Owen v. Commissioner of Social Security Administration, No. 3:2012cv01705 - Document 20 (D. Or. 2014)

Court Description: OPINION AND ORDER. For the foregoing reasons, the Commissioner's decision is AFFIRMED. IT IS SO ORDERED. Signed on 10/28/2014 by Judge Malcolm F. Marsh. (pvh)

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Owen v. Commissioner of Social Security Administration Doc. 20 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON SHAWN LENOR OWEN, Plaintiff, 3:12-cv-01705-MA OPINION AND ORDER v. COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant. ARTHUR WILBER STEVENS, III Black Chapman Webber & Stevens 221 Stewart Avenue, Suite 209 Medford, Oregon 97501 Attorneys for Plaintiff S. AMANDA MARSHALL United States Attorney ADRIAN L. BROWN Assistant United States Attorney 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97204-2902 GERALD J. HILL Social Security Administration Office of the General Counsel 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, Washington 98104-7075 Attorneys for Defendant 1 - OPINION AND ORDER Dockets.Justia.com MARSH, Judge Plaintiff, Shawn Lenor Owen, brings this action for judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying her application for disability insurance benefits (DIB) under Title II of the Social Security Act (the Act). See 42 U.S.C. 42 U.S.C. §§ 401-434. 405(g). § This Court has jurisdiction pursuant to For the reasons set forth below, I affirm the final decision of the Commissioner. PROCEDURAL BACKGROUND Plaintiff protectively filed an application for DIB on March 12, 2008, alleging disability beginning January 1, 2007, caused by chronic bronchitis, Tr. 148. asthma, disease (COPD), emphysema, ulcerative colitis, depression, and anxiety. Plaintiff's date last insured is June 30, Commissioner denied reconsideration. on pulmonary obstructive January 4, Plaintiff's claim 2010. The and upon initially An Administrative Law Judge (ALJ) held a hearing 2011, at represented by counsel. which Plaintiff Tr. 37-58. testified and was In addition, vocational expert Nancy Bloom was present throughout the hearing and testified. Tr. 58-69. On January 12, 2011, Plaintiff's application. the ALJ Tr. 15-25. issued a decision The Appeals Council declined review and Plaintiff timely appealed to this Court. Ill 2 - OPINION AND ORDER denying Tr. 1-3. FACTUAL BACKGROUND Born on May 13, 1964, Plaintiff was 42 years old on application date and 46 years old on the date of the hearing. 150. Tr. Plaintiff has an eleventh-grade education and past relevant work as a House Worker. Tr. 23, 152. In addition to her hearing testimony, three the Adult Function Questionnaire. then-husband, submitted Tr. Reports and a Plaintiff submitted Drug 154-61, 162-69, 213-20, and Alcohol 222-24. Use Plaintiff's Donald R. Napier, and friend Loralee L. Ball, each Third Party Function Tr. Reports. 189-96, 225-33. Although the record does not contain the opinion of any treating or examining physician, Paul Rethinger, Ph.D., reviewed Plaintiff's records and submitted a Psychiatric Review Technique, and Neal E. Berner, M.D., reviewed Plaintiff's medical records and submitted a Physical Residual Functional Capacity Assessment. Tr. 453-66, 481- 88. THE ALJ'S DISABILITY ANALYSIS The Commissioner has established a five-step process for determining whether a person is disabled. Yuckert, 482 U.S. 404.1520(<1) (4) (i)-(v), potentially dispositive. Steps One through Four. Cir. 1999). 137' 140-42 (1987); 416. 920 (a) (4) (i)-(v). 20 Each sequential Bowen v. C.F.R. step §§ is The claimant bears the burden of proof at Tackett v. Apfel, 180 F.3d 1094, 1098 (9th The burden shifts to the Commissioner at Step Five to 3 - OPINION AND ORDER show that a significant number of jobs economy that the claimant can perform. exist in See Yuckert, the national 482 U.S. at 141-42; Tackett, 180 F.3d at 1098. At Step One the ALJ determined that Plaintiff did not engage in substantial gainful activity during the period between her alleged onset date of January 1, 2007' and her date last insured on June 30, 2010. See 20 C.F.R. §§ 404.1571 et seq.; Tr. 17. At Step Two the ALJ found that Plaintiff's COPD was a severe impairment. The ALJ additionally found that Plaintiff's anxiety was a medically determinable, though non-severe, impairment. The ALJ found Plaintiff's "gastrointestinal impairment is non-medically determinable." See 20 C.F.R. §§ 404.1520(c); Tr. 17-20. At Step Three the ALJ determined Plaintiff does not have an impairment or combination of impairments that meet or medically equal any listed See impairment. 20 C.F.R. §§ 404.1520(d), 404 .1525, 404 .1526; Tr. 20-21. The ALJ found Plaintiff has the residual functional capacity (RFC) to perform sedentary work, including standing and walking approximately two hours, and sitting approximately six hours in an eight-hour workday. In addition, the ALJ found Plaintiff can lift up to 20 pounds occasionally and 10 pounds frequently, and further limited Plaintiff to occasional crawling, climbing ladders, ropes, scaffolds, kneeling, ramps, and stairs; and crouching. 4 - OPINION AND ORDER and frequent balancing, Finally, stooping, the ALJ found Plaintiff must avoid even moderate exposure chemical vapors, etc.u to "dusts, fumes, odors, [and] Tr. 21-23. At Step Four the ALJ found Plaintiff is unable to perform any of her past relevant work. See 20 C.F.R. §§ 404.1565; Tr. 23. At Step Five, however, the ALJ found jobs exist in significant numbers in the national economy that Plaintiff can perform, including Type Copy Examiner, Sack Repairer, and Stuffer. C.F.R. §§ See 20 404.1569, 404.1569a; Tr. 23-24. Accordingly, the ALJ found Plaintiff was not disabled within the meaning of the Act. ISSUES ON REVIEW Plaintiff raises three issues on appeal. First, Plaintiff argues the ALJ improperly made an adverse credibility finding as to Plaintiff's self-reported symptoms and limitations. Second, Plaintiff asserts the ALJ failed to find that her gastrointestinal impairments were a medically determinable impairment at Step Two. Finally, Plaintiff maintains the ALJ erroneously found Plaintiff's impairments, in combination, did not equal a listed impairment at Step Three. STANDARD OF REVIEW The Court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings are supported by substantial evidence in the record. 405(g); Andrews v. 1039 Shalala, 5 - OPINION AND ORDER 53 F.3d 1035, 42 u.s.c. (9th Cir. § 1995). "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Court must weigh all of the evidence, whether detracts from the Commissioner's decision. 807 F.2d 771, 772 {9th Cir. 1986). to more than one rational decision must be upheld. it Id. supports The or Martinez v. Heckler, If the evidence is susceptible interpretation, Andrews, the Commissioner's 53 F.3d at 1039-40. If the evidence supports the Commissioner's conclusion, the Commissioner must be affirmed; "the court may not substitute its judgment for that of the Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 {9th Cir. 2001) . DISCUSSION I. Plaintiff's Testimony Plaintiff testimony. In first argues deciding the ALJ whether to improperly accept rejected subjective testimony, an ALJ must perform two stages of analysis. 404.1529. § evidence First, of an her symptom 20 C.F.R. the claimant must produce objective medical underlying impairment that expected to produce the symptoms alleged. F.3d 1273, 1281-82 {9th Cir. 1996). could reasonably be Smolen v. Chater, 80 Second, absent a finding of malingering, the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, convincing rea.sons for doing so. 6 ｾ＠ OPINION AND ORDER Id. at 1281. clear, and The ALJ' s reasons for rejecting a claimant's testimony substantial evidence in the record. must be supported by See Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008). If an ALJ finds the claimant's testimony regarding her subjective symptoms unreliable, the "ALJ must make a credibility determination citing unpersuasive." Morgan v. Comm'r Soc. Sec. Admin., 599 (9th Cir. the 1999). reasons In doing so, why the testimony is 169 F.3d 595, the ALJ must identify which testimony is credible and which testimony undermines the claimant's complaints, and make "findings sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit [the] claimant's testimony." Cir. 2002). The Thomas v. Barnhart, 278 F.3d 947, 958 (9th ALJ credibility evaluation may rely upon in weighing the ordinary techniques claimant's of credibility. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). At her January 4, 2011, hearing, Plaintiff testified that she vomits "six or seven, eight times a day." Tr. 42. Plaintiff noted that each of these vomiting spells last approximately one hour. Tr. 48. As to her COPD, Plaintiff testified that she must use her nebulizer "five or six times a day." using the nebulizer, and that her incontinence. 7 - OPINION AND ORDER Plaintiff reported however, makes her "jittery" and "anxious," difficulty Tr. 49. Tr. 42. breathing sometimes causes urinary Plaintiff reported that her COPD causes her pulmonary difficulties to the extent she cannot stand in the shower "without having to Plaintiff reported, sit down however, three that or she four was times." not oxygen, though it was a possibility in the future. In addition, "problem[s] use, alcohol for 45. supplemental Tr. 56. ' Plaintiff testified that her anxiety causes her being around a lot of people." alcohol on Tr. Plaintiff testified that she Tr. 42. As to her had abstained from "three or four months," medical personnel had only discussed the issue with her once, and on the whole "[i]t's no big deal." Tr. 45-46, 54. In an undated Adult Function Report, Plaintiff reported her daily activities were to wake up and make her husband's lunch and then go back to bed because she is too tired "to do anything all day." Tr. 154. Plaintiff later noted, however, that she feeds her animals and sometimes takes them for walks. Tr. 155. reported that the microwave, she prepares cannot do house or yard work. simple foods Tr. 156. in Plaintiff but As to activities outside her home, Plaintiff reported she cannot go out alone, but shops for groceries twice per month and goes to a bar "once in a while." 157-58. Tr. Plaintiff checked that her conditions affect her abilities to lift, squat, bend, stand, reach, walk, kneel, and climb stairs. Tr. 159. Plaintiff reported that she can only walk five before requiring five minutes of rest. 8 - OPINION AND ORDER Tr. 159. feet In a May, 2008, Adult Function Report, Plaintiff reported that her day consists of waking up and eating so she can take her pills before laying down again while her medication takes effect. 162. Tr. Plaintiff reported that on a daily basis she does "what [she] can" around her home. Tr. 162. Plaintiff reported that she is capable of cleaning and doing laundry around the house, but only approximately once per week for about an hour on account of her Tr. COPD. Plaintiff wrote 164-65. that she was capable shopping "once a week," but that it took "a long time." Plaintiff, however, of Tr. 165. reported that she did not go anywhere on a regular basis, and her primary social activities were sitting and talking. reported Tr. 160. that she As to her functional capabilities, Plaintiff could lift five or six pounds, experiences shortness of breath during a wide range of physical exertion, and could only walk one-quarter of a mile before requiring five-to-ten minutes of rest. Tr. 167. Finally, Plaintiff noted that she has "ulcerative colitis" which makes her "sick to [her] stomach 24-7." Tr. 169. In a December, 2008, Adult Function Report, Plaintiff described daily activities and limitations similar to those in her May, 2008, Function Report. Throughout most of her daily activities, Plaintiff reported having to pause to catch her breath. Tr. 214-15. Plaintiff 9 - OPINION AND ORDER reported that her ability to walk had worsened, as she could only walk 100 feet before requiring 5 to 10 minutes of rest. Tr. 218. In her Drug and Alcohol Use Questionnaire dated January 2, 2009, Plaintiff reported that she drinks two-to-three beers once per month and Plaintiff had done noted that so for her the past two years. is not affected behavior Tr. by 222. her consumption of alcohol and that she has never been in a treatment program for alcohol abuse. The ALJ rejected Tr. 223. Plaintiff's subjective reports because Plaintiff alleged medical conditions and symptoms that were not supported by the medical record, made several inconsistent statements about her alcohol use, demonstrated noncompliance with medical treatment inconsistent and statements symptoms and limitations. misused medical throughout Tr. the 18-19, resources, record 22-23. I and regarding made her conclude these reasons, taken together, constitute clear and convincing reasons to reject Plaintiff's testimony. A. Allegations Unsupported by Medical Record The ALJ's finding that Plaintiff made allegations of medical limitations unsupported by the contemporaneous treatment record is amply supported by the administrative record. As the ALJ noted, Plaintiff's allegations of extensive, persistent vomiting are not supported by medical findings. Although the record contains myriad presentations to the emergency room with complaints of persistent 10 - OPINION AND ORDER vomiting, the ALJ reasonably noted that Plaintiff's complaints of chronic, uncontrollable vomiting were never corroborated and at times were undercut by objective medical evidence. Notably, on March 19, 2009, one of Plaintiff's primary care providers noted her "endoscopy did not show stigmata of chronic vomiting." Tr. 679. Considering Plaintiff's allegations of extensive vomiting, this alone is compelling evidence to reject Plaintiff's testimony. Plaintiff testified that her vomiting was one of the reasons she left her last job in August, however, 20, on March 2008, 2007. Plaintiff Tr. 40-41. showed "no bleeding or significant vomiting" in connection to history of Plaintiff colitis. ulcerative presented to the Tr. emergency 341. On room with Notably, evidence ｨｾｲ＠ June of reported 17, 2009, complaints of uncontrollable vomiting, but stopped vomiting once she arrived in the emergency room. Tr. 605. visits to the emergency room, Indeed, throughout Plaintiff's many there are few notes of Plaintiff continuing to vomit while in the hospital. On November 13, 2009, Plaintiff wretching was noted to be "occasionally nonproductive and could be interrupted by conversation." which was Tr. 516. On November 21, 2009, Josh Cook, D.O., noted that Plaintiff had no improvement of her symptoms with medication "until her ride came to take her home," at which point she had "complete resolution of symptoms." Tr. 507. Otherwise, Plaintiff's physicians have noted that imaging of Plaintiff's abdomen and bowels was unremarkable. 11 - OPINION AND ORDER Tr. 675, 677. Accordingly, the ALJ reasonably found that Plaintiff's subjective reports of persistent and uncontrollable vomiting were unsupported by the record. The ALJ also correctly noted that Plaintiff did not report the urinary incontinence she testified was a result of her breathing difficulties to any physician. As the ALJ also noted, Plaintiff repeatedly reported to the ALJ and medical providers that she has a history of ulcerative colitis, but no objective evidence supported this allegation and Plaintiff's primary care provider found this report "somewhat questionable." Thus, I conclude Plaintiff's the subjective ALJ's citation allegations were ｾＧ＠ of Tr. 4 9, 67 5, 677. instances in unsupported which and even contradicted by the medical record is a compelling reason to reject Plaintiff's testimony. B. Inconsistent Statements Regarding Alcohbl Use The ALJ cited Plaintiff's inconsistent statements concerning her alcohol use as a reason to reject her testimony. 1 record is replete with inconsistent statements Indeed, the from Plaintiff Plaintiff briefly argues the ALJ improperly cited this reason without conducting a full drug and alcohol analysis. The drug and alcohol analysis is only necessary, however, when the ALJ finds drug and alcohol use is a "'factor material to the Commissioner's determination that the individual is disabled.'" Parra v. Astrue, 481 F.3d 742, 747 (9th Cir. 2007) (quoting 42 U.S.C. § 423(d)(2)(C)). The ALJ did not make such a finding in this case. Instead, the ALJ properly cited Plaintiff's inconsistent statements concerning alcohol use as a reason to reject Plaintiff's testimony. 12 - OPINION AND ORDER concerning her alcohol use. As noted, Plaintiff reported at the hearing that she had abstained from alcohol for between three and four months and that alcohol abuse had never been a problem for her. Tr. 45-46, 54. In addition, in her January 2, 2009, Drug and Alcohol Use Questionnaire, Plaintiff reported that she drinks "2 or 3 [b] eers" once per month and had been following this usage pattern for "approximately two years." Tr. 222. On March 14, 2008, Plaintiff reported that she "drinks a few beers a day," which her medical provider found abnormal liver function findings. Tr. 344. ｳｩｧｮｦｾ｡ｴ＠ to her On November 14, 2008, Plaintiff reported during an endoscopy and colonoscopy that she drinks two beers per day, but the physician noted Plaintiff "was quite difficult to sedate. This suggests that her history of two alcoholic beverages daily may be an underestimate, and there may be a more significant problem with alcohol dependence." Tr. 490. On March 19, 2009, Plaintiff reported to Leslie O'Meara, M.D., that she consumes "1-2 beers per week," but Dr. O'Meara noted that "[h] er exam and notes around the endoscopy suggest otherwise." 679. On June 16, 2009, Plaintiff reported to Tr. emergency-room personnel that she consumes "at least 2 drinks per day." Tr. 600. Around this time, emergency medical services noted that Plaintiff had been "seen in a local bar on many occasions" and "[t] ransported by EMS [greater than] 30 times." Tr. 576. On August 20, Plaintiff reported "[o]ccasional use of alcohol." 13 - OPINION AND ORDER Tr. 2009, 579. On October 13, On 2009, November occasionally," Plaintiff "denie[d] use of alcohol." 13, but 2009, reported Plaintiff after being confronted by Tr. 543. "[s] he Josh drinks Cook, D.O., Plaintiff admitted "recent and more frequent alcohol use." 518. Dr. Cook found Plaintiff's "alcohol abuse . Tr. . to be the most likely causative factor for this cyclic vomiting and abdominal pain syndrome." Tr. 518. Nonetheless, Plaintiff was back in the emergency room on November 21, 2009, where she "repeatedly lied" to Dr. Cook and a nurse "about alcohol use." Tr. 507. Dr. Cook noted that "[i]t is apparent there is significant alcohol abuse." Tr. 507. Three weeks later, on December 9, 2009, Plaintiff reported to Mark Press, FNP, her primary care provider, that she drinks "2 to 3 beers per week." Tr. 676. On December 23, 2009, Plaintiff told Mr. Press that she only consumes one beer per week. Tr. 675. On January 21, 2010, however, Plaintiff reported "she has not had any alcohol but later in the visit [told Mr. Press] that she had two beers yesterday to try and help with her rib pain." Tr. 674. Mr. Press noted "[h]er somewhat inconsistent reporting of her alcohol use and her recent fall is suspicious for continued alcohol use." Tr. 674. On March 24, 2010, the most recent full medical record, Plaintiff told Mr. day." from Tr. 713. Mr. Press Press "[s]he drinks about 2 beers every other The medical record, however, also contains a note dated 14 - OPINION ANDORDER December 29, 2010, one week before the hearing, today. simply stating that "[Plaintiff] had an [appointment] I am told that she has been [alcohol] free [for] 3 months." Tr. 715. There is ample evidence to support the ALJ's conclusion that Plaintiff made inconsistent statements regarding her alcohol use. While also reflecting negatively on Plaintiff's credibility in general, this observation carries additional weight in light of multiple medical providers connecting Plaintiff's alcohol use to her physical inconsistent conditions: statements The ALJ's regarding citation alcohol use of is Plaintiff's a compelling reason to reject Plaintiff's testimony. C. Noncompliance Resources with Treatment and Misuse of Medical The ALJ also rejected Plaintiff's testimony because Plaintiff demonstrated noncompliance with medical treatment, failed to seek ongoing treatment for her misused medical resources. allegedly Tr. 18-19. severe COPD symptoms, and The ALJ appropriately noted that Plaintiff sought relatively little medical treatment for her COPD. Although there is no question that Plaintiff's COPD is "severe," and the ALJ accordingly ascribed significant functional limitations on account of that condition, the ALJ also reasonably noted that Plaintiff's COPD and use of her nebulizer were typically not a primary focus of Plaintiff's many medical presentations. 22. Tr. The ALJ could reasonably find this suggested the functional 15 - OPINION AND ORDER limitations associated with Plaintiff's COPD symptoms were not as severe as alleged. Even more convincing is the ALJ's citation of noncompliance with medical treatment and misuse of medical resources. As the ALJ noted, Plaintiff departed a December 9, 2009, appointment with Mr. Press before its conclusion. Tr. 676. On November 13, 2009, Dr. Cook extensively discussed Plaintiff's noncompliance with medical treatment and misuse of medical resources: The patient presents with cyclic vomiting and cyclic abdominal pain and has been . seen multiple times here previous. There is an adrenal adenoma that appears to have been stable on CT scanning of this year. The abdomen is benign. The vomiting was resolved with sublingual Zofran, intramuscular Phenergan and Inapsine. The patient refused Phenergan suppositories and states that oral medications do not work. There appears to be noncompliance of the patient's taking of medications and a misperception of the efficacy of oral versus IV medications or suppositories leading to medication noncompliance. The case was discussed with Mark Press at the Mosaic Clinic in hopes that a patient care plan could be developed to improve the outpatient compliance and to better coordinate the emergency department management with that of the Mosaic Clinic. Specifically, the patient requested narcotics or Dilaudid and this would have no role in a case of a recurrent abdominal pain or cyclic vomiting patient, although has been frequently used to expedite disposition in the emergency department. At this time, and in light of recent colonoscopy, previous GI consult and other previous studies, there appears to be no other serious . . or surgical cause of abdominal pain at this time. Tr. 517 (errors in original). Dr. Cook detailed Plaintiff's misuse of the medical system on November 21, 2009: 16 - OPINION AND ORDER This patient returns for the 10'" time in the last 2 months to the emergency department for recurrent abdominal pain and vomiting. The patient had told Tammy the registration personnel that she calls the ambulance because she gets into the emergency department quicker. She has her boyfriend usually bring her to the fire department to be then transported so that she can get into the emergency department more quickly. The patient then repeatedly lied to myself and to Holly, the nurse, about alcohol use. It is apparent there is significant alcohol abuse. This is most likely to be causing a significant component of this cyclic vomiting and abdominal pain the patient presents with. The emergency department workup at this time was grossly unremarkable other than a mildly elevated white blood cell count. She had no improvement with Inapsine and Phenergan until her ride came to take her home. She then had complete resolution of symptoms. In the presence of nurse, Holly, I discussed with the patient the need for treatment for alcohol abuse as well as the very clear abuse of the EMS system as well as the emergency department. I respectively discussed with the patient appropriate use of emergency services and the emergency department. Tr. 507 (errors in original). In addition, the record is replete with instances of Plaintiff reporting to the emergency department with subjective reports of symptoms but no identifiable etiology. The ALJ's rejection of Plaintiff's testimony on the basis of noncompliance with medical treatment, abuse of the m.edical system, and failure supported by to seek ongoing substantial treatment record of her evidence. COPD, This then, provides was an additional convincing reason to reject Plaintiff's testimony. D. Inconsistent Statements Concerning Symptoms Finally, the ALJ noted Plaintiff made other inconsistent statements about her functional limitations and symptoms. As the ALJ noted, Plaintiff' report that she vomits a minimum of six-to- 17 - OPINION AND ORDER eight times per day is inconsistent with her reports to treatment providers of fewer Moreover, contrary vomiting to Tr. spells. Plaintiff's report 42, of 675, very 676, 713. significant walking limitations, Plaintiff told medical providers on June 16, 2009, that she "walks daily." dated October historian." 13, Tr. 2009, 543. Tr. 637. Plaintiff Accordingly, Finally, in a chart note was noted to be a "poor the ALJ properly discussed inconsistent statements concerning Plaintiff's symptoms as a reason to discredit her testimony. In sum, I conclude that the above reasons readily amount to clear and convincing reasons, supported by ample record evidence, to reject Plaintiff's testimony. The ALJ properly made an adverse credibility determination. II. Step Two Plaintiff next argues the ALJ erred in failing to include a gastrointestinal abdominal pain sequential claimant at Step inquiry, has impairments." 1996) . impairment concerning Plaintiff's vomiting and a '11 \VO. the "At step Commissioner medically severe Smolen v. Chat er, two of the determines impairment or five-step whether the combination of 80 F. 3d 1273, 1289-90 (9th Cir. An impairment is "severe" for Step Two purposes if it, in combination with other claimant's] physical activities." 20 C.F.R. 18 - OPINION AND. ORDER impairments, or § mental "significantly limits ability 404.1520(c). to do basic [the work See also Smolen, 80 F.3d at 1290. A claimant can only establish a medically determinable impairment at Step Two "if the record includes signs - the results of 'medically acceptable clinical diagnostic techniques,' such as tests - as well as symptoms, i.e., [the claimant's] representations regarding his impairment." (9th Cir. 2005). screening Ukolov v. Barnhart, 420 F.3d 1002, 1005 Ultimately, however, Step Two "is a de minimis device to dispose of groundless claims," and an impairment or combination of impairments will only be found "not severe" if "the evidence establishes a slight abnormality that has 'no more work.'" than a Smolen, F. 2d 303, 306 condition at minimal effect 80 F.3d at 1290 (9th Cir. Step Two 1988)). is on an individual's (quoting Yuckert v. ability to Bowen, 841 An error in failing to list a harmless if the ALJ considers the limitations posed by the allegedly omitted condition in formulating the RFC. Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). The ALJ refused to include any gastrointestinal impairment at Step Two because "per all the objective evidence, an etiology has not been determined questionable." and Tr. 18. her self-report of symptoms [is] Notably, Plaintiff does not argue the ALJ should have included any particular gastrointestinal impairment at Step Two, but instead that the ALJ should have included some impairment concerning her gastrointestinal complaints at Step Two. The results of "medically acceptable clinical diagnostic techniques" were consistently benign, making the etiology of her 19 - OPINION AND ORDER alleged vomiting unclear. Tr. 675; see Ukolov, 420 F.3d at 1005. In addition, as the ALJ noted, an endoscopy "did not show stigmata of chronic emergency evidence vomiting." department of vomiting emergency department Tr. 679. Moreover, presentations, continuing and, despite repeated there little objective through in any event, is presentations in the the ALJ appropriately discounted Plaintiff's subjective reports as to the frequency and severity of her alleged gastrointestinal limitations. I conclude the ALJ permissibly contain sufficient found that the Accordingly, record did not signs and symptoms to establish Plaintiff's gastrointestinal complaints as a medically determinable impairment at Step Two. III. Step Three Finally, Plaintiff argues the ALJ erred in finding that Plaintiff's medically determinable impairments did not equal any listing. "'[F]or a claimant to qualify for benefits by showing that [her] unlisted impairment, or combination of impairments, is 'equivalent' to a listed impairment, [she] must present medical findings equal in severity to all the criteria for the one most similar listed impairment.'" Kennedy v. Colvin, 738 F.3d 1172, 1176 (9th Cir. 2013) (quoting Sullivan v. Zebley, 493 U.S. 521, 531 (1990)). "'A claimant cannot qualify for benefits under the 'equivalence' step by showing that the overall functional impact of [her] unlisted impairment 20 - OPINION AND ORDER or combination of impairments is as severe as that of a listed impairment."' U.S. at 531). evidence in Thus, the the claimant must record, that Id. (quoting Zebley, 4 91 show, Plaintiff's based on medical impairments, combination, equal each criterion of the relevant listing. in Id. Plaintiff asserts her combination of medically determinable impairments equals Listing .3. 02, which provides the listings for those with "[c]hronic pulmonary insufficiency. ¢ Subpt. P, App. 1 at 3.02. 20 C.F.R. Pt. 404, For a person of Plaintiff's size, the listing requires that the claimant have a forced expiratory volume (FEV 1 ) of 1.15 or less. Id. The only such test in the record indicates that Plaintiff had an FEV 1 of 1.16. Tr. 470. Plaintiff points to no evidence in the record - and the Court has located none - demonstrating that Plaintiff's impairments, taken as a whole, cause Plaintiff to have the equivalent of an FEV 1 of 1.15 or below. Accordingly, the ALJ appropriately found that Plaintiff's combination of medically determinable impairments did not equal any listing. The ALJ did not err at Step Three. Ill Ill Ill Ill Ill Ill Ill 21 - OPINION AND ORDER CONCLUSION For the foregoing reasons, the Commissioner's decision AFFIRMED. IT IS SO ORDERED. DATED this Zl? day of October, 2014. Malcolm F. Marsh United States District Judge 22 - OPINION AND ORDER is

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