Lori Lynn De La O v. Michael J. Astrue, No. 2:2011cv02399 - Document 29 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER by Magistrate Judge Jean P Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment on counsel for bothparties. (twdb)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LORI LYNN DE LA O, 12 Plaintiff, 13 v. 14 MICHAEL J. ASTRUE, Commissioner of the Social 15 Security Administration, 16 Defendant. 17 ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 11-2399 JPR MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER 18 I. PROCEEDINGS 19 Plaintiff seeks review of the Commissioner s final decision 20 denying her application for Social Security Disability Insurance 21 Benefits ( DIB ). The parties consented to the jurisdiction of 22 the undersigned U.S. Magistrate Judge pursuant to 28 U.S.C. 23 § 636(c). This matter is before the Court on the parties Joint 24 Stipulation, filed March 19, 2012. The Court has taken the Joint 25 Stipulation under submission without oral argument. For the 26 reasons stated below, the Commissioner s decision is affirmed and 27 this action is dismissed. 28 1 II. BACKGROUND 2 Plaintiff was born on August 8, 1966. 3 Record ( AR ) 33.) (Administrative She has a high-school education and 4 previously worked as a front-office receptionist, secretary, and 5 dental-claims associate. (AR 122, 187.) 6 have been disabled since March 30, 2006. 7 Plaintiff claims to (AR 95.) On January 22, 2008, Plaintiff filed an application for DIB. 8 (AR 95-101.) After her application was denied, she requested a 9 hearing before an Administrative Law Judge ( ALJ ), which was 10 held on July 20, 2009. (AR 49-54.) Plaintiff appeared with 11 counsel and testified on her own behalf. (Id.) Plaintiff s 12 family members and friend submitted statements regarding 13 Plaintiff s limitations. (AR 148-55, 211-18.) On August 17, 14 2009, the ALJ denied Plaintiff s claim, determining that she had 15 the severe impairment of fibromyalgia (AR 29-30) but was not 16 disabled because she retained the residual functional capacity 17 ( RFC )1 to perform medium work with mild to moderate 18 limitation in responding appropriately to coworkers, supervisors, 19 or the public. (AR 32.) Plaintiff requested review of the 20 ALJ s decision and submitted additional evidence to the Appeals 21 Council. (AR 4, 20.) On January 21, 2011, after considering the 22 new evidence, the Appeals Council denied Plaintiff s request for 23 review. (AR 1-3.) This action followed. 24 25 26 1 RFC is what a claimant can still do despite existing 20 C.F.R. § 404.1545(a); see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 27 exertional and nonexertional limitations. 28 2 1 III. STANDARD OF REVIEW 2 Pursuant to 42 U.S.C. § 405(g), a district court may review 3 the Commissioner s decision to deny benefits. The Commissioner s 4 or ALJ s findings and decision should be upheld if they are free 5 of legal error and are supported by substantial evidence based on 6 the record as a whole. § 405(g); Richardson v. Perales, 402 U.S. 7 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971); Parra v. 8 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence 9 means such evidence as a reasonable person might accept as 10 adequate to support a conclusion. Richardson, 402 U.S. at 401; 11 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It 12 is more than a scintilla but less than a preponderance. 13 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 14 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether 15 substantial evidence supports a finding, the reviewing court 16 must review the administrative record as a whole, weighing both 17 the evidence that supports and the evidence that detracts from 18 the Commissioner s conclusion. 19 720 (9th Cir. 1998). Reddick v. Chater, 157 F.3d 715, If the evidence can reasonably support 20 either affirming or reversing, the reviewing court may not 21 substitute its judgment for that of the Commissioner. Id. at 22 720-21. 23 IV. THE EVALUATION OF DISABILITY 24 People are disabled for purposes of receiving Social 25 Security benefits if they are unable to engage in any substantial 26 gainful activity owing to a severe physical or mental impairment 27 that is expected to result in death or has lasted, or is expected 28 to last, for a continuous period of at least 12 months. 3 42 1 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 2 (9th Cir. 1992). 3 A. 4 The ALJ follows a five-step sequential evaluation process to The Five-Step Evaluation Process 5 assess if a claimant is disabled. 20 C.F.R. § 404.1520(a)(4); 6 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as 7 amended Apr. 9, 1996). In the first step, the ALJ must determine 8 whether the claimant is currently engaged in substantial gainful 9 activity; if so, the claimant is not disabled and the claim is 10 denied. § 404.1520(a)(4)(i). If the claimant is not engaged in 11 substantial gainful activity, the second step requires the ALJ to 12 determine whether the claimant has a severe impairment or 13 combination of impairments significantly limiting her ability to 14 do basic work activities; if not, a finding of nondisability is 15 made and the claim is denied. § 404.1520(a)(4)(ii). If the 16 claimant has a severe impairment or combination of impairments, 17 the third step requires the ALJ to determine if the impairment or 18 combination of impairments meets or equals an impairment in the 19 Listing of Impairments ( Listing ) set forth at 20 C.F.R., Part 20 404, Subpart P, Appendix 1; if so, disability is conclusively 21 presumed and benefits are awarded. § 404.1520(a)(4)(iii). If 22 the claimant s impairment or combination of impairments does not 23 meet or equal an impairment in the Listing, the fourth step 24 requires the ALJ to determine whether the claimant has sufficient 25 RFC to perform her past work; if so, the claimant is not disabled 26 and the claim is denied. § 404.1520(a)(4)(iv). The claimant has 27 the burden of proving she is unable to perform past relevant 28 work. Drouin, 966 F.2d at 1257. If the claimant meets that 4 1 burden, a prima facie case of disability is established. Id. If 2 that happens or if the claimant has no past relevant work, the 3 ALJ then bears the burden of establishing that the claimant is 4 not disabled because she can perform other substantial gainful 5 work available in the national economy. § 404.1520(a)(4)(v). 6 That determination comprises the fifth and final step in the 7 sequential analysis. § 404.1520; Lester, 81 F.3d at 828 n.5; 8 Drouin, 966 F.2d at 1257. 9 10 B. The ALJ s Application of the Five-Step Process At step one, the ALJ found that Plaintiff had not engaged in 11 any substantial gainful activity since March 30, 2006. (AR 29.) 12 At step two, the ALJ concluded that Plaintiff s fibromyalgia was 13 a severe impairment but her mental impairments were 14 nonsevere. (AR 29-31.) At step three, the ALJ found that 15 Plaintiff did not have an impairment or combination of 16 impairments that met or equaled any of the impairments in the 17 Listing. (AR 32.) At step four, the ALJ found that Plaintiff 18 had the RFC to perform medium work as defined in 20 C.F.R. 19 404.1567(c), with mild to moderate limitation in responding 20 appropriately to coworkers, supervisors, or the public. 21 32-33.) (AR At step five, the ALJ found that Plaintiff was able to 22 perform past relevant work as a front-office receptionist, 23 secretary, or dental-claims associate. (AR 33-34.) The ALJ 24 further found that Plaintiff could perform other jobs that 25 existed in significant numbers in the national economy. 26 33-34.) (AR The ALJ therefore concluded that Plaintiff was not under 27 a disability from the alleged onset date, March 30, 2006, through 28 the date of decision, August 17, 2009. 5 (AR 34.) 1 V. DISCUSSION 2 Plaintiff contends that the ALJ (1) improperly rejected the 3 opinion of Dr. Geoffrey L. Loman, her treating physician (J. 4 Stip. 3-10); (2) failed to address third-party statements from 5 Plaintiff s mother, father, friend, then-spouse, employer, and 6 therapist (J. Stip. 15-19); (3) improperly evaluated Plaintiff s 7 mental impairments (J. Stip. 24-26); and (4) improperly 8 determined that Plaintiff was able to perform her past work (J. 9 Stip. 29-33). 10 A. 11 12 Rejection of Treating Physician s Opinion 1. The governing law A treating physician s opinion is entitled to special weight 13 because she is employed to cure and had the opportunity to know 14 and observe the patient as an individual. See McAllister v. 15 Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). The treating 16 physician s opinion is not, however, necessarily conclusive as to 17 either a physical condition or the ultimate issue of disability. 18 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The 19 weight given a treating physician s opinion depends on whether it 20 is supported by sufficient medical data and is consistent with 21 other evidence in the record. See 20 C.F.R. § 404.1527(d)(2). 22 If the treating physician s opinion is uncontroverted by another 23 doctor, it may be rejected only for clear and convincing 24 reasons. See Lester, 81 F.3d at 830; Baxter v. Sullivan, 923 25 F.2d 1391, 1396 (9th Cir. 1991). When the treating physician s 26 opinion is controverted, it may be rejected only if the ALJ makes 27 findings setting forth specific and legitimate reasons that are 28 based on the substantial evidence of record. 6 See, e.g., Reddick, 1 157 F.3d at 725. 2 3 2. Relevant facts Dr. Loman had regularly treated Plaintiff at the Brent 4 Street Family Practice since at least January 2000. 5 393-405, 474-494, 512-555, 585-87.) (AR 240-337, Before May 2006, when, 6 Plaintiff alleges, her disability began, Dr. Loman, a general 7 practitioner, treated Plaintiff for a variety of issues, 8 including back and neck pain from two motor-vehicle accidents, 9 back strain and spasm, gynecological issues, reactive airway 10 disease, bronchitis, allergies, depression, anxiety, and panic 11 attacks. 12 (AR 260-309.) In May 2006, Dr. Loman noted that Plaintiff was continuing 13 to be quite anxious, associated with fatigue, difficulty 14 concentrating ; was having trouble sleeping; and had diffuse 15 body aches. (AR 258.) She appeared depressed but had normal 16 speech, language, and cognition. (Id.) He diagnosed 17 [g]eneralized anxiety disorder despite multiple medications and 18 [f]ibromyalgia-like picture with fatigue, aches, sleep disorder, 19 and multiple trigger points. 2 (Id.) Dr. Loman increased 20 Plaintiff s trazodone, noted that she may be a candidate for 21 22 23 24 25 26 27 28 2 Fibromyalgia is a rheumatic disease that causes inflamation of the fibrous connective tissue components of muscles, tendons, ligaments, and other tissue. Benecke v. Barnhart, 379 F.3d 587, 589 (9th Cir. 2004) (citations omitted). Common symptoms include chronic pain throughout the body, multiple tender points, fatigue, stiffness, and a pattern of sleep disturbance that can exacerbate the cycle of pain and fatigue associated with this disease. Id. at 590 (citations omitted). Fibromyalgia s cause is unknown, and it is diagnosed entirely on the basis of patients reports of pain and other symptoms. Id. 7 1 Topamax or some other type of medication to target fibromyalgia, 2 and recommended she join Weight Watchers, lose weight, and start 3 water exercise. 4 (Id.) In July 2006, Dr. Loman reported that Plaintiff is sleeping 5 better and is feeling less anxious but continues to wake up 6 quite fatigued and continues to complain of shooting pains and 7 aches throughout her body. (AR 257.) Dr. Loman noted that 8 Plaintiff has trigger points all over. (Id.) His diagnosis 9 was anxiety and depression, which had improved on a regimen of 10 Wellbutrin, Paxil, and trazadone, and fibromyalgia, which seems 11 to be what is troubling her the most at this time and is limiting 12 her activities. (Id.) Dr. Loman prescribed Neurontin and 13 recommended she continue water therapy and massage, rest more, 14 and improve her nutrition. 15 (Id.) In August 2006, Dr. Loman noted that Plaintiff continues to 16 have body aches that have been essentially unchanged and was 17 often disabled from them. (AR 256.) He found that Plaintiff 18 was better in terms of her fatigue, and she was sleeping better 19 and was less anxious. (Id.) Dr. Loman s diagnosis was 20 [f]ibromyalgia with body aches ; he prescribed Lyrica because 21 Plaintiff was unable to tolerate Neurontin. 22 (Id.) In November 2006, Dr. Loman noted that Plaintiff suffered 23 from anxiety, depression, fibromyalgia with chronic pain, and 24 weight gain. (AR 254.) He found Plaintiff quite anxious and 25 depressed and not exercising much secondary to the fibro. 26 (Id.) Dr. Loman increased Plaintiff s Lyrica and encouraged her 27 to get counseling, improve her diet, and exercise. (Id.) Later 28 that month, Dr. Loman noted that Plaintiff is feeling better 8 1 with her fibromyalgia after the Lyrica has been increased. 2 252.) (AR In December, Dr. Loman noted that Plaintiff had marked 3 pain when she discontinued Lyrica due to a pharmacy mix-up but 4 was much better once she was back on her medication. (AR 251.) 5 She was getting more strength and has begun a regular exercise 6 program although she is only able to exercise for short periods 7 of time. (Id.) He concluded that her fibromyalgia and anxiety 8 were overall improving but she was still unable to work for 9 any period of time. 10 (Id.) In January 2007, Dr. Loman noted that Plaintiff s anxiety 11 seems to be a bit better, but her fibromyalgia and chronic 12 pain seems [sic] to be a bit worse, which Plaintiff attributed 13 to the cold weather. (AR 250.) Dr. Loman noted that [o]n exam 14 there are multiple trigger points that are tender to touch but 15 no joint symptoms. (Id.) He increased her Lyrica and found she 16 was clearly unable to go back to work at that time. 17 (Id.) In April 2007, Dr. Loman noted that Plaintiff was feeling 18 pretty lousy and had stopped her exercise program after a death 19 in the family. (AR 247.) His assessment was fibromyalgia with 20 chronic fatigue and anxiety; he recommended she continue her 21 current medications and exercise regimen and gave her 22 disability for six more months. 23 (Id.) In June 2007, Dr. Loman noted that Plaintiff was doing 24 better with regard to her anxiety and [h]as been getting out 25 more. (AR 246.) She was still having problems with chronic 26 pain and fatigue and still feels she would be unable to hold 27 down any kind of employment at this time as when she spends a day 28 doing activities she sleeps for 2-3 days following. 9 (Id.) His 1 assessment was [f]ibromyalgia with chronic fatigue and pain and 2 chronic anxiety, improved. (Id.) He recommended that she 3 continue her current regimen and continue exercising. 4 (Id.) In July 2007, Dr. Loman noted that Plaintiff is overall 5 doing better from the standpoint of her fibromyalgia but possibly 6 worse from her [sic] standpoint of her anxiety. (AR 245.) His 7 assessment was [a]nxiety with recent exacerbation and 8 fibromyalgia, overall improved with chronic fatigue aspects. 9 (Id.) Dr. Loman noted that they talked about possibly getting 10 involved in some counseling and that [s]he is to continue to be 11 on disability. 12 (Id.) In August 2007, Dr. Loman noted that Plaintiff had lost 13 eight pounds and was exercising, and she was able to cut back on 14 her Xanax and Vicodin. (AR 244.) He found she was less 15 depressed and did not appear anxious, and she had normal speech, 16 language, and cognition. (Id.) His assessment was [a]nxiety 17 and depression, clinically improved and [f]ibromyalgia, also 18 appears to be improved. 19 (Id.) In November 2007, Dr. Loman noted that Plaintiff s anxiety 20 and fibromyalgia both seemed to be improving. (AR 243.) He and 21 the Plaintiff talked about cutting back her medication and 22 getting her back into a job on a part time basis. (Id.) His 23 assessment included [c]hronic anxiety and depression, overall 24 improved, [f]ibromyalgia with diffuse body pains, and 25 osteoarthritis. (AR 242.) In December, he noted that Plaintiff 26 was feeling better until a cold set her back. (AR 242.) In 27 January 2008, Dr. Loman noted that Plaintiff had an upper 28 respiratory infection and a flare of her fibromyalgia, which 10 1 was possibly associated with her respiratory symptoms. (AR 241.) 2 In April 2008, Dr. Loman noted that Plaintiff s fibromyalgia was 3 improving. 4 (AR 399.) On May 4, 2008, Dr. Dean Chiang, who was board-certified in 5 internal medicine, examined Plaintiff at the request of the 6 Social Security Administration. (AR 338-41.) Dr. Chiang did not 7 review any medical records, but upon examination he found that 8 Plaintiff was an obese individual who was fully ambulatory and 9 fully weightbearing and had full manual dexterity. 10 39.) (AR 338- She was able to sit comfortably during the examination, 11 get on and off the examination table without distress, converse 12 normally, and follow all commands. (AR 339.) Plaintiff 13 displayed multiple tender points, including all along the 14 paraspinal muscles in the trapezius region, deltoids, medial 15 aspects of the knees, and anterior thighs. (AR 340.) He found 16 Plaintiff had normal muscle bulk and tone, with motor strength 17 a 5/5 throughout. (Id.) Dr. Chiang diagnosed [f]ibromyalgia, 18 with an unremarkable physical exam and rendered the following 19 functional assessment: 20 The 21 musculoskeletal or neurological limitations that would 22 inhibit her standing, walking or sitting. 23 need any assistive device. There are no weight lifting 24 or carrying restrictions. There are no postural or 25 manipulative limitations and no visual, environmental or 26 communicative limitations. [Plaintiff] does not appear to have She does not 27 (AR 341.) 28 On May 28, 2008, Lance A. Portnoff, Ph.D., a 11 any 1 neuropsychologist, examined Plaintiff at the request of the 2 Social Security Administration. (AR 361-66.) Dr. Portnoff 3 reviewed Plaintiff s background information and administered 4 several tests, including the Wechsler Adult Intelligence 5 Scale-III, Wechsler Memory Scale-Revised, Trails A/Trails B, and 6 Bender-Gestalt-II. (AR 361.) Based on the results of those 7 tests, Dr. Portnoff concluded that Plaintiff had average 8 intelligence, with generally intact memory function and 9 attention. (AR 362-64.) He found that she had mildly rambling 10 thinking and moderate anxiety and depression, but that her 11 psychological testing was unremarkable compared with the average 12 individual in her age range. (AR 364.) Although Dr. Portnoff 13 found mild problems with her fund of knowledge, visual 14 attention to detail, reversed digit-span, and visual span, he 15 concluded that they were too mild to warrant a diagnosis. 16 (Id.) He diagnosed depressive disorder not otherwise specified 17 with anxious features and panic disorder with agoraphobia, and he 18 assigned a global-assessment-of-functioning score of 60. (AR 19 365.) 20 Dr. Portnoff concluded that Plaintiff s psychological issues 21 resulted in no restrictions in daily activities and no 22 difficulties with concentration, persistence, or pace. (Id.) He 23 found that Plaintiff was able to carry out and remember simple 24 instructions and had no limitations in her ability to respond 25 appropriately to a routine work setting. (Id.) Dr. Portnoff did 26 find, however, that Plaintiff had mild limitations in maintaining 27 social functioning because of panic attacks, agoraphobia, and 28 anxious depression; mild-to-moderate limitations in her ability 12 1 to respond appropriately to coworkers, supervisors, and the 2 public because of anxious depression; and mild limitations in her 3 ability to deal with unexpected changes in a work setting because 4 of anxious depression. 5 (Id.) From May to October 2008, Dr. Loman saw Plaintiff for 6 anxiety-related complaints, a rash, low back strain, and lab 7 work. (AR 393-98, 403.) In December 2008, Dr. Loman noted that 8 Plaintiff was having a flare in her fibromyalgia and suffered 9 from reactive airway disease and fatty liver changes. (AR 487.) 10 In January 2009, Dr. Loman treated Plaintiff for mild concussion 11 syndrome that resulted when she was hit in the head by her 12 husband as he rolled over in bed, and in April he treated her 13 for bronchitis and reactive airway disease. 14 (AR 483-86.) In April 2009, Dr. Loman noted that Plaintiff has a lot of 15 questions about disability and is trying to get some type of 16 disability ruling and is working with a lawyer for this. 17 482.) (AR He opined that Plaintiff is unable to do much in the way 18 of prolonged sitting, prolonged standing, or any activities for 19 meaningful work, and that her limitations are based on both her 20 pain from her fibromyalgia, as well as her anxiety an [sic] 21 depression. 22 (Id.) In a medical source statement dated April 20, 2009, Dr. 23 Loman listed Plaintiff s diagnoses as fibromyalgia, depression, 24 GAD [generalized anxiety disorder], RAD [reactive airway 25 disease], migraine HA s, cervical [and] lumbar disc disease, s/p 26 ulcerative colitis, s/p bowel resection [with] ostomy. 27 481.) (AR Dr. Loman opined that Plaintiff could occasionally lift 28 and carry a maximum of 10 pounds, frequently lift and carry less 13 1 than 10 pounds, stand and walk for less than two hours total in 2 an eight-hour day, and sit continuously for about six hours in an 3 eight-hour day. (Id.) Dr. Loman also stated that Plaintiff was 4 moderately limited in her ability to push and pull, limited in 5 her ability to operate controls due to muscle spasm and other 6 symptoms, unable to sit continuously, and unable to drive due to 7 pain medication. (Id.) Dr. Loman stated that Plaintiff s 8 limitations had existed for years [with] gradual worsening 9 [with] significant worsening in 2006. 10 (Id.) In a report dated May 9, 2009, Dr. Loman opined that 11 Plaintiff could lift and carry less than 10 pounds, stand or walk 12 for less than two hours in an eight-hour day, and sit 13 continuously for less than one hour. (AR 479.) These findings 14 were substantially more restrictive than the ones he had made 15 just three weeks earlier, on April 20. (AR 481.) Dr. Loman 16 found Plaintiff s ability to push and pull with her upper and 17 lower extremities moderately limited. (AR 480.) He also noted 18 that Plaintiff has underlying anxiety [and] depression but is 19 getting medical [and] psych treatment. (AR 480.) On May 1, 20 2009, about two months before the ALJ hearing, Plaintiff started 21 seeing a licensed marriage and family therapist, Patricia Wuebel. 22 (AR 496-97.) This was apparently the first counseling she had 23 pursued after being advised by Dr. Loman in 2006 and 2007 that 24 she needed it. 25 (AR 245, 254.) On August 17, 2009, the ALJ denied Plaintiff s claim. 26 27-34.) (AR The ALJ found that Dr. Loman s RFC assessment was not 27 generally credible because of internal inconsistency with his 28 progress notes of overall, general improvement when the claimant 14 1 was compliant with medical treatment including prescribed 2 medication. (AR 32.) The ALJ found the reports of consultative 3 examiners Drs. Chiang and Portnoff, on the other hand, to be 4 fully credible, based on supportability with medical signs and 5 laboratory findings; consistency with the record; and areas of 6 specialization ; the ALJ therefore accorded them significant 7 weight. (Id.) The ALJ then concluded that Plaintiff had the 8 RFC to perform medium work, which involves lifting no more 9 than 50 pounds at a time with frequent lifting or carrying of 10 objects weighing up to 25 pounds (20 C.F.R. § 404.1567(c)), with 11 mild to moderate limitation in responding appropriately to 12 coworkers, supervisors, and the public. 13 (AR 32.) After the ALJ issued his decision, Plaintiff submitted to 14 the Appeals Council Dr. Loman s treatment notes postdating the 15 ALJ s decision (AR 518-21) and a July 2010 fibromyalgia RFC 16 assessment that described Plaintiff s symptoms since the 17 earliest applicable date of June 1, 2010 (AR 585-87). Because 18 that information related to a period after the ALJ s decision, it 19 is not relevant to this Court s ruling. See § 404.970(b) ( If 20 new and material evidence is submitted, the Appeals Council shall 21 consider the additional evidence only where it relates to the 22 period on or before the date of the administrative law judge 23 hearing decision. ); cf. Taylor v. Comm r, Soc. Sec. Admin., 659 24 F.3d 1228, 1233 (9th Cir. 2011) (Appeals Council should have 25 considered doctor s later opinion of disability because it 26 related to period before disability insurance expired and before 27 ALJ issued decision). 28 15 1 2 3. Analysis Reversal is not warranted based on the ALJ s alleged failure 3 to properly evaluate Dr. Loman s opinion. 4 The ALJ s finding that Dr. Loman s opinion that Plaintiff s 5 condition had steadily worsened through the years was 6 inconsistent with his progress notes of overall, general 7 improvement when [Plaintiff] was compliant with medical 8 treatment was supported by substantial evidence. The ALJ was 9 therefore entitled to discount Dr. Loman s opinion on that basis. 10 See Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) 11 (treating doctor s opinion properly rejected when treatment notes 12 provide no basis for the functional restrictions he opined 13 should be imposed on [claimant] ); Valentine v. Comm r, Soc. Sec. 14 Admin., 574 F.3d 685, 692-93 (9th Cir. 2009) (contradiction 15 between treating physician s opinion and his treatment notes 16 constitutes specific and legitimate reason for rejecting treating 17 physician s opinion); Rollins v. Massanari, 261 F.3d 853, 856 18 (9th Cir. 2001) (ALJ permissibly rejected treating physician s 19 opinion when opinion was contradicted by or inconsistent with the 20 treatment reports). 21 Although Dr. Loman sometimes noted flares of fibromyalgia 22 and worsening psychological symptoms, for the most part, his 23 notes reflected overall improvement in Plaintiff s symptoms as 24 time went on and she received treatment. (See, e.g., AR 244 25 (anxiety, depression, fibromyalgia improved), 245 (fibromyalgia 26 better, anxiety possibly worse), 250 (anxiety better, 27 fibromyalgia worse), 252 (fibromyalgia and anxiety overall 28 improving), 256 (sleeping better and less anxious), 257 (anxiety 16 1 and depression improved), 399 (fibromyalgia improving), 243 2 (anxiety and fibromyalgia improving)). Plaintiff often failed to 3 follow Dr. Loman s recommendations that she lose weight and 4 exercise (AR 254, 257-58), but when she did, Dr. Loman noted 5 improved symptoms (see, e.g., AR 251 (Plaintiff gaining strength 6 and regularly exercising, fibromyalgia and anxiety overall 7 improving ), 247 (Plaintiff was feeling pretty lousy and had 8 stopped her exercise program), 244 (Plaintiff lost eight pounds 9 and was exercising; anxiety and depression improved)). Indeed, 10 by November 2007, Dr. Loman was encouraging Plaintiff to find 11 part-time work. (AR 243.) From May 2008 to early April 2009, 12 Plaintiff saw Dr. Loman several times (AR 393-99, 403, 483-87) 13 for other reasons but only once complained of anxiety (AR 398) 14 and reported only a single flare of fibromyalgia (AR 487). 15 Moreover, the ALJ was entitled to credit the opinions of 16 Drs. Chiang and Portnoff instead of Dr. Loman because those 17 opinions were supported by independent clinical findings and thus 18 constituted substantial evidence upon which the ALJ could 19 properly rely. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 20 (9th Cir. 2001); Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 21 1995). Dr. Chiang performed a physical exam of Plaintiff, 22 noting, among other things, her gait, ranges of motion, tender 23 points, and motor strength, and then concluded that she had no 24 limitations as a result of her fibromyalgia. (AR 338-41.) Dr. 25 Portnoff, meanwhile, reviewed Plaintiff s background information, 26 performed a mental status exam, and administered four different 27 psychological tests before finding she was largely unlimited by 28 her mental impairments. (AR 361-66.) 17 Indeed, Drs. Chiang s and 1 Portnoff s conclusions were generally consistent with Dr. 2 Loman s, who around the same time as their examinations had noted 3 Plaintiff s overall improvement to the point that she was again 4 looking for work. (AR 243.) In any event, any conflict in the 5 properly supported medical-opinion evidence was the sole province 6 of the ALJ to resolve. 7 See Andrews, 53 F.3d at 1041. Moreover, Dr. Loman was a family doctor, whereas Dr. Chiang 8 specialized in internal medicine (AR 341) and Dr. Portnoff in 9 neuropsychology (AR 361). Thus, as the ALJ found (AR 32), the 10 opinions of Drs. Chiang and Portnoff were entitled to greater 11 weight that Dr. Loman s based on their areas of specialization. 12 See 20 C.F.R. § 404.1527(c)(5) ( We generally give more weight to 13 the opinion of a specialist about medical issues related to his 14 or her area of specialty than to the opinion of a source who is 15 not a specialist. ); Smolen v. Chater, 80 F.3d 1273, 1285 (9th 16 Cir. 1996) (same). 17 Accordingly, the ALJ provided specific, legitimate reasons 18 for rejecting Dr. Loman s opinion. Plaintiff is not entitled to 19 remand on this ground. 20 B. 21 22 Rejection of Third-Party Statements 1. The governing law In determining whether a claimant is disabled, an ALJ must 23 consider lay witness testimony concerning a claimant s ability to 24 work. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) 25 (quoting Stout v. Comm r, Soc. Sec. Admin., 454 F.3d 1050, 1053 26 (9th Cir. 2006) (internal quotation marks omitted)); see also 20 27 C.F.R. § 404.1513(d) (statements from therapists, family, and 28 friends can be used to show severity of impairment(s) and effect 18 1 on ability to work). Such testimony is competent evidence and 2 cannot be disregarded without comment. Bruce, 557 F.3d at 1115 3 (quoting Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) 4 (internal quotation marks omitted)); Robbins, 466 F.3d at 885 5 ( [T]he ALJ is required to account for all lay witness testimony 6 in the discussion of his or her findings. ). When rejecting the 7 testimony of a lay witness, an ALJ must give specific reasons 8 that are germane to that witness. Bruce, 557 F.3d at 1115; see 9 also Stout, 454 F.3d at 1054; Nguyen, 100 F.3d at 1467. 10 If an ALJ fails to discuss competent lay testimony favorable 11 to the claimant, a reviewing court cannot consider the error 12 harmless unless it can confidently conclude that no reasonable 13 ALJ, when fully crediting the testimony, could have reached a 14 different disability determination. 15 see also Robbins, 466 F.3d at 885. Stout, 454 F.3d at 1056; But an ALJ s failure to 16 comment upon lay witness testimony is harmless where the same 17 evidence that the ALJ referred to in discrediting [the 18 claimant s] claims also discredits [the lay witness s] claims. 19 Molina v. Astrue, 674 F.3d 1104, 1122 (9th Cir. 2012) (quoting 20 Buckner v. Astrue, 646 F.3d 549, 560 (8th Cir. 2011)). 21 22 2. Relevant facts In a statement dated February 13, 2008, Theresa Martinez,3 23 Plaintiff s mother, wrote that pain and fatigue affected 24 Plaintiff s ability to lift, squat, bend, stand, reach, walk, 25 sit, kneel, climb stairs, see, concentrate, remember, and use her 26 27 3 The Court refers to Plaintiff s parents by first name 28 because they have the same last name. 19 1 hands. (AR 153.) Theresa wrote that Plaintiff could walk only a 2 half block before needing to rest for five minutes, and she could 3 pay attention for about an hour. (Id.) In a statement dated 4 June 21, 2009, Theresa wrote that in late 2005, she started 5 noticing that Plaintiff would become more tired when she tried 6 swimming, and in March 2006 Plaintiff was no longer able to work 7 due to pain and fatigue. (AR 211.) Theresa said that 8 housekeeping, grocery shopping, and everyday routine would 9 quickly wear Plaintiff out, and so she assisted Plaintiff with 10 many of those tasks. 11 (Id.) In a statement dated June 22, 2009, Richard Martinez, 12 Plaintiff s father, described Plaintiff s medical history and 13 stated that after a car accident in 1999, Plaintiff returned to 14 work but steadily became worse and missed many days of work as 15 well as having to leave early, and often due to great pain and 16 terrible headaches. (AR 213.) Richard stated that Plaintiff 17 became disabled in March 2006, and he had been witness to her 18 continual decline as she suffered from short and long term 19 memory loss, pain, and more pain throughout her body, unable to 20 do housework, balance her check book and suffers from complete 21 colon incontinence4 and limited functions with worsening 22 depression. 23 (Id.) In a statement dated June 21, 2009, Renee S. Goldade, 24 Plaintiff s friend, wrote that Plaintiff has a lot of difficulty 25 with most of the simple tasks in her everyday life and has to 26 27 28 4 Plaintiff had a history of ulcerative colitis and her colon was removed in 1990, leaving her with an ileostomy. (AR 195, 213, 340, 357, 362, 416, 422.) 20 1 cancel plans often because of sleeplessness, muscle pain, 2 swelling in joints, [and] fatigue. (AR 215.) Goldade said that 3 if they go somewhere, she has to drive because of Plaintiff s 4 medications, and Plaintiff tends to mix her words or forgets 5 what she is saying and leaves things at Goldade s house all the 6 time. (Id.) Goldade said that sometimes Plaintiff s pain is so 7 bad that she can t talk on the phone or get out of bed, and she 8 needs help with the simplest of things. 9 (Id.) In a statement dated July 15, 2009, Robert Patrick 10 Knollmiller, Plaintiff s then-spouse, wrote that Plaintiff goes 11 through terrible pains with her fibromyalgia and couldn t work 12 due to her joints and muscles hurting. (AR 217.) Knollmiller 13 said, Before I go to work I get her out of bed, and I help her 14 to the restroom so she doesn t fall. (Id.) Plaintiff has a 15 lot of trouble sleeping and is so depressed that she has told 16 me many times that she wishes she would die in her sleep. (Id.) 17 He wrote that Plaintiff continues to have severe panic attacks, 18 and is irritable, and has had to stop doing things that she used 19 to enjoy. (Id.) Knollmiller said he had to completely take 20 over our finances due to her memory[] and concentration 21 problems, and he even ha[s] to remind her to take her 22 medications. 23 (Id.) Plaintiff also submitted a March 30, 2006 termination letter 24 from Linda Woodams, the office manager at Plaintiff s previous 25 employer. (AR 189-90.) Woodams wrote that in the 20 months 26 Plaintiff was employed, she worked only 74.17% of the scheduled 27 time. (AR 189.) Woodams noted that a number of personal and 28 family issues contributed to her excessive absenteeism. 21 (AR 1 189.) 2 In a statement dated July 11, 2009, Patricia Wuebel, 3 Plaintiff s therapist5 since May 2009, wrote that Plaintiff met 4 the criteria for major depression, including daily depressed 5 mood, diminished interest and pleasure, significant weight gain, 6 insomnia, psychomotor retardation, fatigue, excessive guilt, 7 diminished ability to concentrate, and indecisiveness. (AR 496.) 8 Wuebel stated that Plaintiff was unable to work, her energy was 9 limited, and her pain increased with activity. (AR 496-97.) 10 Wuebel stated that Plaintiff was psychologically compromised in 11 spite of her psychiatric medications, suffered from panic 12 attacks, and had lost all tolerance for highly emotional 13 situations. 14 (Id.) In a treatment summary dated July 21, 2010, almost a year 15 after the ALJ issued his decision, Wuebel again described 16 Plaintiff s psychological symptoms and also stated that 17 Plaintiff s fibromyalgia symptoms were severe and limited her 18 daily activities. (AR 594.) She attached a mental impairment 19 questionnaire that stated that Plaintiff had severe major 20 depression with symptoms including, among other things, poor 21 memory, weight change, mood and sleep disturbances, recurrent 22 23 5 Wuebel, as a therapist rather than a doctor, is not an 24 acceptable medical source who can establish an impairment or give a medical opinion. See 20 C.F.R. § 404.1513(a). But 25 therapists, like a claimant s family and friends, can serve as 26 other sources for information showing the severity of a claimant s impairment and how it affects her ability to work. 27 Id. § 404.1513(d); SSR 06 03p, 2006 WL 2329939, at *1-2 (Aug. 9, 2006) (clarifying how Social Security Administration considers 28 opinions from sources who are not acceptable medical sources ). 22 1 panic attacks, perceptual disturbances, social withdrawal or 2 isolation, decreased energy, and suicidal ideation. (AR 596.) 3 Wuebel concluded that Plaintiff had a marked restriction of 4 activities of daily living; moderate difficulties in maintaining 5 social functioning; frequent difficulties with concentration, 6 persistence, and pace; and continual episodes of deterioration or 7 decompensation in work or work-like settings. 8 9 3. (AR 599.) Analysis The ALJ did not address the lay-witness statements from 10 Plaintiff s mother, father, friend, and then-spouse. Although 11 the ALJ erred in failing to give germane reasons for rejecting 12 this testimony, the error was harmless because the testimony 13 described the same limitations as Plaintiff s own testimony, and 14 the ALJ s reasons for rejecting Plaintiff s testimony apply with 15 equal force to the lay testimony. 16 Molina, 674 F.3d at 1122. Plaintiff testified at the hearing that her ability to work 17 was limited because of extreme body pain, frozen hands, 18 numb feet, muscle cramping in arms and legs, headaches that 19 affected her vision, and extreme fatigue. (AR 114.) In a 20 function report, Plaintiff stated that her conditions also 21 resulted in declining memory and poor concentration. (AR 144.) 22 But the ALJ found that Plaintiff s statements concerning the 23 intensity, persistence and limiting effects of [her] symptoms 24 were not credible to the extent they were inconsistent with the 25 RFC determination. (AR 32.) The ALJ noted that Plaintiff s 26 credibility was diminished because she did not follow up on Dr. 27 Loman s advice to maintain an appropriate diet and exercise, nor 28 did she did consult with an appropriate specialist such as a 23 1 rheumatologist or neurologist.6 (AR 32-33.) The ALJ also found, 2 among other things, that there was no credible report from a 3 treating doctor that supported her subjective complaints, and 4 with regard to her mental impairments, there were no diagnostic 5 examinations or objective signs and symptoms observed. 6 33.) (AR 32- The ALJ specifically noted that Plaintiff s cognitive 7 deficits were too mild to warrant a diagnosis, based on clinical 8 psychological testing. (AR 31.) The ALJ s reasons constituted 9 appropriate bases for discounting Plaintiff s subjective symptom 10 testimony. See, e.g., Coleman v. Astrue, 423 F. App x 754, 756 11 (9th Cir. 2011) (when evaluating credibility, ALJ may consider 12 claimant s failure to follow repeated medical recommendations 13 that she treat fibromyalgia pain with exercise and increased 14 activity levels); Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 15 2005) ( Although lack of medical evidence cannot form the sole 16 basis for discounting pain testimony, it is a factor that the ALJ 17 can consider in his credibility analysis. ); Meanel v. Apfel, 172 18 F.3d 1111, 1114 (9th Cir. 1999) (ALJ may consider failure to seek 19 treatment); Morgan v. Comm r, Soc. Sec. Admin., 169 F.3d 595, 600 20 (9th Cir. 1999) (ALJ may properly consider conflict between 21 claimant s testimony of subjective complaints and objective 22 23 24 25 26 27 28 6 Despite Dr. Loman s recommendations to seek counseling (AR 245, 254), Plaintiff failed to meet with a therapist until years later, on May 1, 2009 (AR 496-97), approximately two months before the ALJ hearing. And Plaintiff did not see a psychiatrist until June 19, 2009, just one month before the hearing. (AR 496, 565-66.) The Court, however, does not rely on these facts in affirming the ALJ s decision. See Regennitter v. Comm r, Soc. Sec. Admin., 166 F.3d 1294, 1299-1300 (9th Cir. 1999) (criticizing reliance on failure to seek treatment to reject mental-health complaints); Nguyen, 100 F.3d at 1465 (same). 24 1 medical evidence in the record); Bunnell, 947 F.2d at 346 (ALJ 2 may consider unexplained, or inadequately explained, failure to 3 seek treatment or follow a prescribed course of treatment ).7 4 Indeed, with a disease such as fibromyalgia, for which there are 5 few if any objectively discernable symptoms, a claimant s failure 6 to follow up with recommended treatment is all the more critical 7 in evaluating whether she is truly disabled. See generally 8 Benecke, 379 F.3d at 590 (fibromyalgia diagnosed solely on basis 9 of patient s reports of pain and other symptoms). 10 The statements of Plaintiff s family and friend also 11 described limitations from fatigue, pain, and cognitive issues. 12 Thus, because the ALJ provided well-supported grounds for 13 rejecting testimony regarding specified limitations, the Court 14 cannot ignore the ALJ s reasoning and reverse the agency merely 15 because the ALJ did not expressly discredit each witness who 16 described the same limitations. Molina, 674 F.3d at 1121. 17 Thus, the ALJ s error was harmless and Plaintiff is not entitled 18 to reversal on this ground. 19 The ALJ s failure to discuss Woodam s termination letter was 20 also harmless. The ALJ found that Plaintiff had not engaged in 21 substantially gainful employment since March 30, 2006, the date 22 23 24 25 26 27 28 7 The ALJ provided other reasons for discounting Plaintiff s testimony, which Plaintiff claims were erroneous. (J. Stip. 18.) The reasons listed above were, however, sufficient to support the ALJ s ultimate finding that Plaintiff had diminished credibility; thus, any error in the additional reasons was harmless. See Carmickle v. Comm r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (if substantial evidence supports ALJ s credibility determination and any error does not negate the validity of it, error is harmless and does not warrant reversal). 25 1 of the letter. (AR 29.) Other than stating that Plaintiff s 2 employment was terminated, Woodam noted only that Plaintiff was 3 often absent from work due to personal and family issues. 4 189-90.) (AR Woodam said nothing about Plaintiff s medical or 5 psychological impairments or their impact on her ability to work. 6 Thus, even if fully credited, the termination letter provided no 7 basis for a reasonable ALJ to make a different disability 8 determination; if anything, it seemed to imply that other, 9 nonmedical reasons contributed to Plaintiff s poor work 10 performance. 11 Finally, the ALJ provided specific and germane reasons for 12 rejecting the opinion of Wuebel, Plaintiff s therapist. The ALJ 13 noted that Plaintiff complained of debilitating psychiatric 14 symptoms but had only a recent 2-month period of treatment by 15 Wuebel. (AR 31.) He noted that Wuebel s opinion conflicted with 16 Dr. Portnoff s finding, based on clinical psychological 17 testing, that Plaintiff suffered from predominantly mild 18 symptoms. (AR 31-32.) Wuebel was a therapist (AR 496), whereas 19 Dr. Portnoff was a board-certified neuropsychologist (AR 361) 20 whose opinion was therefore entitled to greater weight. See 20 21 C.F.R. §§ 404.1513(a) (licensed physicians and psychologists are 22 considered acceptable medical sources ), 404.1513(d) (therapists 23 are considered other sources ); Gomez v. Chater, 74 F.3d 967, 24 970-71 (9th Cir. 1996) (ALJ is entitled to accord opinions from 25 other sources less weight than opinions from acceptable medical 26 sources ). The ALJ therefore gave sufficient reasons to reject 27 Wuebel s statement. See SSR 06 03p, 2006 WL 2329939, at *4-5 28 26 1 (Aug. 9, 2006) (factors in § 404.1527(d) - now § 404.1527(c)8 2 also apply to consideration of opinions of other medical 3 sources, such as therapists, including extent of treatment 4 relationship and consistency with other evidence). 5 Plaintiff is not entitled to remand on this ground. 6 C. 7 At step two of the sequential evaluation process, a Determination that Mental Impairments Were Not Severe 8 plaintiff has the burden to present evidence of medical signs, 9 symptoms, and laboratory findings that establish a medically 10 determinable physical or mental impairment that is severe and can 11 be expected to result in death or last for a continuous period of 12 at least 12 months. Ukolov v. Barnhart, 420 F.3d 1002, 1004-05 13 (9th Cir. 2005) (citing 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D));9 14 see 20 C.F.R. §§ 404.1520, 404.1509. Substantial evidence 15 supports an ALJ s determination that a claimant is not disabled 16 at step two when there are no medical signs or laboratory 17 findings to substantiate the existence of a medically 18 determinable physical or mental impairment. 19 1004-05 (citing SSR 96-4p). An impairment may never be found on 20 the basis of the claimant s symptoms alone. 21 Ukolov, 420 F.3d at Id. at 1005. Step two is a de minimis screening device [used] to dispose 22 23 8 20 C.F.R. § 404.1527(d) was redesignated as § 404.1527(c) 24 in March 2012. See How We Collect and Consider Evidence of 25 Disability, 77 Fed. Reg. 10,651, 10,656 (Feb. 23, 2012) (to be codified at 20 C.F.R. pts. 404 and 416). 26 9 A medical sign is an anatomical, physiological, or 27 psychological abnormality that can be shown by medically acceptable clinical diagnostic techniques. 28 1005. 27 Ukolov, 420 F.3d at 1 of groundless claims. Smolen, 80 F.3d 1290. Applying the 2 applicable standard of review to the requirements of step two, a 3 court must determine whether an ALJ had substantial evidence to 4 find that the medical evidence clearly established that the 5 claimant did not have a medically severe impairment or 6 combination of impairments. Webb v. Barnhart, 433 F.3d 683, 687 7 (9th Cir. 2005); see also Yuckert v. Bowen, 841 F.2d 303, 306 8 (9th Cir. 1988) ( Despite the deference usually accorded to the 9 Secretary s application of regulations, numerous appellate courts 10 have imposed a narrow construction upon the severity regulation 11 applied here. ). An impairment or combination of impairments can 12 be found not severe only if the evidence established a slight 13 abnormality that had no more than a minimal effect on an 14 individual s ability to work. Webb, 433 F.3d at 686 (citation 15 omitted). 16 Substantial evidence supports the ALJ s finding that 17 Plaintiff s mental impairments were not severe. As the ALJ 18 observed (AR 30-31), Dr. Portnoff conducted several tests and 19 found Plaintiff not significantly limited at the workplace on a 20 psychological basis (AR 361-66). Dr. Portnoff found that 21 Plaintiff had no restriction in her daily activities; no 22 significant difficulties with concentration, persistence, and 23 pace; no history of emotional deterioration in work-like 24 settings; and no limitations in her ability to respond 25 appropriately to usual or routine work situations, such as 26 attendance and safety. (AR 365.) He further found that 27 Plaintiff was able to understand, carry out, and remember simple 28 instructions and had no significant cognitive defects. 28 (AR 1 364-65.) In fact, Portnoff found only mild limitations in 2 maintaining social functioning ; mild limitations in her ability 3 to deal with unexpected changes in a routine work setting ; and 4 mild-to-moderate limitations in her ability to respond 5 appropriately to co-workers, supervisors, or the public. 6 365.) (AR After reviewing that evidence, the ALJ concluded that 7 Plaintiff s medically determinable mental impairments of 8 depression and anxiety have not caused more than minimal 9 limitation in the claimant s ability to perform basic mental work 10 activities for a 12 consecutive month period and are therefore 11 nonsevere. 12 (AR 31.) In arguing that the ALJ s evaluation was wrong, Plaintiff 13 primarily relies on the discredited medical evidence and lay 14 statements discussed in sections A and C above. 15 26.) (J. Stip. 24- Plaintiff also argues (J. Stip. 24) that Dr. Michael 16 Vivian s records and opinion, which were submitted to the Appeals 17 Council after the ALJ issued his decision in this case (AR 1-4), 18 establish that Plaintiff suffered from a severe mental 19 impairment. But Dr. Vivian first saw Plaintiff on July 29, 2009, 20 just three weeks before the ALJ issued his decision. (AR 563.) 21 The treatment notes from that period do not reflect any 22 functional limitations resulting from Plaintiff s mental 23 impairments. (AR 558-64.) Over a year later, in August 2010, 24 Dr. Vivian completed a mental impairment questionnaire but did 25 not indicate that the assessment pertained to Plaintiff s 26 condition on or before the time the ALJ issued his decision. 27 580-83.) (AR Dr. Vivian s August 2010 report thus was not material 28 to this appeal. See 20 C.F.R. § 404.970(b) ( If new and material 29 1 evidence is submitted, the Appeals Council shall consider the 2 additional evidence only where it relates to the period on or 3 before the date of the administrative law judge hearing 4 decision. (emphasis added)); cf. Taylor, 659 F.3d at 1233 5 (Appeals Council should have considered doctor s later opinion of 6 disability because it related to period before disability 7 insurance expired and before ALJ issued decision). 8 Even if the ALJ erred by finding Plaintiff s mental 9 impairments nonsevere, that error was harmless because he 10 considered her minimal mental limitations when determining her 11 RFC at step four. See Lewis v. Astrue, 498 F.3d 909, 911 (9th 12 Cir. 2007) (failure to address particular impairment at step two 13 harmless if ALJ fully evaluates claimant s medical condition in 14 later steps of sequential evaluation process); see also Stout, 15 454 F.3d at 1055 (ALJ s error harmless when inconsequential to 16 the ultimate nondisability determination ). Specifically, the 17 ALJ properly accounted for any work-related impairments resulting 18 from Plaintiff s mental impairments by concluding that she could 19 perform medium work with mild to moderate limitation in 20 responding appropriately to coworkers, supervisors, or the 21 public. (AR 32.) 22 Plaintiff is not entitled to remand on this ground. 23 D. 24 25 Determination that Plaintiff Could Perform Past Work 1. The governing law At step four of the five-step process, the claimant has the 26 burden of proving she cannot return to her former type of work, 27 either as actually performed or as generally performed in the 28 national economy. Pinto v. Massanari, 249 F.3d 840, 845 (9th 30 1 Cir. 2001) (quoting Villa v. Heckler, 797 F.2d 794, 798 (9th Cir. 2 1986)). If the claimant meets that burden, the analysis 3 continues to step five. 4 20 C.F.R. § 404.1520(f)-(g). At step five, the Commissioner has the burden to demonstrate 5 that the claimant can perform some other work that exists in 6 significant numbers in the national economy, taking into 7 account the claimant s RFC, age, education, and work experience. 8 Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999); 42 U.S.C. 9 § 423(d)(2)(A); 20 C.F.R. § 404.1560(c). The Commissioner may 10 satisfy that burden either through the testimony of a vocational 11 expert or by reference to the Medical-Vocational Guidelines 12 appearing in 20 C.F.R. Part 404, Subpart P, Appendix 2 ( the 13 grids ). 14 Tackett, 180 F.3d at 1100-01. The grids present, in table form, a short-hand method for 15 determining the availability and numbers of suitable jobs for a 16 claimant. Id. at 1101; Lounsburry v. Barnhart, 468 F.3d 1111, 17 1114 (9th Cir. 2006). They consist of a matrix of four factors 18 physical ability, age, education, and work experience and set 19 forth rules that identify whether jobs requiring specific 20 combinations of those factors exist in significant numbers in the 21 national economy. Heckler v. Campbell, 461 U.S. 458, 461-62, 103 22 S. Ct. 1952, 1954-55, 76 L. Ed. 2d 66 (1983). 23 exists, the claimant is not disabled. If such work Id. at 462; Lounsburry, 24 468 F.3d at 1114. 25 When a claimant suffers only exertional, or strength- 26 related, limitations, the ALJ must consult the grids. 27 Lounsburry, 468 F.3d at 1115. When a claimant suffers from both 28 exertional and nonexertional limitations (such as pain or a 31 1 mental impairment), the ALJ must first determine whether the 2 grids mandate a finding of disability with respect to exertional 3 limitations. See Lounsburry, 468 F.3d at 1116; Cooper v. 4 Sullivan, 880 F.2d 1152, 1155 (9th Cir. 1989). 5 claimant must be awarded benefits. If so, the Cooper, 880 F.2d at 1155. If 6 not, the ALJ may be required to take the testimony of a 7 vocational expert. 8 Cir. 2007). Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th But vocational expert testimony is required only if 9 the nonexertional limitation is sufficiently severe so as to 10 significantly limit the range of work permitted by the claimant s 11 exertional limitations. Id. (quoting Burkhart v. Bowen, 856 12 F.2d 1335, 1340 (9th Cir. 1988)). The severity of the 13 limitations at step five that would require use of a vocational 14 expert must be greater than the severity of impairments 15 determined at step two. Id. Thus, the mere fact that a 16 nonexertional limitation exists is insufficient to require 17 testimony from a vocational expert even if the impairment 18 underlying the limitation is found to be severe at step two. 19 Id.; see also Desrosiers v. Sec y of Health & Human Servs., 846 20 F.2d 573, 577 (9th Cir. 1988) ( [T]he fact that a non-exertional 21 limitation is alleged does not automatically preclude application 22 of the grids. ). 23 24 2. Analysis After considering the entire record, the ALJ concluded that 25 Plaintiff had the RFC to perform medium work with mild to 26 moderate limitation in responding appropriately to coworkers, 27 supervisors, and the public. (AR 32.) The ALJ also found that 28 Plaintiff had past relevant work as a front desk receptionist, 32 1 secretary, and dental claims associate, which are generally 2 considered sedentary to light. (AR 33.) The ALJ therefore 3 concluded that Plaintiff was able to perform that past relevant 4 work because she was capable of performing the more difficult 5 medium work. (Id.) The ALJ also went on to make a step-five 6 determination of nondisability, finding that Plaintiff s 7 additional limitations had little or no effect on the 8 occupational base of unskilled medium work and that Plaintiff 9 was therefore not disabled under Medical-Vocational Rule 10 203.29. 11 (AR 33-34.) Plaintiff argues that the ALJ overlook[ed] the mental 12 requirements and temperaments required for each of her former 13 jobs, and thus his step-four conclusion was in error. 14 at 30.) (J. Stip. Specifically, Plaintiff argues that according to the 15 Dictionary of Occupational Titles, the jobs of receptionist, 16 secretary, and dental-claims associate require significant 17 people skills. 18 omitted).) (J. Stip. 30 (internal quotation marks Thus, Plaintiff argues, even accepting the ALJ s RFC 19 finding, her social limitations would preclude performance of 20 each of her former jobs. 21 (AR 30.) Although the ALJ found at step five that Plaintiff s 22 additional limitations had little to no effect on the 23 occupational base of unskilled medium work (AR 34), he did not 24 assess whether those limitations would affect her ability to 25 perform her previous employment, nor did he clarify whether that 26 work was unskilled, semiskilled, or skilled (AR 33-34). See 20 27 C.F.R. § 404.1568(a) (unskilled work needs little or no judgment 28 to do simple duties that can be learned on the job in about 30 33 1 days); id. § 404.1568(b) (semiskilled work needs some skills but 2 does not require doing the more complex work duties ); id. § 3 404.1568(c) (skilled work may require dealing with people, 4 facts, or figures or abstract ideas at a high level of 5 complexity ). The ALJ therefore arguably erred by failing to 6 make specific findings of fact as to the physical and mental 7 demands of each of the former jobs he found Plaintiff capable of 8 performing. See Pinto, 249 F.3d at 844 (although burden of proof 9 lies with claimant at step four, ALJ still has a duty to make 10 the requisite factual findings to support his conclusion ); cf. 11 Carmickle, 533 F.3d at 1167 ( Broad generic occupational 12 classifications are insufficient to test whether a claimant can 13 perform past relevant work. (quoting Vertigan v. Halter, 260 14 F.3d 1044, 1051 (9th Cir. 2001) (internal quotation marks, 15 brackets, and ellipses omitted))). 16 But any error in the ALJ s step-four determination was 17 harmless in light of his alternative finding of nondisability at 18 step five. See Tommasetti v. Astrue, 533 F.3d 1035, 1042 (9th 19 Cir. 2008) ( Although the ALJ s step four determination 20 constitutes error, it is harmless error in light of the ALJ s 21 alternative finding at step five. ); see also Cadena v. Astrue, 22 365 F. App x 777, 780 (9th Cir. 2010) ( [T]he ALJ s alternative 23 ruling at step five - that [claimant] could perform light, 24 unskilled work that existed in significant numbers in the 25 national economy - renders the step four error harmless. ). 26 At step five, the ALJ found that jobs existed in significant 27 numbers in the national economy that Plaintiff could perform. 28 (AR 33-34.) Although Plaintiff had a mild to moderate 34 1 limitation in responding appropriately to coworkers, supervisors, 2 or the public (AR 32), the ALJ found that those additional 3 limitations had little to no effect on the occupational base of 4 unskilled medium work (AR 34). The ALJ therefore concluded that 5 Plaintiff met the criteria of Medical-Vocational Rule 203.29 (AR 6 34), which states that a younger individual who has at least a 7 high school education that does not provide direct entry into 8 skilled work, has experience performing skilled or semiskilled 9 work, has no transferable skills, and has the ability to perform 10 medium work is not disabled. 11 2, § 203.29. 20 C.F.R. Part 404, Subpart P, App. Indeed, the grids specifically state that the 12 functional capacity to perform medium work represents such 13 substantial work capability even at the unskilled level that a 14 finding of disabled is ordinarily not warranted in cases where a 15 severely impaired person retains the functional capacity to 16 perform medium work. 17 Id. § 203.00(b) (emphasis added). The ALJ, moreover, was entitled to rely on the grids at step 18 five without introducing vocational expert testimony because 19 Plaintiff did not have a sufficiently severe nonexertional 20 limitation. See Hoopai, 499 F.3d at 1077 (holding that 21 claimant s mild to moderate depression was not a sufficiently 22 severe nonexertional limitation that prohibited the ALJ s 23 reliance on the grids without the assistance of a vocational 24 expert ). The ALJ specifically found that Plaintiff s additional 25 limitations had little to no effect on the occupational base of 26 unskilled medium work (AR 34), and that finding was supported by 27 substantial evidence. As discussed in Section C, Dr. Portnoff s 28 opinion established that Plaintiff had no significant cognitive 35 1 defects and her mental impairments resulted in no restrictions 2 in daily activities; no difficulties with concentration, 3 persistence, or pace; no limitations in her ability to 4 understand, carry out, and remember simple instructions; and no 5 limitations in her ability to respond appropriately to usual or 6 routine work situations. (AR 364-65.) Dr. Portnoff found only 7 mild-to-moderate limitations in Plaintiff s ability to respond 8 appropriately to co-workers, supervisors, and the public; mild 9 limitations in social functioning; and mild limitations in her 10 ability to deal with unexpected changes in a routine work 11 setting. (AR 365.) Thus, substantial evidence supports the 12 ALJ s finding that Plaintiff s mental impairments did not result 13 in significant nonexertional limitations. Indeed, the ALJ s 14 finding at step two that Plaintiff s mental impairment was not a 15 severe disability further shows that vocational expert 16 testimony was not required. Cf. Hoopai, 499 F.3d at 1076 17 ( Clearly, the severity of the limitations at step five that 18 would require use of a vocational expert must be greater than the 19 severity of impairments determined at step two, otherwise the two 20 steps would collapse and a vocational expert would be required in 21 every case in which a step-two determination of severity is 22 made. ). 23 Plaintiff is not entitled to remand on this ground. 24 25 26 27 28 36 1 VI. CONCLUSION 2 Consistent with the foregoing, and pursuant to sentence four 3 of 42 U.S.C. § 405(g),10 IT IS ORDERED that judgment be entered 4 AFFIRMING the decision of the Commissioner and dismissing this 5 action with prejudice. IT IS FURTHER ORDERED that the Clerk 6 serve copies of this Order and the Judgment on counsel for both 7 parties. 8 9 10 DATED: May 15, 2012 11 ______________________________ JEAN P. ROSENBLUTH U.S. Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 This 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. 37

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