Diane Garcia Melendez v. Michael J. Astrue, No. 5:2012cv00452 - Document 15 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Plaintiff Diane Garcia Melendez filed this action on April 11, 2012. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge on May 14 an d November 3, 2012. (Dkt. Nos. 7, 13.) On November 1, 2012, the parties filed a Joint Stipulation (JS) that addressed the disputed issues. The court has taken the matter under submission without oral argument. IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and remanded for consideration of the opinions of Dr. Lorber and Dr.Lankford, and a possible sit/stand option. (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 DIANE GARCIA MELENDEZ, 12 Plaintiff, 13 v. 14 15 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 16 17 18 ) ) ) ) ) ) ) ) ) ) ) ) NO. EDCV 12-452 AGR MEMORANDUM OPINION AND ORDER Plaintiff Diane Garcia Melendez filed this action on April 11, 2012. 19 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the 20 magistrate judge on May 14 and November 3, 2012. (Dkt. Nos. 7, 13.) On 21 November 1, 2012, the parties filed a Joint Stipulation ( JS ) that addressed the 22 disputed issues. The court has taken the matter under submission without oral 23 argument. 24 25 26 27 28 Having reviewed the entire file, the decision of the Commissioner is reversed and remanded for further proceedings consistent with this opinion. 1 I. 2 PROCEDURAL BACKGROUND 3 On March 17, 2008, Melendez filed an application for supplemental 4 security income, which alleged a disability onset date of March 13, 2007. 5 Administrative Record ( AR ) 12, 223-29. The application was denied initially and 6 on reconsideration. AR 12, 98-99. Melendez requested a hearing before an 7 Administrative Law Judge ( ALJ ). On February 17, 2010, the ALJ conducted a 8 hearing at which Melendez and a medical expert ( ME ) testified. AR 53-88. The 9 hearing was continued to allow Melendez to submit additional medical records. 10 AR 73-74, 88. On June 4, 2010, the ALJ conducted a supplemental hearing at 11 which Melendez and a vocational expert ( VE ) testified. AR 29-52. On July 21, 12 2010, the ALJ issued a decision denying benefits. AR 9-22. On January 30, 13 2012, the Appeals Council denied the request for review. AR 1-5. This action 14 followed. 15 II. 16 STANDARD OF REVIEW 17 Pursuant to 42 U.S.C. § 405(g), this court reviews the Commissioner s 18 decision to deny benefits. The decision will be disturbed only if it is not supported 19 by substantial evidence, or if it is based upon the application of improper legal 20 standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam); 21 Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 22 Substantial evidence means more than a mere scintilla but less than a 23 preponderance it is such relevant evidence that a reasonable mind might 24 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 25 determining whether substantial evidence exists to support the Commissioner s 26 decision, the court examines the administrative record as a whole, considering 27 adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the 28 evidence is susceptible to more than one rational interpretation, the court must 2 1 defer to the Commissioner s decision. Moncada, 60 F.3d at 523. 2 III. 3 DISCUSSION 4 A. 5 A person qualifies as disabled, and thereby eligible for such benefits, only 6 if his physical or mental impairment or impairments are of such severity that he is 7 not only unable to do his previous work but cannot, considering his age, 8 education, and work experience, engage in any other kind of substantial gainful 9 work which exists in the national economy. Barnhart v. Thomas, 540 U.S. 20, 10 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003) (citation and quotation marks 11 omitted). 12 B. 13 The ALJ found Melendez has the following severe impairments: 14 degenerative disc disease of the lumbar spine, sleep apnea, and depressive 15 disorder. AR 14. She does not have an impairment or combination of 16 impairments that meets or equals one of the listed impairments. AR 15. She has 17 the residual functional capacity ( RFC ) to lift and/or carry twenty pounds 18 occasionally and ten pounds frequently, and stand/walk or sit for six hours. AR 19 16. She can occasionally climb ramps and stairs, balance, bend, stoop, crouch, 20 and kneel, but never climb scaffolds or ropes. Id. She should avoid working with 21 dangerous machinery or at unprotected heights, or with fumes, odors, gases, 22 dust, and chemicals. Id. She should not perform safety operations or be 23 responsible for the safety of others, or perform work requiring hyper-vigilance, 24 defined as intense sustained concentration such as air traffic controller. Id. She 25 has no past relevant work, but there are jobs that exist in significant numbers in 26 the national economy that she can perform such as cashier II and small products 27 assembler. AR 21-22. Disability The ALJ s Findings 28 3 1 C. 2 Melendez contends the ALJ erred by not considering all of her impairments 3 4 Severe Impairments and failing to determine whether those impairments were severe. At step two of the sequential analysis, the claimant bears the burden of 5 demonstrating a severe, medically determinable impairment that meets the 6 duration requirement. 20 C.F.R. § 404.1520(a)(4)(ii); Bowen v. Yuckert, 482 U.S. 7 137, 146 n.5, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987). To satisfy the duration 8 requirement, the severe impairment must have lasted or be expected to last for a 9 continuous period of not less than twelve months. Id. at 140. 10 Your impairment must result from anatomical, physiological, or 11 psychological abnormalities which can be shown by medically 12 acceptable clinical and laboratory diagnostic techniques. A physical 13 or mental impairment must be established by medical evidence 14 consisting of signs, symptoms, and laboratory findings, not only by 15 your statement of symptoms. 16 20 C.F.R. § 404.1508; 20 C.F.R. § 416.908. [T]he impairment must be one that 17 significantly limits your physical or mental ability to do basic work activities. 1 18 Yuckert, 482 U.S. at 154 n.11 (quoting 20 C.F.R. § 404.1520(c)); Smolen, 80 19 F.3d at 1290 ( [A]n impairment is not severe if it does not significantly limit [the 20 claimant s] physical ability to do basic work activities. ) (citation and quotation 21 marks omitted). 22 23 An impairment or combination of impairments may be found not severe only if the evidence establishes a slight abnormality that has no more than a 24 25 26 27 28 1 The ability to do basic work activities includes physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling, capacities for seeing, hearing, and speaking, understanding, carrying out, and remembering simple instructions, use of judgment, responding appropriately to supervision, co-workers, and usual work situations, and dealing with changes in a routine work setting. Yuckert, 482 U.S. at 168 n.6 (citation and quotation marks omitted); Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). 4 1 minimal effect on an individual s ability to work. Webb v. Barnhart, 433 F.3d 2 683, 686-87 (9th Cir. 2005) (emphasis in original, citation omitted). Step two is a 3 de minimis screening device [used] to dispose of groundless claims and the 4 ALJ s finding must be clearly established by medical evidence. Id. at 687 5 (citations and quotation marks omitted). 6 The ALJ found that Melendez has the severe impairments of degenerative 7 disc disease of the lumbar spine, sleep apnea, and depressive disorder. AR 14. 8 Melendez argues that the ALJ did not fully consider her anxiety, lupus, Sjogren s 9 syndrome, obesity, fibromyalgia, and chronic fatigue syndrome.2 10 Even assuming that the ALJ erred in failing to identify anxiety, lupus, 11 Sjogren s syndrome, obesity, fibromyalgia and chronic fatigue syndrome as 12 severe impairments at step two, any error was harmless because prejudice could 13 occur only in later steps. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) 14 (failure to address particular impairment at step two is harmless when ALJ 15 evaluates claimant s impairments in later steps of sequential evaluation process); 16 see also Stout v. Comm r of Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 17 2006) (ALJ s error harmless where it is inconsequential to the ultimate 18 nondisability determination ). 19 The ALJ stated he considered all of [Melendez s] impairments (severe and 20 nonsevere) in determining her RFC. AR 15. The ALJ acknowledged the 21 diagnoses of Sjogren s syndrome and an undifferentiated connective tissue 22 23 24 25 26 27 28 2 In her Reply, Melendez argues the ALJ did not properly evaluate whether her PTSD was severe. Dr. Whitehead Gleaves provided the only PTSD diagnosis in the record based on Melendez s memories of childhood sexual abuse. AR 560. As discussed below, the ALJ properly discounted Dr. Whitehead Gleaves opinion. In addition, the record contains no evidence showing that PTSD had more than a minimal effect on her ability to work. 5 1 disease.3 AR 14, 678-81. On March 16, 2010, Dr. Ahluwalia, a rheumatologist, 2 found Melendez had no synovitis or tender joints, and full range of motion in all 3 joints. AR 14, 18, 822. Dr. Ahluwalia initially diagnosed a history of systemic 4 lupus erythematosus, hypothyroidism, plaquenil therapy, degenerative disc 5 disease of the lumbar spine, fibromyalgia and obesity. AR 14, 822. On April 20, 6 2010, after treatment, further examination, and review of laboratory data, Dr. 7 Ahluwalia diagnosed undifferentiated connective tissue disease with +ANA and 8 +SSA ab and back pain. The ALJ noted that Melendez s treating physician, Dr. 9 Hillis, noted fibromyalgia, chronic back pain, chronic fatigue syndrome, dry eyes 10 and dry mouth.4 AR 18, 690. The ALJ gave Dr. Hillis opinion little to no weight 11 for the reasons discussed below. AR 18, 688-90. The ALJ noted the diagnosis 12 of anxiety and inferred that it was reasonably controlled with medication.5 AR 19. 13 The Commissioner argues that Melendez failed to raise any implicit claim 14 [in her application or testimony] that her obesity was a limiting factor. JS 6. 15 Melendez argues that at 5'3" and at least 250-300 pounds, obesity would have a 16 grave impact on her conditions and her ability to perform work-related tasks. 6 JS 17 18 19 20 3 Undifferentiated connective tissue disease ( UCTD ) is a systemic autoimmune disease that can involve joints, cartilage, muscles, and skin. UCTD includes syndromes with features that do not meet the diagnostic criteria for any one connective tissue disease such as Lupus or Sjogren s syndrome. See Listing § 14.06. 21 4 22 5 23 24 25 26 27 28 The ALJ mistakenly referred to Dr. Hillis as Dr. Hill. AR 18. In January 2010, Melendez reported that when she stopped taking her antidepressant for a month, she experienced increased anxiety and more panic attacks. AR 19, 777. When she resumed taking Zoloft and Wellbutrin, she reported decreased anxiety and depressive symptoms. AR 19, 803. 6 Obesity can be considered in combination with other impairments to determine whether, when viewed in the aggregate, the multiple impairments are equivalent to a listed impairment. See Social Security Ruling ( SSR ) 02-1p (2002). 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). 6 1 5. Again, any error would be harmless because prejudice could occur only in the 2 later steps. See Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). 3 D. 4 Melendez contends the ALJ improperly considered whether she met or 5 6 Medical Equivalency to Listed Impairments 1.04 and 14.10 equaled Listing 1.04 and Listing 14.10. The claimant bears the burden of demonstrating that his impairments are 7 equivalent to one of the listed impairments that are so severe as to preclude 8 substantial gainful activity. Bowen, 482 U.S. at 141, 146 n. 5. If the impairment 9 meets or equals one of the listed impairments, the claimant is conclusively 10 presumed to be disabled. If the impairment is not one that is conclusively 11 presumed to be disabling, the evaluation proceeds to the fourth step. Id. at 141; 12 see also Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999); 20 C.F.R. §§ 13 404.1520(a)(4)(iii), 416.920(a)(4)(iii). 14 The listings define impairments that would prevent an adult, regardless of 15 his age, education, or work experience, from performing any gainful activity, not 16 just substantial gainful activity. Sullivan v. Zebley, 493 U.S. 521, 532, 110 S. 17 Ct. 885, 107 L. Ed. 2d 967 (1990) (quoting 20 C.F.R. § 416.925(a)) (emphasis in 18 original). For a claimant to show that his impairment matches a listing, it must 19 meet all of the specified medical criteria. An impairment that manifests only some 20 of those criteria, no matter how severely, does not qualify. Id. at 530 (citation 21 omitted) (emphasis in original). To equal a listed impairment, a claimant must 22 establish symptoms, signs and laboratory findings at least equal in severity and 23 duration to the characteristics of a relevant listed impairment, or, if a claimant s 24 impairment is not listed, then to the listed impairment most like the claimant s 25 impairment. Tackett, 180 F.3d at 1099 (quoting 20 C.F.R. § 404.1526) 26 (emphasis in original). Medical equivalence must be based on medical 27 findings. A generalized assertion of functional problems is not enough to 28 establish disability at step three. Id. at 1100 (quoting 20 C.F.R. § 404.1526). 7 1 An ALJ must evaluate the relevant evidence before concluding that a claimant s 2 impairments do not meet or equal a listed impairment. A boilerplate finding is 3 insufficient to support a conclusion that a claimant s impairment does not do so. 4 Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). 5 Listing 1.04 governs musculoskeletal impairments and requires a claimant 6 to show a disorder of the spine such as herniated nucleus pulposus, spinal 7 arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet 8 arthritis, vertebral fracture[], resulting in compromise of a nerve root (including the 9 cauda equina) or the spinal cord with either: A. Evidence of nerve root 10 compression characterized by neuro-anatomic distribution of pain, limitation of 11 motion of the spine, motor loss (atrophy with associated muscle weakness or 12 muscle weakness) accompanied by sensory or reflex loss and, if there is 13 involvement of the lower back, positive straight-leg raising test (sitting and 14 supine); B. Spinal arachnoiditis, confirmed by an operative note or pathology 15 report of tissue biopsy, or by appropriate medically acceptable imaging, 16 manifested by severe burning or painful dysesthesia, resulting in the need for 17 changes in position or posture more than once every 2 hours; or C. Lumbar 18 spinal stenosis resulting in pseudoclaudication, established by findings on 19 appropriate medically acceptable imaging, manifested by chronic nonradicular 20 pain and weakness, and resulting in inability to ambulate effectively. 20 C.F.R. 21 Pt. 404, Subpt. P, App. 1, § 1.04. 22 Melendez does not demonstrate that she meets or equals Listing 1.04. 23 She notes that on April 30, 2007, approximately six weeks after she fell while 24 working at Sonic, she was diagnosed by Robert Chouteau, D.O., with traumatic 25 cervical, thoracic, and lumbar myositis. JS 11-12; AR 490. She had bilateral S1 26 joint lumbar dysfunction with lumbar RNP at L4-L5 with right leg radiculopathy 27 and severe weakness to the extensor hallicum longus, right leg, at 3/5. JS 12; 28 AR 491. She had straight-leg raising 50 degrees with positive tripod sign with 8 1 definite weakness at 3/5 in the extensor hallucis longus. JS 12; AR 491. She 2 had limitation on full flexion and extension of the cervical and thoracic spine.7 JS 3 12; AR 491. However, these findings alone are not sufficient to demonstrate that 4 she satisfies Listing 1.04. The ALJ noted that on May 15, 2007, Melendez went 5 to the Emergency Department complaining of back pain, but the physical 6 examination revealed CVA tenderness, no midline tenderness, no numbness, 7 pain on movement, severe pain on palpation to flank, no redness, full range of 8 motion, no saddle parethesias, intact sensation, and 5/5 strength in all 9 extremities. AR 17, 408. An MRI of the lumbar spine performed on April 16, 10 2007 showed minor degenerative disc disease at T10-11, L4-5, and L5-S1 levels 11 with mild bulging of the L4-5 disc. AR 17, 488. An Emergency Department 12 record dated April 13, 2007 reflects normal range of motion except for increasing 13 pain with back movements, no significant neurological abnormalities, and 14 negative straight leg raising tests. AR 17, 420. The ALJ also noted that Dr. 15 Chouteau opined that based on radiographs and the April 16, 2007 MRI, 16 Melendez s lumbar spine and pelvis were normal and her complaints of severe 17 pain and lower extremity weakness were not consistent with her MRI. AR 17, 18 374. Melendez was noted to have poor range of motion in May and July 2008, 19 yet an MRI of the lumbar spine on June 12, 2008 revealed mild disc protrusions 20 at L4-5 and L5-S1. AR 17, 587, 602, 626. Treatment records from Dr. Ahluwalia, 21 dated March 16, 2010, indicated Melendez had full range of motion of all joints 22 with no synovitis or tenderness. AR 18, 822. Dr. Lorber found no evidence of 23 focal neurologic deficit in the lower extremity. AR 69. 24 The ALJ considered Listing 14.10, Sjogren s syndrome, but found that 25 26 27 28 7 Melendez also notes that in May 2007, she was limited to not lifting anything over 10 pounds and told to avoid prolonged sitting and other activities. JS 12; AR 410. The limitations are listed on Emergency Department discharge instructions and appear to be generic instructions for spine related injuries lasting 2-3 weeks. AR 410. 9 1 Melendez did not meet or equal the listing. AR 15. Listing 14.10 requires A. 2 Involvement of two or more organs/body systems, with: 1. One of the 3 organs/body systems involved to at least a moderate level of severity; and 2. At 4 least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, 5 or involuntary weight loss); or B. Repeated manifestations of Sjögren s 6 syndrome, with at least two of the constitutional symptoms or signs (severe 7 fatigue, fever, malaise, or involuntary weight loss) and one of the following at the 8 marked level: 1. Limitation of activities of daily living; 2. Limitation in 9 maintaining social functioning; 3. Limitation in completing tasks in a timely 10 manner due to deficiencies in concentration, persistence, or pace. 20 C.F.R. Pt. 11 404, Subpt. P, App. 1, § 14.10. 12 Melendez contends the ALJ dismissed her Sjogren s syndrome diagnosis. 13 She argues that she likely meets or equals Listing 14.10 because she has 14 lupus, fibromyalgia, and severe mental illness. She suffers from significant 15 fatigue and malaise, has cognitive dysfunction and poor memory, has 16 experienced involuntary weight loss (although she is still obese), and has been 17 treated for significant back pain. 18 Melendez does not demonstrate that she meets or equals Listing 14.10. 19 The ALJ acknowledged that she was serum positive for Sjogren s syndrome and 20 an undifferentiated connective tissue disease, but found no indication that her 21 conditions were of a moderate level of severity. AR 14, 823. She complained of 22 dry eyes and fatigue, and then worsening nausea, vomiting, and arthralgia, but 23 examination showed no synovitis or tender joints and full range of motion in all 24 joints. AR 14, 679, 821-22. The ALJ found no marked limitation of activities of 25 daily living, social functioning, or concentration, persistence, or pace. AR 15. He 26 noted that Dr. Whitehead Gleaves mental status examination indicated Melendez 27 was fully oriented, could repeat five digits forward and three digits backward, 28 could learn a list of three words after one repetition, could recall two out of three 10 1 words after a five minute interval, could name the president of the United States, 2 could complete serial threes with no mistakes, and had average intelligence. AR 3 19, 559. Dr. Whitehead Gleaves noted Melendez expressed her thoughts in a 4 coherent and logical manner, and had no loose associations or tangents. AR 19- 5 20, 559. Dr. Lober found no evidence of end organ damage. AR 70. 6 Alternatively, Melendez argues that she meets the standard for medical 7 equivalency because she had multiple impairments that would be affected by her 8 obesity. Melendez s reliance on Celaya is misplaced. Here, the record lacks 9 evidence showing that her obesity exacerbated her condition. Melendez argues 10 that her extra weight would have an impact on her severe back pain and the 11 ability to ambulate, but she offers no evidence showing equivalence. See Burch, 12 400 F.3d at 683 ( An ALJ is not required to discuss the combined effects of a 13 claimant s impairments or compare them to any listing in an equivalency 14 determination, unless the claimant presents evidence in an effort to establish 15 equivalence. ). Melendez has not carried her burden to establish that her 16 impairments meet or medically equal Listing 1.04 or Listing 14.10, and has not 17 demonstrated that the ALJ erred at step three of the sequential evaluation. 18 In the Reply, Melendez argues that the additional medical evidence she 19 submitted between the first and second hearings contained an abundance of 20 psychological/psychiatric evidence that would have benefitted from the eye and 21 testimony of a mental health expert. 8 JS 17. Exhibits 25F-28F were submitted 22 after the first hearing. AR 205. Exhibit 25F consists of a laboratory report. AR 23 799-800. Exhibit 26F consists of progress notes from Big Bear Lake Medical 24 25 26 27 28 8 She also contends that she submitted additional evidence to the Appeals Council that documented the diagnosis of Sjogren s. However, the only additional evidence that the Appeals Council made part of the record was Exhibit 31B (request for review of hearing decision/order with contentions dated July 30, 2010), Exhibit 32B (good cause statement response regarding untimely filing dated December 1, 2011), and Exhibit 16E (representative correspondence dated August 8, 2011). AR 5. 11 1 Group from January 2010 through March 2010 regarding complaints of blood in 2 vomit and stool, abdominal pain, SOB during day, flare up of lupus, increased 3 rash on abdomen, recent fall with pain to right leg and bruising, continued weight 4 loss, increased pain and left arm numbness, esophageal reflux, anxiety, panic 5 and depressive symptoms, and trouble breathing. AR 801-06. As the ALJ noted, 6 Melendez reported that her crying, depressive symptoms and anxiety decreased 7 after she resumed taking Zoloft and Wellbutrin on January 18, 2010. AR 19, 803. 8 Exhibit 27F contains the same progress notes as in Exhibit 26F plus laboratory 9 results showing serum positive results for ANA and Sjogren s.9 AR 809-18. 10 Exhibit 28F consists of Dr. Ahluwalia s report and notes from March 2010 11 (diagnosing history of systemic lupus erythematosus, hypothyroidism, plaquenil 12 therapy, degenerative disc disease of the lumbar spine, fibromyalgia, and 13 obesity) and April 2010 (diagnosing undifferentiated connective tissue disease 14 with +ANA and +SSA ab and back pain). AR 822, 824. Based on the additional 15 evidence submitted, an updated medical opinion under SSR 96-6p was not 16 required. See SSR 96-6p ( [A]n administrative law judge and the Appeals 17 Council must obtain an updated medical opinion from a medical expert . . . [w]hen 18 additional medical evidence is received that in the opinion of the administrative 19 law judge or the Appeals Council may change the State agency medical or 20 psychological consultant s finding that the impairment(s) is not equivalent in 21 severity to any impairment in the Listing of Impairments. ). 22 To the extent Melendez makes arguments regarding Listing 14.06 and the 23 need to consult a medical expert, her arguments fail. Melendez argues that the 24 ALJ did not mention listing 14.06 (undifferentiated and mixed connective tissue 25 disease). Although the ALJ did not specifically discuss Listing 14.06, he 26 27 28 9 The laboratory results in Exhibit 27F are duplicates of laboratory results in Exhibit 24F (without marginalia), which was not admitted because of the marginalia. AR 35. 12 1 addressed the diagnosis of undifferentiated and mixed connective tissue disease. 2 AR 14. Dr. Lorber, the ME, testified that Melendez did not meet or equal Listing 3 14.06. AR 70; see Gonzalez v. Sullivan, 914 F.2d 1197, 1200-01 (9th Cir. 1990) 4 ( It is unnecessary to require the Secretary, as a matter of law, to state why a 5 claimant failed to satisfy every different section of the listing of impairments. ). 6 Melendez further contends that the ALJ erred by not consulting with a 7 medical expert on the issue of equivalency after she submitted additional records. 8 At the first hearing, Dr. Lorber testified Melendez did not meet or equal Listing 9 1.04 because there was no evidence of focal neurologic deficit in the lower 10 extremity. AR 69. He testified Melendez did not meet or equal Listing 14.06 11 because there was no evidence of end-organ disease in her vision, kidneys or 12 any other part of her body. AR 69-70, 678. The records submitted after the first 13 hearing do not provide evidence of focal neurologic deficit in the lower extremity 14 or end-organ disease. AR 166-67, 799-825. The ALJ did not err. 15 E. The ALJ s RFC Determination 16 The RFC determination measures the claimant s capacity to engage in 17 basic work activities. Bowen v. New York, 476 U.S. 467, 471, 106 S. Ct. 2022, 18 90 L. Ed. 2d 462 (1986). The RFC assessment is a determination of the most 19 [an individual] can still do despite [his or her] limitations. 20 C.F.R. § 20 404.1545(a). It is an administrative finding, not a medical opinion. 20 C.F.R. § 21 404.1527(e)(2). The RFC takes into account both exertional limitations and 22 non-exertional limitations. When there is conflicting medical evidence, the 23 Secretary must determine credibility and resolve the conflict. Thomas, 278 F.3d 24 947, 956-57 (citation omitted). Even if an impairment is considered non-severe, 25 in determining a claimant s residual functional capacity, the ALJ must consider 26 the limiting effects of all of the claimant s impairments. 20 C.F.R. § 416.945(e); 27 SSR 96-8p. 28 The ALJ found that Melendez has the RFC for light work, can occasionally 13 1 climb ramps and stairs, balance, bend, stoop, crouch, and kneel, but can never 2 climb scaffolds or ropes. AR 16. She should avoid working with dangerous 3 machinery or at unprotected heights, and with fumes, odors, gases, dust, and 4 chemicals. Id. She should not perform safety operations or be responsible for 5 the safety of others, and should not perform work requiring hyper-vigilance. Id. 6 Dr. Lorber, an ME, testified that he considered Melendez s impairments, 7 including obesity, and reviewed her medical records. He concluded she could 8 nevertheless perform sedentary work. AR 70-71. The ALJ did not mention or 9 address the ME s opinion. 10 Dr. Lankford, a state agency review physician, opined that Melendez had 11 marked limitations in her ability to understand, remember and carry out detailed 12 instructions, and in her ability to interact appropriately with the general public.10 13 AR 669-70. Although the ALJ rejected Dr. Lankford s opinion that Melendez had 14 moderate limitations in social functioning, AR 19, the ALJ did not address these 15 restrictions. 16 The ALJ discounted Melendez s testimony that she was unable to sit for 17 more than ten minutes at a time based on his observation that, at the hearing, 18 she was able to sit twice as long. AR 21; see also AR 555 (noting that Melendez 19 complained of back pain and stood up to stretch after about 25 minutes of sitting). 20 The matter will be remanded for consideration of the opinions of Dr. Lorber 21 and Dr. Lankford, and a potential sit/stand option. However, contrary to 22 Melendez s argument, the ALJ discussed Dr. Whitehead Gleaves opinions and 23 rejected them for reasons that are supported by substantial evidence. AR 19-20. 24 The ALJ noted that the record showed no reports of auditory hallucinations and 25 no significant interpersonal problems with health care providers or her employers. 26 27 28 10 The court construes the word detailed on AR 671 as a typographical error and that the correct word is simple, consistent with the first two pages of his report. 14 1 AR 19. The mental status examination results showed only mild difficulty with 2 tasks requiring attention, concentration and memory. AR 19-20, 559. Dr. 3 Whitehead Gleaves relied on Melendez s subjective reports, which the ALJ 4 properly discounted.11 AR 19. Contrary to Melendez s contention, Dr. Whitehead 5 Gleaves did not observe Melendez suffering from hypervigilance, intrusive 6 thoughts, anxiety and recurrent nightmares. Rather, Melendez reported such 7 conditions to Dr. Whitehead Gleaves. AR 557. The ALJ inferred that because 8 Melendez s mental symptoms increased when she stopped taking 9 antidepressants and decreased when she resumed taking her medication, her 10 symptoms were reasonably controlled with medication. AR 19. The ALJ 11 concluded that the evidence was inconsistent with Dr. Whitehead Gleaves 12 assessment of Melendez s GAF score and her opinion that it would be difficult for 13 Melendez to function in an 8-hour day. AR 19. 14 Melendez incorrectly argues that the ALJ s finding at step two regarding a 15 severe mental impairment contradicts his findings that her mental impairment 16 results in no restrictions of daily living, mild difficulties in social functioning, mild to 17 moderate restrictions in concentration, and no episodes of decompensation. JS 18 20. The existence of a severe mental impairment found at step two does not 19 necessarily equate to a finding of a disabling RFC. See Hoopai v. Astrue, 499 20 F.3d 1071, 1076 (9th Cir. 2007) (stating the satisfaction of the requirements at 21 step two does not lead to the conclusion that the claimant has satisfied the 22 requirements for disability). 23 24 25 26 27 28 11 Melendez argues that Dr. Whitehead Gleaves reviewed other medical reports in conjunction with the consultative examination and did not rely solely on her subjective reports. JS 21. However, as the Commissioner argues, Dr. Whitehead Gleaves reviewed a daily activity questionnaire filled out by Melendez and a May 11, 2007 injection consultation for low back pain from Metroplex Orthopedics indicating that patient feels depressed and describing Melendez as clearly depressed. AR 370, 555. The other notes Dr. Whitehead Gleaves reviewed were from the Emergency Room regarding abdominal pain. AR 555. Any error the ALJ made in stating that Dr. Whitehead Gleaves relied solely on Melendez s subjective reports is harmless. 15 1 The ALJ properly evaluated the opinion of Dr. Hillis, a treating physician 2 who completed a Medical Opinion Re: Ability To Do Work-Related Activities form 3 dated December 4, 2008. AR 688-90. An opinion of a treating physician is given 4 more weight than the opinion of non-treating physicians. Orn v. Astrue, 495 F.3d 5 625, 631 (9th Cir. 2007). To reject an uncontradicted opinion of a treating 6 physician, an ALJ must state clear and convincing reasons that are supported by 7 substantial evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 8 When, as here, a treating physician s opinion is contradicted by another doctor, 9 the ALJ may not reject this opinion without providing specific and legitimate 10 reasons supported by substantial evidence in the record. This can be done by 11 setting out a detailed and thorough summary of the facts and conflicting clinical 12 evidence, stating his interpretation thereof, and making findings. Orn, 495 F.3d 13 at 632 (citations and quotation marks omitted). When there is conflicting medical 14 evidence, the Secretary must determine credibility and resolve the conflict. 15 Thomas v. Barnhart, 278 F.3d 947, 956-57 (9th Cir. 2002) (citation and quotation 16 marks omitted). 17 Dr. Hillis opined Melendez could lift ten pounds occasionally and less than 18 ten pounds frequently, she could stand and walk less than two hours, and sit ten 19 minutes. AR 18, 688. He opined that she has to change positions every ten 20 minutes and needs to lie down every thirty minutes. AR 18, 689. She can never 21 twist, stoop, crouch, climb stairs, climb ladders, kneel, crawl or balance. AR 18, 22 689. Her ability to reach, handle, finger, feel and push/pull is restricted. AR 18, 23 689. She must avoid all exposure to extreme cold, extreme heat, wetness, 24 humidity, noise, fumes, odors, dusts, gases, poor ventilation, and hazards. AR 25 690. She would be absent from work more than three times a month 26 ( everyday ). AR 18, 690. He concluded that she could not perform work on a 27 regular and continuing basis. AR 18, 690. 28 The ALJ gave Dr. Hillis opinions little to no weight. AR 18. He found the 16 1 objective medical evidence did not support Dr. Hillis opinions. Id. He cited the 2 May 2007 and June 2008 MRIs of the lumbar spine that showed minimal physical 3 abnormalities, treatment notes from Health First showing 5/5 muscle strength for 4 the lumbar spine and active range of motion for the thoracic and lumbosacral 5 spines, except for low back pain at less than ten degrees of extension of the 6 lumbar spine, normal x-rays of the hands and feet, treatment notes from Dr. 7 Ahluwalia indicating full range of motion of all joints with no synovitis or 8 tenderness, and negative rheumatoid factors. AR 18, 379-80, 431-32, 587, 679- 9 81, 687, 822. The ALJ noted that Dr. Hillis apparently relied primarily on 10 Melendez s subjective reports, which he properly discounted as discussed below. 11 See Morgan v. Comm r of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999) 12 (ALJ may properly reject treating physician s opinion based on subjective 13 complaints when ALJ properly discounts claimant s credibility). The ALJ noted 14 that Melendez failed to show up for a consultative examination. AR 18. The ALJ 15 further noted that Dr. Hillis opinions were inconsistent with the opinions of Dr. 16 Collier, a State Agency review physician, who opined that Melendez could 17 perform a range of light work. AR 18, 578-83. The ALJ found Dr. Collier s 18 opinions were consistent with the objective medical evidence. AR 18. Dr. Lorber 19 also disagreed with Dr. Hillis opinions. AR 70-71. A non-examining physician s 20 opinion may serve as substantial evidence when it is supported by other evidence 21 in the record and is consistent with it. Andrews v. Shalala, 53 F.3d 1035, 1041 22 (9th Cir. 1995); see also Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). 23 The ALJ s rejection of Dr. Hillis opinion is supported by substantial evidence. 24 See Orn, 495 F.3d at 632. 25 F. Use of Cane 26 Melendez contends her use of a cane to ambulate prevents her from 27 performing light work. She argues that she uses a cane daily and her treating 28 physician, Dr. Hillis, limited her to walking less than two hours in an eight hour 17 1 2 work day. AR 37, 688-90. The ALJ discussed Melendez s use of a cane. AR 20. He noted her 3 testimony that, for the past six months, she used a cane every time she left the 4 house. AR 20, 37, 43-44. He noted Melendez did not bring a cane to the 5 hearing. AR 20. Dr. Whitehead Gleaves did not mention a cane and observed 6 that Melendez s posture was upright and her gait was normal. AR 20, 555. 7 Melendez argues that objective medical evidence supports her allegation 8 that she requires a cane to ambulate. She contends that MRIs indicated 9 significant disc disease, 12 and medical records reflected her back pain, right leg 10 weakness, and unsteadiness on her feet. AR 370, 373, 380, 408, 821. The 11 Commissioner contends the objective evidence does not substantiate Melendez s 12 claims that she requires a cane for ambulation. The Commissioner noted records 13 from 2007 showing Melendez as ambulatory, with a steady gait and no mention 14 of a cane. AR 402, 408, 497. Although Melendez arrived at an examination in 15 2007 with a cane, she did not use a cane to enter the examination room, and she 16 could heel and toe walk with slight difficulty. AR 431-32. Melendez s medical 17 records from 2010 did not indicate Melendez used or needed a cane. AR 777-81, 18 801-06, 821-24. 19 It is the ALJ s province to interpret the medical evidence. When the 20 evidence is susceptible to more than one rational interpretation, a court must 21 defer to the decision of the Commissioner. Moncada, 60 F.3d at 523. The ALJ 22 12 23 24 25 26 27 28 The 2007 MRI of the lumbar spine reflected a 1 mm broad-based disc protrusion present at L5-S1 not impinging upon neural structures, a .5-1 mm bulge of annulus present at L4-L5 not impinging upon neural structures (indicative of disc edema), no acute fracture or unstable injury, desiccation of discs at L4 through S1 associated with Schmorl s node formation at inferior endplate of L5, and mild facet arthrosis throughout the lumbar range and facet effusions at L4-L5 and L5-S1 levels indicating posttraumatic inflammatory and reparative change. AR 380. The 2008 MRI of the lumbar spine reflected mild posterior central disc protrusions at L4-5 and L5-S1, which mildly impinge upon the thecal sac at both segments, mild disc desiccation at L4-5 and L5-S1 with multiple small annular tears in the anterior and posterior fibers of both of the intervertebral discs, and minimal degenerative spondylosis at L4-5 and L5-S1. AR 587. 18 1 did not err. 2 G. 3 Melendez contends the ALJ erred by not including limitations based on her 4 5 Hypothetical to VE mental illness in the hypotheticals presented to the VE. An ALJ may rely on testimony a VE gives in response to a hypothetical 6 that contains all of the limitations that the ALJ found credible and supported by 7 substantial evidence in the record. Bayliss, 427 F.3d at 1217-18. 8 9 10 11 Because this matter is being remanded for consideration of the opinions of Dr. Lorber and Dr. Lankford, and a potential sit/stand option, the ALJ is free to reconsider his hypothetical to the vocational expert in light of those opinions. However, contrary to Melendez s argument, the ALJ did not err in failing to 12 include side effects from medication in the hypothetical question to the VE. JS 13 27-28. The Ninth Circuit has recognized that medication side effects can 14 significantly impact a person s ability to work and should be considered in 15 disability determinations. Osenbrock v. Apfel, 240 F.3d 1157, 1169 (9th Cir. 16 2001). The ALJ properly considered Melendez s medication and alleged side 17 effects. AR 17, 20. He noted her testimony that she took ten to twelve pills and 18 slept four to six hours during the day. AR 17, 20, 40. By contrast, he noted that 19 medical records evidenced complaints of insomnia. AR 20, 467, 471, 475, 642, 20 681, 780. The ALJ was not required to include limitations that he did not find 21 supported by substantial evidence. 22 Melendez further contends the ALJ did not include the limitations identified 23 by Dr. Hillis. JS 29-30. Because the ALJ properly discounted Dr. Hillis opinions, 24 he was not required to include Dr. Hillis limitations in the hypothetical to the VE. 25 See Rollins, 261 F.3d at 858 ( Because the ALJ included all of the limitations that 26 he found to exist, and because his findings were supported by substantial 27 evidence, the ALJ did not err in omitting the other limitations that [the plaintiff] had 28 claimed, but had failed to prove. ). 19 1 H. Credibility 2 To determine whether a claimant s testimony regarding subjective pain or 3 symptoms is credible, an ALJ must engage in a two-step analysis. Lingenfelter 4 v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). At step one, the ALJ must 5 determine whether the claimant has presented objective medical evidence of an 6 underlying impairment which could reasonably be expected to produce the pain 7 or other symptoms alleged. Id. (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 8 (9th Cir. 1991) (en banc)). The ALJ found that Melendez s medically 9 determinable impairments could reasonably be expected to produce the alleged 10 11 symptoms. AR 17. Second, if the claimant meets this first test, and there is no evidence of 12 malingering, the ALJ can reject the claimant s testimony about the severity of her 13 symptoms only by offering specific, clear and convincing reasons for doing so. 14 Lingenfelter, 504 F.3d at 1036 (citation and quotation marks omitted). In making 15 a credibility determination, the ALJ must specifically identify what testimony is 16 credible and what testimony undermines the claimant s complaints[.] Greger v. 17 Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (citation omitted). Here, the ALJ 18 found that Melendez s statements concerning the intensity, persistence and 19 limiting effects of her symptoms were not credible to the extent they were 20 inconsistent with the RFC assessment. AR 17. 21 In weighing credibility, the ALJ may consider factors including: the nature, 22 location, onset, duration, frequency, radiation, and intensity of any pain; 23 precipitating and aggravating factors (e.g., movement, activity, environmental 24 conditions); type, dosage, effectiveness, and adverse side effects of any pain 25 medication; treatment, other than medication, for relief of pain; functional 26 restrictions; the claimant s daily activities; and ordinary techniques of credibility 27 evaluation. Bunnell, 947 F.2d at 346 (citing SSR 88-13) (quotation marks 28 omitted). The ALJ may consider (a) inconsistencies or discrepancies in a 20 1 claimant s statements; (b) inconsistencies between a claimant s statements and 2 activities; (c) exaggerated complaints; and (d) an unexplained failure to seek 3 treatment. Thomas, 278 F.3d at 958-59. 4 The ALJ discounted Melendez s credibility because of the lack of objective 5 medical evidence supporting the degree of limitations, exaggerated complaints, 6 and inconsistencies between Melendez s subjective allegations and her conduct. 7 AR 20-21. 8 Although lack of medical evidence cannot form the sole basis for 9 discounting pain testimony, it is a factor that the ALJ can consider in his credibility 10 analysis. Burch, 400 F.3d at 681. The ALJ noted that Melendez s MRIs showed 11 minimal abnormalities. AR 18, 379, 587. Treatment notes showed good muscle 12 strength and good range of motion in her joints, despite complaints of pain and 13 tenderness. AR 17-18, 431-32, 679-80. Melendez did not meet any criteria for 14 lupus during Dr. Sinha s examination on December 1, 2008. AR 18, 679. In 15 March and April 2010, Dr. Ahluwalia found no synovitis or tender joints and all 16 joints with full range of motion with no nodules. AR 18, 822-23. 17 The ALJ may consider exaggerated complaints in the credibility evaluation. 18 Thomas, 278 F.3d at 958-59. The ALJ noted that while Melendez testified that 19 she reported to her doctors that she sleeps at least four to six hours during the 20 day, the record contains no such complaints.13 AR 20, 37, 44-45. He noted that 21 while Melendez testified that she had been using a cane on a daily basis for the 22 past six months, she did not bring a cane to the hearing. AR 20, 44; see Orn, 23 495 F.3d at 639 (ALJ may consider his personal observations at the hearing as 24 part of the overall credibility evaluation). The ALJ noted that while Melendez 25 26 27 28 13 Melendez argues that she reported her insomnia and fatigue to her medical providers. JS 37; AR 557, 678-79, 681. While the record contains complaints about insomnia, sleep apnea, fatigue and a note that Melendez reported feeling like taking a nap all the time, there appears to be no complaints about sleeping during the day. AR 467, 471, 475, 642, 681, 780, 811-12. 21 1 testified that she used a cane when she visited a doctor, Dr. Whitehead Gleaves 2 noted no cane and upright posture and normal gait. AR 20, 44, 55. The ALJ 3 noted a medical record from Methodist Health System indicating that when 4 Melendez came to the Emergency Room complaining of back pain, she was 5 observed walking in the hallway without any problems, but she began to cry when 6 the healthcare provider entered the room. AR 17, 426. 7 An ALJ may properly consider inconsistencies between testimony and 8 conduct when weighing a claimant s credibility. Thomas, 278 F.3d at 958-59. 9 The ALJ noted Melendez s testimony that she was unable to sit for more than ten 10 minutes before she must either stand or lie down. AR 21, 36. The ALJ observed 11 that during the hearing, she sat twice as long without standing or lying down, 12 despite being told that she could change positions. AR 21, 56; see also AR 555 13 (noting Melendez stood up to stretch after 25 minutes of sitting).14 AR 21, 41. 14 The ALJ s credibility finding is supported by substantial evidence. If the 15 ALJ s credibility finding is supported by substantial evidence in the record, we 16 may not engage in second-guessing. Thomas, 278 F.3d at 959 (citing Morgan, 17 169 F.3d at 600). 18 IV. 19 ORDER 20 IT IS HEREBY ORDERED that the decision of the Commissioner is 21 22 23 24 25 26 27 28 14 Melendez s reliance on the unpublished case of Poppa v. Comm r of Soc. Sec. Admin., 202 F.3d 278, 1999 WL 1048664 (9th Cir. 1999), is misplaced. Melendez argues that as in Poppa, her subjective testimony should be fully credited[] because of her medical diagnoses. JS 31. In Poppa, the Ninth Circuit found that the ALJ did not provide clear and convincing reasons to reject the subjective reports of pain and fatigue of the claimant, who suffered from lupus, because he found the claimant s pain and fatigue reports to be inconsistent with her annual trips to Norway to visit family. Poppa, 1999 WL 1048664, at *3. The court reasoned that [v]isits to family are not inconsistent with the need to rest for extended periods, nor with debilitating pain. Id. Here, the ALJ did not discount Melendez s credibility based on inconsistencies with international travel. He discounted Melendez s credibility based on a variety of clear and convincing reasons. 22 1 reversed and remanded for consideration of the opinions of Dr. Lorber and Dr. 2 Lankford, and a possible sit/stand option. 3 4 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. 5 6 7 DATED: March 25, 2013 ALICIA G. ROSENBERG United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23

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