Michelle Alicia Spears v. Nancy A. Berryhill, No. 5:2017cv02114 - Document 36 (C.D. Cal. 2019)
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 payment of benefits or remand, and DISMISSING this action with prejudice. (See document for details.) (sbou)
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Michelle Alicia Spears v. Nancy A. Berryhill Doc. 36 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MICHELLE ALICIA S.,1 Plaintiff, 12 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 Defendant. ) Case No. EDCV 17-2114-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 under 28 U.S.C. § 636(c). 23 Court on the parties’ Joint Stipulation, filed October 5, 2018, 24 which the Court has taken under submission without oral argument. The parties consented to the jurisdiction of the The matter is before the 25 26 27 28 1 Plaintiff’s name is partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. 1 Dockets.Justia.com 1 For the reasons stated below, the Commissioner’s decision is 2 affirmed. 3 II. 4 BACKGROUND Plaintiff was born in 1962. 5 38, 174.) 6 (AR 202, 325). 7 from 2007 to 2009. 8 9 (Administrative Record (“AR”) She completed 12th grade (AR 38, 202) and some college She last worked as a “caregiver or caretaker,” (AR 38; see also AR 239.)2 On May 16, 2014, Plaintiff applied for SSI, alleging that she had been unable to work since May 9, 2009,3 because of “bad 10 knees,” “left shoulder . . . lump,” “scarred lungs, can’t breath 11 [sic] good,” “depression,” “anxiety,” “paranoia,” and “PTSD.” 12 (AR 70; see also AR 174-82.) 13 initially (AR 70-85) and on reconsideration (AR 86-103), she 14 requested a hearing before an Administrative Law Judge (AR 122). 15 A hearing was held on July 12, 2016, at which she was represented 16 by counsel and testified. 17 testified. 18 After her application was denied (AR 36-69.) A vocational expert also (AR 62-67.) In a written decision issued September 21, 2016, the ALJ 19 found Plaintiff not disabled since May 16, 2014. 20 also generally AR 16-26.) (See AR 25; see Plaintiff requested review from the 21 22 23 24 25 26 27 28 2 The ALJ found that Plaintiff had worked briefly in 2014 and 2015 but that that work did not qualify as substantial gainful activity. (AR 18.) 3 At the hearing, Plaintiff’s attorney amended the onset date to the date on “which she applied.” (AR 36; see also AR 3536.) The attorney referred to that date as June 9, 2014 (AR 36), which is the date listed on the SSI application summary (AR 174). But the ALJ used the May 16 date during the hearing without objection (AR 35) and reiterated in his decision that the onset date was “amended . . . to May 16, 2014” (AR 16; see also, e.g., AR 70, 85). The Court uses the earlier date. 2 1 Appeals Council (171-73), which denied it on September 25, 2017 2 (AR 1-4). 3 III. STANDARD OF REVIEW 4 This action followed. Under 42 U.S.C. § 405(g), a district court may review the 5 Commissioner’s decision to deny benefits. The ALJ’s findings and 6 decision should be upheld if they are free of legal error and 7 supported by substantial evidence based on the record as a whole. 8 See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 9 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence 10 means such evidence as a reasonable person might accept as 11 adequate to support a conclusion. 12 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 13 is more than a scintilla but less than a preponderance. 14 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 15 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 16 substantial evidence supports a finding, the reviewing court 17 “must review the administrative record as a whole, weighing both 18 the evidence that supports and the evidence that detracts from 19 the Commissioner’s conclusion.” 20 720 (9th Cir. 1998). 21 either affirming or reversing,” the reviewing court “may not 22 substitute its judgment” for the Commissioner’s. 23 IV. 24 Richardson, 402 U.S. at 401; It To determine whether Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support Id. at 720-21. THE EVALUATION OF DISABILITY People are “disabled” for purposes of receiving Social 25 Security benefits if they are unable to engage in any substantial 26 gainful activity owing to a physical or mental impairment that is 27 expected to result in death or has lasted, or is expected to 28 last, for a continuous period of at least 12 months. 3 42 U.S.C. 1 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 2 1992). 3 A. The Five-Step Evaluation Process 4 The ALJ follows a five-step sequential evaluation process to 5 assess whether a claimant is disabled. 6 § 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 7 1995) (as amended Apr. 9, 1996). 8 Commissioner must determine whether the claimant is currently 9 engaged in substantial gainful activity; if so, the claimant is 10 11 20 C.F.R. In the first step, the not disabled and the claim must be denied. § 416.920(a)(4)(i). If the claimant is not engaged in substantial gainful 12 activity, the second step requires the Commissioner to determine 13 whether the claimant has a “severe” impairment or combination of 14 impairments significantly limiting her ability to do basic work 15 activities; if not, the claimant is not disabled and her claim 16 must be denied. 17 § 416.920(a)(4)(ii). If the claimant has a “severe” impairment or combination of 18 impairments, the third step requires the Commissioner to 19 determine whether the impairment or combination of impairments 20 meets or equals an impairment in the Listing of Impairments set 21 forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, 22 disability is conclusively presumed. § 416.920(a)(4)(iii). 23 If the claimant’s impairment or combination of impairments 24 does not meet or equal an impairment in the Listing, the fourth 25 step requires the Commissioner to determine whether the claimant 26 27 28 4 1 has sufficient residual functional capacity (“RFC”)4 to perform 2 her past work; if so, she is not disabled and the claim must be 3 denied. 4 proving she is unable to perform past relevant work. 5 F.2d at 1257. 6 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. 7 If that happens or if the claimant has no past relevant 8 work, the Commissioner then bears the burden of establishing that 9 the claimant is not disabled because she can perform other 10 substantial gainful work available in the national economy. 11 § 416.920(a)(4)(v); Drouin, 966 F.2d at 1257. 12 comprises the fifth and final step in the sequential analysis. 13 § 416.920(a)(4)(v); Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d 14 at 1257. That determination 15 B. The ALJ’s Application of the Five-Step Process 16 At step one, the ALJ found that Plaintiff had not engaged in 17 substantial gainful activity since the application date, May 16, 18 2014. 19 impairments of “arthralgias;5 chronic obstructive pulmonary 20 disease (COPD); and bipolar affective disorder.” (AR 18.) At step two, he determined that she had severe (Id.) He found 21 22 23 24 25 26 27 28 4 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 416.945; see also 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)). 5 Arthralgia refers to any type of joint pain. See Arthritis vs. Arthralgia, healthline, https://www.healthline.com/ health/rheumatoid-arthritis/arthralgia#distinctions (last updated Dec. 1, 2016). It is not necessarily linked to arthritis, though it can be. (Id.) 5 1 other ailments mentioned in the record “nonsevere,” including 2 “obesity,” “benign . . . lipoma,” and “history of polysubstance 3 dependence.” 4 (AR 19.) At step three, he determined that Plaintiff’s impairments 5 did not meet or equal a listing. (AR 19-21.) At step four, he 6 found that she had the RFC to perform “light work” 7 except: can lift and carry 20 pounds occasionally and 10 8 pounds frequently; can stand and walk for 6 hours in an 9 8-hour workday; can sit for 6 hours in an 8-hour workday; 10 can perform occasional kneeling, jumping, and walking on 11 uneven terrain; should avoid even moderate exposure to 12 fumes, odors, dusts, gases, and poor ventilation; is 13 limited to work involving simple repetitive tasks; and no 14 more than occasional contact with co-workers, and no 15 contact with the general public. 16 (AR 21.) She had no past relevant work. 17 he concluded that given her age, education, work experience, and 18 RFC, and “[b]ased on the testimony of the vocational expert” (AR 19 25), she could perform at least one representative job in the 20 national economy: “Assembler of small products,” DOT 706.684-022, 21 1991 WL 679050 (Jan. 1, 2016), “an unskilled position . . . 22 performed at a light exertional level” (AR 25). 23 found Plaintiff not disabled. (AR 25-26.) (AR 24.) 24 25 26 27 28 6 At step five, Accordingly, he 1 V. DISCUSSION6 2 Plaintiff argues that the ALJ (1) “failed to properly 3 evaluate [her] mental illness” (J. Stip. at 9), (2) “failed to 4 give great weight to treating [p]sychiatrist Dr. Kurera” (id. at 5 12),7 (3) improperly assessed her RFC (see id. at 11, 19-21), (4) 6 “did not address the [c]ombination of her impairments” (id. at 7 21), and (5) “did not meet [the Commissioner’s] burden of [p]roof 8 at [s]tep [five]” (id. at 23).8 As discussed below, remand is 9 10 11 12 13 14 15 16 17 18 6 In Lucia v. SEC, 138 S. Ct. 2044, 2055 (2018), the Supreme Court recently held that ALJs of the Securities and Exchange Commission are “Officers of the United States” and thus subject to the Appointments Clause. To the extent Lucia applies to Social Security ALJs, Plaintiff has forfeited the issue by failing to raise it during her administrative proceedings. (See AR 36-69, 171-72); Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (as amended) (plaintiff forfeits issues not raised before ALJ or Appeals Council); see also generally Kabani & Co. v. SEC, 733 F. App’x 918, 919 (9th Cir. 2018) (rejecting Lucia challenge because plaintiff did not raise it during administrative proceedings); Davidson v. Comm’r of Soc. Sec., No. 2:16-cv-00102, 2018 WL 4680327 (M.D. Tenn. Sept. 28, 2018) (same). 7 The Court extrapolates this argument into a separate issue, although Plaintiff does not present it that way. 19 8 20 21 22 23 24 25 26 27 28 Because the ALJ’s decision is affirmed, the Court does not address Plaintiff’s additional argument that it should apply the credit-as-true doctrine and award her benefits. (See J. Stip. at 26, 29.) And as the Commissioner notes, though Plaintiff might have “intend[ed] to argue that the ALJ erred somehow in his credibility analysis,” she does not “present any actual argument concerning” his analysis, “identify any errors,” or “include even one citation to the record.” (Id. at 27.) Thus, no such argument has been properly presented. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (declining to address challenge to ALJ’s finding when claimant “failed to argue th[e] issue with any specificity”); see also Nazarian v. Berryhill, No. CV 17–1114 JC, 2018 WL 2938581, at *3 (C.D. Cal. June 7, 2018) (collecting cases). Further, most of Plaintiff’s claims were not presented during her administrative (continued...) 7 1 not warranted on any of these grounds. 2 A. The ALJ Properly Evaluated Plaintiff’s Mental Illness 3 Plaintiff claims that the ALJ failed to (1) “properly 4 evaluate [her] mental illness” in accordance with the “special 5 techniques” outlined in § 416.920a, (2) develop the record as to 6 her psychiatric treatment in prison and after her release, and 7 (3) consider the effect of her mental impairment on her RFC. 8 (See J. Stip. at 9-12.) 9 1. As set forth below, the ALJ did not err. Applicable law An ALJ must apply a five-step evaluation process to 10 11 determine whether a claimant qualifies as disabled. See Garrison 12 v. Colvin, 759 F.3d 995, 1010-11 (9th Cir. 2014). 13 evaluating an alleged mental impairment, an ALJ must follow a 14 “special psychiatric review technique” during steps two and 15 three. 16 (9th Cir. 2011) (citing § 404.1520a). 17 evaluating alleged mental impairments in SSI claims is codified 18 in When Keyser v. Comm’r of Soc. Sec. Admin., 648 F.3d 721, 725 The special technique for 19 20 21 22 23 24 25 26 27 28 8 (...continued) proceedings. (See generally AR 32-69 (hearing transcript), 17172 (request for Appeals Council review, making vague claims about “more test[]s,” upcoming shoulder surgery, and ongoing issues related to COPD).) Normally, such claims would be forfeited. See Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (as amended). But because Defendant largely has not challenged her claims on that basis (see generally J. Stip. at 13-17, 20, 22, 24-25 (challenging as forfeited only argument that ALJ failed to fully develop record)), the Court proceeds to consider them. See Dexter v. Colvin, 731 F.3d 977, 979 n.3 (9th Cir. 2013); Saari v. Berryhill, 745 F. App’x 775, 776 (9th Cir. 2018). 8 1 § 416.920a.9 2 has a medically determinable mental impairment. 3 Next, he must “rate the degree of functional limitation resulting 4 from the impairment(s)” in “four broad functional areas”: 5 “[a]ctivities of daily living; social functioning; concentration, 6 persistence, or pace; and episodes of decompensation.” 7 § 416.920a(b)(2), (c)(3)-(4). 8 these areas is “none” or “mild,” the impairment is “generally 9 . . . not severe.” First, an ALJ must determine whether the claimant § 416.920a(b). If the degree of impairment in § 416.920a(d)(1). If it is “moderate, 10 marked, [or] extreme,” it is severe, and the ALJ “must then 11 determine if [the impairment] meets or is equivalent” to a 12 “listed mental disorder.” 13 not meet or equal a listing, then the ALJ will continue with the 14 five-step evaluation process and assess the claimant’s RFC. 15 § 416.920a(d)(3). 16 the pertinent findings and conclusions based on the technique 17 . . . [and] include a specific finding as to the degree of § 416.920a(c)(4), (d)(2). If it does The ALJ’s written decision “must incorporate 18 19 9 20 21 22 23 24 25 26 27 28 Social Security regulations regarding the evaluation of mental impairments were last amended effective March 27, 2017. When, as here, the ALJ’s decision is the final decision of the Commissioner, the reviewing court generally applies the law in effect at the time of the ALJ’s decision. See Lowry v. Astrue, 474 F. App’x 801, 804 n.2 (2d Cir. 2012) (applying version of regulation in effect at time of ALJ’s decision despite subsequent amendment); Garrett ex rel. Moore v. Barnhart, 366 F.3d 643, 647 (8th Cir. 2004) (“We apply the rules that were in effect at the time the Commissioner’s decision became final.”); Spencer v. Colvin, No. 3:15-CV-05925-DWC, 2016 WL 7046848, at *9 n.4 (W.D. Wash. Dec. 1, 2016) (“42 U.S.C. § 405 does not contain any express authorization from Congress allowing the Commissioner to engage in retroactive rulemaking”). Accordingly, citations to 20 C.F.R. § 416.920a are to the version in effect from June 13, 2011, to January 16, 2017. 9 1 2 limitation in each of the functional areas.” § 416.920a(e)(4). In assessing a disability claim, an ALJ has a “duty to fully 3 and fairly develop the record” and “assure that [a] claimant’s 4 interests are considered.” 5 F.3d 925, 930 (9th Cir. 2014) (citation omitted); see also Howard 6 ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) 7 (“In making a determination of disability, the ALJ must develop 8 the record and interpret the medical evidence.”). 9 nonetheless remains the claimant’s burden to produce evidence in Garcia v. Comm’r of Soc. Sec., 768 But it 10 support of her disability claim. 11 F.3d 453, 459 (9th Cir. 2001) (as amended). 12 duty to develop the record further is triggered only when there 13 is ambiguous evidence or when the record is inadequate to allow 14 for proper evaluation of the evidence.” 15 F.3d 881, 885 (9th Cir. 2010) (as amended May 19, 2011) (citation 16 omitted); accord Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th 17 Cir. 2001). 18 See Mayes v. Massanari, 276 Moreover, the “ALJ’s McLeod v. Astrue, 640 A claimant’s RFC is “the most [she] can still do” despite 19 impairments and related symptoms that “may cause physical and 20 mental limitations” affecting “what [she] can do in a work 21 setting.” 22 ALJ’s RFC assessment when the ALJ has applied the proper legal 23 standard and substantial evidence in the record as a whole 24 supports the decision. 25 (9th Cir. 2005). 26 evidence in the record and “explain in [his] decision the weight 27 given to . . . [the] opinions from treating sources, nontreating 28 sources, and other nonexamining sources.” § 416.945(a)(1). A district court must uphold an Bayliss v. Barnhart, 427 F.3d 1211, 1217 The ALJ should consider all the medical 10 § 416.945(e)(2)(ii). 1 “[T]he findings of a nontreating, nonexamining physician can 2 amount to substantial evidence, so long as other evidence in the 3 record supports those findings.” 4 522 (9th Cir. 1996) (per curiam) (as amended). 5 alleges mental-health limitations, the ALJ should “first assess 6 the nature and extent of [her] mental limitations and 7 restrictions and then determine [her] residual functional 8 capacity for work activity on a regular and continuing basis.” 9 § 416.945(c); see also § 416.945(a)(1) (“We will assess your Saelee v. Chater, 94 F.3d 520, When a claimant 10 residual functional capacity based on all the relevant evidence 11 in your case record.”); SSR 96-8p, 1996 WL 374184, at *2 (July 2, 12 1996) (RFC must be “based on all of the relevant evidence in the 13 case record”). 14 In making an RFC determination, the ALJ may consider the 15 limitations supported in the record and need not consider 16 properly rejected evidence or subjective complaints. 17 Bayliss, 427 F.3d at 1217 (upholding ALJ’s RFC determination 18 because “the ALJ took into account those limitations for which 19 there was record support that did not depend on [plaintiff’s] 20 subjective complaints”); Batson v. Comm’r of Soc. Sec. Admin., 21 359 F.3d 1190, 1197 (9th Cir. 2004) (ALJ not required to 22 incorporate into RFC any findings from treating-physician 23 opinions that were “permissibly discounted”). 24 25 26 27 28 11 See 1 2. Relevant background 2 3 a. Mental-health treatment records The sole mental-health-related record from Plaintiff’s time 4 in prison10 is a 2013 annual treatment report, which indicates 5 that she had not received mental-health services for any serious 6 conditions (see AR 317) and did not require an “[a]cute level of 7 care” (id.). 8 mental-health services “as a condition of her . . . probation 9 requirements.” 10 After her release in 2014, she was referred for (AR 323.) At her initial assessment, in May 2014, Plaintiff reported 11 experiencing “extensive trauma” from “torture[]” and being “held 12 captive” in 1982, resulting in “PTSD” and “depressive symptoms” 13 that were “further exacerbat[ed]” by “domestic violence 14 relationships.” 15 “resulted in increased symptoms and detrimental impact on 16 functioning.” 17 record doesn’t indicate when it was first prescribed), and it was 18 “[e]ffective.” 19 speciality are not legible, found her to be “[w]ell [g]roomed” 20 and “[c]alm,” with “[u]nimpaired” speech, intellectual 21 functioning, memory, and thought processes and “[i]ntact” 22 concentration and judgment. (Id.) (Id.) She reported that lack of treatment She was apparently taking Zoloft11 (the (AR 324.) The assessor, whose name and (AR 326.) But Plaintiff had a 23 24 25 26 27 28 10 Plaintiff reported that her “[a]rrest history began in 1993” and that she had had “[five] incidences of incarceration.” (AR 325.) 11 Zoloft treats depression, panic attacks, and social anxiety disorder. See Zoloft, WebMD, https://www.webmd.com/ drugs/2/drug-35-8095/zoloft-oral/sertraline-oral/details (last visited Feb. 14, 2019). 12 1 “[c]onstricted,” “[b]lunted,” and “[f]lat” affect, and she 2 appeared “[a]nxious.” 3 “[p]osttraumatic [s]tress [d]isorder” and “[d]epressive 4 [d]isorder.” 5 (Id.) She was diagnosed with (AR 327.) On June 10, 2014, Plaintiff met with psychiatrist Heather 6 Kurera for “initial medication support service” and “[s]upportive 7 therapy.” 8 depression” and anxiety but reported experiencing “[p]anic” a few 9 times a month and often feeling like “she [was] being followed, (AR 435-37.) 10 watched.” 11 “assigned to [a mental health] ward” in prison “because she was 12 on meds.”12 13 this time – worrie[d] she would steal and [said] ‘I can’t work 14 with the public.’” 15 “depressed, anxious” mood but demonstrated “linear, logical and 16 goal directed” thought processes and “fair” insight, “with intact 17 judgment.” 18 of a generalized sense of not being safe and not being able to 19 trust others . . . no other evidence of a thought [disorder.]” 20 (AR 437.) 21 PTSD and depression” and prescribed trazodone13 “for sleep.” 22 (Id.) 23 (AR 435.) She “denie[d] current feelings of (Id.) She told the doctor that she had been She “report[ed] no interest in working at (AR 437.) (AR 436.) Dr. Kurera observed that she had a Plaintiff’s reported “paranoia” was “more She increased Plaintiff’s Zoloft dosage “to target That same day, Dr. Kurera filled out a report to assist in 24 12 25 26 27 28 The record does not show where Plaintiff was housed in prison. 13 Trazodone treats depression and may decrease related insomnia. See Trazodone HCL, WebMD, https://www.webmd.com/drugs/ 2/drug-11188-89/trazodone-oral/trazodone-oral/details (last visited Feb. 14, 2019). 13 1 Plaintiff’s transition to services in San Bernardino County, 2 where she had evidently moved. 3 Plaintiff had a “[t]emporary disability” that would last one 4 year, until June 10, 2015. 5 treatment” was needed “before determining permanence.” (Id.) 6 She could not perform any type of work in the interim. (Id.) 7 (AR 328.) (Id.) She marked that An “adequate trial of Plaintiff was “discharged” from her probation-mandated 8 treatment program in June 2014 after moving to a different 9 county. (AR 439; see also generally AR 438-41.) The discharge 10 summary states that she “received weekly mental health services14 11 [and] was very engaged and cooperative throughout her time in 12 treatment.” 13 moderate progress towards decreasing PTSD symptoms,” and she “was 14 stable at discharge.” 15 (AR 439.) In just over a month, she had “made (AR 438, 440.) In November 2014, Plaintiff was assessed for treatment in 16 San Bernardino County. (AR 473-76.) After the initial intake 17 appointment (see id.), psychiatrist Sushma Sachdev-Wali provided 18 medication management (see AR 478-80, 482-500). 19 Wali’s notes, which span November 2014 to April 2015, are brief 20 and largely illegible, but they clearly refer to several 21 medications, including Zoloft, Abilify,15 and Xanax.16 Dr. Sachdev- (See, 22 23 24 25 26 14 The record does not include notes from these appointments. (See AR 442 (letter indicating that only initial medication support service and discharge summary were provided).) 15 Abilify is an antipsychotic that treats mood disorders. See Abilify, WebMD, https://www.webmd.com/drugs/2/drug-64439/ abilify-oral/details (last visited Feb. 14, 2019). 27 16 Xanax treats anxiety and panic disorders. 28 14 See Xanax, (continued...) 1 e.g., AR 482.)17 2 [Plaintiff] for [c]ounseling” (AR 479), but the record doesn’t 3 indicate that Plaintiff received such counseling. 4 2016 hearing, she testified that she was on a wait list for 5 counseling. 6 7 In January 2015, the doctor “[re]ferred At the July (AR 48.) b. State-agency reviewing-physician records Psychiatrist Dan Funkenstein reviewed Plaintiff’s mental- 8 health records in July 2014 and opined that she had the ability 9 to do nonpublic, simple, repetitive tasks (abbreviated in the 10 record as “NP/SRT”). (AR 76, 78, 81-82.) 11 “[n]ot significantly limited” in her “ability to remember 12 locations and work-like procedures,” “understand and remember 13 very short and simple instructions,” “carry out very short and 14 simple instructions,” “work in coordination with or in proximity 15 to others without being distracted,” “make simple work-related 16 decisions,” “ask simple questions,” “maintain socially 17 appropriate behavior,” “take appropriate precautions,” “use 18 public transportation,” or “set realistic goals or make plans 19 independently of others.” 20 limited” in her “ability to understand and remember detailed 21 instructions,” “carry out detailed instructions,” “maintain 22 attention and concentration for extended periods,” “perform (AR 81-82.) He found that she was But she was “moderately 23 24 25 26 27 28 16 (...continued) WebMD, https://www.webmd.com/drugs/2/drug-9824/xanax-oral/details (last visited Feb. 14, 2019). 17 Dr. Sachdev-Wali’s notes indicate that Plaintiff reported she had received inpatient psychiatric treatment in 1997 for an unspecified reason. (AR 478.) The AR does not contain any record of that hospitalization, however. 15 1 activities within a schedule,” “sustain an ordinary routine 2 without special supervision,” “complete a normal workday,” 3 “interact appropriately with the general public,” “get along with 4 coworkers,” and “respond appropriately to changes in the work 5 setting.” 6 Plaintiff’s medical records and a “prior [consulting evaluation]” 7 that was “not severe.” (See AR 76, 78, 82.) On reconsideration, 8 psychiatrist H. Amado affirmed his findings. (See AR 93, 95, 98- 9 100.) (Id.) 3. 10 12 Analysis a. 11 In support of his findings, he cited Mental-impairment evaluation Plaintiff argues that the ALJ did not apply the “special 13 techniques,” citing the evaluation process codified in 14 § 416.920a. 15 argument, however, and in fact the ALJ went through each of the 16 required steps to evaluate her mental impairment. 17 AR 18-21.) 18 that Plaintiff had “severe” bipolar affective disorder. 19 He noted that she had “mild restriction” in activities of daily 20 living and “moderate difficulties” in “social functioning” and 21 “concentration, persistence[, and] pace.” 22 “no episodes of decompensation . . . [or] psychiatric 23 hospitalizations.” 24 limitations in each of the four functional areas, the ALJ met the 25 requirements set forth in § 416.920a. 26 F.3d 1071, 1078 (finding that “[t]he ALJ clearly met [the 27 regulatory] requirement by rating and assessing [the claimant’s] 28 limitations in each of the[] functional areas” and “was not (J. Stip. at 9.) She does not develop that (See generally Considering all the relevant evidence, the ALJ found (Id.) (AR 20.) (AR 18.) She had had By rating and assessing Plaintiff’s 16 See Hoopai v. Astrue, 499 1 required to make any more specific findings of the claimant’s 2 functional limitations”). 3 impairments, considered singly and in combination,” did not meet 4 a listing (AR 19-21), he went on to assess her RFC (AR 21). 5 Defendant notes, “[t]he ALJ clearly applied the ‘special 6 technique’ as required by the regulations,” and “Plaintiff does 7 not bring any challenge to these specific findings.” 8 at 14.)18 9 After concluding that her “mental As (J. Stip. Without a more specific allegation of what the ALJ allegedly 10 did wrong, Plaintiff’s claim concerning the special technique 11 fails. 12 1161 n.2 (9th Cir. 2008). See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 13 b. Duty to develop the record 14 Plaintiff argues that certain records are missing, including 15 psychiatric records from the California Department of Corrections 16 and Rehabilitation, weekly therapy records, and other unspecified 17 treatment records. 18 the record was thus insufficient, triggering the ALJ’s duty to 19 develop it. 20 “long history of mental illness” “heightened” the ALJ’s duty to 21 develop the record, citing Higbee v. Sullivan, 975 F.2d 558, 562 22 (9th Cir. 1992) (per curiam), even though she was represented by 23 counsel throughout the proceedings. 24 (See J. Stip. at 10, 12.) (See id. at 10-11.) She implies that She also contends that her (See J. Stip. at 10.) As an initial matter and as argued by Defendant (see id. at 25 26 27 28 18 In her reply, Plaintiff seems to suggest that the ALJ “base[d] his opinion on factually incorrect evidence.” (J. Stip. at 19.) She does not specify which evidence was factually incorrect, and no such factual inaccuracies are apparent to the Court. 17 1 14-16), not only did Plaintiff fail to raise this issue during 2 the administrative proceedings (see generally AR 32-69 (hearing 3 transcript), 171-72 (request for review of ALJ decision)), but 4 her attorney affirmatively represented that the record was 5 complete (see AR 34). 6 to make this claim in federal court. 7 F.3d 1111, 1115 (9th Cir. 1999) (as amended) (reviewing court 8 need not address issues not raised before ALJ or Appeals Council 9 unless manifest injustice would result); Shaibi v. Berryhill, 883 Accordingly, she likely waived the right See Meanel v. Apfel, 172 10 F.3d 1102, 1109 (9th Cir. 2017) (as amended Feb. 28, 2018) 11 (upholding and applying Meanel after Sims v. Apfel, 530 U.S. 103 12 (2000)); see also Phillips v. Colvin, 593 F. App’x 683, 684 (9th 13 Cir. 2015) (“This issue was waived by [claimant]’s failure to 14 raise it at the administrative level when he was represented by 15 counsel, and [claimant] has not demonstrated manifest injustice 16 excusing the failure.”). 17 Even if Plaintiff could properly raise an argument about 18 missing records, it would likely fail. She, not the ALJ, was 19 required to produce evidence to support her disability claim. 20 See Mayes, 276 F.3d at 459; Meanel, 172 F.3d at 1115. 21 here included opinions from state-agency reviewing psychological 22 consultants and notes from Plaintiff’s treating psychiatrists and 23 mental-health providers. 24 28, 435-38, 473-500.) 25 from May 2013 to “[p]resent” were requested from the California 26 Department of Corrections and Rehabilitation. 27 the only mental-health record provided by the CDCR indicated that The record (See generally AR 78-82, 95-100, 323- Counter to her claim, all medical records 28 18 (See AR 320.) And 1 Plaintiff did not require mental-health services.19 2 18.) 3 whether any records were missing, and the attorney confirmed that 4 the record was “pretty complete” and that “we have everything 5 . . . that’s out there.” 6 (See AR 317- Furthermore, the ALJ asked her attorney at the hearing (AR 34, 67.) Higbee recognizes that an ALJ’s duty to develop the record 7 is heightened when a claimant is unrepresented or when she 8 previously was eligible for benefits based on mental illness; it 9 does not help Plaintiff’s case. See 975 F.2d at 561-62 10 (collecting cases). 11 throughout her administrative hearings and continues to be 12 represented. 13 based on mental illness. 14 another ALJ dismissed disability claim), 74-75 (stating that in 15 2011, consulting internist determined that she could do medium 16 work, consulting psychiatrist found “[n]o limitations,” and claim 17 “was dismissed” after ALJ hearing), 194 (“Chavez . . . screening 18 guide” indicating previous claim was not “final” decision).) 19 Therefore, Higbee is not instructive. 20 21 Plaintiff was represented by counsel She also has never been found eligible for benefits (Cf. AR 35 (ALJ noting that in 2012, Plaintiff is correct that the record does not include evidence of the weekly unspecified “therapy” sessions she 22 23 19 24 25 26 27 28 The prison records were not actually needed, in any case. The ALJ found and Plaintiff does not contest that the alleged onset date was May 16, 2014, which was apparently after her release from prison. Plaintiff asserts that she was housed in a mental-health ward at some point while in prison (see J. Stip. at 10), but given that her incarcerations apparently spanned 20 years (see AR 325) and that her most recent prison record said she didn’t need mental-health services (see AR 317-18), that information by itself is not helpful. 19 1 apparently attended. 2 But, as Defendant points out, she had the burden of producing 3 those records in the first place or raising the issue earlier. 4 See Mayes, 276 F.3d at 459; (see also J. Stip. at 14-15). 5 she still has not pointed to any additional records that the ALJ 6 should have considered or provided the name of the therapist she 7 allegedly saw every week (see generally id. at 10-11). 8 9 (See J. Stip. at 10; see also AR 212, 225.) And In any event, the ALJ properly discounted the severity of Plaintiff’s alleged mental-health limitations in part because she 10 did not “require extensive counseling.” 11 Plaintiff was attending weekly sessions, that was not 12 inconsistent with the ALJ’s reasoning. 13 lasted for only a month (see AR 212, 225 (function reports dated 14 June 2014, during month she attended Prototypes clinic, 15 describing weekly therapy sessions), 438-40 (discharge summary 16 from Prototypes clinic dated June 2014, describing one month of 17 treatment)), after which she was on a wait list for counseling 18 from her new provider (see AR 48, 479). 19 in Section V.B.2, Plaintiff testified that her depression, 20 anxiety, and mood swings were controlled just with medication. 21 (AR 23.) Even if Those sessions apparently Moreover, as explained Thus, the ALJ did not err in not developing the record 22 further, but even if he did, Plaintiff waived her right to make 23 the claim by agreeing that the record was complete. 24 172 F.3d at 1115. 25 c. 26 See Meanel, Plaintiff’s RFC Accounting for Plaintiff’s mental limitations, the ALJ 27 limited her “to work involving simple repetitive tasks[,] no more 28 than occasional contact with co-workers, and no contact with the 20 1 general public.” (AR 21.) He considered Plaintiff’s statements 2 (AR 21-22), treatment history (AR 23), and daily activities (id.) 3 as well as opinions from medical sources (AR 23-24). 4 argues that his analysis did not address her “ability to 5 understand, to carry out and remember instructions, to respond 6 appropriately to supervision, coworkers, and customary work 7 pressures in a work setting” (J. Stip. at 11), but the ALJ 8 explicitly referred to each of these concerns in his decision 9 (see AR 20-24 (limiting her to simple, repetitive work, Plaintiff 10 occasional contact with coworkers, and no contact with public)). 11 Plaintiff claims that “[c]onsultative [e]xaminer Amado, MD” 12 found that she had “difficulty carrying out short and simple 13 instructions, detailed instructions” and was unable “to maintain 14 attention and concentration for an extended period of time or to 15 sustain ordinary routine without special supervision.” 16 at 11.) But as Defendant notes, that “mischaracterizes” the 17 record. (Id. at 16.) 18 Plaintiff’s files but did not examine her) actually found that 19 Plaintiff was “[n]ot significantly limited” in her ability to 20 “understand,” “remember,” or “carry out very short and simple 21 instructions” and only “moderately limited” in her ability to do 22 the same for “detailed instructions.” 23 determined that she was “[m]oderately limited” in her “ability to 24 maintain attention and concentration for extended periods” and 25 “sustain an ordinary routine without special supervision” but not 26 unable to do so. 27 Plaintiff’s mental impairments by limiting her to simple, 28 repetitive work, occasional contact with coworkers, and no (J. Stip. Dr. Amado (who reviewed some of (AR 98.) (AR 98-99.) And Dr. Amado In any event, the ALJ addressed 21 1 contact with the public. 2 Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). 3 (AR 21.) See Stubbs-Danielson v. Plaintiff also suggests that the ALJ failed to address 4 limitations noted by her son (J. Stip. at 11), but again, that 5 misstates the record. 6 filled out by Plaintiff and her son (see AR 208-29) and 7 determined that although they “show deficits in some activities,” 8 they also “show [that she] is still able to handle her personal 9 hygiene, . . . get out of her home, [and] . . . interact with The ALJ considered the function reports 10 others without difficulties or problems” (AR 23). Therefore, the 11 ALJ properly accounted for her son’s statements. 12 Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009); see also Robbins, 13 466 F.3d at 885 (“[T]he ALJ is required to account for all lay 14 witness testimony in the discussion of his or her findings.” 15 (citation omitted)). See Bruce v. 16 B. 17 Plaintiff argues that the ALJ should have given “great 18 weight” to Dr. Kurera’s “evaluation” and claims that the “record 19 contradicts the ALJ’s finding.” 20 below, the ALJ properly found that Dr. Kurera’s opinion merited 21 “little weight” (AR 24), and remand is not necessary. 22 23 The ALJ Properly Assessed Dr. Kurera’s Opinion 1. (J. Stip. at 12.) As explained Applicable law Three types of physicians may offer opinions in Social 24 Security cases: those who directly treated the plaintiff, those 25 who examined but did not treat the plaintiff, and those who did 26 neither. 27 opinion is generally entitled to more weight than an examining 28 physician’s, and an examining physician’s opinion is generally See Lester, 81 F.3d at 830. 22 A treating physician’s 1 entitled to more weight than a nonexamining physician’s. 2 see § 416.927.20 3 Id.; The ALJ may disregard a physician’s opinion regardless of 4 whether it is contradicted. Magallanes v. Bowen, 881 F.2d 747, 5 751 (9th Cir. 1989); see also Carmickle, 533 F.3d at 1164. 6 a doctor’s opinion is not contradicted by other medical-opinion 7 evidence, however, it may be rejected only for a “clear and 8 convincing” reason. 9 F.3d at 1164 (citing Lester, 81 F.3d at 830-31). When Magallanes, 881 F.2d at 751; Carmickle, 533 When it is 10 contradicted, the ALJ need provide only a “specific and 11 legitimate” reason for discounting it. 12 1164 (citing Lester, 81 F.3d at 830-31). 13 doctor’s opinion, moreover, depends on whether it is consistent 14 with the record and accompanied by adequate explanation, among 15 other things. 16 F.3d 625, 631 (9th Cir. 2007) (factors in assessing physician’s 17 opinion include length of treatment relationship, frequency of 18 examination, and nature and extent of treatment relationship). 19 Carmickle, 533 F.3d at The weight given a See § 416.927(c), (e); see also Orn v. Astrue, 495 Furthermore, “[t]he ALJ need not accept the opinion of any 20 physician . . . if that opinion is brief, conclusory, and 21 inadequately supported by clinical findings.” 22 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (citation omitted); 23 accord Batson, 359 F.3d at 1195; see also McLeod, 640 F.3d at 24 884-85 (finding that treating physician’s opinion “is not binding Thomas v. 25 26 27 28 20 Social Security regulations regarding the evaluation of opinion evidence were amended effective March 27, 2017. See § 416.927. For the reasons stated supra in note 9, citations to § 416.927 are to the version in effect from August 24, 2012, to March 26, 2017. 23 1 on an ALJ with respect to the existence of an impairment or the 2 ultimate determination of disability” (citation omitted)). 3 ALJ need not recite “magic words” to reject a physician’s opinion 4 or a portion of it; the court may draw “specific and legitimate 5 inferences” from the ALJ’s opinion. 6 7 2. An Magallanes, 881 F.2d at 755. Analysis The ALJ gave Dr. Kurera’s opinion “little weight” because it 8 was based on only two visits with Plaintiff,21 did not accord 9 with her “conservative treatment,” and was not supported by the 10 11 medical records. (AR 24.) Inconsistency with the medical evidence, including a 12 doctor’s own treatment notes, is a specific and legitimate reason 13 to discount a treating physician’s opinion. 14 Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008); Connett v. Barnhart, 15 340 F.3d 871, 875 (9th Cir. 2003) (physician’s opinion properly 16 rejected when his own treatment notes “provide[d] no basis for 17 functional restrictions he opined should be imposed on 18 [plaintiff]”); Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 19 2001) (ALJ permissibly rejected physician’s opinion when it was 20 “implausible” and “not supported by any findings by any doctor,” 21 including herself). 22 why a year-long trial period was necessary to determine permanent 23 disability, nor did they include evidence for temporary See Tommasetti v. Dr. Kurera’s treatment notes did not explain 24 21 25 26 27 28 In fact, Plaintiff apparently met with Dr. Kurera only once, in June 2014. The May 2014 initial assessment cited by the ALJ (AR 24) was performed by someone else at the clinic (see AR 327 (initial assessment bearing signatures other than Dr. Kurera’s)). Further, Dr. Kurera’s one session with Plaintiff was conducted “telementally,” apparently by computer or phone. (See AR 437.) 24 1 disability. (See AR 328, 435-37.) At their sole appointment, 2 she recorded Plaintiff’s self-reported history and found that she 3 had “linear, logical and goal-directed” thought processes; “fair” 4 insight; and “intact judgment.” 5 observed that Plaintiff had a “depressed, anxious” mood (AR 436), 6 Plaintiff denied feeling depressed or anxious (AR 435). 7 Moreover, the initial assessment at the clinic cited by the ALJ 8 (AR 24), performed a few weeks before by someone other than Dr. 9 Kurera, found her “[n]ormal,” “[u]nimpaired,” or “[i]ntact” in (AR 435-37.) Though she 10 every way except that she had “[c]urrent lack of 11 pleasure/hopelessness,” was “[i]solated” and “[w]ithdrawn,” and 12 had a “[c]onstricted,” “[b]lunted,” and “[f]lat” affect. 13 326.) 14 and intellectual functioning were “[u]nimpaired.” 15 (AR She had no “thought process disturbances,” and her memory (Id.) Furthermore, Dr. Kurera evaluated Plaintiff only once before 16 opining that she would be “temporarily disabled from June 10, 17 2014 through June 10, 2015.” 18 limited nature of her treating relationship with Plaintiff 19 entitled the ALJ to give her opinion less weight. 20 § 416.927(c); see also Orn, 495 F.3d at 631. 21 (AR 24 (citing AR 328).) The See Shortly after Dr. Kurera provided her opinion, Plaintiff 22 moved and switched treatment providers. As the ALJ noted, 23 “records from the new provider show the claimant only required 24 medication visits and minimal, if any, counseling.” 25 also generally AR 473-500.) 26 a wait list for counseling (AR 48), but she apparently was stable 27 on her medication regimen. 28 “balance[d] out” her depression, rendering it “okay . . . to (AR 24; see Plaintiff testified that she was on She testified that her medications 25 1 where I don’t have . . . anxiety and depression.” 2 Similarly, she testified that she experienced “mood swings” only 3 “[i]f I miss my medicine.” 4 (AR 48.) (AR 56.) Plaintiff argues that her treatment was “not limited to 5 medication” (J. Stip. at 13), but the record shows that it was 6 (see generally AR 473-500 (no evidence of counseling from Nov. 7 2014 on)). 8 evaluation is consistent with Dr. Kurera’s assessment,” citing 9 notes from the former’s “initial evaluation,” but that evaluation Plaintiff also argues that “Dr. Sachdev-Wali’s 10 was not done by Dr. Sachdev-Wali,22 and it consisted primarily of 11 Plaintiff’s self-reported symptoms, which the ALJ discounted (a 12 finding Plaintiff has not appealed). 13 also AR 473-74.) 14 opinion was undermined by the medical records. 15 (See J. Stip. at 12-13; see Thus, the ALJ properly found that Dr. Kurera’s (AR 24.) Given the limited number of meetings, lack of supporting 16 medical evidence, and Plaintiff’s subsequent and apparently 17 successful medication-only treatment, the ALJ appropriately gave 18 Dr. Kurera’s opinion “little weight.” 19 F.3d at 631; Thomas, 278 F.3d at 957. (AR 24.) See Orn, 495 20 C. The ALJ Properly Determined Plaintiff’s RFC 21 Plaintiff argues that the ALJ improperly found that she 22 could perform light work despite arthralgia and COPD. 23 at 19-21.) 24 and remand is not warranted on this basis. (J. Stip. For the reasons discussed below, the ALJ did not err 25 26 27 28 22 The form was completed by “Jessica Villareal,” who added the letters MAMFTI to her signature, suggesting she was not a medical doctor. (AR 476.) 26 1 1. 2 3 Relevant background a. Arthralgia treatment records Routine exams showed that Plaintiff had mostly normal range 4 of motion and muscle strength. (See, e.g., AR 352 (July 2014 5 examination: “alignment of the major joints and spine is 6 symmetrical”; no “signs of muscle atrophy”; “no swelling, 7 effusions, temperature changes, tenderness or crepitus” on 8 palpation; “no restriction or instability related to ligamentous 9 laxity”; “[m]uscle strength testing is 5/5 in all major muscle 10 groups”), 506 (May 2016 examination yielding similar results).) 11 Despite her complaints of knee and back pain, x-rays done in 2014 12 revealed no or minimal issues. 13 symmetric[,] . . . osseous structures and joint spaces are 14 intact[,] . . . no fractures or significant arthritic changes”), 15 358 (“[m]inimal scoliosis and degenerative changes are noted in 16 the spine”), 471 (“hips are symmetric[,] [n]o fractures or 17 arthritic changes are observed”).) 18 however, apparently revealed a torn meniscus. 19 (orthopedist notes).)23 20 her right knee24 (see AR 540) or spine (see AR 541-42). 21 (See AR 357 (“knees are An MRI done of her left knee, (See AR 412 X-rays done in 2016 showed no changes to In October 2014, Plaintiff saw orthopedist Jay Shah for 22 concerns about her left knee. (AR 410-13.) She told him that 23 her symptoms were “relieved by medication” like ibuprofen and 24 25 23 26 24 27 28 The MRI does not appear to be in the record. The 2014 knee x-rays were bilateral. (See AR 357.) Plaintiff’s complaints center on her left knee (see, e.g. AR 43), but the record doesn’t include diagnostic imaging for that knee after 2014. 27 1 “exacerbated by prolonged standing and bending.” 2 found no “effusion,” “excessive varus or valgus alignment,” or 3 “patellofemoral crepitus or patellar instability.” 4 She had “full extension against resistance without difficulty”; 5 the patella “track[ed] well clinically”; and the patellofemoral 6 joint was not tender. 7 except for the “McMurray’s test when loading the medial 8 compartments.”25 9 positive for a meniscal tear.” (Id.) (Id.) (AR 410.) He (AR 411.) All clinical testing was negative “The compression/rotation test [was] (Id.) Dr. Shah “[d]iscussed 10 conservative and surgical options,” and Plaintiff opted to try 11 conservative measures first. 12 of lidocaine26 and Depo Medrol,27 which led to “improvement in 13 symptoms,” and he referred her to physical therapy. 14 (AR 412.) He gave her injections (Id.) In May 2015, Plaintiff saw a physician’s assistant and 15 reported “lower back pain ongoing for years.” 16 said that she was going to have a “torn left meniscus . . . 17 repaired” but that an orthopedist told her to do physical therapy 18 first. 19 because the provider she was referred to was too far away. (Id.) (AR 511.) She She was not doing physical therapy, though, (Id.) 20 25 21 22 A McMurray test detects internal tears in the knee joint. See Diagnosing Knee Injury with a McMurray Test, verywellhealth, https://www.verywellhealth.com/mcmurray-test-2549599 (last updated June 9, 2017). 23 26 24 25 26 27 28 Lidocaine is an anesthetic. See lidocaine injection, WebMD, https://www.medicinenet.com/lidocaine-injection/ article.htm#why_is_lidocaine_injection_prescribed_to_patients? (last visited Feb. 14, 2019). 27 Depo Medrol is an injectable form of methylprednisolone, which treats inflamation. Methylprednisolone Injection, MedlinePlus, https://medlineplus.gov/druginfo/meds/a601157.html (last updated May 15, 2016). 28 1 The physician’s assistant observed that Plaintiff’s gait was 2 “normal” and her balance was “easy.” 3 that the range of motion in her back was “normal” but “with pain 4 on full rotation and flexion.” 5 straight-leg-raise test at 30 degrees.28 6 diclofenac.29 (Id.) (AR 512.) He also found She had a positive (Id.) He prescribed (AR 513.) 7 In June 2015, Plaintiff apparently had a “left knee 8 arthroscopy with partial medial menisectomy”30 scheduled. 9 508; see also AR 510.) (AR Preoperative records are in the record, 10 but the actual procedure is not documented.31 11 At the July 2016 hearing, Plaintiff testified that she still had 12 knee pain (AR 43) but did not use an assistive device for walking (See AR 508-11.) 13 14 28 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A straight-leg-raise test checks the mechanical movement of neurological tissues and their sensitivity to stress and compression when disc herniation is suspected. See Straight Leg Raise Test, Physiopedia, https://www.physio-pedia.com/ Straight_Leg_Raise_Test (last visited Feb. 14, 2019). Pain when the leg is raised to between 30 and 70 degrees “is suggestive of lumbar disc herniation.” Id. 29 Diclofenac is an anti-inflammatory used to relieve pain and swelling caused by arthritis. See Diclofenac Sodium, WebMD, https://www.webmd.com/drugs/2/drug-4284-4049/diclofenac-oral/ diclofenac-sodium-enteric-coated-tablet-oral/details (last visited Feb. 14, 2019). 30 Arthroscopy is a minor surgical procedure used to diagnose and treat knee problems. See Knee Arthroscopy, OrthoInfo, https://orthoinfo.aaos.org/en/treatment/ knee-arthroscopy/ (last updated Sept. 2016). 31 The ALJ and Plaintiff’s attorney noticed that the surgery report appeared to be missing, but the attorney confirmed that “[w]e have everything,” and the ALJ remarked, without objection, that “even if we don’t have the left knee surgery, I don’t think I’m going to necessarily go out and necessarily say that we need to get it.” (AR 67-68.) 29 1 (AR 57). 2 3 b. COPD treatment records Plaintiff often complained about breathing troubles (see, 4 e.g., AR 44, 203), and diagnostic imaging revealed some 5 “scarring” and “[m]ild interstitial lung disease but no acute 6 infiltrates” (AR 358; see also AR 335). 7 yielded normal or mild results. 8 sounds are symmetric. 9 expiratory phase is within normal limits.”), 333 (“no use of Her examinations often (See, e.g., AR 332 (“[B]reath There are no wheezes or rales. The 10 accessory muscles for respiration”), 347 (respiration test 11 showing “[n]ormal” quality and rhythm), 348 (“lungs are clear to 12 percussion”), 452 (“mildly diminished breath sounds[,] . . . 13 wheeze on forced expiration[,] no rales”), 505 (“patient is 14 relaxed and breathes without effort”), 512 (“breathes without 15 effort . . . does not use the accessory muscles of respiration”), 16 528 (same).) 17 Plaintiff began seeing pulmonolgist Ahsan Qazi in September 18 2014. (AR 452-63.) At each of their appointments, she denied 19 chest pain and reported that her cough was “minimal occasional.” 20 (AR 452, 454, 457, 462.) 21 breath sounds” but no other issues. 22 symptoms, he prescribed combinations of inhaler medications, Dr. Qazi observed “mildly diminished 23 24 25 26 27 28 30 (Id.) To manage her 1 including Tudorza,32 Flovent,33 Xopenex,34 and Ventolin.35 2 453, 455, 458, 462-63.) 3 4 c. (See AR State-agency physicians’ opinions Plaintiff complained to examining internist Aida Cruz on 5 August 19, 2014, that she “had multiple joint pains mainly from 6 the left knee.” (AR 329.) 7 standing and sitting.” 8 “left shoulder pain,” and “low back pain.” 9 The pain was “worse with walking, (Id.) She also had “left hip pain,” (AR 329-30.) Dr. Cruz found that Plaintiff’s back had “normal” range of 10 motion and “no tenderness to palpation in the midline or 11 paraspinal areas.” 12 negative. 13 difficulty. 14 elbows, wrists, hips, and ankles was all “normal,” and her gait (Id.) (AR 332.) The straight-leg-raise test was She got on and off the examining table without (AR 331.) Range of motion in her neck, shoulders, 15 16 17 18 32 Tudorza is an inhaler medication that controls and prevents COPD symptoms. See Tudorza Pressair, WebMD, https:// www.webmd.com/drugs/2/drug-162180/tudorza-pressair-inhalation/ details (last visited Feb. 14, 2019). It must be used regularly and does not provide immediate relief. See id. 19 33 20 21 22 23 24 25 26 27 28 Flovent is another inhaler medication that controls and prevents COPD symptoms. See Flovent Aerosol, WebMD, https:// www.webmd.com/drugs/2/drug-13522/flovent-inhalation/details (last visited Feb. 14, 2019). It must be used regularly and does not provide immediate relief. See id. 34 Xopenex is an inhaler medication that provides quick relief from wheezing and shortness of breath. See Xopenex Vial for Nebulizer, WebMD, https://www.webmd.com/drugs/2/drug-17125/ xopenex-inhalation/details (last visited Feb. 14, 2019). 35 Ventolin is an inhaler medication that provides quick relief from wheezing and shortness of breath. See Ventolin Solution for Nebulization, WebMD, https://www.webmd.com/drugs/2/ drug-7082-3008/ventolin-inhalation/albuterol-salbutamol-solutioninhalation/details (last visited Feb. 14, 2019). 31 1 was also “normal.” 2 range of motion” but no “effusion” or “mediolateral or 3 anteroposterior instability.” 4 was “5/5 in all extremities,” and she had “[g]ood tone 5 bilaterally, with good active motion.” 6 determined that Plaintiff could do medium work but should “avoid 7 frequent kneeling, jumping and walking on uneven terrain due to 8 the knee condition.” 9 restrictions based on Plaintiff’s back, hip, or shoulder 10 11 (AR 331-33.) Her left knee had “limited (AR 333.) (AR 334.) Plaintiff’s strength (Id.) The doctor She did not assess any (See generally id.) complaints. As to Plaintiff’s COPD, Dr. Cruz obseved that she had 12 “symmetric” breath sounds, “no wheezes or rales,” and a “normal” 13 expiratory phase. 14 other medical records (see AR 330), she recommended that 15 Plaintiff “avoid exposure to extreme temperatures, chemical 16 pollutants or any pulmonary irritants” (AR 334). 17 (AR 332.) But because of her complaints and State reviewing-physician Joel Ross36 reviewed Plaintiff’s 18 records in September 2014 — before her surgery — and noted that 19 her left knee “exhibit[ed] limited [range of motion]” but her 20 “[g]ait and sensory and motor function were n[orma]l.” 21 Despite complaints of breathing troubles, her treating records 22 and consulting examination showed “clear breath sounds with no 23 rales or wheezing” and “no use of accessory muscles for 24 respiration.” (Id.) (AR 76.) He concluded that the medical evidence 25 26 27 28 36 Dr. Ross’s signature has a specialty code of 20, indicating a neurology practice. (AR 85); Program Operations Manual System (POMS) DI 24501.004, U.S. Soc. Sec. Admin. (May 15, 2015), https://secure.ssa.gov/apps10/poms.nsf/lnx/0424501004. 32 1 affirmed the consulting examiner’s finding that Plaintiff could 2 do medium work. 3 reconsideration in January 2015, state reviewing-physician G. 4 Taylor-Holmes37 confirmed that Plaintiff was not disabled and 5 could do medium, unskilled work. 6 7 2. (See AR 84; see also AR 76, 83.) On (AR 101.) Analysis The ALJ found that Plaintiff had severe impairments of 8 arthralgia and COPD (AR 18) but that neither met or equaled a 9 listing (AR 19). He noted that the COPD caused “moderate 10 obstruction” and the arthralgia limited “her capacity to lift, 11 carry, sit, stand and walk.” 12 showed that “her motor strength [was mostly] normal,” and so he 13 determined that she was “capable of light work.” 14 (AR 22.) But her medical records (Id.) Though Plaintiff frequently complained about trouble 15 breathing (see, e.g., AR 42, 47, 203), the ALJ found that her 16 “statements concerning the intensity, persistence and limiting 17 effects of [her] symptoms [were] not entirely consistent with the 18 medical evidence and other evidence in the record (AR 22), a 19 finding Plaintiff does not contest (see generally J. Stip.). 20 Indeed, the medical records show that Plaintiff’s respiration was 21 mostly normal. 22 limited to prescriptions for inhalers, and as the ALJ noted (AR 23 23), she apparently never needed emergency treatment (see AR 330 24 (Plaintiff denying “episodes of respiratory failure”), 354 (See, e.g., AR 332, 333, 348.) Her treatment was 25 26 27 28 37 Dr. Taylor-Holmes’s signature has a specialty code of 19, indicating an internal-medicine practice. (AR 103); Program Operations Manual System (POMS) DI 24501.004, U.S. Soc. Sec. Admin. (May 15, 2015), https://secure.ssa.gov/apps10/poms.nsf/ lnx/0424501004. 33 1 (noting in July 2014 that Plaintiff had been using inhalers for 2 two years and had not seen pulmonologist in that time)). 3 pulmonologist whom she began seeing in September 2014 observed 4 only “mild[]” symptoms. 5 evidence in the record, the ALJ limited Plaintiff’s RFC to 6 protect her from moderate or concentrated exposure to certain 7 environmental conditions that could “cause a flare-up of her 8 [COPD] symptoms.” 9 (See, e.g. AR 452.) The Considering all the (AR 22.) Contrary to Plaintiff’s assertion that the ALJ failed to 10 “address[]” her “physical limitations in isolation” (J. Stip. at 11 20), he also limited her RFC to allow for only occasional 12 kneeling, jumping, or walking on uneven terrain, citing her 13 reported knee and back pain (AR 22). 14 even though the record, as he noted, did not support the alleged 15 severity of her symptoms. 16 revealed “no joint degeneration” in her right knee and “only mild 17 findings” concerning her lower back. 18 see also AR 357-58.)38 19 (AR 23.) He assessed those limits Treatment records and x-rays (Id. (citing AR 540-42); Plaintiff complains that Defendant’s discussion of Dr. 20 Cruz’s findings that support the RFC is a “post hoc argument[]” 21 “which the ALJ did not make.” 22 extensively discussed Dr. Cruz’s findings. (J. Stip. at 20-21.) But the ALJ (See, e.g., AR 22- 23 24 25 26 27 28 38 Plaintiff also complains that the ALJ did not take into account Dr. Cruz’s finding of limited grip strength in her left hand. (J. Stip. at 20.) But the doctor noted that those findings were “with poor effort.” (AR 331.) The ALJ was not required to incorporate any hand limitation into the RFC. See Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (ALJ need not discuss “every piece of evidence” (citation omitted)). 34 1 2 24.) This argument is without merit. Because sufficient evidence supported the ALJ’s finding that 3 Plaintiff could do modified light work, remand is not warranted. 4 See Reddick, 157 F.3d at 720-21. 5 6 7 D. The ALJ Properly Evaluated the Combined Effects of Plaintiff’s Impairments Plaintiff argues that the ALJ failed to address her 8 impairments in combination. (J. Stip. at 21-22, 23.) But as 9 Defendant points out (see id. at 22), she does not specify how he 10 failed to do so, and her argument that “it might appear that 11 [she] could struggle with her lack of . . . breath[] and somehow 12 pull through[,] [b]ut in combination with her paranoia she does 13 not have the mental strength to prevail” (id. at 21-22) is not 14 supported by any medical evidence in the record. 15 The ALJ “considered all symptoms” when assessing Plaintiff’s 16 RFC (AR 21), noting that her “arthralgias” and “COPD” limited her 17 to light work with reduced exposure to certain environmental 18 conditions (AR 22). 19 disorder” and “alleged pain symptoms and breathing problems” 20 together caused “no more than a mild restriction in activities of 21 daily living” and “no more than moderate difficulties with regard 22 to concentration, persistence or pace” (AR 20), and he factored 23 these limitations into her RFC by restricting her to “simple 24 repetitive tasks” (AR 21; see also AR 22-23). 25 suggests, the ALJ “arguably . . . 26 effect of her impairments in limiting her to light work, when 27 three physicians opined that she could perform medium work.” 28 Stip. at 22.) He determined that her “alleged mood And as Defendant consider[ed] the combined (J. Plaintiff claims that is post hoc rationalization 35 1 (id. at 23), but the ALJ himself stated that he was giving the 2 medium-work opinions “partial weight” because they were 3 “inconsistent with the record” (AR 24) and was limiting her RFC 4 because of the “combined effects” of her impairments (AR 22). 5 Indeed, when he listed her severe impairments, which included 6 physical and mental ones, he specifically noted that they 7 “combine[d] to cause more than a minimal limitation on the 8 claimant’s ability to perform the basic work activities on a 9 regular and continuous basis.” 10 11 12 Because the record shows that the ALJ properly considered Plaintiff’s impairments in combination, remand is not warranted. E. 13 14 (AR 18.) The ALJ Properly Found at Step Five that Plaintiff Could Do Alternative Work Plaintiff argues that the Commissioner did not meet her 15 burden at step five of demonstrating that she could do the work 16 specified by the VE. 17 below, the ALJ properly found that she could do the small- 18 products-assembler work, and remand is not necessary. 19 20 1. (J. Stip. at 23-25.) But as discussed Applicable law At step five, the Commissioner has the burden of showing the 21 existence of work in the national economy that the claimant can 22 perform, taking into account her age, education, and vocational 23 background. 24 2001). 25 existing in substantial numbers in the national economy that 26 claimant can perform despite her identified limitations.” 27 Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). 28 When a VE provides evidence at step five about the See Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. To meet this burden, the ALJ must “identify specific jobs 36 1 requirements of a job, the ALJ has an affirmative responsibility 2 to ask about “any possible conflict” between that evidence and 3 the DOT. 4 Massachi v. Astrue, 486 F.3d 1149, 1152-54 (9th Cir. 2007) 5 (holding that application of SSR 00-4p is mandatory). 6 a conflict exists, the ALJ may accept VE testimony only if the 7 record contains “persuasive evidence to support the deviation.” 8 Pinto, 249 F.3d at 846 (citing Johnson, 60 F.3d at 1435); see 9 also Tommasetti, 533 F.3d at 1042 (finding error when “ALJ did See SSR 00-4p, 2000 WL 1898704, at *4 (Dec. 4, 2000); When such 10 not identify what aspect of the VE’s experience warranted 11 deviation from the DOT”). 12 An ALJ also has a responsibility to resolve “obvious or 13 apparent” conflicts between a VE’s testimony and the DOT. 14 Gutierrez v. Colvin, 844 F.3d 804, 808 (9th Cir. 2016). 15 conflict is “obvious or apparent” when it is at odds with DOT job 16 requirements related to tasks that are “essential, integral, or 17 expected parts of a job.” 18 necessity of a task is unlikely and unforeseeable,” the ALJ need 19 not “follow up with more specific questions.” 20 21 2. Id. A “[W]here the frequency or Id. Relevant background At the start of the VE’s testimony, the ALJ asked her to 22 “let us know the difference” if she “g[a]ve an opinion which is 23 different from the DOT,” and she said she would. 24 ALJ then asked her to assume an individual of Plaintiff’s age, 25 education, and work background who was limited to “light” work; 26 “occasional kneeling, jumping and walking on uneven terrain”; 27 “simple repetitive tasks”; “no more than occasional contact with 28 coworkers and no contact with the general public.” 37 (AR 62.) The (AR 63-64.) 1 The individual also had to avoid “even moderate exposure to fume, 2 odors, dust, gases and poor ventilation” and “concentrated 3 exposure to extreme cold, extreme heat, wetness and humidity.” 4 (AR 63.)39 5 The VE testified that such a person could be an assembler of 6 small products, DOT 706.684-022, 1991 WL 679050 (Jan. 1, 2016). 7 (AR 63; see also AR 64.) 8 “the interaction with coworkers and the public[] would . . . 9 eliminate a lot of the jobs,” and the VE confirmed that it would Plaintiff’s attorney questioned whether 10 but that work as a “table worker [or] bench hand assembler” would 11 still be doable. 3. 12 13 (AR 66.) Analysis Plaintiff argues that the ALJ erred at step five because the 14 “assembler of small parts” job “is generally performed on an 15 assembly line” and her RFC requires “limited contact with her co- 16 workers and no contact with the public.” 17 She claims that the job lacks “a logical bridge” with her RFC. 18 (Id. at 24.) 19 the limitations necessitated by her COPD. 20 (J. Stip. at 23-24.) Plaintiff also implies that the work does not meet (Id. at 23-24.) The DOT listing for assembler of small products makes clear 21 that the environmental conditions Plaintiff complains would 22 affect her COPD “do[] not exist.” 23 679050 (Jan. 1, 2016) (listing extreme cold or heat, “wet and/or 24 humid,” “toxic caustic chemicals,” and other environmental 25 conditions as “[n]ot [p]resent”). DOT 706.684-022, 1991 WL 26 27 28 39 The ALJ presented the VE with a few different hypotheticals, but the RFC he determined included the limitations in hypotheticals two and three, which are the ones noted. 38 1 And the listing rates working with people (including 2 “[t]aking [i]nstructions” and “[h]elping”) as “[n]ot 3 [s]ignificant” and “[t]alking” as “[n]ot [p]resent.” 4 description states that such a worker “[f]requently works at 5 bench as member of assembly group assembling one or two specific 6 parts and passing unit to another worker.” 7 that this type of interaction with coworkers goes beyond her RFC 8 (J. Stip. at 24, 25-26), but as Defendant points out, she “does 9 not provide evidence that working on an assembly line involves Id. Id. The Plaintiff argues 10 more than occasional interaction with co-workers,” only 11 “layperson conjecture” (id. at 25). 12 whose opinion the ALJ gave “good” weight (AR 24), specifically 13 found that although Plaintiff was “[m]oderately limited” in her 14 ability to “get along with coworkers” (AR 82), she was “[n]ot 15 significantly limited” in “work[ing] in coordination with or in 16 proximity to others without being distracted by them” (AR 81). 17 Indeed, Plaintiff’s attorney asked the VE about the compatibility 18 of assembly work and limited contact with coworkers, and the VE 19 appears to have confirmed that the jobs she identified were 20 appropriate. 21 Moreover, Dr. Funkenstein, (AR 66.) No “obvious or apparent” conflict therefore existed between 22 the DOT and the VE’s testimony. Gutierrez, 844 F.3d at 808; cf. 23 Bayliss, 427 F.3d at 1218 (“A VE’s recognized expertise provides 24 the necessary foundation for his or her testimony.”); 25 § 416.960(b)(2) (“vocational expert . . . may offer expert 26 opinion testimony in response to a hypothetical question”); SSR 27 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000) (SSA relies 28 “primarily on the DOT” at step five and may use VE “to resolve 39 1 complex vocational issues”). 2 Thus, the ALJ properly found that Plaintiff could do 3 alternative work and was not disabled. 4 VI. 5 (AR 25-26.) CONCLUSION Consistent with the foregoing and under sentence four of 42 6 U.S.C. § 405(g),40 IT IS ORDERED that judgment be entered 7 AFFIRMING the Commissioner’s decision, DENYING Plaintiff’s 8 request for payment of benefits or remand, and DISMISSING this 9 action with prejudice. 10 11 DATED: February 14, 2019 12 ______________________________ JEAN ROSENBLUTH U.S. MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 40 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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