percent of the time (AR 114).
27
Sargeant found that Plaintiff should walk with a cane for long
28
distances but otherwise was unimpeded in walking for up to four
29
Plaintiff
Dr.
1
hours a day.
(AR 530.)
2
showed continued improvement to the point of “full weight
3
bearing” (AR 609) and indicated that she could walk at least
4
short distances without pain and only occasionally required one
5
crutch.
6
Gleason, after reviewing her medical records, also found that
7
Plaintiff should walk with a “[c]rutch for long distances” but
8
otherwise had no walking limitations for up to two to four hours
9
a day.
(AR 545, 605.)
Physical examinations in 2013 and 2014
Consulting physicians Ombres and
(AR 117, 129-30.)
10
3.
Analysis
11
The ALJ properly concluded that Plaintiff failed to
12
establish that her leg impairment met or equaled Listing 1.06.
13
Specifically, he found that “[w]hile the record does document
14
nonunion of the claimant’s femur in medical imaging, the evidence
15
does not show an inability [to] ambulate effectively or an
16
expectation of inability to ambulate within 12 months.”
17
(AR 70.)
Plaintiff’s medical records indicate that her left-leg
18
fracture did not result in a solid union.
19
608-09.)
20
the “record does document nonunion of the claimant’s femur in
21
medical imaging.”
22
that the ALJ did not find nonunion (see J. Stip. at 6-9), remand
23
is unwarranted.
24
ALJ’s finding that solid union of her left-leg fracture was not
25
evident.
(See AR 307, 544, 602,
The ALJ considered this in his decision, stating that
(AR 70.)
Thus, to the extent Plaintiff argues
Substantial evidence in the record supports the
26
But the ALJ also found that Plaintiff did not present
27
evidence showing “an inability [to] ambulate effectively.”
28
30
(AR
This finding is supported by substantial evidence.16
1
70.)
2
Though the record contains reports of leg pain from Plaintiff
3
(see, e.g., AR 84, 242, 536), ample evidence establishes that she
4
could walk effectively.
5
used crutches only 50 percent of the time (AR 114), and Dr.
6
Sargeant assessed that to walk long distances she needed only a
7
cane (AR 530).
8
weight bearing in four to six weeks.
9
of that year she reported walking two miles without pain.
In September 2013, she admitted that she
By January 2014, she was expected to be fully
(AR 609.)
Indeed, in March
(AR
10
605.)
11
activities supporting the inference that she could walk
12
effectively, such as completing household chores like vacuuming
13
and going to school and church.
14
substantial evidence supports the conclusion that Plaintiff could
15
walk effectively.17
16
She and her father also reported that she engaged in
(See, e.g., 95, 243-45.)
Thus,
See Warre, 439 F.3d at 1006.
Moreover, during her September 2013 physical examination,
17
when she was asked to walk without crutches, she refused, saying
18
that she needed crutches “for everything.”
19
then called in admitting that she had lied and that she needed
20
crutches only 50 percent of the time.
(AR 526-27.)
(AR 114.)
She
Indeed,
21
22
23
24
25
26
27
28
16
Plaintiff seems to argue only that she was unable to
ambulate effectively “through at least December 23, 2013” (J.
Stip. at 9), apparently conceding that no evidence shows she
couldn’t after that date. March 2013, the application date, to
December of the same year is less than the 12 months necessary to
show disability.
17
Plaintiff undermines her own argument by acknowledging
that she could walk with only one crutch. (See J. Stip. at 9.)
While walking only with the assistance of two crutches qualifies
under Listing 1.06 (see 20 C.F.R. pt. 404, subpt. P, app. 1
§ 1.00(B)(2)(b)(2)), walking with one crutch does not, see id.
31
1
Plaintiff had earlier told her doctors she could walk three to
2
five minutes and “short distances” without pain.
3
2013), 384 (Oct. 2012).)
4
ALJ’s finding that Plaintiff failed to provide evidence
5
establishing her inability to ambulate effectively.
6
v. Astrue, No. CV 11-7246-PLA, 2012 WL 3631526, at *7 (C.D. Cal.
7
Aug. 23, 2012) (finding that plaintiff did not demonstrate
8
inability to ambulate effectively because there was no “evidence
9
in the record to support . . . that in order to ambulate at all,
(AR 310 (May
Thus, substantial evidence supports the
See Huizar
10
she requires two canes, or any other assistive device that limits
11
the functioning of both upper extremities”).
12
Remand is therefore unsupported on this ground.
13
C.
14
15
The ALJ Properly Found Plaintiff’s Mental Impairment
Nonsevere
Plaintiff argues that the ALJ failed to properly evaluate
16
her “longitudinal mental impairment,” including depression,
17
bipolar disorder, schizotypal personality disorder, and
18
schizoaffective disorder.
19
discussed below, however, the ALJ did not err.
20
error was harmless.
21
22
1.
(J. Stip. at 28.)
For the reasons
Moreover, any
Applicable law
The step-two inquiry is “a de minimis screening device to
23
dispose of groundless claims.”
Smolen, 80 F.3d at 1290.
The
24
claimant has the burden to show that she has one or more “severe”
25
medically determinable impairments that can be expected to result
26
in death or last for a continuous period of at least 12 months,
27
as demonstrated by evidence in the form of signs, symptoms, or
28
laboratory findings.
See §§ 416.905, 416.920(a)(4)(ii); Ukolov
32
1
v. Barnhart, 420 F.3d 1002, 1004-05 (9th Cir. 2005); Bowen v.
2
Yuckert, 482 U.S. 137, 146 n.5 (1987).
3
impairment is “severe” if it “significantly limits [the
4
claimant’s] physical or mental ability to do basic work
5
activities.”18
6
impairment or combination of impairments may be found ‘not severe
7
only if the evidence establishes a slight abnormality that has no
8
more than a minimal effect on an individual’s ability to work.’”
9
Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (quoting
A medically determinable
§ 416.920(c); see also § 416.921(a).
“An
10
Smolen, 80 F.3d at 1290 (emphasis in original)).
11
determine whether substantial evidence in the record supported
12
the ALJ’s finding that a particular impairment was not severe.
13
Davenport v. Colvin, 608 F. App’x 480, 481 (9th Cir. 2015)
14
(citing Webb, 433 F.3d at 687); see also Kent v. Astrue, 335 F.
15
App’x 673, 674 (9th Cir. 2009) (same).
16
error is harmless when the ALJ considered any resulting
17
limitations later in the sequential evaluation process, at step
18
four.
19
amended); Bickell v. Astrue, 343 F. App’x 275, 278 (9th Cir.
20
2009).
Moreover, a step-two
See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (as
21
22
A court must
2.
Additional relevant background
Plaintiff’s recent medical records, submitted for the first
23
time to the Appeals Council, indicated that she was compliant
24
with her medications and regularly reported “doing alright.”
25
26
27
28
18
“Basic work activities” include, among other things,
“[p]hysical functions such as walking, standing, sitting,
lifting, pushing, pulling, reaching, carrying, or handling” and
“[c]apacities for seeing, hearing, and speaking.” § 416.922(b);
accord Yuckert, 482 U.S. at 141.
33
1
(See, e.g., AR 54 (Apr. 2016), 56 (Jan. 2016), 57 (Dec. 2015), 58
2
(Nov. 2015), 59 (Sept. 2015), 60 (July 2015), 61 (May 2015), 62
3
(Apr. 2015), 63 (Feb. 2015).)
4
2015 by psychiatrist Than Myint.19
5
apparently did not conduct a formal psychiatric examination at
6
the time but found that Plaintiff had “extreme” limitations
7
understanding, remembering, and carrying out instructions (AR 18)
8
and “difficulty with interpersonal relationships” and
9
“concentrating and focusing due to intrusive thoughts” (AR 22-
Plaintiff was evaluated in June
(AR 18-29.)
Dr. Myint
10
23).
11
appropriately to supervision, coworkers, and work pressures in a
12
work setting (AR 18) and was competent to manage funds on her own
13
(AR 24).
Dr. Myint also found, however, that she could respond
14
15
3.
Analysis
The ALJ properly found that Plaintiff had a medically
16
determinable mental impairment, mood disorder, but that it caused
17
no more than “minimal limitation” and therefore was not severe.
18
(AR 69-70.)
19
discussed below.
20
mental impairments at step two was harmless because the ALJ
Substantial evidence supports that determination, as
And any error in not identifying any other
21
22
23
24
25
26
27
28
19
The record contains treatment notes from Dr. Myint dating
at least as far back as 2012. (See, e.g., AR 303.) The record
also contains medication-support documentation signed by Dr.
Myint since at least 2011. (See, e.g., AR 290-91, 518, 612, 62526.) Though the majority of those records are illegible (see,
e.g., AR 292-303, 519-23, 613-24), those that can be read
indicate that Plaintiff was regularly compliant with her
medications (see, e.g., AR 292 (May 2013), 293 (Apr. 2013), 295
(Feb. 2013), 296 (Jan. 2013), 302 (May 2012), 519 (Jan. 2014),
520 (Dec. 2013), 521 (Oct. 2013), 522 (Sept. 2013), 523 (July
2013), 613 (Oct. 2014), 615 (July 2014), 617 (May 2014), 619
(Mar. 2014), 620 (Feb. 2014), 621 (Jan. 2014).)
34
1
thoroughly discussed and considered all of Plaintiff’s mental
2
limitations.
3
As a preliminary matter, Plaintiff argues that the evidence
4
submitted for the first time to the Appeals Council supports her
5
position that her mental conditions were severe.
6
39-40.)
7
claimants to submit new and material evidence to the Appeals
8
Council and require the Council to consider that evidence in
9
determining whether to review the ALJ’s decision, so long as the
10
evidence relates to the period on or before the ALJ’s decision.”
11
Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th
12
Cir. 2012); see also § 416.1470(b).
13
considers new evidence in deciding whether to review a decision
14
of the ALJ, that evidence becomes part of the administrative
15
record, which the district court must consider when reviewing the
16
Commissioner’s final decision for substantial evidence.”
17
682 F.3d at 1163; accord Taylor v. Comm’r of Soc. Sec. Admin.,
18
659 F.3d 1228, 1232 (9th Cir. 2011); see also Borrelli v. Comm’r
19
of Soc. Sec., 570 F. App’x 651, 652 (9th Cir. 2014) (remand
20
necessary when “reasonable possibility” exists that “the new
21
evidence might change the outcome of the administrative
22
hearing”).
23
(J. Stip. at
Social Security Administration regulations “permit
“[W]hen the Appeals Council
Brewes,
Medical examinations that take place after the ALJ’s
24
decision may still relate to a claimant’s conditions “during the
25
relevant time period.”
26
WL 4895678, at *3 (C.D. Cal. Sept. 30, 2014).
27
the Appeals Council errs by dismissing the evidence solely
28
because it is dated after the ALJ’s decision.
Handy v. Colvin, No. CV 14–02149–SH, 2014
35
In such a case,
See id.; see also
1
Baccari v. Colvin, No. EDCV 13–2393 RNB, 2014 WL 6065900, at *2
2
(C.D. Cal. Nov. 13, 2014) (finding fact that claimant submitted
3
evidence to Appeals Council that was “generated after the ALJ’s
4
decision . . . is not dispositive of whether the evidence was
5
chronologically relevant”).
6
condition is “chronic” or relatively “longstanding.”
7
Baccari, 2014 WL 6065900, at *2; Bergmann v. Apfel, 207 F.3d
8
1065, 1070 (8th Cir. 2000) (finding that posthearing evidence
9
required remand because it concerned deterioration of “relatively
10
This is especially true when the
See
longstanding” impairment).
11
As the Appeals Council found (AR 2), the new evidence
12
submitted to it did not relate to the relevant time period — from
13
Plaintiff’s March 26, 2013 application date to January 16, 2015,
14
the date of the ALJ’s decision — and thus did not bear on the
15
severity determination made by the ALJ.
16
the “new evidence . . . may not relate back in time to the period
17
adjudicated by [the] ALJ.”
18
reflect Plaintiff’s stability and compliance with medication
19
since February 2015 (see, e.g., AR 54, 56-63) and provide an
20
additional psychiatric evaluation completed in June 2015 (AR 18-
21
24).
22
it assesses Plaintiff’s limitations as of June 2015, five months
23
after the ALJ’s decision.
24
No. SA CV 17-0394-E, 2017 WL 4142295, at *5 (C.D. Cal. Sept. 18,
25
2017) (upholding ALJ who discounted medical opinion written in
26
present tense and which did not state that it applied
27
retrospectively (citing Lombardo v. Schweiker, 749 F.2d 565, 567
28
(9th Cir. 1984) (per curiam)); Lewis v. Colvin, No. 12CV2073 AJB
(AR 16.)
Plaintiff admitted that
Indeed, the new records
The latter is written in the present tense, indicating that
(Id.); see also Serna v. Berryhill,
36
1
(RBB), 2013 WL 4517252, at *26 (S.D. Cal. Aug. 21, 2013) (holding
2
that medical opinion in present tense and making no reference to
3
relevant time period provided no basis for reversing ALJ’s
4
decision or remanding).
5
that it related back to the relevant time period.
6
Berryhill, 688 F. App’x 495, 496 (9th Cir. 2017) (holding new
7
evidence not relevant when it did “not indicate that [it]
8
relate[d] back to the relevant period”); see also Vincent ex rel.
9
Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984)
Indeed, the evaluation nowhere indicates
Bales v.
10
(“After-the-fact psychiatric diagnoses are notoriously
11
unreliable.”).
12
Moreover, the evaluation is undermined by inconsistences
13
internally and with the record, and it accordingly “does not
14
change the fact that substantial evidence supports the ALJ’s
15
decision.”
16
2017 WL 3971459, at *2
17
Myint assessed only “extreme” and “marked” limitations in
18
Plaintiff’s cognitive and social functioning, and yet the
19
evaluation also found Plaintiff capable of responding
20
appropriately to supervision, coworkers, and work pressures in a
21
work setting (see AR 18-19) and stated that she could handle her
22
own funds (AR 24).
23
was completely unable to concentrate or stay focused (AR 29), yet
24
she received an A+ in a community-college Spanish course (AR 87)
25
and acknowledged that her alleged disability had not affected her
26
ability to pay attention (AR 247).
27
extreme limitations are unsupported by Dr. Myint’s own treatment
28
notes, which just document medication support and her regular
Kohansby v. Berryhill, __ F. App’x __, No. 14-35926,
(9th Cir. Sept. 8, 2017).
First, Dr.
Second, the evaluation stated that Plaintiff
37
Third, Plaintiff’s noted
1
compliance with medication.
(See, e.g., AR 54-63.)
Fourth, Dr.
2
Myint apparently treated Plaintiff since 2011 (see AR 21), and
3
his evaluation appears to rely on an earlier history of
4
hospitalizations occurring outside the relevant application
5
period (id.).
6
evidence did not impact the ALJ’s findings regarding Plaintiff
7
during the relevant period.
Thus, as noted by the Appeals Council, the new
(AR 2.)
8
As discussed by the ALJ, “the evidence of record dating from
9
the period at issue [did] not support a finding that the claimant
10
[had] consistently experienced more than minimal work-related
11
functional limitation as a result of any mental health
12
symptomatology.”
13
that despite a prior history of psychiatric hospitalization,
14
suicidal ideation, and associated periods of “poor medication
15
compliance” (AR 70; see also, e.g., AR 319-34, 497, 500-10),
16
regular treatment and medication stabilized her condition.
17
example, Plaintiff was seen throughout 2013 and 2014 and
18
consistently reported “doing alright,” being “stable,” and
19
complying with her medication.
20
563 (Aug. 2013), 565 (July 2013), 567 (Apr. 2013), 613 (Oct.
21
2014), 615 (July 2014), 617 (May 2014), 619 (Mar. 2014), 620
22
(Feb. 2014), 621 (Jan. 2014), 622 (Dec. 2013), 623 (Oct. 2013),
23
624 (Sept. 2013).)
24
70), the record contains no evidence of psychiatric
25
hospitalization during the relevant period.
26
F. App’x at 481 (affirming ALJ’s determination that claimant’s
27
mental impairments were not severe during relevant period in part
28
because treatment notes indicated that claimant’s “depression and
(AR 69-70.)
Plaintiff’s medical records showed
For
(See, e.g., AR 561 (Nov. 2013),
Moreover, as recognized by the ALJ (AR 69-
38
See Davenport, 608
1
anxiety were either mild or improved with treatment”).
2
previously discussed, Plaintiff’s activities of daily living
3
confirmed that any mental impairment was not severe.
4
her October 2013 psychiatric evaluation, Dr. Rathana-Nakintara
5
found Plaintiff capable of social functioning, focusing, and
6
maintaining attention.
7
limitations” in her psychological work-related functions (see
8
id.; see also AR 70), and those findings were confirmed by the
9
opinions of consulting psychologists Logan and Funkenstein (AR
10
119, 132), which were afforded “significant weight” by the ALJ
11
(see AR 73).
12
that Plaintiff’s mental condition improved and was not severe
13
during the relevant period.
14
2:15-cv-2023-KJN (PS), 2017 WL 999459, at *3 (E.D. Cal. Mar. 15,
15
2017) (holding that ALJ did not err in finding Plaintiff’s
16
plantar fasciitis not severe in part because condition had
17
improved before relevant period), appeal filed, No. 17-15701 (9th
18
Cir. Apr. 12, 2017).
19
(AR 537.)
And as
Finally, in
She was assessed as having “no
The record therefore provides substantial evidence
See Fry v. Comm’r Soc. Sec., No.
Even had the ALJ erred in his severity determination, the
20
error was likely harmless.
21
considered and discussed Plaintiff’s mental functioning at
22
length.
23
harmless.
24
Moreover, the VE testified that a person possessing the RFC
25
assessed by the ALJ but also limited to only “occasional contact
26
with supervisors, coworkers and the public” could still perform
27
numerous jobs available in the economy, including many of those
28
cited by the ALJ in his decision.
(See AR 71-73.)
In assessing Plaintiff’s RFC, the ALJ
Thus, any error at step two was
See Lewis, 498 F.3d at 911; Bickell, 343 F. at 278.
39
(See AR 104; see also AR 75.)
1
Thus, any error in the ALJ’s step-two determination was harmless
2
for this additional reason.
3
498 F.3d at 911; Tommasetti, 533 F.3d at 1038 (error is harmless
4
when it is “inconsequential to the ultimate nondisability
5
determination”); cf. Heston v. Comm’r of Soc. Sec., 245 F.3d 528,
6
536 (6th Cir. 2001) (finding error harmless when ALJ did not
7
discuss opinion of treating physician but VE took relevant
8
limitations into consideration anyway).
9
See Bickell, 343 F. at 278; Lewis,
Thus, for all these reasons, Plaintiff is not entitled to
10
remand on this ground.
11
VI.
12
CONCLUSION
Consistent with the foregoing and under sentence four of 42
13
U.S.C. § 405(g),20 IT IS ORDERED that judgment be entered
14
AFFIRMING the Commissioner’s decision, DENYING Plaintiff’s
15
request for remand, and DISMISSING this action with prejudice.
16
17
DATED: October 13, 2017
18
______________________________
JEAN ROSENBLUTH
U.S. Magistrate Judge
19
20
21
22
23
24
25
26
27
28
20
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.”
40
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