Elben v. Saul

• Court: District Court, E.D. Washington
• Decided: April 15, 2020
• Docket: 2:19-cv-00314
• Status: Unknown

Opinion

1 2 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 Apr 15, 2020 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 REBECCA E.,1 No. 2:19-cv-00314-MKD Plaintiff, 8 ORDER DENYING PLAINTIFF’S vs. MOTION FOR SUMMARY 9 JUDGMENT AND GRANTING ANDREW M. SAUL, DEFENDANT’S MOTION FOR 10 COMMISSIONER OF SOCIAL SUMMARY JUDGMENT SECURITY, 11 Defendant. ECF Nos. 13, 14 12 13 Before the Court are the parties’ cross-motions for summary judgment. ECF 14 Nos. 13, 14. The parties consented to proceed before a magistrate judge. ECF No. 15 6. The Court, having reviewed the administrative record and the parties’ briefing, 16 17

18 1 To protect the privacy of plaintiffs in social security cases, the undersigned 19 identifies them by only their first names and the initial of their last names. See 20 LCivR 5.2(c). 2 1 is fully informed. For the reasons discussed below, the Court denies Plaintiff’s 2 motion, ECF No. 13, and grants Defendant’s motion, ECF No. 14.

3 JURISDICTION 4 The Court has jurisdiction over this case pursuant to 42 U.S.C. §§ 405(g); 5 1383(c)(3).

6 STANDARD OF REVIEW 7 A district court’s review of a final decision of the Commissioner of Social 8 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 9 limited; the Commissioner’s decision will be disturbed “only if it is not supported

10 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 11 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 12 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159

13 (quotation and citation omitted). Stated differently, substantial evidence equates to 14 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 15 citation omitted). In determining whether the standard has been satisfied, a 16 reviewing court must consider the entire record as a whole rather than searching

17 for supporting evidence in isolation. Id. 18 In reviewing a denial of benefits, a district court may not substitute its 19 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152,

20 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 2 1 rational interpretation, [the court] must uphold the ALJ’s findings if they are 2 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674

3 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 4 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 5 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.”

6 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 7 decision generally bears the burden of establishing that it was harmed. Shinseki v. 8 Sanders, 556 U.S. 396, 409-10 (2009). 9 FIVE-STEP EVALUATION PROCESS

10 A claimant must satisfy two conditions to be considered “disabled” within 11 the meaning of the Social Security Act. First, the claimant must be “unable to 12 engage in any substantial gainful activity by reason of any medically determinable

13 physical or mental impairment which can be expected to result in death or which 14 has lasted or can be expected to last for a continuous period of not less than twelve 15 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s 16 impairment must be “of such severity that he is not only unable to do his previous

17 work[,] but cannot, considering his age, education, and work experience, engage in 18 any other kind of substantial gainful work which exists in the national economy.” 19 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).

20 2 1 The Commissioner has established a five-step sequential analysis to 2 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§

3 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). At step one, the Commissioner 4 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 5 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the

6 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 7 404.1520(b), 416.920(b). 8 If the claimant is not engaged in substantial gainful activity, the analysis 9 proceeds to step two. At this step, the Commissioner considers the severity of the

10 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 11 claimant suffers from “any impairment or combination of impairments which 12 significantly limits [his or her] physical or mental ability to do basic work

13 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 14 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 15 however, the Commissioner must find that the claimant is not disabled. 20 C.F.R. 16 §§ 404.1520(c), 416.920(c).

17 At step three, the Commissioner compares the claimant’s impairment to 18 severe impairments recognized by the Commissioner to be so severe as to preclude 19 a person from engaging in substantial gainful activity. 20 C.F.R. §§

20 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more 2 1 severe than one of the enumerated impairments, the Commissioner must find the 2 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d).

3 If the severity of the claimant’s impairment does not meet or exceed the 4 severity of the enumerated impairments, the Commissioner must pause to assess 5 the claimant’s “residual functional capacity.” Residual functional capacity (RFC),

6 defined generally as the claimant’s ability to perform physical and mental work 7 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ 8 404.1545(a)(1), 416.945(a)(1), is relevant to both the fourth and fifth steps of the 9 analysis.

10 At step four, the Commissioner considers whether, in view of the claimant’s 11 RFC, the claimant is capable of performing work that he or she has performed in 12 the past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).

13 If the claimant is capable of performing past relevant work, the Commissioner 14 must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). 15 If the claimant is incapable of performing such work, the analysis proceeds to step 16 five.

17 At step five, the Commissioner considers whether, in view of the claimant’s 18 RFC, the claimant is capable of performing other work in the national economy. 19 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this determination,

20 the Commissioner must also consider vocational factors such as the claimant’s age, 2 1 education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 2 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the

3 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 4 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other 5 work, the analysis concludes with a finding that the claimant is disabled and is

6 therefore entitled to benefits. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 7 The claimant bears the burden of proof at steps one through four above. 8 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 9 step five, the burden shifts to the Commissioner to establish that 1) the claimant is

10 capable of performing other work; and 2) such work “exists in significant numbers 11 in the national economy.” 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2); Beltran v. 12 Astrue, 700 F.3d 386, 389 (9th Cir. 2012).

13 ALJ’S FINDINGS 14 On April 24, 2017, Plaintiff applied both for Title II disability insurance 15 benefits and Title XVI supplemental security income benefits alleging a disability 16 onset date of June 19, 2016. Tr. 181, 196, 331-47. The applications were denied

17 initially and on reconsideration. Tr. 243-51, 255-77. Plaintiff appeared before an 18 administrative law judge (ALJ) on June 4, 2018. Tr. 132-80. On August 22, 2018, 19 the ALJ denied Plaintiff’s claim. Tr. 12-33.

20 2 1 At step one of the sequential evaluation process, the ALJ found that Plaintiff 2 had engaged in substantial gainful activity from June 2016 through September

3 2016. Tr. 17. The ALJ also found that there had been a continuous 12-month 4 period during which Plaintiff did not engage in substantial gainful activity. Tr. 18. 5 At step two, the ALJ found that Plaintiff had the following severe impairments:

6 major depressive disorder, posttraumatic stress disorder (PTSD), social phobia, and 7 obsessive compulsive disorder. Tr. 18 8 At step three, the ALJ found that Plaintiff did not have an impairment or 9 combination of impairments that met or medically equaled the severity of a listed

10 impairment. Tr. 18. The ALJ then concluded that Plaintiff had the RFC to 11 perform a full range of work at all exertional levels with the following 12 nonexertional limitations:

13 [Plaintiff] is limited to simple, routine tasks with a reasoning level of 2 or less; she requires a routine, predictable work environment with no 14 more than occasional changes and simple decision-making; and she is limited to occasional, superficial contact with the public, coworkers, 15 and supervisors.

16 Tr. 19. 17 At step four, the ALJ found that Plaintiff was unable to perform any past 18 relevant work. Tr. 24. At step five, the ALJ found that, considering Plaintiff’s 19 age, education, work experience, RFC, and testimony from the vocational expert, 20 there were jobs that existed in significant numbers in the national economy that 2 1 Plaintiff could perform, such as laundry worker II, mail clerk, and printed circuit 2 board assembler. Tr. 25. Alternatively, the ALJ found that Plaintiff was capable

3 of other work even if she were physically limited to the light exertional level, with 4 a sit/stand option at will; no climbing ladders, ropes, or scaffolds but occasionally 5 performing all other postural activities; with no concentrated exposure to extreme

6 cold, vibration, or hazards. Tr. 25. The vocational expert testified that given all of 7 these factors, Plaintiff would be able to perform the jobs of collator operator, 8 office helper, and mail clerk. Tr. 25. Therefore, the ALJ concluded that Plaintiff 9 was not under a disability, as defined in the Social Security Act, from the alleged

10 onset date of June 19, 2016, though the date of the decision. Tr. 25. 11 On July 26, 2019, the Appeals Council denied review of the ALJ’s decision, 12 Tr. 1-6, making the ALJ’s decision the Commissioner’s final decision for purposes

13 of judicial review. See 42 U.S.C. § 1383(c)(3). 14 ISSUES 15 Plaintiff seeks judicial review of the Commissioner’s final decision denying 16 her disability insurance benefits under Title II and supplemental security income

17 benefits under Title XVI of the Social Security Act. Plaintiff raises the following 18 issues for review: 19

20 2 1 1. Whether the ALJ conducted a proper step-two analysis; 2 2. Whether the Appeals Council erred in refusing to consider medical

3 evidence submitted after the ALJ’s decision; 4 3. Whether the ALJ conducted a proper step-three analysis; 5 4. Whether the ALJ properly evaluated Plaintiff’s symptom claims; and

6 5. Whether the ALJ properly incorporated the evidence into the RFC. 7 ECF No. 13 at 3. 8 DISCUSSION 9 A. Step Two

10 Plaintiff contends the ALJ erred by failing to identify Plaintiff’s lumbar 11 spine condition as a severe impairment at step two. ECF No. 13 at 6-9. At step 12 two of the sequential process, the ALJ must determine whether the claimant suffers

13 from a “severe” impairment, i.e., one that significantly limits her physical or 14 mental ability to do basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). 15 To establish a severe impairment, the claimant must first demonstrate that the 16 impairment results from anatomical, physiological, or psychological abnormalities

17 that can be shown by medically acceptable clinical or laboratory diagnostic 18 techniques. 20 C.F.R. §§ 404.1521, 416.921. In other words, the claimant must 19 establish the existence of the physical or mental impairment through objective

20 medical evidence (i.e., signs, laboratory findings, or both) from an acceptable 2 1 medical source; the medical impairment cannot be established by the claimant’s 2 statement of symptoms, a diagnosis, or a medical opinion. 20 C.F.R. §§ 404.1521,

3 416.921. 4 An impairment may be found to be not severe when “medical evidence 5 establishes only a slight abnormality or a combination of slight abnormalities

6 which would have no more than a minimal effect on an individual’s ability to 7 work…” Social Security Ruling (SSR) 85-28 at *3. Similarly, an impairment is 8 not severe if it does not significantly limit a claimant’s physical or mental ability to 9 do basic work activities; which include walking, standing, sitting, lifting, pushing,

10 pulling, reaching, carrying, or handling; seeing, hearing, and speaking; 11 understanding, carrying out and remembering simple instructions; using judgment, 12 responding appropriately to supervision, coworkers and usual work situations; and

13 dealing with changes in a routine work setting. 20 C.F.R. §§ 404.1522(a), 14 416.922(a); SSR 85-28.2 15 Step two is “a de minimus screening device [used] to dispose of groundless 16 claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). “Thus, applying

18 2 The Supreme Court upheld the validity of the Commissioner’s severity 19 regulation, as clarified in SSR 85-28, in Bowen v. Yuckert, 482 U.S. 137, 153-54 20 (1987). 2 1 our normal standard of review to the requirements of step two, [the Court] must 2 determine whether the ALJ had substantial evidence to find that the medical

3 evidence clearly established that [Plaintiff] did not have a medically severe 4 impairment or combination of impairments.” Webb v. Barnhart, 433 F.3d 683, 687 5 (9th Cir. 2005).

6 Here, the ALJ concluded that Plaintiff’s major depressive disorder, 7 posttraumatic stress disorder, social phobia, and obsessive compulsive disorder 8 were severe impairments. Tr. 18. The ALJ also concluded that Plaintiff had the 9 following non-severe impairments: lumbar facet disease, tachycardia,

10 hypothyroidism, rib fracture, JBS, urinary tract infections, intermittent diarrhea, 11 unilateral nephrectomy, vitamin deficiencies, and alcohol abuse. Tr. 18. The ALJ 12 determined the record showed that these impairments did not cause significant

13 vocational limitations for at least 12 consecutive months. Tr. 18. 14 Plaintiff asserts the ALJ erred by finding that her back pain was not a severe 15 impairment. ECF No. 13 at 6. Although Plaintiff cites treatment notes where 16 lumbar pain was diagnosed, observed, or reported, the “mere diagnosis of an

17 impairment … is not sufficient to sustain a finding of disability.” Key v. Heckler, 18 754 F.2d 1545, 1549 (9th Cir. 1985). Plaintiff identifies no evidence in the record 19 that her back pain had any impact on her basic work abilities. ECF No. 13 at 6-9.

20 While there were notations in the medical record that Plaintiff endorsed symptoms 2 1 of back pain, see, e.g., Tr. 983, 997, 1026, 1030, 1777, 1802, the ALJ’s finding that 2 Plaintiff’s back condition was not a severe impairment is supported by objective

3 medical evidence and clinical observations. See, e.g., Tr. 1952 (January 9, 2018: 4 results from Plaintiff’s electromyography (EMG) were normal); Tr. 1662-63 (June 5 22, 2016: x-rays of Plaintiff’s lumbar and thoracic spine were unremarkable); Tr.

6 1273-74; 1319-24 (August 6, 2014 and December 2016: MRIs of Plaintiff’s 7 lumbar, cervical, and thoracic spine were unremarkable); Tr. 997, 1030, 1776, 8 1804-05 (physical examinations were unremarkable); Tr. 145 (June 4, 2018: James 9 McKenna, M.D., testified that Plaintiff had no severe physical impairments); Tr.

10 1475-1508 (March 31, 2017 and May 3, 2017: upon independent medical 11 examination, neurologist Barbara Jessen, M.D., orthopedist Anne McCormick, 12 M.D., and physical medicine and rehabilitation specialist Dennis Chong, M.D.,

13 opined that Plaintiff had no objective abnormalities or physical reasons to prevent 14 her from working). On this record, the ALJ reasonably concluded that Plaintiff’s 15 back pain was not a severe impairment. Tr. 18. 16 Moreover, Plaintiff has failed to establish any harmful error resulting from

17 the ALJ’s decision finding that her back pain was a non-severe impairment. Even 18 if the ALJ should have determined that her back condition was a severe 19 impairment, any error would be harmless because the step was resolved in

20 Plaintiff’s favor. See Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d 1050, 1055 2 1 (9th Cir. 2006); Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). Further, the 2 ALJ found that Plaintiff was capable of working as a mail clerk, which is classified

3 as a light exertional level job, and as a printed circuit board assembler, which is 4 classified as a sedentary exertional level job. Tr. 25. The ALJ also made 5 alternative RFC findings at step five and determined that Plaintiff was capable of

6 other work even if she were physically limited to the light exertional level, with a 7 sit/stand option at will; no climbing ladders, ropes, or scaffolds but occasionally 8 performing all other postural activities; with no concentrated exposure to extreme 9 cold, vibration, or hazards. Tr. 25. The vocational expert testified that given all of

10 these factors, Plaintiff would be able to perform the jobs of collator operator, office 11 helper, and mail clerk. Tr. 25. Plaintiff makes no showing that her back pain 12 created limitations not already accounted for in the RFC. See Shinseki, 556 U.S. at

13 409-10 (the party challenging the ALJ’s decision bears the burden of showing 14 harm). Thus, the ALJ’s step two finding is legally sufficient. 15 B. Additional Evidence Submitted to the Appeals Council 16 Plaintiff argues the Appeals Council incorrectly determined that additional

17 evidence submitted to it was not material, and therefore erroneously failed to 18 consider the additional evidence. ECF No. 13 at 17-19. The Social Security 19 regulations permit a claimant to submit additional evidence to the Appeals

20 Council. 20 C.F.R. §§ 404.900(b), 416.1400(b). The Appeals Council is required 2 1 to consider new and material evidence if it “relates to the period on or before the 2 date of the [ALJ’s] hearing decision” and “there is a reasonable probability that the

3 additional evidence would change the outcome of the decision.” 20 C.F.R. §§ 4 404.970(a)(5) & (b), 416.1470(a)(5) & (b) (2017). Evidence that meets the criteria 5 is to be considered by the Appeals Council and incorporated into the administrative

6 record as evidence, “which the district court must consider when reviewing the 7 Commissioner’s final decision for substantial evidence.” Brewes v. Comm’r of 8 Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012). Pursuant to agency policy, 9 a copy of evidence not meeting the criteria and therefore not considered by the

10 Appeals Council is nonetheless included as part of the certified administrative 11 record filed with this Court, although by law, the rejected evidence falls outside the 12 scope of the Court’s substantial-evidence review. See Soc. Sec. Admin. Hrgs.,

13 Appeals, & Litig. Law Man. (“HALLEX”), HALLEX § I-3-5-20, available at 14 https://www.ssa.gov/OP_Home/hallex/I-03/I-3-5-20.html (addressing how 15 additional evidence is to be handled). 16 Here, although the additional evidence concerning Plaintiff’s back pain does

17 relate to the period at issue, this evidence is not material. See Tr. 2 (The additional 18 evidence “does not show a reasonable probability that it would change the outcome 19 of the decision.”). New evidence is material if it creates a reasonably possibility

20 that the outcome of the case would be different. Staley v. Massanari, 17 F. App’x 2 1 609, 610 (9th Cir. 2001) (interpreting Appeals Council’s decision and citing Booz 2 v. Sec’y of Health & Human Servs., 734 F.2d 1378, 1380-81 (9th Cir. 1984)).

3 Plaintiff argues that the additional records show “continuing deficits” in Plaintiff’s 4 lumbar spine, including a disc bulge at L3-L4. ECF No. 13 at 18 (citing Tr. 98- 5 99). However, the records cited by Plaintiff indicate that Plaintiff had “mild,

6 posterior bulging of the intervertebral disc without associated nerve root 7 impingement or spinal stenosis” at L3-L4. Tr. 99-100. Further, in the additional 8 records, Plaintiff’s provider noted that her MRI “shows no spinal stenosis and only 9 mild degenerative disc disease (which is not uncommon).” Tr. 98. Plaintiff makes

10 no further argument and does not explain how these records demonstrate that she 11 was more limited than the ALJ found, and thus, Plaintiff fails to show a reasonable 12 probability that this additional evidence would change the outcome of the decision.

13 For these reasons, the Court finds that the Appeals Council did not err in declining 14 to consider and exhibit the additional evidence. 15 C. Step Three 16 Plaintiff contends that the ALJ erred by finding Plaintiff’s mental

17 impairments did not meet listings 12.04 and 12.15. ECF No. 13 at 12-15. At step 18 three, the ALJ must determine if a claimant’s impairments meet or equal a listed 19 impairment. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). The Listing of

20 Impairments “describes for each of the major body systems impairments [which 2 1 are considered] severe enough to prevent an individual from doing any gainful 2 activity, regardless of his or her age, education or work experience.” 20 C.F.R. §§

3 404.1525; 416.925. “Listed impairments are purposefully set at a high level of 4 severity because ‘the listings were designed to operate as a presumption of 5 disability that makes further inquiry unnecessary.’ ” Kennedy v. Colvin, 738 F.3d

6 1172, 1176 (9th Cir. 2013) (citing Sullivan v. Zebley, 493 U.S. 521, 532 (1990)). 7 “Listed impairments set such strict standards because they automatically end the 8 five-step inquiry, before residual functional capacity is even considered.” 9 Kennedy, 738 F.3d at 1176. If a claimant meets the listed criteria for disability, she

10 will be found to be disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii); 416.920(a)(4)(iii). 11 “To meet a listed impairment, a claimant must establish that he or she meets 12 each characteristic of a listed impairment relevant to his or her claim.” Tackett,

13 180 F.3d at 1099 (emphasis in original); 20 C.F.R. §§ 404.1525(d), 416.925(d). 14 “To equal a listed impairment, a claimant must establish symptoms, signs and 15 laboratory findings ‘at least equal in severity and duration’ to the characteristics of 16 a relevant listed impairment . . . .” Tackett, 180 F.3d at 1099 (emphasis in original)

17 (quoting 20 C.F.R. § 404.1526(a)). “If a claimant suffers from multiple 18 impairments and none of them individually meets or equals a listed impairment, 19 the collective symptoms, signs and laboratory findings of all of the claimant’s

20 impairments will be evaluated to determine whether they meet or equal the 2 1 characteristics of any relevant listed impairment.” Tackett, 180 F.3d at 1099. 2 However, “ ‘[m]edical equivalence must be based on medical findings,” and “[a]

3 generalized assertion of functional problems is not enough to establish disability at 4 step three.’ ” Id. at 1100 (quoting 20 C.F.R. § 404.1526(a)). 5 The claimant bears the burden of establishing her impairment (or

6 combination of impairments) meets or equals the criteria of a listed impairment. 7 Burch, 400 F.3d at 683. “An adjudicator’s articulation of the reason(s) why the 8 individual is or is not disabled at a later step in the sequential evaluation process 9 will provide rationale that is sufficient for a subsequent reviewer or court to

10 determine the basis for the finding about medical equivalence at step 3.” Social 11 Security Ruling (SSR) 17-2P, 2017 WL 3928306, at *4 (effective March 27, 12 2017).

13 Here, the ALJ found that Plaintiff’s impairments and combinations of 14 impairments did not meet or equal any listings, including listings 12.04 15 (depressive, bipolar and related disorders), and 12.15 (trauma- and stressor-related 16 disorders). Tr. 18. The Paragraph B criteria associated with these two listings are

17 met if the impairment results in an “extreme” limitation of one, or a “marked” 18 limitation of two, of the following areas of mental functioning: understand, 19 remember, or apply information; interact with others; concentrate, persist, or

20 maintain pace; and adapt or manage oneself. 20 C.F.R. § 404, Subpart P, 2 1 Appendix I. A marked limitation means functioning independently, appropriately, 2 effectively, and on a sustained basis is seriously limited. Id. An extreme limitation

3 is the inability to function independently, appropriately, effectively, and on a 4 sustained basis. Id. 5 The ALJ found that Plaintiff had moderate restrictions in concentrating,

6 persisting, or maintaining pace. Tr. 19. This area of mental functioning refers to a 7 claimant’s ability “to focus attention on work activities and stay on task at a 8 sustained rate.” 20 C.F.R. § 404, Subpart P, Appendix I. The ALJ noted that 9 while Plaintiff alleged ongoing anxiety, particularly hypervigilance and difficulty

10 with concentration and attention, upon mental status examination her cognitive 11 functions were good, she was not distracted or inattentive, and she did not have to 12 be redirected. Tr. 19 (citing Tr. 1828-29). Plaintiff does not challenge this finding,

13 ECF No. 13 at 12-15, thus, any challenge is waived. See Carmickle v. Comm’r, 14 Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (determining Court may 15 decline to address on the merits issues not argued with specificity); Kim v. Kang, 16 154 F.3d 996, 1000 (9th Cir. 1998) (the Court may not consider on appeal issues

17 not “specifically and distinctly argued” in the party’s opening brief). 18 The ALJ found that Plaintiff had moderate difficulties in adapting or 19 managing oneself. Tr. 19. This area of mental functioning refers to a claimant’s

20 ability “to regulate emotions, control behavior, and maintain well-being in a work 2 1 setting.” 20 C.F.R. § 404, Subpart P, Appendix I. The ALJ highlighted that the 2 record showed Plaintiff was regularly well-groomed and appropriately dressed,

3 however her “improved but ongoing anxiety would reasonably limit her ability to 4 handle workplace changes.” Tr. 19 (citing Tr. 1566-1947). Plaintiff does not 5 challenge this finding, ECF No. 13 at 12-15, thus any challenge is waived. See

6 Carmickle, 533 F.3d at 1161 n.2; Kim, 154 F.3d at 1000. 7 The ALJ found that Plaintiff had moderate restrictions in understanding, 8 remembering, or applying information. Tr. 18. This area of mental functioning 9 refers to a claimant’s ability “to learn, recall, and use information to perform work

10 activities.” 20 C.F.R. § 404, Subpart P, Appendix I. The ALJ observed that upon 11 mental status examination, Plaintiff’s memory functions were good, with Plaintiff 12 able to recall details about her past medical history and specifics of recent and

13 remote events. Tr. 18 (citing Tr. 1888). Plaintiff challenges the ALJ’s conclusion, 14 arguing that her ability to understand, remember, and apply information is 15 markedly impacted by her mental health conditions. ECF No. 13 at 15; see, e.g., 16 Tr. 1211 (January 6, 2017: during a confrontational appointment with a provider,

17 Plaintiff allegedly asserted the doctor made several statements he did not make, 18 and allegedly misconstrued others); Tr. 551, 1534 (October 27, 2016 and August 19 30, 2017: mental health evaluations have shown poor memory and that Plaintiff is

20 a poor historian); Tr. 552 (October 27, 2016: Plaintiff’s diagnosed conditions were 2 1 noted to disrupt her functioning on a daily basis). The Court must consider the 2 ALJ’s decision in the context of “the entire record as a whole,” and if the

3 “evidence is susceptible to more than one rational interpretation, the ALJ’s 4 decision should be upheld.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 5 (9th Cir. 2008) (internal quotation marks omitted). Although Plaintiff cites

6 treatment notes to support her contention that she had memory issues and an 7 alleged miscommunication with a provider, evidence from mental status 8 examinations throughout the record reflect moderate limitations related to this 9 functional area. See, e.g., Tr. 1888 (October 19, 2017: upon mental status

10 examination, Plaintiff’s provider noted there was “no evidence for distractibility or 11 inattention ... her memory functions were also good,” with Plaintiff able to recall 12 details about her past medical history and specifics of recent and remote events);

13 Tr. 1840 (November 9, 2017: upon mental status examination, Plaintiff’s provider 14 noted there was “no evidence for any cognitive impairments”); Tr. 1828-29 15 (January 4, 2018: upon mental status examination, Plaintiff’s provider noted that 16 there was no abnormal thought processing, Plaintiff did not have flight of ideas or

17 tangential patterns, her cognitive functions were good, she was not distracted or 18 inattentive, and she did not have to be redirected”). The ALJ’s conclusion that 19 Plaintiff had moderate limitations in understanding, remembering, or applying

20 2 1 information is a reasonable interpretation of the evidence. This finding is 2 supported by substantial evidence.

3 The ALJ found that Plaintiff had moderate difficulties in interacting with 4 others. Tr. 19. This area of mental functioning refers to a claimant’s ability “to 5 relate to and work with supervisors, co-workers, and the public.” 20 C.F.R. § 404,

6 Subpart P, Appendix I. The ALJ noted that Plaintiff asserted she “lacks confidence 7 and is in a constant state of anxiety and worry.” Tr. 19 (citing Tr. 957). Plaintiff 8 cites treatment notes to argue that the ALJ’s moderate finding was not supported 9 by substantial evidence. ECF No. 13 at 13-15; see, e.g., Tr. 1329 (April 11, 2017:

10 Plaintiff presented to the emergency department “because she was out of options,” 11 as the pain resulting from her injury caused exacerbations of her anxiety); Tr. 12 1211, 1491, 1534 (multiple doctors noted anger and irritability during Plaintiff’s

13 appointments); Tr. 720, 1330 (records indicate estrangement from significant 14 others due to Plaintiff’s conditions); Tr. 1332 (Plaintiff endorsed suicidal ideation); 15 Tr. 1342 (Plaintiff described being “overstimulated” with emotions and having 16 difficulty regulating them); Tr. 1544 (Plaintiff endorsed auditory hallucinations

17 and racing thoughts); Tr. 552, 1535 (Plaintiff reported having trouble relaxing and 18 being easily annoyed or irritable). However, the ALJ found that Plaintiff’s 19 subjective reports were “completely inconsistent” with her primary care records.

20 Tr. 20-22; see, e.g., Tr. 396 (May 7, 2017: Plaintiff reported that she was able to go 2 1 out alone and shop in stores); Tr. 1624-27 (May 25, 2017: upon examination, 2 Plaintiff was alert, oriented, pleasant, and appropriate while reporting medical

3 improvement with the use of Cymbalta); Tr. 1602 (June 27, 2017: Plaintiff had a 4 pleasant and appropriate affect upon examination); Tr. 1839-40 (November 9, 5 2017: Plaintiff reported better interaction with her immediate family, and reported

6 that “she cannot recall when she has felt as good as she has now;” treatment notes 7 showed Plaintiff was “bright in her affect... she was engaging, upbeat and clearly 8 much more positive in her attitude and feelings about the medications.”); Tr. 1769 9 (February 8, 2018: Plaintiff reported that she had begun a new relationship and was

10 taking on a lot of responsibility for the care of her new boyfriend’s children). The 11 ALJ’s conclusion of moderate limitations in interacting with others is a reasonable 12 interpretation of the evidence. This finding is supported by substantial evidence.

13 The ALJ’s step three finding is supported by substantial evidence in the 14 record. Plaintiff is not entitled to remand on this ground. 15 D. Plaintiff’s Symptom Claims 16 Plaintiff faults the ALJ for failing to rely on clear and convincing reasons in

17 discrediting her symptom claims. ECF No. 13 at 9-12. An ALJ engages in a two- 18 step analysis to determine whether to discount a claimant’s testimony regarding 19 subjective symptoms. SSR 16–3p, 2016 WL 1119029, at *2. “First, the ALJ must

20 determine whether there is objective medical evidence of an underlying 2 1 impairment which could reasonably be expected to produce the pain or other 2 symptoms alleged.” Molina, 674 F.3d at 1112 (quotation marks omitted). “The

3 claimant is not required to show that [the claimant’s] impairment could reasonably 4 be expected to cause the severity of the symptom [the claimant] has alleged; [the 5 claimant] need only show that it could reasonably have caused some degree of the

6 symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 7 Second, “[i]f the claimant meets the first test and there is no evidence of 8 malingering, the ALJ can only reject the claimant’s testimony about the severity of 9 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the

10 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 11 omitted). General findings are insufficient; rather, the ALJ must identify what 12 symptom claims are being discounted and what evidence undermines these claims.

13 Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th 1996); Thomas v. Barnhart, 14 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently explain why it 15 discounted claimant’s symptom claims)). “The clear and convincing [evidence] 16 standard is the most demanding required in Social Security cases.” Garrison v.

17 Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. 18 Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 19 Factors to be considered in evaluating the intensity, persistence, and limiting

20 effects of a claimant’s symptoms include: 1) daily activities; 2) the location, 2 1 duration, frequency, and intensity of pain or other symptoms; 3) factors that 2 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and

3 side effects of any medication an individual takes or has taken to alleviate pain or 4 other symptoms; 5) treatment, other than medication, an individual receives or has 5 received for relief of pain or other symptoms; 6) any measures other than treatment

6 an individual uses or has used to relieve pain or other symptoms; and 7) any other 7 factors concerning an individual’s functional limitations and restrictions due to 8 pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. §§ 9 404.1529(c), 416.929(c). The ALJ is instructed to “consider all of the evidence in

10 an individual’s record,” to “determine how symptoms limit ability to perform 11 work-related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 12 The ALJ found that Plaintiff’s medically determinable impairments could

13 reasonably be expected to cause some of the alleged symptoms, but that Plaintiff’s 14 statements concerning the intensity, persistence, and limiting effects of her 15 symptoms were not entirely consistent with the evidence. Tr. 20. 16 1. Improvement with Medication

17 The ALJ discounted Plaintiff’s symptom claims because her mental health 18 symptoms were improved by and effectively controlled with medication. Tr. 20- 19 22. The effectiveness of medication and treatment is a relevant factor in

20 determining the severity of a claimant’s symptoms. 20 C.F.R. §§ 404.1529(c)(3), 2 1 416.929(c)(3) (2017); see Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 2 1006 (9th Cir. 2006) (recognizing that conditions effectively controlled with

3 medication are not disabling for purposes of determining eligibility for benefits) 4 (internal citations omitted); see also Tommasetti v. Astrue, 533 F.3d 1035, 1040 5 (9th Cir. 2008) (A favorable response to treatment can undermine a claimant’s

6 complaints of debilitating pain or other severe limitations.). 7 Here, the ALJ noted that although Plaintiff testified to “only minimal, if any, 8 improvement in her symptoms,” the longitudinal record, including the objective 9 medical evidence, clinical observations of professionals, and her own

10 contemporaneous reports to providers, demonstrated improvement in her mental 11 health symptoms with the use of medication. Tr. 20-22; see, e.g., Tr. 1624-27 12 (May 25, 2017: treatment records showed Plaintiff being treated initially with

13 Hydroxyzine and then Cymbalta for her mental health symptoms; on Cymbalta she 14 was noted to have “significant improvement” and “overall the anxiety and the pain 15 have improved because she feels she is better equipped to deal with it;” Plaintiff 16 reported that “[s]he feels her Cymbalta seems to help with her pain/depression;”

17 upon examination Plaintiff was alert and oriented to person, place, time and event, 18 her speech was clear and articulate, she was “pleasant and appropriate ... she sits 19 much more still today.”); Tr. 1602 (June 27, 2017: Plaintiff appeared alert and

20 oriented, with clear, articulate speech, and pleasant and appropriate affect upon 2 1 examination); Tr. 1897-99 (October 5, 2017: Plaintiff stopped taking Cymbalta but 2 continued to use Buspirone and Hydroxyzine; she reported her anxiety was “about

3 the same,” and upon examination she was “pleasant and appropriate”); Tr. 1887-89 4 (October 19, 2017: upon examination Plaintiff was guarded and “marginally 5 cooperative,” with an irritated affect, but she described her mood as fair; the

6 provider noted there was “no evidence for distractibility or inattention ... [h]er 7 memory functions were also good,” with Plaintiff able to recall details about her 8 past medical history and specifics of recent and remote events; the provider also 9 noted Plaintiff had “obsessional thinking but she denied compulsive behaviors or

10 rituals;” Plaintiff was diagnosed with major depressive disorder, PTSD, and social 11 phobia, and the provider recommended increased Buspirone and prescribed 12 Alprazolam and Clonazepam); Tr. 1839-40 (November 9, 2017: Plaintiff reported

13 better interaction with her immediate family, and noted she could not recall when 14 she had felt “as good as she has now”; Plaintiff had not experienced adverse 15 reactions, her sleep patterns were markedly improved, and she was learning to 16 control her panic attacks with her medications; she was “bright in her affect... she

17 was engaging, upbeat and clearly much more positive in her attitude and feelings 18 about the medications;” she denied dark or self-destructive thoughts, there was no 19 evidence of any cognitive impairments, and she did not show any distractibility or

20 inattention.); Tr. 1828-29 (January 4, 2018: Plaintiff reported improved sleep, 2 1 decreased nightmares, and reduced anxiety symptoms with Xanax; she “described 2 her mood as being good in general and much more stable than it has been”; upon

3 examination her cognitive functions were good, there was no abnormal thought 4 processing, and she did not have flight of ideas or tangential thinking; she “was not 5 distracted or inattentive and did not have to be redirected during the interview;”

6 Plaintiff’s provider noted that she was “working towards a stable income and 7 perhaps at some point returning to some type of employment, which again is a 8 much more hopeful and positive thinking than when we originally met.”); Tr. 1802 9 (January 24, 2018: Plaintiff no longer needed daily Xanax); Tr. 1768-69 (February

10 8, 2018: at a psychiatric follow-up, Plaintiff reported that her “motivation and 11 interest for doing things is certainly improved. Overall, she feels that her tolerance 12 and mood are better, and she describes actually feeling happy and safe again”;

13 upon mental status examination, Plaintiff was “talkative, pleasant, and engaging,” 14 with cognitive functions “quite good,” and while she continued to display some 15 social phobia, it was noted that “the symptoms are more controlled”; the provider 16 noted that Plaintiff was “showing marked improvement with her current

17 medications and seems more relaxed and confident than before.”). 18 Plaintiff, while agreeing that “some of her symptoms may have improved,” 19 argues that the records still note severe symptoms despite changes in medication.

20 ECF No. 13 at 11-12 (citing Tr. 1768-69). Plaintiff also asserts that the records do 2 1 not show that her symptoms have disappeared entirely. Id. at 12. It is the ALJ’s 2 responsibility to resolve conflicts in the medical evidence. Andrews v. Shalala, 53

3 F.3d 1035, 1039 (9th Cir. 1995). Where the ALJ’s interpretation of the record is 4 reasonable as it is here, it should not be second-guessed. Rollins v. Massanari, 261 5 F.3d 853, 857 (9th Cir. 2001). The Court must consider the ALJ’s decision in the

6 context of “the entire record as a whole,” and if the “evidence is susceptible to 7 more than one rational interpretation, the ALJ’s decision should be upheld.” Ryan, 8 528 F.3d at 1198 (internal quotation marks omitted). On this record, the ALJ 9 reasonably concluded that Plaintiff’s mental impairments, when treated with

10 medication, were not as limiting as Plaintiff claimed. This was a clear and 11 convincing reason, supported by substantial evidence, to discount Plaintiff’s 12 symptom claims.

13 2. Inconsistent with Daily Activities 14 The ALJ found that Plaintiff’s activities were inconsistent with the level of 15 impairment Plaintiff alleged. Tr. 22. An ALJ may consider a claimant’s activities 16 that undermine reported symptoms. Rollins, 261 F.3d at 857. If a claimant can

17 spend a substantial part of the day engaged in pursuits involving the performance 18 of exertional or nonexertional functions, the ALJ may find these activities 19 inconsistent with the reported disabling symptoms. Fair v. Bowen, 885 F.2d 597,

20 603 (9th Cir. 1989); Molina, 674 F.3d at 1113. “While a claimant need not 2 1 vegetate in a dark room in order to be eligible for benefits, the ALJ may discount a 2 claimant’s symptom claims when the claimant reports participation in everyday

3 activities indicating capacities that are transferable to a work setting” or when 4 activities “contradict claims of a totally debilitating impairment.” Molina, 674 5 F.3d at 1112-13.

6 Here, the ALJ noted that Plaintiff reported physical and mental health 7 symptoms that limited her ability to lift, squat, bend, stand, walk, sit, kneel, climb 8 stairs, concentrate, and get along with others. Tr. 20 (citing Tr. 398). The ALJ 9 also cited Plaintiff’s reports that she had poor sleep, poor appetite, low energy and

10 motivation, extreme anxiety and racing thoughts, chronic pain and various somatic 11 symptoms, she lacked confidence, and was in a constant state of anxiety and 12 worry. Tr. 20 (citing Tr. 957). However, the ALJ noted that Plaintiff engaged in

13 activities that were incompatible with her alleged disabling limitations. Tr. 22. 14 The ALJ observed that Plaintiff reported she cared for her son, made simple meals, 15 folded laundry, swept the floor, picked up the yard, went out alone, drove, shopped 16 in stores, and managed financial accounts. Tr. 22 (citing Tr. 393-400). The ALJ

17 specifically found that Plaintiff’s ability to care for her son and maintain a 18 household independently suggested an adequate ability to adapt and manage 19 herself, her ability to go out alone and shop in stores suggested reasonably intact

20 social functioning, and her ability to drive and manage financial accounts 2 1 suggested an intact ability to concentrate and maintain attention. Tr. 22. The ALJ 2 also noted that Plaintiff reported to a provider during the relevant period that she

3 had begun a new relationship and was taking on a lot of responsibility for the care 4 of her new boyfriend’s children. Tr. 22. The ALJ found that Plaintiff’s ability to 5 take on this childcare responsibility suggested intact mental functioning, including

6 the ability to deal with new stressors. Tr. 22 (citing Tr. 1769). The ALJ 7 reasonably concluded that these activities were inconsistent with the debilitating 8 level of impairment Plaintiff alleged. Tr. 22. 9 Plaintiff challenges the ALJ’s finding by asserting that she testified as to her

10 need for constant breaks when doing household chores and caring for her child, 11 particularly stopping because of the pain. ECF No. 13 at 12 (citing Tr. 169-70). 12 An ALJ may discount a claimant’s symptom claims when the claimant reports

13 participation in everyday activities that “contradict claims of a totally debilitating 14 impairment.” Molina, 674 F.3d at 1112-13. Here, the ALJ identified Plaintiff’s 15 specific alleged impairments and noted specific activities that indicated Plaintiff 16 was less limited than she alleged. Tr. 22. This was a clear and convincing reason

17 to give less weight to Plaintiff’s subjective symptom testimony. 18 3. Inconsistent with Childcare Activities 19 The ALJ discounted Plaintiff’s symptom claims as inconsistent with the

20 ability to independently care for her son. Tr. 22. The ability to care for others 2 1 without help has been considered an activity that may undermine claims of totally 2 disabling pain. Rollins, 261 F.3d at 857. For care activities to serve as a basis for

3 the ALJ to discredit a claimant’s symptom claims, the record must identify the 4 nature, scope, and duration of the care involved, showing that the care is “hands 5 on” rather than a “one-off” care activity. Trevizo v. Berryhill, 871 F.3d 664, 675-

6 76 (9th Cir. 2017). Here, the ALJ noted that Plaintiff reported she cared for her 7 son. Tr. 22 (citing Tr. 393-400). The ALJ also observed that Plaintiff reported to a 8 provider during the relevant period that she had begun a new relationship and was 9 taking on a lot of responsibility for the care of her new boyfriend’s children. Tr.

10 22 (citing Tr. 1769) (February 8, 2018: “[Plaintiff] is learning to accommodate 11 weekend visits with [her boyfriend’s] children and is taking on a lot of 12 responsibility for their care and wellbeing.”) The record provides additional

13 insight into Plaintiff’s childcare activities. See Tr. 732, 734 (April 6, 2017: 14 Plaintiff reported to a provider that she was the primary caregiver for her four-year 15 old child); Tr. 394 (May 7, 2017: Plaintiff reported that she would make meals for 16 her son, bathe him, and help him with his schoolwork); Tr. 169-70 (June 4, 2018:

17 Plaintiff testified that on a typical day she would feed her son and play with him, 18 go over schoolwork with him, and hang out with him). The ALJ properly found 19 that Plaintiff’s childcare activities did not support her subjective symptom

20 complaints. 2 1 4. Lack of Supporting Medical Opinion Evidence 2 The ALJ found that Plaintiff’s symptom complaints were not supported by

3 the medical evidence, as no medical source offered an opinion supportive of long- 4 term disability. Tr. 23. An ALJ’s credibility finding based in part on a 5 determination that the claimant’s testimony is “unsupported by…any persuasive

6 reports of his doctors” is not erroneous. Batson v. Comm’r of Soc. Sec. Admin., 7 359 F.3d 1190, 1196 (9th Cir. 2004). The ALJ observed that medical examiner, 8 Dr. McKenna, testified that Plaintiff had no severe physical impairments. Tr. 137- 9 46. The ALJ also noted that in an independent medical examination, Drs. Jessen,

10 McCormick, and Chong opined that Plaintiff had no objective abnormalities and 11 they found no physical reason preventing Plaintiff from returning to work. Tr. 12 1475-1506. Further, the State agency medical and psychological consultants all

13 opined that Plaintiff was not disabled. Tr. 182-95, Tr. 197-210, Tr. 212-26, Tr. 14 228-42. Plaintiff asserts that “[b]ecause the ALJ did not assess the opinions of 15 examining or treating mental health providers, he should have requested an 16 independent evaluation to assess the full extent of impairments on [Plaintiff’s]

17 ability to work.” ECF No. 13 at 12. However, “[a]n ALJ is not required to order 18 every medical evaluation that could conceivably shed light on a claimant’s 19 condition, but rather just those that would resolve ambiguities or inadequacies in

20 the record.” Lloyd v. Astrue, No. C-11-4902-EMC, 2013 WL 503389, at *5 (N.D. 2 1 Cal. Feb. 8, 2013) (citing Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2 2001)). Plaintiff’s disagreement with the ALJ’s conclusions does not make the

3 record ambiguous or inadequate. See Leitner v. Comm’r Soc. Sec., 361 F. App’x 4 876, 877 (9th Cir. 2010) (the “claimant bears the burden” of establishing that 5 symptoms interfere with his or her ability to “perform basic work activities,” and

6 the ALJ, on that record, could make such a determination) (citations omitted). 7 Based on this record, the ALJ reasonably concluded that Plaintiff’s allegations of 8 complete disability were not supported by the medical opinion evidence. This 9 finding is supported by substantial evidence.

10 5. Motivated by Secondary Gain 11 The ALJ discounted Plaintiff’s symptom claims because evidence in the 12 record suggested monetary gain was a primary motivating factor for her disability

13 application. Tr. 20. Evidence of being motivated by secondary gain is sufficient to 14 support an ALJ’s rejection of testimony evidence. See Matney on Behalf of 15 Matney v. Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992). Therefore, the tendency 16 to exaggerate or engage in manipulative conduct during the process is a

17 permissible reason to discount the credibility of a claimant’s reported symptoms. 18 Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). Here, the ALJ 19 highlighted a counseling record notation which stated that Plaintiff “would like to

20 get a job as her Social Security Claim was denied a second time.” Tr. 20 (citing 2 1 Tr. 1525). The ALJ also noted that Plaintiff’s primary care records showed 2 sustained objective medical improvement and documented Plaintiff’s subjective

3 statements endorsing medical improvement. Tr. 20. However, the ALJ observed 4 that those records stood “in stark contrast” to Plaintiff’s treatment notes from her 5 return to counseling, where she endorsed multiple symptoms of anxiety and

6 depression and asserted no meaningful relationships or social interaction. Tr. 20 7 (citing Tr. 1520-44). After citing the discrepancy between Plaintiff’s primary care 8 records and her counseling report with the notation about her disability claim being 9 denied, the ALJ determined that this notation suggested income was a primary

10 motivating factor for Plaintiff’s disability application, rather than a complete 11 inability to work. Tr. 20. The ALJ cited to no other instances in the record that 12 suggested monetary gain was a primary motivating factor for Plaintiff’s disability

13 application. If the ALJ erred by finding that Plaintiff was motivated by secondary 14 gain, any error would be harmless because the ALJ identified numerous specific, 15 clear, and convincing reasons to discount Plaintiff’s symptom claims. See 16 Carmickle, 533 F.3d at 1162-63; Molina, 674 F.3d at 1115 (“[S]everal of our cases

17 have held that an ALJ’s error was harmless where the ALJ provided one or more 18 invalid reasons for disbelieving a claimant’s testimony, but also provided valid 19 reasons that were supported by the record.”); Batson, 359 F.3d at 1197 (holding

20 that any error the ALJ committed in asserting one impermissible reason for 2 1 claimant’s lack of credibility did not negate the validity of the ALJ’s ultimate 2 conclusion that the claimant’s testimony was not credible).

3 E. RFC Formulation 4 Plaintiff asserts the ALJ erred by failing to incorporate any physical 5 limitations into the RFC. ECF No. 13 at 15-17. At step four of the sequential

6 evaluation, the ALJ must determine the claimant’s RFC. 20 C.F.R. §§ 7 404.1520(a)(4)(iv) 416.920(a)(4)(iv) (2012). “[T]he ALJ is responsible for 8 translating and incorporating clinical findings into a succinct RFC.” Rounds v. 9 Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015). To the extent the

10 evidence could be interpreted differently, it is the role of the ALJ to resolve 11 conflicts and ambiguity in the evidence. Morgan v. Comm’r of Soc. Sec. Admin., 12 169 F.3d 595, 599-600 (9th Cir. 1999).

13 The ALJ identified only mental health impairments as severe impairments at 14 step two. Tr. 18. Plaintiff argues that “the analysis of [Plaintiff’s] RFC changes 15 dramatically if any physical conditions are added to her list of severe 16 impairments.” ECF No. 13 at 16. Plaintiff asserts that difficulties with her heart

17 would require additional breaks and absences, or limitations in the amount of time 18 she would be able to stand, walk, or sit. ECF No. 13 at 17. The ALJ found 19 Plaintiff’s tachycardia to be a non-severe impairment and Plaintiff did not

20 challenge this finding. Tr. 18. As discussed supra, the ALJ did not err at step two 2 1 by failing to find that Plaintiff’s lumbar condition was a severe impairment. Tr. 2 18. Here, the ALJ accounted for all limitations that the evidence reasonably

3 supported. This RFC formulation reflects a reasonable interpretation of the 4 evidence. Plaintiff identifies no evidence in the record to undermine the ALJ’s 5 conclusion. ECF No. 13 at 15-17. Therefore, the ALJ’s RFC formulation is

6 supported by substantial evidence. 7 Moreover, Plaintiff’s argument is without merit. The Court notes that 8 Plaintiff argues the record indicates she should be limited to light or sedentary 9 work. ECF No. 13 at 17. As discussed above, the ALJ found that Plaintiff was

10 capable of working as a mail clerk, which is classified as light work, and as a 11 printed circuit board assembler, which is classified as sedentary work. Tr. 25. The 12 vocational expert also testified that Plaintiff would be capable of other work even

13 if she were physically limited to the light exertional level, with a sit/stand option at 14 will; no climbing ladders, ropes or scaffolds but occasionally performing all other 15 postural activities; with no concentrated exposure to extreme cold, vibration, or 16 hazards. Tr. 25. The vocational expert testified that an individual with such

17 limitations would be able to perform the light exertional level jobs of collator 18 operator, office helper, and mail clerk. Tr. 25. Based on this record, Plaintiff has 19 shown no error in the ALJ’s formulation of the RFC. See Shinseki, 556 U.S. at

20 2 1 409-10 (the party challenging the ALJ’s decision bears the burden of showing 2 harm).

3 CONCLUSION 4 Having reviewed the record and the ALJ’s findings, the Court concludes the 5 ALJ’s decision is supported by substantial evidence and free of harmful legal error.

6 Accordingly, IT IS HEREBY ORDERED: 7 1. Plaintiff’s Motion for Summary Judgment, ECF No. 13, is DENIED. 8 2. Defendant’s Motion for Summary Judgment, ECF No. 14, is 9 GRANTED.

10 3. The Clerk’s Office shall enter JUDGMENT in favor of Defendant. 11 The District Court Executive is directed to file this Order, provide copies to 12 counsel, and CLOSE THE FILE.

13 DATED April 15, 2020. 14 s/Mary K. Dimke MARY K. DIMKE 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19

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