1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CYNTHIA L. R.,1 Case No. 2:19-cv-00416-AFM 12 Plaintiff, MEMORANDUM OPINION AND 13 v. ORDER AFFIRMING DECISION 14 ANDREW M. SAUL, OF THE COMMISSIONER 15 Commissioner of Social Security,2 16 Defendant. 17 18 Plaintiff filed this action seeking review of the Commissioner’s final decision 19 denying her application for supplemental security income. In accordance with the 20 Court’s case management order, the parties have filed memorandum briefs 21 addressing the merits of the disputed issues. The matter is now ready for decision. 22 BACKGROUND 23 In April 2015, Plaintiff applied for supplemental security income, alleging 24 25 1 Plaintiff’s name has been partially redacted in accordance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case 26 Management of the Judicial Conference of the United States. 27 2 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Andrew M. Saul, Commissioner of the Social Security Administration, is substituted as the proper defendant in this action. SeeFed. 28 1 disability since September 12, 2012. Plaintiff’s application was denied initially and 2 upon reconsideration. (Administrative Record [“AR”] 117-131, 133-146.) A hearing 3 took place on October 17, 2017 before an Administrative Law Judge (“ALJ”). 4 Plaintiff, who was represented by counsel, and a vocational expert (“VE”) testified 5 at the hearing. (AR 66-98.) 6 In a decision dated March 12, 2018, the ALJ found that Plaintiff suffered from 7 the following severe impairments: status post fractured left elbow; degenerative joint 8 disease of the left elbow; left shoulder impingement syndrome; obesity; left trapezius 9 and rhomboid strain; hypertension; bipolar disorder; depression; and anxiety. (AR 10 19-20.) The ALJ determined that Plaintiff’s residual functional capacity (“RFC”) 11 included the ability to perform a range of medium work as follows: Plaintiff can lift 12 up to 50 pounds occasionally and 25 pounds frequently; can sit for six hours in an 13 eight-hour workday; can stand and/or walk for six hours in an eight-hour workday; 14 can frequently handle, finger, and overhead reach with the non-dominant left upper 15 extremity; cannot climb ladders, ropes, or scaffolds; can frequently climb ramps and 16 stairs, balance, stoop, kneel, crouch, and crawl; can frequently work around hazards; 17 can occasionally work around dusts, fumes, gases, and poor ventilation; is limited to 18 unskilled work of reasoning level one or two; and is limited to occasional contact 19 with the public or co-workers. (AR 22.) Relying on the testimony of the VE, the ALJ 20 concluded that Plaintiff could perform jobs existing in significant numbers in the 21 national economy. Accordingly, the ALJ concluded that Plaintiff was not disabled. 22 (AR 27-28.) 23 The Appeals Council subsequently denied Plaintiff’s request for review (AR 24 1-6), rendering the ALJ’s decision the final decision of the Commissioner. 25 DISPUTED ISSUES 26 Plaintiff, who is proceeding pro per, has not presented any disputed issue with 27 specificity sufficient for the Court to discern. Although Plaintiff makes a conclusory 28 assertion that “Social Secuirt[y]’s own guidelines have not been followed,” (ECF No. 1 19 at 1), she does not state which “guideline” has been ignored, nor does she identify 2 any finding by the ALJ that she contends was made in violation of a guideline. 3 Instead, Plaintiff makes the following assertions in support of her complaint: 4 “Substantial medical and psychological records” prove that she has a combination of 5 limitations “severe enough to prohibit employment”; she “refutes” the findings of 6 Dr. Altman because his examination was inadequate; subsequent to the hearing she 7 was diagnosed with fibromyalgia and bulging and herniated discs; the ALJ’s 8 determination that she can lift 50 pounds occasionally and 25 pounds frequently and 9 stand six hours in an eight-hour day are “absurd” in light of the record; and it is 10 impossible for her to perform the jobs identified by the VE. (ECF No. 1 at 2-4.) 11 The Court need not consider claims that Plaintiff fails to present with any 12 specificity and that lack citation to evidence or legal authority. See, e.g., DeBerry v. 13 Comm’r of Soc. Sec. Admin., 352 F. App’x 173, 176 (9th Cir. 2009) (declining to 14 consider claim that ALJ failed properly to apply Social Security Ruling where 15 claimant did not argue the issue “with any specificity” in her opening brief and failed 16 to cite “any evidence or legal authority” in support of her position); Nazarian v. 17 Berryhill, 2018 WL 2938581, at *3–4 (C.D. Cal. June 7, 2018) (finding plaintiff 18 “provide[d] no specific argument regarding how the ALJ in this case specifically 19 erred in such respect, and thus fail[ed] to persuade the Court that a remand is 20 warranted on such conclusory grounds”). Nevertheless, the Court has liberally 21 construed Plaintiff’s memorandum in support of the complaint to raise the issues 22 discussed below. 23 STANDARD OF REVIEW 24 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 25 determine whether the Commissioner’s findings are supported by substantial 26 evidence and whether the proper legal standards were applied. See Treichler v. 27 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Substantial 28 evidence means “more than a mere scintilla” but less than a preponderance. See 1 Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d 2 1028, 1035 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a 3 reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 4 U.S. at 401. This Court must review the record as a whole, weighing both the 5 evidence that supports and the evidence that detracts from the Commissioner’s 6 conclusion. Lingenfelter, 504 F.3d at 1035. Where evidence is susceptible of more 7 than one rational interpretation, the Commissioner’s decision must be upheld. See 8 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 9 DISCUSSION 10 I. Medical Record 11 The ALJ summarized the relevant medical record. With regard to Plaintiff’s 12 mental impairments, the ALJ discussed Plaintiff’s history of bipolar disorder with 13 anxiety symptoms. (AR 23, citing AR 437.) In January 2015, Plaintiff sought 14 treatment with the Los Angeles County Department of Mental Health. At the time, 15 she reported feeling nervous and tense and said that she became easily irritated and 16 frustrated with family and friends. Plaintiff isolated herself because she did not want 17 to get angry at friends. (AR 443, 445.) She explained that she had been doing fairly 18 well for three years while on medication, but after suffering renal failure in June 19 2014, Plaintiff stopped her medication. (AR 444, 459, 467.) During her mental status 20 exam in January 2015, Plaintiff was unable to complete serial sevens and complained 21 of constant “physical anxiety.” (AR 470-471.) 22 Plaintiff was prescribed mood stabilizing medication (see AR 450-452, 459- 23 460) and,byFebruary 2015, reported that she was doing “good,” felt“balanced,” and 24 her irritability and anxiety were gone.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CYNTHIA L. R.,1 Case No. 2:19-cv-00416-AFM 12 Plaintiff, MEMORANDUM OPINION AND 13 v. ORDER AFFIRMING DECISION 14 ANDREW M. SAUL, OF THE COMMISSIONER 15 Commissioner of Social Security,2 16 Defendant. 17 18 Plaintiff filed this action seeking review of the Commissioner’s final decision 19 denying her application for supplemental security income. In accordance with the 20 Court’s case management order, the parties have filed memorandum briefs 21 addressing the merits of the disputed issues. The matter is now ready for decision. 22 BACKGROUND 23 In April 2015, Plaintiff applied for supplemental security income, alleging 24 25 1 Plaintiff’s name has been partially redacted in accordance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case 26 Management of the Judicial Conference of the United States. 27 2 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Andrew M. Saul, Commissioner of the Social Security Administration, is substituted as the proper defendant in this action. SeeFed. 28 1 disability since September 12, 2012. Plaintiff’s application was denied initially and 2 upon reconsideration. (Administrative Record [“AR”] 117-131, 133-146.) A hearing 3 took place on October 17, 2017 before an Administrative Law Judge (“ALJ”). 4 Plaintiff, who was represented by counsel, and a vocational expert (“VE”) testified 5 at the hearing. (AR 66-98.) 6 In a decision dated March 12, 2018, the ALJ found that Plaintiff suffered from 7 the following severe impairments: status post fractured left elbow; degenerative joint 8 disease of the left elbow; left shoulder impingement syndrome; obesity; left trapezius 9 and rhomboid strain; hypertension; bipolar disorder; depression; and anxiety. (AR 10 19-20.) The ALJ determined that Plaintiff’s residual functional capacity (“RFC”) 11 included the ability to perform a range of medium work as follows: Plaintiff can lift 12 up to 50 pounds occasionally and 25 pounds frequently; can sit for six hours in an 13 eight-hour workday; can stand and/or walk for six hours in an eight-hour workday; 14 can frequently handle, finger, and overhead reach with the non-dominant left upper 15 extremity; cannot climb ladders, ropes, or scaffolds; can frequently climb ramps and 16 stairs, balance, stoop, kneel, crouch, and crawl; can frequently work around hazards; 17 can occasionally work around dusts, fumes, gases, and poor ventilation; is limited to 18 unskilled work of reasoning level one or two; and is limited to occasional contact 19 with the public or co-workers. (AR 22.) Relying on the testimony of the VE, the ALJ 20 concluded that Plaintiff could perform jobs existing in significant numbers in the 21 national economy. Accordingly, the ALJ concluded that Plaintiff was not disabled. 22 (AR 27-28.) 23 The Appeals Council subsequently denied Plaintiff’s request for review (AR 24 1-6), rendering the ALJ’s decision the final decision of the Commissioner. 25 DISPUTED ISSUES 26 Plaintiff, who is proceeding pro per, has not presented any disputed issue with 27 specificity sufficient for the Court to discern. Although Plaintiff makes a conclusory 28 assertion that “Social Secuirt[y]’s own guidelines have not been followed,” (ECF No. 1 19 at 1), she does not state which “guideline” has been ignored, nor does she identify 2 any finding by the ALJ that she contends was made in violation of a guideline. 3 Instead, Plaintiff makes the following assertions in support of her complaint: 4 “Substantial medical and psychological records” prove that she has a combination of 5 limitations “severe enough to prohibit employment”; she “refutes” the findings of 6 Dr. Altman because his examination was inadequate; subsequent to the hearing she 7 was diagnosed with fibromyalgia and bulging and herniated discs; the ALJ’s 8 determination that she can lift 50 pounds occasionally and 25 pounds frequently and 9 stand six hours in an eight-hour day are “absurd” in light of the record; and it is 10 impossible for her to perform the jobs identified by the VE. (ECF No. 1 at 2-4.) 11 The Court need not consider claims that Plaintiff fails to present with any 12 specificity and that lack citation to evidence or legal authority. See, e.g., DeBerry v. 13 Comm’r of Soc. Sec. Admin., 352 F. App’x 173, 176 (9th Cir. 2009) (declining to 14 consider claim that ALJ failed properly to apply Social Security Ruling where 15 claimant did not argue the issue “with any specificity” in her opening brief and failed 16 to cite “any evidence or legal authority” in support of her position); Nazarian v. 17 Berryhill, 2018 WL 2938581, at *3–4 (C.D. Cal. June 7, 2018) (finding plaintiff 18 “provide[d] no specific argument regarding how the ALJ in this case specifically 19 erred in such respect, and thus fail[ed] to persuade the Court that a remand is 20 warranted on such conclusory grounds”). Nevertheless, the Court has liberally 21 construed Plaintiff’s memorandum in support of the complaint to raise the issues 22 discussed below. 23 STANDARD OF REVIEW 24 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 25 determine whether the Commissioner’s findings are supported by substantial 26 evidence and whether the proper legal standards were applied. See Treichler v. 27 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Substantial 28 evidence means “more than a mere scintilla” but less than a preponderance. See 1 Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d 2 1028, 1035 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a 3 reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 4 U.S. at 401. This Court must review the record as a whole, weighing both the 5 evidence that supports and the evidence that detracts from the Commissioner’s 6 conclusion. Lingenfelter, 504 F.3d at 1035. Where evidence is susceptible of more 7 than one rational interpretation, the Commissioner’s decision must be upheld. See 8 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 9 DISCUSSION 10 I. Medical Record 11 The ALJ summarized the relevant medical record. With regard to Plaintiff’s 12 mental impairments, the ALJ discussed Plaintiff’s history of bipolar disorder with 13 anxiety symptoms. (AR 23, citing AR 437.) In January 2015, Plaintiff sought 14 treatment with the Los Angeles County Department of Mental Health. At the time, 15 she reported feeling nervous and tense and said that she became easily irritated and 16 frustrated with family and friends. Plaintiff isolated herself because she did not want 17 to get angry at friends. (AR 443, 445.) She explained that she had been doing fairly 18 well for three years while on medication, but after suffering renal failure in June 19 2014, Plaintiff stopped her medication. (AR 444, 459, 467.) During her mental status 20 exam in January 2015, Plaintiff was unable to complete serial sevens and complained 21 of constant “physical anxiety.” (AR 470-471.) 22 Plaintiff was prescribed mood stabilizing medication (see AR 450-452, 459- 23 460) and,byFebruary 2015, reported that she was doing “good,” felt“balanced,” and 24 her irritability and anxiety were gone. (AR 454, 485.) In March 2015, Plaintiff made 25 good eye contact, her mood was euthymic without mood swings, and she reported 26 less anxiety and restlessness. (AR 488, 658.) In April 2015, Plaintiff said that since 27 starting the medication she did not feel anxious or irritable. In fact, she stated that 28 1 she had never felt better. She specifically denied depressive or manic symptoms. (AR 2 490.) 3 As the ALJ noted, Plaintiff continued to report feeling stable with medications 4 and generally denied anxiety, irritability, racing thoughts, and mood swings. She 5 began exercising at the gym and volunteering at her church school, which she 6 continued to do into 2017. According to treatment notes, Plaintiff indicated that she 7 tolerated her medications well. (AR 514, 516, 642, 643, 651, 655, 657.) 8 In June and July 2015, Plaintiff complained of depression and low motivation, 9 but denied anxiety, negative thoughts, and irritability. (AR 647-648.) Plaintiff was 10 prescribed Prozac for depression. In November 2015, Plaintiff reported that the 11 medication was working, and she was doing better. (AR 707-708.) Likewise, in 12 January 2016, Plaintiff reported feeling stable and without complaints. She was 13 motivated, had no anxiety, and had no depressive symptoms. (AR 710.) She reported 14 the same in March, June, and October 2016. (AR 710-711, 713, 715.) In January and 15 April 2017, Plaintiff said she felt good emotionally and denied depression, panic 16 attacks, and negative thoughts. Her sleep was good, and her anxiety was “under 17 control.” (AR 718, 719.) Plaintiff continued to teach on Sundays at church, which 18 she enjoyed. (AR 642, 711-712, 715, 718.) 19 In the course of mental health treatment, Plaintiff reported having a strong 20 support system through her church and having good relationship with her step 21 daughter and her own children. She stated that she attended church multiple times a 22 week. (See AR 476, 488, 640-641.) 23 Elena Gilman, M.D., completed a medical source statement in July 2017. 24 Dr. Gilman indicated that she had seen Plaintiff every three months since March 25 2015. She diagnosed Plaintiff with bipolar disorder in remission and stated that 26 Plaintiff’s medications did not cause side-effects. (AR 722.) In Dr. Gilman’s opinion, 27 Plaintiff’s mental impairment did not preclude her ability to understand, remember, 28 or carry out short and simple instructions; perform activities within a schedule; 1 maintain regular attendance; sustain an ordinary routine without special supervision; 2 work in coordination with others; make simple work-related decisions; interact 3 appropriately with the general public; get alone with coworkers and peers; respond 4 appropriately to changes in the work setting. (AR 723-724.). Dr. Gilman opined that 5 the following abilities would be precluded for 5% of an eight-hour workday: 6 Plaintiff’s ability to understand, remember, and carry out detailed instructions; 7 maintain attention andconcentration for extended periods oftime; complete a normal 8 work day and work week without interruptions from psychologically based 9 symptoms; perform at a consistent pace without an unreasonable number and length 10 of rest periods; and accept instructions and respond appropriately to criticism from 11 supervisors. (AR 723-724.). In addition, Dr. Gilman estimated that Plaintiff would 12 be off task 10% of the work day, would be absent from work two days per month, 13 and would be unable to complete an eight-hour work day three days per month. Last, 14 Dr. Gilman opined that Plaintiff would perform her job on a sustained basis with only 15 less than 50% efficiency. (AR 725.) At the same time, Dr. Gilman indicated that she 16 did not believe that Plaintiff was unable to obtain and retain work in a competitive 17 work setting of eight hours per day, five days per week for a continuous period of at 18 least six months. (AR 725.) 19 The ALJ also discussed the opinions of the State agency physicians. Pamela 20 Hawkins, Ph.D., opined that Plaintiff had mild restrictions of activities of daily living, 21 moderate difficulties in maintaining concentration, persistence or pace, and no 22 difficulties in maintaining social functioning. Dr. Hawkins indicated that Plaintiff 23 was able to understand, remember, and carry out simple, unskilled tasks. (AR 125- 24 129.) Elizabeth Covey, Psy.D., opined that Plaintiff had mild limitations in activities 25 of daily living and in social functioning, and moderate limitations in maintaining 26 concentration, persistence or pace. Dr. Covey agreed that Plaintiff was able to 27 understand, remember, and carry out simple routine tasks. (AR 140-144.) 28 1 With regard to Plaintiff’s physical impairments, the ALJ noted Plaintiff’s 2 history of hypertension, which has been controlled with medication since her renal 3 failure in June 2104. (AR 422-430, 679-681, 692-693, 742, 767.) The ALJ also noted 4 Plaintiff’s history of obesity. (See AR 541, 581, 732, 768.) 5 In November 2015, Plaintiff fell while walking down the street and sustained 6 a fracture to her left elbow. (AR 786.) By March 2016, however, Plaintiff’s elbow 7 pain was mostly resolved. (AR 780.) In June 2016, Plaintiff’s left elbow had full 8 range of motion with no swelling or redness. (AR 775.) Based upon a March 2017 9 x-ray, Plaintiff was diagnosed with a left elbow deformity and effusion which caused 10 chronic elbow pain radiating along the entire left arm. (AR 739, 742, 809.) 11 In January 2016, Plaintiff complained of neck and back pain. (AR 783.) In 12 March 2016, Plaintiff indicated her neck and back pain “comes and goes.” (AR 780.) 13 Examinationrevealed mild tenderness on the base of her cervical spine and left lower 14 lateral back with palpation. Her range of motion was restricted secondary to pain. 15 Plaintiff’s motor strength was normal, and her sensory exam was intact. (AR 780- 16 781.) X-rays revealed mild degenerative joint disease and spondylosis. Plaintiff was 17 prescribed topical analgesics and Tylenol with codeine for pain. (AR 775-776, 781.) 18 In May 2017, Plaintiff was examined by Insoo Kim, M.D. Dr. Kim noted mild 19 effusion of the left elbow joint with tenderness, but full range of motion. X-rays 20 showed slight degenerative changes of the radial head of the elbow. Dr. Kim 21 recommended steroid injection. (AR 808-811.) Plaintiff also complained of left 22 shoulder pain. Treatment notes from August 2017 revealed tenderness in the 23 subacromial space and left AC joint, mild limitation of range of motion with pain, 24 and positive impingement of the left shoulder. While x-rays were within normal 25 limits, Dr. Kim opined that Plaintiff had shoulder impingement syndrome and a 26 possible rotator cuff tear. She recommended a trial of steroid injections to the left 27 shoulder. (AR 806.) 28 1 Plaintiff underwent a consultative orthopedic examination in November 2017. 2 Jeff Altman, M.D., found full pain-free range of motion of the neck, but noted mild 3 to moderate tenderness along the left trapezius and left rhomboid musculature. 4 Straight leg raise test was negative. Plaintiff had full range of motion of the left 5 shoulder with slight tenderness in the bicipital groove and no tenderness to palpation 6 at the acromioclavicular joint. Dr. Altman noted mild tenderness at the left lateral 7 epicondyle and over the olecranon process. Plaintiff was able to perform pronation 8 and supination as well as elbow flexion and extension. Plaintiff’s sensation was intact 9 to all digits, and her neurological examination was intact. (AR 814-819.) Dr. Altman 10 opined that Plaintiff can lift and carry 50 pounds occasionally and 25 pounds 11 frequently; can sit, stand, and walk without restriction; can frequently bend, crouch, 12 kneel, crawl, and stoop; can frequently climb, balance, walk on uneven terrain or 13 work at heights; has no overhead restrictions; can perform fine and gross 14 manipulation without limits with her right hand and frequently with her left hand. 15 (AR 819-820.) 16 The ALJ noted that both State agency physicians found Plaintiff’s physical 17 impairments to be non-severe, although one noted possible limitations to temperature 18 extremes and humidity in order to avoid dehydration. (AR 122-125, 139-140.) 19 II. The ALJ’s RFC Assessment 20 In determining a claimant’s RFC, an ALJ must consider all relevant evidence 21 in the record. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). The 22 ALJ need not include properly rejected evidence or subjective complaints. See 23 Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005); Batson v. Comm’r of Soc. 24 Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004). The Court considers the ALJ’s 25 determination in the context of “the entire record as a whole,” and if the “evidence is 26 susceptible to more than one rational interpretation, the ALJ’s decision should be 27 upheld.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (internal 28 quotation marks omitted). 1 As set forth in detail above, the ALJ considered all of the medical evidence as 2 well as the medical opinions. With respect to Plaintiff’s mental impairment, the ALJ 3 concluded that Plaintiff has a mild limitation in understanding, remembering, or 4 applying information. In particular, the ALJ noted that Plaintiff’s initial examination 5 showed difficulty with serial sevens, but subsequent examinations showed that she 6 performed well with treatment. (AR 20.) Next, the ALJ concluded that Plaintiff has 7 a moderate limitation in interacting with others, noting that despite Plaintiff’s 8 assertion that she became easily frustrated and irritated with family and friends, she 9 later reported decreased symptoms and having a strong support system. (AR 21.) The 10 ALJ next found that Plaintiff has a moderate limitation in her ability to concentrate, 11 persist, or maintain pace, citing Plaintiff’s mental status exams after she began 12 medication. (AR 21.) Finally, the ALJ concluded that Plaintiff has a mild limitation 13 in her ability to adapt or manage herself, noting that she went to church multiple 14 times a week, had been teaching children at church on Sundays for several years, had 15 exercised at a gym, and was able to prepare meals, do laundry and use public 16 transportation. (AR 21; see AR 316-318.) 17 The ALJ found the opinions of the State agency physicians were consistent 18 with the record and restricted Plaintiff to simple routine tasks. However, the ALJ 19 gave Plaintiff’s allegations of isolation and problems with people “the benefit of the 20 doubt” and incorporated into the RFC additional limitations in interacting with 21 others. (AR 22.) 22 The ALJ’s determination that Plaintiff’s mental impairments restricted her to 23 unskilled work with limited contact with others is supported by substantial evidence 24 including, among other things, the treatment notes consistently reflecting that 25 Plaintiff’s mental health symptoms were well-controlled by medication. 26 With regard to the medical opinions, the ALJ’s RFC is consistent with and 27 supported by the opinions of the State agency physicians. In large part, the ALJ’s 28 RFC assessment is also consistent with Dr. Gilman’s opinion. While the ALJ rejected 1 Dr. Gilman’s opinions regarding absenteeism and break needs, Plaintiff does not 2 argue that the ALJ committed error in doing so. Indeed, Plaintiff explicitly objects to 3 Dr. Gilman’s opinions that she would be off task 10% of the workday, absent 3 days 4 a month, and able to perform at 50% efficiency. (ECF No. 19 at 3.) According to 5 Plaintiff, Dr. Gilman’s opinion should be disregarded because Dr. Gilman is a 6 psychiatrist who essentially prescribed medication (rather than a psychologist or 7 therapist) and because she only infrequently met with Plaintiff and, even then, 8 engaged in limited interaction with Plaintiff. (ECF No. 19 at 3.) Thus, Plaintiff’s 9 arguments challenging the weight to be afforded Dr. Gilman’s opinion supports the 10 ALJ’s determination to discount some of those opinions. 11 As for Plaintiff’s physical impairments, the ALJ noted the mild objective 12 findings of tenderness to palpation, but otherwise full range of motion of the neck, 13 back, and shoulder, and elbow. (AR 25, 816-817.) Furthermore, the ALJ relied upon 14 the opinion of examining physician Dr. Altman, as well as the opinions of the non- 15 examining Stage agency physicians. (AR 25-26.) These opinions constitute 16 substantial evidence supporting the ALJ’s RFC determination. See Thomas v. 17 Barnhart, 278 F.3d 947, 958-959 (9th Cir. 2002) (“opinions of non-treating or non- 18 examining physicians may also serve as substantial evidence when the opinions are 19 consistent with independent clinical findings or other evidence in the record”); 20 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (consultative examiner’s 21 opinion on its own constituted substantial evidence, because it rested on independent 22 examination of claimant). 23 Plaintiff complains that Dr. Altman examined her after the hearing and that his 24 examination “consisted of pricking my fingers + toes with an unbent paper clip and 25 looking at + feeling my neck and back. No x-rays, ultrasound were taken to back up 26 his diagnosis.” (ECF No. 19 at 2.) Plaintiff raised the same objections to the ALJ, 27 who rejected them. The ALJ noted that Dr. Altman performed a physical examination 28 and his opinion was consistent with the entire record. (AR 25-26.) Plaintiff also 1 further alleges that the conclusion that she is able to lift 50 pounds occasionally and 2 25 pounds frequently and can stand for 6 hours in an eight-hour workday are 3 “absolutely false as well documented by records of advancing age (60 now), obesity, 4 high blood pressure, bi-polar II, anxiety + depression and the stupefying effects of 5 the medications!” (ECF No. 19 at 3.) At best, Plaintiff’s arguments amount to a 6 disagreement as to how the evidence should be interpreted. However, so long as the 7 ALJ’s interpretation of the record is rational and supported by substantial evidence, 8 which it is here, the Court may not disturb it. See Lewis v. Astrue, 498 F.3d 909, 911 9 (9th Cir. 2007) (“[I]f evidence is susceptible of more than one rational interpretation, 10 the decision of the ALJ must be upheld”); see generally Biestek v. Berryhill, 139 11 S. Ct. 1149, 1154 (2019) (observing that in the social security context, the threshold 12 for “substantial evidence” is “not high”). 13 For the foregoing reasons, the ALJ’s RFC assessment must be affirmed. See 14 Bayliss, 427 F.3d at1217 (“We will affirm the ALJ’s determination of Bayliss’s RFC 15 if the ALJ applied the proper legal standard and his decision is supported by 16 substantial evidence.”). 17 III. Plaintiff’s Remaining Contentions 18 Several other of Plaintiff’s contentionswarrant brief discussion. First, Plaintiff 19 states that, after the ALJ issued her decision, Plaintiff was diagnosed with 20 fibromyalgia and bulging and herniated discs in her neck. According to Plaintiff, she 21 “had these conditions at the time of [the] hearing but had not yet been properly 22 diagnosed due to the lag in referrals etc. in the medical system.” (ECF No. 19 at 2- 23 3.)3 To the extent that Plaintiff contends that she has new impairments or that her 24 condition deteriorated since the time of the ALJ’s decision, her contentions are 25 outside of this Court’s review. See generally Harman v. Apfel, 211 F.3d 1172, 1177 26 (9th Cir. 2000) (“judicial review in cases under the Social Security Act is limited to 27 3 Plaintiff states that the related records and ultrasound “are included,” (ECF No. 19 at 2), but she 28 1 a review of the administrative record for a determination of whether the 2 Commissioner’s decision is supported by substantial evidence in the record”); 3 London v. Colvin, 2014 WL 12557986, at *7 (C.D. Cal. Dec. 29, 2014) (the Court 4 lacks jurisdiction to reverse the Commissioner’s decision based on evidence that is 5 not part of the administrative record). 6 Second, Plaintiff disagrees with the VE’s opinion that she is capable of 7 performing specific jobs. According to Plaintiff, considering her physical and mental 8 impairments, it is impossible for her to perform the jobs identified by the VE. (ECF 9 No. 19 at 3-4.) Plaintiff’s argument is unavailing. The hypothetical that the ALJ 10 posed to the VE contained all of the limitations that the ALJ found credible and 11 supported by substantial evidence in the record. Accordingly, the ALJ’s reliance on 12 the VE’s testimony was proper. See Bayliss, 427 F.3d at 1217-1218 (ALJ properly 13 relied on VE testimony where hypothetical posed to VE contained all limitations the 14 ALJ found credible and supported). Contrary to Plaintiff’s suggestion, the ALJ was 15 not required to include limitations that were not in her RFC assessment. Rollins v. 16 Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Essentially, Plaintiff’s argument 17 merely restates her disagreement with the ALJ’s RFC determination. 18 Finally, Plaintiff mentions that her medications cause drowsiness and have 19 “stupefying effects.” (ECF No. 19 at 3-4.) Even liberally construed, these assertions 20 do not fairly present a claim that the ALJ erred in discounting Plaintiff’s testimony. 21 See, e.g., DeBerry, 352 F. App’x at 176 (declining to consider claim that ALJ failed 22 properly to apply Social Security Ruling where claimant did not argue the issue “with 23 any specificity” in her opening brief and failed to cite “any evidence or legal 24 authority” in support of her position); Nazarian, 2018 WL 2938581, at *4 (plaintiff 25 “provides no specific argument regarding how the ALJ in this case specifically erred 26 in such respect, and thus fails to persuade the Court that a remand is warranted on 27 such conclusory grounds”); Moody v. Berryhill, 245 F. Supp. 3d 1028, 1033 (C.D. 28 Ill. 2017) (where plaintiff does not clearly identify the ALJ’s problematic findings or 1 || legal support, court “cannot fill the void by crafting arguments and performing the 2 || necessary legal research”). Moreover, the Court notes that the ALJ discussed 3 || Plaintiff's subjective complaints, including her allegations regarding medication side 4 || effects, but rejected them. The ALJ provided several reasons for discounting 5 | Plaintiff's credibility, including (a) Plaintiff's contradictory statements in treatment 6 || records in which she reported that the medications worked and that she tolerated them 7 || well; (b) contradictions between Plaintiff's allegations and the medical record that 8 || showed Plaintiff's symptoms responded to treatment; (c) inconsistency between 9 || Plaintiff's allegations of disabling symptoms and her ability to perform daily 10 || activities including preparing meals, attending church multiple times a week, and 11 || teaching classes on Sundays; and (d) the lack of objective medical evidence. The ALJ 12 || also noted evidence that Plaintiff stopped working because the woman she was caring 13 || for moved away. (AR 20-26; see AR 651, 718.) In sum, Plaintiff has not presented a 14 || legitimate challenge to the ALJ’s credibility determination and the Court’s review 15 || does not suggest that the ALJ erred. See, generally, Ghanim v. Colvin, 763 F.3d 1154, 16 | 1163 (9th Cir. 2014) (factors ALJ may consider when making credibility 17 || determination include lack of objective medical evidence, claimant’s treatment 18 || history, claimant’s daily activities, and inconsistencies in testimony). 19 ORDER 20 IT IS THEREFORE ORDERED that Judgment be entered affirming the 21 || decision of the Commissioner and dismissing this action with prejudice. 22 23 || DATED: 12/11/2019 24 Chby Moke
26 ALEXANDER F. MacKINNON UNITED STATES MAGISTRATE JUDGE 27 28 13