Duvall v. Commissioner of Social Security Administration ( 2019 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Penny Duvall, No. CV-18-00610-TUC-MSD 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Plaintiff Penny Duvall filed this action pursuant to 42 U.S.C. § 405(g) seeking 16 judicial review of a final decision by the Commissioner of Social Security. (Doc. 1.) 17 Before the Court are Duvall’s opening brief, the Commissioner’s response brief, and 18 Duvall’s reply brief. (Docs. 19, 20, 21.) For the following reasons, the Commissioner’s 19 decision will be affirmed. 20 Background 21 I. Procedural History 22 Duvall applied for disability insurance benefits on August 3, 2015, claiming a 23 disability onset date of January 1, 2010. AR 60.1 Her application was denied on November 24 13, 2015, and again on reconsideration on March 2, 2016. AR 87, 92. On March 9, 2016, 25 Duvall requested a hearing before an administrative law judge (“ALJ”). AR 95. At the 26 hearing, held on August 9, 2017, Duvall testified about her medical conditions and past 27 work, and a Vocational Expert (“VE”) testified about which jobs a hypothetical person 28 1 “AR” refers to the Certified Administrative Record. 1 with Duvall’s characteristics can perform. AR 36–58. On December 7, 2017, the ALJ 2 issued a written decision finding Duvall not disabled and denying benefits. AR 15–30. On 3 November 13, 2018, the Appeals Council denied review. AR 1–3. Duvall now seeks 4 judicial review of the ALJ’s decision denying benefits. (Doc. 1.) 5 II. Factual Background 6 Duvall was born with Turner syndrome, a chromosomal condition that affects only 7 women. See AR 378. Duvall has several conditions associated with Turner syndrome, 8 including heart defects, short stature, obesity, and deficient interpersonal skills. AR 24, 9 378, 380. Duvall has congenital heart disease, including coarctation (narrowing) and 10 dilation of the aorta and a bicuspid aortic valve. AR 339. She had two heart-related 11 surgeries as a child: one in 1983 to insert a synthetic conduit between the ascending and 12 descending aortas, and a pericardiectomy in 1985 to address constrictive pericarditis. AR 13 315. She underwent cardiac catheterization in 2012. AR 529–32. 14 Duvall has a bachelor’s degree. AR 185. She was a substitute middle-school 15 teacher from 2000 to 2005, and a fulltime elementary-school teacher from 2005 to 2009. 16 AR 186. According to Duvall, she was let go from her teaching positions due to 17 “interpersonal relations with co-workers, management in particular.” AR 185. 18 Dr. Daniela Lax is Duvall’s treating cardiologist. On March 18, 2013, Dr. Lax wrote 19 an assessment letter on behalf of Duvall. AR 380. On April 18, 2016, after Duvall’s date 20 last insured, Dr. Lax completed a Cardiac Impairment Questionnaire. AR 514–519. The 21 substance of Dr. Lax’s reports, as well as the ALJ’s treatment of them, are discussed below 22 as relevant. 23 III. Hearing 24 At the hearing before the ALJ, Duvall testified that she has Turner syndrome and 25 suffers from many of the effects of that condition, including congenital heart disease, short 26 stature (she is five feet tall), obesity (she weighed 180 pounds on the date of the hearing), 27 and difficulty functioning in social situations. AR 40–41, 46. According to Duvall, prior 28 to her date last insured, she was able to dress and bathe herself, assist her mother with 1 household chores, go grocery shopping, do laundry, mow the lawn, go swimming for 20 to 2 30 minutes at a time, and drive a car. AR 41–44. However, she testified that she often 3 requires two to three days of recovery after doing some of these tasks, and two to three 4 times per month she will feel “sharp pains” while doing them. AR 46, 49–50. 5 Duvall also testified that she has a college degree and used to be a teacher. AR 40. 6 When asked how she was able to achieve this with Turner syndrome, she explained that 7 the symptoms of Turner syndrome were often ignored or incorrectly characterized while 8 she was growing up (e.g., she was called a “strong-willed child”), and that without her 9 parents pushing her to go to college and get a job, she probably would not have done so. 10 AR 46–47. She testified that her lack of interpersonal skills caused her to be fired from 11 three teaching jobs for being “unprofessional” and not “follow[ing] instructions.” AR 47– 12 48. As an example, she stated that she was reprimanded for being “assertive and aggressive 13 towards the students,” including taking a deck of cards from a student. AR 51–53.2 14 The VE testified that Duvall’s teaching work is within the light exertion range. AR 15 56. The ALJ asked the VE about a hypothetical claimant with Duvall’s age, education, 16 and work history who can sit, stand, or walk for six hours per eight-hour workday, 17 occasionally lift and carry 20 pounds, frequently lift and carry 10 pounds, frequently climb, 18 balance, stoop, kneel, crouch, and crawl, and occasionally interact with coworkers, 19 supervisors, and the public. AR 56. The VE testified that the hypothetical claimant could 20 not perform Duvall’s past teaching job. AR 56. According to the VE, however, the 21 hypothetical claimant could perform other jobs in the national economy, including marking 22 clerk, hand packager, and production helper. AR 56. The VE confirmed that her testimony 23 was consistent with the Dictionary of Occupational Titles. AR 57. 24 IV. ALJ Decision 25 The ALJ followed the five-step sequential evaluation process for determining 26 whether an individual is disabled. AR 19–30. At step one, the ALJ found that Duvall was 27 2 Duvall testified that she also attempted, unsuccessfully, to do food-service and telemarketing work. AR 53–54. According to Duvall, she was not able to properly 28 interact with customers or follow instructions, so she resigned before she could be fired. AR 53–54. 1 not engaged in “substantial gainful activity.” AR 20. At step two, the ALJ found that 2 Duvall has three “severe” impairments: Turner syndrome, congenital heart disease, and 3 obesity. AR 20. The ALJ found that Duvall’s lack of interpersonal skills is a “non-severe” 4 mental impairment. AR 20–23. At step three, the ALJ found that Duvall does not have an 5 impairment or combination of impairments that meets or medically equals the severity of 6 one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 23. 7 Between steps three and four, the ALJ found that Duvall has the residual functional 8 capacity (“RFC”) to sit, stand, or walk for six hours per eight-hour workday, occasionally 9 lift or carry 20 pounds, frequently lift or carry 10 pounds, frequently climb, balance, stoop, 10 kneel, crouch, or crawl, and occasionally interact with coworkers, supervisors, and the 11 public. AR 24. In determining Duvall’s RFC, the ALJ found that Duvall’s statements 12 about her symptoms were “not entirely consistent with the medical evidence and other 13 evidence in the record.” AR 25. The ALJ gave “controlling weight” to Dr. Lax’s 14 assessment of Duvall in 2013, which noted only that Duvall requires ongoing monitoring 15 due to Turner syndrome, not that Duvall has functional limitations. AR 26. The ALJ gave 16 “limited weight” to opinions rendered by Dr. Lax in 2016, including that Duvall cannot lift 17 or carry more than five pounds, because they were rendered after Duvall’s date last insured 18 and lack evidentiary support. AR 27. The ALJ gave “substantial weight” to the opinions 19 of the agency physicians because “they reviewed available information,” and “[s]ubsequent 20 treatment records have not documented any significant change in the claimant’s condition 21 through the date last insured.” AR 27. 22 At step four, the ALJ found that Duvall cannot perform her past relevant work, either 23 as actually performed or as generally performed in the national economy. AR 28. At step 24 five, the ALJ noted that Duvall’s vocational profile under 20 C.F.R. Part 404, Subpart P, 25 Appendix 2 supports a finding that she is not disabled. AR 28–29. The ALJ, considering 26 Duvall’s age, education, work experience, and RFC, then found that Duvall could have 27 performed jobs other than teaching prior to her date last insured, and, therefore, that she is 28 not disabled. AR 28–30. 1 Standard of Review 2 A person is “disabled” within the meaning of the Social Security Act if she is unable 3 “to engage in any substantial gainful activity by reason of any medically determinable 4 physical or mental impairment which can be expected to result in death or which has lasted 5 or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. 6 § 423(d)(1)(A). “When considering a claim for disability benefits, the Social Security 7 Administration is required to conduct a now-familiar five-step sequential evaluation 8 process to determine whether a claimant is disabled and eligible for benefits.” Shaibi v. 9 Berryhill, 883 F.3d 1102, 1106 (9th Cir. 2017). The claimant bears the burden of proof at 10 steps one through four; the Commissioner bears the burden at step five. Barnes v. Berryhill, 11 895 F.3d 702, 703 n.3 (9th Cir. 2018) (citing Tackett v. Apfel, 180 F.3d 1094, 1098 (9th 12 Cir. 1999)). 13 At the first step, the ALJ determines whether the claimant is engaged in “substantial 14 gainful activity.” 20 C.F.R. § 404.1520(a)(4)(i). If yes, the ALJ will find the claimant not 15 disabled. Id. At the second step, the ALJ considers whether the claimant has a “severe” 16 physical or mental impairment, or a combination of impairments that is “severe,” that has 17 lasted at least one year. Id. §§ 404.1520(a)(4)(ii), 404.1509. If not, the ALJ will find the 18 claimant not disabled. Id. § 404.1520(a)(4)(ii). At the third step, the ALJ considers 19 whether the claimant’s impairments meet or equal one of the medical conditions listed in 20 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. § 404.1520(a)(4)(iii). If yes, the ALJ will 21 find the claimant disabled. Id. 22 If the ALJ does not find the claimant disabled at the third step, before proceeding to 23 the fourth step, the ALJ will determine the claimant’s RFC—i.e., what the claimant can 24 still do despite her limitations. See Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017); 25 20 C.F.R. § 404.1545(a)(1). At the fourth step, the ALJ considers whether the claimant 26 has the RFC to perform her “past relevant work.” 20 C.F.R. § 404.1520(a)(4)(iv). If yes, 27 the ALJ will find the claimant not disabled. Id. At the fifth step, the ALJ considers the 28 claimant’s RFC, age, education, and work experience and determines whether the claimant 1 “can make an adjustment to other work.” Id. § 404.1520(a)(4)(v). If yes, the ALJ will find 2 the claimant not disabled; if not, the ALJ will find the claimant disabled. Id. 3 The ALJ’s decision to deny disability benefits is subject to harmless-error review, 4 Buck v. Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017) (citing Molina v. Astrue, 674 F.3d 5 1104, 1111 (9th Cir. 2012)) and must be affirmed “unless it is not supported by substantial 6 evidence or is based on a legal error,” Wellington v. Berryhill, 878 F.3d 867, 871 (9th Cir. 7 2017) (citing Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010)). “Substantial evidence 8 ‘is more than a mere scintilla,’ but less than a preponderance.” Luther v. Berryhill, 891 9 F.3d 872, 875 (9th Cir. 2018) (quoting Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) 10 (per curiam)). “A reviewing court may only consider the reasons provided by the ALJ in 11 the disability determination and ‘may not affirm the ALJ on a ground upon which he did 12 not rely.’” Id. (quoting Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014)). 13 Discussion 14 I. Evaluation of Symptom Testimony 15 Duvall testified that it takes her a long time to do household chores because she 16 suffers from fatigue and sharp physical pain. AR 24, 45–46, 49–50. She also testified that 17 she needs two to three days to recover after doing household chores. AR 24, 42–43. The 18 ALJ provided two reasons for discounting this symptom testimony. AR 24–25. Duvall 19 asserts neither reason is legally sufficient. The Commissioner responds that the ALJ’s 20 decision is rational and supported by substantial evidence. For the following reasons, 21 substantial evidence supports the ALJ’s rejection of Duvall’s symptom testimony.3 22 A. Legal Principles 23 There is a two-step analysis for determining whether to credit a claimant’s symptom 24 testimony. Trevizo, 871 F.3d at 678. “First, the ALJ must determine whether the claimant 25 has presented objective medical evidence of an underlying impairment ‘which could 26 3 Duvall also testified that she has a lack of interpersonal skills, which resulted 27 in her quitting or being terminated from every job she has had. AR 46–48, 51–54. The ALJ apparently believed this symptom testimony, because the RFC limits her interaction 28 with other people. See AR 24. Duvall does not challenge the ALJ’s adoption of this limitation. 1 reasonably be expected to produce the pain or other symptoms alleged.’” Garrison, 759 2 F.3d at 1014 (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007)). 3 The claimant need not present evidence of the symptom itself (e.g., pain), or of its severity. 4 Id. (quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)). Second, if “there is no 5 evidence of malingering, ‘the ALJ can reject the claimant’s testimony about the severity of 6 her symptoms only by offering specific, clear and convincing reasons for doing so.’” Id. 7 at 1014–15 (quoting Smolen, 80 F.3d at 1281). 8 B. Analysis 9 Here, the ALJ concluded that Duvall’s medical impairments could reasonably be 10 expected to cause her alleged symptoms. AR 25. The ALJ made no finding that Duvall is 11 malingering. See AR 25. Therefore, the ALJ could reject Duvall’s symptom testimony 12 only for specific, clear, and convincing reasons. See Garrison, 759 F.3d at 1014–15. Here, 13 the ALJ provided two reasons. 14 The ALJ’s first reason is that “cardiology reports during the period at issue 15 document that the claimant’s condition was stable” and that “[s]he was without chest pain 16 or syncope.” AR 24–25. Duvall argues this is not a valid reason for rejecting her 17 testimony, because “stable” means only that her conditions have not changed, not that she 18 is healthy. Pointing to treatment records stating that she has a dilated descending aorta, 19 she says that her condition is “serious and chronic, and there is little else her physicians 20 can do for her,” making her disabled condition “stable.” The Commissioner criticizes 21 Duvall’s argument for starting from the premise that she is disabled, when it is her burden 22 to establish disability. Furthermore, the Commissioner says, the ALJ’s analysis and 23 conclusion are reasonable. 24 Substantial evidence supports the ALJ’s first reason. To begin, Duvall’s argument 25 ignores and/or misconstrues the ALJ’s analysis and the medical evidence. Duvall is correct 26 that a disabling condition can be “stable.” This does not help Duvall, though, because Dr. 27 Lax does not state in the relied-upon treatment records that Duvall’s dilated descending 28 aorta is disabling. See AR 380, 535. Furthermore, as discussed below, Dr. Lax’s treatment 1 records during the disability period consistently indicate that Duvall was doing well from 2 a cardiological standpoint and thus “stable” in a positive way. Duvall does not address 3 these reports, or the ALJ’s thorough review of them. Duvall’s argument is detached from 4 the evidence and the ALJ’s analysis and is therefore unpersuasive. 5 Moreover, the ALJ’s analysis withstands scrutiny. The ALJ identified Duvall’s 6 statements about the intensity, persistence, and limiting effects of her symptoms, 7 specifically that she requires multiple days of recovery after performing household chores 8 and that she feels fatigue and physical pain while performing them. AR 24. The ALJ then 9 concluded that such statements are “inconsistent” with “cardiology reports” stating that she 10 was “stable” and “without chest pain” during the disability period. AR 24–25. 11 The ALJ then described those reports, beginning with a report authored by Dr. Lax 12 in late 2010, the alleged year of disability onset. AR 25, 277. In that report, Dr. Lax noted 13 that Duvall “had done well since her last visit,” had a “normal” energy level, “had not been 14 sick,” had “no history of chest pain, syncope or palpitations,” and “was clinically stable.” 15 AR 25, 277. The ALJ found that reports such as these “fail to support a finding of disabling 16 functional loss” and that “[s]ubsequent reports do not show deterioration in the claimant’s 17 condition.” AR 25. In other words, the ALJ found that Duvall was not functionally limited 18 at the beginning of the disability period, and that she maintained her good condition up 19 through the date last insured. 20 The subsequent treatment reports support this conclusion. In describing them, the 21 ALJ excerpted notes indicating that Duvall was doing well overall and stable from a cardiac 22 standpoint (though she requires monitoring). AR 25–26. Specifically, the ALJ discussed 23 a May 2012 report in which Dr. Lax noted that an MRI showed Duvall’s cardiac condition 24 was largely unchanged since her last MRI in 2006, that there was no history of chest pain, 25 syncope, or palpitations, and that she was swimming, training for a 1000-step activity, and 26 volunteering, AR 254; a January 2013 report in which Dr. Lax noted that Duvall had done 27 reasonably well overall and had no concerns or complaints, that she was swimming four 28 times per week and dancing two times per month, and that she had no reports of chest pain, 1 syncope, or palpitations, AR 252; an October 2014 report in which Dr. Lax noted that 2 Duvall had no change in energy level, AR 504; and an October 2015 report (one year after 3 the date last insured) in which Dr. Lax noted that Duvall had no change in energy level and 4 was stable from a cardiac standpoint, AR 508. See AR 25–26. These records do not 5 indicate that Duvall had any disabling symptoms or impairments and thus are substantial 6 evidence supporting the ALJ’s findings. 7 Duvall argues in her reply brief that, as time passed, Dr. Lax’s assessment of 8 Duvall’s cardiac condition became more “equivocal.” As an example, she points to a May 9 2012 report stating that her hypertension “could be under better control” and that she has 10 “mild stenosis in conduit.” AR 254. As noted above, though, the same treatment report 11 also states that Duvall’s cardiac condition had not changed in the preceding six years, and 12 that Duvall was physically active and without chest pain. AR 254. “Where evidence is 13 susceptible to more than one rational interpretation, it is the ALJ’s conclusion that must be 14 upheld.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Duvall is merely pressing 15 her own rational interpretation of the evidence. Because the ALJ’s interpretation is also 16 rational, Duvall’s argument must be rejected. 17 The ALJ’s second reason for discounting Duvall’s symptom testimony is that 18 Duvall’s “reported activities . . . are also inconsistent with disabling functional limitations.” 19 AR 25. Duvall says that none of the activities identified by the ALJ—swimming, yoga, 20 dancing, step-climbing (for a brief period, until shortness of breath caused her to quit), 21 caregiving for her mother, and volunteering as a court-appointed child advocate—are 22 inconsistent with her claimed limitations. The Commissioner responds that Duvall’s 23 activities are indeed inconsistent. 24 Although Duvall’s activities probably belie her symptom testimony, substantial 25 evidence does not support the ALJ’s conclusion. An ALJ may rely upon a claimant’s daily 26 activities to reject the claimant’s symptom testimony if the activities either contradict the 27 symptom testimony or involve skills that could be transferred to the workplace. Orn v. 28 Astrue, 495 F.3d 625, 639 (9th Cir. 2007). The Ninth Circuit has cautioned against placing 1 undue significance on a claimant’s daily activities, since “disability claimants should not 2 be penalized for attempting to lead normal lives in the face of their limitations[.]” 3 Garrison, 759 F.3d at 1016 (quoting Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)). 4 Here, Duvall’s daily activities likely do not translate into work skills. They probably 5 are, however, inconsistent with her symptom testimony. She testified that it takes her a 6 long time to do household chores because she gets fatigued and feels pain, and she requires 7 two to three days afterward to recover. These symptoms do not harmonize with her 8 activities, including, for example, swimming for an hour several times per week. See AR 9 252. Swimming may be a low-impact activity, but it requires more exertion than household 10 chores like sweeping or mopping, so it makes little sense that household chores would 11 cause sharp pain and fatigue necessitating days of recovery, but frequent swimming would 12 not have that effect. 13 The problem is the ALJ did not say this, nor is it clearly implied in the decision. 14 The ALJ merely concluded that Duvall’s activities “are inconsistent with disabling 15 functional limitations,” without providing reasons why that is. AR 25. “Long-standing 16 principles of administrative law require [federal courts] to review the ALJ’s decision based 17 on the reasoning and factual findings offered by the ALJ—not post hoc rationalizations 18 that attempt to intuit what the adjudicator may have been thinking.” Bray v. Comm’r of 19 Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009). It would be improper to flesh out 20 the ALJ’s second reason, however easy that may be. For this reason, substantial evidence 21 does not support the ALJ’s second reason. 22 The ALJ provided a specific, clear and convincing reason for rejecting Duvall’s 23 symptom testimony. Thus, the ALJ’s conclusion is supported by substantial evidence. 24 II. Evaluation of Medical-Opinion Evidence 25 Duvall argues that the ALJ erred in giving “limited weight” to Dr. Lax’s opinion 26 that Duvall has a severe lifting and carrying restriction. The Commissioner responds that 27 the ALJ appropriately considered all physicians’ opinions and correctly rejected the lifting 28 and carrying restriction as unsupported by objective medical evidence. For the following 1 reasons, substantial evidence supports the ALJ’s conclusion. 2 A. Background 3 Dr. Lax wrote an assessment letter on behalf of Duvall in March 2013, confirming 4 Duvall’s diagnosis of Turner syndrome and related surgical history. AR 380. The letter 5 states that Duvall has “significant residual obstruction across the repair area,” that she 6 suffers from hypertension, that she “requires ongoing follow-up and periodic testing such 7 as echocardiograms, MRI’s and cardiac catheterizations,” and that “[i]t is possible that she 8 may require surgery in the future.” AR 380. In April 2016 (one-and-a-half years after the 9 date last insured), Dr. Lax completed a Cardiac Impairment Questionnaire on behalf of 10 Duvall, again noting her cardiological diagnoses. AR 514–19. Dr. Lax declined to 11 comment on how long Duvall can sit or stand in an eight-hour workday, how often Duvall 12 would experience pain, fatigue, or other symptoms in an eight-hour workday, or how often 13 Duvall would need breaks or miss work. AR 516–18. Dr. Lax did check two boxes 14 indicating that Duvall is limited to occasionally lifting or carrying a maximum of five 15 pounds—a restriction that renders her incapable of the full range of sedentary work, the 16 least strenuous category of work. AR 516. 17 The ALJ gave controlling weight to Dr. Lax’s 2013 assessment not because of what 18 it says, but because of what it does not say: “This assessment does not suggest any 19 functional limitations but documents the claimant’s need for ongoing treatment.” AR 26. 20 The ALJ gave limited weight to Dr. Lax’s 2016 checkbox opinion, explaining that “it was 21 made over a year after the claimant’s date last insured for benefits, which renders i[t] less 22 persuasive for the period at issue.” AR 27. As for the proposed five-pound lifting and 23 carrying restriction, the ALJ explained that “this restriction is not supported by objective 24 evidence.” AR 27. The ALJ gave substantial weight to the non-examining agency 25 physicians, both of whom opined that Duvall can frequently lift and carry up to 10 pounds. 26 AR 27–28, 69, 83. 27 B. Legal Principles 28 Dr. Lax’s opinion that Duvall is limited to occasional lifting or carrying of five 1 pounds is contradicted by the opinions of Dr. Christopher Maloney and Dr. Bert Spetzler, 2 both of whom opined that Duvall can frequently lift or carry up to 10 pounds. AR 69, 83, 3 516. As such, Dr. Lax’s opinion may be rejected only for “specific and legitimate reasons 4 that are supported by substantial evidence.” Trevizo, 871 F.3d at 675 (quoting Ryan v. 5 Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)). “The ALJ can meet this burden 6 by setting out a detailed and thorough summary of the facts and conflicting clinical 7 evidence, stating his interpretation thereof, and making findings.” Id. (quoting Magallanes 8 v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). However, “an ALJ may discredit treating 9 physicians’ opinions that are conclusory, brief, and unsupported by the record as a whole 10 or by objective medical findings.” Burrell, 775 F.3d at 1140 (emphasis omitted) (quoting 11 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004)). 12 Dr. Lax’s checkbox opinion was rendered 18 months after Duvall’s date last 13 insured. “[M]edical evaluations made after the expiration of a claimant’s insured status 14 are relevant to an evaluation of the pre-expiration condition.” Smith v. Bowen, 849 F.2d 15 1222, 1225 (9th Cir. 1988). However, the ALJ may properly consider the remoteness of 16 an after-the-fact opinion when determining its weight. See Lombardo v. Schweiker, 749 17 F.2d 565, 567 (9th Cir. 1984) (per curiam) (holding it was appropriate for the ALJ to reject 18 a medical opinion rendered one-and-a-half years after the date last insured). 19 C. Analysis 20 Duvall offers several arguments why the ALJ erred. First, she says, it does not 21 matter that Dr. Lax rendered her checkbox opinion after the date last insured, since that 22 opinion was based upon objective evidence gathered before or contemporaneous with the 23 date last insured. She alternatively argues that because the ALJ found her condition to be 24 “stable,” Dr. Lax’s opinion logically applies to all periods in which her condition was 25 stable, including before the date last insured. Second, she says, Dr. Lax’s lifting and 26 carrying restriction is supported by objective evidence. She points out that the imaging 27 reports attached to Dr. Lax’s checkbox opinion show increasing dilation of the conduit 28 between the ascending and descending aorta, a circumstance that places her at an increased 1 risk of rupture. Third, and relatedly, she asserts that it was error to rely on the non- 2 examining physicians’ opinions, since their opinions were based upon limited imaging 3 reports, not her most recent imaging. Fourth, she contends it does not necessarily follow 4 that because the March 2013 assessment contains no functional limitations, that she had no 5 limitations at that time. Furthermore, she asserts it was error to give the March 2013 6 assessment, which contains no opinions, controlling weight over the checkbox opinion 7 from the same doctor regarding the same condition. The Commissioner responds that the 8 ALJ’s analysis is reasonable. 9 Substantial evidence supports the ALJ’s evaluation of the medical-opinion 10 evidence. Duvall’s argument ignores the full context of the ALJ’s decision. As explained 11 above, the ALJ thoroughly reviewed Duvall’s medical records and found that such records 12 “fail to support a finding of disabling functional loss.” AR 25–26. The ALJ also found 13 that Duvall’s condition remained stable throughout the disability period and did not 14 deteriorate. AR 25. A review of the cited records shows that the ALJ did not cherry-pick 15 treatment notes in an attempt to mischaracterize Duvall’s condition. The records indeed 16 indicate that Duvall was doing well from a cardiac standpoint; they do not indicate that she 17 was functionally limited. Therefore, the ALJ’s findings are supported by substantial 18 evidence. 19 With the foregoing in mind, the ALJ’s analysis of the opinion evidence is also 20 supported by substantial evidence, and plainly so. Duvall first challenges the ALJ’s 21 analysis of Dr. Lax’s 2013 assessment letter. She argues it was error to conclude that she 22 has no functional limitations merely because the letter mentions no such limitations. But, 23 as explained above, the ALJ rationally concluded that Duvall’s cardiology records “fail to 24 support a finding of disabling functional loss.” It was thus rational (and consistent) to infer 25 from Dr. Lax’s failure to “suggest any functional limitations” during the disability period 26 that Duvall had no such limitations. AR 26. Duvall’s argument that the foregoing 27 conclusion does not necessarily follow is also a rational view of the evidence. However, 28 when both the claimant’s and ALJ’s interpretations are rational, it is the ALJ’s that governs. 1 See Burch, 400 F.3d at 679. 2 For much the same reason, substantial evidence also supports the ALJ’s rejection of 3 the five-pound lifting and carrying restriction as “not supported by objective evidence.” 4 AR 27. Based upon the ALJ’s thorough review of Duvall’s medical records and 5 consequent findings that Duvall was stable and not functionally limited, it was rational for 6 the ALJ to conclude that the five-pound lifting and carrying restriction is not supported by 7 objective evidence. An “incongruity” between a physician’s opinion and the claimant’s 8 medical records, like the one identified here by the ALJ, is a specific and legitimate reason 9 for rejecting the opinion. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) 10 (holding ALJ provided a specific and legitimate reason by explaining that the claimant’s 11 “medical records d[id] not provide support for the limitations set out in the Questionnaire”). 12 Duvall argues that the five-pound lifting and carrying restriction is supported by 13 objective evidence, namely the three reports attached to the questionnaire. She is merely 14 urging the Court to adopt her interpretation of the evidence, however, without regard for 15 whether the ALJ’s interpretation is rational. As explained above, it is. See Burch, 400 16 F.3d at 679. She also argues that the non-examining physicians’ opinions alone do not 17 constitute substantial evidence for rejecting Dr. Lax’s opinion. See Tonapetyan v. Halter, 18 242 F.3d 1144, 1149 (9th Cir. 2001). This argument misses the mark, though, because the 19 ALJ’s specific and legitimate reason is not that the non-examining physicians disagree with 20 Dr. Lax’s opinion—it is that Dr. Lax’s opinion is not supported by objective evidence. The 21 latter is a specific and legitimate reason for rejecting Dr. Lax’s opinion. See Burrell, 775 22 F.3d at 1140 (stating that a treating physician’s opinions may be rejected as unsupported 23 by objective medical evidence). 24 Duvall also argues that it was error to discount the opinion based upon it being 25 rendered after the date last insured. She might be correct if this were the ALJ’s sole reason, 26 but it was not. The ALJ’s rejection of the opinion on an additional substantive ground, i.e., 27 lack of objective medical support, renders any such error harmless. See Batson, 359 F.3d 28 at 1195 (“[A]n ALJ may discredit treating physicians’ opinions that are . . . unsupported || by the record as a whole, or by objective medical findings.” (internal citations omitted)). 2 Duvall’s claims of error are without merit. Accordingly, 3 IT IS ORDERED that the decision of the Commissioner of Social Security is 4|| affirmed. The Clerk of Court is directed to enter judgment accordingly and close this case. 5 Dated this 23rd day of September, 2019. 6 Whe wOerl 8 Maria Davila 9 United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -15-