Vera Conrad v. Carolyn W. Colvin, No. 2:2016cv07987 - Document 27 (C.D. Cal. 2018)
Court Description: MEMORANDUM DECISION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the Commissioner's decision, DENYING Plaintiff's request for remand, and DISMISSING this action with prejudice. (See Order for details) (bem)
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Vera Conrad v. Carolyn W. Colvin Doc. 27 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 VERA CONRAD, Plaintiff, 12 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security,1 16 Defendant. ) Case No. CV 16-7987-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) AFFIRMING COMMISSIONER ) ) ) ) ) ) ) 17 18 19 I. PROCEEDINGS Plaintiff seeks review of the Commissioner’s final decision 20 denying her applications for Social Security disability insurance 21 benefits (“DIB”) and supplemental security income benefits 22 (“SSI”). 23 undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). 24 matter is before the Court on the parties’ Joint Stipulation, 25 filed August 21, 2017, which the Court has taken under submission 26 without oral argument. The parties consented to the jurisdiction of the The For the reasons stated below, the 27 1 28 Nancy A. Berryhill is substituted in as the correct Defendant. 1 Dockets.Justia.com 1 Commissioner’s decision is affirmed. 2 II. 3 BACKGROUND Plaintiff was born in 1966. (Administrative Record (“AR”) 4 274, 281.) 5 and last worked as a cashier and caregiver (id.; see also AR 6 310). 7 She completed high school and some college (AR 40) On January 7, 2013, Plaintiff filed applications for DIB and 8 SSI, alleging that she had been disabled since July 27, 2011 (AR 9 274, 281), because of “[h]eart/lung disease,” diabetes, high 10 blood pressure, depression, and “heart attack” (AR 309). 11 her applications were denied initially (AR 185) and upon 12 reconsideration (AR 193), she requested a hearing before an 13 Administrative Law Judge (AR 199-200). 14 August 18, 2015, at which Plaintiff, who was represented by a 15 nonattorney (AR 192),2 testified, as did a vocational expert. 16 (AR 36-61.) 17 ALJ found Plaintiff not disabled. 18 requested review from the Appeals Council, and on August 25, 19 2016, it denied review. 20 III. STANDARD OF REVIEW 21 After A hearing was held on In a written decision issued September 16, 2015, the (AR 1-6.) (AR 18-35.) Plaintiff This action followed. Under 42 U.S.C. § 405(g), a district court may review the 22 Commissioner’s decision to deny benefits. 23 decision should be upheld if they are free of legal error and 24 supported by substantial evidence based on the record as a whole. The ALJ’s findings and 25 26 2 27 28 Although the transcript of the hearing indicates that Plaintiff was represented by an attorney (AR 36), in fact her representative was a “non-attorney eligible for direct payment under SSA law” (AR 192). 2 1 See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra 2 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 3 evidence means such evidence as a reasonable person might accept 4 as adequate to support a conclusion. 5 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 6 It 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)). 9 substantial evidence supports a finding, the reviewing court Substantial Richardson, 402 U.S. at To determine whether 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. 1998). 14 either affirming or reversing,” the reviewing court “may not 15 substitute its judgment” for the Commissioner’s. 16 IV. Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support Id. at 720-21. THE EVALUATION OF DISABILITY 17 People are “disabled” for purposes of receiving Social 18 Security benefits if they are unable to engage in any substantial 19 gainful activity owing to a physical or mental impairment that is 20 expected to result in death or has lasted, or is expected to 21 last, for a continuous period of at least 12 months. 22 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 23 1992). 42 U.S.C. 24 A. The Five-Step Evaluation Process 25 The ALJ follows a five-step sequential evaluation process to 26 assess whether a claimant is disabled. 27 §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 28 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). 3 20 C.F.R. In the first 1 step, the Commissioner must determine whether the claimant is 2 currently engaged in substantial gainful activity; if so, the 3 claimant is not disabled and the claim must be denied. 4 §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). 5 If the claimant is not engaged in substantial gainful 6 activity, the second step requires the Commissioner to determine 7 whether the claimant has a “severe” impairment or combination of 8 impairments significantly limiting her ability to do basic work 9 activities; if not, the claimant is not disabled and her claim 10 11 must be denied. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a “severe” impairment or combination of 12 impairments, the third step requires the Commissioner to 13 determine whether the impairment or combination of impairments 14 meets or equals an impairment in the Listing of Impairments set 15 forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, 16 disability is conclusively presumed. 17 416.920(a)(4)(iii). §§ 404.1520(a)(4)(iii), 18 If the claimant’s impairment or combination of impairments 19 does not meet or equal an impairment in the Listing, the fourth 20 step requires the Commissioner to determine whether the claimant 21 has sufficient residual functional capacity (“RFC”)3 to perform 22 her past work; if so, she is not disabled and the claim must be 23 denied. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). The claimant 24 25 26 27 28 3 RFC is what a claimant can do despite existing exertional and nonexertional limitations. §§ 404.1545, 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). The Commissioner assesses the claimant’s RFC between steps three and four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (citing § 416.920(a)(4)). 4 1 has the burden of proving she is unable to perform past relevant 2 work. 3 burden, a prima facie case of disability is established. Drouin, 966 F.2d at 1257. If the claimant meets that Id. 4 If that happens or if the claimant has no past relevant 5 work, the Commissioner then bears the burden of establishing that 6 the claimant is not disabled because she can perform other 7 substantial gainful work available in the national economy. 8 §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Drouin, 966 F.2d at 1257. 9 That determination comprises the fifth and final step in the 10 sequential analysis. 11 Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); 12 B. 13 At step one, the ALJ found that Plaintiff had not engaged in The ALJ’s Application of the Five-Step Process 14 substantial gainful activity since July 27, 2011, the alleged 15 disability-onset date. 16 she had the following severe impairments: “major depressive 17 disorder associated with grief;4 borderline intellectual 18 functioning; diabetes; [and] congestive heart failure.” 19 At step three, he found that she did not have an impairment or 20 combination of impairments falling under a Listing. 21 22 23 (AR 21.) At step two, he concluded that (Id.) (AR 21-22.) At step four, the ALJ found that Plaintiff had the RFC to perform modified light work:5 [She can] stand and/or walk for 6 hours in an 8-hour 24 25 26 27 28 4 Plaintiff’s daughter apparently died in 2012 of an overdose. (AR 970.) 5 Light work is defined as “lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. §§ 404.1567(b), 416.967(b). 5 1 workday and she can sit for 6 hours in an 8-hour workday; 2 she 3 crouch, or crawl; the claimant can also understand and 4 remember 5 persistence; she can socially interact with the general 6 public, co-workers, and supervisors; [and] she can adapt 7 to 8 unskilled, 9 instructions. 10 can occasionally tasks; workplace she changes low climb, can balance, sustain frequently stress jobs stoop, kneel, concentration enough that to require and perform simple (AR 22.) 11 Based on the VE’s testimony, the ALJ concluded that 12 Plaintiff could perform her past relevant work as a “[c]ashier,” 13 DOT 211.467-030, 1991 WL 671853. 14 ALJ alternatively determined that she could perform five 15 “representative” jobs in the national economy: “[g]arment 16 bagger,” DOT 920.687-018, 1991 WL 687965, “[b]asket filler,” DOT 17 529.687-010, 1991 WL 674737, “[a]ddresser,” DOT 209.587-010, 1991 18 WL 671797, “[s]tuffer,” DOT 731.685-014, 1991 WL 679811, and 19 “[d]ocument preparer,” DOT 249.587-018, 1991 WL 672349. 20 29.) 21 V. 22 (AR 27-28.) At step five, the Thus, the ALJ found Plaintiff not disabled. (AR 28- (AR 29-30.) DISCUSSION Plaintiff argues that the ALJ erred in (1) “changing a 23 previous[ly] assessed significant limitation that was found by 24 the previous ALJ” (J. Stip. at 5-7, 9-10), (2) finding that 25 Plaintiff “can return to her past relevant work” (id. at 10-12, 26 13), and (3) evaluating the opinion of treating physician 27 Zohngheng Tu (id. at 13-17, 21). 28 below, however, the ALJ did not err as to the first and third For the reasons discussed 6 1 contention, and any error in finding that Plaintiff could perform 2 her past relevant work was harmless. 3 A. 4 The ALJ Properly Assessed Plaintiff’s RFC Given Changed Circumstances 5 Plaintiff contends that the ALJ “adopted the finding of the 6 prior ALJ regarding [her RFC]” but that he erred because he 7 actually determined a different RFC. 8 27).) 9 decision was “clearly a borderline situation” in which she should (J. Stip. at 6 (citing AR Moreover, she argues, her age “shortly after” the ALJ’s 10 have been deemed “closely approaching advance[d] age,” rendering 11 her automatically disabled. 12 13 1. (Id. at 6-7.) Applicable law When a previous ALJ has issued a “final decision” finding a 14 claimant not disabled, an ALJ considering a subsequent claim 15 regarding an unadjudicated period must “apply a presumption of 16 continuing nondisability and determine that the claimant is not 17 disabled” unless the claimant rebuts the presumption. 18 4(9), 1997 WL 742758, at *3 (Dec. 3, 1997); see also Chavez v. 19 Bowen, 844 F.2d 691, 693 (9th Cir. 1988) (“The principles of res 20 judicata apply to administrative decisions, although the doctrine 21 is applied less rigidly to administrative proceedings than to 22 judicial proceedings.”). 23 nondisability by showing “changed circumstances” indicating a 24 “greater disability.” 25 at 827 (citing Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 26 1985)). 27 of a claimant’s impairment, changes in a claimant’s age category, 28 and new issues, “such as the existence of an impairment not SSAR 97- A claimant may rebut the presumption of Chavez, 844 F.3d at 693; Lester, 81 F.3d Changed circumstances include increases in the severity 7 1 considered in the previous application.” 2 828. 3 4 2. Lester, 81 F.3d at 827- Relevant background On July 15, 2010, Plaintiff was found not disabled since 5 January 13, 2005.6 6 impairments: “status post pericardial effusion in January 2004 7 with left mini thoracotomy in February 2004, history of coronary 8 artery disease, cardiomegaly, obesity, hypertension, poorly 9 controlled diabetes mellitus, [and] hernia and joint complaints.” (AR 105-22.) She had the following severe 10 (AR 115.) 11 “sedentary work, that is, lift and carry 10 pounds occasionally 12 and less than 10 pounds frequently, sitting 6/8 [hours].” 13 114-15.) 14 did not appeal. 15 The ALJ at that time assessed her with an RFC for (AR That decision became final when Plaintiff apparently The ALJ here acknowledged the prior ALJ’s decision and 16 recognized that a rebuttable presumption of continuing 17 nondisability existed under Chavez unless there was a showing of 18 changed circumstances. 19 been a showing of a changed circumstance” and stated that he 20 “adopt[ed] the finding of the prior ALJ regarding the claimant’s 21 [RFC].” (AR 27.) (AR 18.) He found that “there ha[d] not Upon reviewing the medical record, however, he 22 23 24 25 26 27 28 6 In a 2007 ALJ decision, Plaintiff was found disabled between January 11, 2004, and January 12, 2005, but not thereafter. (AR 92-101.) That decision was partially reversed by a district court, which affirmed the finding of a closed period of disability but remanded the case for reconsideration of the issue of later medical improvement, among others. (See AR 105.) Because Plaintiff had filed additional applications for DIB and SSI while the matter was before the district court on appeal, the 2010 ALJ addressed her claims in consolidation with the redetermination on remand. (Id.) 8 1 assessed Plaintiff with different severe impairments (see AR 21 2 (“major depressive disorder associated with grief; borderline 3 intellectual functioning; diabetes; [and] congestive heart 4 failure”)) and an RFC for light work, subject to certain 5 exceptions (AR 22). 6 June 27, 2011. 7 8 9 3. He then found Plaintiff not disabled since (AR 29.) Analysis As demonstrated by the ALJ’s review of the record and RFC determination, Plaintiff rebutted the presumption of continuing 10 nondisability by presenting changed circumstances, including such 11 new issues as depression and impaired intellectual functioning. 12 (See AR 21-27); Chavez, 844 F.3d at 693; Lester, 81 F.3d at 827. 13 The ALJ’s misstatements otherwise (see AR 27) were harmless. 14 Cha Yang v. Comm’r of Soc. Sec. Admin., 488 F. App’x 203, 204 15 (9th Cir. 2012) (finding that ALJ’s misapplication of Chavez was 16 harmless because ALJ considered plaintiff’s medical evidence in 17 formulating RFC). 18 RFC determination; he independently reviewed medical evidence 19 from after the July 2010 decision and used that evidence in 20 determining Plaintiff’s RFC after finding that she had 21 established new severe impairments. 22 medical records from 2012 through 2015).) 23 did not err by “changing a previous[ly] assessed significant 24 limitation that was found by the previous ALJ,” as Plaintiff 25 alleges (J. Stip. at 5), because the prior decision was 26 appropriately afforded no weight. 27 204; Gutierrez v. Colvin, No. CV 15-01584 FFM, 2016 WL 5402941, 28 at *5 (C.D. Cal. Sept. 26, 2016) (finding that Plaintiff See The ALJ did not in fact adopt the prior ALJ’s 9 (See AR 24-27 (discussing Accordingly, the ALJ See Cha Yang, 488 F. App’x at 1 established changed circumstances and that ALJ’s stated 2 application of “continuing non-disability theory pursuant to 3 Chavez” was harmless error because “ALJ went on to review and 4 assess plaintiff’s” medical records from after prior ALJ 5 decision); McGlothen v. Colvin, No. 2:15-cv-204-GJS, 2015 WL 6 5706186, at *3 (C.D. Cal. Sept. 29, 2015) (finding that ALJ’s 7 “invocation of res judicata” was harmless error because “ALJ 8 proceeded with a review of the medical evidence — a review that 9 approximated the traditional five-step approach”). 10 Plaintiff’s additional contentions regarding her age 11 category are factually flawed. 12 “closely approaching advance[d] age” “shortly after” the ALJ’s 13 decision and that hers was “clearly a borderline situation” in 14 which the older-age category should apply. 15 person in the “closely approaching advanced age” category and 16 with Plaintiff’s high-school education, her past work, and a 17 sedentary RFC (as was determined by the prior ALJ) would 18 necessarily be found disabled under the grids, she alleges.7 19 (See J. Stip. at 7 (citing 20 C.F.R. pt. 404, subpt. P, app. 2, Plaintiff argues that she was (J. Stip. at 6-7.) A 20 21 7 22 23 24 25 26 27 28 The grids are medical-vocational guidelines that establish “the types and numbers of jobs that exist in the national economy.” Heckler v. Campbell, 461 U.S. 458, 461 (1952); see also 20 C.F.R. pt. 404, subpt. P, app. 2 (1982). “They consist of a matrix of the four factors identified by Congress — physical ability, age, education, and work experience — and set forth rules that identify whether jobs requiring specific combinations of these factors exist in significant numbers in the national economy.” Heckler, 461 U.S. at 461-62. If “a claimant’s qualifications correspond to the job requirements identified by a rule, the guidelines direct a conclusion as to whether work exists that the claimant could perform,” and “[i]f such work exists, the claimant is not considered disabled.” Id. at 462. 10 1 R. 201.14).) 2 appropriate for a claimant who is “within a few days to a few 3 months of reaching [it].” 4 §§ 404.1536(b), 416.963(b)).) 5 She notes that use of an older-age category may be (J. Stip. at 6-7 (citing But Plaintiff was not assessed a sedentary RFC; she was 6 assessed an RFC for light work subject to certain exceptions. 7 (AR 22.) 8 category under § 404.1563 or § 416.963. 9 last insured as the benchmark (see J. Stip. at 6, 9), but the Moreover, Plaintiff did not qualify for an older-age Plaintiff uses her date 10 applicable date is that of the ALJ’s decision. 11 Comm’r Soc. Sec. Admin, 616 F.3d 1068, 1072-73 (9th Cir. 2010). 12 At that time, she was 49 years old and approximately eight months 13 from turning 50, the age at which she would qualify as “closely 14 approaching advanced age.” 15 that eight-month gap, she was not “within a few days to a few 16 months” of the older-age category and hers was not a “borderline 17 situation.” 18 616 F.3d at 1071-72 (no error considering plaintiff to be in 19 younger-age category despite her being one month shy of 55); cf. 20 Schiel v. Comm’r of Soc. Sec., 267 F. App’x 660, 660-61 (9th Cir. 21 2008) (error in not considering whether older-age category 22 applied when plaintiff was in “one-month proximity to ‘person of 23 advanced age’” (citation omitted)). 24 See Lockwood v. §§ 404.1563(d), 416.963(d). Given See §§ 404.1563(b), 416.963(b); see also Lockwood, Further, an ALJ is “not required to use an older age 25 category, even if the claimant is within a few days or a few 26 months of reaching” it. 27 original). 28 age category,” which the ALJ may satisfactorily do by mentioning Lockwood, 616 F.3d at 1071 (emphasis in An ALJ need only “consider whether to use the older 11 1 the claimant’s date of birth, determining an age category, citing 2 the relevant regulations, and evaluating “the overall impact of 3 all the factors” on the claimant’s case. 4 (emphasis in original). 5 birthday, determined that she was a “younger individual age 18- 6 49,” cited §§ 404.1563 and 416.963, and evaluated such factors as 7 her education level, ability to communicate in English, and the 8 transferability of her prior job skills. 9 therefore appropriately considered Plaintiff’s age category and Id. at 1071-72 Here, the ALJ noted Plaintiff’s (See AR 28.) The ALJ 10 did not abuse his discretion by regarding her as a “younger” 11 individual rather than a person “closely approaching advanced 12 age.” 13 1086886, at *6 (E.D. Cal. Mar. 21, 2016) (finding that ALJ 14 properly considered plaintiff’s age category when she was four 15 months from turning 55 because ALJ noted her birthday, determined 16 her age category at time of decision, cited relevant regulations, 17 and relied on VE’s testimony to find that there were jobs in 18 national economy that plaintiff could perform). 19 20 21 22 23 See Flash v. Colvin, No. 1:14-cv-01885-BAM, 2016 WL Plaintiff does not argue that the RFC was erroneous in any other way. B. Thus, remand is unwarranted on this ground. The ALJ Improperly Found that Plaintiff Could Return to Past Relevant Work, but the Error Was Harmless The ALJ determined an RFC in which Plaintiff “had the 24 limitation of needing low stress jobs that require simple 25 instructions.” 26 argues that the past relevant work as a cashier that the ALJ 27 found she could do (AR 27-28) requires “reasoning level 3,” which 28 conflicts with her alleged “limitation to simple repetitive (J. Stip. at 10; see also AR 22.) 12 Plaintiff 1 tasks.”8 2 explains, because his “decision lack[ed] logic and rationality.” 3 (Id. at 10.) 4 1. 5 (J. Stip. at 11.) Thus, the ALJ erred, Plaintiff Applicable law At step four of the five-step disability analysis, a 6 claimant has the burden of proving that she cannot return to her 7 past relevant work, as both actually and generally performed in 8 the national economy. 9 Massanari, 249 F.3d 840, 844 (9th Cir. 2001). §§ 404.1520(f), 416.920(f); Pinto v. Although the 10 burden of proof lies with the claimant at step four, the ALJ 11 still has a duty to make factual findings to support his 12 conclusion. 13 make “specific findings of fact” as to “the individual’s 14 RFC,” “the physical and mental demands of the past 15 job/occupation,” and whether “the individual’s RFC would permit a 16 return to his or her past job or occupation.” Pinto, 249 F.3d at 844. In particular, the ALJ must Ocegueda v. 17 8 18 19 20 21 22 23 24 25 26 27 28 Without explanation, Plaintiff equates the assessed limitation to “simple instructions” with a limitation to “simple, repetitive tasks.” (See J. Stip. at 11.) But the difference in the two may affect what jobs are available to her based on reasoning level. Compare Zavalin v. Colvin, 778 F.3d 842, 847 (9th Cir. 2015) (finding that RFC limiting claimant to “simple, repetitive tasks” conflicted with jobs with “Level 3 reasoning” but not level-two reasoning), with Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1003 (9th Cir. 2015) (as amended) (finding that RFC limiting claimant to “one- and two-step tasks” conflicted with jobs with “Level Two reasoning” but was consistent with “Level One reasoning” jobs); see also Bowman v. Colvin, 228 F. Supp. 3d 1121, 1141 (D. Or. 2017) (finding that “Level Two [reasoning] allows for the performance of detailed but simple instructions which are not complex”). Because Defendant does not dispute Plaintiff’s characterization, however, the Court accepts her premise. And in any event, any error was harmless because the ALJ found jobs available at a reasoning level of one, as discussed below, satisfying either a simple-instruction or simple-repetitive-task limitation. 13 1 Colvin, 630 F. App’x 676, 677 (9th Cir. 2015) (citing SSR 82–62, 2 1982 WL 31386, at *4 (1982)); see Pinto, 249 F.3d at 844-45; SSR 3 82–62, 1982 WL 31386, at *2 (step four “requires careful 4 consideration of the interaction of the limiting effects of the 5 person’s impairment(s) and the physical and mental demands of his 6 or her [past relevant work] to determine whether the individual 7 can still do that work”). 8 9 To ascertain the requirements of occupations as generally performed in the national economy, the ALJ may rely on VE 10 testimony or information from the DOT. 11 1898704, at *2 (Dec. 4, 2000) (at steps four and five, SSA relies 12 “primarily on the DOT (including its companion publication, the 13 SCO) for information about the requirements of work in the 14 national economy” and “may also use VEs . . . at these steps to 15 resolve complex vocational issues”); SSR 82–61, 1982 WL 31387, at 16 *2 (Jan. 1, 1982) (“The [DOT] descriptions can be relied upon — 17 for jobs that are listed in the DOT — to define the job as it is 18 usually performed in the national economy.” (emphasis in 19 original)). 20 SSR 00-4P, 2000 WL When a VE provides evidence at step four or five about the 21 requirements of a job, the ALJ has a responsibility to ask about 22 “any possible conflict” between that evidence and the DOT. 23 SSR 00-4p, 2000 WL 1898704, at *4; Massachi v. Astrue, 486 F.3d 24 1149, 1152-54 (9th Cir. 2007) (holding that application of SSR 25 00-4p is mandatory). 26 accept VE testimony that contradicts the DOT only if the record 27 contains “persuasive evidence to support the deviation.” 28 249 F.3d at 846 (citing Johnson v. Shalala, 60 F.3d 1428, 1435 See When such a conflict exists, the ALJ may 14 Pinto, 1 (9th Cir. 1995)); see also Tommasetti v. Astrue, 533 F.3d 1035, 2 1042 (9th Cir. 2008) (finding error when “ALJ did not identify 3 what aspect of the VE’s experience warranted deviation from the 4 DOT”). 5 2. 6 Relevant background The ALJ determined an RFC for light work except that, among 7 other things, Plaintiff could only “adapt to workplace changes 8 frequently enough to perform unskilled, low stress jobs that 9 require simple instructions.” (AR 22.) 10 At Plaintiff’s hearing, the ALJ asked the VE whether a 11 person with Plaintiff’s age, education, and RFC would be capable 12 of performing jobs in the national economy. 13 testified that such a person would be able to perform the jobs of 14 “garment bagger” (of which there were 29,000 in the national 15 economy) and “[b]asket filler” (48,000 in the national economy) 16 as well as Plaintiff’s past relevant work as a “cashier” (34,000 17 in the national economy). 18 with a sedentary-work RFC, the VE testified that the jobs of 19 “[a]ddresser” (15,000 in the national economy), “[s]tuffer” 20 (25,000 in the national economy), and “[d]ocument preparer” 21 (400,000 in the national economy) would also be available. 22 59.) 23 “all of those jobs” were “consistent with the DOT.” 24 25 (AR 58-59.) (AR 57-58.) The VE When asked about a person (AR The VE, responding to a question from the ALJ, stated that 3. (Id.) Analysis As Defendant evidently concedes (see J. Stip. at 12), the 26 ALJ erred in finding that Plaintiff could perform her past 27 relevant work as a cashier because that job, which requires a 28 reasoning level of three, see DOT 211.467-030, 1991 WL 671853, 15 1 conflicts with her restriction to work with simple instructions. 2 See Zavalin v. Colvin, 778 F.3d 842, 847 (9th Cir. 2015) (holding 3 that “there is an apparent conflict between the residual 4 functional capacity to perform simple, repetitive tasks, and the 5 demands of Level 3 Reasoning”); accord Simpson v. Berryhill, __ 6 F. App’x __, No. 16-55964, 2017 WL 5643198, at *2 (9th Cir. Nov. 7 24, 2017). 8 light of his alternative finding at step five. 9 533 F.3d at 1042-43; Shaibi v. Berryhill, 870 F.3d 874, 883 n.6 10 11 The ALJ’s step-four error was harmless, however, in See Tommasetti, (9th Cir. 2017). The ALJ determined that Plaintiff could perform the jobs of 12 garment bagger and basket filler (AR 28-29), both of which have 13 reasoning levels of one, see 1991 WL 687965; 1991 WL 674737. 14 Plaintiff’s limitation to simple instructions does not conflict 15 with level-one-reasoning jobs; thus, the ALJ properly found that 16 she could find work in the national economy at her appropriate 17 reasoning level, negating any error committed at step four. 18 Lara v. Astrue, 305 F. App’x 324, 326 (9th Cir. 2008) (holding 19 that limitation to “simple, repetitive tasks” does not conflict 20 with “Reasoning Level 1 and 2 jobs”); see also Hernandez v. 21 Berryhill, __ F. App’x __, No. 15-17028, 2017 WL 3888299, at *1 22 (9th Cir. Sept. 6, 2017) (finding that ALJ’s failure to resolve 23 conflict between simple-repetitive-task RFC and jobs requiring 24 “Level 3 reasoning” was harmless because “[t]here was no apparent 25 conflict between the ALJ’s [RFC] determination” and identified 26 job “requiring ‘Level 2’ reasoning”); Flash, 2016 WL 1086886, at 27 *4-5 (finding that ALJ’s error in not resolving conflict between 28 RFC for “simple (SVP 1 and 2), routine and repetitive tasks” and 16 See 1 cashier job was harmless because ALJ “made an alternate finding 2 at step five of the sequential evaluation that other jobs existed 3 in the national economy that Plaintiff could perform,” two of 4 which “require[d] no more than Level 2 Reasoning”). 5 Accordingly, remand is not warranted on this basis. 6 C. 7 The ALJ did not assign any weight to Dr. Tu’s opinion and The ALJ Properly Rejected Dr. Tu’s Opinion 8 provided several reasons for doing so: (1) “Dr. Tu did not 9 provide an explanation” for his opinion or “medically acceptable 10 clinical or diagnostic findings to support [it],” (2) the opinion 11 was “inconsistent with the claimant’s admitted activities of 12 daily living,” and (3) the opinion was “inconsistent with the 13 objective medical evidence as a whole.” 14 challenges those reasons, arguing that foot swelling was “an 15 acceptable clinical finding” supporting Dr. Tu’s opinion, the ALJ 16 “made no attempt in connecting what objective medical evidence 17 was inconsistent with” his opinion, and “[n]one of the activities 18 adduced under examination or otherwise reflected in the record 19 would exceed the limitations assessed by Dr. Tu.” 20 at 15-16.) 21 22 (AR 26.) Plaintiff (See J. Stip. The ALJ did not err. 1. Applicable law Three types of physicians may offer opinions in Social 23 Security cases: those who directly treated the plaintiff, those 24 who examined but did not treat the plaintiff, and those who did 25 neither. 26 is generally entitled to more weight than an examining 27 physician’s, and an examining physician’s opinion is generally 28 entitled to more weight than a nonexamining physician’s. Lester, 81 F.3d at 830. 17 A treating physician’s opinion Id.; 1 see §§ 404.1527(c)(1), 416.927(c)(1).9 2 treating physicians are employed to cure and have a greater 3 opportunity to know and observe the claimant. 4 80 F.3d 1273, 1285 (9th Cir. 1996). 5 nontreating, nonexamining physician can amount to substantial 6 evidence, so long as other evidence in the record supports those 7 findings.” 8 (per curiam) (as amended). 9 This is so because Smolen v. Chater, But “the findings of a Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) The ALJ may disregard a physician’s opinion regardless of 10 whether it is contradicted. 11 751 (9th Cir. 1989); see Carmickle v. Comm’r, Soc. Sec. Admin., 12 533 F.3d 1155, 1164 (9th Cir. 2008). 13 not contradicted by other medical-opinion evidence, however, it 14 may be rejected only for “clear and convincing” reasons. 15 Magallanes, 881 F.2d at 751; Carmickle, 533 F.3d at 1164 (citing 16 Lester, 81 F.3d at 830-31). 17 must provide only “specific and legitimate reasons” for 18 discounting it. Magallanes v. Bowen, 881 F.2d 747, When a doctor’s opinion is When it is contradicted, the ALJ Carmickle, 533 F.3d at 1164 (citing Lester, 81 19 20 21 22 23 24 25 26 27 28 9 Social Security regulations regarding the evaluation of opinion evidence were amended effective March 27, 2017. When, as here, the ALJ’s decision is the final decision of the Commissioner, the reviewing court generally applies the law in effect at the time of the ALJ’s decision. See Lowry v. Astrue, 474 F. App’x 801, 804 n.2 (2d Cir. 2012) (applying version of regulation in effect at time of ALJ’s decision despite subsequent amendment); Garrett ex rel. Moore v. Barnhart, 366 F.3d 643, 647 (8th Cir. 2004) (“We apply the rules that were in effect at the time the Commissioner’s decision became final.”); Spencer v. Colvin, No. 3:15-CV-05925-DWC, 2016 WL 7046848, at *9 n.4 (W.D. Wash. Dec. 1, 2016) (“42 U.S.C. § 405 does not contain any express authorization from Congress allowing the Commissioner to engage in retroactive rulemaking.”). Accordingly, citations to 20 C.F.R. §§ 404.1527 and 416.927 are to the version in effect from August 24, 2012, to March 26, 2017. 18 1 F.3d at 830-31). 2 physician’s opinion, moreover, depends on whether it is 3 consistent with the record and accompanied by adequate 4 explanation, among other things. 5 416.927(c)(3)-(6). 6 afforded the opinions of nonexamining physicians. 7 §§ 404.1527(e), 416.927(e). 8 agency medical consultants and experts as opinion evidence. 9 The weight given a treating or examining §§ 404.1527(c)(3)-(6), Those factors also determine the weight The ALJ considers findings by stateId. Furthermore, “[t]he ALJ need not accept the opinion of any 10 physician . . . if that opinion is brief, conclusory, and 11 inadequately supported by clinical findings.” 12 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); accord Batson v. 13 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). 14 An ALJ need not recite “magic words” to reject a physician’s 15 opinion or a portion of it; the court may draw “specific and 16 legitimate inferences” from the ALJ’s opinion. 17 F.2d at 755. 18 record, the ALJ does not need to ‘discuss every piece of 19 evidence.’” 20 1012 (9th Cir. 2003) (quoting Black v. Apfel, 143 F.3d 383, 386 21 (8th Cir. 1998)). 22 Thomas v. Magallanes, 881 “[I]n interpreting the evidence and developing the Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, The Court must consider the ALJ’s decision in the context of 23 “the entire record as a whole,” and if the “‘evidence is 24 susceptible to more than one rational interpretation,’ the ALJ’s 25 decision should be upheld.” 26 F.3d 1194, 1198 (9th Cir. 2008) (citation omitted). Ryan v. Comm’r of Soc. Sec., 528 27 28 19 1 2. 2 Relevant background On March 30, 2015, Dr. Tu completed a physical-RFC 3 questionnaire regarding Plaintiff. 4 that she had the following diagnoses: diabetes mellitus, 5 hypertension, and coronary artery disease “[status post] stent.” 6 (AR 966; see also J. Stip. at 13.) 7 were “foot swelling from prolonged sitting/standing,” and he 8 identified only “mild” foot swelling under the section for 9 “clinical findings and objective signs.” (AR 966-69.) He indicated He stated that her symptoms (AR 966.) Her 10 prognosis, Dr. Tu found, was “fair” (id.), and her limitations 11 applied to the period between November 1, 2012, to the date of 12 the opinion (AR 969). 13 Dr. Tu assessed that Plaintiff was “[i]ncapable of even ‘low 14 stress’ jobs” because they would “contribute to [hypertension] 15 and heart dis[ease].” 16 without rest or severe pain, sit for 10 minutes at a time, and 17 stand for 15 minutes at a time. 18 stand/walk” for “less than 2 hours” “total in an 8-hour working 19 day,” would need to take unscheduled breaks every hour during an 20 eight-hour day, and would have to rest for 20 minutes before 21 returning to work. 22 include periods of walking around during an 8-hour working day,” 23 nor did she “need a job that permits shifting positions at will 24 from sitting, standing or walking.” 25 need a cane or other assistive device for standing or walking and 26 did not need to elevate her legs during prolonged sitting. (AR 27 968.) (AR 28 966-67.) (AR 967.) She could walk “0” city blocks (Id.) (AR 967-68.) She could also “sit and She did not, however, “need to (Id.) Further, she did not Dr. Tu left two questions pertaining to pain blank. 20 1 He assessed that Plaintiff could rarely lift and carry less 2 than 10 pounds and could never lift and carry 10 pounds or more. 3 (AR 968.) 4 of neck”), turn her head right or left, look up, or hold her head 5 in a static position. 6 stoop (or bend) and rarely climb ladders or stairs. 7 had no limitations with “reaching, handling or fingering” (id.) 8 and had “no other” limitations than those described (AR 969). 9 She could occasionally look down (“sustained flexion (Id.) She could occasionally twist and (Id.) She As indicated on the March 2015 questionnaire (AR 966, 969), 10 Plaintiff had first seen Dr. Tu a month earlier, on February 25 11 (see AR 1813-30). 12 and pain around an unspecified scar-tissue area. 13 Upon examination, she demonstrated tenderness in her abdominal 14 region but was otherwise normal. 15 she “exhibit[ed] no edema” in her musculoskeletal system, 16 assessed her with abdominal pain, among other things, and ordered 17 a CT scan of her abdomen. 18 “could be a source of the patient’s pain.” 19 saw Dr. Tu again on March 19, 2015, regarding her abdominal pain, 20 which she seemed to indicate had “resolved.” 21 demonstrated some tenderness in her abdominal region, however, 22 but “no rebound” or “guarding.” 23 abdominal pain, an umbilical hernia, and “essential 24 hypertension.” 25 At that time, she complained of abdominal pain (AR 1815.) (AR 1813.) Dr. Tu noted that The scan revealed a hernia that (Id.) (AR 1835.) (AR 1857.) Plaintiff (AR 1856-70.) She He assessed her with (AR 1858.) That day, Plaintiff was admitted to the hospital and her 26 hernia was repaired. 27 noted as having “acute” abdominal pain. 28 extremities were “non-tender,” had normal range of motion, and (AR 1056-57, 1065.) 21 At intake, she was (AR 1057.) Her 1 presented with “no pedal edema.” 2 discharged on March 24, 2015 (AR 1065), she had “trace edema” on 3 March 21 (AR 1072) but “no significant edema” the next day (AR 4 1068). 5 (Id.) Before she was Plaintiff saw Dr. Tu on March 30, 2015 (AR 1926-36), the 6 same day he completed his questionnaire. 7 only of abdominal discomfort and pneumonia. 8 examination, she demonstrated tenderness in her abdominal region 9 but no rebound or guarding. (AR 1927.) (AR 1926-27.) Upon She “exhibit[ed] no 10 edema” and her gait was “normal.” 11 abdominal pain and ordered an x-ray of her abdomen, which 12 revealed a “left nephrolithiasis.”10 13 (Id.) Plaintiff complained He assessed her with (AR 1929.) Plaintiff saw Dr. Tu again in May 2015 to receive clearance 14 for extracorporeal shockwave lithotripsy, a procedure used to 15 treat kidney stones.11 16 procedure, noting that Plaintiff’s “ambulation [was] limited due 17 to neuropathy” but finding that she was otherwise normal and 18 “exhibit[ed] no edema.” 19 (AR 2025.) Dr. Tu cleared her for the (AR 2025-28.) In June 2015, Plaintiff saw Dr. Tu for pain in her left leg 20 and right thumb. 21 “[p]ositive for myalgias” in her musculoskeletal system but (AR 2108-09.) He found that she was 22 23 24 25 26 27 28 10 Nephrolithiasis is the medical term for kidney stones. See Kidney Stones, MedlinePlus, https://medlineplus.gov/ kidneystones.html (last updated Nov. 7, 2017). 11 ESWL uses shockwaves to break a kidney stone into small pieces that can more easily travel through a patient’s urinary tract and pass from the body. See Extracorporeal Shock Wave Lithotripsy (ESWL) for Kidney Stones, WebMD, https:// www.webmd.com/kidney-stones/extracorporeal-shock-wavelithotripsy-eswl-for-kidney-stones (last updated Nov. 20, 2015). 22 1 “exhibit[ed] no edema” and was “[n]egative” for leg swelling. 2 (AR 2109-10.) 3 her with left-leg pain, right-thumb pain, and uncontrolled 4 diabetes mellitus. 5 hand, referred her to orthopedics, and prescribed her 6 hydrocodone-acetaminophen12 and nortriptyline.13 7 revealed “[n]o significant abnormality.” 8 9 Other findings were normal, and Dr. Tu assessed (AR 2110.) He ordered an x-ray of her right (Id.) The x-ray (AR 2112.) In July 2015, Plaintiff saw Dr. Tu to receive medical clearance for a surgery “for kidney stones.” (AR 2428-29.) Upon 10 examination, Plaintiff’s findings were normal and she exhibited 11 no pain, tenderness, or edema. 12 she was at a “high risk for [myocardial infarction]”14 but that 13 she agreed to proceed with the surgery. 14 (AR 2430-31.) Dr. Tu noted that (AR 2431.) In March 2013, Plaintiff completed an adult function report. 15 (AR 324-32.) 16 “walk to[o] far,” or “sleep at night”; she had “a lot of chest 17 pains” and “depression”; and she didn’t “like to [be] around 18 people.” 19 most of the time” and “just stay[ed] in bed” (AR 325), and she 20 needed reminders to “dress better” and to take medicine (AR 326). She indicated that she could not “concentrat[e],” (AR 324.) She reported that she “d[id] nothing much 21 12 22 23 24 25 Hyrdocodone combination products containing acetaminophen are used to relieve moderate to severe pain. See Hydrocodone Combination Products, MedlinePlus, https://medlineplus.gov/ druginfo/meds/a601006.html (last updated Oct. 15, 2017). 13 Nortriptyline is an antidepressant. See Nortiptyline, MedlinePlus, https://medlineplus.gov/druginfo/meds/a682620.html (last updated Aug. 15, 2017). 26 14 27 28 Although Plaintiff claimed at her hearing to have had “about five” surgical procedures stemming from congestive heart failure (AR 44), the ALJ and counsel could identify only one in the medical records (AR 55-57). 23 1 She noted, however, that she took care of her grandson, though 2 she did not “have much to do [because he was] old enough to take 3 care of himself.” 4 daily, including “sandwiches, frozen dinners, [and] eat[ing] 5 out,” which would take her “half an hour” (AR 326); washed 6 dishes, which would take an hour (id.); went out alone by 7 walking, riding in a car, or using public transportation (AR 8 327); drove (id.); shopped in stores for groceries once a month 9 (id.); could pay bills, count change, handle a savings account, (AR 325.) She also prepared her own meals 10 and use a checkbook or money orders (id.); and spent time with 11 others by phone “with a friend” or at “church” (AR 328). 12 also indicated that she did not “need to be reminded to go 13 places” and did not “need someone to accompany” her. 14 She (Id.) She stated that she had problems getting along with family, 15 friends, neighbors, and others because she liked to “keep to 16 [her]self” and did not “like to be around people.” 17 She reported that she could not lift more than five pounds, walk 18 far, or climb stairs “without getting out of breath or chest 19 pains.” 20 need to “rest for about 5-10 minutes.” 21 (Id.) (AR 329.) She could walk only “maybe 100 yards” and would (Id.) Plaintiff completed an additional adult function report in 22 July 2013. 23 work in part because she could not “walk to[o] long” or “sit 24 without legs in pain.” 25 in the house and watch[ed] T.V.” “all day” (AR 351, 354), but she 26 had no problems with personal care (AR 351); did not need 27 reminders to take care of personal needs or grooming or to take 28 medicine (AR 352); prepared her own meals daily, such as frozen (AR 350-58.) She indicated that she was unable to (AR 350.) 24 She reported that she “s[at] 1 dinners and sandwiches, which would taken “about 10 min[utes]” 2 (id.); cleaned her house once a week, which could “take all day” 3 (id.); traveled to places by walking, riding in a car, or using 4 public transportation (AR 353); shopped in stores for food (id.); 5 could pay bills, count change, handle a savings account, and use 6 a checkbook or money orders (id.); and regularly went to church 7 (AR 354). 8 She indicated, however, that she had problems getting along 9 with family, friends, neighbors, and others because she got “mad 10 a lot” and would “snap at them.” 11 not being able to lift “about 5 [pounds],” “walk a few yards,” or 12 “concentrat[e].” 13 needing to rest and would have to rest for “about five minute[s]” 14 before she could resume walking. 15 she could pay attention for “maybe 5-10 min[utes]” and that she 16 could not follow written or spoken instructions well because she 17 “ha[s] to[o] much on [her] mind at one time” and “ha[s] to [be] 18 told more than once.” (Id.) (AR 355.) She also reported She could walk “only a few yards” before (Id.) She also indicated that (Id.) 19 In a consultative examination conducted on May 21, 2015, 20 Plaintiff indicated that she needed help with doing household 21 chores and walking “but not with making meals, shopping, dressing 22 and bathing.” 23 public transportation” and that she was “managing her own funds” 24 at the time. 25 (AR 971.) She also reported that she “use[d] (Id.) At her August 2015 hearing, she reported that she had help 26 with her chores. 27 friend helped “keep [her] house clean” and took her “grocery 28 shopping.” (Id.) (AR 52.) She stated that her brother and a She claimed to have “a lot” of swelling in 25 1 both feet and said she had to elevate her legs when she sat down. 2 (AR 42.) 3 4 3. Analysis Dr. Tu’s opinion was contradicted by the opinion of 5 consulting internist John Sedgh (see AR 982-87; see also AR 988- 6 93), which the ALJ gave “great weight” (AR 26-27). 7 does not challenge that determination. 8 at 13-17, 21.) 9 a specific and legitimate reason for rejecting Dr. Tu’s opinion. Plaintiff (See generally J. Stip. Accordingly, the ALJ was required to provide only 10 See Carmickle, 533 F.3d at 1164; see also Orn v. Astrue, 495 F.3d 11 625, 632 (9th Cir. 2007). 12 13 a. He gave several. Lack of supporting explanation The ALJ stated that “Dr. Tu did not provide an explanation 14 for [his] assessment” but instead “primarily summarized in the 15 treatment notes the claimant’s subjective complaints, diagnoses, 16 and treatment.” 17 medically acceptable clinical or diagnostic findings to support 18 the functional assessment.” 19 legitimate. 20 Cir. 2005) (citing Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th 21 Cir. 2001)); Batson, 359 F.3d at 1195; Thomas, 278 F.3d at 957. 22 (AR 26.) Moreover, he did not “provide (Id.) This reason was specific and See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th An ALJ may discount the “opinion of a doctor if that opinion 23 is brief, conclusory, and inadequately supported by clinical 24 findings.” 25 when, as here, a doctor’s opinion is captured in a check-off 26 report that does “not contain any explanation of the bases of 27 [his] conclusions.” 28 1996). Bayliss, 427 F.3d at 1216. This is especially true Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. Dr. Tu’s opinion, expressed through a questionnaire (see 26 1 AR 966-69), assessed several severe functional limitations on 2 Plaintiff’s ability to sit, stand, walk, lift, carry, and 3 concentrate, among other activities, but failed to indicate how 4 he had determined the limitations. 5 F. App’x 201, 208-09 (9th Cir. 2009) (ALJ was “free to reject” 6 doctor’s check-off report that did not “indicate any measuring of 7 effort or give[] a description” of how patient was evaluated 8 (alteration in original)). 9 that Dr. Tu had seen Plaintiff only twice before rendering his See De Guzman v. Astrue, 343 This is especially significant given 10 opinion, for an abdominal condition that was shortly thereafter 11 surgically repaired. 12 470 (9th Cir. 2014) (ALJ properly rejected medical opinion 13 because treatment records reflected subsequent “positive response 14 to treatment”); Rolston v. Astrue, 298 F. App’x 661, 662 (9th 15 Cir. 2008) (treating physician’s opinion properly rejected when 16 last visit with plaintiff “was before the date of medical 17 improvement” (emphasis in original)). 18 lack of supporting explanation, as the ALJ did, was therefore 19 valid. 20 72340, at *3 (C.D. Cal. Jan. 6, 2015) (upholding ALJ’s rejection 21 of treating physician’s opinion because there “were no supportive 22 clinical or diagnostic findings” and “no explanation of the bases 23 of the opinion — the opinion was contained in a check-off 24 report”). 25 See Merritt v. Colvin, 572 F. App’x 468, Rejecting his opinion for See Rojas v. Colvin, No. ED CV 14-00940(SH), 2015 WL To the extent that Dr. Tu provided an explanation for his 26 assessments by noting “mild foot swelling” (AR 966), as Plaintiff 27 implies by arguing that it was “an acceptable clinical finding” 28 (J. Stip. at 15) and pointing to a few instances in the record 27 1 where she was noted as having edema in her extremities (id. 2 (citing AR 985, 1072, 1410, 2203)), substantial evidence does not 3 support the finding. 4 Dr. Tu assessed were “out of proportion to any finding within 5 [his] treatment notes.” 6 Moreover, the many functional limitations De Guzman, 343 F. App’x at 208. Of the at least six times that Plaintiff saw Dr. Tu, he 7 never noted foot swelling but instead regularly found that she 8 did not exhibit edema. 9 (Mar. 2015), 2027 (May 2015), 2109-10 (June 2015), 2431 (July (See, e.g., AR 1815 (Feb. 2015), 1927 10 2015).) 11 Plaintiff saw him primarily for abdominal pain associated with a 12 hernia and kidney stones. 13 complaining of abdominal pain), 1926-27 (Mar. 2015 complaining of 14 abdominal discomfort), 2025 (May 2015 seeking clearance for 15 kidney-stone procedure), 2108-09 (June 2015 complaining of left- 16 leg and right-thumb pain), 2428-29 (July 2015 seeking clearance 17 for kidney-stone surgery).) 18 kidney-stone treatment, when she was presumably suffering much 19 more serious symptoms, Dr. Tu completed his March 2015 opinion. 20 (Compare AR 1856-70 (Dr. Tu’s second visit with Plaintiff on Mar. 21 19, 2015), and AR 966-69 (Mar. 30, 2015 questionnaire by Dr. Tu), 22 with AR 1056-57 (Plaintiff admitted to hospital for hernia repair 23 on Mar. 19, 2015, after visit with Dr. Tu), AR 2025 (May 2015 24 clearance for ESWL kidney-stone treatment), and AR 2428-29 (July 25 2015 clearance for kidney-stone surgery).) 26 note that Plaintiff’s ability to walk was limited, by neuropathy 27 (AR 2025), and just over a month before making that observation 28 he noted that her gait was “normal” (AR 1927) — the same day he Indeed, Dr. Tu’s treatment notes indicated that (See, e.g., AR 1813 (Feb. 2015 Just before she received hernia and 28 Only once did Dr. Tu 1 rendered his opinion that she could walk “0” blocks without rest 2 or severe pain (AR 967). 3 AS, 2015 WL 7069291, at *6 (C.D. Cal. Nov. 12, 2015) (finding 4 that ALJ properly rejected treating-source opinion that “was 5 conclusory and not supported by objective medical evidence” 6 because doctor “did not cite to any objective clinical or 7 diagnostic findings to support his opinion” and “treatment notes” 8 did not support it); Clay v. Astrue, No. CV 12-1881 RNB, 2013 WL 9 550494, at *3 (C.D. Cal. Feb. 11, 2013) (“[T]he ALJ noted that See Garcia v. Colvin, No. ED CV 14-531- 10 [treating physician’s] conclusions were not adequately supported 11 by clinical data and diagnostic findings, including [his] own 12 treatment notes[.]”). 13 Further, though the record demonstrates that other doctors 14 at times noted “trace” edema in Plaintiff’s feet (see AR 1410 15 (Aug. 2014), 1432 (same), 1072 (Mar. 2015), 1875 (same), 985 (May 16 2015), 2203 (July 2015), 2252 (same), 2255 (same)), she has more 17 frequently been noted — by podiatrists, among other physicians — 18 as demonstrating no edema since 2012 (see AR 496 (June 2012), 861 19 (Feb. 2013), 890 (Apr. 2013), 897 (May 2013 by podiatrist), 1099 20 (Nov. 2013), 1116 (same), 1119 (same), 1168 (Apr. 2014), 1289 21 (June 2014), 1301 (June 2014 by podiatrist), 1343 (June 2014), 22 1600 (Dec. 2014), 1815 (Feb. 2015), 1057 (Mar. 2015), 1068 23 (same), 1882 (same), 1927 (same), 2027 (May 2015), 2063 (same), 24 2110 (June 2015), 2131 (same), 2267 (July 2015), 2213 (same), 25 2431 (same)). 26 apparent reliance on foot swelling to justify his functional 27 assessments. 28 (9th Cir. 2017) (finding that ALJ “provided specific and The record therefore does not support Dr. Tu’s See Ruckdashel v. Colvin, 672 F. App’x 745, 745-46 29 1 legitimate reasons, supported by substantial evidence, for 2 rejecting” treating physician’s opinion, including that it was 3 “conclusory” and “contradicted by the objective medical 4 evidence”). 5 Thus, the ALJ properly rejected Dr. Tu’s opinion for the 6 specific and legitimate reason, supported by substantial evidence 7 in the record, that it lacked explanation and support from 8 clinical or diagnostic findings. 9 b. 10 Inconsistency with daily activities The ALJ further discounted Dr. Tu’s opinion because it was 11 “inconsistent with the claimant’s admitted activities of daily 12 living.” 13 ALJ, indicated that Plaintiff could “watch television; maintain 14 her personal care; prepare her own meals; clean house; walk; use 15 public transportation; ride in a car; go out alone; drive; shop 16 in stores for food; manage her finances; and attend church.” 17 24 (citing AR 350-55).) 18 reported to a “consultative examiner that she could do household 19 chores and walk (but with assistance)” and “use public 20 transportation and manage her own funds.” 21 (AR 26.) Those daily activities, as summarized by the (AR The ALJ also noted that Plaintiff (Id. (citing AR 971).) Inconsistency with daily activities is a specific and 22 legitimate reason for discounting a treating physician’s opinion. 23 See Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014); Morgan 24 v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600-02 (9th Cir. 25 1999); Fisher v. Astrue, 429 F. App’x 649, 652 (9th Cir. 2011). 26 Here, the ALJ correctly identified several of Plaintiff’s daily 27 activities that were inconsistent with Dr. Tu’s opinion. 28 for example, found that Plaintiff could sit for only 10 minutes 30 Dr. Tu, 1 at a time and less than two hours a day, stand for only 15 2 minutes at a time, and walk “0” city blocks without rest or 3 severe pain. 4 her own meals daily, washed dishes, and cleaned her house once a 5 week, and she apparently took care of her grandson.15 6 24; see also AR 325-26, 352.) 7 riding in a car, or using public transportation and did not need 8 “someone to accompany” her; moreover, she could drive, shop in 9 stores, and go to church. (AR 967.) But as the ALJ found, Plaintiff prepared (See AR She could also travel by walking, (See AR 24; see also AR 327, 353-54); 10 Lor v. Berryhill, No. 1:15-cv-01923-EPG, 2017 WL 511864, at *6 11 (E.D. Cal. Feb. 7, 2017) (finding that such daily activities as 12 watching television, cooking, taking walks, driving, visiting 13 friends and family, and doing so independently were inconsistent 14 with treating physician’s assessment). 15 walk more than “0” blocks and sit more than two hours a day, as 16 Dr. Tu indicated. 17 in the house and watch[ed] T.V.” “all day.” 18 Clearly, Plaintiff could Indeed, Plaintiff herself said that she “s[at] (AR 351, 354.) Though Plaintiff argues that “her brother” helped her “keep 19 the house clean and [took] her grocery shopping,” as specified at 20 her hearing (J. Stip. at 16 (citing AR 52)), that detail alone 21 does not explain the inconsistencies between her daily activities 22 and Dr. Tu’s opinion. 23 indicated more severe symptoms, the ALJ found her allegations 24 “less than fully credible,” a finding unchallenged by Plaintiff. Even if Plaintiff’s hearing testimony 25 26 27 15 28 As of October 2014, Plaintiff also seems to have “care[d] for her newborn great niece.” (AR 953.) 31 1 (AR 23.)16 2 reported to a consultative examiner that while she needed help 3 with household chores and walking, she did not need assistance 4 “making meals, shopping, dressing, and bathing,” “use[d] public 5 transportation,” and “manag[ed] her own funds.” 6 Further, Dr. Tu himself found that Plaintiff did not need an 7 assistive device to walk. 8 Supp. 2d 1181, 1189-90 (W.D. Wash. 2013) (finding that ALJ’s 9 rejection of treating-source opinion as inconsistent with daily Moreover, as noted by the ALJ, Plaintiff herself (AR 971.) (AR 968); see Hunt v. Colvin, 954 F. 10 activities was properly supported by ALJ’s citation to 11 plaintiff’s self-reported activities and her report of “similar 12 tasks during a consultative examination”). 13 the ALJ’s decision was rational and supported by substantial 14 evidence in the record, the Court should not “second guess[]” his 15 determination. 16 Supp. 2d at 1190 (“Though her testimony at the administrative 17 hearing indicated more severe symptoms, the ALJ was not 18 unreasonable in relying on other evidence of Plaintiff’s self- 19 reported activities and in construing that evidence to be 20 inconsistent with [treating source] opinion.” (citing Tackett v. 21 Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999))). 22 In any event, because Thomas, 278 F.3d at 959; see also Hunt, 954 F. Thus, the ALJ’s identification of inconsistencies between 23 Plaintiff’s daily activities and the highly restrictive 24 limitations in Dr. Tu’s opinion constitutes an additional 25 26 27 28 16 As one example, although Plaintiff claimed to have “a lot” of foot swelling and said she needed to elevate her feet when she sat (AR 42), Dr. Tu noted only “mild” swelling and expressly found that she had no need to elevate her feet when sitting (AR 966, 968). 32 1 specific and legitimate reason for rejecting it. 2 3 c. Inconsistency with objective medical evidence Inconsistency with objective medical evidence is a specific 4 and legitimate reason for discounting a treating physician’s 5 opinion. 6 App’x 516, 517 (9th Cir. 2017) (citing Tommasetti, 533 F.3d at 7 1041)). 8 “inconsistent with the objective medical evidence as a whole” (AR 9 26) and described in detail her medical records (see AR 25 Batson, 359 F.3d at 1195; Kohansby v. Berryhill, 697 F. The ALJ here stated that Dr. Tu’s opinion was 10 (citing AR 406, 585, 636, 1064, 1067, 2210)). 11 assessed consulting internist Sedgh’s opinion, in which Plaintiff 12 was examined and diagnosed with hypertension, chest pain, 13 diabetes, and congestive heart failure and found capable of 14 performing “at the equivalence of the light exertional level.” 15 (AR 26-27; see also AR 982-87.) 16 supported by substantial evidence in the record and contradicted 17 the more restrictive functional assessment provided by Dr. Tu, 18 and thus the ALJ correctly rejected Dr. Tu’s opinion for the 19 specific and legitimate reason that it was inconsistent with 20 other objective medical evidence. 21 App’x 413, 415 (9th Cir. 2016). The ALJ also Dr. Sedgh’s opinion was See Bailey v. Colvin, 659 F. 22 Even assuming that the ALJ erred by not specifically 23 identifying which aspects of Dr. Tu’s opinion were inconsistent 24 with which pieces of medical evidence, see Embrey v. Bowen, 849 25 F.2d 418, 421-22 (9th Cir. 1988); Weiskopf v. Berryhill, 693 F. 26 App’x 539, 541 (9th Cir. 2017), any such error was harmless 27 because the ALJ provided other specific and legitimate reasons, 28 lack of supporting explanation and inconsistency with daily 33 1 activities, for rejecting the opinion. 2 Sec. Admin., 349 F. App’x 181, 184 (9th Cir. 2009); DeBerry v. 3 Comm’r of Soc. Sec. Admin., 352 F. App’x 173, 176 (9th Cir. 4 2009); Bartels v. Colvin, No. CV 15-5144 AFM, 2016 WL 768851, at 5 *4 (C.D. Cal. Jan. 29, 2016). 6 See Howell v. Comm’r Soc. The ALJ therefore properly rejected Dr. Tu’s opinion for the 7 specific and legitimate reason that it was inconsistent with the 8 objective medical evidence of record, as well as for lack of 9 supporting explanation and inconsistency with Plaintiff’s daily 10 activities, as discussed above. 11 VI. 12 CONCLUSION Consistent with the foregoing and under sentence four of 42 13 U.S.C. § 405(g),17 IT IS ORDERED that judgment be entered 14 AFFIRMING the Commissioner’s decision, DENYING Plaintiff’s 15 request for remand, and DISMISSING this action with prejudice. 16 17 DATED: January 16, 2018 18 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 19 20 21 22 23 24 25 26 27 28 17 That sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 34
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