Refugia De La Torre Vargas v. Commissioner of Social Security Administration, No. 5:2017cv02261 - Document 20 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen E. Scott. For the reasons stated above, IT IS ORDERED that judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits. (See document for further details.) (sbou)
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Refugia De La Torre Vargas v. Commissioner of Social Security Administration Doc. 20 1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 REFUGIA D. V., 12 13 14 15 Case No. 5:17-cv-02261-KES Plaintiff, MEMORANDUM OPINION AND ORDER v. NANCY A. BERRYHILL, Acting Commissioner of Social Security,1 Defendant. 16 17 18 I. 19 BACKGROUND 20 In January 2014, Refugia D. V. (“Plaintiff”) filed an application for disability 21 insurance benefits (“DIB”) and supplemental security income (“SSI”) alleging 22 disability commencing January 24, 2013, the day she stopped working.2 23 24 25 26 27 28 Effective November 17, 2017, Ms. Berryhill’s new title is “Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security.” 1 On January 24, 2013, Plaintiff went to the emergency room of the hospital where she worked complaining of chest pain and anxiety due to “stress of work.” AR 265-67. She was discharged the next day with “symptoms much improved.” 2 1 Dockets.Justia.com 1 Administrative Record (“AR”) 59, 163-166, 199. 2 On September 21, 2016, an Administrative Law Judge (“ALJ”) conducted a 3 hearing at which Plaintiff, who was represented by counsel, appeared and testified, 4 as did a vocational expert (“VE”). AR 38-58. 5 On November 22, 2016, the ALJ issued a decision denying Plaintiff’s 6 applications. AR 16-35. The ALJ found that Plaintiff suffered from medically 7 determinable severe impairments consisting of “degenerative disk disease of the 8 lumbar spine; and syringomyelia at C3 level.” AR 21. Despite these impairments, 9 the ALJ determined that Plaintiff had the residual functional capacity (“RFC”) to 10 perform work with the following exertional demands: 11 [S]he can lift and carry 20 pounds occasionally and frequently 10 12 pounds; can stand and walk in combination of two hours in an eight- 13 hour workday and sit for six hours in an eight-hour workday; can 14 occasionally push and pull with the bilateral extremities within the 15 weight limits; can occasionally climb ramps or stairs, balance, stoop, 16 kneel, crouch, and crawl; cannot climb ladders, ropes or scaffolds; 17 avoid walking on uneven terrain; cannot reach overhead bilaterally; 18 can frequently handle and finger on the right, but no limitation on the 19 left; and avoid all exposure to unprotected machinery or heights. 20 AR 25. The lifting/carrying limits in this RFC are consistent with light work, while 21 the walking/standing limits are consistent with sedentary work.3 22 23 AR 265. She was prescribed anti-anxiety medication to reduce stress. AR 267-68. 24 Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. 20 C.F.R. §§ 404.1567(b), 416.967(b). A “full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday.” SSR 83-10. In contrast, sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. 20 C.F.R. §§ 404.1567(a), 416.967(a). “Since being on one’s feet is required 25 26 27 28 3 2 1 Based on this RFC and the VE’s testimony, the ALJ determined that Plaintiff 2 could perform her past relevant work as generally performed (i.e., sedentary): the 3 jobs of medical case director and medical case manager, Dictionary of 4 Occupational Titles (“DOT”) codes 075.117-022 and 075.117-090. AR 29. The 5 ALJ concluded that Plaintiff was not disabled. Id. 6 II. 7 STANDARD OF REVIEW 8 9 A district court may review the Commissioner’s decision to deny benefits. The ALJ’s findings and decision should be upheld if they are free from legal error 10 and are supported by substantial evidence based on the record as a whole. 42 11 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. Astrue, 12 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such relevant 13 evidence as a reasonable person might accept as adequate to support a conclusion. 14 Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 15 2007). It is more than a scintilla, but less than a preponderance. Lingenfelter, 504 16 F.3d at 1035 (citing Robbins v. Comm’r of SSA, 466 F.3d 880, 882 (9th Cir. 17 2006)). To determine whether substantial evidence supports a finding, the 18 reviewing court “must review the administrative record as a whole, weighing both 19 the evidence that supports and the evidence that detracts from the Commissioner’s 20 conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). “If the 21 evidence can reasonably support either affirming or reversing,” the reviewing court 22 “may not substitute its judgment” for that of the Commissioner. Id. at 720-21. 23 24 “A decision of the ALJ will not be reversed for errors that are harmless.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Generally, an error is 25 26 27 28 ‘occasionally’ at the sedentary level of exertion, periods of standing or walking should generally total no more than about 2 hours of an 8-hour workday and sitting should generally total approximately 6 hours of an 8-hour workday.” SSR 83-10. 3 1 harmless if it either “occurred during a procedure or step the ALJ was not required 2 to perform,” or if it “was inconsequential to the ultimate nondisability 3 determination.” Stout v. Comm’r of SSA, 454 F.3d 1050, 1055 (9th Cir. 2006). 4 III. 5 ISSUES PRESENTED 6 Plaintiff’s appeal presents the following issues: 7 Issue One: Whether the ALJ erred in finding that Plaintiff’s “migraines and 8 9 10 11 12 drop foot” are not severe impairments. Issue Two: Whether the ALJ erred in evaluating Plaintiff’s subjective symptom testimony. Issues Three and Four: Whether the ALJ erred in evaluating the opinions of treating physician Dr. Luthra concerning Plaintiff’s physical and mental limitations. 13 Issue Five: Whether the ALJ properly developed the record. 14 Issue Six: Whether remand is required to permit the ALJ to evaluate new 15 evidence submitted to the Appeals Council but not made part of the administrative 16 record. 17 (Dkt. 19, Joint Stipulation [“JS”] at 3-4.) 18 IV. 19 DISCUSSION 20 ISSUE ONE: The Determination of Plaintiff’s Severe Impairments. 1. Step Two of the Sequential Evaluation Process. 21 22 The ALJ follows a five-step sequential evaluation process in assessing 23 whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4)4; Lester 24 v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1996). Step two requires the 25 Commissioner to determine whether the claimant has any severe medically 26 determinable impairment(s). A “medically determinable impairment” exists where 27 28 4 Citations are to regulations in effect at the time of the ALJ’s opinion. 4 1 “medical signs and laboratory findings … show that you have a medical 2 impairment(s) which could reasonably be expected to produce the pain or other 3 symptoms alleged….” 20 C.F.R. §§ 404.1529(a), 416.929(a). 4 Once a claimant has shown that he suffers from a medically determinable 5 impairment, he next has the burden of proving that these impairments are “severe.” 6 Edlund v. Massanari, 2001 U.S. App. LEXIS 17960, at * 23 (9th Cir. Aug. 9, 7 2001). An impairment is “severe” if it significantly limits a claimant’s physical or 8 mental ability to perform basic work activities. 20 C.F.R. §§ 404.1520(c), 9 416.920(c). Basic work activities are the abilities and aptitudes necessary to do 10 most jobs. 20 C.F.R. §§ 404.1521(b), 416.921(b). Examples of physical work 11 activities include walking, standing, sitting, reaching and carrying. Id. A severe 12 impairment is one that has “more than a minimal effect on the individual’s ability to 13 do work.” Social Security Ruling (“SSR”) 96-2p. Conversely, an impairment is 14 “non-severe” if it does not significantly limit a claimant’s ability to perform basic 15 work activities. 20 C.F.R. §§ 404.1521(a), 416.921(a). If a claimant does not have 16 a medically determinable impairment that is “severe” over a period of at least 17 twelve consecutive months, then the claimant is not disabled. 20 C.F.R. 18 §§ 404.1520(a), 404.1509, 416.920(a)(4)(ii), 416.909. 19 If an ALJ accounts for all the limitations caused by an impairment in the 20 assessed RFC, then the ALJ’s failure to label that impairment “severe,” even if 21 erroneous, is harmless error. Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) 22 (holding that any error to list a condition as severe was harmless because the ALJ 23 considered the condition when assessing the claimant’s limitations). 24 25 2. The ALJ’s Analysis. Regarding foot drop, the ALJ found as follows: 26 The undersigned finds that the claimant’s medically 27 determinable impairment of right foot drop is nonsevere. There is 28 objective evidence in the medical record that the claimant has been 5 1 evaluated and treated for headaches.5 For example, the record 2 indicates mild or no findings related to right foot drop, such as issues 3 with weakness, numbness, loss of function, pain, and inability to point 4 toes. Furthermore, no aggressive treatment was recommended or 5 anticipated for this condition. Accordingly, the claimant’s medically 6 determinable impairment of right foot drop is nonsevere. 7 8 AR 23. Regarding headaches, the ALJ found as follows: 9 The undersigned finds that the claimant’s medically 10 determinable impairment of headaches is nonsevere. There is 11 objective evidence in the medical record that the claimant has been 12 evaluated and treated for headaches. Moreover, in her headache 13 questionnaire, she alleged that she has headaches on a daily basis. 14 The medical evidence of record, however, reveals unremarkable 15 findings. For example, the record indicates mild or no findings 16 related to headaches, such as issues with trigeminal neuralgia, 17 temporal arteritis, masses in the brain, subarachnoid hemorrhaging, 18 mass lesions, vascular malformation, subdural hematoma, or central 19 nervous system infection. Furthermore, no aggressive treatment was 20 recommended or anticipated for this condition. Accordingly, the 21 claimant’s medically determinable impairment of headaches is 22 nonsevere. 23 AR 22. 3. Analysis of Claimed Errors. 24 25 26 27 28 a. Foot Drop. As evidence supporting the alleged severity of Plaintiff’s right foot drop, 5 The ALJ evidently meant right foot drop in this paragraph. 6 1 Plaintiff cites to the report of consultative examiner Dr. Sohail Afra. (JS at 5.) Dr. 2 Afra observed as follows: 3 The claimant was walking with antalgic gait with AFO [ankle foot 4 orthosis] brace intact. The claimant’s brace was taken off during the 5 examination with the gate being more antalgic and on few occasions, 6 she had to touch the wall when she was walking. 7 *** 8 The claimant was asked to walk with and without the AFO [ankle foot 9 orthosis] brace on the right. Her gait was more antalgic. The foot drop 10 was more obvious when she was walking without her brace. 11 AR 355, 357. Dr. Afra also noted “decreased muscle bulk and atrophy on the right 12 lower extremity when compared to the left.” AR 357. Dr. Afra concluded that 13 Plaintiff’s AFO brace “on the right is medically indicated for all ambulation,” but 14 using the brace, Plaintiff could walk or stand for two hours out of an eight-hour 15 workday, consistent with the demands of sedentary work. AR 358. 16 The ALJ accounted for Dr. Afra’s opinions in the assessed RFC by limiting 17 Plaintiff to a combination of standing/walking for only two hours in an eight-hour 18 workday. AR 25. Plaintiff argues, “Because the foot drop, according to [Dr. Afra], 19 limits [Plaintiff’s] standing and walking to only two hours, it is by definition severe 20 contrary to the ALJ’s unsupported finding that it was not severe.” (JS at 10-11.) 21 Plaintiff fails to explain, however, how this alleged error was prejudicial. Plaintiff 22 fails to discuss any medical evidence that Plaintiff’s foot drop limits her walking 23 more seriously than Dr. Afra opined, and the ALJ fully credited Dr. Afra’s opinion 24 concerning Plaintiff’s walking limitations.6 25 26 27 28 Dr. Luthra opined that Plaintiff could walk or stand for only one hour during an eight-hour workday, but he did not mention foot drop as a diagnosis and he qualified his opinion as Plaintiff’s observation. AR 505. As discussed below, the ALJ stated legally sufficient reasons for giving his opinions “little weight.” AR 6 7 1 Furthermore, Plaintiff stated that she had right foot drop since 1992. AR 255 2 (“When asked about lower extremity symptoms, she stated that since the surgery in 3 1992 on her back, she has been experiencing right foot drop.”), AR 43 (“I had a 4 herniated disc repair … and that surgery failed, so I have a foot drop.”). Indeed, in 5 2008, a treating doctor noted that she had right-side foot drop but still described her 6 gait as “normal.” AR 258. In 2010, Dr. Limonadi observed, “She ambulates with 7 excellent gait and balance.” AR 513. In 2015, she told Dr. Herr that she had “years 8 of foot drop” and that condition was “unchanged.” AR 425. Plaintiff continued to 9 work until January 2013. AR 41, 199. Plaintiff’s ability to work for more than two 10 decades even with right foot drop further evidences that this condition was not 11 disabling. 12 b. Headaches. 13 Plaintiff cites to numerous medical records reflecting that she has complained 14 of headaches for years. (JS at 4); see AR 374 (7/7/14: “Headaches … twice per 15 week she has to take Imitrex 100 mg/d”), AR 389 (2/7/13: “She has headache 2- 16 3x/week. She has more headache with excessive work.”), AR 395 (same on 17 7/23/12), AR 398 (same on 6/1/12), AR 401 (3/16/12: “She has intractable 18 headache, which has a characteristic of migraine …. She has Tension Headaches – 19 stress induced. Occupational stress.”), AR 376 (same on 7/7/14). Some of these 20 records dated from 2012 when Plaintiff was still working. Indeed, Dr. Luthra 21 attributes her headaches, in part, to job-related stress. These record do not show 22 that Plaintiff’s headaches more than minimally limited her ability to work. 23 Plaintiff also completed a headache questionnaire. AR 198 (dated February 24 20, 2014, according to AR Index). She claimed to experience “daily” headaches 25 lasting “from 2 hrs to 6 hrs.” Id. She claimed that these headaches affected her 26 ability to do routine activities “almost daily.” Id. To relieve her pain, she used the 27 28 28. 8 1 Duragesic/fentanyl patch daily plus Imitrex/sumatriptan and Altracet/tramadol, and 2 she would “lay down in [a] closed dark area using warm neck roll.” Id. 3 While Plaintiff asserts that the ALJ “ignored” this questionnaire (JS at 4), the 4 ALJ specifically referenced it and discounted it as reflecting Plaintiff’s subjective 5 complaints and appearing exaggerated when compared to other evidence of record. 6 AR 22; see also AR 26 [“The undersigned considered all of [Plaintiff’s] subjective 7 complaints, including … questionnaires.”]). As discussed below, the ALJ gave 8 clear and convincing reasons for discounting Plaintiff’s subjective symptom 9 testimony. Indeed, Plaintiff reported to Dr. Luthra that she experienced headaches 10 only 2 or 3 times/week, not daily. Compare AR 198 and AR 374, 389, 395, 398. In 11 her February 2014 Function Report, Plaintiff did not claim that any of her 12 impairments affected her ability to concentrate or complete tasks. AR 195. 13 As evidence that Plaintiff’s headaches are a severe impairment, Plaintiff cites 14 Dr. Luthra who “indicated migraines as a diagnosis [and] indicated, at least in part, 15 that [Plaintiff] would be absent for three or more days a month based upon this 16 impairment.” (JS at 5, citing AR 505-06.) Dr. Luthra listed Plaintiff’s diagnoses as 17 “syringomyelia, depression, migraine, ulcer.” AR 505. He opined that Plaintiff 18 would “likely be absent from work due to the impairment(s) and/or treatment(s)” 19 three or more days per month, but he did not discuss which conditions/treatment 20 would cause her absenteeism and qualified this opinion as Plaintiff’s observation. 21 AR 506. His opinion does not provide substantial evidence to support a finding 22 that Plaintiff migraines were a severe impairment. Moreover, as discussed below, 23 the ALJ gave legally sufficient reasons for discounting his extreme and 24 contradictory opinions.7 25 26 27 28 For example, Dr. Luthra opined that Plaintiff would need to lie down in bed for 1½ hours every 2 hours (AR 506), but at the same time he opined that she would need 10-minute walking breaks every 20 minutes, although she could only walk or stand for 1 hour/day. AR 505-06. He opined that Plaintiff could never reach in any direction, but Plaintiff reported that she could do tasks that require 7 9 1 2 3 ISSUE TWO: The Evaluation of Plaintiff’s Subjective Symptom Testimony. 1. Rules for Evaluating Subjective Symptom Testimony. An ALJ’s assessment of pain level is entitled to “great weight.” Weetman v. 4 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989) (citation omitted); see also Nyman v. 5 Heckler, 779 F.2d 528, 531 (9th Cir. 1986). “[T]he ALJ is not ‘required to believe 6 every allegation of disabling pain, or else disability benefits would be available for 7 the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).’” Molina v. 8 Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (citation omitted). 9 If the ALJ finds that a claimant’s testimony as to the severity of his pain and 10 impairments is unreliable, “the ALJ must make a credibility determination with 11 findings sufficiently specific to permit the court to conclude that the ALJ did not 12 arbitrarily discredit claimant’s testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 13 (9th Cir. 2002). If the ALJ’s credibility finding is supported by substantial 14 evidence in the record, courts may not engage in second-guessing. Id. 15 In evaluating a claimant’s subjective symptom testimony, the ALJ engages in 16 a two-step analysis. Lingenfelter, 504 F.3d at 1035-36. “First, the ALJ must 17 determine whether the claimant has presented objective medical evidence of an 18 underlying impairment [that] could reasonably be expected to produce the pain or 19 other symptoms alleged.” Id. at 1036. If so, the ALJ may not reject a claimant’s 20 testimony “simply because there is no showing that the impairment can reasonably 21 produce the degree of symptom alleged.” Smolen v. Chater, 80 F.3d 1273, 1282 22 (9th Cir. 1996). 23 Second, if the claimant meets the first test, the ALJ may discredit the 24 claimant’s subjective symptom testimony only if he makes specific findings that 25 26 27 28 some reaching such as cleaning the bathroom, dusting, washing the laundry, and preparing sandwiches. Compare AR 506 and AR 192. He opined Plaintiff could never lift 10 pounds (AR 505), but Plaintiff said that she “can only lift 10 pounds” (AR 195). 10 1 support the conclusion. Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). 2 Absent a finding or affirmative evidence of malingering, the ALJ must provide 3 “clear and convincing” reasons for rejecting the claimant’s testimony. Lester, 81 4 F.3d at 834; Ghanim v. Colvin, 763 F.3d 1154, 1163 & n.9 (9th Cir. 2014). 5 2. The ALJ’s Reasons for Discounting Plaintiff’s Testimony. 6 Plaintiff testified that she spends “80 plus percent of the time” lying down in 7 bed. AR 44. She testified that standing for “no more than five, ten minutes” was 8 the most she could do. AR 48; compare AR 195 (“can only stand 2 hrs”). She 9 estimated that she could sit in a chair for 20-30 minutes. AR 49; compare AR 195 10 (“sitting one hr”). She testified that the most weight she could lift was five pounds. 11 AR 49; compare AR 195 (“can only lift 10 pounds”). Even with strong pain 12 medication, she rated her daily pain as 8 on a scale of 1 to 10. AR 43. She reported 13 being “unable to use [her] hands to type or hold due to loss of feeling & strength.” 14 AR 195; compare AR 45 (“I can type maybe – well, I haven’t tried to type, but … 15 to use my phone if I do … a few keys I’m okay ….”). She testified that she had 16 difficulty lifting her arms “to type or to … keep them up for more than a couple of 17 minutes because then it gets really numb.” AR 45. Plaintiff reported that before 18 her condition, she was able to prepare “complete meals with served courses” but 19 became unable “to cook in the stove because of the heat; afraid to burn myself due 20 to loss of sensation.” AR 192; compare AR 255 (Plaintiff told neurologist in 2008 21 she has “a difficult time discriminating between hot and cold and she is afraid of 22 burning her hands during cooking”). She goes on walks with her disabled husband 23 for 20-30 minutes. AR 40, 190, 195. Her husband and adult children take care of 24 their dog, and she sometimes accompanies her husband to the grocery store. AR 25 191, 193. 26 The ALJ gave at least six reasons for discounting Plaintiff’s testimony 27 “concerning the intensity, persistence and limiting effects” of her symptoms: 28 (1) inconsistency with her daily activities, (2) inconsistency with medical evidence, 11 1 (3) lack of atrophy, (4) Plaintiff’s use of a C-collar neck brace and cane at the 2 hearing when such assistive devices are not medically necessary, (5) Plaintiff’s 3 reason for leaving her prior employment, and (6) lack of supporting objective 4 evidence. AR 26-27. Because the lack of supporting objective evidence is not a 5 sufficient reason, standing alone, to discount a claimant’s subjective symptom 6 testimony, the Court will consider the ALJ’s other stated reasons. 7 8 9 a. Reason One: Inconsistency with Daily Activities. ALJs may consider contradictions between a claimant’s reported limitations and a claimant’s daily activities when assessing subjective symptom testimony. 10 Morgan v. Apfel, 169 F.3d 595, 599-600 (9th Cir. 1999) (claimant’s “ability to fix 11 meals, do laundry, work in the yard, and occasionally care for his friend’s child” 12 were inconsistent with disabling mental impairment); Tidwell v. Apfel, 161 F.3d 13 599, 602 (9th Cir. 1998) (daily activities inconsistent with total disability 14 undermined subjective testimony of disabling pain); Orteza v. Shalala, 50 F.3d 748, 15 750 (9th Cir. 1995) (claimant’s ability to perform “various household chores such 16 as cooking, doing the dishes, going to the store, visiting relatives, and driving” 17 inconsistent with claimed inability to do light work). 18 The mere fact that a claimant can carry on some daily activities, however, 19 does not defeat a claim of disability. Verigan v. Halter, 260 F.3d 1044, 1050 (9th 20 Cir. 2001) (claimant’s ability to “go grocery shopping with assistance, walk 21 approximately an hour in the malls, get together with her friends, play cards, swim, 22 watch television, and read” was not inconsistent with pain testimony where “these 23 physical activities did not consume a substantial part of [her] day”). Thus, the 24 relevant issue becomes whether the claimant’s activities (1) contradict his/her 25 testimony, or (2) “meet the threshold for transferable works skills.” Orn v. Astrue, 26 495 F.3d 625, 639 (2007); Derr v. Colvin, 2014 WL 5080437, at *12 (D. Ariz. Oct. 27 9, 2014) (“Only when a level of activity is inconsistent with a claimant’s claims of 28 limitations should those activities have any bearing on the claimant’s credibility.”). 12 1 2 Here, the ALJ found the following inconsistencies between Plaintiff’s claimed limitations and her daily activities: 3 The medical records reveal that the claimant was able to prepare 4 simple meals, clean, do the laundry, dust, ride in a car, shop in stores, 5 pay bills, read, watch television, go to church, and spend time with 6 others [AR 192-94]. Moreover, at the hearing, the claimant admitted 7 that she has a valid driver’s license [AR 39-40]. Some of the physical 8 and mental abilities and social interactions required in order to 9 perform these activities are the same as those necessary for obtaining 10 and maintaining employment. The claimant’s ability to participate in 11 such activities is inconsistent with the claimant’s statements 12 concerning the alleged intensity, persistence, and limiting effects of 13 symptoms. 14 *** 15 [T]he claimant indicated that she had difficulty lifting, carrying, 16 standing, walking, sitting, balancing, and raising her hands or arms. 17 [AR 195.] However, this is inconsistent with her acknowledgment 18 that she prepared simple meals, cleaned, did the laundry, dusted, rode 19 in a car, shopped in stores, paid bills, read, watched television, went to 20 church, and spent time with others [AR 192-94]. 21 AR 26. 22 Plaintiff argues that having a valid driver’s license does not mean she is 23 physically capable of driving; she testified that she does not drive because when she 24 “turn[s] to the right, [she] get[s] dizzy.” (JS at 11, citing AR 40.) In her Function 25 Report, she stated, “Not able to drive due to my neck be[ing] stiff.” AR 193. When 26 asked to explain further why she does not drive, she said, “Because of neck 27 stiffness & not able to turn to the sides; dizziness, gait unsteady, balance (loosing) 28 [sic].” Id. In April 2014, however, psychological consultative examiner Dr. Cross 13 1 observed that Plaintiff arrived for her appointment “by an automobile driven by 2 herself.” AR 342. Thus, substantial evidence supports the ALJ’s finding that 3 Plaintiff could drive during the period of claimed disability. 4 Plaintiff argues that as to her other activities, the ALJ merely “referenced” 5 them and failed to show any inconsistency between them and her testimony. (JS at 6 13, 23.) However, Plaintiff’s claimed physical limitations are extreme. She 7 testified that standing for “no more than five, ten minutes” was the most she could 8 do. AR 48. She was “unable to use [her] hands to type or hold ….” AR 195. She 9 could not lift her arms even as high as a typing position for “more than a couple of 10 minutes.” AR 45. Limitations this severe are inconsistent with the physical 11 demands of cleaning a bathroom for 20-30 minutes (AR 192), which would require 12 standing for more than five or ten minutes and reaching for more than a couple of 13 minutes. Shopping for 30-45 minutes (AR 193) would require more 14 walking/standing than Plaintiff claimed that she could do, even if she holds onto the 15 cart. Dusting, doing laundry for 20 minutes, and preparing sandwiches (AR 192) 16 would require using her hands to hold objects and some reaching. Going to church 17 (AR 194) would require being able to walk more than 100 feet and/or sit for more 18 than 20-30 minutes (AR 49). Thus, substantial evidence supports the ALJ’s finding 19 of inconsistency. 20 As to mental impairments, many of the activities listed by the ALJ require 21 cognitive and social skills similar to work activities, and are therefore inconsistent 22 with the mental disabilities asserted by Dr. Luthra and Plaintiff’s counsel. See AR 23 507-09; JS at 36-37. Furthermore, Plaintiff has never testified that she has mental 24 impairments. Plaintiff did not allege any mental impairments in her DIB 25 application. AR 59. In her Function Report, she did not claim that her condition 26 affects any of her mental abilities. AR 195. She acknowledged that she can handle 27 her own finances (AR 193), read books (AR 194), shop online (AR 193), socialize 28 with friends on the phone (AR 194), follow instructions well (AR 195), and handle 14 1 stress and changes “very good” (AR 196). She denied receiving treatment for 2 “mental health, depression, anxiety, or anything.” AR 50; compare AR 329 3 (8/28/13: “She continues to have therapy thru Dr. Garrett, psychologist, who 4 presently agrees with her not using anti-depressants particularly in the setting of the 5 use of fentanyl patch.”) Thus, while her activities are inconsistent with her new 6 claim of mental disability, they are not inconsistent with her testimony, because she 7 did not testify to any mental disability. 8 b. Reason Two: Inconsistency with Medical Evidence. 9 As two examples of inconsistencies between Plaintiff’s claimed functional 10 limitations and the medical evidence, the ALJ cited “medical evidence of record 11 indicated that the claimant’s range of motion of the neck was only mildly limited, 12 and her musculoskeletal examination was normal.” AR 26, citing AR 271 and AR 13 485. 14 AR 271 is page 3 of a 10-page record from an emergency room (“ER”) visit 15 for chest pain on January 24, 2013, Plaintiff’s alleged onset date. Shortly after 16 arriving at the ER, she advised staff of her history of “chronic back pain, chronic 17 neck pain.” AR 269. Staff examined her and noted “denies … upper or lower 18 extremity weakness” and “denies headaches” and “fully ambulatory no limitations.” 19 AR 269. Staff described her neck as “supple.” AR 270. Under the headings 20 “Physical Exam / Musculoskeletal,” staff noted “Full range of motion in all 21 extremities.” AR 271. Plaintiff was discharged later that afternoon after receiving 22 a negative chest x-ray and reporting that she felt better. AR 271, 276. 23 Plaintiff argues that AR 271 was part of a “limited ER examination” focused 24 on chest pain and is unreliable because it reports a “full range of motion” despite 25 Plaintiff’s documented neck and back impairments. (JS at 15.) The ER staff, 26 however, observed and described Plaintiff as “fully ambulatory” with a “supple” 27 neck. This is inconsistent with Plaintiff’s claim that she needs a cane to ambulate 28 (AR 47, 196 [needs cane “daily to ambulate”]) and suffers from a stiff neck that she 15 1 cannot turn (AR 193). Moreover, when Plaintiff visited the ER in May 2014 2 complaining of diverticulitis, the staff again observed that she had “full range of 3 motions in all extremities.” AR 444. 4 AR 485 is from a 3-page set of notes by Dr. Craig Rosenblum from an office 5 visit on June 23, 2016. AR 484-86. In the first paragraph, he recorded Plaintiff’s 6 subjective complaints. AR 484. He asked her to rate her “average” and “worst” 7 pain for various parts of her spine. AR 484-85. He noted that she was wearing a 8 “soft cervical collar.” AR 485. He then did a cervical exam evaluating the strength 9 and tenderness of various muscles and the range of motion of her neck and 10 shoulders. AR 484. Regarding Plaintiff’s neck, he observed as follows: 11 Neck: flexion is mildly limited with pain, extension is mildly limited 12 with no pain, rotation to the right is mildly limited with pain, rotation 13 to the left is mildly limited with no pain, lateral bending to the right is 14 moderately limited with pain, lateral bending to the left is moderately 15 limited with pain. 16 AR 485; see also AR 503 (same findings 7/27/15). In other words, Dr. Rosenblum 17 observed that Plaintiff was only mildly limited turning her head to the right or left. 18 In contrast, in her Function Report (undated), Plaintiff stated that she 19 suffered from a “stiff” neck and was not able to drive because she was “not able to 20 turn to the sides.” AR 193. Thus, the ALJ did not err in finding that Plaintiff’s 21 testimony was inconsistent with AR 271 and AR 485. 22 c. Reason Three: Lack of Atrophy. 23 Regarding atrophy, the ALJ found as follows: 24 Muscle atrophy is a common side effect of prolonged and or 25 chronic pain due to lack of use of a muscle in order to avoid pain. 26 There is no evidence of atrophy in the claimant’s evidence as a whole. 27 It can be inferred that, although the claimant experienced some degree 28 of pain in her back and neck, the pain has not altered her use of those 16 1 2 3 muscles to an extent that has resulted in atrophy. AR 26. Plaintiff first argues that this is not a valid consideration, citing Miller v. 4 Sullivan, 953 F.2d 417 (8th Cir. 1992). (JS at 24.) In Miller, the Eighth Circuit 5 observed that “although muscle deterioration may result from disuse, disabling pain 6 does not always result in muscle disuse. Therefore, the ALJ cannot discount 7 Miller’s claim simply because she does not show an effect that other people 8 suffering from disabling pain may show.” Id. at 422-23. Miller is factually 9 distinguishable, because here, Plaintiff testified to muscle disuse. She testified that 10 she spends “80 plus percent of the time” lying down in bed (AR 44) and she does 11 not use her hands to hold things (AR 195) or raise her arms as high as typing 12 position for more than a few minutes (AR 45). She uses pillows to hold up her 13 books (AR 194) and a foam collar to hold up her neck upright when she is not in 14 bed (AR 47, 196). 15 Moreover, the Ninth Circuit permits ALJs to consider whether the lack of 16 atrophy is consistent with a claimant’s subjective symptom testimony. See 17 Osenbrock v. Apfel, 240 F.3d 1157, 1165-66 (9th Cir. 2001) (upholding an ALJ’s 18 rejection of a claimant’s credibility where the ALJ made specific findings 19 including, but not limited to, a lack of atrophy); Meanel v. Apfel, 172 F.3d 1111, 20 1114 (9th Cir. 1999) (upholding adverse credibility determination where claimant’s 21 testimony that pain “required her to lie in a fetal position all day” was inconsistent 22 with not “exhibit[ing] muscular atrophy”).8 23 24 25 26 27 28 The Court also notes unpublished contrary opinions. See Lapeirre-Gutt v. Astrue, 382 F. App’x 662, 665 (9th Cir. 2010) (rejecting lack of evidence of atrophy as a reason for adverse credibility determination as not based on substantial evidence, where no medical evidence “suggests that high inactivity levels necessarily leads to muscle atrophy”); Valenzuela v. Astrue, 247 F. App’x 927, 929 (9th Cir. 2007) (ALJ’s adverse credibility determination was not supported by substantial evidence where the record was devoid of any medical testimony to support ALJ’s finding that absence of evidence of muscular atrophy indicated 8 17 1 Plaintiff next argues that the ALJ’s finding of “no evidence of atrophy” is 2 inaccurate, because Dr. Afra reported, “The claimant was noted to have decreased 3 muscle bulk and atrophy on the right lower extremity compared to the left.” AR 4 357. Regarding motor strength in other body parts, Dr. Afra found strength of 5/5 5 for her left leg, 4 or 4+/5 for both arms, reduced strength in her right foot, and 6 “mildly” decreased grip strength on the right compared to the left. AR 354, 357. 7 Other medical sources also offered observations concerning Plaintiff’s 8 muscle strength. In a series of examinations between February and May 2014, Dr. 9 Rosenblum tested all left-side arm and shoulder muscles tested at 5/5, and on the 10 right side, her deltoid and bicep were 5/5, but her rhomboid and trapezius were 11 4+/5. AR 363, 366, 369. Her leg muscles were rated 5/5. AR 364, 366, 369-70. 12 Dr. Rosenblum made similar findings in 2015 and 2016. AR 485, 488-89, 491-92, 13 496-97, 500-01, 503-04. Due to the lack of change over the course of three years, it 14 is unclear if he truly made new findings during each examination. 15 In March 2014, Dr. Luthra found Plaintiff’s hamstring strength 5/5, but rated 16 her upper extremity muscles 4/4. AR 379. In December 2012, Dr. Luthra found 17 most of her muscles rated 5 (defined as “normal”) and noted “atrophy of muscles: 18 none.” AR 393-94. He recommended, “She needs break from work.” AR 394. 19 Plaintiff’s muscle strength was not as reduced as one would expect if she 20 spent 80% of her time in bed. Furthermore, the ALJ’s paragraph on atrophy 21 suggested that he was discussing lack of atrophy in Plaintiff’s neck and back area; 22 Plaintiff presents evidence only of right leg atrophy. Thus, this was a clear and 23 convincing reason for discounting Plaintiff’s testimony. Even if it were not, 24 25 26 27 28 claimant’s symptoms were not as severe as alleged); but see Gates v. Colvin, 621 F. App’x 457, 457-58 (9th Cir. 2015) (ALJ properly determined that claimant’s “lack of muscle atrophy was incompatible with her claimed level of inactivity, and thus her ‘subjective complaints and alleged limitations are out of proportion to the objective findings’”). 18 1 however, any error would be harmless, because the ALJ gave other sufficient 2 reasons. 3 4 a. Reason Four: Use of Assistive Devices. At the hearing, the ALJ questioned Plaintiff about her use of a cane. She 5 testified that both Dr. Luthra and her PCP [primary care physician9] told her to use 6 it. AR 47. In his September 8, 2016 questionnaire, Dr. Luthra stated that Plaintiff 7 was “medically required” to use a cane for ambulation, although he qualified this as 8 Plaintiff’s observation. AR 505. 9 The ALJ also asked Plaintiff why she was wearing a C-collar neck brace. 10 AR 46. Plaintiff explained that when she told Dr. Luthra that she “wasn’t able to 11 stay up more than … an hour or two, upright,” he prescribed it for her in 2013 or 12 2014. AR 47. In her Function Report, however, she stated that she had been 13 prescribed the neck brace back in 2008 and she wore it “at least 4 hrs during day if 14 … ambulatory or sitting.” AR 196. In 2016, Dr. Luthra did not opine that Plaintiff 15 needed a neck brace to support her head while sitting or walking. AR 505. 16 None of the records from Plaintiff’s ER visits indicate that she was using a 17 cane or neck brace. In January 2013, the ER staff described Plaintiff as “fully 18 ambulatory no limitations.” AR 269. In May 2014, ER staff noted that Plaintiff had 19 “normal mobility status” and was “able to climb up into very tall SUV without any 20 difficulty.” AR 442, 451. Also in May 2014, Dr. Afra did not note that Plaintiff 21 used a cane to ambulate. AR 355. 22 Regarding her collar neck brace, Plaintiff argues there is support for its 23 medical necessity because Dr. Herr “indicates that it is used daily.” (JS at 16, citing 24 AR 425.) In that September 2015 record, Dr. Herr was merely reporting that 25 Plaintiff told him she “wears collar every day;” he was not expressing a medical 26 opinion. AR 425. In May 2014, Dr. Afra noted that she wore the neck brace to her 27 28 9 The JS does not identify Plaintiff’s PCP. (JS at 12.) 19 1 examination and that she claimed she wore it 6-7 hours a day. AR 353. He opined 2 that her foot orthotic was a necessary assistive device, but he did not provide such 3 an opinion for the neck brace. AR 358. 4 Plaintiff had multiple cervical MRIs that revealed some mildly abnormal 5 findings. See AR 513 (discussing 2007 and 2010 MRIs); AR 436-37 (2014 MRI: 6 “essentially stable MRI cervical spine compared to the study of 7/3/12 … stable 7 very mild cervical spondylosis and degenerative disc changes …”); AR 435 (2015 8 MRI: “Stable minimal changes of degenerative disc and facet disease with no spinal 9 stenosis or neural foraminal narrowing. No acute abnormality identified.”). 10 Neither party cites a medical source opinion that Plaintiff’s spinal condition 11 requires her to wear a neck brace to support her head while sitting or walking. To 12 the contrary, in 2015, Dr. Rosenblum observed Plaintiff was only “mildly limited” 13 flexing, extending, and rotating her neck. AR 503. 14 In sum, Plaintiff’s testimony that she must use a cane to ambulate is 15 inconsistent with other medical evidence (AR 269, 355, 442, 451). Plaintiff’s 16 testimony that she needs to use a neck brace while upright is not supported by any 17 medical evidence. The ALJ did not err in considering this when deciding what 18 weight to give Plaintiff’s testimony. 19 20 a. Reason Five: Reason for Leaving Prior Employment. Plaintiff testified that she last worked in 2013. AR 41. Her last employer put 21 her on medical leave, but she “tried to go back when [she] was released to go back 22 to work.” AR 42. She was unable to go back because her “position was filled.” Id. 23 She testified that when she tried to go back to work, she would have been able to do 24 her job physically, but then she “got worse about a month and a half later.” Id. 25 26 27 28 During this same time, Plaintiff was seeing Dr. Herr and discussed with him her decision to stop working, as follows: • December 2012: Plaintiff told Dr. Herr, “’I have a new boss’ lot of pressure.” AR 332. 20 1 • January 2013: Plaintiff claimed that she “became unable to work because of 2 [her] disabling condition on January 24, 2013,” and in 2014, she affirmed the truth 3 of this claim. AR 163-64. 4 • February 2013: Dr. Herr reported, “Our discussion centers around her work 5 where she describes a situation that would require her to falsely take [paid] hours 6 away from employees.” AR 331. Her treatment plan included, “investigate options 7 regarding her work” and “obtain counsel[l]ing for … future employment options.” 8 Id. 9 • April 2013: Dr. Herr reported, “Problem is the concept of not telling the truth 10 at work which is the crux of her dilem[m]a continues to be so unsav[o]ry to her that 11 she has fallen into a depressive state.” AR 330. She told him she was “not able to 12 return to work [with] same job she believes was forcing her to lie.” Id. 13 • August 2013: Dr. Herr reported, “Pt. continues to be very affected by her work 14 environment stating that her boss is still there & the thought of having to go back & 15 work under her in that situation is literally unbearable.” AR 329. 16 • February 2014: Dr. Herr recorded Plaintiff’s work history, noting that she 17 “resigned from work on July 23[, 2013].” AR 327. Plaintiff’s condition became 18 “worse since Aug 28, 2013,” and she saw Dr. Luthra on December 17, 2013. Id. 19 She told Dr. Herr that she was “unable to be up only 2 hrs due to neck pain.” Id. 20 She “understands [Dr. Luthra] will place her on permanent disability.” AR 328. 21 Thus, substantial evidence supports the ALJ’s finding that – contrary to her DIB 22 application – Plaintiff did not stop working on her alleged onset date or fail to 23 return to work after that date because of a disabling condition, but because of 24 conflict with her boss and dissatisfaction with her prior job. 25 While Plaintiff argues that the reason she stopped working is irrelevant (JS at 26 16), the Ninth Circuit has repeatedly found that stopping work for reasons other 27 than medical impairments and other than as claimed in a benefits application is a 28 valid factor in the ALJ’s evaluation of Plaintiff’s testimony. See, e.g., Bruton v. 21 1 Massanari, 268 F.3d 824, 828 (9th Cir. 2001) (“[T]he ALJ satisfied the 2 [appropriate] standard by providing specific, cogent reasons for disregarding 3 [claimant’s] testimony,” “[f]or example, the ALJ stated that she found [claimant’s] 4 subjective pain complaints not credible because, inter alia: (1) [claimant] stated at 5 the administrative hearing and to at least one of his doctors that he left his job 6 because he was laid off, rather than because he was injured.”); see also 20 C.F.R. 7 §§ 404.1529(c)(3), 416.929(c)(3) (“We will consider all of the evidence presented, 8 including information about your prior work record . . .”). 9 10 11 ISSUES THREE AND FOUR: Dr. Luthra. 1. Rules for Weighing Conflicting Medical Evidence. “As a general rule, more weight should be given to the opinion of a treating 12 source than to the opinion of doctors who do not treat the claimant.” Turner v. 13 Comm’r of SSA, 613 F.3d 1217, 1222 (9th Cir. 2010) (citation omitted). This rule, 14 however, is not absolute. “Where . . . a nontreating source’s opinion contradicts 15 that of the treating physician but is not based on independent clinical findings, or 16 rests on clinical findings also considered by the treating physician, the opinion of 17 the treating physician may be rejected only if the ALJ gives specific, legitimate 18 reasons for doing so that are based on substantial evidence in the record.” Andrews 19 v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (emphasis added and citation 20 omitted); see also Orn, 495 F.3d at 632 (“If the ALJ wishes to disregard the opinion 21 of the treating physician, he or she must make findings setting forth specific, 22 legitimate reasons for doing so that are based on substantial evidence in the 23 record.”) (citation omitted). 24 Here, the opinion of Dr. Luthra was contradicted by the opinions of State 25 agency psychological consultants and a consultative examiner with respect to 26 Plaintiff’s alleged mental impairments, and was contradicted by State agency 27 medical consultants and a consultative examiner with respect to Plaintiff’s ability to 28 perform light work. See AR 24, 28, 66-67, 69-72, 83-89, 346-47, 358-59. Thus, 22 1 under Andrews and Orn, the dispositive question is whether the ALJ gave “specific, 2 legitimate reasons” for discounting Dr. Luthra’s opinions. 3 4 2. Summary of Dr. Luthra’s Opinions. Plaintiff argues that the ALJ erred in failing to credit two medical source 5 statements from Dr. Luthra: (1) the “Ability to Do Work-Related Activities 6 (Physical)” form (“Physical Form” at AR 505-06) and (2) the “Ability to Do Work- 7 Related Activities (Mental)” form (“Mental Form” at AR 507-09). 8 In the Physical Form, Dr. Luthra opined that Plaintiff could only stand/walk 9 for one hour and sit for “0-2 hours” in an eight-hour workday. AR 505. She could 10 “never” lift 10 pounds, “never” use her arms for pushing or pulling, “never” reach 11 in any direction, and “never” finger. AR 505-06. He opined that every two hours, 12 she would need to lie down for an hour and a half. AR 506. He opined that her 13 speaking was impaired. Id. He opined that her pain medications caused drowsiness 14 and dizziness. Id. Nearly all his opinions are qualified by a note in the margin that 15 says “Pt’s observat.” AR 505-06. Based on comparison to a more clearly written 16 note by Dr. Luthra that says “Pt’s observation” (AR 507), these notes say “Pt’s 17 observations,” but they were cut off at the margin by the copying process. 18 In the Mental Form, Dr. Luthra found Plaintiff had moderate limitations 19 carrying out “short, simple instructions,” marked limitations understanding and 20 remembering detailed instructions, and extreme limitations with carrying out 21 detailed instructions and “mak[ing] judgments on simple work-related decisions.” 22 AR 507. These are all qualified as “Pt’s observations.” Id. He opined that she had 23 “marked” or “extreme” limitations in all areas of social functioning. Id. These 24 opinions are also qualified by the statement, “Above is Patient’s observat[ion].” 25 AR 508 (last three letters cut off by margin). 26 3. The ALJ’s Evaluation of Dr. Luthra’s Opinions. 27 The ALJ gave the Mental Form “little weight” for the following reasons: 28 [I]t is inconsistent with records reflecting that the claimant’s mood and 23 1 affect were normal [AR 271]. Furthermore, this opinion is inadequately 2 supported by the evidence as a whole, and is inconsistent with the 3 claimant’s testimony that she is not receiving any mental health 4 treatment. 5 6 AR 24. While inconsistency with AR 271 (i.e., one record from the alleged onset 7 date finding normal affect) might not provide a legitimate reason to discount Dr. 8 Luther’s opinions, the ALJ’s other two reasons are legally sufficient and supported 9 by substantial evidence. Dr. Luthra’s opinions in the Mental Form are not merely 10 “inadequately supported” by other evidence – they are wholly unsupported by other 11 evidence, because Dr. Luthra expressly stated that he was merely recording 12 Plaintiff’s own observations. AR 507-08. The Mental Form is also inconsistent 13 with Plaintiff’s own failure to claim any form of mental impairment. See AR 50, 14 59, 193-96. 15 The ALJ gave the Physical Form “little weight” for the following reasons: 16 [I]t is inconsistent with the claimant’s MRI examination of the cervical 17 spine, which revealed mild cervical spondylosis and degenerative disk 18 changes without significant central canal or neural foraminal stenosis, 19 and her MRI examination of the lumbar spine, which showed mild 20 findings [AR 433, 437]. Furthermore, this opinion is inconsistent with 21 records reflecting . . . the claimant’s [limitations on] range of motion of 22 the neck, which [were] mild [AR 485 (Dr. Rosenblum’s findings)]. 23 AR 28-29. In other words, the ALJ found the Physical Form’s extreme 24 limitations inconsistent with medical evidence showing that Plaintiff’s physical 25 impairments are not so extreme. This was a specific, legitimate reason for 26 discounting Dr. Luthra’s opinions – to the extent the Physical Form even reflects 27 Dr. Luthra’s opinions rather than Plaintiff’s own observations. See 20 C.F.R. §§ 28 404.1527(c)(2), 416.927(c)(2) (“The more a medical source presents relevant 24 1 evidence to support a medical opinion, particularly medical signs and laboratory 2 findings, the more weight we will give that medical opinion. The better an 3 explanation a source provides for a medical opinion, the more weight we will give 4 that medical opinion.”).10 5 ISSUE FIVE: Development of the Record. 1. Rules Governing Development of the Record. 6 7 The claimant bears the burden of producing evidence to support a finding of 8 disability. See 42 U.S.C. § 423(d)(5)(A) (“An individual shall not be considered to 9 be under a disability unless he furnishes such medical and other evidence of the 10 existence thereof as the Commissioner of Social Security may require.”). The Code 11 of Federal Regulations further explains: 12 [Y]ou have to prove to us that you are blind or disabled. You must 13 inform us about or submit all evidence known to you that relates to 14 whether or not you are blind or disabled. This duty is ongoing and 15 requires you to disclose any additional related evidence about which 16 you become aware. This duty applies at each level of the administrative 17 review process, including the Appeals Council level if the evidence 18 relates to the period on or before the date of the administrative law 19 judge hearing decision. We will consider only impairment(s) you say 20 you have or about which we receive evidence. 21 22 20 C.F.R. §§ 404.1512(a), 416.912(a). Nevertheless, the ALJ has a “special duty to fully and fairly develop the 23 record and to assure that the claimant’s interests are considered.” Brown v. 24 Heckler, 713 F.2d 441, 443 (9th Cir. 1983) (holding duty not met where ALJ 25 26 27 28 Plaintiff notes that Dr. Luthra was a specialist in neurology, and that the ALJ should have noted this and given Dr. Luthra’s opinion great weight. (See JS at 25.) Dr. Luthra’s specialty does not outweigh the other grave deficiencies in his opinion pointed out by the ALJ. 10 25 1 proceeded without a hearing). This duty, however, is “triggered only when there is 2 ambiguous evidence or when the record is inadequate to allow for proper evaluation 3 of the evidence.” Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001); see 4 also Agadzhanyan v. Astrue, 357 F. App’x 148, 150 (9th Cir. 2009) (“The ALJ’s 5 independent duty to develop the record was not triggered, because he did not find 6 any piece of evidence to be ambiguous or difficult to interpret.”). When triggered, 7 the ALJ “may discharge this duty in several ways, including: subpoenaing the 8 claimant’s physicians, submitting questions to the claimant’s physicians, continuing 9 the hearing, or keeping the record open after the hearing to allow supplementation 10 of the record.” Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). 2. Summary of Claimed Error. 11 12 At the hearing, when counsel sought to question the VE using Dr. Luthra’s 13 assessment as a hypothetical, the ALJ asked, “Which one? The physical or the 14 mental? Because I’m going to discredit the mental, and I may discredit the physical 15 as well, at least at this time.” AR 55. The ALJ stipulated that Dr. Luthra’s physical 16 assessment, if accepted, would preclude all work. AR 55-56. The ALJ noted that 17 while he had not yet decided to discredit the physical assessment, he intended to 18 look at the record again because he did not “think there’s objective records here that 19 are going to support what he’s saying from the neurological side.” AR 56. The 20 ALJ added, “And I don’t believe there’s anything in the file is going to justify a 21 cane, a brace, and/or the C-collar as well.” Id. The ALJ offered to “keep the record 22 open” for fifteen days to receive additional evidence from “Desert Spine and 23 Neurosurgical” and Dr. “Lalonde,” apparently a reference to Dr. Limonadi.11 Id. 24 The ALJ added, “after I get those, if I still don’t find support, I’m going to send her 25 26 27 28 At the time of the hearing, the medical evidence was comprised of exhibits 1-F through 15-F. AR 38. Records from the Desert Spine and Neurology Institute, including records from Dr. Limonadi, are exhibit 16-F. AR 510-23. 11 26 1 out for interrogatories with a doctor Social Security will pick as a neurologist as to 2 any neurological finding that support any of this.” AR 56-57. The ALJ concluded, 3 “So 15 days for [counsel] to respond with additional records, and then I’ll look at it 4 and send it out as soon as – it’s going to be at least two months to three months 5 before it will be concluded.” AR 57. 6 The ALJ, however, did not send Plaintiff’s file out for interrogatories. 7 Instead, on November 22, 2016 (i.e., about two months after the September 2016 8 hearing), he issued an adverse decision finding no medical support for either the 9 Physical Form or for Plaintiff’s use of a cane and neck brace. AR 30. 10 Plaintiff argues that the ALJ’s statements at the hearing were “essentially” 11 admitting that “the record was not sufficient to render an appropriate determination 12 concerning this claim,” which triggered a legal duty to develop the record. (JS at 13 40.) Defendant counters that keeping the record open fifteen days after advising 14 Plaintiff’s counsel of the perceived lack of support for Dr. Luthra’s opinions and 15 Plaintiff’s use of assistive devices was “all the ALJ was required to do.” (JS at 41, 16 citing Tidwell, 161 F.3d at 602 (rejecting claimant’s argument that the ALJ did not 17 develop the record before rejecting a doctor’s check-the-box opinion, because the 18 ALJ notified claimant and counsel at the hearing about his concerns and explained 19 that he would keep the record open so that the doctor could supplement his 20 responses – “It is important to note that at this point the ALJ satisfied his duty 21 under [Circuit law]” to develop the record); Hanbey v. Astrue, 506 F. App’x 615, 22 616 (9th Cir. 2013) (unpublished) (even if the ALJ’s duty to develop the record was 23 triggered, “the ALJ fulfilled that duty by according [claimant] the opportunity to 24 supplement the record after the hearing had concluded”) (citation omitted).) 25 Defendant points out that if counsel needed more time to obtain or submit 26 additional evidence, then counsel could have requested an extension but did not do 27 so. (JS at 42.) 28 When the ALJ re-reviewed the medical evidence after the hearing, it would 27 1 have been reasonable to conclude that no additional information was necessary to 2 evaluate Plaintiff’s claims, because (as discussed above) the opinions in Dr. 3 Luthra’s Physical Form were extreme and qualified as “Pt’s observations,” 4 Plaintiff’s use of a neck brace was inconsistent with mild cervical MRI findings and 5 no medical source had prescribed one, and multiple medical sources had observed 6 Plaintiff ambulate without a cane. The ALJ had no duty to develop the record 7 further. 8 9 10 11 ISSUE SIX: New Evidence. Plaintiff contends that remand is required to permit the ALJ to consider three new pieces of evidence. See Dkt.19-1, 19-2, and 19-3. 1. Rules Governing New Evidence Presented to the Appeals Council. 12 After the ALJ renders a decision denying benefits, the claimant may seek 13 review by the Appeals Council. 20 C.F.R. §§ 404.970, 416.1470. The Appeals 14 Council will review the case under circumstances enumerated in the regulations, 15 including where the ALJ’s action, findings, or conclusions are not supported by 16 substantial evidence. Id. §§ 404.970(a)(3), 416.1470(a)(3). If the Appeals Council 17 receives additional evidence that is new, material, and relates to the period on or 18 before the date of the hearing decision, and there is a reasonable probability that the 19 additional evidence would change the outcome of the decision, then the Appeals 20 Council will review a case. Id. §§ 404.970(a)(5), 416.1470(a)(5). 21 When the Appeals Council “declines review, ‘the ALJ’s decision becomes 22 the final decision of the Commissioner,’ and the district court reviews that decision 23 for substantial evidence, based on the record as a whole.” Brewes v. Comm’r of 24 Soc. Sec. Admin., 682 F.3d 1157, 1161-62 (9th Cir. 2012) (citation omitted). The 25 “record as a whole” includes any new evidence made part of the record by the 26 Appeals Council, and “the district court must consider [that new evidence] when 27 reviewing the Commissioner’s final decision for substantial evidence.” Id. at 1163. 28 Here, the Appeals Council declined to make the new evidence part of the 28 1 record. See AR 2. Thus, Plaintiff’s appeal falls under “sentence six” of 42 U.S.C. 2 § 405(g), which provides for district court review of the Social Security 3 Administration’s final decision.12 It provides, in relevant part: “The Court may ... 4 at any time order additional evidence to be taken before the Commissioner of Social 5 Security, but only upon a showing that there is new evidence which is material and 6 there is good cause for the failure to incorporate such evidence into the record in a 7 prior proceeding.” Thus, remand here is appropriate only if (1) the new evidence is 8 “material” and (2) there was “good cause” for the failure to incorporate such 9 evidence into the record in prior administrative proceedings. 10 “To demonstrate good cause, the claimant must demonstrate that the new 11 evidence was unavailable earlier.” Mayes, 276 F.3d at 463; see also Key v. 12 Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985) (“If new information surfaces after 13 the Secretary’s final decision and the claimant could not have obtained that 14 evidence at the time of the administrative proceeding, the good cause requirement is 15 satisfied.”). 16 To be material, the new evidence must bear “directly and substantially on the 17 matter in dispute.” Mayes, 276 F.3d at 462 (citation omitted). This means that the 18 new evidence is “probative of [the claimant’s] condition as it existed at the relevant 19 time—at or before the disability hearing.” Sanchez v. Secretary of Health and 20 Human Services, 812 F.2d 509, 511 (9th Cir. 1988). Materiality requires claimants 21 to “demonstrate that there is a reasonable possibility that the new evidence would 22 have changed the outcome of the administrative hearing.” Mayes, 276 F.3d at 463. 23 24 25 26 27 28 Plaintiff cites Brewes, 682 F.3d at 1161-63, to argue that sentence six does not apply. (See JS at 46.) Brewes is distinguishable; there, the Ninth Circuit found that the Appeals Council did consider the new evidence in reaching its decision. 12 29 1 2. Materiality. 2 a. Dr. Vachhani. 3 Plaintiff’s first new exhibit is a one-page form completed by Dr. Kishor 4 Vachhani on March 24, 2017, titled “Need for Assistive Hand-Held Device for 5 Ambulation.” (Dkt. 19-1). Plaintiff does not explain her relationship with Dr. 6 Vachhani or how he came to complete this form. The parties do not cite any other 7 treating records from Dr. Vachhani. 8 This form was completed on March 24, 2017, long after the ALJ’s decision 9 in November 2016. (Dkt. 19-1.) Nothing in the form indicates that Dr. Vachhani 10 was providing a retrospective opinion. Plaintiff argues that the form is nevertheless 11 “chronologically relevant” because Plaintiff’s ambulatory difficulties in 2017 arose 12 from chronic impairments. (JS at 47-48.) 13 Plaintiff has failed to demonstrate that Dr. Vachhani’s opinion relates to the 14 relevant period. Her degenerative disk disease – while chronic – is also 15 progressive. Progressive diseases generally cause increased functional limitations 16 over time. Plaintiff has claimed that her condition worsened significantly within 17 the space of one and a half months. AR 42. This, along with the fact that medical 18 sources observed her walk without a cane during the claimed period of disability 19 (AR 269, 353, 442, 451) and Dr. Luthra qualified his September 2016 opinion that 20 Plaintiff needs a cane to ambulate by noting that it was “Pt’s observation,” defeats 21 any inference that Dr. Vachhani’s opinion relates back to the period before the 22 ALJ’s decision. 23 b. Dr. Walayat 24 Plaintiff’s second new exhibit is progress notes from psychiatrist Dr. Warris 25 Walayat from February, March, and April 2017. (Dkt. 19-2.) Plaintiff argues that 26 this new evidence is material because it shows “mental health treatment” which 27 rebuts one of the ALJ’s findings. JS at 47; see AR 24 (citing “the claimant’s 28 testimony that she is not receiving any mental health treatment”). 30 1 The ALJ’s finding was based on Plaintiff’s clear testimony. AR 50. Plaintiff 2 has consistently denied that she suffers from any disabling mental impairment. See 3 AR 59, 193-96. The fact that she decided to seek mental health treatment after the 4 ALJ’s adverse decision citing lack of treatment has no tendency to show that she 5 suffered from a severe mental impairment before the decision. 6 c. New MRIs. 7 Plaintiff’s third new exhibit reflects MRIs of Plaintiff’s cervical and lumber 8 spine taken on December 19, 2016, and January 26, 2017, respectively. (Dkt. 19- 9 3.) Plaintiff argues that these new MRIs show “moderate to severe decreased disk 10 height” which “refutes a major contention by the ALJ” that Plaintiff’s MRIs 11 generally revealed only mild abnormalities. (JS at 47.) The ALJ was interpreting 12 earlier MRIs relevant to the period of claimed disability, including MRIs from 13 2007, 2010, 2012, 2014, and 2015. AR 435-36, 513. If the condition of Plaintiff’s 14 spine has worsened since November 22, 2016, then Plaintiff may file new 15 applications, but such evidence provides no reason to remand the instant case. 16 V. 17 CONCLUSION 18 For the reasons stated above, IT IS ORDERED that judgment shall be 19 entered AFFIRMING the decision of the Commissioner denying benefits. 20 21 22 23 24 DATED: August 22, 2018 ______________________________ KAREN E. SCOTT United States Magistrate Judge 25 26 27 28 31
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