(SS) Flores v. Commissioner of Social Security ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 MARY DORIS FLORES, 10 Case No. 1:19-cv-00069-SKO Plaintiff, 11 v. ORDER ON PLAINTIFF’S SOCIAL 12 SECURITY COMPLAINT ANDREW SAUL, 13 Commissioner of Social Security, 14 Defendant. (Doc. 1) 15 16 _____________________________________/ 17 18 I. INTRODUCTION 19 20 On January 15, 2019, Plaintiff Mary Doris Flores (“Plaintiff”) filed a complaint under 21 42 U.S.C. § 405(g) seeking judicial review of a final decision of the Commissioner of Social 22 Security (the “Commissioner” or “Defendant”) denying her application for disability insurance 23 benefits (“DIB”) and supplemental security income (“SSI”) under Title II of the Social Security Act 24 (the “Act”). The matter is currently before the Court on the parties’ briefs, which were submitted, 25 without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.1 26 27 28 1 The parties consented to the jurisdiction of a U.S. Magistrate Judge. (Docs. 8, 17.) 1 2 On July 9, 2015, Plaintiff protectively filed an application for DIB payments, and on July 3 13, 2015, Plaintiff filed an application for SSI payments, alleging she became disabled on August 4 8, 2014 due to Meniere’s disease and vertigo. (Administrative Record (“AR”) 63, 176–79.) 5 Plaintiff was born on December 13, 1951 and was 63 years old as of the alleged onset date. (AR 6 178.) Plaintiff has a college education, past work experience as a customer service clerk and a 7 teacher’s aide, and last worked full-time in approximately 2014. (AR 66, 71–72.) 8 A. Relevant Medical Evidence2 9 1. Baz Allergy Asthma & Sinus Center 10 Plaintiff established care with Baz Allergy Asthma & Sinus Center (“Baz”) in early 2009 11 for an allergy problem. (See AR 308–18.) A Baz allergist3 saw Plaintiff on August 14, 2009, and 12 noted that Plaintiff had right-sided hearing deficit and dizziness. (AR 325.) An allergist saw 13 Plaintiff on November 13, 2009, and noted that Plaintiff had “decreased hearing” in her left ear 14 but that it had “improved.” (AR 323.) On February 11, 2010, the allergist noted that Plaintiff’s 15 “left ear [was] much better, still having some buzzing in [right] ear.” (AR 327.) The allergist 16 recommended that Plaintiff resume her Claritin prescription, take Nasonex daily, and follow up 17 with her primary care physician. (AR 328.) On May 13, 2010, the allergist refilled Plaintiff’s 18 medications and noted that Plaintiff’s ear issues were “much better[.]” (AR 329.) 19 2. William Cusick, D.O. 20 On April 29, 2015, following an evaluation of Plaintiff, family practice physician William 21 Cusick opined in a letter that Plaintiff “suffers significant disability from hearing loss and vertigo 22 that she should qualify for permanent disability.” (AR 333.) Dr. Cusick included other notes from 23 the evaluation, including his diagnosis of Plaintiff with hypertension, insomnia, knee pain, and 24 Meniere’s syndrome. (AR 335.) Plaintiff described her symptoms to Dr. Cusick as “air pressure” 25 which “provokes vertigo, nausea and vomiting” and hearing loss. (AR 355.) Dr. Cusick provided 26 27 2 As Plaintiff’s assignments of error are generally limited to contentions regarding her hearing loss and vertigo, (see Doc. 13 at 4–12), the summary of medical evidence is generally limited to evidence relevant to those impairments. 28 3 Plaintiff was seen by multiple different allergists during her time at Baz, and this medical evidence summary refers 1 Plaintiff with educational materials for lifestyle changes to help with her Meniere’s disease and 2 provided referrals to an audiologist and ear, nose, and throat specialist. (AR 356.) 3 3. Community Care Oakhurst 4 On or about July 18, 2014, Plaintiff saw family nurse practitioner Sandra Peck. (AR 337.) 5 Ms. Peck worked under the supervision of Plaintiff’s primary care physician, family practice 6 physician Daniel Schaffner, M.D., at Community Care Oakhurst. (See AR 337.) Ms. Peck noted 7 that Plaintiff had hearing loss, vertigo, nausea, and Meriere’s disease, and suggested that Plaintiff 8 get Meclizine over the counter for dizziness and try nasal spray for her Meniere’s disease. (AR 9 337–38.) Plaintiff returned to Ms. Peck on August 8, 2014, and Ms. Peck noted that Plaintiff’s 10 medicine helped, but Plaintiff still did not “know when these episodes are going to hit her” and the 11 episodes were sometimes “severe.” (AR 375.) Ms. Peck noted Plaintiff had hearing loss in her 12 right ear, nausea with dizzy episodes, and dizziness. (AR 375.) Ms. Peck opined that Plaintiff 13 was able to perform work and perform the essential functions of her position. (AR 393.) Ms. Peck 14 also opined that Plaintiff would need to be absent from work six times per year for medical 15 evaluations. (AR 394.) 16 On August 23, 2015, Dr. Schaffner noted that Plaintiff has “severe hearing problems and 17 wants to get a hearing aid and needs an evalauation [sic].” (AR 470.) Dr. Schaffner noted that 18 Plaintiff “has slowly progressive hearing loss” which can be affected by “the weather.” (AR 470.) 19 Dr. Schaffner recommended Plaintiff try a “pocket talker” for the hearing loss and may need to 20 progress to hearing aids. (AR 472.) 21 4. Jagdez Singh, M.D. 22 On February 2, 2016, otolaryngologist Jagdez Singh evaluated Plaintiff for dizziness, 23 hearing loss, and tinnitus. (AR 495–98.) Dr. Singh noted that Plaintiff had been experiencing 24 dizziness for approximately twenty years, which had slowly progressed, and that her prescriptions 25 do not help with the dizziness. (AR 495.) Dr. Singh noted that Plaintiff had “bilateral ringing in 26 the ears” and has had progressive hearing loss for about five years. (AR 495.) Dr. Singh stated 27 that even with Plaintiff’s hearing aids, which she “acquired around September 2015,” Dr. Singh 28 had to speak loudly for Plaintiff to hear him. (AR 496.) Dr. Singh noted that Plaintiff’s ear canals 1 were normal, and an audiogram revealed “a bilateral severe sensorineural hearing loss.” (AR 496.) 2 Dr. Singh concluded that Plaintiff required hearing aids. (AR 496.) 3 5. Raju Lakshmanaraju, M.D. 4 On September 17, 2015, internist Raju Lakshmanaraju evaluated Plaintiff and submitted 5 an internal medicine evaluation on her behalf. (AR 484–89.) Dr. Lakshamanaraju noted that 6 Plaintiff had bilateral hearing aids, but her “canals and tympanic membranes” were normal. (AR 7 486.) Dr. Lakshmanaraju also noted that Plaintiff’s cranial nerves were “[g]rossly intact except 8 for bilateral sensorineural hearing loss.” (AR 488.) Dr. Lakshmanaraju diagnosed Plaintiff with 9 chronic objective vertigo, secondary to Meniere’s disease, which Plaintiff “manages with 10 symptomatic treatment”; and chronic, progressive bilateral sensorineural hearing loss, worse in the 11 right ear, which Plaintiff “manages with hearing aids.” (AR 488.) Dr. Lakshmanaraju opined that 12 Plaintiff could stand/walk and sit six hours in an eight-hour work day, did not need any assistive 13 devices, could lift ten pounds occasionally and frequently, was incapable of performing postural 14 activities, had no manipulative limitations, and was incapable of performing environmental 15 activities due to her vertigo. (AR 489.) 16 6. Willis Callins, M.D. 17 On March 9, 2016, otolaryngologist Willis Callins performed a consultative evaluation 18 without examining Plaintiff and only reviewing the medical evidence. (See AR 504–509.) Dr. 19 Callins opined that the medical evidence did not support diagnoses of Meniere’s disease, dizziness, 20 hearing loss, or tinnitus. (AR 506.) Dr. Callins further opined that the medical evidence did not 21 support any significant impairment, that the alleged impairments had no more than a minimal 22 impact on Plaintiff’s functioning, and that “[n]o RFC communicative or noise related limitation is 23 warranted.” (AR 506.) Dr. Callins found that all of Plaintiff’s allege impairments were non severe. 24 (AR 507.) 25 7. State Agency Physicians 26 On September 3, 2015, F. Greene, M.D., a Disability Determinations Service medical 27 consultant, assessed the severity of Plaintiff’s impairments and Plaintiff’s physical RFC. (AR 58– 28 60.) Dr. Greene opined that Plaintiff could lift/carry 20 pounds occasionally and 10 pounds 1 frequently; sit, stand and walk six hours in an eight-hour workday; push/pull unlimited amounts; 2 climb ramps/stairs frequently and ladders/ropes/scaffolds never; balance frequently; stoop, kneel, 3 crouch, and crawl occasionally; had limited hearing in both ears, unlimited speaking, should be 4 limited to occasional exposure to loud ambient noise; should avoid concentrated exposure to 5 vibration, and avoid hazardous machinery. (AR 58–60.) 6 Upon reconsideration, on February 17, 2016, another Disability Determinations Service 7 medical consultant, D. Tayloe, M.D., affirmed Dr. Greene’s findings. (AR 83–85.) 8 B. Administrative Proceedings 9 The Commissioner denied Plaintiff’s application for benefits initially on September 3, 10 2015, and again on reconsideration on February 17, 2016. (AR 52–73, 76–101.) On April 5, 2016, 11 Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (AR 119.) 12 On January 3, 2018, Plaintiff appeared with counsel and testified before an ALJ as to her 13 alleged disabling conditions. (AR 27–51.) Plaintiff, who was not wearing her hearing aids, 14 testified she has trouble hearing and asked the ALJ and her attorney to repeat their questions 15 multiple times throughout the hearing. (See AR 31–45.) When the ALJ asked Plaintiff why she 16 was not wearing her hearing aids that day, Plaintiff responded that the hearing aids do not help her 17 understand somebody speaking and she “just hear[s] noise.” (AR 31–32.) Plaintiff testified she 18 had problems with vertigo, headaches and nausea caused by her Meniere’s disease. (AR 35.) 19 Plaintiff testified that she would get vertigo approximately four or five times a week lasting for up 20 to twelve hours. (AR 35.) Plaintiff stated she takes meclizine for her nausea. (AR 36.) Plaintiff 21 stated that her hearing has gotten progressively worse beginning in 2007, and she can only hear 22 slightly out of her left ear now. (AR 37.) Plaintiff’s doctors believe her hearing loss was caused 23 by the Meniere’s disease. (AR 38.) Plaintiff cannot make meals or do other household chores that 24 involve bending down or any kind of movement that might cause dizziness. (AR 39.) Plaintiff 25 testified she very seldom leaves the house and she is prescribed hearing aids. (AR 42.) 26 A Vocational Expert (“VE”) testified at the hearing that Plaintiff had past work as a teacher 27 aide II, Dictionary of Occupational Titles (DOT) code 249.227-074, which was light work with a 28 1 specific vocational preparation (SVP)4 of 3; and a customer service clerk, DOT code 299.367-010, 2 which was light work with a SVP of 4. (AR 43.) The ALJ asked the VE to consider a person of 3 Plaintiff’s age, education, and with her work background. (AR 43.) The VE was also to assume 4 this person was able to lift and carry twenty pounds occasionally and ten pounds frequently, sit for 5 six hours of an eight-hour workday, stand and/or walk for six hours of an eight-hour workday, 6 perform frequent climbing of ramps and stairs and balancing, perform occasional stooping, 7 kneeling, crouching, or crawling, is precluded from climbing ladders, ropes, or scaffolds, should 8 avoid more than occasional exposure to loud ambient noises, avoid concentrated exposure to 9 vibration, fumes, hazards, and uneven terrain, avoid unprotected heights, can perform work tasks 10 that do not require fine hearing discrimination and which allow for face-to-face communication of 11 directions, and can perform work tasks that allow for the wearing of hearing aids in the workplace. 12 (AR 44.) The VE testified that such a person could not perform Plaintiff’s past relevant work. 13 (AR 44.) 14 In a second hypothetical, the ALJ asked the VE to consider an individual with the 15 limitations described in the first hypothetical except that the person does not have the face-to-face 16 communication limitation. (AR 45.) The VE testified that such a person could perform Plaintiff’s 17 past relevant work. (AR 46.) Plaintiff’s attorney posed a third hypothetical, which involved an 18 individual with the limitations in the first two hypotheticals except that the person is incapable of 19 performing postural activities and environmental activities. (AR 49.) The VE testified that such 20 a person could not perform Plaintiff’s past relevant work or any other work. (AR 49.) 21 C. The ALJ’s Decision 22 In a decision dated April 17, 2018, the ALJ found that Plaintiff was not disabled, as defined 23 by the Act. (AR 15–22.) The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. 24 § 404.1520. (AR 17–22.) The ALJ decided that Plaintiff had not engaged in substantial gainful 25 activity since August 8, 2014, the alleged onset date (step one). (AR 17.) At step two, the ALJ 26 4 Specific vocational preparation (SVP), as defined in DOT, App. C, is the amount of lapsed time required by a typical 27 worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation. DOT, Appendix C – Components of the Definition Trailer, 1991 WL 688702 (1991). 28 Jobs in the DOT are assigned SVP levels ranging from 1 (the lowest level – “short demonstration only”) to 9 (the 1 found Plaintiff had severe impairments of bilateral sensorineural hearing loss and vertigo. (AR 2 17.) The ALJ found that Plaintiff did not have an impairment or combination of impairments that 3 met or medically equaled one of the Listings (step three). (AR 18.) 4 The ALJ assessed Plaintiff’s RFC and applied the RFC assessment at steps four and five. 5 See 20 C.F.R. § 404.1520(a)(4) (“Before we go from step three to step four, we assess your residual 6 functional capacity … We use this residual functional capacity assessment at both step four and 7 step five when we evaluate your claim at these steps.”). The ALJ determined that Plaintiff retained 8 the RFC: 9 to perform work as follows[:] [Plaintiff] can lift 20 pounds occasionally, lift or carry 10 pounds frequently; stand and walk 6 out of 8 hours a day; sit 6 out of 8 hours a 10 day; frequently climb ramps, stairs and balance. [Plaintiff] can occasionally stoop, kneel, crouch and crawl. [Plaintiff] can do work that does not involve: climbing 11 ladders, ropes and scaffolds; concentrated exposure to vibrations, fumes, hazards, 12 uneven terrain; or unprotected heights. [Plaintiff] can occasionally be exposed to loud ambient noise, and is able to perform work tasks that do not require fine hearing 13 discrimination, and which allow use of hearing aids in the workplace. 14 (AR 18.) Although the ALJ recognized that Plaintiff’s impairments “could reasonably be expected 15 to cause the alleged symptoms[,]” she rejected Plaintiff’s subjective testimony as “not entirely 16 consistent with the medical evidence and other evidence in the record[.]” (AR 19.) At step five, 17 the ALJ found that Plaintiff could perform her past relevant work. (AR 21–22.) 18 Plaintiff sought review of this decision before the Appeals Council, which denied review 19 on May 25, 2018. (AR 1–6.) Therefore, the ALJ’s decision became the final decision of the 20 Commissioner. 20 C.F.R. § 404.981. III. LEGAL STANDARD 21 A. Applicable Law 22 An individual is considered “disabled” for purposes of disability benefits if he or she is 23 unable “to engage in any substantial gainful activity by reason of any medically determinable 24 physical or mental impairment which can be expected to result in death or which has lasted or can 25 be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). 26 However, “[a]n individual shall be determined to be under a disability only if [her] physical or 27 mental impairment or impairments are of such severity that [s]he is not only unable to do [her] 28 1 previous work but cannot, considering [her] age, education, and work experience, engage in any 2 other kind of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 3 “The Social Security Regulations set out a five-step sequential process for determining 4 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 5 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520). The Ninth Circuit has provided 6 the following description of the sequential evaluation analysis: 7 In step one, the ALJ determines whether a claimant is currently engaged in substantial 8 gainful activity. If so, the claimant is not disabled. If not, the ALJ proceeds to step two and 9 evaluates whether the claimant has a medically severe impairment or combination of impairments. 10 If not, the claimant is not disabled. If so, the ALJ proceeds to step three and considers whether the 11 impairment or combination of impairments meets or equals a listed impairment under 20 C.F.R. 12 pt. 404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If not, the ALJ 13 proceeds to step four and assesses whether the claimant is capable of performing her past relevant 14 work. If so, the claimant is not disabled. If not, the ALJ proceeds to step five and examines 15 whether the claimant has the [RFC] . . . to perform any other substantial gainful activity in the 16 national economy. If so, the claimant is not disabled. If not, the claimant is disabled. Burch v. 17 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “If a claimant is found to be ‘disabled’ or ‘not 18 disabled’ at any step in the sequence, there is no need to consider subsequent steps.” Tackett, 180 19 F.3d at 1098 (citing 20 C.F.R. § 404.1520). 20 “The claimant carries the initial burden of proving a disability in steps one through four of 21 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 22 1989)). “However, if a claimant establishes an inability to continue her past work, the burden 23 shifts to the Commissioner in step five to show that the claimant can perform other substantial 24 gainful work.” Id. (citing Swenson, 876 F.2d at 687). 25 B. Scope of Review 26 “This court may set aside the Commissioner’s denial of disability insurance benefits [only] 27 when the ALJ’s findings are based on legal error or are not supported by substantial evidence in 28 the record as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence is 1 defined as being more than a mere scintilla, but less than a preponderance.” Edlund v. Massanari, 2 253 F.3d 1152, 1156 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098). “Put another way, 3 substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to 4 support a conclusion.” Id. (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). 5 “This is a highly deferential standard of review …” Valentine v. Comm’r of Soc. Sec. 6 Admin., 574 F.3d 685, 690 (9th Cir. 2009). “The ALJ’s findings will be upheld if supported by 7 inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th 8 Cir. 2008) (citation omitted). Additionally, “[t]he court will uphold the ALJ’s conclusion when 9 the evidence is susceptible to more than one rational interpretation.” Id.; see, e.g., Edlund, 253 10 F.3d at 1156 (citations omitted) (“If the evidence is susceptible to more than one rational 11 interpretation, the court may not substitute its judgment for that of the Commissioner.”). 12 Nonetheless, “the Commissioner’s decision ‘cannot be affirmed simply by isolating a 13 specific quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting Sousa v. Callahan, 14 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a whole, 15 weighing both evidence that supports and evidence that detracts from the [Commissioner’s] 16 conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 17 Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.” 18 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., 19 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record 20 that ‘the ALJ’s error was inconsequential to the ultimate nondisability determination.’” 21 Tommasetti, 533 F.3d at 1038 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 22 2006)). “[T]he burden of showing that an error is harmful normally falls upon the party attacking 23 the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (citations omitted). 24 IV. DISCUSSION Plaintiff contends that the ALJ (1) erred in formulating Plaintiff’s RFC by failing to 25 26 properly account for Plaintiff’s hearing limitations and (2) erred in discounting Plaintiff’s 27 credibility. (See Doc. 13 at 4, 7.) The Commissioner responds that the ALJ properly accounted 28 1 2 Commissioner’s position. 3 A. The ALJ Properly Accounted for Plaintiff’s Hearing Limitations in the RFC. 4 1. Legal Standard 5 An RFC assessment is an “administrative finding” that is reserved to the Commissioner. 6 See 20 C.F.R. § 416.927(d)(2). The RFC is “the most [a claimant] can still do despite [his or her] 7 limitations.” 20 C.F.R. § 416.945(a); see also 20 C.F.R. Part 404, Subpart P, Appendix 2, § 8 200.00(c) (defining an RFC as the “maximum degree to which the individual retains the capacity 9 10 for sustained performance of the physical-mental requirements of jobs”). In formulating an RFC, 11 the ALJ weighs medical and other source opinions, including lay opinions, as well as the 12 claimant’s credibility. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226 (9th Cir. 13 2009). The RFC assessment must be supported by substantial evidence, and “must consider 14 limitations and restrictions imposed by all of an individual’s impairments, even those that are not 15 ‘severe.’” Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005); Buck v. Berryhill, 869 F.3d 16 1040, 1049 (9th Cir. 2017) (quoting SSR 96-8p). 17 18 2. Analysis 19 Dr. Singh opined that Plaintiff required hearing aids, and noted that during his evaluation 20 he had to speak loudly for Plaintiff to understand him even though she was wearing her hearing 21 aids. (AR 496.) The state agency physicians, Dr. Greene and Dr. Tayloe, opined that Plaintiff can 22 have occasional exposure to loud ambient noise and limited Plaintiff to light work. (AR 58–60, 23 83–85.) The ALJ gave “great weight” to the opinions of Dr. Singh, Dr. Greene, and Dr. Tayloe. 24 25 (AR 20.) In her RFC assessment, the ALJ determined that Plaintiff could “occasionally be exposed 26 to loud ambient noise, and is able to perform work tasks that do not require fine hearing 27 discrimination, and which allow use of hearing aids in the workplace.” (AR 18.) While Plaintiff 28 1 2 limitations in the RFC. (See Doc. 13 at 4.) 3 “[A]n RFC that fails to take into account a claimant’s limitations is defective.” Valentine 4 v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). However, “[t]here is no 5 requirement that the RFC recite medical opinions verbatim, rather the ALJ is responsible for 6 translating and incorporating medical findings into a succinct RFC.” McIntosh v. Colvin, No. 16– 7 cv–0963–JAH–BGS, 2018 WL 1101102, at *5 (S.D. Cal. Feb. 26, 2018) (citing Rounds v. Comm’r 8 Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015)). In other words, the ALJ “may incorporate 9 10 the opinions of a physician by assessing RFC limitations entirely consistent with, but not identical 11 to limitations assessed by the physician.” Ruiz v. Berryhill, No. 1:17–CV–00180–BAM, 2018 WL 12 4204257, at *5 (E.D. Cal. Sept. 4, 2018) (citing Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 13 1222–23 (9th Cir. 2010)); see also Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012) 14 (“[T]here is no requirement in the regulations for a direct correspondence between an RFC finding 15 and a specific medical opinion on the functional capacity in question.”). 16 Here, Plaintiff’s contention is unpersuasive for two reasons. First, Plaintiff does not clearly 17 18 and sufficiently state how she believes the ALJ’s RFC inaccurately describes her hearing 19 limitations and does not cite any case that supports her position in her opening brief.5 (See Doc. 20 13 at 4–7.) Second, and more importantly, the ALJ’s RFC assessment, including the incorporated 21 hearing limitations, is supported by substantial evidence, and the Court may not reweigh the 22 evidence. See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (“The ALJ is responsible 23 24 25 5 Plaintiff also makes statements in passing regarding the ALJ’s finding that Plaintiff could perform past relevant work, (Doc. 13 at 6–7), which are not clearly connected to her challenged issue of whether the ALJ’s RFC assessment 26 accurately described Plaintiff’s hearing limitations. If a plaintiff does not clearly raise an assertion of error in her opening brief, it is waived. Farley v. Colvin, 231 F. Supp. 3d 335, 341 (N.D. Cal. 2017). In any event, the Court finds 27 that the ALJ did not err in finding that Plaintiff could perform her past relevant work as a customer service clerk and teacher’s aide. Contrary to Plaintiff’s contention, both the teacher’s aide and customer service clerk jobs are classified 28 under the DOT as level 3, or moderate, noise level, with which Plaintiff’s RFC limitations are consistent. See DOT 1 2 the ALJ’s decision where the evidence is susceptible to more than one rational interpretation”); 3 Magallanes v. Bowen, 881 F.3d 747, 750 (9th Cir. 1989). 4 Specifically, the ALJ’s RFC assessment included hearing limitations that Plaintiff could 5 “occasionally be exposed to loud ambient noise, and is able to perform work tasks that do not 6 require fine hearing discrimination, and which allow use of hearing aids in the workplace.” (AR 7 18.) These limitations are consistent with the limitations prescribed by the state agency physicians. 8 (See AR 58–60, 83–85.) Opinions of non-examining physicians “may serve as substantial 9 10 evidence when they are supported by other evidence in the record and are consistent with it.” 11 Andrews, 53 F.3d at 1041; Tonapetyan, 242 F.3d at 1149. The opinions the state agency physicians 12 are consistent with and supported by the medical evidence in the record—for example, Dr. 13 Lakshmanaraju’s assessment that Plaintiff’s bilateral hearing loss was managed with hearing aids 14 and Dr. Cusick’s assessment that Plaintiff’s hearing aids helped her hear her granddaughter speak. 15 (See, e.g., AR 488, 514.) 16 Further, contrary to Plaintiff’s contention, the Court does not find the ALJ’s RFC 17 18 assessment to be inconsistent with Dr. Singh’s findings. Dr. Singh found that Plaintiff required 19 hearing aids, and the ALJ accommodated that finding by stating that Plaintiff could not perform 20 tasks that required fine hearing discrimination and must be allowed to use hearing aids on the job. 21 (See AR 18.) Although Dr. Singh observed that he had to speak loudly for Plaintiff to hear him 22 despite her hearing aids, Plaintiff has not shown that this necessitates any additional limitation 23 beyond the ample hearing limitations included in the RFC, and “there is no requirement that the 24 25 RFC recite medical opinions verbatim.” McIntosh, 2018 WL 1101102, at *5. Also, Dr. Singh did 26 not opine that Plaintiff required any additional hearing accommodations beyond hearing aids, 27 despite his observation regarding his speech volume. (See AR 495–98.) 28 1 2 transcript highlighting that Plaintiff had to ask ALJ and her attorney to repeat their questions a few 3 times, (see Doc. 13 at 5), because Plaintiff was not wearing her hearing aids during the hearing. 4 (See AR 31.) If anything, this illustrates that although Plaintiff was not wearing her required 5 hearing aids during the hearing, she was able to hear and understand the majority of the questions 6 from the ALJ and her attorney. (See AR 31–46.) Accordingly, the Court finds that the ALJ’s RFC 7 assessment is supported by substantial evidence and she incorporated proper hearing limitations 8 in the RFC. 9 10 B. The ALJ Properly Discounted Plaintiff’s Subjective Symptom Statements. 11 1. Legal Standard 12 In evaluating the credibility of a claimant’s testimony regarding subjective pain, an ALJ 13 must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, 14 the ALJ must determine whether the claimant has presented objective medical evidence of an 15 underlying impairment that could reasonably be expected to produce the pain or other symptoms 16 alleged. Id. The claimant is not required to show that her impairment “could reasonably be 17 18 expected to cause the severity of the symptom [he] has alleged; [he] need only show that it could 19 reasonably have caused some degree of the symptom.” Id. (quoting Lingenfelter v. Astrue, 504 20 F.3d 1028, 1036 (9th Cir. 2007)). If the claimant meets the first test and there is no evidence of 21 malingering, the ALJ can only reject the claimant’s testimony about the severity of the symptoms 22 if he gives “specific, clear and convincing reasons” for the rejection. Id. As the Ninth Circuit has 23 explained: 24 25 The ALJ may consider many factors in weighing a claimant’s credibility, including (1) ordinary techniques of credibility evaluation, such as the claimant’s reputation 26 for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or 27 inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant’s daily activities. If the ALJ’s finding is supported 28 1 Tommasetti, 533 F.3d at 1039 (citations and internal quotation marks omitted); see also Bray v. 2 Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226–27 (9th Cir. 2009); 20 C.F.R. § 404.1529. 3 Other factors the ALJ may consider include a claimant’s work record and testimony from 4 physicians and third parties concerning the nature, severity, and effect of the symptoms of which 5 he complains. Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). 6 The clear and convincing standard is “not an easy requirement to meet” and it “is the most 7 demanding [standard] required in Social Security cases.” Garrison, 759 F.3d at 1015 (citation 8 omitted). “General findings are insufficient” to satisfy this standard. Burrell v. Colvin, 775 F.3d 9 1133, 1138 (9th Cir. 2014) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). 10 “[R]ather, the ALJ must identify what testimony is not credible and what evidence undermines 11 the claimant’s complaints.” Id. (quoting Lester, 81 F.3d at 834); see, e.g., Vasquez v. Astrue, 572 12 F.3d 586, 592 (9th Cir. 2008) (“To support a lack of credibility finding, the ALJ [is] required to 13 ‘point to specific facts in the record which demonstrate that [the claimant] is in less pain than she 14 claims.’” (quoting Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993)); cf. Burrell, 775 F.3d at 15 1138 (stating that the Ninth Circuit’s “decisions make clear that [courts] may not take a general 16 finding . . . and comb the administrative record to find specific” support for the finding). 17 2. Analysis 18 The ALJ found Plaintiff’s “medically determinable impairments could reasonably be 19 expected to cause the alleged symptoms.” (AR 19.) The ALJ also found that “[Plaintiff’s] 20 statements concerning the intensity, persistence and limiting effects of these symptoms are not 21 entirely consistent with the medical evidence and other evidence in the record[.]” (AR 19.) Since 22 23 the ALJ found Plaintiff’s “medically determinable impairments could reasonably be expected to 24 cause the alleged symptoms,” the only remaining issue is whether the ALJ provided “specific, 25 clear and convincing reasons” for her adverse credibility finding. See Vasquez, 572 F.3d at 591. 26 The ALJ found that Plaintiff’s testimony was less than credible because it was inconsistent 27 with the objective medical evidence, including significant evidence of successful treatment and 28 1 2 contends that the ALJ failed to properly evaluate her testimony. (Doc. 13 at 7.) The Court 3 disagrees and finds that the ALJ’s reasons for discounting Plaintiff’s credibility were specific, clear 4 and convincing. 5 First, the ALJ noted that Plaintiff’s testimony, including her testimony that her hearing aids 6 did not help her understand people speaking, (AR 31), was inconsistent with the medical evidence. 7 The ALJ referenced multiple specific treatment notes that contradicted Plaintiff’s claim that her 8 hearing aids did not help, including Dr. Lakshmanaraju’s opinion that Plaintiff’s hearing aids 9 10 “help[] her quite a bit.” (AR 19) (citing AR 484). The record also contains multiple statements 11 from physicians that Plaintiff’s hearing aids have been a successful treatment.6 (See, e.g., AR 488, 12 506, 514.) “Impairments that can be controlled effectively with medication are not disabling.” 13 Warre v. Comm’r of Soc. Sec., 439 F.3d 1001, 1006 (9th Cir. 2006). Thus, the Court finds that 14 this is a specific clear and convincing reason to discount Plaintiff’s credibility. 15 Second, the ALJ noted that as to Plaintiff’s complaints of vertigo symptoms and hearing 16 loss, Plaintiff had not been treated for either condition since May 2017, “which shows that 17 18 [Plaintiff’s] condition is not as limiting as alleged and treatment has been beneficial.” (AR 20.) 19 Unexplained gaps in treatment or insufficiently explained basis for a lack of treatment may be 20 legitimately considered in making an adverse credibility determination. Fair v. Bowen, 885 F.2d 21 597, 603-04 (1989). Here, the ALJ correctly noted a lack of treatment starting in May 2017 that 22 was not adequately explained by Plaintiff, and the Court finds that this is a specific clear and 23 24 25 26 6 The Court notes that one treatment record from Dr. Cusick states both that Plaintiff’s hearing aids have helped her hear her granddaughter speak and that they have only worked about half the time. (See AR 514.) While this appears to 27 be a contradiction, the ALJ’s interpretation of the medical evidence as a whole was certainly rational at the very least, and it is the ALJ’s role to resolve ambiguities and contradictions in the medical evidence, Andrews, 53 F.3d at 1041. 28 Thus, the Court will not disturb the ALJ’s interpretation of the objective medical evidence as it relates to the ALJ’s RFC 1 2 F.3d at 681. Thus, the Court finds that the ALJ properly evaluated Plaintiff’s credibility.7 3 V. CONCLUSION AND ORDER 4 Based on the foregoing, the Court finds that the ALJ’s decision is supported by substantial 5 evidence and is therefore AFFIRMED. The Clerk of this Court is DIRECTED to enter judgment 6 in favor of Defendant Andrew Saul, Commissioner of Social Security, and against Plaintiff. 7 8 IT IS SO ORDERED. 9 Sheila K. Oberto Dated: July 9, 2020 /s/ . 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 7 The Court notes that even though there was significant medical evidence to contradict Plaintiff’s claim that her hearing aids did not help her, and that her vertigo was significantly debilitating, the ALJ included appropriate limitations related 28 to the hearing and vertigo conditions in the RFC nonetheless. (See AR 18.) Thus, any error in the ALJ’s evaluation of