Lakesha S. Harrison v. Nancy A. Berryhill, No. 5:2018cv00081 - Document 26 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION by Magistrate Judge Charles F. Eick. Plaintiff's motion for summary judgment is denied and Defendant's motion for summary judgment is granted. (sp)
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Lakesha S. Harrison v. Nancy A. Berryhill Doc. 26 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 LAKESHA S. HARRISON, ) ) Plaintiff, ) ) v. ) ) NANCY A. BERRYHILL, DEPUTY ) COMMISSIONER FOR OPERATIONS, ) SOCIAL SECURITY, ) ) Defendant. ) ___________________________________) NO. ED CV 18-81-E MEMORANDUM OPINION 17 18 PROCEEDINGS 19 20 Plaintiff filed a complaint on January 11, 2018, seeking review 21 of the Commissioner’s denial of disability benefits. The parties 22 filed a consent to proceed before a United States Magistrate Judge on 23 August 27, 2018. Plaintiff filed a motion for summary judgment on 24 August 27, 2018. Defendant filed a motion for summary judgment on 25 September 26, 2018. 26 summary judgment on October 10, 2018. 27 under submission without oral argument. 28 January 17, 2018. Plaintiff filed a reply to Defendant’s motion for The Court has taken the motions See L.R. 7-15; “Order,” filed Dockets.Justia.com 1 BACKGROUND 2 3 Plaintiff, a former cashier, asserts disability since January 31, 4 2010, based on a combination of alleged physical and mental 5 impairments (Administrative Record (“A.R.”) 24, 167-73, 188-89). 6 prior decision, an Administrative Law Judge (“ALJ”) found Plaintiff 7 had severe physical impairments (i.e., degenerative disc disease of 8 the cervical spine, Tietze’s syndrome,1 migraine headaches and asthma) 9 that restrict Plaintiff to a limited range of light work not requiring 10 more than occasional reaching above the shoulder bilaterally (A.R. 26- 11 27). 12 her past relevant work as a cashier “as generally performed” (A.R. 32 13 (adopting vocational expert testimony at A.R. 57-60)). 14 Council denied review (A.R. 1-3). In a In denying benefits, the ALJ found that Plaintiff could perform The Appeals 15 16 This Court then remanded Plaintiff’s claim for further 17 administrative proceedings. See A.R. 860-74 (Memorandum Opinion and 18 Order of Remand and Judgment in Harrison v. Colvin, ED CV 15-1362-E). 19 The Court found that substantial evidence did not support the ALJ’s 20 conclusion Plaintiff could perform her past relevant work. 21 observed that the Dictionary of Occupational Titles (“DOT”) provides 22 that the job of “cashier II” (DOT 211.462-010) requires “reaching” 23 “frequently,” which arguably conflicted with the ALJ’s limitation of The Court 24 1 25 26 27 28 Tietze’s syndrome, which is also called costochondritis, is a condition of unknown origin that is characterized by inflammation of the costochondral (rib) cartilage. See Definitions of “Tietze’s syndrome” and “costochondral,” available online at http://merriamwebster.com/medical/Tietze’s_syndrome and http://merriamwebster.com/medical/costochondral (last visited Oct. 17, 2018). 2 1 Plaintiff to no more than occasional overhead reaching. The Court 2 ruled that, before the ALJ could rely on the vocational expert’s 3 testimony in apparent conflict with the DOT, the ALJ was required to 4 resolve the apparent conflict. 5 Social Security Ruling 00-4p).2 6 issue raised except to determine that reversal with a directive for 7 the immediate payment of benefits would not have been appropriate 8 (A.R. 873, n.7). See A.R. 863-70 (citing, inter alia, The Court did not reach any other 9 10 The Appeals Council subsequently vacated the Commissioner’s final 11 decision and remanded the case to a new ALJ for proceedings consistent 12 with this Court’s prior order (A.R. 825). 13 authorized the ALJ to “offer [Plaintiff] the opportunity for a 14 hearing, take any further action needed to complete the administrative 15 record and issue a new decision” (A.R. 825). The Appeals Council 16 17 On remand, a new ALJ reviewed the record and heard testimony from 18 Plaintiff and a vocational expert (A.R. 780-90, 797-822).3 19 found Plaintiff suffers from severe cervical degenerative disc The ALJ 20 21 22 23 24 25 26 27 28 2 At the time of this ruling, the Court did not have the benefit of the Ninth Circuit’s decision in Gutierrez v. Colvin, 844 F.3d 804, 808 (9th Cir. 2016). In that decision, the Ninth Circuit ruled that there was no “apparent or obvious conflict” between the DOT and a vocational expert’s testimony that a claimant who could not reach overheard with her right arm nevertheless could perform work as a cashier. 3 At the outset of the hearing, the ALJ advised, without objection: “We’re going to start fresh. I’m not bound by any determinations that were made before. I’ll be making an independent decision in your case.” See A.R. 799; see also A.R. 983-85 (Plaintiff’s letter brief submitted to the new ALJ before the hearing acknowledging that review would be de novo). 3 1 disease, left shoulder impingement syndrome, migraine headaches and 2 asthma, which restrict Plaintiff to a limited range of light work with 3 no reaching limitations (A.R. 782, 785).4 4 vocational expert testimony to find Plaintiff capable of performing 5 her past relevant work as a cashier as generally performed (A.R. 790 6 (adopting vocational expert testimony at A.R. 816-17)). 7 stated that there now was no conflict with the DOT because “a 8 reassessment of the entire medical record supports the current 9 residual functional capacity” (A.R. 790). The ALJ relied on The ALJ 10 11 Plaintiff submitted “exceptions,” arguing to the Appeals Council, 12 inter alia, that the ALJ assertedly violated the mandate by revisiting 13 the issue of Plaintiff’s residual functional capacity (A.R. 957-60). 14 The Appeals Council considered the exceptions but denied review, 15 finding: (1) the prior decision had been vacated and the ALJ gave 16 adequate rationale for the new residual functional capacity 17 assessment; and (2) any error was harmless because the vocational 18 expert opined that a person limited to occasional overhead reaching 19 could still work as a cashier based on the expert’s experience, 20 asserting that the DOT does not address overhead reaching (A.R. 770- 21 75). 22 23 Plaintiff now contends that: (1) the ALJ erred by not following 24 the rule of mandate and/or law of the case; and (2) the ALJ otherwise 25 erred in evaluating the medical evidence and Plaintiff’s subjective 26 complaints. 27 4 28 The new ALJ found Plaintiff’s Tietze’s syndrome to be nonsevere (A.R. 783). 4 1 STANDARD OF REVIEW 2 3 Under 42 U.S.C. section 405(g), this Court reviews the 4 Administration’s decision to determine if: (1) the Administration’s 5 findings are supported by substantial evidence; and (2) the 6 Administration used correct legal standards. 7 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 8 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 9 682 F.3d 1157, 1161 (9th Cir. 2012). See Carmickle v. Substantial evidence is “such 10 relevant evidence as a reasonable mind might accept as adequate to 11 support a conclusion.” 12 (1971) (citation and quotations omitted); see also Widmark v. 13 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). Richardson v. Perales, 402 U.S. 389, 401 14 15 If the evidence can support either outcome, the court may 16 not substitute its judgment for that of the ALJ. 17 Commissioner’s decision cannot be affirmed simply by 18 isolating a specific quantum of supporting evidence. 19 Rather, a court must consider the record as a whole, 20 weighing both evidence that supports and evidence that 21 detracts from the [administrative] conclusion. But the 22 23 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 24 quotations omitted). 25 /// 26 /// 27 /// 28 /// 5 1 DISCUSSION 2 3 After consideration of the record as a whole, Defendant’s motion 4 is granted and Plaintiff’s motion is denied. The Administration’s 5 findings are supported by substantial evidence and are free from 6 material5 legal error. Plaintiff’s contrary arguments are unavailing. 7 8 I. 9 The ALJ Did Not Materially Violate the Doctrine of Law of the Case or the Rule of Mandate. 10 11 “[B]oth the law of the case doctrine and the rule of mandate 12 apply in the social security context.” Stacy v. Colvin, 825 F.3d 563, 13 567 (9th Cir. 2016) (“Stacy”). 14 prevents a court from considering an issue that has already been 15 decided by the same court, or by a higher court, in the same case. 16 Id. The law of the case doctrine sometimes 17 18 The legal effect of the doctrine of the law of the case 19 depends upon whether the earlier ruling was made by a trial 20 court [or in the Social Security context, an ALJ] or an 21 appellate court [or in the Social Security context, a 22 district court]. 23 to revision at any time before the entry of judgment. 24 trial court may not, however, reconsider a question decided All rulings of a trial court are subject A 25 26 5 27 28 The harmless error rule applies to the review of administrative decisions regarding disability. See Garcia v. Commissioner, 768 F.3d 925, 932-33 (9th Cir. 2014); McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011). 6 1 by an appellate court. 2 3 United States v. Houser, 804 F.2d 565, 567 (9th Cir. 1986) (emphasis 4 original; citation and internal quotation marks omitted). 5 6 Application of the doctrine is discretionary. See United States 7 v. Lummi Indian Tribe, 235 F.3d 443, 452 (9th Cir. 2000). The 8 doctrine, which “is concerned primarily with efficiency,” “should not 9 be applied when the evidence on remand is substantially different, 10 when the controlling law has changed, or when applying the doctrine 11 would be unjust.” Stacy, 825 F.3d at 567 (citation omitted). 12 13 In Stacy, the Ninth Circuit observed that there had been two 14 prior findings by ALJs that the claimant could not perform his past 15 relevant work. 16 typically the type of determination that should not be reconsidered 17 under the law of the case doctrine.” 18 however, that the ALJ properly had considered new evidence on remand. 19 Id. 20 had not abused its discretion in declining to apply the doctrine of 21 law of the case. Id. In dicta, the Ninth Circuit stated, “this is Id. The Ninth Circuit observed, For this reason, the Ninth Circuit held that the district court Id. 22 23 Similarly, in the present case, there was new evidence before the 24 ALJ on remand, including medical records post-dating the prior 25 administrative decision (A.R. 989-1040). 26 reevaluate Plaintiff’s residual functional capacity in light of the 27 new evidence. 28 (E.D. Cal. Aug. 2, 2017), appeal filed, No. 17-16979 (9th Cir. Oct. 2, The ALJ was entitled to See, e.g., Celedon v. Berryhill, 2017 WL 3284519, at *5 7 1 2017) (similarly applying Stacy to find law of the case did not 2 preclude reevaluation of claimant’s residual functional capacity given 3 new evidence before the ALJ on remand); Belmontes v. Berryhill, 2017 4 WL 1166275, at *7-8 (E.D. Cal. Mar. 28, 2017) (same). 5 6 Additionally, in both the prior action and in these proceedings, 7 Plaintiff has challenged the ALJs’ review of the medical record and 8 adverse credibility determinations, which had informed both ALJs’ Step 9 2 (severity) and Step 3 (residual functional capacity) determinations. 10 See Docket No. 16 in Harrison v. Colvin, ED CV 15-1362(E) (Plaintiff’s 11 motion for summary judgment); Plaintiff’s Motion, pp. 6-10. 12 previously remanding the matter, the Court chose not to reach these 13 other issues except insofar as to determine that reversal for the 14 payment of benefits was not warranted. See A.R. 863-73 & n.7. 15 Court’s mandate did not expressly or impliedly resolve any issues 16 concerning the prior ALJ’s Step 2 or Step 3 determinations. 17 reasons as well, the doctrine of law of the case does not here apply. 18 See Stacy, 825 F.3d at 567; see also Whaley v. Colvin, 2013 WL 19 1855840, at *14 (C.D. Cal. Apr. 30, 2013) (finding the law of the case 20 doctrine would not prohibit an ALJ from reconsidering claimant’s 21 residual functional capacity on remand, where court remanded on Step 5 22 issue and did not specifically preclude the ALJ from reconsidering 23 claimant’s residual functional capacity but rather allowed the ALJ to 24 “otherwise re-evaluate his decision”); compare Hall v. City of Los 25 Angeles, 697 F.3d 1059, 1067 (9th Cir. 2012) (issues decided by 26 necessary implication may invoke the law of the case doctrine); Ischay 27 v. Barnhart, 383 F. Supp. 2d 1199, 1217-19 (C.D. Cal. 2005) (finding 28 law of the case precluded ALJ from revisiting any other issues where 8 In The For these 1 court’s remand only authorized ALJ to take additional evidence to 2 determine Step 5 issue and impliedly affirmed ALJ’s findings at 3 earlier steps). 4 5 The rule of mandate generally provides that a trial court 6 receiving the mandate of an appellate court cannot vary or examine 7 that mandate for any purpose other than executing it. 8 at 568. 9 remand order in the subsequent administrative proceedings is itself Stacy, 825 F.3d In the Social Security context, “[d]eviation from the court’s 10 legal error, subject to reversal on further judicial review.” 11 Sullivan v. Hudson, 490 U.S. 877, 886 (1989) (citations omitted). 12 However, the Administration may “decide anything not foreclosed by the 13 mandate.” 14 States v. Cote, 51 F.3d 178, 181-82 (9th Cir. 1995) (“the lower court 15 may consider and decide any matters left open by the mandate of the 16 court”) (citations and internal brackets omitted). Stacy, 825 F.3d at 568 (citation omitted); see also United 17 18 As explained herein, the Court’s remand order did not expressly 19 or impliedly restrict the ALJ to only a “Step 4” or “Step 5” analysis. 20 Hence, the ALJ did not violate the rule of mandate by issuing a new 21 decision addressing other steps in the disability evaluation process. 22 See Stacy, 825 F.3d at 568 (noting that remand orders must be read 23 “holistically”); compare Cameron v. Berryhill, 2018 WL 4776075, at *4 24 (C.D. Cal. Oct. 1, 2018) (finding that ALJ erred in reconsidering on 25 remand earlier steps in the disability evaluation process and reaching 26 different limitations than a prior ALJ found to exist; the order of 27 remand had instructed the ALJ to determine at Step 4 whether the 28 claimant was capable of performing his past relevant work given his 9 1 limitations and specifically directed that “[n]othing in this decision 2 is intended to disturb the ALJ’s [residual functional capacity] 3 assessment”). 4 which the Court previously remanded the present case, nothing in the 5 Court’s remand order prevented the ALJ from doing so. While the ALJ effectively mooted the specific issue on 6 7 In any event, even if the ALJ erred by altering the residual 8 functional capacity assessment on remand, the error was harmless. 9 Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (error is See 10 harmless when it is “inconsequential to the ultimate nondisability 11 determination”) (citation and internal quotations omitted). 12 the most recent hearing, Plaintiff’s counsel presented the vocational 13 expert with a hypothetical question encompassing the residual 14 functional capacity the former ALJ found to exist, and the vocational 15 expert testified that a claimant with that capacity would be able to 16 perform Plaintiff’s past relevant work as a cashier, clarifying that 17 the DOT does not address overhead reaching and that the expert was 18 relying on other sources for her opinion (A.R. 816-17, 819-20).6 During The 19 6 Counsel questioned the expert as follows: Q. If we added to the hypothetical [for light work] the additional imitation of only overhead reaching bilaterally on an occasional basis, would the claimant be able to perform her past relevant work? A. The DOT does not address overhead reaching, but the master description as well as my experience in seeing this work performed in different settings, I do not believe that it would exclude occasional overhead [reaching] as a cashier. Q. Okay. 20 21 22 23 24 25 26 27 28 (continued...) 10 1 vocational expert’s testimony that Plaintiff could perform her past 2 relevant work with the limitations the former ALJ found to exist 3 plainly was within the scope of this Court’s mandate. 4 expert provided a sufficient explanation for her opinion to satisfy 5 the Court’s concern with the basis for the former ALJ’s Step 4 6 determination. 7 a reasonable explanation for [any] conflict [with the DOT] before 8 relying on [vocational expert] evidence to support a determination or 9 decision about whether a claimant is disabled”);7 Massachi v. Astrue, The vocational See Social Security Ruling 00-4p (an ALJ “must elicit 10 486 F.3d 1149, 1152-54 & n.19 (9th Cir. 2007) (discussing same); see 11 also Gilreath v. Berryhill, 2017 WL 4564707, at *6-7 (C.D. Cal. 12 Oct. 10, 2017) (finding harmless ALJ’s error in addressing issues 13 outside the scope of mandate because the ALJ clarified with the 14 vocational expert the issue identified on remand (i.e., whether the 15 claimant could perform other work existing in the national economy 16 /// 17 /// 18 /// 19 /// 20 21 6 (...continued) ALJ: Okay. So you just said it would not preclude the work? 22 A. Correct. Q. Okay. A. Would be able to perform. 23 24 25 26 27 28 (A.R. 819-20). 7 Social Security Rulings (“SSRs”) are binding on the Administration. See Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). 11 1 consistent with the DOT)).8 2 3 4 II. Substantial Evidence Supports the Conclusion that Plaintiff Can Work. 5 6 Substantial evidence supports the administrative conclusion that 7 Plaintiff can work. In particular, consultative examiners and state 8 agency physicians opined that Plaintiff has fewer limitations than the 9 ALJ found to exist. 10 11 Consultative examiner, Dr. Bryan To, prepared an internal 12 medicine evaluation dated March 10, 2010 (A.R. 461-66). Dr. To 13 reviewed a CT scan showing degenerative disc disease at C5-C6 (A.R. 14 461). 15 three times a week lasting four hours with medication; (2) atypical 16 chest pain (which she said was costochondritis), aggravated by moving 17 her shoulders and arms; (3) back pain radiating up to her neck and 18 down to her legs, aggravated by sitting for one hour and standing and 19 walking for 30 minutes; (4) multiple joint pains with stiffness in her 20 neck, shoulders, wrists, hands, hips, knees, ankles and feet; and 21 (5) a history of anxiety and insomnia (A.R. 461-62). 22 Plaintiff reportedly had lesser grip strength in the left (non- 23 dominant) hand, complaints of range of motion pain in her joints, but Plaintiff reportedly complained of: (1) migraine headaches On examination, 24 25 26 27 28 8 Additionally, as previously noted, the Ninth Circuit subsequently ruled that there was no “apparent or obvious conflict” between the DOT and a vocational expert’s testimony that a claimant who could not reach overhead with her right arm nevertheless could perform work as a cashier. See Gutierrez v. Colvin, 844 F.3d 804, 808 (9th Cir. 2016). 12 1 no other abnormal findings (A.R. 462-64). Dr. To diagnosed migraine 2 headaches, atypical chest pain probably secondary to costochondritis, 3 back pain, multiple joint pain, anxiety and insomnia, all per 4 Plaintiff’s report (A.R. 464). 5 capable of performing medium work with frequent walking on uneven 6 terrain, climbing ladders, working with heights, bending, kneeling, 7 stooping, crawling, and crouching, and preclusion from working with 8 heavy and moving machinery (A.R. 465).9 Dr. To opined that Plaintiff would be 9 10 Another consultative examiner, Dr. Ann Tat Hoang, prepared a 11 complete orthopedic consultation dated July 15, 2013 (A.R. 755-59). 12 Plaintiff reportedly complained of: (1) neck pain worsened by sitting, 13 standing and lying down; (2) numbness in the right forearm and right 14 hand; (3) constant, sharp and throbbing low back pain worsened by 15 sitting, standing, walking, bending and lifting; and (4) left shoulder 16 and chest pain (A.R. 755). 17 and back showed moderate degenerative disc disease at C4-C5 and C5-C6 18 with reversal of the normal lordotic curve, and that Plaintiff had 19 been prescribed pain medication and some physical therapy (A.R. 755, 20 758). 21 palpation of the cervical spine, tenderness over L5-S1, reported pain 22 deep within the left shoulder but with negative test results, full 23 range of motion, and no other abnormal findings (A.R. 756-58). 24 Hoang diagnosed arthritis and opined that Plaintiff could: Dr. Hoang stated that x-rays of the neck On examination, Plaintiff reportedly had tenderness on 25 Dr. 26 9 27 28 State agency physician Dr. J. Hartman prepared a Physical Residual Functional Capacity Assessment form dated March 18, 2010, opining that Plaintiff could perform medium work with no manipulative limitations (A.R. 471-75). 13 1 (1) occasionally lift and carry up to 50 pounds and frequently lift 2 and carry up to 20 pounds; (2) sit, stand or walk for four hours at a 3 time and for six hours in an eight-hour workday; (3) “continuously” 4 (over 2/3 of the time) use her hands, and “frequently” (1/3 to 2/3 of 5 the time) use her feet for operating foot controls; (4) occasionally 6 crouch and frequently perform other postural activities; (5) never 7 work at unprotected heights, occasionally work in extreme cold and 8 heat, and frequently work in other environmental conditions; and 9 (6) work with moderate noise (A.R. 758, 760-65). 10 11 The opinions of Dr. To and Dr. Hoang, which found lesser physical 12 limitations than the ALJ found to exist, constitute substantial 13 evidence supporting the ALJ’s non-disability determination. 14 v. Astrue, 495 F.3d 625, 631-32 (9th Cir. 2007) (where an examining 15 physician provides “independent clinical findings that differ from 16 findings of the treating physician, such findings are ‘substantial 17 evidence’” to support a disability determination) (citations and 18 internal quotations omitted). See Orn 19 20 Another consultative examiner, Dr. Earnest Bagner, III, prepared 21 a complete psychiatric evaluation for Plaintiff dated March 14, 2010 22 (A.R. 467-70). 23 spells, trouble sleeping, paranoia, migraine headaches, depression, 24 and difficulty with concentration and memory (A.R. 467). 25 was not then seeing a psychiatrist or counselor or taking any 26 psychiatric medications (A.R. 467-68). 27 reported feeling depressed and had a tearful affect, moderately 28 decreased speech and “tight” thought processes, with no other Plaintiff reportedly complained of anxiety, crying 14 Plaintiff On examination, Plaintiff 1 abnormalities (A.R. 468-69). Dr. Bagner diagnosed depressive disorder 2 (not otherwise specified) with a note to rule out PTSD (Post Traumatic 3 Stress Disorder), and assigned a Global Assessment of Functioning 4 (“GAF”) score of 65 (A.R. 469-70). 5 Association, Diagnostic and Statistical Manual of Mental Disorders 6 (“DSM-IV-TR”) 34 (4th Ed. 2000).10 7 would have: (1) no limitations completing simple tasks; (2) mild 8 limitations interacting with supervisors, peers and the public; 9 (3) mild limitations maintaining concentration and attention; and See American Psychological Dr. Bagner opined that Plaintiff 10 (4) mild to moderate limitations handling normal work stresses, 11 completing complex tasks, and completing a normal work week without 12 interruption (A.R. 470). 13 psychiatric treatment, Plaintiff should be “significantly” better in 14 less than six months (A.R. 470).11 However, Dr. Bagner also opined that, with 15 16 17 Another consultative examiner, Dr. Thaworn Rathana-Nakintara, prepared a complete psychiatric evaluation dated April 1, 2012 (A.R. 18 10 19 20 21 A GAF of 61-70 indicates “[s]ome mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.” See DSMIV-TR, p. 34. 22 11 23 24 25 26 27 28 State agency physician Dr. H. Skopec prepared a Psychiatric Review Technique form dated April 2, 2010 (A.R. 47888). Dr. Skopec opined that Plaintiff’s mental impairments are not severe, and assessed only mild limitations in activities of daily living, maintaining social functioning, and in maintaining concentration, persistence and pace, with no episodes of decompensation (A.R. 478-88). Dr. Skopec stated that it appeared Plaintiff’s psychiatric symptoms “do not significantly decrease” her “ability to function” (A.R. 488). In July of 2010, Dr. M. Bayar, another state agency physician, reviewed the record and agreed with Dr. Skopec’s findings (A.R. 493-94). 15 1 666-70). Plaintiff reportedly complained of anxiety attacks, shaking, 2 crying, nervousness, depression, insomnia, and absent mindedness (A.R. 3 666). 4 treatment with a therapist and that she was feeling better, not 5 depressed or anxious, and also reported that she then was taking Paxil 6 prescribed by her family physician (A.R. 666-67). 7 she had headaches most of the time, as well as pain in her shoulder 8 and neck (A.R. 667). 9 findings (A.R. 668-69). Plaintiff reported that she had completed two years of Plaintiff claimed Mental status examination produced no abnormal Dr. Rathana-Nakintara diagnosed adjustment 10 disorder with mixed anxiety and depressed mood and assigned a GAF of 11 70 (A.R. 669). 12 no work-related psychiatric limitations, stated that Plaintiff was 13 adhering and responding well to treatment and gave Plaintiff a good 14 prognosis (A.R. 669). Dr. Rathana-Nakintara opined that Plaintiff would have 15 16 The opinions of Dr. Bagner and Dr. Rathana-Nakintara, which found 17 that Plaintiff would have no psychologically-based work limitations or 18 that any limitations would be “significantly better” in less than six 19 months with treatment, support the ALJ’s non-disability determination. 20 Orn v. Astrue, 495 F.3d at 631-32. 21 22 State agency physicians reviewing Plaintiff’s claim in 2013 23 opined that Plaintiff retained a residual functional capacity for 24 light work consistent with the capacity the ALJ found to exist. 25 A.R. 87-88, 98-100. 26 the state agency physicians from 2010 (A.R. 471-75, 477-88, 493-94), 27 provide further substantial evidence supporting the ALJ’s decision. 28 See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (where the See These non-examining opinions, along with those of 16 1 opinions of non-examining physicians do not contradict “all other 2 evidence in the record” an ALJ properly may rely on these opinions); 3 Curry v. Sullivan, 925 F.2d 1127, 1130 n.2 (9th Cir. 1990) (same). 4 5 To the extent the evidence of record is conflicting, the ALJ 6 properly resolved the conflicts. See Treichler v. Commissioner, 775 7 F.3d 1090, 1098 (9th Cir. 2014) (court “leaves it to the ALJ” to 8 resolve conflicts and ambiguities in the record); Andrews v. Shalala, 9 53 F.3d at 1039-40 (court must uphold the administrative decision when 10 the evidence “is susceptible to more than one rational 11 interpretation”). 12 13 The vocational expert testified that a person with the residual 14 functional capacity the ALJ found to exist could perform Plaintiff’s 15 past relevant work as generally performed (A.R. 816-17). 16 properly relied on this testimony in denying disability benefits. 17 Barker v. Secretary, 882 F.2d 1474, 1478-80 (9th Cir. 1989); Martinez 18 v. Heckler, 807 F.2d 771, 774-75 (9th Cir. 1986). The ALJ See 19 20 III. The ALJ Did Not Materially Err in Weighing the Medical Evidence. 21 22 Plaintiff argues that the ALJ erred in finding nonsevere 23 Plaintiff’s Tietze’s syndrome and alleged mental impairments 24 (Plaintiff’s Motion, pp. 5-6; Plaintiff’s Reply, p. 3). 25 also argues that the ALJ erred in evaluating the opinions of treating 26 physicians, Dr. Agnes Quion and Dr. Khalid Ahmed (Plaintiff’s Motion, 27 pp. 6-8). 28 /// No material error occurred. 17 Plaintiff 1 A. Any Error in the ALJ’s Severity Findings was Harmless. 2 3 Plaintiff suggests that the first ALJ imposed the original 4 limitation to no more than occasional reaching above the shoulder 5 because of Plaintiff’s cervical spine impairment and Tietze’s syndrome 6 (Plaintiff’s Motion, pp. 4-5). 7 cervical spine impairment to be severe, the ALJ found Plaintiff’s 8 Tietze’s syndrome not to be severe (A.R. 782-85). 9 found that Plaintiff had severe left shoulder impingement syndrome While the second ALJ found Plaintiff’s Instead, the ALJ 10 consistent with imaging studies and Dr. Ahmed’s treating records 11 (summarized below) (A.R. 782-83, 786-87). 12 (reporting that December, 2008 cervical spine MRI showed disc bulges 13 at C4-C5, C5-C6, and C6-C7), A.R. 418-19 (November, 2007 cervical 14 spine MRI showing disc protrusions at C4-C5 and C5-C6); A.R. 307 15 (reporting that December, 2008 left shoulder MRI showed mild 16 impingement and tendinitis but no rotator cuff tear), A.R. 420-21 17 (November, 2007 left shoulder MRI showing no rotator cuff tear, 18 fracture or dislocation, and “mild diffuse increased signal intensity 19 within the humeral marrow”); A.R. 448 (February, 2010 X-rays of 20 Plaintiff’s cervical spine showing mild degenerative disc disease at 21 C4-C5 and C5-C6 with mild spondylosis at C3 through C6); A.R. 449 22 (February, 2010 cervical spine CT scan showing “early” degenerative 23 disc disease at C5-C6). See e.g., A.R. 307 24 25 When, as here, a claimant is found to have at least one severe 26 impairment, the ALJ is required to consider the functional effects of 27 all impairments, severe and nonsevere. 28 8p (“In assessing [residual functional capacity], the adjudicator must 18 See Social Security Ruling 96- 1 consider limitations and restrictions imposed by all of an 2 individual’s impairments, even those that are not ‘severe.’”). 3 ALJ considered Plaintiff’s shoulder impairment and associated chest 4 pain in determining Plaintiff’s residual functional capacity. 5 had diagnosed costochondritis per Plaintiff’s report and still found 6 Plaintiff capable of medium work (A.R. 464-65). 7 capable of only light work, the ALJ adopted greater limitations than 8 Dr. To found to exist because Dr. To and others “did not give full 9 consideration to the claimant’s shoulder problems . . . relate[d] to The Dr. To In finding Plaintiff 10 lifting and carrying” (A.R. 788). The ALJ did not materially err in 11 finding Plaintiff’s Tietze’s syndrome nonsevere. 12 498 F.3d 909, 911 (9th Cir. 2007) (any Step 2 error is harmless where 13 the ALJ considers the limitations of a nonsevere impairment in 14 determining a claimant’s residual functional capacity).12 15 Additionally, as noted above, the vocational expert testified that a 16 person limited to occasional overhead reaching would be capable of 17 performing Plaintiff’s past relevant work consistent with the DOT 18 (A.R. 819-20). 19 /// 20 /// See Lewis v. Astrue, 21 22 12 23 24 25 26 27 28 According to a summary of the medical records, Plaintiff had emergency room visits for chest pain and shortness of breath in 2006 and 2007 – when Plaintiff was still working (A.R. 273-75). In April of 2007, Plaintiff reportedly complained of chest pain and swelling on the left side with pain radiating to her hands (A.R. 275). In August and September of 2007 (after the robbery but before Plaintiff stopped working), Plaintiff reportedly again complained of left sided chest pain similar to pain she experienced previously (A.R. 275-76). These visits suggest that Plaintiff was able to work as a cashier despite swelling and associated pain in her chest. 19 1 Plaintiff contends in a conclusory manner that the ALJ erred in 2 failing to find Plaintiff’s alleged mental impairments to be severe. 3 See Plaintiff’s Motion, p. 6. 4 disorder with mixed anxiety and depression” to be a medically 5 determinable impairment that does not cause more than minimal 6 limitation in the claimant’s ability to perform basic work activities 7 (i.e. a nonsevere impairment). 8 that Plaintiff had no treatment for mental health symptoms since the 9 alleged onset date).13 The ALJ found Plaintiff’s “adjustment See A.R. 783-85 (erroneously stating In so finding, the ALJ gave “great” weight to 10 Dr. Rathana-Nakintara’s opinion that Plaintiff has no mental health 11 related work limitations and “some” weight to Dr. Bagner’s earlier 12 opinion that Plaintiff would have none to mild limitations, except for 13 mild to moderate limitations in handling normal stresses at work, 14 completing complex tasks, and completing a normal work week (A.R. 783- 15 84). 16 Nakintara that Plaintiff had completed mental health treatment, was 17 taking Paxil, felt better, and was neither depressed nor anxious (A.R. 18 666-67). 19 assessing a Global Assessment of Functioning (“GAF”) score of 65 and 20 opining that Plaintiff’s condition would improve in less than six The ALJ observed that Plaintiff reported to Dr. Rathana- Such report was consistent with Dr. Bagner’s 2010 evaluation 21 22 13 23 24 25 26 27 28 As summarized above, Plaintiff reported to Dr. RathanaNakintara in April of 2012 that she had completed two years of therapy and was being prescribed Paxil by her family doctor (A.R. 666-67). It thus appears that the ALJ mischaracterized the record by stating that Plaintiff had received no mental health treatment after the alleged onset date. While an ALJ’s material mischaracterization of the record can warrant remand, see, e.g., Regennitter v. Commissioner, 166 F.3d 1294, 1297 (9th Cir. 1999), the subject mischaracterization was not material because the ALJ elsewhere acknowledged Plaintiff’s post-alleged onset date mental health treatment. See A.R. 784. 20 1 months with treatment (A.R. 470). From the record, it appears that 2 Plaintiff’s psychological problems had decreased (A.R. 784). 3 e.g., A.R. 332-33, 339 (October, 2008 psychiatric report stating that 4 in January of 2008 Plaintiff appeared to have symptoms consistent with 5 PTSD from the robbery, but on follow up in October of 2008, Plaintiff 6 reported improvement from medication and counseling and was assessed 7 with a GAF of 62). See, 8 9 While the ALJ found Plaintiff’s alleged mental impairment to be 10 nonsevere, the ALJ stated that Plaintiff’s residual functional 11 capacity assessment was based on a consideration of all of Plaintiff’s 12 medically determinable impairments (A.R. 785). 13 considered Plaintiff’s mental impairment in formulating Plaintiff’s 14 residual functional capacity, so any error in failing to find the 15 mental impairment severe was harmless. 16 at 911; see also Gray v. Commissioner, 365 Fed. App’x 60, 61-62 (9th 17 Cir. 2010) (finding any Step 2 error harmless where ALJ considered 18 nonsevere mental impairments in determining claimant’s residual 19 functional capacity). The ALJ specifically See Lewis v. Astrue, 498 F.3d 20 21 22 B. The ALJ Stated Legally Sufficient Reasons for Rejecting the Opinions of the Treating Physicians. 23 24 Generally, a treating physician’s conclusions “must be given 25 substantial weight.” Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 26 1988); see Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) (“the 27 ALJ must give sufficient weight to the subjective aspects of a 28 doctor’s opinion. . . . This is especially true when the opinion is 21 1 that of a treating physician”) (citation omitted); see also Orn v. 2 Astrue, 495 F.3d 625, 631-33 (9th Cir. 2007) (discussing deference 3 owed to treating physicians’ opinions). 4 physician’s opinion is contradicted by another physician, the opinion 5 can only be rejected for specific and legitimate reasons that are 6 supported by substantial evidence in the record. 7 F.3d 821, 830-31 (9th Cir. 1995).14 8 the ALJ stated sufficient reasons for rejecting the opinions of Dr. 9 Quion and Dr. Ahmed. Where, as here, a treating Lester v. Chater, 81 Contrary to Plaintiff’s argument, 10 11 Worker’s compensation treating orthopedist Dr. Ahmed treated 12 Plaintiff from November of 2007 through August of 2008 – a period long 13 predating the alleged disability period. 14 305-06, 403-06. 15 2008, Dr. Ahmed diagnosed cervical disc herniation with radiculitis/ 16 radiculopathy, left shoulder impingement syndrome with rotator cuff 17 tendonitis/tear, multiple contusions of the left upper rib (resolved), 18 and anxiety, depression and insomnia (A.R. 229). 19 that Plaintiff had a “positive MRI for disc protrusions at C4-C5 and 20 C5-C6” and “restricted mobility with positive foraminal compression 21 test” (A.R. 230); see also A.R. 418-19 (November, 2007 cervical spine 22 /// 23 /// 24 /// 25 /// See A.R. 225-33, 241-99, In his most recent treatment report from August 27, Dr. Ahmed stated 26 27 28 14 Rejection of an uncontradicted opinion of a treating physician requires a statement of “clear and convincing” reasons. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). 22 1 MRI).15 2 3 Dr. Ahmed opined that Plaintiff should be precluded from 4 repetitive motion of the neck and, with regard to her left shoulder, 5 repetitive “up to and over the shoulder” activities, with no pushing, 6 pulling, squeezing, and no heavy lifting over 15 to 20 pounds (A.R. 7 230). Dr. Ahmed opined that Plaintiff should receive future medical 8 care including physical therapy and medication for her pain, cervical 9 epidural steroid injections, and left shoulder arthroscopic 10 decompression surgery (A.R. 231). There is no record that Plaintiff 11 has ever had any epidural steroid injections or surgery on her 12 shoulder.16 13 14 15 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A November, 2007 left shoulder MRI showed no rotator cuff tear, fracture or dislocation, and “mild diffuse increased signal intensity within the humeral marrow” (A.R. 420-21). A December, 2008 left shoulder MRI reportedly showed mild impingement and tendinitis but no rotator cuff tear (A.R. 307). 16 Agreed Medical Examiner Dr. Jack Akmakjian, an orthopedic surgeon, evaluated Plaintiff in November of 2008 – just two months after Dr. Ahmed’s last evaluation (A.R. 309-17). Dr. Akmakjian had evaluated Plaintiff in June of 2008, and had recommended trigger point injections to help with her left shoulder and neck, but Plaintiff declined (A.R. 310). On examination, Plaintiff reportedly had radiating pain in the neck but full range of motion and no crepitus, discomfort across the left anterior chest wall with some swelling and associated tenderness, which Dr. Akmakjian opined was from referred pain from her neck, and some left shoulder pain with limited range of motion and positive impingement sign (A.R. 310-14). Dr. Akmakjian diagnosed left anterior chest wall swelling, most probably from the cervical spine, cervical radiculitis, and left shoulder impingement syndrome (A.R. 314). Dr. Akmakjian opined that Plaintiff should be precluded from very heaving lifting and repetitive overhead work (A.R. 315-16; see also A.R. 307-08 (January, 2009, follow up evaluation post-MRI study of Plaintiff’s spine and shoulder)). 23 1 The ALJ gave “little” weight to Dr. Ahmed’s opinion, stating that 2 the opinion was remote in time (i.e., issued more than one year prior 3 to the alleged onset date). 4 assessed greater limitations than the ALJ found to exist by limiting 5 Plaintiff to no repetitive motion of the neck or up to and over the 6 shoulder activities, the ALJ permissibly could reject Dr. Ahmed’s 7 opinion for its remoteness in favor of the examining physicians’ 8 opinions post-dating the alleged onset date. 9 Commissioner, 533 F.3d 1155, 1165 (9th Cir. 2008) (“Medical opinions See A.R. 789. Although Dr. Ahmed See Carmickle v. 10 that predate the alleged onset of disability are of limited 11 relevance”) (citation omitted); Johnson v. Shalala, 60 F.3d 1428, 1432 12 (9th Cir. 1995) (an ALJ may reject a medical opinion that includes no 13 specific functional capacity assessment during the relevant time 14 period). 15 16 Internist Dr. Quion treated Plaintiff five times (during the 17 period from December of 2010 through March of 2013) before issuing her 18 opinion (A.R. 671-92). 19 patient in December of 2010, reporting, inter alia, having a migraine 20 for three days, neck and shoulder pain, low back pain with 21 radiculopathy to the right thigh and hips, pain in both feet, and 22 depression and anxiety for which she was taking Paxil (A.R. 675). 23 examination, Plaintiff reportedly had low back pain with radiculopathy 24 to the lower extremities (A.R. 675). 25 variants, low back pain with radiculopathy to the lower extremities, 26 cervical disc degeneration, and depression with anxiety (A.R. 675). 27 Dr. Quion prescribed medications (A.R. 675-76). 28 April of 2011, for pre-operative evaluation for laparoscopy and Plaintiff presented to Dr. Quion as a new 24 On Dr. Quion assessed migraine Plaintiff returned in 1 hysteromy for ovarian cysts (A.R. 679). She reportedly had headaches, 2 chest pain (coschondritis, chest wall pain), abdominal pain, and 3 depression, but no joint pain, back pain or myalgias (A.R. 679). 4 Examination findings were unchanged from December of 2010 (A.R. 680). 5 Dr. Quion assessed abdominal pain, migraines, and depression, and 6 cleared Plaintiff for surgery (A.R. 680).17 7 December of 2011 for medication refills, reporting pain in her lower 8 stomach (A.R. 673). 9 but no other reported abnormalities (A.R. 673). Plaintiff returned in On examination, she exhibited an ingrown toenail Dr. Quion’s 10 assessment and plan were unchanged from the prior visit (A.R. 673-74). 11 Plaintiff returned in April of 2012 to refill her migraine medication, 12 reporting “episodes” every day (A.R. 671). 13 unchanged from the prior visits (A.R. 671). 14 migraines and continued Plaintiff’s medications (A.R. 671-72). Examination findings were Dr. Quion assessed 15 16 Plaintiff provided Dr. Quion with a “Multiple Impairment 17 Questionnaire” form in April of 2012, which Dr. Quion did not complete 18 until March 29, 2013 (A.R. 693-700). 19 that Plaintiff had been treated every three months, with her most 20 recent treatment occurring on March 26, 2013 (A.R. 694; see also A.R. 21 702-05 (March, 2013 treatment note briefly indicating Plaintiff’s 22 medications were continued)). 23 costochondritis, Tietze’s syndrome, cervical arthritis, major 24 depression and asthma (A.R. 694). 25 clinical findings to support the diagnoses, Dr. Quion referenced an X- On the form, Dr. Quion noted Dr. Quion diagnosed migraines, Where asked to provide positive 26 27 28 17 A pre-operative chest x-ray from June of 2011 was normal (A.R. 686). A comparison chest x-ray from September of 2012 was also normal (A.R. 689). 25 1 ray showed cervical arthritis diagnosed in 2009, major depression 2 diagnosed by San Bernardino County Behavioral Health, and otherwise 3 noted that medications helped Plaintiff’s conditions (A.R. 694). 4 Quion reported that Plaintiff has the following symptoms: neck pain, 5 chest wall pain, shoulder pain and upper back pain (about three times 6 a week), moderate to severe throbbing headaches with photosensitivity 7 and nausea (four to five times a week), chest wall tenderness and deep 8 depression (A.R. 694-95). 9 too cold or too hot weather, loud noises and exposure to sun Dr. Dr. Quion opined that physical activity, 10 contribute to Plaintiff’s pain (A.R. 695). Dr. Quion estimated 11 Plaintiff’s pain and fatigue to be between eight and 10 on a scale of 12 one to 10 (A.R. 695). 13 been able to relieve Plaintiff’s pain completely with medication 14 without unacceptable side effects (A.R. 696). However, Dr. Quion also indicated that she had 15 16 Dr. Quion opined that Plaintiff could sit three to four hours and 17 stand and walk three to four hours in an eight-hour workday, with the 18 opportunity to get up and move around every three hours (A.R. 696). 19 Dr. Quion indicated that it would be necessary to recommend that 20 Plaintiff not stand and walk continuously in a work setting (A.R. 21 696). 22 up to 10 pounds, and occasionally lift and carry up to 20 pounds, with 23 limitations in repetitive reaching, handling, fingering or lifting 24 (A.R. 696). 25 movement until her chest wall starts to hurt (A.R. 696). 26 opined that Plaintiff would have “minimal” limitations in grasping, 27 turning and twisting objects, and “moderate” limitation in using her 28 fingers/hands for fine manipulation and using her arms for reaching Dr. Quion opined that Plaintiff could frequently lift and carry Dr. Quion indicated that Plaintiff could do repetitive 26 Dr. Quion 1 (A.R. 697). Dr. Quion opined that Plaintiff would need to take 2 unscheduled breaks every three to four hours, for 20 to 30 minutes, 3 and that Plaintiff would miss work more than three times a month due 4 to her impairments (A.R. 699). 5 would be limited to no pushing or pulling, no stooping, and certain 6 environmental limitations (A.R. 700). Dr. Quion indicated that Plaintiff 7 8 9 The ALJ gave “little” weight to Dr. Quion’s opinions because the opinions were unsupported by Dr. Quion’s own treatment records or by 10 objective clinical findings (A.R. 789). An ALJ may properly reject a 11 treating physician’s opinion where, as here, the opinion is not 12 adequately supported by treatment notes or objective clinical 13 findings. 14 2008) (ALJ may reject a treating physician’s opinion that is 15 inconsistent with other medical evidence, including the physician’s 16 treatment notes); Batson v. Commissioner, 359 F.3d 1190, 1195 (9th 17 Cir. 2004) (“an ALJ may discredit treating physicians’ opinions that 18 are conclusory, brief, and unsupported by the record as a whole . . . 19 or by objective medical findings”); Connett v. Barnhart, 340 F.3d 871, 20 875 (9th Cir. 2003) (treating physician’s opinion properly rejected 21 where physician’s treatment notes “provide no basis for the functional 22 restrictions he opined should be imposed on [the claimant]”); Matney 23 v. Sullivan, 981 F.2d 1016, 1019-20 (9th Cir. 1992) (“The ALJ need not 24 accept an opinion of a physician - even a treating physician - if it 25 is conclusory and brief and is unsupported by clinical findings”); 20 26 C.F.R. §§ 404.1527(c), 416.927(c) (factors to consider in weighing 27 treating source opinion include the supportability of the opinion by 28 medical signs and laboratory findings, the length of the treatment See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 27 1 relationship and frequency of examination, the nature and extent of 2 the treatment relationship including examinations and testing, whether 3 the opinion is from a specialist concerning issues related to the 4 source’s area of specialty, as well as the opinion’s consistency with 5 the record as a whole). 6 7 As the ALJ observed, Dr. Quion’s treatment of Plaintiff was 8 relatively cursory, and Dr. Quion’s treatment notes do not contain 9 diagnostic testing results or other objective findings suggestive of 10 disability. Also significant is Dr. Quion’s statement that she had 11 succeeded in relieving Plaintiff’s pain completely without 12 unacceptable side effects (A.R. 696). 13 Quion’s treatment notes predating her opinion, and her suggestion that 14 she was able to control Plaintiff’s symptoms, the ALJ stated legally 15 sufficient reasoning for discounting Dr. Quion’s opinion.18 16 /// 17 /// 18 /// 19 /// Given the paucity of Dr. 20 21 22 23 24 25 26 27 28 18 Plaintiff provided additional treatment notes from Dr. Quion for treatment from 2014 to 2016, post-dating Dr. Quion’s residual functional capacity assessment and the prior ALJ’s decision (A.R. 989-1036). Plaintiff did not provide an updated opinion from Dr. Quion. The additional records are also cursory and do not support Dr. Quion’s opinion. Plaintiff presented mostly for medication refills, and her examination results were unremarkable – the records simply duplicated examination results from the first visit in July of 2014, which noted throat congestion but no other reported abnormal findings. See A.R. 989-1036 (records for treatment in July, November, December of 2014, January, March, June, August, and December of 2015, and January, February, April, May, and June of 2016). 28 1 2 IV. The ALJ Stated Legally Sufficient Reasons for Finding Plaintiff’s Subjective Statements and Testimony Less Than Fully Credible. 3 4 Plaintiff also challenges the legal sufficiency of the ALJ’s 5 stated reasons for finding Plaintiff’s subjective statements and 6 testimony less than fully credible. 7 Plaintiff’s Reply, p. 3. 8 credibility is entitled to “great weight.” 9 F.2d 1121, 1124 (9th Cir. 1990); Nyman v. Heckler, 779 F.2d 528, 531 See Plaintiff’s Motion, pp. 8-10; An ALJ’s assessment of a claimant’s Anderson v. Sullivan, 914 10 (9th Cir. 1985). Where, as here, an ALJ finds that the claimant’s 11 medically determinable impairments reasonably could be expected to 12 cause some degree of the alleged symptoms of which the claimant 13 subjectively complains, any discounting of the claimant’s complaints 14 must be supported by specific, cogent findings. 15 622 F.3d 1228, 1234 (9th Cir. 2010); Lester v. Chater, 81 F.3d 821, 16 834 (9th Cir. 1995); but see Smolen v. Chater, 80 F.3d 1273, 1282-84 17 (9th Cir. 1996) (indicating that ALJ must offer “specific, clear and 18 convincing” reasons to reject a claimant’s testimony where there is no 19 evidence of “malingering”).19 20 sufficiently specific to allow a reviewing court to conclude the ALJ See Berry v. Astrue, An ALJ’s credibility finding “must be 21 22 23 24 25 26 27 28 19 In the absence of an ALJ’s reliance on evidence of “malingering,” most recent Ninth Circuit cases have applied the “clear and convincing” standard. See, e.g., Brown-Hunter v. Colvin, 806 F.3d 487, 488-89 (9th Cir. 2015); Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014); Treichler v. Commissioner, 775 F.3d 1090, 1102 (9th Cir. 2014); Ghanim v. Colvin, 763 F.3d 1154, 1163 n.9 (9th Cir. 2014); Garrison v. Colvin, 759 F.3d 995, 1014-15 & n.18 (9th Cir. 2014); see also Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting earlier cases). In the present case, the ALJ’s findings are sufficient under either standard, so the distinction between the two standards (if any) is academic. 29 1 rejected the claimant’s testimony on permissible grounds and did not 2 arbitrarily discredit the claimant’s testimony.” 3 Barnhart, 367 F.3d 882, 885 (9th Cir. 2004) (internal citations and 4 quotations omitted); see also Social Security Ruling 96-7p (explaining 5 how to assess a claimant’s credibility), superseded, Social Security 6 Ruling 16-3p (eff. Mar. 28, 2016).20 7 stated sufficient reasons for deeming Plaintiff’s subjective 8 complaints less than fully credible. See Moisa v. As discussed below, the ALJ 9 10 A. Summary of Plaintiff’s Testimony and Statements 11 12 Plaintiff testified that she stopped working in 2007, after she 13 was robbed while at work. See A.R. 804-05; see also A.R. 42 14 (Plaintiff testifying at the first administrative hearing that she 15 stopped working when her doctor “took [her] off” work due to PTSD 16 after the robbery). 17 since 2007 (A.R. 805). 18 different mental and physical problems after the robbery, namely, 19 anxiety, depression, Tietze’s syndrome (where her chest swells and 20 affects her neck and shoulder), migraine headaches, degenerative 21 disease in her neck, neck and back pain, hip pain, asthma, and 22 swelling in her hands and feet. Plaintiff had not tried to find any other work Plaintiff testified that she started having See A.R. 805-07, 812-13; see also 23 20 24 25 26 27 28 The appropriate analysis in the present case would be substantially the same under either SSR. See R.P. v. Colvin, 2016 WL 7042259, at *9 n.7 (E.D. Cal. Dec. 5, 2016) (observing that only the Seventh Circuit has issued a published decision applying SSR 16-3p retroactively; also stating that SSR 16-3p “implemented a change in diction rather than substance”) (citations omitted); see also Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (suggesting that SSR 16-3p “makes clear what our precedent already required”). 30 1 A.R. 188 (“Disability Report - Adult” form asserting that Plaintiff 2 stopped working because of claimed depression, post traumatic stress 3 disorder, migraines, anxiety attacks, degenerative disc disease in the 4 neck, asthma, and memory loss). 5 rheumatologist a month before the hearing, and reportedly found out 6 she also has “RA” (rheumatoid arthritis) (A.R. 806). 7 said she now has sporadic urinary incontinence, for which she requires 8 access to a bathroom (A.R. 811-12).21 Plaintiff had just consulted with a Plaintiff also 9 10 Plaintiff said she has migraines eight to 10 times a month that 11 last for two to three days for which she must take medicine and lie 12 down (A.R. 810-11). 13 some difficulty walking and sitting for which she also lies down (A.R. 14 806-07). 15 month, and that she believed she has difficulty dealing with the 16 public (A.R. 814-15). 17 causes her to have difficulty reaching overhead (A.R. 811). 18 testified that her hand swelling causes her to have difficulty turning 19 and grasping things and limits her ability to lift and carry objects 20 (A.R. 813). 21 due to pain (A.R. 815). Plaintiff said she has daily pain which causes Plaintiff said she has anxiety attacks six or seven times a Plaintiff said that her Tietze’s syndrome Plaintiff Plaintiff estimated that she has five “bad” days a week 22 23 24 Plaintiff testified that, on a typical day, she gets up, eats breakfast, showers, and lies down where she watches television (A.R. 25 26 27 28 21 Clinical notes from July of 2009 indicated that Plaintiff then had “mixed incontinence,” but medication reportedly had stopped her from leaking urine (A.R. 428). are no other treatment notes regarding complaints of incontinence. 31 There 1 807). Plaintiff can make her own meals, do her own personal care, and 2 grocery shop (A.R. 808-09). 3 2014, Plaintiff had testified that, apart from lying down, she kept 4 herself busy by doing “stuff” around the house like dusting, watching 5 television, using a computer, going to the grocery store or to church 6 (A.R. 53-54).22 At the first administrative hearing in 7 8 B. The ALJ’s Stated Reasoning is Legally Sufficient. 9 10 The ALJ acknowledged that Plaintiff’s impairments could 11 reasonably be expected to cause some alleged symptoms, but found that 12 Plaintiff’s statements concerning the intensity, persistence and 13 limiting effects of those symptoms were not entirely credible (A.R. 14 786-89). 15 not entirely consistent with the medical evidence and other evidence The ALJ reasoned that Plaintiff’s subjective statements were 16 17 18 19 20 21 22 23 24 25 26 27 28 22 It appears that Plaintiff reported to her health care providers that Plaintiff engages in more extensive daily activities than admitted in her testimony and other statements. Agreed Medical Examiner Dr. Feldman noted in October of 2008 that Plaintiff reportedly spent her days taking care of her personal needs, walking or driving her children to the bus stop, cleaning, cooking, doing laundry, dishes, taking care of her children (ages 15, 11, and 9) at home, watching television, reading, listening to music, seeing her boyfriend, and attending doctor’s appointments (A.R. 333; compare A.R. 310 (Plaintiff reporting to Agreed Medical Examiner Dr. Akmakjian in November of 2008 that she had difficulty with activities of daily living including vacuuming, doing dishes, and lifting or carrying things including groceries)). While Plaintiff complained of headaches three times a week lasting for hours, she reportedly continued her activities through headaches (A.R. 333). Consultative examiner Dr. Bagner noted in March of 2010 that Plaintiff reportedly spent her days getting up and getting her kids up for school, doing some housework, trying to nap, crocheting, and that Plaintiff reported that she can drive (A.R. 468). 32 1 in the record (A.R. 786). For example, the ALJ observed: (1) although 2 Plaintiff alleged an onset date of January 31, 2010, Plaintiff had 3 virtually no earnings since 2007, when she stopped working after the 4 robbery (A.R. 786); (2) while Plaintiff complained of chronic neck 5 pain and was found to have cervical degenerative disc disease, Dr. 6 Quion’s treatment notes indicated that Plaintiff is prescribed 7 analgesics and her physical examinations are unremarkable (A.R. 786- 8 87); (3) while Plaintiff complained of migraine headaches, the 9 treatment notes do not reflect the frequency of migraines Plaintiff 10 reports since many notes do not contain any complaints of migraines 11 (A.R. 787); and (4) a review of medical records from the time 12 Plaintiff stopped working in 2007 until after the alleged onset dates, 13 and, specifically, consideration of Dr. Quion’s later unremarkable 14 examinations, suggests that Plaintiff’s condition improved (A.R. 789). 15 The ALJ also cited Plaintiff’s daily activities of caring for her 16 children, performing personal care, preparing meals, doing household 17 chores, driving, shopping, and managing money as a basis for 18 discounting Plaintiff’s subjective complaints (A.R. 789). 19 20 An ALJ may consider a claimant’s work record when weighing the 21 claimant’s subjective complaints. See 20 C.F.R. §§ 404.1529(c)(3), 22 416.929(c)(3) (in evaluating the intensity and persistence of a 23 claimant’s symptoms, the fact finder “will consider all of the 24 evidence presented, including information about [the claimant’s] prior 25 work record”); Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) 26 (claimant’s limited work history can affect credibility of claims 27 regarding inability to work). 28 tried to find any work since 2007 (A.R. 805). Plaintiff testified that she had not 33 1 An ALJ may also consider statements by medical sources when 2 weighing the credibility of a claimant’s subjective complaints. See 3 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4) (“We will consider 4 . . . statements by your medical sources” when assessing credibility); 5 Moncada v. Chater, 60 F.3d 521, 524 (9th Cir. 1995) (upholding 6 rejection of claimant’s claim of excessive pain where ALJ identified 7 contrary opinion of claimant’s examining physician as specific 8 evidence for discounting credibility). 9 medical evidence suggesting that a claimant’s symptoms have improved An ALJ may also consider 10 or successfully responded to medication when weighing a claimant’s 11 subjective complaints. 12 (effectiveness of medication and treatment is a relevant factor in 13 determining the severity of a claimant’s symptoms); Tommasetti v. 14 Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (a favorable response to 15 treatment can undermine a claimant’s complaints of debilitating pain 16 or other severe symptoms); Morgan v. Commissioner, 169 F.3d 595, 599 17 (9th Cir. 1999) (ALJ properly discredited claimant’s subjective 18 complaints by citing physician’s report that symptoms improved with 19 medication); Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1999) (ALJ 20 did not err in considering that medication “aided” claimant’s symptoms 21 in assessing claimant’s credibility); Odle v. Heckler, 707 F.2d 439, 22 440 (9th Cir. 1983) (ALJ may consider whether treatment produced 23 satisfactory response and control of pain). 24 effectively controlled with medication are not disabling for the 25 purpose of determining eligibility for social security benefits. 26 Warre v. Commissioner, 439 F.3d 1001, 1006 (9th Cir. 2006). 27 ALJ cited the unremarkable records from Dr. Quion, who opined that 28 Plaintiff’s pain was completely controlled with medication without See 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) 34 Impairments that can be See Here, the 1 unacceptable side effects (A.R. 696). 2 3 An ALJ permissibly may rely in part on a lack of objective 4 medical evidence to discount a claimant’s allegations of disabling 5 symptomology. 6 (“Although lack of medical evidence cannot form the sole basis for 7 discounting pain testimony, it is a factor the ALJ can consider in his 8 [or her] credibility analysis.”); Rollins v. Massanari, 261 F.3d 853, 9 857 (9th Cir. 2001) (same); see also Carmickle v. Commissioner, 533 See Burch v. Barnhart, 400 F.3d 676, 681 (2005) 10 F.3d 1155, 1161 (9th Cir. 2008) (“Contradiction with the medical 11 record is a sufficient basis for rejecting the claimant’s subjective 12 testimony”); Social Security Ruling 16–3p (“[O]bjective medical 13 evidence is a useful indicator to help make reasonable conclusions 14 about the intensity and persistence of symptoms, including the effects 15 those symptoms may have on the ability to perform work-related 16 activities . . .”). 17 symptom testimony and objective medical evidence cannot be the sole 18 basis for rejecting a claimant’s testimony, Burch v. Barnhart, 400 19 F.3d at 681, the ALJ did not reject Plaintiff’s complaints solely on 20 the ground that the complaints were inconsistent with the objective 21 medical evidence. 22 nature of Plaintiff’s activities of daily living as not supporting her 23 claim of disability (A.R. 789). Although inconsistencies between subjective For example, the ALJ also relied in part on the 24 25 Inconsistencies between admitted activities and claimed 26 incapacity properly may impugn the accuracy of a claimant’s testimony 27 and statements under certain circumstances. 28 Astrue, 499 Fed. App’x 701, 703 (9th Cir. 2012) (ALJ properly 35 See, e.g., Thune v. 1 discredited pain allegations as contradicting claimant’s testimony 2 that she gardened, cleaned, cooked, and ran errands); Stubbs-Danielson 3 v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008) (claimant’s “normal 4 activities of daily living, including cooking, house cleaning, doing 5 laundry, and helping her husband in managing finances” was sufficient 6 explanation for discounting claimant’s testimony). 7 difficult to reconcile certain Ninth Circuit opinions discussing when 8 a claimant’s daily activities properly may justify a discounting of 9 the claimant’s testimony and statements. However, it is Compare Stubbs-Danielson v. 10 Astrue with Vertigan v. Halter, 260 F.3d 1044, 1049-50 (9th Cir. 2001) 11 (“the mere fact that a plaintiff has carried on certain daily 12 activities, such as grocery shopping, driving a car, or limited 13 walking for exercise, does not in any way detract from her credibility 14 as to her overall disability”); see also Diedrich v. Berryhill, 874 15 F.3d 634, 642-43 (9th Cir. 2017) (daily activities of cooking, 16 household chores, shopping and caring for a cat insufficient to 17 discount the claimant’s subjective complaints). 18 19 In the present case, the Court finds that the activities 20 Plaintiff admitted to her treatment providers and at the hearing 21 properly undermined Plaintiff’s complaints of allegedly disabling 22 pain. 23 discounting Plaintiff’s claim that she supposedly must lie down most 24 of every day due to pain. 25 (“The ALJ also pointed out ways in which [the claimant’s] claim to 26 have totally disabling pain was undermined by her own testimony about 27 her daily activities, such as attending to the needs of her two young 28 children, cooking, housekeeping, laundry, shopping, attending therapy The ALJ properly could rely on these admitted activities in See Rollins v. Massanari, 261 F.3d at 857 36 1 and various other meetings every week.”).23 2 3 CONCLUSION 4 5 For all of the foregoing reasons,24 Plaintiff’s motion for 6 summary judgment is denied and Defendant’s motion for summary judgment 7 is granted.25 8 9 LET JUDGMENT BE ENTERED ACCORDINGLY. 10 11 DATED: October 24, 2018. 12 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 23 The Court should not and does not determine de novo the accuracy of Plaintiff’s testimony and statements concerning her subjective symptomatology. It is for the Administration, and not this Court, to evaluate the accuracy of Plaintiff’s testimony and statements regarding the intensity and persistence of Plaintiff’s subjective symptomatology. See Magallanes v. Bowen, 881 F.2d 747, 750, 755–56 (9th Cir. 1989). 24 20 21 22 23 24 25 26 27 28 The Court has considered and rejected each of Plaintiff’s arguments. Neither Plaintiff’s arguments nor the circumstances of this case show any “substantial likelihood of prejudice” resulting from any error allegedly committed by the Administration. See generally McLeod v. Astrue, 640 F.3d 881, 887-88 (9th Cir. 2011) (discussing the standards applicable to evaluating prejudice). 25 To the extent Plaintiff’s conditions may have worsened after the ALJ’s most recent decision, nothing prevents Plaintiff from filing a new application based on new evidence. See Sanchez v. Secretary of Health and Human Servs., 812 F.2d 509, 512 (9th Cir. 1987) (when a claimant has new evidence of a disability, the correct procedure is to reapply for benefits; if she can prove a disabling impairment, she will be entitled to benefits as of the date of the new application). 37
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