ANNE B., Case No. 20-cv-03340-DMR Plaintiff, v. ORDER ON CROSS MOTIONS FOR ANDREW SAUL, Re: Dkt. Nos. 20, 26 Defendant.
Plaintiff Anne B. moves for summary judgment to reverse the Commissioner of the Social Security Administration’s (“SSA”) final administrative decision, which found Plaintiff not disabled and therefore denied her application for benefits under the Social Security Act, 42 U.S.C. § 401 et seq. The Commissioner cross-moves to affirm. For the reasons stated below, the court denies Plaintiff’s motion and grants the Commissioner’s motion. Plaintiff filed an application for Supplemental Security Income (“SSI”) benefits on December 11, 2017, alleging disability beginning on March 1, 2006. Administrative Record (“A.R.”) 232-52, 259. Her application was initially denied on May 2, 2018 and again on reconsideration on September 20, 2018. A.R. 145-50, 161-66. An Administrative Law Judge (“ALJ”) held a hearing on August 13, 2019 and issued an unfavorable decision on November 1, 2019. A.R. 8-33.1
1 Plaintiff was insured for the purposes of Title II Social Security Disability Insurance (“SSDI”) benefits through December 2010. In 2011, she filed a claim for Title II benefits alleging disability starting on March 1, 2006 which was denied. Plaintiff later withdrew her request for a hearing. A.R. 11, 134-37. She filed a second claim for Title II benefits in October 2017, again alleging disability since March 1, 2006. A.R. 11, 230-31. In his November 1, 2019 decision, the ALJ The ALJ determined that Plaintiff has the following severe impairments: major depressive disorder; anxiety disorder; borderline intellectual functioning; right ankle lateral ligamentous laxity as compared to left; history of bilateral plantar fasciitis; and Scheuermann’s Disease in her teenage years. A.R. 14. The ALJ found that Plaintiff retains the following residual functional capacity (“RFC”):
[T]he claimant has the residual functional capacity to perform light work as defined in 20 CFR [§] 416.967(b) except the claimant is able to frequently lift and carry 10 pounds, occasionally lift and carry 20 pounds; sit for up to 6 hours in an 8-hour workday, stand and walk 6 hours in an 8-hour workday with normal breaks; and occasional overhead reaching bilaterally. The claimant should never climb ladders, ropes or scaffolds; but is able to frequently climb ramps and stairs. The claimant can occasionally stoop and kneel. The claimant is able to perform simple, routine, repetitive tasks, involving no more than simple work-related decisions and occasional work place changes; can sustain a low stress environment; can have occasional interaction with coworkers, can perform work which would not entail performing teamwork; and can have no more than rare contact (no more than 5% of the workday) with general public. He [sic] can perform work limited to no fast-paced production requirements. With regard to concentration persistence and pace, the claimant would be off task 5% of an 8-hour workday. A.R. 18. Relying on the opinion of a vocational expert (“V.E.”) who testified that an individual with such an RFC could perform other jobs existing in the economy, including office helper, bagging salvager, and mail clerk, the ALJ concluded that Plaintiff is not disabled. A.R. 27. After the Appeals Council denied review, Plaintiff sought review in this court pursuant to 42 U.S.C. § 405(g). 1. Did the ALJ err in weighing the medical evidence? 2. Did the ALJ err in evaluating Plaintiff’s credibility? 3. Did the ALJ err in determining Plaintiff’s severe impairments? 4. Did the ALJ err in determining Plaintiff’s RFC? Pursuant to 42 U.S.C. § 405(g), this court has the authority to review a decision by the Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence within the record that could lead a reasonable mind to accept a conclusion regarding disability status. See Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (internal citation omitted). When performing this analysis, the court must “consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citation and quotation marks omitted). If the evidence reasonably could support two conclusions, the court “may not substitute its judgment for that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997) (citation omitted). “Finally, the court will not reverse an ALJ’s decision for harmless error, which exists when it is clear from the record that the ALJ’s error was inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citations and internal quotation marks omitted). Plaintiff argues that the ALJ erred in evaluating the medical opinion evidence, making a credibility determination, evaluating her severe impairments, and formulating her RFC. A. The ALJ’s Weighing of the Medical Evidence 1. Legal Standard In the Ninth Circuit, courts employ a hierarchy of deference to medical opinions based on the relation of the doctor to the patient. Namely, courts distinguish between three types of physicians: those who treat the claimant (“treating physicians”) and two categories of “nontreating physicians,” those who examine but do not treat the claimant (“examining physicians”) and those who neither examine nor treat the claimant (“non-examining physicians”). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). A treating physician’s opinion is entitled to more weight than an examining physician’s opinion, and an examining physician’s opinion is entitled to more weight The Social Security Act tasks the ALJ with determining credibility of medical testimony and resolving conflicting evidence and ambiguities. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). To reject the opinion of an uncontradicted treating physician, an ALJ must provide “clear and convincing reasons.” Lester, 81 F.3d at 830; see, e.g., Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995) (affirming rejection of examining psychologist’s functional assessment which conflicted with his own written report and test results). If another doctor contradicts a treating physician, the ALJ must provide “specific and legitimate reasons” supported by substantial evidence to discount the treating physician’s opinion. Lester, 81 F.3d at 830. This same standard applies to the rejection of an examining physician’s opinion as well. Id. at 830-31. A non- examining physician’s opinion alone cannot constitute substantial evidence to reject the opinion of an examining or treating physician, Pitzer v. Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990); Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984), though a non-examining physician’s opinion may be persuasive when supported by other factors. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (noting that opinion by “non-examining medical expert . . . may constitute substantial evidence when it is consistent with other independent evidence in the record”); Magallanes v. Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989) (upholding rejection of treating physician’s opinion given contradictory laboratory test results, reports from examining physicians, and testimony from claimant). For applications for Social Security benefits filed before March 27, 2017, “[t]he medical opinion of a claimant’s treating doctor is given ‘controlling weight’ so long as it ‘is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant’s] case record.’” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527(c)(2)); see also 20 C.F.R. § 416.927(c)(2) (same). For applications filed after March 27, 2017, the SSA’s regulations and several Social Security Rulings regarding the evaluation of medical opinion evidence have been amended and/or rescinded. This includes SSR 96-2p, “Titles II and XVI: Giving Controlling Weight to Treating 2P (S.S.A. Mar. 27, 2017). Under the new regulations, the SSA will no longer give “any specific evidentiary weight, including controlling weight,” to medical opinions or prior administrative medical findings, including those from treating physicians. 20 C.F.R. § 404.1520c(a); 20 C.F.R. § 416.920c(a). Instead, the SSA must evaluate the “persuasiveness” of all medical opinions based on several factors, including supportability, consistency, the source’s relationship with the claimant, length of the treatment relationship, frequency of examinations, purpose of the treatment relationship, whether the source has examined the claimant, any specialization, and other factors, such as “evidence showing a medical source has familiarity with the other evidence in the claim or an understanding of [the SSA’s] disability program’s policies and evidentiary requirements.” 20 C.F.R. 20 C.F.R. § 404.1520c(a), (c), 20 C.F.R. § 416.920c(a), (c). “The two ‘most important factors for determining the persuasiveness of medical opinions are consistency and supportability,’ which are the ‘same factors’ that ‘form the foundation of the current treating source rule.’” V.W. v. Comm’r of Soc. Sec., No. 18-CV-07297-JCS, 2020 WL 1505716, at *13 (N.D. Cal. Mar. 30, 2020) (quoting Revisions to Rules, 82 Fed. Reg. 5844-01 at 5853); see 20 C.F.R. § 416.920c(b)(2), 20 C.F.R. § 404.1520c(b)(2). “Although the regulations eliminate the ‘physician hierarchy,’ deference to specific medical opinions, and assigning ‘weight’ to a medical opinion, the ALJ must still ‘articulate how [they] considered the medical opinions’ and ‘how persuasive [they] find all of the medical opinions.” V.W., 2020 WL 1505716 at *14 (citation omitted). “Further, the ALJ is required to specifically address the two most important factors, supportability and consistency.” Id. (citing 20 C.F.R. § 416.920c(b)); see also 20 C.F.R. § 404.1520c(b). 2. Discussion Plaintiff contends the ALJ erred in finding the opinions of Drs. Kerosky, Rana, Woodcox, and San Valentin unpersuasive or only partially persuasive. a. Dr. Maria Kerosky Maria Kerosky, Ph.D., completed a psychological disability evaluation on April 22, 2019. A.R. 1252-61. She administered a complete psychological evaluation, history, and mental status Kerosky, Plaintiff’s “interest, motivation, and effort during the exam appeared adequate.” A.R. 1253. Plaintiff described the following activities of daily living that she is able to perform: dressing; taking care of personal hygiene; performing household chores such as washing dishes and doing laundry; using a microwave; doing errands/shopping independently; and driving. A.R. 1254-55. With respect to the mental status examination, Plaintiff’s attitude, motor activity, sensorium, orientation, attention/concentration, speech, thought process, and thought content were within normal limits. Dr. Kerosky noted that her intellect, memory, fund of knowledge, and insight were “in the borderline range” and/or fair. She had difficulty with abstract reasoning and judgment and her comprehension was mildly impaired. Plaintiff’s mood was “anxious, restless.” A.R. 1255. Dr. Kerosky diagnosed persistent depressive disorder and unspecified anxiety disorder. Additionally, Dr. Kerosky diagnosed borderline intellectual functioning based on test results. A.R. 1257. Plaintiff’s prognosis is “[g]uarded.” Dr. Kerosky opined that Plaintiff is able to follow simple one- or two-step instructions, and would have only mild difficulty performing simple, repetitive tasks with required persistence and pace. She would be mildly to moderately impaired in her ability to interact appropriately with coworkers, supervisors, and the public, and moderately impaired in her ability to maintain adequate sustained attention/concentration during routine workday. According to Dr. Kerosky, Plaintiff would have moderate to marked difficulty in the following areas: following complex/detailed instructions; performing complex work tasks; adapting to stressors in the workplace setting; and completing a normal workday/workweek without interruptions related to her psychiatric condition. Additionally, Plaintiff would be markedly impaired in her ability to adapt to changes in a job routine. A.R. 1257-58. The ALJ summarized the functional limitations assessed by Dr. Kerosky2 and found only portions of the opinion persuasive. A.R. 24-25. According to the ALJ, Dr. Kerosky “overstates
2 The summary was inaccurate on one point: Dr. Kerosky opined that Plaintiff would be the claimant’s limitations in her ability to understand, remember, and apply information and in her ability to adapt and manage. Therefore, her opinion in those areas is not persuasive.” A.R. 25. However, he found her opinion “regarding no more than moderate limitations in social interaction and in the ability to concentrate, persist, or maintain pace” to be persuasive. A.R. 25. The ALJ addressed the consistency and supportability of Dr. Kerosky’s opinion that Plaintiff has marked limitations in certain areas. He wrote that “[i]n terms of support, while the claimant had difficulty answering hypotheticals meant to test judgment, she is able to drive and sometimes independently shops and runs errands, which is more consistent with a moderate impairment in both areas,” presumably referring to Plaintiff’s “ability to understand, remember, and apply information” and “adapt and manage.” A.R. 25. He also found that “those marked limitations are not consistent with the medical evidence of record which shows a normal fund of knowledge, intact memory, normal thought content and thought process, and good to excellent impulse control.” A.R. 25 (citing A.R. 934, 952). Finally, he wrote that “even marked impairments in [the areas of understanding, remembering, and applying information and adapting] would be accounted for by limiting [Plaintiff] to work in a low stress environment involving no more than simple work- related decisions and occasional work place changes.” A.R. 25. The court finds that the ALJ did not err in discounting portions of Dr. Kerosky’s opinion. First, he adhered to the requirements for weighing medical opinions set forth in the governing regulations, since he addressed the consistency and supportability of her opinion. See 20 C.F.R. § 416.920c(b)(2), 20 C.F.R. § 404.1520c(b)(2). Moreover, substantial evidence supports his assessment of consistency and supportability. The records the ALJ specifically cited as inconsistent with Dr. Kerosky’s assessment of marked limitations in certain areas, A.R. 934 and 952, support his reasoning. A.R. 934 is part of the record of a June 2, 2017 mental health evaluation by Jianan Hu, a resident at Kaiser, see A.R. 931-36, which was the result of Plaintiff’s request for treatment for depression on May 18, 2017. A.R. 926. As part of the evaluation, Dr. Hu performed a mental status examination. All categories were within normal limits except for mood, which was anxious; affect, which was appropriate to mood; and speech, which was normal attention, concentration, memory, and fund of knowledge were normal, and her impulse control was “good.” A.R. 934. The other record cited by the ALJ, A.R. 952, is part of the record of a June 19, 2017 psychiatrist intake evaluation of Plaintiff by Michael David Sands, M.D., the purpose of which was “to consider treating [Plaintiff] with medications.” A.R. 948; see A.R. 948-952. Dr. Sands performed a mental status examination. With the exception of Plaintiff’s mood, which he noted was “mildly depressed,” all categories were within normal limits. Attention, concentration, memory, and fund of knowledge were “grossly intact” and her impulse control was “excellent.” A.R. 952. Dr. Sands declined to prescribe medications, writing, “[n]o medications, for now. Symptoms are not severe enough.” A.R. 953. He wrote that Plaintiff “does not have severe depression. Seems more like dysthymia picture, avoidant features.” A.R. 949. Other evidence in the record supports the ALJ’s conclusion that Dr. Kerosky’s opinion that Plaintiff is markedly limited in some areas is not consistent or supported by the record. As noted, Plaintiff requested treatment for depression in May 2017. She underwent individual psychotherapy and group therapy from June 2017 through February 2018, ending therapy after informing her provider “that she doesn’t have any other issues she needs to address at this time.” A.R. 353-398, 926-1065; see A.R. 1065. At her final session, her provider noted, “[g]oals are completed.” A.R. 1066. In 2018, Plaintiff started taking Prozac and reported “significant improvement for her symptoms of persistent depressive disorder” on the medication. A.R. 1125. It appears that she then switched to Lexapro, which caused side effects, but after she stopped taking Lexapro in September 2018, she reported that her “mood and anxiety are okay off of Lexapro.” A.R. 1169-70. Plaintiff’s mental health treatment providers consistently noted mental status examinations that were “normal,” with the exception of Plaintiff’s mood, which was typically noted as depressed or anxious, and her corresponding affect. See A.R. 354, 360-61, 364- 65, 368-69, 389-90, 394, 398, 934, 1037, 1064, 1098, 1127, 1173, 1176. Dr. Kerosky’s opinion is also contrary to the opinion by Faith Tobias, Ph.D., who performed a psychological consultative examination on March 17, 2018. A.R. 1130-34. Like Dr. examination and administered tests. A.R. 1130. Dr. Tobias diagnosed Plaintiff with probable intellectual functioning within the borderline impaired to low average range; rule out specific learning disorder; persistent depressive disorder; and unspecified anxiety disorder. A.R. 1132. Dr. Tobias opined that Plaintiff is mildly to moderately impaired in the areas of following and remembering complex/detailed instructions; withstanding the stress of a routine workday; and maintaining emotional stability/predictability. Plaintiff is mildly impaired in the ability to maintain adequate attention and concentration. She has no impairment in her ability to adapt to changes in a job routine. A.R. 1133. The ALJ found Dr. Tobias’s opinion persuasive because it “is supported by a detailed analysis that highlights relevant evidence including valid test results, no language comprehension difficulties, and adequate hygiene.” A.R. 24. He also found that Dr. Tobias’s opinion “is generally consistent with the objective medical record including low IQ scores, but a normal fund of knowledge, a pleasant and cooperative demeanor, normal attention and concentration, good insight and judgment and a mildly depressed and anxious mood.” A.R. 24 (citing Dr. Kerosky’s report and A.R. 934, 952, 1055). Finally, Dr. Kerosky’s opinion is also contrary to the opinions by the State agency medical consultants, both of whom concluded that Plaintiff had no more than moderate impairments with respect to any mental limitations. See A.R. 78-80 (Apr. 17, 2018 opinion of James Pinkson, Ph.D.); 109-111 (Sept. 5, 2018 opinion of R. Paxton M.D.). Ultimately, Plaintiff disputes the ALJ’s determination that Dr. Tobias’s opinion was more persuasive than Dr. Kerosky’s. However, the ALJ is responsible for determining credibility of medical testimony and resolving conflicting evidence and ambiguities. See Reddick, 157 F.3d at 722. Further, if the evidence reasonably could support two conclusions, the court “may not substitute its judgment for that of the Commissioner” and must affirm the decision. Jamerson, 112 F.3d at 1066. The court finds that the ALJ did not err with respect to Dr. Kerosky’s opinion. b. Dr. San Valentin On January 22, 2018, Pura Maria San Valentin, M.D., wrote a letter that stated in full: “Due to her foot condition, my patient is not able to stand for prolonged periods of time. This has 22, 2018, it appears that Dr. San Valentin wrote the letter at Plaintiff’s request to use at a theme park to obtain accommodations. A.R. 1287. The ALJ summarized Dr. San Valentin’s letter and stated that he considered it and found it “not persuasive.” A.R. 25. He explained that Dr. San Valentin “gave no supporting reasons in the letter” for the conclusion that Plaintiff is not able to stand for prolonged periods of time of time and that “treatment notes are not supportive.” A.R. 25. He noted that even though Plaintiff “used a letter regarding chronic foot pain, she was still able to take her son to Disneyland in December 2018” and “does not use an assistive medical device.” A.R. 25 (citing A.R. 1501); see also A.R. 54-55 (testimony that she does not use an assistive device). The ALJ also reasoned that Dr. San Valentin’s statement was inconsistent with the objective medical record. A.R. 25. The court finds that the ALJ did not err with respect to Dr. San Valentin’s opinion. As set forth above, the ALJ addressed the persuasiveness of the opinion with reference to supportability and consistency. Substantial evidence supports the ALJ’s conclusions on those issues. Specifically, the treatment records corresponding to the date of the Dr. San Valentin’s letter, A.R. 1287-1291, contain no reference to Plaintiff’s feet or ability to stand. In fact, none of Dr. San Valentin’s treatment notes in the record reference the condition of her feet; instead, they show treatment for other issues, such as hypothyroidism and sinus infections. See, e.g., A.R. 405, 414, 430, 1447. Therefore, the basis for Dr. San Valentin’s opinion is not evident from a review of her own records of treating Plaintiff. The ALJ also considered the consistency of Dr. San Valentin’s assessment with the medical record, noting “an unremarkable right ankle x-ray in 2004” and records reflecting a “consistently normal gait.” A.R. 25 (citing A.R. 1080, 952, 1173, and 1409). Other records support the ALJ’s finding that Dr. San Valentin’s assessment was inconsistent with the objective medical record. See A.R. 1080 (noting “unremarkable” right ankle x-ray dated Jan. 10, 2015); 1182 (noting that Plaintiff was “ambulatory with steady gait”); 1253 (“[n]o obvious gait/gross movement abnormalities were noted during the exam”). The court finds no error. c. Dr. Woodcox The record contains several forms by Plaintiff’s podiatrist, Larry Woodcox, DPM, DC, functional assessments in January 2018 (A.R. 1273-75), January 2017 (A.R. 1279), October 2013 (A.R. 1280-81), June 2012 (A.R. 1282-84), and “patient treatment verifications” in April 2011 and February 2012 (A.R. 1285-86). There is also an undated assessment by Dr. Woodcox in the record. A.R. 1276-78. In the January 2018 assessment, Dr. Woodcox opined that Plaintiff can stand/walk for 0-2 hours in an eight-hour workday and sit for 0-2 hours in an eight-hour workday without further elaboration. A.R. 1274. He stated that Plaintiff is restricted in using her feet for repetitive movements, such as in operating foot controls for the following reason: “Has severe [right] foot/ankle injury, resulting [in] [left] foot injury compensating for [right] foot. Back injury [secondary] to primary injury.” A.R. 1274. Dr. Woodcox also opined that Plaintiff can lift and carry 10 pounds frequently and 15 pounds infrequently, and that she can occasionally climb, balance, stoop, kneel, crouch, crawl, and reach. A.R. 1275. Dr. Woodcox assessed identical restrictions in 2012 and 2013. A.R. 1280-81, 1283. In the April 2011 patient treatment verification, he noted that Plaintiff “is currently being seen in reference to” a “lumbar injury” and “foot/ankle injury” in the left and right feet. A.R. 1285. The ALJ wrote that Dr. Woodcox’s opinion about Plaintiff’s limitations “is not well- supported by the rationale that the claimant has a foot/ankle injury resulting in her left foot compensating for the right foot as well as a back injury,” citing the January 2018 assessment. A.R. 25 (citing A.R. 1274). He also wrote that “[t]he opinion is not consistent with the objective medical record including normal gait.” A.R. 25 (citing A.R. 952, 1173, 1186, 1409). Therefore, the ALJ concluded, “the opinion is not persuasive.” A.R. 25. Plaintiff concedes that the record contains only one page of treatment notes by Dr. Woodcox. Pl.’s Mot. 13 (citing A.R. 920). This record, which is largely illegible, appears to reflect treatment on four dates: February 9, 2016, January 31, 2017, January 30, 2018, and February 8, 2018. According to Plaintiff, the ALJ should have requested Dr. Woodcox’s longitudinal treatment records or afforded Plaintiff’s advocate time to obtain additional evidence, noting that the ALJ rejected her advocate’s request at the hearing to obtain additional evidence assessment that she is significantly limited in her ability to stand and walk due to issues with her feet, ankle, and back. Pl.’s Mot. 13. The ALJ has an independent duty to fully develop the record. 42 U.S.C. § 423(d)(5)(B); 20 C.F.R. § 404.1512(b)(1). “This duty extends to the represented as well as to the unrepresented claimant.” Tonapetyan, 242 F.3d at 1150 (citation omitted). “Ambiguous evidence, or the ALJ’s own finding that the record is inadequate to allow for proper evaluation of the evidence, triggers the ALJ’s duty to ‘conduct an appropriate inquiry,’” which may include “subpoenaing the claimant’s physicians, submitting questions to the claimant’s physicians, continuing the hearing, or keeping the record open after the hearing to allow supplementation of the record.” Id. (citations omitted). However, “[a] specific finding of ambiguity or inadequacy of the record is not necessary to trigger this duty to inquire, where the record establishes ambiguity or inadequacy.” McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011) (citing Tonapetyan, 242 F.3d at 1150). Plaintiff does not argue, and the court does not find, that Dr. Woodcox’s opinions are “ambiguous.” Nor does Plaintiff explain how the record is inadequate to allow the ALJ to evaluate Dr. Woodcox’s opinions. The court notes that the record contains reports from an orthopedic consultative examiner (A.R. 1080-84) and a consulting internist (A.R. 1262-71) who offered opinions about Plaintiff’s ability to stand and walk, as well as a significant number of records from Plaintiff’s own providers (A.R. 345-905, 1287-2056). Moreover, there is nothing in the record suggesting the existence of additional treatment records by Dr. Woodcox that could assist the ALJ in evaluating his opinions; in her pre-hearing brief, Plaintiff asked the ALJ to “leave the record open for a physical functional capacity form from Dr. Woodcox.” A.R. 330. The ALJ denied this request since the doctor had not already performed the evaluation. A.R. 38 (“inasmuch as it doesn’t exist yet, I’m not inclined to hold the record open for a document that doesn’t exist.”). Accordingly, the ALJ had no duty to further develop the record with respect to Dr. Woodcox. The court finds no error with respect to the ALJ’s treatment of Dr. Woodcox’s opinions, since Dr. Woodcox provided no support for his conclusions such as diagnoses, detail about Plaintiff’s range of motion or gait, testing results, or other objective medical data. Further, the gait. Substantial evidence supports the ALJ’s characterization and interpretation of these records. d. Dr. Rana On April 25, 2019, Farah M. Rana, M.D., performed an internal medicine evaluation of Plaintiff. A.R. 1262-70. Dr. Rana reviewed records, took Plaintiff’s history, and performed an examination. Dr. Rana found mild-to-moderate thoracic kyphosis and tenderness around her thoracic and lumbosacral spine, as well as reduced range of motion. A straight leg raising test while sitting was negative. A.R. 1263-64. Dr. Rana noted tenderness in Plaintiff’s right ankle joint but a normal range of motion. Plaintiff also had tenderness on the plantar surfaces of both feet, but all other joints were nontender, with full range of motion, no inflammation, and no swelling. A.R. 1264. Dr. Rana noted that Plaintiff was walking with a mild limp and favored her right foot but did not use an assistive device. She had full motor strength and reflexes and no sensory deficit. A.R. 1264. Dr. Rana diagnosed a history of Scheuermann’s disease, chronic back pain, mild to moderate kyphosis, and probable degenerative disc/joint disease. A.R. 1264. She also diagnosed chronic right ankle pain (probable arthritis), and a history of bilateral plantar fasciitis. A.R. 1264. Dr. Rana also diagnosed headaches, which she wrote was “probably . . . a combination of stress/tension type headaches and migraine headaches,” and a history of depression. A.R. 1264. Dr. Rana opined that Plaintiff can stand and walk for five hours in an eight-hour workday and can sit for six hours in an eight-hour workday. A.R. 1264. Plaintiff can carry 10 pounds frequently and 20 pounds occasionally, and can stoop, bend, kneel, crouch, and climb occasionally. She is able to handle, manipulate, feel, and finger objects “without any problem.” A.R. 1264. The ALJ found the functional limitations Dr. Rana assessed were persuasive, except for the limitation to five hours of standing and walking and only occasional climbing of ramps and stairs. The ALJ found Dr. Rana did not “explain her findings with supporting evidence” and they were inconsistent with the record. A.R. 24. The ALJ instead assessed a six-hour standing and walking The ALJ did not err with respect to Dr. Rana’s opinions that Plaintiff is able to stand and walk for only five hours in an eight-hour workday and climb ramps and stairs occasionally. The ALJ addressed the persuasiveness of these opinions with reference to supportability and consistency, and substantial evidence supports the ALJ’s determination. The ALJ noted Dr. Rana’s negative Romberg’s and straight leg raising tests for balance and nerve impingement issues that might suggest greater limitations. A.R. 24 (citing A.R. 1263-64). He also noted Plaintiff’s unremarkable x-rays, consistently normal gait, normal muscle strength and sensation, negative straight leg tests, overall normal range of motion, and a decreased range of motion at her shoulders. A.R. 24 (citing A.R. 1080, 952, 1173, 1186, 1409, 1083, 1168, 1264, 1167, 1084). Additionally, Grace Maloney, M.D., examined Plaintiff on March 3, 2018 and reviewed her records. A.R. 1080-84. Dr. Maloney diagnosed kyphosis, decreased range of motion at the shoulders, and right ankle lateral ligamentous laxity as compared to left, and opined that Plaintiff had no limitations with standing and walking. A.R. 1083-84; see A.R. 23-24. The ALJ also observed that both state agency physicians opined that Plaintiff can stand and walk for six hours in an eight-hour workday. A.R. 23, 76-77, 107-09. Substantial evidence supports the ALJ’s treatment of Dr. Rana’s opinions. B. The ALJ’s Credibility Determination 1. Legal Standard In general, credibility determinations are the province of the ALJ. “It is the ALJ’s role to resolve evidentiary conflicts. If there is more than one rational interpretation of the evidence, the ALJ’s conclusion must be upheld.” Allen v. Sec’y of Health & Human Servs., 726 F.2d 1470, 1473 (9th Cir. 1984) (citations omitted). An ALJ is not “required to believe every allegation of disabling pain” or other nonexertional impairment. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (citing 42 U.S.C. § 423(d)(5)(A)). However, if an ALJ discredits a claimant’s subjective symptom testimony, the ALJ must articulate specific reasons for doing so. Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006). In evaluating a claimant’s credibility, the ALJ cannot rely on general findings, but “must specifically identify what testimony is credible and what evidence Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (stating that an ALJ must articulate reasons that are “sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit claimant’s testimony”). The ALJ may consider “ordinary techniques of credibility evaluation,” including the claimant’s reputation for truthfulness and inconsistencies in testimony, and may also consider a claimant’s daily activities, and “unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment.” Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). The determination of whether or not to accept a claimant’s testimony regarding subjective symptoms requires a two-step analysis. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). First, the ALJ must determine whether or not there is a medically determinable impairment that reasonably could be expected to cause the claimant’s symptoms. 20 C.F.R. §§ 404.1529(b), 416.929(b); Smolen, 80 F.3d at 1281-82. “At this step, the medical evidence need not corroborate the severity of the alleged symptoms; the medical evidence need only establish that the impairment could reasonably be expected to cause some degree of the alleged symptoms.” Smith v. Kijakazi, ---F.4th---, No. 20-35487, 2021 WL 4486998, at *2 (9th Cir. Oct. 1, 2021) (citing Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)). Once a claimant produces medical evidence of an underlying impairment, the ALJ may not discredit the claimant’s testimony as to the severity of symptoms “based solely on a lack of objective medical evidence to fully corroborate the alleged severity of” the symptoms. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc) (citation omitted). Then, absent affirmative evidence that the claimant is malingering, the ALJ must provide “specific, clear and convincing” reasons for rejecting the claimant’s testimony. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). The Ninth Circuit has reaffirmed the “specific, clear and convincing” standard applicable to review of an ALJ’s decision to reject a claimant’s testimony. See Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014); see Smith, 2021 WL 4486998, at *2 (noting that the “specific, clear and convincing” standard “is the most demanding required in Social Security cases” (citation and quotation marks omitted)). Under this standard, the ALJ must supported by evidence in the record, to support that credibility determination.” Smith, 2021 WL 4486998, at *3 (quoting Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015)). 2. Discussion The ALJ found that Plaintiff’s “medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, [Plaintiff’s] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” A.R. 18. The ALJ then addressed Plaintiff’s testimony about her physical and mental impairments. As to her physical impairments, the ALJ noted that Plaintiff testified that due to “a bad foot on her right and because of walking funny,” problems with her left foot, as well as plantar fasciitis, Scheuermann’s disease, and arthritis, “she has pain all the time and some days she cannot walk as she is not steady and has to hold onto the walls.” A.R. 19; 48. Despite this testimony, the ALJ noted that Plaintiff does not use an assistive device; lives with her ten-year-old son and husband and drives her son to school every day; cooks when her husband is not at home; does laundry, sweeps, and shops for groceries; drives; and takes public transportation. A.R. 19. The ALJ also noted that Plaintiff reported other activities that were not “consistent with a debilitating physical impairment.” A.R. 20. These included taking a family trip to Portland and Seattle in 2017. A.R. 20 (citing A.R. 949). Additionally, Plaintiff discussed with her therapist resuming self-care activities and included “walking” as one such activity; reported that she “gets exercise by walking and passing out flyers for her husband’s real estate business”; reported “[w]orking at school,” which may have been a reference to her son’s school; and stated in October 2018 that one of her treatment goals for physical therapy was to be “[a]ble to take her son to Disneyland and be able to ‘keep up with him’ in 12 weeks.” Plaintiff then traveled to Disneyland in January 2019. A.R. 20 (citing A.R. 1036, 1063, 1339, 1166, 1527). As the ALJ noted, following the Disneyland trip, Plaintiff reported “lower sternal tightness/pressure like pain” radiating to the mid-back and underarm; her provider recommended ibuprofen. A.R. 20-21 (citing A.R. 1527-1529). In addition degree of medical treatment required did not support Plaintiff’s allegations and discussed the same at length. A.R. 19-20, 23-25. The court finds that the ALJ provided clear and convincing reasons that were supported by evidence to discount this portion of Plaintiff’s testimony. Regarding Plaintiff’s testimony about her mental impairments, the ALJ noted that Plaintiff “testified that she was diagnosed with a learning disability in third grade and attended college through a disability program.” A.R. 19. He also described her testimony that “she has a hard time functioning or doing anything,” that “her energy level is low and she does not interact with people,” and that she experiences “anxiety and panic attacks.” A.R. 19. The ALJ then noted that “the objective findings of this case are not consistent with the level of disabling symptoms and limitations alleged by [Plaintiff]” in connection with her diagnoses of depressive disorder, anxiety disorder, and “‘probable’ intellectual functioning within the borderline impaired to the low average range.” A.R. 21. The ALJ proceeded to discuss Plaintiff’s mental health treatment history, including “stated goals in therapy [that] were not consistent with a debilitating mental impairment.” A.R. 21. These included Plaintiff reporting that “she would like to go back to school, complete a degree in early childhood education, and work in that field,” and that she “might look for jobs in that field in the future.” A.R. 21 (citing A.R. 932, 950). The ALJ also found that Plaintiff’s activities were not consistent with a debilitating mental impairment, including taking a family trip to Portland and Seattle, going out to restaurants and having parties, and going on a family trip to Disneyland. A.R. 21 (citing A.R. 949, 992-93, 1063, 1527). The ALJ then discussed Plaintiff’s history of mental health treatment, including largely normal mental status examinations, Plaintiff’s “significant progress in therapy” and her own reports of improvement, and psychological evaluations. A.R. 21-22. The court concludes that the ALJ satisfied the “specific, clear and convincing” reasons standard for discounting the portion of Plaintiff’s testimony addressing her mental health limitations. In sum, the court finds that the ALJ did not err with respect to his credibility determination. C. The ALJ’s Determination of Plaintiff’s Severe Impairments 1. Legal Standard At step two of the five-step sequential evaluation for disability claims, the ALJ must determine whether the claimant has one or more severe impairments that significantly limit a claimant’s ability to perform basic work activities. 20 C.F.R. §§ 404.1520(a)(4)(ii) and (c); 416.920(a)(4)(ii) and (c). “Basic work activities are abilities and aptitudes necessary to do most jobs, including, for example, walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or handling.” Smolen, 80 F.3d at 1290 (quotation omitted). The Ninth Circuit has held that “the step-two inquiry is a de minimis screening device to dispose of groundless claims.” Id. (citation omitted). “An impairment or combination of impairments can be found ‘not severe’ only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual[’]s ability to work.” Id. (quotations omitted). A severe impairment “must be established by objective medical evidence from an acceptable medical source,” 20 C.F.R. § 416.921, and the ALJ must “consider the claimant’s subjective symptoms, such as pain or fatigue, in determining severity.” Smolen, 80 F.3d at 1290 (citations omitted). In addition, when assessing a claimant’s RFC, an ALJ must consider all of the claimant’s medically determinable impairments, both severe and non-severe. 20 C.F.R. §§ 416.920(e), 416.945; see Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008); see also SSR 96-8p, 1996 WL 374184, at *5 (“In assessing RFC, the adjudicator must consider limitations and restrictions imposed by all of an individual’s impairments [because] limitations due to such a ‘not severe’ impairment may prevent an individual from performing past relevant work or may narrow the range of other work that the individual may still be able to do.”). 2. Discussion As noted, the ALJ determined that Plaintiff has the following severe impairments: major depressive disorder; anxiety disorder; borderline intellectual functioning; right ankle lateral ligamentous laxity as compared to left; history of bilateral plantar fasciitis; and Scheuermann’s Disease in her teenage years. A.R. 14. Plaintiff argues that the ALJ erred by not finding that her chronic headaches, sleep apnea, limited range of motion in shoulders, chronic back and shoulder pain, and chronic ankle pain were severe impairments. Pl.’s Mot. 21. The ALJ discussed Plaintiff’s headaches and sleep apnea together. He noted that Plaintiff had been diagnosed with “obstructive sleep apnea” and “stress/tension headaches and migraine headaches.” A.R. 14 (citing A.R. 921, 950). The ALJ concluded that these impairments are “non- severe as there is no evidence of any ongoing functional limitations from these impairments due to the limited nature of the complaints, the good response to treatment, or the lack of any evidence of any functional limitations.” A.R. 14. With respect to the headaches, the ALJ noted that they “appear to be managed with Tylenol and rest.” A.R. 14 (citing A.R. 316 (Plaintiff’s list of medications, including Tylenol for headaches), 1186 (list of current medications, including acetaminophen and ibuprofen), 1263 (list of current medications including Motrin and Tylenol)). The court finds that the ALJ did not err with respect to his determination regarding Plaintiff’s headaches. At her April 2019 consultative examination with Dr. Rana, she reported “having 4-5 headaches in a week,” some of which “are dull headaches that are all over.” On other occasions “she gets sensitive to light and noise and she becomes nauseated,” and “[s]he just takes Tylenol as needed and rests,” consistent with the ALJ’s assessment. A.R. 1263. The record contains evidence that Plaintiff was prescribed Vicodin for pain in 2007 after complaining of headaches, even though the provider noted that the headaches were “[o]ften resp[onsive] to [over the counter medications].” A.R. 604. Other than that note, the only other references to treatment for headaches consists of references to Tylenol, as the ALJ observed. No physician assessed functional limitations from headaches. Nonetheless, Plaintiff argues that her headaches are “a functional limitation that would significantly affect her ability to stay on task throughout the week.” Pl.’s Mot. 20. The ALJ included a provision in the RFC that Plaintiff “would be off task 5% of an 8-hour workday.” A.R. 18. Plaintiff does not address this limitation and does not explain how it fails to address any limitations associated with her headaches. The court finds that the ALJ did not err with respect to Plaintiff’s headaches. As to sleep apnea, the ALJ noted that Plaintiff “reportedly had a c-pap machine, but did not use it” and that “there is no sign of ongoing neurological issues related to this condition.” obstructive sleep apnea and that she “was unable to tolerate it due to an upper respiratory infection.” Pl.’s Mot. 20 (citing A.R. 1075, “is not using cpapa as has u.r.i.”). However, Plaintiff’s sleep apnea was diagnosed as “mild,” A.R. 370, and she cites no evidence that her sleep apnea causes any limitations with respect to her functioning. The court finds no error. As to Plaintiff’s limited range of motion in her shoulders, chronic back and shoulder pain, and chronic ankle pain, the ALJ wrote that these impairments were “not medically determinable . . . due to a lack of objective evidence,” since “[a] medically determinable impairment may not be established solely on the basis of symptoms alone, or on the claimant’s allegations regarding symptomatology[.]” A.R. 14 (citing 20 C.F.R. § 416.929(b)). Despite this conclusion, the ALJ treated Plaintiff’s limited range of motion in her shoulders and chronic back, shoulder, and ankle pain as medically determinable impairments, considering their effect on Plaintiff’s functioning for purposes of the RFC. Specifically, the ALJ limited Plaintiff’s lifting and reaching to only “occasional overhead reaching bilaterally” and “light work” involving frequently lifting and carrying only 10 pounds and occasionally lifting and carrying 20 pounds, given the reduced range of motion in Plaintiff’s shoulders. A.R. 18, 21 (“considering decreased range of motion at her shoulders . . . the claimant is able to frequently lift and/or carry 10 pounds and occasionally lift and/or carry 20 pounds”), 23 (noting “normal strength” and “decreased range of motion at her shoulders”; “decreased range of motion . . . in support of reaching and postural limitations”). As to Plaintiff’s chronic back pain, the ALJ noted that the back pain was a symptom of Scheuermann’s kyphosis, which the ALJ found to be a severe impairment. See A.R. 14, 19 (describing Plaintiff’s testimony about pain caused by her back condition). The ALJ accounted for Plaintiff’s back pain by limiting her to light work with occasional postural maneuvers. A.R. 19, 21. Finally, as to Plaintiff’s chronic ankle pain, the ALJ assessed a severe impairment of right ankle lateral ligamentous laxity as compared to left. The ALJ extensively analyzed the objective medical evidence and medical opinion evidence regarding Plaintiff’s ability to stand and walk given her ankle pain. A.R. 18, 23-25. In sum, even though the ALJ found that Plaintiff’s limited range of motion in her 1 he considered each of these conditions and their resulting limitations on Plaintiff's functioning in 2 connection with his determination of her RFC at step four. Therefore, to the extent that he erred in 3 failing to find them severe, any error was harmless. See, e.g., Lewis v. Astrue, 498 F.3d 909, 911 4 (9th Cir. 2007) (finding that ALJ’s determination that impairment was non-severe at step 2 was 5 harmless because the ALJ “considered any limitations posed by the [condition] at Step 4.”). 6 D. The ALJ’s Assessment of Plaintiff’s RFC 7 Finally, Plaintiff argues that the ALJ erred in assessing her RFC. This argument is based 8 on her previous contentions that the ALJ erred with respect to the medical opinion evidence and 9 Plaintiff's testimony. See Pl.’s Mot. 22-23 (“[t]he ALJ’s errors determining Plaintiff's RFC and 10 finding that she is capable of performing other work stem from his failure to properly consider the 11 medical opinion evidence and Plaintiff's testimony.”). Since the court finds that the ALJ did not a 12 err in those respects, it finds no error in his assessment of the RFC.
13 Vv. CONCLUSION
v 14 For the foregoing reasons, Plaintiff's motion for summary judgment is denied. The
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