(SS) Callahan v. Commissioner of Social Security ( 2023 )

1 + 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 STEPHANIE ELISE CALLAHAN, Case No. 1:22-cv-00339-SKO 10 Plaintiff, 11 v. ORDER ON PLAINTIFF’S SOCIAL 12 SECURITY COMPLAINT KILOLO KIJAKAZI, 13 Acting Commissioner of Social Security, 14 Defendant. (Doc. 1) _____________________________________/ 15 16 17 I. INTRODUCTION 18 19 Plaintiff Stephanie Elise Callahan (“Plaintiff”) seeks judicial review of a final decision of the 20 Commissioner of Social Security (the “Commissioner” or “Defendant”) denying her application for 21 disability insurance benefits (“DIB”) under the Social Security Act (the “Act”). (Doc. 1.) The matter 22 is currently before the Court on the parties’ briefs, which were submitted, without oral argument, to 23 the Honorable Sheila K. Oberto, United States Magistrate Judge.1 24 II. BACKGROUND 25 Plaintiff was born on August 28, 1966, has at least a high school education, and previously 26 worked as a pharmacy technician. (Administrative Record (“AR”) 31, 32, 116, 134, 151, 297, 302, 27 303, 357, 398.) Plaintiff filed a claim for DIB payments on February 13, 2019, alleging she became 28 1 disabled on October 7, 2018, due to sciatica, nephropathy, migraine syndrome, diabetes, diverticulitis 2 of the colon, short term memory loss, depression, and stress. (AR 277, 301, 357, 398.) 3 A. Relevant Evidence of Record2 4 In February 2017, licensed clinical psychologist Aimee Sanchez, Ph.D. performed a 5 comprehensive psychological examination of Plaintiff. (AR 722–31.) She observed Plaintiff to be 6 appropriately dressed and wearing clean clothing. (AR 722.) Plaintiff’s attitude and degree of 7 cooperation was deemed “adequate” for the exam, and the reliability of Plaintiff’s history was deemed 8 “good.” (AR 722.) She complained of poor attention and concentration, difficulties with multiple- 9 step commands, forgetfulness, mental confusion, and depression. (AR 723.) Plaintiff reported that 10 she: lives with relatives; can take care of self-dressing, self-bathing, and personal hygiene; is able to 11 drive; is able to pay bills or handle cash appropriately; is able to go out alone; can focus attention 12 during the interview; has no difficulty completing household tasks; and has no difficulty making 13 decisions. (AR 725.) Plaintiff’s relationships with family and friends were reported to be “good.” 14 (AR 725.) She reported “receiving prescribed medication for management of mood symptoms.” (AR 15 724.) 16 Upon mental examination, Dr. Sanchez found Plaintiff’s thought processes were coherent and 17 organized, and her thought content not delusional, bizarre, psychotic. (AR 726.) Plaintiff exhibited 18 no homicidal or paranoid ideation and denied hallucinations. (AR 726.) Her mood appeared to be 19 dysphoric with normal affect congruent with through content. (AR 726.) Dr. Sanchez described 20 Plaintiff as “continually tearful.” (AR 726.) Her speech was normal, and she was alert to time, place, 21 person, and purpose of the evaluation. (AR 726.) Dr. Sanchez noted that Plaintiff appeared to be of 22 low average intelligence. (AR 726.) Her fund of knowledge was appropriate, with intact abstract 23 thinking, judgment, and insight. (AR 727.) Dr. Sanchez found Plaintiff had intact immediate recall 24 and recalled two out of three objects on delay recall. (AR 727.) She was able to perform serial sevens 25 and simple calculations. (AR 727.) 26 Dr. Sanchez assessed Plaintiff with major depressive disorder. (AR 729.) According to Dr. 27 28 2 Because the parties are familiar with the medical evidence, it is summarized here only to the extent relevant to the 1 Sanchez, results of Plaintiff’s evaluation “indicate that she may be experiencing primarily mood 2 symptoms and anxiety which may interfere with her intellectual and cognitive functioning.” (AR 3 730.) Plaintiff’s performance on tasks related to working memory and average processing speed was 4 “borderline.” (AR 730.) Plaintiff’s prognosis was deemed to be fair. (AR 730.) 5 Dr. Sanchez opined that Plaintiff was mildly impaired as follows: in the ability to do detailed 6 and complex instructions; the ability to relate and interact with co-workers and public; the ability to 7 maintain concentration, attention, persistence, and pace; the ability to associate with day-to-day work 8 activity, including attendance and safety; the ability to accept instructions from supervisors; the ability 9 to maintain regular attendance in the work place and perform work activities on a consistent basis; 10 and the ability to perform work activities without special or additional supervision. (AR 730–31.) 11 Dr. Sanchez further opined that Plaintiff had no impairment in the ability to understand, remember, 12 and carry out simple one or two-step job instructions, and she was capable of handling funds. (AR 13 731.) 14 From November 2018 to January 2019, Plaintiff complained of intermittent left lower quadrant 15 pain due to diverticulitis. (AR 766, 1032, 1034.) Plaintiff underwent surgery in February 2019 to 16 remove the diseased segment of her colon. (AR 787, 924, 952–57.) Later that month, Plaintiff 17 reported that her diverticulitis pain was “completely resolved.” (AR 925.) She reported a recurrence 18 of pain in March 2019, but it had improved in May 2019 and was associated with constipation. (AR 19 962, 969.) In September 2019, Plaintiff denied any fevers, chills, nausea, vomiting, diarrhea, or 20 constipation. (AR 1441.) 21 Plaintiff presented for an internal medicine evaluation in January 2020 by Roger Wagner, 22 M.D. (AR 1566–71.) She reported that she cooks, cleans, drives, shops, performs her own activities 23 of daily living without assistance and does some walking for exercise. (AR 1567.) She reported that 24 she has “no symptomatology” of her diverticulitis. (AR 1567.) 25 In January 2020, state agency physician Pamela Hawkins, Ph.D., reviewed the record and 26 determined that Plaintiff’s medically determinable mental impairments of “depressive, bipolar, and 27 related disorders” were not severe. (AR 143–44.) In April 2020, state agency physician H. Amado, 28 M.D., reviewed the record on reconsideration and affirmed Dr. Hawkins’ findings that Plaintiff had 1 no severe mental impairments. (AR 160–61.) 2 Plaintiff presented for a psychiatric evaluation by Mary K. McDonald, Ph.D., in October 2020. 3 (AR 1588–95.) She was casually dressed, with poor hygiene and grooming. (AR 1591.) She was 4 oriented to person, place, and time, and her memory was “clear and functioning.” (AR 1591.) Dr. 5 McDonald found that Plaintiff’s ability to understand and recall work-related instructions was 6 “unimpaired,” and her judgment and insight were “excellent.” (AR 1591–92.) Plaintiff’s thought 7 process and speech were “clear and well organized” and her concentration and attention were 8 “excellent.” (AR 1592.) Dr. McDonald noted Plaintiff’s affect was “flat” and her mood “clinically 9 depressed.” (AR 1592–93.) According to Dr. McDonald, Plaintiff “presents with clear signs of 10 depression and anxiety that appear to be based on her medical issues but also due to physical abuse 11 and a long history of traumatic stress beginning in childhood,” and she diagnosed Plaintiff with “Post- 12 Traumatic Stress Disorder” and “Major Depressive Disorder recurrent without psychotic features.” 13 (AR 1593.) Her “prognosis . . . in terms of her ability to work” was deemed “poor.” (AR 1593.) Dr. 14 McDonald opined that Plaintiff was moderately impaired her ability to: understand and remember 15 detailed instructions; maintain attention and concentration for extended periods; accept instructions 16 from supervisors and respond appropriately to criticism; perform activities within a schedule, maintain 17 regular attendance and be punctual within customary tolerances; function independently and sustain 18 an ordinary routine without special supervision; complete a normal workday/workweek without 19 interruptions from psychologically based symptoms and perform at a consistent pace; interact with 20 coworkers and the general public; and withstand the stress of a routine workday and deal with various 21 changes in the work setting. (AR 1594–95.) Dr. McDonald also opined that Plaintiff was mildly 22 impaired in her ability to understand, remember, and carry out very short and simple instructions. 23 (AR 1594.) 24 B. Plaintiff’s Statements 25 In May 2018, Plaintiff completed an adult function report. (AR 320–28.) Plaintiff reported 26 that she is “always in pain,” she has swelling in her hands, and she “can’t manage [her] bowel 27 movements.” (AR 320.) She also reported “balance issues.” (AR 321.) When asked to describe 28 1 her kids up, prepares breakfast, cleans house, prepares dinner, makes sure the kids have completed 2 their homework, and puts the kids to bed. (AR 321.) She has disturbed sleep due to pain and feels 3 “anxious, depressed, [and] stressed.” (AR 321.) Plaintiff reported that she needs help putting on her 4 shoes and socks and that she gets “exhausted at times” while bathing. (AR 321.) She needs reminders 5 to take medication. (AR 321.) 6 Plaintiff prepares simple meals daily, loads and unloads the dishwasher, and does “light 7 housecleaning.” (AR 322.) She reported that she cannot lift and that it hurts to bend, squat, and twist. 8 (AR 323.) She can go out alone and shops in stores twice per week. (AR 323.) Plaintiff reported 9 using “automatic bill pay” because she forgets to pay bills. (AR 323.) She spends time with others, 10 and attends church and her children’s sports games. (AR 324.) According to Plaintiff, she has trouble 11 “thinking of words” and is “not good at completing tasks” due to a lack of concentration (AR 327.) 12 Plaintiff completed another adult function report in August 2019. (AR 378–85.) She 13 complained of constant pain in her back and legs and that her feet and hands hurt after 30 minutes of 14 use. (AR 378.) She also stated she has confusion and forgetfulness due to diabetes. (AR 386.) 15 Plaintiff stated she prepares simple meals, folds laundry, goes out alone, drives, uses public 16 transportation, shops for groceries, and handles her funds. (AR 380–81.) 17 C. Administrative Proceedings 18 The Commissioner denied Plaintiff’s application for benefits initially on January 23, 2020, 19 and again on reconsideration on April 30, 2020. (AR 180–83, 187–92.) Consequently, Plaintiff 20 requested a hearing before an Administrative Law Judge (“ALJ”). (AR 201–215.) The ALJ 21 conducted a hearing on April 23, 2021. (AR 40–70.) Plaintiff appeared at the hearing with her 22 attorney and testified as to her alleged disabling conditions. (AR 46–58.) 23 1. Plaintiff’s Testimony 24 Plaintiff testified that her health issues “kept getting worse” as of October 2018, when she was 25 hospitalized for diverticulitis. (AR 47.) She testified that she still has “issues and flare ups” that cause 26 pain about three times per year, which is made worse by stress. (AR 47, 54, 55.) Plaintiff testified 27 that she has bowel problems and that she has leakage if she tries to pick up anything heavier than five 28 pounds. (AR 54.) According to Plaintiff, she has neuropathy in her hands, arms, and legs, causing 1 numbness. (AR 55–56.) 2 She drives short distances and must take a half-hour break after driving for one hour. (AR 3 47.) Plaintiff testified that she could walk a block before stopping, with a cane, and that it takes her 4 half an hour. (AR 50, 53.) She could sit for an hour and a half before needing to change positions. 5 (AR 50.) 6 Plaintiff stated she lives with her cousin. (AR 48.) She has two children, whom she sees every 7 other weekend and on Wednesdays. (AR 48.) Plaintiff testified she completed high school. (AR 48.) 8 She takes Lexapro for depression. (AR 52.) 9 2. Vocational Expert’s Testimony 10 A Vocational Expert (“VE”) also testified at the hearing that Plaintiff had past work as a 11 pharmacy technician, Dictionary of Operational Titles (DOT) code 074.382-010, which was light 12 exertional work per the DOT, medium exertional work as performed, with a specific vocational 13 preparation (SVP)3 of 3. (AR 60.) The ALJ asked the VE to consider a person of Plaintiff’s age, 14 education, and with her work experience and posed a series of hypotheticals about this person. (AR 15 60–62.) The VE was to assume this person can perform work at the light exertional level with the 16 following additional limitations: occasionally pushing or pulling with the bilaterally lower 17 extremities; no climbing ladders, ropes or scaffolds; occasionally climbing ramps or stairs; 18 occasionally kneeling, stooping, crouching, or crawling; may require a cane for long distances and for 19 occasional balancing on uneven terrain; frequent fingering or feeling; must avoid even moderate 20 exposure to unprotected heights and dangerous moving machinery. (AR 60.) The VE testified that 21 such a person could perform Plaintiff’s past work per the DOT but not as performed, but they could 22 perform jobs in the national economy, such as information clerk, DOT code 237.367-018, which is 23 light work, with an SVP of 2; counter clerk, DOT code 249.366-010, light work, with an SVP of 2; 24 and usher, DOT code 344.677-014, light work, with an SVP of 2. (AR 61.) 25 The ALJ asked the VE, in a second hypothetical, to consider an individual with the same 26 3 Specific vocational preparation, as defined in DOT, App. C, is the amount of lapsed time required by a typical worker 27 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). Jobs in the DOT 28 are assigned SVP levels ranging from 1 (the lowest level – “short demonstration only”) to 9 (the highest level – over 10 1 limitations as set forth in the first hypothetical, but with frequent pushing and pulling with the bilateral 2 lower extremities. (AR 61.) The VE testified that such a person could perform Plaintiff’s past work 3 per the DOT but not as performed, but that they could perform the jobs previously identified. (AR 4 61–62.) The VE further testified that off task behavior is not allowed more than 15 percent of the 5 work time, i.e., time outside of the regularly scheduled breaks, and absenteeism is not allowed more 6 than one full day per month or no more than two portions of a workday. (AR 62.) 7 In a third hypothetical, Plaintiff’s attorney asked the VE to consider an individual with the 8 same limitations as set forth in the first hypothetical, but with occasional handling and fingering 9 instead of frequent. (AR 65.) The VE testified that such a person could not perform Plaintiff’s past 10 work, but could perform the jobs of counter clerk and usher. (AR 65.) Plaintiff’s attorney asked, in 11 a fourth hypothetical, whether the VE’s previously identified jobs would be available for the third 12 hypothetical person who needed a cane to ambulate, and the VE responded that they would. (AR 67.) 13 In a final hypothetical, Plaintiff’s attorney asked whether the previously identified jobs would be 14 available if the hypothetical person had to alternate between sitting and standing every hour for 10 15 minutes, and the VE testified that neither the counter clerk nor usher would be available. (AR 68.) 16 D. The ALJ’s Decision 17 In decision dated May 5, 2021, the ALJ found that Plaintiff not disabled. (AR 20–33.) The 18 ALJ conducted the five-step disability analysis set forth in 20 C.F.R. § 404.1520. (AR 23–33.) The 19 ALJ decided that Plaintiff last met the insured status requirements of the Act on June 30, 2019, and 20 she had not engaged in substantial gainful activity during the period from her alleged onset date of 21 October 7, 2018, through her date last insured of June 30, 2019 (step one). (AR 23.) At step two, the 22 ALJ found Plaintiff’s following impairments to be severe: diverticulitis; right breast cancer, in 23 remission; diabetes mellitus; obesity; degenerative disc disease; and arthropathies. (AR 23–26.) 24 Plaintiff did not have an impairment or combination of impairments that met or medically equaled 25 one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”) (step 26 three). (AR 26–27.) 27 28 1 The ALJ then assessed Plaintiff’s residual functional capacity (RFC)4 and applied the 2 assessment at steps four and five. See 20 C.F.R. § 404.1520(a)(4) (“Before we go from step three to 3 step four, we assess your residual functional capacity . . . . We use this residual functional capacity 4 assessment at both step four and step five when we evaluate your claim at these steps.”). The ALJ 5 determined that Plaintiff had the RFC: 6 to perform light work as defined in 20 CFR [§] 404.1567(b) except with the following additional limitations. [Plaintiff] could frequently push and pull with the bilateral 7 lower extremities. She could not climb ladders, ropes, or scaffolds; occasionally climb 8 ramps and stairs, kneel, stoop, crouch, or crawl; and may require the use of a cane for long distances and for occasional balancing on uneven terrain. She could frequently 9 finger or feel. She must avoid even moderate exposure to unprotected heights and dangerous machinery 10 11 (AR 27–31.) Although the ALJ recognized that Plaintiff’s impairments “could reasonably be 12 expected to cause the alleged symptoms[,]” the ALJ rejected Plaintiff’s subjective testimony as “not 13 entirely consistent with the medical evidence and other evidence in the record . . . .” (AR 29.) The 14 ALJ determined that, given her RFC, Plaintiff was not disabled because she was able to perform her 15 past relevant work of pharmacy technician as generally performed (step four). (AR 31.) The ALJ 16 also made the alternative finding that Plaintiff could perform a significant number of other jobs in the 17 local and national economies, specifically information clerk, counter clerk, and usher (step five). (AR 18 32–33.) The ALJ concluded Plaintiff was not disabled at any time from October 7, 2018, the alleged 19 onset date, through January 30, 2019, the date last insured. (AR 33.) 20 Plaintiff sought review of the ALJ’s decision before the Appeals Council, which denied review 21 on February 2, 2022. (AR 1–6.) Therefore, the decision became the final decision of the 22 Commissioner. 20 C.F.R. § 404.981. 23 /// 24 25 4 RFC is an assessment of an individual’s ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis of 8 hours a day, for 5 days a week, or an equivalent work schedule. TITLES II 26 & XVI: ASSESSING RESIDUAL FUNCTIONAL CAPACITY IN INITIAL CLAIMS, Social Security Ruling (“SSR”) 96-8p (S.S.A. July 2, 1996). The RFC assessment considers only functional limitations and restrictions that result from an individual’s 27 medically determinable impairment or combination of impairments. Id. “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record including, inter alia, medical records, lay evidence, and ‘the effects of 28 symptoms, including pain, that are reasonably attributed to a medically determinable impairment.’” Robbins v. Soc. Sec. 1 2 A. Applicable Law 3 An individual is considered “disabled” for purposes of disability benefits if he or she is unable 4 “to engage in any substantial gainful activity by reason of any medically determinable physical or 5 mental impairment which can be expected to result in death or which has lasted or can be expected to 6 last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). However, “[a]n 7 individual shall be determined to be under a disability only if [their] physical or mental impairment 8 or impairments are of such severity that [they are] not only unable to do [their] previous work but 9 cannot, considering [their] age, education, and work experience, engage in any other kind of 10 substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 11 “The Social Security Regulations set out a five-step sequential process for determining 12 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 180 13 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520); see also 20 C.F.R. § 416.920. The 14 Ninth Circuit has provided the following description of the sequential evaluation analysis: 15 In step one, the ALJ determines whether a claimant is currently engaged in substantial 16 gainful activity. If so, the claimant is not disabled. If not, the ALJ proceeds to step two and evaluates whether the claimant has a medically severe impairment or 17 combination of impairments. If not, the claimant is not disabled. If so, the ALJ proceeds to step three and considers whether the impairment or combination of 18 impairments meets or equals a listed impairment under 20 C.F.R. pt. 404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If not, the ALJ 19 proceeds to step four and assesses whether the claimant is capable of performing [their] 20 past relevant work. If so, the claimant is not disabled. If not, the ALJ proceeds to step five and examines whether the claimant has the [RFC] . . . to perform any other 21 substantial gainful activity in the national economy. If so, the claimant is not disabled. If not, the claimant is disabled. 22 23 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “If a claimant is found to be ‘disabled’ or ‘not 24 disabled’ at any step in the sequence, there is no need to consider subsequent steps.” Tackett, 180 25 F.3d at 1098 (citing 20 C.F.R. § 404.1520). 26 “The claimant carries the initial burden of proving a disability in steps one through four of the 27 analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). 28 “However, if a claimant establishes an inability to continue [their] past work, the burden shifts to the 1 Commissioner in step five to show that the claimant can perform other substantial gainful work.” Id. 2 (citing Swenson, 876 F.2d at 687). 3 B. Scope of Review 4 “This court may set aside the Commissioner’s denial of [social security] benefits [only] when 5 the ALJ’s findings are based on legal error or are not supported by substantial evidence in the record 6 as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence . . . is ‘more than a 7 mere scintilla,’” and means only “such relevant evidence as a reasonable mind might accept as 8 adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoting Consol. 9 Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). See also Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 10 2020). 11 “This is a highly deferential standard of review . . . .” Valentine v. Comm’r of Soc. Sec. Admin., 12 574 F.3d 685, 690 (9th Cir. 2009). The ALJ’s decision denying benefits “will be disturbed only if 13 that decision is not supported by substantial evidence or it is based upon legal error.” Tidwell v. Apfel, 14 161 F.3d 599, 601 (9th Cir. 1999). Additionally, “[t]he court will uphold the ALJ’s conclusion when 15 the evidence is susceptible to more than one rational interpretation.” Id.; see, e.g., Edlund v. 16 Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (“If the evidence is susceptible to more than one 17 rational interpretation, the court may not substitute its judgment for that of the Commissioner.”) 18 (citations omitted). 19 In reviewing the Commissioner’s decision, the Court may not substitute its judgment for that 20 of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). Instead, the Court must 21 determine whether the Commissioner applied the proper legal standards and whether substantial 22 evidence exists in the record to support the Commissioner’s findings. See Lewis v. Astrue, 498 F.3d 23 909, 911 (9th Cir. 2007). Nonetheless, “the Commissioner’s decision ‘cannot be affirmed simply by 24 isolating a specific quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting Sousa v. 25 Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a whole, 26 weighing both evidence that supports and evidence that detracts from the [Commissioner’s] 27 conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 28 Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.” 1 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., 454 2 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record that ‘the 3 ALJ’s error was inconsequential to the ultimate nondisability determination.’” Tommasetti v. Astrue, 4 533 F.3d 1035, 1038 (9th Cir. 2008) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th 5 Cir. 2006)). “[T]he burden of showing that an error is harmful normally falls upon the party attacking 6 the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (citations omitted). 7 IV. DISCUSSION 8 Plaintiff contends that the ALJ committed harmful error in failing to consider her mental health 9 impairments severe at step two by improperly discounting the opinion of examining psychologist Dr. 10 McDonald. (See Doc. 12 at 7–11; Doc. 15 at 2–3.) Plaintiff further contends that the ALJ erred in 11 their consideration of her subjective complaint testimony. (See Doc. 12 at 11–15.) 12 The Court disagrees with Plaintiff’s allegations of error and shall affirm the ALJ’s decision. 13 A. The ALJ Did Not Err at Step Two 14 1. Legal Standard 15 At step two of the sequential evaluation, the ALJ determines which of Plaintiff’s alleged 16 impairments are “severe” within the meaning of 20 C.F.R. § 404.1520(c). A severe impairment is 17 one that “significantly limits” a claimant’s “physical or mental ability to do basic work activities.” Id. 18 An ALJ must consider all the evidence at step two to determine whether a medically determinable 19 impairment significantly limits the claimant’s ability to perform basic work activities. Id. § 20 404.1520(a); Bowen v. Yuckert, 482 U.S. 137, 153 (1987). “An impairment or combination of 21 impairments may be found ‘not severe only if the evidence establishes a slight abnormality that has 22 no more than a minimal effect on an individual’s ability to work.’” Webb v. Barnhart, 433 F.3d 683, 23 686–87 (9th Cir. 2005) (quoting Social Security Ruling (“SSR”) 96–3p (1996)). The purpose of step 24 two is to operate as “a de minimis screening device to dispose of groundless claims.” Smolen v. 25 Chater, 80 F.3d 1273, 1290 (9th Cir. 1996); see also Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 26 2007) (the step two finding is “merely a threshold determination” that “only raises a prima facie case 27 of a disability.”); Buck v. Berryhill, 869 F.3d 1040, 1048–49 (9th Cir. 2017) (“Step two is merely a 28 threshold determination meant to screen out weak claims. It is not meant to identify the impairments 1 that should be taken into account when determining the RFC.”) (internal citations omitted). The 2 plaintiff bears the burden of proof at step two to show that an impairment qualifies as severe. Bowen, 3 482 U.S. at 146 n.5. 4 2. Analysis 5 In support of her argument that the ALJ erred at step two by failing to deem Plaintiff’s mental 6 impairments severe, Plaintiff relies solely on the limitations opined by psychiatrist Dr. McDonald. 7 (See Doc. 12 at 7–8.) 8 a. Medical Opinion Evidence Generally 9 Plaintiff’s claim for benefits is governed by the agency’s “new” regulations concerning how 10 ALJs must evaluate medical opinions for claims filed on or after March 27, 2017. 20 C.F.R. § 11 404.1520c. The regulations set “supportability” and “consistency” as “the most important factors” 12 when determining the opinions’ persuasiveness. 20 C.F.R. § 404.1520c(b)(2). And although the 13 regulations eliminate the “physician hierarchy,” deference to specific medical opinions, and assigning 14 “weight” to a medical opinion, the ALJ must still “articulate how [they] considered the medical 15 opinions” and “how persuasive [they] find all of the medical opinions.” 20 C.F.R. § 404.1520c(a)– 16 (b). 17 Recently, the Ninth Circuit has issued the following guidance regarding treatment of 18 physicians’ opinions after implementation of the revised regulations: 19 The revised social security regulations are clearly irreconcilable with our caselaw according special deference to the opinions of treating and examining physicians on 20 account of their relationship with the claimant. See 20 C.F.R. § 404.1520c(a) (“We 21 will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) . . . , including those from your medical sources.”). Our 22 requirement that ALJs provide “specific and legitimate reasons” for rejecting a treating or examining doctor’s opinion, which stems from the special weight given to such 23 opinions, see Murray, 722 F.2d at 501–02, is likewise incompatible with the revised regulations. Insisting that ALJs provide a more robust explanation when discrediting 24 evidence from certain sources necessarily favors the evidence from those sources— 25 contrary to the revised regulations. 26 Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). Accordingly, under the new regulations, “the 27 decision to discredit any medical opinion, must simply be supported by substantial evidence.” Id. at 28 787. 1 In conjunction with this requirement, “[t]he agency must ‘articulate . . . how persuasive’ it 2 finds ‘all of the medical opinions’ from each doctor or other source, and ‘explain how [it] considered 3 the supportability and consistency factors’ in reaching these findings.” Woods, 32 F.4th at 792 (citing 4 20 C.F.R. § 404.1520c(b)). See also id. § 416.920c(b). “Supportability means the extent to which a 5 medical source supports the medical opinion by explaining the ‘relevant . . . objective medical 6 evidence.’” Id. at 791–92 (quoting 20 C.F.R. § 404.1520c(c)(1)). See also id. § 416.920c(c)(1). 7 “Consistency means the extent to which a medical opinion is ‘consistent . . . with the evidence from 8 other medical sources and nonmedical sources in the claim.’” Id. at 792 (quoting 20 C.F.R. § 9 404.1520c(c)(2)). See also id. § 416.920c(c)(2). 10 As the Ninth Circuit also observed, 11 The revised regulations recognize that a medical source’s relationship with the claimant is still relevant when assessing the persuasiveness of the source’s opinion. See id. § 12 404.1520c(c)(3). Thus, an ALJ can still consider the length and purpose of the treatment relationship, the frequency of examinations, the kinds and extent of 13 examinations that the medical source has performed or ordered from specialists, and whether the medical source has examined the claimant or merely reviewed the 14 claimant’s records. Id. § 404.1520c(c)(3)(i)–(v). However, the ALJ no longer needs 15 to make specific findings regarding these relationship factors: 16 Woods, 32 F.4th at 792. “A discussion of relationship factors may be appropriate when ‘two or more 17 medical opinions . . . about the same issue are . . . equally well-supported . . . and consistent with the 18 record . . . but are not exactly the same.’” Id. (quoting § 404.1520c(b)(3)). See also id. § 19 416.920c(b)(3). “In that case, the ALJ ‘will articulate how [the agency] considered the other most 20 persuasive factors.’” Id. Finally, if the medical opinion includes evidence on an issue reserved to the 21 Commissioner, the ALJ need not provide an analysis of the evidence in his decision, even in the 22 discussions required by 20 C.F.R. § 404.1520c. See 20 C.F.R. § 404.1520b(c)(3). 23 With these legal standards in mind, the Court reviews the weight given to Dr. McDonald’s 24 opinion. 25 b. Dr. McDonald’s Opinion 26 In weighing Dr. McDonald’s opinion related to Plaintiff’s mental functioning, the ALJ 27 reasoned as follows: 28 1 persuasive. Dr. McDonald did not examine [Plaintiff] until October 2020, over a year 2 after the date last insured and she does not have a treating relationship with the claimant. She opined that [Plaintiff] would have some moderate limitations in 3 performing mental work activities, but the opinion is not consistent with the evidence during the time period being adjudicated, which did not shown [sic] any significant 4 mental abnormalities. Additionally, it is not entirely supported by her own examination findings, where [Plaintiff] had excellent judgment and insight, excellent concentration 5 and attention, intact memory, was cooperative, and made excellent eye contact. 6 (Exhibit B29F). Therefore, the opinion is not persuasive. 7 (AR 25.) 8 Plaintiff first asserts that the ALJ “discounted Dr. McDonald’s opinion because the 9 consultative examination took place one year after the expiration of Plaintiff’s insured status.” (Doc. 10 12 at 9.) It is not entirely clear, however, that the ALJ predicated the treatment of Dr. McDonald’s 11 opinion on the timing of her examination of Plaintiff. The fact that the ALJ went on to consider the 12 opinion’s consistency and supportability, discussed below, suggests the ALJ did not.5 However, even 13 assuming Plaintiff’s assertion is correct, such does not constitute error. As stated by the Ninth Circuit: 14 “We think it is clear that reports containing observations made after the period for disability are 15 relevant to assess the claimant’s disability. It is obvious that medical reports are inevitably rendered 16 retrospectively and should not be disregarded solely on that basis.” Smith v. Bowen, 849 F.2d 1222, 17 1225 (9th Cir. 1988) (internal citations omitted). See also Turner v. Comm’r of Soc. Sec., 613 F.3d 18 1217, 1228-29 (9th Cir. 2010) (“[E]vidence post-dating the [date last insured] is probative of . . . pre- 19 [date last insured] disability.”); Lester v. Chater, 81 F.3d 821, 832) (9th Cir. 1995) (“‘[M]edical 20 evaluations made after the expiration of a claimant’s insured status are relevant to an evaluation of 21 the preexpiration condition.’”) (quoting Smith, 849 F.2d at 1225). However, in this case, Plaintiff 22 does not establish that Dr. McDonald rendered her opinion retrospective to a period prior to Plaintiff’s 23 date last insured in June 2019. See, e.g., Morgan v. Colvin, No. 6:12-CV-1235-AA, 2013 WL 24 6074119, at *10 (D. Or. Nov. 13, 2013) (“[I]t is well-established that an ALJ may reject a medical 25 opinion, even that of a treating doctor, where ‘it was completed . . . years after claimant’s DLI and 26 was not offered as retrospective analysis.’”) (citation omitted); Capobres v. Astrue, No. CV 1:09-682- 27 28 5 In fact, the ALJ evaluated all the medical evidence of record, including that dated after June 2019. (See AR 29–31) 1 REB, 2011 WL 1114256 (D. Idaho Mar. 25, 2011) (ALJ did not err in rejecting opinion because it 2 was outside relevant time period and not controlling or persuasive before the DLI, nearly two and half 3 years earlier, where the opinion was not offered as retrospective to the relevant time period). Plaintiff 4 points to Dr. McDonald’s diagnosis of “Post-Traumatic Stress Disorder” that “appeared in childhood” 5 (see AR 1593), but mere diagnosis alone is not sufficient to establish a medically determinable 6 impairment, let alone functional limitations. See Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985). 7 Moreover, Dr. McDonald did not indicate any “relation back” of Plaintiff’s PTSD to any prior 8 condition(s) or symptom(s) experienced during the relevant period. Cf. Svaldi v. Berryhill, 720 F. 9 App’x 342, 343–44 (9th Cir. 2017) (where medical opinions “refer back” to the same chronic 10 condition and symptoms discussed in his physician’s opinion “from several years prior,” the “fact that 11 those opinions were issued significantly after [the plaintiff’s] DLI does not undercut the weight those 12 opinions are due”). 13 The Court further concludes that the ALJ properly evaluated the supportability and 14 consistency of Dr. McDonald’s opinion. As to consistency, the ALJ found Dr. McDonald’s opinion 15 that Plaintiff would have “some moderate limitations in performing mental work activities” generally 16 inconsistent with the medical evidence during the adjudicative period, which “did not show[] any 17 significant mental abnormalities.” (AR 25.) Plaintiff contends that discrediting Dr. McDonald’s 18 opinion on the ground that there is a lack of support in the medical record is not sufficiently specific. 19 (Doc. 12 at 10–11.) To the extent that Plaintiff relies on Embrey v. Bowen, 849 F.2d 418 (9th Cir. 20 l988), for the proposition that the ALJ must discuss the evidence supporting a conclusion with 21 sufficient specificity, Embrey is distinguishable. In Embrey, the ALJ concluded that the physicians’ 22 opinions of total disability were not supported “by sufficient objective findings and were contrary to 23 the preponderant conclusions mandated by those objective findings.” Id. at 421. The ALJ’s reasoning 24 indicated that there were objective factors to discuss, indeed, the ALJ listed certain findings, but failed 25 to provide any relevant discussion how the objective findings were weighed. Id. 26 This is distinct from a situation where, as here, the ALJ points to an absence of evidence, as 27 opposed to referring to unspecified evidence that “preponderates” a different conclusion than that 28 reached by the doctor. In other words, it is essentially impossible to discuss specifics that do not exist. 1 Cf. United States v. Newman, 144 F.3d 531, 543 n. 13 (7th Cir. 1998) (noting “the difficulty in proving 2 a negative proposition”). The Court cannot conclude that it is the ALJ’s duty to imagine findings, 3 among the world of possible findings that could theoretically have been made to support Dr. 4 McDonald’s conclusion, and then point to places in the record where those findings were not made. 5 Plaintiff’s briefing offers no findings, either. Other than Dr. McDonald’s conclusion, Plaintiff points 6 to no evidence in the medical record indicating she is moderately limited in her ability to perform 7 mental work abilities that the ALJ overlooked or failed to weigh, and a review of the record indicates 8 that the only evidence that potentially relates to an impairment in Plaintiff’s ability to socially function 9 are her own subjective statements (properly discredited, as discussed below). The ALJ cannot be 10 faulted for failing to specifically discuss evidence that does not exist. Under these circumstances, it 11 is sufficient for the ALJ to state that the medical evidence does not provide support for the limitations 12 imposed. 13 As to supportability, the ALJ appropriately found Dr. McDonald’s opinion was “not entirely 14 supported by her own examination findings,” which showed Plaintiff’s “excellent” judgment, insight, 15 concentration, and attention, and “clear and well organized” thought process and speech. (AR 1591– 16 92.) In addition, in a direct contradiction, Dr. McDonald on one hand opined Plaintiff was 17 “moderately limited” in her ability to “understand and remember detailed instructions” and “accept 18 instructions from supervisors” (AR 1594), but on the other hand found Plaintiff’s ability to 19 “understand and recall work-related instructions” was “unimpaired” (AR 1591). Internal 20 inconsistency in a physician’s opinion is a specific and legitimate reason to find an opinion less 21 persuasive. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (holding that an ALJ may 22 cite internal inconsistencies in a physician’s opinion). 23 In sum, the Court finds that the ALJ’s determination that Dr. McDonald’s opinion was not 24 persuasive is legally sufficient and supported by substantial evidence, and thus there was no error at 25 step two. 26 B. The ALJ Properly Discredited Plaintiff’s Testimony 27 1. Legal Standard 28 In evaluating the credibility of a claimant’s testimony regarding subjective pain, an ALJ must 1 engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, the ALJ 2 must determine whether the claimant has presented objective medical evidence of an underlying 3 impairment that could reasonably be expected to produce the pain or other symptoms alleged. Id. 4 The claimant is not required to show their impairment “could reasonably be expected to cause the 5 severity of the symptom [they] ha[ve] alleged; [they] need only show that it could reasonably have 6 caused some degree of the symptom.” Id. (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th 7 Cir. 2007)). If the claimant meets the first test and there is no evidence of malingering, the ALJ can 8 only reject the claimant’s testimony about the severity of the symptoms if they give “specific, clear 9 and convincing reasons” for the rejection.6 Id. As the Ninth Circuit has explained: 10 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 for 11 lying, prior inconsistent statements concerning the symptoms, and other testimony 12 by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and 13 (3) the claimant’s daily activities. If the ALJ’s finding is supported by substantial evidence, the court may not engage in second-guessing. 14 15 Tommasetti, 533 F.3d at 1039 (citations and internal quotation marks omitted); see also Bray v. 16 Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226–27 (9th Cir. 2009). Other factors the ALJ may 17 consider include a claimant’s work record and testimony from physicians and third parties concerning 18 the nature, severity, and effect of the symptoms of which he complains. Light v. Social Sec. Admin., 19 119 F.3d 789, 792 (9th Cir. 1997). 20 The clear and convincing standard is “not an easy requirement to meet,” as it is “‘the most 21 demanding required in Social Security cases.’” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 22 2014) (quoting Moore v. Comm’r of Social Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). General 23 findings are not enough to satisfy this standard; the ALJ “‘must identify what testimony is not credible 24 and what evidence undermines the claimant’s complaints.’” Burrell v. Colvin, 775 F.3d 1133, 1138 25 (9th Cir. 2014) (quoting Lester, 81 F.3d at 834). 26 2. Analysis 27 As set forth above, the ALJ found Plaintiff’s “medically determinable impairments could 28 1 reasonably be expected to cause the alleged symptoms.” (AR 29.) The ALJ also found that 2 “[Plaintiff’s] statements concerning the intensity, persistence and limiting effects of these symptoms 3 are not entirely consistent with the medical evidence and other evidence in the record.” (AR 29.) 4 Since the ALJ found Plaintiff’s “medically determinable impairments could reasonably be expected 5 to cause the alleged symptoms,” the only remaining issue is whether the ALJ provided “specific, clear 6 and convincing reasons” for Plaintiff’s adverse credibility finding. See Vasquez, 572 F.3d at 591. 7 Here, the ALJ found Plaintiff’s statements not credible because they are inconsistent with her daily 8 activities and inconsistent with evidence showing Plaintiff’s diverticulitis symptoms were controlled 9 with treatment. (AR 30.) The Court takes each finding in turn. 10 a. Activities of Daily Living 11 First, the ALJ determined that Plaintiff’s activities of daily living are “are not limited to the 12 extent one would expect, given the complaints of disabling symptoms and limitations.” (AR 30.) As 13 summarized by the ALJ, the record demonstrates Plaintiff prepares simple meals daily (AR 322, 380, 14 1567), performs “light housecleaning” (AR 322, 1567), unloads and loads the dishwasher (AR 322), 15 folds laundry (AR 380), drives (AR 381, 725, 1567), goes out alone (323, 381, 725), shops for 16 groceries (AR 323, 381, 1567), uses public transportation (AR 381), and can take care of self-dressing, 17 self-bathing, and personal hygiene (AR 725). 18 An ALJ may properly consider a claimant’s daily activities when evaluating credibility. Fair 19 v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (the nature of daily activities may be considered when 20 evaluating credibility). In evaluating a claimant’s credibility, an ALJ may also consider 21 inconsistencies between the claimant’s testimony and the claimant’s conduct and whether the claimant 22 engages in daily activities inconsistent with the alleged symptoms. Molina, 674 F.3d at 1112. Even 23 where those activities suggest some difficulty functioning, they are grounds for discrediting Plaintiff’s 24 testimony to the extent that they contradict claims of a totally debilitating impairment. Id. at 1113. 25 The Court finds that Plaintiff’s above-described activities tend to suggest that she may still be 26 able to perform, on a sustained basis, the basic demands of the occupations identified by the ALJ at 27 steps four and five (see AR 31–32). See Fair, 885 F.2d at 603 (finding that if a claimant has the ability 28 to perform activities “that involved many of the same physical tasks as a particular type of job, it 1 would not be farfetched for an ALJ to conclude that the claimant’s pain does not prevent her from 2 working”); see also, e.g., Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008) (finding 3 that the ALJ sufficiently explained his reasons for discrediting the claimant’s testimony because the 4 record reflected that the claimant performed normal activities of daily living, including cooking, 5 housecleaning, doing laundry, and helping her husband managing finances); Morgan, 169 F.3d at 600 6 (ALJ’s determination regarding claimant’s ability to “fix meals, do laundry, work in the yard, and 7 occasionally care for his friend’s child” was a specific finding sufficient to discredit the claimant’s 8 credibility); Kelly v. Astrue, 471 F. App’x 674, 677 (9th Cir. 2012) (holding that ALJ properly made 9 an adverse credibility finding because, in part, claimant’s daily activities included driving, washing 10 the dishes, shopping, and caring for her two children); Nelson v. Colvin, No. 1:15-cv-00696-SKO, 11 2016 WL 3407627, at *20 (E.D. Cal. June 20, 2016) (ALJ properly discredited subjective complaints 12 of claimant who suffered from chronic back problems where claimant engaged in activities such as 13 preparing simple meals, washing dishes, driving a car, shopping for groceries and household supplies 14 2–3 times a week, walking up to a mile, using a computer for about half an hour at a time, visiting 15 with family, mopping and vacuuming, independently handling her own finances, and doing yoga tapes 16 at home.). 17 The record also contains some contrary evidence, such as Plaintiff’s statements that ability to 18 perform household chores is hampered by pain. (See AR 57, 58.) The ALJ’s decision properly 19 recognized that Plaintiff has some work limitations because of pain. (See AR 27 (assessing a light 20 RFC with additional postural and manipulative limitations).) The Court concludes, however, that the 21 ALJ properly discredited Plaintiff’s testimony that her limitations render her completely unable to 22 work. Fair, 885 F.2d at 604; see also Bunnell, 947 F.2d at 346 (“So long as the adjudicator makes 23 specific findings that are supported by the record, the adjudicator may discredit the claimant’s 24 allegations based on inconsistencies in the testimony or on relevant character evidence.”). Where the 25 ALJ makes a reasonable interpretation of Plaintiff’s testimony, it is not the Court’s role to second- 26 guess it. Rollins, 261 F.3d at 857 (affirming ALJ’s credibility determination even where the 27 claimant’s testimony was somewhat equivocal about how regularly she was able to keep up with all 28 the activities and noting that the ALJ’s interpretation “may not be the only reasonable one”). 1 b. Control of Symptoms 2 The other reason given by the ALJ for discrediting Plaintiff’s subjective statements is that her 3 “condition appeared to improve at least somewhat after her colectomy.” (AR 30.) The record shows 4 that Plaintiff underwent surgery in February 2019 to remove the diseased segment of her colon. (AR 5 787, 924, 952–57.) Later that month, Plaintiff reported that her diverticulitis pain was “completely 6 resolved.” (AR 925.) She reported a recurrence of pain in March 2019, but it had improved in May 7 2019 and was associated with constipation. (AR 962, 969.) In September 2019, Plaintiff denied any 8 fevers, chills, nausea, vomiting, diarrhea, or constipation. (AR 1441.) As late as January 2020, 9 Plaintiff reported that she has “no symptomatology” of her diverticulitis. (AR 1567.) 10 In evaluating a claimant’s claimed symptoms, an ALJ may find a plaintiff less credible when 11 the record shows their symptoms are controlled. See 20 C.F.R. § 404.1529(c)(3)(iv); see also Warre 12 v. Comm’r, 439 F.3d 1001, 1006 (9th Cir. 2006); Morgan, 169 F.3d at 599 (ALJ’s adverse credibility 13 determination properly accounted for physician’s report of improvement); Odle v. Heckler, 707 F.2d 14 439, 440 (9th Cir. 1983) (affirming denial of benefits and noting that claimant’s impairments were 15 responsive to treatment). Here, the ALJ reasonably concluded from the record that Plaintiff’s 16 diverticulitis symptoms were “at least somewhat” controlled during the relevant period. 17 Plaintiff criticizes the ALJ for “fail[ing] to address Plaintiff’s pre-surgical symptoms.” (Doc. 18 12 at 14–15.) But the ALJ did discuss Plaintiff’s diverticulitis symptoms she experienced prior to her 19 surgery. (See AR 29 (discussing Plaintiff’s “intermittent left lower quadrant pain” documented from 20 November 2018 through January 2019).) Nevertheless, to the extent that the ALJ may have erred in 21 discrediting Plaintiff’s subjective symptom testimony partly because of symptom improvement, the 22 error is harmless, because the ALJ cited another clear and convincing reason for their credibility 23 determination, infra. See Carmickle v. Comm’r of Soc. Sec., 533 F.3d 1155, 1162–63 (9th Cir. 2008). 24 Thus, the ALJ did not err in finding Plaintiff’s subjective symptom testimony and statements “not 25 entirely credible.” 26 V. CONCLUSION AND ORDER 27 After consideration of Plaintiff’s and the Acting Commissioner’s briefs and a thorough review 28 of the record, the Court finds that the ALJ’s decision is supported by substantial evidence and is 1 therefore AFFIRMED. 2 The Clerk of this Court is DIRECTED to enter judgment in favor of Defendant Kilolo 3 Kijakazi, Acting Commissioner of Social Security, and against Plaintiff. 4 IT IS SO ORDERED. 5 6 Dated: February 22, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28