Maria Hernandez v. Michael J Astrue, No. 2:2012cv05723 - Document 21 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Plaintiff Maria Hernandez filed this action on July 11, 2012. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge. (Dkt. Nos. 11, 13. ) On April 15, 2013, the parties filed a Joint Stipulation ("JS")that addressed the disputed issues. The court has taken the matter under submission without oral argument. Having reviewed the entire file, the court affirms the decision of the Commissioner. IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. (See Order for details.) (mp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MARIA HERNANDEZ, 12 Plaintiff, 13 v. 14 15 16 CAROLYN W. COLVIN, Commissioner of Social Security, Defendant. 17 18 ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 12-5723 AGR MEMORANDUM OPINION AND ORDER Plaintiff Maria Hernandez filed this action on July 11, 2012. Pursuant to 28 19 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge. 20 (Dkt. Nos. 11, 13.) On April 15, 2013, the parties filed a Joint Stipulation ( JS ) 21 that addressed the disputed issues. The court has taken the matter under 22 submission without oral argument. 23 24 25 26 27 28 Having reviewed the entire file, the court affirms the decision of the Commissioner. 1 I. 2 PROCEDURAL BACKGROUND 3 On July 29, 2009, Hernandez filed an application for disability insurance 4 benefits, alleging an onset date of May 21, 2009. Administrative Record ( AR ) 5 16, 122. The application was denied initially and on reconsideration. AR 16, 56, 6 60. Hernandez requested a hearing before an Administrative Law Judge ( ALJ ). 7 AR 75. On October 27, 2010, the ALJ conducted a hearing at which Hernandez 8 and a vocational expert ( VE ) testified. AR 28-48. On November 29, 2010, the 9 ALJ issued a decision denying benefits. AR 10-24. On March 1, 2012, the 10 Appeals Council denied the request for review. AR 3-7. This action followed. 11 II. 12 STANDARD OF REVIEW 13 Pursuant to 42 U.S.C. § 405(g), this court reviews the Commissioner s 14 decision to deny benefits. The decision will be disturbed only if it is not supported 15 by substantial evidence, or if it is based upon the application of improper legal 16 standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam); 17 Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 18 Substantial evidence means more than a mere scintilla but less than a 19 preponderance it is such relevant evidence that a reasonable mind might 20 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 21 determining whether substantial evidence exists to support the Commissioner s 22 decision, the court examines the administrative record as a whole, considering 23 adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the 24 evidence is susceptible to more than one rational interpretation, the court must 25 defer to the Commissioner s decision. Moncada, 60 F.3d at 523. 26 27 28 2 1 III. 2 DISCUSSION 3 A. 4 A person qualifies as disabled, and thereby eligible for such benefits, only 5 if his physical or mental impairment or impairments are of such severity that he is 6 not only unable to do his previous work but cannot, considering his age, 7 education, and work experience, engage in any other kind of substantial gainful 8 work which exists in the national economy. Barnhart v. Thomas, 540 U.S. 20, 9 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003). Disability 10 B. 11 Following the five-step sequential analysis applicable to disability The ALJ s Findings 12 determinations, Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006),1 the 13 ALJ found that Hernandez has the severe impairments of lumbar degenerative 14 disc disease, diabetes mellitus, and obesity. AR 18. She does not have an 15 impairment or combination of impairments that meets or equals one of the listed 16 impairments. AR 20. She has the residual functional capacity ( RFC ) to perform 17 light work, including lifting 20 pounds occasionally and 10 pounds frequently, and 18 standing and/or walking for 6 hours in an 8-hour workday. She cannot climb 19 ladders, ropes or scaffolds. She can frequently perform other postural activities, 20 such as balancing, stooping, kneeling, crouching, crawling, and climbing 21 ramps/stairs. She cannot have concentrated exposure to industrial hazards, such 22 as unprotected heights and dangerous machinery. Id. She is capable of 23 performing her past relevant work as a mold maker as generally performed, and 24 as a hand packager as actually performed. AR 23-24. 25 26 27 28 1 The five-step sequential analysis examines whether the claimant engaged in substantial gainful activity, whether the claimant s impairment is severe, whether the impairment meets or equals a listed impairment, whether the claimant is able to do his or her past relevant work, and whether the claimant is able to do any other work. Lounsburry, 468 F.3d at 1114. 3 1 C. 2 Hernandez contends the ALJ erred in failing to properly evaluate the 3 4 Treating Physician opinion of Dr. Grogan, a treating physician. An opinion of a treating physician is given more weight than the opinions of 5 non-treating physicians. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). To 6 reject an uncontradicted opinion of a treating physician, an ALJ must state clear 7 and convincing reasons that are supported by substantial evidence. Bayliss v. 8 Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). When, as here, a treating 9 physician s opinion is contradicted by another doctor, the ALJ may not reject this 10 opinion without providing specific and legitimate reasons supported by substantial 11 evidence in the record. This can be done by setting out a detailed and thorough 12 summary of the facts and conflicting clinical evidence, stating his interpretation 13 thereof, and making findings. Orn, 495 F.3d at 632 (citations and quotation 14 marks omitted). When there is conflicting medical evidence, the Secretary must 15 determine credibility and resolve the conflict. Thomas v. Barnhart, 278 F.3d 947, 16 956-57 (9th Cir. 2002) (citation and quotation marks omitted). 17 Dr. Grogan, an orthopaedic surgeon, completed five physical examination 18 reports on May 21, 2009, August 6, 2009, November 17, 2009, February 24, 19 2010, and April 20, 2010. AR 292-96, 299. On May 21, 2009, Dr. Grogan found 20 full range of motion of the shoulders, elbows, wrists and hands. AR 295. Motor 21 examination was 5/5. Sensation was intact to touch. Grip strengths on the right 22 side were 15/12 and 15/15 on the left. Gait was normal. Id. Hernandez had pain 23 to palpation in the cervical and lumbar spine. Range of motion was 70% of 24 expected normal values for the cervical spine and 75% of expected normal 25 values for the lumbar spine. Id. Hernandez had full range of motion of hips, 26 ankles, and subtalar joints bilaterally. Motor examination was 5/5, and sensation 27 was intact to touch. Straight leg raising was positive bilaterally for back pain. Id. 28 X-rays of the cervical and lumbar spine indicated multi-level degenerative disc 4 1 disease, especially in the lumbar spine at L5-S1. AR 296. Dr. Grogan diagnosed 2 Hernandez with degenerative disc disease, cervical and lumbar spine; and history 3 of diabetes mellitus, atherosclerotic cardiovascular disease with hypertension, 4 and depression. He opined that Hernandez is physically incapable of returning 5 back to her previous work as a packer of shampoo bottles and should be 6 precluded from that type of employment. Id. The remaining physical 7 examination reports were similar to the May 21, 2009 report, except that on April 8 20, 2010, Dr. Grogan opined that Hernandez should be permanently precluded 9 from returning to work as a packer. AR 292-94, 299. 10 Dr. Grogan completed nearly identical physical capacities evaluations and 11 disability letters on February 24 and October 4, 2010. AR 289-90, 297-98. 12 Hernandez could sit for three hours at one time and four hours total; stand two 13 hours at a time and three hours total; and walk one hour at a time and two hours 14 total in an eight-hour workday. She could occasionally lift or carry up to five 15 pounds. She could not use her hands for repetitive pushing and pulling of arm 16 controls, but she could perform simple grasping and fine manipulation. She could 17 not use her feet for repetitive pushing and pulling of leg controls. AR 289, 297. 18 She could occasionally bend, reach, squat, crawl or climb.2 AR 297. She had 19 mild restrictions from exposure to marked changes in temperature and humidity 20 and exposure to dust, fumes and gases. She had moderate restrictions from 21 unprotected heights, being around moving machinery, and driving automotive 22 equipment. AR 289, 297. In letters, Dr. Grogan stated that Hernandez is 23 presently partially totally disabled at least through August 1, 2010. AR 290, 298. 24 She was diagnosed with degenerative disc disease, cervical and lumbar spine, 25 and insulin dependence. AR 290, 298. 26 27 28 2 In the February 24, 2010 evaluation, Dr. Grogan opined that Hernandez could not squat, crawl or climb. AR 289. 5 1 The ALJ gave relatively little probative weight to Dr. Grogan s opinions. 2 AR 23. The ALJ noted there is no indication that [Dr. Grogan] has actually 3 provided any medical treatment. Id. [I]t appears [Hernandez] has seen Dr. 4 Grogan primarily in order to generate evidence of disability. Id. Dr. Grogan s 5 reports do not support the extreme limitations he assessed and the relatively 6 normal clinical findings in the record do not support his extreme limitations. Id. 7 The ALJ provided specific and legitimate reasons for discounting his 8 opinion. See Orn, 495 F.3d at 632. The ALJ properly considered that Dr. 9 Grogan s examination reports did not support the extreme limitations he opined. 10 AR 21, 292-95, 299. [T]he ALJ need not accept the opinion of any physician, 11 including a treating physician, if that opinion is brief, conclusory, and inadequately 12 supported by clinical findings. Bray v. Comm r of Soc. Sec. Admin., 554 F.3d 13 1219, 1228 (9th Cir. 2009) (citation omitted).3 14 The ALJ properly considered that Dr. Grogan s opinions were inconsistent 15 with the relatively normal clinical findings in the record. As the ALJ noted, 16 Hernandez s physician, Dr. Palazzolo, indicated that in April 2009, Hernandez 17 was doing better overall with her blood pressure and glucose. AR 22, 246. 18 Hernandez reported that her medication was helping her peripheral neuropathy 19 and foot pains, and she was able to walk better. AR 22, 246. In July 2009, Dr. 20 Palazzolo noted markedly good improvement of Hernandez s glucose levels 21 and some tingling of the feet. AR 237. 22 23 24 25 26 27 28 3 The ALJ also considered that the record lacks evidence showing that Dr. Grogan provided medical treatment. AR 23; Orn, 495 F.3d at 631 (ALJ may consider nature and extent of treatment relationship). The ALJ found no indication that Dr. Grogan prescribed any medications, ordered any diagnostic tests, or recommended any particular course of treatment. AR 23. The ALJ could reasonably infer that Hernandez saw Dr. Grogan to generate evidence of disability rather than provide treatment. See Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982) (ALJ may draw reasonable inferences logically flowing from the record). 6 1 The ALJ noted that the examining physician, Dr. Singh, found that 2 Hernandez was essentially normal. AR 21. Dr. Singh found that Hernandez had 3 no problems walking from the waiting room to the examination room, getting on 4 and off the examination table, or sitting comfortably during the examination. Her 5 gait was normal. AR 262. She had no swelling, tenderness or synovial 6 thickening of the hands and wrists, and had a negative Tinel s sign. She had no 7 paravertebral spasm, tension or tenderness on palpation to the neck or back. 8 She exhibited normal flexion and extension in the neck and back, and had a 9 negative straight leg raising test. She had no crepitus, clubbing, cyanosis, 10 tenderness or deformity of the upper or lower limbs. She exhibited normal ranges 11 of motion in the upper and lower extremities and joints. AR 263. She had normal 12 motor strength in all muscle groups with no evidence of atrophy, and normal 13 sensation, cerebellar function, and reflexes. AR 264. Dr. Singh noted 14 Hernandez s insulin dependent diabetes mellitus with early signs of peripheral 15 neuropathy, and acknowledged her history of back pain, knee pain and foot pain. 16 AR 265. However, he noted there are no physical findings or limitations at this 17 time. Id. He opined Hernandez could stand and walk for 6 hours and could lift 18 and carry 25 pounds occasionally and frequently. AR 22, 265. Dr. Singh s 19 opinion constituted substantial evidence because it was based on independent 20 clinical findings. See Orn, 495 F.3d at 632. 21 Hernandez contends Dr. Grogan s opinions are consistent with the record 22 as a whole. She argues that Dr. Grogan s examination records support her claim 23 that she has peripheral neuropathy of the lower extremity and changing 24 neuropathy over the course of the year. She argues that Dr. Grogan s opinions 25 are consistent with the Mission Hills Medical Group medical records that 26 demonstrate neuropathy in the upper and lower extremities (AR 215-17, 227, 27 237-42, 251); the medical records of Dr. Chaudry, a podiatrist, that indicated she 28 had plantar fasciitis and diabetic neuropathy (AR 222, 236); and the findings of 7 1 Dr. Singh, a consultative examiner, who opined that she had insulin dependent 2 diabetes mellitus and was developing early signs of peripheral neuropathy (AR 3 265). Contrary to Hernandez s argument, however, the mere existence of an 4 impairment is insufficient proof of a disability. Matthews v. Shalala, 10 F.3d 678, 5 680 (9th Cir. 1993); 20 C.F.R. §§ 416.920(f), (g). 6 7 The ALJ articulated specific and legitimate reasons for discounting Dr. Grogan s opinion. 8 D. The ALJ s RFC 9 Hernandez contends the ALJ erred in not including limitations due to 10 peripheral neuropathy in her RFC. 11 The RFC measures the claimant s capacity to engage in basic work 12 activities. Bowen v. New York, 476 U.S. 467, 471, 106 S. Ct. 2022, 90 L. Ed. 2d 13 462 (1986). The RFC is a determination of the most [an individual] can still do 14 despite [his or her] limitations. 20 C.F.R. § 404.1545(a). It is an administrative 15 finding, not a medical opinion. 20 C.F.R. § 404.1527(e)(2). The RFC takes into 16 account both exertional limitations and non-exertional limitations. When there is 17 conflicting medical evidence, the Secretary must determine credibility and resolve 18 the conflict. Thomas, 278 F.3d 947, 956-57 (citation omitted). 19 The ALJ noted that Hernandez s diabetes had not been well-controlled and 20 may have caused early diabetic peripheral neuropathy. AR 18, 265, 292-96. The 21 ALJ found that Hernandez had the RFC for light work, including lifting 20 pounds 22 occasionally and 10 pounds frequently, and standing and/or walking for 6 hours in 23 an 8-hour workday. She cannot climb ladders, ropes, or scaffolds; can frequently 24 perform other postural activities, such as balancing, stooping, kneeling, 25 crouching, crawling, and climbing on ramps/stairs; and cannot have concentrated 26 exposure to industrial hazards, such as unprotected heights or dangerous 27 machinery. AR 20. 28 8 1 Hernandez argues that her peripheral neuropathy inhibits her ability to 2 stand, walk, push, pull, lift, and manipulate objects. She cites medical records 3 from her primary care physicians at Mission Hills Medical Group, who noted 4 neuropathy with pain or numbness in the lower extremities. AR 215-17, 227, 5 237-38, 240-41. She cites the records of her podiatrist, who diagnosed plantar 6 fasciitis and diabetic neuropathy and dispensed orthotics.4 AR 222, 236. She 7 cites the records of Dr. Grogan, who noted decreased range of motion of the 8 lumbar spine, positive straight leg raising test, complaints of chronic foot pain, 9 numbness and tingling in both legs, decreased sensation in the lower extremities, 10 and pain and burning in both legs. AR 293, 295, 299. 11 The ALJ specifically considered pain and the impact of peripheral 12 neuropathy when determining Hernandez s RFC. AR 18, 21-23. He noted that 13 her subjective musculoskeletal complaints did not correlate to Dr. Singh s clinical 14 findings on examination. AR 22. He noted the lack of evidence that Hernandez 15 had sought or received injections, surgeries or other treatment apart from 16 medication to address her allegations of disabling musculoskeletal pain. Id.; see 17 Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (medication 18 constitutes conservative treatment). Despite Hernandez s allegations of pain, she 19 has no problems with dressing, grooming, and bathing herself. She can cook, do 20 dishes, do laundry, take walks, drive a car and go grocery shopping. AR 22, 261. 21 The ALJ properly discounted Dr. Grogan s opinions. Dr. Palazzolo s 22 records indicated that medication helped Hernandez s peripheral neuropathy and 23 foot pains.5 See Warre v. Comm r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th 24 25 26 27 28 4 The podiatrist found no significant edema, no sensory deficits, no clonus elicited, intact neurovascular status, equal and reactive deep tendon reflexes, and normal temperature, turgor and texture. AR 222. 5 Hernandez argues that although she was able to walk better with medication, she continued to have pain, burning, numbness, tingling in the lower extremities and some in the upper extremities. JS 31. 9 1 Cir. 2006) (impairments that can be controlled effectively with medication are not 2 considered disabling). The remaining records on which Hernandez relies do not 3 provide medical evidence of functional limitations relating to her upper and lower 4 extremities other than the limitations in the RFC. [T]he mere existence of an 5 impairment is insufficient proof of a disability. Matthews, 10 F.3d at 680. As 6 noted above, Dr. Singh found that Hernandez had insulin dependent diabetes 7 mellitus and was developing early signs of peripheral neuropathy. AR 265. He 8 found Hernandez s upper and lower extremities entirely normal. AR 263. He 9 concluded that she could stand and walk for 6 hours, walk without assistive 10 devices, and lift and carry 25 pounds occasionally and frequently. He found no 11 restrictions posturally, manipulatively and environmentally. AR 265. Dr. 12 Vaghaiwalla found that Hernandez could perform medium work with no postural 13 or manipulative limitations. AR 272-77. 14 Hernandez has not shown error. 15 E. Vocational Expert 16 Hernandez argues the ALJ erred in relying on the VE s testimony because 17 the hypothetical did not encompass all of her impairments, including pain and 18 numbness in her lower and upper extremities from peripheral neuropathy. 19 An ALJ may rely on a VE s testimony given in response to a hypothetical 20 question that contains all of the limitations the ALJ found credible and supported 21 by substantial evidence. Bayliss, 427 F.3d at 1217-18. 22 The ALJ s hypothetical contained all the limitations he found supported by 23 substantial evidence and included in his RFC.6 See Rollins v. Massanari, 261 24 F.3d 853, 858 (9th Cir. 2001) ( Because the ALJ included all of the limitations that 25 he found to exist, and because his findings were supported by substantial 26 27 28 6 Hernandez s reliance on Taylor v. Comm r of Soc. Sec. Admin., 659 F.3d 1228, 1235 (9th Cir. 2011), is misplaced. In Taylor, the ALJ failed to include in the hypothetical all of the claimant s impairments in the RFC. Taylor, 659 F.3d at 1235. 10 1 evidence, the ALJ did not err in omitting the other limitations that [the plaintiff] had 2 claimed, but had failed to prove. ); AR 20, 46-47. The VE testified that a person 3 with Hernandez s RFC could perform past relevant work as a mold maker as 4 generally performed, and a hand packager as actually performed. AR 24, 47. 5 The ALJ was entitled to rely on the VE s testimony. See Bayliss, 427 F.3d at 6 1217-18. The ALJ did not err. 7 F. Credibility 8 Hernandez argues that the ALJ improperly evaluated her credibility. 9 To determine whether a claimant s testimony regarding subjective pain or 10 symptoms is credible, an ALJ must engage in a two-step analysis. Lingenfelter 11 v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). At step one, the ALJ must 12 determine whether the claimant has presented objective medical evidence of an 13 underlying impairment which could reasonably be expected to produce the pain 14 or other symptoms alleged. Id. (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 15 (9th Cir. 1991) (en banc)). The ALJ found that Hernandez s medically 16 determinable impairments could reasonably be expected to produce the alleged 17 symptoms. AR 21. 18 Second, if the claimant meets this first test, and there is no evidence of 19 malingering, the ALJ can reject the claimant s testimony about the severity of her 20 symptoms only by offering specific, clear and convincing reasons for doing so. 21 Lingenfelter, 504 F.3d at 1036 (citation and quotation marks omitted). In making 22 a credibility determination, the ALJ must specifically identify what testimony is 23 credible and what testimony undermines the claimant s complaints[.] Greger v. 24 Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (citation omitted). The ALJ found that 25 Hernandez s statements concerning the intensity, persistence and limiting effects 26 of the alleged symptoms were not credible to the extent they were inconsistent 27 with the RFC. AR 21. 28 11 1 In weighing credibility, the ALJ may consider factors including: the nature, 2 location, onset, duration, frequency, radiation, and intensity of any pain; 3 precipitating and aggravating factors (e.g., movement, activity, environmental 4 conditions); type, dosage, effectiveness, and adverse side effects of any pain 5 medication; treatment, other than medication, for relief of pain; functional 6 restrictions; the claimant s daily activities; and ordinary techniques of credibility 7 evaluation. Bunnell, 947 F.2d at 346 (citing Social Security Ruling 88-13)7 8 (quotation marks omitted). The ALJ may consider (a) inconsistencies or 9 discrepancies in a claimant s statements; (b) inconsistencies between a 10 claimant s statements and activities; (c) exaggerated complaints; and (d) an 11 unexplained failure to seek treatment. Thomas, 278 F.3d at 958-59. 12 The ALJ noted Hernandez s allegations that she had pain all over, could 13 walk no more than one block due to chronic musculoskeletal pain, could lift 5 to 14 10 pounds, could stand/walk for 15 minutes and sit for 30-45 minutes, and could 15 not work because of musculoskeletal pain.8 AR 21, 37-39, 166-67. The ALJ 16 discounted Hernandez s credibility for at least four reasons: (1) lack of supporting 17 objective evidence; (2) inconsistencies in Hernandez s statements; (3) 18 conservative treatment; and (4) inconsistencies between Hernandez s statements 19 and daily activities. AR 21-22. 20 Although lack of medical evidence cannot form the sole basis for 21 discounting pain testimony, it is a factor that the ALJ can consider in his credibility 22 analysis. Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). For the reasons 23 discussed above, the ALJ determined that the objective medical evidence does 24 25 26 27 28 7 Social Security Rulings do not have the force of law. Nevertheless, they constitute Social Security Administration interpretations of the statute it administers and of its own regulations, and are given deference unless they are plainly erroneous or inconsistent with the Act or regulations. Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989). 8 Contrary to her argument, the ALJ cited to Hernandez s testimony regarding her musculoskeletal pain. AR 22. 12 1 not support the alleged severity of Hernandez s symptoms. The ALJ did not rely 2 upon this reason alone and did not err. 3 The ALJ noted that Hernandez s statements regarding her allegedly 4 disabling symptoms have not been consistently described. AR 22. An ALJ may 5 consider inconsistencies in a claimant s statements when weighing a claimant s 6 credibility. Thomas, 278 F.3d at 958-59. Hernandez testified that she stopped 7 working due to arm pain. AR 22, 36. However, in the Disability Reports, 8 Hernandez did not mention arm pain among the conditions that prevented her 9 from working. AR 22, 153, 176, 200. She stated that she stopped working 10 11 because she was laid off. AR 154. The ALJ noted that Hernandez s treatment ha[d] been essentially routine 12 and/or conservative in nature. He found no evidence that Hernandez had sought 13 or received injections, surgeries, or treatment other than medication. AR 22. 14 Hernandez has identified no treatment that was not conservative. [E]vidence of 15 conservative treatment is sufficient to discount a claimant s testimony regarding 16 severity of an impairment. Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) 17 (citation omitted). 18 The ALJ noted that Hernandez s alleged limitations appear to be 19 inconsistent with her reported daily activities, especially her considerable 20 amount of standing/walking. AR 22. An ALJ may consider a claimant s daily 21 activities when weighing credibility. Bunnell, 947 F.2d at 346. In October 2009, 22 Hernandez indicated she had no problems dressing, grooming and bathing. AR 23 22, 261. She could shop for groceries, cook, do dishes, do laundry and take 24 short walks. AR 22, 261. At the hearing, Hernandez testified she leaves the 25 house every day to visit a daughter or go grocery shopping with her husband. AR 26 22, 38. She cooks, drives and cleans the house. AR 22, 36, 38-39. When the 27 evidence is susceptible to more than one rational interpretation, the court must 28 defer to the Commissioner s decision. Moncada, 60 F.3d at 523. 13 1 The ALJ s credibility finding is supported by substantial evidence, and this 2 court may not engage in second-guessing. Thomas, 278 F.3d at 959 (citing 3 Morgan v. Comm r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999)). 4 G. Development of the Record 5 Hernandez contends the ALJ failed to develop the record regarding her 6 7 mental health treatment. It is the claimant s duty to prove she is disabled. Mayes v. Massanari, 276 8 F.3d 453, 459 (9th Cir. 2001) (as amended); see 42 U.S.C. § 423(d)(5)(A) (the 9 claimant must furnish medical and other evidence of her disability); 20 C.F.R. § 10 404.1512(c) ( You must provide medical evidence showing that you have 11 impairment(s) and how severe it is during the time you say you are disabled. ). 12 The ALJ . . . has an independent duty to fully and fairly develop the record 13 and to assure that the claimant s interests are considered. Tonapetyan v. Halter, 14 242 F.3d 1144, 1150 (9th Cir. 2001) (citations and quotation marks omitted). 15 The ALJ must be especially diligent when the claimant . . . has only a lay 16 representative. McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011) (internal 17 quotation marks omitted). An ALJ s duty to develop the record further is 18 triggered only when there is ambiguous evidence or when the record is 19 inadequate to allow for proper evaluation of the evidence. Mayes, 276 F.3d at 20 459-60. This principle does not, however, allow a claimant to shift her own 21 burden of proving disability to the ALJ. Id. at 459. 22 Hernandez testified that Dr. Palazzollo prescribed medication for anxiety or 23 depression, but that she gets the medication from Mexico, and sees Dr. Torrijos 24 in Mexico once a year.9 AR 39-40. Hernandez argues the ALJ should have 25 obtained the records from Mexico or instructed her representative to obtain them. 26 27 28 9 The record contains Dr. Palazzollo s treatment records. AR 237-53. Dr. Palazzollo noted only anxiety about domestic problems. AR 239. 14 1 The ALJ s duty to develop the record further was not triggered. The ALJ 2 concluded Hernandez has an affective disorder that would not have more than a 3 minimal effect on her ability to work. AR 19. He noted that she did not allege any 4 mental impairment, psychological symptoms, or mental limitations on the 5 Disability Report she completed in connection with her disability application. AR 6 19, 153. In her Disability Report Appeal, Hernandez alleged a new condition 7 in that she was sometimes depressed. AR 19, 200. 8 The ALJ noted that the record did not reflect a significantly limiting 9 depressive disorder. AR 19. Dr. Duong performed a psychiatric evaluation on 10 October 20, 2009. AR 19, 267-71. Hernandez reported that she started feeling 11 depressed about two years ago with her father s death, but she was not currently 12 seeing a psychiatrist, was not taking any psychiatric medications, and had never 13 been hospitalized psychiatrically. AR 19, 268. Her daily activities were 14 unaffected by psychiatric reasons. AR 19, 269. Dr. Duong found that 15 Hernandez was alert, cooperative and relaxed, and maintained good eye contact. 16 Her psychomotor activity, thought process, and thought content were within 17 normal limits. Her affect was depressed but alert and oriented to person, place, 18 time, and situation. AR 19, 269. Dr. Duong diagnosed depressive disorder, NOS 19 with a Global Assessment of Functioning ( GAF ) score of 75.10 He opined that 20 Hernandez s ability to perform basic mental work activities was normal. AR 19, 21 270. The State Agency psychiatric consultant, Dr. Balson, agreed that 22 Hernandez did not have a severe mental impairment. AR 19-20, 278-88. In 23 addition, the ALJ noted that the lack of psychiatric treatment suggested that 24 Hernandez s depressive symptoms would not significantly interfere with her ability 25 to work. AR 19. 26 27 28 10 A GAF of 71-80 indicates [i]f symptoms are present, they are transient and expectable reactions to psychosocial stressors . . . ; no more than slight impairment in social, occupational, or school functioning. Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. text rev. 2000). 15 1 The ALJ did not find that the record was insufficient or inadequate to 2 determine disability. Nor does the record establish ambiguity or inadequacy. 3 There was no request that the ALJ hold the record open to allow her to obtain Dr. 4 Torrijos records from Mexico. Hernandez s representative elicited testimony 5 regarding Dr. Torrijos and established that she takes Numencial for depression 6 once or twice a day. AR 40. The ALJ did not err. 7 IV. 8 ORDER 9 10 11 12 IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment herein on all parties or their counsel. 13 14 15 DATED: October 24, 2013 ALICIA G. ROSENBERG United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 16

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