Angela Blake-Norman v. Carolyn W. Colvin, No. 2:2013cv06456 - Document 23 (C.D. Cal. 2014)
Court Description: MEMORANDUM OPINION AND ORDER REVERSING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. Accordingly, IT IS HEREBY ORDERED that (1) the decision of the Commissioner is REVERSED; (2) Plaintiff's request for remand is GRANTED; and (3) this action is REMANDED for further proceedings consistent with this Memorandum Opinion. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on all parties or their counsel. (See Order for details) (bem)
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Angela Blake-Norman v. Carolyn W. Colvin Doc. 23 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 ANGELA BLAKE-NORMAN, 11 Plaintiff, 12 vs. 13 14 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 15 Defendant. 16 ) Case No. CV 13-6456-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) REVERSING COMMISSIONER ) ) ) ) ) ) ) 17 18 I. PROCEEDINGS 19 Plaintiff seeks review of the Commissioner’s final decision 20 denying her application for disability insurance benefits 21 (“DIB”). The parties consented to the jurisdiction of the 22 undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). This 23 matter is before the Court on the parties’ Joint Stipulation, 24 filed June 26, 2014, which the Court has taken under submission 25 without oral argument. For the reasons discussed below, the 26 Commissioner’s decision is reversed and this action is remanded 27 for further proceedings. 28 1 Dockets.Justia.com 1 II. BACKGROUND 2 On May 28, 2009, Plaintiff filed an application for DIB, 3 alleging that she had been disabled since January 1, 2008, 4 because of the following impairments: “[h]ard of hearing, 5 arthritis, shoulder, breathing problems, depression.” 6 36, 150.) (AR 135- She later added allegations of worsening hearing loss, 7 fibromyalgia, osteoporosis, and “severe” shoulder pain. 8 187.) (AR After Plaintiff’s application was denied, she requested a 9 hearing before an Administrative Law Judge. (AR 94.) A hearing 10 was held on January 6, 2011, at which Plaintiff, who was 11 represented by counsel, testified, as did a vocational expert. 12 (AR 50-81.) On July 15, 2011, the ALJ issued a written decision 13 finding Plaintiff not disabled. 14 (AR 28-49.) Plaintiff thereafter requested review of the ALJ’s decision 15 and submitted additional medical evidence. 16 757-877.) (AR 4, 26, 206-10, Meanwhile, on December 30, 2011, Plaintiff filed a 17 renewed application for benefits and was found to have been 18 disabled since December 30, 2011. (See AR 2.) On July 19, 2013, 19 the Appeals Council denied review of the July 15, 2011 decision. 20 (AR 1.) The council specified that neither “the additional 21 evidence” nor the fact that Plaintiff was “found to be under a 22 disability beginning December 30, 2011,” warranted any change in 23 the decision. (AR 2.) This action followed. 24 III. STANDARD OF REVIEW 25 Under 42 U.S.C. § 405(g), a district court may review the 26 Commissioner’s decision to deny benefits. The ALJ’s findings and 27 decision should be upheld if they are free of legal error and 28 supported by substantial evidence based on the record as a whole. 2 1 Id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 2 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence 3 means such evidence as a reasonable person might accept as 4 adequate to support a conclusion. Richardson, 402 U.S. at 401; 5 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It 6 is more than a scintilla but less than a preponderance. 7 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 8 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether 9 substantial evidence supports a finding, the reviewing court 10 “must review the administrative record as a whole, weighing both 11 the evidence that supports and the evidence that detracts from 12 the Commissioner’s conclusion.” 13 720 (9th Cir. 1996). Reddick v. Chater, 157 F.3d 715, If the evidence as a whole can reasonably 14 support either affirming or reversing, the reviewing court “may 15 not substitute its judgment” for the Commissioner’s. Id. at 720- 16 21. 17 IV. THE EVALUATION OF DISABILITY 18 People are “disabled” for purposes of receiving Social 19 Security benefits if they are unable to engage in any substantial 20 gainful activity owing to a physical or mental impairment that is 21 expected to result in death or which has lasted, or is expected 22 to last, for a continuous period of at least 12 months. 42 23 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 24 (9th Cir. 1992). 25 A. 26 An ALJ follows a five-step sequential evaluation process to The Five-Step Evaluation Process 27 assess whether someone is disabled. 20 C.F.R. § 404.1520(a)(4); 28 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as 3 1 amended Apr. 9, 1996). In the first step, the Commissioner must 2 determine whether the claimant is currently engaged in 3 substantial gainful activity; if so, the claimant is not disabled 4 and the claim must be denied. § 404.1520(a)(4)(i). If the 5 claimant is not engaged in substantial gainful activity, the 6 second step requires the Commissioner to determine whether the 7 claimant has a “severe” impairment or combination of impairments 8 significantly limiting her ability to do basic work activities; 9 if not, a finding of not disabled is made and the claim must be 10 denied. § 404.1520(a)(4)(ii). If the claimant has a “severe” 11 impairment or combination of impairments, the third step requires 12 the Commissioner to determine whether the impairment or 13 combination of impairments meets or equals an impairment in the 14 Listing of Impairments (“Listing”) set forth at 20 C.F.R., Part 15 404, Subpart P, Appendix 1; if so, disability is conclusively 16 presumed and benefits are awarded. 17 § 404.1520(a)(4)(iii). If the claimant’s impairment or combination of impairments 18 does not meet or equal one in the Listing, the fourth step 19 requires the Commissioner to determine whether the claimant has 20 sufficient residual functional capacity (“RFC”)1 to perform her 21 past work; if so, she is not disabled and the claim must be 22 denied. § 404.1520(a)(4)(iv). The claimant has the burden of 23 proving she is unable to perform past relevant work. 24 F.2d at 1257. Drouin, 966 If the claimant meets that burden, a prima facie 25 case of disability is established. Id. If that happens or if 26 27 28 1 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 404.1545; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 4 1 the claimant has no past relevant work, the Commissioner bears 2 the burden of establishing that the claimant is not disabled 3 because she can perform other substantial gainful work available 4 in the national economy. § 404.1520(a)(4)(v). That 5 determination comprises the fifth and final step in the 6 sequential analysis. § 404.1520; Lester, 81 F.3d at 828 n.5; 7 Drouin, 966 F.2d at 1257. 8 B. 9 At step one, the ALJ found that Plaintiff had not engaged in The ALJ’s Application of the Five-Step Process 10 substantial gainful activity since January 1, 2008, the alleged 11 onset date. (AR 33.) At step two, he concluded that Plaintiff 12 had severe impairments of “right cubital tunnel syndrome, status 13 post right cubital tunnel release,” “status post right rotator 14 cuff repair,” “status post right ulnar nerve decompression,” 15 “right upper extremity entrapment neuropathy,” “status post left 16 rotator cuff repair,” “bi-sensorineural hearing loss,” and 17 fibromyalgia. 18 not severe. (Id.) He found that Plaintiff’s depression was (AR 33-36.) At step three, the ALJ determined that 19 Plaintiff’s impairments did not meet or equal any of the 20 impairments in the Listing, including those in sections 1.00 21 (musculoskeletal impairments), 2.00 (hearing impairments), 11.00 22 (neurological impairments), and 14.00 (immune system 23 impairments). (AR 36-37.) At step four, the ALJ found that 24 Plaintiff had the RFC to perform light work with additional 25 limitations: 26 The claimant cannot climb ladders, ropes or scaffolds, 27 but she can occasionally climb ramps or stairs. 28 claimant can occasionally balance, stoop, kneel, crouch 5 The 1 or crawl. The claimant can occasionally push, pull, lift 2 or 3 bilaterally. The claimant can perform work that does not 4 require concentrated exposure to extreme cold or extreme 5 vibration, 6 unprotected heights or other high risk, hazardous or 7 unsafe conditions. 8 requiring fine hearing. 9 (AR 37.) reach overhead or any with the exposure to upper extremities, hazardous machinery, The claimant cannot perform work Based on the VE’s testimony, the ALJ concluded that 10 although Plaintiff could not perform her past work as a school 11 secretary, she had transferable skills that would enable her to 12 perform jobs that existed in significant numbers in the national 13 economy. (AR 42.) 14 was not disabled. The ALJ therefore concluded that Plaintiff (AR 43.) 15 V. DISCUSSION 16 Plaintiff contends that the ALJ erred in failing to find 17 that Plaintiff’s hearing loss met Listing 2.10, rejecting the 18 opinions of two treating physicians that Plaintiff was disabled 19 by chronic pain and other ailments, finding Plaintiff’s 20 depression to be nonsevere, and evaluating Plaintiff’s 21 credibility and subjective symptoms. Plaintiff further contends 22 that the Appeals Council erred in failing to consider additional 23 evidence from treating physician Ayal Willner concerning 24 Plaintiff’s hearing loss. (J. Stip. at 3.) For efficiency and 25 other reasons, the Court addresses Plaintiff’s contentions in an 26 order different from that in the Joint Stipulation. 27 28 6 1 A. 2 3 The ALJ Erred in Finding Plaintiff’s Depression Not to Be Severe, and Remand Is Necessary Plaintiff contends that the ALJ erred in finding that 4 although she “has a mentally determinable mood disorder that is 5 due to her medical condition resulting from her severe physical 6 impairments,” it was not severe. (AR 33; J. Stip. at 22-23, 25.) 7 The Commissioner appears to concede that the ALJ’s finding was 8 erroneous but contends that any error was harmless because the 9 ALJ considered Plaintiff’s impairments in assessing her RFC. (J. 10 Stip. at 24 (citing Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 11 2007) (finding step-two error harmless when ALJ considered 12 impairment at step four)).) 13 The step-two inquiry is “a de minimis screening device to 14 dispose of groundless claims.” 15 1290 (9th Cir. 1996). Smolen v. Chater, 80 F.3d 1273, The claimant has the burden to show that 16 she has one or more “severe” medically determinable impairments 17 that can be expected to result in death or last for a continuous 18 period of at least 12 months, as demonstrated by evidence in the 19 form of signs, symptoms, or laboratory findings. See Bowen v. 20 Yuckert, 482 U.S. 137, 146 n.5 (1987); §§ 404.1508, 21 404.1520(a)(4)(ii); Ukolov v. Barnhart, 420 F.3d 1002, 1004-05 22 (9th Cir. 2005). A medically determinable impairment is “severe” 23 if it “significantly limits [her] physical or mental ability to 24 do basic work activities.” § 404.1520(c); accord § 404.1521(a). 25 “An impairment or combination of impairments may be found not 26 severe only if the evidence establishes a slight abnormality that 27 has no more than a minimal effect on an individual’s ability to 28 work.” Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) 7 1 (citation and internal quotation marks omitted). 2 The medical evidence of record was sufficient to establish a 3 severe impairment under the “de minimis” threshold. It appears 4 that Plaintiff had received mental-health treatment for 5 depression since at least December 2009 (see AR 673), and as of 6 the time of the hearing, she continued to see a psychiatrist 7 weekly and psychologist monthly and take prescription mental8 health medications (AR 33-34; see AR 62, 205). She had received 9 in-hospital treatment for depression with psychotic features and 10 had a reported Global Assessment Functioning (“GAF”) score of 11 38.2 (AR 34.) Her treating psychiatrist, treating psychologist, 12 and examining psychologist agreed that Plaintiff suffered at 13 least “moderate” mental-health limitations. (See AR 556 14 (treating psychiatrist noting “marked” limitation in social 15 functioning; “extreme” limitations in daily living and 16 maintaining concentration, persistence, or pace; and four or more 17 episodes of decompensation in previous 12 months); AR 675 18 (treating psychologist estimating GAF scores in high 50s, 19 indicating moderate symptoms or impairment); AR 733-34 (examining 20 psychologist diagnosing depressive disorder with anxiety, 21 22 23 24 25 26 27 28 2 A GAF score of 31 to 40 indicates either some impairment in reality testing or communication or major impairment in several areas, such as work, school, family relations, judgment, thinking, or mood. See Diagnostic and Statistical Manual of Mental Disorders 34 (revised 4th ed. 2000). The Commissioner has declined to endorse GAF scores, Fed. Reg. 50764-65 (Aug. 21, 2000) (GAF score “does not have a direct correlation to the severity requirements in our mental disorders listings”), and the most recent edition of the DSM “dropped” the GAF scale, citing its lack of conceptual clarity and questionable psychological measurements in practice. Diagnostic and Statistical Manual of Mental Disorders 16 (5th ed. 2012). 8 1 intellectual impairment, possible personality disorder, and 2 moderate psychosocial stressors and estimating GAF of 60); but 3 see AR 424-25 (examining psychiatrist diagnosing mood disorder 4 but no significant limitations).) 5 Although the ALJ gave valid reasons for discounting some of 6 the evidence (see AR 33-36), Plaintiff presented adequate 7 evidence to establish a severe impairment at step two. Only 8 impairments “of a minimal nature which could never prevent a 9 person from working” are screened out at step two. SSR 85–28, 10 1985 WL 56856, at *2 (Jan. 1, 1985) (internal quotation marks 11 omitted). In this case, Plaintiff’s depression was found to be 12 at least “moderate” by treating and examining mental-health 13 practitioners, and the medical evidence does not establish a 14 duration of less than 12 months. Cf. Garcia v. Colvin, No. CV 15 13-8893-E, 2014 WL 3810382, at *5-6 (C.D. Cal. Aug. 1, 2014) 16 (remanding when ALJ found depression nonsevere despite medical 17 opinions that it was at least moderate); French v. Astrue, No. 18 EDCV 09-1489 SS, 2010 WL 2803965, at *6 (C.D. Cal. July 15, 2010) 19 (remanding for further proceedings when ALJ applied more than de 20 minimis test to impairments of depression and anxiety). The ALJ 21 himself relied on GAF scores indicating some mental-health 22 functioning limitations, before stating, somewhat 23 contradictorily, that he did not give them “great weight.” (See 24 AR 35.) 25 Although it is true that a step-two error can be harmless 26 when the ALJ accounts for resulting limitations later in the 27 sequential evaluation process, see Lewis, 498 F.3d at 911, here, 28 the ALJ does not appear to have done so. 9 He inquired at the 1 hearing whether Plaintiff continued to receive mental-health 2 treatment and how often, but he did not ask about her related 3 symptoms and limitations or how her depression affected her daily 4 functioning or would limit her ability to work. (See AR 62-63.) 5 Nor did the alternative hypotheticals the ALJ posed to the VE 6 contain any limitations attributable to her mental-health 7 impairment. (See AR 71-76.) And although he summarized in his 8 decision the evidence of mental-health impairment, he dismissed 9 treatment records and medical opinions suggesting a moderate to 10 severe impairment, including on erroneous grounds. (See, e.g., 11 AR 34-35 (dismissing in-hospital treatment for severe impairment, 12 opinion of treating psychiatrist, and limitations found by 13 examining psychologist in part because no evidence existed 14 limitations were expected to last 12 months despite evidence of 15 mental-health treatment and significant findings dating to 16 December 2009); id. (discounting opinion of treating physician 17 because based on only “monthly visits of 10 to 15 minutes” in 18 favor of opinions of nonexamining physician and physician who 19 examined Plaintiff only once).) Having decided that Plaintiff’s 20 depression was nonsevere, the ALJ made no mention of it at steps 21 three, four, or five, even when discussing the opinions of two 22 treating doctors that Plaintiff was disabled, noting limitations 23 caused by her depression. (See AR 36-41; see also AR 505-06, 24 508, 560-61, 565, 606-09.) 25 It is therefore unclear whether the step-two error was 26 harmless. See Robbins, 466 F.3d at 885 (noting that ALJ’s error 27 is harmless only when “inconsequential to the ultimate 28 nondisability determination”). Accordingly, remand is warranted 10 1 to enable consideration of whether Plaintiff’s mental impairment 2 imposes any limitations upon her ability to work. See Garcia, 3 2014 WL 3810382, at *6 (error in finding depression nonsevere was 4 not harmless when RFC and questions to VE assumed “no mental 5 limitations whatsoever”). 6 Plaintiff further contends that the ALJ erred in assessing 7 the opinions of treating doctors Eing-Min Chang and Andre 8 Babajanians that she suffered disabling impairments. (J. Stip. 9 at 11-14.) 10 On December 10, 2009, Dr. Chang noted diagnoses of 11 rheumatoid arthritis, osteoarthritis, hearing loss, hypertension, 12 fibromyalgia, and depression. (AR 505.) Dr. Chang opined that 13 Plaintiff was “disabled at this time” and suffered slight to 14 moderate issues with memory and concentration because of her 15 medications and depression. (AR 506, 508.) On April 8, 2010, 16 Dr. Chang signed a letter certifying that Plaintiff had been 17 diagnosed with fibromyalgia, osteoporosis, rheumatoid arthritis, 18 major depression, high blood pressure, and hearing loss. 19 565.) She opined that Plaintiff had been “permanently disabled” 20 since January 2007. 21 (AR (Id.) On July 27, 2009, Dr. Babajanians evaluated Plaintiff for 22 chronic musculoskeletal pain and noted “multiple tender points,” 23 joint swelling, and limited range of motion and pain in both 24 shoulders. (AR 466, 474.) He opined that she likely suffered 25 from fibromyalgia, allodynia,3 arthritis, gastropathy, and a 26 27 28 3 Allodynia describes pain resulting from a stimulus that is not normally painful. See Allodynia: When Touch Hurts But Shouldn’t, Am. Headache Soc’y, http://www.achenet.org/ 11 1 left-shoulder rotator-cuff tear and ordered additional testing. 2 (AR 474.) On September 12, 2009, Dr. Babajanians again found 3 multiple tender points and opined that she suffered from 4 fibromyalgia, hearing loss, and osteopenia. (AR 465.) On 5 December 2, 2009, he certified that she suffered from 6 fibromyalgia, rheumatoid arthritis, polyarthritis, and lower-back 7 pain and required a cane. (AR 559.) On May 24, 2010, he 8 completed a Fibromyalgia Residual Functional Capacity 9 Questionnaire, indicating that his diagnosis of fibromyalgia was 10 based upon Plaintiff’s “generalized pain and multiple tender 11 points.” (AR 560, 563.) He noted several other symptoms, 12 including “constant, severe” bilateral pain in her spine, chest, 13 shoulders, arms, hands, hips, legs, ankles, and feet. 14 61.) (AR 560- He also noted impairments of depression, osteopenia, 15 hypertension, and valvular heart disease. (AR 560.) 16 that Plaintiff was incapable of even low-stress jobs. He opined (AR 561.) 17 Dr. Babajanians again noted Plaintiff’s depression in late-2009 18 and early-2010 treatment notes. 19 (AR 606-08.) Among the reasons the ALJ gave for discounting Drs. Chang’s 20 and Babajanians’s findings was that they were “not consistent 21 with” and “not supported by” the record. (AR 38.) It is unclear 22 whether or to what extent the ALJ’s assessment of their opinions 23 turned on their inclusion of depression among the impairments 24 that would limit Plaintiff’s ability to work. Accordingly, 25 remand is further warranted for reconsideration of the opinions 26 of Drs. Chang and Babajanians in light of the severity of 27 resources/allodynia_when_touch_hurts_but_shouldnt/ (last visited 28 Nov. 14, 2014). 12 1 Plaintiff’s depression. The ALJ may at that time reassess the 2 doctors’ other findings and conclusions as well. 3 B. Substantial Evidence Supports the ALJ’s Finding That 4 Plaintiff’s Hearing Loss Did Not Meet a Listing 5 Plaintiff contends that the ALJ erred in failing to find 6 that her hearing loss met Listing 2.10. For the reasons 7 explained below, he did not. 8 9 1. Applicable law At step three of the sequential evaluation process, the ALJ 10 must evaluate the claimant’s impairments to see if they meet or 11 medically equal those in the Listings. See § 404.1520(d); 12 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). Listed 13 impairments are those that are “so severe that they are 14 irrebuttably presumed disabling, without any specific finding as 15 to the claimant’s ability to perform his past relevant work or 16 any other jobs.” 17 Lester, 81 F.3d at 828. The claimant has the initial burden of proving that an 18 impairment meets or equals a Listing. 19 493 U.S. 521, 530-33 (1990). See Sullivan v. Zebley, “To meet a listed impairment, a 20 claimant must establish that he or she meets each characteristic 21 of a listed impairment relevant to his or her claim.” 22 180 F.3d at 1099. Tackett, “To equal a listed impairment, a claimant must 23 establish symptoms, signs and laboratory findings ‘at least equal 24 in severity and duration’ to the characteristics of a relevant 25 listed impairment, or, if a claimant’s impairment is not listed, 26 then to the listed impairment ‘most like’ the claimant’s 27 impairment.” Id. (citing § 404.1526). Medical equivalence, 28 moreover, “must be based on medical findings”; “[a] generalized 13 1 assertion of functional problems is not enough to establish 2 disability at step three.” 3 Id. at 1100 (citing § 404.1526). An ALJ “must evaluate the relevant evidence before 4 concluding that a claimant’s impairments do not meet or equal a 5 listed impairment.” 6 2001). Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. The ALJ need not, however, “state why a claimant failed 7 to satisfy every different section of the listing of 8 impairments.” Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th 9 Cir. 1990) (finding that ALJ did not err in failing to state what 10 evidence supported conclusion that, or discuss why, claimant’s 11 impairments did not satisfy Listing). Moreover, the ALJ “is not 12 required to discuss the combined effects of a claimant’s 13 impairments or compare them to any listing in an equivalency 14 determination, unless the claimant presents evidence in an effort 15 to establish equivalence.” Burch v. Barnhart, 400 F.3d 676, 683 16 (9th Cir. 2005) (citing Lewis, 236 F.3d at 514). 17 An ALJ’s decision that a plaintiff did not meet a Listing 18 must be upheld if it was supported by “substantial evidence.” 19 See Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th 20 Cir. 2006). Substantial evidence is “more than a mere scintilla 21 but less than a preponderance; it is such relevant evidence as a 22 reasonable mind might accept as adequate to support a 23 conclusion.” 24 1997). Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. When evidence is susceptible to more than one rational 25 interpretation, the Court must uphold the ALJ’s conclusion as 26 long as substantial evidence supported it. 27 28 2. Id. Relevant facts A January 22, 2007 hearing test showed that Plaintiff 14 1 suffered moderate to severe sensorineural hearing loss, with 2 speech-reception thresholds of 50 decibels (dB) in both ears. 3 (AR 419.) Plaintiff had “excellent” word recognition “at 4 elevated levels,” and a new hearing aid was recommended. 5 The test results were deemed to be of “good” reliability. 6 (Id.) (Id.) On May 28, 2009, an agency employee met with Plaintiff in 7 person regarding her claim and reported that she was “hard of 8 hearing” and that the employee “repeated questions and spoke in a 9 loud tone.” 10 (AR 164-65.) On June 2, 2009, Plaintiff reported to cardiologist Joseph 11 Scwhartz that her hearing level “waxes and wanes,” leading him to 12 suspect an association between her hearing loss and 13 rheumatological issues. 14 (AR 410.) On June 8, 2009, Plaintiff reported that she “can’t hear” 15 and that her hearing loss limited her social activities. (See AR 16 167, 171-72 (noting that she tended to stay home and tried to 17 read lips when watching TV or socializing), 174.) The same day, 18 Plaintiff’s daughter reported that Plaintiff’s neighbors and 19 family had stopped talking to and calling her because of her 20 hearing loss, Plaintiff followed spoken instructions “[n]ot well 21 at all because she can’t hear,” and she required the speaker to 22 “keep repeating” the instructions. 23 (AR 180.) On July 7, 2009, testing showed Plaintiff capable of no 24 speech discrimination at 95 dB in either ear. (AR 621.) The 25 examiner reported air-conduction thresholds of approximately 70 26 dB and bone-conduction thresholds between approximately 90 and 27 120 dB in both ears. (Id.) The same day, Dr. Ayal Willner 28 recommended, based on that test result and Plaintiff’s report 15 1 that hearing aids did not help, that she be referred for a 2 cochlear implant. 3 (AR 614.) On July 13, 2009, testing showed that Plaintiff suffered 4 “moderate to severe sensorineural [hearing] loss bilaterally” 5 that “impacts daily communication & functioning.” (AR 414, 418.) 6 Plaintiff demonstrated speech-reception thresholds of 65 dB and 7 60 dB in her right and left ears, respectively. (AR 418.) Her 8 speech discrimination was “significantly impaired” at 20% for 9 both ears, but her hearing was improved with a hearing aid. 10 414, 418.) 11 (AR 418.) (AR The results were deemed to be of “fair” reliability. Plaintiff was recommended referral to an 12 otolaryngologist and use of binaural amplification hearing aids. 13 (Id.) 14 On July 31, 2009, examining psychiatrist Sohini Parikh 15 reported that Plaintiff was “hearing impaired in both ears.” 16 420.) (AR Dr. Parihk “had to speak somewhat louder, but we were able 17 to communicate for the purposes of this evaluation.” (Id.) Dr. 18 Parikh reported that Plaintiff got along well with family 19 members, maintained close friendships, and was able to focus her 20 attention during the examination and follow simple oral 21 instructions. 22 (AR 422.) On August 4, 2009, examining internist Soheila Benrazavi 23 deduced that Plaintiff was hard of hearing because “I have to 24 raise my voice somewhat and she looks at my mouth for lip 25 reading.” (AR 428.) Dr. Benrazavi noted that Plaintiff appeared 26 able to hear “a normal level of conversation” at times, perhaps 27 because the doctor was standing near Plaintiff’s right ear. 28 431.) (AR Dr. Benrazavi found that Plaintiff had no communicative 16 1 limitations. 2 (AR 432.) On August 31, 2009, Plaintiff was again seen by Dr. Willner, 3 who found her to be “[e]ssentially unchanged” and again referred 4 her for consideration for a cochlear implant. 5 (AR 613.) On October 6, 2009, Plaintiff demonstrated speech-reception 6 thresholds of 80 dB in each ear and speech discrimination of 84% 7 and 80% in her right and left ear, respectively. (AR 476.) With 8 hearing aids, Plaintiff’s speech-reception threshold improved to 9 40 dB. (Id.) The examiner reported “moderately severe to severe 10 sensorineural hearing loss” with “good word discrimination.” 11 (Id.) Because hearing aids provided “speech reception threshold 12 in the mild range with good word discrimination,” the examiner 13 recommended that Plaintiff use aids daily. 14 (Id.) On November 18, 2010, Plaintiff demonstrated no speech 15 discrimination at 95 dB. (AR 637.) The same day, Dr. Willner 16 reported that Plaintiff suffered inner-ear nerve damage and that 17 her sensorineural hearing loss “causes miscommunication and 18 inability to concentrate as well as difficulty communicating.” 19 (AR 634-35.) He opined that Plaintiff would sometimes need 20 unscheduled breaks in an eight-hour workday but did not indicate 21 that she would be absent from work because of her hearing 22 impairment. 23 (AR 635.) He recommended a cochlear implant. (Id.) Plaintiff testified at the January 6, 2011 hearing that 24 “[h]earing aids don’t work” but that she would have a 25 consultation on a cochlear implant that month. (AR 53-54.) None 26 of the additional evidence later submitted to the Appeals Council 27 indicated that she had in fact done so. (See generally AR 4, 28 206-10, 757-877; see also J. Stip. Ex. 1.) 17 1 2 3. Analysis To meet Listing 2.10, an individual with hearing loss not 3 treated with cochlear implantation must show either (A) “[a]n 4 average air conduction hearing threshold of 90 decibels or 5 greater in the better ear and an average bone conduction hearing 6 threshold of 60 decibels or greater in the better ear,” or (B) 7 “[a] word recognition score of 40 percent or less in the better 8 ear determined using a standardized list of phonetically balanced 9 monosyllabic words.” 10 § 2.10. 20 C.F.R. pt. 404, subpt. P, app. 1, Plaintiff contends that Dr. Willner’s findings on July 11 7, 2009, November 18, 2010, and September 21, 2011, that 12 Plaintiff had no speech discrimination bilaterally met Listing 13 2.10(B).4 (J. Stip. at 4.) She further contends that the July 14 13, 2009 finding of 20% speech discrimination also met Listing 15 2.10(B). 16 (Id.) As an initial matter, Plaintiff does not appear to have 17 requested that the ALJ consider Listing 2.10. Indeed, even when 18 presenting additional limitations for consideration by the VE, 19 Plaintiff’s counsel did not propose hearing restrictions beyond 20 those in the ALJ’s hypothetical. (See AR 78-79.) Thus, even had 21 the ALJ failed to consider whether Plaintiff’s hearing impairment 22 met a Listing, such failure would not have constituted reversible 23 error. See Burch, 400 F.3d at 683; Lewis, 236 F.3d at 514 24 (finding ALJ’s failure to consider equivalence not reversible 25 error when claimant did not offer any theory as to how his 26 4 The September 21, 2011 test results were not before the 27 ALJ, whose decision was issued two months earlier, and for the these results do not 28 reasons stated below,infra Section V.B.4.) warrant remand for his consideration. (See 18 1 impairments combined to equal Listing). The ALJ did, however, 2 consider Listings included in Section 2.00 (hearing impairments), 3 and substantial evidence supports his finding that Plaintiff did 4 not establish that her hearing impairment met or equaled a 5 Listing. 6 (AR 36-37.) The ALJ found that although medical and other evidence 7 showed that Plaintiff had difficulty with speech discrimination 8 at certain volumes, her speech discrimination improved both at 9 elevated volumes and when she used hearing aids. (AR 41.) He 10 noted that a January 22, 2007 hearing test – admittedly before 11 the alleged onset date – showed “excellent” word recognition at 12 elevated volumes (AR 419), and that although the July 13, 2009 13 examiner noted 20% speech discrimination (AR 414, 418), an 14 October 6, 2009 report indicated no speech deficit and that 15 hearing aids provided good word discrimination (AR 476). 16 41.) (AR Indeed, although testing performed in Dr. Willner’s office 17 suggested that Plaintiff’s capacity for speech discrimination was 18 significantly impaired (see AR 621 (July 7, 2009 testing showing 19 air-conduction thresholds between 90 and 110 dB, bone-conduction 20 thresholds of approximately 70 dB, and no speech discrimination 21 at 95 dB in either ear); AR 637 (Nov. 18, 2010 testing showing 22 air-conduction thresholds between 80 and 100 dB and no speech 23 discrimination at 95 dB)), other auditory testing showed that she 24 retained a capacity for speech discrimination at elevated levels 25 and when using hearing aids (see AR 419 (Jan. 22, 2007 test 26 showing moderate to severe sensorineural hearing loss, speech27 reception thresholds of 50 dB in both ears, and “excellent” word 28 recognition “at elevated levels”); AR 414, 418 (July 13, 2009 19 1 testing showing speech-reception thresholds of 65 dB and 60 dB in 2 right and left ears, speech discrimination “significantly 3 impaired” at 20% for both ears, and hearing improved by hearing 4 aids); AR 476 (Oct. 6, 2009 testing demonstrating speech5 reception thresholds of 80 dB in each ear, speech discrimination 6 of 84% and 80% in right and left ears, respectively, and speech7 reception threshold of 40 dB with hearing aid, which examiner 8 characterized as “good word discrimination”)). 9 Such variation in the results of Plaintiff’s hearing tests 10 and the findings of her auditory examiners, some based on roughly 11 contemporaneous examinations (see AR 414, 419, 476, 621), was a 12 valid and reasonable basis to question the accuracy of test 13 results indicating a total or near-total lack of speech 14 discrimination – particularly given the subjective nature of an 15 audiogram5 and the evidence that Plaintiff exaggerated her 16 symptoms in reports to other practitioners (see infra Section 17 V.C); see also Booz v. Sec’y of Health & Human Servs., 734 F.2d 18 1378, 1380 (9th Cir. 1984) (“It is the ALJ’s function to resolve 19 conflicts in the evidence.”). 20 Notably, Plaintiff did not proffer an opinion from any of 21 the physicians who performed these auditory tests that her 22 impairment met a Listing, or even confirming that the findings of 23 24 25 26 27 28 5 See L. Bishara et al., Correlations Between Audiogram and Objective Hearing Tests in Sensorineural Hearing Loss, Int’l Tinnitus J. 107 (1999) (“Owing to its subjective nature, behavioral pure-tone audiometry often is an unreliable testing method in uncooperative subjects (e.g., children, malingerers), and assessing the true hearing threshold becomes difficult.”), available at: http://www.tinnitusjournal.com/imagebank/pdf/ v5n2a05.pdf. 20 1 zero and 20% speech discrimination were “determined using a 2 standardized list of phonetically balanced monosyllabic words.” 3 20 C.F.R. pt. 404, subpt. P, app. 1, § 2.10(B); see Laibach v. 4 Astrue, No. ED CV 07-1400-OP, 2009 WL 650606, at *3 (C.D. Cal. 5 Mar. 5, 2009) (noting that “audiograms are not self-explanatory” 6 but rather require findings discussing their results). As the 7 ALJ noted, although the examiner whose testing found only 20% 8 speech discrimination opined that Plaintiff’s impairment “impacts 9 daily communication & functioning” (AR 414), she did not quantify 10 the impact (AR 41). Moreover, the examiner’s indication of only 11 “fair” reliability of the test results and recommendation of 12 further medical evaluation, clearance for hearing aids, and 13 annual hearing exams did not suggest a conclusive finding of 14 disabling hearing loss. (AR 418.) Similarly, upon Plaintiff’s 15 initial evaluation by Dr. Willner’s office, the finding of no 16 speech discrimination was accompanied by a recommendation that 17 Plaintiff consider hearing aids (see AR 621), which Dr. Willner 18 appears to have amended based only on Plaintiff’s report that 19 hearing aids did not help (AR 614) – which was inconsistent with 20 the findings of some hearing examiners (see AR 414, 476) and 21 further undermined by the ALJ’s finding that Plaintiff was not 22 entirely credible (see infra Section V.C); Bray v. Comm’r of Soc. 23 Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (reasonable to 24 discount physician’s recommendation based on Plaintiff’s 25 subjective characterization of symptoms when ALJ has determined 26 Plaintiff’s allegations are not entirely credible). Thus, the 27 interpretation of Plaintiff’s test results is not so 28 straightforward as she suggests. 21 Moreover, as the ALJ noted, the 1 record contains evidence that Plaintiff was able to hear better 2 than her more extreme test results suggested. See 20 C.F.R. pt. 3 404, subpt. P, app. 1, § 2.00(B)(1)(a) (“We will consider your 4 test scores together with any other relevant information we have 5 about your hearing, including information from outside of the 6 test setting.”). 7 The ALJ noted inconsistencies between Plaintiff’s and her 8 daughter’s reports of Plaintiff’s hearing difficulties and the 9 reports of agency and medical examiners that Plaintiff was able 10 to hear and understand them when they spoke at higher volumes. 11 (AR 41.) For instance, Plaintiff’s daughter reported that 12 hearing loss limited Plaintiff’s social life and that she 13 followed spoken instructions “[n]ot well at all because she can’t 14 hear” and required the speaker to “keep repeating” the 15 instructions. (AR 180; see also AR 66 (Plaintiff testifying that 16 she was unable to hear siren when driving); AR 171-72 (Plaintiff 17 stating that she tried to read lips when watching TV or 18 socializing).) Agency and medical examiners, however, were 19 reportedly able to converse with Plaintiff effectively by 20 speaking at elevated volumes. (See AR 164-65 (on May 28, 2009, 21 agency employee reported that Plaintiff was “hard of hearing” and 22 that employee thus “repeated questions and spoke in a loud 23 tone”); AR 420, 422 (on July 31, 2009, examining psychiatrist 24 reported that Plaintiff was “hearing impaired in both ears,” that 25 doctor “had to speak somewhat louder, but we were able to 26 communicate for the purposes of this evaluation,” and that 27 Plaintiff was able to follow simple oral instructions); AR 428, 28 431-32 (on Aug. 4, 2009, examining internist deduced that 22 1 Plaintiff was hard of hearing because “I have to raise my voice 2 somewhat and she looks at my mouth for lip reading,” noting that 3 Plaintiff appeared able to hear “a normal level of conversation” 4 at times, perhaps because the doctor was standing near 5 Plaintiff’s right ear, and finding that Plaintiff had no 6 communicative limitations); see also AR 410 (on June 2, 2009, 7 Plaintiff reported to cardiologist that her hearing level “waxes 8 and wanes”).) Moreover, the ALJ himself interviewed Plaintiff at 9 the January 6, 2011 hearing, at which Plaintiff responded 10 appropriately to most questions, requesting that the ALJ repeat 11 himself only occasionally. (See AR 52-59, 62-70.) The ALJ thus 12 found that Plaintiff suffered from a severe hearing impairment 13 but that her impairment did not preclude conversation at an 14 elevated volume or with hearing aids. 15 (AR 41.) Although Plaintiff reported that hearing aids did not help 16 her (see, e.g., AR 53-54, 614; J. Stip. Ex. 1 at 1), other 17 evidence demonstrated that they did (see AR 414, 476, 621). 18 Moreover, the ALJ noted that she had not pursued a possible 19 cochlear implant with urgency. (AR 41.) Dr. Willner referred 20 Plaintiff for an implant consultation in July and August 2009 (AR 21 613-14) and continued to recommend an implant in November 2010 22 (see AR 635), but as of the January 6, 2011 hearing, Plaintiff 23 had not obtained an implant or determined, based on consultation 24 with a specialist, that it was not likely to help or would be too 25 invasive (see AR 53, 55 (Plaintiff testifying that she had “more” 26 27 28 23 1 consultation scheduled)).6 The ALJ thus found that Plaintiff’s 2 lack of urgency in investigating the recommended treatment for 3 her hearing loss indicated that her hearing impairment was not as 4 significant as alleged. (AR 41); see Tommasetti v. Astrue, 533 5 F.3d 1035, 1039 (9th Cir. 2008) (ALJ may discount allegations of 6 disabling impairment in light of “unexplained or inadequately 7 explained failure to seek treatment or to follow a prescribed 8 course of treatment”). 9 The ALJ’s determination that Plaintiff failed to meet her 10 burden to show an impairment that met or equaled Listing 2.10(B) 11 was thus supported by substantial evidence. 12 F.3d at 980. 13 4. 14 15 See Sandgathe, 108 Remand is not warranted on this basis. The additional evidence regarding Plaintiff’s hearing impairment does not warrant remand Plaintiff further contends that “[t]he Appeals Council 16 committed reversible error in failing to consider new and 17 material evidence” regarding her hearing impairment that she 18 submitted with her request for review. (J. Stip. at 32.) 19 Specifically, Plaintiff’s counsel indicated in a February 29, 20 2012 letter to the Appeals Council that she was enclosing 21 additional exhibits, including “[a] complete otologic exam and 22 audiometric testing performed by Ayal Willner, M.D., dated 23 September 27, 2011,” and an updated medication list. (AR 206; 24 see J. Stip. Ex. 1 (Sept. 27, 2011 Willner letter and Sept. 21, 25 2011 hearing-test results)). Although the Appeals Council noted 26 6 The ALJ stated that there was no indication that Plaintiff 27 had obtained a cochlear implant “nearly two years later,” received 28 presumably meaning that he haddecision. no updated records as of the time of his July 15, 2011 (AR 41.) 24 1 its receipt and inclusion in the record of counsel’s letter and 2 older medical records from NSR Medical Group (AR 4-5), the 3 council did not indicate receipt or consideration of the 4 September 2011 materials described in counsel’s letter, and 5 neither of those documents appears in the record. An updated 6 medication list was added to the record; it immediately precedes 7 counsel’s letter but is numbered as a separate exhibit. (See AR 8 205.) 9 10 a. Applicable law The Commissioner’s regulations permit claimants to submit 11 new and material evidence to the Appeals Council and require the 12 council to consider that evidence in determining whether to 13 review the ALJ’s decision. See Brewes v. Comm’r of Soc. Sec. 14 Admin., 682 F.3d 1157, 1162 (9th Cir. 2012). “If new and 15 material evidence is submitted, the Appeals Council shall 16 consider the additional evidence only where it relates to the 17 period on or before the date of the administrative law judge 18 hearing decision.” See § 404.970(b); Brewes, 682 F.3d at 1162 & 19 n.3; Bates v. Sullivan, 894 F.2d 1059, 1064 (9th Cir. 1990). The 20 Appeals Council “will grant the request for review if it finds 21 that the [ALJ’s] action, findings, or conclusion is contrary to 22 the weight of the evidence currently of record.” Brewes, 682 23 F.3d at 1162 (alteration in original and internal quotation marks 24 omitted) (citing § 404.970(b)). 25 This Court “[does] not have jurisdiction to review a 26 decision of the Appeals Council denying a request for review of 27 an ALJ’s decision, because the Appeals Council decision is a non28 final agency action.” Id. at 1161. 25 When, however, the Appeals 1 Council fails to consider new and material evidence as required, 2 remand to the ALJ is appropriate so that he can reconsider his 3 decision in light of the additional evidence. Taylor v. Comm’r 4 of Soc. Sec. Admin., 659 F.3d 1228, 1233 (9th Cir. 2011); see 5 also Lamp v. Astrue, 531 F.3d 629, 633 (9th Cir. 2008). To 6 justify remand, a claimant must show that the evidence is both 7 new and material to determining her disability and that she had 8 good cause for having failed to produce that evidence earlier. 9 See 42 U.S.C. § 405(g); Mayes v. Massanari, 276 F.3d 453, 462 10 (9th Cir. 2001). “New evidence is material if it ‘bear[s] 11 directly and substantially on the matter in dispute’ and if there 12 is a ‘reasonabl[e] possibility that the new evidence would have 13 changed the outcome of the . . . determination.’” Bruton v. 14 Massanari, 268 F.3d 824, 827 (9th Cir. 2001) (as amended) 15 (quoting Booz, 734 F.2d at 1380). 16 17 b. Analysis The Appeals Council does not appear to have considered the 18 September 2011 Willner materials. It is possible, as the 19 Commissioner suggests (J. Stip. at 33), that the council excluded 20 the documents from review because they postdated the ALJ’s July 21 15, 2011 decision by two months. See § 404.970(b). Given that 22 the materials were neither added to the record nor returned to 23 Plaintiff for use in a future application, however, it is equally 24 likely that they were overlooked or that Plaintiff’s counsel 25 failed to enclose them.7 Whether intentional or not, the 26 7 The Commissioner explains that when the Appeals Council 27 deems additional evidence not relevant to the time period under 28 consideration, it generally returns the materials to the claimant for use in a future application. (J. Stip. at 35 n.7.) 26 1 apparent exclusion of the Willner materials from the council’s 2 review does not warrant remand. 3 The additional materials do not offer “new” evidence 4 regarding the severity of Plaintiff’s impairment during the 5 relevant period. The September 21, 2011 hearing test postdates 6 the ALJ’s decision, so it does not “relate[] to the period on or 7 before the date of the administrative law judge hearing 8 decision.” § 404.970(b). The test also is not “new” evidence 9 because its results largely confirm those reported by Dr. 10 Willner’s office following two other auditory tests, both of 11 which were included in the record. (Compare J. Stip. Ex. 1 with 12 AR 621, 637; see also J. Stip. Ex. 1 at 1 (noting that 2011 13 testing showed slight improvement in bone- and air-conduction 14 thresholds over 2009 testing)); see Muro v. Astrue, No. EDCV 15 12-0058-DTB, 2013 WL 327468, at *3 (C.D. Cal. Jan. 29, 2013) 16 (noting that “to merit remand for new and material evidence,” 17 evidence must be “new, and not merely cumulative”). The 18 September 27, 2011 letter suffers from the same defects as the 19 test results. Although Dr. Willner describes the results of 20 Plaintiff’s July 7, 2009 audiogram, which was performed during 21 the relevant period, he does not opine upon the reliability of 22 her test results or the impact of Plaintiff’s hearing loss on her 23 functioning and thus offers no additional insight beyond the 24 information in the record. 25 The September 2011 documents also are not “material” because 26 there is not a “reasonable possibility” that they would have 27 altered the ALJ’s decision. See Bruton, 268 F.3d at 827. 28 discussed above (see supra Section V.B), the ALJ based his 27 As 1 finding that Plaintiff’s hearing loss was severe but not 2 disabling on the varying evidence concerning the degree of her 3 impairment. The record before the ALJ contained several hearing 4 tests – among them the tests performed in Dr. Willner’s office in 5 2009 and 2010 – as well as informal assessments of Plaintiff’s 6 capacity for conversation. Although all of the evidence showed 7 that Plaintiff suffered a hearing impairment, some auditory 8 testing showed that she retained a capacity for speech 9 discrimination at elevated levels and when using a hearing aid. 10 (See AR 414, 418, 419, 476.) Similarly, agency and medical 11 examiners were reportedly able to converse with Plaintiff 12 effectively by speaking at elevated volumes, and the ALJ appeared 13 able to question Plaintiff effectively by addressing her at an 14 elevated volume. (See AR 164-65, 420, 422, 428, 431-32; see 15 generally 52-59, 62-70 (hearing transcript in which Plaintiff 16 sought only occasional clarification of questions).) Although 17 Dr. Willner’s evidence indicated that Plaintiff’s capacity for 18 speech discrimination was more significantly impaired (see AR 19 613, 614, 634-35, 637 (test results and findings of Dr. Willner); 20 see also AR 66 (Plaintiff testifying that she was unable to hear 21 siren when driving)), the ALJ noted both Plaintiff’s testimony 22 and Dr. Willner’s findings and reasonably found that the record 23 as a whole failed to establish a disabling hearing impairment 24 (see AR 41). 25 Because the September 2011 testing does not relate to the 26 relevant period and the letter was largely cumulative and thus 27 not reasonably likely to have altered the ALJ’s determination, 28 28 1 remand is not warranted.8 2 C. 3 4 Any Error in Assessing Plaintiff’s Credibility Was Harmless Plaintiff contends that the ALJ failed to provide legally 5 sufficient reasons for rejecting Plaintiff’s testimony. 6 Stip. at 25-27, 31-32.) (J. In fact, the ALJ cited clear and 7 convincing reasons for discounting Plaintiff’s statements even 8 though his finding of malingering relieved him of the burden of 9 doing so. 10 11 1. Applicable law An ALJ’s assessment of symptom severity and claimant 12 credibility is entitled to “great weight.” See Weetman v. 13 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 14 F.2d 528, 531 (9th Cir. 1986). “[T]he ALJ is not required to 15 believe every allegation of disabling pain, or else disability 16 benefits would be available for the asking, a result plainly 17 contrary to 42 U.S.C. § 423(d)(5)(A).” Molina v. Astrue, 674 18 F.3d 1104, 1112 (9th Cir. 2012) (internal quotation marks 19 omitted). 20 In evaluating a claimant’s subjective symptom testimony, the 21 ALJ engages in a two-step analysis. 22 at 1035-36. See Lingenfelter, 504 F.3d “First, the ALJ must determine whether the claimant 23 has presented objective medical evidence of an underlying 24 impairment [that] could reasonably be expected to produce the 25 pain or other symptoms alleged.” Id. at 1036 (internal quotation 26 27 28 8 Because the September 2011 documents are neither new nor material, the Court does not address the existence of good cause for Plaintiff’s failure to submit them earlier. (See J. Stip. at 34 n.6 (citing Mayes, 276 F.3d at 462).) 29 1 marks omitted). If such objective medical evidence exists, the 2 ALJ may not reject a claimant’s testimony “simply because there 3 is no showing that the impairment can reasonably produce the 4 degree of symptom alleged.” 5 original). Smolen, 80 F.3d at 1282 (emphasis in When the ALJ finds a claimant’s subjective complaints 6 not credible, the ALJ must make specific findings that support 7 the conclusion. See Berry v. Astrue, 622 F.3d 1228, 1234 (9th 8 Cir. 2010). 9 Absent affirmative evidence of malingering, those findings 10 must provide “clear and convincing” reasons for rejecting the 11 claimant’s testimony. Lester, 81 F.3d at 834. If the ALJ’s 12 credibility finding is supported by substantial evidence in the 13 record, the reviewing court “may not engage in second-guessing.” 14 Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 15 16 2. Analysis The ALJ noted evidence from treating doctor Babak Zamiri and 17 examining doctor Ahmad Riahinejad that Plaintiff exaggerated her 18 symptoms and limitations.9 (AR 35, 38-39.) Dr. Zamiri noted 19 upon his initial rheumatology consultation with Plaintiff that 20 “she seemed to exaggerate her pain level and was very 21 histrionic.” (AR 38-39, 704.) Dr. Riahinejad reported that 22 Plaintiff’s score on a memory test “rules out malingering but 23 indicates a mild sub-optimal performance” and noted that her 24 score on a different test, for memory malingering, “falls into 25 the malingering range.” (AR 731, 733.) Plaintiff asserts 26 27 28 9 Although Dr. Riahinejad’s examination included assessment of her depression, the evidence of malingering pertained to testing of her cognitive and intellectual function, so the Court relies on it despite the step-two error concerning depression. 30 1 without citation that “testing indicated that there was no 2 malingering” but rather that “tests were hampered by 3 [Plaintiff’s] severe hearing loss.” (J. Stip. at 26.) Although 4 Dr. Riahinejad speculated that her hearing impairment might 5 account for her IQ scores being “slightly depressed” (AR 733), he 6 did not dismiss the evidence of malingering on the other test. 7 The ALJ thus reasonably found that the evidence showed 8 malingering, which relieved him of the burden of providing clear 9 and convincing reasons for discounting Plaintiff’s credibility. 10 (AR 35, 38-39); see Lester, 81 F.3d at 834; Bagoyan Sulakhyan v. 11 Astrue, 456 F. App’x 679, 682 (9th Cir. 2011). Nonetheless, the 12 ALJ gave clear and convincing reasons for discounting her 13 credibility.10 14 For instance, as noted above, the ALJ emphasized that 15 despite her allegations of a disabling hearing impairment not 16 improved by hearing aids and mid-2009 and later referrals to see 17 a specialist concerning a cochlear implant, Plaintiff still had 18 not done so as of the January 6, 2011 hearing. (AR 41.) 19 Plaintiff contends that the ALJ erred because it was not clear 20 whether a cochlear implant would improve her hearing (J. Stip. at 21 26), but she offers no explanation for her failure to pursue 22 examination by a specialist, which presumably would offer greater 23 clarity regarding potential outcomes. Indeed, although she 24 testified that she would have “more” cochlear-implant 25 consultation in January 2011 (see AR 53-54), she included no 26 27 28 10 As explained below, none of those reasons related to Plaintiff’s claims of depression. Thus, the ALJ’s erroneous finding that her depression was not severe did not affect his assessment of her credibility. 31 1 evidence from any such consultation in the materials she 2 submitted to the Appeals Council. And although Plaintiff 3 testified that her doctors were hesitant to provide the implant 4 “right now” “with all the other impairments that I have,” there 5 is no evidence of such concern in the record, nor does that 6 explain why Plaintiff had not sought to confirm her candidacy for 7 an implant. 8 That Plaintiff failed to seek information regarding what was 9 potentially the sole treatment for her hearing loss was a valid 10 basis upon which to discount her allegations. See Molina, 674 11 F.3d at 1112 (in determining credibility, ALJ may consider 12 “unexplained or inadequately explained failure to seek treatment 13 or to follow a prescribed course of treatment” (internal 14 quotation marks omitted)); Orn v. Astrue, 495 F.3d 625, 638 (9th 15 Cir. 2007); SSR 96-7p, 1996 WL 374186, at *7 (July 2, 1996) 16 (claimant’s statements “may be less credible if the level or 17 frequency of treatment is inconsistent with the level of 18 complaints, or if the medical reports or records show that the 19 individual is not following the treatment as prescribed and there 20 are no good reasons for this failure”).11 21 11 The ALJ noted that although Plaintiff’s son rubbed her 22 body with arthritis cream to relieve her physical pain, the 23 record contained “no indication that she has sought massage or chiropractic care to help alleviate her pain, which is an 24 indication that her pain is not as significant as she alleged.” (AR 38.) Given, however, that none of Plaintiff’s doctors appear 25 to have recommended massage or chiropractic treatment, this may not have been a valid basis upon which to discount her 26 credibility. Because the ALJ gave other clear and convincing 27 reasons for discrediting Plaintiff’s statements, any error was 28 harmless. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1163 (9th Cir. 2008) (error harmless when inconsequential to ultimate credibility determination). 32 1 The ALJ also noted that Plaintiff’s alleged onset date of 2 January 1, 2008, bore no apparent relationship to the onset or 3 significant worsening of any of her impairments. He noted that 4 her treatment for cubital-tunnel syndrome and right-shoulder 5 impairment had waned by January 2008, suggesting that neither of 6 these impairments caused significant limitations as of the 7 alleged onset date. (AR 39-40.) Nor did Plaintiff’s hearing or 8 shoulder problems appear to be disabling in January 2008. 9 Plaintiff testified that she was “let go” from her secretarial 10 position at approximately that time but “was still trying to 11 work,” so she sought training as a certified nursing assistant. 12 (AR 68.) She was unable to perform that job, however, because 13 her hearing caused miscommunication and she suffered a left14 shoulder rotator-cuff tear that rendered her unable to move 15 patients. (AR 68-69; see AR 395.) Plaintiff further testified 16 that it was not until she found herself unable to perform the CNA 17 job that she determined that she was unable to work and applied 18 for DIB. (AR 37; see AR 68-69.) The ALJ therefore found that 19 Plaintiff “performed some work activities (albeit at less than 20 presumptive substantial gainful activity levels)” after her 21 alleged onset date, indicating that the true onset date was May 22 27, 2009. (AR 37.) He also found that this inconsistency 23 undermined the credibility of Plaintiff’s allegations. 24 (Id.) An unsuccessful attempt to work during a symptom-free period 25 is not an adequate basis for discrediting a claimant’s testimony 26 when evidence establishes the existence of a medically 27 determinable impairment that could cause the disabling symptoms. 28 Santana v. Astrue, No. CV 11-7340-MLG, 2012 WL 1155937, at *3 33 1 (C.D. Cal. Apr. 4, 2012); see also Lester, 81 F.3d at 833 (noting 2 that “occasional symptom-free periods — and even the sporadic 3 ability to work — are not inconsistent with disability”). 4 Plaintiff testified, however, that after she was terminated from 5 her longtime secretarial position, she was able to undertake CNA 6 training and – until her early-2009 left-shoulder injury – was 7 still able to work. A claimant’s ability to work after her 8 alleged disability onset is a valid basis for discounting her 9 credibility. See Bray, 554 F.3d at 1227; see also Morillas v. 10 Astrue, 371 F. App’x 880, 882 (9th Cir. 2010) (finding that ALJ 11 properly considered claimant’s activities, including training to 12 be medical assistant, in assessing credibility of her pain 13 allegations). Moreover, any error in discounting Plaintiff’s 14 credibility on this basis was harmless given the finding and 15 evidence of malingering. See Carmickle v. Comm’r, Soc. Sec. 16 Admin., 533 F.3d 1155, 1163 (9th Cir. 2008) (error harmless when 17 inconsequential to ultimate credibility determination). 18 Remand is not warranted on this basis. 19 D. 20 When, as here, the ALJ erred in finding that an impairment Remand for Further Proceedings Is Appropriate 21 was not severe and possibly in the assessment of medical opinion 22 evidence, the Court generally has discretion to remand for 23 further proceedings. 24 (9th Cir. 2000). See Harman v. Apfel, 211 F.3d 1172, 1175-78 When no useful purpose would be served by 25 further administrative proceedings, however, or when the record 26 has been fully developed, it is appropriate under the 27 “credit-as-true” rule to direct an immediate award of benefits. 28 Id. at 1179 (noting that “the decision of whether to remand for 34 1 further proceedings turns upon the likely utility of such 2 proceedings”); see also Garrison v. Colvin, 759 F.3d 995, 1019-20 3 (9th Cir. 2014) (noting that credit-as-true rule applies to 4 medical opinion evidence). 5 Under the credit-as-true framework, three circumstances must 6 be present before the Court may remand to the ALJ with 7 instructions to award benefits: “(1) the record has been fully 8 developed and further administrative proceedings would serve no 9 useful purpose; (2) the ALJ has failed to provide legally 10 sufficient reasons for rejecting evidence, whether claimant 11 testimony or medical opinion; and (3) if the improperly 12 discredited evidence were credited as true, the ALJ would be 13 required to find the claimant disabled on remand.” 14 F.3d at 1020. Garrison, 759 When, however, the ALJ’s findings are so 15 “insufficient” that the Court cannot determine whether the 16 rejected testimony should be credited as true, the Court has 17 “some flexibility” in applying the credit-as-true rule. Connett 18 v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003); see also 19 Garrison, 759 F.3d at 1020 (noting that Connett established that 20 credit-as-true rule may not be dispositive in all cases). This 21 flexibility should be exercised “when the record as a whole 22 creates serious doubt as to whether the claimant is, in fact, 23 disabled within the meaning of the Social Security Act.” 24 Garrison, 759 F.3d at 1021. 25 Here, the record does not reveal whether Plaintiff’s 26 depression imposes greater limitations upon her ability to work 27 than those found by the ALJ. Accordingly, the first of the three 28 requirements for a remand for benefits has not been met. 35 1 Therefore, remand is appropriate for the ALJ to consider 2 Plaintiff’s limitations in light of the severity of Plaintiff’s 3 mental impairment and his reassessment of the opinions of Drs. 4 Chang and Babajanians. 5 VI. CONCLUSION 6 Accordingly, IT IS HEREBY ORDERED that (1) the decision of 7 the Commissioner is REVERSED; (2) Plaintiff’s request for remand 8 is GRANTED; and (3) this action is REMANDED for further 9 proceedings consistent with this Memorandum Opinion. 10 IT IS FURTHER ORDERED that the Clerk of the Court serve 11 copies of this Order and the Judgment on all parties or their 12 counsel. 13 14 DATED: November 25, 2014 15 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 36
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