Eva Jane Shultz v. Michael J. Astrue, No. 5:2012cv00989 - Document 28 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. (twdb)

Download PDF

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 EVA JANE SCHULTZ, 10 Plaintiff, 11 vs. 12 13 CAROLYN W. COLVIN, Acting Commissioner of Social Security,1 14 Defendant. 15 ) Case No. EDCV 12-0989-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) AFFIRMING THE COMMISSIONER ) ) ) ) ) ) ) 16 17 I. PROCEEDINGS 18 Plaintiff seeks review of the Commissioner s final decision 19 denying her application for Social Security disability insurance 20 benefits ( DIB ) and Supplemental Security Income benefits 21 ( SSI ). The parties consented to the jurisdiction of the 22 undersigned U.S. Magistrate Judge pursuant to 28 U.S.C. § 636(c). 23 This matter is before the Court on the parties cross-motions for 24 judgment on the pleadings, which the Court has taken under 25 26 1 On February 14, 2013, Colvin became the Acting 27 Commissioner of Social Security. Pursuant to Federal Rule of Civil Procedure 25(d), the Court therefore substitutes Colvin for 28 Michael J. Astrue as the proper Respondent. 1 1 submission without oral argument. For the reasons stated below, 2 the Commissioner s decision is affirmed and this action is 3 dismissed. 4 II. BACKGROUND 5 Plaintiff was born on November 29, 1953. 6 Record ( AR ) 119, 132.) 7 119.) (Administrative She has a college education. (AR 43, She worked as an instructional aide and remained on call 8 throughout the administrative proceedings as a substitute 9 teacher. 10 (AR 42, 151, 156.) On October 22, 2009, Plaintiff filed an application for DIB, 11 which the Social Security Administration treated as including an 12 application for SSI.2 (AR 132, 62.) Plaintiff alleged she had 13 been unable to work since January 1, 2009, because of scoliosis; 14 problems with her back, tailbone, shoulders, knees, and rotator 15 cuffs; cellulitis;3 asthma; allergies; gastroesophageal reflux 16 17 18 19 20 21 22 2 Although the ALJ treated Plaintiff s claim as one for 23 DIB only (AR 25), Plaintiff asserted that she also sought SSI (AR 119), and the benefits 24 40-41, 67,an application Agency treated her claim forat 1 n.1).as including for SSI (AR 62; Def. s Mot. 25 As the Court affirms the finding that Plaintiff is not disabled, the type of benefits sought is irrelevant. 26 3 Cellulitis is a bacterial infection of the skin and 27 underlying tissues that is treated with antibiotics. See Cellulitis, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ 28 cellulitis.html (last updated Aug. 26, 2013). 2 1 disease ( GERD );4 anemia; rosacea;5 and possible attention 2 deficit disorder ( ADD ) and attention deficit hyperactivity 3 disorder ( ADHD ). (AR 142, 151, 155.) After Plaintiff s 4 applications were denied, she requested a hearing before an 5 administrative law judge. (AR 62-66, 71-74, 83.) A hearing was 6 held on January 31, 2011, at which Plaintiff, who was represented 7 by counsel, testified, as did a vocational expert. (AR 36-59.) 8 In a written decision issued on February 15, 2011, the ALJ 9 determined that Plaintiff was not disabled. (AR 25-32.) On 10 April 17, 2012, the Appeals Council denied Plaintiff s request 11 for review. (AR 1-3.) She was represented by counsel during the 12 Appeals Council proceedings. (See AR 5-7, 213-16.) This action 13 followed. 14 III. STANDARD OF REVIEW 15 Pursuant to 42 U.S.C. § 405(g), a district court may review 16 the Commissioner s decision to deny benefits. The ALJ s findings 17 and decision should be upheld if they are free of legal error and 18 supported by substantial evidence based on the record as a whole. 19 § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 20 1420, 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 F.3d 21 22 23 24 25 26 27 28 4 GERD is a condition in which the lower esophageal sphincter does not close properly, allowing the contents of the stomach to leak back into the esophagus, causing irritation, heartburn, and other symptoms. See Gastroesophageal reflux disease, PubMed Health, http://www.ncbi.nlm.nih.gov/pubmedhealth/ PMH0001311/ (last updated Aug. 11, 2011). 5 Rosacea is a condition affecting the skin and sometimes the eyes. See Rosacea, MedlinePlus, http://www.nlm.nih.gov/ medlineplus/rosacea.html (last updated Oct. 11, 2013). Rosacea can cause skin redness, acne, swelling of the nose, thickening of the skin, irritated eyes, and vision problems. Id. 3 1 742, 746 (9th Cir. 2007). Substantial evidence means such 2 evidence as a reasonable person might accept as adequate to 3 support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter 4 v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 5 a scintilla but less than a preponderance. It is more than Lingenfelter, 504 6 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 7 882 (9th Cir. 2006)). To determine whether substantial evidence 8 supports a finding, the reviewing court must review the 9 administrative record as a whole, weighing both the evidence that 10 supports and the evidence that detracts from the Commissioner s 11 conclusion. 12 1996). Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. If the evidence can reasonably support either affirming 13 or reversing, the reviewing court may not substitute its 14 judgment for that of the Commissioner. Id. at 720-21. 15 IV. THE EVALUATION OF DISABILITY 16 People are disabled for purposes of receiving Social 17 Security benefits if they are unable to engage in any substantial 18 gainful activity owing to a physical or mental impairment that is 19 expected to result in death or which has lasted, or is expected 20 to last, for a continuous period of at least 12 months. 42 21 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 22 (9th Cir. 1992). 23 A. 24 The ALJ follows a five-step sequential evaluation process in The Five-Step Evaluation Process 25 assessing whether a claimant is disabled. 20 C.F.R. 26 §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 27 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). In the first 28 step, the Commissioner must determine whether the claimant is 4 1 currently engaged in substantial gainful activity; if so, the 2 claimant is not disabled and the claim must be denied. 3 §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not 4 engaged in substantial gainful activity, the second step requires 5 the Commissioner to determine whether the claimant has a severe 6 impairment or combination of impairments significantly limiting 7 her ability to do basic work activities; if not, a finding of not 8 disabled is made and the claim must be denied. 9 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a 10 severe impairment or combination of impairments, the third step 11 requires the Commissioner to determine whether the impairment or 12 combination of impairments meets or equals an impairment in the 13 Listing of Impairments ( Listing ) set forth at 20 C.F.R., Part 14 404, Subpart P, Appendix 1; if so, disability is conclusively 15 presumed and benefits are awarded. 16 416.920(a)(4)(iii). §§ 404.1520(a)(4)(iii), If the claimant s impairment or combination 17 of impairments does not meet or equal an impairment in the 18 Listing, the fourth step requires the Commissioner to determine 19 whether the claimant has sufficient residual functional capacity 20 ( RFC )6 to perform her past work; if so, the claimant is not 21 disabled and the claim must be denied. 22 416.920(a)(4)(iv). §§ 404.1520(a)(4)(iv), The claimant has the burden of proving that 23 she is unable to perform past relevant work. 24 1257. Drouin, 966 F.2d at If the claimant meets that burden, a prima facie case of 25 disability is established. Id. If that happens or if the 26 27 28 6 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). 5 1 claimant has no past relevant work, the Commissioner then 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), 416.920(a)(4)(v). 5 That determination comprises the fifth and final step in the 6 sequential analysis. §§ 404.1520, 416.920; Lester, 81 F.3d at 7 828 n.5; 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 any substantial gainful activity since January 1, 2009. (AR 27.) 11 At step two, the ALJ concluded that Plaintiff had medically 12 determinable impairments of asthma, obesity, and mild 13 degenerative disc disease but that these impairments were not 14 severe. (Id.) Accordingly, the ALJ determined that Plaintiff 15 was not disabled. (AR 32.) 16 V. RELEVANT FACTS 17 A. 18 Between May 23, 2003, and April 18, 2006, Plaintiff was seen Medical Records7 19 at West Dermatology in Redlands, primarily for treatment of 20 rosacea and verruca.8 (See, e.g., AR 129, 220, 222, 223, 224.) 21 22 7 Many of Plaintiff s medical records predate the amended 23 alleged onset date of January 1, 2009; however, as these records discussed they are detailed 24 wereWilliams v.in the ALJ s decision,866, 868 (9th Cir. here. See Astrue, 493 F. App x 2012) 25 (noting that although medical opinions that predate alleged onset 26 27 28 of disability are of limited relevance, ALJ must consider all medical opinion evidence). 8 Verruca is a type of wart. See Warts, PubMed Health, http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001888/ (last updated Nov. 20, 2012). 6 1 Plaintiff s rosacea appeared to improve with application of 2 Noritate cream9 and ingestion of tetracycline.10 3 224, 226.) (See AR 223, Her warts were removed using liquid nitrogen. (See 4 AR 219, 220, 222, 223.) 5 On August 4, 2006, Plaintiff was seen in the emergency 6 department of Verde Valley Medical Center in Cottonwood, Arizona, 7 for complaints of discomfort in her left lower leg. (AR 238.) 8 Plaintiff was diagnosed with cellulitis, given a prescription for 9 Keflex,11 and referred for a follow-up visit in California within 10 three to five days.12 11 (AR 239.) On January 30, 2008, Plaintiff was seen by nurse 12 practitioner Emmanuel Angeles at the Beaver Medical Group in 13 Yucaipa for complaints of plugged ears and nasal infection. 14 244.) (AR The consultation form reflects diagnoses of otalgia,13 15 16 17 18 19 20 9 Noritate is a brand name for metronidazole, used to treat redness and pimples caused by rosacea. See Metronidazole (On the skin), PubMed Health, http://www.ncbi.nlm.nih.gov/ pubmedhealth/PMHT0011195/?report=details (last updated Apr. 1, 2013). 10 Tetracycline, or TCN, is an antibiotic. See 21 Tetracycline, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ 22 druginfo/meds/a682098.html (last updated Sept. 1, 2010). 11 Keflex is a brand name for the antibiotic cephalexin. 23 See Cephalexin, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ 24 druginfo/meds/a682733.html (last updated Sept. 1, 2010). 25 26 27 12 Plaintiff has described a four-day hospitalization in 2006 for treatment of cellulitis (see, e.g., AR 45; Pl. s Mot. at 10), but the record reflects only same-day treatment and discharge (AR 237). 13 Otalgia 28 (27th ed. 2000). is earache. Stedman s Medical Dictionary 1287 7 1 asthma, and rhinitis.14 (Id.) 2 prescriptions are illegible. 3 The recommendations and (Id.) On April 8, 2008, Plaintiff was seen by Dr. Glenn Kerr at 4 Beaver Medical Group with complaints of a cough for more than two 5 weeks, a runny nose, and troublesome ears. (AR 243.) 6 asthma, which had been well controlled, was worse. Her (Id.) Dr. 7 Kerr assessed bilateral otitis media,15 bronchitis, and asthma and 8 prescribed Zithromax16 and Bactroban17 and refilled Plaintiff s 9 Astelin prescription.18 10 (Id.) On April 16, 2008, Plaintiff was seen by Dr. Teri Boon at 11 Beaver Medical Group for complaints of cough and congestion for 12 two weeks and fever. (AR 242.) A test for streptococcus was 13 14 15 16 14 Rhinitis is inflammation of the nasal mucous membrane. Stedman s Medical Dictionary, supra, at 1566. 17 15 Otitis media is an infection or inflammation of the 18 middle ear. See Otitis Media, NIH Pub. No. 97 4216 (Oct. 2000), available at http://www.nidcd.nih.gov/StaticResources/health/ 19 healthyhearing/tools/pdf/otitismedia.pdf. 20 16 Zithromax is a brand name for the antibiotic See Azythromycin, MedlinePlus, http://www.nlm.nih. gov/medlineplus/druginfo/meds/a697037.html (last updated Oct. 15, 2012). 21 azythromycin. 22 23 24 25 26 27 28 17 Bactroban is a brand name for mupirocin, an antibiotic used to treat skin infections. See Mupirocin, MedlinePlus, http://www.nlm.nih.gov/medlineplus/druginfo/meds/a688004.html (last updated Sept. 1, 2010). 18 Astelin is a brand name for azelastine, an antihistamine used to treat hay fever and allergy symptoms, including runny nose, sneezing, and itchy nose. See Azelastine, MedlinePlus, http://www.nlm.nih.gov/medlineplus/druginfo/ meds/a697014.html (last updated Oct. 30, 2013). 8 1 negative. (AR 245.) She was assessed as having pharyngitis19 and 2 bronchitis; the prescription given is illegible. 3 (Id.) On May 7, 2008, Plaintiff was seen by Dr. Paul Pham at the 4 Beaver Medical Group for complaints of redness in her lower 5 extremities over a couple of days. (AR 241.) Dr. Pham noted 6 that one leg showed slight erythema, the other showed edema and 7 erythema extending almost to her knee, and she had notable 8 varicose veins. (Id.) He assessed [c]ellulitis, lower 9 extremity, possible phlebitis, prescribed Keflex, and advised 10 Plaintiff to keep her leg elevated and be seen again within the 11 week. 12 (Id.) On July 25, 2008, Plaintiff was seen at West Dermatology for 13 complaint of a rash on her lower extremities. (AR 218.) 14 notes reflect a diagnosis of early cellulitis. The (Id.) 15 Plaintiff was prescribed Duricef20 and triamcinolone ointment21 and 16 instructed to elevate her legs, [a]void prolonged car travel, 17 and go to the emergency room if the condition worsened. 18 (Id.) On June 10, 2009, Plaintiff was seen by nurse practitioner 19 20 19 Pharyngitis is inflammation of the mucous membrane and 21 underlying parts of the pharynx, which links the mouth and nasal cavities to the esophagus. 22 at 1361. 23 20 24 25 26 27 28 Stedman s Medical Dictionary, supra, Duricef is the brand name for the antibiotic cefadroxil. See Cefadroxil, MedlinePlus, http://www.nlm.nih.gov/ medlineplus/druginfo/meds/a682730.html (last updated Sept. 1, 2010). 21 Triamcinolone is used to treat itching, redness, dryness, and other symptoms of various skin conditions. See Triamcinolone Topical, MedlinePlus, http://www.nlm.nih.gov/ medlineplus/druginfo/meds/a601124.html (last updated Oct. 1, 2010). 9 1 Ivana Bluhm at Redlands Community Hospital Family Clinic in 2 Redlands to obtain a prescription for Flonase.22 (AR 250.) 3 Plaintiff s Adult Health History reported that she had suffered 4 rosacea, ear-wax buildup, asthma, anemia, a pinched nerve in her 5 hip, and GERD and that her current medications were Flonase, 6 Prilosec,23 iron tablets, and albuterol24 as needed. (AR 251.) 7 Plaintiff reported to Bluhm that she could no longer afford a 8 corticosteroid inhaler25 but that her asthma was controlled 9 [with] Flonase, which could be obtained at lower cost. (Id.) 10 Bluhm assessed Plaintiff as suffering from asthma, noted that she 11 was not wheezing, and provided a prescription and paperwork to 12 enable her to obtain low-cost Flonase. (Id.) 13 14 15 16 17 22 Flonase is the brand name for fluticasone nasal spray, used to treat the symptoms of rhinitis, including sneezing and stuffy, runny, or itchy nose. See Fluticasone Nasal Spray, MedlinePlus, http://www.nlm.nih.gov/medlineplus/druginfo/ meds/a695002.html (last updated Sept. 1, 2010). 23 Prilosec is a brand name for omeprazole, used to treat 18 GERD. See Omeprazole, MedlinePlus, http://www.nlm.nih.gov/ medlineplus/druginfo/meds/a693050.html (last updated Jan. 15, 19 2013). 20 24 Albuterol is a bronchodilator, used to prevent and 21 treat wheezing, shortness of breath, coughing, and chest tightness caused by such lung diseases as asthma. See Albuterol 22 Oral Inhalation, MedlinePlus, http://www.nlm.nih.gov/ medlineplus/druginfo/meds/a682145.html (last updated Sept. 1, 23 2010). 24 25 25 26 27 28 Corticosteroid inhalers are used to prevent swelling of a patient s airways. See Chronic obstructive pulmonary disease control drugs, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ ency/patientinstructions/000025.htm (last updated May 29, 2012). Corticosteroids must be used daily to be effective. Id. Flovent, which Plaintiff reported she used twice daily to control her asthma (see AR 190), is an inhaled corticosteroid. See Chronic obstructive pulmonary disease - control drugs, supra. 10 1 On October 6, 2009, Plaintiff followed up with Bluhm. 2 249.) (AR Plaintiff complained of cellulitis but denied any fever 3 and sought refills of prescriptions for cephalexin26 and 4 metronidazole cream. (Id.) Bluhm assessed her as having 5 elevated blood pressure, cellulitis in her left lower leg, and 6 rosacea. (Id.) Bluhm instructed Plaintiff to keep a blood- 7 pressure log and bring it to her next visit, provided 8 prescriptions for cephalexin, metronidazole, and compression 9 stockings, and directed Plaintiff to elevate her leg twice daily27 10 for 10 to 15 minutes. 11 (Id.) In a November 5, 2009 letter to the Department of Social 12 Services, Bluhm emphasized that an evaluation of Plaintiff s 13 physical abilities, functional limitations, and mental 14 activities was not the focus of either of [Plaintiff s] visits 15 to the Redlands Clinic. (AR 248.) Bluhm noted, however, that 16 Plaintiff was alert and had appropriate interaction during both 17 office visit[s] and was ambulatory. 18 (Id.) On November 18, 2009, Plaintiff was seen in the emergency 19 room of Riverside County Regional Medical Center in Moreno Valley 20 for complaints of bilateral ear pain, sinus tenderness, and 21 toothache. (AR 351.) She was discharged with Tylenol and a 22 23 24 25 26 27 28 26 Cephalexin is an antibiotic used to treat pneumonia and bone, ear, skin, and urinary-tract infections. See Cephalexin, MedlinePlus, http://www.nlm.nih.gov/medlineplus/druginfo/ meds/a682733.html (last updated Sept. 1, 2010). 27 Bid is an abbreviation of the Latin expression bis in die, meaning twice a day. Stedman s Medical Dictionary, supra, at 201. 11 1 prescription for clindamycin.28 2 assessment is illegible. 3 (AR 354.) The physician s (AR 352.) On December 3, 2009, Plaintiff was seen at the RCRMC Family 4 Care Clinic by a nurse practitioner, apparently to review and 5 renew Plaintiff s medications. (AR 350.) The provider s notes 6 reported rosacea controlled with twice-daily application of 7 metronidazole cream; GERD treated with daily omeprazole; asthma 8 treated with Xopenex29 and twice-daily Flovent;30 no wheezing; and 9 pain in Plaintiff s lower back, right hip, and coccyx treated 10 with ibuprofen. 11 medications. (Id.) (Id.) No changes were made to Plaintiff s An x-ray of her lower spine was ordered, and 12 Plaintiff was told to follow up in four to six weeks. 13 (Id.) On December 7, 2009, imaging of Plaintiff s lumbar spine to 14 evaluate her complaints of pain showed degenerative change31 15 16 17 18 19 20 21 28 Clindamycin is an antibiotic. See Clindamycin, MedlinePlus, http://www.nlm.nih.gov/medlineplus/druginfo/ meds/a682399.html (last updated Oct. 1, 2010). 29 Xopenex is a brand name for levalbuterol, an inhaled medication used to prevent or relieve wheezing, shortness of breath, coughing, and chest tightness. See Levalbuterol, MedlinePlus, http://www.nlm.nih.gov/medlineplus/druginfo/ meds/a603025.html (last updated Sept. 1, 2010). 30 Flovent, like Flonase, is a brand name for fluticasone. Flovent is inhaled orally to prevent difficulty breathing, chest tightness, wheezing, and coughing caused by asthma. See Fluticasone Oral Inhalation, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ druginfo/meds/a601056.html (last updated Sept. 1, 2010). 22 (See n.22, supra.) 23 24 25 26 27 28 31 Degenerative changes in the spine cause the loss of normal structure and function. See Degenerative Back Conditions, Cleveland Clinic, http://my.clevelandclinic.org/orthopaedicsrheumatology/diseases-conditions/degenerative-back-conditions. aspx (last visited Dec. 11, 2013). Such changes indicate degenerative disc disease, also called intervertebral disc 12 1 without fracture or subluxation.32 2 (AR 254, 256.) On December 21, 2009, Plaintiff was seen in the RCRMC 3 emergency room for complaints of cough and congestion lasting 4 three days. (AR 342.) The physician explained to Plaintiff that 5 her ailment was likely viral, but she requested antibiotics and 6 was given a prescription for amoxicillin.33 (AR 343, 347.) The 7 physician s impression is recorded as URI, likely, upper 8 respiratory infection. 9 (AR 343.) On January 25, 2010, Plaintiff was seen at the RCRMC Family 10 Care Clinic for chronic back pain. (AR 338.) The physician s 11 notes appear to indicate that Plaintiff was instructed to use 12 Tylenol or Motrin with food and was referred to a physical 13 therapist. (Id.) The physician noted that if Plaintiff s pain 14 persisted, she would be given an MRI and referred to an 15 orthopedist. (Id.) She was instructed to follow up in two 16 months with her primary-care physician. 17 On February 3, 2010, Plaintiff was seen in the RCRMC 18 emergency room for a complaint of shortness of breath lasting 19 20 disease, a common musculoskeletal condition that primarily affects the back. Intervertebral disc disease, Office of Rare 21 Diseases Research (ORDR), http://rarediseases.info.nih. gov/gard/8572/intervertebral-disc-disease/resources/1 (last 22 updated Mar. 12, 2012). It is characterized by intervertebral disc herniation and/or sciatic pain (sciatica) and is a primary 23 cause of low back pain, affecting about 5% of individuals. Id.; 24 but see Degenerative Back Conditions, supra ( Nearly everyone experiences some disc degeneration after age 40. ). 25 32 26 surfaces. 27 28 Subluxation is an incomplete dislocation between joint Stedman s Medical Dictionary, supra, at 1716. 33 Amoxicillin is an antibiotic. See Amoxicillin, MedlinePlus, http://www.nlm.nih.gov/medlineplus/druginfo/ meds/a685001.html (last updated Sept. 1, 2010). 13 1 three days. (AR 328.) The physician noted that Plaintiff s 2 lungs were clear, her respiratory effort was normal, she had a 3 dry cough, and she was not wheezing, but the physician diagnosed 4 her with pneumonia. 5 ray. (AR 330.) (AR 329.) Plaintiff was given a chest x- She was discharged with prescriptions for 6 amoxicillin, albuterol, naproxen34 for pain/inflammation, and 7 Phenergan35 for her cough and an appointment at the Family Care 8 Clinic. 9 (AR 329, 331, 334.) On February 16, 2010, Plaintiff was seen in the RCRMC 10 emergency room for a complaint of difficulty breathing. 11 319.) (AR Plaintiff reported that she had experienced two asthma 12 attacks that day and some PND, or paroxysmal nocturnal 13 dyspnea.36 (Id.) She had finished her amoxicillin prescription 14 the prior day and requested a chest x-ray. (Id.) The physician 15 assessed [a]sthma exacerbation and instructed Plaintiff to 16 keep clinic appt. Thurs. (AR 320.) She was discharged with a 17 prescription for albuterol to be used every four hours. (AR 18 326.) 19 On February 18, 2010, Plaintiff was seen at the Family Care 20 21 34 Naproxen is a nonsteroidal antiinflammatory drug, or 22 NSAID, used to relieve pain, inflammation, fever, or stiffness. See Naproxen, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ 23 druginfo/meds/a681029.html (last updated Oct. 30, 2013). 24 25 26 27 28 35 Phenergan is a brand name for promethazine, used to relieve the symptoms of allergic reactions. See Promethazine, MedlinePlus, http://www.nlm.nih.gov/medlineplus/druginfo/ meds/a682284.html (last updated Jan. 1, 2011). 36 Paroxysmal nocturnal dyspnea is shortness of breath appearing suddenly at night, usually waking the patient from sleep. Stedman s Medical Dictionary, supra, at 556. 14 1 Clinic. (AR 317.) Her breathing issues were noted to have 2 resolved ; she had no coughing, shortness of breath, CP 3 (presumably, chest pain), or fever. 4 (Id.) On March 3, 2010, Plaintiff was seen in the RCRMC emergency 5 room for complaints of cough and congestion since January 2010. 6 (AR 316.) Plaintiff was assessed as having an upper respiratory 7 infection, prescribed a Z-pak37 for bronchitis, and advised to 8 rest, take fluids, and continue all medications. 9 (AR 313.) On April 19, 2010, Plaintiff was seen by nurse practitioner 10 Janet Martinez at the Family Care Clinic for issues with asthma 11 and chronic lower-back pain. (AR 310.) With respect to her 12 asthma, she was advised to continue with Flovent and albuterol 13 and to start Allegra-D38 daily. (AR 307, 310.) She was referred 14 for an MRI of her back and told to continue taking Advil for pain 15 and return in two weeks for her MRI results. 16 (AR 310.) On April 23, 2010, Plaintiff was seen in the RCRMC emergency 17 room for complaints of cellulitis on both legs. (AR 300.) The 18 physician found multiple superficial varicosities on both lower 19 legs and a few areas of redness on Plaintiff s right leg but no 20 evidence of cellulitis. (AR 301.) The notes further indicate 21 that Plaintiff exhibited normal respiratory effort and 22 23 24 25 26 27 28 37 A Z-pak is a six-day course of Zithromax, a brand name for the antibiotic azythromycin. See Azythromycin, MedlinePlus, http://www.nlm.nih.gov/medlineplus/druginfo/ meds/a697037.html (last updated Oct. 15, 2012). 38 Allegra-D is the brand name for a combination of fexofenadine and pseudoephedrine and is used to relieve seasonal allergy symptoms. See Fexofenadine and Pseudoephedrine, MedlinePlus, http://www.nlm.nih.gov/medlineplus/druginfo/meds/ a601053.html (last updated Aug. 1, 2010). 15 1 orientation. (AR 301.) The physician recorded an impression of 2 superficial thrombophlebitis39 in both legs and directed Plaintiff 3 to continue her current medications listed as albuterol, Advil, 4 Flovent, and Nexium40 (AR 300) and to follow up with the Family 5 Care Clinic. (AR 301.) Plaintiff was provided instructions for 6 home care of phlebitis, including heat, ibuprofen, frequent 7 sitting and elevation of the legs, and use of support hose. (AR 8 306.) 9 On May 17, 2010, an MRI of Plaintiff s lumbar spine showed 10 disc dessication, mild degenerative disc disease at the L4-L5, 11 moderate degenerative disc disease at L5-L6 and L6-S1, minimal 12 to mild circumferential disc bulges, and neural foramen 13 narrowing.41 (AR 292-93.) On June 4, 2010, Plaintiff was seen at 14 Riverside Family Clinic to review the results of that MRI. 15 298.) (AR The physician s notes indicate that she refuses any pain 16 17 18 19 20 21 22 23 39 Thrombophlebitis is swelling of a vein caused by a blood clot. See Thrombophlebitis, PubMed Health, http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0002098/ (last updated May 6, 2011). 40 Nexium is a brand name for esomeprazole, used to treat GERD. See Esomeprazole, MedlinePlus, http://www.nlm.nih.gov/ medlineplus/druginfo/meds/a699054.html (last updated Oct. 30, 2012). 41 Foramen or foramina or perforations 24 through a bone or a membranousare aperturesStedman s Medical structure. 25 Dictionary, supra, at 698. Narrowing of the spinal foramen, 26 27 28 which house the nerves comprising the spinal cord, can place pressure on these nerves and cause pain, numbness, or weakness. See Spinal Stenosis, PubMed Health, http://www.ncbi.nlm.nih.gov/ pubmedhealth/PMH0001477/ (last updated June 7, 2102); Herniated Disk, PubMed Health, http://www.ncbi.nlm.nih.gov/pubmedhealth/ PMH0001478/ (last updated Apr. 16, 2013). 16 1 meds but include Flexeril42 among Plaintiff s current 2 medications. 3 (AR 298-99.) On June 28, 2010, Plaintiff was seen at the Family Care 4 Clinic for a pap smear and complaints of back pain. (AR 295.) 5 Plaintiff s pain was reported to be at a level of five to six out 6 of 10 and to be located in her back and left shoulder. (Id.) An 7 entry under Current (Home) Medications for Flexeril three 8 times daily as needed was crossed out (AR 296), and although 9 Plaintiff received a renewed prescription for Nexium (AR 297), 10 there is no evidence that her back was examined or treatment 11 prescribed on this visit. 12 On December 28, 2010, Plaintiff was seen at the Family Care 13 Clinic for a complaint of right-hand tingling. (AR 359.) The 14 notes also reflect a report of shoulder pain rated at a level of 15 five out of 10. (Id.) Plaintiff complained of bilateral hand 16 numbness, more at night, and trouble gripping objects with her 17 hand. (Id.) Plaintiff was reported to have full range of 18 motion, no edema, and normal pulses in her extremities. (Id.) 19 Dr. Luther Mangoba assessed Plaintiff s hand numbness as likely 20 . . . carpal tunnel, mild, and recommended a wrist splint and 21 ibuprofen. (AR 357.)43 22 23 24 25 26 27 28 42 Flexeril is a brand name for cyclobenzaprine, a muscle relaxant. See Cyclobenzaprine, MedlinePlus, http://www.nlm.nih. gov/medlineplus/druginfo/meds/a682514.html (last updated Oct. 1, 2010). 43 In her Complaint and moving papers, Plaintiff references numerous medical records postdating the Appeals Council s denial of review. To the extent those records may relate to Plaintiff s medical condition before April 17, 2012, they are not properly before the Court because Plaintiff has not 17 1 B. 2 On October 31, 2009, Plaintiff completed a Function Report. Function Reports and Asthma Questionnaire 3 (AR 187-88.) She stated that on a typical day when I don t get 4 called to substitute teach, she prepared meals, exercised, did 5 laundry and other housework, read, watched television, worked on 6 her novel on her computer, drove, did errands, visited the 7 library to check email and do research, returned phone calls, 8 paid bills, and did other paperwork. (AR 176-77.) Plaintiff was 9 generally able to bathe and dress herself independently, relying 10 on her sister for limited assistance when Plaintiff s back hurt. 11 (AR 177.) In addition to caring for herself independently, 12 Plaintiff contributed to the care of her sister and 13 grandchildren. 14 (Id.) Plaintiff prepared three meals daily, including a hot 15 dinner for lunch and brownies. (AR 178.) She estimated that 16 meal preparation required about 30 minutes and explained that she 17 sometimes sat while preparing food to accommodate her ailments. 18 (Id.) Although Plaintiff s back, asthma, and allergies prevented 19 her from doing yardwork, she cooked, did laundry, and did light 20 cleaning daily, relying on her sister to lift heavy objects or 21 bend down to hold the dust pan. (Id.) Plaintiff stated that she 22 did errands outside the home every day and spent 30 minutes or 23 more shopping for groceries several days a week. (AR 179.) 24 25 26 27 28 shown that they are material or good cause for failing to introduce them earlier, Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985) (good cause exists if claimant could not have obtained evidence at the time of the administrative proceeding), and thus the Court declines to discuss or consider them. See Section IV.B.1, infra. 18 1 She was able to pay bills, handle a savings account, count 2 change, and use a checkbook. (Id.) Plaintiff stated that she 3 was an excellent reader and writer, doing both daily, and was a 4 fair exerciser, requiring much rest between repetitions. 5 180.) (AR She socialized with friends over the phone weekly and in 6 person about every 10 days. (Id.) Plaintiff needed 7 accompaniment on her regular trips to the library, to drop her 8 sister off at the gym, to her son s house, and to the market only 9 when she did not feel well or needed help lifting items. 10 (Id.) Plaintiff indicated that her impairments affected lifting, 11 squatting, bending, standing, walking, sitting, kneeling, 12 concentration, and following instructions. (AR 181.) She stated 13 that she could not walk or stand for sustained periods of time 14 because of her cellulitis (AR 177, 180) and that working at the 15 computer for long periods had caused her back and tailbone to 16 go[] out on me and become very painful & rendered me bedridden 17 (AR 180). She noted back problems dating to childhood (AR 183) 18 and significant pain as early as her college days (AR 177). She 19 explained that she had always had trouble with bending for any 20 prolonged period of time because it caused back pain, she was 21 unable to kneel without pain, and sitting for a prolonged period 22 of time hurt her back and tailbone. (AR 181.) She had 23 experienced a pinched nerve in her back the spring before her 24 filing (AR 186) and treated it with a heating pad and Advil (AR 25 177). 26 27 183.) Plaintiff said that exercise helped her back pain. (AR She noted, however, that [w]hen I hurt my back or it goes 28 out, I cannot do my exercises (AR 180) and that when I hurt my 19 1 back typing at the computer for long periods of time, I was 2 unable to use my AB Lounger (AR 186). She also noted that 3 although the exercise circuit at the gym worked for me, she 4 was unable to use one machine that hurt my back, delaying her 5 return to the gym for a week the time she tried it (AR 185-86). 6 The only assistive devices Plaintiff used were reading glasses 7 and, when at amusement parks, festivals, or waiting in long 8 lines, a wheelchair due to my cellulitis. 9 (AR 182.) Plaintiff had been unable to maintain a job at a Michigan 10 hotel because it required constant standing and bending and 11 another at a candy store because it required bending and lifting 12 items from low shelves. (AR 184.) She left her part-time job at 13 the Guadalupe Home for Boys in 1993, seeking room for 14 advancement, and joined the St. John s School for Boys as an 15 instructional aide. (AR 185.) She left that job because things 16 didn t seem above board and she did not wish to risk injury to 17 herself or her professional reputation. 18 (Id.)44 Plaintiff stated that [m]y asthma is fairly well controlled 19 with my Flo-Vent steroid inhaler . . . which . . . keep[s] my 20 asthma under control. (AR 187.) She noted a history of 21 respiratory infections and challenges in keeping her airway 22 clear, however. (Id.) She also noted that she suffered from 23 GERD and sometimes could not afford the Prilosec she needed daily 24 to treat it. (AR 188.) Plaintiff stated that she had irritable- 25 26 27 28 44 At the hearing she testified that the last time she had a full-time job was in the mid 80s ; she left it to care for her disabled son. (AR 39.) 20 1 bowel syndrome ( IBS )45 which could be triggered by coffee, 2 popcorn, other foods, and antibiotics and can send me running to 3 the toilet, which interferes with my trying to substitute teach. 4 (Id.) 5 Plaintiff indicated trouble with concentration but stated 6 that I can focus well for about an hour at a time before 7 needing a break. (AR 181.) She finished what she started for 8 the most part but needed to take breaks when she became 9 fatigued. (Id.) Following written instructions was one of my 10 weak areas, going on back to childhood, and Plaintiff struggled 11 with spoken instructions involving more than two steps unless she 12 wrote them down. (Id.) She was a responsible student and 13 tenant, however, and handled stress [f]airly well. (AR 182.) 14 She did not like changes in routine but could handle them if 15 someone is patient with willing to teach me the new way of doing 16 things. 17 (Id.) On November 2, 2009, Plaintiff s sister Nancy J. Block 18 completed a Function Report on Plaintiff s behalf. (AR 168-75.) 19 Block indicated that Plaintiff s daily activities included 20 bathing herself, preparing meals, doing housework and errands, 21 visiting the library and the market, paying bills, watching 22 television, and reading. (AR 168, 170.) Plaintiff drove her 23 sister to complete her errands and visit the gym and cared for 24 25 26 27 28 45 IBS is a disorder that leads to abdominal pain and cramping, changes in bowel movements, and other symptoms. Irritable bowel syndrome, PubMed Health, http://www.ncbi.nlm. nih.gov/pubmedhealth/PMH0001292/ (last updated July 22, 2011). It is distinct from inflammatory bowel disease ( IBD ), which includes Crohn s disease and ulcerative colitis, both of which involve abnormal bowel structure. (Id.) 21 1 Baby April apparently her granddaughter (see AR 177) with 2 Block s assistance (AR 169). 3 Block stated that her sister s disabilities affected 4 lifting, squatting, bending, standing, walking, sitting, 5 kneeling, and following instructions. (AR 173.) Plaintiff used 6 to be able to stand longer and drive greater distances and could 7 no longer bend over for very long but needed help only when her 8 back or knees went out. (AR 169.) Plaintiff sometimes needed to 9 sit to prepare meals and needed her sister s help with activities 10 that required lifting heavy items or bending over. (AR 170.) 11 Plaintiff used a wheelchair for family trips to amusement parks 12 and festivals because of her cellulitis & bad back & knees. 13 (AR 174.) 14 Nonetheless, Plaintiff went to the market two or three times 15 a week and visited her son s house and the library almost every 16 day. (AR 171-72.) She was able to pay bills, take care of her 17 personal needs, take her medicines with no reminders, and finish 18 what she started but sometimes had to check and recheck 19 directions or write them down. (AR 170-71, 173.) She exercised 20 when her back was not bothering her, spoke on the phone to 21 friends about twice a week, and visited friends and her 22 grandchildren each about twice a month. 23 (AR 172.) On November 6, 2009, Plaintiff completed an Adult Asthma 24 Questionnaire. (AR 189-90.) She stated that the frequency of 25 her asthma attacks varied, at worst occurring once a month or 26 more, and that she was able to remedy attacks with two or more 27 puffs from an albuterol inhaler. 28 Flovent inhaler twice daily. (AR 189.) (AR 190.) 22 She also used a Plaintiff had not 1 required emergency care or hospitalization for asthma treatment. 2 (Id.) She had been seen most recently for asthma on June 10 and 3 October 6, 2009, to obtain Flovent refills. 4 C. 5 Assessments of State Medical Consultants 1. 6 (AR 189.) Dr. Eriks On December 28, 2009, internist Dr. Sandra Eriks of the Alto 7 Medical Group in San Bernardino reported the results of her 8 internal-medicine evaluation of Plaintiff, performed at the 9 request of the Department of Social Services. (AR 258-62.) Dr. 10 Eriks noted that her report was based on information provided by 11 Plaintiff, who is considered a marginal historian, and on her 12 medical records. 13 (AR 258.) Plaintiff reported that she lived with her mentally disabled 14 sister, cared for three young grandchildren and did all the 15 cooking, cleaning, shopping, laundry, and driving. (Id.) She 16 stated that [s]he also works part time as a substitute teacher. 17 (Id.) She listed her current medications as Flovent, albuterol, 18 Nexium, Noritate cream, triamcinolone cream, iron tablets, and 19 Astelin spray. 20 (AR 259.) Plaintiff stated that although she had suffered from asthma 21 for 10 years, her breathing has been stable for many years and 22 she did not suffer from dyspnea46 with exertion or wake with 23 shortness of breath. (Id.) Plaintiff reported that she had 24 suffered low-back pain most of her life and that the pain 25 worsened in April 2009, when her back went out and she pinched a 26 27 28 46 Dyspnea is a subjective difficulty or distress in breathing that normally occurs during exertion or at altitude. Stedman s Medical Dictionary, supra, at 556. 23 1 nerve. (AR 258.) She reported that the pain sometimes radiated 2 into her right hip or shoulder blades, was worsened by standing 3 or bending over, and was improved by massage, chiropractic care, 4 and bed rest. (Id.) Plaintiff reported intermittent pain in 5 both knees but denied morning stiffness and demonstrated full 6 range of motion, stability, and no tenderness or crepitation47 in 7 her knees. 8 (AR 258, 260-61.) Dr. Eriks reported that her findings upon physical 9 examination were based upon formal testing as well as the 10 doctor s observations. (AR 259.) Plaintiff s blood pressure was 11 122/80, her pulse was 78 beats per minute, her weight was 212 12 pounds, and her height was 63 and a half inches. (Id.) 13 Plaintiff s right grip strength was recorded as 45/60/45 and her 14 left as 45/50/35, but the medical assistant noted marginal 15 effort. 16 (Id.) Dr. Eriks found Plaintiff to be well developed, well 17 nourished, and with good hygiene. (AR 260.) She noted no 18 abnormalities upon examination of Plaintiff s head, eyes, nose, 19 mouth, throat, ears, neck, and chest. (Id.) Plaintiff s lungs 20 demonstrated [g]ood air movement, normal symmetric breath 21 sounds, [n]o rales or rhonchi, 48 and an [e]xpiratory phase 22 23 24 25 26 27 28 47 Crepitation is noise or vibration produced by the rubbing of bone or irregular degenerated cartilage surfaces together and can indicate osteoarthritis or other conditions. Stedman s Medical Dictionary, supra, at 424. 48 Rales and rhonchi are sounds detected on auscultation of breath sounds. See Stedman s Medical Dictionary, supra, at 1507. Rales is a nonspecific term that can refer to either rhonchi or crepitations (see n.47, supra). See Stedman s Medical Dictionary, supra. A rhonchus is a sound with a musical pitch 24 1 within normal limits. (Id.) Plaintiff s chest reveals normal 2 anterior/posterior diameter, normal air movement with normal 3 expiratory phase and no wheezing. (AR 261.) Dr. Eriks noted 4 that Plaintiff had not been hospitalized or treated at an 5 emergency facility for asthma in the past year. 6 Plaintiff s pulse was normal. (Id.) (Id.) Examination of her 7 heart and abdomen revealed no abnormalities. (Id.) Dr. Eriks s 8 examination of Plaintiff s back revealed no paraspinous muscular 9 tenderness or spasm, back motion within normal limits, and 10 good strength, adequate sensation and no reflex abnormalities. 11 (Id.) Plaintiff demonstrated full range of motion in her 12 shoulders, hips, knees, ankles, and feet. (AR 260-61.) Dr. 13 Eriks noted Plaintiff s complaint of rather diffuse body pain 14 but reported no abnormalities to explain such discomfort. (AR 15 261.) 16 Dr. Eriks noted Plaintiff s history of cellulitis and 17 reported that on the day of examination, Plaintiff had good 18 circulation, multiple small varicosities in both lower 19 extremities, and no evidence of active infection. (AR 260.) 20 Dr. Eriks noted that there was no tenderness, warmth or erythema 21 of any joints and no clubbing, cyanosis or edema. 22 (Id.) Noting that her examination of Plaintiff was limited to an 23 assessment of alleged disability, Dr. Eriks opined that claimant 24 has no restrictions in the areas of lifting, carrying, standing, 25 walking, or sitting, [n]o special limitations in standing, 26 27 caused by air passing through bronchi that are narrowed by 28 inflammation, spasm of smooth muscle, or presence of mucus. at 1568. 25 Id. 1 walking or sitting, and [n]o postural, manipulative, visual, 2 communicative or environmental limitations. 3 4 2. (AR 262.) Dr. Andia The same day, Plaintiff was seen by Dr. Ana Maria Andia of 5 Alto Medical Group for a comprehensive psychiatric evaluation. 6 (AR 265.) Dr. Andia s assessment was based on information 7 provided by Plaintiff, whom she found to be a reasonable 8 historian, as the medical records available for the doctor s 9 review reflected no psychiatric analysis or treatment. (Id.) 10 Plaintiff confirmed that she had never been hospitalized for or 11 received outpatient psychiatric treatment. 12 (AR 266.) Plaintiff reported that she was currently employed as a 13 substitute teacher, remained on call, and last worked on 14 December 9, 2009. 15 with coworkers. (AR 267.) (Id.) She stated that she got along well Plaintiff reported that she managed her 16 own personal care and was able to drive. (Id.) She described 17 [o]utside activities as taking her grandchildren to the park, 18 exercising on an elliptical machine, and occasional trips to the 19 beach. (Id.) Her hobbies included reading, writing, and 20 watching educational programs on TV. (Id.) 21 bills, handle cash, and go out alone. 22 relationships with family and friends. She was able to pay (Id.) (Id.) She reported good She said she 23 occasionally had difficulty focusing her attention but had no 24 difficulty completing household tasks or making decisions. 25 (Id.) Dr. Andia s notations of Plaintiff s daily activities appear 26 to be taken from Plaintiff s own statements in her Function 27 Report. (Compare AR 268 with AR 176.) Dr. Andia found Plaintiff 28 to be neatly and casually groomed, capable of good eye contact 26 1 and good interpersonal contact, generally cooperative, able 2 to volunteer information spontaneously, and apparently genuine 3 and truthful. (AR 268.) Dr. Andia noted that Plaintiff did not 4 appear to be under the influence of drugs or alcohol. 5 (Id.) Plaintiff complained of lifelong difficulties with 6 forgetfulness, directions, and concentration, problems she 7 described as mild and of daily occurrence. (AR 266.) Plaintiff 8 stated that her ability to work has not been affected by these 9 symptoms and that [h]er symptoms do not limit her daily 10 activities. (Id.) Plaintiff reported that she believed she 11 might have ADD because it runs in her family but had never been 12 treated for the condition. (AR 270.) Although Dr. Andia s 13 diagnostic impression noted [a]ttention deficit disorder by 14 history (id.), her mental-status examination of Plaintiff 15 revealed normal functionality (see AR 268-70), and she opined 16 that the claimant has no [psychiatric] condition that needs 17 treatment at this time (id.). 18 19 3. Dr. Brooks On January 12, 2010, medical consultant Dr. R.E. Brooks, a 20 psychiatrist, completed a Psychiatric Review Technique, 21 indicating a finding of no medically determinable impairment. 22 (AR 273, 283.) Dr. Brooks explained that although ADHD ran in 23 Plaintiff s family, she had never been diagnosed with the 24 disorder, and no Axis I or Axis II diagnosis had been 25 established.49 (AR 283.) 26 27 28 49 The DSM-IV classifies mental disorders into axes. See Ramesh Shivani, R. Jeffrey Goldsmith & Robert M. Anthenelli, Alcoholism and Psychiatric Disorders, Nat l Inst. on Alcohol 27 1 2 4. Dr. Scott The same day, Dr. C. Scott, a gynecologist, prepared a Case 3 Analysis. (AR 284-86.) Dr. Scott reviewed records from Beaver 4 Medical Group, Redlands Family Clinic, Ramesh Bansal,50 Redlands 5 Community Hospital, Verde Valley Medical Center, and Alto Medical 6 Group. (AR 284.) Dr. Scott summarized as significant objective 7 findings the reports from Redlands Family Clinic and Alto 8 Medical Group (AR 284-85) and found that Plaintiff had no 9 restrictions on standing, walking, or sitting and no postural, 10 manipulative, visual, communicative, or environmental limitations 11 (AR 285). Dr. Scott recommended that Plaintiff s physical and 12 mental complaints be deemed nonsevere. 13 14 5. (Id.) Dr. Balson On March 20, 2010, P.M. Balson, a psychiatrist, approved a 15 psychiatric Case Analysis that reconsidered Plaintiff s claim of 16 possible ADD or ADHD and affirmed Dr. Brooks s January 12, 2010 17 finding that Plaintiff had no medically determinable impairment. 18 (AR 287-88.) 19 20 6. Dr. Schwartz On March 22, 2010, Dr. L. Schwartz, an internist, approved a 21 Case Analysis that reviewed and affirmed Dr. Scott s January 12, 22 2010 finding that Plaintiff s impairments were not severe. (AR 23 24 Abuse and Alcoholism (Nov. 2002), http://pubs.niaaa.nih.gov/ 25 26 27 publications/arh26-2/90-98.htm. Axis II disorders are personality disorders; other mental disorders fall into Axis I. Id. Dr. Brooks presumably references Dr. Andia s report, which includes an axis-based assessment (AR 270), as there are no other psychiatric assessments in the record (see AR 265). 50 28 Bansal toIt is unclear which record Dr. Scott meant Ramesh indicate. 28 1 289.) 2 D. 3 At the January 20, 2010 hearing before the ALJ, Plaintiff Hearing Testimony 4 testified that she had a bachelor s degree in English and 5 creative writing and an emergency teaching permit.51 (AR 43.) 6 She last worked as a substitute teacher for two half days in 7 April or June of 2010, and then when I did a full day I started 8 having problems with my legs, circulation again and my back hurt 9 me so. (AR 39.) She testified that she stopped substitute 10 teaching because of problems with my back and my legs but also 11 because they started cutting back hours because of the teacher 12 cutbacks. (AR 41.) She was still on the books as a 13 substitute teacher but claimed she then had no phone at which she 14 could be contacted were work available. (AR 42.) Plaintiff 15 testified that her most recent full-time job was in the mid16 1980s, a position she left because [m]y son had disabilities. 17 (AR 39; but see AR 185 (describing full-time position in 1993).) 18 When asked whether she was receiving any financial assistance, 19 Plaintiff stated that she was living with my sister who receives 20 my father s earned Social Security and Medicare and I help her. 21 (AR 43.) Plaintiff explained that her sister can t drive and 22 she lives with me in my little travel trailer. 23 (Id.) Plaintiff testified that she could not work as a substitute 24 25 26 27 28 51 An emergency teaching permit authorize[s] the holder to serve as [a] day-to-day substitute teacher[] in any classroom, including preschool, kindergarten, and grades 1-12. See Substitute Teaching, Commission on Teacher Credentialing, http://www.ctc.ca.gov/credentials/creds/substitute.html (last updated Nov. 26, 2007). 29 1 teacher or in any other position because of problems with her 2 feet and IBS. (AR 44-45.) She explained that because of very 3 poor circulation and bouts at times with cellulitis, she 4 needed to rest and elevate her feet hourly and that her IBS 5 required unpredictable trips to the bathroom. (AR 45.) 6 Plaintiff s problems with her feet affected both legs when she 7 had been standing for too long, which Plaintiff clarified meant 8 four to five hours, or when she drove a long distance, such as on 9 a trip of six hours. (AR 46.) She testified that in August 10 2006, she was hospitalized for four days for treatment of 11 cellulitis following a cross-country road trip (id.), although 12 the record contains no evidence to support this. At the time of 13 the hearing, Plaintiff testified that she wore compression 14 stockings to prevent cellulitis and that I haven t had it in a 15 while. 16 (AR 47.) Plaintiff stated that she continued to suffer from pain and 17 problems with circulation and treated those issues by elevating 18 her feet on and off through the day for 30 minutes to an hour. 19 (AR 47-48.) She clarified that she had to elevate her feet only 20 when having problems with them. (AR 48.) She rarely had 21 problems if I don t stand all day, but [i]f I m standing and 22 [substitute teaching] then I ve got to elevate. 23 (Id.) Plaintiff testified that she also suffered pain in her back 24 and tailbone. (AR 50.) She described significant pain following 25 car trips of five to six hours. (Id.) More generally, Plaintiff 26 testified that her back and tailbone issues required that she 27 shift position when sitting every so often . . . depend[ing on] 28 how comfortable the chair is. (Id.) 30 She estimated that she 1 could sit for about an hour before needing to get up and walk 2 around [b]ecause my back gets stiff and sometimes there s pain, 3 including in her tailbone. (AR 51.) She estimated that she 4 could stand for 30 minutes to an hour without pain and could walk 5 for about 30 minutes. (AR 51-52.) She alleviated back pain from 6 standing or sitting by reclining in bed or on a lounge chair. 7 (AR 52.) 8 Plaintiff testified that she had injured both knees in falls 9 years ago and that the injuries limited her ability to do 10 certain exercises, such as lunges and squats. (AR 53-54.) 11 Plaintiff stated that she also suffered from carpal tunnel 12 syndrome in her right hand (AR 43, 50), which caused numbness 13 that interfered with her writing, limited her ability to reach 14 overhead, and occasionally caused her to drop things (AR 49-50). 15 Plaintiff stated that she accommodated her back limitations 16 at home by, for instance, preparing meals while seated or while 17 standing and leaning into the counter slightly. (AR 52.) She 18 also sought assistance with tasks that required her to bend over. 19 (AR 53.) She generally did not need help with personal care and 20 had developed ways to dress and bathe herself to accommodate 21 limitations caused by her back pain. 22 if she had trouble. (AR 54.) Her sister helped (Id.) 23 VI. DISCUSSION 24 Plaintiff alleges that the ALJ erred in failing to properly 25 assess Plaintiff s subjective complaints and the relevant medical 26 evidence of record. (Pl. s Mot. at 2-3.) 27 warranted. 28 31 Remand is not 1 A. 2 3 The ALJ Did Not Err in Assessing Plaintiff s Credibility Plaintiff argues that the ALJ improperly evaluated her 4 subjective complaints of pain in her back, tailbone, and joints. 5 (Pl. s Mot. at 5.) Specifically, Plaintiff contends that her 6 allegations of pain are supported by the x-rays and MRI of her 7 back; medical records in which she was seen for complaints of 8 back pain and prescribed medication for pain relief; her alleged 9 scoliosis, history of pinched nerves, and falls on her knees; and 10 alleged diagnoses of arthritis and fibromyalgia and prescription 11 of a cane. 12 13 (Pl. s Mot. at 5-7.) 1. Remand is not warranted. Applicable law An ALJ s assessment of pain severity and claimant 14 credibility is entitled to great weight. See Weetman v. 15 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 16 F.2d 528, 531 (9th Cir. 1986). [T]he ALJ is not required to 17 believe every allegation of disabling pain, or else disability 18 benefits would be available for the asking, a result plainly 19 contrary to 42 U.S.C. § 423(d)(5)(A). Molina v. Astrue, 674 20 F.3d 1104, 1112 (9th Cir. 2012) (internal quotation marks 21 omitted). In evaluating a claimant s subjective symptom 22 testimony, the ALJ engages in a two-step analysis. 23 Lingenfelter, 504 F.3d at 1035-36. See First, the ALJ must 24 determine whether the claimant has presented objective medical 25 evidence of an underlying impairment [that] could reasonably be 26 expected to produce the pain or other symptoms alleged. 27 1036 (internal quotation marks omitted). Id. at If such objective 28 medical evidence exists, the ALJ may not reject a claimant s 32 1 testimony simply because there is no showing that the impairment 2 can reasonably produce the degree of symptom alleged. Smolen v. 3 Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) (emphasis in 4 original). When the ALJ finds a claimant s subjective complaints 5 not credible, the ALJ must make specific findings that support 6 the conclusion. 7 Cir. 2010). See Berry v. Astrue, 622 F.3d 1228, 1234 (9th Absent affirmative evidence of malingering, those 8 findings must provide clear and convincing reasons for 9 rejecting the claimant s testimony.52 Lester, 81 F.3d at 834. If 10 the ALJ s credibility finding is supported by substantial 11 evidence in the record, the reviewing court may not engage in 12 second-guessing. Thomas v. Barnhart, 278 F.3d 947, 959 (9th 13 Cir. 2002). 14 2. 15 Discussion As the ALJ noted, his assessment of Plaintiff s subjective 16 complaints was largely consistent with her own statements. 17 29.) (AR Although Plaintiff asserts that the record supports her 18 claims of severe pain in her back and tailbone and greatly 19 limited daily activities on account of her degenerative disc 20 disease53 (Pl. s Mot. at 5-6), her own submissions and testimony 21 22 23 24 25 26 27 28 52 Dr. Eriks s report that Plaintiff demonstrated marginal effort on a grip test (AR 259) may be evidence of malingering that would relieve the ALJ of the burden of providing clear and convincing reasons for discounting Plaintiff s credibility. Lester, 81 F.3d at 834; Bagoyan Sulakhyan v. Astrue, 456 F. App x 679, 682 (9th Cir. 2011). Nevertheless, as discussed herein, the ALJ provided clear and convincing reasons for not crediting Plaintiff s subjective symptom testimony. 53 Plaintiff s critique includes assertions of significant pain and physical limitations attributable to alleged arthritis and fibromyalgia. (Pl. s Mot. at 6-7.) She provided no evidence 33 1 belie her claims of disabling pain. The ALJ noted that although 2 Plaintiff had not engaged in substantial gainful activity since 3 the alleged disability date (AR 27), she remained on the active 4 call list for substitute teachers (AR 29; see AR 42, 176, 258). 5 Plaintiff stated that she not only was able to care for her own 6 needs but contributed to the care of her sister and three young 7 grandchildren. (AR 177, 258.) The typical day Plaintiff 8 described in her Function Report reflected significant activity, 9 including preparing multiple meals, doing housework, exercising, 10 driving, completing such errands outside the home as shopping for 11 groceries a few times a week, reading, using a computer, 12 researching and writing a novel, returning phone calls, and 13 addressing bills and other paperwork. (AR 179, 187; see also AR 14 179 ( I go outside everyday and do my errands. ), 178 ( I wash 15 and dry laundry daily, as well as cook. I do light cleaning 16 daily. (emphasis in original)), 258 (Plaintiff does all of the 17 cooking, cleaning, shopping, laundry, and driving ).) Plaintiff 18 stated that she rarely required assistance with these tasks. 19 54, 178, 180.) (AR Although Plaintiff argues in her response to 20 Respondent s cross-motion for judgment on the pleadings that she 21 in fact does these things irregularly (Pl. s Resp. at 21-22), her 22 submissions and testimony before the ALJ and Appeals Council 23 24 of these ailments in her submissions and testimony below. As 25 discussed further in Section VI.B.1, infra, the alleged diagnoses 26 27 she describes in her moving papers postdate the decisions of the ALJ and Appeals Council and do not merit remand. See 42 U.S.C. § 405(g) (requiring showing of good cause and materiality before new evidence may be considered). 28 34 1 indicated otherwise. 2 A specific finding that a claimant spends a substantial part 3 of her day engaged in pursuits involving the performance of 4 physical functions transferable to the work setting may be 5 sufficient to discredit her allegations. Morgan v. Comm r of 6 Social Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999); Thomas, 7 278 F.3d at 959. Here, the record supported the ALJ s express 8 finding that Plaintiff s daily activities, and her own statements 9 concerning those activities, were inconsistent with allegations 10 of constant, completely disabling pain. Performance of routine 11 household tasks (cleaning, cooking, laundry, billpaying, 12 childcare) and personal care; driving, shopping, and performing 13 other errands outside the house; and performing research at the 14 library are activities that involve functions or skills that may 15 be transferred to the workplace. See Morgan, 169 F.3d at 600 16 (ability to fix meals, do laundry, work in yard, and occasionally 17 care for friend s child were evidence of ability to work because 18 they reflected participation for substantial part of day in 19 pursuits involving performance of physical functions transferable 20 to work setting). That Plaintiff has adapted her performance of 21 these activities to accommodate her alleged ailments does not 22 undermine the ALJ s finding that her daily activities were 23 inconsistent with her alleged severe disabilities. See Molina, 24 674 F.3d at 1113 ( Even where those activities suggest some 25 difficulty functioning, they may be grounds for discrediting the 26 claimant s testimony to the extent that they contradict claims of 27 a totally debilitating impairment. ); Osenbrock v. Apfel, 240 28 F.3d 1157, 1166-67 (9th Cir. 2001) (noting that ALJ properly 35 1 found claimant s self-imposed limits on daily activities did not 2 support alleged claims of disability). 3 Indeed, Plaintiff s descriptions of her back pain and 4 resultant limitations themselves suggest the pain was not so 5 great as to significantly limit her activities. She alleged that 6 her back pain restricted her sitting but explained that she 7 merely needed to shift position [e]very so often . . . 8 depend[ing on] how comfortable the chair is and to get up and 9 move around after about an hour because of stiffness and 10 sometimes pain. (AR 50-51.) She described significant 11 sitting-related back pain only following car trips of five to six 12 hours. (AR 46.) Moreover, among the types of limitations 13 detailed by Plaintiff were accommodations to her physical-fitness 14 activities necessitated by her alleged disabilities. (See, e.g., 15 AR 180 ( When I hurt my back or it goes out, I cannot do my 16 exercises. ), 186 ( [W]hen I hurt my back typing at the computer 17 for long periods of time, I was unable to use my AB Lounger. ), 18 183 ( exercise helps a little with back issues), 185-86 19 (Plaintiff able to complete exercise circuit at gym except one 20 machine that hurt my back, delaying her return to gym for a 21 week), 53-54 (knee injuries limited her ability to do certain 22 exercises, such as lunges and squats).) These descriptions, 23 along with Plaintiff s description of her daily activities, 24 undermine Plaintiff s allegation that because of back issues she 25 had to limit standing to 30 minutes to an hour and walking to 26 about 30 minutes. (AR 50-52.) Nor are these alleged limitations 27 consistent with Plaintiff s other submissions and statements. 28 (See AR 179 (Plaintiff regularly spends 30 minutes or more 36 1 shopping at supermarket), 46 (Plaintiff could have problems 2 after a six-hour drive), id. (in discussion of cellulitis, 3 standing too long meant four to five hours).) 4 Moreover, Plaintiff was able to accommodate these 5 limitations in completing tasks at home. (AR 52, 54.) She 6 generally was able to alleviate any back pain through 7 conservative self-treatment, such as reclining, massage, 8 chiropractic care, and bed rest. (AR 52, 258.) See Parra, 481 9 F.3d at 751 (noting that evidence of conservative treatment is 10 sufficient to discount a claimant s testimony regarding severity 11 of an impairment ). 12 The ALJ also provided a clear and convincing reason for 13 rejecting Plaintiff s subjective symptom testimony in that it was 14 inconsistent with the medical evidence. (AR 30-31.) See 15 Carmickle v. Comm r of Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th 16 Cir. 2008) ( Contradiction with the medical record is a 17 sufficient basis for rejecting the claimant s subjective 18 testimony. ); Lingenfelter, 504 F.3d at 1040 (in determining 19 credibility, ALJ may consider whether the alleged symptoms are 20 consistent with the medical evidence ); Burch v. Barnhart, 400 21 F.3d 676, 681 (9th Cir. 2005) ( Although lack of medical evidence 22 cannot form the sole basis for discounting pain testimony, it is 23 a factor that the ALJ can consider in his credibility 24 analysis. ); Kennelly v. Astrue, 313 F. App x 977, 979 (9th Cir. 25 2009) (same). Although Plaintiff testified that she must limit 26 her standing to one hour and her walking to 30 minutes on account 27 of her back pain, none of the medical evidence reflects any such 28 limitations. Dr. Eriks s physical examination of Plaintiff 37 1 revealed no paraspinous muscle tenderness or spasm, back motion 2 within normal limits without evidence of radiculopathy, good 3 strength, adequate sensation and no reflex abnormalities (AR 4 261), leading her to opine that Plaintiff had no physical 5 limitations attributable to her alleged impairments (AR 262). 6 The record contained no medical evidence of Plaintiff s alleged 7 scoliosis, pinched nerves, knee injuries, arthritis, 8 fibromyalgia, or prescription of a cane. (See Pl. s Mot. at 5- 9 6.) 10 Moreover, as the ALJ noted (AR 31), although medical records 11 reflected Plaintiff s complaints of back pain, her treatment was 12 conservative, consisting of two orders for imaging, one referral 13 for physical therapy, and recommendations of medication for pain 14 (AR 310, 338, 350, 357). See 20 C.F.R. §§ 404.1529(c)(3)(iv)- 15 (v), 416.929(c)(3)(iv)-(v) (ALJ may consider effectiveness of 16 medication and treatment in evaluating severity and limiting 17 effects of impairment); Warre v. Comm r Soc. Sec. Admin., 439 18 F.3d 1001, 1006 (9th Cir. 2006) ( Impairments that can be 19 controlled effectively with medication are not disabling for the 20 purpose of determining eligibility for SSI benefits. ). Imaging 21 of Plaintiff s spine demonstrated mild to moderate 22 degenerative disc disease. (AR 292-93; see also AR 254, 256.) 23 But even the physician who reviewed Plaintiff s MRI results 24 recommended that she treat her back pain primarily with 25 medication. (AR 298; see also AR 338 (recommendation of over- 26 the-counter pain medication, referral for physical therapy, 27 instruction to follow up with primary-care physician), 310 28 38 1 (referral for MRI, recommendation to treat pain with Advil).)54 2 Thus the ALJ properly found that although Plaintiff s 3 ailments could reasonably be expected to produce the symptoms she 4 alleged, her daily activity level, medical records, and 5 conservative treatment were inconsistent with her complaints of 6 severe and disabling pain. (AR 30-31.) Because the ALJ s 7 credibility finding is supported by substantial evidence, the 8 Court may not engage in second-guessing. 9 959. Thomas, 278 F.3d at Plaintiff is not entitled to reversal on this basis. 10 B. 11 Plaintiff proffers evidence not before the ALJ or Appeals The ALJ Properly Evaluated the Medical Evidence 12 Council and contends that the ALJ erred in relying heavily on Dr. 13 Eriks s opinion, discounting Plaintiff s sister s Function 14 Report, failing to deem severe Plaintiff s degenerative disc 15 disease and cellulitis, and failing to thoroughly examine her 16 medical records and properly consider the combined effect of her 17 impairments upon her ability to work. (Pl. s Mot. at 3.) Remand 18 is not warranted. 19 54 Plaintiff explains at length why she elected to 20 only ibuprofen and not the stronger Flexeril that had beentake 21 prescribed. (Pl. s Resp. at 13, 19.) It does not appear that she ever proffered these explanations to the ALJ or Appeals 22 Council, and thus they are not properly before this Court on review. See Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985) 23 (role of reviewing court is to determine whether substantial the record benefits). 24 evidence inFlexeril is supports decision to denynarcotic painIn any event, a muscle relaxant, not a 25 medication, so her explanation that she was afraid of becoming 26 27 28 dependent on it is not credible. She also claims not to have been able to take it because it was so strong that she could not then safely drive home from the doctor, but she does not explain why she could not simply have waited to take the Flexeril, which is prescribed in pill form (see Cyclobenzaprine, supra, n.42), once she arrived home. 39 1 2 1. Plaintiff s new evidence does not warrant remand In her Complaint, Motion, and Response to Defendant s Cross- 3 Motion, Plaintiff alleges several medical visits and diagnoses 4 for which no evidence exists in the record, including diagnoses 5 not raised before the ALJ or the Appeals Council. (See, e.g., 6 Pl. s Mot. at 6 (alleging 2012 diagnosis of arthritis in various 7 joints); id. at 7 (alleging Sept. 28, 2012 diagnosis of 8 fibromyalgia); id. (describing physical therapy in early 2012 9 during which my therapist prescribed a cane ).) Plaintiff 10 attached to her Complaint a record of her June 12, 2012 visit to 11 Dr. Gina Tavassoli at the Family Care Clinic and a Physical 12 Residual Functional Capacity Questionnaire completed by Dr. 13 Tavassoli on May 18, 2011 (Compl. Ex. 1), neither of which was 14 before the ALJ or the Appeals Council. Plaintiff contends that 15 her delay in submitting the latter document arose from Dr. 16 Tavassoli s departure from the clinic and the leave of absence of 17 the doctor who saw Plaintiff at the clinic following Dr. 18 Tavassoli s departure. (Compl. at 5.) Although Plaintiff was 19 represented by counsel when Dr. Tavassoli filled out the 20 Questionnaire,55 Plaintiff never submitted it to the Appeals 21 Council, which was still considering her appeal. (See AR 5-7, 22 213-16.) 23 To the extent Plaintiff seeks consideration of the documents 24 attached to her Complaint, her motion is denied.56 Sentence six 25 26 55 27 56 28 She now represents herself. Plaintiff does not appear to seek remand on the basis of medical visits and alleged diagnoses for which she has provided descriptions but no records. For this reason, the Court 40 1 of 42 U.S.C. § 405(g) provides that new evidence warrants remand 2 only if it is material and there exists good cause for its late 3 submission. New evidence is material if it bear[s] directly and 4 substantially on the matter in dispute and if there is a 5 reasonable possibility that the new evidence would have changed 6 the outcome of the . . . determination. Booz v. Sec y of Health 7 & Human Servs., 734 F.2d 1378, 1380 (9th Cir. 1984) (internal 8 quotation marks and emphasis omitted). In order to be material, 9 the proffered evidence must relate to the relevant time period. 10 See Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001) 11 (finding new evidence not material when it pertained to 12 disability claimant did not have at time of administrative 13 proceedings). Good cause exists if new information surfaces 14 after the Commissioner s final decision and the claimant could 15 not have obtained that evidence at the time of the administrative 16 proceeding. Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985). 17 A claimant does not meet the good-cause requirement by merely 18 obtaining a more favorable medical report once her claim has been 19 denied; she must demonstrate that the new evidence was 20 unavailable earlier. 21 Mayes, 276 F.3d at 463. The June 12, 2012 record attached to Plaintiff s Complaint 22 appears to reflect an appointment to follow up on Plaintiff s 23 response to treatment for cellulitis. (Compl. Ex. 1 at 1 ( 6 24 week f/u ), 2 (assessment reflects [c]ellulitis resolved and 25 additionally assesses chronic [d]iarrhea ).) Although germane 26 27 does not consider her allegations that she was not able to have a 28 colonoscopy performed or see a rheumatologist earlier because of insurance issues. (Pl. s Mot. at 7; Compl. at 7.) 41 1 to Plaintiff s allegations, the document, which evidences only 2 conservative treatment and indicates that Plaintiff s pain was 3 0 on a scale of 0 to 10 (id. at 2), could not reasonably have 4 affected the outcome of the case. 5 Warre, 439 F.3d at 1006. Cf. Parra, 481 F.3d at 751; The ALJ noted that the record reflected 6 no recent episodes of cellulitis (AR 29),57 and treatment of her 7 earlier lower-leg ailments had been conservative (see AR 239 8 (cellulitis treated with antibiotics), 241 (cellulitis or 9 possibly phlebitis treated with antibiotics), 218 ( early 10 cellulitis treated with antibiotics and Plaintiff instructed to 11 elevate legs and avoid long car trips), 249 (cellulitis treated 12 with antibiotics and compression stockings and Plaintiff 13 instructed to elevate legs twice daily), 301 (thrombophlebitis to 14 be managed with heat, ibuprofen, frequent sitting, elevation of 15 legs, and support hose)). Plaintiff herself confirmed that 16 [i]t s been a while since she had problems with cellulitis, 17 implying that her compression stockings had solved the problem. 18 (AR 47.) That Plaintiff appears to have been treated once for 19 cellulitis in the 16 months after the ALJ s decision would not 20 have altered his finding that Plaintiff did not have a severe 21 medically determinable impairment of cellulitis, particularly 22 when the record indicated that the cellulitis was resolved. 23 Similarly, the record was devoid of any medical evidence of IBS, 24 as the ALJ noted (AR 23); a single doctor s notation of chronic 25 26 27 28 57 Although the ALJ stated that the last episode of cellulitis occurred in early 2008 (AR 31), the record reflects at least suspicion of cellulitis in October 2009 (AR 249), the sole notation of cellulitis in the record that postdates Plaintiff s application for benefits. 42 1 [d]iarrhea secondary to food allergy (Compl. Ex. 1 at 2) does 2 not constitute a diagnosis of IBS. The June 12, 2012 record is 3 therefore not material, and remand is not warranted. See Booz, 4 734 F.2d at 1380. 5 Similarly, the Questionnaire, which on the surface appears 6 to bear directly upon Plaintiff s alleged back pain and purports 7 to identify limitations akin to those Plaintiff alleges, could 8 not reasonably have affected the outcome of the case and is thus 9 not material. See id. Although Plaintiff describes Dr. 10 Tavassoli as my physician (Compl. at 8), Dr. Tavassoli failed 11 to complete the portion of the Questionnaire regarding 12 [f]requency and length of contact (Compl. Ex. 1 at 4), and the 13 record reflects no prior treatment by her. More importantly, Dr. 14 Tavassoli does not appear to have examined Plaintiff before 15 completing the Questionnaire. The doctor indicated neither a 16 diagnosis nor a prognosis, instead simply noting Plaintiff s 17 complaint of chronic low back pain and indicating that there 18 were no clinical findings and objective signs of Plaintiff s 19 claimed ailment. (Id.) It is therefore not surprising that the 20 responses on the Questionnaire reflect Plaintiff s claims of back 21 pain and limitations (compare Compl. Ex. 1 at 6 (Plaintiff 22 experiences pain when she stands or sits longer than an hour ) 23 with AR 51-52 (Plaintiff s testimony that she cannot sit or stand 24 for more than an hour)) and are inconsistent with the medical 25 evidence, the opinion of Dr. Eriks, and the opinions of the 26 medical consultants. An ALJ is free to disregard a medical 27 opinion based solely on a claimant s properly discredited 28 subjective complaints. See Tonapetyan v. Halter, 242 F.3d 1144, 43 1 1149 (9th Cir. 2001) (ALJ free to disregard doctor s opinion 2 that was premised on plaintiff s subjective complaints); see also 3 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (same); 4 cf. Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005) 5 (treating physician s letter did not establish an impairment when 6 it merely restated patient s symptoms and contained no reference 7 to results from medically acceptable clinical diagnostic 8 techniques (citing SSR 96 4p, 1996 WL 374187, at *1 n.2 (July 2, 9 1996))). Moreover, the Questionnaire is internally inconsistent 10 (compare Compl. Ex. 1 at 5 (stating that Plaintiff cannot sit or 11 stand for even a minute without needing to get up) with id. 12 (noting that her pain and symptoms may interfere with her ability 13 to concentrate if she stands or sits longer than an hour )), and 14 for that reason, too, would likely have been rejected by the ALJ. 15 See Tommasetti, 533 F.3d at 1041 (treating physician s opinion 16 may be rejected on the basis of incongruity between the doctor s 17 assessment and his own medical records). The Questionnaire would 18 not have altered the outcome of this case and is therefore not 19 material. 20 Booz, 734 F.2d at 1380. Nor has Plaintiff shown good cause for her failure to timely 21 submit the Questionnaire to the Appeals Council. 22 F.2d at 1551; Mayes, 276 F.3d at 463. See Key, 754 She fails to note when she 23 provided the form to the clinic, when it was returned to her, or 24 why another doctor could not have timely completed it, 25 particularly given that there is no indication in the record that 26 Dr. Tavassoli had ever treated her. Moreover, the form was 27 completed May 18, 2011, after the hearing before the ALJ (AR 36) 28 but nearly a year before the Appeals Council issued its decision 44 1 (AR 1). Plaintiff was still represented by counsel at that time 2 and yet offers no explanation for why counsel did not submit it 3 to the Appeals Council. (See AR 5-7, 213-16). Thus, she has not 4 shown good cause for failing to submit the Questionnaire to the 5 Commissioner before her decision became final. 6 Plaintiff is not entitled to remand based on the documents 7 attached to her Complaint. 8 9 10 2. The ALJ reasonably relied on the opinion of Dr. Eriks Plaintiff cites as error the ALJ s heavy reliance on Sandra 11 Eriks, M.D., who ordered no laboratory testing or examined my 12 medical records. 13 (Pl. s Mot. at 2.) This was not error. The ALJ properly assigned [g]reat weight to Dr. Eriks s 14 opinion, noting that the doctor examined, interviewed and 15 observed the claimant on December 28, 2009. (AR 32.) Indeed, 16 Dr. Eriks s opinion was supported by independent clinical 17 findings and thus constituted substantial evidence upon which the 18 ALJ could properly rely. (See AR 259 (noting physical 19 examination of Plaintiff including formal testing), 259-61 20 (recording results of examination)); see Tonapetyan, 242 F.3d at 21 1149 (opinion of physician who conducted independent evaluation 22 of claimant constitutes substantial evidence ). As the ALJ 23 noted, Dr. Eriks s physical examination of Plaintiff was within 24 normal limits in all areas and she therefore did not think that 25 claimant had any physical restrictions (AR 32; see AR 259-62). 26 Plaintiff asserts that Dr. Eriks s opinion should be 27 disregarded because she did not review Plaintiff s medical 28 records or perform laboratory tests. 45 (Pl. s Mot. at 2.) In 1 fact, Dr. Eriks s report indicates that medical records were 2 available to her (AR 258), and there is no reason to believe she 3 did not review them. Indeed, her report references Plaintiff s 4 history of various ailments. (Id.) The report also indicates 5 that Dr. Eriks relied on formal testing in her physical 6 examination of Plaintiff. (AR 259.) Nothing in the law required 7 that Dr. Eriks s examination of Plaintiff include laboratory 8 tests. 9 Moreover, Dr. Eriks s assessment was supported by the 10 evidence in the record, which reflected conservative treatment of 11 Plaintiff s back and hip pain. 12 357.) (See, e.g., AR 310, 338, 350, As the ALJ noted, Dr. Eriks s opinion also was consistent 13 with that of the medical consultants who reviewed Plaintiff s 14 file. (See AR 285 (finding no restrictions or limitations), 289 15 (reconsidering initial finding, reviewing additional data, and 16 affirming finding of no severe impairment).) 17 entitled to rely on Dr. Eriks s opinion. The ALJ was thus See 20 C.F.R. 18 §§ 404.1527(c)(4), 416.927(c)(4) (ALJ will generally give more 19 weight to opinions that are more consistent . . . with the 20 record as a whole ). 21 22 23 3. The ALJ did not err in discounting Block s Function Report Plaintiff asserts that the ALJ erred in rejecting her 24 sister s Third-Party Function Report. (Compl. at 14.) An ALJ 25 may discount lay-witness opinions by providing reasons germane 26 to that source for doing so. 27 919 (9th Cir. 1993). Dodrill v. Shalala, 12 F.3d 915, Here, the ALJ provided germane reasons for 28 questioning Block s report, including that her statements were 46 1 not given under oath, as a lay witness she was not competent to 2 make a diagnosis or argue the severity of Plaintiff s symptoms, 3 and her statements were not wholly supported by the clinical and 4 diagnostic evidence in the record.58 5 (AR 30.) Nonetheless, the ALJ did not, as Plaintiff asserts, reject 6 Block s report entirely. He noted that Block, like Plaintiff, 7 acknowledged many activities conducted by Plaintiff on a daily 8 basis and her responsibility for driving Block and caring for 9 grandchildren. (AR 29-30.) Moreover, Block s characterizations 10 of her sister s pain and limitations did not suggest a severe 11 impairment. (See, e.g., AR 169 (cannot lift child or bend over 12 too long ), id. (previously could stand longer and walk farther 13 . . . drive farther ), id. (when Plaintiff s back goes out, I 14 have to get her a heating pad and rub her back ), 172 ( When her 15 back goes out Jane doesn t exercise. ).) Thus, as the ALJ noted, 16 Block s report is largely consistent with his findings. (AR 29.) 17 18 19 20 21 22 23 24 25 26 27 28 58 The ALJ also cited Block s familial and financial interest in Plaintiff s successful application for benefits as a basis upon which to disregard Block s statements. (AR 30.) The Ninth Circuit has held that the interest of a family member is not a sufficient basis upon which to reject her testimony. See Smolen, 80 F.3d at 1289 ( The fact that a lay witness is a family member cannot be a ground for rejecting his or her testimony. ); Valentine v. Comm r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (that spouse was interested party insufficient basis for rejecting her testimony). Because the ALJ provided other clear, convincing, and germane reasons for rejecting Block s testimony, however, his erroneous reliance on her interest in Plaintiff s receipt of benefits was harmless. Cf. Valentine, 574 F.3d at 694. 47 1 4. The ALJ did not err in finding that Plaintiff s 2 degenerative disc disease and cellulitis were not 3 severe 4 Plaintiff contends that the ALJ improperly labeled her 5 degenerative disc disease as mild and failed to recognize that 6 her cellulitis and phlebitis constituted serious and recurring 7 conditions. 8 9 (Pl. s Mot. at 4-5, 8.) a. Neither was error. Applicable law At step two of the sequential evaluation process, the 10 claimant has the burden to show that she has one or more severe 11 medically determinable impairments that can be expected to result 12 in death or last for a continuous period of at least 12 months. 13 See Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S. Ct. 2287, 14 2294 n.5, 96 L. Ed. 2d 119 (1987) (claimant bears burden at step 15 two); Celaya v. Halter, 332 F.3d 1177, 1180 (9th Cir. 2003) 16 (same); §§ 404.1508, 416.908 (defining physical or mental 17 impairment ); §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii) (claimants 18 will be found not disabled at step two if they do not have a 19 severe medically determinable physical or mental impairment that 20 meets the duration requirement ). A medically determinable 21 impairment must be established by signs,59 symptoms, or laboratory 22 findings; it cannot be established based solely on a claimant s 23 own statement of her symptoms. §§ 404.1508, 416.908; Ukolov, 420 24 25 26 27 28 59 A medical sign is an anatomical, physiological, or psychological abnormality that can be shown by medically acceptable clinical diagnostic techniques. Ukolov, 420 F.3d at 1005 (quoting SSR 96-4p, 1996 WL 374187, at *1 n.2 (July 2, 1996) (internal quotation marks omitted)); accord §§ 404.1528(b), 416.928(b). 48 1 F.3d at 1004-05; SSR 96 4p, 1996 WL 374187, at *1 (July 2, 1996); 2 see also 42 U.S.C. § 423(d)(3) ( physical or mental impairment 3 is one that results from anatomical, physiological, or 4 psychological abnormalities which are demonstrable by medically 5 acceptable clinical and laboratory diagnostic techniques ). 6 To establish that a medically determinable impairment is 7 severe, moreover, the claimant must show that it significantly 8 limits [her] physical or mental ability to do basic work 9 activities. 60 10 416.921(a). §§ 404.1520(c) 416.920(c); accord §§ 404.1521(a), An impairment or combination of impairments may be 11 found not severe only if the evidence establishes a slight 12 abnormality that has no more than a minimal effect on an 13 individual s ability to work. Webb v. Barnhart, 433 F.3d 683, 14 686 (9th Cir. 2005) (emphasis in original and internal quotation 15 marks omitted); see also Smolen, 80 F.3d at 1290 ( [T]he step-two 16 inquiry is a de minimis screening device to dispose of groundless 17 claims. ). Applying the applicable standard of review to the 18 requirements of step two, a court must determine whether an ALJ 19 had substantial evidence to find that the medical evidence 20 clearly established that the claimant did not have a medically 21 severe impairment or combination of impairments. Webb, 433 F.3d 22 at 687. 23 60 As the ALJ noted (AR 27-28), [b]asic work activities 24 include, among other things, [p]hysical functions such as 25 walking, standing, sitting, lifting, pushing, pulling, reaching, 26 27 28 carrying, or handling ; [c]apacities for seeing, hearing, and speaking ; [u]nderstanding, carrying out, and remembering simple instructions ; using judgment; [r]esponding appropriately to supervision, co-workers and usual work situations ; and [d]ealing with changes in a routine work setting. §§ 404.1521(b), 416.921(b); accord Yuckert, 482 U.S. at 141. 49 1 2 b. Analysis Plaintiff contends that the ALJ improperly labeled her 3 degenerative disc disease as mild. (Pl. s Mot. at 4-5.) In 4 support of her contention that the disease was in fact severe, 5 Plaintiff points to the May 17, 2010 MRI of her spine, her 6 Function Report, and the May 18, 2011 Physical Residual 7 Functional Capacity Questionnaire. (Id.) Plaintiff correctly 8 notes that the MRI found both mild degenerative disc disease at 9 the L4-L5 and moderate degenerative disc disease at L5-L6 and 10 L6-S1. (AR 292.) However, neither the MRI report nor any other 11 evidence in the record supports her claim of severe disease 12 significantly limit[ing] my ability to perform physical 13 functions such as standing, sitting, lifting, pulling and 14 bending. (Pl. s Mot. at 5.) Rather, as noted above, 15 Plaintiff s physicians recommended imaging for diagnosis, 16 physical therapy, and medication to control the pain. 17 338, 350, 357.) (AR 310, See §§ 404.1529(c)(3)(iv)-(v), 18 416.929(c)(3)(iv)-(v) (ALJ may consider effectiveness of 19 medication and treatment in evaluating severity and limiting 20 effects of impairment); Warre, 439 F.3d at 1006; Parra, 481 F.3d 21 at 751. 22 Her statements in her Function Report, as discussed above, 23 tend to confirm that Plaintiff s back issues were not severe, as 24 they showed a relatively active lifestyle, management of many 25 responsibilities, and rare need for assistance or accommodation. 26 (See, e.g., AR 176-77 (noting many daily activities), 178 (noting 27 accommodation of limitations), 179 (noting that Plaintiff goes 28 out daily and to market repeatedly each week).) 50 As noted above, 1 the Questionnaire does not merit remand, nor is it consistent 2 with the evidence in the record. 3 (See, supra, Section VI.B.1.)61 Plaintiff also asserts that the ALJ erred in not recognizing 4 that her cellulitis and phlebitis constituted serious and 5 recurring conditions. (Pl. s Mot. at 8.) Plaintiff points to 6 the evidence in the record of cellulitis, varicosities, 7 phlebitis, and thrombophlebitis and the doctors instructions to 8 use compression stockings, elevate her legs, and avoid lengthy 9 trips. (Id.) Although the record indeed reflects these 10 diagnoses and recommendations, the ALJ correctly noted that at 11 the time of the hearing, there [we]re no recent episodes of 12 cellulit[i]s or documentation of impairment related problems 13 caused by poor circulation. (AR 29.) Rather, the record 14 reflects effective treatment of the swelling, varicosities, and 15 cellulitis in Plaintiff s lower extremities. (See AR 239 16 (treated with antibiotics), 241 (treated with antibiotics), 218 17 (treated with antibiotics, instructed to elevate legs and avoid 18 long car trips), 249 (treated with antibiotics and compression 19 stockings and instructed to elevate legs twice daily), 301 20 (instructed to manage with heat, ibuprofen, frequent sitting and 21 elevation of legs, and support hose).) The ALJ properly relied 22 on such evidence of conservative treatment to discount 23 24 25 26 27 28 61 Given the de minimis requirements of step two, see Smolen, 80 F.3d at 1290, the ALJ may have erred in not finding Plaintiff s degenerative disc disease impairment to be severe. Any error was necessarily harmless, however, because he considered evidence of her back ailments in determining whether she was disabled. Cf. Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (step-two error harmless when ALJ accounts for resulting limitations later in evaluation process). 51 1 Plaintiff s testimony regarding the severity of her alleged 2 impairments. See Parra, 481 F.3d at 751. Indeed, Plaintiff 3 herself confirmed that it had been a while since she had 4 problems with the cellulitis, attributing the improved 5 condition of her legs to the compression stockings prescribed for 6 her. (AR 47.) The successful treatment of Plaintiff s 7 cellulitis and related issues supports the ALJ s finding that 8 those problems did not constitute a severe medically determinable 9 impairment.62 See §§ 404.1529(c)(3)(iv)-(v), 416.929(c)(3)(iv)- 10 (v) (ALJ may consider effectiveness of medication and treatment 11 in evaluating severity and limiting effects of impairment); 12 Warre, 439 F.3d at 1006. 13 Moreover, although Plaintiff underscores that she has 14 adapted her daily activities to accommodate the problems in her 15 lower extremities (Pl. s Mot. at 8-9), both the record and her 16 motion demonstrate that those adaptations have been minor and 17 effective (see, e.g., id. at 9 (sitting or leaning into sink to 18 prepare meals); AR 178 (sister helps when needed with lifting 19 heavy items and tasks requiring bending), 47 (Plaintiff wears 20 21 22 23 24 25 26 27 62 Although the ALJ failed to identify Plaintiff s issues with her lower extremities as medically determinable impairments (AR 27), he treated them as such, including them in his analysis of whether Plaintiff had an impairment or combination of impairments that had significantly limited her ability to perform basic work-related activities (see AR 29, 31). Their initial exclusion was thus harmless error. See, e.g., Stout v. Comm r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (error harmless where the mistake was nonprejudicial to the claimant or irrelevant to the ALJ s ultimate disability conclusion ); cf. Lewis, 498 F.3d at 911 (step-two error harmless when ALJ later accounts for resulting limitations). 28 52 1 compression stockings to control issues with lower extremities), 2 48 (she avoids standing for long periods of time and elevates 3 legs to relieve pain and circulatory issues), 50-51 (she shifts 4 while sitting and gets up every hour to avoid discomfort)). 5 Thus, although the record reflects issues with Plaintiff s lower 6 extremities, it also reflects that she was able despite those 7 issues to maintain a reasonably active life, undermining her 8 assertion that those problems were disabling or even severe. 9 5. The ALJ s assessment of Plaintiff s medical 10 records was complete and included consideration of 11 the combined effect of Plaintiff s impairments 12 upon her ability to work 13 Plaintiff contends that the ALJ s analysis was incomplete 14 and that he failed to properly consider the combined effect of 15 Plaintiff s impairments upon her ability to work. 16 3-4, 9.) 17 (Pl. s Mot. at Neither of these contentions warrants reversal. Although Plaintiff contends the ALJ s analysis of her 18 medical records was incomplete, she does not point to any 19 records that were before the ALJ but not reviewed. First, she 20 disputes that she has reported that her asthma was controlled 21 with an Albuterol inhaler (AR 29), noting that it is her Flovent 22 steroid inhaler that controls her asthma and that the ALJ failed 23 to mention Flovent. (Pl. s Mot. at 4.) Plaintiff s insistence 24 that her albuterol inhaler was for emergency use only is belied 25 by medical records prescribing it as needed or p.r.n. 63 (See, 26 27 28 63 The Latin term pro re nata, meaning when necessary, is abbreviated in medical records p.r.n. See Stedman s Medical Dictionary, supra, at 1445. 53 1 e.g., AR 251 (noting use of albuterol as needed ), 310 2 (prescribing continued use of albuterol p.r.n.), 326 (same), 334 3 (same).) Regardless, Plaintiff stated in forms, testimony, and 4 motion papers that her asthma was controlled by medication. 5 187, 189, 258.) (AR The ALJ s error, if indeed it was one, was thus 6 harmless (see, e.g., Wright v. Comm r of Soc. Sec., 386 F. App x 7 105, 109 (3d Cir. 2010) (Tashima, J., sitting by designation) 8 (ALJ s misstatements in written decision harmless when regardless 9 of them ALJ gave an adequate explanation supported by 10 substantial evidence in the record )), and his determination that 11 her asthma was not severe is supported by the record, §§ 12 404.1529(c)(3)(iv); 416.929(c)(3)(iv) (ALJ may consider 13 effectiveness of medication in evaluating severity and limiting 14 effects of impairment); Warre, 439 F.3d at 1006. 15 Second, Plaintiff contends that the ALJ failed to consider 16 records supporting a diagnosis of IBS, citing alleged diagnoses 17 by two physicians. (Pl. s Mot. at 4.) In fact, the ALJ properly 18 found that the record did not support a diagnosis of IBS. 19 29.) (AR Although Plaintiff alleged IBS in her Function Report (AR 20 188), she submitted no records documenting the alleged diagnosis 21 by her former gastroenterologist (see Pl. s Mot. at 4) or 22 diagnosis by any other medical provider. She concedes that the 23 exact cause of her symptoms had not been determined. (Id.) As 24 discussed above (see, supra, Section VI.B.1), the record of her 25 June 12, 2012 visit to Dr. Tavassoli, attached to Plaintiff s 26 Complaint, was not before the ALJ or the Appeals Council, does 27 not merit remand, and in any event does not reflect diagnosis or 28 treatment of IBS. (See Compl. Ex. 1 at 1 (noting chronic 54 1 [d]iarrhea secondary to food allergy ).) 2 Plaintiff s alleged symptoms were not sufficient, in the 3 absence of any evidence of diagnosis or treatment for IBS, to 4 establish it as a medically determinable impairment. See Ukolov, 5 420 F.3d at 1005 (quoting SSR 96 4p, 1996 WL 374187, at *1 (July 6 2, 1996)); §§ 404,1508, 416.908 ( A physical or mental impairment 7 must be established by medical evidence consisting of signs, 8 symptoms, and laboratory findings, not only by your statement of 9 symptoms. ). 10 Relatedly, Plaintiff asserts that the ALJ failed to consider 11 her multiple disabilities and interrelated conditions, which she 12 asserts combined to significantly limit her ability to work.64 13 (Pl. s Mot. at 9); see §§ 404.1521, 416.921, 404.1523, 416.923. 14 Plaintiff specifically notes her alleged ADD, her cellulitis (and 15 alleged four-day hospitalization in 2006 and 2012 treatment), and 16 the interrelationship between her back, gastrointestinal, and 17 respiratory ailments.65 18 (Pl. s Mot. at 9-10.) In fact, the ALJ s decision shows that he considered these 19 20 21 22 23 24 25 26 27 28 64 Plaintiff s contentions as to the transferability of her skills are not relevant to step two but rather to step five, which the ALJ did not reach because he found Plaintiff s impairments not severe. (See AR 26-27 (setting forth steps in analysis), 27 (finding no severe impairments).) See, e.g., McDermott v. Astrue, 387 F. App x 732, 733 (9th Cir. 2010) (noting ALJ s consideration of claimant s transferable skills at step five). 65 Plaintiff alleges that her issues with her back and spine can cause acid-reflux/GERD episode, which in turn, can induce an asthma episode/attack. Keeping my spine straight at night is essential due to my GERD, which, when in reflux can awaken me with asthma and have sent me to the ER, thinking that I had pneumonia, when it was severe tree allergies. (Pl. s Mot. at 10.) 55 1 alleged impairments and the support, or lack of support, for them 2 in the record. As an initial matter, the ALJ expressly noted 3 that Plaintiff did not have an impairment or combination of 4 impairments limiting her ability to work. 5 added).) (AR 27 (emphasis Indeed, he considered Plaintiff s alleged back and 6 joint pain (AR 29 (alleged problems with lifting inconsistent 7 with reported activities), 31 (noting imaging of spine in 2009 8 and 2010 and resultant diagnosis of degenerative disc disease), 9 id. (hip and back pain controlled )); asthma (AR 29 (controlled 10 with inhaler, no hospitalization or emergency treatment), 31 11 ( controlled, no emergency treatment, mild symptoms)); problems 12 in her lower extremities (AR 29 (no recent issues with cellulitis 13 or poor circulation)); carpal tunnel syndrome (AR 29 (no 14 diagnosis, no longitudinal history of complaints or treatment), 15 31 (noting sole mention assessed normal hand function and 16 strength and only possible mild incidence of the ailment));66 IBS 17 (AR 29 (no diagnosis in record)); rosacea (AR 31 (noting 18 treatment, controlled )); GERD (AR 31 (noting treatment, 19 controlled )); and ADHD (AR 32 (examination revealed no mental 20 impairments)). The ALJ also considered impairments not alleged 21 but for which he found medical evidence in the record. (See, 22 e.g., AR 31 (noting blood pressure slightly elevated at times 23 but also often within normal limits), id. n.1 (obesity not a 24 severe impairment).) Having considered these alleged impairments 25 alone and in combination, the ALJ reasonably determined that 26 Plaintiff s medically determinable impairments did not 27 66 Plaintiff acknowledged that she does 28 not have carpal tunnel syndrome. in her Complaint at 3.) (Compl. Attach. 56 1 significantly limit her ability to perform basic work-related 2 activities. (AR 27.) Reversal is not warranted. See Reddick, 3 157 F.3d at 720-21 ( If the evidence can reasonably support 4 either affirming or reversing, the reviewing court may not 5 substitute its judgment for that of the Commissioner.). 6 VII. CONCLUSION 7 Consistent with the foregoing, and pursuant to sentence four 8 of 42 U.S.C. § 405(g),67 IT IS ORDERED that judgment be entered 9 AFFIRMING the decision of the Commissioner and dismissing this 10 action with prejudice. IT IS FURTHER ORDERED that the Clerk 11 serve copies of this Order and the Judgment on counsel for both 12 parties. 13 14 15 DATED: December 19, 2013 16 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 67 This 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. 57

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.