Hernandez v. Astrue, No. 4:2011cv02692 - Document 21 (N.D. Cal. 2012)
Court Description: ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT. Signed by Judge Claudia Wilken on 9/26/2012. (ndr, COURT STAFF) (Filed on 9/26/2012)
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Hernandez v. Astrue Doc. 21 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 ANITA HERNANDEZ, 5 6 7 8 9 No. C 11-2692 CW Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ________________________________/ ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S CROSSMOTION FOR SUMMARY JUDGMENT United States District Court For the Northern District of California 10 11 Plaintiff Anita Hernandez, now deceased and substituted by 12 Yvonne A. Poe, moves for summary judgment or, in the alternative, 13 for remand in this social security appeal on the grounds that the 14 administrative law judge (ALJ) failed to develop the record in 15 regard to her physical and mental impairments, failed to provide 16 adequate reasons for rejecting her testimony regarding the 17 severity of her symptoms, and failed to follow the regulations 18 governing evaluation of mental impairments. 19 Astrue in his capacity as Commissioner of the Social Security 20 Administration (SSA) opposes Plaintiff's motion and cross-moves 21 for summary judgment. 22 the papers filed by the parties and the relevant legal authority, 23 the Court denies Plaintiff's motion for summary judgment or for 24 remand, and grants the Commissioner's cross-motion for summary 25 judgment. 26 27 28 Defendant Michael J. Plaintiff filed a reply. Having considered BACKGROUND In August 2008, Plaintiff filed applications for disability benefits and supplemental security income pursuant to Titles II Dockets.Justia.com 1 and XVI of the Social Security Act, alleging that she became 2 disabled on May 10, 2001, because of carpal tunnel syndrome and 3 arthritis. 4 November 4, 2008, upon reconsideration on February 4, 2009, and, 5 after a hearing held on March 22, 2010, by an ALJ in a decision 6 dated May 4, 2010. 7 decision of the Commissioner when the Appeals Council denied 8 review. AR 249. The applications were denied initially on The ALJ's denial of benefits became the final Plaintiff was born on February 22, 1962. 10 United States District Court For the Northern District of California 9 ALJ decision, Plaintiff was forty-eight years old. 11 complete high school but graduated from an administrative medical 12 assistant college program. 13 relevant work as a housekeeper, retail sales clerk and assembler. 14 AR 59, 69. At the time of the She did not Plaintiff had past In her application for disability benefits and supplemental 15 security income, Plaintiff reported that carpal tunnel syndrome 16 and arthritis interfered with her ability to work as of May 10, 17 2001. 18 compensation arising from repetitive stress injury she sustained 19 in the course of her employment as an assembler. 20 Plaintiff settled her workers’ compensation claim by compromise 21 and release dated November 2, 2005. 22 AR 249. Plaintiff also filed a claim for workers’ AR 320. AR 314-19. On May 10, 2001, Plaintiff was treated by Dr. Zaharoff who 23 noted that Plaintiff had been in a motor vehicle accident at the 24 age of two in which she hit the dashboard and broke her legs and 25 one arm and had had back problems ever since. 26 Dr. Zaharoff determined that Plaintiff required elbow supports and 27 that she could not reach above the shoulders and could perform 28 repetitive hand motions “frequently,” which is less restrictive 2 AR 449-50, 523-24. 1 than the categories of “occasionally” or “not at all,” but is more 2 restrictive than “no restrictions.” 3 noted that Plaintiff should not perform mandrel work or forceful 4 pinching or grasping. 5 again on May 23, 2001, and continued to limit Plaintiff to no 6 reaching above the shoulders, frequent repetitive hand motions, no 7 mandrel work and no forceful grasping. 8 diagnosed Plaintiff with carpal tunnel syndrome and cervical 9 dysfunction, also referred to as Double Crush Syndrome. United States District Court For the Northern District of California 10 AR 522-24. AR 522. Dr. Zaharoff also Dr. Zaharoff saw Plaintiff AR 518. Dr. Zaharoff AR 383, 442, 516. 11 On June 7, 2001, Dr. Vidaurri examined Plaintiff and 12 authorized moderate duty through June 29, 2001, but restricted use 13 of the left hand to perform occasional repetitive hand motions and 14 no repetitive firm grasping. 15 Vidaurri also diagnosed Plaintiff with CTS/cervical dysfunction 16 (Double Crush Syndrome) and noted that the carpal tunnel symptoms 17 were “very atypical.” 18 grip strength test showing Right: 45, 40, 35 and Left: 20, 15, 19 35.1 20 nerve conduction study revealed bilateral CTS and prohibited 21 Plaintiff from performing mandrel work, but he authorized work for 22 eight hours per day and forty hours per week. AR 447, 514. AR 446. AR 514-15. On June 8, 2001, Dr. Dr. Vidaurri conducted a Jamar On July 2, 2001, Dr. Zaharoff noted that a AR 440. Dr. 23 24 25 26 27 28 1 These test results appear to refer to readings taken from a Jamar® dynamometer which measures hand grip strength. See Amaral, et al., Comparison of Three Hand Dynamometers in Relation to the Accuracy and Precision of the Measurements (June 2012), http://www.ncbi.nlm.nih.gov/pubmed/22801514. Plaintiff does not point to any evidence in the record attributing particular significance to her Jamar test results. 3 1 Zaharoff also noted that Plaintiff missed her scheduled physical 2 therapy on June 21, 2001, and was unable to cancel her 3 appointment. AR 439. 4 On August 24, 2001, Dr. Coomber examined Plaintiff to prepare 5 disability paperwork and noted a trace of popping as she moved her 6 left shoulder. 7 measure Plaintiff’s range of motion, he observed that it was not 8 grossly, severely limited. 9 AR 357-59. Although Dr. Coomber did not formally AR 358. On October 18, 2001, Dr. Gunderson conducted an orthopaedic United States District Court For the Northern District of California 10 evaluation of Plaintiff, noting that the Jamar grip strength test 11 showed Right: 50, 50, 60 and Left: 40, 35, 40. 12 Gunderson reviewed Plaintiff’s medical records and prepared a 13 report to address the issue of causation for the workers’ 14 compensation claims examiner. 15 recommended that bilateral electrodiagnostic studies be carried 16 out to rule out carpal tunnel syndrome, after which he would 17 submit a supplemental report. AR 435-38. AR 437. Dr. Dr. Gunderson AR 437. 18 On January 9, 2002, Dr. Kivett examined Plaintiff and noted 19 that a grip strength test showed Right: 15, 16, 22 and Left: 26, 20 31, 26. 21 Plaintiff’s right volar forearm and two scars on the dorsal hand, 22 a four-centimeter scar on the right dorsal mid-forearm, and a one- 23 centimeter burn on the right dorsal first web space, “reported as 24 asensate.” 25 of bilateral carpal tunnel syndrome with positive physical 26 findings without improvement since being off work; bilateral AR 380. He also noted two two-centimeter scars on AR 380. He diagnosed Plaintiff with dynamic symptoms 27 28 4 1 Wartenberg’s2 by history; and repetitive stress injury, bilateral 2 upper extremities. 3 was subjected to repetitive stress injury for about three years 4 which caused the bilateral carpal tunnel syndrome. 5 Kivett noted that, although Plaintiff’s obesity may have been a 6 mitigating factor, the fact that her symptoms had not improved 7 since she stopped working and the evidence of a burn in asensate 8 tissue supported a conclusion of profound changes. 9 AR 381. Dr. Kivett concluded that Plaintiff AR 381. Dr. AR 381. On June 27, 2002, Dr. Satow conducted an upper extremity United States District Court For the Northern District of California 10 electrodiagnostic study on Plaintiff which revealed evidence of 11 bilateral carpal tunnel syndrome; he categorized the right side as 12 severe and the left side as moderate to moderately severe. 13 392. 14 AR On August 8, 2002, Dr. Kivett opined that Plaintiff’s pain, 15 numbness and tingling prevented her from returning to her regular 16 and customary work until September 15, 2002. 17 emergency department report indicates that on September 12, 2002, 18 Plaintiff was treated for a possibly infected abdominal surgical 19 wound following a cholecystectomy (gallbladder removal) about 20 three weeks earlier. 21 AR 410. An AR 341. On October 31, 2002, Dr. Newton conducted further 22 electrophysiologic studies of Plaintiff’s upper extremities and 23 found the results compatible with bilateral carpal tunnel 24 syndrome. 25 Gunderson prepared a supplemental report recommending that AR 593. Based on the results of these studies, Dr. 26 2 27 28 Plaintiff represents that Wartenberg’s syndrome is entrapment of the sensory branch of the radial nerve described by Wartenberg in 1932. Pl.’s Mot. at 5 n.2. 5 1 Plaintiff see a surgeon who specializes in carpal tunnel syndrome. 2 AR 591. 3 explained that Plaintiff “needs a right carpal tunnel release on 4 the right and should be permanent and stationary approximately 5 three months afterward. 6 also needs surgery and again a three month period afterward would 7 make her permanent and stationary.” 8 indicated that until Plaintiff had the surgery, he would keep her 9 in night splints. In a November 25, 2002, report, Dr. Gunderson further It may then be decided that the left side AR 588. AR 588. Dr. Gunderson Dr. Gunderson further opined that, United States District Court For the Northern District of California 10 since January 9, 2002, Plaintiff “could have been on modified duty 11 not being engaged in any repetitious hand work.” 12 AR 588. On January 15, 2003, Plaintiff received authorization for 13 carpal tunnel release surgery. 14 indicate that Plaintiff was scheduled for the surgery on February 15 14, 2003, but the operation was cancelled because Plaintiff did 16 not show up for her scheduled pre-operative visit. 17 Although Plaintiff could not recall why she missed the visit and 18 did not have the surgery, she clarified at the hearing that it was 19 not due to her incarceration which occurred later in 2003. 20 40. AR 384. Dr. Kivett’s records AR 394. AR 39- 21 Plaintiff’s prison health records, submitted to the Appeals 22 Council after the ALJ’s decision, indicate that on June 2, 2003, 23 she was excluded from the developmental disability program on the 24 ground that she received a passing score on a cognitive test. 25 630. 26 indicate that from October 6, 2003, to May 21, 2004, Plaintiff 27 reported symptoms of feeling depressed and difficulty sleeping. 28 AR 625-29. AR The prison’s mental health interdisciplinary progress notes A progress note dated March 9, 2005, indicates that 6 1 Plaintiff failed to arrive for two psychoeducational group 2 sessions and was referred to her case manager. 3 AR 624. On May 11, 2005, Dr. Gordon saw Plaintiff for an orthopaedic 4 hand surgery evaluation and noted that Plaintiff had not had any 5 treatment since February 2003. 6 negative results for Tinel’s sign and Phalen’s sign, both of which 7 are tests for carpal tunnel syndrome. 8 readings from Plaintiff’s grip strength test showed Right: 40, 35, 9 25 and Left: 30, 25, 25. AR 596. AR 603. Dr. Gordon further noted AR 597. Dynamometer Dr. Gordon opined that, based United States District Court For the Northern District of California 10 on the overall clinical presentation, Plaintiff did not have 11 severe ongoing carpal tunnel syndrome necessitating surgery, but 12 noted, “Considering that she has had two positive 13 electrodiagnostic studies, if there is indeed a deterioration of 14 the clinical condition, an award for future medical treatment to 15 have a carpal tunnel release done in the future would be 16 reasonable.” 17 conservative supportive measures, anti-inflammatories, analgesics, 18 splinting, advice regarding hand use, a course of therapy up to 19 twelve visits a year over the next two years, and other supportive 20 conservative care. 21 activities that require lifting more than ten pounds on a 22 repetitive basis or fifteen pounds intermittently. 23 allowed Plaintiff to do repetitive gripping or manipulative 24 activities for no more than half an hour at a time, up to three 25 hours interspersed throughout an eight-hour work shift. AR 601. Dr. Gordon suggested further treatment with AR 601. Dr. Gordon restricted Plaintiff from AR 601. He AR 601. 26 On October 26, 2006, Dr. Stanton examined Plaintiff and found 27 numbness down the arm and into wrist, and stiff joints, especially 28 at shoulder and elbow, and prescribed wrist braces and ibuprofen. 7 1 AR 354-55. 2 indicated that Plaintiff had stiffness at the shoulders and 3 fingers, that wrist splints help with sleep, and that Plaintiff’s 4 right wrist was numb, noting transient paresthesias3 in all 5 fingers. 6 to typing forty words per minute, with a notation that she was 7 under Dr. Langley’s care. 8 9 On November 9, 2006, Dr. Berg examined Plaintiff and AR 352-53. On July 9, 2007, Dr. Riley limited Plaintiff AR 349. Plaintiff filed an application for disability benefits on August 12, 2008. AR 234-37. On September 2, 2008, Dr. Berg United States District Court For the Northern District of California 10 treated Plaintiff at Sonoma County Indian Health for carpal tunnel 11 syndrome, pain in wrists, and right shoulder pain. 12 Plaintiff requested pain medication stronger than Naprosyn and was 13 prescribed Celebrex. 14 AR 344. AR 344. On October 28, 2008, Dr. Fieser examined Plaintiff for an 15 orthopedic evaluation. 16 Tinel’s and Phalen’s signs bilaterally and found that flexion and 17 extension of the shoulders, elbows and wrists were all 5/5 and 18 symmetric, as was Plaintiff’s grip strength. 19 noted with respect to home tasks that she could stand at the sink 20 and wash dishes, load the washer and dryer, vacuum, perform light 21 dusting, lift a gallon of milk and lift and carry up to five 22 pounds. 23 bilateral hand and wrist pain with a history of possible carpal 24 tunnel syndrome with no objective evidence on examination. 25 364. AR 361. AR 361. Dr. Fieser reported negative AR 363. Dr. Fieser Dr. Fieser noted Plaintiff’s history of chronic AR Dr. Fieser’s functional assessment opined that Plaintiff 26 3 27 28 Paresthesia is defined as a spontaneous abnormal, usually nonpainful, sensation such as burning or pricking. See Stedman’s Medical Dictionary, 28th ed. (Lippincott Williams & Wilkins 2006). 8 1 could stand and walk, or sit, in an eight-hour workday without 2 limitations and with normal breaks, had no restrictions on the 3 amount of weight that Plaintiff could lift and carry, and had no 4 postural limitations or specific manipulative limitations. 5 364. 6 AR On October 16, 2008, Dr. Berg treated Plaintiff, who reported 7 that she had a persistent cough, and prescribed albuterol and 8 doxycycline. 9 abnormal chest x-ray taken by Dr. Munroe showing a five-centimeter AR 458. On October 17, 2008, Dr. Coomber noted an United States District Court For the Northern District of California 10 lingular mass. 11 Berg who prescribed her additional medications. 12 On November 12, 2008, Dr. Kruusmagi treated Plaintiff for 13 management of pneumonia, which Plaintiff had had for over two 14 months, and tested her for tuberculosis, for which she was 15 negative. 16 AR 462. On October 21, 2008, Plaintiff saw Dr. AR 464. AR 469, 476, 604. On December 5, 2008, Plaintiff was seen by Dr. Steele who 17 noted that she had been sick due to respiratory infection six 18 times in the last year. 19 of the chest from earlier that month showed a persistent lung 20 abscess and started Plaintiff on a course of Augmentin 21 antibiotics. AR 474. Dr. Steele noted that a CT scan AR 475. 22 On December 30, 2008, in support of her application for 23 disability benefits, Plaintiff stated that her sleep was affected 24 but was not sure which of her many different medications was 25 affecting her sleep. 26 was taking prozac for depression, amoxicillin for her lungs and 27 naprasen for pain, all of which caused upset stomach. AR 281. Plaintiff also indicated that she 28 9 AR 292. 1 In her application for disability benefits, Plaintiff stated 2 that, while she was in school, she had attention deficit disorder. 3 AR 285. 4 ADD, Plaintiff indicated that her friend first suggested that she 5 had ADD because she interrupts people. 6 counsel clarified that Plaintiff wasn’t sure if she had an ADD 7 issue or learning disorder and asked the ALJ to order a 8 consultative examination (CE) by a psychologist to evaluate 9 Plaintiff’s learning disorder. When asked at the March 22, 2010, hearing about having AR 68. AR 70-71, 78. Plaintiff's The ALJ declined to United States District Court For the Northern District of California 10 order a CE, but stated that he would hold the record open for 11 twenty days to allow Plaintiff to submit recent treatment notes or 12 pharmacy notes. 13 AR 78-79. Plaintiff submitted evidence to the ALJ on March 19, 2010. 14 AR 328-31. 15 which Plaintiff was represented by a non-attorney representative. 16 Plaintiff testified at the hearing, as did her friend, Alex 17 Andrada. AR 13. A vocational expert also appeared at the 18 hearing. AR 10. The ALJ issued a decision dated May 4, 2010, 19 denying Plaintiff’s application for disability benefits and 20 supplemental security income. 21 The ALJ conducted a hearing on March 22, 2010, at AR 7. Plaintiff appealed the ALJ’s denial. AR 184. On October 20, 22 2010, Plaintiff submitted new psychological records from her 23 treating psychologist, Dr. Steinberg, and her prison medical 24 records dated June 2, 2003, to March 9, 2005, which the Appeals 25 Council made part of the record. 26 sessions with Plaintiff on July 20, 2010, August 3, 2010, August 27 17, 2010, and September 16, 2010, Dr. Steinberg opined that 28 Plaintiff had major depression, as substantiated by the symptoms AR 5, 615. 10 Based on treatment 1 of dysphoric mood and loss of interest in almost all usual 2 activities, sleep disturbance, psychomotor agitation, loss of 3 energy and fatigue, feelings of worthlessness, impaired 4 concentration and indecisiveness, and recurring thoughts of death. 5 AR 617-21. 6 On March 31, 2011, the Appeals Council denied Plaintiff’s 7 request for review of the ALJ’s decision. 8 filed this action for judicial review on June 3, 2011. 9 parties’ cross-motions for summary judgment are submitted on the United States District Court For the Northern District of California 10 AR 1-3. Plaintiff The papers. 11 After Plaintiff’s reply brief was filed, her attorney 12 notified the Court that Plaintiff passed away on March 3, 2012. 13 Pursuant to the motion for substitution by Yvonne A. Poe, 14 Plaintiff’s daughter and the executor of Plaintiff’s estate, the 15 Court entered an order substituting Ms. Poe for Plaintiff in this 16 action on June 4, 2012. 17 18 LEGAL STANDARD A court may set aside the Commissioner’s denial of disability 19 benefits only when his findings are based on legal error or are 20 not supported by substantial evidence in the record as a whole. 21 42 U.S.C. § 405(g); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th 22 Cir. 1999). 23 Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1054-56 (9th Cir. 24 2006) (applying harmless error standard of review in the social 25 security context). 26 a mere scintilla but less than a preponderance.” 27 F.3d at 1098. The ALJ’s decision is reviewed for harmless error. Substantial evidence is defined as “more than Tackett, 180 The court must consider the entire record, weighing 28 11 1 both the evidence that supports and that which contradicts the 2 Commissioner’s conclusion. Id. 3 Even when a decision is supported by substantial evidence in 4 the record, it “should be set aside if the proper legal standards 5 were not applied in weighing the evidence and making the 6 decision.” 7 (citing Flake v. Gardner, 399 F.2d 532, 540 (9th Cir. 1968)). 8 Under SSA regulations, the Commissioner must apply a five-step 9 sequential process to evaluate a disability benefits claim.4 Benitez v. Califano, 573 F.2d 653, 655 (9th Cir. 1978) The United States District Court For the Northern District of California 10 claimant bears the burden of proof in steps one through four. 11 Bustamante v. Massanari, 262 F.3d 949, 953-954 (9th Cir. 2001). 12 The burden shifts to the Commissioner in step five. Id. at 954. 13 ALJ'S DECISION 14 At step one of the sequential process, the ALJ found that 15 Plaintiff had not worked since the alleged onset date of May 10, 16 2001. 17 severe impairments of bilateral carpal tunnel syndrome and AR 12. At step two, the ALJ found that Plaintiff had 18 19 20 4 The five steps of the inquiry are 1. 21 22 2. 23 3. 24 25 26 27 28 4. 5. Is the claimant presently working in a substantially gainful activity? If so, then the claimant is not disabled within the meaning of the Social Security Act. If not, proceed to step two. See 20 C.F.R. § 416.920(b). Is the claimant's impairment severe? If so, proceed to step three. If not, then the claimant is not disabled. See 20 C.F.R. § 416.920(c). Does the impairment “meet or equal” one of a list of specific impairments described in 20 C.F.R. Part 220, Subpart P, Appendix 1? If so, then the claimant is disabled. If not, proceed to step four. See 20 C.F.R. § 416.920(d). Is the claimant able to do any work that he or she has done in the past? If so, then the claimant is not disabled. If not, proceed to step five. See 20 C.F.R. § 416.920(e). Is the claimant able to do any other work? If so, then the claimant is not disabled. If not, then the claimant is disabled. See 20 C.F.R. § 416.920(f). 12 1 possible pneumonia. 2 Plaintiff's impairments or combination of impairments did not meet 3 or medically equal one of the listed impairments described in the 4 regulations. AR 12. At step three, the ALJ found that AR 12-13. 5 At step four, the ALJ determined Plaintiff’s residual 6 functional capacity (RFC) based on the medical evidence and the 7 intensity, persistence and limiting effects of Plaintiff's 8 symptoms. 9 physical RFC to perform light work with the following AR at 13. The ALJ found that Plaintiff had the United States District Court For the Northern District of California 10 restrictions: lifting/carrying ten pounds frequently and twenty 11 pounds occasionally, frequently using the upper extremities for 12 fine and gross manipulation, no reaching above shoulder level, 13 occasional stooping, bending, climbing, balancing, crouching, 14 kneeling and crawling, and avoiding work around dust, fumes, 15 odors, gases and pulmonary irritants. 16 Plaintiff’s RFC, the ALJ accepted that Plaintiff had carpal tunnel 17 syndrome discomfort related to her past assembly work and had had 18 little treatment in the past few years. 19 Plaintiff testified at the hearing that her condition became worse 20 and that she needed medication, that she had trouble with elbows, 21 shoulders and neck, that she has not had surgery, that she has 22 arthritis in her knees and ankles, and that she had pneumonia 23 twice in one year. 24 hearing that she does housework, cooking and laundry. 25 50. 26 examiner, Dr. Fieser, that she performed independent activities of 27 daily living, such as showering, bathing, upper and lower 28 extremity dress, toileting, feeding and shopping, and household AR 13. AR 14. In determining The ALJ noted that Plaintiff also testified at the AR 13, 49- The ALJ noted that Plaintiff had reported to the consultative 13 1 activities such as standing at the sink and washing dishes, 2 loading the washer and dryer, vacuuming, and light dusting. 3 14, 361. 4 intensity, persistence and limiting effects of her symptoms were 5 not credible to the extent that they were inconsistent with the 6 RFC assessment. AR The ALJ found that Plaintiff’s statements about the AR 14. 7 The ALJ also considered opinion evidence and found that 8 Plaintiff had a history of carpal tunnel syndrome as demonstrated 9 by nerve conduction testing. AR 14. The ALJ noted that on June United States District Court For the Northern District of California 10 11, 2001, shortly after Plaintiff stopped working, Dr. Vidaurri 11 found Plaintiff’s symptoms of carpal tunnel syndrome to be “very 12 atypical.” 13 care with bracing, ice, physical therapy and possible 14 corticosteroid injections. 15 Plaintiff did not attend subsequent therapy in 2002 and that she 16 declined surgery that was planned in January 2003 and scheduled 17 for February 14, 2003. 18 Plaintiff resumed treatment in May 2005 with Dr. Gordon who 19 stated, “Objectively, she has a decrease in grip strength. 20 would consider her normal grip strength to be 50 pounds on the 21 right side and 40 on the left side.” 22 found that Plaintiff “has lost 35 percent of her capacity to do 23 lifting or push/pull activities and 40 percent of her capacity to 24 do repetitive gripping or repetitive manipulative activities using 25 right or left hands.” 26 AR 14, 443. Dr. Vidaurri recommended conservative AR 14, 443. AR 14, 384. The ALJ noted that The ALJ further noted that AR 14, 601. I Dr. Gordon also AR 601. The ALJ summarized Dr. Gordon’s examination as finding some 27 decrease in grip, but negative results for Tinel’s and Phalen’s 28 and full range of motion of the fingers. 14 AR 14, 597-98, 600-01. The ALJ noted that Dr. Gordon advised against surgery, citing his 2 conclusion that “she does not have severe ongoing carpal tunnel 3 syndrome necessitating surgery.” 4 Dr. Gordon’s recommendation that Plaintiff be restricted to light 5 exertion, lifting no more than fifteen pounds intermittently and 6 avoiding repetitive gripping. 7 activities that require lifting more than 10 pounds on a 8 repetitive basis or 15 pounds intermittently. 9 repetitive gripping or manipulative activities up to a total of 10 United States District Court For the Northern District of California 1 approximately three hours interspersed throughout an eight-hour 11 work shift.”). 12 AR 14, 601. The ALJ also noted AR 14, 601 (“Her restrictions are She can do The ALJ noted that Plaintiff was seen by Dr. Fieser, the 13 consultative examiner, on October 18, 2008, more than three years 14 after being seen by Dr. Gordon. 15 significant tenderness to palpation over Plaintiff’s right wrist, 16 and mild tenderness to palpation over the left carpal tunnel 17 region producing complaints of vague, nonspecific pain. 18 Dr. Fieser found negative Tinel’s signs and Phalen’s signs in both 19 hands. 20 determined that her shoulder flexion and extension, elbow flexion 21 and extension, wrist extension and extension, and grip strength 22 were all 5/5 and symmetric, but did not indicate how motor 23 strength was measured. 24 findings as showing that Plaintiff had grip strength of 5/5, 25 negative Phalen’s and Tinel’s, and an otherwise normal objective 26 examination. AR 363. AR 14. Dr. Fieser found no AR 363. Dr. Fieser tested Plaintiff’s motor strength and AR 363. The ALJ summarized Dr. Fieser’s AR 14, 364. 27 The ALJ noted that Dr. Fieser assigned no residual functional 28 capacity limits, and that he had conducted Plaintiff’s most recent 15 1 examination. 2 the earlier assessments of Drs. Gordon and Vidaurri or find that 3 greater manipulative limitations were warranted by the objective 4 findings in the record. 5 lift and carry ten pounds frequently and twenty pounds 6 occasionally, could frequently use the upper extremities for fine 7 and gross manipulation, could not reach above shoulder level, and 8 could occasionally stoop, bend, climb, balance, crouch, kneel and 9 crawl. AR 14, 364. AR 14. The ALJ did not afford great weight to The ALJ determined that Plaintiff could Due to Plaintiff’s possible difficulty with United States District Court For the Northern District of California 10 breathing after being admitted for pneumonia in October 2008, the 11 ALJ also determined that she should avoid work around dust, fumes, 12 odors, gases and pulmonary irritants. AR 14. 13 Having considered that Plaintiff had past relevant work as a 14 housekeeper, retail sales clerk and assembler, the ALJ determined 15 that those jobs required a higher level of exertion than allowed 16 by Plaintiff’s RFC and concluded that Plaintiff was unable to 17 perform past relevant work. AR 15. 18 At the hearing, a vocational expert (VE) testified that an 19 individual with Plaintiff’s age, education, work experience and 20 RFC could perform the requirements of representative occupations 21 such as product assembler and office helper, and that there are 22 6,000 and 2,500 such jobs, respectively, in the Bay Area. 23 91, 97. 24 based on the initial set of limitations presented to her, to 25 determine that Plaintiff was capable of making a successful 26 adjustment to other work that exists in significant numbers in the 27 national economy. 28 limitations presented in hypothetical questions that adopted Dr. AR 15, At step five, the ALJ relied on the testimony of the VE, AR 15-16. The ALJ rejected additional 16 1 Gordon’s more restrictive May 11, 2005, opinion or that assumed 2 that Plaintiff required frequent breaks. 3 the ALJ found that Plaintiff was not disabled under the Act. 4 16. 5 6 7 AR 16. On this basis, AR DISCUSSION I. The ALJ’s Decision Is Supported by Substantial Evidence Plaintiff contends that the ALJ failed to call a medical 8 expert or make findings of limitations on Plaintiff’s ability to 9 manipulate her hands or on her grip strength to support his United States District Court For the Northern District of California 10 residual functional capacity determination. 11 The ALJ relied on Dr. Fieser’s consultative examination, which was 12 the most recent, in which he observed 5/5 grip strength, 13 suggesting that Plaintiff had no decreased grip strength although 14 Dr. Fieser did not indicate how the grip strength was measured. 15 Dr. Fieser also observed negative Phalen’s and Tinel’s, with an 16 otherwise normal objective examination, and assigned no residual 17 functional capacity limits. 18 findings that he did not afford “great weight to the earlier 19 assessments of Drs. Gordon and Vidaurri,” which had been made in 20 2005 and 2001, respectively. 21 AR 14. Pl.’s Mot. at 11. The ALJ further states in his Plaintiff contends that the ALJ improperly rejected the 22 opinions of her treating physicians, Drs. Gordon, Satow and 23 Vidaurri, who documented Plaintiff’s symptoms of carpal tunnel 24 syndrome. 25 physician's opinion because “he is employed to cure and has a 26 greater opportunity to know and observe the patient as an 27 individual.” 28 1989); Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987). Generally, greater weight is given to a treating Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 17 1 Although the treating physician’s opinion is not necessarily 2 conclusive as to either a physical condition or the ultimate issue 3 of disability, an ALJ must provide “specific and legitimate 4 reasons for rejecting the opinion of the treating physician.” 5 Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). 6 meet this burden by setting out a detailed and thorough summary of 7 the facts and conflicting clinical evidence, stating an 8 interpretation thereof, and making findings. 9 at 751. United States District Court For the Northern District of California 10 The ALJ can Magallanes, 881 F.2d Here, the ALJ accepted the diagnosis of carpal tunnel 11 syndrome discomfort. 12 Plaintiff’s limited treatment, as evidenced in her medical 13 records, and the more recent objective findings of the 14 consultative examiner did not warrant the greater manipulative 15 limitations on repetitive gripping recommended by Dr. Gordon or 16 Dr. Vidaurri several years earlier. 17 Gordon’s assessment, dated May 11, 2005, restricted Plaintiff from 18 activities that required lifting more than ten pounds on a 19 repetitive basis or fifteen pounds intermittently and allowed 20 repetitive gripping or manipulative activities for no more than 21 half an hour at a time, up to three hours interspersed throughout 22 an eight-hour work shift. 23 more recent examination of Plaintiff revealed a 5/5 grip strength, 24 although Dr. Fieser did not appear to use the same dynamometer 25 test that Dr. Gordon used three years earlier, and negative 26 Phalen’s and Tinel’s, which were consistent with Dr. Gordon’s 27 negative Phalen’s and Tinel’s test results in May 2005. 28 examining Plaintiff in October 2008, Dr. Fieser noted Plaintiff’s AR 14. However, the ALJ determined that AR 601. 18 AR 14. In particular, Dr. As the ALJ noted, Dr. Fieser’s When 1 history of chronic bilateral hand and wrist pain with a history of 2 possible carpal tunnel syndrome, but found “no objective evidence 3 on examination today.” 4 accepted the opinion of the consultative examiner that Plaintiff 5 did not require manipulative limitations on her residual 6 functional capacity. 7 AR 364. Based on this evidence, the ALJ The ALJ further found that Plaintiff’s subjective statements 8 about the intensity, persistence and limiting effects of the 9 symptoms of her medically determinable impairments were not fully United States District Court For the Northern District of California 10 credible. 11 subjective symptom testimony, an ALJ must perform two stages of 12 analysis: the Cotton analysis and an analysis of the credibility 13 of the claimant's testimony regarding the severity of her 14 symptoms.” 15 (citing Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986)). 16 Cotton test is a threshold test which requires a claimant who 17 alleges disability based on subjective symptoms to produce 18 objective medical evidence of an underlying impairment which could 19 reasonably be expected to produce the pain or other symptoms 20 alleged. 21 underlying impairment, the ALJ may only reject the claimant’s 22 testimony if there is evidence that the claimant is malingering or 23 by offering specific, clear and convincing reasons for doing so. 24 Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); Soc. Sec. 25 Ruling 96-7p (July 2, 1996). 26 credibility regarding the severity of his or her symptoms, the ALJ 27 may consider “(1) ordinary techniques of credibility evaluation, 28 such as the claimant's reputation for lying, prior inconsistent AR 12. “In deciding whether to accept a claimant's Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) Id. The Once the claimant produces medical evidence of an To determine a claimant's 19 1 statements concerning the symptoms, and other testimony by the 2 claimant that appears less than candid; (2) unexplained or 3 inadequately explained failure to seek treatment or to follow a 4 prescribed course of treatment; and (3) the claimant's daily 5 activities.” 6 Smolen, 80 F.3d at 1284. Plaintiff contends that the ALJ failed to provide clear and 7 convincing reasons to reject her testimony, Mot. at 14-15, but the 8 ALJ’s decision articulated several reasons for discrediting her 9 subjective testimony. Here, the ALJ noted that Plaintiff had United States District Court For the Northern District of California 10 little treatment for her carpal tunnel syndrome in the past few 11 years and had gaps in her recent treatment by her regular 12 physician. 13 tunnel surgery, and her medical record shows conservative 14 treatment, such as wrist splints worn at night and use of non- 15 steroidal anti-inflammatory drugs, naprosen and Celebrex. 16 facts undermine her claims of disabling pain. 17 Astrue, 533 F.3d 1035, 1039-40 (9th Cir. 2008) (favorable response 18 to conservative treatment including physical therapy and the use 19 of anti-inflammatory medication undermines reports of disabling 20 pain). 21 AR 14. The ALJ noted that Plaintiff never had carpal These See Tommasetti v. The ALJ may also consider daily living activities in the 22 credibility analysis. 23 that Plaintiff could take care of her own personal daily living 24 needs, cook, clean, do laundry, shop, and take care of her 25 grandson. 26 dated December 30, 2008, that she was the sole caregiver for her 27 mentally disabled son, making sure he is clothed and fed. 28 The ALJ also noted other activities, such as working part-time in AR 13-14. Burch, 400 F.3d at 680-81. The ALJ found Plaintiff also stated in her function report 20 AR 281. 1 2007 and 2008 and obtaining a degree from Empire College in 2007, 2 though admittedly with help from her daughter. 3 74, 254. 4 with Plaintiff’s claims that she could not perform any work 5 activity. 6 AR 14, 53-59, 72- The ALJ found that these activities were inconsistent AR 14. The ALJ further noted a physician’s reference to “secondary 7 gains” and “disability seeking,” in the record dated April 24, 8 2008, after Plaintiff was seen for carpal tunnel syndrome and 9 reported seeing spots before her eyes, suggesting a tendency to United States District Court For the Northern District of California 10 exaggerate. 11 these records to support a finding of malingering, the ALJ 12 articulated clear and convincing reasons for discrediting 13 Plaintiff’s testimony. 14 (9th Cir. 2001) (tendency to exaggerate undermines credibility). 15 AR 14, 346-47. Although the ALJ did not rely on Tonapetyan v. Halter, 242 F.3d 1144, 1148 Based on the clear and convincing reasons set forth by the 16 ALJ, supported by substantial evidence in the record, for 17 partially rejecting Plaintiff’s testimony, the ALJ properly 18 concluded that Plaintiff's testimony regarding her symptoms was 19 not credible to the extent it was inconsistent with the residual 20 functional capacity that the ALJ found. 21 II. 22 Plaintiff Did Not Provide Sufficient Evidence of Medically Determinable Mental Impairment A. The ALJ Satisfied His Duty to Develop the Record 23 Plaintiff contends that the ALJ failed to develop a record 24 and sufficiently evaluate her mental impairments. In social 25 security cases, an ALJ has the duty to develop the record fully 26 and fairly and to ensure that the claimant's interests are 27 considered, even when the claimant is represented by counsel. 28 21 1 Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001). 2 methods an ALJ has to develop the record is to order a CE at the 3 SSA’s expense. 4 2001). 5 claimant and the ALJ’s duty to develop the record is triggered 6 only when there is ambiguous evidence or when the record is 7 inadequate to allow for proper evaluation. 8 459. 9 subpoenaing the claimant’s physicians, submitting questions to the One of the Reed v. Massanari, 270 F.3d 838, 841 (9th Cir. However, the burden of proving disability lies with the Mayes, 276 F.3d at The ALJ may discharge this duty in several ways including: United States District Court For the Northern District of California 10 claimant’s physicians, continuing the hearing or keeping the 11 record open after the hearing to allow supplementation of the 12 record. 13 599, 602 (9th Cir. 1998) (ALJ’s indication to plaintiff and her 14 counsel that he would keep the record open so that they could 15 supplement her doctor's report satisfied ALJ’s duty to develop the 16 record). 17 Tonapetyan, 242 F.3d at 1150; Tidwell v. Apfel, 161 F.3d At the hearing before the ALJ, Plaintiff raised the 18 possibility of ADD, a learning disorder, or other underlying 19 mental impairment. 20 reported depression at one time, citing her medical records, and 21 Plaintiff testified to being prescribed medication for her 22 depression. 23 seen a therapist about her depression, Plaintiff responded that 24 she had wanted to, but hadn’t done so yet. 25 hearing, the ALJ told Plaintiff’s representative that he would 26 keep the record open for at least twenty days so that Plaintiff 27 could submit additional evidence. 28 Plaintiff had the opportunity to submit additional evidence of her AR 71. The ALJ noted that Plaintiff had AR 71-72, 343-359. When asked whether she had ever 22 AR 71. At the See AR 78-79, 99. Thus, 1 mental impairment to the ALJ, but chose not to do so. 2 that the ALJ kept the record open after the hearing for Plaintiff 3 to submit additional evidence is sufficient to satisfy any duty to 4 develop the record. 5 The fact Plaintiff submitted additional evidence of her mental health 6 to the Appeals Council, including progress notes by a treating 7 psychologist from July 20, 2010 to September 16, 2010, which were 8 included in the administrative record. 9 considered the additional evidence and determined that it did not The Appeals Council United States District Court For the Northern District of California 10 provide a basis for changing the ALJ’s decision. 11 discussed in section II.C, below, the new evidence submitted to 12 the Appeals Council did not show that any functional limitations 13 were caused by Plaintiff’s mental impairment. 14 15 AR 1-2. As B. Plaintiff Did Not Present a Colorable Claim of Mental Impairment to the ALJ Plaintiff contends that the ALJ failed to follow the 16 procedures for evaluating the severity of mental impairments 17 required by 20 C.F.R. § 404.1520a. When evaluating psychiatric 18 impairments, the ALJ must follow a “special psychiatric review 19 technique” and document the findings and conclusions in the 20 decision. Chaudhry v. Astrue, 688 F.3d 661, 670 (9th Cir. 2012). 21 As the Ninth Circuit has recently articulated, 22 23 24 25 26 27 28 In step two of the disability determination, an ALJ must determine whether the claimant has a medically severe impairment or combination of impairments. In making this determination, an ALJ is bound by 20 C.F.R. § 404.1520a. That regulation requires those reviewing an application for disability to follow a special psychiatric review technique. 20 C.F.R. § 404.1520a. Specifically, the reviewer must determine whether an applicant has a medically determinable mental impairment, id. § 404.1520a(b), rate the degree of functional limitation for four functional areas, id. § 404.1520a(c), determine the 23 severity of the mental impairment (in part based on the degree of functional limitation), id. § 404.1520a(c)(1), and then, if the impairment is severe, proceed to step three of the disability analysis to determine if the impairment meets or equals a specific listed mental disorder, id. § 404.1520a(c)(2). 1 2 3 4 At the first two levels of review, this technique is documented in a Psychiatric Review Technique Form (“PRTF”). Id. § 404.1520a(e). 5 6 Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 725 (9th Cir. 7 2011). The court noted that although the regulation had been 8 amended so that it no longer requires the PRTF to be attached to 9 the decision, “the Social Security Regulations require the ALJ to 10 United States District Court For the Northern District of California complete a PRTF and append it to the decision, or to incorporate 11 its mode of analysis into the ALJ's findings and conclusions.” 12 Id. at 725-26 (citing Gutierrez v. Apfel, 199 F.3d 1048, 1050 (9th 13 Cir. 2000), superseded by regulation as stated in Blackmon v. 14 Astrue, 719 F. Supp. 2d 80, 92 (D.D.C. 2010)). The court in 15 Keyser held, “An ALJ's failure to comply with 20 C.F.R. 16 § 404.1520a is not harmless if the claimant has a ‘colorable claim 17 of mental impairment.’” Id. at 726 (quoting Gutierrez, 199 F.3d 18 at 1051). 19 A colorable claim is one that is not “wholly insubstantial, 20 immaterial, or frivolous.” Udd v. Massanari, 245 F.3d 1096, 1099 21 (9th Cir. 2001) (quoting Boettcher v. Sec’y Health & Human Serv., 22 759 F.2d 719, 722 (9th Cir. 1985)). The special technique under 23 § 404.1520a requires an evaluation of the claimant’s “pertinent 24 symptoms, signs, and laboratory findings to determine whether you 25 have a medically determinable mental impairment(s).” 20 C.F.R. 26 § 404.1520a(b). A medically determinable impairment “must result 27 from anatomical, physiological, or psychological abnormalities 28 24 1 which can be shown by medically acceptable clinical and laboratory 2 diagnostic techniques.” 3 § 416.908; 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D). 4 before the ALJ, Plaintiff presented only one report of depression 5 or dysthymia and a prescription for prozac over a ten-year period, 6 with no records of psychotherapy or treatment by a psychologist. 7 AR 356. 8 Stephen Fair determined that Plaintiff’s medical records were 9 insufficient to find a medically determinable impairment during 20 C.F.R. § 404.1508; 20 C.F.R. On the record In his psychiatric review, state agency psychologist United States District Court For the Northern District of California 10 the assessment period of May 10, 2001 to September 30, 2007. 11 480. 12 after the hearing, Plaintiff did not present the ALJ with clinical 13 or diagnostic reports to show a colorable claim of mental 14 impairment caused by depression. 15 1605420 (C.D. Cal.) (ALJ was not required to follow special 16 procedure where claimant failed to make colorable claim of mental 17 impairment to the ALJ and presented scant evidence for the first 18 time to the Appeals Council); Bowman v. Astrue, 2011 WL 3323383 19 (C.D. Cal.) (affirming denial of benefits where the ALJ did not 20 receive any medical evidence of a medically determinable mental 21 impairment). 22 AR Though offered the opportunity to supplement her records See Miles v. Astrue, 2012 WL Similarly, Plaintiff’s self-report of ADD or other possible 23 learning disability, without any supporting medical evidence, does 24 not present a colorable claim of mental impairment. 25 circumstances may the existence of an impairment be established on 26 the basis of symptoms alone.’” 27 1005 (9th Cir. 2005) (citation omitted). 28 (“A physical or mental impairment must be established by medical “‘[U]nder no Ukolov v. Barnhart, 420 F.3d 1002, 25 See 20 C.F.R. § 404.1508 1 evidence consisting of signs, symptoms, and laboratory findings, 2 not only by your statement of symptoms.”). 3 therefore, required to follow the special technique for evaluating 4 the severity of mental impairments. 5 The ALJ was not, 7 Plaintiff contends that the new evidence provided by her 8 treating psychologist, Dr. Steinberg, and submitted to the Appeals 9 Council, substantiates her claim of mental impairment so as to 10 United States District Court For the Northern District of California 6 C. The Additional Evidence Submitted to the Appeals Council Does Not Reflect Any Functional Limitations Caused by Mental Impairment trigger the special technique of evaluating mental impairments. 11 The Appeals Council is not required to make any particular 12 evidentiary finding in rejecting new evidence submitted after an 13 adverse administrative decision. 14 Admin., 659 F.3d 1228, 1232 (9th Cir. 2011) (citing Gomez v. 15 Chater, 74 F.3d 967, 972 (9th Cir. 1996)). 16 considers the new evidence submitted to the Appeals Council in 17 light of the record as a whole to determine whether the ALJ’s 18 decision was supported by substantial evidence and was free of 19 legal error. 20 (9th Cir. 1993)). 21 F.3d 1157, 1162 (9th Cir. 2012) (the administrative record 22 includes evidence submitted to and considered by the Appeals 23 Council). 24 did not show that her depression precluded her from performing 25 suitable work or was so severe as to be disabling. 26 Taylor v. Comm’r Soc. Sec. The Court, however, Id. (citing Ramirez v. Shalala, 8 F.3d 1449, 1452 See also Brewes v. Comm’r Soc. Sec. Admin., 682 Here, the additional evidence presented by Plaintiff Dr. Steinberg treated Plaintiff from July 2010 to September 27 2010 and opined that she met the diagnostic criteria for major 28 depression pursuant to DSM-IV. AR 617. 26 Dr. Steinberg also stated that Plaintiff’s history indicated that her recurrent depression 2 began at age twelve at the time of her father’s death,5 and that 3 her depression was severely exacerbated a few years ago when the 4 man with whom she was in a long-term primary relationship was 5 deported to Mexico and not allowed to return to the United States 6 for ten years. 7 diagnostic interview substantiated the following symptoms that met 8 the criteria for major depression: “disphoric [sic] mood and loss 9 of interest in almost all usual activities, sleep disturbance, 10 United States District Court For the Northern District of California 1 psychomotor agitation, loss of energy and fatigue, feelings of 11 worthlessness, impaired concentration and indecisiveness, and 12 recurring thoughts of death.” AR 617. Dr. Steinberg opined that Plaintiff’s AR 617. 13 Dr. Steinberg’s evaluation is vague as to the severity of 14 Plaintiff’s depression during the relevant time period, noting 15 only that her depression was “severely exacerbated a few years 16 ago,” with notes indicating that Plaintiff had been sad and 17 hopeless for the past four years since her partner was deported. 18 AR 617-18. 19 Plaintiff’s depression covered the relevant time period of May 10, 20 2001 to September 30, 2007, his assessment did not opine, and 21 Plaintiff does not contend, that her depression satisfied the 22 required level of severity for mental disorders set forth in the 23 listing of impairments to presume conclusively that she was 24 disabled. Even assuming that Dr. Steinberg’s opinion that See Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 25 26 27 28 5 Elsewhere in his notes, Dr. Steinberg indicates that Plaintiff was age fifteen when her father died, AR 621, which is consistent with Plaintiff’s testimony that she was in tenth grade at the time of his death, AR 69-70. 27 1 1993) (“The required level of severity for diagnosis 12.04 is met 2 when the claimant’s impairment meets at least one paragraph A 3 criterion and at least two paragraph B criteria.”); 20 C.F.R. 4 § 404, Subpt. P, Appx. 1.6 5 6 7 8 9 6 In particular, Dr. Steinberg did not conclude that Plaintiff had any two of the requisite symptoms listed in paragraph B. The A and B criteria for affective disorders such as depression are defined as follows: A. Medically documented persistence, either continuous or intermittent, of one of the following: 1. Depressive syndrome characterized by at least four of the following: United States District Court For the Northern District of California 10 11 a. Anhedonia or pervasive loss of interest in almost all activities; or 12 13 b. Appetite disturbance with change in weight; or 14 c. Sleep disturbance; or 15 d. Psychomotor agitation or retardation; or 16 e. Decreased energy; or 17 f. Feelings of guilt or worthlessness; or 18 g. Difficulty concentrating or thinking; or 19 h. Thoughts of suicide; or i. Hallucinations, delusions, or paranoid thinking; 20 or 21 2. Manic syndrome characterized by at least three of the [listed symptoms]; or 22 23 3. Bipolar syndrome with a history of episodic periods manifested by the full symptomatic picture of both manic and depressive syndromes (and currently characterized by either or both syndromes); 24 25 26 AND 27 B. Resulting in at least two of the following: 28 1. Marked restriction of activities of daily living; or 28 1 Nor did Dr. Steinberg attribute any functional limitation to 2 Plaintiff’s depression. 3 Plaintiff exhibited “loss of interest in almost all usual 4 activities,” AR 617, he did not opine that she was unable or 5 limited in her ability to perform daily living activities, and her 6 testimony at the hearing indicated that she did actually perform 7 daily activities independently, AR 14, 361. 8 erred in failing to evaluate Plaintiff’s claim of mental 9 impairment under the special technique, any such error was Although Dr. Steinberg noted that Thus, even if the ALJ United States District Court For the Northern District of California 10 harmless because Plaintiff failed to show that her depression 11 resulted in functional loss in the four areas of function set out 12 in the special technique: (a) activities of daily living; 13 (b) social functioning; (c) concentration, persistence, or pace; 14 and (d) episodes of decompensation. 15 20 C.F.R. § 416.920a(c)(3). 16 (C.D. Cal.) (remanding for supplemental evaluation of mental Chaudry, 688 F.3d at 666-67; Cf. Gatson v. Astrue, 2011 WL 3818494 17 18 19 20 21 2. Marked difficulties in maintaining social functioning; or 3. Marked difficulties in maintaining concentration, persistence, or pace; or 4. Repeated episodes of decompensation, each of extended duration; 22 23 24 25 26 27 If the paragraph B criteria are not satisfied, the paragraph C criteria allows for a claimant to meet the listing for affective disorders if there is “[m]edically documented history of a chronic affective disorder of at least 2 years' duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support, and one of the [listed factors].” 28 29 1 impairment evidence where the claimant presented extensive mental 2 health treatment records predating the ALJ’s decision and 3 documenting “moderate limitations to understand and remember 4 detailed instructions” and “marked limitations in social 5 interactions”). 6 The ALJ’s determination that Plaintiff was not disabled under 7 the Act is supported by substantial evidence in the record. 8 Allen v. Sec. Health & Human Serv., 726 F.2d 1470, 1473 (9th Cir. 9 1984) (psychiatric evidence “shows primarily that a disorder See United States District Court For the Northern District of California 10 exists [but] does not show that it was of disabling severity”). 11 Even after having the opportunity to supplement her medical 12 records, Plaintiff did not demonstrate that she had a medically 13 determinable mental impairment that prevented her from engaging in 14 substantial gainful employment. 15 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). 16 III. Remand Is Not Warranted Reddick v. Chater, 157 F.3d 715, 17 Plaintiff seeks remand of her application for disability 18 benefits to the ALJ for consideration of new evidence or for award 19 of benefits without rehearing. 20 fails to demonstrate either basis for remand. 21 Pl.’s Mot. at 1-2. Plaintiff When seeking remand for consideration of new evidence 22 submitted after the Commissioner’s final decision has been made, a 23 plaintiff “must show that there is: (1) new evidence that is 24 material, and (2) good cause for his failure to incorporate that 25 evidence into the administrative record.” 26 & Human Serv., 812 F.2d 509, 511 (9th Cir. 1987) (citing Allen, 27 726 F.2d at 1473 and 42 U.S.C. § 405(g)). 28 meet the good cause requirement by merely obtaining a more 30 Sanchez v. Sec. Health “A claimant does not 1 favorable report once his or her claim has been denied.” 2 Massanari, 276 F.3d 453, 463 (9th Cir. 2001). 3 after issuance of the Commissioner’s final decision “would be 4 material to a new application, but not probative of [the 5 plaintiff's] condition at the hearing.” 6 Mayes v. New reports made Sanchez, 812 F.2d at 512. Plaintiff has submitted new medical records of treatment for 7 her pneumonia and/or a lung impairment dated between August 17, 8 2011 and October 19, 2011. Pl.’s Notice of New and Material 9 Evidence (Docket No. 14). These records are not material to United States District Court For the Northern District of California 10 Plaintiff’s condition as it existed at the time of the hearing and 11 do not satisfy the applicable standard for remand for 12 consideration of new evidence. 13 Furthermore, Plaintiff has not demonstrated that the record 14 supports an award of benefits. 15 may direct an award of benefits where the record has been fully 16 developed and where further administrative proceedings would serve 17 no useful purpose.’”) (quoting Smolen, 80 F.3d at 1292). 18 Plaintiff’s motion for remand is therefore denied. 19 Sanchez, 812 F.2d at 512. Cf. Brewes, 682 F.3d at 1164 (“‘We CONCLUSION 20 Based on the foregoing, Defendant’s cross-motion for summary 21 judgment is granted and Plaintiff’s motion for summary judgment or 22 \\ 23 \\ 24 \\ 25 26 27 28 31 1 for remand is denied. 2 parties shall bear their own costs. Judgment shall enter accordingly. The 3 4 IT IS SO ORDERED. 5 6 7 Dated: 9/26/2012 CLAUDIA WILKEN United States District Judge 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 32
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