Skimming v Commissioner of Social Security, No. 2:2018cv00082 - Document 16 (E.D. Wash. 2019)

Court Description: ORDER DENYING 12 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING 13 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Case is closed. Signed by Judge Rosanna Malouf Peterson. (AY, Case Administrator)

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Skimming v Commissioner of Social Security Doc. 16 1 2 3 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 4 Mar 26, 2019 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 MONICA J. S., NO: 2:18-CV-82-FVS 8 9 10 Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 Defendant. 12 13 BEFORE THE COURT are the parties’ cross-motions for summary judgment. 14 ECF Nos. 12, 13. This matter was submitted for consideration without oral 15 argument. Plaintiff is represented by attorney Cory J. Brandt. Defendant is 16 represented by Special Assistant United States Attorney Jeffrey R. McClain. The 17 Court, having reviewed the administrative record and the parties’ briefing, is fully 18 informed. For the reasons discussed below, Plaintiff’s Motion, ECF No. 12, is 19 denied and Defendant’s Motion, ECF No. 13, is granted. 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 1 Dockets.Justia.com 1 JURISDICTION Plaintiff Monica J. S.1 (Plaintiff), filed for disability insurance benefits (DIB) 2 3 and supplemental security income (SSI) on August 4, 2014, alleging an onset date of 4 January 10, 2011. Tr. 212-15, 274. Benefits were denied initially, Tr. 138-40, and 5 upon reconsideration, Tr. 145-46, 148-49. Plaintiff appeared at a hearing before an 6 administrative law judge (ALJ) on December 1, 2016. Tr. 44-74. On December 27, 7 2016, the ALJ issued an unfavorable decision, Tr. 24-36, and on January 17, 2018, 8 the Appeals Council denied review. Tr. 1-5. The matter is now before this Court 9 pursuant to 42 U.S.C. § 405(g); 1383(c)(3). 10 BACKGROUND 11 The facts of the case are set forth in the administrative hearing and transcripts, 12 the ALJ’s decision, and the briefs of Plaintiff and the Commissioner, and are 13 therefore only summarized here. 14 Plaintiff was born in 1982 and was 34 years old at the time of the hearing. Tr. 15 212. She has a high school diploma. Tr. 70. She has work experience as a 16 caregiver for adults and children, as a meat counter clerk, and in retail, 17 telemarketing, and electronics manufacturing. Tr. 65-70. She alleges she cannot 18 19 20 21 1 In the interest of protecting Plaintiff’s privacy, the Court will use Plaintiff’s first name and last initial, and, subsequently, Plaintiff’s first name only, throughout this decision. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 2 1 work due to pain while walking, standing, lifting, bending, and going up and down 2 stairs. Tr. 258. Because of pain, she becomes overwhelmed and tired easily. Tr. 3 258. 4 Plaintiff testified that she has pain and numbness in her left hip. Tr. 57. She 5 sometimes loses her balance because of the lack of sensation. Tr. 58. She has a hard 6 time walking over uneven surfaces and curbs. Tr. 58. She uses a walker and has a 7 disabled parking permit. Tr. 58-59. She testified she can walk only short distances 8 because walking makes her tired and causes pain. Tr. 59. Sitting also causes pain. 9 Tr. 59-60. She lies down at least four times a day for 20 minutes at a time. Tr. 60. 10 11 She has a caregiver who helps with lifting and housework twice a week. Tr. 60. Plaintiff testified her memory has been getting worse. Tr. 61. She got lost 12 driving to her mother’s house which she visits frequently. Tr. 62. She cannot focus. 13 Tr. 62. 14 15 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 16 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 17 limited; the Commissioner’s decision will be disturbed “only if it is not supported by 18 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 19 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a reasonable 20 mind might accept as adequate to support a conclusion.” Id. at 1159 (quotation and 21 citation omitted). Stated differently, substantial evidence equates to “more than a ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 3 1 mere scintilla[,] but less than a preponderance.” Id. (quotation and citation omitted). 2 In determining whether the standard has been satisfied, a reviewing court must 3 consider the entire record as a whole rather than searching for supporting evidence in 4 isolation. Id. 5 In reviewing a denial of benefits, a district court may not substitute its 6 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 1156 7 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 8 rational interpretation, [the court] must uphold the ALJ’s findings if they are 9 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 10 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an ALJ’s 11 decision on account of an error that is harmless.” Id. An error is harmless “where it 12 is inconsequential to the [ALJ’s] ultimate nondisability determination.” Id. at 1115 13 (quotation and citation omitted). The party appealing the ALJ’s decision generally 14 bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 U.S. 15 396, 409-10 (2009). 16 FIVE-STEP EVALUATION PROCESS 17 A claimant must satisfy two conditions to be considered “disabled” within the 18 meaning of the Social Security Act. First, the claimant must be “unable to engage in 19 any substantial gainful activity by reason of any medically determinable physical or 20 mental impairment which can be expected to result in death or which has lasted or 21 can be expected to last for a continuous period of not less than twelve months.” 42 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 4 1 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s impairment must 2 be “of such severity that he is not only unable to do his previous work[,] but cannot, 3 considering his age, education, and work experience, engage in any other kind of 4 substantial gainful work which exists in the national economy.” 42 U.S.C. §§ 5 423(d)(2)(A), 1382c(a)(3)(B). 6 The Commissioner has established a five-step sequential analysis to determine 7 whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 404.1520(a)(4)(i)- 8 (v), 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s 9 work activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is 10 engaged in “substantial gainful activity,” the Commissioner must find that the 11 claimant is not disabled. 20 C.F.R. §§ 404.1520(b), 416.920(b). 12 If the claimant is not engaged in substantial gainful activity, the analysis 13 proceeds to step two. At this step, the Commissioner considers the severity of the 14 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 15 claimant suffers from “any impairment or combination of impairments which 16 significantly limits [his or her] physical or mental ability to do basic work 17 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 18 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 19 however, the Commissioner must find that the claimant is not disabled. 20 C.F.R. 20 §§ 404.1520(c), 416.920(c). 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 5 1 At step three, the Commissioner compares the claimant’s impairment to 2 severe impairments recognized by the Commissioner to be so severe as to preclude a 3 person from engaging in substantial gainful activity. 20 C.F.R. §§ 4 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more severe 5 than one of the enumerated impairments, the Commissioner must find the claimant 6 disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d). 7 If the severity of the claimant’s impairment does not meet or exceed the 8 severity of the enumerated impairments, the Commissioner must pause to assess the 9 claimant’s “residual functional capacity.” Residual functional capacity (RFC), 10 defined generally as the claimant’s ability to perform physical and mental work 11 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ 12 404.1545(a)(1), 416.945(a)(1), is relevant to both the fourth and fifth steps of the 13 analysis. 14 At step four, the Commissioner considers whether, in view of the claimant’s 15 RFC, the claimant is capable of performing work that he or she has performed in the 16 past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the 17 claimant is capable of performing past relevant work, the Commissioner must find 18 that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the 19 claimant is incapable of performing such work, the analysis proceeds to step five. 20 21 At step five, the Commissioner should conclude whether, in view of the claimant’s RFC, the claimant is capable of performing other work in the national ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 6 1 economy. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this 2 determination, the Commissioner must also consider vocational factors such as the 3 claimant’s age, education and past work experience. 20 C.F.R. §§ 4 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant is capable of adjusting to other 5 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 6 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other 7 work, analysis concludes with a finding that the claimant is disabled and is therefore 8 entitled to benefits. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 9 The claimant bears the burden of proof at steps one through four above. 10 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 11 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 12 capable of performing other work; and (2) such work “exists in significant numbers 13 in the national economy.” 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2); Beltran v. 14 Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 15 ALJ’S FINDINGS 16 At step one, the ALJ found Plaintiff did not engage in substantial gainful 17 activity since January 10, 2011, the alleged onset date. Tr. 26. At step two, the ALJ 18 found that Plaintiff has the following severe impairments: gestational diabetes 19 mellitus, obesity, major depressive disorder vs post-partum depression, and anxiety. 20 Tr. 26. At step three, the ALJ found that Plaintiff does not have an impairment or 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 7 1 combination of impairments that meets or medically equals the severity of a listed 2 impairment. Tr. 27. 3 4 5 6 7 8 9 The ALJ then found that Plaintiff has the residual functional capacity to perform sedentary work with the following additional limitations: [T]he claimant can perform occasional postural activities, but never climb ladders, rope, or scaffolds. The claimant should avoid concentrated exposure to industrial vibrations and hazards. The claimant is able to understand, remember, and carry out simple, routine, repetitive tasks and instructions. The claimant is able to maintain attention and concentration on simple routine tasks for 2 hour intervals between regularly scheduled breaks for an 8 hour work day/40 hour work week. The claimant can have only occasional changes in a work setting/routine, and no fast-paced production rate (defined as assembly line type work). 10 Tr. 29. 11 At step four, the ALJ found that Plaintiff is able to perform any past relevant 12 work as a telemarketer. Tr. 35. Therefore, at step five, the ALJ concluded that 13 Plaintiff has not been under a disability, as defined in the Social Security Act, from 14 January 10, 2011, through the date of the decision. Tr. 35. 15 ISSUES 16 Plaintiff seeks judicial review of the Commissioner’s final decision denying 17 disability income benefits under Title II and supplemental security income under 18 Title XVI of the Social Security Act. ECF No. 12. Plaintiff raises the following 19 issues for review: 20 1. Whether the ALJ properly identified all of Plaintiff’s severe 21 impairments; ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 8 1 2. 2 and 3 3. 4 Whether the ALJ properly considered the medical opinion evidence; Whether the ALJ properly evaluated Plaintiff’s symptom claims. ECF No. 12 at 10-19. 5 6 DISCUSSION A. Severe Impairments 7 Plaintiff contends the ALJ failed to properly identify all of her severe 8 impairments at step two. ECF No. 12 at 11. At step two of the sequential process, 9 the ALJ must determine whether Plaintiff suffers from a “severe” impairment, i.e., 10 one that significantly limits his or her physical or mental ability to do basic work 11 activities. 20 C.F.R.§§ 404.1520(c), 416.920(c). To satisfy step two’s requirement 12 of a severe impairment, the claimant must prove the existence of a physical or 13 mental impairment by providing medical evidence consisting of signs, symptoms, 14 and laboratory findings; the claimant’s own statement of symptoms alone will not 15 suffice. 20 C.F.R. §§ 404.1508, 416.908 (1991). “Step two is merely a threshold 16 determination meant to screen out weak claims. It is not meant to identify the 17 impairments that should be taken into account when determining the RFC.” Buck 18 v. Berryhill, 869 F.3d 1040, 1048-49 (9th Cir. 2017) (citation omitted). The fact 19 that a medically determinable condition exists does not automatically mean the 20 symptoms are “severe” or “disabling” as defined by the Social Security 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 9 1 regulations. See e.g. Edlund, 253 F.3d at 1159-60; Fair v. Bowen, 885 F.2d 597, 2 603 (9th Cir. 1989); Key v. Heckler, 754 F.2d 1545, 1549050 (9th Cir. 1985). 3 The ALJ found Plaintiff has the severe impairments of gestational diabetes, 4 obesity, depression, and anxiety. Tr. 26. The ALJ also noted Plaintiff had chronic 5 lower back pain symptoms but found the treatment notes reflect no objective 6 findings to support any limitations due to back issues. Tr. 27. Plaintiff contends the 7 ALJ should have also identified her hip condition, femoral acetabular impingement, 8 as a severe impairment. ECF No. 12 at 11. Plaintiff notes various symptoms and 9 observes that reviewing physicians Norman Staley, M.D., and Wayne Hurley, M.D., 10 both opined her primary severe impairment is “dysfunction of a major joint.” ECF 11 No. 12 at 12 (citing Tr. 96, 111). Indeed, Dr. Staley and Dr. Hurley acknowledged 12 Plaintiff’s physical limitations are due to femoral acetabular impingement of 13 bilateral hips, lumbago, and obesity. Tr. 84, 114-15. 14 Even if the ALJ should have included Plaintiff’s hip condition as a severe 15 impairment, any error is harmless. If the ALJ erred by not finding an impairment 16 severe at step two, reversal may not be required if the step is resolved in the 17 claimant’s favor. See Buck, 869 F.3d at 1048-49; Stout v. Comm’r of Soc. Sec. 18 Admin., 454 F.3d 1050, 1055 (9th Cir. 2006); Burch v. Barnhart, 400 F.3d 676, 682 19 (9th Cir. 2005). Here, the ALJ resolved step two in Plaintiff’s favor by finding there 20 are severe impairments, continuing the sequential evaluation, and considering the 21 symptoms cited by Plaintiff. Tr. 30-34. Furthermore, the ALJ credited the opinions ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 10 1 of Dr. Staley and Dr. Hurley and included all of limitations they assessed in the RFC 2 finding.2 Tr. 29, 83-85, 113-15. Plaintiff has not identified any additional 3 limitations supported by the record due to her hip condition, and therefore the 4 outcome would be the same even if femoral acetabular impingement is credited as a 5 severe impairment. Thus, any error at step two regarding Plaintiff’s hip problem is 6 harmless. Stout, 454 F.3d at 1056; Burch, 400 F.3d at 682; Curry v. Sullivan, 925 7 F.2d 1127, 1131 (9th Cir. 1990) (where corrected error does not change the 8 outcome, the error is harmless). 9 B. Medical Opinion Evidence 10 Plaintiff contends the ALJ failed to properly consider the opinion of 11 examining physician Kevin Weeks, D.O. ECF No. 12 at 13-14. There are three 12 types of physicians: “(1) those who treat the claimant (treating physicians); (2) those 13 14 2 15 frequent lifting and carrying of 10 pounds; standing or walking for two hours and 16 sitting for six hours in an eight-hour day, with postural limitations of occasional 17 climbing ramps or stairs, balancing, stooping, kneeling, crouching, and crawling, 18 but never climbing ladders, ropes, or scaffolds, and must avoid concentrated 19 exposure to hazards. Tr. 83-85, 113-15. These limitations are consistent with RFC 20 finding of sedentary work with the same postural limitations. Tr. 29; see 20 C.F.R. 21 §§ 404.1567, 416.967. Dr. Staley and Dr. Hurley both opined Plaintiff is limited to occasional and ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 11 1 who examine but do not treat the claimant (examining physicians); and (3) those 2 who neither examine nor treat the claimant but who review the claimant’s file 3 (nonexamining or reviewing physicians).” Holohan v. Massanari, 246 F.3d 1195, 4 1201-02 (9th Cir. 2001) (brackets omitted). “Generally, a treating physician’s 5 opinion carries more weight than an examining physician’s, and an examining 6 physician’s opinion carries more weight than a reviewing physician’s.” Id. “In 7 addition, the regulations give more weight to opinions that are explained than to 8 those that are not, and to the opinions of specialists concerning matters relating to 9 their specialty over that of nonspecialists.” Id. (citations omitted). 10 If a treating or examining physician’s opinion is uncontradicted, an ALJ may 11 reject it only by offering “clear and convincing reasons that are supported by 12 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 13 “However, the ALJ need not accept the opinion of any physician, including a 14 treating physician, if that opinion is brief, conclusory and inadequately supported by 15 clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 16 (internal quotation marks and brackets omitted). “If a treating or examining doctor’s 17 opinion is contradicted by another doctor’s opinion, an ALJ may only reject it by 18 providing specific and legitimate reasons that are supported by substantial 19 evidence.” Bayliss, 427 F.3d at 1216 (citing Lester v. Chater, 81 F.3d 821, 830-31 20 (9th Cir. 1995). 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 12 1 Dr. Weeks examined Plaintiff and prepared a report in December 2014. Tr. 2 470-75. Dr. Weeks diagnosed chronic hip pain due to femoral acetabular 3 impingement bilaterally and lumbago with preserved range of motion. Tr. 475. He 4 opined Plaintiff could stand or walk for two hours in an eight-hour workday; sit for 5 four to six hours in an eight-hour workday; needs a walker and cane for balance and 6 pain; can lift and carry 10 pounds occasionally and frequently; cannot climb, 7 balance, stoop, kneel, crawl or crouch due to impingement of her hips; and must 8 avoid working around heights and heavy machinery. Tr. 475. 9 The ALJ gave significant weight to Dr. Weeks’ opinion that Plaintiff is 10 limited to sedentary work. Tr. 34. However, the ALJ gave no weight to any 11 limitations resulting in a restriction to less than sedentary work 3. Tr. 34. Thus, the 12 ALJ gave no weight to the postural limitations assessed by Dr. Weeks. Tr. 13 14 Because Dr. Week’s opinion regarding postural limitations was contradicted by the opinion of the reviewing physicians, Wayne Hurley, M.D., Tr. 83-85, and 15 16 17 18 19 20 21 “Sedentary work involves lifting no more than 10 pounds at a time and 3 occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. §§ 404.1567, 416.967. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 13 1 Norman Staley, M.D., Tr. 113-15, the ALJ was required to provide specific and 2 legitimate reasons for rejecting that portion of Dr. Weeks’ opinion. 4 Bayliss, 427 3 F.3d at 1216. 4 The ALJ rejected the postural limitations assessed by Dr. Weeks because 5 “there is absolutely no basis . . . to totally preclude all postural activities.” Tr. 34. 6 An ALJ may discredit treating physicians’ opinions that are unsupported by the 7 record as a whole or by objective medical findings. Batson v. Comm’r of Soc. Sec. 8 Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). The ALJ observed that Plaintiff has 9 three young children ages three, one, and a newborn, and the record reflects that 10 Plaintiff cares for them daily. Tr. 34, 310 (“full time mom”), 451 (“full time 11 4 12 13 14 15 16 17 18 19 20 Plaintiff contends on reply that “a non-examining doctor’s opinion cannot be used to reject the opinion of an examining doctor because it does not qualify as substantial evidence on its own.” ECF No. 14 at 4 (citing Lester, 81 F.3d at 831). Plaintiff misconstrues Lester, which actually says, “[i]n the absence of record evidence to support it, the nonexamining medical advisor’s testimony does not by itself constitute substantial evidence that warrants a rejection of either the treating doctor’s or the examining psychologist’s opinion.” Id. at 832 (citations omitted). In this case, the ALJ cited “record evidence” in addition to the nonexamining opinions in giving little weight given to a portion of Dr. Weeks’ opinion. Tr. 34. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 14 1 mom”), 466 (arrives for appointment “pushing stroller with young child”), 479 2 (“spends most of her time during the day caring for her two young children), 662 3 (arrives for appointment with two young children and is pregnant; “she is going to 4 stop work on 3/26/16 and would like a note for her employer” and “would like to 5 be re-hired at a later date”). 6 The ALJ noted that being a full-time mother requires Plaintiff to dress, feed, 7 and bathe her children, change diapers, transfer one or more children in and out of 8 a crib, lift one or more children in and out of a high chair, and hold her children. 9 Tr. 34. An ALJ may discount a medical source opinion to the extent it conflicts 10 with the claimant’s daily activities. Morgan v. Comm’r of Soc. Sec. Admin., 169 11 F.3d 595, 601-02 (9th Cir. 1999). The ALJ reasonably inferred that “these daily 12 child care activities require at a minimum occasional bending, stooping, crouching, 13 reaching and occasional lifting of 10 pounds or more.” Tr. 34. The ALJ’s 14 inference is reasonable and supported by the record and this is a specific, 15 legitimate reason for giving no weight to the postural limitations assessed by Dr. 16 Weeks. 17 Plaintiff notes the record reflects “that during a typical day she helps her 18 children get ready for school, plays with them on the floor and helps the children 19 while sitting.” ECF No. 12 at 13 (citing Tr. 472). She reported “trouble carrying 20 her children” and “difficulty taking her kids to the park.” Tr. 656. Neither of these 21 records support Dr. Weeks’ finding that Plaintiff can perform zero balancing, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 15 1 stooping, kneeling, crawling, climbing, or crouching due to hip pain. Helping 2 young children get ready for school by nature requires some postural activity. 3 Similarly, playing on the floor requires stooping or crouching. Dr. Weeks did not 4 find Plaintiff cannot carry and the ALJ included a limit on carrying in the RFC. 5 Tr. 29, 475. “[D]ifficulty taking her kids to a park” does not implicate any specific 6 functional limitation. Tr. 656. The ALJ acknowledged Plaintiff may have 7 difficulty with some postural activities and limited postural activities to occasional 8 in the RFC, with an additional limitation to never climb ladders, rope, or scaffolds. 9 Tr. 29. 10 Furthermore, even if the ALJ erred in rejecting the postural limitations 11 assessed by Dr. Weeks (and the Court does not so conclude), any error would be 12 harmless. The erroneous omission of postural limitations from an RFC for 13 sedentary work is harmless “since sedentary jobs require infrequent stooping, 14 balancing, crouching, or climbing.” Stubbs-Danielson v. Astrue, 539 F.3d 1169, 15 1174 (9th Cir. 2008); see also Social Security Ruling (S.S.R.) 96–9p, at 8 (postural 16 limitations of kneeling, climbing, balancing, crouching, or crawling would not 17 erode the occupational base for a full range of unskilled sedentary work; most 18 unskilled sedentary occupations require very little to occasional stooping). 19 Plaintiff also notes the ALJ misstated Dr. Weeks’ finding regarding carrying 20 by asserting “there is absolutely no basis to limit carrying to less than 10 pounds.” 21 Tr. 34; ECF No. 12 at 14. Dr. Weeks found Plaintiff’s maximum lifting and ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 16 1 carrying capacity is 10 pounds occasionally and frequently. Tr. 475. The error is 2 harmless because the limitation to sedentary work in the RFC means lifting and 3 carrying is limited to 10 pounds, which is consistent with Dr. Weeks’ lifting and 4 carrying assessment. 20 C.F.R. §§ 404.1567, 416.967. An error is harmless when 5 it is inconsequential to the ultimate nondisability determination. See Carmickle v. 6 Comm’r of Soc. Sec. Admin, 533 F.3d 1155, 1162 (9th Cir. 2008); Stout, 454 F.3d 7 at 1055; Batson, 359 F.3d at 1195-97. 8 Plaintiff also notes Dr. Weeks’ finding that Plaintiff had difficulty with 9 balance and was unable to squat or hop during her physical examination. ECF No. 10 12 at 14. Plaintiff asserts Dr. Weeks’ opinion is based “off the records he 11 reviewed, his objective findings, as well as [Plaintiff’s] subjective complaints.” 12 ECF No. 12 at 14. Plaintiff makes no argument, but presumably Plaintiff’s point is 13 that Dr. Weeks’ findings are supported by his exam and review of the record. 14 However, even if the few findings noted by Plaintiff supported the conclusion that 15 Plaintiff can never engage in postural activities (and the Court does not so find), 16 that would not negate the ALJ’s conclusion based on the record overall that 17 Plaintiff’s child care activities contradict Dr. Weeks’ finding regarding postural 18 limitations. The ALJ gave specific, legitimate reasons supported by substantial 19 evidence for rejecting the postural limitations assessed by Dr. Weeks. 20 C. Symptom Claims 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 17 1 Plaintiff contends the ALJ improperly rejected her symptom claims. ECF 2 No. 12 at 14-19. An ALJ engages in a two-step analysis to determine whether a 3 claimant’s testimony regarding subjective pain or symptoms is credible. “First, the 4 ALJ must determine whether there is objective medical evidence of an underlying 5 impairment which could reasonably be expected to produce the pain or other 6 symptoms alleged.” Molina, 674 F.3d at 1112 (internal quotation marks omitted). 7 “The claimant is not required to show that her impairment could reasonably be 8 expected to cause the severity of the symptom she has alleged; she need only show 9 that it could reasonably have caused some degree of the symptom.” Vasquez v. 10 11 Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). Second, “[i]f the claimant meets the first test and there is no evidence of 12 malingering, the ALJ can only reject the claimant’s testimony about the severity of 13 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 14 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal 15 citations and quotations omitted). “General findings are insufficient; rather, the 16 ALJ must identify what testimony is not credible and what evidence undermines 17 the claimant’s complaints.” Id. (quoting Lester, 81 F.3d at 834; see also Thomas v. 18 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he ALJ must make a credibility 19 determination with findings sufficiently specific to permit the court to conclude 20 that the ALJ did not arbitrarily discredit claimant’s testimony.”). “The clear and 21 convincing [evidence] standard is the most demanding required in Social Security ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 18 1 cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. 2 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 3 In assessing a claimant’s symptom complaints, the ALJ may consider, inter 4 alia, (1) the claimant’s reputation for truthfulness; (2) inconsistencies in the 5 claimant’s testimony or between his testimony and his conduct; (3) the claimant’s 6 daily living activities; (4) the claimant’s work record; and (5) testimony from 7 physicians or third parties concerning the nature, severity, and effect of the 8 claimant’s condition. Thomas, 278 F.3d at 958-59. 9 This Court finds that the ALJ provided specific, clear, and convincing 10 reasons for finding Plaintiff’s statements concerning the intensity, persistence, and 11 limiting effects of her symptoms less than fully persuasive. Tr. 34. 12 First, the ALJ found the medical evidence indicates Plaintiff’s impairments 13 are not as severe as alleged. Tr. 30-31. While subjective pain testimony may not 14 be rejected solely because it is not corroborated by objective medical findings, the 15 medical evidence is a relevant factor in determining the severity of a claimant’s 16 pain and its disabling effects. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 17 2001); 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2) (2011). The ALJ discussed the 18 medical record in detail.5 Tr. 30-31. In July and August 2014, Plaintiff 19 20 21 5 The ALJ discussed Plaintiff’s physical and mental impairments. Tr. 30-31. As noted by Defendant, Plaintiff does not challenge any of the findings related to her ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 19 1 complained of pain and numbness in her bilateral hips, legs, and low back. Tr. 30, 2 305. She reported “the pain often limits her ability to walk, climb stairs, raise her 3 legs and bend.” Tr. 30, 305. The ALJ noted, however, that diagnostic x-rays of 4 her hips from July 2014 showed no acute fracture, Tr. 307-08, and an August 2014 5 lumbar spine MRI was unremarkable, Tr. 314. Tr. 30. In October 2014, Plaintiff 6 had a neuromuscular medicine consultation for complaints of leg dysfunction after 7 the birth of her first child in 2011. Tr. 450. She complained of pain, instability, 8 weakness, and numbness from her lumbar spine through her hips and legs. Tr. 9 450. Scott Carlson, M.D., found all objective tests results were normal or minimal, 10 Tr. 454, including a negative hip arthrogram. Tr. 454, 508. He concluded, “I don’t 11 find clinical or electrodiagnostic evidence of active or remote nerve injury in this 12 patient” and “[a]t this point there is no neuromuscular etiology for her leg 13 complaints or abnormal gait.” Tr. 454. Additionally, Dr. Carlson found “evidence 14 of some embellishment on examination including gait and power examination 15 which is not neurologic.” Tr. 454. 16 17 18 19 20 21 mental impairments and any challenge to the ALJ’s evaluation of her mental impairments is therefore waived. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226 n.7 (9th Cir. 2009) (noting any argument not made in the opening brief is waived). ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 20 1 The ALJ also noted that in 2015 and 2016, Plaintiff complained of pain in 2 her upper extremities and received chiropractic care which helped decrease pain 3 and improved range of motion. Tr. 31, 493-506, 509-17, 590-608. In March 2016, 4 Plaintiff was 14 weeks pregnant and a neurology exam showed Plaintiff had a 5 normal gait, negative Romberg, no atrophy, full muscle strength in the upper and 6 lower extremities, and no sensory or reflex deficits. Tr. 31, 615, 618. In 7 September 2016, Plaintiff’s one-month postpartum exam was normal. Tr. 570. 8 Plaintiff saw Mary Bergrum, M.D., in October 2016 regarding diabetes. Tr. 656- 9 67. She was in no distress and on exam her gait was normal. Tr. 657. In 10 November 2016, her musculoskeletal and neurological systems were normal on 11 exam. Tr. 575, 577-79. 12 The ALJ concluded that overall, although Plaintiff may have limits on the 13 type of work she can perform, the objective findings do not support Plaintiff’s 14 allegations of an inability to do all work. Tr. 30. Plaintiff insists “there were 15 objective findings” of hip pain and that the ALJ “failed to recognize” that pain is 16 subjective. ECF No 12 at 16. The ALJ did not conclude that there are is no 17 objective evidence of hip pain, only that the objective evidence does not support 18 the level of limitation alleged. Tr. 30-31, 34-35. Furthermore, the ALJ 19 acknowledged the subjectivity of pain and noted that when statements about 20 symptoms and pain are not supported by objective medical evidence, other 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 21 1 evidence must be considered. Tr. 30. However, as noted supra, that does not 2 mean objective findings are irrelevant or not to be considered. 3 Plaintiff also notes the “sought treatment repeatedly for her pain,” ECF No. 4 12 at 16, which is not objective evidence. Plaintiff cites the findings of Dr. Weeks, 5 but that opinion was partially rejected by the ALJ for legally sufficient reasons, 6 discussed supra, and was also largely credited. ECF No. 12 at 16; Tr. 34, 475. 7 Lastly, Plaintiff suggests the ALJ improperly considered Dr. Carlson’s finding of 8 some embellishment on exam since Dr. Carlson “did not dismiss” Plaintiff’s 9 complaints. ECF No. 12 at 16. Despite Plaintiff’s assertions to the contrary, the 10 ALJ did not dismiss Plaintiff’s complaints, as the ALJ gave Plaintiff the benefit of 11 the doubt and credited most of Dr. Weeks’ opinion, which is the most restrictive 12 medical opinion in the record. Tr. 32, 34. The ALJ’s finding that the objective 13 evidence does not support the degree of limitation alleged by Plaintiff is based on a 14 reasonable interpretation of the record and substantial evidence. 15 Second, the ALJ found Plaintiff’s daily activities indicate her impairments 16 are not as severe as alleged. Tr. 30-31. It is reasonable for an ALJ to consider a 17 claimant’s activities which undermine claims of totally disabling pain in assessing 18 a claimant’s symptom complaints. See Rollins, 261 F.3d at 857. However, it is 19 well-established that a claimant need not “vegetate in a dark room” in order to be 20 deemed eligible for benefits. Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987). 21 Notwithstanding, if a claimant is able to spend a substantial part of her day ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 22 1 engaged in pursuits involving the performance of physical functions that are 2 transferable to a work setting, a specific finding as to this fact may be sufficient to 3 discredit an allegation of disabling excess pain. Fair, 885 F.2d at 603. 4 Furthermore, "[e]ven where [Plaintiff’s daily] activities suggest some difficulty 5 functioning, they may be grounds for discrediting the claimant’s testimony to the 6 extent that they contradict claims of a totally debilitating impairment.” Molina, 7 674 F.3d at 1113. 8 The ALJ noted Plaintiff maintains the ability to perform tasks such as 9 attending to her personal needs, preparing meals, performing household duties, 10 shopping in stores, watching television, reading, spending time with family, and 11 taking care of children. Tr. 30. The ALJ found that although Plaintiff may have 12 some limitations, these activities undermine her allegations of significant difficulty 13 with exertional activities. Tr. 30, 258-61, 379. Plaintiff contends her activities are 14 qualified by her physical difficulties. ECF No. 12 at 17; Tr. 458, 479, 513, 516. 15 For example, when she goes to the grocery store, she uses an electric cart, and she 16 has a caregiver who helps with basic chores in her home once or twice a week. Tr. 17 58-60, 271, 479. In this case, particularly in light of Plaintiff’s allegations and the 18 RFC finding, the ALJ’s finding regarding daily activities is reasonable and based 19 on substantial evidence. 20 21 Third, the ALJ found Plaintiff’s statements to her providers varied from her testimony at the hearing. Tr. 43-44. In evaluating a claimant’s symptom claims, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 23 1 an ALJ may consider the consistency of an individual’s own statements made in 2 connection with the disability review process with any other existing statements or 3 conduct made under other circumstances. Smolen v. Chater, 80 F.3d 1273, 1284 4 (9th Cir. 1996); Thomas, 278 F.3d at 958-59. For example, the ALJ noted that 5 Plaintiff testified she has problems with balance and falls, Tr. 58, but in September 6 2015 she denied poor balance upon exam, Tr. 539. Tr. 31. On reply, Plaintiff 7 notes these statements were made almost a year apart but fails to identify any error 8 in the ALJ’s interpretation of the evidence. ECF No. 14 at 6. Plaintiff also asserts 9 this record is distinguishable because “her physical symptoms were not the focus 10 of the appointment.” ECF No. 14 at 6. However, it would be reasonable to expect 11 that Plaintiff’s responses to questions about her symptoms would be the same 12 regardless of the provider or the purpose of the visit.6 This not does not rebut the 13 ALJ’s reasonable interpretation of the evidence and this is a clear and convincing 14 reason supported by substantial evidence. 15 16 17 6 18 in September 2015. Tr. 536. In addition to depression screening, Ms. Julagay 19 reviewed Plaintiff’s current problems, medications, performed a review of systems, 20 physical exam, obtained vital signs, and listed her impression and 21 recommendations for Plaintiff’s mental and physical health. Tr. 536-40. Plaintiff saw treating ARNP Angella Julagay for concerns related to her memory ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 24 1 Fourth, the ALJ found Plaintiff’s response to conservative treatment 2 undermines her allegations. Tr. 34. Claims about disabling pain are undermined 3 by favorable response to conservative treatment. Tommasetti v. Astrue, 533 F.3d 4 1035, 1039-1040 (9th Cir. 2008); see also Parra v. Astrue, 481 F.3d 742, 750–51 5 (9th Cir. 2007) (finding “evidence of ‘conservative treatment’ is sufficient to 6 discount a claimant’s testimony regarding severity of an impairment”). The ALJ 7 found that Plaintiff has received only conservative treatment and her conditions 8 have stabilized. Tr. 34; see Tr. 454, 465-66, 493-95, 497-505, 509-17, 553. 9 Plaintiff observes that surgery has not been offered as a treatment, ECF No. 14 at 10 5, which supports the ALJ’s conclusion regarding conservative treatment. Plaintiff 11 also contends her treatment has not “fully resolve[d] her symptoms,” ECF No. 14 12 at 5, but full resolution of symptoms is not required for a nondisability finding. 13 This is a clear and convincing reason supported by substantial evidence. 14 Fifth, the ALJ noted evidence of exaggeration of symptoms which 15 undermines Plaintiff’s symptom claims. Tr. 31. An ALJ may reject a claimant’s 16 testimony if there is evidence of a tendency to exaggerate symptoms. Tonapetyan 17 v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). The ALJ noted that Dr. Carlson 18 found “embellishment on examination” and “there is no neuromuscular etiology 19 for her leg complaints or abnormal gait.” Tr. 31, 454. This is a reasonable 20 consideration in evaluating Plaintiff’s testimony. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 25 1 Plaintiff observes without making any argument that despite Dr. Carlson’s 2 finding of embellishment, “he did not dismiss Plaintiff’s complaints.” ECF No. 14 3 at 7. Plaintiff presumably references Dr. Carlson’s recommendation that she 4 continue physical therapy for soft tissue pain and stated, “I certainly agree that an 5 illotibial band problem and possible other orthopedic etiologies may be a cause for 6 ongoing complaints.” Tr. 454. Plaintiff’s point is unclear as the ALJ did not find 7 that she has no basis for any complaints. Rather, the ALJ found Plaintiff’s 8 testimony regarding the severity of her symptoms is not fully supported, in part 9 because Dr. Carlson noted a finding of exaggeration of symptoms. This is a clear 10 and convincing reason supported by substantial evidence. 11 D. 12 Step Four Plaintiff argues the ALJ erred at step four because the vocational expert’s 13 opinion that Plaintiff can return to past relevant work was based on an incomplete 14 hypothetical. ECF No. 12 at 18. The ALJ’s hypothetical must be based on 15 medical assumptions supported by substantial evidence in the record which reflect 16 all of a claimant’s limitations. Osenbrook v. Apfel, 240 F.3D 1157, 1165 (9th Cir. 17 2001). The hypothetical should be “accurate, detailed, and supported by the 18 medical record.” Tackett, 180 F.3d at 1101. The ALJ is not bound to accept as 19 trued the restrictions presented in a hypothetical question propounded by a 20 claimant’s counsel. Osenbrook, 240 F.3d at 1164; Magallanes v. Bowen, 881 F.2d 21 747, 756-57 (9th Cir. 1989); Martinez v. Heckler, 807 F.2d 771, 773 (9th Cir. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 26 1 1986). The ALJ is free to accept or reject these restrictions as long as they are 2 supported by substantial evidence, even when there is conflicting medical 3 evidence. Magallanes, 881 F.2d at id. 4 Plaintiff’s argument assumes that the ALJ erred in considering the medical 5 opinion evidence and Plaintiff’s subjective complaints. ECF No. 12 at 18. The 6 ALJ’s reasons for rejecting the postural limitations in Dr. Weeks’ opinion and 7 Plaintiff’s symptom claims were legally sufficient and supported by substantial 8 evidence, discussed supra. The ALJ therefore properly included occasional 9 postural limitations in the RFC and hypothetical to the vocational expert. The 10 hypothetical contained the limitations the ALJ found credible and supported by 11 substantial evidence in the record. The ALJ’s reliance on testimony the VE gave 12 in response to the hypothetical was therefore proper. See id.; Bayliss, 427 F. 3d at 13 1217-18. 14 CONCLUSION 15 Having reviewed the record and the ALJ’s findings, this Court concludes the 16 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 17 Accordingly, 18 1. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is DENIED. 19 2. Defendant’s Motion for Summary Judgment, ECF No. 13, is 20 GRANTED. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 27 1 IT IS SO ORDERED. The District Court Clerk is directed to enter this 2 Order and provide copies to counsel. Judgment shall be entered for Defendant and 3 the file shall be CLOSED. 4 DATED March 26, 2019. 5 6 s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 28

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