Jennifer Jones v. Carolyn W. Colvin, No. 5:2016cv01823 - Document 27 (C.D. Cal. 2017)

Court Description: MEMORANDUM DECISION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the Commissioner's decision, DENYING Plaintiff's request for remand, and DISMISSING this action with prejudice. (See Order for details) (bem)

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Jennifer Jones v. Carolyn W. Colvin Doc. 27 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JENNIFER JONES, Plaintiff, 12 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 Defendant. ) Case No. CV 16-1823-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) AFFIRMING COMMISSIONER ) ) ) ) ) ) ) 17 18 19 I. PROCEEDINGS Plaintiff seeks review of the Commissioner’s final decision 20 denying her application for supplemental security income benefits 21 (“SSI”). 22 undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). 23 matter is before the Court on the parties’ Joint Stipulation, 24 filed June 30, 2017, which the Court has taken under submission 25 without oral argument. 26 Commissioner’s decision is affirmed. The parties consented to the jurisdiction of the The For the reasons stated below, the 27 28 1 Dockets.Justia.com 1 II. 2 BACKGROUND Plaintiff was born in 1981. 3 211.) 4 85, 228.) 5 and a teaching assistant. 6 (Administrative Record (“AR”) She has a college degree in botany and biochemistry. (AR She has worked as a university laboratory technician (AR 228.) On March 26, 2013, Plaintiff filed an application for SSI, 7 alleging she had been disabled since April 1, 2010 (AR 211), 8 because of a crushed leg, depression, bipolar disorder, and 9 schizotypal personality disorder (see AR 135). After her 10 application was denied initially and upon reconsideration (AR 11 135, 168), she requested a hearing before an Administrative Law 12 Judge (AR 146). 13 which Plaintiff, who was represented by counsel, testified, as 14 did her father and a vocational expert. 15 written decision issued on January 16, 2015, the ALJ found 16 Plaintiff not disabled. 17 and submitted additional medical evidence. 18 47-63.) 19 finding that the additional evidence did not provide a basis for 20 changing the ALJ’s decision. 21 the new evidence be made part of the administrative record. 22 (AR 6.) 23 III. STANDARD OF REVIEW 24 A hearing was held on November 26, 2014, at (AR 64-79.) (AR 80-108.) In a Plaintiff requested review (See AR 15-29, 45, On June 22, 2016, the Appeals Council denied review, (AR 1-7.) The council ordered that This action followed. Under 42 U.S.C. § 405(g), a district court may review the 25 Commissioner’s decision to deny benefits. 26 decision should be upheld if they are free of legal error and 27 supported by substantial evidence based on the record as a whole. 28 See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra 2 The ALJ’s findings and 1 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial 2 evidence means such evidence as a reasonable person might accept 3 as adequate to support a conclusion. 4 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 5 It is more than a scintilla but less than a preponderance. 6 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 7 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 8 substantial evidence supports a finding, the reviewing court 9 “must review the administrative record as a whole, weighing both Richardson, 402 U.S. at To determine whether 10 the evidence that supports and the evidence that detracts from 11 the Commissioner’s conclusion.” 12 720 (9th Cir. 1998). 13 either affirming or reversing,” the reviewing court “may not 14 substitute its judgment” for the Commissioner’s. 15 IV. Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support Id. at 720-21. 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 has lasted, or is expected to 20 last, for a continuous period of at least 12 months. 21 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 22 1992). 42 U.S.C. 23 A. The Five-Step Evaluation Process 24 The ALJ follows a five-step sequential evaluation process to 25 assess whether a claimant is disabled. 26 § 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 27 1995) (as amended Apr. 9, 1996). 28 Commissioner must determine whether the claimant is currently 20 C.F.R. In the first step, the 3 1 engaged in substantial gainful activity; if so, the claimant is 2 not disabled and the claim must be denied. § 416.920(a)(4)(i). 3 If the claimant is not engaged in substantial gainful 4 activity, the second step requires the Commissioner to determine 5 whether the claimant has a “severe” impairment or combination of 6 impairments significantly limiting her ability to do basic work 7 activities; if not, the claimant is not disabled and her claim 8 must be denied. 9 § 416.920(a)(4)(ii). If the claimant has a “severe” impairment or combination of 10 impairments, the third step requires the Commissioner to 11 determine whether the impairment or combination of impairments 12 meets or equals an impairment in the Listing of Impairments set 13 forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, 14 disability is conclusively presumed. § 416.920(a)(4)(iii). 15 If the claimant’s impairment or combination of impairments 16 does not meet or equal an impairment in the Listing, the fourth 17 step requires the Commissioner to determine whether the claimant 18 has sufficient residual functional capacity (“RFC”)1 to perform 19 her past work; if so, she is not disabled and the claim must be 20 denied. 21 proving she is unable to perform past relevant work. 22 F.2d at 1257. 23 case of disability is established. § 416.920(a)(4)(iv). The claimant has the burden of Drouin, 966 If the claimant meets that burden, a prima facie Id. 24 25 26 27 28 1 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). The Commissioner assesses the claimant’s RFC between steps three and four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (citing § 416.920(a)(4)). 4 1 If that happens or if the claimant has no past relevant 2 work, the Commissioner then bears the burden of establishing that 3 the claimant is not disabled because she can perform other 4 substantial gainful work available in the national economy. 5 § 416.920(a)(4)(v); Drouin, 966 F.2d at 1257. 6 comprises the fifth and final step in the sequential analysis. 7 § 416.920(a)(4)(v); Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d 8 at 1257. 9 10 B. That determination The ALJ’s Application of the Five-Step Process At step one, the ALJ found that Plaintiff had not engaged in 11 substantial gainful activity since March 26, 2013, the 12 application date. 13 had only one severe medically determinable impairment: “fracture 14 of the left lower extremity.” 15 a medically determinable mental impairment, mood disorder, but 16 concluded that it was “nonsevere.” 17 found that she did not have an impairment or combination of 18 impairments falling under a Listing, “specifically consider[ing] 19 listing 1.06.” 20 (AR 69.) At step two, he concluded that she (Id.) He also found that she had (Id.) At step three, he (AR 70.) At step four, the ALJ found that Plaintiff had the RFC to 21 perform a limited range of light work: she could “lift and/or 22 carry up to 20 pounds occasionally and 10 pounds frequently,” 23 “stand and/or walk no more than four hours in an eight-hour 24 workday,” “sit without restriction,” and “frequently perform 25 pushing or pulling with the upper extremities.” 26 “require[d] a cane for long-distance ambulation”; could 27 “occasionally climb, balance, kneel and crawl”; and “should avoid 28 jobs requiring more than occasional negotiation of uneven 5 (Id.) She 1 terrain, unprotected heights, or the climbing of ladders, ropes 2 or scaffolds.” 3 concluded that she could not perform any past relevant work. 4 73.) 5 experience, and [RFC],” he determined that she could successfully 6 perform numerous light and sedentary jobs available in the 7 national economy. 8 disabled. 9 V. 10 (AR 70-71.) Based on the VE’s testimony, the ALJ (AR At step five, however, given her “age, education, work (AR 74-75.) Thus, the ALJ found Plaintiff not (AR 75.) DISCUSSION Plaintiff argues that the ALJ erred in (1) evaluating the 11 credibility of her subjective symptom statements, (2) denying the 12 applicability of Listing 1.06 to her leg impairment, and (3) 13 finding her mental impairment nonsevere. 14 For the reasons discussed below, the ALJ did not err. 15 16 17 A. (See J. Stip. at 4.) The ALJ Properly Assessed the Credibility of Plaintiff’s Subjective Symptom Statements The ALJ found that Plaintiff’s statements “concerning the 18 intensity, persistence and limiting effects” of her physical and 19 mental symptoms were “not entirely credible.” 20 Plaintiff argues that this finding was improper because the ALJ 21 failed to sufficiently support it. 22 ALJ, however, based his credibility assessment on clear and 23 convincing reasons. 24 25 1. (AR 71.) (See J. Stip. at 16-22.) The Accordingly, remand is not warranted. Applicable law An ALJ’s assessment of the credibility of a claimant’s 26 allegations concerning the severity of her symptoms is entitled 27 to “great weight.” 28 Cir. 1989) (as amended); Nyman v. Heckler, 779 F.2d 528, 531 (9th See Weetman v. Sullivan, 877 F.2d 20, 22 (9th 6 1 Cir. 1985) (as amended Feb. 24, 1986). 2 ‘required to believe every allegation of disabling pain, or else 3 disability benefits would be available for the asking, a result 4 plainly contrary to 42 U.S.C. § 423(d)(5)(A).’” 5 Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair v. 6 Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). 7 “[T]he ALJ is not Molina v. In evaluating a claimant’s subjective symptom testimony, the 8 ALJ engages in a two-step analysis. 9 at 1035-36; see also SSR 96-7p, 1996 WL 374186 (July 2, 1996).2 See Lingenfelter, 504 F.3d 10 “First, the ALJ must determine whether the claimant has presented 11 objective medical evidence of an underlying impairment [that] 12 could reasonably be expected to produce the pain or other 13 symptoms alleged.” 14 objective medical evidence exists, the ALJ may not reject a 15 claimant’s testimony “simply because there is no showing that the 16 impairment can reasonably produce the degree of symptom alleged.” 17 Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) (emphasis in 18 original). 19 Lingenfelter, 504 F.3d at 1036. If such If the claimant meets the first test, the ALJ may discredit 20 the claimant’s subjective symptom testimony only if she makes 21 specific findings that support the conclusion. 22 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). 23 affirmative evidence of malingering, the ALJ must provide “clear 24 and convincing” reasons for rejecting the claimant’s testimony. See Berry v. Absent a finding or 25 2 26 27 28 Social Security Ruling 16-3p, 2016 WL 1119029, effective March 28, 2016, rescinded SSR 96-7p, which provided the framework for assessing the credibility of a claimant’s statements. SSR 16-3p was not in effect at the time of the ALJ’s decision in this case, however. 7 1 Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (as 2 amended); Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 3 1102 (9th Cir. 2014). 4 (1) ordinary techniques of credibility evaluation, such as the 5 claimant’s reputation for lying, prior inconsistent statements, 6 and other testimony by the claimant that appears less than 7 candid; (2) unexplained or inadequately explained failure to seek 8 treatment or to follow a prescribed course of treatment; (3) the 9 claimant’s daily activities; (4) the claimant’s work record; and The ALJ may consider, among other factors, 10 (5) testimony from physicians and third parties. 11 Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (as 12 amended); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 13 2002). 14 substantial evidence in the record, the reviewing court “may not 15 engage in second-guessing.” 16 17 18 Rounds v. If the ALJ’s credibility finding is supported by 2. Thomas, 278 F.3d at 959. Relevant background a. Physical limitations In 2010, Plaintiff fractured her left femur in a car crash 19 and also sustained several fractures of her right leg. 20 Though the record contains no documentation of treatment before 21 March 2012 (see AR 71), the fractures apparently required 22 multiple rounds of surgery (see AR 526). 23 diagnosed with nonunion of the left-leg fracture and underwent 24 corrective surgery. 25 October 2012 she was able to walk and stand for “3-5 minutes” 26 without assistance (AR 384), and in May 2013 she could “ambulate 27 short distances [without] pain” (AR 310). 28 throughout 2013 indicated that the fracture was healing but that (AR 441-42.) 8 (AR 526.) In July 2012, she was Following the surgery, in Medical imaging 1 union was still incomplete despite stable hardware. 2 AR 307 (May 2013), 544 (Dec. 2013).) 3 indicated that the fractured femur was healing and had normal 4 alignment, intact hardware, and “delayed union.” 5 2014), 604-05 (Mar. 2014), 608-09 (Jan. 2014).) 6 (See, e.g., By 2014, medical imaging (AR 602 (May In her June 7, 2013 Adult Function Report, Plaintiff 7 indicated that standing was painful (AR 242), and in her November 8 20, 2013 Disability Report she stated that she could “no longer 9 do things around the house like basic chores” (AR 274). Her 10 report indicated, however, that she had no problem with personal 11 care and could prepare her own meals, wash dishes, go outside 12 “once or twice a week,” use public transportation, and walk “a 13 few blocks” with crutches. 14 and played music throughout the day. 15 (AR 243-45, 247.) She also crocheted (AR 246.) In September 2013, Plaintiff was examined by consulting 16 internist Ulin Sargeant. (AR 526-30.) She reported difficulty 17 walking and said she used crutches “all the time,” “for 18 everything even getting up from her bed.” 19 reported that she did “not take any medications for the 20 discomfort because she [did] not think that they help[ed] at 21 all,” and she was “not getting any intervention,” including any 22 treatment, cortisone injections, or physical therapy. (AR 526.) She also (Id.) Dr. Sargeant observed that with crutches she walked at a 23 24 normal pace. (AR 527.) But when he asked her to walk or stand 25 without crutches, she refused. 26 her left knee beyond 10 degrees in a supine position but 27 demonstrated a flexion of 90 degrees in a sitting position. 28 529.) (Id.) She also refused to flex (AR Dr. Sargeant concluded that despite reported “discomfort 9 1 in her lower extremities,” Plaintiff had “fairly good function” 2 walking with crutches, could even walk “briskly with [them],” and 3 was “able to do a lot of activities more than [he] thought that 4 she could.” 5 carry 20 pounds occasionally and 10 pounds frequently”; was “able 6 to walk and stand four hours out of an eight-hour workday”; had 7 “no restrictions” sitting; “should use a cane for long 8 distances”; was “able to walk on uneven terrain, climb ladders, 9 and work at heights occasionally”; and was “able to climb, 10 11 (Id.) He assessed that she was “able to lift and balance, kneel, and crawl occasionally.” (AR 530.) Dr. Pamela Ombres, a consulting physician3 who reviewed 12 Plaintiff’s medical records in October 2013, noted that a few 13 days after her exam with Dr. Sargeant, Plaintiff “called in 14 stating she was nervous at [the] exam and told them she uses 15 crutches all the time[, but] she uses crutches about 50% of [the] 16 time, mostly out of the house” and not while at home. 17 Dr. Ombres found that Plaintiff was “capable of a sedentary RFC.” 18 (AR 117.) 19 for a total of[] 2 hours,” could “[s]it (with normal breaks) for 20 a total of[] [a]bout 6 hours in an 8-hour workday,” and required 21 a “[c]rutch for long distance[s].” 22 (AR 114.) She could “[s]tand and/or walk (with normal breaks) (Id.) Dr. M. Gleason, a consulting doctor,4 reviewed Plaintiff’s 23 3 24 25 Dr. Ombres has a specialty code of “28,” indicating “[o]phthalmology.” (AR 109); see Program Operations Manual System (POMS) DI 24501.004, U.S. Soc. Sec. Admin. (May 5, 2015), https://secure.ssa.gov/poms.nsf/lnx/0424501004. 26 4 27 28 Dr. Gleason has a specialty code of “35,” indicating “[p]lastic surgery.” (AR 121); see Program Operations Manual System (POMS) DI 24501.004, U.S. Soc. Sec. Admin. (May 5, 2015), https://secure.ssa.gov/poms.nsf/lnx/0424501004. 10 1 medical records in February 2014 and reaffirmed her sedentary 2 RFC. 3 walk (with normal breaks) for a total of[] 4 hours,” could “[s]it 4 (with normal breaks) for a total of[] [a]bout 6 hours in an 8- 5 hour workday,” and required a “[c]rutch for long distance[s].” 6 (AR 129-30.) 7 (AR 131.) Dr. Gleason noted that she could “[s]tand and/or At a December 2013 appointment, Plaintiff was found to have 8 “normal” range of motion and “flexion/extension” in her left 9 knee, and she was advised to practice walking with one crutch. 10 (AR 545; see also AR 558.) 11 normal range of motion in her left leg and was able to move her 12 knee 130 degrees (AR 609); she also “request[ed] a note stating 13 it’s ok to swim” (AR 543). 14 demonstrated “full” range of motion in her left knee and reported 15 walking two miles without pain (though she also reported walking 16 two blocks with some pain around the same time). 17 In January 2014, she demonstrated And at a March 2014 appointment, she (AR 605.) At her November 26, 2014 hearing, Plaintiff testified that 18 she still had difficulty standing and walking. 19 Although she could stand and clean dishes at home for “short 20 periods of time . . . pain free,” she felt pain whenever she 21 walked any distance “without [her] crutches.” 22 testified that she did not feel pain when seated (AR 90) but also 23 testified that sitting for “more than an hour” was hard (AR 91). 24 She indicated that she applied for “dishwasher jobs,” “server 25 jobs,” and “clerical positions” but was not hired because she 26 lacked relevant experience. (Id.) She (See AR 84-85.) Plaintiff lived with her father, mother, and brother. 27 28 (AR 84.) 99.) Her father testified at the hearing. 11 (AR 94.) (AR He stated 1 that Plaintiff did some household chores, such as vacuuming, 2 cleaning dishes, and laundry. 3 testimony concerned her mental health. 4 b. 5 (AR 95.) But the majority of his (See AR 94-100.)5 Mental limitations The record contains no psychiatric or mental-health records 6 from before 2012 despite an alleged disability onset date of 7 April 2010. 8 indicate that she had undergone regular treatment for mental- 9 health problems since at least 2008. (See AR 71.) Plaintiff’s medical records, however, (See AR 497.) Throughout 10 2012 and 2013, Plaintiff attended regular therapy sessions with 11 clinical psychologist Joyce Handler. 12 sessions, Plaintiff discussed her history of psychiatric 13 hospitalizations, suicidal episodes, and feelings of depression. 14 (Id.) 15 brother, whom she identified as sources of her anger.6 16 e.g., AR 504 (in September 2012 she “became very angry [at her 17 mother] and started throwing things around . . . [and] biting (AR 500-10.) During those She reported acting violently toward her mother and (See, 18 19 20 21 22 23 24 25 26 27 28 5 Plaintiff in passing criticizes the ALJ’s rejection of her father’s hearing testimony. (See J. Stip. at 20-22.) His testimony was given “some weight” by the ALJ, but only “insofar as it corroborate[d]” Plaintiff’s symptom statements. (AR 73.) As discussed below, because the ALJ found Plaintiff’s symptom statements not fully credible (id.), a finding supported by substantial evidence in the record, the ALJ’s partially adverse treatment of her father’s testimony was not in error. 6 Indeed, her mother was apparently at least sometimes a difficult person. She refused to participate in a family therapy session in October 2012 because she was “very angry” at Plaintiff and believed she was “destroy[ing]” their home. (AR 505.) That same month, Plaintiff was hospitalized for a violent episode, and when her mother came to visit, she was “very demanding and intrusive,” “cursing and threatening staff,” and “had to be escorted out twice.” (AR 399.) 12 1 her,” and in October 2012 she “reported becoming violent during 2 an argument with her brother”).) 3 reported “connecting with people at church,” “volunteering to 4 help with gardening at the church,” going “shopping with a new 5 friend she met at the church,” feeling “very badly about her 6 violent behavior,” seeming “more motivated than ever to stop,” 7 and realizing “she had been paranoid.” 8 9 Nonetheless, Plaintiff also (AR 507-08.) In March 2013, shortly before the application date, she was admitted to the hospital for inpatient treatment for having 10 suicidal “plan[s] to hang herself or overdose on medications.” 11 (AR 319-34.) 12 and major depressive disorder. 13 been noncompliant with her medications and felt “like she 14 need[ed] a medication change.” 15 Prolixin7 or Trileptal8 was working, and she stopped taking She reported having a history of bipolar disorder (AR 323.) She also said she had (Id. (Plaintiff did not feel that 16 17 18 19 20 21 22 23 24 25 7 Prolixin is the name-brand version of fluphenazine, an antipsychotic medication used to treat schizophrenia and such psychotic symptoms as hallucinations, delusions, and hostility. See Fluphenazine, MedlinePlus, https://medlineplus.gov/druginfo/ meds/a682172.html (last updated July 15, 2017). 26 8 27 28 Trileptal is the name-brand version of oxcarbazepine, an anticonvulsant used to treat seizures and bipolar disorder. See Oxcarbazepine, MedlinePlus, https://medlineplus.gov/druginfo/ meds/a601245.html (last updated Jan. 15, 2016). 13 1 Depakote,9 Topamax,10 Zyprexa,11 and Risperdal12 because of their 2 side effects); see also AR 374 (Plaintiff was noted in January 3 2013 to “frequently change her [medication] regimen” on her 4 own).) 5 treatment records throughout the rest of 2013 indicated she was 6 stable and compliant with the medication. 7 (Dec. 2013), 623 (Oct. 2013), 624 (Sept. 2013); see also AR 561 8 (Nov. 2013), 563 (Aug. 2013), 565 (July 2013), 567 (Apr. 2013).) 9 Treatment records throughout 2014 demonstrated the same. Plaintiff was given new medications (AR 324), and her (See, e.g., AR 622 (See, 10 e.g., AR 613 (Oct. 2014), 615 (July 2014), 617 (May 2014), 619 11 (Mar. 2014), 620 (Feb. 2014), 621 (Jan. 2014).) 12 apparently not hospitalized at any point between the application 13 date and the ALJ’s decision. 14 Plaintiff was In her June 2013 function report, Plaintiff indicated that 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 Depakote is the name-brand version of valproic acid, an anticonvulsant used to treat mania. See Valproic Acid, MedlinePlus, https://medlineplus.gov/druginfo/meds/a682412.html (last updated July 15, 2017). 10 Topamax is the name-brand version of topiramate, an anticonvulsant used to treat seizures, prevent migraines, and manage alcohol dependence. See Topiramate, MedlinePlus, https://medlineplus.gov/druginfo/meds/a697012.html (last updated Jan. 15, 2015). 11 Zyprexa is the name-brand version of olanzapine, an atypical antipsychotic used to treat the symptoms of schizophrenia and bipolar disorder. See Olanzapine, MedlinePlus, https://medlineplus.gov/druginfo/meds/a601213.html (last updated June 15, 2017). 12 Risperdal is the name-brand version of risperidone, an atypical antipsychotic used to treat the symptoms of schizophrenia, mania, and such other behavioral problems as aggression. See Risperidone, MedlinePlus, https:// medlineplus.gov/druginfo/meds/a694015.html (last updated July 15, 2017). 14 1 her “suicidal issues” impaired her concentration. 2 stated, however, that she was able to pay bills, handle savings 3 accounts, count change, use a checkbook, and go to church weekly. 4 (AR 245-46.) 5 (AR 246.) 6 on the phone. 7 capable of paying attention “long enough to work,” which was “no 8 different since [her 2010] car crash.” 9 (AR 242.) She She took part in church “to the fullest extent.” She indicated that she spent time with others talking (AR 246-47.) She also reported that she was (AR 247.) In October 2013, Plaintiff was examined by consulting 10 psychiatrist Thaworn Rathana-Nakintara. (AR 533-37.) 11 reported having “suicidal feeling[s]” and a history of “bipolar 12 disorder, depression, schizotypal personality disorder, and 13 schizoaffective disorder since 2008.” 14 reported having a history of psychiatric hospitalizations and 15 nonhospital psychiatric treatment, and she said she was on 16 medication and currently seeing a psychologist and psychiatrist. 17 (AR 534.) 18 from the hospital eight months [earlier].” 19 Rathana-Nakintara noted that Plaintiff had “adequate self-care 20 skills,” did “household chores,” “manage[d] her own money with 21 some help,” and could “go places by herself sometimes.” 22 535.) 23 good eye contact, and was alert and oriented. 24 Rathana-Nakintara diagnosed Plaintiff with mood disorder. 25 536.) 26 social functioning,” “no difficulties focusing and maintaining 27 attention,” and “no difficulties in concentration, persistence 28 and pace.” (AR 533.) Plaintiff She also She reported “feeling better since she was discharged (AR 536.) Dr. (AR She was also responsive during the examination, maintained (Id.) Dr. (AR Plaintiff demonstrated “no difficulties in maintaining (AR 537.) Dr. Rathana-Nakintara concluded that she 15 1 would have “no limitations performing simple and repetitive 2 tasks”; “no limitations performing detailed and complex tasks”; 3 “no difficulties [performing] work activities on a consistent 4 basis without special or additional supervision”; “no limitations 5 completing a normal workday or workweek due to her mental 6 condition”; “no limitations accepting instructions from 7 supervisors and interacting with coworkers and with the public”; 8 and “no difficulties [handling] the usual stresses, changes and 9 demands of gainful employment.” (Id.) Dr. Rathana-Nakintara 10 also noted that Plaintiff was “vulnerable to becom[ing] depressed 11 when she [was] very stressed” in her personal relationships but 12 “not at work.” 13 (Id.) Also at this time Plaintiff’s medical records were reviewed 14 by consulting psychologist W. Miller Logan, who concluded that 15 she was not disabled. 16 she was moderately limited in her “ability to interact 17 appropriately with the general public,” “accept instructions and 18 respond appropriately to criticism from supervisors,” “get along 19 with coworkers or peers without distracting them or exhibiting 20 behavioral extremes,” and “maintain socially appropriate 21 behavior.” 22 limitations with “understanding and memory” or “sustained 23 concentration and persistence” (id.), and she was able to 24 “perform a full range of work activity from a cognitive 25 standpoint but would need a work setting where interactions with 26 coworkers, supervisors, and the public are brief and task 27 focused.” 28 Funkenstein, another consulting psychologist who reviewed (AR 118.) (AR 119.) (AR 113-15, 118-20.) Dr. Logan found that But Dr. Logan also found that she had no These findings were reaffirmed by Dr. D. 16 1 Plaintiff’s medical records, in February 2014. 2 (AR 127-28, 131- 33.) 3 At her November 2014 hearing, Plaintiff testified that she 4 was “very uncomfortable being around people” and had difficulty 5 working with others. 6 their pens” and coughed at her (id.), which caused her stress (AR 7 89). 8 local community college, where she noticed others “pen clicking” 9 and felt like she was being sexually harassed (she was not (AR 84.) She felt that others “click[ed] She testified that she recently took a Spanish class at a 10 touched by other people but got “these strange tingly feelings”). 11 (AR 87-88.) 12 approximately three hours a week and was “very careful” not to 13 miss class. 14 received an “A+” in the course.13 15 Plaintiff attended the class for four months for (Id.) She worked with others on group projects and (AR 87-89.) Plaintiff’s father testified that because of school, she was 16 “leaving the house fairly frequently.” 17 she talked about “problems with students clicking pens” (id.) and 18 that after interacting with people outside the family, she 19 frequently reflected that she did not feel she “fit in” or would 20 “know what to say” (AR 96-97). 21 had “never been a particularly social person[,] she interacted 22 well with others” and was a self-motivated “super achiever.” 23 96, 98.) 24 3. (AR 97.) He noted that He also testified that while she (AR Analysis 25 Plaintiff argues that the ALJ failed to specifically and 26 sufficiently support his determination that her testimony was 27 13 28 Although Plaintiff stated she took only one class (AR 8788), her father testified that she also took typing (AR 97). 17 1 only partially credible. (J. Stip. at 16.) Though she points to 2 medical evidence that supports her testimony (see id. at 16-18, 3 20-21), the substantial weight of the evidence looking at the 4 record as a whole undermines Plaintiff’s statements regarding 5 both her physical and mental functional limitations. 6 when the record would support a decision either way, a reviewing 7 court may not substitute its judgment for the Commissioner’s. 8 Reddick, 157 F.3d at 720-21. Moreover, 9 The ALJ identified three reasons why he found Plaintiff not 10 fully credible: (1) the “extent” of her reported limitations was 11 “not fully supported by the objective evidence of record” (AR 12 73); (2) her activities of daily living were inconsistent with 13 her reported functional limitations (AR 71); and (3) her periods 14 of “symptom exacerbation are associated with periods of poor 15 medication compliance” (AR 73). 16 reason for discounting her credibility. 17 a. 18 19 Each was a legally sufficient Reported limitations inconsistent with objective evidence First, the ALJ properly found some of Plaintiff’s symptom 20 statements lacking in credibility and unsupported by the record, 21 as to both her physical and mental functioning. 22 the ALJ, Plaintiff alleged that she had “difficulty with 23 standing/walking due to her leg impairment.” 24 hearing, she testified that she walked with crutches, would feel 25 pain while standing or walking, and had a “hard time sitting for 26 long.” 27 28 As identified by (AR 71.) At her (AR 90-91.) Plaintiff’s medical records, however, indicated that her condition was improving and not disabling. 18 As the ALJ noted, 1 “[m]edical imaging” in early 2014 showed “stable alignment of the 2 femur,” “intact hardware,” and “stable overall alignment.” 3 73 (citing AR 602, 604, 608).) 4 throughout 2013 and 2014 showed that her left-femur fracture was 5 healing despite a delayed union, her hardware was consistently 6 intact and stable, and her left knee’s range of motion had 7 increased to full capacity. 8 able to walk and stand for “3-5 minutes” without assistance in 9 October 2012 (AR 384), could “ambulate short distances [without] (AR Indeed, medical examinations (See, e.g., AR 307, 602.) She was 10 pain” in May 2013 (AR 310), and — based on the September 2013 11 medical opinion of Dr. Sargeant, to which the ALJ gave “great 12 weight” (AR 73) and which Plaintiff does not directly challenge — 13 could walk, stand, and sit effectively. 14 Plaintiff told Dr. Sargeant she could not walk at all without 15 crutches (AR 526), she shortly thereafter acknowledged that she 16 had not told Dr. Sargeant the truth and used crutches only “50% 17 of [the] time” (AR 114). 18 Plaintiff’s refusal to even attempt walking without crutches for 19 Dr. Sargeant or to flex her knee for him. 20 (AR 530.) Even though This admission casts in a suspect light Moreover, Plaintiff’s physical abilities continued to 21 improve following her July 2012 surgery. 22 achieved full range of motion in her left leg and had requested a 23 note approving her to swim, further demonstrating her increased 24 mobility. 25 walking two miles without pain. 26 have sometimes reported pain in her left leg (see, e.g., AR 84, 27 242, 536), her medical records indicated that she could 28 occasionally walk with lessening or no pain (see, e.g., AR 310, By March 2014, she (AR 543, 605; see also AR 545, 609.) (AR 605.) 19 She reported Though she appears to 1 530, 605). 2 that she did not take medication for the pain or seek treatment 3 or therapy, evidence which itself suggests that her pain 4 testimony was properly discounted (see AR 526). 5 F.3d at 1113 (holding that “ALJ may properly rely on ‘unexplained 6 or inadequately explained failure . . . to follow a prescribed 7 course of treatment’” to discount claimant’s credibility (quoting 8 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008)); Beck 9 v. Astrue, 303 F. App’x 455, 458 (9th Cir. 2008) (upholding 10 adverse credibility determination when plaintiff “failed to 11 follow a recommended treatment plan”). 12 two consulting physicians, her medical records showed that she 13 needed a “[c]rutch” for long-distance ambulation and could 14 otherwise sit, stand, and walk. 15 medical records therefore provide substantial evidence supporting 16 the ALJ’s finding that her physical-symptom statements were not 17 fully credible. 18 F.3d 1155, 1161 (9th Cir. 2008) (“Contradiction with the medical 19 record is a sufficient basis for rejecting the claimant’s 20 subjective testimony.”); Burch v. Barnhart, 400 F.3d 676, 681 21 (9th Cir. 2005) (“Although lack of medical evidence cannot form 22 the sole basis for discounting pain testimony, it is a factor 23 that the ALJ can consider in his credibility analysis.”). 24 As the ALJ noted (AR 72), Plaintiff also reported See Molina, 674 Finally, when reviewed by (AR 117, 129-30.) Plaintiff’s See Carmickle v. Comm’r, Soc. Sec. Admin., 533 The ALJ also properly found Plaintiff’s mental-symptom 25 statements not fully credible and unsupported by the record. 26 identified by the ALJ, Plaintiff alleged that she had “impaired 27 concentration as a result of her mental health symptoms.” 28 71.) As (AR She testified at her hearing that she had “a lot of trouble 20 1 focusing” (AR 92-93), and in her function report she specified 2 that her concentration was impaired because of her “suicidal 3 issues” (AR 242). 4 with Plaintiff’s medical records and activities. 5 These statements, however, were inconsistent After a formal psychiatric examination in October 2013, Dr. 6 Rathana-Nakintara concluded that Plaintiff had “no difficulties 7 focusing[,] maintaining attention,” or “concentrat[ing].” 8 537.) 9 tasks, and she had “no limitations” on her ability to complete a (AR She was capable of performing both simple and complex 10 “normal workday or workweek” because of her mental condition 11 (id.), which was diagnosed as mood disorder (AR 536). 12 challenges Dr. Rathana-Nakintara’s opinion as “incomplete,” 13 claiming that it failed to address her other “personality 14 disorder” diagnoses. 15 found that Dr. Rathana-Nakintara’s evaluation was corroborated by 16 both the examination itself and the record as a whole. 17 see Thomas, 278 F.3d at 957; accord Batson v. Comm’r of Soc. Sec. 18 Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). 19 examination, for example, Plaintiff completed “serial sevens 20 subtraction . . . down from 100 to two,” which she did “with no 21 mistake at all.” 22 subtraction” and “was able to spell the word ‘world’ forward and 23 backward easily.” 24 observed that Plaintiff exhibited “no difficulty interacting with 25 the clinic staff or [herself],” contributing to the conclusion 26 that she had “no difficulties in maintaining social functioning.” 27 (AR 537.) 28 Rathana-Nakintara’s findings. (J. Stip. at 37.) (AR 535.) (Id.) Plaintiff But the ALJ correctly (AR 73); During the She did “the same on serial threes Similarly, Dr. Rathana-Nakintara The ALJ accordingly afforded “great weight” to Dr. (AR 73.) 21 Plaintiff’s mental- 1 symptom allegations were therefore not supported by her medical 2 records. 3 the medical record is a sufficient basis for rejecting the 4 claimant’s subjective testimony.”); Burch, 400 F.3d at 681. 5 See Carmickle, 533 F.3d at 1161 (“Contradiction with Her activities, too, showed that her concentration was not 6 impaired. 7 included group projects, and spent long periods playing music and 8 crocheting (AR 246). 9 capable of paying attention “long enough to work,” and she said She received an A+ in her Spanish class (AR 87), which In her function report, she admitted being 10 her attention span was “no different” than before the alleged 11 disability onset date. 12 indicated that she was capable of paying bills and handling 13 savings accounts (AR 245), which was corroborated by Dr. Rathana- 14 Nakintara’s psychiatric evaluation (see AR 535). 15 also found to have no limitations with “understanding and memory” 16 or “sustained concentration and persistence” by Drs. Logan and 17 Funkenstein, consulting psychologists who reviewed her medical 18 records and found her not disabled. 19 Plaintiff’s reported limitations with focus and concentration 20 were unsupported by the record, and the ALJ properly discounted 21 her credibility in this regard. 22 Burch, 400 F.3d at 681. 23 24 b. (AR 247.) Her function report also Plaintiff was (AR 118, 131-32.) Thus, See Carmickle, 533 F.3d at 1161; Daily activities As the ALJ found (AR 71) and as discussed briefly above, 25 Plaintiff’s symptom statements were also undermined by her 26 contradictory reports of engaging in “activities including self- 27 care, housework, errands (including use of public 28 transportation), and social and leisure activities” (id.). 22 An 1 ALJ may properly discount the credibility of a plaintiff’s 2 subjective symptom statements when they are inconsistent with her 3 daily activities. 4 discredit claimant’s testimony when “claimant engages in daily 5 activities inconsistent with the alleged symptoms” (citing 6 Lingenfelter, 504 F.3d at 1040)). 7 activities suggest some difficulty functioning, they may be 8 grounds for discrediting the claimant’s testimony to the extent 9 that they contradict claims of a totally debilitating 10 11 impairment.” See Molina, 674 F.3d at 1112 (ALJ may “Even where those [daily] Id. at 1113. Despite Plaintiff’s allegations of pain while standing and 12 walking, both she and her father testified that she could engage 13 in a range of housework, including cleaning dishes, doing 14 laundry, and vacuuming. 15 also stated that she could regularly and independently travel to 16 church and school (AR 97, 245-46), and she indicated that she had 17 no problems with personal care, preparing her own meals, or using 18 public transportation (AR 243-45). 19 left the house “fairly frequently.” 20 (AR 84, 95, 244.) She and her father Her father testified that she (AR 97.) Her allegations of difficulty sitting (see, e.g., AR 91) 21 were similarly contradicted by her statements that she did not 22 feel pain when seated (AR 90) and spent her days “sitting longer” 23 while crocheting and playing music (AR 246). 24 further corroborated her ability to stand, walk, and sit. 25 e.g., AR 117, 129-30, 530, 605.) 26 four months, never missing a class, and received an A+ in the 27 course. 28 (AR 97.) (AR 87-89.) Medical records (See, She also attended school for She apparently took a second class, typing. Thus, the record contains substantial evidence of 23 1 Plaintiff’s functional activity, undermining her physical-symptom 2 statements and supporting the ALJ’s adverse credibility 3 determination. 4 Cir. 1993) (upholding ALJ’s finding that claimant’s pain 5 testimony was undermined by his housecleaning, “including 6 vacuuming and dishwashing”; light gardening; shopping; and 7 attending school three days a week, “an activity which is 8 inconsistent with an alleged inability to perform all work”). 9 See Matthews v. Shalala, 10 F.3d 678, 679-80 (9th Moreover, to the extent Plaintiff alleges disability because 10 she was unable to be around others, the record shows otherwise. 11 Dr. Rathana-Nakintara indicated that she had “no difficulties in 12 maintaining social functioning,” had “no limitations . . . 13 interacting with coworkers and with the public,” and experienced 14 stress in personal relationships rather than at work. 15 Plaintiff testified to working with others in group projects as 16 part of her Spanish class, which she did successfully given the 17 “A+” she received in the course. 18 testified that she interacted well with others despite her self- 19 reported difficulty with such interactions. 20 Plaintiff reported spending time with others by talking on the 21 phone, going to church weekly, and taking part in church “to the 22 fullest extent” (AR 246),14 activities which she had also (AR 87-89.) (AR 537.) Her father, too, (AR 96-98.) 23 14 24 25 26 27 28 Plaintiff contends that the church “could not deal with her.” (J. Stip. at 21 (citing AR 498, 509).) AR 498 states only that Plaintiff reported that her church activities “elevate her mood.” AR 509 states only that she stopped going to the Mormon Church and was trying out other religions. On AR 508, Plaintiff reported that the pastor of her church did not have as much time to spend with her as she wanted, and she “felt bad but understands.” That hardly equates to the church being “unable to deal with her.” 24 1 reported to her therapist, Dr. Handler (AR 507-08 (Plaintiff 2 connected with people at church, volunteered, and went shopping 3 with a friend from church)). 4 demonstrated activities of daily living undermined Plaintiff’s 5 statements that she was unable to work, concentrate, or be around 6 others. 7 Cir. 2017) (upholding ALJ’s discounting of plaintiff’s 8 credibility in part because his activities of daily living “were 9 not entirely consistent with his claimed inability to engage in 10 Thus, both her medical records and See Womeldorf v. Berryhill, 685 F. App’x 620, 621 (9th social interactions”). 11 c. Noncompliance with treatment and medications 12 The ALJ specifically noted how Plaintiff’s instances of 13 exacerbated mental-health issues were “associated with periods of 14 poor medication compliance.” 15 example, during Plaintiff’s March 2013 hospitalization, she 16 reported being noncompliant with her depression medication. 17 323.) 18 compliance with her medication (see, e.g., AR 561), and no 19 subsequent instances of hospitalization occurred. 20 psychiatric records during the relevant period substantiated 21 Plaintiff’s claims of impaired concentration caused by mental- 22 health problems. 23 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be 24 controlled effectively with medication are not disabling for the 25 purpose of determining eligibility for SSI benefits.”). (AR 73; see also AR 323, 374.) For (AR Thereafter, during the relevant period, she reported In fact, no See Warre v. Comm’r of Soc. Sec. Admin., 439 26 For all these reasons, the ALJ’s adverse credibility 27 determination of Plaintiff’s symptom statements is supported by 28 substantial evidence. Plaintiff is therefore not entitled to 25 1 remand on this ground.15 2 B. The ALJ Properly Found that Plaintiff’s Physical 3 Impairment Did Not Meet or Equal Listing 1.06, 4 “Fracture of a Femur” 5 Plaintiff argues that the ALJ erred in finding that her 6 impairment did not fall under Listing 1.06 because her medical 7 records “establish incomplete union” of her left femur fracture. 8 (J. Stip. at 5.) 9 err. 10 11 1. As discussed below, however, the ALJ did not Applicable law At step three of the disability evaluation process, the ALJ 12 must evaluate the claimant’s impairments to see if they meet or 13 medically equal any of those in the Listings. 14 § 416.920(a)(4)(iii); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th 15 Cir. 1999). 16 that they are irrebuttably presumed disabling, without any 17 specific finding as to the claimant’s ability to perform his past 18 relevant work or any other jobs.” 19 § 404.1520(d)). 20 21 See Listed impairments are those that are “so severe Lester, 81 F.3d at 828 (citing The claimant has the initial burden of proving that an impairment meets or equals a Listing. Molina, 674 F.3d at 1110; 22 23 24 25 26 27 28 15 The ALJ may have erred in finding Plaintiff’s treatment with antipsychotic medication to be “conservative.” (AR 73.) But even if the ALJ was wrong, see, e.g., Childress v. Colvin, No. EDCV 14-0009-MAN, 2015 WL 2380872, at *14 (C.D. Cal. May 18, 2015) (finding treatment of prescription antidepressants, prescription antipsychotics, and talk therapy not properly characterized as conservative), he did not err in concluding that it was largely effective. Moreover, as discussed above, the ALJ gave other legally sufficient reasons for partially discounting Plaintiff’s credibility. 26 1 Burch, 400 F.3d at 683 (citing Swenson v. Sullivan, 876 F.2d 683, 2 687 (9th Cir. 1989)). 3 must establish that he or she meets each characteristic of a 4 listed impairment relevant to his or her claim.” 5 F.3d at 1099 (emphasis in original). 6 impairment, a claimant must establish symptoms, signs and 7 laboratory findings ‘at least equal in severity and duration’ to 8 the characteristics of a relevant listed impairment, or, if a 9 claimant’s impairment is not listed, then to the listed “To meet a listed impairment, a claimant Tackett, 180 “To equal a listed 10 impairment ‘most like’ the claimant’s impairment.” 11 § 404.1526 (emphasis in original)). 12 moreover, “must be based on medical findings”; “[a] generalized 13 assertion of functional problems is not enough to establish 14 disability at step three.” 15 Id. (quoting Medical equivalence, Id. at 1100 (citing § 404.1526). An ALJ “must evaluate the relevant evidence before 16 concluding that a claimant’s impairments do not meet or equal a 17 listed impairment.” 18 2001). 19 to satisfy every different section of the listing of 20 impairments.” 21 Cir. 1990). 22 supporting his conclusion only in other sections of his decision. 23 See id. at 1200-01 (finding no error when ALJ failed to state or 24 discuss evidence supporting conclusion that claimant’s 25 impairments did not satisfy Listing but “made a five page, 26 single-spaced summary of the record”); Lewis, 236 F.3d at 513 27 (ALJ required “to discuss and evaluate the evidence that supports 28 his or her conclusion,” but no error when ALJ does not “do so Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. The ALJ need not, however, “state why a claimant failed Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th The ALJ does not err by discussing the evidence 27 1 under the heading ‘Findings’”). Moreover, the ALJ “is not 2 required to discuss the combined effects of a claimant’s 3 impairments or compare them to any listing in an equivalency 4 determination, unless the claimant presents evidence in an effort 5 to establish equivalence.” Burch, 400 F.3d at 683. 6 An ALJ’s decision that a claimant did not meet a Listing 7 must be upheld if it was supported by “substantial evidence.” 8 See Warre, 439 F.3d at 1006. 9 a mere scintilla but less than a preponderance; it is such Substantial evidence is “more than 10 relevant evidence as a reasonable mind might accept as adequate 11 to support a conclusion.” 12 (9th Cir. 1997) (per curiam) (citing Andrews v. Shalala, 53 F.3d 13 1035, 1039 (9th Cir. 1995)). 14 more than one rational interpretation, the Court must uphold the 15 ALJ’s conclusion. Sandgathe v. Chater, 108 F.3d 978, 980 When evidence is susceptible of Id. 16 Listing 1.06 requires the following: 17 Fracture of the femur, tibia, pelvis, or one or more of 18 the tarsal bones. 19 20 With: A. Solid union not evident on appropriate medically acceptable imaging and not clinically solid; and 21 B. Inability to ambulate effectively, as defined in 22 1.00B2b, and return to effective ambulation did not occur 23 or is not expected to occur within 12 months of onset. 24 25 20 C.F.R. pt. 404, subpt. P, app. 1 § 1.06. The “[i]nability to ambulate effectively” is the “extreme Id. § 1.00(B)(2)(b)(1). The 26 limitation of the ability to walk.” 27 impairment must prevent “independent ambulation without the use 28 of a hand-held assistive device(s) that limits the functioning of 28 1 both upper extremities.” 2 includes “the inability to walk without the use of . . . two 3 crutches or two canes.” 4 2. 5 Id. “[I]neffective ambulation” Id. § 1.00(B)(2)(b)(2). Relevant background Plaintiff was involved in a car accident in 2010 and 6 underwent several rounds of surgery for fractures in her left and 7 right legs. 8 left femur was diagnosed as a nonunion, and she underwent 9 corrective surgery. (See AR 526.) In July 2012, the fracture in her (AR 441-42.) In October 2012 she 10 demonstrated independent ambulation and the ability to stand for 11 “3-5 minutes” (AR 384), and in March 2013 — when she filed her 12 SSI application — she could walk “short distances [without] pain” 13 (AR 310). 14 Plaintiff’s left-leg fracture was healing but continued to 15 exhibit nonunion despite stable hardware. 16 544.) 17 femur, with normal alignment and intact hardware. 18 05, 608-09.) 19 Medical imaging throughout 2013 indicated that (See, e.g., AR 307, In 2014, medical imaging showed “delayed union” of the (AR 602, 604- Plaintiff’s examination with Dr. Sargeant in September 2013 20 showed that she ambulated effectively with crutches, but she 21 refused to even attempt to walk without them (see AR 527-30) 22 despite recent reports that she was able to do so at least 23 briefly, as noted above (see, e.g., AR 310, 384). 24 later admitted that she had not told the truth to Dr. Sargeant 25 when she said she needed crutches “for everything” (AR 526) and 26 in fact used them only 50 percent of the time (AR 114). 27 Sargeant found that Plaintiff should walk with a cane for long 28 distances but otherwise was unimpeded in walking for up to four 29 Plaintiff Dr. 1 hours a day. (AR 530.) 2 showed continued improvement to the point of “full weight 3 bearing” (AR 609) and indicated that she could walk at least 4 short distances without pain and only occasionally required one 5 crutch. 6 Gleason, after reviewing her medical records, also found that 7 Plaintiff should walk with a “[c]rutch for long distances” but 8 otherwise had no walking limitations for up to two to four hours 9 a day. (AR 545, 605.) Physical examinations in 2013 and 2014 Consulting physicians Ombres and (AR 117, 129-30.) 10 3. Analysis 11 The ALJ properly concluded that Plaintiff failed to 12 establish that her leg impairment met or equaled Listing 1.06. 13 Specifically, he found that “[w]hile the record does document 14 nonunion of the claimant’s femur in medical imaging, the evidence 15 does not show an inability [to] ambulate effectively or an 16 expectation of inability to ambulate within 12 months.” 17 (AR 70.) Plaintiff’s medical records indicate that her left-leg 18 fracture did not result in a solid union. 19 608-09.) 20 the “record does document nonunion of the claimant’s femur in 21 medical imaging.” 22 that the ALJ did not find nonunion (see J. Stip. at 6-9), remand 23 is unwarranted. 24 ALJ’s finding that solid union of her left-leg fracture was not 25 evident. (See AR 307, 544, 602, The ALJ considered this in his decision, stating that (AR 70.) Thus, to the extent Plaintiff argues Substantial evidence in the record supports the 26 But the ALJ also found that Plaintiff did not present 27 evidence showing “an inability [to] ambulate effectively.” 28 30 (AR This finding is supported by substantial evidence.16 1 70.) 2 Though the record contains reports of leg pain from Plaintiff 3 (see, e.g., AR 84, 242, 536), ample evidence establishes that she 4 could walk effectively. 5 used crutches only 50 percent of the time (AR 114), and Dr. 6 Sargeant assessed that to walk long distances she needed only a 7 cane (AR 530). 8 weight bearing in four to six weeks. 9 of that year she reported walking two miles without pain. In September 2013, she admitted that she By January 2014, she was expected to be fully (AR 609.) Indeed, in March (AR 10 605.) 11 activities supporting the inference that she could walk 12 effectively, such as completing household chores like vacuuming 13 and going to school and church. 14 substantial evidence supports the conclusion that Plaintiff could 15 walk effectively.17 16 She and her father also reported that she engaged in (See, e.g., 95, 243-45.) Thus, See Warre, 439 F.3d at 1006. Moreover, during her September 2013 physical examination, 17 when she was asked to walk without crutches, she refused, saying 18 that she needed crutches “for everything.” 19 then called in admitting that she had lied and that she needed 20 crutches only 50 percent of the time. (AR 526-27.) (AR 114.) She Indeed, 21 22 23 24 25 26 27 28 16 Plaintiff seems to argue only that she was unable to ambulate effectively “through at least December 23, 2013” (J. Stip. at 9), apparently conceding that no evidence shows she couldn’t after that date. March 2013, the application date, to December of the same year is less than the 12 months necessary to show disability. 17 Plaintiff undermines her own argument by acknowledging that she could walk with only one crutch. (See J. Stip. at 9.) While walking only with the assistance of two crutches qualifies under Listing 1.06 (see 20 C.F.R. pt. 404, subpt. P, app. 1 § 1.00(B)(2)(b)(2)), walking with one crutch does not, see id. 31 1 Plaintiff had earlier told her doctors she could walk three to 2 five minutes and “short distances” without pain. 3 2013), 384 (Oct. 2012).) 4 ALJ’s finding that Plaintiff failed to provide evidence 5 establishing her inability to ambulate effectively. 6 v. Astrue, No. CV 11-7246-PLA, 2012 WL 3631526, at *7 (C.D. Cal. 7 Aug. 23, 2012) (finding that plaintiff did not demonstrate 8 inability to ambulate effectively because there was no “evidence 9 in the record to support . . . that in order to ambulate at all, (AR 310 (May Thus, substantial evidence supports the See Huizar 10 she requires two canes, or any other assistive device that limits 11 the functioning of both upper extremities”). 12 Remand is therefore unsupported on this ground. 13 C. 14 15 The ALJ Properly Found Plaintiff’s Mental Impairment Nonsevere Plaintiff argues that the ALJ failed to properly evaluate 16 her “longitudinal mental impairment,” including depression, 17 bipolar disorder, schizotypal personality disorder, and 18 schizoaffective disorder. 19 discussed below, however, the ALJ did not err. 20 error was harmless. 21 22 1. (J. Stip. at 28.) For the reasons Moreover, any Applicable law The step-two inquiry is “a de minimis screening device to 23 dispose of groundless claims.” Smolen, 80 F.3d at 1290. The 24 claimant has the burden to show that she has one or more “severe” 25 medically determinable impairments that can be expected to result 26 in death or last for a continuous period of at least 12 months, 27 as demonstrated by evidence in the form of signs, symptoms, or 28 laboratory findings. See §§ 416.905, 416.920(a)(4)(ii); Ukolov 32 1 v. Barnhart, 420 F.3d 1002, 1004-05 (9th Cir. 2005); Bowen v. 2 Yuckert, 482 U.S. 137, 146 n.5 (1987). 3 impairment is “severe” if it “significantly limits [the 4 claimant’s] physical or mental ability to do basic work 5 activities.”18 6 impairment or combination of impairments may be found ‘not severe 7 only if the evidence establishes a slight abnormality that has no 8 more than a minimal effect on an individual’s ability to work.’” 9 Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (quoting A medically determinable § 416.920(c); see also § 416.921(a). “An 10 Smolen, 80 F.3d at 1290 (emphasis in original)). 11 determine whether substantial evidence in the record supported 12 the ALJ’s finding that a particular impairment was not severe. 13 Davenport v. Colvin, 608 F. App’x 480, 481 (9th Cir. 2015) 14 (citing Webb, 433 F.3d at 687); see also Kent v. Astrue, 335 F. 15 App’x 673, 674 (9th Cir. 2009) (same). 16 error is harmless when the ALJ considered any resulting 17 limitations later in the sequential evaluation process, at step 18 four. 19 amended); Bickell v. Astrue, 343 F. App’x 275, 278 (9th Cir. 20 2009). Moreover, a step-two See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (as 21 22 A court must 2. Additional relevant background Plaintiff’s recent medical records, submitted for the first 23 time to the Appeals Council, indicated that she was compliant 24 with her medications and regularly reported “doing alright.” 25 26 27 28 18 “Basic work activities” include, among other things, “[p]hysical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling” and “[c]apacities for seeing, hearing, and speaking.” § 416.922(b); accord Yuckert, 482 U.S. at 141. 33 1 (See, e.g., AR 54 (Apr. 2016), 56 (Jan. 2016), 57 (Dec. 2015), 58 2 (Nov. 2015), 59 (Sept. 2015), 60 (July 2015), 61 (May 2015), 62 3 (Apr. 2015), 63 (Feb. 2015).) 4 2015 by psychiatrist Than Myint.19 5 apparently did not conduct a formal psychiatric examination at 6 the time but found that Plaintiff had “extreme” limitations 7 understanding, remembering, and carrying out instructions (AR 18) 8 and “difficulty with interpersonal relationships” and 9 “concentrating and focusing due to intrusive thoughts” (AR 22- Plaintiff was evaluated in June (AR 18-29.) Dr. Myint 10 23). 11 appropriately to supervision, coworkers, and work pressures in a 12 work setting (AR 18) and was competent to manage funds on her own 13 (AR 24). Dr. Myint also found, however, that she could respond 14 15 3. Analysis The ALJ properly found that Plaintiff had a medically 16 determinable mental impairment, mood disorder, but that it caused 17 no more than “minimal limitation” and therefore was not severe. 18 (AR 69-70.) 19 discussed below. 20 mental impairments at step two was harmless because the ALJ Substantial evidence supports that determination, as And any error in not identifying any other 21 22 23 24 25 26 27 28 19 The record contains treatment notes from Dr. Myint dating at least as far back as 2012. (See, e.g., AR 303.) The record also contains medication-support documentation signed by Dr. Myint since at least 2011. (See, e.g., AR 290-91, 518, 612, 62526.) Though the majority of those records are illegible (see, e.g., AR 292-303, 519-23, 613-24), those that can be read indicate that Plaintiff was regularly compliant with her medications (see, e.g., AR 292 (May 2013), 293 (Apr. 2013), 295 (Feb. 2013), 296 (Jan. 2013), 302 (May 2012), 519 (Jan. 2014), 520 (Dec. 2013), 521 (Oct. 2013), 522 (Sept. 2013), 523 (July 2013), 613 (Oct. 2014), 615 (July 2014), 617 (May 2014), 619 (Mar. 2014), 620 (Feb. 2014), 621 (Jan. 2014).) 34 1 thoroughly discussed and considered all of Plaintiff’s mental 2 limitations. 3 As a preliminary matter, Plaintiff argues that the evidence 4 submitted for the first time to the Appeals Council supports her 5 position that her mental conditions were severe. 6 39-40.) 7 claimants to submit new and material evidence to the Appeals 8 Council and require the Council to consider that evidence in 9 determining whether to review the ALJ’s decision, so long as the 10 evidence relates to the period on or before the ALJ’s decision.” 11 Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th 12 Cir. 2012); see also § 416.1470(b). 13 considers new evidence in deciding whether to review a decision 14 of the ALJ, that evidence becomes part of the administrative 15 record, which the district court must consider when reviewing the 16 Commissioner’s final decision for substantial evidence.” 17 682 F.3d at 1163; accord Taylor v. Comm’r of Soc. Sec. Admin., 18 659 F.3d 1228, 1232 (9th Cir. 2011); see also Borrelli v. Comm’r 19 of Soc. Sec., 570 F. App’x 651, 652 (9th Cir. 2014) (remand 20 necessary when “reasonable possibility” exists that “the new 21 evidence might change the outcome of the administrative 22 hearing”). 23 (J. Stip. at Social Security Administration regulations “permit “[W]hen the Appeals Council Brewes, Medical examinations that take place after the ALJ’s 24 decision may still relate to a claimant’s conditions “during the 25 relevant time period.” 26 WL 4895678, at *3 (C.D. Cal. Sept. 30, 2014). 27 the Appeals Council errs by dismissing the evidence solely 28 because it is dated after the ALJ’s decision. Handy v. Colvin, No. CV 14–02149–SH, 2014 35 In such a case, See id.; see also 1 Baccari v. Colvin, No. EDCV 13–2393 RNB, 2014 WL 6065900, at *2 2 (C.D. Cal. Nov. 13, 2014) (finding fact that claimant submitted 3 evidence to Appeals Council that was “generated after the ALJ’s 4 decision . . . is not dispositive of whether the evidence was 5 chronologically relevant”). 6 condition is “chronic” or relatively “longstanding.” 7 Baccari, 2014 WL 6065900, at *2; Bergmann v. Apfel, 207 F.3d 8 1065, 1070 (8th Cir. 2000) (finding that posthearing evidence 9 required remand because it concerned deterioration of “relatively 10 This is especially true when the See longstanding” impairment). 11 As the Appeals Council found (AR 2), the new evidence 12 submitted to it did not relate to the relevant time period — from 13 Plaintiff’s March 26, 2013 application date to January 16, 2015, 14 the date of the ALJ’s decision — and thus did not bear on the 15 severity determination made by the ALJ. 16 the “new evidence . . . may not relate back in time to the period 17 adjudicated by [the] ALJ.” 18 reflect Plaintiff’s stability and compliance with medication 19 since February 2015 (see, e.g., AR 54, 56-63) and provide an 20 additional psychiatric evaluation completed in June 2015 (AR 18- 21 24). 22 it assesses Plaintiff’s limitations as of June 2015, five months 23 after the ALJ’s decision. 24 No. SA CV 17-0394-E, 2017 WL 4142295, at *5 (C.D. Cal. Sept. 18, 25 2017) (upholding ALJ who discounted medical opinion written in 26 present tense and which did not state that it applied 27 retrospectively (citing Lombardo v. Schweiker, 749 F.2d 565, 567 28 (9th Cir. 1984) (per curiam)); Lewis v. Colvin, No. 12CV2073 AJB (AR 16.) Plaintiff admitted that Indeed, the new records The latter is written in the present tense, indicating that (Id.); see also Serna v. Berryhill, 36 1 (RBB), 2013 WL 4517252, at *26 (S.D. Cal. Aug. 21, 2013) (holding 2 that medical opinion in present tense and making no reference to 3 relevant time period provided no basis for reversing ALJ’s 4 decision or remanding). 5 that it related back to the relevant time period. 6 Berryhill, 688 F. App’x 495, 496 (9th Cir. 2017) (holding new 7 evidence not relevant when it did “not indicate that [it] 8 relate[d] back to the relevant period”); see also Vincent ex rel. 9 Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984) Indeed, the evaluation nowhere indicates Bales v. 10 (“After-the-fact psychiatric diagnoses are notoriously 11 unreliable.”). 12 Moreover, the evaluation is undermined by inconsistences 13 internally and with the record, and it accordingly “does not 14 change the fact that substantial evidence supports the ALJ’s 15 decision.” 16 2017 WL 3971459, at *2 17 Myint assessed only “extreme” and “marked” limitations in 18 Plaintiff’s cognitive and social functioning, and yet the 19 evaluation also found Plaintiff capable of responding 20 appropriately to supervision, coworkers, and work pressures in a 21 work setting (see AR 18-19) and stated that she could handle her 22 own funds (AR 24). 23 was completely unable to concentrate or stay focused (AR 29), yet 24 she received an A+ in a community-college Spanish course (AR 87) 25 and acknowledged that her alleged disability had not affected her 26 ability to pay attention (AR 247). 27 extreme limitations are unsupported by Dr. Myint’s own treatment 28 notes, which just document medication support and her regular Kohansby v. Berryhill, __ F. App’x __, No. 14-35926, (9th Cir. Sept. 8, 2017). First, Dr. Second, the evaluation stated that Plaintiff 37 Third, Plaintiff’s noted 1 compliance with medication. (See, e.g., AR 54-63.) Fourth, Dr. 2 Myint apparently treated Plaintiff since 2011 (see AR 21), and 3 his evaluation appears to rely on an earlier history of 4 hospitalizations occurring outside the relevant application 5 period (id.). 6 evidence did not impact the ALJ’s findings regarding Plaintiff 7 during the relevant period. Thus, as noted by the Appeals Council, the new (AR 2.) 8 As discussed by the ALJ, “the evidence of record dating from 9 the period at issue [did] not support a finding that the claimant 10 [had] consistently experienced more than minimal work-related 11 functional limitation as a result of any mental health 12 symptomatology.” 13 that despite a prior history of psychiatric hospitalization, 14 suicidal ideation, and associated periods of “poor medication 15 compliance” (AR 70; see also, e.g., AR 319-34, 497, 500-10), 16 regular treatment and medication stabilized her condition. 17 example, Plaintiff was seen throughout 2013 and 2014 and 18 consistently reported “doing alright,” being “stable,” and 19 complying with her medication. 20 563 (Aug. 2013), 565 (July 2013), 567 (Apr. 2013), 613 (Oct. 21 2014), 615 (July 2014), 617 (May 2014), 619 (Mar. 2014), 620 22 (Feb. 2014), 621 (Jan. 2014), 622 (Dec. 2013), 623 (Oct. 2013), 23 624 (Sept. 2013).) 24 70), the record contains no evidence of psychiatric 25 hospitalization during the relevant period. 26 F. App’x at 481 (affirming ALJ’s determination that claimant’s 27 mental impairments were not severe during relevant period in part 28 because treatment notes indicated that claimant’s “depression and (AR 69-70.) Plaintiff’s medical records showed For (See, e.g., AR 561 (Nov. 2013), Moreover, as recognized by the ALJ (AR 69- 38 See Davenport, 608 1 anxiety were either mild or improved with treatment”). 2 previously discussed, Plaintiff’s activities of daily living 3 confirmed that any mental impairment was not severe. 4 her October 2013 psychiatric evaluation, Dr. Rathana-Nakintara 5 found Plaintiff capable of social functioning, focusing, and 6 maintaining attention. 7 limitations” in her psychological work-related functions (see 8 id.; see also AR 70), and those findings were confirmed by the 9 opinions of consulting psychologists Logan and Funkenstein (AR 10 119, 132), which were afforded “significant weight” by the ALJ 11 (see AR 73). 12 that Plaintiff’s mental condition improved and was not severe 13 during the relevant period. 14 2:15-cv-2023-KJN (PS), 2017 WL 999459, at *3 (E.D. Cal. Mar. 15, 15 2017) (holding that ALJ did not err in finding Plaintiff’s 16 plantar fasciitis not severe in part because condition had 17 improved before relevant period), appeal filed, No. 17-15701 (9th 18 Cir. Apr. 12, 2017). 19 (AR 537.) And as Finally, in She was assessed as having “no The record therefore provides substantial evidence See Fry v. Comm’r Soc. Sec., No. Even had the ALJ erred in his severity determination, the 20 error was likely harmless. 21 considered and discussed Plaintiff’s mental functioning at 22 length. 23 harmless. 24 Moreover, the VE testified that a person possessing the RFC 25 assessed by the ALJ but also limited to only “occasional contact 26 with supervisors, coworkers and the public” could still perform 27 numerous jobs available in the economy, including many of those 28 cited by the ALJ in his decision. (See AR 71-73.) In assessing Plaintiff’s RFC, the ALJ Thus, any error at step two was See Lewis, 498 F.3d at 911; Bickell, 343 F. at 278. 39 (See AR 104; see also AR 75.) 1 Thus, any error in the ALJ’s step-two determination was harmless 2 for this additional reason. 3 498 F.3d at 911; Tommasetti, 533 F.3d at 1038 (error is harmless 4 when it is “inconsequential to the ultimate nondisability 5 determination”); cf. Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 6 536 (6th Cir. 2001) (finding error harmless when ALJ did not 7 discuss opinion of treating physician but VE took relevant 8 limitations into consideration anyway). 9 See Bickell, 343 F. at 278; Lewis, Thus, for all these reasons, Plaintiff is not entitled to 10 remand on this ground. 11 VI. 12 CONCLUSION Consistent with the foregoing and under sentence four of 42 13 U.S.C. § 405(g),20 IT IS ORDERED that judgment be entered 14 AFFIRMING the Commissioner’s decision, DENYING Plaintiff’s 15 request for remand, and DISMISSING this action with prejudice. 16 17 DATED: October 13, 2017 18 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 19 20 21 22 23 24 25 26 27 28 20 That sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 40

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