Harvey v. Commissioner of Social Security, No. 2:2016cv00129 - Document 19 (E.D. Wash. 2017)

Court Description: ORDER denying 14 Plaintiff's Motion for Summary Judgment and granting 15 Defendant's Motion for Summary Judgment. Signed by Magistrate Judge Mary K. Dimke. (KW, Case Administrator)

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Harvey v. Commissioner of Social Security Doc. 19 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF WASHINGTON 9 DEANNA K. HARVEY, 10 No. 2:16-cv-00129-MKD 12 CAROLYN W. COLVIN, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 13 Acting Commissioner of Social Security, ECF Nos. 14, 15 Plaintiff, 11 vs. 14 Defendant. 15 BEFORE THE COURT are the parties’ cross-motions for summary 16 judgment. ECF Nos. 14, 15. The parties consented to proceed before a magistrate 17 judge. ECF No. 18. The Court, having reviewed the administrative record and the 18 parties’ briefing, is fully informed. For the reasons discussed below, the Court 19 denies Plaintiff’s motion (ECF No. 14) and grants Defendant’s motion (ECF No. 20 15). 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 1 Dockets.Justia.com 1 2 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. §§ 405(g); 3 1383(c)(3). 4 5 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 6 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 7 limited; the Commissioner’s decision will be disturbed “only if it is not supported 8 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 9 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 10 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 11 (quotation and citation omitted). Stated differently, substantial evidence equates to 12 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 13 citation omitted). In determining whether the standard has been satisfied, a 14 reviewing court must consider the entire record as a whole rather than searching 15 for supporting evidence in isolation. Id. 16 In reviewing a denial of benefits, a district court may not substitute its 17 judgment for that of the Commissioner. If the evidence in the record “is 18 susceptible to more than one rational interpretation, [the court] must uphold the 19 ALJ’s findings if they are supported by inferences reasonably drawn from the 20 record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 2 1 court “may not reverse an ALJ’s decision on account of an error that is harmless.” 2 Id. An error is harmless “where it is inconsequential to the [ALJ’s] ultimate 3 nondisability determination.” Id. at 1115 (quotation and citation omitted). The 4 party appealing the ALJ’s decision generally bears the burden of establishing that 5 it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 6 7 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 8 the meaning of the Social Security Act. First, the claimant must be “unable to 9 engage in any substantial gainful activity by reason of any medically determinable 10 physical or mental impairment which can be expected to result in death or which 11 has lasted or can be expected to last for a continuous period of not less than twelve 12 months.” 42 U.S.C. §§ 423(d)(1)(A); 1382c(a)(3)(A). Second, the claimant’s 13 impairment must be “of such severity that he is not only unable to do his previous 14 work[,] but cannot, considering his age, education, and work experience, engage in 15 any other kind of substantial gainful work which exists in the national economy.” 16 42 U.S.C. §§ 423(d)(2)(A); 1382c(a)(3)(B). 17 The Commissioner has established a five-step sequential analysis to 18 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 19 404.1520(a)(4)(i)-(v); 416.920(a)(4)(i)-(v). At step one, the Commissioner 20 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i); 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 3 1 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 2 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 3 404.1520(b); 416.920(b). 4 If the claimant is not engaged in substantial gainful activity, the analysis 5 proceeds to step two. At this step, the Commissioner considers the severity of the 6 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). If the 7 claimant suffers from “any impairment or combination of impairments which 8 significantly limits [his or her] physical or mental ability to do basic work 9 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c); 10 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 11 however, the Commissioner must find that the claimant is not disabled. 20 C.F.R. 12 §§ 404.1520(c); 416.920(c). 13 At step three, the Commissioner compares the claimant’s impairment to 14 severe impairments recognized by the Commissioner to be so severe as to preclude 15 a person from engaging in substantial gainful activity. 20 C.F.R. §§ 16 404.1520(a)(4)(iii); 416.920(a)(4)(iii). If the impairment is as severe or more 17 severe than one of the enumerated impairments, the Commissioner must find the 18 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d); 416.920(d). 19 If the severity of the claimant’s impairment does not meet or exceed the 20 severity of the enumerated impairments, the Commissioner must pause to assess 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 4 1 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 2 defined generally as the claimant’s ability to perform physical and mental work 3 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ 4 404.1545(a)(1); 416.945(a)(1), is relevant to both the fourth and fifth steps of the 5 analysis. 6 At step four, the Commissioner considers whether, in view of the claimant’s 7 RFC, the claimant is capable of performing work that he or she has performed in 8 the past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). 9 If the claimant is capable of performing past relevant work, the Commissioner 10 must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f); 416.920(f). 11 If the claimant is incapable of performing such work, the analysis proceeds to step 12 five. 13 At step five, the Commissioner considers whether, in view of the claimant’s 14 RFC, the claimant is capable of performing other work in the national economy. 15 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). In making this determination, 16 the Commissioner must also consider vocational factors such as the claimant’s age, 17 education and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v); 18 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the 19 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 20 404.1520(g)(1); 416.920(g)(1). If the claimant is not capable of adjusting to other 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 5 1 work, analysis concludes with a finding that the claimant is disabled and is 2 therefore entitled to benefits. 20 C.F.R. §§ 404.1520(g)(1); 416.920(g)(1). 3 The claimant bears the burden of proof at steps one through four above. 4 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 5 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 6 capable of performing other work; and (2) such work “exists in significant 7 numbers in the national economy.” 20 C.F.R. §§ 404.1560(c)(2); 416.920(c)(2); 8 Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 9 10 ALJ’S FINDINGS Plaintiff applied for supplemental security income and disability insurance 11 benefits on May 8, 2012, alleging an onset date of August 1, 2009. Tr. 214-22. 12 The applications were denied initially, Tr. 92-119, 150-52, and upon 13 reconsideration. Tr. 156-62. Plaintiff appeared for a hearing before an 14 administrative law judge (ALJ) on August 21, 2014. Tr. 47-91. On September 26, 15 2013, the ALJ denied Plaintiff’s claim. Tr. 22-37. 16 At the outset, the ALJ found that Plaintiff met the insured status 17 requirements of the Act with respect to her disability insurance benefit claim 18 through December 31, 2013. Tr. 27. At step one, the ALJ found Plaintiff has not 19 engaged in substantial gainful activity since August 1, 2009, the onset date. Tr. 27. 20 At step two, the ALJ found Plaintiff has the following severe impairments: mild 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 6 1 bilateral carpal tunnel syndrome, bilateral osteoarthritis of the shoulders, lumbar 2 facet arthropathy with chronic low back pain, and mild obesity. Tr. 27. At step 3 three, the ALJ found that Plaintiff does not have an impairment or combination of 4 impairments that meets or equals a listed impairment. Tr. 30. The ALJ then found 5 that Plaintiff has the RFC 6 7 8 9 to lift and carry 10 pounds occasionally and small articles frequently, stand/walk 6 hours in an 8-hour day, and sit without limit. Standing and walking 6 hours cannot all be consecutive. The claimant needs at least every two hours, better if every hour, a stretch period of a minute or two. The claimant can never reach overhead bilaterally and can occasionally reach bilaterally in all other directions. The claimant must avoid concentrated exposure to extreme temperatures and vibration and all exposure to hazards. 10 Tr. 30-31. 11 At step four, the ALJ found Plaintiff is unable to perform any past relevant 12 work. Tr. 35. At step five, the ALJ found that considering Plaintiff’s age, 13 education, work experience, and RFC, there are jobs in significant numbers in the 14 national economy that Plaintiff can perform, such as call-out operator and 15 telemarketer. Tr. 36. The ALJ concluded Plaintiff has not been under a disability, 16 as defined in the Social Security Act, from August 1, 2009, through the date of the 17 decision. Tr. 37. 18 On February 25, 2016, the Appeals Council denied review, Tr. 1-7, making 19 the ALJ’s decision the Commissioner’s final decision for purposes of judicial 20 review. See 42 U.S.C. § 1383(c)(3); 20 C.F.R. §§ 416.1481, 422.210. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 7 1 2 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 3 her supplemental security income benefits under Title XVI and disability insurance 4 benefits under Title II of the Social Security Act. ECF No. 14. Plaintiff raises the 5 following issues for this Court’s review: 6 1. Whether the ALJ properly determined Plaintiff’s severe impairments at 7 step two; 8 2. Whether the ALJ properly weighed Plaintiff’s symptom claims; 9 3. Whether the ALJ properly determined Plaintiff’s residual functional 10 capacity; and 11 4. Whether the ALJ posed a complete hypothetical to the vocational expert. 12 ECF No. 14 at 8. 13 DISCUSSION 14 A. Step Two 15 First, Plaintiff faults the ALJ for failing to find mental impairments severe at 16 step two and finding that the diagnosis of fibromyalgia was not medically 17 determined. ECF No. 14 at 11-12. 18 1. Mental Impairments 19 Plaintiff contends the ALJ should have found at step two that she suffers 20 severe mental impairments. ECF No. 14 at 11-12. The ALJ found that the record 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 8 1 contains conflicting evidence and failed to establish that Plaintiff suffers severe 2 mental impairments. Tr. 28-30. 3 A physical or mental impairment is one that “results from anatomical, 4 physiological, or psychological abnormalities which are demonstrable by 5 medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. §§ 6 423(d)(3), 1382c(a)(3)(D). An impairment must be established by medical 7 evidence consisting of signs, symptoms, and laboratory findings, and “under no 8 circumstances may the existence of an impairment be established on the basis of 9 symptoms alone.” Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005) (citing 10 S.S.R. 96-4p, 1996 WL 374187 (July 2, 1996)) (defining “symptoms” as an 11 “individual’s own perception or description of the impact of” the impairment). 12 The fact that a medically determinable condition exists does not 13 automatically mean the symptoms are “severe” or “disabling” as defined by the 14 Social Security regulations. See, e.g., Edlund v. Massanari, 253 F.3d 1152, 115915 60 (9th Cir. 2001); Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989); Key v. 16 Heckler, 754 F.2d 1545, 1549-50 (9th Cir. 1985). An impairment, to be considered 17 severe, must significantly limit an individual’s ability to perform basic work 18 activities. 20 C.F.R. § 416.920(c); Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 19 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 9 1 1996). An impairment is not severe if it does not significantly limit an individual’s 2 ability to perform basic work activities. 20 C.F.R. §§ 404.1521(a), 416.921(a).1 3 An impairment does not limit an ability to do basic work activities where it “would 4 have no more than a minimal effect on an individual’s ability to work.” Yuckert v. 5 Bowen, 841 F.2d 303, 306 (9th Cir. 1988). 6 Basic work activities include walking, standing, sitting, lifting, pushing, 7 pulling, reaching, carrying, or handling; seeing, hearing, and speaking; 8 understanding, carrying out and remembering simple instructions; responding 9 appropriately to supervision, coworkers and usual work situations; and dealing 10 with changes in a routine work setting. 20 C.F.R. §§ 404.1521(b), 416.1521(b); 11 S.S.R. 85-28. 12 Plaintiff bears the burden of establishing the existence of a severe 13 impairment or combination of impairments, which prevent her from performing 14 substantial gainful activity and that the impairment or combination of impairments 15 lasted for at least twelve consecutive months. 20 C.F.R. § 404.1512(a); Edlund, 16 253 F.3d at 1159-60. However, step two is “a de minimus screening device used to 17 dispose of groundless claims.” Smolen, 80 F.3d at 1290. “Thus, applying our 18 19 1 The Supreme Court upheld the validity of the Commissioner’s severity regulation, 20 as clarified in S.S.R. 85-28, in Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987). 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 10 1 normal standard of review to the requirements of step two, [the court] must 2 determine whether the ALJ had substantial evidence to find that the medical 3 evidence clearly established that [Plaintiff] did not have a medically severe 4 impairment or combination of impairments.” Webb v. Barnhart, 433 F.3d 683, 687 5 (9th Cir. 2005). The ALJ is responsible for determining credibility and resolving 6 conflicts in medical testimony. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 7 1989) (Where medical reports are inconclusive, “ ‘questions of credibility and 8 resolution of conflicts in the testimony are solely functions of the Secretary.’ ”). 9 Here, the ALJ found that the reviewing psychologist, Dr. Martin, testified 10 that Plaintiff’s mental health impairments are generally mild and at most, mild to 11 moderate, indicating that they are non-severe. Tr. 28-29 (citing Tr. 63-65, 67-68) 12 (Dr. Martin opined that Plaintiff’s mental impairments are generally non-severe). 13 The opinion of a nonexamining physician may serve as substantial evidence if it is 14 supported by other evidence in the record and is consistent with it. Andrews v. 15 Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 16 The ALJ found Dr. Martin’s opinion was consistent with the record as a 17 whole, including Plaintiff’s reported activities. Tr. 28-29. Relevant factors when 18 evaluating any medical opinion include the amount of relevant evidence that 19 supports the opinion, the quality of the explanation provided in the opinion, and the 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 11 1 consistency of the medical opinion with the record as a whole.2 Lingenfelter v. 2 Astrue, 504 F.3d 1028, 1042 (9th Cir. 2007); Orn v. Astrue, 495 F.3d 625, 631 (9th 3 Cir. 2007). Further, opinions that are consistent with a claimant’s functioning are 4 entitled to greater weight. See Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 5 595, 601-02 (9th Cir. 1999) (An ALJ may discount an opinion that is inconsistent 6 with a claimant’s reported functioning). 7 The ALJ found, for example, consistent with Dr. Martin’s opinion, that in 8 September 2011 Plaintiff told examining psychologist Debra Brown, Ph.D., she 9 performed paid caregiving, and was sometimes also paid to cut hair. Tr. 28-29 10 (citing Tr. 773). The ALJ also found that at the same time, Plaintiff told Dr. 11 Brown that she visited friends; enjoyed driving around for entertainment; drove her 12 son to and from school; and, once a week, prepared dinner for several different 13 14 2 The record as a whole, and particularly after onset, supports Dr. Martin’s opinion. 15 Many of the mental health treatment records, for example, relate to a period several 16 years before alleged onset in August 2009. See, e.g., Tr. 780-830 (treatment 17 records from April 2002 through November 2003); Tr. 377-462 (treatment records 18 from January 2005 through July 2007). Medical opinions that predate the alleged 19 onset of disability are of limited relevance. Carmickle v. Comm’r of Soc. Sec. 20 Admin., 533 F.3d 1155, 1165 (9th Cir. 2008). 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 12 1 people. Tr. 28-29 (citing Tr. 773). This wide range of activities is consistent with 2 Dr. Martin’s opinion that Plaintiff has no more than mild mental limitations. In 3 addition, the ALJ further found Plaintiff told Dr. Brown that she was not working 4 because she was taking care of her son, rather than as a result of her impairments, 5 another indication of non-severe impairments. Tr. 29 (citing Tr. 774). See Rollins 6 v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (the ability to care for children 7 may undermine complaints of severe limitations). 8 The ALJ found the evidence of Plaintiff’s activities in 2012 similarly 9 supported Dr. Martin’s opinion. Tr. 29. The ALJ found, for example, that in May 10 2012 Plaintiff told examining psychologist Dr. Arnold she drove her daughter to 11 work in order to have the car available if she [Plaintiff] needed it; Plaintiff also 12 reported that she played bingo, checked in on a friend’s mother, took the bus, and 13 performed other routine tasks. Tr. 29 (citing Tr. 720). 14 The ALJ further found Dr. Martin testified that, despite a reported increase 15 in symptoms between April and August 2014, Plaintiff continued to engage in a 16 wide range of activities, again indicating no more than mild limitations. Tr. 29 17 (citing Tr. 1161) (in June 2014 Plaintiff told treatment providers at Frontier 18 Behavioral Health (FBH) that, although she was not sleeping well, medications 19 “helped her get out more,” depressive symptoms had decreased, and she had 20 attended a basketball event as well as her high school reunion); (citing Tr. 113821 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 13 1 39) (in August 2014 Plaintiff told treatment providers at FBH she was suffering 2 anxiety and OCD symptoms, but at the same time, reported she cleaned her 3 friend’s house, gave rides to friends, and attended support group meetings). The 4 ALJ is correct that these reported activities support Dr. Martin’s opinion that 5 Plaintiff suffers no more than mild mental impairments. 6 In addition, the ALJ found Dr. Martin’s opinion that Plaintiff’s mental 7 impairments are non-severe is consistent with Plaintiff’s mental status 8 examinations. Tr. 29. For example, the ALJ found that in September 2011, 9 examining psychologist Dr. Brown reported Plaintiff scored 30 out of 30 points on 10 the MSE; successfully performed serial seven calculations; recalled 3 of 3 nouns 11 after a 5-minute delay; and successfully performed a 3-step command. Tr. 29 12 (citing Tr. 776). As another example, the ALJ found that in May 2012, examining 13 psychologist John Arnold, Ph.D., reported that Plaintiff again scored 30 of 30 14 points, indicating no more than mild limitations. Tr. 29 (citing Tr. 724). Dr. 15 Arnold reported Plaintiff performed serial sevens without error and lost her place 16 only once; performed serial threes without error; spelled “world” forward and 17 backward correctly; and although noted to be anxious, Plaintiff was nonetheless 18 alert, with normal speech and full eye contact, and displayed no remarkable motor 19 activity. Tr. 29 (citing Tr. 724). Because an ALJ may properly rely on a 20 reviewing physician’s opinion supported by and consistent with other evidence, 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 14 1 Andrews, 53 F. 3d at 1041, the ALJ properly relied on Dr. Martin’s opinion. 2 Last, the ALJ relied on the consistency of Dr. Martin’s opinion with mental 3 health treatment records for the relevant period. Tr. 29. For example, the ALJ 4 found treatment provider Art Flores, PAC, reported in April 2012 that Plaintiff had 5 been off of medication for OCD and depression for four months. Tr. 710. 6 However, within a month and a half of restarting medication, Plaintiff told Mr. 7 Flores her symptoms had improved. Tr. 29 (citing Tr. 714). Because an 8 impairment that can be effectively controlled with medication is not disabling, 9 Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006), this 10 evidence supports Dr. Martin’s opinion. The ALJ further found, as another 11 example, that in September 2012, Plaintiff told Mr. Flores she was doing well with 12 treatment, denied depression, and stated that she no longer obsessed about pain. 13 Tr. 29 (citing Tr. 762). In addition, the ALJ found, as a further example, that 14 during the 4-month period of increased symptoms reported by Plaintiff, from April 15 to August 2014, on August 11, 2014, treatment providers at FBH observed 16 Plaintiff’s affect was constricted; however, they also noted Plaintiff presented as 17 alert, attentive, and with a cooperative demeanor; moreover, Plaintiff maintained 18 good eye contact. Tr. 29 (citing Tr. 1142-43). Because Dr. Martin’s opinion was 19 supported by substantial evidence, the ALJ properly credited Dr. Martin’s opinion 20 that Plaintiff does not suffer severe mental impairments. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 15 1 2. Fibromyalgia 2 Next, Plaintiff faults the ALJ for finding that “chronic pain condition 3 including fibromyalgia” was not a severe impairment. ECF No. 14 at 9-11. The 4 ALJ found fibromyalgia was not medically determined. Tr. 27-28. 5 A physical or mental impairment is one that “results from anatomical, 6 physiological, or psychological abnormalities which are demonstrated by 7 medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. §§ 8 423(d)(3), 1382c(a)(3)(D). An impairment must be established by medical 9 evidence consisting of signs, symptoms, and laboratory findings, and “under no 10 circumstances may the existence of an impairment be established on the basis of 11 symptoms alone.” Ukolov, 420 F.3d at 1005. In addition, an ALJ need not 12 presume that a diagnosis equates to work-related limitations. See Key, 754 F.2d at 13 1549 (“the mere diagnosis of an impairment . . . is not sufficient to sustain a 14 finding of disability.”). 15 Here, the ALJ found the medical evidence did not show the requisite criteria 16 for establishing that fibromyalgia was a medically determinable impairment. Tr. 17 27-28. The ALJ further found that a diagnosis of fibromyalgia is not enough to 18 determine that fibromyalgia is medically determinable. Tr. 28. The ALJ opined, 19 relying on S.S.R. 12-2p (2012 WL 3104869 at *2-*3), that the evidence must 20 show, in part, that the claimant has a history of widespread, bilateral body pain and 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 16 1 axial skeletal pain that has persisted for at least three months.3 Tr. 28. 2 The ALJ found that medical records showed, at most, cursory mention of 3 fibromyalgia with limited treatment. Tr. 28 (citing Tr. 516) (In August 2008, 4 treatment provider Gloria Goodwin, M.A, listed “fibromyalgia/myalgia/left hand 5 pain/synovitis”; she noted Plaintiff was “still having problems with hand swelling, 6 left, painful . . . Neurontin made tired, wiped out, miserable”; Lyrica was 7 restarted); (citing Tr. 515) (In September 2008, Ms. Goodwin noted 8 “fibromyalgia/muscle cramps/myalgia/fatigue” and “not taking Lyrica – hands quit 9 10 11 12 3 In addition, the ALJ further noted that there must be evidence that: either a 13 physician conducted a physical examination of the claimant, which included 14 testing tender point sites, with at least 11 positive tender point sites, or there must 15 be repeated manifestations of six or more fibromyalgia symptoms, signs, or co16 occurring conditions. Finally, the ALJ noted that there must also be evidence that 17 a physician ruled out other physical or mental disorders that could cause the 18 symptoms or signs. Tr. 28 (citing S.S.R. 12-2p) (2012 WL 3104869 at *2-3). The 19 ALJ found that these are not present, and Plaintiff does not point to evidence the 20 ALJ should have credited. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 17 1 swelling and hurting.”).4 The ALJ noted that, other than the few records cited, 2 there was otherwise no mention of positive tender points or that other conditions 3 were ruled out by an acceptable medical source, as required. Tr. 28. Thus, the 4 ALJ found, in the absence of such evidence, fibromyalgia was not a medically 5 determinable impairment. Tr. 28. 6 Next, the ALJ noted that the finding of no medically determinable 7 impairment was consistent with the testimony of medical expert Dr. Jahnke. Tr. 28 8 (referring to Tr. 57-58). The opinion of a nonexamining physician serves as 9 substantial evidence if it is supported by other evidence in the record and is 10 consistent with it. Andrews, 53 F.3d at 1041. Dr. Jahnke opined the record 11 showed that Dr. Purdy had diagnosed fibromyalgia in 2008 but, other than Exhibit 12 13 4 See also Tr. 28 (citing Tr. 519) (In April 2008, Ms. Goodwin noted 14 “fatigue/fibromyalgia,” Lyrica causes “her to be very tired during the day,” so 15 Plaintiff was now taking as needed and “feels it has helped pain”); (citing Tr. 520) 16 (In April 2008, treatment provider Angela Purdy, M.A., questioned the diagnosis: 17 “Does she have fibromyalgia?” and noted that Plaintiff had a lot of muscle cramps 18 and was getting ready to start a new job); (citing Tr. 749) (In July 2012, treatment 19 provider Art Flores, PAC noted a diagnosis of fibromyalgia and prescribed 20 Amitriptyline). 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 18 1 4F, see Tr. 466- 527, it was never mentioned again. Tr. 28 (citing Dr. Jahnke at Tr. 2 57); (citing e.g., Tr. 515-16) (Ms. Goodwin’s treatment notes in August and 3 December 2008 indicated “fibromyalgia/muscle cramps/myalgia/fatigue”); (citing 4 Tr. 519-20) (In April 2008, treatment providers Ms. Goodwin and Ms. Purdy noted 5 fatigue/fibromyalgia; Plaintiff feels Lyrica has helped her pain). Dr. Jahnke did 6 not reference a later record, in 2012, but the ALJ did. Tr. 28 (citing Tr. 749) (in 7 July 2012 treatment provider Mr. Flores noted a diagnosis of fibromyalgia and 8 prescribed Amitriptyline; no pressure points are mentioned). The ALJ found that 9 Plaintiff has failed to demonstrate (1) a history of widespread, bilateral body pain 10 and axial skeletal pain that has persisted for at least three months, and (2) evidence 11 that either (3) a physician conducted a physical examination which included testing 12 tender point sites, with at least 11 positive tender point sites, or (4) repeated 13 manifestations of six or more fibromyalgia symptoms, signs, or co-occurring 14 conditions and (5) evidence that a physician ruled out other physical or mental 15 disorders that could cause the symptoms or signs. Tr. 28 (citing S.S.R. 12-2p). 16 Furthermore, as Dr. Jahnke noted, there was no record of “serial visits over time” 17 with repeated complaints and repeated attempts to ameliorate symptoms, Tr. 57-58, 18 as one would expect with a severe impairment. 19 Furthermore, even if the ALJ should have determined one of the conditions 20 identified by Plaintiff is a severe impairment, any error would be harmless because 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 19 1 the step was resolved in Plaintiff’s favor. See Stout v. Comm’r of Soc. Sec. Admin., 2 454 F.3d 1050, 1055 (9th Cir. 2006); Burch v. Barnhart, 400 F.3d 676, 682 (9th 3 Cir. 2005). Plaintiff makes no showing that either of the conditions mentioned 4 creates limitations not already accounted for in the RFC and otherwise fails to 5 develop the argument. See Carmickle, 533 F.3d at 1161 n.2 (9th Cir. 2008) 6 (determining issue not argued with specificity may not be considered by the 7 Court). Thus, the ALJ’s step two finding is legally sufficient. 8 B. Adverse Credibility Finding 9 Plaintiff next faults the ALJ for failing to provide specific findings with 10 clear and convincing reasons for discrediting her symptom claims. ECF No. 14 at 11 12-13. An ALJ engages in a two-step analysis to determine whether a claimant’s 12 testimony regarding subjective pain or symptoms is credible. “First, the ALJ must 13 determine whether there is objective medical evidence of an underlying 14 impairment which could reasonably be expected to produce the pain or other 15 symptoms alleged.” Molina, 674 F.3d at 1112 (internal quotation marks omitted). 16 “The claimant is not required to show that her impairment could reasonably be 17 expected to cause the severity of the symptom she has alleged; she need only show 18 that it could reasonably have caused some degree of the symptom.” Vasquez v. 19 Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). 20 Second, “[i]f the claimant meets the first test and there is no evidence of 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 20 1 malingering, the ALJ can only reject the claimant’s testimony about the severity of 2 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 3 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal 4 citations and quotations omitted). “General findings are insufficient; rather, the 5 ALJ must identify what testimony is not credible and what evidence undermines 6 the claimant’s complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th 7 Cir. 1995)); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he ALJ 8 must make a credibility determination with findings sufficiently specific to permit 9 the court to conclude that the ALJ did not arbitrarily discredit claimant’s 10 testimony.”). “The clear and convincing [evidence] standard is the most 11 demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 12 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 13 924 (9th Cir. 2002)). 14 In making an adverse credibility determination, the ALJ may consider, inter 15 alia, (1) the claimant’s reputation for truthfulness; (2) inconsistencies in the 16 claimant’s testimony or between her testimony and her conduct; (3) the claimant’s 17 daily living activities; (4) the claimant’s work record; and (5) testimony from 18 physicians or third parties concerning the nature, severity, and effect of the 19 claimant’s condition. Thomas, 278 F.3d at 958-59. 20 As an initial matter, Plaintiff failed to address any of the specific reasons the 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 21 1 ALJ provided in support of the adverse credibility finding. ECF No. 14 at 13. The 2 Court may decline to address an argument that is not raised with specificity. 3 Carmickle, 533 F.3d at 1161 n.2. The Court finds, nonetheless, that the ALJ 4 provided specific, clear, and convincing reasons for finding that Plaintiff’s 5 statements concerning the intensity, persistence, and limiting effects of her 6 symptoms “are not entirely credible.” Tr. 31. 7 1. Reasons for Stopping Work and Inconsistent Statements 8 The ALJ found that disparities about why and when Plaintiff stopped 9 working raise a significant credibility concern. Tr. 31-32. When considering a 10 claimant’s contention that she cannot work because of her impairments, it is 11 appropriate to consider whether the claimant has not worked for reasons unrelated 12 to her alleged disability. See Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 13 2001) (the fact that the claimant left his job because he was laid off, rather than 14 because he was injured, was a clear and convincing reason to find him not 15 credible). In making a credibility evaluation, the ALJ may also rely on ordinary 16 techniques of credibility evaluation. Smolen, 80 F.3d at 1284. One strong 17 indication of the credibility of an individual’s statements is their consistency, both 18 internally and with other information in the case record. Id. In assessing 19 credibility, it is appropriate for an ALJ to consider inconsistent statements made by 20 a claimant. See Thomas, 278 F.3d at 958-59 (ALJ may consider inconsistent 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 22 1 statements). 2 First, the ALJ cited Plaintiff’s testimony that her last job ended because she 3 needed to be available to her son 24 hours a day after he left a treatment facility, 4 rather than as a result of her impairments. Tr. 31 (citing Tr. 71) (Plaintiff testified 5 her last job ended because her son was coming home after being in a treatment 6 center and she needed to be available 24 hours a day). Further, the ALJ cited 7 evidence that Plaintiff’s failure to return to work was related to reasons other than 8 her impairments. Tr. 31 (citing Tr. 774) (in September 2011, Plaintiff told 9 examining psychologist Dr. Brown that she was not working because she was 10 taking care of her son, rather than as a result of her limitations). The ALJ cited 11 substantial evidence to support her finding that the reasons given by Plaintiff for 12 not working are “inconsistent with the claim here, that her medical condition has 13 prevented her from working since the alleged onset date.” Tr. 31. 14 The ALJ found Plaintiff’s credibility was similarly undermined because she 15 inconsistently reported when she stopped working. Tr. 31. For example, the ALJ 16 found Plaintiff testified that she had not worked since her alleged onset date of 17 August 1, 2009. Tr. 31 (citing Tr. 71-72) (Plaintiff testified her last job was at 18 Spokane Youth Sports Bingo, and it ended in April 2009); see also Tr. 292 19 (Vocational and Work History Form noted Plaintiff’s last employment as a bingo 20 caller ended in April 2009). But, in March 2011, Plaintiff told Dr. Lynch she had 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 23 1 last worked July 3, 2010. Tr. 31 (citing Tr. 573). The ALJ further found that in 2 January 2011, Plaintiff reported that she was working as a hairstylist. Tr. 31 3 (citing Tr. 605) (Plaintiff told treatment providers in the ER that she gave a hair 4 permanent and this aggravated her shoulder pain). The ALJ permissibly relied on 5 these inconsistencies to discredit Plaintiff’s symptom claims. Thomas, 278 F.3d at 6 958-59. 7 2. Ability to Work with Impairments 8 Next, the ALJ cited evidence indicating that Plaintiff worked after the 9 alleged onset date, although not at SGA levels. Tr. 31. Working with an 10 impairment supports a conclusion that the impairment is not disabling. See Drouin 11 v. Sullivan, 966 F.2d 1255, 1258 (9th Cir. 1992). Specifically, the ALJ found that 12 in September 2011, Plaintiff told examining psychologist Dr. Brown she provided 13 some caregiving “for a woman for which she gets some pay”; Plaintiff additionally 14 reported she sometimes provided haircuts in exchange for extra spending money, 15 and was not working because she was taking care of her son. Tr. 31 (citing Tr. 16 773-74). The ALJ cited additional evidence that Plaintiff worked after onset in 17 August 2009, further casting doubt on the extent to which Plaintiff’s symptoms 18 actually limited her. Tr. 31-32 (citing e.g., Tr. 605) (on January 26, 2011, Plaintiff 19 went to the ER for shoulder pain; she reported that she worked that day as a 20 hairstylist); (citing Tr. 573) (On March 22, 2011, Plaintiff told treating physician 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 24 1 Patrick Lynch, Jr., M.D., that she had last worked on July 3, 2010). The ALJ 2 found that the ability to work cast doubt on whether Plaintiff’s employment ended 3 due to medical conditions, and it cast doubt on the extent to which Plaintiff’s 4 symptoms actually limit her. Tr. 31-32. This was a clear and convincing reason 5 for the ALJ to find Plaintiff not credible. 6 3. Daily Activities 7 The ALJ found activities performed by Plaintiff further belie her alleged 8 symptom and limitation severity. Tr. 32. A claimant need not be utterly 9 incapacitated in order to be eligible for benefits. See Orn, 495 F.3d at 639 (“[T]he 10 mere fact that a plaintiff has carried on certain activities . . . does not in any way 11 detract from her credibility as to her overall disability.”). However, as in this case, 12 “[e]ven where [Plaintiff’s daily] activities suggest some difficulty functioning, they 13 may be grounds for discrediting the claimant’s testimony to the extent that they 14 contradict claims of a totally debilitating impairment.” Molina, 674 F.3d at 1113. 15 Here, the ALJ cited, for example, Plaintiff’s reports that she worked after 16 onset, indicating abilities greater than alleged. Tr. 32 (citing Tr. 554) (In January 17 2010, Plaintiff told treating physician Dr. Lynch she was “currently working as a 18 hair stylist”); (citing Tr. 773-74) (In September 2011, Plaintiff told examining 19 psychologist Dr. Brown that she performed some paid caregiving and sometimes 20 also cut hair for extra money). This appears to contradict claims of a totally 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 25 1 debilitating impairment,5 such as Plaintiff’s testimony that she was unable to hold 2 anything in her hands. Tr. 31 (citing Tr. 77) (Plaintiff testified that she drops 3 everything she tries to pick up). As another example, the ALJ relied on Plaintiff’s 4 additional activities, including the ability to regularly drive and cook. Tr. 32 5 (citing Tr. 773-74) (In September 2011, Plaintiff told Dr. Brown she drove 6 regularly; specifically, Plaintiff reported she took her son to and from school, and 7 enjoyed driving around for entertainment); (citing Tr. 773) (Plaintiff also told Dr. 8 Brown that, once a week, she prepared dinner for several different people); (citing 9 Tr. 720) (Plaintiff told examining psychologist Dr. Arnold in May 2012 that she 10 drove her daughter to work if Plaintiff needed to keep the car). As yet another 11 example, the ALJ further found Plaintiff also told Dr. Arnold that, throughout the 12 day, she went to play bingo, took the bus, checked in on her friend’s mother, and 13 performed other daily routine activities. Tr. 32 (citing Tr. 720). Further, as 14 another example, the ALJ additionally found that in June 2014, Plaintiff told 15 treatment providers at Frontier Behavioral Health that she had attended her high 16 school reunion, attended a local basketball event, participated in a friend’s 17 18 5 Plaintiff testified she was unable to work entirely due to psychological problems, 19 Tr. 74, however, she also testified that her hands are painful, numb, and she drops 20 everything she tries to pick up. Tr. 77. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 26 1 wedding, and helped several women style their hair. Tr. 32 (citing Tr. 1161, 2 1164). Moreover, the ALJ found that in August 2014, Plaintiff told providers at 3 FBH that she cleaned a friend’s house, gave rides to her friends, and attended 4 support group meetings. Tr. 32 (citing Tr. 1139). The ALJ concluded such a range 5 of activities strongly suggested that Plaintiff remained capable of greater physical 6 functioning than alleged. Tr. 32. This was a clear and convincing reason to find 7 Plaintiff not credible. 8 4. Lack of Objective Medical Evidence 9 The ALJ further found “the medical evidence of record does not support 10 finding more limiting symptoms than determined here.” Tr. 32-35. An ALJ may 11 not discredit a claimant’s pain testimony and deny benefits solely because the 12 degree of pain alleged is not supported by objective medical evidence. Rollins, 13 261 F.3d at 857; Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991); Fair, 14 885 F.2d at 601. However, the medical evidence is a relevant factor in determining 15 the severity of a claimant’s pain and its disabling effects. Rollins, 261 F.3d at 857; 16 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2); see also S.S.R. 96-7p.6 Here, the ALJ 17 18 6 S.S.R. 96-7p was superseded by S.S.R. 16-3p effective March 16, 2016. The new 19 ruling also provides that the consistency of a claimant’s statements with objective 20 medical evidence and other evidence is a factor in evaluating a claimant’s 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 27 1 set out, in detail, the medical evidence contradicting Plaintiff’s claims of disabling 2 shoulder impairment, low back pain, and hand and CTS-related symptoms. Tr. 323 34. 4 With respect to shoulder impairment, the ALJ noted Plaintiff experienced a 5 work injury that occurred well before alleged onset in 2009.7 Subsequently, 6 Plaintiff underwent shoulder surgeries to repair the injury. Tr. 32 (citing Tr. 528) 7 (In January 2005, treating physician Dr. Lynch noted Plaintiff “feels like she has 8 made excellent recovery [post surgery] in her left shoulder,” but her right shoulder 9 was beginning to bother her”); see also Tr. 238 (Labor and Industries Closing 10 Report dated October 20, 2011, lists three surgeries on each shoulder). The ALJ 11 found, for example, that Plaintiff improved after left shoulder surgery in July 2010 12 and right shoulder surgery in November 2010. Tr. 32-33. The ALJ relied on 13 several medical opinions when making this determination. First, the ALJ relied on 14 treating physician Dr. Lynch’s October 2011 RFC. Tr. 33 (citing Tr. 578); see also 15 Tr. 267, 280, 284 (On October 4, 2011, Dr. Lynch released Plaintiff to return to 16 17 symptoms. S.S.R. 16-3p at *6. Nonetheless, S.S.R. 16-3p was not effective at the 18 time of the ALJ’s decision and therefore does not apply in this case. 19 7 Plaintiff testified she filed a worker’s compensation claim based on this injury in 20 1999, and last reopened it in 2006. Tr. 32 (citing Tr. 71). 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 28 1 work). Dr. Lynch opined Plaintiff should lift no more than 25 pounds and never 2 lift above the shoulder. Tr. 33 (citing Tr. 578). The ALJ assessed a generally 3 consistent RFC. Tr. 30-31 (the ALJ included a more restrictive lifting limitation, 4 of ten pounds occasionally, and adopted Dr. Lynch’s restriction of no overhead 5 reaching). Next, the ALJ relied on a December 2011 IME which also indicated 6 greater functioning than alleged by Plaintiff. Tr. 33 (citing Tr. 596) (despite noted 7 “tenderness over the AC joints, [Plaintiff] had good strength of grasp and good 8 strength of wrist flexion/extension, radial/ulnar deviation, pronation, supination, 9 biceps, triceps, and abduction/adduction, as well as flexion/extension of the 10 shoulders. . . Moreover, there was full motion of the elbows, forearms, wrists, and 11 hands.”). Third, the ALJ relied on a June 2012 finding by treatment provider Art 12 Flores, PAC, that despite decreased range of motion in the shoulders bilaterally, 13 Plaintiff demonstrated normal strength. Tr. 33 (citing Tr. 736). This finding is 14 significant because July 2012 shoulder imaging showed moderate osteoarthritis of 15 the left AC joint, and the right was similar but with more advanced osteoarthritic 16 narrowing of the AC joint. Tr. 33 (citing Tr. 738). On exam, however, the ALJ 17 noted that Plaintiff demonstrated normal strength, Tr. 736, meaning any limitation 18 was not severe. Tr. 33. 19 Regarding objective evidence of back-related symptoms, the ALJ noted 20 Plaintiff has a history of chronic low back pain, but the clinical evidence does not 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 29 1 support greater limits than for sedentary to light work. Tr. 33 (citing Tr. 734) (in 2 June 2012, treatment provider Mr. Flores noted Plaintiff gave a history of chronic 3 low back pain). The ALJ relied on objective evidence, for example, lumbar spine 4 views in July 2012 that showed minimal endplate spurring at L2/3 and L3/4 with 5 preservation of disc heights with mild to moderate multilevel lumbar facet 6 arthropathy; significantly, overall degenerative changes were only slightly 7 progressed when compared with prior 2007 imaging. Tr. 33 (citing Tr. 738). 8 Next, the ALJ found, as another example, the record noted the lack of any gait 9 abnormalities. Tr. 33 (citing Tr. 595) (an IME in December 2011 noted normal 10 gait); (citing Tr. 736) (in June 2012, treatment provider Mr. Flores noted “gait 11 intact”); (citing Tr. 764) (In September 2012, Mr. Flores again noted Plaintiff’s 12 gait was normal). The ALJ further found, as another example, that December 2011 13 IME findings showed Plaintiff was able to stand on heels and toes without 14 difficulty, and there was no motor weakness of the lower extremities. Tr. 33 15 (citing Tr. 596). The ALJ went on to find, as another example, that treatment 16 provider Mr. Flores’ exam findings were largely benign. Tr. 33 (citing Tr. 735) (in 17 June 2012, Mr. Flores noted Plaintiff complained of pain, but lumbar range of 18 motion was full, and straight leg raising was negative in the supine position). 19 Moreover, the ALJ further found that during the period at issue, Plaintiff’s obesity 20 was of only mild severity with a BMI that reached 33, meaning obesity would not 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 30 1 have greatly aggravated Plaintiff’s low back symptoms. Tr. 33 (citing Tr. 1118) 2 (in April 2014 Mr. Flores recorded a BMI of 33.94); see also Tr. 735 (in June 3 2012, Mr. Flores noted Plaintiff’s BMI was 31.05); Tr. 466 (in July 2011, treating 4 physician Dr. Purdy noted Plaintiff’s BMI was 30.42). 5 With respect to carpal tunnel-related symptoms, the ALJ found the medical 6 evidence again did not support the alleged severity of Plaintiff’s complaints. Tr. 7 33. For example, the ALJ pointed out that Plaintiff testified that she dropped 8 everything she picked up. Tr. 33 (citing Tr. 77). However, the ALJ found this was 9 unsupported by an October 2013 nerve conduction study that showed only mild 10 bilateral CTS. Tr. 33 (citing Tr. 1125). The ALJ’s finding that Plaintiff’s claims 11 of disabling physical limitations are not supported by the objective medical 12 evidence, including the opinions of treating sources and IME physicians who 13 examined Plaintiff in December 2011, is supported by substantial evidence. 14 This reason, coupled with the other reasons cited by the ALJ, provided clear 15 and convincing reasons to discredit Plaintiff’s symptom claims. 16 C. RFC Finding 17 Plaintiff contends that the RFC is inadequate because it does not properly 18 account for the limitations assessed by testifying medical experts Dr. Jahnke and 19 Dr. Martin, and examining psychologist Dr. Arnold. ECF No. 14 at 13-14. In 20 support of her claim, Plaintiff contends the ALJ “ignored” her physical and mental 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 31 1 limitations that affect her ability to work, the effects of her pain from her physical 2 impairments, and “more importantly the limitations posed by upper extremities as 3 testified by Dr. Jahnke and her mental limitations.” ECF No. 14 at 13. In contrast, 4 the ALJ considered the assessed limitations and rejected them, which findings 5 Plaintiff failed to challenge. Plaintiff’s failure to challenge the findings waived the 6 issue. Campbell v. Burt, 141 F.3d 927, 931 (9th Cir. 1998) (holding that issues not 7 raised before the district court are waived on appeal). Because an ALJ is not 8 required to incorporate properly rejected limitations in an RFC, see Batson v. 9 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004), the Court finds 10 the record demonstrates that the ALJ’s RFC findings were adequately supported. 11 1. Lynne Jahnke, M.D. 12 Plaintiff contends the ALJ should have included upper extremity limitations 13 assessed by Dr. Jahnke, a testifying medical expert. ECF No. 14 at 13. As an 14 initial matter, Plaintiff has failed to articulate the specific limitations to which she 15 refers. Moreover, in contrast to Plaintiff’s assertion that the ALJ “ignored” Dr. 16 Jahnke’s assessed limitations, ECF No. 14 at 13, the ALJ identified and discussed 17 them. Tr. 34. The ALJ then adopted some, but not all, of Dr. Jahnke’s assessed 18 limitations in the RFC. Tr. 34. Specifically, the ALJ rejected Dr. Jahnke’s 19 postural and manipulative limits based on the lack of medical evidence supporting 20 strength deficits in the lower or upper extremities, the assessed limitations being 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 32 1 inconsistent with the medical records. Tr. 34. Plaintiff failed to challenge the 2 ALJ’s cited reasons for rejecting the medical testimony and any challenge is 3 waived. Campbell, 141 F.3d at 931. Because the ALJ’s unchallenged reason to 4 reject Dr. Jahnke’s limitations was proper, the ALJ was not required to include the 5 limitations in the RCF. See Batson, 359 F.3d at 1197 (ALJ not required to 6 incorporate opinion evidence permissibly discounted in the RFC). Having 7 permissibly discounted Dr. Jahnke’s assessed limitations, the ALJ was not required 8 to include them in the RFC. 9 10 2. Marian Martin, Ph.D. Plaintiff contends the ALJ should have included limitations assessed by Dr. 11 Martin, a testifying psychologist. ECF No. 14 at 13, 15 (citing Tr. 64). Plaintiff’s 12 failure to address the ALJ’s analysis of the medical evidence waives the issue. 13 Campbell, 141 F.3d at 931. Based on the Court’s independent review, the Court 14 finds the record demonstrates that the ALJ’s failure to include the assessed 15 limitation was adequately supported. Dr. Martin opined that Plaintiff has a mild to 16 moderate impairment in concentration, persistence, and pace. Tr. 64. The ALJ 17 omitted this limitation in the assessed RFC, Tr. 30-31 (no mental limitations 18 assessed), because the ALJ need only include in the hypothetical those limitations 19 that significantly limit a claimant’s ability to perform work. See Koehler v. Astrue, 20 283 F.App’x 443, 445 (9th Cir. 2008) (unpublished) (ALJ’s finding that claimant 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 33 1 lacked a severe mental impairment was proper even though claimant had a 2 “moderate” limitation in the “ability to respond to changes in the workplace 3 setting”); see also Linthicum v. Colvin, 2016 WL 5799696, at *3 (W.D. Wash. Oct. 4 5, 2016) (“[T]he Social Security Administration defines ‘moderate’ as ‘more than a 5 slight limitation in this area but the individual is still able to function 6 satisfactorily.’ ”) (citing Scherer-Huston v. Comm’r of Soc. Sec., No. 01:1:14-cv7 00688-HZ, 2015 WL 1757145, at *8 (D. Or. Apr. 16, 2015)). As noted, the ALJ 8 reasonably found Plaintiff’s mental conditions are not severe impairments because 9 they cause no more than minimal limitations in Plaintiff’s ability to perform work 10 activity. Tr. 28-30. Moreover, given the fact that Plaintiff is able to maintain 11 concentration, persistence and pace at a satisfactory level, omitting that moderate 12 limitation from the RFC was inconsequential to the ALJ’s ultimate nondisability 13 determination. An error is harmless “where it is inconsequential to the [ALJ’s] 14 ultimate nondisability determination.” Molina, 674 F.3d at 1115 (quotation and 15 citation omitted). Accordingly, the Court finds that if the ALJ did err by failing to 16 include the mild to moderate limitation, the error was harmless. 17 3. John Arnold, Ph.D. 18 Plaintiff contends the ALJ should have included limitations assessed by 19 examining psychologist Dr. Arnold. ECF No. 14 at 13-15 (citing Tr. 719-33). 20 Because Plaintiff failed to address the ALJ’s analysis of the medical evidence, the 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 34 1 issue is waived. Campbell, 141 F.3d at 931. Based on the Court’s independent 2 review, the Court finds the record demonstrates that the ALJ’s failure to include 3 Dr. Arnold’s assessed limitations was adequately supported. Dr. Arnold evaluated 4 Plaintiff in May 2012 and opined Plaintiff needed intensive mental health 5 treatment, prognosis was guarded, and symptoms would negatively impact overall 6 job performance. Tr. 720. The ALJ gave Dr. Arnold’s opinion little weight. Tr. 7 30. Specifically, the ALJ rejected Dr. Arnold’s assessment based on its 8 inconsistency with Plaintiff’s normal mental status exams, inconsistency with 9 Plaintiff’s reported activities, reliance on Plaintiff’s unreliable subjective 10 complaints, and testing that revealed Plaintiff may have over-reported 11 psychological and somatic dysfunction. Tr. 30. The cited reasons were adequately 12 supported and the ALJ properly rejected Dr. Arnold’s assessed limitations. An 13 ALJ is not required to incorporate properly rejected limitations in an RFC. Batson, 14 359 F.3d at 1197. Accordingly, because the ALJ permissibly discounted Dr. 15 Arnold’s assessed limitations, the Court finds the ALJ was not required to include 16 those limitations in the RFC. 17 D. Hypothetical Posed to Vocational Expert 18 Plaintiff contends the ALJ’s hypothetical was incomplete because it failed to 19 include all of Plaintiff’s limitations. ECF No. 14 at 14-15. The ALJ’s hypothetical 20 must be based on medical assumptions supported by substantial evidence in the 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 35 1 record that reflects all of the claimant’s limitations. Osenbrock v. Apfel, 240 F.3d 2 1157, 1165 (9th Cir. 2001). The hypothetical should be “accurate, detailed, and 3 supported by the medical record.” Tackett, 180 F.3d at 1101. In effect, Plaintiff 4 restates her arguments that the ALJ erroneously excluded evidence of Plaintiff’s 5 limitations. Because the ALJ’s assessment of Plaintiff’s testimony and the medical 6 evidence was supported by substantial evidence, her step five findings are free of 7 error. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008) 8 (challenge to ALJ’s step five findings was unavailing where it “simply restates 9 [claimant’s] argument that the ALJ’s RFC finding did not account for all her 10 limitations”). For reasons discussed throughout this decision, the ALJ’s 11 hypothetical to the vocational expert was based on the evidence and reasonably 12 reflects Plaintiff’s limitations. Thus, the ALJ’s findings are supported by 13 substantial evidence and are legally sufficient. 14 15 CONCLUSION After review, the Court finds that the ALJ’s decision is supported by 16 substantial evidence and free of harmful error. 17 IT IS ORDERED: 18 1. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is DENIED. 19 2. Defendant’s Motion for Summary Judgment, ECF No. 15, is 20 GRANTED. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 36 1 The District Court Executive is directed to file this Order, enter 2 JUDGMENT FOR THE DEFENDANT, provide copies to counsel, and CLOSE 3 the file. 4 5 6 DATED June 8, 2017. s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 37

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